author: BILLINGS, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. JOE D. ESTHER, INC., Defendant-Respondent. STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. JOE D. ESTHER, INC., Defendant-Appellant.
    Nos. 10672, 10679.
    Missouri Court of Appeals, Southern District, En Banc.
    Feb. 28, 1979.
    Rehearing Denied March 19, 1979.
    Bruce A. Ring, Chief Counsel, Jefferson City, George M. Johnson, William T. Powers, Jr., Asst. Counsel, Springfield, for plaintiff-appellant-respondent.
    David Donnelly, Donnelly, Baldwin &. Wilhite, Lebanon, for defendant-respondent-appellant.
   BILLINGS, Judge.

Condemnation proceeding by the State Highway Commission and counterclaim by defendant for a mandatory injunction. The counterclaim was first tried by the court and relief denied. Trial by jury of the exceptions of the parties resulted in an award of $10,000 damages to defendant for the taking of an access and two drainage easements. Both parties appealed, defendant contending the court should have granted the requested injunctive relief and plaintiff claiming the court erred in denying a proposed amendment to its condemnation petition. We affirm as to the counterclaim and reverse and remand for a new trial on the issue of damages.

The condemnation petition was filed in 1972 in connection with the construction of Interstate Highway 44 in Laclede County. The petition sought to condemn the defendant’s “rights of direct access to, from, and across Route I — 44 or its right-of-way, from defendant[’s] abutting land . . . ” and two drainage easements on defendant’s land.

Commissioners were appointed and their report fixed defendant’s damages at $5,270. Both parties filed exceptions to the commissioners’ report and thereafter defendant filed its counterclaim seeking to compel plaintiff to construct and maintain an outer roadway along the north side of its property-

At the bench trial of the counterclaim, the evidence was that Warren and Judy Dean were the former owners of lands which now lie both north and south of 1-44. In 1955 old Highway 66 ran along the southern boundary of the Dean property and in that year plaintiff initiated proceedings to acquire right-of-way for a new two-lane highway which would be located north of the old highway and across the Deans’ land. The new highway was to be used for westbound traffic on Route 66 and the old highway was to be used for eastbound traffic.

In 1955 the Deans conveyed to plaintiff an easement for new Highway 66. The deed also conveyed the Deans’ “abutters’ rights of direct access between the highway, now known as U. S. Route 66, and Grantors’ abutting land . . .; except that there is reserved arid excepted to grantors, their heirs and assigns, the usual right of direct access (1) to any adjacent outer-roadway if, and while it may be maintained by proper authority in front of said land, and (2) along it to and from the nearest lane of the thruway or public highway.” The deed also contained the following: “This conveyance is made upon the condition and understanding that the State will construct and maintain such an adjacent outer-roadway fronting on Grantors’ land from Station 1400 + 55 to Station 1406 + 85.”

The evidence was undisputed that after the 1955 Dean deed the plaintiff did construct and maintain an outer roadway between the new highway and the northern portion of the Dean land. A thruway or cross-over was constructed at the west end of the outer roadway which crossed the highway and permitted an entrance to the southern portion of the Dean land.

Defendant purchased the south portion of what we have referred to as the Dean land from other grantors in 1967. At that time this tract of land was bounded by new Highway 66 on the north and old Highway 66 on the south. Bear Creek runs east and west through this tract of land and the upland portion, that lying between the creek and the new highway, was more suitable for defendant’s cattle operation. Until this condemnation suit, defendant had access to the upland from new Highway 66 by way of the entrance at the south end of the thruway or cross-over. This suit sought to acquire this access, together with the two drainage easements.

It was defendant’s theory, under its counterclaim, that the Dean deed required the plaintiff to construct and maintain an outer roadway between 1-44 and the north boundary of defendant’s land so that it could continue to have access to the upland from the north. In denying equitable relief and dismissing the counterclaim, the court, inter alia, found and determined that plaintiff had constructed and maintained an outer roadway pursuant to the terms of the Dean deed; that defendant’s rights as successor in title from the Deans were subject to eminent domain proceedings by plaintiff; and that defendant had an adequate remedy by way of damages.

We agree with the action taken by the trial court in dismissing defendant’s counterclaim. In State ex rel. State Highway Commission v. Hammel, 372 S.W.2d 852 (Mo.1963), the trial court dismissed the landowner’s counterclaim which sought specific performance of an alleged agreement by the commission to construct an overpass and streets necessary for ingress and egress to the landowner’s property. In affirming the lower court’s ruling, our Supreme Court said at 853-854: “In Handlan-Buck Co. v. State Highway Commission, Mo., 315 S.W.2d 219, appellant contended that it was the third-party beneficiary of a contract between the Highway Commission and the City of St. Louis under the provisions of which the commission agreed not to vacate and close Poplar Street at Third. This court there pointed out that State ex rel. State Highway Commission v. James, 356 Mo. 1161, 205 S.W.2d 534, had held that the commission ‘had the authority to condemn or extinguish the right of an abutting owner to access to a state highway,’ and that the constitutional provision authorizing the commission to do so ‘where the public interest and safety may require is a grant of police power’ and, consequently, the commission’s authority to construct a limited access highway over Third Street and to close Poplar Street was within the state’s police power and that if the closing of Poplar was in the public interest and for the safety of the public, the commission’s authority to so act could not be limited, curtailed or destroyed by a contract it may have made with the city.” The court held that to require the commission to construct a certain overpass and service roads at a particular location would “impinge upon” the commission’s authority to limit access.

The Hammel case is decisive of defendant’s appeal. Under the principles set forth therein the counterclaim failed to state a claim upon which relief could be granted and was properly dismissed.

During the course of the hearing on the counterclaim, plaintiff introduced in evidence the plans for the 1955 highway project and unsuccessfully attempted to elicit testimony from the designer of the 1972 highway project that he had made a mistake in the preparation of the 1972 plans; that the 1955 plans reflected a temporary entrance, not a permanent entrance, to the north side of the land owned by defendant; and, defendant did not have access rights. Defendant’s objections to this line of testimony and offers of proof by plaintiff were sustained.

Prior to the trial of the parties’ exceptions, plaintiff sought to amend its petition in condemnation by removing therefrom the allegation concerning defendant’s access rights, averring that all rights of direct access and the rights to an entrance had been acquired by deed from the Deans in 1955. On the morning of trial the court overruled plaintiff’s request to amend the petition and struck the proposed amendment. Plaintiff’s motion for a continuance was denied. Plaintiff’s offer of proof that the 1972 highway plan was in error, that the 1955 plan showed the entrance to be temporary, and that plaintiff had acquired the subject access by virtue of the 1955 Dean deed was, on defendant’s objections, also denied. Trial proceeded.

Plaintiff’s appeal presents the issue of whether or not it was entitled to amend its petition in condemnation, even on the day of trial, so as to take fewer rights and reduce the ultimate damages to the defendant. We are of the opinion that plaintiff should have been afforded the opportunity to show that it had made a mistake in seeking to condemn an access which it claimed it had already acquired. The Western District considered a similar question in Jackson County v. Hall, 558 S.W.2d 791 (Mo.App.1977), and in ruling the trial court erred in denying an amendment to a condemnation petition said at 793: “ . [Djelay in amending a petition to condemn less than therein set forth is not to be encouraged. Nevertheless, the Clark case [St. Louis, K. & N. W. Ry Co. v. Clark, 121 Mo. 169, 25 S.W. 192 (banc 1893), rev’d on other grounds, 121 Mo. 169, 25 S.W. 906 (banc 1894)], supra, and others, hold that a petition may be amended to reduce the extent of taking at the trial, and that it is an abuse of discretion for the trial court to refuse the amendment.”

If in fact plaintiff had acquired the access rights described in the petition by the Dean deed, a matter on which we presently voice no opinion because of the state of the record presented, then what was said in State ex rel. State Highway Commission v. DeMarco, 422 S.W.2d 644 (Mo.1968), at 649 is applicable: “The fact an error was made does not within itself justify the unjust enrichment of a party thought to be the owner of lands previously acquired by the state.”

The trial court’s denial of the proposed amendment calls for reversal and remand for new trial. State ex rel. State Highway Commission v. Wright, 312 S.W.2d 70 (Mo.1958); State ex rel. State Highway Commission v. Stotko, 365 S.W.2d 64 (Mo.App.1963); Union Electric Co. v. Levin, 304 S.W.2d 478 (Mo.App.1957).

It is so ordered.

All concur.

      , The 1972 highway project was for the construction of a new two-lane highway which would carry eastbound traffic and run parallel to the 1955 construction.


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    Louis Edward DeCLUE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40382.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 13, 1979.
    Robert L. Carr, Potosi, for movant-appel-lant.
    Paul Robert Otto, John M. Morris, III, Richard Thurman, Asst. Attys. Gen., Jefferson City, Albert G. Tindall, Washington County Pros. Atty., Potosi, for respondent.
   REINHARD, Presiding Judge.

Movant appeals the circuit court’s denial, without an evidentiary hearing, of his Rule 27.26 motion. Previously, movant sustained a jury conviction for the statutory rape of a 10 year old female and was sentenced to ten years confinement. He did not appeal the conviction. On appeal from the denial of his 27.26 motion he contends the court erred in denying him an evidentiary hearing. As ground for relief his motion alleged,

[M]y conviction and sentence resulted from and are grounded upon the false testimony of the alleged victim and witness to the alleged crime ... in that she falsely testified at my trial that I had sexual intercourse with her and assaulted her and/or raped her. Facts supporting this came to my knowledge and arose after my trial and after the time for a new trial. .

