author: PRITCHARD, Commissioner. PER CURIAM:

text:
    Margaret Weidman Jones ROOKSTOOL, Appellant, v. Joseph NEAF, Administrator of the Estate of Fred Weidman, Deceased, and Marian Frances Long, Respondents.
    No. 50092.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.

      James C. Moloney, St. Louis, for plaintiff-appellant.
    George E. Murray and Frank C. Boland, Clayton, for defendants-respondents.
   PRITCHARD, Commissioner.

Plaintiff, as the former spouse of decedent, Fred Weidman, sought specific performance of an alleged oral contract, made just prior to their 1952 divorce, that each of them would keep their existing mutual and reciprocal last wills and testaments in force and not revoke them. ' Decedent and the plaintiff did not personally revoke their wills, but § 474.420 (all statutory references are to RSMo 1959, V.A.M.S.) below set forth, in terms revokes provisions in a will executed prior to the divorce for a divorced spouse. From an adverse judgment of the trial court, plaintiff appeals. The issues concern whether plaintiff has shown sufficient part performance upon her part to remove her alleged parol agreement from the operation of the statute of frauds, § 432.010, and the application of said revocation statute to the facts of this case.

The estate of decedent consists of real estate inventoried and appraised at $53,500, and some personal property carried by the public administrator on his January 8, 1962, settlement at $3,110.50. We have jurisdiction of this appeal by reason of title to real estate being involved between the plaintiff, as promisee under said alleged oral contract, and the defendant, Marian Frances Long, as sole heir of decedent. Mo.Const. Art. V, § 3, V.A.M.S.

Plaintiff relies upon her alleged oral contract to circumvent the provisions of § "/74.420, which read:

“If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced, are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. With this exception, no written will, nor any part thereof, can be revoked by any change in the circumstances or condition of the testator.”

The evidence which was adduced by plaintiff, the defendants having introduced none but having stood upon their motion for judgment at the close of plaintiff’s case, is as follows: Plaintiff and decedent were married in St. Louis, Missouri, on February 23, 1934. On March 3, 1938, they each executed their last wills and testaments by which they each left all of their property to the other. Both of these wills remained unrevoked by the parties until decedent’s death which occurred on June 14, 1957 (after the January 1, 1956 effective date of § 474.420). On July 5, 1957, decedent’s will was duly admitted to probate in the Probate Court of St. Louis County, Missouri. Neither of the wills of plaintiff and decedent makes a reference to any contract nor to the other will, but both merely leave all property, real, personal and mixed, wherever the same may be situated, and which each might own at the time of death, absolutely -and unconditionally to the other spouse. Each spouse is reciprocally named executor and executrix of the wills, and the attesting witnesses are the same on each.

On March 28, 1952, at plaintiff’s instance there was a divorce suit pending between plaintiff and decedent, in which he had filed a cross-petition for divorce. On that date they entered into a written property settlement agreement which was signed by each of them and their respective counsel in the suit. Under this written agreement plaintiff was paid $12,000 and in turn by deed she released her interest in certain real estate which had been owned by the parties as tenants by the entirety. It was stipulated in the agreement that “[I]t is contracted and agreed that upon the execution of this agreement (or upon the conveyance of the real property and payment of the $12,000 as alimony in gross) * * * [it] shall constitute the full and complete payment and settlement of any and all claims which they have against each other arising out of their marriage, including all claims for dower and other statutory allowances of every kind and description.” Decedent later withdrew his cross-petition for divorce and on April 18, 1952, plaintiff was granted a decree of divorce upon her petition. Thereafter, on or about October 22, 1953, plaintiff was married to one Eugene Dunnigan from whom she was later divorced.

Luther B. Jones, plaintiff’s father, testified in her behalf. He and his wife, plaintiff’s mother, lived with plaintiff and decedent up to the time of their divorce. Mr. Jones was present when decedent and plaintiff had a conversation regarding the divorce settlement the day before the decree of divorce was granted. Plaintiff then said that she was dissatisfied with the amount of the settlement she was getting. She said she had sold her grocery store and meat market on Woodson Road and mortgaged her home for $6,000 to go into the tavern (on Woodson Road near Page Avenue, which tavern was owned by decedent at the time of his death). According to plaintiff the settlement was not enough compensation for her to accept and to live ; she was losing too much money. Decedent then said, “Well, Margaret, I know it’s worth more. I know you should get more, but, I borrowed all the money that I can borrow and the only way I can get up any more is to sell the place. I don’t want to do that.” Both plaintiff and decedent then agreed that they did not want to sell the tavern to raise any more money, and that each of them would leave a will — she had a will made to decedent and he had a will made to her, and each agreed not to change the wills, but to let them stand “as. is” so that they might some day-one or the other get the property. After the divorce and on the same day thereof decedent handed Mr. Jones both wills and asked him to take care of them. Mr. Jones then put the wills on the dresser and one or two days thereafter he put them in the bank with his other valuable papers, where the wills remained until decedent’s death. He then gave both wills to the plaintiff. Decedent never did ask Mr. Jones to return the wills to him. The day before decedent died Mr. Jones saw him in the hospital. At that time, decedent said to him, “I want you to take care of those wills. * * * You know that Marge and I had agreed to that neither one of us would change the will and we’d keep the property intact in case of either one’s death.” Mr. Jones testified further that decedent knew that after her divorce from him plaintiff married Gene Dunnigan, whom decedent knew, and that they had a divorce. Decedent also knew of plaintiff’s prior marriage to a person by the name of Castein or Cansten and that she divorced him several months before she married decedent.

Mrs. Thelma Bornefeld, sister of plaintiff, testified that she .had a conversation with decedent in her driveway in the spring of 1956 in which he asked about plaintiff as he always did, and then said further, “Well, I sure wish she would come back. I still love her. That will is never going to be changed. It’s going to stand the way it was made out”; and “I’ll never change that will.”

Mrs. Mary Roberts, another sister of plaintiff, testified that she (being then eighteen years of age) was present when plaintiff and decedent made their wills on March 3, 1938, at which time “they said they wanted that will to stand as was regardless of what happened at any time to either one of them until death because they, they were^ — -felt sure that nothing would ever —On further direct examination, Mrs. Roberts testified that Fred and Marge (decedent and plaintiff) then said the will would never be changed. It would remain the same. In Mrs. Roberts’ presence, plaintiff and decedent had discussions regarding the wills both before and after the divorce. Several days prior to the divorce a discussion took place in the kitchen of the home at 3016 Woodson Road where Mrs. Roberts was also staying. Those present were her father and mother, plaintiff, decedent and Mrs. Roberts. They were discussing getting the divorce and talking about the settlement. Decedent said he didn’t think he would be able to get enough money without selling the tavern and plaintiff said she would rather he would not sell it. Decedent then said he did not want to sell, so he said, “Let our wills remain as we stated before — until—until death. We won’t change them.” Plaintiff agreed to that. After the divorce was had, there was the same type of discussion and decedent gave Mr. Jones the wills to keep and said, “Pop, you keep these wills in case anything would ever happen. You keep them. If anything would ever happen, I want this to stay this way the way we agreed.” Mrs. Roberts saw decedent hand her father the two wills/ and her father put them in the bedroom in the chest of drawers. Thereafter, Mrs. Roberts frequently talked to decedent — they were fairly close. In the spring of 1956 decedent came to her house, and he said, among other things concerning his good feelings toward plaintiff, that he wanted the wills to remain the same; and “Now that will will never be changed. That’s the way I wanted it.” At that time decedent was not well and was talking all the time about going to the doctor. Then the day before decedent died at the hospital, Mrs. Roberts took her father up to see him. At that time decedent remarked that he wanted Mr. Jones to have the money he owed him (Mr. Jones and his wife had filed a claim or claims against decedent’s estate for money he allegedly owed them). Decedent said further, “You remember that will? I don’t want that will to be changed. I want it to stay as it is. The will is to remain the way it is.” Mrs. Roberts testified further that decedent knew about plaintiff’s marriage to and divorce from Gene Dunnigan.

William Buddemeyer, a social friend of plaintiff, testified that he had heard decedent discuss his will at the Woodson Road tavern in 1954 on an occasion when plaintiff and her then husband, Dunnigan, were present therein. Decedent then made the statement that he was sorry to see plaintiff get married but “as far as the will when he was still living the will as it was left everything to her if anything ever happened to him.” This statement was made when decedent, Cecil Paul, Johnny Shaner and Mr. Buddemeyer were sitting at a table and plaintiff, with her husband, was sitting at the bar. On other occasions, in 1953, decedent came to the tavern and told Mr. Buddemeyer that, “I hope she (plaintiff) gets along all right. I’m still going to leave her this place, everything I got if I was to die. The will is going to stay like it is.” Later in 1954, decedent told Mr. Budde-meyer, Shaner and Paul (who frequented the tavern) that he was going to leave everything to plaintiff. He again discussed his will with Mr. Buddemeyer in 1955.

