author: KAROHL, Presiding Judge.

text:
    Lisa FORD, a Minor, et al., Plaintiffs-Appellants, v. GOFFSTEIN REALTY, INC., et al., Defendants-Respondents.
    No. 47357.
    Missouri Court of Appeals, Eastern District.
    May 22, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 12, 1984.
    Case Transferred to Supreme Court Sept. 19, 1984.
    Case Retransferred to Court of Appeals April 12, 1985.
    Original Opinion Reinstated April 16, 1985.

      Richard Alan Cooper, Whalen, Murphy, Reid, Davis, Garvin & Tobben, St. Louis, for plaintiffs-appellants.
    Robert C. Ely, St. Louis, for defendants-respondents.
   KAROHL, Presiding Judge.

Plaintiffs-appellants, Lisa, Jacqualine, and Nicole Ford, appeal dismissal of their petition for personal injuries for failure to state a cause of action.

Plaintiffs are the minor children of Ren-ny and Myrtle Ford. The injuries alleged are the result of lead poisoning from ingestion of lead based paint. The petition alleges that defendant Fugeger was the owner of a dwelling house located in the city of St. Louis and that defendant Goff-stein Realty Inc. was engaged in the business of selling real estate and was acting as the duly authorized and appointed agent of defendant Fugeger. Plaintiffs’ parents purchased a house from defendant Fugeger.

It is difficult to discern the legal theory on which plaintiffs rely. The petition alleges negligence (defendants knew or should have known of the presence of lead based paint and negligently concealed and failed to correct or warn); misrepresentation (defendants assured plaintiffs the premises were safe and habitable); nuisance (maintaining and permitting occupancy of premises with the known hazard and in violation of city ordinances); a tort derived from violation of city ordinances prohibiting an owner from use of lead-bearing substances and permitting occupancy of dwelling units not in compliance; and intentional tort (defendants applied the lead-bearing paint to the house knowing both the danger and that existing ordinances prohibited its use).

The trial court dismissed the petition for failure to state a cause of action finding that the ordinances pled do not apply to a claim made by a purchaser against a former owner or manager of real estate where the injuries claimed occurred after the sale of the real estate. In addition, the motion to dismiss was granted because there is no common law cause of action for purchasers of real estate for personal injuries occurring after the sale of real estate arising out of a condition of the premises at the time of sale.

In determining the sufficiency of a petition challenged by a motion to dismiss we give the petition its broadest intendment, treat all facts alleged as true, and construe the allegations favorably to plaintiffs to determine whether they invoke principles of substantive law. Gaines v. Monsanto Company, 655 S.W.2d 568, 570 (Mo.App.1983).

The City of St. Louis ordinances that plaintiffs rely on are, by their terms, applicable only to the owners of the buildings (landlords). When the children were exposed to the lead paint their parents and not the defendants were the owners of the building. Hence the ordinances do not support a cause of action against the defendants.

As noted in Combow v. Kansas City Ground Inv. Co., 358 Mo. 934, 218 S.W.2d 539, 541 (1949) “[i]t seems to be well settled in this state and in other jurisdictions that, absent an express agreement to the contrary, the seller of real estate cannot be held liable for defective condition of the premises.” Combow, 218 S.W.2d at 541. A purchaser of real estate, other than a newly constructed home, has no cause of action in negligence against its vendor but may have a contract claim based on express warranties. Combow, 218 S.W.2d at 541. Plaintiffs here have made no claim based on the sale contract.

We find that the court properly concluded that the petition failed to state a cause of action for negligence, for nuisance and for violation of city ordinances. However we hold that the court erred in dismissing the petition where the allegations of intentional misrepresentation or intentional acts, in their broadest intendment invoked principles of substantive law on which plaintiff may recover. Gaines v. Monsanto Company, 655 S.W.2d 568, 570 (Mo.App.1983). “A petition is not insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of essential fact.” Tripp v. Harryman, 613 S.W.2d 943, 948 (Mo.App.1981).

Because there are imperfections and deficiencies in the pleadings on the theory of intentional misrepresentation, intentional act and warranty we remand to give the plaintiffs an opportunity to properly and fully state a cause of action on these theories only.

REINHARD and CRANDALL, JJ., concur.

      .Ordinance No. 51637, Section 390.060 (in effect when house was purchased but since repealed):
      Vacant dwelling unit — Whenever a dwelling unit is vacant, it shall be the duty of the owner or agent to determine that such dwelling unit is in a clean, sanitary and habitable condition before renting or permitting such unit to be occupied by another occupant. Walls, ceilings and floors shall be in sound, useable condition with clean sanitary finish.
      Section 390.080 — "Occupancies prohibited, — No owner of a building which contains a dwelling unit or dwelling units shall permit the occupancy of any dwelling units not in compliance with the requirements of law.”

      . In Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo. banc 1972) the Missouri Supreme Court abandoned the doctrine of caveat emptor for the sale of new homes and noted that in the sale of new houses there is an implied warranty of fitness. Old Warson at 801, which applies only to the first purchaser. Crowder v. Vandendeale, 564 S.W.2d 879, 881-82 (Mo. banc 1978).

      . We make no judgment on the merits of these arguments.


source: Caselaw Access Project

author: LOWENSTEIN, Judge. DIXON, Judge,

license: Public Domain

text:
    Kenneth W. SHEARIN, Appellant, v. FLETCHER/MAYO/ASSOCIATES, INC., Respondent.
    No. WD 35150.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.

      Kranitz & Kranitz, P.C., St. Joseph, for appellant.
    R. Dan Boulware, Watkins, Boulware, Lucas & Miner, St. Joseph, for respondent.
    Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.
   LOWENSTEIN, Judge.

This is the second appeal for this breach of an employment contract case. The first trial resulted in a jury verdict for Shearin, the plaintiff. Fletcher/Mayo, the defendant appealed and the case was remanded for a new trial because of instructional error. See Shearin v. Fletcher/Mayo/Associates, Inc., 647 S.W.2d 127 (Mo.App.1983). The judgment on the second jury verdict, this time for the defendant, Fletcher/Mayo, is now appealed by Shearin. For this opinion abbreviated facts are set out. For more detail see Shearin I, supra.

After some negotiations, Fletcher/Mayo, an advertising agency, successfully recruited Shearin to move from Ohio to St. Joseph,' Missouri to be a Vice President and Creative/Marketing Director of their advertising department. The subsequent suit dealt with an employment contract requested by Shearin and drafted by Fletcher/Mayo. The original contract had a three year term of employment, but also contained a clause that allowed the agreement to be terminated by either party at any time for justifiable cause.

There was some conflicting evidence as to how and when Shearin returned the contract, which had been pre-signed by Fletcher/ Mayo, but when he did, Shearin had changed the termination clause to in effect give himself a three year non-terminable contract of employment. Shearin had signed the contract and initialed the change. Fletcher/Mayo never initialed the change but put the altered contract into Shearin’s employment file. After working for ten months Shearin was terminated because he was not working well with other departments and because of management’s dissatisfaction with his performance. The ultimate issue for the jury was whether or not a contract or obligation existed giving Shearin a cause of action for damages for the portion of the three years he could not work.

Shearin’s first point concerns the form of certain questions asked by Fletcher/Mayo of its own witnesses. Although a substantial question exists as to the timeliness and specificity of objections, without preservation this court will assume that Shearin preserved this question on appeal by timely objection at trial. Shearin cites Holliman v. Cabanne, 43 Mo. 568, 570 (1869) for the proposition that witnesses should not be permitted to give their opinions upon the truth of statements by other witnesses; as an example, counsel for Fletcher/Mayo in questioning its president said that Mr. Shearin had stated the reason for his discharge was due to the egotistical concerns of Mr. Mayo and asked Fletcher if he felt that were true. However, the Hol-liman court went on to say that witnesses “may do the same thing in effect by denying the fact stated.” It is also interesting that the Missouri Supreme Court did not reverse the trial court’s decision to let a witness answer whether a previous witness’s statement was true or not. Instead the court held that the question was simply informal, and its answer could not have materially affected the case.

The other two cases cited for this proposition, Henson v. Kansas City, 277 Mo. 443, 210 S.W. 13, 17 (1919), and Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122 (1952) both dealt with expert medical witnesses. Not only are these cases not on point since the present case dealt with lay witnesses, but the law has changed since Henson. Even the Eick-mann case held that “the province of the jury is to hear all evidence including opinion evidence, to weigh it all, and to decide the issues.”

When Shearin first objected to the form of the question, the trial court instructed defense counsel to form his questions as hypotheticals. Shearin argues that this form was still improper, but cites no cases in support of that contention. The ultimate decision the jury had to make in this case was whether Shearin or Fletcher/Mayo was telling the truth about dealings with the employment contract. The jury can weigh the believability of witnesses’ opinions. The form of the question as a hypothetical did not materially affect this case. The request for relief under Shearin’s first point is denied.

Shearin’s second point which contains several arguments, and covers one full page in his brief is difficult to follow. Further complicating the matter is his discussion of still another argument within the argument portion. What seems to be the real matter alleged as error is the inclusion of Fletcher/Mayo’s converse, No. 5, as a tail to Shearin’s verdict director, No. 4 which reads as follows:

INSTRUCTION NO. 4
Your verdict must be for plaintiff if you believe:
First, plaintiff and defendant entered into an agreement whereby plaintiff agreed to become an employee as vice-president of defendant and to perform the duties of Creative/Marketing Director for an initial employment term of three years at an annual salary of $37,-500.00, beginning 16 April 1979; the agreement could not be terminated during the initial three-year term; and defendant agreed to employ plaintiff according to those terms; and Second, defendant accepted the agreement in the terms outlined in paragraph First above; and
Third, plaintiff performed his agreement; and
Fourth, defendant failed to perform its agreement; and
Fifth, plaintiff was thereby damaged unless you believe Plaintiff is not entitled to recover by reason of Instruction No. 5.
INSTRUCTION NO. 5
Your verdict must be for the Defendant if you believe the Defendant, by Rod Fletcher and/or Glenn Mayo, told the Plaintiff that the Defendant was not agreeable to the change made by the Plaintiff to Paragraph 7 of the alleged Employment Contract.

