author: DOERNER, Commissioner. PER CURIAM:

text:
    Lowell K. WOOD, Plaintiff-Respondent, v. Nancy V. WOOD, Defendant-Appellant.
    No. 31726.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    Rehearing Denied April 29, 1964.

      Charles M. Shaw, Claude Hanks, Clayton, for plaintiff-respondent.
    Milton F. Napier, Claude W. McElwee, St. Louis, for defendant-appellant.
   DOERNER, Commissioner.

This is an appeal from a final order and judgment modifying that part of a decree of divorce regarding the custody and support of the parties’ minor child.

The transcript reveals that the custody of their minor son, Lowell K. Wood, Jr., has been the subject of repeated proceedings between the parties since the original decree of divorce was granted to defendant on January 14, 1959. The view we take of the case makes it unnecessary to dwell at length upon the successive modifications of that decree. It is sufficient to say that by the original decree the custody of the child was awarded to defendant, and certain rights of temporary custody were given to plaintiff. Subsequently, by either contested proceedings, or by stipulations consenting thereto, the original decree with respect to custody and child support was modified by orders made on April 14, 1960; November 3, 1961; and January 11, 1963. The order made on the last mentioned date directed that plaintiff was to have the exclusive and undisturbed custody of the child until the “ * * * middle of the vacation period of 1963 * * * ”; defendant was to have custody from the middle of the 1963 vacation period until the middle of the 1964 vacation period, “ * * and each party to have successive rights of custody alternately thereafter.” It was further ordered therein that plaintiff and defendant were to have temporary custody on alternate weekends, from 9:00 A.M. on Saturday to 6:00 P.M.' on Sunday, “ * * except during summer vacation periods when each party shall have unrestricted and undisturbed custody of said child. * * *»

Matters thus stood until June 7, 1963, when plaintiff filed a motion to modify the decree, in which he alleged that the health, welfare and educational standing of the child had greatly improved during the time the minor was in plaintiff’s custody; that the child desired to remain with plaintiff; that the defendant was emotionally unfit to care for the child; that the environment wherein defendant resided was unsatisfactory and improper for the rearing of a minor child; that the conditions had grown worse since the previous order of court, and that to require plaintiff to surrender custody to defendant would greatly affect the child by seriously impairing his education, welfare, and mental and physical health. The prayer was that plaintiff be granted sole and permanent custody.

On June 20, 1963 defendant filed an application for the disqualification of the judge presiding in Division No. 16 of the court, in which division the motion was pending, on the grounds of bias and prejudice on the part of the judge, which defendant stated she had first ascertained on the preceding day; and defendant requested the court to call in another judge to sit in the case. The application was presented and denied on the same day. Thereafter, on July 2, 1963, defendant filed an answer to plaintiff’s motion to modify wherein she alleged that the matters stated in the motion had been fully adjudicated by the order of January 11, 1963, and were res adjudicata. A trial was held on July 5, and on July 12, 1963, the court entered an order giving plaintiff permanent custody of the child, and providing that defendant was to have temporary custody at certain specified times. Support money was limited to the month during the vacation period when defendant was to have temporary custody. Following an unavailing motion for a new trial, defendant appealed.

The first, and in our opinion the decisive, point raised by defendant is that the court erred in failing and refusing to disqualify himself, and in declining to call in another judge, when so requested by defendant. In support of her argument defendant cites Civil Rule 51.03(b), V.A.M.R. and Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. In that case it was held that a motion to modify a divorce decree is a “civil suit” within the meaning of those words as used in the statute superseded by Civil Rule 51.03; and that a proper and timely application to disqualify should be sustained when filed in such a proceeding. Plaintiff concedes that defendant’s application was timely filed and presented, and that it was in proper form. Plaintiff also recognizes the force of the ruling in Hayes v. Hayes, supra. But he seeks to distinguish the instant case from its determinative effect on the grounds that prior to the modification by consent on January 11, 1963 (presumably when a motion was pending), the defendant had disqualified one judge and the plaintiff another; that the various motions to modify were all part of one continuing proceeding or cause of action; and that by Civil Rule 51.03(a) only one change of venue or disqualification may be granted to either party in any one cause of action. Parenthetically, we note that the limitation in Civil Rule 51.03(a) is to one change of venue. Whether the limitation governs disqualifications provided for in 51.03(b) we need not decide.

The transcript does not show that either party filed an application to disqualify prior to the entry by consent of the order of January 11, 1963. It would make no difference if it did. A motion to modify a decree of divorce is in the nature of an independent proceeding, and the motion is treated as a petition in an original action. North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061; Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. A ciaim upon which relief can be granted must be stated in the motion. Wilton v. Wilton, Mo.App., 235 S.W.2d 418; Olson v. Olson, Mo.App., 184 S.W.2d 768. The movant must not only plead, but prove, such a change of condition that the welfare and best interests of the child will be beneficially affected by a modification. Thomas v. Thomas, Mo.App., 357 S.W.2d 208; McCoy v. Briegel, Mo.App., 305 S.W.2d 29. And the order is such a final judgment that on a succeeding motion matters which happened before the prior motion are res adjudicata. Hawkins v. Thompson, Mo.App., 210 S.W.2d 747; Wilton v. Wilton, supra. Being a final judgment, a motion for a new trial is necessary; otherwise appellate review is limited to the record proper. Hayes v. Hayes, supra; Olson v. Olson, supra. From these attributes of a motion to modify, it is apparent that regardless of the number which may be filed successively, each is a separate and independent proceeding, in no way related to or connected with a prior motion. As a matter of fact, the motion under consideration in Hayes v. Hayes, supra, was not the first motion to modify the original decree, but the second.

It follows that the court erred in overruling the defendant’s application for his disqualification. Accordingly, the judgment should be reversed and the cause remanded for a new trial before another judge, in accordance with the Civil Rules. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly,'judgment is reversed and the cause remanded for a new trial before another judge, in accordance with the Civil Rules.

WOLFE, Acting P. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.


source: Caselaw Access Project

author: DOERNER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Edward WALTON, Plaintiff-Appellant, v. UNITED STATES STEEL CORP., a Corporation, and Ross Redd, Defendants-Respondents.
    No. 31509.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    See also Mo.Sup., 362 S.W.2d 617.
    Hullverson, Richardson & Hullverson, James E. Hullverson, Orville Richardson, St. Louis, for plaintiff-appellant.
    Robertson, Baker & De Voto, Ernest E. Baker,. St. Louis, for defendants-respondent.
   DOERNER, Commissioner.

The only, issue presented by this appeal is one of law. Briefly, it is this: when a prevailing plaintiff is required tp and does remit par;t of a judgnjent, and,a new judgment for. the; reduced amount is entered “as of” the date of the original judgment, is the plaintiff entitled to, interest on, the amount of the new judgment from- the date of the rendition of the original judgment? The trial court held that, the plaintiff was not, and this appeal, followed.

The facts are a matter of record. In chronological order they are as follows: On July 13, 1960, plaintiff instituted this, suit in the Circuit Court of the City of St. Louis against the defendants whereby he sought to recover damages for personal injuries. On April 25, 1961, at the conclusion of a. jury trial, a verdict, for $136,000 was. returned in favor of plaintiff and against both defendants, and a judgment for that amount was entered. On May 6, 1961, defendants filed separate motions for judgment or in the alternative for a new trial, alleging therein (among other grounds) that the verdict was excessive. On July 7, 1961, the court entered an order stating that if within 10 days plaintiff would remit the sum of $46,000 the motions for a new trial would be overruled, otherwise they would be sustained on the ground that the verdict was excessive. On July 12, 1961, plaintiff remitted the sum of $46,000 from the judgment entered on April 25, 1961. The next day, July 13, the court entered the following order:

“ 'Now on this day comes the plaintiff, by attorney, and here in open court, and in writing this day filed, pursuant to the order of Court made and entered herein on the 7th day of July, 1961, remits the sum of $46,000.00, from the verdict and judgment heretofore rendered in his favor reducing said judgment to the sum of $90,000.00 ; thereupon, it is ordered by the Court that the verdict and judgment rendered, herein on the 25th day of April, 1961,. in favor of plaintiff and against both defendants for the sum of $136,000.00, be reduced and a new judgment be entered in favor of the plaintiff and against both defendants for the sum qf $90,000.00, as and of April 25, 1961, the date of the original judgment.
“ ‘Wherefore, it is considered and adjudged by the Court that the plaintiff have and recover of both defendants the sum of $90,000, as and of April 25, 1961, together with the costs of this proceeding, for which let execution issue.
“ ‘It is further ordered by the Court that the separate motions of defendants to set aside verdict and enter judgment in accordance with their motions for a new trial, or in the alternative for a new trial, be and the same are hereby overruled.’ ”

Thereafter the defendant's perfected their appeal to the Supreme Court. By an opinion handed down on November 15, 1962, reported in 362 S.W.2d 617, that court affirmed the judgment.