It has been held that an agreement not to revoke a will is, in effect, the same as an agreement to make a will and must be in writing. 49 Am.Jur., Statute of Frauds, § 215, p. 539; West v. Day Trust Co., 328 Mass. 381, 103 N.E.2d 813, 816, 29 A.L.R.2d 1224 quoting from Cazaurang v. Carrey, 117 Cal.App. 511, 4 P.2d 259, 261, where that court gave the reason for the rule: “ Whether an agreement be to make a will or whether it be not to revoke one already made, the essence of the agreement is to have a will in existence at the time of the death of the promisor which designates the promisee as a beneficiary in accordance with the agreement.’ ”

“The great weight of authority is to the effect that mutual wills, made by separate instruments, do not afford sufficient evidence that the wills were made pursuant to a contract, and that, hence, if the contract is shown at all, oral evidence is necessary.” Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 929; 43 A.L.R. 1027; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027, 1030 [3]. There is no evidence in this case which would tend to show an agreement between plaintiff and decedent to make (and not revoke) their wills at the time they were executed on March 3, 1938. They said merely that the wills would remain the same and would never be changed. The wills themselves do not refer to any contract or to each other, and are therefore no evidence of an agreement made at any time. Thus, plaintiff’s case depends entirely upon the parol agreement that the parties would not revoke their existing wills made just prior to her divorce from decedent, and to that agreement defendants have interposed the defense of the statute of frauds, § 432.010. The question now is: Does plaintiff have any performance of her part of the parol agreement which would remove it from the operation of the statute of frauds?

We have been cited to no authority in this state, and we have found none, involving the question of whether the mere leaving of a will unrevoked to the time of the death of the other party to the oral contract not to revoke the mutual, reciprocal wills is a sufficient performance to remove such agreement from the operation of our statute of frauds. The evidence shows that both the plaintiff and decedent did not personally revoke their mutual wills, and of course any such revocation occurred by operation of the statute, § 474.420, supra, which has the same effect as if they had voluntarily made a revocation of their wills. The only thing which would save the benefits of these statutorily revoked wills to either the decedent (had he been the survivor) or to the plaintiff is an enforceable contract made between them not to revoke the wills.

There is in this case no clear and convincing evidence that at the time of the written property settlement agreement, an incident of the divorce, on March 28, 1952, between plaintiff and decedent, that there was anything which induced her to sign it to her detriment (i. e., that she gave up the right to insist upon more being given to her under the property settlement agreement in reliance upon decedent’s promise to leave her all of his property by will). Plaintiff’s father testified that the oral discussion took place the day before the divorce, April 18, 1952; and her sister testified that the discussion took place several days before the divorce. Therefore, the mutual promises of plaintiff and decedent stood alone and were not collateral to or a part and parcel of the written property settlement agreement which if so might bring the oral agreement within the rule that “acknowledgments in a written contract may be superseded by oral promises which induce the signing of the contract.” 17A C.J.S. Contracts § 323, p. 217. Thus, there can be no valid theory in this case that part performance may be found in an inducement to execute the written property settlement agreement which would estop the defendants from effectively pleading the statute of frauds.

We look now to ascertain if there was any valid performance of the parol agreement by the fact that plaintiff left her will personally unrevoked by her up to the time of decedent’s death. Proceeding upon the sound premise above set forth that an agreement not to revoke a will is the same as an agreement to make a will, we find in 49 Am.Jur., Statute of Frauds, § 215, p. 540, the statement, “The rule that an oral agreement to devise land is invalid includes an agreement that each of the parties shall make a will devising land in favor of the other or to a third person.” In 49 Am.Jur., Statute of Frauds, § 522, p. 820 (see also the pocket part to this section), it is said, “In case of agreements to make mutual or reciprocal wills, the fact that the plaintiff made a will which was not revoked at the time of the death of the other party has been held by some, although not all, authorities not to be such part performance as to take the promise of the other party out of the operation of the statute.” In the there cited case of Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 930, also reported and the subject annotated in 43 A.L.R. 1020, the court refused to grant specific performance of an oral contract between two adjoining property owners to devise by will the lot of the one who first died, so that the survivor might have two lots upon which to build, one lot being too small for that purpose. The wills were executed, reciprocally devising the respective properties of each party to the other. Later, deceased made a new will revoking the reciprocal will to plaintiff. The court said, “The only performance that is claimed in the case at bar is the fact that the plaintiff executed the will in pursuance of the contract which he claims was made, and that he left his will in the custody of a third person. A similar situation is disclosed in the case of Gould v. Mansfield, supra (103 Mass. 408, 4 Am. Rep. 573), in which the court said merely: ‘There has been no part performance which amounts to anything.’ A like situation, too, was disclosed in the case of Hale v. Hale, supra (90 Va. 728, 19 S.E. 739), and the court said: ‘The equitable doctrine of part performance is also invoked; but as to this, we may say, as was said in a similar case in Massachusetts, that “there has been no part performance which amounts to anything.” ’ ” (Parenthetical citation added.) In the Ihmsen case, supra, the case of Gooding v. Brown, 35 Hun (N.Y.) 148, is quoted: “ ‘Nothing can be regarded as requisite part performance to take such agreement out of the operation of the Statute of Frauds, which does not place the party seeking relief in a situation which is a fraud upon him, unless the execution of the contract be required in his behalf and for his protection. * * * The agreement here was executory; no rights of property could vest until the devise and bequest became effectual by the decease of the party making the will. The fact that the plaintiff executed a will does not establish performance of the contract on his part so as to divest himself of any rights of property, nor did it place him in a situation from which he could not retreat without prejudice to any rights existing at the time the agreement was made. The revocation by Wells Gooding of his will was a mere failure on his part to transfer his property by will to the plaintiff. The latter lost nothing by the agreement or by any part performance of it, he simply failed to acquire by devise the estate of his brother. The element of fraud which equity will recognize in support of the right to execution of a contract within the statute, does not appear in this case.’ ” See also McClanahan v. McClanahan, et al., 77 Wash. 138, 137 P. 479; De Moss v. Robinson, 46 Mich. 62, 8 N.W. 712, 41 Am.Rep. 144; and 102 A.L.R. 491.

We are not persuaded by the reasoning in Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757, 759, where the facts showed that an aged aunt and her niece made mutual and substantially reciprocal wills pursuant to an oral contract therefor. The niece made a different provision by will and her estate consisted of personal property only. The court granted specific performance of the oral contract to the plaintiff aunt, saying: “If the plaintiff had died before Mrs. Neb-lett, she would have received at least as much as $10,000 from the plaintiff’s estate. She therefore had the benefit of what might be termed the ‘risk’ from 1892 until 1897.” Nor do we, under our statute of frauds, subscribe to the rule in Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 188, where the court said, “[i]n this case we think there was not only part performance by the plaintiff, but that the performance by her of her part of the agreement was a complete performance. She at once executed the will provided for in her agreement with her husband, and never receded from it, * * That case may be distinguished in part by the unique provisions of the Nebraska statute of frauds that the statute must “not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law” and “Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreement in cases of part performance.” We note also from the facts in Brown v. Webster, supra, that both before and after the oral agreement for mutual wills that the husband had in his own name taken charge of and failed to account for certain portions of the plaintiff’s separate property.

Other cases upon the proposition of enforcement of oral agreements not to revoke mutual wills, where the survivor is claiming part performance by the fact that he left his own will unrevoked up to the time of death of the other party, place the denial of relief upon the ground that the wills being ambulatory in nature, the execution of such an instrument does not in itself change the position of either party. 169 A.L.R. 45. See also, annotation in 29 A.L.R.2d 1233, where the conclusion of the court in the case of Cazaurang v. Carrey, 117 Cal. App. 511, 4 P.2d 259, is set forth, “No performance, full or otherwise, appeared of the subsequent agreement not to revoke the will already made, stating: ‘In no manner has this agreement been executed, and in fact it could hardly he fully executed prior to the death of the party making the will.’ ”

We rule that there was no part performance in this case from the fact that plaintiff left her will unrevoked up to the time of decedent’s death. The rules announced in the Ihmsen case, and cases therein cited, supra, are applicable with force here: “There has been no part performance which amounts to anything.” There is no fraud here upon plaintiff from which equity would relieve her. She did not change her position with respect to any of her separate property either at the time of the oral agreement or after her divorce was granted from decedent. She was not placed in a situation from which she could not retreat without prejudice to her rights existing at the time of her oral agreement. Plaintiff and decedent each continued to hold their separate properties after the divorce, and all that plaintiff had was an expectancy that she might take decedent’s property under his will. Plaintiff’s oral promise from decedent is within our statute of frauds, § 432.010, the purpose of which is to prevent the enforcement of oral contracts such as this. Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028.

