author: HOGGE, Judge.

text:
    Frank J. CROKE and S. V. Walker, Jr., Appellants, v. PUBLIC SERVICE COMMISSION OF KENTUCKY, Middletown Manufacturing Company, and Louisville Gas and Electric Company, Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1978.

      C. Edward Glasscock, Stephen R. Schmidt, Brown, Todd & Heyburn, Louisville, for appellants.
    0. Grant Bruton, Middleton, Reutlinger & Baird, Louisville, E. Gaines Davis, Jr., Morris E. Burton, Frankfort, for appellees.
    Before GANT, HOGGE and WINTER-SHEIMER, JJ.
   HOGGE, Judge.

This is an appeal from a judgment of the Franklin Circuit Court affirming an order of the Public Service Commission of Kentucky. The Public Service Commission order had directed that a natural gas allocation be transferred to the Simpsonville plant of Middletown Manufacturing Company (hereinafter called Middletown) and terminated as to the property of the appellants, Frank J. Croke and S. V. Walker, Jr.

The appellants are the owners of a parcel of land in Louisville, Kentucky, part of which was leased until August 31, 1976, by Middletown. Middletown had moved its finishing and shipping department from Simpsonville to the property in 1970 and appellants had become their lessors. Mid-dletown, who had been using process natural gas in its manufacturing at Simpson-ville, continued to use the gas in Louisville.

In 1973, the Public Service Commission of Kentucky ordered that restrictions be imposed by Louisville Gas and Electric Company (hereinafter referred to as L.G. & E.) upon new residential, commercial and industrial customers, and upon providing increased requirements of existing commercial and industrial customers. Pursuant to this order, L.G. & E. issued a tariff which provided that after October 15, 1973, the company would not initiate service to any new gas customer, location or service point, except as specifically provided for in their rules or in the order of the Public Service Commission. The amount of gas allocated to each parcel of property was based on the usage at that location during a previous base year.

Section eight of the tariff provided that if the use of gas for industrial processing or other industrial nonspace heating purposes at any premise was discontinued by reason of cessation of operations, gas service in quantities no greater than those previously used would be restored if such usage was resumed within six months and there had been no transfer of the entitlement to service to another location. Section nine provided that entitlement to gas service would not be transferable unless the entitlement or a portion thereof would terminate at the old location, the load and usage would be no greater at the new location and if the new location could be served from an existing gas main extension or one installed pursuant to the gas main extension rules. In addition, the change of location must have been forced by governmental action, or there must be identity of ownership and control and a guarantee of termination at the old location and no net increase in connected load or gas usage.

Some time after the effective date of this tariff, Middletown began to make plans to transfer its finishing operations back to Simpsonville, and sought transfer of the gas entitlement from the Louisville property to the Simpsonville plant. L.G. & E. refused to transfer the entitlement for the reason that it was tied to the property, unless it could be transferred with the consent of appellants. There was testimony that appellants tried to sell the allocation to Mid-dletown for $20,000.00. Other conflicting evidence suggested that Middletown approached the appellants to persuade them to sell, and that the two could not agree on a price. In any event, the appellants were unwilling to relinquish the entitlement. On May 6, 1976, Middletown filed a complaint against L.G. & E. with the Public Service Commission charging that the rules and regulations of L.G. & E. were totally unworkable with respect to gas used for manufacturing purposes and requesting that L.G. & E. provide Middletown with the same quantity of natural gas for its finishing and shipping department at Simpson-ville as had been provided to the Louisville property. L.G. & E. opposed the request, and a petition by appellants to intervene in the proceeding was sustained.

The Commission found that a natural gas allocation of 1850 mcf. per month existed at the Louisville property due to Middletown’s manufacturing operation, that this use of natural gas did not exist on the property prior to the lease by Middletown, and ordered that the natural gas allocation be transferred to Middletown’s Simpsonville plant and terminated on appellant’s property. On appeal, the Franklin Circuit Court affirmed the decision of the Public Service Commission. The appellants, Croke and Walker, then brought this proceeding.

The first issue before this court is whether the Public Service Commission had the legal authority to order L.G. & E. to transfer the gas entitlement where such transfer violated the rules and regulations properly adopted by L.G. & E. as to the circumstances under which a gas entitlement could be transferred without ordering a change in the rules and regulations. The Public Service Commission’s powers are purely statutory; like other administrative boards and agencies, it has only such powers as are conferred expressly or by necessary or fair implication. City of Olive Hill v. Public Service Commission, 305 Ky. 249, 203 S.W.2d 68 (1947), overruled on other grounds, McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197 (1961); Ashland-Boyd County City-County Health Department v. Riggs, Ky., 252 S.W.2d 922 (1953). KRS 278.280, the statute pertaining to situations where existing rules are not appropriate for application to certain circumstances, reads in part as follows:

Whenever the commission, upon its own motion or upon complaint as provided in KRS 278.260, and after a hearing had upon reasonable notice, finds that the rules, regulations, practices ... or service of any utility, or the method of . distribution ... or supply employed by it, are unjust, unreasonable, unsafe, improper, inadequate or insufficient, the commission shall determine the just, reasonable, safe, proper, adequate or sufficient rules, regulations . to be . . . employed, and shall fix the same by its order, rule, or regulation.

We have no doubt that the Public Service Commission has the power to make appropriate findings and order change in a rule, and such a change may result in ordering transfer of a gas entitlement. However, in this case the Public Service Commission ordered L.G. & E. to transfer the gas entitlement from appellant’s property to Middle-town’s Simpsonville plant in violation of the L.G. & E. No-Transfer Rule, without following the appropriate procedure and ordering a change in the rule. We hold that this was an action which the Public Service Commission had no authority to take. KRS 278.280; City of Olive Hill v. Public Service Commission, supra; Ashland-Boyd County City-County Health Department v. Riggs, supra.

In view of our decision on this issue, we do not find it necessary to consider the other issues presented.

The judgment of the circuit court is reversed, and remanded for further proceedings consistent with this opinion.

All concur.


source: Caselaw Access Project

author: WILHOIT, Judge.

license: Public Domain

text:
    HANOVER INSURANCE COMPANY, Appellant, v. Robert J. BLINCOE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1978.

      George R. Carter, William P. Swain, Thomas H. Watson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    Edward F. Rectenwald, Louisville, for ap-pellee.
    Before HOWERTON, REYNOLDS and WILHOIT, JJ.
   WILHOIT, Judge.

Hanover Insurance Company appeals from a judgment of the Jefferson Circuit Court entered on a jury verdict awarding the appellee, Robert J. Blincoe, $10,000.00 for pain and suffering under the uninsured motorist provisions of his automobile insurance policy. We affirm.

Mr. Blincoe was injured in a collision between his automobile and another automobile being negligently operated by an uninsured motorist. Blincoe was insured by Hanover under a policy providing both “no-fault” and uninsured motorist coverage. The basic reparation benefits due him under the no-fault coverage were paid by the insurance company, but later Blincoe brought this action against the uninsured tortfeasor and Hanover for $10,000.00 claimed due for pain and suffering. He asserted that Hanover was liable to him because of his uninsured motorist coverage for the amount of any verdict he should receive against the tortfeasor. The insurance company disclaimed any liability unless its insured could first establish that he met one of the “threshold” requirements set out in KRS 304.39-060(2)(b). The trial court ruled that the threshold requirements were inapplicable because the tortfeasor was an uninsured motorist. A verdict was rendered by the jury in favor of Blincoe for the full amount of his claim, and judgment was entered against the uninsured motorist and Hanover. From this judgment Hanover appeals.

The first question to be answered is whether the trial court was correct in ruling that the threshold requirements do not apply in this case.

KRS 304.39-060(2)(a) abolishes tort liability for damages because of bodily injury to the extent that the basic reparation benefits provided for in the Motor Vehicle Reparations Act are payable under any insurance policy or other statutory method of security. No specific mention is made in this subsection concerning the abolition or preservation of the tort liability of an uninsured motorist for pain and suffering. However, it appears from the wording of this section that an uninsured motorist would not be subject to a tort claim for loss by an injured party to the extent that basic reparation benefits are payable to the injured party under an insurance policy, as here, or other security. Nothing in this subsection precludes recovery in tort for pain and suffering against uninsured motorist.

KRS 304.39-060(2)(b) provides that recovery in tort for damages due to pain and suffering is permitted only if one of its enumerated threshold requirements is met; however, this limitation is specifically applied only to actions in tort brought against “the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required in this subtitle.” (Emphasis added.) The tortfeasor here had neither insurance nor other security as required by the Act. The plain wording of this subsection indicates that its limitations do not apply to anyone other than a motorist who has provided statutory security.

The insurance company argues, nevertheless, that the legislative intent to apply the threshold requirements to a claim for pain and suffering against an uninsured motorist becomes evident if one considers the stated purpose of the Motor Vehicle Reparations Act to reduce litigation and considers sections of the Act in addition to those we have discussed. The Act has a number of stated purposes including not only that to reduce litigation but the equally important purpose to require motorists to obtain insurance or other security. KRS 304.39-010 and 304.39-100. While the retention of tort liability in a case such as that before us might go somewhat contrary to the purpose of reducing litigation, it could also be viewed as further inducement for motorists to obtain insurance. In short, as an expression of legislative intent on the question with which we are now confronted, the stated purposes of the Act are at best ambiguous. The other provisions cited by Hanover, KRS 304.39-060(7), KRS 304.39-060(4), and KRS 304.39-310(2), seem equally ambiguous as indicating legislative intent on this question. Guided by the principles that “plain words are easiest understood” and that the intention of the Legislature is best ascertained from the words employed, Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962); Kentucky Association of Chiropractors, Inc. v. Jefferson County Medical Society, Ky., 549 S.W.2d 817 (1977); and considering the plain words used in KRS 304.39-060(2)(a) and (2)(b), we believe the ruling of the trial court was correct.

