author: KENNEDY, Judge.

text:
    STATE of Missouri, ex rel. ISC FINANCIAL CORPORATION, Relator, v. The Honorable Byron L. KINDER, Judge of the Circuit Court of Cole County, Missouri, Division No. II, Respondent.
    No. WD 35920.
    Missouri Court of Appeals, Western District.
    Jan. 15, 1985.

      Solbert M. Wasserstrom, Gene A. De-Leve and Jerald S. Enslein, Kansas City, for relator.
    Jim Tom Reid, Kansas City, for respondent.
    Before MANFORD, P.J., and KENNEDY and NUGENT, JJ.
   KENNEDY, Judge.

Upon application of ISC Financial Corporation, sole stockholder of Old Security Life Insurance Company, we issued our preliminary writ of prohibition, prohibiting respondent judge from closing the receivership of Old Security Life Insurance Company, of which the Missouri Director of Insurance, C. Donald Ainsworth, was receiver.

We now modify our preliminary writ and as modified make the same absolute.

The background facts are as follows:

Old Security Life Insurance Company was placed in receivership by order of the Circuit Court of Cole County dated October 20, 1977, in accordance with the procedure of § 375.560 et seq., RSMo 1969. The stated purpose of the receivership was the rehabilitation of the company, see § 375.-680, RSMo 1969, but on May 15, 1979, the court ordered the proceeding converted to one looking toward the liquidation of the company, § 375.690, RSMo 1969.

The receivership has been notably and unexpectedly successful and in early 1984, there was on hand something in excess of $17,000,000 above estimated obligations and expenses of the receivership.

The events which precipitated the present litigation began with the entry by respondent judge of an order on February 16, 1984. That order directed the receiver to file his final settlement by May 15, 1984, “a date five years from the date of the order of this court dissolving said company”, first giving statutory notice of his intention to do so. See § 375.760.3, RSMo 1969. This order was followed on March 26 by an order appointing a trustee to receive distribution of the receivership estate and to complete the administration thereof. Then (presumably on May 15), in declared pursuance of the February 16 order, a proposed final settlement and proposed order of discharge of the receiver were filed by the receiver. Our stop order and subsequent preliminary writ of prohibition prohibited the closing of the receivership estate.

It is clear from the language of the February 16 order that the respondent judge considered section 375.760.1 to be mandatory and that the receivership was thereby required to be terminated within a five-year period.

There remained pending in the receivership at that time a great many contingencies and uncompleted matters, both on the asset side and on the liability side, several of them involving substantial sums of money. We shall describe these matters later in the opinion. The trial court, in order to provide for their completion, on March 26, 1984, entered the order earlier referred to, appointing one Elaine S. Healey as trustee to receive the moneys from the receiver. The lengthy order gave somewhat specific directions for the trustee’s management of the receivership funds. She was to administer the fund, keep the same invested, and receive claims against the same and submit them to the court. Investments were to be made “in the name of the court”, but interest received therefrom should be “paid over direct to the trustee who shall keep a record with respect thereto”. She was to enter into a bond of $10,000. In broad terms, it may be said that the order purported to substitute the trustee as receiver in the stead of the director of insurance (who would be relieved of his duties after filing his final settlement and making distribution of the assets in his hands). The duties imposed upon the trustee by the March 26 order were roughly the same duties that the director of insurance would perform if he continued as receiver.

The receiver in pursuance of the court’s order of February 16, 1984, published his notice of final settlement in accordance with section 375.760.3. The notice set May 15, 1984, as the date upon which the final settlement would be filed.

On May 14, relator ISC Financial Corporation filed its application for writ of prohibition as noted in the first paragraph of the opinion. We issued our stop order on that date, and on May 31, 1984, issued our preliminary writ.

1. The February 16, 1984, order requiring final settlement and distribution.

The order of February 16, 1984, requiring the filing by the receiver of a final settlement preliminary to distribution of the assets and discharge of the receiver was premature. The pendency of the number of unresolved matters, and the size and complexity thereof, made it so.

The matters remaining unresolved at the time of the court’s February 16 and March 26 orders, and of the application for writ of prohibition on May 14, 1984, need not be described in detail, but the following will indicate something of their number, size and complexity:

A claim by R.A. Sniezek, formerly special counsel for the receiver, for $926,-782.68 additional fees for services rendered; litigation among receiver, Continental Bank of Illinois, and trustees of Central States, Southeast and Southwest Areas Health and Welfare Fund, in which receiver claimed upwards of $2,000,000 against bank, and in which Fund claimed $4,250,000 against receiver (This litigation had been settled by time of oral argument on November 7, resulting in augmentation of receivership estate by 2.6 million dollars); a contested claim by State of Missouri for $800,000 state income taxes; a dispute over a $630,000 trust fund in hands of receiver which was claimed by relator and against receiver’s resistance; claims of numerous claimants for unpaid interest on claims allowed against the receiver and paid, the allowance of which interest was resisted by relator; a dispute over the disposition of checks issued to various claimants and not cashed (totalling $138,-865.17, according to proposed “final settlement), claimed by the receiver to es-cheat to the state, a position opposed by relator.

In addition to the foregoing, the proposed final settlement of the receiver lists several unresolved claims with the notation that the amounts were “undeterminable at this time”. Also on May 15 the commissioners of claims filed an application for additional compensation at double the $50 hourly rate at which they had been paid. We gather from the oral argument that the amount thus claimed totals $550,000. This claim had by that time been allowed by respondent judge, and was on appeal. We are advised also in oral argument that relator intends to challenge the proposed final settlement based upon the alleged failure to the receiver to prosecute “a particular claim” — not further described — in the amount of $8,000,000.

The foregoing listing is not exhaustive, but it indicates the size and complexity of the matters remaining to be resolved. They could not be characterized as “loose ends”. They constitute substantial and active affairs which will call for a great deal of time, attention and expense on an ongoing basis. They will require active and expert management.

The February 16 order ought not to be implemented and enforced, but should be set aside.

2. The order of March 26 appointing trustee to administer estate.

The statutory scheme for the receivership in liquidation of an insurance company, section 375.560, et seq., sets up a self-contained and exclusive statutory scheme. O’Malley v. Prudential Casualty & Surety Co., 230 Mo.App. 935, 80 S.W.2d 896, 897 (1935). It makes no provision for the appointment of a trustee to take over the duties of the director of insurance acting as receiver. In appointing Ms. Healey as trustee, as the court did in its March 26 order, and in providing in such order for a system of continuing the affairs of the receivership the court exceeded its jurisdiction. The director of insurance is to be the receiver and he is to conduct the affairs of the receivership under the supervision of the court, in accordance with the statutory system.

For the above reasons, the order of March 26 should be vacated.

3. The effect of section 375.760.1.

As noted before, the respondent judge, it is clear from his February 16 order, considered the time limitation of section 375.760.1 to be applicable, and to require the completion of the receivership on or before May 15, 1984. The statute is not applicable and does not make that requirement. The statutory time period had never commenced to run. The date which starts the period running is “the date at which the company has been or shall be dissolved ” (emphasis ours). There had never been such a dissolution, so far as the record shows. The May 15, 1979, order, which was treated by the court as triggering the limitation period, did not purport to dissolve Old Security Life Insurance Company.

But, more basically, the statute with respect to the time limitation is not mandatory; it is directory only. It prescribes no consequences of the failure to complete the receivership within five years. It does not say what is to happen to the assets of the estate, or to the claims or the controversies, if the time limitation passes and the receivership has not been closed. It is a sound principle of statutory construction that a statute is not to be interpreted to produce an absurd result. State ex rel. Stern Bros. & Co. v. Stilley, 387 S.W.2d 934 (Mo.1960); Sutherland Stat. Const. § 45.12 (4th Ed). It would be wholly impractical to treat this statutory time period as having any but directory force. Hedges v. Department of Social Services of Missouri, 585 S.W.2d 170, 172 (Mo.App.1979); see generally Sutherland Stat. Const. § 50.01 et seq. (4th Ed.). The receivership assets and liabilities could not be cast into limbo. As a matter of fact, the director, Mr. Ainsworth, “in his separate capacity as the Director of the Missouri Division of Insurance and domiciliary and ancillary receiver of other insolvent insurance corporations in the State of Missouri,” has filed in this proceeding an amicus curiae brief resisting a judicial interpretation of the statutory time limit as mandatory, and suggesting the confusion which would follow such a construction. It points out that in many if not most of these insurance company receivership proceedings it is not possible to bring them to a conclusion within the five-year period. See e.g. Scheufler v. Continental Life Insurance Company, 351 Mo. 1139, 175 S.W.2d 836 (1943), and Leggett v. Missouri State Life Insurance Company, 342 S.W.2d 833 (Mo. banc 1961).

Respondent’s counsel in oral argument concedes that the trial court order requiring final settlement and distribution of the receivership estate is one which cannot be implemented in the present condition of affairs, and tells us in oral argument that the receivership will proceed regardless whether our writ of prohibition is made absolute.

4. Appropriateness of writ of prohibition.

The orders of February 16 and of March 26 were in excess of the trial court’s jurisdiction. There is available to relator no remedy by appeal, and the case is a proper one for the writ of prohibition. Jones v. Corcoran, 625 S.W.2d 173, 174 (Mo.App.1981).

The respondent challenges the appropriateness of the prohibition remedy on one ground only. He argues that relator ISC Financial Corporation resists the closing of the receivership estate in order not to receive the funds to be distributed therefrom. It resists receiving the funds, says respondent, because it would be required, under an order of the bankruptcy court— relator is in Chapter 11 proceedings — to pay out the same upon the principal of obligations which bear a low rate of interest. This court, says respondent, should not use the writ of prohibition to aid such a dubious scheme, citing State ex rel. Helm v. Duncan, 225 Mo.App. 393, 36 S.W.2d 679 (1931), and In Re State of Missouri, 664 F.2d 178 (8th Cir.1981).

There is nothing in the record before us, though, which bears out respondent’s assumption that the funds would be paid to relator if the receivership were closed. The plan which is in place calls for the distribution of the funds, not to relator, but to a court-appointed trustee. Relator therefore gains no unconscionable advantage over the holders of the obligations mentioned above by the issuance of our writ.

Conclusion.

We hereby direct that the February 16, 1984 order and the March 26, 1984 order described earlier in the opinion be vacated and set aside and direct that the same not be enforced or implemented in any way. The receivership may then proceed and the various claims and other unresolved disputes may be disposed of in an orderly fashion. Our preliminary writ, as so modified, is hereby made absolute.

