author: HOGAN, Judge.

text:
    Forrest A. WOMBLES, Plaintiff-Respondent, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 9841.
    Missouri Court of Appeals, Springfield District.
    Aug. 10, 1976.
    Motion for Rehearing or Transfer Denied Aug. 30, 1976.
    Application to Transfer Denied Oct. 12, 1976.
    Morran D. Harris, Osceola, for defendant appellant.
    John M. Belisle, Osceola, for plaintiff respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This action was brought by plaintiff upon an insurance policy issued by defendant General American Life to plaintiff as a member of the Automobile Club of Missouri. The cause was tried to the court; plaintiff had judgment in the amount of $1,611 plus $161 for vexatious delay together with a $500 attorney’s fee. By stipulation, the judgment was reduced in the amount of $49.50. Defendant appeals.

The policy sued on is a “personal travel accident” policy. The policy provisions in issue provide indemnity for scheduled losses “resulting directly and independently of all other causes from accidental bodily injuries sustained while this policy is in force and: (1) while [the insured is] operating, riding in, demonstrating, adjusting or cranking an automobile”. There are provisions for hospital benefits, but they are not material here. Issuance of the policy and receipt of the premium were admitted by the defendant.

At the time the casualty occurred, plaintiff, 25 years of age, lived on a farm or suburban acreage near Lowry City, Missouri. He was employed by the State Highway Department; the nature of his employment is not shown.

About 4:30 p. m. on the day of the accident, plaintiff finished his work and went home. Between 7:00 and 7:30 p. m. plaintiff decided to inspect his horses, which were in a pasture eight miles from his home. Plaintiff drove his pickup truck to the pasture, stopped and got out. When he shut the door he “turned around and noticed [a] stick of dynamite in the back of the truck” “[p]retty well over to the front and a little past middleways over” “sticking out from underneath” a bumper jack. Plaintiff explained that he had been “dynamiting some drift out of the branch there at home”, that he had intended to use two sticks of dynamite but had used only one, and that he had put the unused stick of dynamite — fused—in the bed of the pickup and had forgotten about it.

In any case, as plaintiff stepped out of his truck, he noticed the dynamite in the bed of the pickup, “just in there loose”. Realizing that the dynamite was dangerous, plaintiff decided to put it “up in front so maybe it wouldn’t bounce around and go off or something.” Mr. Wombles stepped up on the running board along the side of the truck bed, moved some fishing tackle aside and picked up the dynamite. He then “reached down to get ahold of the side of the truck”, apparently bumped the side of the truck bed and the dynamite exploded. As a result, plaintiff lost his right arm an inch above the wrist, lost his left eye, and “busted both ear drums”. The defendant denied liability and this action followed.

The plaintiff — respondent here — has filed a motion to dismiss or affirm the judgment pursuant to Rule 84.10, principally upon the ground that the defendant’s brief does not comply with the requirements of Rule 84.-04(d). Rule 84.04(d) provides that “[t]he points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous”. In the alternative, plaintiff asserts that the defendant has failed to demonstrate that the trial court’s judgment is clearly erroneous for any reason.

In this connection, we should note that the phrases “de novo” and “clearly erroneous” no longer appropriately describe the scope of our review in bench-tried cases. Rule 73.01, para. (3), subparas, (a) and (b), were definitively construed in Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976), and we review this case in strict accordance with the admonition of that case. We think we must agree that defendant’s brief fails to comply with the requirements of Rule 84.04(d), and although we decline to dismiss the appeal, we have concluded the judgment must be affirmed pursuant to Rule 84.10.

The principal “point” set out in the defendant’s brief is that “[t]he findings and judgment of the [trial] Court are wholly unsupported by competent, relevant and material evidence. There is no basis in law or fact for finding that Plaintiff was either operating or adjusting a motor vehicle at the time of the accident in question.” Five cases, admittedly dissimilar because they involve different policy language, are cited. For the most part, defendant argues the merits by means of rhetorical questions, and the plaintiff has attempted to answer in a similar vein. Defendant cites Schorling v. United States Fidelity and Guaranty Co., 239 Mo.App. 431, 188 S.W.2d 369 (1945), as a holding that a plaintiff cannot recover under a policy of this kind if he is outside the automobile, but the same court allowed recovery in Crollard v. Northern Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375 (1947), under similar policy provisions upon a showing that the insured was fatally injured when he fell from the rear bumper of his vehicle while attempting to disengage the bumper from that of another vehicle. As these cases and many others demonstrate, policies of the kind under consideration do not center upon the idea of the presence of the insured in his vehicle, but look to the activities and conduct being carried on when the injury is sustained. Kennedy v. Maryland Casualty Co., 26 F.2d 501, 502[1-3] (W.D.La.1928); Schorling v. United States Fidelity and Guaranty Co., supra, 239 Mo.App. at 433-434, 188 S.W.2d at 370[1, 2]; 6 Blashfield, Cyclopedia of Automobile Law and Practice § 4127 (perm. ed. 1945).

Some crude idea of the profusion of judicial views upon the general subject here involved may be drawn from the fact that 50 entries containing a definition of the phrase “operate a motor vehicle” are listed in 29A Words and Phrases at 396 — 400 (1972). A frequent prelude to opinions attempting to define the phrase “operate a motor vehicle” is the statement that the word “operate” has varying meanings according to context which primarily determines its meaning. See, e. g., State Farm Mut. Auto. Ins. Co. v. Coughran, 303 U.S. 485, 491, 58 S.Ct. 670, 672, 82 L.Ed. 970, 974 (1938); Orth v. Universal Underwriters Ins. Co., 284 F.2d 857, 859-860 (9th Cir.1960); In re Boardman’s Case, 310 N.E.2d 593, 597, n. 5 (Mass.1974); Lukaszewicz v. Concrete Research, Inc., 43 Wis.2d 335, 168 N.W.2d 581, 585[5] (1969). We can scarcely conceive a more precise way of saying that the word “operation” is ambiguous, but we do not base our holding upon a ruling that here the word “operation” is ambiguous “in context”, whatever that may mean.

Time and again recently, the Court of Appeals has emphasized the necessity of tendering explicit issues for consideration on appeal. With deference to learned counsel for the defendant, the brief for defendant in this case amounts to little more than an invitation to search the record, discover the applicable law if we can, and thus become its advocates. We decline to do so. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. John GLEASON and Vesta Gleason, his wife, Petitioners, v. The Honorable John R. RICKHOFF, Respondent.
    No. 37333.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      Anderson, Preuss, Mooney & Eickhorst, Anthony L. Anderson, Clayton, for petitioners.
    Lashly, Neun & Johnson, Paul Lashly, John F. Sutherland, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Original proceeding in prohibition to bar respondent judge from ordering relators to surrender property. Relators contend respondent acted without giving them adequate notice. We issued our preliminary writ and the parties have briefed, argued and submitted the cause. We conclude our original writ was issued improvidently and now quash it.

The trial court proceedings, all in 1975, stem from the insolvency of the Lincoln National Mutual Fire Insurance Company (hereafter referred to as “company”). On May 22 a verified petition for appointment of a receiver was filed. A hearing was set for May 23 but reset for June 5 and again for June 13.

Relators John and Vesta Gleason were, respectively, the company’s president and secretary. They were personally served with notice of the original hearing date and appeared on May 23 and June 5. On June 13 the court ordered relators to surrender all records, correspondence, documents of title, and assets of the company. On July 24 a hearing was held for relators to show cause why they should not be held in contempt for failure to comply with the court’s order to furnish the records. The court also ordered the arrest of relator John Gleason if the records were not surrendered. The hearing was then continued until August 5.

On July 25, the day after the court’s arrest order was issued, relator submitted partial company records. He also filed a verified motion requesting the court to accept the tendered records of the company, to remove the receiver for bias and to increase the $2,000 bond posted by the receiver. Relator’s motion was set for hearing on August 5.

On July 30 the receiver filed an affidavit stating he had reasonable grounds to believe relators had company property in their possession. The receiver sought to have relators appear on August 5 to be examined on these matters, further petitioning the court to cite relators in contempt for failing to submit additional company records.

On August 5 relator submitted additional company records. Counsel for the receiver examined relator about the missing records and expenditures of company funds used by relators to acquire a house at # 12 Sun-swept Drive, Creve Coeur, and a 1973 Chevy Nova. The hearing was continued to August 12.

On August 11 the receiver filed a verified petition requesting the court to authorize him to take custody of and sell two alleged assets of the company, namely, a house at # 12 Sunswept Drive and a 1973 Chevy Nova. The hearing on the petition was held, along with the hearing scheduled for August 12. Relators were present with their counsel, moved orally for additional time, and objected to lack of the five-day notice prescribed by Rule 44.01(d). The objection was overruled. The receiver introduced into evidence cheeks drawn on the company’s account which tended to prove-the checks had been used to purchase the house and the automobile. Receiver was not cross examined on this evidence by rela-tors’ counsel. Relators further refused to answer questions propounded by the receiver. At the close of the hearing, the respondent judge ordered the receiver to take custody of and sell company assets, including the house and auto.