He says the evidence showed acts of the company as amounting to an estoppel, (letting him come to St. Joseph, starting work and electing him a vice-president) so the company’s converse about telling Shearin it could not accept the new termination clause really did not converse the elements of his case. The problem with this argument is the case was pleaded and the jury was instructed on whether there was a contract between the parties. This is borne out by an affidavit of a juror which gave rise to the unusual twist in point 5, infra, that says the jury was trying to decide, “whether the ‘contract’ was a contract.”

With regard to the question of the doctrine of estoppel, this court did say in Shea-rin I, 647 S.W.2d at 129 the jury could find that estoppel would apply under the facts. But it was the responsibility of Shearin to plead that theory in the second trial. Shea-rin claims that the following language of paragraph II of his second amended petition specifically pleads estoppel:

That on or about 16 April 1979, plaintiff was employed in the position of Vice-President and Creative Director of defendant, under written contract, copy of which is attached hereto and a part hereof by reference; that in such capacity, plaintiff faithfully served defendant and its best interests, and promoted the business of defendant to the exclusion of 11 other interests; and that defendant accepted the benefits of such contract and the labor of plaintiff.

In Patterson v. State Board of Optometry, 668 S.W.2d 240, 243 (Mo.App.1984) the court set out the three elements necessary for the doctrine of estoppel: 1) an admission, statement, or act inconsistent with a claim afterward asserted and sued upon, 2) action by the reliant party on faith of such admission, statement or act, and 3) injury to the reliant party resulting from allowing the first party to contradict or repudiate such admission, statement or act. Even reading Shearin’s petition in a light most favorable to him, those elements are not evident. Since Shearin failed to affirmatively plead estoppel, he cannot assert the doctrine at this time.

The second issue under Point II is whether Fletcher/Mayo’s Jury Instruction No. 5 (set out supra) met the elements of an affirmative defense as required by MAI 33.01, and hypothesized an ultimate issue which would defeat Shearin’s claim.

Since Shearin did not plead estoppel, this court need only be concerned with the elements of a valid contract. Instruction No. 5 addresses the ultimate issue of whether Fletcher/Mayo rejected the counteroffer made by Shearin when he changed the language of the contract. Shearin contends that the ultimate issue is whether he understood that by changing the contract he had in fact rejected the original offer, and was thus working without a formal contract. It is basic that everyone is conclusively presumed to know the law, so it is presumed that Shearin knew the effect of his changing the contract. The Missouri Supreme Court aptly discussed this in Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82, 89 (1936), when it said:

[T]he law does not read the ignorant and unwary out of the pale of its protecting and remedial influence; but the practical administration of justice has rendered it expedient to set up certain standards, and the law, which everyone is conclusively presumed to know, although the courts themselves often experience considerable difficulty and labor in final-' ly determining what the law of a given case is, recognizes established principles of conduct governing men in their commercial transactions.

Shearin’s contention is therefore unfounded and Instruction No. 5 was properly submitted to the jury.

Shearin’s third point concerns Jury Instruction No. 4. He claims this verdict directing instruction should not have contained a “tail” which told the jury if it believed Instruction No. 5 it must find for the defendant. Shearin points to MAI 33.01 which says “there is no requirement” that this tail be used for affirmative converses. This language does not lead to a per se reversal if a tail is included. These tails are not meant to emphasize the defendant’s case. They are for the benefit of the jury to indicate which instructions should be considered together. While there is a technical difference between an affirmative defense and an affirmative converse, (the former is a new matter separately pled by the defendant, which if true constitutes a defense, while the latter is an hypothesized ultimate issue, which if true defeats the plaintiff’s claim) if the jury believes either proposition, the result is the same — they must find for the defendant. This court does not find reversible error in the inclusion of the tail.

Shearin’s fourth point is that there was sufficient evidence at trial to submit the question of punitive damages to the jury. For breach of contract cases, punitive damages are not allowed except where the breach amounts to an independent willful tort and there is evidence of malice, wontonness or oppression. Greening v. Klamen, 652 S.W.2d 730 (Mo.App.1983); Wallick v. First State Bank of Farmington, 532 S.W.2d 520, 524 (Mo.App.1976). Shearin points to four instances constituting substantial malice of actual or legal malice: 1) Fletcher/Mayo told employee witnesses that an award to Shearin was money out of their pockets, 2) Shearin was paid less in the repurchase of his shares than he was initially required to pay out as “punishment for his activities,” 3) letter of reference used “buzz words” to tip off prospective employers to call the company to get the “real” story, 4) three vice-presidents conspired to get rid of Shearin.

The first three instances concern acts that occurred after Shearin’s termination. This court must view this evidence in a light most favorable to the plaintiff giving him the benefit of all reasonable inferences to be drawn therefrom. Smith v. Allied Super Markets, Inc., 524 S.W.2d 848, 849 (Mo. banc 1975); Bandag of Springfield, Inc. v. Bandag, Inc., 662 S.W.2d 546, 551 (Mo.App.1983). Even assuming that those later acts reflect an earlier intent, this evidence taken as a whole does not rise to the level of being substantial evidence which is necessary to support a submission of an issue to the jury. Id.

The fifth point of Shearin’s lumps three separate arguments which for here for the sake of clarity are titled Jury or Official Misconduct. These preliminary facts are in order. The court’s sworn deputy clerk, Alicia Smith, although not sworn as a bailiff, acted as bailiff for the trial. The day following the verdict (signed by 9 jurors) one juror sent a letter to plaintiff’s counsel. The letter stated the lady (Smith) who served as bailiff entered the jury room sometime after deliberations had begun and while making coffee, jokingly said to the jurors, words to the effect “they should hurry up and settle the decision because it was getting close to 5:00 o’clock and she and the rest of us wanted to get home.” The juror wrote this may have amounted to an undue influence changing the 7-5 vote for defendant to, within 10 minutes, the 9-3 result. With the agreement of Fletcher/Mayo a hearing on Shearin’s motion for new trial was held at which evidence was taken from Smith and most of the jurors about what was said and done in the jury room after Smith’s comments. During this hearing several jurors said they knew how they were going to vote when they went to the jury room.

Shearin first contends error and asks for a reversal on the basis Smith was not a sheriff nor a deputy nor sworn as bailiff therefore jury should not have been entrusted to her. The trial court said Smith (a duly sworn and acting deputy clerk of the division) was used instead of a deputy sheriff as an economy measure to save the time and expense of requiring a deputy to act as bailiff when an officer of the court was available. Shearin admits no Missouri statute exists governing bailiffs in civil cases.

The cases relied upon by Shearin, State v. Crockett, 90 Mo. 37, 1 S.W. 753 (1886) and Orscheln v. Scott, 79 Mo. App. 534 (1899), pertain to the disqualification of the sheriff in summoning an impartial venire under the then jury statutes, and do not aid his point. Despite the lack of cases and absence of a statute on the subject, it is within the power of the trial court, as here, to appoint an elisor to act as bailiff and take charge of a jury retiring to obtain a verdict. In a civil case the elisor need not be the sheriff, a deputy or the coroner. The appointment of court personnel to such duties as acting as bailiff is highly preferable.

That Ms. Smith did not take an oath as bailiff should not cause a new trial to be granted. The usual practice would be to administer an oath to the officer in charge of the jury, but, absent statutory provision, the failure of the court to administer an oath does not mandate reversal. Deranleau v. Jandt, 37 Neb. 532, 56 N.W. 299, 300 (1893); Boreham v. Byrne, 83 Gal. 23, 23 P. 212, 214 (1890). Cf. Harris v. State, 233 Ala. 196, 172 So. 347, 348 (1936). Further, it does not appear the plaintiff was prejudiced by the failure to administer an oath to the officer. Deranleau, supra, 56 N.W. at 300.

The plaintiff’s next argument that the uttered remarks of Smith to the jury while in the jury room “were or appeared to be prejudicial to the deliberations of the jury, and caused or appeared to cause certain jurors to abandon their positions and change their votes ...,” is somewhat vexing. As stated earlier the hearing on the new trial motion disclosed Smith entered the room at the jury’s request for her to make coffee. No deliberations took place while she was in the room. Smith, and all the juror’s who testified said her comments about wanting to go home at 5:00 o’clock were made in a joking or teasing manner. The actual time the comments were made was placed at 3:30 by Smith and several jurors, but about 45 minutes later by the juror who wrote the letter.

The threshold matter on this point is the long standing rule that a juror may not impeach the verdict as to misconduct inside or outside the jury room whether before or after the jury is discharged. Jones v. Wahlic, 667 S.W.2d 729, 731 (Mo.App.1984). The inadmissibility of such evidence whether by testimony affidavit or otherwise, may however be waived, and when received in evidence without objection, the party who should have objected waives all right to complain of the court’s consideration of such evidence. Thorn v. Cross, 201 S.W.2d 492, 496-97 (Mo.App.1947). The record here shows no objection to the admissibility of the evidence by Fletcher/Mayo so the rule does not apply in this case.

Shearin states the comments were innocent but improper and, while couched in words that they “appeared” to cause a change in the vote, seems to suggest the effect was similar to a “hammer instruction” being given.

The comments here were improper. Court officers should not do anything which might influence the conduct of the jury in favor of either party. 89 C.J.S. Trial Section 455. The trial court was justified in finding the actions, though improper, did not amount to jury misconduct and result in prejudice to the plaintiff. Rovak v. Schwartz, 339 S.W.2d 756, 757, 758 (Mo.1960); Bailey v. Hilleman, 566 S.W.2d 504, 506 (Mo.App.1978). Considered on the merits it appears from the record of the two jurors who did change their votes prior to return of the verdict at 4:50, one had been in the restroom and did not hear the comments in question — the other’s testimony related to facts entirely different from what happened. All 9 jurors who signed the verdict testified the comments were joking in nature and did not influence their vote in any way.