The insurance company also maintains that the amount of the verdict was so excessive as to require reversal under the “first blush rule.” Blincoe’s principal injury was a laceration to his right knee. As a result of this injury he was unable to work and was on crutches for three and one-half to four weeks. His physician testified that the laceration was confined to the skin and underlying tissue, not affecting the joint or muscles, but that it was a big laceration requiring 25 or 30 sutures. Blincoe, who was 24 years old at the time of trial, testified that after the collision his kneecap was “hanging out of my pants” and that he was experiencing great pain, but was initially given no medication for the pain until the nature of his head injuries could be determined. He stated that his injured kneecap was no longer in its proper place and that after a long day at work, or after lifting a lot of weight or using his knee a lot, it continues to ache and “gets swelling and redness.” This testimony was given over two years after the accident. Both of Blin-coe’s legs were exhibited to the jury so it could see his scar and the position of the injured kneecap in relation to his other kneecap. No medical testimony was presented by the insurance company. The jury was instructed on both past and future pain and suffering.

The amount of the verdict was certainly generous but not so patently unreasonable or so completely in disregard of the evidence and the permissible inferences that could be drawn from it by impartial people that we should substitute our evaluation for that made by the jury. Elmore v. Speicher, Ky., 481 S.W.2d 673 (1972).

The judgment of the trial court is affirmed.

All concur.

      . See KRS 304.39-020(5) which defines “loss” in the sense used here.


author: HOWERTON, Judge.

text:
    COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE, the City of Louisville and the County of Jefferson, Appellants, v. ESTATE of Joe S. DOYLE et al., Appellees. FLOYD STREET INVESTMENT CO. et al., Cross-Appellants, v. COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE et al., Cross-Appellees. ALGONQUIN-IROQUOIS MANOR, INC., Cross-Appellant, v. COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE et al., Cross-Appellees. Charles WEISBERG et al., Appellants, v. COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE, Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1978.
    As Modified on Denial of Rehearing Jan. 19, 1979.

      Robert F. Matthews, John H. Stites, III, Louisville, Herman E. Frick, Asst. Director, City of Louisville Department of Law, Louisville, J. Bruce Miller, County Atty., Karl M. Walz, Asst. County Atty., Louisville, for appellants and cross-appellees, the Commissioners of the Sinking Fund.
    J. Bissell Roberts, Kent McElwain, Louisville, for appellee and cross-appellant, Algonquin-Iroquois Manor, Inc.
    Richard M. Trautwein, Carolyn M. Dye, Louisville, Marshall Hardy, Jr., Louisville, for appellees and cross-appellants, Floyd Street Inv. Co., et al. and the appellants Charles Weisberg, et al.
    Before HOWERTON, REYNOLDS and WILHOIT, Judges.
   HOWERTON, Judge.

This appeal results from litigation commenced in 1967 when appellants, the Commissioners of the Sinking Fund of the City of Louisville (hereinafter referred to as the “Fund”), brought suit against Joe S. Doyle to collect occupational taxes allegedly owing on income he earned by renting real property. Shortly after that suit was filed, various other individuals, partnerships, and corporations intervened in the action in order to challenge the Fund’s authority to collect occupational taxes on income from rental property. The intervenors sought a refund of occupational taxes levied and previously paid on net rental income and gain on the sale of real estate held for investment purposes, alleging it was unconstitutional for the Fund to attempt to collect the tax.

A partial summary judgment dismissing the intervenor’s claim for a refund was entered on May 7,1976. A separate appeal was prosecuted from that judgment, but the Supreme Court ordered it stayed pending the outcome of the other issues in the case.

The facts were stipulated by agreement of the parties, and the case was submitted to the trial court for a decision on the briefs. An opinion was rendered on August 11, 1976, in which the trial court held that “any attempt by the sinking fund to enforce payment of the occupational tax by individuals who hold rental property for the purpose of income is a violation of section 181 of the Constitution of Kentucky.” (Emphasis supplied.) As to individuals, the Court also invalidated an administrative rule that exempted anyone from the license tax who devoted less than 30% of his time to the management or operation of the rental property. The trial court upheld the right of the Fund to collect the license tax from any corporation or partnership which stated that it was in the business of holding real estate for rental income or investment purposes.

The Fund contends that the trial court’s judgment is erroneous in three respects. First, the Fund argues that individual income derived from the rental of real property is subject to the occupational license tax because it is from a business activity. Next, the Fund asserts the validity of its regulation which exempts from the tax individuals who devote less than 30% of their time to activities related to rental income and contends that the trial court erred in voiding it. Finally, the Fund alleges it was improper to award costs to the appellees who were denied a refund of license taxes previously paid on rental income.

The cross-appellants object to that portion of the judgment which sanctions the imposition of occupational taxes upon net rental income and gain realized on the sale of real estate owned by partnerships and corporations and held for investment purposes. They reason that rental income from real estate held for investment purposes is investment income not subject to occupational taxes regardless of whether the owner is an individual or a partnership or a corporation. They also contend that partnerships and corporations should pay no tax on income from any real property rentals, because the imposition of this tax on them, while exempting individuals, is discriminatory and in violation of sections 171 and 174 of the Kentucky Constitution. The cross-appellants also argue that in the enabling legislation for the occupational tax, the General Assembly specifically provided that the licenses would be issued and enforced on terms and conditions prescribed “by ordinance; ” and, therefore, the Board of Aldermen exceeded its authority in delegating the power to issue rules and regulations to the Fund. They raise a similar argument with respect to the fiscal court’s authority to designate someone other than the sheriff of Jefferson County to collect the occupational taxes levied pursuant to KRS 68.180. The Fund is the collector for the occupational licenses of both the City of Louisville and Jefferson County. Finally, the cross-appellants object to the Fund’s regulation which requires all business entities to report all items subject to the federal income tax but which are exempt from the occupational tax. They contend that this requirement is offensive to the constitutional right to be free from governmental intrusion into one’s privacy.

The authority of local government to levy occupational taxes on businesses, trades, occupations and professions can no longer be disputed. City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948). The principal question is whether the holding of rental property for income is a business or merely an investment. If it is a business, then it necessarily follows that it will be subject to the tax. Our analysis of the activities involved in renting real property leads us to conclude that such activities may indeed be considered a business venture in most cases, but not necessarily in all.

An individual may be engaged in the “business” of renting real property just as a partnership or corporation may be in such a business. Partnerships and corporations are uniquely “business” organizations, however, and they may be presumed to be in some business. If their primary business is real estate rental, the license will be for that activity, but the fee will be based on the total net income. If the partnership or corporation is primarily in another type business, it must obtain a license for that activity, but base the fee on all income including rents or gains it realizes from real estate. A proprietorship may also have to include such income if it includes the rental income as part of the business activity. Otherwise, a license tax for an individual receiving income from rents or taxable gains on real estate will depend on whether or not it can be determined that the individual is in “business.” The regulation specifically exempts individuals renting no more than two rooms, and the regulation does not presume that an individual is in “business” unless 30% of his time is devoted to the rental activity.

An individual may be involved in rental activity in such an insignificant way that it would be neither proper nor administratively feasible to subject such an individual to an occupational tax. For that reason, we believe that the Fund’s regulation exempting individuals devoting less than 30% of their time to renting real property could be justified on the basis of administrative considerations alone. The court in Sebree, supra, cited the following quotation from Carmichael v. Southern Coal and Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327 (1937):

Administrative convenience and expense in the collection or measurement of the tax are alone a sufficient justification for the difference between the treatment of small incomes or small taxpayers and that meted out to others.

We can appreciate the dilemma of the trial judge when he considered the 30% requirement. Thirty percent (30%) of what time? The intervenors complained that the regulation was vague in that sense, but their actual objection was that it was discriminatory because it only applied to individuals and not to the partnerships and corporations. The rule had apparently been administered fairly among individual taxpayers, as no objections are known; but the regulation’s future might be more secure, if challenged, if specific guidelines were adopted to aid in applying the rule. There was no real controversy over the legality of the rule.

Some rule is necessary to exclude those individuals who truly are not in “business,” but who have merely invested some savings in rental property and who devote little or no time or effort to “managing” the property. Until some real controversy is raised challenging the administration of the 30% rule, we will consider it a reasonable method of excluding individuals with rental property who should not or need not be considered to be in business. It should also be noted that the 30% rule merely creates a presumption of engaging in a business activity rather than simply investing money for production of income. If the presumption is applied, it may be rebutted.

We are not persuaded that the failure to include partnerships and corporations in the 30% rule results in an unconstitutional discrimination against partnerships or corporations. Kentucky Courts have consistently held that corporations and individuals may be placed in different categories for tax purposes without violating constitutional limitations. Square D. Company v. Kentucky Board of Tax Appeals, Ky., 415 S.W.2d 594 (1967). We see no reason this rule should not apply to partnerships as well.

The General Assembly specifically directed that the occupational tax is to be computed at a percentage of the net profits of businesses, trades, and occupations. KRS 91.200(l)(b). We have little difficulty in concluding that the legislature intended net profits to include all activities which generate income for a business. If business income is generated by renting real estate, we see no reason why it should be excluded from the net profit figure on which occupational tax is based.

Similar reasoning convinces us that gain realized on the sale of rental real property should be treated no differently than gain on the sale of any other business asset. It seems clear that gain on the sale of assets is a natural part of the earnings an individual, a partnership, or a corporation derives from a business and, as such, should be subject to the license tax in the same manner and to the same extent as capital gains are considered to be taxable income for federal taxes.

