text:
    Lige G. OUSLEY, Plaintiff, v. HAWTHORN COMPANY, DIVISION OF KELLWOOD COMPANY, Defendant.
    No. 24273.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Robert R. Schwarz, Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for appellant.
    Allen B. Soper, Jr., Slater, for respondent.
   SPERRY, Commissioner.

This cause of action grew out of a claim for compensation filed by Mr. Ousley against defendant for an injury allegedly suffered by him while in the employ of defendant. A referee conducted a hearing and denied compensation. Plaintiff appealed to the full Commission and it also denied compensation. Plaintiff appealed to the Circuit Court where the award and decision of the Commission was reversed and the cause was remanded. From that judgment defendant appeals to this court.

The facts and circumstances on October 11th, 1963, when plaintiff contends that he received a compensable injury, are few, simple, undisputed, and appear from plaintiff’s testimony. They are to the effect that plaintiff was a laborer and had done heavy labor throughout his lifetime; that he was then sixty-three years of age; that, for some time prior thereto, he was employed by defendant, at its plant in Glasgow, Missouri; that his work was performed exclusively in a pole shed, adjacent but separate from the main building; that he worked alone; that pieces of cloth, used in the main operation, were shredded; that plaintiff would place these shreds into an electric press and bale them with wire; that a bale was about two feet thick, two feet wide, four feet long, and would weigh one hundred pounds or more; that, after a bale was completed, plaintiff would stack it along the wall of the shed in order to have sufficient work space; that, on the occasion when he received this alleged injury, he had picked up a bale, weighing about one hundred pounds, and proceeded to lift it to the top of the pile of stacked bales; that the stack was about six feet high; that, in lifting it up, he ordinarily used his hands alone but, in this instance, he boosted with his leg; that when he put his leg down after completion of this operation he felt excruciating pain in his lower back and down between his legs; that he was weak and sick all over; that he asked a passing employee to notify the personnel supervisor that he had hurt himself inside and was sick; that, eventually, he so reported to the personnel manager, to whom injuries suffered by employees were to be reported; that no medical aid was proffered and he did not request any; that he drove his car home and then went to a doctor for relief. Plaintiff stated that he had never, prior to this occasion, used his leg to assist in lifting a bale to the top of the stack. He also stated that the operation that he was performing was regular routine, the same work that he had been doing, day after day, without any ill effects; that the only thing that was different, on this occasion, was the use of his leg to lift the bale; that he had previously lifted bales by “steps” (from lower bales). In his amended claim, upon which the hearing was held, plaintiff stated the facts upon which he rests his right to an award. He claimed permanent and total disability from and after October 10th, 1963, because of an abnormal or unusual strain due to an accident arising out of and in .the course of his employment.

Photostatic copies of the University of Missouri Medical Center records were offered and received in evidence without objection. Under date of October 28, 1963, the following appears:

“On October 11, 1963, patient lifted a 100 pound bale of scrap material. A few moments later he stooped over and felt a sharp stabbing pain in his back at the same place as the other two episodes”. * * *

CONSULTATION REQUEST:

“Three episodes of sharp stabbing lumbo-sacral pain on right during the past 30 years, incurred subsequent to lifting”.

RADIOLOGICAL CONSULTATION REQUEST”

“Pertinent clinical data. 63 year old white male with a 30 year history of intermittent lumbo-sacral pain on right”.

REPORT OF RADIOLOGICAL CONSULTATION:

“63 year old white male with a 30 year history of lumbo-sacral pain on right. Lumbar spine 10/28/63: AP and lateral views of the lumbo-sacral spine reveal no abnormality”.

IMPRESSION: “Negative lumbosacral spine”.

“Muscle groups in upper and lower extremities grossly intact. No limitation of motion. Worked up to date and has not demonstrated any evidence of disc problem. Most probable diagnosis now seems to be simple strain — simple muscle strain. In the interim evaluation of patient’s symptoms have become non-existant. Still somewhat hypertensive”.

There was some medical testimony to the effect that plaintiff was and had been suffering from a lower back syndrome with a 15% disability, which was permanent. Plaintiff stated that he was unable to do any heavy labor since the accident occurred.

In Enyard v. Consolidated Underwriters (Mo.App.), 390 S.W.2d 417, 423, the court said:

"[1-4] The rules of law governing the extent and scope of our review in a workmen’s compensation case are well settled in this state. We may not substitute our own judgment on the evidence for that of the Industrial Commission, but we are authorized to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. In determining these issues we first view the record in a light most favorable to the findings of the Commission, consider the favorable inferences which the Commission had a right to draw from the evidence before it, and then determine whether the Commission’s findings, even if supported by competent and substantial evidence, are contrary to the overwhelming weight of evidence in the whole record. Thacker v. Massman Const. Co., Mo., 247 S.W.2d 623, 627, and cases cited therein. The reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony. Hall v. Spot Martin, Inc., Mo., 304 S.W.2d 844, 848. Therefore, if we find that the findings of the Commission are supported by competent and substantial evidence upon the whole record and are not contrary to the overwhelming weight of the evidence, then the findings of the Commission are conclusive and binding on us in this appeal.” (Emphasis ours.)

We will follow the rule for review as quoted above. We hold that the Commission, in this case, could reasonably have reached its stated result after full consideration of all of the evidence in the record. It is not against the overwhelming weight of the evidence.

The judgment is reversed and the cause is remanded with directions to affirm the award.

MAUGHMER, C., concurs.

PER CURIAM.

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

CROSS, P. J., HOWARD, J., and DOUGLAS W. GREENE, Special Judge, concur.

BLAIR, J., not participating.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Rosa STEWART, Respondent, v. MANOR BAKING COMPANY and Willard Lassiter, Appellant.
    No. 24311.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      William A. Rundle, Jr., Morrison, Heck-er, Cozad & Morrison, Kansas City, for appellants.
    Phillip L. Baker, Jack C. Terry, Independence, for respondent.
   MAUGHMER, Commissioner.

On September 13,1961, the plaintiff, Rosa Stewart, took a truck owned by herself and her husband onto the grounds of defendant Manor Baking Company’s plant, located at 4050 Penn Avenue in Kansas City, Missouri. At this plant the company offered for sale stale bread which was widely used as feed for livestock. The Stewarts operated a farm and fed livestock. The purpose of her visit was to purchase and haul away a truckload of this bread. She was accompanied by one James Wilson, a colored man, who was the Stewart’s farmhand employee. While on the bakery premises Mrs. Stewart was injured.

On September 27, 1963, more than two years later, Mrs. Stewart commenced this lawsuit by filing her petition for damages in the Circuit Court of Jackson County, at Independence, Missouri. Therein she alleged that she was on the company’s premises by its invitation to procure, purchase, load and haul away a truckload of stale bread; that while the truck was at Manor’s loading dock and being loaded under Man- or’s direction, the defendants (Manor and William Lassiter, general manager of the plant and a named defendant) “through one of their agents, servants and employees, carelessly and negligently loaded said goods, causing the tail gate of said truck to fly open and to strike plaintiff and cause her to be thrown violently to the ground, resulting in injuries to plaintiff.”

Mrs. Stewart in her respondent appeal brief says her testimony was that “the tail gate fell after a Manor employee had ‘fiddled’ with the crossbar on each end of the tail gate and prior to this, defendant had stomped on the bread and the tail gate did not fall until after he had ‘fiddled’ with the crossbar.” The record before us does not include a transcript of Mrs. Stewart’s testimony — in fact none of the actual testimony heard at the abbreviated trial is included.

A trial was commenced before Judge John R. James and a jury on December 1, 1964. After all of plaintiff’s evidence as to liability had been presented and plaintiff’s counsel had so stated, the court took up, considered and sustained defendants’ motion for a directed verdict on the ground there was no proof of defendants’ liability. A verdict for the defendants was returned by direction of the court and judgment was entered accordingly.

On December 8, 1964, plaintiff filed her motion for new trial containing seven stated grounds: Grounds 1, 2, 5, and 7, alleged in substance (a) The Court erred in directing a verdict because plaintiff’s evidence showed negligence to the extent necessary and liability to the extent necessary to entitle her to go to the jury, and (b) The Court erred in not allowing plaintiff to present all of her evidence. Her Points 3, 4, and 6 requested a new trial because of newly discovered, pertinent, decisive and now available evidence, namely, the personal presence and oral testimony of James Wilson, the colored farmhand who had accompanied her on the illfated trip to the bakery. To this motion was attached an affidavit by James Wilson, which he had executed on December 4, 1964. .

