author: WILLIAM M. KIMBERLIN, Special Judge.

text:
    Earl LEWIS et al., Appellants, v. D. E. McCULLOUGH, Purported Executor of the Purported Last Will and Testament of Eddie Lewis, Deceased et al., Respondents.
    No. 52073.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.

      Speer & Herzog, Gordon I. Herzog, St. Louis, for appellants.
    McQuie & Deiter, Montgomery City, for respondents Montgomery County R-II School District, and others.
    Max Oliver, Montgomery City, for respondent D. E. McCullough.
   WILLIAM M. KIMBERLIN, Special Judge.

This is a will contest case. The plaintiffs-contestants, who are the five children and only heirs at law of Eddie Lewis, deceased, are seeking to set aside the will of their father. The will was executed on October 24, 1960. The decedent died on the 3rd day of August, 1963, at the age of 76. The will left $200 to each of the five children and the remainder in trust for the benefit of Leona Conner who was to be paid $60 per month as long as she lived. She also was to have the right to live on the real estate. Upon the happening of certain contingencies, the trust was to terminate and the trustee was to pay over the remainder and residue of the property to the Board of Directors of the R-II School District of Montgomery County, Missouri. It is not necessary for the determination of the issues on this appeal that the provisions of the will be set out in more detail. The parties will be referred to hereafter in this opinion as plaintiffs and defendants.

The defendants are D. E. McCullough, executor and trustee under the will, Leona Conner, and the individual members of the Board of Directors of R-II School District. The petition alleges the unsoundness of mind of Eddie Lewis, decedent, at the time of the execution of the will, and the undue influence asserted over him by Leona Conner. The various defendants, in substance, answered in the form of general denials.

Defendant Leona Conner was not represented by counsel in the trial court nor in this court. Plaintiffs offered no evidence on the issue of undue influence; consequently this issue was abandoned. At the outset of the trial the defendants, who are the proponents of the will, offered evidence and made formal proof of the execution and attestation of the will. The attesting witnesses testified to their long acquaintance with the decedent and gave it as their opinions that he was of sound mind on the date he signed the will. Thereafter, plaintiffs presented evidence. At the conclusion of the plaintiffs’ evidence the trial court sustained the defendants’ motion for a directed verdict and entered judgment decreeing that the paper writing, dated October 24, 1960, signed by Eddie Lewis, and admitted to probate August 14, 1963, was in truth and in fact the last will and testament of the said Eddie Lewis.

Plaintiffs’ motion for a new trial was in due course overruled and this appeal ensued. The plaintiffs on this appeal contend the trial court erred in four respects:

1. The court erred in refusing to admit in evidence plaintiffs’ Exhibit 4 which was the inventory and appraisement of the estate.
2. The court erred in refusing to admit into evidence plaintiffs’ Exhibit 2 which was a copy of a 1936 divorce decree in the case of Sallie Lewis v. Eddie Lewis.
3. The court erred in not accepting plaintiffs’ offer of proof and in not allowing Clark Lewis and Isaac Butler to express an opinion as to whether decedent’s mind was sound at the time of the execution of the will.
4. The court erred in directing a verdict for defendants because plaintiffs had shown by substantial evidence that the decedent lacked testamentary capacity, in that he did not understand the ordinary affairs of life, that he did not know the value and extent of his property, and that he did not understand who were the natural objects Of his bounty and was not able intelligently to weigh and appreciate his natural obligations to them.

Since plaintiffs contend they made a sub-missible case, we will endeavor to state the facts most favorably to plaintiffs. Eddie Lewis, the decedent, at the time of his death on August 3, 1963, was 76 years old, and was residing with Leona Conner on his farm near New Florence, Missouri. He died seized of four tracts of land in Montgomery County. From time to time there were clay-mining operations conducted on his farm. The decedent did not have a formal education and could not read or write as this is generally understood, but he did have the ability to sign his name and to read figures. He did, however, through the years, handle his own business affairs. For a number of years he leased his clay pits and operated the clay mines that were on the real estate. At the time he executed his will he was approximately 73 years of age. He had suffered a stroke in the spring of the year prior to the execution of his will on October 24, 1960. For approximately three months after the stroke he could not speak; however, he could understand what was being said to him. He was able to talk during the summer of 1960 and was able to drive his truck.

Decedent’s dress in 1960 was usually overalls with patches glued over the top of other patches, although he had funds to buy clothes. He also wore a charm on his under clothing. The deceased had been married to three different women and had received divorces from each of them, and he was living at the time of his death with Leona Conner.

The Reverend Isaac Butler testified that he had known Eddie Lewis since 1931 when he came to Missouri to teach school, and that he had lived in the home for two years; that he moved away from New Florence several years prior to 1960 but subsequently moved back to New Florence and visited with Eddie frequently. Upon moving back he visited with Mr. Lewis several times during the summer of 1963; that Eddie would say at one time that he liked his children, and then he would say that they didn’t come around as much as he thought they might; that he (Eddie) thought the children were too wayward from him and didn’t have the proper regard for him; that in the year 1963 he would repeat himself many times and he would also contradict the same statement; that he had occasion to see Eddie Lewis within a month of the date of the execution of the will; that most of his conversation was, “I want to get my business in order; I want to get my business all straightened up”; that he said “he was going to see to it that Mrs. Connor was left $60.00 to take care of her and the home for the rest of her life”; that he also said “he was going to will his children $200.00 apiece”; that he said, “I am going to leave some money to the school”; that in April, 1960, Eddie made remarks about his children that none of them had done what they should have for him as their father; that he felt that he didn’t owe them anything in particular; that Earl Lewis, his son, had done many things for him that he thought were commendable, like a son should, but that Clark Lewis and some of the others, even Mae Belle, had not visited him like they should; that he repeated this conversation each time he saw him; that he saw and conversed with the decedent maybe ten or more times between April 20, 1960, and the year 1963; that after April, 1960, the first time the witness talked to Lewis was about the third Saturday in July, 1963, and that conversation was essentially the same as the other conversations; that he stated he. had $75,000 in cash in the bank. Whereupon, the witness Butler was asked by plaintiffs’ counsel: “Q Do you have an opinion as to whether he had a sound and disposing mind on October 24th, 1960?” To this question the court sustained the objection upon the ground that no foundation had been laid for the opinion. Offer of proof was made to the effect that decedent was not of sound mind at that time and during the entire year of 1960 and until his death in 1963. It is contended by plaintiffs that the trial court erred in this regard which requires a reversal and remand.

Clark Lewis, another son, testified in regard to the family history; that he was in the service and came back to live in the vicinity of New Florence in 1946 and helped his brother in a body shop; he left for a few years and then subsequently returned; that from time to time he would help his father do the chores on the farm; that he was around his father throughout the year 1960. Upon being asked what eccentric behavior on the part of his father he had observed, he stated that he had an appointment at the Veterans’ Administration Hospital in St. Louis and he needed three dollars and some cents to go to St. Louis and asked his father for the money and his father turned him down; that when he would ask his father for money he would turn him down and say, “Honey, honey, honey, honey, no”; that his father would say, “Well, you save the pennies and the dollars will take care of themselves,” and that he couldn’t let him have the money since he hadn’t saved the pennies. Whereupon witness Clark Lewis was asked: “Q Do you have an opinion as to whether or not he had a sound mind in October, 1960?” to which an objection was sustained. The offer of proof which was denied was to the effect that the father had an unsound mind in October, 1960.

Earl Lewis, who is the oldest child, testified that he helped his father in the clay mines and, upon returning to Montgomery County in 1946 from the service, helped his father with farm work; that in 1960 he borrowed $400 from his father and that he still owes it; that his father said he didn’t want any interest; that his father repeated himself in 1960; and that he didn’t know his father had a will until after his death.

Plaintiffs attempted to introduce into evidence through Judge O. A. Kamp, Probate Judge of Montgomery County, plaintiffs’ Exhibit 4 which was the inventory and ap-praisement of the estate. The offer of proof showed the aggregate value of the estate to be $20,762.75. The objection of the defendants was sustained on the ground that it was not competent to prove value. Plaintiffs claim error in the refusal of the trial court to admit the appraisal and inventory into evidence.

As to plaintiffs’ claim of error to the effect that the trial court did not permit lay witnesses Clark Lewis and Isaac Butler to express their opinions as to the unsoundness of mind of the decedent at the time of the execution of the will, the rule relative to permitting lay witnesses to testify as to the unsoundness of mind of a testator has been announced by this court in Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5, 9 [5] [6], wherein the court stated:

“The rule in this state is that a lay witness is not competent to testify that, in the opinion of such witness, a person is of unsound mind or insane, without first relating the facts upon which such opinion is based; and, when the facts have been stated by such lay witness, unless such facts are inconsistent with such person’s sanity, the opinion of such lay witness that the person under consideration was insane or of unsound mind, is not admissible in evidence and may not be received. Clark v. Commerce Trust Co., 333 Mo. 243, 62 S.W.2d 874, 882; Fields v. Luck, 335 Mo. 765, 74 S.W.2d 35, 45; Berkemeier v. Reller, Mo.Sup., 37 S.W.2d 430, 431; Nute v. Fry, supra [341 Mo. 1138, 111 S.W.2d 84]; Stevens v. Meadows, supra [340 Mo. 252, 100 S.W.2d 281]; Platt v. Platt, Mo.Sup., 123 S.W.2d 54, 56; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, 775. * * *
“In this connection it has repeatedly been determined that evidence of sickness, old age, peculiarities, eccentricities in dress or oddities of habit, forgetfulness, inability to recognize friends, feebleness resulting from illness, and other facts or circumstances not inconsistent with the ability to understand the ordinary affairs of life, comprehend the nature and extent of one’s property and the natural objects of his bounty, and which are not inconsistent with sanity, cannot be used as a basis for the opinion testimony of a lay witness that a person is of unsound mind or insane. Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 753; Loehr v. Starke, supra; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860, 864; Nute v. Fry, supra.

