author: DOUGLAS W. GREENE, Special Judge.

text:
    Anthony H. WEBER, Sr., (Plaintiff) Respondent, v. Mrs. Helen L. LARKIN and Lammers Realty & Construction Company, Inc., a Corporation, (Defendants) Appellants.
    No. 31725.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.
    Rehearing Denied Aug. 14, 1964.
    Milton F. Napier, John F. Mulligan, St-Louis, for defendants-appellants.
    Edwward C. Schneider, William GO’Donnel, St. Louis, for plaintiff-respondent.
   DOUGLAS W. GREENE, Special Judge.

This case is an action for a real estate broker’s fee claimed to have been earned by plaintiff for procuring a buyer of defendants’ property. Verdict and judgment below was for plaintiff in the sum of $1,-096.53, from which defendants have appealed.

Defendants were the owners of a residence located at 541 Mueller Court in St. Louis County, Missouri. Plaintiff’s evidence was that in July of 1960, Mrs. Larkin called him in connection with some other property, and in the discussion the property in question was mentioned. Plaintiff’s son offered to buy the property for $15,750 net to defendants, if defendants would pay the points, which was the premium paid to the lending agency. Defendants refused. Defendants agreed on August 8, 1960, in writing, to sell the property to plaintiff’s son, or his assigns, at a net price to sellers of $15,750, sellers to pay no points or commission (Plf’s. Ex. 1). Plaintiff and his son were given ten days in which to complete financing. The son was not able to complete the purchase as he was not able to obtain necessary financing. Plaintiff then obtained a conditional commitment for a loan of $15,700 on the property, provided the borrower could qualify for the loan. This commitment was issued on August 30, 1964 (Plf’s. Ex. 5). Plaintiff had brochures printed (Plf’s. Ex. 4) and ran ads in the papers in an effort to sell the home.

Bernard A. and Pauline Brauchy saw one of the brochures and contacted plaintiff in September of 1960. Thereafter, the Brauchys and plaintiff signed a sale contract on November 17, 1960 (Defts.’ Ex. B), in which contract the Brauchys agreed to buy the property for $17,200, paying $50 down and $950 on November 27th, and $500 on closing date, with balance of $15,-700 to be provided by an FHA Insured Loan for thirty years. The contract was made contingent upon the loan being procured. The sale was to be closed on December 15, 1960, or prior thereto, and time was of the essence of the contract. Thereafter, on November 23, 1960, plaintiff, defendants and the Brauchys signed a supplemental sale contract (Plf’s. Ex. 6), in which the Brauchys paid $1500 down, with the $15,700 balance still to be paid by an FHA Insured thirty year loan as per the FHA conditional commitment previously mentioned. The contract was contingent on the availability of such financing to the Brauchys, and the contract stated that if the commitment was not obtained by noon of November 30, 1960, the contract was null and void, and that the earnest money deposit would be returned to the purchasers.

The sale was to be closed on or before December 15, 1960, and time was declared to be of essence of the contract. The contract provided that defendants were to pay to plaintiff remuneration as agreed, with plaintiff paying the points out of his remuneration. The agreement for remuneration was defendants were to receive $15,750' net with plaintiff to receive as commission the amount of the sale price over such figure.

The Federal Housing Administration did not, before November 30th, or at any time thereafter, for that matter, issue a firm loan commitment of $15,700 to purchasers. They did issue a commitment of $14,500' to the Brauchys. Plaintiff tried to get the commitment raised, but could not do so. Plaintiff received an extension of time for closing the sale from defendant Helen L. Larkin on December 15, 1960, to extend time for closing to January 31, 1961, with all other terms and conditions of the contract to remain the same (Plf’s. Ex. 7). The Brauchys refused to sign an extension agreement, and no officer of the Lammers Realty or Construction Company, Inc., designated as such, signed it. The Brauchys demanded their $1,500 back, and after the Brauchys threatened to go to the Circuit Attorney, plaintiff gave them their money back on January 9, 1961. Plaintiff had no further contact with the Brauchys after this date. On January 15, 1961, plaintiff gave the key to the property back to defendants at defendants’ request.

The General Mortgage Company made an FHA Insured Loan in the amount of $14,500 to the Brauchys on February 3, 1961, after having been asked to process the loan by defendants on January 16, 1961. The FHA commitment for $14,500 to the Brauchys was dated January 25, 1961. Two witnesses, Russell LaBoube and Karl Kirber testified that plaintiff requested appraisals for loans on the property in question. There was no evidence that either request was before December 15, 1960. LaBoube testified defendants told him not to bother, that the deal had fallen through, and Kirber’s agent went to the property on January 30, 1961, to appraise it, but was refused admission to the property. Neither appraisal was for an FHA Insured thirty year loan. After sale by defendants to the Brauchys on February 3, 1963, plaintiff brought suit for a commission. Defendants, at close of plaintiff’s evidence, moved the court to direct a verdict in their favor for the reason that under the law, the pleadings and the evidence, the plaintiff was not entitled to recover against the defendants, or either of them. This motion was overruled by the trial court.

Defendants’ evidence was that Mr. Brauchy contacted plaintiff on or about December 15th, and asked about the FHA financing, that plaintiff said the matter was still in the hands of the FHA, so he went to the FHA himself, where he was told that he could not qualify on the basis of the contract; that Brauchy insisted plaintiff return his money as the loan had not gone through, but plaintiff would not return it; that plaintiff tried to get Brauchy to sign an extension agreement to the contract, but that he refused; that he went back to plaintiff and again asked for his money and that, after threatening suit, plaintiff returned his down-payment of $1,972.50 (Defts.’ Ex. C and D). The Brauchys then contacted defendant Larkin and told her he had his money back and that cleared her to go ahead with her house, that he had no more to do with it. Brauchy did not regard himself as a prospective purchaser at that time. On January 13th, after talking to defendant Larkin, the Brauchys agreed to purchase the property for $16,000, with $1,500 down, and the balance of $14,500 by an FHA insured loan. Defendants obtained the key to the property from plaintiff about December 15, 1961. Neither defendants nor Brauchy ever did anything to interfere with the sale through plaintiff prior to December 15, 1961. At the close of all the evidence, defendants again moved for a directed verdict at the close of all the evidence, which motion was overruled.

In order to recover a commission, a realty broker must show that he produced a buyer who was ready, willing, and able to buy on the terms set by the owner — the word “able” as used here refers to financial ability. Sargent v. Wekenman, Mo.App., 374 S.W.2d 635.

Prior to December 15, 1961, plaintiff was unable to get a firm commitment for the Brauchys in excess of $14,500. A firm commitment of $15,700 was necessary to complete the sale under the contract. Plaintiff wanted more time to try and arrange financing. Until December 15, 1961, the closing date, the Brauchys were not able to fulfill their agreement as one of the conditions of the contract, namely, the FHA Insured Loan of $15,700, could not be obtained. It was never obtained, nor was there any evidence that it could ever have been obtained. Defendants did nothing to keep it from being obtained. When the Brauchys could not obtain the loan, they demanded their down-payment back, and finally received it after considerable delay. The contract was at an end, as its conditions had not been met during the stipulated time, through no fault of defendants or purchasers.

In order for a real estate agent to recover in his action for a commission allegedly due after vendors conveyed to purchasers procured by agent, the agent must prove, by the greater weight of the credible evidence, full compliance with the terms of his special contract with vendors (Evans v. Jacobson et ux., Mo.App., 269 S.W.2d 156, KCCA; Westerman v. Peer Inv. Co., 197 Mo.App. 278, 195 S.W. 78; Rogers v. McCune, Mo.App., 283 S.W.2d 872; Jones v. Hill, Mo., 18 S.W.2d 382). However, if vendors prevent or hinder the fulfillment of the contract, and it is shown that the conditions of the contract would have been fulfilled except for such interference or hindrance by vendors, then a showing of compliance with the special conditions of the contract is not necessary to permit the agent to recover. Spitcaufsky v. Guignon Real Estate Co., Mo., 321 S.W.2d 481, 1. c. 487.

In the Evans case, supra, the agent was authorized, and did agree to assist purchasers to obtain a first mortgage loan. He was unable to obtain the loan (which is the exact situation here) and agent was notified that his agency was terminated. Purchaser demanded his earnest money deposit back and received it from the agent. Purchaser then bought the property from vendors through another agent who procured the loan in question. The contract in the Evans case provided that if vendors were unable to obtain the loan, the contract was null and void. The contract here (Plf’s. Ex. 6) plainly states that if a commitment for FHA insured thirty year loan for $15,-700.00 was not obtained by November 30, 1960, that the contract was null and void. No such commitment was ever obtained. Plaintiff sought, on December 15, 1960, to extend the closing date of the contract from December 15, 1960 to January 31, 1961. Defendant Helen Larkin did sign an extension agreement. She testified that she did so on the representation of plaintiff that the Brauchys would sign it also. This testimony was not disputed. The Brauchys did not, and would not, sign the extension agreement, nor had they any obligation to do so. There is not a scintilla of evidence in the case that defendants did anything to hinder plaintiff’s efforts to sell the property in question to the Brauchys at any time when the Brauchys were ready, willing and able to go ahead with the sale.

Therefore, the contract in question (Plf’s. Ex. 6), which was the only agreement defendants had with plaintiff, became null and void on November 30, 1960, as it was not extended by the purchasers, who would be necessary parties to such an agreement if they were to be bound, and was not even extended by both defendants, as only Helen Larkin had signed it. Viewing the evidence in the light most favorable to the plaintiff, as we must do, Brophy v. Clisaris, 368 S.W.2d 553; Reese v. St. Louis Public Service Co., Mo.App., 368 S.W.2d 540, there was no evidence in the case that during the life of the contract in question, plaintiff ever produced a purchaser who was ready, willing and able to perform according to the conditions of the contract, and no evidence that defendants hindered in any way, efforts of plaintiff to sell to the Brauchys.