This motion for new trial was not presented and heard until March S, 1965, or 87 days after it was filed. During the interval Judge James had passed on and Judge Jensen was sitting. Arguments of counsel were heard, the Wilson affidavit was considered and Mr. Jack Terry, plaintiff’s attorney, testified. He said he knew about Wilson long before the trial and had advised plaintiff of his importance as a witness, but that Wilson had left plaintiff’s employ about three months after the accident. He stated that plaintiff had endeavored to locate him by inquiries of neighbors, telephone calls and one letter to Oklahoma. Apparently after the trial the witness was located through inquiries made of plaintiff’s niece. Judge Jensen then indicated he was disposed to overrule the motion, but said he would hear testimony from the plaintiff herself as to her earlier efforts to locate Mr. Wilson if this testimony was presented within the three days remaining during which the Court had power to act on the motion.

On Monday, March 8, 1965, on the last remaining day, an affidavit executed by plaintiff was filed. Therein she stated she was unable to appear personally because a severe snow storm made it impossible for her to get through her driveway in Muncie, Kansas, where she then resided. In the affidavit she detailed her efforts to locate Mr. Wilson, told how she had contacted two colored acquaintances, had made inquiries at the local store and talked with his sister, all of which availed nothing. She declared that after the trial, through the assistance of her niece, Wilson had been located. This affidavit was not, of course, attached to the motion for new trial as is required by Civil Rule 78.03, V.A.M.R. On the same day the relieving trial judge, Honorable Richard C. Jensen, sustained the motion for new trial and set aside the directed verdict “on grounds set out in paragraphs numbers 3 and 4.” Defendants have appealed.

We shall first discuss and dispose of those points presented on appeal by both defendants and plaintiff which we believe are not ultimately decisive. The respondent plaintiff tells us first that the Court erred in directing a verdict for defendants because plaintiff’s evidence at the trial did make a submissible case. She says the new trial award corrected such error, and on this ground alone we should affirm. In this connection we note that the trial court did not grant a new trial on this point. Judge Jensen had not heard the trial testimony and no transcript of any part of such testimony was prepared and submitted to him. Furthermore, his new trial order specifically declared that the motion was sustained on the basis of newly discovered evidence. We are fully cognizant of our authority to approve the action of the trial court in granting a new trial, even if for a different reason than the one which impelled it to do so. However, this court, too, not only did not hear plaintiff’s evidence on the issue of liability, but we do not have a transcript containing any part of such testimony. True, defendants are the appellants here and in such capacity directed preparation of the appeal transcript, which is before us. However, plaintiff was not precluded from filing in this court a transcript of the testimony relating to liability if she deemed it essential. While plaintiff has not in her brief on appeal abandoned this point, we rule it has not been adequately presented since we do not know what her evidence was and consequently we deny plaintiff’s contention on this point.

Defendants on their part say the new trial motion, including the supporting affidavit by Wilson, “did not set forth the newly discovered evidence with sufficient detail so that the Court could judge the competency and materiality of the alleged newly discovered evidence.” We quote from the Wilson affidavit: “A Manor employee came out and said the bread had to be torn up and he got up in the truck and was stomping it to crack the wrappers. I saw him loosen the nuts on each end of the tail gate bar as I came out of the door with a load of bread, and then he started stomping the bread again and the tail gate came down, hitting Mrs. Stewart on the head and knocking her down.” We believe this quoted statement is in sufficient detail to enable the Court to determine both its competency and its materiality.

The next point concerns the affidavit of Mrs. Stewart which was filed on March 8, 1965 (90 days after the new trial motion was filed) and which was not attached to the motion. It could not have been so attached because it was filed later. Defendants say we may not, and the trial court should not, have considered this affidavit because it was “not submitted with nor attached to plaintiff’s motion for new trial.” We set forth Civil Rule 78.03:

“When any after-trial motion, including a motion for a new trial, is based upon affidavits, they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. Depositions and oral testimony may be presented in connection with after-trial motions.” (Italics ours.)

The opinion in Tuttle v. Tomasino, Mo., 336 S.W.2d 683, 687, 688, contains the following :

“On the contention most favorable to the plaintiff, the affidavits were not offered for filing until more than sixty days after the motion for new trial was filed. Plaintiff concedes that ‘this procedure was not in strict accord with the statute’ but asserts that since the defendant did not object ‘in the record’ at the time the motion for new trial was argued and did not ask leave to file counter affidavits, he is in no position to complain on appeal. Thorn v. Cross, Mo.App., 201 S.W.2d 492, 496, cited in support of this contention, is of no help to the plaintiff. In that case affidavits were filed with the motion for new trial. There is no showing in the present record that the affidavits were served on the defendant at any time. Section 510.350 further provides that the opposing party has ten days ‘after such service’ to serve opposing affidavits which time the court may extend for ‘an additional period not exceeding twenty days.’
“Finding nothing in the record to relieve against the positive requirements of the statute, the affidavits cannot be considered, and the admissibility of the deposition must be determined on the record made at the trial.”

We believe the discussion and ruling in Holt et al. v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393, 402, fits our case quite snugly. There the court said:

“In their motion for new trial plaintiffs sought a new trial because of newly discovered evidence. Several weeks after the motion was filed they filed five affidavits in support of that assignment. It appeared from those affidavits that the persons who signed them would have testified that Mr. Gabler knew of the foundation crack before October 31, 1960, and that he sometimes gave orders to the workmen on the project.
“Civil Rule 78.03 provides that affidavits supporting a motion for new trial ‘shall be served with the motion.’ The rule was not complied with in this instance and therefore the affidavits should be disregarded.”

From these decisions it appears that our Supreme Court has applied and enforced rigidly this mandatory requirement of Rule 78.03, supra. We conclude that Mrs. Stewart’s affidavit is not and was not for consideration in connection with the motion for new trial because it was not submitted with, nor attached to, nor served with, the motion.

It is true, as plaintiff asserts, that the granting or refusal to grant a new trial must rest largely within the sound discretion of the trial judge and that discretion will not be disturbed unless clear abuse is shown. This conclusion is expressed in Young v. St. Louis Public Service Company, Mo., 326 S.W.2d 107, 113, cited by plaintiff. In that case after a verdict and judgment for plaintiff, defendant’s counsel learned of a medical examination of plaintiff which had been made as a result of a later and different accident, and sought a new trial on the basis of this newly discovered evidence. The motion was denied. The Supreme Court said:

“The evidence relied upon is not sufficient to show due and proper diligence to discover and obtain the evidence now referred to as ‘newly discovered evidence.’ Grubbs v. [Kansas City] Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 71, 78(16). Further, the matter of granting a new trial on the ground of newly discovered evidence must always rest to a large extent within the sound discretion of the trial court and the court’s ruling on such an issue should not be disturbed except for a clear abuse of the court’s decision. * * * No abuse of discretion appears from this record. ‘If the discovery of new, material evidence alone would be ground for a new trial, there would be no end to litigation.’ Mayor of Liberty v. Burns, supra, 114 Mo. 426, 433, 19 S.W. 1107, 1109, 21 S.W. 728.”

In Holt v. Queen City Loan & Investment, Inc., supra, the court cited with approval from the Young case and reiterated the requirements that must be met before a movant can be entitled to a new trial on the ground of newly discovered evidence:

“However, even if the affidavits are considered, they do not afford a basis for holding that the trial court abused its discretion in denying a new trial on the ground assigned. ‘It is well settled that a party who seeks a new trial on such ground should (to obtain such relief) be required to show: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different result if the new trial were granted; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be produced, or its absence accounted for; and (6) that the object of the testimony is not merely to impeach the character or credit of a witness.’ Young v. St. Louis Public Service Co., Mo.Sup., 326 S.W.2d 107, 111. In this case there was no showing of any reasonable excuse as to why this testimony c5uld not have been obtained, with diligence, prior to trial. Also, the testimony would have been merely cumulative in that the same facts appear in the testimony of Mr. Heizelman.”

In our case the testimony of Wilson would have been in part cumulative of the testimony of plaintiff.

As we view this matter, the vital question revolves around two of the prerequisites for granting a new trial on the ground of newly discovered evidence: (1) did the evidence come to movant’s knowledge since the trial and (2) was it not owing to want of diligence that it did not come sooner, and was not produced at the first trial? We shall present our observations and views on this subject as applied to the instant case.

