author: HOUSER, Commissioner.

text:
    Michael Scott LEMM, pro ami et al., Respondents, v. Ida GOULD and Dan Gould, Appellants.
    No. 53018.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1968.
    Motion for Rehearing or to Transfer to Court in Banc Denied March 11, 1968.

      Fred J. Freel, Norman O. Sanders, Claude L. Schenck, Kansas City, for respondents; Sheridan, Sanders, Millin, Peters, Carr & Sharp, Kansas City, of counsel.
    William H. Sanders, Dean F. Arnold, James Borthwick, Max Bagby, Kansas City, for appellants; Blackwell, Sanders, Math-eny, Weary & Lombardi, Bagby, Benjamin & Winston, Kansas City, of counsel.
   HOUSER, Commissioner.

Michael Scott Lemm, a child three years and ten months of age, was injured when he climbed through an opening between a baluster and a wooden column and fell to the ground from the front porch on the fourth floor of an apartment building in Kansas City. Michael sued Ida and Dan Gould, alleged owners of the building, in Count I for $250,000 damages for personal injuries. Michael’s parents sued the Goulds in Count II for $100,000 damages for loss of Michael’s services. From a judgment against both defendants, entered upon a jury verdict for plaintiffs for $179,000 on Count I and $12,000 on Count II, both defendants have appealed.

Michael climbed through the opening between the last baluster and the square wooden column (the right-hand side of the photograph):

Plaintiffs’ petition alleged that the porch was under the control of defendants and charged negligence in (1) failing to repair the baluster so as not to leave an opening through which Michael could pass; (2) installing wire fence from the top rail of the baluster to within 2-3 feet of the ceiling instead of extending it to the floor of the porch, thereby permitting an opening to continue to exist through which Michael crawled and then fell; (3) repairing so as to create a hidden defect, namely, an opening of sufficient size for Michael to crawl through; (4) permitting said hidden defect and hazard to exist over a long period of time and in failing to notify or warn plaintiffs thereof; (5) failing to make a thorough inspection of the porch after repair work was completed and failing to make periodic inspections thereof.

Plaintiffs’ case was submitted to the jury by Instructions Nos. 2 and 4 (MAI No. 22.05, modified), which were identical except that No. 2 submitted the case as to defendant Dan Gould and No. 4 submitted the case as to defendant Ida Gould, as follows:

“Your verdict must be for the plaintiffs Michael Scott Lemm and Mr. and Mrs. Lemm and against the defendant_Gould if you believe:

“First, there was a relationship of landlord and tenant between_Gould and Mr. and Mrs. Lemm regarding the 4th floor apartment, and
“Second, one half of an upright or baluster was missing from the porch railing and as a result the porch was not reasonably safe, and
“Third, the porch was in the possession and control of defendant_Gould for the purpose of making repairs, and
“Fourth, defendant_Gould knew or by using reasonable care should have known of this condition, and
“Fifth, defendant_Gould failed to use ordinary care to make the porch reasonably safe, and
“Sixth, as a direct result of such failure, plaintiff Michael Scott Lemm was injured.”

Appellants’ point of chief insistence is that the court should have directed a verdict for defendants, and erred in submitting the case to the jury under Instructions Nos. 2 and 4 on the theory of partial reservation by defendants of control over the porch, because the premises, including the porch, were demised to the tenants for their exclusive possession; that a landlord is not liable for injuries caused by defects in premises demised to a tenant for his exclusive possession; that an agreement to make repairs does not constitute the possession or control on the part of the landlord necessary to make the latter liable; and that defendants had no duty to alter the slightly wider spacing of the corner baluster in the railing on the private porch appurtenant to the Lemms’ apartment.

Considered in the light most favorable to the prevailing parties, the plaintiffs, the jury was warranted in finding these facts bearing on the question of control over the porch:

The 4-story apartment building, located at 1207-1209 Admiral Boulevard, faces north.. There are two apartments on each level. Each of the eight apartments has a front porch. At the corners of each porch large wooden columns are located. Wooden railings 30 inches high extend from the front of the building to each of the columns and between the columns. The railings, or banisters, are supported by wooden balusters. The balusters are shaped like an hour glass. The base and top of each baluster are 3½ inches square. The balusters are spaced three inches apart. The maximum distance between the balusters (measured at their narrowest points) is 5 inches. In 1956 the porch was repaired and remodeled by an independent contractor. The wooden column on the northeast corner of the porch of the apartment later rented to the Lemms (fourth floor east) was boxed in (made square instead of round). This enlarged the column. As a result it was necessary to remove one upright baluster. It was not replaced. As a result the space between the edge of the column and the first baluster was increased from 3 to 5 inches, and the space between the narrowest part of the baluster and the column was increased from 5 to 6½ or 7 inches. It was through this opening that Michael passed. This opening could have been reduced by sawing an upright baluster in half and attaching the sliced-in-two baluster to the boxed-in column, but this was not done. An architect testified that the manner in which the work on the porch was done was crude and rendered it unsafe for small children; that it could have been made safe by firmly securing the wiring to th'e porch floor, by installing a solid railing or by replacing part of the missing baluster. A 9-year-old girl was able to put her head in the space between the first baluster and the base of the column.

Michael’s parents rented the apartment for $20 a week, which was to include furniture, all utilities and all repairs. “Anything that would have to be replaced would be replaced. * * * Any repairs that would come up. They [the Goulds and the resident manager] kept a separate key and they gave [the Lemms] one key and they kept a separate key for themselves in case there would be any emergency like a water pipe or gas pipe or anything like that — something would break or something [when the Lemms] weren’t at home they still could enter the apartment.” The Lemms were advised by the resident manager that “they” would use this key to enter the apartment “to do any repairs they might, think necessary.” Keys to the various apartments were kept on a keyboard. The Lemms moved in on April 12, 1963. The family consisted of Nathan and Mamey Lemm and their children. Michael was then 21/2 years old. During the rental negotiations Mrs. Lemm noticed that the front porch of the apartment on third floor west was protected by wire screening strung between the columns. The rental agent agreed that the porch on four east would be made safe; that “as soon as possible” wiring would be put from about a foot from the ceiling to the floor of the porch, the same way that three west was wired, “and this wire would reach all around the porch” to “make it safe for the children to play.” There was no yard at the apartment building in which children could play. Although complaints were made to the manager of failure to install the wire on the porch, nothing was done until May or June, 1964, more than one year after the Lemms moved into the apartment, when wire screening was put in place on the Lemms’ front porch. It ran from the top of the wooden railing to a point 2 or 3 feet below the ceiling. The space between the top of the railing and the floor was not covered by the wiring. Mr. Gould and a helper put the wire up without asking Mrs. Lemm how she wanted the wire. Mrs. Lemm complained to the manager that they had not put up the wire like they said they would. The manager later said that she tried to reach Mr. Gould but “it was very hard to locate him.”

Between April 12, 1963 and the date of the injury to Michael (July 7, 1964) Dan Gould replaced a broken window, repaired rat holes under the kitchen sink, replaced a couch that was worn, sprayed bug powder around the baseboard and crevices, and installed the wire screening. The window repair and the spraying were done while the Lemms were away from the apartment. Mr. Gould used a key to gain entrance to the apartment on these occasions, and did not announce his coming. Four or five days before the window was replaced Mrs. Lemm notified Mr. Gould about the broken window and he said that he would fix it as soon as he could. When the wire screening was installed on Lemms’ front porch Mr. Gould gained access to the porch through the adjacent apartment (fourth floor west), which was vacant, and by climbing over the railing which divided the front porch in two.

