author: RENDLEN, Judge. McMILLIAN, Judge

text:
    William CATO and Lorenia Cato, Plaintiffs-Appellants, v. Aisie MODGLIN, et al., Defendants-Respondents.
    No. 36709.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 26, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Igoe & Igoe, John R. Igoe, Ray E. White, Jr., St. Louis, for plaintiffs-appellants.
    Kortenhof & Ely, Joseph M. Kortenhof, Ben Ely, Jr., St. Louis, for Jacky Williams.
    Godfrey, Vandover & Burns, Inc., Samuel T. Vandover, St. Louis, for Lloyd Hicks.
    Albrecht & Homire, Edmund C. Albrecht, Jr., St. Louis, for Aisie Modglin.
    Holtkamp & Beckemeier, St. Louis, for Florence Dollinger.
   RENDLEN, Judge.

Plaintiffs William and Lorenia Cato appeal from the judgment entered on directed verdicts for defendants Williams and Hicks and on the jury verdicts for defendants Aisie Modglin and Florence Dollinger, Ad-ministratrix of the Estate of Paul Dolling-er. This case arises from a multi-car accident during a heavy snowstorm January 26, 1969.

Points numbered IV and IX of plaintiffs’ brief, not raised in the motion for new trial, are thus not preserved for review. Rule 78.07 V.A.M.R. Plaintiffs points V, VI and VII are not in compliance with Rule 84.04(d) as they fail to tell us wherein or why the trial court’s actions were erroneous. They, like IV and IX, are not reviewed. Matter of Estate of Lang-ford, 529 S.W.2d 31, 32-3[4] (Mo.App.1975).

Contentions properly presented which we for convenience and clarity have renumbered, are as follows: The trial court erred (1) in directing a verdict for Williams and Hicks as a submissible case had been made against these defendants; (2) “in permitting repeated objections of defense counsel and comments of the court to interfere with the orderly presentation of the evidence and in the court making comments upon the weight and credibility of the evidence and witnesses and stating incorrectly testimony of witnesses and in criticizing plaintiffs’ counsel all of which took place within the hearing of the jury”; and (3) in permitting testimony of the investigating officer from the Highway Patrol, that all cars were skidding, as he did not observe the accident.

“In determining whether . a submissible case was made on the theory of primary negligence or under the humanitarian rule we review the evidence from the standpoint most favorable to plaintiffs and give them the benefit of all reasonable inferences therefrom.” Sehmittzehe v. City of Cape Girardeau, 327 S.W.2d 918, 922[2] (Mo.1959); see also Schmidt v. Allen, 303 S.W.2d 652, 655[3] (Mo.1957); Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App. 1974). This standard of review is “tempered only by the wise, judicious limitation that this rule calls for consideration of all, not merely an isolated part or parts, of the facts shown by plaintiff and does not require the court to supply missing evidence, or to give plaintiff the benefit of forced unreasonable inferences, or to disregard the dictates of common reason and accept that which, on the whole record, obviously is not true.” Graham v. Conner, 412 S.W.2d 193, 198[3] (Mo.App.1967).

Plaintiffs sought recovery from the defendants, alleging as acts of primary negligence, excessive speed, failure to keep a lookout ahead, failure to “have their vehicles under control,” and neglecting to swerve or sound a warning; also as acts of humanitarian negligence, failure to stop, slacken, swerve, or sound a warning. If the evidence justified submission on any properly pled allegation against either defendant Williams or Hicks, the directed verdict as to such defendant must be reversed. See Nelms v. Bright, 299 S.W.2d 483, 488[12] (Mo. banc 1957).

Considering the evidence most favorable to plaintiffs concerning defendant Williams, the jury could reasonably have found that plaintiffs and Williams were traveling north on Highway 67 toward St. Louis in a severe winter storm. The road, a four lane north-south divided highway, was covered with approximately four inches of snow and virtually all northbound traffic was traveling at 35^45 miles per hour in the right-hand lane. Williams was following plaintiffs either immediately behind or following a truck immediately behind plaintiffs’ automobile. When the line of traffic slowed in front of plaintiffs, their car went into a skid, apparently as a result of striking the car ahead, sliding sideways northward in the right-hand lane. Defendant Williams’ car hit plaintiffs’ car broadside or at a slight angle. After the impact, Williams’ car slid around plaintiffs’ and came to rest across the centerline north of plaintiffs’ car. Williams admitted striking plaintiffs’ car testifying: “When I said I could have gotten around him, I was basing it on the fact that the truck [i. e. the truck Williams said was traveling in front of his car] got around the car and the Volkswagen [plaintiffs’ car] did appear to be mostly in my lane in the right so the truck got around, so I assume I could have gotten around, I mean there was room to get around but putting on my brakes I slid into him.” (Emphasis ours.) Even if the jury did not believe there was a truck, this testimony with the other evidence combined to make a submissible issue of defendant’s negligence in electing to stop instead of swerve. As this defendant testified, the truck ahead of him, if there was such a truck, swerved and missed plaintiffs’ car, permitting the jury to consider whether Williams could have so swerved, since as he conceded, “I assume I could have gotten around, I mean there was room to get around.” Therefore, the ruling of the trial court as to defendant Williams must be reversed and the cause remanded for retrial.

Plaintiffs’ case as to defendant Hicks was more tenuous. All the evidence tended to show that Hicks struck Williams’ car in the left-hand lane, to the north of and after it had collided with plaintiffs’ car. The record discloses and plaintiffs’ counsel conceded in conference that their only evidence as to this defendant was (1) the fact that Hicks was unsure if he hit any other cars, and (2) paint samples taken from Hicks’ and plaintiffs’ cars were found to be identical by spectroscopic analysis. However, these samples were taken more than five weeks after the accident, during which time both cars had been towed to the same junk yard and stored with no effort made to preserve them as evidence. What movement or manner of handling and possible contact during or after their removal from the scene was not shown. Even accepting the smears as probative evidence that Hicks made contact with plaintiffs' car during the incident, there is no showing the impact was significant or the proximate cause of plaintiffs’ injuries. On the contrary, the impact, if any, of Hicks with plaintiffs was unnoticed and slight and the evidence tended to show plaintiffs were injured in the broadside collision with Williams' car. Appropriate here is the following statement of our Supreme Court in Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600, 608[11, 12] (1937):

The mere fact that injury follows negligence does not necessarily create liability. The burden of establishing by substantial evidence appellants’ negligence as charged and the necessary causal connection between such negligence and the injury alleged rested upon respondent. And, if the evidence merely established that the injury might have resulted from several causes for some but not all of which appellants were liable, the necessary causal connection remained in the realm of conjecture and speculation and respondent’s case failed.

See also Kane v. Chicago, Burlington and Quincy Railroad Co., 271 S.W.2d 518, 521[2] (Mo.1954), cert. denied 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738 (1955). Similarly, plaintiffs “upon whom the burden of establishing the essential element of causal connection is cast ... do not carry their burden by leaving that essential element in the nebulous twilight of speculation, conjecture and surmise.” Hildreth v. Key, 341 S.W.2d 601, 606[8, 9] (Mo.App.1960).

While as noted we must review the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to plaintiffs, it has been stated, appellate courts cannot “imagine the existence of evidence, when none in fact exists, or supply missing evidence, to flesh out an otherwise insubmissible case, nor can it spring inferences from nowhere upon which to predicate submissibility.” Wallander v. Hicks, 526 S.W.2d 848, 850[2] (Mo.App. 1975). In the case at bar, while the evidence must have been sufficient to permit the jury to infer the Hicks’ car contacted plaintiffs’ there was no evidence from which the jury could determine the force of the impact or that any of plaintiffs’ injuries were the result of that impact. Thus plaintiffs left the crucial element of causation in the realm of speculation and no submissive case was made. The trial court properly sustained defendant Hicks’ motion for directed verdict.

Plaintiffs obliquely suggest that the court’s erroneous action sustaining the directed-verdict motions prejudiced plaintiffs’ case in the eyes of the jury, requiring reversal as to all other defendants. We do not agree. It is essential that if juries are to know what is to be considered and decided, they must be properly advised of rulings on motions to dismiss and as stated by the court in Elmore v. Kansas City, 333 S.W.2d 795, 798[3] (Mo.App.1960), “we are aware of no ruling taking the view that it effects juries prejudicially [to so advise them verdict-directing actions] in instances where another defendant thereafter remains in the case.” As to the ruling on defendant Hicks’ motion there can clearly be no prejudice. However, the erroneously directed verdict in favor of Williams is more troublesome. We have reviewed all of the evidence as to the other two defendants and find the verdicts amply supported. Further, the evidence as to Dollinger was different from that as to Williams. The evidence as to defendant Modglin was both different from and inconsistent with that against defendant Williams. Thus even though the directed verdict was erroneous, it could not have prejudiced and may have aided plaintiffs’ case as to the other defendants. The judgment need not be and is not reversed as to all defendants.

Appellants’ third point alleges that the trial court allowed defense counsel to interfere with the orderly presentation of plaintiffs’ case, made comments on the weight and credibility of the evidence, criticized plaintiffs’ counsel and misstated the evidence. To review each instance would greatly lengthen this opinion and add little of precedential value. Suffice it to say we have reviewed each instance and reading the transcript as a whole, conclude the trial court behaved with commendable reserve in dealing with the repeated errors of plaintiffs’ counsel brought to light by the various defendants. In light of the complex issues and multiple parties, there was the inevitable overlapping, inconsistencies and confusion in the evidence. This was to be expected and required some sorting by the court but we do not believe plaintiffs were treated unfairly or the presentation of their case prejudicially disrupted.

