author: HOLMAN, Judge. HENLEY, Judge

text:
    STATE of Missouri ex rel. Shirley K. DUB INSKY, Relator, v. Honorable Noah WEINSTEIN, Judge, Circuit Court of St. Louis County, Juvenile Division, Respondent.
    No. 52079.
    Supreme Court of Missouri, En Banc.
    April 10, 1967.

      Charles M. Shaw, Clayton, for relator.
    Merle L. Silverstein, Rosenblum & Gold-enhersh, Clayton, for respondent.
   HOLMAN, Judge.

In this original proceeding in prohibition relator seeks to prevent the respondent, as Judge of the Juvenile Division of the Circuit Court of St. Louis County, from proceeding further upon a petition relating to the care and custody of her daughter, Judith Ann Dubinsky, a child five years of age. After respondent had overruled relator’s motion attacking the jurisdiction of the court in said cause we issued our provisional rule upon petition of relator.

The facts are not in dispute. Harlan A. Dubinsky and relator, Shirley K. Dubinsky, are the parents of Judith Ann. On January 16, 1965, a petition for divorce was filed in the Circuit Court of the City of St. Louis by Harlan. The relator filed an answer and a cross-bill for separate maintenance. The divorce case was heard on December 9, 1965, and on December 29 plaintiff was awarded a decree of divorce and relator was given custody of Judith Ann, together with a judgment against plaintiff for $300 per month child support. The court found for Harlan on relator’s cross-bill for separate maintenance.

Relator filed a timely motion for new trial upon the issues of divorce and separate maintenance. On March 30, 1966, the motion for new trial was sustained by consent of the parties. On that date relator amended her cross-bill so that it prayed for divorce rather than separate maintenance. The parties also entered into a stipulation relating to custody and support in the event of a divorce. On April 7, 1966, relator was granted a divorce from Harlan on her amended cross-bill and was given the custody of Judith Ann, with right of temporary visitation custody in Harlan, and was awarded $300 per month for the support of said child.

On March 2, 1966, Harlan filed a complaint in the Juvenile Division of the St. Louis County Circuit Court and as a result thereof, by authority of respondent, the juvenile officer of St. Louis County, on the same date, filed a petition in which he alleged that Judith Ann resided in St. Louis County and that she was within the applicable provisions of Section 211.031 in that she “is without proper care, custody and treatment in accordance with a written report contained in the court records.” It was further alleged that her welfare required that her custody be immediately assumed by the court. A summons was served on relator and, as stated, her attorneys have questioned the jurisdiction of the court to proceed in the juvenile matter.

As indicated, relator here contends that Judith Ann, upon entry of the divorce decree, became a ward of the circuit court of the City of St. Louis and that said court has continuing exclusive jurisdiction over said child and of the issue as to who is to have her custody. Respondent, on the other hand, here contends that while the divorce court has jurisdiction of matters pertaining to the custody of Judith Ann as relates to custodial controversies between the divorced parties, the juvenile court has jurisdiction under § 211.031 which supersedes and is paramount to the jurisdiction of the divorce court as to matters relating to the care and custody of said minor under the provisions of said § 211.031.

Our task in this case relates to the difficult area of the law concerning child custody. There are at least four separate forums in which child custody may be adjudicated. They are (1) in a divorce proceeding, § 452.070; (2) in habeas corpus proceedings, In re Duncan, Mo.Sup., 365 S.W. 2d 567, 4 A.L.R.3d 1270; (3) in the juvenile division of the circuit court, Chapter 211; and (4) in a guardianship proceeding in the probate court, § 475.120(1). In that situation it is almost inevitable that conflicts of jurisdiction may occasionally develop. In the case before us it is contended that a conflict has developed between the divorce court of the City of St. Louis and the juvenile division of the St. Louis County Circuit Court. Specifically, the question before us is this: After the circuit court in the divorce case has entered a judgment adjudicating the custody of Judith Ann as between the father and mother, does the juvenile division of the circuit court of the county in which she lives have jurisdiction to consider a petition under § 211.031 so that, if Judith Ann is found to come within the provisions of said section, that court would acquire jurisdiction relating to her care and custody which could continue until she becomes 21 years of age? See §§ 211.041 and 211.181. For reasons which will hereinafter appear, we rule that in a case properly coming within the provisions of § 211.031 the jurisdiction of the juvenile court supersedes and is paramount to the incidental jurisdiction which a divorce court may have over the custody of the child of the parties.

Section 452.070 provides, in part, as follows: “When a divorce shall be adjudged, the court shall make such order touching * * * the care, custody and maintenance of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be reasonable * * In cases arising under that statute the courts have been almost unanimous in formulating or adopting the general rule that “a minor child of divorced parents becomes the ward of the court which grants the decree; that the court’s jurisdiction to determine where custody of the child shall go vests in such court to the exclusion of all others, and continues until the child attains its majority.” Salkey v. Salkey, Mo.App., 80 S.W.2d 735, 739. Where special circumstances and extraordinary reasons therefor appear the divorce court may refuse to give the custody to either parent and award it to a third party. McCoy v. Briegel, Mo.App., 305 S.W.2d 29; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467. However, only an original party may file a motion to modify the custodial provisions of the divorce decree. Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40 [5], Also, it is settled that a divorce action abates upon the death of either party and in that event the court’s power over the custody of a child completely terminates. In re Wakefield, supra; Schumacher v. Schumacher, Mo.App., 223 S.W. 2d 841 [9]. And, although habeas corpus may be resorted to in order to enforce the custody provisions of a divorce decree, the writ may not, as a general rule, be employed to interfere with the jurisdiction of the divorce court to award custody of minor children. In re Wakefield, supra. The unusual circumstances creating an exception to that rule appear to have existed in the case of In re Duncan, supra.

The various sections of Chapter 211 were enacted in 1957 and are often referred to as the new Juvenile Act. Therein the General Assembly vested the juvenile court with broad powers relating to neglected and delinquent children. Section 211.031 provides :

“Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings:
“(1) Involving any child who may be within the county who is alleged to be in need of care and treatment because:
“(a) The parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being; except that reliance by a parent, guardian or custodian upon remedial treatment other than medical or surgical treatment for a child shall not be construed as neglect when the treatment is recognized or permitted under the laws of this state; or
“(b) The child is otherwise without proper care, custody or support; or
“(c) The behavior, environment or associations of the child are injurious to his welfare or to the welfare of others; or
“(d) The child is alleged to have violated a state law or municipal ordinance;
“(2) Concerning any minor seventeen years of age or older who may be within the county, and who is alleged to have violated a state law or municipal ordinance prior to having become seventeen' years of age;
“(3) For the suspension or revocation of a state or local license or authority of a child to operate a motor vehicle;
“(4) For the adoption of a person;
“(5) For the commitment of a child to the guardianship of the department of public health and welfare as provided by law.”

While we will not attempt to review all of the provisions of the chapter, it will perhaps be helpful to point out that once jurisdiction is acquired it may be retained until the child becomes 21 years of age, § 211.041; that under § 211.181 the court, upon a finding that the child comes within § 211.031, has almost unlimited powers relating to the care, custody, physical and mental examination and treatment of the child. See also § 211.161. And the court may modify its decree at any time, § 211.151. Section 211.351 provides for the appointment of a juvenile officer who shall assist the judge in performing his duties and exercising the powers of the juvenile court. See § 211.041. Under §§ 211.440 to 211.511, inclusive, the court is given the power to terminate all rights of either parent to a child. Various sections of Chapter 211 also give the juvenile court extensive powers in regard to the care and custody of children found to be delinquent.

We are convinced that the general assembly, in enacting the new juvenile act of 1957 and certain predecessor laws of a similar nature, recognized that other laws and procedures relating to the care and custody of children were not entirely sufficient and therefore intended that the juvenile court be given paramount jurisdiction over other courts in matters relating to the care and custody of children coming within the provisions of Chapter 211. The most obvious deficiency in the divorce court custody procedure is demonstrated by the case where one parent deserts the family and the other party is granted a divorce, often uncontested, and obtains the custody of the children without more than a perfunctory determination of the fitness of said parent to rear them. Thereafter, if it develops that the children are neglected and being reared under immoral or other improper conditions indicating the depravity of their custodian,' there is no one (except the disinterested defendant) who can file a motion for a change in the custody. Also, we have already pointed out that the divorce court loses all jurisdiction upon the death of either party. And it is elementary that that court would not have the power to make a proper disposition of a child who had committed a crime or was otherwise delinquent.