When the Supreme Court’s mandate reached the Circuit Court on January 4, 1963, a dispute arose between plaintiff and the defendants over the computation of the interest due. Plaintiff contended that he was entitled to the amount of the judgment, $90,000, together with interest thereon from April 25, 1961, the date on which the original judgment was rendered. Defendant conceded that plaintiff was entitled to $90,-000 but maintained that the interest should be allowed thereon from July 13, 1961, the date of the rendition of the reduced judgment. The disputed interest amounted to $1168.41. By agreement, defendants paid plaintiff the amount of the judgment together with the interest thereon from July 13, 1961, and defendant United States Steel Corporation deposited with the clerk of the court its check for $1168.41 payable to plaintiff and his attorneys, to be distributed to plaintiff or returned to that defendant as the court might decide. Based on their respective contentions, each party filed a motion for an order directing the clerk to deliver the check to him. On January 14, 1963, the court ruled in favor of defendant United States Steel Corporation, and plaintiff duly appealed.

The matter of interest due on a judgment is governed by Section 408.040, RSMo 1959, V.A.M.S., which provides in part that “Interest shall be allowed on all money due upon any judgment * * * from the day of rendering the same until satisfaction be made by payment, * * It will be recalled that when plaintiff remitted the sum of $46,000 from the original judgment the court entered a new judgment for $90,000. Defendant maintains that the original judgment rendered on April 25, 1961, was erroneous because excessive, and that there was no valid judgment on which interest could accrue until the new judgment was entered on July 13, 1961. Plaintiff points out that the court entered the new judgment “as and of April 25, 1961,” and argues that the judgment for $90,000 should therefore draw interest from that date. The solution to the problem presented would thus appear to depend upon the determination of the proper date of the rendition of the judgment.

Inherent in the problem is our practice of affirming a judgment on the granting of a remittitur. It is a practice which has long been established in our state as a matter of procedure, Smiley v. St. Louis-San Francisco Ry. Co., 359 Mo. 474, 222 S.W.2d 481, and the history of its development may be found in Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332. The principle upon which the practice is based was defined in Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487, 495, as follows:

“ * * * The principle upon which this practice is based, as shown by these authorities, is that, when there is no substantial evidence to support a verdict for more than a certain maximum amount, the result may be due to error or mistake of the jury and not passion or prejudice. When that is the situation, the Court, in determining the maximum amount authorized by the evidence, does not award or fix the damages but only says that if the jury had given such maximum amount then its verdict could have properly been permitted to stand. It is, therefore, proper to permit the plaintiff to elect between accepting a judgment for such amount, by remitting the excess, or having a new trial. See Kennon v. Gilmer, 131 U.S. 22, 9 S.Ct. 696, 33 L.Ed. 110.”

If the court merely determines the maximum amount of the verdict which may properly be “permitted to stand,” then it would seem to follow that when a plaintiff remits part of the original judgment it should not be necessary to enter a new judgment for the remainder. The amount remitted would appear to be nothing more than a credit on the original judgment. Nevertheless, from the early days of our judicial history it has repeatedly been held that when a remittitur is ordered and accepted a new judgment for the reduced amount must be entered. Schilling v. Speck, 26 Mo. 489; Haynes v. Trenton, 108 Mo. 123, 18 S.W. 1003; Barado-Ghio Real Estate Co. v. Heidbrink, 112 Mo.App. 429, 86 S.W. 1109; State ex rel. Missouri Pacific Ry. Co. v. Broaddus, 212 Mo. 685, 111 S.W. 508. Under those cases the procedure followed by the court in entering the riew judgment for $90,000, after plaintiff remitted $46,000, was not only proper but necessary.

Defendant would be on sound ground if in this case the court had confined its action to that of merely entering a new judgment, after plaintiff remitted. For the date of rendition of that judgment would have been July 13, 1961, and without more, plaintiff would not be entitled to interest for the period prior to that date. Erwin v. Jones, Mo.App., 191 S.W. 1047; Stolze v. St. Louis Transit Co., 122 Mo.App. 458, 99 S.W. 471. The distinguishing feature between those cases and this one, however, is that in the instant case the court expressly ordered that the new judgment was to be retroactive to April 25, 1961, the date of the original judgment. That a court has the power and authority to enter the new judgment as of the date of the original judgment was held in Lasley v. Ridenour, Mo.App., 265 S.W.2d 744, 745, where it was said:

“ * * * The action of the court in making the new entry of judgment as of the date of the verdict for the amount of the verdict, less the amount remitted by the defendant, was not the rendition of a new judgment in the sense urged by the plaintiff, even though in so doing the original judgment was set aside in the process and re-entered as corrected. It was, in effect, a proper correction of the existing judgment to give effect to the amount thereof remitted.”

And further (265 S.W.2d p. 746) :

. “The procedure herein followed is the customary and accepted method of giving credit on a judgment for a remittitur. Meyer v. St. Louis Public Service Co., [241] Mo.App. [1057], 253 S.W.2d 525; Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487. We think the judgment of January 10, as re-entered and corrected by the court April 20, 1953, in order to credit the remittitur, was not void for want of the court’s authority so to do.”

It may well be that the practice of entering the new j'udgment, after remittitur, as of the date of the original judgment flows from the result reached in Erwin v. Jones, supra, and Stolze v. St. Louis Transit Co., supra. Whatever its origin, there can be no doubt that it is the customary and accepted practice, as stated in Lasley v. Ridenour, supra. The reports show that it has long been sanctioned and followed by the Supreme Court. Norris v. St. Louis, I. M. & S. R. Co., 239 Mo. 695, 144 S.W. 783; Erbes v. Union Electric Co., Mo., 353 S.W.2d 659. Presumably in an effort to prevent any dispute as to the date from which interest would accrue the court’s order in Norris read (239 Mo. 723, 144 S.W. 791) :

“Accordingly, it is ordered that the judgment shall be affirmed for the sum of $7500 as of the date of the return of the verdict and the rendition of judgment and to bear interest from that date, if the plaintiff shall within 10 days from this date remit the sum of $2,500 as of the date of the verdict; otherwise, the judgment will be reversed, and the cause remanded for a new trial.”

Currently, however, the form followed is that which was employed in Erbes v. Union Electric Co., Mo., 353 S.W.2d 659, 670:

“ * * * If, within 15 days after the filing of this opinion, plaintiff will enter here a remittitur of $10,000, the judgment will stand affirmed in the sum of $50,000 as of the date of the original judgment. Otherwise, the judgment will be reversed and the cause remanded for a new trial.”

The order made by the trial court in this case is substantially the same as that order. The force and effect of such an order is to make the date of the rendition of the new judgment the same as that of the original judgment. It follows that the plaintiff is entitled to interest from April 25, 1961 on the judgment for $90,000.

For the reasons stated the judgment should be reversed and the cause remanded to the Circuit Court with directions to enter an order directing the clerk of the court to deliver to plaintiff the check for interest held by him. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, j'udgment is reversed and the cause remanded to the Circuit Court with directions to enter an order directing-the clerk of the court to deliver to plaintiff the check for interest held by him.

RUDDY, P. J., WOLFE, J., and FRANK W. HAYES, Special Judge, concur.


text:
    Josephine D. McCREARY, Plaintiff-Respondent, v. EMPLOYERS MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 31501.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.

      Adolph K. Schwartz, St. Louis, for defendant-appellant.
    Gerwitz & Seegers and Gerald L. See-gers, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff brought this suit to recover for the loss of her building, alleged to have been caused by an explosion, which she contended was covered by a policy of insurance issued by defendant. The jury returned a verdict in favor of plaintiff for $5,000 plus interest at 6%. Following the verdict plaintiff remitted the interest, and from the judgment which followed defendant appealed.