The single possible instance of the trial court’s misstatement of the evidence occurred when the court stated that the expert witness had said that he could not make any comparisons of one set of paint samples. In fact the witness had said that the paint was very similar but the sample was too small to be spectroscopically matched. This mistake falls far short of reversible error and such evidence goes to defendant Hicks against whom plaintiff otherwise failed to make a submissible case rendering the error if any harmless. In any case plaintiffs did not object to the statement when made and thus has not preserved it for review. Rule 84.13(a) V.A. M.R.

Finally, plaintiffs argue the court erred in permitting plaintiffs’ witness, the Highway Patrolman, to testify on cross-examination from his report, that the vehicles involved were skidding, when in fact he did not observe the accident.

Defendants Williams and Modglin argue that plaintiffs had elicited favorable hearsay testimony from the patrolman on direct examination and his hearsay testimony to the effect the report showed that all cars were “skidding” was admissible under the doctrine of curative admissibility. See Young v. Dueringer, 401 S.W.2d 165, 167-68[1] (Mo.App.1966). Ordinarily the use of curative evidence of the character offered here rests within the sound discretion of the trial court and we see nothing in this record which justifies reversal of the trial court’s exercise of that discretion in admitting the evidence offered.

While there appears to be merit in defendants’ contention that the evidence they sought to introduce was of the same hearsay character as that offered by the plaintiffs, most significantly its admission was not harmful to plaintiffs. The evidence seemed to show that all cars were skidding, there was no contrary evidence and this fact does not appear inconsistent with plaintiffs’ theory of the case. Plaintiffs’ point is denied.

The judgment is reversed and cause remanded as to the defendant Williams, affirmed as to all other defendants.

WEIER, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge

(dissenting).

I respectfully dissent from the majority’s holding that plaintiffs’ made a submissible case against defendant Jacky Williams. The evidence indicated that defendant Williams was traveling at thirty-five (35) miles per hour or fifty-two (52) feet per second when he first saw the Cato automobile crossways in the road sixty feet ahead of him and the car was sliding back towards him. Assuming that Williams reacted normally to the danger presented, in three-fourths of a second his automobile would have travelled 39 feet. Although Williams immediately applied his brakes in an effort to avoid the accident, his automobile slid on the snowy pavement into the sliding Cato vehicle. Thus, it appears under the circumstances then existing, the majority opinion correctly found that the Williams automobile could not have stopped within the remaining 21 feet so as to avoid the accident. On the other hand the majority, without any evidence, concluded in the emergency situation confronting defendant Williams that Williams had sufficient time and distance, after discovering the Cato automobile, to have avoided the accident by swerving his automobile. At best defendant Williams’ statement that, “. . .1 assume I could have gotten around, I mean there was room to get around but putting on my brakes I slid into him” is highly speculative as to whether Williams could have avoided the accident with the on-coming, sliding Cato vehicle, by swerving. No evidence was adduced by plaintiffs as to how long or far it would have taken defendant Williams to swerve his automobile so as to avoid the accident. Consequently, taking into consideration the snowy condition of the road, the sliding movement of the Cato vehicle towards defendant Williams’ automobile, and the fact that Williams had less than a half of a second to take some evasive action, I find no evidence to support a case against Williams. Therefore, I would affirm the judgment of the trial court sustaining defendant Williams’ motion for a directed verdict because of the failure of plaintiffs to make a submissible case against him.

      . Defendant Williams testified that he was following a truck and that the truck pulled over into the left-hand lane revealing plaintiffs’ automobile sliding sideways in the lane before him. None of the other witnesses, however, remembered the truck and the jury need not have believed defendant’s version of these facts. However, whether Williams was following plaintiffs or a truck immediately behind plaintiffs does not alter the outcome.

      . On direct examination plaintiffs’ counsel inquired of the Highway Patrolman whether his report showed that any statements had been made of the plaintiff William Cato thus calling for a self-serving statement and hearsay testimony for the benefit of the plaintiff. The Highway Patrolman testified that Cato had stated: “He slid across the road and hit us.” He then asked for further hearsay testimony and from his report the officer testified that plaintiff had stated a car hit his car and kept on going.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Glenn Gary MITCHELL, Petitioner-Respondent, and Sharon Kay Mitchell, Respondent-Appellant.
    No. 36771.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 26, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Shaw, Howlett & Schwartz, Joseph How-lett, Clayton, for respondent-appellant.
    Zimbalist & Schramm, Chaim H. Zimbalist, Clayton, for petitioner-respondent.
   KELLY, Judge.

Sharon Kay Mitchell, respondent in the trial court, takes this appeal from an order of the St. Louis County Circuit Court granting a decree of dissolution of her marriage with Glenn Gary Mitchell, the petitioner in the trial court. (To avoid confusion, the parties shall hereinafter be identified by the party label employed in the trial court.) The sole issue on appeal is whether there is sufficient evidence to support the order of the trial court finding that the marriage is irretrievably broken and granting the decree of dissolution. We reverse.

Review, on appeal, of a court-tried case is governed by Rule 73.01 V.A.M.R. and the case of Murphy v. Carron, 536 S.W.2d 30, 32[1 — 3] (Mo. banc 1976). The decree or judgment of the trial court must be sustained unless there is (1) no substantial evidence to support it, (2) unless it is against the weight of the evidence, (3) unless it erroneously declares the law, or (4) unless it erroneously applies the law. “Appellate courts,” the court said in Murphy, supra, “should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

Petitioner’s petition in this case alleged, in addition to the residency of the parties, their marriage, their separation on October 20, 1973, the birth of two minor children of the marriage and that they were in the custody of the respondent, that respondent was not then pregnant, that there is no reasonable likelihood that the marriage of petitioner can be preserved, and is therefore irretrievably broken. He prayed that the marriage be dissolved.

Respondent’s Answer admitted the allegations of the petition with respect to residency, the date and place of the marriage, that she and petitioner had not lived together on a continuing basis since on or about October 20, 1973, and the fact that two minor children were born of the mar-' riage and were in her custody. She further alleged that although she and petitioner have not lived together on a continuing basis since about October 20, 1973, he left without her consent and she at all times has desired, and at the time of the separation did desire to continue cohabitating with him. She denied the allegation of his petition that there was no reasonable likelihood that the marriage could be preserved and was irretrievably broken.

The evidence consisted of the testimony of the petitioner and the respondent, both during the petitioner’s case in chief and some documentary evidence not germane to the question before us. The parties were married in Decatur, Illinois on August 18, 1962, but have been residents of Missouri for more than the period prescribed by § 452.305(1), Laws 1973, p. 470, § 2. At the time of the marriage petitioner was 21 years of age and respondent, 22.

Petitioner’s evidence was that his marriage, in his opinion, was irretrievably broken because there was no likelihood that his marriage could be preserved. The basis for his conclusion that the marriage was irretrievably broken was that for three years he has felt that he no longer loves his wife. They have been separated on two occasions; the first time, between October of 1972 to May of 1973, and again from October 1973, to the date of trial. It was he who left home on each occasion. They had undergone counseling prior to the first separation with the family physician, a psychiatrist, a priest, a minister, friends and family. He cannot continue married life with the respondent.

Petitioner admitted on cross-examination that during his periods of separation he had associated with women other than his wife and on one occasion had intercourse with one of the women. He admitted that when he returned home in May, 1973, he resumed marital relationships with respondent, and maintained the “husband-wife father-children” relationship until he left the marital home the last time in October, 1973.

Respondent testified that between 1973 and 1974 she and petitioner had “quarrels” about normal husband and wife things— “No big thing.” She was dissatisfied with petitioner’s role as a husband around the home because he said he would do things and then he would not do them. She had guests at the home when they could afford it, but they could not afford to have guests often. They had guests at home more frequently than once every three months. She never refused to have friends over to the house and was happy entertaining when they had the money, but they had financial troubles throughout their married life. Petitioner managed the money throughout the marriage and was still managing it. They made “ecology boxes” together with another couple about once a week. This was done at night after petitioner came home from work. Prior to their first separation petitioner had to be at work by 7:30 a. m. As a consequence they would retire between 10 and 12 p. m. On occasion, when she was sewing for the children and had a deadline to meet, he would retire before she did. They had some late night discussions over problems with the children, on normal husband and wife problems, and normal every day happenings. She did not feel that she had enough help with the children’s disciplining because petitioner was at work so much of the time. He said that it was necessary that he be at work so much, and she accepted this.

About five years ago, for the first time, she realized something was wrong with the marriage but she did not know what it was. She concluded that the children and she were not as important to the petitioner as they had been. He did not want to be home. He had to attend dinner meetings and “things” with General Motors, his employer, and she was not included in these activities. He told her she was not welcome at these dinners. She became ill and lost 25 pounds. She went to her family physician who gave her all of the help he could. Petitioner came home one night from work and told her that some of the girls at work went to a psychiatrist for their problems, and suggested that she consult him. She did. After respondent saw the psychiatrist, he wanted to see the petitioner. Petitioner went to see the psychiatrist and respondent returned to his care also. After a time the psychiatrist told her he wanted to see the petitioner again, but petitioner would not go see him this time. The psychiatrist referred respondent to his brother who was a marriage counselor and both she and petitioner went to see the marriage counselor a number of times between May, 1972, and October, 1972. She talked with one priest initially when she began to suspect a problem with the marriage and then again on another occasion with another priest in Springfield, Illinois, to ascertain where she stood with her church. She also talked with a minister.

After petitioner returned to his familial role in May of 1973 he continued to remain away from home. He always had a dinner meeting, or a golf game, or another job. When he did come home it was late at night, or he only came home when it involved the children. He said, “he was going to try.”