The crucial question in the instant case is whether these two witnesses laid a sufficient foundation to permit them to state their opinions as to the lack of testamentary capacity of the decedent. Plaintiffs contend that these witnesses testified to certain eccentricities of the decedent so as to come within the above rule. With this we are unable to agree. While it is true that each of the two witnesses had a long acquaintance with the decedent and each had ample opportunity to observe him, the foundation laid by each of the witnesses as to the eccentricities, if they are in truth and in fact eccentricities, in the judgment of this court was not inconsistent with the decedent having a sound mind. The fact that the decedent repeated his stories and made inconsistent remarks is not inconsistent with soundness of mind. The fact that his son needed three dollars to pay for transportation to the Veterans’ Administration Hospital for treatment and that the decedent refused to give the money to him and said, “Honey, honey, honey, honey, no,” is not inconsistent with a sound mind. Nor are the facts that he glued patches on his overalls and wore a charm inconsistent with a sound mind.

It is the view of this court that none of the facts as testified to by these witnesses are so inconsistent with soundness of mind as to constitute a sufficient foundation to permit the lay witnesses to state their opinions as to the unsoundness of mind of the decedent within the requirements of the rule announced in the Lee case, supra. See also Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, and McGrail v. Rhoades, Mo., 323 S.W.2d 815. The reason for the rule is that the opinion of a lay witness as to the soundness of mind of a person whose mental condition is under investigation has no weight or value unless such opinion is based upon a knowledge of facts inconsistent with sanity. The jury is entitled to- know the facts upon which the witness predicates his opinion, to the end that the jury may properly evaluate the conclusion of the lay witness. Pickett v. Cooper, 354 Mo. 910, 192 S.W.2d 412.

The court has read and analyzed the cases of Sturm v. Routh, Mo., 373 S.W.2d 922, and Machens v. Machens, Mo., 263 S.W.2d 724, cited by plaintiffs, in the light of the facts in this case and finds them unavailing to the plaintiffs. It is our opinion that the trial court’s ruling on this evi-dentiary point was correct.

Plaintiffs’ most serious ground of error is that the trial court erred in holding that they did not make a submissible case for the jury. As previously stated, the defendants made a prima facie case showing due execution and attestation of the will as provided by statute and that the decedent was of sound and disposing mind on October 24, 1960. The burden is then cast upon the plaintiffs to produce substantial evidence to overthrow this prima facie case and to prove that on October 24, 1960, Eddie Lewis did not have sufficient mental capacity to make a will. Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849; Kaechelen v. Barringer, Mo., 19 S.W.2d 1033; Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381.

This being a will contest it is an action at law, so that the weight and credibility of the evidence is for the jury. The plaintiffs’ evidence must be viewed in the light most favorable to plaintiffs. Pickett v. Cooper, supra; Walter v. Alt, supra.

It is our duty on review to accept the plaintiffs’ evidence as true and to give to the plaintiffs the benefit of every inference legitimately to be drawn therefrom.

There are a myriad of cases in this state laying down the essential elements of soundness of mind sufficient to make a valid will. One of these cases is Adams v. Simpson, 208 Mo. 168, 213 S.W.2d 908, 911, wherein it is stated:

“In this state a testator has testamentary capacity when he has mind enough to understand the ordinary affairs of life, the nature and extent of his property, who comprise the objects of his bounty, and the fact that by the instrument he is executing he is giving his property to the persons or •class of persons he names in his will, in the manner in which that instrument recites. Morrow v. Board of Trustees of Park College, 353 Mo. 21, 181 S.W.2d 945; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72, 85, and see also 57 Amer.Juris. § 1262, 1268.”

Another is the more recent case of Sturm v. Routh, supra. In the course of the opinion the following language appears at 373 S.W.2d 1.c. 928:

“It has long been the rule in this state that ‘[t]o have a mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of the persons who were the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessities. He should have active memory enough to retain all these facts in his mind, without the aid of others, long enough to have his will made. Otherwise the law takes from him power to dispose of his property by will. A mind not coming up to that standard is not a testamentary one.’ Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330, 336.”

As to the first requisite that decedent did not understand the ordinary affairs of life, it is true that decedent was approximately 73 years of age at the time of the signing of the will and he had suffered a stroke in the spring of 1960 but, prior to the execution of the will in October of that year, he was up and around the house, was able to talk, and was driving his truck. He had no formal education except that he could sign his name on a check and on contracts and could read figures, but this does not mean that he could not understand the ordinary affairs of life. The evidence was that he repeated himself many times and made inconsistent statements. The transcript does not reveal what these inconsistent statements were, but this again does not tend to prove he did not understand the ordinary affairs of life. The additional fact that he wore a charm and patches on his clothing likewise does not tend to prove the failure to understand what was going on in the world about him.

There is a paucity of evidence in the record to show the nature and extent of the decedent’s property. Witness Butler testified that decedent told him in 1960 and in 1963 that he had $75,000 in the bank. There is no showing as to the amount the decedent actually did have m the bank at or near the time of the execution of the will. This statement, standing alone, does not rise to the dignity of substantial evidence sufficient to prove that decedent did not know the nature and extent of his property at the time of the execution of the will.

The next requisite is that the testator must know the number and names of the persons who were the natural objects of his bounty. Eddie Lewis unquestionably did know the names and number of those persons. One of the plaintiffs’ witnesses testified that decedent had told him he was going to give each of his children $200 and also that he wanted to provide for Leona Conner during her lifetime. That is exactly what the will did. The provisions of the will are wholly consistent with plaintiffs’ evidence regarding the disposition of the property and as to whom the decedent said he would leave his property. Plaintiffs make note of the fact that the name of one of the children was misspelled in that Mae Belle Mickens is referred to in the will as “Mabel” Mickens. This is obviously an error of the scrivener and under the doctrine of idem sonans, this is of no moment. Plaintiffs presented no substantial evidence that decedent did not know the number and names of the individuals who were the natural objects of his bounty.

It is the considered judgment of this court that plaintiffs’ evidence, viewed in its most favorable light and giving to it the benefit of the reasonable inferences to be drawn therefrom, does not constitute substantial evidence to prove want of testamentary capacity in Eddie Lewis on October 24, 1960, and that therefore the trial court ruled correctly in sustaining defendants’ motion for a directed verdict sustaining the will.

As to the plaintiffs’ other assignments of error, assuming, but not deciding, that plaintiffs’ Exhibits 2 and 4 had been received in evidence, neither would have aided plaintiffs’ case and hence it is unnecessary to rule on their admissibility.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by KIMBERLIN, Special J., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Walter DRYDALE and Alice Drydale, Respondents, v. Paul KISER and Anna Kiser, Appellants.
    No. 52261.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.

      E. L. Bartram, Maryville, Alden S. Lance, Savannah, for appellants.
    Joe Beavers, Larry L. Zahnd, Dick Thomson Beavers, Zahnd & Thomson, Maryville, for respondents.
   BARRETT, Commissioner.

This is a suit, brother against sister, to establish a public road from the brother’s house on a south 80 acres across the sister’s north 80 acres and to enjoin the road’s obstruction. The trial court entered a decree adjudging “a legally established public road” and the defendant sister and her husband, now tenants by the entirety of the north 80 acres, have appealed and since the judgment establishes a public road the appeal involves the title to real estate (Const.Mo. Art. 5, Sec. 3, V.A.M.S.) and this court has jurisdiction of the cause. Chapman v. Schearf, Mo.App., 220 S.W.2d 757.

The trial court’s decree is based in part upon a consideration and finding of a public road “by prescription” (Bridle Trail Association v. O’Shanick, Mo.App., 290 S.W.2d 401) but the case was not tried on that theory, and there was in fact no pleading or proof to support a road upon that basis. Cook v. Bolin, Mo.App., 296 S.W.2d 181; Gover v. Cleveland, Mo.App., 299 S.W.2d 239. This, however, was a court-tried case, if not in fact an equity action, the review is anew (Civil Rules 73.01, 83.13, V.A.M.R.) and if there is any supported theory the judgment of necessity should be affirmed. Mueller v. Larison, Mo., 355 S.W.2d 5; Marshall v. Callahan, 241 Mo.App. 363, 229 S.W.2d 730. In addition to their pleadings, plaintiffs’ counsel in his opening statement explicitly informed the court that the action “is brought under the section of the statute, Missouri Revised Statutes (1959), 228.190 [V.A.M.S.], as amended in 1953, and especially that part thereof that provides that all roads that have been used by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads.” Furthermore, as stated, all the proof was upon the theory of the applicability of the statute, “and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads” (RSMo 1959, Supp. § 228.190, V.A.M.S.), and the question for decision is whether the record supports the theory and thus the judgment. In this view “prescriptive easement” or “private way” are not involved, neither is common law or implied dedication an issue, nor under the statute is it material that this road may have had its inception during the possession of a life tenant mother while the appellant sister was yet a remainder-man. 33 Am.Jur. (Life Estates, Remainders) §§ 187-188, pp. 659-663.

