author: SPURLOCK, Justice.

text:
    H. D. SNOW HOUSEMOVING, INC., Appellant, v. Eldon D. MOYERS, Sheriff of Wise County, Texas, et al., Appellees.
    No. 18100.
    Court of Civil Appeals of Texas, Fort Worth.
    May 17, 1979.

      Law Offices of Charles Dickens, and Charles Dickens and Kenneth J. Mendel, Fort Worth, for appellant.
    Wm. A. Nobles, Decatur, for appellees.
   OPINION

SPURLOCK, Justice.

H. D. Snow Housemoving, Inc., a judgment creditor, appeals a take nothing judgment rendered in a suit to mandamus a sheriff to sign a deed to real property sold to it at a sheriff sale pursuant to foreclosure of its lien thereon. The suit was also to foreclose the lien on the property and for a declaration that the interests of subsequent grantees of the judgment debtor and the holder of first lien on the property are subordinate to the interest of Snow. The questions presented are whether the land in question was the homestead of the judgment debtor at all material times, and whether a conveyance of the property by deed from the debtors to a third person was invalid as an attempt to improperly mortgage the homestead. The trial court found the land was homestead at all material times and that the conveyance was valid.

We affirm.

In 1971 John Jackson and wife, Jacci, contracted to purchase 16.84 acres of real property in Wise County, Texas. They actually acquired title by a deed to about one acre out of the tract. In April 1972, Jackson signed a contract with H. D. Snow Housemoving, Inc., for Snow to move a barracks from a nearby air force base onto the property. Mrs. Jackson did not sign the contract. The contract price was about $5,800.00 and the contract provided that payment was secured by a lien on the property. There is no indication in the record the lien was filed in the deed records. Snow performed its obligation by moving the structure on the property. However, the Jacksons have never paid Snow any of the contract price.

The Jacksons contracted with Robert Kelly to remodel and improve the structure so that they could use it as their home. There is no indication in the record that this agreement gave Kelly a lien on the property. Kelly made the improvements but the Jacksons were unable to pay him. In 1973 Snow sued John Jackson in Tarrant County and took a default judgment against him for the agreed price of moving the structure. The judgment also provided for the foreclosure of Snow’s lien on the property. Mrs. Jackson was not a party to this action. Jackson has never paid the judgment. In May 1974 the Jacksons conveyed the one acre to Kelly. Kelly sold the property to Billy J. Stewart and wife, Freddie Ruth, in August 1974.

In October 1974 the district clerk of Tar-rant County issued an order of sale pursuant to the 1973 default judgment. In December 1974 Eldon Moyers, then Sheriff of Wise County, held a public sale. The property was sold to Harold Don Snow, president of Snow Housemoving, Inc. After Sheriff Moyers refused to sign a deed conveying the property to Harold Don Snow, H. D. Snow Housemoving, Inc., instituted this action against Sheriff Moyers, Billy Stewart and wife, Freddie, and the Azle State Bank, for a writ of mandamus to compel Sheriff Moyers to sign the deed, for a declaration that the interest of the Stew-arts and the bank is subordinate to the judgment lien and for foreclosure of the lien. By agreement of the parties through a trial amendment Carl “Rook” Ramsey, the present Sheriff of Wise County, was substituted as a party defendant.

H. D. Snow Housemoving, Inc., complains of the trial court’s judgment by three points of error. It claims the trial court erred in refusing to mandamus the sheriff to compel him to sign the deed, in refusing to hold that the Stewarts’ interest is subordinate to the judgment lien, and in failing to foreclose the judgment lien against the property. The basis for each of these complaints is appellant’s contention that there was un-controverted evidence that the property was not, at all material times, the homestead of Mrs. Jackson. In its brief appellant states that the only real issue is the homestead rights of Mrs. Jackson.

It is appellant’s position that the purported sale of the property to Kelly on May 30, 1974 is void except as to constitute an abandonment of Mrs. Jackson’s homestead rights. Appellant claims that by conveying the property to Kelly the Jackson’s were attempting to place an unconstitutional mortgage thereon. Further, appellant reasons that because the sale to Kelly was invalid, Kelly had no title or interest in the property to convey to the Stewarts. Thus the Jacksons would still own the property. Since John Jackson abandoned his homestead rights by failing to assert a homestead defense in suffering the default judgment, and Mrs. Jackson abandoned her homestead rights in the transaction with Kelly, Snow claims mandamus is his absolute entitlement.

The appellees contend that Snow’s points of error present a no evidence question for review of the disputed findings. We agree. The nature of the points of error and argument together with Snow’s prayer that the judgment of the trial court be reversed and a writ of mandamus be issued leads us to conclude that if there is any evidence more than a scintilla which, with the inferences that may be properly drawn therefrom, supports the findings, they must be sustained.

The trial court found that the property was Mrs. Jackson’s homestead, that the transaction with Kelly resulted in a valid sale and that at the time of trial the Stew-arts owned the property. Appellant in its points of error and argument challenges these findings. In order to resolve this dispute we have thoroughly reviewed the record in this case.

We agree that Jackson abandoned his homestead rights when he suffered the default judgment. However, since Mrs. Jackson was not a party to that action, the default judgment did not affect her homestead rights. Appellant apparently agrees because it does not challenge the trial court’s finding that she abandoned her rights May 30, 1974 in the transaction with Kelly. Appellant asserts that its judgment lien attached to the property May 30, 1974 because the purported sale to Kelly was invalid.

The general rule of whether a transaction is a conveyance or a mortgage is stated in 28 Tex.Jur.2d Homesteads § 101, at 499-500 (1961), as follows:

“[Wjhether a transaction is a mortgage . is to be determined, not wholly by reference to the instruments the parties executed, but also by reference to such extrinsic matters as show what the parties intended to accomplish. The issue is a question of fact . . . .”

There is evidence in the record which could infer that the Jacksons did not intend to divest themselves of all interest in the property. The record is clear that they were experiencing financial difficulties and were forced to act. The record also indicates that they hoped to recover the property. However, we find that there is ample evidence to support the trial court’s finding that the transaction resulted in a valid sale. Both Jackson and his wife testified that the purpose of the sale was to pay Kelly for the work he and his men had done. Mrs. Jackson testified that she considered the property Kelly’s after the conveyance to him and no longer regarded it her homestead. There is also evidence that the Jacksons received several thousand dollars from Kelly after he sold the property to the Stew-arts. This evidence infers that Kelly took title to the property in satisfaction of the debt for his work on the structure and returned to the Jacksons the excess in the amount of proceeds from the sale. Further, Mrs. Jackson stated she believed the Stew-arts are the present owners of the property. We conclude that this along with other evidence in the record supports the finding of the trial court that the sale to Kelly was valid.

The only complaint made of the trial court’s finding that the Stewarts owned the property at the time of trial is appellant’s contention that Kelly did not acquire any interest because the conveyance from the Jacksons was invalid, therefore, Kelly had no interest to convey to the Stewarts. Since we have concluded that the conveyance to Kelly was valid, it follows that he effectively conveyed his interest to the Stewarts. The trial court properly found that the Stewarts were the owners at the time of trial.

Although we have not separately discussed appellant’s points of error, each has been severally considered and each is overruled.

The judgment of the trial court is affirmed.

MASSEY, C. J., concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte James Allen BARNES, Relator.
    No. 18196.
    Court of Civil Appeals of Texas, Fort Worth.
    May 17, 1979.

      Miteff, Carter, Finney & Williams, and Meto Miteff, Fort Worth, for relator.
    Donald L. Prager, Fort Worth, for Geraldine Mae Barnes.
   OPINION

SPURLOCK, Justice.

This is an original habeas corpus proceeding in which James Barnes seeks relief from incarceration pursuant to a commitment order issued after he was held in contempt of the 325th district court. We granted his motion for leave to file an application for a writ of habeas corpus and petition for relief. We granted a writ of habeas corpus returnable to this court on May 3, 1979 when a hearing was held on whether relief should be granted. The relator was released on bond pending the hearing. The issue is whether the relator’s commitment is proper where the contemptuous conduct occurred prior to the signing of the temporary injunction which was allegedly violated, and where the trial court found that the relator had actual notice of the injunction before engaging in the conduct.

The relator is discharged.

Barnes and his wife were obtaining a divorce in Tarrant County. After a temporary restraining order was issued on January 23,1979, a hearing was held on January 29, 1979, on a temporary injunction. The parties appeared at the hearing in person and by attorney. They agreed to some of the terms of the injunction which was granted on the date of the hearing. However, the temporary injunction was not reduced to writing and signed until March 19, 1979.

The injunction in pertinent part provides as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that each party hereto is ordered or restrained as the case may be from:
“3. Coming around, about or in the presence of each other, their place of residence, place of employment or where either may be and further restraining them from communicating with each other directly, via their friends, neighbors or acquaintances or by telephone, letter or other means of communication in any manner whatsoever.”

