author: BLACKMAR, Judge. WELLIVER, Judge,

text:
    David GOODMAN, Plaintiff-Appellant, v. ST. LOUIS CHILDREN’S HOSPITAL, et al., Defendants-Respondents.
    No. 66095.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.

      Thomas C. DeVoto, Robert F. Ritter, Kevin M. Cushing, St. Louis, for plaintiff-appellant.
    Gary Bomkamp, Anthony F. Vaiana, Dennis L. Callahan, W. Munro Roberts, Joseph M. Kortenhof, Phillip A. Franklin, St. Louis, for defendants-respondents.
   BLACKMAR, Judge.

The question before us is whether § 516.-105, RSMo 1978, which causes the statute of limitations on medical malpractice to run against a minor, may be applied to bar a claim in which the alleged act of malpractice occurred prior to the effective date of the statute, August 13, 1976. The statute reads as follows:

All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of, except that a minor under the full age of ten years shall have until his twelfth birthday to bring action, and except that in cases in which the act of neglect complained of its introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs, but in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of.

The plaintiff was born August 6, 1961. He alleged that he was damaged by the malpractice of the defendant hospital and six physicians named as defendants in 1972, when he was 10 years of age. Suit was filed on July 20,1981, at which time he was 19 years of age.

The defendants moved to dismiss the petition because of the bar of the statute of limitations above quoted. The circuit court sustained the motion. The Court of Appeals reversed and remanded. We granted transfer of this case and also of McLeran v. St. Luke’s Hospital of Kansas City, 687 S.W.2d 892, decided this day, because of the importance of the issues presented. We reverse and remand for further proceedings.

The plaintiff argues for reversal that, as a minor, he had a “substantive right” in the statute of limitations in force at the time of his alleged injury by reason of § 516.170, RSMo 1978, which specifies that statutes of limitation are tolled during the period of minority. He further relies on the general savings statute, § 1.170 RSMo 1978, which provides that the repeal of a statute may not affect any accrued or established right. The plaintiff also alleged that § 516.105, RSMo 1978 is unconstitutional, in discriminating between minor plaintiffs in malpractice suits and other minor plaintiffs, and in requiring a minor to sue although disabled from bringing suit in his or her own name.

The defendants, citing substantial authority, argue that statutes of limitation are procedural rather than substantive, and may be applied to shorten the time for suing on existing claims. They reject the plaintiffs assertion that a claimant who has not filed suit has a substantive right to the maintenance of the statute of limitations in force at the time the claim occurred. Our attention has also been directed to cases in which statutes of limitations, or similar statutes, have been held to run against minors. The plaintiffs reply that the statutes the defendants cite are special statutes, not applicable to common law remedies.

The plaintiffs in McLeran v. St. Louis Children’s Hospital also argue for the application of Section 1039, RSMo 1939, a section which has not reappeared in future revisions. They cite Telaneus v. Simpson, 321 Mo. 724, 12 S.W.2d 920 (Mo.1928). The defendants in McLeran argue that Section 1039 was a statute of limited application, which has no present effect and was properly dropped from future statutory revisions. We find it unnecessary to resolve the point.

The authorities cited in footnote 2 hold that statutes of limitations are procedural and that there is no vested right in the maintenance in force of the statute in effect when the claim accrued. It is possible to shorten the statute of limitations applicable to an existing claim. If any such attempt is made, however, those who have pending and unbarred claims at the time the new statute becomes effective must be afforded a reasonable time within which to file suit.

Section 516.105 does not say expressly whether it applies to claims which existed at the time it was adopted. If it does it would apply, by its terms, to the claim of a boy injured before he was 8 years old, and who reached his 10th birthday the day after the statute became effective. It would apply to the claim of a child over the age of 10 at the time of an injury due to malpractice if the alleged malpractice occurred one day short of two years before the effective date of the statute. We do not believe that the legislature had any purpose of barring claims such as those just described.

The defendants realize that there is a problem in the exaggerated situations just described, and ask the Court to solve it by holding that the bar of the statute should be applied to a plaintiff such as the one now before us, who has two full years after this 10th birthday, and after the effective date of the statute, within which to file suit. To so hold we would have to add something to the statute which simply is not there. Had the legislature intended to add saving language, it had many available models. It did not use them.

In Re Estate of McMahon, 506 S.W.2d 389 (Mo.1974), demonstrates a method of applying a shortened statute of limitations to existing claims, while still affording claimants reasonable opportunity to file suit. The legislature postponed for one year the effective date of a statute shortening the limitation period from ten years to five. One who had an existing claim, then, had a whole year within which to file suit without regard to the provisions of the new statute. No such expedient was utilized in § 516.105.

We conclude, therefore, that § 516.105 should be applied only to claims accruing after its effective date. By this analysis, the plaintiff’s suit was timely filed.

We do not reach the constitutional questions presented by the plaintiff, as to whether the statute of limitations on a common law claim may validly be applied against a minor.

The judgment is reversed and the case is remanded for further proceedings.

RENDLEN, C.J., HIGGINS, BILLINGS and DONNELLY, JJ., and MORGAN, Senior Judge, concur.

WELLIVER, J., dissents in separate opinion filed.

GUNN, J., not sitting.

WELLIVER, Judge,

dissenting.

I respectfully dissent.

The law is settled, as the principal opinion correctly observes, that statutes of limitations are procedural in nature. Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852 (1944). The law is equally clear that statutes affecting procedure are presumed to apply retroactively unless a contrary intention is expressed by the legislature. Scheidegger v. Greene, 451 S.W.2d 135, 137 (Mo.1970); State ex rel. Clay Equipment Corp. v. Jensen, 363 S.W.2d 666, 669 (Mo. banc 1963). This rule applies to laws that shorten the statute of limitations applicable to an existing cause of action, provided that a reasonable period of time is permitted to bring the action. Rabin v. Krogsdale, 346 S.W.2d 58, 60 (Mo.1961); Hartvedt v. Maurer, 359 Mo. 16, 220 S.W.2d 55, 58 (1949). Applying these rules of construction, every person who had an unfiled medical malpractice claim at the time § 516.105, RSMo 1978, went into effect has two years from the effective date of the statute or until his or her twelfth birthday, whichever occurs last, in which to bring the action. To hold otherwise, as the principal opinion does, is to deny the retroactive application of this procedural statute and to tacitly overrule existing law.

      . We need not determine whether the constitutional points were properly raised and preserved.

      . Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852 (Mo.1943); State ex rel. Research Medical Center v. Peters, 631 S.W.2d 938 (Mo.App.1982); Rincon v. Rincon, 571 S.W.2d 475 (Mo.App.1978).

      . Pittman v. United States, 341 F.2d 739 (9th Cir.1965); Brown v. United States, 353 F.2d 578 (9th Cir.1965); Lametta v. Connecticut Light and Power Co., 92 A.2d 731 (Conn.1952). They also adduce Frazee v. Partney, 314 S.W.2d 915 (Mo.1958), dealing with the wrongful death statute and Clarke v. Organ, 329 S.W.2d 670 (Mo. banc 1959), dealing with the probate non-claim statute, in support of their position.

        .See In Re Estate of McMahon, 506 S.W.2d 389 (Mo.1974); Hartvedt v. Mauer, 220 S.W.2d 55 (Mo.1949); Wentz v. Price Candy Co., supra note 2.


source: Caselaw Access Project

author: BLACKMAR, Judge.

license: Public Domain

text:
    Lora McLERAN, a minor By and Through her mother and next friend, Christine J. McLERAN, Appellant, v. ST. LUKE’S HOSPITAL OF KANSAS CITY, Respondent.
    No. 66275.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.

      Ed Dougherty, G. Spencer Miller, Kansas City, for appellant.
    John P. Poland, Don B. Robertson, Kansas City, for respondent.
   BLACKMAR, Judge.

The plaintiff was born April 7, 1971. She filed suit on July 12, 1982, through her mother as next friend, alleging that she had suffered damage because of her negligent care and treatment by the defendant hospital between the time of her birth and April 18, 1971.

The defendant moved to dismiss, arguing that her claim was barred by the provisions of § 516.105, RSMo 1978, which became effective August 13, 1976. The trial court sustained the motion. The Court of Appeals, Western District, reversed and remanded. We granted transfer and considered the case together with Goodman v. St. Louis Children's Hospital, 687 S.W.2d 889, decided today. The holding in Goodman mandates reversal and remand in this case.

