text:
    Fred C. MINTERT, Plaintiff, v. Farwell H. GASTORF, Leona C. Gastorf and Carolyn Lasley, Respondents.
    No. 52409.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      Thomas M. Gioia and Robert H. Dierker, St. Louis, for appellant.
    Edwin Rader, Clayton, Warmann & Scheiter and Martin H. Schriewer, St. Louis, for respondents.
   STOCKARD, Commissioner.

Fred C. Mintert, 85 years of age at time of trial, brought suit to cancel certain quitclaim deeds to real estate whereby he conveyed title to a “straw party,” and that party then conveyed title to Farwell and Leona Gastorf, husband and wife, reserving a life estate in plaintiff with power of sale.

Farwell Gastorf was plaintiff’s stepson, and plaintiff alleged in his petition that Farwell and Leona occupied a confidential relationship with him, and that by fraudulent means and undue influence caused him to execute the quitclaim deed while believing that he was executing a will. The trial court found that a confidential relationship existed, but found all other issues for the defendants, and plaintiff has appealed.

Certain background information is necessary before we set out the circumstances of the execution of the quitclaim deeds. In 1934 plaintiff married Lydia Morrison, the mother of Farwell. Although plaintiff testified that in 1947 he had built a house, using “mine and Lydia’s money,” on the property in question, title to the property was conveyed from Ruth Sobelman, a daughter of Lydia, to plaintiff and his wife by the entirety in 1953. For about three years before her death on September 4, 1962, plaintiff’s wife had some “mental trouble,” and for the last year and a half she was in an institution. During this time plaintiff was in a hospital on more than one occasion. In June 1959, when plaintiff was hospitalized he executed a power of attorney on a form furnished by the hospital which the bank refused to recognize because not notarized. He later executed a power of attorney prepared by Richard C. Warmann, an attorney, at the request of the bank, and which plaintiff apparently executed before a representative of the bank. This power of attorney authorized Farwell to make withdrawals from a bank account maintained by plaintiff. At least when plaintiff was hospitalized, and apparently at other times, Farwell paid plaintiff’s monthly bills, using plaintiff’s money, and when plaintiff’s wife was in the institution plaintiff would give Farwell her social security check, or cash in that amount, and Farwell would pay the institutional bills of “better than $200 a month.” Plaintiff testified that he did not recall signing the power of attorney, that he knew “nothing about it,” and although he admitted that Farwell paid bills from the bank account he said he did not know how he got the authority to do so. Farwell testified that in 1962 after plaintiff’s wife died, he and plaintiff went to the bank and plaintiff “had my name put on [the account] with his.” Plaintiff denied that he went to the bank with Far-well, and he testified that he did not know until 1965 that Farwell’s name was on the account. However, plaintiff makes no contention whatever, not even an intimation, that Farwell misappropriated any of the money or used any of it improperly or for an unauthorized purpose.

In 1960 plaintiff and Farwell went to the office of Mr. Warmann and consulted with him relative to obtaining from Ruth Sobelman some “papers” which belonged to plaintiff, which included, according to Mr. Warmann, “his insurance policies and supposedly his will, cemetery papers, that sort of thing.” Mr. Warmann talked to Ruth Sobelman on the telephone, and apparently the matter was satisfactorily concluded. On May 31, 1961, Mr. Warmann had a conference with plaintiff relative to the preparation of a will. On June 7 plaintiff returned to Mr. Warmann’s office and executed the will. Mr. Warmann and his law partner signed as witnesses. By the terms of that will plaintiff left all of his property to his wife, and stated in the will that he had named Farwell as beneficiary of certain life insurance and that he had named him “as the joint owner of certain other property.” He also provided that if his wife predeceased him, Ruth Sobelman should receive five dollars, and that Far-well should receive “all of the rest, residue and remainder” of his estate, and that Farwell should serve as executor without bond. Mr. Warmann testified that in conferring with plaintiff about the terms of the will he had recommended to him that he change the beneficiary on an insurance policy from his wife to Farwell and to have Farwell made a joint owner with plaintiff of a small savings account. It does not affirmatively appear, but apparently the above reference in the will was to these two matters. Plaintiff testified that he did not remember that Mr. War-mann wrote a will for him in 1961, that he could not remember signing a will prior to October 1962, and that he had never seen that will, if he had one. However, on redirect examination he inferentially admitted he had signed a will in which he gave Ruth Sobelman five dollars and the rest of his estate to Farwell, but he said that when he gave Ruth Sobelman five dollars “it wasn’t my last will.”

With this background we now turn to the evidence concerning the execution of the deeds which plaintiff seeks to cancel by this suit.

Leona Gastorf testified that shortly after plaintiff’s wife died he was at their house and he stated to Farwell that since his wife was deceased “they ought to have [the house] put in their names,” and that “they” told her to “call the lawyer tomorrow and make an appointment.” Mr. Warmann testified that Leona called him on September 23, 1962, and after refreshing his recollection from his notes, he said that she told him that “they” wanted “to put title in joint names.” His recollection was that he had “explained to her at that time that there was a better way.” Leona was of the opinion that she did not state the purpose of the visit but only asked for an appointment. In any event, plaintiff, Farwell and Leona came to his office. Mr. Warmann testified that as the result of his conversation with Leona, he prepared an affidavit for plaintiff to sign pertaining to the ownership by plaintiff and his wife of the property by the entirety and that his wife was deceased, and also prepared two quitclaim deeds. One deed was from plaintiff to Mr. Warmann’s secretary as a straw party, and the other was from the straw party to Farwell and Leona, but “subject to an estate * * * to [plaintiff] for and during his natural life, with power * * * to use, occupy and enjoy the same and to collect the rents and income thereof, for his sole and exclusive use, and with the further power, which is hereby expressly granted to [plaintiff] to sell, mortgage, convey or in any other way dispose of the fee simple title to the said premises or any part thereof, and to rent or lease the same or any part thereof for any period, all in the sole discretion of said [plaintiff] and by his sole deed or other instrument.”

Mr. Warmann testified that plaintiff came to his office on October S, 1962, in company with Farwell and Leona, that he explained to plaintiff the purpose and effect of the deeds, and that there was a note in his file to the effect that plaintiff at first did not understand about the deed to the straw party. He further testified that he pointed out to plaintiff that because of his wife’s death there was no reason to change the will executed in 1961, and he stated that when plaintiff was in his office he did not tell him that the deed he had prepared for plaintiff was a will. He could not remember, and his notes did not reflect, who was present at the time the deeds were signed, but after his explanation of the transaction plaintiff signed the affidavit and the deed to the straw party, and Mr. Warmann notarized each instrument. There was some discrepancy between the recollection of Mr. Warmann, who indicated that he had no independent recollection but was relying on his file notes, and the recollection of Farwell and Leona as to the meeting at Mr. Warmann’s office. According to Farwell and Leona they took plaintiff there, Mr. Warmann took notes on what was wanted, plaintiff went back later and alone, and they were not present when plaintiff signed the affidavit and the deed. According to Mr. Warmann, Leona had told him by telephone that they wanted the house in joint names, that he told her there was a “better way,” and that he obtained a description of the property and had the affidavit and deeds prepared when he first met with plaintiff to explain the transaction to him. In any event, after the affidavit and the deeds were signed, Mr. Warmann had them recorded, and he then sent them by mail to plaintiff with a statement of his fee and the cost of recording. On November 9, 1962, plaintiff went to Mr. War-mann’s office alone and paid, according to plaintiff $23.00, and according to Mr. Warmann $30.25.

Plaintiff admitted that he went to Mr. Warmann’s office in October 1962, and although plaintiff admittedly had previously consulted with Mr. Warmann at least twice, he testified that in October 1962 was the first time he had met Mr. Warmann and that he did not know him personally. He then, by inference, qualified that statement by saying that Mr. Warmann may have had an office somewhere else, but in October 1962 was the first time he had been in that office. Mr. Warmann testified that his office address had been the same since 1956. Plaintiff also testified that he told Mr. Warmann that he wanted to make a will leaving all of his property to Farwell, and he testified that at that time he was of the opinion that he did not then have a will, or if he had one he had forgotten about it. He denied that he wanted to make a deed, or that Mr. Warmann had explained to him the purpose and effect of the deeds. He first testified .that he did not know if he signed a paper in Warmann’s office, but then said he “might have signed a paper,” and later in response to leading questions admitted that he signed a paper but stated that he thought it was a will. Although plaintiff returned to Mr. Warmann’s office on November 9, 1962 and paid the statement sent to him by mail which plaintiff admitted he received, he testified that he never received the letter from Mr. War-mann and had never seen the deeds after they were signed. He also said that he first learned about the deeds in 1965 when he saw a tax bill and learned that Farwell’s name was on it.

In this equity action we must determine the cause de novo, weigh the competent evidence introduced upon the factual issues, and reach our own conclusions based upon that evidence, although we defer to the finding of the trial court where there is conflicting oral testimony involving a determination of the credibility of witnesses who appeared before it. Jackson v. Tib-bling, Mo., 310 S.W.2d 909, 914. We must also keep in mind that the cancellation of a deed is the exercise of the most extraordinary power of a court of equity, and this power ought not to be exercised except when clearly justified from a consideration of all of the evidence in the case. Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59; Walton v. Van Camp, Mo., 283 S.W.2d 493, 500.

