author: REYNOLDS, Judge.

text:
    Tom MILLS, Commissioner of the Kentucky High School Athletic Association, Appellant, v. Andrew BUELL, Jr. and Patricia Buell, Parents and Next Friends of Michael Andrew Buell, Appellees.
    Court of Appeals of Kentucky.
    Feb. 22, 1985.
    Phillip D. Scott, Danny C. Reeves, Green-ebaum, Doll & McDonald, Lexington, for appellant.
    William A. Watson, Middlesboro, for ap-pellees.
    Before HAYES, C.J., and McDONALD and REYNOLDS, JJ.
   REYNOLDS, Judge.

The appellant, Tom Mills, is Commissioner of the Kentucky High School Athletic Association and appeals from a final order of Bell Circuit Court which enjoined him from enforcing a ruling of the Kentucky High School Athletic Association and the State Board of Education which declared high school student/football player Michael Buell ineligible to participate in interscholastic athletics at the Pineville High School for a term of 86 weeks.

Commissioner Tom Mills is the executive officer of the Kentucky High School Athletic Association which is an unincorporated voluntary association of many public and private schools within the Commonwealth of Kentucky. By membership in the association, member schools voluntarily agree to its rules and regulations. The administrative body is the Board of Control consisting of ten members. The appellees are the parents of a 16-year old son, Michael Buell, who for two years had attended Lone Jack High School where he participated in interscholastic athletics. The Buells reside within the Bell County School District several miles north of the city of Pineville, Kentucky. The Bell County High School and the Lone Jack High School have been a part of the same school system operated by the Bell County Board of Education. Commencing in August, 1984, the two schools were consolidated and all high school students were directed to attend a newly constructed facility.

Upon inquiry, the Pineville Independent School District and the Bell County Board of Education were informed by the Commissioner that interscholastic athletes of Lone Jack High School and the Bell County High School would be subject to the KHSAA transfer rule should such student athletes transfer to a school outside the Bell County system.

The Commissioner was informed that Michael Andrew Buell intended to transfer to Pineville High School and sought waiver of the transfer rule which provided, in part:

Any student who represents a secondary school in a first team game after enrolling in grades 9 through 12 and who changes schools shall be ineligible for 36 school weeks. The Commissioner may waive the period of ineligibility in the event of any of the following circumstances: (The enumerated circumstances which are part of the rule are not included as being necessary to the disposition of this case).

It was determined that Buell would be ineligible to participate in interscholastic athletics at Pineville for a period of 36 weeks. The Commissioner’s ruling was appealed to and upheld by the Board of Control of the KHSAA and subsequently, an appeal therefrom was filed with the State Board of Education and was affirmed on July 10, 1984. This action was filed on July 16, 1984, in Bell Circuit Court and named as defendants Tom Mills, Commissioner of the Kentucky High School Athletic Association; the State Board of Education, Department of Education, Commonwealth of Kentucky; Pineville Independent School District; and Bell County Board of Education. The appellees, plaintiffs below, Andrew Buell, Jr. and Patricia Buell, parents and next friends of Michael Andrew Buell, alleged that the application of the Association’s By-Law 6 to the factual situation in this case was not applicable and, in the alternative, alleged that application of the transfer rule was arbitrary and unreasonable. Also on July 16, 1984, the appel-lees filed a motion for immediate hearing and judgment on the merits. The hearing was noticed for July 23,1984, by appellees’ attorney. The appellant Mills filed a motion to dismiss on July 23, 1984, and stated as the grounds therefor that the appellees (plaintiffs) had failed to join indispensable parties, venue was improper, and that the complaint failed to state a claim against this party upon which relief could be granted. On July 25, 1984, appellees moved to add to the caption of the complaint the name “Kentucky High School Athletic Association.” This motion was never ruled upon nor was the KHSAA made a party to the action.

On July 26, 1984, the State Board of Education and Tom Mills, in his capacity as Commissioner, filed a joint motion to dismiss based upon the grounds that the plaintiffs had failed to join indispensable parties and that the venue of the matter was improper. On August 14, 1984, the trial court entered findings of fact and conclusions of law and issued an order which in its caption restrained the KHSAA from enforcing its ruling, but in the body of the order enjoined only the Commissioner from enforcing the Association’s ruling. The order also provided that the State Board of Education and Department of Education were dismissed as defendants.

The appellant states that this action must be dismissed for appellees’ failure to join necessary parties. We agree. By statute (KRS 156.070[2]), the State Board of Education is mandated the control and management of the common schools and may designate an organization to manage interscholastic athletics in the common schools. The organization designated is the Kentucky High School Athletic Association. Additionally, the rules and by-laws of such organization shall be approved by the Board and there is provided an appeal to the Board of any decision made by the designated managing organization. The appeal process is set forth in 701 KAR 5:020.

The Association was not made a party to the original complaint which alleged that the Commissioner’s ruling had been affirmed by the Kentucky High School Athletic Association and that an appeal therefrom had been upheld by the State Board of Education. It was error to grant the injunctive relief against the Commissioner without making the Association a party. The Association was subject to service of process and could have been made a party to the action. We hold that under CR 19.01 it was mandatory that the Association be made a party to this action. See Kentucky High School Athletic Ass’n v. Hopkins County Bd. of Educ., Ky.App., 552 S.W.2d 685, 689 (1977). As the Association is directly responsible for enforcement of any penalty, its presence is required for a fair adjudication of the appellees’ claim. The Association itself can and must be made a party. See American Collectors Exchange, Inc. v. Kentucky State Democratic Cent. Executive Comm., Ky.App., 566 S.W.2d 759 (1978).

This action demonstrates that the orders of the circuit court affect persons who are not parties to the action as, for example, no recognition was given to the rights of such other teams that might be competing with Pineville School System. Boles v. Greeneville Housing Authority, 468 F.2d 476 (6th Cir.1972); N.L.R.B. v. Doug Neal Management Co., 620 F.2d 1133 (6th Cir.1980). In most instances the possible benefits flowing from a temporary restraining order may be hard to unravel insofar as benefits therefrom may be far outweighed by the potential detriment to the Association as well as its member schools who have not been made parties to the action as a member of the Association.

The State Board of Education was named as a party to the action and in this case moved to dismiss the action on the basis of improper venue. KRS 452.430 provides that an action against the Board of Education of this state must be brought in the county that includes the seat of government.

The ultimate responsibility for management and control of the programs operated within the common schools rests with the State Board. The ultimate authority to enforce any order issued by the KHSAA has been specifically vested in the State Board of Education since 1978. KRS 156.070. The circumstances presented in the administrative proceedings set forth in this case establish that there can be no final disposition of the appeal process without the presence of the Board of Education. We hold, therefore, it is an indispensable party.

The presence of an indispensable party is required in order that the court may make an adjudication equitable to all persons involved. It is clear that the complaint filed by the Buells is primarily an appeal from the ruling of the KHSAA and the decision upholding same rendered by the State Board of Education. The complaint contains several counts, but the gist of same is the assertion that the Association’s By-Law 6 has no application to the appellees’ situation and that the ruling was arbitrary and unreasonable. The only relief sought herein was that By-Law 6 (the transfer rule) be declared either arbitrary and unreasonable or inapplicable to appel-lees. A & H Truck Line, Inc. v. Kentucky Occupational Safety and Health Review Comm., Ky., 536 S.W.2d 315 (1976).

We do not address appellants’ remaining issues. The judgment of Bell Cir-euit Court is reversed and the trial court is directed to enter an order dismissing appel-lees’ complaint.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NELL HOLCOMB REORGANIZED SCHOOL DISTRICT NO. R-4, Respondent, v. JACKSON REORGANIZED SCHOOL DISTRICT NO. R-2, Appellant.
    No. 66585.
    Supreme Court of Missouri, En Banc.
    Feb. 5, 1985.
    Rehearing Denied Feb. 26, 1985.
    Albert C. Lowes, W. Eric Cunningham, Jackson, for appellant.
    Kenneth W. Shrum, Gary A. Kamp, Marble Hill, for respondent.
   PER CURIAM.

The facts and contentions of the parties are set out in the Court of Appeals’ opinion, copy of which is appended. We elect to retain jurisdiction under Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972) without expressly deciding whether the Court of Appeals properly transferred the case here on jurisdictional grounds. The trial court was presented with two surveys and chose one of them. The judge also viewed the premises in reaching his conclusion that the plant was a unified operation, so that real property and merchants and manufacturers’ taxes should be allocated on the basis of proportional square footage. His findings are essentially factual findings which are not shown to be erroneous. The rule of Murphy v. Carron, 586 S.W.2d 30 (Mo. banc 1976) applies. No purpose would be served by a more detailed opinion. Rule 84.-16(b)(1).

The judgment is affirmed.

All concur.

APPENDIX

In the Missouri Court of Appeals

Eastern District

SOUTHERN DIVISION

NELL HOLCOMB RE-ORGANIZED SCHOOL DISTRICT NO. R-4, a political subdivision, Plaintiff-Respondent, v JACKSON RE-ORGANIZED DISTRICT NO. R-2, JERRY L. REYNOLDS, RODNEY MILLER and HAROLD DEAN KUEHLE, Defendant-Appellant.

No. 47686

Appeal from the Circuit Court of Cape Girardeau County

Hon. Dorman L. Steelman, S.J.

NOVEMBER 20, 1984

Plaintiff-Respondent, Nell Holcomb ReOrganized School District No. R-4, petitioned for a declaratory judgment under Chapter 527, RSMo 1978 in order to obtain a part of the annual real estate, personal property and manufacturer’s taxes paid by Proctor & Gamble Paper Products Company (taxpayer). All of the taxpayer’s land was located in Cape Girardeau County but 84.39% was located in defendant-appellant Jackson Re-Organized School District No. R-2 and 15.61% in Nell Holcomb R-4 School District. Previously all of the disputed taxes were assessed and paid to Jackson R-2.