Movant further alleged that the charges against him were based solely and chiefly on the testimony of the victim and that this victim, “had since my trial made a statement sworn to by her admitting that her before trial statements and trial testimony were false, that she made them out of fear of being beaten by her natural father; and because she did not like me as her stepfather, and because the prosecuting attorney helped her with her trial testimony and told her how to testify at the trial.” (Emphasis added). He named as his witnesses the victim and four others stating that other evidence would consist of the “sworn, recorded and transcribed statement of the victim.”

The state filed its motion to dismiss contending that neither a Rule 27.26 motion nor a writ of error coram nobis will lie if grounded on newly discovered evidence. The circuit court, agreeing with the state’s theory, granted the state’s motion to dismiss thereby denying movant the relief he sought.

On appeal, the state cites Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975) in support of the proposition that newly discovered evidence is improper justification to sustain a Rule 27.26 motion. We agree that such is the law in Missouri but find it unnecessary to address ourselves to the multitude of cases supporting this principle. Allegations claiming the conviction is based upon perjured testimony which defendant contends was known to the state are controlled by a different standard.

The determination of movant’s cause falls within the purview of Voegtlin v. State, 546 S.W.2d 40 (Mo.App.1977) wherein Judge Dowd stated,

[I]n order to show perjury entitling him to post-conviction relief, the appellant must prove that the witnesses’ trial testimony was false and that the prosecution used the testimony knowing it to be false and that the conviction was obtained because of the perjured testimony. Williams v. State, 536 S.W.2d 190, 193[7] (Mo.App.1976); Duncan v. State, 520 S.W.2d 123, 124[1] (Mo.App.1975). Mere inconsistency of [sic] variance in the testimony does not constitute perjury; and in the absence of showing perjury, the trial court has no obligation in post conviction proceedings to order an evidentiary hearing to review evidence given at trial. [Citations of authority omitted] 546 S.W.2d 40, at 41.

Obviously, the testimony of the pros-ecutrix is both vital and material to the successful prosecution of a rape case. We believe movant’s motion alleged that the trial testimony of the prosecutrix was false and, by a broad interpretation of his motion, that the prosecution was aware of this fact. This was sufficient to entitle movant to an evidentiary hearing.

Now, should the prosecutrix testify at the evidentiary hearing as claimed by movant, the trial court will be free to weigh her present testimony against her original trial testimony and thereby determine whether or not she lied at movant’s trial. In this connection see Thomas v. State, 512 S.W.2d 116 (Mo. banc 1974) wherein a witness named Brown changed his testimony and stated that defendant was not a participant in the crime and that he would so testify at a new trial. The court ultimately found Brown not to be a credible witness and denied the defendant relief, but the court made this determination on the basis of testimony presented at an evidentiary hearing.

Herein, movant has alleged sufficient facts to justify an evidentiary hearing. The judgment of the trial court dismissing this Rule 27.26 motion is reversed and the cause remanded for an evidentiary hearing.

GUNN and CRIST, JJ., concur.


text:
    STIX AND CO., INC., Plaintiff-Appellant, v. Robert E. SCHOOR, Defendant-Respondent.
    No. 39968.
    Missouri Court of Appeals, Eastern District, District Three.
    March 13, 1979.
    Theodore D. Ponfil, Bruce M. Wurmser, Blumenfeld, Kalishman, Marx, Tureen & Paster, Clayton, for plaintiff-appellant.
    Bruce P. Robert, Clayton, for defendant-respondent.
   REINHARD, Presiding Judge.

Plaintiff, Stix and Company, Inc., a Missouri corporation engaged in the securities industry, appeals from an order of the circuit court of the City of St. Louis affirming an arbitration award in favor of defendant, Robert E. Schoor.

As part of a total merger agreement, pursuant to which the brokerage firm of Rosenthal, Schoor, Ruppert and Sauer, Inc. (RSRS) was merged into plaintiff Stix and Co., defendant Robert Schoor, a principal and shareholder in RSRS, entered into an employment agreement with plaintiff. Under the terms of the employment agreement, plaintiff agreed to employ defendant as a registered representative and vice-president. The agreement further provided that Stix would pay defendant the difference between $40,000 and the amount defendant would receive in the redemption of his stock and subordinated debentures in RSRS, payment to be made after closing. According to defendant, after closing this difference amounted to $11,872.32; according to plaintiff, the proper figure was $11,-495.20. The parties considered this payment to be defendant’s commission bonus account.

To insure recovery by Stix and Co. of the amount it was to pay pursuant to the bonus agreement, the parties also agreed that Schoor would place in escrow $25,000 in stock. Stix then promised to credit against the $11,872.32 (or $11,495.20) bonus a figure equalling 25% of the gross commissions generated by defendant through his own efforts or the efforts of any broker hired by Stix upon defendant’s recommendation. When the credits equalled the amount of the bonus the stock was to be released.

After the reduction of the bonus account to zero, defendant requested the bonus amount allegedly owed him, but due to disagreements between the parties, Stix did not pay. On May 7, 1974, when defendant and plaintiff ended their employment relationship, defendant again requested the money and plaintiff again refused to pay, claiming entitlement to various set-offs and counterclaims.

On August 9, 1977, the parties agreed to submit their dispute to arbitration, in accordance with the provisions contained in the Code of Arbitration Procedure of the National Association of Securities Dealers, Inc. (NASD), of which plaintiff was a member. In their submission agreement the parties expressly submitted to arbitration “ . . . the present matter and controversy and each of the matters set forth in the annexed statement of the parties hereto, . . . whether such be denominated as claims, answers, defenses and/or counterclaims as such relate to and are embodied in this Submission Agreement.” The parties separately filed their respective portions of the submission in which they stated their positions as to the disputed issues being submitted to the arbitrators.

In his claim presented to the arbitration panel, defendant alleged his entitlement to $11,872.32 under the “bonus account” agreed upon between the parties. Plaintiff’s response petition as submitted to the arbitrators comprised three assertions. The first admitted a bonus account held for Mr. Schoor, but in the amount of $11,495.20 rather than $11,872.32. Plaintiff’s second assertion generated the issue of whether plaintiff could deduct from defendant’s bonus account a figure representing a loss incurred by plaintiff from the purchase and sale of R. B. Jones and Company stock at defendant’s instigation. The claim based on this transaction amounted to $2,467.19. As its final issue submitted to the Board for resolution, plaintiff asked the Board to decide whether it might withhold payment of defendant’s bonus until the resolution of a pending lawsuit concerning a transaction in Arboreal stock, which might result in defendant’s further liability to plaintiff. This last contention allegedly involved a potential liability of $25,000 or more.

After a hearing on the issues submitted, the panel of arbitrators issued its decision, dated May 16, 1975. The decision read in part:

And, having heard and considered the proofs of the parties [we] have decided and determined that in full and final settlement of the above-captioned matter we hereby award claimant the sum of Eleven Thousand Four Hundred Ninety-Five Dollars and Twenty Cents ($11,-495.20), by virtue of the provisions in the bonus agreement contained in claimant’s employment contract with the respondent. We expressly have not decided or reached any other questions respecting claimant’s employment with the respondent and, accordingly, leave the parties without prejudice to pursue any other rights, actions or proceedings arising out of or in connection with such employment.

Plaintiff filed a petition for review by the circuit court in equity alleging that the award was defective because it failed to rule on all the issues submitted to it, and therefore was not a mutual, final and definite award as required by law. After a hearing the circuit court issued a judgment affirming the award which stated that the arbitration panel had considered all the issues presented to it and that the panel’s decision was “a definite, final and complete decision on the merits with regard to all matters duly submitted for their consideration by the parties.” Plaintiff then brought this appeal.

As its sole point on appeal, plaintiff finds error in the trial court’s affirmance of the award, contending that the arbitrators failed to determine all the matters submitted to them and that therefore the award was not a final and definite award on the subject matter submitted to them.

A general rule relating to arbitration awards requires that arbitrators consider and rule on all issues properly submitted to them. Under the same general requirement, an award which is not full and final on all issues submitted is invalid. This finality should be. such as to preclude the necessity of subsequent litigation on those issues covered. Pitman v. Irby, 181 S.W. 590 (Mo.App.1916). See § 435.100 RSMo 1969. See also the cases collected at 36 A.L.R.3d 649. An award which fails to meet these well-recognized principles should be vacated on review. After careful and repeated readings of the decision of the arbitrators, we conclude that the award was not a final decision as to all issues submitted.

The submission agreement presented the arbitrators with three issues: the proper amount owed defendant from his bonus account; plaintiff’s right to deduct from defendant’s account money allegedly owed as a result of the R. B. Jones stock transaction; and the alleged right of plaintiff to withhold any payment to defendant until resolution of a pending suit involving potential liability of defendant to plaintiff. The decision of the arbitrators expressly awarded defendant $11,495.20 “by virtue of the provisions in the bonus agreement contained in claimant’s employment contract with the respondent.”

In interpreting the language of the award, we recognize that arbitrations are favored by the courts and that in this light, every reasonable intendment is indulged in favor of an arbitration award. However, it must not be forgotten that the approval given these awards is based on the recognized objective of obtaining such a settlement as will put an end to the dispute and conclude the matters submitted. Masonic Temple Association of St. Louis v. Farrar, 422 S.W.2d 95, 107, 109 (Mo.App.1967). Giving the award every reasonable intendment, defendant would have us conclude that in awarding $11,495.20 to defendant, the arbitrators impliedly decided against plaintiff’s claim as to the R. B. Jones stock and against the plaintiff’s claim of right to withhold payment pending resolution of the Arboreal stock matter.