We see little merit in the argument advanced by the cross-appellants that the Board of Aldermen improperly delegated to the Fund the authority to promulgate and enforce rules and regulations pertaining to the license tax. The power delegated to the commissioners is that of making rules for enforcing the license tax ordinance, and we are unable to agree with the cross-appellants’ assertion that legislative responsibility has been illegally delegated, simply because the commissioners issued regulations in furtherance of that objective.

Furthermore, in order to dispel any future question as to whether the regulations promulgated by the Fund are “by ordinance,” it might be well for the Board of Aldermen to treat the regulations as recommendations and then validate the recommendations by adopting them as part of the licensing ordinance. We hasten to add, however, that such action, or lack of it, by the Aldermen in no way affects our decision here.

Cross-appellants’ second argument with respect to improper delegation is that the fiscal court exceeded its authority in designating the Fund as the collecting agency for the county’s occupational tax, because the Sheriff of Jefferson County is the statutory collector of all county taxes. We find KRS 68.185 to be dispositive of this contention. KRS 68.185 provides:

The fiscal court of said counties may provide for the levy, the assessment and the collection of the license fees authorized by KRS 68.180 and 160.482 to 160.488, provide for the issuance and enforcement of licenses, and specify the county governmental purposes to which the revenue derived from the license fees authorized by KRS 68.180 shall be applied. (Emphasis added)

We are satisfied that providing for the assessment and collection of the license fees may be accomplished by delegating that authority to the Fund.

The cross-appellants’ final argument is that the regulation imposing on business entities subject to the licensing ordinance the duty to register and give information as to items subject to the federal income tax but exempt from the occupational tax represents an unconstitutional exercise of absolute and arbitrary power. We do not believe that this argument can succeed, especially in view of the fact that the requirement is rationally related to a legitimate need of the Fund to have accurate information upon which to base the license fee, and the fact that the regulations provide a penalty for violation of the confidential nature of the returns. (See Article V-6 of the License Fee Regulations of the Sinking Fund of Louisville.) Although we fail to see any advantage in so doing, we would not prohibit any licensee from having the option of determining its occupational tax liability on the sole basis of the net federal income tax without disclosing any items which may be deducted from the license tax.

Finally, in our opinion, it is not necessary for us to decide the question of whether costs were properly awarded. However, as this case is to be remanded to the trial court, we believe it appropriate that the trial judge reconsider the issue of costs in light of the fact that the Fund has ultimately prevailed on all issues.

Because of the results reached herein, the issues presented in Appeals # CA-1949MR and # 78-CA-47-MR require no further determination by this court. Those appeals are, therefore, dismissed. The rights of any individual licensee in the two actions are amply protected by the rulings in this opinion. Refunds shall be considered for anyone who protected his right to a refund by purchasing the license under protest and who is entitled to an exemption under the 30% rule or other provision of the ordinance, whether by stipulation or proven fact, provided the protest and challenge were timely presented to the Fund before any attempt was made to intervene in this action.

Insofar as the judgment of the circuit court upholds the authority of the Fund to collect occupational taxes from partnerships and corporations engaged in renting real property, it is affirmed.

Insofar as the judgment below exempts individuals engaged in renting real estate from any liability for occupational taxes and invalidates the Fund’s 30% rule, it is reversed and remanded for entry of a judgment consistent with this opinion.

All concur.


author: GUNN, Judge.

text:
    Goldie KOEHLER et al., Respondent (Plaintiffs), v. BURLINGTON NORTHERN, INC., Appellant (Defendant).
    No. 38259.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 24, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied June 20, 1978.

      Lucas & Murphy, Joseph A. Murphy, St. Louis, for appellant (defendant).
    Charles E. Gray, Gray & Ritter, St. Louis, for respondents (plaintiffs).
   GUNN, Judge.

This appeal arises from a suit by plaintiffs, Goldie and Curtis Koehler, against defendant, Burlington Northern, Inc., for injuries sustained as a result of a collision between plaintiffs’ van and defendant’s freight train. The jury verdict was for plaintiffs in the amount of $605,000. On appeal defendant contends that plaintiffs’ verdict directing instructions were erroneous in several respects. It further contends that the jury’s largess in its award of damages was so grossly excessive as to indicate its verdict was the product of bias and prejudice. Defendant argues that the amount was unjustified under the evidence in light of awards in other cases involving similar injuries and that a remittitur is required.

We affirm.

The collision occurred in Lincoln County, north of Elsberry, as plaintiffs were returning from a July 4 family outing in Clarksville in celebration of a relative’s return from military service. Plaintiff Curtis Koehler was driving the van and was proceeding south on Highway 79 to its intersection with Highway P. At the intersection, Mr. Koehler came to a complete stop, then turned left onto Highway P and at a speed of 8-15 m.p.h. drove toward defendant’s railroad crossing which was 75-100 feet east of Highway P. As he approached the crossing, Mr. Koehler decreased his speed until he came to a momentary stop within five feet of the tracks. He described his stop as a “rolling St. Louis stop.” Both he and his stepson, Ed Forrester, who was riding next to him in the front passenger’s seat, looked up and down the track to see if a train was coming. Neither saw nor heard the approaching train. After his momentary stop, Mr. Koehler continued across the tracks. The van was almost completely across when Mr. Koehler first heard the oncoming locomotive. He turned to look just as the train crashed into the van 6-8 inches from the rear on the passenger side. The van was spun clockwise 270 degrees and dragged 15-20 feet up the track. Goldie Koehler, who was riding in the second to last seat, was thrown from the van and landed unconscious near a railroad cross-buck sign. Apparently no one other than Mrs. Koehler was seriously injured, though at least one of the Koehlers’ children was also thrown from the van.

At the time of the collision, the van’s windows were closed and the air conditioner was on. Mr. Koehler testified that he had previously driven the van under similar conditions and had been able to hear train bells and whistles when sounded. Both Mr. Koehler and his stepson Ed testified that the train had failed to sound any warning signal prior to its approach. Two other eyewitnesses testified that they did not recall hearing any warning signal by the train, but both admitted on cross examination that they could not state positively that none was sounded. Mrs. Koehler had no recollection of the events surrounding the collision.

Witnesses for the railroad testified that the train approached the Highway P crossing at a speed of 25 miles per hour. Approximately 200 feet from the crossing, the train’s brakeman first noticed plaintiffs’ van moving towards the crossing. Nothing appeared unusual to the brakeman as the van slowed its approach and came to a stop near the crossing. When the train had approached to within 50 to 75 feet of the crossing, the brakeman saw the van accelerate and realized it was attempting to cross the tracks ahead of the train. He immediately alerted the engineer who activated the emergency braking system. The train did not come to a stop until its caboose was over 100 feet beyond the crossing. The engineer maintained that he had begun sounding the standard two long, one short, one long, blasts of the locomotive’s whistle at the whistling post, 480 feet before the crossing. He stated that he ceased his warning signals only when it became necessary to do so in order to apply the emergency brakes. The brakeman corroborated the engineer’s testimony that the train’s whistle had been sounded from the whistling post. Whether the train’s bell had been sounded, in addition to the whistle, was not known by the engineer.

Koehler’s inability to see the approaching train was attributed to the high brush and weeds which were allowed to flourish on the railroad’s right-of-way. Both Mr. Koehler and his stepson Ed testified that when stopped at the tracks, they had looked in the direction of the on-coming train but did not see it because of the high weeds. In addition to this testimony, several witnesses testified that the weeds and brush were 6-8 feet tall at the time and that they were allowed to grow so close to the track that drivers attempting to cross had to pull almost onto the tracks to see if a train was coming. Defendant’s witnesses testified that on the day of the accident the weeds were no more than 3 feet high. Witnesses for both parties agreed that shortly after the accident the weeds and brush were cut.

The Highway P crossing was marked by crossbucks to indicate the presence of a railroad crossing. No mechanical warning device or crossing gate had been installed even though evidence showed that Highway P was heavily travelled throughout the summer months by persons seeking access to Mississippi River recreational areas.

Immediately after the collision, an ambulance was summoned for Mrs. Koehler who was unconscious. She was first taken to a local hospital but because of the seriousness of her injuries was transported to St. Joseph’s Hospital in Kirkwood. When she arrived she was in extremely critical condition and remained so for several days. We will detail Mrs. Koehler’s injuries in our discussion of the points raised concerning the alleged excessiveness of the verdict. It is sufficient here to say that she produced evidence of severe injuries to many of her limbs and internal organs, resulting in permanent scarring, disfunction and disability.

At the conclusion of the evidence the jury returned verdicts in favor of the plaintiffs. They awarded Mr. Koehler $4,000 damages for injuries to his wife and $1,000 for damages to his property. Mrs. Koehler was awarded $600,000 in damages resulting from her injuries. The railroad appeals both awards.

Defendant first argues that plaintiffs’ verdict directing instructions were defective in that they did not submit plaintiffs’ theory of negligence as pleaded; that they erroneously stated the law regarding defendant’s duty to warn the public of its approach to a crossing; and that they failed to submit the ultimate issue of fact. The instruction complained of was submitted as follows:

“Your verdict must be for plaintiff Goldie Koehler if you believe:
First, defendant failed to give an adequate and timely warning, and
Second, defendant was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to plaintiff Goldie Koehler.
The term ‘negligence’ as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

Defendant’s first attack on the verdict directing instructions is that plaintiffs did not plead the inadequacy or the untimeliness of the warning given but only that no warning was given at all. Plaintiffs rely on' the following allegation contained in their petition as the basis for the instruction given.

“3. The aforesaid collision and the resulting injuries and damages sustained by plaintiff were directly and proximately caused by the negligence of defendant in the following respects, to-wit: .
c) It failed, through its employees and the negligence of its employees, to sound a warning of the approach of said train to said crossing as required by the laws of the State of Missouri.”

