author: SHANGLER, Presiding Justice.

text:
    Billy Joe CRAIG and Betty A. Craig, Plaintiffs-Appellants, v. IOWA KEMPER MUTUAL INSURANCE COMPANY, Defendant-Respondent.
    Nos. KCD 28153 and KCD 28154.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      Edward J. Murphy, Inc., Butler, Fred S. Selsor, Kansas City, for plaintiffs-appellants and plaintiffs-respondents.
    Don B. Roberson, W. James Foland, Kansas City, for defendant-appellant Iowa Kemper Mutual Insurance Co. and for Defendant-Respondent Iowa Kemper Mutual Insurance Co.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Justice.

The plaintiffs Craig brought their petition in four counts on causes of action which arose from the uninsured motorists coverages of the liability policy issued to them by the defendant Kemper Mutual Insurance Company. The parties cross-appeal from adverse judgments entered severally.

These disputes derived from a collision of March 27, 1970 between Ward and Welborn which took the life of the infant Craig, son of the plaintiffs, then a passenger in the Ward automobile driven by the brother of Mrs. Craig. Ward was then an uninsured motorist and Welborn was insured by Allstate.

The parents Craig brought an action for the wrongful death of the child against both Ward and Welborn as joint tort-feasors. At the time of the casualty the plaintiffs Craig were insured under a liability policy issued by the defendant Iowa Kemper which, as required by Sec. 379.203, RSMo 1969, provided uninsured motorist coverage for $10,000 for a single injury or death. The plaintiffs notified the defendant Iowa Kemper that they claimed under that coverage and also under the medical payment provision of the policy. An attempt at negotiation followed but rancor between the attorneys foiled the effort. Iowa Kemper intervened in the litigation between the Craigs and tortfeasors Ward and Welborn but withdrew when Ward denied the Iowa Kemper request to direct the defense. On December 20, 1972, a jury returned a verdict of $23,500 for plaintiffs Craig against both Ward and Welborn. Iowa Kemper had offered the Craigs $7,500 to settle their claim against uninsured Ward before withdrawal from the litigation. The defendant Welborn filed a timely motion for new trial. The defendant Ward made no complaint of error and the judgment as to him became final.

Within thirty days of judgment [on January 5, 1973], Iowa Kemper offered the Craigs $9,500 in full settlement of their claim under the uninsured motorist coverage. The Craigs, however, demanded the full $10,000 coverage but then, on February 12, 1973, after counsel discovered that the Iowa Kemper policy covered two automobiles, not only one, the Craigs withdrew all offer to settle. Thus it was that on February 14, 1973, the Craigs brought their petition in four separate counts against the defendant Iowa Kemper.

Count I sought recovery under the uninsured motorist coverage on the first Craig automobile for $10,000 plus interest from December 20, 1972 [the date of verdict against Ward and Welborn]. Count II sought to stack an additional $10,000 plus interest under the uninsured motorist coverage on the second Craig automobile. Count III sought recovery under Secs. 375.-296 and 375.420, RSMo 1969, for statutory penalty and attorney fee for vexatious refusal to pay at least one of the uninsured motorist coverages in consequence of the December 20, 1972 verdict. Count IV sought recovery for actual and punitive damages for the tortious breach of duty by insurer Iowa Kemper to deal with the Craigs as policyholders in fairness and good faith.

After this petition was brought, Iowa Kemper on February 21, 1973, made formal payment of $10,100 to the circuit clerk in the wrongful death action against Ward and Welborn. That sum was meant as full acquittance of the Iowa Kemper liability under uninsured motorist coverage and for the interest accrued on the judgment, as calculated by the insurer.

While the Craig suit against Iowa Kem-per pended, the Craigs sought and obtained [from the court with jurisdiction over their wrongful death action against Ward and Welborn] an order to approve a judgment in that cause , apportion damages and approve a partial satisfaction of the judgment. The transaction resulted in a $3,500 partial payment of the judgment by Wel-born and reserved to the Craigs the balance of the judgment — or $20,000. This prompted Iowa Kemper to counterclaim for subro-gation under the provisions of Sec. 379.203 against the Craigs for the $3,500 received by them in that suit as a setoff in the action between them on the uninsured motorist coverage.

The cause proceeded to trial to the court. After evidence, the plaintiffs had judgment for $10,000 plus interest from December 20, 1972 on Count I and for $10,000 without interest on Count II. The defendant had judgment on Count III for penalties for vexatious refusal to pay under the policy. The court had earlier entered summary judgment for the defendant on Count IV for bad faith conduct in the negotiation of settlement process. The court found for plaintiffs Craig on the Iowa Kemper counterclaim for subrogation.

The plaintiffs Craig appeal from the denial of interest on the judgment in Count II, from judgment against them on the Count III vexatious delay claim, and from the adverse summary judgment in the Count IV outrageous conduct claim. The defendant Iowa Kemper appeals on the contentions that the Craig settlement with the uninsured motorist without the consent of the insurer barred recovery under the express terms of the policy, and that the adverse judgment on the counterclaim was error.

I

Appeal by Plaintiffs A

Denial of Interest on the Count II Judgment

The plaintiffs Craig contend the trial court erred in denial of interest on the $10,000 judgment. They argue that the liability of insurer Iowa Kemper under the policy was fixed by the verdict entered against Ward on December 20, 1972 and so interest on that count, as well as on the $10,000 judgment on Count I, properly runs from that date. The defendant Iowa Kem-per, however, was responsible to the Craigs under the policy to pay only the sums which the insured was legally entitled to recover as damages from an uninsured motorist. At the time judgment was entered against Ward the liability of an insurer for multiple payments to an insured for the uninsured motorist coverage on several cars under a single policy had not yet become a fixed principle of law. The doctrine that uninsured motorist coverage in a single policy, which by the terms are made to apply separately to each vehicle listed shall be stacked in favor of the insured, was not declared until our decision in Cameron Mutual Insurance Company v. Madden [No. 26556 adopted May 5, 1975] and decided on transfer by the Missouri Supreme Court en banc on February 9, 1976 and reported at 533 S.W.2d 538. Therefore, it was only after judgment was entered July 7, 1975 on Count II that the payment of the $10,000 uninsured motorist coverage on the second vehicle became a fixed liability of Iowa Kemper. The right to that recovery was not vested until determined by the trial court. Payment was not due until then, and neither was interest. The judgment on Count II is affirmed.

B

Vexatious Refusal Penalty

The plaintiffs Craig next contend that the denial of their claim for statutory damages under Secs. 375.296 and 375.420 was error. These sections provide that in any action against an insurance company “to recover the amount of any loss under a policy” [§ 375.420], where the company vexatiously and without reasonable cause refuses to pay, the court or jury may, in addition, allow damages not to exceed ten percent of the loss and a reasonable attorney fee. These statutes were enacted, not as an additional recovery, but that the amount due under the insurance policy shall be paid without arbitrary refusal or recalcitrant delay by the insurer. Willis v. American National Life Insurance Company, 287 S.W.2d 98, 105[11, 12] (Mo.App.1956). By the terms of Sec. 375.420 only those actions ex contractu and not ex delicto — even where the tort arises from contract — may recover penalties. Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750, 756[6] (1950). Only an insured can suffer a loss under the statute, and not a third party who claims for a public liability. Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441, 448[12-14] (1946). That is to say, only where performance under the policy flows directly from the insurer to the insured or his beneficiary do these statutes aid. These actions are most aptly described as first party claims. Couch on Insurance 2d, § 23.11.

The obligation of insurer Iowa Kemper to pay $10,000 to the Craigs under Part IV of the policy did not accrue merely because they proved a loss but only after the damage was adjudicated to result from the legal liability of the uninsured motorist [Ward]. Thus, the claim of the Craigs did not become a loss under the policy within the terms of See. 375.420 — and so payable directly from the insurer to the insured— until the legal cause for the injury first was fixed on the uninsured motorist. Only then did the claim become a loss under the policy, and so, ex contractu —in this case, when final judgment was entered on the verdict of December 20, 1972 against Ward.

The provisions of uninsured motorist coverage reorder the normal postures between an insured and an insurer. They transform, in a singular way, the nominal insured into a third-party claimant and the nominal uninsured motorist into the actual insured. That is because to prove a claim under Part IV coverage the nominal insured must show the legal liability of the uninsured motorist. The insurer, for its part, in effect insures the uninsured motorist to the extent of the policy limits and so seeks to exonerate the uninsured motorist of liability to avoid payment to the policy insured. Put simply, the nominal insured and the insurer under this coverage are placed in an adversary relationship. Baxter v. Royal Indemnity Company, 285 So.2d 652, 656 (Fla.App.1973); Pretzel, Uninsured Motorists p. 121 (1972). Once the liability of the uninsured motorist has been adjudicated, the policy insured and the insurer are restored, not merely to their actual relationship, but to that of creditor and debtor as well. Couch on Insurance 2d § 23:11, p. 12. The claim then becomes a loss under the policy and vexatious refusal of the insurer to pay the loss becomes actionable under Sec. 375.420.

The conduct of the insurer which the Craigs contend proves the vexatious delay encompasses two episodes: (1) the negotiations to settle the wrongful death claim during the pendency of that action against uninsured motorist Ward and joint tort-feasor Welborn, and (2) the refusal to pay one $10,000 uninsured motorist coverage after judgment was entered on the $23,500 verdict against both tortfeasors.

The first of them rests on evidence of angry and discourteous responses by counsel for Iowa Kemper to the demand by the Craigs for payment of $10,000 on a virtually conceded liability. Counsel for the insurer first offered $5,000, then $7,500 and finally, after verdict but before judgment, $9,500 in settlement of the wrongful death claim against the uninsured motorist Ward. In the course of that exchange, counsel threatened to allow the Craig claim to go to judgment against Ward and thus force him into bankruptcy [presumably to embarrass Betty Craig — his sister] and so induce the plaintiffs to a disadvantageous settlement. In that course, also, Iowa Kemper first intervened to defend the uninsured motorist Ward but then withdrew from the litigation when Ward refused that gesture. These transactions, however, were not those of an insured against an insurer on a policy, but those of a third-party [albeit a nominal insured] who claimed against an insurer for the liability of an actual insured. Such conduct, however vexatious, does not arise upon a contract of insurance and allows no recovery under Sec. 375.420.