We consider now the applicability of the revocation statute, § 474.420, supra. Prior to the enactment of this statute, which became effective January 1, 1956, as a part of our 1955 Probate Code, divorce did not revoke a provision in a will executed prior to the divorce for a divorced spouse. See Robertson v. Jones, 345 Mo. 828, 136 S.W.2d 278. In plaintiff’s brief, under Point IV, she recites the provisions of Laws 1955, p. 385, relating to the effective date and governing procedure of the Probate Code, and does not set forth any reason why § 474.420 should not here apply. Such point does not comply with Supreme Court Rule 83.05(e). However, defendants have cited the applicable rule in the case of In re Ziegner’s Estate, 146 Wash. 537, 264 P. 12. There the parties were married in 1910, executed mutual wills in favor of each other in 1912, were divorced in 1916, and in 1917 the state of Washington enacted a revocation statute similar to § 474.420. The court held that although the will was executed prior to the passage of the statute, inasmuch as wills are ambulatory in nature (so also in Missouri, see Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132; Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123) the provisions thereof became effective upon the death of the testator, and the statute revoking provisions for the divorced spouse applied. Decedent’s will here was revoked as to his divorced spouse, the plaintiff, by the provision of § 474.420.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: LEEDY, Judge.

license: Public Domain

text:
    Finis RECTOR, James Rector, Gladys Rector, Billy Newlin, Jim T. Newlin, Letha M. Newlin, LaVerne Hyde and Mildred Hyde, Appellants, v. The TOBIN CONSTRUCTION COMPANY, Inc., a Corporation, Respondent.
    No. 49318.
    Supreme Court of Missouri, En Banc.
    March 9, 1964.
    Rehearing Denied April 13, 1964.

      Charles A. Powell, Jr., Macon, for appellants.
    William H. Becker, Terence C. Porter, Columbia, Bollow, Crist & Oswald, Shel-bina, for respondent.
    Ben Ely, Roger W. Plibbard, Hannibal, amici curiae.
   LEEDY, Judge.

Action to recover double damages under § 236.270, RSMo 1959 and V.A.M.S., for the trespass of backing up water on and overflowing lands of the respective plaintiffs to the injury and damage of growing crops thereon, allegedly in consequence of defendant having dammed and obstructed a watercourse in violation of said statute. Trial to the court without a jury; judgment for defendant; plaintiffs appealed, and the St. Louis Court of Appeals reversed and remanded for new trial. On defendant’s application to this court, the case was ordered transferred here under Art. V, § 10, Mo.Const., V.A.M.S., and Rule 84.05, V.A.M.R.

The facts are stated in the opinion of the Court of Appeals (Rector v. Tobin Construction Co., 351 S.W.2d 816), to which reference is made for a more complete statement thereof than we find necessary to the disposition of what we deem to be the determinative question. That question occasioned transfer of the cause, and it is whether, under the facts in judgment, defendant is entitled to share the immunity from liability enjoyed by the authority with which it contracted for injuries growing out of work incidental to the performance of such contract, there being no charge or claim that the contractor was guilty of negligence.

Defendant, a corporate construction contractor, pursuant to a contract with the State Highway Commission, performed certain grading and other work as part of the relocation of U. S. Highway 36 in Macon County, including the construction of a bridge across Middle Fork of Chariton River, a nonnavigable, natural watercourse, referred to in the evidence as a creek. The stream at that point flows in a southerly direction, and it is approximately 35 or 40 feet in width from bank to bank. The highway runs east and west. The lands of plaintiffs lie upstream, to the north of the highway. Immediately north of the site of the bridge, but wholly within the right-of-way of the highway, defendant, while engaged in constructing the bridge, built a dirt fill or dam across the bed of the stream, the bottom of the bed being 8 to 10 feet below the top of the banks. Except in periods of little or no rainfall the flow of the stream is 6 to 12 inches in depth. The fill was about 14 feet in width (north and south) and extended east and west completely across the bed of the stream (35 or 40 feet). Its height was estimated by plaintiff’s witnesses as being from 8 to 12 feet, and was fixed by defendant’s witnesses at 6 or 7 feet. It sloped from each bank toward the center, where it was 2 feet lower than at the banks. A metal drain pipe 3 feet in diameter ran through the fill parallel with the stream, and this permitted the normal flow of the stream to pass through. Heavy rains occurred over a period of several days, notably from July 15 through July 29. July 21-22 nearly 4 inches fell, and July 27-29 more than 4 inches fell, with the result that the lands in question were overflowed to depths varying up to 3 feet. The lands were low-lying and subject to frequent flooding. Even so, and notwithstanding the fact that lands below the dam or fill were flooded and crops damaged, we shall assume for present purposes (as the trial court found) that the fill materially retarded the flow of water occasioned by the rainfalls above mentioned, and prevented the overflowed water from draining from the lands of plaintiffs for a period of time sufficient to kill and injure substantial portions of the crops, the extent of which, in money, the court found to be a total of $3,667.50.

The contract under which defendant built the bridge made no specific reference to a dam or fill across the creek, but did require “any incidental work necessary to complete” the project contracted. And it was stipulated “that defendant had to move dirt [and machinery] across the creek.” Defendant’s project superintendent, with 23 years’ experience, testified it was reasonably necessary in the performance of the contract to have this crossing placed across the stream; that it was necessary for the movement of equipment, materials and dirt back and forth across the stream, and that he did not know of any practical means of getting equipment, materials and dirt across the stream other than by this crossing.

E. E. Baker, an engineer with the Missouri State Highway Department since 1926, whose duties included supervising, approval and disapproval of work done by-contractors with the Highway Department, testified to this effect: That the project in question was assigned to him as Resident Engineer; that he was at the site about every day; that he saw and was familiar with the earthen crossing; that the erection of the crossing was a customary and normal procedure in that kind of work— “it was the general practice and I made no objection. I think I could have stopped him if that was unusual.” He further testified that he did not know of any other way of getting the dirt, machinery and materials across “without going to elaborate bridging to cross on, which has never been practiced before;” and that it was “reasonably necessary and incidental to the performance by defendant of its contract with the state,” and that he approved its use.

Another of defendant’s witnesses was also an engineer for the Highway Department and an inspector, as well, working under the witness Baker. He testified that he had had 11 years’ experience in the type of bridge construction here involved, and he was present at the site of construction daily; that he was familiar with the plans and construction requirements for the project, and also with the earthen crossing; that the latter was reasonably necessary and incidental to the performance of the contract; that the use and erection of such a crossing is a normal and customary procedure, and that in this case there was no other way to move the heavy equipment across the stream. In the latter connection he was corroborated by another witness with engineering experience.

No countervailing proof was offered by plaintiffs. And on the basis of the foregoing, the trial court made these specific findings, which we think the evidence abundantly warranted: “The earthen fill in evidence was not specifically directed by the plans and specifications in evidence; it was constructed by the defendant, was incidental to the performance by defendant of its contract with the State Highway Commission; was reasonably necessary for the purpose for which it was intended and was used, and was a reasonable, customary and approved method of moving machinery and fill materials across a watercourse.” And that “any method of conveying machinery and fill materials across the Middle Fork of the Chariton River (even by pontoon bridge) which the defendant could have employed would have resulted in some obstruction to the flow of water.” Upon such hypotheses the court concluded (contrary to the theory advanced by plaintiffs), “Therefore liability of the defendant cannot be predicated upon the theory that the obstruction here was ‘for the convenience’ of the defendant [within the rule applied by the Supreme Court of Arkansas in Foohey Dredging Co. v. Mabin, 118 Ark. 1, 175 S.W. 400, and Kochtitzky v. Bond, 128 Ark. 255, 194 S.W. 8] * *

The Court of Appeals was “not impressed by the contention that the fill was essential to the work being done under the contract,” and declined to give effect to the trial court’s finding in that regard (which finding we regard as correct and unassailable). Then on the authority of the two Arkansas cases above referred to, and Asheville Const. Co. v. Southern Ry. Co., 4 Cir., 19 F.2d 32, rejected defendant’s claim of shared immunity, and held it to be liable for such damages as the fill was instrumental in causing. We regard both aspects of such ruling to be erroneous, and this is our only point of difference with the opinion. The findings of the trial court hereinabove set out and characterized as “abundantly warranted” (by the evidence) should not have been rejected in the absence of a valid basis for so doing. Nor, in this view, did the facts call for or permit the application of the doctrine of the two Arkansas cases, supra, which limit or make inapplicable the rule of shared immunity where the offending instrumentality is for the convenience of the contractor, no element of the latter being in the case. Neither are we concerned with an in-trusión resulting from extra-hazardous activities. For this reason, the case principally relied on by plaintiffs (Asheville Const. Co. v. Southern Ry. Co., 19 F.2d 32) is not in point. That case involved blasting operations by a road contractor whereby rocks and debris were thrown on to the plaintiff’s railroad tracks. (An exhaustive opinion involving ultrahazardous activities, not here in point, will be found in the recent case of Berg v. Reaction Motors Division, 37 N.J. 396, 181 A.2d 487.)