She believed the marriage could be preserved because petitioner had left before, returned and resumed marital relations with her and took up his place in the home. With respect to his sexual relations with the other woman, although she had heard about it, when she questioned petitioner, he told her that it was a rumor and untrue. She believed him until she heard him testify at the hearing; however, she believed he was just sowing some wild oats in that relationship.

His educational background is that he is three hours short of obtaining a college degree. In college he majored in economics. Respondent is a high school graduate, having taken a course “on the business line,” including a high school bookkeeping course.

Petitioner’s work background was that he was employed for the year prior to the hearing on his petition with a contracting company “in the sales aspect of selling home improvements and obtaining leads to do the same” on a commission basis. Prior to that he had been employed by the General Motors Parts Division for seven years. He left that employment on a leave of absence because he was becoming dissatisfied with the job for the last three years of his employment there; his status with the company was remaining the same, and he saw no future. He left General Motors Parts Division “for personal reasons.” Pri- or to that he had been employed by Chevrolet Motor Division for four years. While he was working for General Motors Parts Division he was also employed by a golf club on a part time basis as assistant manager for a period of two years working 30 to 35 hours per week during the summer and 5 to 8 hours per week during the winter.

Respondent, after graduating from high school, was employed by Sears-Roebuck in the credit office doing sales and billing. She terminated this employment in 1963 when she became pregnant with her daughter and has not been employed out of the home since then.

She testified that she does not read books or the newspapers, but she does “thumb through magazines.” She plays no musical instruments. Her hobbies include the making of ecology boxes with her husband, as previously mentioned, working with ceramics and dough art. She is a voluntary physical education teacher at the school the children attend and she does share in the activities of the Campfire Girls in which her daughter participates. She makes most of her own clothing as well as that of the daughter; she makes some clothing for the son, but not much. Her recreation is enjoyed mostly with the children. She takes them to shows about once a month; bowling, probably less than once a month, when the children want to bowl; fishing; and ice-skating during the winter, about once a month, unless another mother takes the children.

Respondent has no special training other than that which she obtained in high school.

At the conclusion of the evidence respondent’s counsel moved for a judgment in her behalf for the reason that the evidence failed to establish the basis for a dissolution of marriage under the provisions of § 452.-320.2 because there was no evidence that respondent had committed adultery, that she has behaved in such a way that petitioner cannot be reasonably expected to live with her, that she had abandoned the petitioner, that they have lived separate and apart twelve months immediately before the filing of the petition, or that they have been separated twenty-four months immediately prior to the filing of the petition. A colloquy between the trial court and counsel ensued, in which the trial court advised counsel that having heard the parties and observed them, and giving due weight to their testimony, it thought that the marriage was irretrievably broken and there is no reasonable likelihood that it may be preserved. The trial court felt that the parties had made every effort to try to reconcile by going to counselors, a psychiatrist, and respondent to priests and ministers; that it was the clear intent of the Legislature in the enactment of the present Divorce and Marriage Act, which no longer contained the word “divorce,” that where a situation has arisen, without trying to place fault on “A” or “B,” the law recognizes that they cannot be forced to cohabit and live together. It was the trial court’s opinion that if the parties demonstrate in their testimony that they are really irreconcilably situated at the time, the Legislature recognizes that fact. The inability of the trial court to make people happy in matrimony was decried and although the court could send them to marriage counselors and make them go through what they have already gone through, it saw no reason for doing so. The cause was then taken as heard and submitted. No request for findings of fact or conclusions of law was made by either party and none were made by the trial court. Shortly thereafter the decree of dissolution was entered.

Both parties are in agreement that one basis for the trial court’s finding that the marriage was irretrievably broken in this contested case, is subparagraph 2(l)(b) of § 452.320, Laws 1973, p. 470, § 5, “[t]hat the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” (Emphasis supplied). However, they do not agree on the requisite scope of the inquiry by the trial court in ascertaining whether the parties’ marriage is irretrievably broken. Petitioner takes the position that the sole issue in this case is whether this marriage is irretrievably broken and if it is then the trial court did not err in granting the dissolution decree. Respondent, on the other hand, argues that in order for the trial court to make a finding that the marriage is irretrievably broken, where the respondent denies that it is, there must be substantial evidence of wrongdoing on the respondent’s part so that the petitioner cannot reasonably be expected to live with her. She contends that there is no evidence in this record of any wrongdoing on her part and that the only evidence in the case for the petitioner’s conclusion that the parties’ marriage is irretrievably broken is his testimony that he no longer loves her.

The evidence petitioner contends supports the trial court’s finding that the marriage is irretrievably broken is the following:

1) respondent recognized five years prior to the filing of his petition for dissolution of the marriage that there was something wrong with the marriage,
2) while petitioner was attending dinner meetings with General Motors, his employer, respondent was not included,
3) respondent did not read newspapers or books or attempt personal growth by belonging to a church, civic or women’s group,
4) when petitioner returned home after a long day’s work, respondent would bring up problems late at night,
5) the marriage relationship continued to deteriorate,
6) petitioner maintained a steady course of employment and supported the family while the respondent was confused and needed help,
7) to assist respondent, petitioner suggested psychiatric help and on advice of the psychiatrist undertook professional marriage counseling with respondent,
8) respondent sought other help, but despite all this the marriage did not improve and it continued to weaken and break apart until a separation followed between October, 1972, and May, 1973,
9) during the separation the petitioner occasionally dated and had one affair, and
10) after petitioner returned nothing changed and after six months petitioner realized that he could not continue to live with respondent.

So far as we have been able to ascertain, this is the second case in which this question has been presented to the appellate courts of Missouri since the adoption of the Divorce Reform Act passed by the 77th General Assembly in 1973. There is today in Missouri one ground for the granting of a decree dissolving a marriage, and that is where the trial court finds that there remains no likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken. § 452.305.1(2). While the thrust of the Divorce Reform Act is pointed towards marital breakdown and the elimination of the “fault concept” in the resolution of marital problems experienced by couples whose marriages are deteriorating, it is not a true “No Fault” form of legislation, as one may readily discern from a reading of the Act in its entirety.

Unlike other states which have adopted the “no fault” concept of divorce reform laws the General Assembly of Missouri clearly did not enact a total “no fault” dissolution law. Rather, our General Assembly adopted a “modified no fault” dissolution law. In those jurisdictions where the true “no fault” dissolution law is in effect all that needs to be shown to authorize the entry of a decree of dissolution is that the marriage is “irretrievably broken.” In most “no fault” laws the term “irretrievably broken” is left undefined and no definitive standards or guidelines are given to control the dissolution process and consideration is given to each case individually. The key issue for the trial court’s determination is whether there exists a reasonable possibility of reconciliation and the marriage as a whole is considered in making this determination. All that the trial court must find from the evidence presented at the hearing on the petition is that the parties can no longer live together because of difficulties so substantial that no reasonable efforts could reconcile them. Flora v. Flora, 337 N.E.2d 846 (CA Ind., 1975). Where the objects of the marital relationship are destroyed to such an extent that it seems improbable that the couple will again resume the relationship of husband and wife, in those states having a true “no fault” dissolution law, the marriage is irretrievably broken and this is a determination to be made under the particular statute by the trial judge on the basis of all of the facts and circumstances, and the factors underlying the determination made will necessarily vary in each case depending upon the mutual tolerance or lack of tolerance of the spouses. In re Marriage of Franks, 542 P.2d 845, 851[12] (Colo, banc 1975).

However, we conclude that in enacting the Divorce Reform Law of this State, the Missouri General Assembly had in mind the effect on society the breakdown in marriages has had and, unlike those jurisdictions where the legislatures have enacted true “no fault” dissolution laws, intended that a spouse, who by his or her actions makes the life of the other spouse intolerable or whose behavior makes it unreasonable for the marriage to be expected to continue, should not profit by his or her own wrongdoing and thereby obtain a dissolution of the marriage over the objection of the other perhaps innocent spouse. This intention is evidenced, we think, by the establishment of guidelines within the Law itself for trial courts of this State in two different situations. The first is where the marriage partners have stated under oath or affirmation that their marriage is irretrievably broken, or where one of the parties has so stated and the other has not denied it. That situation is governed by § 452.320.1. The other, is where the other partner has denied under oath or affirmation that the marriage is irretrievably broken, in which instance § 452.320.2 is applicable. It is this latter circumstance that we have here under consideration.

When one of the partners to the marriage has denied that the marriage is irretrievably broken the trial court is required to consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and, after hearing the evidence, make a finding whether or not the marriage is irretrievably broken. However, “in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of” five facts. (Emphasis supplied). Of these five facts which the petitioner must satisfy the trial court in order for it to find that the marriage is irretrievably broken, three are couched in terms which involve wrongdoing by the respondent which causes the trial court to find under subsection (a) that petitioner finds it “intolerable” to live with the respondent or, under subsection (b) that petitioner cannot “reasonably be expected to live with the respondent.” The first wrongdoing which will support a finding under this guideline is adultery committed by the respondent; the second, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; and the third, abandonment of the petitioner by the respondent for a continuous period of at least six months preceding the presentation of the petition.

Alternatively, in the absence of any “wrongdoing” on the part of the respondent, the trial court may then find the marriage is irretrievably broken if it is satisfied by petitioner’s evidence (1) that the parties to the marriage have lived separate and apart by mutual consent for a continuous period of at least twelve months preceding the filing of the petition or (2) that they have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition.

The last time these parties separated was October 20, 1973. This petition for dissolution of marriage was filed on July 24, 1974. A period of nine months had intervened and there is no evidence that the respondent consented to the separation. Therefore, there is no evidence upon which the trial court could have based its finding of fact under § 452.320.2(l)(d) or (e) that the marriage is irretrievably broken.

