author: HOWARD, Judge.

text:
    R. Dean MILLER, Appellant, v. Paul GOHMANN, Appellee.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.
    Discretionary Review Denied May 16, 1978.

      Laurence J. Zielke, Zielke, Davidson & Risch, Louisville, for appellant.
    David Rowe, John C. McCord, Boehl, Sto-pher, Graves & Deindorfer, Louisville, for appellee.
    Before COOPER, HOWARD and WHITE, JJ.
   HOWARD, Judge.

This is an appeal from a judgment entered in favor of plaintiff-appellee, Paul Gohmann (hereinafter referred to as Goh-mann), for a real estate broker’s commission against defendant-appellant, R. Dean Miller (hereinafter referred to as Miller). Miller’s counterclaim against Gohmann for breach of agency was dismissed.

Miller and Gohmann, a real estate broker, entered into several real estate listing contracts for the sale of Miller’s real property located in Jefferson County, Kentucky. Most of these listing contracts were signed by Miller and his wife, Mary Jane Miller. At some point in time, Miller and his wife became estranged and she moved to Mississippi. She filed for divorce with the divorce apparently becoming final in the spring of 1975.

Title to the subject property was, in September, 1975, still in the name of Miller and his wife. On September 26, 1975, pursuant to a listing contract, a real estate agent brought to Gohmann an offer to purchase Miller’s property. Gohmann delivered the offer to Miller; the offer was rejected; and a eounter-offer was made which was accepted by the purchasers on September 28, 1975. The contract called for “Delivery of Deed with closing to be by October 30,1975, subject to readiness of lending institution.”

Property settlement negotiations between Miller and Mary Jane were being actively conducted. A quit-claim deed from Mary Jane of her interest in the property was being sought by Miller. It was known by Gohmann that Mary Jane had not, as of yet, conveyed her interest at the time that the counter-offer was made and accepted.

On September 29, 1975, an Agreement to Release of Contract was entered into between Miller (as seller) and Thomas Walker (as purchaser) wherein it was agreed between the parties that:

1) Purchaser by the Agreement extends to seller a time of 5 days excluding Sunday, from October 1, 1975 to October 6, 1975 at 5:00 P. M., to effect written agreement for seller’s wife to execute deed to subject property.
2) In the event the Agreement as mentioned in paragraph 1 shall not be obtained prior to October 6, 1975 in writing then and in such event the contract dated September 26, 1975 shall automatically become null and void, and each respective party thereto as seller and purchaser shall be released from performance and compliance with said contract and the same shall be null and void.

The quit-claim deed was not obtained in the requisite period of time, and the sale between Miller and the Walkers was not consummated. Gohmann thereafter instituted suit to recover the agreed upon real estate commission. Miller counterclaimed for breach of agency alleging that Goh-mann had contacted Mary Jane in disregard of Miller’s instructions, and because of that action by Gohmann, Miller was unable to obtain the needed quit-claim deed.

Miller raises three issues on this appeal, to-wit: 1) Did the trial court err in finding that Gohmann procured a ready, willing and able buyer; 2) Did the trial court misapply the law of Kentucky by finding that Gohmann had knowledge of the defect of title, but was still entitled to a commission; and 3) Did the trial court err in dismissing the counterclaim against Gohmann for breach of agency, and err in finding that the breach of agency did not prevent Goh-mann from being entitled to his commission.

It is well established in Kentucky that when a real estate broker produces a person who is ready, willing, and able to purchase the property on the prescribed terms, the broker is entitled to his commission. Shanklin v. Townsend, Ky., 431 S.W.2d 874 (1968). The commission is then due the broker, regardless of whether the transaction is consummated. Brinton v. Motte, Ky., 244 S.W.2d 480 (1952).

We agree with the trial court that Goh-mann produced a buyer who was ready, willing and able to perform. However, we do not feel that Gohmann was entitled to a broker’s commission from Miller based on the following reasoning.

In Orr et a1. v. Woolfolk, 250 Ky. 279, 62 S.W.2d 1029 (1933), a widow with only a dower right had undertaken to sell the property in fee. The purchaser had been assured that the title would be straightened out prior to the actual conveyance. The court states, at page 1030, after discussing the law concerning when a broker is entitled to a commission, that:

. Thus, if the deal falls through because of a defect in the title of the principal of which the agent had actual knowledge, or he had possession of facts sufficient to put a prudent person on inquiry, and, if pursued with reasonable diligence, he would have obtained that knowledge, the broker cannot recover commissions on the transaction.

This concept was affirmed in Dunn v. Kramer, 306 Ky. 377, 208 S.W.2d 41 (1948) in relationship to any type of encumbrance which would legally justify the purchaser in refusing to accept the deed. The court states, on pages 42-43, that:

In this case the seller had undertaken to furnish a good and merchantable title to the property. He could not do so because of the existence of the Gorden lien. The existence of this lien was known to appellant when he began negotiations with the purchaser. The failure to have it removed, or to reach agreement on a new arrangement, resulted in the purchaser’s withdrawal. Appellant with his principal both assumed the risk that the sale could not be completed because of the existence of this lien.

In the instant case, Gohmann was aware that Mary Jane still retained an interest in the property and that a quit-claim deed would have to be obtained from her. We feel that Gohmann is precluded from obtaining his commission because of his actual knowledge of Mary Jane’s interest in the property.

There was conflicting evidence presented as to the allegations of Miller’s counterclaim against Gohmann. The trial court found that there was no proof to support those allegations. Whether Miller had or had not instructed Gohmann not to contact Mary Jane concerning this transaction is a question of fact. Findings of fact of the trial court will not be set aside unless clearly erroneous. CR 52.01.

We are reversing this case with directions to the trial court to dismiss the complaint of appellee, Gohmann. We are affirming the dismissal by the trial court of Miller’s counterclaim.

All concur.


source: Caselaw Access Project

author: MARTIN, Chief Judge.

license: Public Domain

text:
    DANE SHEET METAL, INC., and Michigan Mutual Insurance Company, Appellants, v. Stanley Eugene JOHNSON and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 24, 1978.
    Rehearing Denied May 5, 1978.

      Larry L. Johnson, William P. Swain, Boehl Stopher Graves & Deindoerfer, Louisville, for appellants.
    Robert L. Catlett, Jr., Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appel-lees.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   MARTIN, Chief Judge.

This is an appeal from a judgment of the Jefferson Circuit Court upholding an award of the Workmen’s Compensation Board to Stanley Eugene Johnson for permanent partial disability of 15%.

It is the primary position of the appellants that because the claimant’s injury is not of appreciable proportions, and because he has returned to his regular employment, he is not entitled to any benefits for permanent partial disability.

On February 26, 1975, the date of the injury, the claimant was employed by the appellant, Dane Sheet Metal, Inc., in Louisville. Johnson, who is right-handed, testified that on that date he cut his left index finger while operating a fabricating machine for his employer.

Johnson was treated for the cut by Dr. E. Atasoy at Jewish Hospital. He remained in the hospital for four days, but had no subsequent surgery. He returned to work on the Monday following his injury on Wednesday. His hand was in a cast for three weeks, and during this time he was provided light work by his employer. Shortly after the cast was removed, Johnson returned to his regular job and was still so employed at the time of the hearing before the Workmen’s Compensation Board. His only present complaints are diminished sensation in the index finger and inability to bend the finger sufficiently to make a fist.

Dr. Atasoy, who was the treating physician, testified that the cut severed both flexor tendons and both nerves in the index finger, as well as an artery on the ulnar side of the finger. He stated that the tendons, nerves and the artery were repaired by surgery and that the hand was placed in a plaster splint and traction. Johnson’s improvement was substantial. Dr. Atasoy stated that sensation in the injured finger was diminished but not completely missing. He testified Johnson could differentiate between hot and cold. Dr. Atasoy placed no physical restrictions on him, and testified that he should be able to grasp things, and hold things with his index finger. He has an almost normal range of flexion of one hundred degrees. Dr. Atasoy ascribed a functional disability rating of eight and one-half percent to the body as a whole.

Johnson was also examined by Dr. W. McDaniel Ewing. Dr. Ewing’s diagnosis was “partial ankylosis (loss of motion) and deformity of the left index finger.” Dr. Ewing gave a functional rating of ten percent to the left hand, translated to five percent to the body as a whole.

Johnson returned to his regular employment shortly after removal of the cast from his left hand. There was testimony that he has performed his job satisfactorily since this injury. In its opinion the Board overlooked this fact by finding that “he returned to work at a different but lighter job.” The evidence established that the lighter work continued only for the few weeks that Johnson was wearing the cast.

In the case of Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), and more recently in Couliette v. International Harvester Co., Ky., 545 S.W.2d 939 (1976), the concept of “disability” was defined as an occupational disability or loss of earning capacity, as distinguished from purely functional impairment. Under these decisions when the employee returns to his regular employment, he is not entitled to recover permanent partial benefits unless his injury is of such “appreciable proportions” as to be indicative of future impairment of earning capacity as manifested by the nature of the injury, the age of the workman, and other relevant factors.

In Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972), the claimant suffered a fracture of his right wrist and was given a disability rating of ten percent to the body as a whole. In commenting upon the rationale of Osborne v. Johnson, supra, the court stated at page 733:

In Codell Construction Company v. Dixon, et al., Ky., 478 S.W.2d 703 (decided today), we commented on the significance of the phrase in the Osborne opinion “of appreciable proportions.” A consideration of the basic approach of Osborne illustrates that the phrase uses the adjective “appreciable” to mean substantial or of significant consequence. In the instant case, there is no probative evidence to support the necessarily implicit finding of the board that the claimant incurred a permanent injury of substantial proportions or a permanent injury of significant consequence.

