author: MANFORD, Judge.

text:
    EMCASCO INSURANCE COMPANY, Respondent, v. AUTO DRIVEAWAY COMPANY, Appellant.
    No. 30039.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.

      James C. Wirken, Frederick H. Riesmeyer, II, Kansas City, for appellant.
    Jack F. Olson, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from jury verdict for $1,850.00 upon a bailment. Motion for new trial timely filed and overruled. Reversed and remanded for retrial on issue of damages only.

Appellant is engaged in the business of delivering automobiles to various parts of the United States. Respondent is a casualty insurance carrier. On August 23, 1975, a 1975 Pontiac Gran Prix automobile was stolen from its owner in the Kansas City, Missouri area. The owner had purchased the automobile some nine days before the theft. The automobile was found abandoned in California on September 4, 1975.

The parties herein entered into an agreement whereby, for a fee, appellant was to have the automobile transported back to Kansas City. The police released the automobile to appellant’s possession. Appellant then contracted with one Irving Wilder to deliver the automobile to respondent. The automobile never arrived as expected, and respondent filed suit for nondelivery. During the pendency of the suit, the automobile was recovered by the F.B.I. in Tuscaloosa, Alabama and eventually returned to respondent. During the intervening time, respondent paid to its insured (the original owner) the sum of $5,750.00, which represented the amount of the loss of the automobile. There was and continues to be a major dispute over the damage to the automobile and further as to when particular damages to it actually occurred. The automobile was ultimately sold by respondent for the sum of $3,910.00.

At trial, respondent attempted to recover the sum of $1,840.00, which represented the alleged loss on the actual resale of the automobile, plus expenses in the sum of $475.00.

Appeal is made, alleging error in the giving of the instruction on damages alone. The question of liability has been abandoned on this appeal.

Appellant contends the court erred in giving MAI 4.01. The court should have given MAI 4.02 on the theory that MAI 4.02 is the applicable instruction on damages in property cases only. Respondent counters by alleging the suit was one for breach of contract and that respondent was entitled to recovery for its total loss, including expenses. Respondent also alleged that MAI 4.01 was the proper instruction because it instructs the jury on general damages and more clearly fits the facts of this case.

Careful review of respondent’s petition reflects a cause of action predicated upon a theory of breach of contract and thus a claim for general damages pursuant to that alleged as breach.

Had the trial proceeded with the evidence in strict conformity with the petition, not only would respondent’s prayer for general damages be correct, but respondent’s contention relative to MAI 4.01 would also be correct.

A careful reading of the transcript, however, reveals the evidence did not conform to the petition. At the time suit was initiated, the vehicle had not been recovered. Upon trial, however, recovery of the automobile had been achieved, it had been sold and evidence of its resale made a part of the record. The result of this evidence caused respondent’s theory of the case, originally circumscribed by the pleadings, to be modified. See State ex rel. Conaway v. Consolidated Sch. Dist. No. 4 of Iron County, 417 S.W.2d 657 (Mo. banc 1967), where at page 659, our State Supreme Court ruled regarding pleadings, “The rule is well established in Missouri that the character of a cause of action is determined from the facts stated in the petition and not by the prayer or name given the action by the pleader.” Further, on the question of case theory and the effect of evidence upon trial of the issues, see Sydney v. Coca-Cola Co., 569 S.W.2d 11 (Mo.App.1978) wherein on page 12, it was held, “ . . . plaintiffs’ theory of recovery at the trial court level must first be ascertained . . . It is appropriate at this juncture to be reminded that the theory of a case is framed by the pleadings either as drawn or as amended by the evidence.”

This is a case involving damages to property only, and MAI 4.02 should have been submitted to the jury, not MAI 4.01. MAI 4.02 carries within it the measure of damages as the fair market value before damage and the fair market value after damage. Such a measure of damage is the rule of most jurisdictions, while within our own state, there appears no case of record in bailment prescribing such measure of damages.

In finding that it was error to have submitted MAI 4.01 and error to have refused to instruct the jury on MAI 4.02, the conclusion is reached that in bailment cases involving property only and where there has not been a total loss or destruction of the property, the measure of damages shall be the difference between the fair market value of the property before it was damaged and its fair market value after it was damaged.

For the reasons set forth herein, this cause is reversed and remanded for trial upon the issue of damages only.

All concur.


source: Caselaw Access Project

author: CLARK, Judge.

license: Public Domain

text:
    Rita J. FERRY, Appellant, v. Nelson E. FERRY, Respondent.
    No. KCD 30073.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.

      R. M. Gifford, Green City, for appellant.
    Joseph M. Ellis, Macon, for respondent.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   CLARK, Judge.

In this appeal from the judgment entered in a marriage dissolution case, appellant wife asserts error in decretal provisions for division of marital property and denial of maintenance pursuant to terms of an ante-nuptial agreement. An extended recitation of the facts, essentially undisputed, is necessary to place the controversy in appropriate context.

The parties first became acquainted some six months prior to the marriage while respondent was engaged in farming leased acreage near appellant’s then place of residence. Each had prior marriages terminated by divorce and each had one child born of such earlier unions. During their courtship a mutual interest in farming was a factor of attraction and appellant worked helping respondent in the fields almost every day.

The date of the marriage was January 4, 1973. Some weeks earlier, in anticipation of the marriage, respondent had suggested and the parties had discussed the desirability of a formal agreement to settle property matters upon termination of the marriage by death or divorce. Appellant prior to the marriage owned some personal property of insignificant value. Respondent’s assets consisted of farm machinery, motor vehicles, livestock, crops and cash. Appellant’s motivation for entering into the agreement establishing future restrictions on property and economic claims was her mistaken opinion that without such an agreement respondent or his family would share in an inheritance in prospect for appellant’s son by a prior marriage from the estates of appellant’s mother and stepfather.

Respondent had the antenuptial agreement drawn by his attorney. A copy was supplied to appellant a few days before the marriage. Appellant neither sought nor received legal advice as to the effect of the document before she accompanied respondent to his attorney’s office on January 2, 1973 for the purpose of signing the agreement. While there, the terms of the agreement were discussed. Appellant noted some changes she wanted made, but because of the press of time, the agreement was signed without change but subject to subsequent modifications to conform to appellant’s wishes. These changes were not, however, made and the effective agreement is that in the form as originally prepared.

The antenuptial agreement provided for retention by the parties of their separate property during and subsequent to the marriage and for the release of any future claim to homestead, family allowance or any other marital rights on death and for the release of any future claim for support, alimony, attorney fees and costs on separation or divorce. Appellant, however, was to receive the household furnishings, an automobile and $1000.00 should she survive respondent after remaining married to and residing with him to his death or, in the event of divorce, appellant was to receive the household goods and the automobile.

A schedule of assets owned by respondent was attached to the agreement as an exhibit. Farm equipment, vehicles, livestock and cash were listed, but no values were shown, except as to the cash, and no debts or encumbrances appear. Some assets were omitted including some bonds and life insurance. No assets of appellant were listed, apparently because of the nominal worth attached. Neither party owned any real estate and none was acquired during the marriage.

The separation of the parties occurred April 27,1977 and appellant commenced her action for dissolution May 20, 1977. Irretrievable breakdown of the marriage was alleged and was not contested. No allegations of marital misconduct were made and no evidence on the subject was offered at trial. Appellant’s day-to-day participation in the family farming venture was undisputed, the evidence being that appellant operated farm machinery, drove trucks and otherwise worked in crop production and in farrowing and finishing hogs and feeder pigs.

The extent of appellant’s education was not disclosed. She had, however, been employed from time to time before the marriage as a practical nurse and returned to this occupation after the separation. At the time of trial she was earning $130.00 to $140.00 a week. Respondent remained on the farm continuing his agricultural pursuits as before.

As noted above, the value of assets brought by appellant to the marriage was nominal, such property having consisted of personal effects, some household goods and an automobile which appellant later assigned to her mother in repayment of a debt. The net worth of respondent cannot be calculated as of the date of the marriage because of the omissions from the agreement exhibit of values, debts and some assets. At trial, appellant offered and the court received as exhibits a financial statement of the parties prepared as of January 1977 and an income tax return. Such exhibits were not filed with this court and the data therein which would cast some light on this subject is therefore unavailable. It can be concluded, however, that respondent’s personal property at the time of the marriage was of significant value. At the time of the separation the same types of assets were owned but, by reason of four years’ farming activity some vehicles and machinery had declined in value, some had been replaced by newer equipment or additions and livestock and crops were those of the current season.

The court in its decree ordered the marriage dissolved and, after finding the ante-nuptial agreement to be controlling as to division of property, award of maintenance and allowance of fees and costs, granted appellant the household furnishings and automobile and set all other property over to respondent subject to any debts owed thereon. Appellant’s request for maintenance and an allowance of attorney fees was denied.

On this appeal appellant challenges the efficacy of the antenuptial agreement to strip her of her share in marital property and of her claim to maintenance on the grounds that such agreements are against public policy and that the agreement was an overreaching by respondent and fundamentally unfair to appellant. Also implicit in consideration of these issues is the effect of the Dissolution of Marriage Act, Sections 452.300 to 452.415, which, pursuant to Section 452.415, controls this proceeding, although the antenuptial agreement and the marriage predated the Act.

