text:
    Jack N. JANSSEN and Dorothy Janssen, Plaintiffs-Appellants, v. GUARANTY LAND TITLE CO. and General Title Service Corp., Defendants-Respondents.
    No. 39376.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 15, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Sleater & Sleater, Clayton, Suelthaus, Krueger, Cunningham, Yates & Kaplan, P.C., St. Louis, for plaintiffs-appellants.
    Ed Rader, Clayton, for Guaranty Land Title Co.
    Tremayne, Lay, Carr & Bauer, Clayton, for General Title.
   GUNN, Presiding Judge.

Plaintiffs filed a six count petition seeking damages against General Title Service Corporation (General) and Guaranty Land Title Company (Guaranty) arising out of an allegedly defective certificate of title which failed to report a recorded easement. General filed a motion for summary judgment as to count I of plaintiffs’ petition and moved to dismiss all other counts. Guaranty moved to dismiss all counts of plaintiffs’ petition. The trial court ruled favorably on both defendants’ motions. We affirm the rulings in favor of General. With regard to Guaranty, we affirm the trial court’s ruling as to dismissal of all counts except as to ’’count I. And we find that, giving plaintiffs’ petition the benefit of every reasonable intendment, count I of the petition against Guaranty may state a cause of action.

According to plaintiffs, they sought to purchase some real estate in St. Louis County in June, 1962. They had their real estate agent contact Guaranty to examine the title to the property. A certificate of title was issued on June 29,1962 by Guaranty which failed to make reference to an easement for roadway purposes. The plaintiffs discovered the easement in the summer of 1962, shortly after they moved on the property. The certificate of title issued by Guaranty failed to report the roadway easement which had been recorded November 14, 1955. The error apparently was brought about by Guaranty’s reliance on a 1956 certificate of title which had been issued by General for a previous owner of the property. Plaintiffs filed suit against Guaranty on February 14, 1967, claiming $11,000 in damages for loss of value of the property by reason of the easement. In the spring of 1973 plaintiffs purchased the dominant tenement for $13,500 and on February 20, 1973 amended their petition, adding General as a party defendant. General’s involvement in the case stems from a certificate of title dated May 14, 1956 which it had issued for a prior owner and which had omitted reference to the roadway easement. Thus, the germ seed for this law suit was planted when General omitted reference to the roadway easement in the certificate of title dated May 14, 1956. The seedling grew when subsequent certificates of title issued by Guaranty followed the matrix of General’s May 14,1956 certificate by failing to disclose the easement. The suit blossomed when Guaranty issued the erroneous certificate for plaintiffs on June 29, 1962 and reached full bloom with the discovery of the omission in the summer of 1962.

Plaintiffs’ six count petition as amended charges both Guaranty and General as follows: Count I — negligently failing to report and disclose the easement on the certificate of title with resultant damages to plaintiffs; Count II — “deceit” by reason of providing unauthorized legal services and engaging in the unauthorized practice of law in the preparation of legal documents seeking real and personal property; Count III — “negligent representation” — again by reason of unauthorized practice of law; Count IV- — “breach of contract and warranty” by unauthorized practice of law; Count V — “public nuisance” through unauthorized practice of law; Count VI — “deceit, conspiracy to defraud and restraint of trade” by reason of unauthorized practice of law. Plaintiffs sought actual and punitive damages, an order prohibiting General and Guaranty from engaging in the unauthorized practice of law and an accounting of all monies received by defendants in such unauthorized practice.

As to count I for damages for failing to report the easement on the certificate of title, General filed a motion for summary judgment raising the five year statute of limitations provided in § 516.120 RSMo. 1969. The trial court correctly granted General’s motion for summary judgment. Plaintiffs’ evidence was that they discovered the easement in the summer of 1962. They filed suit against Guaranty on February 14, 1967 seeking $11,000 damages as a result of diminution of value to their property by reason of the easement. Action was not brought against General until December, 1973, long after expiration of the five year limitation period. Plaintiffs advert to § 516.100 RSMo. 1969 and argue that they were unable to ascertain their damages until they had purchased the dominant estate and terminated the easement in 1973; that the price tendered for such purchase represented the last ascertainable damage suffered as a result of General’s negligence. The provisions of § 516.100 stating that a cause of action does not accrue until the damage resulting from the wrong is sustained, or is capable of ascertainment, does not change the tenet that when an injury is complete as a legal injury, the period of limitations commences at once. Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977); Chemical Workers Basic Union v. Arnold Sav. Bank, 411 S.W.2d 159 (Mo. banc 1966). The test to determine when a cause of action has accrued is to ascertain the time when plaintiff could have first maintained the action to a successful result. Jepson v. Stubbs, supra; DePaul Hospital School of Nursing, Inc. v. Southwestern Bell Tel, 539 S.W.2d 542 (Mo. App.1976). See also McCandlish v. Estate of Timberlake, 497 S.W.2d 191 (Mo.App. 1973). Plaintiffs were aware of the easement in the summer of 1962 and filed suit against Guaranty within the five year period asserting what we believe to be the proper measure of damages for negligence in failing to disclose a title defect in the title certificate as the difference in the value of the property with and without the stricture. 1 Am.Jur. Abstracts of Title § 26 (1962); 1 C.J.S. Abstracts of Title § lid (1936). See also Anderson v. Boone County Abstract Co., 418 S.W.2d 123 (Mo.1967). The measure of damages was ascertainable

at least in 1967 — if not as early as 1962— and plaintiffs’ suit for damages against Guaranty was $11,000. The fact that they purchased the dominant tenement in 1973, 11 years after the discovery of the defect, is irrelevant to the measure of damages against General, for plaintiffs failed to exercise reasonable diligence to minimize such damages. 1 Am.Jur. Abstracts of Title § 27 (1962). The record is clear that no genuine issue of material fact exists as to the application of the five year limitation period to the claim against General. Hence, the trial court’s action in granting General’s motion for summary judgment is affirmed. We need not consider plaintiffs’ argument that the nature of the easement was ambiguous, as there is no doubt from the record that they were fully aware of it shortly after they purchased their property in 1962.

Our holding that the statute of limitations applies in favor of General is not dissonant with Thorne v. Johnson, 483 S.W.2d 658 (Mo.App.1972), relied on by plaintiffs. The holding here — as in Thorne —is that the limitations statute begins to run from the time the damage is sustained and capable of ascertainment. The damages to plaintiffs were ascertainable more than five years prior to the case being filed against General, whereas in Thorne, they were not. Ruling as we do that plaintiffs’ claim against General is barred by limitations, we do not consider the issue of privity between the two parties. See Anderson v. Boone County Abstract Co., supra; State v. Boone County Abstract Co., 432 S.W.2d 305 (Mo.1968), and cases cited therein.

Plaintiffs complain of the trial court’s dismissal of counts II through VI, which in desultory and fulsome detail charge both General and Guaranty with the unauthorized practice of law. Defendants — so charge plaintiffs — are not authorized to practice law but collect fees in consideration of their “legal” opinions under false pretenses. By virtue of accepting their money, plaintiffs argue, the defendants assumed a fiduciary duty but misrepresented the status of the property and led the plaintiffs and their predecessors in interest to believe that the defendant title companies were authorized to perform legal services. Plaintiffs, for themselves and on behalf of their predecessors in title, claim restitution of all fees paid by them and collected by the defendants in this regard. Further, plaintiffs seek imposition of a constructive trust as to the fees collected and punitive damages of $1,000,000.

Plaintiffs cite Supreme Court Rule 5.25 in support of their theory of recovery, the relevant language reading:

“No provision of Rule 5 shall limit the right of any individual to seek any remedy afforded by law, nor shall this Rule constitute an exclusive method for regulating the practice of law.”

Rule 5 deals generally with complaints and proceedings arising out of the practice of law and provides the procedure for investigating charges against persons, firms, or corporations accused of illegally practicing law. The intendment of Rule 5 and the procedures thereunder is to protect the public and those charged with the administration of justice from individuals who are not qualified and duly licensed attorneys; to maintain the integrity of the courts and the honorable profession of the practice of law. The main purpose is not punishment and certainly not punishment through the device of punitive damages. In re Mattes, 409 S.W.2d 54 (Mo. banc 1966); Clark v. Reardon, 231 Mo.App. 666, 104 S.W.2d 407 (1937). See also, In re Houtchens, 555 S.W.2d 24 (Mo. banc 1977). Placed in its proper context, Rule 5.25 should be interpreted to preserve traditional remedies at law for individuals who are harmed by unscrupulous lawyers or by persons acting in an unauthorized legal capacity. Such dios-es in action may be based, for example, on a theory of fraud, or of negligence. But plaintiffs may not bootstrap the injury suffered by virtue of a defective title into a cause of action for the unauthorized practice of law.

Supreme Court Rule 52.01 requires that a civil action “be prosecuted in the name of the real party in interest.” The purpose of the Rule is to enable those who are directly interested in the subject matter of the suit and are entitled to reap the benefits thereof to be those who maintain the action. Kaufman v. Henry, 520 S.W.2d 152 (Mo.App.1975). To warrant standing as a party, the prospective plaintiff must have some actual and justiciable interest susceptible of protection through litigation. In the interest of D.M.H., 516 S.W.2d 785 (Mo.App.1974). Plaintiffs simply have no standing to prosecute; their interest in the purity of the legal profession is no greater than that of the public at large. Consequently, counts II through VI, all tied inextricably to plaintiffs’ ability to bring a substantive suit based on the illegal practice of law, were properly dismissed as to both defendants.