The award of the Board for twenty percent permanent partial disability was overturned and the opinion further stated at pages 733 — 4:

The undisputed evidence is that claimant fractured his wrist and returned to regular employment on the day following his injury. His own testimony does not and could not undertake to make a prognosis concerning the effect of the injury on future impairment of earning capacity. The only medical evidence repeatedly established that he was physically able to pursue his regular work and that after injury he was physically able to perform all types of labor. Therefore, there was no evidence to support another necessarily implicit board finding that a probability of future impairment of earning capacity was present. Hence, we conclude that the board’s award was not supported by substantial evidence and was clearly erroneous.

In the present case the Board erred in not being aware that the claimant had returned to his regular employment. The Board’s opinion also takes the testimony of Dr. Ata-soy out of context. The opinion recites Dr. Atasoy’s testimony as follows: “No motion of the finger from the hand knuckles down and no sensation in the finger, both nerves.” However, as Dr. Atasoy later explained, the consequences of the claimant’s initial injury have improved substantially:

A. Well, he has good range of motion of the finger, it’s not perfect like a normal hand and it may, you know, I understand, he may have this kind of complaint. But he should be able to grab things, hold things with the index finger. He has almost a normal range of flexion, a hundred degrees.
Q31. Does he have the ability to differentiate between hot and cold with that finger?
A. Yes.

The severity of the initial injury was not the question before the Board. The issue was the residual impairment as a consequence of the injury. The residual impairment in this case is minimal.

For these reasons, the judgment of the Jefferson Circuit Court is reversed.

All concur.


author: PARK, Judge.

text:
    Milton CHAPMAN, Appellant, v. PAYNE AND HAGER, INC. and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    April 14, 1978.
    Robert L. Bertram, Jamestown, for appellant.
    Robert B. Hensley, Horse Cave, for appel-lees.

      Before PARK, VANCE and WINTERS-HEIMER, JJ.
   PARK, Judge.

The sole issue presented on this appeal concerns the obligation of the Workmen’s Compensation Board under KRS 342.270(5) to hold a claim for benefits in abeyance so long as the employee is receiving the maximum benefits allowable through voluntary payments of compensation by the employer and its carrier. This is a ease of first impression.

The appellant-employee, Milton Chapman, received a serious work-related injury on October 4, 1974, while employed by the appellee-employer, Payne and Hager, Inc. Chapman filed a timely claim for compensation benefits. On February 18, 1976, Payne and Hager filed a motion requesting the board to hold the claim in abeyance on the ground that voluntary payments of compensation were being made to Chapman in the maximum amount allowable under the Workmen’s Compensation Act. On March 1, the board overruled the motion to hold in abeyance without giving any explanation for its ruling. On March 9, Payne and Hager renewed its motion to hold the claim in abeyance. The second motion was overruled by the board without explanation on April 5. On October 4, 1976, the board rendered an opinion and award finding that Chapman had sustained an occupational disability of 100% for an indeterminate period of time as a result of the work-related injury on October 4,1974.

Payne and Hager appealed the board’s award to the Franklin Circuit Court. This appeal was based solely upon the following provisions of subsection (5) of KRS 342.270:

An application for adjustment of claim shall be held in abeyance by the board during any period voluntary payments of compensation are being made under any benefit section of this chapter to the maximum which the employe’s wages shall entitle him, unless it shall be shown that the prosecution of the employe’s claim would be prejudiced by delay, (emphasis added)

Payne and Hager has never argued before the board, the circuit court or this court that Chapman was not totally disabled at the time. However, Payne and Hager asserts that the record conclusively demonstrates that it has made voluntary payments of maximum benefits and that Chapman had not shown that his claim would be prejudiced by holding it in abeyance.

The circuit court agreed, holding that the statute was mandatory in the absence of a showing that prosecution of the claim would be prejudiced by delay. Finding that no showing whatsoever had been made of any such prejudice, the circuit court set aside the award and directed the board to hold the matter in abeyance pursuant to KRS 342.270(5). We agree that the record establishes that Chapman has received voluntary payments of the maximum benefits which would be payable under the compensation act. The statute provides in such cases that the claim shall be held in abeyance unless the prosecution of the employee’s claim will be prejudiced. The word “shall” is mandatory. KRS 446.010(29). In the absence of a showing of prejudice to the employee’s claim, the board had no discretion in the matter, and it was required to hold the claim in abeyance.

KRS 342.270(5) can serve a salutary purpose. Often the extent of occupational disability can be determined only by the passage of time. As the court stated in Mitsch v. Stauffer Chemical Co., Ky., 487 S.W.2d 938, 940 (1972):

The board’s determination of the extent of occupational disability, from evidence as to the extent of functional disability, often is no more than an educated guess. The board undertakes to decide what the probabilities are as to the workman’s future capability to engage in gainful employment.

KRS 342.270(5) is a partial solution to the problem. So long as the employee is receiving voluntary payments of maximum benefits, his claim can be held in abeyance until the board can make a realistic determination, rather than an educated guess, of the extent of occupational disability.

We agree with the circuit court that Chapman did not show that his claim would be prejudiced by delay. In response to the initial motion to hold in abeyance, Chapman responded that his attorney would be denied immediate payment of fee and that expenses had been incurred for physician’s deposition fees, travel expenses, and court reporter fees. In response to the second motion to hold in abeyance, Chapman filed an affidavit that the compensation checks from Payne and Hager were two to three weeks late on a few occasions. In addition, he suggested that the treating physicians at the University of Kentucky Medical Center tended to be transient and that their testimony might be lost if the case were held in abeyance. However, the deposition of his treating physician is a part of the record, and there is nothing in KRS 342.270(5) which prohibits taking the testimony of a witness about to leave the state. Standing alone, these facts, if true, would not constitute such prejudice to the employee as to avoid the mandatory application of KRS 342.270(5).

Chapman also suggests that Payne and Hager and its compensation carrier are acting in bad faith for the sole purpose of harassment and delay. In order to support this allegation, Chapman goes outside of the record made before the board. The circuit court properly refused to consider a letter allegedly from the compensation carrier’s claims supervisor indicating that, “We will make this guy work for every penny he gets.” Any such letter could properly be brought to the board’s attention following remand.

Two years elapsed between the injury and the board award, but that fact alone does not justify the board’s refusal to hold the claim in abeyance. The question should not be the precise amount of time that has elapsed since the injury, but rather whether the employee has achieved maximum recuperation. If the employee will not recover further from the effects of the injury, there probably can be no legitimate reason for holding the claim in abeyance. In the present case, we note, as did the circuit court, that the board gave no reason for its decision not to hold Chapman’s claim in abeyance.

Under the facts and circumstances of this case, we conclude that the circuit court was correct in its judgment remanding the case to the board with direction to hold Chapman’s claim in abeyance pursuant to KRS 342.270(5). This judgment would not foreclose the board from taking Chapman’s claim out of abeyance upon a motion making a proper showing that he would be prejudiced by further delay.

The judgment of the circuit court is affirmed.

All concur.


text:
    Margaret Jo ADAMS, Appellant, v. James E. ADAMS, Jr., Anna Adams, Administratrix of the Estate of James E. Adams, Sr., Thomas F. Adams, William F. Adams, and Edward H. Adams, Appellees.
    Court of Appeals of Kentucky.
    April 14, 1978.

      Eddie C. Lovelace, Lovelace & Carroll, Albany, for appellant.
    James A. Hicks, Albany, for appellees.
    Before HOWARD, PARK and WILHOIT, JJ.
   HOWARD, Judge.

This is an appeal from the Clinton Circuit Court concerning a dissolution of marriage proceeding consolidated with a fraudulent conveyance proceeding. Certain shares of stock owned, at one time, by defendant-ap-pellee, James E. Adams, Jr. (hereinafter referred to as James, Jr.) were held not to be marital property. A fraudulent conveyance action, instituted by plaintiff-appellant, Margaret Jo Adams (hereinafter referred to' as Margaret) concerning said stock was dismissed.

In February, 1974, a dissolution of marriage proceeding was filed by James, Jr. against Margaret. A short time prior thereto, James, Jr. had sold two hundred (200) shares of stock in Adams Camp, Inc., a family-owned subchapter S-type corporation, for a consideration of $29,170.00. The buyers were the defendants-appellees, James, Jr.’s father (now deceased) and three brothers; these four owned the remaining shares of the corporation.

In July, 1975 Margaret instituted suit, alleging that said stock constituted marital property and that the transfer was made for an inadequate consideration and with the intent to defraud her of her marital interest therein. This action was consolidated with the divorce proceeding.

The trial court determined that the shares of stock formerly owned by James, Jr. were not marital property. Margaret was awarded lump-sum maintenance in the amount of $15,000.00, and was also awarded the marital home and household furnishings together with the family automobile. She was to assume the payments on the outstanding mortgage, approximately $6,000.00. James, Jr. was to pay the costs of the two actions, including the sum of $2,000.00 to Margaret’s attorneys and the sum of $1,500.00 as the cost of appraising the corporate property. The fraudulent conveyance action concerning the stock transfer was dismissed.

We will first determine whether the stock was marital property and then, whether the trial court was correct in dismissing the fraudulent conveyance action.

KRS 403.190(1) provides for division of the marital property, after a consideration of certain relevant factors. Subsection (2) of that statute lists exceptions to what is considered marital property and reads, in part, as follows:

(a) Property acquired by gift, bequest, devise, or descent;
(b) Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

KRS 403.190(3) states that property acquired by either spouse after the marriage is presumed to be marital property, unless it can be shown that it was acquired by a method listed in above-mentioned subsection (2).

In Browning v. Browning, Ky.App., 551 S.W.2d 823, 825 (1977), the court defined “gift” as follows:

‘A “gift” in a common, ordinary, popular sense is a voluntary and gratuitous giving of something by one without compensation to another who takes it without valuable consideration.’ Bowman’s Admr’s v. Bowman’s Ex’r, 301 Ky. 694, 192 S.W.2d 955 (1946).