Plaintiff owned a lot in University City on which two buildings were located. In one, situated towards the front of'the lot, she conducted a dry cleaning business. The second, with which we are concerned, was built on the back of the lot. It had been rented by plaintiff to a tenant until several days before the casualty involved, when because of the tenant’s failure to pay rent plaintiff had padlocked the doors, but had not actually entered therein. The building was a concrete block structure with a hip roof made of wood, and was known and numbered as 1220-24 North and South Road, rear. It was about 80 feet in length, parallel to the street, and approximately 20 feet in width. There were no windows, and the only doors were two sliding doors on the west wall, facing the street. Heat was furnished by an oil burning ceiling-type furnace, suspended from the rafters by angle irons. The heater was located slightly south of the center of the building, and about two feet from the west wall. The standard fire insurance policy purchased by plaintiff on November 17, 1958, had attached to it an extended coverage endorsement, the pertinent part of which read:

“Provisions Applicable Only to Explosion: Loss by explosion shall include direct loss resulting from the explosion of accumulated gases or unconsumed fuel within the firebox (or combustion chamber) of any fired vessel or within the flues or passages which conduct the gases of combustion therefrom. However, this Company shall not be liable for loss by explosion, rupture or bursting of:
“(a) steam boilers, steam pipes, steam turbines or steam engines ; or
“(b) rotating parts of machinery caused by centrifugal force;
if owned by, leased by or actually operated under the control of the Insured. “The following are not explosions within the intent or meaning of these provisions :
“(a) Concussion unless caused by explosion,
“(b) Electrical arcing,
“(c) Water hammer,
“(d) Rupture or bursting of water pipes.
“Any other explosion clause made a part of this policy is superseded by this endorsement.”

Plaintiff’s theory of her case was that a malfunction of the oil furnace resulted in an explosion of fuel in the fire box or combustion chamber of the heater, which destroyed or damaged the building. Defendant’s theory was that because of the substandard construction of the building an accumulation of snow on the roof caused the roof to sag and fall, and the walls to collapse.

Defendant submitted a motion for a directed verdict at the close of plaintiff’s evidence, and again at the close of all the evidence, and its initial assignment is that the court erred in overruling the latter because there was no substantial evidence that the collapse of the building was caused by an explosion inside the furnace. As we have repeatedly stated (and as appellants so often ignore) the rule is that in determining that question we view the evidence in the light most favorable to plaintiff, according her the benefit of all favorable inferences that may reasonably be drawn therefrom, and that we disregard all of defendant’s evidence except insofar as it may aid the plaintiff. Christie v. Gas Service Co., Mo., 347 S.W.2d 135; Painter v. Knaus Truck Lines, Mo., 375 S.W.2d 19.

The casualty occurred at some undetermined time between 11:00 P.M. on the night of Wednesday, March 9, 1960, and about 7:00 A.M. on Thursday, March 10, 1960. Plaintiff produced no eyewitnesses. The first person known to have arrived on the scene was Robert Schutte, a University City police officer, who received a message on his car radio that a building at the foregoing address had suddenly collapsed. When he arrived he found that “* * * the walls were blown outward,” the roof had fallen in towards the center, and the furnace was on the outside of the building. Its door was off and was some distance away. Other witnesses for the plaintiff confirmed that the furnace was outside of the building and that the door was off and lying some distance away. Plaintiff’s witnesses variously described the condition of the furnace as banged up, twisted, distorted, and bulged out, and as being blackened and smeared with soot and smoke. They also related that the rafters to which the furnace had been attached were soaked with oil, charred and smoke damaged, indicating that a large explosion had occurred and blown oil out of the furnace. As evidence that an explosion had occurred in the furnace it was pointed out that the west wall, near which the heater had been situated, was practically leveled, whereas the other three walls were not as severely damaged; .that the position of the rafters and the nearest door-indicated an outward and westward exertion of a force from within the building; and that a metal storage cabinet which had been located within the building was found on the outside, up on a hill and 20 feet away.

Expert witnesses testified that in normal operation, when the temperature in the building fell below the point at which the thermostat was set an electrical impulse to a relay activated the burner so that oil and air, under pressure, was forced into the combustion chamber; and that the resulting vaporized or atomized oil was. ignited by means of a spark which arced between a positive and a negative electrode. Plaintiff’s experts noted that soot and-debris had accumulated in the firebox, and that the electrodes were covered with carbon which would delay the ignition of the fuel. It was their opinion as experts that the defective condition of the furnace caused it to malfunction in that the spark did not immediately ignite the oil and air that was being forced into the firebox; that an unusual amount of vapor accumulated therein; and that when the arc ultimately occurred it resulted in an explosion of sufficient force to destroy or damage the building. . While an inference may be drawn that one or two of plaintiff’s three experts were of the opinion that a secondary explosion may have occurred from vapor which had seeped out of. the firebox, all three agreed that the initial explosion took place within the combustion chamber of the furnace. That fact was copper-riveted when Swinford, one of the experts was asked on cross-examination: “Q. But where with regard to this heater was the explosion? Was it inside the heater or outside or just where was it. A. Your explosion was in the heater itself but as it explodes that is what makes — your burner, I mean your furnace, of that type has what they call a door on it that lets loose whenever it does to let the intense explosion out. And whenever that happens, it puts the explosion over to the other parts of the building.” In view of the circumstantial evidence produced as well as the opinions of plaintiff’s expert witnesses we believe there was an abundance of evidence to make a submissible case for the jury. The point is ruled against defendant.

The policy contained a “standard” or “union” mortgage clause, as distinguished from an “open” mortgage clause (see Swihart v. Missouri Farmers Mut. T., C. & W. Ins. Co., 234 Mo.App. 998, 138 S.W.2d 9) on behalf “Thomas Stephens, First National Bank in St. Louis * * Defendant claims that the mortgagee was an indispensable party. The alleged nonjoinder of the mortgagee, if such was necessary (see Swihart, supra) was first raised in defendant’s motion for a directed verdict. Having failed to raise it by motion or answer before proceeding to trial it was waived by defendant. Civil Rule 52.06; Wilson & Co. v. Hartford Fire Ins. Co., 300 Mo. 1, 254 S.W. 266; Bartlett v. De Graffenreid, Mo.App., 305 S.W.2d 906.

In Instruction No. 1, her verdict directing instruction, plaintiff hypothesized the occurrence of an explosion within 'the firebox or combustion chamber of. the furnace. Defendant again argues that the' evidence did not support plaintiff’s theory, and that the court therefore erred in giving the ■instruction. What we have heretofore said regarding the sufficiency of plaintiff’s evidence to make a submissible case is equally applicable to this point.

Defendant’s concluding assignment is a five-pronged attack on Instruction No. 7, plaintiff’s instruction on damages. By way of background it should be stated that plaintiff alleged in her petition that her building had been “ * * * destroyed by an explosion resulting in a complete loss thereof”, and she prayed for a judgment for $6800, the full amount of the coverage. Presumably she tried her case on the theory that She had sustained a “total loss” within the meaning of those words as applied to insurance (i. e., when a building has lost its identity or character as such, though a wall or other parts thereof may remain, O’Keefe v. Liverpool, L. & G. Ins. Co., 140 Mo. 558, 41 S.W. 922, 39 L.R.A. 819), for her evidence tended to establish that fact. Thus plaintiff testified - that the building was worth $8,000 or $8,500 at the time she purchased the insurance, on November 17, 1958; that the only salvage realized was $25 for the furnace; and that it cost her money to have the material and rubble hauled away. Plaintiff further testified that She had overheard a telephone call made by one Bollier, an adjuster sent to the scene by defendant on March 10, in which Bollier advised defendant that * * this is quite an explosion, it’s a complete loss.’ ” Also, plaintiff’s witness Loomstein, a building contractor, was asked to give his opinion of what it would cost to rebuild the same kind of structure “ * * * assuming further that you are going to rebuild that building using the same concrete floor and the same foundation but you- are going to rebuild everything else in it * * His answer was that it would cost between $S,000 and $9,000. On cross-examination ■Loomstein stated that in giving those figures •he had not excluded the foundation and concrete floor, and that those items would cost approximately $600 and $960 respectively, a total of about $1560. Defendant introduced no evidence of its own regarding the value of the building, nor any evidence as to the cost of repairs or replacement. The plaintiff introduced in evidence the policy sued on, which contained a co-insurance clause. By that provision plaintiff agreed, in consideration of a lower premium, to maintain at all times contributing insurance of 80% of the actual cash value of the buiding at the time of the loss “ * * * and that failing to do so, the Insured shall to the extent of such deficit bear his, her or their proportion of any loss.” The insuring clause of the policy provided that the defendant insured plaintiff “ * * * to the extent of the actual cash value of the property at the time of loss, blit not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss * * Plaintiff also introduced in evidence a brochure prepared by defendant prior to the time the policy was purchased, in which it was stated that “After a survey of your property it is our opinion that your insurance program be set up on the basis of a minimum value of * * * $13,000 for Rear 1220 North and South Road. These figures are not represented as an appraisal and may not be the present value of your property. We recommend an appraisal be obtained from a qualified independent appraisal company.”