However, we can only interpret the award as an express statement that the arbitrators had considered only the bonus account and at best had not decided the R. B. Jones stock issue. We can see no other reasonable intendment or purpose in the arbitrators’ statement that “[w]e expressly have not decided or reached any other questions respecting claimant’s employment with the respondent and, accordingly, leave the parties without prejudice to pursue any other rights, actions or proceedings arising out of or in connection with such employment.” Rather than concluding and binding the parties on all issues submitted, the award seems to refer some issues to the courts. This is not the purpose of arbitration. No reasons exist to interpret this final statement as referring to claims not submitted to the arbitrators. Nor would we want to hold that this award precludes plaintiff from seeking recovery from defendant on the R. B. Jones stock claim, which would be the effect of affirming this award.

Because the award failed to dispose of all issues properly submitted, we hereby reverse and remand to the circuit court with directions to vacate the award and order the matter resubmitted to arbitration for resolution of the undecided issues. Pope Const. Co. v. State Highway Commission, 337 Mo. 30, 84 S.W.2d 920, 921 (Mo.1935); LaVale Plaza, Inc. v. R. S. Noonan, Inc., 378 F.2d 569, 573 (3rd Cir. 1967). Reversed and remanded.

GUNN and CRIST, JJ., concur.


text:
    Robert C. CONLEY and Dorothy P. Conley, Appellants, v. LAKE ST. LOUIS ESTATES CO., and John A. Blumenfeld, Respondents.
    No. 40056.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 13, 1979.

      George J. Bagot, Maniscalco, Clancy, Pittman & Bagot, Clayton, for appellants.
    Philip G. Kaplan, Clayton, for respondents.
   REINHARD, Presiding Judge.

Plaintiffs Robert C. Conley and Dorothy P. Conley appeal from an order of the circuit court granting the motion for summary judgment of defendants Lake St. Louis Estates Company and John A. Blumenfeld.

On May 30, 1974, plaintiffs filed a two count petition in the circuit court. In count one of that petition, plaintiffs alleged breach of contract and breach of the terms of warranty deeds relating to two lots of property in St. Charles County. Pursuant to count one plaintiffs claimed a loss of down payment and expected profit in the amount of $30,000. In count two, which named Lake St. Louis Estates and John Blumenfeld as defendants, plaintiffs sought an injunction against foreclosure of plaintiffs’ lots in St. Charles County.

Lake St. Louis Estates Co. filed a petition in August of 1974 for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. On September 27, 1974, defendants filed a memorandum with the circuit court suggesting that Lake St. Louis Estates had filed a petition for an arrangement under Chapter XI of the Federal Bankruptcy Act, said memorandum also directing the court’s attention to United States Supreme Court Rule 11 — 44, which operated to stay any actions against the defendants. A copy of this memorandum was also sent to plaintiffs’ attorney.

Under the bankruptcy procedures, the last day for filing claims in the Chapter XI proceedings was April 15, 1975, which also was the day on which Lake St. Louis Estate Company’s plan of arrangement was confirmed by the Bankruptcy Court. Plaintiffs filed no claims in the bankruptcy proceeding. October 15, 1975, represented the last day for filing objections to discharge of defendant Lake St. Louis Estates in the Chapter XI proceedings; again, the day passed without plaintiffs’ filing any objections to the discharge.

On June 27, 1977, defendants filed a request for admissions to be answered by plaintiffs. In response to these requests, plaintiffs admitted that defendant had filed an action under Chapter XI of the Bankruptcy Act, that plaintiffs had filed no claims "prior to the stated deadline, and that plaintiffs had filed no timely objections to the discharge of defendant Lake St. Louis Estates pursuant to the Chapter XI proceeding.

On July 26, 1977, defendants filed a motion for summary judgment asserting that plaintiffs had admitted that their claim was discharged by virtue of the proceedings under Chapter XI of the Bankruptcy Act. Plaintiffs made no response to defendants’ motion for summary judgment, and on October 25, 1977, the court granted' defendants’ motion. This appeal followed.

The granting of a summary judgment is appropriate only when it is made manifest by the pleadings, depositions, and admissions on file, as well as any affidavits, that there is no genuine issue of material fact. Rule 74.04(c); Edwards v. Heidelbaugh, 574 S.W.2d 25, 27 (Mo.App.1978). Furthermore, in ruling on a motion for summary judgment, trial and appellate courts must scrutinize the record in the light most favorable to the parties against whom the motion was filed and the judgment rendered, and to accord such parties the benefit of every doubt. Edwards v. Heidelbaugh, 574 S.W.2d at 26-27.

Plaintiffs allege that the trial court erred in granting summary judgment because the defendants failed to contend or prove that they scheduled plaintiffs as creditors in their bankruptcy proceeding. In support of this contention, plaintiffs cite Section 17 of the Bankruptcy Act, 11 U.S.C. § 35(a)(3), which provides:

(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as .
(3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. (Emphasis added)

Under this provision the issue is not, as plaintiffs would suggest, simply whether the plaintiffs were scheduled creditors in defendant’s bankruptcy proceeding, because the debt would also be subject to the discharge if the creditor had either notice or actual knowledge of the proceedings in bankruptcy.

The record on review, and as it stood before the trial court considering the motion for summary judgment, comprises in part plaintiffs’ admission that defendants had filed a petition for bankruptcy in August of 1974, and that plaintiffs had failed to file either claims before the April 15, 1975 deadline or objections to discharge pri- or to the October 15, 1975 deadline. Furthermore, the record contains a memorandum filed with the circuit court on September 27, 1974, a full six and one-half months prior to the April 15 deadline for filing claims, suggesting to the court that Lake St. Louis Estates had filed a petition under the Bankruptcy Act. As noted, a copy of this memorandum was sent to plaintiffs’ attorney.

We find that the notice provided plaintiffs’ attorney, who was at that time acting in the course of his employment by plaintiffs, was notice to plaintiffs in satisfaction of the requirements of Section 17(a)(3) of the Bankruptcy Act, 11 U.S.C. § 35(a)(3). See Linsenmeyer v. Flood, 1 Ariz.App. 502, 405 P.2d 293, 295 (1965); Wise v. Curdes, 219 Ind. 606, 40 N.E.2d 122, 126 (1942). We further find that the date of such notice, six and one-half months pri- or to the deadline for filing claims, was sufficient to allow the plaintiffs an equal opportunity to avail themselves of the benefits of the act and to fully protect their rights. See Moureau v. Leaseamatic, Inc., 542 F.2d 251, 253 (5th Cir. 1976), citing Birkett v. Columbia Bank, 195 U.S. 345, 25 S.Ct. 38, 49 L.Ed. 231 (1904); Brown v. Tucker Professional Associates, 139 Ga.App. 740, 229 S.E.2d 541, 542 (1976).

Defendants offered evidence of a discharge in bankruptcy sufficient to bar plaintiffs’ claim, including evidence of timely notice to plaintiffs of the bankruptcy proceedings. Furthermore, plaintiffs filed no response whatsoever to the motion for summary judgment and raised no issue as to lack of notice or the scheduling of their claim. Rule 74.04(e). Consequently, there was no genuine issue of material fact to prevent the granting of summary judgment on the grounds asserted by defendants.

Affirmed.

GUNN and CRIST, JJ., concur.

      . Plaintiffs had executed a note payable to defendant Lake St. Louis Estates Company. This note was secured by a Deed of Trust in which defendant Blumenfeld was the named “Trustee”. No relief was requested of Blumenfeld in Courit I. Count II incorporated by reference the allegations of Count I and plaintiffs’ request for injunctive relief against Blumenfeld in Count II was premised upon their claims against Lake St. Louis Estates Co.


text:
    Zona M. JENKINS and Clyde Jenkins, Plaintiffs-Respondents, v. Mary E. KELLER, Defendant-Appellant.
    No. 9921.
    Missouri Court of Appeals, Southern District, En Banc.
    March 16, 1979.
    Donald E. Bonacker, Bonacker & Reynolds, Springfield, for plaintiffs-respondents.
    Gerald H. Lowther, C. Ronald Baird, Lowther, Johnson & Franks, Springfield, for defendant-appellant.
   BILLINGS, Judge.

Damage suit and jury verdict for defendant. The trial court granted plaintiffs’ motion for a new trial because the contributory negligence instruction omitted “the use of” from MAI 17.04 preceding the phrase “the highest degree of care.” Defendant contends the omission did not result in prejudicial error and avers: (1) plaintiffs failed to make a submissible case of negligence, and (2) plaintiff Zona Jenkins was guilty of contributory negligence as a matter of law. We affirm the action of the trial court.

Instruction 4, given at defendant’s request, was as follows:

“Your verdict must be for Defendant MARY KELLER on the claims of both plaintiffs, Zona M. Jenkins and Clyde Jenkins, for damages, whether or not defendant Mary Keller was negligent, if you believe:

FIRST, Plaintiff, Zona M. Jenkins, either: Drove at an excessive speed, or knew, or by the highest degree of care could have known, that there was a reasonable likelihood of collision in time thereafter to have stopped, or swerved, or slackened her speed and swerved, but Plaintiff, Zona M. Jenkins, failed to do so; and
SECOND, Plaintiff, Zona M. Jenkins’ conduct in any one or more of the respects submitted in Paragraph First, was negligent; and
THIRD, such negligence of Plaintiff, Zona M. Jenkins, directly caused or directly contributed to cause any damage plaintiffs may have sustained.