Likewise, there is no evidence that the respondent has committed adultery, nor that she has abandoned petitioner for a continuous period of at least six months preceding the presentation of the petition.

The only remaining “fact” upon which the petitioner had the burden of satisfying the trial court that the marriage was irretrievably broken is that respondent has behaved in such a way that he cannot reasonably be expected to live with her. His sole reason for his inability to live with respondent was that he no longer loved her. He specified no behavior on her part which caused him to arrive at this conclusion. He did relate their efforts at marriage counseling and his return to the home to see if the marriage could be revitalized, and then his subsequent leave-taking. That there was something wrong with the marriage was recognized by the respondent and she undertook to find out what it was. It was she who first undertook to discern what was at the base of their difficulties and went to her family physician. While the petitioner consulted with the psychiatrist on one occasion, he later refused to return when so requested. From this evidence we conclude that it was the wife, rather than the husband, who undertook to preserve the marriage. It was he who advised her that she was not welcome at the dinners sponsored by his employer. All of the evidence is that here was a mother who was burdened alone with the child-rearing of the minor children of the family, whose discussions concerning the children were categorized by petitioner’s counsel as “quarrels” when never once during petitioner’s testimony did he complain that it was these “quarrels” or “discussions” which made it unreasonable to expect petitioner to live with the respondent. We find in the record no complaint from the petitioner that his wife’s failure to read the newspapers or books was a behavior trait which contributed to the downfall of the marriage. Nor, are we impressed with petitioner’s argument on appeal that respondent, after petitioner’s return, failed to recognize that the manner in which the parties functioned would have to change in order for there to be a likelihood for the marriage to be preserved. We note that the evidence is clear that after petitioner returned he did not change; he continued attending his company dinners at which respondent was unwelcome. The behavior in this record which would make it unreasonable to expect one of the parties to live with the other is essentially petitioner’s not respondent’s.

This marriage may well be beyond saving, and in holding as we do that there is not sufficient evidence in this record to support the finding of the trial court that this marriage is irretrievably broken within the terms of § 452.320.2(1) we are but delaying the inevitable; nevertheless, we as an appellate court, construe and apply the law, we do not make it. It is commonly recognized that the Divorce Reform Act of this State is not, and was not meant to be, a true “no fault” dissolution law. This case is one of those which does not fit in the category of those cases under § 452.320.1 which are more closely akin to the “no fault” concept.

We hold that under the evidence in the record before us the trial court erred in finding that the marriage of these parties was irretrievably broken where the respondent denied that it was in accordance with the provisions of § 452.320.2(l)(a) through (d) and reverse the decree of dissolution entered thereon.

WEIER, P. J., and McMILLIAN, J., concur.

      . “Quarrels” was the word used by petitioner’s counsel in his question and adopted by respondent initially; however, throughout the greater part of her testimony she insisted the word “discussions” was more appropriate to these husband and wife conversations.

      . All references to Ch. 452 RSMo are to Laws 1973, p. 470, § 5.

      . The first case was Nichols v. Nichols, 538 S.W.2d 727 (Mo.App.1976).

      . Ariz.Rev.Stat. § 25-312 (1973 Supp.); Calif. Civ.Code § 4506 (1970); Fla.Stat. §§ 61.031, 61.044, 61.052 (1971); Iowa Code Ann. § 598.17 (1974-75 Supp.); Ky.Rev.Stat.Ann. §§ 403.110, 403.130, 403.140, 403.150, 403.170 (Laws 1972 S.B. 133); Wash.Rev.Code Ch. 26.09.

      . Even in those jurisdictions having true “no fault” dissolution the mere fact “I want out” is not recognized as a basis for dissolution. See: Ryan v. Ryan, 277 So.2d 266, 271 (Fla.1973); Flora v. Flora, supra.

      . See: Dissolution of Marriage Under Missouri’s New Divorce Law, 29 J.Mo.Bar 495 (1973).

      . For other cases see Anno. Validity, construction and effect of “No Fault” divorce statute providing for dissolution of marriage upon finding that relationship is no longer viable. 55 A.L.R.3d 581.

      .Petitioner filed a Motion to Affirm Judgment requesting this court to affirm the judgment of the trial court on the ground that as of October 20, 1975, the parties lived separate and apart for twenty-four months and therefore were he to file a new suit for dissolution of the marriage the provisions of § 452.320.2(1) (e) would be satisfied requiring the trial court to grant the decree of dissolution. That motion has been denied.


author: ALDEN A. STOCKARD, Special Judge.

text:
    HERMAN GLICK REALTY CO., a corporation, Appellant, v. ST. LOUIS COUNTY, Missouri, Respondent.
    No. 37861.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 26, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      David G. Dempsey, Shifrin, Treiman, Bamburg & Dempsey, St. Louis, for appellant.
    Thomas W. Wehrle, County Counsel, Robert H. Grant, Associate County Counselor, Clayton, for respondent.
   ALDEN A. STOCKARD, Special Judge.

This is an appeal by plaintiff from an adverse ruling in its action for a declaratory judgment that the “Non-Urban” classification of its land under the Comprehensive Zoning Ordinance of St. Louis County is void for the reason that such classification constitutes an abuse of discretion and infringes on various constitutional guaranties of the owner of the land. We reverse and remand with directions.

Appellant owns an unimproved tract of land consisting of 1.515 acres located on the northwest corner of Manchester and Mason Roads in St. Louis County. It has a frontage of 218.72 feet on Manchester Road and a depth along Mason Road of 268.75 feet. At this intersection Manchester Road is a four lane state highway with a large volume of traffic. Mason Road is a two lane county street referred to in the testimony as a “collector” street, and this intersection is one of the busiest in St. Louis County.

The land fronting on Manchester Road and to the west of appellant’s land for a distance of approximately 600 feet is zoned for commercial use (C-2). The actual uses of this land are (1) a Wonder Bread outlet and distribution center, (2) an A & W Drive-in restaurant specializing in the sale of hamburgers, (3) a Long John Silver sit-down restaurant featuring fish, and (4) a drive-in Steak-N-Shake restaurant featuring hamburgers as its principal item. To the east across Mason Road there is a tract of land substantially smaller than that of appellant’s that is zoned Non-Urban, but the tract adjoining it on the east is zoned Planned Commercial District (C-8) for use as a service station, and to the east of that it appears that the first tract is zoned Non-Urban and the second is zoned Planned Commercial District (C-8) for use as a barbershop. Across Manchester Road on the south side and extending westward from the intersection of Manchester Road and Barrett Station Road for approximately 3500 feet, with the exception of one tract which is vacant and is zoned Non-Urban, the entire frontage is zoned for commercial or industrial use, but all the uses are commercial. The tract of land to the north and immediately behind appellant’s land is zoned for a multi-family condominium development. It is thus apparent that appellant’s undeveloped tract of land lies in a highly commercially developed area located on the corner of an intersection where there is a large volume of traffic.

Section 1003.107 of the Revised Ordinances of St. Louis County sets forth the “purpose” of the classification of the Non-Urban Zoning District as follows:

“The ‘NU’ Non-Urban District of St. Louis County encompasses areas within which rough natural topography, geological conditions, or location in relation to urbanized areas creates practical difficulties in providing and maintaining public roads and public or public-utility services and facilities, and also encompasses areas in which significant non-urban uses have been established. The purpose of the ‘NU’ Non-Urban District regulation is to guide and coordinate development in the unincorporated portions of St. Louis County in order to secure the appropriate development of the physical environment * * * »

Mr. John Baggs, the Director of Planning for St. Louis County, testified that the classification of Non-Urban “was applied to much of the land for which [in 1965] the Planning Commission and/or the Council did not foresee at that time a definite zoning category putting it into residential, industrial or commercial zoning,” and that the classification had been referred to as placing land in “cold storage” or as a “holding zone.” He also testified that appellant’s land did not contain any of the physical conditions referred to in § 1003.107, and that in the development of the land there would be only “minimal” topographical problems which could be solved. He also agreed that Non-Urban zoning was not a classification of appellant’s land for its highest and best use, and he stated that in his opinion it should be zoned “in the commercial category, that permitted a low intensity” type of use.

By reason of the limited permissible uses of land zoned as Non-Urban (which includes such activities as farming, hunting and fishing, churches, public or private schools, to name but a few), and the limitation in the zoning ordinances as to the minimum area on which the Non-Urban permitted activities may be operated, the only permissible uses of appellant’s land are for the construction and operation of (1) a fire station (and one exists in the immediate neighborhood), (2) a nursery school (on one of the most highly traveled intersections in St. Louis County), and (3) a local public utility facility (for which no one contends there is a need). Even the use of Non-Urban zoned land for a dwelling house requires a minimum of three acres.

During the trial, over the objection of appellant, evidence was received that prior to the filing of this suit Metropolitan Ponderosa, Inc., by virtue of a contract to purchase appellant’s land conditioned upon its being rezoned, applied to have the land rezoned to Planned Commercial District C-8 to construct thereon a steak house, or a “sit-down” restaurant. That application was denied by the St. Louis County Council. The record does not disclose the reason. There was no petition filed for a judicial review of that denial.

The trial court found that “Plaintiff filed a petition to rezone said parcel to ‘C-8’ Planned Commercial District for the purpose of constructing a ‘Ponderosa’ Steak House; ” that “the highest and best use for this property is a low intensive [intensity?] use” and is “not NU Non-Urban,” but the “particular use proposed by Plaintiff is not consistent'with good planning practice because of site and traffic problems which would be generated by this particular use at peak hours on Manchester and Mason Roads, because of the proximity of the particular use to residentially zoned areas and because of the existence of the many eating establishments in the proximity.” The trial court then concluded that “The decision of the St. Louis County Council * * * to deny Plaintiff’s petition to rezone the subject parcel to a particular ‘C-8’ use, was not arbitrary nor unreasonable.”