On March 11, 1979, eight days before the injunction was signed, Barnes and his wife happened to meet at a nightclub. There is no evidence in the record that this meeting was planned. However, it does appear that both parties consented to communicating with each other. They talked, drank liquor, and danced together at the nightclub. Later in preparing to leave the nightclub the parties discussed the transfer of possession of certain items of property contemplated by the temporary injunction. Mrs. Barnes accepted Barnes’s invitation to come to his residence to pick up some of the property.

While at Barnes’s residence the couple encountered a third person described to us as “Barnes’s girlfriend”. An altercation ensued resulting in Barnes striking Mrs. Barnes in the face and breaking her nose. Mrs. Barnes claims Barnes intentionally assaulted her by hitting her with his fist. Barnes’s version is that in the struggle he accidentally struck her with his elbow.

Mrs. Barnes filed a motion for contempt and after a show cause hearing the trial court held Barnes in contempt for “the willful violation of a temporary injunction in that James Allen Barnes communicated directly with petitioner by striking her in the nose. The court is also of the opinion that respondent had actual notice of being restrained from doing petitioner physical harm”. He was then committed to jail.

In claiming that he is illegally incarcerated, Barnes advances our recent decision in Ex Parte Rodriguez, 568 S.W.2d 894 (Tex.Civ.App.— Fort Worth 1978, no writ). There we held that the relator was improperly committed to jail because the contemptuous conduct occurred before the temporary restraining order was signed. While Rodriguez may apply, we note there is a ready basis for distinguishing this case from the facts of Rodriguez. Here the trial court was well aware that the conduct occurred before the injunction was signed. The court made the express finding that the relator had actual notice of the injunction prior to the time it was reduced to writing and signed, and prior to the conduct which was held contemptuous. As a general rule a judgment is effective at the time it is rendered. Usually rendition can occur when an oral pronouncement is made from the bench announcing the court’s decision. Sometimes if no oral pronouncement is made a judgment is rendered when it has been reduced to writing and signed. Thus the rendition of a judgment and the signing of the written memorandum thereof is not necessarily the same.

Applying these well settled rules to temporary injunctions, there is no authority for the proposition that contempt would be proper where the court orally granted an injunction and the conduct took place before the written memorandum was signed. Ex Parte Stone, 72 S.W. 1000 (Tex. Crim.App.1903). An oral order of temporary injunction is just as effective as the signing of a written order. However, it is the well settled rule regarding contempt that the order or injunction which is violated must be clear and sufficiently specific to give the actor notice that he is to do or refrain from doing a given act. Therefore, it follows that an oral order of an injunction to be enforceable by contempt must be just as clear and specific as a written order of an injunction.

Because even constructive contempt, such as in this case, is criminal in nature, it is our opinion that the party defending the order of commitment bears the burden of showing that the relator had actual notice of the injunction by oral pronouncement from the bench, and that the trial court’s oral rendition was clear and sufficiently specific. From the record in this case it does not appear that such a showing was made. There is no evidence of what the trial judge actually said or what terms, if any, he announced from the bench. While it is true that the parties had agreed to some of the terms of the injunction in this case, it is the injunction as ordered by the court and not the agreement of the parties which is enforceable by contempt.

In reaching this decision we note that the injunction restrained the parties from communicating with one another. Barnes was held in contempt for communicating with his wife by striking her in the nose. However, the trial court found that he had actual notice of being restrained from doing her physical harm. While we certainly do not condone physical violence under the facts here, from the evidence presented Barnes simply was not restrained by the 325th district court from doing physical violence. We assume without deciding that Mrs. Barnes has other viable remedies for her injury.

Even if the trial court’s oral rendition had been shown to be clear and sufficiently specific it is our opinion that Mrs. Barnes waived any remedy through contempt. We note that she consented to and actually engaged in communication with Barnes. Further she voluntarily accepted his offer to go to his residence. Therefore, she cannot now assert a claim of contempt merely because she did not appreciate the communication she received.

Because there was no showing that the oral rendition of the court’s order of the temporary injunction was clear and sufficiently specific and because the movant for contempt waived her right to assert it we find that the relator was improperly held in contempt and incarcerated. Therefore, the relator should not be liable for any of the attorney’s fees he was ordered to pay pursuant to the order of contempt and further he is not liable for any of the costs of the contempt proceeding in the trial court.

The relator is ordered discharged from custody.


author: MASSEY, Chief Justice.

text:
    John CREIGHTON, Individually and as next friend of Rafaela Creighton, a minor, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 18115.
    Court of Civil Appeals of Texas, Fort Worth.
    May 17, 1979.
    Rehearing Denied June 7, 1979.
    Jacobs, Taylor & Cocanower, and S. C. Cocanower, Fort Worth, for appellant.
    Street, Swift, Brockermeyer, Bell & Ward, and John G. Street, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Suit was brought against defendant Fidelity & Casualty Company of New York. Said defendant moved for summary judgment and it was granted. Therefrom plaintiff, both in his individual and representative capacity, brought an appeal.

We affirm.

Involved is Personal Injury Protection coverage under Texas policies of insurance. In insurance circles this form of insurance is commonly called “PIP”.

We have concluded that the purpose prescribed relative to the insurance termed PIP is to indemnify the person enti-tied to benefits, i. e., to preserve such person from or secure against damage or loss, which, but for the insurance coverage, would necessarily be suffered (save and except for possible recovery against a tort feasor or by other contractual entitlement as by some form of accident insurance). In other words the benefits provided for under PIP coverage are not the entitlement of the insured at any and all events, but are payable only for loss resulting from personal injury, caused by accident, in a motor vehicle accident. This is so even where there are multiple policies providing PIP coverage. Where there are multiple policies the protection or indemnity afforded would be an enlarged one, yet would there be required a PIP loss. This means that — insofar as PIP coverage is involved, no matter the number of policies — -the benefits payable because of PIP coverage, whether by multiple policies or not, could not in the aggregate exceed the actual loss sustained as it might be computed by reference to the policy.

In concluding this to be a correct holding we find persuasive language in the following cases: Westchester Fire Insurance Company v. Tucker, 512 S.W.2d 679, 686 (Tex.1974); American Motorists Insurance Company v. Briggs, 514 S.W.2d 233, 236 (Tex.1974). Also of value is 7 St. Mary’s L.J. 837 (1976), “ ‘Stacking’ Uninsured Motorist Protection, Medical Payments, and Personal Injury Protection Coverages in Texas.”

The occasion for the litigation in this case was the fact that the same company (Fidelity & Casualty Company of New York) had written a policy of insurance for John Creighton, and, also, a policy of insurance for his adult daughter Lynn. Both policies provided PIP coverage; each policy to the amount of $5,000.00. At all material times Lynn happened to reside in the same household as her father (who would be presumed in law to be the head of his household). In the same household John Creighton’s daughter Rafaela Creighton, age 13, also resided. About September 2,1976, Rafaela, at the time a pedestrian, was struck and injured by a “hit and run” motor vehicle.

Because of the results of Rafaela’s injuries from that motor vehicle collision suit was brought against the defendant company, Fidelity & Casualty Company of New York. In plaintiff’s petition it was alleged that “she has incurred necessary and reasonable expenses for medical, surgical, x-rays, ambulance, hospital and nursing services in the amount of $4,966.32 to date. Pursuant to the terms of the two aforementioned policies (those of John Creighton and his daughter Lynn) and the Insurance Code of the State of Texas, Art. 5.06(3) [5.06-3] V.A.C.S., Plaintiff is entitled to recover from the Defendant Fidelity and Casualty Company of New York $9,932.64. The Defendant Fidelity and Casualty Company of New York has paid to the Plaintiff the sum of $4,934.00 prior to institution of this suit.

(We disregard variance in figure amounts; if the defendant company owes anything over and above that which it has paid it is because there was entitlement to collect the full amount of the insurance afforded by both policies without regard to whether the loss, actually sustained was — to date of suit — merely $4,934.00, as appeared from the summary judgment evidence.)

There is a dispute between the parties upon whether 50% of that which was paid by the defendant was upon the provisions of its insurance contract with John Creighton and 50% was paid by the defendant upon the provisions of its insurance contract with Lynn Creighton — or—was 100% paid upon the provisions of the insurance contract with John Creighton. It seems that at one point the personnel in the defendant’s claims department deemed the company’s obligation to be under both policies; at another point it seems the attorney chosen by the company deemed it preferable or proper that all the benefits paid should be treated as paid under the John Creighton policy. We deem decision of the question posed to be immaterial under the facts of this case.

The maximum PIP benefits under each of the policies was $5,000.00. The claim de-dared upon by the suit was because of “PIP loss” less than $5,000.00. The company has paid the actual “PIP loss”. The contention is that because there was more than a single policy under which there was entitlement to receive benefits, there would be entitlement to receive the full amount of benefits prescribed by each policy to the maximum limitation amount. Plaintiff seeks to disregard the amount of “PIP loss” actually sustained, except to supply the “measure” by which the benefits afforded under each policy should be paid.

Our problem might be more difficult had the “PIP loss” amounted to more that $5,000.00 (the limit prescribed on each of the policies). What is written in this opinion is without necessary application to the problem which would be presented had that been the circumstance.

