source: Caselaw Access Project

author: KELLY, Presiding Judge.

license: Public Domain

text:
    Patricia C. BULLER and Roberto Roldan, Plaintiffs-Appellants, v. The PULITZER PUBLISHING CO. and Florence Shinkle, Respondents-Defendants.
    No. 47271.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Joseph A. Fenlon, Clayton, for plaintiffs-appellants.
    Robert B. Hoemeke, St. Louis, for respondents-defendants.
   KELLY, Presiding Judge.

Patricia C. Buller and Roberto Rol-dan, plaintiffs, appeal from an order of the Circuit Court of the City of St. Louis sustaining defendants’ motion to dismiss their petition on the grounds it failed to state a claim against the defendants. Plaintiffs appealed. Hasemeier v. Smith, 361 S.W.2d 697, 699 [1] (Mo. banc 1962). Hill v. General Motors Corporation, 637 S.W.2d 382, 384[1] (Mo.App.1982). On appeal, in determining whether plaintiffs have stated a cause of action we assume every pleaded fact as true and take every favorable inference which may be reasonably drawn from the facts pleaded. Hill, supra, at p. 384; Rook v. Public School Retirement System, etc., 593 S.W.2d 905, 906[2] (Mo.App.1980).

Plaintiffs’ joint petition contained five counts. The first three Counts were concerned with plaintiff Buller’s claim for (1) libel, (2) intentional interference with business expectancies, and (3) invasion of privacy. Plaintiff Roldan’s Counts were for (4) libel and (5) invasion of privacy. Their claims against the Pulitzer Publishing Company and one of its reporters, Florence Shinkle, have its genesis in a newspaper article which appeared in the Everyday section of the Sunday, December 26, 1982, issue of the St. Louis Post-Dispatch, and entitled “The Future Lies Ahead.” The article dealt with psychics and their practices in foretelling future events. Plaintiffs were two of five psychics discussed at length and identified by name in the article.

Plaintiff Buller’s psychic practice was described in detail in defendant’s article and she claims she was ridiculed in a cartoon which accompanied the article and that she was inferentially described as being a tax-evader.

Plaintiff Roldan was described in the article as a “voodoo practitioner” and a prac-ticer of “voodoo magic.”

COUNT I and IV

Plaintiff Buller’s first Count identifies the defendants and the news article and attaches a copy of same to the petition as “Exhibit A”; alleges that the article was written expressly for the purpose of bringing her and other psychics into ridicule by containing defamatory statements, innuendos and misrepresentations known to the defendants to be false; that she is, and for years had been, engaged in the business of giving psychic readings for fees and that she is known primarily by her reputation and referrals; that the drawing which accompanied the article was intentionally and falsely designed to discredit her in her profession and to pass her off to the public as eccentric and a tax evader. She set out the words used which she claimed charged her by innuendo with being a tax evader — “The price for a consultation is $20.00 in cash” and in discussing the psychic business stated, “How successful, it’s hard to calculate since many payments are still in cash, unrecorded, unknowable forever to the IRS.” — . She further alleged that she was falsely represented as a trickster and a fraud by referring to the cartoon which she claims presented her as giving readings while seated in bed wearing a ridiculous costume with charts in her lap, who conducted her business as if it were an assembly line, and whose sole purpose was the acquisition of money with little or no concern for her clients, together with the use of the term “hokey,” “bizarre costumes,” and “crystal ball”. As a direct result of all of the above she claims that she has been damaged in her character, reputation and business, discredited in the community, falsely accused of being a charlatan and tax evader; that these statements and the pictured representations were made by the defendants knowing them to be false and in reckless disregard of the truth and for the purpose of discrediting her. She prayed for compensatory damages of $2,000,000 and punitive damages of $4,000,000.

Plaintiff Roldan’s Count IV adopted by reference the paragraph of plaintiff Bul-ler’s petition identifying the defendants and the news article; alleged that the article describes him as a “voodoo practitioner” and a practicer of “voodoo magic,” that these descriptions are false, were known to be false, and were published by defendants in reckless disregard of the truth. He prayed $1,000,000 actual damages.

Published words in written communications which are defamatory without the aid of extrinsic facts are libelous per se and as such are actionable. Langworthy v. Pulitzer Publishing Company, 368 S.W.2d 385, 388[1] (Mo.1963).

Under Missouri law, certain types of written statements constitute libel per se. One such type of libel per se is a publication which tends to injure a person in his business or profession. A long line of Missouri cases has clearly established that this kind of written statement is actionable, provided it meets certain standards. Jacobs v. Transcontinental & Western Air, Inc., 216 S.W.2d 523, 525 (Mo.1948); Coonis v. Rogers, 429 S.W.2d 709, 714[8] (Mo.1968); Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 496[7] (Mo.App.1980).

The established rule is that where the plaintiff contends the language affected his business, the words must directly tend to injure or prejudice his profession, trade, business, or employment by imputing want of knowledge, skill, capacity, or fitness to perform or discharge the duties thereof. Heitzeberg v. Von Hoffmann Press, 100 S.W.2d 307, 309[3] (Mo.1937); Greening v. Klamen, 652 S.W.2d 730, 735[15] (Mo.App.1983). The language must also be defamatory of the plaintiff in the line of his trade or calling in that it imputes fraud, want of integrity or misconduct. Brown v. Kitterman, 443 S.W.2d 146, 154[10] (Mo.1969); Greening, supra, at 735.

In determining whether words alleged to be libelous per se are in fact defamatory, they must be read in connection with the whole publication rather than in isolation, and it is permissible to attach the whole publication to the petition as an exhibit. Missouri Church of Scientology v. Adams, 543 S.W.2d 776, 777[3] (Mo. banc 1976). Whether allegedly libelous words or statements are libelous per se is a question of law which the court may decide on a motion to dismiss. Missouri Church of Scientology, supra, at p. 777.

In light of these principles we evaluate Buller’s claim of libel.

We observe that Buller alleges in Count I of her petition that she is engaged in the profession of providing psychic readings and that defendants’ publication of the news article directly discredited her in her profession. The question is then whether, as a matter of law, the drawing and news article referred to in plaintiff’s petition, imputes a want of knowledge, skill, capacity, or fitness to perform or discharge her duties thereof and imputes fraud, want of integrity or misconduct, and thus constitutes libel per se.

Buller alleges that the article falsely presented her as a tax evader by stating that her consultation fee is paid in cash and by noting that within the profession many payments are made in cash and unrecorded with the IRS. To obtain a feeling of the context we read the publication as a whole. In the context in which they appear in the article, the two phrases are, first, not defamatory, and second, even if defamatory, do not necessarily impute fraud, want of integrity or misconduct in Buller’s business. They do not present plaintiff as a tax evader. The phrase stating the nature of payment in the business is not made in reference to Buller. The phrase mentioning the form of payment required for Bui-ler’s services does nothing more than note this fact; it does not imply that Buller fails to report her earnings.

The article notes that Buller is a popular psychic. Merely stating her fees and the method of payment for her services is consistent with a statement of her popularity. A writing claimed to be libelous must be given its ordinary meaning in the plain and popular sense. “Words claimed to be libelous will be construed fairly by their natural import, according to the ideas they were calculated and intended to convey to those to whom they were ad-dressed_” Dienerf v. Star-Chronicle Publishing Co., 230 Mo. 613, 132 S.W. 1143, 1148 (1911). We conclude that no defamatory meaning leaps out of these two phrases, seemingly pulled at random from the context of the article. The average reader would most likely note Buller’s fees in reference to her popularity. However, even were these phrases defamatory, they would not impute fraud, want of integrity nor misconduct. Buller could conceivably be a competent and trustworthy psychic and also be an income tax evader; her income tax reporting practices have no bearing on her ability to be a qualified psychic. As this court has recognized in earlier cases, this is an important distinction. Alleged wrongdoing may be published, but may not be of a nature to affect Buller’s ability to render psychic services competently. Jacobs, supra at p. 526; Baldwin v. Walser, 41 Mo.App. 243, 245[1] (1890).

This does not mean, however, that Buller’s petition fails to state a claim in libel. On the contrary, we find that the drawing and article meet the criteria for libel per se in a business or profession.

Defendants claim that the drawing does not purport to specifically identify Buller. This argument carries no water. Without addressing the libelous content of the drawing we find that it clearly identifies Buller. The phrase spoken by the “client” depicted in the drawing is a summary of Buller’s reading by the author. The “psychic” portrayed in the drawing is obviously in her bedroom as Buller was described in the article, and the “psychic” asks for the same fee in the article. In addition, Buller is the only psychic quoted in the article as charging a specific fee.