All concur.

      . Section 375.760 reads as follows:
      1. The director shall make final distribution of the assets and final settlement of the affairs of each insolvent company, now or hereafter in his charge, and settlement of his accounts within the shortest time practicable, in no case to exceed three years from the date at which the company has been or shall be dissolved. The court may, for good cause, extend the time for such final settlement, not more than two years.
      2. For the purpose of making final settlement the superintendent shall, at least three months before making the same, convert into money all assets remaining undisposed of, and distribute the same among those entitled thereto, under the order of the court.
      3. Notice of such final settlement shall be given by publication in some newspaper published in the city or county in which such proceedings are pending, for at least four weeks prior thereto.
      4. The director shall hold any moneys which are unpaid or unclaimed by the persons entitled thereto for one year after final settlement, and at the expiration of such year, he shall pay all unclaimed sums into the state treasury to be held and disposed of as provided by laws for escheats.


source: Caselaw Access Project

author: SATZ, Presiding Judge.

license: Public Domain

text:
    Mary Etta RANSOM, a widow individually, and Clarence Lamont Ransom, a minor, Andre Maurice Ransom, a minor, Marvin Lavelle Ransom, a minor, Felicia Renee Ransom, a minor, Timothy Quinton Ransom, a minor, Lydell Lamar Ransom, a minor, Derrell (NMN) Ransom, a minor, Terrance Ramon Ransom, a minor, all by and through their next friend, Mary Etta Ransom, Plaintiffs-Appellants, v. ADAMS DAIRY COMPANY, d/b/a Velvet Freeze, C.A.S. Enterprises, Inc., and Alfred (NMN) Stewart, Defendants-Respondents.
    No. 47558.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 15, 1985.

      Stephen Joseph Nangle, Clayton, for plaintiffs-appellants.
    James E. Whaley, Leo V. Garvin, St. Louis, for defendants-respondents.
   SATZ, Presiding Judge.

On the morning of December 31, 1978, Clarence Ransom (Ransom) entered an ice cream, confectionary store and was shot to death by the operator of the store, defendant Alfred Stewart (Stewart). Ransom’s widow and children sued Stewart and the owner of the ice cream franchise, defendant C.A.S. Enterprises, Inc. (C.A.S.), for the wrongful death of Ransom.

At the close of plaintiffs’ case, the trial court sustained defendant C.A.S.’s motion for a directed verdict. The jury later returned a verdict for defendant Stewart against plaintiffs. Judgment was entered accordingly. We affirm.

We first address plaintiffs’ appeal from the judgment in favor of defendant Stewart. To do so, we use only the evidence and inferences favorable to Stewart and disregard that which is unfavorable. See, e.g., Affiliated Foods, Inc., v. Strautman, 656 S.W.2d 753, 763 (Mo.App.1983).

On December 31, 1978, defendant Stewart was shoveling snow off the sidewalk in front of the Velvet Freeze store he operated. Decedent Ransom, on his way home from a relative’s house, entered the store, mumbling about someone being the devil. He walked past the customers in the store and entered a back storeroom. Believing Ransom was acting unusually, Stewart followed Ransom into the store and asked Ransom to come out of the back. Ransom came out of the storeroom area, yelled at Stewart that Stewart was the devil and that one of them was going to heaven that morning.

Ransom then grabbed a young female customer from behind and, after telling her he was not going to hurt her, released her. He then shuffled into, grabbed or hit a male customer. Both customers feared for their safety. At this point, Stewart told Ransom to leave his customers alone and get out of the store. Ransom turned and rushed toward Stewart, proclaiming Stewart was “nothing but the devil.” Stewart told Ransom to get back and pulled out a gun. Ransom said: “Shoot, I don’t care.” Stewart shot Ransom in the head.

Additional evidence showed that, in 1975, Ransom was confined to the hospital for about three months for mental problems, and that, in early 1978, he was again confined for about three months for similar mental problems. After discharge from the hospital, he was on medication as an out-patient.

Plaintiffs complain the trial court improperly permitted inquiry into prior, specific violent acts of the decedent Ransom. The inquiry, plaintiffs argue, interjected Ransom’s character into evidence and, thus, prejudiced plaintiffs. We disagree.

The issue of Ransom’s violent acts was initially raised by defendants in an extended pre-trial conference and was repeatedly raised throughout this protracted trial. Explicitly stating its awareness of the possible prejudice that could be worked by the admission of such evidence, the trial court was equally explicit in stating that Ransom’s medical history was relevant for the limited purpose of showing his ability or, rather, inability to earn an income. The court consistently maintained this position and, when appropriate, rejected inquiry into any specific acts of violence.

This issue, however, arose again during cross-examination of Ransom’s widow, and, after extended discussion at the bench, the court permitted Stewart’s counsel to ask Ransom’s widow one limited question: whether Ransom became violent “when he didn’t take his medication.” Apparently, unexpectedly, she, in effect, denied Ransom was violent when off his medication. The court then permitted counsel to cross-examine her further. In response to additional questions, she testified that if she had previously said Ransom had intentionally set their house on fire, she was now saying it was an accident, that on the occasion of the fire, Ransom did “sling” furniture around and that she did take the children to another part of the house to protect them from him.

We find no abuse of discretion here. Evidence which tends to prove or disprove a fact in issue is relevant and, therefore, admissible. E.g., Arie v. Intertherm, Inc., 648 S.W.2d 142, 154 (Mo.App. 1983). In a wrongful death action, the decedent’s contribution to the support of his dependents is an essential issue and, thus, among other facts, his health and earning capacity while alive are relevant. Grothe v. St. Louis-San Francisco Ry., 460 S.W.2d 711, 718 (Mo.1970). The trial court, here, correctly permitted Ransom’s widow to be questioned about Ransom’s history of breakdowns and treatment. See, e.g., Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, 523 (1947); Kribs v. Jefferson City Light, Heat, & Power Co., 199 S.W. 261, 263 (Mo.App.1917). Moreover, after she denied that Ransom became violent when not on medication, the court’s carefully considered decision to permit inquiry into specific acts of violence was not an abuse of its considerable discretion to determine the appropriate scope of cross-examination. See, e.g., Shepard v. Harris, 329 S.W.2d 1, 12 (Mo. banc 1959); Gant v. Hanks, 614 S.W.2d 740, 744 (Mo.App.1981). Furthermore, evidence admissible for one purpose may be admitted even though it may be improper for other purposes. Martin v. Yeoham, 419 S.W.2d 937, 950 (Mo.App.1967). Thus, if requested, plaintiffs may have been entitled to an instruction limiting the use of the acts in question to the issue of Ransom’s ability to earn income, Thigpen v. Dodd’s Truck Lines, Inc., 498 S.W.2d 816, 818 (Mo.App.1973). Plaintiffs did not make this request and, therefore, cannot now be heard to complain on appeal. Id. at 818.

Plaintiffs also contend the trial court erred in submitting an unmodified version of the self-defense instruction, MAI 32.11. As submitted, the instruction reads:

“Your verdict must be for defendant Alfred Stewart if you believe:

First, defendant Alfred Stewart had reasonable cause to apprehend and did apprehend great bodily harm from decedent, and
Second, defendant Alfred Stewart did not create the situation which caused his apprehension, and
Third, the shooting of decedent was in defense against this apprehended great bodily harm, and
Fourth, defendant Alfred Stewart used only such force as was reasonable and necessary.”

Plaintiffs contend the first paragraph of the instruction should have been modified to include the phrase “imminent danger of death” and, thus, read: “defendant Alfred Stewart had reasonable cause to apprehend and did apprehend imminent danger of death or great bodily harm....” Without this modification, plaintiffs argue, the instruction withdrew the issue of the exces-siveness of the force used. We disagree.

MAI 32.11 lists three optional phrases to be used in the first paragraph of the instruction, with a note that the phrase appropriate to the force used is to be selected. None of the three include the words plaintiffs urge should be included.

Plaintiffs cite Martin v. Yeoham, 419 S.W.2d 937, 950 (Mo.App.1967) for the proposition that “[ujnder Missouri decisions the existence of reasonable cause for apprehension of mere bodily injury is not sufficient to justify a shooting in self-defense. There must be reasonable cause of apprehension of imminent danger of death or great bodily harm.” (Emphasis theirs) In the instant case, however, apprehension of “mere bodily injury” was not submitted to the jury. Apprehension of “great bodily harm” was submitted. By use of the disjunctive “or”, the Court in Martin, equated apprehension of “great bodily harm” with apprehension of “imminent danger of death” and, thus, either apprehension would justify “a shooting in self-defense.” Id. at 950. Understandably, subsequent to the Martin case, this court held there is no error in not including the phrase “imminent danger of death” in the self-defense instruction in issue, MAI 32.11. See Moore v. Smith, 657 S.W.2d 664, 667 (Mo.App.1983).

Plaintiffs next contend the trial court erred in precluding them from using Stewart’s alleged history of drug abuse to impeach Stewart’s credibility. We disagree.

At trial, plaintiffs’ counsel made an offer of proof based upon the alleged records of Stewart’s drug treatment at the St. Louis State Hospital Drug Abuse Clinic. According to counsel, these records show: (1) Stewart had a long history of treatment for drug abuse and an even longer history of drug use, (2) Stewart had a “dirty urine sample” on January 1, 1979, one day after the shooting in question, and (3) on January 3,1979, in response to his drug counsel- or’s inquiry about the dirty urine sample, Stewart responded he had used “illicit drugs because he was sick and medication didn’t hold him.” To give relevant meaning to this showing, counsel told the trial court that he could produce an expert who, based upon this showing, would testify that Stewart’s ability to perceive, recall and relate was seriously impaired. The court found the expert’s name was not timely given to opposing counsel, prohibited the use of the expert and, therefore, overruled the offer of proof and sustained defense counsel’s objection to the admissibility of this evidence.

Having failed with this argument, plaintiffs’ counsel then argued that the facts in Stewart’s treatment record were admissible without accompanying expert testimony. More specifically, he argued and now argues on appeal that, even without supporting expert testimony, Stewart’s “dirty urine sample” on January 1, 1979 and Stewart’s statement on January 3, 1979 that he had been using illicit drugs was sufficient circumstantial evidence to show Stewart was under the influence of drugs on the day in question. In addition, he argued and now argues that, even without supporting expert testimony, evidence of Stewart’s history of drug use and treatment was admissible to show Stewart’s inability to perceive, recall or relate.

