author: SIMEONE, Presiding Judge. McMILLIAN, Judge.

text:
    Edward CONRAD, Administrator of the Estate of Fred J. Bowers, Respondent, v. Essie BOWERS, Appellant.
    No. 36422.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 16, 1975.

      Charles W. Medley, Farmington, Robert A. Dempster, Sikeston, for appellant.
    Roberts & Roberts, Geoffrey L. Pratte, Farmington, for respondent.
   SIMEONE, Presiding Judge.

This cause involves the construction of the recently enacted dissolution of marriage law adopted by the general assembly, §§ 452.300-452.415, RSMo Supp.1973, and specifically involves the interpretation of the term “marital property” as used in that act. While the facts are rather simple, the legal issues are complex and are not easily resolved.

This is an appeal by the appellant, Mrs. Essie Bowers, from a decree entered by the circuit court of Madison County on May 20, 1974, which dissolved the marriage between her and Mr. Fred Bowers and which divided certain real and personal property between the parties. The parties did not contest the decree insofar as it relates to the dissolution; all agree that there was no reasonable likelihood that the marriage could be preserved and that the marriage was- irretrievably broken, but the appellant-wife contends that the trial court erred in awarding all of the real estate to the husband, Fred, because the court’s finding “constituted an abuse of judicial discretion and was against the weight of the creditable [sic] evidence.” For reasons hereinafter stated, we affirm the result reached by the trial court.

A detailed review of the evidence is not necessary for the resolution of the issue presented — whether the court erred in awarding all of the real estate to the husband. The appellant, Mrs. Bowers, does not contest that portion of the decree awarding custody of the minor child, Fred, Jr., to the husband, but she does vigorously contend that the court erred in (1) awarding all the real estate to the husband because the court allegedly held that the real property acquired after the marriage had been acquired with funds derived from the sale of property which the husband owned prior to the marriage, and (2) not taking into consideration the various relevant factors listed in § 452.330, subsection 1. In oral argument before this court, appellant also contended that, in dividing the marital property, the trial court may consider only such “conduct” of the parties during the marriage as relates to financial matters and it may not consider socially unapproved conduct, unrelated to financial matters.

On November 23, 1973, Fred J. Bowers filed his petition for “divorce” under the law then in existence. He sought a “divorce” and custody of the parties’ one child, Fred, Junior. On May 15,1974, Mr. Bowers amended his petition alleging that the marriage was “irretrievably broken.” On December 20, 1973, Mrs. Bowers filed her cross-bill also seeking a “divorce,” custody of the child, Fred, Jr., and division of the property. The cause was tried under the new dissolution of marriage act.

Mr. and Mrs. Bowers were married in April, 1967, after a “courtship” of six years. At that time and prior to his marriage, Mr. Bowers worked in Chicago and its environs. Prior to his marriage, he owned, in his own name, a certain piece of real estate in Lombard, Illinois — hereinafter referred to as the Lombard property. This property was valued at approximately $35,000 by Mr. Bowers, and $45,000.00 by Mrs. Bowers. At the time of the trial court hearing, there was a mortgage on the Lombard property of approximately $7,000, leaving an equity of $28,000. The Lombard property was never sold, and was still in the name of Fred Bowers at the time of the dissolution hearing. Mr. and Mrs. Bowers, at the time of their marriage, moved into the Lombard property with Mrs. Bowers’ five children of a previous relationship. Mr. Bowers, while living in Illinois, also owned two “flats” or apartments which apparently were owned by Mr. Bowers and his former wife who died before he married his present wife, Essie. These two flats were sold after the marriage, and there was realized a profit of $16,500.00. With the proceeds of the sale of these two “flats,” Mr. and Mrs. Bowers purchased certain real property in Elm-hurst, DuPage County, Illinois — hereinafter referred to as the Elmhurst property. This property was purchased in the names of both Mr. and Mrs. Bowers. The Elmhurst property was valued at approximately $10,-000 by Mr. Bowers, and $15,000 by Mrs. Bowers. There was also a mortgage on this property of approximately $3,000, leaving an equity of some $7,000.00. Subsequently, the parties came to Fredericktown, Missouri and purchased a home, the title to which was also placed in their joint names. The Fredericktown property was purchased with proceeds from a loan on the Elmhurst property and from a loan of $10,000.00 from Evelyn Davis, Mrs. Bowers’ sister. There was also a mortgage on the property of $3,000.00, leaving an equity in the Freder-icktown property of $4,500.00

For a clearer picture of these transactions, we tabulate the following:

During the marriage, Mr. Bowers purchased several items of personal property, including a 1971 Mercury Marquis, an organ for $2900 and some other personal property.

The parties during the marriage had innumerable difficulties. For some periods of time prior to November, 1973, Mrs. Bowers’ four other children by a prior marriage were living in the Fredericktown home. Ethel, Essie’s sister, and her husband, Billie Bob Todd, and their children, and Evelyn, also Essie’s sister, were living with the Bowers at the Fredericktown house and had been there for some two weeks. One week, Ethel took ill and was taken to the hospital. Some time later she returned. A day after Ethel returned from the hospital to the Bowers’ home, Mrs. Bowers and Billie, Ethel’s husband, left the Bowers’ home at the same time with two of the children.

When Mrs. Bowers and Billie Bob, Ethel’s husband, left the Bowers’ home on November 2, 1973, they left in their respective automobiles. Mrs. Agnes McCollum, a witness for Mr. Bowers, testified that she owned a certain mobile court in Sikeston, Missouri. She testified that Mrs. Bowers came to her mobile apartments in November and told her “they” — Mrs. Bowers, Mr. Todd and two children — wanted to rent an apartment. They lived there a week. Ethel,- also a witness for Mr. Bowers, testified that she found her husband and Mrs. Bowers at that apartment — that she went there and asked “the lady if Essie and Bob Todd rented that apartment. She said, ‘Yes.’ ” This was denied by Mrs. Bowers and other witnesses, who insisted that she worked and lived in New Madrid in a motel for room and board. In any event, there was evidence that when Mrs. Bowers left the home she took the Mercury and sometime later removed a 24" color TV set, a 24" Olympic TV, a Grundig stereo, the Wurlitzer organ, boxes of clothing, an electric steam ironer, some furniture, two air conditioners and various other items. She did not remove a 1966 station wagon or some household items such as the stove and washer. She did remove some bedroom sets but left others. When she left the Bowers’ home she also had in her possession certain credit cards of Mr. Bowers’ — Bank Americard, Shell, Standard Oil and Penneys. During the period after she left the Fredericktown home, she charged certain items of clothing, merchandise and gasoline amounting to a total of $2,388.17, on these credit cards.

At the time of the dissolution hearing, Mr. Bowers was retired and was 66 years old. He had a monthly income of $233.00 from social security for himself and $49.70 for Fred, Junior. He was also receiving some rent now and then from two other properties. Mrs. Bowers had an eighth grade education and was thirty-eight years of age at the time of the hearing.

Mr. and Mrs. Bowers lived together from 1967 until November, 1973. Mrs. Bowers’ version of leaving in November was that she had “enough” and “I was going to leave whether he [Billie Bob Todd] went or not,” because she was “tired of working and cooking and washing clothes and looking after everybody.”

On May 20, 1974, after the hearing, the trial court entered its judgment. The court, after making certain findings, found that Mr. Bowers,

“ . . . prior to the marriage of the parties, was the owner of real estate and property, including the Lombard property and certain apartment buildings of a greater value than the property now owned, and that the acquisition of the property hereinafter referred to as the Elmhurst property, [and the property?] in Fredericktown, and the equity therein were [sic] acquired with the proceeds of the property previously owned by the petitioner [Mr. Bowers] . and that in equity the petitioner should be sole and exclusive owner of all such real estate and the respondent [Mrs. Bowers] should have no interest therein. The Court further finds that all of said property is marital property . . . .” [sic]

The court ordered that (1) the marriage be dissolved, (2) Mr. Bowers have custody of the son, subject to visitation rights, (3) all the real estate be awarded to Mr. Bowers, and Mrs. Bowers execute the proper deeds, (4) Mrs. Bowers retain the personal property in her possession, and Mr. Bowers retain the personal property in his possession, including the 1966 station wagon; (5) Mrs. Bowers’ attorney be paid by Mr. Bowers, and (6) Mr. Bowers be held responsible for “all” indebtedness owed by the parties.

Mrs. Bowers appealed, urging this court to reach our own results and enter an appropriate judgment because of the “great discrepency” in the division of marital property.

Our review on this dissolution of marriage case is the same as it was in a divorce case. It is our duty to review the case de novo upon both the law and the evidence and to reach our own independent conclusions, based on the law and the evidence presented. In doing so, however, we give due deference to the trial court’s assessment of the credibility of the witnesses, since it has a superior opportunity to observe them, and in case of conflict in the evidence we apply the rule of deference. We will not set aside the judgment unless it is erroneous. Powers v. Powers, 527 S.W.2d 949, 954 (Mo.App.1975); S_ v. S_, 514 S.W.2d 1, 4 (Mo.App.1974), and cases cited therein; Oliver v. Oliver, 325 S.W.2d 33, 38 (Mo.App.1959); Forrest v. Forrest, 503 S.W.2d 80, 83 (Mo.App.1973); D_ M_ S_ v. P_ E_ S_, 526 S.W.2d 361, 362 (Mo.App.1975); Rule 73.01(3).