George Drydale who died in 1940 owned “three eighties,” 240 acres of land, five miles southwest of Barnard in White Cloud Township in Nodaway County. George and his wife Sylvina and their children lived on the east eighty which came to be known as the “home place” because all the improvements were on that tract. He, together with his sons, farmed all three tracts of land. The other two eighties, lying north and south, were west of the home eighty and before George’s death the plaintiff Walter was living on the south eighty and on its north end a home and improvements had been constructed. The south eighty fronts on a county road- but there was no lane or access from Walter’s home to that road. In those days, prior to 1943, egress and ingress from the south eighty and Walter’s home was along the fence rows and open fields of the “home place” to a county road on the east. George Drydale died in November 1940 and his widow, Sylvina, came into possession of all three eighties, as a life tenant, renting the land to her children, chiefly Walter and Harry. This situation continued until October 2, 1948, when Sylvina died and, under George’s will, the appellant Anna came into possession and title of the unimproved north eighty, Walter the south eighty and Harry the east eighty or the home place. And for the first two years 1949 and 1950, Anna and Paul Kiser, although married in 1927, rented the north eighty to Walter and Harry. Since 1950, however, Anna and Paul have acquired another adjoining eighty and have farmed the north eighty through which the disputed road runs, terminating at an intersecting county road.

The proof shows that during Sylvina’s life tenancy Walter’s means of egress and ingress either across the home place, Harry’s eighty, or across his own land fell into disrepair, became impassable or as to his own eighty nonexistent. In 1943, perhaps at Sylvina’s instigation, a road from Walter’s home across and almost through the middle of Anna’s north eighty was constructed, prior to that time there had been no road through her land. According to the plaintiffs’ proof the road is eighteen to twenty feet wide for its entire length of a half-mile, while according to the defendants’ proof the road was but seven or eight feet wide and was not even a good “cowpath” which ended at Walter’s hog lot. While there was no proof of official board action, Walter has been on the board part of the time, the road was “graded up,” ditched and constructed by White Cloud Township employees using township graders and tractors. A township employee for 36 years testified that in 1943 he using township equipment helped construct the road. Some trees were removed, ditches graded and the road built, this employee said on orders of the township board. The road was almost straight and in 1950 the location of the north end of the road was changed to conform to the terrain and Paul Kiser said that he “guessed” that he did it, “I supervised it.” And on that occasion the grading was done by a township employee using township equipment. The fence was moved and on another occasion Paul bought and he and Walter installed a “tube” in a low place. It is not necessary to detail all the proof, no permission was asked, given or refused, over the years from 1943 to 1965 when Walter and Paul “fell out” over another road matter and Paul fenced and closed the road at both ends, the road was used by school buses, delivery men, workmen and everyone having business with Walter Drydale, his family or his farm. And the road was maintained, snow removed and ditches opened, by township employees using township equipment, no one paid the township for the use of either its employees or its equipment, the employees simply did whatever was required at the time to keep the road open and usable. All the circumstances have not been detailed but the evidence here is unlike Sellers v. Swehla, Mo.App., 253 S.W.2d 847 (and see Sellers v. Swehla, Mo., 261 S.W.2d 26) in which there was a failure of proof as to both public user or public expenditure, or Jenkins v. German, Mo.App., 298 S.W.2d 486, in which there was public use but a failure of proof of expenditure of public funds. The evidence here, indeed all the circumstances are fairly comparable to and are governed by Wann v. Gruner, Mo., 251 S.W.2d 57, State ex rel. Carter County v. Lewis, Mo.App., 294 S.W.2d 954; Leslie v. Mathewson, Mo.App., 257 S.W.2d 394 and State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981. In Leslie v. Mathewson, and particularly in State v. Lewis, the roads were far less than 30 feet wide — “[a]ll public roads in this state which hereafter may be established shall not be less than thirty feet in width,” RSMo 1959, § 229.010, V.A.M.S. The point was not made in those cases as it is here that “no public road can be less than 30 feet in width” but the appellants only cite the statute and that is not in itself sufficient to demonstrate that a public road created under the statute involved here, § 228.190, is invalid merely because its dimensions do not meet the standard. As indicated, the court’s decree is supported upon this theory and upon this record this court cannot make a contrary finding and therefore the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Louis Otto SPIDLE, Appellant.
    No. 51808.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Norman A. Seiner, Special Asst. Atty. Gen., Clayton, for respondent.
    Louis Otto Spidle, pro se.
   SEILER, Judge.

The information charged defendant with the offense of assault with intent to kill with malice. The jury found him guilty of assault with intent to kill without malice and assessed the maximum punishment, five years’ imprisonment. Defendant has appealed.

Because it bears directly on the question discussed below of whether the trial court committed prejudicial error in overruling a challenge for cause of a juror, we point out first the principal witnesses in the case were the arresting trooper on one side and the defendant on the other. Their versions as to whether this was a case of assault or self-defense differed sharply, as shown by the following summary of their testimony:

The trooper, R. L. Owens, testified that while in uniform and driving an official highway patrol automobile, he stopped defendant at night on U.S. highway 36 near St. Joseph, Missouri, by means of his horn and red light, after observing defendant’s car weaving on the highway, crossing the center line. The trooper took defendant back to the patrol car (he testified defendant was staggering) and there told him he was under arrest for careless and imprudent driving. While the two men were seated in the front seat, with Owens writing a traffic ticket, defendant swore at the trooper, lunged at him, swinging his right arm, striking the trooper two hard blows, first on the left ear and then at the junction of the right shoulder and neck, with an open pocketknife with a two-inch blade, penetrating the trooper’s overcoat and shirt and inflicting two stab wounds requiring medical attention. The wound in the neck was two inches long and one and one-half inches deep. The trooper subdued defendant by striking him across the back of the head with his service revolver and kicking him out of the car down into a ditch. Assistance was then obtained by radio.

Defendant’s version was that he was driving in a reasonable manner, on his own side of the highway at all times, not weaving, when the trooper without cause signalled him to stop. The trooper demanded to see his driver’s license, gave no explanation or statement of authority, ordered him out of his car, cursed him, kicked him violently on the ankle, injuring it (defendant said this was why he staggered in going to the patrol car), forced him into the patrol car, told him he was going to take him to jail and then when defendant started to get out of the patrol car, hit him over the head with his gun, stunning defendant “pretty good”, “I was knocked silly” (defendant’s medical evidence was there was a laceration one and one-half inches long and one-quarter inch deep on the back of his head). Defendant got his knife out of his right-hand pocket some way and started fighting. He said he did not in any way intend to kill the trooper and his reason for getting his knife out was to defend himself. He testified he “was getting tired of that stuff” (referring to his being kicked and hit over the head). The fight ended when the trooper kicked him out of the car. Defendant testified the knife produced by the trooper as the one defendant dropped when the trooper hit him with the revolver was not his knife; that he did have a pocketknife which he used to defend himself, but that it was not as big as the knife in evidence and was of a different color.

The only one of defendant’s contentions we need reach is that the trial court erred in overruling his challenge for cause of a prospective juror, who said he had first heard of the case by reading a newspaper article, and whose voir dire interrogation then went as follows (emphasis ours) :

“Q. (By the prosecuting attorney) From reading that article, did you form an opinion as to the guilt or innocence of this defendant ?
“A. In a manner of speaking, yes.
“Q. Do you still have that opinion ?
“A. I don’t know all the facts — I might be prejudiced toward the trooper.
“Q. How do you mean?
“A. The way I read in the paper this man was assaulted and I couldn’t see any reason for the assault.
“Q. Do you feel if you are chosen to sit on this jury, you could set all of that aside and listen to the evidence from the witness stand and base your verdict solely on that evidence ?
“A. Yes.
“Q. You would give both the state and the defendant a fair trial?
“A. Yes sir.
«* * *
“Q. You could set aside all opinions formed prior to this date with reference to the guilt of the defendant?
“A. Yes sir.”

Upon examination by defendant’s counsel immediately following the above, the juror answered as follows:

“Q. (By defendant’s counsel) I believe you said when you read the item you felt that people should not go around assaulting troopers ?
“A. That is true.
“Q. Do you still feel he is guilty of assaulting Trooper Owen?
“A. I guess so — I don’t know the facts.
“Q. Has anything happened to cause you to change your mind?
“A. No.
“Q. You are telling the State you can set this aside and go into the jury room with your mind free and clear of anything you may have read in newspaper items?
“A. I think so.
“Q. Are you sure you can set those aside ?
“A. I can’t say ‘yes’ or ‘no’ until I have heard the facts.”

Thereupon defendant’s counsel challenged the juror for cause and the court took over the questioning as follows:

“THE COURT: Would you convict a man and send him to the penitentiary from what you have read in the paper?
“A. No, sir.
“Q. I want to be sure we understand— if the evidence from the witness stand differed from what you saw in the newspaper, which would you believe?
“A. I would try to believe the truth.
“Q. Suppose there is a difference in the evidence you hear from the witness stand to what you read in the paper?
“A. I believe I would have to take the officer’s word for it.
“Q. Are you going to believe what you have read in the paper, or what you hear here in the courtroom ?
“A. What I hear here.
“Q. Would that cause you any problem?
“A. No sir.”

Thereupon the court overruled the challenge but defendant’s counsel continued examination as follows:

“Q. I still feel you are somewhat undecided on your position in this matter and it is somewhat difficult to overcome.
“A. Not difficult.
it * * *
“Q. You just read there was an assault and you assumed there was no reason for it?
“A. All I can tell you is what I read in the paper.
“Q. From what you read in the paper you assumed the person supposed to have made the assault is guilty?
“A. Yes.”

Defendant’s counsel thereupon renewed his challenge for cause, which was again by the court overruled.

We are not convinced the court exercised sound discretion in overruling the challenge for cause. One’s initial reaction to the voir dire examination above quoted is that the trial court should have sustained the challenge. This feeling persists as the case is studied.