Appellant’s first point, the rejection of antenuptial agreements on grounds of public policy, requires examination both as a general concept and as expanded or modified by the Dissolution of Marriage Act. Appellant cites no Missouri authority supporting the contention that public policy in this state disapproves of antenuptial agreements. Decisions from a number of other jurisdictions do, however, indicate a consistent historical pattern of judicial opposition to agreements contingent on divorce. A typical statement of the rule so evolved is, “Any antenuptial agreement that looks forward, provides for, facilitates, or tends to induce a separation or divorce after marriage is contrary to public policy and void.” Evans, Antenuptial Contracts, 47 UMKC Law Review 31, 45 (1978), quoting 2, A. Lindey, Separation Agreements and Ante-nuptial Contracts § 90-27 (1964).

The decisions express a different attitude toward antenuptial agreements contingent on death, an arrangement which finds favor premised in part on an assumption that such agreements promote domestic harmony. In fact, Missouri has by statute expressly approved marriage settlement contracts to take effect on death. Section 474.-120. Although the subject agreement also provided for restriction of death benefits, that aspect of the antenuptial agreement treating inheritance and survivorship rights is not within the scope of this ease.

In those cases which attempt justification for general opposition to antenuptial agreements contingent on divorce, the reasons most frequently given are (1) contracts are not compatible with and denigrate the status of the marital relation, (2) such agreements tend to facilitate and provide an inducement for divorce, and (3) a contract waiving or minimizing alimony may cast an indigent spouse on public charity. Examples of cases adopting these views are: Norris v. Norris, 174 N.W.2d 368 (Iowa 1970); Crouch v. Crouch, 53 Tenn.App. 594, 385 S.W.2d 288 (1964), and Fricke v. Fricke, 257 Wis. 124, 42 N.W.2d 500 (1950), in which it was stated that such an agreement “invites dispute, encourages separation and incites divorce.”

More recently, however, a line of authority supporting antenuptial agreements contingent on divorce has emerged. Foreshadowing this development were comments by the Missouri Supreme Court in Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707, 712 (1950). Although disposition of the case resulted in rejection of the premarital contract on the ground that the husband had failed to disclose fully the extent of his assets, the court noted by general observation that marriage settlements are not against public policy in Missouri.

The case most frequently cited as the leading departure from the former rule condemning antenuptial agreements contingent on divorce is Posner v. Posner, 233 So.2d 381 (Fla.1970), which recognized dilution of the state’s opposition to divorce and held that public policy no longer justified a per se rejection of contracts settling alimony and property rights. Two conditions were imposed by the Posner court, the first being that the agreement be fair between the parties, a subject to be examined in each case by the court, and the second that the agreement be applicable only as to conditions existing at the time the agreement was made. Subsequent cases which have followed the reasoning in the Posner case are: Parniawski v. Parniawski, 33 Conn. Sup. 44, 359 A.2d 719 (1976), where the court concluded that disposition of both property and alimony rights are proper subjects of an antenuptial agreement; In re Marriage of Dawley, 17 Cal.3d 342, 131 Cal. Rptr. 3, 551 P.2d 323 (1976), which disavowed a prior decision on agreements not contemplating lifelong marriage and held such agreements invalid only if the terms encourage or promote dissolution; Flora v. Flora, 337 N.E.2d 846 (Ind.App.1975), holding that antenuptial agreements contingent on divorce are not against the public policy of Indiana; Eule v. Eule, 24 Ill.App.3d 83, 320 N.E.2d 506 (1974), where the court stated the trend in the law is to uphold ante-nuptial agreements if fair.

In brief, a marked departure from the former position of unqualified opposition to antenuptial agreements determining property division and support upon dissolution of the marriage is evident. Clark, Antenuptial Contracts, 50 Univ. of Colorado Law Review 150 (1979). The authorities here noted are sufficient to conclude that it is no longer valid merely to assign “public policy” as a basis to reject such agreements if fairly reached between the parties and if adequately providing support for the spouse consistent with need and available resources. Appellant’s contention that the subject agreement is unenforceable on grounds of general public policy is not supported by any significant current authority. Dardick, Marital Contracts, 13 Univ. of Louisville School of Law, Journal of Family Law 23, 37 (1973-74).

The subjects of property division and spousal maintenance with which antenup-tial agreements are most intimately concerned are also treated in the Dissolution of Marriage Act. As to division of property, Section 452.330, and the grant of maintenance, Section 452.335, affirmative duties are created which were previously unknown but which now require the court to intervene in areas where the parties were formerly relegated to private agreements or subsequent litigation. Public interest in economic affairs incident to dissolution of the marriage finds expression in this Act which was designed to impose judicial control under specified guides. Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). It therefore is pertinent to ascertain how public policy as embodied in this Act circumscribes the latitude of parties to contract by ante-nuptial agreements on subjects of future property division and maintenance.

By reason of Section 452.325, where provision is made for contractual resolution of issues as to property disposition and maintenance under a separation agreement, public policy now favors such agreements and, indeed, the language of the statute expressly advocates this means to promote amicable settlements. As reflected in the Commissioners’ Comment to Section 306 of the Uniform Marriage and Divorce Act at 488, “This section entirely reverses the older view that property settlement agreements are against public policy because they tend to promote divorce.”

Freedom of contract in property settlement is not, however, unfettered but is subject to judicial review under Section 452.325-2 for conscionability. An unconscionable agreement must be renegotiated by the parties, or failing that, support, maintenance and property division will be adjudicated by the court. Conscionability is the same standard employed in commercial law, meaning protection against onesidedness, oppression or unfair surprise. Uniform Marriage and' Divorce Act, Commissioners’ Comment, supra.

Similar standards of judicial review of antenuptial agreements have been the rule in Missouri long predating the adoption of the Dissolution of Marriage Act. Such agreements will not be enforced unless entered into freely, fairly, knowingly, understandingly and in good faith with full disclosure. Wilson v. Wilson, 354 S.W.2d 532 (Mo.App.1962). These principles have certainly survived and are implicit in the statutory directives which now govern the trial courts in property division and maintenance awards in dissolution eases. When confronted with an antenuptial agreement purporting to settle issues of property division and maintenance ancillary to an action for dissolution of marriage, the court is therefore bound by that agreement only if the provisions are conscionable and if the agreement was fairly made. Subject to this qualification which affords protection to the unwary and ill-informed spouse, ante-nuptial agreements as such are neither contrary to public policy nor precluded by the Dissolution of Marriage Act.

In her second point, appellant contends that the agreement made on the eve of her marriage to respondent was, in fact, unfair and that she should not be held to its terms which precluded any recourse to future maintenance and foreclosed any claim to property of more than nominal value. Appellant’s point indicates that the subject agreement is contended to be invalid because unfair either by standards applicable for review of antenuptial agreements prior to enactment of the Dissolution of Marriage Act or by the measure of conseionability applicable to separation agreements under Section 452.325. The sole Missouri authority cited is Wilson v. Wilson, supra, a case which predated adoption of the Dissolution of Marriage Act. Independent research has disclosed no subsequent decision in this state directly in point and none treating the consequences upon such issues resulting from this legislation. For the reasons hereafter given, it is unnecessary in this opinion to confront the question of whether an antenuptial agreement fairly reached when made in anticipation of marriage may later be found to be unconscionable upon separation or dissolution of the marriage where intervening years, acquisition or loss of assets or changes in income or dependency have wrought significant economic change. No opinion is expressed on this feature of appellant’s contention.

In the review of circumstances attendant upon the preparation of the subject ante-nuptial agreement it is noted that appellant was prompted to enter into the agreement for the purpose of protecting an inheritance which her son by a former marriage expected to receive. While both parties evidently believed in good faith that such was in appellant’s interest, the assumption was patently erroneous. As a consequence, appellant having no assets worthy of mention, the agreement operated solely to insulate respondent’s property from division. This disparity of consideration weighs heavily in measuring the fairness of the agreement.

Other events which accompanied the preparation and signing of the antenuptial agreement bear significant indicia of overreaching. The agreement was prepared by respondent’s attorney in private consultation with no opportunity for appellant to relate her version of such oral understanding as may have been reached. Appellant was herself not represented by counsel and, although some minimal option was available for her to seek independent advice, she received none. The completed document was given appellant to read a few days in advance, but she reviewed it only casually and had little comprehension of its import. Actual signing of the agreement was in the office of respondent’s attorney two days before the wedding under the constraint of limited time for discussion and revision. Appellant’s signature was obtained despite her objections to some terms which it was represented would be changed, a promise unfulfilled. Some assets owned by respondent were not fully disclosed and the actual value of assets listed was not given.

The circumstances of the parties as to premarital assets and income generating potential were such that what purported to be a mutual release of claims was in fact a unilateral release by appellant of future claims to support by respondent and to share in assets otherwise distributable as marital property. Under these facts, about which there was no significant dispute, the antenuptial agreement was fundamentally unfair under the standards of Wilson v. Wilson, supra, and would likewise fail to survive scrutiny for conseionability under Section 452.325 as a separation agreement. The judgment of the trial court finding the agreement a bar to appellant’s claim for maintenance erroneously applies the law and must be reversed. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

As to division of property on dissolution of the marriage, the antenuptial agreement referred only to property owned, held or acquired by each of the parties and made no reference to property jointly acquired or that generated by the mutual efforts of appellant and respondent. Irrespective of the previous conclusion that the agreement fails because unfair, its application to property acquired subsequent to the marriage and defined as marital property under Section 452.330-2 is inconclusive and ineffectual. In its decree the trial court made no identification of marital and nonmarital assets or their value, a requirement of Section 452.330. That some marital assets did exist is apparent from respondent’s testimony that all crops for 1977 were still on hand, a situation no doubt also applicable to the livestock.

