author: DIXON, Judge.

text:
    Leita R. FRANTZ, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.
    No. KCD 26978.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Stanley W. Baker, Roger D. Odneal, Morrison, Baker & Odneal, Raytown, for appellant.
    Spencer J. Brown, Deacy & Deacy, Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

The plaintiff appeals from a judgment entered on a jury verdict for the defendant. The plaintiff’s motion for new trial and notice of appeal were timely filed. In Count II of her third amended petition, the plaintiff-insured prayed for $10,000 damages against the defendant-insurer under an uninsured motorist clause of the plaintiff’s automobile insurance policy. The plaintiff was injured as she attempted to cross a street behind a car which backed into her as it was leaving a parking space, knocking her down. At the close of the plaintiff’s case, the plaintiff voluntarily dismissed Count I of her petition against co-defendant Maurice Righter, the uninsured driver of the car.

In the points relied on section of her brief, the plaintiff’s single point is, “The court erred in giving Instruction No. 3 requested by defendant as there was no evidence before the jury to support a finding that a ‘place of safety’ existed or that plaintiff stepped into the ‘immediate path of the station wagon,’ and accordingly permitted the jury to speculate and impose its own standards in making their findings.” However, in the argument portion of her brief, the plaintiff raises another point, to-wit: that the trial court erred in failing to include in Instruction No. 3, submitting contributory negligence, definitions of the terms, “place of safety” and “immediate path.” Although the point is not properly raised under the points relied on section of the plaintiff’s brief, and therefore not properly for appellate review; it will be considered ex gratia.

In reviewing the plaintiff’s contention that the evidence is not sufficient to support the contributory negligence instruction, the evidence will be reviewed in the light most favorable to the verdict with all the inferences from the evidence drawn in favor of the verdict. Blackburn v. Katz Drug Co., 520 S.W.2d 668 (Mo.App.1975). The evidence shows that at approximately 10:00 a. m., on January 9, 1970, the plaintiff was walking north on the west side of Walnut Street between 15th and 16th Streets in Kansas City, Missouri. At approximately 1532 Walnut Street, a driveway crosses the sidewalk. The plaintiff walked to the middle of the driveway and stopped. She stood there looking north to the intersection of 15th and Walnut Streets to see if the light controlling that intersection was permitting traffic to travel south on Walnut, because she was planning to cross Walnut Street to the east, where she had parked her car. The plaintiff testified that as she stood in the middle of the driveway on the sidewalk she was approximately one foot from the edge of the street. There was no curbing at the point where the driveway crossed the sidewalk. She also testified that she was two feet from the rear of the car which eventually injured her. She was holding in her right hand a box containing a vacuum cleaner. The plaintiff says that as she stood in the driveway on the sidewalk looking north, she felt pressure against her right leg. Turning her head, she saw that the car which had been parallel parked in the space immediately south of the driveway entrance was backing up causing its rear bumper to push against the box. “. . .1 tried to get out of the way but I couldn’t fast enough, and it knocked me down.” Her scream as the car knocked her down alerted Maurice Righter, the driver of the car, who stopped and pulled his car forward into its original parking position. He went to the rear of his car to see what had caused the screaming. The plaintiff was immediately taken to a hospital. Her leg was placed in a cast, and she remained in the hospital several days. Clinical therapy for her injured leg continued for several months. She testified that she has never regained the full use of her right leg.

Mr. Righter testified that he had parked his car immediately to the south of the driveway in question at approximately 9:30 on the morning of January 9, 1970. He testified that the driveway was approximately 7 to 8 feet wide. He said that there was no car parked in the parking space in the street immediately to the north of the driveway. He said he pulled his car into the parking space just south of the driveway without backing into it.

Mr. Righter said that immediately after he entered his car prior to leaving, he noticed a lady to the right front of his car walking north on the sidewalk carrying a box. He said that he then proceeded to start his car and fasten his seatbelt. Mr. Righter’s station wagon had glass along both sides and the rear of the vehicle. He said that prior to backing his car he looked over his shoulder to the rear and to the side. He said he also looked in his rear view mirror. He did not see the plaintiff at the side or the rear of his car. He said that 45 seconds elapsed from the time-he saw the woman carrying the box walking north on the sidewalk at the right front of his car until he put his car in motion towards the rear. He said that as he backed up he was generally looking to the rear, but that he never saw the plaintiff. The first time he noticed anything amiss was when he heard the plaintiff’s scream. He said that he first heard her scream after he had backed the car two feet at approximately one-half mile per hour. When he heard the scream, he stopped his vehicle and immediately moved it forward to its original position. Mr. Righter said that he found the plaintiff lying in a semi-prone position to the right rear of his car with her head to the west, the sidewalk side. She was “half-in and half-out of the street.” Mr. Righter testified that her legs were in the street and her buttocks were on the edge of the driveway. Mr. Righter said, “She was sitting where the curb should have been.” Mr. Righter testified that he had backed his car straight; that he did not turn his wheel. Righter said that from the time he saw the woman at the right front of the car carrying the box until he saw the plaintiff lying at the right rear of his car he never saw anyone to the right side or to the rear of his car.

The plaintiff testified unequivocally that at no time did she attempt to step into the street behind the Righter car. However, Dr. Paul Meyer, the physician who treated plaintiff’s injury on the day that it occurred, read in deposition testimony the notes that he made about plaintiff’s injury from the statements which she gave to him about the accident. The report read, “The patient was struck and knocked down by a car moving slowly backwards as she attempted to pass behind it this morning while working.” Later in the deposition, Dr. Meyer said, “The patient was going across the street when the accident happened.”