We now hark back to count I of plaintiffs’ petition as it relates to Guaranty — the action for damages for negligently failing to include the easement in the certificate of title. We find that the trial court’s action sustaining Guaranty’s motion to dismiss count I must be reversed and the case remanded for further consideration of that count as to Guaranty. Although Guaranty has not submitted a brief, the basis for its motion appears to be that plaintiffs destroyed their cause of action by admitting they had only requested a continued title search rather than an original title examination. Guaranty, therefore, claims that it could not be held responsible for the omission of the easement in General’s earlier title certificate and was justified in relying on its accuracy. The pleadings do not support Guaranty’s argument. Plaintiffs alleged that Guaranty was employed to examine the title and their interest in the property they were purchasing. They state that what they received and paid for was a certificate of title “. . . describing said parcels of real estate and certifying that they had continued from December 29, 1958, the date of a preceding certificate, the examination of the title to the property. . ” The nature of plaintiffs’ request and whether the certificate they received conformed to that request presents question of fact to be resolved at trial. We must consider whether the amended petition, when its averments are accorded every reasonable and fair intendment, stated a claim upon which relief might be granted. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625 (Mo.App.1975). Without deciding whether Guaranty would be relieved of responsibility for General’s earlier deletion if plaintiff did in fact request only a continued search, we hold that count I of the petition stated a cause of action for negligence as to Guaranty. Slate v. Boone County Abstract Co., supra; Thorne v. Johnson, supra.

A final matter we consider is General’s motion for damages for frivolous appeal under Rule 84.19. After reviewing the record, we believe that the motion should be denied. City of Perryville v. Lukefahr, 558 S.W.2d 301 (Mo.App.1977).

Judgment affirmed in all respects as to General Title Service Corporation. Judgment as to Guaranty Land Title Company reversed and remanded as to count I of plaintiffs’ petition but affirmed in all other respects.

WEIER and KELLY, JJ., concur.

      . “Q. Have you ever been in the office of Guaranty Land Title Co.?
      A. [Janssen] Yes, I was.
      Q. This was after the deal was closed.
      A. Yes, that is when I discovered there was an easement.
      Q. When was that?
      A. Oh, I don’t remember exactly, it was shortly after we moved into the house.
      * * * * * *
      Q. So, if I understand you, Mr. Janssen, you moved in approximately 60 days after you bought the property; would that be about right?
      A. Boy, that would be a guess, strictly a guess.
      Q. Now, if I tell you that the deed to you and your wife is dated June 29, 1962, does that refresh your memory any as to when you moved in?
      A. That sounds logical; that sounds like it could be.
      Q. You would say, then, that you moved in about 60 days after that approximately?
      A. Approximately, yes.”

      . For a discussion on an abstractor’s liability for damages for title defect, see Annot., 28 A.L.R.2d 891 (1953).

      . For discussion of the application of the limitations doctrine against an abstractor, see 38 Mo.L.Rev. 685 (1973).

      . It should be noted that a statutory remedy does exist for persons who have tendered fees to parties engaged in the illegal practice of law. Section 484.020(2), RSMo. (1969) provides for payment of treble the amount of fees wrongfully collected from a potential plaintiff if the cause is prosecuted within two years. Plaintiffs, of course, are precluded from utilizing this remedy, as the statute of limitations has long since tolled.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Leo W. BRANSON, Respondent, v. Keith M. JORDAN, Appellant.
    No. 39556.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 15, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      John H. Marshall, Robert H. Burns, Clayton, for appellant.
    Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Defendant Keith M. Jordan appeals from a $9,000 judgment in favor of plaintiff Leo Branson. Defendant claims error in a question asked him on cross examination and also in taxing the cost of a supplemental transcript. We affirm the judgment and deem the appeal frivolous, remanding the case with instructions to add a penalty. (Rule 84.19).

Defendant does not challenge the sufficiency of plaintiff’s evidence, plaintiff’s submission on the grounds of excessive speed and violating a traffic signal, nor the amount of damages. A brief summary will suffice.

Late at night, in cold inclement weather, plaintiff was driving his pickup truck south on the Earth City Expressway toward its controlled intersection with River Glen, on which defendant was driving west. Facing plaintiff was a flashing amber light and facing defendant was a flashing red light. The vehicles collided at the intersection. Plaintiff estimated defendant’s speed at 65 miles per hour; defendant put it at 45 miles per hour. Without appreciably slowing (which defendant attributed to patches of ice), he ran past the red flashing light into collision with plaintiff’s pickup. In the magistrate court defendant pled guilty to “careless and imprudent driving; reason, speed too fast for conditions.”

Defendant’s first point relied on; “The Court erred in overruling appellant’s motion for mistrial after respondent’s attorney accused appellant on cross-examination, ‘Now, Mr. Jordan, you have also pleaded guilty or been convicted of some other . . ’ Since the convictions which respondent’s attorney referred to were municipal ordinance violations for speeding and violations of stop signs which were inadmissible and said question in its form was prejudicial to appellant.” Defense counsel interrupted the question and at the bench announced he had no knowledge of defendant having been convicted of a “state misdemeanor.” Plaintiff’s counsel responded by proffering to show defendant had twice been convicted of “state misdemeanor convictions for speeding.” The trial court sustained the defense objection to the quoted question but denied defendant’s motion for a mistrial, which ruling defendant now challenges.

Defendant’s first point is without merit. He got more than he was entitled to when the court, in light of defendant’s proffer, sustained his objection to the question. That favorable ruling could not possibly be ground for granting defendant a mistrial.

By defendant’s second point he objects to being taxed $54.60 for costs of the supplemental transcript, composed of the opening statements and closing arguments which defendant omitted from the original transcript. Defendant contends these items do not concern points raised on appeal. True, but the omissions did deal with evidence of defendant’s drinking alcoholic beverages on the night of the collision; in four paragraphs of his motion for a new trial defendant challenged the trial court’s evi-dentiary rulings on the subject of defendant’s drinking. On this appeal defendant abandoned these points on drinking, but when the transcript was prepared evidence of defendant’s drinking, challenged by him in his motion for new trial, was a live issue. Beyond doubt plaintiff was entitled to a transcript responsive to defendant’s motion for a new trial. Defendant breached his duty to plaintiff by his transcript omission and the court properly taxed defendant for the cost of the improperly omitted parts.

In sum, we conclude defendant’s appeal was frivolous. By his first point defendant challenges the trial court’s denial of a mistrial for a ruling that was in defendant’s favor. By his second point defendant challenges the trial court’s order that he pay for part of the transcript clearly relevant to defendant’s motion for a new trial. Rule 84.19 declares: “If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper.” A frivolous appeal is “one presenting no justiciable question and so readily recognizable as devoid of merit on face of record that there is little prospect that it can ever succeed.” State ex rel. State Highway Commission v. Sheets, 483 S.W.2d 783 [4, 5] (Mo.App.1972). To avoid the penalty “the questions raised on appeal must be at least fairly debatable.” Brooks v. General Motors Assembly Division, 527 S.W.2d 50 pill] (Mo.App.1975). Here defendant’s appeal fails to meet that test.

We hold defendant’s appeal was an abuse of judicial process. It was frivolous and cast an unwarranted burden on plaintiff and his counsel. We consider that a proper penalty for this is $1,000. The cause is remanded to the trial court with instructions to amend its judgment by increasing the amount of plaintiff’s judgment by the sum of $1,000.

SMITH and McMILLIAN, JJ., concur.

      . The question, had plaintiff been allowed to complete it, was admissible to impeach defendant by showing misdemeanor convictions. Section 491.050, RSMo. 1969; Fisher v. Gunn, 270 S.W.2d 869 [9] (Mo. 1954); Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760  (Mo.App.1974).


author: SNYDER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael James KUHRTS, Defendant-Appellant.
    No. 39088.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Aug. 15, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeff Schaeperkoetter, Carson W. El-liff, Asst. Atty’s. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., David B. Tob-ben, Asst. Pros. Atty., Union, for plaintiff-respondent.
   SNYDER, Judge.

Defendant Michael James Kuhrts was convicted by a jury of the sale of a controlled substance (§ 195.020, RSMo Supp. 1975 ) and sentenced to five years’ imprisonment. He appeals.

As grounds for reversal, appellant contends that the trial court erred in: (1) refusing to suppress the testimony of a state trooper and evidence concerning lysergic acid diethylamide (LSD) “seized” from appellant; (2) ordering appellant to comply with certain disclosure requests; (3) admitting into evidence a bag of white powder received from appellant; (4) submitting verdict directing Instruction No. 5 to the jury; (5) denying appellant’s motions for a directed verdict; and (6) permitting a state trooper to state that he feared for the safety of an informant.

A Missouri State Highway Patrol trooper was working undercover on March 4, 1975 in Gasconade and Franklin Counties. He arrived in Union about 8:45 p. m., picked up his “confidential informant” and two other men and drove to a local fast food drive-in where they met the appellant. One of the occupants of the car started talking with appellant about drugs and appellant got into the car. The appellant brought up the topic of mescaline, and said “Patty” had some for sale at $45 an ounce. Appellant said he could get some for the trooper and directed him to drive to Patty’s. When they arrived, appellant and another of the car’s occupants (not the trooper) went into an apartment building. The trooper had given appellant $45 to make a purchase for him. When appellant and the other person returned to the car, appellant handed the trooper a bag of white powder which was subsequently determined to contain LSD. Appellant was arrested for the sale of LSD some eleven months after the incident. His trial and conviction followed. Other necessary facts will be related in the discussion of issues raised on appeal.

Appellant first claims error in the refusal of the trial court to suppress the testimony of the state trooper and the evidence of the bag of white powder (state’s Exhibit No. 1). The point has not been preserved for review either as to the suppression of evidence of state’s Exhibit No. 1 or the testimony of the trooper.

Appellant’s motion to suppress does not mention the state trooper. It refers only to an arrest by Franklin County officers and an allegedly illegal seizure at the time of the arrest. However, at the hearing on the motion before trial and again immediately before trial, appellant argued orally that the state trooper’s testimony as well as the “items of evidence seized” (presumably the bag of white powder) should be suppressed. As grounds for suppression appellant asserted that the state trooper had no statutory authority to act as an undercover agent under the circumstances. Nowhere in the record is there a specific motion by appellant, either oral or written, to suppress the trooper’s testimony, but for appeal purposes appellant’s argument at the pretrial hearing will be considered as a motion to suppress the testimony of the trooper.