Property which respondent owned prior to the marriage is by the definition of Section 452.330-2 nonmarital property and would not be subject to division by the court irrespective of the validity of the antenuptial agreement. The court is, however, obligated to identify and divide the marital assets between the parties, again irrespective of the validity of the antenup-tial agreement but in response to the direction of the statute.

For the reasons stated, this cause must be remanded to the trial court for entry of judgment on appellant’s claim for an award of maintenance and for orders as to division of marital property. The paucity of evidence in the present record concerning appellant’s expenses after separation, respondent’s income and expenses and the identity and value of marital and nonmarital assets indicates the necessity for supplementation of the somewhat meager facts upon which the trial court was previously obligated to enter judgment.

Reversed and remanded.

All concur.

      . All statutory references are to RSMo 1978.

      . The antenuptial agreement was later invalidated on grounds of nondisclosure. Posner v. Posner, 257 So.2d 530 (Fla.1972).

      . Cases from other jurisdictions considering this question are: Unander v. Unander, 265 Or. 102, 506 P.2d 719 (1973), holding that the ante-nuptial agreement will be enforced unless the spouse is deprived of support she cannot otherwise secure; Eule v. Eule, 24 Ill.App.3d 83, 320 N.E.2d 506 (1974), holding void an antenuptial agreement clause waiving alimony because an attempted avoidance of a husband’s legal duty of support; Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978), holding that public interest requires the duty of post-marriage dissolution support to be assessed as of the date of dissolution and declaring void any antenuptial contract to the contrary; In re Marriage of Gudenkauf, 204 N.W.2d 586 (Iowa 1973), holding that antenuptial agreements which prohibit alimony are contrary to public policy and void.


author: SWOFFORD, Chief Judge.

text:
    Nellie M. HUGHES, Respondent, v. Herman CHRISTIAN, and J. D. Williams, d/b/a Consolidated Cabs, and Consolidated Cabs, Inc., Appellants.
    No. KCD 30123.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    Alan R. Browne, Ennis, Browne & Jensen, Kansas City, for appellants.
    Gregory 0. Grounds, Jones, McDaniel & Frankum, Kansas City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The source of this appeal is an action for personal injuries sustained by the respondent (plaintiff) as a result of a rear end collision with a Consolidated Taxicab which was then being driven by appellant (defendant) Christian. The collision occurred on September 6, 1977 when the plaintiff, southbound on Broadway, had stopped the automobile she was driving at the intersection of 5th and Broadway in Kansas City, Missouri in response to a red traffic signal and was waiting for the westbound traffic on 5th to clear so she could make a right-hand turn to pursue a course to the west. While so stopped, her vehicle was struck in the rear by the Consolidated cab, also southbound on Broadway. Suit was filed December 12, 1977 against Christian and J. D. Williams, d/b/a Consolidated Cabs, and Consolidated Cabs, Inc. All three defendants were properly served with summons on December 14 and 16, 1977, but failed to answer, and a default judgment was entered on February 2, 1978 against the defendants in the sum of $10,000.00.

On February 27, 1978, a Motion to Set Aside this judgment was filed on behalf of Christian and Williams, the first sentence of which contains the parenthetical statement “(Defendant Consolidated Cabs, Inc. having taken bankruptcy)”. The corporation does not further appear in this record and no appeal was taken on its behalf from the judgment or the court’s order overruling the motion to vacate the default, which ruling was designated by the trial court as a final order for purposes of appeal.

The joint motion of Christian and Williams, supported by their affidavits, in summary, admits the service of summons in the case but asserts that the service papers were turned over to an office employee, John Hobbs, whose duty it was to place all such papers with, and to secure the services of, the company’s attorneys to defend the suits. At the time, Hobbs had the service papers in two other suits which had been filed against the company. Hobbs did secure the services of that firm in the two cases last referred to, but “through oversight” failed to do so as to the Hughes suit, and the default judgment resulted. The motion and supporting affidavit of Christian states that the defendants have a meritorious defense to the Hughes claim due to the sudden, unexpected, unforeseeable rupture of the line carrying the brake fluid on the taxicab and the resulting loss of braking and brake failure immediately before the collision. Further, they assert that they had good reason and excuse for their default due to Hobbs’ “inadvertent” oversight in failing to secure the services of counsel and their lack of knowledge of such failure until notice was received of the default judgment.

An evidentiary hearing was conducted on the motion to vacate and Christian and Williams both testified in support of these allegations. As to the mechanical failure of the brakes, the only evidence was that of Christian, who testified that although he had experienced no trouble with the brakes prior to the time in question, they did suddenly go out so that he could not avoid striking the Hughes automobile; that the point of impact was the left front of his taxicab and the right rear of the Hughes automobile; that his speed was 15-20 miles per hour at impact; and, that following the collision, brake fluid was leaking from his car at the left front wheel.

As to the oversight and neglect of Hobbs, the evidence established that Christian gave his service papers to Williams, and Williams stated that he, in turn, gave all of the service papers to Hobbs with the above-mentioned instructions to secure counsel; and all such actions were in conformity with standard company practice. It should be noted that Williams, although in communication with the company’s law firm (about other litigation) after service and before judgment in the Hughes case, never made inquiry to ascertain whether the Hughes papers were in their hands for defense and neither Hobbs nor any member of the law firm were called as witnesses at the hearing. What happened to the Hughes papers was never disclosed.

It should be noted that present counsel for appellants were only retained to handle the proceedings to vacate the judgment, and this appeal, and had no connection with nor responsibility for the litigation prior to that time. Further, this record discloses that the default judgment was not entered in any perfunctory manner but upon a complete record disclosing the nature and extent of plaintiff’s injuries to her neck and hand, resulting in extensive medical attention, emergency hospital care and medication, including neck support, and a long period of physical therapy, extreme headaches, pain, discomfort and loss of wages by reason of her inability to work for two months and three weeks. A medical report from her attending physician, Dr. Medlicott, M.D., of the Midwest Orthopedic Clinic, was made a part of the record, as were various medical bills. Her special damages, including loss of wages, exceeded $1600.00.

After receiving the evidence on the motion to vacate, the trial court held that although the defendants had established at least a prima facie defense to the Hughes claim, their evidence did not establish a factual situation which showed that they exercised reasonable diligence to avoid or excuse their default under the recognized authorities. The trial court also remarked about the possible injury to the plaintiff, Hughes, which could result from the necessary delay due to the bankruptcy of the corporation involved and dispute over the application of the bond or deposit of the defendants required by Kansas City as a condition for the licensing of taxicabs.

The Court on March 3, 1978, overruled the motion to vacate the judgment. It is to be noted, as did the trial court, that this was within the 30 days after judgment was rendered.

The appellants raise a single point on appeal. They charge the trial court abused its discretion by failing to find that the evidence “that the inadvertent failure by the bookkeeper” to deliver the service papers to the attorneys for defense and “the mistaken belief by the defendants that this had been done”, demonstrated reasonable diligence and excuse for default.

There is no substantial dispute (nor, indeed, can there be) as to the general principles of law that control a situation such as presented on this record.

Whether or not a default judgment should be set aside by a trial court rests generally within that court’s sound discretion and its determination of that motion will not be set aside unless it appears that there has been an abuse of that discretion. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955).

Certain guidelines have been firmly established for the exercise of that discretion and the factors to be considered. Of course, the underlying consideration is that courts generally favor the trial of cases on the merits, but where a defaulting defendant moves to set aside the adverse judgment, the court must consider 1) whether a meritorious defense to the initial cause of action is shown; 2) reasonable diligence or excuse for the default appears; and 3) no substantial injury to plaintiff will result from the delay occasioned. Whitledge v. Anderson Air Activities, supra.

The burden of persuasion of these elements is upon the moving party, and as was said in Whitledge v. Anderson Air Activities, supra, at 1. c. 116[3]:

“* * * It has been generally held that, in order to justify a trial court in setting aside a default judgment, a defendant must have shown that he has a meritorious defense, and that he has good reason or excuse for the default; and, when a trial court has overruled a motion to set aside a default judgment and the trial court’s action is reviewed, the trial court’s action will not be disturbed unless the elements of reasonable excuse and meritorious defense are so clearly apparent that it is manifest the refusal to set aside was arbitrary. The possible injustice to plaintiff because of delay is to be also considered. * * *” (Emphasis added)

See also: Williams Energy Co. v. Tracy Truck Leasing, Inc., 562 S.W.2d 765, 767[1-3] (Mo.App.1978).

All of the cases dealing with this subject point out that these principles must be applied to and determined upon the particular facts, circumstances and proof adduced in each case. It is obvious from the record before us in this case that the trial court concluded that the defendants had made a prima facie showing of a defense to the Hughes claim, namely, the failure of the braking system on the taxicab. The effect of the delay which would be occasioned by setting aside the judgment and whether or not such would result in substantial injury to the judgment creditor (Hughes) was not stressed in the court below by the parties and, indeed, no evidence was introduced by the movants on that factor.

As in the case of Ward v. Cook United, Inc., 521 S.W.2d 461, 471[12] (Mo.App.1975) the prejudice to the judgment creditor, Hughes, which would result from vacating her judgment, is obvious. She fully pursued her substantive rights and remedies, proved her case, and neither she nor her counsel is charged with any improper conduct. Under such conditions, this Court in Ward v. Cook, supra, held that the defendant’s claim of no prejudice to the plaintiff is “completely dependent upon a convincing showing of the first two grounds and would not, standing alone, ordinarily justify the exercise of judicial discretion to set aside the default judgment”. (1. c. 471). Such rule is applicable here.