This case falls far short of the situation in Thorn, supra, where a juror deliberately concealed direct knowledge of the accident in question. State ex rel. Highway Commission v. Lock, 643 S.W.2d 46, 48 (Mo.App.1982). Based upon similar facts the reasoning and result found in Williams v. Yellow Cab Co., 11 Ill.App.2d 112, 136 N.E.2d 582 (1956) 136 N.E.2d at page 585 here applies:

The case was given to the jury around 4:30 o’clock in the afternoon. The parties agreed that if a verdict was not reached by 10:30 the jury should be permitted to separate. A verdict was reached about that time and returned in court the following morning. It appears from the testimony of the bailiffs in charge of the jury that in response to questions from the jury as to how long they were to stay, a bailiff told them they were to stay until they reached a verdict, and later, around 10 o’clock, a bailiff jokingly said, “I’m going up to get the cots.” A few minutes after 10:30 a bailiff went to the jury room to dismiss the jury and was informed that they had reached a decision. Defendants concede that the conduct of the bailiffs was free from any improper motive, but contend that it coerced the jury into returning a verdict to their prejudice. The jury was polled the following morning and none repudiated his verdict. The statements complained of should not have been made by the bailiffs, but we find nothing to support the claim of coercion of the jury and prejudice to the defendants.

Horton v. D.I. Operating Co., 84 Nev. 694, 448 P.2d 36, 37 (1968). See also: Carson v. Brauer, 234 Or. 333, 382 P.2d 79, 84 (1963); Brossard v. Chicago M & St. P. Ry., 167 Iowa 703, 149 N.W. 915, 923 (1914).

Shearin’s final subpoint on misconduct is based upon the testimony of the juror’s at the hearing on the motion. Three jurors during the course of testifying on the comments of the bailiff said, without objection, they had formulated an opinion before deliberations commenced, knew how they were going to vote when they left the box or before entering the jury room. The contention is this conduct violated MAI No. 2.01, given to the jury which tells them justice requires they not make up their minds until all the evidence is heard. None of the conduct of the jur- or’s of which Shearin complains has violated the instruction. That after all the evidence had been received 3 jurors had formulated an opinion does not call for a reversal. The point is denied.

The judgment is affirmed.

All concur.

DIXON, Judge,

concurring.

I reluctantly concur with the disposition in this case of the issue of juror misconduct, and I write to express my reasons for that reluctance. The majority opinion reaches the issue and decides it by accepting the evidence from the jurors. In doing so, it relies upon an exception to the general rule arising from many decisions in the Courts of Appeal. My reluctance stems from two concerns. First, no Supreme Court decision holds in accord with the exception; and second, in my view, the exception rests upon a flawed rationale.

The following demonstrates my first concern.

The general rule in Missouri is that a juror’s testimony or affidavit may not be used to impeach the verdict. Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, 676 (1950); State v. Branstetter, 65 Mo. 149, 156-57 (1877). However, that rule “from which there is no variance in this jurisdiction,” Evans v. Klusmeyer, 301 Mo. 352, 363, 256 S.W. 1036, 1039 (1923), has undergone some qualification. Some opinions of the courts of appeal have stated that, if the juror’s testimony or affidavit is not objected to, the disqualification is waived. Thorn v. Cross, 201 S.W.2d 492 (Mo.App.1947).

The general rule was first stated in Pratte v. Coffman, 33 Mo. 71 (1862). There, the jurors looked at law books during their deliberations. After stating and adopting the rule, which has been called the Mansfield view, the court noted “that cases may arise, particularly when life and liberty are at stake, which may call for a departure from the rule.” Id. at 78. In those cases, the court said it would be proper to receive the jurors’ affidavits to explain extrinsic evidence showing juror misconduct.

The Pratte qualification was eliminated in State v. Branstetter, 65 Mo. 149 (1877). Relying on Sawyer v. Hann. & St. Jo. R.R. Co., 37 Mo. 240 (1866), State v. Coupenhaver, 39 Mo. 430 (1867), and State v. Underwood, 57 Mo. 40 (1874), the court adopted as the Missouri view the strict Mansfield rule, that jurors may not impeach the verdict. This perception of Missouri law was reiterated in: State v. Babb, 680 S.W.2d 150 (Mo. banc 1984); State ex rel. State Highway Comm’n v. Ballwin Plaza Corp., 474 S.W.2d 842, 848 (Mo.1971); McDaniel v. Lovelace, 439 S.W.2d 906, 909 (Mo.1969); Smugala v. Campana, 404 S.W.2d 713, 717 (Mo.1966); Romandel v. Kansas City Public Service Co., 254 S.W.2d 585, 595-96 (Mo.1953); Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S.W.2d 154 (1941); Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486 (1940); State v. Westmoreland, 126 S.W.2d 202 (Mo.1939); Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47 (1932); Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036, 1039 (1923); State v. Shields, 296 Mo. 389, 246 S.W. 932, 934 (1922).

Only in dictum, in Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430 (1948), has the Supreme Court retreated from the Mansfield rule,

[I]t is a firmly established rule in this jurisdiction that a juror may not, by his own affidavit or testimony, impeach the jury’s verdict because of the misconduct of a juror (citations omitted) unless the respondents failed to timely and properly object to the juror doing so and thereby in turn waived the incompetency of the juror to impeach the verdict.

214 S.W.2d at 433-34, citing Thorn v. Cross, 201 S.W.2d 492 (Mo.App.1947); Milburn v. Robison, 132 Mo.App. 198, 110 S.W. 598 (1908).

This dictum was repeated in Mayberry v. Clarkson Const. Co., 482 S.W.2d 721 (Mo.1972). There, the court stated, “This evidence, relied upon by plaintiffs to support the court’s action, came from jurors over defendant’s objection. The evidence was inadmissible, because a juror may not, over objection, be heard to impeach his and the jury’s verdict.” Id. at 724 (emphasis added). The court then cited the appellate decisions (e.g., Thorn v. Cross) that state the exception to the general rule.

The exception to the Mansfield rule arises only from decisions of the various districts of the Court of Appeals. Judge Ellison first stated the exception to the general (Mansfield) rule in Winn v. Reed, 61 Mo.App. 621 (1895). He said, “the rule in this state is that a juror can not impeach his own verdict, though his evidence is competent to sustain it ... but ... the affidavit of the juror Martin was admitted without objection by plaintiff. It was, therefore, before the court, and, while it could have been rejected, it was not. The court, according to the record, received it in evidence. It had probative force, and, in the absence of objection, or rejection by the court, should be considered.” Id. at 626.

Judge Ellison further articulated this new exception in Milburn v. Robison, 132 Mo.App. 198, 110 S.W. 598 (1908). There he stated, “it is said that the rule establishing the incompetency of a juror to impeach the verdict is a rule of public policy, and on that ground he should not be heard ... It does not follow that because a rule is founded on public policy it ... cannot be waived ... But where the rule is equally for the protection of the individual affected there is no reason why he should be compelled to take its benefit in spite of his desire not to invoke it.” 110 S.W. at 600.

The case upon which the majority opinion relies is Thorn v. Cross, 201 S.W.2d 492 (Mo.App.1947). The court, basing its holding on Judge Ellison’s Milburn case, stated, “the rule is that, although a verdict cannot be impeached by evidence or testimony of a juror, nevertheless, where such evidence is received without objection, the party who should have objected but fails to do so waives all right to complain against the court’s consideration of such evidence and it is to be given its natural probative value.” Id. at 497.

More recent decisions have followed the Thom holding, that when no objection is timely made, the juror’s evidence will be admitted. Among these are: State ex rel. State Highway Comm’n of Mo. v. Lock, 643 S.W.2d 46, 49-50 (Mo.App.1982); Norwood v. Lazarus, 634 S.W.2d 584, 589 (Mo.App.1982); State v. Suschank, 595 S.W.2d 295, 298 (Mo.App.1979); State v. Zweifel, 570 S.W.2d 792, 795 (Mo.App.1978); Gantz v. Leibovich, 569 S.W.2d 373, 374 (Mo.App.1978); Bailey v. Hilleman, 566 S.W.2d 504, 506 (Mo.App.1978).

This review convinces me that the Supreme Court has never really considered the issue of the validity of the exception.

As to my second concern, I do not believe the rationale, offered in Milburn as justifying the exception, is sound. The Mansfield rule is undoubtedly based upon public policy considerations. See generally J. Wigmore, Wigmore on Evidence, p. 676 et seq. (McNaughton Rev.1961).

The rationale offered in Milburn was that since the privileges of lawyers and physicians were based upon policy considerations and waiver was permitted, this should permit the waiver in the instance of the juror implying that the privilege was a one personal to the juror.

The rule of privileged communications applies to communications among jurors during retirement. Wigmore, supra, Section 2346, p. 678. The waiver principle might apply when this principle alone is the basis for the exclusion of the evidence. However, the principle to which our cases adhere, the Mansfield rule, is not based upon the doctrine of privileged communications but upon the doctrine that no witness shall be heard to allege his own turpitude. Mansfield first enunciated this rule regarding the testimony of jurors as to misconduct in the jury room in Vaise v. Delaval, 1 Term R. 11 KB 1785. In that case, the affidavits of jurors admitting their decision was based upon chance were rejected. Under this doctrine, the issue of waiver is immaterial because the exclusion does not rest upon a privilege but upon a disability of the witness founded upon a basis of public policy.

The rationale of Milburn is flawed when it finds that the exclusion is based upon a privileged communication arising from public policy (such as attorney-client and doctor-patient privileges), and therefore subject to waiver by the possessor of the privilege. The Mansfield rule is upon a different footing and waiver has no place in its application.

