author: NUGENT, Judge.

text:
    James T. HOLT, Jr., a Minor, Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Corporation, Respondent.
    No. WD 35201.
    Missouri Court of Appeals, Western District.
    Nov. 27, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      James Carey Thompson, Farrell D. Hock-emeier, and Stanley M. Thompson (argued), Driskill & Thompson, Richmond, for appellant.
    Thomas M. Deacy, Kansas City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   NUGENT, Judge.

James Holt, the equitably adopted minor son of Ann Holt, sued defendant, Burlington Northern Railroad, for the wrongful death of Ann Holt. Defendant filed a motion for summary judgment on the ground that James Holt is not the adopted son of the deceased within the meaning of § 537.080(f). The court sustained defendant’s motion and plaintiff appeals. We reverse and hold that a child who has been equitably adopted is an adopted child for purposes of § 537.080(1).

On June 10, 1981, defendant's train struck and killed Ann Holt in her car. In addition to plaintiff, several brothers and sisters survived her. They also have sued the defendant for wrongful death. Their claims are not before us.

Ann Holt’s sister gave birth to plaintiff, but soon after his birth Ann and her sister orally agreed that Ann would adopt him. She took James into her home and reared him as her son until her death when he was thirteen years old. She never adopted James in accordance with Missouri’s adoption statutes. § 453.010 et. seq. Six months after Ann’s death, the probate division of the Ray County Circuit Court decreed that James is the equitably adopted son of Ann Holt. No one questions the validity of that decree, but defendant disputes its effect.

In granting defendant summary judgment, the circuit court held that Ann Holt’s equitably adopted son is not a person within the class of beneficiaries entitled to bring a wrongful death action for her death.

Plaintiff raises two points on appeal. First, the trial court erred because plaintiff is within the class of beneficiaries entitled to maintain an action for wrongful death. Second, the defendant’s motion was an improper collateral attack on the probate court’s decree of equitable adoption. Since we find that an equitably adopted child is within the class of beneficiaries entitled to bring this action, we need only address plaintiffs first point.

Appellate review of a grant of a motion for summary judgment is equivalent to the review of a court tried case or an equitable proceeding. If as a matter of law the trial court’s determination is sustainable upon any theory, the appellate court must affirm. Snowden v. Northwest Missouri State University, 624 S.W.2d 161, 165 (Mo.App.1981). The only question before us is one of law, and we hold that the trial court’s determination is not sustainable upon any theory.

Our resolution of this question is based on our construction of the Missouri wrongful death act, § 537.080, et seq., and the intent of the legislature in adopting the act. We do not, and cannot hold that the equitably adopted child has an equal legal status with the legally adopted child. In this state the equitably adopted child does not have all the legal rights afforded the legally adopted child, and we do not intend to disturb that principle. Goldberg v. Robertson, 615 S.W.2d 59 (Mo.1981) (en banc).

Defendant maintains that Goldberg is controlling and requires that we affirm the trial court. In Goldberg the supreme court was faced with the issue whether an equitably adopted child was a “legally adopted” child for purposes of the Missouri inheritance tax statute. § 145.060.1(1) (repealed 1980). The director of revenue appealed a decision that an equitably adopted child qualified as a legally adopted child within the terms of § 145.060.1(1). The supreme court reversed, holding that, under the statute, an equitably adopted child did not so qualify.

The dual bases of the Goldberg decision distinguish it from our case. First, in its effort to find the reason the legislature used the words “legally adopted child” in the tax statute, the supreme court examined the development and nature of legal and equitable adoption in Missouri.

The court briefly traced the development of legal adoption to the present system which gives the juvenile court exclusive jurisdiction over adoption. Under the present adoption statutes the legally adopted child is removed from the blood line of his natural parents and afforded full legal status as the natural child of his adoptive parent. § 453.010, et seq.

The supreme court then went on to discuss the development and the nature of equitable adoption in Missouri. All the cases cited by the court deal with the issue of the equitably adopted child’s rights of inheritance. The rule that has emerged is that the equitably adopted child is the heir of his adoptive parent but not an heir of the collateral kin of the adoptive parent. Id. at 62, and the cases cited therein.

The Goldberg court also discussed the theoretical underpinnings of the equitable adoption doctrine. The theory is either that in decreeing an equitable adoption the court is specifically enforcing a contract to adopt which has been performed or that an equitable estoppel is raised to bar a denial of the fact of the adoption. Id. The reach of the decree of equitable adoption is limited to allowing the equitably adopted child to inherit from the adoptive parent but not to inherit through the collateral kin. The rights of the equitably adopted are limited in this fashion based on the theory that the court is enforcing a contract and only the parties to the agreement and those in privity are bound; the adoptive parent is a party but the collateral kin are not parties and are not in privity with the parent. Id. at 63. Further, the equitable adoption action is an in personam action binding only upon the parties to the action and those in privity, while a legal adoption is an in rem action binding on the whole world. Id.

The court also presented a second and more compelling reason for its construction of the tax statute. The court said at 61-62,

It is of special significance in this case that the same General Assembly that restricted the availability of adoptions by granting the juvenile court exclusive jurisdiction over adoption cases through S.B. 313, also created the inheritance tax section which is here in question by passage of C.S.H.B. 638, Laws of Mo.1917, p. 114....

In conclusion, at 63 the court said,

The distinction between a legal and equitable adoption and the fact that the Forty-ninth General Assembly was considering a bill providing for the adoption of children at the same time it considered the inheritance tax, make it clear that when the legislature used the words “legally adopted child” it referred only to children adopted in conformity with the statutes of this state....

We have discussed the Goldberg decision at length to show that it is a decision limited to a construction of a special inheritance tax statute. Here we are examining an entirely different statute, one which only refers to “children, natural or adopted” and not “legally adopted child ” as does the tax statute.

Goldberg’s discussion of equitable adoption is largely dicta designed to show the undeniable legal fact that the equitably adopted child does not stand equal with the legally adopted child. That unequal status coupled with the fact that the same session of the legislature that passed the adoption law enacted the inheritance tax statute led the court to conclude that the Assembly’s intent was to limit the special tax treatment of the statute to the legally adopted child.

Goldberg has no application to this case because whether or not James Holt, as an equitably adopted child, is to be accorded the full inheritance rights of a legally adopted child is not in issue. But Goldberg and the cases it cites do stand for the principle that the law does recognize some type of legal relation with some attendant legal rights between the equitably adopted child and parent. We must determine here whether the legislature intended to include the equitably adopted child within the phrase “children, natural or adopted” in the Missouri wrongful death provision, § 537.080(1). Goldberg has not answered that question.

Defendant also relies heavily upon Goldberg’s citation (615 S.W.2d at 63) to Me-nees v. Cowgill, 359 Mo. 697, 223 S.W.2d 412, (1949), where at 418 the court said that:

[i]f Guy M. Cowgill had legally adopted appellant in compliance with the statutory requirements, the adoption would have been binding on all persons, including the respondents, but in an equitable proceeding based upon contract, only the parties thereto, or those in privity with them are bound. Equity acts only against specific individuals and, in such case, one person may be bound and not another. A decree of equitable adoption merely forecloses “the parties to the suit against a denial of the status that the court declares” and the status decreed exists only in equity and against the judgment defendants. As between appellant and. the respondents, appellant was not, in either law or equity, the adopted child of Guy M. Cowgill by reason of his contract to adopt her and the facts and circumstances admitted.

Defendant argues that since it was not a party to the equitable adoption, it is not bound by it and therefore James Holt is not an “adopted child” for purposes of the statute.

The defendant’s argument is flawed. The Meenes decision and other equitable adoption cases concern the rights of the adoptive child in reference to the collateral kin. The adoption does not bind the collateral kin because of the principle of privity which is a contract concept. But an action for wrongful death is ex delicto and not ex contractu. State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 147 (Mo.App.1974).

Even though equity only binds the parties to the suit, it does, as it has in this case, recognize a relationship between adoptive child and parent. A wrongful death action provides a cause of action for the severance of a relationship by death between certain statutorily designated classes of parties. See Davis, Wrongful Death, 1973 Wash.U.L.Q. 327, 331-37, for a discussion of the theoretical bases of wrongful death actions. Cf. O’Grady v. Brown, 654 S.W.2d 904, 911 (Mo.1983) (en banc). In O’Grady, the court held (at 911) that the revisions in the statute in 1979 providing for recovery for loss of society and companionship changed the statute’s focus. The question we must resolve is whether the legislature intended to provide a cause of action for the severance of the relationship between the equitably adoptive parent and child. In other words, is a cause of action for wrongful death one of the limited rights afforded the equitably adoptive child or parent?