Officer Carl Jackman investigated the accident. At trial, he read that part of his police report which indicated how Mrs. Frantz described the accident to him. The report read, “Did not want to go to crosswalk to cross street to her parked car. Mrs. Frantz stated that before stepping in street she looked north to be sure no cars were coming. Did not realize No. 1 parked car was backing from parked position on her right, was struck in right leg.”

The defendant also introduced into evidence Paragraph 1 of a petition for damages filed by the plaintiff in this case in July, 1970. It read as follows:

“PETITION FOR DAMAGES, COUNT I, Paragraph 1, Plaintiff states that on or about the 9th day of January, 1970, she was a pedestrian crossing Walnut Street from the west side of the street to the east side of the street, at 1582 Walnut Street, a public street in Kansas City, Missouri; that defendant was operating a 1969 Rambler, backing the said vehicle north on Walnut Street at said time and place.”

Also, the plaintiff’s testimony that she was standing about a foot from the street when she was hit is inconsistent with Righter’s testimony that he found her with her legs half in the street, and sitting where the curb would have been. However, this inconsistency must be resolved in favor of the defendant. All the plaintiff’s evidence must be disregarded unless it aids the defendant’s case. Burk v. Missouri Power & Light Co., 420 S.W.2d 274 (Mo.1967); Burks v. Leap, 413 S.W.2d 258 (Mo.1967).

An appellate court may not overturn a verdict if there is substantial evidence to support the verdict. “When factual issues, supported by substantial evidence, are submitted to the jury and correct instructions are given advising the jury of the facts essential to their verdict, it is not the function of an appellate court to disagree with the jury’s views as to what are the true facts.” Lansford v. S. W. Lime Co., 266 S.W.2d 564, 568 (Mo.1954); Higgins v. Terminal R.R. Ass’n of St. Louis, 362 Mo. 264, 241 S.W.2d 380, 384 (Mo.1951). The testimony of Dr. Meyers that the plaintiff had told him she was going across the street when the accident occurred, the testimony of Officer Jackman that the plaintiff had told him that before stepping into the street she had looked north to be sure no cars were coming, the statement in the plaintiff’s July, 1970, petition, that she was “a pedestrian crossing Walnut Street” when the accident happened, Maurice Righter’s undisputed testimony that no one was directly behind his car immediately prior to the time that he put his ear in motion, the evidence that the plaintiff was on the sidewalk less than 45 seconds prior to the time Maurice Righter moved his car, Righter’s testimony that the plaintiff’s legs were in the street after the accident, and the favorable inferences from that evidence substantially support the verdict and the finding that the plaintiff stepped off the sidewalk and into the immediate path of the Righter car.

Plaintiff’s second point under her argument on appeal is that the court in the instructions should have defined to the jury the terms “place of safety” and “immediate path.” However, in Morris v. Duker, 414 S.W.2d 77, 81 (Mo.1967), a substantially similar instruction using those terms was approved. In Duker, supra, the plaintiff was two-thirds of the way across a three-lane, one-way street after the first two lanes of cars had stopped for her when she stepped into the third lane and was struck by the defendant’s car. The jury in Duker, supra, had before it evidence of a city ordinance effective at the time of the accident which stated, in part, “ ‘but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.’ ” The plaintiff in the instant case attempts to distinguish the Duker case using the following reasoning. “The entire ordinance . . . , in Duker, tends to explain the relative duties of motorists and pedestrians and would be of considerable assistance to the jury in determining the meaning of the language used in such instruction. Here, the jury is left without any guide or explanation of the terms ‘place of safety’ and ‘immediate path.’ ” However, that portion of the ordinance in Duker, supra, which states that the curb is a place of safety could not have been of substantial aid to the jury in their determination of what was a place of safety because the plaintiff in Duker, supra, did not step off the curb into the immediate path of the car which injured her; she was two lanes away from the curb when she stepped into the path of the car that struck her in the third lane. The Duker court said, “The relative positions of pedestrian and automobile when plaintiff left the west curb are immaterial, because it was plaintiff’s place of safety between the center and east lanes that was involved.”

The plaintiff’s complaint that the instruction failed to define the term “immediate path” of the car is also answered by Duker. The Duker instruction similar to the instant one read, “First, plaintiff either: failed to keep a careful, lookout, or left a place of safety and walked into the immediate path of defendant’s vehicle; . . . ” The Duker court said, “In our judgment No. 5 prescribed a sufficiently definite standard by which the jury could judge what was the ‘immediate path’ of defendant’s vehicle. ‘Immediate’ as used in this context means ‘direct,’ which is one of the many recognized definitions of the word. Webster’s New International Dictionary, second edition, unabridged.” Also, in Duker, supra, the term “immediate path” was not defined in the ordinance.

More importantly, it seems clear that “place of safety” and “immediate path” are both terms of common usage easily understandable to the jury under these facts. The evidence is undisputed that immediately prior to the accident the plaintiff in the instant case was standing on the sidewalk. The evidence is also clear, based on Maurice Righter’s testimony, that Mr. Righter backed his car two feet in a straight line at one-half mile per hour while it was on the street. With this evidence, the jury could have easily determined that the sidewalk was a place of safety and also it could have determined the immediate path of the Righter car. The holding of the Duker court is that “immediate” means “direct.” It needs no further definition on the facts of this case. Because both “place of safety” and “immediate path” are terms of common knowledge, because the terms are not calculated nor likely to confuse the jury on the facts of the instant case, and because the plaintiff never offered her own instructions defining these terms, the trial court did not err. State v. Day, 506 S.W.2d 497 (Mo.App.1974).