Despite Wigmore’s vehement criticism, the Mansfield rule has prevailed in most American jurisdictions, including our own. 8 J. Wigmore, Wigmore on Evidence, pp. 695-702 (McNaughton Rev.1961).

One thing seems certain, the door to the jury room can be shut, as the Mansfield rule requires, or it can be opened, as Wig-more suggests. It is not so certain that it can be left ajar with an exception that has no proper rationale. The exception as it presently exists simply leads to interrogation and even harassment of the jurors and to endless disputes over the validity of verdicts.

State v. Babb, supra, has now made inquiry of the jurors necessary when a separation after submission occurs. The majority opinion in Babb limits the inquiry to support of the verdict and expressly recognizes the Mansfield rule that jurors may not impeach their verdict. This will raise a difficult issue on the limits of cross-examination when evidence is offered to support the verdict. On the other hand, the concurring opinion seems to suggest that the defendant may elicit from the jurors evidence of communications to them during separation, which would violate the rule the majority announces for the limitation of the jury person’s testimony.

The issues in the instant case and those certain to arise under Babb demonstrate to me that the law of Missouri in this area is uncertain. That uncertainty will translate into further attempts by litigants to present issues in the general area of inquiry into jury deliberations and can only lead to further harassment and interrogation of jurors, which will cause jury service to be viewed as a greater burden by the general public.


author: DIXON, Judge. KENNEDY, Presiding Judge,

text:
    CAL CAULFIELD AND COMPANY, INC., Appellant, v. The CITY OF BELTON, Missouri, Respondent.
    No. WD35005.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.

      Howard E. Bodney, Steven C. Willman, Sullivan, Bodney & Hammond, Overland Park, Kan., Kevin M. McCormick, Kansas City, for appellant.
    Michael Joy, Raymore, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   DIXON, Judge.

Plaintiff Caulfield, an investment banking firm, appeals the entry of a directed verdict for the City of Belton (City) at the close of its evidence in a contract action. It asserts the court erred in directing a verdict for the City because the contractual terms were ambiguous, thus leaving a question of fact for the jury’s determination.

In December, 1979, Perry, Adams & Lewis Securities, Inc., a financial advisor, offered its services to the City to manage a bond election. The proposal begins by stating, “By this proposal we offer our professional services and our facilities as Financial Advisors_” In nine numbered paragraphs, it then sets forth Perry’s detailed obligations. By contrast, in those paragraphs the City’s sole stated obligation is to pay the clerks’ and judges’ fees incurred in the election. The proposal goes on to state:

As consideration for the services rendered by us and as reimbursement for the expenses which we are to incur, it is understood and agreed that your municipality is to pay and we are to accept a cash fee of 1% of the par value of the amount of bonds voted and issued. Such fee shall become due and payable simultaneously with delivery of the bonds to the purchaser....
It is understood and agreed there is to be no cost to the City of Belton, Missouri, for any report, analysis or work that we may do in connection with this project or expenses that we might have incurred if the election or elections should fail to carry.

In April, 1980, Perry filed a Chapter 11 petition in bankruptcy and its proposal to the City was assigned to Caulfield. Led by the efforts of Jay Dillingham, Caulfield’s employee, Caulfield complied with all of the requirements of paragraphs 1-9. A special bond election was held in October, 1980, but the issue failed. In February, 1981, the City’s attorney informed Caulfield that other firms were being invited to submit proposals for the next election and Caul-field was encouraged to do so as well. Caulfield later submitted a new proposal to the City, designating a fee of 0.006% of the issued bonds’ par value. The City turned down Caulfield’s proposal and accepted that of another firm. A successful bond election was conducted. Caulfield brought suit for a 1% fee of the $3.6 million bond issue. The court directed a verdict for the City at the close of Caulfield’s case.

The document relied upon by Caulfield as a contract is in reality an offer to contract, which required, for acceptance, the City’s undertaking to conduct an election. Neither expressly nor by necessary implication was the City bound to conduct an election. The City could not conduct such an election except by the action of its governing body and that did not occur until after the execution of the document.

When a contract is formed by offer and acceptance, “[t]here must be actual acceptance.” Doran, Inc. v. James A. Green, Jr. & Co., 654 S.W.2d 106, 109 (Mo.App.1983), citing Tanenbaum Textile Co. v. Schlanger, 287 N.Y. 400, 40 N.E.2d 225, 226-27, 28 N.Y.S.2d 729, 730-31 (1942). Likewise, if the offer prescribes the mode of acceptance, that limitation will be honored. Shortridge v. Ghio, 253 S.W.2d 838, 845 (Mo.App.1952). The 1979 proposal assigned to Caulfield is clearly an offer to act as advisor for a contemplated, but not yet ordered, bond election. It was, in essence, a bid, “an offer to contract.” Sanders v. DeWitt, 579 S.W.2d 707, 711 (Mo.App.1979). The document’s introductory language, “By this proposal we offer ... our services ...,” supplemented by the enumeration of the facets of the offer in paragraphs 1-9, also demonstrates that it is not a contract, but an offer, yet to be accepted. The proposal’s final paragraphs, which state the City’s obligations if the election were successful and its concomitant lack of obligation if it were unsuccessful clearly establish that the offer would be accepted and City bound only upon there being a successful bond election pursuant to the offer.

Caulfield’s points of error are easily disposed of. It first argues that the contract’s meaning was a question of fact for the jury. Caulfield’s proposal clearly and unambiguously set forth the terms of its offer. That it stated “election or elections” in the final paragraph does not create ambiguity. Because the proposal was unambiguous, it was the court’s duty, as a matter of law, to ascertain its meaning. Grantham v. Rockhurst University, 563 S.W.2d 147, 150 (Mo.App.1978).

Second, Caulfield argues that the proposal’s ambiguous language and the extrinsic evidence demonstrate, as a matter of law, that the “contract” was intended to extend for more than one unsuccessful bond election. First, the proposal is unambiguous. However, Caulfield relies on the language of the last paragraph and contends the City must retain it as financial advisor for at least two bond election attempts. Caulfield’s argument is patently absurd. After a second unsuccessful election, Caulfield would again rely on that language to support its claim that it be given “another shot.” This process could go on ad infinitum. The trial testimony of Norman Lewis, a municipal bond financial advisor and plaintiff’s witness, also destroys Caulfield’s argument. Mr. Lewis stated that, if the bond issues fail, "... hopefully you will continue to act as financial advisor to the City on the same project.” (emphasis added). There was no evidence to support a custom that such an advisor continue work after a failed bond election. Obviously, the City had the right to abandon the project altogether after the first election. The proposal’s language and the testimony at trial support the conclusion that the proposal was merely an offer. It was accepted only once by the City and, in accordance with its terms, nothing was due because the election failed. The trial court did not err in directing a verdict for respondent City at the close of appellant’s case.

Affirmed.

CLARK, J., concurs.

KENNEDY, P.J., dissents in separate dissenting opinion.

KENNEDY, Presiding Judge,

dissenting.

I dissent.

The plaintiff and its assignor Perry, Adams & Lewis Securities, Inc., in this case performed the duties required by their contract. There is no dispute that they performed valuable services to the defendant City, and incurred substantial out-of-pocket expense in doing so. There is no contention on the City’s part that they did not perform the services in competent fashion.

The bond proposal which was ultimately adopted by the City was exactly the same proposal as the one which had been defeated in the first election which had been prepared with the counsel and advice of plaintiff and its assignor. The second election was held within six months of the first, but the City’s plans for resubmission commenced promptly after its defeat in the first election. Prom beginning to end it was a single project.

With the preparatory work plaintiff and his assignor had done, it is not surprising that the City, after the first election, was able to get a second financial advisor for 40 percent less than it had contracted to pay plaintiff.

Of course it is common knowledge that bond proposals for public improvements often must be submitted more than once; expert testimony was not necessary to establish that, although such testimony was given. The contract reference to “elections”, in the plural, also recognizes that fact. I read nothing in this contract which requires the construction that the City was free after one election of all obligation under its contract.

The majority opinion correctly says that the City was not obliged by the contract to call the second election. If the City had not done so, the plaintiff would have had no claim under its contract. But the fact is, the second election was called. If as the majority opinion says, the contract in this case was in reality an offer to contract on plaintiffs part, requiring for its acceptance that the City call an election, I am unable to see that that analysis leads to a directed verdict for the defendant City. The fact is the City did call the second election, at which election the bond proposition was voted. In so doing, by the “offer to contract” analysis, the City accepted the plaintiffs offer.

In my opinion the judgment should be reversed and the case remanded for trial.

      . The dissent says that the second election was an acceptance. This ignores the obvious rejection of the offer by the City and the counter offer by the plaintiff, which, likewise, destroyed the continuing offer.


author: SHANGLER, Judge.

text:
    Vaughn MOORE, Appellant, v. CHRISTIAN FIDELITY LIFE INSURANCE COMPANY, Respondent.
    No. WD 35286.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.

      Wendell E. Koerner, St. Joseph, for appellant.
    Martin M. Bauman, St. Joseph, for respondent.
    Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.
   SHANGLER, Judge.

The plaintiff Moore, a resident of Iowa, sued the defendant Christian Fidelity Life Insurance Company, a Texas corporation for breach of contract. The jurisdiction over the person of the foreign insurance company was invoked under the provisions of § 375.906, RSMo 1978, and was accomplished by service of process on the Superintendent of Insurance of this state. The defendant insurance company moved to dismiss the action for want of jurisdiction over the person on grounds that the petition failed to allege that the foreign defendant committed a wrong within Missouri or that the obligation on which the cause of action rests was on a contract made within Missouri — as required by § 506.500, RSMo 1978. The court entered dismissal of the petition. That order, responsive to the motion, was on the premise that there lacked the minimum contacts between the foreign insurance company and our state to subject the nonresident defendant to the jurisdiction of the court for judgment.