Presented is a situation of “PIP loss” (by policy provisions) of less than the limit of $5,000.00 prescribed by each of the policies, and where the actual calculable amount of such “PIP loss” has been fully paid. Nevertheless, says the plaintiff, two whole premiums were paid, one on each of the policies; and, because two whole premiums were paid, the benefits of each policy should be paid in full though a result would be a double recovery under the circumstances. (Apparently plaintiff does not anticipate much, if any, additional “PIP loss” to develop in the future.)

Our holding that, presently, plaintiff is entitled to no more than the amount already received, a necessary conclusion by the provisions of the contracts themselves, could only be rendered erroneous if a result would be to contradict provisions of Tex. Ins.Code Ann. art 5.06-3, “Personal Injury Protection Coverage” (Supp.1978).

By the statute, as applied to the circumstances obtaining, there is no contradiction. Of interest is the fact that the statute regulates PIP coverage up to the amount of $2,500.00, but does not regulate PIP coverage over and above $2,500.00. In the instant case each of the policies had a maximum coverage limitation of $5,000.00. Thus, even if there had been some sort of contradiction between the statute and the provisions of the policies, it would be material only as applied to the mandated $2,500.00 and would be immaterial and without application to excess above that $2,500.00.

There is no contradiction by tests to be applied to the first $2,500.00' in coverage; and, even if the benefits afforded by the insurance provided not be for indemnity merely (as we hold) the plaintiff has already collected insurance benefits “in full” as applied to both policies insofar as they might be considered to bear the $2,500.00 limitation required by the statute.

As is pointed out by plaintiff’s counsel, Tex.Ins.Code Ann. art. 5.06-3 (Supp.1978), does not provide for a limit of liability where there is more than one policy of PIP coverage applicable to the same occurrence or to the losses flowing therefrom. (Obviously no more than one policy lay in the legislative contemplation when the statute was enacted.) However, there is in the statute the express provision that as applied to the $2,500.00 mandated amount, the aggregate benefits payable under the policy coverage so required (in one policy) should not exceed the $2,500.00. By application of rules of statutory construction where there might be two or more policies, rather than one, PIP protection would be applicable and benefits payable under each and all of them so long as the amount of benefits paid did not exceed the actual “PIP loss” sustained.

Under the circumstances obtaining plaintiff has received from the defendant company all the benefits to which there is entitlement whether consideration be given (a) to the policies alone, or (b) to the policies— considered as providing the $2,500.00 as required and regulated by the statute, or (c) to both the policies and the statute considered together. Because this is so the summary judgment granted by the trial court was a correct judgment.

It is affirmed.


author: SIMEONE, Judge.

text:
    STATE ex rel. John M. ALLEN, Relator, v. Honorable Charles V. BARKER, Judge, 30th Judicial Circuit, Respondent.
    No. 60631.
    Supreme Court of Missouri, En Banc.
    March 13, 1979.

      Richard D. Bender, Honecker & Bender, Springfield, for relator.
    David L. Smith, Douglas W. Greene, Greene, Cassity, Carnahan, Freeman & Greene, Kenneth H. Reid, Turner, Reid & Duncan, Ted Von Wilier, Jr., Woolsey, Fisher, Whiteaker & Stenger, Springfield, for respondent.
   SIMEONE, Judge.

This is an original proceeding in prohibition wherein relator, John M. Allen seeks to prohibit the respondent, Judge Charles V. Barker, from dismissing certain counts of a petition filed against several defendants for damages for alleged defamatory statements.

On March 16, 1977, relator, John M. Allen, a resident of Dallas County filed a petition for damages in that county against several defendants. The petition was in four counts. Count I alleged that Salina Broadcasting Company, whose principal place of business was in Greene County, operated radio station KWTO and that on March 17, 1975, the station broadcast that:

“According to a report by State Sanitation, R.R. Willard, ... a Dallas County farmer is starving his cattle to death; according to Willard, an inspection of a man’s farm located about two miles north of Long Lane, in Dallas County, with about 300 head of cattle revealed that this farmer was starving his cattle to death; he said that "there was no evidence that the cattle are being fed, that there is no feed troughs, no salt or mineral out, that all grass is gone . that there were 25 head already dead;

The petition alleged that the broadcast was false and accused plaintiff of a criminal offense. The petition prayed for $20,000 actual and $50,000 punitive damages.

Count II sought damages against R-l School District No. 1 of Dallas County which operated KBFL radio station and its manager and announcer, Wayne Lemons, a resident of Dallas County. Count II alleged that the defendant is a “school district in Dallas County” “operating the KBFL radio station in Buffalo, Missouri.” It too alleged that “plaintiff” was starving cattle on his farm and that such defamatory statement was made by Lemons over the radio station which “was heard by plaintiff’s friends, neighbors and others in Dallas County and other counties.” This count sought damages against the School District and Lemons in the amounts of $20,000 actual and $50,000 punitive.

Count III alleged that on March 17, 1975, defendant Independent Broadcasting Company, whose principal place of business is in Greene County, operates KOLR-TV in Springfield. This count alleged that the station broadcast similar reports that plaintiff was starving his cattle, and that the broadcast was heard by friends, neighbors and others in Greene County and surrounding counties and by the sheriff and prosecutor of Dallas County. Plaintiff sought damages against this defendant in the amount of $50,000 actual and $100,000 punitive.

Count IV was directed against R.R. Willard, the publisher of the report. This count alleged that Willard, a resident of Greene County, published a letter to the effect that Mr. Allen was starving his cattle to death — that an inspection revealed that 25 head of cattle were already dead and that there was no evidence that the cattle were being fed. The count also alleged that Willard caused a letter to be published on March 23, 1975, in a Springfield newspaper that many cattle were dying. The petition alleged these letters and publications were false and were read in the area of Greene and other counties. Actual and punitive damages were sought.

Subsequent to the filing of the petition, Salina Broadcasting Company filed its motion to dismiss contending that (1) since Count I is a separate and distinct claim against it, and since the petition alleges claims against the other defendants “which are based on separate and distinct acts by each of them” Salina is not properly joined with the other defendants, (2) since the petition alleges that Salina is a corporation with its principal place of business in Greene County, and since Salina has no office in Dallas County, venue is improper, and (3) the action is barred by the statute of limitations.

The defendant School District which operated KBFL radio also filed a motion to dismiss Count II. The School District alleged that (1) the petition failed to state a claim; (2) the action was barred by the statute of limitations; (3) the petition was in tort and that since the District is a political subdivision of the state it is immune from liability by reason of the doctrine of sovereign immunity.

Defendant Wayne Lemons filed a motion to dismiss for failure to state a claim and because the action was barred by the statute of limitations.

Independent Broadcasting Company first filed a motion to dismiss for failure to state a claim and then on April 19, 1977 filed a supplementary motion to dismiss for improper venue. Independent contended any claim against it (a corporation) accrued in Greene County and that under § 508.040, venue in Dallas County was improper.

R.R. Willard filed no motion or answer.

Relator filed suggestions in opposition to the motions to dismiss contending (1) that the petition states a claim, (2) venue is proper because as there are several defendants “residing” in different counties, suit may be brought in any such county under § 508.01(^ (3) joinder of the several defendants was proper under Rule 52.05 which provides that “. . . all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action”; and (4) the doctrine of sovereign immunity was inapplicable because in operating a radio station the School District is performing a proprietary function rather than a governmental one.

After receiving the motions, suggestions and briefs, the respondent, on January 10, 1978, wrote to all counsel for the various parties. Respondent informed all counsel that he had read the file, briefs and cases and concluded that the pending motions should be ruled as follows:

“1. Motion to dismiss sustained as to School District No. 1 . . . on the ground that defendant had governmental immunity.
“2. That the venue is improper as to Salina Broadcasting Inc. and Independent Broadcasting Co.
Salina Broadcasting, Inc., as its first pleading filed a motion to dismiss based on improper venue among other grounds. This motion should be sustained.
Independent Broadcasting, Inc., as its first pleading filed a motion to dismiss on the ground that the petition failed to state a claim against defendant, and without attacking the venue. This may well have constituted a general entry of appearance and waived the venue. Subsequently, this defendant filed an amended motion to dismiss attacking the venue. I am not sure this would have the effect of withdrawing the general appearance. I would like to see what authority each of you have on this question. |,
“3. The motion to dismiss as to Wayne Lemons should be overruled since the venue is proper and I believe the petition to be sufficient, however, it could perhaps be made better by amendment.
“4. R.R. Willard apparently did not file any motions or pleadings, however, the petition alleges he is a resident of Greene County, Mo., and he was served in Greene County.
The petition does not allege sufficient facts to show that the alleged libel occurred in Dallas County, Mo., and perhaps the venue is improper as to him. If requested plaintiff will be granted leave to amend the petition to set out facts showing the venue to be in Dallas County, if that be the case.
“It is my view that the alleged libel arose out of separate transactions or occurrences, [sic] and that is the reason I feel venue is improper as to part of the defendants.”

On February 27, 1978 relator-Allen filed his petition for a writ of prohibition in this court after being denied relief in the court of appeals.