The issues presented as we view them are (1) whether the trial court may consider “the conduct of the parties during the marriage” as one of the relevant factors in dividing the marital property; (2) and if so, what constitutes such “conduct” which may be considered; (3) whether the court erred in dividing the “marital property” shown in the evidence; (4) whether the law of Missouri — that property acquired after marriage and placed in the joint names of husband and wife is presumed to be a provision for the wife — is changed by § 452.330; and (5) whether the trial court ignored the relevant factors listed in § 452.330, subsection 1.

We start with the language of the dissolution of marriage act and particularly § 452.330. That section provides that (1) upon dissolution, the court shall set apart to each spouse his property and divide the marital property in such proportions as the court deems just after considering all relevant factors listed in subsection 1, including the “conduct of the parties during the marriage,” (2) marital property includes “all property acquired by either spouse subsequent to the marriage except:” “ . [property acquired in exchange for property acquired prior to the marriage . . and (3) all property “acquired by either spouse subsequent to the marriage . . . is presumed to be marital property” regardless of how title is held, but this “presumption ... is overcome by a showing that the property was acquired” “ . in exchange for property acquired prior to the marriage .. . .”

Section 452.330 is based on § 307 of the Uniform Marriage and Divorce Act approved by the National Conference of Commissioners on Uniform State Laws in 1970. 9 Uniform Law Ann. 455, 490 (1973). Section 307 provides that all property acquired after marriage is presumed to be marital property, except certain property acquired by gift or exchange, and further provides that the court shall divide the marital property in “just proportions” after considering the relevant prescribed factors. To this extent, § 307 of the Uniform Act is the same as § 452.330. There is at least one substantial difference between § 452.330 and § 307 of the Uniform Act. The Uniform Act requires a division of the marital property “without regard to marital misconduct,” whereas § 452.330, subsection 1(4) requires our courts to consider the factor of the “conduct of the parties during the marriage.” The Commissioners’ Note to the Uniform Act comments that the court is not to consider “marital misconduct, such as adultery or other nonfinancial misdeeds, committed during the marriage, in making its division.” 9 U.L.A., supra, § 307 at 492.

In view of our statute, it is clear that the act requires the trial court to consider, as one of the relevant factors in the division of marital property, the “conduct” of the parties during the marriage. This means both good conduct and marital misconduct. It is not limited to conduct relating to financial misdeeds as urged by counsel for appellant. See Powers v. Powers, supra, at p. 957.

As to the division of property, under § 452.330, the duties of the trial court are clear. First, the court is to set apart to each spouse “his [or her] property.” Secondly, the court “shall divide the marital property in such proportions as the court deems just after considering all relevant factors” including the “conduct of the parties during the marriage.” It is not necessary, however, that there be an equal division. Powers v. Powers, supra, at p. 957; Reed v. Reed, 516 S.W.2d 568, 570-571 (Mo.App.1974); Fowler and Krauskopk, Property Provisions, 29 J. of Mo.Bar, 508, 511-512 (1973).

Based upon the statute and what we believe to be the legislative intent, we are convinced that the result reached by the trial court is not erroneous and should be affirmed.

First, it was not disputed that the Lombard property was purchased and titled in the name of Mr. Bowers prior to his marriage with the appellant and remained so titled after the marriage. The Lombard property, therefore, is not marital property, and should be set apart to Mr. Bowers. The implication of subsection 2 of § 452.330 is clear that property acquired prior to, rather than subsequent to, the marriage and maintained and treated as such after the marriage is not marital property. That is what Mr. Bowers has done with the Lombard property, and that property is to be considered as his separate property and must be “set apart” to him.

Second, whether the Elmhurst property, purchased with proceeds from the sale of the apartments owned by Mr. Bowers prior to the marriage and placed in the joint names of Mr. and Mrs. Bowers after the marriage, is to be considered marital property is not so easily resolved.

Appellant contends that the trial court “apparently” awarded the real property to Mr. Bowers on the basis that the Elmhurst property had been acquired with funds derived from the sale of property which the husband owned prior to the marriage. But, appellant argues, it has long been the law of Missouri that “when real estate is taken in the name of the husband and wife, even though the husband furnished the consideration, it is presumed that the husband intended the conveyance as a provision for his wife and no trust results in favor of the husband.” Appellant relies on Sutorius v. Mayor, supra, and Lehr v. Moll, supra. See also Keefe v. Keefe, 435 S.W.2d 313, 314-315 (Mo.1968).

As stated, subsection 3 of § 452.330 provides that all property acquired by either spouse subsequent to the marriage is presumed to be marital property, but this presumption may be overcome by a “showing that the property was acquired by a method listed in subsection 2.” One of the methods of overcoming the presumption is to show that the property is acquired “in exchange for property acquired prior to the marriage . . .” If the presumption may be overcome by merely showing that the property was acquired in exchange for property acquired prior to the marriage, this would then conflict with the well-settled Missouri common law rule established by judicial decisions that when title to real estate is taken in the name of husband and wife, even though the husband furnishes the'consideration, it is presumed that the husband intended the conveyance as a provision for or a settlement upon his wife and no trust results in favor of the husband.

Hence, the issue to be resolved is whether the presumption that property acquired subsequent to the marriage in joint names is marital property is “overcome” by showing only that the after-acquired property was acquired “in exchange for property acquired prior to the marriage” or whether there must also be clear and convincing evidence that the property acquired subsequent to the marriage and held in “some form of coownership” was not intended as a settlement upon or a gift to the other spouse.

At first blush, it would seem that, under subsection 3 of § 452.330, the presumption that all property acquired subsequent to the marriage is overcome by merely showing that such property was acquired in exchange for property acquired prior to the marriage and nothing more. This would mean that a spouse owning property prior to the marriage could exchange that property, place such exchanged property in joint names and after many years of a happy marriage, defeat the right of the other spouse in such property with the result that the other spouse would have no interest whatsoever in the property held in joint names. This effect would follow: A husband who owned property prior to his marriage in his name could, upon exchanging that property after marriage and placing the title to the exchanged property in the joint names of himself and his wife, defeat any right of the wife to the jointly held property after many years of a loving marriage, child rearing and compatibility. We believe the general assembly could not have, by the dissolution act, intended such a result. We do not believe that the general assembly intended to overrule the well-settled common law presumption established by innumerable judicial decisions that if a spouse after marriage purchases property in joint names, even though one furnishes the consideration, it will be presumed, in the absence of clear and convincing evidence rebutting such presumption, that such a conveyance was intended as a provision for, or a settlement in favor of, or as a contribution to or gift to the marital estate. We believe, rather, that the general assembly intended that all property acquired subsequent to the marriage taken in joint names of husband and wife is marital property subject to division upon dissolution, unless (1) it is shown that the property acquired subsequent to the marriage was acquired in exchange for property acquired prior to the marriage and (2) it is shown by clear and convincing evidence that the transfer was not intended as a provision for a settlement upon or as a gift to the other spouse. If the only requirement to overcome the presumption that property acquired subsequent to the marriage was to show that the property was acquired in exchange for property acquired prior to the marriage many untoward and inequitable results would certainly follow.

Statutes are to be construed “to effect the modification and synchronization of statute law with common-law rules and maxims.” 2A Sutherland, Statutory Construction, § 50.02, p. 274 (4th ed. 1973). The law does not favor repeal by implication; in construing a statute all statutes applicable to a subject should be construed together and, if possible, harmonized so as to preserve the integrity of both. In re McArthurs Estate, 240 Mo.App. 435, 207 S.W.2d 546, 550 (1948); Gross v. Merchants-Produce Bank, 390 S.W.2d 591, 598 (Mo.App.1965).

Since the Elmhurst property was purchased in the joint names of Mr. and Mrs. Bowers, we hold that it is presumed that the property became marital property. While there was evidence to show that it was acquired in exchange for property acquired prior to the marriage, we find no evidence in the record to rebut the presumption so as to indicate that this property was not intended as a provision for, or a settlement in favor of, or a gift to Mrs. Bowers. We find no evidence that any estate was intended other than a “joint tenancy” (the property being located in Illinois). Hence, we must conclude that the Elmhurst property acquired subsequent to the marriage and prior to the decree of dissolution is marital property within the meaning of § 452.330.

The result we reach here is, we believe, consistent with decisions in other jurisdictions which have adopted the Uniform Laws. In Colorado, it has been held that “. . . when one spouse [having purchased a residence in joint names with his funds acquired prior to the marriage] causes title to be placed jointly with the other spouse a gift is presumed and the burden to show otherwise is upon the donor.” In re Marriage of Moncrief, 535 P.2d 1137, 1138 (Colo.App.1975); In re Marriage of Altman, 530 P.2d 1012 (Colo.App.1974). See also concurring opinion in Batesole v. Batesole, 24 Ariz.App. 83, 535 P.2d 1314, 1317 (1975); Cf. In re Marriage of Killgore, 532 P.2d 386, 388 (Colo.App.1974); Annot., 43 A.L.R.2d 917 (1955); Goldstein v. Goldstein, 310 So.2d 361, 366 (Fla.App.1975).

Third, the Fredericktown property purchased as a home for the parties in both names is clearly marital property, since it falls within none of the exceptions enumerated in § 452.330. Nixon v. Nixon, supra.

Therefore, (1) the Lombard property is separate property of Mr. Bowers and must be “set apart” as his property, (2) the Elm-hurst property is marital property and must be considered so in the division on dissolution and (3) the Fredericktown property acquired subsequent to the marriage is clearly marital property.

But, although we consider the Lombard property as separate property and the Elmhurst and Fredericktown properties as marital property, we nevertheless are convinced that there was no abuse of discretion by the trial court in reaching the result it did in awarding all the real estate to Mr. Bowers and in dividing the other property in the manner and amounts provided for in the judgment.