The trial court found that a confidential relationship existed between plain-tiff and Farwell Gastorf and his wife, and we agree with that finding. As to what constitutes a confidential relationship in a situation such as this, see Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69, 74; Walton v. Van Camp, supra; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842; Restatement of Restitution, § 182. It is plaintiff’s position that when a confidential relationship is established there then arises a rebuttable presumption of undue influence, and that the burden of rebutting that presumption was not met by Farwell and his wife in this case. The same contention was made in Walton v. Van Camp, supra, and it was there said: “However, in Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, 778, this court en banc stated that ‘it is not the rule in this state that a mere confidential relation raises a presumption of undue influence/ See also Lastofka v. Lastofka, supra [339 Mo. 770, 99 S.W.2d 46]; Hamilton v. Steininger, supra; and Horn v. Owens, supra [Mo., 171 S.W.2d 585]. Undue influence will not be inferred or assumed from the mere showing that a confidential relationship existed between the grantor and grantee, but the burden is upon the one challenging the deed to adduce facts and circumstances from which it may be inferred undue influence was exercised. Las-tofka v. Lastofka, supra; Hamilton v. Steininger, supra; Horn v. Owens, supra. If these facts and circumstances are shown, they are, of course, rebuttable, and the grantee of the deed, or those claiming under him, may show that the grant was not the result of undue influence but was the voluntary act of the grantor. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706. Therefore, when facts and circumstances are shown from which undue influence may be inferred, and there is evidence to rebut this inference, it becomes a question for the trier of fact based upon all the evidence whether the influence is undue in that it arose to the mark of persuasion, coercion, force or deception as to break the will of the person overinfluenced and put in its stead the will of another. Hedrick v. Hed-rick, supra; Horn v. Owens, supra.

For the purposes of this opinion we shall assume that plaintiff has presented facts and circumstances, one of which would be the existence of the confidential relationship, from which undue influence could be inferred. Of course, as stated above, these facts and circumstances are rebuttable, and even though we admit the existence of the confidential relationship, it is a question for the trier of fact (at this stage of the case, this court, subject to the deference to be shown to the findings of the trial court on the issue of credibility), based upon all the evidence whether undue influence brought about the execution of the deeds.

We are first impressed by the fact that at the time of trial plaintiff was eighty-five years of age, and he definitely was suffering from loss of memory or he was not telling the truth, and we believe it was the former. There is no question but that he executed the power of attorney designating Farwell as his agent. There also is no question that he executed his will in 1961, and that prior to October 1962 he had on at least two occasions conferred with Mr. Warmann. Yet he testified that he could not remember signing the will or the power of attorney, and that he did not know Mr. Warmann. He testified that he went to see Mr. Warmann in October 1962, and that Farwell and Leona took him there, with the intent to make a will by which he would leave everything to Farwell. However, at that time he had a will, and as far as shown by the record it is still in existence, by which that precise result was accomplished except for the relative insignificant provision that five dollars should go to Ruth Sobelman. In the face of this inconsistency in purpose, as developed from plaintiff’s testimony, and his unreliable memory, undoubtedly resulting from his age, we have the clear, cogent, and convincing testimony of Mr. Warmann, supported by his file notes, which show that the purpose and intent, not only of plaintiff but of all concerned, was to effectuate a status leaving the use and control of the property in plaintiff during his lifetime, and at the death of plaintiff, if the property had not previously transferred by plaintiff, to have title in Farwell and his wife, both trusted friends who had promised to take care of plaintiff during his lifetime, and whom plaintiff admitted were performing this promise. There is no evidence of fraud or undue influence on the part of Farwell or Leona; at most there are shown facts and circumstances from which it could be inferred that there was an opportunity to exercise undue influence if they had been so inclined. But, mere opportunity alone, or mere suspicion of undue influence, unsupported by evidence showing its actual existence, is not sufficient to invalidate a deed. Hamilton v. Steininger, supra; Walton v. Van Camp, supra at p. 502 of 283 S. W.2d. To sustain plaintiff’s contention would necessarily require a finding of a conspiracy and misrepresentation on the part of the attorney in that he prépared the deeds and presented and represented them to plaintiff as a will, and there is nothing to justify such a finding.

Assuming, as we have, the facts and circumstances in this case are sufficient to authorize an inference of undue influence, we then have a question for the trier of fact, and when we review the entire record and take into consideration all the evidence and circumstances, we must and do conclude that the evidence does not establish such acts or conduct on the part of Farwell or his wife which would require or even justify the relief requested by plaintiff on the grounds of fraud or undue influence.

The weight of the competent and credible evidence is strongly in accord with the findings of the trial court. The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner. FINCH, Acting Presiding Judge

license: Public Domain

text:
    UNIVERSITY CITY, Plaintiff-Respondent, v. DIVELEY AUTO BODY COMPANY, Inc., a Corporation, Defendant-Appellant.
    Nos. 52069, 52070.
    Supreme Court of Missouri, En Banc.
    June 12, 1967.

      John J. Morris, City Counselor and John F. Mulligan, Associate City Counselor, University City, for respondent-plaintiff.
    Milton Suffian and Joseph S. Rosenthal, St. Louis, for defendant-appellant.
   BARRETT, Commissioner.

In separate informations and appeals, consolidated for trial and here, the Diveley Auto Body Company, Inc., was charged with unlawfully maintaining nonconforming signs in violation of the zoning ordinances of University City. Upon trial in the circuit court the appellant was found guilty and assessed a fine of $100.00 and costs in each case, and after its motion for a new trial was overruled perfected its appeal to this court on the theory that they were “cases involving the construction of the Constitution of the United States or of this state.” Const.Mo. Art. 5, § 3, V.A. M.S.

In the first place the respondent city contends that the appellant’s “statement of error and points relied upon” are mere “abstract statements of law and do not specify the allegations there relied on,” all in violation of Civil Rule 83.05(e), V.A.M. R., and therefore do not present reviewable questions to this court. The assignments in the appellant’s brief are indeed abstract and conclusional but the respondent does not claim that the appellant’s brief is such a violation of the rules as to require a dismissal and the appellant’s two-point position is plainly understandable from the argument section of its brief and there is not such a flagrant abuse of the rules that this court should on its own initiative dismiss the appeal. Warren v. Weaver, Mo.App., 343 S.W.2d 682; Domijan v. Harp, Mo., 340 S.W.2d 728, 731-732 and compare Mario Coil Corporation v. Grand Park Corporation, Mo.App., 348 S.W.2d 610.

As to the basic jurisdictional problem, questioned by the respondent, it may only be said that upon this record and in this particular case it is unnecessarily and vexatiously complex. In the first place, the prosecutions are not for the commission of conventional misdemeanors (RSMo 1959, § 556.040), criminal offenses (22 C.J.S. Criminal Law § 7, p. 17), but are rather to enforce a billboard ordinance or, strictly speaking, to recover penalties for its violation. City of Webster Groves v. Quick, Mo., 319 S.W.2d 543, 545. But in either case jurisdiction of appeals is appropriately in a court of appeals unless a constitutional question is timely raised and kept alive. City of St. Louis v. Page, Mo.App., 259 S.W.2d 98. And the city does not make the usual claim that the constitutional questions were not urged or kept alive at all levels, city as well as circuit court (City of Frankford v. Davis, Mo.App., 348 S.W.2d 553), its claim is that the issue was not properly and timely raised consistently with good pleading and orderly procedure because “plaintiff had three prior cases in the Circuit Court whereby the issue could have been raised involving the same violation and in addition thereto appellant previously filed an injunction suit again involving essentially the same violation which was disposed of by defendant consenting to dismiss the case at its costs and agreeing to comply with the zoning ordinance.” In short, the city says' that by reason of other suits between the same parties and other prosecutions, at one time or another it was said that there had been as many as twenty-eight such cases, the appellant could and should have raised the constitutionality of the ordinances and having failed to do so may not urge them in either these trials or on appeal. The precise point is all but unique and the cases cited by the respondent, instances of constitutionality not being raised until and except in the motion for new trial (State v. Arnett, Mo.App., 370 S.W.2d 169) are not helpful. There may be no cases dealing with the precise contention and Massey-Harris Harvester Co. v. Federal Reserve Bank, 340 Mo. 1133, 104 S.W.2d 385, is not plainly in point because based in part on the theory of “inherently involved” and yet there is a lesson in the case if not an analogy. There the plaintiff alleged that a statute was unconstitutional and the defendant moved to transfer the case to the court of appeals claiming that the constitutional question had not been properly preserved because not raised in the prior trial and appeal and presumably therefore waived. But the court pointed out that the first trial did not in fact involve the new challenged state statute which was only brought into the case on appeal and so this court said, “Under these circumstances, we hold that the question was timely raised by the relief sought (to prevent its application [as being unconstitutional]) in the amended petition filed before the second trial.”