The petition recited the above facts and alleged that respondent indicated his intention to sustain the separate motions of the School District and Salina Broadcasting, Inc. The petition further alleged that “Respondent also threatens to sustain the supplementary motion to dismiss filed by Defendant Independent Broadcasting Company for the same reason as specified in the motion of Salina Broadcasting, Inc. and . threatens to dismiss the action as to Defendant R.R. Willard on its own motion, ... on the ground of improper venue.”

Relator prayed that respondent be prohibited from dismissing the action as to any defendant or defendants during the penden-cy of this proceeding.

On March 13, 1978, we issued our preliminary rule in prohibition. Return was filed by respondent and the cause briefed and argued.

In his brief filed here, relator makes three points: (1) the respondent’s threatened action to sustain the School District’s motion to dismiss on the ground of governmental immunity is in excess of his jurisdiction because the alleged tortious act arose in the exercise of a proprietary rather than a governmental function, (2) the respondent’s threatened action to sustain the motions of Salina and Independent on the ground of improper venue is in excess of his jurisdiction because venue is proper in any county where any defendant resides and (3) the respondent’s threatened action to dismiss the petition as to Independent Broadcasting and R.R. Willard is in excess of his jurisdiction because these defendants have waived venue in failing to comply with Rule 55.27(f) and (g).

Respondent, on the other hand, contends that the respondent acted properly because (1) the School District, as a political subdivision of the State has governmental immunity and that the operation of a radio station is a governmental and not a proprietary function; (2) in acting to sustain Salina’s and Independent’s motions to dismiss, the respondent acted “properly” because the claims arose out of “separate and distinct” occurrences which were separate and distinct from the occurrences alleged in the other counts so that venue as to each of these defendants was improper and (3) Independent Broadcasting Company did not waive venue but properly preserved the issue in its motion to dismiss.

The School District essentially relies on Krueger v. Board of Education of St. Louis, 310 Mo. 239, 274 S.W. 811 (1925) and contends that a voluntary and authorized assumption of an undertaking does not deprive the District of immunity under a governmental function and that the allegations that the District sold advertising to cover expenses and carried insurance, not being in the record should be disregarded as “unworthy of consideration.”

Salina and Independent urge that the alleged claims of plaintiff are based on “independent and separate” acts of different defendants. The damages for each alleged defamatory statement would have to be determined separately and assessed only against each defendant. There is no contention on the part of the plaintiff that the claims are “joint.” Salina and Independent contend that the venue of a libel action is in the county where the publication originates. They contend that in this proceeding there is improper joinder of defendants because joinder is applicable only when there is joint action and that § 508.010 governing venue governs when several defendants residing in different counties are lawfully joined.

Respondent further contends that Independent did not waive venue but rather properly preserved that issue in its original motion to dismiss. Respondent argues that Independent did not waive venue because where a defense appears on the face of a petition the defense may be interposed by a motion to dismiss without the necessity of a specific'motion. Since the petition stated that Independent had its principal place of business in Greene County, Independent argues that the cause of action accrued in Greene County. Therefore since the defense of improper venue appears on the face of the petition that defense may be interposed by a motion to dismiss without the necessity of “specificity.” Independent contends that Rule 55.27 is applicable only when the defense of improper venue does not appear on the face of the petition. Furthermore the supplementary motion which clearly raised the issue of improper venue “related back” to and “explained” the motion to dismiss.

The issues which we must determine are: (1) did the respondent exceed or abuse its jurisdiction in indicating his intention to sustain the School District’s motion to dismiss on the ground that the District was immune under the doctrine of governmental immunity; (2) did respondent exceed or abuse its jurisdiction by indicating that it would sustain Salina’s motion to dismiss on the ground of improper venue and improper joinder of parties; (3) did the respondent exceed or abuse its jurisdiction by indicating that venue is improper as to Independent Broadcasting even though Independent first filed a motion to dismiss for failure to state a claim and thus was unsure whether venue was waived even though a supplementary motion was filed; and (4) did respondent exceed its jurisdiction in indicating that as to R.R. Willard venue was “perhaps” improper and by indicating that unless the plaintiff, if request is made, is able to amend the petition to show facts that the alleged libel occurred in Dallas County, the action will be dismissed as to Willard.

Certain principles in this proceeding are clear. (1) Prohibition is the proper remedy where defendants are improperly joined, venue is improper and the trial court is without jurisdiction. State ex rel. Adrian Bank v. Luten, 488 S.W.2d at 637; (2) Lack of venue is a defect which authorizes the issuance of prohibition, State ex rel. Hails v. Lasky, 546 S.W.2d 512, 514 (Mo.App. 1977); (3) Where one or more corporations are sued with one or more individuals, venue is determined according to § 508.010(2) and not § 508.040, State v. Goodman, 364 Mo. 1202, 274 S.W.2d 293, 297 (1954); State v. James, 364 Mo. 589, 265 S.W.2d 298, 299 (1954); State ex rel. Hails v. Lasky, supra, 546 S.W.2d at 514; (4) Section 508.040 is applicable when a corporation is a sole defendant, State v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 65 (1956); (5) In an action for defamation, proper venue lies in the county where the “cause of action accrued”; the cause of action is deemed to have accrued in the county in which the defamation was first published, § 508.010(6); and (6) The issues of proper venue are contingent upon whether there is proper joinder of parties, State ex rel. Cozean v. Meyer, 449 S.W.2d 377, 379 (Mo.App.1969); see note, 41 Mo.L.Rev. 199, 212-213 (1976).

As to the action of respondent concerning Mr. Lemons, the action of the trial court was favorable to the relator hence no action can be taken in this proceeding against respondent as to Lemons.

As to the School Board, we cannot say that respondent exceeded or abused his jurisdiction in intending to sustain the School District’s motion to dismiss on the ground of governmental immunity under the facts as alleged in relator’s petition.

The distinctions between the governmental-proprietary functions of a governmental entity such as a school district and the immunity of such an entity based on such distinctions have been thoroughly discussed elsewhere and need not be repeated here. Prior to Jones, supra, 557 S.W.2d at 225, the doctrine of immunity based upon the dichotomy of function produced a “maze of inconsistency.” See Finch, J., dissenting in O’Dell v. School District of Independence, 521 S.W.2d 403, 417 (Mo. banc 1975). Charitably it has been said that the line between the functions is not clearly defined. The underlying test is whether the particular act performed is for the common good of all or whether the act can be performed adequately only by government and is governmental in character. See Prosser, Torts, at 1005 (3rd ed. 1964). One distinction that is made is whether the entity receives pecuniary benefits. See 57 Am.Jur.2d, Municipal, Etc., Tort Liability, Sec. 33, p. 46 and annot., 33 A.L.R.3d 703, 705 (1970).

Our decisions prior to Jones have struggled with the dichotomy and generally have upheld immunity. See Payne v. County of Jackson, 484 S.W.2d 483 (Mo.1972); Barchers v. School District of Kansas City, 501 S.W.2d 502 (Mo.App.1973)—loss of eye while attending class; O’Dell, supra—injury during wrestling practice; Krueger v. Board of Education, supra—injury in lunchroom cafeteria; Smith v. Consolidated School District No. 2, 408 S.W.2d 50 (Mo. banc 1966). The fact of voluntariness of the act is not determinative of immunity if it aids the efficiency, progress and convenience of the school.

“The true ground of distinction to be observed is not so much that the duty is mandatory rather than self-imposed pursuant to authority of a general law, but is that the duty assumed is public in character, and not for profit, but for the public good, and is directly related to and in aid of the general and beneficient purposes of the state . . . .” Krueger, supra, 274 S.W. at 814.

However, despite the difficulties with the governmental-proprietary distinction, the General Assembly by enactment of § 537.-600 (Laws, 1978, p. 201, H.B. 1650, § 1) reinstated “[s]uch sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, . ” the date of the opinion in Jones, supra. Hence, the distinction is still viable and must be applied.

We know of no decisions which deal with the operation of a radio station by a school district although many functions are categorized in annot. 33 A.L.R. 703. However, we cannot say that the respondent exceeded his jurisdiction in indicating his intent to sustain the District’s motion to dismiss under the facts as pleaded in the petition. Relator pleaded in Count II only that the “defendant is a school district in Dallas County, Missouri and operating the KBFL radio station in Buffalo, Missouri, and that defendant was so operating the radio station on March 17, 1975.” No other facts are alleged. Since the relator pleaded that that “defendant is a school district” the presumption is one of immunity. Immunity is the general rule and non-immunity the exception. To come within the exception it is incumbent upon relator to plead sufficient facts to show that the school district, presumptively immune, is engaged in a proprietary rather than governmental function.

In Burke v. City of St. Louis, 349 S.W.2d 930 (Mo.1961), plaintiff sought damages for injuries when he slipped on the floor of Soldiers’ Memorial. The trial court sustained a motion to dismiss. We held this to be error, reversed and remanded. The petition did not specifically allege facts that the city was not acting in a governmental capacity or was. acting in a proprietary capacity. Since liability is an exception to the general principle of immunity, in such a situation it is incumbent upon the plaintiff to aver facts sufficient to manifest his right to maintain an action.

