author: CROSS, Judge.

text:
    Benjamin F. WEINBERG et al., doing business as Hotel Kansas Citian, Plaintiffs-Respondents, v. GLOBE INDEMNITY COMPANY, Defendant-Appellant.
    No. 23400.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      Rodger J. Walsh, Davis, Thomson, Van-Dyke, Fairchild & Walsh, Kansas City, for ■defendant-appellant.
    George V. Aylward, William B. Teasdale, Kansas City, for plaintiffs-respondents.
   CROSS, Judge.

The defendant insurance company appeals from a jury verdict and judgment awarding plaintiff policy holders the sum of $2396.20 on their claim for indemnity of a loss caused by burglary of their business premises and the theft of a sum of money.

The petition contains two counts. In count one plaintiffs sue to recover for their loss under a robbery and theft policy issued by defendant. In the second count plaintiffs sue to recover the amount of an agreed settlement of the loss made by defendant’s adjuster. In answer, defendant admits issuance of the policy and denies all other allegations of the petition. No policy exclusions or exceptions are pleaded in defense. The cause was submitted to the jury on the second count only. The resulting verdict and judgment are in plaintiffs’ favor for the claimed amount of $1492.00, interest in the sum of $255.00, attorneys fees in the amount of $500.00, and a penalty of $149.20 for defendant’s vexatious refusal to pay plaintiffs’ claim — a total sum of $2396.20.

Defendant first assigns that plaintiffs failed to make a submissible case for the jury and that the trial court erred in refusing to direct a verdict for defendant at the close of all the evidence. Defendant’s principal argument is that the evidence did not support the finding that its adjuster made a settlement of the loss or that there was an accord and satisfaction entered into by the parties. The assignment requires our review of the evidence.

Defendant issued the policy on October 7, 1954, in the face amount of $3500.00, for a term of five years, in consideration of a premium paid by plaintiffs. It is written on a form entitled “Paymaster, Messenger and Interior Robbery Policy”, but is limited to a single insuring agreement, which reads as follows:

“III Interior Robbery
“To Indemnify the Insured for all loss of or damage (hereinafter called loss) to Money, Securities and other property, while in the Premises, and for damage to the Premises if the Insured is the owner thereof or is liable for such damage, provided such loss is occasioned by:
“(a) Robbery or Attempt Thereat from a custodian while within the Premises;
“(b) The stealing of such property from within the premises by means of compelling a Custodian or Messenger by violence or threat of violence while outside the Premises to admit a person thereinto or to furnish him with means of ingress into the Premises, provided such loss shall occur before the Premises are next opened for business;
“(c) the stealing of such property from within a show window in the Premises while regularly open for business, by a person who has broken the glass thereof from outside the Premises, or by an accomplice of such person”.

Plaintiffs operate the Hotel Kansas Citian in downtown Kansas City. The auditing and fiscal operations of the hotel, including the counting of money, are carried on in a small “auditor’s” office on the mezzanine floor — a “glassed in” enclosure about the size of a jury box, “glassed in all the way down”, and visible from the lobby. The back wall of the office is the outside wall of the building. It contains two exterior windows. Three employees ordinarily work in the enclosure during business hours: Mr. Alford, the hotel manager; Miss Thornberry, the auditor; and Mrs. Everett, assistant to the auditor.

On August 12, 1959, shortly after noon, the employees locked the door of the glass office and went to lunch. Upon their return around one o’clock they discovered that an exterior glass window had been broken. They found a large rock and shattered glass on the floor, and observed that the broken window had been raised. The hotel’s cash box on the desk was open and the currency it contained had been removed. There was some blood on the desk near the cash box.

Plaintiffs immediately called the police and reported a burglary and notified defendant’s agency office of the theft. Defendant’s adjuster, Earl Jones, arrived at the hotel shortly after one o’clock while the police were conducting their investigation. He saw shattered glass on the floor and the broken window which was “down”. He talked to “the women that were there in the room”. Miss Thornberry told him a burglary had occurred between 12:15 and 1 o’clock. He took some notes, “left a set of proof of loss with the assured”, and took his departure. As he left the hotel he met-Mr. Frank G. Langsford, defendant’s regular adjuster for that particular district. Jones informed Langsford of the burglary and that the police were still “investigating”. Langsford went immediately to the hoteL and up to the auditor’s office. He saw the broken window and glass fragments on the floor. He talked to Mr. Alford, the manager, and gave him blank proofs of loss. Mr. Langsford then conferred with Miss Thorn-berry and Mrs. Everett, assisted them in calculating the loss, observed them counting the money that was not taken — “the heavy, the coins”, and “figured” the amount of loss was $1482.00.

Adjuster Langsford testified that “a day or two later” he returned to the hotel to confer regarding the amount of the loss— “to reaffirm our first calculation”. He asked for and received various money receipts, a page from the hotel’s cash journal, and requested a statement in the form of a letter from Miss Thornberry showing her calculation of the loss. He ran adding machine tapes on various money items and finally “arrived at the loss which corresponded with their claimed loss” — again, in the sum of $1482.00. Langsford testified, “We came to a verbal agreement on the amount of loss” and that “We all said it ivas a burglary loss”.

Plaintiff Weinberg testified that defendant’s adjuster came to the hotel on August 14 (two days after the loss) and prepared the proof of loss which plaintiffs submitted; that the adjuster said “We are ready for the proof of loss to pay you. I’ll draft it up. I can do it right in your office here at the hotel”; that the adjuster dictated the contents of the proof of loss fixing the amount of loss by theft at $1482.00 and property damage in the sum of $10.00, describing the latter as “a broken window” and stating that “a thief broke glass to open window and gain entry to auditor’s office where he took all currency from cash box”. Weinberg executed the proof of loss before a notary on August 14th and delivered it to Langsford.

In the course of his investigation, Langs-ford obtained a copy of the police report. On August 19th he received the letter he had requested of Miss Thornberry explaining her computation of the loss. He returned to the hotel once more “to complete my investigation and verification of the loss”.

Sixteen days after the hotel burglary and after discussing the claim with “our branch claims manager” Langsford issued a draft dated August 26, 1957, payable to plaintiffs in the amount of $1492.00, and reciting that it was “In full settlement of all claims for liability under Policy GBP 259613 for loss which occurred on or about August 12, 1957”. Each of the thirteen payees endorsed the draft below the following statement printed on the back of the draft: “Endorsement of this draft by payee or payees is acknowledgment of full settlement, satisfaction, compromise and discharge of claims and demands of every nature and kind for loss, damage, injury or expense as set forth on the face of this draft”. So endorsed, the draft was deposited in the hotel bank account.

Langsford also required the payees of the draft to sign and acknowledge separate receipts and releases wherein each of them further acknowledged the payment as “ * * * in jun settlement and final discharge of any and all claims arising under or by virtue of policy of insurance No. GBP 259613”. Langsford admitted that when he issued the draft he was fully advised and informed, and in possession of all the facts concerning the occurrence of the loss. There was a copy of the policy in the Kansas City office from which he worked.

Defendant stopped payment on the draft without returning the releases.

In determining the sufficiency of evidence to establish that there was a compromise and settlement, we are mindful of the well-established rule stated in 45 C.J.S. Insurance § 1102, p. 1338, as follows: “The acts of an adjuster within the apparent scope of his authority are binding on the company in the absence of notice to insured of limitations on his powers. Thus, having investigated the circumstances of a loss, an adjuster, on whose powers insured knows of no limitation, may go further and settle the loss, and bind the insurance company which he represents by his action”. And, as held in Curtis v. Indemnity Company of America, 327 Mo. 350, 37 S.W.2d 616, it is not incumbent upon the plaintiff insured to plead and prove that defendant insurance company’s adjuster had authority to settle the loss. That authority may properly be inferred from all the facts and circumstances in evidence.