The term ‘highest degree of care’ as used in this instruction means that degree of care that a very careful and prudent person would use under the same or similar circumstances.”

Defendant admits that the applicable part of MAI 17.04 should have read that plaintiff Zona M. Jenkins “knew or by the use of the highest degree of care could have known” ánd concedes the omission of “the use of” constitutes a deviation from an applicable MAI instruction, but says this was not prejudicial to plaintiffs:

Supreme Court Rule 70.02, V.A.M.R., formerly Rule 70.01, provides, in part, as follows:

“(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject.
(c) The giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.”

In Brown v. St. Louis Public Service Company, 421 S.W.2d 255 (Mo. banc 1967), our Supreme Court, speaking through Finch, J., said at 257:

“This court, by its adoption of Missouri Approved Instructions, promulgated precise approved instructions. These had been drafted after much research and great effort on the part of the court’s special committee and its able reporter, the late Professor John S.' Divilbiss. A preliminary draft was distributed and suggestions were received from the bench and bar before final adoption. The system was devised to eliminate the old system of complex, detailed and frequently argumentative instructions which caused great difficulty for jurors, lawyers and judges, and resulted in a high percentage of reversals on account of instructions given or refused. The special committee carefully considered the precise words to use in each approved instruction in order to provide simple, concise and understandable instructions. Directions as to the format to be followed were given to cover those instances where no MAI instruction is provided or where the facts of a case require modification of an MAI instruction. When an MAI instruction is applicable, its use is mandatory.” (Emphasis added).

In Brown, supra, the court ruled that where there is a deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation. 421 S.W.2d at 259.

In sustaining plaintiffs’ motion for a new trial because of the omission in Instruction 4, the experienced trial judge made the following entry:

“Instruction 4 was erroneous because it omitted the words ‘the use of’ which are required by MAI 17.04. The question to be judicially determined is whether such omission was prejudicial to plaintiffs. The Missouri Supreme Court presumably considered the omitted words important. Such words relate to and require finding that the party (Zona Jenkins in this case) failed to use ‘that degree of care that a very careful and prudent person would use under the same or similar circumstances’ (the wording in MAI 11.03). The words are similar to the words ‘by using’, which are found in many MAI instructions (e. g. 17.14, 17.15, 22.03, 22.04, 22.05, 25.03, 31.01, 33.06(1), (2), (3), (4) and (6)). Paragraph First, without ‘the use of’, does not require the jury to find that Zona Jenkins could have known, etc. if she had fulfilled her duty to make the use of the highest degree of care, and thus does not clearly define her duty. Mandatory paragraph Third of Instruction 4 (referring to negligence) and mandatory Instruction 7 (MAI 11.03, which uses the words ‘the failure to use the highest degree of care’) should be read with paragraph First of Instruction 4. When this is done, paragraph First could mean that the jury was being told that they must find that plaintiff Zona Jenkins, herself personally, could have known, etc. if she had used (that is by the use of) the highest degree of care. But MAI 17.04 apparently was not considered by the MAI Committee or The Missouri Supreme Court to be completely clear without' putting in the words ‘the use of’ in paragraph First. Therefore, the court concludes that the instruction was prejudicial to plaintiffs and the court judicially so determines.”

The prejudicial effect of the instruction was primarily a matter for the trial judge and on review we are obliged to look with liberality upon the action of the trial court in granting a new trial. Brown v. St. Louis Public Service Company, supra, concurring opinion by Storckman, J., at 260; Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974). As Judge Titus of this court wrote in Brittain v. Clark, 462 S.W.2d 153 (Mo.App.1970), at 157: “We are indubitably tied to the aphoristic principle that an appellate court will be more liberal in upholding the action of a trial court in sustaining a motion for a new trial then [sic] in denying it. . This precept has been afforded complete accommodations in appeal cases involving jury instructions.” (Citations omitted).

Here, as the trial court pointed out, MAI 17.04 as given conflicts with MAI 11.-03, insofar as the duty of plaintiff Zona Jenkins is concerned. Defendant has failed to provide us with authority that considers the instant omission harmless error. On the contrary, she seeks to avoid the presumption of prejudicial error by a combined reading of Instruction 4 (MAI 17.04) and Instruction 7 (MAI 11.03), and by defendant’s jury argument concerning Instruction 4 in which defense counsel verbally inserted “the use of.” As noted, a conflict appears between Instructions 4 and 7 and error in instructions cannot be cured by jury argument. Snyder v. Chicago, Rock Island & Pacific R.R. Co., 521 S.W.2d 161 (Mo.App.1973).

Judge Finch, in Brown, supra, summed up the Supreme Court’s philosophy as to variances from MAI instruction this way:

“It must be recognized, however, that a system of instruction such as MAI is inherently standardized and inflexible. If this court is to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written." 421 S.W.2d at 257-258 (Emphasis added).

Here, the applicable MAI instruction was not given as written. Defendant has failed to make it perfectly clear that no prejudice resulted. The trial court judicially determined the instruction was prejudicial to plaintiffs. We defer to the conclusion of the trial court.

Plaintiffs are entitled to the most favorable evidence rule in our review of defendant’s contentions regarding the sub-missibility of plaintiffs’ case, Abraham v. Johnson, 579 S.W.2d 734 (Mo.App.1979) and contributory negligence of plaintiff Zona Jenkins [Bischoff v. Dodson, 405 S.W.2d 514 (Mo.App.1966)]. Thus, we are required to give plaintiffs the benefit of all favorable evidence and every reasonable inference to be drawn therefrom, disregarding defendant’s evidence unless it aids the plaintiffs’ case.

Plaintiff Zona Jenkins was southbound on Campbell Street in Springfield in a Ford automobile. She was driving 40 miles an hour, the legal speed limit, in the inside lane. The outer southbound lane was to her right and a turn lane and two northbound lanes were to her left. She saw defendant’s Chevrolet automobile slowly emerging from a private driveway which was located on the west side of Campbell. The Chevrolet was headed in an easterly direction. Mrs. Jenkins said she was about 200 feet north of the driveway when the defendant’s car started onto Campbell and that she decreased the speed of her vehicle so that the Chevrolet would pass in front of her. Defendant Keller was intending to cross the southbound lanes, turn left, proceed a short distance north, and then turn, right onto a street which intersected Campbell. Defendant’s car crossed the outer southbound lane, part of the inner southbound lane, and stopped, partially blocking the inner lane. At this time Mrs. Jenkins’ car was approximately 50 feet away and travelling at approximately 30 miles an hour. Mrs. Jenkins swerved her vehicle to the right and the car crossed the outside southbound lane and struck a pole which was located a short distance from the edge of Campbell Street and slightly south of the stopped Chevrolet. Defendant at the scene, exclaimed: “Oh, I’ve caused a wreck, I’ve caused a wreck.”

Plaintiffs submitted defendant’s failure to yield the right-of-way and defendant argues the distances, times and speeds failed to establish that the Jenkins vehicle was in a position of “immediate hazard” when defendant drove from the private driveway onto Campbell Street.

By Instruction 6, MAI 14.06, the phrase “right-of-way” was defined. The definition is based on § 304.351(5) RSMo 1969 which provides: “The driver of a vehicle about to enter or cross a highway from . [a] driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered.” Defendant refers us to Johnson v. Bush, 418 S.W.2d 601 (Mo.App.1967), and Taylor v. Schneider, 370 S.W.2d 725 (Mo.App.1963), and points out that in those cases the court said that the driver of a vehicle about to enter or cross a highway from a private driveway was only required to yield to approaching vehicles that had reached a point so close “as to constitute an immediate hazard.” Defendant contends that the times, distances and speeds demonstrate that the Jenkins vehicle did not constitute an immediate hazard to defendant’s entry onto Campbell Street; that the applicable rule is “could reasonable minds differ as to whether plaintiff Zona M. Jenkins’ automobile was so close as to constitute an immediate hazard”; and, that even applying the most favorable evidence rule, plaintiffs failed to make a submissible ease on defendant’s failure to yield the right-of-way. We disagree.

Defendant saw the Jenkins automobile approaching from the north. She drove “slowly” from the private drive across the southbound lanes and stopped her car so that it was obstructing travel in the inner lane in which the Jenkins car was travel-ling. The right of Mrs. Jenkins to proceed south was blocked by defendant’s car when the two vehicles were only about 50 feet apart and the Jenkins automobile was travelling 30 miles an hour. The pole struck by the swerving Jenkins car was just slightly south of defendant’s stopped vehicle. We believe, and hold, that reasonable minds could differ as to whether the Jenkins automobile was so close as to constitute an immediate hazard when defendant drove her car across Campbell Street from the private driveway.

Defendant recognizes her heavy burden in attempting to demonstrate plaintiff Zona Jenkins was guilty of contributory negligence as a matter of law. In Davenport v. Wabash Railroad Company, 435 S.W.2d 641 (Mo. banc 1968), our Supreme Court said at 646: “We are mindful of the well-known rules: (1) that in determining whether plaintiff’s decedent was guilty of contributory negligence plaintiff’s evidence must be considered as true and she must be given the benefit of all reasonable inferences and the aid of defendants’ evidence favorable to her; and (2) that if reasonable men would honestly differ upon whether Mr. Davenport exercised the highest degree of care in operating his automobile at the time and place mentioned in evidence the issue of his contributory negligence was for the jury.”