On the other hand, the informations involved here were of necessity originally filed in the police or city court and were in the circuit court “by the filing of transcripts on appeal” (City of St. Louis v. Stenson, Mo.App., 333 S.W.2d 529) and it does not affirmatively appear upon this record that the appellant challenged the constitutionality of the billboard sections of the ordinance in that court. Colloquy of counsel indicated that “constitutional propositions” had been raised in the first equity action. But here there were no formal before-trial motions attacking the informations (Criminal Rules 25.-05; 25.06, V.A.M.R.) but at the close of the city’s case the appellant filed motions to “dismiss information(s)” alleging as grounds that the billboard sections of the ordinance were unreasonable, discriminatory, not related to health, safety or welfare and violated due process and equal protection under both state and federal constitutions. In its motion for new trial these same grounds and perhaps some additional constitutional grounds were set forth. In these circumstances and for the purposes of appellate court jurisdiction within the meaning of the constitution (Const. Mo. Art. 5, § 3) the issue of unconstitutionality was timely and sufficiently raised. Village of Bel-Nor v. Barnett, Mo., 358 S.W.2d 832, 836-837. And jurisdiction of the appeal remains in this court even though the constitutional question is in fact without merit or unnecessary to a disposition of the cause. City of St. Louis v. Flynn, Mo., 386 S.W.2d 44; In re Search Warrant of Property, Mo., 369 S.W.2d 155.

The difficulty with the appellant’s cause is not constitutionality in the jurisdictional sense but in the fact that the allegations of its motions are not supported by the record. The first point in its brief is that the court erred in admitting the ordinances in evidence because by reason of the due process clauses they “are unconstitutional and void.” In its brief in this connection it argues from the definitions of the ordinance, and the footage allowed for certain signs that the city “does not treat all classes the same under these sign regulation ordinances” hence they do not rest upon “a rational basis of classification” and infringe constitutional guaranties of due process, equal protection and even of free speech. In part the parties have relied upon certain of the zoning ordinance cases and in some respects they are applicable but there is in fact a vast difference in general zoning ordinances and billboard ordinances even though the latter may be, as here, a part of the former. 3 Am. Jur. (Advertising) § 1'4, p. 371; 62 C.J.S. Municipal Corporations § 221 b(4), pp. 405-408. In the second place, while the appellant seeks to demonstrate from the terms of the ordinance alone that it is unreasonable that was not the basis of its defense in the trial court. It did not attempt here as in the leading billboard cases (St. Louis Gunning Advertising Co. v. City of St. Louis, 235 Mo. 99, 137 S.W. 929; St. Louis Poster Advertising Co. v. City of St. Louis, Mo., 195 S.W. 717; and Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099) to prove that there was no need or reasonable basis for the ordinance and that therefore it was unconstitutional. Those cases held upon the facts there adduced and as against virtually the same arguments advanced here that the billboard ordinances were a valid and reasonable exercise of the police power. Annotations 72 A.L.R. 465, 466; 58 A.L.R.2d 1314. As against the objections urged here those cases are applicable and controlling and the court did not err in admitting the ordinances in evidence.

The zoning ordinance, enacted April 6, 1959, in section 2010.7 provided that “any such nonconforming sign shall, within a period of three years (the appellant says one year) * * * either be made to comply with all the provisions hereof or be removed.” The appellant’s defense to the two charges was that the signs on its property were all erected in 1954, that it purchased the property in 1958 with the signs in place and therefore had a vested, protectible nonconforming use making, as to its property, the ordinance unconstitutional and void. The city does not controvert these facts or even the principles relied on, but the city is not in these prosecutions seeking to compel the removal of all the signs or to completely take away or destroy the owner’s nonconforming use of its property as in the true nonconforming zoning use cases of State ex rel. Capps v. Bruns, Mo.App., 353 S.W.2d 829; Hoffmann v. Kinealy, Mo., 389 S.W.2d 745 and Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491. The prosecutions here, instituted in 1965, are for the continued unlawful maintenance of nonconforming signs “to wit: (a) excessive number of signs, and (b) signs at improper heights.” There may have been - a fact issue as to the existence of nonconforming signs although the city does not seem to challenge the fact. See Bartholomew v. Board of Zoning Adjustment, Mo.App., 307 S.W.2d 730; Veal v. Leimkuehler, supra. In any event, as to this particular cause “Some regulations by a municipal corporation of billboards or advertising structures have been held to apply to structures erected prior to their passage or enactment; and they have been regarded as not offensive to the provisions of the organic law protecting vested interests or inhibiting retrospective legislation.” 62 C.J.S. Municipal Corporations § 221 b(4), p. 408. In Kansas City Gunning Co. v. Kansas- City, 240 Mo. l.c. 676, 144 S.W. l.c. 1103, 1104, speaking of a billboard ordinance, the court said: “Such ordinances are enforceable, when otherwise valid, in praesenti as well as in futuro. They do not in a legal sense take the property of persons against whom they are directed. They simply regulate the use of such property by prohibiting its injurious or criminal use by the owner, and hence they do not offend (as claimed by plaintiff) any provision of the organic law protecting vested interests or inhibiting retrospective legislation.”

In accordance with the indicated views the judgments in these consolidated cases are affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C. is adopted as the opinion of the Court en Banc.

All of the Judges concur except FINCH, Acting P. J., who dissents in separate dissenting opinion filed.

FINCH, Acting Presiding Judge

(dissenting) .

I respectfully dissent from the principal opinion herein. I have concluded that this case is governed by the opinion of this court en banc in Hoffmann v. Kinealy, Mo., 389 S.W.2d 745.

Defendant is prosecuted herein for maintaining advertising signs which do not conform to a University City zoning ordinance. The signs in question were erected in 1954 and were in place on the property when it was purchased by defendant in 1958. The zoning ordinance under which defendant is prosecuted was enacted April 6, 1959. That ordinance was made applicable to existing as well as future advertising signs. Section 2010.7 of the ordinance provided that within three years from the date of the ordinance, all nonconforming signs existing on the effective date of the ordinance should be made to conform or should be removed. The defendant is charged with having an excessive number of signs under the ordinance. Presently, there are ten signs on his propery, and under the ordinance he would be required to reduce the number from ten to two signs. There also was a complaint that the signs were of improper height under the zoning ordinance. It appears that there was no complaint as to any structural defect or that the signs were not safe and sound.

In the Hoffmann case this court held that lawful nonconforming use of land or buildings constituted a vested property right which a city may not take under a zoning ordinance by the amortization technique. The court held that to permit such a procedure would constitute the taking of property without just compensation and without due process.

In Hoffmann the lots were being used for open storage of lumber, building materials and construction equipment and had been so used prior to the adoption of the zoning ordinance. When the zoning ordinance was adopted, it provided that use of land within any dwelling district for purposes of open storage not conforming to the provisions of the ordinance should be discontinued within six years from the effective date of the ordinance. The court held that there was no basis for distinguishing between use of vacant lots or buildings and that in either event a preexisting lawful nonconforming use of the property constituted a vested right which could not be taken by the amortization process.

I can see no difference between an ordinance which undertakes to amortize the right to store lumber, for example, on a vacant lot and one which attempts to amortize the right to have billboard signs on a lot. It is true that in the St. Louis ordinance the right to open storage was to be completely eliminated at the end of the amortization period, whereas here the ef-feet is to eliminate the right to use eight of the ten signs rather than to completely eliminate the right to have billboards. This, however, is not any valid basis for distinction between the two cases. In oral argument counsel for the City conceded that if in Hoffmann the ordinance of the City of St. Louis had provided that after the amortization period the owner could only have two stacks of lumber, whereas before he had more, the result would and should have been the same. He concedes that under those circumstances the ordinance would be unconstitutional. Consequently, we are faced with the question of whether there is any valid basis for establishing a different rule with respect to amortization of the right to have pre-exist-ing nonconforming billboards and the right to have pre-existing nonconforming stacks of lumber. It should be kept in mind that this is not a proceeding in which the City sought to abate these billboards as a nuisance. No evidence was offered that garbage was dumped behind the billboards, or that they constituted a health hazard, or that criminals lurked behind them. Instead, this proceeding is on the basis that the right to maintain these billboards expired after the amortization period, and the fundamental issue therefore is identically the same as it was in the Hoffmann case, i. e., may the City, by the amortization technique, eliminate pre-existing lawful nonconforming use of vacant property.

The principal opinion relies on the case of Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099. In that case there were pleadings and proof that the billboards were defective, that they were a menace to safety, that they were hiding places for criminals, that they constituted fire hazards, that some had fallen down and injured people, and that they were a public nuisance. The court did, however, say that the ordinance was enforceable in praesenti as well as in futuro, and that such ordinances did not take property of persons but simply regulated its use. I am not certain that when the Kansas City Gunning case is analyzed it necessarily is in conflict with Hoffmann, but to the extent that it holds or infers that billboards which are not shown to be a nuisance and therefore constitute a preexisting lawful nonconforming use of the property may be eliminated merely by the amortization technique, I would hold that the Gunning case was overruled by Hoff-mann.