The principal focus in this appeal, therefore, rests upon the evidence and law, relating to the Court’s conclusion that the defendants failed to make a substantial showing that they had a reasonable excuse for their default and had demonstrated reasonable diligence to prevent the default.

As previously noted, the suit papers in the Hughes case were turned over by defendant Williams to Hobbs, a regular office employee of Consolidated, part of whose duties were to transmit all such suit papers to the counsel for Consolidated for defense. What Hobbs did or did not do with the Hughes papers was not shown. But the fact remains that the Hughes suit was not answered and the default resulted. Only two reasonable conclusions can be reached from this record; either Hobbs lost, misplaced or forgot to perform his duty in regard to them, or he did, in fact, transmit such papers to counsel for defense and counsel neglected to respond on behalf of the defendants. In either event, Hobbs in the first instance and counsel in the second were acting or failing to act in the capacity of agents and alter ego of the defendants, and their neglect was imputable to the defendants.

In Distefano v. K. C. Southern Railway Co., 501 S.W.2d 551 (Mo.App.1973) the suit papers were transmitted to the Assistant General Counsel, a regular employee of the railroad, for evaluation and decision as to whether the railroad would defend the suit on behalf of an employee charged with negligence in the case. Having concluded that such defense would be accorded the employee, the papers were transmitted to the chief clerk in the office for forwarding to the railroad’s local counsel for defense. This employee placed them in a drawer, forgot about them, and a default judgment resulted.

In an attempt to set aside the default, the defendants in the case argued that good cause for setting aside the judgment had been shown by their justifiable reliance upon a “third party” to engage counsel to defend, which the “third party” failed to do. In response to this argument, this court stated (1. c. 553[2]):

“* * * The house counsel and chief clerk of the appellants were not third parties, however, but their agents and alter ego with whose lack of diligence and ordinary prudence appellants are chargeable. * * * ”

This Court concluded in Distefano that (1. c. 553[3]):

“Appellants have failed to show good cause. Their default was the result of neither misadventure nor mistake, but of an unmitigated negligence. * * *”

This ruling was followed in Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975) where suit papers were timely transmitted by the defendant to its insurance carrier in order to secure defense of the case. The Claims Manager, agent and attorney reviewed the paper, but through “inadvertent error in routing” they were mingled with the work assignments of a claims adjuster and a default judgment resulted. The court stated, 1. c. 472[14]:

“Such facts, without more, clearly establish a lack of diligence and ordinary prudence on the part of Harlan (the Claims Manager, agent and attorney), a responsible official of Zurich (the insurance carrier) * * *” (material in parenthesis added)

It was held in Ward that the acts of Harlan did not constitute good cause for the default but constituted “inexcusable neglect” within the applicable rule, and that the trial court properly refused to vacate the default.

If the second permissible conclusion is considered, namely, that Hobbs did in fact timely transmit the Hughes suit papers to the company’s regular counsel, then the defendants have not met their burden of proof that such counsel had “reasonable excuse” for the default or exercised “reasonable diligence” in the defense. It is the general rule in Missouri that the neglect of a lawyer resulting in a default judgment is imputable to his client. Whitledge v. Anderson Air Activities, supra (1. c. 116[4]); Ward v. Cook United, Inc., supra (1. c. 472[15]) and cases cited therein.

The conclusion is inevitable, upon this record, that whether the neglect resulting in the default was that of Hobbs, the office employee, or of company counsel, such neglect was imputable to the defendants and there was a complete failure of proof that it was excusable. Each of the authorities cited and relied upon by the appellants have been carefully reviewed and none are at war with the general principles herein stated. Those that reach different results are clearly distinguishable upon the facts in those cases (such as Whitledge, as discussed in Ward) and are not controlling here. The governing principles of law must be applied to the facts and circumstances of each case. When this is done in the case now before this Court, it is concluded that no abuse of discretion by the trial court appears and the motion to vacate the judgment was properly overruled.

Accordingly, the judgment below is affirmed and the judgment entered in the original proceeding in favor of respondent and against appellants on February 2, 1978 remains in full force and effect as of the date of its entry.

All concur.


author: ' KENNEDY, Judge.

text:
    Ellis EATON, Jr., Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. KCD 30238.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    As Modified on Courts’ Own Motion Oct. 1, 1979.

      Robert G. Duncan, Kansas City, for plaintiff-appellant.
    John Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for defendant-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   ' KENNEDY, Judge.

Following an evidentiary hearing, the trial court denied to appellant Ellis Eaton, Jr., a writ of error coram nobis by which he sought to set aside a 1971 judgment of conviction for burglary and stealing in the Circuit Court of Platte County. We reject the appeal and affirm the trial court’s order denying the writ.

Appellant alleges three errors in the original trial which he says entitle him to the issuance of the writ. They are, in the language of his brief in this court: 1. That appellant was deprived of Due Process of Law because of the misconduct of juror Schumacher in conversing privately with the complaining witness, and in the trial court’s failure to hold an immediate and adequate hearing to determine the subject of the conversation and the prejudicial effect thereof; 2. That appellant was deprived of a fair and lawful trial and Due Process of Law because of the misconduct of juror Schumacher in failing to acknowledge, when asked on voir dire, his acquaintanceship with Billy Rule, the complaining witness; and 3. That the trial court was without jurisdiction to try the appellant by information, that the preliminary hearing was delayed 43 days from the date of charge and arrest, during which time an alibi witness died.

The writ of error coram nobis is available to one in defendant’s position, who has completed his sentence and therefore cannot avail himself of the procedure afforded by Supreme Court Rule 27.26, yet suffers disadvantage by reason of the conviction. United States v. Morgan, 346 U.S. 502, 510, 74 S.Ct. 247, 98 L.Ed. 248 (1954); State v. Stodulski, 298 S.W.2d 420, 422-423 (Mo.1957); Arnold v. State, 552 S.W.2d 286, 290-291 (Mo.App.1977). Indeed the writ is commensurate with the remedy of Rule 27.-26, with the difference that the latter is available only to one who is incarcerated. Hindman v. Crouch, 560 S.W.2d 874, 875 (Mo. banc 1978); Laster v. State, 461 S.W.2d 839 (Mo.1971); State v. Stodulski, supra. Should the conviction be found to have been invalid, the writ would set it aside.

The writ of error coram nobis remedy is subject to the following qualifications, among others: If an alleged infirmity in the conviction sought to be set aside, or in the proceeding leading to it, was decided by the convicting court in that proceeding or by the appellate court upon appeal, then the same issue will not be considered as a ground for issuance of the writ of error coram nobis. The writ issues to afford relief where some fact outside the record, perhaps unknown to the court, but at least overlooked and not decided, would if known and decided have prevented the judgment. State v. Smith, 324 S.W.2d 707, 711 (Mo.1959), overruled on other grounds, State v. Keeble, 427 S.W.2d 404, 407-8 (Mo.1968); Arnold v. State, 552 S.W.2d at 291.

Now, in the present case, two of the applicant’s ■ claims of trial error, for which he says the trial court should have set aside the conviction upon his application for the writ, were squarely presented in the original case, both in the trial court and in the Missouri Supreme Court on appeal. Those two claims — the claim of juror misconduct in juror Schumacher’s conversation with prosecuting witness Billy D. Rule, and the claim of undue delay of preliminary hearing after arrest and charge — were presented to the trial court in his motion for a new trial, and to the Supreme Court of Missouri on appeal. They were decided adversely to defendant. State v. Eaton, 504 S.W.2d 12 (Mo.1973). It is not the office of the writ of error coram nobis to give defendant another review of those claims. Sweazea v. State, 515 S.W.2d 499, 501 (Mo. banc 1974); Selman v. State, 454 S.W.2d 530, 532 (Mo.1970); Colbart v. State, 451 S.W.2d 601, 602-3 (Mo.1970); State v. Durham, 416 S.W.2d 79, 84 (Mo.1967). For that reason, these two claims will not be considered. The improper juror-witness contact point has also been held in this state to be a matter of mere trial error which furnishes no ground for Rule 27.26 relief. Milentz v. State, 545 S.W.2d 688, 690 (Mo.App.1977), and cases cited therein.

Appellant says that his speedy trial claim should be reconsidered in the present proceeding, because a new constitutional principle was announced by the Supreme Court of the United States in Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), after State v. Eaton, supra, was decided. Endres v. State, 549 S.W.2d 582 (Mo.App.1977), holds that where a new constitutional principle, which would have aided the defendant, is announced after the appeal of his conviction has been decided, that point — though it was considered and decided adversely to defendant upon the appeal — may be reconsidered upon a Rule 27.26 motion. We do not see that Dillingham aids defendant, for that case holds only that the speedy trial meter commences to run with the arrest of the defendant rather than, as the lower courts had held, with his indictment.

The third allegation of error in the original trial is the misconduct of juror Schu-macher in failing to acknowledge an acquaintance with Billy D. Rule, the complaining witness, when the panel was asked in voir dire examination if any of them were acquainted with Mr. Rule. This was not presented in the defendant’s motion for a new trial in the original case, nor was it decided on appeal.

The court in the coram nobis hearing made no findings of fact and conclusions of law. This omission in many Rule 27.26 cases has required reversal and remand. State v. Herron, 376 S.W.2d 192 (Mo.1964), and Herron v. State, 498 S.W.2d 530 (Mo.1973); State v. McCullough, 493 S.W.2d 353 (Mo.App.1973) and McCullough v. State, 507 S.W.2d 428 (Mo.App.1974).