We consider it unnecessary to extend this opinion by pointing out the many other situations in which the juvenile court may order more complete and appropriate relief in relation to the care, custody, and treatment of children. It should also be noted that a petition invoking § 211.031 can only he filed by the juvenile officer; and the proceeding is predominantly an inquiry by the State rather than a contest between the vindictive parents seeking a divorce decree granting custody or a modification thereof. In that situation we find it difficult to attribute to the legislature an intent to withhold from the juvenile court any jurisdiction to deal with neglected childern whose custody had been adjudicated by a divorce court. Our view is not changed by the declaration contained in § 211.051 that “[njothing contained in sections 211.011 to 211.431 deprives other courts of the right to determine the legal custody of children upon writs of habeas corpus or to determine the legal custody or guardianship of children when the legal custody or guardianship is incidental to the determination of causes pending in other courts. Such questions, however, may be certified by another court to the juvenile court for hearing, determination or recommendation.” We think that section was enacted to make it clear that other courts could continue to determine custody as in the past, but we find nothing to indicate-an intent to give those courts jurisdiction to the exclusion of the juvenile court to be exercised in a proper case.

Particularly in view of the enactment of the new juvenile act of 1957, we have considered it desirable to review in some detail the question presented. However, we hasten to point out that we are not formulating any new rule in this state. More than forty years ago this court approved (at least tacitly) a ruling by the Kansas City Court of Appeals, in a case factually similar to the one before us, wherein that court said: “ ‘The continuing jurisdiction of a court which has granted a divorce to supervise the custody of minor children of the parties cannot be interfered with by another court which except for such retained jurisdiction would have authority under a writ of habeas corpus to make the same inquiry and grant the same relief. In re Pettit, 84 Kan. 637, 114 P. 1071. The juvenile court, however, stands upon a very different footing. It is specifically given jurisdiction “of all cases concerning dependent, neglected and delinquent children.” Gen.Stat.1915, § 3065. The conditions under which it may take control of a child and the manner in which it may exercise it are quite different from those existing in the case of any other tribunal.’ We think, then, that the jurisdiction of the juvenile court is paramount and not concurrent with the incidental jurisdiction which a divorce court may have in the premises. * * * ” State ex rel. Dew, Judge v. Trimble, 306 Mo. 657, 269 S.W. 617, 620. A similar view was indicated in Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323 [4], State ex rel. Bur-trum v. Smith, 357 Mo. 134, 206 S.W.2d 558 [4], and In re Von Talge, Mo.App., 67 S.W.2d 999. In State v. Farrell, 241 Mo.App. 234, 237 S.W.2d 492, there was no discussion of the rule of law involved but the court did affirm a judgment in which the juvenile court made a custody disposition which was contrary to that previously made in a divorce decree. See also, Law in Area of Child Custody, 27 Mo. Law Review 406; Annotations 11 A.L.R. 147 and 78 A.L.R. 317. After reviewing the question in the light of the new Act, we deem it appropriate to adhere to the rule stated in the Trimble case, supra. We think the rule heretofore quoted which states that the court in divorce cases has jurisdiction to determine custody of the child “to the exclusion of all others” is a very general rule which was formulated without consideration of the jurisdiction of juvenile courts.

We have mentioned previously that a petition invoking § 211.031 may be filed only by the juvenile officer. Upon the filing of a complaint with the juvenile court, it is provided by § 211.081 that the juvenile court shall make or cause to be made a preliminary inquiry to determine the facts and whether the interests of the public or the child require action under § 211.031. Authorization to the juvenile officer to file a petition is permissible only when the juvenile court, in its discretion,, determines that such preliminary inquiry so dictates. It perhaps is unnecessary to suggest that juvenile courts should not authorize the filing of a petition by the juvenile officer in cases where it appears that one of the parents is merely endeavoring to obtain a second trial of the issue of custody as between the parents when that question has been determined previously by a divorce court.

For the reasons stated, the preliminary rule in prohibition should be discharged. It is so ordered.

All concur except HENLEY, J., who dissents in separate dissenting opinion filed.

HENLEY, Judge

(dissenting).

I respectfully dissent.

The record discloses that the proceeding in the juvenile court of St. Louis county was instituted by the filing of a complaint by the father while a divorce suit between the parents was pending in the circuit court of the City of St. Louis. It was after the divorce court had awarded custody of the child to the mother, and while the divorce suit was pending on motion for new trial, that the father complained to the juvenile court that the child was without proper care and treatment in its mother’s custody, thereby causing the juvenile court to invoke its jurisdiction. Thereafter, and while the juvenile proceeding was pending, the divorce court sustained the motion for new trial, heard evidence in that suit, awarded the mother a divorce, and again awarded her custody of the child.

I am not unmindful of the record fact that the parents stipulated in the divorce suit that custody of the child be awarded the mother if the court granted a divorce. On the contrary, I consider this a significant indication that the father has attempted to play fast and loose with the courts, with the child as a pawn. If the father were truly sincere in his complaint that the child was without proper care and treatment in the custody of the mother, he had the opportunity to, and should have, presented evidence of those facts to the divorce court. Instead, he continues to insist, through respondent, that the issue of custody be relitigated. At least on the surface it appears that it is the father who continues to insist; he initiated the proceeding and the usual procedure is for attorneys representing a person in the father’s position here to represent the respondent in prohibition. There is no reason to believe this case is any different in that respect from the usual prohibition case, so far as this record shows. It would be most unusual for a respondent judge to employ counsel and hardly conceivable that the respondent would employ counsel on his own to encourage the continuance of litigation. To me the father’s continued insistence smacks of piquant harassment of the mother to the possible detriment of the child, an improper use of jurisdiction of the juvenile court neither we nor that court should countenance.

Respondent contends that the principal parties in a juvenile proceeding are the state and the child; that the filing of a complaint in juvenile court by one parent does not “reduce the juvenile case to a controversy between spouses which should be relegated to the divorce court.” I agree that the state and child are the formal parties, but cannot ignore these facts: this proceeding was initiated by the father after the custody was awarded the mother; it is opposed by the mother whose motion to dismiss for lack of jurisdiction was overruled, as a result of which she sought our writ-of prohibition; the petition for the writ is being vigorously opposed by someone in opposition to the mother’s present right of custody so as to maintain, for some purpose, jurisdiction assumed by the juvenile court. These facts point toward the father as the real party in interest, not the state of Missouri, and a child custody fight between parents as the purpose.

The main allegation of the petition in juvenile court is that the child is without proper care, custody and treatment and cannot receive in her home such care, guidance and control as will conduce to her welfare and the best interests of the state. There are no allegations (1) that she “ * * * is otherwise without proper care, custody or support * * section 211.031, subsection 1(b); or, (2) that her “ * * * behavior * * * or associations * * * are injurious to * * * [her] welfare or * * * the welfare of others,” subsection 1 (c); or (3) that she has violated a law, subsection 1(d). If this petition in juvenile court involved more than an effort by the father to relitigate with the mother the custody issue; if it involved an utter abandonment of the child or circumstances described in subsections 1(c) and (d), and possibly subsection 1 (b) (as I understand that subsection) or parts of subsection 1(a), I could concur in the result reached by the majority. But, as I see it, it is a proceeding instituted and vigorously prosecuted by a father who has had his day in court.

The majority opinion expresses the caveat that juvenile courts should not permit their jurisdiction to be invoked when it appears that one of the parents is endeavoring to relitigate the custody issue with the other parent, where that question has been determined by a divorce court. What the majority opinion suggests should not be permitted is, to me, exactly what the record shows respondent has done. In other words, I respectfully conclude that the court has in deciding this case put its stamp of approval on that which it says juvenile courts should not authorize.