The question for decision is whether the article’s drawing depicts Buller in a defamatory manner in relation to her profession. The drawing, based on information elicited in the article, portrays Buller as a bizarrely dressed figure, seated in bed, and surrounded by an incomprehensible array of charts and diagrams. This, in and of itself, casts some doubt on the skill or capacity of Buller as a psychic. The confused, even dismayed expression on the “client’s” face does little to dispel that image. The “reading” just given the “client” is obviously meaningless and the “psychic” does nothing to remedy this. Clearly the drawing imputes that Buller has no skill or capacity as a psychic.

There is a second prong of this type of libel per se we now consider. That is the imputation of fraud, want of integrity or misconduct. Not only does the drawing depict Buller as an incompetent, it goes on to depict her as having a callous and unfeeling attitude toward her clients. Faced with the client’s bewilderment the psychic portrayed in the drawing asks for her money and proceeds to summon the next client. According to the drawing, Buller has no integrity at all with respect to her clients, and may even be defrauding them by accepting money for useless predictions.

In our opinion, defendants’ drawing cunningly depicted a drawing based on the information elicited in the article focusing uniquely on Buller’s business and her lack of skill and integrity. There is in our minds no question that the article and drawing are actionable as libel per se.

The only remaining issue is whether this libelous publication is protected as a statement of opinion under the First Amendment to the United States Constitution and Article I, Section 8 of the Constitution of Missouri. Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Under the controlling constitutional standards, public officials, public figures and private persons suing media defendants must establish that the defendant published a false statement of fact. Gertz, supra, at p. 347, 94 S.Ct. at p. 3010; Anton, supra, at p. 498. We said in Anton, supra, at p. 498 and in Iverson v. Crow, 639 S.W.2d 118, 119[2] (Mo.App.1982) that if a defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of false and defamatory facts, he is subject to liability for the factual statement but not for the expression of the opinion. It is on this basis that we hold that Buller successfully alleges defendants’ liability for libel per se in the publication of the article and drawing. Defendants published false facts about Buller in that the drawing is a drawing of her and, as such depicts her in a false manner. In other words, Buller alleges in her petition, that she does not dress or behave in the manner depicted in the drawing. It is one thing for a defendant to set out facts and also set out its opinion, whether or not that opinion is false, and still permit the reader to form his or her opinion. However, in this case, the facts set out visually in the drawing go beyond the protection afforded opinion.

We hold therefore that the trial court erred in sustaining defendants’ motion to dismiss Count I of Buller’s petition for failure to state a claim.

We move now to consider Roldan’s claim of libel, wherein he alleges that he has been damaged in his character and reputation by defendants’ description of him as a “voodoo practitioner” and a “practicer of voodoo magic.” Roldan, in his petition, fails to make any reference to his business or trade. The question then is whether these specific phrases defame him as an individual rather than in his business capacity.

In order to be libelous per se in these circumstances, the defamatory words must reflect on Roldan’s integrity, his character and his good name and standing in the community. Coots v. Payton, 280 S.W.2d 47, 54[14] (Mo.1955).

On their face, we do not find that the words “voodoo practitioner” and “prac-ticer of voodoo magic” are defamatory. These words are ambiguous in that while they might create connotations of evil and wrongdoing, they might also create a connotation of mysterious power and special ability.

A petition based on published words not defamatory per se may, however, state a cause of action for what is libel per quod. However, to do so, the petition must allege intrinsic facts showing that although the words published are not libel per se, they were in fact defamatory; and it is the settled rule in this state that in such a situation special damages must be pleaded in order for the petition to state a cause of action. Langworthy, supra, at p. 388. As Roldan’s petition fails to state extrinsic facts and plead special damages, we hold that the trial court did not err in sustaining defendants’ motions to dismiss Count IV of his petition for failure to state a claim.

COUNT II

Count II of Buller’s petition is claimed to be a Count for intentional interference with business expectancies, a tort recognized under Missouri law. Downey et al. v. United Weather Proofing, Inc., 253 S.W.2d 976 (Mo.1953). To establish a claim for intentional interference with business expectations a plaintiff must establish the following five elements:

1) a contract or valid business relationship or expectancy;
2) knowledge by the defendant of the contract or relationship;
3) intentional interference by the defendant which induces the breach of contract or relationship;
4) the absence of justification; and
5) resulting damages.

In Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo. banc 1976) the court said that a petition which invokes substantive principles of law entitling plaintiff to relief and contains allegations of facts which inform a defendant of what plaintiff will attempt to establish at trial is sufficient against a motion to dismiss. The court also stated at p. 290;

“plaintiff could be compelled by motion ... to plead more specifically or by interrogatories to give more information ... but this does not mean the petition does not state a cause of action in its present form. A pleader is required to state only the ultimate facts and it is not necessary to plead the facts or circumstances by which the ultimate facts will be established.”

In light of these standards we now evaluate the sufficiency of Buller’s claim of tor-tious interference with business expectations.

Buller, in Count I of her petition alleges the existence of a business in psychic readings and incorporated this allegation in Count II of her petition by reference. She then alleges that her business is exclusively referral and that she relies heavily on her reputation and good name. These allegations supply the element of a business expectancy as required by case law. Buller has a business uniquely designed to raise an expectation of future business. The word of mouth recommendations of clients lead her to expect future business and she claims an interference with such expectancy.

Buller also alleges that defendants had knowledge of the contract or expectancy, and in Count II clearly alleges that defendants were at all times aware of the referral nature of her business. A continuous awareness is knowledge of a situation. She continues by alleging the elements of intentional interference with business expectancies, a lack of justification and resulting damage, as required in order to state a claim of tortious interference with business expectancies.

Defendants, however, claim that this tort is a specific intent tort, and that under the Restatement (2nd) of Torts, § 8A and § 766B, Comment d (1977), it must be alleged that the interference was a primary motivation for the conduct or that the interference was known by the actor to be substantially certain to occur. We are not convinced that Missouri courts have imposed this gloss on “intentional interference.” Buller does, nevertheless, allege a specific intent by defendant to interfere with her business expectancies. As we are required to accept the facts alleged in her petition as true, we have noticed the unique nature of Buller’s business, where referrals which induce future business depend on her good name and reputation. To interfere with her good name and reputation would surely affect the prospects of future business. In Count II, Buller incorporated by reference allegations in Count I, that defendants published the article specifically for the purpose of discrediting her in her profession. She then further alleges an intentional interference with her business expectancies. It is clear that her reputation and good name are the essence of her business as she claims.

We hold that Buller has successfully alleged defendants’ specific intent to interfere with her business expectancies in Count II of her petition.

Defendants also claim that Buller had failed to plead an absence of justification, this simply is not so. In paragraph 17 of Count II of Buller’s petition she alleged “Defendants had no justification for such publication,” and in light of Scheibel, supra, this allegation sufficiently establishes this element of the tort, and this claim of defendants is without merit.

In view of the foregoing we hold that the trial court erred in sustaining defendants’ motion to dismiss Count II of Buller’s petition for failure to state a claim.

COUNTS III and V

Counts III and V of plaintiffs’ petition are, according to plaintiffs, claims for invasion of privacy. Missouri has, since Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076, 1079[2] (Mo.App.1911) recognized a common law cause of action for an invasion of privacy. “Invasion of privacy” is the general term used to describe four distinct torts, each of which has distinct elements which must be proved. Restatement of Torts (2nd) A.L.I., § 652A (1977) declares that the right to privacy is invaded when there is: (1) an unreasonable intrusion upon the seclusion of another; or (2) the appropriation of the other’s name or likeness; or (3) unreasonable publicity given to the other’s private life; or (4) publicity that unreasonably places the other in a false light before the public.

We recognized in Corcoran v. Southwestern Bell Telephone Company, 572 S.W.2d 212, 214 (Mo.App.1978) that the Restatement had not been expressly adopted in Missouri but that the distinctions were useful, if not critical, in deciding that case on appeal. In reaching its decision the Corcoran court proceeded to rely upon these distinctions.

The Missouri Supreme Court in Sofka v. Thai, 662 S.W.2d 502 (Mo. banc 1983) also relied upon these distinctions and quoted Corcoran, supra, at p. 510 as setting out the Restatement distinction. The Sofka court then proceeded to apply one of the specific types of the tort of invasion of privacy, intrusion, or seclusion, and noted that this was one of the identifiable forms of the tort of invasion of privacy.

From the foregoing cases we conclude that the Restatement distinctions have been adopted by use if not by express language, and that there are therefore four separate torts for the invasion of privacy in the state of Missouri, of which publicly placing one in a false light is one.

In Barber v. Time, Inc., 159 S.W.2d 291, 295[9, 10] (Mo.1942) our Supreme Court set out the rule to be followed in evaluating invasion of privacy claims involving public disclosure of private facts. If a court decides that the matter is outside the scope of proper public interest and that there is substantial evidence tending to show a serious, unreasonable, unwarranted and offensive interference with another’s private affairs, then the case is one for the jury. Barber, supra, at p. 295. The threshold decision is whether the matter in question is outside the scope of a proper or legitimate public interest, and this decision must inevitably rest upon the facts of each case.