The failure of the trial court to sustain defendants’ motion for a directed verdict at the close of all the evidence constitutes reversible error.

For these reasons, the judgment should be reversed and the cause remanded with instructions to enter judgment for the defendants. It is so ordered.

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


source: Caselaw Access Project

author: L. F. COTTEY, Special Judge.

license: Public Domain

text:
    Sam GALATI, Plaintiff-Respondent, v. NEW AMSTERDAM CASUALTY COMPANY, Defendant-Appellant.
    No. 31709.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Aug. 14, 1964.

      Moser, Marsalek, Carpenter, Cleary - & Jaeckel, F. Douglas O’Leary, St. Louis, for defendant-appellant.
    , Jerome J. Duff, Walter S. Berkman, St. Louis, for plaintiff-respondent.
   L. F. COTTEY, Special Judge.

From a judgment on an automobile collision policy in favor of the insured, the insurer appeals. The pertinent facts, all of. which are stipulated or established by 'uncontradicted evidence to which no objection was made, are as follows:

Sam Galati, the plaintiff, leased a Chevrolet automobile from Manchester Lend-Lease Company on August 1, 1957, for a term of two years under a written contract providing for monthly rental payments of $75 each during the term of the lease. Title to the vehicle remained vested in the lessor. The contract, which has been lost and is not before us for examination, admittedly contained a provision allowing Sam to purchase the car at any time during the life of the lease at a figure to be computed by some no-longer-remembered formula whereby a portion of the rental payments was credited on the purchase price. At the time the lease was entered into Sam was required to obtain, and did • obtain from appellant, a policy of collision insurance on the car payable to .himself and Manchester Lend-Lease Company as •their interests might appear. That policy was in force at all times herein mentioned. The specific provision of it with which we are concerned is denominated Exclusion (1). It recites that the coverage should not apply “ * * *' if the automobile is or at any time becomes subject to- any .bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance not specifically declared and described in this policy.”

Sam used the automobile for “about seven or eight months” and made his rental payments regularly. At the end of that time his aunt, Mrs. DeBlasi, expressed an interest in buying it and Sam cooperated with her fully in that project. Together they went to Manchester Lend-Lease Company where, as Sam testified, “ * * * We told them that she was going to take over the car and pay the balance * * that “ * * * She was going to buy the car.” The Company agreed. By application of the formula mentioned above it was ascertained that the sale price of the auto- ' mobile at that date was $2,335.97. Mrs. DeBlasi paid the full amount on the spot, •signed “some 'papers” of undisclosed import, and was informed by the Company’s representative that in due course she would receive the certificate of title. Sam drove her home, turned over to her the car and his only set of keys, testified that “ * * * as far as I was concerned it was then her car,” and never thereafter expressed or displayed any further interest in it until the filing of this suit. Two days later Mrs. DeBlasi demolished the car in a collision. Sam’s policy had never been assigned to her and she had no insurance of her own. The certificate of title to the car, duly assigned as of the date of the sale, was received by her through the mail some two weeks after the accident.

Sam instituted this action a year later in the Magistrate Court of the City of St. Louis, joining Manchester Lend-Lease Company as a co-plaintiff. That Company, however, seems to have gone out of business in the meantime, and we gather that it was named as a co-plaintiff without its knowledge or consent. In any event it was stricken as a party plaintiff and the cause has since been prosecuted in Sam’s name alone. His petition proceeds upon the theory that he was the lessee of the automobile at the time of the collision and that it was then “ * * * being operated with the (his) permission and consent * * The cause was submitted to the Magistrate upon an agreed statement of facts which concluded with this recitation: “ * * * The defendant has denied payment of the claim because of exclusion (I) as contained on page 3 of said policy.” No other defense was suggested; no answer was filed.

The result of that submission was a judgment in Sam’s favor from which the insurer appealed to the Circuit Court. There both sides filed motions for summary judgment to which were attached a copy of the agreed statement of facts entered into in the Magistrate Court and the depositions of Sam and Mrs. DeBlasi. The insurer’s motion specified exclusion (1) as a defense to the policy, and then recited: “Plaintiff Sam Galati parted with all interest in the automobile in question prior to the collision mentioned in plaintiff’s petition and sustained no loss as a result of said collision; therefore, plaintiff does not have sufficient interest to maintain this cause of action or to recover under defendant’s policy.” We construe that recitation as an allegation that Sam had no insurable interest in the automobile at the time the loss occurred. The point was evidently not stressed at the hearing on the motion, however; at any rate the trial judge made no mention of it in his memorandum opinion. Instead, he concluded that the controlling “ * * * issue in the case is the application of exclusion clause (1) * and he disposed of it by holding that the language of the clause was “ * * * ambiguous and of doubtful meaning * * ” when examined against the background of the conceded facts, and therefore to be construed against the insurer. The insurer’s motion was accordingly denied; Sam’s motion was sustained, and from the ensuing judgment in his favor this appeal has been perfected. Appellant-insurer’s brief presents ■ two points for our consideration.

In Point 1 appellant renews its insistence that the exclusion clause is a complete defense to the action because the automobile was subject to a “purchase agreement” at the time the loss occurred. No authority defining that term within the framework of facts similar to those in this case has been called to our attention, and we have found none. Of course, in the light of the fact that no certificate of title was delivered to Mrs. DeBlasi at the time the purchase money was paid, the sale was void. Sec. 301.210, RSMo 1959, V.A.M.S.; State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn. v. Cox, 306 Mo. 537, 268 S.W. 87, 90, 37 A.L.R. 1456; Still v. Travelers Indemnity Co., Mo., 374 S.W.2d 95, 99. But a “purchase agreement” and a “void sale” are surely not the same thing, or at any rate not necessarily so, and to ask us to define the one term so as to include the other is implicitly to concede, it seems to us, that the language of the policy provision is ambiguous. We concur with the learned trial judge in holding that an ambiguous provision cannot avail as a policy defense. Appellant takes the position' in this court, however, that the invalidity of the sale is of no significance in assessing the merit of its defense. It argues that any agreement looking to the sale of the car constituted an “encumbrance” on it — defined, in turn, as ■“a burden or charge' on 'property” — without apparent regard to whether such agreement was valid or void, executed or ex-ecutory. In support of that proposition a number of authorities áte cited, including a 24-page Annotation fotínd at 16 A.L.R.2d 738; but none touches thé question before us. They deal with' mortgages and liens of • similar character which are clearly definable ás “a burden or charge on property” — which work “a depletion of the assured’s interest in the property” and a corresponding “increase in the risk” to the insurer, as, typically, in Smith v. Motors Ins. Corp., Mo.App., 270 S.W.2d 128 —and hold, with near unanimity, that a provision excluding coverage in- the event the automobile is subjected to such an encumbrance is valid; with all of which we have no - quarrel; But as we understand it we are invited by this approach to rule not only that a “purchase agreement” was in effect at the time the loss occurred in this case,- but also thdt such agreement is clearly within the intendment and commonly understood meaning of the terms “mortgage or other encumbrance” as used in' the exclusion clause. We think the settled rules of construction of insurance contracts do not allow us to accept that invitation. “ * * * [Wjhere there is á clause in a policy providing for a forfeiture, it will be enforced only when required by the strict letter of the contract and it will not receive ■hriy' aid by judicial construction. * 45 C.J.S. Insurance §”657,^.’:573. ' L

Moreover, although the point has not been suggested by the briefs, it is clear that both sides have treated this case from its' inception as involving a policy issued to' Sam alone, or, what amounts to the same thing, as vesting in him separate and severable rights which he is authorized to assert, and indisputably has asserted, independently of Manchester Lend-Lease Company, his co-insured. It follows, as- - a logical corollary to that theory, that any act done exclusively by Manchester Lend-Lease Company is, in effect, an act done by a stranger to the contract, and cannot be relied upon to defeat Sam’s separate and independent rights. Sam had no title to the car; he could neither sell it nor effectively agree to sell it. Any sale of the car, or attempt to sell it, or agreement to sell it could only have been made, or undertaken, or consummated by the owner, Manchester Lend-Lease Company. Whether such an act on its part would have defeated its own right to recover under the policy we need not decide because no such right is asserted here and Manchester Lend-Lease Company is not a party to the suit.

Appellant’s Point 2 combines two wholly unrelated propositions. As background for the first of thes.e it is necessary to say that in the course of her deposition Mrs. DeBlasi testified that Sam has promised to refund her loss out of his anticipated recovery in this suit. Contending that in the light of the void sale Mrs. DeBlasi was a “bailee” of the automobile, appellant argues that this suit has really been brought for her benefit in violation of Condition 17 of the policy which reads: “The insurance afforded by this policy shall not enure directly or indirectly to the benefit1 of any * * *, bailee liable for loss to the automobile.” For two reasons that proposition is without merit: First, because it was never suggested in the trial court but made its maiden appearance in appellant’s motion for new trial; and Second, because the disposition that Sam may make, or may have agreed to make, of the money he seeks to recover in this suit is not a matter of legitimate concern to the insurer.

For its second proposition under Point 2 appellant says that Sam’s “ * * * ■interest had been terminated prior to the accident * * * ” and, consequently, “ * * * there was no loss sustained by any person entitled to recover under the policy. * * * ” We have construed similar language in the insurer’s motion for summary judgment, quoted in an earlier paragraph of this opinion, as raising the issue that Sam had no insurable interest in the automobile at the time the loss occurred. And although the term “insurable interest” has nowhere been used in the pleadings, proceedings or briefs in this case, and although not a single decision has been cited in support of the proposition that Sam had no insurable interest in the property at the time of the loss, or that such an interest is vital to his recovery, we have concluded that the point is nevertheless before us for consideration on this appeal; but only because it is impossible for the insurer to waive it. “ * * * Insurable interest is a requirement of public policy against a gambling contract and cannot be waived’’ (Emphasis ours.) Estes v. Great American Ins. Co. of New York, Mo.App., 112 S.W.2d 153, 156. “ * * * To hold otherwise would abrogate the rule. * * * ” Woods v. Washington Fidelity Nat. Ins. Co., Mo.App., 113 S.W.2d 121, 123.