The juror first said that while he did not know all the facts, he might be prejudiced toward the trooper, that the way he read it in the paper the trooper was assaulted and he could not see any reason for the assault. He then said he could put all this aside, base his verdict solely on the evidence and give both sides a fair trial, but he then said he guessed he still felt defendant was guilty of assaulting the trooper, that he did not know the facts, that nothing had happened to cause him to change his mind; that he thought he could set this aside and go into the jury room with his mind free and clear, but he could not say yes or no until he heard the facts.

Then the court took over the questioning and the juror said no, he would not convict a man and send him to the penitentiary from what he read in the paper, but then said that if there were a difference in the evidence heard from the witness stand as to what he read in the paper, he “would have to take the officer’s word for it”, that he would believe what he heard in the courtroom (this would necessarily include the testimony of the trooper). The juror never did disavow his apparent prede-liction for taking the officer’s word for what happened. Defendant’s counsel then expressed the opinion the juror was somewhat undecided on his position and questioned him further. The examination concluded with the juror’s agreeing with counsel that from what the juror read in the paper he assumed the person supposed to have made the assault “is guilty”.

It is difficult to see how the juror, entering upon the trial of the case with the beliefs he had, was a fair and impartial juror. It cannot be said he “stood indifferent between the state and the defendant”, State v. Bauerle, 145 Mo. 1, 46 S.W. 609, 612, any more than the juror in State v. Punshon, 133 Mo. 44, 34 S.W. 25, who said he was in sympathy with the defendant. We have not located a Missouri decision where the question was squarely presented as to whether a juror is disqualified who is strongly disposed to resolve factual issues in accord with the testimony of a particular prosecuting witness, but the situation in reverse was presented in State v. Thursby (Mo.Sup.) 245 S.W.2d 859, where it was held proper to sustain the state’s challenge to two jurors who were of the view that in no circumstances should any weight be given to the testimony of a prostitute or a procurer. And in 50 C.J.S. Juries § 246, p. 1003, it is stated that “A juror is properly excluded who will not accord to the testimony of * * * a particular person the weight to which it is legally entitled.” It follows that a defendant in a criminal case should not have to start out with a juror who feels that in case of a dispute he would have to take the word of the prosecuting witness.

The usual instruction on credibility of the witnesses tells the jury to take into consideration the demeanor, manner on the stand, relationship to the parties, probability of statements of the witnesses, etc., with no authorization to give greater credence to any particular class or person. Defendant’s testimony, for example, is to be weighed by the same rules that govern the testimony of other witnesses. It clearly would not be proper to instruct the jury the trooper’s testimony was entitled to greater weight, yet this was the way the juror in question seemed to feel about it prospectively.

Jurors have been held not qualified where material witnesses for the prosecution are their superior officers, as in State v. Langley, 342 Mo. 447, 116 S.W.2d 38, where deputy sheriffs were on the panel and in State v. Butts, 349 Mo. 213, 159 S.W.2d 790, 140 A.L.R. 1177, where a policeman was on the panel. One aspect of disqualification in such instances is that such jurors could not be expected to weigh the testimony of their superiors impartially. The same considerations are seen in the statutory provisions disqualifying jurors of certain kin. While the trooper here was not the juror’s superior officer or kin, the juror nevertheless seemed disinclined to weigh the trooper’s testimony impartially.

The subject of disqualification for cause of a juror in a criminal case was recently discussed by Finch, J., in State v. DeClue (Mo.Sup.) 400 S.W.2d 50, 57, where he said:

“In the case of Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S.W. 354, 359, this court said that ‘ * * * there is no feature of a trial more important and more necessary to the pure and just administration of the law than that every litigant shall be accorded a fair trial before a jury of his countrymen, who enter upon the trial totally disinterested and wholly unprejudiced.’ That statement was made in a civil case, but certainly it is equally applicable to criminal cases. * * * ”

It is true the juror in the present case, after first giving answers indicating he had formed an opinion unfavorable to defendant and that he might be prejudiced in favor of the trooper, answered the prosecuting attorney and then the court that he could be fair and impartial and put all this aside, that it would not cause him any problem. But as pointed out in the Theobald case, supra, 90 S.W. 1. c. 363, where the juror had admitted he would have a preference toward the testimony of witnesses who were non-employees of the transit company over those who were employees, “Of what avail is it to a litigant, if, when such examination develops the fact that a prejudice or bias exists in the mind of the juror * * * such as will put either party to the necessity of producing stronger or better evidence than would be required if the suit was between persons as to whom the juror had no such bias or prejudice, the court permitted the question of fitness of the juror to be determined by the juror himself, declaring that he would be able to accomplish the almost human impossibility of fairly and impartially deciding the facts, notwithstanding the bias or prejudice he admitted existed in his mind. * * * Or as said in Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751, 759, “ * * * No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one’s fellows is often its father. * * *”

We are of the opinion that under the facts of this particular case, where it was largely the word of the trooper against the word of the defendant as to whether it was assault or self-defense, and where the juror entered the case with the opinion the person committing the assault was guilty and believed he would have to take the word of the officer, a sound exercise of judicial discretion would have dictated that the juror be excused for cause.

The judgment is reversed and the cause remanded.

All concur.


author: PRITCHARD, Commissioner.

text:
    William D. FULTON and Elizabeth Hattie Fulton, Respondents, v. Ruth L. BAILEY, Appellant.
    No. 52076.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    James E. Grier, David E. Kinton, Kansas City, for respondents, Brewer & Myers, Kansas City, of counsel.
    Donald K. Hoel, John T. Martin, Kansas City, for defendant-appellant, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   PRITCHARD, Commissioner.

The initial inquiry here is whether there exists a final, appealable order of the trial court. The action is one for damages for breach of a contract to sell real estate. At the close of the evidence, plaintiffs moved for direction of the verdict as to defendant’s liability under the contract, and for submission to the jury only the question of damages for the breach of the contract. The motion was denied, and all issues of the cause were submitted to the jury. The jury returned a verdict for defendant, and the court entered judgment in accordance with the verdict for defendant.

Plaintiffs timely filed their motion for judgment in accordance with their motion for directed verdict. § 510.290, RSMo 1959, V.A.M.S. Alternatively, a motion for new trial was included. Civil Rule 72.02, V.A.M.R. The transcript shows the following order:

“Thereafter, and on the 28th day of February, 1966, the plaintiffs’ motion to set aside verdict and judgment and to enter judgment for plaintiffs in accordance with their motion for directed verdict at the close of all the evidence, except as to the issue of damages, was by the court sustained.
“If this court’s ruling on the motion for judgment is reversed, then the alternative motion of plaintiffs for new trial shall be by the court overruled.
“WHEREFORE, it is ordered and adjudged by the court that the judgment, heretofore entered herein, that plaintiffs take nothing by this action in their behalf as to the defendant Ruth Bailey be and the same is hereby set aside and for naught held.”

Note that the after-trial order granted plaintiffs’ motion for judgment in accordance with their motion for directed verdict made at the close of the case. The effect is that plaintiffs have judgment upon the issue of liability. Defendant being aggrieved by that order and judgment (and taking away her own judgment) has a right of appeal under § 512.020, RSMo 1959, V.A.M.S., providing that “Any party to a suit aggrieved by any judgment of any trial court in any civil cause * * * may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any final judgment in the case or from any special order after final judgment in the cause; * * (Italics added.) It has been held by this court on several occasions that a party may appeal from an order granting a new trial on the issue of damages only. Page v. Hamilton, Mo., 329 S.W.2d 758, 762 [3] (a new trial awarded defendant upon the issue of damages only, for which defendant [Hamilton] did not ask); Snyder v. St. Louis Public Service Company, Mo., 329 S.W.2d 721, 723 (a new trial awarded defendant upon the issue of liability only); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695 [5], 34 A.L.R.2d 972 (a new trial on the issue of damages awarded defendant, for which neither it nor plaintiff asked; both parties, being aggrieved, could appeal). See also Bubke v. Allied Building Credits, Inc., Mo.App., 380 S.W.2d 516, 518 [1], The orders from which defendant here seeks relief are appealable. The general rule that a judgment to be final and ap-pealable must dispose of all parties and all issues in the case and leave nothing for future determination, Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379, is not here applicable in the face of § 512.020, supra, and cases above cited.

The next consideration is whether the court properly took away defendant’s judgment (based upon a general verdict for her) and entered a judgment for plaintiffs upon the issue of liability under the initial contract. That was a “short-form” real estate contract signed by both parties. Plaintiffs say that the trial court did not err in sustaining their after-trial motion, and entering judgment for them, because the short-form contract is a valid and binding agreement, and parol evidence is not admissible to vary or extend its terms. On the other hand, defendant says that the short-form document is not as a matter of law an enforceable agreement; that it did not contain all essential terms for a contract of sale of real estate; that the parties did not intend the writing sued upon to be the final written memorial of their agreement; and that parol evidence is admissible to show a mistaken omission and to show lack of intention that the writing was to be the final written memorial of their agreement. The issue is thus joined as to whether, on the basis of the short-form contract, plaintiffs were entitled to direction of the verdict upon the issue of defendant’s liability as a matter of law.