Missouri courts have had numerous occasions to determine what matters are within the public interest.

In McNally v. Pulitzer Publishing Company, et al., 532 F.2d 69 (8th Cir.1976) the federal court in applying Missouri law considered an invasion of privacy claim and held that defendants’ acts of publishing parts of plaintiff’s psychiatric reports was not an invasion of privacy when other parts of the report were read in open court and were therefore matters of public record. The court noted that the person’s mental competency was information in which the public had a legitimate concern. McNally, supra, at p. 78.

In Langworthy v. Pulitzer Publishing Company, supra, the court held that a newspaper article regarding a theft reported by the plaintiff was not an invasion of privacy because the theft was a matter of public interest.

In Williams v. KCMO Broadcasting Division-Meredith Corporation, 472 S.W.2d 1 (Mo.App.1971) the court held that where the plaintiff was arrested by mistake and the arrest was televised, the plaintiff was involved in a noteworthy event about which the public had a right to be informed. The Williams court, at p. 5, distinguished this type of situation from one in which a woman’s dress was blown up over her waist in public and she had been photographed, and another in which a man’s injuries sustained on the job had been photographed by his employer and shown at safety meetings. Neither of these were held to be items of legitimate public interest and therefore created a cause of action for the invasion of right of privacy. In Barber, supra, the fact that plaintiff had entered a hospital for treatment of an eating disorder was held to be a private interest.

From the foregoing cases we believe it is clear that where the operation of laws and the activities of the police or other public bodies are involved, the matter is within the public interest. Where, however, events occur which affect the individual alone, and do not touch the sphere of public concern, they are not within the public interest.

Even though a matter is not within the public interest, the fact that it is wrongly publicized does not automatically point to an invasion of privacy. There must be substantial evidence tending to show a serious, unreasonable, unwarranted and offensive interference with the individual’s private affairs. Missouri courts frequently interpret this requirement as meaning that the plaintiff cannot recover unless the publication is such that the defendant should realize that a person of reasonable sensibilities would be humiliated. Williams, supra, at p. 31.

In summary, the generally recognized elements of the tort of disclosure of private facts are: (1) the publication; (2) absent any waiver of privilege; (3) of private matters in which the public has no legitimate concern; and (4) such as to bring humiliation or shame to a person of ordinary sensibilities. Langworthy, supra, at pp. 389-390. Williams, supra, at pp. 3-4.

Buller’s petition alleges the first two elements of the tort sufficiently. It alleges the publication of the news article in question and that she had refused to grant interviews prior to its publication. Under the standard of review to be applied we may accord the petition the reasonable inferences fairly deducible from the facts stated, and her refusal to grant an interview indicates an absence of any waiver or ■privilege. Further, the fact alleged that defendant reporter used a false name and “concealed the fact that she was a reporter on an assignment” further supports the absence of any waiver or privilege.

The next question to be considered is whether Buller’s psychic ability and her consultations with clients are private matters in which the public has no legitimate concern.

This matter clearly falls in the middle of the distinction drawn by earlier courts between acts of law enforcement bodies or other noteworthy events on the one side and health related or personal physical events on the other.

Were Buller involved in a noteworthy event, through her practice, such as the prediction of a world disaster, or reported or was arrested for a crime, we would feel comfortable with a decision that this matter was within the public domain. Rather her practice involves the highly personal business of attempting to predict future events in the lives of individual clients. This is far removed from the traumas and disasters which catapult private people into the public eye, or of crimes and law enforcement with which the public is validly concerned. Buller’s practice is clearly dissimilar to any of the matters which courts have determined to be within the public interest. Therefore, we hold that she successfully alleges that a private matter has been wrongfully publicized.

The remaining element to be alleged is the extent of humiliation or shame resulting from the alleged publication. The plaintiff must allege facts sufficient to show that a person of reasonable sensibilities would be humiliated by the disclosure, Williams, supra.

Buller alleges that she was depicted in the news article and drawing “as a psychic who gave readings while seated in a bed wearing a ridiculous costume with charts in her lap who conducted her business as if it were an assembly line and whose sole purpose was the acquisition of money with little or no concern for her clients.” It is reasonable to conclude that any member of a chosen profession with reasonable sensibilities would be humiliated and ashamed to be depicted as doing his or her job in such an unprofessional and incompetent manner.

For these reasons we hold that Buller stated a claim for public disclosure of private facts and that the trial court erred in sustaining defendants’ motion to dismiss Count III of Buller’s petition for failure to state a claim.

Roldan, too, in Count V of the petition, attempts to state a claim for public disclosure of private facts. He alleges a publication but in our view does not sufficiently allege absence of waiver or privilege. Although he alleges that prior to publication he lived a secluded life, this alone does not indicate to us a refusal to have anything to do with the press. In comparison, Buller alleged that not only did she refuse to grant interviews but that the defendant reporter employed a false name in order to gain her confidence. Roldan failed to allege anything other than he led a secluded private life. We may not from this allegation infer an absence of waiver or privilege.

Furthermore, Roldan fails to allege the element of humiliation or shame, the fourth element of public disclosure of private facts. Nor does he allege facts showing that a person of reasonable sensibilities would be shamed or humiliated.

We hold therefore that Roldan failed to state a claim for public disclosure of private facts.

We move now to a consideration of whether Roldan pleaded a claim for publicity placing him in a false light.

According to the Restatement (Second) of Torts, § 652E (1977):

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
a) the false light in which the other was placed would be highly offensive to a reasonable person, and
b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter, and the false light in which the other would be placed.”

Roldan does not plead the first element of the tort. Defendants’ description of Roldan as a “voodoo practitioner” and a practicer of “voodoo magic” would not necessarily be highly offensive to a reasonable person. An ordinary person might not even understand the implication of such terms and might even believe they connote some special power or ability and not as putting one before the public in a false light.

We hold Roldan did not state a claim for placing him in a false public light.

We hold therefore that the trial court erred in sustaining defendants’ motions to dismiss Counts I, II and III of plaintiff Buller’s petition for failure to state a claim for which relief can be granted, and we remand those counts to the trial court for further proceedings not inconsistent with this opinion.

With respect to Counts IV and V of the petition we affirm the trial court.

Affirmed in part and reversed and remanded in part.

SNYDER and STEWART, JJ., concur.

      . Webster’s Third New International Dictionary gives, among others, the following definitions:

        Voodoo: one who deals in spells and necromancy; a sorcerer's spell.

        Voodooism or Voudism: 1. a religion originating in Africa as a form of ancestor worship, practiced chiefly by negroes of Haiti and to some extent other West Indian Islands and the U.S., and characterized by propitiatory rites and use of the trance as a means of communicating with animistic deities. 2. the practice of black magic.

      . Daily Times Democrat v. Graham, 162 So.2d 474 (Ala.1964) and Lambert v. Dow Chemical Company, 215 So.2d 673 (La.App.1968).


author: JAMES J. GALLAGHER, Special Judge.

text:
    David T. KIEFER, et al., Respondents, v. FIRST CAPITOL SPORTS CENTER, INC., Appellant.
    No. 47321.
    Missouri Court of Appeals, Eastern District, Division Five.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Schiff & Van Dillen, Jack B. Schiff, Clayton, William C. Wefel, St. Louis, for appellant.
    Claude C. Knight, St. Charles, for respondents.
   JAMES J. GALLAGHER, Special Judge.

This is an appeal from a judgment of the Circuit Court of St. Charles County, Missouri, awarding the respondent damages in unlawful detainer under § 534.030 RSMo 1978. The property involved is improved real estate located in St. Charles, Missouri, owned by Roy R. Thoele and Madonna J. Thoele. They conveyed this real estate in limited trust to Joseph C. Meek, trustee, on July 7, 1971, for a term of 133 months to August 7, 1982. On March 7, 1980, David T. Kiefer was appointed successor trustee for the remaining term. The trust created was one known as a “Clifford Trust” described in the trial as a tax saving device wherein legal ownership of designated assets is transferred to a trustee in order that income will go to beneficiaries who may be in a lower tax bracket. It was suggested by questions in the trial that the Internal Revenue Code and regulations set forth the legal requirements for such a trust, but any such requirements were not detailed in evidence except an accountant witness testified that such a trust must be in effect for at least ten years.

On January 18, 1978, Roy R. Thoele and Madonna J. Thoele, designated as lessor, entered into a lease of the trust property with First Capitol Sports Center, Inc., as lessee, for a term of three years commencing February 1, 1978, and ending January 31, 1981, with monthly rental at $1,400.00. The lease was signed by the Thoeles as the lessor and by William C. Wefel on behalf of First Capitol Sports Center, lessee. Mr. Wefel was an attorney, stockholder and officer in the lessee corporation. He was not aware of the trust agreement. The lease does not mention the trust nor was the trustee, at that time Joseph C. Meek, designated as a party to the lease.