The Hoffmann opinion recognized that municipalities have employed various approved methods of diminishing and eliminating nonconforming uses by prohibiting resumption after abandonment, or by restricting a change from one nonconforming use to another, or by preventing rebuilding or alteration of nonconforming structures, but held that nonconforming uses may not be eliminated by simply allowing a period of time during which the owner may continue the nonconforming use.

Clearly, the ordinance involved here employs the amortization method of eliminating nonconforming use of property which was condemned in the Hoffmann case. Consequently, I would reverse the judgments.

The defendant also asserts that the ordinance is discriminatory and unconstitutional in that it permits 600 square feet of signs to advertise products not sold on the premises, whereas it permits only 450 square feet for products sold on the premises. I would not reach the determination of that question because, in my judgment, the case is ruled by Hoffmann.


author: THEODORE McMILLIAN, Special Judge.

text:
    PINE LAWN BANK AND TRUST COMPANY, Plaintiff-Appellant, v. Dale A. URBAHNS and Mrs. Dale A. Urbahns, Marie Stewart and Betty M. Shireman, Defendants-Respondents.
    No. 32727.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied June 14, 1967.

      W. W. Sleater, St. Louis, for plaintiff-appellant.
    Carl E. Starkloff, Clayton, for defendants-respondents, Stewart & Shireman.
    Ziercher, Tzinberg, Human & Michen-felder, Robert C. Jones, Clayton, David J. Tompkins, St. Louis, for defendants-respondents Dale A. Urbahns & Mrs. Dale A. Urbahns.
   THEODORE McMILLIAN, Special Judge.

This is an action filed in equity by the plaintiff-appellant, Pine Lawn Bank and Trust Company, hereinafter referred to as appellant, to foreclose an alleged lien on real estate located in St. Louis County. The trial court dismissed the cause of action against all defendants, hereinafter referred to by their individual names; and further declared that a certain Magistrate Court judgment was not a lien against the real estate in question, and that appellant was not entitled to a lien or to foreclosure. Appellant appealed from this judgment.

Originally, the appeal was lodged in the Missouri Supreme Court; however, the Court, on its own motion, ordered the cause transferred to this court for lack of jurisdiction, citing McHolland v. Treadway, 328 Mo. 721, 41 S.W.2d 375, for the proposition that the question of appellant’s right to a lien on the land does not involve title to real estate within the meaning of the Missouri Constitution, Article 5, Section 3, V.A.M.S.; Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771.

The rules of review attendant upon a case of this nature are well known. We are to hear the case de novo, giving due deference to the trial court’s findings on matters involving the credibility of a witness, and to reach our own conclusion as to the facts. Lake Development Enterprises, Inc. v. Kojetinsky, Mo.App., 410 S.W.2d 361, 363 [1]; Selsor v. Shelby, Mo.App., 401 S.W.2d 169.

Defendants Urbahns claim that the judgment of the trial court should be affirmed for the reason that appellant failed to preserve any error for review. On March 4, 1965, the trial court entered a decree, and thereafter, on March 18, 1965, appellant’s motion for a new trial was filed. The court did not rule on appellant’s new trial motion; but, on March 29, 1965, on its own motion, set aside the March 4, 1965, decree and entered a new decree. Thereafter, appellant did not file another motion for a new trial nor refile the first one. Appellant appealed from the judgment and decree entered on March 29, 1965. Seizing upon the failure to file a new motion for a new trial, defendants Urbahns say, pursuant to Civil Rule 79.03, V.A.M.R., nothing is preserved for review. Under these circumstances, that rule did not require plaintiff to file another motion for new trial. The motion to dismiss is denied.

On August 3, 1959, defendants, Betty M. Seabaugh, nee Shireman, and her husband, Edward Seabaugh, borrowed $2,805.73 from appellant. The loan was secured by three instruments: (1) the note and (2) the collateral security agreement (both on one document), and (3) a motor vehicle chattel mortgage. Paragraph 9 of the collateral security agreement reads as follows:

“(9) Said Bank may record this note in the office of the Recorder of Deeds of any City or County of any State and thereupon said Bank shall have a lien for its payment upon any interest in any real property or leasehold owned by any maker * * (Emphasis ours.)

At the time of the execution of the note and agreement, defendant Betty M. Shire-man was the owner of record of Lot 22 of Lower Ladue Hills, according to the plat thereof recorded in Plat Book 57, pages 2 and 3 of the St. Louis County Recorder’s Office, together with all improvements thereon known and numbered as 8589 Harold Drive.

The evidence showed that E. L. Altenbernd, assistant secretary for appellant, handled the loan negotiations. He said that he was present when the Seabaughs signed the note and agreement, and he affixed his signature in two places over the word “witness” in the presence of the Seabaughs. After default of two payments, Altenbernd, on April 4, 1960, took and exhibited the note and collateral agreement before a notary public. Then he made an affidavit (1) that he personally appeared before the said notary and that the notary knew him (Altenbernd) to be the person described in the note and agreement as a witness; and (2) that the Seabaughs, whose names were subscribed to said instrument as parties, were the persons who executed the same and that Altenbernd subscribed his name as a witness thereto. On the same day, appellant’s vice-president, J. T. Dodds, Jr., made an affidavit declaring appellant to he the owner of the note and security agreement executed by the Seabaughs and that said note is “filed” (sic) for record to establish a lien on the Lower Ladue Hills property. Altenbernd’s acknowledgment and Dodd’s affidavit were then physically attached to the note and collateral agreement, and then filed with the St. Louis County Recorder of Deeds on April 19, 1960.

On July 1, 1960, defendant Betty M. Shireman, by warranty deed, transferred the said property to Marie T. Stewart. Miss Stewart, on December 1, 1960, transferred the property to defendant, Dale A. Urbahns, who joined with his wife, Aleeta, •on July 12, 1961, to convey the property in question to Aleeta and Dale A. Urbahns, wife and husband, who are the present titleholders of record. On July 27, 1961, Betty M. Shireman filed a petition in bankruptcy, and was discharged in bankruptcy on October 2, 1961. Other facts, as needed, will be referred to hereinafter.

Appellant contends that the court erred in the following respects: (1) failure to declare a lien and to order a foreclosure and sale of the property in question; (2) in holding that appellant is not entitled to a general judgment against Betty M. Shire-man; and (3) in not allowing appellant attorney fees.

It would be unrewarding and unavailing to consider other issues raised unless we can first establish that the collateral security agreement either created a lien or, by the occurrence of a condition subsequent, provided the mechanism by which a lien could be established. Consequently, we shall examine, first, this issue pertaining to the lien.

At common law there could be no lien upon land but only on things of a personal nature, the possession of which had been given to lien claimant. Tiffany’s Real Property, New Abridged Edition, Section 948; 2 Spencé, Eq.Jur. 796. However, with the passage of time, the Chancellor in Courts of Equity began to recognize certain rights in land, and in personalty, not based on possession, yet of a character analogous to common law liens; therefore, these came to be known as “equitable liens.” These rights consist of personal obligations of landowners which equity enforces against the land and which follow the land until they reach those of a purchaser for value without notice. Tiffany’s (supra). Of course, around this body of law, certain rules and regulations developed which we shall refer to more fully hereafter. “Equitable liens,” as stated in 1 Harvard Law Review 55, 65, 66, do not confer proprietary or real rights, but, merely constitute the means by which equity enforces personal obligations. So, with this background, since land is ordinarily the primary fund for the payment of both debts and legacies, the presumption is always to that effect, and a clear intention must be established to charge the land for personal obligations. Wright v. Denn ex dem. Page, 10 Wheat. 204, 23 U.S. 204, 6 L.Ed. 303; In re Powers, 124 N.Y. 361, 26 N.E. 940; Heslop v. Gatton, 71 Ill. 528; Owens v. Claytor, 56 Md. 129.

In recognition of the above principles, Mr. Justice Story in Equity Jurisprudence, Redfield 10th Edition, Vol. II, Section 1231, Page 483, stated:

“Indeed, there is generally no difficulty in equity in establishing a lien, not only on real estate, but also on personal property * * * wherever there is a matter of agreement, at least against the party himself and third persons who are volunteers or have notice; for it is a general principle of equity that as against the party himself, and any claiming under him voluntarily or with notice, such an agreement raises a trust, citing, Legard v. Hodges, 1 Ves., Jr., 478.”