The trial court did not abuse its discretion in awarding Mr. Bowers the marital property—Elmhurst and Frederick-town. The equity in the Elmhurst and Fredericktown properties was approximately $11,500.00. Since Mrs. Bowers was awarded various items of personal property, including the 1971 Mercury, the organ worth approximately $2,700.00, the stereo, TVs and furniture, and was, as between the parties, relieved of all debts including the $10,000 loan from Evelyn, all mortgages and all charges on the credit cards charged by Mrs. Bowers amounting to almost $2,400.00, we cannot say that the trial court abused its discretion in awarding the real estate to Mr. Bowers or that the trial court’s judgment was against the weight of the evidence. The judgment specifically provided that Mr. Bowers was to be responsible for “all indebtedness.” The division of property between the husband and wife upon dissolution is a subject peculiarly within the discretion of the trial court, and its decision will not be overturned except for an abuse of discretion. Beals v. Beals, 516 P.2d 650, 651 (Colo.App.1973).

The appellant also contends that the trial court ignored the “guidelines” or relevant factors in making the division except for the contribution factor noted in the statute. We do not agree. The trial court in its order specifically indicated that in reaching its conclusion it considered the “contribution of each spouse,” the “economic circumstances of each spouse,” the “value of the property set aside,” and “the conduct of the parties during the marriage.” There was substantial evidence on each of these factors. Mr. Bowers was sixty-six years of age, Mrs. Bowers, thirty-eight. Mr. Bowers lived on social security. Mr. Bowers was given custody of the minor son. While denied by Mrs. Bowers that there was any misconduct with Mr. Todd, there was some substantial evidence of such misconduct.

We therefore conclude that the trial court did consider the relevant factors in making the division of the marital property.

In summary, we conclude that (1) for purposes of the division of marital property under § 452.330, the “conduct” of the parties during the marriage is a relevant factor to be considered by the trial court, (2) all property of one of the spouses acquired prior to the marriage which remains titled in such spouse after the marriage is, in the absence of some clear intention to contribute that property to the marital property of the parties or to the other spouse, the separate property of that spouse and is not to be regarded as marital property but on dissolution is to be “set apart to each spouse” as his or her property; (3) all property acquired by either spouse subsequent to the marriage and prior to a decree of separation and placed in the joint names of husband and wife is presumed to be marital property unless the presumption is overcome by showing (a) that the property was acquired in exchange for property acquired prior to the marriage and (b) it is shown by clear and convincing evidence that it was not intended as a provision for, or a settlement in favor of, or a gift to the other spouse.

After a careful examination of the entire transcript, the exhibits, the briefs and oral argument, we are convinced that the order of the circuit court dividing the marital property was just in the light of the four relevant factors listed in § 452.330. Although we find that the Lombard property must be considered as the separate property of Mr. Bowers, we reach the same result arrived at by the trial court and affirm the order as reasonable under all the circumstances.

The judgment is affirmed.

McMILLIAN, J., concurs in result only.

GUNN, J., concurs.

McMILLIAN, Judge.

I concur in the result reached only.

I agree with the majority that the trial court erred in holding that all of the property was marital property. Also, I am in accord with the fact that the Lombard property was non-marital property and should be set apart to Mr. Bowers. I do not agree, however, that the Elmhurst property, purchased with the proceeds derived from non-marital properties owned by Mr. Bowers prior to the marriage is marital property. True, the Elmhurst property was subsequent to the marriage and placed in the names of both spouses as joint tenants, but this only created a presumption that such property was marital property, § 452.-330, subsection 3; but subsection 3 also provides that the presumption is overcome if it is shown that the property was acquired by a method listed in § 452.330, subsection 2(2). Section 452.330(2) declares all property to be marital property if acquired by either spouse subsequent to the marriage except if acquired in exchange for property owned prior to the marriage, § 452.330, subsection 2(2).

If we accept the majority’s analysis, not only do we judicially legislate and substitute our judgment for that of the Legislature, but also we disregard the clear intendment of an unambiguous statute. While we may question the wisdom of the Legislature of enacting this particular statute, yet we should not resort to the guise of construing or interpreting a statute so as to distort the plain import of a legislative enactment. Neither should we assume that the Legislature was ignorant or unaware of prior judicial decisions pertaining to presumptions of gifts. Nor should we assume that the Legislature was ignorant or unaware of other legislative enactments pertaining to the same subject matter. Here we are interpreting a special statute that deals with the dissolution of marriage, disposition of property, separation, child custody and support, which is a code within itself and should not be set aside by either judicial decisions, construing the common law, or other statutory enactments contained in other chapters.

While I recognize that the law does not favor repeal by implication; however, that maxim is inappropriate in the instant case because § 452.330, subsection 2(2) and subsection 3 are clear and unambiguous. Accordingly, I would set apart the Elmhurst property as Mr. Bowers’ sole property.

      . Subsequent to the trial, Mr. Bowers died and the administrator of his estate, Edward Conrad, was substituted as a party.

      . The 1971 Mercury, the color TV set, one black/white TV set, the organ worth approximately $2700.00, the stereo, the furniture, air conditioner, and several appliances.

      . We take this to mean that it includes the credit card charges of $2388.17 and the $10,-000.00 that both Mr. and Mrs. Bowers owed Ethel. This judgment does not conflict with our recent decision of Rodden v. Rodden, 527 S.W.2d 41 (Mo.App.1975). That case involved a judgment to pay all extraordinary medical expenses. Such expenses were not definite. Here the expenses can be identified and can be made certain. Id certum est quod certum reddi potest.

      .The word “property” is not defined but it is comprehensive. See discussion of the definition of marital property in Claunch v. Claunch, 525 S.W.2d 788, 790 (Mo.App. 1975), and Nixon v. Nixon, 525 S.W.2d 835, 839 (Mo.App.1975), where marital property includes a settlement of a personal injury action.

      . The act does not indicate the degree of burden of proof to overcome the “presumption.” The common law presumption is that the property taken in the name of the husband and wife is presumed to be a provision for or a settlement on the wife, even though the husband furnished the consideration. Lehr v. Moll, 247 S.W.2d 686, 689 (Mo.1952); Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387, 392 (1943). The proof to overcome the presumption must be so clear that no reasonable doubt can be entertained of its truth, and the evidence must be so cogent and compelling as to exclude a reasonable doubt from the chancellor’s mind. See March v. Gerstenschlager, 436 S.W.2d 6, 8 (Mo.1969).

      . The act has been adopted in Arizona, Colorado and Kentucky. Ariz.Rev.Stat., §§ 25-311 to 25-339 (1973); 1971 Perm.Supp., Colo.Rev.Stat., §§ 46-1-1 to 46-1-33; Ky. Rev.Stat., §§ 403.010, 403.110-403.350 (1972).

      . The fact that misconduct could not be considered in the division of marital property influenced the House of Delegates of the American Bar Association in 1972 to defeat the Uniform Act. See discussion in Thayer, Introduction to Divorce Reform, 29 J. of Mo.Bar 496, 498 (1973).
      While “fault” is not determinative of whether the marriage should be dissolved, it is relevant to the division of the marital property. In some states this issue is not admissible on the issues of property division. See cases collected in Annot., 55 A.L. R.3d 581, 606-608 (1974).

      . The Commissioners’ Note defines these duties. 9 U.L.A., supra, at 492.

      . Although the trial court found in its judgment that all the property including the Lombard property was marital property, this cannot be true under the statute.

      . See Gaskie v. Gaskie, 534 P.2d 629, 632 (Colo, banc 1975) — where wife’s separate property did not lose its identity, property should not be included in the marital estate; Belcher v. Belcher, 307 So.2d 918, 920 (Fla. App.1975) — award to wife of furnishings which were property of husband prior to marriage was improper absent evidence of any gift or conveyance of same to wife.
      The Missouri act does not prohibit one spouse during the marriage from making a contribution to or a gift of any property, including his or her separate property acquired prior to the marriage, to the other spouse.

      .We do not construe this term as an exchange in kind but includes the situation where the property acquired prior to the marriage is sold and the proceeds are used to purchase another parcel of property. See In Re Marriage of Armbeck, 33 Colo.App. 260, 518 P.2d 300, 301 (1974).

      . The common law of Missouri and the judicial construction of § 452.330 has always been that if a spouse pays the consideration and has a conveyance made in joint names, it will be presumed that it was intended as a settlement upon, or a provision for or a gift to the other spouse. Gillespie v. Gillespie, 289 S.W. 579, 581 (Mo.1926); Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557, 560 (1945); Gaede v. Smith, 354 Mo. 738, 190 S.W.2d 931, 932 (1945); Keefe v. Keefe, supra; Sutorius v. Mayor, supra; Lehr v. Moll, supra.
      This is also the general rule throughout the United States. Bogert, Law of Trusts, § 74, pp. 271-272 (5th ed. 1973); Restatement, Trusts, § 442 (2d ed. 1959).

      . “No interests secured by law are of more fundamental importance to individuals and to society than interests of the family and in domestic relations. . . Because of the central and historic role of the family in society, legislation affecting domestic matters and relationships always has to be en-grafted into an established system of law, partly decisional and partly statutory. The twin principles of interpretation with reference to the common law and with reference to related statutes, are therefore always pertinent and important in construing statutes on the subject of domestic relations.” 3 Sutherland,- Statutory Construction, supra, § 68.01, at 239.

      . Color TV, $100; TV, $75; Mercury; organ, $2,700; stereo; credit card charges, $2,400; furniture; relief from loan amounting to approximately over $10,475.

      . § 452.330 specifically provides that the court consider the “economic circumstances of each spouse . . . including the desirability of awarding the family home . . . to the spouse [Mr. Bowers] having custody of any children . . . .” Subsection 1(3).