“It is a fixed rule of insurance law that insured must have an interest of some kind in the subject matter of the insurance. An insurable interest on the part of the person taking out the policy is essential to the validity and enforceability of the contract or policy. * * *” 44 C.J.S. Insurance § 175, p. 869. “ * * * As a prerequisite to the enforcement of an insurance contract, public policy demands that the insured have an insurable interest, otherwise the contract would become a gambling contract and void. * * * ” American Central Ins. Co. v. Kirby, Mo.App., 294 S.W.2d 556, 560. Furthermore, in the case of property insurance as distinguished from life insurance, “* * * an insurable interest must exist both at the time of the malting of the contract and at the time of loss *. * 44 C.J.S. Insurance § 175c, p. 871; Becker v. Farmers’ Mut. Fire Ins. Co. of Rock Tp., Mo.App., 99 S.W.2d 148, 152. The necessary interest in an automobile exists when, but only when, the insured “ * * * derives a benefit from the existence of the vehicle, or would suffer a loss from its destruction. * * * ” 44 C.J.S. Insurance § 177, p. 873. “ ‘ * * * “The loss must not be indirect or sentimental, but direct and actual. * * * ” American Central Ins. Co. v. Kirby, supra, 294 S.W.2d p. 561. It must be a “pecuniary loss.” When the insured parts with his interest in the insured property he stands as though he had never had any right in it, and from that moment forward his policy is void as a mere wagering contract. Estes v. Great American Ins. Co. of New York, supra, 112 S.W.2d p. 157.

There can be no doubt on the record before us that Sam acquired two, and only two, interests or rights in the automobile under his original lease: First, the right to its possession and use; Second, an option to purchase it. He voluntarily surrendered both of those rights to Mrs. De-Blasi two days before the car was damaged. As he put it, “It was then her car, as far as I was concerned.” Indeed it was, as far as he was concerned and hence as far as this suit is concerned. The owner’s failure to make timely delivery of the title certificate to Mrs. DeBlasi does not alter the fact that she acquired all the rights Sam had. There was no way thereafter that he could “ * * * derive a benefit from the existence of the vehicle * * Nor was there any way he could “ * * * suffer a loss from its destruction. * * * ” The Manchester Lend-Lease Company, having participated willingly and actively in the transfer of Sam’s rights to Mrs. DeBlasi, and having received from her the full value of the car, could in no conceivable way recover from him for its subsequent loss. He was no longer “ * * * exposed to the danger of the loss against which he was indemnified * * Key ex rel. Heaton v. Continental Ins. Co., 101 Mo.App. 344, 353, 74 S.W. 162, 165. His insurable interest bad terminated. He owned nothing, he lost nothing, and he can recover nothing.

The.judgment.is reversed.

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


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Francis L. HENDERSON and Vernon L. Henderson, Defendants-Appellants.
    No. 31682.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.
    • Anding & Anding, James L. Anding, Virginia B. Anding, Pacific, and Robert L. Borberg, Union, for defendants-appellants.
    Robert L. • Hyder, Chief Counsel, Mis•souri State Highway Commission, Jefferson City, Samuel C. Ebling, Robert C. Finot, 'Asst. Counsels, Missouri State Highway ■Commission, Kirkwood, for plaintiff-re‘spondent
   L. F. COTTEY, Special Judge.

Condemnees appeal from a judgment in their favor which they contend is grossly inadequate. Two rulings by the trial court form the basis of their complaint, one on the admissibility of evidence of the price paid by them for their land as bearing on its value, and the other on the qualification of a witness to express an opinion as to its value. It is necessary to notice only such facts as bear on those points.

Condemnee Henderson, testifying on behalf of himself and his wife as the first witness in the case, established that they are the owners of a 30.99-acre tract of unimproved land, partially wooded and of uneven terrain, with a frontage of 1162.2 feet on Supplementary State Highway O, near the town of Robertsville in Franklin County. Condemnor proposes to construct another supplementary highway, Route AK, on a sweeping curve through the approximate center of this tract, with various cuts and fills, to connect with Highway O opposite condemnees’ land. The project requires 3.5 acres of condemnees’ land for right-of-way and will reduce their frontage on Highway O by something like 200 feet. With the exception of about eight acres of meadow from which a hay crop has been annually harvested, the land has lain idle ever since condemnees acquired it. Neither this land nor any other in the vicinity of it was shown by Mr. Henderson’s testimony to have appreciated materially in value since that time. In the course of his direct examination he stated that “the property on the north side of Highway O,” directly across from his land, was “subdivided into lots.” That was the only reference he made to any subdivision in the community. He gave no evidence as to when it was laid out, or as to its size and the nature and extent of its development, or as to its- aggregate value or the value of any lot in it. He testified that his land in its present condition was suitable for development as a suburban residential district, although he had made no effort to develop it and had no plans for doing so. IJe expressed the opinion that for that use the. land was reasonably worth $1,000 per acre. He then concluded that the route of the proposed new road, and the cuts and fills incident to its construction, would both reduce the acreage available for building sites and render a large portion of the remainder inaccessible, with the result that his damages, direct and indirect, would not be less than $15,000.

On cross-examination he was asked without objection when he acquired the land. He replied that he had purchased it in two parcels, 19.7 acres in 1956, six years and-one month prior to the appropriation, and the balance about two years thereafter. He was then asked to state what he had paid for it. To that question this objection was made: “If the Court please, that is no test of the damages. The test is the value before and immediately after the taking. I object to him asking what he paid for it. It is not relevant and material.” Following a colloquy between the court and counsel the objection was renewed and overruled and the witness then answered that he had paid $2,875 for the first parcel and $1,800 for the second, an average price of $150 per acre.

The propriety of admitting that evidence is the first question before us. “It is the established rule in this state, and - generally, that the price an owner paid for property being condemned is admissible as some evidence of its value at the time of appropriation.” State ex rel. State Highway Commission v. Rauscher Chevrolet Company, Mo., 291 S.W.2d 89, 92. Nevertheless, say condemnees, citing the same case as authority for their position, the rule does not apply where other circumstances are shown which destroy the relevancy or probative value of that evidence, as, for instance, where the date of the purchase is too remote to furnish a reliable guide, or where there have been marked changes in conditions and values since the date of the purchase. They insist that in this case, (a) the-six year interval between the date of the purchase and the ’ appropriation was so extreme as to render the purchase price not only worthless as evidence hut downright prejudicial, and (b) that proof, subsequently adduced, which tended to establish that the community was being built up and subdivided constituted a showing of such marked changes in conditions and values as to- destroy the probative value of the purchase price as evidence. For three reasons we think those objections are not valid.

In the first "place, mere remoteness in point of time is not the controlling factor in determining whether evidence as to the purchase price of the land is admissible. Under the rule quoted above such evidence is to .be received for what it is worth, except where it appears that in the interval between the purchase and the appropriation, whether that interval be long or short, conditions or values have changed so significantly that it can no longer be said that the purchase price is “some evidence” of the worth of the land on the latter date. The change in conditions, not the lapse of time, is the determinative factor. In State ex rel. Highway Commission v. Malone, Mo.App., 45 S.W.2d 84, relied upon by con-demnees, the admission of such evidence was criticized because “all the testimony” showed that in the interval since the purchase — an interval covering portions of two historic periods of depression in farm land values — condemnees’ farm had “‘depreciatedKin value;” and in State ex rel. State Highway Commission v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, the court judicially noticed the effect of- the Great Depression on land (Values during the five years following the í-928< purchasé date. On the •other hand in City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, it was held- that evidente of : the purchase price paid some ten or fifteen years prior to the approjiriatioii was not so remote “in point of timé as to afford no fair criterion of valúe;” and in State ex rel. State Highway Commission v. Johnson, Mo., 287 S.W.2d 835, evidence of the purchase price paid some twenty-five years prior to the appropriation was not criticized on the ground that so long a lapse of time rendered it ipso facto irrelevant.

In the second place, the propriety of a trial judge’s ruling on the admissibility of evidence must be reviewed in the light of the circumstances existing at the time the ruling was made. If evidence is apparently competent and relevant on its face when offered, the trial judge must admit it; and he is not to be convicted of error in doing so if a showing is after-wards made that, for some reason not previously disclosed or discernible, the evidence is actually improper. It is not demanded of a trial judge that he possess the quality of prescience. And when such a-subsequent showing is made and the objectionable aspect of the evidence is thereby brought to light, the party who originally objected to it has the opportunity, and it-becomes his duty, to renew his objection to - it and to move to strike it;1 and his failure to do so will constitute a waiver of his objection. Markow v. Gross-O’Reilly Chandelier Co., Mo.App., 190 S.W. 624, 627; State ex rel. State Highway Commission v. Rauscher Chevrolet Company; supra, 291 S.W.2d 92. In this case, then, at the time Mr. Henderson was asked to state the price he had paid for the farm there was nothing in the record to indicate that it had ap-" predated perceptibly in value since the date of its purchase or that conditions in ’ any other respect had changed so materially that its purchase price could no longer be regarded as “some evidence of its value at the time of the appropriation.” He did not testify at all with respect to any increase in real estate values in the interim, either in the community generally or with reference to his particular farm.- And his cryptic statement that a tract of land across the highway from his farm had been “subdivided into lots,” unaccompanied by a single informative detail, wholly failed to support condemnees’ present contention that conditions in the neighborhood had drastically changed in’the intervening six years. For all the trial court knew at the time, and -for all we know now, that subdivision existed there in its present state at the time ■condemnees purchased their farm. Whatever evidence there may he in the record -of a population increase in the community, or of the development of one or more ■subdivisions in the vicinity, or of any consequent increase in land values, came from ■condemnees’ second witness, Mr. Daley. It was not before the court at the time Mr. Henderson testified. If condemnees thought; in the light of that subsequently .adduced evidence, that a sufficient showing had been made to deprive the previously proven purchase price of all evidentiary value, then it was their duty to call that ■circumstance to the court’s attention and move to strike the testimony as to the pur•chase price of the farm, on the ground that it had become “incompetent and inadmissible because of (this) later development;” and, “having failed to so proceed,” they have “precluded our determination of the question of whether the evidence was inadmissible by reason of the subsequent testimony of the witness (Daley).” State ex rel. State Highway Commission v. Rauscher Chevrolet Company, supra, 291 S.W.2d 92; Malone v. Harlin, 220 Mo.App. 102, 278 S.W. 806, 808.