Reversal and remand are not required in this case, however, for we may accept as true all the evidence presented on the question of the supposed concealed acquaintance, and find for ourselves that movant establishes no claim for coram nobis relief. There is no controverted fact upon which the trial court’s finding is necessary. Peterson v. State, 476 S.W.2d 608, 611 (Mo.1972); State v. King, 380 S.W.2d 370, 372-3 (Mo.1964); Achter v. State, 545 S.W.2d 83, 86 (Mo.App.1976).

On this point, the evidence on hearing of the writ application was as follows: A certain Marvin Easley, who was an uncle of the appellant and who was present at the burglary and stealing trial as a witness for appellant, testified for appellant that after the jury was selected and during the noon recess (the trial transcript shows that this was before opening statements) he saw jur- or Schumacher and Billy D. Rule, the victim of the burglary and theft, in conversation with each other for about five minutes. They were seated on a bench in the hallway of the courthouse. There were several people in the hall at the time, estimated by Easley to be ten or twelve in number, including jurors and witnesses for the defendant. The witness was not near enough to hear what juror Schumacher and Mr. Rule were saying, but he heard the name “Bob”. It was a friendly conversation. They were laughing and talking, and a part of the conversation was whispered. Rule pointed toward the jury room at one time during the conversation.

Petitioner also presented as evidence a photocopy of an undated, handwritten statement purportedly signed by juror Schumacher, which stated that “on November 22nd I saw Billy D. Rule who I later found out was the victim in the case tried that day. Billy D. Rule did not try to influence me in any way.” The text of the statement was in the handwriting of Mr. Shafer, the prosecuting attorney in the burglary-theft trial and had been secured by him after the trial.

It is true, as appellant says, that when members of the jury panel had been asked on voir dire whether they knew Billy D. Rule, none of them had responded. However, the evidence on the coram nobis hearing does not prove that juror Schumacher had previously been acquainted with Mr. Rule, even if witness Easley’s testimony about the hallway conversation between them were to be believed by the trial court.

In rural courthouses, there often are poor facilities for segregating jurors, and chance encounters between witnesses and jurors in courthouse hallways are difficult to guard against. A conversation such as this one is no proof at all of a prior acquaintance. It is agreed that the trial judge should take pains to prevent these encounters to avoid just such an incident as this.

The transcript of the trial does not show that Billy D. Rule was physically present in the courtroom and identified to the members of the jury panel when they were asked on voir dire about their acquaintance with him. Juror Schumacher’s written statement (which was admitted in evidence without objection) could very well have meant that he saw and talked with a person who he later learned was Billy D. Rule.

Neither Rule nor juror Schumacher testified on the coram nobis hearing, nor was their absence explained.

The evidence, we repeat, shows no previous acquaintance between juror Schu-macher and Billy D. Rule. Much less does it show prejudice of such proportions as to take the matter out of the “mere trial error” category, which furnishes no ground for Rule 27.26 relief, Rule 27.26(b)(3); Richards v. State, 495 S.W.2d 442 (Mo.1973); McCrary v. State, 529 S.W.2d 467, 471 (Mo.App.1975); Mayo v. State, 524 S.W.2d 181 (Mo.App.1975), and place it in the category of “fundamental unfairness” which would have deprived defendant of constitutional Due Process, as in United States v. McCorkle, 248 F.2d 1 (3rd Cir. 1957). Compare United States ex rel. Luzzi v. Banmiller, 248 F.2d 303 (3rd Cir. 1957), and United States v. Cavell, 287 F.2d 792 (3rd Cir. 1961). To find that a prior acquaintance existed and then that prejudice resulted, would require the indulgence of speculation. It is defendant’s burden to prove his allegations by a preponderance of the evidence.

The judgment is affirmed. Stead v. State, 543 S.W.2d 501 (Mo.App.1976).

All concur.

      . This holding regrettably places us at odds with the U. S. Circuit Court of Appeals for the. Eighth Circuit. In Eaton v. Wyrick, 528 F.2d 477, 481 (1975), that court said:
      “An evidentiary hearing will be required to resolve this issue. While appellant has arguably presented his claim of juror misconduct to the Supreme Court of Missouri, we think the circumstances are such that a collateral proceeding would be permitted by the state in order to comply with the requirements of Remmer v. United States, supra, [347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654] although we normally will determine those issues which have been exhausted in the state courts ... we think in the unusual circumstances of this case the state courts should be accorded an opportunity to conduct an evidentiary hearing under Rule 27.26, thus permitting a record to be made which can be reviewed under 28 U.S.C § 2254(d), and avoiding piecemeal litigation of petitioner’s claims.”
      The court further said, with respect to the allegation of the prejudicial delay in holding the preliminary hearing:
      “In his petition, Eaton contends that the state magistrate postponed his preliminary hearing for 43 days during which time an important witness for the defense died. Only the fact of delay was raised by petitioner in his direct appeal to the Missouri Supreme Court, which held that he had ‘failed to demonstrate wherein he was prejudiced by the delay’. State v. Eaton, supra, 504 S.W.2d at 20. While the death of the witness and resulting prejudice to petitioner had been alleged in a motion for new trial, these allegations were not presented to the Missouri Supreme Court on direct appeal and it thus did not have before it for review the same issue which was presented to the District Court; nor was there a factual record from which the Missouri Supreme Court could have reviewed this claim on the merits. The requirement of exhaustion was therefore not satisfied.”

      . Although the evidence is the same on both points, and the same persons involved, juror Schumacher and witness Rule, we point out that the focus here is upon the concealed acquaintance on voir dire, not upon the impropriety of the conversation. The latter is a different point and one which we have shown was decided in State v. Eaton, supra, and is not being considered here on its merits.


author: PRITCHARD, Judge.

text:
    Michael D. MYERS, Respondent, v. Mary D. MYERS, Appellant.
    No. WD 30258.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    James F. Booth, Clayton, for appellant.
    James E. Kelley, Jr., Kansas City, for respondent; Smith, Gill, Fisher & Butts, Kansas City, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

In this dissolution of marriage proceedings, appellant contends: (1) That the trial court erred in dividing marital property equally because it did not take into account properly the economic circumstances of the spouses, the value of the property set aside, and the conduct of the parties during the marriage, all of which constituted a breach of discretion; (2) That the trial court erred in failing to award maintenance to appellant; (3) That the trial court erred in awarding $140.00 per month child support for each of the two minor children, considering their needs and respondent’s ability to pay, because it was too low; and (4) That the trial court erred in awarding appellant only one-half ($525.25) of her attorney fees for those services in the trial.

The parties were married December 30, 1967, and separated October 11, 1977. Two female children were born of the marriage, aged nine and eight years at the time of trial.

After deductions for income and social security taxes, respondent had take-home pay of $1,811.00 per month, his gross earnings being $2,550.00 per month. Additional deductions for business expenses (car rental, insurance, motels, oil, gasoline, maintenance of car, parking, dealer meals, office supplies, telephone and miscellaneous) to-talled $814.00 per month. These unreim-bursed deductions resulted in $1,743.52 income tax refund for 1977, which averages $145.30 per month. These deductions and additions (tax refund) cause respondent’s net income to be $1,142.30 per month. After deduction of the allowed child support payments, respondent’s disposable income was about $862.30 per month. From this amount must be deducted respondent’s estimated personal expenses (on his affidavit filed in the dissolution proceedings) of about $745.00 per month. This would leave him about $127.00 per month above all financial outlays.

Appellant was a secretary earning a net income after taxes of about $446.77 per month. Although presumably the child support of $280.00 per month would be used primarily for the benefit of the children, some portion thereof would obviously enure to appellant’s benefit, as, for instance, a proportionate share of housing costs, as might be attributable to the children. Appellant was thirty-four years of age at the time of trial, and she then had the custody of the children. She was not then experiencing any medical or physical disabilities.

The residence of the parties was worth $31,000.00 according to respondent and $40,000.00 according to appellant. It was encumbered at $26,600.00. It was ordered sold and that the net sale proceeds be divided between the parties. $4,131.00 cash was also ordered divided equally. A 1970 Ford Torino, valued at $750.00 to $900.00, according to each party, was set off to appellant. Certain household goods were set off to each party, the value thereof not being determined (in his verified statement, respondent set the total value at $2,000.00), but the majority thereof was set off to appellant. Debts totalling $3,228.00 of the parties were ordered paid by respondent, and appellant’s debts owed by her to members of her family and aggregating about $1,300.00 were ordered paid by her. At lesser figures, appellant would receive about $5,015.00 cash (less her own debts), plus her household goods, and respondent would receive about $1,787.50 cash (after his payment of all debts), and his smaller share of the household goods. It thus appears that of these meager belongings, appellant was to receive the larger share. Appellant argues that she should have been awarded the family home in which to raise the children, rather than it being ordered sold and the equity divided. Her testimony was equivocal as to whether she desired the home as a residence; she was currently living in St. Louis where her parents resided and she had no intention of moving back to Kansas City where the home was located. She also first testified that she wanted the home sold and the equity divided equally, but recanted on redirect examination where she testified that she wanted possession of the home. Appellant further argues respondent’s misconduct in striking her on occasions during the ten year marriage. Although marital misconduct is a factor it is by no means binding upon the trial court, especially when the dissolution affects a marriage of long standing. See In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). And the relatively minor misconduct here does not rise to a level justifying an unequal division of property, as it did in In re Marriage of Cornell, 550 S.W.2d 823, 827 (Mo.App.1977), where it was said that extra-marital activities were a major factor in the shipwreck of the long marriage upon the rock of dissolution. Under all of these circumstances, the trial court did not abuse its discretion in dividing the property, it not being unduly weighted in favor of one party. In re Marriage of Schulte, 546 S.W.2d 41, 47 (Mo.App.1977).

