author: PALMORE, Judge.

text:
    Claud (Claude) C. MESSER, Appellant, v. Theodore DREES et al., Appellees.
    Court of Appeals of Kentucky.
    June 5, 1964.
    Rehearing Denied Oct. 16, 1964.

      James A. Nolan, Ware, Bryson & Nolan, Covington, for appellant.
    Robert E. Ruberg, O’Hara & Ruberg, Covington, for appellees.
   PALMORE, Judge.

This is a Workmen’s Compensation case involving the reopening provision of KRS 342.125(1). The employe appeals from a judgment of the circuit court sustaining the action of the board in dismissing his application because there was insufficient indication of a mistake or change in conditions to establish grounds for reopening.

The appellant, Claud C. Messer, was a heavy equipment operator and at the time of the accident was 44 years old. He had been a steady worker. On August 4, 1960, while operating a backhoe, he was struck on the left front side of his head by a 6-pound clevis, a fitting rigged to a swinging line. He was knocked unconscious and probably fell to the ground from his seat on the machine, though no one present saw the accident and Messer is unable to say what happened immediately following the blow. Two of his jaw teeth were “sheared off.” He regained consciousness very shortly but was kept in the hospital overnight for observation.

Messer went back to work on August 15, 1960, and stayed about two weeks, but complained of headaches. After laying off another three weeks he returned on September 19, 1960, but could not stand the jarring of the machine and finally quit again on October 8, 1960. He has not been able to return to work at all since that time.

A compensation claim filed in December of 1960 resulted in an award reflecting total disability for 40 weeks and a 10% partial permanent disability thereafter. The full board award was made on September 19, 1961, and was based on testimony taken in March, April and May of that year. On September 18, 1961, while the matter was pending on review before the full board, the claimant, through new counsel, sought a reopening for the purpose of introducing further medical testimony. A supporting affidavit of counsel stated that it had been discovered from a competent psychiatrist (whose report was attached) that Messer was suffering- a traumatic neurosis, that this had been unknown to both present and previous counsel; and that further proof would establish a change of conditions and the existence of mistake in the referee’s estimate of the claimant’s condition.

The employer contested the motion to reopen, pointing out that at least one of the medical witnesses who testified in May of 1961 had stated specifically that Messer’s inability to return to work was the result of something other than an organic cause, apparently a neurosis. Hence it was argued that his counsel had simply failed to adduce timely proof with regard to causation. The motion was overruled, and in its opinion and award delivered the next day the board commented as follows:

“There is also evidence indicating that the plaintiff may be suffering from a traumatic neurosis. However, the evidence presented by the plaintiff is highly insufficient to sustain this proposition, particularly as to causation.”

No appeal was taken. A year later, on September 18, 1962, the claimant again moved to reopen on the same grounds as before, this time attaching as a part of the supporting affidavit a report by another psychiatrist, Dr. Max L. Lurie, to the effect that “Mr. Messer is suffering from organic brain disease in the form of a post traumatic encephalopathy manifested by blackout spells, severe memory loss and impairment of his thinking and concentration. From the psychiatric standpoint, he is probably permanently and totally disabled from this accident in regards to any adequate work or social adjustment.”

The board sustained the motion for the limited purpose of hearing evidence to determine the existence, vel non, of grounds for reopening. Dr. Lurie testified for claimant and Dr. Charles D. Fuess, Jr., also a psychiatrist, testified for the employer. Both agreed that Messer is totally disabled. Dr. Lurie was of the opinion that “the psychiatric disability is the direct outgrowth of the injury which Mr. Messer suffered approximately two years beforehand.” Dr. Fuess stated that “from the amount of information the patient could give me” he could not give the cause. He was inclined to suspect that the illness is emotional rather than organic and, if so, that an “emotional illness of this severity — ■ these symptoms — would have to be of long standing.” Dr. Fuess emphasized, however, that he did not have a dependable case history, and that “in most emotional illnesses an adequate history is almost mandatory to make a diagnosis.” Most importantly, he conceded that a trauma such as Messer sustained on August 4, 1960, could precipitate or aggravate the type of disability he found in him.

On the basis of the testimony of the two psychiatrists the board issued an opinion and order “dismissing” the motion to reopen “on the merits,” that is, because “there has been no change in plaintiff’s condition nor a mistake made in granting the original award.” In thus concluding, the board seized on the above quoted comment from its previous opinion of September 19, 1961, to the effect that there was evidence at that time indicating traumatic neurosis,, buttressed by Dr. Lurie’s more recent tes-, timony in which he expressed the opinion, that Messer had been totally disabled from the time of the accident. Both the board' and the circuit court on review took the position that the motion to reopen was a belated effort to develop evidence that could, and should have been produced prior to the-original submission of the case for decision, in June of 1961.

To make a long story short, we do not agree. We think the case should have been opened for further testimony in September of 1961, pursuant to the first motion, and that certainly it should be reopened now.

There is a rule in the game of chess that ■once the player with the move has touched a man he must move that man. He cannot change his mind and move another. Here the attorney who represented Messer until after the case had been submitted and passed on by a referee pitched his claim on the theory that the compensable injury was confined to aggravation or “lighting up” of a pre-existing degenerative arthritic condition of the cervical spine. In the beginning it was not at all obvious that a psychiatric disturbance was involved. For example, the attending physician, a general practitioner, did not send him to a psychiatrist; he sent him, rather, to a neurosurgeon and then to an orthopedic surgeon, each of whom detected the presence of a psychological complication but refrained from an attempt to diagnose its cause or extent. Somewhere along the line, in April of 1961, Messer was seen by Dr. Thomas A. Weldon, the psychiatrist whose report dated September 14, 1961, was later used in support of the first motion to reopen. Whether counsel had a prompt report of this first examination by a psychiatrist and, if so, what it disclosed are not shown by the record. As we have suggested, however, Messer’s present counsel did not know of it until immediately before they moved for permission to develop the matter further.

We do not know the reason for the failure of original counsel to pursue the question of what relationship, if any, exists between Messer’s mental disturbance and the accidental injury he sustained on August 4, 1960. As of now, however, it is abundantly clear from a mere reading of the record that the outward and visible manifestations of his disability have progressed to the degree that what may not have been readily apparent in the spring of 1961 is now clear. Somewhere during the course of this transition it was incumbent on Messer’s counsel in the exercise of their professional responsibility to shift the course and theory of his claim. Their timing in this respect cannot fairly be judged according to the standards of medical skill; they are lawyers. And a workmen’s compensation case is not a game in which a player may not reconsider his move once he has begun it. The first motion for reopening, in September of 1961, which stated in substance that there had been a misconception with respect to the nature of the disability, and thus in the way the case had been practiced, was in our opinion a timely and proper application under the particular circumstances at hand.

We do not suggest that after a case has been lost or appears about to be lost counsel should be allowed to halt the proceedings and bring up reinforcements. But bearing in mind that compensation laws are fundamentally for the benefit of the injured workman, a just claim must not fall victim to rules of order unless it is clearly necessary in order to prevent chaos. Time often tells more about medical cases than the greatest of experts are able to judge in advance. In Clear Fork Coal Company v. Gaylor, Ky., 286 S.W.2d 519, 522 (1956), this court recognized, for example, that even the permanence of a disability theretofore thought to be temporary “is of itself in the nature of a change.” When subsequent events indicate that an award was substantially induced by a misconception as to the cause, nature or extent of disability at the time of the hearing, justice requires further inquiry. Whether it be called a “mistake” ■or a “change in conditions” is a matter of •mere semantic taste. The important question is whether the man got the relief to •which the law entitled him, based upon the truth as we are now able to ascertain it. Cf. Blue Diamond Coal Company v. Meade, Ky., 289 S.W.2d 503 (1956).

Wells v. Fox Ridge Mining Co., Ky., 243 S.W.2d 676 (1951), is distinguishable in that there was no change, actual or ostensible, in the claimant’s condition, whereas in this case, though Messer’s actual malady and consequent 100% permanent disability may actually have existed from the time of the accident, the observable symptoms necessary to an accurate and reliable diagnosis became more manifest over a period of time extending beyond the original hearing.

The case will be remanded for the taking of whatever additional proof is necessary to a fair determination of the nature, cause and extent of appellant’s disability. If it is partially attributable to a pre-existing condition, not related to his work, which would eventually have been disabling regardless of the accident, but has been hastened or aggravated by the accident, apportionment may be ordered. KRS 342.005 (2); Terry v. Associated Stone Co., Ky., 334 S.W.2d 926, 930 (1960). If the board finds itself insufficiently advised, as suggested in its order of September 19, 1961, KRS 342.315(1) provides access to independent professional advice of its own choosing.

The judgment is reversed with directions that it be remanded to the board for further proceedings consistent with this opinion.