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Willard J. STOCKMAN, d/b/a Willard J. Stockman Construction Co., Respondent, v. The ESTATE of Guy A. SHELTON et al., Appellants.
    No. KCD 26990.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Tweedie Fisher, Jefferson City, for appellants.
    Carson, Inglish, Monaco & Coil, Michael P. Riley, Jefferson City, for respondent.
    Before SWOFFORD, P. J., and ROBERT' R. WELBORN and ANDREW JACKSON HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment for $4,634.47, declared to be a lien on real estate owned by defendant M. Marie Shelton.

Plaintiff alleged: that in February, 1972, at the specific request of defendants Guy A. and M. Marie Shelton, plaintiff commenced remodeling a structure on described property also known as 315 East McCarty Street, Jefferson City, Cole County, Missouri, owned by Guy A. and M. Marie Shelton; that construction was under one entire contract; that the balance due and owing for work, labor and materials was $4,634.47; that plaintiff duly recorded his Statement of Mechanic’s Lien. Plaintiff prayed the court: to declare the rights of the parties, to declare the balance due and owing to be a lien on the described property, for judgment against defendants for the balance due, and for sale of the property to satisfy the lien.

Defendant M. Marie Shelton answered by general denial.

The court found: that defendant M. Marie Shelton was the wife of Guy A. Shelton until his death April 10, 1972; that prior .to his death they owned the described property as tenants by the entirety; that defendant'M. Marie Shelton, upon the death of her husband, became the sole owner of the property; that there is no estate of Guy A. Shelton; that plaintiff, at the specific request and authorization of the defendant, commenced construction on the property February 23, 1972; that defendant M. Marie Shelton continued the work after the death of Guy A. Shelton; that the last work was performed July 14, 1972, under one entire contract; that the balance due and owing plaintiff by defendant M. Marie Shelton is $4,634.47; that plaintiff duly filed his Statement of Mechanic’s Lien within the time prescribed by law. The court ordered, adjudged and decreed: that plaintiff have and recover $4,634.47 from defendant M. Marie Shelton, together with interest from July 14, 1972; that same be declared a lien upon the described property; that the cause be dismissed as against the Estate of Guy A. Shelton and M. Marie Shelton, Administratrix; that costs be taxed against defendant M. Marie Shelton. Plaintiff does not appeal the dismissals.

The case was tried by the court without a jury and is thus for review upon both the law and the evidence with due regard to be given to the opportunity of the trial court to have judged the credibility of witnesses. Rule 73.01.3(a)(b), V.A.M.R.

A sheriff’s deed in partition showed the property to have been purchased by Mr. Shelton and titled to Guy A. Shelton and M. Marie Shelton, his wife, January 20, 1972.

Plaintiff Willard J. Stockman is the sole proprietor of and does business as Willard J. Stockman Construction Co. in Jefferson City, Missouri. He did work on property belonging to Mr. and Mrs. Guy Shelton at 315 East McCarty, Jefferson City, Missouri, beginning in February, 1972, and finishing in July, 1972. He had one or more men on the job each week throughout the period. The work was general renovation, repairs, new roof, front door and steps, fourteen interior doors. Some painting and plumbing were done and stairway improvements were discussed. All work was done under oral cost-plus-ten-percent contract. He got his instructions “generally from Mr. Shelton. But Mrs. Shelton was there originally and on the final end of it after Mr. Shelton passed away. * * * He came in periodically * * * almost weekly, and sometimes his wife was with him and sometimes not. * * * Anytime he wouldn’t give us a direct order, I would have to check back with Mrs. Shelton.” He identified his material list, suppliers’ names, labor, and balance due of $4,634.47. The final bill was sent to Mrs. Shelton July 11, 1972. Mr. Shelton died April 10, 1972. He met with Mrs. Shelton at her attorney’s office in Kansas City and presented her with the statement and accompanying bills. “ * * other conversation was whether to finish up what was going on and get it ready for either rental or try to sell it, et cetera.” He “was supposed to be let know” how to proceed. No such notification was received.

LeRoy Stockman is a brother of Willard Stockman and is a carpenter foreman for the Willard Stockman Construction Co. He worked on the project in question approximately six months. Mr. Shelton called him in January, 1972, to lock the place; he met Mr. Shelton there, changed the locks, and installed a new front door. He saw Mr. Shelton practically every weekend after the original meeting. The Willard Stockman Construction Co. began work on the premises in February, 1972. Mr. and Mrs. Shelton lived in Independence and came to Jefferson City on weekends. “She was there in the building one particular time and twice that she came through.” The first time he met Mrs. Shelton, “the plasterers were there, and I was working on some door, and Mr. Shelton introduced me, and they talked about what was going on, the plastering, how they were finishing it.” Some of the workmen on the job were sent down from Kansas City to do work other than that performed by Stockman employees. On one occasion, “We was preparing to close in the fireplaces and the stairways going upstairs were discussed at that time when she was there.” The discussion covered whether to “brick in” the fireplaces, and whether to paint or varnish the stairway. When he first met Mrs. Shelton on the premises, the conversation between him and Mr. and Mrs. Shelton covered “general overhaul of the building. How this was being done and that was being done. And he was pointing it out to her. * * * She mostly agreed with him on what was going on.” She made suggestions. The conversation about the fireplaces and stairway occurred about ten days prior to Mr. Shelton’s death. Mr. Shelton died April 10, 1972, and Mrs. Shelton called Mr. Stockman about a week later. “She informed me of Mr. Shelton’s death. And at that time she said, we would have to finish the work that was started and would I go ahead and take care of it. * * * I told her, I would. s * * about a week later we had a conversation on the phone, and she informed me at that time to go ahead and also I should contact a realtor to try to lease or sell the property.” He kept her advised of the progress of the work. She also sent a plasterer and a painter to the job from Kansas City. The job was finished and the keys were given to Mrs. Shelton’s realtor in Jefferson City. Work remaining to be done after Mr. Shelton’s death included the doors, plumbing, painting, sash cords, and base and trim around doors and windows. There was never any notice that the work should not be done by Mr. or Mrs. Shelton or by anyone purporting to be an agent for either of them.