Since the passage of Missouri’s first wrongful death act in 1855, the courts have consistently held that wrongful death is a statutorily created action in derogation of the common law and must be strictly construed. The cases following this rule of construction are too numerous to cite. See 10 Missouri Digest and 17 Missouri Digest 2d, Topic: Death, Key No. 9. The respondents rely heavily upon that rule of construction, but the decision in O’Grady has reinterpreted the rule.

In O’Grady, the supreme court held that strictly speaking a wrongful death action is not in derogation of the common law because it does not eliminate a common law right, it only “mends the fabric of the common law,” that the wrongful death statute is a remedial act and should not be strictly construed but should be construed with a view to promoting the apparent objectives of the act. Id. at 908. The court discussed with approval, Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), and the proposition that no present public policy discourages recovery for wrongful death. Id. The supreme court also regarded as significant that the legislature has continued to incorporate common law principles as the basis of- entitlement to a wrongful death action. “This patently indicates that the legislature did not intend to occupy this field of law entirely, leaving no room for the judicial development of wrongful death remedies.” Id. at 911.

Accordingly, we construe § 537.080 (1) in light of O’Grady as a remedial statute not in derogation of the common law.

But do the purposes of the statute allow an equitably adopted child to have the action for wrongful death an adopted child has under § 537.080(1)? In O’Grady the court (at 908) found that the statute has three basic objectives: to compensate bereaved persons for their loss, to ensure that tortfeasors bear the cost of unsafe activities, and to deter harmful conduct which might lead to death. Needless to say, to allow James Holt to bring this action would serve all three purposes: compensation, penalty, and deterrence.

James Holt is obviously one who would be bereaved by the death of Ann Holt. But the wrongful death act does not provide an action for everyone who suffers a loss because of death; it specifies a limited class of party beneficiaries. § 537.-080(1)(2)(3). The question is whether one who has been judicially decreed to be an equitably adopted child is in the class of plaintiff beneficiaries designated in the statute.

First, the wrongful death act was substantially amended in 1979, especially in the expansion of the scope of damages recoverable under the act permitting recovery for loss of society and companionship. § 537.090. The court in O’Grady found that this revision changed the focus of the statute and that the legislature intended that the courts construe the statute to give effect to the change.

As we have stated earlier, the wrongful death act provides recovery for the severance of a relationship between certain designated parties. Davis, Wrongful Death, supra. In this case the fact of the equitable adoption at least establishes the existence of a legally recognized relationship between the adoptive parent and child, Ann and James Holt. Goldberg v. Robertson, supra. That is the relationship which the statute protects, and it does so even though the defendant was not in privity with the parties to the agreement. The defendant’s action is alleged to have ended the relationship. The plaintiff here was reared from infancy as the son of the decedent. We may reasonably assume that the loss of his equitably recognized mother-in-fact caused him to suffer such damages as loss of society, companionship and guidance within the meaning of the statute. Allowing James Holt to bring this cause of action gives effect to the statute’s change in focus and furthers the legislative intent. O’Grady, supra.

Obviously, we cannot hold that this plaintiff has suffered such damage as a matter of law, but we can and do hold that he had the type of relationship with the decedent in which one may reasonably assume such damage was incurred. James Holt still must prove his damage at trial. The lack of a legal, formal adoption occasioned by the failure of the equitably adoptive mother should not be charged to a child who has suffered the type of losses for which the statute provides recovery. As the Goldberg decision mentions, equitable adoption is based upon a contract the purpose of which is the protection of the child. Goldberg v. Robertson, supra, 615 S.W.2d at 62. Our decision here is consistent with that purpose.

The intent of the General Assembly to include the equitably adopted child within the class of adopted child plaintiff beneficiaries entitled to sue for wrongful death is further evidenced by the amendments of the act over the years. The 1889 version of the statute, § 4426, authorized a minor child of a deceased parent to bring the action as follows:

First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased: Provided, that if adopted, such minor child or children shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption; or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, if such deceased unmarried minor shall have been duly adopted according to the laws of adoption of the state where the person executing the deed of adoption resided at the time of such adoption....

Adoption by deed was the statutory or legal means of adoption in effect in 1889. The same language was included in the 1939 and the 1955 revisions of the statute. § 537.080(2) (1959). In 1967 the act was once again amended as follows and reference to adoption by deed was deleted:

(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; provided, that in any such action the petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under this subdivision; and provided, further, that only one action may be brought under this subdivision against any one defendant; or....

§ 537.080(1) (1967). The present version of the statute refers to “children, natural or adopted” without providing that the adoption be legal or in accordance with the laws of the state.

When the legislature amends a statute, changing its language, it is presumed to have intended the change to have some effect, State v. Swoboda, 658 S.W.2d 24, 26 (Mo.1983) (en banc). Following the fundamental rule that a court’s primary objective in construing a statute is to discern the intent of the legislature, an amended statute should be construed on the theory that the legislature intended to make some substantive change in the law. Sermchief v. Gonzales, 660 S.W.2d 683, 683-89 (Mo.1983) (en banc).

What was the legislative intent in deleting the provision requiring that to sue a child had to be “duly adopted” according to the laws of adoption? The legislature may merely have intended to update the statute since adoption by deed was no longer the statutory method of adoption in 1967. The statutory change to adoption by juvenile proceedings was made in 1917. But if the legislature merely intended to update the wrongful death statute so as to be consistent with the current adoption procedure it had only to eliminate any language referring to adoption by deed or to have substituted language referring to legal adoption. It did not do so. Instead it dropped the provision altogether.

We conclude, therefore, that the legislature intended that, for purposes of the wrongful death act, an adopted child need not be “duly adopted” in accordance with the adoption statute. In construing a statute a fundamental precept is that the legislature acted with knowledge of the subject matter and the existing law. Bushell v. Schepp, 613 S.W.2d 689, 691 (Mo.App.1981). For that reason, we assume that when it deleted the provision the legislature knew the difference between legal and equitable adoption. It seemed to know the distinction in 1917 when it passed § 145.060, construed in Goldberg v. Robertson, supra. One of the reasons for the decision in Goldberg is that the legislature recognized the difference in passing the inheritance tax statute.

Defendant points out that the plaintiff is now living with his natural mother raising the possibility that if his natural mother is tortiously killed he would have a wrongful death action for her death. That contention pertains only to plaintiff’s damages and not to whether he has a cause of action. Recovery of pecuniary losses or the amount of monetary support provided by the decedent to the plaintiff is authorized in § 537.090. At trial, the plaintiff may not be able to show any pecuniary loss because of his present circumstances, but he can still recover for the loss of the companionship, guidance and society of his adoptive mother. § 537.090. Even if the plaintiff can show no actual damage at all, he still has a cause of action and can recover nominal damages in vindication of the suffered wrong. State ex rel. Kansas City Stock Yards Co. v. Clark, 536 S.W.2d 142, 149 (Mo.1976) (en banc).

Defendant also relies upon the ease of Sarazin v. Union R. Co., 55 S.W. 92 (Mo.1900). In Sarazin, the parents of a child allegedly adopted by deed brought a wrongful death action under § 4426 (1889). As we earlier noted, that act required that an adopted child be duly adopted according to the laws of the state where the person executing the adoption deed resided at the time of adoption. The court held (at 94) that the deceased child had not been so duly adopted and therefore the parents had no action for wrongful death.

Sarazin is distinguishable in several ways. First, the provision relied upon by the court in Sarazin has been repealed. Moreover, the principal reason for the holding in Sarazin was that the adoption had not been in conformance with the Missouri adoption statute. The court mentions the equitable adoption doctrine, but the opinion is unclear as to whether this was a theory presented by the parents or whether the court was addressing the issue sua sponte. The court’s discussion of the point is merely dictum, and the fact that § 4426 required adoption according to the statutory method was the reason for the court’s decision. Sarazin is not controlling.

Sarazin is also distinguishable and not controlling because there the court stated that equitable adoption is for the benefit of the adoptive child. The plaintiffs in Sara-zin were the parents, and the doctrine is not for their benefit but for the child’s. In our case, the child seeks the benefit of the doctrine. Finally, at the time of the Sara-zin decision, the unquestioned rule was still that wrongful death was in derogation of the common law and the statute had to be strictly construed. See Jackson v. St. Louis I.M. & S. Ry. Co., 87 Mo. 422, 56 Am.Rep. 460 (1885). As we have already pointed out, that is no longer the case in Missouri.

