author: FLANIGAN, Judge.

text:
    In re the Marriage of Camille Ann CAIN, Appellant, v. John William CAIN, Respondent.
    No. 9948.
    Missouri Court of Appeals, Springfield District.
    April 12, 1976.
    Motion for Rehearing or to Transfer Denied May 5, 1976.
    Application to Transfer Denied June 14, 1976.

      Julian J. Ossman, Myers, Webster & Perry, Webb City, for appellant.
    George G. Allen, Jr., Niewald, Risjord & Waldeck, Kansas City, Jon Dermott, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

This action for dissolution of marriage was instituted by John William Cain, petitioner below and respondent here, against his wife Camille Ann Cain, respondent below and appellant here. The parties will be referred to by their first names.

John was born in 1930. He graduated from high school, attended junior college and, in 1953, graduated from the Illinois College of Podiatry. In 1956 he commenced the practice of his profession in Joplin, Missouri.

On September 27, 1958, John purchased, and in his own name obtained the title to, a certain tract of land referred to in the record as “the farm.” To meet the purchase price of $20,000 John made a down payment of $3,500 and gave his note for $16,500 secured by a mortgage on the farm. The note was payable in monthly installments of $141.19, and John made seven such payments prior to the marriage.

Several months after he purchased the farm, John met and courted Camille. They were married on May 16, 1959, and they did not separate until March 10, 1974. They lived on the farm until 1967.

Camille was a junior college graduate, having had “business type courses, typing and shorthand.” Prior to the marriage she worked in a physician’s office as a secretary-receptionist and she continued that employment until shortly before the birth of the first child, Steven, on July 29, 1960. Two other children were born to the marriage, Rachel on March 7, 1962, and Janet on February 23, 1965.

John’s practice was a prosperous one and by 1973 it was operated as a professional corporation of which John was sole officer. His salary for that year was $74,060.

During the marriage eight more tracts of land were purchased. Six were purchased in the joint names of John and Camille and are still mortgaged. Two were purchased in John’s name alone and one of them is still mortgaged.

The judgment of the trial court dissolved the marriage, awarded custody of Rachel and Janet to Camille and Steven to John, prescribed visitation rights, set apart the farm to John, divided the marital property (including the other tracts of real estate and certain personal property), required John to pay Camille maintenance and to pay her support for the two children in her custody, and awarded Camille suit money and attorney’s fees. The particulars of the judgment, so far as relevant to the points on appeal, will be set forth later.

Camille’s three appellate contentions, in summary form, are: first, that the trial court erred in finding that the farm was not “marital property”; second, that the trial court erred in the manner in which it divided the marital property; third, that the trial court’s award of “maintenance” to Camille was inadequate.

In this court-tried case the mode of appellate review is governed by Rule 73.01, sub-sec. 3, V.A.M.R. See also In Re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975).

IS THE FARM “MARITAL PROPERTY?”

This action was filed on March 25, 1974, and accordingly it is subject to the provisions of § 452.300 to 452.415 V.A.M.S. These statutes, which have been referred to as the “Divorce Reform Act” and “Modified No Fault Divorce Reform,” Claunch v. Claunch, 525 S.W.2d 788, 790 (Mo.App.1975), will be referred to in this opinion as “the act.”

Section 452.330 V.A.M.S. provides in part:

“1. In a proceeding for . . . dissolution of marriage . . . the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors, including . . .” The statute then sets forth four factors. The trial court held that the farm is not “marital property” and this court agrees.

For purposes of the act only, § 452.-330, subsec. 2, defines “marital property” to mean “all property acquired by either spouse subsequent to the marriage” with five exceptions. If the farm was not “acquired by either spouse subsequent to the marriage,” it does not meet the basic definition of “marital property” and, in that event, the applicability of any of the five exceptions need not be explored.

At p. 790 of Claunch it is said:

“Although, as indicated, the act defines ‘marital property,’ it does not define ‘property.’ But § 1.020 provides, in pertinent part, ‘As used in the statutory laws of this state, unless otherwise specifically provided or unless plainly repugnant to the intent of the legislature or to the context thereof:

(8) “Personal property” includes money, goods, chattels, things in action and evidence of debt; .

(II) “Property” includes real and personal property;

(12) “Real Property” or “premises” or “real estate” or “lands” is coextensive with lands, tenements and hereditaments; . . ’

It should be noted that § 452.330, in requiring the court to “set apart to each spouse his property,” does not define “his property.” Obviously the farm was “property” but was it “John’s property” within the meaning of the statute?

Camille points out that during the marriage 187 monthly payments of $141.19 each were made on the loan on the farm and that a small balance remains due. Camille says that these payments were made with money which was itself “marital property.” Camille argues that “whether property is marital or non-marital should depend upon the source of the funds used to acquire the property, not upon the time at which bare legal title was acquired.” Camille claims that prior to the marriage John paid $4,480.83 toward the purchase of the farm; that during the marriage “marital funds” (Camille’s term) in the amount of $26,402.53 were applied to the purchase price; that, accordingly, marital funds have paid for (approximately) 85 percent of the interest in the farm and John’s separate funds have paid for 15 percent of that interest. Thus, Camille says the trial court should have awarded John 15 percent of the interest in the farm and divided the remaining 85 percent equally between John and Camille.

Section 452.330 does not use the term “separate property” to describe “his property,” i. e., that which the court is required to “set apart to each spouse.” However, the term has been used in a leading article on the “property provisions” of the act and seems peculiarly apt.

Accordingly the inquiry is, was the farm John’s separate property and, if so, was its status altered or affected by the fact that it was subject to a mortgage or by the additional fact that some of the payments on the mortgage were made with money which itself was “marital property”?

In Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), a dissolution proceeding, Mr. Bowers, prior to the marriage, acquired some land which was referred to as the “Lombard property.” Title was in his name alone. At the time of the trial there was a mortgage on the Lombard property, although the opinion does not reflect whether that mortgage antedated the marriage, nor does it show the source of the mortgage payments.

The court said: “[I]t was not disputed that the Lombard property was purchased and titled in the name of Mr. Bowers prior to his marriage with the appellant and remained so titled after the marriage. The Lombard property, therefore, is not marital property, and should be set apart to Mr. Bowers. The implication of subsection 2 of § 452.330 is clear that property acquired prior to, rather than subsequent to, the marriage and maintained and treated as such after the marriage is not marital property. That is what Mr. Bowers has done with the Lombard property, and that property is to be considered as his separate property and must be ‘set apart’ to him.”

Conrad, accordingly, supports the proposition that the fact that the farm was mortgaged is not alone sufficient to remove it from the classification of separate property. It must be conceded that if John had purchased the farm outright and had remained single, the farm was “his property.” Before he met Camille he had the legal title to it but it was an encumbered title. Did his status as a mortgagor render him any less the owner of the farm?

“A mortgagor in possession is generally held to be the owner, but not after foreclosure and sale.” 63 Am.Jur.2d Property § 34, p. 319. “[A] mortgage is a mere lien on real estate.” Kline v. McElroy, 296 S.W.2d 664, 665[1] (Mo.App.1956).

“The modern doctrine is well established that a mortgage is but a security for the payment of the debt or the discharge of the engagement for which it was originally given; and until the mortgagee enters for breach of the conditions, and in many respects until final foreclosure of the mortgage, the mortgagor continues the owner of the estate, and has a right to lease, sell, and in every respect to deal with the mortgaged premises as the owner, so long as he is permitted to remain in possession.” (Emphasis added) Benton Land Co. v. Zeitler, 182 Mo. 251, 81 S.W. 193, 197 (1904).

The following language appears in Tiffany, The Law of Real Property, 3d Ed. Vol. 5, § 1380, p. 232: “In other states the view that the mortgagee has the legal title is entirely superseded, both at law and in equity, by the view which has always prevailed in equity, that he has merely a lien to secure his debt.” Citing Benton, Tiffany says, “This view prevails in Missouri.”

At § 1411, p. 296 it is said: “Even in jurisdictions in which the title theory of a mortgage is adopted, the mortgagor is for most purposes regarded as the substantial owner of the land. In jurisdictions in which the lien theory is adopted, there can obviously be no question that the mortgagor is the owner.” (Emphasis added) Additional authorities appear below.

This court concludes that the fact that the farm was subject to a mortgage does not per se alter or affect its status as John’s separate property if such was its status absent the mortgage.

John argues that at least some of the payments on the mortgage were made from rent derived from the farm. John states “since the farm was separate property, the income derived from it was also separate property.” This assertion is inconsistent with the Commissioners’ Note to § 307 of the Uniform Marriage and Divorce Act, on which § 452.330 is somewhat modeled. Claunch, supra, 525 S.W.2d at p. 791.

Section 452.330, subsection 2(5) excludes from marital property “the increase in value of property acquired prior to the marriage.” The counterpart is subsection (b)(5) of § 307 which excludes from marital property “the increase in value of property acquired before the marriage.” The latter language in the Commissioners’ Notes receives this comment: “The phrase ‘increase in value’ used in subsection (b)(5) is not intended to cover the income from property acquired prior to the marriage. Such income is marital property,”

This court concludes, however, that the fact that some of the payments on the mortgage were made with money which itself was marital property does not alter or affect the status of the farm as John’s separate property. The following authorities lead to this conclusion.

“Property is classified as separate or community when it is acquired. As used in this connection the word ‘acquired’ contemplates inception of title.” 15 Am.Jur.2d Community Property § 22, p. 836. “The status of the property as community or separate is fixed as of the time that title is acquired.” Tiffany, The Law of Real Property, 3d Ed., Vol. 2, § 439, p. 241. “When property is purchased before marriage and the payments are completed afterward with community funds, the property usually is found to be separate and the community reimbursed for its outlay.” Powell, Law of Real Property, Vol. 4A, § 624.4, p. 735.