The case was tried on a stipulation of the parties. The trial court determined that plaintiff was entitled to a portion of the real estate and manufacturer’s taxes, but none of the personal property taxes. It found that 1.636% of the taxpayer’s building was located in plaintiff’s district. It interpreted § 137.095, RSMo 1978 and § 150.320, RSMo 1978 as amended laws 1979 in pari materia to mean that the personal property reported by the taxpayer, a manufacturing corporation, under § 150.-320 and located within its manufacturing plant should be taxed as a unit and the manufacturer’s tax divided between the districts on the ratio of the floor space of the manufacturing plant. Although the manufacturing, together with the tools, machinery and appliances used therein were all in defendant Jackson’s district some finished products were stored in plaintiff Nell Holcomb R-4 district.

The court concluded that the actual manufacture and storage were all part of a single manufacturing process and that apportionment should be based on the ratio of percentage of the taxpayer’s building in each district. Prior to 1978 the building was contained wholly within the Jackson R-2 District. In 1978 and 1980 the taxpayer enlarged its building and the two additions resulted in a part of the building, found to be 1.636% of the total floor space, to be within plaintiff Nell Holcomb R-4 District. The judgment awarded plaintiff 1.636% of the manufacturer’s taxes collected by defendant in 1981 and 1982. A total of $4,887.51. The judgment also ordered a future division on the same ratio. The judgment followed the same formula for real estate taxes on the building. However, the court denied plaintiff Nell Holcomb R-4 any of the personal property taxes on the tangible personal property used in the manufacturing process upon a finding that such property was located entirely in defendant Jackson R-2’s District and that only storage of part of the finished products took place in the 1978 and 1980 building additions located in Nell Holcomb’s District.

Defendant Jackson R-2 claims on appeal that the real “situs” of taxpayer’s manufacturing was wholly within its district; that the existence of a miniscule part of the building in plaintiff’s District which is used only for storage is immaterial to the entitlement to the manufacturer’s tax. Defendant further contends that if a division is proper, the court erred in applying a “situs” rule based upon percent of building and instead should have used the manufacturer’s tax report of only the value of finished goods times the percent stored in plaintiff’s district, 1.954%. As a result, the tax on other property used and reported by the taxpayer under § 150.320 as utilized in the manufacturing process and wholly within defendant’s district to wit: raw materials, tools, machinery and appliances, would be paid solely to defendant Jackson R-2.

Plaintiff Nell Holcomb R-4 answers that § 137.095 exhibits a legislative intent that the manufacturer’s tax be based upon “si-tus” and that the court properly based its judgment on situs and a percentage of the manufacturing process as a single activity performed within a single building. It also contends that although the taxpayer’s previous manufacturer’s tax reports under § 150.320, from which the assessor determines the tax, segregated the value of finished goods from other includable categories of tangible personal property it was not required to do so by the statute. Thus, it concludes § 150.320 does not permit a breakdown into parts for the purposes here at issue.

We look to the question of our jurisdiction to consider this appeal. In our view the resolution of this dispute requires a construction of the meaning of revenue laws of this state, § 137.090, RSMo 1978, effective January 2, 1979, § 137.095, RSMo 1978, § 150.320, RSMo 1978, amended laws 1979. The proper assessment, levy, collection and disbursement of real estate and manufacturing taxes between the two taxing districts are in direct conflict. The Supreme Court has exclusive jurisdiction of all cases involving the construction of revenue laws of this state. Mo. Const. Art. V, § 3 as amended 1982. Regal-Tinneys Grove Special Road District of Ray County v. Fields, 552 S.W.2d 719, 720-721 (Mo. banc 1977).

This appeal is ordered transferred to the Supreme Court. Mo. Const. Art. V § 11.


author: GARY M. GAERTNER, Special Judge. SATZ, Justice,

text:
    In re C.S.N. and M.S.N., Minors.
    No. 46163.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 5, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 28, 1984.
    Transferred to Supreme Court Oct. 9, 1984.
    Retransferred to Court of Appeals Feb. 15, 1985.
    Original Opinion Reinstated March 20, 1985.
    Curtis & Crossen, Leland B. Curtis, and Thomas E. Allen, Clayton, for appellant.
    Belz & Belz, Mark Belz, St. Louis, for respondent.
   GARY M. GAERTNER, Special Judge.

This is an appeal from a grant of habeas corpus. S.N. was awarded custody of his two children, C.W.N. and M.S.N. This appeal was taken from that grant of habeas corpus and award of custody.

This Court is obligated to determine whether it has appellate jurisdiction. Frey v. Gabel, 574 S.W.2d 38, 39 (Mo.App.1978). Appellate jurisdiction is lacking. No appeal lies from a decision in a habeas corpus proceeding. Bebee v. State, 619 S.W.2d 363, (Mo.App.1981); Miller v. State, 615 S.W.2d 98 (Mo.App.1981); W. v. M., W. & W., 490 S.W.2d 64 (Mo. banc 1973); Hutchinson v. Wesley, 455 S.W.2d 21 (Mo.App.1970).

The proper remedy in this case is by a writ of certiorari. W. v. M., supra; Hutchinson, supra.

This appeal is dismissed.

DOWD, C.J., concurs.

SATZ, J., concurs in separate concurring opinion.

SATZ, Justice,

concurring.

Under present Missouri law, I am constrained to concur.

As noted by the majority, this is an appeal from a grant of habeas corpus. S.N., the natural father, was awarded custody of his two children, C.W.N. and M.S.N. The natural father filed the writ against the children’s stepfather and maternal grandmother, who were holding the children after the death of their natural mother. The mother had custody of the children pursuant to a divorce decree entered on October 27, 1970.

At the evidentiary hearing held by the trial court, all the parties testified, including the children. The court also considered home studies of both parental homes as well as the expert testimony of a child psychiatrist. The court found that both the natural father and stepfather love the boys and that neither the natural father nor his present wife was unfit or unsuitable to have custody of the boys. On the bsis of these findings, custody was given to the natural father.

This court is obligated to determine whether it has appellate jurisdiction. Frey v. Gabel, 574 S.W.2d 38, 39 (Mo.App.1978). Under present Missouri law, jurisdiction is lacking because no appeal lies from a decision in a habeas corpus proceeding. W. v. M., W. & W., 490 S.W.2d 64, 67-68 (Mo. banc 1973); Hutchinson v. Wesley, 455 S.W.2d 21, 23 (Mo.App.1970).

In W. v. M., W. & W., supra at 67, the Court reaffirmed existing law, specifically holding that no appeal lies from a denial of habeas corpus involving the custody of a minor child. The Court reasoned the interests of children would be served best by keeping the adjudication of custody out of the more time consuming appeals process. Id. at 67. Accordingly, a petitioner in ha-beas corpus who is denied relief in the circuit court must seek further relief by filing a new petition for writ of habeas corpus in the court of appeals. Id. at 67.

However, where, as here, the losing parties are respondents who do not claim an existing legal right to custody of the child, the alternative of filing a writ of habeas corpus in the appellate court is not a viable option. See State ex rel. White v. Swink, 256 S.W.2d 825, 830, 832 (Mo.App.1953). As noted by the majority, respondents in a habeas corpus proceeding who lose in the trial court do have the option of filing a writ of certiorari in the appellate court. State ex rel. Bennett v. Gagne, 623 S.W.2d 87, 89 (Mo.App.1981); State v. Dodson, 556 S.W.2d 938, 945 (Mo.App.1977); see also Hutchinson v. Wesley, supra at 24. This writ, as presently construed, however, would not provide the present respondents adequate relief.

The functions of the writ of certiorari have not been specifically defined by statute in Missouri, State ex rel. Kassen v. Carver, 355 S.W.2d 324, 327 (Mo.App.1962); rather, in Missouri, we adopted the writ as it existed at common law. Id. at 327; State ex rel. Kennedy v. Remmers, 101 S.W.2d 70, 71 (Mo.1936). At common law, the writ is issued from a superior court to an inferior court, commanding the inferior court to certify its record to the superior court for consideration. See, e.g., State ex rel. Modern Finance Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo.App.1968). The writ is used to determine “whether the inferior tribunal acted outside its jurisdiction or otherwise illegally, in situations where no appeal or other available mode of review is afforded or where such other type of review is inadequate to meet the exigencies of the case” (citations omitted) Id. at 740.

The writ of certiorari is narrow and inflexible. It presents only questions of law and does not permit consideration of evidence or issues of fact. State ex rel. Retirement System of St. Louis v. Murphy, 224 S.W.2d 68, 73 (Mo. banc 1949). It does not authorize an inquiry into the merits of the case below. State ex rel. Hill v. Davis, 488 S.W.2d 305, 308 (Mo.App.1972); But see State ex rel. Massman v. Bland, 194 S.W.2d 42, 44 (Mo. banc 1946). Rather, its scope is limited to the question of the jurisdiction or power of the court below to render its decision. State ex rel. Hill v. Davis, supra at 308; State ex rel. Kennedy v. Remmers, supra at 71; State ex rel. Miller v. O’Malley, 117 S.W.2d 319, 321 (Mo. banc 1938).

Habeas Corpus is essentially a legal remedy Ex parte De Castro, 190 S.W.2d 949, 951 (Mo.App.1945), conventionally limited to jurisdictional issues as they can be determined on the face of the record. Griggs v. Venerable Sister Mary Help of Christians, 238 S.W.2d 8, 13 (Mo.App.1951). Where habeas corpus is thus limited, a writ of certiorari which also tests questions of jurisdiction may well be an effective vehicle of appellate review for the party who was respondent in the trial court and who has lost. However, when habeas corpus is used as the procedural vehicle to adjudicate the custody of minor children and the fitness of the petitioner or respondent to care for the children is placed in issue, an expanded inquiry at trial is not only permitted but is required. W. v. M., W. & W., supra at 67. The paramount consideration is the well-being of the child and the inquiry, therefore, is not limited to the bare legal rights of the parties; rather it must be guided by equitable principles so as to determine the best interests of the children. Id. at 67. The inquiry is normally broadened to include a full evidentiary hearing as was held in the trial below.

Under these circumstances, a writ of cer-tiorari, in its conventional sense, is clearly an inadequate vehicle for review. The imbalance between petitioner and respondent is inequitable. A petitioner who loses below can file another writ of habeas corpus in an appellate court, and, under our present practice, obtain a repetition of the entire proceeding, including a new eviden-tiary hearing if he so desires; not so for a losing respondent, who can only seek review under the narrow constraints of a writ of certiorari.