Instructions must be within the general scope of the pleadings. Price v. Seidler, 408 S.W.2d 815 (Mo.1966). An instruction which is broader than the pleadings i. e., one that allows the jury to find for plaintiffs on a basis different than that pleaded and proved, is erroneous. Faught v. St. Louis-San Francisco Ry. Co., 325 S.W.2d 776 (Mo.1959); Benham v. McCoy, 213 S.W.2d 914 (Mo.1948). Here, plaintiffs’ pleadings contained an allegation that the defendant was negligent in failing to sound a warning as required by the laws of this state. Such an allegation is broad enough to encompass the common law and decisional law in addition to the statutory law. Thus, if the law under any of these sources requires defendant to give adequate and timely warning, the instruction given is within the scope of the pleadings.

Holding as we do on the breadth of plaintiffs’ pleadings, we reach defendant’s second point regarding the verdict directing instructions. We indite the law of this state governing a railroad’s duty to signal its approach at a public crossing and examine the instructions to determine if they embody the law. By statute a railroad is required to ring its bell or sound its whistle from a point no less than 80 rods from the crossing. Failure to sound one or the other of the prescribed signals results in liability by the railroad for all damages proximately caused by its omission. § 389.-990, RSMo.1969. This statutory warning is not coextensive with the railroad’s duty to warn of its approach under the common law as interpreted by the courts of this state. Doolin v. Swain, 524 S.W.2d 877 (Mo. banc 1975); Sisk v. Chicago, B. & O. Ry. Co., 67 S.W.2d 830 (Mo.App.1934). Under the common law, the railroad has a duty when nearing a crossing to exercise ordinary care to avoid injury to persons and property by warnings or otherwise. Whenever danger to persons or property may be reasonably anticipated, it must signal the approach of its trains so as to alert those in a position of potential peril of its impending presence. Hackett v. Wabash R.R. Co., 271 S.W.2d 573, 577-578 (Mo.1954).

“The means of the warning should be commensurate with the danger to be encountered by the highway traveler in the circumstances and should be timely. Generally the means employed for the warning of a train’s approach is the sounding of a whistle or the ringing of a bell. Our statute (§ 389.990, supra), requiring a warning or the ringing of a bell, did not do away with the common-law [sic] duty of a railroad to signal the approach of its trains. The statute is but cumulative of the common law, and the statute only provides the minimum requirements of the means and the timeliness of warnings at highway crossings. The questions of negligence at common law in failing to take the precaution of giving a warning, and of the timeliness and adequacy of a warning given are generally jury questions.” (emphasis added)

Thus, the railroad has the common law duty to give such warnings in excess of those required by statute as are warranted in the exercise of ordinary care under the circumstances. Williams v. Thompson, 166 S.W.2d 785 (Mo.App.1942). Each case must be decided on its own facts to determine what, if any, additional warnings must be given to avoid negligence. Where the particular crossing is more hazardous than ordinary because it is heavily travelled or its terrain is such that motorists’ line of sight down the track is obstructed, it is a jury question whether the railroad has met its duty of due care to give adequate warning of the approach of its trains. Grothe v. St. Louis-San Francisco Ry. Co., 460 S.W.2d 711 (Mo.1970); Hackett v. Wabash R.R. Co., supra; Sisk v. Chicago, B. & O. Ry. Co., supra. Certainly, the extent and location of any weeds or brush which block the highway traveller’s view of the train are circumstances to be considered on the question on the sufficiency of the warning. Baldwin v. Atchison, Topeka & Santa Fe Ry. Co., 425 S.W.2d 905 (Mo.1968).

It is clear from the foregoing that plaintiffs’ verdict directing instructions correctly submitted for the jury’s consideration whether defendant had met its common law duty to give a timely and adequate warning such as an ordinarily careful and prudent person would give under similar circumstances. Plaintiffs produced competent evidence that no whistle or bell was sounded as the train approached the Highway P crossing. If the jury believed this testimony, defendant breached even its statutory duty. Moreover, there was substantial evidence by disinterested witnesses that this was an extrahazardous crossing necessitating warnings in addition to those required by statute. Resorts and fishing lakes along Highway P attracted many persons making traffic at the crossing very heavy in the summer when this collision occurred. In addition, there was evidence, again from disinterested witnesses, that weeds and brush were allowed to grow so high and so close to the tracks that motorists were required to pull up almost onto the tracks before they could see an oncoming train. Under these facts there was a jury question whether defendant’s warning (if any was given) was adequate and timely so as to warn plaintiffs of the approaching train.

Defendant’s argument that the verdict directing instructions misstated the law in that they failed to further define “adequate and timely warning” is without merit. It is true that terms of art included in instructions must be defined to be fully understood by a jury. The meaning of nontechnical, readily understandable phrases, however, need not be explicated. To require otherwise would envelop juries in a morass of philological subtleties and would impede the truth finding process. This court in Kinder v. Pursley, 488 S.W.2d 937 (Mo.App.1972), held specifically that adequate and timely warning is a phrase which defines itself and is thus readily comprehensible by a jury. No further definition is necessary when the meaning of the words used are clear from the context of the case. See White v. Rohrer, 267 S.W.2d 31 (Mo.1954); see also MAI 17.01; MAI 17.05. Plaintiffs’ verdict directing instructions correctly submitted defendant’s duty to warn under the laws of this state.

Defendant’s final challenge to the verdict directing instructions is that they submitted unnecessary evidentiary detail but failed to submit the ultimate issue to the jury. As defendant correctly states, the goal of MAI is to leave evidentiary detail to the argument of counsel and to submit only the ultimate issues for the jury’s resolution by means of simple and concise instructions. Rule 70.01 VAMR; Stemme v. Siedhoff, 427 S.W.2d 461 (Mo.1968); Glastris v. Union Electric Co., 542 S.W.2d 65 (Mo.App.1976). But defendant’s conclusion that these instructions are in violation of MAI’s mandates is in error. Even a cursory examination of the contested instructions reflects that there is a complete absence of unnecessary evidentiary detail. We have previously stated that these instructions properly placed the ultimate issue of defendant’s negligence before the jury. The verdict directing instructions do not suffer from the infirmities defendant has suggested.

Defendant’s remaining points relied on relate to the alleged excessiveness of the jury’s verdict. Two separate attacks have been made. First, defendant argues that the verdict is so grossly excessive as to indicate that the entire outcome of the case was the product of bias and prejudice engendered against defendant. In the alternative, defendant argues that the verdict is merely excessive in amount under the evidence.

Defendant’s first allegation of error, if sustained, can only be cured by granting a new trial. If a verdict is in fact the product of bias and prejudice, the jury is guilty of impropriety. Because of its prejudice against one party, it ignores the proof and exhibits its bias by the munificence of its verdict for the other party. Such misconduct vitiates the entire verdict. Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977); Worley v. Tucker Nevils, Inc., 503 S.W.2d 417 (Mo. banc 1973); Skadal v. Brown, 351 S.W.2d 684 (Mo.1961); Woodford v. Illinois Central Gulf R.R. Co., 518 S.W.2d 712 (Mo.App.1974). The mere excessiveness of the verdict, standing alone, does not establish that it was the result of bias or prejudice. Defendant must show that the verdict was glaringly unwarranted by the evidence. In addition defendant has the burden of showing some trial error or misconduct by the prevailing party responsible for prejudicing the jury against defendant. Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102 (Mo.1973); Huffman v. Young, 478 S.W.2d 332 (Mo.1972); Sanders v. H & S Motor Freight, Inc., 526 S.W.2d 332 (Mo.App.1975). Here, the only error defendant points to is that which concerns the impropriety of the verdict directing instructions. We have already ruled against defendant on that alleged error. As it has suggested no other trial error which could have engendered the requisite prejudice, we must rule against defendant on this point as well.

Defendant’s second attack on the amount of the verdict is simply that it is too bounteous under the evidence. Where the jury errs by awarding a verdict which is merely excessive, injustice may be prevented by ordering a remittitur. A new trial is not required, because the jury is guilty of no misconduct. It simply has made an honest mistake in weighing the evidence as to the nature and extent of the injury and in awarding damages disproportionate to amounts commonly awarded in cases involving similar injuries. Blevins v. Cushman Motors, supra; Worley v. Tucker Nevils, Inc., supra; Skadal v. Brown, supra.

The purpose of the doctrine of remittitur is to prevent awards from exceeding the upper limits of fair and reasonable compensation. Worley v. Tucker Nevils, Inc., supra. There is, however, no precise mathematical formula by which the jury, the trial court or this court may arrive at the proper award. No two cases are identical. Each must be decided on its own peculiar facts. Hart v. City of Butler, 393 S.W.2d 568 (Mo.1965); Lawson v. Cooper, 475 S.W.2d 442 (Mo.App.1972). Whatever the exact amount it should be sufficient to provide for the care and comfort of the injured plaintiff and should ameliorate her suffering. Sanders v. H & S Motor Freight, Inc., supra.

We are not without guidance in determining the appropriate award in a given case. We look to such factors as the plaintiff’s age, the nature and extent of the injuries and losses, the diminished working and earnings capacity, the changing economic factors, i. e., spiraling inflation, the permanency and degree of injury or disability, the amount of pain and suffering, the plaintiff’s educational level and the awards in cases involving similar injuries under the rule of uniformity. McDowell v. Southwestern Bell Tel. Co., 546 S.W.2d 160 (Mo.App.1976); Ricketts v. Kansas City Stock Yards, 537 S.W.2d 613 (Mo.App.1976); Woodford v. Illinois Central Gulf R.R. Co., supra.