However, the objections made during the trial to the testimony of the trooper were that his statements were irrelevant, immaterial and self-serving declarations. The court overruled the objections. Appellant raised no objections at trial based on the trooper’s alleged lack of authority to carry on investigative activities in Franklin County. Then, in his motion for a new trial, appellant returned to the claim that the trooper’s testimony as to state’s Exhibit No. 1 should have been suppressed because of his lack of statutory authority to act

A point raised on appeal which is not based on the theory of the objection made at trial is not preserved for review. State v. Carter, 557 S.W.2d 47 (Mo.App. 1977); State v. Washington, 320 S.W.2d 565 (Mo.1959). “In order to preserve for appellate review an objection to the admission of testimony the objection stating the grounds must be made at the time the evidence is sought to be introduced, and the same objection and grounds must be set forth in the motion for a new trial.” State v. Hernandez, 325 S.W.2d 494, 496 (Mo.1959). Here the objections made at trial, irrelevancy, immateriality and self-serving declarations, were not the same as the reasons assigned for error in the motion for a new trial and the point as to the trooper’s testimony is not preserved for review.

Appellant argues at length, as a basis for his objection to the introduction in evidence of state’s Exhibit No. 1, that the Missouri State Highway Patrol has limited powers of search and seizure. His motion to suppress alleges his arrest by Franklin County officers on March 4, 1975. In fact, appellant was arrested some eleven months later. The motion further alleges that the Franklin County officers did not have a warrant, did not witness the appellant in violation of law and had no probable cause to arrest appellant. The motion then goes on to say that “certain articles” were taken from the appellant pursuant to an illegal and unconstitutional arrest, an allegation far afield from the facts.

Appellant’s objection to state’s Exhibit No. 1 at trial was as follows:

Judge, we would object for the reason that there has been, first of all, no foundation laid for it being admitted in evidence and, secondly, no quantitative analysis of this particular supplement—of this—of this State’s Exhibit No. 1, for the reason that it has not been properly examined or is there any proper quantitative analysis of this object, State’s Exhibit No. 1.

As grounds for his motion for a new trial, appellant asserts that the evidence of the bag of white powder should be suppressed because the state trooper did not have authority to carry on law enforcement activities in Franklin County under the circumstances. Thus, one reason for suppression of the evidence is given by appellant in his motion to suppress, a different reason is given for his objection at trial, and still a third reason is advanced in his motion for a new trial. This point also is not preserved for review. State v. Hernandez, supra; State v. Washington, supra; State v. Carter, supra. Also see State v. Brookshire, 353 S.W.2d 681 (Mo.1962).

Even if appellant had properly raised this point on appeal, it would be ruled against him. There was no search and seizure of state’s Exhibit No. 1. It was not taken from appellant at the time of his arrest, which occurred some eleven months after the bag came into possession of the trooper. The trooper purchased it from appellant and at that time acquired the right to possession and control of the substance. Such a purchase is not a search or seizure. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); State v. Hughes, 519 S.W.2d 18 (Mo.1975); State v. Flynn, 519 S.W.2d 10 (Mo.1975).

Appellant next urges that the trial court erred in overruling his motion for a continuance and in ordering him to respond to paragraphs two and five of the state’s request for disclosure. The argument portion of his brief is directed only to the state’s request for disclosure. The denial of the motion for a continuance is not mentioned, nor are any authorities cited to support the granting of a continuance. Therefore, only the matter of the request for disclosure will be considered.

The challenged paragraphs in the state’s request for disclosure are framed in the language of Rule 25.34(A)(2) and (5). On October 29, 1976, appellant confessed the state’s request for disclosure. On December 12,1976, the morning of the trial, appellant attempted to withdraw his confession of the disclosure request. The court refused to allow him to withdraw his confession and overruled his objections to paragraphs two and five.

The two paragraphs objected to by appellant read as follows:

(2) The names and last known addresses of persons, other than Defendant, who Defendant intends to call as witnesses at any hearing or at trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements;
(5) Any intent of the Defendant to rely on the defense of alibi, and specific information as to the place at which the accused claims to have been at the time of the alleged offense, together with the names and addresses of the witnesses by whom he proposes to establish such alibi.

Appellant cites only Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) in support of his objection. There the United States Supreme Court held that due process “forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner . .” Wardius is distinguishable. Missouri rules allow criminal defendants liberal reciprocal discovery rights. Oregon did not.

Further, appellant has not stated in his brief any specific way in which he would be prejudiced by the disclosure of the requested information. A defendant lacks standing to challenge the constitutionality of the rule requiring a defendant to disclose certain information to the state in the absence of a showing that he was prejudiced by the operation of the rule. State v. Toliver, 544 S.W.2d 565 (Mo. banc 1976). This point is ruled against appellant.

Appellant next contends that the trial court erred in admitting into evidence state’s Exhibit No. 1 because there was no proof that LSD is a scheduled narcotic or that the particular sample taken from defendant was, in fact, LSD and came within the prohibition of the law forbidding the sale of scheduled narcotics.

Appellant advances two reasons to support his claim of error. First, he says that no evidence was presented to the court to prove that LSD is a controlled substance and that no request was made to the court to take judicial notice that the statute lists LSD as a controlled substance.

A trial court may take judicial notice of a state statute even though no request is made by one of the parties. 31 C.J.S. Evidence § 16; Hutcherson v. Thompson, 343 Mo. 884, 123 S.W.2d 142 (1938); Moulder v. Webb, 527 S.W.2d 417 (Mo.App.1975). Appellant cites no cases in support of his position and his argument on this issue is rejected.

Second, appellant attacks the chemical analysis of the white powder in state’s Exhibit No. 1 because no quantitative test was performed and there was no testimony as to the exact amount of LSD in the substance.

The weight of the evidence is not a matter reviewable by an appellate court which determines only whether there was substantial evidence to support a verdict. State v. Morgan, 453 S.W.2d 932 (Mo.1970). Both parties cite State v. Young, 427 S.W.2d 510 (Mo.1968). But Young supports the state’s position. The appellant in Young had been convicted of possession of a narcotic drug. The supreme court affirmed, denying appellant’s contention that the trial court should have directed an acquittal on the ground that the amount of heroin found in his possession was “unsubstantial.” The court cited a Wisconsin case, State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965), as representative of decisions interpreting Section 2 of the Uniform Narcotic Drug Act, after which former Section 195.020 had been modeled, to prohibit possession of even “a modicum of an illegal drug.” Young, supra, 512. The Dodd court had noted the possibility that in a given case “so small a quantity of a narcotic might be present as to . . . indicate only that there had been a prior possession of a narcotic but which could not be said reasonably to constitute the object of possession.” However, it held that possession of a “discernible amount” of heroin, “sufficient to use in the performance of chemical tests to determine not only its presence but its nature” was sufficient to sustain a conviction. Dodd, supra, 137 N.W.2d 465, 469. The Young court worked the reasoning of the Dodd decision into an evidentiary context, finding that the appellant failed to establish “that the quantity of heroin . . . was so ‘infinitesimal’ as to be immeasurable . .” Young, supra, 512.

Section 195.017.2(4) which lists controlled substances reads in part: “Any material, compound, mixture or preparation which contains any quantity of the following . (i) Lysergic acid diethylamide; . . .” (Emphasis added). The statute then prohibits possession of “any controlled or counterfeit substance.” § 195.020.

Appellant asserts that there is substantial doubt as to the accuracy and reliability of the tests performed by the state chemist, but adduced no evidence to support his assertion. The qualifications of the Missouri State Highway Patrol’s forensic chemist were not challenged. The chemist testified that he analyzed the powder from the bag which was state’s Exhibit No. 1. He described the tests and analysis which were made and said the bag contained LSD. On cross-examination he admitted that the material in the bag was not one hundred percent LSD and that no quantitative analysis had been performed on the material. The bag was admitted into evidence over the objection of appellant.

The Missouri Supreme Court in State v. Jefferson, 391 S.W.2d 885, 890 (Mo. 1965) said, “We conclude that the possession of any amount, even a modicum, of amphetamine is within the prohibition of the statute. This can be the only reasonable interpretation in view of the evil which the general assembly seeks to abate.” Jefferson is similar in that the chemist for the police department there testified that his analysis revealed the presence of amphetamine in water solution but that no quantitative analysis had been made. The court said it was not necessary to prove there was a quantity sufficient to have an exciting effect on the central nervous system of a human or animal. The same logic would apply here. The bag contained LSD. There is no opposing evidence to suggest only a trace of the drug or merely a “prior possession.” The evidence instead was a bag containing a substantial amount of white powder. There was proof of the presence of LSD. Even a modicum of the drug in possession is sufficient for conviction. Young, supra. State’s Exhibit No. 1 was properly received in evidence.

Appellant contends that it was error to submit verdict directing Instruction No. 5 which he has coupled for purposes of argument with his claim that the evidence was insufficient to sustain a conviction.

Appellant’s attack on the instruction alleges error because the instruction assumes: (1) that the substance in question was LSD; and (2) that defendant had sufficient knowledge of the drug and intent to sell it. If, in fact, the instruction assumed without evidentiary support that the substance in the bag was LSD, appellant’s contention would be valid. However, there was no assumption. The instruction was supported by the testimony of the forensic chemist. There was sufficient evidence for the jury to find that the substance in the bag was in fact LSD.

There was also enough evidence to support a finding by the jury that defendant had the requisite knowledge and intent. The testimony of the trooper that he gave appellant the money and received in exchange from appellant the bag which contained'LSD justified the submission of the portion of the instruction relating to appellant’s knowledge and intent.