Finally, condemnees’ objection to the question at the time it was asked did not, in our opinion, sug'gest the point on which they now rely. Counsel’s statement to the effect that the evidence sought to be ■elicited “is no test of the damages” and “is •not relevant and material” is patently in- . accurate under the rule quoted from the Rauscher Case, supra, and in the light of the further fact that there was no evidence before the court at the time to in- ■ dicate that the rule should not prevail. And counsel’s further statement that “(t)he test is the value before and immediately .after the taking,” while entirely true, was irrelevant to the point at issue; it was a -mere abstract statement of law, not a .■ground for objecting to evidence which -was prima facie competent to establish the -value before the taking. We have, therefore, nothing more than a general objection which “ * * * could have been sufficient only if the evidence was inadmissible for any purpose,” State ex rel. State Highway Commission v. Rauscher Chevrolet Company, supra, 291 S.W.2d 92; and since proof of the purchase price is admissible as “some evidence” of the value of the land at the time of its appropriation, it was proper to overrule the general objection.

Condemnees’ second point relates to the qualification of Witness Moors, the proprietress of a sandwich shop and beer tavern, to testify to the value of the land in question before and after the appropriation. They allude with more sarcasm than sincerity to the lady’s occupation as her only “qualification.” She had others. She testified that she had been a resident of nearby Robertsville for several years; that she owned real estate in that vicinity which, incidentally, would be benefitted by the construction of Route AK; that she had made loans “to people on property in the Rob-ertsville area” and had “held deeds of trust” on the properties; that she had “been familiar with the sales of property in the Robertsville area” for the past ten years and was “aware of what property is selling for” in that area; that she had “made a lot of calls on different property that was for sale and priced it” and, although she was not a licensed real estate broker, had on one occasion “handled the sale of property” for a brother-in-law of hers; that she was “familiar with the Henderson farm” and had “known about it for a number of years;” that although she had not walked the right-of-way line of the proposed new highway as it traverses condemnees’ farm, she had looked it over from several points on adjacent roads and, from having examined the engineer’s plans, had .determined in a general way what course the new highway would take; that she had “an opinion as to the fair market value of the Henderson property immediately before this taking” and was prepared to express it. It is too clear for argument that she was qualified to express it, under all the authorities, and equally qualified to express an opinion as to its value after the taking. The weight to be accorded her opinions was, of course, a matter reserved exclusively for the jury’s determination. Newkirk v. City of Tipton, 234 Mo.App. 920, 136 S.W.2d 147, 151; City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 848-849; State ex rel. State Highway Commission v. Bailey, 234 Mo.App. 168, 115 S.W.2d 17, 26; State ex rel. State Highway Commission v. Devenyns, Mo.App., 179 S.W.2d 740, 743; Union Electric Company of Missouri v. Simpson, Mo.App., 371 S.W.2d 673, 677.

No error being shown, the judgment is affirmed.

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

WOLFE, j., not participating.


author: BRADY, Commissioner.

text:
    Vernon WOODRUFF, Plaintiff-Appellant, v. TOURVILLE QUARRY, INC., and Continental Casualty Company, Defendants, Continental Casualty Company, Defendant-Respondent.
    No. 31680.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.

      Gragg, Aubuchon & Walsh, St. Louis, •and Irving L. Cooper, Clayton, for plaintiff-•appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, John S. Marsalek, St. Louis, for •defendant-respondent.
   BRADY, Commissioner.

In a workmen’s compensation action the referee awarded the plaintiff, hereinafter referred to as the “employee,” the sum of $3,181.75. This award remained unpaid and the employee filed an action against both defendants ‘‘pursuant to Section 287.500,” RSMo 1959, for judgment on that award. The circuit court affirmed the award as to Tourville Quarry, Inc., hereinafter referred ■to as the “employer,” but found in favor of the respondent, hereinafter referred to as “Continental.” The employee appeals from the trial court’s action with regard to Continental. We will refer to the Division of Workmen’s Compensation as the “division” and the Industrial Commission of this state as the “commission.”

At the hearing before the circuit court the parties jointly introduced the complete record of the workmen’s compensation proceedings. From that record and from .the hearing in the circuit court the- following facts appear.

On May 12, 1961, the employee filed a claim in the Division of Workmen’s Compensation seeking compensation for an accidental injury sustained on August 20, 1960. He filed the claim against Tourville Quarry, Inc. and Russ Tourville. A copy of the claim was mailed to Continental at its office in St. Louis, Missouri. Keathley, a member of the Missouri Bar employed by Continental as supervisor of workmen’s compensation claims, received this copy together with a letter requesting an answer. The copy received by Keathley at Item 4 reads as follows: “4. Names and addresses of all insurers: -that is, none were shown. Keathley returned -the copy of the claim to the division together with a letter stating that Continental had not carried this coverage since April 1, 1960 - and requesting that the division, “Please acknowledge receipt of this letter, so that we will know your records have been corrected that we are not the insurer:” The letter also shows on its face that a copy was sent to the employee’s attorneys. On May 19 Continental, appearing specially and solely for the purpose of raising the issue that it was not the insurer, filed an answer denying that it was the workmen’s compensation insurer for Mr. Tourville or for Tourville Quarry on August 20, 1960, the date of the employee’s injury. Three days later the division wrote the employer and Mr. Tour- ■ vjlle personally and requested that they furnish “* *. the: name and-address of • your workmen’s compensation insurance carrier as of, the date of injury * * Shortly ther'eafter the division wrote a letter requesting a reply to its earlier letter. No reply to either communication appears in this record.

On Jun.e 8 an answer to the employee’s claim was filed. The answer states that the “Employer and insurer deny each and every allegation contained therein.” This answer was filed on a printed form. Lines 24 and 25 of that form request the name of the “Employer and/or Insurer’s Attorney” and his address. The name of Harry J. Nichols appears typewritten therein with the address. of 111 South. Meramec, Clayton 5, Missouri. Line 20 of that form requests the .employer’s signature and typed therein are the words “Tourville Quarry, Incorporated by Harry J. Nichols.” Mr. Nichols’ signature appears above his typewritten name. At line 22‘ the insurer’s signature is requested, and in handwriting on that line .appears the words “Cont. Cas. Co. by Harry J. Nichols.” On June 16 Nichols wrote Continental a letter in,which he stated that he had answered the claim for his clients, Russ Tourville and Tourville Quarry, Inq. He enclosed a copy of the answer he had filed. In This copy the space provided for the'signature.,of the insurer and the insurer’s attorney was- left blank. The employee requested a prehearing conference .and on the notice of such a conference Con.tinental again- appears as the insurer. On the date set for that hearing the minutes of that division show the following notation: “7/27/61. Mr. Cooper and cl. in person. .Mr. Nichols appears for employer only in spite of his signature for insurer on answer of 6/9/61.” -

Under date of December 1, 1961 the division issued a new notice of a hearing to- be held on Friday, December 22, in St. Louis. This notice again named Continental as insurer. By letter of December 5 respondent again advised the division that- it was not the-employer’s-insurer on the date of the alleged accident and hád not been since April 1, 1960 and requested the division correct its records. A copy of this letter was sent to the employee’s attorneys. On December 8 a notice of the cancellation of'this hearing was issued by the division stating “Insurer: Unknown (Copy to: Continental Casualty Company).”

The division then issued a new notice of hearing to be held on January 18, 1962, at the St. Louis offices of the division. In this notice the only reference to an insurer was “Insurer: Unknown.” Continental’s name does not anywhere appear on that notice. The minutes of that hearing show that the employee appeared with his attorney and that at that hearing Nichols, by leave, formally withdrew as attorney for employer and appeared only for Russ Tourville and Tourville Quarry, Inc. A question having arisen as to the venue in St. Louis City, the hearing was ordered to be reset at Union, Missouri, and the division issued a notice that the claim was reset for hearing on April 5, 1962 at Union, Missouri. Opposite the word “insurer” on this notice appears the word “unknown.”' At no place thereon does Continental’s name appear nor the name of any attorney for it. The division’s minute for this date shows: “4/5/62. Em■ployee by Irving Cooper. Employer (individually) John Waller. Insurer — no appearance.” The affidavit of Spencer H. Givens, director, Division of Workmen’s Compensation, was obtained in lieu of his deposition and was introduced in the trial court without objection. Mr. Givens stated that all notices of hearings were-issued by the home office of the division in Jefferson . City and that carbon copies were mailed only to the parties and attorneys named in the notice. He further stated that in the notices of hearing in this case dated December 22, 1961 and March 22, 1962 the word “unknown” appeared after the word . “insurer” and that no copies of the notices of hearings for either date were mailed to respondent- by the division.

