text:
    Ivan HEWITT et al., Plaintiffs-Appellants, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    No. 52511.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Rehearing Denied April 8, 1968.

      Harold Miller, Maysville, Beavers, Thomson & Beavers, Maryville, for appellants (plaintiffs).
    Robert L. Ross, Albany, Clyde J. Linde, Charles White Hess, of Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant (defendant).
   LAURANCE M. HYDE, Special Commissioner.

Action by landowners for damages from flooding, totaling $50,639.90, claimed to have been caused by defendant’s railroad bridge, alleged to have been constructed without suitable openings in violation of Sec. 389-660, RSMo, V.A.M.S. Plaintiff had verdict and judgment for amounts totaling $8,965.00. The court sustained motions for new trial of all parties so jurisdiction of appeals from these orders is in this court because the amount involved is the amount originally sought by plaintiffs.

Plaintiffs’ motion was for a new trial on the issue of damages only, claiming the damages awarded were grossly inadequate and against the weight of the evidence. Defendant’s motion was for judgment in accordance with its motion for directed verdict or in the alternative for a new trial, alleging among other errors what it calls four major errors, namely: instructions permitting lump sum verdicts for five years’ flooding (1960-1964), permitting expert opinions not based on facts, failure to rule that defendant’s bridge was not the proximate cause of plaintiffs’ damage, and failure to instruct that defendant was under no duty to anticipate in 1964 a flood of such magnitude.

The court on September 20, 1966, made the following order: “Arguments heard on motion for new trial by plaintiffs and defendant; same are considered; plaintiffs’ Motion for New Trial sustained; defendant’s motion for New Trial sustained.” On September 23, 1966, defendant filed notice of appeal from this order and plaintiffs filed a notice of appeal on September 26, 1966.

Thereafter, on September 28, the court entered a new order as follows: “Now on this date the Court on its own motion sets aside the order heretofore entered on September 20, 1966, and in lieu of finds Defendant’s for new trial sustained because of error in giving instructions No. 3 and 12 inclusive and because the verdict is against the weight of the evidence; plaintiffs’ motion for new trial on issue of damages only overruled; all parties notified.” Plaintiffs filed a notice of appeal from this order on November 17, 1966, as authorized by a special order for appeal made by this court.

There is nothing in the record to show any notice was given to plaintiffs before the order of September 28th was made and plaintiffs claim none was given. We can only construe the reference to notification in this order as meaning the parties were notified it had been made. Therefore, on authority of Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 23 A.L.R.2d 846, we must hold this order invalid and determine the meaning and effect of the order of September 20, 1966. See also Quinn v. St. Louis Public Service Co., Mo.Sup., 318 S.W.2d 316. Because the order of September 28th is invalid it is not necessary to decide whether the court could have had authority to enter it after notices of appeal were filed.

Certainly the order of September 20th is an inconsistent order, granting defendant a general new trial which is what its motion sought and granting plaintiffs a new trial on the issue of damages only which was the sole ground raised and relief sought by plaintiffs. Thus in the relief granted the parties there was a direct conflict. Our view is that the broader general relief granted must prevail over the limited, if we find merit in any of defendant’s claims of error. We will therefore consider first the above four alleged major errors briefed by defendant.

Defendant’s first contention is the lump sum verdict including damages for several years of flooding, as authorized by the instructions, was prejudicial error. Defendant cites Cottier v. Chicago, B. & Q. R. Co., Mo.App., 33 S.W.2d 173; Jones v. Chicago, B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5; Brown v. Quincy, O. & K. C. R. Co., 198 Mo.App. 71, 199 S.W. 707, in which damages for each of several years of flooding were required to be separately determined. Defendant also cites Flowers v. Smith, 214 Mo. 98, 112 S.W. 499 (separate libels); Conran v. Fenn, 159 Mo.App. 664, 140 S.W. 82 (separate slanders) and Smith v. Chicago, R. I. & P. Ry. Co., 183 Mo.App. 180, 170 S.W. 324 (damages on separate causes of action) which were reversed because lump sum verdicts were authorized. In the Flowers case a motion to elect was overruled; in the Conran case there were other grounds for reversal and this was also true in the Smith case. The trouble with defendant’s contention here is that it made no motion to require the separate claims of plaintiffs to be stated in separate counts in the petition, with separate counts for each year in which damages were claimed by each; nor did defendant make any objection to evidence being received for each of the separate years claimed from each plaintiff under the general petition of all of them; nor did defendant make any request for separate submission of damages of any of the plaintiffs for each flood involved or made any objection to the way these were being submitted. Moreover, the record does not show that defendant made any request for instructions.

It is true that, where an obstruction of a watercourse causes annual or occasional flooding of lands, each repetition of overflow gives rise to a new cause of action, 56 Am.Jur. 859, Waters, Sec. 443; 93 C.J.S. Waters § 36(1) b, p. 656; Annotation 5 A.L.R.2d 320, 323; 2 Farnham on Waters 1847, Sec. 581. (We note from the record in our files in Smithpeter v. Wabash Ry. Co., 360 Mo. 835, 231 S.W.2d 135, 199 A.L.R. 2d 950, cited by both parties, the petition was in separate counts for each landowner plaintiff for each year’s flood damage and was submitted to require separate verdicts on each.) “(W)here there are several issues in the case, in the absence of an objection that the verdict has not passed on the issues separately a general verdict * * * in no event is open to question when objection is not taken at the proper stage of the proceedings.” 53 Am.Jur. 722, Trial, Sec. 1043; see also 89 C.J.S. Trial § 502, p. 172. Furthermore, Rule 55.37, V.A.M.R. provides: “A party waives all objections and all other matters then available to him by motion by failure to assert the same by motion within the time limited by Rule 55.36 except (1) Failure to state a claim upon which relief may be granted, (2) Failure to state a legal defense to a claim, and (3) lack of jurisdiction over the subject matter.” Rule 55.31 specifically includes in objections to be raised by motion “whether or not the same may appear from the pleadings and other papers filed in the cause. * * * (9) That several claims have been improperly united.” In Helm v. Riss & Co., Inc., Mo.App., 194 S.W.2d 713, 714, it was ruled (applying what is now Rule 55.36, then Sec. 66, Laws 1943) “The effect of this assignment is that there were two incompatible causes of action joined in one count. * * There was no attack made on the petition by demurrer, motion or answer, and if there is a misjoinder of causes in one count, it is waived.” See also- many cases under Sec. 406(8), Pleading, West’s Missouri Digest. Therefore, we hold defendant’s failure to make objection by appropriate motion to pleading and submitting damages of some plaintiffs (four plaintiffs claimed damages only for the 1964 flood) for several years of flooding in single counts and instructions were waived by defendant. The claim of defendant that as to the floods of 1960-1963 there was no evidence to establish defendant’s liability will be considered with its assignment that plaintiffs’ evidence was not sufficient to show defendant’s bridge was the proximate cause of their damage.

The 102 River, having its source in Iowa, runs to the south through Nodaway County and into Andrew County. After the river enters Andrew County it runs in a southerly direction along the west side of the town of Rosendale, then bends to the east and runs south of the town where it is crossed by the defendant railroad. Defendant’s bridge is about a half mile south of the center of the town but it is nine-tenths of a mile, along the channel of the stream, from the bridge on State Highway 48 west of the town to defendant’s bridge. Plaintiffs are landowners, some owning town property but most with farm land north of defendant’s bridge, much of it between defendant’s bridge and Highway 48 east of the town but some north of the Highway. The U. S. Geological survey map and other maps in evidence show very little difference in elevation of the land between defendant’s bridge and Highway 48 and for some distance north of the Highway. There was a drop of two feet between the two bridges. Much of plaintiffs’ land was leveed and overflowed when the levees were breeched by the flood waters. Defendant’s bridge had solid steel girders ten feet high, with its track at their upper level. The water was five and one-half feet up on this girder on June 21, 1964. There was also testimony that in 1964 there was a great amount of logs and other debris up against defendant’s bridge and there were photographs in evidence to show this. The railroad was on an embankment built across the river valley from each side of its bridge. The 1964 flood was the greatest of any of the floods of 1960-1964. In all of these floods the river also was out of its banks below defendant’s bridge.

We first consider defendant’s claim of error of failing to instruct the jury that the 1964 flood was unprecedented and that defendant was under no duty to anticipate it. However, defendant does not claim to have offered such an instruction and we find no ground stated in its motion for new trial on refusal to so instruct although defendant in its motion did ask for judgment in accordance with its motions for directed verdict on that ground. They do not raise that issue on this appeal, seeking only a new trial on the merits. We fully discussed the act of God issue in Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, saying: “When the result in part is ascribable to the participation of man, either through active intervention or neglect or failure to act, ‘the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God’ * * *. Usually, however, whether a flood ‘is such as should have been anticipated and provided against is a question for the jury. ’ We note there was evidence of as great a flood in 1915. For reasons hereinafter stated we consider the plaintiffs had substantial evidence on the issue of defendant’s negligence.

Defendant contends that plaintiffs did not establish by their evidence that defendant’s bridge was the proximate cause of their damage at least as to floods in years other than 1964. Plaintiffs’ expert testimony concerned only the 1964 flood. Defendant also says plaintiffs’ expert’s opinions as to the 1964 flood were not based on sufficient facts personally observed, properly hypothesized or known to the jury and so were not sufficient to support any verdict.