Under the facts and circumstances of this record, I would hold that the divorce court had and retains exclusive jurisdiction of the custody issue, as between the 'parents; that the juvenile court acted in excess of its jurisdiction. It follows that I would order our preliminary rule in prohibition made absolute.

      . All statutory references are to RSMo 1959, V.A.M.S.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Leo FARRIS and Rosie Lee Farris, Appellants, v. Adele H. HENDRICHS, Adrian W. Harper, Trustee, Sidney Kleg, Marie Whelan, and Gertie Marbain, Respondents.
    No. 52123.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.

      Morton L. Schwartz, St. Louis, for appellants.
    Ronald M. Lending, St. Louis, for respondents, Harper, Kleg, and Whelan and Marbain.
   PRITCHARD, Commissioner.

The appeal of this case, having been correctly transferred to this court by the St. Louis Court of Appeals on the ground that title to real estate is involved (see Farris v. Hendrichs, et al., Mo.App., 410 S.W.2d 97), is one by which appellants seek reversal of a judgment denying them relief in setting aside a foreclosure sale of their residential property under a second deed of trust. The principal theory of appellants is that the holder of the note under the second deed of trust (respondent Hendrichs) by long and continued acceptance of late payments from appellants waived prompt payment. As a result thereof, appellants say they were entitled to a reasonable notice from the note-holder that “there would be a modification of the practice and immediate, prompt and timely payment would be demanded, and that four or five hours notice of the change of policy on payment was not such a reasonable notice under the law.”

Much of the record is ’involved in testimony relating to how much and when payments upon the note were received by Mrs. Hendrichs from appellants. The testimony as to receipts for payments is very vague and is most inconclusive as to either party to the instrument. We have before us the exhibits relating to payments, but find (as did counsel for both parties, and Mrs. Hen-drichs) that it is impossible to relate receipts to notations appearing on Plaintiffs’ Exhibits 3 and 4, which are “Schedule of Direct Reduction Loan,” and which are identical with the exception of penned and penciled notations thereon. Mrs. Hendrichs testified that the notations were made by her, that appellants were often late in payments, and also made many part payments after the due dates, all of which she accepted. She testified further that the last payment she received was for January, 1963 (paid in June, 1963), after which there was a principal balance of $1,900.60. That amount appears on said Exhibits 3 and 4, being the 64th monthly payment after the initial one which was due (and paid) October 30, 1957, in which year appellants bought their residential property for $8,500. $1,400 was paid down (including closing costs), a $4,000 first mortgage was given the New Age Federal Savings and Loan Company, and Mrs. Hendrichs’ second mortgage was $3,950.

Mrs. Hendrichs sold her second mortgage to Sidney Kleg on July 18, 1963 for $1,000. One of the receipts for payments is dated December, 1963, but she testified that was an error — she gave the receipt in May, 1963. When a payment became complete (by partial payments to reach the monthly total, $47) it was marked on the schedules, which are a complete and accurate accounting for the months that were paid. At the time she sold the note, there were five delinquent monthly payments thereon — February, March, April, May and June, 1963. At various times she demanded payments past due, and threatened foreclosure.

Mrs. Farris testified that she made 83 payments on the second mortgage to Mrs. Hendrichs, paying thereon through 1964, doubling on some payments. She asked Mrs. Hendrichs what the balance was, and she said on more than one occasion, the last in May, 1963, that “my papers is so confused and messed up, she said I can’t give you the balance just now, she said, but I will get my books straightened up, but continue to make your payments and everything would be all right.” The advertising of the foreclosure started in July, 1963, to be held on August 16, 1963, and Mrs. Farris and her husband attended the foreclosure sale. They did not purchase the property thereat, because she thought she would get the property back. Mr. Kleg so told her — that if she “would pay him $250.00 down and the balance would be $500.00 and in five or six weeks, and, well, he said that he would sell me the second deed of trust back for $8,000.00.” She paid him $250 but did not get the property back. Mr. Kleg bought the property at the foreclosure sale for $1,500. Mrs. Farris further testified that she had paid the first mortgage down to $2,390.51 and the second mortgage down to $1,150 in 1963, “paid through ’64 and that would be $1,150.00 left.”

A. W. Harper, the trustee in the second deed of trust, testified that it was he who contacted Mrs. Hendrichs for the purchase of the note on behalf of Sidney Kleg, and delivered the latter’s check therefor to her on July 18, 1963. Prior to that, on behalf of Mrs. Hendrichs, Harper talked with Mrs. Farris about the delinquencies and she advised him that they could not pass the credit report for refinancing, but she would try to bring in the delinquent payments as fast as possible. He called Mrs. Farris on the day the note was sold and advised her that all the holder, Mr. Kleg, wanted were the delinquent payments, and “she said at the present time she couldn’t come up with any payments.” He told her that January 30th was her last payment, and she said she couldn’t come up with it. He ascertained the balance to be $1,900.60, and so advised Mr. Kleg. A copy of the notice of foreclosure was mailed by him on the first day of publication to the Farrises, and five or six days later Harper called Mrs. Farris and told her that the new holder of the note advised him to start foreclosure, which he did as of July 19th, and she said she knew it was being foreclosed as of August 16th. The publications were made in the “Daily Record” for 21 days, notifying that the sale would be held on August 16, 1963. He cried the sale, at which the Farrises were present, and sold the property to Mr. Kleg for $1,500.

Sidney Kleg testified that when he bought the note, balance $1,900.60, from Mrs. Hen-drichs, he authorized Harper to make a demand on that same day. Harper reported that the Farrises could not come in with any money, and he told Harper to proceed immediately with foreclosure. The sale was held August 16, 1963, in the Real Estate Board room, at which the Farrises and eight or nine real estate men were present. Thereafter, Mr. Kleg had a meeting with the Farrises at the office of their then lawyer, Mr. Harris, who requested him to make it possible for the Farrises to repurchase their home. Mr. Kleg then called Mrs. Farris and proposed that they could buy the property back for $8,000 total price, subject to financing, with a down payment of $750, including closing costs. He then talked to Mr. Farris, repeated the proposition, and Mr. Farris told him to “go to hell.” About September 1, 1963, further conversations were had, and a contract was made for the Farrises to repurchase [signed by Frances and Whitfield Galliday (daughter and son-in-law of the Farrises)], with $250 earnest money. $50 was paid, and Mr. Kleg wrote a letter asking for the $200 balance, which was later paid by the Farrises at $100 intervals, the last October 18, 1963. Galli-day later refused to go ahead with the deal, and the Farrises did not go through with it.

Respondent Gertie Marbain was Mr. Kleg’s straw party through whom he took title from the trustee in foreclosure, and the named respondent, Marie Whelan, was at times also used by Mr. Kleg as a straw party, but apparently is erroneously included as a party hereto.

Appellants’ first and second points are to the effect that the trial court erred in not finding that Mrs. Hendrichs established a practice of waiver of prompt payment, acquiesced in delinquencies and lulled appellants into a sense of false security, whereby the trustee was not authorized to foreclose unless he or the mortgage holder gave reasonable notice that there would be a modification of the practice of waiver and acquiescence. Merit in these points is not borne out by the record. Although Mrs. Hendrichs accepted late piecemeal payments, she testified she did make demands and threatened foreclosure. We find, as the trial court must have found, that the payments on the note were in arrears five or six months at the time Mrs. Hendrichs sold it. The Farrises were fully apprised of that situation, and the record shows it to be true despite Mrs. Farris’ testimony that she paid payments into 1964 “according to her records.” (Much of the testimony relating to payments involves credibility of witnesses, which is for the trial court to determine, and to whom we defer. We discern from the record that the answers of Mrs. Farris are vague, evasive and most inconclusive to support her position that she had fully paid up payments prior to foreclosure.) Apparently it is appellants’ position that $250 paid to Mr. Kleg should be credited on the note as payments thereon. Clearly, and Mrs. Farris conceded in her testimony, the $250 was earnest money paid Mr. Kleg for the repurchase of their home. It was not intended to be note payments, and under this record cannot be used to supply delinquencies thereon.