The short-form contract sued upon by plaintiffs is dated July 19, 1962, at Kansas City, Missouri, and is addressed to the. Souders Realty Company. That company is authorized to submit an offer on behalf of Ruth L. Bailey (defendant) to purchase the W. D. Fulton property at 5930 Ward Parkway in Kansas City for $78,500, payable: “$8,000.00 earnest money submitted herewith. For the balance of the purchase price the buyers agree to execute their note secured by a First Deed of Trust on the above property and a mortgage on the buyers property at 6837 Brookside (in favor of the sellers) in the amount of $70,500.00 payable as follows: $500.00 or more per month beginning November 1, 1962 and bearing interest of 6% with $20,000.00 becoming due and payable November 1, 1963 and then $500.00 per month or more bearing 6% interest with $25,000.00 becoming due and payable November 1, 1964: and then $500.00 or more per month and bearing 6% interest with entire balance becoming due and payable November 1, 1965. Within three days following acceptance of this offer all parties hereto agree to execute a formal contract according to the price and terms set forth above. This offer shall remain in effect and be irrevocable until: (Date and Hour left blank).” This document was signed by Ruth L. Bailey, and the names of J. T. Bailey and Orpha B. Bailey appear thereon (defendant testified that she signed her parents’ names to the form) and “Accepted July 20, 1962 W. D. Fulton (and) Elizabeth Hattie Fulton his wife.” Payment was stopped on defendant’s $8,000 check, No. 108, dated July 19, 1962, payable to Souders Realty Company, drawn on the Traders National Bank, Kansas City, Missouri.

Ordinarily, in this state a verdict may not be directed for a party having the final burden of proof. Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693 [2], and cases cited, notably the leading case of Cluck v. Abe, 328 Mo. 81, 40 S.W. 2d 558, 559. In the Coleman case the court set forth the exception to the aforesaid rule: “If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontraciicted,. the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass. (Citing cases).”

Here, defendant’s answer to plaintiffs’’ petition for damages admitted that on July 19, 1962, she and an agent of plaintiffs did discuss a proposed offer to purchase the 5930 Ward Parkway property; denied that “Exhibit A” (the alleged short-form contract) attached to plaintiffs’ petition is a contract; and denied each and every other' allegation contained in plaintiffs’ petition, except express admissions in the answer-Neither did counsel for defendant admit the alleged contract as being valid. Plaintiffs contend not only that the short-form contract identified the parties, subject matter, and stated the promises of both plaintiffs and the defendant, the consideration and the price (citing Ray v. Wooster, Mo., 270 S.W.2d 743, 751, for those essential terms) and was an enforceable contract, but that defendant’s own testimony was insufficient to support her defenses.

The question is whether parol evidence is admissible to show that the parties did not intend to be bound by the initial short-form real estate contract. Defendant’s testimony (to which there was no objection) relative to the execution of the short-form contract is that after her first offer was rejected Mrs. Nellie Lee (saleslady for Souders Realty Company, and agent for sellers, the plaintiffs) called her and asked that she come to her apartment, which defendant did. Mrs. Lee informed her that a first offer had been turned down by Mr. Pulton and that a new offer would be for $78,500 with an $8,000 check down. Defendant signed the form, which was on a pad of forms, in blank. The next day, Mrs. Lee called her to tell her that Mr. Fulton had accepted the offer, but that he said it was not legal and there would have to be .a long form drawn. Before the form was filled in, defendant discussed the terms of the agreement with Mrs. Nellie Lee. Part of the terms of the typewritten form, Plaintiffs’ Exhibit 1, is the same as defendant •discussed with Mrs. Lee. Omitted was the provision that the offer was to be contingent upon defendant being able to borrow $8,000 .at the bank, which defendant discussed fully with Mrs. Lee and expressed a “lot of fear” about it. Mrs. Lee told defendant, “ ‘You will have plenty of time. Mrs. Essie Soud-ers will give you all the time you need to get the money from the bank.’ ” The final typewritten offer was to include the contingency of a loan. Defendant first saw .a copy of Plaintiffs’ Exhibit 1, after it had been completed and typed in, on Tuesday, July 24, 1962, after she had been given a copy of the long-form contract (below mentioned) on Monday, the day before. That was the first time defendant knew that the short-form contract did not contain the provision for the contingency of getting the $8,000 loan. It was the discussion between defendant and Mrs. Lee that the short-form contract was to establish the price and then there would be a long-form contract drawn up, for which there would be a discussion with Mr. Fulton. Defendant wanted to discuss the condition of the driveway; the awnings; work that had been done on the foundation; first floor air conditioners; kitchen repairs and the linoleum therein; to examine a rug rolled up in the basement; and whether a recreation room refrigerator would be left there. Mrs. Lee told defendant she could discuss these items with Mr. Fulton at the time they would draw up a long-form contract. Defendant further testified that Plaintiffs’ Exhibit 1 was merely to establish the price, that Mrs. Lee said even the terms didn’t mean anything, and that they could talk to Mr. Fulton.

The “long-form” contract (Defendant’s Exhibit 3) contained the price $78,500; $8,000 earnest money, and the terms of the promissory note were to be the same, except makers were given privilege to pay two or more installments at any time without penalty; an acceleration clause was included at the holder’s option for default in the payment of principal and interest; 10% attorney’s or collection fees were added; buyer accepts the property in its “present” condition; destruction by fire or other casualty gave buyer the option of enforcing the contract or canceling it by written notice within ten days unless seller notified buyer of its intention to repair or restore the premises to the same condition they were in prior to the destruction or damage, with due diligence. Defendant, upon being presented the long-form contract for reading by Mrs. Lee, refused to agree to its terms: she was mostly interested in the “as is” clause; the 10% penalty clause worried her, and the contingency (of her getting the $8,000 loan) was not in there. Defendant was never offered the opportunity of discussing any matters with Mr. Fulton; she never refused to go ahead with the contract; and she was unable to borrow the $8,000 at the bank.

There are several reasons why the trial court erred in setting aside defendant’s verdict and judgment and ordering a new trial on the issue of damages only (and sustaining plaintiffs’ motion for directed verdict on the issue of defendant’s liability on the contract). Under the facts and circumstances, a jury issue was created as to whether the short-form contract embodied all the terms of defendant’s offer. This is essentially to be found in defendant’s testimony that she signed the short-form paper in blank, it being filled in by plaintiffs’ agent, Mrs. Lee. Omitted, as the jury could find, was the matter of the offer being contingent upon, or conditioned upon, the ability of defendant to obtain an $8,000 loan for the down payment. This amounted to a mistake of the scrivener, Mrs. Lee, and that of defendant, a mutual mistake which constitutes a defense to the action brought by plaintiffs upon the short-form contract. It did not embody all of the terms of defendant’s offer if the jury chose to believe the testimony of defendant concerning that lack. She testified further that she discussed the matter of the contingency of getting the loan with Mrs. Lee, upon whom, under the circumstances, she had a right to rely upon to insert into the short-form contract such contingency. Mrs. Lee, agent for plaintiffs, mistakenly omitted the contingency. Defendant mistakenly believed that same contingency was in the contract. The jury here was properly instructed, as a part of defendant’s defense, to find for her if they believed the short form did not contain the terms and conditions the parties intended. “A meeting of the minds, mutual assent, is necessary to the making of a contract. Rexford v. Phillippi, 337 Mo. 389, 84 S.W.2d 628.” Stone v. Stone, Mo., 176 S.W.2d 464, 468 [10, 11]; and there quoted is the here applicable statement of 17 C.J.S. Contracts § 135, p. 867, “Where parties assume to contract, and there is a mistake with reference to any material part of the subject matter, there is no contract, because of the want of mutual assent necessary to create one. In this connection, it has been said that mistake does not so much affect the validity of a contract as it does to prevent its inception, and that mistake may be such as to prevent any real agreement from being formed, so that the apparent contract is void both in law and equity, * * This is not a case where the otherwise “essential” terms to make a valid contract are included therein so as to make applicable plaintiffs’ cited cases of Ray v. Wooster, Mo., 270 S.W. 743; and Hedges v. Hurd, 47 Wash.2d 706, 289 P.2d 706. Mistakenly omitted here, as a distinguishing feature, was that the offer was contingent or conditioned upon defendant getting a loan. Although the general rule is that parol evidence is not admissible to vary a written contract, so as to prove an intention not to be bound, or some intention with respect to identity of the subject matter of such contract, Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820 [6, 7], and cases cited; Tracy v. Union IronWorks Co., 104 Mo. 193, 16 S.W. 203, 204; Sol Abrahams & Son Const. Co. v. Osterholm, Mo.App., 136 S.W.2d 86, 92; Edwards v. Sittner, Mo.App., 213 S.W.2d 652, 656, there is a well-recognized exception to that rule: “Parol evidence is, as a general rule, admissible for the purpose of showing that by reason of a mistake a written instrument does not truly express the intention of the parties, and it may be shown that by error certain matters have been omitted from a writing, * * 32A C.J.S. Evidence § 978, p. 461; Dickson v. Maddox, 330 Mo. 51, 48 S.W.2d 873, 877; Employers’ Indemnity Corporation v. Garrett, 327 Mo. 874, 38 S.W.2d 1049, 1053 [4]; Wolf v. St. Louis Public Service Company, Mo.App., 357 S.W.2d 950, 959 [12, 13]. It was competent, and created a jury issue of contract or no contract, for defendant to testify that by reason of the erroneous omission of her contingent offer she had no intention “other than to establish the price.”

Note also the provision of the claimed short-form contract that the parties would execute a formal contract within three days “according to the price and terms set-forth above.” Defendant’s testimony was that Mr. Fulton advised her, through Mrs. Lee, that he did not regard the “short-form” paper as “legal,” but a formal long-form contract would have to be drawn up. Significantly, and against plaintiffs’ interest on their urged proposition that the short-form paper is a binding contract, is the fact that they procured the long-form proposed contract, with extended terms and conditions (above mentioned) above those of the short form. That long-form contract also contained the so-called “integrated clause.” (“This contract contains the entire agreement between the parties and both parties hereto acknowledge there have been no other representations or agreements, either oral or written, pertaining to this sale.”)