Defendant also raises an issue relating to when James Holt was decreed equitably adopted. The decree was not entered until six months after Ann Holt’s death. Defendant argues that a wrongful death action accrues at the time of death and vests in the highest statutory class of beneficiaries existing at that time. Crane v. Riehn, 568 S.W.2d 525, 527 (Mo.1978) (en banc). Therefore, defendant asserts, since James Holt had not been decreed equitably adopted at the time of death, the action vested in Ann Holt’s brothers and sisters cutting off his cause of action.

The argument fails because the decree does not create the adoption but only recognizes its existence. The equitable adoption in this case was based upon the theory of specifically enforcing an oral contract performed on both sides. An equitable adoption based on contract theory arises at the time of performance by the adoptive parent. Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055, 1060 (1931); McCary v. McCary, 239 S.W. 848, 850 (Mo.1922); Mize v. Sims, 516 S.W.2d 561, 566 (Mo.App.1974); Watermon v. Secretary of Health, Education and Welfare, 342 F.Supp. 968, 970 (E.D.Mo.1972). The probate court found and no one disputes that the oral adoption contract was fully performed on both sides before the decree was entered. The parent or parents perform the contract by rearing the child as they would their own child, and the child performs by acting as the child of the adoptive parents. Taylor, supra, at 1060. Ann Holt died when James was thirteen, and he had been reared as her child almost since his birth. The equitable adoption of James occurred at some point before her death, and the action vested in him when she died.

In considering this case, we cannot ignore the fact that the filial relationship necessary to this cause of action is a judicially-established and recognized fact. That relationship is based on the evidence of the parents’ undertaking but the proof will usually, although only incidentally, establish the filial love, affection, trust and dependence which largely inspire and lie at the heart of the wrongful death act. Moreover, such judicially-established relationships are not the kind to be faked or contrived to set up fraudulent claims. Our holding here recognizes only those relatively rare claims of equitably adopted children whose losses are as real and devastating as natural sons and daughters suffer upon the death of their parents.

Several other states have found no such cause of action. Grant v. Sedco Corp., 364 So.2d 774 (Fla.App.1978); Limbaugh v. Woodall, 121 Ga.App. 638, 175 S.E.2d 135 (1970); In re Estate of Edwards, 106 Ill. App.3d 635, 62 Ill.Dec. 407, 435 N.E.2d 1379 (1982); Roche v. Big Moose Oil Field Truck Service, 381 So.2d 396 (La.1980).

We have not been persuaded by those and similar decisions defendant has cited. First, in part they are limited by the application of the rule of strict construction to wrongful death statutes, Roche, supra, at 399; Limbaugh, supra, at 138; In re Estate of Edwards, supra, at 1382; Grant v. Sedco, supra, at 775, a rule no longer applicable to Missouri’s wrongful death act. O’Grady, supra. Furthermore, and more significantly, none of those cases discusses statutory changes in the wrongful death act similar to the changes made in our own statute, that is, the deletion of the requirement of formal, legal adoption by deed. Those factors are central to our holding here.

For the foregoing reasons, we hold that the legislature did not intend to preclude an equitably adopted child from bringing a wrongful death action and that allowing the action furthers the purposes of the statute and is consistent with O’Grady v. Brown, supra. James Holt, the decreed equitably adopted child in this case, is an adopted child under § 537.080(1). Accordingly, we reverse the summary judgment entered in favor of the defendant and remand the case to the circuit court for trial.

All concur.

      . All sectional references are to Revised Statutes of Missouri, 1978, unless otherwise indicated. Section 537.080 provides in part as follows:
      Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstances which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for
      (1) By the spouse or children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;

      . Section 537.090 provides:
      Damages to be determined by jury — factors to be considered
      In every action brought under section 537.-080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.

      . The statute also allows recovery for survival damages, damage the decedent suffered, as well as authorizing recovery for the plaintiffs own damage occasioned by the death. O’Grady, supra.

      . On the other hand, the Supreme court of Nevada has held that the equitably adopted child has an action for the death of the adoptive parent. The Nevada wrongful death statute gave a cause of action to a child because an equitably adopted child is an "heir" of the parent, that is, “any person entitled to inherit the estate of a decedent." Bower v. Landa, 78 Nev. 246, 371 P.2d 657, 661 (1962).


source: Caselaw Access Project

author: MANFORD, Judge. NUGENT, Judge,

license: Public Domain

text:
    Maraland SMITH, Appellant, v. HAROLD’S SUPERMARKET, INC., et al., Respondent.
    No. WD 34415.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.

    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Joseph Y. Decuyper, Kansas City, for appellant.
    James H. Ensz, Kansas City, for respondent.
    Before PRITCHARD, P.J., and MAN-FORD and NUGENT, JJ.

       Cause retransferred from the Supreme Court Sept. 14, 1984.

   MANFORD, Judge.

This is an action to recover damages for wrongful death. The judgment is affirmed.

Prefatory to the recital of pertinent facts and the consideration of the points presented to this court, a few preliminary remarks to identify the parties and to clarify the development of this case are in order at this juncture of this opinion.

Appellant (plaintiff at trial and hereinafter referred to as plaintiff) originated this action for damages based upon a claim for the wrongful death of her son, William L. Halstead, against Harold Nichols and David Nichols, d/b/a Harold’s Supermarket, and Jack Shockley. The pleadings subsequently determined that Harold’s Supermarket was a duly authorized Missouri corporation. Plaintiff filed an amended petition naming as defendants Harold’s Supermarket in its corporate capacity, and Jack Shockley. Plaintiff then entered her voluntary dismissal as to Harold and David Nichols. The capacity of defendant Jack Shockley as an employee-manager of Harold’s Supermarket has never been questioned and has never been an issue.

Respondents were defendants at trial and are hereinafter referred to as defendants. For purposes of this opinion, defendants denote both Harold’s Supermarket and Jack Shockley, and such reference shall be collective as to both defendants, except where necessary for factual clarification and then the defendants are referred to separately.

The plaintiff was awarded $30,000.00. Plaintiff filed this appeal on the basis which becomes evident from consideration of her points on appeal infra. Liability is not an issue on this appeal as acknowledged by defendants in their brief. With this acknowledgment, no factual account relative to liability is included in this opinion.

While plaintiff formally presents four points, they are readily reducible to a single point when accompanied by a consideration and discussion of how the charged error applies to varied evidentiary matters. In summary, plaintiff charges that the trial court erred in admitting records and related evidentiary matters arising from and as a result of the juvenile record of plaintiff’s deceased son, because such admission violated § 211.271(3), RSMo 1978.

In summary, the record shows that William L. Halstead (then 18 years old), the son of plaintiff, entered the defendant supermarket on September 27, 1979 on North Main Street in Richmond, Missouri. Hal-stead was apprehended by defendant Shockley for shoplifting a package of cigarettes. Shockley escorted and restrained Halstead in Shockley’s office. Shockley then called the local police. When the officers arrived, Halstead complained of pain from his neck down, along with an inability to move or feel his legs. He was removed to a local hospital, where he died 19 days later (October 15, 1979). Before he died, Halstead was examined, and the physician diagnosed a cervical fracture dislocation at C6-7, with quadriplegia and paralysis of the four extremities.

As the mother of William Halstead, plaintiff filed this suit under the Missouri Wrongful Death Act (§ 537.080 and § 537.-090, RSMo 1978) alleging alternatively negligent and intentional wrongdoing by defendants which resulted in the death of William Halstead. Plaintiff sought recovery for alleged loss of pecuniary assistance, his services, his association, his society, and the pleasure of his company and companionship, plus recovery of medical and funeral expenses incurred as a result of Halstead’s injury and death.

During the pre-trial period, defendants sought access to records and other eviden-tiary matters related to the juvenile court history of Halstead, both from a foreign jurisdiction (Illinois) and the Missouri juvenile system. Dispute over the admissibility of this evidence led to the issuance of an order by the circuit court denying defendants access to the juvenile records of Hal-stead. In response to this order, defendants sought from this court an alternative Writ óf Mandamus seeking to compel the trial court to permit defendants access to the juvenile records. In response to the alternative writ of this court, the trial court, on April 5, 1982 and by order, granted defendants access to the records.

Trial commenced on September 27, 1982, and during the course thereof, over plaintiff’s objection, the juvenile record and related evidentiary matters were admitted. Plaintiff challenged the admissibility of such records and evidence as violative of § 211.271(3), RSMo 1978. The evidence closed. Judgment was entered in accordance with the jury verdict, and this appeal followed the overruling of timely-filed after-trial motions.