The following language appears in 41 C.J.S. Husband and Wife § 483, p. 1023: “After property purchased on credit or with borrowed funds has acquired the status of separate property of one of the spouses at the time of purchase, its status remains such regardless of the nature of the funds which thereafter satisfy the obligation, whether community funds or separate funds of the other spouse.”

Other authorities support the proposition that once property acquires the status of separate property, it does not lose that status solely because marital funds are devoted to the reduction or elimination of an encumbrance.

It is true that some of the foregoing authorities, and some of those cited in footnote 5, are consistent with the following proposition expressed in 41 C.J.S. Husband and Wife § 510a(4), p. 1080: “Where property is purchased with community and separate funds, and the acquisition nevertheless is held to belong to the separate estate, the community has a claim against the separate estate for the amount of its contribution to the purchase price, and such a claim is a charge or lien on the property so acquired.”

This court confines its holding to the fact that the farm was and is John’s separate property and the trial court properly treated it as such and set it apart to John. In view of the presence and size of the other assets of the parties, making it possible for this court to divide the marital property and to grant maintenance without imposing on the farm a lien or charge in favor of Camille, the legality of such an imposition need not be explored.

In defining “marital property,” § 452.330, subsection 2, states that, for purposes of the act only, the term means “all property acquired, by either spouse subsequent to the marriage,” with five exceptions. One of those exceptions is “property acquired in exchange for property acquired prior to the marriage.” Another exception is “the increase in value of property acquired prior to the marriage.” It seems clear, then, that property acquired prior to the marriage is not marital property. Obviously anything acquired prior to the marriage was not acquired after it, at least if acquisition occurs at one specific time and is not the gradual result of a continuing process. Camille’s argument is, in essence, that each of the post-marriage mortgage payments effected an acquisition. This contention is rejected.

If acquisition is not accomplished until full payment of the purchase price and the removal of the encumbrance, many, if not most, marriages would have little land which would qualify as marital property. Financial hardship is a major cause of marital breakups and people in low economic circumstances usually have a mortgage on their home. If the presence of that mortgage meant that the home had not been “acquired” within the meaning of § 452.330, subsection 2, it would not constitute “marital property” and the court would have no power to divide it. Such a result would strike at the very vitals of the act and would, for many marriages, place the principal asset beyond the court’s power to divide.

The word “acquire” is thus defined in Webster’s Third International Dictionary: “To come into possession, control or power of disposal of.” The American Heritage Dictionary of the English Language gives this definition: “To gain possession of.” In Chief Freight Lines Co. v. Industrial Commission, 366 S.W.2d 48 (Mo.App.1963) it is said that the word “acquire” is one of very broad meaning and includes “to gain by any means; to get as one’s own.” There it is said to be synonymous with “obtain” and “procure.”

In Denver Dept. of Welfare v. Gomer, 141 Colo. 65, 346 P.2d 1016 (1955) the crucial issue, for purposes of entitlement to welfare, was when one Gomer “acquired” certain land. A contention was made that the acquisition of the land by Gomer did not take place until the mortgage on it had been paid. The court rejected the contention and said at p. 1017: “It would be a strained construction, indeed, to declare as a proposition of law that when one gets out of debt he acquires or obtains possession of property, moneys or credit. At every stage of the twenty years in which these parties were intermittently on relief the debt on the house was being reduced. It would be difficult to ascertain at what point in the twenty years this ‘acquisition of property’ started or became a reality to these people.”

It is indisputable that John came into possession of the farm prior to the marriage. He had the control of it. Prior to this proceeding it was his to improve, lease, sell, subdivide, devise, and even to further encumber, subject of course to the lien.

This court holds that John acquired the farm on September 27, 1958, that it then became John’s separate property, and that neither the mortgaging of it by John nor the use of marital property, in the form of money, to reduce the balance of the loan, removed the farm from its classification as “his property” as that term is used in § 452.330, subsection 1.

Accordingly, the trial court properly set apart the farm to John but, as will be seen, the presence of the mortgage and the sources and degree of its partial discharge are facts which influence the manner in which the marital property is divided under § 452.330.

DID THE TRIAL COURT PROPERLY DIVIDE THE MARITAL PROPERTY?

With the exception of the farm, the judgment of the trial court treated all the assets as marital property, and neither John nor Camille complains of that classification.

The trial court divided the marital property as follows:

Value Mortgage Equity Monthly Rental Income

Tract A $35,000.00 $6,442.00 $28,558.00 $125.00

Tract B 29,750.00 975.00 28,775.00 0

Tract E 25,000.00 967.00 24,033.00 150.00

Tract F 9,000.00 0 9,000.00 0

Total Equity $90,366.00

Personal Property

Cadillac automobile 7,000.00

Life insurance policies

(less policy loan) 6,951.28

100 Shares Joplin Podiatry, Inc. 59,735.01

Total Personal Property $73,686.29

Total to John $164,052.29

Value Mortgage Equity Monthly Rental Income

Tract C $65,000.00 $22,309.00 $42,691.00 0

Tract D 10,000.00 1,569.00 8,431.00 0

Tract G 45,000.00 27,702.00 17,298.00 102.00

Tract H 3,419.00 2,612.00 807.00 0

Total Equity $69,227.00

Personal Property

Pontiac automobile 7,000.00

1 Share Twin Hills Golf & Country Club 500.00

Kansas City Airport Bonds 4,966.98

United Investment Plan Shares 782.21

Household furnishings 3,174.00

Total Personal Property $16,423.19

Total to Camille $85,650.19

In dividing the marital property “in such proportions as the court deems just,” § 452.-330 (subsec. 1), the trial court must consider “all relevant factors including:

(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(2) The, value of the property set apart to each spouse;

(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and

(4) The conduct of the parties during the marriage.”

The application of the factors mentioned in the statute “cannot be accomplished by the utilization of a mathematical formula.” Claunch v. Claunch, 525 S.W.2d 788, 792[5] (Mo.App.1975).

Factors (1) and (4) will be considered together.

The legislature did not have the temerity to define “homemaker,” and properly so. Black’s Law Dictionary (Rev. 4th Ed.) never heard of the word nor, at this writing, has C.J.S. According to the American Heritage Dictionary a homemaker is “a person who manages a household, especially a housewife.” Webster’s circular definition is “one that makes a home.” But the word is one of infinite variety and any person presumptuous enough to trace its ambit probably has not had the privilege of marrying one. It is doubtful that the role may not be shared, at least in the usual household.

But, at least primarily, John was the breadwinner and Camille was the housewife and mother. If due respect is accorded to these roles, no significant disparity in their respective contributions to the acquisition of the marital property is disclosed.

The evidence concerning conduct had the traditional conflicts. The testimony of John’s mother, at least in part, was critical of her daughter-in-law. Camille countered by producing a neighbor whose testimony, at least in part, was critical of John. The neighbor was the wife of one of Camille’s attorneys. But most of the testimony concerning conduct came from the parties.

Camille’s evidence showed that John did very little work around the house. At least twice John beat Camille with his fists. On occasion John drinks too much. Camille, however, conceded that John was a good provider who “devotes his life to the children and the practice but the practice first.” She thought John’s behavior was, on occasion, irrational. John had accused her, falsely she says, of having an extramarital affair. There is a tacit suggestion in her evidence, denied by John, that he had a similar involvement.

John’s evidence showed that Camille was frequently uncommunicative, that she had a “terrific male hatred and regarded me and our sex life as dirty.” Camille did not entertain as often as John thought she should but he, with some frequency, brought business associates to the home for dinner “on my orders.” He says that Camille likes to socialize, play golf and tennis and work at the historical society. He admitted, however, that he had no objection to Camille’s not seeking outside employment after the children were born. “She had the children to raise and she had to be a wife and it was a mutual understanding.”

The family had an excellent income and spent much of it. It is not uncommon for wives of affluent men to refrain from outside work and to engage in civic and country club activities. Whatever the problems were which led to the downfall of the marriage, it is manifest that financial hardship is not among them. Perhaps there was too much financial success. In any event, neither of the spouses emerges as the hero or the villain of this ill-fated union.

With regard to factor (2), the trial court, as has been seen, set apart the farm to John. At the time of the trial the balance due on the mortgage on the farm was about $5,000.

The value of the farm has dramatically increased since its acquisition in 1958. It is now bounded on one side by Joplin’s major shopping center and on the other by Missouri Southern State College. Neither side invoked Rule 73 to request findings of fact and the trial court made no specific finding of the farm’s value. The court did find that the appreciation in value since date of acquisition was “due to the development of adjacent property and not to any efforts made by” John or Camille. No improvements have been added since John acquired it.

Since the farm was acquired by John prior to the marriage, neither it (§ 452.330, subsec. 2) nor its increase in value (§ 452.330, subsec. 2(5)) is “marital property,” but under § 452.330, subsec. 1(2), its present value is one of the factors which must be considered when the court divides the marital property.

The testimony of Camille’s real estate expert, Moore, was that the farm (which contains 78.2 acres) has a value of approximately $565,000. The mortgage would reduce that figure to approximately $560,000. Moore also made appraisals of the eight marital property tracts.