      . Under § 452.330, property acquired subsequent to the marriage is presumed to be marital property regardless of whether title is held iridividually or in some form of coownership. We take this to mean that property acquired subsequent to the marriage in the individual name of one spouse or in the name of one spouse and another, other than the other spouse, is presumed to be marital property unless the presumption is overcome by showing that the property was acquired in exchange for property acquired prior to the marriage and there is an absence of evidence that such property was intended as a contribution to, or a gift to the other spouse. Such property would, if the presumption is overcome, remain the separate property of the spouse and upon dissolution be set apart to such spouse.

      . See also Davis v. Davis, 534 P.2d 809 (Colo.App.1975); Fery v. Fery, 532 P.2d 1131 (Ore.App.1975).


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    YOUNG ELECTRIC, INC., Plaintiff-Respondent, v. Harold J. SUSMAN and Arlene R. Susman, Defendants-Appellants.
    No. 36451.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 23, 1975.
    Rehearing Denied Feb. 26, 1976.

      Lamar E. Ottsen, Jr., Thomas, Busse, Goodwin, Cullen, Clooney & Ottsen, St. Louis, for defendants-appellants.
    Raskas, Ruthmeyer, Schneider & Pomer-antz, Bernard A. Ruthmeyer, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendants-appellants appeal from a decision of the St. Louis County circuit court enforcing an Illinois judgment in favor of plaintiff-respondent under the provisions of the Uniform Enforcement of Judgments Law, § 511.760 RSMo 1969; Rule 74.79. The determinative issue of this appeal is whether we are to give full faith and credit to the Illinois judgment registered with the St. Louis County circuit court. We find that we are obligated to do so and affirm the judgment.

The Missouri phase of this action began with a petition filed by plaintiff in St. Louis County circuit court alleging that in 1968 the St. Clair County Illinois circuit court had entered judgment for plaintiff and against defendants for $26,955.97, plus costs. Plaintiff also alleged that defendants failed to satisfy any portion of the judgment and that it remained outstanding and unmodified. An authenticated copy of the Illinois judgment order reciting the entry of a summary judgment in favor of plaintiff was also filed, and the Illinois judgment was registered by order of the St. Louis County circuit court.

Defendants answered the Missouri court petition, admitting that the judgment had been entered against them and had not been satisfied. But defendants prayed that the registration of judgment be set aside on the ground that the Illinois judgment had been procured by fraud as a result of material misrepresentation contained in plaintiff’s affidavit filed in the Illinois circuit court in support of plaintiff’s motion for summary judgment in Illinois. Defendants attached as exhibits to their answer copies of the promissory note and guarantee which were the subject of the Illinois judgment and a copy of defendants’ counter affidavit in opposition to plaintiffs motion for summary judgment before the Illinois court.

At the hearing of the case before the St. Louis County circuit court, plaintiff presented only the certified and authenticated copy of the Illinois judgment order entered against defendants and defendants’ answer admitting that no payment had been made by or on behalf of defendants in satisfaction of the Illinois judgment. Plaintiff requested that interest be added to the amount of the Illinois judgment in accordance with Illinois law (S.H.A. ch. 74 § 3 (1966)) as provided for by Rule 74.79(n).

Over plaintiff’s objection, defendants offered evidence intended to prove that the Illinois judgment had been accomplished on an alleged fraudulent affidavit of plaintiff. The trial court heard defendants’ evidence subject to plaintiff’s objection that the Illinois judgment was entitled to full faith and credit, U.S.Const. Art. IV, § 1, and could not be collaterally attacked by defendants on the basis of alleged misstatements in the affidavit going to the merits of the cause. At the conclusion of defendants’ case, the trial court sustained plaintiff’s objection to defendants’ evidence in its entirety and granted judgment in favor of plaintiff for $26,955.97 plus interest and costs.

Defendants syllogize: 1) that Missouri is not constitutionally required to enforce an Illinois judgment procured by fraud; 2) that the evidence offered by defendants concerning fraudulent misstatements in plaintiff’s supporting affidavit for summary judgment was relevant and material to establish fraud in the procurement of the Illinois judgment; 3) that the Missouri trial court was, therefore, in error in sustaining plaintiff’s objection to such evidence.

In this court tried case, we review the matter de novo on both the law and the evidence, Tharp v. Oberhellmann, 527 S.W.2d 376 (Mo.App.1975). We briefly summarize the testimony and exhibits concerning the Illinois action offered by defendants in the Missouri trial court and which were subsequently stricken. The summary judgment granted by the Illinois court in favor of plaintiff was based on a cause of action arising out of a promissory note secured by a written guarantee. The affidavit executed by the president of the plaintiff corporation and filed in support of plaintiff’s motion of summary judgment in the Illinois action stated that defendant Harold Susman, doing business as H. Susman Construction, Inc., gave plaintiff a promissory note secured by a guarantee executed by Harold Susman and his wife, Arlene Susman, as individuals. Defendants’ evidence which was stricken in the Missouri trial court was intended to show that plaintiff’s affidavit for summary judgment contained fraudulent misstatements, in that plaintiff’s president knew, or should have known, that H. Susman Construction, Inc., was a viable corporation; that the promissory note was a corporate, not personal, obligation; that although the guarantee had been executed by defendant Harold Susman personally, it had not been executed by defendant Arlene Susman.

Full faith and credit requires that the judgment of a state court with jurisdiction of the parties and the subject matter “be given in the courts of every other State the same credit, validity and effect which it has in the State where it was rendered, and be equally conclusive upon the merits; and that only such defenses as would be good to a suit thereon in that State can be relied on in the courts of any other State.” Roche v. McDonald, 275 U.S. 449, 451-52, 48 S.Ct. 142, 143, 72 L.Ed. 365 (1928); Bittner v. Butts, 514 S.W.2d 556, 559 (Mo.1974). Thus, the Illinois judgment is subject to collateral attack in Missouri on the ground of fraud only if, upon the facts shown to the court, equitable relief could be obtained against the judgment in the state of rendition — in this case, Illinois. It is sufficient if relief in the original forum is available by collateral attack or by independent action in equity. Roche v. McDonald, supra; Roseberry v. Crump, 345 S.W.2d 117, 119 (Mo.1961), on transfer, 353 S.W.2d 825 (Mo.App.1961); Restatement Second, Conflict of Laws, § 115 (1969); Sedler, Recognition of Foreign Judgments and Decrees, 28 Mo.L. Rev. 432 (1963). And since defendants do not challenge that the Illinois circuit court had jurisdiction over both the subject matter and the parties in the original action on the note in St. Clair County, it is presumed that the Illinois court had authority to render the judgment and exercised jurisdiction properly over the persons. Venator v. Venator, 512 S.W.2d 451, 453 (Mo.App.1974); O’Neill v. Winchester, 505 S.W.2d 135 (Mo.App.1974). A party attacking a foreign judgment on the basis of fraud has the burden of overcoming the presumption of validity, unless the proceedings on their face show that the judgment is not entitled to that presumption. Scott v. Scott, 441 S.W.2d 330, 333 (Mo.1969); O’Neill v. Winchester, supra.

It is recognized in Illinois that a judgment is subject to collateral attack only in situations in which jurisdiction or colora-ble jurisdiction was based on fraud. Schwarz v. Schwarz, 27 Ill.2d 140, 188 N.E.2d 673, 676 (1963); Johnson v. Hawkins, 4 Ill.App.3d 29, 280 N.E.2d 291 (1972). Direct equitable relief against the enforcement of a judgment is available only on the ground of extrinsic or collateral fraud, that is, fraud going to the procurement of the judgment and which deprives a complainant of an opportunity to present a claim or defense or prevents him from appearing in court without any fault or negligence on his part. People v. Sterling, 357 Ill. 354, 192 N.E. 229, 233 (1934). In no event will intrinsic fraud alone, such as false testimony, false assertions of liability or false documents, authorize equitable relief, either by way of collateral attack or an independent action in equity. People v. Sterling, supra, 192 N.E.2d at 233; Beck v. Lash, 303 Ill. 549, 136 N.E. 475 (1922); Coolbaugh v. Coolbaugh, 33 Ill.App.2d 444, 178 N.E.2d 702 (1962); In re Luer's Estate, 348 Ill.App. 324, 108 N.E.2d 792 (1952); 88 A.L.R. 1201 (1934).

Defendants contend that the evidence tending to show that the Illinois summary judgment was based on an affidavit containing alleged fraudulent misstatements is relevant and material to a claim for equitable relief on the basis of fraud against the enforcement of the Illinois judgment. However, it is clear that the statements at issue in the instant case concern intrinsic fraud, that is, the alleged fraudulent conduct of the successful party practiced during the course of the adversary proceeding. Such allegations of fraud are not sufficient to authorize equitable relief under Illinois law. Hence, the trial properly excluded defendants’ evidence. The evidence was not relevant or material to establish fraud in the procurement of the judgment. Defendants have attempted to re-try the original Illinois suit by alleging a defense which goes to the merits of the action. The full faith and credit clause precludes any such collateral inquiry by a Missouri court into the merits of the action.