The question of whether property is considered marital or nonmarital is dependent on whether the property was a gift or was received as a result of consideration. To overcome the presumption that the property is marital, clear and convincing proof must be presented to show that the property was given as a gift. Browning, supra.

The camping business originally started as a sole proprietorship owned by James E. Adams, Sr. (hereinafter referred to as James, Sr.). James, Jr. was employed to operate the business, commencing prior to the marital relationship. Subsequent to the marriage, a partnership was formed between father and son. James, Jr. contributed no capital to the partnership, and continued to receive a salary. When the camping business was incorporated in 1969, James, Jr. was transferred two hundred forty (240) shares of stock in Adams Camp, Inc. The minutes show that the consideration for this stock was, in essence, the partnership share of James, Jr. in the partnership bank account and the conveyance by him to the corporation of the various pieces of equipment, boats and motors, marinas, etc., owned before by the partnership.

Thereafter, forty (40) shares of stock were transferred from James, Jr. to his three brothers without any compensation to him and at his father’s request. It is undisputed from this record that James, Sr. provided the capital, as needed, in the form of loans to the corporation. No notes evidenced this indebtedness, although the outstanding debt from the corporation did appear on James, Sr.’s federal inheritance tax return.

We have examined Browning, supra, and find that because of work done by the husband for a corporation in which his mother had a substantial interest, the husband’s 6.1% interest in the same corporation was held to be marital property and not a gift from the mother. Although at first glance this may seem similar to the instant case, we do perceive a difference. James, Jr. (and the other sons) were compensated on a salaried basis for the work which they performed for Adams Camp, Inc.; whereas, in Browning, supra, the work performed was the consideration for the interest in the corporation.

It is clear that James, Sr. provided the money for the purchase of stock in Adams Camp, Inc. There was never any payment by his sons for the stock and none was expected. It is also noteworthy that the loan amount mentioned in James, Sr.’s will as being due and owing by James, Jr. is the exact amount loaned by James, Sr. for the purchase of the marital home.

We feel that clear and convincing evidence was presented to show that the stock in question was a gift from James, Sr. to James, Jr., as was the partnership interest also. The trial court was correct in holding that the stock was nonmarital property.

As the trial court properly held that the stock was nonmarital property, the question of whether there was a fraudulent conveyance by James, Jr. of the stock is rendered moot. The trial court further found that the sum of $29,170.00 paid James, Jr. for the stock was an adequate price, which finding is supported by sufficient evidence of probative value. CR 52.01.

We note that James, Jr. purported to file a cross-appeal questioning the property settlement agreement and maintenance award, although same has not been briefed. Margaret does not question these portions of the trial court’s findings. We feel that the findings by the trial court as to the division of marital property and the maintenance award are supported by sufficient evidence. CR 52.01.

The judgment of the trial court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    James F. THOMPSON, Appellant, v. James R. WALKER, Appellee Cross-Appellant.
    Court of Appeals of Kentucky.
    April 14, 1978.

      Norman R. Lemme, Pike, Lemme & Conway, Shepherdsville, for appellant.
    Joseph R. Huddleston, Huddleston Brothers, Bowling Green, for appellee/cross-appellant.
    Before HOWERTON, LESTER and WHITE, JJ.
   HOWERTON, Judge.

On September 2, 1972, James Thompson, while driving his truck on the Kentucky Turnpike (now Interstate 65), collided into the back of James Walker’s tractor trailer. Appellant’s testimony was that as he approached the Shepherdsville toll booth, he applied his brakes, but they failed to work. He then attempted to down shift, but this was unsuccessful; and before he had a chance to do anything else, he ran into the back of appellee’s truck.

Appellee brought suit against appellant for the recovery of damages because of permanent bodily injuries, physical and mental pain, diminution in earning power, lost wages and medical expenses. The jury found for the appellee and awarded him for medical expenses, lost earnings, and pain and suffering.

On appeal, appellant claims the trial court committed error by (1) not properly instructing the jury on sudden brake failure, (2) refusing to answer the jury’s questions about the instructions, (3) permitting the jury to take a deposition into the jury room, (4) permitting the appellee to introduce evidence in his closing argument that had not previously been admitted, (5) permitting evidence of road conditions eight months after the accident, and (6) permitting the jury to take erroneously admitted written evidence into the jury room.

We need only decide appellant’s first alleged error because we believe the trial court committed reversible error by failing to properly instruct the jury on the law of this case. The problem arose when, after the case had been submitted, the jury returned and asked the trial judge:

JUROR: Your Honor, we have come to a — I don’t know if it’s a problem on the law, but we have voted 9 to 3 that we don’t think that the plaintiff’s injuries, medical bills, and pain and suffering are caused from the collision. What do we do, as far as awarding him damages? Do we have to award him anything?
THE COURT: The law is fully stated in the instructions, and it will be your duty and responsibility to make your verdict from the law as it is given to you in the instructions. About all I can do is just suggest to you that you read them carefully, and study them, and do your best to follow them and reach a verdict.
JUROR: The way we read it and understand it, one contradicts the other.
THE COURT: Again, all I can say to you properly is that the instructions embody the law of the case, and it is your duty and your responsibility to do your best to read and try to understand the instructions and follow them. So I’ll ask you to return unless you have something more, please go back to the jury room and deliberate.

The instructions were:

INSTR. # 1: It was the duty of the defendant, James F. Thompson, on occasion concerning which you have heard evidence, to exercise ordinary care to operate his truck so as not to collide with other vehicles, including the duty to have his truck under reasonable control, to drive at a speed no greater than was necessary and prudent under the conditions proven, to have his vehicle equipped with service brakes adequate to stop his vehicle whether or not loaded to capacity, when traveling 20 mph within a distance of 30 feet, to have his vehicle equipped with a hand brake adequate to stop his vehicle, whether or not loaded to capacity, within a distance of 55 feet.
If you find from the evidence that the Defendant Thompson failed to comply with any one or more of these duties, and
that such failure was a substantial factor in causing the accident, you will find a verdict for the plaintiff, and award him reasonable compensation for medical expenses, not to exceed $1,148.75, loss of earnings not to exceed $37,000.00, and pain and suffering not to exceed $50,-000.00. Your total award not to exceed the sum of $88,148.75. Unless you find for the plaintiff under this instruction, you will find for the defendant and he guided by the further instructions of the court. (Emphasis added.)
INSTR. #2: If you believe from the evidence that the brakes on defendant’s truck suddenly failed; that the defendant exercised ordinary care to prevent such failure; that immediately after such failure the defendant acted as an ordinarily prudent person to prevent a collision with plaintiff’s truck, and that such failure was the sole cause of such collision, you will find for the defendant, Thompson.

One possible reason for the confusing results was that the last sentence of Instruction # 1 tells the jurors that they are to find the defendant negligent if he didn’t comply with the above duties, and only after finding him not negligent are the jurors to go to Instruction # 2, which is the sudden emergency excuse. This instruction is an incorrect statement of the law. Sudden brake failure is an excuse to negligence, not a defense. If the jury were to believe the appellant’s brakes failed through no fault on his part, then he would not have been negligent. Therefore, an instruction which states that the jury is only to consider the sudden brake failure question if they do not find the defendant negligent is incorrect. The jury should consider the brake failure when determining whether the defendant was negligent, not after the question of his negligence has been established.

A proper instruction should include the sudden emergency theory within the instruction on negligence. See Harris v. Thompson, Ky., 497 S.W.2d 422 (1973). The reason for including the sudden emergency instruction within the negligence instruction is that the sudden emergency theory is not a defense to negligence, but is a modification or qualification upon the standard of care the motorist is required to exercise but for the emergency.

Because a new trial is required, comment should be made upon the other alleged errors which might arise during the new trial.

Appellant contends the trial court erred by refusing to comment upon the instructions when the jury requested information about the law. KRS 29.304 permits the court to comment upon the law when the jury so requests. Appellant has not cited any authority which makes it mandatory upon the court to inform the jury. We do not believe it is mandatory that the trial court explain or enlarge upon the instruction if it believes that the instructions are clear and self-explanatory. However, in the instant case, the jury told the trial court that they didn’t think the plaintiff’s injuries were caused by the collision. They then asked what they were supposed to do about awarding damages. The trial court told the jurors that the instructions were complete, and he could not say anything more about them. The problem was that the instructions were not clear on this point. The instructions state that if the defendant’s negligence caused the accident, then the jury was to award the plaintiff for his injuries. It appears the jurors thought the defendant caused the accident, but may not have caused the injuries to the plaintiff. If the trial court had informed the jury that they could find the defendant had caused the accident, but not the injuries, as was done in Lee v. Henderson, Ky., 331 S.W.2d 884 (1960), some of the confusion might have been eliminated.

Next, appellant argues the trial court committed error by permitting the jury to take a deposition into the jury room. We agree that it is error for the trial court to allow a deposition to be taken into the jury room. See Louisville H. and St L. R. R. v. Morgan, 110 Ky. 740, 62 S.W. 736 (1901), and Williams v. Watson, 207 Ky. 256, 268 S.W. 1067 (1925). However, the error is not reversible unless the appellant can show that it prejudiced his right to a fair trial. Because we have reversed on the instructions, we need not determine whether such prejudice occurred. We suggest that at the new trial, the deposition not be given to the jury to be taken back to the jury room. If the jury wishes to be informed about the testimony in the deposition, the trial court should have the necessary parts of the deposition read to the jury in the courtroom before the parties.

The fourth alleged error complained of by appellant, was appellee’s statement in his closing argument that Dr. Peterson had reported that appellee was unable to work. Appellant argues that this statement was improperly admitted because Dr. Peterson never testified. Dr. Peterson’s report did .come into evidence indirectly through the testimony of Mr. Huie, who was Director of Loss Prevention for appellee’s employer. It was not error for the trial court to allow the appellee to refer to the report in his closing argument because the report had been admitted into evidence, and appellant has not alleged that the report’s admission was error.