Therefore, we conclude that the respondent did not exceed his jurisdiction in his anticipated ruling as to the School District. However, relator should be given an opportunity to amend the petition to aver sufficient facts to bring the cause within the exception to the general doctrine of immunity. Burke, supra.

We turn to the issue of whether respondent exceeded or abused the exercise of jurisdiction relating to his intention to sustain Salina’s motion to dismiss on the ground of improper venue.

The question of proper venue must be resolved by the statutes relating to venue and by the rules relating to the propriety of joinder of defendants, for the question of venue is contingent upon proper joinder of parties defendant. It is to be noted that relator’s petition did not allege any concert of action between the various defendants but alleged that each published the allegedly defamatory statement and that each should be responsible for independent damage. No joint claim was alleged.

Section 508.010, subsection 6 provides:

“In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; provided, however, that in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published.”

In this state, it is well settled that in an action for defamation, the cause of action accrued in the county in which the defamation was first published. Houston v. Pulitzer Pub. Co., 155 S.W. at 1068; Jones v. Pulitzer Pub. Co., 256 Mo. 57, 165 S.W. 304 (1914); Davidson v. Pulitzer Pub. Co., 178 S.W. 68 (Mo.1915); McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S.W. 193 (banc 1919); Litzinger v. Pulitzer Publishing Company, 356 S.W.2d at 84, cert. denied, 374 U.S. 831, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963); See annot. 37 A.L.R. 908, 148 A.L.R. 477, 50 Am.Jur.2d, Libel and Slander, Venue, § 387, p. 909. While these decisions deal with newspapers, a sufficient analogy exists as to radio and television stations.

Under the venue statute therefore the cause of action accrued in the county in which the alleged defamation was first published—as to Salina—in Greene County.

However, if Salina is properly joined in the action with the School District, and Lemons of Dallas County, then venue is proper as to Salina.

We turn then to the question of the propriety of permissively joining Salina whose principal place of business is in Greene County with the School District and Lemons of Dallas County. The venue statute governs the venue of actions wherein several defendants are lawfully joined under the provisions of Rule 52.05. State ex rel. Cozean v. Meyer, 449 S.W.2d at 379; disapproved on other grounds in State ex rel. Farmers Insurance Co., Inc. v. Murphy, 518 S.W.2d at 664.

Rule 52.05 provides that all persons may be joined in one action as defendants if there is asserted against them jointly, severally or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.

Permissive joinder of parties, unlike join-der of claims, is not unlimited. Two conditions must be satisfied under this Rule. There must be common questions of law or fact and the right to relief asserted must arise out of the same transaction or occurrence or the same series of transactions or occurrences. The history, source and purpose of the Rule is thoroughly considered by Finch, J., in State ex rel. Farmers Insurance Co., Inc. v. Murphy, supra. There this court sanctioned the joinder of parties where one claim arose out of an occurrence and another arose out of a transaction and specifically disapproved of the restrictive interpretation placed upon the Rule in State ex rel. Campbell v. James, supra. We held that:

“It seems clear from the foregoing articles and cases . . . that under the federal rules, from which our rules on joinder of claims and joinder of parties are taken, ‘occurrences’ are included in ‘transactions.’ It follows that the fact that both terms are used in Rule 52.05(a) is not a basis for concluding that persons may not be joined as defendants on the basis that claims against some of them are contract claims and others are tort claims.” Murphy, 518 S.W.2d at 661.

Our joinder rule, 52.05 was adopted from the federal rule governing joinder, Fed.R.Civ.P. 20. Under these rules the federal courts, and Missouri, have broadened the range of claims which may be permissibly joined. While the older decisions do not permit joinder of parties in actions for defamation, the facts of this case provide a good example of the reasons joinder should be permitted herein. Each defendant was alleged to have defamed plaintiff through publication. Radio and television broadcasts are not limited by county lines. Permitting joinder of Salina would be in keeping with the trend toward a broad construetion of the pleading rules. While joinder was originally limited by the common law and the Field Code, modern law has clearly extended permissive joinder to cases in which the injury is indivisible and to successive tortfeasors liable for at least a part of plaintiff’s injury. However, no definitive test to determine if defendants may be joined has been devised. One court has stated: “[T]he approach must be the general one of whether there are enough ultimate factual concurrences that it would be fair to the parties to require them to defend jointly against them . . . .” Eastern Fireproofing Co., Inc. v. United States Gypsum Co., 160 F.Supp. 580, 581 (D.Mass.1958). The Eighth Circuit has adopted the “logical relationship” test, drawn from cases interpreting Fed.R.Civ.P. 13(a)’s requirement that compulsory counterclaims be made where claims arise out of the same series of transactions or occurrences. Adopting this test to Fed.R.Civ.P. 20 permits “reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary.” Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). Accord, United States v. Mississippi, 380 U.S. 128, 142-43, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965); Wright & Miller, 7 Federal Practice & Procedure, § 1653 at 268—74 (1972); see Great Lakes Rubber Corp. v. Herbert Cooper Co., Inc., 286 F.2d 631 (3rd Cir. 1961) (explanation of logical relationship test as relating to Fed.R.Civ.P. 13(a)). Such is in keeping with the Supreme Court’s admonition in United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966): “Under the [federal] Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.”

In this case the claim against Salina is logically related to the other claims and should be joined. We approved adoption of the logical relationship test from Fed.R.Civ.P. 13(a) to compulsory counterclaims under Rule 55.32(a) in State ex rel. Farmers Ins. Co. v. Murphy, 518 S.W.2d 655, 659-62 (Mo. banc 1975) citing with approval Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, 474 (1949). It follows that in keeping with the broad policy favoring permissive joinder, we should follow the lead of the Eighth Circuit in applying that test to permissive joinder under rule 52.05(a). To do so would not be a significant break with tradition, but would rather be the next logical step in the development of the joinder rules. The case at bar is much like one in which a plaintiff is physically injured by first one defendant, then another, and then another, so that it is extremely difficult or impossible to sort out the injuries attributable to each and joinder is thus the most feasible and economical manner available for plaintiff to pursue his claims. See Hager v. McGlynn, supra. We thus have the “[c]ement or unity justifying joinder . . . [found in] . . . the fact that all acts or conduct are more or less consciously directed toward or connected with some common core, common purpose, or common event”, required by Levey v. Roosevelt Fed. Savings & Loan Ass’n of St. Louis, 504 S.W.2d 241, 247 (Mo.App.1973). As such, we see no reason why this case should be treated any differently than any other tort simply because it involves defamation. If the requisite “logical relationship” is present, it seems inconsistent to establish a different rule for defamation than for other actions. As a result, joinder should be permitted. Of course, it still lies within the discretion of the trial court after discovery and other pre-trial actions to have separate trials. As to Salina therefore we hold that it was properly joined as a defendant under Rule 52.05 and that venue was proper in Dallas County.

Under the discussions relating to Salina, Independent is also properly joined as a defendant under Rule 52.05. However, Independent did not raise the issue of improper joinder, but rather contends that there was no waiver of venue by first filing a motion to dismiss and then filing a supplementary motion for improper venue. It contends there was no waiver in such situation. Whether there was a waiver or not there was proper joinder. Since Independent raised the question of waiver, we will discuss that question.

Rule 55.27(a) provides that improper venue may be raised by motion. Rule 55.27(f) provides that a party who makes a motion may join with it other motions and if a party makes a motion but omits therefrom any objection then available to him which the Rule permits to be raised by motion he shall not thereafter make a motion based on the objection so omitted except for certain substantive defenses in 55.27(g)(2). Venue, of course, unlike jurisdiction can be waived. Jones v. Church, 252 S.W.2d 647, 648 (Mo. App.1952).

Respondent argues, however, that when a defense appears on the face of a petition that the defense may be interposed by a motion to dismiss without the necessity of a specific motion. Furthermore, respondent contends that the relator literally pleaded himself out of court by alleging that Independent’s residence was in Greene County.

Respondent’s argument is without merit for two reasons: First, respondent relies on Niemczyk v. Burleson, 538 S.W.2d at 737, and Household Finance Corporation v. Avery, 476 S.W.2d at 165, for both propositions that a defense apparent on the petition’s face may be interposed without specific motion and that a petitioner can plead himself out of court. Both cases are inap-posite. They both deal with cases in which a petition is clearly without substantive merit. This is certainly not the case we are presented with here.

The second, and perhaps the most important reason that respondent’s argument lacks merit is that an objection to venue may be waived. Jones v. Church, 252 S.W.2d at 648; Rule 55.27(g). At the time of filing the motion to dismiss, an objection as to venue could have been made by Independent, but was not. Hence, Rule 55.27(g) is applicable. The defense is waived.

Respondent argues, though that when Independent filed its motion to dismiss on the theory of improper venue that the motion was purely “supplemental.” Respondent claims that as such, the second motion “related back to and merely explained the motion before the court.” A “supplemental” motion to dismiss on venue grounds in no way “explains” the motion to dismiss for failure to state a claim. The two motions are separate and distinct, as specifically set out in Rule 55.27(a). The legal grounds for the motions are dissimilar and the use of one does not “explain” the other.