Appellant’s second contention is that the trial court erroneously failed to award her maintenance. The record of appellant’s testimony is that she requested $100.00 a month for 24 months in the event she was not awarded the marital home, which as noted was ordered sold and the net proceeds divided equally. In her statement of expenses for herself and the children, filed in the dissolution proceedings, appellant listed a total of about $1,027.00. With her own monthly net earnings, $446.77, and the child support, $280.00, she is presumably short $300.23. With respondent’s surplus funds above all his expenses, it is obvious that he cannot meet this deficit. The mat-tér turns upon respondent’s ability to pay, as measured against appellant’s asserted needs. In re Marriage of C_ S_ B_, 546 S.W.2d 186, 188 (Mo.App.1976); Brown v. Brown, 537 S.W.2d 434 (Mo.App.1976). Upon this record, the trial court did not abuse its discretion in refusing to allow appellant maintenance. § 452.335 2.(6) RSMo 1978.

As to the contention of insufficiency of the $280.00 per month child support, it suffices to say that in addition to the lack of surplus funds of respondent, the award was well above the guidelines therefor under Mo. Bar CLE, Missouri Family Law, 2d Ed., 1978, § 7.20, for respondent’s net income. Above the child support awarded, respondent was ordered to keep in force life insurance policies and medical and health insurance (the amount of premiums was not shown) for the benefit of the children until they individually reach age 21, or until they are earlier emancipated.

The last contention is that the trial court erred in awarding appellant only one-half of her attorney fees to be paid by respondent. The above general recitation of the facts of the parties’ financial condition answers the contention with respect to respondent’s ability to pay. Some suggestion is made in appellant’s brief that appellant be allowed her attorney fees on this appeal, but that matter need not be considered because this court is without jurisdiction to award those fees initially. That is a matter for the trial court to rule, Webb v. Webb, 475 S.W.2d 134, 136[4, 5] (Mo.App.1971); Nelson v. Nelson, 516 S.W.2d 574 (Mo.App.1974); Cascio v. Cascio, 485 S.W.2d 857 (Mo.App.1972).

The judgment is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    SUMMIT LUMBER COMPANY, INC., Respondent, v. John W. HIGGINBOTHAM et al., Appellants.
    No. 30380.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.

      Milton B. Edmonson, Greenwood, for appellants.
    Richard J. Koury, II, Independence, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Action to recover for building materials supplied to residential builder and to enforce a mechanic’s lien on the property involved. Trial court entered judgment for plaintiff for amount claimed, $5,302.66, plus interest, and declared that amount a lien against the property. Property owners appeal. An earlier appeal in the same case had been dismissed because of the lack of a final judgment. Summit Lumber Company, Inc. v. Higginbotham et al., 570 S.W.2d 323 (Mo.App.1978).

John W. Higginbotham was the owner of Lot 136, White Ridge Farm subdivision, Lee’s Summit, Missouri. In late 1971, Hig-ginbotham arranged with Keith. North, president of the Summit Lumber Company, Inc., for Summit to provide the lumber to be used by Higginbotham in constructing a residence on the lot. According to North, he talked to Higginbotham “ * * * and quoted him some figures as far as price per thousand feet of lumber and a few other odds and ends and, subsequently, he gave us the order for the lumber.” He did not give Higginbotham a lump sum figure. Invoices were prepared as delivery of materials was made, the first in November, 1971, and the last in April, 1972. Higginbotham paid for none of the materials supplied by Summit.

In June or July, 1972, John D. Mahan, .Jr. and his wife, Joan, saw an advertisement for sale of the house built by Higginbot-ham. They were shown the house by a realtor and agreed to purchase it. The transaction was closed by a warranty deed from Higginbotham to the Mahans, dated August 25, 1972. Higginbotham gave a “mechanic’s lien” affidavit on the closing.

On October 18, 1972, Summit filed its mechanic’s lien, prepared by a Kansas attorney. The notice recited that it was filed on account for “materials furnished by [Summit] under one entire general contract with [Higginbotham].” The account was stated as follows:

“Date of First Delivery: November 10, 1971
Date of Last Delivery: April 24, 1972
Total Amount Due: $5,302.66
Lumber & building materials as ordered by John Wendell Higginbotham including nails, studs, rough cedar, trim, base, locks, masonite, doors, closet poles, window units delivered to Lot 136, WHITE RIDGE FARM.”

Suit to enforce the lien was subsequently filed. At the trial, defendants Mahan objected that the account stated in the lien notice was not a “true and just account required by Chapter 429, RSMo * * Their motion to dismiss on that ground was overruled. Judgment was entered for plaintiff for the amount sued for against Higginbotham and that amount was declared a lien against the property. The Mahans appeal.

In this court, appellants renew their complaint that the notice of lien filed by Summit was not a valid lien statement.

Section 429.080, RSMo 1978, requires a mechanic’s lien statement to include “a just and true account of the demand due him or them after all just credits have been given, * * “A substantial compliance with that requirement is a condition precedent to the right of a lien claimant to maintain his action and to fix a lien upon the property.” Putnam v. Heathman, 367 S.W.2d 823, 828[6] (Mo.App.1963).

“The reason the ‘just and true account’ is required is stated in Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291[2] (Mo.App.1962) to be:

‘so that the landowners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building; whether they were lienable items, and whether the amount charged is proper. Grace v. Nesbitt et al., 109 Mo. 9, 18 S.W. 1118; State ex rel. O’Malley v. Reynolds, 266 Mo. 595, 182 S.W. 743.’ ” Bernard v. Merrick, 549 S.W.2d 561, 563 (Mo.App.1977).

Obviously, the lien statement in this case provided no basis for an investigation as to whether the materials went into the house, whether they were lienable items or whether the amount charged was proper. In Bernard, the account was “as per attached bills, incorporated herein and made a part hereof, the unpaid balance of which totals $11,-756.04.” 549 S.W.2d at 562. The attached bills showed merely an invoice number, the date and amount of the invoice, with a running balance. The account was held insufficient because it contained no information concerning the nature of the material sold and furnished. Here the account does state generally the nature of the material but the information would be wholly inadequate to provide the basis for a third party to investigate the use of the materials and the propriety of the charge therefor.

Cases point out that the requirement of a “just and true account” calls for “a fairly itemized account, showing what the materials are, and the work that was done, and the price charged, * * Rude v. Mitchell, 97 Mo. 365, 373, 11 S.W. 225, 227 (1889). See also Springfield Planing Mill, Lumber and Construction Co. v. Krebs, 196 Mo.App. 432, 193 S.W. 621, 622-623[1-3] (1917). The account filed in this case is wholly lacking in itemization.

Respondent invokes the rule calling for liberal construction of the mechanic’s lien law, citing Bremer v. Mohr, 478 S.W.2d 14, 17 (Mo.App.1972); Kinnear Manufacturing Co. v. Myers, 452 S.W.2d 599, 602 (Mo.App.1970). However, in Putnam, the court pointed out that: “ * * * since the lien is purely a creature of statute, the policy of liberal construction does not relieve the lien claimant from the necessity of reasonably and substantially complying with the requirements of the statute in order to secure its benefits. Wadsworth Homes Inc. v. Woodridge Corporation, Mo.App., 358 S.W.2d 288. A stricter construction of the lien statutes will be maintained where the rights of third persons, as subsequent purchasers, are affected by the lien claim. Rall Bros. v. McCrary, 45 Mo.App. 365; DeWitt v. Smith, 63 Mo. 263.” 367 S.W.2d at 828.

Respondent invokes statements in Springfield Planing Mill, Lumber and Construction Co. to the effect that the lien statement is adequate “ * * * if the lien account filed is as definite and specific as the contract under which the labor or material or both were furnished.” 193 S.W. at 622. Respondent describes its contract with Higginbotham as “a continuous contract to supply the materials necessary to construct the house * * However, there was no contractual relationship between the parties except as was brought about upon the order and delivery from time to time of materials. Thus, if the language of Springfield Planing Mill, relied upon by respondent, is to be taken literally, it would require details as to each transaction. No such literal compliance is required but that case provides no authority for approval of the lien statement in this case.

Finally, respondent relies upon the “lump sum” rule which permits an original contractor with the owner under a contract to construct improvements for a fixed price to state his lien account in a lump sum. Malott Electric Co. v. Bryan Enterprises, Inc., 549 S.W.2d 558, 559 (Mo.App.1977). The answer to this contention is that there was no fixed price contract between respondent and Higginbotham. The fact that the contractor was also the owner does not permit reliance on the “lump sum” rule. H. B. Deal & Co. Inc. v. Hamilton-Brown Shoe Co. et al., 349 Mo. 275, 160 S.W.2d 719, 721[1, 2] (1942).

The lien statement in this case did not contain a “true and just account,” required by Section 429.080. The trial court should have sustained appellants’ motion to dismiss.

Reversed and remanded with directions to sustain the motion to dismiss by appellants and to enter judgment in their favor.