' Plaintiffs seek to recover under the rule that “a landlord is under a duty to exercise ordinary care to keep the portions of the premises which he retains in his control is a reasonably safe condition for the use intended and is liable for damages for personal injuries resulting from his failure to perform that duty.” Peterson v. Brune, Mo.Sup., 273 S.W.2d 278, 280 [1]. Plaintiff’s theory is that defendants retained control of the porch for the purpose of making repairs in order to make it safe for the Lemm children to play on, and therefore defendants were duty bound to make the porch reasonably safe for the use of Michael.

The possession or control which"'' •must be shown in order to make a landlord liable under this rule is not to be found merely in the obligation of the landlord to make repairs or the right to enter the premises. Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102, 106 [3]. There must be something more — some additional fáct or facts from which a jury could infer that under the agreement the tenant gave up and surrendered his right to exclusive possession and control and yielded to the landlord some degree or measure of control and dominion over the premises; some substantial evidence of a sharing of control as between landlord and tenant. In order to be bound to keep the premises in a reasonably safe condition the landlord need not have reserved such a degree of control as to be entitled to admit or exclude others from the premises. It is sufficient that he retained a general supervision over the premises for a limited purpose such as the making of repairs or alterations, and the right to enter the premises and make repairs upon his own initiatmj and responsibility.

There were sufficient facts in evidence to entitle the jury to draw the inference that these landlords were vested with this degree of control and dominion over the premises. In addition to the agreement to repair and replace, the landlords retained a key to the apartment not only for emergency uses but also to use to enter the apartment “to do any repairs that they might think necessary.” This gave them the right to make repairs on their own initiative and responsibility, without obtaining the consent of the tenants. This carried with it the implied right to enter for the purpose of inspecting the premises to determine what repairs were necessary. This reservation of right was not alone for the benefit of the tenants but enured to the benefit of the landlords because it entitled them, during the rental period, to take whatever action in the field of repairs and replacements deemed necessary to prevent waste and to protect their reversion-ary interests. Along with this right and benefit goes the correlative responsibility to keep the premises in reasonably safe condition for the use intended.

Illustrating and emphasizing the fact that the landlords reserved this degree of control there is the further fact that the landlords actually made repairs and replacements prior to the injury, pursuant to the agreement. A legitimate inference from the evidence is that it was agreeable with the tenants for the representative of the landlords to use the retained duplicate key to gain access to the premises, in the absence of the tenants from the apartment, without seeking or gaining their permission prior to their entry, and to make such repairs (the window, and the installation of the screening on the porch) or perform a service (spraying for bugs) without consulting the tenants. There is no evidence of any objection on the part of the tenants to this practice. From their apparent acquiescence it can be inferred that the landlords’ free access to the premises for these purposes was part and parcel of the understanding and agreement between the parties.

Tucker v. Taksel, Mo.App., 345 S.W.2d 385, is a case in point. There was an agreement to repair. The landlords kept a key to each apartment, which was occasionally used to enter for the purpose of decorating, replacing fuses and plumbing. The landlords made all repairs inside and outside the building. They repaired furniture, plaster, plumbing, porches, windows and window sills “or anything else.” Plaintiff was injured by falling through an open, un-screened window, the sill of which had deteriorated. The landlords replaced the window sill. Plaintiff’s theory was that the landlords had not surrendered full control of the premises to the tenant but had retained partial control for the purpose of making repairs; that the landlords were obligated to make the repair and having failed to do so were liable for resulting injuries. The St. Louis Court of Appeals held that “* * * such an agreement, coupled with retention of a duplicate key and the making of such repairs [before and] after a casualty, might well give rise to an inference that the owner did reserve partial control for the purpose of making such repairs.” 345 S.W.2d, l. c. 387.

In De Clara v. Barber Steamship Lines, 309 N.Y. 620, 132 N.E.2d 871, the landlord agreed, upon notice, to make repairs; had the right at any time to examine the premises and make repairs, and maintained watchmen and a maintenance crew for the purpose of making repairs. The landlord was held to have had such control of the premises as to render the landlord liable in tort to a third person for injuries sustained as a result of the landlord’s failure to repair, the court saying, 132 N.E.2d l. c. 876:

“In the case before us, however, there is much more than such a covenant [to repair]. Not only by the lease which it made with the tenant, but by the practice and procedure actually followed, defendant landlord kept and retained a general supervision over the premises. Besides agreeing to repair upon notice, defendant reserved ‘the right at any time’ to go upon the demised property, inspect it and ‘make such repairs and alterations as it shall deem necessary for [its] safety and preservation.’ The large degree of control which this provision reflects is further accentuated both by the fact that the tenant had neither the right nor the duty to repair the premises and by the fact that the landlord had its own watchmen to guard and police them, as well as its own superintendent of maintenance and a crew of 20 men to inspect them, spot the defects and make needed repairs.”

In Puleo v. Rua, N.Y.Sup., 141 N.Y.S.2d 156, 158, a similar ruling was made in a similar factual situation, as follows:

“The proof further establishes that the defendants, by the original lease, had reserved unto themselves a right of entry at any time during the term for the purposes of inspection, repairs and to send workmen in for the making of repairs. * * * While the reservation of the right in the landlord to enter and make repairs may not of itself be sufficient proof to establish control of the premises or impose a liability in tort to the tenant, I am satisfied upon the proof adduced that defendants had on occasions actually made some repairs. These facts, coupled with the reservation of entry to repair and the evidence as here disclosed, are sufficient for the finding that defendants were obligated to make the required repairs to the banister and handrail of which complaint is here made. That defendants had sufficient and adequate notice of such condition is adequately established. Moreover, the defendant Frank Rua admitted that a day or so after the accident he entered the premises, removed the remnants of the old rail and constructed a completely new handrail and banister of new lumber supplied at defendants’ own expense; that he asked no permission of the plaintiffs to do so but that defendants acted on their own initiative; that plaintiffs were not even present when the repair was made. I am persuaded that such conduct on the part of the defendants indicated such conduct on the part of a landlord as indicates the reservation of the right to make repairs at his own discretion with leave of the tenant, and evidenced such a degree of control and reservation over the premises on the part of the landlords as imposes on them the obligation and duty of maintaining the premises in a safe condition and making the required repairs.”

In Crowe v. Bixby, 237 Mass. 249, 129 N.E. 433, the landlord agreed “to keep the place in repair and safe to live in.” Repairs were actually made inside and outside the building, and in the cellar. The court held that under the evidence the jury could have found that under the contract “the defendant retained such possession and control of the premises as was necessary to make the needed repairs,” and that “he was bound to keep them in a reasonably safe condition to the same extent as he was obligated to do so in the case of those parts of the building used in common by the tenants.”

Our conclusion is that under the law defendants had a duty to maintain the porch in a reasonably safe condition for the use intended.

Defendants contend, however, that there was no duty on their part to replace the missing upright corner baluster in the porch railing; that neither of them had actual notice of the slightly different spacing between the column post and the first baluster and the spacing between the other balusters, and that neither can be charged with constructive notice.