Certainly plaintiff’s knowledge of the existence of the witness Wilson was known to her long before the trial. She knew at the time of the occurrence that he was a witness and excepting only defendant’s employee, was the only eyewitness other than herself. She so advised her attorney long prior to the trial. Was his testimony “newly discovered evidence”?, or did plaintiff and possibly her attorney know what it would be prior to the trial? Mr. Wilson continued working for the Stewarts some three months after the accident. Immediately after her injury he either took her home or to see a doctor. It would seem likely that he immediately or at least shortly thereafter stated his version of what occurred, including what he saw defendant’s employee do with respect to the truck tail gate. There is no evidence justifying an assumption that his first description of the occurrence (if he gave one) was different from the 1965 recitation contained in his affidavit. If Mrs. Stewart was contemplating suit and did not early learn the version of this only eyewitness, should it be ruled she was duly diligent and entitled to a second trial on the theory that Wilson’s testimony is “newly discovered evidence”? Did plaintiff’s attorney know about Wilson and did he have such knowledge of his probable testimony as impressed him with respect to its potential value and the necessity for it to be made available at the trial? In counsel’s oral testimony in support of the new trial motion, he squarely stated that: “I advised her we should locate this Mr. Wilson”, “I further advised her on several occasions that it was very important that we find this witness”, “I think we made every effort we could to locate this man”, “After the death of her husband she may have been a little less diligent because she was a little upset”, and “Even up to the time of the trial I pointed out to her the importance of this one witness”. We must consider some further facts: Plaintiff and her attorney say that they made diligent search for this witness for at least a part of the time between September 13, 1961, when the accident happened, or between September 27, 1963, when suit was filed and the trial date of December 1, 1964, and all without success. Nevertheless, within three days after the judgment was entered on December 1, 1964, this witness Wilson was located and his written affidavit, duly sworn to on December 4, 1964, had been procured. Where was he located? Right here in Kansas City, Missouri, where he resided at 3611 Wabash. How was he located? Plaintiff says through inquiries made of her niece. Where had this niece been prior to the trial ? Well, for three months during the summer of 1964, she lived with plaintiff.

In State ex rel. State Highway Commission of Missouri v. Bloomfield Tractor Sales, Inc., et al., Mo.App., 381 S.W.2d 20, 25, the court said this:

“Generally, motions for new trial on the ground of newly discovered evidence are not favorites of the law. Public policy requires that litigation come to an end.”

And in E- v. G-, Mo.App., 317 S.W.2d 462, 468, 469:

“The courts have cast a rather jaundiced eye at motions for new trial on the ground of newly discovered evidence. While they are recognized as an occasionally necessary part of the procedure, they are treated with aversion rather than favor. They are examined with caution and construed with ‘remarkable strictness.’ Their ruling is held to be largely within the sound discretion of the trial judge, whose judgment thereon will not be overruled unless it appears to have been a manifest abuse of such discretion.” See also Fidelity and Casualty Co. of New York v. Western Casualty and Surety Co. et al., Mo.App., 337 S.W.2d 566, 574.

This approach to the question and the rule itself has long been the law in this state. We find the following comment made long ago in the case of Mayor, etc. of Town of Liberty v. Burns, 114 Mo. 426, 19 S.W. 1107, 1109:

“Hence it is said: ‘Motions of this kind are to be received with great caution, because there are few cases tried in which something new may not be hunted up, and because it tends very much to the introduction of perjury to admit new evidence after the party who has lost the verdict has had an opportunity of discovering the points both of his adversary’s strength and his own weakness.’ Moore v. Bank, 5 Serg. & R. 41; Hill, New Trials, 493. New trials on that ground should ‘be granted as an exception and refused as a rule.’ Cook v. [St. Louis &] Railroad Co., 56 Mo. [380] 382. These rules must be applied to all cases, though, as in this one, there is nothing to raise a suspicion as to the truthfulness and honesty of the new evidence.”

We do not believe that a new trial is justified in this case. The witness Wilson is the newly discovered witness. His identity by name and as an eyewitness was known long prior to the trial. His probable, if not his actual testimony, was within the knowledge of both plaintiff and her counsel for years before the trial. It was not newly discovered afterward. Were diligent efforts made to locate the whereabouts of the witness Wilson prior to the trial and were reasonably diligent efforts made to procure his presence on trial day or assemble his testimony for use in that proceeding? We do not think so. The evidentiary facts which lead us to this conclusion have already been set forth. They need not be restated. In our opinion the trial court went over and beyond its discretion in granting a new trial in this case.

For the reasons stated herein, the order granting a new trial is set aside and the cause is reversed and remanded with directions to reinstate the judgment for defendants.

SPERRY, C., concurs.

PER CURIAM.

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

CROSS, P. J., HOWARD, J., and FRANK W. HAYES, Special Judge, concur.

BLAIR, J., not participating.


author: RUARK, Judge.

text:
    FIRST PRESBYTERIAN CHURCH OF MONETT, Plaintiff-Respondent, v. George V. FEIST, Defendant-Appellant.
    No. 8523.
    Springfield Court of Appeals. Missouri.
    Dec. 9, 1965.

      William J. Hill, Kansas City, for defendant-appellant.
    Almon H. Maus, Monett, for plaintiff-respondent.
   RUARK, Judge.

In this partition case the parties are fighting over who “owns” a partition suit and will receive the benefit of Sec. 528.530 RSMo 1949, V.A.M.S. in respect to attorney fees. The facts as hereinbelow stated come from admissions and agreements of the parties in open court and in the briefs, pleadings which admit, verified motions which were not disputed, and exhibits accompanying or offered in support, and, to some extent, by reference to Butcher et al. v. McClintock, Mo., 373 S.W.2d 917. The property is four improved city lots in Barry County. Plaintiff-Respondent First Presbyterian Church of Monett, hereinafter called Church, acquired an undivided two-thirds interest as devisee under the will of Vivian Ruth Feist. Defendant-Appellant George Feist acquired title to an undivided one-third interest by virtue of certain conveyances not concerned with such will.

On January 24, 1958, the will of Vivian Ruth Feist was admitted to probate, and notice of letters testamentary was published on February 4, 1958. On July 18, 1962, Church filed this partition suit, setting up the ownership above stated and alleging that because of the improvements on the lots partition in kind could not be had, that there was sufficient personal property in the estate of Vivian Ruth Feist to pay all claims, and praying for partition sale and division of the proceeds.

The Will Contest: On October 29, 1958, Butcher and McKemy, who were daughters of George Feist, the defendant-appellant in this case, filed in the Circuit Court of Jackson County a contest to the will of Vivian Ruth Feist under which Church was devised its two-thirds interest in the lots. The plaintiffs in that case claimed to derive their interest not as heirs but as beneficiaries under a previous will (as they alleged) of date March 31, 1941. However, as appears by their first amended petition in that case, they did not offer for probate the alleged previous will until October 26, 1960, on which date it was rejected by the probate court. Defendants in the will contest filed motions to dismiss such petition on the ground that plaintiffs Butcher and McKemy were not “interested parties” and were not entitled to institute or maintain the will contest because they had not, within nine months from the first publication of letters, offered the alleged will under which they claimed for probate in the probate court of Jackson County. The petition in the will contest was dismissed with prejudice on September 23, 1963. The case was appealed but not perfected and was finally disposed of on October 9, 1964, when the Kansas City Court of Appeals dismissed the appeal.

The Specific Performance Suit: On October 30, 1958 (one day after the filing of the will contest), the aforementioned Butcher and McKemy filed in the circuit court of Barry County an action seeking to enforce as third-party beneficiaries an alleged oral contract on the part of Vivian Ruth Feist to devise the property here involved and to have a trust established. That case was tried and resulted in a judgment denying such claim on June 3, 1962. Butcher and McKemy appealed, and that appeal was disposed of by an affirming opinion in Butcher v. McClintock, Mo., 373 S.W.2d 917. Motion for rehearing was denied January 13, 1964.

The Claim Against the Estate: Defendant Feist filed a claim against the estate of decedent Vivian Ruth Feist to recover an undetermined amount equalling one-third of rents collected by her on the properties involved for a period from May 22, 1943, to January 14, 1958. We do not have the conclusion of this assault.

To return to this partition suit: Defendant-appellant Feist first filed a motion to dismiss plaintiffs petition, setting up the substance of the actions which we have above related. That motion was overruled.

Feist then filed his “Answer and Cross-Petition for Partition.” The answer set up that Church’s title was acquired solely through the will of Vivian Ruth Feist, that her estate was still being administered, and no decree of succession or distribution had been filed; that claims were pending in excess of five thousand dollars and in excess of the personalty, by reason of which the interest of the plaintiff was unsettled, in abeyance, and clouded; that the administrator was a necessary party. The answer also pleaded the facts of the will contest, and asserted that it lifted the will as the governing device, and that such contest was still pending at the time plaintiff Church filed its partition suit. In this cross-petition for partition, defendant pleaded that the plaintiffs title came only through the will of Vivian Ruth Feist, and that such will was in contest when plaintiff filed its petition for partition because an appeal had been taken and the appeal was not dismissed until after plaintiffs petition was filed. Therefore, plaintiff did not have a mature cause of action when it filed the partition suit. Defendant then asserted his right to partition (the appeal in the will contest having been dismissed by that time) and s’ought partition and sale.

On motions of plaintiff, the court struck out of the answer those portions referring to the will contest and that portion asserting the pendency of administration as a defense. It struck the whole of defendant’s counterclaim. Defendant has appealed from the “Order of February 8, 1965, dismissing the cross-petition.”