Defendant attempts to avoid the consequence of its adjuster’s acts on its behalf by the unpleaded affirmative defense that: (1) the loss was caused by burglary; (2) there was no burglary coverage; (3) the only coverage afforded by the policy is for loss from robbery as defined under Condition A, and limited to loss from a forceful taking by violence or fear of violence from a custodian or by other felonious act committed in his presence. Hence, defendant insists, “The mere fact that the adjuster investigated, gave a proof of loss and issued a draft does not make coverage for a burglary loss where there is no burglary policy”.

We concede that the evidence conclusively establishes a burglary loss. When Langsford issued the draft and releases, all the parties and their employees who had knowledge of the facts were in agreement that the theft loss arose by reason of the burglary. It is apparent there was no robbery by force or imposition of fear and that there is no indemnity provided for plaintiffs’ loss by the robbery coverage. However, defendant’s claim that there is no burglary coverage is untenable and directly contrary to the plain terms of the policy. Insuring agreement III (c) covers loss by burglary in explicit language and by these words : “(To indemnify the insured for loss of money, occasioned by) the stealing of such property within a show window in the premises while regularly open for business, by a person who has broken the glass thereof from outside the Premises, or by an accomplice of such person”. Such defined causation of loss cannot be considered as anything other than burglary.

Applying the facts in evidence to the specifications of Insuring agreement III (c), we observe that plaintiffs’ property was stolen while the hotel was open for business, by a person, (or accomplice) who broke the glass of a window in the locked glassed in office, from the outside of the premises. The policy does not define “show window”. But, if the place or window in question is considered to be a “show window”, then there could be no question that defendant’s policy insured the loss sustained, or that the adjuster had authority to settle the claim. It is not our function to interpret those words. It is, however, for us to determine whether plaintiffs, in good faith, were asserting a claim on their policy that had at least an appearance of merit sufficient to raise a “possible doubt” in their favor. If so, their claim was one that the adjuster was authorized to settle, since it was then unliquidated.

The law is well settled that any dispute that can be the subject of an action of colorable merit may be the basis of a compromise. The law favors compromise of doubtful claims, and forbearance may be a sufficient consideration for such compromise, even though the claim upon which it is based should develop to be ill-founded. The fact that, had the parties proceeded to-litigate the claim, one of them would certainly have won, does not destroy the consideration for the compromise, for the consideration is said to be the settlement of the dispute. The merits of the controversy will not be considered after the parties have agreed upon a compromise. Duncan v. Black, Mo.App., 324 S.W.2d 483, and cases cited. Also see Cone v. Equitable Life Insurance Co., Mo.App., 310 S.W.2d 29;. Yancey v. Central Mutual Ins. Ass’n, Mo. App., 77 S.W.2d 149, and cases cited. Duncan v. Black, supra, comprehensively defines the essential nature of a “doubtful”' claim which is subject to binding compromise, as follows:

“But there are certain essentials to-the validity of such consideration. For one thing, and by all authority, the claim upon which the settlement is based must be one made in good faith. Of that there is no dispute in this case. Secondly, the claim must have some-foundation. As to this second consideration we find the courts using-varying language. The claim cannot be ‘utterly baseless.’ It has been said that it must have a ‘tenable ground,’ or a ‘reasonable, tenable ground.’ It must be based on a ‘colorable right,’ or on some ‘legal foundation.’ It must have at least an appearance of right sufficient to raise a ‘possible doubt’ in favor of the party asserting it. This is the Missouri rule.
“It is difficult to reconcile the antin-omous rules and statements which are applied to the ‘doubtful claims’ and to-find the words which will exactly draw the line between the compromise (on the one hand) of an honestly disputed ■claim which has some fair element of ■doubt and is therefore to be regarded as ■consideration and (on the other hand) ■a claim, though honestly made, which is ■so lacking in substance and virility as to be entirely baseless. The Missouri courts have struggled and not yet found apt language. We think we had best leave definitions alone, confident that, as applied to each individual case, the facts will make the thing apparent. But if we should make further effort to distinguish we would say that if the claimant, in good faith, makes a mountain out of a mole hill the claim is ■‘doubtful.’ But if there is no discernible mole hill in the beginning, then the claim has no substance”.

We identify the mole hill in this case as the burglary indemnity clause. That covenant affords tenable and reasonable ground for the claim that plaintiffs’ burglary loss was covered by the policy. At least, the provision is sufficient to raise a possible doubt in favor of plaintiffs. The doubt arises from defendant’s use of the words “show window” in its policy, without definition. If that term were before a reviewing court for interpretation under the facts in this case there would be substantial grounds for a contention that the money was stolen from a “show window”. It is elementary that the terms of an insurance policy will be given a liberal construction so as to uphold it and accomplish the purpose for which it is written rather than a strict, technical construction which may defeat its purpose. 44 C.J.S. Insurance § 297, p. 1166; Grafton v. McGuire, 362 Mo. 882, 245 S.W.2d 69. Missouri cases are legion which hold that if there is doubt or uncertainty as to the meaning of language used in a policy of insurance, and it is fairly susceptible of interpretation in favor of the insured, such meaning will be adopted. In Prichard v. National Protective Insurance Co., 240 Mo.App. 187, 200 S.W.2d 540, this court construed the term “office building” as applied to a two story building occupied on the first floor by a bank. On the second floor there were two offices and considerably more apartments used as living quarters. We there considered the term “office building” as ambiguous and construed its meaning so as to include the described building and to effect insurance coverage. The following is quoted from the Prichard opinion: “We are of opinion that where such a term is used, as in the present case, without qualification, its meaning and application are subject to any fair and reasonable interpretation consistent with the language used and with the facts and circumstances surrounding the parties at the time of the execution of the policy and at the time of the casualty. Under the facts of record, we hold that the Insurance Company is not entitled to any restricted meaning of the term ‘office building’ in the absence of any express limitation or exception, but that said term is one subject to latitude in mean-, ing and that the court is entitled to accord to it a liberal construction in favor of the insured”.

In Henderson v. Massachusetts Bonding & Ins. Co., 337 Mo. 1, 84 S.W.2d 922, the Supreme Court held that “fireworks” were not within a policy exception from liability by reason of “explosives” kept or sold on the premises. In the opinion Judge Hyde wrote: “The insurer has the opportunity to have the language of the contract selected with great care and deliberation by experts and legal advisers acting exclusively in its interests, and it is responsible for any ambiguities found therein. Generalities usually make ambiguities. The insurer can always prevent the necessity of strict construction against it, or any construction at all, by stating the terms of any provision so clearly, definitely, and specifically as to make its meaning so plain that no room is left for construction”.

It would be of significance in determining the meaning of “show window” to consider the circumstances under which the policy was issued. Plaintiff Weinberg, acting for all plaintiffs, procured the insurance policy. He testified that he had been doing business for years and “I always leave it up to my agent who I huy from, who is a very responsible man, who represented the Globe Indemnity, and I told him at the time I wanted to be covered for robbery and other ways, burglary, and so forth”. It would be reasonable to believe that the Globe agent was familiar with the hotel’s business and monetary operations, knew its hazards, and issued a burglary policy appropriate to cover them, in accordance with plaintiff Weinberg’s instructions. Such a view would be consistent with that taken by the Supreme Court in the Henderson (fireworks) case, supra, stated as follows : “The evidence in this case shows that appellant had carried respondents’ liability insurance for several years prior to the issuance of the policy now in dispute; that appellant’s St. Louis underwriter, Buckley, knew what kind of a store it was; and that he was told that it did handle fireworks. Writing the policy with this knowledge, it would seem reasonable to believe that Mr. Buckley did not himself consider that the provision about explosives covered fireworks”.