Next, appellant complains that the trial court erred when it admitted evidence as to road conditions eight months after the accident. All that need be said is that testimony by a state policeman and the appellant affirm the testimony about the road conditions. Therefore, we believe the evidence was competent to prove the conditions at the time of the accident.

Finally, appellant argues that the trial court erred by allowing the jury to take with them into the jury room cards issued by the Interstate Commerce Commission showing that the appellee was physically qualified to drive. Apparently these cards contained some general information about appellee’s physical condition before the accident, which was supported, at least to some extent, by medical testimony. Unfortunately, these cards are not contained in the appellate record for our examination of their specific contents. If the proper oral testimony were offered in support of these cards, and if they were relevant to an issue in the case, then it would not be improper to allow the cards to be introduced as exhibits. The trial court has a great deal of discretion regarding introduction of evidence, and on the basis of the record before us, we are unable to say that he erred in this respect, nor can we say that it was error to permit these cards to be taken into the jury room during deliberations.

On cross-appeal, appellee claims the trial court erred by (1) excluding evidence about lost wages, and (2) refusing to instruct the jury about impairment to future earning power.

The trial court excluded evidence about what a co-employee of appellee had made during the period when appellee was not able to work full-time. We believe the trial court was correct in excluding this testimony as too speculative. Although the co-employee shared the same seniority position as the appellee, there was no assurance that the amount of work for both employees would have been the same. The trial court relied on the past wages of the appel-lee, taking inflation into account, as the best guide to lost wages.

Secondly, the trial court declined to give appellee’s tendered instructions on his impaired future earning power. Evidence was introduced by Dr. Ritter that appellee had suffered permanent injury which would affect his ability to work. Although the testimony was mixed as to appellee’s ability to work due to the injury, the jury could have found for the appellee from the evidence. Therefore, an instruction on impairment to future ability to work should have been given.

The judgment of the trial court is reversed.

All concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    HEREFORD CONCRETE PRODUCTS, INC., Respondent, v. AEROBIC SERVICES, INC., Appellant.
    No. 38207.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 4, 1978.
    Leroy Crouther, Jr., Thad F. Niemira, St. Louis, for appellant.
    Panned, Dodson & Robinson, Robert J. Robinson, Festus, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Pursuant to jury verdict the trial court entered judgment in favor of plaintiff in its action on account and defendant has appealed.

Other than a contention that the jury verdict “was against the overwhelming weight of the evidence,” an issue not reviewable on this appeal, Parks v. Midland Ford Tractor Company, 416 S.W.2d 22, 26 (Mo.App.1967), appellant’s points are directed solely to the correctness of two instructions. Therefore, a brief statement of the facts will suffice.

In 1970 respondent and appellant entered into an oral agreement whereby respondent was to manufacture concrete septic tanks according to plans and specifications furnished by appellant. Because of certain disagreements, not here material, the arrangement was terminated in August 1973. Respondent brought this suit seeking to recover the sum of $11,471.00, alleged to be the amount owed for the production of tanks during July 1973.

Appellant challenges Instruction No. 2, the verdict directing instruction given at the request of respondent, which followed without modification MAI 26.03 entitled “Verdict Directing — Action on Account.” In its point appellant asserts the instruction is erroneous because (a) it “did not state the necessary contract element, that plaintiff had performed or stood ready to perform all of the matters to be performed by it;” (b) it did not require a finding “that plaintiff’s charge had not been paid and that as a result thereof, plaintiff had been damaged;” and (c) it “is not supported by the evidence” and it applies “only where [the] contract terms are not in dispute and not * * * where the evidence established numerous disputes as to the nature of each party’s performance and the quality thereof.”

Appellant made no specific objection at trial to Instruction No. 2. In the motion for new trial the only reference to it was in relation to an assignment of error concerning Instruction No. 5, the measure of damages instruction. It was there asserted that Instruction No. 5 was “inconsistent with plaintiff’s verdict directing instruction, that being Instruction No. 2 * * It is readily apparent that appellant’s motion for new trial did not challenge Instruction No. 2 for any of the reasons advanced on this appeal.

In order to preserve for appellate review an allegation of error relating to an instruction, when no specific objection was made at trial, the specific objection must be presented in a motion for new trial. Rules 70.02 and 78.07. This requirement is designed to afford the trial judge an opportunity to correct errors without the delay and expense of an appeal, and it is to be strictly enforced. Safe-Buy Real Estate Agency, Inc. v. Hemphill, 498 S.W.2d 599, 601 (Mo.App.1973). Therefore, “No designations of error shall be examined in any civil matter from a jury tried case except such as have been presented to or expressly decided by the trial court.” Belter v. Crouch Bros. Inc., 554 S.W.2d 562, 563 (Mo.App.1977), citing Rule 84.13(a) and Commercial Credit Equipment Corp. v. Colley, 542 S.W.2d 329 (Mo.App.1976).

The assertions of error as to Instruction No. 2 were never presented to the trial court, and for that reason are not preserved for appellate review.

Appellant also challenges Instruction No. 5, which followed the wording of MAI 4.04 with an immaterial modification, and was as follows:

“If you find the issues in favor of plaintiff on plaintiff’s claim for damages, then you must award plaintiff the reasonable value of the goods furnished with interest from August 31, 1973.”

Appellant asserts this instruction was erroneous because (a) it is inconsistent with the verdict directing instruction “which pertained to the terms of a breach of contract with agreed upon prices per unit,” and this instruction “speaks in terms of reasonable value and allowed the jury a roving commission to determine damages; ” (b) plaintiff did not prove “by expert testimony” the reasonable value of the product sold; and (c) in a “bilateral contract situation, with disputed matters, the proper instruction to use would have been MAI 4.01, the general damage instruction.”

Plaintiff’s petition alleges an action on account, and the verdict directing instruction followed without modification the approved MAI instruction to be used in an action on account. There is no particular damages instruction in MAI for use in an action on account.

We find no inconsistency between Instruction No. 2 [MAI 26.03] and Instruction No. 5 for the reasons asserted by appellant in (a) above. Instruction No. 2 submitted that “at defendant’s request plaintiff furnished to defendant certain concrete products” and that plaintiff charged a total. of $11,471.00 for such goods,” and that “plaintiff’s charges were reasonable.” Instruction No. 5 submitted that if the jury found for plaintiff it should award to plaintiff as damages “the reasonable value of the goods.” Appellant argues that plaintiff’s “pleadings and evidence” pertained to a breach of a contract with agreed prices per unit, and Instruction No. 5 “speaks in terms of reasonable value.” But, as noted, the verdict directing instruction referred to charges of $11,471.00 for the goods furnished and the jury was required to believe that those “charges were reasonable.” No inconsistency exists between the two instructions.

We also find no merit to the contention that the instruction is erroneous because it constituted “a roving commission to determine damages.” Such conclusionary statement does not present an issue for determination. In following the approved language of MAI the instruction presented the issue of damages in the concise, simple and easily understood language in accord with the objective of MAI.

As to appellant’s contention in part (b) above that plaintiff did not prove by expert testimony the reasonable value of the product sold, we note, first the permissible proof of reasonable value is not limited to expert testimony; second, there was no contention that there was no proof that “plaintiff’s charges were reasonable” as submitted in Instruction No. 2, and third, in the motion for new trial, in reference to Instruction No. 5 there is no assignment of error that there was no proof of the reasonable value of the goods sold. The contention is not preserved for appellate review.

In part (c) appellant asserts, but does not state why, MAI 4.01 was the proper instruction. He asserts that this is a “bilateral contract situation,” but as previously noted, it was submitted as an action on account. The difference in submission is recognized in MAI where MAI 26.02 is the form to use for “Breach of Bilateral Contract — Breach Sole Issue,” and MAI 26.03 is the form to use for an “Action on Account.” Appellant cites North County School District v. Fidelity & Deposit Company, 539 S.W.2d 469 (Mo.App.1976) as authorizing the use of MAI 4.01 in “contract actions.” In that case the verdict directing instruction was in the form of MAI 26.02, and the use of MAI 4.01 was held not improper. The case does not hold that MAI 4.04 is improper when the case is submitted as an action on account.

When Instructions No. 2 and No. 5 are read together we find that they are not inconsistent and that they fairly instruct the jury on the issues, and that they do not permit the jury to arrive at its verdict through speculation and conjecture.

The judgment is affirmed.

DOWD, P. J., and SNYDER, J., concur.

      . Appellant does not urge in its brief that the allegation of error contained in the point be considered pursuant to the plain error doctrine as set forth in Rule 27.20(c), and we do not find that plain error exists; in fact, we consider the instruction not subject to attack for any of the reasons advanced.


author: GUNN, Presiding Judge.

text:
    Lester J. JACKSON et al., Plaintiffs-Respondents, v. ST. REGIS APARTMENTS, INC., Defendant-Appellant.
    No. 38444.
    Missouri Court of Appeals, St. Louis District, Division 3.
    April 4, 1978.

      Greenfield, Davidson, Mandelstamm & Vorhees, Robert M. Hamlett, Lawrence N. Doreson, St. Louis, for defendant-appellant.
    Ira M. Young, St. Louis, for plaintiffs-respondents.
   GUNN, Presiding Judge.

This appeal involves a class action brought by shareholders of a corporation alleging oppression by majority shareholders of the corporation.

Plaintiffs-respondents, as alleged minority shareholders in St. Regis Apartments, Inc., brought a class action against St. Reg-is alleging oppression by the majority of shareholders. The trial court held that the majority shareholders were guilty of oppression in breach of their fiduciary duties to the minority shareholders by maintaining a system of unequal service charges for equal services. Appellant, as an individual shareholder and as representative for at least three other shareholders, was granted leave to intervene as defendant-appellant to prosecute this appeal after St. Regis Apartments, Inc., the original appellant, was granted leave to withdraw as a party to the proceeding.