To like effect is Jones on Mortgages, 5th Edition, Vol. I, Section 162, Page 138, where it is said:

“In addition to these formal instruments which are properly entitled to the designation of mortgages, deeds, and contracts, which are wanting in one or both of these characteristics of a common law mortgage, are often used by parties for the purpose of pledging real property, or some interest in it, as security for a debt or obligation, and with the intention that they shall have effect as mortgages. Equity comes to the aid of the parties in such cases, and give effect to their intention * * (Emphasis ours) See also Ketchum v. St. Louis County, 101 U.S. 306, 25 L.Ed. 999 (affirming Ketchum v. Pacific Railway Co.,) Federal case No. 7,740, 4 Dill 187 (note)

The legal prerequisite, which seems to be common to all the decided cases, is that there must be an agreement (contract), formal or informal, which evidences an intention to make the land security for the payment, either of money or an obligation. Walker v. Brown, 165 U.S. 654, 17 S.Ct. 453, 41 L.Ed. 865; Ketchum v. St. Louis County, supra; Chase v. Peck, 21 N.Y. 581; Borden v. Croak, 131 Ill. 68, 22 N.E. 793. In the following case of Smith, Inc. v. Steinberg, Mo.App., 280 S.W.2d 696, 703, the Court, quoting from Jones on Liens, said:

“ ‘An equitable lien arises either from a written contract which shows an intention to charge some particular property with a debt or obligation, or is declared by a court of equity out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings. * * *' "See also Butts v. Broughton, 72 Ala. 294 (mere endorsement on note that it is a charge on land may make it such.)

Further, at page 704, the Court, quoting from Pomeroy’s Equity Jurisprudence, continues :

“ ‘ * * * The theory of equitable liens has its ultimate foundation, therefore, in contracts, express or implied, which either deal with or in some manner relate to specific property, such as a tract of land, * * ” See also Wilkinson v. Tarwater, Mo., 393 S.W.2d 538, 542(2).

The question for determination is: did the instrument which sought to create the lien appropriate and describe with certainty and particularity the real estate intended to be encumbered ? Defendants, of course, answer in the negative, and in support thereof rely upon Schroeder v. Turpin, 253 Mo. 258, 161 S.W. 716; Smith, Inc. v. Steinberg, supra; Hamburg Realty Co. v. Woods, Mo., 327 S.W.2d 138; and Kuppen-heimer and Company, Inc., v. Mornin, et al., 8 Cir., 78 F.2d 261. In the instant case, there was (1) a debt, (2) an agreement or contract, in writing (note and collateral security agreement), (3) the maker did, in fact, own the property at the time of the recordation and (4) an intention on the part of the maker to give a lien on property (paragraph 9 of the collateral security agreement) ; provided that the note and collateral security agreement was recorded.

The Schroeder case holds that a deed executed by defendant is absolutely void when it describes no land at all. In that case, no point of beginning was fixed, and it appeared from both the deed and the testimony offered that it was impossible to identify any land in the County, meeting the description given. Furthermore, the Smith case, also states that there must be an intention to charge some particular property. In that case, plaintiff owned 74 cases of cigarettes which it sought to replevin. Defendant claimed the right to withhold the property because of an equitable lien created by an employment contract in which defendant, as agent, was to receive as compensation one-third of the profits of the business. Defendant cross-claimed seeking a lien and an accounting so as to impress the cigarettes for the amount found to be due. The Court reversed the judgment for plaintiff, which had denied the lien, and ordered it to be retried in accordance with their opinion.

In the Hamburg case, supra, a husband and wife were tenants by the entirety. The wife sought an equitable lien for monies advanced by her during marriage, at the special instance and request of her husband, to pay monthly installments, to make improvements and to make repairs. The husband told the wife that if he did not get the money any other way, he would give it to her when the property was sold. The Court held that this language was merely designed to fix the ultimate time for payment, not an intention to pledge particular property or a fund. In the Kuppenheimer case, supra, Steely Company gave plaintiff its note for $8,500. The President of Steely Company was the grandson of defendant. Defendant guaranteed payment of the note by his endorsement, and further delivered this writing:

“ * * * the undersigned does hereby promise and agree, not to convey or mortgage the real estate now owned by him, wherever situated, until said promissory note and interest * * * has been paid; in the event, however, that said real estate or any part thereof be sold or mortgaged, the undersigned, hereby agrees to pay the proceeds arising from such sale or mortgage, towards payment of said promissory note.”

The Court held, apart from any decision as to whether any real property had been described with particularity, that the above language did not evidence an intention that any real estate was to be held as security for a debt. None of these cases aid the defendant.

More appropriate is Wilson v. Boyce, 92 U.S. 320, 23 L.Ed. 608, where the State of Missouri, to aid the Railway Company, had issued bonds of the State to several railroad companies, and had declared that they shall constitute first liens and mortgages upon the roads and property of the several companies so receiving them. After default, the State bought in the bonds and sold them to grantees under whom Boyce claimed. Wilson, on the other hand, claimed title to the property as a grantee of the trustee to whom the Railway Company had conveyed the land. Wilson, the plaintiff in that action, contended that the language was too general and did not describe with certainty the property pledged. The Court, in construing the words “ * * * bonds of State * * * shall constitute a first lien and mortgage upon the road and property of the several companies so receiving them * * * held:

“The generality of its language forms no objection to the validity of the mortgage. A deed 'of all my estate’ is sufficient. So a deed 'of all my lands wherever situated’ is good to pass title.” (Citing Jackson ex dem. Howell v. DeLancey, 4 Cow. 427; Pond v. Bergh, 10 Paige, 140.)

Another case of like tenor is Ketchum v. St. Louis County, supra, which was for a determination of whether or not St. Louis County had an equitable lien on the earnings of the Pacific Railroad of Missouri. Here, too, the claim of specific appropriation was swept aside, the Court saying:

“ ‘If a debtor by a concluded agreement with a creditor sets apart a specific amount of a specific fund in the hands, or to come into the hands, of another from a designated source, and directs such person to pay it to the creditor, which he assents to do, this is a specific appropriation binding upon the parties and upon all persons with notice who subsequently claim an interest in the fund under the debtor.’ ”

To be gleaned from these two cases “describe with certainty and particularity” or “distinctly appropriated” means that the property, fund, or whatever is to be encumbered must either be identified literally, or so described as to be capable of identification. See DeLeon v. Higuera, 5 Pacific State Reports, 15 Cal. 483, (reference to another instrument in which it is described is sufficient); Wilson v. Boyce, supra. Consequently, in our opinion, the language “shall have a lien * * in any real property or leasehold owned by any maker * * * ” not only sufficiently describes with particularity the real estate sought to be charged but also upon recordation of the note and collateral security agreement there can be no question of appropriation.

Much time was devoted by both sides in arguments and citations of authority on the issue of recordations and acknowledgments pursuant to R.S.Mo. 1959, §§ 442.130, 442.150, 442.260, 442.280, 442.290, and 442.380, V.A.M.S. In our opinion, a decision of these issues is unnecessary to the case. The evidence shows, and we find that defendants, Urbahns, had actual knowledge. Dale A. Urbahns, at the time of acquisition, admitted that at the time of closing he knew that some kind of instrument was of record against the property, although he did not know the legal implications thereof. Besides, the evidence shows that Urbahns’ real estate agent, Ken Smith, ordered the title brought up-to-date and received a document bearing the caption “Commitment to Insure” the title to the property. (Appellant’s Exhibit No. 7) This exhibit showed the note as an exception to the title policy, a defect, objections and charges to be removed, and a lien and encumbrance to be satisfied. Smith testified that he questioned it with the title company. We hold that knowledge of the agent is chargeable to the principal. Hedrick v. Beeler, 110 Mo. 91, 19 S.W. 492; Cooper v. Newell, 263 Mo. 190, 172 S.W. 326. Consequently, we don’t have the issue of innocent third-parties or bona fide purchasers for value without notice. See Smith, Inc., supra, 280 S.W.2d p. 702 (2). Therefore, even if we assume, without so deciding, that in some manner the recordings and acknowledgments were not in substantial compliance with the applicable statutes, this would leave unchanged the respective rights as between the parties and third-party purchasers who had notice. See Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071, wherein it is set forth that acknowledgment' is not a prerequisite to the validity of a deed or to a valid transfer by it of title from grantor to grantee. The purpose of acknowledgment being to admit the instrument to record to protect creditors and subsequent purchasers. Therefore, we hold that the Urbahns were purchasers for value, but inasmuch as they had knowledge of the appellant’s claim, they took the property in question with all its impediments. We further find appellant’s lien to be in the sum of $2,416.08, plus interest.

Appellant claims that the Court committed error in not allowing it an attorney fee pursuant to the note. We recognize, as does the appellant, that attorney fees, unless authorized by statute or by a court of equity in certain cases, are personal in nature and depend upon contract. Duncan v. Townsend, Mo.App., 325 S.W.2d 67. It is true that the note stated, “ * * * The makers * * * in case payment of this note shall not be made at maturity, and * * is placed in the hands of an attorney for collection, they will pay an attorney’s fee of ten percent of principal and interest * * unpaid.” Nevertheless, this is not a suit on the note, but rather a suit to establish and foreclose a lien. Accordingly, we turn to the collateral security agreement, which provides by paragraph 4 as follows:

«(4) * * * said Bank may * * * sell at public or private sale * * any part or all of property * * held by it as collateral security or on which it may have a lien as provided herein * * *.
“From the proceeds of such sale or sales there shall be first deducted the amount of all expenses thereof, including attorney’s fees of said Bank, and the balance shall be applied to the payment of this note and other liabilities of the undersigned to said Bank * *

In our opinion, we construe the language of paragraph 4 “ * * * Bank may sell * * * property * * * on which it may have a lien * * * (and) from the proceeds of such sale or sales there shall be first deducted * * * expenses * * * including attorney’s fees * * * ” to mean that there must first be a sale under foreclosure of the lien. Thereafter, an application can be made to the Court for an attorney’s fee and a determination as to the amount. Accordingly, we hold that appellant’s claim for an attorney’s fee is premature.