Plaintiffs base their arguments on Markowitz v. Markowitz, 290 S.W. 119, 122 (Mo.App.1927) which, plaintiffs read, as holding:

“The evidence of a witness who was under the influence of a drug at the time of the occurrence to which he testifies or is under such influence at the time of testifying is unreliable and the jury should be carefully warned as to the credence to be given to it.”

Plaintiffs misinterpret the holding of Markowitz. The issue the court addressed was simply whether the trial court “erred in admitting expert testimony as to the reliability of a witness who was a drug addict.” Id. at 122. Obviously, the holding in Markowitz dealt with the narrow issue of the admissibility of expert testimony; an issue plaintiffs, understandably, have abandoned on appeal.

Research has disclosed no precedent in Missouri for admitting evidence of Stewart’s drug use and treatment to impeach his credibility without expert testimony. On the contrary, analogous cases strongly suggest the opposite result. See, e.g., State v. Booth, 423 S.W.2d 820, 824 (Mo.1968).

Plaintiffs here did not show the precise mental effects on Stewart from the use of drugs were common knowledge. On the present record, this evidence of Stewart’s drug use and treatment standing alone was not admissible to show Stewart’s inability to perceive, recall, or relate, nor would it be admissible to impeach Stewart’s testimonial credibility. See Annot., Competency of Witness-Drug Use, 65 A.L.R.3d 705 (1975).

Plaintiffs next argue the trial court abused its discretion in sustaining defendant C.A.S.’s objection to plaintiffs’ use of Stewart’s deposition during cross-examination of Stewart. The deposition was taken before C.A.S. was joined as a party in the instant case. At trial, C.A.S. claimed prejudice because it was not represented for purposes of cross-examination when the deposition was taken. Plaintiffs argue that Stewart’s deposition testimony could be introduced simply as prior inconsistent statements without referring to the statements being made in a deposition under oath. Plaintiffs’ counsel, however, failed to make an offer of proof showing what inconsistent statements he expected to use from the deposition. Without an offer of proof, nothing is preserved for appellate review. Brazell v. St. Louis Southwestern Railway, 632 S.W.2d 277, 284 (Mo.App. 1982); Lodjic v. Ketterlin, 562 S.W.2d 378, 381 (Mo.App.1978).

Plaintiffs also contend it was prejudicial error for the trial court to sustain defendant C.A.S.’s motion for a directed verdict at the close of plaintiffs’ case. We find no prejudice.

For the purpose of this issue, we will overlook the pleading, procedural and substantive defects the trial court used to support its ruling. We will assume plaintiffs’ petition reflected, as plaintiffs contend, three theories of recovery against C.A.S.: (1) respondeat superior, based upon a principal/agent relationship between C.A.S. and Stewart, (2) negligent hiring and retention, based upon an employer/employee relationship between C.A.S. and Stewart, and (3) negligent entrustment, based upon a lessor/lessee relationship between C.A.S. and Stewart. Each of these theories is a theory of derivative or dependent liability. C.A.S. could be liable only if Stewart was liable for his conduct. Since the jury found Stewart not liable, C.A.S. would not be liable. Therefore, if Stewart’s liability was submitted to the jury without exclusion of relevant evidence, plaintiffs suffered no prejudicial error from the trial court’s ruling.

Plaintiffs apparently argue that Stewart’s alleged drug use and prior criminal convictions are relevant to the issues of both C.A.S.’s and Stewart’s liability, and this evidence, plaintiffs argue, was improperly excluded. Plaintiffs argument, however, is not persuasive.

We will assume that Stewart’s drug use and prior convictions are relevant to show Stewart is incapable to use a gun reasonably and, therefore, relevant to show C.A.S. should not have given a gun to Stewart, as an agent, or, should not have hired Stewart as an employee with access to a gun, or, should not have entrusted him as a lessee with a gun. This assumed relevance, however, does not make this evidence relevant to the issue of whether Stewart acted as a “reasonable person” in shooting Ransom. This self-defense issue is an objective not a subjective standard. Thus, Stewart’s proclivities or propensities are irrelevant to this issue. The jury did, in fact, consider the self-defense issue without considering this irrelevant evidence and found Stewart was not liable for his conduct. Since C.A.S.'s liability is derivative of or dependent upon Stewart’s liability, plaintiffs were not prejudiced by the trial court sustaining C.A.S.’s motion for a directed verdict.

Judgment affirmed.

GAERTNER and STEWART, JJ., concur.

      . Plaintiffs also filed suit against Adams Dairy Co., Inc., d/b/a Velvet Freeze. Adams Dairy Co. was granted summary judgment before the trial began and is not a party to this appeal.

      . The three phrases listed are: great bodily harm from plaintiff; bodily harm from plaintiff; and offensive conduct from plaintiff. See MAI 32.11.

      . The record does not clearly show the procedural method plaintiffs planned to use to proffer the records in question. They could not use Stewart to establish the evidence in these records. Although plaintiffs did call Stewart as a hostile witness, they could not impeach his credibility by direct examination. See e.g., Lamb v. Heiligers, 532 S.W.2d 820, 825 (Mo.App.1975). The exception to this ban against direct impeachment is the use of the adverse witness' prior inconsistent statements. Id. at 825 n. 2.

      . Among other findings, the trial court found plaintiffs’ evidence insufficient to show a principal/agent or employer/employee relationship between C.A.S. and Stewart, and, therefore concluded C.A.S. could not be liable as a principal for Stewart’s conduct nor liable for negligent hiring. The court also found that plaintiffs had not properly pleaded a negligent entrustment theory and would not permit plaintiffs to amend their pleading.

      . To recover on a negligent hiring and retention theory, a plaintiff must prove: the defendant employer knew or should have known of the employee’s dangerous proclivities and the defendant employer’s negligence was the proximate cause of plaintiffs injury. See Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983); Strauss v. Hotel Continental Co., 610 S.W.2d 109, 114-115 (Mo.App.1980).
      To recover on a negligent entrustment theory, a plaintiff must prove: (1) the entrustee was incompetent by reason of age, inexperience, habitual recklessness or otherwise; (2) the defendant entrustor knew or had reason to know of the entrustee’s incompetence; (3) there was an entrustment of the chattels; and (4) the negligence of the entrustor concurred with the conduct of the entrustee as a proximate cause of the harm to the injured party. See Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 S.W.2d 325, 326 (Mo. banc 1977).

      . In assuming the admissibility of the drug use and prior convictions, we do not minimize the critical relevancy issue nor do we minimize other procedural and substantive problems considered by the trial court in excluding this evidence. For example, no conviction involved the use of a gun and the last conviction was in 1965, 13 years before the incident in question. Thus, the relevancy of these convictions to show Stewart’s incompetence to handle or dangerous proclivities in handling a gun is highly questionable. See, e.g., Evans v. Allen Auto Rental and Truck Leasing Inc. 555 S.W.2d 325, 327 (Mo banc 1977) (Bardgett, J. concurring) (negligent entrustment); Gaines v. Monsanto Co., 655 S.W.2d 568, 571 n. 2 (Mo.App.1983) (negligent hiring and retention).
      Moreover, plaintiffs attempted to introduce Stewart’s prior convictions through direct examination of Stewart. Although plaintiffs called Stewart as a hostile witness, plaintiffs could not directly impeach him except by prior inconsistent statements. See, e.g., Lamb v. Heiligers, 532 S.W.2d 820, 825 (Mo.App.1975).

      . On appeal, plaintiffs also complain the trial court erred in excluding an insurance contract secured by C.A.S. and a letter apparently written by C.A.S. to Stewart. Plaintiffs argue that both documents are relevant to show the business relationship between C.A.S. and Stewart. The above discussion demonstrates this business relationship is irrelevant to a proper disposition of this case. Thus, we do not address this complaint of plaintiffs.


author: PER CURIAM.

text:
    Robert SUNNEN, et al., Appellants, v. Marilyn JOHNSON, Delbert Warren, Century 21-Campbell Realty, Inc., Respondents.
    No. 47613.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 15, 1985.
    Richard Jacobs, Clayton, for appellants.
    Earl R. Blackwell, Hillsboro, Francis Joseph Vatterott, St. Ann, Patrick J. Healey, Festus, for respondents.
   ORDER

PER CURIAM.

Plaintiffs appeal from the trial court’s dismissal of six Counts of a petition that were directed to the responding defendants. These Counts are independent causes of action and the trial court designated its order as final for purposes of appeal. Plaintiffs’ petition clearly failed to state a cause of action against the responding defendants. An extended opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).


author: CRIST, Judge.

text:
    CUMMINS MISSOURI, INC., Appellant, v. Walter THIERATH, Respondent.
    No. 48371.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 15, 1985.

      Bryan, Cave, McPheeters & McRoberts, David S. Slavkin, St. Louis, for appellant.
    Stephen H. Gilmore, Thad F. Niemira, St. Louis, for respondent.
   CRIST, Judge.

Action by appellant (Cummins Mo.) against respondent (trucker) to recover $2,214.64 for repairs made to the engine in trucker’s truck. Counterclaim by trucker for fraud of Cummins Mo. in installing an engine different from the one agreed upon.

The jury found against Cummins Mo. on its action to recover $2,214.64. It awarded trucker $35,000.00 actual damages and $75,000.00 punitive damages on his counterclaim. The trial court reduced the actual damage award to $15,000.00. Cummins Mo. appealed the judgment on trucker’s counterclaim. We reverse the judgment on the counterclaim.

The truck was purchased in 1976. Trucker was then a hauler of produce across the United States. He was owner-operator of this truck and one other. In November of 1977, the truck was taken to one Howell for service. Howell improperly installed an oil filter causing the “oil to blow out and the engine to lock up.”

Howell made arrangements with Cum-mins Mo. to replace the engine with a factory exchange engine for $7,500.00. Cum-mins Mo. told Howell a new engine would be installed. He received a receipt for a factory exchange engine, and was told the warranty would be the same as for a new engine.

Cummins Mo. assured trucker he would have a factory exchange engine and wrote on the work order “FEX” to allay trucker’s fears of receiving back the same repaired engine.

Trucker’s financial backer was assured by Cummins Mo. it would not rebuild trucker’s engine, but would replace it with a different factory rebuilt engine. Cummins Mo. rebuilt trucker’s engine rather than replacing it with someone else’s factory rebuilt engine. The rebuilt engine was warranted for 100,000 miles/one year, the same warranty as for any Cummins Mo. factory rebuilt engine. Trucker’s warranty count was dismissed by the trial court, and is not an issue on this appeal.