We deem it necessary to mention here that (1) it was not appellant who filed the petition to have the property rezoned to C-8 for the construction and operation of a steak house; that (2) this action brought by appellant is not an appeal from nor does it seek a review of the action of the St. Louis County Council in denying the petition filed by Metropolitan Ponderosa, Inc.; (3) there is no evidence of any “particular use proposed by plaintiff” for the land, and (4) the only evidence pertaining to that petition to rezone the property came in over the objection of appellant. It is apparent that the trial court did not rule on either of the two issues presented by the pleadings in this case; (1) that the zoning classification of Non-Urban as to appellant’s land is illegal and void, and (2) that the court should direct that the land be zoned commercial, and particularly as C-2.

Reference should now be made to at least some of the commercial zoning provisions. There are seven commercial classifications designated C-l through C-7. Appellant contends that his property should be zoned C-2 which encompasses areas “wherein may be located such stores and service facilities as will provide a wide range of those goods and services usually used, consumed or needed in the home or by individuals.” It is provided that “it is the purpose of these [C-2] regulations to facilitate the establishment of conditions suitable for the operating of small business catering to the general public.” There are nine categories of “permitted” land uses within this district, the first of which includes “Stores; shops; service facilities; including automatic vending facilities; markets; offices; recreational facilities, excluding drive-in theaters, golf practice driving ranges and outdoor swimming pools; restaurants and associated work and storage areas required to carry on business operations in which goods and services of any kind are offered for sale or hire to the general public on the premises * * * »

The classification C-8 Planned Commercial District “encompasses areas wherein may be located developments and uses permitted in any of the other “ ‘C’ Commercial Districts.” It is then stated in the regulation, somewhat inconsistently, that the purpose is “to facilitate the establishment of combinations of developments and uses for which no provision is made in any other ‘C’ Commercial District.” In this respect it establishes a separate classification for uses not otherwise authorized. It is also stated that another purpose is “the establishment of developments and uses [authorized by C-l through C-7] where it would be appropriate to the area if it were to take place under approved site plans and conditions necessary to protect the general welfare.” Mr. Baggs testified, in effect, that the St. Louis County Council does not approve a change to C-8 unless certain conditions (not set out in the regulations but presumably created by the Council for each tract of land) are met, and that those conditions “may be more restrictive or less restrictive than one of the requirements in a similar district [C-l through C-7] for which that use is permitted” and that these conditions always call for a “preliminary development plan,” but there is no explanation as to what this would include. As previously noted, we do not know why the application of Metropolitan Ponderosa, Inc. to have the land zoned C-8 for the purpose of constructing a steak house thereon was turned down. No reason is given by the County Council when an application is denied; a most undesirable practice. An applicant should, at least, be entitled to know the basis for an adverse ruling. Mr. Baggs, the County’s only witness in this case, attempted to justify the action because of its effect on the traffic (but he admitted that his proposed use of the land for a small office building would have a greater adverse effect on traffic during peak hours), and because in his opinion another restaurant in the neighborhood was not needed, which is another way of saying that the restaurants already there should be protected from competition.

One further matter should be mentioned. During the cross-examination of Mr. Baggs he stated that the St. Louis County Council had “recently passed an ordinance approving a land use plan for St. Louis County.” This clearly implies that a rezoning has occurred. But, he then added that under that plan it was “proposed” that appellant’s land be zoned for “commercial development,” and that the Planning Commission had “recommended to the County Council that [appellant’s land] be commercial.”

We cannot tell from this testimony whether the County Council has in fact zoned the land commercial, and if so in which of the eight categories it was zoned, or whether such zoning has only been proposed, but from the County’s brief it is clear that it insists that this court should not disturb the Non-Urban classification.

A zoning ordinance may be valid generally, yet invalid in its application to a specific tract. Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771 (1952); Huttig v. City of Richmond Heights, 372 S.W.2d 833, 838 (Mo.1962). The applicable rules are concisely stated in Vatterott v. City of Florissant, 462 S.W.2d 711, 713 (Mo.1971) as follows: “Whether the classification and enforcement of a zoning ordinance is reasonable and constitutional or whether it is arbitrary and unreasonable and therefore unconstitutional in its application to a specific property depends upon the evidence and the facts and circumstances of each case. * * * The legislative body has the duty to determine the use classification for any particular area. Unless it appears that the determination by that body is arbitrary and unreasonable, the court cannot substitute an opinion for the council’s determination. If the council’s action is fairly debatable, the court cannot substitute its opinion. The legislative body’s enactment is clothed with a presumption of validity, and he would challenge the reasonableness of the ordinance as applied to specific property has the burden of proving unreasonableness.” See also Desloge v. County of St. Louis, 431 S.W.2d 126 (Mo.1968); Downing v. City of Joplin, 312 S.W.2d 81 (Mo.1958).

It is apparent from the evidence that the St. Louis County Council has applied to appellant’s tract of land a zoning classification which its only witness admits does not fit the physical characteristics of the land, apparently for the purpose of “holding” it in its undeveloped status without consideration of its relation to neighboring property or its best and highest potential use, and which, for all practical purposes, results in it not being available to appellant for any profitable use. This is further evidenced by the testimony that as presently zoned the land is worth $7,500. but if zoned for general sales or service commercial use the value would be $165,-000. As stated in Tealin Company v. City of Ladue, 541 S.W.2d 544 (Mo. banc 1976), the effect of zoning on value is not decisive, but “it is certainly an element to be considered, particularly in ascertaining the relationship of the zoning to the public welfare.” Huttig v. City of Richmond Heights, supra at p. 840.

In Huttig v. City of Richmond Heights, supra at p. 841, the Supreme Court of Missouri quoted with approval from Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427 (1931) as follows: “ ‘Certainly an ordinance is unreasonable which restricts property * * * to a use for which the property is not adapted, and thereby destroys the greater part of its value in order that the beauty of the village as a whole may be enhanced. In such case the owner of the property cannot be required to ask as a special privilege for a variation of the restriction. The restriction itself constitutes an invasion of his property rights.’ ” The court then cited numerous cases to the effect that property may not be so zoned as to prevent any effective use, that such a zoning is unreasonable and arbitrary, and that the effect of a zoning regulation which prevents all effective use is an unlawful confiscation.

The County has referred us to the recent case of Tealin Company v. City of Ladue, supra, and it argues that in this case, as in the Tealin case, “there was a substantial amount of non-commercially zoned land within the vicinity of [appellant’s] property.” We assume reference is intended to be made to the fact that there are several other tracts nearby which are zoned Non-Urban. We consider this to be of almost no importance in view of the provisions of § 1003.107, previously set forth, pertaining to the physical characteristics of land which should be zoned Non-Urban, the testimony of Mr. Baggs that the classification has been used by the County Council as a “holding” device, and the fact that the physical conditions of appellant’s land admittedly do not meet the Non-Urban classification. The County has also cited Strandberg v. Kansas City, 415 S.W.2d 737 (Mo.1967), as holding that one challenging a zoning ordinance has the burden to establish that the ordinance is unreasonable, arbitrary, in excess of authority, and a deprivation of property rights without compensation, and Kempf v. City of Lee’s Summit, 504 S.W.2d 167 (Mo.1974), as holding that if the action of a legislative body in zoning property is fairly debatable the courts are not to disturb it. We agree with both cases, but for the reasons above stated, neither is applicable to the facts of this case.

Based upon our consideration of the facts and circumstances, not only as shown by appellant in meeting its burden of proof but as admitted in the testimony offered by the County, we conclude that the maintenance of the present Non-Urban zoning of appellant’s tract of land bears no substantial relationship to the public health, safety, morals, or general welfare; that the public interest and welfare in maintaining the zoning classification of Non-Urban, if indeed any exists, is greatly outweighed by the demonstrated detriment to appellant; that the present zoning is so unreasonable and arbitrary that it infringes upon appellant’s rights under the due process clauses of both the State and Federal Constitutions; that upon this record these questions are not fairly debatable; and that for these reasons the zoning of appellant’s property as Non-Urban is void.

This leaves the question of what the judgment of this court should be other than that the classification for zoning purposes of appellant’s land as Non-Urban is void. Ordinarily it is not the function of the courts to prescribe what commercial use should be permitted on property. Huttig v. City of Richmond Heights, supra at p. 844. However, appellant contends that in view of the circumstances of this case this court should direct that its property be zoned Commercial C-2. The contention is not totally without merit and deserves further consideration.

Appellant’s evidence clearly establishes that its land could properly be zoned C-2. It also presented evidence to the effect that the County actively discourages any commercial zoning except C-8, which purports to grant to the County Council almost unlimited authority to impose conditions as to each piece of property and to deny or grant an application for undisclosed reasons. The evidence indicates, and this came from the County’s witness, that the application of Metropolitan Ponderosa, Inc. to have appellant’s property rezoned C-8 was denied because of a minimal effect on traffic and to prevent economic competition with existing restaurants. This use of the zoning power to prevent competition is clearly an abuse of that power. Forte v. Borough of Tenafly, 106 N.J.Super. 346, 255 A.2d 804 (1969); Lazarus v. Village of Northbrook, 31 Ill.2d 146, 199 N.E.2d 797 (1964). It would be well for the zoning authorities to read carefully the comments in Huttig v. City of Richmond Heights, supra, concerning the consideration to be given to minimal traffic conditions. We necessarily must mention that the validity of the provisions of the zoning ordinance authorizing a C-8 classification, or the action of the County Council taken pursuant thereto pertaining to the application of Metropolitan Pondero-sa, Inc. are not before us for decision in this case. Also, in view of the undisputed testimony of the County’s witness that prior to trial the County Planning Commission recommended to the County Council that appellant’s land be zoned commercial, and that the County Council had “passed” an ordinance approving a land use plan in which it was “proposed” that the land be zoned for “commercial development,” two questions are forcefully presented: Why was the trial of this case necessary, at least as to the issue of whether the Non-Urban classification should be retained, and why does the County now argue strenuously in its brief to this court that the Non-Urban classification should not be disturbed? On the other hand, notwithstanding the above circumstances, this court cannot presume arbitrary or unreasonable future action on the part of the County Council, and it has not yet, as far as the record shows, refused an application of appellant to rezone the land as Commercial C-2.