Whether maintenance of the porch with a 6½ to 7-inch space between baluster and column constituted maintenance in a reasonably safe condition for the use intended was a question for the jury. On the question of notice, it was plaintiffs’ burden to show that defendants had notice, actual or constructive, of the alleged defect in the porch. Peterson v. Brune, supra, 273 S.W.2d, l. c. 282 [5]. There is no evidence that Dan Gould or his wife had actual knowledge of the wider spacing, “but in fixing [their] liability [they are] to be charged, not alone with what [they] actually knew, but also with what [they] might have known by the exercise of due diligence on [their] part to have inspected the railing in the observance of [their] duty of keeping it in a reasonably safe condition for the use and purposes for which control over the porch had been reserved in [themselves] as landlord[s].” Buchanan v. Wolff, Mo.App., 105 S.W.2d 26, l. c. 29, 30 [6]. See also Udden v. O’Reilly, 180 Mo. 650, 79 S.W. 691, and Miller v. Geeser, 193 Mo.App. 1, 180 S.W. 3, 7, wherein it was aptly said: “Either actual knowledge of the defective condition of the railing, or such knowledge as the law implies by the facts and circumstances in the case, is sufficient to charge the landlord; it is not essential that he have actual knowledge.”

There was sufficient evidence from which a jury could find that Dan Gould (and therefore Ida Gould) had constructive knowledge of the condition. _.i 1956, after the Goulds acquired the property, Dan Gould contracted with United Construction Company to remodel the porch. The contractor removed the baluster nearest the column and failed to replace it, or half of it, so as to preserve the same distance between baluster and new square post as existed between the other balusters. They left a space 5 inches wide at top and bottom instead of the 3-inch width between the others, and 6 to 7½ inches wide at the widest point, instead of the 5-inch width between the others. The increased space thus left was wide enough to enable a small child to pass through. The space where the baluster had been removed was painted over lightly. After the work was done in 1956 Dan Gould gave the porch “a quick look”; he “glanced” at it. There was no change in the balusters between 1956 and the date of injury, except for painting. Approximately one month before the accident Dan Gould and a helper installed the wire screening on the porch. In so doing they attached the bottom of the screening to the banister, which necessarily brought them face to face with the condition. From this. evidence the jury could fairly infer that a reasonably careful inspection of the banister, balusters and post would have revealed the unusual and wider spacing, and in view of the object and purpose of their doing the work (installation of wire screening to make the porch safe for children) such an inspection would have suggested to any reasonable person that this space was dangerously wide and needed to be reduced. The question of notice was properly submitted to the jury.

The next question is whether defendant Dan Gould, having- disposed of his title to the property and therefore no longer having a reversionary interest, was a landlord subject to liabilities as such — whether, notwithstanding his lack of title, he can be held as a landlord on the theory that he was in control of the building. The apartment building property was deeded to Ida Gould and Dan Gould in 1951, at which time they both signed a note and deed of trust thereon. Later in 1951 the Goulds transferred their title to Max Walters, Ida Gould’s brother. Two years later the brother deeded it back to Ida Gould alone, not to Ida and Dan Gould jointly. Income from the property from date of purchase to date of trial was deposited in a joint bank account in the names of Ida Gould or Dan Gould or Max Walters. Money from this joint account was used to make payments on the encumbrance. Dan Gould wrote approximately 50 checks on this account relating to this property. The utility accounts (gas, water, electricity) stood in his name alone and he guaranteed their payment. Since 1953 Dan Gould and Ida Gould filed joint income tax returns reporting the income from the property as a one-half interest in the property. The returns showed Dan Gould’s occupation was that of apartment house manager. Through the years Dan Gould occasionally collected the rents and gave receipts in his own name. He alone signed the contract in 1956 for the repair and remodeling of the front porches. He did all of the maintenance work on the property after 1951 (for which he was not compensated on an hourly or monthly basis). Ida Gould kept the books. Dan Gould testified that whatever interest he had in the property in April, 1951 he still had that same interest on July 7, 1964.

“[Ojne in possession and control of real estate may be liable for injury to a tenant through failure to make repairs, although he does not have the legal title. The view is taken that liability depends upon who has possession and control, rather than upon mere ownership.” 32 Am.Jur. Landlord and Tenant, § 649. In Lindsey v. Leighton, 150 Mass. 285, 22 N.E. 901, the title to the premises was in defendant’s wife, but defendant assumed to be the owner and conducted himself as such, both before and after the accident, and as such contracted with plaintiff, a tenant. The court held that it was a question of fact whether the relation of landlord and tenant existed between the parties; that the actual ownership of the premises is only -one element for consideration in determining this question; that one may be a landlord who is not an owner, and that a landlord cannot escape his obligations by showing that he has no legal title. From the evidence of defendant Dan Gould’s knowledge of the property, his close identity with its management, his legal possession and general control of the building, and his acting like a landlord, it may fairly be said that he assumed the duties and responsibilities of a landlord. A jury could find that he was in fact a landlord. In such case it is no defense that he has no legal title. In addition to the authorities cited above see Annotation “Liability of one exercising the rights of an owner of realty for injuries due to its condition, as affected by want of legal title,” 130 A.L.R. 1525 and Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313, 62 A.L.R.2d 1211.

The other question is whether there was substantial medical evidence that Michael’s mental condition after the injury was caused or aggravated by the fall. Defendants claim that Michael was mentally retarded before the fall; that there was no substantial evidence of aggravation of that preexisting condition, and that the evidence did not “rule out the fact that the present mental condition was not the natural development of the prior retardation.”

This point is not well taken. Considering the evidence in the light most favorable to plaintiffs a jury could find these facts: Although at age 3 years 10 months he had not developed normally, was a “slow developer,” had “developmental retardation” and his speech development had been delayed, he nevertheless was slowly progressing. There was a good possibility that but for the accident he eventually would have reached a normal level of development, perhaps slower and later than normally to be expected, but he would have continued to progress. Before the- accident he did not have “spells” or epileptic seizures and was not suffering from any brain damage. In the fall he received a broken leg, a broken mandible, a badly contused eye, and a skull fracture at the base of the brain * * * a very severe head injury. There was bleeding in the middle ear and in his nostrils. He was unconscious for 40 hours. The tissue of the brain was bruised. Severe scarring occurred in the healing process, of the kind that prevents the development of the brain and results in regression, actual loss of developmental functions, and the arrest of emotional development.

After the fall Michael was a severely retarded, epileptic child. A few months later he developed almost daily spells in which he would appear to be in a daze and would move in one direction and then another. His history and electroencephalogram tests indicated epilepsy. Two doctors were of the opinion that he had epilepsy. He was under medical treatment for that disease. He regressed. At age 5 the child was actually below his developmental level at age 3. A competent neurologist gave his opinion that based upon reasonable medical certainty the “present state of severe mental retardation unequivocally is related to the severe head injury that he sustained in 1964”; that this condition is permanent, that no improvement could be expected, and he recommended institutional care. Another medical doctor, a psychiatrist, who examined and tested Michael after the injury gave a diagnosis of organic brain syndrome, organic brain damage with posttraumatic epilepsy. He described it as damage to the structure of the brain because of direct injury to the tissues of the brain itself, with scar tissue resulting from bleeding or tissue destruction, which can produce discharges of electrical activity in the brain which will bring about behavior disorders, unconsciousness or convulsions. It was his opinion “to a reasonable medical certainty that this — these conditions are the result of this injury * * * this fall.” It was his opinion that there would be no regeneration of the destroyed brain; that work or employment is an impossibility for Michael and that he is so severely incapacitated that he needs institutional care. His prognosis is very grave. He will not get better. It is quite possible that he will get worse.

There was sufficient substantial evidence to submit to the jury the question whether Michael sustained brain damage and epilepsy as a result of the fall. Conlon v. Roeder, Mo.Sup., 418 S.W.2d 152 [2]; Waterous v. Columbian Nat. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456, 459[3]; Dolan v. D. A. Lubricant Co., Mo.App., 416 S.W.2d 40, 43-44.