The record shows here that appellants were given ample opportunity to bring up delinquent payments prior to foreclosure, August 16, 1963. They not only failed to do that, but when they were given the opportunity to repurchase the property (at a price apparently acceptable to them) they again failed.

Appellants cite Edwards v. Smith, Mo., 322 S.W.2d 770. That case involved an agreement made between the makers and the holder of the note (after its execution) that late payments might be made without foreclosure. Here, although Mrs. Hen-drichs accepted late and partial payments, the evidence shows that she constantly made demands upon appellants to bring the note up to date or she would foreclose. The resolution of conflict in Mrs. Hen-drichs’ testimony, and that of Mrs. Farris to the effect that they should keep up their payments and everything would be all right, was for the trial court. Note that the trustee, Harper, contacted appellants on behalf of Mrs. Hendrichs, and that Mrs. Farris assured him that they would try to bring up delinquencies. Edwards v. Smith, supra, is of no aid to appellants here. They were aware of their delinquencies in payments, there was no waiver of prompt payment, and appellants were not lulled into a false sense of security against foreclosure. Points I and II are overruled.

The payments on the note were five or six months in arrears when Harper contacted appellants, once on behalf of Mrs. Hendrichs and when they were advised that the note had been sold to Mr. Klég. They were advised that all Mr. Kleg wanted was that the delinquencies be paid up, and even after foreclosure notice was started they would have until August 16, 1963, the date of sale, to pay up and save their home from foreclosure. Under the circumstances, no further notice was necessary from the trustee or noteholder that payments other than as received by Mrs. Hen-drichs would be insisted upon. There was no period of waiver which had to be terminated by notice within the contemplation of Edwards v. Smith, supra.

There is no evidence here that the trustee, Harper, failed to show impartiality as required (see West v. Axtell, 322 Mo. 401, 17 S.W.2d 328, 335) toward appellants and Mr. Kleg. In fact, he contacted appellants with respect to delinquencies long prior to foreclosure. Since the balance due on the note was established by the testimony of Mrs. Hendrichs, and her notations thereon when she sold it, the trustee was under no further duty to ascertain if it was in fact in default (especially to consider the inconclusive receipts of Mrs. Farris produced at trial, and when she herself acknowledged to him such default and that they would try to bring up delinquencies). There is no evidence that the trustee knew of any claim by appellants that Mrs. Hendrichs had waived prompt payments. Point III of appellants is overruled.

For their fourth point, appellants say that they repeatedly asked Mrs. Hen-drichs what the balance was and offered to pay up any delinquent balance. Their testimony as to any such request and offer was for the trial court. Mrs. Hendrichs’ testimony was that when a $47 payment was paid in full (through piecemeal, partial payments) she entered the whole payment as satisfied on the schedule of loan reduction. Thus, the balance due could be ascertained at any time (and was so ascertained when Mrs. Hendrichs sold the note). We deem that the record shows that appellants did not firmly offer to pay up any delinquent balance at any time. Lunsford v. Davis, 300 Mo. 508, 254 S.W. 878, merely affirmed a judgment setting aside a foreclosure upon condition that the plaintiff pay taxes which was the only default, and upon grounds not here appearing: the trustee had in mind only the interests of the mortgagees; the sale was had at an unusual hour with no other bidders than the mortgagee present; and the price was inadequate. In Leone v. Bear, 362 Mo. 464, 241 S.W.2d 1008, plaintiffs sought to stop the foreclosure sale by appearing and tendering an amount sufficient to stop the foreclosure sale, which tender was held to have been established by a preponderance of the evidence. As pointed out by respondents here: appellants are inconsistent in their claims that they offered to pay what was due, and that there was no default in that they had been late in paying installments in excess of the number due on the foreclosure. Point IV is overruled.

Appellants seem to base Point V on a theory that the evidence did not show they were not paid up in installments and foreclosure was unjustified: “The court erred in that it entered a decree for the defendants Hendrichs, Harper, Kleg -and Marbain although the evidence clearly showed there was confusion on Mrs. Hen-drichs’ part in regard to the receipts and the receipts themselves .were so confused as to preclude any basis for a foreclosure.” The point (as well as others herein) does not comply with Civil Rule 83.05(e), V.A.M.R., requiring, “The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong ⅜ * ” (Italics added.) The burden of proof as to payment, so as to make the foreclosure without basis, was upon appellants. Bay v. Elmer, 241 Mo.App. 389, 237 S.W.2d 932, 937 [10], and cases cited. The record here shows that appellants were without legal basis to prevent the foreclosure, including their alleged payment of their installments due. Point V is overruled.

It is true that courts will scrutinize foreclosure proceedings held without court order, Stine v. Wilkson, 10 Mo. 75, 94. The evidence convinces us that appellants were not overreached by anyone in this foreclosure proceedings. On the contrary, they were given ample opportunity to pay up delinquencies and prevent foreclosure, but failed to do so. Point VI is overruled.

The evidence does not bear out the contention of Point VII that the trustee did not ascertain the true balance due, -if any, on the note. Harper ascertained that amount from Mrs. Hendrichs, noted in the back of the note, “Bal. Due 1900.60 plus interest as of Jan 30th, 1963.” Mrs. Hendrichs likewise testified as to that amount and due date. No bad faith on the trustee’s part is shown. Point VII is overruled.

We deem that there was no confusion as to payments on the note. Mrs. Hendrichs testified that when a payment was paid in full, she noted it on the schedule of loan reduction and signed it. The exhibits reflect that practice. Any confusion is in appellants’ records — -the receipts (which could not be related to endorsements of payments on said schedule). The burden, as stated, was upon appellants to produce preponderating evidence that they had paid beyond due dates. There was a sufficiency of evidence before the court for it to determine that issue. A hearing before a Special Commissioner would have added nothing. Appellants’ Point VIII, alleging error in the trial court’s refusal to appoint a commissioner at the end of the case, is overruled. There was no abuse of discretion in that matter.

There is no inadequacy as a matter of law of consideration of purchase bid at the foreclosure sale by Mr. Kleg. The balance on the note was $1,900.60, a second deed of trust. The first deed of trust had a balance due of $2,307. The bid was $1,500. The property had a value of possibly $8,000. Standing alone, inadequacy of bid is not a ground to set aside a foreclosure sale. See and compare Hrovat v. Bingham, Mo.App., 341 S.W.2d 365, 371 [9, 10], and footnote cases. The fact that Mr. Kleg did not credit the sale price on the note (he disclaimed any intention to sue for a deficiency judgment) does not, as appellants claim, make the sale without consideration. Should the sale have brought more than the debt, the difference would have belonged to appellants. Northwestern National Ins. Co. v. Mildenberger, Mo.App., 359 S.W.2d 380, 384 [4, 5]. Point IX is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Lonnie Dale CRANE, Respondent, v. Lionel Lansford NORTHUP, Appellant.
    No. 51933.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.

      Scott O. Wright, Columbia, for respondent, Brown, Wright & Willbrand, Columbia, of counsel.
    Terence C. Porter, Columbia, for appellant, Welliver, Porter & Cleaveland, Columbia, of counsel.
   BARRETT, Commissioner.

This action for damages for personal injuries arose out of a station wagon-motorcycle collision at the intersection of Business Loop 70 East and Business Route 63 South as they existed in Columbia on April 14, 1964. At 7:48 p. m. on April 14, 1964, the plaintiff, Lonnie Crane, lights on, was operating a 1962 Triumph motorcycle with the traffic lights in the right-hand lane of Highway 40, traveling west at a speed of 20 to 25 miles an hour. As Lonnie approached but before he entered the intersection the defendant Northup, operating a 1960 Ford station wagon made a left turn into the intersection and not seeing Lonnie negligently drove the station wagon into the side of the motorcycle pinning Lonnie’s leg between the two vehicles. In this action to recover $110,000 damages for his negligently inflicted injuries a jury returned a verdict for $45,000 and the defendant Northup has appealed presenting the single assignment of error that the verdict is excessive and as “a condition to the affirmance of this judgment a substantial remittitur should be ordered.”