Plaintiffs say that the issue of damages was not decided by the jury. There is no way of knowing whether the jury reached its verdict for defendant upon the theory of no binding contract, or upon the theory of no damages (upon which issue there was evidence) suffered by plaintiffs. Suffice it to say that it was error to enter judgment for plaintiffs, who had the burden of proof, in accordance with their motion for directed verdict made at the close of the case. Cluck v. Abe, supra. The new trial upon the issue of damages only was not granted upon any discretionary ground; the jury had that issue before it under appropriate instructions.

The judgment is reversed and the case is remanded with directions to reinstate the verdict and judgment for defendant.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: SPERRY, Commissioner.

text:
    John DOWNS et al., Plaintiff-Respondents, v. William F. HODGE, and State Farm Mutual Insurance Company, Defendant-Appellant.
    No. 24500.
    Kansas City Court of Appeals. Missouri.
    Feb. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.

      O. W. Watkins, Jr., Strop, Watkins, Roberts & Hale, St. Joseph, for appellant.
    Don Pierce, Downs & Pierce, St. Joseph, for respondents.
   SPERRY, Commissioner.

Plaintiffs are members of the bar of Buchanan County, and are partners engaged in the practice of law in St. Joseph, Missouri. Defendant is engaged in the business of writing casualty and other insurance in Missouri. Plaintiffs sued defendant and a Mr. Hodge for $1,000.00, same being the amount claimed due them for having represented Hodge in a suit by him against a Mr. Fender for personal injuries growing out of an automobile accident. Fender’s liability was insured by defendant. Plaintiffs pleaded their contract with Hodge for a contingent attorney fee of thirty three and one third percent of any recovery obtained against Fender, either by judgment or compromise. They alleged their notification of defendant of their contract and of the eventual compromise settlement of the claim for $3,000.00 and that defendant had paid out the full sum of the above settlement to others than plaintiffs without having “protected” plaintiffs’ claim. Plaintiffs later dismissed as to Hodge and obtained a jury verdict, and judgment thereon, against the insurance company which we will refer to herein as defendant. Defendant appeals.

Defendant urges error based on the court’s failure to sustain its motion for a directed verdict at the close of all of the evidence, on the grounds that plaintiffs failed to make a submissible case of an attorneys’ lien against State Farm Mutual Insurance Company; that attorneys’ liens provided by the statute in Missouri confer no rights against the liability insurer of Mr. Fender.

Defendant also contends that the court erred in excluding the testimony of one of its attorneys regarding a statement made to him by one James Steele, an attorney associated with plaintiffs in the practice of law, who participated with plaintiff Pierce in the trial of the Hodge-Fender damage suit. The statement that Steele is said to have made to defendants’ attorney after the damage suit was tried and the jury found against Hodge, was that plaintiffs were no longer interested in the case and considered themselves well rid of Hodge.

Mr. Downs presented plaintiffs’ case, which rests almost entirely on the testimony of Mr. Pierce and on documents contained in plaintiffs’ files relating to the case of Hodge v. Fender, which case was tried by Mr. Pierce assisted by Steele, and of documents relating to the instant case.

There was evidence to the effect that plaintiffs’ law firm, on April 27th, 1961, was contacted by Mr. Hodge regarding his claim for damages against Mr. Fender when the latter’s automobile “rear ended” the Hodge automobile while it was standing behind a school bus on highway 36, east of St. Joseph; that Mr. Steele, who was an attorney employed on a salary basis by plaintiffs, procured the execution of a contract of legal employment of plaintiffs for their representation of Mr. Hodge on a contingent fee of thirty three and one third percent of any sums recovered for Hodge by plaintiffs whether by settlement or by judgment; that plaintiffs negotiated with defendant for a settlement of the claim but that no settlement was reached; that plaintiff took Hodge’s statement as to the details of the collision; that they compiled a list of medical and other expenses of Hodge, interviewed witnesses, took depositions, obtained medical evidence of the nature and extent of his injuries, took pictures of the scene of the accident, prepared and filed a petition for damages, appeared in court at Chillicothe and “tried” the case. The evidence was to the effect that Mr. Pierce had charge of the case, from its inception and throughout the trial, but that he was assisted by Mr. Steele who prepared the pleadings and assisted in other ways under Mr. Pierce’s direction. It was shown that plaintiffs either paid or became obligated to pay a number of items of expense in connection with the preparation, filing, and trial of the damage suit; that the jury’s verdict was adverse to Hodge; that plaintiffs filed a motion for a new trial; that Mr. Pierce presented the motion and argued it to the court; that Mr. Hodge was present at that hearing; that Hodge had told Mr. Pierce that he would like to consult Mr. Lance, another attorney; that Pierce consented; that Lance was in court when the motion for new trial was argued by Pierce but that he did not actively participate in the proceedings; that the motion was sustained. Plaintiffs investigated the case, filed all pleadings therein, took depositions, procured medical and other testimony, hired local counsel at Chil-licothe, tried the case, filed and argued the motion for new trial and procured an order granting same, all with no assistance from anyone except Mr. Steele, who was their paid employee and who, at all times, acted under their supervision and direction.

Mr. Pierce stated that, prior to the trial, defendant offered $2,500.00 in settlement, which was rejected, and that eventually, it offered $3,000.00, which Hodge refused to accept; that, throughout the court proceedings, defendant was represented by attorneys Cleaveland & Collins; that the court’s letter announcing that a new triaLhad been ordered was addressed to Downs & Pierce and to Mr. Collins, no one else; that Lance had told Pierce that Hodge had consulted him and that Pierce welcomed Lance’s assistance in the case; that Lance wrote, asking for certain papers in the file, which were furnished; that Lance filed a motion for change of venue; that, a short time prior to the date the case was set for trial in Davies County, Lance wrote plaintiffs that he would see them within a few days regarding their participation in the trial of the case; that he next learned that the case had been settled and the entire proceeds had been paid out to Lance and Hodge; that plaintiffs had not been reimbursed for sums they had expended on the case, nor had they received any fee.

On cross examination Mr. Pierce stated that, after the adverse verdict was awarded, he told Hodge that plaintiffs would file motion for a new trial and that it would probably be granted; that he did not tell Hodge that he would have nothing further to do with the case and washed his hands of it; that he did tell him that he made a poor witness; that he did not tell Lance that he was through with the case; that Lance asked for and was given documents from plaintiffs’ files; that Lance informed him that he would confer with plaintiffs about their active participation in the next trial.

Mr. Cleaveland testified for defendant to the effect that Steele assisted Pierce in the trial of the case; that witness never negotiated with Steele, alone, or separately, regarding settlement of the case; that Pierce was in control of the case at all times. Defendant offered to prove by Cleaveland that he had a conversation with Steele, after the new trial was ordered; that Steele stated that plaintiffs no longer represented Hodge, and that they were well rid of him. The court denied the offer on the grounds that, while Steele was an associate of plaintiffs in their office, there was no showing that he had authority to make the statement, and that witness had stated that Pierce was, at all times, in control of the litigation.

The witness testified to the effect that Pierce told him, in the court room at Chil-licothe, in the presence of the Circuit Judge, at the time when the motion for new trial was argued, that plaintiffs no longer represented Hodge, that their employment had been terminated, and that they were well rid of Hodge. He stated that, thereafter, witness dealt with Lance on questions and matters arising in the Hodge case.

On cross examination Cleaveland admitted that after the above conversation occurred, the judge wrote a letter to Downs & Pierce, informing them of his action; that the letter was addressed to Downs & Pierce alone with copies to witness and to Hess & Collins; that no other lawyer’s name (Lance) was mentioned in the letter advising of the court’s action. He admitted that, in February, 1964, (some two years after the jury trial was held) he received a letter from Lance offering to settle the case for $6,500.00 and that copies went to Downs & Pierce and to Hess & Collins; that he had previously offered to settle the case with Pierce for $3,000.00, which offer was refused; that, in February, 1964, he settled the case with Lance for $3,000.00. He stated that he did not know whether plaintiffs had ever withdrawn as “attorneys of record”; that, while he represented Fender in this case, defendant insurance company was his client and paid him for his services.

Pierce was called as a witness by defendant and stated that Steele was employed on salary by plaintiffs during the above period, as attorney. Mr. Hodge testified to the effect that Pierce told him, after the jury trial was concluded, that he was through with the case and washed his hands of it, and that, later, Pierce repeated that statement; that witness told Pierce he would retain Lance as attorney; that, thereafter, he did not talk to Pierce; that he received $3,000.00 in settlement of the case.

Lance testified to the effect that Hodge requested him to represent him; that he rode to Chillicothe with Pierce who argued the motion for new trial; that, two weeks prior to settlement of the case, he sent plaintiffs and Hess & Collins, a copy of a letter written to Cleaveland proposing a settlement for $6,500.00; that he had frequently written Pierce asking for documents from his files; that he wrote Pierce shortly before the new trial was to be had at Gallatin to the effect that he would see him in St. Joseph to discuss Pierce’s participation in the trial; that Pierce answered offering to help in the case. On cross examination it appears that Lance used the pleadings, witnesses and other data compiled and produced by plaintiffs in his handling of the case; that his role was the negotiation of a settlement for $3,000.00; that his activity otherwise was negligible, he having relied almost entirely on the work product of plaintiffs.

The parties agree that there is no Missouri decision directly on the question of whether an attorneys’ lien may be impressed as against a liability insurer under the facts here involved.

The law relating to attorneys’ liens has its roots in the common law, is founded on general principles of justice, does not depend on an express agreement, and is effectuated through the inherent power of courts over relations between attorneys and their clients. In some states there is an express statutory provision for a general retaining lien that supercedes the common law lien. 7 Am.Jur., Attorneys at Law, section 272. A statutory lien is cumulative, rather than exclusive of existing rights or remedies. 7 C.J.S. Attorney and Client, § 207.