In looking at these factors to determine if the verdict is excessive, we do not weigh the conflicting evidence. That is the function of the jury in reaching its verdict and of the trial court in ruling on the motion for remittitur. On appeal we view the evidence in the light most favorable to the verdict disregarding all unfavorable evidence to the contrary. Huffman v. Young, supra; Woodford v. Illinois Central Gulf R.R. Co., supra. If there is substantial evidence to support the verdict, it will be affirmed. Morris v. Israel Bros., Inc., 510 S.W.2d 437 (Mo.1974). We will not order a reduction of the verdict unless as a matter of law it is excessive. It must be so grossly excessive that it shocks the conscience of this court and convinces us that both the jury and the trial court abused their discretion. Cline v. Carthage Crushed Limestone Co., supra; Ricketts v. Kansas City Stock Yards, supra. We will exercise our power to interfere with their judgment with caution and only where the verdict is manifestly unjust. Hart v. City of Butler, supra; McDowell v. Southwestern Bell Tel. Co., supra. We recognize that the assessment of damages is primarily the function of the jury. Blevins v. Cushman Motors, supra; Blond v. Overesch, 527 S.W.2d 663 (Mo.App.1975). They are in a far better position than we to appraise the plaintiff’s injuries and award a sum which will reasonably and fairly compensate her.

We have reviewed plaintiffs injuries in light of the foregoing considerations and have concluded that the jury’s award was not so excessive as to require a remittitur.

Mrs. Koehler received serious and permanent injuries as a result of the collision with defendant’s train. When she arrived at St. Joseph’s Hospital for treatment, she was on the verge of death. She was severely battered externally with multiple lacerations, abrasions and contusions. Several bones were visibly fractured. She was in profound shock. As one of the treating physicians stated, “in general she was just a mass of bruises and abrasions.” She was taken to surgery where an exploratory lap-arotomy was performed. This operation, which is performed to learn the extent of internal injuries, requires an incision from the breast bone (xiphoid) to a point below the navel (pubic bone). Once inside, the team of surgeons found that Mrs. Koehler’s spleen and bladder were ruptured and that she was bleeding from several other organs. The spleen was removed, the bladder was sutured and the hemorrhaging was treated. After surgery, Mrs. Koehler was taken to the intensive care unit where she remained in critical condition for over a week. She remained hospitalized for 56 days.

Of the numerous fractured bones the most serious was the injury to Mrs. Koeh-ler’s pelvis. The six bones of her pelvis were crushed. Both bones in her left forearm were fractured with the bones overriding one another. The extensor tendon controlling her right thumb was severed and three to five ribs were fractured. Under normal conditions these fractures, with the exception of those to the pelvis, could have been treated immediately with excellent potential for full recovery. Because of the severity of the internal injuries, however, neither the fractures nor the severed tendon could be repaired at the time of Mrs. Koehler’s admission. As a result she suffered permanent impairment of function.

As a result of the injury to her left arm and right thumb, Mrs. Koehler’s use of both arms has been impaired. She testified that she could lift nothing heavier than a cup of coffee with her left hand and was hampered in grasping anything with her right hand. The pelvic injury left her left leg shorter than her right. This shortening caused a permanent limp and required that she walk with a cane. It also produced constant lower back pain which even the physician who examined Mrs. Koehler for the railroad admitted would be permanent. Because the pain intensifies whenever she is ambulatory, Mrs. Koehler spends most of her time in bed. She continues to take prescription painkillers every four hours to relieve her discomfort.

At the time of the accident Mrs. Koehler was 45 years old. She had been employed steadily since 1966 as a factory worker doing physical labor. Her final rate of pay was $9,600 per year. Since the accident she has been unable to do hard physical labor and has not returned to any employment. She is limited in the household functions she can perform. In addition to her regular employment, Mrs. Koehler had been a mother to her family doing the cooking and housework in addition to sewing all of her own clothes and most of her children’s. She was active in her church and various recreational activities with her family and friends. Now she can do only very limited housework because of the impaired functioning of her hands and arms and because of the constant pain. She no longer enjoys any activities outside of her home. Her sexual relationship with her husband has been severely curtailed, if not eliminated.

In monetary terms Mrs. Koehler has lost past as well as future earnings as a direct result of her injuries. Doctor and hospital bills have exceeded $11,000. In addition to these monetary damages, she has suffered physical injuries and resulting limitations. She is permanently disabled. She remains in constant pain and is often bedridden. Her left arm is deformed and she now walks with a limp. She has numerous external scars including one from just below her bustline to below her navel. There is also the potential for future complications from her internal injuries and the scar tissue they created. These include continued pain and bowel problems from adhesions in the abdominal cavity as well as hypertension from the kidney and bladder injuries.

Under the circumstances of this case, and giving effect to all relevant factors, including review of awards in other cases, we cannot say that the jury award was excessive or that the trial court abused its discretion in failing to order a remittitur. Bedwell v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 509 S.W.2d 81 (Mo.1941); McDowell v. Southwestern Bell Tel. Co., supra.

The judgment is affirmed.

WEIER and KELLY, JJ., concur.

      . The verdict directing instruction relating to Curtis Koehler was in all relevant respects identical to that relating to Goldie Koehler.

      . Defendant also argues that plaintiffs’ counsel in his closing argument abandoned his allegation of failure to sound a warning in the following colloquy:
      “Now, ladies and gentlemen, the Court has given you the instructions that are to guide you. It submits to you this issue — was timely and adequate warning given? Now, what does that mean? You take into consideration, these facts, ladies and gentlemen, to make that determination. Was the brush there? Take into consideration the amount of traffic and then tell the railroad what do you do when you come into that crossing. You don’t give two longs, a short and a long — you give it so people will know it.”
      This statement by counsel read out of context might support defendant’s allegation of abandonment. Read in context, however, it is clear that plaintiffs’ counsel is only assuming for the sake of argument that defendant gave the statutory warning. He argues that even assuming that fact, defendant would still be negligent, because the statutory warning was inadequate under the circumstances. Cf. De Armon v. City of St. Louis, 525 S.W.2d 795 (Mo.App.1975).

      . Of course, defendant introduced a substantial quantum of testimony that bells and whistles were ringing and blowing as the train approached the crossing, but conflicts in testimony are for jury resolution.

      . Again, the defendant presented evidence in conflict with plaintiffs’ on this point.


author: REINHARD, Judge.

text:
    CORK PLUMBING COMPANY, INC., Plaintiff-Respondent, v. MARTIN BLOOM ASSOCIATES, INC., et al., Defendants-Appellants.
    No. 38968.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 3, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.

      Theodore F. Schwartz, Michael C. Rose, Clayton, for defendants-appellants.
    Joseph P. Conran, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

This appeal arises from an action instituted by respondent Cork Plumbing Company, Inc. (hereafter referred to as Cork), which sought a judgment for the imposition of a mechanic’s lien upon certain real property located in St. Louis County, Missouri. Appellant, Martin Bloom Associates, Inc. (hereafter referred to as M.B.A.), was the owner of the improved real property and sought damages for breach of contract in a counterclaim. The trial court ordered a mechanic’s lien against the real property, in the form of special execution to be levied only against that property, and held against M.B.A. on its counterclaim.

Respondent has made a motion to dismiss this appeal for failure to make a “fair and concise” statement of facts as required by Rule 84.04(c). We deny respondent’s motion.

In October 1972, M.B.A. entered into a joint venture with Grand Glaize Village Co. for the construction of the Grand Glaize Apartments in St. Louis County. This joint venture was known as Grand Glaize Apartments Co., with each company holding a 50% interest. Grand Glaize Village Co. was to provide land for the project, and M.B.A. was to provide for the construction of the buildings. In October or November of 1973, Grand Glaize Village Co. encountered financial difficulties; consequently, the project was sold to a limited partnership, of which M.B.A. was one of two general partners. Appellant Security Properties ’73 was the second general partner. M.B.A. was involved in this project as owners to this extent until February or March of 1976, at which time M.B.A. sold its interest and ceased being a general partner. Appellants Gershman Investment Corporation, Solon Gershman and Oritani Savings and Loan Association were involved here originally as holders of the Deed of Trust for the subject real property. However, this Deed of Trust has been satisfied and released of record. Consequently, these appellants hold no present interest in the real property.

On August 29, 1972, Cork submitted a proposal to M.B.A. for the materials and labor necessary for the completion of plumbing and sewer work in 176 apartment units in the Grand Glaize apartment complex. The proposal was accepted thereafter, subject to final commitment by the Federal Housing Administration. In November of 1972, the commitment was received. On February 12, 1973, M.B.A. sent Cork a second contract which covered the same work as the August 29, 1972 contract and requested that it be signed. Cork signed this contract and returned it to M.B.A. Thereafter, on May 22, 1973, Cork sent M.B.A. a letter informing M.B.A. that the prices quoted in the August 29, 1972 contract would be honored for only one year, and that a 6½% increase should be anticipated at the end of that period. On June 26, 1973, M.B.A. authorized Cork to begin work as per the August 29, 1972 contract and agreed to pay the increase starting in August, 1973. Shortly thereafter, on June 28, 1973, Cork began its work.

On April 10, 1974, Cork submitted an additional proposal to M.B.A. for plumbing work to be done on a “clubhouse” in the Grand Glaize apartment complex. Thereafter on May 22, 1974, the proposal was accepted less the cost for labor and materials for certain minor items which were excluded from the original proposal. In addition to these written agreements there were also several minor oral agreements between Cork and M.B.A. for extra work which arose during this period.

The payment terms of the two contracts at issue here are different. The August 29, 1972 agreement called for payments “to be billed as the job progresses.” The February 12, 1973 contract, however, called for monthly progress payments due on or about the 20th day of each month for 90% of all labor performed, and for all the materials incorporated in the work or suitably stored at the jobsite during the preceding month. Cork billed M.B.A. monthly for the work completed. Billings were made and payments were received until May of 1974, when M.B.A. failed to pay for its May invoices. In the latter part of June 1974, the president of Cork, Willard Swyers, contacted M.B.A. in regard to the late payment. M.B.A. made assurances to Swyers that they did not have the money to make payment, but that they would have the money to do so in the near future.