The other episode relates to conduct of the insurer after the $23,500 return of verdict against Ward and Welborn. On January 5, 1973, after the December 20, 1972 verdict but before the judgment against Ward — who filed no after-trial motion — became final, Iowa Kemper offered the Craigs $9,500 in full settlement under the uninsured motorist coverage. On February 5, 1973, counsel for plaintiffs once again demanded $10,000. Then, on February 12,1973 — presumably when the description of the second vehicle was discovered in the policy — counsel for the Craigs withdrew all previous offers. Thereafter, on February 21, 1973 — more than thirty days after the Craig judgment against uninsured motorist Ward for $23,500 became final — Iowa Kemper formally paid $10,100 into the registry of the court in acquittance of its calculated $10,000 indebtedness under the uninsured motorist coverage plus $100 interest earned on the judgment.

In consonance with explicated principles, the claim on the uninsured motorist coverage of the policy did not accrue to the Craigs against Iowa Kemper until the judgment against Ward became final on January 19, 1973. Then for the first time the Craigs became insureds under the uninsured motorist provision of the policy within the meaning of Sec. 375.420. Only then did their claim become a loss upon a policy — ex contractu — entitled to payment by Iowa Kemper without unreasonable delay. That obligation was actually discharged on February 21, 1973, a lapse of some thirty-three days after final judgment and indebtedness. At that time, however, the Craigs had withdrawn all demands, and refused to draw payment from the court clerk on the contention that the tender was only conditional. It remains apparent, however, that the Craigs and Iowa Kemper were then in the throes of a legal quandary — whether the uninsured motorist coverage on the multiple vehicles could be stacked — and that refusal of the tender was prompted by uncertainty as to whether such was a valid contractual right'. The insurer paid into court — albeit tardily — its good faith calculation of total indebtedness under the policy as the law then stood; but it was concern lest acceptance of the single $10,000 coverage compromise their claim to the second coverage that prompted the Craigs to reject the tender. In a word, there was no refusal to pay the proceeds of the policy, only a refusal to accept. The judgment of the circuit court which denied recovery to the Craigs under Sec. 375.420 rests on the logic of the circumstances and the exercise of that discretion will not be disturbed. Shirrell v. Missouri Edison Company, 535 S.W.2d 446, 448 (Mo. banc 1976); St. Clair v. Washington Fidelity Nat. Ins. Co., 89 S.W.2d 85, 88[3 — 5] (Mo.App.1936).

C

Tortious Failure of Iowa Kemper To Negotiate in Good Faith

The plaintiffs also appeal from the summary judgment entered by the trial court against them on Count IV. That pleading alleges the relationship of insured and insurer between the Craigs and Iowa Kem-per, the refusal by the insurer to pay at least one of the uninsured motorist coverages to the Craigs, that the insurer owed the Craigs the duty of good faith and fair dealing in the discharge of the insurance policy obligations, that the refusal of Iowa Kem-per to pay that coverage was willful, wanton and in conscious disregard of these rights, that the Craigs incurred additional litigation expense on that account and were entitled to actual and punitive damages.

Thus, both Count III and Count IV plead recovery for failure of the insurer to make payment under the policy to the insured in good faith, one ex contractu on an obligation created by statute, and the other ex delicto on an obligation implied by law. We need not consider whether the remedy of Sec. 375.420 precludes the tort cause of action [see: Leonard v. Fireman’s Ins. Co. of Newark, N.J., 100 Ga.App. 434, 111 S.E.2d 773 (1959)] because, for reasons given, there was no relationship of insurer and insured — essential to the tort recovery as pleaded — at the time of the bad faith conduct alleged.

The general jurisprudence recognizes that a policy of insurance imports the utmost good faith by the insurer to perform according to its terms. This principle extends to imply a covenant of good faith and fair dealing from every contract of insurance. The law thereby assumes the agreement of an insurer not to injure the right of an insured to receive the benefits of the contract. Couch on Insurance 2d, § 23:8 (Supp. p. 8). The courts apply this principle of an implied good faith [by whatever designation] to give an insured a remedy both on the policy — ex contractu —and in tort.

As applied to a first party claim on the policy, the covenant facilitates an insured to recover the benefits payable directly to him by the contract. Bowler v. Fidelity & Cas ualty Co. of New York, 53 N.J. 313, 250 A.2d 580, 587[14 — 17] (1969); Law v. Hawaiian Life Insurance Co., 51 Haw. 288, 459 P.2d 195, 197[1] (1969). As applied to a third party claim for the liability of an insured, the covenant imposes on an insurer which assumes control over the proceedings against the insured the duty of good faith to settle the claim within the policy limits and allows recovery in tort to the insured for breach of that duty. Zumwait v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750, 753[2] (1950); Appleman, Insurance Law & Practice, §§ 4711-12 (supp.).

The cause of action in tort for breach of the obligation of fair dealing presupposes an insurer and insured in a subsisted fiduciary relationship. Rova Farms Resort, Inc. v. Investors Ins. Co. of Ameri-ca, 65 N.J. 474, 323 A.2d 495, 505[4-6] (1974); Baxter v. Royal Indemnity Co., 285 So.2d 652, 656 (Fla.App.1973); Howard v. State Farm Mutual Auto Ins. Co., 60 Wis.2d 224, 208 N.W.2d 442, 443[1] (1973); Garner v. American Mutual Liability Ins. Co., 31 Cal.App.3d 843, 107 Cal.Rptr. 604, 607[l-4] (1973). The uninsured motorist provision of the policy [Part IV] does not purport to place the Craigs and Iowa Kemper in that posture of an insured and insurer in a relationship of trust essential to the creation of a duty of good faith answerable in tort. The mere relationship of insurer and insured does not import an obligation of trust. Rather, in the absence of special circumstances, the relation between the parties to a contract of insurance is that of debtor and creditor. Moses v. Manufacturers Life Insurance Company, 298 F.Supp. 321, 323[4] (D.C.S.C.1968); Stockett v. Penn Mutual Life Ins. Co., 82 R.I. 172, 106 A.2d 741, 743[5] (1954); Walsh v. Campbell, 130 Ga.App. 194, 202 S.E.2d 657, 661[4] (1973); Couch on Insurance 2d, § 23:11.

At the time of the bad faith conduct by Iowa Kemper against the Craigs alleged in County IV, they were neither in a relationship of actual insurer and insured nor bound together in trust. As our prior discussion explains, the Craigs were then in the position of third parties who claimed against the liability of Ward and so adversely against Iowa Kemper. The actual relationship of insurer and insured was not restored until that liability was adjudicated. Nor was there a relationship of trust between them.

The fiduciary duty of an insurer for good faith rests on the reservation of exclusive right to contest or negotiate the claim of liability brought against the insured, and so withhold from the insured the right to settle without consent of the insurer. Zum-wait v. Utilities Ins. Co., supra, l.c. 753[2], Such terms of agreement repose in the insurer the power to act for the insured, akin to authority a client vests in an attorney, or a principal in an agent — each a relationship of inherent fiduciary obligation. Rova Farms Resort, Inc. v. Investors Ins. Co. of America, supra, l.c. 505[6]; Baxter v. Royal Indemnity Company, supra, l.c. 655[4-6];. Appleman, Insurance Law & Practice §§ 4711 and 4712. The duty to deal in good faith, therefore, does not arise from consent and contract but from the nature of the relationship. Rova Farms Resort, Inc. v. Investors Ins. Co. of America, supra, l.c. 505[6]; Zumwait v. Utilities Ins. Co., supra, l.c. 753[2]; Richardson v. Employers Liability Assurance Corp., 25 Cal.App.3d 232, 102 Cal.Rptr. 547, 552[l-4] (1972).

The uninsured motorist provision of the contract [Part IV Coverage J] is the agreement of Iowa Kemper “to pay all sums which the insured [the Craigs] shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile”. These contract terms place the policy insured [the Craigs] in the posture of a member of the public who seeks recovery for injury from the negligence of a motorist [uninsured motorist Ward] whose liability is insured by Iowa Kemper. This agreement creates no special relationship between the policy insured and the insurer but only the mere contract to pay damages up to the policy limits upon determination that the uninsured motorist is legally liable for the injury to the policy insured. No independent duty of good faith and trust accrues to the policy insured under this coverage. The very contrary results: under the uninsured motorist provision the policy insured and the insurer becomes adversaries who deal with wariness, not principal and agent who deal with trust. Baxter v. Royal Indemnity Company, supra, l.c. 656; Walsh v. Campbell, supra, l.c. 662[5]. The postulate which creates an independent duty of good faith between a liability insurer and the policy insured has no validity as to uninsured motorist coverage. That duty rests on a fiduciary relationship which results from the enforced surrender to the insurer of control of litigation brought against the insured— and which allows redress to the insured where failure of the insured to negotiate in good faith subjects the insured to excess liability.

The policy insured under the uninsured motorist coverage does not yield control of the litigation to the insurer. The refusal of the insurer to settle the claim of the policy insured under such coverage cannot expose him to the risk of judgment in excess of liability simply because the policy insured is not exposed to liability. An excess judgment against the uninsured motorist can only benefit, not endanger, the policy insured.

There can be no tort in the absence of a duty, and no duty of good faith by an insurer to an insured in the absence of a fiduciary relationship between them. The allegations of Count IV do not plead a duty of good faith by Iowa Kemper to the Craigs to settle the claim under the uninsured motorist provision which the law recognizes. While the liability of the uninsured motorist to the Craigs remained unadjudicated, Iowa Kemper had no more duty of good faith to the Craigs than to any other third-party claimant.