A paper identified as the division’s revised form A-25 bearing the number and style of the claim and printed questions designed to elicit admissions and denials is in evidence. Among the questions addressed to employee the following appears: (Words emphasized are in handwriting.) “1. Is it admitted that on or about 8/20/60 No Russ Tourville and/or Tourville Quarry, Inc. was an employer operating under the provisions of the Missouri Workmen’s Compensation Law? Yes. That their liability under said Law was fully insured by None —None.” The division’s file also includes a paper containing Continental’s name in the caption, and showing the following information : Policy number, AR4334621; policy period, from 4/5/S9 to 4/5/60; insured, Tourville Quarry, Inc.; address, Sullivan, Missouri; branch, St. Louis Branch, assigned risk.

On June 25, 1962, the referee made an award in favor of the employee and against Tourville Quarry, Inc. as employer and also against Continental as insurer. This award was based upon the hearing of April 5, 1962. A copy of the award was mailed to Continental with a letter advising that if an application for review was not made to the commission within ten days, the award would become final, and no appeal would lie thereafter. This letter also contained the statement, “Any mistakes should be called to our attention at once.” When the award was received by Continental, both Keathley and Cleveland, the St. Louis manager of its office, were away on vacation. Notice of the award was received by a Miss Bagley, a secretary in the office who wrote to the division over Cleveland’s signature four days after receiving notice of the award to the employee. The letter contained the statement that the award must have been sent to Continental by mistake because Continental had theretofore advised the division that it had not been the insurer since April 1, 1960 and returned the award to the commission with the request that it be sent to the employer’s Workmen’s Compensation carrier.

Upon Keathley’s return he wrote to the division requesting that the division send its file to Continental’s St. Louis office. Examination of this file in July, 1962, afforded Continental its first knowledge that it had been named in the employee’s claim as the insurer.. Keathley again wrote to the division calling attention to the fact that on two separate notices for hearings during the progress of this case the insurer was stated to be “unknown”; that Continental had not been listed as an addressee as to either of the last two notices of hearing and had not been notified of the setting of hearings on those dates. He requested that the award be set aside as against Continental or that a hearing be held and Continental given an opportunity to prove that it was not the compensation carrier for Tourville Quarry, Inc. upon the date of this accident. The counsel for the commission wrote to Keath-ley stating that it was his opinion that the commission could not comply with his request as it was without jurisdiction, more than ten days having elapsed after the award was entered.

The substance of the pleadings filed by the employee in the circuit court is that the award on hearing was final, conclusive, and “res adjudicata”; that the referee had jurisdiction over Continental; that the award was valid against Continental; and that Continental was estopped, precluded and barred from challenging the validity of the award inasmuch as it had failed to avail itself of its statutory right to r.enew and appeal. The contention advanced by Continental in its pleadings was that the award was void because of lack of jurisdiction over Continental arising from the fact that Continental had no notice of the hearing. The only other pertinent matter contained in the pleadings arises from the allegations found in Continental’s amended answer. Therein Continental alleged that its policy had expired some five months prior to the employee’s injury, and that Continental’s name was affixed to the answer filed before the division by Attorney Nichols without Continental’s knowledge or authority. The employee did not deny either of- these allegations in his reply. Proceedings of this character are of a civil nature and are governed by the rules of civil procedure. Rule 41.02, V.A.M.R. The effect of the employee’s failure to deny the allegations contained in Continental’s amended answer and specifically referred to above was that these facts are to be deemed admitted. Rule 5S.11, V.A.M.R.

We are of the opinion that the award to the employee was void. Appellant refers to those provisions of § 287.300, RSMo 1959, V.A.M.S. which provide that service on the employer should be sufficient to give the commission jurisdiction over the persons of both the employer and his insurer and the appearance of the employer shall constitute the appearance of his insurer. However, the employee overlooks the proviso also contained in that same section of our statutes that “ * * * after appearance by an insurer, such insurer shall be entitled to notice of all proceedings hereunder.” § 287.450, supra, requires the commission to notify interested parties of the time and place of hearings. § 287.520, supra, provides that any notice required by the Workmen’s Compensation Law shall be deemed to be properly given and served when sent by registered mail. Continental, appearing specially for that purpose alone, had filed an answer' denying it was the insurer of the employers on the date of the accident. It is obvious that Continental was necessarily interested in the outcome of the claim. It follows that a notice of the hearing of April 5, 1962 was an indispensable requisite to the rendition of any award against Continental.' The record of the division which was introduced as an exhibit by both parties to this action shows on its face that no notice was given Continental of this hearing. The notice of the hearing issued by the division stated that the insurer was unknown. Moreover, the affidavit of Mr. Givens, director of the division, expressly stated that no notice was mailed to' Continental; The rule is that where notice is jurisdictional, and it is in the instant case, it must affirmatively appear of record, unless waived, or the proceedings are void. State ex rel. St. Louis Die Casting Corp. v. Morris, 358 Mo. 1170, 219 S.W.2d 359, l. c. 363. See also State ex rel. Baepler v. State Board of Health of Missouri, 330 Mo. 1200, 52 S.W.2d 743; Farmers Drainage District of Ray County v. Sinclair Refining Co., Mo., 255 S.W.2d 745; State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631.

■ The above evidence, appears from the face of the record. To the same effect is the evidence dehors the record which was admitted without objection: i. e., Mr. Givens’ affidavit. Quoting fr.om Freeman on Judgments, ,5th Ed., Vol. 1, Sec. 375a, p. 788, this court held, in Griggs v. Venerable Sister Mary Help of Christians, Mo.App,. 238 S.W.2d 8, 14, that if the parties admit or stipulate, or fail to object to the evidence of, facts showing lack of jurisdiction, it is then established that the judgment is void as effectively as though shown by the record, and whenever such fact is brought to the attention of the court, it is the duty of the court to so declare as a matter of law. It follows that the affidavit of Mr. Givens is properly for consideration and that such evidence also constitutes proof that Continental was never given the notice required by our statutes in order to confer jurisdiction upon the division.

The employee cannot contend that the division gained jurisdiction ,by virtue of Nichols’ action in filing a purported answer for Continental. The fact that Continentals name had been subscribed to the answer filed by Mr. Nichols without its knowledge or authority was admitted by failure of the appellant’s reply to deny respondent’s allegation on the subject. Moreover, the minute entry of July 27, 1961, shows Nichols’ lack of authority to represent Continental. While it was shown without dispute that the answer filed by Nichols was unauthorized so far as respondent is concerned, even if the facts were otherwise, the result would be the same, since the division failed to notify either respondent, Nichols or Keathley, of the hearing upon which the award was based in violation of § 287.300, supra.

Since the- awárd Is void, .it is unenforceable in this or any'other'proceeding. Dewey v. Union Electric Light & Power Co., Mo.App., 83 S.W.2d 203; see also La Presto v. La Presto, Mo., 285 S.W.2d 568, l. c. 570, where it is said that “ * * * a judgment which is void on the face of the record is entitled to no respect, and may be impeached at any time in any proceeding in which it is sought to be enforced or in which its validity is questioned by anyone with whose rights or interests it conflicts. * * * ” In the more recent case of Hughes v. Neely, Mo., 332 S.W.2d 1, actions were brought in a circuit court to cancel two unappealed judgments which had been rendered by that court thirty years before. The grounds advanced was that the judgments were invalid on the face of the record. The Supreme Court there said at 1. c. 11, “ * * * A judgment void on the face of the record ‘may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. * * * It has no legal or binding force or efficacy for any purpose or at any place. * * * It may be attacked by a person adversely affected by it, in any proceeding, direct or collateral and at any time. * * * [T]he situation is the same as it would be if there were no judgment.’ * * * ”

The employee contends that a valid award of compensation unappealed has the same force and effect as the judgment of the circuit court. This is true but by the same token such an award has no more force and effect than such a judgment would have. When, as is true in the instant case, it appears from the face of the record and other properly admissible evidence that the award was rendered without jurisdiction and is void, then it may be impeached at any time in any proceeding and the situation is as if the award never existed. Hughes v. Neely, supra.

The employee contends that Continental is precluded or estopped from attacking the award because it failed to file a timely application for review or to appeal. We cannot agree. That certainly would be the case if the award had been validly rendered; that is, made upon prior notice to Continental upon the hearing of April 5, 1962. But as held herein this award was rendered without jurisdiction and was void. If that is so, then no amount of procedure undertaken after the rendition of the award can render that award valid or enforceable. Farmers Drainage District v. Sinclair Refining Co., supra. We have herein held that the division violated the statutes under which it must operate by rendering an award against Continental without giving Continental any notice or opportunity to be heard. That being the case it would be manifestly unjust to hold that since Continental was later notified that it had been wronged and failed to appeal, it is now prevented from asserting the wrong done to it.

The employee then seeks to erect an estoppel against Continental on the theory that employee continued with prosecution of his claim after Nichols had filed an answer in which he had, without authority, filed on behalf of Continental on the belief that the employer was insured by Continental. The facts do not support any such theory. The appellant was fully advised from the beginning that Continental contended that its policy had expired prior to the employee’s injury. He proceeded after receiving copies of notices of hearings issued after the Nichols’ answer had been filed and which showed that the insurer was “unknown.” There is no evidence in this record from which it can be reasonably said that the employee would not have prosecuted his claim against his employer regardless of whether his employer was insured. In addition, the theory of estoppel is not supported by the law. The employee cannot by waiver or estoppel create a contract of insurance between Continental and the employer which policy covered the employee’s injury. Blew v. Conner, Mo., 328 S.W.2d 626 at 631.

The judgment of the circuit court should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.

RUDDY, P. J., not participating.


author: RUARK, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. BLOOMFIELD TRACTOR SALES, INC., et al. Exceptions of Andrew McClard and Evelyn McClard, Defendants-Respondents.
    No. 8303.
    Springfield Court of Appeals. Missouri.
    July 15, 1964.

      Raymond S. Roberts, Farmington, George Q. Dawes, Sikeston, for plaintiff-appellant
    C. A. Powell, Powell, Jones & Ringer, Dexter, for defendants-respondents.
   RUARK, Presiding Judge.