As noted in Kersey v. Harbin, 531 S.W.2d 76, 79 (Mo.App.1975), “[a] motion to dismiss for failure to state a claim upon which relief can be granted performs the same function as a general demurrer.” And in Jones v. Church, supra at 648, the court approvingly cited Lieffring v. Birt, 154 S.W.2d 597 (Mo.App.1941) which held that the filing of a demurrer is a general entry of appearance. Finally, the court in Jones notes at 648: “If the venue is improper, the defendant must bring such facts to light . before entering a general appearance; otherwise he has waived any possible objection.”

By not objecting to venue in the original motion to dismiss for failure to state a claim upon which relief could be granted, Independent waived venue. Rule 55.27(g).

Hence, for the reasons discussed above, as to Independent, the writ of prohibition must be made absolute.

As to R.R. Willard, the trial court has clearly indicated the intention to dismiss Willard unless plaintiff is able to allege that the libel occurred in Dallas County. However, as we have seen, joinder of defendants Salina and Independent are proper here, even though the slander or libel occurred originally in Greene County. That being so, joinder of Willard is also proper, even though the false publication alleged to have been caused by Willard occurred in Greene County, where the newspaper was published. As to Willard, therefore, the writ is also made absolute.

In summation, we hold that (1) our preliminary rule heretofore issued should, under the circumstances here and without amendment of the petition, be quashed as to School District No. 1 of Dallas County; (2) our preliminary rule as to Salina Broadcasting, Inc., should be made absolute; (3) our preliminary rule as to Independent should be made absolute; and (4) our preliminary rule as to R.R. Willard should be made absolute. No action is taken as to Mr. Wayne Lemons.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN, SEILER, JJ., and FINCH, Senior Judge, concur.

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

      . Section 563.680. RSMo 1969.

      . Section 516.140. This claim is without merit, since the petition was filed within two years of the publication.

      . This action was filed prior to Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977) and companion cases.

      .Relator relied on Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974).

      . Presumably on the ground of improper venue; Salina also alleged improper joinder of defendants; Independent did not.

      . The respondent indicated that Willard did not file any motions or pleadings. Respondent indicated that “perhaps” venue is improper since the petition did not allege sufficient facts to show that the alleged libel occurred in Dallas County but granted plaintiff leave to amend to set out facts to show venue in Dallas County.

      . In his third point respondent contends that he properly should enter an order sustaining the separate motion of Independent Broadcasting to dismiss the petition because the claim asserted against Independent “arises out of an occurrence which was separate and distinct from the [other] occurrences” so that Independent was not properly joined with the resident defendants (School District and Lemons) hence venue as to Independent was improper. However, Independent did not raise the issue of improper joinder before the respondent. Independent at first raised the issue that the petition failed to state a claim and then by supplementary motion raised the issue of improper venue on the ground that it had no office in Dallas County and that under section 508.040 venue was improper. No issue «vas raised as to improper joinder of parties under Rule 52.05.

      . Houston v. Pulitzer Publishing Co., 249 Mo. 332, 155 S.W. 1068 (1913); Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81 (Mo.1962).

      . Respondent relies on State v. James, 263 S.W.2d 402 (Mo. banc 1953). This case was disapproved in State ex rel. Farmers Insurance Co., Inc. v. Murphy, 518 S.W.2d 655 (Mo. banc 1975). Respondent also relies on State ex rel. Adrian Bank v. Luten, 488 S.W.2d 636 (Mo. banc 1973). This case was also disapproved in Murphy to the extent that it holds that contract and tort claims may not be joined in the same petition.

      . Respondent relies on Niemczyk v. Burleson, 538 S.W.2d 737 (Mo.App.1976) and Household Finance Corporation v. Avery, 476 S.W.2d 165 (Mo.App.1972).

      . Independent further contends that under §§ 509.330 and 509.340, no objection is waived unless it is not asserted within the time limited by those sections — time allowed for responsive pleadings. Independent contends that the motion to dismiss filed within that time extended the time for filing a responsive pleading hence the supplementary motion was timely and the objection on the ground of improper venue was not waived. Independent also contends that the motion to dismiss was never overruled pri- or to the filing of the supplemental motion.

      . “The generally accepted test is whether the act performed is for the common good of all, or whether it is for the special benefit or profit of the corporate entity.” Dallas v. City of St. Louis, 338 S.W.2d 39, 44 (Mo. 1960).


author: RENDLEN, Judge. FINCH, Senior Judge,

text:
    STATE of Missouri ex rel., NORMANDY ORTHOPEDICS, INC., and William F. Luebbert, D.O., and William E. Button, D.O., Relators, v. William H. CRANDALL, Jr., Judge of the Circuit Court, County of St. Louis, Division One, and His Successors as Judges of Said Division, Respondent.
    No. 60678.
    Supreme Court of Missouri, En Banc.
    May 17, 1979.
    Rehearing Denied June 19, 1979.

      Michael J. Pitzer, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Kea-ney & Brown, St. Louis, for relators-appel-lants.
    George R. Gerhard, William Kelleher, St.' Louis, for respondents.
   RENDLEN, Judge.

This is prohibition. The Missouri Court of Appeals, St. Louis (now Eastern) District, transferred the cause under Rule 83.02 after opinion, that we might reexamine the following question: Under what conditions does an injured party’s general release of an original tortfeasor operate to bar such party’s action against subsequent tort-feasors for alleged malpractice in the treatment of the original injuries?

The facts are not in dispute. A one-car accident occurred on October 29, 1970, in which Salvatore Taormina, riding as a guest in the automobile driven by James LaMan-tia, sustained a fractured left femur. Rela-tors, osteopathic physicians organized in a professional corporation, treated Taormina for his injuries.

On March 19, 1972, Taormina brought suit against LaMantia alleging that because of defendant’s negligence, “plaintiff sustained a fracture ... of the left femur; . . . [and] was obliged to submit to an open reduction of said fracture in an operative procedure whereby a nail was inserted down the shaft of the femur, . [and] he has been caused to become permanently lame, and that his ability to ambulate, walk, work and labor in the future have been seriously impaired.” The petition made no express reference to any negligence or otherwise actionable conduct by relators here. On August 22,1972, that suit was settled. Receiving $9,000, Taormina executed his written release and the action was dismissed with prejudice under a stipulation providing, “Come now the parties in the above entitled cause and hereby expressly stipulate and agree that the same has been fully and satisfactorily compromised and settled, and is hereby dismissed, with prejudice, at the cost of the defendant.” As hereinafter discussed, the terms of the petition and stipulation may be pertinent in further proceedings to the issue of intent.

On October 25, 1972, Taormina filed suit against relators alleging that during treatment they negligently inserted an intrame-dullary nail of improper length. Neither the original, nor an amended pleading filed in February, 1974, contained allegations of negligent treatment rendered between March 19, 1972, the date Taormina filed his original petition against LaMantia, and October 25,1972, the date of filing his petition alleging relators’ malpractice.

Relators, raising the release as a bar, filed their motions to dismiss and for summary judgment to which Taormina responded with affidavits accompanied by a letter stating that when executing the release he had intended to release only LaMantia and the insurer and that the $9,000 received was not in full satisfaction of his damages. Re-lators moved to strike these affidavits contending they sought to vary the terms of the release in violation of the parol evidence rule, and although that motion was not specifically ruled, the trial court’s order of September 13, denying relators’ motions to dismiss and for summary judgment effectively disposed of the motion to strike. Re-lators petitioned for prohibition and the Court of Appeals, though issuing its writ, stated, “We would affirm the judgment but, in view of the state of the law as reflected in Rogers v. Piper, this case is ordered transferred to the Supreme Court under Rule 83.02 for the purpose of reexamining the existing law.” We treat the cause as having been filed originally in and the preliminary writ issued by this court. State ex rel. J. D. S. v. Edwards, 574 S.W.2d 405 (Mo. banc 1978).

The general release executed by Taormi-na appears to be a typical printed form reading in part:

“I. First Party, for himself, or any one claiming through or under him, . agrees to release, and does hereby fully and forever release, acquit, and discharge Second Party, his heirs . . . and any and all other persons, firms, and/or corporations whomsoever from any and all liability now accrued or hereafter to accrue on account of any and all claims or causes of action which First Party . now has or may hereafter have against Second Party . . . and any and all other persons, firms and/or corporations whomsoever, in any way arising from or out of any and all injuries, losses and damages now known or that may hereafter develop . . . . ”

The release also contained the words, “This is a Release in Full.”