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . Although the parties have assumed that Missouri law controlled the resolution of the instant case, we must take judicial notice of Illinois case law under Rule 55.21(b). See Bartling v. Firestone Tire and Rubber Co., 275 S.W.2d 618 (Mo.App.1955); Hughes Provision Co. v. La Mear Poultry and Egg Co., 242 S.W.2d 285 (Mo.App.1951). In any event, the same result is dictated by Missouri law. False swearing or perjury during an adversary proceeding is not sufficient to establish fraud in the procurement of the judgment. Howey v. Howey, 240 S.W. 450, 456-7 (Mo. 1922) cert. denied 260 U.S. 730, 43 S.Ct. 92, 67 L.Ed. 485 (1922). Missouri cases cited by defendants concern fraud in obtaining the jurisdiction of the court. Cases relied upon by defendants concern a failure to properly assume in personam jurisdiction over the respective defendants because of false statements as to the residence of the defendants made by the successful parties, Leichty v. Kansas Bridge Co., 354 Mo. 629, 190 S.W.2d 201 (Mo. banc 1945), cert. denied 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009 (1945); In re Barger, 365 S.W.2d 89, 98 (Mo.App.1963), and are thus inappo-site here.

      . Similarly, in Missouri it is extrinsic fraud, not intrinsic, which is required to vitiate a judgment. Human Development Corp. v. Wefel, 527 S.W.2d 652, 655 (Mo.App.1975). The Missouri cases which have specifically dealt with the distinction between the terms extrinsic and intrinsic fraud have done so in the context of actions brought in equity to vacate, set aside or enjoin domestic judgments. See Hupp v. Murphy Finance Co., 502 S.W.2d 345, 349-50 (Mo.1973); Allen v. Smith, 375 S.W.2d 874, 879 (Mo.App.1964); J. R. Watkins Co. v. Hubbard, 343 S.W.2d 189, 192 (Mo.App.1961). The rule in Missouri providing equitable relief from a judgment on the basis of fraud has been described as follows:
      “ ‘. . . Equity will not interfere with or hold void a judgment at law unless there was fraud in the procurement of the judgment extrinsic to the matters upon which the judgment was rendered . . . Intrinsic fraud which pertains merely to an issue involved in the action in which the judgment was obtained, is not sufficient to afford equitable relief.’ ” Hupp v. Murphy Finance Company, supra, 502 S.W.2d at 349-50, quoting Drainage District No. 1 Reformed v. Matthews, 361 Mo. 286, 234 S.W.2d 567, 573 (1950) (emphasis original).


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lucious JOHNSON, Defendant-Appellant.
    No. 36822.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 6, 1976.
    Rehearing Denied Feb. 24, 1976.

      Thomas J. Nold, Robert O’Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Preston Dean, Philip M. Koppe, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was convicted by a jury of the offense of burglary second degree. Under the Second Offender Act, he was sentenced by the court to the custody of the Department of Corrections for a period of six years. On this appeal, he contends that the evidence was insufficient to sustain a judgment of conviction and that the court, therefore, erred in not sustaining his motion for judgment of acquittal. He further contends that the court erred in allowing the jury to hear identification testimony from the state’s eyewitness because the photographic identification and subsequent lineup were impermissibly suggestive so as to assure misidentification. We affirm.

The facts that sustained the conviction may be briefly stated. Juanita Person, then age 10 years, with her brother, Timothy Person, age 20 years, returned to the home of their parents, Mr. and Mrs. Timothy Person, Sr. on August 16,1974, between 4:00 and 5:00 p. m. Juanita was seated on the passenger side of the front seat of the automobile in which she was riding, and her brother was driving. As her brother pulled the car in the driveway at the home, she saw a green car in front of their house with a man sitting inside of it. She heard the car horn signal about five times and then a man, whom she identified as the defendant, came running out of the house. He first came out of the front door, ran across a front porch, down the steps, then through the yard within about ten or twelve feet from where she was getting out of the car. This man then entered the other automobile and it was driven away. When her parents came home, they determined that about $200.00 in money and a .25 caliber pistol had been taken from the house. They found a tire tool on a coffee table in the living room. The front door had been forced open. Upon viewing some black and white photographs submitted to her by the police, she picked out a, picture of the defendant. Later at a lineup, the same day, she again identified defendant. During the trial, she identified the appellant in court as being the man that she saw run from her home.

Mr. Timothy Person, Sr. took an active interest in investigating this burglary and subsequent burglaries to his house after his house had been broken into some three times. Because of his activities in another investigation which had nothing to do with defendant, he was arrested and placed in jail. While he was there, through a conversation with another inmate, he learned that the defendant was in the cell next to him. In an ensuing conversation with the defendant, the defendant suggested to Mr. Person that he, the defendant, could get some of Mr. Person’s things back if Mr. Person didn’t prosecute. Mr. Person identified the defendant in the courtroom as the man who had this conversation with him.

In order to sustain his first point on appeal, that the evidence failed to make a case for the jury, defendant urges that we invoke the standards necessary for sustaining a conviction based on circumstantial evidence of defendant’s identity as set out in State v. Phillips, 452 S.W.2d 187, 189 (Mo.1970). There the court stated that the rule with regard to circumstantial evidence requires that the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant’s guilt, but also must be inconsistent and irreconcilable with innocence and must point clearly and satisfactorily to guilt so as to exclude every reasonable hypothesis of innocence. The court held this rule applied to identification of the defendant. We need not concern ourselves, however, with the application of this rule to the facts in this case because the identification by Juanita Person was not circumstantial. Miss Person saw the defendant come out of her parents’ house, run across the porch, down the steps, across the yard, and then get into the getaway car. Not only did she identify the defendant in the picture shown to her by the police, and in the police lineup, but she also testified in court that the defendant was the man that she saw come out of her house and run to the car. This is not circumstantial evidence but direct evidence. Furthermore, the circumstantial evidence rule set forth in State v. Phillips, supra, is applicable only where the evidence of defendant’s agency in connection with the crime is entirely circumstantial. State v. McClure, 504 S.W.2d 664, 667[1] (Mo.App.1974).

Clear evidence of a forcible entry coupled with defendant’s presence inside a building is sufficient evidence to support a finding of guilty on a charge of second degree burglary. State v. Williams, 521 S.W.2d 169, 170[1] (Mo.App.1975). Miss Person’s testimony placed defendant inside the building since she testified that she saw him come out the front door. There was also testimony of a forced entry into the building through the front door, and the presence of the burglar’s tool inside the building on the coffee table. The first point advanced by defendant is without merit.

Defendant’s second contention of error concerns the allowance of the identification testimony of Juanita Person into the evidence. The defendant charges this testimony was impermissibly suggestive because of the circumstances surrounding the photographic identification and the subsequent lineup. Without going into these circumstances, which do not seem to support the charge, we fail to find that defendant has in any way preserved this point on appeal. In order to preserve this point for appellate review, defendant should have filed a pretrial motion to suppress the identification testimony, kept the issue alive by a timely objection at trial, and then should have presented this issue to the trial court' in his motion for new trial. State v. Miller, 490 S.W.2d 36, 37[1] (Mo.1973); State v. Brownridge, 459 S.W.2d 317, 320[8] (Mo.1970). Defendant furthermore has failed to demonstrate that any manifest injustice has been done to him or that there has been a miscarriage of justice in this case so as to place this point within the terms of Rule 27.20(c), allowing us to consider this as plain error.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Walter Lee SANDERS, Defendant-Appellant.
    No. 36192.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 6, 1976.
    Motion for Rehearing or Transfer Denied Feb. 26, 1976.
    Hayes & Heisler, Robert E. Heisler, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit .Atty., Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals his jury conviction of statutory rape and sentence under the Second Offender Act to 25 years imprisonment. The appeal centers on the issue of whether the trial court erroneously permitted the victim’s seven year old sister to testify. We affirm the judgment.

The sufficiency of the evidence is not challenged. The 15 year old victim and her seven year old sister identified defendant as the one-armed man, known to the victim as “candyman,” who forced his way into the victim’s home, placed a knife to the victim’s neck and after ordering the seven year old sister from the room, compelled the victim to have sexual intercourse with him.

The seven year old sister was preliminarily examined by the trial judge, the prosecutor and defense counsel as to her competency to testify, and after examination she was permitted to testify that she had seen the defendant force his way into the home and place the knife to her sister’s throat. She acknowledged that she did not see the sex act occur but did see her sister naked and the defendant putting on his clothes.

Defendant challenges the seven year old sister’s competency to testify. At one point in her examination the seven year old indicated that she did not “know what it means to lie or what would happen to her if she lied.” There was also indication that she did not fully comprehend the meaning of the oath administered to her. Defendant relies on § 491.060(2), RSMo.1969, and argues that under the provisions of that statute, the seven year old was incompetent to testify.

The test of competency for a child under ten, as outlined in State v. Young, 477 S.W.2d 114, 116 (Mo.1972), is:

“(1) present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.”

The ultimate responsibility for determining the competency of a child to testify rests with the trial court who occupies the best position to judge the qualification of the witnesses. And the trial court’s determination regarding the child’s fitness will be reversed only for a clear abuse of discretion. State v. Parton, 487 S.W.2d 523 (Mo.1972); State v. Starks, 472 S.W.2d 407 (Mo.1971); State v. Ball, 529 S.W.2d 901 (Mo.App.1975). A review of the record regarding the seven year old’s competency reveals no abuse of the trial court’s discretion in permitting her to testify.

The child stated that she knew the difference between the truth and a lie; that she had been taught at church that to lie was wrong. Although there may have been some inconsistencies in her testimony regarding her knowledge as to the difference between telling the truth and telling a lie, that fact does not preclude her testimony, as at the time of trial the trial judge was convinced that she did know the difference. State v. Young, supra. The trial court’s decision to allow the child’s testimony is buttressed by her testimony indicating that she had a practical understanding of the abstract concepts of truth and falsity. Her testimony also established that she had an independent recollection of the events surrounding the rape and that she was able to distinguish between her own independent recollection of what had occurred and what she had been told by others. The inability to understand the meaning of a specific term, such as “oath,” does not disqualify the witness or render her testimony inadmissible. State v. Ball, supra.