The trial court found “that the action of defendant [St. Regis], as carried out by its board of directors and maintained by its majority shareholders in charging unequal service fees for equal services to the shareholder-occupants of the St. Regis Apartments, Inc., is oppressive . . . [and] constitutes a breach of the fiduciary duty owed to the minority shareholder-occupants.” St. Regis was thereby enjoined from imposing upon the shareholder-occupants unequal service fees for equal services. For the reasons which follow, we reverse the judgment.

Prior to 1951, the St. Regis Apartments were privately owned rental property in the City of St. Louis. In that year, the tenants joined together to form a Missouri Corporation, St. Regis Apartments, Inc., for the purpose of purchasing the apartment building and operating it as a cooperative apartment. Forty-seven shares, coinciding with specific apartment units in the building, were authorized and issued. A single share of stock was sold to each tenant for $5,319.15, which gave the tenant the right to lease his apartment from the St. Regis Corporation. Subsequent sales of St. Regis stock have been private transactions between the individual shareholder and prospective purchaser with the value of the shares varying considerably depending on the condition of the apartment and sales skills of the seller.

Although the individual shares of St. Regis stock were originally sold for a uniform amount, the rents have never been uniform among the tenants. At the time of incorporation the shareholders agreed to retain the rental structure then in existence which varied by as much as 30-35% between the most and least expensive apartments. In later years the tenants’ monthly payment was referred to as a service fee rather than rent, and the shareholders signed an occupancy agreement rather than a lease. According to the occupancy agreement, which all shareholder tenants were required to sign, the funds received from the collection of service fees were to be used to provide common services to all tenants, i. e., garbage service, water, heat, light and maintenance for common areas, insurance, property taxes, and other items. The by-laws restated the agreement that the rent to be paid for each apartment would be the same amount being paid on the effective date of the by-laws and provided that there could be no increase in rents without an affirmative vote of the holders of 32 shares of St. Regis stock.

The non-uniform rental or service charges have continued to the present with the only change having been made in 1972 when the by-laws were amended to provide for an equal dollar amount increase rather than a percentage increase when rental increases were approved. At the time of the trial the range of rents paid was as follows:

3 “ - 272.82

15 “ - 281.53

2 “ - 290.97

5 “ - 309.15

1 “ - 328.02

5 “ - 336.73

Plaintiffs, who are present shareholders, filed this suit in equity alleging that the system of unequal service fees maintained by St. Regis is illegal and constitutes oppression by the majority of the shareholders. The suit was maintained as a class action and sought injunctive relief to prohibit further imposition of unequal charges for similar services.

Three shareholders testified for plaintiff. Each stated that when he negotiated for the purchase of his share from the previous owner he was informed of the amount of service fee for the apartment but not of the variance in fees between the different apartments. Each acknowledged that the fee paid was reasonable and fair. Moreover, each admitted on cross-examination that neither the seller nor the corporation ever represented that the fees were equal. Each witness merely assumed that the fees charged were equal because of the cooperative nature of the corporation.

When one of the plaintiffs learned that the fees were not equal, she sought an explanation from the directors who told her that the fee structure had been unequal since the corporation was formed. At the plaintiff’s behest, a special meeting of the shareholders was called for the purpose of considering her plan for equalization of fees. The plan was defeated by a simple majority, and this suit followed.

After hearing the foregoing evidence the trial court found that the services rendered by St. Regis were equal as to each apartment unit and that there was no evidence to explain or justify the variance in service fees. The court found that the service fee structure was inequitable and arbitrary. It further found that the action of the St. Regis Board of Directors and the majority of the shareholders in maintaining the service fee structure was a breach of their fiduciary duties toward the minority shareholders and constituted illegal oppression. Those 34 shareholders who paid the lowest service fees were regarded as the majority while those 13 shareholders who paid the highest fees were regarded as the minority. The trial court then concluded that as a matter of law the majority had the burden to prove good faith and the inherent fairness of any transaction with the corporation and that they had failed to meet their burden. By way of relief the trial court enjoined St. Regis from imposing a service fee structure which established unequal fees for equal services and ordered it to institute a system of equal fees for the same or similar services.

As a preliminary matter, we must rule on a motion by a resident of St. Regis Apartments to dismiss the case for mootness. While this appeal was pending, Henry C. Lowenhaupt filed a motion to dismiss the appeal alleging that the by-laws of St. Reg-is had been amended to establish service fee charges different from those previously in effect, as well as from those ordered by the trial court. Movant further stated that all other parties to the suit acquiesced in the by-law revision thereby ending all controversy. For these reasons movant argues that the appeal has been rendered moot.

A cause should be dismissed as moot when the question presented for a decision seeks a judgment which if rendered would have no practical effect on any existing controversy. State ex rel. Seidl v. Jefferson Cty. Bd. of Ed., 548 S.W.2d 853 (Mo.App.1977); Western Auto Supply Co. v. Banner, 288 S.W.2d 402 (Mo.App.1956). In this instance there clearly exists a continuing controversy which may be resolved by a decision of this court. Although movant in his unverified motion provides us with no specific information as to the terms of the new by-law or proof that it was duly approved, he does admit that it is not in conformance with the valid order of the court below. Moreover, it is manifest by intervenor’s prosecution of this appeal that all parties do not accept the new by-law provision but seek to retain the original system of unequal fees. Because there remains a continuing controversy as to the appropriate fee structure, the appeal is not moot. The motion to dismiss is overruled.

The trial court in its conclusions of law found that the majority shareholders had the burden to prove the inherent fairness of the service fee structure and held that they failed to meet their burden. We will assume arguendo that the trial court’s determination as to the membership of the class of majority shareholders was correct, i. e., those 34 shareholders paying the lowest rents. It is true that the majority of controlling shareholders in voting on extraordinary corporate matters have a fiduciary duty to refrain from abusing their control so as to give themselves a profit at the expense of the minority. Fix v. Fix Material Co., Inc., 538 S.W.2d 351 (Mo.App.1976); Henn, Law of Corporations § 240 (1970). It does not follow, however, that because majority shareholders under certain circumstances may assume the status of technical fiduciaries that plaintiffs by filing a suit for oppression are relieved of the burden of proving their case. See Jarvis v. Boatmen’s Nat’l Bank of St. Louis, 478 S.W.2d 266 (Mo.1972); Kirtz v. Grossman, 463 S.W.2d 541 (Mo.App.1971). This court in Fix v. Fix Material Co., Inc., supra, held that in a suit under § 351.485 RSMo.1969 alleging oppression, the complaining shareholder has the burden of proving equitable grounds for relief. We believe that the same rule should be followed in non-statutory suits alleging oppression by the majority shareholders.

Under plaintiffs’ evidence, there was no showing of unfair dealing between the directors or majority of the shareholders and the corporation. If there had been proof of the existence of such personal transactions with the corporation, the directors or majority shareholders involved would have incurred the burden of proving that they had gained no unconscionable or secret profits as a result and that they had dealt with the corporation fairly, honestly and in good faith. Simpson v. Spellman, 522 S.W.2d 615 (Mo.App.1975). Before the burden shifts from the complaining shareholders, however, they must prove the existence of a transaction between the corporation and the director. Ramacciotti v. Joe Simpkins, Inc., 427 S.W.2d 425 (Mo.1968); Yax v. DIT-MCO, Inc., 366 S.W.2d 363 (Mo.1963). Under the facts of this case there were no such transactions. The agreement to pay a specified rent or service fee for a given apartment was a non-negotiable incident of owning a share of St. Regis stock. It was not a transaction entered into after the individual became a shareholder or director but was a prerequisite to becoming a shareholder. The complaining shareholders, having shown no transaction between the directors or majority shareholders after they became a part of the corporation, retain the burden of proving that the actions of the defendants amounted to oppression.

We believe that plaintiffs have failed to meet their burden of proof and hold as a matter of law that under the evidence in this case there has been no showing of oppression by any controlling group of shareholders. Plaintiffs do not point to any affirmative action undertaken by the majority which is oppressive. Their sole complaint is that the majority of the shareholders in the exercise of their judgment have refused to amend the rental or service charge structure which has been in effect since the corporation was formed. We do not find such refusal to be oppressive.

There is no clearly identifiable standard by which to judge when a vote of the majority amounts to oppression. Shares of stock are private property and generally may be voted in any manner the owner sees fit. Moreover, conduct by the majority shareholders to be oppressive need not be illegal or fraudulent. The existence of oppression must be determined on a case by case basis taking into account the specific facts of each ease. In general, however, the term oppression suggests harsh, dishonest or wrongful conduct and a visible departure from the standards of fairdealing which inure to the benefit of majority and to the detriment of the minority. Fix v. Fix Material Co., Inc., supra.

It is an undisputed fact that shareholder-tenants living in the St. Regis Apartments are assessed unequal service fees for the same or similar services. But in this case all of the original shareholders knowingly promulgated the unequal service fee when the corporation was formed. It was not suddenly thrust upon the unsuspecting minority by a vengeful majority group seeking to reap the corporate benefits as their own. The decision to adopt the staggered service fee was embodied in the original by-laws. In the judgment of the original shareholders, as demonstrated by their acceptance, the system of fees was deemed fair and equitable. We note that when the corporation was formed, certain apartments, because of their condition, were more valuable than others. Yet, each tenant paid an identical amount for his share. Thus, the discrepancy in the actual value of the apartment and the amount paid for the share was reflected by the higher rental fee for certain of the apartments.