All concur.


author: DIXON, Presiding Judge.

text:
    MASCOM MANAGEMENT, INC., Petitioner-Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, State of Missouri, et al., Division of Employment Security, State of Missouri, et al., Respondents.
    No. KCD30288.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.

      Francis L. Kenney, III, Clayton, for petitioner-appellant.
    Rick V. Morris, Larry R. Ruhmann, Jefferson City, for Division of Employment Sec.
    D. J. Chatfield, Jefferson City, for Labor and Industrial Relations Commission.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

Mascom Management, Inc., appeals from a decision of the Circuit Court of Cole County affirming a finding and decision of the Labor and Industrial Relations Commission that Mascom is the successor to Washington and Twelfth Corporation (Washington and Twelfth) and, therefore, liable for all delinquent employer contributions and future contributions at the rate which Washington and Twelfth was scheduled to pay pursuant to § 288.110 RSMo 1969.

The evidence presenting the factual basis for the appeal is without dispute. Mascom operates property under leases and other arrangements nationwide. Since June 25, 1976, it has operated premises known as the Downtowner Motor Inn pursuant to a lease executed on July 13,1976, with U. S. Realty Investment, the fee owner of the premises.

Prior to Mascom leasing the premises, the owner, U. S. Realty, had leased the Down-towner Motor Inn to Washington and Twelfth. There had been financial problems resulting in a delinquency of rental payments to U. S. Realty from Washington and Twelfth. In February of 1976, a notice of default was sent to Washington and Twelfth by U. S. Realty and a surrender of the premises was achieved on June 25, 1976. This surrender by Washington and Twelfth was not only of the lease but also personal property — apparently furniture and beds.

Mascom took over possession of the Downtowner Motor Inn on June 25, 1976. The hotel itself remained open during this change of management period, but it was necessary for Mascom to expend money for what are described as “soft goods,” pillows, towels, and blankets, in order to keep the premises operating. None of this was purchased from the prior lessee, Washington and Twelfth. The bar and lounge were shut down while Mascom obtained a new liquor license. Some forty (40) employees of Washington and Twelfth were hired by Mascom beginning June 26, but they were not paid by Mascom for work performed by them prior to that date. These employees were apparently never paid for the work prior to Mascom’s commencement of operation. It is agreed by all parties that Mas-com did not have any contact or connection with the prior lessee, Washington and Twelfth, Mascom never negotiated or contracted with them, did not assume any of the accounts payable of Washington and Twelfth, did not take any assignment of accounts receivable by them, nor did Mas-com assume any of the liabilities of the Washington and Twelfth Corporation. In addition, the evidence demonstrates that a claim was filed by a sublessee of Washington and Twelfth against Mascom. Mas-com pursued all available remedies to oust the sublessee from possession of the premises.

In connection with the leasing of the premises, Mascom hired as its comptroller for the hotel, David Paschal, who had been the comptroller for the prior lessee, Washington and Twelfth. Paschal, on July 26, 1976, executed on behalf of Mascom form MODES-2699 entitled “Report on Employment Experience.” Item 10 of the form and the answers included by Paschal read as follows:

If you acquired a business or part of a business since January 1, 1976, enter the date acquired 6/25/76 and show the name and address of predecessor Washington and Twelfth Corporation, 070244-2-096-7011,1133 Washington. St. Louis. Missouri 63101. (A) Did you continue without interruption substantially all business activities of your predecessor in Missouri. Yes

Paschal testified that at the time he filled in the form he did not discuss the information with anyone from Mascom nor was he aware of the terms of its lease with U. S. Realty.

On September 10, 1976, Mascom received notice of liability and transfer of predecessor’s account to successor from the Division of Employment Security, State of Missouri. Mascom requested a reconsideration of this determination or, alternatively, a hearing before the Appeals Tribunal of the Division. Reconsideration was denied, and the appeal was heard by the referee on January 25, 1977. On March 15, 1977, the Appeals Tribunal held Mascom was the successor of Washington and Twelfth under § 288.110 RSMo 1969. This statute provides in pertinent part:

“Any individual, type of organization or employing unit which has acquired substantially all of the business of an employer, excepting in any such case any assets retained by such employer incident to the liquidation of his obligations, and in respect to which the division finds that immediately after such change such business of the predecessor employer is continued without interruption solely by the successor, shall stand in the position of such predecessor employer in all respects, including the predecessor’s separate account, actual contribution and benefit experience, annual payrolls, and liability for current or delinquent contributions, interest and penalties. . . . ”

An application to the Division for review of the decision of the Appeals Tribunal was denied on September 23, 1977. The Labor and Industrial Relations Commission affirmed the Appeals Tribunal. The circuit court affirmed the decision from which circuit court order Mascom makes this timely appeal.

The scope of review by this court must first be noted. When there is no dispute in the evidence concerning the facts and the issue is the construction and application of the statute to the virtually uncon-troverted facts, the issue is one of law. Chief Freight Lines Co. v. Industrial Commission, 366 S.W.2d 48, 51 (Mo.App.1963). If the decision of the Industrial Commission rests upon an erroneous conclusion of law, this court is not bound by the decision below but should reverse. Belle State Bank v. Industrial Commission, 547 S.W.2d 841, 844 (Mo.App.1977).

Section 288.110 RSMo 1978, the relevant portions of which are set forth above, was amended by the Laws of 1951, p. 564, et seq. That amendment removed from the statute the language relating to substantially all the assets and substituted the language substantially all the business. This amendment undoubtedly was a reaction by the legislature to difficulties in the interpretation of the prior language which arose when, in the course of the transfer, substantial assets were withheld from the transfer, but the business entity continued.

Thus, before addressing the contentions of the parties, it is appropriate to undertake some review of the cases interpreting the statute since the 1951 amendment. In Union-May-Stern Company v. Industrial Commission, 273 S.W.2d 766 (Mo.App.1954), the court held that the evidence supported a finding that “substantially all of the business” of the predecessor had been acquired by a successor, even though the predecessor had retained the major portion measured by value of its assets. Upon that basis, the predecessor company was determined to be a new employer in the management and liquidation of the assets retained and, as a consequence, charged the higher rate of contribution. Important to the decision in Union-May-Stern was the acquisition by the successor of the assets necessary to continue the “business” of the predecessor. The assets retained by the predecessor were accounts receivable, cash, stocks and bonds, the predecessor operating no part of the previous business of selling home furnishings but primarily operating to liquidate the accounts receivable. The Industrial Commission in the instant case urges that Union-May-Stern stands for the proposition that the “statute speaks of acquiring business and not assets.” That proposition is much too broad. The Union-May-Stem case, in the context of the facts presented, holds that the acquisition of a “going business” and the assets necessary to continue the business gives rise to the successorship of the acquiring entity under § 288.110 RSMo 1978.

Two other cases bear on the resolution of the issue here presented. In Chief Freight Lines v. Industrial Commission, supra, the court was confronted with the claim by Chief Freight Lines that it was not a successor. The basis for the contention was that Chief Freight Lines had leased the permits and equipment of another truck line, operated it for some period of time, and then did not exercise an option to purchase because the application for a permanent authority as a common carrier was denied by the regulatory agency. Chief Freight Lines urged that they had not “acquired” the business of the predecessor. The court determined that Chief Freight Lines had acquired the “business” and was the successor. The court’s rationale was that despite the “lease” format of the transaction the Chief Freight Line was the “beneficial owner” of the “business” with possession of all its assets and the unrestricted right to manage and control the business, hiring and firing employees, paying its debts, and retaining all revenues. The court in Chief Freight Lines did assert that “acquire” as used in the statute was a word of broad meaning and was not limited to acquisition of title. The rationale of the case, however, is that Chief had assumed the burdens and received all the benefits arising from the business of the predecessor.

The word acquire was also considered in the context of its use in § 288.110 by the Supreme Court of Missouri in KSD/KSD-TV Inc. v. Labor and Industrial Relations, 562 S.W.2d 346 (Mo. banc 1978). The court held that KSD/KSD-TV, a wholly owned subsidiary of Pulitzer Publishing became the successor to Pulitzer when it continued to operate in the corporate form a portion of the “business” of Pulitzer prior to the creation of the subsidiary, the remainder of the “business” being a continuation by Pulitzer of its prior activities.

The court pointed out that the parties were agreed that the transaction did not come within the meaning of the first sentence of § 288.110 since KSD/KSD-TV did not acquire substantially all of the business of Pulitzer. Under the second sentence of § 288.110, the Commission argued that Pulitzer did not “acquire” from anyone the publishing portion of the business and, therefore, there were not two entities which had “acquired” the business of a single entity. Conceding that a literal interpretation would require the Commission’s position to be adopted, the court nonetheless held KSD/KSD-TV was a “successor.” In so holding, the court looked to the relationships existing before the creation of the subsidiary and to those existing thereafter concluding that the only reasonable result was to find in favor of KSD/KSD-TV being a successor.

Upon the basis of the authority discussed above, the difficult issue in the instant case is to apply the language of § 288.110 to the conceded facts in this case.

Chief Freight Lines, supra, and Union-May-Stern, supra, recognize that it was the intent of the legislature to provide a different standard for the determination of suc-cessorship under the 1951 amendment of § 288.110. The legislative intent as expressed in the rationale of those cases was to avoid a mechanical application of the statute based upon the technicality of the manner of acquisition of the assets transferred. KSD/KSD-TV recognizes that the nature of the assets retained or transferred and the manner of acquisition will be considered in a realistic way so as not to produce an unreasonable result. The cited cases find a legislative intent to make the question of successorship turn upon the actuality of a transfer of benefits and burdens of a prior business operation so that the successorship provisions of the statute as to accounts, delinquencies, and rates will be applied equitably under all the circumstances of each case.