Plaintiff’s first challenge is directed to the admission of the petition, entry of appearance, and the order of the Circuit Court of Madison County, Illinois (juvenile division) regarding the juvenile proceeding in People v. William Halstead. The record and order of the Illinois court revealed that William Halstead had been adjudged delinquent and was ordered placed on probation. When plaintiff and William Halstead moved to Missouri, William was placed under the supervision of the Missouri Division of Youth Services. As a result of orders of the Missouri courts (juvenile), William Halstead was twice placed in custody at the Boys Training School, Booneville, Missouri.

In order to explain the why and how of the use of the foregoing juvenile records and evidentiary matters, it must be pointed out that plaintiff called, as an expert, an economist named Dr. John 0. Ward. Dr. Ward testified concerning William Hal-stead’s earning capacity. He estimated William Halstead’s future earning capacity by making assumptions, such as William Halstead being an average white 18-year-old male with 9V2 years education, who entered the labor or work force at the age of 18. These assumptions were then applied to a variety of statistical sources (i.e., Bureau of Census, Detailed Characteristics of the Population, United States Summary, Handbook of Labor Statistics, Statistical Abstract of the United States, and Life Expectancy Tables). On cross-examination, Dr. Ward admitted that the historical data of any individual is significant in the determination of any one individual’s performance at any particular future economic level. Dr. Ward acknowledged that his calculations did not include or give consideration to prior incarceration of William Halstead, that William Halstead’s total earned income for the year 1978 amounted to only $856.29.

Upon further cross-examination, Dr. Ward stated that he undertook no additional “refinements” of his calculations beyond his initial assumptions that William Hal-stead was a white average male with 9½ years education who, it was further assumed, entered the labor market at age 18. Additional factors which Dr. Ward acknowledged he did not consider included the individual intellectual ability, the industry of the individual to seek out work or employment, and the refusal of a parent to permit a child to live with the parent. Dr. Ward also indicated that from his experience in determining whether a person would be employable, the person’s arrest record would be an important fact.

In response to plaintiff’s evidence (via her own testimony and that of Dr. Ward), defendants offered both record evidence and witness testimony concerning William Halstead. Part of this contravening evidence included the records from the Illinois Circuit Court (Juvenile Division) referenced above.

Plaintiff contends that the admission of the above-referenced juvenile records was error, as such admission violated § 211.-271(3), RSMo 1978. That statutory provision reads as follows:

“211.271. Court orders not to affect civil rights — not evidence, exception
3. After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, .civil or criminal', other "than proceedings under this chapter.”

In her argument, plaintiff notes that there is no civil case within our state that has addressed this precise question, and she urges this court to adopt the interpretation of that statutory section expressed throughout numerous criminal eases in our state.

Citing to the above statutory section, plaintiff concludes that it is against the public policy of Missouri to permit defendants to use as evidence the juvenile records of the deceased William Halstead to defend against alleged pecuniary values of the deceased in an action for wrongful death. Plaintiff directs the attention of this court to that portion of the above statutory section which reads, “and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter. ” From the just-quoted language, plaintiff concludes that such records and evidentiary matters “shall not be used for any purpose whatsoever in any proceeding, civil or criminal.”

Defendants confront plaintiff’s argument by suggesting that this issue is res judicata, because plaintiff did not prosecute an appeal from the alternative writ of mandamus issued by this court which granted defendants access to the juvenile records. Thus, it is defendants’ position that plaintiff is now estopped from asserting as error issues already decided in a separate and previous proceeding. Defendants cite to Butler v. Manley, 416 S.W.2d 680, 682 (Mo.App.1967), quoting, “[mjaterial facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by judgment rendered therein, and that [sic] such facts or questions become res judicata and may not again be litigated in a subsequent action between the same par-ties_”

Defendants’ reliance upon the doctrine of res judicata as related to the instant case is correct so far as it is applicable in the instant case. The doctrine does not apply entirely because on this appeal, the issue is the admissibility of the records and related evidentiary matters. The alternative writ of mandamus previously issued by this court in this case was more narrow in its scope than assumed by defendants. That writ dealt with the accessibility of those records, etc., to defendants, and did not address the question of the admissibility of those matters at trial. Thus, this court is still faced with providing an answer to the question of whéther § 211.271(3) prohibits the use of juvenile records and related evi-dentiary matters in cases where the juvenile is deceased and the cause of action involves or interrelates to the pecuniary value of the juvenile. Stated another way, this court is required to determine the legislative intent of § 211.271(3) prior to ruling upon the present case.

It is obvious that plaintiff argues for an all-encompassing or blanket prohibition against the use of all juvenile records and related evidentiary matters in all cases not otherwise involving the juvenile in only juvenile proceedings. This court cannot agree with plaintiffs suggested interpretation of § 211.271(3). In the first instance, the statutory section must be read in its entirety, and must be considered in relation to the entire Missouri Juvenile Code (Chapter 211, RSMo 1978). In Interest of A.D.R., 603 S.W.2d 575, 580 (Mo. banc 1980).

The purpose of the Juvenile Code, inclusive of § 211.271(3), is set forth in § 211.011 and reads as follows:

“211.011. Purpose of law—how construed
The purpose of this chapter is to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court. This chapter shall be liberally construed, therefore, to the end that each child coming within the jurisdiction of the juvenile court shall receive such care, guidance and control, preferably in his own home, as will conduce to the child’s welfare and the best interests of the state and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to that which should have been given him by them.”

It cannot be disputed that the overall purpose and intent of Chapter 211, inclusive of § 211.271(3), is to protect and. safeguard the best interests of the juvenile, and from such a purpose and intent our state at large derives a benefit and its best interests are served.

While § 211.271(3) does contain the specific term emphasized by plaintiff, i.e., “and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this Chapter, ” the same section also contains limiting language immediately prior to the above quoted language. That limiting language reads, “... all reports and records of the juvenile court are not lawful or proper evidence against the child.” (emphasis added) It is evident to this court that the prohibition against the use of juvenile court reports and records is for the exclusive protection of the juvenile, and does not extend to any other person or proceeding which is neither occasioned by or brought against the juvenile.

What plaintiff is suggesting in the instant case is that she should be afforded the same protection as a juvenile in her recovery of damages which rest at least in part upon the pecuniary value of the juvenile (i.e., her son in this case). This court can neither agree with nor adopt such a suggestion. While the rationale for rejecting plaintiff’s suggestion is more evident in a case, such as the instant case, wherein the juvenile is deceased, it appears to this court that plaintiff’s suggestion should likewise be rejected in any and all cases wherein the claim of another rests either in part or in toto upon the pecuniary value of the juvenile. If the suggestion of plaintiff was accepted, a clear analysis of the pecuniary value of a juvenile relative to another party’s claim based thereon could never occur.

This court concludes that the legislative intent, and hence the purpose of § 211.271(3) is to safeguard the best interest of the juvenile, by prohibiting the use of records and reports in all cases except juvenile proceedings, exclusively, and that § 211.271(3) has no application in any case wherein another person seeks recovery under any claim which rests in part or in toto upon the pecuniary value of the juvenile. This ruling addresses plaintiff’s contention relative to the use and- -admission into evidence the juvenile records from the circuit court (juvenile division) of Illinois, and like records, reports, and related evidentiary matters from the juvenile courts of Missouri.

The instant case brings into sharp focus the public policy of our state as contrasted with the legitimate interests of a party relative to juvenile records, reports, and evidentiary matters. Plaintiff asserts that “public policy” outweighs the “legitimate interest” of a party, and thus prohibits the use of such information as evidence in non-juvenile proceedings. To be sure, as defendants assert, § 211.271(3) is a protective statute. From this court’s ruling above, that protection is exclusively applicable to the juvenile, and not to other parties. Hence, use of § 211.271(3) and protection thereunder are privileges exclusively accorded the juvenile. Defendants cites to this court Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), which addressed the “legitimate interest” versus the “public policy” question. This court finds the Davis ruling very persuasive. The United States Supreme Court in Davis declared at 319, 94 S.Ct. at 1111-112:

“The claim is made that the State has an important interest in protecting the anonymity of juvenile offenders and this interest outweighs any competing interest this petitioner might have in cross-examining Green about his being on probation. The State argues that exposure of a juvenile’s record of delinquency would likely cause impairment of rehabilitative goals of the juvenile correctional procedures. This exposure, it is argued, might encourage the juvenile offender to commit further acts of delinquency, or cause the juvenile offender to lose employment opportunities or otherwise suffer unnecessarily for his youthful tran-gression.
We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender, (citations omitted) Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.”