The parties themselves have already construed the insurance contract by their own conduct under it. They have placed a practical construction upon it by their acts in the nature of a complete settlement and compromise. Such construction as made by the parties is entitled to great, if not controlling weight in determining the proper interpretation of the' contract, and will generally be adopted. 17 C.J.S. Contracts § 325. Since the words “show window” are undefined, and their intended meaning is doubtful, it would be reasonable to interpret them in such manner as to provide indemnity inasmuch as the parties themselves have understandingly acted in-accord to pay and receive indemnity.

It is our conclusion that plaintiffs, in good faith, were asserting an unliquidated claim of substantial legal foundation, based on reasonable, tenable grounds, sufficient to support a valid compromise and settlement between the parties — in the nature of an accord and satisfaction. There is sufficient evidence from which the jury could find that the parties made a binding compromise and settlement of the claim amounting to an accord and satisfaction. We rule that the trial court properly refused defendant’s motion for a directed verdict and that plaintiffs made a submissible case.

Defendant next contends that plaintiffs’ verdict directing Instruction No. 1 is erroneous, because it undertakes to submit plaintiffs’ claim under the policy on the basis of interior robbery but fails to hypothesize facts showing that the theft was a “robbery” as defined by the policy, and because the instruction combined and submitted contradictory theories of recovery, i. e., a claim on the policy and a claim on an agreement to settle. The factual premises set up by defendant in the assignment are incorrect. The instruction submitted no theory of recovery based directly on the policy, (upon plaintiffs’ entitlement as policy holders). The instruction, in substance, told the jury that they should find for plaintiffs if they believed the currency was stolen while the policy was in effect and if they further found that defendant’s adjuster investigated the loss, agreed with plaintiffs to pay same, issued a check as payment, and thereafter stopped payment on the check.

It is patent that the reference to the theft of currency while the policy was in effect, as contained in the instruction, was purposed only for identification of the original claim as a basis for submitting the issue of recovery on the new and substituted claim as arising from the effect of the agreed settlement. The instruction theorized that the policy claim had merged into the settlement claim and furnished the consideration for it. The essence of the instruction, as an hypothesis for recovery, is the required finding that the adjuster agreed upon and made a settlement of the policy claim. Therefore, it was unnecessary and would have been inappropriate to hypothesize any further facts to establish that a robbery had occurred. For the same reasons, we hold that there was no dual, contradictory submission of recovery theories under the instruction.

Defendant also claims that plaintiffs’ Instruction No. 2 is erroneous. Defendant argues that it is not the law (as the instruction states) that an insurance adjuster has power to determine and agree upon the amount of a loss so as to bind the company “when there is no coverage for the loss”. (We would not disagree with defendant’s insistence if in fact there had been no apparent coverage for the loss in this case.) Defendant still argues that the policy insured plaintiffs only against loss from robbery and that it afforded no indemnity for burglary loss. Hence, defendant says, “The adjuster has no authority to change the policy from an interior robbery policy to a burglary policy”. This argument has no foundation in reason or fact. There can be no controversy here over the adjuster’s authority to “change the policy * * * to a burglary policy”, because it was a “burglary policy” from the moment of its origin, as we have already demonstrated in this opinion. Defendant also urges that plaintiffs’ Instruction No. 2 (verdict directing in its nature) should have hypothesized facts to the effect that there was a robbery. What we have said relative to the same complaint, directed against plaintiffs’ Instruction No. 1 finally disposes of defendant’s third point.

Defendant contends that the trial court erred in giving plaintiffs’ Instruction No. 4, which told the jury that “if you * * * find * * * that the defendant paid plaintiffs — $1492.00 in full for all claims ⅜ * * and that the plaintiffs accepted said sum, such settlement operated as an accord and satisfaction of plaintiffs’ claim and plaintiffs would be entitled to recover * * * ”. Defendant first argues that since plaintiffs had not pleaded that the parties had entered into an accord and satisfaction it was error to submit that issue in the instruction. In our opinion plaintiffs so pleaded in their petition by alleging that the parties entered into an agreement to settle plaintiffs’ claim, that releases were taken, that defendant issued a draft in the amount agreed upon, and that thereby the agreement was consummated. It is not necessary that the petition set forth in specific words the legal conclusion that there was accord and satisfaction. It suffices that such conclusion results from the facts pleaded. In Green v. Kansas City, Mo.App., 107 S.W.2d 104, this court said, “It is well settled that an instruction need not be couched in the identical language of the petition provided it submits the issues therein contained”.

Defendant further complains that Instruction No. 4 permitted a finding that there was accord and satisfaction when there was no dispute between the parties. There is no ground for the complaint because the subject of agreement was plaintiffs’ unliquidated claim on their policy. It is the law that either a bona fide dispute or an unliquidated claim will support an accord and satisfaction. 1 C.J.S. Accord and Satisfaction § 32; Laxton v. Retail Hardware Mutual Fire Ins. Co., 226 Mo.App. 954, 48 S.W.2d 144.

Defendant additionally charges that the giving of Instruction No. 4 was error for the alleged reason it submitted the theory of accord and satisfaction when there was no evidence from which the jury could find there had been a satisfaction of plaintiffs' claim. Relying on the general rule that the mere issuance of a check or draft is not payment and that a satisfaction does not occur until payment of the check or draft has actually been received—defendant maintains that its act in stopping payment on the draft “constituted a repudiation of any agreement and there could be no accord and satisfaction”. We cannot so hold, under the' facts in this case, in view of certain principles of law which materially qualify the general rule relied on by defendant.

It is the settled law in Missouri that if the claimant or creditor agrees with the debtor (or tort-feasor) to accept a check as payment and not just as the “means” through which payment may be obtained, the claim or debt is extinguished by the mere acceptance of the check—that is to say that “payment” is effected and “satisfaction” occurs. Authority for the foregoing statement is found in defendant’s own cited cases and text law, to-wit: Griffin v. Priest, Mo.App., 137 S.W.2d 685; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Brent v. Westerman, D.C., 123 F.Supp. 835; 70 C.J.S. Payment § 24, p. 237. As stated in 70 C.J.S., supra, “Where a creditor agrees or consents to receive a check of his debtor as payment, the original indebtedness is thereby extinguished pro tanto, whether or not the check is actually paid by the drawee on presentment, and even though payment thereof is stopped by the maker”.

The evidence before us shows conclusively that the parties expressly agreed in writing that the delivery and acceptance of the draft constituted payment of plaintiffs’ claim as agreed upon in settlement, and that it constituted a “satisfaction” pursuant to an “accord”. Such agreement is evidenced (1) by the words printed on the face of the draft: "in full settlement for all claims for liability”; (2) by plaintiffs’ written endorsement of the draft under the printed legend "Endorsement of this draft by payee or payees is acknowledgment of full settlement, satisfaction, compromise and discharge of all claims and demands of every nature and kind for loss, damage or expense as set forth on the face of this draft”, and (3) by the receipts and releases executed and acknowledged by plaintiffs before a Notary Public, reciting that the draft was received “in full settlement and final discharge of any and all claims * * ’’. We conclude that the evidence contains an abundance of facts to show “payment” and “satisfaction” and to support the giving of Instruction No. 4.