In this state of the record plaintiff offered and the court gave Instruction No. 7, her instruction on damages. By that instruction the jury was told that if it found for the plaintiff under Instruction No. 1 it should render a verdict in such an amount as it found from the evidence was the amount of damage plaintiff’s building suffered as a direct result of’ the “occurrence” mentioned in the evidence, but not to exceed $6800; but if it found that the building was totally destroyed then “ * * * your verdict must be in the amount of $6,800.00 * . * Thus plaintiff submitted the issue of damages on alternate theories of a partial loss and a total loss. As stated, defendant attacks the foregoing instruction on five grounds. The first is that by the use of the word “occurrence” instead of that of “explosion” the jury was given a roving commission to award damages to plaintiff regardless of what caused the loss. But the instruction was predicated on and referred.to Instruction No. 1, which required the jury- to find that the building was damaged as the result of an explosion within the firebox or combustion chamber of the furnace. Furthermore, on defendant’s behalf the court gave Instruction No. 2,, by which the -jury was told that.if it found that the damage to’ plaintiff’s property was not caused-.by -an explosion as defined, in Instruction No. 1 then plaintiff was not entitled to recover , and its ver.dict - must be in favor of -defendant.. When- all of the instructions are considered together, as they must ,be, we do not believe that the jury could have-been-misled or confused by the word occurrence; particularly when the divergent theories of the parties regarding the cause of the collapse of the building were, so sharply drawn and, developed by their conflicting evidence.

Defendant’s second and third complaints regarding Instruction No. 7 may be considered together. . Defendant points to. that part of the instruction which told the jury that if it found that the building was. totally destroyed its verdict “must” be for $6,800, and criticizes, first, the mandatory form of. the direction; and second, the failure to give defendant the benefit of depreciation. There was no evidence offered by plaintiff as to depreciation, (or by defendant) as there was in La Font v. Home Ins. Co., 193 Mo.App. 543, 182 S.W. 1029, cited by defendant. In, any event, the irrefutable answer to both of defendant’s, complaints is that whatever their merit, they are purely academic. As defendant concedes in its brief, the jury obviously found that the loss was partial, not total, for despite the mandatory nature of that part of the instruction it returned a verdict for only $5,000. If that part was erroneous the error was harmless, and defendant was not prejudiced.

Defendant’s fourth and fifth claims of error may likewise be considered together. The former is that, as to a partial loss, the instruction, should have incorporated the difference between the before and after values as the measure of damages. The latter is that the instruction ignores the 80% c.o-insurance clause contained in the contract. It must be conceded that there is some merit to defendant’s criticism of this part of. the instruction. It is true that the general, rule as to the measure of damages to realty is the difference in value before, ,and after the injury. Brown v. Pennsylvania. Fire Ins. Co., Mo.App., 263 S.W.2d 893, although for a possible corollary to that rule,, where the cost of restoration is less than such difference, see Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158; and Beaty v. N. W. Electric Power Cooperative, Inc., Mo.App., 296 S.W.2d 921. Further, the instruction by appropriate language should have required the jury to find that the plaintiff had insured the property up to-at least 80% of its value. But there is an “ * * * ‘abundant authority in this state to the effect that where the damages awards ed are not excessive and fairly represent the damages shown by the evidence, an-erroneous or inaccurate instruction upon: the measure of damages will not (necessarily) constitute reversible error.’ * * * La Plant v. E. I. Du Pont De Nemours & Co., Mo.App., 346 S.W.2d 231, quoting from Blydenburgh v. Amelung, Mo.App., 309 S.W.2d 150. And to the same effect, see Mercer v. Millers’ Mut. Fire Ins. Ass’n,. Mo., 249 S.W.2d 402. The hotly contested issue in the case was the nature and origin of the force which caused the building to collapse. Practically all of the evidence was devoted to that issue. Once that question was resolved the only remaining issue was the amount of plaintiff’s recovery. The defendant concedes in its brief that there was some damage. Having contended that the building collapsed from its faulty construction and the weight of the snow defendant could hardly do otherwise. Mercer v. Millers’ Mut. Fire Ins. Ass’n, supra. Defendant made no contention, here or in the trial court, that the verdict was excessive. La Plant v. E. I. Du Pont De Nemours & Co., supra. Plaintiff’s uncontro-verted evidence showed that the building had a value of $8,000 or $8,500 before the injury, and little, if any, value thereafter. At a valuation of $8,500 the $6,800 policy purchased from defendant satisfied the coinsurance clause. Defendant points to the brochure in which it mentioned a figure of $13,000, but it ignores its own statement therein that that figure was not represented as the appraised value of the building. While Instruction No. 7 may have been technically inaccurate it obviously “ * * did not cause the jury to apply an improper rule in arriving at the amount of the damages. * * * ” and upon the whole record “ * * * there was no error committed by the trial court against the appellant materially affecting the merits of the action. * * * ” Mercer v. Millers’ Mut. Fire Ins. Ass’n, 249 S.W.2d 407, unless such an error is shown we may not reverse a judgment. Civil Rule 83.13(b). Flanigan v. City of Springfield, Mo., 360 S.W.2d 700; Mercer v. Millers’ Mut. Fire Ins. Ass’n, supra.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

WOLFE, (Acting) P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.


text:
    INSURANCE, INC., a Corporation and John B. Meehan, d/b/a John B. Meehan & Co., Plaintiffs-Appellants, v. James L. SANDERS, Defendant-Respondent.
    No. 31399.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 18, 1964.

      Robert Nagel Jones, Gentry, Bryant & Sheppard, Arnot L. Sheppard, James Cor-coran, St. Louis, for plaintiffs-appellants.
    Andrew P. Deschu, Joseph W. Toenisko-etter, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is an action at law brought by the joint operators of an insurance agency to recover from their former employee an alleged indebtedness of $3,'438.12. At the close of plaintiffs’ evidence the court sustained defendant’s motion for a directed verdict and entered a judgment for defendant. From that judgment plaintiffs appealed.

In their petition plaintiffs pleaded that they and the defendant had entered into a written contract on or about September .1, 1957, which was set forth in verbatim. In •brief, the agreement provided that defendant was to enter plaintiffs’ employ as an insurance salesman; that defendant was to be paid “ * * * on the basis of 50% of the gross commissions, on new and renewal business produced by Second Party (defendant)”; that commencing immediately plaintiffs would advance to defendant $250 per ’ month “ * * * which shall be charged to and applied against whatever commission earnings Second Party shall accomplish * * * ”; ■ that plaintiffs would purchase a policy of insurance' on the life of defendant, in which initially it was to be named beneficiary, and would advance the premium for the same, which was likewise “ * * * to be charged to and applied against Second Party’s commission earnings * * * ”; and that defendant was to produce a minimum of $2,000 in earned commissions annually, “ * * * otherwise First Party (plaintiffs) shall have' the option of declaring a breach and electing to terminate this agreement.” There was no other provision regarding the duration or termination of the contract, except that in the last paragraph it was stated: “It is understood and agreed by the parties hereto that a permanent, lasting arrangement between the parties is' desired and contemplated; * * Plaintiffs further alleged that defendant had breached the terms of the agreement in that (1) he had attempted to file his license with another broker; (2) he had attempted to compete with the insurance business of the plaintiffs ; (3) he had failed to produce the minimum annual commissions of $2,000; and (4) defendant did not promote the sales operations of the plaintiffs’ business. It was then averred that “In account between the parties, there are the following debits and credits” and the plaintiffs then set forth an ■account which showed that plaintiffs had advanced $4,612.73 for the monthly advances and insurance premium; that it had credited defendant with $1,174.61 for commissions earned and certain other credits; and that the balance was $3,438.12. Despite the latter figure, the prayer was for a judgment for $4,205.09, together with interest. Defendant admitted the execution of the contract but denied all other averments.

Plaintiffs produced evidence to sustain the execution of the contract .by the parties, and the various items of the account set forth in their petition. Their witness Mee-han testified that during the last, several months preceding December, 1958, defendant didn’t appear regularly at plaintiffs’ office, and that after December 1 defendant failed to show up at all.

Plaintiffs appear to have pleaded one theory of their right of recovery in their petition, and to be now relying on an entirely different theory in their brief. As we have stated, they alleged that defendant had breached the contract in the four particulars we have enumerated. They introduced- no evidence that the defendant had attempted to file his' license with another broker, or that defendant had attempted to compete with the insurance business of plaintiffs. Their evidence did show that defendant had failed to produce the minimum annual earned commissions of $2,000, but the only right of relief given to plaintiffs by the contract for such a failure on the part of defendant was the right to terminate the agreement. As to the fourth breach alleged, that defendant did not promote the sales operation of the plaintiffs’ business, the only evidence introduced was that during the several months preceding December 1, 1958, defendant failed to appear in plaintiffs’ office regularly. There was nothing in the contract which required defendant to appear in plaintiffs’ office at any given time — or, for that matter, at all. Nor was there any evidence that plaintiffs had directed defendant to appear, or that they had complained to him about his lack of appearance. Further, defendant’s irregular appearance would not justify an inference that defendant was failing to make a diligent and faithful effort to solicit and sell insurance. Defendant was employed to-sell insurance and he may well have preferred to use his time to call on prospects towards that end instead of devoting it to lolling around in plaintiffs’ office. So far as the breaches of contract alleged in the petition were concerned they were totally unsupported by any evidence, and as to such aver-ments the court’s action in sustaining defendant’s motion for a directed verdict was therefore right and proper.