Marie Shelton first learned of the purchase of the property in question “when he came home and told me he had bought it. ⅜ * * he said he was not going to let it go for nothing, that if he had to he would buy it. And I, at that time, told him I was very much against buying property in Jefferson City * * ⅜ because the memory that I have of Jefferson City is not pleasant.” He borrowed the money to purchase the property and she left its renovation in his hands. Her version of the purpose of the call to LeRoy Stockman after her husband’s death was to advise “that my husband had just passed away on April 10, and that I would prefer they didn’t do any more because I didn’t know anything about what was going on and I had to find out.” She knew her husband was going to Jefferson City every weekend to visit the property. She was on the project twice in February. On one occasion she observed a workman from Independence spraying walls and commented that he was doing a nice job. She did not tell any workman to leave the job. Around the first of July, 1972, she did some painting at the property and actively participated in the remodeling after her husband’s death. A letter in evidence from her attorney to Willard Stockman, dated July 26, 1972, showed no objection to the work. She told LeRoy Stockman to take the key to the premises to Jordan Realty Company for purposes of appraisal and possible sale. Mrs. Shelton is a businesswoman and sole operator of Consolidated Funerals, Incorporated, a million dollar pre-need funeral plan in which she had managed and supervised as many as twenty employees.

Appellant does not question the amount of the judgment; she contends that the court erred “because under the competent and substantial evidence and reasonable inferences therefrom, plaintiff failed to prove that defendant M. Marie Shelton specifically requested and authorized the plaintiff to commence construction and that work was performed under one entire contract.” She cites Poore v. International Paper Company, 455 S.W.2d 13 (Mo.App.1970), and E. C. Robinson Lumber Company v. Lowrey, 276 S.W.2d 636 (Mo.App.1955), to argue that since a mechanic’s lien cannot be created by a spouse acting independent of the other spouse or by his or her own individual act, the evidence must be viewed to determine whether agency existed between Mr. and Mrs. Shelton, and asserts the evidence to be insufficient for that purpose. She also cites Marshall v. Hall, 200 S.W. 770 (Mo.App.1918), to assert that silence on her part does not prove her to be a party to the contract between plaintiff and her husband; and E. C. Robinson Lumber Company v. Lowrey, supra, and Bybee v. Dixon, 380 S.W.2d 539 (Mo.App.1964), to assert that plaintiff can get no support by way of estoppel or ratification because neither was pleaded.

The evidence shows that Mrs. Shelton did not directly order any of the materials and labor furnished to the project by plaintiff or negotiate the agreement with plaintiff. Her husband accomplished those acts. Thus, if she is to be held as a participant it must be by evidence showing that her husband acted as her agent with her knowledge and acquiescence, or by evidence of actions by which she is estopped to deny the agency or her participation.

There is no question that Mr. and Mrs. Shelton acquired the property as tenants by the entirety in January, 1972, and that upon her husband’s death April 10, 1972, she became the sole owner of the premises. Mrs. Shelton is a successful businesswoman in her own right; and, despite her dislike for owning property in Jefferson City, would like to have subject property in its renovated state free and clear of the cost of renovation. It is not disputed that a contract existed between plaintiff and Mr. Shelton. Mrs. Shelton accompanied her husband to Jefferson City and was on the premises on at least three occasions when she saw work in progress and participated in discussion concerning work under way or to be done. It is a fair inference that after her husband’s death, she called LeRoy Stockman, plaintiff’s agent and foreman, and authorized him to finish the work that had been started. She also participated in the remodeling, including her own labor and bringing workmen with her from Kansas City. Toward completion of the project she requested the contractor to deliver the keys to her realtor. Considerable materials and labor were supplied on the project between April 10 and July 11, 1972. In the conference concerning payment of plaintiff’s statement and in the letter from defendant’s attorney to plaintiff, there was no denial of the statement; the only request was for the supporting bills to be supplied. At no time was there a protest concerning the work or a denial of responsibility for the amount due plaintiff.

In these circumstances it would be difficult to say that Mrs. Shelton was not cognizant of everything that transpired. She knew that her husband had acquired the property; that renovation was in progress; that materials were on the job and that labor was being performed. To say that her activities were only a “wifely interest” in her husband’s affairs, Marshall v. Hall, supra, 200 S.W. 1. c. 775[1], Dierks & Sons Lumber Company v. Morris, 404 S.W.2d 229 (Mo.App.1966), and that her husband was not acting in her behalf, as well as his own, and with her full knowledge and authorization, would be unjustified. To deny plaintiff the benefits of the mechanic’s lien statute, a remedial law, would be an offense against its equitable purpose, Herrman v. Daffin, 302 S.W.2d 313, 316[3] (Mo.App.1957). If there was any doubt about Mrs. Shelton’s participation in the project prior to her husband’s death, it was dispelled by her authorization and direction to the contractor to finish the work in progress after his death. See E. C. Robinson Lumber Company v. Lowrey, supra; Poore v. International Paper Company, supra.