There is another reason why this case must be reversed. Suit was brought within two years of the plaintiffs tenth birthday, and so the suit is timely even if § 516.105 applies, unless the last clause of the section imposes an absolute bar of ten years, so that this plaintiff would be absolutely barred unless she filed suit within 11 days after she reached her tenth birthday. We believe that the legislature, in seeking to run the statute of limitations against infants, intended that all infants have a full two years after the 10th birthday within which to file suit. The ten years maximum was designed to limit the “foreign object” exception to the two year statute, and not to limit the time within which an infant who suffers damage from malpractice within his or her first two years may file suit. Under the statute as just construed, the plaintiff’s claim is timely.

The plaintiff alleges unconstitutionality. A challenge to the validity of a statute is inconsistent with the prosecution of an appeal to the Court of Appeals, for if the validity of a statute is challenged we have jurisdiction over the entire case. Cf. State ex rel. Union Electric Company v. Public Service Commission of the State of Missouri, et al., (Mo. banc 1985). But, just as in Goodman v. Children’s Hospital, supra, we are able to decide this case without reaching the constitutional issues.

The judgment is reversed and the case is remanded for further proceedings.

RENDLEN, C.J., HIGGINS, BILLINGS and DONNELLY, JJ., and MORGAN, Senior Judge, concur.

WELLIVER, J., concurs in result.

GUNN, J., not sitting.


author: DONNELLY, Judge.

text:
    Iris HEMPEN, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 66144.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.
    Gerre S. Langton, Sam P. Rynearson, St. Louis, for defendant-appellant.
    Norman A. Seiner, Corey S. Berger, St. Louis, for plaintiff-respondent.
   DONNELLY, Judge.

Defendant State Farm Mutual Automobile Insurance Company appeals from a declaratory judgment in which the trial court found plaintiff, Iris Hempen, entitled to recover under the medical payments coverage in her State Farm policy insuring her 1969 Volkswagen. Plaintiff was injured while riding in a 1967 Chevrolet she owned jointly with her husband, Lloyd H. Hempen, who was driving at the time of the accident. Both cars were insured by State Farm under separate but identical policies providing “medical payments coverage” in the amount of $5,000. The parties stipulated that plaintiffs injury-related medical bills exceeded $10,000. State Farm paid $5,000 on the Chevrolet policy, but refused payment under the Volkswagen policy. The issue before this Court is whether plaintiff, who owned, either alone or with her husband, both cars and purchased coverage in separate but identical policies, may stack the medical payments coverage in the Volkswagen policy upon that in the Chevrolet policy.

When there is no statute or public policy requiring the inclusion of coverage in an automobile policy, the insured and insurer are free to define coverage by their agreement. Douthet v. State Farm Mutual Automobile Ins. Co., 546 S.W.2d 156, 157 (Mo. banc 1977). Unless policies are ambiguous, they must be enforced by the courts as written. Farm Bureau Town & County Ins. Co. of Missouri v. Hughes, 629 S.W.2d 595, 598 (Mo.App.1981).

In Cameron Mutual Insurance Co. v. Madden, 533 S.W.2d 538 (Mo. banc 1976), we considered the question of stacking medical payments coverage when a single policy insured two automobiles and contained no language preventing such stacking. The single policy was ambiguous as to how the medical payments provisions were to apply with respect to the multiple vehicles. We held such provisions to apply separately and individually to each rather than on a blanket or unified basis. This was a consequence of the effect of the separability clause in the policy, the payment of two separate premiums as if separate policies had been issued, and the fact that the insurer could have limited coverage by so stating in clear and unambiguous language. Accordingly, we held that absent language specifically prohibiting such a result, each separate premium paid for specified medical payments coverages produces for the insured that much additional protection for medical expenses incurred in a covered accident.

In this case, however, the vehicles were insured in separate policies. The Madden ambiguity, which resulted from insuring multiple vehicles in a single policy, is not present. Rather, the relevant portions of each policy unambiguously limit medical payments coverage to injuries caused by the specific vehicle covered by the policy. Thus, the medical payments section in each policy states (emphasis in the policies, indicating defined terms):

We will pay medical expenses for bodily injury sustained by:
1. a. the first person named in the declarations,
b. his or her spouse; and
c. their relatives.
These persons have to sustain the bodily injury:
a. while they operate or occupy a vehicle covered under the liability section, or
b. through being struck as a pedestrian by a motor vehicle or trailer.

The liability section contains this statement:

We will:
1. pay damages which an insured becomes legally liable to pay because of:
a. bodily injury to others, and
b. damage to or destruction of property including loss of its use, caused by accident resulting from the ownership, maintenance or use of your car;

The definition page of the policy defines “your car” as “the vehicle described on the Declarations Page.” The declarations page of the Volkswagen policy describes the 1969 Volkswagen; that of the Chevrolet policy the 1967 Chevrolet.

The Volkswagen policy contains the coverage plaintiff seeks to be stacked. When these sections of the Volkswagen policy are read together and applied to plaintiffs circumstances, they provide only that the insurer will pay reasonable medical expenses for injuries sustained by the plaintiff that were caused by accident resulting from ownership, maintenance or use of the 1967 Volkswagen. Because the Volkswagen was not involved in the accident, plaintiff is entitled no medical coverage under this policy.

Moreover, Madden provides that a policy may clearly and explicitly spell out the intention to limit liability to single coverage and thus foreclose stacking. Here, the following portion of the medical payments section of the Volkswagen policy clearly expresses the intention to limit coverage to injuries caused by the insured vehicle or vehicles:

THERE IS NO COVERAGE:
4. FOR MEDICAL EXPENSES FOR BODILY INJURY:
a. SUSTAINED WHILE OCCUPYING OR THROUGH BEING STRUCK BY A VEHICLE OWNED BY YOU, YOUR SPOUSE, OR ANY RELA TIVE, WHICH IS NOT INSURED UNDER THIS COVERAGE; * * *

Plaintiff contends that “this coverage” does not clearly and explicitly refer to the Volkswagen policy, and that if that were the intention, another expression such as “this policy” should have been used. We regard the language used to be sufficiently unambiguous as a matter of contract as to preclude our interference. See Hughes, supra, 629 S.W.2d at 597.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.


author: HIGGINS, Judge.

text:
    In re The 1984 BUDGET FOR the CIRCUIT COURT OF ST. LOUIS COUNTY, Missouri, ST. LOUIS COUNTY, County Executive Gene McNary and Members of the St. Louis County Council, Petitioners, v. Shulamith SIMON, Godfrey P. Padberg, et al., Intervenors-Respondents.
    No. 66127.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.

      Thomas W. Wehrle, Christopher J. McCarthy, Clayton, for petitioners.
    Shulamith Simon, Mark G. Arnold, God-frey P. Padberg, Michael J. Coleman, St. Louis, for intervenors-respondents.
   HIGGINS, Judge.

Petitioners St. Louis County, County Executive Gene McNary, and members of the County Council seek review of the Commission’s decision that the County is obligated to pay attorneys’ fees incurred by respondent Twenty-First Judicial Circuit of St. Louis County, the Circuit Court of St. Louis County, and respondent Judge William M. Corrigan, in defense of two federal civil rights actions. Intervenors-respon-dents Shulamith Simon and Mark Arnold of the firm of Husch, Eppenberger, Donohue, Elson & Cornfeld, and Godfrey Padberg of the firm of Padberg, McSweeney, Slater & Merz, represented the Circuit Court and Judge William M. Corrigan in the actions. The decision of the Commission is affirmed.

In its 1984 budget, the Circuit Court requested, and the County declined to provide, the following items: funding in the amount of $55,603.02, for payment of the Circuit Court’s attorneys’ fees in the cause styled Kathleen Marafino v. Circuit Court of St. Louis County, 537 F.Supp. 206 (E.D.Mo.1982), aff'd, 707 F.2d 1005 (8th Cir.1983); funding in the amount of $44,-254.22 for the payment of the Circuit Court’s attorneys’ fees in the cause styled Mary Susan Goodwin v. William M. Corrigan, et al., 555 F.Supp. 658 (E.D.Mo.1982), aff'd in part and vacated in part, 729 F.2d 541 (8th Cir.1984), and; funding in the amount of $26,613.95 for the payment of the attorneys’ fees of Judge William M. Corrigan, separately named as a defendant in the Goodwin case.