Unless the scope of review under a writ of certiorari is broadened beyond its conventional scope, see State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140 (banc 1917), the review provided by the writ is not meaningful in a child custody case like the present case. The issues involved in a child custody proceeding demand that we minimize the possibility of judicial error by providing a method of review at least as effective as a conventional appeal.

      . Upon the death of the mother, the custodial spouse, the father’s right to custody was by, opertion of law, restored to him, if he were otherwise fit. E.g., Schumacher v. Schumacher, 223 S.W.2d 841, 845 (Mo.App.1949); State ex rel. Walker v. Crouse, 205 S.W.2d 749, 750 (Mo.App.1947).

      . The appellate proceeding can be expedited by certifying the transcript of the original hearing to the court of appeals by consent of the parties. In this way, the appellate court can make an independent determination of the fitness of the parties without the necessity of a second evidentiary hearing. G.C.J. v. G.G., 510 S.W.2d 193, 195 (Mo.App.1974).

      . It is not clear from the record whether both respondents below, the stepfather and maternal grandmother, are appealing or whether just the stepfather is appealing; nor is it made clear whether the ultimate relief sought is to have legal custody placed in the stepfather or grandmother or, for that matter, both.


author: REINHARD, Chief Judge.

text:
    David Lee HALDEMAN, Appellant, v. Alicia HALDEMAN, Respondent.
    No. 48633.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 5, 1985.

      Robin Edward Fulton, Fredericktown, for appellant.
    William Gerald Reeves, Farmington, for respondent.
   REINHARD, Chief Judge.

Husband and wife appeal from a decree dissolving their marriage. In addition, husband appeals from the court’s order awarding wife attorney’s fees pending appeal. All appeals have been consolidated. The decree apportioned items of separate property, divided marital property, awarded “rehabilitative maintenance” to wife, and purported to determine the custody of the parties’ two children. We dismiss the cross-appeals because of the lack of a final judgment, and affirm the award of fees.

The parties were married in March 1979. Husband is a staff sergeant in the United States Air Force, stationed in Spain. Wife is a Spanish national, who, at the time of trial, did not have a residence in the United States. The children were residing with husband’s mother, their paternal grandmother, in Farmington, having been brought there by husband, without wife’s consent, from their home in Spain in October 1982.

The focus of our inquiry is the custody provision of the decree. That provision states:

[Wife] shall be awarded primary custody, care and control of the minor children; [Husband] shall immediately transfer physical custody of said minor children to [Wife] at such time as [Wife] shall permanently relocate within the United States, said transfer to be made to [Wife] at her place of residence within the United States, at [Husband’s] expense.

Husband argues that this provision is invalid because its effect is to grant him primary custody of the children, with a change of custody to take place upon the occurrence of a contingent future event. This kind of order has been held to be improper because it improperly predetermines what would constitute a significant change in circumstances to justify a change in custody. See In re Marriage of Dusing, 654 S.W.2d 938 (Mo.App.1983); NKM v. LEM, 606 S.W.2d 179, 183 (Mo.App.1980).

We agree that the effect of this provision is to allow the children to remain in the custody of husband’s mother until wife establishes a permanent residence in the United States. However, we disagree with husband’s assertion that this grants him the primary custody of the children. Rather, it raises a question as to the finality of the decree.

To be appealable, a decree must dispose of all issues raised in the action. Green v. Green, 240 S.W.2d 741 (Mo.App.1951). This disposition must include an award of custody where that is in issue. Id. Where further judicial proceedings are necessary, the decree is not final and the appeal must be dismissed. Dorris v. Dorris, 623 S.W.2d 47 (Mo.App.1981).

The quoted portion of the decree purports to make a final determination of custody. That determination was conditioned, however, on the occurrence of a future contingency. The custody of the children before that must necessarily be temporary. Therefore, to the extent that the decree allows the children to remain in the custody of their grandmother, it is a decree of temporary custody, which is not appealable. See Dorris v. Dorris, 623 S.W.2d at 48. In addition, although the court may not have contemplated further proceedings, the question of whether wife established a permanent residence in this country may well require a judicial determination. This, too, indicates a lack of finality. Finally, a question remains as to the custody of the children in the event wife does not establish a residence here. Although the decree is silent on this question, it is clear that if she fails to establish a residence, there would be no permanent custody order. The lack of an order covering this contingency further supports our conclusion that additional procéedings are necessary, and that the decree is not final.

We now consider whether the lack of finality of the custody provision precludes our review of the entire decree. As we noted earlier, a final decree should finally dispose of all issues before the trial court. Here the decree failed to do so. Therefore, the decree is not final. The lack of finality of one issue is fatal to the ap-pealability of all questions raised by the appeal from the decree. In re Marriage of Wineland, 609 S.W.2d 464, 467 (Mo.App.1980).

The appeal from the court’s award of attorney’s fees and suit monies pending appeal stands on a different footing, however. Orders on motions for costs and expenses pendente lite are separate judgments from which appeals may be taken. Dardick v. Dardick, 661 S.W.2d 538, 540 (Mo.App.1983). Thus, although the underlying appeal was improvidently taken, the award of fees and costs pending that appeal is properly before us. We have examined the record and under the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) we determine that the award of fees must be affirmed.

The appeals from the decree of dissolution are dismissed. The order granting attorney’s fees and costs pending appeal is affirmed.

DOWD, CRIST and KAROHL, JJ., concur.

      . After consolidation of the cross-appeals, wife did not file an appellant’s brief. From her statement of issues filed pursuant to Local Rule A.01 it appears that she intended to raise issues dealing only with the custody provisions of the decree. In light of our disposition, we need not address her appeal separately.


author: SMITH, Presiding Judge.

text:
    Clarence R. HIGLEY, Plaintiff-Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
    No. 47843.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 22, 1985.

      Kim Roger Luther, St. Louis, for defendant-appellant.
    David R. Herndon, St. Louis, for plaintiff-respondent.
   SMITH, Presiding Judge.

Defendant appeals from a judgment against it, pursuant to jury verdict, in the amount of $2,371,000 for injuries sustained by plaintiff. The action was brought for violation of the Federal Safety Appliance Act, 45 U.S.C. Sec. 2. We affirm.

Plaintiff was a veteran brakeman-switch-man for defendant in McGehee, Arkansas. At the time of the accident he was a member of a crew preparing to couple and move empty cars. Plaintiff was pulling pin lifters to open the coupling knuckles to allow the cars to be coupled together. In order for the cars to couple it is necessary that at least one of the knuckles be open. The pin lifter extends from the knuckle to the outside of the car. Its function is to allow an employee to lift the pin in the knuckle so that the knuckle will open. It is designed so that it is unnecessary for the employee to go between the cars to open the knuckle. Plaintiff reached the point where the accident occurred and observed that two cars were uncoupled and that the knuckles of each were in the closed or almost closed position. From his experience he knew the cars would not couple with the knuckles in that position. He took hold of the pin lifter which then separated from the knuckle and fell to the ground without opening the knuckle. The pin lifter for the other car was on the other side of the cars. Plaintiff went between the cars to manually open the knuckle. As he was doing so the cars came together crushing his left arm between the knuckles. It took approximately 45 minutes to free plaintiff. His left forearm and hand were mangled beyond salvage resulting in amputation below the elbow.

Defendant challenges plaintiff’s verdict directing instruction as unsupported by the evidence. That instruction substantially followed MAI 24.03 omitting the first paragraph which was uncontested. The form second paragraph as submitted read, “defendant used on its line a car which was not equipped with a coupler coupling automatically by impact without the necessity of the plaintiff going between the ends of the car ... ” Defendant contends that there was no evidence that there had occurred a prior impact in which coupling did not occur or that the coupling knuckles were in a position to couple prior to any impact, which it contends are prerequisites to liability under the Act. This in turn is based upon defendant’s theory that pin lifter failure presents a different Safety Appliance violation than coupler failure. We find no merit to these contentions.

The Safety Appliance Act provides that it is “unlawful for any common carrier ... to haul or permit to be hauled or used on its line any car ... not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” 45 U.S.C. Sec. 2. The “without the necessity” clause applies to both the act of coupling and uncoupling. Johnson v. Southern Pacific R. Co., 196 U.S. 1 l.c. 18, 25 S.Ct. 158 l.c. 162, 49 L.Ed. 363 (1904). A single failure of the coupling mechanism is sufficient to establish a violation of the Act. Affolder v. New York, Chicago and St. Louis Railroad Co., 339 U.S. 96 l.c. 99, 70 S.Ct. 509 l.c. 511, 94 L.Ed. 683 (1950). The Act imposes absolute liability regardless of care or diligence. Clark v. Kentucky and Indiana Terminal Railroad, 728 F.2d 307 (6th Cir.1984) [2]. From language used in the last cited case and certain other cases defendant distills a requirement that the evidence show an unsuccessful attempt to couple by impact before liability is established. We find no such requirement. The cases relied on by defendant involved situations where the question was whether it was necessary for the plaintiff to go between the cars to effectuate a couple. Obviously, liability does not attach under the Act if the couplers will in fact couple automatically by impact without the necessity of plaintiff going between the cars.

That is not, however, the situation here. The evidence in this case established that the knuckles of the two cars involved were in positions where it was impossible to couple the cars by impact. Before a couple could be effectuated it was necessary that one of the knuckles be opened. It is for just such a necessity that pin lifters are provided. Their purpose is to allow opening of the knuckle from the side of the car. When the pin lifter failed the cars could not be coupled by impact without plaintiff going between the cars to open the knuckle. The failure of the pin lifter was a breach of defendant’s statutory duty. Jordan v. East St. Louis Connecting Ry. Co., 308 Mo. 31, 271 S.W. 997 (1925); Lovett v. Kansas City Terminal Ry. Co., 316 Mo. 1246, 295 S.W. 89 (1927). The instruction properly submitted this issue as an ultimate fact under MAI.