Defendants seize upon excerpts from the neurologist’s testimony in which he said there was a “good possibility” that but for the accident Michael would have reached a normal level of development but that “[ojbviously [he could not] be certain because no one can,” and this final question and answer at the end of his examination: “Q. In fact, this condition could have developed whether the boy fell off the porch or not? A. It could because anything can happen.” On this basis they contend that this case falls within the statement in Kimmie v. Terminal R.R. Ass’n, 334 Mo. 596, 66 S.W.2d 561, that assurance of possibility is not sufficient to make a submissible case upon the issue of cause and effect; and contend that the expert’s opinion must have probative support to rise above speculation and conjecture, Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 853, and that the •evidence left the jury to speculate upon which of two possible causes was responsible for Michael’s postfall condition, citing Soso v. Atlas Powder Co., C.A. 8, 238 F.2d 388, 393-394.

The neurologist’s substantial evidence on causation heretofore outlined ■was not rendered self-destructive by these excerpts from his testimony. He testified to more than an assurance of possibility. He gave his opinion based on reasonable medical certainty. Absolute certainty is not required. Kimmie and Gaddy are not helpful for the same reasons given in the analysis of those cases in Schaefer v. Rechter, Mo.Sup., 290 S.W.2d 118, 123. Soso is not in point because there the evidence showed only that the two hypotheses were scientifically possible. In addition to the neurologist’s testimony there was the positive testimony of the psychiatrist on causation based on reasonable medical certainty. The psychiatrist’s testimony alone would have been sufficient to make .a submissible case on causation. We are satisfied that sufficient causal connection was shown to justify the submission of •epilepsy and mental retardation as elements ■of damage.

During voir dire examination venireman Smith, under interrogation by counsel for plaintiffs, stated that his son had been in a car accident “and the insurance company is being sued hut it hasn’t yet come to trial.” Plaintiffs’ counsel then asked this question: “So he is a defendant in his ■case like Mr. and Mrs. Gould are in this ■case, is that correct?,” to which Smith •answered “Yes, sir.” Defendants moved to ■discharge the panel on the ground that ■counsel’s question equated the status of the ‘Goulds with that of Smith’s son. The judge did not so take the meaning of counsel’s question and denied the motion. Defendants contend that the remark was made in bad faith “because plaintiffs’ attorney knew that any insurance coverage was limited to $10,000, or one thirty-fifth .of the amount plaintiffs sued for”; that this was an endeavor to inject prejudicial matters into the trial; that to the panel the remark could only mean that these defendants had only a nominal interest at stake and were fully protected by insurance, and that its purpose and effect were to divert the issues from that of fault to considerations of comparative wealth.

While the question as framed was unfortunate we find no inherently prejudicial vice in it. Defendants did not claim prejudice at the time. The court did not draw the inference drawn by defendants’ counsel. The question was one within the sound judicial discretion of the court. No manifest abuse of that discretion or probability of injury to defendants was shown.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Special Commissioner.

license: Public Domain

text:
    JEFFERSON SAVINGS & LOAN ASSOCIATION, a Corporation, Plaintiff-Respondent, v. Adrian AGUADO, Olga Aguado and Esther Moser, Defendants-Appellants, ARMAND L. LIND, INC., a Corporation, and Harry Chadwell, Third-Party Defendants.
    No. 52737.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Everett Hullverson, Hullverson, Richardson & Hullverson, Carroll C. Gilpin, Tralles, Hoffmeister & Gilpin, Eugene Portman, Portman & Portman, St. Louis, for appellants.
    Henry Ebenhoh and Walter S. Berkman, St. Louis, for respondent.
    Henry F. Luepke, Jr., Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for respondents (third party defendants).
   HYDE, Special Commissioner.

Action for specific performance of a contract to sell certain real estate in the City qf St. Louis. Defendants filed a counterclaim against plaintiff for $25,000.00 compensatory damages and $100,000.00 punitive damages, based on filing lis pen-dens by plaintiff. Defendants also filed a third party petition against Armand L. Lind, Inc., the real estate broker in the transaction and its employee, Harry Chad-well, to have the contract of sale declared void for alleged fraud and misrepresentation in obtaining it. The court found all issues for plaintiff, dismissed defendants’ counterclaim and third party petition, ordered a deed executed to plaintiff by defendant Moser or on failure to do so ordered title vested in plaintiff. Defendants have appealed from this decree.

Defendants Aguado were owners of residence property in St. Louis where they lived with defendant Esther Moser, the sister of defendant Olga Aguado. In 1964, the Aguados conveyed the property to Miss Moser and this deed was recorded. Miss Moser lived with the Aguados and worked in Mr. Aguado’s typesetting company. They said they conveyed title to her on the advice from a real estate company that it would be good business to do so. However, on January 11, 1965, the Aguados signed a document called a listing contract designated as “Authority to Sell Real Estate”, giving exclusive authority for six months to Armand L. Lind, Inc., hereinafter called Lind, to sell their residence for $70,000.00. Lind also had authority to sell the adjoining property of Mrs. Ada Jenkins and put up a sign advertising these two properties were for sale. The area was zoned for multiple housing and Lind’s salesman, Harry Chadwell, who dealt with the Aguados, told them they could get more if the buyer could build multiple units. The Lind sign stated the property could be used for multiple family housing. It also appears there were nursing homes in the area. The Aguados were members of the River Bluffs Association with 20 or more other neighbors, which was for the purpose of maintaining the neighborhood. Over a period of 14 years Mr. Aguado said he attended about one meeting a year. The last meeting he attended concerned noise made by barges on the river. There were no dues and no restrictions on members selling. Mrs. Aguado said she knew the organization did object to building multiple dwellings. However, the Aguados said Chad-well told them that none of the neighbors then objected to selling for use for multiple housing but Chadwell denied this. Chadwell said he had no knowledge of any objection until three or four weeks after the listing contract was signed when the owner adjoining Mrs. Jenkins’ property talked to him about moving the sign. After that he said he told Aguado some of the neighbors objected to use for an apartment but that others did not.

Mr. A. W. Kuennke, president of plaintiff, saw the Lind sign and contacted Chad-well. He wanted both properties (Aguado and Jenkins) to have enough land for condominium units he planned. Option contracts were prepared and signed by Mrs. Jenkins on May 10, 1965, to sell for $60,-000.00 and by Miss Moser on May 17, 1965, to sell for $40,000.00, each stating it was subject to acceptance by the owner of the other property. $100.00 was paid for each option. After obtaining the listing contract, Lind had learned that Miss Moser was the record owner. On July 8, 1965, another and final contract was signed by Miss Moser and plaintiff providing that on or before July 16, 1965, purchaser would deposit $5,-000.00 with Lawyers Title Company and that sellers would deposit a warranty deed, to be held in escrow, on or before that date, the balance of the purchase price to be paid on the closing date, August 30, 1965. It was also stated the contract was subject to obtaining building permits and no injunctions being filed prior to closing. The reason for this provision about injunctions was that the neighbor adjoining the Jenkins property was expressing opposition to the sale. There was a similar contract with Mrs. Jenkins who did later convey her property to plaintiff. Miss Moser signed both contracts for the Aguado property at the direction of and in the presence of the Aguados. Mr. Kuennke had been informed by Chad-well that she was a straw party and who the owners were. Defendants claim that Chadwell and Lind became the agents of plaintiff and were acting for plaintiff in the transaction but the court found against this claim. Other facts will be stated in connection with our rulings.