Lonnie’s injuries all resulted from this collision and are interrelated but fall conveniently into three separate categories, his left leg, his left foot and emotional sexual inadequacy.

Referring briefly and to the medical evidence only, Dr. McElroy first saw Lonnie on a stretcher in emergency, and even there it was obvious that he had “a severe compounding wound of his left leg. His bones were protruding — the main bone, the tibia had protruded through the skin. There were extensive lacerations and wounds involving the leg, * * *. He also had an impaired circulation. His foot below the fracture site of the leg was cyanotic or blue, with no pulsation.” After X-rays revealing a complete separation of the ends of the tibia and a fracture of both bones extending through the soft tissue and his foot “turned around ninety degrees” the fractures were reduced with two “transfixing wires” and a large cast, hip to toes, was applied. Drains were inserted in the soft-tissue wounds, circulation was restored, no infection developed and the fractures “healed slowly.” Lonnie was hospitalized April 14, 1964 and released in his long cast on May 2. He wore the long cast ten months, using crutches. After ten months his leg was placed in a short cast, knee to toes, and for another month he used crutches. In conclusion, as to the leg injury only, Dr. McElroy said, “We haven’t got a normal leg, but we have got a good leg. It is a good usable leg. * * * First, he has got a leg that he can walk on. It is a straight leg. * * * Now, our problem — that doesn’t mean it is a normal leg, that he can go out and run up and down the street or be a track man or a football man. He has some damage to the soft tissue. He has scar formation of the leg, due to the extensive lacerating wounds and injuries he received.” As to the leg the doctor said, “He will have some swelling of that * * * he has movement of his knee and a useful leg, but not a normal one. * * * He will have some permanent damage. The scars are permanent. He will have some swelling. That will be intermittent. And he will have it. Then he will be restricted from excessive use because of some soreness of the muscles. This is all due to scarring and discomfort.”

After his leg had been in the long cast for four months or more, in August while the cast was being changed, it was discovered that his left foot was also seriously injured, fractures with “malalignment of the toes and the ball of the foot.” It was not deemed advisable at that time to do anything about the foot injury until further progress with the leg injury. X-rays of the foot revealed malalignment of the fourth toe, a fracture of the second metatarsal, a “fracture dislocation of the third, a fracture dislocation of the fourth, and what appeared to be a fracture of the fifth. Actually there is a dislocation there,” resulting in overriding. On January 29, 1965, Lonnie was rehospitalized and the fourth metatarsal was removed. Then in September there was further orthopedic surgery and the fifth metatarsal was removed, and “I took off the toe” leaving the soft tissue. In conclusion as to the foot the doctor said, “Our problem of the foot is greater. We have-some discomfort. We have some deformity. We have a loss of one toe, with a fourth toe, which is there but serving no useful purpose, except to try to fill out the front of the shoe. We are getting a little shift or valgus deformity. That is a lateral shift of the great toe.” Because of the lateral shift of the great toe, in three months to a year, another operation will probably be necessary, “removal of the prominence here, bring the toe back to a more satisfactory position, take and transplant one tendon in the foot here. That brings the toe over, and then let it heal in that position.” Further describing, the doctor said, “The foot looks good. It is a foot, but it is not a normal foot. In walking his foot gets down pretty well. His arch is pretty well maintained, but you will notice that he walks more on this type of inside and toe is going in more. * * * So we are getting a lateral drift of the big toe and we are getting a bunion deformity.” The foot was put in a brace and cuff to the knee and now he gets along with an arch support in the left shoe. As to the future, the doctor was of the opinion that Lonnie could carry on his profession of a carpenter but “He will have some limitation of use of this extremity. This can mainly, on certain types of ground and certain elevations that he has to work on— he will have to be extremely careful. Ladder work will create a problem for him. Walking on a roof will create a problem for him. Walking on the side of a hill. Now he will get along on straight ground very well or smooth floors. But he will have problems. In other words, he had some permanent disability.” At this juncture it should be noted that Lonnie is yet under Dr. McElroy’s care; “For an indefinite period of time, I will see him.”

/ Lonnie, age 28, was married in 1958 and he and his wife have a daughter age four. An internist, corroborated by Lonnie’s wife, said that as a result of his injury, the long periods of treatment and confinement of the leg in a cast he was “quite depressed, emotionally licked, tuned down” which resulted in “difficulty in his social interrelations with others, with his family, by an emotion instability, by difficulty in performing his marital activities, inability rather than difficulty. * * * Well, I think that prolonged illness, the prolonged inability to provide for his family, the need to rely on his wife’s earnings is certainly a blow to his male pride in being able to provide adequately for his family. His impotency may have been part of this, part of the result of this. The fact that he did respond to male hormones (testosterene linguets) so markedly in the improved healing may possibly point to an initial deficiency in that area. However, this particular aspect, the sexual aspect, did not improve on the administration of the male hormone. This is part of the very well-known situation with failure in males, the failure to have capability to carry on and terminate intercourse, will lead to anticipation of failure the next time, in other words, a psychologic block is interposed there which makes a man anticipate failure, therefore he will fail, and the third and fourth time would be more severe until a man simply absolutely considers himself incapable. It’s been stated by many authorities that much of the sexual capacity in humans is purely on an emotional basis.”

This subject is elaborated on and given separate attention because the doctor did not say and there is no proof that Lonnie’s sexual inadequacy is permanent. And obviously his condition in this respect is not due to a physical injury to the sex organs resulting in a permanent physical injury and permanent impotency as in Walton v. United States Steel Corporation, Mo., 362 S.W.2d 617; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; and Ramey v. Missouri Pacific R. Co., 323 Mo. 662, 21 S.W.2d 873. In short, this record does not satisfactorily establish permanent impotency (Highfill v. City of Independence, Mo., 189 S.W. 801, 804-805) although the fact as testified to by the internist, “that he was afflicted with traumatic neurashthenia and further testified that such a condition could cause the loss of sexual power” (Morris v. Union Depot Bridge & Terminal R. Co., 320 Mo. 371, 379, 8 S.W.2d 11, 14) is an injury the jury of necessity and properly considered in arriving at the final award.

Lonnie is a high school graduate and, as stated, a carpenter. After getting rid of his leg brace in March 1965, he went to work for a contractor but his employer said that, because it was difficult for him to do a lot of things, at a pay scale of $2.25 an hour rather than the regular scale of $2.75 “an hour or more.” Lonnie has difficulty climbing ladders and walking on roofs or rough terrain and his foot swells but except for time off for the foot operations has worked steadily. He is often more irritable and cross than formerly.

While in the casts and before removal of the brace Lonnie was off from work for fifty weeks and therefore lost wages of $4970.00. He owes Dr. McElroy $815.00, Boone County Hospital $1105.90, Dr. Laura Walters $20.00, Dr. John Walters $50.00, he has paid $142.90 for braces, crutches and supports and he owes $5.00 for ambulance, $55.00 to Dr. Shewe, $16.75 nursing and X-rays $70.00, thus there is a medical expense of $2280.55 and a total of special damages of $7250.55 (and this disregards any future loss due to diminished pay). Thus deducting the special damages there is an award for injuries of $37,749.45.