Appellant’s argument that it was error to submit the instruction because it ignored a defense supported by the evidence was not presented to the trial court in appellant’s motion for a new trial. Points relating to instructions which are not presented to the trial court in a motion for a new trial are not preserved for appellate review unless the trial court fails to instruct the jury on the law so as to cause manifest injustice. State v. Grebe, 512 S.W.2d 409 (Mo.App.1974). There was no manifest injustice in the court’s instructions here in view of the evidence of the sale of the LSD by appellant. The defense claimed by the appellant was simply his denial of the sale, a refutation of the testimony given by the state trooper. The instruction was supported by the evidence and properly informed the jury of the offense charged.

There was no error in the overruling of appellant’s motions for judgment of acquittal. The jury verdict was amply supported by the evidence of the sale and the identification of the substance sold as LSD. In determining the sufficiency of the evidence to sustain a conviction, the evidence must be viewed by the appellate court in the light most favorable to the state and the state is to be given the benefit of all reasonable inferences. State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975); State v. Riley, 536 S.W.2d 501 (Mo.App. 1976). Unfavorable evidence is not considered. State v. Poor, 533 S.W.2d 245 (Mo. App.1976).

Appellant contends for the first time in his brief that venue was not established. Venue was challenged neither at trial nor in the motion for a new trial. Therefore, the point has not been preserved for review. State v. Crawley, 501 S.W.2d 31 (Mo.1973).

Appellant finally claims the court erred in not declaring a mistrial after a remark by the trooper that he was worried about the personal safety of an informant after the trooper had disclosed the informant’s name in obedience to a court order.

There had been testimony before the jury and a discussion at the bench out of the hearing of the jury about whether or not the trooper who was on the witness stand should divulge the name of the informant. The court finally ordered the witness to give the name to the court and counsel. The record is not explicit but it appears that the court intended for the information to be given out of the hearing of the jury. Appellant objected to this and the court then instructed the trooper to give the name of the party. The following testimony was then given for the jury.

THE WITNESS: Well, sir, the name of the subject — subject’s name is Rick Pointer.
THE COURT: You tell him I forced you to.
THE WITNESS: Sir?
THE COURT: You tell Rick I forced you to.
THE WITNESS: Well, sir, I’m just worried about his personal safety is all.
MR. SCHWARTZ: Oh, Judge, I’m going to object to this. That’s highly improper.

Appellant’s counsel did not request that a mistrial be declared or that the comment be stricken but continued questioning the witness about the address of the informant.

The name was disclosed at the insistence of appellant. The reference to personal safety by the witness was a voluntary statement in response to the remark made by the court. There was no attempt to connect appellant with the danger to the personal safety of the informant.

The cases cited by appellant to support his claim of error are distinguishable on the facts. The prosecutor included prejudicial remarks concerning threats to witnesses in his opening statement and later questioned a witness about threats without connecting them to the defendant in State v. Hicks, 535 S.W.2d 308 (Mo.App.1976). Repeated and persistent inflammatory remarks in a closing statement after objections were sustained were made by the prosecutor in State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524 (banc 1947). Hicks and Tiedt were remanded, but in State v. Swindell, 271 S.W.2d 533 (Mo.1954) a conviction for rape was affirmed in spite of the fact that the prosecu-trix cried and became hysterical on the witness stand.

Appellant here was the one who insisted that the evidence be given to the jury. The witness’ remark concerning personal safety was not elicited by the state but by the court. Although appellant objected, he requested no further relief. When such testimony is given, and there is no question but that the words should not have been spoken by the witness, it is up to appellant to ask for a mistrial. An appellate court cannot find error on the part of the trial court for failing to take an action which was not requested. State v. Harms, 507 S.W.2d 29 (Mo.App.1974). The trial court must be given the first opportunity to correct its own errors. State v. Manns, 533 S.W.2d 645 (Mo.App.1976).

The remark and the circumstances under which it was made were unfortunate. But, there was insufficient prejudicial effect to justify a finding that the trial court abused its discretion in not declaring a mistrial sua sponte.

Objectionable testimony which might have been prejudicial was given in State v. Parker, 476 S.W.2d 513 (Mo.1972). The court sustained a motion to strike but refused to declare a mistrial. The conviction for burglary and stealing in conjunction with burglary was affirmed, the supreme court saying, at pages 515 and 516:

[T]he declaration of a mistrial is a drastic remedy and should be granted only in those circumstances when the incident is so grievous that the prejudicial effect can be removed no other way. (cites omitted). The remarks objected to were volunteered by the witnesses. Errors of this nature cannot always be avoided, but when they do occur it is the duty of the trial court, who has observed the incident and is in a better position than an appellate court to evaluate the prejudicial effect, if any, to determine the possibility of its removal by action short of a mistrial. In this respect the trial court necessarily must be vested with broad discretion. In the exercise of that discretion, the trial court concluded that in this case a mistrial was not required. We do not know whether the trial court would have instructed the jury to disregard the testimony or have taken other remedial action if requested, but no such relief was requested, and we cannot assume that it would not. The function of an appellate court is to determine whether as a matter of law the trial court abused its discretion in refusing a mistrial. We rule that it did not.

The trial court did not abuse its discretion in failing to declare a mistrial.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . All statutory references are to RSMo Supp. 1975 unless otherwise noted.

      . In 1971, §§ 195.010 to 195.270, RSMo 1969 were repealed, and the present §§ 195.010 to 195.320 RSMo Supp.1975, modeled after the Uniform Controlled Substances Act, were substituted. The present § 195.020 contains essentially the same language with which the Young court was concerned.

      . Instruction No. 5 reads as follows:
      If you find and believe from the evidence beyond a reasonable doubt:
      First, that on or about March 4, 1975, in the County of Franklin, State of Missouri, the Defendant sold a drug known as Lysergic Acid Diethylamide, or LSD, and
      Second, that Defendant was aware of the character of the drug and intentionally and knowingly sold it,
      then you will find the Defendant guilty of the sale of a controlled substance.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the Defendant not guilty of that offense.
      If you find the Defendant guilty of that offense, you will fix his punishment at a term in the custody of the Missouri Division of Corrections for not less than five years nor more than life imprisonment.


author: STEWART, Presiding Judge.

text:
    David DOYLE, Husband of Janet E. Doyle, Deceased, and Janet Doyle and Wanda Doyle, minor children of Janet Doyle, Deceased, By and Through David Doyle, their father and next friend, Plaintiffs-Respondents, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellant.
    No. 37925.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 22, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Gerald D. Morris, St. Louis, for defendant-appellant.
    Morton K. Lange, Cuba, for plaintiffs-respondents.
   STEWART, Presiding Judge.

This appeal arises out of a suit under the provisions of the wrongful death act, 537.-080 et seq. Plaintiffs are the surviving husband and two minor children of Janet E. Doyle (Janet) who died as a result of injuries sustained in a collision between Janet’s northbound automobile and a westbound train of defendant, St. Louis-San Francisco Railway Company (Railroad). Plaintiffs sued the Railroad, its engineer Morton, and its two brakemen Mullen and Wilson. The court sustained the motions of defendants Mullen and Wilson for a directed verdict at the close of plaintiffs’ case. The jury found in favor of the defendant engineer. A jury verdict and judgment in the amount of $75,000.00 was entered against Railroad.

The primary issue before us is whether plaintiff was guilty of contributory negligence as a matter of law. As required the facts will be stated in the light most favorable to the verdict. Weber v. Missouri-Kansas-Texas R. R., 519 S.W.2d 307, 310 (Mo.App.1975). The fatal accident occurred on May 22, 1974, at about 6:15 a. m. at the Highway P railroad crossing just outside the east edge of Cuba, Missouri. Railroad has two sets of tracks at this crossing that run generally east and west. The southern most set of tracks are the mainline tracks and the northern most are switch or passing tracks. The passing tracks are 9 feet to the north of the mainline, and are IOV2 inches lower in elevation. Highway P is about 17 feet wide but narrows to 14 feet at the crossing. Wooden planks are set within each set of tracks at the crossing. Old Highway 66 now ZZ is about 41 feet north of the crossing and parallels the railroad tracks. There is a gravel road running west from Highway P that parallels the tracks about 11.5 feet south of the southern most track. This road is about 17 feet wide. There are no traffic controls at this “T” intersection.

Highway P originates a little over 1500 to 1600 feet south of the crossing forming a “T” intersection with Highway PP. After moving northwardly from PP, Highway P curves to the right; the curve ends about one-half block south of the crossing. Vegetation along P is very heavy and the crossing cannot be seen until the northbound driver has passed through the curve and reaches the Railroad’s right of way.

The right of way extends southward from the mainline a distance of about 50 feet. It is marked by a no trespassing sign. Both parties concede that a northbound driver has no vision to the east until after he has passed the right of way line. There is extremely heavy vegetation to at least that point. There is a crossbuck indicating the presence of the crossing about 16 feet south of the south rail of the mainline track. From plaintiffs’ evidence the jury could have found that there were weeds and other growth between the right of way line and the crossbuck which reached a height of 4½ feet. There was testimony that one could see to the east after passing the crossbuck. There was also testimony from which the jury could find that a person going north could not see a train coming until he was within six feet of the track.

Because of the drop in elevation in the crossing and its general nature vehicles crossed at speeds of 3 to 6 miles per hour.

The vehicle being driven by Janet was a small foreign car. Janet’s eye level while seated in the car would be 43 inches above the surface of the road.

The train consisted of four locomotive units and 97 ears. The lead locomotive was 60' 2" long, 14' 7" in height and 10' 7" wide. There was an overhang of 35½ inches. The train had a time table but it was not closely adhered to. In fact, during the month of May it arrived at the Cuba switch anywhere from 4:48 a. m. to 2:00 p. m.