The motion to quash for want of personal jurisdiction over the defendant casts the burden on the plaintiff to a prima facie proof that the court is empowered to render a judgment against the person of the defendant. Osage Homestead, Inc. v. Sutphin, 657 S.W.2d 346, 350[1] (Mo.App.1983). In the assessment of that proof, the allegations of the petition are given an intendment most favorable to the existence of the jurisdictional fact. State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 893[4, 5] (Mo. banc 1970). See also McCarter, Personal Jurisdiction Over Non-Resident Defendants, 40 Mo.B.J. 373, 374 (Sept.1984). To prove the jurisdictional factum, the proponent may resort to discovery or other evidence relevant to that purpose. State ex rel. Deere and Company v. Pinnell, supra, l.c. 894[6].

The adjudication of the motion to quash was without prior resort to the preliminary-procedure delineated by the Supreme Court en banc in Deere as an aid to prove a defendant amenable to jurisdiction and judgment. The order of dismissal, in effect, rests on the failure of the petition to state a claim of jurisdiction. The allegations of fact pleaded, however, were of a more ample proof than the rudiments — the nonresidence of the litigants and a non-Missouri contract — the court determined to deny jurisdiction. The allegations of fact taken most favorably to the issue, rather, establish:

the plaintiff Moore is a resident of Iowa the defendant is a life insurance company, resident in Texas,
the defendant was authorized to do business in Missouri, and conducted business in Missouri
the plaintiff Moore contracted with the defendant insurer to perform services as supervisor for the State of Missouri under the contract of employment with the defendant insurance company
the plaintiff Moore, in fulfillment of these duties, recruited, trained, motivated agents
the plaintiff Moore in the fulfillment of these duties, participated in the marketing and public relations activities of the insurer in Missouri
the plaintiff Moore, in fulfillment of these duties, developed a Medicare Supplement Policy and developed a premium base for the defendant in Missouri so as to increase the gross sales of health and accident policy premiums from $31,000 to $786,522, and to establish life insurance premiums of $107,603
the plaintiff Moore was owed a bonus of $29,043 for performance
the defendant insurance company still owes $9,043 of the bonus, $14,000 as base salary, and some other sums.

The motion to the jurisdiction, and the entry of judgment, rest on the premise that the petition fails to allege one of the grounds enumerated by § 506.500 for jurisdiction and judgment: more particularly, that the cause of action arose from a contract made within this state [§ 506.500 subd. 1(2)], or from the commission of a tortious act within this state [§ 506.500 subd. 1(3)].

The petition does not attempt to engage the jurisdiction of the court under single-act, long-arm §§ 506.500 and 506.510, however, but under foreign insurance company service statute § 375.906, RSMo Cum.Supp. 1984. That section provides:

1. No insurance company or association not organized under the laws of this state shall directly or indirectly issue policies, take risks, or transact business in this state, until it shall have first executed an irrevocable power of attorney in writing, appointing and authorizing the director of the division of insurance of this state to acknowledge or receive service of all lawful process, for and on behalf of the company, in any action against the company, instituted in any court of this state, or in any court of the United States in this state, and consenting that service upon the director, shall be deemed personal service upon the company.
2. Service of process shall be made by delivery of a copy of the petition and summons to the director of the division of insurance ... at the office of the director of the division of insurance at Jefferson City, Missouri, and service as aforesaid shall be valid and binding in all actions brought by residents of this state upon any policy issued or matured, or upon any liability accrued in this state, or on any policy issued in any other state in which the resident is named as beneficiary, and in all actions brought by nonresidents of this state upon any policy issued in this state in which the nonresident is named beneficiary or which has been assigned to the nonresident, and in all actions brought by nonresidents of this state on a cause of action, other than an action on a policy of insurance, which arises out of business transacted, acts done, or contracts made in this state, [emphasis added]

The service of process was accomplished by plaintiff Moore upon the defendant insurance company as § 375.906 [subsections 2 and 5] prescribes: by a delivery of the petition and summons to the director of the division of insurance, forwarded by that official to a designated personage on behalf of the defendant corporation. The sufficiency of that process is not an issue.

The requirements for process and the manner of service are altogether as constituted by statute, and where not met, a court lacks power to adjudicate. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407[3, 4] (1942); Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888, l.c. 890[1, 2] (Mo.App.1976); Rule 54.18. Thus, the appeal poses the inquiry whether the allegations of the petition of plaintiff Moore subjects the foreign defendant to the jurisdiction and in personam judgment of the court as a cause of action under § 375.906.

This is not to say that the procedure for the commencement of an action against a nonresident insurance corporation prescribed by § 375.906 excludes resort to any other method sanctioned by statute, or that § 375.906 preempts or opposes single-act § 506.500 as a means to perfect in person-am jurisdiction. Elliott v. Southwestern Life Insurance Company of Dallas, Texas, 615 S.W.2d 116, 117[1] (Mo.App.1981). That is to say: only a service of process conformed to the manner and form prescribed by law suffices to engage the jurisdiction of the court. In Interest of K.K.M., 647 S.W.2d 886, 889[4] (Mo.App.1983); Rule 54.18.

The plaintiff Moore accomplished service upon the foreign insurance company defendant in the manner § 375.906. Personal jurisdiction over the nonresident under that procedure is based upon the express consent of the foreign insurer — as a condition to the issuance of policies or transaction of business in Missouri — to authorize the director of the division of insurance to acknowledge and receive service of all lawful process against the company in any action commenced in a court of our state. The motion to quash service of summons brought by the foreign insurer does not assert that such a consent was an unfair exaction, and so violates due process. Nor does the motion contend that the jurisdiction of the court under that statute to render an in personam judgment against the foreign insurer fails for want of allegation of the petition. The motion does not mention § 375.906 at all, but misdirects the inquiry to a contention that the petition fails to allege ground for personal jurisdiction over a nonresident under the long-arm procedures of single act § 506.500 et seq. The order of quashal, responsive to the motion, implicitly adopts for judgment the ground that the petition does not allege that the contract upon which the claim rests was executed within this state so that “there [was] not sufficient contact with the State of Missouri to warrant this State having jurisdiction.” The briefs of the foreign insurer perpetuate that misdirection with arguments from due process premises and precedents which appertain to the long-arm procedures of statutes of the § 506.-500 genre — those which depend upon constitutional validity altogether on minimum contacts with the forum and a process of reasonable notice to the nonresident defendant. M & D Enterprises, Inc. v. Fournie, 600 S.W.2d 64 (Mo.App.1980); Sperandio v. Clymer, 581 S.W.2d 377 (Mo. banc 1979); and State ex rel. Deere and Co. v. Pinnell, 454 S.W.2d 889 (Mo. banc 1970), among the others.

The exercise of jurisdiction over the person of the nonresident under § 375.906, on the other hand, rests on the express consent of the insurer to submit to the judgment of the court, and amounts to an intentional waiver of the question of adjudicatory jurisdiction. Insurance Corpora tion of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315[1], 84 S.Ct. 411, 414[1], 11 L.Ed.2d 354 (1964). The explicit terms of § 375.906, moreover, are notice to the consensual nonresident insurer to expect that

in all actions brought by nonresidents of this state on a cause of action, other than an action on a policy of insurance, which arises out of business transacted, acts done, or contracts made in this state

it will be required to respond in the Missouri forum. There is no contention that the advertent form of consent required of a nonresident insurer as a condition for the transaction of business in this state violates the fairness principle of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) or the sequels which expound that decision. Nor can there be contention that the allegations of the petition [and terms of contract appended to the pleading] assumed as fact do not plead a cause of action which arises out of business transacted or acts done in Missouri.

The judgment rests, rather, on the lack of an event [a contract executed in Missouri] altogether irrelevant to the exercise of in personam jurisdiction over a nonresident under § 375.906, on which the petition proceeds. The judgment is erroneous simply because it quashes an exercise of personal jurisdiction never asserted under the scheme of a statute never invoked.

The order to quash the service of process is set aside and the cause is remanded for trial.

All concur.

      . The motion did not assert that the petition failed to state a cause of action, but only that the allegations were not sufficient to invoke the jurisdiction of the court over the person of the nonresident defendant insurer for want of minimum contacts due process requires. The proper procedure was a motion to quash service of process, not to dismiss. State ex rel. Caine v. Richardson, 600 S.W.2d 82 (Mo.App.1980). We treat the pleading and the order of the court as a motion and a judgment to quash service of process. State ex rel. Newport v. Wiesman, 627 S.W.2d 874, 875 (Mo. banc 1982).

      . The motion to quash was called up for "hearing and disposition" by a notice of the defendant. There is no intimation as to the nature of the “hearing" or what was presented. The order of dismissal predicates the judgment simply on findings that the litigants were both nonresidents and that the contract sued upon was executed outside of Missouri. The nonresidence of the plaintiff and defendant are facts disclosed on the face of the petition. That the contract was executed outside the state does not appear from the petition, but as an assertion of the motion to dismiss. The parties do not dispute that premise, and we assume the fact for the purpose of opinion.


author: MANFORD, Judge.

text:
    In re Marriage of James Oliver LAYTON and Norma Jean Layton. James Oliver LAYTON, Appellant, v. Norma Jean LAYTON, Respondent-Cross-Appellant.
    No. WD 35403.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.

      James D. Boggs, Platte City, for appellant.
    Franklin T. Thackery, St. Joseph, for respondent-eross-appellant.
    Before TURNAGE, C.J., MANFORD, J., and MESSINA, Special Judge.
   MANFORD, Judge.

This is an action in dissolution wherein both parties have appealed. The judgment is affirmed as modified.

Appellant, James Layton, (hereinafter referred to as husband) has presented two points, which in summary charge that the trial court erred in entering its judgment, because (1) the trial court failed to identify and divide all the marital property as it existed at the commencement of the action which would include monies expended by respondent pending a trial of this action, and (2) the trial court, in dividing the marital property, failed to adequately consider the contribution of appellant (husband) to the marital property, as well as the conduct of the parties and their economic circumstances.