The contention that an instrument containing such language constitutes a bar to subsequent actions is usually said to rest on the principle that a plaintiff may recover only once for his injuries. Construing release provisions such as “This is a release in full,” and those purporting to comprehend “any and all actions,” and “any and all liability now accrued or hereafter to accrue” from one incident, Missouri cases have held such language evidences full satisfaction of plaintiff’s claims. See, e. g., Abbott v. City of Senath, 243 S.W. 641 (Mo.1922); Kestner v. Jakobe, 412 S.W.2d 205 (Mo.App.1967). The fact that the releases in those cases named only the tort-feasor who provided the agreed consideration did not alter the results. Id. In New Amsterdam Casualty Co. v. O’Brien, 330 S.W.2d 859 (Mo.1960), it was held that full satisfaction was shown though the release named only one tortfeasor and recited consideration of one dollar “ ‘and other good and valuable consideration.’ ” While none of the cited cases concerned independent successive tortfeasors, others involving such factual situations have reached similar results. In McQueen v. Humphrey, 421 S.W.2d 1 (Mo.1967), a settlement was entered between the minor plaintiff (by her next friend) and “[defendants and those who might be liable on their behalf,” purporting to cover “the cause of action or claim of the [pjlaintiff in full and forever.” Plaintiff had not sued the physicians at the time of settlement. The court there ruled that the release precluded a subsequent action for malpractice because there was “nothing in the record to indicate that plaintiff did not consider the settlement as complete satisfaction for her injures, . . ” 421 S.W.2d at 3. Similarly, in Rogers v. Piper, 543 S.W.2d 261 (Mo.App.1976), cited by the Court of Appeals’ opinion in the ease at bar, the release stated: “RELEASE AND FOREVER DISCHARGE Jack T. Lemmons, his agents and servants, and all other persons, firms and corporations of and from any and all liability, actions, claims, demands or suits whatsoever, which claimants now have or may hereafter have, on account of or arising out of personal injuries or damage to person or property, or impairment of or damage to any right, including loss of time, loss of services of society, and expenses, or other damage sustained by or accruing to the undersigned as the result of an accident, casualty or event which occurred on or about the 26th day of June, 1970, at or near 10300 South 71 Highway in Kansas City, Jackson County, Missouri” and “that the above mentioned sole consideration is accepted in full compromise, settlement, accord and satisfaction of all the aforesaid claims and demands, including all consequences thereof which may hereafter develop as well as those already developed or now apparent.” The release further stated, “that this agreement is in compromise and settlement of all claims of every kind.” Relying on McQueen, the court noted that nothing was shown to contradict plaintiff’s having received full and complete satisfaction in return for the release and that it barred the subsequent malpractice action.

These cases do not squarely rule that such language in a release indicates full satisfaction as a matter of law. The oft-cited decision of Abbott relied heavily on the fact that no extrinsic evidence of the parties’ intent or adequacy of consideration had been introduced at trial. 243 S.W. at 642. Similarly the court in O’Brien stated that in view of the third-party plaintiff’s election not to reveal at trial the “good and valuable consideration” he had received for the release, “he is now in no position to urge upon this court any factor for consideration in determining the effect of the release other than the instrument itself; and, commendably, he does not.” 330 S.W.2d at 865. Kestner noted that no extrinsic evidence existed indicating plaintiffs “claimed or demanded anything less than full satisfaction.” 412 S.W.2d at 208. McQueen commented that the plaintiff did not introduce evidence extrinsic to the release instrument seeking to vary its terms. 421 S.W.2d at 3; and the court in Rogers stated, 543 S.W.2d at 265:

Finally Rogers did not avail himself of the right to file affidavits or present any other matter to the court which would be proper under Rule 74.04 in order to show the existence of any fact issue. Absent a showing of any fact issues, the question here presented as to the effect of the release on whether or not Rogers had in fact received full satisfaction for all of his injuries, including the alleged medical malpractice, was a question of law . .

These cases may be distinguished from that at bar by the fact that plaintiff offered evidence as to partial satisfaction for his injuries and the intended scope of the release. Accordingly, none are overruled except to the extent they may be contrary to our present holding that a release purporting to comprehend any and all claims arising from a particular incident, including claims against unspecified strangers to the agreement, does not necessarily bar subsequent suits against an unspecified third party.

A leading case in this area is Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944), wherein plaintiff released the original tortfeasor as part of a post-trial settlement and then commenced his malpractice action against the attending physician, who raised in defense the settlement of the original action. The California court ruled that no presumption of full satisfaction would be indulged merely because the plaintiff settled with the original tortfeasor who was exposed to liability for the alleged malpractice as well as the original injuries. It further ruled that the question of full satisfaction was one of fact for the jury’s determination.

In Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556 (1962), the New York court also rejected a presumption of full satisfaction from the release of the original tortfeasor, stating, 236 N.Y. S.2d at 958, 187 N.E.2d at 559, “Irrebuttable presumptions have their place in the law but only where public policy demands that inquiry cease. Where the cause of action is single and the liability of one wrongdoer is identical with that of the other, there may be warrant for erecting such a barrier to suit after settlement. However, where, as here, neither of these elements is present, there is no basis or justification for preventing the plaintiff, by an artificial rule of law, from recovering the full compensation to which she would otherwise be entitled for her injuries.”

The Iowa Supreme Court in Smith v. Conn, 163 N.W.2d 407 (1968), considered a release purporting to release the named tortfeasor, “and all other persons, firms and corporations, from any and all liability whatsoever,” arising from an accident on the second parties’ property, and held that whether the release was given in consideration of full satisfaction of the injuries suffered from the alleged malpractice of a doctor was a question for the trier of fact. The court referenced ten other jurisdictions in which a similar rule had been adopted.

Kansas joined the trend in Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 510 P.2d 145 (1973). The release there at issue ostensibly discharged the named second party “and all other persons, firms or corporations liable or who might be claimed to be liable” for injuries consequent to an automobile accident. The court decided that its precedents had “erroneously treated the parties as joint tort-feasors whose separate independent acts were improperly considered concurrent in time and effect,” and overruled them in favor of the view that satisfaction is a question of fact. 510 P.2d at 149.

We need not further catalog the cases in which this result obtains; the reasoning is clear. As with any other contract, the lodestar of construction should be “that the intention of the parties shall govern,” Williams v. Riley, 243 S.W.2d 122 (Mo. App.1951), and as to releases in particular, “[A]ny question regarding the scope and extent of a release is to be determined according to what may fairly be said to have been within the contemplation of the parties at the time the release was given, which, in turn, is to be resolved in the light of all the surrounding facts and circumstances under which the parties acted.” Id. at 124. We do no more than put into practice this fundamental principle when we remove whatever legal presumption of full satisfaction may be found in our prior cases interpreting language similar to that in the release before us.

Turning now to the question of placing the burden of showing the parties’ intentions, we start from the principle that in Missouri, accord and satisfaction, release, prior full satisfaction and the like are affirmative defenses to be proved by defendant. Jenkins v. Simmons, 472 S.W.2d 417, 420 (Mo.1971). This burden of persuasion should not shift merely because defendant offered an instrument of release of the sort appearing here and that burden runs to the question of “full satisfaction” and other elements of the defense. In reaching this decision we are persuaded by the value of the Kansas Supreme Court’s holding in Fieser, 510 P.2d at 151: “When a general release discloses on its face that it has been given to named releasees who denied liability but made payment by way of compromise and settlement, then and in that event other alleged wrongdoers who were not parties to the release and made no payment toward satisfaction can fairly be called upon to show that either the release which they rely on was intended to discharge them or that the releasor has received full compensation.” (Emphasis ours.)

Finally, relators argue that parol evidence should not be permitted to establish the intent of the parties or to construe the language of the agreement because such evidence would vary or alter the terms of the instrument. We do not accept that Taormina’s affidavits will “alter and vary” the release. Relators are nowhere listed by name in its provisions and it is they who seek inclusion within its terms on the basis of their interpretation of its language. Plaintiff vigorously advances a different interpretation of that language and each side urges a resolution of the inherent ambiguities in a manner favorable to his position. We have hereinbefore determined to dispel the legal presumptions previously indulged in the law as to language of the sort at issue here, and parol evidence could well be of value in resolving the issue. The contention is denied.

The preliminary writ of prohibition is quashed.

MORGAN, C. J., DONNELLY, J., and SIMEONE, Special Judge, concur.

FINCH, Senior Judge, dissents in separate dissenting opinion filed.

BARDGETT and SEILER, JJ., dissent and concur in separate dissenting opinion of FINCH, Senior Judge.

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

FINCH, Senior Judge,

dissenting.

I respectfully dissent.

Taormina sued LaMantia on March 19, 1972, for damages alleged to have resulted from the negligence of LaMantia in an accident which occurred October 29, 1970. That case was settled on August 22, 1972, for $9,000.00 and the case was dismissed with prejudice pursuant to a stipulation which recited that the case had been “fully and satisfactorily compromised and settled.” Taormina also executed a release which stated, “This is a Release in Full.” It recited that it fully relieved LaMantia “from any and all liability now accrued or hereafter to accrue on account of any and all claims or causes of action which First Party (Taormina) * * * now has or may hereafter have against Second Party (LaMantia) * * * in any way arising from or out of any and all injuries, losses and damages now known or that may hereafter develop * * *

It is well established that one whose negligence causes injuries to another can be held liable for damages caused by malpractice in connection with the medical treatment of said injuries. State ex rel. Blond v. Stubbs, 485 S.W.2d 152, 154 [2, 3, 4] (Mo.App.1972). In the petition which Taormina filed against LaMantia he took cognizance of both the injuries he received and the treatment which he had received therefor, alleging, as the principal opinion recognizes, that because of LaMantia’s negligence “plaintiff sustained a fracture * * of the left femur; * * * [and] was obligated to submit to an open reduction of said fracture in an operative procedure whereby a nail was inserted down the shaft of the femur * * * [and] he has been caused to become permanently lame, and that his ability to ambulate, walk, work and labor in the future have been seriously impaired.” The condition for which he sought recovery was the result of the actual injuries plus the treatment therefor.