Defendant’s final assignment is that the trial court erred in refusing to give its proffered Instructions No. 9, No. 10 and No. 12. Instruction No. 9 is a definition of the policy terms limiting the authority of defendant’s agents and adjusters. Those considerations are not pertinent to any issue before us. Instruction No. 10 is designated by defendant as “converse” to plaintiffs’ Instruction No. 1. The trial court properly refused Instruction No. 10 because it erroneously permitted the jury to return a verdict for defendant if they found (among other things) that there was no burglary coverage in the policy. We note once more that Condition (c) is an agreement to indemnify plaintiffs for loss by burglary. Instruction No. 12, in its entirety, reads as follows: “The Court instructs the jury that the mere fact an adjuster for the defendant investigated the loss, submitted proofs of loss to the insured and issued a draft does not create burglary coverage where none existed in the first instance”. The foregoing is generally abstract in nature, incomplete as an hypothesis, comments unduly on the evidence, and, contrary to the evidence, assumes that there was no burglary coverage. No error resulted from the trial court’s refusal of the instruction.

The judgment is affirmed.

All concur.

      . The following statement appears in 1 C.J.S. Accord and Satisfaction § 1, p. 464, “While courts and text writers have upon occasion attempted to distinguish between an ‘accord’ and a ‘compromise,’ or between an ‘accord and satisfaction,’ and a ‘compromise and settlement,’ the distinctions are, at best, somewhat shadowy, and of small practical importance, and, indeed, it has been said that the distinctions drawn are of little weight, and that they are usually unsound. The terms are, accordingly, often used interchangeably”. In McGinnis v. Rolf, 289 Mo.App. 54, 189 S.W.2d 456, the court said “However, the distinction between compromise and settlement, and accord and satisfaction, is now regarded by most courts and authorities as slight, and the terms are often used interchangeably”. See Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751, l. c. 754.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    Harold J. McINTYRE, d/b/a H. J. McIntyre Realty Company, (Plaintiff) Appellant, v. Russell E. EMMENEGGER, Donald R. Emmenegger, and Shirley H. Emmenegger, (Defendants) Respondents.
    No. 30909.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.
    Joseph L. Simpson and Schurr & Inman, Clayton, for appellant.
    Detjen & Nangle and John F. Nangle, Clayton, for respondents.
   WOLFE, Judge.

This is an action by a real estate broker for $5,000 which he claims as commission for procuring a purchaser for a tract of land owned by the defendants. A jury having been waived the case was tried to-the court. The trial resulted in a finding and judgment in favor of the defendants. The plaintiff prosecutes this appeal.

The facts of the case appear to be undisputed in most respects. The defendants are Russell E. and Donald R. Emmenegger, who are brothers, and Shirley H. Em-menegger, who is Donald’s wife. They owned a tract of land which they were developing as a subdivision and building' houses thereon. There was a deed of trust against the land to secure a loan of $110,000 owing to the Doerflinger Realty-Company.

The plaintiff was a real estate broker. In November of 1956, Russell Emmenegger told him that they, the defendants, wanted to get out of the building business. They were at that time engaged in a public swimming pool project and needed cash for' this purpose. They told him that they desired to sell the tract of land that they had been developing in order to get their money out of it. They informed McIntyre,, the plaintiff, that they would pay him a commission of $5,000 if he could find a buyer who would pay $178,500 for the property.

McIntyre set about to find a buyer. In the following month he talked about it to a man named Roth, who was in the used car business. Roth said that he was interested in getting into the building and subdivision development business. He later called McIntyre and said that he would like to look at the property.

McIntyre took Roth and a builder named Wallace, who was Roth’s friend, to see the real estate. While there Wallace asked who owned it, and McIntyre told him that it belonged to the Emmeneggers. After showing the tract to Roth and Wallace, McIntyre telephoned the Emmeneggers and told them that he had done so. At the time he phoned Wallace was then talking to Russell Emmenegger about the property, and he said that Roth might be interested in it. Russell Emmenegger told McIntyre in this telephone conversation that he would protect McIntyre’s interest in selling it.

There were several conferences after this between McIntyre and Roth, which culminated in Roth and his wife and the Emmeneggers entering into an option agreement. This agreement gave Roth and his wife an option to buy the property for $178,500, subject to a satisfactory extension of the deed of trust securing the loan of $110,000 owing the Doerflinger Realty Company. The cash to be paid the Em-meneggers was $68,500. There were several other contingencies mentioned in the option contract. The Roths put up $1,000 to be applied as earnest money in the event the sale was consummated.

The plaintiff testified that pending an ■attempt to iron out some of the contingen-tes upon which the sale depended, Roth called and asked him if the Emmeneggers would be interested in a partnership whereby Roth would put up the money and they would do the building. McIntyre relayed the inquiry to Russell Emmenegger and he said that they would not be interested but, according to the plaintiff, he later said that they might consider it if the sale did not go through. Russell Emmenegger testified that he recalled no conversation with McIntyre about a partnership and that they did not want it. He said that the only thing that he talked to McIntyre about was the selling of the property for $178,500.

The Doerflinger Realty Company deed of trust carried with it an agreement that the Doerflinger Realty Company had an exclusive right to sell houses constructed on the property. This was not satisfactory to Roth, and Doerflinger refused to waive the right. There were other contingencies provided in the option agreement that could not be met, so Roth decided not to exercise the option to buy and his $1,000 was returned to him by McIntyre. The plaintiff then tried soliciting others whom he thought might be interested, but after several weeks of this without success his activities ended. The Emmeneggers heard nothing more from McIntyre after this.

Roth had gone to Florida shortly after the contract for an option was terminated, and he was gone for about three months. During this time neither McIntyre nor the Emmeneggers had any communication with him. When Roth returned he brought back an automobile which he thought that Donald Emmenegger would be interested in buying. Roth drove the car to the Em-meneggers’ office and did sell the car to Donald. While they were all in the office he asked if they had disposed of the real estate, and they all drove out to look at it.

They discussed the development of the subdivision and agreed with Roth to form a corporation for that purpose. This agreement was consummated by organizing the Emmenegger-Roth Development Corporation. By the contract entered into between Roth and the Emmeneggers it was agreed that Emmenegger would sell the land to the corporation for $48,515.14, and that Roth would put into the corporation $48,-500 in cash. The corporation assumed the debts against the tract, including the $110,000 deed of trust. Out of the $48,-515.14 which the corporation was to pay the Emmeneggers for the land, they agreed to leave $4,800 in the corporation for the purchase of corporate stock, and the Em-meneggers also agreed to lend to the corporation $15,200. They actually received in cash from the transaction the sum of $28,500 and they agreed to devote their full time to the development of the subdivision.

When McIntyre heard that the property had been sold to the Emmenegger-Roth Development Corporation, he made demand for $5,000 commission from the Emmeneg-gers but they declined to pay it, and this suit followed.

The trial court found that both parties had considered the agency contract at an end for some time before the sale to the Emmenegger-Roth Development Corporation, and further found that McIntyre was not the procuring cause of the sale.

The plaintiff here contends that the court erred in holding for the defendants for the reason that the plaintiff did interest Roth in the purchase of the property, and that by reason of this, he, the agent, was the procuring cause of the subsequent sale to the corporation which Roth and the Emmeneggers organized. As to the sale price to the corporation he asserts that the gross sales price was $179,537.51. He arrives at this figure by taking into consideration the amount of certain obligations that the corporation agreed to assume plus the sum of $48,500 cash put into the venture by the Roths. We are cited to Taussig, Day & Co. v. Poleman, 360 Mo. 470, 228 S.W.2d 722; Axsom v. Thompson, 239 Mo.App. 732, 197 S.W.2d 326; McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75; Allen v. Meredith, Mo.App., 32 S.W.2d 103.

These cases state the general proposition that if property placed in the hands of a broker, for sale at a certain price or upon certain terms, is sold through the broker as a procuring cause, he is entitled to a commission on the sale even though the negotiations are conducted through the owner who, in order to make a sale, accepts a price less than that stipulated or upon different terms than those the broker was authorized to accept.