On August 18 relators filed a petition for a writ of prohibition. They asserted they were the record owners of the home and auto included in the respondent’s order of sale. They alleged they were not given adequate notice of the receiver’s motion to take custody of the property. The notice was filed August 11 and heard August 12. Relators’ counsel had been served with notice of the motion the day before the scheduled hearing and they now seek to prohibit respondent from enforcing the August 12 order of sale.

Relators contend respondent exceeded his jurisdiction in ordering the sale of the house without first affording them five days’ notice after the receiver filed his petition. They rely on Rule 44.01(d) which requires “a written motion . . . and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed ... by order of the court.” Relators concede that rule authorizes a court to order a different period of time for notice, but contend there was no such order in this case and that without proper notice respondent lacked jurisdiction to issue the order of sale.

It is not contested that on the day before the hearing, relators’ counsel was served with notice of the receiver’s petition to sell the property. Civil Rule 44.01(d) authorizes a court to order a period of time different from the five days required for notice of a hearing. Here, the respondent judge overruled relators’ objection to lack of proper notice and permitted the hearing of August 12 to proceed as scheduled. That was a specific order to shorten the time of notice “by order of the court.” Rule 44.01(d), supra.

Reasonable notice was a prerequisite to the court’s power to make the order. Whether relators were given “reasonable notice” depends on the facts of the case because that term is “flexible and pliable, not rigid and unyielding.” Baker v. Baker, 274 S.W.2d 322 [6-10] (Mo.App.1954). Notice is any fact which would put an ordinarily prudent person on inquiry. Hatcher v. Hall, 292 S.W.2d 619 [7, 8] (Mo.App.1956). The purpose of a reasonable notice requirement is to afford the party affected an opportunity to appear for his own protection. Baker, supra, 1. c. 326.

The record shows relators were familiar with the receiver’s challenge to their custody of company property and that they had been put on inquiry of the receiver’s intention to take custody of the property in question. There is no clear showing respondent erred in shortening the five-day notice period as allowed by Rule 44.01(d). A writ of prohibition should be granted only when it is clearly evident a court has acted in excess of its jurisdiction. State ex rel. Allen v. Yeaman, 440 S.W.2d 138 [6-9] (Mo.App.1969). We conclude relators have failed to show an excess of jurisdiction.

Preliminary writ of prohibition quashed.

DOWD and STEWART, JJ., concur.

      . The term relator in singular form refers to relator John Gleason.

      . Since the filing of the original petition in prohibition, the automobile was repossessed by a bank; the challenge to the sale of the auto has become moot.


author: TURNAGE, Presiding Judge.

text:
    Barnes ROMINE and Gloria Romine, Plaintiffs-Appellants, v. REX DARNALL, INC., Defendant-Respondent.
    No. KCD 27078.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Chester B. Kaplan, Koenigsdorf, Kaplan, Kraft, Fox & Kusnetzky, Kansas City, for plaintiff s-appellants.
    Robert D. Youle, Thomas J. Wheatley, Kansas City, for defendant-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Barnes Romine and Gloria Romine, his wife, brought suit against Rex Darnall, Inc. for $15,000 and an accounting as a result of an agreement between the Romines and Darnall for the construction of a home. Darnall filed a counterclaim alleging Ro-mine had prevented him from completing the home and that he had expended $64,-175.40 in construction costs for which he had not been paid, and further asked for a mechanic’s lien to be adjudged in that amount. The trial court entered judgment for Darnall on Romine’s petition and in favor of Darnall on his counterclaim in the amount of $52,178.90, plus interest in the amount of $9,945.16, and gave a mechanic’s lien on the Romine property in that amount.

On this appeal Romine contends the finding by the trial court of the existence of a cost plus contract for the construction of the home was against the greater weight of the credible evidence, and the agreement between the parties was in fact a fixed cost contract. He also contends Darnall did not prove the reasonableness of the unpaid construction costs and did not establish a just and true account of his claim. Affirmed.

This case was tried to the court without a jury. The scope of review in a court tried case has recently been declared in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) “to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, . Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” 536 S.W.2d 32[1-3].

In this case Romine testified the agreement with Darnall was for the construction of the residence for $90,000 plus a fixed contractor’s fee of $10,860. On the other hand, Darnall produced evidence showing that he wrote two letters to Romine. The first letter stated Darnall would build the house at cost plus ten percent. The second letter stated Darnall would make a draw for his construction costs monthly. He stated his fee would be fixed at $10,860. Darnall further testified the agreement was for the house to be constructed on the basis of cost plus, together with a fixed fee for Darnall of $10,860.

Romine testified construction started with the plans for the house having been drawn by an architect, but before any specifications had been drawn. He stated Dar-nall was to furnish specifications as the work progressed.

After Darnall had commenced construction and Romine had paid $110,765, plus another $5,508.88 to individual subcontractors, Romine declined to pay any further construction costs to Darnall. At this point Darnall ceased work on the dwelling, and Romine subsequently obtained another contractor to finish construction. At this point the instant litigation commenced.

On the contested issue of the nature of the agreement between the parties, there was substantial evidence to support the trial court’s finding that the agreement called for a cost plus contract with a fixed contractor’s fee of $10,860. A review of the approximately 1400 pages of record fails to convince this court such finding was against the weight of the evidence. There was substantial evidence to support such finding and in that situation, the finding of the trial court of the existence of a cost plus contract, together with a fixed contractor’s fee of $10,860, must be affirmed.

The other points which Romine raises concern the failure of Darnall to prove the reasonableness of the charges which he made for unpaid labor and material. In a cost plus construction contract, it is stated in 17A C.J.S. Contracts § 367(2) p. 376: “No consideration is given to anything other than the cost items involved, unless the objecting party proves that the work was done in such ruthless disregard of the contractor’s obligations as to be tantamount to fraud or gross negligence.” No claim of fraud or gross negligence was made in this case.

Further it has been held that reasonableness is not a part of the proof in a cost plus construction contract. Charles A. Burton, Inc., v. Durkee, 162 Ohio St. 433, 123 N.E.2d 432 (1954). Absent some claim on the part of Romine indicating Darnall was guilty of fraud or gross negligence, it was not incumbent upon Darnall to prove that his charges for labor and material were reasonable. The cases cited by Ro-mine in support of this contention involve actions brought in quantum meruit. Of course, in those cases reasonableness is the very essence of the controversy; the quantum meruit rule does not apply in this situation.

Romine further contends Darnall ran up unnecessary charges because of mistakes he made and contends the work was not done in a skillful and workmanlike manner. Romine does not indicate any evidence in the record to show any increase in the cost of construction brought about by any mistake Darnall made. In the absence of any such evidence, it is apparent no finding could be made to give credit to Romine for any unnecessary construction costs.

Romine states in his brief that he had “never denied that the home as it was eventually built is a quality home.” He further states this does not constitute an admission that the home was built in a workmanlike manner. Romine does not explain how a home could be a “quality home” and at the same time not be constructed in a workmanlike manner, and this distinction escapes this court. The word “quality” is defined in Webster’s Third New International Dictionary as: “degree of conformance to a standard (as of a product or workmanship): inherent or intrinsic excellence of character or type: superiority in kind.” With this meaning of the word “quality” and without benefit of any specific instance cited by Romine to show poor workmanship, it cannot be said there was any infirmity in the judgment because of a failure to show the house was constructed in a good workmanlike manner.

Finally, Romine contends Darnall did not establish a just and true account of the claim he was making for unpaid construction costs and failed to prove that any of the items included therein went into the construction of this dwelling. Seventeen subcontractors testified concerning the fact they furnished material for the Romine dwelling. In addition, Darnall testified exhaustively concerning his business records showing the subcontractors used the materials furnished and the cost thereof and the fact that such materials were used in the Romine dwelling.

Romine never at any time questioned any of the construction costs as itemized on the statements sent to him and paid by him to Darnall. Nor does he question at this time any particular item claimed by Darnall to have been used in this house. His contention is only a general objection without being directed at any particular item or subcontractor.

This trial involved a very detailed listing of materials and costs and the identity of the person or firm who supplied such material. Romine’s counsel was extremely diligent in requiring Darnall to adhere to every known rule of evidence in proving all of the items claimed by Darnall. Because of this, Darnall presented a very complete picture, together with itemized proof of each item of material, and in addition, many subcontractors testified to their account and to the fact the material they furnished went into the Romine house. There was substantial evidence from which the trial court could find the amount contained in the court’s judgment was due and unpaid to Darnall. There was also substantial evidence to show such amount had been established so as to justify the imposition of a mechanic’s lien in favor of Darnall on the Romine real estate. George F. Robertson Plastering Company v. Magidson, 271 S.W.2d 538 (Mo.1954).