Section 484, 130 R.S.Mo.1959, V.A.M.S., provides, in part, that from the commencement of an action or the service of an answer containing a counter claim, an attorney who appears for a party has a lien upon his client’s cause of action or counter claim. Sec. 484.130 R.S.Mo.1959, V.A.M.S., provides that an attorney may contract with his client for a percentage of the recovery obtained in an action, and that, in an action therefor, upon service or notice in writing upon defendant of such agreement, stating his interest in such claim, said agreement shall operate from date of service as a lien upon the claim or cause of action, and upon the proceeds of any settlement thereof for such attorneys’ portion or percentage, and cannot be affected by any settlement between the parties; and any party defendant who shall thereafter settle said claim without first obtaining the written consent of the attorney shall be liable for such attorneys’ lien upon the proceeds of the settlement. The two above sections of our statutes were enacted, Laws, Mo.1901, page 46; Imboden v. Renshaw, 102 Mo. App. 173, 74 S.W. 701, 704. The court there held that, before the enactment of the statute, attorneys had no lien for their services in this state; that the act was not retroactive; that the lien there relied on was prior in date to the taking effect of the statute; and that, therefore, plaintiff attorney had no lien (in that case).

The court also held that, since the written notice was not served on defendant but, instead, was served on his attorney, the notice was not good and the lien never attached. The author of the opinion rests his conclusion upon two cited cases, both of which related to statutes concerning sureties. It is generally conceded that, in surety cases, there must be strict compliance with the governing statutes. However, since the court also held that the statute did not become effective until long after the attorney’s contract was made it was ineffective to establish a lien, all else that was said was obiter and of no legal force. Wait v. Atchison, T. & S. F. Ry. Co., 204 Mo. 491, 103 S.W. 60-67. In the latter case the court held (p. 64), that the attorneys’ lien statute is constitutional, remedial in nature, will be liberally construed, and that an attorney has a lien for his fees which attaches when the suit is filed and service had, whether or not notice in writing has been served. If settlement thereof be made without his knowledge, before or after judgment, his lien is not affected and he may maintain an action to enforce it against him who “deforced” the lien. The court stated that, absent a statutory remedy, “the courts have been most industrious in giving way to a benevolent inclination to seek and apply every remedy in point, even by way of analogy, found in the common law.” While the intervening attorney in that case (Pross T. Cross) was denied the particular relief he sought, nevertheless the court’s declarations of law, as mentioned, remain the law; and the court clearly indicated that a liberal policy should be followed so as to protect attorneys in enforcing their liens.

In Abbott v. Marion Mining Co., 255 Mo. 378, 164 S.W. 563, the court held that section 484.130 is plainly remedial in character, that its language should not be tortured to defeat its purpose, and that it is applicable to contracts arising prior to its enactment. In Brookshire v. Metropolitan Life Ins. Co. (Mo.App.), 56 S.W.2d 817, 819, it was held that the statute is remedial and is to be liberally construed.

In Lawson v. Missouri & Kansas Telephone Co. (Mo.App.), 164 S.W. 138, this court (Trimble, J.), considered a case wherein the executrix of a deceased attorney sued defendant corporation for attorney fees alleged to be due because of services rendered by deceased in a tort action filed by him (and another attorney procured by him), but not brought to judgment until after his death. The judgment had been paid by defendant corporation to another attorney of record in the case, prior to the institution of suit by Lawson’s executrix against defendant corporation.

This suit was based on the provisions of sec. 964, R.S.M.1909 (now sec. 484.130 R.S.Mo.1959). The court said (p. 141):

“[2, 3] By the terms of the statute every attorney who appeals has a lien upon the cause of action which attaches to the judgment and the proceeds thereof in whosesoever hands they may come. Section 946, R.S.Mo.1909; Bishop v. United Railways, 165 Mo.App. 226, loc. cit. 231, 147 S.W. 170. An attorney either at the beginning or during the progress of the case, is within the purpose and protection of the statute. Smith v. Wright, 153 Mo.App. 719, loc. cit. 721, 134 S.W. 683. The lien is on the cause of action from the commencement thereof. Section 964, R.S.Mo.1909; Conkling v. Austin, 111 Mo.App. 292, 86 S.W. 911; Taylor v. St. Louis Transit Co., 198 Mo. 715, loc. cit. 727, 97 S.W. 155; Wait v. Atchison, T. & S. F. R. Co., 204 Mo. 491, loc. cit. 501, 103 S.W. 60. And the sections creating a lien in favor of attorneys are remedial, and should be liberally construed. Wait v. Atchison, T. & S. F. R. Co., 204 Mo. 491, 103 S.W. 60; Bishop v. United Railways, 165 Mo.App. 226, loc. cit. 230, 147 S.W. 170.
“[4] Applying these principles to the case in hand, we see that Lawson, being one of the attorneys who brought the suit for Miss Allen, and who appeared therein for her, was entitled to be compensated for the services performed by him; that his right to compensation for the services he actually rendered is not defeated, even though his services were prematurely terminated by his death; that the services thus actually rendered by him are agreed to be worth $187.50, if his estate is entitled to recover anything. We see, also, that under the statute and authorities hereinabove cited Lawson obtained a lien for said services on the cause of action in that case, and that said lien attached to the judgment obtained therein. Said lien passed to the legal representative of Lawson upon his death. Whitecotton, Adm’x v. St. Louis & H. R. Co., 250 Mo. 624, 157 S.W. 776. No notice of decedent’s lien was necessary after suit was filed, and summons served, since he was one of the attorneys who brought the suit and appeared in said case. This was all the notice required. Whitecotton Adm’x v. St. Louis & H. R. Co., supra, and cases cited.” (emphasis ours).

In Whitecotton v. St. Louis & H. Ry. Co., 250 Mo. 624, 157 S.W. 776, 777, the Supreme Court (Lamm, J.) held that although no notice in writing of the contract was served on defendant at that time, as provided by sec. 965 R.S.Mo.1909 (now sec. 484.140), defendant had notice implied by the bringing of the suit and service of the summons, the attorney for plaintiff having appeared of record therein; and that no further notice was required. This was a personal injury action wherein attorney Whitecotton sued the Railway Company, defendant in the original action, for his fee based on a contingent contract with plaintiff. Without the attorney’s knowledge, the Railway Co. had compromised, settled and dismissed the case, with his client’s consent and paid her the full amount due under the compromise agreement. The plaintiff was permitted to recover the amount due him under his contract, fifty-percent of the amount for which the claim was settled.

However, defendant contends that the lien cannot be impressed as against á liability insurance carrier who is not, in fact, the defendant and who, in this case, now has no funds in its hand due its insured. Defendant admits in its brief that it is Fender’s liability insurer. It says that fact does not make it a defendant and that service of notice of plaintiffs’ contract of employment as attorneys in Hodge’s claim against Fender was ineffective to perfect an attorneys’ lien against either State Farm Mutual Company or its insured. We have held that the filing of the suit by plaintiffs and service of summons on Fender was sufficient notice to Fender of plaintiffs’ lien.

As Fender’s liability insurer, defendant admits in its brief that it was bound to defend Fender by reason of its contract. It was bound to do more than simply defend the suit; it was bound to pay and discharge all sums for which Fender might become legally liable by reason of tort actions growing out of the use and operation of his automobile (within the limits of the insurance coverage). It had the right to, and did, assume control of this litigation. It compromised, settled, and paid the plaintiff for his damages on terms that were satisfactory to defendant. For all purposes connected with this case of Hodge v. Fender, defendant was the alter-ego of Fender. It assumed to and did stand in the shoes of Fender. Defendant was Fender. It, therefore, became and was liable to do, in this case, what Fender was liable to do. Fender was legally liable to discharge plaintiff’s attorney lien in full, thirty three and one third percent of all sums recovered by Hodge. Defendant failed in this duty. The jury has fixed defendant’s liability at $1,000.00, and the court has entered judgment accordingly.

The parties agree that there is no Missouri decision wherein an insurer has been held directly liable for payment of an attorney’s lien.

When this statute was enacted, in 1901, the automobile industry was in its infancy and the automobile casualty insurance business scarcely existed. There was no pressing need for it. Today, sixty seven years later, motor vehicles crowd the traffic lanes of a fast expanding highway system, and motor vehicle liability insurance is an important fact of life. It is essential for the financial protection of almost everyone. The law is ever growing. It never becomes stagnant. Its well established principles must be extended so as to encompass all situations to which they logically apply when sound reason and justice require. This is such a situation.

Defendant claims that the court erred in excluding testimony to the effect that Steele had stated, after the damage suit was tried, that plaintiffs, Downs & Pierce, no longer represented Hodge and were well rid of him. All of the evidence is to the effect that Steele was never a law partner of plaintiffs. Defendant’s attorney in this case stated that Pierce was, at all times, in complete charge and control of the litigation on Hodge’s behalf, and that he at no time dealt with Steele, separately or alone, in connection with any phase of the case. On behalf of plaintiffs it was shown that Steele was their salaried employee and that all acts he performed in the case were done under the direction and control of plaintiffs. He was merely a salaried employee, at most an associate, without authority to act independently so as to bind plaintiffs.

Steele was not an agent of plaintiffs and had no authority to make a binding statement such as is attributed to him, and thereby cut off their lien. Lawson v. Missouri & Kansas Telephone Co., supra, 164 S.W. 141. The statement alleged to have been made was hearsay and was inadmissible for any purpose, under the record as made in this case.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


author: HOWARD, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. COMMONWEALTH DRIVE-IN THEATRES, INC., et al., on Exceptions of J. C. Nichols Company, Appellant.
    No. 24525.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or. Transfer to Supreme Court Denied April 3, 1967.
    Application to Transfer Denied July 10, 1967.