      . The terminology is misleading, induced by the board’s having “sustained” the motion for the purpose of determining whether there were grounds to sustain it. It is unnecessary, of course, to sustain a motion in order to bear evidence pro and eon directed to the existence of grounds therefor. The “dismissal” was simply an overruling of the motion for-lack of sufficient grounds.

      . There is no contention that the overruling of that motion is a bar to the subsequent motion. See Clear Fork Coal Company v. Gaylor, Ky., 286 S.W.2d 519, 521 (1956).

      . At the time he testified in March of 1961 the claimant was wearing a neck brace and said he was sleeping at night with a 6-pound weight on his head.

      .The experiences of Drs. Lurie and Fuess in seeking an accurate case history from the patient in 1962 contrasted sharply with his testimony in March of 1961 and with his having provided a satisfactory history to Dr. Lotspeitch in September of 1960.

      . Whether, however, such a progression would always be necessary to a reopening, we expressly decline to say.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    Raymond A. DAVIS, Plaintiff-Appellant, v. Viola Mae Davis BROUGHTON, Defendant-Respondent.
    No. 8305.
    Springfield Court of Appeals Missouri.
    Sept. 21, 1964.
    J. W. Grossenheider, Lebanon, for plaintiff-appellant
    Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for defendant-respondent.
   STONE, Judge.

This is another knotty snarl in the tangled skein of postmarital troubles woven by Raymond A. Davis and Viola Mae Davis (now Broughton). The second marriage of these parties was terminated on April 16, 1960, by decree of the Circuit Court of Laclede County in Case No. 4365 instituted by Raymond, as plaintiff, against Viola Mae, as defendant. That decree granted a divorce to Raymond, awarded to him custody of two minor children, and closed with the paragraph (hereinafter referred to as the quoted paragraph) which spawned this litigation: “It is further ordered, adjudged, and decreed by the court that as a part of the property settlement herein, plaintiff agrees to pay the defendant $20 per week beginning April 23, 1960 and continuing until a final property settlement between the parties herein is consummated.”

On December 27, 1962, Viola Mae filed in Case No. 4365 a “Motion for Attachment for Contempt,” in which she alleged, inter alia, that Raymond had paid only the aggregate sum of $525 under the quoted paragraph, asserted his continuing obligation thereunder to pay $20 per week “until the conclusion” of Cases Nos. 6095 and 6148 (hereinafter sometimes referred to as the consolidated cases) theretofore instituted in the Circuit Court of Pulaski County and (on change of venue) tried in the Circuit Court of Phelps County but then pending and undetermined on appeal to this court [see Davis v. Broughton, Mo.App., 369 S.W.2d 857], and prayed for issuance of an order directing Raymond to show cause why he should not be punished for contempt in failing and refusing to make the aforesaid weekly payments and why the court should not “give such other and further relief as [might] be just and proper.” Upon Viola Mae’s said motion, the requested “Order to Show Cause” was issued and made returnable on January 12, 1963, on which date both parties appeared and testified.

In response to the inquiry of his counsel, “how much have you paid, if anything, to [Viola Mae] by reason of this court’s decree ordering you to pay $20 per week * * *,” Raymond testified that he had paid the aggregate sum of $525 in cash, “plus $1,754 that I paid for a new car [for her], plus about $400 gas that I bought for the store [on her tract],” and “some insurance and taxes.” Viola Mae admitted Raymond’s payment of $525 in cash under the decree, but she insisted that none of the other expenditures by Raymond (i. e., for a new automobile, gas, insurance or taxes) had been made under or pursuant to the decree. In his examination of both parties, Raymond’s counsel unsuccessfully sought to establish' that his client’s obligation under the quoted paragraph of the decree had been satisfied by such other expenditures, but it is conceded here (in the language of Raymond’s brief) that there was no evidence that Viola Mae “agreed to accept anything other than cash as settlement of [Raymond’s] obligation under the decree.”

On October 14, 1963, the trial court filed a “Memorandum” embodying his written findings of fact and conclusions of law and entered a “Judgment” (which more appropriately might have been denominated a “special order after final judgment” [see V.A.M.S. § 512.020] and is hereinafter sometimes referred to as “the special order”), in which he “overruled and dismissed” Viola Mae’s “Motion for Attachment for Contempt” but, after pointing out that the parties had agreed (as indeed they had in the trial court and do here) that “the court should find and adjudge in this proceeding the amount, if any, now owed by plaintiff to defendant under the original decree in this cause, dated April 16, I960,” fixed the amount owing on the date of the special order (i. e., on October 14, 1963) at $3,122.42, and ordered execution therefor. Plaintiff Raymond appeals.

Lest our consideration of this-appeal on its merits be misconstrued as impliedly approving the procedure adopted by the parties, we note preliminarily that, although the overwhelming weight of authority elsewhere is to the contrary [annotation 30 A.L.R. 130], it has long been settled in Missouri that a judgment for alimony is simply a debt, within the meaning of the constitutional prohibition against imprisonment for debt [Mo.Const. of 1945, Art. 1, Sec. 11], and that payment of such judgment cannot be enforced in a contempt proceeding. A fortiori, payment of a judgment incorporating or adopting valid contractual provisions settling property rights arising out of the marital relationship [cf. North v. North, 339 Mo. 1226, 1230, 100 S.W.2d 582, 584(1), 109 A.L.R. 1061; Alverson v. Alverson, Mo.App., 249 S.W.2d 472,475(1,2) ] cannot be so enforced. Thus, the trial court properly “overruled and dismissed” Viola Mae’s “Motion for Attachment for Contempt.” But, since both parties admittedly regarded that motion simply as the procedural vehicle by which they might obtain judicial determination of the issue as to the amount owed by Raymond under the decree of April 16, 1960, and since that issue was, by agreement of the parties, tried at the hearing on January 12, 1963, and determined by the special order of October 14, 1963, we treat that issue as having been raised and presented properly by the motion. V.A.M.R. Rule 55.54; V.A.M.S. § 509.500.

Raymond’s primary point on appeal is that the trial court erred in finding that he owed Viola Mae $3,122.42 because (in the language of his brief) “under the law and the evidence [she] having already put her claim in issue and having it decided, is estopped from prosecuting this action for the issue is res adjudicata.” The essence of Raymond’s argument is that, since, in Viola Mac’s action of ejectment (Case No. 6148 in the Circuit Court of Pulaski County), she had stated her then “understanding” that the $20 per week mentioned in the five-line handwritten agreement prepared by Raymond’s attorney and signed on April 4, 1960, was to be paid by Raymond for rent of the house on the tract in dispute, the judgment in Case No. 6148 denying Viola Mae’s claim for rent [see Davis v. Broughton, supra, 369 S.W.2d loc. cit. 858] estopped her “from bringing this action or any further action concerning the obligation of the plaintiff to pay her $20 per week.”

In support of this point, Raymond’s counsel quotes extensively from Norwood v. Norwood, 353 Mo. 548, 557-558, 183 S.W. 2d 118, 122-123(4, 5) : “Generally, in order to have estoppel by a former judgment (res adjudicata), there must be: (1) Identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. Rossi v. Davis et al., 345 Mo. 362, 133 S.W.2d 363, loc. cit. 373, 125 A.L.R. 1111, and cases there cited. * * * Res adjudicata may be as to a judgment or as to some particular facts litigated between the parties. (Citing cases)

“ ‘It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res adjudicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action * * *.’ 30 Am. Jur., Judgments, § 178 [now 30A Am.Jur., Judgments, § 371, p. 411].

“ ‘A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by the judgment therein * * * and cannot be again litigated in any future action between •such parties or privies * * 34 C.J., § 1282, p. 868 [now 50 C.J.S. Judgments § >686, p. 141].” (All emphasis herein is •ours.)

Viewed in proper perspective, Raymond’s plea of estoppel by judgment is that Viola Mae is precluded from recovering $20 per week under the quoted paragraph of the decree entered in the divorce suit (Case No. 4365 in the Circuit Court of Laclede County) on April 16, 1960, by reason of her subsequent testimony in the ejectment action (Case No. 6148 in the Circuit Court of Pulaski County) instituted on September 14, 1961, and determined in the trial court on July 31, 1962. But this plea of estoppel by judgment brushes aside the plain truth that the sole purpose of this after-judgment proceeding in Case No. 4365 has been and is to determine the amount owed by Raymond under the decree of April 16, 1960, and necessarily rests on the unjustified and unwarranted assumption that this after-judgment proceeding, begun as a civil contempt proceeding, by the filing of Viola Mae’s “Motion for Attachment for Contempt” on December 27, 1962, is a separate and independent action in which the meaning of the handwritten agreement and the rights and obligations of the parties thereunder are in issue.