In these circumstances, with some reluctance, we conclude that we should rule only that the classification of appellant’s land as Non-Urban is void, that appellant’s application that its land be rezoned to commercial usage be granted, and that the matter be remanded to the County Council for proper classification.

The judgment of the trial court is reversed and the cause remanded with directions to enter a judgment in accordance with the views here expressed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. John F. STEINLAGE et al., Exceptions of Tyvern Realty Company et al., Defendants-Appellants.
    No. 37005.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 2, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Richard M. Stout and Rick M. Stout, Kirkwood, for defendants-appellants.
    Bruce A. Ring, Chief Counsel, Jefferson, Richard E. Baker, Asst. Counsel, Kirkwood, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a jury verdict. In 1968, the State Highway Commission condemned for highway purposes, a portion of defendant’s land situated at the intersection of Big Bend Boulevard and Kirkwood Road in St. Louis County. Appointed commissioners awarded defendant $19,000.00 damages. Trial before a jury of exceptions resulted in a judgment entered January 24, 1975, awarding defendant damages of $13,-500 and ordering defendant to refund to relator $5,500 together with interest. We reverse and remand for a new trial.

On appeal, defendant claims error in the admission of certain testimony of Torn McReynolds, an expert witness for the state, and in comments by the state’s attorney during closing argument.

Involved here is a “U” shaped parcel of land located on the northeast comer of Kirkwood Road and Big Bend Boulevard. The total area of this parcel, before any of it was taken, was 21,767 square feet. The shaded portion of the drawing below, hereinafter referred to as the Cook property, did not belong to appellant. Prior to the June 20, 1968, taking, three buildings were situated on the defendant’s property. In addition, there was a building on the Cook property. All three of defendant’s buildings were forty to fifty years old but at the time of the, taking all were rented.

[See Illustration on next page]

As of June 20, 1968, two thousand five hundred eighty-four (2,584) square feet of the property was taken for the new roadway. One of defendant’s buildings, then rented to Hampton Cleaners for $175 per month, was demolished because the new road ran through the middle of it. Also, durihg construction of the road, a temporary easement over an additional 2,459 squi re feet of defendant’s property was taken. Completion of the new road left a triangular-shaped portion of defendant’s land without vehicular access. The triangle was bounded by the building on the Cook property, one of defendant’s remaining buildings and the newly constructed curb-line. It is confusion over valuation of this triangular shaped piece of property that prompts this appeal.

Four experts testified as to their appraisals of the property. The landowner had one expert witness, Ken Hawkinson. He testified that the highest and best use of defendant’s property would be a modern strip shopping center with excellent parking space. Development of such a shopping center would, however, require removal of the existing structures on defendant’s land. Acting on the basis of a study of comparable sales, the specifics of which Hawkinson refused to reveal because of confidentiality considerations, he valued the entire 21,767 square feet of property at $4 per square foot. Early portions of his testimony suggest that this $4 per square foot figure represented only the underlying value of the land itself disregarding the highest and best use of it. Certain responses of the witness during cross-examination, however, create confusion as to whether the figure actually reflected the land value in light of the potential for development as a strip shopping center. The existing structures were valued on an income capitalization basis. Mr. Hawkinson noted that the buildings were quite old but that they were generating some rental income and he opined that the entire 2,459 square feet, once taken by the state as a temporary easement, had been landlocked by the road construction and that the entire area should be included for purposes of computing the loss. The possibility of the landowner maintaining the building bordering on one side of the property, he characterized as a business judgment not subject to change by the state. The loss to the landowner including the property and building was set at $24,420.00.

The principal expert witness for the state was Tom McReynolds. Based on a study of fourteen comparable sales, five of which the witness detailed, he set the land value prior to the taking at $2 per square foot on Big Bend Boulevard and $3 per square foot on Kirkwood Road. The buildings were valued on a cost less depreciation basis. As did the other experts, McReynolds noted that the highest and best use of the entire parcel was commercial. Unlike the other experts, however, McReynolds then testified, over the opposing attorney’s continuing objection, that the testimony was speculative, that the highest and best use and proper development of the property required the destruction of existing structures and the combination of defendant’s property with the Cook property. If the Cook property was unavailable, he noted that the defendant’s existing buildings should still be torn down to build a larger retail facility. McReynolds further testified, over continuing objection that while the landlocked parcel of land — the area of which he set at 1,188 square feet, had no use immediately after the taking, it was unreasonable to assume that this condition would persist forever. Based on the age and condition of the existing buildings, trends of commercial development in the area and the business need for more modern commercial buildings, McReynolds stated that it would be reasonable to assume that the landlocked condition and diminished value of the land would exist for only three years. Applying a three-year diversion factor for a 7% investment return, McReynolds discounted the $3 per square foot land value to $2.45 per square foot for the 1,188 square feet. Compensation for the 1,188 square feet was thus set at 55 cents per square foot. Incorporating this figure into his computations, he set the overall loss to the landowner at $10,800. McReynolds’ use of this diversion factor approach, which defendant labels as wholly speculative, yields the principal complaint in this appeal.

During cross-examination, defendant’s counsel asked McReynolds if he had “. any indication at all that that [combination with the Cook property] would be possible, factual?” The witness responded: “Well, sure. Just go by and look at it today.” The response apparently was a reference to the fact that sometime between June 20, 1968, the day of the taking, and January of 1975, the time of the trial, the Cook property had been acquired and the defendant’s buildings removed. Defendant’s attorney objected, moved to strike the answer and moved for a mistrial. The trial judge sustained the objection and instructed the jury to disregard the response but refused to grant a mistrial. This refusal to grant a mistrial prompts one of the appellate contentions. McReynolds then admitted that as of June 20, 1968, he had no evidence that acquisition of the Cook property was a factual possibility. In response to a question by the trial judge McReynolds insisted, despite his earlier computations, that his $10,-800 estimate of loss was based on the condition of the property as of the date of the taking apart from any possible combination of the parcels. Defense counsel’s motion for a mistrial, because of the witness’ injection of the false issue of combination of the properties, was overruled. This action generated another appellate contention.

The remaining two state’s experts, Harvey Hyams and Harry G. Herring, valued the entire parcel at $3 per square foot and applied a cost less depreciation formula to the value of the structures. The computations of damages by both experts dealt solely with the 2,584 square feet of property physically taken for construction of the new road. The amount of loss was set by these two experts at $11,350 and $10,850 respectively. The $500 difference in the result appears simply to be the product of rounding off certain of the sums included in their computations. Defendant makes no objection to the testimony of these experts.

During closing argument, the state’s attorney suggested that the landlocked parcel retained some potential use for open storage or for landscaping since only vehicular and not pedestrian access was impossible. In addition, the attorney suggested that the existing structures had had problems due to the fact they were so far toward the front line and near the right-of-way line. The trial court’s overruling of objections to both of these comments as being unsupported by the evidence formed the basis for the final appellate contention.

Defendant’s principal appellate complaint centers on the testimony of McRey-nolds, and specifically on the prognostication of the witness that the landlocked condition of the triangular parcel of land would persist for only three years. We agree with the defendant that this crucial portion of McReynold’s testimony was improperly admitted into evidence because the three-year prediction was wholly speculative.

In condemnation cases, damages are properly measured as of the date of the taking, Western Robidoux P & L Co. v. Missouri Highway Comm., 498 S.W.2d 745, 748 (Mo.1973) and see also cases collected in Missouri Digest, Eminent Domain at 124. The approach, however, is not a wholly static one. The notion of highest and best use, and thus some reflection of the potential future development of the property, is provided for in the approved damages instruction for such cases. Thus MAI-Civil 16.02 provides that:

“In determining fair market value you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future.”

Estimates of damages should be directed to establishing “. . . the present value for the adaptable use . . .” State v. Schutte Investment Co., 334 S.W.2d 241, 248 (Mo.1960); In re Armory Site in Kansas City, 282 S.W.2d 464, 472 (Mo.1955). It should be noted, however, that the existence of a relevant adaptable use “. ‘does not refer to a future possibility but to a present capacity for a use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value’ . . .” Shell Pipe Line Corp. v. Bruns, 239 S.W.2d 546, 549 (Mo.App.1951) quoting Illinois Power & Light Co. v. Parks, 322 Ill. 313, 153 N.E. 483, 487 (1926). In the present case, McReynolds presented no evidence that removal of the existing structures and acquisition of the Cook property could be anticipated with any reasonable degree of certainty within the three-year period. On cross-examination, McReynolds admitted that as of the date of the taking he had no factual basis for his three-year projection. He testified as to business trends and as to his own opinion of the most rational business development of the entire parcel of land. As noted by defendant’s expert witness, however, the landowner retained the right to leave the existing structures on the “untaken” portion of his land. To allow damages to be computed by the formula suggested by McReynolds and to thereby award defendant only 55 cents per square foot for the landlocked parcel would compel the landowner, in order to avoid loss, to remove all of the existing structures within three years.