Mrs. Shelton’s acts following her husband’s death are in the nature of ratification and support an estoppel against her; however, it was not necessary to plead either because they were not the grounds of recovery, and both were but circumstances bearing on the question whether Mrs. Shelton’s participation in this project was sufficient to subject her property to a mechanic’s lien for the cost of the project. E. C. Robinson Lumber Company v. Lowrey, supra, 276 S.W.2d 1. c. 641-642[8 — 13],

Judgment affirmed.

All concur.


author: SOMERVILLE, Presiding Judge.

text:
    LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF KANSAS CITY, Missouri, Plaintiff-Respondent, v. George MASSOOD and Donald E. Hutchison, Defendants-Appellants.
    No. 27029.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Gage, Tucker, Hodges, Kreamer, Kelly & Varner, William L. Turner, Michael J. Gallagher, Kansas City, for defendants-appellants.
    Terrell, Van Osdol & Magruder, Paul Van Osdol, Jr., Richard M. Erickson, Kansas City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

Land Clearance For Redevelopment Authority Of Kansas City, Missouri, hereinafter referred to as “condemnor”, filed a condemnation action to acquire three parcels of land jointly owned by George Mas-sood and Donald E. Hutchison, hereinafter referred to as “condemnees”. The con-demnees, as well as the condemnor, filed exceptions to the Commissioners’ Report fixing and assessing $15,065.00 as con-demnees’ damages for the taking of the three parcels of land. The amount awarded by the Commissioners was paid into court on September 17, 1971.

A jury trial resulted in a verdict and judgment for $12,052.00 as damages for the taking of condemnees’ property. Con-demnees, dissatisfied with the jury’s assessment of damages, have appealed and their effort to achieve appellant relief centers on certain evidentiary matters. More precisely, condemnees claim the trial court committed reversible error on three occasions. First, in refusing to permit condemnees, during cross-examination of one of con-demnor’s expert witnesses, to inquire of said expert witness the consideration he gave, if any, to the impact of an “announcement and implementation” of an Urban Renewal Plan for the area on his “comparable sales data”. Second, in overruling con-demnees’ motion in limine directed towards, and in admitting into evidence over con-demnees’ objection, the price paid by them for certain parcels of the land being condemned because the purchases resulted from “forced sales” rather than voluntary market transactions. Third, in overruling condemnee’s motion in limine directed towards, and in admitting into evidence over condemnees’ objection, all purported “comparable sales” testified to by condemnor’s expert witnesses subsequent to announcement of the aforementioned Urban Renewal Plan and a declaration that the project area was blighted.

Before addressing condemnees’ various contentions on appeal with any degree of particularity, some observation of certain general facts appears to be in order.

Condemnees’ property- was located in a portion of Kansas City, Missouri, described as the “East 23rd Street Urban Renewal Area”, which, on June 15, 1967, was declared to be “blighted and unsanitary” by the City Planning Commission of Kansas City, Missouri. On August 18, 1967, the City Council of Kansas City, Missouri, passed an ordinance declaring the proposed urban renewal area blighted. Condemnor’s plan for redevelopment of the area, as revised, was approved by the City Council on October 1, 1970, and the instant action to acquire condemnees’ property by condemnation was filed July 12, 1971.

Condemnees were real estate brokers specializing in commercial and industrial property. Among other things, they specialized in assembling tracts of land (taking title in their own names) for speculative commercial and industrial purposes. In 1963, they assembled and sold to Sears, Roebuck and Company 168,242 square feet of property. Sears put the acquired property to use as a parking lot in connection with their “retail store” and “catalogue order plant” located at Truman Road and Cleveland in Kansas City, Missouri. In 1964, condemnees started to assemble another tract of ground for speculative purposes in what was subsequently designated the East 23rd Street Urban Renewal Area, and in so doing acquired the three parcels of land which are the subject of this condemnation action. The three parcels of land mentioned are located on the east side of Myrtle Street across from the Sears parking lot.

The condemnees and their expert witnesses all testified that the highest and best use of the three parcels of land, although zoned “R 2B — residential duplexes” as of the date of taking, was for commercial and industrial purposes. They further testified that in their opinion there was a “reasonable probability” that the three parcels of land could be rezoned to “M 2A — heavy industrial”. Condemnor’s expert witnesses all testified that the highest and best use of the three parcels of land was for residential purposes.

One of the condemnees, without objection, testified that “it became public knowledge” in 1965 that the general area in which the three parcels of land were located was being studied and considered as a “blighted area” for purposes of “redevelopment” and when that occurred “everything just stopped”.

As is frequently the case, there was a wide divergence of opinion between con-demnees and their expert witnesses, and the opposing expert witnesses, as to the fair market value of the three parcels of land as of the date of their taking (September 17, 1971). The condemnees and their expert witnesses, as well as the opposing expert witnesses, all used the market data or comparable sales approach, as opposed to the cost approach or income approach, in arriving at the fair market value of the property as of the date of taking. Opinions as to the fair market value of the property ranged from a high of $39,775.00 to a low of $5,125.00.

Considerable difficulty has been encountered in perceiving the thrust of con-demnees’ first assignment of error, due in part to the difficulty of relating it to any particular question or questions posed by condemnees on cross-examination. The assignment, verbatim, reads as follows:, “The Court erred in refusing to permit appellants to inquire on cross-examination of respondent’s expert witness into the consideration given, if any, to the impact of the announcement and implementation of the Urban Renewal Plan on the validity of his comparable sales data.” Condemnees, in their brief, failed to point to any question or questions posed by them on cross-examination which they claim their first assignment of error purports to encompass. After carefully searching the record this court surmises that the gravamen of condemnees’ first assignment of error lies in the following two questions propounded on cross-examination to one of condemnor’s expert witnesses:

“And after Urban Redevelopment comes in you just can’t make it commercial any more, can you?”
and
“But there couldn’t be any parking lot over here where you have your comparable after Urban Renewal came in?”