Generally speaking, “ ‘a proceeding for contempt to enforce a remedy in a civil action is a proceeding in that action.’ ” Odom v. Langston, 358 Mo. 241, 246, 213 S.W.2d 948, 951; 17 C.J.S. Contempt § 62(6), loc. cit. 159. See also 17 C.J.S. Contempt § 62(3), loe. cit. 151. Viola Mae’s “Motion for Attachment for Contempt,” which initiated the instant proceeding, was filed in Case No. 4365; the opening statement in the first numbered paragraph of the motion was that “on April 16, 1960, a decree was entered by this court in this cause * * * ”; and nothing in the transcript on appeal, which bears the caption and file number of the divorce suit, indicates that the trial court or either litigant viewed this proceeding as a new and independent suit or regarded the validity or integrity of the decree of April 16, 1960, as in issue herein. Viola Mae’s action of ejectment (Case No. 6148), instituted on September 14, 1961, and determined in the trial court on July 31,1962, is not “a former judgment,” and this after-judgment proceeding to ascertain the amount owed by Raymond under the decree entered in the divorce suit (Case No. 4365) on April 16, 1960, is not “a subsequent action,” within the contemplation and meaning of those terms as used in the above-quoted statements of principle in. Norwood, supra.

Raymond did not in the trial court, and does not here, in any wise impugn the validity or integrity of the decree of April 16, 1960, which (as to the obligation to pay $20 per week) in the absence of a motion for new trial became final thirty days after the date of entry. V.A.M.R. Rule 78.01. In the special order of October 14, 1963 (from which this appeal was taken), the trial court specifically found “that at the request of plaintiff herein, Raymond A. Davis, the decree in this cause, dated April 16, 1960, incorporated and approved that portion of the property settlement agreement of the parties [the five-line handwritten agreement of April 4, 1960] which required plaintiff [Raymond] to pay to defendant [Viola Mae] the sum of $20 per week beginning on April 23, 1960, and continuing until a final property settlement between the parties herein is consummated.” Although the decree was not framed in the precise language of the handwritten agreement, there is no reasonable room for doubt but that the decree not only constituted judicial approval of the contractual obligation theretofore assumed by Raymond but also reflected Raymond’s then construction of the handwritten agreement. For, Viola Mae was not represented by counsel either when the handwritten agreement was prepared by Raymond’s attorney or when Raymond procured the divorce decree of April 16, 1960; she was not present in court when the divorce decree was entered; and Raymond and his attorney admittedly presented the handwritten agreement to the court and obtained the decree, which “incorporated and approved” (as the court found in the special order) the provision of the handwritten agreement for payment of $20 per week to Viola Mae.

Almost sixteen months later, to wit, on September 14, 1961, Viola Mae instituted the action of ejectment (Case No. 6148 in the Circuit Court of Pulaski County), upon trial of which she expressed her then “un-understanding” that the $20 per week mentioned in the five-line handwritten agreement of April 4, 1960, was to be paid by Raymond for rent of the house on the tract in dispute. But validity of the decree of April 16, 1960, in the divorce suit (Case No. 4365 in the Circuit Court of Laclede County) was not, and properly could not have been, challenged in the ejectment action (Case No. 6148), and nothing said by either party upon trial of Case No. 6148 as to his or her “understanding” of the meaning of the handwritten agreement could have affected the rights and obligations of the respective parties under the quoted paragraph of the decree in Case No. 4365, which had long since become final. For, when that portion of the handwritten agreement pertaining to payment of $20 per week to Viola Mae was “incorporated and approved” in the court’s decree of April 16, 1960, it was merged or swallowed up in the decree, and the rights and obligations of the respective parties (as to such payments) thereafter were governed and controlled by the decree. In fine, the instant record affords no basis for application of the principle of es-toppel by judgment, and Raymond’s primary point on this appeal must be disallowed.

However, Raymond argues secondarily that, if his plea of estoppel by judgment be denied, the amount found in the special order of October 14, 1963, to have been due under the quoted paragraph of the decree entered on April 16, 1960, should be reduced. The quoted paragraph fixed and limited the period during which Raymond was to pay $20 per week as “beginning April 23, 1960 and continuing until a final property settlement between the parties herein is consummated.” Opposing counsel agree that, after entry of the decree on April 16, 1960, no final property settlement was consummated voluntarily or by act of the parties. Viola Mae’s counsel assert, and the trial court found in the special order, that a final property settlement between the parties was consummated by operation of law on August 5, 1963, the date on which the judgment in the consolidated cases became final upon appeal to this court. See again Davis v. Broughton, Mo.App., 369 S.W.2d 857. The theory of Raymond's attorney (as we understand it) is that Viola Mae’s testimony upon trial of the consolidated cases (as he views it) showed that “the $20 per week obligation was to continue until the dispute as to the car, furniture and bank account was settled and * * * the disposition of the real estate had nothing to do with the [five-line handwritten] agreement”; that the judgment of the circuit court in the consolidated cases settled the rights of the parties with respect to personal property and, when Viola Mae did not appeal therefrom, became final as to her on September 21, 1962; and that “she is now estopped to assert any liability on the part of [Raymond] after * * * September 21, 1962.” We observe parenthetically that, since the theories of both litigants rest on the common belief of interested counsel that ■“a final property settlement between the parties herein [was] consummated” by operation of law at some stage of the consolidated cases, we proceed on the same assumption without probing the legal validity "thereof.

Raymond’s argument on this point would ■send us back into the bewildering maze of testimonial conflicts and contrarieties into which we were driven in the consolidated •cases. Davis v. Broughton, Mo.App., 369 S.W.2d 857. Having found our way out of the maze on that occasion, we decline Raymond’s invitation to reenter it gratuitously. For, as on the appeal from the judgment in those cases we found positive resolution of the conflicts and contrarieties in the testimony unnecessary (although stating that, if essential to proper disposition of that appeal, we would have deferred to the finding of the trial court resolving the factual issues against Raymond [Davis, supra, 369 S.W. 2d loc. cit. 862]), we again think it needless to decide whose testimonial version of the facts should be accepted — a happy circumstance from our standpoint since certain portions of each version would not be too palatable to us even if seasoned with the proverbial grain of salt.

However, it may not be amiss to note, in passing, that some segments of each testimonial version in the consolidated cases would afford support for the criticized finding of the trial court in the special order under review. Raymond said that he was to pay $20 per week until the tract, on which the dwelling house occupied by him and the children was situate, was sold and the proceeds of sale were “equally divided,” and that “there was no limit set on the time that we was to live there * * * until the property was sold.” True, Viola Mae stated that Raymond’s payments of $20 per week were “for rent so that I could pay my rent someplace else”; but, more importantly, the clear import of her testimony was that, however long Raymond’s occupancy of the dwelling house on her tract might be prolonged, he was to continue the weekly payments until his tenancy terminated. Admittedly, Raymond did not surrender possession of the dwelling house when the trial court entered judgment in the consolidated cases on July 31, 1962, denying his claim to an equitable lien on the real estate owned by Viola Mae and directing restitution of possession to her. Davis, supra, 369 S.W. 2d loe. cit. 858. Rather, at the hearing in the instant proceeding on January 12, 1963, Raymond quickly conceded that he still resided in the same dwelling house, and nothing in the record before us suggests that he surrendered possession of that house prior to August 5, 1963, when the judgment in the consolidated cases became final.

Regardless of what was said or claimed by the respective parties upon trial of the consolidated cases, we remain mindful that the five-line handwritten agreement was merged or swallowed up in the decree entered in Case No. 4365 on April 16, 1960, and that it was at Raymond's behest and by his invitation that the language of the decree (i. e., that Raymond was to pay $20 per week “beginning April 23, 1960 and continuing until a final property settlement between the parties herein is consummated”) was spread with the same broad brush used by counsel in the handwritten agreement. The plain common sense of the matter (which neither courts nor counsel should view with scorn or disdain) would seem to be that it could not well be said that there had been “a final property settlement between the parties” until there had been a final determination of all disputed issues in the consolidated cases; and, with Raymond still occupying the dwelling house on Viola Mae’s real estate and still insisting that he was entitled to an undivided one-half interest therein, there certainly was no such final determination prior to August 5, 1963, when the judgment in the consolidated cases became final upon appeal.

Being unable to say in this court-tried proceeding that the special order of October 14, 1963, was “clearly erroneous” [V.A. M.R. Rule 73.01(d); V.A.M.S. § 510.310 (4)], it becomes our duty to affirm. It is so ordered.

RUARK, P. J., and HOGAN, J., concur.

      . For a better understanding of what is to follow in this opinion, the interested may refer to Davis v. Broughton, Mo.App., 369 S.W.2d 857.

      . Coughlin v. Ehlert, 39 Mo. 285; Harrington v. Harrington, 233 Mo.App. 390, 394-395, 121 S.W.2d 291, 292-293(2); Francis v. Francis, 192 Mo.App. 710, 719, 179 S.W. 975, 977(1); Ex parte Kinsolving, 135 Mo.App. 631, 116 S.W. 1068(1). See Ex parte Fowler, 310 Mo. 339, 353-354, 275 S.W. 529, 533(7); White v. Hutton, Mo.App., 240 S.W.2d 193, 200(8).