The court made the following findings of fact: That the Aguados were the real owners of the real estate; that Miss Moser was vested with legal title for the convenience of the Aguados; that Chadwell was the agent and employee of Lind; that the Aguados signed the listing contract authorizing Lind to sell their real estate; that Miss Moser signed the written contract to sell the real estate for $40,000.00 with the knowledge and consent of the Aguados; that the sale was to be closed on or before August 30, 1965; that plaintiff has deposited all of the purchase price with Lawyers Title Company and it is available to defendants upon closing the sale; that plaintiff fully performed its contract obligation and at all times acted in good faith; that the purchase price is fair and reasonable; and that no damages alleged in defendants’ counterclaim were sustained.

The court further stated its conclusions that Chadwell and Lind were not employed by or acting for plaintiff; that plaintiff was not responsible for alleged false representations, if any, of Chadwell and Lind; that by the condition of no injunction being filed prior to closing, in the July 8, 1965, contract signed by Miss Moser, defendants were put on notice that some adjoining property owners were opposed to the sale by defendants for the use proposed; that plaintiff was entitled to specific performance; and that defendants’ counterclaim should be dismissed. The court ordered a conveyance by Miss Moser within 10 days and also dismissed defendants’ third party petition. The court further ordered, if the deed was not made, title “is hereby vested in plaintiff free and clear of any and all interests, rights and claims of defendants.”

The Aguados raised the issue of the statute of frauds, Sec. 432.010, RSMo, V.A. M.S., claiming it applied because they did not sign the option contract of May 17, 1965, or the final contract of July 8, 1965, which fixed the closing date as August 30, 1965; and because the listing contract they did sign authorized sale for a larger amount than the amount finally fixed by the contracts signed by Miss Moser. They did not raise this issue by their pleadings but made oral objections to evidence, on the authority of Smith v. Hainline, Mo.Sup., 253 S.W. 1049, 1052. However, we think there are good reasons why this defense is not available to the Aguados. In the first place they did not hold the legal title and they are not required to make a deed. Moreover, the holder of the legal title did sign the contract. More important, however, plaintiff’s petition alleged and the evidence showed facts which are the basis for equitable es-toppel against them. We applied equitable estoppel in a somewhat similar situation in Farrington v. Hays, 353 Mo. 194, 182 S.W.2d 186, where the title was held by a straw party who signed a contract as seller with the consent of Hays who later sought to avoid it. In Hubbard v. Slavens, 218 Mo. 598, 117 S.W. 1104, equitable estoppel was applied to vest title to land, citing Kirk v. Hamilton, 102 U.S. 68, 77, 26 L.Ed. 79, in which it was said it seems “too late to contend that the title to real estate cannot be passed by matter in pais without disregarding the Statute of Frauds.” In Prouse v. Schmidt, Mo.Sup., 156 S.W.2d 919, we said: “There is no doubt but that the title to real estate * * * may pass by an equitable estoppel.” We set out therein grounds from which such an estoppel arises; and for the reasons hereinafter stated we consider that compliance with all of them has been shown in this case. See 28 Am.Jur.2d 735, Estoppel and Waiver, Sec. 88; 31 C.J.S. Estoppel § 150, page 740; Annotation, 50 A.L.R. 685; see also Jones Store Co. v. Dean, U.S.C.A. 8th, 56 F.2d 110, citing Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618. It is said in the Dickerson case, which vested title by equitable estoppel: “The vital principle is, that he who, by his language or conduct, leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectation upon which he acted. Such a change of position is sternly forbidden.”

Plaintiff alleged and its evidence showed that the Aguados listed the land for sale with Lind and authorized and directed Miss Moser to execute the agreements for its sale including the final contract of July 8, 1965; that plaintiff made a final contract for the adjoining Jenkins’ property at the same time Miss Moser made the final contract with plaintiff, completing the purchase from Mrs. Jenkms, relying on having final contracts for both properties; that plaintiff had expended money for surveys and architect services relying on acquiring title to both tracts; and that it cannot develop its planned condominium units without using both properties. Plaintiff’s president did not know Miss Moser and had never spoken to her at the time she signed the option contract as record owner. The Aguados were present when Miss Mos-er signed each contract and directed her to sign them. We hold that the conduct of the Aguados amounted to a representation that Miss Moser was entitled to and would convey the title; and that plaintiff reasonably relied thereon, acted on it and in doing so changed its position for the worse. Therefore, defendants now are estopped from asserting any claim of invalidity under the statute of frauds.

The Aguados claimed to have been induced by false statements about neighbors having no objections. However, the court found (and the record supports its finding) that the Aguados were “charged with the knowledge that some of the adjoining property owners were opposed to the sale of defendants’ real estate and the use thereof for building condominium units” when they had Miss Moser sign the July 8, 1965, contract. Furthermore, the Aguados’ testimony on this issue is not convincing in view of the fact that their property and that of Mrs. Jenkins was advertised for such use for almost six months by a four-by-eight-foot sign on the Jenkins’ property; during which time, according to them, no one objected to them and they did not talk to any neighbors about it. The reasonable inference from all the evidence is that at least the Aguados knew of the opposition to the sale by the neighbor adjoining the Jenkins’ property before the contract of July 8, 1965, was signed. We hold the court was correct in finding the sale should not be avoided on the basis of alleged false representations.

It follows from these rulings that defendants’ claim of error in the dismissal of their third party petition against Lind and Chadwell is without merit. Likewise without merit is their claim of error for refusing to admit evidence of a petition by owners of land, in the area of the properties herein involved, to obtain zoning changes to prevent multiple dwellings. There is nothing in the record to show it was prepared before the contracts herein involved were made or when it was signed and filed.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the court.

All concur.


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    Leslie JONES, Appellant, v. Ken BUCKLEY, Respondent.
    No. 52486.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Wayne L. Millsap, St. Louis, for appellant.
    Samuel Richeson, Roland A. Wegmann, Dearing, Richeson, Weier, Roberts & Weg-mann, Hillsboro, for contestee-respondent.
   HENRY J. WESTHUES, Special Commissioner.

This case involves an election contest. Contestant, Leslie Jones, and Ken Buckley, contestee, were candidates for the office of Sheriff of St. Francois County, Missouri. The election was held on November 3, 1964. Of the votes cast at this election, not counting the absentee ballots, Jones received 7,488 and Buckley received 7,318. Of the absentee ballots counted, Jones received 554 and Buckley received 785, giving Buckley a plurality of 61 votes. A certificate of election was issued to Buckley. The absentee ballots were counted on Friday, Saturday, and Sunday, November 6, 7, and 8. At that time Jones, the contestant, was the sheriff of St. Francois County.

On November 28, 1964, Jones filed a notice with the clerk of the circuit court notifying Buckley that he, Jones, was contesting the election. The clerk issued a summons and delivered it and the notice to Sheriff Jones, the contestant. On November 28, the summons and the notice were served on Buckley by a deputy sheriff.

On December 12, 1964, Buckley filed a motion to dismiss the case. It was stated in the motion that the court did not have jurisdiction of the subject matter or the person of the contestee. The ground assigned was that the service of the notice on Buckley was void. It was alleged in the motion that Sheriff Jones, being the contestant, was not qualified to serve the notice but that in such cases the coroner of the county was the proper officer to perform that duty.

On application of Jones, the regular judge was disqualified and the case was heard by Judge Roy W. McGhee as special judge.

Judge McGhee denied the motion to dismiss. Buckley then applied to this, the Supreme Court of Missouri, for a writ of prohibition to prevent Judge McGhee from trying the case. On February 18, 1965, the supreme court denied the application for a writ of prohibition.