Janet and her sister, Charlotte Pember-ton, were employed by a shoe company in Owensville, Mo. They were long time residents of the area and traveled over the crossing every day on their way to and from work. On the morning of the accident Janet and her sister dropped their children at their mother’s home on Highway PP near its intersection with Highway P. They then proceeded north on P to pick up Kathy Dotson who also rode to work with Janet. Kathy lived in a subdivision on the north side of the crossing. When Janet was about 700 feet from the crossing she was seen to be driving at a speed of about 15 m. p. h. The witness lost sight of her in the curve just before the crossing. There is no testimony on the part of plaintiffs as to Janet’s speed as she approached the crossing or immediately before the accident. As the train approached the crossing it was on a decline of 7 inches per 100 feet from a point about 6,000 feet east of the crossing. As it reached the crossing it was going about 45 to 47 m. p. h. The left front corner of the engine at the grabiron and the right front corner of the car collided. The car was dragged to the west and into a ditch. After the accident Janet’s car was facing west with the rear of the car about 30 feet west of Highway P. There were skid marks that commenced about 11½ feet south of the mainline. They continued north for about 4 feet and then turned abruptly to the west and off the west side of the road. The lead engine of the train came to a stop about three-quarters of a mile west of the crossing. The engineer who was seated on the right side of his unit did not see the automobile. He was advised of the accident by his fireman. Both Janet and her sister died as a result of injuries received in the accident.

There was evidence from which the jury could find that neither the train’s whistle nor the train’s bell was sounded.

Railroad produced evidence to the contrary which only served to create factual issues for the jury. There was evidence on the part of Railroad by its employees and independent witnesses that the train whistle had been sounded. The engineer testified that he gave the normal whistle which was two shorts and a long and two short blasts before the crossing. The fireman testified that they gave two longs, a short and a long. Railroad’s fireman who was on the left side of the cab of the engine testified that he saw the car that was driven by Janet when it came from behind the shrubs at the right of way fence about 50 feet from the tracks; that the train was then going 43 to 44 m. p. h. and the nose of the train was about 50 to 60 feet from the crossing; that Janet’s car was going about the same speed. He testified that the car did not appear to slow or to swerve. It appeared to him that the impact was at the right front comer of the car and the left front of the engine “where the grabiron was.”

Plaintiffs’ case was submitted to the jury on the failure to maintain the right of way at the crossing so that it was reasonably clear of vegetation so as not to materially obscure approaching trains from the traveler’s view on the highway as provided by law, or that defendant failed to give the statutory warning by bell and whistle. Although Railroad, as discussed hereafter, takes issue with the form of the instruction, it does not contend that plaintiffs did not make a submissible case of primary negligence.

Railroad’s primary contention is that the court erred in failing to sustain its motion for directed verdict because plaintiffs’ decedent Janet Doyle was contributorily negligent as a matter of law.

It is true as Railroad states that plaintiffs’ decedent as the operator of a motor vehicle was required to exercise the highest degree of care in the operation of her automobile. She had a duty to look at a place where it was reasonably effective to do so, and a failure to look or to see what is plainly visible if she performs the duty to look would, especially where she is familiar with the tracks, constitute contributory negligence upon her part. Fugate v. St. Louis-San Francisco Railway Co., 348 S.W.2d 718, 723 (Mo.App.1961).

There was evidence on behalf of Railroad from which a jury could believe that Janet was contributorily negligent therefore we do not, as plaintiffs urge, indulge a presumption of due care on the part of Janet. However, plaintiffs were not required to prove that Janet was exercising the highest degree of care, rather the burden was upon Railroad to prove its affirmative defense of contributory negligence. State ex rel. Thompson v. Shain, 349 Mo. 1075, 163 S.W.2d 967, 973 (banc 1942).

Before a plaintiff may be convicted of contributory negligence as a matter of law such negligence “must appear from evidence adduced by [plaintiff] or from evidence which he concedes to be true or from binding documentary evidence, or by proof of facts and circumstances by defendant which leave room for no other reasonable inference, or from a combination of them.” Pipes v. Missouri Pacific Railroad, 338 S.W.2d 30, 33 (Mo.banc 1960). Contributory negligence as a matter of law is seldom established by defendant’s oral testimony. State ex rel. Thompson v. Shain, supra. “If reasonable men may honestly differ with respect to the inferences to be drawn from such facts, then the question whether the driver exercised the care required for his own safety is for the jury.” Houston v. Chicago, Rock Island & Pacific Railroad, 475 S.W.2d 4, 7 (Mo.1972); Zumault v. Wabash Railroad, 302 S.W.2d 861, 862-863 (Mo. 1957).

It has often been said, most recently in Walters v. Terminal Railroad Ass’n, 569 S.W.2d 228 (Mo.App.St.L.Dist., 1978), that the legal principles with respect to the issue of contributory negligence are well settled; the difficulty is in the application of the law to particular factual situations.

In this case, much like Houston v. Chicago, Rock Island & Pacific Railroad, supra, there was evidence from which it can be said that there was vegetation which obstructed Janet’s view to the east, the direction from which the train came as she approached the crossing. The obstruction continued until at least the crossbuck which was 16 feet south of the track. The distance between the front of Janet’s car to where she was seated is not shown in the testimony but as shown by photographs it extended some distance forward of the driver. The distance from the point of vision to the path of the train was further shortened by about three feet of the overhang of the train. One of the witnesses testified that the vision of a northbound motorist was obstructed to about 6 feet from the tracks. There is no conclusive evidence from which we can say that Janet was driving at an excessive rate of speed. The testimony of the fireman that Janet and the train were going at the same rate of speed may not be considered since it does not aid plaintiffs’ case. Nor do we consider Railroad’s evidence of sight distances introduced into evidence and urged upon us by Railroad for the same reason. Zumault v. Wabash Railroad, supra, 302 S.W.2d at 867[3], Most favorably to plaintiffs, the skid marks beginning 11½ feet south of the mainline considered with the evidence detailed above would indicate that she applied her brakes when the train first became visible to her. The fact that Janet did not stop prior to the point of impact is not conclusive of a lack of due care when we consider all of the evidence favorable to plaintiffs. The plaintiffs’ decedent in this case came from around a curve immediately before reaching the crossing. The county blacktop road which was 17 feet wide narrowed to 14 feet as it passed over the crossing. Just 41 feet after crossing the tracks the driver must also cross old highway 66. There is also the gravel road which intersects highway P from the west forming a “T” intersection. This road is only 11.5 feet south of the tracks. From photographs it appears that the road widens as it intersects P to the point where it is just a few feet from the tracks. There are no traffic controls for traffic entering P from the side road. While the road is not heavily traveled, Janet was required to look for traffic which might enter highway P from that road. She was required to watch for trains coming from the west as well as those from the east. She had to watch for traffic on old highway 66 immediately after crossing the tracks and for any traffic that might be approaching the narrow crossing. Janet could also place some reliance upon the statutory signals being given by the train. Weber v. Missouri-Kansas-Texas Railroad, 519 S.W.2d 307, 311 (Mo.App. 1975). Under the facts and circumstances of this case the issue of contributory negligence was for the jury and not the court. Houston v. Chicago, Rock Island & Pacific Railroad, supra; Zumault v. Wabash Railroad, supra; see also Weber v. Missouri-Kansas-Texas Railroad, supra.

Railroad next charges that the court erred in giving plaintiff’s verdict directing instruction. The instruction reads as follows:

“Your verdict must be for the plaintiffs and against the defendant St. Louis and San Francisco Railway Company if you believe,
First, plaintiffs were the husband and the two minor children, respectively, of Janet E. Doyle, deceased,
Second, defendant St. Louis San Francisco Railway Company either:
Failed to maintain the right of way at the public grade crossing at Highway P so that it was reasonably clear of vegetation and undergrowth for a distance of 250 feet each way from such crossing, where such things did materially obscure approaching trains from the view of trav-ellers on the highway, or
failed to ring a bell at a distance of at least 80 yards from the place where the railroad crossed Highway P, and failed to continue to ring it at intervals thereafter until said engine had crossed the Highway P crossing, and failed to sound a whistle, at a distance of at least 80 rods from the place where said railroad crossing crossed Highway P and failed to continue to sound it at intervals thereafter, until said engine had crossed the Highway P crossing,
Third, as a direct result of such conduct Janet E. Doyle died.
Unless, you believe plaintiff is not entitled to recover by reason of Instruction No. 5.”

Railroad argues that paragraph second misdirected the jury and gave them a roving commission and was ambiguous and confusing. It contends first that the instruction is capable of the interpretation that Railroad was required to control vegetation for 250 feet in all directions from the crossing which would include areas beyond its right of way.

This instruction is based upon Public Service Commission General Order No. 47 which provides:

“It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state to maintain the right-of-way at public grade crossings so that it will be reasonably clear of vegetation, undergrowth or other debris for a distance of 250 feet each way from such crossings, where such things will materially obscure approaching trains from the view of travelers on the highway.”

The issue is one of semantics. Railroad is required to maintain its right of way reasonably clear of vegetation at crossings. This action involved but one crossing. The instruction confined the issue to the right of way at the one crossing; in all other respects it follows the General Order. The General Order has the force and effect of statute. Anderson v. Kraft, 129 S.W.2d 85, 89 (Mo.App.1939). An instruction that follows the language of a statute is sufficient. Cumby v. Farmland Industries, Inc., 524 S.W.2d 132, 135 (Mo.App.1975). In this case the instruction can only mean that Railroad is required to maintain the right of way “so that it” is reasonably clear of vegetation. “It” can only refer to the right of way. We do not find this portion of the instruction to be misleading.

Railroad next contends that the instruction required the jury to find that Railroad was required to sound the whistle and to ring the bell. It has long been settled that Railroad must either ring the bell or sound the whistle. It need not do both. Rollison v. Wabash Railroad, 252 Mo. 525, 160 S.W. 994, 997 (1913). The instruction here required the jury to find that Railroad did not ring the bell and did not sound the whistle. It is similar to the instructions which were approved in Gayle v. Thompson, 167 S.W.2d 954 (Mo.App.1943) and in Speakman v. Kurn, 115 S.W.2d 185 (Mo.App.1938). The case cited by Railroad, Wolfe v. Hines, 224 S.W. 143 (Mo.App.1920), has often been cited for the same proposition. In that case the court in dicta approved an instruction almost identical with the phraseology of the instruction attacked here. The court there said at page 146, “Under this instruction, the failure to sound the whistle and the failure to ring the bell must have concurred in order to have made defendant liable.” The instruction is not vulnerable to the attacks made upon it.