John’s real estate expert, Kelly, gave his appraisals of the eight marital property tracts and they were in general accord with those of Moore. However, Kelly did not appraise the farm and gave no testimony on its value. John’s attorney, explaining that omission, said “we did not have [the farm] appraised because of the statutory exemption being owned prior to the marriage.” The explanation is a lame one because the pleadings of both parties requested division of the marital property and, as indicated above, the value of the farm is a specific statutory factor.

John’s appellate brief mentions and the record shows that one or two years before the trial John received a “lukewarm offer of $117,300 for the farm at a time when he was demanding $273,700. Significantly John himself, although legally qualified to do so, State v. Northeast Building Co., 421 S.W.2d 297, 301[3] (Mo.1967), offered no opinion with regard to the present value of the farm. Nor did John make any attempt to rebut the testimony of Moore on the point.

It is also true that a substantial portion of the mortgage indebtedness on the farm has been paid with money constituting marital property. This is a “relevant factor” which (including the four enumerated in § 452.330, subsec. 1) this court has considered in dividing the marital property.

Clearly the value of the farm, as one of the relevant factors, dictates that Camille is entitled to a far greater share of the marital property than she would be if it were not in the picture.

Germane to factor (3) is that the trial court awarded the family home (Tract C) to Camille and gave her custody of Rachel and Janet.

At the time of the decree Camille was not employed. Her economic circumstances are far less desirable than those of John. As its value indicates, and as the family financial history would suggest, the family home is a nice one. The monthly mortgage payments on it are $193.50. Also awarded to Camille were Tracts D, G, and H, but only one of them produces rent and all are mortgaged.

John and Camille’s joint 1973 federal income tax return shows an adjusted gross income of $76,680, of which $74,060 was John’s salary paid him by his professional corporation. Though income tax returns for the years 1972, 1971, and 1970 were not offered, the 1973 return shows a taxable income for those years of $52,993, $81,273, and $79,241.

But John claims that his salary for the first six months of 1974 ($20,000) has decreased substantially from what it was during the same period of 1973 ($30,000). John explains the decrease by claiming that Medicare suspended payments to him because “I made too much money last year” and “they cut you off during the investigation.” He admitted, however, that some of the Medicare money would in time be paid. Similar difficulties with similar prospects of ultimate collection were encountered with Blue Shield and a local industry. He also says that the gas shortage reduced the number of his patients, as did the appearance of two new podiatrists in the area.

John’s office is open only four days a week. During the first six months of 1974 he missed eleven days because of illness, spent a week in Montana, two weeks in Canada, and made other shorter trips.

Factor (3) favors Camille.

This court concludes that the trial court’s division of the marital property is clearly erroneous. Accordingly it is modified as follows:

In addition to the property heretofore awarded Camille by the trial court, she is hereby awarded Tract A, Tract E, and Tract F. In all other respects the trial court’s division of the marital property is affirmed.

Both John and Camille should be, as between themselves, relieved of any further liability on any indebtedness which is secured by a mortgage on land awarded to the other. The one receiving a tract on which such a joint loan exists will assume, as between them, the primary duty to pay and will hold the other harmless from any further liability thereon. The trial court is directed to make appropriate provision to that end.

IS THE AWARD OF MAINTENANCE ADEQUATE?

The trial court ordered John to pay Camille $75 per week per child for the support of Rachel and Janet. It granted maintenance to Camille in the sum of $700 per month for seven years, thereafter $500 per month for three years and thereafter $200 per month for two years, the maintenance to terminate at the end of twelve years or upon Camille’s earlier remarriage.

In granting maintenance the trial court found that Camille lacked “sufficient property, including marital property apportioned to [her] to provide for [her] reasonable needs” (§ 452.335, subsec. 1(1)) and further found that Camille “is unable to support [herself] through appropriate employment or is the custodian of [children] whose condition or circumstances make it appropriate that [Camille] not be required to seek employment outside the home” (§ 452.335, subsec. 1(2). This court has determined that its reapportionment of the marital property, under the facts here, does not disturb these findings.

Neither Camille nor John has complained about the “stair-stepping” aspect of the maintenance order (see In Re Marriage of Powers, 527 S.W.2d 949, 955[11-12] (Mo.App.1975)). Predictably Camille says the award is too low while John asserts its excessiveness. The seven nonexclusive “relevant factors” to be considered in setting maintenance are contained in § 452.-335, subsec. 2. Those factors are considered in their statutory sequence.

Camille’s financial resources, including her share of the marital property, have been outlined. It was her testimony that for her own reasonable needs she requires $1,464 monthly. John testified that her reasonable needs may be met with $400 to $500 a month but he admitted that he was assuming she could move to a more modest home. His itemized estimates of her needs were manifestly low, hers too high, and the trial court properly found a middle ground.

The provisions of the decree for support of the two daughters did not include “a sum for [Camille] as custodian.”

Camille is a junior college graduate, with some medical office experience, but she has not been employed for over fifteen years. In view of the ages of the two girls the trial court may have felt that no more than part time employment would be appropriate at present.

The standard established during the marriage was high and the marriage lasted approximately 15 years.

Camille’s age is not shown but she graduated from junior college in 1957. John is in his mid-forties. Camille’s “physical and emotional condition” appears normal, as does John’s.

John’s ability to meet his needs while meeting those of Camille is evident. Camille’s conduct during the marriage has been discussed.

This court, after weighing these factors, holds that the maintenance award is just and proper and the decree in that respect is affirmed.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.

      . Camille’s argument is based primarily on California authorities. See, for example, In Re Marriage of Jafeman, 29 Cal.App.3d, 244, 257, 105 Cal.Rptr. 483, 491[11, 12] (1972), where it is said: “If community funds are used to pay part of the purchase price on property acquired by one spouse prior to the marriage, the property cannot be considered wholly community for the separate and community sources of the property can be traced, (authorities cited) The community has at pro tanto interest in such property in the ratio that the payments on the purchase price made with community funds bears to the payments made with separate funds, (authorities cited) The community interest is determined by comparing the ratio of the community investment to the total separate and community investment in the property. If the fair market value has increased disproportionately to the increase in equity, the community is entitled to participate in that increase in a similar proportion, (authorities cited)” The Califomia rule has been said to be “Contrary to the rule adopted in most community property states, under which the community has only the right of reimbursement for payments made with community funds on the purchase price of property purchased by one spouse before marriage.” Forbes v. Forbes, 118 Cal.App.2d 324, 257 P.2d 721, 722 (Cal.App.1953).

        . 29 Missouri Bar Journal (Nov.-Dec. 1973) p. 508, written by Attorney Ray Fowler and Professor Joan Krauskopf.
      The following language appears in Missouri Practice, Vol. 1A § 1065.25 where there is a discussion of the act:
      “Before dividing the marital property between the spouses, the court must identify and set aside each spouse’s separate property. Thus, property acquired prior to marriage remains separate property of the spouse who owned it.”

      . “[I]n the absence of a stipulation in the mortgage to the contrary, the mortgagor is owner to all the world, and is entitled to the rents and profits until the mortgagee enters into the actual possession or takes some equivalent action.” In Re Title Guaranty Trust Co., 113 S.W.2d 1053, 1057[7] (Mo.App.1938).
      “A mortgage . . . particularly by the laws of Missouri, ‘is regarded as nothing more than a mere lien, encumbrance, or security for a debt, and passes no title or estate to the mortgagee, and gives him no right or claim to possession of the property . and the mortgagor is the real owner and the holder of legal title or mortgaged property, unless otherwise specifically provided.’ ” Park Nat. Bank v. Travelers Indem. Co., 90 F.Supp. 275, (D.C.Mo.1950).
      See 6 Mo.L.R. 200 (1941) “Real Estate Mortgage Theory in Missouri.”

      . Section 307 appears at p. 490 of Uniform Laws Annotated, Vol. 9, Master Edition.

      . “The character of purchased property, as separate or community property, is fixed at the time it is acquired, whether or not the entire purchase price is paid at the time of acquisition. If it is community property at time it is acquired, it remains community property even though the separate funds of either spouse be used to pay the purchase price debt balance or the financed part of the price. The same thing is true if it is separate property at the time it was acquired and community funds are used to pay the balance or financed part. In either case a right to reimbursement can be established by tracing funds used to pay the balances, with subrogation in some cases to rights of a seller, but the ownership of the property is not affected." (Emphasis added) Hodge v. Ellis, 268 S.W.2d 275 (Tex.Civ.App.1954) at p. 283[10],
      “Property acquired in community property states takes its status as community or separate property at the very time it is acquired, and is fixed by the manner of its acquisition. Woods v. Naimy, 9 Cir., 69 F.2d 892; Leinnewebber v. George, Tex.Civ.App., 95 S.W.2d 478; Wilson v. United States, 9 Cir., 100 F.2d 552. If property is acquired by the wife it is her separate property at that very time, and the fact that a part of the purchase money is later paid out of the community or separate estate of the other spouse does not alter such status. Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328; White v. Hebberd, Tex.Civ.App., 89 S.W.2d 482; Merritt v. Newkirk, 155 Wash. 517, 285 P. 442.” Laughlin v. Laughlin, 155 P.2d 1010 (N.M.1944) at p. 1020[12].
      See also Gapsch v. Gapsch, 76 Idaho 44, 277 P.2d 278 (1954); Gillespie v. Gillespie, 84 N.M. 618, 506 P.2d 775, 778[2, 3] (1973); Lincoln Fire Ins. Co. v. Barnes, 53 Ariz. 264, 88 P.2d 533 (1939); In Re Pugh’s Estate, 18 Wash.2d 501, 139 P.2d 698 (1943); Iredell v. Iredell, 49 Wash.2d 627, 305 P.2d 805 (1957); Orr v. Pope, 400 S.W.2d 614 (Tex.Civ.App.1966); Fisher v. Fisher, 86 Idaho 131, 383 P.2d 840, 842[2] (1963).