No motion for new trial was filed (Civil Rule 79.03, V.A.M.R.), and the appeal is from the order “dismissing the defendant’s counter-petition.” We consider the order striking the counter-petition because defendant had no right to maintain it as the equivalent of a dismissal with prejudice. Heard v. Frye’s Estate, Mo.App., 336 S.W.2d 729; Ezell v. Ezell, Mo.App., 348 S.W.2d 592. And that is the only thing out of this whole mess which is before us.

First we must ascertain our jurisdiction. Dudeck v. Ellis, Mo., 376 S.W.2d 197, 204. Is the order of dismissal an appealable judgment? Appeals cannot be taken piecemeal (Swan v. Stuart, Mo.App., 350 S.W.2d 832, 833; Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 380) unless separate trial and judgment is ordered (Civil Rule 82.06) or except when the judgment necessarily settles all the issues between the parties. J. G. Jackson Associates v. Mosley, Mo.App., 308 S.W.2d 774, 776; Erhart v. Todd, Mo., 325 S.W.2d 750, 755. But under Sec. 512.020, V.A.M.S., interlocutory orders in partition suits are ap-pealable if they “determine the rights of the parties.”

The claim of pendency of the suit by other parties because of a “contract to devise” (if we are to be concerned with it) involved an issue to be determined by another court; and that final determination had been made unfavorably to the plaintiffs in that case prior to the judgment and appeal in this case. That issue, if it was a proper issue in this case, is done, and the point was in fact abandoned by the defendant.

The defense of “administration pending” was also apparently abandoned. But if not so abandoned it could not constitute an issue in this case. The question of claims and possible subjugation of the real estate will be determined by the probate court, and the result of that determination can affect only the final order of distribution in this case. Civil Rule 96.14; Secs. 473.260, 473.263, 473.137. See Winn v. Maddox, Mo.App., 263 S.W.2d 470; Tanner v. Tanner, 199 Mo.App. 145, 203 S.W.2d 239. The parties are in agreement that their respective titles are two-thirds and one-third and that the land cannot be divided in kind. The only real issue left between them at this time is which one of them may maintain the action in partition. Klorner v. Nunn, Mo., 339 S.W.2d 838; Hahn v. Hahn, Mo., 297 S.W. 2d 559. We conclude the judgment is appealable.

The rule is that the first petition in partition appropriates the cause of action and has priority. Applegate v. Brown, Mo., 344 S.W.2d 13, 17.

The appellant’s theory is that a premature suit is no suit and may not be maintained even though the plaintiffs later, after filing their suit, acquire a mature cause of action (Herbig v. Herbig, Mo.App., 245 S.W.2d 455; Jegglin v. Orr, 224 Mo.App. 773, 29 S.W.2d 721; 1 Am.Jur.2d Actions, Sec. 88, p. 617, Sec. 90, p. 619) and that there can be no right to sue in partition by one who does not have a “mature” interest in the land. Appellant contends that, although a title of a devisee vests when the will is admitted to probate, upon the filing of a contest the judgment of the probate court admitting to probate is vacated and becomes naught (Johnson v. Brewn, 277 Mo. 392, 210 S.W. 55); and this is demonstrated by the fact that once a contest is filed it cannot be dismissed; the proponents have (again) the burden of establishing it in circuit court; they must make their proof, and it must (again) be established that the will is the will of the decedent. State ex rel. Ashton v. Imel, 243 Mo. 180, 147 S.W. 989; State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W.2d 713. That being the case, the title which had been vested by virtue of the probate order (and which had to be some place) was like a bird on a long tether. It flew back and perched on the legal heirs throughout the pendency of the contest and until the question was finally settled by dismissal of contestants’ appeal by the Kansas City Court of Appeals on October 9, 1964; or, if we have misunderstood appellant’s theory, then it is that title was not divested (the bird stayed perched), but it was a precarious title subject to divestment and because of such was not of sufficient quality to support a partition suit during the pendency of a will contest for the obvious reason that in event the contest was successful the partition would have been between the wrong parties. As to the appellant’s case for partition (which is attempted to be instituted by counterpetition), he waited until the will contest had been finally determined by dismissal of the appeal. The bird had flown back, and the title had finally vested in the Church, or the uncertainty as to plaintiff’s title had been removed, whichever it was. Hence, his suit was the first maintainable' one which was filed and the Church’s action must be regarded as of no consequence, an irresponsible, intervention by an interloper without license to lope. For the purposes of this opinion only, we will accept the theory (whichever it is) so advanced.

A will contest is a creature of statute. Cole v. Smith, Mo., 370 S.W.2d 307, 309. By Sec. 473.083, V.A.M.S., “any person interested” in the probate of a will may contest. Sec. 473.050 provides that no proof shall be taken of any will, nor shall any certificates thereof be issued, unless the same has been presented to the court within nine months of date of first publication of the notice of granting letters testamentary or of administration. Returning to Sec. 473.083, the “interested” party must appear within nine months after the date of probate or rejection of the will and by petition to the circuit court contest the validity of the will or pray to have a will proved which has been rejected; thereupon an issue shall be made up whether the writing is the will of the testator.

As we read Sections 473.050 and 473.083 together, it is apparent that one claiming under a will must have presented it for probate or rejection within nine months from notice of letters and, if not, the will so (afterwards) advanced has no efficacy in transferring any title. It cannot be admitted to probate. See State ex rel. Plymesser v. Cleaveland, Mo., 387 S.W.2d 556; State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347. The jurisdiction of the circuit court is only derivative from the probate court. State ex. rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73, 80 and cases cited; Ebling v. Hardesty, Mo.App., 354 S.W.2d 348(5). The circuit court is without such derivative jurisdiction to entertain a suit to establish or to contest a will which has not been presented for probate. Bauer v. Benes, Mo., 289 S.W.2d 451; Breeding v. Pack, Mo., 164 S.W.2d 929.

In State ex rel. Shriners’ Hospital for Crippled Children v. Hensley, Mo.App., 385 S.W.2d 820, it was held that the probate court had no jurisdiction to receive proof and either admit or reject a (prior) will which had not been presented for probate within the nine-months period and that such a (prior) will could not be interjected into a will contest.

Ebling v. Hardesty, Mo.App., 354 S.W.2d 348, is not to the contrary. That case approves the principle that contestant must have an interest, but in that case plaintiff’s petition showed on its face an interest as heir; the defendant movant in a “speaking demurrer” motion interposed intervening wills; and there was no contention as to whether such wills had been offered for probate within the statutory period so as to foreclose plaintiff’s interest. Also, in order to hold plaintiffs had no interest, the court would have been forced to determine whether all five previous wills were invalid. Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902, is distinguishable because the fact of “no interest” did not appear on the face of the petition. Campbell v. St. Louis Union Trust Company, 343 Mo. 1041, 124 S.W.2d 1068, quotes from the Smith case, loc. cit. 1070, “Moreover, a suit to contest a will, brought by a party in interest, the petition stating a- cause of action, cannot be dismissed without an adjudication upon the will. The filing of such suit has the effect of vacating the judgment of the probate court admitting the will to probate * * The suit cannot be dismissed if the. petition is brought by a party in interest and states a cause of action. Callahan v. Huhlman, 339 Mo. 634, 98 S.W.2d 704, 707.

The “interest” of one who may contest is not the interest of every busybody or tomdicary who may not approve of the will. It must be a financial or property interest derived either from inheritance or under a will. The person so contesting must either gain or lose by virtue of the will in question. State ex rel. Damon v. McQuillin, 246 Mo. 674, 152 S.W. 341; Gruender v. Frank, 267 Mo. 713, 186 S.W. 1004; Bauer v. Benes, Mo., 289 S.W.2d 451; Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316. Plaintiffs Butcher and Mc-Kemy in the will contest did not, and could not, claim any interest by inheritance. They were the daughters of George Feist, who was a brother of the testatrix, and George Feist was very much alive (see Butcher v. McClintock, Mo., 373 S.W.2d 920). They claimed under an alleged previous will of testatrix. This will was not offered to the probate court until October 26, 1960, which was almost two years after letters testamentary and first publication of notice of granting of letters testamentary. They could claim no interest under such previous will because said will had not been admitted to probate, and could not, either by the probate court or by the circuit court in this contest, be declared to be the last will and testament of Vivian Ruth Feist.

It is said that the institution of a will contest vacates the probate of the will so contested; but a necessary corollary is that the institution of such a contest must be by one having the right to question that will. Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W.2d 935, 129 A.L.R. 316. It should not be within the power of a stranger or interloper having no interest in the estate to upset and destroy the solemn judgment of the probate court in admitting the will to probate. If they had no interest, they had no cause of action (Gruender v. Frank, 267 Mo. 713, 186 S.W. 1004) and, therefore, no right to bring or maintain their contest, and the only judgment which the circuit court could enter was dismissal of such suit (Ewart v. Dalby, 319 Mo. 108, 5 S.W.2d 428), and, there being no cause of action, the judgment of the probate court was never vacated. This being the case, respondents here have at all times since the probate of the will owned a certain undivided two-thirds interest in the land, and they so owned it when partition suit was commenced. Since they were first in appropriation of the partition, the defendant-appellant is the intruder, and the dismissal of his counter-petition was proper.