Thus, in Chief Freight Lines, the court addressed the meaning of the word “acquired” in the light of the benefits to the proposed successor and the burdens that it undertook with respect to the transfer, the court finding that having acquired all the benefits and assumed all the burdens of the prior business operation, the transferee acquired, within the statutory language, the business of the transferor.

So also in Union-May-Stern, the court addressed the question of what was acquired by the transferee and considering the benefits and the burdens assumed by the transferee as being substantially those of the “business” rejected the claim of the transferor that no succession should take place. The same rationale is applied to the second sentence of the statute in KSD/KSD-TV, supra. The court there disregarded the literal meaning of the statute in order to arrive at a just and equitable result when the transferee and the trans-feror had assumed all of the benefits and burdens of the prior business enterprise by dividing into two separate entities despite the lack of any direct transfer of a portion of the business.

Such an analysis of the statutory language is particularly appropriate when the statute is considered in the light of its purposes. On the one hand, the statute protects the basic integrity of the employment security system by providing a means .of collection of delinquent accounts when the business enterprise is ongoing and the benefits and burdens have been assumed by another. So likewise, when the shoe is on the other foot and the transferee is asserting a right to the lower rate established by the transferor, if the transferee has assumed the benefits and burdens of the prior operation in whatever form and however conveyed, it is equitable and in furtherance of the statutory purpose to stabilize conditions of employment to permit the transferee to obtain the lower rate of contribution and any value in the predecessor’s account. This is done for the reason that the whole purpose of the system is to provide continuity and- stability of employment. The incentive to a transferee, to continue uninterrupted and without decrease in employment the enterprise transferred, is the expectation of the lowered rate of contribution. Put another way, interpretation of the statute which emphasizes the necessity for stability in employment and the protection of the State’s interest in collection of delinquent accounts, and which is based upon a realistic appraisal of the business situation, accomplishes the basic legislative goals.

Turning now to the contentions of the parties, it is the contention of Mascom that it is not a successor within the meaning of the statute because it did not acquire any assets from Washington and Twelfth, did not assume any burdens of the operation, and did not derive any benefits from Washington and Twelfth. The most that can be said to the contrary is that Mascom operated a similar business in the same premises. The Commission, on the other hand, argues that the “business” of Wash-mgton and Twelfth was the operation of a hotel business at the described location. This, the Industrial Commission contends, was “acquired” and continued by Mascom without interruption. Therefore, Mascom is a “successor” under the statute and liable for both the rate imposed on Washington and Twelfth as well as the existing deficiency.

To bolster this argument, the Industrial Commission cites Chief Freight Lines, supra, particularly the definitional language of acquire, “to gain by any means . to get as one’s own.” The Industrial Commission then asserts that Union-May-Stern, in its definition of “substantially all the business,” eliminated any consideration of the transfer of assets in determining whether there was an acquisition of “substantially all of the business.”

What has been heretofore stated with respect to the analysis of Chief Freight Lines and Union-May-Stern refutes this argument of the Commission. When the transfer of the benefits and burdens of the prior operation is considered, Mascom received absolutely no benefit from the prior operation by way of assets, either tangible or intangible. The only physical assets used in the continuation of the business were freshly acquired from third parties. A new lease arrangement between the landlord and the successor company is admitted. Whatever benefits arise from the new operation result from the infusion of these new assets and the assumption by the successor of burdens that were not those of the predecessor but independent obligations not acquired from the predecessor. The burden of the lease held by the predecessor has been extinguished by operation of law and, absent the new enterprise of the successor, the prior operation was at a complete end.

Put in terms of the underlying purposes of the statute, at the point when the léase had been terminated and the operation for all practical purposes of Washington and Twelfth stopped, the state had no right to look to anyone for the collection of its delinquent account except Washington and Twelfth. Likewise, absent an assumption of the burdens of that operation and the prospective benefits, no one could have claimed the right to a favorable rate had one existed. What has occurred in the instant case is that a new enterprise has been undertaken with fresh assets to operate a similar business in the same location. This has had the effect of continuing the employment of the employees of the old enterprise, but that salutary end should not be burdened by saddling the new enterprise with the debts of the old enterprise. It is obvious from the factual background of this case that if a new entrepreneur entering the picture was concerned that a deficiency would be imposed, it would be relatively simple to defeat the claim of the state by interrupting the operation so as to avoid there being a continuous operation. The only losers in that situation would be the employees, whose employment would be lost, and the Industrial Commission due to benefits for unemployment that would accrue to those employees. Realistically viewed and giving the statute a reasonable construction, it must be held as a matter of law that upon these facts Mascom did not acquire the business of Washington and Twelfth.

The judgment of the circuit court is reversed; the cause is remanded to the circuit court with directions to remand the case to the Industrial Relations Commission with directions to enter an order that appellant Mascom Management, Inc., is not a successor to the Washington and Twelfth Corporation within the meaning of § 288.110 RSMo 1978.

All concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. Ozell JOHNSON, Appellant.
    No. 39776.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 4, 1979.
    Charles E. Kirksey, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Defendant was convicted of carrying a concealed weapon. On appeal, he cites as reversible error: (1) permitting the prosecutor to cross-examine a defense witness anent prior arrests; (2) comments of the trial court directed to defense counsel; (3) the procedure by which the initial trial judge, after being disqualified, transferred the case to another judge. We affirm.

In response to a police radio broadcast about a robbery and kidnapping, St. Louis Police Officer Robert Bartram proceeded to the street on which defendant resided. Approaching defendant’s residence, Officer Bartram observed an auto which had been described in the police broadcast and followed it. The auto stopped across the street from defendant’s residence, and its three occupants, including defendant, began to alight. Officer Bartram stopped immediately behind the auto in which defendant was a passenger, drew his revolver and confronted him, announcing his identity as a police officer. Officer Bartram testified that as the defendant was getting out of the auto, he reached under his sweater and produced a pistol which had been concealed from view. The officer ordered defendant to drop the gun which was promptly done. Defendant was then arrested and his loaded automatic pistol was retrieved to be placed in evidence as an exhibit.

At trial, defendant relied on three witness — his wife, a next door neighbor, both observing the episode from across the street, and Walter Parker, a passenger in the auto with him. Each of the three witnesses testified they had not seen the defendant draw a gun from under his sweater.

Defendant’s first point on appeál concerns the following prosecutor’s cross-examination of defense witness Walter Parker as to prior arrests:

Q. [Prosecutor] Have you ever been convicted of a felony?
A. [Walter Parker] No, sir, have no record.
Q. You say you have no record?
A. No record.
Q. That mean you’ve never been arrested?
A. No, sir.
Q. Never?
A. Well, for_
MR. KIRKSEY [Defense Counsel]: I’m going to object to that your Honor.
A. -for loitering.

The court overruled the objection stating that Walter Parker had opened himself to impeachment by prior arrests by responding that he had “no record”. The State then questioned Mr. Parker about three arrests which were denied.

Defendant is correct in asserting that as a general rule it is impermissible to impeach the credibility of a witness by inquiry into prior arrests. State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979); State v. Pulis, 579 S.W.2d 395 (Mo.App.1979); State v. Massa, 512 S.W.2d 912 (Mo.App.1974). However, where a witness attempts to portray to the jury that he is of good character and therefore a credible witness, he may then be impeached by questions concerning arrests. State v. Elbert, 471 S.W.2d 170 (Mo.1971); State v. Macon, 547 S.W.2d 507 (Mo.App.1977). Here, Walter Parker, by responding that he had “no record” in answer to the question as to prior felony convictions voluntarily put his good character into issue and thereby subjected himself to impeachment by inquiry into prior arrests.

Defendant’s second point relates an alleged enmity displayed by the trial court. During closing argument, defense counsel commented to the jury on the punishment which it could assess: “Whether or not you’re going to take a man away from his job . . . and slap him in the penitentiary for five years . . . .” Objection was sustained. The trial court ordered the jury to disregard the comment and admonished defendant’s counsel not to “make any more statements like that. That was totally improper.” Defendant contends that the trial court’s action in directing the jury to disregard the remark and in admonishing his counsel, particularly in the absence of a request by the State, manifested an improper attitude of hostility toward him. There is no merit in this argument. As the case was tried under the Second Offender Act, it was improper for defendant’s counsel to argue punishment to the jury. State v. Courtney, 425 S.W.2d 121 (Mo.1968). Under the circumstances, we cannot find that the trial court’s action was an abandonment of a neutral position nor an abuse of its discretion as not being totally without justification. State v. Barron, 465 S.W.2d 523 (Mo.1971).

Defendant’s final point challenges the assignment of the case to the judge before whom the case was tried. Defendant filed a motion to disqualify the initial trial judge. The motion was granted with the judge reassigning the case to the trial judge who presided over the trial. Defendant complains as a denial of due process of the procedure whereby the disqualified judge selects his successor. This precise point was raised and rejected in State v. Day, 506 S.W.2d 497 (Mo.App.1974). See: Mo.Const. Art. V, § 15; Rules 30.12, 30.13, 30.14 and 30.16. Although defendant contends that St. Louis Circuit Court local rules require a disqualified judge to refer the case back to the criminal assignment division for reassignment, no evidence was offered to support such a contention. The disqualified judge specifically followed Rule 30.16. ■ We find no error in the assignment procedure.

Judgment affirmed.

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