      . “ ‘ * * * Mr. Davis & Mrs. Davis agreed to have Mrs. Davis receive $20 per week until their property is sold and the proceeds divided.’ ” See Davis v. Broughton, supra, 369 S.W.2d loc. cit. 861.

      . On this point Raymond’s counsel also cites Reis v. La Presto, Mo., 324 S.W.2d 648; Ratermann v. Ratermann Realty & Inv. Co., Mo.App., 341 S.W.2d 280, 290-291(7-9); Whiteley v. Whiteley, Mo. App., 325 S.W.2d 502.

      . A civil contempt proceeding “is one instituted to preserve and enforce the rights of a private party to an action and to compel obedience to a judgment or decree intended to benefit such a private party litigant.” State on inf. of McKittrick v. Koon, 356 Mo. 284, 301, 201 S.W.2d 446, 454(7); Middleton v. Tozer, Mo.App., 259 S.W.2d 80, 84(1). See Holt v. McLaughlin, 357 Mo. 844, 846, 210 S.W.2d 1006, 1007(3); 17 C.J.S. Contempt § 62(6), p. 157.

      . Prom the transcript in the consolidated cases (in evidence here by agreement of counsel), we find that Raymond answered in the affirmative when his counsel asked whether “we promised Mrs. Davis that we would see that he [the court] saw this [handwritten agreement] and incorporated this in the decree.”

      . Luedde v. Luedde, 240 Mo.App. 69, 77, 211 S.W.2d 513, 517(4) ; Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675, 680 (1) ; 50 C.J.S. Judgments § 599, pp. 20-21; Restatement, Judgments, § 47, p. 181; id., § 68, comment a, loc. cit. 294.


author: RUARK, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. A. J. ELLIS et al. Exceptions of C. Arch BAY and Virginia E. Bay, Defendants-Respondents.
    No. 8308.
    Springfield Court of Appeals. Missouri.
    Sept. 17, 1964.

      William T. Powers, Jr., Springfield, for plaintiff-appellant.

      J. Weston Miller, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for defendants-respondents.
   RUARK, Presiding Judge.

This is in condemnation on the question of just compensation. Plaintiff, now appellant, is the State Highway Commission, which we will hereafter refer to as “Highway.” In 1954 it engaged in a project which involved widening and other construction on Route 65 along Glenstone Avenue, which runs north and south through the eastern portion of the City of Springfield. The old highway was two-lane pavement (the exact width of which we are not sure) with wide shoulders covered with chat or crushed stone, part of which had some kind of asphaltic covering and part of which had some kind of oil. It seems to be conceded by all parties that Glenstone was a reasonably busy street. Defendants Bay (hereinafter called Owners) owned five properties along this street. Two of them, a restaurant building (or steak house, as the Owner called it) and a filling station, were both included as Item 19 of the Petition. They were located on a tract at the northeast corner of the intersection of Glenstone and Grand Street. Another tract, sometimes called “the root beer property” or the “drive-in” (Item 17), lay on the southwest corner of the intersection of Glenstone and Belmont, which is the first street north of Grand. Yet another property was a grocery store (Item 20) located on the southeast corner of Glen-stone and Grand; but, since no damages were allowed in respect to it, we need not consider it further. The area was one suited to businesses which served those who come by automobile. The business properties above-mentioned were devoted to purposes for which they were adapted and, as was said, at least in respect to the filling station (over which rages the greatest controversy in regard to Owners’ compensation), to the “highest and best use.” A short distance south of these business properties was a residence which, because of the size of lot (fifty-foot front), the parties also seem to agree was devoted to its best use. We will consider it separately hereafter.

We refer back to the business property in the block between Grand and Belmont. All of this was situate on a grade to conform to the then street level. The restaurant and filling station sat on a tract fronting approximately two hundred ten feet on Glen-stone. Sixty feet of it was devoted to the restaurant and (the corner) one hundred fifty feet to the filling station. Depth of the filling station property apparently was one hundred twenty feet. Previous to this taking, Owners had at their own expense installed an underground drainage system, consisting of a fifteen-inch pipe with iron gratings. This conformed to the existing street grade and, according to Owners' evidence, took care of the drainage perfectly. They had also paved completely out to join the then existing street paving, all this according to Highway’s specifications. There was no curb and gutter. This left what was referred to as one hundred per cent level access across the full two-hundred-ten foot front of the two businesses. That is, customers of the filling station or restaurant could turn in or drive out anywhere along that distance. The filling station building extended thirty-two feet north and south and twenty-four feet east and west. It was frame with white brick veneer and plastered interior, on foundation, with office and display room, two rest rooms, wash room and rack, grease room with drain. It had attic or overhead storage space and compressed air hoists both inside and outside; in front was a pump island with three self-metering pumps in operation. Driveways, between the building and the-island, and between the island and the then property line, were ten feet in width. This property had been leased to an oil company on a (then) standard one cent per gallon rate. Average gross annual rentals received based on such gallonage in the five years, previous to the date of taking were approximately $1,802.27.

The restaurant or “steak house” building, eighteen by forty feet plus rest rooms (additions), was on foundation and had wood floor covered with tile, kitchen, and booths with room to serve thirty-six people, exclusive of the bar and stools. This was leased as a dinner house at $90.00 per month, plus five per cent of the gross volume of business. Average rental was $150.-00 per month.

The drive-in (or “root beer”) property on the other side of the street up the block at the intersection of Belmont and Glenstone had a frontage of one hundred fifty feet and also had level “one hundred per cent access.” The building was frame with logs nailed to the outside in order to give a rustic effect. Its dimensions were twenty-two and seven-tenths by twenty-six feet. On the front it had a porch effect with what appears (from the Defendants’ picture exhibit) to have been a serving counter running across the front. This property was devoted to the sale of root beer and soft drinks, coney islands, hamburgers, et cetera. Owner valued the building alone at $5,000.00. Distance from the front of the building to the then (before) property line was variously stated at twelve to fifteen feet. According to the Owner, there was (before taking) room for customers to park in front or drive around and park at the sides and in the rear. Owners had leased this property for six years from July 2, 1952. Rental was $125.00 per month.

The date of taking was July 2, 1954. The construction by Highway involved the building of a four-lane highway (instead of the previous two-lane) with a parking lane on each side and curb and gutter. The project required the taking of an additional five feet of land across the fronts of Owners’ property on both sides of the street and a change of from seven to ten inches in grade. Limited entrances or driveways through the curb and gutter were provided instead of previous complete, level, and unrestricted access. The chief designer for Highway testified that the construction left a “sharp dip” at the front of the filling station property.

The commissioners awarded Owners $1,125.00 for the drive-in property and $1,700.00 for the restaurant-filling station, nothing for the grocery store or residence. Owners excepted, and the case was tried by the court without a jury.

In this trial, Owners’ evidence was that the filling station, as it then existed, was in practical effect rendered useless because the appropriation of land off the front left only five feet of space outside the pump island. The restoration of usefulness required the moving back and restoration of the station with its pumps, lifts, wiring, et cetera (at an estimated cost of $4,000.00), the acquiring of additional land at the rear in order to make room, and also the grading off of the lot to meet the change of grade and repavement of such (total cost for that according to the Owners was a little more than $4,000.-00). Estimates of various witnesses for the Owners were that the filling station property had suffered an over-all decrease in before and after value in amounts ranging from $13,000.00 to $6,500.00, and that the restaurant property had suffered a decrease in before and after value ranging from $3,000.00 to nothing. Two witnesses (Den-nison and Riebold) for Highway considered the restaurant and filling station as one property and in answer to the question propounded by its counsel — “Taking into consideration, immediately after July 2nd, 1954, the date of taking, the projected construction of a six lane highway, curbs and guttering, deceleration lanes, pavement, condition of the new construction, new pavement, do you have an opinion as to the market value of that property after July 2, 1954?” —stated that there was an increase in overall value of the combined or whole property of $4,500.00 and $3,700.00, respectively. The trial court found that Owners were entitled to just compensation of $5,000.00 for the filling station property and nothing for the restaurant property.

As to the drive-in property, Owners’ witnesses variously estimated that it had suffered an over-all decrease in before and after value ranging from $5,000.00 to $3,000.00. It was their view that, because of the loss of space in front of the building-, the property-had lost its usefulness for the purpose to which it was adapted and had been devoted. Another reason offered (by at least one of Owners’ witnesses on cross examination) was the lessening or difficulty of access due to construction of two driveway entrances through the curb and gutter. Highway’s witnesses, Riebold and Dennison, gave estimates of an increase in value of $1,800.00 and $2,000.00. As to this drive-in property, the trial court allowed just compensation in the sum of $3,500.00.