During the term of the lease, Roy R. Thoele managed the property. He received the rent payments, handled all maintenance questions with the tenant and transacted the insurance. After David Kiefer became trustee, he recommended to Mrs. Thoele that the lessee be directed to make the rental checks payable to David T. Kiefer, trustee, even though Roy Thoele would receive the checks and deposit them to the trust beneficiaries’ account. The lessee complied but did not inquire as to the nature of the trust arrangement. When the lease ended in January 1981 Mr. Wefel negotiated for First Capitol with Mr. Thoele for a new lease. During initial negotiations, First Capitol Sports Center remained on the premises on a month to month basis continuing to pay $1,400.00 monthly. These payments were accepted by Roy Thoele. The lessee never negotiated with David Kiefer, trustee. Discussions between Thoele and Wefel failed and on or about July 25, 1981, First Capitol received a written notice to terminate tenancy effective August 31, 1981. This notice was signed by David T. Hamilton, Attorney for Roy Thoele, owner.

After receiving written notice to terminate, Mr. Wefel of First Capitol received information that Roy Thoele was not the owner but that the property was in trust. No investigation was made as to the nature of the trust nor the extent of Roy Thoele’s authority. First Capitol remained in possession under the assumption that the notice to terminate was invalid since David Kiefer was the trustee and he was the owner and entitled to possession under § 441.060 not Roy Thoele. However, First Capitol did vacate the premises on May 31, 1982, pursuant to a written notice of termination delivered to David Kiefer by Mr. Wefel. First Capitol Sports Center paid a monthly rental of $1,400.00 for each month except the month of May 1982 for which it sent a check in the amount of $700.00 and applied a $700.00 security deposit to the rental.

On September 15, 1981, attorney David Hamilton filed a verified petition in the associate circuit court of St. Charles County for unlawful detainer, the parties being Roy Thoele, plaintiff, and First Capitol Sports Center, Inc., defendant. An amended petition was filed in October, and in February 1982 a motion by plaintiff sought “an order joining and substituting David T. Kiefer as a plaintiff” in the associate division. The motion was granted and David T. Kiefer, trustee, was “joined as plaintiff” and “ordered substituted for plaintiff Roy Thoele”, this being the language of the court order. Although the order permitting joinder was imprecise in form, it appears from the record that Roy Thoele continued to be regarded as a party and was not discharged.

In the trial court judgment was entered in favor of plaintiffs in unlawful detainer in the amount of $1,400.00 per month for a period of nine months multiplied by two for statutory damages, for a total of $25,-200.00 less credit of $11,900.00 for amounts paid, leaving a balance due of $13,300.00.

The principal issue is whether the written notice to the lessee, First Capitol Sports Center, Inc., to terminate tenancy under §§ 441.050 and 534.030, in an action for unlawful detainer was valid. Appellant contends Roy Thoele was not entitled to possession nor a proper agent and therefore could not give a valid notice of terminate tenancy. Collateral issues concern whether the petition in unlawful detainer was properly amended as to the party plaintiff and whether the amount of damages awarded was correct. We affirm on all issues.

The lease, from its inception to final termination, was not a model of landlord-tenant relations. The original lease designated Roy R. Thoele and Madonna J. Thoele as lessors in 1978 when in fact the property was in trust with Joseph C. Meek as trustee. However, the validity of this lease was not an issue in the trial court or in this appeal. There was oral evidence that Meek authorized Roy Thoele to sign the lease. During the term of the lease, it is quite evident that Roy Thoele managed the property in all particulars. He collected and deposited the rent, provided for insurance, received complaints on upkeep and maintenance, and negotiated with the tenant for a new lease when the original lease expired.

At this point it should be noted that after termination of the fixed term in the written lease to First Capitol Sports Center, a notice to the tenant to quit the premises would not have been required. See § 441.070; Kilbourne v. Forester, 464 S.W.2d 770, 774 (Mo.App.1970). If the tenant holds over with some form of consent from the landlord or his agent, then the possession may ripen into a form of tenancy generally at will and for a period of time usually for a month or more depending on the intention of the parties as indicated by their actions. The lessee in this cause became a tenant at will on a month to month basis. Both parties agree as to the month to month tenancy but disagree as to whether the tenancy should be characterized as one “at will” or “by sufferance”. For a discussion of the distinction, See Kilbourne v. Forester, 464 S.W.2d at 775, 776. The difference is not a matter of concern in this appeal but it is clear that the hold over tenancy in this matter is one at will on a month to month basis.

Thus, the problem of notice in this cause arises out of the fact that the tenant First Capitol Sports Center, Inc. held over after the fixed term of the written lease, establishing a new form of tenancy. But a new term of tenancy is not created without some form of consent on the part of the landlord or his agent. There must be some facts which indicate an assent by the landlord or agent to a tenancy. Millhouse v. Drainage Dist. No. 48 of Dunklin County, 304 S.W.2d 54, 59 (Mo.App.1957). In holding over after January 1981, the tenant through its officer and agent William Wef-el continued to deal exclusively on negotiations and rent payments with Roy Thoele.

The evidence in the trial court revealed no contact or discussions with the trustee Kiefer. Therefore, the consent necessary to establish the hold over month to month tenancy came by and through Roy Thoele acting as agent for the trustee Kiefer.

We must defer to the trial court’s determinations unless they are against the weight of the evidence or the product or erroneous application of the law. Rule 73.-01(c); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This requirement is applicable to appellate review in unlawful detainer. Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139 (Mo.App.1980). There was sufficient credible evidence before the trial court on which it could base its finding that Roy Thoele was acting as agent for the trustee David Kiefer. This included direct testimony of Kiefer and the accumulated uncontroverted actions of Roy Thoele over a number of years in which he handled all aspects of the management of the leased premises including the hold over period in which the lessee negotiated exclusively with Roy Thoele. There was also evidence that Roy Thoele contacted attorney David Hamilton with regard to the notice to First Capitol Sports Center to vacate the premises and the notice was identified by Thoele thus establishing authority for attorney Hamilton.

It is agreed that a properly designated agent could serve notice to terminate a tenancy. But appellant argues that such an agency must be clearly authorized and his actions ratified. Appellant emphasizes the fact that Roy Thoele represented himself to be the owner in the written lease and in the termination notice. From this, appellant argues that Thoele is not a proper agent and is barred from contradicting his written assertion of ownership. However, the trial court had before it not only the documents in which Thoele was improperly designated as owner, it also had sufficient evidence of Thoele’s actions as agent over a period of years, acting with the approval of the trustee, in all aspects of managing the property. The improper designation of title by Thoele does not bar or invalidate his actions as agent during the term of the written lease and in the hold over tenancy. It would seem incongruous to permit the tenant to rely on the acts of the agent Thoele to establish a month to month hold over tenancy yet deny that same agent authority to order termination of such a tenancy.

Appellant also claims that in this trust arrangement, known as a “Clifford Trust”, the trustee was prohibited from delegating any authority to Thoele, the settlor. In support, general authority on the law of trusts is cited. However, there is no evidence that this trust was disapproved by the Internal Revenue Service or that the arrangements were in violation of any Internal Revenue Code provision or regulation. Certainly no such law was pleaded or offered in evidence. The evidence in the trial court indicated that the trust arrangement ran its term of ten years as provided, without question by the Internal Revenue Service. The validity or propriety of the trust operations is not a matter for approval or disapproval in this appeal, having never been properly raised in the trial court. Ohlendorf v. Feinstein, 636 S.W.2d 687, 690 (Mo.App.1982).

In the original unlawful detainer petition filed by Roy Thoele in the associate circuit court, the trustee David Kiefer was not named as a party plaintiff. Five months after suit was instituted, a motion was filed in the associate circuit court requesting that David T. Kiefer, trustee, be joined and substituted as a party plaintiff pursuant to Rule 52.06. This motion was granted. Appellant argues that this action was erroneous since Roy Thoele had no standing to initially file an action in unlawful detainer, and thus there could be no addition or substitution of party-plaintiffs in that action. This claim is without merit. The parties dispute whether David Kiefer was joined in addition to Roy Thoele as a party or whether there was a substitution of Kiefer for Thoele. However, upon examination of the record and actions of the parties, it appears that the trial court regarded both Thoele and Kiefer as parties and that pleadings filed by the plaintiffs and defendant mentioned Kiefer and Thoele as party-plaintiffs.

Supreme Court Rules are applicable in actions before associate circuit courts to “the maximum extent practicable” except where otherwise provided by law or rule. § 517.020. Rule 52.06 provides for the addition of parties at any stage of an action on terms that may be just. The action in unlawful detainer was pending in the associate circuit court at the time David Kiefer was added as a party-plaintiff. No new cause of action was stated nor was the joinder of Kiefer in violation of the applicable statute of limitations. It should also be noted that this is an appeal from the judgment of the circuit court on appeal from the associate circuit court. Section 512.270 provides that on such appeal, the circuit court shall try the case “without regarding any error, defect, or other imperfection ...” in the associate division. This is applicable to claims in unlawful detainer. Man-iaci v. Hutchings, 581 S.W.2d 912 (Mo.App. 1979). The circuit court had jurisdiction to hear the cause in unlawful detainer and it entered a valid judgment therein.