While the extent of the right of a private contractor with a public body to share the latter’s immunity from liability for damages is a subject upon which much has been written, the only cases of this court on the point to which we have been cited are Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924, and Kenton v. Massman Const. Co., (Mo.) 164 S.W.2d 349. 43 Am.Jur., Public Works and Contracts, § 83, states the rule thus: “The theory is that one who contracts with a public body for the performance of public work is entitled to share the immunity of the public body from liability for incidental injuries necessarily involved in the performance of the contract, where he is not guilty of negligence. In other words, when the act or failure to act which causes an injury is one which the contractor was employed to do and the injury results not from a negligent manner of doing the work, but from the performance thereof, the contractor is entitled to share the immunity from liability which the public enjoys, but he is not entitled to the immunity of the public from liability where the injury arises from the negligent manner of performing the work.” See, also, Anno.: 69 A.L.R. 489; Anno.: 97 A.L.R. 205.

81 C.J.S. States § 131, pp. 1144-1145, states that, as regards immunity from tort liability, an independent contractor doing work for the state “is responsible only when it is shown that his work was carried out in a negligent manner, and, where he performs his work in accordance with plans and specifications and is guilty of neither negligence nor willful tort, he is not liable for any damage that might result.”

Negligence on the part of defendant in erecting the fill or dam has been completely disavowed by plaintiffs throughout the trial and here, and they insist they are proceeding exclusively on the theory of trespass (supposedly as constituting a wilful tort, within the foregoing rule, but without having expressly so denominated it). We are of the opinion that the undisputed evidence that there was no practical way of moving the fill material and heavy machinery (concededly necessary) across the watercourse except by means of the fill or dam justified the court in finding that the construction thereof was incidental to the performance of the contract, was reasonably necessary for that purpose, and was a reasonable, customary and approved method, and being so, this is sufficient to equate, in legal contemplation, the construction of the fill with doing the work in strict accordance with the contract and plans and specifications. In this view, we think the case should be governed by the principle applied in Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., 385 Pa. 477, 123 A.2d 888, as regards the asserted liability of defendant for trespass. In that case the road contractor had constructed a fill 35 feet high and 1000 to 1500 feet in length. It crossed a small stream which fed plaintiff’s ponds, and which stream was conducted through the made embankment by a steel pipe culvert. The plaintiff’s ponds were some 1200 feet distant from the highway. Dirt and silt washed by the natural effects of erosion from the slope of the fill had been carried by the stream into plaintiff’s ponds and eventually filled them. There was no proof that defendant contractor had performed its work negligently and that issue was withdrawn from the jury. Notwithstanding this, and the fact that defendant had affirmatively proved that all its work had been done in strict accordance with the contract and plans and specifications, it was sought to hold the contractor on the further theory that it had been guilty of a wilful tort because of its trespass quare clausum fregit. In denying this claim, too, the court said: “[Tjhere is an obvious and material difference between intending an act and intending the consequences of an act. As recognized in Bowman v. Pennsylvania R. R., 299 Pa. SS8, 567, 149 A. 877, 880, certiorari denied 282 U.S. 849, 51 S.Ct. 27, 75 L.Ed. 752, — ‘To be willful the harm must have been intentionally inflicted’. It is inherent in the theory of trespass q. c. f. that ‘ “The intention which is required to make the actor liable * * * is an intention to enter upon the particular piece of land in question irrespective of whether the actor knows or should know that he is not entitled to enter thereon.” ’ Restatement, Torts, § 163, comment b, quoted with approval in Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 450, 91 A.2d 232, 235. A voluntary act may result in injury to another, but it is only when the harm is intentionally inflicted that there is a ‘wilful’ tort. The facts of the instant case well illustrate the distinction. While the non-negligent intentional construction by the defendant resulted in harm to the plaintiff in a way sufficient to support a charge of trespass q. c. f., it cannot be contended that the defendant intended to invade the interests of the plaintiff when it intentionally constructed the fill. Hence, there was no wilful tort.” See, also, Meier v. Frank Mashuda Co., (Ohio App.) 168 N.E.2d 319; Wood v. Foster & Creighton Co., 191 Tenn. 478, 235 S.W.2d 1.

As defendant has been guilty of neither negligence nor wilful tort, it is not liable to plaintiffs for the damages to their crops resulting from its performance of the state’s contract. We quite agree with much of the argument in the able brief of amici curiae inveighing against the principle of sovereign immunity from tort liability as not embodying sound social policy in accordance with present-day political ethics. We do not explore that field, inviting as the opportunity may seem to be. The amici brief concedes “the principle is so thoroughly established in our law that it cannot now be abrogated by judicial decision” (citing Hinds v. City of Hannibal, Mo., 212 S.W.2d 401), and, accordingly, directs its fire against extending the principle. But the holding just announced does not run counter to any of our cases, nor, in our opinion, does it extend the principle beyond pre-existing limits.

The judgment is affirmed.

All concur, except HOLMAN, J., not sitting.


author: HYDE, Judge.

text:
    John MANTZ, (Plaintiff) Respondent, v. SOUTHWEST FREIGHT LINES, INC., a Corporation, (Defendant) Appellant.
    No. 50076.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.
    Motion to Transfer to Court En Banc Denied April 13, 1964.

      Guilfoil, Caruthers, Symington & Mon-trey, John P. Montrey, Gerald M. Smith, St. Louis, for appellant.
    Everett Hullverson, St. Louis, Terence M. O’Brien, Kansas City, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
   HYDE, Judge.

Action for damages for personal injuries, verdict for plaintiff for $300,000.-00; and after remittitur of $50,000.00 judgment was entered for $250,000.00. Defendant has appealed and has briefed two points: 1 — Error in not granting defendant a new trial because of the failure of juror Gilliam to disclose on voir dire examination her pending claim against St. Louis Public Service Company; 2 — The judgment as entered by the trial court is grossly excessive.

Plaintiff was driving a 1954 Ford pickup truck, with camper body, east toward Rolla on U. S. Highway 66, a divided highway, two lanes in each direction with a 40-foot median strip between, and was struck from the rear by defendant’s 1956 International diesel tandem tractor coupled to a flat 58 Holland empty trailer. As to the issues on liability, defendant says: “Since the case involved a rear-end accident, the negligence of defendant’s agent was not seriously contested. However, the injured plaintiff wa's the driver of the car, and in view of defendant’s driver’s testimony that the plaintiff was operating his automobile at niglit in an unlighted condition, the question of contributory negligence was litigated. The evidence was clearly sufficient to warrant the submission of the issue of contributory negligence to the jury and the Court, finding that a jury case had been made on that issue, did submit it to the jury through instruction No. 3.” The record supports this statement but plaintiff’s evidence was that all his “lights were on and working good.” There were also two reflectors on the rear of his truck.

As to its first point, defendant correctly says “where a juror intentionally conceals information sought on the voir dire examination, a new trial must be granted if liability is disputed.” See Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, 463. Defendant claims “the facts in the record establish conclusively that juror Gilliam intentionally concealed her pending claim when interrogated on voir dire examination.” This trial began December 3, 1962. On November 11, 1961, Mrs. Gilliam fell and sprained her ankle, stepping into a depression in the street, while alighting from a bus operated by the St. Louis Public Service Company. She said she used crutches for three weeks because of this injury. The insurance company which covered the bus company sent an adjuster to see her but by the time the adjuster had reached her she had already hired a lawyer and had had executed a contingent fee contract with a lawyer, which said he was "to represent her in a claim against St. Louis Public Service Company and the City of St. Louis.”

On the voir dire, plaintiff’s attorney, Mr. Hullverson, first stated it was quite important to know “whether anybody has ever been sued in any sort of lawsuit * * * or he may have sued somebody.” He first asked if any juror “ever had a lawsuit filed against you * * * ever had a claim made against you”; and then asked, “Have you ever filed a lawsuit against anybody?” One juror said he had filed a suit about an automobile accident which was settled. Another juror said he filed a suit in a dog bite case in which he obtained a judgment. Plaintiff’s attorney getting no further response then asked: “Now, has anyone else had any such experience, whether you have ever filed any suit, we will ask about the suit first and then we will ask about any claim? Have any of you filed a suit against anyone, or have any of you made any claims that didn’t go to suit?” After no response and other questions, defendant’s attorney asked plaintiff’s attorney: “Did you ask if anybody ever had any claims that never went to court?” Plaintiff’s attorney then said: “Yes, I wanted to know even the claims”; and a juror said he had made claims twice when his car had been hit and had settled both of them satisfactorily. Plaintiff’s attorney then said: “So you had two claims. I want to make that very clear, because we want you to understand that we would like to know those things. Mr. Montrey would like to know, and I certainly would like to know. If you think of any claims, you might advise me as we go along.” Thereafter, defendant’s attorney asked: “Mr. Hullverson has asked you if any of you members of the panel have instituted suits in your own behalf or made claims in your own behalf. May I expand that question just a little bit, and ask you if any members of your immediate family have had suits or claims against some other person, and not telling me what you have already talked about to Mr. Hullverson.” The only response was from the juror who had told about his automobile accident and who said his wife was with him on that occasion and was injured slightly.