Both of said questions were objected to by condemnor and its objections were sustained by the trial court. A literal construction of the questions indicates that they were directed toward the use con-demnor intended to make of the property once acquisition was completed. Nevertheless, it is apparently condemnees’ contention, after reconciling the questions with their first assignment of error and the argument portion of their brief, that said questions were an attempt on their part to show that “public knowledge” in 1965 that the general area was being studied and considered as a “blighted area for purposes of redevelopment” had a depressing effect on the market value of all property in the area, including the comparable sales relied on by condemnor’s expert witnesses.

The prevailing law of this state fails to support the condemnees insofar as their first assignment of error is concerned. In St. Louis Housing Authority v. Barnes, 375 S.W.2d 144 (Mo.1964), the Supreme Court affirmed a lower court’s refusal to give an instruction proffered by a property owner that the jury, in assessing damages in a condemnation action, could take into consideration “. . . any damages caused to defendant’s property as a result of the institution of the condemnation proceedings, either by the actual filing of the condemnation petition or by the announcement of plans for condemnation and the effect of such announcement on the value of such property if you find that such announcement, if any, caused the property to change in value.” Thus, the issue of whether the adverse effect of a premature announcement of condemnation is a proper element for a jury to consider in assessing damages in a condemnation action was squarely presented to the court in Barnes. In holding that it was not, the court relied on and quoted as follows from its en banc opinion in State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 817 (banc 1933): “We do not undertake to decide if the realty company is entitled to any damages on account of the pendency or delay of the condemnation proceeding itself, and if there is any damage on account of such proceedings, it is of a personal character, as distinguished from any damage to the property itself, and is not an element to be considered by the commissioners in assessing benefits and damages in this proceeding.” In State ex rel. State Highway Commission v. Samborski, 463 S.W.2d 896, 902-903 (Mo.1971), a case involving a lessee’s interest in a condemnation award, the Supreme Court demonstrated the continuing viability of the principle for which Barnes and Beck have presently been cited: may be, as suggested by appellant’s [lessee’s] presentation, that ‘common knowledge’ of the station’s projected demise affected its value, but the threat of condemnation proceedings is not an element of damages for a taking in condemnation. St. Louis Housing Authority v. Barnes, Mo., 375 S.W.2d 144, 147; State v. Beck, Mo. 63 S.W.2d 814.” The line of authorities just mentioned, and the principle announced therein, were relied on in State of Missouri ex rel. State Highway Commission v. Anderson, 485 S.W.2d 614 (Mo.App.1972). The principle enunciated in Beck and affirmed in Barnes stamps with approval the trial court’s ruling in this case. If an adverse effect brought about by threatened condemnation can not be considered as an element of damages to the property subject to condemnation, then it would be illogical to hold that it could be indirectly placed before the jury by showing its effect on comparable sales utilized to demonstrate the fair market value of the property being condemned. Under the prevailing law of this state laid down by the Supreme Court, supra, which this court is obliged to follow, condemnees’ first assignment of error is ruled against them. It