Finally, appellant contends the trial court erred in computing the allowable damages. It appears that for the last month in which appellant First Capitol Sports Center made rental payments, it credited a $700.00 security deposit to its rental payment and forwarded a check in the amount of $700.00. The trial court did not consider the credit taken for the security deposit to be rental payment. Appellant filed no claim for a set-off of the $700.00 security deposit and no evidence was offered as to the circumstances under which the security deposit was to be applied, credited, or returned. Therefore the trial court properly disregarded appellant’s unilateral credit of the security deposit to the rent payment in determining damages in this action.

The judgment is affirmed.

DOWD, P.J., and SATZ, J., concur.

      . All statutory references are to RSMo 1978 incorporating the 1980 amendments.

      . When Maniaci v. Hutchings, supra was decided, § 534.550 RSMo 1969 governed appeals from the magistrate court to the circuit court in an unlawful detainer action. As of January 2, 1979, this section was repealed. However, this appellate process has remained substantially the same by the enactment of § 534.380 RSMo 1978, which refers the appellant to Chapter 512. This Chapter governs the appellate process generally, with § 512.270 RSMo 1978 concerning appeals from magistrate courts to circuit courts, particularly.


author: STEPHAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Scott Jubal KOSTER, Defendant-Appellant.
    No. 47831.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Mark G. Arnold, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   STEPHAN, Judge.

Defendant was found guilty by a jury of two counts of deviate sexual assault in the first degree, § 566.070, RSMo 1978, and one count of sexual assault in the first degree, § 566.040, RSMo 1978. Sentenced to five years in prison on two of the counts and one year on the third, all sentences to run concurrently, defendant appeals. We affirm.

Defendant does not challenge the sufficiency of the evidence to support the findings of the jury; we, therefore, set forth the facts in abbreviated form. Defendant and his wife were employed as house parents at the Jefferson County Juvenile Detention Center where the fifteen-year-old prosecutrix was confined in connection with her drug abuse on several occasions during the months of October and November 1981 and February 1982. On October 28, 1981, defendant’s wife was away from the center. Having determined that the prosecu-trix liked to smoke cigarettes, which practice violated the institutional rules, defendant locked the male inmates in their rooms, delivered breakfast to the prosecutrix in her room, and provided her with a cigarette. After she smoked it, defendant asked her what she was going to do for him to show that she would not tell about the cigarette. He asked her to take off her clothes and lie on the bed; she complied. Although she refused to consent to physical contact, defendant spread the girl’s legs and put his mouth on her vagina. Defendant then removed his trousers and inserted his penis into her vagina. Later in the day, defendant gave her another cigarette.

Shortly after Christmas of 1981, defendant’s wife telephoned the prosecutrix and invited her to visit the center, saying that she had a present for the prosecutrix. She was told that defendant would take her home. After visiting with defendant and his wife, the girl, accompanied by defendant, left in defendant’s automobile. Instead of taking the girl to her home, defendant took her to the unoccupied home of his grandfather. There, he asked her to disrobe, and she did. Another act of deviate sexual assault followed.

In his first point on appeal, defendant complains that the trial court erred in allowing three girls other than the prosecu-trix to testify regarding sexual advances made to them by defendant while they were inmates at the Juvenile Detention Center in Jefferson County. We disagree.

We recognize the general rule in Missouri that evidence of separate crimes in which the defendant allegedly was a participant is not admissible, unless this evidence directly relates to the defendant’s guilt in the crime charged. State v. Davis, 540 S.W.2d 122, 123 (Mo.App.1976). Evidence of other crimes is admissible, however, to prove the crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) the identity of the person charged with the crime; or (5) a common plan or scheme of two or more crimes so related to each other that proof of one tends to establish the other. State v. Davis, supra. See also State v. Young, 661 S.W.2d 637, 639-40 (Mo.App.1983); State v. Young, 643 S.W.2d 28 (Mo.App.1982); State v. Dalton, 587 S.W.2d 644, 645 (Mo.App.1979).

As in State v. Dalton, supra, a number of circumstances appear in this case which indicate that all of the sexual encounters “resulted from a scheme or plan by the defendant to exercise control and custody over his wards and to make them the target of his sexual excesses.” The prosecutrix and the three other girls were all approximately fifteen years old; they were all inmates at the detention center and were under the supervision and control of defendant. They testified that sexual encounters were initiated by defendant when they were alone with him at the detention center. All of these incidents occurred either in late 1981 or early 1982. The girls all testified that defendant offered them special privileges, such as smoking, making personal long distance telephone calls, or watching television after normal hours, if they would engage in sexual activities with him. There was also consistent testimony that defendant threatened these girls with reprisals in various forms if they told anyone about the sexual activities.

In addition, evidence of other crimes is properly admitted on the issue of the identity of the defendant when the similarity of methodology links them to the defendant. In both State v. McDaniels, 668 S.W.2d 280, 282 (Mo.App.1984) and State v. Young, 661 S.W.2d 637, 639 (Mo.App.1983), this Court acknowledged the general rule that in prosecutions for sexual crimes the defendant’s propensity for illicit sexual contact with the prosecuting witness may be shown, but evidence of similar conduct with others is inadmissible for the sole purpose of demonstrating the defendant’s propensities. But, in each case, the Court, quoting McCormick on Evidence, § 190, pp. 449-50 (2d ed. 1972), held such evidence was properly admitted:

(T)o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.

In the instant case, the defendant’s approach to each of the young girls was, indeed, as “distinctive as to be like a signature,” and the evidence was properly admitted.

In his final point, defendant claims that it was plain error to allow the State to elicit evidence and later to comment in argument concerning defendant’s silence when he was initially confronted with the accusations of the prosecutrix. No objections were made at trial, and it is apparently defendant’s position that the trial court should have intervened on its own motion. Defendant premises the point on his claim that the “record reveals a hopeless ambiguity” as to whether defendant’s silence was induced by the Miranda warnings or constituted a tacit admission of guilt. We have examined the record and find no such ambiguity.

The confrontation occurred at a meeting convened by Betty Seely, Chief Juvenile Officer of Jefferson County, in her office on March 2, 1982. Present at the meeting, in addition to defendant and Mrs. Seely, were Deputy Juvenile Officers Alderson and Baumstark, and Sergeant Barry Gregory of the Jefferson County Sheriff’s office. Defendant was not under arrest or in custody when the meeting commenced. At the outset, Mrs. Seely informed defendant that she had received information concerning sexual misconduct between defendant and the prosecutrix and that his employment was therefore terminated. Defendant did not deny the charges, but asked for specifics. As these were supplied, he simply acknowledged that he understood them, but did not deny them. Thereafter, Sergeant Gregory read defendant his Miranda rights, and defendant stated that he wished to consult a lawyer. The meeting was immediately concluded. It was the pre-Mi-randa silence which was placed before the jury.

In support of his position on this point, defendant relies upon such cases as State v. Nolan, 595 S.W.2d 54 (Mo.App.1980); State v. Pogue, 563 S.W.2d 544 (Mo.App.1978); and State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970). We find these cases inap-posite for the reason that each involved silence of a defendant after he was in custody or after he had been advised of his Miranda rights. Such was not the case here. Defendant was informed of the accusations by his supervisor in terms of reasons for his dismissal. The meeting was not an interrogation session, but the performance by Mrs. Seely of a function of her office in a personnel matter. “It is clear in Missouri that the silence of an accused when not under arrest and in circumstances such that only a guilty party would remain silent, is admissible as being in the nature of an admission against interest.” State v. Peebles, 569 S.W.2d 1, 2 (Mo.App.1978). Such was the case here; defendant’s failure to deny the truth of the reasons for his dismissal was properly placed before the jury.

Affirmed.

SIMON, P.J., and STEWART, J., concur.

      . According to defendant’s own testimony, Sergeant Gregory was not present when Mrs. Seely confronted him with the accusations, but rather that Gregory arrived some fifteen minutes later. In defendant’s words:
      So he [Gregory] came in and he wanted to ask me a bunch of questions and I said, "I want to know what I’m being charged with, first of all.” And he said, "Didn’t Betty Seeley tell you?” And I said, "Just allegations.” He said, “I’ll read you your rights then.” And he read them off and he asked me if I understood them all and I said, “Yes, sir.” And he pulled out a pad of paper and attempted to start — he was going to ask me some questions and I said, “Would you skip back to the one where I would wish to remain silent until I’ve spoken to that lawyer?” And with that, he got kind of mad and he slapped his little book and left.


author: GAERTNER, Judge.

text:
    Handy MOORE, Plaintiff-Respondent, v. L.R. SEABAUGH and Norman Weiss, Defendants-Appellants.
    No. 47857.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.