On appeal, defendant has directed our attention to several cases in which a landowner was prevented from introducing evidence of proposed condition changes, wherein the courts found that the evidence would provide only a speculative basis for aggrandizement of damages, see, e. g., In re Armory Site in Kansas City, supra at 470-71; State ex rel. State Highway Comm. v. Graeler, 527 S.W.2d 421 (Mo.App.1975). A similar emphasis on determining just compensation prompts us to exclude speculation by the state directed to the diminution of damages.

In response to defendant’s complaints, the state presents several cases espousing the abandonment of technical rules of evidence, such as hearsay and the best evidence rule, in relation to expert testimony, see, e. g., State v. Barron, 400 S.W.2d 33, 37—38 (Mo.1966) and State ex rel. State Highway Comm. v. Carlson, 463 S.W.2d 74, 76-8 (Mo.App.1970). We feel, however, that the restriction on speculative testimony by expert witnesses is not a technical rule of evidence but rather a needed protection against evidence of improper measures of damages being presented to the jury. The trial court, therefore, committed error in overruling defendant’s objection to the speculative testimony of McReynolds.

The entire issue of the admission of McReynolds’ speculative testimony is muddled by the fact that in response to a question by the trial judge, McReynolds denied incorporation of the three-year prediction into his $10,800 damage estimate. First, we find the denial unconvincing in light of McReynolds’ earlier testimony specifically referring to the three-year prediction and the diversion factor in his damage calculations. If, however, McReynolds’ estimate was not based on the diversion factor, we agree with the defendant that the trial judge should have acted to block the presentation to the jury of this inadmissible evidence, In re Armory Site in Kansas City, supra, at 472. The potential significant impact on a non-expert jury of expert testimony in the complex field of land appraisal seems to warrant extreme caution in the admission of such testimony.

The case must be retried because of the improper admission of McReynolds’ prediction that the landlocked condition and diminished value of the small parcel would persist for only three years. For purposes of retrial, we note summarily the other contentions of the defendant—defendant’s complaints as to McReynolds’ response on cross-examination making reference to the condition of the property as of the date of the trial. It appears the trial judge acted properly in sustaining the objection and instructing the jury to disregard the testimony. The refusal to invoke the drastic remedy of declaring a mistrial seems to have been a proper exercise of the trial judge’s discretion. There was no other evidence introduced which would alert the jury to the changed circumstances as of the date of the trial. Any prejudicial impact on the jury, therefore, was probably imaginary.

Defendant’s final complaint relates to comments by the state’s attorney during closing argument. We feel that the comments were within the reasonable scope of the evidence and inferences from the evidence as evaluated by the trial judge, Schmid v. Langenberg, 526 S.W.2d 940, 946 (Mo.App.1976).

Also, for the purposes of retrial, we make one final comment. We find it curious that in a case involving the relatively objective issue of the measurement and valuation of land, the parties are unable to provide us with an understandable map of the subject property or even agree on the square footage of the landlocked parcel of land. The great variance between McReynolds’ $10,-800 damage estimate and Hawkinson’s $24,-420 estimate seems largely to stem from McReynolds’ description of the landlocked parcel as 1,188 square feet and Hawkinson’s description of it as 2,459 square feet.

The judgment of the trial court is hereby reversed and the cause remanded for a new trial.

STEWART and RENDLEN, JJ., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Lillian KELLEY and Pine Lawn Bank and Trust Company, a Missouri Banking Corporation, Appellants, v. Milton J. SCHNEBELEN, Trustee under Deed of Trust, and Julius Jensen III, as Nominee of the Trustees of Diversified Mortgage Investors, a Massachusetts Business Trust of Boston, Massachusetts, Respondents.
    No. 37153.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Nov. 2, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      Charles W. Medley,, Farmington, W. W. Sleater, Clayton, for appellants.
    Bryan, Cave, McPheeters & McRoberts, Jerome M. Rubenstein, Robert G. Brady, St. Louis, for respondents.
   NORWIN D. HOUSER, Special Judge.

Bill in equity to enjoin the nonjudicial foreclosure of a first deed of trust and stop the sale of a shopping center in Bonne Terre advertised for April 18, 1975, and for other relief. Plaintiffs are Pine Lawn Bank and Trust Company and its nominee and agent (hereinafter “the bank”). The bank, owner of the property by purchase at a previous foreclosure sale under its second deed of trust, appeals from an order sustaining a motion to dismiss its petition. Respondents’ brief discloses that no super-sedeas appeal bond was filed by the bank; that defendants, owners and holders of the first deed of trust, readvertised and proceeded with a foreclosure sale, after this case was tried; that at that sale defendants purchased the property, and the bank failed to post a redemption bond. Passing over the question of mootness, we consider this appeal on its merits.

Appellants’ first point: “The court erred in dismissing plaintiffs’ petition for failure to state a cause of action because said petition did state a cause of action giving the court jurisdiction to grant relief requested.” At the hearing on the motion to dismiss, matters outside the pleadings were presented to and not excluded by the court. Consequently under Rule 55.27(a) the motion is to be treated as a motion for summary judgment and disposed of as provided in Rule 74.04.

From the allegations of the petition, admissions of counsel, documentation, answers to requests for admission, affidavits, deposition of D. W. Dodds, president of the bank, and the testimony adduced at the hearing on the motion to dismiss we find no genuine unresolved issue of fact, and that movant was entitled to summary judgment as a matter of law.

These are the unassailable facts: On April 24, 1973 J.M.C. Investments, Inc. (hereinafter “JMC”), owners and developers of the shopping center, entered into a management agreement with McHarevo Development Corporation (hereinafter “McHare-vo”) whereby McHarevo agreed to manage the center, collect rentals from lessees, pay taxes, supervise insurance, make monthly statements showing receipts and disbursements, and remit to JMC the balance shown to be due.

On May 29, 1973 Diversified Mortgage Investors (hereinafter “DMI”) and JMC signed and executed documents by which DMI agreed to lend JMC $1,300,000; JMC executed a note to DMI for $1,300,000 and gave DMI a first deed of trust on the shopping center property; JMC made a conditional assignment to DMI of its existing and future leases and rental contracts, giving DMI the right upon default by JMC in the payment of the note or its other contractual obligations to exercise all rights of the lessor, collect the rents and apply them to the payment of taxes, insurance and the note.

On May 30, 1973 JMC executed a note to the bank for $300,000 and gave the bank a second deed of trust on the property. This loan was conditioned on the execution by JMC and McHarevo of an amended management contract (drawn up by the bank’s attorneys and executed at the bank on June 4, 1973 by JMC and McHarevo) providing that from the total rentals collected by McHarevo the latter was directed to “pay all sums to the order of the first mortgagee, Diversified Mortgage Investors, under the terms of the mortgage * * * pay all real estate taxes when due; pay premiums on all required insurance policies, and remit the balance, if any, to the bank. The amended management contract of June 4, 1973 was executed without the knowledge of DMI at the time.

On March 18, 1974 Jerome Rubenstein, attorney for DMI, notified all tenants in the shopping center that there had been a default in the note due DMI and that the tenants should make all future rental payments to DMI, in care of Mr. Rubenstein; that payment to any other person would subject them to double liability for the rentals.

On May 6, 1974 Mr. Rubenstein notified all tenants in the shopping center to send all future rental payments to the bank, checks payable to DMI.

Many of the tenants, confused by conflicting directions as to whom rental payments should be made, went on a “rent strike” and failed or refused to make rental payments.

In July, 1974 DMI commenced proceedings to foreclose its first deed of trust. On August 8 DMI and the bank entered into an agreement whereby, for a consideration of $32,500 (representing the interest on the outstanding balance of the $1,300,000 loaned to JMC), DMI canceled the advertisement and foreclosure sale scheduled for August 12, and agreed not to advertise the property for foreclosure for 90 days from July 27, 1974. As further consideration for the cancellation and extension the bank agreed to pay, if necessary, costs and expenses in connection with readvertisement of the foreclosure sale in an amount not to exceed $1,000.

Default having been made in the payments due the bank under its loan to JMC, the bank foreclosed its second deed of trust. The bank purchased the property at the foreclosure sale, held October 25, 1974.

On November 8, 1974 DMI and the bank entered into an agreement extending the October 8 agreement to January 27, 1975 for an additional consideration of $32,500, with the same provision for the payment of $1,000 expenses of readvertising.

On March 4, 1975 Mr. Rubenstein, acting for DMI, notified all tenants that there had been a default in the note due DMI and that the tenants should make “all future rental payments” to DMI, in care of Mr. Rubenstein.

In March, 1975 DMI commenced foreclosure proceedings, advertising a sale to be held April 18,1975. On April 15, three days before the sale, the bank brought this action to enjoin the foreclosure. A restraining order issued, the court requiring the bank to file a $2,500 bond to indemnify DMI against damages. On April 29 DMI filed a motion to dismiss the bank’s petition. On May 9 there was a hearing on the order to show cause why a temporary injunction should not be issued and on the motion to dismiss. On May 28 the motion to dismiss was sustained. It is from this order that the bank has appealed.