Defendant contends that the trial court erred in admitting into evidence a picture of plaintiffs mangled arm taken by the surgeon prior to amputation. The picture, admittedly gory, was a 3" x 3" color photograph, one of four taken by the surgeon as routine practice in amputation cases. The court refused to admit the other three photographs. Admission of photographs is within the discretion of the trial court, Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577 (1953) [7, 8], and will be disturbed only on a showing of abuse of that discretion, Beshore v. Gretzinger, 641 S.W.2d 858 (Mo.App.1982) [1, 2], The photograph was an accurate portrayal of the injuries to plaintiffs arm, was not enlarged and did not distort or exaggerate the injury. The photograph was relevant to the nature and extent of plaintiffs injury and to the damage element of pain and suffering sustained by plaintiff while being extricated and prior to amputation. We do not find an abuse of discretion. Helming v. Dulle, 441 S.W.2d 350 (Mo.1969) [6]; McWilliams v. Wright, 460 S.W.2d 699 (Mo.1970) [2-5].

Defendant next complains that two answers given in response to defendant’s cross-examination of plaintiff injected negligence of defendant’s employees into the case. The answers arose as a result of defendant’s efforts to establish plaintiff’s contributory negligence by eliciting that if he had not gone between the cars the accident wouldn’t have happened. It is questionable that the answers injected negligence of the train crew into the case. All the answers did was state that if the “train” hadn’t moved there wouldn’t have been an accident, a fact self-evident from the accident.

Furthermore, the answers were proper in response to defendant’s efforts to saddle plaintiff with contributory negligence. While the negligence of the railroad was irrelevant to plaintiff’s right of recovery, whether he was guilty of contributory negligence depended on all the circumstances. There was evidence that when a man went between the cars no movement of the train was to be made until he signalled for it. There was evidence that the train crew knew plaintiff had gone between the cars and that no movement should be made until he signalled for it. It was for the jury to decide whether under those circumstances it was negligent for plaintiff to go between the cars and also whether that was the sole cause of his injury. The answers given by plaintiff constituted his articulation of his own non-negligence and the absence of proximate cause from his conduct. Defendant having opened the door to the propriety of plaintiff’s action can hardly complain that plaintiff chose not to accept the full blame for the occurrence. We find no abuse of the trial court’s discretion in overruling defendant’s motion for a mistrial.

Defendant next contends that the verdict is so excessive as to demonstrate bias and prejudice and alternatively as warranting remittitur. Mere size of the verdict alone does not establish bias and prejudice; there must additionally be some trial error. Dunn v. St. Louis-San Francisco Ry. Co., 621 S.W.2d 245 (Mo. banc 1981) [23, 24]. We have found no trial error.

As to the request for remittitur, Fowler v. Park Corp., 673 S.W.2d 749 (Mo. banc 1984) markedly restricts the circumstances under which an appellate court can supersede the judgment of the trial court on excessiveness. Those circumstances arise only when “the award is so far out of line, when compared to the tangible damages shown, that the appellate court would be impelled to take corrective action.” [16]. Plaintiff was forty years of age at the time of the accident. He sustained severe pain and suffering. He has continuing, possibly permanent, “phantom” pain from the amputation. Because of his education and mental abilities plaintiff is suited only for mechanical type of work which he cannot successfully do. He has limited success with his prosthesis. There was evidence he is virtually unemployable. He is also heavily dependent on assistance for many routine personal activities. We need not detail fully the results of his injury or the economic evidence presented. We do not find the award so far out of line as to require us to take corrective action.

Defendant s final point is that the court erred in failing to grant its motion for dismissal under forum non con-veniens. The court’s ruling on such a motion is highly discretionary. Blankenship v. Saitz, 682 S.W.2d 116 (E.D.Mo.1984). We are unable to find an abuse here, particularly when the forum is the main office location of the defendant, the facts of the occurrence were virtually undisputed, and the nature of the injury conceded.

Judgment affirmed.

SNYDER and SATZ, JJ., concur.

      . St. Louis Southwestern Ry. Co. v. Ferguson, 182 F.2d 949 (8th Cir.1950) [1]; Southern Ry. Co. v. Stewart, 119 F.2d 85 (8th Cir.1941) [1-3] rev'd; Stewart v. Southern Ry. Co., 315 U.S. 283, 62 S.Ct. 616, 86 L.Ed. 849 (1942).

      . In the Stewart case, supra, it was the absence of evidence of plaintiff attempting to use the pin lifter before going between the cars which caused the Eighth Circuit to reverse the judgment for plaintiff.

      . Defendant has raised no issue that the presence of a pin lifter on the other side met its statutory duty and we do not address that question.

      . The answers given were: "If the train had not of moved, it [his arm] wouldn’t have been coupled" and “If the train hadn’t moved I could have opened the knuckle and there wouldn’t have been no problem either.”

      .Such a defense is available only if plaintiffs negligence was the sole cause of the accident. St. Louis Southwestern Ry. Co. v. Ferguson, 182 F.2d 949 (8th Cir.1950) [3]; Soderstrom v. Missouri Pacific Ry. Co., 141 S.W.2d 73 (Mo.App.1940) [20]; 45 U.S.C. Sec. 53.


author: GREENE, Judge.

text:
    Clyde Junior WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13681.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 28, 1985.

      William J. Stewart, Bolivar, for movant-appellant.
    John D. Ashcroft, Atty. Gen., John Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Movant, Clyde Junior Williams, appeals from the denial by the trial court, after an evidentiary hearing, of his Rule 27.26 motion to vacate two twenty-five year sentences imposed after his pleas of guilty to two counts of selling controlled substances.

Williams contends the denial of his motion was prejudicial error because he was not competent to enter the guilty pleas since at the time, he was a) under the influence of drugs, or b) was suffering from an abstinence syndrome (withdrawal from drugs) to such an extent that he could not make a knowing and intelligent waiver of his right to a trial on the merits.

At the evidentiary hearing, Williams testified that he was addicted to drugs, and that for several days prior to pleading guilty to the two drug related charges, he had been “shooting up” with several different morphine type drugs, but that he had been jailed the day before the court appearance, which caused severe withdrawal symptoms, making it impossible for him to understand what was going on in court, and that he did not know that he had pled guilty to two felony charges for which he had received two twenty-five year sentences. Williams’ story was corroborated, to some extent, by friends and relatives, including his mother-in-law and his wife.

On the other side of the coin, there was evidence that Williams, a chronic abuser of drugs, who had “5 or 6” prior felony convictions, was the focus of a police investigation which could have resulted in the filing of several more felony drug charges against him, in addition to the two already pending. Williams knew of the investigation, and felt that he would be found guilty on the additional charges, if filed. In an effort to dispose of all of the charges, both pending and unfiled, Williams contacted Springfield, Missouri police officer Rodney Burk, who had been an undercover officer in the narcotic division, and who was known to Williams, to see what could be worked out on a plea bargain arrangement.

Burk contacted the prosecuting attorney. After negotiations, the prosecutor agreed to recommend twenty-five year sentences on the two pending charges to run concurrently, and to not file any other felony charges. Williams decided to accept the plea bargain agreement. Williams asked Burk to put him in jail, so there would be no question as to whether he was under the influence of drugs when he entered his pleas the following day. Burk obliged, and notified Williams’ attorney as to what was going on. Williams spent the night in jail, and was taken to court the next day where he was met by his attorney.

The attorney told Williams that he thought twenty-five years was too much, and tried to talk him out of the plea. Williams refused. The pleas were then entered before the same trial judge who later conducted the 27.26 motion hearing. In the opinion of his attorney, Williams’ mind was clear and lucid when he entered his guilty pleas. Before the pleas were entered, the trial court questioned Williams extensively regarding whether he was under the influence of drugs at that time. The following are excerpts from the transcript of the plea proceedings regarding that interrogation:

“THE COURT: Do you consider yourself mentally o.k. at this time?
MR. WILLIAMS: Yes, sir.
THE COURT: Are you under the influence of any drugs at this time?
MR. WILLIAMS: No, sir.
THE COURT: Or alcohol?
MR. WILLIAMS: No, sir.
THE COURT: Do you consider yourself mentally normal at this time?
MR. WILLIAMS: Yes, sir.
THE COURT: Do you understand what these proceedings are?
MR. WILLIAMS: Yes, sir.
THE COURT: They’re so-called plea proceedings in which you would be asking the court to accept your plea of guilty in each case?
MR. WILLIAMS: Yes, sir.
THE COURT: Okay. You’ve been able to cooperate with your counsel in the sense that you’ve been able to understand and able to convey your thoughts to him and he’s been able to talk to you in a way that you understood?
(Discussion off the record between the defendant and his attorneys.)
MR. WILLIAMS: Yes, sir.
THE COURT: You’ve been able to cooperate with your attorney?
MR. WILLIAMS: Yes, sir.
THE COURT: Do you understand the nature of these proceedings?
MR. WILLIAMS: Yes, sir.
THE COURT: Have you discussed with your attorney today your mental ability to proceed?
MR. WILLIAMS: No, sir. Have I discussed it?
MR. GAITHER: Yes, we discussed entering the plea of not guilty by reason of mental disease or defect before. Not today, but we have in my office on prior occasions.
THE COURT: I mean on his ability to proceed, not the plea, not as far as pleas of mental disease goes, but I do want to get into that because it was one of the pleas, at least in the Division Four case, and also the Division Three case. Now, he’s wanting to withdraw both pleas in each case, is that right?
MR. GAITHER: That’s correct.
THE COURT: And enter a plea of guilty in each case?
MR. GAITHER: Yes, sir.
THE COURT: Mr. Williams, is that what you want to do?
MR. WILLIAMS: Yes, sir.
THE COURT: Your willingness to plead guilty in each of these two cases results from the discussions you and your counsel and the prosecutor have had?
MR. WILLIAMS: Yes, sir.
THE COURT: Okay.
MR. GAITHER: Not entirely. I’m not entirely willing for my client to accept this plea agreement, he’s making this choice on his own, it’s his right to plead guilty. He feels it would be best for him to do so. I agree that under the circumstances it may well be.
THE COURT: Mr. Williams, you understand the decision is up to you on how to plead at this time?
MR. WILLIAMS: Yes, sir.
THE COURT: Mr. Williams, are you telling the court you’re guilty on each of these charges?
MR. WILLIAMS: (Nodded head affirmatively.)
THE COURT: You’ll have to answer out loud for the record.
MR. WILLIAMS: Yes, sir.
THE COURT: Do you want the Court to allow you to withdraw your pleas of guilty and not guilty by reason of mental defect in each of these cases?
MR. WILLIAMS: yes, sir.
THE COURT: Are you telling the Court you’re doing this voluntarily?
MR. WILLIAMS: Yes, sir.
THE COURT: The Court has granted allocution in each case. The Court adopts and agrees to the plea arrangements. Before pronouncing sentence in either case, Mr. Williams, I’ll ask you again, do you understand the nature of these proceedings?
MR. WILLIAMS: Yes, sir.
THE COURT: Has your attorney told you to answer in any way that was not true?
MR. WILLIAMS: No.
THE COURT: Are you ready for sentencing?
MR. WILLIAMS: (Nodded head affirmatively.)
THE COURT: Okay. You’re nodding your head yes, is that right?
MR. WILLIAMS: Yes, sir.”