Davis has been adopted in Missouri in State v. Russell, 625 S.W.2d 138 (Mo. banc 1981). See also Ward v. Goodwin, 345 S.W.2d 215 (Mo.1961), where in a civil proceeding the use of juvenile records was permitted for purposes of impeachment. For the same use thereof in criminal proceedings, see State v. Knupp, 507 S.W.2d 360 (Mo.1974).

The rule and rationale in Davis and Russell, while applied as against the argument of the state, finds equal application in the instant case against the argument of plaintiff.

The foregoing analysis and conclusions derived by this court address the error charged by plaintiff relative to her claim that the protection and privilege provided by § 211.271(3) extend to her claim for wrongful death which rests in part upon the pecuniary value of the late William Halstead as relates to the reports and records of the juvenile courts, both domestic and foreign. This court finds against plaintiff on that assertion.

Plaintiff concludes her argument by further challenging evidence in the nature of confessions, admissions, and statements made by William Halstead to a juvenile officer. Plaintiff’s argument rests upon the applicability of § 211.271(3), and she reargues the public policy argument.

In contrast of course, defendants challenge plaintiff’s position regarding the applicability of § 211.271(3), but they further argue that plaintiff waived any alleged privilege under the statute or any applicability of the statute, because plaintiff, both by her pleadings and her evidence, placed in issue the value of William Halstead’s services. Defendants point out that by the pleading and evidence that plaintiff pointed out that (a) William Halstead dropped out from school, (b) he was not a model boy, (c) plaintiff had disciplinary problems with him, (d) he was a poor student, and (e) due to his incarceration, her son did not continuously reside with her. Defendants further assert plaintiff’s waiver by the testimony of Dr. Ward.

From this defendants declare, “It has long and often been held in this state that if one party has the right to or does inquire into a certain area or present evidence of certain facts at trial, the other party is entitled to inquire into the same area and develop those facts as might be beneficial to his side of the case, regardless of whether or not in the first instances the first party was immune from having the evidence presented.” Defendants then cite to this court several cases involving the waiver of the physician-patient privilege, and ask this court to adopt the rationale therein by analogy in the instant case. This court agrees with defendants’ contention.

Thus, under the facts and circumstances of the instant case, plaintiffs challenge to the additional evidence, which was neither reports nor records of the juvenile courts, must also fail. This failure is occasioned by the ruling of this court regarding the non-applicability of § 211.271(3), plus the waiver of any claim thereunder by her pleadings and evidence.

In conclusion, plaintiff’s alleged error is found to be without merit because of this court’s interpretation of the legislative interest expressed within § 211.271(3), and its adoption of the rule that § 211.271(3) affords exclusive protection and is hence a privilege exclusively granted to the juvenile. By such rule, this court further concludes that said statute [§ 211.271(3) ] has no applicability, and hence provides no prohibition against the use of juvenile court reports, records, or any relative evidentiary matters in any claim pursued by a party other than the juvenile, wherein that claim rests in part or in toto upon the pecuniary value of the juvenile, whether the juvenile is alive or deceased.

The judgment is in all respects affirmed.

PRITCHARD, P.J., concurs.

NUGENT, J., dissents in separate dissenting opinion.

NUGENT, Judge,

dissenting.

I respectfully dissent because the majority opinion works a radical change in the interpretation of the Juvenile Code, abandoning the universal view that juvenile records, for reasons of sound public policy, for most purposes must remain inviolable.

I hold these views: In an historical and enlightened pronouncement of public policy, the legislature has declared records of juvenile proceedings to be inviolate. The legislature’s declaration is in broad and clear terms not subject to the instant interpretation. Even if we were free to work radical changes in the Juvenile Code’s meaning, for reasons of public policy, we should not do so.

The majority opinion holds “that the prohibition against use of juvenile court reports and records is for the exclusive protection of the juvenile and does not extend to any other person or proceeding which is neither occasioned by or brought against the juvenile.”

The part of the Code in question is subsection (3) of § 211.271 which was amended in 1969 to read in its pertinent part:

After a child is taken into custody ... all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.

Before the 1969 amendment the section read:

Evidence given in cases under sections 211.011 to 211.431 is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding except in subsequent cases under sections 211.011 to 211.431.

The amended section stiffened the strictures against disclosure by broadening them to include the child’s statements to court personnel and “all reports and records of the juvenile court.”

If the amendment does anything, it indicates the legislature’s heightened concern about the use to which material gathered for use in juvenile cases is put. That concern is further reflected in the 1980 amendment of § 211.321.1 which tightened the strictures against disclosure of juvenile records. As amended, that subsection 1 of § 211.321 reads:

The proceedings of the juvenile court-shall be entered in a book kept for that purpose and known as the juvenile records. These records as well as all information obtained and social records prepared in the discharge of official duty for the court shall not be open to inspection or their contents disclosed, except by order of the court to persons having a legitimate interest therein, unless a petition or motion to modify is sustained which charges the child with an offense which, if committed by an adult, would be a class A felony under the criminal code of Missouri, or capital murder, first degree murder, or second degree murder. In addition, whenever a report is required under section 557.026, RSMo, there shall also be included a complete list of certain violations, of the juvenile code for which the defendant had been adjudicated a delinquent while a juvenile. This list shall be made available to the probation officer and shall be included in the presentence report. The violations to be included in the report are limited to the following: rape, sodomy, murder, kidnapping, robbery, arson, burglary or any acts involving the rendering or threat of serious bodily harm. The supreme court may promulgate rules to be followed by the juvenile courts in separating the records.

That amended subsection reflects a legislative concern now so strong as to prohibit even disclosure to the sentencing judge in a criminal case of all but the most serious offenses found in a defendant’s juvenile records, rape, murder, and like serious juvenile offenses. Supreme Court Rules 122.01 through 122.04 reflect similar concerns for the confidentiality of juvenile records.

The mandate of these legislative enactments and court rules seems to have been consistently honored by Missouri appellate courts to the extent constitutionally permissible. The Supreme Court in State v. Russell, 625 S.W.2d 138, 141 (Mo.1981) (en banc), held that § 211.271 must be followed except to the extent that a defendant's Sixth Amendment right of confrontation overrides the public policy of non-disclosure of juvenile records. There, defendant complained that the trial court erred in limiting his right to cross-examine a juvenile state witness about the offenses he had committed. The court held that Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), does not permit the general credibility of a juvenile to be attacked by a record of juvenile adjudication or by unrestrained cross-examination about such adjudication or his juvenile misdeeds. The defendant may only delve into the juvenile records to prove the juvenile’s bias which might arise from his motive to lie because he is suspect and subject to control of juvenile authorities. Otherwise, Missouri’s public policy forbids use of the juvenile records to attack the juvenile witness’ credibility.

State v. Russell, supra, reaffirms the court’s earlier pre-Davis ruling in State v. Williams, 473 S.W.2d 388 (Mo.1971), where the court affirmed a defendant's conviction based in part on the testimony of four adult state witnesses whose juvenile records were excluded for cross-examination purposes on the basis of the public policy expressed in § 211.271(3). The court there said at 389:

The wording of § 211.271 is clear and uneuivocal. It provides that the “records of the juvenile court * * * shall not be used for any purpose whatsoever in any proceeding, civil or criminal, * * This includes the use of the records to show that a witness, whether or not at the time of trial he is an adult, has committed an act when a juvenile which if committed by an adult would have been a crime. (Elisions in original.)

This court in State v. Tolliver, 562 S.W.2d 714 (Mo.App.1978), also held at 719-20 that, except to the extent that true Sixth Amendment confrontation questions are presented in cross-examining a witness about his juvenile record, the public policy enunciated in § 211.271(3) governs and the juvenile record of the witness may not be used in cross-examination to test general credibility.

The policy of most American legislatures and courts, including Missouri’s, has long been to provide a system of investigation and disposition of juvenile cases which serves the best interests of both the children and the state. The authorities all agree that confidentiality of juvenile records is imperative in the service of those interests. Judge Wasserstrom, writing for this court in State v. Jones, 571 S.W.2d 741 (Mo.App.1978), said (at 744) of § 211.271(3) and the prohibition against disclosure of juvenile records:

Moreover, this statute is to be construed in light of its purpose, which was to permit and encourage discussion and consultation between the juvenile and the juvenile officer in a relaxed, nonadver-sary and confidential setting. State v. Ross, 516 S.W.2d 311 (Mo.App.1974). This purpose has meaning when applied to statements made by a juvenile, but it has no relevance to the present situation involving the taking of fingerprints....