In the case of Axsom v. Thompson, supra, the seller attempted to defraud the agent by selling a farm through a straw party to a prospective buyer produced by the agent, and to thus avoid the payment of the agent’s commission. We should state here that there was never any issue in this case that the seller acted in bad faith. It was admitted that there was no such contention and none was pleaded.

We stated in Rogers v. McCune, Mo.App., 283 S.W.2d 872:

“ * * * where a special contract exists, as where the agent agrees to sell for a net price to his principal, the agent cannot, in the absence of bad faith on the part of the seller, or a waiver of the right to insist upon the strict terms of the agreement, recover any commission unless he sells for an amount in excess of the price authorized.”

It was understood by the plaintiff, and he so testified, that the defendants wanted to be rid of the property and to get out of it $63,000 net to them. The sale that they ultimately consummated with the corporation certainly did not accomplish this. The only cash that they received was $28,-500, and to get this they were obliged to agree to continue the supervision of the development. In view of this it cannot be said that the property sold for the same price or for more than that which they authorized McIntyre to sell it for. It must be held that this was not within the special contract that the Emmeneggers had with McIntyre.

There is also no question about the fact that McIntyre had discontinued all effort to induce Roth to buy, and in fact he had discontinued all effort to sell the property at the time the owner sold it to the corporation. The Supreme Court said, in Taylor v. Vestal, Mo., 304 S.W.2d 820, l. c. 823:

“If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or if, after procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular individual and all negotiations in that direction are completely broken off and terminated, he will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed.”

Both Roth and his wife, the Emmeneg-gers, and McIntyre had given up any idea of the Roths purchasing the real estate long before it was sold to the Emmenegger-Roth Corporation.

The court properly held that McIntyre was not the procuring and inducing cause of the sale. In Rogers v. McCune, supra, we stated:

“For an agent to recover a commission upon the sale of property of his principal it is not sufficient that his act is one of a chain of causes producing the contract — it must be the procuring and inducing cause. The terms ‘procuring cause’ and ‘inducing cause’ refer to the cause which originates a series of events which without break of continuity result in the accomplishment of the object of the employment of the agent.”

Considering all of the evidence, it is clear that if any one person could be deemed the procuring cause of the ultimate sale to the corporation, it was Roth. He did not desire to buy the property himself, and he did not buy it, but he was instrumental in creating the corporation which bought it, and this was a transaction entirely new and wholly beyond the Emmeneggers’ contract with McIntyre. Neither was there any “series of events * * * without break” from the time of Roth’s first interest in buying to the time of the sale to the corporation.

The judgment of the Circuit Court is affirmed.

RUDDY, Acting P. J., and SAM C. BLAIR, Special Judge, concur.

ANDERSON, J., not participating.


author: BRADY, Commissioner.

text:
    Murray BETTINGER, Plaintiff-Appellant, v. Marian BETTINGER, Defendant-Respondent.
    No. 30788.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied April 12, 1962.

      Gerald A. Rimmel, Susman, Wilier, Rim-mel & Elbert, St. Louis, for appellant.
    Hubert I. Binowitz, Carter, Bull & Baer, St. Louis, of counsel, for respondent.
   BRADY, Commissioner.

This case comes to the writer on reassignment. It was submitted during our docket for October, 1961. The parties will be referred to by their designation in the trial court. The plaintiff was granted a divorce from the defendant on March 19, 1958. The defendant did not contest the divorce action at which a stipulation covering waiver of alimony, payment of attorney’s fees and other matters was filed. This stipulation also provided for the plaintiff to pay $30 a week for the support and maintenance of the minor child born of this marriage and the trial court provided for that sum in its decree.

In October of 1959 the defendant filed her motion to modify as to the amount of child support. Trial was had in June of 1960. The defendant alleged that the child was then nine and a half years of age, and that “Since the entry of said decree, the circumstances pertaining to the support, maintenance, and education of said children (sic), have materially changed in such manner and degree as to make the foregoing provisions for support unreasonable, unjust and wholly inadequate. At the same time defendant states that the net worth, income and ability of plaintiff to provide suitably for said minor child has substantially increased.” She prayed for modification to provide adequate support, maintenance and education without setting out any specified amount, for allowance of her attorney’s fees, and for her travel, food and accommodation incidental to her attendance at the hearing on the motion. The trial court sustained the motion to modify and entered its order modifying the decree to provide for $75 per week for child support and maintenance, and also allowed $500 to the defendant as attorney’s fees and $175 as traveling expenses.

The plaintiff contends that the trial court erred in sustaining the motion to modify for the reason that the defendant failed to prove any change of condition and, in the alternative, that $75 was excessive; that the trial court erred in awarding attorney’s fees and travel expenses at all and, in the alternative, that the sum awarded was excessive in each category.

The facts disclosed by the transcript are that the child, Linda Jill, was ten years old at the date of the hearing of the motion to modify and lived with her mother in New York City; that Linda Jill was a fifth grade student at Lake Grove School, a private boarding school which she had attended since she was five and a half years old; that the child is home two week-ends a month and on holidays; that the tuition cost is $1,250 for a ten-month school year plus laundry, bus fare and other incidentals of about $50 a month; and that Linda has been attending a summer camp operated by the school at a cost of $475 for the two-month term. The other testimony with regard to educational facilities was that there is a public school two blocks from the defendant’s apartment and Linda Jill attended that school briefly, but the defendant found it unsatisfactory for the only stated reason that she could not afford to hire a housekeeper, the cost of one being $60 a week as wages, and $40 a week for food. In the defendant’s opinion this would be necessary, as the defendant works 5 days a week, from 8:30 A.M. to 6:00 P.M., and Linda Jill would be alone each week day from 3 :00 P.M. to 6:00 P.M.; and that defendant is also required to be away from the city three or four times a year for more than a day at a time. The defendant testified that she would not let her daughter walk these two blocks to public school and home again, although Linda Jill is a child of normal intelligence and in good health, stating that “No good mother would.” It further appeared that the defendant’s apartment is in the center of Manhattan. The further testimony by the defendant concerning educational expenses was that in September of 1960, Linda Jill would enter the 6th grade and the tuition would rise to $150 a month, but that Linda Jill had expressed some dissatisfaction with the school, and with the defendant had located the Tuxedo Park School which she desired to attend and at which the tuition will be $190 a month together with additional costs of $50 term fee and $50 to $100 for expenses; that there were other schools with higher costs than this, but this was the best school at that cost; and that this school had no summer camp connected with it so that “I will have to send her to a camp for the summer.”

On this issue, the plaintiff’s testimony was that about two years before the hearing he had investigated private day schools in Manhattan, and the costs were “About Seventy to Seventy-Five Dollars a month”, the school hours were from 8:30 A.M. until 4:00 or 4:30 P.M., and there was a charge of $12 a month for transportation, as they “pick up and deliver the student”; that he could not remember the names of the schools; that at that time he had investigated three such schools and found practically no variance in the tuition from the first to eighth grades; that the cost included lunches; that there were no extra-curricular activities in these schools and when asked if he would like Linda Jill to participate in such activities answered that he would. While the plaintiff had testified on direct examination that these schools he investigated were private day schools, upon cross-examination when asked what type of grade schools these were, he answered, “These were regular, elementary school grades. Up until the eighth grade. * * * I am talking about a regular, public school.”

The evidence upon the question of other costs for the support and maintenance of Linda Jill was, on the part of the defendant, that the apartment rent was $150 per month for a living room, two bedrooms and a kitchen; that the defendant allocated one-fourth of that to Linda Jill; that a full time housekeeper was employed on weekends and holidays when Linda Jill was at home; that the defendant had been expending $4,300 annually for Linda Jill’s schooling and other expenses, and that if she sent her to the Tuxedo Park School, this amount would rise to $4,800 a year. It appears from the interrogatories and answers thereto which were introduced into evidence that during the years of 1957, 1958 and 1959, the defendant spent approximately $3,975 annually for the support and maintenance of Linda Jill.