The dispute involved only the absentee ballots. The trial judge held many of these ballots invalid, but found that Buckley had been elected by a plurality of 17 votes. A judgment was entered in Buckley’s favor. Contestant Jones appealed.

Title to an office under this state being involved, appellate jurisdiction is vested in this court by virtue of Article V, Section 3, Missouri Constitution of 1945, V.A.M.S.

Contestee Buckley insists that the trial court did not have jurisdiction and therefore the cause should have been dismissed.

Contestant Jones urges that it was the duty of the circuit clerk to deliver the summons and notice to the proper officer under Civil Rule 54.01, V.A.M.R. Jones claims that the fact that the clerk neglected his duty should not prejudice the contestant. The case of Middleton v. Lewis, 248 Ky. 86, 58 S.W.2d 251, was cited as authority. The following, taken from the opinion, was quoted in the brief:

“When contestants filed their petition, which appears to meet the requirements of section 1596a-12, Ky.Stats., as amended by Acts 1930, c. 51, and caused the clerk to issue summons thereon, they had done all the law requires them to do, and it then became the duty of the clerk to issue a proper summons, and the contestants will not be prejudiced by the failure of the clerk to do his duty in that respect. (Citation.) When the contestees were served with process, that apprised them of the pendency of the action.” 58 S.W.2d l. c. 252.

We find that the notice in that case was timely served by the proper officer. The clerk had the summons to read that the contestee had only ten days to reply, whereas the law permitted twenty days. The court held the error did not deprive the court of having jurisdiction. The case of State ex rel. Penrose v. Killoren, 354 Mo. 22, 188 S.W.2d 1, was cited also. In that case the question of jurisdiction was held to have been waived when the con-testee entered his appearance by asking the trial court to require the contestant to make a deposit in court to secure the costs, which request was granted. This occurred before the question of jurisdiction was raised. We do not have such a situation in the case before us. The contestee, Buckley, filed a motion to dismiss and raised the jurisdictional question before any other pleading was filed. After the motion to dismiss was denied, the contestee filed pleadings and also renewed his plea as to jurisdiction and briefed the point on this appeal.

It is our opinion that the motion to dismiss should have been sustained. The summons and the notice were served on Buckley by a deputy sheriff who, in law, was the alter ego of the contestant, Jones. In fact, the return on service of summons was signed “Leslie Jones, Sheriff of St. Francois County, Missouri, By Thomas E. Mell, Deputy Sheriff.” This in effect was the same as if the sheriff had personally served the notice. Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537, l. c. 543 [13, 14]; Cobe v. Lovan, Mo., 193 Mo. 235, 92 S.W. 93, l. c. 97. Jones, being the sheriff and the moving party in the case, was disqualified to serve the notice. Section 58.190, V.A.M.S. This court has held such service to be insufficient to confer jurisdiction on the court. It has long been the law of this state that to confer jurisdiction on a circuit court in an election contest, the record must show that the contestee was served with a notice by a proper officer within the time provided by statute. State ex rel. Kaysing v. Ryan, 334 Mo. 743, 67 S.W.2d 983, l. c. 984 [1-3]; Messick v. Grainger, 356 Mo. 1227, 205 S.W.2d 739, l. c. 741, 742 [2] [3]; Davenport v. Teeters, Mo.App., 273 S.W.2d 506, l. c. 511 [5]; 29 C.J.S. Elections § 256, pp. 702-704.

Contestant’s contention that he should not be prejudiced by the neglect of the clerk is without merit. A sufficient answer to that is that neither should the contestee be prejudicied by such neglect. The question is one oj jurisdiction and, in this case, the contestant, being'the sheriff, should have known that he was not the proper officer to serve the notice on his opponent.

Contestant insists that even though the service may be held to be insufficient, the contestee waived the question of jurisdiction by filing pleadings and asking for affirmative relief. Cases cited in support of this contention are cases that were decided prior to the adoption of the new rules of civil procedure, or cases where the defendant entered his appearance before raising the jurisdictional question. See State ex rel. Penrose v. Killoren, supra, 354 Mo. 22, 188 S.W.2d l. c. 3 [3] [4].

Under our present rules a litigant may question the jurisdiction of the court and then answer and try the case without waiving the question of jurisdiction. On this point we deem it sufficient to quote from the case of Greenwood v. Schnake, Mo., 396 S.W.2d 723, l. c. 726, where this court said in an opinion by Commissioner Houser:

“A defendant may perform these acts and thus enter and probe into the merits of the case without the necessity of making the time-honored ‘special appearance” or reserving the jurisdictional point at each stage of the procedure. Having once hoisted the flag at the beginning of the journey a litigant over whose person a court lacks jurisdiction need not continuously wave the flag at every way station along the route.

“Note well, however, that a defendant objecting to lack of jurisdiction over his person should promptly file the motion raising the question. Such a motion must be made within the time allowed for responding to the opposing party’s pleading, Civil Rule 55.36; § 509.330, and if not made within the time therein limited the party waives all objections to jurisdiction then available to him, by the express provisions of Civil Rule 55.37 and § 509.340.”

In a supplemental reply brief contestant urges that the record shows con-testee was served with a notice of contest by the coroner on December 11, 1964. That fact does not aid contestant if the service was made too late. It is argued that Section 124.250, V.A.M.S., provides that the notice must be “given to the opposite party within twenty days after the votes have been officially counted” and that in the same section it is provided that “the notice shall be served fifteen days before the term of court at which the election shall be contested.” This question was settled in the case of Davenport v. Teeters, Mo.App., 273 S.W.2d 506. In that case, in an opinion by Justice Ruarle, the Springfield Court of Appeals reviewed the question of the sufficiency of the notice and service thereof at length. It was held that a notice which did not specify the term of court at which the case would be heard was not defective. The court did hold that the notice must be served by a proper officer within twenty days after the official count of the votes. Cases from the supreme court en banc were cited in support of the ruling made.

Contestant, in the supplement reply brief, stated also that “It is impossible to determine from the record just when the votes were ‘officially counted.’ ”

Contestant filed his notice on November 28, 1964. It was alleged in the notice that the election was held on November 3, that contestant received 8,042 votes and Buckley received 8,103 votes, and that 1,300 absentee ballots were cast. Contestant did not state when the absentee ballots were counted. However, Section 111.710 V.A.M.S. provides that the county clerk shall “within five days after the close of each election, * * * give to those having the highest number of votes certificates of election.” We take notice of the statute and therefore may assume that the clerk of the county court performed his duty. It is evident from the statements made by the contestant in the notice that the votes were officially counted more than twenty days before December 11 when the coroner served Buckley with a notice of the election contest. That was the situation when Buckley filed his motion to dismiss the case for want of jurisdiction.

We rule that the trial court should have dismissed the cause for want of jurisdiction.

It is therefore ordered that the case be remanded and the trial court be directed to dismiss contestant’s case.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the court.

All of the Judges concur.


text:
    Antonio TRAVAGLIANTE and Laura Travagliante, Plaintiffs-Respondents, v. J. W. WOOD REALTY COMPANY, a corporation, Defendant-Appellant, and Northwest Land Company, a corporation, Defendant.
    No. 52743.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1968.

      Wyne & Delworth, by Edward J. Del-worth, Clayton, for respondents Antonio Travagliante and Laura Travagliante.
    Henry Ebenhoh and Walter S. Berkman, St. Louis, for appellant, J. W. Wood Realty Co.
   HOUSER, Commissioner.