Absent fraud, which has not here been alleged, it is not appropriate for this court to substitute its judgment as to the proper management of the corporation for that of the incorporators and their successors. Brown v. Citizens’ State Bank, 345 Mo. 480, 134 S.W.2d 116 (1939); Putnam v. Juvenile Shoe Corp., 307 Mo. 74, 269 S.W. 593 (banc 1925).

“[CJourts of equity will not, as a general rule, exercise jurisdiction to control or interfere in the management of the corporate or internal affairs of the corporation. The court has no power to interpose its authority for the purpose of adjusting controversies relative to the proper mode of conducting the corporate business. Errors of judgment on the part of the officers are not grounds for the interference of equity. For the court to intervene there must be actual or threatened acts which are ultra vires, fraudulent, and injurious, and are an abusive [sic] power, and are acts of oppression on the part of the Corporation of its officers.”

Golden v. St. Joseph Milk Producers’ Association, 420 S.W.2d 31, 33 (Mo.App.1967).

Under § 351.290 RSMo. (Supp.1975), the by-laws of a corporation may contain any provision for the regulation and management of the corporation which is not inconsistent with the law or the articles of incorporation. “By-laws are the rules of law adopted by the corporation for the regulation of its own acts and concerns and of the rights and duties of its members among themselves, (cites omitted) When by-laws have been duly adopted they are obligatory upon all the members of the corporation.” Smoot v. Bankers’ Life Ass’n, 138 Mo.App. 438, 120 S.W. 719, 728 (1909). In this case, the mere existence of unequal service fees violates no provision of the articles of incorporation or of the law. The refusal of the shareholders to amend the by-laws to implement a system of equal fees does not constitute oppression, particularly where, as here, the arrangement for rental fees was acquiesced in by the incorporators of St. Reg-is.

The judgment of the trial court is reversed.

WEIER and KELLY, JJ., concur.

      . A forty-eighth share for designated use as a manager’s apartment was authorized but not issued.

      . Although there was no direct explanation for the disparity in service charges (rent) for the various apartments, the exhibits received at trial show a clear- pattern. The St. Regis Apartment buildings are divided into three courts with apartments on the east and west side of each court. The service charges are greater for the apartments on the upper floors and those located on the outer wall of the east and west courts.

      . The shareholders were given notice of the suit and an opportunity to participate. Seven of the 47 shareholders joined with plaintiffs, and the remaining 40 joined with defendant St. Regis.

      . We have reviewed the authorities cited by plaintiffs-respondents and find them infelicitous as to the factual situation on issue before us. See, e. g., Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Southern Pac. Co. v. Bogert, 250 U.S. 483, 39 S.Ct. 533, 63 L.Ed. 1099 (1919); Perlman v. Feldmann, 219 F.2d 173 (2nd Cir. 1955); Zahn v. Transamerica Corp., 162 F.2d 36 (3rd Cir. 1947).
      See also, Annot. 56 A.L.R.3d 358, “What amounts to ‘Oppressive’ Conduct Under Statute Authorizing Dissolution of Corporation at Suit of Minority Shareholders” (1974), for a thorough treatment on certain aspects of oppression by majority shareholders.


author: STEPHAN, Judge.

text:
    Adele MITCHELL, Plaintiff-Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY, Defendant-Respondent.
    No. 38734.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 4, 1978.
    William R. Hirsch, Clayton, for plaintiff-appellant.
    Jerome M. McLaughlin, St. Louis, for defendant-respondent.
   STEPHAN, Judge.

This is an appeal from an order of the circuit court granting defendant’s motion to dismiss a pleading denominated “Claim for Relief of Plaintiff” and dismissing plaintiff’s cause of action in toto. This matter arose from a suit in equity to reform an insurance policy so as to show plaintiff as an insured mortgagee together with the Kimberly Investment Corporation. The policy provided fire coverage in the amount of $26,000 on a four family dwelling which burned. The defendant insurance company filed a third party petition alleging that it had issued the policy in question insuring Thomas and Sandra Venezia as owners and Kimberly Investment as mortgagee, naming the Venezias and Kimberly as third party defendants and accusing them of fraud and misrepresentation in the procurement of the policy. The insurance company also filed an answer and counterclaim alleging with some particularity the nature of the misrepresentations, claiming it would not have issued the policy had it known the truth, and seeking declaratory relief to the effect that it was liable to no one on the policy because of fraud in the procurement. The counterclaim was not disposed of below. The order appealed from is therefore not final, and the appeal must be dismissed as premature.

This case is inextricably entwined with one filed on the same day, in the same court, by the same plaintiff against the same defendant, occasioned by the same conflagration. Because the instant case sought reformation of the policy, it was assigned to one of the “equity” divisions of the Circuit Court of the City of St. Louis, in accordance with local custom. In the other action, plaintiff claimed she was the assign-ee of Kimberly Investment in the amount of $21,645.19, and prayed for judgment in that amount, plus interest, together with a ten percent penalty and attorney’s fees for vexatious delay. Because it was an action for damages on the insurance policy, the case was sent to Division 1, a “law” division of the court. As in the instant case, defendant insurance company filed a third party petition against the Venezias and Kimberly Investment, alleging that it was liable to no one but that the named third party defendants were indispensable parties.

The reformation case was heard without a jury. Thereafter, the trial court entered an order stating that both the petition for reformation and defendant’s counterclaim were “denied”. However, defendant filed a motion for new trial which the court “sustained on the ground that the judgment is against the weight of the evidence.”

Some months later, the defendant insurance company filed a motion to dismiss the action at law on the grounds, inter alia, that the judgment against plaintiff in the reformation suit had not been appealed, was final and res judicata as to that case. The motion was sustained and the petition “ . . . dismissed without prejudice and with leave to re-file this cause upon termination of the Defendant’s Counterclaim for Declaratory Judgment in Cause Number 26586F against this Plaintiff now pending in Division Two (2) of this Court.” On the same day defendant filed its motion to dismiss the action at law, it filed a “motion for judgment” on its counterclaim for a declaratory judgment in the reformation case, in effect submitting it on the evidence previously adduced. Although the motion was denied, the new trial never took place thus leaving the counterclaim unresolved.

Shortly after the granting of the motion to dismiss the action at law, plaintiff filed in the equity division her “Claim for Relief”, which, but for the addition of an allegation that plaintiff has been caused to hire counsel, is an exact duplicate of the petition dismissed without prejudice in the law division. In response to the “Claim for Relief”, the defendant insurance company filed a motion to dismiss, asserting that the same claim had been dismissed in the law division, that the ruling of the equity division denying plaintiff’s petition was then final and was an absolute bar to the claim she was then asserting. The motion was granted. Plaintiff appeals.

We must first determine whether we have a final, appealable judgment disposing of all parties and issues. The court must do this sua sponte, even if the issue is not raised by the parties, for the requirement of finality is jurisdictional. Citizens Insurance Company of New Jersey v. Kansas City Commercial Cartage, Inc., 543 S.W.2d 532, 534[1] (Mo.App.1976); Baumstark v. Jordan, 540 S.W.2d 611, 612 (Mo.App.1976).

The denial of defendant’s motion for judgment on its counterclaim for declaratory relief, after the new trial had been granted, did not have the effect of a judgment for plaintiff on the counterclaim. The motion for judgment, asking that the court rule on the basis of the previously presented evidence, served the function of a motion for summary judgment, the denial of which is merely interlocutory, neither final nor appealable. Wilson v. Hungate, 434 S.W.2d 580, 588 (Mo.1968); Barnes v. York, 526 S.W.2d 404, 407 (Mo.App.1975). It cannot be said that the denial of defendant’s motion for judgment disposed of the counterclaim which raised serious issues bearing on whether the policy of insurance was binding on the defendant. Plaintiff’s claim, if it has survived its bifurcation, the interests of the admittedly named insureds, who have been made third party defendants,' and the counterclaim are “mutually exclusive”, Baumstark v. Jordan, supra, 612, and none can be considered by this court until all are finally resolved by the trial court.

Appeal dismissed.

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

      . It was apparently plaintiffs intention that this document serve as an amended petition.

      . The third party defendants apparently did not participate.

      . Lacking jurisdiction, we do not rule the issues of whether the equity court properly dismissed the “claim for relief” and whether the determination of the equity court that plaintiff was not entitled to reformation is res judicata as to the action at law for damages.


author: CLEMENS, Presiding Judge.

text:
    Lawrence Eugene LANE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39049.
    Missouri Court of Appeals, St. Louis District, Division 1.
    April 11, 1978.

      J. Martin Hadican, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Carson El-liff, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Evelyn M. Baker, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant-Appellant’s (defendant hereafter) Rule 27.26 motion was denied after a hearing, and he has appealed. Defendant alleges he was denied due process and that the trial court lacked jurisdiction because the underlying indictment charged a different offense from an earlier one based on the same circumstances.

On February 24, 1974 defendant was indicted in Cause No. 74-517 and charged with attempted robbery first degree by means of a dangerous and deadly weapon (Sec. 556.150, RSMo. 1969) and assault with intent to kill with malice (Sec. 560.-135). On March 25 the state filed a substitute information in lieu of the indictment charging the same offenses and adding the allegation that defendant had a prior felony conviction. On November 11 defendant was indicted in Cause No. 74-2674 and charged with one prior felony and assault with intent to rob with malice, Sec. 559.180. Defendant proceeded to trial and was convicted as charged in the second indictment. Affirmed on direct appeal. State v. Lane, 537 S.W.2d 569 (Mo.App.1976). Thereafter, defendant filed his Rule 27.26 motion; as amended, it alleged ineffective assistance of counsel, denial of due process and equal protection. He now asserts only denial of due process.