Upon the issue of the plaintiff’s increased means, the testimony was that he was employed by the Helbros Watch Company, traveling for that company in Kansas, Nebraska, Iowa and Missouri; that in 1957, the year before the original divorce decree was granted, the plaintiff earned net commissions of $16,927.11 and actually was paid $9,400.00; in 1958 his net commissions were $20,700.41 and he was paid $20,527.11; in 1959 he earned net commissions of $33,-670.12 and was paid $27,250.00; that the balance over and above the amounts actually paid him was carried over each year and paid in eight monthly installments beginning in April of each following year. At the end of December, 1959, the last complete year before the year in which the motion to modify was heard, there was $14,120.53 due plaintiff, which the Helbros Watch Company was to pay him in eight installments in 1960 upon the condition that he did not terminate his employment with the company (and the plaintiff testified he had no intention of doing so) and that he continued to sell at a rate which would at least result in earnings equal to his drawing account. It further appears that the plaintiff received an advance drawing account of $250 per week, and he estimated his gross income before business deductions and taxes for 1960 as $27,120.53. In 1959 his traveling and business expenses were $10,113.45, and $1>000 loss carry-over deduction left him an adjusted gross income for that year of $16,136.55; on this sum he paid federal income taxes of $3,716.71 and state income taxes of $303.92 and he testified his net income for 1959 was $12,115.92. The plaintiff testified that traveling and business expenses had increased 10% to 12% in 1960 but his volume of sales when compared to the corresponding 1959 period was down 30% and he doubted if he would equal the 1959 volume on a yearly basis, although he testified that during the first months of the year — the hearing was held in June — sales are always down and that he has always exceeded his drawing account during his employment; that even if his business dropped off 30% for the entire year it would not drop down to the 1958 level when his net commissions amounted to $20,700.41; that his entertainment expenses had sharply increased over the $1,500 he deducted for this purpose in 1959 but how much the increase would be was not given; and that his company wanted him to buy a Cadillac and he had done so with a resulting rise in automobile expense since 95% of his travel time was by automobile, but how much greater his expenses from this source would be was not stated, and in any event 80% of automobile expenses are deducted as business expense on his income tax return.

At the time of trial, plaintiff had $397 in his checking account, $568.78 in a savings account, his automobile which had cost him $6,400, and the balance due him by Helbros Watch Company as of December 31, 1959 of $14,120.53 which would be paid him in eight monthly installments subject to the conditions before stated. The transcript discloses that he owed $180 in payroll taxes arising out of an unsuccessful business venture in New York, hospital bills in the amount of $383.14, doctor bill in the amount of $82, $1,900 in personal loans, $236 for his automobile insurance, current bills in the sum of $300, and attorney’s fees due the defendant’s attorney for allowance in the original divorce action in the amount of $350. The plaintiff’s rent was $235 per month, his expenses for meals while at home averaged $35 to $40 per week. His fixed expenses consisted of the $30 per week he was paying under the original decree for the support and maintenance of Linda Jill, and $25 a week alimony he was paying to his second wife, and $3 to $4 per month for medicines for his heart condition. It further appeared that the plaintiff saw the doctor approximately five or six times the preceding year and that these visits cost “Five Dollars, or Fifteen Dollars for a complete examination” although the total amount of medical expense for the preceding year was not stated, and neither were other living expenses such as laundry and dry cleaning which he testified were necessary.

The plaintiff’s assets at the date of the hearing were $965.78 in the bank in checking and savings accounts, and a 1960 automobile which cost $6,400 at purchase. Against this, his debts were then approximately $3,431.14.

With respect to the issue of the allowance to the defendant of $175 for travel expenses and $500 for attorney’s fees, the transcript discloses that defendant had worked in New York City as a fashion co-ordinator for the last eight years at a net take-home pay of $120 to $125 per week, and an average annual income of $7,800 to $8,000; that in 1959 her adjusted gross income was $7,950, on which she paid income tax of $707.70; and that at time of trial she had a balance in the bank of $100 and she had no other funds to pay her attorney’s fees or expenses in connection with the hearing. Defendant testified she flew to St. Louis from New York for the hearing at a round-trip cost of $133, that her hotel bill will be $24, and her meals would be from $10 to $15. The transcript further discloses that the defendant’s attorney testified that he had represented the defendant since June of 1959, and that in performance of legal services for her, his research and other work had comprised 33¼ hours, exclusive of time spent in actual trial of the motion to modify. He estimated the reasonable value of his services would be $1,500. On cross-examination the attorney testified he had spent two and a half hours on research, one and a half hours examining court files, and ten hours entirely on correspondence; that he estimated the value of his services on the basis of approximately $35 per hour but admitted that this was not his standard charge, which he testified would be $30 per hour. The defendant’s attorney further stated there was nothing unusual about this particular case.

It would serve no useful purpose to add to the already large body of case law on the points by here repeating the rules of appellate review for cases such as this. They are too well known, and the same is true of the defendant’s burden on the motion to modify. We think the evidence shows that the defendant met her burden of showing changed circumstances. In reaching that conclusion, we are not relying upon any one fact but rather upon the overall picture of change in the needs of the child and in the income of the plaintiff. Among the facts to be considered in the issue of the child’s changed circumstances is the increase in school tuition. We cannot agree with plaintiff that defendant is unreasonable to arrange a private school education for Linda Jill. The evidence is that the girl would be alone for a period of time each day if she went to public school, would have to walk to and from public school in the middle of Manhattan, and the defendant would have to hire a housekeeper for those occasions when she was required by her work to be out of town. While alone each of these things might not justify a private school, when added together and considered with the increase in her father’s income, we cannot say that the defendant, the custodial parent, was so unreasonable in arranging for private school education as to require our intervention. The same is true of the change in schools. Accordingly, there is proof that school fees will change from $1,250 each year to about $1,900 a year plus some additional expense not specifically stated for a different summer camp and certain other school fees.

While increase in the plaintiff’s income and earning capacity alone will not necessarily justify an increase, such factors are important elements to be considered in equitably balancing needs with income and station in life. Adkins v. Adkins, Mo.App., 325 S.W.2d 364 at loc. cit. [8], page 367. The pattern of the plaintiff’s earning power is one of steadily increasing growth. Moreover, his gross income in the year before the original award was made was $16,927.11, while in the last complete year before the hearing on the motion it had increased to $33,670.12. It is unnecessary to go into the somewhat complicated picture of plaintiff’s deductions, except to point out that plaintiff has always been successful in selling more than his drawing account in the past, and that while he testified business was down from the previous year for the period prior to the hearing, he also testified that business was always down for this period of the year and that even if his business was off 30% for the entire year, his net commissions would not drop down to the 1958 figure of $20,700.41. He testified that his traveling and business expenses had increased 10% to 12% in 1960 over 1959, when these expenses were $10,113.45 plus $1,000 for a possible loss carry-over deduction. This amounts to $1,333.61 additional expense $11,113.45 at 12%) at his highest figures. Accordingly, the evidence is that plaintiff’s income could reasonably be expected to be $19,366.39 or above. This is a substantial increase over his income when the original award was made. The plaintiff urges that we can only consider his actual drawing account of $250 per week to determine income. No cases are cited for such a limitation of our consideration of the plaintiff’s financial status, and we know of none. Not only was the trial court entitled to consider the net commission figure, but was also entitled to take into account the fact that the plaintiff had $14,120.53 which would be paid to him in eight installments during the year in which the hearing was held. His past record with his employer entitled the trial court to reasonably infer that the conditions upon which these payments were dependent would be met. In any event if this inference be disproved by the facts, the plaintiff has a ready remedy. It follows that in the last full year before this hearing, the plaintiff at the figures most favorable to him had a net income after taxes of $12,115.92, plus $173.30 paid him in that year that he did not get in 1958 fur a total of $12,289.22, or approximately $1,020 a month. For 1960 his gross income before taxes can reasonably be expected not to be below the 1958 figure of $20,700 plus $14,120.53, or $34,820.53 less $12,447.06 expenses (1959 expenses plus 12% increase) or $22,373,47, or approximately $1,864.45 a month.