The best expression of the general purposes of confidentiality, however, is that of the Wisconsin Supreme Court in State ex rel. Herget v. Circuit Court, 84 Wis.2d 435, 267 N.W.2d 309, 316 (1978), where the court said:

Confidentiality is essential to the goal of rehabilitation, which is in turn the major purpose of the separate juvenile justice system. In theory, the role of the juvenile court is not to determine guilt or to assign fault, but to diagnose the cause of the child’s problems and help resolve those problems. The juvenile court operates on a “family” rather than a “due process” model. Confidentiality is promised to encourage the juvenile, parents, social workers and others to furnish information which they might not otherwise disclose in an admittedly adversary or open proceeding. Confidentiality also reduces the stigma to the youth resulting from the misdeed, an arrest record and a juvenile court adjudication. (Footnotes omitted.)

For the foregoing reasons, I would reverse and remand for new trial with directions that evidence of the deceased’s juvenile record and the testimony of the juvenile officer be suppressed. To the extent that it might be relevant, defendant has other direct evidence of the dead boy’s conduct without the use of closed juvenile court records and the testimony of the juvenile officer.

I have heretofore certified this case to the Supreme Court under the provisions of Article 5, § 10 of the Constitution of the State of Missouri and Rule 83.01 as an opinion I deemed to be contrary to the principles of law pertaining to the confidentiality of records of juvenile proceedings as declared in State v. Russell, supra, 625 S.W.2d at 141, State v. Williams, supra, 473 S.W.2d at 389, both decided by the Supreme Court, and State v. Tolliver, supra, 562 S.W.2d at 719-20, and State v. Jones, supra, 571 S.W.2d at 744, decided by this court.

The Supreme Court, after hearing arguments of the parties, has retransferred this case to us without opinion. Whatever that retransfer may mean, it does not refute the proposition that the public policy of Missouri is that for most purposes records, investigative reports, .memoranda, information, and materials gathered and maintained for use in juvenile proceedings remain inviolate, the only recognized exceptions being in “other proceedings under this chapter” mentioned in § 211.271 and in cases involving a defendant’s Sixth Amendment right of confrontation. In all other cases, as the Supreme Court said in State v. Williams, supra, 473 S.W.2d at 389, the records shall not be used for any purpose whatsoever in any civil or criminal proceeding. That important question of statutory construction and public policy rides on the final decision in this case.


author: MANFORD, Judge.

text:
    John and Sandra DOWD, Respondents, v. GENERAL MOTORS ACCEPTANCE CORP., Defendant-Appellant.
    No. WD 35342.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Jan. 29, 1985.
    Application to Transfer Denied April 2, 1985.

      Linda Virginia Gill of Gage & Tucker, Kansas City, for defendant-appellant.
    Donald A. Witt, Platte City, for respondents.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   MANFORD, Judge.

This is a civil action seeking actual and punitive damages upon a four-count petition presenting alternate theories of negligence, gross negligence, fraud, and prima facie tort. The claim was submitted upon prima facie tort. The jury returned a verdict for $90,000 upon which the court entered judgment. The judgment is reversed.

Appellant, General Motors Acceptance Corporation (hereinafter G.M.A.C.) was the original defendant at trial. Respondents, original plaintiffs at trial, are John and Sandra Dowd (hereinafter the Dowds).

G.M.A.C. has presented no less than thirteen points before this court. Due to the disposition of this appeal, only two of those points are taken up. G.M.A.C. alleges that the trial court (1) erred in overruling its motion for judgment N.O.V., because the Dowds failed to make a submissible case of prima facie tort, and (2) erred by abusing its discretion in awarding attorneys fees to the Dowds because G.M.A.C. was not in default of any deadline set by the court, nor was such award based upon the sustaining of any motion for sanctions.

John and Sandra Dowd were, at the time of trial, residents of Weston, Missouri. In December, 1979, the Dowds purchased from Girner Motors in St. Joseph, Missouri, a 1980 Honda Civic automobile. As part of the purchase, the Dowds executed an installment sales contract which was assigned to G.M.A.C. During 1980, the Dowds made payments to G.M.A.C. Since John Dowd changed employment and in contemplation of having use of a company vehicle in his new sales position, the Dowds decided to sell the 1980 Honda. In December, 1980, the Dowds requested a relative, one Carlos Anderson, to negotiate a sale of the Honda. Anderson contacted one Johnny Allred, a used car dealer in Knob Noster, Missouri, and Allred agreed to purchase the Honda. The terms of the Allred purchase were simple, providing only a payment of $4,000.00 by a check which contained the words, “title attached.” The check was delivered to the Dowds and the Honda to Allred. The evidence revealed that the Dowds were not aware of any time limitation related to the sale/purchase to Allred. The Allred check was received by the Dowds on January 18, 1981, and John Dowd took the check to G.M.A.C. on January 19, 1981 to complete payment of the indebtedness owed G.M.A.C.

At the G.M.A.C. office, John Dowd met with an employee of G.M.A.C., Betty Cous-sens. No discussion was had regarding any time limitation on the sale, or that a signed title to the Honda was to be attached to the Allred check. It was Cous-sens’ understanding that the term “title attached” indicated that she, on behalf of G.M.A.C., could and should release the G.M.A.C. lien on the certificate of title to the Honda and in turn attach the certificate of title to the Allred check. Discussion between Coussens and John Dowd included Dowd’s inquiry of whether or not he should sign the title. Coussens advised John Dowd that signature was not necessary as Allred probably had a power of attorney. Coussens released the G.M.A.C. lien the same day (January 19, 1981), and told John Dowd that she would attach the certificate of title to the check and forward it to Allred via the necessary bank deposit and clearance. Coussens also advised John Dowd that he would receive within a week or so a check for the difference between the sale price and the balance owed G.M. A.C., along with a copy of the installment contract stamped paid.

On January 21, 1981, G.M.A.C. deposited the Allred check with the title certificate attached. The depositing bank sent the Allred check to the collecting drawee bank on January 22, 1981. On January 27, 1981, the depositing bank received from the drawee bank the check, certificate of title attached, and a memo of non-acceptance of the check because the Dowds, as sellers, had not signed the title certificate. On the same date (January 27, 1981), the depositing bank sent the check with the Certificate of title attached to G.M.A.C. G.M.A.C. called the Dowds and on January 29, 1981, the Dowds went to the G.M.A.C. office and signed the certificate of title. The evidence revealed that employees of G.M.A.C. were polite and apologized to the Dowds for having to have them return to sign the title. An employee of G.M.A.C. also informed the Dowds that G.M.A.C. was unaware that the title had to be signed. The check with the title attached was redeposited by G.M.A.C. on January 30, 1981, and the depositing bank resubmitted the check with title to the drawee bank on February 2, 1981. On February 2, 1981, Allred contacted John Dowd, advising the latter that he had not received the signed title. Allred further advised Dowd that if the title was not received by February 3, 1981, he (Allred) would stop payment on the check. The “time limit” imposed by Allred on February 2, 1981 was never disclosed to G.M. A.C. by John Dowd. On February 4, 1981, Allred stopped payment on the check. In the meanwhile, the Dowds had received from G.M.A.C. a check in the sum of $206.86 representing the difference between their loan balance and the sale price ($4,000.00) of the Honda, along with a copy of the installment contract stamped paid.

The Allred check was returned to G.M. A.C. The credit manager for G.M.A.C. contacted the Dowds, advising them of the return of the check. The credit manager requested the Dowds to pick up the Honda and return the $206.81 check, and to continue their payments under the installment contract. Upon the Dowds’ refusal, they were advised that the $206.81 amount would be added back to their loan, crediting a delinquency of $83.50 for the November payment. There followed several collection letters that were sent the Dowds by G.M. A.C.

On February 16, 1981, an attorney for the Dowds wrote to G.M.A.C. stating that the Dowds believed they had no liability to G.M.A.C. because they were in possession of a stamped paid note. The credit manager for G.M.A.C. testified that it is likely someone called the Dowds’ attorney and tried to resolve the matter. The Honda was repossessed by G.M.A.C. on February 18, 1981 after written notice of the repossession to the Dowds. When the Honda was sold, it left a deficiency of $496.24 on the loan. The Dowds were requested by G.M.A.C. to pay the deficiency, but the Dowds refused. G.M.A.C., rather than pursue the Dowds on the deficiency, charged the amount to profit and loss as a bad debt. This decision was reached upon G.M.A.C.’s concluding that the deficiency was too small to warrant the expense of collection, plus a potential cross-claim by the Dowds. On its books and records, the deficiency was recorded by a “Form 565”, which included a notation “Responsibility for Deficiency — Customer Not Responsible —G.M.A.C. Decision.” Testimony at trial defined the meaning of the foregoing wording as a decision by G.M.A.C. not to attempt collection of the deficiency from the Dowds.