The Marafino case sought relief against the Circuit Court in its official capacity and against St. Louis County. The specific relief prayed included back pay, attorneys’ fees, and an order requiring defendants to employ plaintiff as a staff attorney in the Juvenile Court. The Circuit Court retained Shulamith Simon and the firm of Husch, Eppenberger, Donohue, Elson & Cornfeld as its counsel. St. Louis County adopted the brief prepared by that law firm for the Circuit Court on appeal. The County’s attorney was present during the trial, but the Circuit Court’s attorney handled the trial. The County rejected an out-of-court settlement in the Marafino case. The District Court entered its judgment in favor of defendants and the United States Court of Appeals for the Eighth Circuit affirmed.

The Goodwin case sought relief against Judge William Corrigan individually and against the Circuit Court in its official capacity. The specific relief sought included attorneys’ fees and an order reinstating plaintiff as a hearing officer in the Juvenile Court; her job had been eliminated during the 1979-1980 court reorganization and she had been reassigned. The court sustained the motion to dismiss of St. Louis County, originally a separate defendant in the case, and it was named later as a defendant on a third party complaint filed by the Circuit Court seeking indemnification for any monetary award entered against the Circuit Court. The St. Louis County Counselor entered his appearance for St. Louis County, the Circuit Court and Judge Corrigan, then subsequently withdrew as attorney for the Circuit Court and Judge Corrigan. The County Counselor advised the Circuit Court that the County would not pay a judgment entered against the Circuit Court or any judge of the Court in the Goodwin case. The Circuit Court retained Shulam-ith Simon and the firm of Husch, Eppenber-ger, Donohue, Elson & Cornfeld to represent the Circuit Court, in its official capacity, in defense of this action. Because the Attorney General informed Judge Corrigan that his office could not represent him, Judge Corrigan retained Godfrey Padberg and the firm of Padberg, McSweeney, Slater & Merz to represent him individually in the Goodwin case. The suit consisted of a Title VII Count which was heard by the judge and a section 1983 Count which was tried before a jury. The jury found in favor of the plaintiff and against defendant Corrigan. The District Court subsequently issued its judgment, finding in favor of plaintiff and against the Circuit Court, and finding in favor of the Circuit Court on its third party complaint against St. Louis County. On appeal to the United States Court of Appeals for the Eighth Circuit, the court found in favor of plaintiff and against defendant Corrigan but remanded the claim against the Circuit Court and the County to the trial court for reconsideration of the proper allocation of burden of proof. On remand, the District Court again entered judgment for plaintiff, and on the second appeal, the Eighth Circuit upheld the finding of the District Court and held that the County was required to pay the judgment against the Circuit Court on the Title YII claim. 741 F.2d 1087 (8th Cir.1984), cert. denied, Corrigan v. Goodwin, — U.S. —, 105 S.Ct. 112, 83 L.Ed.2d 55 (1984), and cert. denied, St. Louis County v. Circuit Court of Twenty-First Judicial Circuit, — U.S. —, 105 S.Ct. 1194, 83 L.Ed.2d 339 (1985).

The County did not receive the actual bills for the attorneys’ fees in question, but did receive a budget request for payment of the fees; it did not request from the Circuit Court additional documentation for the budget request for attorneys’ fees. Shulamith Simon and the firm of Husch, Eppenberger, Donohue, Elson & Cornfeld have previously represented the Circuit Court in matters involving budget disputes with St. Louis County and the right of control over the employees and facilities of the Juvenile Court. In each of these prior instances, the bills submitted by counsel were paid by St. Louis County.

In this instance, St. Louis County filed a complaint with the Judicial Finance Commission, seeking a determination that the County is not obligated to provide funding for the requested attorneys’ fees. After an unsuccessful settlement conference held pursuant to section 50.640.2, RSMo Cum. Supp.1984, the Commission held a hearing and issued findings of fact and conclusions of law. The Commission held that the fees for legal representation are a reasonably necessary expenditure of the Circuit Court which the County must fund; petitioners filed this petition for review.

Petitioners contend the Commission erred in holding that respondents demonstrated the reasonableness and necessity of the budget requests because the attorneys’ fees in question are not expenditures the County is legally obligated to pay under section 476.270, RSMo 1978; payment, if forthcoming, is an obligation of the state; payment of the attorneys’ fees is a state mandated increase in the level of activity, or is a new activity, required of the County for which the state has not appropriated funds necessary to provide the activity, as required by Mo. Const, art. X, § 21 (the Hancock Amendment); the Commission is without authority to fund the requested “increase” because its order contravenes Mo. Const, art. X, § 21; respondents failed to comply with the law governing contracts with the County and to seek authorization for the expenditures by conventional means; and, the amounts charged are excessive and unreasonable. Petitioners further contend that payment of Judge Corri-gan’s fees constitutes a personal benefit to him that conflicts with the requirement that the County exercise its taxing authority only for public, county purposes and the prohibition contained in Mo. Const, art. VI, § 25, against grants of public funds to private individuals.

In reviewing the decision of the Judicial Finance Commission, this Court considers the role of the Commission as prescribed by the legislature. The General Assembly created the Commission in 1982 and empowered it to resolve budget disputes between counties and circuit courts. In re The 1983 Budget for the Circuit Court of St. Louis County, 665 S.W.2d 943, 944 (Mo. banc 1984). Pursuant to section 477.600.7, RSMo Cum.Supp.1984, this Court reviews the decision of the Commission de novo, but accords its conclusions regarding reasonableness of circuit court expenditures that degree of deference due in view of its legislative genesis and statutory functions. Bosley v. Berra, 688 S.W.2d 353 (Mo. banc 1985).

The record supports the determination of the Commission that the attorney’s fees incurred by the circuit court in its official capacity in Marafino and Goodwin are a reasonably necessary expenditure of the court. Section 476.270, RSMo 1978, provides that “[a]ll expenditures accruing in the circuit courts ... shall be paid out of the treasury of the county in which the court is held_” Under judicial interpretation of this provision “expenditures” means lawful expenditures, defined as follows:

1. Those the General Assembly has fixed by statute or absolutely reposed in the court’s discretion.
2. Those the local government unit ..., which is required to provide the funds to meet such expenditures, may have authorized previously, with or without request.
3. Those reasonably necessary for the court to carry out its functions.

State ex rel. Judges for the Twenty-Second Judicial Circuit v. City of St. Louis, 494 S.W.2d 39, 41 (Mo. banc 1973). The attorneys’ fees in question come within 2. and 3. above.

The County has a history of paying attorneys’ fees to intervenor Simon and the firm of Husch, Eppenberger. State ex rel. Judges for the 21st Judicial Circuit v. St. Louis County, 603 S.W.2d 545 (Mo. banc 1980); In re 1980 Budget of Circuit Court of St. Louis County, 601 S.W.2d 10 (Mo. banc 1980); In re 1979 Budget of Juvenile Court of St. Louis County, 590 S.W.2d 900 (Mo. banc 1979); State ex rel. St. Louis County v. Edwards, 589 S.W.2d 283 (Mo. banc 1979); In re 1976 Budgets of Circuit Court, et al., Nos. 59, 426 (Mo. banc 1976). Both actions arose from the exercise of judicial discretion in connection with the official administrative duties of the judges, and challenged control of the juvenile court by the circuit court. This Court previously recognized the importance of control over juvenile court employees to the administration of justice. State ex rel. St. Louis County v. Edwards, 589 S.W.2d 283, 289-290 (Mo. banc 1979); State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99, 102 (Mo. banc 1970). The expenditure for fees incurred in defense of these actions was reasonably necessary for the court to carry out its functions.

The County cannot avoid its obligation to fund these expenditures by arguing that payment is an obligation of the state. The State Legal Defense Fund, section 105.711, RSMo Cum.Supp.1984, became effective September 28, 1983, after inter-venors rendered the services for which the instant funding request was made. Petitioners also cite section 478.023, RSMo Cum.'Supp.l984, in support of their contention that the state must pay the attorneys’ fees in question. Section 478.023 authorizes state payment of only “salaries and expenses herein provided for” circuit judges; the section has no application here, particularly where a separate statute governs. § 476.270, RSMo 1978.

Article X, section 21 of the Missouri Constitution (the Hancock Amendment) provides in pertinent part:

A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the general assembly or any state agencies of counties or other political subdivisions, unless a .state appropriation is made and disbursed to pay the county or other political subdivision for any increased costs.

Petitioners characterize payment of the attorneys’ fees in question as a state mandated increase in the level of activity, or a new activity, imposed on the County for which the state has not appropriated funds necessary to provide the activity as required by the Hancock Amendment. Intervenors maintain the circuit court is not a “state agency” within the meaning of article X, section 21; they argue alternatively that payment of the fees does not constitute a new activity or an increase in the level of activity required of the County. The Commission agreed with the interpretation of intervenors on both issues.