As to the latter, plaintiffs used the deposition of their expert Fred A. Johnson taken by defendant who based his opinions on the study and records of defendant’s expert E. J. Myers stated in Myers’ deposition. (Myers testified at the trial.) Defendant says Johnson’s testimony was not sufficient to support the verdict because it was not based on sufficient facts or personal study to warrant his conclusions. Defendant further says the facts used by Johnson from Myers’ deposition were not hypothesized and that it cannot be determined what facts he used as a basis for his conclusions. Johnson had designed bridges for the State Highway Department including the one west of the town. He examined the area in December 1965, and testified in considerable detail about this and about his computations of the bridge opening, the drainage area of the river, measurements he used that were made by others including elevations, profiles and high water marks. His opinion was read without objection stating there was back water effect retarding the flow between the two bridges and that this back water effect from defendant’s bridge went beyond the Highway bridge. (Objection was made to stating the cause of flooding certain land and there were motions to strike but no point is made specifically on this appeal as to overruling these objections and motions; and the record does not show what part of the testimony offered from the deposition was examination by defendant’s counsel or what part was examination by plaintiffs’ counsel.) Johnson stated his opinion that defendant’s bridge had the effect of slowing the flood water and “causes some overflow to go around Rosendale that wouldn’t if they had a sufficient bridge with sufficient clearance.” This would cause flooding of land owned by some of the plaintiffs on both sides of Highway 48 east of the town. Our view is that facts do appear in Johnson’s deposition which would be and apparently were the basis for his opinions as to the effect of the bridge. In any event, there was substantial evidence by lay witnesses to show the insufficiency of the opening under its bridge to afford sufficient outlet in 1964 and that was the basis of plaintiffs’ claims. Their evidence was that the water flowed against and piled up against the girder of the bridge and was higher on the upstream side of the bridge than on the downstream side and resulted in a slower current upstream; that there was current downstream from defendant’s bridge when there was none between it and the Highway bridge; and that the water did not go out and go east of the town until it flowed against and was backed up by defendant’s bridge. They also testified that the opening under the bridge and the river bed north of it for as much as a mile north of it had filled in over the years due to the bridge holding the water back; that drift and logs piled against defendant’s bridge had reduced the size of the opening under the bridge; and that the water receded sooner south of the bridge than north of it so that similar land south of the bridge could be replanted while the land north of it remained too wet. We held in Smithpeter v. Wabash R. Co., 360 Mo. 835, 231 S.W.2d 135, 1. c. 144, that such testimony “was substantial evidence to make a jury case.” See Snow v. Thompson, Mo.App., 178 S.W.2d 796, 798. See also Kennedy v. Union Electric, 358 Mo. 504, 216 S.W.2d 756, 761, concerning lay opinions based on observation and experience. Defendant’s expert gave his opinion that its bridge had no appreciable effect on the flood level on plaintiffs’ lands but we hold this issue was for the jury.

As to defendant’s contention, that its bridge was not shown to be the proximate cause of their damage by floods other than 1964, our view is that it must be sustained. Plaintiffs’ expert said he had no opinion as to whether defendant’s bridge caused floods in years prior to 1964. Plaintiffs’ evidence was mainly about the damages sustained in those years. Plaintiffs seem to assume that the testimony concerning 1964 conditions apply to the preceding years. However, there is nothing specific in the evidence to show the extent of any filling of the river bed in any of those years or the size of the opening under defendant’s bridge. It does appear that at flood stage the river would wash out a deep hole under defendant’s bridge which would increase the flow under it and that this would fill between floods. There was no testimony that the stream was filled with piles of logs and other debris at the bridge in any of the preceding years as it was in 1964. Moreover, one of plaintiffs said there was no flood damage in 1961 while another had no damage in 1962, and they did not explain this, apparently differing as to whether there were floods in those years. It also appeared that between 1952 and 1960 land that was leveed did not overflow and it was said these were fairly dry years. If so, defendant’s bridge may not have had much effect on filling the channel during those years. Our view is that plaintiffs’ evidence was insufficient to show that defendant’s bridge caused the flooding of their lands in the years prior to 1964 but leaves this to speculation and conjecture. See Atchison, Topeka & Santa Fe Ry. Co. v. Hamilton Brothers (USCA 8th) 192 F. 2d 817; Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W.2d 924. Since damages for those years are included in plaintiffs’ lump sum verdicts, the court’s order granting a new trial on all issues must be affirmed.

We note that four of the plaintiffs claimed damages for 1964 only. If they were granted new trial on the issue of damages only, they would have to have separate trials from the other plaintiffs. Trials on separate single issues are mainly discretionary and all of the claims involved are so closely related with so much of the same evidence applicable to each that it would seem improper and unreasonable to take any action which would finally determine defendant’s liability for the 1964 flood to some plaintiffs but not to others. We cannot conclude that the court’s conflicting order intended any such result and we consider it would have been an abuse of discretion to do so in this case where there was such conflict in the evidence on the effect of defendant’s bridge. This is not a case where there could be a final judgment as to some plaintiffs as in Chappell v. City of Springfield, Mo.Sup., 388 S.W.2d 886, 892, because these plaintiffs, claiming only 1964 losses were not satisfied with the damages awarded them. They will have the opportunity to relitigate that issue, as will the other plaintiffs, in connection with the issue of liability.

The order is affirmed for a new trial for all plaintiffs on all issues.

PER CURIAM:

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: CHARLES SHANGLER, Special Judge.

license: Public Domain

text:
    Marjorie (West) ENGLISH, Appellant, v. OLD AMERICAN INSURANCE COMPANY, a Corporation, Respondent.
    No. 52986.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.
    As Modified on Court’s Own Motion and Rehearing Denied April 10, 1968.

      George L. Gisler, Kansas City, for appellant; Gisler & Howell, Kansas City, of counsel.
    Martin J. Purcell, Morrison, Hecker, Co-zad, Morrison & Curtis, Kansas City, for respondent.
   CHARLES SHANGLER, Special Judge.

On September 25, 1962, defendant Old American Insurance Company insured plaintiff’s husband, Albert West, against certain accidental injuries or death suffered while riding in a “private passenger automobile”. Superimposed upon the face of the insurance policy, in block letters, is the legend: “THIS IS A LIMITED POLICY READ IT CAREFULLY.” On September 14, 1963, Mr. West, returning home from work in his 1962 Chevrolet pickup, collided with a tractor-trailer, was injured and died of those injuries on October 2, 1963.

In due course, the plaintiff beneficiary made claim for payment and was refused. Defendant refused payment and defended the action brought on the policy on the ground that the half ton pickup was not a “private passenger automobile” within the context of the policy. That term was defined in the policy as follows:

“ * * * As used in this Policy, automobile means a land vehicle of the type commonly and ordinarily known and referred to as an ‘automobile’, and private passenger automobile means a private automobile designed primarily for transporting persons.”

A jury returned a verdict in favor of plaintiff in the amount of $15,000 plus interest of $750. The trial court sustained defendant’s after trial Motion for Judgment and entered judgment for defendant. Although defendant asserted four grounds in its Motion for Judgment, actually but two points are raised in it. Firstly, that the terms of the insurance contract between Mr. West and defendant were unambiguous, excluding, as a matter of law, the half ton pickup from its definition of “private passenger automobile”. Secondly, that the plaintiff failed to make a submissible case.

Plaintiff, on the other hand, offers five distinct grounds of error. As we will detail, they, too, can be reduced to merely two grounds, the others being either redundant or tangential. As asserted, however, the five are rendered verbatim:

“1. The design, construction and use of one half ton pick ups is (sic) primarily for passenger transportation.
“2. The words ‘designed’ and ‘primarily’ as used in the policy are ambiguous and that ambiguity should be resolved in favor of the insured. ‘Designed primarily’ means the principal use of the vehicle made by the insured.
“3. The cases uniformily hold that a pick up is a ‘private passenger automobile’.
“4. Where a vehicle has more than one purpose or design it is a question of fact for the jury to determine which use is ‘primary’. The verdict of the jury in this case, which was supported by overwhelming evidence should be restored.
“5. The automobile manufacturers themselves recognize the pick up to be designed primarily for transporting persons.”

The evidence presented at the trial was brief and we shall review it when apposite to a point under discussion. Counsel have assiduously briefed the questions involved. There appears to be a dearth of appellate decisions, both domestic and foreign, on the points involved and we are satisfied they have all been presented for our consideration. Curiously, both parties cite the same authorities, in some instances, to support their respective positions.

As we have observed, plaintiff’s five contentions of error can be fairly reduced to these two: 1. The words “designed primarily” as used in the policy are ambiguous, and such ambiguity should be resolved in favor of plaintiff. 2. Where a vehicle has more than one purpose or design, it is a question of fact to be determined by a jury as to which use is primary. In this determination, the principal use made of the vehicle by the insured is controlling.

All agree plaintiff is entitled to recover if the 1962 Chevrolet half ton pickup deceased was occupying at the time of the collision was a “private passenger automobile” defined in the policy further as a “private automobile designed primarily for transporting persons”. Are these policy terms ambiguous as they relate to that half ton pickup? If so, we are required to construe the insurance contract strictly against the insurer and liberally in favor of the insured. 44 C.J.S. Insurance § 297, page 1166; Hoover v. National Casualty Co., 236 Mo.App. 1093, 162 S.W.2d 363. The language of a contract is ambiguous when there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations. 44 C.J.S. Insurance, loe. cit.; Blashfield, Automobile Law and Practice, Volume 7, page 212; Union Electric Co. v. Pacific Indemnity Co., Mo.App., 422 S.W.2d 87. “Ambiguity [in a policy] arises when there is duplicity, indistinctness or uncertainty of meaning [of words used in a policy.]” Swaringin v. Allstate Insurance Company, Mo.App., 399 S.W.2d 131, at 133. Or, as defendant contends, does the policy definition, “Private automobile designed primarily for transporting persons” dispel any ambiguity which otherwise might have existed ?