The court also allowed $500.00 as compensation for appropriation under a construction easement at the front of the residence.

The over-all total found for just compensation was $9,000.00. To this amount the court added interest at six per cent on the sum of $6,175.00 (the difference between the $2,825.00 deposited as commissioners’ award on July 2, 1954, and the amount found to be due as just compensation on date of judgment, September 20,1963).

Highway’s first assignment is that the addition of interest on the amount in excess of that deposited for the taking was error; that the “interest statute,” § 523.-045 V.A.M.S. (S.B. No. 248, Laws of 1959), should not be applied retroactively because such statute deals with substantive rights. That section, as appellant contends, deals with three situations: (1) where the condemnor abandons the project, (2) as here, where the verdict or judgment is in excess of the commissioners’ award, and (3) where the verdict or judgment is less than the amount of the award. Prior to the adoption of such section this court had stated in Arkansas-Missouri Power Co. v. Hamlin (1956), Mo.App., 288 S.W.2d 14, and again in State ex rel. State Highway Commission v. Galloway (1956), Mo.App., 292 S.W.2d 904; Mo., 300 S.W.2d 480, that where the verdict and judgment were in excess of the award it was necessary to add interest to the amount set forth in the verdict in order to preserve the constitutionality of our procedures for taking of private property for public use, the interest so added not being interest eo nomine but a part of just compensation for deprivation of the land. Thereafter the Supreme Court in State ex rel. State Highway Commission v. Green (1957), Mo., 305 S.W.2d 688, held that the mechanics suggested by the two cases aforementioned, that of having interest added by the trial judge instead of being found by the jury, was improper; and, while the court in that (Green) case refrained from passing on the substantive question as to whether or not the landowner was entitled to interest on a deficiency between award and judgment, it did suggest (loe. cit. 695) that if the matter was called to the attention of the legislature it might authorize the trial judge to enter judgment for the additional amount. Subsequent to that decision, § 523.045 was enacted.

In St. Louis Housing Authority v. Magafas, Mo., 324 S.W.2d 697, and in City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, the addition of interest was again considered (see also Mayor, et al, v. Boggess, Mo.App., 332 S.W.2d 305), and the right to award of interest on the increased amount was upheld. Both of these cases dealt with situations which arose before the enactment of § 523.045.

It is our conclusion that the right of the landowner to interest on the difference between amount deposited for the taking (as mentioned in No. 2 above) and the amount finally adjudged was the substantive law of the State of Missouri in existence at the time § 523.045 was enacted and that insofar as such section provided for that right it was declaratory only of the then existing substantive law. The vehicle by which the substantive right was to be enforced and made effective (by addition to the amount of the verdict) was only procedural in providing method and mechanics for its attainment. In other words, the right (of the landowner to interest on amount of compensation not deposited) already existed. The statute simply provided a simple way of getting it. Hence it seems to us that there is no question of the retroactive operation of the statute as to a substantive matter insofar as it applies to this situation. It is true that the trial court, in entering judgment for the interest, referred to § 523.045. We think that it was his intention to make such reference as authority for the procedure which he followed; but if he intended it as creating authority for the existence of the right to interest it would not be reversible error; for a right judgment for a wrong reason is nevertheless right.

Assignment No. 2 has reference to the refusal of an exhibit. Owners’ witness Ryan testified that he was familiar with the properties and with property values in that area in 1954. For five years prior to 1955 he had been associated with a real estate agent and with a title company. For a year before July 2, 1954, he had worked as office manager for a real estate brokerage company and “was inspecting and handling and familiar with sales, offers for sale, leasing of properties of this kind and character.” And, “I was on that property time and again prior to that [July 2, 1954].”

“Question: As a real estate representative?
“Answer: I was on the property as a real estate representative, too.”

He got a license as a salesman sometime in 1954 — the exact date he did not remember —and as a broker in 1955. He testified as to before and after values. Highway offered Plaintiff’s Exhibit No. 2, which was a certificate from the State of Missouri Real Estate Commission stating that Ryan was originally licensed as a salesman on December 3, 1954, and as a broker on May 16, 1955. On objection of Owners, the court looked at the exhibit and refused it as having no probative value.

Highway offers no authority to support its claim of error. (See Ayres v. Keith, Mo., 355 S.W.2d 914[6]). ' As nearly as we can grasp the argument, it is that, since the witness stated that he was familiar with the property in his capacity of “real estate representative,” the exhibit would disprove such fact. The witness had stated his actual experience and familiarity with real estate in that area and with these tracts in particular. He did not state that he was a salesman prior to July 2, 1954. The exhibit did not contradict any fact to which he had testified concerning his familiarity with the land and its values, and it is not contended that he was not familiar with values at the time he said he was. It is conceded that one need not be a licensed real estate salesman or an “expert” in the ordinarily accepted sense in order to qualify as to opinion of values. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20.

We think it would not have been error to admit the exhibit. It was not prejudicial error to refuse it. Murphy v. Kroger Grocery & Baking Co., Mo.App., 185 S.W.2d 62(8, 9); State ex rel. State Highway Commission v. Cone, Mo., 338 S.W.2d 22, 27; Union Elec. Co. of Mo. v. Simpson, Mo.App., 371 S.W.2d 673.

Appellant’s third contention deals with damages alleged to have accrued because of the cutting of the roots and consequent destruction of a shade tree in front of the residence property.

Under Paragraph 21 of the Petition, Highway took what is denominated a “temporary construction easement for the purpose of building a sidewalk and walk entrance to the highway” and of providing room for men and machinery in doing such construction work. The paragraph asserts that “after construction is completed and the entire project is accepted by the Relator,” the Owners should have full and free possession. The strip so taken was across the front of the residence property, three feet in width during a part of its course and jutting or turning into the residence property a distance of ten feet at one place. Owners filed their general exceptions to the commissioners’ award of damages to the-property described in said Paragraph 21; later, on leave granted by the court, Owners filed their “Amendment to Exceptions” in reference to Paragraph 21, in which they specifically set forth that in the construction therein referred to Plighway cut the roots of a large shade tree, thereby destroying it and rendering it so unstable as to cause it to fall upon the residence. We gather that it fell after the construction had been completed.

It would appear from the evidence the trunk of this tree arose on the front yard, not out of the strip so taken for “construction purposes” but immediately adjacent thereto and apparently in the corner (made by the change of three feet to ten feet). The contractor in performing the work of the improvement dug or made an excavation within the land so taken but immediately adjacent to the trunk of the tree, apparently on two sides thereof, a vertical distance which we do not find stated in the record but which from the appearance of the photographic exhibits would appear to be some two and one-half feet. In making such excavation the roots of the tree at such point were necessarily (as such exhibits show) cut and removed. As a result of such severance the tree was caused to fall over and defendants were, of necessity, required to remove it. Two of Owners’ witnesses testified to a difference of $1,000.00 in before and after value of the residence property. One of Highway’s witnesses testified to no difference. The court allowed a total of $500.00 because of the appropriation set forth in Paragraph 21.

The complaint in this assignment is not as to the amount of such allowance, but Highway contends (a) the court was in error in permitting the defendants to amend their exceptions; and (b) that the damage claimed resulted after the appropriation and “is not chargeable to the condemnor, absent proof of negligence as part of the condemnation.”

As to (a), amendment to the exceptions: No formal or specific pleading as to damages is required of the landowner in making exceptions as to the award of commissioners. All he needs to do is to make his exceptions. Arkansas-Missouri Power Co. v. Hamlin, Mo.App., 288 S.W.2d 14(10); Missouri Power & Light Co. v. Creed, Mo. App., 32 S.W.2d 783. We think the amendment was immaterial and, at all events, was within the discretion of the court.

As to (b), both parties rely upon Kamo Elec. Co-op. v. Baker, 365 Mo. 814, 287 S.W.2d 858, which contains a careful and well-supported discussion of the point raised with' citation of many authorities. As we understand that case, the question of damages is to be determined with reference to the time of appropriation (loc. cit. 861). Where part of a tract is taken, damages are not limited to those which result from mere severance of title but include damages or depreciation in value of the tract as a whole which is caused by the use of the property for the purpose for which the condemnation is made (all italics are ours), and such use includes the construction of the improvement. The recovery is limited to (and should include) such damage, whether present or prospective, which may be known or may reasonably be expected to result from the construction in a lawful and proper manner (loc. cit. 862). The recovery of just compensation is for the result of lawful appropriation and not for tortious acts. Where there is an appropriation of a part of the land, the lawful and proper uses to which it is to be put may be considered if they affect the (value of) remainder of the land at the time of the appropriation; and, referring to the results which “may reasonably be anticipated” the fact that the things did occur may substantiate the claim that they could have been so anticipated.