This is an appeal by the State Highway Commission (hereinafter called “Highway”) from a judgment based on a jury verdict assessing damages to defendants McClard (hereinafter called “Owners”) in the sum of six thousand dollars. Highway undertook to straighten and improve Supplementary Route SE (which will be referred to as Farm-to-market Route E) which ran south of Bloomfield in Stoddard County, . In so doing, Highway condemned Owners’ tract which lay on the south side of such Route E. The tract extended approximately two hundred feet east and west along the road. It was sixty-five feet deep (north and south) on the west end and tapered down to a ten-foot depth at the east end. -It-contained a total of 14/100 of an acre. This property was just outside the city limits of Bloomfield (population 1,330 by 1960 Census) and, by Owner Andrew McCla'rd’s testimony, “hardly a-fourth of a quarter” east of the intersection of said Route E' with north-south State Highway No. 25. By the testimony of the State Highway Engineer, it lay “approximately six hundred some odd feet” east of such intersection. On the west end of the tract was a building forty feet by forty feet. This building was made of tin, with a self-supporting roof — that is, it had no posts except along the walls. The building had a dirt floor. ■ Owner Andrew McClard testified that the' building was approximately fifteen years old. When built, old or used tin had been used (only) on the back and “a little bit” on the west end. He had purchased the building, then vacant, approximately five years before from a former employer at a price'of one thousand dollars. Since then he made' some minor repairs, including the installation of a “tin horn” (we don’t know what that is) and the graveling or regraveling of the driveways. He used the building for a repair shop, his principal business being the repair of farm machinery. He was of the opinion the property was worth sixty-five hundred dollars.

On re-examination by' his own counsel, Owner McClard was asked if he knew of any similar property “anything like being the same property,” in the community which had been sold in the last two years. He testified as to a property known as Leon’s Custard Stand situate on State Highway No. 25 a short distance south of the intersection with Route E and fronting about one hundred feet along said State Highway No. 25. This business building was a “block” building, twenty feet by twenty feet, with something like stucco inside. He said it sold for eighty-five hundred dollars. He had examined the deed.

Highway’s witness Chandler, an appraiser of Sikeston, placed the value of the property at twenty-three hundred dollars. He said there was no other property like it in the vicinity.

Highway then called Frank Stanley. He testified that he lived in adjoining New Madrid County and that he was in the farm loan and real estate business and did appraisal work. He had been engaged in that business for four years. He was acquainted with land and real estate in Stoddard County and had appraised property in Stoddard County and in and around Bloomfield during that period. He had followed the sales of property up and down Highway No. 25 in Stoddard County as to what the property sold for, and he was acquainted with sales of property of various kinds in and around Bloomfield for the last four or five years. He had appraised town and suburban property in or near various towns in the surrounding area, including some thirty commercial properties, but he had not appraised any business property inside Bloomfield. He was employed to appraise the property here involved. He went first to look at it and then made an investigation as to what other properties in the vicinity had sold for in the past five years, and he then upgraded or downgraded them in arriving at his appraisal of Owners’ property. He mentioned three tracts (apparently vacant lots) concerning which he had gone to the records to ascertain the sale price and then checked further to see if the records reflected the proper sale and took that into consideration at the time he made his appraisal. Owners objected to the witness’s opinion because he had had no experience appraising business property in the town of Bloomfield and also because the witness’s testimony showed that he based his judgment partly on what someone else told him.

“THE COURT: Mr. Witness, what did you base your judgment on in arriving at an opinion as to the value of the McClard property, on what did you base that on?
“THE WITNESS: Well, Your Honor, I used — first I established the value of the lot, based on vacant lot sales, and then, secondly, I determined the value of the building, and used the aggregate for what I thought the total property was worth. .
“THE COURT: Well, how did you arrive at the sale price that you used on the sales of vacant lots ?
“THE WITNESS: First I checked the instruments on record in the courthouse here, and then, secondly, I verified all three sales with the buyer.
“THE COURT: You did what?
“THE WITNESS: I verified the purchase price with the buyer.
“THE COURT: You mean by conversation?
“THE WITNESS: Yes, sir.
“THE COURT: What experience have you had in appraising town property, Mr. Stanley, over what period of time, and about how many appraisals and so forth ?
“THE WITNESS: Over the past four years I’ve appraised property in Kennett, Scott City appraised several commercial properties in East Prairie. Probably thirty altogether, some of them were suburban, in the edge of these small towns like Bloomfield. It’s hard to classify whether it was town property or suburban property sometimes.
“THE COURT: The objection is sustained.”

Highway offered to prove that in the opinion of the witness the value of the property was twenty-six hundred dollars. Objection was made “for the same reasons stated.”

“THE COURT: He says he based it in part on a conversation he had with other people, which is not in evidence.”

The objection was sustained.

After verdict, motion for new trial was filed charging in addition to excessiveness of the verdict, error in excluding the testimony of witness Stanley as to value. A further ground was that the testimony of Owner McClard as to the sale of Leon’s Custard Stand tract on Highway No. 25 for eighty-five hundred dollars was false and misleading because such sale included the purchase of various personal property and equipment (incident to a soft ice cream business); that the verdict had been reached by a comparison with this sale; that plaintiff had newly discovered (since trial) evidence that the purchaser and seller of the tract so compared would testify that the purchase price of eighty-five hundred dollars included the personal property; that the Owner’s testimony had come as a surprise at the trial; and that Highway had •not been guilty of lack of diligence. The motion was accompanied by affidavit of Highway’s attorney that Seiling and Jones (seller and purchaser) refused to make affidavits but stated that, if called as witnesses, they would testify that the eighty-five hundred dollars sale price included valuable fixtures, machinery, and equipment; that Highway had no knowledge or way of discovering such evidence prior to trial and had no reason at the time of trial to doubt Owner’s testimony. Thereupon a hearing was held, and testimony was taken -on the motion.

Buyer Jones testified that the sale of Leon’s Custard Stand and the sale price of eighty-five hundred dollars included an ice-cream-making machine and three soda machines and a milk cooler. He estimated the personal property at two thousand dollars. No one from the Highway Department talked to him about the sale previous to the trial. He was at home the day of trial, and no one called him; but someone came to see him that night. The attorneys for the Highway testified that they knew nothing about the custard stand sale until after the trial, when they were informed that there was a probability that the sale included personal property. The evidence shows that the deed involved in the Leon’s Custard Stand sale reflected a consideration of eighty-five hundred dollars. It did not reflect the inclusion of personal property in the sale.

In the trial of the case here involved, the ;voir dire commenced shortly after nine a. m. Four witnesses were examined and some eight exhibits were marked and received in evidence. The record does not reflect the arguments, if any, but it appears that the jury received the case shortly after eleven o’clock and returned a verdict about noon or shortly thereafter.

As to the competency of witness Stanley: There is no exact rule by which the qualification of a witness to testify as to the valúe óf land can be measured. Love v. United States, 8th Cir., 141 F.2d 981, 984. As a general rule, the market value of real estate is established by voluntary sales of other similar property made in the same general vicinity and not too remote in time. Jackson County v. Meyer, Mo., 356 S.W.2d 892, and cases at 894; Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27; City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853; 85 A.L.R.2d 110, 119. Consequently the witness (other than the owner) must, in ordinary circumstances, have some knowledge or information as to sales of similar or comparable property. Generally stated, the knowledge of the witness must be such as is demanded by the nature of the subject matter and such as can reasonably be expected in the circumstances. The means of knowledge, and therefore the requirements in respect to qualification, may be higher in an area where there are frequent sales of similar property and lower where such sales are infrequent or nonexistent. 32 C.J.S.Evidence § 545, p. 301; Orgel, Valuation under Eminent Domain, § 138, p. 589. This has sometimes been referred to as a “sliding scale” standard. See 159 A.L.R., Anno. 14 — 16. And the tendency is to admit any evidence which sheds light on the question, leaving it to the discretion of the trial court to keep it within bounds. Artificial rules of evidence which exclude from the jury matters which men consider in their everyday affairs hinder, rather than help, the arrival at a just result. United States v. 25,406 Acres of Land, 4th Cir., 172 F.2d 990.

One need not be an “expert,” in the sense that word is ordinarily used, to testify as to the value of land. If the witness knows or has inspected the property, and if he has such information, knowledge, and skill which enable him to form an intelligent judgment, and if this knowledge and information is superior to that possessed by the ordinary person who composes the jury, then he should be permitted to testify. Beyond that any deficiency he may have goes to the weight of his testimony, not to the qualification. 32 C.J.S.Evidence supra, § 545, p. 301 et seq.; Lewis, Eminent Domain, 3d Ed., Vol. II, § 656; State ex rel. Burcham v. Drainage Dist. No. 25, Mo. App., 272 S.W.2d 712; Wipfler v. Basler, Mo., 250 S.W.2d 982(14); State ex rel. State Highway Commission v. Devenyns, Mo.App., 179 S.W.2d 740; see Alexander v. Llewellyn, Mo.App., 70 S.W.2d 115. As was said by Bennick in City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, l. c. 157:

“ * * * the considerations which govern the admissibility of opinion evidence are, for practical purposes, identical with those that actuate ordinarily prudent persons in looking for advice in connection with the conduct of their own personal business affairs. It follows, therefore, that if a witness, whatever his occupation or profession, is one whose opinion would be sought after and given weight by ordinarily prudent persons seeking information upon the question of the value of or damage done to the property which is the subject of the inquiry, he is competent to give his opinion in evidence in the case so far as the matter of his qualification is concerned.” .