      . See 54 A.L.R.2d 416 (“Use of Community funds in improving, or discharging encumbrance on, separate property as grounding right to reimbursement, lien or charge.”)

      . “Where, as is true in most jurisdictions now, a mortgage is regarded both in law and equity as a mere lien, and not a conveyance of the title, the mortgagee has no right as such, either before or after default, to the possession of the property mortgaged, but the right of possession until foreclosure and sale remains in the mortgagor and those claiming under him.” 55 Am. Jur.2d Mortgages § 183, p. 310.

      . “Clearly, a husband may now convey his separate property without his wife joining in the deed.” Wilkinson v. Vaughn, 419 S.W.2d 1, 8[18] (Mo.1967).

      . The trial court’s decree did not assign specific values to the items. Though the evidence concerning values was conflicting on some items, the conflicts were not major and this court has determined the values to be as tabulated. Some inconsequential and offsetting details of the court’s division are not shown. Of course the trial court, in addition to awarding John the items shown in the table, set apart the farm to him.

      . Tract B, which is to be retained by John, is the land on which his office is situated.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Herbert Lee TROTTER, Appellant.
    No. 36764.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 13, 1976.
    Motion for Rehearing to Court En Banc or for Transfer Denied May 17, 1976.

      Preston Dean, Nanette Laughrey, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
    Graham W. LaBeaume, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant Herbert Trotter guilty of second degree murder by twice shooting Eugene Smith. The jury could not agree on punishment and the trial court sentenced Trotter to 35 years’ imprisonment.

Defendant Trotter appeals, contending error in permitting the State to cross examine its own witness, by allowing the State’s eyewitness to relate threats made against her, and the trial court’s failure to instruct on manslaughter. We relate the evidence relative to these points, all from the State’s case. The defense was an alibi.

The decedent Eugene Smith lived with Ernestine Branom, the State’s main witness. She testified that on the evening of March 2, 1974 defendant Trotter and Robert Branom, Ernestine’s brother and a co-indictee, came by the Smith home and quar-relled with him about a hat. Defendant Trotter and Robert Branom came back about midnight and when Eugene Smith opened the door, Ernestine Branom saw Trotter shoot Smith and again shoot him when he fell. Her brother, a co-indictee, was then standing behind Trotter. Also, a neighbor saw Trotter firing a pistol toward the floor. Ernestine Branom ran from the house, with Trotter pursuing, but she evaded him.

At trial Ernestine testified she had not seen a gun, that both of defendant’s hands were empty when the shots were fired. Upon a showing Ernestine’s testimony was a surprise and admittedly contrary to earlier statements made to police, the grand jury and the prosecutor, the court allowed the State to cross examine her. The State recalled Ernestine to the stand. She explained her initial false testimony about defendant not having a gun was caused by fear of defendant’s relatives then in the courtroom, they having previously threatened her. Ernestine testified she had in fact seen defendant Trotter with a gun in hand, saw him shoot Smith once, and when he fell, shoot him again.

I. Defendant now contends: “It was error for the court to declare Ernestine Branom a hostile witness. A witness may not be declared hostile unless the discrepancy is so major as to make the person a witness for the adverse side.” Defendant relies on Ernestine’s initial testimony that Trotter did not have a gun. We find there was a major discrepancy in Ernestine’s initial testimony that defendant’s hands were empty and her previous formal, out-of-court statements that Trotter held the gun in his hand. Not only did this warrant the trial court’s considering Ernestine’s initial testimony to have been untrue, the trial court could also consider that Robert Branom, the co-indictee, standing behind Trotter, was her brother. If Ernestine’s initial testimony did not show her to be hostile, it did show her to be reluctant in view of her earlier extrajudicial statements. Compare State v. Davis, 400 S.W.2d 141[7-10] (Mo.1966). The trial court’s ruling here is akin to that in State v. Rack, 318 S.W.2d 211[10-11] (Mo.1958), where the court declared: “A trial court may, within its discretion, permit cross-examination of a party’s own witness where there is a basis of surprise and where the witness is evidently friendly to the other side and has made statements contrary to his testimony at the trial. A trial court may exercise its discretion in such circumstances.”

We deny defendant’s point concerning the prosecution’s cross examination of witness Ernestine Brown.

II. Defendant challenges as hearsay the testimony of eyewitness Ernestine Branom that members of defendant’s family had put her in fear of testifying truthfully-

Recall the discrepancy between Ernestine’s initial testimony that she saw no gun and her later testimony that in fact she did see a gun in defendant’s hand when he shot Smith. In cross examining Ernestine the State sought to explain the discrepancy. Ernestine confessed when recalled that she had lied about not seeing the gun since she was frightened because defendant’s father, mother and family were then in the courtroom. The State sought to have Ernestine explain her fear. She testified that the day after the shooting defendant’s father told her she had better go to the police and “get that off his son.” Defendant’s sister told Ernestine if she didn’t do that, “we’d better leave town.” Ernestine further testified that her brother-in-law had told her defendant’s father had offered to pay $100 if she would change her account of the shooting.

We consider this testimony in the light of the trial court’s ruling that the State had a right to cross examine Ernestine about her earlier testimony, confessedly false. Her state of mind, when she first testified falsely, was relevant to her testimony as a whole. Terminal R.R. Ass’n of St. Louis v. Schmidt, 349 Mo. 890, 163 S.W.2d 772[2] (1942). That state of mind was caused by statements attributed to defendant’s father and sister. The State did not offer those statements for their intrinsic truth but as direct evidence of the statements having been made.

There is a distinction between the hearsay rule prohibiting a witness from relating another person’s statements for their intrinsic truth and a witness relating another’s ’ declarations, not for their intrinsic truth, but for the evidentiary fact, when relevant, that the statement was made.

The limited scope of the hearsay rule was noted in In Re Thomasson’s Estate, 347 Mo. 748, 148 S.W.2d 757[10] (Mo.1941), the court saying: “The [hearsay] argument, however, fails to consider the fundamental distinction between hearsay statements and extrajudicial utterances admitted not for the purpose of proving the fact therein asserted to be true, but simply because the statements themselves formed necessary links in a chain of circumstantial evidence. This distinction has been most carefully stated in Wigmore on Evidence, 3d Ed., § 1766: ‘The theory of the Hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. . It may or may not be received, according as it has any relevancy in the case.’ ” Wig-more adds: “The prohibition of the Hearsay rule, then, does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a comparatively simple matter. The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.”

For other applications of the principle see State v. Hale, 371 S.W.2d 249[7-8] (Mo.1963), Mitchell v. Robinson, 360 S.W.2d 673[3-4] (Mo.1962) and Mash v. Missouri Pacific Railroad Co., 341 S.W.2d 822[4] (Mo.1960). We deny defendant’s hearsay point.

III. Defendant contends the trial court erred in failing to instruct on manslaughter. He cites State v. Stapleton, 518 S.W.2d 292 (Mo.1975) as holding that where a trial court instructs on second degree murder it must also instruct on manslaughter. Trial of this case was on April 5,1974. Stapleton was decided January 13, 1975, simultaneously with amended Notes on Use to MAI-CR 6.06 (Murder Second Degree) and MAI-CR 6.08 (Manslaughter), expressly applicable to future homicide cases. As to this, Stapleton is to be applied prospectively. State v. Mudgett, 531 S.W.2d 275[5] (Mo.1975); State v. Eiland, 534 S.W.2d 814, 1976. We revert to the pre-Stapleton rule that a manslaughter instruction may properly be given only when warranted by the evidence. State v. Clough, 327 Mo. 700, 38 S.W.2d 36[1-2] (1931). Here there was no affirmative evidentiary basis for a manslaughter instruction.

Judgment affirmed.

DOWD and STEWART, JJ„ concur.

      . A Hornbook example: The hearsay rule is inapplicable in an insanity hearing where a witness may relate the subject’s statement, “I am the Pope,” offered not for its intrinsic truth but to show the subject’s state of mind.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Lee LADEN, Defendant-Appellant.
    No. 36727.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 13, 1976.
    Rehearing Denied May 17, 1976.
    Robert A. Hampe, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant was found guilty on Count I of an information of the offense of carrying a concealed weapon and on Count II of the offense of attempted bribery of a police officer. The verdict of the jury was returned on October 29, 1974. Rule 27.20 requires that a motion for new trial be filed before judgment and within ten days after the return of the verdict. This rule also provides that on application of the defendant, the court may extend the time for filing this motion for an additional period of thirty days. A motion for new trial was filed on December 2, 1974, some thirty-four days after the verdicts of guilty. The record does not reflect that the appellant requested or that the court granted any extension of time for filing the motion for new trial beyond the original ten-day period provided in the rule. Thus the filing of the motion was some twenty-four days out of time.

The provisions of Rule 27.20(a) relating to the time for filing a motion for new trial are mandatory and such a motion must be filed within the time provided. Any motion for new trial filed beyond the time provided in this rule is a nullity and preserves nothing for appellate review. State v. Tucker, 451 S.W.2d 91, 92[1, 2] (Mo.1970); State v. Warren, 469 S.W.2d 662, 663[4] (Mo.App.1971).