The term “private passenger automobile”, without further policy definition, has been held to be ambiguous when applied to a half ton pickup in Detmer v. United Security Insurance Company, Mo.App., 309 S.W.2d 713. That case involved a claim for property damage to a 1954 half ton Ford pickup. The insurance policy afforded coverage to the insured while operating a non-owned “private passenger automobile”; that phrase was not further defined in the policy. Appellant contended that vehicle, as a matter of law, did not come within the meaning of “private passenger automobile”. No evidence was offered as to the construction of the pickup or the use made of it. Relying on the leading case of Aetna Life Ins. Co. of Hartford, Conn. v. Bidwell, 192 Tenn. 627, 241 S.W.2d 595, the court, in effect, judicially noted that “such half-ton pickups are adapted for and commonly used in part as passenger cars” (Detmer v. United Security Insurance Company, Mo.App., 309 S.W.2d 715). It also' reviewed numerous decisions from other jurisdictions, most of which have been briefed by counsel on this appeal, and concluded, at 309 S.W.2d 717:

“It is our opinion * * * that in each case the ultimate question to be determined is one of fact — that is, was the automobile within the meaning of the policy, a ‘private passenger automobile’? Was it a motor vehicle designed and commonly used for and was it actually being used for transporting passengers? In order to determine this ultimate question, evidence as to the construction of the vehicle, how such vehicle was commonly used, and how it was being used is competent and material. Probably in some instances the evidence would be so overwhelming, as with a tractor-trailer or a sports convertible, as to make determination of that fact a question of law. * *”

In Fidelity and Casualty Co. of N. Y. v. Martin, C.A. 9, 66 F.2d 438, decided in 1933, the policy afforded coverage to the insured “while riding in * * * or on, driving * * * a private passenger automobile”. It excluded coverage “while riding or driving in or on any motorcycle, automobile truck”. None of the terms was further defined. At the time of the occurrence, the insured was on a fishing trip, driving a “Ford Roadster Pick-up closed cab” purchased in 1929. It was equipped with a removable box at its rear, 54 inches by 43 inches in dimension. The vehicle actually was used both for the cartage of light burdens and for pleasure purposes. The question presented was whether the pickup was a “private passenger automobile” within the meaning of the policy. The court concluded, at pages 440-441:

“We see no escape from the proposition that under the evidence the question was one of fact. It the car had been a Ford roadster equipped to carry passengers only, or a heavy truck solely adapted to carry freight, * * * no doubt the question of the applicability of the policy of insurance * * * would be a question of law, but, where the automobile is of the character disclosed by the evidence, its classification is one of fact to be determined by the court or jury, as the case may be.”

The court also held that the use made of the vehicle by the insured was material to such determination.

In Poncino v. Sierra Nevada Life & Casualty Co., 104 Cal.App. 671, 286 P. 729, (1933), defendant undertook to insure the life of Eugeno Poncino against death resulting from accident occasioned by “the wrecking of any private passenger motor-driven car” (not further defined) in which he was riding or driving. The vehicle in question was equipped with a delivery wagon body and the issue was whether it was a “private passenger motor-driven car” within the meaning of the policy. The court held it was a jury issue in view of the evidence as to the use to which it had been put. It observed: “ * * * the manner in which a vehicle is used, as well as its construction, is an important factor in determining its character”. See also, Smith v. Maryland Casualty Co., 63 N.D. 99, 246 N.W. 451.

On the other hand, in La Fon v. Continental Casualty Co., 241 Mo.App. 802, 259 S.W.2d 425, it was held as a matter of law that a 1950 Studebaker pickup, being used by a dragline operator while returning to his home from work, was not a “private pleasure type automobile”. The court found that policy provision unambiguous as it related to the described vehicle. That insuring clause, however, is so significantly different from the one under consideration as to effectively eliminate that decision as a precedent for us. Compare: Senn’s Adm’x v. Michigan Mutual Liability Co. (Ky. Court of Appeals, 1954), 267 S.W.2d 526.

Another common source of ambiguity in such insurance policies is a clause which specifically excludes certain vehicles, thereby, inferentially, admitting all others to coverage. Aetna Life Insurance Co. v. Bidwell, supra; Hoover v. National Casualty Co., supra; and involving a pickup, Gaumnitz v. Indemnity Insurance Co. of North America, 2 Cal.App.2d 134, 37 P.2d 712 (1934). Of such is not the problem confronting us.

Upon a consideration of all the authorities to which we have been directed and of which we are aware, we deem the correct rule to be that where an insurance contract undertakes to insure the operator or occupant of a “private passenger automobile” without further policy definition thereof, an ambiguity exists as to whether a 1962 Chevrolet half ton pickup is intended to be covered thereby. That determination is one of fact for the jury. Detmer v. United Security Insurance Co., supra.

The policy under consideration, however, does undertake to define “private passenger automobile” as “a private automobile designed primarily for transporting persons”. Respondent insurer contends: “ * * * where the phrase ‘private passenger automobile’ has been defined, as it was in the instant policy, (the cases) have held that the insurer was entitled to judgment as a matter of law”. Implicit in this argument is the assumption that the court, having heard no evidence, must take judicial notice that the vehicle under discussion was “designed primarily” by the manufacturer to perform some principal function other than that of transporting persons. For the same reasons that we decline a similar request by plaintiff, which are amply stated hereinafter, we decline, as well, that of defendant. We judicially know that such vehicles “are adapted for and commonly used in part as passenger cars”: Detmer v. United Security Insurance Co., supra. We judicially know, as well, that such vehicles are adapted for and commonly used in part to bear freight and merchandise. Which use was intended by the manufacturer to be primary is doubtful as a fact of general knowledge, and therefore, it cannot be accorded judicial recognition. Kamo Electric Co-op, Inc., v. Dicke, Mo.App., 296 S.W.2d 905. Otherwise stated, the policy “definition” does not dispel the ambiguity previously noted, so that a jury question is presented as to whether the vehicle in question was “a private automobile designed primarily for transporting persons”. The authorities we have considered convince us of the futility of fastening an immutable classification upon such a versatile vehicle as a half ton pickup. Furthermore, the insurer had it within its ready means to have removed all uncertainty whether coverage to such a vehicle was intended. It could either have specifically excluded it, Detmer v. United Security Insurance Company, supra, 309 S.W.2d at pages 717-718, or have employed a more preclusive definition. Cf. Spence v. Washington Nat. Ins. Co., 320 Ill.App. 49, 50 N.E.2d 128 (1943).

Plaintiff contends that not only is a jury issue raised as to whether the 1962 Chevrolet half ton pickup properly comes within the policy coverage but also, in this determination, the principal use made of the vehicle by the insured is both controlling and material. Under this specific policy, we conclude, it is neither. Although the terms of this policy, being ambiguous, must be construed most favorably to the insured and strictly against the insurer, that rule is “subject to the * * * limitation that such language ordinarily cannot be construed otherwise than according to its plain and ordinary meaning”; 44 C.J.S. Insurance § 297, p. 1190. Also, Blashfield, Cyclopedia of Automobile Law and Practice, op. cit., Volume 7, page 212. The word “designed” as contained in a statutory definition was construed in State of Missouri v. Lasswell, Mo.App., 311 S.W.2d 356. The defendant was charged with driving a commercial vehicle which failed to display certain information as required by statute. Defendant contended his 1955 Ford pickup was not a commercial vehicle. The court, sustaining the conviction, considered the statutory definition of “commercial vehicle”: “A motor vehicle designed * * * for carrying freight and merchandise.” It held that when applied to property such as defendant’s truck, the word “designed” refers to the purpose for which it was constructed and not the use to which it was put by the purchaser; at pages 358— 359:

“When applied to property, 'designed’ ordinarily refers to the purpose for which it has been constructed [26A C.J.S. 863], and the purpose contemplated and intended by the manufacturer, not the purchaser, usually becomes the controlling factor. (Citations).
“ * * * ⅛ motor vehicle designed * * * for carrying freight and merchandise’ [Section 301.010(1)], is a motor vehicle suitable and adapted for the purpose, intended by the manufacturer, of the transportation of goods and tangible articles of commerce, whatever they may be.
“ * * * defendant’s argument loses sight of the fact that the determinative issue was not whether defendant’s pickup actually had been used for carrying merchandise * * * but rather was whether his pickup was a ‘motor vehicle designed * * * for carrying freight and merchandise’ * * * i. e., whether it was suitable and adapted for the purpose, intended by the manufacturer, of the transportation of goods and tangible articles of commerce, whatever they might have been.”

Of similar import is the holding in United States v. Sommerhauser, (U.S.D.Ct., Kansas 1932) 58 F.2d 812, where the government contended defendant’s truck should be forfeited by statute relating to property designed for the manufacture of liquor. The court denied forfeiture and stated, at page 813:

“The government contends that the word ‘designed’ means the use to which the owner intends to put the property. ‘Design’ is sometimes synonymous with ‘intent’; but physical property has no intention; and ordinarily, if property is spoken of as ‘designed,’ it refers to the purpose for which it was constructed.”

Webster’s Third New International Dictionary defines “primary” as: “1st in order of time or development * * * first in rank or importance * * * something that stands first in order, rank or importance * * * CHIEF, PRINCIPAL * * *”. Equivalent definitions are rendered for “primary” and “primarily” in a number of judicial decisions found in Words and Phrases, Volume 33, p. 559.

The clear meaning of the words “designed primarily” within the context of the policy issued by defendant is the chief or principal purpose for which the vehicle was constructed, and the purpose intended by the manufacturer is controlling. Ultimately, therefore, whether plaintiff may recover under the policy depends upon whether there was substantial evidence that the manufacturer of the 1962 Chevrolet half ton pickup intended its principal purpose as that of transporting persons. A review of all the evidence considered in a light most favorable to plaintiff requires the conclusion that she did not make a submis-sible case.