Respondent-Cross-Appellant, Norma Jean Layton, (hereinafter referred to as wife) in her cross-appeal has presented three points, which in summary charge that the trial court erred in entering its judgment because (1) the sum awarded to her ($6,545.00) was insufficient and inconsistent with the trial court’s findings of fact and conclusions of law, (2) the trial court failed to grant her maintenance, and (3) the trial court failed to award a proper amount of attorney’s fees, said award being only $1,500.00 as against a total of $3,200.00 in attorney’s fees.

Review of this matter is made pursuant to Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) interpreting said rule. Said review is both upon the law and evidence with due regard given the trial court to adjudging the credibility of the witnesses. Nilges v. Nilges, 610 S.W.2d 58, 60 (Mo.App.1980).

The parties were married on December 10, 1979 in Miami, Oklahoma. They resided together until they separated on July 17, 1982 in Weston, Missouri. The husband has been and continues to be a railroad employee. The wife at the start of the marriage operated a store in Weston. Soon after they were married, the store was closed following an action in bankruptcy. Any additional facts deemed pertinent are considered within the disposition of the issues presented to this court, infra.

Under his point (1), the husband charges that the trial court erred in failing to consider, within the division of marital property, certain funds spent or allegedly squandered by the wife during the period of time from the filing of this action until a hearing of same.

What the trial court found, and such finding is supported by the evidence, is that when the parties separated, the wife took $2,000.00 from one of four bank accounts held by the parties, a jar which contained some $700.00 in coins, and a $10,-000.00 jointly held certificate of deposit. As of March 15, 1983, the court found that what remained of these assets was a balance of $4,204.87 from the certificate of deposit. The record reveals that the wife produced receipts accounting for all but $47.00 of the total monies she took with her, and these expenditures were for living expenses. In addition, the trial court found, and the same was supported by the evidence, that the husband had expended marital funds equal to and perhaps in a greater amount than the wife. The trial court concluded from the evidence that the sums expended by the wife were reasonable as living expenses and that the remaining balance ($4,204.87) of the certificate was subject to division as marital property. There was no evidence adduced to support the husband’s assertion that the wife squandered any of the monies expended. The evidence also revealed reasonable expenditures by the husband.

The husband cites to § 452.330.3, RSMo 1978 which states that all property acquired by either spouse subsequent to the marriage but prior to a decree of legal separation or dissolution is presumed to be marital property. The monies in question here are undoubtedly marital property, however, it was not error for the trial court to divide or account for the $2,000.00 checking account, the $700.00 in coins, or the entire $10,000.00 certificate of deposit, since those funds (except for the $4,204.87 balance on the certificate of deposit) had been depleted for living expenses. Hutchins v. Hutchins, 660 S.W.2d 403 (Mo.App. 1983). If there is substantial evidence that one spouse squandered marital properties, the trial court is authorized to order reimbursement. Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981). There is absolutely no evidence of squandering herein. There is no merit to husband’s point (1) and it is ruled against him.

Under his point (2), the husband charges that the trial court erred in the division of the marital property by failing to consider the contribution by the husband to the marital property, along with the conduct of the parties and the economic circumstances of the parties. There is no evidence upon this record to support the husband’s assertion and the appellate courts will not second-guess the trial court. Nilges at 60. The record herein does not reveal that the trial court abused its discretion. There is no merit to the husband’s point (2) and it is ruled against him.

The wife, on her cross-appeal, under her point (1), asserts that the trial court granted her an insufficient judgment in the amount of $6,545.00 as representing her one-half share in the increased equity of the residential property.

In its findings, the trial court stated that certain improvements were made to the residential property during the marriage which were paid for from marital funds. It was found that these improvements increased the value and hence the equity in the residential property by at least $21,-500.00. The trial court also found that the wife did a considerable amount of work in connection with the improvements on the residential property. In its conclusions of law, the trial court stated, “That considering all of the facts and circumstances of this case, each of the parties is entitled to substantially one-half in values of the marital properties, and Respondent is entitled to the one-half in value of the increased equity by reason of the improvements to the home from marital funds.”

This conclusion then provided that the division could be made by the award of certain marital properties, coupled with a judgment for a sum representing any net difference under the rule announced in Scott v. Scott, 645 S.W.2d 193 (Mo.App.1982).

An additional finding held that the wife was not guilty of any marital misconduct which would bar or diminish her proportionate share of the marital property or her marital interest in the increased equity of the residential property.

The husband was awarded the residential property as separate property. He was awarded the sum of $11,435.00 as his share of marital property. This $11,435.00 did not include any equity interest. It was determined by the trial court from the evidence that the enhanced value of the equity was $21,500.00.

The trial court awarded to the wife the sum of $6,329.87 in marital property. In addition, the trial court awarded the wife the sum of $6,545.00 as a judgment lien against the residential property as representing her one-half interest in the increased equity of the residential property.

It is obvious from reading this entire record, including the trial court’s findings and conclusions that the wife is entitled to at least one-half of the $21,500.00 established as the enhanced value of the equity. Thus, the sum of $6,545.00 previously awarded as the one-half interest in the enhanced value of the equity must be modified and increased to a sum total of $10,-750.00. The trial court’s judgment is thus modified to support the trial court’s findings and conclusions, both of which are supported by the evidence. Such a modification grants to the wife a total sum of $17,079.87 for her share of marital property-

It should be noted from the evidence that the trial court found a total of $39,264.87 in marital property. This sum included the $21,500.00 as enhanced value in the equity of the residential property.

By the modification supra, the husband receives $22,185.00 as his share of the marital property. The wife receives $17,-079.87. Although the amounts are not equal, they do reflect the disposition supported by the evidence and that declared applicable by the trial court. There is no requirement that the division be equal, but only that such division be fair and equitable under the circumstances. Nilges, supra.

Thus, the wife’s point (2) is sustained to her favor and that portion of the trial court’s judgment awarding her substantially a one-half interest in the enhanced equity is modified from the sum of $6,545.00 to $10,750.00, and said amount shall be a judgment lien upon the residential real property.

Under her point (2), the wife alleges that the trial court erred in not awarding her maintenance. The wife’s point (2) is found to be meritless and is thus ruled against her.

There is no substantial evidence which supports the wife’s assertion for maintenance. The award of maintenance is within the broad discretion of the trial court and a ruling thereon will not be disturbed absent a showing of an abuse of that discretion. In re Marriage of Pate, 591 S.W.2d 384, 391 (Mo.App.1979). There is no showing of any abuse of discretion herein.

Under her final point (3), the wife charges that the trial court erred in awarding her only $1,500.00 of a total claimed $3,200.00 in attorney’s fees.

The wife’s final point (3) is taken up and found to be meritless and thus ruled against her.

The award of attorney’s fees is a matter within the broad discretion of the trial court, and absent a showing of an abuse of that discretion, a ruling thereon will not be disturbed. Pate, supra. The award of attorney’s fees does not entitle a party to full costs and attorney’s fees, but only reasonable sums considering the financial situation of the parties. Stitt v. Stitt, 617 S.W.2d 645, 647 (Mo.App.1981). There is no showing of any abuse of discretion herein.

The judgment of the trial court is affirmed as modified.

All concur.


author: CLARK, Judge.

text:
    John H. TEALE, Appellant, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, A Foreign Corporation, Respondent.
    No. WD 35443.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Thomas J. Downey, Jefferson City, for appellant.
    Laurence R. Tucker, W. Robert King, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   CLARK, Judge.

This appeal is brought from the order of the trial court dismissing plaintiff’s first amended petition. The order sustained defendant’s motion for dismissal which asserted that the petition failed to state a claim on which relief could be granted, that plaintiff was not the real party in interest and was without legal capacity to sue and that the court lacked jurisdiction over the subject matter. The order did not state which of the several causes were relied on as grounds for dismissal.

The pleaded facts of the case are as follows. One Whelchel, an employee of a supermarket, sustained a work related injury and sought medical treatment from appellant, a chiropractor. Appellant treated Whelchel from October 8 to October 27, 1982. Respondent is the worker’s compensation insurance carrier for the market and, on the last mentioned date, it gave notice to appellant that any further services by appellant to Whelchel would be at Whelchel’s expense because it had selected another physician. At about the same time, respondent furnished Whelchel a list of five doctors from which Whelchel could select a physician to provide continued medical care at respondent’s expense. The list included no chiropractors. Because respondent declined further payment for appellant’s services, Whelchel discontinued her treatments from appellant. The petition asserted that respondent’s conduct amounted to actionable, tortious interference with the contractual and business relationship between doctor and patient resulting in actual damage amounting to $564.00. The claim for punitive damages was also asserted.

On familiar and established authority, we consider appellant’s pleading allegations in the light most favorable to the cause of action asserted and give appellant the benefit of intendments, recognizing, however, that facts essential to statement of the claim must be alleged. In this case, the task of analysis is simplified because the facts are relatively uncomplicated. The employee, Whelchel, was receiving health care treatment from appellant for a job related injury. The services of appellant and the course of treatment had been authorized by the employer and the expense was borne by the employer as a worker’s compensation benefit. When respondent insurance company notified Whelchel and the employer that it would no longer sustain the expense of appellant’s fees for treatment, the services of appellant were terminated. The pleaded facts warrant the inferences, first that the course of appellant’s treatment to Whelchel had not been concluded and, second that Whelchel’s medical care was placed with another physician because Whelchel and her employer were unwilling to assume the burden of paying appellant’s fees outside respondent’s insurance benefits.

Some guiding propositions applicable to this case must first be noted. The cause of action for tort is recognized where the acts of a third party cause the interruption of an existing contract or business relationship. The elements of the cause of action are (1) a contract or a business relationship (2) knowledge by the third party of that contract or business relation (3) intentional conduct by the third party inducing or causing the breach of the contract or interruption of the business relation (4) absence of justification for the conduct of the third party, and (5) resulting damages. Francisco v. Kansas City Star Co., 629 S.W.2d 524 (Mo.App.1981). The business relationship which is contended to have been disrupted by the acts of the defendant need not necessarily be evidenced by a contract but may consist of reasonable expectancies of commercial relations. Casterline v. Stuerman, 588 S.W.2d 86 (Mo.App.1979).