Defendant adverts to and relies upon State v. Jones, 360 Mo. 723, 230 S.W.2d 678 (1950), as basis for the disqualification of the seven year old. But State v. Jones is not apt here, for in that case a five year old child was incompetent to testify chiefly for the reason that her testimony on its face was incorrect. In this case the victim’s sister had her testimony corroborated by the victim, and it contained no inherent inconsistencies.

We find that the trial court did not abuse its discretion in permitting the testimony of the seven year old child. The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.


author: SIMEONE, Presiding Judge.

text:
    John Harold HAWKINS, Plaintiff-Respondent, v. Howard E. HAWKINS et al., Defendants-Appellants.
    No. 36293.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 20, 1976.
    Motion for Rehearing or Transfer Denied Feb. 26, 1976.
    Pannell, Dodson & Robinson, R. J. Robinson, Festus, for defendants-appellants.

      L. C. Brunson Hollingsworth, Alice Kramer, G. William Weier, Hillsboro, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Cutting through all extraneous matters, this is a claim by John Harold Hawkins to recover a “manager’s bonus” for the years 1964 and 1965 while managing a Western Auto Associate Store owned by Howard E. and Eleanora J. Hawkins. The trial court awarded judgment to the plaintiff-John Harold Hawkins. We affirm.

There was substantial evidence for the trial court to have found the following. In the summer or early fall of 1963, Howard Hawkins decided to purchase a Western Auto Associate Store in DeSoto, Missouri. He entered into an agreement with his brother John to manage the store owned by Howard and his wife, Eleanora. The agreement was that John would receive a salary of $100.00 per week and share in the profits and losses of the business. The agreement provided that John would receive fifty percent of the profits the first year, 1963, and twenty-five percent of the profits for each year thereafter. In 1963, John received his share of the profits. According to the testimony of the accountant, in 1964 the business made a profit of $11,198.63, and the manager’s bonus was $3,987.47. In 1965, the profit was $14,782.94, and the manager’s bonus was $4,927.65. The bonus for the two years claimed by the plaintiff was $8,836.75. In 1966 and 1967, the business suffered losses. The plaintiff, John Hawkins, was discharged in the early part of 1967 and thereafter, on September 4, 1968, filed his petition against Howard and Eleanora Hawkins d/b/a Western Auto Associate Store. The petition alleged that plaintiff

“. . . for his cause of action upon account and upon account stated, . . . states as follows:
“1. That there is due and owing him certain sums of money as manager bonuses during the years 1963,1964,1965,1966, 1967.
“2. Plaintiff further states that as of December 31, 1965, these bonuses were accrued to the sum and money of $8,836.75, which sum is due . .
“3. Plaintiff further states that he is informed and believes that bonuses accrued in 1966 and 1967, or parts thereof, upon which defendants refuse to pay or account.
“4. Plaintiff further states that the aforesaid sum of $8,836.75 is the reasonable value of the services furnished by plaintiff to defendants and that the amount thereof constituted and became an account stated.

The plaintiff then prayed for the amount due with interest.

Later, a motion to make more definite was made which was eventually sustained. On March 8, 1974, some six years later, plaintiff filed his first amended petition in which he alleged that (1) “in October of 1963 a certain agreement was made and entered into by and between plaintiff and defendants” which provided that the plaintiff would manage the store, (2) he would be paid a “certain salary and a percentage of the profits,” (3) this percentage was referred to as a “manager’s bonus” and (4) the amount accrued to a total of $8,838.75 (sic). He further alleged that he “duly performed” all of the conditions and duties of the “contract” and prayed for judgment.

The defendants answered denying the allegations of the petition and asserted affirmatively that “[a]ny cause of action plaintiff may have had” is “barred by R.S.Mo. 516.120 in that it is based upon an alleged oral contract and said cause of action was not brought within five years as provided by law.”

On May 29, 1974, a hearing was held before the court without a jury. The defense was basically that there was a problem with the inventory which was in charge of the plaintiff and that the business was not making the gross profit it should have been.

After a hearing, the trial court entered judgment in favor of plaintiff in the amount of $4,903.12.

In due time the defendants appealed. The appellants contend on this appeal that the trial court erred (1) in entering judgment against Eleanora J. Hawkins, the wife of Howard, because there was no substantial evidence in the record to establish that plaintiff had a contractual arrangement with her, and (2) in entering judgment in favor of the plaintiff because the cause of action was barred by the statute of limitations. In developing this point, appellants contend that plaintiff’s recovery was grounded upon an alleged breach of an oral contract which accrued in March, 1967. Defendants contend that the initial petition filed in September, 1968 sought relief upon an “account stated” but that the amended petition filed in March, 1974 sought relief for breach of an employment contract, and since this petition stated an entirely new and distinct cause of action from that in the original petition, the action is barred by the five year statute of limitations. § 516.-120(1). Defendants argue that the original petition on an “account stated” did not state a cause of action because the essential elements were not pleaded, and even if it did state a claim, the amended petition alleging a breach of a specific agreement did not relate back to the original petition so that the claim is thereby barred by the five year statute of limitations.

The plaintiff-respondent, on the other hand, contends that (1) there was sufficient evidence presented to the court so that the court could properly render judgment against Eleanora Hawkins, and (2) the amended petition relates back to the original one so that the action is not barred by the statute.

As to appellants’ first point, there was evidence that Eleanora was the owner of the business and some evidence that she was also responsible for the bonuses. But, in any event, this point is deemed abandoned because no authorities are cited in support thereof. J. L. W. v. D. C. W., 519 S.W.2d 724, 728 (Mo.App.1975); Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 886 (Mo.App.1974); Earney v. Clay, 516 S.W.2d 59, 63 (Mo.App.1974).

As to their second point, we agree with appellants that an action for the breach of an oral contract is barred if not maintained within five years. § 516.120(1); McCandlish v. Estate of Timberlake, 497 S.W.2d 191, 195 (Mo.App.1973); Thompson v. School District No. 4, 71 Mo. 495 (1880); Magee v. Mercantile-Commerce Bank & Trust Co., 343 Mo. 1022, 124 S.W.2d 1121, 1125 (1938). But the principal issue to be resolved, in our opinion, is whether the amended petition filed in March, 1974, relates back to the original petition so as to preclude the operation of the statute of limitations.

This is a court tried case. The usual rules apply thereto. We must examine the record de novo, reach our own independent conclusions, but defer to the trial court in matters of credibility and not set aside the judgment unless it is erroneous. After examining the complete record, we are convinced that the judgment should be affirmed.

Appellants contend that the original petition filed in September, 1968 upon an account stated did not state a cause of action. In Simrall v. Morrow, 362 S.W.2d 765 (Mo.App.1962), plaintiff sought to recover an attorney’s fee from defendant on the theory of account stated. The petition alleged (1) that the defendant employed plaintiff to institute suit for partition on behalf of defendant and that a final decree was entered ordering the sale of said property and that defendant was indebted to plaintiff in the amount of $10.00 for cash advanced and for an attorney’s fee in the amount of $2,000.00; and (2) that plaintiff forwarded a statement but that defendant had failed to pay said account. On appeal defendant contended that the petition was fatally defective because plaintiff did not plead facts to state a claim because there was “no allegation that the parties agreed upon a sum due from defendant to plaintiff . .” Simrall v. Morrow, supra, 362 S.W.2d at 766. The court held the point well taken, since there was no allegation that the parties agreed upon a sum due and that defendant promised to pay said balance. In the course of the opinion, the court relied upon several decisions which hold that by an account stated is meant that the parties have had an accounting between themselves and have agreed upon a balance or a sum certain owing by one to the other which the debtor has agreed to pay. The court held that in an action on account stated, the agreement to pay the balance or a sum certain and a promise to pay must be specifically pleaded.

The doctrine of account stated, founded originally on the practice of merchants, is that when parties to an open account reach an “agreement with respect to the totality of the transactions between them, the new transaction is called a ‘statement’ of account, and the situation between the parties is called an ‘account stated’ . . . . ” An account stated is an “agreement based upon prior transactions between the parties, with respect to the correctness of the separate items composing the account, and the balance, if any, in favor of the one or the other.” 1 Am. Jur.2d, Accounts and Accounting, § 21, p. 395 (1962). Although counsel for plaintiff used the words “account” and “account stated,” the original petition filed by plaintiff is a claim in fact that a sum of money was due for manager bonuses and that the plaintiff performed services in that capacity for the defendants in their business. The petition filed is in effect one which seeks to recover money due for services as manager of the defendants’ Western Auto Store. The amended petition is one based on a breach of an agreement between the parties that plaintiff would manage the store and that he would receive a certain salary and a percentage of the profits. It too is a claim for moneys due for services performed as the manager but based on an alleged oral agreement.

Prior to September 1, 1973, Missouri did not have a rule on “relation back.” The general principles to determine whether or not the statute of limitations had run when an amended petition was filed were stated in Miller v. Werner, 431 S.W.2d 116, 118 (Mo.1968), and cases cited therein. See also McDaniel v. Lovelace, 439 S.W.2d 906, 909 (Mo.1969).

In Miller, supra, plaintiff first filed a petition which alleged that the defendant physician “negligently and unskillfully” removed several cysts. Later, after the statute of limitations had run, an amended petition alleged that the defendant was guilty of malpractice because he failed to warn the plaintiff of the likelihood of an unsightly scar resulting from the removal. Defendant moved to dismiss on the ground that the action was barred by the applicable statute of limitations. The Supreme Court sustained defendant’s position. Plaintiff’s amended petition pleaded lack of informed consent. The Court stated the rules applicable.