Until circumstances coincided which would have led Mrs. Jenkins, in the exercise of the highest degree of care, to believe she should take evasive action, she was under no duty to do so. Moore v. Middlewest Freightways, Inc., 266 S.W.2d 578 (Mo.1954). Nydegger v. Mason, 315 S.W.2d 816 (Mo.1958). The case of Wheeler v. Breeding, 109 S.W.2d 1237 (Mo.App.1937), which dealt with a fact situation similar to the one before us, held that the plaintiff therein had the right to presume that defendant Breeding would exercise the highest degree of care in the operation of his vehicle, and was not required to take defensive action, unless “ . . .a very careful and prudent person would have believed the collision inevitable.” 109 S.W.2d at 1242. “There must be a reasonable likelihood of collision before [one] is required to act, and time thereafter to take effective preventive action . . . ” Burks v. Leap, 413 S.W.2d 258, 264 (Mo.1967). Under the preceding rules of law, Mrs. Jenkins cannot be charged with the knowledge that defendant would fail to yield the .right-of-way by stopping in the inner southbound lane. On the contrary, she was entitled to presume just the opposite until a point, the ascertainment of which is discussed below, was reached.

Under the evidence, as viewed most favorably toward plaintiffs, Mrs. Jenkins slowed her vehicle and later avoided a collision with the Keller car by swerving. Defendant asks this court to declare as a matter of law that Mrs. Jenkins caused or contributed to cause her own injury by failing to take evasive action earlier; the request is for us to decide the point at which “a reasonable likelihood of collision” arose, and Zona Jenkins’ right to presume defendant would yield the right-of-way ceased. The determination of that point is the key issue on the question of contributory negligence, and we believe it is one upon which reasonable persons could honestly differ. For that reason, the issue of Mrs. Jenkins’ contributory negligence is not to be decided by this appellate court, but by a jury.

The judgment is affirmed.

All concur.

      . In view of our ruling on the omission of mandatory words from the instruction we do not reach plaintiffs’ remaining points concerning Instruction 4.


author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Kelly NETZER and Jeff Netzer, Defendants-Appellants.
    Nos. 10874, 10875.
    Missouri Court of Appeals, Southern District, Division Two.
    March 16, 1979.

      John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

      John A. Watkins, Greenfield, for defendants-appellants.
   MAUS, Judge.

Kelly Netzer was charged in separate cases with cultivating and growing marijuana on the Westle Place and growing marijuana on the old Bartling Place. Jeff Netzer was charged in a separate case with cultivating and growing marijuana on the old Bartling Place. Kim Jeffreys Netzer (wife of Kelly Netzer) was charged in a separate case with cultivating and growing marijuana with no specification of location other than Dade County. By agreement the four cases were consolidated and tried before a jury. The jury found Kim Jef-freys Netzer not guilty. The jury found Kelly Netzer and Jeff Netzer guilty of the charged offenses in respect to the old Bar-tling Place. No verdict was returned on the charge against Kelly Netzer in respect to the Westle Place (which charge was amended during trial to refer to the R. Netzer Place). The state then dismissed this charge. Kelly Netzer and Jeff Netzer appeal. The cases have been consolidated for briefing and opinion.

With emphasis under point IV (asserting in general terms the insufficiency of the evidence) the defendants attack the credibility of the testimony of Brad West-lake. Westlake was a colleague of defendants. He was arrested for selling marijuana to an undercover agent. Initially he assumed sole responsibility for growing the marijuana in question. After considerable interrogation, he recanted and implicated the defendants in this case. He cooperated with the authorities in making another case. He did receive favorable treatment from the authorities. His testimony provides the link between that marijuana and the defendants. Irrespective of any individual attitude concerning Westlake’s testimony, his credibility was for the jury. In view of the verdicts, this court must view the evidence most favorable to the state and consider favorable inferences to be drawn from this evidence rejecting any evidence to the contrary. State v. Evans, 545 S.W.2d 694 (Mo.App.1976). A summary of the evidence, so viewed, follows.

Westlake was originally from Iowa. He had considerable experience with and knowledge of drugs, as that term is used in the context of this case. He came to Missouri to act as “roady” for a band. For a period of time he lived at the Westle Place with Kelly Netzer, Kim Jeffreys Netzer and another individual. He left at the request of the owner (Kelly’s father). While living at the Westle Place he smoked a lot of pot.

Westlake’s testimony was that in February he, Kelly and Kim went to the R. Net-zer place, turned the soil and planted marijuana seeds at a location not visible from the road. Westlake and Kelly returned on four or five occasions to look at the plants and on one occasion broke clods and pulled weeds. When the authorities visited the tract April 23 or 24 they pulled 1800 to 1900 plants approximately 8 to 20 inches in height.

Westlake’s further testimony was that about March 1 he, Kelly and Jeff went to the old Bartling Place. Each selected a separate plot and turned the soil and planted marijuana seeds in their respective plots. Westlake talked to them about the marijuana at that time. When the authorities visited the tract May 7 they pulled marijuana plants from each of the plots. It was estimated there were 1000 plants on the tract, six to eight inches in height.

Kelly Netzer testified. He said Westlake was mad at the Netzer family because he was forced to move; Westlake damaged the dwelling that Kelly was improving and with his fist broke the windshield in Kelly’s car. Kelly did not testify concerning whether or not he cultivated or grew marijuana.

Jeff Netzer also testified. He said he knew what he was accused of, but he had never grown marijuana. He also said he wouldn’t know marijuana if he saw it. But, he said he had seen no marijuana at the R. Netzer or old Bartling Place. He had been to the old Bartling Place a long time ago. He first said he knew of Westlake, but later said he didn’t know him very well.

Defendants’ first point is that there is no statute prohibiting the growing or cultivation of marijuana. By argument they assert that the process of statutory construction necessary to reach such a prohibition is too intricate to find it was the intent of the legislature to prohibit such acts and, inferentially, the prohibition is too vague. A statute will withstand such attack if it is “ ‘sufficiently explicit, in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty, fix an ascertainable standard of guilt, and make known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” State v. Crawford, 478 S.W.2d 314, 317 (Mo.1972), U.S. reh. den. 409 U.S. 1051, 93 S.Ct. 536, 34 L.Ed.2d 505.

§ 195.020 of the Uniform Controlled Substances Act (Chapter 195, RSMo 1969, V.A. M.S.) provides: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, distribute, or compound any controlled or counterfeit substance . . ..” By definition, § 195.010(19) “manufacture” includes production. By further definition, § 195.-010(28) “production” includes the manufacture, planting, cultivating, growing or harvesting of a controlled substance.

We are in agreement with defendants to the extent of considering the language and structure of the Act to be less than a model of clarity in several respects. The same may be said of many enactments, for example the Internal Revenue Code. However, the fact that an act requires more than a quick glance for full comprehension does not cause it to be invalid. People v. Latsis, 578 P.2d 1055 (Colo.1978). “Because it is necessary to refer to other subchapters in order to determine the exact nature of the offense charged does not make the penal statute unconstitutionally vague.” United States v. Little, 321 F.Supp. 388 (D.C.Del.1971). The provisions of the Act, a comprehensive code, must be construed together. Welborn v. Southern Equipment Company, 386 S.W.2d 432 (Mo.App.1964). § 195.020 does by statutory construction forbid cultivating or growing marijuana. Patty v. State, 260 Ark. 539, 542 S.W.2d 494 (1976); Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976).

Defendants’ second point is that their motion for acquittal should have been sustained because the state did not prove that the marijuana was grown for other than personal use. This argument is based upon § 195.010(19) which is the definition of manufacturing and contains the following language: “means . . . except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use . . ..” Defendants’ argument fails for two reasons.

First, § 195.180 of the Act provides: “In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of [the] law, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this law, and the burden of proof of any such exception, excuse, proviso or exemption, shall be upon the defendant.” The burden of proof of the alleged exception was upon defendants. State v. McAllister, 468 S.W.2d 27 (Mo.1971); State v. Zimpher, 552 S.W.2d 345 (Mo.App.1977).

Second, the claimed personal use exception applies only to “preparation and compounding” and not to cultivating and growing. Patty v. State, supra; Bedell v. State, supra.

Defendants offered an instruction using the term “manufactured” rather than “cultivated and grew” and requiring the jury to find the defendant manufactured marijuana for other than his own use. Defendants’ third point is error in refusing this instruction and giving verdict directing instructions using the terms “cultivated and grew”. Defendants in their brief did not as required by Rule 84.04(c) set forth the instructions under consideration. We are therefore not required to consider this allegation of error. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Crowell, 560 S.W.2d 889 (Mo.App.1978). Nevertheless, we have examined the proffered instruction and find that it placed the burden upon the state to prove the inapplicability of an exception which did not pertain to the charge. It was not error for the court to refuse such an instruction which did not correctly declare the applicable law. State v. McCoy, 530 S.W.2d 8 (Mo.App.1975).