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    George D. BORDEN, Appellant-Respondent, v. PHILLIPS PETROLEUM COMPANY, Respondent-Appellant, and Vick-Lintecum General Contractors, Inc. and J. Palmer Jeffries d/b/a J & O Plumbing Company, Respondents.
    Nos. KCD 27171, KCD 27172.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Moore, Lay & Deis, Platte City, for appellant-respondent George D. Borden.
    James, Odegard & Millert, Kansas City, for respondent-appellant Phillips Petroleum Co.
    Niewald, Riejord & Waldeck, Kansas City, for respondent Vick-Lintecum General Contractors, Inc.
    Hale, Kincaid, Waters & Allen, Liberty, for respondent J. Palmer Jeffries d/b/a J & 0 Plumbing Co.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Lessee of gasoline service station brought suit against owner and contractors employed in remodeling station for damages for loss of gasoline. Jury found in favor of lessee and against owner and in favor of contractors and against lessee. Owner appealed from judgment in favor of lessee. Lessee appealed from judgment in favor of contractors. The appeals have been consolidated.

Phillips Petroleum is the owner of a service station at the intersection of Highways 45 and 9 in Platte County, Missouri. Since around 1960, George D. Borden has operated the station under lease from Phillips. The lease in effect at the time here pertinent contained no provision requiring the lessor to repair the premises or to keep them in good repair. It did permit the lessor to remodel the improvements upon notice to the lessee. In September, 1970, Phillips undertook to remodel the premises by removing the existing concrete islands and constructing new ones and by installing four new dispensers to replace existing ones. Phillips contracted with Vick-Linte-cum General Contractors, Inc. to perform the work. Installation of the new dispensers required partial replacement of underground lines from storage tanks to the dispensers. Vick-Lintecum employed J. Palmer Jeffries to do such plumbing work.

The concrete islands on which the dispensers were located were removed in an area of some three by five feet and an excavation of some two feet below the surface was made, exposing the existing service lines. Jeffries removed the lines from the dispensers to an elbow connection on the service line. The elbow was some eight inches beyond the wall of the excavation. Before the connection was removed, the pressure pump in the tank was turned off and the line was capped. The pump was then turned on again to permit service to other dispensers on the same line. The line to the new dispensers was then measured and laid and attached to the service line. The new line was capped at the point of attachment to the dispenser. It remained uncovered for two or three days until the new island was laid. Thereafter the new dispenser was installed.

The dispenser here involved was installed toward the end of September, 1970. In December, Borden’s bookkeeper told him that the records showed a considerable loss of Flite-Fuel, the Phillips high-test gasoline. Borden could not account for the loss. He notified Phillips and on either January 9 or 10,1971, Phillips representatives dug up the concrete paving and discovered a leak in the service line from the Flite-Fuel tank. The leak was in the old service line at a point, described by witnesses, as from one to eighteen inches from the point where Jeffries had removed the old connection and attached the new line. Borden who was present when the source of the leak was discovered described it as being “by pump three about eighteen inches or so under the concrete that had never been removed in the drive way.” He described the defect in the pipe as a “split” which ran between two pitted holes in the pipe. The defective piece of pipe was removed and replaced. The removed piece was lost by Phillips and not produced at the trial.

According to plaintiff’s records, he lost some 28,000 gallons of gasoline from September, 1970 until the leak was repaired. Plaintiff brought suit against Phillips, Vick-Lintecum and Jeffries for the lost gasoline for which he had paid Phillips, including rental, $9,011.08.

Plaintiff’s claim against Vick-Lintecum and Jeffries was submitted to the jury on the theory that Jeffries, in installing connecting pipes, caused a hole or split to come in existing pipes. The claim against Phillips was submitted on the theory that either the persons employed by them to install the new dispensers caused a hole or split in existing pipes, or that after the dispensers and connecting pipes were replaced and installed, Phillips failed to inspect the gasoline dispensing system to determine whether or not it was leaking.

The verdict was in favor of plaintiff and against Phillips for $8,000. The verdict was in favor of Viek-Linteeum and Jeffries and against plaintiff.

On Borden’s appeal, he contends that the trial court erred in sustaining an objection to his witness, Larry Engleman, testifying as an expert witness. The trial court sustained the objection on the grounds that, although in answers to interrogatories, plaintiff had listed Engleman as a witness, plaintiff’s response to an interrogatory calling for the name of any person employed by plaintiff or acting in his behalf as an expert on the gasoline leakage was “None.” In his brief, Borden asserts that Engleman “was not employed or acting on behalf of George Borden as an expert but was merely called upon to give an opinion as a skilled witness who possessed experience not acquired by an ordinary person with respect to piping.”

The difficulty with this assignment is that, upon the sustaining of the objection by the trial court, no offer of proof as to what the witness would testify to was made. Absent such an offer of proof, there is no way to determine what if any prejudice resulted to plaintiff from the trial court’s ruling. Therefore, there is no basis for appellate review of the trial court’s action. Moore v. Parks, 458 S.W.2d 344, 348[5, 6] (Mo.1970); Thayer v. Sommer, 356 S.W.2d 72, 80[11, 12] (Mo.1962).

Appellant Borden’s second point is that his motion for new trial should have been sustained because the verdict of the jury was against the evidence and opposed to natural and physical laws. The weight of the evidence is not a matter for an appellate court. Wilson v. Concordia Farmers Mutual Insurance Co., 479 S.W.2d 159, 161[1] (Mo.App.1972); Neavill v. Klemp, 427 S.W.2d 446, 449-450[13-15] (Mo.1968). This is particularly true in a case such as this in which the jury has found against the party having the burden of proof. Strickner v. Brown, 491 S.W.2d 253, 255-256[3, 4] (Mo.1973). No relief may be granted by this court on the basis of this assignment of error.

Turning to the appeal of Phillips, that appellant’s first contention is that the trial court erred in failing to sustain its motion for a directed verdict at the close of all of the evidence and its post-trial motion for judgment, because Phillips as owner-lessor had no duty to keep the premises in repair or to inspect the pipe for leaks. Phillips also contends that its motions should have been sustained because of the absence of credible evidence to support a verdict against it.

Respondent Borden states that he is relying upon the rule which requires a lessor who has no duty to repair leased premises but who voluntarily undertakes to do so to make such repairs in a non-negligent manner. See Malon v. Service and Management Company, 416 S.W.2d 44, 47[3] (Mo.App.1967). He further relies on the rule that lessor is not relieved of liability in such instance by reason of his employing an independent contractor to do the work. See Vitale v. Duerbeck, 332 Mo. 1184, 62 S.W.2d 559, 560-561[1] (1933).

In this case, the claim against Phillips was submitted by Borden on the grounds that the contractors engaged by Phillips negligently made the repairs or alternatively that Phillips’ failure to inspect the work was negligence. The charge of negligence which would have been imputed to Phillips by reason of the relationship with Viek-Linteeum and Jeffries was submitted against those two parties as the basis of Borden’s recovery against them. The jury found in favor of Vick-Lintecum and Jeffries and thereby found that neither of them had negligently caused the break in the pipe. Having so found with respect to those parties and there being no error presented by Borden requiring retrial of the claim against Vick-Lintecum and Jeffries, Borden cannot recover against Phillips on the asserted ground of negligence on the part of the contractors. Lynch v. Hill, 443 S.W.2d 812, 818[6, 7] [8] (Mo.1969); Stoutimore v. Atchison, T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658, 659-660[1] (1936).

There remains then, insofar as Phillips’ assertion is concerned, the question of whether or not the alternative charge of negligence on the part of Phillips in failing to inspect the gasoline dispensing system after the pumps and connecting pipes had been replaced and installed was a ground upon which respondent might recover against Phillips.

Assuming, without the necessity for so deciding in this case, that Phillips owed Borden the duty of inspecting the work of its contractors (see Schwartz v. Zulka, 70 N.J.Super. 256, 175 A.2d 465, 467-468[2-4] (1961); 2 Restatement of Torts 2d § 412, p. 382 (1965)), plaintiff’s case must fail because of the absence of evidence that an inspection would have reasonably been expected to uncover the defect in the pipe which caused the leak.

The break in the pipe occurred in a section of pipe not replaced by Jeffries. Jef-fries did remove a connection at a point from one to eighteen inches, according to various witnesses, from where the break occurred. According to plaintiff, who saw the work in progress and could see the protruding end of the pipe which did break, the pipe was rusty and covered with dirt. When it was removed following the discovery of the source of the leak, plaintiff found that on the bottom of the pipe it was rusted and pitted, with a four or five-inch split between two holes. Another witness for plaintiff testified that the break in the pipe was such that one half of the gasoline going through the pipe would be lost through the hole. However, for some three days during which the new pump was being installed, Borden observed no evidence of a leak in the area which had been excavated for the connection between the old and new pipe. Although plaintiff is not bound by Jeffries’ testimony, Jeffries’ testimony on this score is consistent with that of plaintiff. The feeder line in which the break occurred was in use during the three-day period, except for brief times when it was shut down to permit Jeffries to remove the old fittings and replace them. Thus, there was no evidence that, during the period in which the feeder line was exposed and before it was re-covered with dirt and sand and eventually with concrete, there was a leak in the old feeder pipe. Borden himself testified that, insofar as his observation was concerned, there was no indication to him of any trouble in the feeder line system.