“ ‘Where an original petition is merely defective and is made good by amendment, after the running of the limitation period, the statute is held not to apply. * * * Where, however, an amendment introduces into the petition a cause of action entirely new and distinct from that pleaded in the original petition and the amendment is made after the end of the limitation period the new cause will be held to be barred. * * * The tests which must be applied to determine whether * * * the cause of action stated in the amended petition is a new one are * * *: (1) whether the same evidence would support both petitions; (2) whether the same measure of damages will apply to both.’ . . . The general rule is that an amendment will not relate back to the filing of the original petition and save a cause of action from the bar of the statute of limitations ‘if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment * * *.’ ” Miller v. Werner, supra, 431 S.W.2d at 118.

See also Arpe v, Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 668 (1929).

On September 1, 1973, Rule 55.33(c) became effective. That Rule provides in pertinent part:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

The Rule is derived from Rule 15(c) of the Federal Rules of Civil Procedure. This Rule “re-emphasizes and assists in attaining the objective of the rules on pleadings: that pleadings are not an end in themselves, but are only a means to the proper presentation of a case; that at all times they are to assist, not deter, the disposition of litigation on the merits.” 3 Moore, Federal Practice, ¶ 15.02, p. 813 (2d Ed. 1974). “Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford. . .”3 Moore, supra, ¶ 15.15[3], at 1025. Under the Federal Rules and now under Rule 55.33(c), while it is still true that an amendment which states an entirely new claim for relief based on different facts will not relate back, yet if the amended pleading arose out of the “conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” the amendment does relate back. We believe that Rule 55.33(c) was specifically designed to change the law as set forth in Miller v. Werner, supra, and McDaniel v. Lovelace, supra.

While inartfully drawn, plaintiff’s original petition is a claim to recover manager bonuses for certain years, amounting to $8,836.75, that his services were furnished to the defendants and that the amount sought was reasonable for the services furnished. The characterization of the petition as an “account stated” or “account” does not determine the theory of the petition and may be regarded as surplusage. The petition gave sufficient notice' of the situation involved between the parties and gave sufficient notice of the general transaction between the parties. The transaction was that the plaintiff performed services for the defendants in the defendants’ store and that he was entitled to manager bonuses for such services.

The amended petition also dealt with the same transaction, although it alleged an agreement.. The amended petition reemphasized that plaintiff managed the defendants’ store and that he would be paid a salary and a percentage of the profits. The amended petition arose out of the conduct or transaction set forth or attempted to be set forth in the original petition and hence, in our opinion, related back to the original petition. The proof necessary to sustain his claim would have been the same in either case. Therefore, we reject appellants’ contention that the amended petition did not relate back and appellants’ contention that the action is barred by the statute of limitations.

We have carefully considered the entire transcript, the briefs of the parties and the authorities relied upon and we are convinced that the judgment of the trial court is not erroneous.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . The balance was paid to the plaintiff prior to filing his petition.

      . The court found that plaintiff was entitled to the sum of $8,838.75 in accrued bonuses but that the defendants were entitled to a set-off of $2,000 for a bonus previously paid and $1,935.63 due defendants on plaintiff’s open account.

      . “The general rule is that an amendment will not have such effect [of relation back] if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment; for such an amendment would constitute a departure. . . . ” Arpe v. Mesker Bros. Iron Co., supra, 19 S.W.2d at 670.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, . v. Raymond L. GOVERO et ux., Appellants.
    No. 36570.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 20, 1976.
    Motion to Withdraw Opinion or Consider the Merits or for Rehearing Denied Feb. 26, 1976.
    Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for appellants.
    Bruce A. Ring, Chief Counsel, Jefferson City, Richard E. Baker, Asst. Counsel, Mo. State Highway Com’n, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Condemnation action. A jury gave defendant land owners a $7,500 verdict; they appeal from the ensuing judgment. In accordance with Rule 84.08 we dismiss the appeal for defendants-appellants’ failure to comply with Rules 84.13(a) and 84.04(d).

Defendants-appellants vaguely claim trial error concerning the propriety of testimony of adverse expert witnesses, jury argument and cross examination of a witness. In the trial court defendants failed to object to any of these alleged improprieties. Rule 84.13(a) precludes our review of such points when not initially presented to and expressly decided by the trial court.

We add that appellants’ brief sets out three abstract Points Relied On. Not one complies with Rule 84.04(d) which requires an appellant’s brief to state “what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Hence, the appellants’ phantom Points Relied On preserve nothing for our review.

In Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223[3] (Mo.App.1972), we pointed to the drastic increase in appellate case load and declared: “With such a burden we must not only call on counsel to follow the rules on appeal but must demand it. It is only with the conscientious and effective help of lawyers practicing in our court that the appellate process will continue to function.” Accordingly, we dismiss the appeal. Rule 84.08.

KELLY and STEWART, JJ., concur.


author: CLEMENS, Judge.

text:
    Jane ORTNER, Appellant, v. George TERRY, Respondent.
    No. 36,553.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Feb. 3, 1976.
    Rehearing Denied Feb. 26, 1976.

      Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Larry B. Luber, John J. Cole, St. Louis, John W. Hammon, Hillsboro, for respondent.
   CLEMENS, Judge.

Plaintiff Jane Ortner had a verdict and judgment for $20,000 for injuries suffered in an automobile collision June 23, 1972. She appeals on the ground that inadmissible evidence adversely affected the amount of her verdict, contending the trial court erred in admitting into evidence four letter-reports written by a consulting physician. Dr. W. H. Wurr, the treating physician, had referred plaintiff to Dr. Paul Stohr, a neurosurgeon, for consultation, examination and treatment; the letter-reports had been written by Dr. Stohr to Dr. Wurr.

Plaintiff received multiple injuries in the collision, particularly a severe blow on her head. She was unconscious when admitted to the hospital and soon developed headaches, causing Dr. Wurr to suspect intracra-nial bleeding. A week later plaintiff went into a coma, required artificial respiration, and upon recovery her reactions were slow and her speech slurred. Dr. Wurr called Dr. Stohr and this relationship between plaintiff and the two doctors continued for a year and a half, until shortly before trial. Dr. Wurr considered Dr. Stohr to be a competent neurosurgeon and was satisfied with his services to the plaintiff.

We need not detail plaintiff’s extensive objective and subjective states of physical ill-being. They were several before the collision, but not severe, and she had been fully engaged as an office clerk and homemaker. She contends that after the collision her states of ill-being were severe and eventually rendered her unemployable and in need of nursing care. As usual in such cases, there were diverse contentions about the causation.

Dr. Wurr testified in detail at trial about having examined and treated plaintiff for several years before the accident, particularly the two years thereafter, during which time she had been jointly seen by Dr. Stohr, the consulting neurosurgeon. Plaintiff read into evidence the deposition of Dr. Stohr. Dr. Stohr had examined and treated plaintiff four times and had promptly written Dr. Wurr to report his findings and recommendations.

Defendant cross examined Dr. Wurr about these four documents written by Dr. Stohr and they are the core of plaintiff’s appellate contentions. We recite them in chronological order. (When, why or by whom the underlined portions were so marked is not shown by the record.)