The defendants also allege error because the verdict directing instructions used the terms “cultivated and grew” rather than “manufactured”. It is true MAI-CR 14.10 provided as alternative choices for the submission of the prohibited act the terms used in § 195.020 such as “possessed” or “manufactured.” Of course, if an applicable instruction is provided in MAI-CR the use of another instruction is error, its prejudicial effect to be judicially determined. Rule 20.02(e). We do not necessarily construe the use of “cultivated and grew,” terms included in the statutory definition of “manufactured,” to be a deviation from MAI-CR. Had the instructions used “manufactured,” as so used that term is a legal or technical term, and it should have been defined in statutory language. State v. Smith, 342 S.W.2d 940 (Mo.1961); State v. Hurvey, 544 S.W.2d 593 (Mo.App.1976). Even if the use of “cultivated and grew” was a deviation, which we need not decide, the verdict directing instructions submitting the offense in the language of the statutory definition were not prejudicial and certainly did not result in manifest injustice. State v. Holt, 465 S.W.2d 602 (Mo.1971); State v. Abram, 537 S.W.2d 408 (Mo. banc 1976); State v. Sykes, 559 S.W.2d 643 (Mo.App.1977).

Defendants’ fourth allegation of error is.that there was insufficient evidence to support convictions for growing and cultivating marijuana. They assert that proof of such offenses is not satisfied by their acts of turning the soil and planting seeds, which is the only activity established at the old Bartling Place. This by necessity requires a construction of the Act and examination of the meaning of those words.

“The primary rule of statutory construction is to ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning.” State v. Kraus, 530 S.W.2d 684, 685 (Mo. banc 1975). Considering the Act and in particular § 195.020 with its associated definitions, there should be no doubt but what the legislature intended to proscribe any activity which would make marijuana available for uncontrolled use.

An accepted meaning of the word “grow” as an intransitive verb is to “have vegetal or animal life” or as a transitive verb “to cause to have vegetal or animal life.” Webster’s Third New International Dictionary. It does not require, as defendants imply, the necessity of growth to maturity or harvest. An accepted meaning of the word cultivate is “to prepare for the raising of crops; . till ... to protect and encourage growth” Webster’s Third New International Dictionary.

Charges arising from the growth of marijuana have received but little attention in the appellate courts. Our research has developed the following cases. A plant growing in a pot was evidence of prohibited cultivation. Box v. State, 541 P.2d 262 (Okl.Cr.1975). Watering three plants constituted cultivation. State v. Lucks, 56 Haw. 129, 531 P.2d 855 (1975). Five plants in a garden constituted possession. State v. Rutherford, 4 Or.App. 164, 477 P.2d 911 (1970). Similar evidence supported a conviction of planting and cultivating. People v. Gorg, 45 Cal.2d 776, 291 P.2d 469 (1955). Twelve plants in eight pots supported a conviction for cultivation. Capehart v. State, 559 P.2d 861 (Okl.Cr.1977). Seventy plants supported a conviction of manufacturing. Graybeal v. State, 13 Md.App. 557, 284 A.2d 37 (1971).

Under the definition above and authorities cited, we believe a jury could have reasonably found the defendants did cause the marijuana plants to have vegetal life and did encourage and promote their growth.

As defendants urge, it was necessary that the defendants were aware of the character of the seeds. In other words, that they knew they were planting marijuana and were not acting. under the belief they were planting something else, such as radishes. This knowledge need not be shown by direct evidence but can be established by reasonable inference. State v. Wiley, 522 S.W,2d 281 (Mo. banc 1975); State v. Davis, 515 S.W.2d 773 (Mo.App.1974).

In regard to charges of possession, the awareness may be inferred from the intentional possession of the substance. State v. Young, 427 S.W.2d 510 (Mo.1968); State v. Virdure, 371 S.W.2d 196 (Mo.1963). There is no doubt that Westlake knew they were planting marijuana. Kelly obviously knew as he too had seeds. Westlake discussed the marijuana with Kelly and Jeff at the time of planting. The requirement of awareness was submitted to the jury. We believe a jury could, as it did, reasonably find that each of the defendants acting in concert with Westlake in selecting a plot, turning the soil and planting the seeds was aware he was planting marijuana.

Defendants’ next contention pertains to the refusal of the trial court to declare a mistrial based upon alleged improper questions of the prosecutor. The first alleged incident occurred when the prosecutor elicited from a defense witness the fact he had received a suspended sentence for selling marijuana. No objection to this was voiced at the trial and none may be made now. The second occurred when Kelly was asked if he grew the “marijuana out there.” He answered, “what marijuana are you referring to?” An objection was then made and sustained. No further relief was asked. A similar question was asked Kim and when counsel said', “Now, your Honor,” the court sustained an objection, no answer was given and counsel then completed his statement and asked for a mistrial. No other relief was sought. Granting a mistrial is a drastic remedy within the discretion of the trial court and should not be granted unless any prejudice created cannot be removed by other means. State v. Harris, 547 S.W.2d 473 (Mo. banc 1977); State v. Hoskins, 569 S.W.2d 235 (Mo.App.1978). Under the circumstances in question, we cannot say the trial court abused its discretion in not granting a mistrial. State v. Smith, 355 Mo. 59, 194 S.W.2d 905 (1946); State v. Tygart, 531 S.W.2d 47 (Mo.App.1975).

Defendants next urge error by the trial court in failing to grant four motions in limine. The first motion on behalf of Kelly sought to limit the evidence to his activities on the old Bartling Place and Westle Place. The charge against Kelly referring to the Westle Place was amended to refer to the R. Netzer Place. The second motion pertained to Kim and she was acquitted. The third motion in behalf of Jeff sought to limit the evidence of his activities to the old Bartling Place. The evidence was so confined. At the close of the evidence the trial court instructed the jury to disregard any evidence about marijuana being grown on the old Westle Place. Under the circumstances of this case, to establish defendants’ awareness of marijuana, it was proper to show defendants’ activities connected with marijuana even though they were not charged with an offense at a particular place. State v. Williams, 539 S.W.2d 530 (Mo.App.1976). The trial court did not err in overruling these motions.

Defendants’ fourth motion sought to limit any evidence of activities to the Roland Netzer Place, as that was the only place mentioned in the state's disclosure. Amended informations were filed seven days before trial specifically alleging the old Bartling Place. No continuance was sought nor surprise claimed. The exclusion of evidence as a sanction for non-disclosure is discretionary with the trial court. The defendants have not demonstrated any fundamental unfairness or abuse of that discretion. State v. Helms, 559 S.W.2d 587 (Mo.App.1977); State v. Moten, 542 S.W.2d 317 (Mo.App.1976).

The judgments are affirmed.

BILLINGS, P. J., and HOGAN, J., concur.


author: PER CURIAM.

text:
    James BRYAN and Mabel Bryan, Plaintiffs-Respondents, v. Donald VAUGHN and Doris M. Vaughn, Defendants-Appellants. James BRYAN and Mabel Bryan, Plaintiffs-Appellants, v. Donald VAUGHN and Doris M. Vaughn, Defendants-Respondents.
    Nos. 10101, 10102.
    Missouri Court of Appeals, Southern District, En Banc.
    March 21, 1979.

      Kenneth W. Johnson, Johnson & Sweeney, Springfield, for plaintiffs-respondents-appellants.
    David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendants-appellants-respondents.
   PER CURIAM.

This case arises out of a lease entered into by James Bryan and Mabel Bryan, plaintiffs, and Donald Vaughn and Doris Vaughn, defendants. The Bryans were owners of the Lone Star Motel, located in Springfield, Missouri, and the Vaughns were the lessees of said motel. On September 7, 1973 plaintiffs filed suit by attachment, seeking to recover rent for the month of September, 1973. On September 10,1973 defendants filed a motion to dissolve the attachment and the same was ordered dissolved the following day. Defendants counterclaimed in three counts, all of which are involved in this appeal. In Count I they claimed, inter alia, the sum of $800.00 for overpayment of rent for the months of July and August 1973; $1,000.00 for the wrongful attachment of their personal property by plaintiffs; and $5,000.00 deposited by them as security at the execution of the lease, together with interest thereon. In Count II of defendants’ counterclaim punitive damages were sought for eviction of defendants from the leased premises. Count III prayed for an award of punitive damages for unlawful attachment.

The amended petition filed on plaintiffs’ behalf contained five counts, only two of which are involved on appeal. Count I sought the recovery of $2,400.00 as rent for the month of September 1973; Count II alleged that $7,200.00 was due plaintiffs as liquidated damages.

Trial was to the court, a jury having been waived, and findings of fact and conclusions of law were filed. Judgment was rendered in favor of plaintiffs and against defendants on Count I of plaintiffs’ petition in the amount of $250.00. Judgment on all other counts of plaintiffs’ petition was entered against plaintiffs and in favor of defendants. On Count I of the counterclaim the judgment was in favor of defendants and against plaintiffs in the amount of $5,000.00, with interest of 5% per annum from September 1, 1972. On Count II of the counterclaim judgment was in favor of plaintiffs and against defendants; and on Count III judgment was entered in favor of defendants and against plaintiffs for $275.00 actual damages, $1.00 nominal damages and $250.00 punitive damages. Cross appeals were filed with this court. We affirm.

The trial court found that a landlord-tenant relationship was created by the written lease agreement between the parties; that defendants took possession of the leased premises on or about September 3, 1972; and that under the lease defendants agreed to pay as rent, $2,000.00 per month, in advance, on the first day of each month. Further, it was found that as of August 31, 1973 defendants were current on their obligation for payment of rent.

