concurring.
I reluctantly concur in the result. I do not agree with all of the statements in the majority opinion and write to state the bases for my agreement with the result and my disagreement with the majority’s statements.
There is a single point on appeal. The plaintiff-appellant contends that the defendant-respondent consented to the trial of the case on the admittedly defective amended petition.
The record, as the majority opinion shows, contains continuing objections by the defendant to the validity of the petition and to the admission of evidence because of the pleading deficiency. The conclusion that the record does not support a “consent” by the defendant is correct and requires that we affirm.
My reluctance in concurrence arises from the actions of the trial judge, which I believe misled plaintiffs counsel concerning the trial of the issues.
The record in this case indicates that the trial commenced on April 9, 1984, which was a Monday. The first statement in the transcript after the jury was sworn and the opening statements were made is a recital by defendant’s counsel. In that recital, the defense counsel states that the amended petition was filed April 4th, which would have been the preceding Wednesday. The recital continues that the defendant had filed a motion to dismiss on April 9th which challenged the failure of the amended petition to specifically allege the words of slander. Plaintiff’s counsel rejoined by stating that the defendant had been offered a continuance to meet the amended petition. The trial court then said:
Well, I think I can clarify the record. I think the record should show that last Wednesday, I believe, the plaintiff tendered an amended petition. Defendant at the same hearing which was off the record voiced an objection to the plaintiff at that time listing an expert witness. The Court said — this has happened twice now in the last two weeks, either the plaintiff or the defendant, after the date for continuance of the case have [sic] expired, after the Wednesday before the Monday set for trial, they’ve tendered expert witnesses. I didn’t let the defendant do it last week and I won’t let the plaintiff do it this week, or at any time in the future, because it places the other party at a total disadvantage in the trial of the case and necessitates a continuance in most instances,....
After I indicated that I would not permit the plaintiff in this instance to call an expert, the defendant did not accept the offer, the continuance that the Court gave him to meet the amended petition. I indicated again yesterday in a hearing off the record, I thought some of the defendant’s complaints against the petition were well taken, and that had a motion been filed — the same defect appeared in the first and second petition— had a motion to dismiss been filed back some two years ago, the Court would have given the plaintiff an opportunity to amend before striking the petition as the appellate courts have held should be done. Again, I offered the defendant that choice, and the defendant chose to go forward on the present petition based on the fact we will not have an expert in the case today.
So that’s the reason that the proceedings are somewhat confused.
[DEFENSE COUNSEL]: Might I add, Judge, of course, we have filed an answer to plaintiff’s amended petition and are prepared to go forward with that should the Court so order.
No such “order” was ever made; the court went on with the trial without any specific ruling on the motion to dismiss. Throughout the trial, the court summarily overruled the objections of the defendant to the admission of evidence of the slanderous statements on grounds the pleadings did not allege the slander. The plaintiff never attempted to clear up the question of the defendant’s “consent” to try the issue.
I believe the trial court thought there had been an agreement, and I believe plain*944tiff thought so, too. The record, however, does not reveal any consent by the defendant’s counsel and, in fact, reveals the contrary. Counsel and the trial court should have clarified the record.
I concur in result for the simple reason that plaintiff-appellant has not demonstrated a factual basis for his single point on appeal.
The statement in the majority opinion that the petition in a claim for legal malpractice must allege that the plaintiff “could have recovered a judgment in the action if it had been diligently prosecuted” is dicta and completely unnecessary to the opinion. Johnson v. Haskins, 119 S.W.2d 235 (Mo.1938), and Fischer v. Vonck, 614 S.W.2d 26 (Mo.App.1981), which are cited for the proposition, do not speak to a “recovery,” but to the existence of a cause of action.
Part II of the majority opinion is completely unnecessary to the determination to be made in this case and constitutes only dicta on the supposed issue of the failure to make a case. There is no brief of respondent making such a claim.
In my view there was evidence of slanderous statements that would support a verdict for slander. The report of the investigation in evidence states that the information is attributable to the source unless otherwise indicated. The context of the report shows that the investigation occurred at the Jupiter Store where the plaintiff worked. The report stated in part:
A few months after subject transferred ... heard from one of the firm’s district managers that subject had been forced to resign his position at Kansas City when $1000 turned up missing from the “cash cage” while subject was there and presumably responsible for it. A second employee of the S.S. Kresge Company had later corroborated ... district manager’s account of subject’s leaving. [Tjhere was no official doubt that subject had taken the money, although whether or not it had been admitted or proved ... did not know, he indicated.
There could be no doubt that a person in authority had accused the plaintiff of theft of a substantial amount.