An additional period of time passed in which Cork did not receive payment. At this time, Don Cork, another Cork officer, contacted Frank Malone, M.B.A.’s executive vice-president, and informed him that if payments were not received, Cork would be forced to pull off the job site. Malone indicated that M.B.A. could not pay the May, June or July invoices. Consequently, because of this failure to make current payments and M.B.A.’s statements that it would not make payments in the future, Cork pulled its men off the job on July 17, 1974. Subsequent to the removal of his men from the job, Mr. Cork and his foreman, Fred Richter, at the request of M.B.A., came back to make an adjustment on some completed ground work so that a particular building could pass inspection. This occurred on July 24, 1974, and was the last work performed by Cork for M.B.A. Cork alleged the balance due was $39,-830.90.

Thereafter, in a letter dated July 30, 1974, M.B.A. proposed a different payment plan. This plan would have called for an immediate payment of $6,600 with weekly payments of $1,200 for two weeks to cover the required payroll for the project. Thereafter, upon receipt of the latest FHA-approved draw, M.B.A. would promptly pay Cork an additional $7,000. One-half the balance due would then be deferred until the final FHA-approved draw, and the rest of the balance due would be paid in monthly installments. Cork refused this plan. Subsequently, M.B.A. contracted the uncompleted work out to other plumbing contractors. M.B.A. in its counterclaim, claims the excess costs of $58,009.27 caused by the refusal of Cork to complete the work in accordance with the contracts.

On September 5, 1974, Cork filed a mechanic’s lien statement in the office of the Clerk of the Circuit Court of St. Louis County in the amount of $39,830.90, pursuant to § 429.010 et seq., RSMo. 1969. Thereafter, on October 4, 1974, Cork filed suit in the Circuit Court of St. Louis County to enforce its mechanic’s lien.

On June 30, 1975, M.B.A. filed a petition for arrangement under Chapter XI in the United States District Court of the Eastern District of Missouri. Subsequently, on November 25, 1975, Cork and M.B.A. entered into an agreement whereby any allowances given Cork in the Chapter XI proceeding would be without prejudice to the rights of Cork or M.B.A. and would not be deemed res judicata in the mechanic’s lien litigation. Further, pursuant to Rule ll-44(d) of the Bankruptcy Act, Cork prayed for relief from the stay that had been issued by the Bankruptcy Court so that Cork could proceed in the mechanic’s lien suit. Such relief was granted on October 17, 1975, by order of the Bankruptcy Court in which Cork was allowed to enforce its lien. However, Cork was limited to seeking a finding of indebtedness against M.B.A. and obtaining satisfaction through execution upon the subject improved real property, rather than enforcing a money judgment against M.B.A. On December 15, 1975, M.B.A. was discharged in bankruptcy. Cork received an allowance of $6,329.63.

After a trial in the circuit court without a jury, a judgment was entered in favor of Cork in the amount of $38,522.90. This amount represented the value of labor and materials supplied by Cork to M.B.A. which were incorporated into the real property, plus interest, the total of which was reduced by the amount which Cork received in the Chapter XI proceeding ($6,329.63). In accord with the Bankruptcy Court order, the trial court’s judgment was limited to satisfaction through execution upon the subject real property. A personal money judgment was not given.

Appellants first contend that the trial court erred in imposing a mechanic’s lien because the Cork account had been merged and extinguished by the allowance given in M.B.A.’s Chapter XI proceedings.

Appellants rely on Wycoff v. Epworth Hotel Construction & Real Estate Co., 146 Mo.App. 554, 125 S.W. 550 (1910). In Wy-coff the plaintiff performed certain work on the construction of a project. Before the lien time had expired defendant made a voluntary assignment for the benefit of creditors under the Missouri statute. In the assignment proceedings Wycoff presented his demand to the assignee and was given judgment. Subsequent thereto, Wycoff filed a suit to enforce same in the Circuit Court of St. Louis County. The trial court held against Wycoff and was sustained on appeal. This court held:

“Our statute concerning mechanics’ liens . contemplates that proceedings to enforce such liens shall be founded on the account as to materials or labor furnished . . . . In view of these provisions it has been frequently ruled by the courts of this state that, where the plaintiff has merged his lien account in a judgment, given either by a court of law or an assignee for the benefit of creditors of the original owner or contractor, he is thereby precluded from thereafter employing the same as a basis for the purpose of enforcing a mechanic’s lien. Although the indebtedness may continue to exist by virtue of the judgment which is unpaid, the account, which in contemplation of the lien statutes must be the basis of all proceedings ... is extinguished by being merged in the judgment.
⅜ ⅜ * ‡ ⅜ *
Under these authorities the plaintiff, by voluntarily presenting his demand and obtaining its allowance before the assign-ee, precluded and forfeited his right to thereafter enforce a lien in a suit on the account, . . . Wycoff, supra, 125 S.W. at 551-552. (Emphasis added.)

Although Wycoff did not involve the allowance of a claim in bankruptcy, it has been held that an arrangement confirmed by a Bankruptcy Court has the effect of a judgment rendered by the district court. Miller v. Meinhard-Commercial Corporation, 462 F.2d 358 (5th Cir. 1972).

In attempting to apply Wycoff, appellants would have us overlook the peculiar circumstances of this case. Cork filed suit to enforce its mechanic’s lien on October 4, 1974; thereafter responsive pleadings were filed by the appellants. In June, 1975, M.B.A. filed a petition for arrangement under Chapter XI of the Bankruptcy Act. On October 17,1975, pursuant to Rule ll-44(d) of the Bankruptcy Act, the Bankruptcy Court made the following order:

“It is ordered that authority be, and is hereby granted, that all lien claimants be allowed to proceed in the suit as aforede-scribed in order that all such claimants may enforce their mechanic’s liens against the property described in the petition; provided, however, that such lien claimants be, and they are hereby limited, to seeking a finding of indebtedness as to the debtor herein, and they are hereby restrained and enjoined from enforcing as against the debtor any monetary judgment or decree they may obtain in said proceeding other than by the filing of the claim against the debtor’s estate herein

The record further shows that an agreement was entered into on November 25, 1975, between Cork and M.B.A., whereby it was agreed that Cork’s claim of $42,164.23 would be allowed “without prejudice to the rights of Cork or MBA. . . .’’in the mechanic’s lien suit and that the allowance of the claim would not be deemed as res judicata.

The parties stipulated that, pursuant to an order of the Bankruptcy Court, Cork had received payment from M.B.A. in the sum of $6,329.63.

Cork’s suit to enforce its mechanic’s lien in the state court was filed prior to M.B.A.’s petition for arrangement under Chapter XI of the Bankruptcy Act. Rule 11 — 44(a) provides that a filing of a petition for an arrangement under Chapter XI automatically stays all actions to enforce a lien against the debtor’s property. Rule 11-44(d) provides, however, that the Bankruptcy Court may, upon the filing of a complaint and a showing of cause, terminate, annul modify or condition such a stay, as was done here. Both the terms of the Bankruptcy Court’s order, expressly providing that lien claimants be allowed to proceed in enforcement of their mechanic’s liens, and the arrangement between Cork and M.B.A., stipulating that the arrangement would not prejudice the rights of Cork or M.B.A. in the mechanic’s lien suit, preclude M.B.A. from now contending that the Cork account was merged in the Chapter XI allowance given Cork.

Furthermore, the doctrine of res ju-dicata is clearly inapplicable to the case. A judgment is not an adjudication as to matters which the court expressly refrains from deciding and which it directs should be litigated in another action. Record Machine & Tool Co. v. Pageman Holding Corp., 172 Cal.App.2d 164, 342 P.2d 402, 408 (1959); Cianchette v. Verrier, 155 Me. 74, 151 A.2d 502, 510 (1959), 50 C.J.S. Judgments § 711. See also Horton v. Queens County Machinery Corp., Inc., 101 Misc. 31, 166 N.Y.S. 662 (1917), aff'd. 182 App.Div. 932, 169 N.Y. Supp. 1097 (1918).

The parties stipulated that the action in the Bankruptcy Court would be without prejudice to and would not be deemed as res judicata in the mechanic’s lien suit. The Bankruptcy Court reserved for the state court the finding of indebtedness on the balance due and specifically directed that such matters should be litigated in the mechanic’s lien action. Accordingly, appellant’s first point fails.

This holding is consistent with the purpose of Missouri’s mechanic’s lien statute, which is based on the principle that those who have contributed labor and material to the improvement of property are entitled to look to the property for compensation. Putnam v. Heathman, 367 S.W.2d 823, 828 (Mo.App.1963). Consequently, the statute gives mechanics and materialmen a protected status in regard to claims against improved property in which is corporated their toil and materials. Although a construction of the statute is not required on this point, we note that, pursuant to the equitable purposes of the statute, a general policy exists in Missouri which requires the courts to uphold wherever possible the rights of laborers and materialmen to the enforcement of their claims against property into which they have put labor and materials.

While Missouri courts do not appear to have ruled on this specific issue, they have long recognized this public policy. In Holland v. Cunliff, 96 Mo.App. 67, 69 S.W. 737 (1902), the court stated:

“The fixing of a lien, however, upon the property is one of the prime objects which the statute has in view, and is not diverted from by reason either of the insolvency or of the absence of the chief debtor. If he is insolvent, the execution against him is nevertheless levied on the property charged with the lien. . These measures are designed to prevent a default of justice, and to make effective the statutory declaration that on certain facts the plaintiff ‘shall have for his work or labor done’ a lien on the real property. Rev.St. 1899, § 4203. . . . The law is to be enforced in the spirit which gave it forth.” Holland, supra, 69 S.W. at 739.