At the hearing on the motion for new trial, Mrs. Gilliam said this was her first. jury service and testified as follows: “Q. Did you at that time have a claim of any kind? A. I didn’t know if I had one or not. Q. Do you remember a claim when I asked this question generally, did you remember anything about the claim? A. No, sir. * * * Q. Mrs. Gilliam, when Mr. Hullverson asked these people about claims, did you understand what he meant by a claim? A. Well, it was like people were going up to court any time of this month or then. That is what I understood, yon know — Q. You understood that when he said claim, he meant people that were going to court this month? A. Yes. * * * Q. Did you think claims were different from lawsuits? Or the same thing? A. Different. Q. When you thought you had a case against the streetcar company what did you think that was ? A. I thought, well, I don’t think they ever filed for it, so I never heard nothing about it since. Q. Did you think you had a claim against the streetcar company? A. No. * * * I never thought about it when I was on the jury.”

Mrs. Gilliam said she had telephoned her lawyer’s office several times without reaching him but had not seen him since she signed the contract and had last talked to him on the phone in August 1962. Her lawyer said he sent a lien letter to the Public Service Company but never discussed settlement. He said: “The last discussion I had with her * * * I told her that I didn’t know whether we would be able to get anything or not, and I didn’t feel that it was a case that warranted filing a lawsuit. * * * And I told her at that time that I didn’t feel that it was a claim or a case that warranted filing a lawsuit.”

“Whether a verdict shall be set aside for failure of a venireman to disclose some fact on voir dire which might reasonably affect his qualification to sit as a juror is a matter primarily within the sound discretion of the trial court, Hornberger v. St. Louis Public Service Co., Mo.Sup., 353 S.W.2d 635, 642, whose action is conclusive ‘unless an abuse of discretion unmistakably appears.’ Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795.” Begley v. Adaber Realty & Investment Co., Mo.Sup., 358 S.W.2d 785, 792. See also Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297; Davis v. Kansas City Public Service Co., Mo.Sup., 233 S.W.2d 679. If the trial court is justified in finding there was no intentional concealment, misrepresentation, deception or prejudice, no abuse of discretion can be found. In Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, 464, the juror involved had made 40 or 50 claims and had one pending against the defendant at the time over a collision of his car with a streetcar because of which he was fined in police court and about which he had the feeling he had been “railroaded”. We said: “The plain and only reasonable inference from this record is that juror Prince intentionally concealed the fact, after direct examination on the subject, that in 1943 and 1944 he had a claim against the appellant. In the circumstances ‘it is difficult to conceive how that could be harmless error.’ ” Refusal to grant a new trial in that case clearly was an abuse of discretion. For another case in which we held a new trial should have been granted (because of a juror’s indicated prejudice) see Moore v. Middlewest Freightways, Inc., Mo.Sup., 266 S.W.2d 578; and for other cases finding abuse of discretion in not granting a new trial where intentional concealment appeared see Brady v. Black and White Cab Co., Mo.App., 357 S.W.2d 720 (juror did not answer because he did not remember details) ; Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670 (juror made direct false negative answer). In other cases cited by defendant, Woodworth v. Kansas City Public Service Co., Mo.Sup., 274 S.W.2d 264; Girratono v. Kansas City Public Service Co., Mo.Sup., 272 S.W.2d 278, the trial court granted a new trial, this action being affirmed on appeal. As we said in the Woodworth case (274 S.W.2d 1. c. 271): “[Ajppellate courts are more, liberal in upholding a trial court’s action in sustaining a motion for a new trial than in denying it.” In the first place, Mrs. Gilliam’s claim was not against the defendant as in the Piehler case. Since it appears that Mrs. Gilliam had been told by her lawyer several months before the trial that filing a lawsuit was not warranted, she reasonably might not expect to get anything for her injury which was not severe; and this could explain her statement that she did not know whether she had a claim or not. Moreover, the jurors who answered the voir dire questions told only about claims that had been sued on' or settled. Furthermore, neither lawyer in the voir dire questions mentioned personal injuries in asking about suits and claims. We said in the Barb case (281 S.W.2d 1. c. 302) : “Our careful examination of the testimony indicates' that these veniremen did not precisely understand what it was counsel meant by the word ‘claim/ or had for the moment forgotten the accidents in which they had been involved.” Our conclusion is that the trial judge reasonably could have so found in this case and therefore we find no abuse of discretion in overruling the motion.

As to the excessive verdict Contention, the following facts appear: Plaintiff was 44 years old at time of trial and had long experience and high reputation in automobile racing. He began, at about 21, as a professional midget auto racer, 1939 and 1940, then joined the Canadian Army and later transferred to U. S. Army from which' he was discharged in June 1943 for disability due to auto racing accidents. The injuries noted on the army report were head injuries due to concussion, causing headaches, vertigo, and spells of unconsciousness; and fracture-of the third lumbar vertebra. Discharge was because these conditions prevented “further useful service from soldier.” Plaintiff continued midget racing until 1948 and then began big car racing. In 1947, he sustained a compression fracture in the lower part of his spine and had it fused; and in 1955 cracked a bone in his neck for which he wore a collar for about three weeks. In 1948, he qualified and drove in the Indianapolis race and in 1949 ran seventh in that race, driving the 500 miles without relief or stop, breaking several records and winning substantial prize money. During these years he won the West Coast Big Car Championship and was second in the Eastern Big Car Championship. In 1950, he begun Stock car racing, first with Nash and in 1952 with the Ford Motor Company team, for advertising and promoting Ford cars through 1957 when motor companies ceased sponsoring stock car racing. In 1955, plaintiff received $9,000.00 annual salary with 60% of prize money and all expenses. By 1957 he was receiving $1,000.00 per month salary in addition to prize money and pay for additional engineering tests. By 1952, he also had income from his Mantz Company, “furnishing and distributing perishable cutting tools to aircraft companies,” for which he was outside salesman. He also had an interest in the George Holland Company, a machine shop, during p^rt of this period. In 1956, plaintiff’s total earnings were $27,-188.0(3, of, which $12,400.00 was derived from the Mantz Company and $14,000.00 from DePaolo (Ford). His gross income in 1957, was $42,000.00, made up of $9,000.00 from. Stroppe & Associates, (Mercury), $15,000.00 from .the Mantz Company, and $18,000.00 from the George Holland Company. In that year his net taxable income was $26,080.00. In 1958 his net taxable income was $17,520.00, and his gross was $26,000.00, of which $18,000.00 was received from the Mantz Company and $8,000.00 from the Holland Company. In 1959, his net taxable income was $19,130.-00 and in 1960 it was $12,276.00.

In 1960, the Mantz Company went out of business because of changes in defense business from airplanes to missiles and the cancellation of the B-70 program for which his company had developed tools. Plaintiff’s income in 1961 dropped to $10,000.00 mainly for promotional work for an Engineering Company and for Ford. However, in 1961, plaintiff developed a plan for a one-unit motor home to use a Ford chassis, to be called the Condor Motor Home and sold through Ford dealers. He made arrangements with a California engineering company to build a model in Detroit under Ford supervision and get it in 1962 automobile shows, for which he was to be paid a salary of $1,450.00 per month with a per diem for expenses. He was on his way to Detroit for this purpose, with A. R. Smith, a mechanic, hired by the engineering company to go with him, when he was injured. After plaintiff’s injury this Condor project model was completed and the unit shown at the 1962 New York automobile show. It was also shown that Ford had plans to enter racing competition in 1962 and its contractor, who selected the drivers and for whom plaintiff had previously driven, said plaintiff had all the qualifications he was looking for in his drivers.

After the collision, January 11, 1962, plaintiff was taken to a hospital in Rolla and the next day to Barnes Hospital in St. Louis. He was in a semi-comatose condition and near death from profound shock and loss of blood. His left arm had to be amputated above the elbow and, because of injuries to shoulder muscles on both sides, it is difficult for him to wear and use an artificial arm. He had a fracture in his right foot and the right hip and multiple comminuted fractures of the femur. At the time of the trial, December 1962, the fractures in his foot and hip had healed but there was limitation in the hip joint of about one-third. However, the fractures of the femur had not completely healed and he was required to wear a leg brace so that he would not put any weight on it. In the femur fractures there was some necrotic or dead bone which the doctors considered dangerous to remove and which could cause serious trouble if it became infected. The chances of healing were favorable although the leg would be bowed and almost two inches shorter than the left leg and probably require the use of a cane. There was a loss of about 70 degrees of flexion at the knee.

Plaintiff has permanent scars on his face, one about three inches long, another an inch and a quarter and several smaller ones. He lost all of his lower teeth (he wore a full upper denture) and his tongue was split into two parts. He also sustained fractures of facial bones, nose and jaw and had six rib fractures on the left side and two on the right. Both lungs were punctured by rib fragments and partially collapsed. Tubes had to be inserted in each side of his chest for air to pass out through the torn portion of the lung and traction used by pulleys and weights to hold the chest distended. The lung injuries left pleuritic adhesions, loss of volume and susceptibility to infection. Plaintiff suffered much pain from these injuries. At first he had a kidney failure and for a long time a catheter was kept in his bladder. He also had a blood clot, thrombophlebitis, in his left leg. For several months, plaintiff could not keep food down and had to be fed through the veins. It was later discovered that plaintiff had a fracture of the process of the second lumbar vertebra, bleeding from which had probably caused a baseball-size mass found behind his stomach which displaced it forward delaying it from emptying.