This is an action in three counts by Antonio and Laura Travagliante against J. W. Wood Realty Company, a corporation, and Northwest Land Company, a corporation. Northwest Land Company is sole defendant in Count I for the recovery of $2,065, the balance plaintiffs claim is due on the purchase price of certain land sold by plaintiffs to Northwest Land Company. Wood Realty is sole defendant in Count II to recover back a real estate commission of $1,976.10 plaintiffs paid to the realty company as plaintiffs’ agent in the sale of the land, and to recover $20,000 damages for failure of the realty company to disclose to plaintiffs, pri- or to the time the sale was closed, the financial interest which the officers and stockholders of the realty company had in the purchaser, Northwest Land Company. Both Wood Realty and Northwest Land Company are defendants in Count III, in which the realty company is charged with inducing plaintiffs to convey the land with intent to deceive them as to the true purchaser of the land and as to the true value of the land (alleged to be $2,750 an acre— sold for $1,750 an acre), and Northwest Land Company is charged with joining, with the realty company, with knowledge of the latter’s intent to deceive plaintiffs as to the true purchaser and with knowledge of the true value of the land, in carrying out the deception to its own profit. Plaintiffs pray for judgment in Count III against the realty company for $1,976.10 (the amount of the commission); against Northwest Land Company for $2,065 (the balance of the purchase price), and against both for $20,000 actual and $50,000 punitive damages.

The issues on all three counts were submitted to a jury. On Count I the jury found for plaintiffs and against Northwest Land Company in the sum of $2,089.50 damages. On Count II the jury found for Wood Realty and against plaintiffs. On Count III the jury found for plaintiffs and against both defendants in the sum of $10,207.14 actual damages, and punitive damages as follows: $10,500 against Wood Realty and $10,500 against Northwest Land Company.

Northwest Land Company filed a motion to set aside the verdicts and judgments against it on Counts I and III and to have judgment entered in accordance with its motion for a directed verdict or in the alternative to grant it a new trial. The court overruled Northwest Land Company’s motion to set aside and for judgment and sustained its alternative motion for a new trial on Counts I and III.

Plaintiffs filed a motion to set aside the verdict against them on Count II and for judgment in accordance with their motion for a directed verdict on Count II or in the alternative to grant them a new trial. The court overruled plaintiffs’ motion to set aside and for judgment and sustained plaintiffs’ alternative motion for a new trial.

Wood Realty filed a motion to set aside the verdict and judgment entered against it on Count III and for judgment in accordance with its motion for a directed verdict or in the alternative to grant it a new trial. The court overruled Wood Realty’s motion to set aside and for judgment, and sustained its alternative motion for a new trial.

Wood Realty filed a notice of appeal from the order granting plaintiffs a new trial on Count II. No appeal was taken by any party with respect to the action of the court on Counts I and III, and no other or further order was made .in the case. After the appeal was lodged here plaintiffs filed a motion to dismiss the appeal as premature on the ground that the appeal “does not dispose of the issues as to all parties and as to all issues against all parties, as required by Section 512.020 of the Revised Statutes of Missouri of 1959.” The motion to dismiss the appeal was overruled prior to the hearing of this appeal. In their brief plaintiffs have renewed their motion to dismiss and we will reconsider it. Plaintiffs contend that there is no final judgment within the meaning of that term as used in § 512.-020, V.A.M.S. because the judgment does not dispose of all of the parties and all of the issues and leaves matters for future determination. It is true that when all three new trial motions were sustained the case was pending anew on all counts and was in the same condition as before trial. Plaintiffs’ impression, however, that Wood Realty is attempting to appeal from a final judgment, under the statutory right to appeal indicated, is a misapprehension. Wood Realty is not exercising its right to appeal from a final judgment but is properly taking an appeal under that clause of § 512.020, RSMo 1959, V.A.M.S. which authorizes an appeal “from any order granting a new trial.” The general rule that in order for a judgment to be final and appealable it must dispose of all parties and issues in the case and leave nothing for future determination is not applicable. The portion of § 512.020 last quoted governs. Fulton v. Bailey, Mo.Sup., 413 S.W.2d 514 [1], Wood Realty had a right to appeal the order granting plaintiffs a new trial notwithstanding there were other counts remaining undis-posed of involving it and another defendant. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566 [2].

Marty Seithel, employee of Wood Realty, approached Antonio Travagliante and asked him if he wanted to sell a 20-acre tract of land in St. Louis County owned by Antonio and wife. Antonio said he would sell it for $3,000 an acre. Seithel said that he could not give him $3,000 an acre. Antonio then “put it up” at $1,750 an acre, and on the next day, October 16, 1959, plaintiffs and Northwest Land Company signed a printed form of sale contract, the blank spaces of which were filled in with typewriting, in which plaintiffs agreed to sell and Northwest Land Company agreed to buy a certain described tract of land containing “20 acres, (more or less)” for $35,000, “(s)ales price to be adjusted on closing, based on $1750.00 per acre, as shown on accurate survey.” Wood Realty was recognized and signed the contract as the agent of the sellers, who agreed to pay a commission of 6% of the sales price. The sale was closed on November 15,1959. In the closing statement sellers received credit for $32,935 for the land. The survey showed that the tract consisted of 20.014 acres including roads and easements; 18.584 acres excluding road and easements.

Seithel testified that when he presented the sales contract to plaintiffs he explained to them that they were to take back a deed of trust for $26,200; that plaintiffs asked Seithel whether the purchaser, Northwest Land Company, was “sound so far as taking back this financing,” and that he explained to plaintiffs that they had “nothing to worry about, it was a reliable company,” mentioning Sterling Kennedy, Ed Ryder and George Wood as officers. When asked “Did you tell them who George Wood was?” Seithel answered, “J. W. Wood Company, my boss.” Then plaintiffs signed the contract.

Both Antonio and his wife knew that Northwest Land Company was buying the land, but Antonio testified that no one told him that any officer of Wood Realty was also an officer of Northwest Land Company, and that he did not know there was any connection between Northwest Land Company and Wood Realty and that some of the officers of Wood Realty were officers in Northwest Land Company. He said there was no discussion of stock holdings in the two companies. Antonio’s wife testified that prior to closing date she did not know anyone connected with Northwest Land Company; that before signing the sale contract no one told her that any stockholder or officer of Wood Realty was a stockholder or officer in Northwest Land Company. Asked whether at the time of signing the contract it made any difference to her who the officers of Northwest Land Company were so long as they paid $1,750 an acre, she at first answered “I just don’t know — ,” and then answered “No, it would make no difference, because — we did not get what we asked for.” Later, asked “But if you had got $1750.00 per acre it would not make any difference who the officers were of the Northwest Land Company, isn’t that correct?,” she answered “That is the same.”

Wood Realty’s first point on this appeal is that the court erred in sustaining plaintiffs’ motion for a new trial upon the third ground of the motion, namely, that the court erred in giving Instruction No. 5, offered by Wood Realty.

Count II of plaintiffs’ first amended petition alleged that “officers and stockholders of defendant, J. W. Wood Realty Company, had a financial interest in defendant, Northwest Land Company, on and prior to the aforesaid closing date,” and that “the aforesaid financial interest in defendant, Northwest Land Company, was not disclosed to plaintiffs.”