The judgment is affirmed.

STONE, P. J., and HOGAN, J., concur.

      . Our emphasis.


author: DAVID R. CLEVENGER, Special Judge.

text:
    Gregory Allin DOBBINS, by his mother and next friend, Beverly A. Dobbins, Appellant, v. Alice FREEMAN, Cornelius Gamble, a/k/a Carl Gamble and Corrine Gamble, Respondents.
    No. 24265.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.
    Downey, Sullivan & McCormick, Leo L. McCormick, Kansas City, for appellant.
    Nolan J. Hepburn, Kansas City, for respondents.
   DAVID R. CLEVENGER, Special Judge.

Plaintiff has appealed from a judgment of the Circuit Court of Jackson County, Missouri (sitting in Kansas City), denying his motion to set aside a judgment of non pros, or, in the alternative, a motion for a new trial.

The statement of facts set forth in plaintiffs brief is adopted, in the main, by the defendants.

On January 9, 1964, Gregory Allin Dobbins, by his mother and next friend, Beverly A. Dobbins, filed a petition against the defendants in the Magistrate Court of Jackson County, Missouri, claiming damages as the result of injuries received from a vicious and unwarranted attack by a dog owned or harbored by the defendants. A default judgment was entered on behalf of plaintiff on May 7, 1964, and, on the same day, defendants filed an appeal to the Circuit Court of Jackson County, Missouri, where it was then assigned to one of the divisions of the court.

As will be noted hereafter, it is our opinion that certain rules adopted by the Circuit Court of Jackson County, Missouri, in banc, which became effective on September 14, 1964, are pertinent to the issue before us, and more particularly Rule 16, relating to trial setting of cases. This rule provides:

"1. Each trial division shall set its trial docket * * * and shall give notice thereof in ‘The Daily Record’ and ‘The Kansas City News Press’ * * * list all of the cases set for trial for each week * * * which list shall contain the names of trial counsel”.

Pursuant to the above “Rule 16, Trial Settings”, there was published in The Daily Record a notice listing the case here before us on the non-jury docket for a trial setting on November 23, 1964. It is admitted that on the day fixed by notice, plaintiff appeared and announced ready for trial. Neither the defendants nor their counsel appeared. Later, on the same day, plaintiff’s counsel did locate defendants’ counsel and they met with the court in chambers. It was there agreed that the case would be set for trial on December 22, 1964. Following the meeting in the court’s chambers, there was a written stipulation for trial setting prepared by respective counsel, and it was mailed to the court. This stipulation of trial setting designated the same day as was agreed upon in chambers. The record shows that the written stipulation was not shown filed until December 22, 1964.

On page four of the defendants’ brief, we find the following statement:

“It is not denied that subsequent thereto a mailing was received by both counsel that the case would be called on a non-jury docket on December 28, 1964. And it is not denied that this same information appeared in The Daily Record, a legal publication used extensively for such purposes in Kansas City”.

It further appears from plaintiff’s statement of facts (adopted by defendants) that counsel for plaintiff, upon receiving notice by mail that the court had set the case for a date subsequent to that stipulated and agreed upon for trial, called counsel for defendants and so advised him of such notification from the court and of the trial date setting of December 28, 1964. This telephone conversation did not result in any agreement between counsel concerning any change as to the previous date of trial setting so stipulated by them, nor was any other agreement made concerning the trial date of December 28, 1964.

Plaintiff’s counsel appeared at the call of the court docket on December 28, 1964, at which time he was advised by the court that judgment of non pros, had been entered against the plaintiff on December 22, 1964. The transcript of the record before us is very meager and does not disclose whether or not the defendants appeared on December 22, 1964. It is only by reason of a statement in respondent’s brief that we are advised that they did appear before the trial court on that date and that a call was made in an attempt to locate counsel for plaintiff.

The record discloses that there was timely filed on behalf of the plaintiff a motion to set aside the judgment of non pros, entered by the court on December 22, 1964, or, in the alternative, a motion for a new trial.

The transcript does not show that there was offered in evidence the court’s notice mailed to the plaintiff’s counsel, the notice in The Daily Record, or the rules of the Jackson County Circuit Court. However, the defendants did not controvert the statements in plaintiff’s brief concerning these matters, nor did they deny them in the oral argument before this court. Therefore, these matters will be taken as true and considered as if in fact a part of the record. Street v. Lincoln National Life Insurance Company, Mo.App., 347 S.W.2d 455, 1. c. 459. See also Dent v. Investors’ Security Ass’n, 300 Mo. 552, 254 S.W. 1080.

The trial court, on January 8, 1965, overruled plaintiff’s motion.

The plaintiff’s contention is that the court erred in dismissing plaintiff’s cause because it was an oppressive exercise of judicial discretion, contrary to substantial justice, and for the further reason that the plaintiff was denied a hearing upon the merits, contrary to substantial justice. In effect, plaintiff’s position is that, upon notice being mailed to his counsel and the publication appearing in The. Daily Record, setting the case for December 28, 1964, he had the right to rely upon such notices that his case had been reset by the court for December 28, 1964, and, therefore, the court had no authority to make its order dismissing his cause at a date prior to the date set for the hearing.

The defendants, by their brief, state that the action of the court was not in error, in that the dismissing of plaintiff’s cause was not an oppressive exercise of judicial discretion; that the court has inherent power and much discretion to dismiss for failure to prosecute with due diligence; and, further, that the dismissal was not a dismissal with prejudice and therefore plaintiff’s cause of action was not foreclosed and he could refile his case.

We have reviewed all the cases cited by both the parties and do not take issue as to any of the rulings in any of the cases. However, these cases do not have for consideration, nor do they rule a set of facts such as we have before us, where an order of dismissal was made on a day prior to that set by the court’s notice.

The result of considerable research fails to disclose any case law in this state as to the point which we think controls the issues before us, and, therefore, this case may well be one of first impression.

It is our opinion that there is presented to us a single issue. Did the trial court, after giving notice by mail to counsel for plaintiff that the case was set for December 28, 1964, and by listing the case in The Daily Record, confirming the trial date of December 28, 1964, have the right or authority to enter a judgment dismissing plaintiff’s cause of action, prior to the date set by notice and publication? We think not. Are we to say that a court will not be bound by its own notice? The answer is most obvious. If the court is to demand the adherence by others to its notices and orders, then, it must be the first to abide by them.

The courts have the right to and do control their dockets, and they are not bound by any written stipulations entered into by counsel as to trial settings. However, we are of the opinion that the court, after having given its notice of a trial date, was bound by its notice and did not have the authority to order a dismissal of plaintiff’s case at a date prior to the date given by its notice. To rule otherwise would strike down the validity of any notice or order of a court and would create a complete state of confusion in the conduct of the affairs of our courts.

It is our judgment that, absent any rules of the Circuit Court of Jackson County, the action of the trial court, in dismissing this case on a date prior to that of its notice for trial setting, was not only improper, but was manifestly an injudicious act on the part of the court and should not be permitted to stand.

We are also of the opinion that the action of the trial court, in refusing to set aside its order dismissing plaintiff’s petition, was in error for an additonal reason. The law is that, to convict a trial court of an abuse of its juducial discretion, or of having acted arbitrarily in refusing to set aside a judgment by default, the party seeking such order must show (1) that his failure not to appear was for good cause and not by reason of negligence, and (2) that he has a meritorious cause of action. It is our opinion that by reason of the court’s notice, setting the case for December 28, 1964, the plaintiff had the right to rely on such notice and had a valid reason for not appearing at an earlier date and, therefore, was not negligent. Plaintiff complied with the first requirement imposed upon him by the law. We find that plaintiff was not required to meet the second proposition because that issue is not raised by the defendants. Even if defendants had raised this issue, it is our opinion that plaintiff did meet the second test, since he was successful in obtaining a judgment against the defendants (even though by default) in the magistrate court and, therefore, had a meritorious cause of action. In view of these facts, it clearly appears that the trial court abused its judicial discretion by dismissing plaintiff’s petition. See Levee District No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 1. c. 617; Parks v. Coyne, 156 Mo.App. 379, 137 S.W. 335, 1. c. 339; Hall v. McConey, 152 Mo.App. 1, 132 S.W. 618; Tucker v. St. Louis Life Insurance Co., 63 Mo. 588.

The defendants cited, in support of their position, the case of Bindley v. Metropolitan Life Insurance Company, Mo.Sup., 335 S.W.2d 64. This case is readily distinguishable from the case at bar, for the facts there show more than two and one-half years elapsed before plaintiff took any step to reinstate her case, and the court very properly held that the plaintiff had not been diligent in the prosecution of her case. In the case before us, the plaintiff, on the seventh day following the court’s order dismissing his case, filed his motion to set aside the order. The plaintiff was not negligent, but to the contrary, most diligent at all times in prosecuting his action.