Plaintiff was in Barnes Hospital until March 12th and then moved in a full body cast to a California hospital where he stayed until June 16th. He then came back to Barnes for six weeks for occupational therapy and instruction in the use of the artificial arm. Plaintiff’s special damages were $24,000.00 for hospital and medical expenses, $1,000.00 for loss of automobile and tools, lost wages 11 months at $1,450.00 per month $15,950.00, a total of $40,950.00. Plaintiff’s life expectancy table showed expectancy at his age of 28.56 years and an actuary stated that the “present value of 10,000 a year payable monthly, for a period of 22 years, is $161,113.88” (to age 65 for plaintiff) at 3%, figured from the year of plaintiff’s lowest recent earnings. Defendant argues the effect of previous injuries plaintiff had sustained as recited in his discharge from the army and also his later injuries. However, his activities and career, for more than 18 years after his army discharge, indicate considerable recovery from these old injuries; and also from the later one which required a spinal fusion operation. Plaintiff’s ability and reputation as an auto racer made it possible for him not only to obtain a large income from that activity but also opened opportunities in promotion and sales work for automobile manufacturers and engineering companies. Much of this depended on ability to demonstrate their products by driving over the country or appearing on television doing so. Plaintiff’s sales activities also depended on much driving and walking through factories, which the jury reasonably could find he will not now be able to do. Certainly plaintiff suffered very severe, painful and permanently disabling injuries, which will require future medical services, and he will continue to suffer pain as well as inability to carry on the activities that have produced for him a very good income for many years. Defendant cites Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697, in which we affirmed the judgment of $100,000.00, after a remittitur of $50,000.00 had been ordered by the trial court; Newman v. St. Louis-San Francisco Railway Co., Mo.Sup., 369 S.W.2d 583, in , which we ordered a remittitur of $90,000.00 to reduce a judgment of $225,000.00 to $135,000.00; and Moore v. Ready Mixed Concrete Company, Mo.Sup., 329 S.W.2d 14, in which we affirmed the judgment for $150,000.00 after a remittitur of $50,000.00 had been ordered by the trial court. Defendant says the similarity of the injuries in the Moore case and in this case are great; but it points out that Moore was 34 while plaintiff here was 44 and says that plaintiff has made a better recovery than Moore had. However, Moore’s earnings had been less than $400.00 per month while plaintiff had a contract for a salary of $1,450.00 per month with prospects for greater earnings from the project on which he was working and further prospects in stock car racing. Moreover, plaintiff had been earning a comparable amount for all but one of the previous six years. Thus it appears that plaintiff’s loss of earning’ capacity is much greater than Moore’s.

In the Myers case, plaintiff was 65 years old, earning from two to three thousand annually but was totally incapacitated by his injuries, probably requiring continuous nursing attendance the rest of his life. The Newman case also involved a totally incapacitated plaintiff, a mentally retarded, epileptic boy who never could have had any earning capacity. Thus these cases are not comparable to this one. Both parties agree on the following statement: “Clearly, there is no precise formula for gauging whether a verdict is excessive. Each case by its very nature must depend upon its own facts and consideration must be given to the nature and extent of the injuries and losses, the earning capacity of the plaintiff before and after the injury, the plaintiff’s age and the amount of compensation awarded and approved in cases similar or comparable. Of course, the ultimate test of excessiveness is what will fairly and reasonably compensate for the injury sustained.” See Honeycutt v. Wabash R. Co., Mo.Sup., 337 S.W.2d 50, 56; Parlow v. Carson-Union-May-Stern Company, Mo.Sup., 310 S.W.2d 877; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674, 681-682. This court “in determining the maximum amount authorized by the evidence, does not award or fix the damages but only says that if the jury had given such maximum amount then its verdict could have properly been permitted to stand,” Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 495. Our view is that the jury reasonably could find that plaintiff is totally and permanently disabled from engaging in his previous occupation and activities which rewarded him with such a much better than average income and that his ability to engage in any work for which he might be qualified is entirely speculative. “Where, as here, the trial court has considered the question of excessiveness and ordered a substantial reduction, we are usually reluctant to order a further reduction.” Moore v. Ready Mixed Concrete Company, 329 S.W.2d 1. c. 32. Nevertheless, considering the effect of plaintiff’s previous injuries both before and after his army service, the extent of his recovery and our rule of reasonable uniformity, our conclusion is that the verdict is still excessive by $50,000.00.

Therefore, if plaintiff will remit $50,-000.00 within fifteen days, the judgment will be affirmed as of the date of its rendition for $200,000.00; otherwise the judgment will be reversed and the cause remanded for a new trial.

All concur.


author: STORCKMAN, Presiding Judge.

text:
    Wilmer E. McINTYRE, Respondent, v. Leona T. McINTYRE, Appellant.
    No. 49863.
    Supreme Court of Missouri. Division No. 2.
    March 9, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.

      Francis M. O’Brien, St. Louis, for appellant.
    J. B. Mackler, St. Louis, for respondent.
   STORCKMAN, Presiding Judge.

This is an equity suit for the construction and enforcement of a property settlement agreement made by the parties in contemplation of a divorce and for injunctive relief. The trial court decreed that the defendant be permanently enjoined from exercising control, spending, borrowing, transferring, or in any way using monies in her possession being held for the benefit of the plaintiff or their minor son Dale Alan McIntyre. The decree further provided that the defendant should pay the sum of $21,-031.64 into the registry of the court to be held for the use and benefit of Dale until he becomes 21 years of age and in the meantime no payments should be made from the fund except on court order, that the defendant turn over to plaintiff the sum of $18,000 with interest at six percent from the date of the contract, which sum with interest totaled $19,890, and that the plaintiff execute and deliver to the defendant a quit claim deed to certain described real estate located at 2853 Russell Avenue in accordance with the property settlement agreement. The defendant’s motion for a new trial was overruled and she has appealed.

The property settlement agreement, dated October 6, 1960, stipulated that it should be performed on November 1, 1960, unless the parties mutually agreed to another date, and a copy of it was filed in the divorce action. The contract recited that the parties were husband and wife but were separated; that a divorce action filed by the wife against her husband was pending; that the parties mutually desired to make a permanent, complete, and final adjustment of all their property; that each of the parties was completely and fully informed as to the financial and personal status of the other, and each was represented by counsel. The contract has 24 numbered paragraphs and contains provisions for the custody and support of Dale, alimony, the disposition of household goods, the family automobile, and other real and personal property.

Sometime after the contract was executed, the parties were divorced. The defendant has remarried and her name is now Thompson. Nevertheless, since the parties in this case are switched from the way they appeared in the divorce action, for the sake of greater clarity, we will sometimes refer to the present defendant as Mrs. McIntyre and the plaintiff as Mr. McIntyre.

The property settlement contract was drafted by the attorney representing Mrs. McIntyre in the divorce action. In the present case she is represented by different counsel. The divorce attorney testified he typed the contract at home one night, apparently shortly before the divorce case was set; that while doing so he conferred with her by telephone to secure additional information, and that she read the contract and he explained it to her before she signed it. A substantial part of the financial means of the parties consisted of savings accounts on deposit with banks and savings and loan associations in St. Louis and Sparta, Illinois. The accounts were in various name’s' or combinations of the names of the parties; some of them included the name off the son Dale as a joint tenant, a survivor,, or as a beneficiary of a trustee account. Apparently Mrs. McIntyre had possession of the passbooks but they were not available to her attorney when he drafted the settlement agreement. Consequently the division and disposition of the cash in the savings accounts was described for the most part by general terms in the contract and without regard to the number of the account, the depositary, the names of the depositors, or the correct amount on deposit.

In fact the record is far from satisfactory as far as the appellate court is concerned. While on the witness stand, Mrs. McIntyre produced a number of savings account books and testified with respect to these and other matters. The description of the accounts as stated into the record is fragmentary and incomplete. None of the books or other records were marked as exhibits or introduced in evidence although there was a suggestion at one point that this ought to be done. The situation was undoubtedly quite clear to the trial court and counsel with the books and records before them, but the review by this court is limited by the fact that the record before us does not give the complete picture. Neither party objected to this procedure; nevertheless, where a witness is permitted to give incomplete and fragmentary testimony as to the contents of records which are not introduced in evidence, it is impossible for an appellate court to obtain a clear understanding of the facts, and the practice should be discouraged. Paden v. Morris & Co., Mo.App., 251 S.W. 424, 426[2].