Furthermore, it has been firmly established in Missouri that the mechanic’s lien statute is to be given a highly liberalized construction so as to effectuate the beneficent purposes for which it was adopted. Henges v. Doctors’ North-Roads Building, Inc., 409 S.W.2d 489, 492 (Mo.App.1966).

The second issue raised is whether the form of the judgment rendered by the trial court is improper. Respondent brought suit under § 429.240, RSMo. 1969, praying for judgment against M.B.A. for a special judgment decreeing the mechanic’s lien. Subsequent to Cork’s obtaining personal service on M.B.A., M.B.A. filed proceedings under Chapter XI of the Federal Bankruptcy Act. Pursuant to Rule ll-44(a) of said Act, proceedings in the circuit court were stayed until such stay was terminated by the Bankruptcy Court. The conditions recited in the order of the Bankruptcy Court limited the mechanic’s lien judgment to a finding of indebtedness which could only be executed against the improved property. The circuit court found that M.B.A. was indebted to Cork in the sum of $38,522.90, granted a judgment in that amount, and ordered that said judgment be declared a mechanic’s lien against the buildings, erections, and improvements in real estate as described in the petition. The trial court’s order complies fully with the order of the Bankruptcy Court, which was made pursuant to Rule ll-44(d).

Appellant argues that in a mechanic’s lien action, where personal service is had over the debtor, no execution may be had against the subject real estate until an execution is had against the assets of the debtor, and such are found to be insufficient. Appellants cite § 429.240, RSMo 1969; and Farley Brothers v. Cammann, 43 Mo.App. 168 (Mo.App.1891) in support of this proposition.

In Hill v. Chowning, 93 Mo.App. 620, 67 5.W. 750 (1902), the court held that former § 4216 Rev.Stat.1899, which is identical to the present § 429.240, was applicable only to the situation where the debtor and owner are not one and the same person. Hill v. Chowning, supra, 67 S.W. at 751. M.B.A. was one of the owners in this case and it could be argued that Hill is controlling. However, it is unnecessary to rely on Hill due to the circumstances here. The stay order limited the action of the circuit court. To rule that failure to grant a personal judgment precludes the granting of a mechanic’s lien would, under these circumstances, make it possible for a debtor to escape the provisions of the mechanic’s lien statute by seeking jurisdiction of the Bankruptcy Act. This would be contrary to the purposes of the mechanic’s lien action and Chapter XI. Accordingly, we reject appellants’ argument in this regard.

Appellants next attack the trial court’s ruling that M.B.A. had defaulted on its agreement with Cork. Appellants argue that the trial court in its findings failed to give effect to the terms of the contract concerning payment, and that under the payment terms of the contract there was no material breach. The court found, “That as of July 16, 1974, the defendant, MBA, Inc. had failed to make payments as required for work which had been completed and had represented to the plaintiff that MBA, Inc. would be unable to make timely payment for the completed work, work in process and future work, and such conduct on the part of the defendant, MBA, Inc. constituted a breach of the aforesaid contract between plaintiff and the defendant, MBA, Inc.” The court, however, did not indicate which contract was governing. There are three contracts involved.

First, there is the August 29, 1972 contract in which payments were “to be billed as the job progresses.” Swyers testified that this phrase, according to the custom of the plumbing industry, means that a bill for a month’s work would be sent out at the end of that month, with payment due within 30 days.

The second contract involved was an agreement entered into on February 12, 1973. This agreement was a regular subcontractors form contract sent out by M.B.A. for the same work covered by the August 29, 1972 contract. The payment terms of the February 12, 1973 contract provided that:

“Monthly progress payments shall be paid by the Contractor to the Subcontractor on or about the 20th day of the month for 90 percent of all labor performed and for all materials incorporated in the work or suitably stored at the jobsite during the preceding month, and for which payment has been made by the Owner to the Contractor . . . . Payment of the full contract price, less the sum of progress payments previously made, shall be paid to the Subcontractor within thirty days after final acceptance of the project by the Owner, and upon evidence furnished by Subcontractor that all claims for labor and materials have been paid in full.”

Subsequent to this second agreement, Cork sent M.B.A. a letter dated May 22, 1973, in which Cork informed M.B.A. that, due to the delay of the starting date, Cork would only honor the contract for a period of one year, and that at the end of that period a 6½% price increase would go into effect. In a letter dated June 26, 1973, M.B.A. agreed to these modifications and authorized work to begin on the project pursuant to the August 29,1972 agreement.

The third contract involved was one entered into on May 22, 1974, for certain plumbing work in the project’s “clubhouse”. The payment terms under this agreement were the same as those terms contained in the February 12, 1973 agreement.

Appellants argue that because of the inconsistent payment terms in the August 29, 1972 and the February 12, 1973 contracts, covering the same work, the terms of the second contract should be given effect. Cork argues that they were operating under the August 29, agreement, because of M.B. A.’s June 26,1973 letter authorizing Cork to proceed pursuant to the terms of the August 29, 1972 agreement. We agree with appellants that the payment terms of the February 12 agreement govern. First, Cork had been accepting payments for only 90% of the work completed, and had allowed M.B.A. to retain 10% of the total amount. Thus, in execution, Cork had been conforming to the payment terms of the February 12,1973 agreement. Secondly, as testimony by Swyers reveals, Cork had agreed to operate under the payment terms of the February 12, 1973 agreement.

Nevertheless, there was substantial evidence to support the court’s finding of breach under the terms of either contract.

By M.B.A.’s admission, it was $2,700.00 delinquent in its payments to Cork as of July 17, 1974, which deficiency included non-payment of May invoices. Cork’s evidence indicated a debt of $39,830.90. Even assuming the proper figure to be $2,700.00, termination was justified here. Cork had been told by Frank Malone, executive vice president of M.B.A., that it could not pay June invoices and would not be able to pay for the work done in July. Malone had stated, “we don’t have the money to pay everybody.” Don Cork testified, “He wanted me to finish up the project and him pay my men every week and me hold the bill until the end of the project, . . . .” M.B.A.’s letter dated July 30, 1974, verified the fact that M.B.A. would be unable to comply with the payment terms of either contract.

As an initial basis of Cork’s refusal to complete the work, the evidence supports the finding that M.B.A. had expressly represented to Cork that it would be unable to make payments in the future in accordance with the contract. This constituted an anticipatory repudiation on the part of M.B.A. sufficient to justify Cork’s cessation of work.

As a general rule an anticipatory breach by repudiation occurs when one party to a contract repudiates it by manifesting an intention not to perform. When this manifestation takes place, the duty of the other party is terminated. Ewing v. Miller, 335 S.W.2d 154, 158 (Mo.1960); 13 Am. Jur.2d, Building and Construction Contracts, § 73. Missouri has long recognized the doctrine of anticipatory breach by repudiation. Ewing v. Miller, supra; Eddington v. Cockrell, 286 S.W. 405 (Mo.App.1926). However, an anticipatory repudiation may be shown only by the disclosure, by express statements or otherwise, of a positive intention not to perform the contract. The statements made by M.B.A. to Cork as to its intention not to honor the payment terms of the contract satisfy this requirement. There was sufficient evidence in the record to substantiate the court’s finding of an anticipatory repudiation.

Aside from the evidence of anticipatory repudiation, there was also substantial evidence to support the finding of a present material breach justifying Cork’s action, again under either contract. The contract of August 29, 1972, provided, “In case any payment is not made when due and payable the plumber may terminate his contract and the builder agrees to pay at once for all plumbing installed.” Such a clause was not in the February 12, 1973 contract. However, in the absence of such a clause, the failure to pay an installment in a construction contract can nevertheless constitute a material or substantial breach justifying termination, depending on the circumstances of each particular case. Appellants argue that M.B.A.’s failure to pay when due did not possess “sufficient gravity” to discharge Cork from its duty of performance. We disagree.

Because of the nature of construction contracts and the contractor’s need for funds to meet expenses and proceed with construction, courts have distinguished construction contracts from other installment contracts with respect to the subcontractor’s right to terminate for non-payment of installments. This judicial sentiment is expressed in Brady Brick & Supply Co. v. Lotito, 43 Ill.App.3d 69, 1 Ill.Dec. 844, 848, 356 N.E.2d 1126, 1130 (1976):

“Building and construction contracts frequently provide for partial payments to be made to the contractor as the work progresses, either periodically or upon completion of specified stages of the work and like any other contract may be rescinded for default in performance. The failure to pay an installment of the contract price as provided in a building or construction contract is a substantial breach of the contract and gives the contractor the right to consider the contract at an end, to a cease work, and to recover the value of the work already performed.” Brady Brick & Supply Co., supra, 43 Ill.App.3d at 1130, 1 Ill.Dec. at 848, 356 N.E.2d at 1130.

See also 13 Am.Jur.2d, Building and Construction Contracts, § 102; Bean v. Miller, 69 Mo. 384 (Mo.1879).

We recognize that the facts in every construction contract might not warrant a termination upon failure to pay an installment, but the present facts, particularly the repeated failure to keep payments current coupled with M.B.A.’s statements about future payments, permit such a resolution. We must consider the effect of delays on the builder’s finances, and “[s]ince the builder’s risks depend largely upon the financial resources of the debtor, ... a non-payment by an obligor who is of doubtful solvency ... or who accompanies his non-payment by words of near-repudiation is almost certain to be held a vital breach.” (Emphasis added.) 3A Corbin on Contracts, § 692. The evidence supported the propriety of the termination by Cork based upon a present material breach.

Appellants raise several additional arguments challenging the trial court’s finding of material breach, however, none of these is persuasive.