      J. Michael Payne, Cape Girardeau, for defendants-appellants.
    Manuel Drumm, Sikeston, for plaintiff-respondent.
   GAERTNER, Judge.

Appellants Dr. L.R. Seabaugh and Norman Weiss appeal from the trial court judgment against them in a bench-tried case on an action for breach of contract. We affirm.

Appellants list four points on appeal. First, they argue that they are not personally liable on the contract sued upon because they were merely agents for disclosed principals. Second, appellants contend that even if they are personally liable, their liability is not joint and several with the liability of the alleged disclosed principals because the signators’ duties under the contract were different. Third, they maintain the contract sued upon fails for lack of consideration. Fourth, they claim that the lawsuit should have been stayed because of bankruptcy proceedings of the alleged disclosed principals.

Appellants entered into a management contract with Pioneer Orchards Co. and its president, Stanley Beggs, on May 19, 1980, where appellants agreed to aid in the management and control of the corporation’s financial affairs. Several months later, on September 1, 1980, respondent Handy Moore, an orchard owner, entered in to a marketing contract with Pioneer Orchards Co., Beggs, and both appellants for the processing, packaging and sale of his apples. Less than one year later, respondent sued Pioneer Orchards Co., Beggs, and appellants for breach of the marketing contract. The trial court found against appellants and in favor of respondent on two of the three counts in his petition. Subsequently, Pioneer Orchards Co., and Beggs, who had filed bankruptcy petitions, were dismissed.

The point raised by appellants is that the trial court erred in holding them personally liable for breach of the marketing contract because appellants were merely agents of disclosed principals, namely, Pioneer Orchards Co. and Stanley Beggs. Respondent knew that appellants had signed the management contract with Pioneer Orchards Co. and Beggs, and that the management contract required appellants’ written approval of any financial transaction undertaken by Pioneer Orchards Co.

Respondent was thus aware that appellants were acting as agents for Pioneer Orchards Co. and Beggs. The general rule is that where a third party and an agent for a disclosed principal make a contract, the agent is not personally liable to the third party for a breach of the contract. Grether v. DiFranco, 178 S.W.2d 469, 473[5-7] (Mo.App.1944).

The ordinary rule of liability for the agent of a disclosed principal may give way, however, if the parties to the contract agree upon the personal liability of the agent. Morrison v. Painter, 170 S.W.2d 965, 971[18, 19] (Mo.App.1943); Bridges v. Rice, 99 S.W.2d 531, 534[1-4] (Mo.App.1936).

The trial court could infer that appellants agreed to be personally liable on the marketing contract because they each signed the contract as individuals with no limitation that they were signing only in their capacities as agents. An agent incurs personal liability, regardless of disclosure of the principal, where the agent contracts in his own name, rather than on behalf of his principal. Meyers v. Kilgen, 177 Mo.App. 724, 160 S.W. 569, 573[6] (1913). Wired Music, Inc. v. Great River Steamboat Co., 554 S.W.2d 466 (Mo.App.1977), cited by appellants, is distinguishable because there the individual signed the agreement as president of and for the corporation and was thus not personally liable on the contract.

In addition to appellants’ signatures without limitation, the contract contained a clause which defined the “Second Party” as including not only Pioneer Orchards Co. and Beggs, but also appellants. Nowhere in the contract are appellants’ obligations differentiated from Pioneer Orchards Co.’s and Beggs’ duties. The contract continuously speaks of the rights and duties of the “First Party,” i.e., respondent, and “Second Party.”

Where an individual signs an agreement on behalf of a disclosed principal and the capacity in which the individual signs is evident, he will not be personally liable on the instrument absent clear and explicit evidence of an intention to be bound. Wired Music, Inc. v. Great River Steamboat, supra, at 468[3, 5]; Bridges v. Rice, supra. On the other hand, where the individual signs the agreement without indicating that this signature is only given as an agent, the question of his personal liability is one for the trier of fact. Meyers v. Kilgen, supra. Appellants signed the marketing contract as individuals and allowed themselves to be included as parties to the contract with their principal. That appellants, under these circumstances, could create a presumption of their nonliability merely by a disclosure of their agency is an unsupported proposition. Indeed, it seems the better rule is that upon proof that an agent signed his signature without limitations, to an instrument and with no limitations stated in the body of the instrument, the other party to the agreement has made a prima facie case for the agent’s personal liability, and the agent bears the burden of proving both disclosure of the principal and the intention of the parties not to impose personal liability on the agent. Under the standard of review in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we cannot hold the trial court erred in finding appellants personally liable.

Appellants next contend that even if they were personally liable on the contract, they were not joint and several obligors with Pioneer Orchards Co. and Beggs. The point has no merit.

Appellants disparage the conclusion that they intended to be individually bound on the marketing contract, reasoning that for them to have assumed such potentially great liability absent any personal gain to themselves defies common sense. We disagree. Appellants, who were to receive a small percentage of the corporation’s gross income under the management contract, are jointly and severally liable under the marketing contract to respondent. “Under the common law, where two or more persons undertake the performance of the obligation, the presumption is that the undertaking was joint.” Don L. Tullis & Associates, Inc. v. Gover, 577 S.W.2d 891, 900 (Mo.App.1979), quoting Illinois Fuel Co. v. Mobile & Ohio R. Co., 319 Mo. 899, 8 S.W.2d 834, 840 (1928). “A joint contract is one by which two or more promisors are jointly bound to fulfill its obligations, and either of whom may be charged with the entire liability under the contract.” Don L. Tullis & Associates, Inc. v. Gover, 577 S.W.2d at 900. However, in addition to the common law understanding of joint and several liability under the terms of a contract, section 431.110, RSMo.1978, provides that “[a]ll contracts which, by the common law, are joint only, shall be construed to be joint and several.” Therefore, appellants are jointly and severally liable to respondent by the common law combined with statutory authority.

Appellants isolate references to “Second Party” in the marketing contract to support their contention that the contract language contemplated services by only one of the individuals comprising the “Second Party,” i.e. Stanley Beggs, and omitted appellants. “An instrument is not to be construed by focusing upon a single aspect thereof and ascribing a meaning thereto, without reference to its context in the whole instrument.” Butler v. Centerre Trust Co., 656 S.W.2d-831, 834[2] (Mo.App.1983). “That could result in construction by distortion.” Id. While appellants argue only Beggs was knowledgeable in the day-to-day mechanics of apple processing and storing, the practical construction given to a contract by the parties may not be considered where the contract is free from ambiguities. J.E. Blank, Inc. v. Lennox Land Co., 351 Mo. 932, 174 S.W.2d 862, 868[8] (banc 1943). “In such a case the contract must be construed as written.” Id. “In other words, the general rules of construction may not be used to create an inconsistency or ambiguity where none exists.” Clayton Brokerage Co. of St. Louis, Inc. v. Raleigh, 679 S.W.2d 376 (Mo.App.1984). “While the construction the parties themselves place upon an agreement is of considerable significance in ascertaining the meaning of terms in an ambiguous contract, a contract free from ambiguity is to be construed as written.” Dehner Urban Redevelopment Corp.-St. Louis v. Dunn & Bradstreet, Inc., 567 S.W.2d 700, 704[5-7] (Mo.App.1978). “It is only when the contract or contract term is unclear that the court considers evidence of how the contract was understood or acted upon by the parties.” Id. We find no ambiguity exists in the term “Second Party.” “A provision is ambiguous only when it is reasonably susceptible of different constructions and not by the fact that the parties do not agree on its construction.” Republic National Life Ins. Co. v. Missouri State Bank and Trust Co., 661 S.W.2d 803, 808 (Mo.App.1983). The contract specifically lists who comprise the “Second Party." Rules of construction applicable only when ambiguity exists have no bearing on this case. We need not go beyond the face of this unambiguous instrument to divine the parties’ intentions to whom “Second Party” actually referred. Because the identity of the persons in “Second Party” is clear, we find no merit to appellants’ claim that, despite their inclusion as “Second Party,” they were not intended to be jointly and severally liable under the contract.