In view of the finding here made, we deem it unnecessary to rule any of the other issues presented.

Considering the facts before us, we must and do rule that the judgment of the trial court, made and entered in this case on December 22, 1964, dismissing plaintiff’s cause of action, was improper and without authority and the same should be set aside, and this case reinstated. Therefore, the judgment of this court is that the cause be remanded, with directions to the circuit court to set aside its order made dismissing plaintiff’s cause of action, and that it be further ordered to reinstate the case on the docket.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


author: HOWARD, Judge.

text:
    LaVerna DeWALD, Appellant, v. W. S. MORRIS, Successor Guardian of the Estate of John J. DeWald, Incompetent, Respondent.
    No. 24288.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.
    Edmund B. Smith, Meyer, Smith & Pen-ner, Kansas City, for respondent.
   HOWARD, Judge.

This is a proceeding on a claim for services rendered to the dependent mother and stepfather of an incompetent for $5,000.00 computed at the rate of $50.00 per week, against the estate of the incompetent. The claim was disallowed by the probate court and on appeal the circuit court sustained a motion for directed verdict at the close of plaintiff’s evidence. We shall refer to the claimant LaVerna DeWald as plaintiff and to W. S. Morris, guardian of the Estate of John J. DeWald, as defendant.

The incompetent John Joseph DeWald has been under guardianship at least since 1921. More than fifty years ago Mrs. De-Wald, mother of the incompetent, remarried. Her name since such remarriage was Jennie Bledsoe. Her husband was Richard Bledsoe. Mr. Bledsoe, after his marriage to Jennie Bledsoe, helped raise the incompetent as his son. For many years Jennie Bledsoe had been the guardian of the incompetent and had also been considered a dependent of her incompetent son, John DeWald. For at least the last several years the probate court had made an allowance of $180.00 per month from the Estate of John J. DeWald for the support and maintenance of Jennie Bledsoe. In 1961 Mr. and Mrs. Bledsoe were both 87 years old, feeble and in failing health. Their care was a problem and when members of the family asked the advice of the attorney for the estate of John J. DeWald (who seemed to be well known to the entire family), it was suggested that they should be put in a nursing home. This would cost $175.00 per month each. When Mrs. Bledsoe was advised of the plan to put her in a home, she fell to her knees crying and begged and pleaded not to be sent to a home. Mr. Bledsoe flatly refused saying: “This is my home. I will die here.” After discussion among the family and with Mr. and Mrs. Bledsoe, LaVerna DeWald stated that she would take care of them; that she and her husband would move in with Mr. and Mrs. Bledsoe. Mrs. Bledsoe promised to give her home to LaVerna and her husband in payment for such care.

LaVerna DeWald had been married to Frank DeWald, Jr. for about two months at this time. Frank DeWald, Jr. was the grandson of Jennie Bledsoe and the nephew of John J. DeWald, the incompetent. Frank had lived with his grandmother and taken care of her and Mr. Bledsoe for many years up until the time of his marriage, at age 35, when he moved out of the Bledsoe house and set up housekeeping with his wife.

LaVerna DeWald and Frank did move in with Mr. and Mrs. Bledsoe on September 29, 1961, and LaVerna took care of both Mr. and Mrs. Bledsoe on a 24 hour, 7 day a week basis, until Mr. Bledsoe died February 27, 1962, and continued to take care of Mrs. Bledsoe until she went to the hospital early in December of 1962. Mrs. Bled-soe died December 12, 1962.

It appears that LaVerna did all the washing, ironing, cooking and housekeeping, as well as nursing both patients and cleaning up after them when they no longer had control of their bodily functions. The evidence shows that all this work was done in an excellent manner, and that she kept the house and both patients in a spotlessly clean condition.- When they moved in with the Bledsoes, LaVerna and Frank redecorated the house, with the consent of the attorney for the incompetent’s estate, who purchased a new stove for the house, at least inferentially out of the funds of the estate. Frank DeWald testified: “ * * * Mr. Smith was nice enough to let us go ahead and redecorate it, bought a new stove.”

As previously stated, Mrs. Bledsoe had promised to will her home to LaVerna and Frank DeWald in payment for the care given to Mr. and Mrs. Bledsoe. However, Frank DeWald testified that when Mr. Bledsoe died, “ * * * the house was signed over to the Veterans Administration or estate, I guess it was, for my grandfather’s funeral expenses”. After the house was gone, Mrs. Bledsoe repeatedly promised LaVerna that she would be paid, and well paid, for her work by the estate of her son John J. DeWald, the incompetent. It was testified that Mrs. Bledsoe stated that she never had any trouble getting anything she wanted from the estate, including cars and everything else, and that she was dependent upon her incompetent son and was supported by his estate.

During all the time up to her death, Mrs. Bledsoe was mentally alert, although physically ill and feeble. She was the guardian of her incompetent son, John J. De-Wald, and it appears that, in addition to the regular allowance for support made to Mrs. Bledsoe from his estate, the estate also paid for medicine for Mrs. Bledsoe when billed by the drug store which filled her prescriptions. Likewise, after the house was signed over to the estate on the death of Mr. Bled-soe the estate paid the rent on an apartment occupied by Mrs. Bledsoe until she entered the hospital on her terminal illness.

At the close of plaintiff’s evidence, a motion for directed verdict was filed by the defendant on the basis of insufficiency of the evidence. This motion was sustained by the trial court and verdict and judgment for the defendant followed. On this appeal plaintiff contends that the trial court erred in directing a verdict for defendant because the evidence adduced by plaintiff was sufficient to make a case for the jury and also that the trial court erred when it excluded evidence concerning the value or financial status of the estate of John J. DeWald.

The brief filed in this court by defendant makes only one point and that is that this matter is governed by the provisions of the Uniform Veterans’ Guardianship Law and particularly Section 475.445 RSMo 1959 and V.A.M.S. (all statutory citations are to RSMo 1959 and V.A.M.S. unless otherwise noted). Although several witnesses testified that John J. DeWald was now, and for many years had been, a patient in various Veterans Administration hospitals or facilities, there was no other evidence before the court which would bring this proceeding within the provisions of the Uniform Veterans’ Guardianship Law. Section 475.445 supra provides that a guardian shall not “apply any portion of the income or the estate” of a veteran whose estate is subject to the Uniform Veterans’ Guardianship Law for the support or maintenance of any person other than the ward, or his spouse and minor children, except upon prior order of the Probate Court after a hearing. Notice of such petition and hearing are required to be given to the Veterans Administration. The important words in the above provision are “income” and “estate”. Section 475.480 RSMo 1959 is likewise a part of the Uniform Veterans’ Guardianship Law. It provides that the uniform law shall apply “to all income and estate” of a veteran whether the guardian was appointed under the Uniform Veterans’ Guardianship Law or under any other provisions of law. The words “income” and “estate” are not used in these statutes in their general sense, but in a special and restrictive sense, as set out in Section 475.-380 RSMo 1959, which gives special definitions to such terms. Said section provides : “As used in sections 475.380 to 475.-480: * * * (3) ‘Income’ means moneys received from the Veterans Administration and revenue or profit from any property wholly or partially acquired therewith; (4) ‘Estate’ means income on hand and assets acquired partially or wholly with income; * * Thus, it is only when we are dealing with moneys received from the Veterans Administration or property, or income from property, acquired with such benefits received from the Veterans Administration that the Uniform Veterans’ Guardianship Law, and particularly Section 475.-445 relied on by defendant, applies. In this case there is absolutely no evidence showing that these provisions are applicable to these proceedings. Even if we were to assume or infer (which we do not) from the mere fact that the incompetent John J. DeWald is and long has been a patient in a Veterans’ Administration hospital, that the estate has income, or assets derived from income, from the Veterans’ Administration, there is no showing that the estate does not have either income or assets, or both, derived from sources other than the Veterans’ Administration. It is also significant that the Veterans’ Administration, although it has a right so to do, is not appearing and contesting the allowance of this claim. See McKay v. Snider, 354 Mo. 674, 190 S.W.2d 886.

The only authority cited by defendant in support of his contention that the Uniform Veterans’ Guardianship Law is applicable to the present proceeding is the case of In re Hoerman’s Estate, Mo., 247 S.W.2d 762. This case is not in point. It involved a mother who was guardian of her incompetent veteran son. For thirty years she had received checks from the Veterans’ Administration made payable to her as guardian, which constituted disability payments under Government War Risk insurance. She cashed these checks as received and used the money herself instead of putting the money into the estate of her incompetent son. During part of this time, an allowance was made out of the estate for her support and when it was discovered that she was using part of such allowance to help support her other adult children, such allowance was reduced. When the conversion of the checks was discovered, the mother was removed as guardian. At the time of her final settlement she secured an order from the probate court making an additional monthly allowance to her, for her support and maintenance for the past thirty years, to cover the checks which she had cashed and used. On exceptions to her final settlement, the court held that the order retroactively making an allowance to the mother was not supported by the evidence, because during at least seven years of this time, she was not dependent upon the estate, but was supported by her husband, who himself died leaving considerable estate. Also the evidence showed that during other portions of the time covered, the allowances made out of the incompetent’s estate were more than adequate for her support and no additional allowance therefor was justified. Thus the court held that the order was void. The court also pointed out that the real purpose of this retroactive allowance was to cover the conversions by the mother and for that reason such order was invalid. The court did discuss what is now Section 475.445, but its decision is not based thereon.