We hold that the increased expense of the child, caused in the main by additional educational expenses, together with the substantial increase in the plaintiff’s income, constitute sufficient change of condition so that it cannot be said that the trial court abused its discretion in decreeing modification. That is the extent of our review of these matters. Bradshaw v. Bradshaw, Mo.App., 317 S.W.2d 21, at loc. cit. [3] page 22; Hawkins v. Hawkins, Mo.App., 250 S.W.2d 817, at loc. cit. [3] page 819.

In considering the amount of the modification, the transcript discloses the plaintiff’s fixed expenses were $160 a month for meals, at $40 per week for four weeks, although the greater part of this was written off as a part of business expenses, and the same is true of the additional expenses he claims due to the bigger automobile. The amount of this increased item was never given nor was there even any estimate as to his laundry, dry cleaning, and other such expenses. His apartment rent was $235 monthly, or $2,820 annually, but $550 of this figure was written off as a business expense. Even allowing plaintiff the full amount of his food expense at the highest estimate, $160 monthly, and charging none off to business expense; the apartment rental not charged off, $2270 yearly, or $189 monthly, $4 a month for medicine, $100 monthly alimony to his second wife; six visits to the doctor at $15 each, for $90 total, or $7.50 monthly; the plaintiff’s total monthly expenses were at the very most $460.50 plus some allowance, the amount of which cannot be gleaned from this transcript, for laundry, dry cleaning and olher similar 'expenses. Actually the amount would be much less because the meal expense would be written off as a deduction for the time plaintiff was traveling. He would have $1,403.95 monthly remaining from which to pay his daughter’s support, taxes, and other items, the cost of which was not given. The uncontradicted evidence is that the defendant spent more on this child in 1957, 1958, and 1959 than the increased award of $75 weekly, or $3,600 yearly, and that with the increased educational expenses will exceed that sum even more. This income figure is before taxes, it is true, but even when the trial court took that element into consideration the balance would not, in our opinion, constitute an amount so low that the trial court’s action can be said to be an abuse of discretion.

It is the plaintiff’s contention that travel expense and attorney’s fees should not have been awarded at all, and that in the alternative, the sum awarded was excessive in each category. It is well settled that a motion to modify is a continuation of the original action for divorce, Crooks v. Crooks, Mo.App., 197 S.W.2d 678, and the allowance of attorney’s fees, Hawkins v. Hawkins, Mo.App., 250 S.W.2d 817 at [6-8] page 819, and other such awards lie within the exercise of the trial court’s sound discretion which will not be disturbed in the absence of clear abuse thereof, Missouri Digest, Divorce, 312]/$. In 1959, the last complete year before the hearing on this motion, defendant was paid $7,950 and paid an income tax of $707.70, for a net of $7,243.30. She had expended $3,975 for maintenance of Linda Jill during that year and by simple arithmetic $2,475 of this sum had to come from her own funds. She had very little money in the bank — -not even enough ,to pay the cost of tickets to and from St. Louis. The defendant is not required to render herself penniless before she is entitled to an allowance for her travel expenses and attorney’s fees, but rather is she entitled to such awards in the discretion of the trial court upon taking into consideration her financial status and ability to bear this expense, along with that of her husband.

Upon careful review of the evidence on these matters, we are convinced there has not been abuse of judicial discretion in making these awards.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

ANDERSON, P. J. and JOHN J. KELLY, Special Judge, concur.

WOLFE and RUDDY, JJ., not participating.


author: DOERNER, Commissioner.

text:
    Aurelia McLAURIN, Plaintiff-Appellant, v. FRISELLA MOVING AND STORAGE COMPANY, Inc., Defendant-Respondent.
    No. 30920.
    St. Louis Court of Appeals. Missouri.
    March 20, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied April 12, 1962.

      Edward J. Delworth, Clayton, for plaintiff-appellant.
    Correnti & Godfrey, Michael F. Godfrey, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is an action by a discharged employee against a corporation to recover unpaid wages and a penalty for nonpayment of the same. The action is predicated upon. Section 290.110 RSMo 1959, V.A.M.S.*, which reads:

“Whenever any corporation doing business in this state shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of any such servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ; and such servant or employee may request in writing of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station or office where a regular agent is kept; and if the money aforesaid, or a valid check therefor, does not reach such station or office within seven days from the date it is so requested, then as a penalty for such nonpayment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid; provided, such wages shall not continue more than sixty days, unless an action therefor shall be commenced within that time.”

The verdict and judgment below was for plaintiff for unpaid wages of $59.45 and of $2,750 for penalties, but being dissatisfied with the latter amount, plaintiff prosecutes this appeal.

The evidence showed that on February 23, 1959, plaintiff was employed by the defendant as a secretary, and worked as such until May 1, 1959, when she was discharged. Plaintiff testified that although she was employed on the basis of a salary of $275 per month, she was paid each week by a check for $59.45, representing her net compensation after deduction of $4.01 for Federal income tax, Old Age and Survivor’s Insurance, and the St. Louis City earnings tax. Plaintiff’s evidence further showed that she was not paid her wages for the last week she worked; that the written demand for the same prescribed by the statute had been made on defendant; that such wages thereafter remained unpaid; and that this action was instituted within sixty days from the date of her discharge. Defendant admitted or did not contest these elements essential to an action of this nature. Its defense was that at the time of her discharge plaintiff was indebted to defendant for the sum of $132. Defendant’s evidence was that this indebtedness arose because it had paid an employment agency a fee owed by plaintiff, on the strength of plaintiff’s promise to repay defendant. Plaintiff denied this, and testified that at the time she was employed defendant had agreed to assume and pay the fee.

At the close of plaintiff’s case, and again at the close of the whole case, plaintiff moved for a directed verdict, both of which motions were overruled. Plaintiff submitted her case to the jury on a verdict directing instruction about which no point is raised on appeal. Plaintiff also offered instruction A, by which the jury was told that if it found in favor of plaintiff it must award her $59.45 for wages due, and the sum of $5,415.38 as a penalty for failure to pay plaintiff’s wages when demanded. The court refused plaintiff’s instruction A and substituted and gave instruction No. 5, which informed the jury that if it found in favor of plaintiff it might award her wages not to exceed $59.45, “ * * * and a further sum as a penalty not to exceed $59.45 for each week from May 1, 1959 to date.” On its part defendant offered and the court gave instruction No. 4, by which the jury was instructed to find for defendant if it found that defendant was not indebted to plaintiff for unpaid wages because plaintiff owed defendant for the employment fee.

As stated, the jury found the issues in favor of plaintiff, and returned a verdict allowing her $59.45 for unpaid wages and $2,750 for penalties. Because of the time intervening between plaintiff’s discharge and the verdict it is obvious and undisputed that in calculating the total amount of the penalties the jury used a rate substantially less than that of $59.45 per week. The jury undoubtedly inferred that it was within its province to use the lesser rate because of the court’s direction in instruction No. S that it could award plaintiff penalties at a rate “not to exceed” $59.45 per week. In its after-trial motions plaintiff complained that the court had erred in refusing to give instruction A, and that the jury had miscalculated the amount of the penalties, and asked the court to amend the judgment by entering the correct amount; or in the alternative, to grant plaintiff a new trial as to the issue of damages only. Defendant filed a motion to set aside the verdict and judgment and to enter judgment in its favor in accordance with its motion for a directed verdict (although it had not filed one at the close of the case), or in the alternative, for a new trial. The court overruled all motions, and plaintiff appealed.