Plaintiff and her husband, now deceased, lived on a 160 acre farm near Garden City, Missouri. Mr. West was a foreman for a construction firm and did no farming. Apart from the occasional use of this vehicle to carry groceries and to carry a log, jack and chain in its bed, it was used exclusively for the transportation of persons. The vehicle bore a Missouri truck license. Joseph M. Crahan, vice president of R. B. Jones & Sons, Inc., a Kansas City insurance agency, testified for plaintiff. He was an underwriter and identified the American Casualty Manual published by the National Bureau of Casualty Underwriters. That organization consisted of about fifty automobile casualty companies associated for the purpose of establishing insurance rates based upon loss experience. There was no evidence or contention that defendant insurance company had ever agreed to accept or be bound by the classifications contained in the Manual. Page 27 of the Manual was received in evidence. It related to definitions of “private passenger automobile”, but no explanation was offered as to how the classifications or definitions were determined. Among the vehicles classified as a private passenger automobile was “(b) A motor vehicle with pickup body * * * with a load capacity of 1,500 pounds or less * * * ”. Mr. Crahan professed no unusual knowledge concerning the design of automobiles and trucks. We find nothing in Mr. Crahan’s testimony by which the jury’s verdict can reasonably be supported.

If plaintiff made a submissible case, it could only have been accomplished by the testimony of Mr. James Thomas Riley, Regional Merchandising Manager of New Trucks for the Chevrolet Division of General Motors. He supervised the sale of some 65,000 trucks to about 973 dealers throughout portions of ten states. He was familiar with “the construction and specifications of pickup trucks as well as sedans and station wagons and carry-alls”, including the 1962 models of these vehicles. Whether or not he was intended as an expert, he testified as one both during direct and cross-examination. This witness undertook to make detailed comparisons between a 1962 Chevrolet half ton pickup, Chevrolet passenger vehicles and certain trucks, including their respective steering ratios, suspension systems, effective brake lining areas, frames, wheel bases, etc. There is an indefinite aspect about his testimony only because it is not always clear whether his references to “pickups” and “trucks” related to the 1962 half ton model or others. Very often it explicitly related to other models. As best as we are able to determine, the only absolute structural identity between the 1962 half ton pickup and a standard sedan was the steering ratio of 24 to 1. There were, however, several areas of similarity, such as brakes, wheel bases and curb weights. There was no explanation offered as to how these similarities- entered into the purposes for which the respective vehicles were manufactured. Mr. Riley also testified that in 1966, the sale of “campers” constituted twenty percent of all pickup sales. In 1962, however, only eight percent of all pickup sales were for campers, and of that eight percent, about sixty-five percent were three quarter ton pickup sales. Significantly, Chevrolet did not manufacture campers, as such, so that a purchaser of a pickup intending it for camper purposes would be required to purchase the superstructure from a different manufacturer.

The testimony elicited from Mr. Riley upon cross-examination amplified portions of his testimony during his direct examination. Also, certain other evidence was elicited hearing directly on the manufacturer’s purpose intended for the 1962 half ton pickup. He testified that there was a difference in the effective lining areas of the respective brakes and that the torsion bar used in the half ton pickup and sedans was different, all unexplained as to purpose or function. Also, although “X” frames were used in the manufacture of both, the pickup frame was reinforced in some manner because of the heavier loads expected to be borne by it. He also identified the Chevrolet 1962 shop manual, issued by his employer and dealing with trucks. Pickups were covered in the truck manual. He also identified a truck data book for 1962 relating to Chevrolet pickups. He identified the vehicle in issue as "a model C-1404 Chevrolet pickup truck”. The foreword to that 1962 truck data book, immediately before the section dealing with pickups, contained certain suggested questions to be asked of prospective purchasers of pickups. Among them is found: “What is the maximum length of the body of equipment to be used ?” Mr. Riley advanced as the reason for that question “ * * * to find out what they want to haul in it * * * it was anticipated, he testified, that such trucks would be used to haul merchandise, goods and equipment. That section of the data book dealing with pickup trucks listed “typical users” the manufacturer had in mind for their use. Seventeen “typical users” were enumerated in evidence, ranging from automotive service stations to public utilities. Mr. Riley admitted that the primary interest of such users would be the transportation of merchandise, equipment and such, not the transportation of persons and that such was the intention of the manufacturer. It is abundantly clear from his testimony that the manufacturer classified and considered the 1962 Chevrolet half ton pickup as a truck, a vehicle constructed by it for the principal purpose of transporting merchandise and goods. Mr. Riley’s testimony was the only testimony offered by either party on this essential issue. Plaintiff is bound by the unfavorable and uncontradicted testimony of Mr. Riley. There is no evidence, through Mr. Riley or any other witness from which the jury could reasonably have inferred that the manufacturer’s purpose in constructing the vehicle in question was principally for the transporting of persons. Plaintiff failed to make a submissible case. Reece v. Reed, Mo.Sup., 326 S.W.2d 67; Lowes v. Union Electric Company, Mo.App., 405 S.W.2d 506; Taylor v. Vestal, Mo.Sup., 304 S.W.2d 820.

Finally, in her reply brief, plaintiff urges this court to take judicial notice “of the facts in the article in Business Week”. It refers to certain excerpts therefrom which are reprinted in appellant’s brief. That article contains such “facts” as:

“Sleek and streamlined, the new pick ups look more like passenger cars than trucks, and for good reason. The 1964 Chevelle El Camino, for example, is built on a passenger car chassis and is, according to J. E. Coulan, assistant sales manager in charge of trucks at Chevrolet, ‘a passenger car licensed as a truck’.”

The application of the doctrine of judicial notice, either as a rule of evidence or as an instrument of judicial reasoning, is subject to well recognized limits. The basic operative condition of judicial notice is the notoriety of the fact to be noticed. It must be part of the common knowledge of every person of ordinary understanding and intelligence; only then does it become proper to assume the existence of that fact without proof. It follows, therefore, that judicial notice must be exercised cautiously, and if there is doubt as to the notoriety of such fact, judicial recognition of it must be declined. Timson v. Manufacturers’ Coal & Coke Co., 220 Mo. 580, 119 S.W. 565; 74 Law Quarterly Review 59 (1958), “The Limits of Judicial Notice”; Wigmore on Evidence, Third Edition, Volume IX, page 531, et seq. As we understand it, plaintiff requests in this instance that we apply the doctrine as a rule of evidence; that is to say, she requests that we acknowledge the existence of certain “facts” as declared in the publication, without requiring their proof. We have not been directed to any specific fact or facts to be judicially noticed. Assuming the information quoted above from the article is relevant to the trial issue involving a 1962 Chevrolet half ton pickup and further assuming it to be such a “fact” of general knowledge properly subject to judicial notice (which we do not acknowledge), it would still be subject to rebuttal. The taking of judicial notice of a matter in the sense proposed is but a prima facie recognition of it and does not foreclose its rebuttal by the other party. Scheufler v. Continental Life Ins. Co., 350 Mo. 886, 169 S.W.2d 359; Brock v. American Central Life Ins. Co., Mo.App., 44 S.W.2d 200; 56 Dickinson Law Review 464 (1952), “Judicial Notice and Rebutting Evidence”.

The basic soundness of the rule permitting rebutting evidence in such instances is demonstrated by the record on this appeal. It should be remembered that plaintiff’s trial theory was: “Where a vehicle has more than one purpose or design it is a question of fact for the jury to determine which use is ‘primary’ ” (Point 4 of Appellant’s Brief). Plaintiff offered Mr. Riley to prove that the vehicle in question was designed primarily for transporting persons. He offered no substantial testimony from which that ultimate fact could be resolved by the jury favorably to plaintiff. To the contrary, his testimony effectively tended to prove that its principal purpose was to transport merchandise, goods and equipment. If we judicially noticed the “facts” contained in the Business Week article relating to that issue, and thereby restored to plaintiff her jury verdict, we would, in effect, be directing a verdict for the party charged with the burden of proof without allowing the opposing party the right to adduce rebutting evidence. The absurdity of such a proposition is self-evident. The article contained no “facts” properly subject to judicial recognition, and we accord them none.

The judgment is affirmed.

HENLEY, P. J., and SEILER, J., concur.

STORCKMAN, J., not sitting.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Paul Irving JEFFERSON, Appellant.
    No. 52764.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Rehearing Denied April 8, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Special Asst. Atty. Gen., St. Louis, for respondent.
    William G. Guerri, St. Louis, for appellant.
   PER CURIAM:

Having been found guilty by a jury appellant was convicted of the commission of the crime of second degree burglary and was sentenced to confinement in the Department of Corrections for nine years. On this appeal appellant assigns as error two matters: (1) After ordering a mistrial for an alleged prejudicial question asked of a witness by state’s counsel, the trial court committed error in setting aside the order of mistrial (upon request of counsel for defendant), instructing the jury to disregard the question and proceeding with the trial; and (2) appellant’s rights to counsel under the United States Constitution (Sixth Amendment) and the Missouri Constitution [Art. I, § 18(a)] V.A.M.S., were violated because he was not represented by counsel at his preliminary hearing.

The submissibility of the state’s case is not challenged and it therefore suffices to say that appellant was found by officers inside a restaurant building, the front window of which was broken, at 1039 North Sarah in St. Louis on May 22, 1966. Appellant was arrested, subsequently charged and was tried for said crime as a result of that event.