Plaintiffs’ main verdict-directing Instruction No. 4 follows:

“Your verdict must be for plaintiffs on Count II if you believe:

“First, that defendant, J. W. Wood Realty Co., obtained Northwest Land Company as a purchaser of plaintiffs’ land mentioned in evidence; and

“Second, that officers and stockholders of J. W. Wood Realty Co. were, during the course of the transactions, officers and stockholders of Northwest Land Company; and

“Third, that no one informed plaintiffs that officers and stockholders of J. W. Wood Realty Co. were, during the course of the transactions, officers and stockholders of Northwest Land Company.”

Instruction No. 5 follows:

“Your verdict must be for defendant J. W. Wood Realty Company on Counts II and III if you believe that:

“1. Marty Seithel informed the plaintiffs before the contract for sale was closed that his boss, George Wood, was an officer of Northwest Land Company.”

The third ground of plaintiffs’ motion for new trial follows:

“That Instruction Number 5 given to the jury on behalf of defendant, J. W. Wood Realty Company, was a misstatement of the law under the evidence as it directed a verdict for J. W. Wood Realty Company if the jury found that J. W. Wood Realty Company’s employee, Marty Seithel, informed plaintiffs prior to the closing of the contract of sale that his boss, George Wood, was an officer of North West Land Company when the evidence showed that George Wood was not only an officer but a stockholder of that corporation and that Anthony Wood was a stockholder in both corporations at the time of entering the contract and closing the sale. This is an incomplete hypothesizing of the facts to be found by the jury and is not a converse instruction to plaintiffs’ Instruction Number 4 which was plaintiffs’ verdict directing instruction on Count II.”

The point is well taken. The relationship of Wood Realty [the corporate real estate broker] to its customers, the plaintiffs, was the confidential and fiduciary relationship of principal and agent, which imposed upon the broker the obligation to be perfectly frank with its principals, to make a full and complete disclosure of all material facts concerning the transaction which might affect their decision to sell their property to the proposed purchaser, to be loyal to plaintiffs, and to exercise the utmost fidelity and good faith towards them. Wood Realty’s obligations were as exacting as those of a trustee and included the duty to disclose to .its principals all material facts fully and completely, i. e., all facts which an agent should realize would be likely to affect the judgment of its principals in giving their consent to sign a proposed sale contract. The “ * * * disclosure must include not only the fact that the agent is acting on his own account * * *, but also all other facts which he should realize have * * * a bearing upon the desirability of the transaction from the viewpoint of the principal.” Restatement of Agency, § 390, Comment a.; Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 S.W.2d 201, 206; Martin v. Hieken, Mo.App., 340 S.W.2d 161, 165. An agent “ * * is held to the most perfect faith in the dealings with his principal, and if he * * * omits to disclose any interest which would naturally influence his conduct in dealings with the subject of the employment, it amounts to fraud on the part of the agent.’” Leimkuehler v. Wessendorf, 323 Mo. 64, 18 S.W.2d 445, 453, 454. “The rule is universal that an agent authorized to sell property for another cannot himself be the purchaser, unless he discloses fully to his principal that he is the purchaser, revealing everything within his knowledge relating to the transaction.” Benson v. Watkins, 313 Mo. 426, 285 S.W. 407, 408, and other authorities cited in Utlaut v. Glick Real Estate Co., Mo.Sup., 246 S.W.2d 760, 763.

The extent of the interest of a principal officer of Wood Realty, the real estate broker, in Northwest Land Company, the purchaser, would be a matter of concern to the owners of the property. Such information, among other things, might tend to discount Seithel’s previous statement to them that he could not “give them $3,000 an acre.” Plaintiffs were entitled to know not only some but all of the financial interconnections between the realty corporation and the purchasing corporation. Appellant’s argument that further information was unnecessary and meaningless; that there was “an adequate disclosure of financial interest” and that it was plaintiffs’ duty to request a more complete hypothesization of the facts in this connection, stands for disapproval. Complete, unreserved disclosure was imperative. Wood Realty was entitled to a favorable verdict on Count II only if its agent Seithel informed plaintiffs before the contract of sale was closed that George W. Wood, an officer of Wood Realty Company, owned 45 of the 490 outstanding shares of its stock; that he was an officer (secretary-treasurer) of Northwest Land Company and owner of 98 of the 300 outstanding shares of its stock; and that Anthony B. Wood, an officer of Wood Realty and owner of 45 shares of its stock, owned 2 shares of Northwest Land Company stock. Instruction No. 5 authorized a verdict for Wood Realty if Seithel merely informed plaintiffs “that his boss, George Wood, was an officer of Northwest Land Company.” Instruction No. 5 did not submit all of the necessary facts to entitle Wood Realty to a verdict at the hands of the jury on the theory of defense adopted, and the court properly granted plaintiffs’ motion for new trial on Count II for error in the giving of Instruction No. 5.

Appellants make the tenuous argument that in any event Wood Realty was entitled to a directed verdict in its favor since neither Wood Realty nor its employee Seithel had any interest, financial or otherwise, in Northwest Land Company. ,.Wood Realty concedes that two of its officers were stockholders in and that George Wood was an officer of Northwest Land Company, but this is said to be innocuous because George and Anthony Wood were only minority stockholders, and because plaintiffs could not have been prejudiced because it made no difference to the latter who owned Northwest Land Company or where the money came from, as long as plaintiffs got their asking price of $1,750 an acre.

The fact that J. W. Wood Realty Company, a corporation, was not a record owner and a holder of stock in the purchasing corporation does not detract from the fact that an insufficient disclosure was made to the principals with respect to the interlocking interests of two of its officers and stockholders. The fact that they were minority stockholders is no saving grace. Disclosure of the fact and extent of their interest, however minuscule, was required. The rule of Klein v. Terminal R. Ass’n of St. Louis, Mo.App., 268 S.W. 660, that failure of a broker to disclose the name of the real purchaser ought not defeat the broker’s right to a commission, where there is no showing that the principal was or could have been in any way prejudiced or injured thereby, is inapplicable. In Klein the agent had no interest as purchaser. Where the agent has such an interest the rule is different, and in the case of a corporate agent, a financial interest of its officers is sufficient. In Curotto v. Hammack, 362 Mo. 457, 241 S.W.2d 897, where this Court held that a broker employed to sell property cannot become the purchaser, or arrange for a sale to his employees, partners or near relatives, without the principal’s full knowledge and consent, we quoted with approval the following pertinent writing from the hand of Cardozo, J.: “If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance (Dunne v. English, L. R. 18 Eq. 524; Imperial Merc. & Credit Assn. v. Coleman, L. R. 6 H. E. 189). Finally, we are told that the brokers acted in good faith, that the terms procured were the best obtainable at the moment, and that the wrong, if any, was unaccompanied by damage. This is no sufficient answer by a trustee forgetful of his duty. The law 'does not stop to inquire whether the contract or transaction was fair or unfair. It stops the inquiry when the relation is disclosed, and sets aside the transaction or refuses to enforce it, at the instance of the party whom the fiduciary undertook to represent, without undertaking to deal with the question of abstract justice in the particular case.’ Munson v. Syracuse, G. & C. R. Co., supra [103 N.Y. 58], at page 74, 8 N.E. 355; cf. Dutton v. Willner, 52 N.Y. 312, 319. Only by this uncompromising rigidity has the rule of undivided loyalty been maintained against disintegrating erosion.” [From Wendt v. Fischer, 243 N.Y. 439, 154 N.E. 303, 304.]

Judgment affirmed and cause remanded for trial on all counts.

WELBORN, C., concurs.

HIGGINS, C, not sitting.

PER CURIAM:

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

All of the Judges concur.

      . Allowing an aggrieved party to appeal “ * * * from any final judgment in the ease * * * »