The motion court’s judgment denying relief was supported by a seventeen page memorandum detailing findings of fact and conclusions of law. In it, the motion court concluded that Williams had failed to prove any of the allegations of his 27.26 motion by the preponderance of the evidence. The court further concluded that even if Williams had taken drugs the day before he entered the guilty pleas that fact had not impaired his ability to understand, reason, and cooperate with his attorney to such an extent as to make his pleas involuntary.

Our review of the entire record convinces us that the findings, conclusions, and judgment of the trial court are not clearly erroneous. This being so, the judgment of the trial court is affirmed. Rule 27.26(j); King v. State, 639 S.W.2d 396, 397 (Mo.App.1982).

TITUS, P.J., and FLANIGAN, J., concur.

      . All references to rules are to Missouri Rules of Court, V.A.M.R.


author: CLARK, Presiding Judge.

text:
    Rhonda Nell BASHORE, Petitioner/Appellant, v. Otis Frederick BASHORE, Respondent/Respondent.
    No. WD 35804.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.

      Eugene G. Bushmann, Bushmann, Neff, Gallaher & Brown, Jefferson City, for appellant.
    Susan Goering, Benson & McKay, Kansas City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   CLARK, Presiding Judge.

In this dissolution of marriage case, the wife appeals the orders of the trial court which awarded shared custody of the children and which determined that the family residence was the separate, non-marital property of the husband. The judgment is reversed and the cause is remanded for further proceedings.

The first issue raised in the appeal is the propriety and validity of the trial court’s order regarding custody of the two children bom of the marriage. The children are a son bom in 1978 and a daughter born in 1981. As announced from the bench, the court made the following permanent custody disposition:

“With regard to custody of the children. There was no evidence presented that either party could not adequately take care of these children and puts the Court in a position of trying to choose when the only evidence I have is that both of you are equally capable of taking care of the children. Due to the fact that the evidence was you’ve been alternating the children on a weekly basis, although I can’t do joint custody since that has to be by agreement, I have done what I consider the next best thing in these circumstances; and that is that I’m going to alternate custody during the times that you have the children with you. Custody of the children named in the petition are awarded to petitioner every other week. Custody to the respondent, the alternate weeks when he has the children.” (Emphasis added.)

Appellant contends in her first point on appeal that the divided custody order shifting the residence of the children from the home of one parent to the other every week is a judgment finding no support in the evidence and constituting a misapplication of the law.

At the time this case was tried and the judgment was entered, § 452.375, RSMo. Supp.1983 governed. Under the statute, the trial court is empowered in a dissolution of marriage action to award joint custody of the children, sole custody to either parent or, if each is unfit, to a third party. The initial infirmity in the subject judgment is that it does not conform to any of the custody alternatives which the statute authorizes.

The comments by the trial court indicate the judgment in this case was not intended to be an award of joint custody. This follows from the court’s observation, mistakenly conceived, that joint custody may only be ordered on agreement to that arrangement by the parties. Neither appellant nor respondent contends here that the alternating weekly custody change constitutes any concurrent participation by them in caring for the children nor was joint custody an option sought by either party in their pleadings or presentation to the trial court. Appellant’s petition sought custody to be placed in her, respondent’s cross-petition asked that sole custody be given to him and at trial, each of the parties reiterated the same claims. The divided custody arrangement decreed was a solution entirely devised by the court to meet the dilemma, not alone found in this case, where the evidence does not strongly tip the scales in favor of either parent as custodian.

Under the statute, the court is obligated to provide for custody of minor children as a part of the dissolution of marriage decree. If joint custody is not awarded, the only alternatives remaining are placement of sole custody in either parent or in a third party. Here, the trial court disavowed the prospect of joint custody for want of agreement by the parties, but it failed to grant sole custody to either parent, or to a third party, the only remaining options under the statute. The decree giving appellant and respondent custody on alternate weeks therefore errs as a misapplication of the law.

Respondent in his brief here seeks to support the judgment as providing for “split custody” and cites as an example of previous decrees to this effect which have been approved, Gillespie v. Gillespie, 590 S.W.2d 420 (Mo.App.1979). The Gillespie case, and others cited, are of no aid in salvaging the decree here because in each, there was a sole award of custody with liberal, specified periods of temporary custody for purposes of visitation. No case cited by respondent or discovered by independent research has approved a custody decree which grants neither joint nor sole custody.

A further defect in the custody award in this case is an absence of any apparent consideration by the trial court of the best interests of the children or of any evidence to support the disposition ordered. It is axiomatic to say that custody is not to be a reward or punishment of either parent, but is to be based on the ultimate and sole test of what will be in the best interests of the children. Knoblauch v. Jones, 613 S.W.2d 161, 165 (Mo.App.1981). Generally speaking, except for good reason, a minor child should not be shifted periodically from one home to another. It is unwise to transfer custody frequently and not at all unless it is demonstrated by a preponderance of the evidence that the continued well-being of the children requires the change. Leimer v. Leimer, 670 S.W.2d 571, 574 (Mo.App.1984).

Appellant contends that the weekly custody shuttle was not shown by any evidence here to be in the best interests of the children but, instead, is detrimental to their welfare. The failure by the trial court to mention in its findings how the custody as ordered served the children’s interests leaves the order inherently vulnerable and suspect because of its terms. Those provisions leave the children as weekly transients having no permanent home at the residence of either parent. The consequences are predictably to be confusion and instability. It would be an exceptional case in which deference to the trial court’s discretion would warrant affirmance of an alternating weekly custody disposition and then, only on a record in which evidence showed that disposition to be in the best interests of the child. Here, absent any evidence supporting the decree, deference is not to be accorded.

Because of the necessity to remand this case for a rehearing and the prospect that joint custody may be an alternative considered by the trial court, some observations as to that option under the evidence adduced to this point is appropriate. The following facts appear in the record and constitute circumstances unlikely to change when the case is again heard.

The parties were married in 1975 and, after a previous separation, the wife finally left the family home in June, 1982. She took the children who were thereafter with her in her sole care until an unspecified date in 1983. The husband paid no child support, as such, from the date of separation to the date of trial. He did make payments on the joint debts of the parties and, in 1983 when the wife submitted to the alternate weekly custody arrangement, the husband assumed one-half of the day care charges for the children incurred because both the wife and husband were regularly employed outside the home. The wife testified that the alternate weekly custody plan was accepted by her as a matter of economic necessity.

The evidence produced at trial discloses two major grounds of disagreement leading to a breakdown of the parties’ marriage. The first was a difference in religious faith and practice. Appellant testified that she was a member of the Baptist Church but she acknowledged no more than sporadic attendance. Church related activities were quite apparently of minimal significance in appellant’s life. Respondent, however, was an active member of the Assembly of God Church, he attended at least three church services each week and contributed more than 10% of the family’s income to. the church. Appellant disagreed with respondent’s extensive involvement with the church and his commitment of the family resources to church donations.

The second ground of difference lay in the matters of lifestyle and discipline. Appellant enjoyed evening recreation, which she apparently pursued independently, and she was less restrictive in her views as to control over the children. Respondent, to the contrary, is as he testified, a “home person” less interested in outside affairs and strict in his view of the discipline to be imposed on the children.

The divergence in the parties’ attitudes on these subjects widened as the marriage deteriorated and continued after the separation. There is no evidence in this record supporting any prospect for agreement between the parties on decisions involving religious training and discipline of the children.

In this case, joint custody was and apparently is not a disposition which either party seeks. It is also one which is unlikely to succeed because the parties have not shown an inclination or ability to cooperate in important matters affecting the rearing of the children. While the statute does not in express terms condition an award of joint custody on the agreement of the parties, the plan is obviously foredoomed if it is imposed against the wishes of both parents and in the face of expressed parental disagreement on fundamental issues of religious doctrine and child discipline.

The custody award in this case is not supported by substantial evidence and misapplies the law, Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and it is reversed.

The second point presented in the case concerns disposition of the family residence. According to the judgment, the court found the property to have been acquired by the husband prior to the marriage and therefore set it apart as the husband’s separate property. Concurrently, the court found the wife to have contributed to mortgage payments on the house and the decree awarded her $1650.00, “as her share of the equity in the home.” Appellant contends there was no substantial evidence supporting the conclusion that the home was separate property but, to the contrary, the evidence was that the residence was marital property.

The facts applicable to this phase of the case are that in April, 1975, appellant and respondent opened a bank account in their joint names. Although no date had been set, they contemplated marriage. Both made deposits to the account, the amounts not being shown in the evidence, and both were entitled to draw on the account. In May, 1975, respondent drew a check on the account to purchase a building lot. Title was taken in his name alone. Thereafter, respondent procured an FHA loan and had a residence built on the lot. Before final inspection and closing of the loan, the parties were married. On the final mortgage loan documents, appellant and respondent jointly obligated themselves for repayment. The home was occupied from the date of the marriage to the date of separation as the family residence, but respondent never added appellant’s name to the title. During the marriage, appellant and respondent continued to deposit money in the joint account and to make the mortgage loan payments from the account. The evidence was in dispute as to whether respondent told appellant he had placed the title in joint names. Appellant, however, had assumed her name was on the title and only learned it was not when the marriage dissolution case disclosed that fact.