Plaintiff’s recovery on the theory that failure to inspect caused the loss must depend upon proof that inspection would have revealed the leak. In this case, the inspection would necessarily have to have been undertaken prior to the time that the excavation was closed and the area covered with concrete. There was no evidence that the leak existed at that time and therefore no proof that proper inspection would have revealed it.

Plaintiff asserts that his evidence that his gasoline losses increased “astronomically” during September would justify the conclusion that the leak began at or near the time of the replacement of the pump involved and, inferentially, further justify the conclusion that inspection prior to putting the new pump in service would have revealed the defect. The evidence did show that the replaced pump went into service on September 25, 1970. Although plaintiff’s wife and bookkeeper testified to a loss of some 4,000 gallons of fuel in September, 1970, compared with a previous high loss of 559 gallons in May, 1970, it was shown that this computation failed to consider the gasoline on hand and in the tank at the end of the month, some 2,939 gallons. In any event, a loss of the proportions of 1,200 gallons per month, which is what the testimony reduces it to, would undoubtedly have been such as to have produced some evidence of leakage in the excavation had it been occurring before the excavation was filled. There was no testimony to such effect and there was no basis to assume that the break and the remodeling occurred simultaneously.

At the trial, Borden amended his petition to specify a failure to inspect or test the gasoline dispensing system after the pumps had been replaced. At the trial, failure to inspect alone was the ground of negligence submitted and on this appeal he argues both failure to inspect and to test. Specifically he contends that the jury could have found negligence on the part of Phillips for failing to require a “more professional type of inspection” than merely putting the lines under pressure and conducting a visual check for leaks. At the trial, plaintiff offered no evidence whatsoever about what test could or should have been made. Jef-fries did testify that in new service station construction gasoline line plumbing is sometimes checked by putting it under air pressure. Jeffries explained why such procedure was not followed in the case of an operating station such as that of Borden. His testimony would not have supported a finding that such a test should have been employed. There was no evidence from which the jury might have concluded that some unidentified “more professional” test should have been required.

Thus to return a verdict in favor of plaintiff on his theory of failure to inspect, the jury must first have inferred that the leak was in existence during the remodeling and further have inferred that inspection would have revealed the defect. Such conclusion could have been reached only by surmise and speculation as there was no evidence to support it. “A jury’s verdict cannot be based upon mere speculation or conjecture.” Quinn v. St. Louis Public Service Company, 318 S.W.2d 316, 323[11] (Mo.1958).

The judgment in favor of Vick-Lintecum General Contractors, Inc. and J. Palmer Jeffries is affirmed. The judgment in favor of George D. Borden against Phillips Petroleum Company is reversed.

Affirmed in part; reversed in part.

All concur.


text:
    The CITIZENS BANK OF WARRENSBURG, Appellant, v. OGDEN EQUIPMENT COMPANY, INC., et al., Respondents.
    No. KCD 27212.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Garrett R. Crouch, C. B. Fitzgerald, War-rensburg, for appellant.
    Edgar S. Carroll, Warrensburg, for respondents.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment for $5,695.56 against bank and in favor of payee of check, based upon nonpayment of check which bank officer represented to payee would be paid.

Tom Ogden was in the farm implement business in Warrensburg, operating as Ogden Equipment Company, Inc. (“Ogden”). Ogden banked with The Citizens Bank of Warrensburg. Late in 1966 and early in 1967, Ogden experienced financial difficulties. It had drawn a check on its Citizens account to Morris Plan for $5,632.50 which had not been paid and returned because of insufficient funds. It also was indebted to Citizens on two notes and Citizens also held numerous customers’ purchase money notes which had been executed by Ogden customers and transferred, with recourse, to Citizens.

Early in January, 1967, Mr. Ogden decided to hold a dispersal auction sale of the company’s stock of farm machinery. On January 4, 1967, Mr. Ogden, following a conference with a Morris Plan representative and Mr. Adrian Harmon, executive vice-president of Citizens, executed an “agreement,” according to which the proceeds of the sale were to be deposited with Citizens and Citizens was to pay the insufficient funds check payable to Morris Plan “immediately after all sums which I owe to The Citizens Bank of Warrensburg, Missouri, has (sic) been paid.”

Mr. Ogden discussed the proposed sale with Bob McWhirter, a dealer in used farm equipment in Baxter, Iowa. McWhirter suggested that Mr. Ogden hire the Snells of Mexico, Missouri to conduct the auction. Mr. Ogden did so and arrangements were made by Mr. Ogden with McWhirter and the Snells for them to run some machinery they owned through the sale. Ogden was to receive a 5% commission on McWhirter’s machinery sold at the sale.

The sale was held on January 28, 1967. The net sales price of McWhirter’s machinery sold was $4,053.75. The clerk of the sale was Ms. Jeanette Smith, an employee of Ogden. Purchasers of machinery gave her the price they paid for their purchases, primarily in the form of checks. Sometime during the afternoon of the sale, Mr. Chris Schwensen, a vice-president of Citizens with whom Mr. Ogden transacted about half of his banking business, appeared at the sale and assisted Ms. Smith in taking the receipts of the sale. A deposit slip was prepared and $23,772.77 in cash and checks was taken by Schwensen and deposited in the bank. On Monday, January 31,1967, an additional $3,744.05 of sale proceeds was deposited to Ogden’s account.

On the evening of the sale, Mr. Ogden discussed with Schwensen the January 4 arrangement for paying the indebtedness to the bank and the Morris Plan check.

On the evening of the sale, checks were written on the Citizens account of Ogden payable to McWhirter for $4,053.75, the amount due McWhirter for his machinery which had gone through the sale; to the Snells for some $3,150.00; to equipment manufacturers for machinery sold, including one for some $12,000.00.

According to McWhirter, Mr. Ogden and Wayne Snell, the checks payable to McWhirter and the Snells were discussed with Schwensen and Schwensen assured them that the checks would be paid.

Prior to the sale deposits, Ogden’s balance in the Citizens account had been $354.49. Checks drawn on the Ogden account in connection with the sale and shortly thereafter totalled some $33,000.00.

On Monday, January 30, the Morris Plan check was paid from the account in accordance with the January 4 agreement. The account was debited for approximately $15,-000, the amount the bank claimed Ogden owed it. According to Mr. Ogden, he had not anticipated that the bank’s claim would be so large, there having been no prior discussion with the bank about including defaulted customers’ obligations. Following a conference between Mr. Ogden and Schwensen and Harmon, at which Mr. Ogden told the bankers that the balance in the account following the bank’s action would not cover the checks issued in connection with the sale, the bank credited Ogden’s account with $3,591 for notes which the bank thought might be collectible. The bank agreed to the payment of payroll and miscellaneous checks of about $1,000. The Ogden account was “flagged” to hold about $10,000 until February 13, 1967, to give out-of-town checks received at the sale time to clear.

McWhirter deposited his check in his local bank and was notified that the check was returned for insufficient funds. He called Harmon and was told that the check was drawn on uncollected funds and assured McWhirter that his check would be good when the other checks cleared and told McWhirter he would let him know when his check could be cashed.

On around February 13, Harmon called McWhirter and told him that the outstanding checks would be paid on a first come first paid basis. McWhirter came to War-rensburg and, because his first check had not been returned to him, went to Ogden and got a second check, dated February 14, 1967, for the same amount as the original check. Accompanied by his attorney, McWhirter went to Citizens to cash the check but the cashier refused to pay it, stating that “the matter was in court.” Inquiry at the courthouse failed to produce information about any such action.

On February 14, Citizens filed its Petition in Interpleader, by which it tendered into court the $8,737.82 balance in the Ogden account. The petition alleged that checks in the amount of $35,284.69 on the Ogden account had been presented to it by the named defendants, including McWhirter. It asked the court to require that the defendants interplead to determine who was entitled to the funds on deposit.

Eventually, Ogden was adjudicated bankrupt. The fund which was the subject of the interpleader was paid to the trustee in bankruptcy. McWhirter received nothing from the bankruptcy proceedings.

McWhirter and three other check holders, named as defendants in the interpleader action, filed answers to the interpleader petition and counterclaims against Citizens Bank. This appeal is concerned only with the McWhirter counterclaim.

McWhirter’s counterclaim alleged that he accepted Ogden’s check upon the promise of Schwensen, acting on behalf of the bank, that the check would be honored upon presentation for payment. The counterclaim further alleged that such representation was fraudulent. The charge of fraud was not pursued and the counterclaim was submitted on the theory that either Schwensen or Harmon or both told McWhirter that the Ogden check would be honored by the bank. The jury returned a verdict in favor of McWhirter for $5,695.56, being the amount of the check plus interest. The bank has appealed from the judgment entered on the verdict.