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


author: SWOFFORD, Judge.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent, v. J. A. TOBIN CONSTRUCTION COMPANY, Appellant.
    No. KCD 27088.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Gene C. Morris, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for appellant.
    Robert M. Kroenert, Morrison, Hecker, Curtis, Kuder & Parrish, Jack C. Lorenz, James A. Daugherty, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The respondent (hereafter Bell), in a court-tried case, was awarded a judgment for damages to its underground cable which was severed by a bulldozer operated by appellant (hereafter Tobin) in connection with a highway construction project. Bell’s petition was in three counts: 1) action for trespass; 2) violation of a highway construction contract between Tobin and the State Highway Commission under the terms of which Bell claimed to be a third party beneficiary; and 3) a cause of action based upon negligence. The court below found in favor of Tobin on the first and third counts, but in favor of Bell on the second (contract) count, and awarded it damages in the amount of $3,223.95.

Bell did not appeal from the adverse judgment on Counts one and three, but Tobin lodged this appeal of the judgment on Count two. It claims, first, that the court erred in granting a judgment on Count two because its contract with the State did not require it to indemnify Bell against the results of Bell’s own negligence. Tobin also assigns error in the granting of the judgment because Bell is estopped from asserting its claim for damages. A resolution of the first point is decisive of this appeal.

The essential and basic facts generated no dispute between the parties, and these facts, as they relate to the theory of contract liability forming the basis of Count two of Bell’s cause of action, may be summarized as follows.

Prior to 1965, Bell had transmission facilities located within the right of way on the west side of then U.S. 71 Highway, at or near its intersection with Route W in Platte County, Missouri. These consisted of a cable buried 2½ to 3 feet below the ground surface and overhead lines on poles on the west side of the highway. Bell learned in 1965 that the State Highway Commission planned a modification of existing No. 71 Highway to convert it to Interstate Highway No. 29, which would require the relocation of Route W and therefore a relocation of Bell’s transmission lines at No. 71 and Route W.

In the early part of 1968, Bell received from the State Highway Commission copies of the plans for the reconstruction in the area involved, Sheets 39 and 41 of which showed the specific plans affecting Bell’s transmission lines at Route W. Sheet 39 indicates a six-foot flat-bottom ditch to be constructed for drainage purposes parallel to relocated Route W, and Sheet 41 shows a continuation of this ditch into the area where Bell’s cable was cut by Tobin during the excavation of the drainage ditch. From these sources, Bell’s engineers made a plan for the relocation of its facilities intended to conform to and avoid conflict with the proposed changes (which of necessity would include the drainage ditch). Bell decided to remove its overhead lines and to replace them with cable buried at the same horizontal and vertical location as the then existing buried cable, which was approximately 36 inches below natural grade. Bell’s plans did not incorporate into or show the continuation of the proposed drainage ditch as shown on Sheet 41, but only the data as shown on Sheet 39, where the drainage ditch ends at a point northeast of where the cable was cut.

Bell’s original installation of facilities at this point and the relocation thereof were both done by permission from the State Highway Commission under a written document called “Excavation Permit”, which provides, in part:

“Section 9. All utility facilities will be installed and located and all other work performed in accordance with the Commission’s ‘Policy on Location of Utility Facilities on State Highways’ and other policies of the Missouri State Highway Department. All work will be as directed by the District Engineer.
⅝ sjs ⅜ sfc ⅜ *
Section 11. * * * All other underground installations will have a minimum cover of 30 inches, except parallel direct burial underground telephone cable, which may have a minimum of 24 inches of cover. Greater mínimums may be required by the District Engineer.
Section 14. Roadway ditches, culverts and other such devices used to carry surface run-off will be kept open, free and clear at all times.” (Emphasis supplied)

Had the available data obtainable from Sheet 41 of the plans been studied, it would have been apparent that the proposed location of Bell’s cables at the place where they were cut would be at a vertical level of about the center of the proposed six-foot drainage ditch rather than a minimum of 24 inches below the bottom of the ditch, as required by Section 11 of the Bell permit to relocate its lines, as above set forth. The Bell relocation plan thus clearly conflicted with the highway construction plan and the relocated facilities would not be clear of the construction.

Nevertheless, Bell employed a contractor to accomplish the relocation of its facilities in accordance with the plans prepared by Bell’s engineers and this work was completed on June 28, 1968.

On October 28, 1968, Tobin’s bulldozer operator, while excavating the drainage ditch west of relocated Route W in accordance with the plans and specifications of the State Highway Commission and in accordance with the slope stakes placed at the site by the state engineers, cut Bell’s cable, relocated within the vertical and horizontal area being excavated.

There is no evidence that Tobin had any actual or constructive knowledge of the actual location of the cut cable, but, on the contrary, assumed that Bell had relocated its lines to conform to the new construction.

The court below very properly found upon this evidence that Bell was negligent in failing to properly transpose Sheets 39 and 41 of the highway construction plans and to cause its relocation plans to conform therewith.

The parties concede, or at least no real issue is raised, that Bell comes within the class of donee beneficiary (third party beneficiary) of the contract between Tobin and the State Highway Commission within the general definition of that term as stated in Restatement of the Law of Contracts, Section 133, pp. 151-152, which has been approved by the courts of this state in Royal Indemnity Company v. Schneider, 485 S.W.2d 452, 459[8] (Mo.App.1972) and cases cited therein. Likewise, the position of Bell fits within the special application of Section 133 under Restatement of the Law of Contracts, Section 145(a), p. 173, which states in part:

“Beneficiaries Under Promises to the United States, a State, or a Municipality. A promisor bound * * * to a State * * * by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members to give compensation for the injurious consequences of performing * * * it * * *, unless,
(a) an intention is manifested in the contract, as interpreted in the light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences, * * *” (Emphasis supplied)

This principle of Restatement is sound and, although not heretofore specifically approved by Missouri courts, is consistent with the case law and reasoned principles of such law in this state, as will be hereafter demonstrated. So, the sharp focus of the exact point decisive of this appeal bears inevitably upon the terms of the contract between Tobin and the State as to any rights of Bell as a third party beneficiary created thereunder.

The contract for the highway construction, including the relocation of Route W here involved, between Tobin and the State Highway Commission incorporated as terms thereof the “Missouri Standard Specifications for Highway Construction, 1961” which, as pertinent here, provided:

“7.7. Preservation of Utilities, Monuments and Artifacts.
7.7.1. The contractor (Tobin) shall be responsible for the preservation of all public and private utility wires, lines * * cables and conduits within the right of way and shall use every precaution necessary to prevent damage or injury thereto.
* * * * * *
8.5. Cooperation with public utilities. 8.5.1. The general location of * * * telephone conduits * * * an(j other public and private utility facilities which will affect construction operations are indicated on the plans insofar as their locations are known. Some of these utilities are to remain in place; others may be removed entirely or in part by the owners for relocation elsewhere. * * *
8.5.5. The contractor (Tobin) shall be responsible for all damage to any utility facility due directly to his operations regardless of location and he shall repair and replace as necessary any such damaged facility or make payment to the owner (Bell) for repair or replacement. ” (Material in parenthesis and emphasis supplied)

Since Bell is to be considered here as a third party beneficiary of the contract between Tobin and the State, the only remaining point for decision is whether the above contract provisions protect Bell against damages resulting from its own negligence as clearly demonstrated by the evidence in this record. This point requires a survey of existing and binding decisional law viewed in the light of the contract provisions above set forth.

It is clear that two parties may enter into a valid contract whereby one is indemnified by the other against loss by the former (indemnitee) as the result of his own negligence. This type of contract is routine in the area of liability insurance contracts and has been approved in areas of construction contracts. Kansas City Power & Light Company v. Federal Construction Corporation, 351 S.W.2d 741, 745[1] (Mo.1961).

As a natural development from such contractual relationship, no legal or public policy consideration would stand as an impediment precluding two parties from validly agreeing, by contract, that a third party should be indemnified against a loss incurred by his own negligence.

However, in either instance, the law has wisely required that such broad and comprehensive indemnification agreement be expressed in clear, unequivocal and unambiguous terms. Courts in Missouri have not (and should not) construe such an indemnity contract, protecting against negligence, in the absence of such clear expression or where any doubt exists as to the intention of the parties. Kansas City Power & Light Company v. Federal Construction Corporation, supra, at l. c. 745[1], and cases cited therein; Missouri Pacific Railroad Company v. Rental Storage & Transit Company, 524 S.W.2d 898, 908[12] (Mo.App.1975); Midwestern Realty Corporation v. City of Grandview, 416 S.W.2d 35, 38-39[2, 3, 4] (Mo.App.1967).

The terms of such indemnification should be scrutinized with even more critical vigor where the benefit accrues to a third party beneficiary rather than to an original contracting party. Broad, indefinite or general terms are not sufficient to impose contractual indemnification. Kansas City Power & Light Company v. Federal Construction Corporation, supra, 351 S.W.2d at l. c. 745[2]; Missouri District Telegraph Co. v. Southwestern Bell Telephone Co., 338 Mo. 692, 93 S.W.2d 19, 27-28[18] (banc 1935). An example of the specificity required to create such an agreement of indemnification against negligence is found in Missouri Pacific Railroad Co. v. Rental Storage & Transit Company, supra, 524 S.W.2d at l. c. 908[12], where the contract provided for indemnification “notwithstanding any possible negligence”.

In light of Bell’s negligence which directly led to its damage, and the logical rules governing indemnification in such circumstances, it is clear that the contract between Tobin and the State, and particularly Section 8.5.5 of Specifications for Highway Construction, 1961, above quoted, lacks the certainty and clear, unequivocally expressed intention to indemnify Bell against loss by reason of its negligence.

For these reasons, the judgment of the court below in favor of the respondent and against the appellant on Count two of respondent’s petition is reversed.