      Reed O. Gentry, Rogers, Field & Gentry, Kansas City, for appellant.
    Robert L. Hyder, Jefferson City, Earl H. Schrader, Jr., Tom J. Helms, Kansas City, for respondent.
   HOWARD, Presiding Judge.

This is a condemnation proceeding brought by the State Highway Commission to acquire right-of-way for the improvement of U. S. Highway 71, in the southern part of Jackson County, Missouri. The land involved consists of two tracts described in paragraphs 28 and 29 (including sub-paragraphs) of the petition. The land described in paragraph 28 consisted of 36 and a fraction acres owned by the J. C. Nichols Company alone. The other tract, which was described in paragraph 29, consisted of approximately 1½ acres located between the north and south lanes of existing U.S. Highway 71, which was owned by the J. C. Nichols Company and was under lease to the Rutledge Oil Company for filling station purposes. The Rutledge Oil Company owned the buildings and improvements. Commissioners were duly appointed and they valued the two tracts separately. They awarded $149,000.00 for the tract described in paragraph 28 to Nichols alone. They awarded $47,000.00 for the tract described in paragraph 29, jointly, to Nichols and Rutledge. These awards were paid into court by the Commission and were drawn down by Nichols alone, as to the tract described in paragraph 28, and by Nichols and Rutledge, jointly, as to the tract described in paragraph 29. Nichols, as the owner of the land involved in both tracts, filed exceptions and the Commission filed its exceptions to the award to Nichols, as to both tracts, and to the award to Rutledge as to the tract described in paragraph 29. Rutledge did not file any exceptions.

It was agreed between Nichols and the Commission that the exceptions as to the two tracts would be tried together and that the jury could render one verdict for its combined valuation of both tracts. Prior to trial the Commission’s exceptions as to Rutledge were dismissed. At the trial, on cross-examination of a valuation witness for Nichols, it was brought out that he valued the improvements on the tract described in paragraph 29, which improvements belonged to Rutledge, at $16,400.00. Although Nichols claimed to have acquired the rights of Rutledge and to be entitled to the benefit of the valuation of their buildings, this was never established at the trial and it was agreed that the valuation testimony as to the tract described in paragraph No. 29 should be reduced accordingly.

The jury rendered its verdict valuing the two tracts together at $188,900.00. This valuation covered only the ownership of the land by Nichols and did not include any valuation for the buildings or leasehold owned and held by Rutledge. On such verdict, the court entered its judgment in favor of Nichols for $188,900.00. Thereafter, and without further entry of any order by the court, a general execution was issued in favor of the Commission and against Nichols in the amount of $7,100.00, being the difference between the jury’s verdict to Nichols for the two tracts of $188,900.00 and the total of the commissioners’ award of $196,000.00 to Nichols and Rutledge for their combined interests in the two tracts. On motion this execution was quashed. Thereafter, the Commission filed a motion for judgment against Nichols in the amount of $7,100.00, representing the difference between the jury’s verdict and the commissioners’ award. In response to this motion the court entered its judgment reciting certain of the foregoing facts and providing that the Commission recover from Nichols the sum of $7,100.00. From such judgment Nichols has duly appealed.

Section 523.045 V.A.M.S. provides, in pertinent part, as follows: “If, within thirty days after the filing of any such commissioners’ report the condemnor shall have paid the amount of any commissioners’ award to the persons named in the petition as owning or claiming any property or rights or to the clerk of the court for them and the amount of such award shall be superseded by a subsequent verdict or amount larger than the award paid, then interest on the amount by which such verdict exceeds the award, at the rate of six per cent per annum from the date of filing the report, shall be added to the amount of the verdict; but if the amount of the award shall be superseded by a subsequent verdict or amount smaller than the award paid, then judgment shall be entered against said persons named to repay to condemnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.” (Emphasis supplied).

This statute is declaratory of certain substantive rights which existed prior thereto and has been held to be merely procedural in providing a simplified procedure for adjusting the rights of the con-demnor and the condemnee, when the jury’s verdict places a different value on the land taken by condemnation than was placed thereon by the award of the commissioners. Thus, when the jury’s verdict is for an amount less than the award of the commissioners it has long been held that the con-demnor, who has paid the amount of the commissioners’ award into court, has a right to the refund of the overpayment. See St. Louis M. & S. E. R. Co. v. Molden-hauer, 130 Mo.App. 243, 109 S.W. 91. Likewise, the right of the landowner to interest on the amount by which the jury’s verdict exceeds the commissioners’ award has been held to be a substantive right independent of this statute. See State ex rel. State Highway Commission v. Ellis, Mo.App., 382 S.W .2d 225 and State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740. These cases point out that the statute merely provides a convenient procedure for effectuating these rights and did not create the rights themselves.

Thus, when the award of the commissioners and the jury’s verdict do not agree in amount, the parties have a right to have the difference adjusted and this statute provides a procedure for making such adjustments. Our question is whether the facts here presented create a right to such an adjustment, which adjustment should be made in the manner described in Section 523.045.

Under this statute, when the jury’s verdict is returned, it is the duty of the court to compare such verdict to the commissioners’ award. If the jury’s verdict is more than the award, the court is authorized by the statute to add interest on the excess, at the rate of six per cent. On the other hand, if the jury’s verdict is less than the commissioners’ award, then the court is directed to enter judgment against the landowner, requiring him to repay the excess received over and above the jury’s verdict, with six per cent interest on such excess.

The commissioners’ award as to the tract described in paragraph 29 was to Nichols and Rutledge jointly. There was no valuation by the commissioners as to the interest of either company separately. This award was drawn down by the two companies jointly. There is nothing in the record to enable us to divide this gross award of $47,000.00 between these two companies. If these two companies did divide this award between themselves, the record does not reveal what division was made. The only hint that we have as to the valuation of the oil company’s interest is in the testimony of one witness for Nichols, who placed a valuation of $16,400.00 thereon. Apparently this testimony did not go to the jury and admittedly the jury did not return its verdict on a basis including any valuation for the Rutledge interest.

Thus we have a situation where the commissioners’ award was paid to two companies, whereas the jury’s verdict referred only to the interest of one company. If Section 523.045 authorizes a judgment against the landowner in such situation, then it would require the court to compare the jury’s verdict on the valuation of the Nichols’ interest alone, to the commissioners’ award on the valuation of the Nichols and the Rutledge interests, combined. Such comparison cannot be made. It is simply a case of apples on the one hand and oranges on the other; the two are not comparable.

In State ex rel. State Highway Commission v. Paul, Mo., 368 S.W.2d 419, our Supreme Court, en banc, was considering the right of the Commission to recover interest on the amount by which the commissioners’ award exceeded the jury’s verdict. It was held that this right was created by Section 523.045. The court pointed out that the factor controlling the right to recover interest was payment. In our present case the total amount of the commissioners’ award as to the tract described in paragraph 29 was not paid to Nichols, instead it was paid to Nichols and Rutledge jointly. Under such circumstances there was no basis on which the trial court could determine whether or not Nichols had been overpaid, and, if so, in what amount. Such determination could only be based on conjecture and speculation; such uncertainty will not support a judgment against Nichols alone.

The statute as above quoted provides for entry of such judgment “against said persons named.” By reference to the preceding provisions of this statute, this phrase refers to “the persons named in the petition as owning or claiming any property or rights” in the lands condemned. Applying this statute to the facts before us, it appears that “the persons named in the petition as owning or claiming any property or rights” in the lands condemned, refers to both Nichols and Rutledge, as to the tract described in paragraph 29 of the petition. This would mean that the court would be required to enter its deficiency judgment against both Nichols and Rutledge, because they were both named as owning or claiming some property or rights in the property described in paragraph 29 of the petition. However, Rutledge did not file any exceptions to the commissioners’ award. The Commission dismissed its exceptions as to Rutledge. Thus, the value of the Rutledge interest in the tract described in paragraph 29 of the petition was not adjudicated and the value thereof was not subject to and did not enter into the jury’s verdict. Rutledge did not participate in the jury trial on the issue of damages, the verdict did not purport to determine any issue as to Rutledge’s interest, and the trial court did not attempt to enter a judgment against Rutledge.

In its brief, the Commission urges that this situation was the result of mistakes made by Nichols and its counsel, and that they cannot now complain thereof. We note that the questions of valuation of the two tracts were consolidated and submitted together and the jury authorized to render one verdict covering both tracts, by stipulation and agreement of the parties. Further, the Commission dismissed its exceptions to the Rutledge award, which it had a perfect right to do, with or without the consent of Nichols. State ex rel. State Highway Commission v. Kimberlin, Mo. App., 267 S.W.2d 51. Thus, in this circumstance, the factual situation presented to the jury was not the result of any fault or mistake by either party. However, the fact remains that the jury’s verdict valued only the interest of one party, i. e., Nichols, whereas the commissioners’ award, as to the tract described in paragraph 29, was paid to and received by two parties, i. e., Nichols and Rutledge. In such circumstances, the court cannot compare the verdict for Nichols alone with the commissioners’ award in the amount of $47,000.00, paid to both Nichols and Rutledge. Since the jury’s verdict gave one combined value for both tracts, the vice as to tract 29 permeates the entire verdict. Therefore, it is impossible for the court to compare the jury’s verdict with the commissioners’ award. Consequently, neither Section 523.045, nor the law under which such rights were recognized prior to the enactment of this section, authorize a judgment against Nichols. There is sinlply no basis upon which it can be determined whether or not an overpayment has occurred.

On the basis of the foregoing, the judgment of the trial court for the Highway Commission and against the J. C. Nichols Company in the amount of $7,100.00, plus interest, is reversed.

All concur.