The Craigs contend, however, that their claim must be treated as that of a first party against the insurer and asks that the question which the court in Dyer v. General American Life Insurance Company, 541 S.W.2d 702 (Mo.App.1976), did not reach be determined to allow an insured a cause of action in tort against an insurer for failure to settle the claim payable by the policy terms directly to the insured. Dyer was a claim by an insured under an individual accident policy for actual and punitive damages for the bad faith refusal by the insurer to pay disability benefits. The court noticed that the cause of action attempted had no precedent in our law and, in any event, that the bad faith was not sufficiently pleaded — and so sustained dismissal of the petition. We have determined that under the terms of the uninsured motorist provision, no benefit accrued to the Craigs directly against Iowa Kemper until the liability of uninsured motorist Ward had been adjudicated in favor of the Craigs. Only then, we restate, did a claim accrue to the Craigs directly against Iowa Kemper on the policy. In the sequence of this litigation, the Craigs owned that benefit thirty days after the judgment of December 20, 1972; but that failed, not because of a bad faith refusal by Iowa Kemper, but because the Craigs chose not to accept the tender lest they compromise the claim to a duplicate coverage — then still a matter of doubtful entitlement. We do not say whether a bad faith refusal by an insurer of a benefit owed directly to an insured on a policy can support an action in tort, but only that the tenor of our law suggests otherwise.

The summary judgment on Count IV of the petition was properly entered and is affirmed.

II

Appeal of Defendant A

Effect of Policy Settlement Exclusion Provision

At the trial Iowa Kemper contended that whatever liability was otherwise owed to the Craigs under Part IV of the policy [Protection Against Uninsured Motorists] by virtue of their judgment against Ward was prevented by their failure to comply with Exclusion (b) provision:

Exclusions: This policy does not apply under Part IV:
(b) To bodily injury to an insured with respect to which such insured, his legal representative, or any person entitled to payment under this coverage, shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor .

The plaintiffs Craig settled with the joint tortfeasor Welborn for $3,500 as documented by the approval of judgment and approval of partial satisfaction by the trial court, and the partial release by the Craigs. These transactions were without the consent of Iowa Kemper. The insurer relies on Kisling v. MFA Mutual Ins. Co., 399 S.W.2d 245 (Mo.App.1966) for the validity of the policy exclusion.

The consent exclusion before the Kisling court prevented uninsured motorist coverage recovery for bodily injury where the insured [l.c. 248] “ . . without the written consent of [the insurer], ma[de] any settlement with, or prosecute[d] to judgment any action against any person or organization who may be legally liable therefor.” Thus, the Kisling exclusion prohibited both settlement and litigation of a claim to judgment without the consent of the insurer. The court separated these injunctions. As to the judgment prohibition, Kis-ling found [l.c. 249] that the exclusion tended to oust the jurisdiction of courts and deny resort to remedy in violation of Sec. 435.010, and so void as contrary to public policy. As to the settlement prohibition, Kisling noted first [l.c. 251] that uninsured motorist coverage was only contractual, and so no public policy prevented an insured from agreement to the consent of the insurer before settlement with the person legally liable for the injury — or forego the benefits of coverage. Kisling concluded [l.c. 252] that in the absence of a contrary public policy or other prohibition of law, the parties to a contract are free to condition or limit their undertaking, even to the forfeiture of benefits, as they will.

A statute has since been enacted [Sec. 379.203, Laws of 1967 as amended by Laws of 1971] which mandates that no automobile liability insurance policy may issue in Missouri unless the coverage provides for recovery by an insured for bodily injury or death from the legal liability of an uninsured motorist in not less than the limits defined in Sec. 303.030. This means that the public policy of Missouri now declares that the minimum benefits defined in Sec. 303.030, without diminishment, shall be available to an insured injured by an uninsured motorist. It means also that an insurance policy provision which designs to restrict the insured from these benefits evades the purpose of the statute and is void as against public policy. Steinhaeufel v. Reliance Ins. Companies, 495 S.W.2d 463, 468[4, 5] (Mo.App.1973); Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 152[5] (Mo.App.1972).

Exclusion (b) under Part IV of the policy abridges the mandatory minimum coverage of Sees. 379.203 and 303.030 for recovery against an uninsured motorist legally liable for the injury. The obligation of the insurer under Sec. 379.203, as well as under the uninsured motorists provision of the policy, was to pay all sums [within the limits of Sec. 303.030] which the insured shall be legally entitled to recover as damages from injury or death from the uninsured motorist. The law creates a source of compensation for the person injured by the tortious operation by an owner or operator of an uninsured motor vehicle. The right to the full damages [within the limits of Sec. 303.030] proved from the legal liability of the uninsured motorist is mandatory under the statute and may not be impaired by policy exclusion. The consent prohibition attempts to make a mandatory obligation of full coverage only conditional. In effect, the policy exclusion only chills settlements with joint tortfeasors to the detriment of the injured person and subserves no legitimate purpose of the insurer. This policy exclusion, when applied to tortfeasors other than the uninsured motorist, restricts the mandatory coverage under the statute, and is void. Hawaiian Insurance & Guaranty Co. v. Mead, 14 Wash.App. 43, 538 P.2d 865, 867[1] (1975); Harthcock v. State Farm Mutual Automobile Ins. Co., 248 So.2d 456, 459[4] (Miss.1971).

B

The Iowa Kemper Claim To Subrogation

The plaintiffs Craig made a partial settlement and release with joint tortfeasor Welborn for $3,500 and satisfied the judgment against Ward and Welborn to that extent. Iowa Kemper contends that § 379.-203.4 entitles an insurer to reimbursement from the proceeds recovered by an injured person from a joint tortfeasor. That section provides:

In the event of payment to any person under the coverage required by this section . . the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement, or judgment resulting from the exercise of any rights of recovery of such person against any person ... legally responsible for the bodily injury for which such payment is made [Emphasis added]

The argument of Iowa Kemper assumes that the person legally responsible includes a joint tortfeasor. It is clear, however, that the right of reimbursement the statute describes is by subrogation, and that the person legally responsible describes the uninsured motorist for whose delict the insurer has paid, and not the joint tortfeasor. State ex rel. Manchester Ins. & Ind. Co. v. Moss, 522 S.W.2d 772, 775[7] (Mo. banc 1975); Kroeker v. State Farm Mutual Automobile Insurance Company, 466 S.W.2d 105, 110[6] (Mo.App.1971); Harthcock v. State Farm Mutual Automobile Insurance Company, supra, l.c. 459[3]. This provision supports the dominant statutory purpose that coverage for injury by an uninsured motorist shall not be diminished by agreement or device. Accordingly, Iowa Kemper has no claim against the proceeds received by the Craigs from joint tortfeasor Welborn. The recourse of such an insurer against a joint tortfeasor is not by subrogation, but by contribution. Sec. 537.060. The counterclaim was properly denied.

The judgment of the court on Counts I, II, III and IV of the Craig petition and on the counterclaim of Iowa Kemper is affirmed in each respect. The costs are assessed against the parties equally.

      . That court had earlier sustained the Welborn motion for new trial and, apparently, the approval of judgment was a reformulation of the $23,500 verdict as a final disposition of that litigation.

      . The petition pleads recovery under both Secs. 375.296 and 375.420. These sections are cast in parallel terms, but Sec. 375.296 has application only to an insurance company not authorized to do business in this state, and so has no application to this case. Willis v. American National Life Ins. Co., infra, l.c. 102. Only the application of Sec. 375.420 remains genuinely in issue.

      . Aufrichtig v. Columbian Nat. Life Ins. Co., 298 Mo. 1, 249 S.W. 912 (1923) [accidental injury insurance policy]; Willis v. American National Life Insurance Company, 287 S.W.2d 98 (Mo.App.1956) [life insurance policy]; Rohlfing v. State Farm Fire and Casualty Company, 349 S.W.2d 472 (Mo.App.1961) [fire and explosion policy]; Housing Authority of Clinton v. Baumann, 512 S.W.2d 436 (Mo.App. 1974) [contractor’s bond]; Fohn v. Title Insurance Corporation of St. Louis, 529 S.W.2d 1 (Mo. banc 1975) [title insurance policy]. A more complete catalogue of coverages entitled to the protection of these statutes is found in the annotation of Sec. 375.420, notes 78 et seq.

      .The claim of the Craigs for statutory penalties is confined to failure to pay only one uninsured motorist coverage [$10,000] because the principle which allows a claimant to stack the uninsured coverages of multiple vehicles described in a single policy was not declared until after judgment was entered for the Craigs on Counts I and II of their petition against Iowa Kemper.

      . Those courts which adopt the principle enforce the implied covenant of good faith to give effect to the reasonable expectations of the insured on the obligations assumed by the insurer directly to him. Couch on Insurance 2d, § 23:11 (Supp. p. 8). Our law does not recognize the implied covenant, as such, but gives that redress by canons of construction, but as to those first party claims by the insured on the contract [see note 3 infra], § 375.420 creates a substantive cause of action for penalty against the insurer for unreasonable delay from a failure of good faith. Thus, our law not only requires an insurer to meet the reasonable expectations of the insured on the contract, but by the statute shifts the expense of delay in payment of the claim onto the insurer. Willis v. American National Life Insurance Co., supra, l.c. 107.


source: Caselaw Access Project

author: DONALD L. MASON, Special Judge.

license: Public Domain

text:
    Nadine GODSY, Appellant-Respondent, v. Sherman M. GODSY, Jr., Respondent-Appellant.
    Nos. KCD 28689, KCD 28804 and KCD 28805.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      Thaine Q. Blumer, Kansas City, for appellant-respondent, Nadine Godsy.
    James R. Wyrsch, Ronald R. Holliger, Kansas City, for respondent-appellant, Sherman M. Godsy, Jr.
    Before SOMERVILLE, P. J., TURNAGE, J., and DONALD L. MASON, Special Judge.
   DONALD L. MASON, Special Judge.