Assuming the expenditure is an “activity,” it is not a “new or an increased level of activity.” It is therefore unnecessary to address whether the circuit court is a “state agency” within the meaning of the Hancock Amendment. That the County has appropriated funds for payment of private attorneys’ fees for the circuit court before and after adoption of the Hancock Amendment belies its contention that this is a new activity. Nor is payment of attorneys’ fees incurred in Marafino and Goodwin an “increase in the level of any activity or service.” Boone County Court v. State, 631 S.W.2d 321 (Mo. banc 1982), cited by petitioners, is inapposite. There, the General Assembly mandated an annual salary increase for county collectors whose salaries are paid by the county. As the Commission observed, “[ajdequate representation against legal attack may be more costly than in the past,” but the costs of representation in these two lawsuits arise from the ongoing operations of the circuit court and represent three items in a series of appropriations of funds when necessary for the legal defense of the court.

Petitioners’ claim that the Hancock Amendment prohibits the Commission from mandating payment from the County is without merit. The Commission correctly described its role: “to determine/by mediation or, if necessary, adjudication, the reasonableness of the disputed budget requests when the parties involved cannot reach agreement on that point.” §§ 50.-640.2 & 477.600, RSMo Cum.Supp.1984; In re The 1983 Budget, 665 S.W.2d at 944. The authority to mandate or compel payment lies with the courts. See State ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249, 255 (Mo. banc 1967), overruled on other grounds, State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. 1970).

Petitioners argue respondents failed to comply with the law governing contracts with the County and to seek authorization for the expenditures by conventional means. Intervenors answer that the County was not a party to the contracts. This Court agrees because intervenors entered into a contract for legal services with the circuit court and section 432.070, RSMo 1978, pertaining to contracts with the county, is not controlling. Petitioners cite County of St. Francois v. Brookshire, 302 S.W.2d 1 (Mo.1957). The circumstances of County of St. Francois distinguish it from the instant case, because there the attorney retained purported to represent the county. Petitioners do not define “conventional means,” and from the record in this case it appears respondents followed the procedure previously utilized to request payment of similar expenditures.

The last challenge to payment of the fees incurred in Marafino and Goodwin is an assertion that the amounts of the fees are excessive and unreasonable. The Commission noted that the County did not specifically object to the amount of the fees in the proceedings before the Commission, but that body heard testimony and accepted evidence supporting the amounts billed. The Commission also found that the attorneys adjusted the sums billed here to reduce the burden on the public clients. Absent any evidence to the contrary, the Court accepts that the fees charged for representation were not unreasonable or excessive.

The foregoing answers all but one of the arguments against payment of the attorneys’ fees of respondent Corrigan, sued individually in Goodwin. Petitioners contend that payment constitutes a personal benefit to respondent judge. Petitioners cite various provisions restricting the exercise of the County’s taxing authority to public, county purposes and prohibiting grants of public funds to private individuals. The strength of this contention depends upon whether respondent judge incurred the expenditures in the defense of allegations asserted against him in his judicial capacity.

In finding these expenditures proper expenditures of the circuit court, the Commission reasoned that Goodwin involved reassignment of a juvenile court hearing officer within the court system. “Traditionally, judges have shouldered the responsibility of appointing and removing officers whose existence is necessary to the court.” Under Missouri law, personnel decisions regarding court staff involve the exercise of judicial discretion. Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868, 872 (1955). See State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99, 101-102 (Mo. banc 1970). The Court agrees with the determination of the Commission that expenditures arising from a lawsuit that results from the exercise of judicial authority and discretion are proper expenditures of the circuit court, incurred on behalf of the court and not merely a personal benefit to the judge.

Particularly because there is no record of prior payment to intervenor Padberg and the firm of Padberg, McSweeney analogous to the past appropriations for intervenor Simon and Husch, Eppenberger, it could be argued that respondents should have made earlier efforts to persuade the County of the reasonableness of this budget request; this is true notwithstanding intervenors’ position that any effort would have been futile. Three factors attending this budget request nevertheless support affirmance of the conclusion reached by the Commission that the request was a reasonably necessary expenditure of the court. First, the County, originally a named defendant in Goodwin, was on notice as to the existence of the action and the withdrawal of the County Counselor as attorney for respondent Corrigan. Second, the Commission recognized the adversary relationship between respondent judge and the County that existed throughout this litigation and created a question of conflict of interest on the part of the County had it represented him. Third, the conflict of interest combined with the refusal by the Attorney General to undertake respondent judge’s defense led the Commission to conclude that alternative representation was not available to respondent. The Court agrees, deferring to the findings and conclusions of the Commission regarding the reasonableness and necessity of the request for private counsel fees.

Accordingly, the decision of the Judicial Finance Commission is affirmed.

All concur.


author: LOWENSTEIN, Presiding Judge.

text:
    Dotte TROXELL, Appellant, v. Kenneth WELCH, Respondent.
    No. WD 35590.
    Missouri Court of Appeals, Western District.
    Jan. 2, 1985.
    Rehearing Denied March 5, 1985.

      Bernard E. Brown, Kansas City, for appellant.
    W.R. Schelp, Lexington, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Presiding Judge.

Appellant, Dotte Troxell, and respondent, Kenneth Welch, own adjoining farms near Lexington, Missouri where both raise cattle. The facts and history of this litigation are very confusing. This preliminary overview is presented before the individual points of error are attempted to be dealt with. In October 1974 the parties entered into an oral contract to combine their herds for breeding purposes. Troxell would be responsible for the care and management of the entire herd, with Welch paying for expenses relating to his cattle plus being responsible for cutting and baling Troxell’s alfalfa. Troxell’s payment was her getting the pick of one-half the calf crop. In the spring of 1976, Troxell informed Welch she wished to terminate the agreement. On May 8, 1976 the herds were split and sent into separate pastures. However, some of Welch’s cattle were still carrying calves that could not be divided until November 1976. Troxell also allowed her bulls to run with Welch’s herd until July 1976.

At this juncture some procedural facts must be interjected. Troxell’s first petition was filed in April, 1977. In it were basically three causes of action: breach of contract, trespass, and conversion. Despite some ten settings between December of 1979 and June, 1982, the case made little progress until five years later, when, on July 12, 1982, new counsel entered his appearance for Troxell. Leave was subsequently granted and on November 14, 1982 Troxell filed a First Amended Petition. The original petition was 2½ pages and contained three points. The amended petition had six counts and covered some six pages. Ultimately the trial ruled in favor of Welch’s motion to strike numerous counts and paragraphs of the amended petition, so the case went to trial on breach of contract and conversion, with trespass being limited to events occurring after December 2, 1976.

As to the breach of contract claim, Tro-xell testified that Welch owed her $2,808.27 for medicine, food, and other expenses relating to his cattle that he had never paid. Welch claimed that Troxell charged her costs to the various businesses, which in turn billed him directly; the understanding did not include these extra expenses.

The evidence on the conversion claim consisted of Troxell testifying that on August 9, 1976 some 16 cows were stolen from her property, and wound up in Welch’s barn. She did not see the perpetrator, but assumed it was Welch. One cow, 1C15, returned but on August 15 it was stolen again, and this time Troxell claimed she saw Welch do it. Welch on the other hand produced evidence which put him in Washington, D.C. for navy reserve training on those dates.

Count I (Trespass)
From and after May 10, 1976, Welch permitted his cattle to cpme on her land and damage crops.

The trespass cause of action was basically eliminated when Troxell stipulated that she had no claims for damages after December 2, 1976. She was not allowed to testify as to damages incurred during the summer of 1976 because the trial court decided a release form that Troxell signed on December 2 covered all earlier damages.

The jury found for Welch on the two submitted causes of breach of contract and for conversion. It is from this verdict and the court’s striking most of her count on trespass damages that Troxell appeals.

I.