Finally, appellant claims that the Court committed error in holding that it was not entitled to a general judgment against Betty M. Shireman as such issue was not before the Court. Lorraine v. E. M. Harris Bldg. Co., Mo.App., 391 S.W.2d 939. Appellant introduced into evidence, (Exhibit No. 6) an authenticated copy of a magistrate judgment against Betty M. Shireman, to-wit: “* * * Judgment in favor of plaintiff for $2,416.08; $338.25 interest; $83.92 atty’s fee, aggregating $2,838.25 and costs.” Betty M. Shireman, in her amended answer, which was denied in appellant’s reply, pleaded her discharge, in bankruptcy. The evidence showed, and the trial court found, that she did file a voluntary petition in bankruptcy on June 27, 1961, and was discharged in bankruptcy on October 2, 1961, and that the note was included in the schedule which showed the magistrate court suit then pending. Appellant admitted the authenticity of the exhibit but objected very generally to its use. If this were a case at law, we would have to hold that appellant’s objection was too general to convict the trial court of error, but since this is a case in equity, it is our duty to pass upon the matter. Fullerton v. Fullerton, 345 Mo. 216, 132 S.W.2d 966, 969(4). Inasmuch as the materiality of evidence is determined by the issues set forth in the pleadings, we rule against appellant as to the exhibit’s admissability. We also hold that the issue as to discharge in bankruptcy was properly before the trial court; hence, we see no reason to convict the Court of error in holding that appellant was not entitled to a general judgment against Betty M. Shireman.

For the reasons herein stated, the judgment entered in favor of defendants, Betty M. Shireman and Marie Stewart, and against appellant is hereby affirmed. It is further ordered that the judgment entered in favor of defendants, Dale A. Urbahns and his wife, Mrs. Dale A. Urbahns, and against appellant be and the same is hereby reversed, and the trial court is hereby ordered to enter a judgment consistent with this opinion.

ANDERSON, P. J., and RUDDY, J., concur.


author: BRADY, Commissioner.

text:
    Doris BERTRAM, Plaintiff-Appellant, v. Clifton WUNNING, Defendant-Respondent.
    No. 32493.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.
    Motion for Rehearing, or to Transfer to Supreme Court Denied June 14, 1967.
    Application to Transfer Denied Sept. 11, 1967.

      Librach & Heller, St. Louis, E. L. Mc-Clintock, Jr., Flat River, Satz & Ponfil, St. Louis, for plaintiff-appellant.
    Roberts & Roberts, Farmington, for defendant-respondent.
   BRADY, Commissioner.

Plaintiff brought this action to recover damages for personal injuries arising out of an automobile collision. The defendant admitted liability and the sole issue tried and submitted was the amount of plaintiff’s recovery. Plaintiff received a verdict and judgment for $7,500.00. Timely after-trial motions being filed, the trial court ordered a remittitur in the amount of $3,-500.00 or, in the alternative, sustained defendant’s motion for a new trial upon seven specified grounds. Plaintiff refused to accept the reduced judgment and this appeal follows.

To fully understand the issues here involved it is necessary to detail some of the background of this case. This appeal results from the second trial of this cause. As in the instant case, at the original trial the defendant admitted liability and the sole issue submitted to the jury was the nature, extent, and amount plaintiff was to receive as compensation for her injuries. Plaintiff then received a verdict and judgment for $5,000.00. Upon appeal by defendant this court reversed that judgment and remanded this cause for a new trial. See Bertram v. Wunning, Mo.App., 385 S.W.2d 803. The issue upon which that appeal turned was the testimony of Dr. Niesen, plaintiff’s treating physician. At that trial Dr. Niesen was asked for his opinion “based upon reasonable medical certainty” as to whether or not the accident caused a hernia which he found present in plaintiff about three months after the accident. His answer was: “It could be. I couldn’t say.” Upon the question being repeated his answer was: “I would say it would be about a 90 per cent chance that it was caused by that and 10 per cent it wasn’t.” When asked whether that percentage was his opinion based upon reasonable medical certainty, he stated, “That’s the only way I could answer such a question.” This court held that Dr. Niesen’s testimony was not substantial evidence of causal connection between the hernia and the accident as required for submission of that issue to the jury. The evidence introduced during the instant trial shows that on April 23rd, 1960, the defendant was traveling at about 30 miles per hour on the wrong side of the road at the time the collision occurred. The automobiles involved hit head-on as a result of which plaintiff was thrown forward, her stomach and chest hit the steering wheel and her head struck upon some unidentified object. She was dazed and was taken to the hospital by ambulance. Dr. Niesen testified that upon examination at the hospital he found plaintiff had a hematoma of the scalp, that plaintiff had extreme difficulty in moving her neck, suffered from tenderness along the bones of the neck, had a large bruise on her chest wall, tenderness of the abdomen, bruises on the abdominal wall, and black and blue marks on her left arm and forearm. His diagnosis was that she was suffering from a brain concussion, hematoma of the scalp, a possible hematoma of the stomach, a whiplash injury of the cervical spine, tearing of the muscles and soft tissue in plaintiff’s neck, and bruises on her left arm.

Appellant was in the hospital for two weeks and was confined to her bed during the first week. During this time she had pains in her chest and stomach and could not eat because of nausea. She continued to have headaches and vomiting and Dr. Niesen called in a neuropsychiatrist, Dr. Mueller, to examine her. His testimony will be referred to later herein. Plaintiff stayed in the hospital for some two weeks when she was discharged by Dr. Niesen. However, after that time she continued to complain of difficulty in moving her neck and of numbness in her arms and legs. On her first visit to Dr. Niesen after her discharge from the hospital she was improved but not well and Dr. Niesen continued to treat her for headaches and arm and neck pains on some twenty or more visits from May, 1960, through October, 1965. It was Dr. Niesen’s opinion that plaintiff would suffer from headaches and pains in her neck, arms and shoulders in the future, that these pains were the result of permanent injuries, and that she would need future medical attention for these reasons.

Dr. Mueller testified that his diagnosis of plaintiff showed whiplash injury to the cervical spine and “traumatic psychoneurosis”. . Dr. Mueller continued to treat plaintiff through May of 1961. His opinion was that her condition was the result of this accident and that she would continue to suffer from traumatic psychoneurosis in the future.

The occurrences that caused the trial court to sustain defendant’s motion for new trial began when plaintiff’s counsel was making his opening statement. He then advisedfthe jury that in treating plaintiff’s injuries her doctor had discovered a femoral hernia. Defendant immediately objected that such an injury was not in the case * * * based upon the testimony of the doctor heretofore given”. Out of the hearing of the jury defendant’s counsel explained that his objection was based upon the doctor’s testimony at the first trial and this court’s ruling upon the appeal from that judgment. The objection was overruled.

The next pertinent incident occurred while plaintiff’s counsel was examining Dr. Niesen. The doctor was asked for his opinion as to whether a scar “caused by a surgical operation is a permanent thing?” An objection was made on the ground there was no showing of any surgical operation. Plaintiff’s counsel stated to the court that there would be such evidence and upon that ground the objection was overruled.

This matter of the doctor’s testimony as to the causal connection between the hernia and the accident came directly into the case in the following manner. Dr. Niesen was asked if plaintiff was readmitted to the hospital after her discharge and upon testifying that she was he was asked to describe the conditions governing that second admittance. The doctor’s answer was, “She had a, uh, left femoral hernia.” Defendant objected to any further examination or evidence regarding this hernia. The trial court overruled that objection whereupon defendant’s counsel requested a voir dire examination of Dr. Niesen. This voir dire is lengthy and it will serve no useful purpose to set it out in full in this opinion. It is sufficient to state that as a result of that voir dire examination it appeared that if allowed to do so Dr. Niesen intended to testify that, within reasonable medical certainty, he was of the opinion that the hernia was caused by the accident. Further voir dire revealed the fact that it was the doctor’s opinion that a 90 percent chance that the hernia was caused by the accident was, in his opinion, reasonable medical certainty that it was so caused. Defendant’s counsel then moved the court to declare a mistrial because of the prejudicial effects of the remarks concerning the hernia. That motion was overruled but the trial court sustained defendant’s request that the jury be instructed to disregard the question of plaintiff’s hernia in their deliberations. The jury was returned to the courtroom and addressed by the court as follows: “BY THE COURT: Ladies and gentlemen of the Jury, a motion has been made and sustained by the Court to strike from your consideration any question about a hernia that the plaintiff may have sustained or allegedly have sustained as a result of this accident. I must now direct you and instruct you that in your deliberations you must not consider in any way any question as to whether or not the plaintiff sustained a hernia or a ■ rupture as a result of the accident in question. You may proceed gentlemen.” Plaintiff’s counsel then, again out of the hearing of the jury, questioned Dr. Niesen and the following questions were asked and answers were given in a manner which we will take as an offer of proof as to what the witness would testify with regard to causation of hernia if he had been allowed to do so. “BY MR. BYRNE: I wanted to make sure my record is in good shape, Your Honor, in regard to this point. Doctor, assume if you will that in this accident of April 23rd, 1960, Mrs. Bertram had a blow to her abdomen; assume, if you will, that in the course of her hospitalization she experienced pain and distention in her abdomen; and assume further, if you will, that at the time she experienced that pain from that time until she was discharged from the hospital, then on July 19, 1960, you found a femoral hernia; I will ask you to state, Doctor, if you have an opinion, based upon reasonable medical certainty, as to whether or • not the accident I have described; that is, her being struck in a head-on collision, being thrown forward and striking her abdomen, having pain in her abdomen and discoloration of her abdomen, and this distention; whether or not such an accident I’ve described is a competent producing cause of the femoral hernia which you found present in Mrs. Bertram on July 19th, 1960? A. Within reasonable medical certainty, yes. Q. All right. BY MR. BYRNE: That’s all I have. BY MR. ROBERTS: Q. Doctor, did you just testify a few minutes ago before this Court under oath, without the aid of a Jury, that in your opinion that you were basing this on a 90-10 percentage the same as you did in the other trial ? A. To me that’s reasonable medical certainty. Yes, sir. Q. And you are basing your answer of reasonable medical certainty on a 90-10 percentage? A. No. My reasonable medical certainty is a 90-10 percentage. You have it reversed.” (Emphasis supplied.)