However, plaintiffs did plead that they had advanced to or for defendant the sum of $4,612.73, and that the earned commissions and other credits to which defendant was entitled was only $1,174.61, so that the excess of advances- over commissions was $3,438.12. While totally unrelated to any of the four breaches alleged, it may be gleaned from the petition that plaintiffs are seeking to recover that sum from defendant. In their brief plaintiffs appear to recognize, at least tacitly, the general rule we followed in a somewhat similar case, Hamilton Fire Ins. Co. v. A. J. Cervantes, Mo.App., 278 S.W.2d 20, 25, where we said: “ * * * When the contract contains no agreement, express or implied, on the subject of repayment, the great 'weight of authority supports the view that where advances are to be charged to and deducted from the commissions agreed to be paid to the agent as they accrue the principal cannot recover from the agent the excess of advances over commissions earned, and the principal is limited to the commissions actually earned for recoupment of the excess. * * * ” And see Labatt’s Master & Servant, 2nd Ed., Vol. 2, Sec. 461, pp. 1358, 1359; 165 A.L.R. 1367; 57 A.L.R. 33; 44 C.J.S. Insurance § 157, p. 832; Richmond Dry Goods Co. v. Wilson, 105 W.Va. 221, 141 S.E. 876, 57 A.L.R. 31; Larson v. Watzke, 218 Wis. 59, 259 N.W. 712; Hibbs-Kiefer Hat Co. v. Schneiderhan, 236 Ky. 470, 33 S.W.2d 304. The contract in the instant case expressly provided that the advances to be made by plaintiffs were to be charged to and applied against whatever commission earnings defendant produced. There is no reference anywhere therein to any personal liability on the part of defendant. Thus by the very terms of the contract the right of plaintiffs to recover advances was limited to the specified fund which was to be realized in a particular way. As we pointed out in Hamilton, under the rulé expressio unius est exclusio alterius such an express provision excludes any possible interpretation that the employee was obligated to pay the employer otherwise than out of earned commissions.

Plaintiffs seek to avoid the force of the foregoing general rule on two theories. The first is that' the parties construed the contract as' creating a personal liability for the excess on the part of de‘r fendant. The basis for this argument is the testimony of pláintiffs’ bookkeeper that each month up to August 31, 1958, she had deducted from the $250 advanced to defendant a sum sufficient to cover Federal income, Social Security/ and City of Sf. Louis earnings taxes; that the plaintiffs’ auditor advised her that such deductions should have been made only on the commissions earned; that instead of the total of $278.24 deducted only $20.88 should have been withheld; that defendant’s account was credited with the difference, $257.36; and that defendant was then asked to and did sign the following statement dated November 20, 1958: “Since Overpayment of Withholding & Social Security Taxes was withheld from my paycheck from January 1 to August 31, 1958 I will not claim credit at the end of the 1958 Year. The adjustment was made against my Drawing Account.” We can not agree with plaintiffs’ argument that the statement amounts to a construction of the contract interpreting the advances as loans, rather than income; nor with its contention that as loans, defendant was under a personal obligation to repay them. All that the statement amounted to was an effort on the part of plaintiffs to rectify what its auditor advised had been a mistake on its part. There is no promise therein on the part of defendant that he will repay advances other than out of commissions earned. The rule advanced by plaintiffs, that the construction put upon a contract by the parties thereto may be considered as an aid to the court in determining its meaning is applicable only when the contract is ambiguous. It is so stated in Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 852, cited by plaintiffs. The same case also holds that if the terms of a contract are clear and unambiguous, as is true in the instant case, the contract will be enforced or given effect in accordance with its terms, and without resort to construction to determine the intention of the parties; and (342 S.W.2d p. 851) “* * * In such case the construction of the parties, if at variance with the written terms, will not be followed * *

Plaintiffs’ second theory is that the foregoing general rule is not applicable when the employee violates or abandons his contract. Plaintiffs cite Johnson v. Quayle & Son Corp., 236 App.Div. 351, 257 N.Y.S. 874, 876, in which the court, after citing the general rule, stated, “ * * The rule is different, however, when during the time the drawing account was operative the employee has been guilty of such a breach of the agreement as to disqualify him from earning the advances. In such a case there is an implied duty to repay such advances * * (Emphasis supplied.) It was this failure to enhance the fund, during the period of employment, to which we referred in Hamilton Fire Ins. Co. v. A. J. Cervantes, Mo.App., 278 S.W.2d 20, 24. As was true in the case we cited, Hibbs-Kiefer Hat Co., 236 Ky. 470, 33 S.W.2d 304, and as we have heretofore shown is true in the instant case, plaintiffs produced no evidence showing that during the time defendant was receiving the advances he failed to exercise his best efforts to sell insurance and thereby increase the earned commission fund. As to abandonment of the contract, in the case cited by plaintiffs on that feature, Kupfer v. Holtz-mann, Sup., 88 N.Y.S. 362, the contract of employment was for a fixed period of time. In the instant case the contract did not contain any provision as to its duration nor any terms obligating the defendant to remain in plaintiffs’ employ for a definite period of time. All that it contained was an expression that a “ * * * permanent, lasting arrangement between the parties is desired and contemplated * * Such language does not indicate that the defendant was bound to work for plaintiffs for the rest of his life, but only at will. Minter v. Tottle-Campbell Dry Goods Co., 187 Mo.App. 16, 173 S.W. 4. A contract will be held to be one for life only where the intention that it is to be for life is expressed in clear and unequivocal terms. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 270.

Plaintiffs’ final complaint is that the judgment is void because it is not based on a verdict by the jury. As proof that no verdict was returned by the jury plaintiffs point to that part of the judgment in which it is recited that, * * * at the close of all the evidence, defendant’s motion for a directed verdict filed and submitted herein having been duly and fully considered is now by the Court hereby sustained. Thereupon the Court finds in favor of defendant, and against the Plaintiff on plaintiff’s cause of action.” The remainder of the judgment is in conventional form. Plaintiffs point out that the foregoing recital indicates that no verdict was rendered by the jury. If that be the fact it is difficult to understand why, throughout their motion for a new trial, plaintiffs repeatedly referred to “the verdict” and to the court’s supposed error in “directing a verdict * * What is even more important, we note that the plaintiffs did not object to the failure of the court to have the jury return a verdict, and that nowhere in their motion for a new trial did the plaintiffs complain of the supposed error which they now seek to raise on appeal. It would therefore appear doubtful whether the point is before us for review. Civil Rule 83.13 (a), V.A.M.R., In re Alexander’s Estate, Mo., 360 S.W.2d 92. In any event, we may not reverse a judgment unless the error committed materially affected the merits of the action. Civil Rule 83.13(b). While it has been said that a verdict is the sole basis of the judgment to be entered in a jury case, Thorne v. Thorne, Mo., 350 S.W.2d 754, it will be noted that in those cases in which the rule is stated the jury was performing its normal function of determining contested issues of fact. But the determination of whether the plaintiffs’ evidence is sufficient to make a submissible case for the jury upon a motion for a directed verdict is a judicial function, and if the evidence is insufficient there is nothing for the jury to decide. Nash v. Normandy State Bank, Mo., 201 S.W.2d 299. And while the court should direct the jury to return a verdict in favor of the defendant, under those circumstances “ * * * the jury does not exercise any measure of discretion, but acts only formally, perfunctorily, and ministerially as the instrument by which the court prepares the orderly record which will support the only judgment that can lawfully be rendered in the case. * * * ” State ex rel. Witte Hardware Co. v. McElhinney, 231 Mo.App. 860, 100 S.W.2d 36, 38. In such a case, though the act of returning a directed verdict purports to be that of the jury, it is in legal effect the act of the court itself. So much so that if the jury refuses to follow the court’s instructions and return a verdict for the defendant as directed by the court, the court may discharge the jury and cause judgment to be entered up in defendant’s favor without the formality of a directed verdict. State ex rel. Witte Hardware Co. v. McElhinney, supra. It follows that while the court in the instant case should have formally directed the jury to return a verdict in favor of defendant, its failure to do so did not materially affect the merits of the action and is not prejudicial or reversible error.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

WOLFE,'Acting P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.


author: FRANK W. HAYES, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Appellant, v. G. A. BROCKFELD et al., (Defendants) Respondents.
    No. 31531.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 19, 1964.