Furthermore, even if we were to find that Section 475.445 was applicable to this proceeding, such statute would neither justify nor require the directed verdict entered in this case. No money from the estate has as yet been “applied” for the support of Mr. or Mrs. Bledsoe. The present proceeding is an application to the court to have money from the estate applied for such support and the hearing on this claim and its determination would comply with the statutory requirement for hearing and prior order. Giving notice of this claim and the hearing thereon to the Veterans Administration would comply with the notice requirements of this statute and the court could then proceed to make an allowance in the proper amount. The transcript in this case does not reveal whether or not such notice was given. Since this case must be retried as pointed out hereinafter, any deficiency in notice can be supplied if claimant deems it advisable.

Thus we are relegated to the provisions of Section 475.125 and any other applicable provisions of the general law on guardian-ships and incompetents for a determination of the issues here presented. Section 475.-125 authorizes the probate court to make orders “for the maintenance of his (the insane ward’s) family * * * according to his means”. It has been specifically held in the case of State ex rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, that a mother who is in fact dependent upon her incompetent son comes within the meaning of the word “family” as used in this statute, and that therefore the probate court does have jurisdiction to entertain a petition to authorize the expenditure of funds from the incompetent’s estate for the support and maintenance of the mother. The court held that the probate court had jurisdiction to “authorize such an allowance to be made where there is sufficient evidence adduced at the hearing on the application to satisfy the court that the incompetent, if he were sane, would himself make the contribution.” See also Citizens’ State Bank of Trenton v. Shanklin, 174 Mo.App. 639, 161 S.W. 341, where this court pointed out that expenditures from a guardianship estate were proper where the court was convinced that the incompetent would make such expenditures if he were competent and able to manage his own affairs. The court said: “It seems the court, if the estate will justify it, may authorize to be done what it is convinced the insane person would have done had he been in his right mind.”

In the present case the evidence shows that Jennie Bledsoe was in fact, and long had been considered by the probate court to be a dependent of her incompetent son John J. DeWald. Both Mr. and Mrs. Bledsoe were in need of care and plaintiff rendered long and faithful service in providing such necessary care. There was no blood relationship between LaVerna De-Wald and either Mr. or Mrs. Bledsoe, thus the law will not imply an intent to render gratuitous services but on the contrary, without evidence requiring a different conclusion, these facts alone would be sufficient to show that the services were neither intended to be nor expected to be gratuitous. See Poppa v. Poppa, Mo.App., 364 S.W.2d 52, where an implied contract to pay for farm services was found to exist between brothers, and Boyher v. Gearhart’s Estate, Mo.App., 367 S.W.2d 1, where the court found an implied contract in the case of a niece caring for her uncle, who was aged and ill. See also Ramsey v. Hicks, 53 Mo.App. 190.

Bennett v. Adams, Mo.App., 362 S.W.2d 277, cited and relied on by the probate court in denying this claim turned on the failure of proof occasioned by the claimants’ inability to testify because of the dead man’s statute. It is not applicable here where there was ample testimony as to the quality and quantity of LaVerna’s services. The evidence here shows that Mrs. Bledsoe did not expect that LaVerna DeWald would render such care gratuitously, but expected to pay for such services; she promised to give her house to LaVerna and her husband in payment, and made a will to carry out such promise. When such will became ineffective, because Mrs. Bledsoe signed over the house to the incompetent’s estate to cover Mr. Bledsoe’s funeral expense, Mrs. Bledsoe then repeatedly promised LaVerna that she would be paid from her incompetent son’s estate, which estate had supported Mrs. Bledsoe for many years.

Thus we have necessary and valuable services rendered to Mrs. Bledsoe, under circumstances where it is clear that there was no intention to render the services gratuitously, and where Mrs. Bledsoe expected to pay for such services. The evidence is sufficient to make a case for the jury and the trial court erred in directing a verdict for defendant.

No order of the probate court was secured prior to the rendering of such, services authorizing the estate to pay therefor. However, such prior order is not necessary. Mrs. Bledsoe, as guardian, could have paid for such services out of the moneys of the estate. If she had done so, she would have taken the risk that when credit was claimed for such payment in her settlement, the court might disallow part or all thereof. However, the absence of such a prior order does not militate against the propriety of paying for the services. See the early cases of Guion v. Guion’s Admr., 16 Mo. 48 and Brent v. Grace’s Admr., 30 Mo. 253, where it is said, 1. c. 256:

. “The guardian may, if he chooses, apply in the first instance for an order and appropriations; but if he does not, and takes the risk of having his accounts disallowed when he makes his settlements, that is his own concern, and his omission to do so is no fraud upon his award. The court, in either case, determines whether the expenditures are necessary and proper; and allowing accounts for expenditures already incurred is, in effect, the same as making a formal order for appropriations beforehand, and equally satisfies the statute”.

This holding has repeatedly been adhered to down through the years. See State, to Use of Smith v. Martin, 18 Mo.App. 468; Fitzsimmons v. Fitzsimmons, 81 Mo.App. 605; In re Lissner’s Estate, 233 Mo.App. 1121, 129 S.W.2d 1067; Cross v. Rubey, Mo.App., 206 S.W. 413; St. Vincent’s Sanitarium v. Murphy, Mo.App., 209 S.W.2d 560; Williams v. Vaughan, 363 Mo. 639, 253 S.W.2d 111.

As a matter of fact we do not have a case of the guardian making payment and then asking for approval by the court. No payment has been made. This is an action by one who has provided necessary services to secure payment for such services by filing a claim against the estate. In such circumstances, no prior order is required. Where the services are necessary, as they were in this case, recovery on such claim can properly be had. In St. Vincent’s Sanitarium v. Murphy, supra, the services were rendered to the incompetent, here they were rendered to the dependent mother of the incompetent. In both instances such services were necessary and valuable. In both instances our statutes authorize use of funds of the incompetent’s estate for such purposes on a proper showing. The court approved recovery in the St. Vincent’s case supra and plaintiff in the present case should recover. The amount of such recovery is to be determined by the trier of facts and it may be well to set out here, as said in Boyher v. Gearhart’s Estate, Mo.App., 367 S.W.2d 1, that there is no need for evidence as to the value of nursing and domestic services, as the triers of fact, from their general knowledge, can themselves place a value thereon.

What we have said heretofore applies primarily to that part of the claim which is for services rendered to Mrs. Bledsoe. Claimant also nursed Mr. Bledsoe until his death on February 27, 1962. Since this case must be retried the court should be guided by the principles set forth herein and in State ex rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, and Citizens’ State Bank of Trenton v. Shanklin, 174 Mo.App. 639, 161 S.W. 341, in considering that part of the claim which is for services rendered to Mr. Bledsoe.

Point two of plaintiff’s brief complains of the action of the court in excluding evidence showing the value or financial status of the incompetent’s estate, and some past expenditures allowed out of the estate for the use of the mother, Mrs. Bledsoe. In view of the fact that a retrial of this case will be necessary, an extended discussion of this problem is not required. However, we do point out that Section 475.125 provides for the maintenance of the family of an incompetent “according to his means”. This refers to the “means” of the incompetent. Thus proper evidence as to the financial status of the estate which is to pay for the services in question should be admitted to assist the jury in arriving at a determination of the propriety and necessity of the services and the compensation to be awarded therefor. See Citizens’ State Bank of Trenton v. Shanklin, 174 Mo.App. 639, 161 S.W. 341 and St. Vincent’s Sanitarium v. Murphy, Mo.App., 209 S.W.2d 560 and cases therein cited.

Because of the error in granting a directed verdict for defendant, the judgment of the trial court is reversed and the cause remanded for new trial.

CROSS, P. J., and DOUGLAS W. GREEN, Special Judge, concur.

BLAIR, J., not participating.


author: SPERRY, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Forrest G. RIDGWAY et al., on exceptions of Raymond G. Sims and Nelsie Opal Sims, Respondents-Defendants.
    No. 24367.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Robert L. Hyder, Joe Bill Carter, Jefferson City, for appellant.
    Hulen & Hulen, Moberly, for respondents.
   SPERRY, Commissioner.