The trial court declared the residence to be non-marital property and set it over to the husband on the basis of the acquisition of the lot prior to the marriage and the maintenance of record title throughout in the name of the husband. This decision applied the “inception of title” theory to distinguish between marital and non-marital property, a concept regularly recognized in the reported cases. Busby v. Busby, 669 S.W.2d 597 (Mo.App.1984). These cases were, however, overruled by Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. banc. 1984).

In Hoffmann, the court reviewed the two major theories used in determining whether property is, under statutory terminology, acquired prior to the marriage and is thus separate property. Under the title theory, property is classified as of the date title passes and if one spouse obtains the title before the marriage, the property remains separate even though marital funds may later be spent to improve the property or reduce a mortgage debt. The Hoff-mann, opinion rejects this theory as one not previously approved by that court and adopts instead the “source of funds” theory-

Under this rule, the character of the property is determined according to the source of the funds which finance the purchase. Thus all property on which marital funds are expended is marital property regardless of the date of acquisition and status of title. So, too, is the increase in the value of such property subject to division because its reclassification eliminates the constraint of § 452.330.2(5), RSMo.Supp. 1983.

In the present case, applying the controlling authority of Hoffmann, supra, the family residence is marital property and must be divided between the parties based on the four factors set out in § 452.330.1, RSMo.Supp.1983. This follows because appellant’s funds contributed to acquisition of the asset, first by payment from the joint bank account to purchase the building lot and second, by the use of marital funds for mortgage reduction payments. The fact that respondent’s name alone appears on the record title is irrelevant.

The judgment is reversed as to the decrees of child custody and property division and the cause is remanded for additional evidence and redetermination of the child custody and property division issues.

All concur.

      . Section 452.375 was amended to delete subsection 6 providing limitations on change of residence outside the state and to define joint legal custody and joint physical custody. Upon rehearing in this case, the provisions of the 1984 statute will govern. Section 452.375, RSMo. Supp.1984.


author: KENNEDY, Judge.

text:
    C. Donald AINSWORTH, Director, Division of Insurance, Plaintiff-Respondent, v. OLD SECURITY LIFE INSURANCE COMPANY, Defendant, and ISC Financial Corporation, Intervenor-Appellant.
    No. WD 35963.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.

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

This is an appeal by ISC Financial Corporation, sole stockholder of Old Security Life Insurance Company, from an order of the circuit court denying its application to intervene in the receivership of Old Security.

We affirm the judgment.

Old Security was placed in receivership in 1977 under the provisions of § 375.560 et seq., RSMo 1969. The administration has continued to the present time. It appears that there will remain after the payment of all claims against the insurance company and the payment of the expenses of the receivership a balance for distribution in the range of 20 million dollars.

The present status of Old Security as a corporate entity is vague. The parties assume that ISC, its sole stockholder, has by some means succeeded to all the rights and duties of Old Security and that it now occupies Old Security’s place. ISC would then be the ultimate recipient of any balance remaining in the receivership estate.

Additional facts appear in our case of State ex rel. ISC Financial Corporation v. Kinder, 684 S.W.2d 910 (Mo.App.1985). That case and this were combined for purposes of oral argument and were submitted at the same time, on November 7, 1984.

ISC, on April 17, 1984, filed its application to intervene in the receivership as a formal party, from the denial of which this appeal is taken. It claims to be entitled as a matter of right to intervene by virtue of Supreme Court Rule 52.12(a). That rule reads as follows:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

ISC lists a number of matters under the control of the receiver, subject to the ultimate control of the court, the disposition of which will increase or decrease the amount to which ISC will ultimately become entitled. Those are described in ISC’s brief as follows:

2. Claimants against Old Security Life to whom awards have been made by the commissioners and whose claims have been approved and paid are now claiming interest thereon. This controversy is the subject of a suit in the nature of an interpleader and class action pending within the receivership proceeding.
3. Taxes were originally claimed by the United States in the amount of approximately $1,000,000 and by the State of Missouri in the amount of approximately $800,000. The federal tax claim has been settled, subject to Congressional approval. The state taxes claimed are yet to be decided or settled.
4. Cash funds more than sufficient to pay the total of the tax claims mentioned above have been set aside, and the trial court has appointed a trustee for those funds. The order of appointment provides that all net income from the investment of those funds shall be paid to the Cole County Treasury. ISC contends that there is no need for the trustee, and that in any event, the net income from the investment of the funds should become part of the general receivership estate. Although this order was evidently entered without notice to the receiver, he has acquiesced in the appointment of the trustee and in the diversion of the net income from the investment of these receivership assets to the Cole County General Revenue Fund.
5. R.A. Sniezek, formerly special counsel for the receiver, has filed a motion in the nature of a suit for declaratory judgment within the receivership proceeding seeking a determination that he is entitled to additional fees for services over and above the amounts heretofore approved and paid to him. If that determination is in his favor, Sniezek intends to file an application for an allowance of additional fees in an amount in excess of $900,000.
6. The Commissioners of Claims have requested additional fees of approximately $735,000 over and above an equal sum which has already been allowed and paid to them. The receiver “stood neutral” and failed to raise what appellant believes are proper defenses to improper claims for additional and excessive compensation. [A footnote adds: “On July 19, 1984, Judge Kinder entered an order awarding the three Commissioners of Claims additional compensation in the total amount of $550,000. This order is not yet. final.” — Ed.]
7. The receiver contends that all claims allowed and for which checks were issued but not cashed, should es-cheat into the State Treasury under the provisions of § 575.760(4). ISC contends that any such monies should be returned to the general assets of Old Security Life, thus to become part of the residuary assets ultimately to be distributed to ISC.

Also, at the time of the filing of appellant’s brief there was litigation pending among the receiver, Continental Bank of Illinois, and trustees of the Central States, Southeast and Southwest Areas Health and Welfare Fund (described in appellant’s brief in the first numbered paragraph in the above series, which we have omitted), but this litigation had been settled by the time of oral argument on November 7, 1984, resulting in the augmentation of the receivership estate by $2.6 million.

ISC argues that it “claims an interest relating to the property or transaction which is the subject of the (receivership)”, that it is “so situated that the disposition of the action may as a practical matter impair or impede (its) ability to protect that interest”, and that its interest is not “adequately represented” by the receiver. The presence of those factors, it says, entitles it to intervention in the receivership proceeding under Rule 52.12(a).

We do not think that Rule 52.12(a) gives ISC any right of intervention in a receivership, as opposed to the ancillary proceedings listed above. Our reason for so holding is that a receivership is not an action to which Rule 52.12(a) applies. What ISC is seeking here is the right to have notice and the right to be heard and to participate in every matter coming before the receiver for decision. It seeks an advance ruling that it is entitled to intervention in every case or matter involved in the receivership. That at least is how we understand the appellant’s request for intervention, and how we understand the practical operation of plenary intervention in the receivership.

We do not undertake to announce any comprehensive definition of the term “action”. In the definitions which have been given by judicial decisions and statutes, we have found none which would include the administration of a receivership estate within its scope. See 1 G.J.S. Actions § 1 (1936); Miller v. Farmers’ Exchange Bank of Gallatin, 228 Mo.App. 367, 67 S.W.2d 528, 532 (1934).

The cases cited by appellant are not persuasive that intervention in a receivership is authorized by a rule which permits intervention in an action. State ex rel. Imperial Utility Corporation v. Hess, 514 S.W.2d 645 (Mo.App.1974), held that the procedure for sewer incorporation of Sections 249.-760-249.810, RSMo 1969, was an action to which the Rules of Civil Procedure were applicable, including the rule respecting intervention, now Rule 52.12. The court noted that the language of the sewer district incorporation statutes “contemplat[ed] an adversary civil proceeding with the circuit court taking evidence as to the reason or necessity for the proposed district”. 514 S.W.2d at 647. (Emphasis supplied). Associated Grocers’ Company of St. Louis v. Crowe, 389 S.W.2d 395 (Mo.App.1965), was concerned with the question whether a petition for judicial review of a decision of the Industrial Commission under the Employment Security Law, which petition named the individual members of the Commission “as members of the Industrial Commission” was in fact “an action ... against the Commission”, within the meaning of the statute providing for judicial review of the Commission’s decisions. The court said that the action was a civil action within the meaning of Rule 42.01 and applied said rules to determine that the petition was effective to secure judicial review of the Commission’s decision. Neither case helps the appellant.

It has been held, on the other hand, in Fischer v. Sklenar, 101 Neb. 553, 163 N.W. 861, 865 (1917), that “[t]he word ‘actions’ is not usually considered to include such proceedings as the settlement of estates, the probate of wills, or the distribution of property, though proceedings ancillary thereto may partake of the nature of actions.... ” We think this quotation is a correct view of the law, and that the administration of receivership estates is not an action in which Rule 52.12 gives a right of intervention.

In holding that a receivership proceeding taken as a whole is not an “action”, and that the intervention rule does not apply, we give the rule a practical as well as a technical application. There are hundreds, even thousands, of actions which must be taken by the receiver in the administration of a complicated receivership estate. Most of them are not “adversary civil proceedings”, see State ex rel. Imperial Utility Corporation v. Hess, supra, 514 S.W.2d at 647, and partake more of the nature of routine business affairs than of litigation. In many of the adversary proceedings in which the receiver may be involved, perhaps in most of them, the interests of the receiver and of ISC would be identical and ISC’s interest would be “adequately represented by existing parties”. If this is not true in every case or matter which the receiver is called upon to deal with, it does not follow that ISC is entitled to become a formal party to the whole receivership proceeding and to every matter involved therewith. ISC asks too much when it asks to be made a party to the receivership itself. It would too much encumber the receivership proceeding.