To support this claim that he was denied due process, he contends the second indictment, Cause No. 74-2674, charged an offense different from an earlier indictment, Cause No. 74-517, citing State v. Thompson, 392 S.W.2d 617 (Mo.1965), Rule 24.02 and Sec. 545.300. In Thompson the defendant was originally charged by information with only one offense, attempted robbery. Language in the indictment, “did . . make an assault in and upon,” was considered superfluous to the attempted robbery charge. An amended information charged defendant with assault with malice with intent to rob. Since the assault became the “dominant charge,” the court found the amended information charged a different offense. Further, the original information was based on Chapter 560, “Offenses Against Property,” while the amended information was rooted in Chapter 559, “Offenses Against Persons.” Thompson is distinguishable from the present case both factually and legally.

Here, defendant was first charged with two offenses, attempted robbery and assault with intent to kill with malice. .The statutory authority for these offenses differs, Thereafter, a substitute information in lieu of indictment charged these identical offenses and added the charge of one prior felony conviction. A second indictment charged defendant with assault with intent to rob with malice and one prior felony conviction. The statutory basis for the assault with intent to rob charge was identical with the statutory authority charging assault with intent to kill in the first indictment. The fact that the “intent” was altered from an intent to kill to an intent to rob does not change the offense. The court in State v. Richardson, 460 S.W.2d 537[1] (Mo.1970) so held in quoting State v. Chinault, 55 Kan. 326, 40 P. 662:

“Both informations [assault with intent to kill and assault with intent to rob] charge offenses under the same section of the statutes, . . . . Both informa-tions refer to the same acts, the only difference being that a different criminal purpose is attributed to the defendant. We think under this section the substantive offense is the assault. The intent with which it was committed characterizes it, and determines its degree of criminality. . . . ” (Emphasis added.)

See also State v. Buckhanan, 416 S.W.2d 166[2] (Mo.1967) and State v. Brown, 245 S.W.2d 866[5] (Mo.1952).

Defendant’s reliance on Rule 24.02 and Sec. 545.300 is misplaced. Both rule and statute deal with amendments to informa-tions or the substitution of an information for an indictment. Defendant does not challenge the substitute information, but he misinterprets the language in Thompson when he argues that rules and statutes pertaining to informations and indictments are interchangeable without qualification. The court in Thompson stated:

“Although § 545.110 refers specifically to indictments, proceedings by indictment and by information are for many purposes interchangeable . . . .” (Emphasis added.)

This statement by the court does not support defendant’s conclusion that every rule and every statute governing informations and indictments are interchangeable. Defendant uses the quoted material to argue that the rule and statute prevent the filing of a second indictment which charges a different offense. Since we have ruled the same offense was charged in both indictments in this case we need not address that argument.

Defendant also asserts that the filing of a second indictment deprived him of due process by preventing the preparation of his defense and thereby prejudiced his rights. The test of prejudice is whether a defense under the charge as originally made would be equally available after an amendment and whether defendant’s evidence would be equally applicable after as well as before the amendment. State v. Taylor, 375 S.W.2d 58[10] (Mo.1964); State v. Wilson, 544 S.W.2d 859[2] (Mo.App.1976). Defendant was charged with the same offense in both indictments and the facts upon which the charges were made remained the same. Defendant’s evidence therefore remained equally applicable to either indictment. Likewise, any defense available to defendant to controvert the charges made by the first indictment were equally available to him as to the second indictment. Defendant was not prejudiced or prevented from preparing a defense by the return of the second indictment.

Finally, defendant contends the trial court lacked jurisdiction to render a judgment based on the second indictment because the second indictment was invalid as a matter of law. He cites no authority for this proposition other than Thompson. An indictment is jurisdictional in the sense that if it fails to charge a crime the court acquires no jurisdiction. State v. Kerr, 531 S.W.2d 536[1] (Mo.App.1976). The challenged indictment apprised defendant of the particulars of the offense charged and sufficiently tracked the language of the statute in setting forth the offense. State v. Tandy, 401 S.W.2d 409[3] (Mo.1966). The court properly acquired jurisdiction.

The judgment is affirmed.

SMITH and McMILLIAN, JJ., concur.

      . All further statutory references are to the Revised Statutes of Missouri, 1969, unless otherwise noted.


author: BILLINGS, Chief Judge.

text:
    Charles C. SHIELDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10684.
    Missouri Court of Appeals, Springfield District.
    April 18, 1978.
    Charles R. Stamp, Jr., Sikeston, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   BILLINGS, Chief Judge.

Petition for writ of error coram nobis to vacate a 1955 sentence and judgment of the Circuit Court of Scott County. Following an evidentiary hearing, the court denied relief. We affirm.

Appellant was charged in 1955 as a habitual criminal [four prior felonies] for the crime of forgery. Trial resulted in conviction and no appeal was filed.

In 1960 appellant was released from custody under the forgery sentence. In 1964 he was convicted in the St. Louis Circuit Court of armed robbery. The forgery conviction and six other prior felony convictions were used to prosecute appellant under the Second Offender Act. The St. Louis judgment was affirmed in State v. Shields, 391 S.W.2d 909 (Mo.1965), cert. denied 382 U.S. 966, 86 S.Ct. 457, 15 L.Ed.2d 369 (1965). Appellant’s first Rule 27.26 motion attacking the robbery sentence and judgment was denied and that order was affirmed in State v. Shields, 441 S.W.2d 719 (Mo.1969). His second postconviction motion to vacate the St. Louis judgment was denied and the appeal which followed was affirmed in Shields v. State, 491 S.W.2d 6 (Mo.App.1973). Appellant’s third Rule 27.-26 motion was denied December 21, 1973, according to the footnote in Shields v. State, 553 S.W.2d 317 (Mo.App.1977). Appellant’s fourth postconviction motion was denied by the trial court and affirmed in the case just cited. This last motion sought to challenge the use of the Scott County conviction to trigger the appellant’s prosecution and conviction under the habitual criminal act in the St. Louis robbery case.

The legal principles governing the extraordinary writ of error coram nobis were reviewed at length by this court in Howard v. State, 493 S.W.2d 14 (Mo.App.1973), and more recently by the St. Louis District in Arnold v. State, 552 S.W.2d 286 (Mo.App.1977). Appellant’s petition and his evidence fell far short of those principles, and the evidence received at the evidentiary hearing refuted his claims of denial of assistance of counsel and denial of his right to appeal.

The trial court did not err in denying appellant’s petition for writ of error coram nobis and an opinion would not have prece-dential value.

Judgment affirmed pursuant to Rule 84.-16(b), V.A.M.R.

All concur.


author: PER CURIAM:

text:
    William P. WATSON and Zeffie L. Watson, Respondents, v. DIRECTOR, MISSOURI STATE DIVISION OF FAMILY SERVICES, Appellant.
    No. 10689.
    Missouri Court of Appeals, Springfield District.
    April 18, 1978.
    Joseph B. Phillips, Phillips & Phillips, Stockton, for respondents.
    Robert R. Northcutt, Chief Counsel, Paul T. Keller, Senior Counsel, Jefferson City, for appellant.
   PER CURIAM:

Representatives of the Cedar County Family Services Office determined that William and Zeffie Watson, husband and wife, were no longer eligible for public assistance under the Old Age Assistance program and the Watsons applied for a state hearing. The Director of the Missouri State Division of Family Services, following a hearing of sorts, ordered termination of William’s grant for state supplementation benefits and Zeffie’s vendor nursing home payments. Inter alia, the director’s decision was based on findings that since claimants were “married and actually living with husband or wife” they were ineligible for benefits because they jointly owned or possessed property exceeding $10,500 in value contrary to the provisions of § 208.010-2(4). William and Zeffie, per § 208.100 — 1, appealed to the Circuit Court of Cedar County. After pondering the probable meaning of the statutory phrase “actually living with husband or wife” (our emphasis) as contained in § 208.010-2(4), and after noting the dearth of evidence as to whether Zef-fie’s residence in the nursing home was permanent or indefinite (as opposed to temporary confinement), the circuit court found and ordered: “The Court therefore finds that a fair hearing and determination of applicants’ eligibility and rights under the Old Age Assistance Law has not been granted to applicants by the Director of the Missouri State Division of Family Services, and the proceedings are remanded for rede-termination of the issues by said Director.” The director has appealed to this court seeking, in summary, a judgment which would remand the cause to the circuit court with directions to affirm his decision.

William and Zeffie have joined the appellate affray without questioning our right to entertain the director’s appeal. Nonetheless, it is our duty to recognize the question ex mero motu. The right of appeal is purely statutory and, sans specific statutory authority therefor, we have no jurisdiction to entertain the matter if an appeal is not allowable. Powell v. Watson, 516 S.W.2d 51, 52[1, 2] (Mo.App.1974).

As seen, supra, the circuit court did not undertake a final adjudication of the cause. Rather, the court acknowledged the famine of evidence in the proffered record which made it impossible to determine whether the director’s decision was arbitrary and unreasonable vel non. In reviewing administrative decisions, a court may not weigh the evidence and determine the facts for itself. Lee v. State Department of Public Health & Welfare, 480 S.W.2d 305, 308[1] (Mo.App.1972). However, “if the court finds that there is competent and material evidence which, in the exercise of reasonable diligence, could not have been produced or was improperly excluded at the hearing before the agency, the court may remand the case to the agency with directions to reconsider the same in the light of such evidence.” Rule 100.07(d); § 536.-140-4. Also, again see § 208.100-5 quoted herein in Note 4.

“[2] The order of the circuit court remanding with direction[s] to consider . . . additional evidence does not constitute a final judgment. It requires the [director] to redetermine the entire controversy after considering . . . additional evidence. Such decision may then be reviewed by the circuit court and any aggrieved party may appeal. . . . [3] It seems quite evident that in the instant case the circuit court has entered neither a final judgment nor an order from which the statute [§ 512.020] has authorized an appeal. Appeals are not to be heard piecemeal. One appeal should suffice to determine all the controverted issues. The appeal here is not timely. It is premature. It is dismissed.” Hickman v. Division of Employment Security, 448 S.W.2d 270, 273-274 (Mo.App.1969). It is so ordered.