Among other points raised by plaintiff on appeal is the contention that the court erred in overruling her motion for a directed verdict at the close of the whole case. Plaintiff points to defendant’s evidence that at the time defendant agreed to advance the money for the payment of the fee of the employment agency it was agreed that defendant might retain $5 out of plaintiff’s wages each week to reimburse defendant. From this it is argued that defendant’s own evidence showed that defendant was not entitled to retain the entire week’s wages of $59.45 which was due plaintiff when she was discharged. There is no merit to this contention. Under defendant’s evidence the plaintiff was indebted to the defendant for the full amount of the fee. The agreement as to the time and rate of payment pre-supposed that plaintiff would remain in defendant’s employ a sufficient length of time to repay defendant at the rate of $5 per week, but when plaintiff was discharged defendant had the right to apply the wages due against plaintiff’s indebtedness. Olsen v. Bernie’s Inc., Mo., 296 S.W.2d 3. Gawthrop v. Missouri Pac. Ry. Co., 147 Kan. 756, 78 P.2d 854; Stewart & Alexander Lumber Co. v. Weaver, 83 Ark. 445, 104 S.W. 152; Yancey v. Dickson Ice Cream Co., La.App., 190 So. 837. To deny the employer the right of set-off of a valid debt owed by the employee might well render the statute unconstitutional. Quinn v. T. M. Sayman Products Co., Mo.App., 296 S.W. 198.

Plaintiff also contends that by Section 290.110 the penalties to be assessed against the employer-corporation for nonpayment of the wages due the discharged employee are fixed and determined at the regular wage rate; that if the jury finds the issue of nonpayment in favor of plaintiff it is mandatory upon the jury to allow the discharged employee penalties at that rate; that in the instant case the total amount of such penalties to be allowed, if the jury found in favor of plaintiff, computed at the rate of $275 per month, was correctly set forth in plaintiff’s instruction A (except for a miscalculation favorable to defendant) ; ■ and that the court erred in refusing to give plaintiff’s instruction A and in substituting instruction No. 5 in lieu thereof. Defendant argues that the statute is penal in nature and must be strictly construed, citing Durant v. Industrial Products Mfg. Co., Mo.App., 235 S.W.2d 574 and Quinn v. T. M. Sayman Products Co., supra. Those cases so hold, because of the penalty portion of the statute. It is interesting to note, however, that from an historical standpoint measures such as Section 290.110, adopted in 1913 (Laws 1913, p. 175), as well as another statute passed in 1911, now Section 290.080, which requires corporations to pay the wages of their employees at least semimonthly were earlier forms of what is sometimes termed social or labor legislation. As pointed out in State v. Missouri Pac. Ry. Co., 242 Mo. 339, 147 S.W. 118, at that stage of our economic history a majority of those gainfully employed had become wage earners, highly dependent upon their wages for their sustenance and that of their families. It was recognized that to deprive them of their wages for an unreasonable length of time would not only impoverish them and their families, but would tend to make them the objects of public charity, and therefore be injurious to the community as a whole. Thus it was to insure the payment of wages at reasonable intervals, as well as the prompt payment of wages upon a discharge, that legislation of the character of Sections 290.080 and 290.110 was adopted. State v. Missouri Pac. Ry. Co., supra; Olson v. Idora Hill Mining Co., 28 Idaho 504, 155 P. 291. Statutes of other states similar to Section 290.110 have been upheld as valid and constitutional. St. Louis, I. M. & S. Ry. Co. v. Paul, 173 U.S. 404, 19 S.Ct. 419, 43 L.Ed. 746, affirming 64 Ark. 83, 40 S.W. 705, 37 L.R.A. 504; Moore v. Indian Spring Channel Gold Mining Co., 37 Cal.App. 370, 174 P. 378; Olson v. Idora Hill Mining Co., supra; Livingston v. Susquehanna Oil Co., 113 Kan. 702, 216 P. 296; Wynne v. Seaboard Air Line Railway, 96 S.C. 1, 79 S.E. 521.

Assuming, however, that as an abstract proposition Section 290.110 must he strictly construed, the weakness in defendant’s position is that it does not point to any part which it contends is ambiguous and requires judicial construction. Nor does it designate any portion which it claims supports its argument that the jury may assess penalties at less than the regular rate of wages of the discharged employee. The statute is clear and unambiguous. That part of it dealing with penalties plainly provides that for nonpayment of the employees wages “ * * * then as a penalty for such nonpayment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid * * This can only mean the wage rate as fixed by the terms of the contract of employment. Quinn v. T. M. Sayman Products Co., supra. It is a familiar rule that where the language of a statute is plain and admits of but one meaning there is no room for judicial construction. Rathjen v. Reorganized School Dist. R-11 of Shelby County, 365 Mo. 518, 284 S.W.2d 516; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920. And under the guise of judicial interpretation we have no right to change the •.meaning of a plain and unambiguous statute. Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577.

Where no claim is made that a statute violates some constitutional limitation, as in the instant case, our duty is to apply an unambiguous law as written, and to leave to the legislative branch of our state government the matter of determining questions of legislative policy. Brinkmann v. Common School District No. 27 of Gasconade County, Mo.App., 238 S.W.2d 1. The propriety of a statute such as Section 290.110 is a matter for the legislature, not the courts. Davis v. Morris, 37 Cal.App.2d 269, 99 P.2d 345; St. Louis, I. M. & S. Ry. Co. v. Paul, supra. And as is said in 23 Amer.Jur., Forfeitures and Penalties, Sec. 45, p. 636: “Provided that constitutional limitations are not exceeded, the amount of a penalty is within the discretion of the legislature. Courts will not interfere with the legislative discretion in the premises as long as the legislature keeps within the fair and reasonable scope of its power.”

It follows from what we have said that under the circumstances of this case the court erred in refusing to give plaintiff’s instruction A, which instructed the jury to allow the penalties in a stated amount, and erred in giving instruction No. 5 of its own motion. Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 105 A.L.R. 1063; Brandt v. Beebe, Mo.App., 332 S.W.2d 463. The question is then presented as to what our judgment should be. The only issue of fact in the case was whether plaintiff was indebted to defendant for the fee paid to the employment agency. That issue was resolved by the jury in favor of plaintiff, and no error appears as to its decision. Defendant admitted that it had not paid plaintiff the wages of $59.45 which were due her at the time she was discharged, and conceded that by the terms of the contract of employment plaintiff’s compensation was to be at the rate of $275 per month. To remand the case for a new trial as to the issue of damages would be a futile gesture. The amount of the penalties to which plaintiff is entitled is a mere matter of calculation, which this court can make. Home Trust Co. v. Josephson, supra. In such a situation we may, after reversing the judgment nisi in whole or in part, either enter a new judgment here, or remand the cause with directions to enter such judgment. Civil Rule 83.13(c), V.A.M.R. Compare Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426; Central States Life Ins. Co. v. Bloom, 345 Mo. 982, 137 S.W.2d 517.

Accordingly, the judgment should be reversed and the cause be remanded with directions to enter a judgment in favor of plaintiff and against defendant for unpaid wages of $59.45 and penalties of $5,690.38, aggregating the sum of $5,749.83, together with costs. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is reversed and cause remanded with directions.

RUDDY, Acting P. J., WOLFE, J., and SAM C. BLAIR, Special Judge, concur.