Soon thereafter, the truck was using oil. Cummins Mo. advised trucker to drive it until the pistons seated. The oil problem worsened. In March of 1978, Cummins Mo. replaced the engine’s cylinder heads without charge.

In July of 1978, trucker received a call from his driver and a shop foreman of an Amarillo, Texas Cummins Dealer advising him repairs would have to be made to the engine. Trucker was not surprised by the telephone call because he had had nothing but trouble with the truck since it left Cummins Mo. The trouble had been “leakage of oil, leakage of water, everything. The truck just was not functioning right.”

The only direct evidence as to the cause of the engine problem in Amarillo was offered by defendant — overheating by running the engine without water. The Amarillo Cummins dealer made repairs and charged $2,214.64. Cummins Mo. paid the bill. It then sued trucker for reimbursement.

After the repairs were made in Amarillo, the truck was driven to California. At Flagstaff, Arizona, the truck had oil all over it. It was taken to a Cummins dealer. It inspected and steam cleaned the truck, checking for oil leaks, but was unable to find where the oil was coming from. The truck was then driven to an authorized Cummins dealer in San Jose, California, for repairs. It took trucker five weeks to get the truck repaired in California by the California Cummins dealer. Trucker was told the truck was ready. He drove it about 300 miles when the oil gauge began to fluctuate. The same thing happened that had happened four or five times previously: oil all over the place. Trucker left the trailer in California because the truck did not have enough power to pull it. The truck was sold at a distress price six to seven weeks after the problem in Amarillo.

Cummins Mo. told trucker they were not going to honor the 100,000 miles/one year warranty, because he received a rebuilt engine which did not have the same warranty on it. Trucker submitted his case to the jury on fraud. The elements of the cause of action for fraud are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of the falsity or his ignorance of the truth; (5) the speaker’s intent that his statement be acted upon; (6) the hearer’s ignorance of the falsity of the statement; (8) the hearer’s reliance on the truth of the statement; and (9) the hearer’s consequent and proximate injury. O’Shaughnessy v. Ward Aircraft Sales & Service, Inc., 552 S.W.2d 730, 733 (Mo.App.1977). Cummins Mo. correctly states trucker failed to make a sub-missible case of fraud in that he failed to show proximate damage because of Cum-mins Mo.’s installing an engine different from the one agreed upon.

After Cummins Mo. installed the same, rebuilt engine, it used oil. Cummins Mo. put in new cylinder heads. Ninety-six thousand miles after Cummins Mo. rebuilt trucker’s engine, the engine failed in Amarillo. Trucker offered no substantial evidence as to what caused the breakdown in Amarillo. Cummins Mo. offered evidence the cause of the damage in Amarillo was that of overheating. The overheating was precipitated by running the engine without water. The water filter hose broke causing loss of water. The jury chose to disbelieve this evidence, but it was the only substantial evidence of what caused the breakdown.

Trucker testified the reasonable value of the truck before the Amarillo breakdown was $20,000.00 and immediately after the breakdown from $10,000.00 to $12,000.00. Six to seven weeks after the Amarillo breakdown he traded the truck in on a new truck at a distress price.

There is insufficient evidence to show trucker’s rebuilt engine was the cause of the breakdown in Amarillo. The repairs in Amarillo were made by a corporation separate and apart from the Cum-mins Mo. corporation. The damages complained of in Arizona and California may have been caused by the Amarillo Cummins dealer. Such damages may, or may not, have been caused by trucker’s rebuilt engine. The evidence does not show that it would make any difference that Cummins Mo. had rebuilt someone else’s engine rather than trucker’s engine. The evidence shows only the rebuilt engine had an oil problem which Cummins Mo. repaired at no charge to trucker. Thereafter, at 96,000 miles the engine broke down in Amarillo. Trucker offered no substantial evidence as to the cause of this Amarillo breakdown. Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 916 (Mo.App.1983), and Toenjes v. L.J. McNeary Construction Company, 406 S.W.2d 101, 106 (Mo.App.1966).

For the reason the warranty issue has been determined, and we have not been shown trucker could recover on another theory, we must reverse the judgment on the counterclaim.

Judgment on the counterclaim reversed.

DOWD, P.J., and CRANDALL, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Betsy SCHIFF, Plaintiff-Appellant, v. LABOR & INDUSTRIAL RELATIONS COMMISSION of Missouri, and Supreme Court of Missouri, Defendants-Respondents.
    No. 49015.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 15, 1985.
    Martin Schiff, Jr., Clayton, for plaintiff-appellant.
    Timothy P. Duggan, Jefferson City, for defendants-respondents.
   PUDLOWSKI, Presiding Judge.

This appeal involves the dismissal of appellant’s petition for judicial review of a decision by the Labor and Industrial Relations Commission. The dismissal was based upon the circuit court’s lack of jurisdiction, in that appellant failed to join the Division of Employment Security within the time required under Section 288.210 RSMo 1978. We affirm.

Appellant, Betsy Schiff, filed a claim for unemployment benefits. A deputy from the Division of Employment Security determined that appellant was disqualified to receive benefits for six weeks for alleged misconduct that prompted her discharge. Appellant took no appeal from this determination because she believed that payment of unemployment benefits would merely be deferred, not denied. Appellant’s belief was erroneous. Upon learning her benefits would be denied, appellant requested leave to file a late appeal from the deputy’s decision. The appeals referee dismissed the appeal as untimely. The Labor and Industrial Relations Commission adopted the decision of the referee, one Commissioner dissenting.

On March 12, 1984, appellant filed her petition for judicial review of the Commission’s decision. Named as defendants were the Labor and Industrial Relations Commission and the Supreme Court of Missouri. The Commission filed a motion to dismiss for failure to join all necessary parties as defendants within the time required under Section 288.210. On August 1, 1984, the trial court sustained the motion to dismiss for failure to join the Division of Employment Security.

Duzer v. Industrial Commission, 402 S.W.2d 616 (Mo.App.1966) is on all fours with our case. Duzer specifically held that:

Section 288.210, supra, provides the procedure where a judicial review is sought of a decision of the Commission. It is complete and exclusive, and its terms must be complied with before a court can acquire jurisdiction of such a proceeding. By its terms, the Division of Employment Security is designated as a necessary party to such suit, and in our judgment the court does not acquire jurisdiction over the action unless suit is filed and all necessary parties are made defendants within the ten day period specified in the statute.

Appellant is before this court asking us to overrule Duzer. We decline to do so. Section 288.210 contains a plain, unambiguous and positive command which plaintiff failed to heed. The terms of the statute must be complied with before a court can acquire jurisdiction. Necessary parties are clearly indicated and our decision is that the court does not acquire jurisdiction unless the action is timely brought and all necessary parties are named. The trial court did not err in sustaining the motion to dismiss.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


author: CROW, Judge.

text:
    In the ESTATE OF Thomas S. GRAVES, Deceased. Eva HALE, Heir to the Estate of Thomas S. Graves, Appellant, v. Mona Belle BRADLEY, Respondent.
    No. 13662.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 21, 1985.

      Dorr & Baird, C. Ronald Baird, Springfield, for appellant.
    Woolsey, Fisher, Whiteaker, McDonald & Ansley, John E. Price, Springfield, and James E. Curry, Ava, for respondent.
   CROW, Judge.

Mona Belle Bradley (“claimant”) filed a claim against the estate of Thomas S. Graves, deceased, for $5,000 plus accrued interest allegedly due her on a promissory note made by Graves during his lifetime. The Probate Division of the Circuit Court of Ozark County entered judgment for claimant as prayed. Eva Hale, a daughter of Thomas S. Graves, appeals, assigning two errors. The first is that the trial court wrongly ruled that the estate did not sustain its burden of proving payment of the note, as there was substantial evidence it had been paid. The second is that the trial court erred in failing to make “necessary factual findings” on the issue of payment.

The scope of our review in this judge-tried case is established by Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). The trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Conflicts in the evidence are for the trial court to resolve, Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483[3] (Mo. banc 1980), and in doing so the trial court may believe all, part or none of the testimony of any witness. Id. at 483[4].

Graves made the note August 5, 1978. It bore interest at nine per cent per annum from date and was payable 12 months after date. The consideration for the note was a $5,000 loan by claimant to Graves. As proof of that loan, claimant produced a cancelled check for $5,000 dated August 5, 1978, drawn by her against her bank account, payable to Graves and endorsed by him.

Claimant testified that prior to the loan of August 5, 1978, she had made two loans of $1,000 each to Graves, and one loan of $3,000. In support of that testimony, claimant produced cancelled checks drawn by her against her bank account, payable to Graves and endorsed by him, bearing the following dates and amounts: May 22, 1976, $1,000; May 31, 1976, $1,000; November 17, 1977, $3,000. None of these loans was evidenced by a note. Claimant testified that all of them were “supposed to have been short-term loans,” and that she had charged Graves no interest. She added that all these loans had been paid.

On May 12, 1979, some nine months after the note in issue had been made, and prior to receiving any payment thereon, claimant, according to her testimony, loaned Graves another $5,000. No note was prepared to reflect this new loan, but claimant, as proof of the loan, produced a cancelled check drawn by her against her bank account, dated May 12, 1979, for $5,000, payable to Graves and endorsed by him.

About August 14, 1979, a $5,400 check against Graves’ bank account was deposited in claimant’s bank account. Claimant explained that when she received that sum from Graves, the note was not “handy,” as she kept it in a safe at her place of employment. Consequently, according to claimant, Graves said to apply the payment to the $5,000 he had borrowed from her three months earlier on May 12, and “we’ll let the note ride.” In support of this testimony, claimant produced her checking account register with a handwritten notation on the margin stating: “Hold 1978 Note.”

Asked whether she applied the remaining $400 of the $5,400 payment against the accrued interest on the note, claimant answered: “Well, it could have been the interest, or it could have been a loan that he— he owed me more money than that, but I had nothing to prove it. I had nothing to prove it, so I didn’t mention anything he told me, he says, ‘Now I’m going to pay your [sic] back.’ ”

The note, when produced by claimant at trial, showed, by handwritten notations on its face, that interest had been paid to August 5,1979, and that interest had again been paid August 5, 1980. Claimant testified the latter payment would have been $450, and that Graves always paid her by check. Bank records of claimant’s account revealed, however, that there was no $450 deposit to claimant’s account in August, 1980.