One may add to, and sometimes acquire, the superior knowledge which qualifies him to testify as to value by making a study and inquiry as to such sales. Boyce v. Gingrich, 154 Mo.App. 198, 134 S.W. 79; Brayton v. Gunby, Mo.App., 267 S.W. 450; Ruddy v. Gunby, Mo.App., 180 S.W. 1043; see Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319, 329. As a matter of fact; it has been said that an expert should make careful inquiry into the facts concerning similar sales upon which he bases his opinion as to land values. State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689, 695. He may take into consideration the consideration stated in a deed as a source of information. Ramming Real Estate Co. v. United States, 8th Cir., 122 F.2d 892, 895. And his competency as an expert may not be attacked on the ground that he has considered hearsay or sales that would 'Otherwise be inadmissible. 159 A.L.R., Anno. pp. 43-44; City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 849; United States v. 5139.5 Acres of Land, 4th Cir., 200 F.2d 659; see State ex rel. State Highway Commission of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, 149.

“An expert quite frequently bases his opinion of value to some degree on what he learned through inquiry and investigation. To be sure, such inquiry •and investigation constitute purely hearsay and are inadmissible; but as Mr. Justice HOLMES said: ‘An expert may testify to value although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience.’ ” Jahr, Eminent Domain, Valuation and Procedure § 134, p. 207.

The qualification of an expert or ■one standing in the role of an expert is a preliminary question and is largely a question for the trial court whose, discretion will not ordinarily be overruled unless abused or exercised in clear-,error of law. State ex rel. State Highway Commission v. Devenyns, supra, Mo.App., 179 S.W.2d 740; Christian v. Jeter, Mo., 287 S.W.2d 768; Minor v. Lillard, Mo., 306 S.W.2d 541; Union Elec. Co. of Mo. v. Simpson, Mo.App., 371 S.W.2d 673, 677. But we question whether an exclusion based on an erroneous application of the hearsay rule is really an -exercise of discretion.

Without further extended review of the evidence in this case, we believe that the witness Stanley was not incompetent to testify as to the value. We reach this conclusion from the facts that: he was experienced in the real estate business as an appraiser; he was familiar with values and had made appraisals over the general area, including appraisals of business property in small towns and their outskirts in the general area; he had followed the sales of property up and down Highway No. 25; there was no (tin building) property similar to this in the immediate vicinity; he had made a search of the records for sales of similar business acreage in the immediate vicinity and verified such by making contact with the parties thereto; he had inspected the property and had an opinion as to its market value.

But whether the refusal of the evidence was error is a more difficult question. The appellate courts have been reluctant to reverse discretionary decisions. Our quandary is: Was the evidence refused because the court felt the witness’s basis of knowledge was acquired through “hearsay” and therefore he was disqualified from expressing such opinion ? If so, and if the witness was otherwise qualified, this was error. The remarks of the court would indicate that this “hearsay” conclusion at least played a part in the decision to exclude, and if that be true the exclusion was not a full exercise of discretion but a ruling based upon a mistake of law.

As to newly discovered evidence: Generally, motions for new trial on the ground of newly discovered evidence are not favorites of the law. Public policy requires that litigation come to an end. Curry v. Thompson, Mo., 247 S.W.2d 792, 31 A.L.R.2d 1225. The general principles governing such motions are: The evidence must have come to the knowledge of the movant since the trial. The movant was not guilty of lack of diligence in discovering it sooner. The evidence is material and would probably produce a different result on a new trial. Such evidence must not be merely cumulative, and the object must not be simply to impeach the character or credit of a witness. Womack v. McCullough, Mo., 358 S.W.2d 66, and cases compiled at 68; Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616(15).

Another general rule is that the trial court is given a broad discretion in ruling motions on such grounds, and it is usually said that it is only where the discretion has been abused that the appellate courts will interfere. Davis v. Illinois Terminal R. Co., Mo., 326 S.W.2d 78; Van Meter v. Beckers, Mo.App., 42 S.W.2d 951; Ward v. Goodwin, Mo., 345 S.W.2d 215, 219. But this discretion is not absolute. The doctrine of due deference is not to be employed to anesthetize against all prejudicial error (Faught v. Washam, Mo., 329 S.W.2d 588), and the appellate courts will intervene when the ends of justice require. Thus: Womack v. McCullough, supra (where the granting of the - motion was reversed) ; Hayes v. Adams, 241 Mo.App. 560, 244 S.W.2d 123, and Foerstel v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 792 (where the refusal to. grant was reversed).

That knowledge concerning the fact that the sale price of Leon’s Custard Stand included a quantity of personal property came to Highway after the trial seems not to be in question. As to .diligence: The “diligence” required of a movant means industry and careful attention called for by the circumstances. It, does not mean impeccable, flawless invesfiga.tion in all situations. Foerstel v. St. Louis Public Service Co., supra; Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107, 112. We think that the failure to examine the' sale of a twenty-foot by'twenty-foot block and stucco building property on State Highway No. 25 can hardly, be.said to have been a lack of diligence. The buildings had little similarity in size or construction; and, had the record of this sale been examined beforehand, it would'have shown nothing to indicate that the purchase price included other property. In the preparation for trial involving land values, due diligence,would not ordinarily require that the parties make an investigation of every sale o'f every character of property.

The trial, up to submission, to the jury, ‘lasted not over two and one-half hours. This, period covered the voir, dir.e and. examination of witnesses, introduction of exhibits and, presumably, statements and argument of counsel. We think that there was no lack of diligence in failing to assume that Owner (who said he had seen the deed)' testified falsely or mistakenly, or in failing to make an independent investigation during this two and one-half, hour period. Counsel were then occupied with the things at hand. Cited by respondent is Sang v. St. Louis, 262 Mo. 454, 171 S.W. 347. In that case, on the first day of the trial, the plaintiff mentioned two witnesses and gave testimony as to how they might be located through another man. The trial was recessed or “laid over” until the next day and again on the following evening. Thus there were two nights and three, days involved. It further appeared that this testimony dealt with whether a street lamp was lighted and, since the issue was over a hole in the street which was flooded by water ■ and the presence of a light probably would not have disclosed the hole, the evidence probably would not have changed the result. In Young v. St. Louis Public Service Co., supra, the moving party actually had the papers in hand and had subpoenaed' the claim file which contained the information involved but simply failed to look at rt until after the trial. We think these cases are not comparable on the question of diligence and opportunity for knowledge. On "the other hand, in Hayes v. Adams, supra, the movant actually had ’the documentary evidence in his possession but didn’t know it would be material, hadn’t hunted it out, and didn’t bring it to trial. 'In Van Meter v. Beckers, supra, the parties actually had the documentary evidence on thé issue being tried'but did not know or had forgotten that they had it until they himted it up after the trial. In the Hayes case,''it' was.held error not. to', sustain the motion. In the Van Meter case, the sustaining of the motion' for new trial was approved. It is our 'opinion that under the circumstances here Highway should not be. charged with lack of diligence. .

As to whether the evidence was material, cumulative, or impeachment of a witness: Two classes of evidence had been submitted to the jury. First, opinion evidence — an opinion by one appraiser and an opinion by Owner. Second, comparative value — testimony concerning the so-called “similar sale” for eighty-five hundred dollars as a basis of comparison. The evidence of this sale price, being the only business building sale tendered to the jury, was of some weight. If the evidence concerning it was false or mistaken, and if the price of eighty-five hundred dollars was not actually for the real estate, then it was a matter which Highway had a right to show as a direct refutation of a material fact. That such refutation might have also had a tendency to impeach the credit of the owner witness is beside the point.

As to whether the production of this evidence would have produced a different result: Older and wiser lawyers have frequently declared that “you never can tell what a jury will do.” We cannot pose as prophets, but it would appear that there is a probability or likelihood that the result would have been different had the jury known that the “similar building” property sale price included other property.

In considering this case, we have constantly borne in mind that we have two rulings. The first one (denial of Highway’s witness Stanley) may, or may not, have been an exercise of discretion. The second (on new trial for newly discovered evidence) quite obviously, was an exercise of discretion. We need not decide whether either ruling, taken singly and alone, would amount to such prejudice as to require reversal, for the combined result of the two rulings is that the jury never had the opportunity to hear an opinion witness on the (equally) disputed question of value and were therefore limited to only two witnesses on that score — one of them being .Owner Andrew McClard, and the other a witness for Highway. And the jury also were imposed- upon in the sense that they were given a false idea of the actual sale of a business property in the vicinity (it being the only comparative building sale m evidence) and were denied the opportunity to learn the true sale price from which they might make a fair comparison in fixing their value. When we consider these things together and in the cumulative, we cannot escape the conclusion that appellant did not have a fair opportunity to present the facts to the jury. We must, therefore, reverse and remand. It is- so ordered.

STONE and HOGAN, JJ., concur.

      . Contrary as to sales of dissimilar property. School Dist. of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 249 S.W. 51; St. Louis Electric Terminal R. Co. v. MacAdaras, 257 Mo. 448, 166 S.W. 307.

      . See Pridgen v. Gibson, 194 N.C. 289, 139 S.E. 443, 54 A.L.R. 855; United States v. 5139.5 Acres of Land, supra, 4th Cir., 200 F.2d 659.


author: DOUGLAS W.' GREENE, Special Judge. -

text:
    Mary June FUEMMELER, (Plaintiff) Respondent, v. Vincent FUEMMELER, (Defendant) Appellant.
    No. 31702.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.

      Edwards, Wright & Seigfreid, Jerome W. Seigfreid, Mexico, for appellant.
    Charles M. Shaw and L. L. Bornschein, Clayton, for respondent.
   DOUGLAS W.' GREENE, Special Judge. -

Plaintiff instituted this action for divorce on December 15, 1962, by the filing of her petition alleging indignities by her husband, claiming that he failed to associate with her, that he was'jealous, domineering, and critical, and that he no longer loved her or wanted to live with "her; that he had told her she was suffering from an unbalanced mental condition and that such, statement was false. The petition further stated that seven children were born of the marriage, six of whom were still ia the parental home.

Plaintiff asked for a divorce, care, and custody of the minor children, and support,, maintenance, and attorney fees.