The bank seeks injunctive relief under the general rule that injunction is the proper remedy where a mortgagee exercises a power of sale by attempting to sell the property to satisfy an amount in excess of the actual debt, based upon the allegation that rentals from tenants (supposed to be applied to payment of the debt) were not so applied because of misappropriation of the funds. See in this connection State ex rel. Central States Life Ins. Co. v. McEIhinney, 232 Mo.App. 107, 90 S.W.2d 124 (1936); Glines v. Theo. R. Appel Realty Co., 201 Mo.App. 596, 213 S.W. 498 (1919); 59 C.J.S. Mortgages § 552. The factual question is whether the agent collecting the rents was the agent of the mortgagee. Paragraph 4 of the petition alleges that McHarevo was the agent of DMI in connection with the collection of rents, and that acting in that capacity McHarevo misappropriated approximately $100,000 in rental income which sum, if applied to the payment of DMI’s note, would have prevented a default; that DMI, as principal, is responsible for McHarevo’s wrongdoing; that the alleged agency arises because DMI became “the owner” of the management agreement between JMC and DMI dated April 24, 1973, as amended June 4, 1973, by virtue of the inclusion of the following language in the granting clause of the deed of trust executed by JMC, following the legal description of the real estate: “Together with all of Grantor’s (JMC’s) rights under a management agreement between Grantor, as ‘Owner,’ and McHareno (sic) Development Corp., as ‘Agent,’ dated April 24, 1973.”

The bank’s theory of agency has no basis in law. The inclusion of the words quoted above in the deed of trust did not create a presently existing agency relationship between DMI and McHarevo. This was a conveyance of JMC’s rights under the April 24, 1973 management agreement in trust to secure payments due DMI. It was not an assignment in praesenti of those rights, but a conditional assignment only, for security purposes, to become effective as far as JMC was concerned upon foreclosure of the deed of trust. McHarevo was JMC’s exclusive agent under the terms of the management agreement, which obligated McHarevo to make monthly remittances to JMC of any balance due JMC after deducting disbursements from receipts. McHarevo did not by operation of law become DMI’s agent under that contract on the basis claimed, i. e., that the words quoted were included in the deed of trust. Nor did an agency relationship arise by virtue of a manifestation of consent, either by DMI or McHarevo, that the latter was to act on behalf of DMI and be subject to its control. “The relationship of agency wherein the principal may be bound by the acts of the agent results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control. In addition, the other must consent to act for the principal and be governed by his direction.” McAuliffe v. Vondera, 494 S.W.2d 692, 693[1] (Mo.App. 1973). These principles were announced by the Supreme Court in Leidy v. Taliaferro, 260 S.W.2d 504, 505[2, 3] (Mo.1953); and see 2A C.J.S. Agency § 36.

There was no obligation on McHarevo, under the management agreement of April 24, to make payments to DMI, except “when so directed by (JMC), and if sufficient funds are provided by (JMC).”

The bank, however, says the April 24 agreement was “amended” by the June 4 agreement, which did require McHarevo to make payments to DMI, and that this resulted in the creation of an agency as between McHarevo and DMI. This does not follow. DMI was not a party to either agreement, and DMI had no knowledge of the June 4 agreement at the time of its execution. While the agreement of June 4 shows consent by McHarevo to act in DMI’s behalf, still lacking is any manifestation that McHarevo agreed to be governed by or subject to the control of DMI in any particular. There is no showing that after June 4 McHarevo did in fact make any such payments to DMI. Indeed, the bank concedes that plaintiffs “have no idea” whether the rents paid by the tenants to McHarevo between June, 1973 and August 8, 1974 went to JMC or to DMI, “and further appellants have no idea as to whether any rents were allocated to amortize the first mortgage.” There is no indication that DMI accepted McHarevo as its agent for this purpose.

The bank further asserts that the conditional assignment of rents by JMC to DMI, exemplified by the loan agreement, the conditional lease and rental assignment, demonstrate the intent of the parties that McHarevo be the agent of DMI with respect to the collection of the rents. We are not so persuaded. That McHarevo did not in fact act as the agent of DMI for this purpose is evident from the testimony of Mr. Dodds, president of the bank, that McHarevo’s employee Mrs. Meyers, who did the actual collecting of rents, turned the rents over to one Donald Caifano, and did not apply these funds to the debt service on DMI’s and the bank’s loans. When asked to explain just how McHarevo became the agent of DMI, Mr. Dodds testified that he did not know. On full review of the entire record we are unable to find the existence of the agency alleged by the bank.

Accordingly, any alleged misappropriation of approximately $100,000 by McHarevo is not attributable to DMI on the basis of agency, and the bank had no right to stop the foreclosure on the basis of paragraph 4 of its petition.

The bank argues that, assuming JMC was not the agent of DMI, the matter of more than $100,000 rent paid but not applied to the first mortgage note, has never been accounted for, and that the bank is entitled to an accounting with respect to these rents prior to any foreclosure and sale, citing State ex rel. Central States Life Ins. Co. v. McEIhinney, 232 Mo.App. 107, 90 S.W.2d 124 (1936). The assertion of a right to an accounting was not pleaded by the bank in its petition; no proof was offered in that connection; the subject was not in issue and was not mentioned at any time below. Now on appeal, for the first time, the bank asks for an accounting. The bank’s request is ill-timed. It is too late at this late stage to ask for this new relief. Green v. Clyde, 80 Ark. 391, 97 S.W. 437[3] (1906); Strachan v. Drake, 61 Colo. 444, 158 P. 310 (1916). Furthermore, the party accused of misappropriating the rentals — the party who allegedly collected them (McHa-revo) — is not a party to this action. The bank is asking for an accounting from DMI, which never received the rentals. The request for an accounting is not only tardy; there is no party to this action liable to respond to such a demand.

In paragraph 5 of the petition the bank takes the startling position that DMI should not be allowed to foreclose because the loan by DMI to JMC is not in default, for the reason that paragraph 2 of the loan agreement provides: “The entire outstanding principal balance of the Loan and all accrued and unpaid interest thereon shall be due and payable three (3) years from the date hereof” and therefore interest was not payable until May, 1976. This contention flies in the face of paragraph 5 of the loan agreement, which provides that the loan shall be repaid in accordance with the repayment schedule described in Exhibit C, which says: “Payments of accrued interest shall be made on the first day of the first month following the initial disbursement of the Loan and on the first day of each month thereafter * * *The note provides: “Interest * * * shall be due and payable on the first day of the month following the date hereof and on the first day of each month thereafter until the entire outstanding principal balance and all accrued interest thereon are paid in full.” The borrower, JMC, interpreted the loan documents to require immediate monthly payments and JMC actually made a number of monthly payments before going into default. In oral argument counsel for the bank conceded that the bank is not contesting that there was a default. There is no merit in paragraph 5.

In paragraphs 6 and 7 of the petition the bank complains that it paid DMI a total of $65,000 for two agreements to extend the time of foreclosure ($32,500 for each agreement), on the representation that the first deed of trust was not in default, which representation was falsely made to induce these payments, as a result of which DMI is estopped to declare a default; that under these extension agreements the bank was entitled to all rents accruing between July 27,1974 and January 27,1975, in an amount in excess of $50,000, but that DMI in breach of these agreements and by interfering with the bank’s contractual rights, did on March 4, 1975 advise all of the tenants to make no further payments to the bank. The latter suggestion is without merit because Mr. Rubenstein’s letter of March 4, 1975 referred to “all future rentals.” It did not refer to payments due for rent in the past, i. e., during the period in question.

With respect to the allegation of estoppel, the suggestion that DMI represented that there was no default is frivolous under the evidence in this case, including the deposition of President Dodds, which clearly indicates that DMI representatives told him that if the money was not paid the loan would be in default; that if the money was paid “it would extend the note so that it would not be in default.” The two extension agreements (signed by DMI and the bank) recite that the $32,500 payment “constitutes interest on the outstanding balance of One Million Three Hundred Thousand Dollars,” which indicates that payment was being made in an amount due; the amount necessary to avoid default.

With respect to the claim that the bank is entitled to the rents during the 6-month period above referred to, the facts demonstrate an anticipatory breach on the part of the bank, which failed to pay the 1974 real estate taxes and failed to pay the expenses of republication, as promised, as a result of which the bank is in no position to complain of any breach of the agreement by DMI. Furthermore, for any alleged breach of contract the bank had its remedy at law for damages.

As far as the charge that Mr. Rubenstein interfered with the bank’s rights by sending the letter of March 4 is concerned, the record shows that on May 27, 1975 Mr. Rubenstein notified all tenants that the phrase “all future rentals” contained in his letter of March 4 should not be construed to include rental payments for the period July 27, 1974 through January 27, 1975; that DMI waived its claim for rentals for that period.

None of the reasons assigned by the bank is sufficient to enjoin the foreclosure of the first deed of trust. The interest had not been paid for months; the real estate taxes were unpaid; Mr. Dodds testified that the 1974 real estate taxes had not been paid, and that alone entitled DMI to foreclose; nowhere in the extensive correspondence carried on by Mr. Dodds was it suggested that the payments on the note and first deed of trust were not in default. Counsel conceded default. DMI was entitled to foreclose. The order restraining the conduct of the foreclosure sale was improvidently issued, wholly aside from any question of mootness. We find no merit in Point I of the bank’s brief.

Point II asserts that the court erred and abused its discretion by failing to give the bank an opportunity to amend the petition after sustaining the motion to dismiss. The fact fatal to this contention is that the record shows that the bank did not ask the court for leave to amend. The post-trial record shows only a motion for rehearing, an order overruling that motion, and a notice of appeal. In Cady v. Hartford Accident and Indemnity Company, 439 S.W.2d 483, 486 (Mo.1969), the Court stated: “ ‘If a plaintiff desires to file an amended petition, it is up to him to ask leave to do so.’ Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907, 911.”

Another reason why the court did not err in dismissing the petition is that the bank failed to sustain the allegation that it has no adequate remedy at law. It appears that there is or was an adequate remedy at law for each of the complaints set forth in paragraphs 4 through 7 of the petition, and that foreclosure will not cause the bank to suffer irreparable injury within the meaning of that term in law.

Judgment affirmed.

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