The questions then are: Was the excavation done lawfully; was the digging (and consequent cutting of roots) a part of the appropriation; and was the destruction of the tree reasonably to be anticipated ? Parenthetically, in regard to this appropriation, while the trunk of the tree stood just beyond the limits of the land actually covered by the description, a part of the tree itself— the roots necessary to support it and sustain its life — was actually within the confines of property appropriated for the construction purpose, and these roots were actually severed; hence in all practical effect the tree itself was taken.

Was the severance of these roots a necessary part of the lawful taking? -We refer to the testimony of Highway’s witness who identified himself as Chief Designer, Missouri State Highway Department, District 8, and one of the designers of the ptoject here involved. He identified the official plans and exhibits delineating cross-sections which showed the difference in elevation from seven to ten inches between the original ground level and the roadway as finally constructed. I'n reference to the exhibits showing the excavation on the residence property in order to build the sidewalk, he testified that they showed “the bottom of our base which you have to grade out for in order to go ahead and build your highway.” The grading out had to be done first to establish the grade. The base is put in and the concrete is put on top of that. In building the sidewalk it was necessary to cut in or down and then build the concrete above it. He said such action would be necessary for whoever, whatever contractor did the work in carrying out the construction plan. Nor is it contended that this grading or digging down in order to reach the level upon which the base was built could have been done without cutting out a substantial part of the tree roots. It would seem to us, therefore, that the excavation or grading out of the land below the previous ground level, and the severance of the tree roots which necessarily accompanied it, was a lawful part of the construction use for which the land was appropriated and not a tortious act but an exercise of the sovereign right of eminent domain, because of which the owners were entitled to just compensation irrespective of whether it be referred to as a “direct taking” or “consequential damage” to the remainder of the tract. It also seems that the loss of the tree was a result obviously to be anticipated from the cutting of the roots.

Appellant’s next complaint is “that the court erred in the judgment rendered for the reason it was excessive, not responsive to the most-credible evidence, and was based on testimony which included non-compensa-ble elements of damage which should have been stricken and withdrawn from the court’s consideration in arriving at the judgment in accord with plaintiff’s objections and motions to strike.”

This assignment follows that set forth in Paragraph 8 of the motion for new trial. We think the assignment is too general, and we are doubtful whether it was sufficient for the motion for new trial. The object of calling attention to matters in the motion for new trial is to give the trial court an opportunity to correct its own errors. Arnold v. Fisher, Mo.App., 359 S.W.2d 602(10); State ex rel. McNutt v. Northup, Mo., 367 S.W.2d 512, 514. While such motion need not set forth the objections or reasons given, it should in all events contain language which calls the trial court’s attention to evidence which forms the basis for the new-trial specification of error. State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo., 375 S.W.2d 92, 95-96.

An assignment of error on appeal should be sufficiently definite to “show what actions or rulings of the Court are sought to he reviewed and wherein and why they are claimed to be erroneous.” State ex rel. State Highway Commission v. Warner, Mo.App., 361 S.W.2d 159, 162. Nevertheless we have attempted to “seine through” Highway’s argument on this point (and indeed the whole transcript) in order to find exactly what is complained of. This argument states that a “pattern of error” is shown by some nine quoted excerpts from the testimony. It would unnecessarily extend the length of this opinion to set them all forth, but since the first two of such excerpts are not long we set them forth to illustrate:

“Question: After and immediately following this taking, could your filling station be used for the purpose for which it was built at all, practical matter?
“Answer: Well, you could have used it but, but for practical purposes, it would not have maintained — it would have been impossible for people to get in. We could serve one car.
“Mr. Powers: I object to that, Your Honor, on the basis that inconvenience of that nature is not an item of damages in this type of case.
“Mr. Miller: I am not relating to the construction. I am saying, after the taking and after the construction.
“The Court: The objection is overruled.
******
“Question: And, after the taking of this five feet in July, and the construction work done there in connection with the construction easement, what had it done to your special purpose filling station—
“Mr. Powers: Your Honor, I object to any mention of any damages resulting from construction.
“Mr. Miller: I am not talking about during the period. I said, after the construction.
“The Court: That’s the way I understood the question. The objection is overruled.”

The argument concludes with the statement that the excerpts show a pattern of admission relative to inconvenience, traffic flow, loss of profits, and injury to business.

From the outset Highway contended that Owners had sustained special benefits from the appropriation and construction in excess of their loss, and the testimony of its witnesses dealt extensively with this. Some of the evidence, especially that in regard to “traffic flow” and convenience or inconvenience of access, concerned the benefit — or lack of benefit — to the premises. We will attempt to deal with that more fully in Highway’s next assignment. The argument concludes by citing Filger v. State Highway Commission, Mo. App., 355 S.W.2d 425, which we believe holds that (1) traffic is an incident of streets and highways and cannot be considered as an element of damage or benefit, and (2) alteration of traffic pattern on an existing right of way which does not materially block reasonable accessibility is not an item of damage. The only other case cited by Highway is St. Louis Housing Authority v. Bainter, Mo., 297 S.W.2d 529, which holds that profits derived from a business are too uncertain and speculative to be considered as a basis for determining fair market value of the property condemned, but gallonage of gasoline sold from a filling station is proper in determining rental value; and rental value is, in turn, a proper aid in determining market value. We conclude that Highway is principally concerned with that evidence which deals with the accessibility of the businesses (filling station and drive-in) and the loss of rental income as indicating the loss or injury to such business as a result of the inconvenience in access. As to the inconvenience and inaccessibility at the filling station, the evidence showed (after the taking) a sharp dip in place of a level driving space and the leaving of (only) a five-foot lane (outside the pump island), a sitúation which made it inconvenient and impracticable for customers to maneuver alongside the pumps. Such inconvenience and accessibility in practical effect destroyed the business of the filling station as it then existed. The Owners then offered evidence to show the cost of grading down and moving back the filling station on the theory of cost of restoration of its use to which the property was adapted. We think this was proper. State ex rel. State Highway Commission v. Bruening, Mo., 326 S.W.2d 305.

As to the drive-in (root beer property) the change effected (in addition to the loss of five feet of ground) was two entrances through curb and gutter instead of a level access along the front and (according to Owner’s evidence) the loss of sufficient car space for use by customers in front of the drive-in. Owners also offered their lease in order to show the rental value. We think there is no question that the rental value of property is of value in determining the market value, and it is proper to consider the leases on the property, the income from such, and the lengths of time they are to continue. City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600, 607. See State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo., 366 S.W.2d 329, 340.

The testimony as to “loss of the business” in these instances was not as to the profits from such businesses but as to the ability of the businesses to continue after the taking and the consequent loss in rental, and therefore it concerned market value. In respect to the drive-in, Owners went further and showed that the business actually “petered out”, the lessees did not continue to pay rent, and the building was eventually moved off. The fact that a person could not continue or pay his rent and the business closed is somewhat speculative as to whether such failure resulted from the appropriation rather than from other causes; but, when taken along with the other evidence and the surrounding circumstances, it had some probative value in bolstering and corroborating the contention that the value of the property (as devoted to the purpose for which it was then adapted) depreciated because it was no longer fit for such purpose.

The final complaint is that the court erred in ruling that the “special benefits” testified to by Highway’s witnesses were “general benefits.” These witnesses testified that Owners’ property received special benefits from (a) construction of curb and guttering (b) improved access, (c) improved drainage, (d) intermittent traffic rather than continuous traffic, and (e) “de-acceleration lanes.” Testimony of Owners’ witnesses was to the exact contrary.

We see no need to enter into any extended discussion as to what are “special benefits” as opposed to those which are “general” to all property in the vicinity; for assuming that all the matters contended by Highway could legally be said to be special benefits, still it was Highway’s burden to prove that they were in fact benefits. We have our doubts as to whether a change of traffic pattern or increase in volume along a previously established highway, as such, can ever be the basis for a claim, either of damages or special benefits; but certainly if traffic flow is claimed as a special benefit it is proper for the owner to show, and the trier of the fact to consider, how such change would interfere with access and prevent patronage from prospective customers. State ex rel. State Highway Commission v. Johnson, Mo., 287 S.W.2d 835.

As to the so-called “de-acceleration lanes,” if we understand what counsel meant by them, they were the outside lanes, a portion of which presumably occupies the five feet (on each side) which was appropriated for permanent use. Referring to Highway’s Petition, we find that it takes for purpose of construction and use a four-lane highway with a two-foot painted median and an eight-foot parking lane on each side. The condemnor has the duty of specifying with reasonable certainty the burden it expects to place on the land. Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, S3 S.W.2d 917. The presumption is that the land taken by the exercise of eminent domain will be used for all purposes which the judgment permits. State ex rel. State Highway Commission v. Johnson, Mo., 287 S.W.2d 835. We must assume that these outer strips will be used for the purpose taken, i. e., parking lanes.