      Robert L. Hyder and Bruce A. Ring, Missouri State Highway Dept., Jefferson City, for appellant.
    Alvin Juergensmeyer, Warrenton, Thomas W. Wehrle, and Walter Wehrle and Wehrle & Wehrle, Clayton, Wm. L. Hun-gate and Hungate & Grewach, Troy, for respondents George F. Mohr and Genevieve B. Mohr.
   FRANK W. HAYES, Special Judge.

The respondents, George F. Mohr and Genevieve Mohr, filed a motion in this court to dismiss the appeal of the appellant for its failure to comply with Supreme Court Rule 83.05, V.A.M.R., requiring that “[t]he points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong” in the rulings. The motion was submitted with the appeal. After reviewing the record, ■the court is of the opinion that there ■ is sufficient compliance with the Rule to require, in the interest of justice, the retention of the appeal. Respondents’ motion to dismiss the appeal is, therefore, overruled.

This is condemnation proceedings Brought by the State of Missouri at the relation of the State Highway Commission of Missouri to acquire the right of way for the construction and' maintenance of Interstate Route 70 in Warren County, Missouri. The action was instituted on May 10, 1962. Thereafter, commissioners were duly appointed and on June 21, 1962, they filed their report awarding the respondents the sum of $15,000.00. Timely exceptions were filed by appellant and respondents George F. Mohr and Genevieve B. Mohr and upon a trial of the exceptions, the jury on October 30, 1962, returned its verdict in favor of respondents in the sum of $7000.00, and from the judgment entered thereon the appellant appeals.

The respondents Mohr owned a tract of land abutting the south side of existing Route 40 in Warren County, Missouri, about half way between Warrenton and Wright City. The tract had a frontage along Route 40 of approximately 313 feet, a depth along its east line of approximately 284 feet, and along its west line of approximately 200 feet with a width across the back of 300 feet. The tract of land was improved with a gasoline service station leased from respondents Mohr by the respondent Sinclair Refining ■ Company, a corporation, and by it leased to respondents Sands. There were two (2) commercial type entrances from the property to Route 40, one at the east end and one at the west end of said property.

At this location Route 40 as it then existed was a dual lane highway with two 'concrete pavements. It ran in a generally east and west direction. The • north lane was 18 feet in width and carried two lanes of traffic westwardly. The south lane, upon which’ the Mohr property abutted, was 24 feet in width, and carried two lanes of traffic eastwardly. Approximately opposite the western entrance from said property to Route 40 was a cross-over connecting the two pavements of Route 40 so that traffic on the west-bound lane could turn onto the east-bound lane by using the crossover, and vice versa. There is a county road running north and south located approximately 271 feet east of respondents’ Mohr east property line.

In constructing Interstate 70 Highway, the appellant is appropriating a small tract of land, consisting of 0.05 acre. There are no improvements located on this small tract. The reconstruction of Interstate 70 will involve the construction of a new westbound lane and resurfacing of the eastbound lane and the -construction of two outer roadways,, one being located on each side of the through lanes of Interstate 70. Both outer roadways will carry traffic in both directions while the north Interstate 70 pavement will carry traffic only in a western direction and the south Interstate 70 pavement will carry traffic only in an easterly direction. Both outer- roadways will lead to interchanges at Warren-ton and Wright City, Missouri, each, being about three (3) miles ■ from property in question. The respondents have free access to the south outer roadway which leads to Warrenton and Wright City, Missouri. At each interchange traffic on outer roadways can enter onto- Interstate 70 and traffic from that highway can enter onto the outer roadways. The county road east of the Mohr property will be carried up and over Interstate 70 and there will be no interchange at the point where the county road crosses Interstate 70.

Before the improvements described herein, respondents Mohr had direct access from their property to existing Route 40 in two (2) places, one at the west end and the other at the east end of their property. By the new construction, this direct access to Route 40 is destroyed becausé of the construction of the outer roadway between the south lane of Route 40 and the property of respondents Mohr. While respondents Mohr had access to the outer roadway, they could not go across the outer roadway and enter what was old Route 40. But said respondents could, by-traveling the outer roadway, finally have access to old Route 40. The sole question presented here is whether respondents Mohr had a property right in the easement of direct egress and ingress on pre-exist-ing Route 40 which, when taken in condemnation, entitles them to compensatory damages. The trial court ruled that such loss of access to existing Route 40 was an element of damage to be considered by the jury in assessing said respondents’ damages. Did the trial court err in so ruling? The answer to that question will rule the various assignments of error made by the appellant.

The appellant assigns as error the refusal to give its offered Instruction No. 6, which reads as follows:

“The Court instructs the jury that if you find from the evidence in this case that after the appropriation of a part of defendants’ property and the reconstruction of Route 70, the defendants will have an unlimited right of access to an outer roadway of Route 70, then you shall not award to the defendants, nor allow to them any amount of money because of the fact that there is no direct access between defendants’ remaining property and the through ways of Route 70.”

It also assigns as error the giving of Respondents’ Mohr Instruction No. 3, which reads as follows:

“The Court instructs the jury that in determining just compensation to be paid to the defendants for the appropriation of their property by the plaintiff, as described in the evidence, you may take into consideration the damages, if any, resulting to the remainder of defendants’ whole tract of land by reason of the taking of defendants’ rights of access to U. S. Highway 40, existing on June 21, 1962, and by the construction of the limited access highway as described in evidence.”

There was evidence in the record to support the giving of Instruction No. 3, above, because witnesses for respondents Mohr testified that the loss of access to existing Route 40 caused by the new construction was an element of damage considered by each of them in fixing said respondents’ damages. Appellant objected to this line of testimony, sometimes belatedly, all of which were overruled, and made motions to strike, sometimes untimely, all of which were overruled. Whether the trial court erred in admitting such testimony will be determined by the answer to the main question involved herein.

Here we are concerned with two classes of highways, the “limited access highway” and the “land service road.” The “limited access highway” is of comparatively recent origin in Missouri, being first authorized in our 1945 Constitution, Article IV, Section 29, V.A.M.S. Like its name signifies, there is no direct access to the throughway except at certain well spaced entrances and exits connecting outer roadways and intersecting highways. The usual direct access is allowed between the outer roadways and abutting property but no abutting owner shall have the right of direct access to said highway or its right of way. Directly means in a direct manner and without anything intervening. The very term, limited-access highway, conveys the idea that ingress and egress to the main traveled portion of the throughway has been circumscribed and restricted. Even if an outer roadway and ramp are close at hand, their course and place of entrance may be roundabout and burdensome to abutting property owner. As in the case at bar, the respondent had a choice of going three miles east to the interchange at Wright City or three miles west to the interchange at Warrenton before entering old 40.

The previously existing U. S. 40 was a “land service road,” which is the term used to describe the ordinary highway which is intended primarily to enable abutting landowners to have access to the outside world as distinguished from the “limited access road,” which is a “traffic-service road” designed primarily to move through traffic. 43 A.L.R.2d 1074. In the instant case, U. S. 40 had been used as a “land service road” for many years and the respondents had an easement of access, that is egress and ingress, from their service station property to said highway for many years. In the construction of Interstate 70, a “limited access highway,” the appellants sought to appropriate a portion of respondents’ real estate and to cut off and extinguish respondents’ right of easement to U. S. 40. As we understand the record, respondents are not claiming damages because they will not have direct access to Interstate 70 when completed. They do not claim they have any such right of access. Nor do they deny that the appellant has the right, in a proper proceedings, to destroy or impair their right of access to existing Highway 40. But they do contend that they had an easement of access to pre-existing U. S. 40 and that it was a property right which could not be taken from them by condemnation without just compensation.

The abutting owners of land have an easement of access, that is, egress and ingress, from their property to the existing highway, which constitutes a property right, an interest in land which cannot be taken by condemnation without compensation. State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534; Christy v. Chicago, B. & Q. Railroad Company, 240 Mo.App. 632, 212 S.W.2d 476; Filger v. State Highway Commission, Mo.App., 355 S.W.2d 425, 431; State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo., 366 S.W.2d 329, 335; State ex rel. State Highway Commission v. Green, Mo., 305 S.W.2d 688, 691; Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259; McMoran v. State, 55 Wash.2d 37, 345 P.2d 598; Mueller v. New Jersey Highway Authority, 59 N.J.Super. 583, 158 A.2d 343; State ex rel. Ashworth v. State Road Commission, 128 S.E.2d 471 (W.Va.) ; Mississippi State Highway Comm. v. Finch, 237 Miss. 314, 114 So.2d 673; State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783; In re Appropriation of Easement for Highway Purposes, 93 Ohio App. 179, 112 N.E.2d 411; 43 A.L.R.2d 1072, 1074; A.L.R. (2) Supp. 1962, p. 952.