Exhibit D "Neurosurgery, Inc., Francis S. Walker, M.D., Paul E. Stohr, M.D., August 31, 1972. Re: Ortner, Jane. Dear Dr. Wurr: Jane Ortner was seen in the office today. She is doing extremely well. She is gradually increasing her activities. Many thanks for sending her to us. Sincerely, /s/ Francis S. Walker, M.D."
Exhibit A "Office Records. Re: Jane Ortner. May 25, 1973. Mrs. Ortner was seen in the office today. Since discharge from the hospital has continued to have mild sensory and motor deficit on the left side. After returning to work as an accounting clerk she noted Increasing difficulty with right sided headache. This usually began at work and was relieved by laying down. There is no warning with the headache. When the headache is very severe she has increasing deficit on the left side plus difficulty with her speech. She has noticed no visual symptoms and when the headache is over she has no aftereffects. Tuesday of this week she began to have a headache. It occurs in waves of pain, terribly severe, has remitted very little and has not been controlled by Darvon and Darvon-N. She has had no difficulty with hypertension, she states that there is no family history of migraine. She has no history of seizures. She has had no stiff neck with the present episode and her history certainly does not suggest recurrence of subarachnoid hemorrhage.
"On examination her fundi are normal. Pupils are equal and react well. Visual fields are full. Extraocular movements are normal. There may be a very mild left central facial weakness. Speech is hesitant understanding is perfect. There is very mild left sided weakness in arm and also the leg with symmetrical reflexes and no Hoffmann or Babinski sign. There is no extinction to simultaneous touch, figure writing is well recognized on the left side although she states subjectively the left side does not feel quite normal. I have decided to try her on Ergomar since I think that the history suggests migraine or vascular tvoe headache and have told her that if she does not feel better tomorrow that she should call me tomorrow and we would consider hospitalization.
I have pointed out to her the dangers of the medication."
Exhibit B "October 12, 1973. Dr. D. H. Wurr, Arnold Medical Center, Arnold, Missouri. Re: Ortner, Jane. Dear Dr. Wurr: Mrs. Ortner was seen in the office today. She is seen today because she has fallen three times in the past few weeks. She had been walking unassisted and her major problems seem to be stuttering speech and decreased mental dexterity. She has noticed no change in strength or sensation in the left lower extremity, no change in upper extremity function although it remains less useful than the right upper extremity. She has not had any blackout spells or other evidence of seizure disorder. She is walking well with a cane with the left ankle bandaged. Her pupils are equal and react well. Fundi are normal. Visual fields are full. There is no facial weakness. There may be some very mild diffuse weakness in the left upper extremity but a full range of motion with normal reflexes. normal sensation to pinprick and to figure writing on the fingertips was noted. There is no extinction to simultaneous touch in the upper extremities. She walks slowly with a cane but her gait seems to be stable. She can walk on her heels and toes. She can squat and rise and can support all of her weight on the extended left lower extremity. Reflexes are normal. Proprioception is normal. There may be a mild patch of hypalgesia to pinprick but no dermatomal loss. Strength is very good in the left lower extremity and in all muscle groups.
"I cannot explain this lady's tendency to fall. Finger to nose testing is well done. She holds the Romberg position without difficulty. I suggest that she get an elastic knee support and to return if she has continued disability.
"Sincerely, Paul E. Stohr, M.D."
"February 8, 1974. Re: Ortner, Jane. Dear Dr. Wurr: Jane Ortner was seen in the office today. She tried to return to work one day and found that she could not get going and keep up with the work because of mental slowness. On another occasion, in a beauty parlor, she felt dizzy and began crying and had to be helped from the parlor to your office. Since that time, she has had insomnia, persistent depression with crying, stuttering and mental slowness and headache. The headache Is mainly right hemicrania. It is frequent and often not very severe but she seems to ruminate on the pain. She has noticed no other change in her neurological status. She still feels that her grip on the left is less than on the right and she still has a tendency to drag the left lower extremity which feels heavier than the right.
“On examination, she is obviously depressed and stuttering and is mentally slow. Palpation of the head is unremarkable. Pupils are equal and reactive. Fundi are normal. Visual fields are normal. There Exhibit C is no facial weakness. Lower cranial nerves are intact. She has very mild weakness of the left grip and mild hyperreflexia on the left side, mild diffuse weakness of the left lower extremity. Sensation to touch reveals no extinction. Proprioception is good bilaterally and figure writing is well recognized on the fingertips of both hands.
"Obviously, this lady is depressed but her disability is so that she should be admitted to the hospital, I think, for work up. She should have skull films, BS, a right brachial angiogram and pneumocephalo-gram and assuming that these tests are normal, a psychiatric consultation should be sought. Her gait shows a mild apractic disturbance so that occult hydrocephalus must even be considered.
"Directly to be admitted to Firmin Des-loge Hospital February 11, 1974.
"Sincerely, /s/ Paul E. Stohr, M.D."

In chambers, after Dr. Wurr’s direct testimony, defense counsel told the court he intended to use the four documents to cross examine Dr. Wurr. Plaintiff objected basically to the documents as not qualifying as business records, and also objected to their ultimate admission for several specific reasons. The trial court understood defense counsel was offering the four documents as Dr. Wurr’s business records instead of records of the writer, Dr. Stohr, and ruled them inadmissible “unless the defense is able to establish that the documents were prepared by Dr. Stohr pursuant to the Uniform Business Records as Evidence Act.” (§ 490.660 et seq. RSMo 1969).

As defense counsel prepared to call in a qualifying witness from Dr. Stohr’s office, plaintiff’s counsel waived that necessity, agreeing that the four documents met the requirements of the Business Records Act as to preparation and custody. Plaintiff’s counsel did reserve the right to make specific objections to parts of the documents.

Defense counsel’s cross examination of Dr. Wurr included the following pertaining to Dr. Stohr’s four written reports:

Exhibit D. Dr. Wurr recalled the initial August 31, 1972 letter from Dr. Stohr’s office stating “she [plaintiff] is doing extremely well. She is gradually increasing her activities.” Dr. Wurr testified he understood that to mean plaintiff had shown good recovery considering her grave condition and further neurological studies were negative.

Exhibit A. In Dr. Stohr’s May 25, 1973 report he related plaintiff’s complaints of severe headaches and that “her history certainly does not suggest recurrence of subar-achnoid hemorrhage . . . but suggests migraine or vascular type headaches.” Dr. Wurr disagreed with that opinion and expressed his own opinion that plaintiff’s headaches were the result of the original hemorrhage.

Exhibit B. Dr. Wurr had received Dr. Stohr’s October 12, 1973 report stating plaintiff said she had fallen three times in the past week and Dr. Stohr’s comment he could not explain her tendency to fall. Dr. Wurr testified he had observed plaintiff’s unstable walk but she had never told him of falling.

Exhibit C. In Dr. Stohr’s last report of February 8, 1974 he noted plaintiff was depressed and her disability so great she should be hospitalized for tests, and “assuming these are normal, a psychiatric consultation should be sought.” Dr. Wurr did not recall discussing this with Dr. Stohr, but interpreted the letter only as a recommendation for hospitalization.

At the close of evidence, defense counsel offered the four documents in evidence. The trial court “allowed the introduction” of the four exhibits but simultaneously refused defendant’s request to pass them to the jury. Plaintiff now contends Dr. Stohr’s letter-reports were inadmissible and adversely affected the extent of her recovery.

A trial court has wide latitude in allowing cross examination of expert witnesses. Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78[14, 15] (1956). Here, Dr. Wurr had referred plaintiff to Dr. Stohr, a specialist in whom he expressed confidence. The two doctors consulted and worked together in treating plaintiff. We hold it was proper to allow defendant to cross examine Dr. Wurr on the basis of statements Dr. Stohr had made to Dr. Wurr about plaintiff in the course of treating her. This is akin to cases where counsel is permitted to cross examine a doctor on the basis of a medical textbook, particularly where the witness has acknowledged the text is authoritative. We hold the trial court properly allowed cross examination of Dr. Wurr on the basis of the reports Dr. Stohr had made to Dr. Wurr. Compare Gridley v. Johnson, 476 S.W.2d 475[3-4] (Mo.1972).

Plaintiff now argues it was error to permit Exhibits A, B, C and D to be used to cross examine Dr. Wurr because there was no adequate foundation for them under the Uniform Business Records as Evidence Act. Plaintiff argues the exhibits were not business records of Dr. Wurr. This is not the point, since the letter-reports were not used as Dr. Wurr’s records but as records of Dr. Stohr who wrote them. Plaintiff next argues these exhibits were not admissible as Dr. Stohr’s records. This contravenes plaintiff’s trial concession concerning their basic admissibility without waiving the right to specific objections. The right to challenge the admissibility of these exhibits as business records was waived in the trial court.

The only specific objection briefed by plaintiff is that when plaintiff took Dr. Stohr’s perpetuation deposition defense counsel “did not inquire of the contents of said office note and letters [Exhibits A, B, C and D], thereby denying any opportunity to plaintiff for any redirect examination” to rehabilitate Dr. Stohr. Plaintiff’s premise is that defense counsel had the four exhibits when plaintiff took Dr. Stohr’s deposition; her conclusion is that defendant thereby waived his right to use the exhibits to cross examine Dr. Wurr at trial. The record does not support plaintiff’s premise; it does not show defense counsel had received the four documents when plaintiff deposed Dr. Stohr. We need not rule on her conclusion since plaintiff’s premise falls.

Plaintiff now contends the trial court erred in granting the jury’s request for exhibits, particularly A, B, C and D. We quote what occurred at the close of evidence.

“MR. COLE: Like Exhibits A, B, C and D, which have been identified in the record. I would like to introduce those and pass them to the jury.
“MR. COX: I object to those, because they are medical reports and there has been testimony about them and cross examination, and it is not proper for the jury to see them.
“THE COURT: May I see them? The Court will allow the introduction of A, B, C, and D .
“MR. COX: May I make a record on that?
“THE COURT: Yes, you may. I was about to say I would deny the jury the use of reading the reports. I will deny the jury the right of reading the reports.
“MR. COLE: They are admitted?
“THE COURT: Yes.”

Thus, Exhibits A, B, C and D were introduced in evidence, but neither read nor shown to the jury. Thereafter, when, the jury retired to deliberate, the following occurred:

“MR. COX: I make a specific objection [sic] Defendant’s Exhibits A, B, C and D with respect to their being given to the jury, in that there already has been testimony and cross examination on Defendant’s Exhibits A through D.
“THE COURT: But they were admitted into evidence, were they not? Your objection being to passing them to the jury?
“MR. COX: They are piecemeal reports. They are not in total . . .
“THE COURT: Overruled.”

Plaintiff’s only specific objection to giving Exhibits A, B, C and D to the jury was that they were already in evidence. We limit our review to that objection. Giving admitted exhibits to the jury was discretionary. Yeager v. Wittels, 517 S.W.2d 457[17] (Mo.App.1974). We find no abuse of discretion considering counsel’s specific objection that the exhibits were already in evidence.

Plaintiff’s last point concerns the trial court’s refusal to admit Item 16 of the Exhibit 21. That document was a ‘‘personnel test” plaintiff had taken three years before her injury when she applied for employment. Item 16 of the test was a list of multiple-digit numbers in two parallel columns, and the test was to tell which were identical. The trial court refused plaintiff’s proffer to show plaintiff had answered correctly. Plaintiff contends the item was relevant since it showed she did well on that test. Conceding some relevance, the item was cumulative. Plaintiff, her doctor, her husband and three others had already testified about plaintiff’s comparative conditions before and after her injury. The ex-elusion of evidence is harmless where it is cumulative and the fact has been established by other evidence. Steele v. Yacovelli, 419 S.W.2d 477[4, 5] (Mo.App.1967). We hold the offered item was cumulative and find no prejudicial error in its rejection.

Judgment affirmed.

KELLY and STEWART, JJ., concur.