There was no other evidence of payment by Graves to claimant on the note.

Claimant testified that the principal amount of the note, $5,000, together with the interest accruing after August 5, 1980, was due her when Graves died on September 11, 1981.

The trial court agreed, entering judgment in claimant’s favor as prayed. In reaching its decision, the trial court found, among other things, that Graves’ estate “did not sustain its burden of proving that payment of the note had been made.”

Eva Hale (“appellant”) states her first point thusly:

“The trial court erred in ruling that defendant (Estate of Thomas S. Graves) did not sustain its burden of proving that payment of the 1978 note had been made because there was substantial evidence of payment of the 1978 note in that:
1. There is a presumption of payment when there is only one outstanding obligation and payment of said amount is received; and
2. Claimant herself admitted she received payment of $5,400.00 in August, 1979, and that there was never more than one outstanding obligation at any one time; and
3. Claimant admitted that decedent always repaid his obligations before he would borrow money from her, and
4. Decedent paid her $5,400.00 in August, 1979, the anniversary date of the 1978 note which was deposited by claimant to her account.”

In connection with elements “2” and “3” of the point, appellant relies on testimony by claimant during her pretrial deposition that Graves never borrowed from her until he had paid back his previous loan, so that he was never indebted to her on more than one loan at a time. At trial, claimant explained her deposition testimony by stating that she cannot remember “dates and things,” that she has a “mental block” when under pressure, and that after the deposition she found the notation in her checkbook which refreshed her memory regarding the circumstances surrounding the $5,400 payment she received from Graves on or about August 14, 1979.

Appellant concedes that Graves’ estate had the burden of proving that Graves had paid the note. Hubbard v. Happel’s Estate, 382 S.W.2d 416, 423-24[5] (Mo.App.1964). Appellant insists, however, that the burden was satisfied by proof of the $5,400 payment from Graves to claimant on or about August 14, 1979. Appellant reminds us that inasmuch as the note, dated August 5, 1978, was due 12 months after date, the $5,400 payment came shortly after the note had matured. Additionally, the amount of the payment, $5,400, was near, but not quite, the total of principal and interest then owed by Graves on the note.

Appellant discounts claimant’s explanation that $5,000 of the $5,400 payment was applied to repay the $5,000 borrowed by Graves from claimant on May 12, 1979, contending that (a) there was no proof that the transaction of May 12, 1979, was a loan, as no note was made and claimant’s check to Graves did not show it was for a loan, and (b) claimant testified on deposition that Graves never owed her on more than one loan at a time. Appellant argues, inferentially, that the evidence establishes that claimant’s $5,000 check to Graves on May 12, 1979, was a gift, not a loan, and thus there was only one $5,000 debt (the note) plus a year’s interest owed by Graves to claimant when Graves paid claimant the $5,400 on or about August 14, 1979.

From the hypothesis that the only debt owed by Graves to claimant on August 14, 1979, was the note, appellant, citing Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214 (1938), asserts that a presumption arises that the $5,400 paid by Graves to claimant at that time was for payment of the note.

The trial court, of course, consistent with appellant’s theory, could have disbelieved claimant’s testimony that the transaction of May 12, 1979, was a loan, and could have likewise disbelieved that claimant and Graves agreed that $5,000 of Graves’ $5,400 payment on August 14, 1979, was to be applied to pay that loan, instead of the note. The trial court, however, was just as free to believe claimant’s testimony on those matters, and it is evident from the result reached that the trial court found claimant’s testimony credible.

Appellant’s argument, reduced to essentials, is simply an invitation to us to make an independent determination on the credibility of claimant. That is not our role. Credibility of witnesses and the weight to be given their testimony is for the trial court, Mills v. 1st National Bank of Mexico, 661 S.W.2d 808, 810[1] (Mo.App.1983), and we may not substitute our judgment for that of the trial court on credibility issues, Atkins v. Clark, 644 S.W.2d 365, 369[5] (Mo.App.1982).

Claimant’s testimony, corroborated by the $5,000 cancelled check of May 12, 1979, supplied substantial evidence that claimant loaned Graves that amount on that date, and that $5,000 of the $5,400 he paid her on or about August 14, 1979, was, by agreement between them, applied in payment of that loan, and not in payment of the note. There was, therefore, substantial evidence to support the trial court’s finding that the note had not been paid, and we cannot say that finding was contrary to the weight of the evidence. Appellant’s first point is, accordingly, denied.

As noted at the outset of this opinion, appellant’s second point asserts the trial court erred by failing to make “necessary factual findings” on the issue of payment. Specifically, appellant insists the trial court should have explained why it rejected appellant’s theory that Graves’ payment to claimant on or about August 14, 1979, discharged the indebtedness evidenced by the note.

Rule 73.01, Missouri Rules of Civil Procedure (15th ed. 1984), provides, in pertinent part:

“(a) In cases tried without a jury ...:
(2) ... If any party so requests before final submission of the case, the court shall dictate to the court reporter, or prepare and file, a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded; and may, or if requested by counsel, shall, include its findings on such controverted fact issues as have been specified by counsel. All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.”

At trial, appellant’s counsel stated, “We would ask the Court to make findings of fact when it renders a judgment in this case, and conclusions of law.” However, counsel specified no controverted fact issues on which findings were sought.

The trial court made five numbered findings of fact, one of which was, as recounted earlier, that Graves’ estate did not sustain its burden of proving that payment of the note had been made. Appellant complains that this did not satisfy the trial court’s duty to set forth “specific factual findings on the most crucial factual issue of the case.”

Appellant relies on Springfield Television, Inc. v. Gary, 617 S.W.2d 86 (Mo.App.1981), in which a judgment was reversed because of the trial court’s failure to comply with the losing parties’ request for findings of fact and conclusions of law. There, however, each side prepared and submitted proposed findings of fact and conclusions of law to the trial court, but the trial court did not adopt either, did not file a memorandum opinion, and simply entered an unadorned judgment.

Different circumstances exist here. The dispositive issue was whether the note had been paid. Appellant’s theory was that the $5,400 payment by Graves to claimant on or about August 14, 1979, was in payment of the note. Claimant’s evidence was that $5,000 of that $5,400 payment was, by agreement between her and Graves, applied to repay her the $5,000 she had loaned Graves on May 12, 1979. It is obvious that the trial court, in finding that Graves’ estate did not sustain its burden of proving that payment of the note had been made, resolved this fact issue in favor of claimant and against appellant. All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(2), supra; Flowers v. Bales, 615 S.W.2d 103, 105[3] (Mo.App.1981).

Having failed to specify any particular fact issue for finding by the trial court, appellant cannot now convict the trial court of error for not making a more detailed finding on the issue of payment. McClelland v. Williamson, 627 S.W.2d 94, 97[4] (Mo.App.1982).

Appellant’s second point is denied.

Judgment affirmed.

PREWITT, C.J., HOGAN, P.J., and MAUS, J., concur.

      . Claimant also sought, and was awarded, sundry other amounts for various reasons. None of those awards are in dispute on this appeal.

      . On the standing of an heir to appeal from a judgment allowing a claim against an estate see §§ 472.010(15) and 472.160.1(1), RSMo Cum. Supp.1984; Schappacher v. Smith's Estate, 223 S.W.2d 121 (Mo.App.1949); State ex rel Jones v. Davis, 240 Mo.App. 411, 216 S.W.2d 155 (1948).

      . Evidence was heard on two dates, November 4, 1983, and January 10, 1984.


author: HOGAN, Judge.

text:
    WATKINS INVESTMENT COMPANY, d/b/a Radio Station KRFG, Plaintiff-Respondent, v. WILLIAM B. TANNER COMPANY, INC., Defendant-Appellant.
    No. 13506.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 22, 1985.

      Lincoln J. Knauer, Jr., Farrington, Curtis, Knauer, Hart & Garrison, Springfield, for defendant-appellant.
    John A. Watkins, Greenfield, for plaintiff-respondent.
   HOGAN, Judge.

Defendant William B. Tanner Company, Inc., appeals from an order of the Circuit Court of Lawrence County dismissing its counterclaim for failure to prosecute. The cause was originally argued and submitted at the June 1984 session of this court at Springfield. An opinion was prepared and filed in due course; a vigorous motion for rehearing caused the panel to withdraw the original opinion and order supplementation of the record to see if some basic or novel principle of law had been overlooked.

The action was commenced in the Circuit Court of Dade County on June 5, 1975. Plaintiff, doing business as Radio Station KRFG, averred that defendant, a Tennessee corporation, had offered to sell and plaintiff had agreed to purchase a radio programming service called “Instant Library Service.” Such service consisted of 3,640 one-minute spot announcements represented by defendant to be “up-to-date and varied musical and commercial productions of the highest quality and suited to the present format of Radio Station KRFG.” Plaintiff alleged payment to the defendant in the amount of $4,620 by execution of seven (7) serial promissory notes payable to the defendant in the amount of $660 each. It was further averred that defendant’s representations were false because the recordings — which plaintiff agreed to broadcast — -were not up-to-date, nor in any manner suited to the format of Radio Station KRFG.

The plaintiff further alleged that when the “Instant Library Service” was received on September 26, 1974, it discovered the “fraud perpetrated” and offered to rescind the contract and requested return of the promissory notes by defendant, but defendant refused. The defendant was served outside the state on June 12, 1975.

The defendant promptly petitioned the United States District Court for removal. On September 5,1975, that court found the requisite jurisdictional amount was not in dispute and remanded the case. On October 16, 1975, defendant filed an answer admitting execution of the contract, denying upon information and belief that it was qualified to do business in Missouri and denying that the contract was executed in Missouri. As an affirmative counterclaim, the defendant averred that on or about September 10, 1974, the parties entered into a written contract, which was incorporated by reference as an exhibit, by the terms of which defendant agreed to furnish plaintiff radio station KRFG its “Instant Library Service.” In consideration thereof, plaintiff agreed to pay the defendant $4,620, payable at $55 per month for a period of 84 months, and in addition, to furnish defendant with 3,640 one-minute spots in broadcast time, which were to be delivered to the defendant in the “same manner as cash.”