Respondent here contends that the first element of the tort is lacking in appellant’s pleading because it is not alleged that a contract for continuing care existed between Whelchel and appellant. Such was not a necessary component of the action. Whelchel had been attended for her injury by appellant for a period of more than two weeks, the course of treatments and the expectancy for its continuation were interrupted by respondent’s notice, the effect of which was to require Whel-chel to seek the services of another doctor, and, in consequence, appellant lost the expectancy of benefits from the future relationship with Whelchel as a patient. It is immaterial that Whelchel was not bound to a predetermined course of treatment with appellant. As pleaded, Whelchel would have continued her treatments provided by appellant, but for respondent’s notice withdrawing financial support. The allegation asserts a sufficient business relation and expectancy to satisfy the first element of a cause of action for interference with the business arrangement between appellant and Whelchel.

Respondent also contends that appellant is not the real party in interest and is not entitled to maintain the action because the statutes providing medical expense benefits to injured workers give a cause of action for denial of benefits to the employee, not the health care provider. The gist of the argument seems to be that if respondent was under an obligation to pay appellant’s charges, that claim could be asserted only in a proceeding brought by Whelchel for compensation benefits under the statute. The contention misses the point of appellant’s claim.

It is assumed, nothing appearing herein to the contrary, that Whelchel acquiesced in respondent’s direction to seek another physician and was not herself dissatisfied with the subsequent medical treatment provided at respondent’s expense. There is no indication that any worker’s compensation claim for any benefits pends. Appellant did plead a section of the compensation act as applicable to the case, but only for the purpose of contending that respondent’s interference was unjustified as a matter of law. This bears on the fourth element of the tort action.

Section 287.140.1, RSMo 1978 of the compensation act provides that in addition to all other compensation, the employee is entitled to receive reasonable medical treatment at the expense of the employer who may select the treating physician. Prior to an amendment of the statute in 1980, the right to select the physician providing treatment to the employee was equally shared by the employer and his insurer. Section 287.030.2, RSMo 1978 states, with regard to provisions of the compensation act in general, “any reference to the employer shall also include his insurer.” Thus, where the act gave the employer the right to select the health care provider, that right also extended to the insurer.

In 1980, however, § 287.140.9 was amended to exclude the insurer from the right of treatment selection by express language: “For purposes of this subsection (selection of the licensed treating physician) subsection 2 of section 287.030 shall not apply.” There can be no doubt that the sole purpose of the change in the statute was to deny insurers any voice in directing workers to particular doctors or classes of doctors for treatment of job-related injuries.

The applicability of the compensation law to this case and the basis for inclusion in appellant’s petition is that it supports the allegation that respondent’s interference with the doctor-patient relation was without justification. The fact that Whelchel may have or may have had an enforceable right under the same statute to preclude respondent from imposing its choice of physicians upon her is no ground to contend the cause of action was exclusively vested in Whelchel. The tort action was available to appellant as a party injured by the unjustified intermedling of respondent with the treatment of Whelchel authorized originally by the employer and apparently provided to the satisfaction of Whelchel.

The other elements of the tort action appear to be adequately set out in appellant’s petition and are not expressly chai-lenged by respondent. Obviously, respondent was aware of the treatment program undertaken by appellant for Whelchel and acted intentionally to withdraw funds with the purpose of inducing Whelchel to seek treatment elsewhere. The extent of appellant’s damages is, of course, a matter of subsequent proof.

Respondent also appears to contend that this case is not actually an action for damages sustained by appellant but is a vehicle whereby the purported discrimination by insurance companies against doctors of chiropractic medicine may be asserted. This argument is fielded to buttress the contention that appellant is not the real party in interest and that the only action in which such a claim could be asserted would be one brought by the injured employee.

Nothing in appellant’s petition allegations leads to a conclusion that appellant asserts a claim on behalf of any group of medical practitioners nor does appellant seek any generalized relief beyond his claim for compensatory and exemplary damages. The fact that appellant is a chiropractor has no bearing at all on the question of whether respondent is liable for tortious interference with contract, except that appellant’s profession is an ingredient of proof of the business relationship between appellant and Whelchel, that of doctor and patient. The subject matter of the case appears otherwise to be within the jurisdiction of the Circuit Court in Clay County, the site of appellant’s office and the location of Whelchel’s employer at the time the latter first engaged appellant’s services. There is no merit to the claim, on the facts appearing so far in this record, that the trial court lacked subject matter jurisdiction.

The order dismissing appellant’s petition is reversed and the cause is remanded with direction to reinstate appellant’s petition and to grant respondent time in which to file its answer.

All concur.

      . Appellant does not describe how the damages were computed. Presumably, under the theory espoused, the amount consisted of fees appellant would have collected if his course of treatment had continued.


author: PER CURIAM.

text:
    Francisco A. PICON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35625.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Michael Radosevich, Columbia, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   ORDER

PER CURIAM.

Appeal from denial after evidentiary hearing of a Rule 27.26 motion to vacate conviction. Appellant pleaded guilty to two counts of sodomy, Section 566.060 RSMo (1978), and was sentenced to seven years on each count, to be served concurrently.

Judgment affirmed. Rule 84.16(b).


author: TURNAGE, Chief Judge.

text:
    ROY A. SCHEPERLE CONSTRUCTION CO., A Missouri Corporation, Plaintiff-Appellant, v. SEIFERTS, INC., an Iowa Corporation, and Fashion-Par, Inc., An Iowa Corporation, Defendants-Respondents.
    No. WD 35718.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Robert L. Hyder, Hyder & Prenger, P.C., Jefferson City, for plaintiff-appellant.
    Duane E. Schreimann, Hendren & An-drae, Jefferson City, for defendants-respondents.
    Before TURNAGE, C.J., MANFORD, J., and MESSINA, Special Judge.
   TURNAGE, Chief Judge.

Scheperle Construction Company sought recovery in quantum meruit for construction work. Scheperle was a subcontractor under Fashion-Par for construction work performed for Seiferts. The court entered judgment in favor of Seiferts on Schep-erle’s claim. Because Fashion-Par defaulted, the court entered judgment against it in favor of Scheperle.

On this appeal, Scheperle contends that it was entitled to recover on its quantum meruit theory; that the court erred in taxing all costs against it; and that it was entitled to recover as a third party beneficiary. Affirmed.

Seiferts contracted with Fashion-Par for construction work on a store in a shopping center. Fashion-Par contracted with Scheperle for the performance of part of the work. Because Fashion-Par became insolvent, it never paid Scheperle $21,000 still due on its portion of the work. Schep-erle filed suit against Seiferts and Fashion-Par to foreclose its mechanic’s lien, or in the alternative, to recover on a quantum meruit theory. Prior to trial, Scheperle dismissed its mechanic’s lien claim and proceeded to trial only on the quantum meruit theory. The parties do not dispute that Seiferts paid Fashion-Par the full amount of the contract price for all of the work performed under Fashion-Par’s contract.

The court found in favor of Seiferts on Scheperle’s claim but awarded Scheperle a default judgment against Fashion-Par for the $21,000 claimed. The court assessed all costs against Scheperle.

Scheperle first contends that the evidence showed that Seiferts was unjustly enriched by Scheperle’s work in the amount of $21,000, and that Seiferts’ payment to Fashion-Par was not a defense to Scheperle’s quantum meruit claim. That contention has recently been squarely answered in Green Quarries, Inc. v. Raasch, 676 S.W.2d 261, 266-67[15, 16] (Mo.App.1984), where this court stated:

We agree with those courts that have held that quasi-contractual recovery should not be available where the homeowner has already paid the general contractor. In such a case, no basis appears for a quasi-contractual recovery because the owner has not been unjustly enriched.

In this case, Seiferts paid Fashion-Par, so Seiferts was not unjustly enriched. Under Green Quarries, Scheperle was not entitled to recover against Seiferts on a quantum meruit theory.

Scheperle next contends the court should not have assessed all costs against it because the court did award Scheperle judgment against Fashion-Par. Under § 514.060, RSMo 1978, the party prevailing shall recover costs. Here, Scheperle prevailed against Fashion-Par by default, but lost on its claim against Seiferts. The court should apportion the costs between Scheperle and Fashion-Par.

Scheperle finally contends that it was entitled to judgment against Seiferts under the theory that it was a third party beneficiary of a lease provision between Seiferts and the owner of the shopping center where the Seiferts’ store was located. The lease required Seiferts to furnish lien waivers to the landlord from all subcontractors. Scheperle contends that Sei-ferts failed to supply the owner with a lien waiver, and that because it is a third party beneficiary of such a provision, it is entitled to recover against Seiferts on that theory. Scheperle raised this contention for the first time on appeal. Scheperle neither pleaded nor proved that theory and so must be held to the theory adopted and tried in the trial court. Byrd v. Brown, 641 S.W.2d 163, 173[8, 9] (Mo.App.1982). For that reason, a possible recovery on that theory cannot be considered.

The judgment is affirmed, except that the court shall apportion the costs between Scheperle and Fashion-Par. Costs on this appeal are assessed against Scheperle.

All concur.


text:
    STATE of Missouri, Respondent, v. Todd W. BURFIEND, Appellant.
    No. WD 35847.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    John Ashcroft, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for appellant.
    C.J. Larkin, Columbia, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER and MANFORD, JJ.
   ORDER

PER CURIAM.

Appeal from conviction for burglary in the second degree, Section 569.170, RSMo 1978, and sentence of six years imprisonment.

Judgment affirmed. Rule 30.25(b).


text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent, v. K.J.W. DEVELOPMENT COMPANY, Appellant.
    No. WD 35502.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.
    Rehearing Denied March 5, 1985.
    Daniel William Olsen, Kansas City, for appellant.
    Leonard J. Johnson, Kansas City, for respondent.
    Before TURNAGE, C.J., and MANFORD and BERREY, JJ.
   MANFORD, Judge.