It was not until September 1, 1973 that a dispute developed between the Bryans and the Vaughns. The basis of the dispute was Paragraph 4(a) of the lease, which read: “That the Lessors are in the process of building seven additional rooms and it is contemplated said rooms will be completed and ready for occupancy by June 1st, 1973. . [T]he Lessees shall provide adequate furnishings for said rooms and the rent under this lease shall be increased by $400.00 per month, to be effective 10 days after the date the units are completed and ready for occupancy. . . .” In addition to the $2,000.00 rent payment per month, and the increase in the above-quoted paragraph, the trial court found that the parties had entered into an oral agreement by which plaintiffs would provide furniture for the new rooms for which defendants would pay $100.00 per month rent. Thus, the maximum amount due from defendants on September 1 would have been $2,500.00.

It was undisputed that defendants paid $400.00 rent under Paragraph 4(a) for each of the months of July and August 1973. On the first day of September, 1973, defendants tendered a check for September rent in the amount of $1,700.00, which was refused by plaintiffs. Defendants’ contention was then, as it is now, that $800.00 was properly deducted from the September rent because they had not owed the $400.00 they paid under Paragraph 4(a) in July and August, as all seven units had not then been completed and ready for occupancy. The seven units referred to in Paragraph 4(a) consisted of two groups of rooms: (1) five rooms which were completed by July 1,1973 about which there is no controversy, and (2) two basement rooms which did not have private baths and which were used for storage. It was the two basement rooms which defendants allege were never completed in accordance with the lease.

On September 1 or 2, 1973, plaintiff Mr. Bryan told defendant Mrs. Vaughn not to rent any more rooms, but at least one room was rented thereafter. At some point on September 2, plaintiff Mr. Bryan pulled a backhoe across the driveway to the leased premises; a sign placed on the backhoe read: “Motel closed, lease not paid.” The defendants rented a truck on September 4 in which they loaded their personal belongings. These personal effects were attached along with other personal property when this suit commenced on September 7, 1973.

The judgment of the trial court is attacked in several respects by the two parties. The first two points relied on by plaintiffs involve the attachment of defendants’ personal property, and are combined in defendants’ brief for the purpose of argument. Plaintiffs’ third and fourth points are likewise argued together, and they relate to those portions of the trial court’s judgment concerning the legal effect of defendants’ failure to tender $2,500.00 as rent ■on September 1. Defendants’ points relied on attack the judgment on the ground that the trial court’s decision on Counts I and II of the counterclaim rested on an erroneous finding that defendants had defaulted in the payment of rent. We shall discuss the points in the order just set out.

The plaintiffs refer us to the early case of Chamberlain v. Heard, 22 Mo.App. 416 (1886), which they believe to stand for the proposition that a landlord is entitled to his lien for rent if some statutory ground exists, “without regard to whether he believes that he is in jeopardy of not getting paid.” Chamberlain, in fact, does not go so far; it states that the requirement of the statute of an affidavit stating the landlord’s belief that he is in danger of losing his rent does not present an issuable fact so that such belief must be proved to sustain the attachment. But this is much different from a statement that attachment lies “without regard to” the plaintiff’s belief that he will lose his rent unless the attachment issue. § 441.240, RSMo 1969, requires plaintiff to make an affidavit averring such belief, and we cannot believe the Chamberlain case was meant to encourage the swearing of false affidavits.

As recognized by Heidemann v. Hellrung, 220 S.W.2d 737, 738 (Mo.App.1949), “[t]he purpose of the statute authorizing attachment when the tenant intends to remove his property from the premises is to secure to the landlord the payment of his rent.” (Emphasis ours). If the collection of rent is not endangered, and such fact is shown, the attachment should be dissolved. Whether actual or intended removal of property from leased premises will endanger the landlord in the collection of his rent is a question for the trier of fact. Morris v. Hammerle, 40 Mo. 489 (1867), Kleun v. Vinyard, 38 Mo. 447 (1866). In the case before us the trial court, sitting as the trier of fact, found that “the attachment of defendants’ personal property was unlawful and not made in good faith, but was malicious in that, at the time the attachment was made, plaintiffs had in their possession $5,000.00 belonging to defendants, plus one year’s interest, which had been deposited as security for their performance of the lease agreement, and even under plaintiffs’ interpretation defendants owed them only the sum of $2,500.00.” There is substantial evidence to sustain this finding. No danger of loss of rent existed in fact, and the attachment was properly dissolved; this answers plaintiffs’ first point. Further, as to the second point relied on by plaintiffs, the trial court’s determination above rested on sufficient evidence and the imposition of damages for wrongful attachment under Count III of defendants’ counterclaim was therefore proper.

We now turn to a discussion of plaintiffs’ third and fourth points. Point III charges the trial court with error in its judgment on Counts I and II of the amended petition; the award of $250.00 to plaintiffs on Count I is challenged as “wholly insufficient”, while the judgment against plaintiffs on their claim for liquidated damages in Count II is said to be unsupported by the evidence.

The court below found that “plaintiffs would be entitled to a judgment on Count I of plaintiffs’ amended petition in the sum of $2,500.00 for rent due September 1,1973, representing $2,000.00 under Paragraph 1(a), $400.00 under Paragraph 4(a), and $100.00 for furniture. However, defendants were precluded from keeping the leased premises by the action of plaintiffs [i. e. blocking the motel driveway with the backhoe bearing the sign “Motel closed, lease not paid”]. Plaintiffs should recover for that portion of the month that defendants were in actual possession, namely three days. . . [T]he Court feels that a pro rata amount of one-tenth of the rental, namely $250.00, should be allowed plaintiffs under Count I of their petition.”

Plaintiffs set out the following question in their brief: If the Vaughns (defendants) owed $2,500.00 as of September 1, “[h]ow can their liability be decreased because they abandoned the premises?” The answer to this question is that the tenants liability for rent is suspended if they abandon the premises because of their constructive eviction by the landlord. 49 Am.Jur.2d, Landlord and Tenant, § 576 (1970). King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973). The court below found that plaintiffs’ act of blocking the driveway with the backhoe and sign constituted an eviction of defendants, and we agree. “A constructive eviction may be found . when it appears that [the lessor] . does some act amounting to intentional, injurious interference . . . with the tenant’s possession and which deprives the tenant of the means or the power of beneficial enjoyment of the demised premises, or any part thereof, or materially impairs such beneficial enjoyment.” Dolph v. Barry, 165 Mo.App. 659, 668, 148 S.W. 196, 198 (1912). Because of the act of plaintiffs constituting an eviction, defendants were relieved of the obligation to pay rent after they abandoned the premises. The award of $250.00 to plaintiffs is not insufficient.

Also argued by plaintiffs under their third point is the contention that they were entitled to liquidated damages as set forth in the lease agreement. By way of response to this contention, we will set out the pertinent part of the lease: “Provided, however, that upon taking possession hereunder, the Lessors may at their election terminate and end this lease or may relet said property, and the Lessees shall be liable for the difference in the rental for the balance of the term, or if the Lessors do not relet but operate the property themselves, then and in that event the Lessors shall be liable for three additional months’ rent from the time of retaking possession, to be paid as and for liquidated damages.” (Emphasis ours). Even were we to find, without suggestion from either party, that the underlined word was included in the agreement by mistake, and on our own motion change the lease to read “Lessees” in place of the emphasized word “Lessors”, still it would not aid the plaintiffs. Under the lease, plaintiffs as Lessors could, at their election, terminate the lease upon default by defendants in the payment of rent. At the time the backhoe was placed in the motel driveway, and when defendants were relieved of any further obligation under the lease upon their abandonment of the property the next day, plaintiffs had not elected to end the lease. In short, the lease was not terminated by defendants’ failure to tender all the rent due on September 1, nor by election and notice thereof by plaintiffs. Instead, the lease ended by the wrongful act of plaintiffs, constituting an eviction, and in such circumstances plaintiffs are in no wise entitled to liquidated damages.

Finally, under Point IV of their brief, plaintiffs complain that the decree returning to defendants their $5,000.00 security deposit was erroneous because defendants had not performed their obligations under the lease. Under Paragraph 3(a) of the lease instrument, plaintiffs-lessors covenanted “To return the Five Thousand ($5,000.00) Dollars to Lessees upon their satisfying all their obligations under this lease.” As we have explained above, upon payment of $250.00 to plaintiffs, pursuant to the affirmance by this court of the judgment below, defendants-lessees will have satisfied all of their obligations under the lease, and thus will be entitled to the return of their deposit.

We now consider defendants’ allegations of error. Point I of defendants’ brief relates again to Paragraph 4(a), discussed above, and states that the finding that defendants owed $2,500.00 on September 1, and the judgment resulting therefrom, should not be permitted to stand. Defendants urge us to adopt the view that Paragraph 4(a) is unambiguous, and that by its clear terms we should determine the existence of an overpayment in July and August, all seven rooms not then having been completed. We are unable to adopt the view urged. “It is sometimes said that if the words of a contract are plain and clear, evidence of surrounding circumstances to aid interpretation is not admissible. But some of the surrounding circumstances always must be known before the meaning of the words can be plain and clear; and proof of the circumstances may make a meaning plain and clear when in the absence of such proof some other meaning may also have seemed plain and clear.” 3 Corbin on Contracts § 542, pp. 100-103 (1960). We believe, with the trial judge, that such terms as “seven additional rooms”, “completed”, and “ready for occupancy” were demonstrated to be ambiguous in the course of trial, and consequently, interpretation was required.