As presented Troxell’s first point is practically incomprehensible. She basically contends error was committed when her amended petition suffered major deletions because of statute of limitations questions and because of accord and satisfaction. The limitation issue pivots upon the interpretation and application of Rule 55.33(c) which states in pertinent part: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

Paraphrased as well as can be done, Tro-xell’s first attorney filed a petition, now admitted to be “hazy,” on April 18, 1977 which appears below on the left. On the right, paraphrased is the amended version, filed with leave on November 16, 1982. The portions stricken on February 8, 1983, are bracketed:

[Patrick E. Welch, Inc., was also named as a defendant, and that Welch was acting on its behalf.]
Count I (Contract)
1. The contract for cows and breeding provided: a) Troxell was to care for both herds; b) [Troxell’s bulls were to be bred with Welch’s cattle and she was to receive ½ the crop]; c) Welch was to
(Conversion)
On August 9, 1976 Welch came over and took her cow marked 1C15, valued at $1500. She asked for $1500 under this count.
Count II (Contract)
In 1974 they entered an oral contract where she would care for his cattle at his expense and she was to get lh the calf crop. The agreement was terminated on May 10, 1976, at which time she had $2000 in expenses for his cattle. The prayer was for $2000.
Count III
(Trespass)
The “entering” and
(Conversion)
“removing” of cattle (punitive damages) by Welch called for punitive damages of $100,000.
bear the expenses for his cattle; d) [Welch represented his herd to be excellent for breeding].
2. [Because he stripped his herd of breeding cattle she did not recover $28,904 in calf crops].
3. [Instead of ½ she only got ¼ of the resulting calf crops].
4. Her expenses for his herd (Count II other side) were $3,146.
5. [His cattle were in poor condition, reducing the calf crop and harming her cattle — $16,204].
Count II
(Trespass)
1. [Prom and after May 10, 1976, Welch permitted cattle to come on her property in violation of Chapters 270 and 272 RSMo].
2. $10,192 in damages caused by cattle. (Court allowed only for damages after December 2, 1976).
3. [She had expenses and her labor of repairing fences and “conferring with law enforcement authorities” of $1,158].
4. [Harm to her cattle from his of $32,500.
5. & 6. Troxell dismissed these portions for personal injuries to her amounting to $15,000.
Count III
1-4 [Asked for $100 for care of his cattle she had impounded as a lien, between August 7 and August 10 (270 and 272 RSMo.) prior to his retaking them.
Count IV
1-5 [Similar to Count III, above, except for damages between August 11 and August 23, 1976].
Count V
(Conversion)
1-3 [“on at least one occasion in August, 1976,” Welch “removed cattle of Troxell. Damages of $4,350.”] Because of conversion portion in Count I of the original petition, everything was struck except for the one cow on August 9.
Count VI — Punitive Damages
(Conversion)
1-4 is allowing cattle to trespass, and in his trespass [and conversion of impounded cattle] caused her mental anguish to the extent of $500,000.

The judge who presided at trial did not rule on the pre-trial motions. The events for which she sought damages occurred in 1976. The first petition came in 1977, the amended petition in 1982, and trial took place in October 1983. The parties agree § 516.120 RSMo 1978 applies to impose a 5 year statute of limitations on the claims. Again, the claims of Troxell, as noted marginally in the deciphered accounts of the petitions, fall into the categories of breach of contract, trespass and conversion.

I.

The effect of the release will first be addressed. It covers the trespass aspect of the case. On December 2, 1976 Troxell executed, in consideration of $2850, a release of Welch of all claims “which (she now has ... growing out of the trespass ... of ... cattle ... including ... personal and property damage ... from the events which occurred on or about the 20th day of July, 1976.” The document went on to provide it was not to release Welch of any claims by Troxell for breach of contract or conversion of property. By allowing Tro-xell to present evidence on damages only after the date of the release, the result was, in effect, the striking of this whole count since any damage was confined in the period of May 10 through October at the latest. In her offer of proof on trespass she noted specific dates starting on June 2 and extending to August 29th, or even into “September or October.”

The court’s reliance on the date of execution of the contract as releasing all damages to that date was misplaced. Why Troxell waited until December 2 to sign the release, like so much here, is a mystery. The specific language of the release shows an intent to only provide accord and satisfaction of a trespass of cattle on or about July 20, despite the caption “Release of all Claims.” Welch cannot prove by the instrument’s language a release general in nature as to all claims. State ex rel. Normandy Orthopedics v. Crandall, 581 S.W.2d 829, 834 (Mo. banc 1979). The intent of the parties is governed by the language of the release. State ex rel. Stutz v. Campbell, 602 S.W.2d 874, 876 (Mo.App.1980). Here the specific language limits the release to on or about July 20, 1976, so any general language of the release is to be in subordination to the specific language. Holly Inv. Co. v. Land Clear. For Redev. Auth., 646 S.W.2d 126, 129 (Mo.App.1983). Troxell should have been allowed to present evidence as to the cattle trespass damages from and after May 10, 1976 but no later than October 1, 1976 under paragraph 2 of Count II. Since she was allowed to present no evidence on this matter, the jury was never instructed to decide on this issue. This portion of the judgment is reversed with remand for trial on those trespass claims in the amended petition up to the pleaded amount of $10,-192.22. Welch must derive some benefit from the release. That had no further confusion — the release says on about July 20, but the offer names only the 17th and 23rd of July. Unless on re-trial Troxell can show an incident on July 20, the court may treat the release as covering the 17th and 23rd of July, 1976.

This leads to a determination on the rest of Count II as well as the other portions stricken on the theory of not relating back so as to avoid the running of the 5 year statute of limitations. Rule 55.33(c) was effective September 1, 1973. This rule is the same word for word as Rule 15(c) of the Federal Rules of Civil Procedure, the essence of which is to avoid limitations problems. The claim must arise out of the conduct, transaction, or occurrence set forth or attempted to have been set forth in the original pleading. As can he here noted, the amended petition in Count II, all after 5 years, adds new factual situations and alleges different damages, such as paragraph 3, for her “labors,” and paragraph 4 for health damage to her cattle from his cattle. Likewise, the counts on conversion and breach of contract added new factual situations, on new dates for which Troxell claimed damages. These damages added up to more than originally pleaded, and apparently gave rise to her asking for more in punitive damages. The question is, should any or all the newly pleaded matters relate back?

The ground rules for such a determination are in doubt. Prior to Rule 55.33(c), case law governed relation back and limitations problems. Two Supreme Court cases, Miller v. Werner, 431 S.W.2d 116 (Mo.1968), and Laux v. Motor Carriers Council of St. Louis, Inc., 499 S.W.2d 805, 807 (Mo.1973), typified the doctrine. They stand for the propositions: 1) that a plaintiff who pleads one theory and then attempts to change the theory, may not do so but is barred by the statute of limitations; 2) an amendment is to cure a lapse in the statement without a change in the original case, and; 3) whether the same evidence would support both petitions and the same measure of damages apply to both. Cases from this court, as recently as 1982 draw from Miller and Laux, supra, and reiterate that if the amended pleading requires proof of ultimate facts other or different from which could support the first, the statute acts as a bar. Welch v. Continental Placement, Inc., 627 S.W.2d 319, 321 (Mo.App.1982); Cress v. Mayer, 626 S.W.2d 430, 436 (Mo.App.1981); Briggs v. Cohen, 603 S.W.2d 20, 22 (Mo.App.1980). Under these cases, all of Troxell’s claims stricken were done so properly. For example, under the trespass count she sought to expand from damage to crops and fences the value of her labor in conferring with law enforcement officers, in the contract area she went from asking $2000 for unreim-bursed expenses to $51,479 in the amended petition which included losses for his cows being unhealthy and that he had stripped his herd of cows that could produce a calf crop. The evidence to support her original petition would not support what she sought to add by amendment.

The rub comes because of cases from the eastern district which say pleadings are not an end in themselves but are to assist in the disposition of suits on their merits and the federal rule has been interpreted to allow relation back if the petition gives sufficient notice of the transaction to the defendant. Hawkins v. Hawkins, 533 S.W.2d 634, 638 (Mo.App.1976). In Scott v. Gibbons, 611 S.W.2d 387, 397 (Mo.App.1981) a fourth amended petition by land purchasers was allowed to relate back because it asserted claims which grew out of the same transaction. In Hawkins the court says the adoption of Rule 55.33(c) was meant to change the same evidence test of Miller, supra. Id. at 538. The following cases are explanative of the federal rule: Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973), (where the parties are the same, the better rule is that additional claims arising out of the same transaction or occurrence relate back, the main tests are notice and substantial prejudice to the defendant); Brown v. Providence Gas Co., 445 F.Supp. 459, 463 (D.R.I.1976), (Purpose of 15(c) is to ameliorate harsher aspects of limitations periods when no surprise or prejudice and once litigation has commenced on a “particular occurrence,” the parties are no longer entitled to protection of limitations statutes.); Goodman v. Poland, 395 F.Supp. 660, 684 (D.M.D.1975), (liberal spirit of federal rules allows additional claim out of same transaction); Zagurski v. American Tobacco Co., 44 F.R.D. 440, 442 (D.Comm.1967), (claims and theories can be added from original facts); Marinari v. Dunleavy, 86 F.R.D. 127, 130 (E.D.Pa.1980), (plaintiff can urge a new and different claim, or even a different interpretation of the facts while still alleging the same facts without a bar).