The issues raised on these cross appeals necessitate a detailed recitation of the chronology of events and evidence which bring these antagonists, who were once fond enough of each other to get married and conceive one child, to this Court. The parties will sometimes be referred to in the roles they occupied in the trial court. Our review is as promulgated in Murphy v. Car-rón, 586 S.W.2d 30 (Mo. banc 1976).

The parties were married on May 1, 1964, from which union a male child was born in 1966. On July 7,1971, Nadine Godsy filed a petition for divorce alleging the necessary elements to obtain that relief under the statutes then in force. On July 14, 1972, Sherman M. Godsy, Jr., filed his First Amended Answer and Cross-Petition, with leave of court, likewise alleging the necessary elements which would entitle him to the divorce, if proven. In December, 1972, the parties and the trial judge agreed to a special setting on February 15, 1973, to try the case on the merits. Six to eight continuances had previously been requested and granted. After obtaining the special setting the parties, through their attorneys, continued to negotiate a property settlement agreement, which negotiations were fruitless, mainly because defendant refused to sign an agreement which contained his previously accepted terms.

On January 23, 1973, defendant’s then counsel wrote the docket clerk that it appeared the case would be resolved without trial and to remove the case from the trial docket for February 15th. On January 29, 1973, plaintiff’s then counsel directed a letter to the trial judge, with a copy to the docket clerk, disputing the assertions of his opponent and requesting that the matter be retained on the trial docket. Under date of February 5, 1973, but not mailed until February 7th, and received by plaintiff’s counsel on February 8th, defendant’s attorney advised that he would not be able to try the case on February 15th as he and his family were leaving on February 10th for a ten day vacation to Hawaii and suggested the trial be postponed to the end of the month. Plaintiff’s attorney responded by return mail, and personally, that he would not agree to a continuance and that he and his client would appear on trial date prepared for trial. He also verbally apprised the partner of defendant’s counsel of his intentions. Defense counsel, or his partner, advised defendant that he need not appear for trial as the case was going to be continued.

Plaintiff and her counsel appeared as scheduled. Neither defendant nor his retained counsel appeared. An office associate of defendant’s counsel appeared and orally moved for a continuance. Judge Clymer, after noting the many continuances and the special setting, denied the continuance and the case was heard as a non-contested matter. Judgment was entered granting plaintiff the divorce, custody of the minor child and alimony in gross of $100,000.00. In addition plaintiff received a judgment of $4,320.00 for attorney fees for her first attorney and $5,932.00 for her trial attorney. The alimony and child support judgment was based upon testimony heard by the Court that the parties owned real estate valued at $500,000.00 upon which they lived and operated three pay fishing lakes. The fishing lakes provided annual taxable income of some $45,000.00. In addition the parties owned personal property in excess of $100,000.00 value. The attorney fee awards were also supported by the necessary and competent evidence.

On February 28, 1973, defendant timely filed his motion for new trial, which was subsequently overruled. He thereafter filed his notice of appeal to this Court, but the appeal was dismissed as not being timely filed (reported at 521 S.W.2d 449). Thereafter, certiorari was denied by the United States Supreme Court at 423 U.S. 887, 96 S.Ct. 181, 46 L.Ed.2d 119.

By this time both parties had changed legal counsel to their present attorneys. On August 5, 1975, defendant caused to be filed in the divorce case (No. 749,413) a pleading denominated as a Motion to Set Aside Judgment (hereafter “Motion”). The next day Mr. Godsy, as plaintiff, filed a pleading entitled Petition to Set Aside Judgment and for an Injunction (hereafter “Petition”) (Case No. DR75-4195). The Motion and the Petition are almost identical in context and content. We will summarize, and at times paraphrase, the allegations contained in each pleading.

In the Motion defendant pleaded (1) the Motion was pursuant to Rules 74.32 and 74.78, in the nature of coram nobis, and that the judgment should be set aside for fraud; (2) the entry of default judgment on February 15, 1973; (3) the filing of the Motion within three years; (4) that Rule 74.32 permits setting aside judgments within three years; (5) that the judgment was secured as a result of a misapplication of, and failure to follow, established rules of procedure; (6) that the clerk of the court had published a docket advising defendant’s counsel that the case was on a motion to modify docket and that a motion for additional temporary alimony and child support was then pending, which plaintiff’s counsel advised was going to be heard; (7) no notice of entry of order and judgment as provided by Rule 74.78; (8) that the judgment entry and transcript shows no notice was given to defendant or his counsel; (9) that the court exceeded its jurisdiction in entering default judgment with the motions for temporary monies and to strike defendant’s pleadings being on file and not ruled; (10) defendant’s due process rights under both the United States and Missouri Constitutions were violated by lack of adequate notice; (11) lack of competent and adequate evidence to permit entry of judgment and error in denying defendant’s request for a continuance; (12) that evidence outside the record was available to support setting aside the default judgment; (13) that fraud was perpetrated upon defendant and his counsel by plaintiff’s counsel agreeing to a continuance and that the case was settled and no hearing was necessary, and that only motions to modify would be heard; (14) that defendant was not represented at the hearing by his attorney in violation of the 6th and 14th Amendments of the United States Constitution and Article I, Section 10, and Article I, Section 14, of the Missouri Constitution; (15) that defendant was told by his counsel not to appear and was thereby free of personal fault and negligence; (16) defendant’s counsel did not properly represent him which constituted a fraud in procurement of the judgment; (17) that the judgment was procured as the result of unavoidable accident or excusable mistake of defendant who did not appear because of advice of counsel, which counsel was inattentive, inadequately prepared and gave bad advice; (18) defendant had no adequate remedy at law; and (19) that defendant had a meritorious defense based on the marital misconduct of plaintiff (which was definitively pleaded).

The Petition alleged the same grounds and, additionally, asserted that Mrs. Godsy had caused various attachments, levies and executions to issue against the real estate owned by the parties in order to collect the judgments rendered in her favor in the divorce case. In this case plaintiff (Mr. Godsy) prayed that the default judgment be set aside and that defendant (Mrs. Godsy) be enjoined from further judgment collection efforts. Defendant did not file an answer to this petition until March 27, 1976, after hearing, judgment and filing of notice of appeal. She appeared at the hearing on the Motion and Petition and offered evidence, without objection. In this posture the failure to file responsive pleadings is deemed waived. Gregg v. Johnston, 546 S.W.2d 754 (Mo.App.1977).

The Motion and Petition were consolidated for hearing in the trial court, and the hearing was commenced on September 12, 1975, but not completed. The evidentiary hearing was completed January 19, 1976, and taken under advisement. On February 13, 1976, Judge Clymer entered his order sustaining the Motion to Set Aside Judgment (as filed in Case No. 749,413). It is from this order that Mrs. Godsy appeals in Case No. KCD-28689.

On April 5,1976, the parties filed a stipulation that the trial court could consider all the evidence heard in both cases in ruling on the Petition to Set Aside Judgment, in ruling on the Motion for Attorney Fees Pendente Lite, filed on March 2, 1976, and the Motion for the Appointment of a Receiver, filed also on March 2, 1976. On April 5, 1976, an order was entered awarding attorney fees of $4,320.00, plus 6% interest from February 15, 1973, for services performed by plaintiff’s first attorney; $5,932.00, plus 6% interest from February 15, 1973, for services performed by plaintiff’s second attorney; and $4,000.00 for services performed by plaintiff’s present attorney. On the same date the Court appointed a Receiver for the marital property and business, but that Receiver never qualified or served. It is from these orders that Mr. Godsy appeals in Case No. KCD-28804. Also, on the same date the Court entered an order sustaining the Petition to Set Aside Judgment (as filed in Case No. DR75-4195). No injunctive relief was ordered. It is from this order that Mrs. Godsy appeals in Case No. KCD-28805. No findings of facts and conclusions of law were requested or filed in support of the various judgments appealed from. These appeals have been consolidated. With this background and the delineation of the present status of the parties we will discuss the evidence presented at the hearing on the Motion and the Petition as is necessary to rule on the issues presented in these cross-appeals.

Evidence was adduced as to the pretrial activities of the respective counsel and the reason why defendant and his counsel did not appear for the scheduled hearing, as above enunciated. Mr. Godsy testified as to the pre-marriage acquisition of a portion of the real estate and the post-marriage acquisition of the remainder and the conveying of title to all of the real estate to him and his wife as tenants by the entirety. No evidence was presented to overcome the presumption of gift. He opined the value of the real estate and improvements to be no more than $115,000.00 and offered an expert witness who testified to the same effect. He also denied that the fishing lakes, and his hauling of fish during the winter months, produced annual taxable income as testified to by Mrs. Godsy in the divorce proceeding. Taxable income declared on the 1971,1972 and 1973 individual returns filed by Mr. Godsy supports his testimony. He also testified that the allegations pleaded that his wife was not the innocent and injured party were true. Nadine Godsy, called as a witness by Sherman Godsy, reiterated her opinions as to property values and income in conformance with her testimony at the divorce hearing. She also offered a witness who testified that in September, 1973, he had several corporate clients, each of whom were willing to pay the Godsys $600,000.00 for the real estate (70 plus acres), and communicated that to Mrs. Godsy and the attorneys for the respective parties. The parties also stipulated that the reasonable charges for legal services performed by Mr. Blumer in representing Mrs. Godsy on the earlier appeal and in the United States Supreme Court was $2,625.00 plus an expense of $230.00 for the printing of the briefs. The testimony also developed that Mrs. Godsy was unemployed and without funds. This is a summarization of the lengthy evidentiary hearing, but fairly and adequately condenses the evidence adduced, and is the essence of that evidence.