All concur.


author: PER CURIAM.

text:
    Frederick M. SOLBERG, Jr. and Elizabeth T. Solberg, Respondents, v. Patricia Lenore KANE, Appellant.
    No. KCD 27089.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Thomas J. Cox, Jr., Shirkey & Cox, Kansas City, for appellant.
    Donald G. Stubbs, Steven J. Borel, Stubbs, Epstein & Mann, Kansas City, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

Plaintiffs, hereinafter referred to as buyers, brought suit against defendant, hereinafter referred to as seller, for specific performance of a contract for the sale of certain real property. Seller resisted performance at the trial level on the ground that there was no “mutuality of obligation” since the buyers could avoid performance at their sole and absolute discretion, and on the further ground that the contract was the result of “deception, duress and undue influence” exerted upon her.

The trial court, found in favor of the buyers and entered a judgment in their favor compelling specific performance by the seller. On appeal the seller continues to resist performance on the two grounds heretofore stated, and, additionally, claims the judgment entered by the trial court should be reversed because “[ejrror was committed in allowing the trial to proceed in the absence of [seller], thereby prejudicing [seller’s] right to participate in her defense.”

Seller bottoms her defense of lack of “mutuality of obligation” on the following language found in the contract relative to payment of the balance of the purchase price: “Buyer to receive loan on terms acceptable to buyer of $22,500 at an interest rate not to exceed 7V2% for a period of not less than 25 years. . . . Buyer to apply for above loan within 5 days . . . Seller further refines this defense by arguing that the particular language, “on terms acceptable to buyer”, rendered any obligation on the part of buyers to purchase the real estate illusory because what might constitute “acceptable” terms was left to their unbridled whim and caprice.

If the controversial provision is susceptible of a fair and reasonable construction, then it must be so construed in this action for specific performance. Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268 (banc 1946). The basic and most material terms of the loan to be obtained by the buyers were specifically delineated — the amount, minimum term, and maximum rate of interest. The language, “on terms acceptable to buyer”, could only relate to residual loan terms. Since the contract did not specifically delineate any residual loan terms, the language, “on terms acceptable to buyer”, is susceptible of being fairly and reasonably construed as subjecting the buyers to residual loan terms in conformity with those prevailing in the market place for comparable loans. So construed, the contractual provision relied upon by seller, contrary to the position taken by her, did not constitute an escape clause which the buyers could invoke arbitrarily, capriciously or in bad faith. Skelly Oil Company v. Ashmore, 365 S.W.2d 582 (Mo. banc 1963). So construed, “acceptable” residual loan terms were susceptible of being measured by extrinsic facts and in no way dependent upon the personal whim or fancy of the buyers. Herzog v. Ross, supra; Mullally v. Greenwood, 127 Mo. 138, 29 S.W. 1001 (1895); Restatement of Contracts § 265 (1932). A contract for the sale of real property containing a clause making it conditional upon buyer obtaining a loan, standing alone, does not render the contract unenforceable for want of mutuality of obligation and the seller in the instant case has not questioned this basic proposition. Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454 (1943); Nelson v. Jenkins, 214 S.W.2d 140 (Tex.Civ.App.1948); and Pease v. Brown, 186 Cal.App.2d 425, 8 Cal.Rptr. 917 (1960). The contract in question was supported by adequate consideration — mutual promises binding on the respective promis-ors, i. e. seller’s promise to sell and buyers’ promise to buy.

The seller’s attempt to avoid performance on the ground that the contract was the result of “deception, duress, and undue influence” exerted upon her is not well taken. This defense is predicated solely on the seller’s own testimony and in order for it to prevail evidence in direct contradiction thereto offered by the buyers would have to be ignored. On appellate review of court tried cases “[d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01 3(b). In order to sustain seller’s second defense, this court would have to inject itself as the final arbiter of the credibility of witnesses whom it never heard, saw or observed, thereby making a mockery out of the salutary principle of giving due deference to the trial court’s assessment of the credibility of witnesses. This it refuses to do.

There is no merit to seller’s contention that she was prejudiced by the fact that the trial commenced in her absence. A brief resume of certain events is necessary to put this particular contention in proper perspective. The record reveals that when the case was originally set for trial it was continued at the request of seller, and approximately two years elapsed before it was reset for trial. The record also hints that seller’s lack of cooperation throughout delayed a timely disposition of the case at the trial level. On the date the case was reset for trial seller did not appear in person. However, her attorney of record appeared and orally requested a continuance on the ground that seller was hospitalized. A colloquy between court and counsel disclosed that seller had been notified of the trial date and thereafter voluntarily sought admittance to a hospital. The trial judge denied the oral request for a continuance sought by the seller’s attorney of record. Since the request for a continuance was not made in writing and supported by affidavit, as required by Rule 65.03, the trial court did not abuse its discretion by commencing the trial in seller’s absence. Rule 65.03, supra; McGinley v. McGinley, 170 S.W.2d 938 (Mo.App.1943); and Searles v. Searles, 495 S.W.2d 759 (Mo.App.1973). Moreover, the trial court literally bent over backward to alleviate any prejudice to the seller. After the buyers presented their case, the trial was recessed for a period of thirteen days in order to give seller an opportunity to appear and present her case, which she did. Seller has failed to cite a single instance whereby this procedure prejudiced her in fully presenting her side of the case. Moreover, the record discloses that seller’s attorney fully participated in that portion of the trial that occurred during her absence. Trial courts are constantly buffeted with every conceivable type of ploy for delay. For every hue and cry at the trial level to accelerate the disposition of cases there exists, in many instances, an equally vociferous hue and cry for delay. An orderly dispatch of business at the trial level cannot be achieved if a trial judge succumbs to requests for delay for the sake of delay and indifferently ignores compliance with Rule 65.03. Under the record presented on appeal the trial court did not abuse its discretion in commencing trial of this case in seller’s absence.

The judgment entered by the trial court conforms with the law and the evidence and is therefore affirmed. By so holding, it becomes unnecessary to rule on buyers’ motion to dismiss seller’s appeal.

Judgment affirmed.

      . It stands undisputed that the loan referred to was to be obtained from an “outside” source, with no obligation on the part of the seller to carry the loan.


author: SHANGLER, Presiding Judge.

text:
    Edwin W. PONDER, Appellant, v. AAMCO AUTOMATIC TRANSMISSION, INC., a corporation, Respondent.
    No. KCD 27100.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.

      Von Erdmannsdorff, Kuhlmann & Zimmerman, Kansas City, for appellant.
    John J. Alder, Richard D. Rixner, Donald L. Zemites, Shawnee Mission, Kan., Milton Skeens, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The plaintiff brought a petition in two counts for actual and punitive damages against Aamco Transmissions, Inc., and John Hale and Roy Hale, a partnership. The defendants Hale operated an automotive service center under a franchise agreement with Aamco Automatic Transmissions, Inc., a Pennsylvania corporation. The plaintiff had service of process on the defendant partners and also on John Hale, described on the return of the sheriff as Manager of Aamco Transmission Corporation. The partnership answered the petition but Aamco made no response.

The plaintiff then filed an amended petition which reiterated the causes of action against the parties but redesignated the corporate defendant as Aamco Automatic Transmissions, Inc. Service of process on the corporate defendant was made on Roy Hale as Manager of Aamco Automatic Transmissions, Inc. Once again, Aamco failed to answer the petition. Thereafter, the plaintiff voluntarily dismissed the defendants Hale.

Aamco did not appear at the trial and a judgment by default was entered against the corporation for $700 actual and $50,000 punitive damages on Count I and $355.35 actual and $15,000 punitive damages on Count II of the petition. A general execution issued. Aamco moved for quashal of the pretended service of process and to stay execution of the judgments.

The plaintiff contended to the court that the judgments had issued upon the service of process prescribed for foreign corporations by § 506.150, RSMO 1969, and therefore were valid exercises of jurisdiction. That statute provides:

The summons and petition shall be served together .

(3) Upon a domestic or foreign corporation ... by delivering a copy of the summons and of the petition to an officer, partner, a managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof, or to any other agent authorized by appointment or required by law to receive service of process .

The corporate defendant contended that Aamco neither conducted business at the automotive service premises of the defendants Hale nor constituted them as agent to accept service on behalf of the corporation; thus Aamco was neither amenable to service nor properly served and was not subject to the jurisdiction and judgment of the court.

The court took evidence on the motions and set aside the default judgments for want of proper service of summons and jurisdiction over the defendant corporation. The plaintiff has appealed.

A summons is a process, a means by which a defendant is subjected to the jurisdiction and judgment of the court which has issued the writ; it is also notice to a party of the proceeding against him and that he has opportunity to appear and defend his right of life, liberty and property. State ex rel. Ballew v. Hawkins, 361 S.W.2d 852, 857[7-10] (Mo.App.1962); 62 Am.Jur.2d, Process, § 2. The requirements for process and the manner of service are wholly as constituted by statute, and where not met, the court is without power to adjudicate. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407[3, 4] (1942).

The plaintiff claims the authority of § 506.150(3) to validate the judgments against Aamco. A foreign corporation is amenable to service — and a judgment in personam — by the terms of that statute only if it is doing business in this state. Collar v. Peninsular Gas Company, 295 S.W.2d 88, 91[4] (Mo.1956). The statute also requires that the delivery of process be upon one of the class authorized to receive service for the corporation. These observances are not only jurisdictional to a valid judgment as a matter of local law, but the requirement that a foreign corporation “do business” within the forum to be amenable to personal service is one of federal due process according to the jurisprudence reflected by § 506.150(3). Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760, 762[2] (1927). This constitutional requisite is met by evidence that the foreign corporation “entered the state and engaged there in carrying on and transacting, through its agents, the ordinary business in which it is engaged”. State ex rel. Ferrocarriles Nacionales de Mexico v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 38[13] (1932), cert. den. 289 U.S. 746, 53 S.Ct. 689, 77 L.Ed. 1492 (1933).