Appellants argue that M.B.A. did not breach the contract because payment by the owner to the general contractor is a condition precedent to the duty of payment by the general contractor to the subcontractor. Here, appellants argue that M.B.A. was the general contractor, and not the owner, and therefore, M.B.A. had no duty to pay Cork until it had received payment from the owner. Bloom, president and major stockholder of M.B.A. testified that M.B.A. had an ownership interest in the project from its inception in 1972, when M.B.A. had a 50% interest in the project with Grand Glaize Village Co., until M.B.A. sold its interests in the project in March of 1976. M.B.A. was both owner and general contractor. Due to this uncontroverted testimony, we can only reject appellants’ argument.

Appellants next argue that there was no breach on the part of M.B.A. because the amount which was found to be owed to Cork included certain “extras” which were unauthorized. An “extra” is certain additional piece work which arises occasionally during construction, which is done pursuant to oral requests by the owner or contractor, and which is not covered by a written contract.

According to our standard of review as set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.1976), there appears substantial evidence to support the trial court’s finding that the “extras” were authorized. Testimony of Donald Cork, Willard Swyers, and Cork foremen Clarence Curtis and Fred Richter demonstrated that M.B.A. had, on numerous occasions, requested this additional work and had authorized the work as “extras” to the contract. In addition, invoices for the “extras” were billed to M.B.A. and were paid by M.B.A. with no protest ever being lodged. Accordingly this argument fails.

The final argument raised under this point is that M.B.A. could not have breached the contract because, under § 400.2-609, RSMo 1969, adequate assurances were given to Cork that payment would be made, and because of such assurances Cork had no right to repudiate the contract. Section 400.2-609 provides a remedy for a party to a contract for the sale of goods when that party has reasonable grounds to suspect that the other party will not perform. In such a situation that party, having reasonable grounds for insecurity in the performance by the other party, may make a written demand for adequate assurances. After receipt of such a justified written demand, adequate assurances must be given within 30 days.

Section 400.2-102, RSMo 1969 limits the applicability of § 400.2-609 to “transaction in goods”. Therefore, the initial question to be resolved here is whether a plumbing construction contract, which includes both labor and materials, is a “transaction in goods”. We hold that such a contract is not such a transaction, and hence, § 400.2-609 is inapplicable.

This question, although it appears to be one of first impression in Missouri, has been resolved in many other jurisdictions. The test which has been generally applied in such a situation is, granting that goods and services are mixed into the contract, whether their predominant purpose is the rendition of service, with goods incidentally involved, or is a transaction of sale, with labor incidentally involved. Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir. 1974); Lincoln Pulp & Paper Co., Inc. v. Dravo Corp., 436 F.Supp. 262, 275 (N.D.Me.1977); Mingledorff’s, Inc. v. Hicks, 133 Ga.App. 27, 209 S.E.2d 661, 662 (Ga.App.1974); DeMatteo v. White, 233 Pa.Super. 339, 336 A.2d 355, 358 (1975).

Applying this test presently, we view the contract at bar as one for the construction of a plumbing system, rather than one for the sale of goods as recognized by the Uniform Commercial Code. Cork took specific materials and apparatus, manufactured by various dealers, and assembled and connected them into a completed plumbing system. In the construction of such a system, the labor predominates, with the materials being merely an incident thereto. We hold that § 400.2-609 is inapplicable. Due to this ruling, we need not resolve whether the assurances given to Cork, in the form of a modified payment plan, were in fact adequate. Accordingly we reject appellants’ arguments.

We have determined that M.B.A. breached its contract with Cork, and that Cork was justified in terminating. Accordingly, we need not consider any further issues raised by appellants concerning their counterclaim.

Appellants next contend that the court erred in awarding a judgment imposing a mechanic’s lien upon the real estate because the account was not a “just and true account” as required by § 429.080, RSMo 1969. The contention is made that since the account did not comply with the statute, Cork is not entitled to a mechanic’s lien.

Appellants did not raise this contention during the trial or in their motion for a new trial. They did not object to the admission of the lien statement; in fact, the appellants stipulated “that all the work, labor and materials, that they have set out in their lien claim actually went into the construction of the project known as the Grand Glaize Apartments . . . They further stipulated “that the prices charged for the items and material that went into the buildings were all reasonable and that the prices were the accurate prices at the time reflected in the lien itself, and in addition to that, all the items put into the building and all the material and labor were done in a good workmanlike manner with one exception . . . .” As to Cork’s mechanic’s lien claim the stipulation was that the “only dispute is whether all the extra items on the bill of invoices were, in fact extra items or were to be included in the original contract.” Cork’s lien statement included a 14 page description of all work performed and materials provided.

The legislative purpose of requiring the filing of a “just and true account” is so that the land owners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building, whether they were lienable items, and whether the amount charged is proper. Wadsworth Homes, Inc. v. Woodridge Corporation, 358 S.W.2d 288, 291 (Mo.App.1962); J. R. Meade Company v. Forward Construction Co., 526 S.W.2d 21, 27 (Mo.App.1975). The lien statement in this case satisfied this legislative purpose, and accordingly we reject this point.

The appellants finally claim that the court erred in its inclusion of interest and in its award of costs against M.B.A., Inc. M.B.A. argues that the state court should not have included interest in the judgment, because the subject matter of the action involved a bankruptcy which is a matter within the jurisdiction of the federal courts.

The trial court, in a mechanic’s lien action, may render judgment for the amount claimed in the demand, together with interests and costs. Section 429.210, RSMo 1969; Mid-West Engineering & Const. Co. v. Campagna, 421 S.W.2d 229, 232 (Mo.1967). The debt involved in this case continued, although execution would be limited to the imposition of a mechanic’s lien. The interest granted is considered an integral part of this continuing debt. Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 908, 11 L.Ed.2d 772 (1964). Furthermore, this is not a situation where the interest is being imposed upon the bankrupt’s estate, resulting in unfairness as between competing creditors. Id. at 362, 84 S.Ct. 906. The interest is being awarded only as part of the mechanic’s lien. We find that the circuit court computed the interest in the manner approved in Mid-West Engineering & Const. Co. and that the allowance of interest was not contrary to the order of the Bankruptcy Court, wherein the Court restricted Cork to “seeking or finding of indebtedness as to the debtor herein ...”

As to the imposition of court costs, the circuit court did not declare the costs to be a lien on the property, although the statute provides that it could do so. Rather the court exercised its discretion in assessing the costs against M.B.A. personally, which was clearly proper under the circumstances. Cork and M.B.A. had stipulated that the mechanic’s lien action would be pursued in the state court and had provided for the counterclaim by M.B.A. This arrangement was approved by the Bankruptcy Court, and pursuant to that arrangement M.B.A. filed a counterclaim. M.B.A.’s petition represented more than simply a defense to the mechanic’s lien action but rather constituted an affirmative claim against Cork. M.B.A. was pursuing its own cause of action against Cork. The assessment of the court costs against M.B.A. alone was therefore proper in this case and not inconsistent with either Missouri law or the Bankruptcy Court.

The judgment of the trial court is affirmed.

STEWART, concur. P. J., and STEPHAN, J.,

      . This is now § 426.010 et seq., RSMo. 1969.

      . It must be noted here that the agreement between the parties, and the Bankruptcy Court order (made pursuant to Rule ll — 44(d)) are consistent with proceedings under Chapter XI of the Bankruptcy Act. Under Chapter XI, a debtor, whether insolvent in the usual bankruptcy sense or solvent but unable to pay his debts as they mature, may, while remaining in business with court approval, effect a settlement or extension of his unsecured debts. Only unsecured debts may be settled, satisfied or extended in the Chapter XI case. However, under Rule 11 — 44, secured creditors and lien holders are affected, as proceedings to enforce liens are automatically stayed during the pend-ency of the Chapter XI case.

      . See Herrman v. Daffin, 302 S.W.2d 313, 316 (Mo.App.1957); Johnson v. Brill, 295 S.W. 558, 562 (Mo.1927).

      . Other jurisdictions have stated the same public policy. See Geis Irr. Co. of Kansas, Inc. v. Satanta Feed Yards, Inc., 214 Kan. 373, 521 P.2d 272 (1974); Mullins v. Noland Co., 406 F.Supp. 206 (N.D.Ga.19757; Eberle v. Drennan, 40 Okl. 59, 136 P. 162 (1913); Chickasaw Hotel Co. v. C.B. Barker Const. Co., 135 Tenn. 305, 186 S.W. 115 (1916).

      . Holland involves a factual situation in which the debtor-owner was released in bankruptcy after the creditor-contractor had filed his mechanic’s lien suit. The court held that this lien was not released by the discharge in bankruptcy; however, the court resolved that the lien was not discharged because a lien was not a “legal proceeding” within the meaning of the Bankruptcy Law of 1898. Such is not the case under the present Bankruptcy Act, and therefore, Holland would be inapplicable to the present situation. A second distinguishing factor is that in Holland an allowance was not given to the contractor, as was given presently. It also is not clear in Holland whether the contractor had even joined in the bankruptcy proceedings as a general creditor. We feel, however, that Holland does stand for the stated public policy.

      . The same language is found in § 429.010, RSMo. 1969.

      . § 429.240 Judgment on personal service.

      When the debtor has been served with summons according to law, or appears to the action without service, the judgment, if for the plaintiff, shall be against such debtor as in ordinary cases, with the addition that if no sufficient property of the debtor can be found to satisfy such judgment and costs of suit, then the residue thereof be levied as provided in section 429.230.

      . The failure of M.B.A. to pay was in no way based on default in work on the part of Cork.

      . We cite Corbin for the principles expressed rather than for exact correlation to our facts. The reference to “words of near-repudiation” is not to be interpreted as contradicting our finding that M.B.A. had anticipatorily repudiated the contract.