We will first consider the ruling of the trial court on the Motion, excluding from that consideration for the present time those allegations which seek to invoke equity jurisdiction. It must be remembered that the Motion was filed on August 5, 1975, almost two and a half years after the entry of judgment and almost two years after the judgment became final. With certain exceptions, which we will hereafter discuss, a final judgment is beyond the reach of the trial court to alter or vacate, Rule 81.05, V.A.M.R.; Hughes v. St. Louis National League Baseball Club, Inc., 359 Mo. 993, 224 S.W.2d 989 (Mo.banc 1949); Highland Gardens Nursery, Inc. v. North American Developers, Inc., 494 S.W.2d 321 (Mo.1973); Perryman v. Perryman, 507 S.W.2d 671 (Mo.App.1974). The allegations in the Motion that might be perceived as asserting a meritorious defense or excusable neglect, which factors are considered in that class of cases exemplified by Stieferman v. Stieferman, 219 S.W.2d 864 (Mo. App.1949); Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975); and Krieber v. Krieber, 420 S.W.2d 376 (Mo.App.1967), are not pertinent or controlling here because, as stated, the judgment of February 15, 1973, was a final judgment when the Motion was filed in August, 1975, and the trial court was without jurisdiction to alter or vacate that judgment, Wiseman v. Lehmann, 464 S.W.2d 539 (Mo.App.1971); Bradley v. Bradley, 295 S.W.2d 592 (Mo.App.1956); Godsy v. Godsy, supra.

Further consideration requires that we note that the Motion may be treated “as a proceeding in equity constituting an attack upon a divorce decree which the court below had equity jurisdiction to consider,” S_ v. S_, 490 S.W.2d 344 (Mo.App.1973). We will, therefore, consider both the Motion and Petition in the context of invoking equity jurisdiction. We will view both pleadings from the five directions urged by the respondent, Sherman Godsy, who relies heavily on the case of Diekmann v. Associates Discount Corporation, 410 S.W.2d 695 (Mo.App.1966). In that case it is stated, “[o]ur procedural arsenal holds six weapons designed to bring down a final default judgment: [1] a separate suit in equity, [2] a statutory petition for review, [3] a nunc pro tunc order, [4] a motion in the nature of a writ of error coram nobis, [5] a motion showing fraud practiced on the court, and [6] a motion showing irregularity on the face of the record,” supra, at page 700. Respondent concedes a nunc pro tunc order was not the relief requested. We will identify these “weapons” as we discuss them.

Number six is within the scope of Rule 74.32, Missouri Rules of Civil Procedure. Mr. Godsy’s conception of the breadth of that rule is erroneous. That rule permits a judgment to be set aside for irregularity on the face of the record, but does not permit the introduction of extraneous evidence to invalidate an otherwise valid judgment, Dewey v. Dewey, 544 S.W.2d 857 (Mo.App.1976); Whitlock v. Whitlock, 395 S.W.2d 468 (Mo.App.1965). There is absolutely no showing that the judgment of February 15,1973, was irregular on its face. Therefore, the setting aside of that final judgment cannot be sustained on that ground.

Respondent, Sherman Godsy, also asserts that both pleadings are in the nature of a motion of writ of error coram nobis (number four above). This type of proceeding is predicated upon errors of fact, which facts if correctly known would have prevented the rendition of the judgment, Zahorsky v. Zahorsky, 543 S.W.2d 258 (Mo. App,1976). A motion for writ of error cor-am nobis is not intended to authorize any court to review or revise its decrees, Pike v. Pike, 239 Mo.App. 655, 193 S.W.2d 637 (1946). All of the evidence adduced only tends to prove that the trial court may have rendered a different judgment had both parties testified during the divorce proceedings. There is absolutely no showing that Mr. Godsy acquired knowledge of facts, after February 15, 1973, that would have prevented the rendition of some judgment on that date. Under the facts here pleaded and adduced, that remedy is not available, Dewey v. Dewey, supra, and the reversal of the judgment cannot be sustained on that ground.

In both pleadings Mr. Godsy asserts the filing of those pleadings within three years and also asserts that Rule 74.32 permits the setting aside of judgments within that time span. We have already discussed, and ruled, the scope of that rule. We conceive this allegation to be in the nature of a Petition for Review (number two above). Although not brought to our attention by the parties, or to the attention of the trial court, Section 452.110, RSMo., not repealed by the enactment of the Dissolution of Marriage Act, Laws of 1973, Sections 452.300 to 452.415, inclusive, provides, in part, “[N]o petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding.” This statute has long been in effect in this State and is fixed public policy, Bernstein v. Bernstein, 351 S.W.2d 46 (Mo.App.1961). Therefore, that “weapon” is not available in this case, Whitlock v. Whitlock, supra, and the reversal of the judgment cannot be sustained on that ground. There is an additional reason why a petition for review would not be permissible in this case, that being that Mr. Godsy was not in default within the meaning of Rule 74.045 and 74.12 V.A.M.R., he having been duly summoned and filing an answer.

In a proceeding in equity (number one above) the petitioner must plead and prove that the decree was procured by fraud (number five above) and that fraud must relate not to the propriety of the judgment itself but to the manner in which the judgment was obtained, Bernstein v. Bernstein, supra; Reis v. LaPresto, 324 S.W.2d 648 (Mo.1959); McCarty v. McCarty, 300 S.W.2d 394 (Mo.1957); Hemphill v. Quigg, 355 S.W.2d 57 (Mo.1962); Hemphill v. Hemphill, 316 S.W.2d 582 (Mo.1958); F. v. F., 333 S.W.2d 320 (Mo.App.1960); Jones v. Jones, 254 S.W.2d 260 (Mo.App.1953); and Cherry v. Wertheim, 25 S.W.2d 118 (Mo.App.1930), relied on by respondent in his brief.

All of these cases expound the same general principles as enunciated in the often cited case of Jones v. Jones, supra, at page 261, as follows: “It is well established that equity has jurisdiction to grant relief against a judgment upon the ground of fraud in its procurement so long as the complaining party is able to show that he himself was free from fault, neglect, or inattention to his case. But for the fraud to have existed in the procurement of the judgment, it must have related, not to the propriety of the judgment itself, but to the manner in which the judgment was obtained. In other words, the fraud must have been extrinsic or collateral to the matters which either were or could have been presented and adjudicated in the original proceeding, and not merely intrinsic in the sense of having pertained to the merits of the cause upon which the judgment of the court was rendered. In short, it is not the province of this feature of equitable jurisdiction to afford the losing party a retrial of matters either tried or concluded by the original proceeding, but instead relief is limited to those instances where the fraud was of such a character as to have forestalled an opportunity for the fair submission of the controversy. Of such is the situation where the losing party to an action had a meritorious defense to interpose, but was prevented, without fault on his own part, from setting up his defense by reason of the fraud, deceit or artifice of the successful party. In such an instance the fraud is to be regarded as having been perpetrated, not only upon the losing party, but upon the court as well, and if and when established constitutes a proper ground for equitable relief against the judgment.”

As can be plainly discerned from the evidence which we have already delineated, there was no showing that the judgment was procured by fraud. The evidence adduced was, at best, only conflicting for resolution by the trier of the facts. Mr. Godsy’s evidence as to property values and income could have been presented at the trial of the divorce case had he appeared. The same is true as to his pleaded charges of marital misconduct. The disparate property values and amounts of income as testified to by the witnesses is not proof of fraud and is not the kind of testimony that would justify vitiating the judgment, Hupp v. Murphy Finance Co., 502 S.W.2d 345 (Mo. 1973). That testimony is extrinsic or collateral to the matters adjudicated and goes to the propriety of the judgment, not to the manner in which the judgment was obtained. Jones v. Jones, supra; Reis v. LaPres-to, supra.

The reasons advanced for defendant and his counsel failing to appear at the scheduled trial setting likewise do not give rise to fraud in the procurement of the judgment. To reach that status the failure to appear must be as a direct result of the deceit and deception practiced by the prevailing party. Jones v. Jones, supra; J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961); Bogdon v. Commerce Bank of Kansas City, 537 S.W.2d 650 (Mo. App.1976); Reis v. LaPresto, supra. This evidence could not support the conclusion that defense counsel was deceived by his opponent. Evidence to the contrary has already been enunciated. In addition, there are transcript statements of plaintiff’s counsel that he would have acceded to a request for a continuance by any other counsel, leading to the inescapable conclusion that both counsel were acting in the role of professional antagonists enhanced by personal animosity, and were not acting in concert. Prior to defense counsel’s departure, his opponent verbally and in writing expressed his intention to seek an adjudication of the divorce action on the scheduled date. Defense counsel could not have been misled in any way so as to justify the setting aside of the judgment on the grounds of fraudulent procurement. Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596 (Mo.App.1970); Falcon Enterprises, Inc. v. Precise Forms, Inc., 509 S.W.2d 170 (Mo.App.1974). This same evidence is inapposite to proof that defendant was “free from fault, neglect, or inattention to his case” which is a foundation requirement for setting aside the judgment. Jones v. Jones, supra.

Both pleadings also attacked the judgment on the ground that Mr. Godsy was not given notice of the entry of judgment in accordance with Rule 74.78. That rule provides that the “judgment shall be set aside for good cause shown upon written motion filed within six months from the entry of the order of judgment” should the clerk of the court fail to give notice of the entry of judgment to defendants who are not in default for failure to appear. Mr. Godsy cannot be granted relief by that rule as he failed to file a motion to set aside the judgment within six months. Further, no prejudice can be demonstrated by lack of such notice as Mr. Godsy had actual knowledge of the entry of judgment as he timely filed a Motion for New Trial. Had he chosen to do so, he could have filed his Motion at the same time. (It being unnecessary to do so, we specifically do not decide if Mr. Godsy was entitled to the notice required by that rule.)