On this appeal, the first complaint of the appellant is that respondent’s counterclaim was insufficient to state a cause of action for fraud. That question need not be pursued, inasmuch as fraud was not the basis upon which the counterclaim was submitted. Appellant does not contend that the petition is insufficient to support the basis of recovery submitted. Disregarding the allegation of fraud, the petition does state the ultimate facts relied upon as the basis of recovery by respondent.

By three of its points, appellant attacks, on various grounds, instructions given at the trial. Appellant has, however, ignored Rule 84.04(e), requiring that questioned instructions be set out in the argument in appellant’s brief. Such failure nullifies the assignments of error relating to the instructions. Lynch v. Rosenthal, 396 S.W.2d 272, 278[7] (Mo.App.1965); Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 91-92[6] (Mo.App.1972).

Appellant contends that the trial court erred in not discharging the bank as a party at the time that it ruled that inter-pleader was a proper procedure. The transcript on appeal does not show that any request for such ruling was ever made in the trial court by motion prior to trial and the matter is not referred to in appellant’s motion for new trial. This matter has not been preserved for appellate review. Rule 83.13(a).

The same defect exists with regard to the complaint that the verdict is based upon a theory not pleaded. No such objection was voiced in the trial court.

Appellant’s final point, submitted without citation of authority in support, is that the trial court erred in striking, for cause, members of the jury panel for the reason that they were depositors in appellant bank. Appellant asserts that such action deprived it of a “representative jury panel.” Four members of the jury panel were struck for cause by the court for this reason.

Appellant argues that the position of the depositors is analogous to that of residents of a city who are qualified to serve on a jury in an action against the city. This argument overlooks the fact that at common law taxpayers of a city were disqualified to serve in such cases. See Kendall v. Prudential Ins. Co. of America, 327 S.W.2d 174, 177 (Mo.banc 1959). This disqualification has been removed by statute. § 494.-040, RSMo 1969.

“The trial court is not limited to a decision of the strict legal question of the qualification of a juror, but may exercise a sound discretion in that regard, and, when that is done, its ruling will not be disturbed. Glasgow v. Metropolitan Street Ry. Co., 191 Mo. 347, 356, 89 S.W. 915 [1905].” Robbins v. Olson-Schmidt Const. Co., 215 S.W. 779, 780-781[3] (Mo.App.1919). No abuse of discretion has been demonstrated in this case.

Judgment affirmed.

All concur.

DIXON, J., took no part in the consideration or decision of this case.


author: PRITCHARD, Chief Judge.

text:
    Glenn L. WHITMAN and Janet E. Whitman, d/b/a Osage Outdoor Advertising Company, Respondents, v. Robert H. LIVINGSTON, Appellant.
    No. KCD 27394.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      William A. Seibel, Jefferson City, for appellant.
    Alex Bartlett, Jefferson City (Hendren & Andrae, Jefferson City, of counsel), for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

Respondents (herein called Osage) recovered judgment against appellant for breach of an agreement and a note to pay monthly sums for respondents’ maintenance of painted bulletin panels, advertising appellant’s Texaco service station. The judgment, given in the trial court, was for $660.00 for unpaid monthly amounts of $40.00 each (from appellant’s first default to the time respondents erected a new sign for others on April 14, 1972); $77.55 interest, and an attorney’s fee of $225.00, a total of $972.55, and costs. Appellant’s counterclaim was dismissed, and no point is presented as to the trial court’s action in that respect.

The agreement entered into by the parties in June, 1968, provided that Osage should furnish, erect and maintain one advertising sign on private property for a period of 60 months, at a service charge of $40.00 per month. From the evidence it appears that Osage had leased the land upon which the sign was to be located from others. The agreement provided that if any of the monthly payments were not paid when due and remained unpaid for 30 days, the entire contract price should become due and payable at once; and importantly, “The said signs to always remain the property of the party of the first part [Osage], to remain in its exclusive possession and control, and subject to its own use; party of the second part having only the right to have advertising displayed thereon so long as it (sic) complies with the terms of this agreement.” As an adjunct to this agreement, appellant executed this note: “ $2400.00 June 19, 1968. For value received, we, or either of us, promise to pay to the order of OSAGE OUTDOOR ADVERTISING CO. of OSAGE BEACH, MO., $2400.00 (by mail, if requested) with expenses of collection and attorney fees. * * * ”, (payable in installments of $40.00 per month beginning August 15, 1968).

The evidence shows that Osage erected the sign, with appellant’s Texaco advertisement on it, and maintained it long after appellant failed and refused to make the $40.00 monthly payments after November, 1970. Osage removed the sign on October 7, 1971. Appellant says the removal of the sign before the contract had expired by 22 months showed that Osage had not fully performed, and thus Osage cannot recover on the express contract. The contention ignores the acceleration clause of the contract which became applicable when appellant failed to make his monthly payments. That failure, under the contract, rendered the entire remaining sum due, “Generally, maturity acceleration provisions in contracts are valid and enforceable. * * * A contract may provide that default in the payment of installments shall accelerate the whole amount due, but if there is no default there is no acceleration.” 17A C.J.S. Contracts § 507, p. 811. Under the record here, appellant was in default after November, 1970, and Osage made repeated demands for payment of delinquent installments upon appellant before the sign was removed by Osage on October 7, 1971. That removal, says appellant, shows that Osage failed fully to perform. But the record shows that Osage had performed its obligation under the contract by initially erecting the sign with appellant’s advertisement painted upon it. “As a general proposition, the failure of one party to an entire contract to pay an instalment when due under the contract is such a breach as will absolve the other party from all obligations to perform while the default continues.” 17 Am.Jur.2d Contracts, § 429, p. 884. Burns v. Beeny, 427 S.W.2d 772, 775[4] (Mo.App.1968). Thus, Osage was not further obligated to maintain the sign space for appellant after his breach of the contract by failure to pay the installments due after November, 1970. Osage could have left the sign space vacant for the remainder of the contract term, and could have recovered the entire contract price which then remained due. Compare Collier v. Domino Macaroni Mfg. Co., 215 Mo.App. 345, 248 S.W. 981, 982 (1923). But here, Osage’s own evidence shows that on April 14, 1972, before the term of the instant contract had expired, it installed advertising panels on the sign for Village Smorgasbord at a greater price monthly than that appellant was to pay. This evidence of mitigation of damages, which is a proper issue, 25 C.J.S. Damages § 34, p. 704, was in the case, and although it is not an issue here, the trial court very properly excluded any contractual monthly payments due from appellant after April 14, 1972. The burden of proof as to any further possible mitigation of damages after the sign was removed to April 14, 1972, was upon appellant, 25A C.J.S. Damages § 144 e., p. 21, and no evidence thereon was presented by him. The foregoing disposes of appellant’s first three points relating to the claim of Osage’s failure to perform, the court’s apportioning of monthly payments from the breach to the resale of the sign space, and that Osage had rescinded the contract by removing the billboard sign. The remaining three points are upon the basis of a landlord-tenant relationship between Osage and appellant. The contract involved, set forth above, is not a lease, but is a simple contract for the furnishing of signboard space, the signboard itself always remaining the property of Osage during the term. Appellant was entitled, as the trial court granted him, only to the credit of the remaining monthly installments under his contract after the resale of the space to Village Smorgasbord, and was not entitled to any credit for the increased “rental” of $56.00 per month to that firm, as apparently claimed in Point III.

From what has been said before it is apparent that this appeal is without merit and is frivolous on its face. It is therefore ordered, upon respondents’ motion and in accordance with Rule 84.19, § 512.160, RSMo 1969, that damages for a vexatious and delaying appeal in the amount of 10% of the basic judgment, or $74.75, shall be awarded respondents. Boillot v. Income Guaranty Co., 124 S.W.2d 608, 612[7, 8] (Mo.App.1939). This is especially appropriate, where, as here, this unmeritorious appeal has been occupying a number and space upon the docket in this overloaded appellate court, to the exclusion of another case which might have merit, since the notice of appeal was filed May 29, 1974.

The judgment is affirmed and the case is remanded with directions to enter an amended judgment in the amount of $1,047.30 total and interest thereon from the original rendition of judgment on May 20, 1974, and for costs.

All concur.


text:
    William L. RISSLER, Appellant, v. Donna L. RISSLER, Respondent.
    No. KCD 27473.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    Robert H. Kendrick, Joseph B. Polette, Kansas City, for appellant.
    Downs, Pierce & Turner, James O. Turner, St. Joseph, for respondent.
   PRITCHARD, Chief Judge.

This is an appeal from an award to respondent for her attorneys’ fees in the amount of $3,000.00 in a proceeding to modify a divorce decree. The grounds asserted by appellant for error are (1) That respondent failed to produce sufficient evidence that she was unable to meet the expense of litigation; (2) That she failed to produce sufficient evidence of the value and reasonableness of the legal services performed by her attorneys; and (3) That the award was grossly excessive and was an abuse of discretion by the court.