This is a civil action concerning the registration of a foreign judgment. The judgment is affirmed.

Two points are presented, which in summary charge that the trial court erred when it entered its judgment authorizing the registration of a foreign judgment, because (1) respondent was not the proper party to register the judgment, and in declaring that respondent was the proper party, the trial court herein amended the foreign judgment, and (2) the foreign judgment was rendered in favor of another party and not respondent.

Before setting forth in summary the pertinent facts, it is noted that the charged errors herein are in reality only two variations of a single alleged error. They are taken up, discussed and disposed of con-junctively.

The record reveals the following facts.

On August 8, 1980, the Mission State Bank & Trust Company was closed by the Kansas State Bank Commission. Respondent (hereinafter F.D.I.C.) was appointed receiver pursuant to an order of the District Court of Johnson County, Kansas. On the same day (8-8-80), the Kansas District Court, by order, approved the sale of assets and the transfer of liabilities of the Mission Bank to the F.D.I.C., which authorized the F.D.I.C. as receiver to sell assets and liabilities to an assuming bank and also to sell any remaining assets to the F.D.I.C. in the F.D.I.C.’s corporate capacity. That same court order further ruled that the F.D.I.C., as receiver and in its corporate capacity, was authorized to execute all documents and perform all acts necessary, proper, and convenient to carry out the terms and provisions and to otherwise implement the intent and purpose of the purchase and assumption agreement and the contract for sale and indemnity agreement.

As receiver, the F.D.I.C. entered into a purchase/assumption agreement with an assuming bank which effected disposal of part of the Mission Bank assets. The remaining assets were sold by the F.D.I.C., as receiver, to the F.D.I.C. in its corporate capacity. One of the assets sold to the F.D.I.C., in its corporate capacity, was a December 21, 1979 commercial loan owed by appellant (hereinafter K.J.W.). The initial loan was for $257,000.00. The principal sum due on August 8, 1980 was $83,468.93. There is no dispute between the parties as to the amount of the balance or that the debt is owed.

On November 26, 1980, the Mid-American Bank and Trust Company filed an action in the Circuit Court of Whitley County, Kentucky, naming among others as defendants, the Mission State Bank and K.J.W. Mission State Bank appeared by and through its liquidator, William S. Bryant of the F.D.I.C. By and through Bryant, an answer and cross-claim against K.J.W. was filed. By way of the cross-claim, recovery of the balance on the K.J.W. loan was sought. On the basis of admissions and within the answer of K.J.W. to the cross-claim, the Mission State Bank, through Bryant on August 15, 1981, filed a motion for judgment on the pleadings.

The Kentucky court, on October 8, 1981, entered judgment in favor of the Mission State Bank, “by and through William S. Bryant, liquidator, F.D.I.C.” and against K.J.W. On November 18, 1981, K.J.W. moved the Kentucky court to dismiss the cross-claim on the basis that the Mission State Bank had previously ceased to exist and that the F.D.I.C. was the real party in interest. A subsequent motion to vacate the Kentucky judgment alleged the same grounds. Both motions were overruled by the Kentucky court. The Kentucky judgment was then assigned to the F.D.I.C. in its corporate capacity on June 14, 1983. This assignment was filed with the Clerk of the Circuit Court of Whitley County, Kentucky and a copy of the assignment and filing were served on K.J.W.

On October 20, 1982, the F.D.I.C. filed its petition for Registration of a Foreign Judgment in the 16th Judicial Circuit of Missouri. K.J.W. filed a special appearance and answer with an attached memorandum in opposition to the petition for registration. In this proceeding, K.J.W. argued that the F.D.I.C. was not the real party in interest and therefore was not entitled to register the Kentucky judgment in its own name. On August 18, 1983, the 16th Judicial Circuit Court overruled the motions of K.J.W. to set aside the registration of the foreign judgment. On September 1, 1983, K.J.W. filed a motion for a new trial or alternatively, to open the judgment, make findings of fact, and to direct entry of a new judgment. K.J.W. again argued that the F.D. I.C., not being the real party in interest, was therefore not entitled to register the foreign judgment. On November 9, 1983, the 16th Judicial Circuit overruled the second motion of K.J.W. On November 23, 1983, the 16th Judicial Circuit Court entered its final judgment, which included the determination that the F.D.I.C. was the party entitled to register the foreign judgment and to collect the judgment against K.J.W. This appeal followed.

On this appeal, K.J.W. asserts that because the F.D.I.C. was not proper party to register the foreign judgment, the trial court erred in declaring the F.D.I.C. to be the proper party, and with that declaration, the trial court amended the Kentucky judgment. It also alleges that the trial court further erred in finding that the Kentucky judgment was rendered in favor of Mission State Bank by and through William S. Bryant, liquidator for the F.D.I.C., because the Kentucky judgment did not grant that judgment to the F.D.I.C. but instead granted judgment to Mission State Bank.

In support of its initial assertion, K.J.W. cites to this court authority from our sister state of Illinois. This court is not bound to acknowledge or follow that authority in light of existing Missouri case authority and a Supreme Court rule which is disposi-tive of the issue. The Missouri Supreme Court rule, Rule 74.79(b) reads as follows:

Rule 74.79. Uniform Enforcement of Foreign Judgment Law
(b) Registering Foreign Judgment. On application made within the time allowed for bringing an action on a foreign judgment in this state, any person entitled to bring such action may have a foreign judgment registered in any court of this state having jurisdiction in such action.

Particular attention is directed to the above portion of Rule 74.79(b), which reads, “any person entitled to bring such action may have a foreign judgment registered in any court of this state having jurisdiction in such action.”

It is not disputed herein that the 16th Judicial Circuit Court was a court with proper jurisdiction. In addition, K.J.W.’s assertion fails as regards its contention that the F.D.I.C. was not a proper party to seek registration of the Kentucky judgment, because the Kentucky judgment was subsequent to its entry assigned by the F.D.I.C., in its receiver capacity, to the F.D.I.C., in its corporate capacity. This assignment was filed of record in the Kentucky court and notice thereof was duly served upon K.J.W. Missouri Supreme Court Rules 74.65 and 74.68 reads as follows:

Rule 74.65. Assignment of Judgments Judgments of courts of record (including magistrate courts) for the recovery of money may be assigned in writing by the plaintiff and by the assignees thereof, successively, which assignments shall be on, or attached to the judgments, and attested by the judge or clerk of the court, or magistrate, and when so made and attested, shall vest the title of such judgments in each assignee thereof, successively.
74.68. Assignee of Judgment — Rights of
Any action or other proceeding, which the plaintiff in any judgment might have thereon, may be maintained in the name of the assignee.

The foregoing rules clearly authorize the assignment of judgments in Missouri, and subsequent actions may be maintained in the name of the assignee. In the course of the proceedings herein, the Missouri F.D.I.C. had admitted a certified copy of the judgment assignment. This exhibit establishes that the state of Kentucky also recognizes the assignment of judgments. Research has disclosed no contrary ruling by the Kentucky courts, and this court is authorized to presume that the law of Kentucky on the subject is the same as Missouri Law. Aman Collection Service, Inc. v. Burgess, 612 S.W.2d 405, 408 (Mo.App.1981). The above exhibit was a clear assignment of the Kentucky judgment made by the F.D.I.C., as receiver, to the F.D.I.C., in its corporate capacity, under date of June 14,1983, and said assignment is clearly not contrary to Missouri law or Kentucky law.

It must be further noted that by definition, a foreign judgment is one entitled to full faith and credit in Missouri. Metropolitan Lumber Co. v. Dodge, 567 S.W.2d 729, 731 (Mo.App.1978). Full faith and credit must be given unless there was (1) a lack of jurisdiction over the subject matter, (2) there was a failure to give due notice and/or (3) there was fraud in the procurement of the judgment. Metropolitan at 731 further declares, “In view of the tightly circumscribed grounds legally recognized as justification for refusing to give full faith and credit to the judgment of a sister state, it is forbidden in actions brought thereon in this state to inquire into the merits of the cause of action upon which the judgment is predicated, the logic or consistency of the decision underlying the judgment, and the validity of the legal principles upon which the judgment is based.”

K.J.W. does not contend that the judgment herein was procured within any of the three categories outlined above, nor does this record even suggest that the judgment was procured within any of those categories. The conclusion must be and is drawn that K.J.W. has failed to show this court why the Kentucky judgment is not entitled to full faith and credit. This court is not permitted to inquire beyond subject matter jurisdiction, failure to give notice, and/or fraud in the procurement, and there is absolutely no showing that this judgment falls within any of the above three categories. There is absolutely no merit to the first contention by K.J.W.

K.J.W. further asserts error by the trial court in that the court’s finding that the final Kentucky judgment was rendered in favor of the Mission State Bank, by and through William S. Bryant liquidator for F.D.I.C., because the Kentucky judgment does not grant judgment to the F.D.I.C. but instead grants that judgment to Mission State Bank.

K.J.W. fails to define for this court how the foregoing makes any real difference toward disposition of this matter. It is of no significance anyway in light of the subsequent assignment of the Kentucky judgment discussed above. The Kentucky judgment was, of record in Kentucky, assigned to the F.D.I.C. in its corporate capacity. Rule 74.79 clearly notes that in order to register a foreign judgment, the party seeking to do so did not or does not have to have been a party to the original action. There is no merit to this final assertion of K.J.W.

In conclusion, it is found that the trial court herein did not err in declaring that the F.D.I.C. was a proper party to seek registration of the foreign judgment, in finding that the Kentucky judgment was granted to the Mission State Bank by and through William S. Bryant as liquidator for F.D.I.C., or in holding that the foreign (Kentucky) judgment was and should be registered.

The judgment is in all respects affirmed.

All concur.