As has been demonstrated, the trial court erred in sustaining the Motion and the Petition. The judgments appealed from in KCD-28689 and KCD-28805 are reversed and remanded with directions to dismiss with prejudice the Motion filed on August 5, 1975, in Circuit Court Case No. 749,413 and to reinstate the judgment of February 15, 1973, and also to dismiss with prejudice the Petition filed in Circuit Court Case No. DR75-4195. That portion of the judgment for attorney fees in the amount of $4,320.00, plus 6% interest from February 15, 1973, and $5,932.00, plus 6% interest from February 15, 1973, awarded to Mrs. Godsy in the judgment of April 5, 1976 (KCD-28804), being duplicative of the judgment of February 15, 1973, is reversed. That portion of the judgment of April 5, 1976, appointing a Receiver to take charge of the real estate and property owned by the parties is reversed as being moot, the Receiver not having qualified or acted, and also as not being supported by the evidence, Murphy v. Carrón, supra.

The attorney fee award in favor of Mrs. Godsy dated April 5, 1975, in the amount of $4,000.00 for services performed by her present counsel likewise is not supported by the evidence, Murphy v. Carrón, supra. This being a proceeding in equity, we review the case upon both the law and the evidence and reach our own independent conclusions as to the proper judgment to be entered, Murray v. Murray, 538 S.W.2d 587 (Mo.App.1976); In Re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). That judgment is reversed and remanded with directions to enter judgment in favor of Mrs. Godsy in the amount of $2,855.00 as of April 5, 1976.

We have studied the briefs and the transcript and are cognizant of and have considered each of the remaining points asserted by the parties. An explication of those points would not alter the disposition we have reached, nor be of precedential value. Rule 84.16(b).

Accordingly, the judgments appealed from are reversed and the cause remanded for the entry of judgments as directed.

All concur.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Charles BLAND, Appellant.
    No. KCD 29118.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1,. 1978.
    Application to Transfer Denied June 15,1978.
    Kevin R. Locke, Lee M. Nation, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Charles Bland was convicted of possession with intent to utter a forged check. Section 561.011, RSMo 1969. The jury assessed punishment at two years imprisonment.

On this appeal Bland challenges Instruction No. 6 — the verdict director.

Since Bland does not challenge the sufficiency of the evidence, a brief statement will suffice. A quantity of printed checks were stolen from Jim Brennen Motors. The day following such theft, Bland and another man entered a drive-in facility of the Jackson County State Bank and attempted to cash a check made out to Charles Bland on the account of Jim Brennen Motors. The check was in the amount of $231.73 and bore the signature of Jim Brennen. The bank teller became suspicious because she had been made aware of the theft of the Brennen checks. When she checked the signature card she found the authorized signature was J. E. Brennen rather than Jim Brennen. She also discovered Brennen Motors did not use a check protector whereas the check presented bore a check protector imprint. While Bland was kept waiting the police were called and on their arrival he was placed under arrest.

The court gave Instruction No. 6 which is MAI-CR 10.14(a) with the permissible modification of MAI-CR 2.12 to provide for a finding that Bland acted in concert with others. Instruction No. 6, in its essential part as relevant to the discussion to follow, read:

“If you find and believe from the evidence beyond a reasonable doubt:

First, that on April 2, 1976, in the County of Jackson State of Missouri, the defendant and another possessed with intent to offer as true a certain writing purporting to have legal efficacy, and
Second, that the document was of a kind commonly relied upon in business or commercial transactions, and
Third, that it had been so made that it purported to have been made by another, and
Fourth, that the defendant knew that it had been so made, and
Fifth, that the defendant acted either alone or knowingly and with common purpose together with another in the conduct referred to in the above paragraphs,

then you will find the defendant guilty of forgery.”

Bland’s single point alleges Instruction No. 6 was defective and an erroneous statement of the law. Bland makes two basic arguments under this point. The first alleges the Instruction is fatally deficient because it omits any finding of the presence of an intent to defraud. The second alleges the Instruction does not set forth the elements of a crime any more than did the information in State v. Osborn, 526 S.W.2d 37 (Mo.App.1975).

The arguments will be considered in reverse order. In Osborn the information was not couched in the language of the statute.

Comparing the language of Instruction No. 6, MAI-CR 10.14(a) with the language of the statute, it is apparent the instruction follows the language employed by the legislature. It is, of course, well settled “that a verdict directing instruction, which is not erroneous for some other reason, meets the minimum requirements when in words and effect it follows the language of the statute . . . State v. Jones, 365 S.W.2d 508, 515[9] (Mo.1963). The information held erroneous in Osborn simply stated the writing was commonly relied upon in business and commercial transactions, “and purporting to have been made by another.” In this case the Instruction used the language “had been so made that it purported to have been made by another.” The Instruction follows the language of the statute and on that score is sufficient.

Bland’s other attack on this Instruction charges the fatal omission to require a finding that the writing was possessed with the intent to defraud. Section 561.011(1) requires the possession of the instrument to be with intent to defraud. Instruction No. 6 (MAI-CR 10.14(a) required the jury to find Bland and another possessed with intent to offer as true a certain writing purporting to have legal efficacy, that the document was commonly relied upon in business and commercial transactions and such document had been so made that it purported to have been made by another and Bland knew it had been made in such a manner that it purported to have been made by another. The word “purport” is a word of common usage and understanding. Webster’s Third New International Dictionary (1971) gives a meaning of “purport’-’ as “convey, imply or profess outwardly (as meaning intention or true character): have the often specious appearance of being, intending, claiming (something implied or inferred).” The jury here was clearly informed of the necessity to find that Bland possessed a document which had the appearance of having ostensibly been made by Brennen when in fact it had not been and that Bland knew of the false appearance and intended to offer such false document as true. A finding of these facts would carry with it a finding of an intent to defraud. In State v. Johnson, 316 Mo. 86, 289 S.W. 847, 851[10] (1926) the court stated in response to an argument that an instruction omitted the element of intent:

When “the act itself is criminal, and necessarily involves a knowledge of its illegality, no averment of knowledge or bad intent is necessary other than is involved in a statement of the facts of the offense.” Kelley’s Criminal Law, § 199.

The act of passing a document which is not what it appears to be with the knowledge of the false character of the document is prohibited by § 561.011. The element of intent is fully covered in the Instruction because a finding of intent necessarily results when the jury finds the facts it is required to find.

Furthermore, Instruction No. 7 told the jury that if Bland did not know the check was purported to have been made by another, then the jury should find him not guilty. This submitted in clear form the necessity for Bland to know of the false nature of the check. This, coupled with the required finding that he intended to pass it as true, submitted fully the requisite intent to defraud. State v. Brunjes, 187 S.W.2d 473, 475[9] (Mo.App.1945).

The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Daniel LANKFORD, Appellant.
    No. KCD 29122.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      William F. Bauer, Asst. Public Defender, St. Joseph, for appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Daniel Lankford was convicted on two counts of assault with malice aforethought in an attempt to commit the offense of robbery in the first degree. Section 559.-180, RSMo 1969. The jury assessed punishment at ten years confinement on each count with the sentences to run concurrently. A companion case is State v. Tolliver, 562 S.W.2d 714 (Mo.App., decided January 26, 1978).

On this appeal Lankford contends the court erred in (1) refusing to allow counsel to refer to a State witness’s juvenile record; (2) failing to accept his plea of guilty to a lesser charge; and (3) failure to allow counsel to argue an unfavorable inference on the failure of the State to produce police officers who took a statement from Lank-ford. Affirmed.

No question is raised concerning the sufficiency of the evidence. The jury could reasonably have found that Lankford procured Terry Tolliver and Kenneth Thornton to rob the owners of Nick’s Market in St. Joseph. Thornton was a juvenile.

Lankford drove Tolliver and Thornton past Nick’s Market and pointed out it was a place with a lot of money and easy to rob because the owners were old. Lankford gave the two boys gloves, women’s stockings and overalls to use in the robbery. Tolliver obtained a loaded pistol from Lank-ford’s house.

Lankford drove the two boys to an alley near the market and let them out after telling them he would meet them there after the robbery. The boys went to the market but discovered it was closed. The boys then decided to wait for the owners of the market to emerge! When they did, the boys accosted them as they were getting into their car. In the scuffle both the owner and his wife were shot. The boys did not obtain any money. The boys found Lank-ford in a nearby bar and told him of the unsuccessful attempt to rob the market owners.

Lankford’s counsel advised the court pri- or to his opening statement that he wanted to refer to the fact Thornton was at the time on probation from juvenile court and stood charged with the same crime as Lank-ford in the juvenile court as a result of the robbery attempt. Lankford argues it was important and necessary for him to advise the jury in his opening statement as to the juvenile record of Thornton.

After the court denied the request to refer to this record in the opening statement, evidence of Thornton’s juvenile record was brought out on both direct and cross-examination. Lankford’s counsel also made reference to his record and its effect on Thornton’s credibility as a witness in his closing argument. The principles relating to opening statements are fully explained in State v. Fleming, 523 S.W.2d 849, 852[1] (Mo.App.1975). Among other purposes, Fleming states the opening statement is designed to provide the jury with an outline of the anticipated proof and its significance. The court stated the purpose “is not to test the sufficiency or the competency of the evidence.” Fleming, supra.

Here Lankford’s counsel did not seek to outline anticipated proof or its significance by his reference to Thornton’s juvenile record but merely sought to comment on the credibility of Thornton as a witness. This was not a proper function of the opening statement. Counsel obtained full benefit of the doubt cast on Thornton’s credibility by his juvenile record when this was brought out in evidence and referred to in the final argument. There was no error in refusing to allow reference to Thornton’s juvenile record in the opening statement.

Lankford complains of the refusal of the court to accept his plea of guilty to conspiracy to commit the offense of robbery. Section 556.120, RSMo 1975 Supp. After the jury had been selected but prior to the introduction of any evidence, the prosecuting attorney and Lankford’s counsel advised the court agreement had been reached by which Lankford would plead guilty to a conspiracy charge. The court advised Lankford he had the option of whether or not to accept the plea of guilty and conducted an examination of Lankford to form the basis of a ruling.