On February 27, 1981, G.M.A.C. applied for a repossession title from the Missouri Department of Revenue. This application was accompanied by the required affidavit, which noted that repossession was based upon a default in payment of the installment loan. The Honda was sold on March 30, 1981. G.M.A.C. then reported to the Kansas City Credit Bureau, of which it is a member, that the $496.24 had been written off to profit and loss on the Dowd account. The testimony revealed that the foregoing procedures are normal and routine.

It was established that the G.M.A.C. statement to the Credit Bureau was accurate and true. It was also established that G.M.A.C. knew that in reporting the matter to the Bureau, the Dowds would receive what was called a PRL rating from the Credit Bureau, and G.M.A.C. knew that such rating would “probably” injure the Dowds’ credit rating.

In July, 1981, the Dowds applied for credit with the Montgomery Ward Company. There was no plan by the Dowds to make a specific purchase at Wards. At this same time, the Dowds were in possession of valid Visa and Mástercard credit cards. Wards, as a credit practice, accepts Visa and Mastercard for purchases. Pursuant to the Dowds’ application for credit, Wards made inquiry of the Credit Bureau, the PRL rating relative to the G.M.A.C. loan was revealed, and Wards turned down the Dowds’ application. Subsequently, the Dowds received credit cards from Amoco and Sears, Roebuck & Co., in addition to the approval of a loan from the Bank of Weston. The only denial of credit to the Dowds was the Wards application. The Wards inquiry concerning the Dowds’ application did not include a review of the repossession affidavit filed by G.M.A.C. with the Missouri Department of Revenue.

It was determined that the records of the Credit Bureau are open for inspection by anyone concerning his or her personal credit standing. In addition, any person who, after review of his or her credit file, has a disagreement with the information in such file may, in turn, file of record a statement of his or her account of the issues relative to the credit dispute. The Dowds did not enter any statement or account of the G.M. A.C. report until June, 1982. When they filed their statement, the file with the Credit Bureau was changed from a PRL designation to a “DRP” designation.

The Dowds testified that they lost time from their employment. John Dowd testified that he lost 1½ days and Sandra Dowd stated that she lost a half of a day. Neither testified as to any lost wages or other expenses. The Dowds testified that a good credit standing is very important to them, and John Dowd testified that it “just hurts me to think I would have a bad mark on my credit.”

Venue in this case was challenged by G.M.A.C., but subsequently on a motion by G.M.A.C., this cause was transferred to Clay County.

Prior to trial, relative to the production of documents (Tax return and a branch office manual), the Circuit Court of Clay County ordered G.M.A.C. to pay the sum of $2,000.00 in attorneys fees to counsel for the Dowds. The events leading to this order of payment of attorneys fees is as follows: The circuit court had ordered G.M. A.C. to produce the manual and the tax return within twenty days of its order dated July 21, 1982. The order provided production in camera. During the twenty-day period, G.M.A.C. filed a writ of prohibition regarding the circuit court’s order to produce. This court denied the writ on August 13, 1982. A motion for sanctions against G.M.A.C. was filed by the Dowds on August 31, 1982, and the motion was heard on September 7, 1982. Following that hearing, the circuit court ordered production of the documents by October 7, 1982. The order was for production “in camera.” On October 7, 1982, the circuit court was on vacation and G.M.A.C. filed a motion to extend the time in which to comply with the October 7, 1982 order until October 20, 1982, or in the alternative, to conduct a hearing on the motion to extend or to vacate the previous order of October 7, 1982. The motion to extend the time was granted and G.M.A.C. was allowed until October 20, 1982 to comply. Meanwhile, the Dowds had filed a motion for default judgment, and this motion was overruled. The motion for sanctions were never sustained. G.M.A.C. filed the documents on October 20, 1982. The circuit court, while denying the Dowds’ motion for default judgment, did award them attorneys fees of $2,000.00 in connection therewith.

The case was submitted to the jury under instruction upon the theory of prima facie tort. The jury returned a mixed verdict of actual and punitive damages for both John and Sandra Dowd in the total sum of $90,-000.00. This appeal followed the overruling of timely filed post-trial motions. In addition, facts deemed pertinent will be related within the discussion relative to the disposition of this appeal infra.

Under point (1), G.M.A.C. charges that the trial court erred in overruling its motion for judgment N.O.Y. because the Dowds failed to make a submissible case under the doctrine or theory of prima facie tort.

The procedural correctness to have preserved and on appeal raise the challenge to the trial court’s failure to grant G.M.A.C.’s motion for judgment N.O.V. is not challenged on this appeal.

Missouri has adopted the prima fa-cie tort theory. Porter v. Crawford & Co., 611 S.W.2d 265 (Mo.App.1980). Porter is considered by some to be the initial case on the adoption of the theory, but a careful analysis of the history of the doctrine reveals that it was presented much earlier than Porter. See Bandag of Springfield, Inc. v. Bandag, Inc., 662 S.W.2d 546 (Mo.App.1983). The history and analysis of the doctrine can be reviewed by those interested in reading Bandag and Porter, and no purpose would be served by repeating that history and analysis herein. Another major decision which, for purposes herein, needs to be considered is this court’s ruling in Lundberg v. Prudential Ins. Co., 661 S.W.2d 667 (Mo.App.1983). In Lundberg, as contrasted with Bandag and Porter, this court directed its attention to and thus determined as an issue, the evidentiary sufficiency that is requisite in a case premised upon the prima facie tort theory or doctrine. From Bandag, Porter, and Lund-berg, well defined and prescribed rules have emerged. It is against those rules that disposition of the present case is achieved.

Requisite elements to establish a claim upon the prima facie tort theory or doctrine include (1) the committing of an intentional lawful act by the defendant, (2) an intent to cause injury to the plaintiff, (3) the resulting injury to the plaintiff, and (4) an absence of any justification or an insufficient justification for the defendant’s act. Porter, supra. Bandag carried the prima facie tort theory one step further in declaring where a plaintiff has a claim within a well defined nominated tort action, then such claim cannot be submitted under the prima facie tort theory or doctrine. In Lundberg, one observes a further refinement of the prima facie tort theory or doctrine well beyond the considerations in either Porter or Bandag, supra. This court in Lundberg, after first recognizing and restating the requirement of the commission of an intentional lawful act, went on to declare that the second element of a prima facie tort, to wit an “intent to cause injury to the plaintiff”, must be upon proof thereof an “actual intent”. This court, 661 S.W.2d at 670, held:

“The second element of a prima facie tort is ‘[a]n intent to cause injury to the plaintiff.’ Porter v. Crawford & Co., 611 S.W.2d at 268. Proof that defendant intentionally did the lawful act in question (the first element), even if accompanied by proof that plaintiff was injured (the third element) and that there was an absence of justification or an insufficient justification for defendant’s act (the fourth element) does not make a submis-sible case. Plaintiff carries an additional burden, albeit a heavy one to shoulder, of proving an ‘actual intent’ on defendant’s part to injure plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury.”

Further, Porter, Bandag, and Lundberg declare that in determining whether a defendant’s actions are tortious, the courts must apply a “balancing of interests” test which includes four elements, which are (1) the nature and seriousness of the harm to the injured party, (2) the interests promoted by the actor’s conduct, (3) the character of the means used by the actor, and (4) the actor’s motive.” See also Restatement of Torts 2d, § 870. The foregoing elements, the official comments to the Restatement of Torts, declare (relative to element) (1) the physical harm to person or property is weighed more heavily than emotional harm or harm to prospective pecuniary interest, (2) established privileges or rights of the actor are to be afforded proper weight, (3) conduct which offends societal concepts of fairness and morality favor liability, and (4) the degree of malice motivating the actor may be so overwhelming as to tip the scales in favor of liability. Lundberg, 661 S.W.2d at 671.

As noted in Lundberg, “ ‘[t]he balancing of interests’ like so many legal guidelines is easier to articulate than to implement.” Nonetheless, that is the responsibility of this court as confined by the evidence presented by the particular case under consideration. One more note should be made, with particular reference to Lundberg, in that this court expressed “a legitimate concern has been whether the prima facie tort doctrine would be shaped into a well-defined tort category with clearly etched boundaries or whether it would be an abstraction presaging a cause of action under the facade of a tort for every situation where none previously existed.” Lundberg, 661 S.W.2d at 670. Stated another way and certainly without the eloquence of the foregoing passage, it can be said that there exists real concern that this doctrine, in its development, be in turn well defined as a particular tort which clearly describes the fault or failure of responsibility which is to serve as the basis for recovery so as to preclude its use and application as a mere social practice for recovery simply upon the sheer allegation of any injury or loss.