It was further alleged in the counterclaim that: 1) defendant had furnished all materials and services required by the contract to the date of pleading, and remained willing and able to perform; 2) that plaintiff had made no payment on the contract and the sum presently owed the defendant was $4,620, of which $495 was currently due; 3) that plaintiff had refused and continued to refuse to permit defendant to utilize any of the 3,640 spot announcements to which the defendant was contractually entitled, and that the total value of the spot announcements to defendant was $2.75 each, therefore the current value of the service promised by plaintiff was $10,010; 4) that because of plaintiffs anticipatory breach, defendant had been unable to use Radio Station KRFG as a “trade” station, to defendant’s damage in the amount of $20,000; 5) that because of plaintiff’s anticipatory breach of its contract, defendant had been required to purchase other advertising, to defendant’s damage in the amount of $5,000. Prayer of the counterclaim was for $39,630 plus attorney’s fees and expenses. On October 20, 1975, plaintiff filed an answer to defendant’s counterclaim. With the filing of this answer on October 20, 1975, the cause was technically at issue in the Circuit Court of Dade County. Plaintiff does not object to dismissal of the claim. It is the propriety of dismissal of the counterclaim which is in issue on this appeal.

On the same day it filed its answer to defendant’s counterclaim plaintiff served interrogatories on the defendant. The questions propounded to defendant included a question whether the serial notes had been received by the defendant, and other matters. Upon motion to compel answers, defendant answered on November 25, and the answers indicated a response that defendant had received no promissory notes. On January 9, 1976, the defendant moved the court for a change of venue and a change of judge. The motion was granted and the cause ordered transferred on January 23, 1976. The files were received in the Circuit Court of Lawrence County on January 29, 1976.

No further docket entry appears until February 23, 1977, when the plaintiff’s attorney moved to withdraw, representing that plaintiff had secured other counsel. On March 11, 1977, the motion was granted. No further activity is apparent until June 2, 1978, when counsel for defendant addressed the clerk of the court as follows:

“This case is on your dismissal docket, but is very much a live case. Interrogatories are still being exchanged, and the case is one which will be tried on plaintiffs petition and on defendant’s counterclaim. If there is any further showing which need be made to be sure that the case is not dismissed, please let me know by collect telephone call so that I may file whatever pleadings are required.”

Contemporaneously with this letter, a set of interrogatories was drafted by counsel for the defendant and served upon the plaintiff; the filing date was June 5. The interrogatories propounded were directed to the value of “spot announcements” at various times, and to the plaintiffs version of its negotiations with defendant. On July 5, 1978, these interrogatories were answered. On July 20, plaintiff filed a motion to compel an answer to one of the questions which had been propounded to the defendant as part of plaintiffs interrogatories of October 20, 1975. Plaintiff also filed a second, supplemental set of interrogatories, requesting information concerning receipt of the promissory notes plaintiff allegedly delivered to the defendant.

On October 11, 1978, counsel for defendant addressed the clerk of the court, advising the court that plaintiff had filed a motion to require the defendant to produce a financial statement (part of the plaintiffs original interrogatories, as just noted) and continued:

and we have agreed with plaintiff that such a motion may be sustained without objection on proviso that the financial statement not be filed in the court records for public inspection, but that the statement simply be provided to counsel for his use in necessary trial preparation. In fact, I requested such a statement from my client about a month or six weeks ago, and apparently that request has benen [sic] lost in the corporate shuffle somewhere. Today I am writing them to remind them to furnish that. I’d be obliged if the court could grant thirty days to allow for the mail and some shuffling around in Nashville.”

On November 13, 1978, counsel for defendant wrote the circuit clerk, assuring her that by agreement with counsel for plaintiff, defendant’s August 31, 1975, balance sheet had been furnished to plaintiff, and it was his understanding that he need not further supplement the defendant’s answers to the plaintiff’s first set of interrogatories.

On June 11, 1979, defendant’s counsel requested a trial setting during the court’s September term. On June 13, 1979, plaintiff’s counsel, in vigorous protest, moved the court to compel defendant to answer such of plaintiff’s interrogatories as remained unanswered. It will be recalled that the unanswered interrogatories dealt with the serial notes given by plaintiff to defendant. Finally, on December 11, 1979, defendant acknowledged receipt of 7 promissory notes in the amount of $660 each, adding conclusionally that “[s]aid notes were not received ‘in payment’ for services provided ... but merely evidenced the cash debt of Four Thousand Six Hundred Twenty and 00/100 Dollars ($4,720.00).” With respect to negotiation, defendant answered that it had not negotiated any of the notes. Counsel for defendant advised the clerk (having earlier asked for a September setting) that he and counsel for plaintiff had agreed the case might be “passed” at the January 1980 term so the parties could obtain depositions from out-of-town witnesses.

1980 passed without docket entry but on March 7, 1981, defendant’s counsel gave notice to take plaintiff’s deposition. Plaintiff’s counsel responded by giving notice to defendant to produce Zack Hernandez, defendant’s vice-president, for deposition at the same time. On June 25, 1981, counsel for defendant addressed the trial court by letter, noting that the cause had been set for trial or dismissal. Defendant’s counsel continued:

“[Opposing counsel] and I would like to try the case sometime during the week of November 16, November 23, or December 7, if any of those weeks is convenient to you. We have selected a substantial lead time for the trial because there is a question in the case which may require your judicial intervention before matters proceed. I have previously noticed [plaintiffs counsel] to give a deposition in the case, and he has responded by noticing me to produce a vice president of the William B. Tanner Company there in Greenfield for a corresponding deposition at the same time. I suspect we will go through that same procedure again, as soon as I find a deposition date convenient to Mr. Watkins, and when the notice to take Mr. Hernandez’ deposition comes in again I will probably be filing a motion to quash the notice on the grounds that Hernandez knows nothing about the matter and that it is burdensome to produce him for that reason. You may have to rule on that motion. Depending on which way that ruling goes, we have allowed the lead time noticed here so as to accommodate Mr. Watkins and Mr. Hernandez’ schedules as much as possible....”

Counsel for plaintiff promptly responded, stating to the court that defendant’s counsel spoke only for himself in suggesting that the case be retained on the docket. Counsel for plaintiff went on to say that plaintiff was amenable to having the cause tried at the times suggested by defendant’s attorney, i.e., in November or early December 1981, provided discovery could be completed by that time. Otherwise, counsel indicated he intended to move for dismissal.

On June 29, 1981, the trial court addressed both attorneys by letter, stating that it had not had time to review the file, but:

“... In any event, since the dismissal docket for Lawrence County has been out several weeks, I feel because of the age of the case, [the claim] together with [the] counterclaim, if any, should be dismissed on June 30th, for lack of prosecution, but without prejudice. By copy of this letter I am so instructing the Circuit Clerk to make such an entry.
Either party may file a motion to reinstate in accordance with my rules and I will rule on [the] same ex-parte.”

The court went on to say that if the case were reinstated, it would be set for trial at some time during its September term. The court further indicated its desire to cooperate with the parties as far as the time schedules were concerned, stating it could give no ironclad assurances that the case would be set for hearing on one of the dates requested.

The next docket entry is dated July 22, 1981; the docket sheet indicates that a motion to reinstate the case on the docket was filed. This motion was supplemented, and the “suggestions” filed by defendant’s counsel in support of the supplemental motion to reinstate the case represent to the court, among other things, that: a) the case had been delayed due to the difficulty of keeping track of a key witness, the witness who conducted the original sales interview with the plaintiff; that this witness had now been located in the Los Ange-les area, and arrangements had been made either to preserve this witness’ testimony or obtain his presence at the trial; b) that the case involved a Memphis corporation, Memphis attorneys and a missing witness in Los Angeles, California, all of which had contributed, together with the difficulties of obtaining records of the transactions, to the delay in getting the action litigated; 3) that no damage had resulted to any party, and d) that the case could be tried by December 31, 1981. Some vigorous suggestions in opposition to the motion to reinstate were filed by the plaintiff, but they shall not be set out at length here.

On July 29, 1981, the trial court addressed a letter to counsel for both parties, indicating that although it had considered dismissing the case for lack of prosecution, no docket entry had been made and it was of the opinion the cause was still pending. The court stated unequivocally that the case would be set for trial at some time “during the September term at Mt. Vernon which commences on September 14th.” The file indicates that the trial was set for December 1, 1981.

Thereafter on August 17, defendant wrote counsel for plaintiff, stating that he had made arrangements to take the deposition of plaintiffs counsel and Mr. Zack Hernandez, an officer of the defendant company. Defendant’s counsel asked for the production of certain relevant materials, and indicated defendant would produce such of the promissory notes as it had in its possession. After the original record was filed here and after the original opinion was withdrawn, counsel for defendant sought to supplement the record to show that the deposition was taken. Counsel for plaintiff joined in the stipulation to supplement the record only to the extent of agreeing that a deposition was taken. The supplementation indicates only that a deposition was taken, in Memphis, on 17 November 1981. The deposition was not filed, and counsel for plaintiff does not concede that the documents which defendant agreed to produce were produced.

In any event, plaintiff had propounded further interrogatories to defendant on October 6,1981. These interrogatories had to do with and requested information concerning paragraphs 4, 6 and 7 of defendant’s counterclaim, and plaintiff asked defendant to state its net worth. On October 9, counsel for defendant addressed the trial court by letter. The letter begins thus:

“Judge, you have us set for a pretrial conference in this case on October 22. The case is set for trial to start December 1.
The counterclaim in the case is brought by William B. Tanner Company, and includes a count seeking recovery on seven promissory notes. We took seven notes, identical except for the payment dates, as part of the purchase price in selling Mr. Watkins’ radio station what we call our Instant Library Service.
In the meantime, my client has lost five of the original notes, and we can only produce two of the originals. John Watkins admits execution of the seven original notes, so there is no dispute about their terms or conditions, just their whereabouts.... ”

Counsel went on to propose that loss of the serial notes be proved by affidavit, and filed defendant’s affidavit, alleging, among other things: a) that none of the seven notes had ever been negotiated; b) that the remaining five notes had been lost or mislaid and could not be located by the defendant. This affidavit was dated April 11, 1980, and was filed in court on October 13, 1981.

We gather from the correspondence that some kind of pretrial conference was set for October 22, 1981. We cannot say whether a pretrial conference, in the usual sense, was held, for no order appears anywhere in the file. However, on November 5, defendant’s counsel filed a document entitled “Defendant’s Answers to Plaintiff’s Interrogatories.” This document consisted principally of objections to the Interrogatories filed by plaintiff on October 6. Defendant’s counsel indicated that defendant had not, but would dismiss, part of its counterclaim. On November 13, defendant’s objections to plaintiff’s interrogatories were overruled and defendant was given 10 days to answer. On November 25, plaintiff’s counsel advised the trial court that its interrogatories had not been answered, stating that:

“Since your order of the 13th was as required by Rule 61.01(b)(2), I believe this operates as a dismissal of defendant’s counterclaim....”