The motion to modify the divorce decree was filed by respondent July 17, 1973, and was overruled by the trial court on March 19.1974. After respondent filed her motion appellant also filed a motion to modify the decree, and an amended motion also, which was filed August 13, 1973. On October 31, 1973, appellant filed a motion to quash an execution for child support, which execution was quashed by agreement upon his payment of the child support due and the costs. On January 7, 1974, appellant filed interrogatories to respondent which were answered. On January 10, 1974, he filed an application for a continuance. On January 22.1974, he filed a motion to compel respondent to make discovery. It is not precisely clear in the record, but it appears that appellant had in his possession certain transcripts of tape recordings and the tapes which apparently recorded office conversations between one of respondent’s attorneys and her. There followed a request by respondent that appellant produce the tapes and transcripts, and after hearing, the court ordered him to produce the tapes, to which he agreed on March 4, 1976. Then appellant filed an answer to the order to produce the tapes and transcripts in which he denied having the taped statement. Respondent then filed a motion to strike appellant’s pleadings and motion to modify “and for order requiring plaintiff to pay the reasonable expenses, including attorney fees, caused by plaintiff’s failure to obey the court’s order”, and further for a reasonable attorney fee for appellant in this cause. After a lengthy hearing, the court struck appellant’s pleadings, and the matter proceeded to a hearing on respondent’s motion to modify. The entire proceedings are contained in a transcript of 210 pages. One of respondent’s attorneys stated that he felt “there is approximately one hundred hours, plus numerous hearings, at least three or four hearings we have been up here on this matter.” Mr. Maurice Pope, a practicing attorney in St. Joseph, Missouri, testified as to the reasonableness of the fee: "THE WITNESS: Well, I think he testified he had spent one hundred hours, is that correct? MR. TURNER: I would say approximately. I didn’t itemize it, but I would say that is most conservative. I know at least that much. THE WITNESS: Of course, I don’t know anything about the case, but I would say that if you have one hundred hours expended that it should be worth thirty dollars an hour.”

Respondent testified that she had the custody of three children: a son 18 years of age, who was out of school and would work the following summer and who was being encouraged by her to go to college; two daughters, ages 15 and 12. Respondent lived in an all brick home in the country for which she was offered $45,000, and she has asked $50,000. At the time of the hearing, the balance of the loan on the residence was $21,000, and she made the payments on the loan. Respondent received $2,500 alimony in gross at the time of the divorce in 1973. Her residence is large, with a three-car garage, air conditioning, central intercom stereo system, color television, piano, grandfather clock and other furniture and appliances. She worked in the Farmers Bank of Stanberry for which she received take-home pay of $265 per month. Appellant paid her $300.00 per month as child support. She computed her expenses for the support of herself and the children at $737.14 per month, which as the trial court found, left her a deficit each month at $172.14. Appellant, according to a financial statement given February 25, 1973, to a savings and loan association, had a net worth of $40,000. He was a builder of homes, having contracts of purchase upon five lots. He was also engaged in the life insurance business as a general agent for Life Investors Management Corporation. In 1972, he made $7,792.16 total commissions from the company, and in 1973, he made $13,953.97. During all of these proceedings appellant represented himself, taking the position that he could not afford to employ an attorney.

It is true that respondent failed to allege in her request for the allowance of attorney fees that she was without funds to meet the expense of litigation. In the posture presented, although it is the better procedure, no such allegation was needed. All that is required is that there be evidence that a spouse has not sufficient means to pay the costs of litigation, including attorney fees. Lester v. Lester, 452 S.W.2d 269, 270[4-6] (Mo.App.1970), where it is said, “Great discretion is vested in the trial court in determining the circumstances under which an award will be made and the amount. [The discretionary factor is present in this case.] But over the threshold of such discretion must cross evidence establishing the need of the wife to have the expense of the litigation borne by the husband.” [Bracketed material added.] See also § 452.355, RSMo (Laws 1973, p. 470, § 12, effective Jan. 1, 1974), Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975); L_ J_ S_ v. V_ H_ S_, 514 S.W.2d 1 (Mo.App.1974). Here the evidence is that the respondent’s income, including the child support paid by the appellant, is far less than his. Obviously, from the record, appellant is in a superior position to that of respondent of remaining successfully and gainfully employed. The evidence shows that respondent has no available or. surplus funds to pay her attorney fees. The matter turns upon the evidence of their respective incomes. Swanson v. Swanson, 464 S.W.2d 225, 229[6-9] (Mo.1971). This disposes of appellant’s first contention adversely to him.

The trial court had the entire file in this case before it, and it was suggested by respondent’s counsel that the court take judicial notice of that file. Respondent’s counsel stated that he has spent, conservatively, at least 100 hours on the case. The trial court noted that appellant was responsible for the delay in the disposition of the case by his resistance to discovery, that recalcitrance resulted in appellant’s counter motion to modify being stricken. Mr. Pope testified that the $3,000 fee was reasonable for the 100 hours of counsel’s time, as being advisory to the court. “The amount of attorney fees is left largely to the discretion of the trial court for the reasons stated in Keefe v. Keefe, Mo., 435 S.W.2d 313, 317[6, 7] and cases cited.” Swanson, supra, loc. cit. 464 S.W.2d 229. The allowance here was supported by the evidence, it was not grossly excessive, and did not constitute an abuse of discretion by the court. Appellant’s second and third contentions are ruled against him.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    FARMERS INSURANCE COMPANY, INC., Respondent, v. Stanley L. MORRIS et al., Appellants.
    No. KCD27482.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.

      Roy W. Brown, Kansas City, for appellants.
    Richard H. Heilbron, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Farmers Insurance Company, Inc., brought this suit to obtain a judgment declaring it not to be liable under an automobile policy issued by it to John B. Cresson, respecting injuries caused when an automobile operated by Mrs. Cresson, the insured’s wife who is now deceased, came into collision with Karen Traynor. The automobile driven by Mrs. Cresson at the time of the accident was owned by her son and daughter-in-law, Mr. and Mrs. John D. Riggs, and was insured by American Family Insurance Company. The defendants named in this declaratory judgment suit were Stanley L. Morris, administrator of the estate of Mrs. Cresson, Traynor and American. The trial court entered judgment for plaintiff. Traynor appeals.

The issue in this case is whether coverage under the Farmers’ policy extended to the Riggs’ automobile involved in the Traynor accident. The only vehicle described in the Farmers’ policy was a 1962 Ford Fairlane owned by John B. Cresson. However the policy also covers liability for personal injury caused by either Mr. or Mrs. Cresson while using a “non-owned automobile.” The question for decision here is whether the Riggs’ 1966 sedan was a non-owned automobile within the definition of the Farmers’ policy which reads:

“Non-Owned Automobile means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile.”

Under the facts in evidence, the Riggs, sedan was not a “substitute automobile” within the policy definition because the Cresson Fairlane at the time in question was not “withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.” The question for determination therefore narrows to the inquiry as to whether the Riggs’ sedan was “regularly or frequently used” by Mrs. Cresson.

The facts with respect to the availability and the use by Mrs. Cresson of the Riggs’ sedan are not in dispute. Riggs was a son of Mrs. Cresson by a previous marriage. The Riggs and the Cressons lived in adjoining homes and had done so for 20 or 25 years.

Riggs owned three vehicles consisting of a 1968 station wagon, a pickup truck and the 1966 sedan. Riggs generally used the station wagon to go to and from work, and the Ford sedan was left at home “the biggest share of the time.” That sedan had been purchased in 1966 and although not purchased for Mrs. Cresson’s particular use, it had been available for her use during all of the 4 or 5 years of the Riggs’ ownership. Mr. Cresson owned a 1962 Ford Fairlane car (the one insured by Farmers), but Mrs. Cresson drove it only once or twice and preferred instead to drive the Riggs’ sedan because it was equipped with power steering. The Riggs permitted her to drive the sedan “whenever she wanted to use it.” The only restriction on her use was that it could be only when Mrs. Riggs didn’t need it. There was no limitation on where she could drive or go in it. During the 4 or 5 years prior to the accident in question, Mrs. Cresson had so used the Riggs’ automobile for shopping, for going to the hairdresser, for the purpose of going on two vacations and for driving to work. In the latter respect, Mrs. Cresson and her son both worked for the same employer and on some occasions Mrs. Cresson rode with her son in the Riggs’ station wagon; on other occasions she took the bus to work; but on still other occasions, particularly when Mr. Riggs was on the midnight shift, she drove the Riggs’ 1966 sedan.

The Riggs parked their sedan in the Cres-son back yard. Sometimes the Riggs would leave a set of keys with Mrs. Cresson when she indicated she wanted to use the car. Otherwise, basically, Mrs. Cresson would have to ask either Mr. or Mrs. Riggs for permission whenever she desired to drive the 1966 sedan, and the keys would then be turned over. When asked whether Mrs. Cresson had ever been refused permission to use the car when she asked for it, Riggs answered “not my mother.”