Before leaving condemnees’ first assignment of error, this court senses a growing awareness that the debilitating effect of threatened- condemnation is a recurring problem that may well require a revisitation of the obtaining law in this state. In a given situation a premature announcement of condemnation may well cast a devastating pall over property in a given area with the end result that by the time a de jure taking occurs the fair market value of the property has become noticeably depressed. The present status of the law in this state, as exemplified by State ex rel. City of St. Louis v. Beck, supra; St. Louis Housing Authority v. Barnes, supra; State ex rel. State Highway Commission v. Samborski, supra, and State ex rel. Highway Commission v. Anderson, supra, undoubtedly springs from an unyielding commitment to the proposition that the fair market value of property subject to condemnation is to be ascertained as of the date of appropriation, i. e., the date the commissioners’ award is paid into court. St. Louis Housing Authority v. Barnes, supra, and State ex rel. Highway Commission v. Anderson, supra. This latter rule apparently became clearly fixed in the law of this state as early as 1875. Hosher v. K. C., St. J. & C. B. R. Co., 60 Mo. 303. The rule had its inception at a time when the power of eminent domain was exercised in most instances to acquire raw, undeveloped land for public purposes and announcements of its impending exercise had a minimal impact, if any at all, on the value of the property subject to acquisition. Moreover, the rapid and widespread dissemination of news, which the multiple, sophisticated news media of today are capable of, was not then a factor to be reckoned with. A metamorphosis occurred between then and now. It now seems to be. the rule rather than the exception for the power of eminent domain to be exercised in highly developed areas and when it is in the offing it becomes the news of the day and saturates broad areas. For these reasons, this state’s present commitment to the de jure date of taking as controlling for determining the fair market value of property subject to condemnation may well be an anachronism. Although inadequately presented by the record in this case both by way of evidence and offers of proof, a grossly premature announcement of condemnation, however well motivated and regardless of how or by whom initiated, may, as a practical matter, penalize property owners if the fair market value of their property is determined solely as of the date of the de jure taking. This is particularly true in situations involving the twentieth century innovation of urban redevelopment. In Land Clearance for Redevelopment Authority v. Morrison, 457 S.W.2d 185 (Mo. banc 1970), the Supreme Court of this state suggested, at least inferentially, in a case involving condemnation for urban redevelopment purposes, that a property owner’s only recourse for the adverse effect of threatened condemnation was by way of an action for damages of a “personal character”. Conversely, the case appears to say the adverse effect of threatened condemnation was not an element for jury consideration in assessing damages to property in a condemnation proceeding. Land Clearance for Redevelopment Authority v. Morrison, supra, 1. c. 199, further suggests that the adverse effect of threatened condemnation must be accompanied by proof of “aggravated delay” or “untoward activity” on the part of the condemning authority in order to state a separate cause of action for damages of a “personal character”. If condemning authorities are given the benefit of the doubt, it is difficult to envision a situation, unusual circumstances excepted, when a condemning authority could be said to be guilty of “aggravated delay” or “untoward activity” so far as a premature announcement of condemnation is concerned. Nevertheless, conceding for sake of argument that all premature announcements of condemnation emanate from the highest of motives, there is no escape from the harsh, cold reality that a grossly premature announcement of condemnation may depreciate the value of property to such an extent that the property owner is unfairly victimized if determination of the market value of his property is limited to the de jure date of expropriation. For this reason, some legal writers harbor serious reservations whether limiting the property owner to a separate action for damages of a “personal character”, with its attendant restrictions, is realistic, and, if realistic, whether it is an adequate remedy. Nichol’s, The Law of Eminent Domain, Revised Third Edition, Supplement, Vol. 4, pp. 57-75, a recognized treatise in the field of eminent domain, advances the doctrine of “condemnation blight” as “an avenue of relief” when a grossly premature announcement of condemnation has acted as a depressant on the fair market value of property subsequently appropriated. The doctrine of “condemnation blight” therein advanced is evidentiary in nature and the substance of the doctrine is stated as follows at page 58: “The problem of condemnation blight involves the question of the date as of which the property should be valued. Ordinarily, property taken by eminent domain is valued either as of the date that title vests in the condemnor as a matter of law or the date when the condemnor actually takes possession, whichever is earlier. The question of blight involves the use of an earlier date which will reflect the value of the property prior to the impact of the deteriorating influence to an immenent taking.” The preceding dictum is not meant to “tout” the doctrine of “condemnation blight”. It does, however, point up a prevalent awareness of a basic difficulty that property owners labor under so far as receiving just compensation for their property is concerned when a grossly premature announcement of a threatened condemnation, through no fault of theirs, noticeably reduces the value of their property before a legal taking occurs. The doctrine of “condemnation blight” may well be the answer to the vexing problem that presently exists in this state under certain circumstances and it is not incompatible with the constitutional mandate (Article I, Sec. 26, Constitution of Missouri, 1945, V.A.M.S.) “[tjhat private property shall not be taken . for public use without just compensation.”

The court focuses attention on con-demnees’ third assignment of error before addressing their second assignment, since condemnees’ first and third assignments of error are, in theory, closely related. The essence of condemnees’ third assignment of error is that the trial court should have excluded all comparable sales relied on by condemnor’s expert witnesses that occurred after 1965, the date condemnees claim that it became “public knowledge” that the area was being considered for urban redevelopment purposes. The gist of their argument is that the aforesaid had a deleterious effect on the fair market value of all property in the area from 1965 on and therefore all sales subsequent to that time were so tainted that they should have been per se ex-eluded from the jury’s consideration. No rational distinction can be drawn between the legal propriety of not permitting con-demnees to cross-examine condemnor’s expert witness on the adverse effect of threatened condemnation with respect to the comparable sales he utilized in his market data approach in determining the fair market value of condemnees’ property and a per se exclusion of all sales subsequent to 1965 for use as comparable sales. If logic supports the view that it was improper for the condemnees on cross-examination of condemnor’s expert witness to delve or probe into the adverse effect of threatened condemnation on the validity of the comparable sales he utilized, then the same logic compels the conclusion that all comparable sales subsequent to 1965 should not be per se excluded as contended by condemnees. Condemnees’ third assignment of error does not evolve from a claim that the comparable sales subsequent to 1965 utilized by condemnor’s expert witness were forced sales. Their third assignment of error is predicated solely on the proposition that all comparable sales subsequent to 1965 should have been excluded on a wholesale basis solely because of the purported adverse effect of threatened condemnation. The cases cited, supra, supportive of affirmance of the trial court’s rulings under attack in condemnees’ first assignment of error, likewise disavow the efficacy of their third assignment of error. Additionally, the Supreme Court of this state, as early as 1922, held in Kansas City v. Boruff et al., 295 Mo. 28, 243 S.W. 167 (banc) that sales of property subsequent to a public announcement of condemnation, but prior to the de jure date of taking, could properly be used as comparable sales in a condemnation action. In doing so, the court distinguished sales to third parties from those made to condemning authorities during the mentioned time frame. At a somewhat later date, in State ex rel. State Highway Commission v. Rauscher Chevrolet Company, 291 S.W.2d 89 (Mo.1956), the Supreme Court held that the price paid by an ultimate condemnee for property subject to condemnation, where the transaction occurred subsequent to the announcement of a proposed project, but during the pendency of the condemnation action, was admissible. Boruff and Rauscher Chevrolet Company buttress the conclusion reached by this court that sales of property subsequent to 1965 utilized by con-demnor’s expert witnesses as comparable sales were not per se excludable.