The amended petition when examined in light of the federal cases interpreting 15(c) takes on a different complexion. However, even under the liberal interpretation of the federal rule, there must be a limit. The general fact situation in Troxell’s amended petition on the conversions of large numbers of cattle (Count IV paragraph 3) is new and expands those facts pleaded in Count I paragraph 4 of the petition which allege one conversion of one cow on August 9, 1976. See De Malherbe v. International Union of Elevator Constructors, 449 F.Supp. 1335 (N.D.Cal.1978).

Also, under the theme of adequate notice to the defendant of the general fact situation in the original complaint, or that “substantially overlapping occurrences” are present in both petitions, De Malherbe, supra, 1353-4, Count I paragraph 4 cannot be permitted. This is an entirely new fact situation that appeared in the amended petition. Welch could not have been on notice that he should prepare for an allegation that he only permitted her to get lh of the calf crop instead of ½.

This seems to be the unique problem in this case — the causes of action have not been switched or expanded, but the facts giving rise to the three theories of recovery have been expanded. Instead of the rustling of one cow on one date, the amended petition for the first time, over 6 years after the petition, brings up another occurrence 6 days distant from the first on which a large number of livestock were alleged to have been taken. Although this was a turbulent 3 months or so, Welch cannot be expected to be prepared for litigation of every conceivable fact situation out of this time period, even though un-pleaded originally.

Therefore, under the relation back interpretations of the eastern or western districts, the portions struck under the contract theory were done so correctly. The stripping of the herds, their unhealthy condition, and the uneven split of the crop should have been excised. Although it could be said these events arose out of the same “conduct” or “transaction” under 55.-33(c), they do not allege a different interpretation of the facts, or allege the facts give rise to a different claim, but instead bring in new facts, new events and new occurrences, that were not noticed to the defendant by the original pleadings. These events could not relate back to avoid the statute.

As to the conversion aspects of the case, suffice it to say Troxell had her day in court on the one item initially pleaded. She was allowed to amend to conform to the evidence to ask for $15,000 for the damage of August 9. That one head was stolen on a date does not provide notice of larger thefts on other dates. The additional thefts alleged simply will not relate back under either theory.

The remaining matter is what will be allowed in on retrial of the trespass count. (Count II, paragraphs 1-4). Under either interpretation, paragraph 4, that Welch’s herd harmed Troxell’s herd, will not be allowed to relate back. Neither will paragraph 3, that seeks to reimburse Tro-xell for her time expended including conferring with law enforcement persons, be allowed to relate back. Paragraph 1 should not have been stricken, as it reiterates from the first petition the fact that the trespasses started on May 10. On retrial Troxell will be permitted to use this starting date.

The remaining part of this point, where Troxell also sought in the amended petition to add a party, Patrick E. Welch, Inc., is, ruled against her.

II.

Troxell’s next point arises out of the judge’s ruling a 10 minute limit on her redirect examination. The court noted the disarray of the organization and presentation of her case. Her direct testimony took approximately four hours. The court’s action in limiting redirect was not an abuse of discretion. State v. Griffin, 497 S.W.2d 133, 136 (Mo.1973).

III.

Troxell asked for a new trial because one of her subpoenaed witnesses, Martha Brunner, did not appear during trial. No request for a recess or continuance was made. She contends case law prior to the present Rule 78.01 on the granting of a new trial dictates a new trial on this point. Relying upon Hamm v. Hamm, 437 S.W.2d 449, 453 (Mo.App.1969), she claims “surprise” because her witness forgot to attend when subpoenaed. This point is denied.

IY.

Troxell contends that the trial court should have granted a default judgment because Welch failed to file a responsive pleading in answer to her amended petition within the ten days prescribed by Rule 55.33(a). This is read in conjunction with Rule 74.045 which says a court shall grant a interlocutory judgment on default if the defendant fails to file a required pleading.

While this court does not encourage the trial court’s circumvention of the rules, it does not believe the trial court abused its discretion in granting Welch an extension of time sua sponte. Under Rule 44.01(b) a court may in its discretion enlarge any time for cause shown if a request is made before the original period expires. Clearly had Welch requested an enlargement of time, there was ample cause. Furthermore, judgments by default are not favored. Lambert Bros. Inc. v. Tri City Const. Co., 514 S.W.2d 838, (Mo.App.1974). Under Rule 74.05 a judgment may be set aside for good cause shown, if done before damages are assessed. Thus had the trial court strictly followed Rule 74.045, Welch could have had such judgment set aside. Troxell certainly was not injured by the enlargement of only 30 days or so when she had failed for over 5 years to pursue her case. Under the circumstances, the trial court reached a fair result — there was no reversible error committed on this issue.

Conclusion

It is hard to reconcile the adoption of the Rule, 55.33(c), with its clear language and numerous interpretations of the identical federal rule with a continuation of the “same evidence” rule set out previously by our supreme court. Comment, amendments to pleadings after the statute of limitations has run — A Change in Missouri, 40 Mo.L.Rev. 489 (1975). The rule is liberal in allowing an amendment after the statute has run to allow, new facts, new amounts of damages, and changes in theories of recovery. Why Missouri would have adopted such a rule and still cling to a more restrictive policy is hard to explain. In the abstract of philosophical and intellectual debate of which of the two should prevail, it is easy to light on one or the other. To this writer the federal and eastern district interpretation seems the most preferable. However, when these two interpretations of relation back are examined in the context of a factual situation like this one, (the highlight of this case came when according to the record, briefs and argument, Troxell shot one of Welch’s cows and dumped it on the courthouse steps), the distinctions start to blur. One is left with the impression it would just be unfair to allow this plaintiff many years, many trial settings, and many utilizations of discovery later, to bring up new incidents that happened so close in time and that so directly involved her.

In any event the supreme court should move to make clear what the law is on relation lack. Rule 55.33(c) and the eastern district say one thing, the Miller an Laux cases and their progeny say another.

The judgment is reversed only as to that portion which relates to Count II, paragraph 2, and is remanded to allow Troxell to plead and try her action for any trespass occurring on or after May 10,1976 through October 1976, but excluding any damages covered by the release. On retrial she shall be limited to $10,192.72 in actual damages as against Kenneth Welch. She shall also be allowed to amend her Count IV on punitive damages to be commensurate with the trespass claims to be tried, but in no event shall she be allowed to ask for more in punitive damages, $500,000, than she was allowed at the first trial. In all other respects the judgment of the trial court is affirmed.

All concur.


author: SIMON, Judge. SMITH, Judge, GAERTNER, Judge,

text:
    Cynthia J. BRICKNER, and Candace J. Brickner, a minor, By her mother and next friend, Cynthia J. Brickner, Plaintiffs-Respondents, v. NORMANDY OSTEOPATHIC HOSPITAL, INC., Defendant-Appellant.
    No. 47217.
    Missouri Court of Appeals, Eastern District, En Banc.
    Jan. 22, 1985.
    Order Feb. 19, 1985.
    Application to Transfer Denied April 30, 1985.

      Mark I. Bronson, St. Louis, for plaintiffs-respondents.
    Robert E. Keaney, Judson W. Calkins, Lashly, Caruthers, Baer & Hamel, St. Louis, for defendant-appellant.
   SIMON, Judge.

Plaintiffs, the widow and daughter of James Brickner, deceased, brought the present wrongful death action against Normandy Osteopathic Hospital, Inc. (Hospital); David K. Bean, D.O., a family practitioner, J.P. Smith, D.O., who was a resident in general surgery at Hospital, and John C. Olson, D.O., an urologist and surgeon. Plaintiffs alleged that the three doctors committed medical malpractice by failing to diagnose the deceased’s testicular cancer and that Hospital was vicariously liable for the alleged negligence of Dr. Smith. Dr. Olson and plaintiffs settled their case before trial for $200,000. Dr. Smith was dismissed from the lawsuit before the case was submitted to the jury. The jury returned a verdict of $1,000,000 for plaintiffs against Dr. Bean, and a verdict in favor of Hospital. The trial court granted plaintiffs’ motion for a new trial as to Hospital.

Dr. Bean appealed from the adverse judgment, but he and plaintiffs settled their dispute after the case was submitted to our court and his points relied on need not be considered. Hospital appeals from the trial court’s grant of a new trial.