Railroad urges that the giving of MAI 2.02 out of the order required by MAI Notes on Use was prejudicially erroneous. Railroad relies upon Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo. banc 1975).

In the case before us there was a total of nine instructions which were given in the sequence in which they were numbered. Instruction No. 7 was MAI 2.02 “Facts Not Assumed.” It was given immediately before the measure of damage instruction, MAI 5.05 modified which was numbered 8. MAI 36.01, the “nine of your members” instruction, was numbered 9 and followed the damage instruction. The jury was provided with verdict forms to which there was no objection. No form of the verdict instruction was given. It is probably the intent of MAI that MAI 2.02 be given after the fact finding instructions. In view of the conclusion that we reach it will not be necessary to discuss the order in which this instruction should be given when no form of the verdict instruction is given.

Notes on Use under MAI 2.02 provides, “This instruction is to be given in every case immediately before the form of verdict instruction.” In Crystal Tire Co. the Supreme Court held that the failure to give the instruction in the sequence provided in Notes on Use was error. Rule 70.02(c) provides that, “The giving of an instruction in violation of the provisions of this Rule shall constitute error, its prejudicial effect to be judicially determined.” While there should be strict adherence to MAI and while a deviation is presumed prejudicial not every deviation is in fact prejudicial. State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975). In Crystal Tire Co., there were 23 instructions with MAI 2.02 given as instruction No. 2. As noted by the court, twenty instructions separated it from the form of verdict instructions. There were two defendants in the case who had filed cross claims in two counts against each other. The court gave five instructions on behalf of plaintiff, eight instructions on behalf of one defendant and six instructions on behalf of the other defendant. The court, in holding that the error in that case was prejudicial, commented that, “The number and nature of the several factual issues in this case illustrate the need for the giving of this instruction at the point required by its Notes on Use.” Id. at 321, 322.

Compared with Crystal Tire Co. the issues in this case were simple. Plaintiff had two verdict directing instructions, one against the Railroad alone, the other against the Railroad and its engineer. Railroad and its engineer gave a single contributory negligence instruction. These were the only instructions which require factual findings on the issue of liability. Neither of the parties can claim that they were prejudiced by the sequence in which MAI 2.02 was given so far as the issues of liability are concerned; it affected each of them equally. As plaintiff points out, there was a verdict in favor of defendant Morton the engineer. The only issue that could have been affected would seem to be the issue of damages and Railroad has abandoned its claim of excessiveness.

Since the opinion in Crystal, the issue of the sequence of MAI-CR 2.03 “facts not assumed” has been considered in State v. Billingsley, supra. In that case the “facts not assumed” was not placed in the proper sequence as required by Notes on Use. The court found as we do that Crystal Tire Co. was distinguishable. See also State v. Lawrence, 566 S.W.2d 243 (Mo.App.1978). The trial court in overruling the motion for new trial came to the conclusion that the change in order was not prejudicial. We find it created no likelihood of confusion. It has been demonstrated that under the particular circumstances of this case the error was not prejudicial. State v. Billings-ley, supra.

Railroad next urges us to reverse and remand because plaintiffs in argument on rebuttal misstated the law when they argued, “If the railroad track is of itself under all circumstances a warning of danger it wouldn’t be necessary for this statute.”

In determining whether the actions of the trial court with respect to argument of counsel were erroneous we consider oft repeated principles. The control of argument is with the discretion of the trial court and will be interfered with only in the event of abuse of discretion. Naeger v. Naeger, 339 S.W.2d 492, 497 (Mo.App.1960). A liberal latitude is indulged in argument of counsel especially in response to argument of opposing counsel. Contestible v. Brookshire, 355 S.W.2d 36, 44 (Mo.1962). When considering argument of counsel on appeal we must attempt to place the challenged portion of the argument in the context of the entire argument and as the participants were seen and heard by the trial judge and we defer to his better opportunity to judge the effect which it might have upon the jury. Schmid v. Langenberg, 526 S.W.2d 940, 946 (Mo.App.1975).

It has been said that it is within the province of the judge to determine how the jury might reasonably construe the language used, for language may reasonably convey more than one meaning. Naeger. The trial judge is in a position to discern the inferences conveyed by inflection and gesture.

In the case before us counsel for Railroad in his closing argument told the jury,

“The railroad track is and always has been itself a sign of danger, and a motorist in the State of Missouri has to exercise the highest degree of care in approaching a railroad crossing. The law is that a motorist approaching a railroad track has to look when it is effective for her to look.”

In the first sentence quoted above Railroad undertook to instruct the jury upon the law in addition to that given to them by the court in its instructions. Instructions upon the law of the case are the prerogative of the court, not of counsel. Stroh v. Johns, 264 S.W.2d 304, 307 (Mo.1954).

It has repeatedly been said that a railroad track is in itself a sign of danger. Pipes v. Missouri Pacific Railroad, 338 S.W.2d 30, 35 (Mo.banc 1960). The railroad track is a warning that trains move on the track; it is not a warning that there is a train in such close proximity to the crossing that there is likelihood of collision. The argument of counsel could be construed as advising the jury that Janet’s knowledge of the presence of the track was the only warning that Janet had a right to expect and that the happening of the accident was conclusive of her failure to use due care in the respects set out in the instruction on contributory negligence. The argument of Railroad ignores the proposition that would permit Janet to place some reliance upon the statutory signals being given by the Railroad. Weber v. Missouri-Kansas-Texas Railroad, 519 S.W.2d 307, 311 (Mo.App. 1975).

Plaintiff in retort to the argument of Railroad said,

“That statute [requiring that right of way be reasonably clear of vegetation] and the horn statute are designed to protect travelers going on highways. That is a mandatory rule of conduct which the railroad is bound to observe. Why, if it is the duty of everybody who is driving on that road, on that highway, if the duty is solely on that person this statute wouldn’t be necessary. If the railroad track is of itself under all circumstances a warning of danger it wouldn’t be necessary for this statute.”

This argument is in retaliation of the argument of Railroad set out above. Plaintiffs’ argument can be read as saying that Railroad does not discharge its duty to motorist merely by the fact that it has railroad tracks; that the presence of the railroad tracks coupled with a collision does not convict a motorist of contributory negligence.

We cannot say that the trial court abused its discretion in overruling Railroad’s objection to the argument and in overruling Railroad’s motion for new trial on this issue. We do not find reversible error in plaintiffs’ argument.

Railroad’s final point is that the court erred in permitting Gerald Walker, a witness for plaintiff, to testify with respect to an experience he had at the crossing during May of 1975 about one year after this accident. The witness testified that he had been unable to see the train because of the vegetation; that he did not hear a train whistle or bell and applied his brakes when he felt the vibrations occasioned by the movement of the train. He stopped within about three feet of the train. There was testimony throughout the trial that the conditions at the crossing were substantially the same from the date of the accident through July of 1975. The admission of evidence of this nature is largely within the discretion of the trial court. Lindsey v. Rogers, 220 S.W.2d 937 (Mo.App.1949). We believe that this issue is amply answered by Grothe v. St. Louis-San Francisco Railway Co., 460 S.W.2d 711, 718 (Mo.1970). We find no abuse of discretion on the part of the trial court.

Finding no reversible error, the judgment of the trial court is affirmed.

DOWD and REINHARD, JJ., concur.

      . “Q. [Counsel for plaintiff] Could you see the train coming?
      A. [Ruth J. Belcher] No, not until you got closer.
      Q. How close would you have to be to the track when you could see it clearly? Could you point out something on these pictures where you would have to be?
      A. Here is a gravel road here (indicating), right down in there.
      Q. Where would that be in reference to the crossbuck here?
      A. It wouldn’t be too far from it.
      Q. Can you estimate it?
      A. From here (indicating).
      Q. To the crossbuck—
      MR. MORRIS: Let’s get this into the record.
      Q. (By Mr. Lange) From the counsel table to the clerk’s table, is that right?
      A. Yes.
      Q. Which is about six feet, is that a fair—
      A. That is fair.
      Q. That’s about how close you would have to be to the track?
      A. Towards the east, yes.
      Q. To get a clear view?
      A. Yes.”

      . “1. This instruction, to be given in every case, shall be read to the jury as the first of the instructions given at the close of the case and immediately prior to argument of counsel. Rule 20.02(a).”

      . “INSTRUCTION NO. 5

      Your verdict must be for defendants whether or not defendants were negligent if you believe:
      First, Janet E. Doyle either:
      Upon approaching the crossing, failed to reduce her speed to a rate that would enable her to make an immediate stop before reaching the path of the train, or drove at an excessive speed, or failed to look at the tracks at a place where it was reasonably effective for her to do so; and
      Second, Janet E. Doyle’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
      Third, such negligence of Janet E. Doyle directly caused or directly contributed to cause any damage plaintiffs may have sustained.
      The term ‘negligence’ as used in this instruction means the failure to use the highest degree of care which means that degree of care that a very careful and prudent person would use under the same or similar circumstances.”


author: STEPHAN, Judge.

text:
    Chester J. SANDS and Estella Sands, Plaintiffs-Appellants-Respondents, v. R. G. McKELVEY BUILDING Co., Defendant-Respondent-Appellant.
    Nos. 39201, 39202.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 22, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Robert E. Morley, O’Fallon, for plaintiffs-appellants-respondents.
    L. W. Boschert, St. Charles, for defendant-respondent-appellant.

      . Since the date of the trial, Supreme Court Rule 70.01 has been renumbered 70.02 and amended in minor respects not relevant to this discussion.

   STEPHAN, Judge.

This suit arises from the construction of a home for Chester and Estella Sands in St. Peters, Missouri, by the R. G. McKelvey Building Company. Because the parties have filed cross appeals, they will be referred to as they appeared in the court below. Pursuant to a jury verdict plaintiffs Sands were awarded $3,000 in actual damages. For reasons hereinafter stated, we reverse and remand for a new trial.