During plaintiff’s counsel’s closing argument the following occurred: “ * * * Mr. Roberts mentions Dr. Niesen, certain visits. If you recall, we had a recess this morning and when you returned to the courtroom the Court instructed you that you must dismiss from your mind certain medical testimony that was in this case. Dr. Niesen said he could only give certain dates because the other dates were tied in with this other medical problem which the Court has decided you could not consider. Mr. Roberts — * * There was an objection to which the court stated: “BY THE COURT: The jurors are the judges of the facts. Proceed.” There was no other ruling by the court.

The grounds upon which the trial court sustained the motion for new trial are to be gleaned from the trial court’s sustention of certain specified paragraphs in the motion for new trial based on the theory that the references to the defendant’s hernia were improperly admitted. In essence, the plaintiff’s theory upon appeal is that the evidence- with regard to the hernia was improperly excluded with the result that the rulings of the trial court which it later held erroneous were actually not and thus could not have prejudiced the defendant as to justify the granting of a new trial. She also contends that this verdict is amply supported by evidence of plaintiff’s injuries excluding the hernia and therefore cannot be held excessive.

Two other grounds stated in the motion for new trial and sustained by the trial court are in fact .restatements of the same contention; i. e., that “plaintiff’s counsel deliberately, knowingly and falsely deceived the court” by statements with regard to what his evidence would show as to the causal connection between the hernia and the accident.

It is well settled that if any ground in a motion for new trial sustained by the trial court is well taken, the trial court’s action granting the motion is to be affirmed. Dugdale Packing Co. v. Lowden, Mo.App., 160 S.W.2d 832, 1. c. [7] 838. Considering the last two stated grounds dealing with the allegation in the motion for new trial that plaintiff’s counsel deliberately, knowingly and falsely deceived the trial court, we find nothing in this record to justify such a sweeping denunciation of plaintiff’s counsel’s motives. All that this record shows is that plaintiff’s counsel thought he had evidence that would justify his statements with regard to a hernia and on that basis attempted to introduce such evidence and to make further remarks informing the jury as to the existence of this hernia and its causation by the accident. There is no evidence whatever nor any inference of any deliberate, knowingly false statements to the court. The transcript does show that plaintiff’s counsel disagreed with his opponent and with the court as to certain rulings made by the court with regard to evidence of this hernia but his position was based upon his contention Dr. Niesen’s testimony should have been allowed and constituted sufficient evidence of causal connection between the accident and the hernia. There was nothing discourteous in his remarks and his position in this regard cannot be said to sink to the level of a deliberate false statement knowingly made to deceive the trial court. Moreover, as will later be held herein, plaintiff’s counsel’s interpretation of the law was the correct one. Under such circumstances these assigned grounds of the motion for new trial do not justify the granting of a new trial.

Except for the issue of excessiveness the other grounds for new trial contained in defendant’s motion and sustained by the trial court are based solely on the issue as to the admissibility of the evidence with regard to the hernia. Dr. Niesen’s testimony in the instant case materially differs from that he gave at the first trial. In the instant case his reply to the hypothetical question as to causal connection was not couched in terms of “could be” or “I couldn’t say” but was a definite affirmance that within “reasonable medical certainty” his opinion was the accident caused the hernia. What the phrase “reasonable medical certainty” meant to Dr. Niesen is a matter going solely to the weight to be given his testimony and not to whether such testimony constitutes sufficient evidence of a causal connection between the hernia and the accident.

The only ground sustained by the trial court remaining is that the verdict was excessive. In Missouri excessive verdicts fall into two categories; i. e., (1) verdicts reflecting what has been characterized as “simple excessiveness”, and (2) verdicts reflecting excessiveness by misconduct. The first is the result of an honest mistake by the jury so that the sum awarded is disproportionate under the rule of uniformity. Errors of this nature should be cured by enforced remittitur thus avoiding the delay and expense incident to re-trial. The latter type of excessive verdict usually savors of bias and prejudice engendered during trial. A verdict of this nature cannot be cured by remittitur and necessitates a new trial. Moore v. Glasgow, Mo.App., 366 S.W.2d 475,1. c. 478, and cases there cited. By sustaining Paragraph 13 of the motion for new trial the trial court clearly regarded the verdict in the instant case as one of simple excessiveness. This is made clear in view of the language in that paragraph referring to the lack of sufficient evidence to support the verdict. Moore v. Glasgow, supra. It is further made clear by the fact the trial court refused to grant a new trial upon the grounds alleged in another paragraph of defendant’s motion wherein the verdict was referred to as “so excessive as to shock the conscience of the Court and so excessive as to show bias and prejudice against the defendant * * Accordingly we are here concerned with whether or not a remittitur should be ordered and not with a situation where the excessiveness, if found, would require a new trial.

In this connection the trial court’s admonition to the jury is to be kept in mind. Therein they were specifically directed to strike from their consideration any question of the hernia and not to consider in any way whether plaintiff sustained a hernia as a result of this accident. Plaintiff contends the jury did obey this admonition and, in arriving at their verdict, confined themselves solely to plaintiff’s other injuries. The evidence as to these indicates that plaintiff suffered a brain concussion which caused continued vomiting and headaches; was confined to the hospital for two weeks, the first week of which she spent in bed; suffered a whiplash injury of the cervical spine; that certain muscles and soft tissue in appellant’s neck were torn; and suffered from traumatic psychoneurosis as a result of this accident. It further appeared that plaintiff would suffer from continued headaches and pain in her neck and arm; that the pain she would suffer was a result of permanent injuries which she had incurred and which would require medical attention in the future; that her traumatic psychoneurosis would continue in the future; and that at the time of trial, some five years after the accident, plaintiff still suffered from pains, headaches and dizziness.

It is well established the trial court has broad discretion in sustaining a motion for new trial upon the ground of excessiveness. In determining that the verdict is excessive the trial court is weighing the evidence and in effect the grant of a new trial for that reason is the same as though the new trial was granted upon the ground the verdict was against the weight of the evidence. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566; Union Electric Co. v. McNulty, Mo., 344 S.W.2d 37. Accordingly such a ruling by the trial court will not be overturned absent a clear abuse of discretion. Union Electric Co. v. McNulty, supra; State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654. The trial court was present at the trial and heard the testimony of the witnesses as well as having the opportunity to observe them. This court might not have reached the same conclusion as to the ex-cessiveness of this verdict. Compare Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, where we affirmed an award of $7,-500.00 although the injuries were .seemingly less severe but there was evidence of medical expenses and property damage; elements of damage which are absent from the instant record. Nevertheless each case must stand upon its own facts and we cannot say the trial court’s action was such an abuse of discretion as to require our interference.

We therefore hold that the trial court must be affirmed in its action in granting a new trial. Since the issue of damages was the only thing tried, the defendant having admitted liability, the new trial must of course be confined to that issue.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The trial court is affirmed in its action in granting a new trial which of course must be confined to the issue of damages.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


author: DOERNER, Commissioner.

text:
    STATE of Missouri, at the Relation, and to the Use of BLACKBURN MOTOR COMPANY, a Corporation, Plaintiff-Appellant, v. Orion J. LITZINGER, and The Travelers’ Indemnity Company, a Corporation, Defendants-Respondents.
    No. 32728.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.
    Motion for Rehearing, or, to Transfer to Supreme Court Denied June 14,1967.