Division Two of this Court affirmed the trial court’s grant of a new trial as to Hospital, but modified the order to preclude relitigation of the amount of plaintiffs’ damages and remanded the case for a new trial. We then granted Hospital’s motion for rehearing. After reconsidering en banc Hospital’s points relied on, we again affirm in part, reverse in part and remand for a new trial. .

Hospital contends the trial court erred in: (1) ruling that Hospital’s converse instruction was erroneous and (2) failing to restrict the new trial to only a determination of liability.

The trial court granted plaintiffs a new trial as to Hospital because of alleged error in the giving of a converse jury instruction to the verdict directing instruction against Hospital. The verdict directing instruction was MAI 20.01, modified by the first option in MAI 19.01 for acts committed by alleged joint tortfeasors:

INSTRUCTION NO._6
Your verdict must be for plaintiffs against defendant Normandy Osteopathic Hospital if you believe:
First, plaintiffs were the spouse and child of James L. Brickner, and Second, Dr. Smith failed to diagnose testicular cancer, and
Third, Dr. Smith was thereby negligent, and
Fourth, such negligence directly caused or directly contributed to cause the death of James L. Brickner.

The converse instruction conversed the last two elements of the verdict director; however, the converse of the fourth element deviated from the language of the verdict director in that the converse retained the “direct result” language of MAI 20.01 rather than the MAI 19.01 modification:

INSTRUCTION NO._7
Your verdict must be for Defendant Normandy Osteopathic Hospital unless you believe J.P. Smith was negligent as submitted in Instruction No. 6 and as a direct result of such negligence plaintiffs sustained damage.

Hospital admits that its converse instruction does not follow plaintiffs’ verdict director. Hospital contends, however, that the converse was proper because the verdict directing instruction itself was erroneously given in that Dr. Bean and Hospital, through Dr. Smith, were not joint tort-feasors. The issue is thus whether the two doctors could be considered joint tort-feasors.

The term joint tortfeasors embraces four distinct types of conduct: (1) concerted action; (2) common duty; (3) vicarious liability; and (4) single, indivisible harm caused by independent, separate, but concurring torts of two or more persons. See Sall v. Ellfeldt, 662 S.W.2d 517, 525 Fn. 4 (Mo.App.1983). Here, Dr. Bean and the Hospital, through Dr. Smith, were not acting in concert or under a common duty to plaintiffs’ decedent. Nor is Hospital vicariously liable for Dr. Bean’s negligence.

Only if Dr. Bean and Hospital committed independent separate, but concurring torts which caused a single, indivisible harm may they be considered joint tortfeasors. That only one harm — the death of plaintiffs’ decedent — occurred is beyond dispute. That each physician could independently be charged with negligence in failing to diagnose the decedent’s testicular cancer has not been contested.

Missouri law recognizes that where persons whose independent negligent acts coalesce to cause a single indivisible injury, each person may be jointly and severally liable for all the harm caused. Barlow v. Thornhill, 537 S.W.2d 412, 418[1] (Mo.banc 1976). Health care practitioners may become joint tortfeasors if their independent acts of malpractice combine to cause a single injury. See Sall v. Ellfeldt, 662 S.W.2d at 525 fn. 4. No reason has been advanced against applying general concepts of joint and several liability to the field of medicine. Dr. Bean and Hospital are arguably joint tortfeasors, and therefore, plaintiffs’ verdict director was correctly modified by MAI 19.01. “A true converse, according to the precepts of MAI 33.01 must submit the proposition of the verdict director in substantially the same language of that instruction.” Sall v. Ellfeldt, 662 S.W.2d at 524[3-5], In the present case, the failure of the converse instruction to mirror the verdict director is error.

In Sall v. Ellfeldt, supra, the court held that the defendant’s erroneous converse instruction, which, as here, departed from the verdict director by failing to take into account the MAI 19.01 modification, was not prejudicial because other instructions, particularly the instructions relating to apportionment of fault between the joint tort-feasor, sufficiently submitted the plaintiffs’ theory of joint tortfeasor and dispelled any intimation of sole cause. 662 S.W.2d at 526. We have examined all the instructions given to the jury in the present case, but unlike the court in Sall v. Ellfeldt, we are unable to find other instructions which sufficiently instruct the jury regarding joint liability and which dispel the notion of sole cause. No apportionment of fault instructions were given. Given the erroneous converse instruction, which was given in substantially identical form to the verdict director against Dr. Bean, the jury may have been led to believe that they could return a verdict against one of, but not both, the defendants.

The en banc rehearing of the present appeal was accompanied by the simultaneous rehearing of Abshire v. Nordson Corporation, 688 S.W.2d 1 (Mo.App. E.D., No. 47561). The present case and Abshire were reheard together because of the similarity of the issues presented and a perceived conflict between the two divisions’ opinions. Abshire is, however, distinguishable on its facts from the present case. There, a jury instruction on apportionment of fault and an apportionment of fault verdict form clearly informed the jury that plaintiffs could recover from both defendants, thus dispelling any intimation by the erroneous converse instruction that recovery could be had against only one defendant. See Sall v. Ellfeldt, supra. Here, however, the jury was given no apportionment of fault instructions or verdict forms which may have removed the prejudice caused by the erroneous converse instruction.

Deviation from the dictates of MAI is presumptively prejudicial error unless the proponent of the instruction can establish that no prejudice could have resulted from the deviation. Snyder v. Chicago, Rock Island & Pacific Railroad Co., 521 S.W.2d 161, 164[4 — 8] (Mo.App.1973). Hospital has failed to show how the converse was nonprejudicial.

Trial courts are vested with wide discretion in passing upon motions for a new trial. Union Electric Co. v. Turner, 446 S.W.2d 430, 433[4,5] (Mo.App.1969). Reviewing courts will be more liberal in upholding a trial court’s grant of a motion for new trial than its denial of the motion. Id. at 433-434[6]. We cannot say that the trial court abused its discretion in granting a new trial on the ground that the erroneous converse instruction was prejudicial to plaintiffs.

Next, Hospital argues that even if the trial court acted properly in its grant of a new trial, it should have limited the new trial to a determination of the Hospital’s liability only. We agree.

In Wolfe v. Harms, 413 S.W.2d 204 (Mo.1967) where a verdict had been returned against all four defendants, but a new trial had been granted as to two defendants, Harms and East, the trial court properly ordered the verdict “... held in abeyance until the cause was finally disposed of as to the liability only of Harms and East, and then to enter judgment for the amount of the verdict in abeyance against all defendants finally held liable.” 413 S.W.2d at 219[80,31]; see also Lemonds v. Holmes, 360 Mo. 626, 229 S.W.2d 691, 694[8] (Mo. banc 1950). The court in Yarrington v. Lininger, 327 S.W.2d 104 (Mo.1959), ordered the retrial of the issue of damages where a new trial was granted as to the liability of two of three co-defendants who had been held liable by the first verdict; however, the two defendants whose liability was to be redetermined had also complained that the verdict was excessive. Here, neither plaintiffs nor Hospital have questioned the propriety of the amount of the verdict.

The trial court thus should have held the $1,000,000 verdict against Dr. Bean in abeyance until the cause was finally disposed as to the liability only of Hospital, rather than enter judgment for plaintiffs and against Dr. Bean. Since plaintiffs could have only one satisfaction for the decedent's wrongful death, entry of the judgment on the verdict as to Dr. Bean while granting a new trial as to Hospital poses the possibility that Hospital could be discharged from liability by satisfaction of plaintiffs’ judgment against Dr. Bean. See Payne v. Bertman, 224 Mo.App. 690, 27 S.W.2d 28 (1930).

One may argue that with the vacation of the judgment against Dr. Bean and his dismissal from the lawsuit, the necessity of limiting the new trial to the issue of Hospital’s liability has vanished. For two reasons, we nevertheless consider the better course is to limit the issue at the new trial. First, insofar as is practicable, we desire to put the parties in the position they would have been had no uncorrected trial court error occurred. The only error not corrected by the trial court was its failure to hold the verdict in abeyance. Second, we see no reason why plaintiffs should be allowed to relitigate the issue of damages. Plaintiffs’ damages are unrelated to Hospital’s liability. In addition, plaintiffs do not complain that the $1,000,000 verdict is inadequate.