As presently appears, the evidence shows that there was no agreement of agency between the Hales and Aamco, either for the conduct of business or to receive service of process on behalf of the corporation. The question thus raised is whether, on the evidence, the foreign corporate franchisor was doing business within Missouri through the activity of the franchisee. Or, put another way, whether the Hales in fact operated the transmission service center as an agency of Aamco rather than as an independent business.

As the comment in 36 Am.Jur.2d, Foreign Corporations, § 363 articulates, it is often difficult to determine whether a local dealer who markets the products of a foreign corporation is in fact an independent business or so far under the control of the foreign company that the dealer becomes merely a conduit for the passage of goods from the foreign manufacturer to the consumer:

[The] difficulty arises chiefly from the fact that under some marketing practices, the local handling of such products is often pursuant to contracts which . in varying degree, restrict independent action [of the local dealer], regulate future relations of the parties and the manner and terms of disposal of the products, provide for co-operation and assistance on the part of the foreign company, and create a somewhat anomalous relation between such company and the local dealer, partaking both of the character of seller and purchaser and that of principal and agent. Whether the local dealer’s activities pursuant to such a contract will be held to constitute doing business in the state on the part of the foreign corporation ordinarily depends on whether the effect of the terms of the particular contract is deemed to include the creation of a relation of principal and agent in respect to the foreign corporation’s business. If it is, the corporation is ordinarily regarded as doing business in the state . . If the effect of the contract is deemed to be no more than the creation of the relation of seller and buyer, however, a contrary view is taken. The question depends on the sense of the agreement as a whole. [Emphasis supplied.]

In the consideration of this issue, the New York Court of Appeals has held that where the foreign corporation is a separate entity, unmingled in ownership with the domestic enterprise, a valid inference of agency does not arise, and the foreign corporation has neither “presence” in the forum state nor is “doing business” in the traditional sense as to allow personal service and jurisdiction for a general judgment. Delagi v. Volkswagenwerk AG of Wolfsburg, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 655, 278 N.E.2d 895[1] (1972). Finding no inference of agency, the opinion noted the court had never held a foreign corporation to be “doing business” on the basis of control exerted over franchise dealers unless there was at least a parent-subsidiary relationship, and then only when the control over the subsidiary was so complete as to render it in fact merely a department of the parent.

A comparable logic underlies our decision in Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975). In that case Cooks Discount Department Store was a Missouri retail outlet and division of the national discount house, Cook United, Inc., an Ohio corporation, not licensed to do business in this state. The plaintiff brought an action for false arrest and imprisonment against Cook United with directions that service of process be made on: Cook United, Inc. d/b/a Cooks Discount Department Store . . . (SERVE: STORE MANAGER). A default judgment for actual and punitive damages was entered pursuant to the return of the sheriff which certified service upon Operation Manager, Sam Wray. Wray was the manager of the local retail division of the defendant Cook United. The defendant moved to quash the return of service as noncompliant with § 506.150(3) on the premise that Cook United was not doing business in Missouri through the local Cooks Discount Department Store and that, under the statute, service of process upon the manager of the local retail outlet was not notice to the foreign corporate defendant.

The evidence was, however, that the defendant regularly advertised Cooks Discount Department Store as a division of Cook United, Inc., that the defendant employed and paid the personnel of the retail outlet, and that the daily regular activity of the Missouri store was completely controlled and dominated by the parent Ohio corporation. These circumstances created the local retail operation the agent for the conduct of the business of the defendant corporation which thereby became amenable to service of process and personal judgment under § 506.150(3).

The evidence before us is of a different character. The relationship between the Hales and Aamco was created and governed by a Franchise Agreement which by its very terms acknowledged that the Hales would be independent in their business. In pursuance of that course of dealing, the Hales established the family corporation, J. & R. Enterprises, Inc., which was the employer for the automotive service business, conducted the financial transactions, and leased the business premises. Under the Franchise Agreement, and in practice, the Hales purchased equipment and material from Aamco and received title; the Hales [J. & R. Enterprises] hired and paid their own employees without interference from Aamco, kept their own books and paid their own taxes; the Hales [J. & R. Enterprises] set their own prices and arranged for customer financing; Aamco paid nothing for the services of the Hales. Then there was the testimony of Roy Hale which acknowledged that he was never authorized by Aamco as agent either in the business affairs of the franchisor or for service of process on behalf of that corporation.

Aamco was entitled to 7% of the cash receipts of the franchisee under their agreement. Only the Aamco name was allowed [and in fact was exhibited] on the automotive center building premises. Reports were required from the Hales to Aamco on forms provided for that purpose; occasionally the Hales were instructed to adopt certain business procedures and were subject to inspection by an Aamco representative. The advertising in every diversity was prepared and controlled by Aamco but paid for by the Hales at the cost of from $300 to $400 per week. The franchisee was required to establish those guarantees to the public as established by Aamco. The quality standards and specifications for parts sold were set by Aamco. The franchisee agreed to do work on credit and to belong to such national credit services as designated by Aamco. The franchisee agreed to purchase parts exclusively from Aamco except under certain conditions. The hours of operation were subject to the control of Aamco. These and other related conditions were expressed in the agreement of the parties.

The sense of the agreement as a whole, as we find it, recognizes the operation of the Hales as an independent business. The conditions imposed by Aamco do speak a measure of control over the activities of the franchisee, but not so far as to constitute the local outlet a mere conduit for the goods and services of the franchisor. The title to the goods purchased from Aamco under the agreement passed to the Hales; they employed, governed and paid their own personnel, set their own prices, leased their own premises and were, strictly, a business enterprise separate from Aamco. The relation between them was that of seller and buyer, not principal and agent. Accordingly, Aamco was not doing business in this state through the activity of the franchisee and so was not amenable to service under the provisions of § 506.150(3).

Nor is it of any consequence that Aamco may have had actual notice of the suit when the attorney for the Hales notified the Pennsylvania counsel of the corporate defendant that Hale had been served with process as manager of Aamco. Actual notice given in any manner other than as prescribed by the service statute is not sufficient. Due process of law as applied to proceedings which result in judgment means a notice directed by the statute itself and not one given in discretion" or favor. Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, 769[13] (1954).

The plaintiff chose to invoke the power of the Missouri courts to adjudicate his claim against Aamco by the procedures of § 506.150(3). That enactment expresses the constitutional principle of due process that a state has no power to assert an in personam jurisdiction over a foreign corporation which is not doing business within the forum at the time of service. The judgments accorded the plaintiff fail for want of jurisdiction under the statute.

The more recent jurisprudence has noted that the increased flow of commerce between the states has engendered need for an increased jurisdiction over nonresidents, and that the advances in communications and transportation have lessened the burden of defense of a suit in a foreign tribunal. Hanson v. Denckla, 357 U.S. 235, 251[16], 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The traditional doing business quantum has yielded to the nature of the corporate activity as the test for jurisdiction. The new test lays down the principle that the due process clause requires only that, in order to subject a nonresident to a judgment in per-sonam, “certain minimum contacts” within the forum territory must be shown so that “the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’ ”. International Shoe Co. v. Washington, 326 U.S. 310, 316[3], 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). And where the activity of the nonresident within the state is of exceptional concern to the forum, the exercise of the power of the courts to adjudicate may be permitted on the basis of a single transaction within the jurisdiction. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

The Missouri Legislature responded to these developments by the enactment in 1967 of §§ 506.500 through 506.520, RSMo 1969. These statutes submit nonresidents to the jurisdiction of our courts as to any cause of action which arises from [inter alia] any contract made by the nonresident within the state or the transaction of any business within the state. § 506.500; Rule 54.06. This procedure, which extends the jurisdiction of the courts of this state over nonresident defendants to the outer limits permitted by federal due process, was declared constitutional in State ex rel. Deere & Company v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970).

Although we have concluded that Aamco was not doing business in Missouri according to the traditional concepts of due process expressed by § 506.150(3) and therefore not amenable to the jurisdiction of the forum, the activity of Aamco under the franchise agreement was the transaction of business in this state and afforded those minimum contacts for jurisdiction and judgment under § 506.500. The plaintiff made no attempt to comply with the provisions for the commencement of an action under that statute [§ 506.510; Rule 54.06] by personal service of process outside the state, thus the judgments entered upon the counts of that petition were without the notice of statute and without force of law.

We notice and overrule the Aamco motion to dismiss the appeal for want of compliance by the plaintiff with Rules 84.04(d) and (h).

The judgment of quashal of service and stay of execution of the judgments on Counts I and II is affirmed.

All concur.

      . The causes of action were for negligent and wanton treatment of the automobile the plaintiff entrusted to the defendants for transmission repair.

      . Aamco was not licensed to do business in Missouri. It is not required for valid service under § 506.150(3), however, that the corporation be licensed to do business in this state, but only that it is doing business here when served. Ward v. Cook United, Inc., 521 S.W.2d 461, 464[1] (Mo.App.1975).


text:
    Emanuel D. GRANGER, Appellant, v. ITT CONTINENTAL BAKING COMPANY, Respondent.
    No. KCD 27101.
    Missouri Court of Appeals, Kansas City District.
    May 3, 1976.
    George H. Miller, Sedaba, Hensley & Rahm, Warrensburg, for appellant.