Appellants’ second issue contends the marketing contract lacked consideration “for any promise made in the contract by appellants in their individual capacity.” We, like respondent, are somewhat mystified by appellants’ point. Prom their argument, we glean appellants’ point to be that no consideration existed for the contract promises by appellants because no benefit from the contract would inure to them individually. Appellants state that they as individuals, received no share of the profits from the sale by Pioneer Orchards of respondent’s apples. They argue to hold them individually liable, absent personal profit to them, is illogical. Appellants misunderstand what constitutes consideration to support a finding that a binding contract was created. Actual benefit is not necessary to constitute consideration. Cox v. A.P. Green Fire Brick Co., 230 Mo.App. 774, 75 S.W.2d 621, 625[2] (1934). Either a detriment to the promisee or benefit to the promisor can constitute consideration sufficient to support a contract. W.E. Koehler Construction Co., Inc. v. Medical Center of Blue Springs, 670 S.W.2d 558, 561[3,4] (Mo.App.1984). Detriment to promisee may consist of doing anything legally he is not bound to do or refraining from doing anything he has a right to do. See Heath v. Spitzmiller, 663 S.W.2d 351, 356 (Mo.App.1983). Valuable consideration may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, loss or responsibility, given, suffered or undertaken by the other. Atherton v. Atherton, 480 S.W.2d 513, 518[6] (Mo.App.1972). Even slight consideration is sufficient to support a promise. Ireland v. Shukert, 238 Mo.App. 78, 177 S.W.2d 10, 15[7-9] (1944).

Even a cursory reading of the marketing contract reveals consideration supports it. Respondent Moore promised to furnish certain equipment to the Second Party who, in turn, promised to maintain the equipment and be responsible for the cost of repairs. The parties agreed to give the Second Party an option to buy a one-half interest in the equipment. From these promises, consideration flowed to respondent because he acquired the benefit of having his equipment maintained and repaired. Consideration flowed to the Second Party, including the appellants, because it acquired the benefit of the use of the machinery and the right to purchase a one-half interest in the equipment. That consideration supports the contract is unassailable. We find no merit to appellants’ second issue.

Appellants’ final issue states the trial court erred in failing to stay the circuit court proceedings on this lawsuit until the conclusion of a bankruptcy case pending in federal court. The bankruptcy petitions had been filed by Pioneer Orchards and Stanley Beggs, appellants’ co-defendants in the case at bar. While all the defendants had moved for a stay of the litigation in state court, the trial court granted a stay only to Pioneer Orchards and Beggs. Appellants argue that because a stay was granted to their co-defendants, debtors in bankruptcy, the proceedings should have been stayed for them as well.

The filing of a bankruptcy petition stays legal proceedings against the debtor, pursuant to 11 U.S.C. § 362. The plain language of Section 362 clearly and repeatedly refers to actions against the debtor. Nowhere does the statute imply that the stay applies to actions against non-bankrupts, as well as the bankrupts, in a single proceeding. In the case of In Re Aboussie Brothers Construction Co., 8 B.R. 302 (D.C.E.D.Mo.1981), the United States District Court for the Eastern District of Missouri affirmed the bankruptcy court’s refusal to enjoin the plaintiff from continuing with its suit in state court against the individual partners of a bankrupt partnership, despite the possibility that the partners’ ability to contribute funds to the reorganization of the debtor might be affected by the suit. Accord: Wedgeworth v. Fibreboard Corp., 706 F.2d 541 (11th Cir.1983); Almy v. Terrace Land Development, Ltd., 32 B.R. 390 (D.C.N.D.Cal.1983); In re Van Shap, Inc., 8 B.R. 73 (Bkrptcy, N.D.Ohio 1980); In re Larmar Estates, Inc. 5 B.R. 328 (Bkrptcy, E.D.N.Y.1980).

Appellants argue the stay should apply to them, as well as their co-defendants, because allegations against their co-defendants and themselves are interwoven, presenting common questions of law and fact which could be resolved in one proceeding. In support of their argument, they cite Federal Life Insurance Company (Mutual) v. First Financial Group of Texas, Inc., 3 B.R. 375 (D.C.S.D.Tex.1980). In Federal Life, the district court judge refused to permit a plaintiff to sever its claim against the bankrupt and proceed against the individual defendants, one of whom was the corporate officer of the bankrupt, on a charge of procuring monies by fraud and misrepresentation. The court stated that the allegations against the bankrupt and its officers were “inextricably interwoven, presenting common questions of law and fact, which can be resolved in one proceeding,” id. at 376, and “arise from the same factual and legal basis.” Id. at 377. Despite this language, the court seemed to rest its conclusion not on the automatic stay provision, but on the court’s inherent discretion to permit or deny severance of actions in light of considerations of justice and efficiency.

The reasoning of Federal Life does not appear determinative of the instant issues. Federal Life had emphasized that severance “would not be conducive to judicial economy and would unduly hinder the efforts of the Bankruptcy Court.” Id. at 376. No evidence of judicial economy being jeopardized or the bankruptcy court being hindered exists. No showing that the failure to grant a stay worked a hardship on appellants exists. We see no reason to extend the statutory protection afforded bankrupt debtors by Section 362 to related, but also independent non-bankrupt co-defendants. Point denied.

Judgment affirmed.

CRIST, P.J., and STEPHAN, JJ., concur.


text:
    William A. BARKER, Plaintiff-Respondent, v. Margaret E. BARKER, Defendant-Appellant.
    No. 47874.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.

      W.W. Sleater, Clayton, for defendant-appellant.
    Paul E. Ground, Manchester, for plaintiff-respondent.
   GAERTNER, Judge.

Wife appeals from a decree of dissolution. We affirm.

The wife’s sole point on review is that the trial court erred in dividing the marital property because it awarded the husband’s vested but non-matured pension to him in its entirety.

The parties first appeared before the trial court in 1980. A settlement agreement was reached and the parties executed a document providing for a division of marital property, a lump sum payment by husband to wife and for his payment of her attorney’s fees. Three years later it was discovered, in some unexplained manner, that the trial court had failed to enter any decree of dissolution. Additionally, it developed that no consideration had been given in the agreed division of property to marital assets consisting of the husband’s pension and the wife’s bookkeeping business and Individual Retirement Account (IRA). A second hearing was conducted. The court then entered judgment in accordance with the 1980 settlement agreement, which had long before been implemented by the parties, and awarded the pension to husband, the IRA and business to wife.

Relying upon Kuchta v. Kuchta, 636 S.W.2d 663 (Mo. banc 1982); Lynch v. Lynch, 665 S.W.2d 20 (Mo.App.1983) and Fort v. Fort, 670 S.W.2d 173 (Mo.App.1984), wife argues that she is entitled either to assets equal to V2 of the present-day value of the pension or to ½ of the proceeds received from the pension upon maturity. Her argument exceeds the rule laid down by these cases. They hold only that a vested but non-matured pension is a marital asset, the precise disposition of which, as well as other marital property, depends upon the facts of each case. Kuchta, 636 S.W.2d at 665-66; Lynch, 665 S.W.2d at 23; Fort, 670 S.W.2d at 175. Neither these cases nor any other authority mandate an equal distribution of a pension or its present-day value.

Wife’s argument is to the effect that because the trial court adopted the distribution of assets agreed to three years earlier, it should be compelled to make an equal distribution of the overlooked assets. She asserts that since the parties thought they were divorced, divided their property and went their separate ways, the four factors for consideration in dividing marital property as set forth in § 452.330, RSMo. 1978, could not warrant an unequal distribution of these assets. Not so. In Schulz v. Schulz, 612 S.W.2d 380 (Mo.App.1980), the trial court was called upon to distribute certain marital assets overlooked in a dissolution decree entered two years earlier. We held that in making a just division of these assets, the trial court must take into account the marital property already distributed. Id. at 388. That is exactly what the trial court did here. The distribution of marital property in the 1980 settlement agreement heavily favored the wife. The court distributed the overlooked marital assets by awarding the pension to husband and the business and IRA to wife. Even if wife’s contention that this distribution favored husband is correct, this does not warrant our interference with the exercise of the broad discretion vested in the trial court. Considering the totality of the property division, we are unable to discern any abuse of judicial discretion.

Judgment affirmed.

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

      . The circuit judge who heard the matter originally had retired in the interim.


author: CRIST, Judge.

text:
    Benjamin BIRD, Appellant, v. STATE of Missouri, Respondent.
    No. 48011.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Gary L. Robbins, Public Defender, Jackson, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

This is an appeal from the trial court’s order denying a petition for writ of error coram nobis after an evidentiary hearing. We affirm.

Appellant contends his pleas of guilty, entered on April 11, 1972, to two charges of stealing more than fifty dollars, felonies at that time, were not entered knowingly, intelligently and voluntarily. The 1972 convictions were used to enhance punishment for two other felonies for which appellant pled guilty in January of 1982. Appellant was sentenced to twenty years imprisonment for the 1982 felonies.

Less than a year following his 1972 conviction, appellant pleaded guilty to charges of burglary and stealing. At that time he was questioned by the court and the ramifications of waiving his right to a probationary hearing were discussed. Appellant had approximately seven other convictions, most of which were for receiving stolen property. He filed his petition for writ of error coram nobis on August 16, 1982, challenging the 1972 plea. After an evidentia-ry hearing, the court entered an order on November 9, 1983, denying the petition.