The only witness in addition to Mrs. McIntyre was the attorney who drafted the settlement agreement. He testified to the conditions under which the contract was drawn. In her supplemental answer and counterclaim, the defendant prayed that the contract “be set aside because óf mutual mistake and misunderstanding” and further that “the Court construe the contract * * and reform said contract in accordance with its construction or in the alternative to rescind said contract because of its ambiguity * * There is no evidence which justifies setting aside, reforming, or rescinding the contract, and the trial court did not err in refusing to grant the relief requested in the defendant’s counterclaim.

At one point in her brief, Mrs. McIntyre states that “the construction of the agreement and particularly Paragraphs Tenth and Twelfth were put in issue” in the trial court. At another point she states that paragraph Twenty-Third provides for the payment of $10.00 per month to her in lieu of alimony and that Mr. McIntyre claims this provision is void by reason of her remarriage. No issue was made by the pleadings or the evidence regarding alimony and the trial court did not adjudicate any such issue. On the record and briefs of the parties, no such issue is presented for review in this court.

In the settlement contract, the wife Leona T. McIntyre was referred to as the first party, and the husband Wilmer E. McIntyre was the second party. The paragraphs of the contract designated by the defendant as the subject matter of this controversy read as follows:

“Tenth: First party and second party mutually agree that any bank accounts, savings accounts or accounts or property of any kind whatsoever which is in the name of Dale Allen McIntyre at the time of the execution of this agreement shall remain for the sole account and use of the said Dale Allen McIntyre and neither party shall use any of said funds for his or her own personal use.”
“Twelfth: Second party shall be solely entitled to the following amounts in the below listed accounts which are to be applied and added until second party receives the total sum of $22,500.00 (twenty-two thousand and five hundred dollars). If, upon an audit of the listed accounts, it is determined that the balance with accrued interest amounts to more than the sum stated below, that excess amount shall apply against the additional amount required of first party to make the sum total of $22,-500.00. The said accounts and estimated balances are as follows: [$2,000.00 Credit Union of Railway Express; 7,000.00 1st Federal Bank in Sparta, Ill.; 3,280.00 Jefferson Savings; 2,900.00 Farm & Home; 500.00 Stock; 2,000.00 Note; 1,813.00 Jefferson Savings.] First party agrees to execute any and all documents necessary in order to change the joint accounts above into accounts which are the sole property of second party and to pay to second party, any amount in cash representing the difference between the balance of all said accounts and $22,500.00.”

On the evidence adduced the court made these findings of fact:

“1. That the parties hereto entered into a Stipulation on the 6th day of October, 1960, which Stipulation was prepared by Defendant and executed by both parties.
“2. That under the terms of said agreement all bank accounts, savings accounts or accounts or property of any kind whatsoever which were in the name of Dale Alan McIntyre at the date of the Stipulation aforesaid were to remain for the sole account of said Dale Alan McIntyre who is the son of the parties hereto.
“3. That said Stipulation further obligated the Defendant to pay to Plaintiff a certain sum of money or transfer of accounts so that he would receive the sum of $22,500.00.
“4. That Plaintiff further agreed to convey a certain parcel of real estate to Defendant.
“5. That from some time prior to the execution of the Stipulation and at all times thereafter the account books, records, and most of the assets were in the hands and under the control of the Defendant who made several changes in the accounts, closing some, opening others, and changing the designation of said accounts.
“6. The Court finds that the Defendant, in so changing said accounts, has taken unto herself funds that were in the name of Dale Alan McIntyre and has failed and refused to pay to Plaintiff such sum or sums due to Plaintiff under the terms of the Stipulation, contrary to the terms of said Stipulation.”

With respect to funds for the benefit of Dale and the payment to be made to the plaintiff, the decree provides:

“It is further ordered, adjudged and decreed that the sum of $21,031.64 shall be paid by the Defendant into the Registry of the Court, there to be held for the use and benefit of Dale Alan McIntyre, and to be paid to him upon his application immediately after his twenty-first (21st) birthday. It is further ordered that no other payments will be made from said funds except on application to the Court and with notice to both parties hereto.
“It is further ordered, adjudged and decreed that the Defendant is forthwith to turn over to the plaintiff the sum of $18,-000.00 together with interest at 6 percent per annum from October 6th, 1960, in the amount of $1,890.00, or a total of $19,890.-00; * *

The appellant properly contends that a contract must be construed in its entirety, giving effect to every part thereof, if that be fairly and reasonably possible, and in construing a contract of doubtful meaning, the court properly may consider the subject matter of the contract, the facts and circumstances attending execution thereof, and the apparent purpose which the parties were undertaking to accomplish. The trial court heard evidence concerning the subject matter of the contract and the facts and circumstances attending its execution. The appellant however, fails to specify the particular actions and rulings of the trial court that are claimed to be violative of these rules of construction.

The next point in the appellant’s' brief is a reference to § 362.46S, RSMo 1959, V.A.M.S., which provides in substance that any deposit made by or in the name of a minor shall be held for the exclusive right and benefit of the minor, free from the control of all other persons except creditors and that the receipt or acquittance of such minor shall release and discharge the bank with respect to the deposit. We have examined the evidence and find no record of a deposit solely in the name of Dale; hence this statute is not applicable.

The appellant’s remaining points relate to the statutory and case law regarding joint deposits and deposits in the name of a person as trustee without notice to the depositary of the terms and existence of the trust. Sections 362.470 and 362.480 provide that the deposit may be withdrawn by any person or persons named as joint depositors in their lifetimes or by the trustee, and that the depositary will be released and protected when the deposit is withdrawn accordingly. In this case we are not concerned with rights of survivorship since all of the parties named as depositors are living.

The appellant asserts that the intention of the depositors controls in determining whether an account is jointly held, citing Princeton State Bank v. Wayman, Mo. App., 271 S.W.2d 600, but this is beside the point. Nor is it of controlling importance that some of these accounts were in fact estates by the entirety by reason of the depositors being husband and wife. Where the common law as to an estate by the entirety exists, a bank deposit payable to a husband and wife is presumed to be an estate by the entirety, notwithstanding the state statutes relating to joint deposits. State Bank of Poplar Bluff v. Coleman, 241 Mo. App. 600, 240 S.W.2d 188, 189-190 [2] ; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, 217-218 [3, 4] ; McElroy v. Lynch, Mo., 232 S.W.2d 507, 509 [1,2].

Nevertheless, a husband and wife acting jointly may make an effective disposition of property held by the entirety. Shackleford v. Edwards, Mo., 278 S.W.2d 775, 781 [10]. Moreover, when a husband and wife holding property jointly or as an ■estate by the entirety are divorced, each ■of them becomes vested with an undivided ■one-half interest as tenants in common un'less there is proof of some other right or interest. Durr v. Vick, Mo., 345 S.W.2d 165, 169 [4]; Allan v. Allan, Mo., 364 S.W.2d 578, 582 [10, 11]; Hahn v. Hahn, Mo., 297 S.W.2d 559, 566 [10]. It follows, therefore, that neither the statutes nor the common law prevented Mr. and Mrs. McIntyre from dividing and disposing of their real and personal property as they saw fit.

The appellant’s principal contention is that the joint accounts on deposit with one or both of the parties and their son Dale were not within the purview of paragraph Tenth and were not intended to be set aside for the sole benefit of their minor son. From the testimony it appears that Mrs. McIntyre had suspected that her husband had . -some savings accounts jointly with Dale and she wanted paragraph Tenth to apply to them. On the other hand, she was unwilling to freeze her own accounts held jointly with Dale although she wanted him to have what remained after her death. The defendant’s contention that Dale should have the use and benefit of the money only after her death is inconsistent with the express provision of the paragraph that neither she nor her husband “shall use any of said funds for his or her personal use.” Our attention has not been directed to any evidence of an account in Dale’s name alone. The appellant’s discussion of the nature and attributes of joint accounts and trustee accounts has little to do with the question before us. We ■are now concerned with an interpretation of :a contract provision disposing of such .accounts as the parties clearly had a right lo do. We must ascertain the intention of the parties in this regard.

The intention of the parties to a contract must be ascertained as nearly as may be from within the four corners of the instrument and the surrounding circumstances and conditions; an undisclosed or secret intention of one of the parties cannot be used to vary or contradict the intention expressed in the written instrument. Kerrick v. Schoenberg, Mo., 328 S.W.2d 595, 599 [3]; Wolf v. Miravalle, Mo., 372 S.W.2d 28, 34 [3]. The contract was drafted by Mrs. McIntyre’s lawyer from notes made by him and after consultation with his client. The rule that an ambiguous contract should be construed strongly against the party who drew it is one of several subsidiary construction aids and may be utilized when other means of construction fail. Engel v. Cord Moving & Storage Co., Mo.App., 313 S.W.2d 173, 176 [3-5]; Katz Drug Co. v. Kansas City Power & Light Co., Mo.App., 303 S.W.2d 672, 680 [6]; Hamilton Fire Insurance Company v. Cervantes, Mo.App., 278 S.W.2d 20, 23 [3],

The phrase of paragraph Tenth with which we are particularly concerned is: “any bank accounts, savings accounts or accounts or property of any kind whatsoever which is in the name of Dale Allen McIntyre at the time of the execution of this agreement”. This appears to be quite broad and comprehensive. If Mrs. McIntyre had intended it to apply to accounts in the name of Dale alone or to otherwise restrict it, she could and should have done so in view of the number and variety of existing accounts. The appellant does not contend that the trial court erred in allocating any particular account to Dale’s use and benefit. Pier position as we understand it would in effect deny setting aside anything for the use and benefit of Dale and thereby render the paragraph practically meaningless. On the record before us, we cannot say that the trial court erred in construing paragraph Tenth to apply to all accounts in which the name of Dale appeared.