Defendant’s answer, filed on January 5,. 1963, admitted the marriage, birth of the-children, and jurisdictional requirements,, but denied the balance of plaintiff’s petition. Defendant, on the same date, also' filed a cross-bill, alleging as indignities that plaintiff had no friends and refused to-speak to people, which conduct embarrassed defendant; that plaintiff refused to talk or communicate with defendant for no-reason; that she failed and refused to make-a home for defendant and their children-,, and was completely incapable of raising, and caring for the children.

Defendant asked for a divorce and care and custody of the minor unmarried children. Plaintiff’s reply, filed on January 16, 1963, admitted the separation of the parties, but denied all alleged indignities.

A contested trial of the issues was held' on July 2, 1963, and the cause was taken under advisement. On July 19, 1963, the Court entered an order finding the issues-against plaintiff on her petition and against defendant on his cross-bill and dismissed both petition and cross-bill with prejudice.

In support of his ruling the trial court filed a “Findings of Fact, Conclusions of Law, and Decree,” in which the trial court found that the defendant was the injured and innocent party, and that plaintiff’s conduct towards defendant during the marriage had rendered his situation in life intolerable, and was such as would entitle him to a divorce on this cross-bill, were it not for the fact that the evidence revealed, in the trial court’s opinion, that plaintiff was mentally ill, and that her conduct towards defendant was a result of such mental illness, and therefore excusable since it was not wilfully or intentionally done in a spirit of hatred or contempt. The trial court also found that because of mental illness, respondent was unable, over a sustained period of time, to avoid her conduct in question toward defendant. Defendant, on July 27, 1963, filed his motion for new trial, which was overruled by the trial court on August 2, 1963. From this ruling defendant has appealed.

In his brief and argument, appellant has presented only two 'assignments of error. All other assignments of error, being neither briefed nor argued, were therefore abandoned. Ayres v. Keith, Mo., 355 S.W.2d 914; Moore v. Rone, Mo.App., 355 S.W.2d 398.

‘ We first consider appellant’s argument that the burden was on the respondent to plead and prove, as a defense to appellant’s cross-bill for divorce, that she could not comprehend the difference between right and wrong at the time she had committed the indignities as found by the trial court. (T. 193-195). While it is true that the burden of proving insanity of one of the parties to a divorce action is on the party asserting it (Dunn v. Dunn, 240 Mo.App. 87, 216 S.W.2d 141, l. c. 143(6); Willis v. Willis, Mo.App., 274 S.W.2d 621, l. c. 626), here, neither party pleaded that the respondent was insane. However, in divorce cases, the public welfare is at stake, and the state has an interest in the maintenance of the family relationship. (Crow v. Crow-Humphrey, 335 Mo. 636, 73 S.W.2d 807, l. c. 811; Koslow v. Taylor, 356 Mo. 755, 203 S.W.2d 433, l. c. 437; Heaven v. Heaven, Mo.App., 363 S.W.2d 33, l. c. 39). It has been therefore held that, in a divorce action, insanity need not be pleaded affirmatively (Bethel v. Bethel, 181 Mo.App. 601, 164 S.W. 682, 684(3); Willis v. Willis, 274 S.W.2d 621, l. c. 626). If evidence of insanity was received into evidence for any purpose, it should have been considered by the trial court for all purposes, provided that proper legal steps had not been taken to restrict its use (28 Am.Jur. 254-255, Sec. 263-264). Here the trial court had not only a right, but also a duty, to minutely examine all evidence concerning the mental condition of respondent, and if the evidence, considered in its entirety, established that respondent was “insane” at the time she committed the indignities in question, then it made no difference who had the burden of proof on this issue. (Bethel v. Bethel, 181 Mo.App. 601, l. c. 609, 164 S.W. 682; Miller v. Miller, 14 Mo.App. 418, l. c. 428). We therefore rule this point against the appellant.

The only remaining assignment of error is that the trial court erred in dismissing appellant’s cross-bill on the theory that respondent was not mentally able to avoid the conduct which constituted indignities against the appellant. This is a more difficult question to decide. Appellant contends that in order for respondent’s indignities toward appellant to be legally excused, it must be shown, that at the time of the commission of said indignities, her mental Condition must have been such that she was unable to differentiate between right and wrong.

This legal test has previously been applied by this court (Niedergerke v. Niedergerke, Mo.App., 271 S.W.2d 204, l. c. 207 (3). It has also been accepted as a correct test in other appellate decisions of this state (Willis v. Willis, 274 S.W.2d 621, l. c. 627(10), which case also held that if the “insanity” in question caused a person to act by force of an irresistible impulse generated by a diseased mind, then such acts were legally excused. These two legal tests, or rules, have long been universally applied to this problem. 19 A.L.R.2d 144, 151-155; Nelson on Divorce and Annulment (2nd Ed.) Vol. B Sec. 9.06.

But there is still another test, or rule, that was first applied by this court many years ago. In the landmark case of Bethel v. Bethel, 181 Mo.App. 601, 164 S.W. 682, St.L.C.A. 1914, the trial court found that the husband had publicly and repeatedly" charged his wife with adultery; that such charges were untrue, and that the wife was an honest, well-meaning woman. The trial court also found that the husband was in poor health, was a nervous wreck, and was not accountable for his words and actions against his wife. The appellate court ruled that this finding amounted to a finding of insanity, reasoning that divorces are granted because of the fault of a party and not for his or her misfortune. (Bethel v. Bethel, supra, l. c. 610, 164 S.W. 682).

This reasoning has much merit. Progressive thinkers in the judicial, medical, and sociological branches of our society have inched forward step by step, over the years, down the narrow and, poorly defined road of mental illness, with its many shades of meaning and degree, and by their wisdom, perseverance, and. tenacity, have changed legal thinking from the dark ages’ concept, when a-jp'erson afflicted with a mental illness-was placed in the same category as á wild: beast or was burned at the stake as" a witch, to our present, modern day concept .that mental disease is an illness which impairs mental health and which may or may not, depending on its severity, render an individual incapable of conforming his 'conduct to the modes of society.

■ Our legislature, in the recent enactment into law of Senate Bill 143,, which bill is our new. Criminal Responsibility .Act (Chapter 552, 'Revised Statutes of Mo.), stated in Section ' 552.030(1)-, V.A.M.S. thereof, that “[a] person is not responsible for criminal conduct if at the time of such' conduct as a'result of mental disease or defect he did not know or appreciate the nature,'quality,.or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.” (Emphasis ours.) Surely a partner to the marriage vows, “in sickness and - in health, for better and for worse,”- is entitled to at least the same protection of the law as a -person accused of crime. The vows of marriage would indeed be tied by a frail thread if the inconvenience caused by the illness of one marriage partner gave a right of divorce to the other. (Thomason v. Thomason, Mo.App., 262 S.W.2d 349, l. c. 352(5)).

We, therefore, hold that if the greater weight of the credible evidence in this case established that respondent at the time of committing the indignities in question was suffering from a mental illness that rendered her incapable of avoiding the commission of those indignities which otherwise would have been grounds for divorce, then she was not legally accountable for such acts, and such indignities are not grounds for divorce. With this ruling in mind, we proceed to examine the evidence.

■ Appellant's allegations of indignities in his cross-bill are to the effect that respondent- was completely introverted; that she would not communicate with appellant; that she failed and refused to make a home for appellant and their family; would not sit in the same room with him or eat her meals with the . family; that she had no friends and .refused to make friends or even speak to people of the community, and that she was fully and completely incapable of taking care of the family. Appellant’s own testimony indicates that he took his wife to a psychiatrist about ten years before the divorce action was commenced; that she had been almost constantly under the care and treatment of a psychiatrist during that period; that, in appellant’s opinion, her condition had never become better and, if anything, it was worse, and that every psychiatrist he had ever taken her to. informed him that, in the doctor’s opinion, respondent would not improve. . .

Respondent admitted that she did not speak to her husband the last, year they lived together; that she is under the care of Dr. Chiasson -in Columbia, Missouri, and that she sees the doctor, who is a psychiatrist, once a month; that she had been under Dr. Chiasson’s treatment for over two years; that prior to that time she had been treated by at least three other psychiatrists for a period of years; that she had been treated in Missouri Baptist Hospital for a nervous condition about ten years ago, and also treated in the Boone County Hospital for the same purpose; that although she had lived in Mexico, Missouri, for seventeen years, there was no one there whom she considered a friend. She testified that she and her psychiatrists had discussed her lack of cordiality with other people from time to time, and that her emotional problems and her lack of cordial relationships with others could be related. Dr. Haddock, a witness for appellant, who was a psychiatrist and had treated respondent from 1958 until 1960, testified that she had a paranoid condition, which was a feeling that people disliked her; that the condition was chronic and acute and not likely to improve, and had been more or less steady for many years.

Dr. Langford, a physician, testified that respondent did not communicate with other people in church or in the town of Mexico, and had not done so for a number of years; that she was withdrawn, and that it was difficult to communicate with her on a doctor-patient basis.

Reverend Father O’Sullivan, the parish priest, stated that he tried to visit with respondent, but that she would not speak to him and told him her problem was lack of communication and that she went around in circles. Other witnesses, including appellant, testified that respondent had more and more disassociated herself from family activities; that she stayed in seclusion; gave little concern to the needs of her husband and children, and showed a lack of concern and affection for her husband and children by her passive, withdrawn, and introverted attitude.

On the basis of this evidence the trial court denied a divorce to both respondent on her petition, and defendant on his cross-bill, reasoning that her acts were not intentionally done, and that as a matter of law, respondent was not responsible for her conduct, as she was mentally ill at the time such acts were committed.

A careful reading of the record indicates that there were ample facts on which the trial court could, and did, find that the indignities complained of by appellant occurred at a time when respondent was suffering from a mental illness that made her legally unaccountable for such actions. For the foregoing reasons, the judgment of the trial court should be affirmed.

It is so ordered.

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

WOLFE, J., not participating.