In disposing of point (1), this court need only look to element number two of the doctrine, “an intent to cause injury to the plaintiff”, and how that element has been ruled in Lundberg. There is no need, under the facts and circumstances of the instant case, to proceed further in applying the “balancing test” as prescribed by Porter. Lundberg notes that before the “balancing test” be applied, it must first be determined if a claimant has presented a submissible case which includes all four of the elements of a prima facie tort.

Respondents point out correctly that review by this court is limited to a review of all the evidence and reasonable inferences therefrom which is favorable to the verdict and any evidence submitted by appellant must be excluded except that which supports the verdict. That is the correct standard in review of those cases charging that the trial court erred in denying a party’s motion for judgment N.O.V. Bayne v. Jenkins, 593 S.W.2d 519 (Mo. banc 1980).

G.M.A:C. asserts that the record lacks any evidence that it intended injury to the Dowds. G.M.A.C. further asserts that the evidence is undisputed that it both desired and attempted to persuade the Dowds to reclaim the Honda and continue their payments. G.M.A.C. further notes that repossession and sale of the Honda occurred only after refusal to reclaim the Honda and to resume payments by the Dowds.

The record is absolutely clear that the Dowds both received correspondence from G.M.A.C. and had conversations with representatives of G.M.A.C. relative to the return of the Allred check, the reclaiming of the Honda and resumption of payments to G.M.A.C. by the Dowds. The evidence further reveals that the Dowds were aware that their refusal to reclaim the Honda and resume payments would result in repossession and sale of the Honda.

The evidence further reveals that the collection efforts, repossession, sale, and charge-off of the claimed balance was a routine procedure. As part of this routine procedure, a report is made by G.M.A.C. to the Credit Bureau. The evidence herein does go wanting to establish that G.M.A.C. actually intended to injure the Dowds.

In contrast, respondents claim that the evidence established that G.M.A.C. submitted the unfavorable credit report to the Credit Bureau, and because they intended the act they intended the natural result, i.e., the damage to this credit rating. But the requirement is that the Dowds prove an actual intent to injure them. As stated in Lundberg the intent to do the act is not sufficient. It is the critical intent to cause injury which must be proved. The evidence in this case does not show any actual intent to cause injury. In addition, the admission by a representative of G.M.A.C. that he knew the report to the Credit Bureau would he an “adverse credit report” does not suffice to establish actual intent to injure by G.M.A.C., particularly in view of the completely accurate nature of the report.

Additionally, the Dowds contend that the intent to injure is established by G.M.A.C.’s seeking and obtaining by affidavit a repossession title to the Honda. It is the Dowds’ position that G.M.A.C. already had the certificate of title signed in blank by the Dowds. They also assert that G.M.A.C. had only to insert the name of the ultimate purchaser, and the election to secure a repossession title from the Missouri Department of Revenue is evidence of intent to injure. Not only does the obtaining of a repossession title fail to establish or provide evidence of an intent to injure, but additionally what the Dowds suggest is that G.M.A.C. should have committed an act prohibited by Missouri law. The transfer of certificates of title to motor vehicles in blank is a prohibited act and such practice places any such title in real doubt as to its validity. State v. Glenn, 423 S.W.2d 770, 774 (Mo.1968), § 301.210, RSMo 1978.

Contrary to the argument of the Dowds that G.M.A.C.’s action in obtaining a repossession title proves an intent to injure, the exact opposite is revealed upon the record herein, that being not only was the obtaining of a repossession title in accord with Missouri law, but it is a routine procedure followed by G.M.A.C. in such collection matters and was not undertaken to injure the Dowds or their credit standing in any manner.

While the Dowds’ attempt to make much ado over the company operational manual of G.M.A.C. which directs that accounts in dispute should not be reported to the credit bureau, they overlook some important facts developed by the evidence. In the first instance, the record reveals that G.M.A.C. never considered the Dowd account a “disputed account”, but rather, merely an account written off to profit and loss as an unpaid account. The account never became a disputed account between G.M.A.C. and the Dowds. What occurred was that the Dowds, as they were permitted to do, posted a statement of their side of the controversy with the Credit Bureau and upon the Credit Bureau records, the matter was changed from a PRL matter to a disputed claim. Moreover, this action by the Dowds occurred subsequent to the credit denied by Wards. It cannot be said that G.M.A.C. acted contrary to its own operational guidelines, and it certainly cannot be concluded that these events establish an actual intent to injure by G.M.A.C.

The evidence herein simply fails to establish by substantial evidence that G.M.A.C. actually intended to injure the Dowds as that requirement is prescribed by Lund-berg.

The Dowds further assert that intent to injure can be established by inference from the particular facts and circumstances of a given case, and from that argue that a person is presumed to intend the natural and probable consequences of his act. From this, they posture that Lundberg rules that when an intentional act results in injuries which are the natural probable consequences of the act, then the injury, as well as the act, is intentional. The Dowds cite to Truck Ins. Exchange v. Pickering, 642 S.W.2d 113 (Mo.App.1982) and Subscribers at Automobile Club Inter-Insurance Exchange v. Kennison, 549 S.W.2d 587 (Mo.App.1977), neither of which control herein.

The Dowds misread Lundberg on this point. Lundberg points out that the plaintiff has the heavy burden of proving “actual intent” to injure. In considering this actual intent, this court reviewed the record for disclosure of “spite or ill will” by the defendant. In addition, in the earlier decision of Bandag, the court used the term malice, and finding none ruled there was no intent to injure. What the Dowds really assert is that if a lawful act is undertaken and a party claims injury thereby, the claim is actionable. This is not the rule. The “intent’ addressed in Bandag and Lundberg is the “intent to injure”, not an “intent to act.”

The evidence herein clearly reveals that G.M.A.C. intended to act. That is, as part of its normal collection procedures, it intended to repossess and sell the Honda and to employ efforts to collect the deficiency due under the sales contract. When those efforts failed relative to the collection of the deficiency, G.M.A.C. wrote that deficiency off to profit and loss. Since G.M. A.C. has an interest as a lender in the credit relationship with customers along with other lenders, it reported the status of the Dowd account to the Credit Bureau. This is, as the evidence revealed, a normal routine credit practice.

Reviewing both the pleadings and the evidence most favorably to the Dowds, it must be concluded that the evidence herein fails to provide substantial proof that G.M. A.C., by its conduct, intended injury to the Dowds. It was, at all times, agreed by the parties herein that personnel of G.M.A.C. treated the Dowds with courtesy.

As an added note, there is absolutely no evidence upon this record that either of the Dowds suffered any damages. Mrs. Dowd, in taking a brief time from her job in the circuit clerk’s office, lost no time or wages. Mr. Dowd, who was in the sales field, could not testify to any loss of income from his having to return to the G.M.A.C. office to sign the title.

G.M.A.C.’s point (1) is sustained to its favor upon the trial court’s failure to have sustained G.M.A.C.’s motion for judgment N.O.V.

Under G.M.A.C.’s point (2), it is contended that the trial court abused its discretion in awarding attorney’s fees to the Dowds since G.M.A.C. was not in default of any deadline set by the court, nor was such award the result of the sustaining of any motion for sanctions.

In brief summary, the events surrounding this issue are as follows.

The Dowds, by discovery, sought disclosure of the net worth of G.M.A.C., along with the operational manual of G.M.A.C. G.M.A.C., well within its right to do so, resisted such disclosure. The Dowds in turn sought sanctions along with a declaration of default against G.M.A.C. A date was set by which G.M.A.C. was to comply. On that date, the court was on vacation and the date was extended. G.M.A.C. complied and filed the requested documents. When the matter was finally taken up by the trial court, it not only failed to rule the Dowds’ motion for sanctions, but it denied their request for default judgment. Then the same trial court found the Dowds entitled to $2,000.00 in attorney’s fees. What was pending before the court was the Dowds’ motion for default which the trial court specifically denied. In the same ruling, the court awarded attorney’s fees.

This court not only finds such action inconsistent, but rules that the award of attorney’s fees was an abuse of discretion.

G.M.A.C.’s point (2) is sustained to its favor upon a finding that the trial court abused its discretion in awarding the Dowds the sum of $2,000.00 in attorney’s fees.

In conclusion, the judgment herein is reversed. In addition, the award of attorney’s fees in the sum of $2,000.00 is reversed.

All concur.

      . By testimony, the "PRL" designates an account as a profit and loss write-off account.

      . “DRP" was defined as "disputed resolution pending."

      .Such production was ordered "in camera" because of the confidential nature of the corporate tax return of G.M.A.C.