The purpose of the agreement as a whole was to divide the property between the husband and wife and to set aside funds for the use and benefit of their son Dale. The intent of the parties with respect to paragraph Twelfth seems quite clear. Under its plain terms Mr. McIntyre was to receive a total of $22,500 as his share. He had in his possession a savings account, a promissory note, and shares of stock, aggregating $4,500, and the court awarded him the balance of $18,-000. Under the contract Mrs. McIntyre received the real estate and the remaining personal property after Mr. McIntyre’s share was paid and the accounts for the use and benefit of Dale were set aside. There is no clear-cut evidence as to the total value of the couple’s property, but on the record before us it has not been demonstrated that the property division and allocation as made by the contract and construed and enforced by the trial court should not be permitted to stand.

The judgment is affirmed.

All of the Judges concur.

      . The middle name of the son is variously spelled in the contract and transcript and we have no way of telling which is correct, so we will simply refer to Mm as Dale.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. William C. SAALE, Appellant.
    No. 50150.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Opinion Modified on Court’s Own Motion April 13, 1964.
    Motion to Modify, for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.

      N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, B. Richards Creech, St. Charles, for appellant.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.
   STOCKARD, Commissioner.

Plaintiff-respondent sought by condemnation to obtain from appellant-landowner the title to 127.24 acres of land in St. Charles County constituting a part of a tract of 134 acres upon which (with other land) respondent intends to erect a power plant with the necessary appurtenances for the generation and distribution of electric energy throughout its system. Both parties filed exceptions to the award of the commissioners, and a jury trial on the issue of damages resulted in a verdict of $98,688 in favor of appellant. The trial court sustained respondent’s motion for a new trial, and appellant has appealed from that order.

The ground specified by the trial court for granting the new trial was that the court “erred in the admission of defendant’s evidence as to the value of the farm (which was zoned for agricultural use) for industrial use without evidence being offered that there was a reasonable likelihood or probability that the Zoning Order would be changed in the reasonably near future so as to permit its use for industrial purposes.” The trial court then stated that as the result of this erroneous action “other errors followed,” giving some examples, but the determinative issue on this appeal is the correctness of the above ground for granting the new trial.

Prior to the taking by condemnation, the land in question was farm land being used •solely for farming purposes. It is located approximately six miles from the city of West Alton, and fifteen miles from the city of St. Charles. Pursuant to Sections 64.510 to 64.690 (all statutory references are to RSMo 1959, V.A.M.S.,) St. Charles County adopted a “county plan” for the zoning of certain areas of the county, including the land in question, and pursuant thereto the land had been and was at the time of the taking by condemnation zoned “agricultural,” but the authorized uses of the areas so zoned included the establishment thereon of “residential subdivisions,” according to the county zoning enforcement officer, and certain other activities by reason of Section 64.560. The authorized uses did not include industrial purposes generally. The record does not indicate that appellant had sought a change in the zoning classification of his land, and he does not challenge the validity of the zoning regulations.

In the course of the trial, over the objection of respondent, the trial court permitted appellant to introduce evidence in the form of the testimony of appellant and several expert witnesses to the effect that the highest and best use of appellant’s land was for industrial purposes generally, and also to introduce evidence of the value of the land for that purpose. Appellant did not attempt to show a reasonable probability that the zoning regulations would in the reasonably near future be changed to permit such use.

“Just compensation” for the taking by condemnation of a part of a tract of land, Mo.Const.1945, Art. I § 26, V.A. M.S., generally speaking, is the fair market value of the land actually taken, and the consequential damages, if any, to the remainder of the land caused by the taking. City of St. Louis v. Vasquez, Mo., 341 S.W. 2d 839; City of St. Louis v. Kisling, Mo., 318 S.W.2d 221, 224. The fair market value of the land taken is what a reasonable buyer would give who was willing but did not have to purchase, and what a seller ■would take who was willing but did not have to sell. In re Armory Site in Kansas City, Mo., 282 S.W.2d 464; State ex rel. Board of Regents for Central Mo. State College v. Moriarty, Mo.App., 361 S.W.2d 133; 29 C.J.S. Eminent Domain § 137. In the determination of what constitutes the fair market value the jury may consider uses of the land for which it is reasonably adapted or suited and for which it is available, having regard to the existing business wants of the community, or such as may be reasonable expected in the future. State of Missouri ex rel. State Highway Commission v. Williams, Mo., 289 S.W.2d 64. When the land is not available for a certain use by reason of a zoning restriction, its suitability or adaptability for such use may be shown as affecting its value as of the time of the taking if, but only if, the evidence indicates a reasonable probability of a change in the zoning restriction in the reasonably near future. The rule is well stated in Orgel on Valuation Under Eminent Domain (2d Ed.), § 34, p. 167, and quoted in State of Missouri ex rel. State Highway Commission v. Williams, supra, 289 S.W.2d at p. 66 and 67, as follows: “It is generally held that although an ordinance may prohibit the use of the property for certain purposes at the time of condemnation, yet if there is a reasonable probability that the ordinance may be changed or an exception made, the value for that purpose as affected by the existing ordinance may be considered.” (Italics added.) Whether such probability of a change exists is a question of fact, Nichols on Eminent Domain, (3rd Ed.), § 12.322[2], Vol. 4, p. 251, and whether there exists an exception as to some use either by the terms of the zoning ordinance or by statute is a question of law. However, if there is a showing of a reasonable probability of a change or the creation of an exception, “an important caveat to remember in applying the rule is that the property must not be evaluated as though the rezoning were already an accomplished fact. It must be evaluated under the restrictions of the existing zoning and consideration given to the impact upon market value of the likelihood' of-a ufíiange in zoning.” Nichols on Eminent’ Domain (3rd Ed:), §’ Í2.322['l], Vol.’ 4, p. 245; State ex rel. Morrison v. McMinn, 88 Ariz. 261, 355 P.2d 900.

In this case the-’land was zoned for agricultural and certain other uses not here material, but the use ■ of the land for industrial purposes generally”, was not permitted, and appellant made no attempt to show that there was at the time of the taking a reasonable probability that the land would be rezoned. Appellant’s position is that respondent is acquiring the land by condemnation to use it for an industrial purpose, the construction of a power plant to generate electricity, and that this establishes as a matter of law that there is a reasonable probability that the zoning restrictions will be changed in the reasonably near future to permit an industrial use generally. We should here note that if this were so, appellant still did not submit the issue of value to the jury according to the caveat previously mentioned. Respondent contends, however, that it is entitled to use the ’ land for the purposes alleged in its petition in condemnation without the necessity of- any change in the zoning regulations.

• Section 64.620 of the applicable county zoning - enabling act (Sections 64.-510-64.690) provides that the “powers granted-by' sections 64.510 to 64.690 shall not be construed - * * * to authorize interference with such public utility services as may-have been or may hereafter be authorized or ordered by the public service commission or by permit of the -county court, as the case may be.” When the purpose of this exception to the -powers granted by the enabling act is considered, it is obvious that the intent and purpose of the legislature was that a county which adopts and approves a county plan for zoning, as authorized by Sections 64.510 to 64.690, cannot by zoning restrictions limit or.prohibit the use of land by a public utility to provide authorized utility services. This would necessarily include the use of land by a public utility to construct a power plant to generate electric energy for distribution to the public. The public utility services of respondent include the supplying of electric energy to the public generally, and electric energy cannot be supplied unless it is produced. Assuming that he would be entitled to do so, appellant did not in his pleadings specifically challenge the right of respondent to condemn the land and use it for the purpose of the construction thereon of a power plant to supply its public utility services on the ground that the zoning restrictions prohibited such use. The only such challenge occurred in connection with an objection to evidence, and the real issue at the trial was the amount of damages for the taking of the land. However, by reason of the zoning regulations, regardless of the adaptability of the land, it was not available to be used for industrial purposes generally by appellant or any one else, including respondent.

The trial court received in evidence the testimony of several witnesses offered by appellants that the land was adapted to-industrial use generally when in fact it was-not available for that use, and they expressed their opinions as to the value of the land based upon that unavailable use. The admission of this testimony over objection was erroneous, and it was upon this ground that the new trial was granted. For the above reason the order granting a new trial should be and is affirmed.

It is so ordered.

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.'