The principles enunciated in State Farm Mutual Automobile Ins. Co. v. Western Casualty and Surety Co., 477 S.W.2d 421 (Mo. banc 1972) govern the analysis of these facts. The State Farm case required an interpretation of a similar “non-owned automobile” clause and the court stated the general purpose and objective of such a clause as follows:

“State Farm’s policy was intended basically to provide coverage on one designated vehicle (the 1964 station wagon) in return for the payment of a premium based on single car coverage. However, the policy does contain clauses which provide limited additional coverage for that single premium * * *.
******
“Another instance of additional coverage is provided by the policy provision with respect to operation of ‘non-owned’ automobiles. * * * The effect and purpose of such a clause is well stated in a statement with reference to ‘drive other cars’ provisions in an Annotation in 86 A.L.R.2d 937, 940, as follows: ‘The purpose of the “drive other cars” provision in an automobile liability policy is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium.’ ”

Looking at what is meant by the term “frequent or regular use” in light of that general objective, the court considered cases from other jurisdictions and pointed out that some other courts hold that is to be determined solely, or at least primarily, on the basis of the purpose for which the non-owned automobile was furnished, while other courts have decided the question on the basis of length or type of use. The State Farm opinion then holds:

“ * * * we conclude that we should not limit ourselves either to a test of merely determining motive or purpose or one of simply measuring length and extent of availability of use. Rather, each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or violative of the objective of the ‘non-owned automobile’ clause.”

Applying here the criteria required to be considered by the State Farm opinion, the first factor is the matter of the type and length of use of the Riggs’ sedan by Mrs. Cresson. The record shows that she drove this car for virtually every kind of use, including going to and from work, personal shopping and pleasure, and two out of town vacation trips, one of which was the trip which gave rise to the accident with Tray-nor. These uses were spread over a long period of 4 to 5 years, and occurred “whenever she wanted to use it.” This history strongly tends to show regular use.

Turning to the second test mentioned by State Farm, the Riggs’ automobile was not furnished to Mrs. Cresson for one single limited purpose, but rather was for the wide scope of varied uses to which she put it from time to time as already mentioned, including a prior vacation trip similar to the one during which the accident in question occurred. In this respect, this case differs sharply from Equity Mutual Insurance Co. v. Riley, 475 S.W.2d 416 (Mo.App.1971) where the insured used a “non-owned automobile” to drive to and from work only until he could obtain a better one; from Michigan Mutual Liability Co. v. Stallings, 523 S.W.2d 539 (Mo.App.1975) where the insured was driving a “non-owned Army vehicle on return from military encampment; and from Palmer v. Glens Falls Insurance Co., 58 Wash.2d 88, 360 P.2d 742 (1961) where the insured was driving a “non-owned automobile” to a specified repair shop for major repairs. Under the “purpose” test, the facts support a finding of regular use by Mrs. Cresson.

Next for consideration is whether the extension of coverage under Farmers’ policy to the Riggs sedan would be in harmony with the objective of the non-owned automobile clause. The important fact that Mr. Cresson had available his own 1962 Fairlane during all the time Mrs. Cresson used the Riggs’ sedan governs with respect to this factor. As stated in State Farm, the basic idea of this policy provision is to insure “one automobile for one premium” and “to exclude the habitual use of other cars.” It matters not that the Cresson 1962 Fairlane was parked idly in the Cresson garage at home while the Cressons were on their one week vacation trip in the Riggs’ sedan. The more important fact is that Mrs. Cres-son had used the Riggs’ sedan for a period of 4 or 5 years, during which time Mr. Cresson had concurrently been operating his separate owned automobile which was the only one described as such in the Farmers’ policy. Furthermore, it must be observed that even though the Cresson Fair-lane was garaged for the one week vacation period, nevertheless, it was covered during that time under the comprehensive portion of the insurance policy against the significant possibility of loss from such risks as fire, theft, and vandalism. If the Farmers’ policy were to be construed as giving coverage to the Riggs’ sedan, then the objective of the policy provision would be subverted in that the Cressons would get coverage on two cars, both of which were habitually used, while paying premium for only one. This factor distinguishes this case from and requires an opposite result from that reached in State Farm Mutual Automobile Ins. Co. v. Western Casualty and Surety Co., supra, and Equity Mutual Insurance Co. v. Riley, supra. Much more akin to the present case is Nationwide Mutual Ins. Co. v. Bullock, 21 N.C.App. 208, 203 S.E.2d 650 (1974) where it was held that a wife’s use of a relative’s non-owned vehicle was not infrequent or casual but was of a more permanent and recurring nature so as to be excluded from coverage.

The State Farm opinion requires consideration also of “any other pertinent facts.” Such facts which appear in the record here and which are entitled to consideration are that the Riggs’ automobile was parked on Cresson premises; that the Riggs retained possession of the keys to the car; and that Mrs. Cresson generally had to ask permission before each use of the car by her. The parking of the Riggs’ sedan on the Cresson premises is a factor which buttresses to some minor extent the other factors already discussed tending to indicate regular and frequent usage by Mrs. Cresson. Nationwide Mutual Ins. Co. v. Bullock, supra; American Casualty Co. v. Lattanzio, 78 N.J.Super. 404, 188 A.2d 637 (1963).

However, the retention of the car keys by the owner has been regarded by some cases as an indication that the party given permission to use the car was not making “regular and frequent use.” American Casualty Co. v. Lattanzio, supra; Kentucky Farm Bureau Mutual Ins. Co. v. Hill, 278 S.W.2d 729 (Ky.App.1955). On the other hand, regular and frequent use was found to exist even though the owner did retain possession of the keys. Boedigheimer v. Taylor, 287 Minn. 323, 178 N.W.2d 610 (1970). And see Giokaris v. Kincaid, 331 S.W.2d 633 (Mo.1960) where it was held that a permitee was not making regular and frequent use of a non-owned automobile even though she did have a set of keys to the non-owned car.

With respect to Mrs. Cresson being required generally to ask permission for each use, such a factor has been considered by a number of cases to indicate a lack of regular and frequent use. Juzefski v. Western Casualty and Surety Co., 173 Cal.App.2d 118, 342 P.2d 928 (1959); DiOrio v. New Jersey Manufacturers Ins. Co., Inc., 63 N.J. 597, 311 A.2d 378 (1973); National Emblem Ins. Co. v. McClendon, 481 S.W.2d 186 (Tex.Civ.App.1972); American Casualty Co. v. Lattanzio, supra; Kentucky Farm Bureau Mutual Ins. Co. v. Hill, supra. On the other hand, other eases have found regular and frequent usage despite the existence of this factor. Nationwide Mutual Ins. Co. v. Bullock, supra; Boedigheimer v. Taylor, supra.

The most reasonable conclusion based on weighing all of the factors mentioned is that Mrs. Cresson did regularly and frequently use the Riggs’ sedan. That automobile therefore did not constitute a “non-owned automobile” under the Farmers’ policy. At the very least, the conclusion by the trial court to that effect should be sustained under Rule 73.01 as explicated by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Affirmed.

All concur.


text:
    CITIZENS NATIONAL BANK, Respondent, v. William C. HANES, Appellant.
    No. KCD 27489.
    Missouri Court of Appeals, Kansas City District.
    Aug. 30, 1976.
    James F. Duncan, Dennis R. Rilinger, Kansas City, for appellant.
    Robert L. Shirkey, Kansas City, for respondent.

      Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Citizens National Bank sues Hanes on his guaranty of loans made by the Bank to Allied Broadcasting Company. The trial court, after hearing without a jury, entered judgment for the Bank. Hanes appeals.

The facts are undisputed. On January 5, 1970, Allied had 23 stockholders of whom 19 owned 320 shares each and four of whom owned 160 shares each. Allied had become financially straitened and needed bank loans. The Bank was willing to extend the needed money, but only if all of Allied’s stockholders would personally guarantee the loans. In response to that demand, all of the then existing 23 stockholders did give their personal guaranties in proportion to their respective stock holdings.

Hanes, like the other stockholders, signed such a guaranty. However, he added to his the following insertion written in his own hand:

“Not withstanding any of the above, this guaranty shall become effective only if similiar [sic] guaranties shall be in effect by all shareholders of Allied and shall be void at any time that any Allied shareholder does not have a similiar [sic], proportionate guarantee in effect.” (emphasis in the original).

Subsequent to the giving of these guaranties, additional capital stock totaling 30,-000 shares was issued by Allied. Of these 30,000 shares, 24,200 were acquired by those who had already been shareholders on January 5, 1970. Six new shareholders acquired the remaining 5,800 shares. None of the new shareholders were requested to give guaranties to the Bank, and none of the 21 old shareholders who increased their stock holding gave any new or increased guaranties.

By mid 1971, Allied’s financial position deteriorated to the point where it defaulted on its bank obligations, and on July 20, 1971, the Bank wrote to Hanes demanding payment by him under his guaranty. To that demand, Hanes responded by letter (Exhibit 15) dated July 26, as follows:

“Please send me a zerox copy of my guaranty agreement and a list of all shareholders whose guaranty you have.
“My guaranty was limited to the ratio of shares which I held as a per cent of the shares outstanding and was valid only if all other then shareholders also miaran-teed this debt.”