On the same day, the trial court advised the clerk that because plaintiff had not received answers to his interrogatories, the cause could not be tried December 1, 1981, but stated in unequivocal terms that the case would be set during the January 1982 term of court. The court also advised counsel that the case was becoming a sore spot and that he intended to bring the matter to trial.

On December 2, 1981, defendant answered the interrogatories propounded by plaintiff in October. These answers were made subject to the objection that they were privileged, and subject to other objections that defendant’s net worth be kept confidential. On December 21, plaintiff filed a motion to strike defendant’s pleadings because defendant had failed to make timely answer to the interrogatories of October 6, and still refused to answer interrogatories two and three. Plaintiff also filed additional interrogatories and requested production of certain documents. On January 4, the defendant filed objections to the additional interrogatories and objections to the request for the production of documents. The defendant also dismissed paragraphs six and seven of its counterclaim, wherein it had claimed $20,000 in damages because it was unable to use Radio Station KRFG as a “trade station” and further claimed damages in the amount of $5,000 as a result of being forced to purchase other cash spot announcements at higher rates. In our view, defendant’s affidavit of October 13, 1981, substantially admitted payment, so we may consider that the counterclaim had been diminished in the amount of $4,620 before the partial dismissal of January 4, 1982. From and after January 4, 1982, therefore, defendant’s counterclaim consisted of a claim that it had been damaged in the amount of $10,010 because of plaintiff’s refusal to use the spot announcements defendant had furnished.

On January 29, 1982, counsel for defendant wrote the trial court as follows:

“This morning I received your Motion Day docket setting motions in Lawrence County on February 8.
I will be in travel status on February 8, returning to Missouri from the south, and will not arrive until well after Noon. I think we get back about 4:00 p.m. that day.
I tried to call [opposing counsel] today but could not reach him so I am writing this letter to advise that I cannot be present .... ”

Counsel went on to say that he considered “this motion” moot, because the unanswered interrogatories, or those answered subject to objection, dealt with parts of the counterclaim already dismissed. Counsel for plaintiff addressed the court on January 30, stating that he did not agree with the conclusion that the motion or motions filed were moot, but agreed to have the motions “passed over” on February 8, 1982. The motions or objections were again “passed by agreement” on April 9, 1982.

On April 8, 1983, counsel for defendant appeared in court and about that time furnished part of the information plaintiff had requested on December 2, 1981, specifically, rate schedules. Counsel for defendant also stated that various other documents requested by plaintiff in December 1981 could not be located.

The next entry we find on the court’s docket is dated July 26, 1983, and is as follows:

“Motion to Retían [sic] Case on Docket filed. Notice filed. Answers to Interrogatories filed. Defendant’s Answers to Plaintiff’s Interrogatories 2 and 3, filed October 5, 1981, filed. Rate schedule of William V. Turner Company filed.”

The motion filed by defendant at this time states:

“This matter was last before the Court in April 1983 for argument of supplemental discovery motions. At that time [plaintiff’s counsel] was not present in Court, for the asserted reason that he received no notice of the law day setting.
Counsel has contemporaneously filed answers to outstanding discovery requests.
Counsel believes that all discovery has been completed and that the case may be set on the Court’s winter calendars [sic] and tried prior to the first of the year....”

Notice of hearing on this motion was given by defendant’s counsel to plaintiff’s counsel on July 26, 1983. Plaintiff filed suggestions in opposition to retaining the case on the docket, noting among other things that defendant had taken depositions on August 21, 1981, and since that time had made no effort to move the cause toward trial.

On July 26, 1983, another member of the firm representing defendant locally advised the court that the attorney who was handling the case was out of the city, but was expected to return on August 3 or 4. The court was asked not to take any action until the attorney who was attending to the case returned. A notice for hearing of the motion to retain on the docket was given to plaintiff’s counsel; the matter was set for August 12, 1983.

On August 12, 1983, the following docket entry was made:

“Plaintiff has two weeks to file specific objections. Defendant is to have dates available for trial setting. This case is to be placed on next Law Day Docket.”

On August 24, 1983, plaintiff again propounded interrogatories to the defendant, to which defendant objected on September 2. Plaintiff again moved for dismissal for failure to prosecute.

On August 24,1983, the trial court wrote both attorneys indicating that he had been ill and that the entry of August 12, 1983, had been made by an Associate Circuit Judge. The court continued:

“Now, I am not too sure what [the docket entry of August 12, 1983] means. It was my intent on August 12th to determine whether the petition and counterclaim should be dismissed for reason of lack of prosecution. Since ... this issue has apparently not been determined I feel that ... there must be a definitive ruling as to dismissal of both the petition and counterclaim.
I am herewith setting all pending motions in this matter for September 8th at 8:30A.M. ...”

On September 8, 1983, the trial court made the following entry:

“Counsel for both parties appear and argue issue of whether petition and counterclaim should be dismissed'for lack of prosecution. Court finds that since case has been pending since 1975 and that ... the case has been on the dismissal docket on more than one occasion that the case should be dismissed for lack of prosecution. Plaintiff’s petition is dismissed with prejudice and defendant’s counterclaim is dismissed with prejudice for lack of prosecution....”

Some further entries were made; we shall notice these as material to the appeal.

An explanatory preliminary word is appropriate. The original record on appeal filed in this case was doubtless sufficient to comply with the rules of appellate procedure, but for the most part it consisted of selected documents and a dreary list of docket entries. To reiterate, the vigorous motion for rehearing which was filed caused this court to exercise its discretionary right to supplement the record. See present Rule 81.12(e); Donati v. Gualdoni, 358 Mo. 667, 671-72, 216 S.W.2d 519, 520-21[2] (1949); Lange v. Baker, 377 S.W.2d 5, 7[2] (Mo.App.1964). It was therefore ordered that the circuit court’s whole file be sent forward so this court might obtain a better understanding of the particular facts of the case. The contents of the record have been recited at tedious length, as this court has been able to understand them.

Reciting general rules concerning the dismissal of cases for lack of prosecution would serve very little purpose. As the appellant argues, this court has held on several occasions that delay in prosecuting an action does not, of itself, justify dismissal for failure to prosecute. Laurie v. Ezard, 595 S.W.2d 336, 337[3] (Mo.App.1980). Nevertheless, delay in prosecuting an action is a factor to be considered, Esslinger v. Roach, 463 S.W.2d 861, 862 (Mo.1971), and inasmuch as an affirmative counterclaim has the nature, characteristics and effect of an independent action or suit by the defendant against the plaintiff, McDowell v. Schuette, 610 S.W.2d 29, 36 (Mo.App.1980); Standard Insulation and Window Co. v. Dorrell, 309 S.W.2d 701, 704[5] (Mo.App.1958); Cross v. Robinson, 281 S.W.2d 22, 26 (Mo.App.1955), we see no reason why the rules governing dismissal for want of prosecution should not apply to affirmative counterclaims as they do to the plaintiff’s claim itself. It is true that both the first sentence of our Rule 67.02 and Fed.R.Civ.P. 41(b) in terms provide a remedy for a defendant, but it is generally agreed that both rules merely partially codify an inherent power of the trial court which exists in the absence of statute or rule. Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Guhman v. Grothe, 346 Mo. 427, 430, 142 S.W.2d 1, 2[2] (1940); Wiles-Chipman Lumber Co. v. Pieper, 176 S.W.2d 50, 52[2] (Mo.App.1943).

As this court observed in Laurie v. Ezard, 595 S.W.2d at 338, whether a claim has been diligently prosecuted must be decided on a case by case basis. However, a lengthy period of delay may be enough to warrant dismissal if the party has been warned that he must act with more diligence. See West v. Gilbert, 361 F.2d 314, 316[4, 5] (2d Cir.1966), cert. denied 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966). 9 Wright and Miller, Federal Practice and Procedure § 2370, p. 206 and authorities cited marginally n. 8 (1971).

Our inspection of the trial court’s record indicates that this cause was first placed on a dismissal docket June 30, 1979. For whatever reason, the cause was reinstated, and counsel for defendant stated his understanding was that the case would be set for trial sometime during the September 1979 term of the Lawrence County Circuit Court. On July 1, 1981, the trial court indicated it believed the cause should be dismissed, but without prejudice. The court further instructed the clerk to make such an order, but on July 31,1981, counsel were advised that the cause would be retained on the docket. The trial court advised the parties to be present in court for a trial setting on September 14, 1981. The matter of a trial setting dragged on until February 8, 1982, because of pending motions; counsel agreed at that time the matters pending might be “passed over.” Two years later, the cause was again put on a dismissal docket; in August 1983, an associate circuit court judge, acting during the illness of the regular judge, ordered the defendant to “have dates available for trial setting at the next motion day.” However, the trial court, by its letter of August 24, 1983, warned counsel in the strongest terms that it was his intent to determine whether the petition and counterclaim should be dismissed for lack of prosecution. On September 8, the parties appeared and argued the question. The trial court concluded that both the claim and counterclaim should be dismissed with prejudice for failure to prosecute. Of course, counsel for defendant upon motion to reconsider announced it could try the case at any time upon 30 days’ notice pending completion of discovery, but counsel had been making such assurances since 1979.

The ultimate and dispositive question before this court is whether the dismissal constituted an abuse of discretion. There is an abuse of discretion when the trial court’s ruling is clearly against the logic of the circumstances then before the trial court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. However, if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448-49[2] (Mo. banc 1976); James v. Turilli, 473 S.W.2d 757; 763 (Mo.App.1971); Anderson v. Robertson, 402 S.W.2d 589, 593[3, 4] (Mo.App.1966). Applying the forgoing standard to the particular facts of this case, we cannot say the trial court abused its discretion. Accordingly, the judgment is affirmed.

PREWITT, J., and FLANIGAN, Alt.J„ concur.

MAUS, P.J., recuses.

      . The CEO of Watkins Investment Co., owner of Radio Station KRFG, represented himself at this time.


author: CRANDALL, Judge.

text:
    Raymond KLINE, Jr., and Marian E. Kline, his wife, Appellants, v. BOURBON WOODS, INC., a Missouri Corporation, Respondents.
    No. 48147.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 22, 1985.