ISC argues that it is left in some eases without any means to represent its interest if it is not allowed to intervene and be made a formal party to the receivership. Perhaps ISC’s plight is not so bad as it supposes. There are several avenues which are open to it for advancing its claims. There is intervention in particular proceedings in which the receiver may be involved. Intervention should be allowed with considerable liberality. Trbovich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972); In re Metropolitan Ry. Receivership, 208 U.S. 90, 28 S.Ct. 219, 52 L.Ed. 403 (1908). See also Annot., 33 A.L.R.2d 473 (1954). Furthermore, where there is no “action” in which ISC may intervene, it is not thereby necessarily deprived in all cases of standing to assert its interests. This we take to be the meaning of Judge Westhues’ dictum in Lucas v. Manufacturing Lumbermen’s Underwriters, 349 Mo. 835, 163 S.W.2d 750, 757 (1942):

The court is the forum where the parties interested may assert their rights and object to any proposal made by the superintendent. So too with reference to the expenses of administration. The court wherein the case is pending is open to anyone who desires to question the reasonableness thereof.

There is of course the receiver’s personal liability upon his bond for malfeasance, misfeasance and nonfeasance in the performance of his duties. See §§ 374.030, 375.740, RSMo 1969; 66 Am.Jur.2d Receivers § 367 (1973); Annot, 20 A.L.R.3d 967, § 3[a] (1968). And there is the power of the court, upon application of an “interested party”, to terminate the receivership and allow Old Security to resume title and possession of its property and the conduct of its business, Section 375.690.

There may also be available to ISC the stockholders’ derivative action for the assertion of claims improperly failed to be asserted by the corporation (represented by the receiver). See 19 Am.Jur.2d Corporations § 531 (1965).

The judgment denying ISC’s application to intervene is affirmed.

All concur.

      . It is worth noting that ISC has called to our attention no instance where the trial court has denied it an opportunity to assert its interests in any proceeding pending in the receivership. The court has in fact by formal order designated ISC an "interested party”. The order directs the receiver to furnish notice of all proceedings to ISC and accords to ISC the right to hearings on the allowance of claims. The court in making such order may have been acting under the broad powers of Section 375.700.4, and may also have had in mind the quoted statement from Lucas v. Manufacturing Lumbermen’s Underwriters, supra, 163 S.W.2d at 757.


text:
    Sue D. BUSSEN, Appellant, v. Albert J. BUSSEN, Respondent.
    No. 47705.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 29, 1985.
    Milton W. Schaeffer, Richmond Heights, for appellant.
    John P. Sullivan, Clayton, for respondent.
   ORDER

PER CURIAM.

Appeal from an order of the trial court on appellant’s motion to modify the maintenance and child support provisions of a dissolution decree. A written opinion would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

Motion of respondent for damages under Rule 84.19 denied.


author: CRANDALL, Judge.

text:
    Phyllis NICHOLSON, Individually and as Administratrix of the Estate of Charles Dean Nicholson, Decedent, Appellant, v. Charles E. NICHOLSON, Respondent.
    No. 48188.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 29, 1985.
    Michael Lee Maynard, Flat River, for appellant.
    John W. Howald, Hillsboro, for respondent.
   CRANDALL, Judge.

Plaintiff, Phyllis Nicholson, individually and as Administratrix of the Estate of Charles Dean Nicholson, decedent, filed a multi-count action against defendant Charles E. Nicholson. She appeals from the dismissal of her petition without prejudice for failure to prosecute. We dismiss the appeal.

Plaintiff filed her petition, individually and in her representative capacity, for conversion against the defendant who was the father of Charles Dean Nicholson, deceased. After almost four years of virtual inactivity in the action, the clerk of the court prepared a dismissal docket which included this case. When nothing was done by plaintiff to remove it from the dismissal docket, the petition was dismissed without prejudice at plaintiff’s costs.

Plaintiff claims she did not receive proper notice of the impending dismissal. However, the legal file indicates notice was sent to plaintiff. We need not reach the merits of this point on appeal because we find there was no appealable order.

In order for an appeal to lie, there must be a final judgment or order. § 512.-020, RSMo (1978); Hamilton v. Hamilton, 661 S.W.2d 82, 83 (Mo.App.1983). Certainly a dismissal with prejudice, assuming that all claims are adjudicated and all parties are accounted for, acts as a bar to any further litigation of the claims therein involved. Rule 67.03. See e.g. Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo.App.1983). Since it finally decides that litigation, it is clearly appealable. Miller v. Schultz, 614 S.W.2d 11, 12-13 (Mo.App.1981); Granger v. Barber, 361 Mo. 716, 236 S.W.2d 293, 294 (1951).

The difficulty, and confusion in the case law, arises when there is a dismissal without prejudice or a dismissal with leave to amend. Is such an order appealable? Defendant cites Miller v. Schultz, 614 S.W.2d at 13, for the proposition that “[a]n asserted order of dismissal without prejudice or with leave to amend is not a final judgment from which an appeal may be taken.” While this was a correct statement within the context of the Miller case, it is overly broad without further refinement.

In Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), a dismissal without prejudice for failure to state a claim upon which relief can be granted was held to be appeal-able where plaintiff chose to stand on that petition. In Stonebarger v. Emerson Electric Co., 668 S.W.2d 187 (Mo.App.1984), this author wrote an opinion deciding the appeal on the merits where there had been a dismissal without prejudice for lack of subject matter jurisdiction. See also Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769 (Mo.App.1983); Parmer v. Bean, 636 S.W.2d 691 (Mo.App.1982).

Conceptually it is therefore necessary to look at what was actually dismissed. Did the dismissal amount to a mere dismissal of the petition or was it a dismissal of the action itself? White v. Sievers, 359 Mo. 145, 221 S.W.2d 118, 123 (1949). If the dismissal was such that a refiling of the petition at that time would be a futile act, then the order of dismissal is appealable. Even a judgment of dismissal without prejudice may be res judicata of what is actually decided by it. Healy v. Atchison, Topeka & Santa Fe Railroad Co., 287 S.W.2d 813, 815 (Mo.1956); Douglas v. Thompson, 286 S.W.2d 833, 834 (Mo.1956). It may be essential to appeal from such a dismissal to prevent a loss of rights. Id.

Turning to the present case, it is clear that the dismissal without prejudice was simply a dismissal of plaintiff’s petition. It did not purport to be an adjudication of any procedural or substantive aspects of plaintiff’s action. Plaintiff could have refiled her petition within a year of the dismissal under § 516.230, RSMo (1978), the Missouri Savings Statute, and proceeded anew. Since the dismissal of plaintiff’s petition was not meant to be a dismissal of plaintiff’s action, the order does not dispose of the case and is not final. Knight v. Keaton, 660 S.W.2d 752, 753 (Mo.App.1983). We therefore hold that under the record of this case, the dismissal was not an appealable order.

The appeal is dismissed.

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


text:
    Edward SCHLETT and Marjorie Schlett, his wife, Plaintiffs-Respondents, v. ANTONIA FIRE PROTECTION DISTRICT, Oliver Stuckmeyer, Sherman Friedman, E.T. Asberry, L.J. Schnable, Ambrose Wingbermuehle, & Union Electric, Defendants-Appellants.
    No. 48221.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 29, 1985.

      Albert W. Dieffenbach, Hillsboro, for defendants-appellants.
    Hale W. Brown, Kirkwood, for plaintiffs-respondents.
   SMITH, Presiding Judge.

Appellants, the Antonia Fire Protection District, its directors, fire marshall and fire chief, appeal from a judgment enjoining them from enforcing an ordinance of the district against plaintiffs. We affirm.

The plaintiffs own a home within the fire protection district. Prior to building they obtained a building permit from the district which contained the language “fire hydrant required on Highway 21 across from this subdivision.” Upon completion of the house plaintiffs obtained an occupancy permit from Jefferson County. They also sought an occupancy permit from the district which was refused unless plaintiffs installed at their expense a fire hydrant on property belonging to the local water company. Without an occupancy permit from the district Union Electric refused electrical service to the property. This refusal was mandated by an ordinance of the district precluding such service in the absence of a district occupancy permit. The position of Union Electric is essentially one of neutrality and it has not appealed from the injunction requiring it to provide electrical service.

The evidence established that the ordinances of the district prohibit construction of a new structure or addition to a structure in the absence of a plat showing the proposed location of new fire hydrants. This plat must be approved by the fire marshall. The nearest fire hydrant to plaintiffs’ property is 900 feet which is 300 more feet than acceptable to the district. The fire hydrant required of plaintiffs will also be available to those neighbors who built prior to the effective date of the ordinance and to subsequent builders whose structures are within 600 feet of the hydrant. The hydrant required by the district would be located 300 to 600 feet from the building site on land of the water company. There was no evidence that plaintiffs’ property constitutes an unusual fire hazard or constitutes a fire threat to nearby property-

Plaintiffs’ attack on the ordinance is on several fronts. We need not review them all. Section 321.600 RSMo 1978 (Cum.Supp.1982) grants the district certain powers including authority to pass ordinances for fire prevention and fire protection “not in conflict with the constitution and laws of this state.” That power has been upheld as it applies to ordinances proscribing certain types of building materials, R.A. Vorhof Const. Co. v. Black Jack Fire District, 454 S.W.2d 588 (Mo.App.1970); to ordinances requiring building permits and setting a general building code, Community Fire Protection District v. Board of Education, 315 S.W.2d 873 (Mo.App.1958); to ordinances providing for inspection and approval of new buildings or structures, Easy Living Mobile Manor, Inc., v. Eureka Fire Protection District, 513 S.W.2d 736 (Mo.App.1974), Wellston Fire Protection District v. State Bank and Trust Company, 282 S.W.2d 171 (Mo.App.1955); to ordinances limiting or restricting usage of buildings in which fire hazards exist, Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628 (1929), Kalbfell v. City of St. Louis, 357 Mo. 986, 211 S.W.2d 911 (1948). Fire districts also have the authority to procure water and hydrants, Waterworks Co. v. Webb City, 78 Mo.App. 422 (1899).

All of the cases, however, recognize that an ordinance must meet the test of reasonableness. That determination may be based on the face of the ordinance or on a state of facts which affects its operation. Stegmann v. Weeke, 279 Mo. 140, 214 S.W. 137 (1919) [3, 4], In determining the reasonableness of fire protection ordinances the court is justified in assessing whether the use of the property by its owner seriously affects the general public and society or is a detriment to that society. Bellerive Inv. Co. v. Kansas City, supra, [20]. While an ordinance may be valid in its general aspects, as to a particular state of facts involving a particular owner affected thereby, it may be so clearly arbitrary and unreasonable as to be unenforceable. Wilson v. City of Waynesville, 615 S.W.2d 640 (Mo.App.1981) [6-8].