Alternatively, defendants say that if an ambiguity exists it should be construed against the one who drafted the instrument. This is no doubt an accurate statement of a rule of construction where the ambiguity remains despite all efforts to eliminate it. But the rule is to be applied only when other means of construction fail, and that is not this case. Guild Management Co. v. Oxenhandler, 541 S.W.2d 687 (Mo.App.1976). The trial judge was able to determine that the parties never contemplated the two basement rooms would be used for lodging overnight guests, and that finding is amply supported by the evidence. “In ascertaining the intent of the parties it is permissible to consider their situation and the accompanying circumstances at the time the lease was executed.” Ferguson v. Gulf Oil Corp., 382 S.W.2d 34, 37 (Mo.App.1964). Because the two basement rooms were not intended by either of the parties to be completed or furnished as were the other five rooms mentioned in Paragraph 4(a), it follows that all seven rooms were completed as of July 1 and the additional $400.00 rent was owed for the month of July and each month thereafter. Defendants did default in the payment of rent by tendering a check for $1,700.00 on September 1, and the result reached by the trial court was and is correct.

Other questions are raised by defendants concerning the judgment on Count I of the counterclaim, denying enumerated items of damage claimed by defendants. These items of damage were not mentioned in either of defendants’ points relied on, but were discussed only in the argument portion of their brief. We have held that matters not stated under “Points Relied On” will not be considered by this court. Nutz v. Shepherd, 490 S.W.2d 366 (Mo.App.1973).

The final point for our consideration is defendants’ second point relied on. It suggests that the basis for the trial court’s refusal to award punitive damages for eviction under Count II of the counterclaim was an erroneous finding that defendants had failed to pay the total rent due on September 1, 1973. Defendants state: “If the trial court was in error in holding that defendants owed more rent than was tendered, then the court erred in failing to render a judgment on Count II of defendants’ Counterclaim in favor of defendants and against plaintiffs.” We have explained hereinabove that the trial court was in fact not in error in holding that more rent was owed than was tendered by defendants. The eviction by plaintiffs, while wrongful, was provoked by defendants’ failure to tender all the rent due, and so was not such as would justify the imposition of punitive damages.

We find no error, and the judgment of the trial court is therefore affirmed in all respects.

All concur, except GREENE, J., not participating because not a member of the court when case was submitted.


author: FONES, Justice.

text:
    Nellie Frances DUNGAN, Appellant, v. Robert Daniel DUNGAN, Appellee. Evelyn Tolbert OVERALL, Appellant, v. Willie Floyd OVERALL, Appellee.
    Supreme Court of Tennessee.
    April 2, 1979.
    Thad M. Guyer, Memphis Area Legal Services Inc., Covington, for appellant.
    William M. Leech, Jr., Atty. Gen., Jim G. Creecy, Asst. Atty. Gen., Nashville, interve-nor for State.
   OPINION

FONES, Justice.

These two cases were consolidated on appeal to dispose of a common issue. In the wake of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the judiciary has two choices in providing access to the courts for indigent plaintiffs in divorce cases, where the defendant’s residence is unknown and cannot be ascertained upon diligent inquiry. The question is whether the courts should order the State to pay newspapers for service by publication or authorize a less costly method of substitute service of process that satisfies due process of law.

Both plaintiffs sued for divorce in the chancery court of Tipton County upon pauper’s oaths, as provided for in T.C.A. § 20-1629. Both plaintiffs alleged that “the residence of defendant is unknown and cannot be ascertained upon diligent search and inquiry”, giving rise to the necessity of service of process by newspaper publication, in accord with our statutes and rules. See T.C.A. §§ 36-807, 36-808, 21-212(5), 21-214, and T.R.C.P. 4.05.

Plaintiffs, by motion, asked the trial court to order service by publication and that the fifty dollar newspaper publication fee be paid or otherwise discharged by the clerk and master. The trial judge denied the motions on the grounds that the State Constitution prohibited the judicial appropriation of State or county revenues for the payment of the publication costs and that authorization of substitute service of process would be “statutorily or constitutionally infirm” because service of process by publication was, in his opinion, an essential prerequisite to a valid divorce decree..

On appeal, plaintiffs insist that the Due Process Clause of the fourteenth amendment to the federal constitution requires the State to pay the newspaper publication fee or that the court authorize an alternative form of constitutionally permissible constructive service of process. The Attorney General has intervened to defend the constitutionality of the challenged statutes.

In Boddie the indigent plaintiffs in divorce actions were denied access to the Connecticut courts because they were unable to pay court fees and costs of service of process, a statutory condition precedent to filing and obtaining relief.

The Supreme Court, speaking through Mr. Justice Harlan, said:

“Our conclusion is that, given the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship, due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” 401 U.S. at 374, 91 S.Ct. at 784.

The Court limited the scope of its holding as follows:

“[W]e wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants’ indigency and desire for divorce are here beyond dispute. We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, for, as we have already noted, in the case before us this right is the exclusive precondition to the adjustment of a fundamental human relationship.” 401 U.S. at 382-83, 91 S.Ct. at 788.

Since Boddie a number of our sister states have considered the question of whether the courts should order state or county governments to pay newspaper costs or authorize a less costly method of constructive service of process that satisfies constitutional due process requirements.

Under the compulsion of Boddie, some courts have ordered payment of newspaper publication fees to clear the. way for indigent plaintiffs to proceed in divorce cases. We do not think it appropriate to adopt that course in Tennessee. We agree with the observation of the Supreme Court of Washington in Ashley v. Superior Court, 82 Wash.2d 188, 509 P.2d 751, 755 (1973), to the effect that it is one thing for the judiciary to waive clerk’s fees, etc. charged litigants by the courts already existing and functioning with appropriated public funds as required, and quite another thing to order the payment of public money to newspapers for service by publication.

The particular means of making access to courts available to indigents is not mandated in Boddie —only that due process prohibits denial of access solely because of inability to pay state-imposed fees. In fact, the Supreme Court suggested an alternative to service by publication:

“[W]e think that reliable alternatives exist to service of process by a state-paid sheriff if the State is unwilling to assume the cost of official service. This is perforce true of service by publication which is the method of notice least calculated to bring to a potential defendant’s attention the pendency of judicial proceedings. See Mullane v. Central Hanover Bank & Trust Co., [389 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865,] supra. We think in this case service at defendant’s last known address by mail and posted notice is equally effective as publication in a newspaper.” 401 U.S. at 382, 91 S.Ct. at 788.

Several states have pursued that suggested course, and some have found existing statutory language, express or implied, as authority for ordering an alternative method of constructive service of process other than publication. See, e. g., Cohen v. Board of Supervisors, 20 Cal.App.2d 236, 97 Cal.Rptr. 550 (Ct.App.1971); see generally Annot., 52 A.L.R.3d 844 (1973).

We are of the opinion that of the two options open to the courts as a result of the Boddie mandate, constructive service of process by registered mail and posting of notices is the appropriate course for Tennessee. The Attorney General suggests that this Court and the trial courts have implied, if not express, statutory authority to do so, citing T.C.A. §§ 16-102(6), 16-112 and 16-117. We do not choose to rest our authority to promulgate a method of constructive service of process, in these limited circumstances, on those Code sections. We have an affirmative constitutional duty under both the United States Constitution and the Constitution of Tennessee to open the courts to bona fide indigents seeking, in good faith, the judicial dissolution of their marriages. That duty triggers the inherent and statutory supervisory powers of this Court, and we hold that, upon motion, supported by affidavit, trial judges may, in the exercise of sound discretion, order in lieu of publication, that the clerk mail a copy of the complaint and summons by return receipt registered mail to defendant’s last known address and post a copy of the summons at three public places in the county; that the clerk make an entry on the rule docket so showing, and note thereon and file with the record the document returned. The Supreme Court in Boddie expressly sanctioned such a method of substitute service as satisfying federal due process requirements. We find it adequate to comply with Tennessee constitutional due process for the limited purpose of conferring in rem jurisdiction of the marital status.

The affidavit in support of plaintiff’s motion to order that method of constructive service of process, in lieu of publication, shall set forth facts in support of the claim of indigency and provide a full and detailed account of the efforts made to locate defendant including the names and addresses of next of kin, the name and address of defendant’s last known employer and such other information as may be relevant in the circumstances. The issues at the hearing on such motion are the bona fides of plaintiff’s indigency and diligence in seeking to ascertain defendant’s residence and address. The trial judge may require such additional evidence as may be appropriate for an adjudication of those issues.

These cases are remanded to the Chancery Court of Tipton County for further proceedings, consistent with the holding herein.

Costs are to be adjudged one-half against each appellant.

COOPER, BROCK and HARBISON, JJ., and HUMPHREYS, Special Judge, concur.

      . T.C.A. § 20 235(g), the recent addition to the Tennessee long-arm statute (Ch. 715, Tenn.Pub. Acts of 1978) now provides:
      “Any action of divorce, annulment or separate maintenance where the parties lived in the marital relationship within this state, notwithstanding one party’s subsequent departure from this state, as to all obligations arising for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state.”
      But that statute is not available when the residence of the defendant is unknown and cannot be ascertained upon diligent inquiry. T.C.A. § 21-212(5).

      . E. g., Hart v. Superior Court, 16 Ariz.App. 184, 492 P.2d 433 (1971); Deason v. Deason, 32 N.Y.2d 93, 343 N.Y.S.2d 321, 296 N.E.2d 229 (1973); Monroe v. Monroe, 33 Ohio Misc. 223, 294 N.E.2d 250 (1972).

      . See T.C.A. §§ 16 330 — 333.