Plaintiff instituted proceedings for condemnation of land owned by various parties, including Raymond G. and Nelsie Sims, referred to herein as defendants. Plaintiff admitted damages of $6,500.00. Trial to a jury in circuit court resulted in a judgment for defendants in the sum of $15,000.-00. Both parties appealed.

Defendants owned a contiguous tract of ninety-one acres. It was roughly rectangular in shape, except that a rectangular piece at the northwest corner was not included. The tract fronted Highway K, a state road on the north, for a distance in excess of one fourth mile, and extended southward. At the northwest corner, lying east of the rectangular piece of land not included in the tract, were located a modern six room house, a barn, five out buildings and a well. This tract lies within the city limits of the City of Cairo, in Randolph County, this state. The city limits bound it on the south.

Plaintiff took, for improvement of Highway 63 cut off, a strip beginning on Highway K and running south through the entire length of the farm, consisting in all of about ten acres, thereby leaving about forty acres on each side of the newly located Highway 63.

In addition to the structures heretofore mentioned, there is another barn and a well located in the southern part of that portion of the farm on the west side. There are no improvements on the east side of 63 cut off. Plaintiff also took a strip off of the north side of this property, contiguous to Highway K, so as to limit access to Highway K in front of the improvements, except through a gate on the west side of defendants’ land, and for several hundred feet east thereof. Plaintiff also took a rectangular piece out of the east side tract, for “channel change”, and out of the west side tract for “ponding”, adjacent to a culvert crossing the highway at this point. This “ponding” area will, ordinarily, have from two to three feet of water in it. A total of about ten and forty-five hundredths acres of land was taken.

Plaintiff, at the outset of the trial, introduced a drawing showing defendant’s land as it appeared after the taking. It also introduced exhibit A, consisting of fourteen sheets showing Highway 63 cut off, together with the new highway construction, some showing “cross overs” from one tract to another, of lands owned by persons other than defendants, whose land is divided by the right of way. No such cross over was provided for defendants’ property, as is shown by the plot of defendants land. Plaintiff constructed a concrete culvert across the right of way, extending from the east tract to the west tract. As originally planned it was six feet wide by four feet high, connecting the “channel change” and the “ponding” areas. This was inadequate for cattle to cross through and defendants were permitted to pay $360.00 and the culvert was raised to six feet in height. There was evidence to the effect that the structure was of limited value as a cattle crossing and of no value to defendants for any other purpose. The evidence was to the effect that, because of construction of the cut off and of the limitation of access from defendants’ farm to Highway K, defendants had no access to the east tract except by going through a tract owned by others, to the south of this farm, and using such landowners’ cross over, then entering their own land lying to the north, from the right of way. There was evidence that they might be able to get permission from plaintiff to build an access into the east tract, from Highway K, at the extreme eastern edge of their land. Such a construction would be expensive and difficult. Defendants had no water on the east tract but ran a line under the highway from a well in the southern part of the west tract.

Defendants owned, rented, and farmed almost four hundred acres of land lying on the north side of K, east of their home. That land was used for production of cattle and feed. The cattle were fed on the home farm, the northern portion of which was in good blue grass, and the southern portion of which was row cropped. The feed lot, about four acres, and a barn, were located in the southern portion of the west tract, near a well. All of the land operated by defendants constituted one farm unit and was operated from the home farm.

There was evidence to the effect that defendants had received offers to purchase lots off of that portion of their land abutting Highway K, but that, after the condemnation, including the limited access to K, such lots could not be reached from Highway K except by construction of a road through the gateway entrance, west of the house, thence south, thence east behind the house and other improvements previously existing. The roadway would necessarily be located behind the lots, if any were sold, and there would be no other access to a public road except over that roadway.

There was evidence tending to prove that there would be “point” rows on the east tract because of the curving course of the right of way, and that this would lessen the usability and productivity of the east tract. A number of qualified witnesses testified to the effect that the conditions brought about as above stated, damaged the remaining tracts heavily. Some stated that defendants, prior to the taking, had a farming unit, afterwards, they had two completely separate tracts of land; that produce from the east tract could not be moved to the west tract except by permission of another landowner, nor could farm machinery be moved from one tract to another.

Mr. Sims stated that construction of a mile of fence was required after the taking ; the materials therefor would cost $1700.00 and that labor required would cost from $1500.00 to $1700.00. There was evidence from plaintiff to the effect that the land actually taken was worth at least $2425.00. Plaintiff concedes that the total damage it owes is $6500.00. From the evidence it appears that plaintiff allowed less than $600.00 as damages for restricting defendants’ access to K, and for completely severing the two tracts from each other.

At the beginning of the trial plaintiff’s counsel introduced into the record, by stipulation, exhibit A, consisting of fourteen pages of drawings depicting various sections of the right of way of 63 cut off, together with the names of landowners affected by the construction. These sheets indicate that on certain of the tracts affected, where a farm was divided by the construction, plaintiff had constructed cross overs. Defendants’ counsel called this fact to the attention of an engineer witness and sought to show by him that cross overs had been provided on some tracts but none was provided for the Sims land, although similarity situated. Plaintiff objected on the grounds that the situation as to tracts, other than that of defendants’, was not material to this inquiry. The court sustained the objection. After some discussion the court ruled that, since the exhibit was in evidence, anything appearing thereon was also in evidence. Thereupon, defendants withdrew offer of evidence as to crossings appearing on other parts of the right of way. The court announced that the record shows that no evidence had been presented to the jury concerning the other cross overs appearing on exhibit A. Thus the record stood until after the defendants rested. Plaintiff then recalled Mr. Sims for re-direct examination. He was examined as to cross overs located so as to serve other land and if plaintiff did not refuse to put one in for him because of safety reasons. Thereafter, Mr. Sims, on counsel’s examination, testified as to the existence of cross overs on other parts of the right of way. Plaintiff injected that subject into the record. It may not complain of error, if it was error, which it invited. 88 C.J.S. Trial § 116, page 236.

Defendants theory was that damages were suffered because a part of their land was cut off from all access to other parts. This was an important issue, rendered more so because defendants’ access to route K was also greatly limited, in such a manner that access therefrom to the east portion of their farm was inconvenient, expensive and uncertain. Limited access from it to the major portion of the frontage thereon was a damaging factor. This case is unlike the situation presented in State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57. The ruling in that case does not control the case at bar. In this case the court specifically instructed the jury (p. 4) that no damages could be allowed for denial of access to a highway not in existence prior to the taking (as in this case). The court held, in the Clevenger case, that severance of one part of a farm from the other may be a separate damaging factor for the jury to consider. See page 62 of the above mentioned opinion.

Plaintiff contends that the court erred in failing to strike the testimony of witness Skinner on the grounds that he stated that, in his opinion, defendants were damaged to the extent of $10,000.00 because they were denied a crossing over route 63 cut off. That factor was one for consideration by the jury in this case, in arriving at their verdict as to the total damages suffered, or as to the value of the land remaining after the taking. Any evidence tending to establish the difference in value of the land in question before and after the taking is, ordinarily, admissible. This would include evidence tending to show the fair market value of the land remaining after the taking. Certainly, limitation or denial of access to a part or all the remaining land is an element to be considered. State ex rel. N. W. Elec. Power Co-op., Inc. v. Waggoner, 319 S.W.2d (Mo.App.) 930, 934-935. To separately evaluate the various factors is difficult. All evidence of values is based upon the opinion of qualified witnesses. Texas Empire Pipe Line Company v. Stewart, 331 Mo. 525, 55 S.W.2d 283, 285. The point is ruled adversely to plaintiff.

Plaintiff asserts error because the court failed to strike the testimony of defendant Raymond Sims, who stated that a large part of his damage was due to not having an entrance across Highway 63 cut off, but he stated that he could not specify how much of his damage was due thereto. What we have previously said with regard to the fact that limiting or denying access to property affected by the taking may constitute an element of damage in this kind of case, leads to our conclusion that no error was committed in this regard.

Finally, plaintiff urges that the verdict is excessive. It complains that all witnesses on damages for defendants, excepting one, included in their estimates of damages the denial of a crossing over the right of way from one part of the farm to the other. As before stated, their reference to that circumstance was proper because it was one of the circumstances tending to show damages to the remaining land by reason of severance of one part from another.

Defendants’ witnesses, a number of them, gave it as their opinion that the value of the farm prior to the taking was $36,000.00, and that the market value of the remaining property, after the taking, was roughly, one half of its previous value. Defendant Sims testimony was that the value of the land was, prior to the taking, $40,000.00; and he stated that, thereafter, its value was $18,000.00. Three witnesses for plaintiff fixed the damages at much less than $10,-000.00; but the jury could legally arrive at a verdict of $15,000.00 in this case, and such verdict would be well within the limits of the evidence as a whole. In view of this fact we may not hold the verdict to be excessive.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

CROSS, P. J., HOWARD, J., and FRANK W. HAYES, Special Judge, concur.

BLAIR, J., not participating.