When the court inquired if Lankford were involved in aiding and assisting Thornton and Tolliver in the attempted armed robbery, Lankford stated he knew nothing about any robbery. He denied any knowledge of the intent of the two boys to commit any crime when he let them out of the car.

In the face of Lankford’s denial of a robbery attempt, the court refused to accept the plea of guilty and the trial proceeded. Lankford now contends he was deprived of due process of law by the failure to accept his guilty plea. It is well settled there is no constitutional right to have a guilty plea accepted. Steward v. State, 499 S.W.2d 830, 832[1-3] (Mo.App.1973); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In addition, this court has recently reiterated this rule in State v. Meaney, 563 S.W.2d 117 (1978).

In the face of Lankford’s denial of any knowledge of any crime about to be committed, the court was fully justified in refusing the plea of guilty. Rule 25.04.

Lankford finally contends the court erred in refusing to allow counsel in his final argument to comment on the failure of the State to produce police officers to testify concerning a statement made by Lankford. Counsel sought to show an unfavorable inference against the State by the failure to produce witnesses which were more available to it.

During the cross-examination of Lank-ford, the prosecutor inquired if Lankford had made a statement to the police. Lank-ford replied he had. The prosecutor then inquired if Lankford had made certain incriminating statements and Lankford denied these statements had been made. No rebuttal evidence was offered to show any incriminating statements had been made by Lankford and the subject rested with the jury with only Lankford’s denial.

Counsel sought to argue to the jury that if Lankford had made any incriminating statements the State would have produced the police officers who took the statement and since such police officers were not produced and since they were more available to the State the jury should draw the inference that no incriminating statement had been made. The above argument overlooks the obvious fact that no evidence of an incriminating statement was before the jury. The jury had only the denial of Lankford that the incriminating statements had been made.

The same argument was made in State v. Holmes, 389 S.W.2d 30, 34[4] (Mo.1965) concerning fingerprints. There a defendant sought to draw an unfavorable inference in final argument from the fact the State failed to take fingerprints from the articles stolen and failed to introduce such fingerprints in- evidence. The court held the State was not required to take fingerprints nor to produce such fingerprints in evidence. The court further held the State was not required to account for the absence of such fingerprints. The court concluded the argument was intended to divert the attention of the jury from the real issues.

The reasoning in Holmes applies in this case. The State was not required to take a statement from Lankford nor was it required to produce any statement in evidence. It follows, of course, the State was likewise not required to account for the absence in evidence of any statement. As in Holmes this argument could only have been intended to divert the jury’s attention from the main issues. The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    David W. WARREN, D.O., Plaintiff-Respondent. v. DIRECTOR, MISSOURI DIVISION OF HEALTH, Defendant-Appellant.
    No. KCD 29164.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.
    Application to Transfer Denied June 15,1978.

      John D. Ashcroft, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson, City, for defendant-appellant.
    Bruce C. Houdek, Kansas City, for plaintiff-respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This is a proceeding for judicial review of the action of the defendant Director in denying plaintiff Doctor a license under the Missouri Controlled Substance law. The Director refused to grant the registration under the provisions of Section 195.040-2, RSMo Supp.1975, on the ground that plaintiff had been convicted of a federal narcotics violation within the previous five years. On review, the circuit court granted a motion for summary judgment in plaintiff’s favor on the basis that the record in the federal criminal proceeding did not show a “conviction.” The Director appeals. We affirm.

The facts are stipulated. In 1975, a two-count indictment was filed against plaintiff in the federal court charging distribution of contraband drugs. Plaintiff pleaded nolo contendere to Count II, upon which the federal court suspended imposition of sentence and placed plaintiff upon five year probation. The court dismissed Count I.

The sole issue on this appeal is whether the criminal proceedings in the federal court just described resulted in a “conviction” within the meaning of Section 195.-040-2. The Director insists that it did.

Meyer v. Missouri Real Estate Commission, 238 Mo.App. 476,183 S.W.2d 342 (1944) stands athwart the Director’s path to success. That case was a declaratory judgment action to test the right of the Missouri Real Estate Commission to revoke a real estate license because of an alleged criminal conviction. The licensee had pleaded nolo contendere in the federal court to embezzlement, but imposition of sentence had been suspended and the licensee had been placed on probation. This court held that under those facts, the licensee had not been “convicted”:

“The trial court held that the plea of nolo contendere, made by the plaintiff to the indictment in the Federal Court, was a conviction within the meaning of the Missouri Real Estate Commission Act, and that the defendant has the right, power and authority to revoke plaintiff’s license as a real estate broker and salesman under the provisions of that act. As before stated, plaintiff has appealed.
“ * * * Plaintiff insists that, as the Federal Court, pending the imposition of sentence upon him, upon his plea of nolo contendere, placed him on probation, he has not been convicted of the offense charged against him within the meaning of the Real Estate Commission Act, as no final judgment has been entered against him.
“We are of the opinion that the word ‘conviction’, as used in the Missouri Real Estate Commission Act, should be taken in its most comprehensive sense, that is, to include the judgment of the court upon a verdict or confession of guilt.”

The Director meets the Meyer decision with the forthright contention that Meyer was wrongly decided and should now be overruled. To support that argument, the Attorney General’s brief on behalf of the Director takes up each of the cases cited and relied upon in the Meyer decision and proceeds to show that many (although not all) of those precedents have since been modified, narrowed or otherwise departed from in the respective jurisdictions in which they were rendered. There is a good deal to be said for this argument, and the diligent research and earnestness of the Attorney General’s advocacy produces an inclination to accede to the request for a re-examination of this question; and, there would be no hesitancy to undertake that task if the Meyer decision constituted the sole Missouri decision on this subject.

However, Meyer does not stand alone. Subsequent to Meyer, the Missouri Supreme Court had for consideration in State v. Frey, 459 S.W.2d 359 (Mo.1970) whether a witness can be impeached by showing that he had pleaded guilty in a criminal case, although that plea was followed by suspension of imposition of sentence and a grant of probation. The court in Frey framed the issue as follows:

“The determinative question then becomes: When sentence is not imposed, may there be a ‘conviction’ which will satisfy the meaning of Sec. 491.050, supra? Or, to put the question differently, may the credibility of a witness be impeached, under Sec. 491.050, by a record which shows he entered a plea of guilty but that sentence was not imposed?”

The court then proceeded to point out a conflict in decisions throughout the country on this general subject and cited along with other authority, Meyer v. Missouri Real Estate Commission, supra. After that review, the Missouri Supreme Court concluded as follows:

“In view of the pronouncements of Townley, Neibling, Meyer, Rumfelt, and Blevins, supra, we believe the Pennsylvania and Massachusetts positions, supra, should be adopted in Missouri. We hold that it is impermissible in Missouri to impeach the credibility of a witness under the provisions of Sec. 491.050, supra, unless sentence is imposed or pronounced in the prior proceeding.”

The most recent Missouri decision touching this subject is State v. Crate, 493 S.W.2d 1 (Mo.App.1973), which involved applicability of the Second Offender Act where a prior criminal proceeding terminated with suspension of the imposition of sentence. The court in Crate could have disposed of that question by saying that the Second Offender Act did not apply because it required by its terms the imposition of a “sentence,” as had been held in State v. Gordon, 344 S.W.2d 69 (Mo.1961) and which Crate does cite. Nevertheless, the Crate opinion went on to say that the prior criminal proceeding had not resulted in a “conviction” and cited Frey in support.

It must also be noted that the existing Missouri law just summarized is far from unique among the various jurisdictions of this country. Indeed, this general subject has caused a sharp split, revealing a division in legal philosophy. The conflict in the cases on one branch of the problem was specifically noted by the opinion in State v. Frey, supra. The general divergence of judicial opinion is collated in the following comprehensive annotations: “Permissibility of Impeaching Credibility of Witness by Showing Verdict of Guilty Without Judgment of Sentence Thereon,” 14 A.L.R.3d 1272; “What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for canceling licenses or special privilege,” 113 A.L.R. 1179; “What constitutes former ‘conviction’ within statute enhancing penalty for second or subsequent offense,” 5 A.L.R.2d 1080; “What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office,” 71 A.L.R.2d 593; “What constitutes ‘conviction’ within constitutional or statutory provision disfranchising one convicted of crime,” 36 A.L.R.2d 1238. On a specific phase of the problem which is very close to that presented in the instant case, there is a conflict in the cases concerning the revoca-bility of a medical license under these circumstances. 70 C.J.S. Physicians and Surgeons § 17(5), p. 884, and 61 Am.Jur.2d Physicians, Surgeons, etc., Sec. 58, p. 181. Particularly to be noted, there are other jurisdictions which refuse to permit revocation of a medical license for prior conviction, where the claimed “conviction” involves a suspension of sentencing. Page v. State Board of Medical Examiners, 141 Fla. 294,193 So. 82 (1940); State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83 (1935).

If a re-examination of Missouri law on this general subject is to be undertaken, that can be done appropriately only by the Missouri Supreme Court, not by this court.

The Attorney General on behalf of the Director submits an alternative argument that regardless of what the Missouri law on this subject may be, nevertheless the federal law is different and the federal law should be applied. The Attorney General argues that under the federal cases a plea or jury finding of guilty and likewise a plea of nolo contendere constitutes a “conviction,” despite a subsequent suspension of sentencing. That seems to be a correct statement of the federal law. Davis v. Estelle, 502 F.2d 523 (5th Cir. 1974); United States v. Bynoe, 562 F.2d 126 (1st Cir. 1977); United States v. Locke, 542 F.2d 800 (9th Cir. 1976); United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326 (D.C. N.H.1971). There is also some authority to support the theory that since the criminal proceeding in question occurred in the federal court, federal law should control as to whether or not the result of that proceeding constituted a “conviction.” Pedorella v. Hoffman, 91 R.I. 487, 165 A.2d 721 (1960); Solomon v. Shepard Co., 61 R.I. 332, 200 A. 993 (1938).