That the above statement of law is supported by the great weight of authority is recognized by our Supreme Court in State ex rel. State Highway Comm. v. Vorhof-Duenke Company, supra, where Judge Storckman, speaking for the court, says, l. c. 335 of 366 S.W.2d:

“Limiting access to public highways is of comparatively recent origin. The power to do so first appeared in our 1945 Constitution. ‘Abutting owner’s right to damages or other relief for loss of access because of limited-access highway or street’ is the subject of an annotation in 43 A.L.R.2d 1072, and this statement supported by the great weight of authority appears at page 1074, § 3: ‘Where an established “land service road,” in which the normal right of access had already come into being, is converted into a limited-access way in such a manner that the existing rights of access are destroyed, the owners of such rights are entitled to compensation, exactly as they would be if such rights were destroyed by any other type of construction’. For later cases on the subject of this annotation, see A.L.R.2d Supplement Service, 1960 Issue, p. 2954, supplementing the annotations in A.L.R.2d Volumes 20-68; and A.L.R.2d Supplement Service 1962 Issue, p. 952, covering A.L.R. 2d Volumes 1-80. In accord is the Missouri case of State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534, 537 [7, 8]. In addition to Mr. Wilkie Cunnying-ham’s dissertation, supra, there are articles in 27 Washington Law Review, p. Ill, and 3 Stanford Law Review, p. 298, on the subject of limiting access to and egress from public highways.”

But appellant contends that abutter’s right of access on pre-existing highway does not include the right to have the highway forever maintained past his property in the manner in which it was originally constructed and cites some Missouri cases. An examination of these cases discloses that the factual situation is different from that in the instant case. In Filger v. State Highway Commission, Mo.App., 355 S.W.2d 425 (K.C.App.), the Highway Commission constructed islands on its own right of way which diminished abutting owner’s direct access from 163 feet to 47j4 feet which did not materially block entrance or exit and the court held abutting owner was not entitled to damages. In Hill-Behan Lumber Company v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, the Commission changed the grade within confines of the right of way to inconvenience of abutting owner and the court held, absence statute, no damages were authorized. In Handlan-Buck Company v. State Highway Commission, Mo., 315 S.W.2d 219, it was held that where owner’s property was not located adjacent to street which was being converted into limited-access highway, owners had no easement of access. In Christy v. Chicago, B. & Q. Railroad Company, 240 Mo.App. 632, 212 S.W.2d 476, the plaintiff’s land did not abut upon that part of street involved. In none of the above or other cases cited by appellant was land actually taken from abutting owners’ tract by condemnation and his right of access also destroyed. We do not consider above cases controlling here. The respondents herein do not deny that appellant has the right to change the highway from its original construction. They simply contend that when appellant, in changing the highway by condemnation, appropriates some of their land and destroys and impairs their right of access on existing U. S. Highway 40, that they are entitled to compensation therefor.

• Appellant also contends that, even though respondents had an easement of access from and to their property on existing Old 40 Highway and such access was destroyed by construction of Interstate 70, respondents cannot recover damages herein for loss of access because of the construction of an outer road, to which they have access, which will lead them to the interstate system. The outer road referred to gives respondents a choice of going east three miles to Wright City interchange, or going west three miles to Warrenton interchange. But regardless of where the outer road leads, it does not change the fact that prior to the new construction the respondents had an easement of access, which was a property right, to then existing Old 40 Highway. This right of access was destroyed before the construction of the outer road. That right is gone forever. The construction of the outer road did not restore the property right of access to Old 40 Highway. It did provide another way to get onto the highway system. But certainly no one would seriously contend that the service station property of respondents, with easement of access to then existing 40 Highway, was not damaged by destruction of that easement simply because of the construction of an outer road which connects said property with the general highway system. What was once a valuable commercial site, due partly to the existing easement, has lost its value as commercial property and may now have value only as residential or farm property. The kind and extent of access or lack of it is always considered by a man of ordinary prudence in deciding whether or not he will purchase residential, commercial, or rural real estate. The construction of the outer road may well be taken into consideration by the triers of the fact in mitigation of damages and as to the extent that respondents are damaged but it is not a defense to the destruction of respondents’ easement of access to Old 40 Highway. If Old 40 Highway had become the outer road, then respondents would not be damaged by loss of access for the reason that their access would not be disturbed. But such is not the case here.

In State of Arizona ex rel. Morrison, Atty. General v. Thelberg, 87 Ariz. 318, 350 P.2d 988, a condemnation proceedings was brought to condemn defendant’s land for a controlled-access highway. A frontage road was constructed parallel to the controlled-access highway which afforded access thereto a distance of 1400 feet from defendant’s property. In discussing the measure of damages, the court says, l. c. 992 of 350 P.2d:

“[4] When the controlled-access highway is constructed upon the right of way of the conventional highway and the owner’s ingress and egress to abutting property has been destroyed or substantially impaired, he may recover damages therefor. The damages may be merely nominal or they may be severe. Other means of access such as frontage roads as in the instant case may be taken into consideration in determining the amount which would be just under the circumstances. Knox County v. Lemarr, 20 Tenn.App. 258, 97 S.W.2d 659. Other means of access may mitigate damages, State v. Ward, 41 Wash.2d 794, 252 P.2d 279, but does not constitute a defense to the action however. Golden v. Louisville & N. R. Co., 228 Ky. 134, 14 S.W.2d 379”.

In State v. Ward et ux., 41 Wash.2d 794, 252 P.2d 279, there was a condemnation proceeding in which the question arose as to whether the plans showing a service road were admissible. The court says, l. c. 280 of 252 P.2d:

“[1] Not only is some of appellants’ land taken, but their right of access to the highway from the remaining lands is also being condemned. Lack of access, of course, has a bearing upon the extent of the damage done to the remainder of the land, as well as upon the diminution of special benefits which ordinarily accrue to abutting land from the right to use the highway. The limited access feature of the highway must, therefore, be presented to the jury together with all other features of the proposed construction such as service roads, to enable it to properly assess all the elements of damage and special benefit that will result therefrom.
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“[2] There is no such question of substitution in the instant case. This is readily apparent when we realize that access to the land on the west side of the highway was not over any highway or road. Indeed, the road which served the entire farm did not lead from the buildings to the land in question. Nor is it contended by the state that the service road will give access between the two parcels of appellants’ property. It is, therefore, not a substitute for severance damages. Without the service road, however, the land in question would be landlocked and practically valueless. Thus, the service road avoids the damage which a lack of access would cause. This is mitigation, not substitution.
“The amount of damage which the entire project will do to appellants’ land on the west side of the highway depends upon whether or not there will bé a service road. The plan for it was therefore admissible in evidence for the guidance of the jury”.

In People v. Ricciardi, et al., 23 Cal.2d 390, 144 P.2d 799, the purpose of the condemnation was to acquire land for an underpass. Service roads furnished property owners only a circuitous means of access to highway. The court held that whether owners possessed a right which had been damaged was for the trial court, but how much the service road would mitigate the damage was for the jury, saying, I. c. 806 of 144 P.2d:

* * * This evidence was before the court at the close of defendants’ case at which time the ruling was made permitting the expert witnesses to testify to the effect upon the market value of the property not taken by reason of the contemplated improvement and the consequent requirement that the owner must thereafter take another route to reach the through traffic lane which before the improvement was immediately in front of his premises. To sustain the plaintiff’s position would require a ruling by this court to the effect that although a landowner’s easement of access has been substantially impaired, under no circumstances should circuity of travel occasioned thereby enter into a computation of the damages to be awarded. Such a ruling obviously would be beyond the bounds of propriety. Certainly the plaintiff would not contend that if the underpass be constructed as proposed and no means of access to Rose-mead Boulevard be provided for, the defendants would be without redress. It is too plain to admit of argument that if the underpass be constructed as proposed and the service roads were not provided for in the contemplated improvement, the defendants’ right of access to Rosemead Boulevard would be practically destroyed. In providing for the service roads the state must be deemed to have proceeded in frank recognition of the private right of access possessed by the defendants, that such right would be invaded, and intended by means of those service roads to minimize and entirely absorb the damages to which the defendants would otherwise be entitled. (Emphasis ours.) But in any event the question whether the defendants pos-r sessed a right which was damaged was for the trial court to determine. As to how much the service roads would mitigate the damage, i. e., how much would be the net damage, was a question of fact for the jury. See Knox County v. LeMarr, 20 Tenn.App. 258, 97 S.W.2d 659, 661”.

