concurring.
I fully concur in the principal opinion. I only write because I think that a quote there from City of Town and Country v. St. Louis County, 657 S.W.2d 598, 608 (Mo. banc 1983), could be misleading. That quote says:
“Prejudicial or reversible error in the admission or rejection of evidence is not an issue on appeal in any case tried before the judge without a jury.”
Of course, decisions of the Missouri Supreme Court are “controlling” on this court. Mo. Const. art. V, § 2. In the context used in City of Town and Country, the quoted statement may well be accurate, but I do not think it was intended to cover all situations regarding appellate review of evidence questions in nonjury cases.
It may be that the admission of improper evidence alone is not an issue in a nonjury case, but it can be where the trial court relied on that evidence in arriving at its finding or where there is an absence of competent evidence supporting the judgment. Yates v. Yates, 776 S.W.2d 46 (Mo.App.1989).
Rejection of proper evidence may also be considered on appeal. On appellate review the “court shall consider admissible evidence which was rejected by the trial court and preserved. The court may order that proffered evidence which was rejected by the trial court and not preserved be taken by deposition or by reference to a master under Rule 68.03 and returned to the appellate court.” Rule 73.01(c)(3).