Plaintiffs’ petition in the circuit court was in two counts. The first count alleged that defendant had breached an implied warranty of habitability in the sales contract by cutting and installing floor joists in an unskillful and unworkmanlike manner so as to provide inadequate support for the house. Count II repeated the allegations of Count I and further alleged that the joists were not constructed in compliance with the Building Officials and Code Administrators (BOCA) Code, duly adopted by ordinance by the City of St. Peters and in effect at the time of the construction of the home. Each count asked for $10,000 in actual damage and costs; Count II, alleging a “deliberate, willful and malicious” violation of the St. Peters ordinance, also sought punitive damages in the amount of $10,000. At the close of the evidence, the trial court sustained defendant’s motion for a directed verdict as to punitive damages. The court also, on defendant’s motion, required plaintiffs to choose between Counts I and II for the reason that submission of both theories of liability would open up the possibility of double recovery. Plaintiffs elected to proceed on Count II and submitted its case on a theory of per se negligence based on violation of the BOCA Code.

The floor joists here are “2 X 8” planks at the ceiling of the basement and comprise the supporting structure upon which the house is built. In this house, two steel I-beams, or girders, run the length of the basement ceiling at intervals of roughly one-third of the width. The joists are perpendicular to the girders, with one end resting on a girder and the other end on the nearest concrete foundation wall, or in the center section with the ends resting on each girder. The joists rest on edge, and on this base is built the floor of the first story of the house.

The events leading up to this suit are these: On October 6,1974, plaintiffs signed a contract to purchase a home in a subdivision being developed by defendant in St. Peters. The home was to be identical to a model home which the Sands had inspected in the subdivision except for the inclusion of a small number of optional extras; all plans and specifications were therefore the product of defendant. The house was built between October and December and the closing completed on December 10. The BOCA Code requires that joists resting on a girder must bear four inches on the girder. On an acknowledgement of acceptance form signed at the time of the closing, plaintiffs made note of a number of small items that needed completion or repair. Included among these was a single joist which, as Mr. Sands had noticed upon a brief inspection prior to the closing, had no bearing at all on the girder. Mr. Sands did not discover that many of the other joists were shorter than required by the Code until several weeks after the sale was closed.

In response to plaintiffs’ complaints in the matter, defendant sent two carpenters back to the house to install some additional joists, thirteen to sixteen in number, next to those about which plaintiffs were particularly concerned. The efficacy of this repair was the subject of much dispute at the trial. Defendant’s president, Mr. Robert G. McKelvey, testified that, although the joist system was originally not in compliance with the BOCA Code, it was nonetheless structurally safe even before the repair work with the exception of the single short joist; and that after the doubling of a number of the joists, the house was safe. Mr. Rayford Pickett, a civil engineer who had been the St. Peters city engineer at the time the house was built, testified that the joists, as corrected, complied with the BOCA Code and that the repairs provided the house with a “much better” bearing surface and “much stronger” structure than it would have had if the system had originally complied minimally with the Code. Pickett indicated that his testimony was based on an inspection made over two years after the house was built, that he saw no evidence of sag or deflection in the floors, and that such sag would normally occur within six months of construction if the system were defective. Mr. Ben Kirchner, the city inspector for St. Peters, testified that on the basis of an inspection made even before the repair work was done, he “passed” the house despite the short joists. Kirchner testified that it was common practice to install joists with an inch and a half to two inches of bearing (as had most of the joists in question here), that as city inspector he regarded such a support system adequate for the house, and that plaintiffs had sustained no damage due to the construction of the joists in this fashion. Much of this testimony was disputed, however, by plaintiffs’ witness, Mr. Ward Emigh, a private consulting engineer who made an inspection of the house at plaintiffs’ request approximately a year after plaintiffs had moved into it. Emigh testified that as originally constructed, some twenty-eight joists in the house had inadequate bearing and violated the BOCA Code in other respects. He further testified that, even as repaired, the joists did not comply with the BOCA Code and that the added joists would provide no additional structural strength whatever because they were warped and improperly installed. He, therefore, discounted their effect altogether. Emigh indicated that he too saw no evidence of sagging in the floor, but believed that should there be any movement at all in the foundation, there would be inadequate reserve strength to support the eastern side of the house, where the problem was most acute.

After Emigh’s inspection, plaintiffs asked another builder, Mr. Henry Stealey, to give them an estimate of the cost of certain repair work. Stealey estimated that it would cost $558 to remove ten of the replacement joists which defendant had added and to install eighteen new ones. Stea-ley was not asked his opinion of the necessity of these repairs; plaintiffs designated the items of repair on which they wanted an estimate. There is no evidence in the record as to whether such repairs would have put the house in strict compliance with the BOCA Code.

Plaintiffs’ dissatisfaction with the house grew to the point that “We were so disgusted we were glad to get out.” After only twenty months of occupancy, they sold the house on July 1, 1976. They asked for and received $32,500, which represented the original purchase price plus the cost of minor improvements (unrelated to the joists) which they had made. The new purchaser testified that Mr. Sands told them that he only wanted to get out of the house what he had put into it. The new owners were fully apprised of what plaintiffs considered to be the defects in the house. Mr. Sands testified that a fair market price for. the home, had it been properly constructed, would' have been $35,000; the new owner gave an estimate of $36,000 or more. At the time of the trial, more than two years after construction was completed, there was still no evidence of sagging in the floors.

On appeal, defendant complains (1) that the verdict is excessive in view of the evidence that replacement of eighteen joists would have cost $558; (2) that the court erred in giving MAI 4.01, proffered by plaintiff, as the measure of damages instruction; (3) that the court erred in giving the verdict director, a modified form of MAI 17.18 (Per se Negligence — Violating Speed Limit); (4) that the court erred in refusing to clarify the instructions after the jury made such a request in writing during its deliberation; and (5) that the evidence did not support a submission to the jury that a violation of the BOCA Code ordinance could be found to be the proximate cause of plaintiffs’ loss. On their appeal, plaintiffs contend that they should have been allowed to seek punitive damages.

We hold that, in giving MAI 4.01 rather than 4.02, the trial court committed error warranting a new trial. Supreme Court Rule 70.01(b) states that when an MAI is “applicable in a particular case . such instruction shall be given to the exclusion of any other on the same subject.” It has been the policy of the courts to require strict compliance with the requirements of MAI. In general, when an MAI is applicable, its use is mandatory. DeArmon v. City of St. Louis, 525 S.W.2d 795, 800 (Mo.App. 1975); Siteman v. Woodward-Clyde & Associates, Inc., 503 S.W.2d 141, 145 (Mo.App. 1973). Any deviation from or unnecessary modification of the applicable MAI is “presumptively prejudicial.” State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147, 154 (Mo.App.1974); Siteman, supra, 503 S.W.2d 145. In this case, the highlighted titles of the two MAI’s clearly indicate that 4.01 is to be used when personal or both personal and property damages are claimed and 4.02 is to be used in cases of property damage only. The Notes on Use to 4.02 state that “This instruction should be used in cases involving property damage only.” The Committee’s Comment on 4.02 states that “Where both personal and property damages are involved 4.01 must still be used.” The Notes on Use are to be “religiously followed”. Royal Indemnity Co. v. Schneider, 485 S.W.2d 452, 458 (Mo.App. 1972).

The cases cited by plaintiffs, Jack L. Baker Companies, Inc. v. Pasley Manufacturing & Distributing Co., 413 S,W.2d 268 (Mo.1967), Stamm v. Reuter, 432 S.W.2d 784 (Mo.App.1968), Boten v. Brecklein, 452 S.W.2d 86 (Mo.1970) and North County School District v. Fidelity & Deposit Co., 539 S.W.2d 469 (Mo.App.1976), are not persuasive. All four cases held that MAI 4.01 was the proper instruction in a suit for property damage only. However, the first three cases, Baker, Stamm and Boten, all involved trials which predated the effective date of the second edition of the MAI, September 1, 1969, when MAI 4.02 first appeared. At that time, therefore, 4.01 was the only MAI on personal or property damages and, under the dictates of Rule 70.-01(b), the courts rejected the argument that 4.01 was too general and therefore prejudicial in failing to designate specifically the items the jury was to consider in establishing property damages, i. e., the lesser of the cost of repairs or the diminution of fair market value. The court in Boten, supra, 452 S.W.2d 93, said that, “It is contemplated by MAI that where a general instruction of this kind [4.01] is given the jury will be properly advised by the argument concerning details. . . .We agree that, at least until a more detailed form is provided in MAI, it is appropriate to use 4.01.” (Emphasis added.) The court in North County School District, supra, decided in 1976, faced the same issue as presented in Boten : whether MAI 4.01 was the proper damage instruction in a breach of contract case. Citing Stamm and Boten, the court held it was. MAI 4.02 was not mentioned and was apparently overlooked. We decline to follow North County School District and hold that MAI 4.02, given in either form, is precisely the “more detailed form” contemplated in Stamm, supra. It clearly defines the elements of damage to be considered by a jury, as the general 4.01 does not. Following challenges to 4.01 such as those in plaintiffs’ cases cited supra, the Missouri Supreme Court by adopting 4.02 in 1969 clearly indicated its unwillingness to allow the measure of damages to remain a matter of evidence and argument of counsel, as it had been up to that point. We do not believe this added clarification of the damage issue should be lost by our holding 4.01 acceptable in this situation.