We find it unnecessary to determine the general extent of the district’s authority to require by ordinance the providing of fire hydrants by developers of property. We need simply say that the ordinance here requiring plaintiffs to provide at their expense, as a precondition to the use of their property, a fire hydrant to protect their neighbors is arbitrary and unreasonable as to plaintiffs. Their home and property presents no unusual fire hazard that would justify imposing on them the financial obligation to provide fire protection for the neighborhood. The trial court correctly stated that it could “find no authority in the Fire District enabling statutes that would grant such authority to tax and single out selective individuals for what is the general obligation of the district. Casting the burden as they do is unreasonable and arbitrary and cannot be justified under any theory of police power regulation_” We agree.

Judgment affirmed.

SNYDER and SATZ, JJ., concur.


author: GAERTNER, Judge.

text:
    Felicia LEWIS, et al., Plaintiffs, v. BARNES HOSPITAL, Defendant/Defendant, Richard Boardman, Intervenor/Appellant.
    No. 48264.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 29, 1985.

      Stanley E. Goldstein, Clayton, for inter-venor, appellant.
    G. Keith Phoenix, St. Louis, for defendant Barnes Hosp.

      Larry W. Glenn, St. Louis, for plaintiffs.
   GAERTNER, Judge.

On April 10, 1979, plaintiff, Felicia Lewis, underwent surgery in Barnes Hospital. While in the operating room and still under the effects of anesthesia, a nurse dropped an overhead operating light or light handle on plaintiff, causing injury to her head. Plaintiff and her mother retained an attorney, Scott Kell, to represent them in their action against Barnes Hospital. Kell sought appellant Richard Boardman to aid him in this representation.

Two years passed and no action had been taken against Barnes Hospital. On April 25, 1981, appellant and Kell were dismissed as plaintiff’s attorneys. A new attorney was retained who filed suit against appellant and Kell for legal malpractice, alleging they let the statute of limitations run on the medical malpractice action. Plaintiff’s second attorney also filed this action against defendant Barnes Hospital, alleging medical malpractice. Appellant filed a motion to intervene and a motion to consolidate the legal malpractice suit against him and the medical malpractice suit against the hospital. Barnes filed a motion to dismiss on the grounds the statute of limitations for medical malpractice had run pursuant to the provisions of § 516.105, RSMo. 1978.

The trial judge heard all three motions together. The motions to intervene and to consolidate were denied and the hospital’s motion to dismiss was sustained. Board-man alone appeals. We affirm.

Appellant asserts he is entitled to intervene as a matter of right. Rule 52.-12(a) establishes a three-fold test as a prerequisite to intervention as a matter of right: (1) the applicant must claim an interest in the property or transaction which is the subject of the action, and (2) he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, and (3) his interest is not adequately protected by an existing party. Alsbach v. Bader, 616 S.W.2d 147, 150 (Mo.App.1981). That appellant has an interest in the medical malpractice case is obvious. Plaintiff can have but one recovery for her injury. If she obtains that recovery against the hospital, appellant would be exonerated. To the extent that plaintiff may possibly be indifferent as to whether she is compensated through a medical malpractice action or a legal malpractice action, it is at least arguable that appellant’s interest may not be adequately protected by existing parties. However, appellant falls short of meeting the second prong of the three-fold test under the circumstances of this case.

Appellant argues that there is a common issue in both the medical malpractice case and the legal malpractice case. He contends that since plaintiff’s surgery was completed at the time of her injury, the carelessness of the clean-up nurse amounted to ordinary, rather than professional, negligence thereby falling within the five year statute of limitations, § 516.120, RSMo.1978 rather than the two year limitation upon actions against health care providers under § 516.105, RSMo.1978. Therefore, he argues, the determination that the medical malpractice case is barred by § 516.105, would preclude him from asserting the applicability of the five year statute in the legal malpractice case against him. We disagree.

Appellant’s fears that the preclusion arises by reason of the doctrines of res judicata or collateral estoppel are unfounded. Each of these doctrines apply only in specific circumstances. “Traditionally, res judicata (claim preclusion) precludes the same parties or their privities from reliti-gating the same cause of action whereas collateral estoppel (issue preclusion) precludes the same parties or those in privity from relitigating issues which have been previously litigated.” American Polled Hereford v. City of Kansas City, 626 S.W.2d 237, 241 (Mo.1982). Neither situation exists here. Obviously the cause of action for medical malpractice is not the same as the cause of action for legal malpractice. Further, appellant is not in privity with any party to the medical malpractice case.

Application of the doctrine of res judicata requires the concurrence of four elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the person or parties to the cause of action, and (4) identity of the quality of the person for or against whom a claim is made. Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. banc 1966); Eugene Alper Construction Co., Inc. v. Joe Garavelli’s of Westport, Inc., 655 S.W.2d 132, 136 (Mo.App.1983). Only the first of these elements is present here. Res judicata may not be invoked to prevent appellant from asserting the applicability of the five year statute as a defense to the legal malpractice action against him.

Invocation of the doctrine of collateral estoppel also requires four elements: (1) the issue decided in the prior litigation is identical with the issue in the present action; (2) the prior adjudication resulted in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with the party to the prior adjudication, and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Oates v. Safeco Insurance Company of America, 583 S.W.2d 713, 719 (Mo. banc 1979). Since appellant is not a party or in privity with a party to the medical malpractice case and since he has not had an opportunity to litigate the issue, collateral estoppel does not preclude him from litigating the issue of the appropriate statute of limitations in the legal malpractice case.

Appellant’s reliance on Stoverink v. Morgan, 660 S.W.2d 743 (Mo.App.1983) is misplaced. There, the principles of res ju-dicata and collateral estoppel were held to bar a subrogation action because the privity of contract between an insured and an insurer and the derivative nature of a sub-rogation claim caused the insurer to be bound by the adjudication rendered in a prior action to which the insured was a party. No such relationship exists between plaintiff and appellant. The latter is not bound by the adjudication in the medical malpractice case nor is he precluded from litigating the statute of limitations question in the legal malpractice case.

Since appellant has no right to intervene he is not a party aggrieved by the dismissal of plaintiff’s case against Barnes Hospital. Accordingly he has no standing to appeal that dismissal. Therefore, we do not reach his second point that the trial court erred in holding the two year statute of limitations applicable.

Judgment affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . The phrase “quality of the person” apparently refers to the status in which he sues or is sued. For example, in Eugene Alper Construction Co., Inc., v. Joe Garavelli's of Westport, Inc., supra, a concluded action against an individual was not a bar to a second action against the same person as a director and shareholder of a corporation.


author: PUDLOWSKI, Presiding Judge.

text:
    Louise APPERSON, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant.
    No. 48354.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 29, 1985.

      Thomas C. DeVoto, St. Louis, for defendant-appellant.
    Charles H. Billings, St. Louis, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a cause of action seeking damages for injuries sustained as a result of a collision between a vehicle being operated by plaintiff-respondent and a vehicle being operated on behalf of defendant-appellant. The jury returned a verdict in favor of plaintiff in the sum of $10,500. We affirm.

This case arises out of a collision between a bus being operated by Vincent Powell on behalf of defendant, Bi-State Development Agency, and a car being operated by plaintiff, Louise Apperson. The collision occurred at or near the entrance to a Majic Market on the corner of Pelham and Broadway in the City of St. Louis.

Plaintiff had pulled into the parking lot of the Majic Market off Pelham so that her passenger could go into the store. The lot was full so plaintiff had to park at an angle extending over the sidewalk. The vehicle .was running but was not in gear.

Bi-State’s first point on appeal alleges trial court error in failing to sustain their motion for a directed verdict at the close of plaintiffs case, failing to sustain their motion for a judgment not withstanding the verdict and failing to sustain their motion for a new trial. Specifically, Bi-State argues that plaintiffs evidence is based upon an impossible fact scenario and is unsupported by any credible evidence.

In resolving this issue we review the evidence in light most favorable to the plaintiff, with all reasonable inferences to be drawn therefrom, and disregard the defendant’s evidence unless it aids the plaintiff’s case. Lewis v. Envirotech Corp., 674 S.W.2d 105 (Mo.App.1984). In the case at bar, plaintiff testified she parked at an angle in the parking lot extending over the sidewalk. Other witnesses testified similarly. While no witness observed the accident, plaintiff’s witnesses testified to seeing the front end of the bus behind the vehicle immediately after the impact. Additionally, there was testimony of an admission by the bus driver.

Bi-State argues that the physical evidence is such that the accident could not have happened as the witnesses testified, and as such, the “physical facts” rule applies. In support of this argument, Bi-State presented demonstrative evidence. However, Bi-State’s evidence does not disprove plaintiff’s theory. The demonstrative evidence only proved a possible alternative for the accident. Further, the jury evaluated the evidence of both parties. They chose to accept plaintiff’s theory. The “physical facts” rule has no application where the credibility of witnesses is involved. Anderson v. Orschlen Bros. Truck Lines, Inc., 393 S.W.2d 452, 460 (Mo.1965). Additionally, this court will reject the testimony of plaintiff’s witnesses only when the conclusion is so clear and indisputable as to leave no room in the reasonable mind for the entertainment of any conclusion. Closser v. Becker, 308 S.W.2d 728 (Mo.1958). We do not find plaintiff’s testimony indisputable.

Additionally, Bi-State alleges the verdict and judgment was based on juror bias, prejudice and sympathy. The jury awarded plaintiff ten thousand five hundred dollars ($10,500).

“The mere excessiveness of the verdict, standing alone, does not establish that it was the result of bias or prejudice. Defendant must show that the verdict was glaringly unwarranted by the evidence.” While v. St. Louis-San Francisco Ry. Co., 602 S.W.2d 748, 755 (Mo.App.1980).

At trial, in addition to her other expenses, plaintiff complained of pain in her legs and back and complained of numbness in her legs. The jury had the option to disbelieve plaintiffs testimony. They chose to believe plaintiff and awarded damages. It has long been established that pain and suffering are recoverable as damages.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.