As to “intermittent traffic” rather than “continuous traffic,” one of the Highway’s witnesses based this on a signal light at the corner of Glenstone and Grand. It is unnecessary for us to consider whether the installation of a traffic light on a previously existing street or highway can ever be considered as a “special benefit,” for in this case there was evidence from which the trial court could have found that the traffic light existed prior to the taking with which we are concerned. Aside from that, it is at least an arguable question as to whether a line of cars stopped for a traffic light in front of a corner business devoted to drive-in trade makes the property any more “accessible” or attractive to prospective customers and is, therefore, any benefit.

One of Highway’s witnesses testified that the widening of the highway and construction of two extra lanes for traffic made the property more “accessible” because it spread the traffic and made it so that people could turn (left) across it more easily. On the other hand, Owners’ evidence was to the contrary.

As to curb and gutter. Prior to the taking, the Owners’ property was accessible along its entire length on a level with the ■street. The construction of curb and gutter j limited access to driveways. In case of the filling station especially the construction caused a “dip”. We fail to see how this improved access to this business property.

As to “improved drainage.” There-was no evidence of any drainage problem at the drive-in. At the filling station property the Owners had what they termed an adequate underground drainage system constructed in accordance with (previous) Highway specifications. The present curb and gutter will carry open water in the dip. We agree with the trial court that Highway did not sustain its burden in proving special benefits.

We do not overlook the fact that another lease of the filling station property was made to an oil company and that some time thereafter a new filling station was erected with a more advantageous rental to the Owners. But this (new construction and lease) involved the investment for removal of the old station, grading down and repavement of the lot, and additional land use. Another factor which must necessarily bear some weight is the tremendous growth of the whole outer area of the City of Springfield (not along Glenstone Avenue alone) during the period involved.

Evidence as to these “special benefits” and increase in value came from Highway’s witnesses Dennison and Riebold. These gentlemen had been appraising for Highway for some time with considerable regularity, repletion, and remuneration and were under contract to “support” their appraisals in court. It is quite obvious from the trial court’s findings of fact and conclusions of law that he did not regard the conclusions of these witnesses (that the Owners were better off and specially benefited by the circumstances which took five feet across the front and destroyed the practical value of the business buildings on their property) as being either fair or logical. Neither do we.

We think the amount awarded was within the range of damages established by the evidence. An appellate court will not ordinarily disturb a judgment for damages based on conflicting evidence in a condemnation proceeding where the amount awarded is the subject of conflicting evidence and is within the limits of the proof. Public Water Supply District No. 2 of Jackson County v. Alex Bascom Co., Mo., 370 S.W. 2d 281, 290; Union Elec. Co. of Mo. v. Simpson, Mo.App., 371 S.W.2d 673, 683. The judgment is affirmed.

STONE and HOGAN, JJ., concur.

      . For others applicable to some phases of the discussion, see State ex rel. N. W. Elec. Power Co-op., Inc. v. Waggoner, Mo.App., 319 S.W.2d 930, 937; Union Elec. Co. of Mo. v. Simpson, Mo.App., 371 S.W.2d 673; Union Elec. Co. v. Saale, Mo., 377 S.W.2d 427; Public Water Supply Dist. No. 2 of Jackson County v. Alex Bascom Co., Mo., 370 S.W.2d 281; see Jahr, Eminent Domain, § 167, p. 270.

      . See State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo., 306 S.W.2d 329; State ex rel. State Highway Commission v. McCann, Mo.App., 248 S.W.2d 17; State ex rel. State Highway Commission v. Bailey, 234 Mo.App. 168, 115 S.W.2d 17.


author: HOGAN, Judge.

text:
    Thomas SPENCER, Plaintiff-Respondent, v. Marylou R. SPENCER, Defendant-Appellant.
    No. 8282.
    Springfield Court of Appeals. Missouri.
    Sept. 22, 1964.

      Byron Kearby, Poplar Bluff, for defendant-appellant.
    J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for plaintiff-respondent.’
   HOGAN, Judge.

This is a divorce action. In his petition, the plaintiff sought a divorce upon the basis of general indignities, but conceded custody of the parties’ minor child to the defendant and tendered his willingness to continue supporting the child if a divorce was granted. In her answer and cross bill, the defendant set up certain matters in recrimination, and also set out certain indignities as grounds for divorce from the plaintiff. In addition, the defendant asked for custody of the child, reasonable support for the child, attorney’s fees, and $10,000.00 alimony in gross. After hearing evidence, the trial court has found the plaintiff to be an innocent and injured party and has granted him a divorce. The defendant has been granted custody of the minor child, and plaintiff has been ordered to pay the sum of $100.00 per month as child support. No award of alimony was made. The defendant has appealed, contending generally that the plaintiff has not shown himself to be an innocent and injured party, but that she has, and that the trial court should have granted her the divorce and should have made an award of alimony in gross.

The record on the merits is sparse, and very little appears in the evidence concerning the parties’ background. On the basis of what we can glean from the proofs presented, both plaintiff and defendant appear to be well regarded in the community in which they reside. They were married June 12, 1948, and, except for a period of separation in 1953, they lived together until the middle of August 1962. They are the parents of one minor female child, ten years of age at trial time, whose custody is not in question. The plaintiff, Thomas Spencer, was employed by a local bank and appears to have been in charge of the installment loan department. He had been employed at the bank for more than twenty years and, it seems, was a trusted employee, charged with considerable responsibility. All that is shown about the defendant — of a general nature — is that she was 36 years of age at the time of trial, was conceded by the plaintiff to be a “good moral woman, and a proper person to have custody [of the child].” During the first “year and a half” of her marriage, Mrs. Spencer had worked for a local insurance firm, contributing her earnings toward the maintenance of her home. Each party conceded the other’s good moral character.

The plaintiff’s evidence is centered around one episode which, we take it, occurred a short time before the parties finally separated. Concisely put, Mr. Spencer testified that Mrs. Spencer, having told him that she no longer cared for him and no longer desired to live with him, locked him out of the house in which they resided. On seven different occasions, Mr. Spencer testified, at times ranging from 8:00 P.M. to midnight, he was locked out of his residence. That, together with the statement that he was “treated coldly and indifferently, and the marriage lacked the warmth that you would expect out of the marriage,” represents the sum and substance of the plaintiff’s testimony. His whole case, we may add, consisted of his own testimony.

Certain other facts may be inferred from the defendant’s testimony, though we must in frankness say her evidence was likewise concise to the point of being cryptic. Drawing such inferences as we think we reasonably may, however, we conclude from Mrs. Spencer’s testimony that the parties had been separated for a period of about eight months in 1953, and that at the end of that time they became reconciled — Mr. Spencer gave the date as Thanksgiving 1953 — and built a home of their own in Poplar Bluff. Since the reconciliation, the defendant stated, the plaintiff had “treated me more or less like he would a housekeeper. He would come in when he wanted to and he would leave when he wanted to. * * * Most of the time when he talked to me, it was to cuss me out or bawl me out, and if I tried to talk to him he would say, quit your bitching, or he would slam the door and walk out.” The defendant’s evidence was that Mr. Spencer was very niggardly with her; although he made a salary of $150.00 to $200.00 per week, or at least she “figured that,” he allowed her only $30.00 per week for such necessary items as groceries and clothing, and occasionally, “usually at Christmas time,” Mr. Spencer would give her “twenty-five or fifty dollars.” Because of his irregular habits, and his lack of physical attention, Mrs. Spencer believed her husband had been associating with other women.

Though, as we have indicated, the real source of the parties’ difficulties is veiled, upon the record presented, at least a part of their difficulty seems to have arisen when they moved into a home constructed for them by Mrs. Spencer’s mother, Mrs. Reece. We take it from the record that some three years before the parties were finally separated the defendant’s parents came to pay a short visit with Mr. and Mrs. Spencer. Mr. Reece was then ill and, a short time thereafter, died. “By mutual agreement,” Mrs. Reece came to live with her daughter and son-in-law. Some time after that, again “by mutual agreement,” Mrs. Reece constructed a more elaborate home, with the understanding that she would retain title to the home and pay the taxes, and Mr. Spencer would pay the utilities. Mrs. Reece was provided with separate quarters. Mrs. Spencer and Mrs. Reece “worked together” in running the house, and they “consulted Tom [Mr. Spencer] about it at times.”

After they moved into this new house, according to Mrs. Spencer, her husband’s irregular habits, incivility and lack of affection began to affect her health adversely. On several occasions, she found lipstick on her husband’s shirt collars and “because of his sex life at home,” she believed “he would have to be out with someone else.” Mrs. Reece also suspected her son-in-law and called the defendant’s attention to the fact that when she did the washing she found the fly of Mr. Spencer’s shorts was sometimes washed out. Both Mrs. Spencer and Mrs. Reece were upset by the plaintiff’s irregular habits. Mrs. Spencer was “becoming nervous and a nervous wreck, and * * * got so [she] couldn’t sleep at night, waiting for him [plaintiff] to come in. * * *” Mr. Spencer “was making a wreck” of Mrs. Reece. As a consequence, and we take it after consultation with Mrs. Reece, Mrs. Spencer informed her husband that “if he wasn’t in by midnight I would put the chain on the door, so that he couldn’t come in.” Mrs. Spencer then “kept on [locking the door] until the week went by, and I finally decided he wasn’t going to leave anyway, and so I went to talk to a lawyer about a divorce, and then he [plaintiff] moved out.”