As indicated Lonnie’s injuries and losses are not comparable to the far more extensive injuries in Walton v. United States Steel, supra. On the other hand they are much more extensive than in some of the cases relied on by the respondent, as in Humes v. Salerno, Mo., 351 S.W.2d 749, which involved a leg injury only, or Ward v. City National Bank & Trust Co. of K. C., Mo., 379 S.W.2d 614, which involved but a foot and ankle. The injuries and losses are not comparable to Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, in which the court points out that there was no injury other than “a permanently damaged and distorted leg and a permanent limp.” In that case it was also pointed out, unlike in this one, that “Pins, wires, plates, traction, braces and crutches do not figure in his case,” and, since plaintiff was a girl of eleven, there was no loss of earnings and no medical expense and “no demonstrated loss or diminution of earning power; no demonstrated disability to earn a living or pursue normal household duties.” And so a verdict of $32,500.00, reduced by the trial court from a $55,000.00 award, was further reduced by $7500.00 in this court to $25,000.00 in 1963. But by comparison of injuries only, of that case and this, excluding special damages, there is a difference in awards of but $12,749.45 and here, of course, there is more than a leg injury. As has been said repeatedly, there is no precise formula in gauging excessiveness of verdicts, each case of necessity depends on its own facts and in observing some degree of uniformity of awards for comparable injuries “Consideration must be given the nature and extent of the injuries and losses, plaintiff’s age and his diminished earning capacity, if any, the changing economic factors and the amount of compensation awarded and approved in cases similar or of fairly comparable injuries. The ultimate test of excessiveness or of inadequacy of an award is what will fairly and reasonably compensate for the injuries sustained.” Parlow v. Carson-Union-May-Stern Co., Mo., 310 S. W.2d 877, 885. The “changing economic factors” alone are sufficient to distinguish Glowacki v. Holste, Mo., 295 S.W.2d 135, decided more than ten years ago, in 1956. Needless to say, no case involving precisely similar injuries has been cited or found, in Swinger v. Bell, Mo., 373 S.W. 2d 30, relied on by the respondent, there were special damages of over $10,000.00. The injury was to the right femur, with a permanent loss of motion in the knee, a limitation of 30 to 40%, and a permanent limp and in 1963 it was held that a $30,-000.00 verdict was not excessive. While the injuries and losses here are more numerous than in the Swinger case, there is not here the impairment of function and loss of use of members as there. Over three years have passed and there has been an enormous increase in the cost of living and a further decline in the value of the dollar but it would not equal $10,000.00 in a $45,000.00 judgment. To conclude, with a view to some degree of uniformity on the one hand and just compensation for actual losses and injury on the other hand, it rather definitely appears, considering all the indicated factors, that this judgment is excessive in the sum of $10,000.00. If, therefore, the plaintiff will, within fifteen days from the date of the filing of this opinion, file in this court a remittitur of $10,000.00, the judgment will stand affirmed as of the date of its rendition for $35,000.00. Otherwise, the judgment is reversed and the cause remanded.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Donald James FIX, Plaintiff-Appellant, v. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, Defendant-Respondent.
    No. 52143.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.

      Daniel, Raskas, Ruthmeyer & Schneider, Jerome F. Raskas and Bernard A. Ruth-meyer, St. Louis, for plaintiff-appellant.
    John S. Marsalek, Moser, Marsalek, Carpenter, Cleray & Jaeckel, St. Louis, for respondent.
   WELBORN, Commissioner.

The question here presented is whether a judgment creditor may maintain an action, under § 379.200, RSMo 1959, V.A.M.S., in the courts of this state, against the liability insurer of the judgment debtor, after the debtor had filed a voluntary petition in bankruptcy. The trial court held that, in view of the pending bankruptcy proceedings, the state court had no jurisdiction of the action. The plaintiff appealed.

Plaintiff, Donald James Fix, on April 8, 1963, obtained a $30,000 judgment in the Circuit Court of St. Louis County against Dale Ernst for personal injuries in an automobile accident. On March 31, 1964, Ernst filed a voluntary petition in bankruptcy in the United States District Court for the Eastern District of Missouri.

Plaintiff’s judgment of April 8, 1963 not having been satisfied, on May 26, 1964, he instituted this action pursuant to § 379.200, RSMo 1959, V.A.M.S., alleging that defendant had issued a policy of liability insurance which covered Ernst’s liability on the judgment within a $25,000 limit of liability. The petition sought judgment against defendant for $25,000.00.

Defendant filed a motion to dismiss this action on the grounds that, if the liability of Ernst was covered by a policy issued by defendant, which defendant denied, the alleged obligation of defendant under the policy was the property of the bankrupt estate and “sole and exclusive jurisdiction is vested in said United States District Court to determine whether any such policy exists, as plaintiff alleges, to determine all controversies with respect thereto, and to collect and distribute all sums found by the Court to be due thereunder.” Attached to the motion is a copy of the petition in bankruptcy, but the schedules are not shown in the transcript here. On the basis, of the motion, the trial court dismissed the petition, and this appeal followed.

§ 379.200, RSMo 1959, V.A.M.S., provides :

“Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death, or damage to property if the defendant in such action was insured against said loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money, provided for irt the contract of insurance between the insurance company, person, firm or association as described in Section 379.195, and' the defendant, applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and. apply the insurance money to the satisfaction of the judgment.”

There can be no doubt that, as plaintiff contends, this section gives a judgment creditor a direct right of action against the insurer. The right conferred by this section has been described as “substantive.” State ex rel. Anderson v. Dinwiddie, 359 Mo. 980, 224 S.W.2d 985, 987; State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453, 467 [20],

However, the supremacy of federal bankruptcy laws, enacted pursuant to § 8 of Article I of the Constitution of the United States, is clearly established. Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641; 9 Am. Jur.2d, Bankruptcy, § 11, p. 54. If the bankruptcy laws have caused the liability of the insurer, in a situation such as this, to be considered part of the estate of the bankrupt, § 11(a) (7) of Title 11, U.S.C.A., might well place this action within the exclusive jurisdiction of the Courts of Bankruptcy.

The respondent relies upon § 110 of Title 11, U.S.C.A., as vesting in the trustee in bankruptcy, the claim to recover the proceeds of the liability policy alleged to have been issued by respondent. The portions of § 110 relied upon are as follows:

“Sec. 110. Title to Property.
“(a) The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition * * * to all of the following kinds of property * * * (1) documents relating to his property; * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: * * *; (6) rights of action arising upon contracts, * *
“(c) The trustee may have the benefit of all defenses available to the bankrupt as against third persons * * *. The trustee, as to all property, whether or not coming into the possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”

Respondent contends that the policy of insurance would be a document relating to the bankrupt’s property, within the meaning of sub-paragraph (1) supra, because the insured had a right to sue respondent on the policy for nonpayment of a liability covered by it. See DeWalt v. State Farm Mutual Automobile Ins. Co., 8th Cir., 99 F.2d 846, cert. denied, 306 U.S. 644, 59 S.Ct. 583, 83 L.Ed. 1043. Respondent also contends that, for the same reason, the claim passed to the trustee as a right of action arising upon a contract, within the meaning of sub-paragraph (6). Respondent further contends that the proceeds of the policy are within the meaning of sub-paragraph (5) because the insurance proceeds were subject to being levied upon or sequestered, the right of the judgment creditor not being limited to the statutory procedure which appellant elected to pursue. See Lajoie v. Central West Casualty Co., 228 Mo.App. 701, 71 S.W.2d 803; Brucker v. Georgia Casualty Co., 326 Mo. 856, 32 S.W.2d 1088; Wehrhahn v. Ft. Dearborn Casualty Underwriters, 221 Mo.App. 230, 1 S.W.2d 242.

Neither party has cited a case which has involved exactly the question here presented. Appellant has been content to rely upon the Missouri statute and cases decided under it, none of which involved a situation such as this. Respondent, commendably, has called our attention to In re Fay Stocking Co., 6th Cir., 95 F,2d 961, as containing language which is contrary to its position here and which respondent would minimize as dictum. In Fay Stocking, one Helen Piggott had obtained a judgment for $18,500 against a bankrupt for personal injuries resulting from an automobile accident. She filed a claim in bankruptcy for the full amount of her judgment. While the claim was pending, the bankrupt’s insurer paid the claimant $5,000 on the judgment debt. The question was whether the claimant was a secured creditor entitled to prove only the difference between the value of the security (the insurance coverage) and the amount of her claim. In considering this question, the court stated (95 F.2d 962-963):

"Appellant contends that the bankrupt has a proprietary interest, consisting of a chose in action, in the insurance policy; that the interest is of a nature to be assignable and is property of the bankrupt which the appellee holds as security for her claim, and that the District Court therefore erred in allowing appellee to prove her full claim. He deduces this conclusion from the fact that the policy is one of insurance against liability, not one of indemnity against damage sustained by payment of a liability. (Cf. Schambs v. Fidelity & Casualty Co. of New York, 6 Cir., 259 F. 55, 6 A.L.R. 1231), entitling the insured to sue upon the policy as soon as judgment is taken, and prior to actual loss arising from payment. Ohio Casualty Ins. Co. v. Beckwith, 5 Cir., 74 F.2d 75. He contends that the insurer is subject to garnishment proceedings brought by a judgment creditor who has recovered on a claim which is covered by the policy (Employers’ Liability Assur. Corp., etc. v. Bodron, 5 Cir., 65 F. 2d 539, 540), and that therefore the assured’s interest in the policy constitutes property of the bankrupt. Under section 70(a) of the Bankruptcy Act, Title 11, § 110(a), U.S.C.A., the trustee succeeds to the rights of action of the bankrupt arising upon contracts, and hence appellant urges that appellee was secured by property of the bankrupt of a nature to be assignable.