As to the first-mentioned alleged error, this is what transpired: On redirect examination of police patrolman Michael Brooks (who first testified he saw appellant inside the restaurant), Mr Hutnick asked:

“Q. Is this what is commonly referred to as a caught inside burglary?
“MR. GOLDBLATT: Now, I’m going to object to that, Your Honor.
“THE COURT: Just a minute. What was the question?
(Whereupon, the reporter read back the following:
‘MR HUTNICK: Officer, one other question.
‘Q. Is this what is commonly referred to as a caught inside burglary?’)
“THE COURT: Objection sustained.
“MR. HUTNICK: No further questions.
“MR. GOLDBLATT: Your Honor— Would you step up here, please?”

Outside of the hearing of the jury, upon the ground that the statement made by Mr. Hutnick was extremely prejudicial to appellant, his counsel requested a mistrial. The trial court sustained the motion for mistrial and told counsel to be ready to try the case which the court stated would be number one on (the following) Monday. Appellant’s counsel then told the court that he would have to withdraw his motion for mistrial because his client had been confined in jail for six months, and that he would like to continue with the case if the court would instruct the jury to disregard that statement. Within the hearing of the jury appellant’s counsel asked the court to instruct the jury to disregard the comment made by the Circuit Attorney, Mr. Hutnick, about this being what he called an inside burglary job. The court did so instruct the jury.

Appellant was granted all of his requested relief. First, he was granted a mistrial for the alleged improper question of state’s counsel. Second, his motion to withdraw that request was granted, and then he was granted his request that the court instruct the jury to disregard the question asked by Mr. Hutnick. In State v. Preston, Mo., 184 S.W.2d 1015, 1017 [4-6], it was said, “The court did everything that was requested or implied in the objection made, and in the absence of a request for other and further action on the part of the court it must be assumed that the defendant was satisfied that the court’s ruling was sufficient to remove the prejudicial effect of any impropriety.” See State v. Butler, 258 Mo. 430, 167 S.W. 509, 510 [3, 4], where on two of three occasions of objections and requests for instructions to the jury to disregard remarks of counsel in argument the court did act as so requested and there was no further request. The court said, “It is therefore to be assumed that appellant considered the action of the court sufficient in that regard.” See also the comparable situations in State v. Marlin, Mo., 177 S.W.2d 485, 487, and State v. Armstead, Mo., 283 S.W.2d 577, 583 [13]. The unanswered question put to the witness does not fall within the rules of noncurable error (assuming that Mr. Hutnick’s question was improper) announced in appellant’s cited cases, State v. Burchett, Mo., 302 S.W.2d 9, 13, 15 [3]; State v. Benson, 346 Mo. 497, 142 S.W.2d 52, 55 (erroneous admission of incompetent evidence highly prejudicial to defendant’s rights not cured by an instruction withdrawing same from the jury’s considerations) ; State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 142, 143; and State v. Fulkerson, Mo., 331 S.W.2d 565, 570 [1],

The transcript shows that appellant was present without counsel at his preliminary hearing but did not himself testify. He points to nothing that occurred during the preliminary hearing that was improperly used to his prejudice in his trial in the Circuit Court. In that circumstance, the relied-upon cases of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, are not applicable. See State v. Smith, Mo., 411 S.W.2d 208, 209, and the there cited case of State v. Gagallarritti, Mo., 377 S.W.2d 298, 301; State v. Durham, Mo., 416 S.W.2d 79, 82 [5-7], and cases cited. Appellant was not, as a matter of federal or state constitutional right, entitled to have counsel appointed for him at his preliminary examination.

Matters specified in Supreme Court Rule 28.02, V.A.M.R., have been followed. The judgment is affirmed.


author: GEORGE P. ADAMS, Special Judge.

text:
    SUNRAY DX OIL COMPANY, Plaintiff-Respondent, v. Lawrence E. LEWIS and Ethel I. Lewis, Defendants-Appellants.
    No. 52617.
    Supremo Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Watson, Ess, Marshall & Enggas, Robert I. Donnellan, Clayton R. Smalley, Kansas City, for plaintiff-respondent.
    Rufus Burrus, Independence, for defendants-appellants.
   GEORGE P. ADAMS, Special Judge.

Defendants-appellants appeal from a decree ordering them to specifically perform certain obligations undertaken by them under a lease with plaintiff-respondent whereby a tract of a little less than an acre, located in the northeast quadrant of the I-70-Noland Road interchange in Jackson County, Missouri was leased to plaintiff.

On and prior to April 25, 1963, defendants were the owners of a number of acres located in the northeast quadrant of said interchange. On the 10th day of May, 1963, and before the actual construction of said interchange, they executed a “station site lease,” dated April 25, 1963, leasing the tract described in said lease to plaintiff for a term of five years at a gallonage rental of one cent per gallon for each gallon of gasoline delivered to said premises by the lessee or its agents, with the further provision that such rental payments would amount to a minimum of Two Hundred Dollars per month.

Plaintiff was permitted to use the site “for a motor vehicle service station for the sale of petroleum products and other merchandise customarily handled by such service stations; and for servicing of motor vehicles; and for the conduct of any other lawful business; and the Lessee is hereby given the right to sublease or underlet said premises.”

Defendants agreed to fill said premises to a grade to be determined by plaintiff, with the cost thereof to be shared on a fifty-fifty basis with plaintiff. Defendants also agreed to construct an “access road” 36 feet in width, running east from the State Highway right-of-way line on Noland Road and abutting the tract along its south boundary, provided “such access road is granted to lessor by the Missouri State Highway Department.” There was no provision for plaintiff to share any of the expenses of the construction of this road.

Defendants were prohibited from constructing, maintaining or operating a motor vehicle service station or permitting the sale of motor fuel or other merchandise “customarily handled by such service stations” on any of their premises immediately adjoining or within three hundred feet of the leased tract.

Plaintiff was granted the option of extending the primary term of the lease for four additional successive periods of five years each, at the same rental per month and on the same terms and conditions.

Plaintiff was granted an option to purchase the premises “on the same terms and at the same price as any bona fide offer for said premises received by lessor and which offer lessor desires to accept.”

The lease further provided that it should not become effective until executed by a Vice-President of plaintiff and that “should the Lessee fail to deliver an executed counterpart of this lease to Lessor on or before ninety days from date hereof, Lessor and Lessee shall be relieved of any further liability to each other.”

Under the terms of the lease, the defendants were required, upon plaintiff’s request, to furnish plaintiff “complete abstracts of title, or proof of insurable title, certified to date, and such other evidence of title as Lessee may request, for examination.”

Within ninety days of the date of said lease, plaintiff, as authorized by the lease, mailed an “executed counterpart” of the lease to defendants.

By the pleadings, the ownership of the premises is agreed to be in the defendants.

In its petition, plaintiff alleged that under said instrument, it was granted a ninety day option to lease the tract described; that the option was exercised by it by executing said lease and delivering the same to defendants within said ninety day period; that defendants refused to recognize the option and refused to deliver to plaintiff satisfactory evidence of their title and refused to perform any of the other duties and obligations undertaken by them “in granting said option and lease.”

In Count I, plaintiff sought a judgment declaring “that the option granted by defendants to plaintiff was valid and that plaintiff exercised said option and holds a valid and existing lease on said real estate and is entitled to possession thereof in accordance with the terms and conditions of said lease and for such further relief as may be equitable.”

In Count II of its petition, plaintiff adopted all of the paragraphs of Count I and prayed “that the defendants be required to specifically perform said option and lease and that plaintiff have such further relief as may be equitable.”

In their Answer, in addition to admitting the ownership of the premises, defendants denied that they were “obligated to recognize the claimed option because none was granted by them,” and denied that they were obligated to deliver any evidence of title to any real property.

Defendants plead further that “if this court should find that the paper writing mentioned by Plaintiff in its petition did in fact constitute an option for ninety days to lease the premises described in said writing that the same is invalid and of no force or effect for the reasons * * (1) there was no consideration for any option; (2) that the description was vague and indefinite and insufficient to enable the location of the area sought to be covered; (3) that “a portion, if not all of the frontage owned by Defendants on Noland Road was contained in an eminent doman (sic) proceeding by the State of Missouri * * * which cause had then resulted in the said Plaintiff (State Highway Commission), obtaining lands of Defendants and in obtaining all of the access said lands had to Noland Road, and that therefore it was impossible for the proposed filling station site to have access to Noland Road * * (4) that the paper writing was indefinite and contradictory; (5) that plaintiff had abandoned its rights under the instrument by rejecting it and making a new and different proposal; (6) that plaintiff was estopped from claiming any rights or benefits by reason of the paper; (7) that it was guilty of laches; (8) that “said paper writing provides for an inequitable and insufficient rental” because defendants would not “be permitted to participate in any of the income derived from the sale of oil ‘and other merchandise customarily handled by such service stations; and for the servicing of motor vehicles; and for the conduct of any other lawful business;’ or to participate in any business which might be carried on by any sub-lessee of said premises.”

In Count I defendants prayed that the court “decree that this Plaintiff has no right, title, interest or estate in or to the lands mentioned in Plaintiff’s petition and for such other and further orders, judgments and decrees as to the court shall seem just, meet, equitable and proper.”

In Count II of their answer, defendants adopted all of the paragraphs of Count I of the answer, denied the paragraphs of Count II of the petition and prayed that the court “deny the relief sought by the plaintiffs (sic) herein and for such other and further orders, judgments, and decrees as to the Court shall seem just, meet, equitable and proper.”

In its reply, plaintiff denied all of the affirmative matters pled in defendants’ answer.

By its decree, the Court found the issues generally in favor of plaintiff and against defendants on Counts I and II of the petition and found that plaintiff was entitled to the relief prayed.