The Bank supplied the list so requested, but the dispute between the parties continued. By letters dated October 28, 1971 (Exhibit 12) and December 14, 1971 (Exhibit 13), Hanes continued to assert his freedom from liability by reason of his addendum to the guaranty. In the October and December letters, however, he broadened his position from that stated in the July letter, in that in the latter two letters he emphasized that “all shareholders are not involved and were never involved and no relationship to stock ownership has been maintained” and that “I had made a decision against any enlargement of my position in Allied and felt sure that it would be necessary for others to provide equity capital and this would obviously dilute my earning opportunity if the corporation succeeded so I therefore desired to correspondingly limit my loss potential.” Despite these letters from Hanes, the Bank continued to insist upon his liability under the guaranty. Faced with his refusal to pay, the Bank filed this suit.

Hanes assigns as error, first, that he should have received judgment as a matter of law because the handwritten addendum unambiguously voided his obligation under the admitted facts. Alternatively, as his second point, he contends that if the guaranty can be considered as ambiguous, then the intrinsic evidence received by the court fails to support any interpretation which would make him liable. Neither of those points can be sustained.

The cases recognize that an ambiguity in an instrument can be either patent or latent. A patent ambiguity is one which is apparent on the face of the instrument. A latent ambiguity, in distinction, occurs where an instrument is unambiguous on its face but becomes open to more than one interpretation when applied to the factual situation in issue. Boone County v. Blue Cross Hospital Service, 526 S.W.2d 853, 857 (Mo.App.1975) and cases there cited.

In the situation here, there were only 6720 Allied shares outstanding in the hands of 23 shareholders on January 5,1970, when Hanes’ guaranty was executed. By the time of Allied’s default, 30,000 additional shares had been issued with six additional shareholders. The language inserted by Hanes by way of addendum to the guaranty (that the guaranty shall be void if any shareholders ceased to have a similar proportionate guarantee in effect) could reasonably be thought to have reference to either the shareholders and shareholdings as of January 5, 1970, or the larger number of shareholders with different shareholdings as of the time of default in mid 1971. Because of this uncertainty, the guaranty does contain a latent ambiguity.

Looking at all of the circumstances of the case, the trial court properly concluded that the addendum in question did refer to the shareholders and their holdings as they existed on the date of the guaranty, January 5, 1970. One basis lending support to this interpretation is the fact that Hanes’ handwritten insertion immediately follows and is made a part of the same paragraph which provides in the typewritten portion as follows:

“This guaranty shall be a continuing guaranty, provided that it may be discontinued as to any of the undersigned only by his giving written notice by registered mail to the Bank of the discontinuance of this guaranty as to the undersigned giving such notice, but no such notice shall be effective in any respect until it is actually received by the Bank and shall not affect the obligations hereunder of the undersigned giving such notice or the Bank’s rights or authority hereunder with respect to any Bank Debt existing at the date of receipt of such notice by the Bank, any interest subsequently accruing thereon or any expenses incurred by the Bank in endeavoring to collect any of such Bank Debt and in enforcing this guaranty against such undersigned. This guaranty shall survive the death of any of the undersigned, provided that upon actually receiving written notice, sent to the Bank by registered mail, of the death of any of the undersigned the Bank shall be deemed to have thereby received a notice of discontinuance on behalf of such deceased undersigned. Any such notice of discontinuance by any of the undersigned shall not affect the obligations hereunder of any other of the undersigned.”

The trial court deemed the second half of Hanes’ insert to be a response to and limitation upon the effect of this paragraph immediately above quoted. As the trial court stated in his ruling, Hanes should be understood as saying “[i]f any of the others withdraw, you can assume I am withdrawing too.” Although Hanes now argues that the second half of his insert was intended to require a new guaranty with respect to ownership of any new stock, the trial court’s interpretation that this clause had reference to the typewritten provision to which the addendum was appended is the more persuasive construction..

Also persuasive in favor of the trial court’s view is Exhibit 15, the letter written by Hanes dated July 26, 1971. In that letter to the Bank he placed his defense against liability exclusively on the ground that his guaranty “was valid only if all other then shareholders also guaranteed this debt.” (Emphasis added). Hanes admitted in his testimony that at the time he wrote this letter he was aware that additional stock had been issued by Allied subsequent to January 5, 1970, and that some of the new shareholders had not been owners of stock on the earlier date. Yet, despite this knowledge, he limited his defensive stance to one involving only the “then” shareholders as of January 5, 1970, and he made no point at all with respect to whether the new shareholders had joined in the guaranty or the old shareholders who increased their holdings had correspondingly expanded their respective guaranties.

Recognizing the adverse impact of the July 26, 1971, letter, defense counsel tried to explain it away on the ground that Hanes did not have a copy of his guaranty agreement when he wrote the July 26 letter, and that he had forgotten the terms thereof. This appears explicitly during the course of a colloquy between the trial court and defense counsel as follows:

“THE COURT: Then does it follow from your position that you are saying that your client, in Plaintiff’s Exhibit 15, misinterpreted this unambiguous language?
MR. DUNCAN [Defense Counsel]: Excuse me. May I see it? I don’t think so, Your Honor. I think it’s quite clear that he was only speaking from memory at this point. He did not have a copy of the guaranty agreement. He was writing to the bank saying, ‘Please send me a copy of the guaranty agreement.’ * * * He did not have before him a copy of the guaranty when he wrote 15. When he got the guaranty he wrote 12.
THE COURT: You are not taking the position that Exhibit 15 says that it was his understanding it should be proporti-nate [sic] to all shareholders as distinguished from proportinate [sic] to the then shareholders? You concede it says in this it be proportinate [sic] to the then shareholders based on his faulty recollection?
MR. DUNCAN: Based on his faulty recollection, yes, sir.
THE COURT: I wanted to be sure.
MR. DUNCAN: Yes, sir.”

Yet when Hanes himself took the stand, he flatly repudiated that attempted explanation by his counsel. The record shows the following questioning of Hanes by the court:

“THE COURT: * * * Now, my question is to you, sir, if you felt as strongly about this matter as you have indicated at the time, that is before the guaranty was made, and if you felt as strongly as you indicated in the second paragraph of your letter of December 14, 1971, how do you explain the fact when you wrote this letter, which was Exhibit 15, that you had forgotten that was your position?
THE WITNESS: Exhibit 15? Exhibit 15 was just merely a response that I received when payment was demanded, and I’m not taking the position that I had forgotten anything at that time. I knew that my guaranty, or at least I thought it was, fully conditioned upon the guaranty being and remaining proportionate. * *
THE COURT: Then you don’t agree with your attorney’s interpretation of that language?
THE WITNESS: I heard him say maybe I forgot. I didn’t forget what the deal was.” (emphasis added).

Confronted with his client’s disagreement with the first attempted explanation for Exhibit 15, his counsel now makes another effort to explain the July 26, 1971, letter (Exhibit 15) by arguing in his brief in this court that “[t]he obvious and correct interpretation of this letter is that defendant was referring therein only to the condition precedent.” (By condition precedent defense counsel is referring to the first part of the addendum to Hanes’ guaranty which reads “this guaranty shall become effective only if similiar [sic] guaranties shall be in effect by all shareholders of Allied . ”) The short answer to this fallback position is that Hanes in his testimony quoted admitted that he was aware at the time he wrote Exhibit 15 that his guaranty required the guaranty of other shareholders being and remaining proportionate. This reflects that Hanes in writing Exhibit 15 had in mind all of the addendum, not merely the first part of it. Exhibit 15, supplemented by Hanes’ testimony, strongly tends to show that the whole of Hanes’ addendum referred solely to those shareholders and the shareholdings as they existed on January 5, 1970.

A third consideration influenced the trial court’s interpretation of the intention of the addendum in question and also carries persuasive effect. All parties in interest knew that Allied was having financial trouble, that additional stock had been issued from time to time subsequent to the original incorporation, and that still further floatation of additional shares might be required subsequent to January 5, 1970. Most certainly all these parties must have realized that the sale of additional shares would be sharply discouraged, if not made completely impossible, by a requirement that the purchaser of additional shares not only pay for those shares, but also incur a personal obligation by way of guaranty of past corporate indebtedness. Hanes himself admitted that, “[i]t wouldn’t increase its marketability if in addition to paying for the stock people were guaranteed — required to guarantee a prior loan.” As stated by the trial court, such an intended meaning “would have virtually taken away any hope that they had to appeal to people outside to come in and help them by selling stock to outsiders.”

In sum, the trial court committed no error in ruling the guaranty agreement ambiguous and interpreting it as imposing liability upon Hanes under these circumstances.

Affirmed.

All concur.

      . Hanes’ brief distinguishes the two parts of the addendum as follows: “The first clause of the provision stated a condition precedent, under which defendant’s liability under the guaranty agreement was conditioned upon plaintiffs obtaining proportionate guaranties from all twenty-three individuals holding Allied stock on January 5, 1970. The second clause of the provision stated a condition subsequent under which defendant’s liability under the guaranty agreement was voided if plaintiff failed to have similar proportionate guaranties from all Allied shareholders at any time.”