The trial court did not abuse its discretion in denying the writ of error cor-am nobis. The petition was not timely asserted. Challenge to the 1972 convictions should have been made when they were pleaded and tried as part of the 1982 felony convictions. Howard v. State, 633 S.W.2d 222, 223 (Mo.App.1982). Further, the trial court properly found ten years too long a delay for allowing a writ of coram nobis. Skaggs v. State, 476 S.W.2d 524, 528 (Mo.1972); Williams v. State, 658 S.W.2d 506, 507 (Mo.App.1983).

Finally, appellant did not'meet his burden of proof that the 1972 guilty plea was entered involuntarily. Although appellant was a seventeen-year-old first offender, he was represented by counsel of his choice, and he was advised by his attorney prior to the hearing. That the trial court did not specifically discuss constitutional rights waived by a guilty plea does not render that plea involuntary. Foster v. State, 590 S.W.2d 912, 913 (Mo. banc 1979); Paxton v. State, 565 S.W.2d 750, 752-53 (Mo.App.1978).

Judgment affirmed.

REINHARD, C.J., and DOWD and KA-ROHL, JJ., concur.


author: SIMON, Presiding Judge.

text:
    Ruth Susan TRAPANI, Petitioner-Respondent, v. Carmelo Mario TRAPANI, Respondent-Appellant.
    No. 48081.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Diekemper, Hammond & Shinners by John A. Turcotte, Jr., St. Louis, for petitioner-respondent.
    Nicholas J. Riggio, Sr., St. Louis, and Gail N. Gaus, Clayton, for respondent-appellant.
   SIMON, Presiding Judge.

Husband appeals from a decree of dissolution challenging the trial court’s inclusion and division of certain assets as marital property. Husband states the trial court erred in the division of the marital property in failing to award him as his separate property: (1) the interest earned on inheritance money husband received during the marriage; and (2) the monies received from a settlement of husband’s personal injury lawsuit for injuries incurred in an automobile accident during the marriage. We affirm the judgment.

The parties were married in 1954 and had two children, only one of whom was still a minor at the time the decree was rendered on August 5, 1983, dissolving the parties’ twenty-nine year marriage. Both parties were employed during the early part of their marriage and at the time of the dissolution hearing. In 1964, during wife’s second pregnancy, wife moved from the marital residence to her parents’ home. At that time husband and wife also separated their finances. Wife returned to the marital residence a few weeks later where both continued to reside; however, they led separate lives from 1964 until their divorce, each paying his or her own personal expenses and keeping their property and finances separate. They shared payment of family expenses out of their separately managed funds. Throughout this period, husband used his wages to make the monthly loan payment on their residence, a duplex, until it was paid off in 1972. The down payment of approximately $15,000 was made on their residence in 1962 when the parties still maintained a joint account. Husband also collected the rental income from the upstairs apartment which they rented and he paid for all repairs, improvements, and expenses, including utilities, insurance, and taxes, on their property. Husband maintained his money in sundry separate accounts which he frequently closed and reopened elsewhere. Several of husband’s separate accounts contained deposits of funds, excepting the personal injury settlement and inheritance he received during the marriage which were clearly marital in character, e.g. husband’s wages, rent collected from the parties’ jointly owned residence, dividend income from jointly owned stock, refunds from jointly filed income tax returns, and a portion of his retirement plan fund. At the time of trial, husband had consolidated all the funds from these separate accounts into one account in his name at Southwest Bank, amounting to $73,000. Of this $73,-000, the trial court set aside husband’s $25,000 inheritance as his separate property and held the remaining $48,000, including husband’s $13,900 personal injury settlement, to be marital property which he divided evenly between husband and wife. Wife was awarded her separate property valued at approximately $30,200, including her inheritance from her father of stocks, notes, insurance proceeds, and an interest in real estate which she received during her marriage. The parties’ marital residence was ordered to be sold with the proceeds to be divided equally.

Initially, we recognize the standard governing our review: we must sustain the trial court’s decree unless there is no substantial evidence to support it, unless it is against the weight of evidence, unless it erroneously declares or applies the law. Sturgis v. Sturgis, 663 S.W.2d 375, 379 (Mo.App.1983).

Husband’s first point is that the trial court erred in not awarding husband as his separate property interest income earned on the funds he had inherited during the marriage. By the date of dissolution, husband had received $25,000 of his $50,000 inheritance in three separate installments: $5,000 in 1962; $10,000 in 1972; and $10,-000 in 1977. Prom the dates of receipt to the date of the dissolution hearing, he deposited his inheritance money in several financial institutions in certificates of deposits or passbook savings held in his name only. Frequently, he would close out these accounts and reinvest the money with interest in new accounts. Thus, he argues the original inheritance was exchanged for different property numerous times and that any enhancement in value as a result of these exchanges is his separate property under § 452.330.2(2) RSMo Cum.Supp.1983. (Statutory references will be to RSMo Cum.Supp.1983 unless otherwise stated.)

Section 452.330.2 defines marital property as all property acquired subsequent to the marriage except:

(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage.

All property acquired by either spouse subsequent to the marriage and prior to the decree of legal separation is presumed to be marital property regardless of how title is held. Section 452.330.3. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in § 452.330.2. Husband asks us to find that the interest on his inheritance falls within an exception listed above in Subsection 2 of § 452.330.2 and to classify the interest accrual as non-marital property by analyzing the source of the increase in value.

Husband posits that the interest from his inheritance, if generated by marital efforts, is marital property; if generated by “natural enhancement,” and not the personal efforts of a spouse, the interest is separate or non-marital property. On this premise, he argues the evidence established that the interest accrual was not the result of spousal contribution, but rather, the result of “natural enhancement” to which the wife is not entitled.

We need not resort to the “natural enhancement” or “spousal contribution” distinction. The record supports the trial court’s finding that husband’s several accounts, although treated by him as separate property, contained not only his separate funds (e.g. his inheritance), but also funds clearly marital in character — his wages, rent from the parties’ jointly owned residence, dividends from jointly owned stock and refunds from jointly filed income tax returns. Subsequent to the filing of the dissolution petition and prior to the dissolution hearing, husband closed these accounts and consolidated them into a single account. While husband denied he had deposited any marital funds in his several accounts, the record indicates that the trial court examined the various accounts and found otherwise. It is the trial court’s prerogative to determine the credibility of the parties and to accept or reject all, part or none of their testimony. Whitenton v. Whitenton, 659 S.W.2d 542 (Mo.App.1983). On review, we give due regard to the trial court in judging the witnesses’ credibility. Id.

The trial court possesses broad discretion in the determination of the identity of marital property and its division. In commingling his own funds with marital funds, husband failed to sufficiently segregate his own property. Jaeger v. Jaeger, 547 S.W.2d 207, 211 (Mo.App.1977). Such a commingling is indicative of an intent on the part of husband to contribute his separate, non-marital property, to the marital estate. Accord Jaeger v. Jaeger, supra. Thus, the interest earned on the husband’s inherited funds may be regarded as marital property. Further, husband failed to establish what portions of the interest from the commingled accounts could be attributed to interest earned on his inheritance. The same failure of proof occurred in relation to the single consolidated account. Husband’s first point is denied.

Husband’s second point on appeal claims that the proceeds received in the settlement of his personal injury claim were improperly included in the division of marital property. Husband had received approximately $13,900 resulting from the settlement for back injuries he sustained in an automobile accident during the parties’ marriage. Wife was not a party to the lawsuit nor did she institute a separate proceeding for loss of consortium. The settlement check was made payable to both husband and wife, but wife refused to sign the check. In an action to enforce the settlement, the Circuit Court entered an order which barred wife from asserting a claim for damages against the insurance company’s insured and which required the insurance company to issue a draft payable to husband only.

Husband maintains that the insurance settlement proceeds are within a statutory exception under § 452.330.2(2) and therefore are not marital property. To fall within that exception, husband states he entered marriage in good health but suffered an injury therefrom so that he received the personal injury settlement in exchange for his loss of health, a personal loss, as well as his pain and suffering.

In Nixon v. Nixon, 525 S.W.2d 835, 839[6] (Mo.App.1975), we held that, under the statutory definition of “marital property,” “all property acquired by either spouse subsequent to the marriage” includes the property acquired as a result of the settlement of a personal injury action, and all increases in value therefrom. It is within the discretion and the function of the trial court to weigh the factors relevant to the parties’ needs and circumstances and to determine what portion, if any, of the settlement award should be distributed to the wife. We reaffirm our conclusion in Nixon and hold that monies received in a personal injury action constitute a marital asset subject to equitable distribution in dissolution proceedings.

Husband raises a sub-issue in this point that wife was barred from any claim of the settlement funds because of the earlier court order entered to enforce settlement. The earlier court’s ruling only barred wife from bringing any claim for damages against the insurance company's insured, the defendant in the personal injury suit. No principle of estoppel precludes wife’s claim to the settlement proceeds as a portion of marital property. Point denied.

The judgment of the trial court is affirmed.

STEWART and STEPHAN, JJ., concur.

      . On appeal, neither party contests the trial court’s designation of their inheritances as separate property.