With respect to Count I, it decreed specifically “that the option and lease under date of April 25, 1963 and executed by defendants on May 10, 1963, was and is valid; that plaintiff duly exercised such option and holds a valid and existing lease” to the property described in the lease; and that plaintiff was entitled to possession thereof.

With respect to Count II, it ordered defendants to specifically perform their obligations under said lease “including but not limited to the following:” (1) furnish plaintiff with abstract of title or proof of insured title; (2) surrender possession of the premises; (3) cause the property to be filled to a grade acceptable to plaintiff, with the costs to be borne one-half by plaintiff and one-half by defendants; (4) cause construction of access road at defendants’ cost 36 feet in width running east from the Interstate 70 State Highway right-of-way line on Noland Road and abutting said real property along its southern boundary line; and (5) secure consents and permits as necessary for lessee’s use of said property for service station purposes.

Following the overruling of their motion for a new trial, defendants appealed to this court.

Defendants attempt to invoke the appellate jurisdiction of this court “because the trial court decreed specific performance of a lease of real property for a term of five years, with four five-year renewal options, and by reason of Article V, Sec. 3, of Missouri Constitution, suits directly involving the title to real estate gives this court jurisdiction.”

In Plaintiff’s brief, no statement is made with reference to the grounds of appellate jurisdiction of this court. Plaintiff apparently agrees that we have appellate jurisdiction.

Before considering the contentions of the parties on the merits of the cause, we must first determine whether we have appellate jurisdiction. This is required even though there is no dispute between the parties and such jurisdiction is conceded by them. It cannot be conferred by agreement or consent. Bock v. Sheahan Investment Company, et al., Mo.Sup., 412 S.W.2d 393, 395(1). The courts of appeals have general appellate jurisdiction but the Supreme Court is limited to the appellate jurisdiction specifically conferred by the Constitution. Article V, Sections 3 and 13, Constitution of Missouri, 1945 V.A.M.S.; Fisher, et al. v. Lavelock, Mo.Sup., 282 S.W.2d 557, 560(1,2).

In order for an action to involve title to real estate in the constitutional sense, the judgment sought or rendered must directly affect, or operate upon, the title itself — it must adjudicate a title controversy. Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771, 774(8); Blake, et al., v. Shower, et al., 356 Mo. 618, 202 S.W.2d 895, 897. A leasehold estate is personal property for purposes of determining appellate jurisdiction. This is because a leasehold was a “chattel real” at common law and no statute has been enacted to convert it to real property for this purpose. Thacker, et al., v. Flottmann, Mo.Sup., 244 S.W.2d 1020, 1023(8-10), and cases there cited. Hence, a controversy concerning a leasehold estate, regardless of its duration, does not involve title to real estate so as to confer jurisdiction on this court.

In the instant case all parties concede and agree that title to the premises is in defendants. The title to real estate is, therefore, not involved. Ochler, et al. v. Philpott, et al., Mo.Sup., 253 S.W.2d 179, 180(1). Plaintiff’s action, instead of disputing defendants’ title, merely endeavors to subject the premises, as the defendants’ property, to plaintiff’s right of possession. Nettleton Bank v. McGauhey’s Estate, supra, 2 S.W.2d 774. Title to the premises is not in anywise in dispute.

Even though no further basis for our jurisdiction is asserted, we must, nevertheless, review the entire record to determine if we have appellate jurisdiction on any other grounds.

Does the fact that the lease grants plaintiff an option to purchase the premises bring the case within our appellate jurisdiction?

An option has been defined as “a privilege * * * a right of election to exercise a privilege.” Thacker v. Flottmann, Mo.Sup., supra, 244 S.W.2d 1022. An option “is but an offer, at most a contract * * *, which confers a privilege * * *, but which does not in itself transfer an interest or title in land.” Farmer v. Littlefield, et al., 355 Mo. 243, 195 S.W.2d 657, 659(3); Fisher, et al., v. Lavelock, supra, 282 S.W.2d 560(5).

The option to purchase contained in the instant lease does not involve title to real estate in the appellate jurisdictional sense.

Under the terms of the lease the defendants agree to furnish plaintiff with evidence of their title. This provision does not make title to real estate involved in the case. It simply enables the plaintiff, before proceeding with the erection of a filling station and appurtenances to satisfy itself that defendants have good title and, consequently, the right to lease the premises.

The decree herein does not affect, or operate upon, defendants’ title; it does not adjudicate a title controversy. This is, therefore, not a case “involving * * * the title to real estate” within the Constitution.

Even though title to real estate is not involved, we must continue to search the record to determine if other grounds for our appellate jurisdiction exist.

The only other possible basis would be that the case is one where the amount in dispute, exclusive of costs, exceeds the sum of $15,000.00. Section 477.040, V.A. M.S. What then, is “the amount in dispute” here?

Since a money judgment was not sought, the amount in dispute “must be determined by the money value of the relief to plaintiff, or of the loss to defendant, should the relief be granted, or vice versa, should the relief be denied.” Frank Schmidt Planing Mill Co. v. Mueller, et al., 347 Mo. 466, 147 S.W.2d 670, 671(2).

Jurisdiction on the basis of the amount in dispute attaches only when the amount in controversy “independent of all contingencies” exceeds the minimum jurisdictional amount; it cannot be on the “basis of mere chanceit cannot be left to “speculation or conjecture;” it must “affirmatively appear from the record” that the amount in dispute exceeds the jurisdictional amount. State ex rel. Missouri-Kansas-Texas Railroad Company v. Public Service Commission, et al., Mo.Sup., 378 S.W.2d 459, 464(2); Johnson v. Duensing, et al., Mo.Sup., 332 S.W.2d 950, 956(10, 11); Frank Schmidt Planing Mill Co. v. Mueller, et al., supra, 147 S.W.2d 671(3).

The issues as drawn by the pleadings define the controversy or dispute and are the basis of the “amount in dispute.”

There is nothing in the record to show “the value of relief to plaintiff” if the relief is granted or the “loss” to plaintiff if relief is denied. There is nothing in the pleadings, the evidence, or the decree to show what benefits in dollars plaintiff would receive if the lease is held valid or the damages or loss it would sustain if the lease is held invalid. There is nothing from which a monetary value can be determined from the plaintiff’s right of occupancy, if successful, or loss thereof, if unsuccessful.

The fact that plaintiff will have to pay rent for the use of the premises is not to be considered for that is something it would have to pay for the enjoyment of the property (Jackson, et al. v. Merz, 358 Mo. 1212, 219 S.W.2d 320, 321 (4). In any event, the only “affirmative” showing of the amount of rent is $200.00 per month, $2,400.-00 per year, or $12,000.00 for the primary five-year period of the lease. Consideration of additional amounts to be paid if options for renewals were exercised require speculation and conjecture.

There is nothing in the record to show the “value of relief” to defendants if the decree is reversed. Again the pleadings, evidence and decree do not show what benefit in dollars defendants would receive if the lease is held invalid. The rental value of the premises, other than that provided in the lease itself, is not shown. In what manner and in what sum defendants will benefit from the denial of the relief sought by plaintiff is not made to appear.

Under the lease, defendants were also obligated to furnish an abstract of title or proof of insurable value for examination by plaintiff and they were prevented from constructing, maintaining or operating a filling station within 300 feet of the premises described in the lease. But the record is silent as to the costs of furnishing such evidences of title or what loss or damages, if any, defendants would sustain by not being permitted to construct and operate a filling station within 300 feet of the premises.

The only expense that defendants will sustain as the result of the controversy or dispute that appears affirmatively from the pleadings, evidence and decree results from their obligation to “fill” the premises to grade and construct the 36 foot access road “provided such access road is granted” by the Highway Department. The cost of the fill was shown to be approximately $14,000.00 with one-half of such expense to be borne by plaintiff, or a $7,000.00 cost to defendants. The cost of the access road (if granted by the Highway Department) was shown to be approximately $5,000.00. These expenses aggregate only $12,000 and are, of course, under our minimum appellate jurisdiction.

Against these expenses, defendants will recoup at least the same amount during the primary term of the lease.

There is one more matter that requires attention. Apparently in response to that part of defendants’ answer relating to a condemnation proceeding wherein they claimed that all access to Noland Road had been taken and “therefore it was impossible for the proposed filling station site to have access to Noland Road,” witnesses were interrogated as to what, if any, access to Noland Road defendants’ property would have after construction of the interchange. As noted in more detail later, just what access defendants’ property would, or would not, then have to Noland Road does not affirmatively appear. However, defendant, Lawrence Lewis, testified that if the tract described in the lease took their access to Noland Road, defendants’ remaining acreage would, in his opinion, depreciate 70% of its original value of $150,000 to $200,000.

It must be borne in mind that the issues, and consequently, the “dispute,” consisted of the questions: (1) Did the instrument signed by defendants give plaintiff an option to lease? (2) Was there consideration for such an option? (3) Was the option exercised? (4) If it was a lease, was it invalid because: (a) the description was “vague and indefinite” and “insufficient to enable the location of the area sought to be covered;” (b) all access to Noland Road had been taken making it impossible for the site to have access to Noland Road; (c) the lease was “indefinite and contradictory;” (d) plaintiff had abandoned its rights under the lease by rejecting it and making a new and different proposal; (e) plaintiff “failed to do anything further with respect” to the lease and was “estopped from claiming any rights or benefits by reason thereof;” (f) plaintiff was guilty of laches; (g) the lease provided “for an inequitable and insufficient rental” because defendants would not share in “income” derived from the sale of oil and other merchandise, for servicing motor vehicles or for the conduct of other lawful business or participate in any business that might be conducted by a sublessee ?