      Donald A. Hale, Steelville, for appellants.
    G. William Weier, Crystal City, for respondents.
   CRANDALL, Judge.

Plaintiffs appeal from a judgment, entered on a jury verdict, in favor of defendant on plaintiffs’ claim for treble money damages for timber removal, and in favor of defendant on its counterclaim for ejectment.

Plaintiffs allege seven points of error: (1) Instruction No. 10, defendant’s verdict-directing instruction on its counterclaim, should not have been submitted as there was insufficient evidence of adverse possession to support the giving of the instruction; (2) the term “adverse possession” should have been defined for the jury; (3) the term “title” should have been defined for the jury; (4) there was no legal description of the property in Instruction No. 10; (5) the court could not enter a judgment which included a legal description because the jury had not made a finding on such a description; (6) defendant failed to make a submissible case on its counterclaim; and (7) there were indispensable parties not joined in the action. We affirm.

Plaintiffs Raymond Kline, Jr., and his wife Marian Kline acquired Lot 2 of the Northwest Quarter of Section 4 and the South 80 acres of the Northwest Quarter of Section 4, Township 38 North, Range 1 West of the 5th Principal Meridian in Washington County, Missouri, along with other land, in February, 1979. The land is wooded. Mr. Kline noticed some time after the firearms deer season of November, 1980, that timber had been cut from what he believed to be his property.

The trees had been cut at the direction of Bourbon Woods, Inc., a corporation made up of members of the Kreikemeier family. The corporation owned land in Section 5 adjacent to and immediately west of the Klines’ property.

The Klines filed suit claiming damages for the trees which had been cut. Bourbon Woods filed a counterclaim and alleged at trial it was the owner of the land where the trees had been cut, either by title or adverse possession.

The dispute, then, centers around the boundary line between the property owned by the Klines and the Bourbon Woods property. If the boundary is where Bourbon Woods claims, then plaintiffs have no cause of action for damages.

The jury found for the defendant on plaintiffs’ claim for damages and for defendant on its counterclaim, finding it had a superior right to possession of the property where the trees were cut.

The bulk of the evidence at trial consisted of expert testimony by surveyors. Plaintiffs’ expert testified that the boundary line of the property was at a point approximately 335 feet west of the boundary claimed by defendant’s expert. This 335 foot-wide strip is the land in dispute.

Plaintiffs first claim error in the giving of Instruction No. 10, because of insufficient evidence of adverse possession. The instruction is as follows:

Your verdict must be for Defendant or [sic] Defendant’s Counterclaim if your [sic] believe:
First, Plaintiff was in or claimed possession of the premises claimed by Defendant when the action was commenced, and
Second, Defendant had the right to possession of the premises on that date by reason of Defendant’s title or by reason of open and adverse possession under claim of title for more than 10 years prior to Plaintiffs’ suit.

The second paragraph of this instruction hypothesizes recovery by the defendant in the disjunctive, i.e., title or adverse possession. “It is well settled that each element of an instruction phrased in the disjunctive must be supported by substantial evidence.” McCoy v. Hershey Chocolate Co., 655 S.W.2d 128, 180 (Mo.App.1983).

To support an adverse possession claim, “(1) the possession must be hostile and under claim of right; (2) possession must be actual; (3) possession must be open and notorious; (4) possession must be exclusive; and (5) possession must be continuous for the requisite period.” Lacy v. Schmitz, 639 S.W.2d 96, 99 (Mo.App.1982).

Defendant’s evidence was that Mr. Kreikemeier purchased the land in Section 5 to fulfill a dream of having a place in the woods where the family could get together. Mr. Kreikemeier’s son testified: “All of us in the family through that period spent all of our excess time down there.” Then this exchange took place:

Q. In 1965 until 1979, can you tell me what use the family made of the property?
A. The use has been pretty intense in terms of what it was bought for, and that was a gathering place for the family, an awful lot of hiking, hunting. We have a jeep down there that we use to run around. The kids, particularly my children spend hours running around, hiking, shooting, whatever.
Q. Did you use the property up to this blazed line that you spoke of?
A. Yes.

This was enough to make a submis-sible case of adverse possession, supporting the giving of Instruction 10. Plaintiffs claim there was no evidence of the third element of adverse possession, that it be open and notorious. We disagree. The nature of this land, which was rough and wooded, must be taken into account. Teson v. Vasquez, 561 S.W.2d 119, 125 (Mo. App.1977). “The possession must be as notorious as the nature of the land will permit.” 2 C.J.S. Adverse Possession § 49, at 714 (1972). The open and notorious requirement can be met by showing actual knowledge of the owner, which was not shown here except for the single act of cutting the trees. “If actual knowledge is not proved then the claimant must show an occupancy so obvious and well recognized as to be inconsistent with and injurious to the real owner’s rights that the law will authorize a presumption from the facts that he had such knowledge.” Teson, 561 S.W.2d at 127. Knowledge or notice in such cases has been held to mean knowledge of all that would be learned by reasonable inquiry. Johnson v. Moore, 346 Mo. 854, 143 S.W.2d 254, 256 (1940). This requirement was met by the evidence of the use made by the Kreikemeier family. Plaintiffs’ first point is denied.

Plaintiffs’ next two points allege error in Instruction 10 in that the terms “adverse possession” and “title” were not defined. It has been stated that “a trial court must define for the jury legal or technical terms occurring in the instructions.” Brock v. Firemens Fund of America Ins. Co., 637 S.W.2d 824, 827 (Mo.App.1982). “Probably the better solution of the problem would be to hypothesize facts which constitute the elements [of the cause of action] and thus avoid use of the term.” Wright v. Edison, 619 S.W.2d 797, 802 (Mo.App.1981).

In Wright the court, in dictum, stated that the term “trespass” has a technical legal meaning and if used in an instruction should be defined. Plaintiffs argue by analogy that “adverse possession” and “title” are terms with technical legal meanings, and thus should be defined.

Conceptually it should be noted that Instruction No. 10 is not legally incorrect. It follows the language of MAI 27.01 and properly states the law. Thus we do not have the situation where plaintiffs can rely on Rule 70.03 and raise instructional error for the first time in an after-trial motion. See Fowler v. Park Corp., 673 S.W.2d 749 (Mo. banc 1984), and Hudson v. Carr, 668 S.W.2d 68 (Mo. banc 1984), for recent limitations of that rule.

Here plaintiffs’ complaint is that the instruction lacked sufficient specificity. If plaintiffs believed that the instruction was too general in nature, it was their duty to offer a more specific one. Cox v. Blossom, 565 S.W.2d 851, 858 (Mo.App.1978); Gallaher-Smith-Feutz Realty, Inc. v. Circle Z Farm, Inc., 545 S.W.2d 395, 400 (Mo.App.1976). “[A]n adverse party will not be heard to complain in the absence of a request for a more specific instruction where an instruction is correct in its general scope and does not amount to misdirection....” Zalle v. Underwood, 372 S.W.2d 98, 103 (Mo.1963). See also Carter v. Consolidated Cabs, Inc., 490 S.W.2d 39, 43 (Mo.1973), where the court stated “not all omissions of definition are reversible error.”

In the present case there was no misdirection. The error, if any, was one of omission. Although plaintiffs voiced several objections to Instruction 10 at the instruction conference, they did not request or offer a more specific instruction. Having failed to do so, they cannot now complain in their post-trial motion or on appeal. Assuming, without deciding, that the terms complained of have a technical legal meaning, plaintiffs have waived any error of lack of definition where definition is not mandated by MAI. Further, we have reviewed the closing arguments in the record and can find no prejudicial impact of the instructions on the jury. Fowler, 673 S.W.2d at 756. Plaintiffs’ second and third points are denied.

Plaintiffs’ fourth point claims error in giving Instruction No. 10 because there was no instruction to the jury regarding the legal description of the land at issue in the case. Plaintiffs claim that this is important because there was no indication whether the jury found for the defendant on the title or adverse possession theory. We find no merit in this claim. We can find no dispute between the parties as to the area of land in dispute. Plaintiffs’ expert testified the boundary was at a given point. Defendant’s expert testified the boundary was at a different point. The land between these two points was in dispute. A legal description was not necessary. To require this would violate Rule 70.02(a) which states that instructions “shall not submit to the jury or require findings of detailed evidentiary facts.” Whichever theory the jury used, the land found to be possessed by defendant would be the same.

Plaintiffs’ fifth point alleges error in the entry of the judgment. The court’s judgment states the defendant is entitled to possession of the property, and it then gives a legal description of the property. Plaintiffs contend since the verdict form does not include such a description, the court was resorting to inference and speculation to enter the judgment, and the judgment was thus erroneous. This point has not been preserved for appeal. This issue is raised for the first time in Plaintiffs’ Supplemental Alternative Motion for New Trial, filed November 22, 1983, more than two months after entry of the judgment on September 13. The motion supplemented a timely filed post-trial motion filed September 27,1983. This supplemental motion for new trial, filed more than fifteen days after the judgment was entered, preserves nothing for review. State v. Berry, 609 S.W.2d 948, 951 (Mo. banc 1980). Assuming ar-guendo that it was preserved, we find it without merit. In Huter v. Birk, 510 S.W.2d 177 (Mo.1974), the trial court in its judgment described an easement to which plaintiffs were entitled. The appellants asserted the only judgment the court could enter would be one reciting the general verdict of the jury. The supreme court stated that “it is obvious that in a case such as this, where the issue submitted related to the rights of one party in and to lands of the other, the judgment must do more than simply recite the general verdict of the jury.” Id. at 182. Plaintiffs’ fifth point is denied.

Plaintiffs’ sixth point claims defendant failed to make a submissible case on the counterclaim. This is essentially the same issue addressed m plaintiffs first point and the discussion will not be repeated.

The last point raised by plaintiffs is that the court could not enter judgment because indispensable parties had not been joined under Rule 52.04. The alleged indispensable parties here are James Bryan and other landowners whose land is adjacent to the south of the property in dispute. This ejectment action only adjudged the right to possession of the property as between the parties rather than title. City of St. Charles v. De Sherlia, 303 S.W.2d 32, 34 (Mo.1957). The judgment in no way affected the interest of any other landowner. Therefore the other landowners were not indispensable parties to this action. Plaintiffs final point is denied.

The judgment of the trial court is affirmed.

DOWD, P.J., and CRIST, J., concur.