All concur.

      . William appeared pro se at the hearing. Zef-fie, then a patient in a nursing home, did not appear and was not represented at the hearing.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R.

      .Apparently under § 208.019-2(4), each married individual who is not actually living with husband or wife may separately own or possess property not exceeding $10,500 in value and still remain eligible for public assistance benefits.

      . Sec. 208.100-5 states: “Upon the record so certified by the director . the circuit court shall determine whether or not a fair hearing has been granted the applicant. If the court shall decide for any reason that a fair hearing and determination of the applicant’s eligibility and rights under this law was not granted the individual by said director, or that his decision was arbitrary and unreasonable, the court in such event shall remand the proceedings for redetermination of the issues by said director.”


text:
    William Kendall HAYNES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38553.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 18, 1978.

      Love, Lacks, McMahon & Schwarz, Jim Ashwell, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Defendant pleaded guilty to two counts of selling a Schedule I controlled substance. The trial court accepted his plea and imposed sentence of two concurrent ten-year prison terms. Defendant subsequently filed a Rule 27.26 motion to vacate the judgment. The trial court denied the motion without an evidentiary hearing and defendant has appealed.

The indictment charged defendant with separate sales of marijuana on April 3,1976 and May 13, 1976. At trial, defendant’s attorney announced defendant wished to change his plea to guilty. During the trial court’s examination of defendant as to the voluntariness of his plea, defendant denied any recollection of the offenses with which he was charged but the trial court, accepted the guilty plea and imposed sentence.

Defendant’s motion to vacate the judgment alleged the indictment was defective and his counsel ineffective. The trial court denied the motion without a hearing.

Defendant first alleges the trial court erred in ruling the indictment was not defective. He contends it was invalid because it failed to charge him with sale of marijuana to a person. The point is frivolous. The existence of a buyer is inherent in the word “sale.” The indictment here states the essential elements of the offense: a sale and a controlled substance.

Defendant’s second point is an abstract statement but we will treat it as a claim of plain error.

Defendant alleges his trial counsel was ineffective in permitting him to enter an equivocal plea and in failing to investigate and prepare for trial. However, when a guilty plea has been entered, adequacy of counsel is irrelevant except as it relates to the voluntariness of the plea. Hess v. State, 531 S.W.2d 774[4] (Mo.App.1975). Accordingly, we will treat defendant’s point as alleging error in concluding defendant’s plea was not rendered involuntary on the basis of ineffective assistance of counsel. Defendant contends his plea was equivocal and therefore involuntary because he had no recollection of the alleged sales. He contends his counsel was ineffective in allowing him to enter such a plea.

The plea hearing record reflects the following: Defendant wished to plead guilty although he was unable to remember either alleged sale. He admitted he made some sales during April and May but did not remember the buyers. He also admitted his memory was adversely affected by his own use of drugs. The trial judge examined defendant in full compliance with Supreme Court Rule 25.04 as to the volun-tariness of his plea.

The trial court may not accept an equivocal plea. Supreme Court Rule 25.04, YAMS; State v. Bonds, 521 S.W.2d 18[4] (Mo.App.1975). Defendant’s plea, however, was not equivocal. See Bradley v. State, 494 S.W.2d 45[3, 4] (Mo.1973), where the court said: “If as it has been determined Bradley pleaded guilty voluntarily, knowingly and with understanding, his actual guilt, or an express admission of guilt, is not a constitutional prerequisite to the imposition of a criminal penalty.” See also North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and Clay v. State, 532 S.W.2d 216[2] (Mo.App.1975). A plea of guilty, otherwise voluntary and intelligently entered, is not equivocal merely because the accused claims to have no personal recollection of the crime to which he pleaded guilty. See Bounds v. State, 556 S.W.2d 497 (Mo.App.1977) where defendant entered a plea of guilty while protesting his innocence. Here, defendant’s inability to remember the alleged sales did not render his plea equivocal.

Furthermore, the record shows defendant’s guilty plea was voluntary. The trial judge examined him thoroughly pursuant to Supreme Court Rule 25.04, VAMS. At the end of the colloquy defendant told the court he was satisfied with his counsel’s advice and was pleading guilty of his own free will. We find no plain error.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: DOWD, Presiding Judge.

text:
    Erie (Jack) FOSTER, Plaintiff-Appellant, v. Helen M. FOSTER, Deceased, et al., Defendants-Respondents.
    No. 38388.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 18, 1978.

      Lashly, Neum & Johnson, P. W. Lashly, St. Louis, for plaintiff-appellant.
    Donald E. Walter, Arnold, George Cur-ran, St. Louis, Kurt D. Breeze, Pannell, Dodson & Robinson, Festus, for defendants-respondents.
   DOWD, Presiding Judge.

In this will contest action, the trial court dismissed plaintiff’s petition because of plaintiff’s failure to obtain service on a necessary party-defendant for a period over 26 months, when the statute required service within 90 days. The Court found that the plaintiff failed to show “good cause” in • not fulfilling the statutory requirement. Plaintiff appeals. We affirm.

The statute governing this case is Section 473.083(4) RSMo 1969 which sets out the procedure in will contest actions and provides:

“4. In any such action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant, duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed by the circuit court at the cost of the petitioner.”

Compliance with this statute is necessary to give the court jurisdiction over the subject matter of the suit. Blatt v. Haile, 291 S.W.2d 85, 89[3-5] (Mo.1956); Haas v. Haas, 504 S.W.2d 44, 46 (Mo.1973).

The issue before us is whether the trial court abused its discretion in ruling that good cause was not shown for failing to complete service within the 90 day period prescribed by the statute. Cole v. Smith, 370 S.W.2d 307, 309 (Mo.1963).

The record indicates that on March 6, 1974 Erie Foster filed suit contesting the will of his deceased brother Lawrence Walter Foster. The defendants are all heirs and legatees of Lawrence Foster. In his petition Erie Foster requested that personal service be made upon eight of the defendants. The sheriff made a non est return of service as to one of these defendants, Charles Herbert, who was a nephew of the testator and a named legatee. Charles Herbert was vacationing out of the state at the time the sheriff attempted service.

Service by publication was completed upon other defendants on May 22, 1974. The Order of Publication of Notice itself did not direct Charles Herbert to take notice of the will contest suit. Rather, it listed the style of the case, which did name Charles Herbert as a defendant, and directed nine other named defendants to take notice of the action. Thus this service by publication was not effective against Charles Herbert.

On April 23,1976 defendants Albert Herbert and Robert Herbert filed a Motion to Dismiss for failure to complete service upon all necessary parties defendant. After this motion was filed, plaintiff requested an alias summons be directed to Charles Herbert. Service was completed on May 28, 1976, over two years after the filing of the petition. The trial court ruled on July 26, 1976 that “petitioner has failed to show good cause for failure to secure and complete service from March 6,1974 to May 28, 1976”, and dismissed the case.

Missouri law clearly mandates that in will contest actions, the petition “shall be dismissed” if service of process is not obtained within 90 days after the petition is filed “in the absence of a showing by the petitioner of good cause for failure to secure and complete service.” 473.083(4) Here the record clearly shows that plaintiff failed to proceed diligently to secure and complete service of process on Charles Herbert. There was over a two year period of dormancy before service was completed upon all necessary parties. Plaintiff presented no evidence to justify the delay other than that Charles Herbert was vacationing out of state at the time the sheriff attempted to personally serve him. No further efforts were made to secure service either personally or by publication for a period of two years. Hanna v. Sheetz, 240 Mo.App. 385, 205 S.W.2d 955, 956[2-4] (1947).

The policy behind § 473.083(4) RSMo 1973 is that contest of will admitted to probate should either be expeditiously prosecuted or not prosecuted at all. Kane v. Mercantile Trust Company National Association, 513 S.W.2d 362, 365[6] (Mo.1974); Cole v. Smith, 370 S.W.2d 307, 309[3] (Mo.1963). Here, service was required upon Charles Herbert since he is a legatee of the contested will, and thus a necessary party. Kane v. Mercantile Trust Company National Association, supra, at 363[2, 3]. Given the facts of this case we believe the trial court did not abuse its discretion in finding that plaintiff failed to show good cause for not completing service within the statutory time limits.

Plaintiff also contends that defendants are guilty of laches since the defendants filed the Motion to Dismiss over two years after initiation of the suit. As noted earlier, the purpose of obtaining service of process within the prescribed statutory period is to give the trial court jurisdiction over the subject matter of the will contest suit. Blatt v. Haile, 291 S.W.2d 85, 89[3-5] (Mo.1956); Haas v. Haas, 504 S.W.2d 44, 46 (Mo.1973). Jurisdictional defects may be raised at any time. Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840, 842[l-3] (1934); Randles v. Schaffner, 485 S.W.2d 1, 2[2] (Mo.1972). Thus, laches cannot constitute a defense when defendant raises such a jurisdictional defect.

Lastly, plaintiff contends that there was no prejudice shown in the failure to complete service on Charles Herbert within the 90 day statutory period. The issue here is not whether the defendants were prejudiced by the delay of over 26 months in obtaining service on Charles Herbert but whether plaintiff complied with the mandatory provisions of Section 473.083(4) which require service on all parties defendant within 90 days. The statute mandates that in the absence of a showing of good cause for failure to secure service the petition shall be dismissed. We have found that the trial court’s finding that the plaintiff failed to show good cause in not 'fulfilling the statutory requirement in not completing service on a necessary party defendant within 90 days is not an abuse of discretion. The point is without merit.

Defendant filed a motion contending that the appeal “is without basis in law or fact, and is made for vexation and delay and is frivolous in nature”, and asked that defendant be awarded damages. This motion was taken with the case. This motion was considered by the court and denied.

The judgment is affirmed.

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