In both Ogle v. Terminal Railroad Association of St. Louis, 534 S.W.2d 809 (Mo.App. 1976) and State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147 (Mo.App. 1974), reversals were granted where MAI 4.01 was used in property-damage-only cases. After establishing that 4.02 was in fact the proper instruction in that situation and that the burden was on the proponent of 4.01 to show conclusively that no prejudicial harm resulted from its use, Ogle, supra, 534 S.W.2d 812, Beaty, supra, 505 S.W.2d 154, both courts rejected the argument, also made by plaintiffs here, that the result under 4.02 would have been identical to that reached under 4.01 because the evidence would be identical under both instructions and the verdict reached conformed with that evidence. In Ogle, the argument was termed “pure speculation” and we deem it such in this case. Plaintiffs’ evidence indicated that, without defects, the house could have been sold for $35,000 to $36,000, but that they in fact sold it for $32,500. However, we question whether the evidence in this case (specifically, that the joist system in this house was built in accord with the usual practice in St. Peters and that plaintiffs asked for no more than $32,500) would necessarily support a finding that plaintiffs sold the house for its fair market value at the time of sale. By instructing the jury to “fairly and justly compensate” plaintiffs should it find in their favor (MAI 4.01) rather than to award the diminution in fair market value (4.02), the trial court provided an unfocused instruction which could permit a jury to gloss over that question altogether. That is precisely the situation that the Supreme Court sought to avoid by adding 4.02 in 1969. Furthermore, we question whether diminution of fair market value is the proper measure of damages in this case. Evidence indicated that substantial repair could have been performed on the joists for $558, although, as noted, it is unclear whether such repair would have put the home in strict, or even substantial, compliance with the BOCA Code. However, the form of MAI 4.02 to be used will depend on the evidence adduced upon retrial. We simply decide here that plaintiffs have not met the burden of making it “perfectly clear”, Murphy v. Land, 420 S.W.2d 505, 507 (Mo.1967), that no prejudice resulted from the use of 4.01. We agree with what was said in Beaty, supra, 505 S.W.2d 154-155, that “if, in fact, we accept plaintiff’s premise [i. e., that the result would have been the same], then we will have said that MAI 4.02 is unnecessary in any property damage case, as 4.01 can perform the same function if the proper measure of damages is forthcoming from the testimony in the case.” Because MAI 4.01 was given, the case is remanded for retrial.

We now turn to the other assignments of error which relate to matters which may arise on retrial. Defendant alleges error in the giving of the verdict director and contends that the evidence was such as to preclude a jury finding that a violation of the BOCA Code was the proximate cause of any loss suffered by plaintiffs. Both of these points go directly to the theory of liability on which plaintiff elected to go to the jury: per se negligence in the violation of an ordinance directed toward the establishment of minimum safety standards in building construction. Whatever merit such a theory could have been argued to possess at the time this case was tried, it must be abandoned upon retrial. After argument and submission of this case, the Supreme Court of Missouri handed down its decision in the case of Crowder v. Vandendeale, 564 S.W.2d 879 (Mo. Banc 1978), which thoroughly explicated the relationship between a homebuilder-vendor and the first and subsequent vendees. In Crowder, wherein the plaintiff, who had purchased from the first vendee, sought recovery from the builder, the court concluded as a matter of public policy that the relationship between the builder-vendor and the first purchaser is grounded in contract “and that a second theory of recovery based on failure to use ordinary care should not be authorized.” Id., 884. Thus, upon retrial, plaintiffs may not employ a verdict director founded upon the tort theory of negligence per se. In the present state of the law, we believe that, while a violation of the BOCA Code may be relevant to the issue of habitability, it is not conclusive. We note that the plaintiffs tendered to the trial court MAI 25.03, Breach of Warranty of Fitness for Particular Use, as their verdict director in connection with Count I. It was not given when plaintiffs were required to elect as between the counts and opted for Count II. We cannot foretell what the evidence will be if this case is retried. However, such an instruction may be appropriate.

We do not address defendant’s remaining point, that the trial court erred in refusing to submit a clarifying instruction when it received a written inquiry from the jury during its deliberations. The inquiry was, “Are we to consider the four inch on center question based on original or repair construction?” As defendant points out in its brief, the question was undoubtedly occasioned by the use of the word “occurrence” in MAI 4.01. Use of a properly modified form of MAI 4.02 should prevent the problem from arising on retrial.

On their appeal, plaintiffs argue that the trial court erred in refusing to submit the issue of punitive damages to the jury. Because of the facts of this case, we agree. As pointed out by Crowder, supra, this case is one in contract. While the general rule is that punitive damages are not recoverable in a case arising out of a breach of contract, there are exceptions “where the breach amounts to an independent, willful tort and there are proper allegations of malice, wantonness or oppression.” Wallick v. First State Bank of Farmington, 532 S.W.2d 520, 524 (Mo.App. 1976); Williams v. Kansas City Public Service Company, 294 S.W.2d 36, 40 (Mo.1956).

In this case, plaintiffs pleaded that the violation of the BOCA Code by the defendant was willful, deliberate, and malicious. Moreover, the BOCA Code, as an ordinance of the City of St. Peters, enjoined upon defendant the duty of conforming to it at peril of responding in damages, at least to any first purchaser injured by its failure to do so. The first purchaser of a newly constructed house is clearly a member of the class for whose benefit the ordinance was enacted, and it is equally clear that the purpose of the ordinance is to protect persons, property, health, or public safety. Under such circumstances when an ordinance violation is the proximate cause of a loss, the courts of this state recognize a cause of action. Moore v. Riley, 487 S.W.2d 555 (Mo.1972); Washington University v. Aalco Wrecking Co., Inc., 487 S.W.2d 487, 491 (Mo.1972). Furthermore, it is a well established principle that where the violation is accompanied by the element of legal malice, i. e. willful and known to the defendant to be wrongful, punitive damages may be awarded by the jury. Hall v. St. Louis-San Francisco Ry. Co., 224 Mo.App. 431, 28 S.W.2d 687, 691 (1930); Patrick v. Employers Mutual Liability Ins. Co., 233 Mo.App. 251, 118 S.W.2d 116, 126 (1938). See also Cheek v. Prudential Ins. Co., 192 S.W. 387 (Mo.1917).

In determining whether plaintiffs made a submissible case on the issue, we review all the evidence in the light most favorable to plaintiffs, giving them the benefit of all favorable inferences reasonably drawn therefrom and disregarding defendant’s evidence to the contrary. Grossman Iron & Steel Co. v. Bituminous Casualty Corp., 558 S.W.2d 255, 258 (Mo.App.1977); Boyle v. Colonial Life Insurance Company of America, 525 S.W.2d 811, 815 (Mo.App. 1975). The issue should have been submitted to the jury if there was any evidence of conduct which would justify the awarding of punitive damages. In this case, defendant corporation had built some seven hundred houses in the City of St. Peters; defendant’s president was familiar with the Code and its requirements relating to bearing on girders. He admitted that more than thirteen joists in the plaintiffs’ home were short and did not comply with the Code. From other evidence the jury could have found twice that number to be short. The defendant was the most active builder in St. Peters; and, according to the building inspector, it was common practice to build homes in St. Peters with joists bearing only one and one-half to two inches on I-beams. From such evidence the jury could have found a willful violation of the Code committed with knowledge of its wrongfulness. Thus, the breach of the contractual relationship here, Crowder v. Vandendeale, supra, could be found to have amounted “to an independent, willful tort”. Wallick v. First State Bank of Farmington, supra. Therefore, it was error for the trial court to refuse to submit the issue of punitive damages to the jury.

The judgment is reversed and the cause remanded for new trial consistent with this opinion.

STEWART, P. J., and REINHARD, J., concur.

      . There is some question in the transcript as to whether Mr. Stealey testified that he would charge plaintiffs $558 or $676 for the removal of ten joists and the installation of eighteen new ones. He testified that the cost of materials would be $118, and the confusion arises from whether his reference to $558 does or does not include the cost of materials.

      . The instruction forms, as pertinent here, read as follows:
      “4.01 Measure of Damages — Personal and Property
      If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained ... as a direct result of the occurrence mentioned in the evidence.
      4.02 Measure of Damages — Property Only If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you may find from the evidence to be the difference between the fair market value of (here identify property) before it was damaged and its fair market value after it was damaged.”
      The supplemental notes on pse relating to 4.02 provide:
      “MAI 16.02 defining ‘fair market value’ must be given. In those rare cases in which the cost of repair is the appropriate measure of damages [as recited in the Committee’s Comments] the instruction should read:
      If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you may find from the evidence to be the reasonable cost of repair of any damage to (here identify property).”

      . In other cases which were tried subsequent to the promulgation of MAI 4.02, the use of 4.01 has been approved in spite of the absence of personal injury. See O’Dell v. Custom Builders Corporation, 560 S.W.2d 862, 873 (Mo. banc 1978); S. P. Personnel Associates of San Antonio, Inc. v. Hospital Building & Equipment Co., Inc., 525 S.W.2d 345, 350 (Mo.App. 1975). However, in none of the cases was the issue raised as to the propriety of 4.01 vis-a-vis 4.02, the attack being made on other grounds. We, therefore, do not feel constrained to follow those cases.

      . Depending on how that evidence develops, MAI 4.03 could conceivably be the appropriate measure of damages instruction. See Notes on Use and Matulunas v. Baker, 569 S.W.2d 791 (Mo.App.1978).

      . The right of the first purchaser of a home to recover against the builder-vendor for latent defects in its construction on the theory of implied warranties of merchantable quality and fitness was initially recognized in Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo. banc 1972). It was not critical to the disposition of that case to determine definitely whether the cause of action sounded in tort or contract, for the right of recovery arose from the fact of the purchase from the builder, i. e., the warrantor. See also the analysis of Old Warson in O’Dell v. Custom Builders Corporation, 560 S.W.2d 862, 870-871 (Mo. banc 1978).

      . “The test to be applied in determining whether malice existed as a basis for the award of punitive damages is whether the defendant did a wrongful act intentionally and without just cause or excuse. ‘This means that defendant not only intended to do the act which is ascertained to be wrongful but that he knew it was wrongful when he did it. There must be, in order to justify punitive damages, some element of wantonness or bad motive, but if one intentionally does a wrongful act and knows at the time that it is wrongful he does it wantonly and with a bad motive.’ ” Beggs v. Universal C.I.T. Credit Corporation, 409 S.W.2d 719, 722 (Mo. 1966).