The stipulation for dismissal with prejudice of the foregoing petition plus the clear and unambiguous language of the release signed by Taormina released LaMantia for all liability growing out of the accident in which Taormina was injured, including liability of LaMantia for any aggravation of those injuries arising out of malpractice in the medical, surgical or hospital services rendered in the treatment thereof. That being true, it follows, I submit, that the release also discharges the relators herein. The clear and unambiguous language of the release so states. In addition to releasing LaMantia and his heirs it goes on to release “a 11 other persons, firms and/or corporations whomsoever in any way arising from or out of any and all injuries, losses and damages now known or that may hereafter develop from an auto accident at 1-70 and St. Charles Rock Road wherein first party (Taormina) was a passenger in an auto driven by second party (LaMantia) occurring on or about the 29th day of October, 1970.” (emphasis supplied). It contains no limiting or qualifying language of any kind. In Liberty v. J. A. Tobin Construction Company, Inc., 512 S.W.2d 886 (Mo.App.1974), the court, speaking of a settlement wherein a release is not intended to release others than those specifically named, said at 890:

“This result may be accomplished only by specific and clear limitation of the intended scope of the settlement where such consideration is described as partial, rights reserved as to remaining tort-feasors, or other appropriate language.
“Such reservation or limitation must be expressed clearly and unmistakably ‡ ‡ ⅛ JJ

Instead of so interpreting and applying the release and stipulation for dismissal in this case, the principal opinion holds “that a release purporting to comprehend any and all claims arising from a particular incident, including claims against unspecified strangers to the agreement, does not necessarily bar subsequent suits against an unspecified third party.” In other words, it holds that a release necessarily bars only those persons specifically named in the release. Under the principal opinion clear and unambiguous language in the release which purports to release other unnamed persons as a class will not necessarily be effective to bar subsequent claims against those unnamed persons who are members of the class specifically mentioned in the release. Instead, whether they are released will depend upon a subsequent factual determination as to whether the one executing the release intended thereby to release these unnamed persons and the burden will be on those seeking to be released to show that such was the intention of the one executing the release.

This ruling, as the principal opinion recognizes, is contrary to numerous earlier decisions in this state, some of which it states are no longer to be followed. It is contrary to the well established rule that plain and unambiguous language in a contract shall be given effect and that it is not subject to variance on the basis of parol evidence. The principal opinion states that it does not accept the idea that the affidavits by Taor-mina and his attorney will alter or vary the terms of the release. However, it does not demonstrate in any way that the language releasing “all other persons, firms and/or corporations whomsoever” as to all injuries, losses and damages is ambiguous. It does not suggest what those words might mean or to whom they might refer if they do not mean precisely what they say. It speaks of ambiguities but lists none. It is true, as the opinion states, that the lodestar of construetion is to determine the intention of the parties which shall then govern, but it is equally true that when language in a contract is clear and unambiguous the intention of the parties is to be determined from the language used and parol evidence is not admissable to vary that language.

The effect of the change made by the principal opinion is to substitute uncertainty as to the meaning of plain and unambiguous contractual language and to require additional litigation to establish the meaning thereof. Under the previously existing rule when a release or stipulation specifies that LaMantia and all others are released from any and all liability in any way arising from or out of injuries, losses and damages in connection with an automobile accident occurring on a specified date and no exceptions or exclusions or limitations are recited, and there is no claim of fraud or overreaching, the instrument means what it says and it operates as a general release. Under the rule announced in the principal opinion there is uncertainty as to the effect of an instrument which purports to be a full general release of certain named persons plus “all other persons, firms and/or corporations.” Whether the instrument effectively releases the latter group can be ascertained only after a second judicial hearing to determine the intention of the one executing the release. In that hearing those persons falling within the group of “all other persons, firms and/or corporations” have the burden of showing that the one giving the release intended to release those persons designated by class as well as those specifically named.

There is no claim in this case of fraud, misrepresentation or overreaching of Taor-mina. He was represented by counsel who filed suit and then represented him in settlement of the case. He and his attorney were cognizant of the treatment received for his injuries, including placement of the nail in the fractured femur. As previously demonstrated, the allegations of the plaintiff’s petition so show. When the case was settled, after all the treatment had been concluded, Taormina stipulated that the case should be dismissed with prejudice and he gave a general release which recited that he released LaMantia and all others for claims and liability which had or thereafter might occur in any way arising out of his injuries, losses and damages. If Taormina and his attorney had wanted to limit their settlement to claims against LaMantia and wanted to reserve his claim for malpractice against the doctors, they could have specifically so stated in the release and in the stipulation for dismissal. They did not do that. There was no reference to § 537.060, RSMo 1969, and the reservations it permits. Instead, Taormina gave an unqualified general release to Taormina and all others. Its language is clear and unambiguous.

The principal opinion seeks to justify a different result in this case from that reached in earlier Missouri cases on the basis that by affidavits filed by Taormina and his attorney they offered evidence to show that Taormina did not intend to release the doctors. That is not a valid distinction. There is nothmg to demonstrate that the language of the release and stipulation for dismissal were ambiguous and evidence such as that in the affidavits is inadmissible to alter or vary the terms of unambiguous instruments.

Our presently existing rule is sound and adequate. It provides both certainty and flexibility. If, as in this instance, it states that it is releasing specially named persons and all others from any and all liability in any way arising out from or out of a particular automobile accident, it means what it says and releases those specified by class as well as by name. On the other hand, if it is desired to release only a portion of those against whom a claim may exist, such limitation or reservation may be made by specifically so reciting.

The law should not be static and when reason for changing an existing rule of law is clearly demonstrated, a court should make needed changes and should not blindly follow the rule of stare decisis. However, such a need had not been demonstrated and is not present in this case. The principal opinion cites and relies on decisions in other states which have adopted a rule similar to that stated in the principal opinion. It is true that some states have so held but it also is true that many states have retained the rule, previously in effect in this state, that a general unambiguous release such as that given by Taormina has the effect of releasing other tortfeasors who have or might have any liability for damages resulting from injuries received. Annot., 39 A.L.R.3d 260 (1971). In my judgment, our present rule .is sound and should be retained.

      . In 1915, the General Assembly modified the common law to allow the release of one joint tortfeasor without, as a matter of law, releasing the other. Laws 1915, p. 268 (now § 537.060, RSMo 1969). The statute has been narrowly construed to require that the release provide “specific and clear limitation of the intended scope of the settlement where such consideration is described as partial, rights reserved as to remaining tortfeasors, or other appropriate language,” Liberty v. J. A. Tobin Construction Co., Inc., 512 S.W.2d 886, 890 (Mo.App.1974), in order that it not be deemed a bar to claims against remaining joint tortfeasors. However, our disposition of this case is not dependent on interpretation or application of § 537.060 because LaMantia and the physicians were not true joint tortfeasors. Their acts were independent and successive, not joint and concurrent. As this Court stated in Staehlin v. Hochdoerfer, 235 S.W. 1060, 1062 (Mo.1921), referring to the original tortfeasor and the subsequently negligent physician,
      [Tjhey were not joint tort-feasors; they were acting independently of each other; their several wrongs were committed at different times; and the tort of each, being several when committed did not become joint [merely] because its consequences united with the consequences of the other.
      Although this Court in Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 917 (banc 1950), labeled the original tortfeasor and the physician as “joint tortfeasors with respect to the aggravation,” that language did not change the essential holding or principle announced in Staehlin. The Schumacher court continued, “[T]he two injuries are not so legally connected that the satisfaction of, say, the original injury necessarily bars the suit for malpractice against the physician.”
      On the other hand, the 1915 abrogation of the common law rule relative to joint tortfeasors “was not designed to affect, and does not affect, the principle that there can be but one satisfaction for the same wrong.” Abbott v. City of Senath, 243 S.W. 641, 642 (Mo.1922).

      . Staehlin v. Hochdoerfer did not depart from this pattern. The Staehlin court remarked that the intent of the parties in regard to the release “must be gathered from the written releases themselves, considered in connection with the suits they were designed to dispense with,” 235 S.W. at 1062, but here too we do not read that statement as a rule of law, but more in the nature of a comment on evidentiary sources available for the decisional process.

      . This does not affect the extent of recoverable damages, nor alter the proposition that there may be only one full satisfaction for injuries. As this Court said in Vinson v. East Texas Motor Freight Lines, 280 S.W.2d 124, 133 (Mo. 1955): “When an injured party compromises or settles with one of concurrent or joint tort-fea-sors for a portion of the injuries, the injured person retains his claim . . . against the other tort-feasor and recovery may be had for the balance of the damages for the injury (unless the damage caused by each of concurrent or joint tort-feasors is clearly separable, permitting the definite assignment of responsibility to each).”

      . See Annot., 39 A.L.R.2d 260 (1971) and 1978 Supp. at 9.