In order to allow a new trial of plaintiffs’ claim against Hospital and to permit a settlement between plaintiffs and Dr. Bean, which is exemplified by their covenant not-to-sue and which has already been approved by the trial judge, this court rules as follows: the trial court’s order granting a new trial as to Hospital is affirmed in part and reversed in part; the judgment in favor of plaintiffs and against Dr. Bean is vacated; and the causes are remanded to dismiss with prejudice plaintiffs' claim against Dr. Bean, pursuant to the trial judge’s order of July 12, 1984, to conduct a new trial as to the liability only of Hospital, and to hold in abeyance the amount of the verdict until the cause is finally disposed of as to the liability only of Hospital, and then to enter judgment for the amount of the verdict in abeyance ($1,000,000) against Hospital, if finally held liable, less the present value of the settlements between plaintiffs and Doctors Olson and Bean.

Judgment affirmed in part, reversed in part, and remanded with directions.

REINHARD, C.J., and PUDLOWSKI and DOWD, JJ., concur.

CRIST, P.J., and STEWART, J., concur in result.

KAROHL, J., dissents.

SMITH and GAERTNER, JJ., dissent in separate opinions.

SMITH, Judge,

dissenting.

I respectfully dissent.

In a very recent pronouncement the Supreme Court of this state said:

“Retrials are burdensome. There has been in recent years a trend away from reversal for error in instruction, unless there is a substantial indication of prejudice. This trend appears both in civil and in criminal cases. The very adoption of MAI, indeed, demonstrates confidence that the issues may be presented to juries through argument and that prolix factual instructions are neither necessary nor desirable. Our conclusion is consistent with this observed trend.” (Footnotes omitted) Fowler v. Park Corporation, 673 S.W.2d 749 (Mo.banc 1984) [14].

I must assume that this admonition applies equally to trial courts confronted with motions for new trial and to appellate courts reviewing the rulings made on those motions. Our deference therefore to the ruling of the trial court granting a new trial comes into play only if there is error in the instruction and substantial indication of prejudice. I find neither here.

MAI 33.01 requires that the true converse be in substantially the same language used in the verdict-director. That precaution is intended to avoid the distortion of the legitimate burden of proof on the issue submitted. Snyder v. Chicago, Rock Island & Pacific Railroad Co., 521 S.W.2d 161 (Mo.App.1973) [9-12]; Sall v. Ellfeldt, 662 S.W.2d 517 (Mo.App.1983) [3-5]. The verdict-director and the converse must be read together to determine the meaning to a jury of ordinarily intelligent laymen. Sall v. Ellfeldt, supra, [6]. In Snyder v. Chicago, Rock Island & Pacific Railroad Co., supra, the court found prejudicial error in the use of “direct result” language in an FELA case. The basis for this finding was that “direct result” requires proof of common law proximate cause rather than the less restrictive FELA “cause in whole or in part.” [11,12] In Sall v. Ellfeldt, supra, the court dealt with very nearly the identical question presented by the ease before us. The court there found the utilization of the “direct result” language “was not erroneous as a matter of law, caused no unfairness to the plaintiff, and did not materially affect the merits of the action.” [11],

I note that plaintiffs’ attack is not really to the entire phrase “direct result.” The word “directly” was used in the verdict-director so “direct” was substantially the same wording. “Result” as a noun means “something that results as a consequence, effect, issue or conclusion.” Websters Third New International Dictionary. “Direct result” is common law proximate cause which it was plaintiffs’ burden to prove. Snyder v. Chicago, Rock Island & Pacific Railroad Co., supra. The use of that phrase in no way placed any greater burden on plaintiffs or changed their theory of recovery. The identical phrase was, in fact, used in their damage instructions. If defendant’s actions directly caused or directly contributed to cause damage to plaintiffs, then that damage was the direct result of defendant’s actions. The words used in the converse were synonymous with those used in the verdict-director. I do not find the converse erroneous as violating the “substantially the same” requirement.

I also am unable to conclude that the converse could have confused a reasonably intelligent jury of laymen. I find it incongruous to believe that a reasonably intelligent jury instructed that it could find against the hospital if its negligence “directly caused or directly contributed to cause the death” of Brickner could interpret the “direct result” converse to allow recovery only if the hospital’s negligence was the sole cause of death. The majority opinion finds prejudice because the converse implies that a verdict can be returned against the hospital only if it was the sole cause of the death. From this it is reasoned that the jury may have been led to believe that it could return a verdict against one of, but not both, the defendants. If the converse implies sole cause then what it led the jury to believe was that it could not return a verdict against either defendant unless he or it was the sole cause of the death. Exactly the same verdict-directing instruction and converse were submitted as to Dr. Bean. The jury returned a verdict against Dr. Bean. Either the implication of sole cause was not conveyed to the jury by the converse instructions or it concluded that in fact Dr. Bean was the sole cause of the death, thereby freeing the hospital of liability. Whichever alternative is accepted there is no prejudice to plaintiffs. I am unable to accept the majority premise that the jury interpreted the converse as to the hospital to submit sole cause and interpreted the identical converse as to Dr. Bean to submit contributory fault.

The liability of the hospital here is based upon the alleged negligence of its employee, Dr. Smith. The charge was based upon Dr. Smith’s failure to diagnose the cancer and this in turn was based upon his failure to remove the testicle during surgery for pathological examination. Dr. Smith was a resident at the hospital and performed the surgery under the direct supervision of Dr. Olson for whose negligence the hospital was not liable. There was substantial evidence, virtually uncontested, that Dr. Smith had no discretionary authority during the surgery, he did only what he was directed to do by Dr. Olson. Because of the settlement Dr. Olson’s possible negligence was never submitted to the jury. Dr. Bean’s negligence was in his failure after the operation to discover the continued presence of cancer in the testicle or at least to be aware of that possibility and warn the decedent. In this posture the verdict of the jury is quite rational and in keeping with the evidence submitted to it.

I would reverse the order of the trial court granting plaintiffs a new trial against the hospital and would reinstate the jury verdict.

GAERTNER, Judge,

dissenting.

I join in Judge Smith’s dissenting opinion with these additional comments.

Sall v. Ellfeldt, 662 S.W.2d 517 (Mo.App.1983), is not authority for finding prejudicial error warranting a new trial because of the converse instruction, even in the absence of additional instructions regarding apportionment of relative fault. In Sail the court noted that “the settled principle requires that the verdict-director and the converse instruction be read together to determine the meaning they yield to a jury of ordinarily intelligent laymen: if the submission is legally sufficient by that standard, there is no prejudice.” Id. at 524-25. The court then pointed out that when the converse is read together with the verdict-director, especially since the former expressly refers to the latter, it “informs that Sail was entitled to a verdict not only if the Hunt misconduct alone caused the injury, but also if that negligence merely combined with the Ellfeldt acts to cause the injury.” Id. at 526. However, the court found it unnecessary to decide whether or not “the synthesis of the two instructions palliates any error” because of the additional instructions relating to apportionment of fault between co-defendants.

I am unable to fathom how the majority can read “sole cause” into the words “direct result.” They are, in effect, interpreting the word “direct” as meaning “independent.” The words are neither synonymous nor connotative of similar concepts. The relationship between cause and result is no less direct because the cause is a combination of result producing factors. In MAI the words “direct” as a modifier of “result” and “directly” as a modifier of “caused” are used to submit to the jury the issue of proximate cause as opposed to intervening or remote cause. It seems to me to be tortuous reasoning to conclude an ordinarily intelligent jury would read “direct result” as excluding the combination of two causes producing a single result. If the language of the converse constituted a departure from the language of the verdict-director, it was not a substantial departure, especially since the former refers to and must be read together with the latter.

Additionally, the deviation, if any, was not prejudicial for, if the interpretation the majority places upon the converse construction is correct, the jury found the negligence of defendant Bean to have been the sole cause of the death of plaintiffs’ decedent. The facts in this case completely dispel any such possible misinterpretation by the jury. The acts of Dr. Smith in performing the surgery were totally under the direction and control of Dr. Olson, who had settled with plaintiffs before trial. Plaintiffs voluntarily dismissed with prejudice as to Dr. Smith before submission. Under these circumstances, the verdict of the jury in favor of the hospital cannot even inferentially be based upon a misconception that plaintiffs’ damage could only directly result from the negligence of a single party.

ORDER

The en banc opinion issued in this cause on January 22,1985 supersedes the opinion of September 4, 1984.

      . Hospital has not contested the issue of its vicarious liability for Dr. Smith’s acts. Therefore, we did not consider the issue.

      . Because defendant Normandy Osteopathic Hospital has not asserted the issue of submissi-bility, we do not decide whether or not this evidence insulates the hospital from vicarious liability. Tractor-Trailer Supply Co. v. Wilbur Waggoner, etc., 539 S.W.2d 465 (Mo.App.1976).