It is possible that the “affect,” if any, that the lease in question might have had on defendants’ remaining land could have been made an issue under a plea that the consideration for the lease was “inequitable and insufficient” because of a depreciation in the value of such remaining land. But such an issue was not presented. The sole basis for a claimed “inequitable and insufficient rental” was because defendants would not be permitted to “participate” in any income derived from the sale of oil and other merchandise, for servicing motor vehicles and the conduct of “other lawful business” or business which might be carried on by sublessee.

Considering the limitation of the “dispute” as defined by the issues, it is apparent that defendants’ remaining acreage or its value was not “involved in the suit.” The test “is not the amount which may be affected, but the amount actually involved in the suit.” In Re Jackson’s Will, Mo.App., 291 S.W.2d 214, 218(2) ; Emerson Electric Manufacturing Company, et al. v. City of Ferguson, et al., Mo.Sup., 359 S.W.2d 225, 228(2). The “original cost or present value” of defendants remaining property “is not the amount in dispute. The property is not being taken.” Nemours, et al. v. City of Clayton, et al., 351 Mo. 317, 172 S.W.2d 937, 938(4).

An equally compelling reason why this item may not be considered in determining the “amount in dispute” is because its premise depends entirely upon sheer “speculation and conjecture.”

In so far as the record discloses, none of the parties knew whether defendants did or did not have access to Noland Road from the remaining portion of their property or if they did have it, how much they had or where it would be located. As a matter of fact, such information was not even determinable because defendants were still negotiating with the State Highway Department for access. Exceptions had been filed to the award in the condemnation suit and defendant Lawrence Lewis testified that they had “not settled with the Highway Department and what the outcome of that suit and settlement will be will make an entirely different picture in the land and the best use of it.” (cf. State ex rel. State Highway Commission v. Harris, et al., Mo.App., 417 S.W.2d 29, 31(5)).

Depending, as it does, upon the uncertainty of what access defendants will eventually have to Noland Road, the opinion testimony of Lawrence Lewis with respect to such depreciation is “entirely conjectural and does not affirmatively show that any definite monetary amount is in dispute.” Dunbar, et al. v. Board of Zoning Adjustment, et al., Mo.Sup., 380 S.W.2d 442, 445.

It does not “affirmatively appear from the record that the amount actually in dispute exceeds the minimum jurisdictional amount.” This it must. State ex rel. Missouri-Kansas-Texas Railroad Company v. Public Service Commission, et al., supra, 378 S.W.2d 464.

It would have been easier to have disposed of this appeal on its merits. It would have taken much less time and research. It is regrettable, too, that a decision on the merits of the cause must be delayed until it can be determined by another appellate court. However, “under a constitutional government the acts of a court not within the powers prescribed by the organic law are usurpations, and when done by a court of last resort may become a grave menace.” Vordick v. Vordick, 281 Mo. 279, 219 S.W. 591, 592.

For the reasons stated, the cause is transferred to the Kansas City Court of Appeals.

FINCH, P. J., and DONNELLY, J., concur.

EAGER, J., not sitting.


author: STORCKMAN, Judge.

text:
    Jacob and Louise JENSEN, Appellants, v. ESTATE of John Robert McCALL, Deceased, Claude C. Cooper, Executor, Respondent.
    No. 52690.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.
    Motion for Rehearing or to Modify Opinion Denied April 8, 1968.

      J. William Blackford, Blackford & Wil-helmsen, Kansas City, and David D. Lod-wick, Excelsior Springs, for appellants.
    Cornelius Roach III, Donald L. Mason, Jack E. Gant, Mason, Gant & Moran, Kansas City, for respondent.
   STORCKMAN, Judge.

The appellants Jacob and Louise Jensen filed a claim for $20,000 in the Probate Court of Clay County against the Estate of John Robert McCall, deceased. From the briefs it appears that the Estate presented no evidence at the hearing in probate court and judgment was rendered for the claimants from which the Estate appealed. In the circuit court the Estate filed two motions to dismiss the plaintiffs’ demand for its failure to state a claim. The motions were sustained and a judgment was rendered from which the claimants have appealed. The primary issues presented on appeal are whether the written demand states the nature of the claim sufficiently to comply with § 473.380, RSMo 1959, V.A.M. S., whether the contract on which the claim is founded is invalid for lack of mutuality, and whether the action is one in equity for specific performance of which the probate court does not have jurisdiction.

The material parts of the written demand are as follows: “Claim as per contract between John R. McCall and Jacob & Louise Jensen dated May 28, 1963, in amount of $20,000.00 a copy of said contract being attached hereto and made a part hereof $20,-000.00 TOTAL 20,000 00”. An affidavit attached to the claim, executed by both claimants, states: “Jacob Jensen and Louise Jensen, being duly sworn, state that, to the best of their knowledge and belief, they has [sic] given credit to the above estate for all payments and offsets to which it is entitled, and that the balance here claimed is justly due.” The copy of the contract attached to and filed with the claim is as follows:

“THIS AGREEMENT, made and entered into this 28th day of May, 1963, by and between JOHN ROBERT McCALL, first party, and JACOB JENSEN and LOUISE JENSEN, jointly, second parties.

“WHEREAS, the first party is a single man and is residing at this time in the home of second parties at RR 21, Antioch Station, Kansas City, Missouri, Clay County, and

“WHEREAS, it is the intention of the first party to make his home with the second parties upon the conditions hereinafter set out, it is by the parties now agreed as follows:

“In consideration of the sum of One Dollar ($1.00), to the second parties paid by the first party, the receipt of which is hereby acknowledged, the second parties agree that during the life time of the first party, or for that term hereinafter set out, they will furnish a home for the first party in their home in Clay County, Missouri, treating this first party as a member of the family, the meaning of which is that they will furnish his food, laundry, bedclothes, afford him the access to such parts of the house as he may desire except their bedroom, giving him free run of the property, except he is not to have any say in the management of the same, and during which time he shall pay the sum of $5.00 per month during the term of this contract.

“This contract is to last during the life of the first party and in the event the second parties have furnished the above items and services, the first party does agree that upon his death he will have by will provided and here represents he will have available for payment, the sum of Twenty Thousand Dollars ($20,000.00) to said second parties, jointly, as husband and wife, and he represents that he has this same day executed a will leaving said parties the sum of Twenty Thousand Dollars ($20,000.00) conditioned upon their faithful performance of this agreement.

“In the event during the life time of this contract, the first party’s physician shall advise him that for his best care and treatment he should be confined to a hospital or other facility, then that event shall not be a violation of the obligations of the second parties to this contract.

“Either party may cancel this contract at any time they desire, however, in the event the first party cancels this contract, then first party shall be obligated to pay for the time he has been in the home of second parties, at the rate of Eighty Dollars ($80.00) per month.

“IN WITNESS WHEREOF, the parties have hereunto set their hands to three copies of this contract, each of which shall be considered an original, this 28 day of May, 1963. ~

“(Signed) John R. McCall

“ (Signed) Louise Jensen

“(Signed) Jacob M. Tensen

“Subscribed and sworn to before me this 28 day of May, 1963.

“(Signed) Shirley Fuhrman Notary Public

“My comm, expires: 4 — 6-65”

The two motions to dismiss the claim were filed in the circuit court on the same day. Both motions assert that claimants’ demand fails to state a claim. The first motion states three grounds for dismissal directed to alleged deficiencies in the statement as follows : 1. failure to allege “any facts tending to show how or in what manner decedent breached the contract” in violation of § 473.380, RSMo 1959, which requires a probate demand to state the nature of the claim; 2. failure of the claimants to allege as required by Rule 55.18, V.A.M.R., that they faithfully performed their duty to furnish board, room, bedclothing and laundry to the deceased during his lifetime; and 3. failure to allege performance or willingness to perform or a legal excuse for nonperformance. This third ground further asserts that the contract was “mutual and dependent, imposing concurrent obligations upon both parties” so that performance or willingness to perform was a condition precedent to decedent’s obligation to the contract.

The second motion, designated an “ALTERNATE MOTION”, sought dismissal on the ground the demand “upon its face” failed to state a claim “because the contract was so lacking in mutuality as to be invalid and unenforceable, as a matter of law, being one terminable at the will of either party.” The trial court sustained “said motions” and ordered, adjudged, and decreed: “That claimants take naught by their suit against the defendant herein”.

Section 473.380, RSMo 1959, V.A.M.S., regulating the presentation of claims in probate courts, reads in material part as follows: “1. No claim shall be allowed against an estate unless it is in writing, stating the nature and amount thereof, if ascertainable, and is accompanied by an affidavit of the claimant, * * “2. If a claim is founded on a written instrument, the original or a copy thereof with all indorse-ments shall be attached to the claim.”

The claim was founded on a written contract and a copy of it, as set out above, was attached to the claim. The amount of the claim, $20,000, as provided in the contract for full performance by the claimants, was stated and the statutory affidavit was attached stating that the claimants had given credit to the Estate for all payments and offsets and that the balance claimed was justly due. There is no dispute as to these items. The initial question presented is whether the demand states “the nature” of the claim sufficiently to satisfy the legislative intention of § 473.380. In the sense used here, the word “nature” is defined as “the essential character or constitution of something”. Webster’s Third New International Dictionary. Thus, the inquiry is whether the statement and contract filed disclosed the essential character or constitution of the claim against the estate.

The applicable rule of statutory construction was stated in In re Franz’ Estate, Mo., 245 S.W.2d 1, 5[4], as follows: “Clearly the Legislature intended to make it easy for persons not learned in the law to present their demands against estates in the probate court and on appeal in the circuit court without being held to technical formalities and rules. Our courts have steadfastly refused to narrow the construction or restrict the application of the statutes cited.”