      W. W. Sleater, Suelthaus & Krueger, St. Louis, for plaintiff-appellant.
    Lovell W. George, St. Louis, Joseph B. Moore, County Counselor, Ernest L. Keath-ley, Jr., Asst. County Counselor, Clayton, for defendants-respondents.
   DOERNER, Commissioner.

This is an action against the sheriff of St. Louis County and the surety on his official bond to recover damages of $5,500. Defendants’ individual motions to dismiss plaintiff’s petition were sustained, but although the court’s order recited that such dismissal was without prejudice plaintiff chose to appeal, as sanctioned by Hase-meier v. Smith, Mo., 361 S.W.2d 697. The Supreme Court, to which the appeal was taken, ruled that it did not have jurisdiction because of the amount involved and transferred the cause to this court.

The present action arose out of an attachment suit instituted by plaintiff in the Circuit Court of St. Louis County against the Benjamin Motor Company, a non-resident corporation, on November 7, 1958. In aid of said attachment a writ of garnishment was issued and one of defendant Litz-inger’s deputies attempted to serve the writ of attachment and the notice of garnishment on the Ford Motor Company. In his return, dated December 16, 1958, he stated that he had executed the writ by serving the secretary to Ford’s plant controller. Ford moved to quash the attachment on the ground that the service had not been made on an officer of the Company designated in Section 525.050, RSMo 1959, V.A.M.S., which motion the court sustained. On plaintiff’s appeal we upheld that ruling, Blackburn Motor Company v. Benjamin Motor Company, Mo.App., 340 S.W.2d 155. Thereafter, on March 14, 1961, plaintiff filed his first suit against the defendant sheriff and the surety on his bond, which was terminated when plaintiff took a voluntary nonsuit without prejudice on May 25, 1964. This present or second suit was begun by the filing of plaintiff’s petition on January 18, 1965.

In its order sustaining the defendants’ motions to dismiss the trial court did not specify the grounds upon which it based its ruling. Preliminarily, for the purposes of focusing upon the issues presented, it should be said that both defendants pleaded the three year statute of limitations, § 516.130, RSMo 1959, V.A.M.S., as a bar to the maintenance of the present suit and on the authority of Palmer v. Crane, 8 Mo. 619 and 9 Mo. 269, defendants maintain that the period of limitations began to run on December 16, 1958, when the return was filed in the garnishment proceedings. Neither agreeing or disagreeing to that date as effective, plaintiff points out that its first action was begun on March 14, 1961, well within such three year period, that its present or second action was filed within one year from the termination of the first, and that the running of the statute was therefore arrested by the savings provision of § 516.230. That section provides, in effect, that if a plaintiff commences an action within the applicable period of limitations and suffers a nonsuit he may commence a new action within one year after such nonsuit was suffered. Both plaintiff and the defendants agree that the savings provision of § 516.230 applies only when the cause of action pleaded in the second suit is the same as the cause of action alleged in the first suit. Foster v. Pettijohn, 358 Mo. 84, 213 S.W.2d 487; Halloran v. Hackmann, Mo., 160 S.W.2d 769. Thus the issues on which the parties are in sharp disagreement are narrowed to these: (1) Whether the cause of action alleged in plaintiff’s present petition is the same as that pleaded in its first petition; (2) Whether plaintiff “suffered” a nonsuit within the meaning of that word as used in § 516.230; and (3) Whether plaintiff’s present petition states a claim upon which relief can be granted.

To set out the two petitions for the purposes of comparison would unduly lengthen this opinion and would serve no useful purpose. The only dissimilarity pointed out by defendants is one additional paragraph which appears in the second petition but not in the first. We have carefully compared the two pleadings and except for the paragraph noted find that the allegations in both are the same, practically word for word. In brief, plaintiff pleaded the institution of the attachment suit, the garnishment proceedings, the attempted service on Ford, the quashing of the same, the results on appeal, and that it had thereby lost the opportunity to recover the amount due it by Benjamin Motors. The essential prayer in both was for damages of $5,500, plus interest and costs. The additional paragraph which appears in the second petition but not the first, numbered 14, contains the allegations that on September 4, 1964, plaintiff obtained a judgment for $16,000 and costs against the Benjamin Motor Company in the Circuit Court of the 20th Judicial Circuit at St. Clair, Illinois, “ * * * covering the matters alleged in the Petition in Attachment filed in the Circuit Court of St. Louis County on the 7th day of November, 1958.”

In determining whether the cause of action pleaded in the second suit is the same as that alleged in the first the same tests are applied as are used in determining whether a pleading is an amendment or a departure. Halloran v. Hackmann, Mo., 160 S.W.2d 769; St. Charles Savings Bank v. Thompson, 284 Mo. 72, 223 S.W. 734. Defendants concede that the cause of action alleged in plaintiff’s first petition was based upon Litzinger’s alleged failure to serve the garnishment upon Ford but they argue that because of the inclusion of paragraph 14 the present action is a suit upon the Illinois judgment and therefore a different cause of action. The fallacy of that argument is readily apparent. According to the petition, plaintiff obtained a judgment in Illinois against Benjamin Motor Company. It could scarcely enforce that judgment by a suit in Missouri against defendant Litzinger and his surety, and considering the present petition as a whole it is obvious that plaintiff is not attempting to do so. Plaintiff may have included the paragraph regarding the intervening Illinois judgment obtained against Benjamin Motor to support its prior allegation that at the time Litzinger failed to properly serve the garnishment Benjamin was legally indebted to it. But whatever may have been its reason for including paragraph 14, the rule is that only the causes of action in the two petitions must be the same, not the manner in which they are pleaded. Norton v. Reed, 253 Mo. 236, 161 S.W. 842. And from a comparison of the first and second petitions it is crystal clear that the cause of action pleaded in both is precisely the same, Litzinger’s alleged failure to serve the garnishment on Ford.

The second issue presented would ordinarily require a construction of the phrase, “suffer a nonsuit” which appears in § 516.230. Pointing to § 537.100, in which the words, “take or suffer a nonsuit” are used, defendants engage in a lengthy semantical discussion of the distinction between the words “take” and “suffer,” and contend that because only the latter is used the savings provision of § 516.230 is effective only when the nonsuit results from an adverse ruling of the court, as an involuntary nonsuit or an order of dismissal. And they conclude that since in this case plaintiff took a voluntary nonsuit in its first action it is not entitled to the benefit of § 516.230. However, the fatal weakness in defendants’ position is that the same argument has been repeatedly made, and just as frequently rejected by our Supreme Court, in a long line of cases beginning with Shaw v. Pershing, 57 Mo. 416, decided in 1874. Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 129 A.L.R. 829; Thompson v. Farmers’ Exchange Bank, 333 Mo. 437, 62 S.W.2d 803; St. Charles Savings Bank v. Thompson, 284 Mo. 72, 223 S.W. 734; Norton v. Reed, 253 Mo. 236, 161 S.W. 842; Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954; Hewitt v. Steele, 136 Mo. 327, 38 S.W. 82; Briant v. Fudge, 63 Mo. 489.

In both the first and second petitions plaintiff alleged that at the time -it filed the attachment suit, at the time defendant Litzinger attempted to serve Ford, and until the 28th of November, 1958, Ford had assets in its possession “belonging” to Benjamin Motor of a true value in excess of the amount sought by plaintiff, and that as a result of Litzinger’s actions plaintiff lost the opportunity to recover the amount due it from Benjamin Motor. Defendants quote Black’s Law Dictionary, 4th Ed., p. 198, to the effect that the word “belong” has two general meanings, (1) ownership; and (2) less than ownership, i. e., less than an unqualified and absolute title, such as the absolute right of user. Basing their argument on the second of such meanings they contend that plaintiff would not have been successful in prosecuting its garnishment proceedings against Ford because the assets which Ford had belonging to Benjamin Motors might have been incumbered; that it was incumbent upon plaintiff to prove that such assets were unincumbered; and that since plaintiff had to prove that fact it had to plead it. By this line of reasoning they reach the conclusion that plaintiff’s petition does not state a claim upon which relief can be granted. The rule is that in determining the sufficiency of a petition to state a claim upon which relief may be granted the averments are to be given a liberal construction and the petition accorded those reasonable inferences fairly indulged from the facts stated. Royster v. Baker, Mo., 365 S.W.2d 496; Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52. In accordance with that rule we think the first of such meanings, that of ownership, must be ascribed to the word “belonging” in the sense in which it was used in plaintiff’s petition. Black, pp. 1260-1261, defines “ownership” in turn, to mean “ * * * The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal allowed by law.” So construed, we are of the opinion that the petition stated a claim upon which relief may be granted. We agree, however, that plaintiff could have no greater rights than Benjamin Motor. Company had, and that in order to make a submissible case plaintiff will be required to show facts which would have enabled Benjamin Motor Company to have maintained a suit against Ford for such assets. Cusick v. Cusick, Mo. App., 201 S.W.2d 437; Mississippi Valley Trust Co. v. Francis, Mo.App., 186 S.W. 2d 39.

For the reasons stated the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment reversed and cause remanded.

ANDERSON, P. J., RUDDY, J., and THEODORE McMILLIAN, Special Judge, concurs.

WOLFE, J., not participating.