“We question whether the bankrupt’s right to enforce this policy constituted property of the bankrupt within the meaning of the Bankruptcy Act. Even under the rule announced in Employers’ Liability Assur. Corp., etc. v. Bodron, supra, only such creditors as those whose claims against the assured arise out of personal injury covered by the policy in suit may assert a successful claim to the insurance fund, and the assured or its trustee, if either of them collects from the insurer, rests under a legal obligation to hold the funds collected in trust for the injured party. But the conclusive answer to appellant’s contention lies in the fact that appellee, after judgment, was protected by her own property right in the policy, and not by that of the bankrupt. Both the contract of insurance and the Ohio statute gave her a right of action against the insurer. The policy obligated the insurer to ‘pay and satisfy judgments rendered against the Assured’ arising out of the operation of an automobile belonging to the assured.”

We find this reasoning highly persuasive, legally and practically sound, and, in the absence of contrary authority, a sufficient answer to respondent’s position. Respondent does not question that the Missouri statute which appellant relies upon conferred a substantive right upon appellant to proceed in his own right to enforce his claim against respondent. The right of action is not derived from the bankrupt. The claim is not advanced on behalf of the bankrupt or his estate. Appellant is entitled to enforce it against the insurer in the courts of this state. See Fidelity Union Casualty Co. v. Hanson, Tex.Civ. App., 26 S.W.2d 395, affirmed, Tex.Comm.App., 44 S.W.2d 985, cert. denied, 287 U.S. 599, 53 S.Ct. 12, 77 L.Ed. 522; Gross Galesburg Co. v. Ingalls, 136 Ohio St. 450, 26 N.E.2d 440, 442; 3 Remington on Bankruptcy, § 1251, p. 118; 9 Am.Jur.2d, Bankruptcy, § 923, p. 693.

We do not agree with respondent that the question in this case was, in effect, determined in State of Missouri v. Angle, 8th Cir., 236 F. 644. In that case, the controversy was between a receiver appointed by a state court and the trustee in bankruptcy. The court found the property involved to be that of the bankrupt, and therefore to be administered by the trustee in bankruptcy. Here, the trustee in bankruptcy is making no claim. The plaintiff is merely seeking to enforce, in his own right, a cause of action given by Missouri law.

§ 110(c), supra, does not cause title to this property to be vested in the trustee because the appellant might have obtained a lien thereon. That “strong arm” provision does not enlarge upon the previous provision defining the property which passes to the trustee. 9 Am.Jur.2d, Bankruptcy, § 857, p. 637.

The judgment is reversed, and the cause remanded with directions to reinstate plaintiff’s petition.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Lloyd Eugene SHANNON, Appellant.
    No. 52471.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O’Brien, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    J. Whitfield Moody, Sloan Richard Wilson, Kansas City, for appellant.
   BARRETT, Commissioner.

Upon a charge of robbery in the first degree a jury found the appellant Lloyd Eugene Shannon guilty and fixed his punishment at ten years’ imprisonment. Very briefly as the jury could and did find the facts, about 2 o’clock on the afternoon of November 30, 1964, two unmasked Negroes, the appellant Shannon and an older man, one with a sawed-off shotgun and the other with a .38 caliber revolver, entered the second floor office of Household Finance Company at 3102 Troost and after forcing several employees to lie upon the floor took $195.95 in cash. The appellant was identified as the one who repeatedly-urged the other, when the manager was slow in opening the safe, to “Shoot him, shoot him.” One of the employees, Judith Denyer, was on the floor and the appellant “tapped me on the leg. I got up and went to the cash drawer to get the money, and then the older man took over.” As the robbers were leaving the Wirthman Building the assistant manager saw the appellant drop and then pick up his pistol from the floor and walk out. The manager followed the robbers and when they got in a 1957 white-over-yellow Mercury automobile, took the license number (1964 Kansas license, Wyandotte 46804). Less than two hours later, the defendant driving the Mercury (his brother-in-law’s) and two others were arrested. A sawed-off shotgun, a .38 caliber pistol and money were found in the car and Shannon was positively identified as the pistol-wielding robber.

Throughout the trial of his cause and here the appellant has been represented by counsel for the Legal Aid and Defender Society of Kansas City. His counsel has briefed the single claim that “the court erred in permitting the prosecuting attorney, over the objections of the defendant, to argue the degree of punishment the jury should impose upon the defendant.” What counsel means is that in its opening argument the state did not mention the punishment that should be inflicted but waited until the closing argument, too late for defense counsel to reply or answer and then over defense counsel’s objection vigorously argued for a penalty of at least 25 years’ imprisonment. The criminal rule (26.02 (7)), V.A.M.R., and statute (RSMo 1959, § 546.070(5)) governing the order of trial do not spell out just what one must or must not argue and when, and there is no point to considering the matter here. The insuperable difficulty with appellant’s contention here is that there is no assignment of error in his motion for a new trial relating in any manner to the subject of argument and therefore it is not an open question in this court. State v. Sanchez, Mo., 269 S.W. 2d 46; State v. Samis, 296 Mo. 471, 246 S. W. 956; State v. Kyle, 177 Mo. 659, 76 S. W. 1014. This is not an instance of a lack of specificity or of detail in spelling out an assignment of error (State v. Cooley, Mo., 387 S.W.2d 544) as called for by both rule and statute (Criminal Rule 27.20; RSMo 1959, § 547.030), it is a complete absence or omission from the motion for a new trial, raised only and for the first time in appellant’s brief and that does not present a reviewable question. State v. Kelly, Mo., 258 S.W.2d 611, 612. This is not an instance of such manifestly inflammatory argument as to demand action even without objection at any level (State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524), it may be that the prosecutor should disclose the points on which he relies and thus give his adversary a fair opportunity to answer (23A C.J.S. Criminal Law § 1089, p. 125), but at some stage it is inevitable if not his duty that the prosecutor will argue the punishment (State v. Honig, 78 Mo. 249) and to permit the argument of punishment in final argument when not mentioned in the state’s opening presentation is not “plain error” (Cr. Rule 27.20(c)) and a manifest abuse of discretion. State v. Feger, Mo., 340 S.W.2d 716, 723.

This is the only point presented by the public defender and since it is not an open question in this court 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: DONNELLY, Judge.

text:
    Joseph C. TATE, Appellant, v. Pat Joseph GIUNTA, Respondent.
    No. 52137.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for appellant.
    John C. Russell, Kansas City, for respondent.
   DONNELLY, Judge.

In this jury-tried action for damages resulting from a vehicular collision in Kansas City, Missouri, which occurred on May 27, 1964, plaintiff Joseph C. Tate received a verdict in the -amount of $30,000. Defendant Pat Joseph Giunta filed a motion for new trial which was sustained by the trial court. Plaintiff appealed.