A demand filed in probate court is not to be judged by the strict rules of pleading applied to a petition in the circuit court, and it is sufficient if it gives reasonable notice to the legal representative of the estate of the nature and extent of the claim and is sufficiently specific so that a judgment thereon will be res judicata of the obligation on which it is based. Siegel v. Ellis, Mo., 288 S.W.2d 932, 938 [4], These standards of sufficiency are also approved in Bench v. Egan’s Estate, Mo., 363 S.W.2d 547, 549, Malone v. Adams, Mo.App. 362 S.W.2d 95, 97-98 [3], In re Franz’ Estate, Mo., 245 S. W.2d 1, 4[2], In re Thomasson’s Estate, 346 Mo. 911, 144 S.W.2d 79, 81-82[4], and Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610, 611[5], See generally in this regard 34 C.J.S. Executors and Administrators § 417b, p. 194. On appeal to the circuit court, the cause is tried anew without formal pleadings being required. Section 472.250, RSMo 1959, V.A.M.S.; In re Franz’ Estate, Mo., 245 S.W.2d 1, 4[3] ; Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610, 611[5]; Wencker v. Thompson’s Adm’r, 96 Mo.App. 59, 69 S.W. 743, 745[6],

The Estate contends the statement of claim is deficient in that it does not allege any breach of the contract on which the demand is founded and that it fails to state any facts constituting a breach or showing how or in what manner the contract was breached. In support of these contentions, the respondent cites a number of cases dealing with petitions for damages for breach of contract filed in the circuit court prior to the enactment of the code of civil procedure in 1943 and before the adoption of rules of civil procedure by this court. We have examined all of them; they have no possible relevancy to claims filed in the probate court under § 473.380. The respondent’s contention seems to be that a claimant in probate court is obliged at the time he files his demand to elect and plead the precise theory of recovery. In an ordinary civil action a party may be required at the close of the evidence to elect as to whether he will submit his case to the jury on the theory of express contract or the theory of quantum meruit. Boyd v. Margolin, Mo., 421 S.W.2d 761, 768[11], Here we are concerned with the sufficiency of a statement of claim under probate statutes at the pleading stage.

The applicable rule in the present situation is that if it is impossible to say with definiteness whether the claimant in probate court is seeking recovery on an express contract or upon quantum meruit, the claimant will be permitted to recover upon whichever of the two remedies his evidence may warrant. Johnson v. Estate of Girvin, Mo., 414 S.W.2d 245, 248 [2]; Malone v. Adams, Mo.App., 362 S.W.2d 95, 98[4]; In re Hukreda’s Estate, Mo., 172 S.W.2d 824, 826 [5]. Quite certainly at this stage of the proceeding the claimant cannot be required to elect between express contract or quantum meruit as a theory of submission and recovery. The statute simply requires that the written demand disclose the nature of the claim in order to constitute a valid statement of claim. The Estate relies heavily on Bench v. Egan’s Estate, Mo., 363 S.W.2d 547, wherein the statement of the claim was for $20,000 “on account of breach of contract of lease, said contract being that drawn between James & Bessie Egan and Larry S, Bench dated May 6, 1960, and being the same as that agreement referred to in the inventory filed in the James Egan Estate”. In the first place, the lease was not attached to the claim as required by § 473.380 and was only referred to in the inventory. It was not made a part of the claim and the executor could not be charged with knowledge of its terms. The nature of a lease is such that it could be breached in a variety of ways. Without the lease being filed, a specification of its terms and conditions and the manner of the breach claimed would be in order. The Bench case must be limited to its own facts and is not controlling or persuasive on the facts of this case. The contention that the statement of the claim is a nullity in that it fails to state facts constituting a breach or showing how or in what manner the contract was breached is denied.

Next the respondent asserts that the claim was properly dismissed because it did not allege performance by the claimants or any excuse for their nonperformance, or partial performance of their obligations under the contract. Again the respondent has cited a number of cases instituted on formal pleadings in the circuit courts, many of them prior to the new pleading code and the enactment of supreme court rules relative to pleadings. These decisions are not applicable to the issue before us. S.Ct. Rule 55.18, V.A.M.R., provides that: “In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, and when so made, the party pleading the performance or occurrence shall establish on the trial the facts showing such performance or occurrence.” While this rule is not applicable to claims in probate court, it illustrates a relaxation of the stringent rules formerly existing. The more liberal attitude is further demonstrated by Basore v. Allstate Insurance Company, Mo.App., 374 S.W.2d 626, 631 [10], in which it was held that even if more than an allegation of performance and compliance with conditions was required the plaintiff should have been accorded the privilege of amending to conform to the proof rather than having the verdict directed against her. See also Dietrich v. Pulitzer Publishing Company, Mo., 422 S. W.2d 330, 334 [8].

Stating the amount of the claim as required by § 473.380 conveys the information that the claimants are contending that they have completely performed their obligations under the contract. Mr. McCall promised to have available the sum of $20,000 for payment to the claimants jointly “conditioned upon their faithful performance of this agreement.” There is no other theory or basis for them to claim the full amount provided by the contract. The demand for $20,000 could be justified only on the premise that Mr. McCall lived with the claimants the remainder of his life and that the claimants fully performed under the contract. While there is no express declaration of performance in the claim, the term “as per contract” is tantamount to a statement that the claim is made in accordance with or as indicated by the contract. See “per” as defined in Webster’s Third New International Dictionary. The contract is well drawn and is quite definitive and informative. No other reasonable inference can be drawn from the statement of the claim and the attached contract. The statement of claim is not deficient as a demand in probate court for failure to make any other averment of performance. Broz v. Broz, Mo.App., 132 S.W.2d 1039, 1041 [2],

The Missouri decisions are replete with instances where less informative statements have been held to constitute a sufficient claim in probate court. See 13 Mo.Dig., Executors and Administrators, <®=3227(1). For instance in Siegel v. Ellis, Mo., 288 S. W.2d 932, this statement was held to state a claim: “Account stated with decedent representing agreed share of proceeds from sale of household appliances $9,876.00”. After the time for filing claims had expired, the claimant filed an amendment which amplified the earlier statement. The Siegel opinion states that when the claim was amended “without change as to amount or character” the executor was fully apprised as to the essentials of the agreed statement.

Supreme Court Rule 83.24 provides that: “These rules shall be liberally construed to promote justice, to minimize the number of cases disposed of on procedural questions and to facilitate and increase the disposition of cases on their merits.” The same policy should be exhibited toward the statement of claims filed in probate court. See also S.Ct. Rules 41.03, 55.05, 55.26 and 102.01. The demand in this case states a claim in compliance with § 473.380 and is not vulnerable to the attacks made on it as to form and sufficiency. This is not to say that the trial court may not order a claim to be made more definite or certain on motion and a proper showing of need therefor, or that the claimants may not amend the demand voluntarily if the nature of the claim is not changed and its amount is not increased. Siegel v. Ellis, Mo., 288 S.W.2d 932, 938[5] ; Corson v. Waller, 104 Mo.App. 621, 78 S.W. 656, 658[2]; Minor v. Lillard, Mo., 306 S.W.2d 541, 543. See also S.Ct. Rules 55.53 and 55.54.

On the basis of its alternate motion, the respondent Estate asserts the dismissal was proper because the contract upon which the claim was founded was so lacking in mutuality as to be invalid and unenforceable as a matter of law because the contract was terminable at the will of the claimants. This is in contrast to the third paragraph of the first motion which states that “said contract was mutual and dependent, imposing concurrent obligations upon both parties.” The authorities cited by respondent concede that the rule applies only to the extent that the contract remains executory. Want of mutuality, if it exists, is available only to escape such executory performance as may be remaining under the contract and does not prevent enforcement of those portions of the contract that have been performed. Spencer v. General Electric Co., C.A. 8, 243 F.2d 934, 939 [6] ; Martin v. Ray County Coal Co., 288 Mo. 241, 232 S.W. 149, 151 [4], There is no showing that either party exercised his right to terminate. The quantum of performance is not before us. The contention is denied.

The next and final point in respondent’s brief is that the dismissal should be sustained because the contract is enforceable, as such, only by an equitable suit for specific performance, and that damages for breach of the contract could only be recovered in an action on quantum meruit and not in this action at law for damages for breach of a contract so that the probate court, the circuit court and this court acquired no jurisdiction over the subject matter of the claim. The respondent has also filed in this court a motion to dismiss appellants’ “demand” because this court lacks jurisdiction over the subject matter in that the contract is enforceable only by an equitable action for specific performance and that damages “are recoverable only in an action for in-debitatus assumpsit as for the quantum mer-uit.” This is the same, at least in part, as the last point in the brief referred to above. The statement of the contentions appear to be somewhat contradictory and confusing. We have already ruled that the demand states a claim under § 473.380 and that the claimants cannot be required at this time to select the theory of recovery on which they will submit their case. The question remaining is whether a court of equity alone has jurisdiction of the action.

This does not purport to be an equitable action for specific performance. No relief of an equitable nature is requested. The prayer is for a money judgment. It is filed in probate court as a claim against the estate of a decedent. The tendency is to broaden the jurisdiction of probate courts in this area. The 1955 probate code, § 472.030, provides that a probate court has “the same legal and equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters * * Regardless of the origin of this relief and earlier views with respect to it, the law is now settled that such a claim may now be presented to a probate court as a probate matter. Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 879[3] ; Joseph v. Joseph, Mo.App., 164 S.W.2d 145, 149[5]. In addition to other declarations, Mr. McCall assumed an obligation under the contract to have the sum of $20,000 available for payment to the claimants. The probate court had jurisdiction of the claim. The contention raised in this regard is denied.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

All of the Judges concur.