      A. Warren Francis, Lloyd A. Hamrick, Stephen S. Brown, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

The appellant (hereafter plaintiff), after a jury trial, was awarded a verdict and judgment for $4,000.00 damages for personal injuries sustained in a collision between an automobile being operated by him and a bread truck owned by the respondent (hereafter defendant), and being operated by its employee, John Delbert Shores (hereafter Shores). This cause was submitted to the jury solely upon the theory of humanitarian negligence, in Instruction No. 4. The trial court sustained defendant’s motion for a new trial for the reason (without further elaboration in the record) that “an error was made in submitting Instruction No. 4”. From this order, plaintiff appeals, asserting as reversible error that Instruction No. 4 was a proper instruction, was not a deviation from MAI, and in the alternative, if it was a deviation, defendant was not prejudiced thereby.

A resolution of the problem thus presented necessitates a summary of the evidence as to the liability factors in this case.

On September 23, 1972, at about 2:15 p. m., the plaintiff was driving his 1972 Dodge automobile in an easterly direction upon U.S. Highway No. 69 near Fishing River in Clay County, Missouri. He was a member of the Air Force, stationed at Whiteman Air Force Base, and he and three other service men were en route to Excelsior Springs, Missouri. At the point of the collision, No. 69 is a divided highway with two lanes eastbound and two westbound, divided by a median strip; the paved portion of the eastbound lanes is 24 feet in width; there is a driveway apron on the south side of the highway about ten feet in width giving ingress and egress to and from a filling station-cafe establishment; there is a crossover north of this drive to the westbound lanes of No. 69; approximately 323 feet west of this driveway a girdered bridge carrying eastbound vehicles crosses the river; and west of this bridge there was a 55 m. p. h. speed limit sign controlling eastbound traffic.

The weather was clear and the pavement dry on the afternoon here involved. There was no obstruction to vision in either direction from the east end of the bridge to the filling station-cafe driveway, although the visibility from the east of a car on the bridge would be somewhat obstructed by the bridge girders.

The plaintiff testified that west of the bridge his speed was 60-70 m. p. h.; that in obedience to the speed sign, he slowed his car; that as he came off the east end of the bridge, traveling in the right eastbound lane, he saw the defendant’s truck stopped in the filling station driveway with its front end about 5 feet south of the pavement; that he proceeded eastbound until his car was 150 to 200 feet from the point of collision, traveling at a speed of 50-60 m. p. h., when the truck started up toward the highway; that he hit his brakes, honked his horn and swerved to the right (south), then realized he did not have room to pass behind the truck; that he then swerved to the left (north), but another vehicle was in the median crossover, headed south, facing the bread truck, so that the plaintiff could not use that area to avoid collision; and, that at the time he went through these various maneuvers, the truck had again stopped completely blocking the right eastbound lane (in which the plaintiff had been traveling) and partially blocking the left eastbound lane. The plaintiff stated that “I hit him”, the points of impact being the right front of his car and the left front wheel and forward on the truck.

The defendant’s driver, Shores, testified that after making a bread delivery to the cafe south of the point of collision, he drove north from its parking area, stopped his truck with the front end about 10 feet south of the south pavement of the highway and looked for cross traffic, observed none, and started up, attaining a speed of 2-5 m. p. h.; that he then observed plaintiff’s vehicle just coming off the end of the bridge to the west, applied his brakes and brought the truck to a stop with the front end approximately two feet south of the center line between the two eastbound lanes; that he heard the plaintiff’s brakes “squealing” about the time he stopped the truck; and that the plaintiff’s car followed a fairly straight line into the collision from the time he observed it.

The highway patrolman who investigated the accident placed the majority of the debris or “shakedown” in the right (or south) eastbound lane with some north of the center line.

An eastbound motorist testified that the plaintiff passed him about a mile west of the bridge at a speed of 75-80 m. p. h., and the operator of the filling station stated that the speed of the plaintiff’s car at the east end of the bridge was 75-80 m. p. h.

Instruction No. 4, as given to the jury, is as follows:

“Your verdict must be for the plaintiff whether or not plaintiff was negligent if you believe:
First, plaintiff was in a position of immediate danger of being injured and was injured, and
Second, defendant knew or by using the highest degree of care could have known of such position of immediate danger, and
Third, at the moment when defendant first knew or could have known of such position of immediate danger, defendant still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care, he could have avoided injury to the plaintiff by remaining to the south of Highway 69 until after the automobile in which plaintiff was riding had passed, and
Fourth, defendant negligently failed to so remain to the south of said highway 69 until after the automobile in which plaintiff was riding had passed, and
Fifth, plaintiff’s injury directly resulted therefrom.” (Emphasis supplied)

This instruction was obviously modeled after MAI 17.14 and 17.15, except for the emphasized portions above noted. In the model MAI 17.14, the acts which defendant could have taken to avoid injury to plaintiff are “slackening his speed and swerving”, followed by this comment in “Notes on Use”: '

“Other acts which may be hypothesized include: stopping, swerving, slackening his speed, sounding a warning, and appropriate combinations.”

Further, in the “Committee’s Comments” following MAI 17.14, it is pointed out that the term “immediate danger”, as used therein, is substituted for the traditional term “imminent peril”, as theretofore used in humanitarian negligence submissions, in order to avoid the necessity of an instruction defining “imminent peril” as “certain and immediate danger”. The terms in this context are obviously synonymous.

Defendant strongly asserts (among other things) that Instruction No. 4 represents an unwarranted deviation from MAI 17.14, and 17.15, with reference to the hypothesis that plaintiff was in “immediate danger” when defendant’s truck was stopped, and that defendant could have avoided injury to plaintiff by remaining stopped south of the highway. The plaintiff argues that the deviation from MAI was necessary and not prejudicial to the defendant.

Counsel have not cited and independent research has not disclosed any decision where humanitarian negligence has been based upon a factual situation where the defendant in a stopped position off the paved portion of a highway is charged with negligence under the humanitarian doctrine for failure to remain in such stopped position.

It is obvious that the selection of hypothesized acts of negligence charged against defendant which might bring the doctrine into play depends upon the circumstances disclosed by the evidence in each case. But a necessary prerequisite in every case before humanitarian negligence can be applied is that the plaintiff be in a position of immediate danger. But this, is meant that the danger must be “imminent, certain, immediate and impending”, and a bare possibility or likelihood of injury does not satisfy that first and basic requirement. Further, it is the burden of the plaintiff to show when and where he came into immediate danger “as well as to show that defendant had the ability to warn or swerve” or take other action to avoid injury. Leap v. Gangelhoff, 416 S.W.2d 65, 67[1, 2, 3] (Mo.1967); Dixon v. Kinker, 410 S.W.2d 347, 351[8] (Mo.App.1966); Woods v. Dalton, 331 S.W.2d 132, 138[6, 7] (Mo.App.1960).

Generally, the point of plaintiff’s position of immediate danger (or imminent peril) is for the jury to determine. Kuehn v. Hahn, 380 S.W.2d 445, 448[3] (Mo.1964); Leap v. Gangelhoff, supra. However, MAI 17.14 and 17.15 do not authorize or require the hypothesis of the particular facts by which the plaintiff meets his burden of proof in this regard.

Likewise, it is for the jury to decide whether once defendant either had actual or constructive knowledge of plaintiff’s immediate danger, he could have avoided injury to the plaintiff by the particular means submitted. Bougeno v. Thompson, 499 S.W.2d 506, 509[2] (Mo. banc 1973).

Applying these basic rules of humanitarian negligence to the evidence in this case, the plaintiff could not have been in any position of immediate danger when he emerged from the east end of the bridge and the truck was stopped 5-10 feet south of the pavement of Highway No. 69. The first point where such danger obtained could only have been when the truck started up and began moving into his path at a speed of 2-5 m. p. h. when the plaintiff, according to his testimony, was 150-200 feet west of the point of impact. It was at that time that the humanitarian doctrine imposed an obligation upon defendant to act by swerving, slackening speed or any other acts within the purview of that doctrine. See: Wyckoff v. Davis, 297 S.W.2d 490 (Mo.1957). If the ability to so act to avoid injury had been established by evidence, it would have been proper to submit MAI 17.14, without deviation, as the verdict directing instruction. If such facts were not established, the plaintiff would have been relegated to a primary negligence submission. Since a humanitarian situation did not exist until the truck moved toward the path of the plaintiffs automobile, to hypothesize that defendant should have remained in a stopped position south of the highway was at least an unnecessary deviation from MAI 17.14 and prejudicial error will be presumed unless it is made perfectly clear that no prejudice could have resulted to the defendant thereby. Brown v. St. Louis Public Service Co., 421 S.W.2d 255, 259[3] (Mo. banc 1967); Offenbacker v. Sodowsky, 499 S.W.2d 421, 424[2, 3] (Mo.1973).

No such clear showing of lack of prejudice appears, and the plaintiff’s arguments on this point are not convincing. On the other hand, the inherent prejudice and error in Instruction No. 4 are obvious. The instruction, as given, was a clear invitation to the jury to find that plaintiff entered a position of immediate danger at a point 320 feet west of the point of impact. Such an invitation is at war with both the facts and the law applicable in this case, extends the zone of peril far beyond permissible limits, and obviously was highly prejudicial to the defendant.

Other reasons asserted by the defendant as to the error in Instruction No. 4 need not be detailed. The trial court properly granted the defendant a new trial because of error in Instruction No. 4.

The judgment is affirmed.

All concur.

      . The basic difference in these two MAI instructions is that 17.14 is a compound submission whereas 17.15 is a disjunctive submission.