The appellant argues that the plaintiff failed to sustain his burden of proof because his evidence did not actually establish conduct on the defendant’s part amounting to indignities within the meaning of the statute, and that the plaintiff has not shown himself to be an innocent and injured party. Rather, the defendant maintains the evidence establishes clearly that she is the innocent and injured party and that she should be awarded the divorce.

In connection with her point that the plaintiff’s proof is insufficient, the defendant contends that the plaintiff failed to Show such indignities within the meaning of Section 4S2.010, V.A.M.S., as constitute grounds for a divorce, in that the plaintiff failed to establish a course of conduct on the defendant’s part amounting to a species of mental cruelty. In a sense, it is true, the principal acts or indignities relied on by the plaintiff here .did constitute but a single episode extending over a period of a week prior to the. parties’ final separation. It is also true that indignities such as to warrant the granting of a divorce ordinarily must amount to a continuous course of conduct, and single or occasional acts will not suffice. Moore v. Moore, Mo.App., 337 S.W.2d 781, 786-787 [2-8] ; Clark v. Clark, Mo.App., 306 S.W.2d 641, 646 [3]. Even so, we reject the idea that there is a precise interval over which a course of conduct must extend to develop into indignities. The usual statement is that the acts relied on must be “of such character and frequency as to be subversive of the family relation,” Moore v. Moore, supra, 337 S.W.2d at 786-787 [2-8]; Clark v. Clark, supra, 306 S.W.2d at 646; Thomas v. Thomas, Mo.App., 288 S.W.2d 689, 696 [4-6], cert. den. 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77; but in determining whether the offending party’s actions have persisted over a sufficient interval to amount to a “course of conduct” so as to constitute indignities, we must bear in mind that by design, the statutory word “indignities” is indefinite, leaving each case to be determined according to its own peculiar circumstances. Hooper v. Hooper, 19 Mo. 355, 357; Clemens v. Clemens, Mo., 235 S.W.2d 342, 346.

In reviewing cases of this nature to determine the sufficiency of the evidence to support the judgment, we of course review the case upon both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, but the judgment should be set aside only if it is clearly erroneous. Rule 73.01(d), V.A.M.R. We do have the duty to- evaluate the evidence for ourselves, Clark v. Qark, supra, 306 S.W.2d at 646, but it is also clear that when the result depends upon the perception of nuances and the resolution of conflicts in the evidence, we must depend in large measure upon the trial court. Mitchell v. Mitchell, Mo.App., 319 S.W.2d 906, 908 [1] ; White v. White, Mo.App., 290 S.W.2d 178, 180-181 [1]; Eikermann v. Eikermann, Mo.App., 283 S.W.2d 391, 394 [1, 2], So far as the law is concerned, we find no particular series of cases in our jurisdiction dealing with exclusion of one spouse from the home as an indignity, though it has been suggested that such conduct might amount to desertion. Sutermeister v. Sutermeister, Mo.App., 209 S.W. 955, 956 [1]. Usually, the intentional and unjustified exclusion of one spouse from the home by the other is discussed as being a species of desertion, constructive desertion or abandonment. Anno., 19 A.L.R.2d 1428, 1462, Section 15; 1 Nelson, Divorce and Annulment, Section 4.14, pp. 92-98 (2d ed. 1945). While we do not mean to say that we accept the doctrine of constructive desertion or abandonment, and we do not confuse desertion with indignities as a statutory ground for divorce, we have no hesitation in saying that if one spouse excludes or locks the other out of their home without justification and with the intent to bring cohabitation to an end, such conduct is “subversive of the family relationship,” Stumpf v. Stumpf, 228 Md. 350, 179 A.2d 893, 896 [2, 3]; Mackiewicz v. Mackiewicz, 109 N.J.Eq. 223, 156 A. 665; Heimovitz v. Heimovitz, 161 Pa.Super. 522, 55 A.2d 575, 576 [1-3], and, taken with other circumstances, may amount to the commission of such indignities as would warrant the granting of a divorce. Cf. Cannon v. Cannon, 17 Mo.App. 390, 393.

In this particular case, we consider the evidence sufficient to support a finding that the defendant was guilty of such misconduct as to warrant the granting of a divorce to the plaintiff. While the plaintiff’s evidence was very starkly and tersely presented, and his statement that the marriage “lacked the warmth that you would expect * * * ” is practically lacking in probative force, Moore v. Moore, supra, 337 S.W.2d at 783 [1], still, he did testify that shortly prior to the parties’ final separation the defendant told him she no longer loved him and no longer cared to live with him. The defendant then locked him out of their home for seven consecutive nights. We believe the evidence justifies the conclusion that the defendant meant to bring cohabitation to an end, because when she was asked what caused the separation, she answered, “that is when I started putting the chain on the door at midnight, and he kept on until the week went by, and I finally decided he zvasn’t going to leave anyway, and so I went to talk to a lawyer about a divorce, and then he moved out.” (Emphasis supplied.) We also consider it reasonable to say that the defendant’s suspicion of the plaintiff’s infidelity was largely unjustified. The defendant’s reason, basically, for believing her husband to be unfaithful was “because of his sex life at home. He would have had to be out with someone else.” The defendant tolerated and discussed, if she did not participate in, her mother’s inspection of the plaintiff’s underwear for seminal stains to determine whether her suspicion of infidelity was justified. Though the evidence does not force any such conclusion, it might be inferred, we think, that he was required to move into quarters provided for and managed by the defendant’s mother, and that as far as management of his home was concerned he was only consulted “at times.” Though the evidence is possibly susceptible to varying constructions, we perceive no clear error in the trial court’s conclusion that the plaintiff had been subjected to indignities sufficient to warrant granting a divorce.

The defendant further contends that the plaintiff has not shown himself to be an innocent and injured party, so as to be entitled to a divorce. We agree that one seeking a divorce must prove himself to be both an innocent and injured party, even though the statute pertaining to contested cases (Section 452.010, V.A.M.S.) speaks only of “the injured party.” Franklin v. Franklin, 365 Mo. 442, 446, 283 S.W.2d 483,. 485-486 [6-8]; Simon v. Simon, Mo., 248 S.W.2d 560, 562 [1] ; Hoffman v. Hoffman,, 43 Mo. 547, 549. However, this does not mean that the prevailing party must prove freedom from all fault; rather, he is only required to show, that in the circumstances of the case, he himself has not been guilty of misconduct constituting a ground or grounds for divorce. Simon v. Simon, supra, 248 S.W.2d at 563 [2, 3] ; Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, 18 [2], The record is susceptible to the construction that while the plaintiff was at times incivil, inattentive and irregular in his habits, he nevertheless was industrious and a good provider. The trial court apparently considered, and we consider, that the defendant’s recriminatory accusations against him were unconvincing, and again we perceive no clear error in the conclusion that he is the innocent and injured party.

The defendant, as a final point, contends that an award of alimony in gross in the sum of $10,000.00 should have been made to her. A great deal of the record, as a matter of fact, is taken up by evidence relating to the plaintiff’s financial condition. In sum, the record evidence indicates that at the time of trial he was employed at a salary of $650.00 per month, of which $483.36 was “take-home” pay. He had assets, mostly jointly owned with the defendant, of $19,-646.32, and liabilities of approximately $9,~ 410.01. We may say, parenthetically, that the plaintiff tendered his willingness to> divide his net assets with the defendant. He also tendered his willingness to continue supporting his minor child, and has been ordered to do so.

However that may be, the defendant’s point, in the circumstances of the case, is not well taken. The term “alimony,” properly and strictly speaking, means an allowance made by the court to the divorced wife herself, Marley v. Marley, 356 Mo. 870, 874, 204 S.W.2d 261, 263-264 [2, 3] ; Sisco v. Sisco, Mo.App., 339 S.W.2d 283, 285 [1], and, though the authorities are not entirely in harmony, is generally regarded as an allowance in the nature of an award of damages because of the husband’s breach of the marriage contract. Smith v. Smith, 350 Mo. 104, 108-109, 164 S.W.2d 921, 923-924 [5]; Nelson v. Nelson, 282 Mo. 412, 421-422, 221 S.W. 1066, 1069. An award of alimony may not be made where the divorce was granted because of the wife’s fault, Section 452.080, V.A.M.S.; Willis v. Willis, Mo.App., 274 S.W.2d 621, 629 [19, 20], and it follows that an award was properly denied here.

The judgment is affirmed.

RUARK, P. J., and STONE, J., concur.