The determinative question is whether the trial court was justified in sustaining defendant’s motion for new trial on the ground that the court, on voir dire examination, erroneously denied defendant’s challenge for cause of juror Charles A. Blackburn. The record in this regard reads as follows:

“CHARLES A. BLACKBURN, having been previously sworn, testified:
EXAMINATION BY MR. RUSSELL:
Q Mr. Blackburn. A Yes, sir.
Q You stated that you had been injured in — ten years ago, was it?
A Yes; my back.
* * * * * *
Q And how long did that back continue to bother you ?
A Well, it’s never really cleared up.
Q Still bothers you on occasion? A Comes and goes. I mean if I lift something wrong, why, I could get — have trouble with it, and I go back to the chiropractor for maybe two or three times and it is all right again.
Q When was the last time you went to a chiropractor ?
A About a month ago.
Q Because of this old injury? A No, I go every so often anyway, I go back for treatment.
Q Any specific reason that you go back?
A Oh, if it goes to bothering me a little bit or something I might have a treatment or two and that will be all for quite a while.
Q That is the reason, then, you are going back to the chiropractor is because of the back? A Yes.
Q Well, now, Mr. Blackburn, you feel that the fact you have this back injury that has been — that’s lingered on all this time, and if there’s evidence in this particular case that the plaintiff has sustained a back injury—
A That’s the reason. I didn’t think of it until the last and I didn’t have a chance to tell you.
Q Would that influence your thinking in this case?
A I don’t believe so. I believe I could hear the evidence and weigh it.
Q You think you could divorce the pain that you have undergone and experienced in your back as completely different or apart from his, or would you associate that in any way?
A I don’t believe I would associate it in any -way, because I don’t believe you can actually tell what somebody else is doing in pain or something like that.
Q You don’t feel that the back injury that you sustained would in any way influence you ? I mean — I’m talking about a hair’s breadth now, one way or another. If it would, say so.
A Well, like I say, you never know for sure, I mean there’s nothing positive; you would have to weigh the evidence and everything on a case.
THE COURT: Nobody is asking you to say how you would decide this case. All we want to know is whether you would be influenced by your own experience in any decision.
THE WITNESS: Well, personally I think you would still, would have a small amount, yes, because if you have actually went through something, why, if you can remember back, why, it stays in your mind.
MR. RUSSELL: I would ask, then, sir, this juror be excused for cause.
EXAMINATION BY MR. BLUMER:
Q The question, as I understand the law anyhow, is whether or not you could hear the evidence that would be developed at this trial, weigh the medical testimony offered on each side, listen to the Court’s instructions, and then render a verdict fair and impartially to both sides, absent any feeling that you have already developed favorable to one side or the other. Now, can you do that or not ?
A Well, I believe so, but I still think that you still have a little there that you can remember back to something like that.
Q I don’t think it is necessary that you be called upon to forget your own experiences because we all carry those with us, even in the jury room, but the question is can you fairly and truly decide the case between these parties based on the evidence.
A I believe so.
THE COURT: I think the sum total of this witness’ statements, a very candid statement, that like all of us he has certain things in his experience that makes him understand certain things more than something that he hasn’t experienced, but he says that he can judge this case by the evidence that is on the stand and determine it according to that evidence and the instructions of the Court. Therefore, he will remain on the panel.”
Defendant’s motion for new trial reads in part as follows:
“4. Because the Court erred in overruling Defendant’s Motion that juror, Charles A. Blackburn, be discharged for cause during the voir dire (thereby necessitating Defendant using one of his strikes in order to keep this prejudiced juror from serving on the panel) on the grounds that he would have been biased and prejudiced against the Defendant due to his having had a serious back injury of ten years duration, same never having completely healed and, upon his own admission, that the factor of his back having been hurt and the pain still produced from it would enter into and/or affect his thinking and/or judgment in the matter at hand if he were kept on the jury panel, * *

The trial court entered the following order: “Defendant’s Motion for New Trial is sustained on grounds 4 and 7 of said Motion.” We need consider only ground 4 of the motion for new trial on this appeal.

The rules to be considered in our determination of the question presented are well settled. “Trial courts have wide discretion in passing on motions for a new trial where there is error in the record but the power of the trial court to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of issues of fact.” Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 995, 125 A.L.R. 674. Questions concerning the qualification of jurors are “questions of fact and matters affecting the determination of issues of fact,” and involve the exercise of a discretionary power. Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643; Moore v. Middlewest Freightways, Inc., Mo.Sup., 266 S.W.2d 578. If the trial court in the exercise of its discretion grants a new trial on a discretionary ground, such discretion will not be interfered with unless abused. Reich v. Thompson, 346 Mo. 577, 142 S.W. 2d 486, 129 A.L.R. 795; Moore v. Middlewest Freightways, Inc., supra. When a motion for new trial is sustained an appellate court will be more liberal in upholding the action of the trial court than when the motion is denied. Reich v. Thompson, supra; Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563.

“The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean, as this court has said, ‘the right to a fair and impartial jury.’ ” Lee v. Baltimore Hotel Co., 345 Mo. 458, 463, 136 S.W.2d 695, 698, 127 A.L.R. 711. In Murphy v. Cole, 338 Mo. 13, 19, 88 S.W.2d 1023, 1024, 103 A.L.R. 505, we said: “If for any reason, whether statutory or not, a prospective juror is not in a position to enter the jury box with an open mind, free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court’s instructions, he is not a competent juror. * * * Both parties to a lawsuit are entitled to a panel of eighteen qualified men from which to select a jury. * * * ”

In Theobald v. St. Louis Transit Co., 191 Mo. 395, 417, 418, 90 S.W. 354, 359, we said: “ * * * The question of the qualification of a juror is a question to be decided by the court, and not one to be decided by a juror himself. It is the prerogative and duty of the trial court to exercise a wise, judicial discretion in this regard, and the conclusion of the court should rest upon the facts stated by the juror with reference to his state of mind, and should not be allowed to depend upon the conclusions of the juror as to whether or not he could or would divest himself of a prejudice he admitted existed in his mind. And this is true whether the prejudice exists against either of the parties or against the character of the subject-matter in litigation, or against either of the parties as a class, and not against the party as an individual. It is proper to examine a juror as to the nature, character, and cause of his prejudice or bias, but it is not proper to permit the juror, who admits the existence in his mind of such prejudice or bias, to determine whether or not he can or cannot, under his oath, render an impartial verdict. Such a course permits the juror to be the judge of his qualifications, instead of requiring the court to pass upon them as questions of fact.”

Plaintiff recognizes that had the trial judge sustained the challenge for cause when made on voir dire examination, such ruling would not be disturbed unless clearly and manifestly against the evidence. However, he questions whether, in considering the motion for new trial, the trial judge may again exercise his discretion and hold that he acted erroneously in the first instance. Plaintiff in effect contends that a trial court, in considering a motion for new trial, may set aside a verdict only when he finds he abused his discretion at the trial. We do not agree.

Of course, a verdict may not be set aside “without the showing of some legal ground affording proper basis for such action.” Kirst v. Clarkson Construction Company, Mo.App., 395 S.W.2d 487, 500. However, we have long recognized that a trial judge is in a better position, than any appellate court could possibly be, to determine whether anything occurred at the trial which interfered with the administration of justice fairly and impartially between the parties. When a trial judge, in the exercise of his discretion, is convinced of his own error, and there is legal ground in the record for such belief, he should grant a new trial. We then interfere only if it appears that he has abused the discretionary power vested in him.

The trial judge, in the exercise of his discretion, granted a new trial on the ground that he had erroneously denied the challenge for cause of juror Blackburn. In Rose v. Sheedy, 345 Mo. 610, 134 S.W.2d 18, cited by plaintiff, this Court set aside an order granting a new trial. In the Rose case this Court found an abuse of discretion because on the record there was no legal justification for the action taken by the trial judge. It is not in point. A new trial was granted here on a legal and discretionary ground. The parties agree that plaintiff’s complaints at the trial related primarily to back injuries he claims he sustained in the collision. The trial judge concluded that juror Blackburn would have been influenced by the back injury he had sustained which had “never really' cleared up.” We find no abuse of discretion on the part of the trial judge in granting a new trial. On the contrary, we think the trial judge did what he should have done when convinced of his own error.

The order granting a new trial is affirmed.

All of the Judges concur.