In Grand River Dam Authority v. Misenhimer, et al., 195 Okl. 682, 161 P.2d 757, l. c. 758, the court says:

“The controversy in this case arises out of the closing of U. S. Highway No. 60 at two points, one a little less than a quarter of a mile to the west of plaintiffs’ property and the other about a quarter of a mile to the east and a little south of said property, by inundation caused by the closing of the dam belonging to defendant. The said highway runs along the south side of plaintiffs’ property. The principal question for determination is whether in a case of this kind the owner of property abutting on the highway has a cause of action for damages against the Grand River Dam Authority when another roadway has been opened by the county which ordinarily affords a means of ingress and egress”. (Emphasis ours.)

At I. c. 761, of 161 P.2d, the court further says:

“[3-5] An owner must show that some right or interest which he enjoys in connection with the property, which is not shared with or enjoyed by the public,, is affected to entitle him to damages. The test is, has he suffered a special injury different in kind from that suffered by the public in general? The owner of property has a special interest in the roadway or street upon which his property abuts different from the general public. He has the right to adequate access to his land on the highway from either direction and whenever that right is cut off or materially impaired by an obstruction in the highway he suffers an injury different in kind, not merely in degree, from that suffered by the public in general. If the highway upon which his property * * * is placed in a pocket or cul-de-sac, he suffers a special injury and may recover damages even though he has access thereto by a more inconvenient circuitous route. We think this expresses the better view as well as the rule to which we are committed in this jurisdiction.”

In Oklahoma Turnpike Authority v. Chandler, Okl., 316 P.2d 828, l. c. 832, the Supreme Court of Oklahoma approved the doctrine announced in Misenhimer case, supra, saying:

“In view of- our consistent adherence to the rule we are not constrained to re-evaluate such pronouncement upon the basis, suggested by defendant, that compensation for damages for diminution in value must be considered by weighing relative interests of the public and the individual, to the end that government will not be unduly burdened in the exercise of what may be determined as most cómpatible for the public welfare.
“Defendant also urges, as part of the first proposition, that it was prejudiced by the court’s .refusal to instruct the jury that any judgment for plaintiffs had to be based upon a determination that any damage suffered was special and peculiar to plaintiffs, and different from that suffered by the general public, and thereby precluded the jury from considering whether plaintiffs still had a convenient means of egress and ingress identical with that used by the community in general. (Emphasis ours.)
“The jury was instructed that if the evidence showed construction of the Turnpike placed plaintiffs’ property on a dead end road, materially impaired their right to use the road as it formerly existed and thereby caused them damage, their verdict should be for plaintiffs. Such instruction conformed -to the .rule announced in the Misen-himer and Terminal Oil Mill cases, supra. Moreover, the jury was instructed that it might consider whether plaintiffs had been provided with a better or worse outlet than they had before the road was closed.” (Emphasis ours.)

In Clayton County v. Billups Eastern Petroleum Company, 104 Ga.App. 778, 123 S.E.2d 187, l. c. 189, the court says:

“The sole question here is whether a cause of action i's stated for damage to property by a petition alleging facts sufficient to authorize a jury to find substantial impairment of an' owner’s right of ingress and egress directly to and from the highway where, as in this case, the highway is converted from an unlimited to a limited access road and there is provided at the time of the change a service road by which the plaintiff’s property can be reached. Is such damage to be held to be com-pensable as a damaging of private property within the meaning of the constitutional provision in Art. I, Sec. Ill, Par. I (Code Ann. § 2-301), providing in part that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid ?” (Emphasis ours.)

The court further says, 1. c. 190 of 123 S.E.2d:

"The defendant contends that the easement of access theory is not realistic as applied to a four-lane express highway, as modern expressways are designed and constructed to move traffic in volume and are not planned, designed, constructed, or maintained to furnish business to establishments contiguous to them. This argument, however, is totally inapplicable under the facts as alleged in the present petition where the plaintiff had enjoyed practically unlimited ingress and egress for almost seven years before the highway was changed from an unlimited to a limited access one. Obviously, a different question would have been presented had the plaintiff located his business adjacent to an existing limited access road. Here, a right the plaintiff had enjoyed for almost seven years was allegedly substantially damaged. Neither our case law nor the constitutional provision makes any distinction as to the class of road involved. The prohibition is against the taking or damaging of private property for ■ public purposes without just compensation.
“Other jurisdictions have allowed compensation for impairment of the right of access even though there is available a means of indirect access, whether from other existing streets or by construction of service or feeder roads. See 43 A.L.R.2d 1077(4).” (Emphases ours.)

In Nichols et al. v. Commonwealth, 331 Mass. 581, 121 N.E.2d 56, l. c. 57, the Supreme Court of Massachusetts says:

“Before the taking the petitioners were the owners of a parcel of land which comprised approximately 6 acres with a frontage of approximately 410 feet on the turnpike to which the petitioners had unlimited direct access. The land taken comprised about .37 of an acre on the front of this parcel bordering on the turnpike. Before the taking the entire parcel was used for residential purposes but it was zoned so that use for commercial purposes was permitted for a depth of 200 feet from the turnpike.
“There was evidence that the petitioners had indirect access to the new highway by way of Preston Street, which bounded that part of the land which remained after the taking, but such indirect access was by a difficult route.” (Emphasis ours.)

The court held that in proceeding upon petition for damages allegedly sustained in taking petitioners’ land for highway purposes, evidence which bore - upon "impairment of and injury to petitioners’ former access to public way was erroneously excluded even though there was evidence that petitioners had indirect access to the new highway.

We do not find that the precise question of the effect of the building of an outer roadway has upon the right of an abutting landowner to collect compensation, when a portion of his land abutting an existing highway is condemned and his direct access to said highway has been impaired, has ever been decided by the courts of this state. The appellant cites some cases from foreign jurisdictions to the effect that the building of an outer roadway under such circumstances is a defense to the destruction or impairment of abutting owners direct access, but no Missouri cases: We are of the opinion, however, that the sounder rule is that the building of the outer roadway as aforesaid only goes to the mitigation of damages which such abutting owner may suffer as so decided in cases cited above. Regardless of the rule elsewhere, in Missouri it is the law that the abutting owner’s right of access to an existing highway is a property right which, when taken by condemnation'along with a parcel of land, entitles him to just compensation. The appellant ordinarily builds an-outer roadway so that the abutting owner’s property will not be landlocked and thereby to reduce said owner’s damages due to the destruction of his direct access, and the jury may consider such fact, among others, in determining the amount of compensation due said owner. The existence of the outer roadway, therefore, is to be considered only in mitigation of damages unless, perchance, the benefits of the outer roadway equal the damages resulting from loss of access, in which event the jury might conclude the landowner suffered no damage from loss of access. But the extent the building of an outer roadway reduces the abutting landowner’s damages from loss of direct access is a jury question and it cannot be said that the building of an outer roadway is/as a mátter of law, a complete defense as contended by appellant.

The measure of damages for the destruction or impairment of access to the highway upon which the property of an owner abuts is the difference between the market value of the abutting property immediately before and immediately after the destruction or impairment thereof. The damages awarded abutting landowner for destruction or impairment of access therefore is based, not upon the value of the right of access to the highway, but rather upon the difference in value of the remaining property before and after access thereto has been destroyed or impaired. This in turn is based upon the highest and best use to which the land involved is best suited before and after the right of access is molested. (State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988, 992). Loss of the easement of access, and the construction of an outer roadway, therefore, are elements which the jury may consider in determining the abutting landowner’s compensation in a condemnation suit.

The court is of the opinion that:

1. The trial court did not err in permitting respondents’ witnesses to testify that they took into consideration the element of loss of access in arriving at the amount of compensation to be paid the respondents.

2. The trial court did not err in giving Instruction No. 3 for respondents which permitted the jury to consider the taking of respondents’ right of access to existing U. S. Highway 40 in determining the damages, if any, resulting to the remainder of respondents’ whole tract of land. The instruction properly declares the law and is supported by the evidence. ■

. 3. The court did not err in refusing to give Instruction No. 6 on behalf of appellant. This instruction does not properly declare the law and is not supported by the evidence. Respondents did- not in the trial Court claim' that they had any right of access to the through way of Route 70'.’ Nor claim damages -from the lack of it. They claimed damages for destruction of their right of access to existing old Highway 40 as affecting their land. The instruction also told the jury that if respondents had unlimited access to an outer roadway, then they should not allow respondents any amount of money. In other words, this instruction told the jury that access to the outer roadway was, as a matter of law, a defense to respondents’ loss of access. This is not the law. Appellant should have submitted to jury that the unlimited right of access to. the outer roadway was an element to be considered in mitigation of respondents’ damages because of loss of access to old Highway 40.

We do not find ally error in the trial of this case and judgment herein is affirmed.

RUDDY, P. J., and WOLFE, J., concur.

ANDERSON, J., not participating.