However, closer reasoning dictates that Missouri • rather than federal law should control. The term “conviction” which is here under consideration has a variable meaning depending upon the context in which it is used. Meyer v. Missouri Real Estate Commission, supra; People v. Fabian, 192 N.Y. 443, 85 N.E. 672 (1908); 24 C.J.S. Criminal Law § 1556(2), p. 383. Thus the term will be used in its popular sense of meaning the verdict of guilty when reference's made to the successive steps in the criminal proceeding; but the term may be used in the more strict sense of requiring a final judgment, when the context of the situation involves some collateral adverse consequences such as the loss of privileges or the imposition of a disability.

The situation at hand does involve the question of collateral loss of a valuable privilege, and whether this consequence occurs depends upon the construction of a particular statute, namely Section 195.040-2, RSMo. Inasmuch as this case turns upon construction of a Missouri statute, Missouri law must be applied. Page v. State Board of Medical Examiners, supra; Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W.2d 724 (1971); United States v. Rosenstengel, 323 F.Supp. 499 (D.C.Mo.1971).

Missouri law is to be applied, and under the present decisional law of this state dealing with analogous statutes, the federal proceeding in question against plaintiff has not resulted in a “conviction.” The judgment of the trial court to that effect is affirmed.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David HERRON, Defendant-Appellant.
    No. KCD 29169.
    Missouri Court of Appeals, Kansas City District.
    April 3, 1978.
    Motion for Rehearing and/or Transfer Denied May 1, 1978.

      William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals a conviction by a jury and a court-imposed sentence on Count I for assault with intent to rob of sixty years and on Count II for stealing of five years. Both sentences were imposed by the court because of the charge and proof that the Second Offender Act, § 556.280 RSMo 1969, applied.

Defendant asserts error on the part of the trial court in denying two motions for a mistrial, one such motion being grounded on the trial judge’s misdescription of the charge while reading MAI-Cr 1.02 to the jury and the second when a witness volunteered information as to the disarray of the victim’s clothes which conceivably could have suggested a sexual assault, a separate crime not charged.

The judgment of conviction is affirmed.

The record demonstrates that the defendant pistol whipped the 86-year-old victim in her apartment and removed a television set from the victim’s home. The proof of the guilt of the defendant is clear and convincing. In evidence was a blood-stained gun which the defendant attempted to discard on apprehension. The defendant identified the weapon as his property. The defendant’s watch was found in the victim’s home, likewise identified by the defendant as to ownership. An eyewitness observed the presence of the defendant at the scene removing a television set. The victim had a fractured nose, fractured eye socket, contusions of the head, and hemorrhages. Testimony showed the victim died of unrelated pneumonia six days after the incident; but, had she lived, she would have lost the sight of one eye. There was a pretrial agreement that the State would, in opening statement say only that she was deceased from pneumonia and it was unrelated to and not attributable in any way to the assault. This was done, and the testimony of the doctor as to the autopsy findings was stipulated so that the jury did not know the autopsy had been performed.

During the reading of MAI-Cr 1.02, the trial court informed the jury the charge was “assault with intent to kill with malice aforethought.” No objection was made until after the court had conducted a general voir dire of the jury. Defense counsel then called the court’s attention to the inadvertence and requested a mistrial. The court denied the mistrial, but offered to correct the description of the charge. Defense counsel then attempted to pursue a tactic which would avoid a request or acceptance of any relief short of a mistrial. The colloquy between court and counsel is illuminating:

“THE COURT: That objection and request will be denied. The court will, if you want me to, I will reinform the jury, if you’re asking for that relief. Having told you that, I will deny your request for mistrial. I will be glad, if you want me to tell them it is assault with intent to rob.
MR. DOAK: I’m afraid any corrective measures the Court takes short of mistrial is going to prejudice this panel even worse. Once again, I am not going to suggest a method for the Court’s relief of anything short of what I have asked for. If the Court wishes to do that, that’s fine.
I just don’t see any way — (interrupted)
MR. STRAUSS: I wish the Court would instruct them that it’s assault with intent to rob, because I was going to say it in my opening statement.
THE COURT: I don’t do it unless Mr. Doak wants it done.
MR. DOAK: No, I’m not saying — I think it’s incumbent upon the Court to do this. I don’t think this relief the Court has suggested is going to properly cure the possible prejudice. If the Court wishes to do so, if the Court wishes to take that possible measure, I can’t be put in that position of choosing for the Court what course of action to take after this.
THE COURT: I am not asking you to choose for the Court; I have to make that determination. I am asking you whether you are making any further request for the Court to take any further action.
MR. DOAK: I request the Court take whatever action the Court deems fit.”

The trial court did not instruct the jury any further with respect to the matter; and, immediately after the voir dire, the prosecutor made his opening statement and informed the jury that the State intended to prove that the defendant assaulted the victim with intent to rob. No evidence was introduced to support any charge of assault with intent to kill, and the instructions reflect that the defendant was being tried for the offense of assault with malice with intent to rob. The defendant argues that the trial court’s inadvertent misdescription of the charge was an impermissible modification of MAI-Cr 1.02 and that the court failed to adequately correct the error so that the error was so prejudicial that a mistrial should have been granted.

The court’s action was not a modification of MAI-Cr 1.02 but was a factual error in inserting the parenthetical material required under MAI-Cr 1.02 as to the nature of the charge. The cases involving a change in the instructional language are inapposite to the circumstances of this case. That it was a factual error by the trial court cannot be denied, but such a factual error, in order to justify a reversal, must be shown to have been prejudicial to the defendant. The single instance shown in this record of a misdescription of the charge does not, in and of itself, constitute prejudice to the defendant. The defendant attempts to couple that with the death of the victim to suggest that the jury was prejudiced by reference to “attempt to kill.” But the record in the case demonstrates that the State scrupulously avoided any reference or evidence that the deceased died as a result of the assault upon her, and the jury must have known by the time the case was submitted that no intent to kill was involved in this case. If the defendant was concerned that the jury would' draw an improper inference from the inadvertence of the trial court, he should have accepted the trial court’s offer to instruct the jury that an inadvertent error had occurred, and that would have unquestionably removed any possible prejudice from the situation. The granting of a mistrial is a drastic remedy to be exercised only in those circumstances in which no action short of a mistrial would remove the prejudice claimed. State v. Charles, 542 S.W.2d 606 (Mo.App. 1976); State v. Sanders, 539 S.W.2d 458 (Mo.App.1976). The tactic indulged by the defense in this case, of attempting to put the trial court in the position of possibly emphasizing a very minor matter by reiterating the issue sometime after it had been raised, should not give rise to a claim of error.

The issue of the refusal of an offer of a cautionary instruction in the case of allegedly prejudicial evidence has been squarely met in a federal case, United States v. Splain, 545 F.2d 1131 (8th Cir. 1976). In that case, a government witness referred to other checks in connection with a forgery charge, and defense counsel moved for a mistrial. The court offered to instruct the jury to disregard the comment.

“Counsel for Splain rejected the instruction and Splain can not now complain that the evidence may have prejudiced the jury. A cautionary instruction here would have erased any possible prejudice. The trial judge can not be faulted for any trial mishaps that he offers to and could correct. Moreover, the evidence of guilt in this case was overwhelming; therefore. there is little likelihood that the jury was affected by the passing comment.” Splain, supra, at 1133.

The rationale of the ruling in Splain seems pertinent to the instant case, both on the issue of the refusal of the proffered cautionary instruction or the equivocal position of counsel with respect to it and on the basis of the extreme unlikelihood in this case that the judge’s misdescription could have constituted any prejudice to the defendant.

Defendant’s second claim of error arises from the following question and answer:

“Q. [By Prosecutor] Will you describe to us the condition of the person you saw lying there?
A. She was an elderly white lady. She was clad in what appeared to be a nightgown, and housecoat, or something of that nature. Her panties were torn and down around one ankle on— [interrupted]”

Immediately upon the interruption, defendant’s counsel approached the bench and asked for a mistrial which the court denied. He then asked the court to admonish the jury to disregard the last comment and to strike it from evidence, which the court promptly did. It is doubtful that the trial court was even required to take the corrective action which it did to remove from the jury’s consideration the disarray of the victim’s clothing. When a fact which indicates the commission of another crime is so inextricably woven into the pattern of facts necessary to prove the charge made and the excision of the fact is impossible, the defendant suffers the consequence of his own behavior and all of the evidence comes in. State v. Rule, 543 S.W.2d 325 (Mo.App. 1976); State v. Morris, 523 S.W.2d 329 (Mo. App.1975). Assuming without deciding that the case in this instance could have been presented without reference to the disarray of the victim’s clothing, the fact still remains that the trial court, in an excess of caution, admonished the jury to disregard the remark and denied the motion for a mistrial. A quotation from State v. Walker, 531 S.W.2d 55, 57 (Mo.App.1975), is appropriate:

“Situations of this sort frequently happen when a witness unexpectedly volunteers some inadmissible statement. When that occurs, the nature of the action called for rests largely within the discretion of the trial court. Granting a mistrial is a drastic remedy, and the trial judge has a duty to evaluate the whole situation to ascertain whether some other remedy short of that will cure the error.
The appellate court reviews that decision only to verify that there has been no abuse of discretion.”

The partial sentence concerning the clothing could not have been prejudicial in view of the evidence of the brutal attack on the victim, the blood and disorder at the scene, all of which was shown by testimony and by photographs.

Under all the circumstances, this record does not demonstrate an abuse of discretion by the trial court in refusing to grant a mistrial for the single isolated instance of the reference to the victim’s clothing.

Judgment of conviction affirmed.

All concur.