The pivotal issue in the remaining assignment of error, condemnees’ second assignment in numerical order of assertion, is whether their acquisition of certain parcels of land subsequently condemned resulted from forced sales thereby rendering evidence of their purchase price inadmissible. The parcels of land in question are two in number and events leading up to their sale to and purchase by the condemnees, germane to the issue raised, are as follows: The first of the two parcels of land involved a renter of condemnees by the name of Sam Withers. Withers “outgrew” a house he had been renting from condemnees and moved to another residence which he was purchasing from a different owner under a “contract for a deed”. Withers got behind on the scheduled payments in the “contract for a deed”, and desired to move to and buy another home which was offered for sale by the Veterans Administration for $450.00. Condemnees suggested to Withers that he should obtain a deed to the property which he was purchasing under the “contract for a deed” and, in return, give the owner a note and deed of trust to secure any unpaid balance on the original purchase price. Withers acceded to condemnees’ suggestion and the owner of the property was apparently amenable to completing the sale of the property to Withers as suggested by the condemnees. Prior to securing a deed from the owner of the property, condemnees had loaned Withers approximately $500.00 for various purposes. After Withers acquired title to the property he had been purchasing under the “contract for a deed”, he then transferred title to the property to con-demnees by warranty deed. As consideration for the warranty deed from Withers the condemnees forgave the $500.00 they had previously loaned to him and, additionally, gave him $450.00 to buy the property offered for sale by the Veterans Administration and assumed payment of the remaining balance, approximately $1,600.00, owed on the property which he had deeded to them. There was not one scintilla of evidence in the record that the previous owner and subsequent holder of the deed of trust concerning the property in question ever threatened to dispossess Withers while the property was subject to the “contract for a deed” or to initiate foreclosure proceedings after the property became subject to the deed of trust. As previously noted, condemnees were actively engaged in the acquisition of property in the area for speculative purposes. The record discloses that their mode of operation in assembling tracts of land was to contact property owners in an area in which they were interested in and solicit acquisition of their property. The second of the two parcels of land involved was owned by Mrs. Quila Smith. This property was subject to a deed of trust to secure certain indebtedness incurred by Mrs. Smith, the remaining unpaid balance of which amounted to approximately $1,000.00. Mrs. Smith no longer occupied the property and lived in another part of the city. The property was unoccupied when the condemnees purchased it and Mrs. Smith’s “mortgage payments” had apparently been delinquent for some time. An inference may be drawn from the evidence that Mrs. Smith had abandoned the property in question. The condemnees purchased the note, or notes, secured by the deed of trust on the Smith property and, after doing so, sought out Mrs. Smith and obtained a warranty deed from her for $500.00 and cancellation of the indebtedness. There is no evidence whatsoever that the prior holder of the note, or notes, ever threatened Mrs. Smith for foreclosure.

The general rule in this state bearing on the issue at hand is stated in the oft-cited case of State ex rel. State Highway Commission v. Rauscher Chevrolet Company, supra, 1. c. 92: “It is the established rule in this state, and generally, that the price an owner paid for property being condemned is admissible as some evidence of its value at the time of appropriation. That rule applies unless circumstances appear which destroy the relevancy or probative value of that otherwise relevant and highly important evidence.” The court properly cautioned that in order for the purchase price to be admissible, the underlying sale “must have been voluntary in the sense that the seller and buyer were each capable and desirous of protecting his interest” rather than a “forced sale”. Concomitantly, admissibility of the price paid by an owner for property being condemned is relegated to the discretion of the trial court and, unless the purchase price is totally lacking in probative value, the weight to be given to it, insofar as being indicative of the condemned property’s fair market value, is a recognized jury prerogative. State ex rel. State Highway Commission v. Crain, 496 S.W.2d 867 (Mo.App.1973), and cases therein cited. The trial court’s decision to admit or refuse such evidence, since it falls within the realm of discretion, should not be disturbed on appeal absent a clear showing that the trial court manifestly abused its discretion. Epperson v. Nolan, 452 S.W.2d 263[9] (Mo.App.1970); and Union Electric Company v. Turner, 446 S.W.2d 430[7] (Mo.App.1969).

It is now appropriate to juxtapose the purchases from Withers and Smith with the principles immediately heretofore iterated. After doing so, it is the opinion of this court that the price paid by con-demnees for the Smith property ($500.00 cash for her equity in the property and cancellation of approximately $1,000.00 indebtedness owed by her against the property) was clearly admissible. Condemnees sought Mrs. Smith out and she agreed to sell and the condemnees agreed to buy the property on the terms mentioned. Con-demnees’ initial contact with Mrs. Smith was motivated by a desire to negotiate a purchase of the property from her. Although the evidence indicated that Mrs. Smith was delinquent in her payments regarding the indebtedness secured by the deed of trust on the property, the evidence also clearly disclosed that condemnees’ initial contact with Mrs. Smith was motivated by a desire to negotiate a purchase of the property from her, not to threaten foreclosure. Since she had apparently abandoned the property, it may fairly be said that a sale of the property was consummated between a willing seller and a willing purchaser. Regarding purchase of the Withers property, although it may be said to have been infused with aspects rendering admissibility of its purchase price somewhat marginal or borderline, the trial court obviously concluded that Withers was motivated by a desire to acquire funds to purchase the property being offered by the Veterans Administration and seized upon an opportunity presented to him by condemnees to rid himself of indebtedness and to acquire a place to live in that was unencumbered. So viewed, this court is unwilling to brand the trial court with an abuse of discretion in admitting the price paid by condemnees for the Withers property ($950.00 for his equity in the property and cancellation of approximately $1,600.00 indebtedness owed by him against the property). It is worthy of mention that condemnees at no time claimed that the nature and quality of the improvements on either the Smith or Withers properties were comparable to the nature and quality of the improvements on other improved properties which they relied upon as comparable sales. Condemnees were given free rein to place before the jury all relevant facts surrounding their purchase of the Smith and Withers properties and it was up to the jury to weigh the prices paid by condemnees, and the facts surrounding the purchases, in the broad spectrum of all the evidence introduced relative to the fair market value of the properties. Since there was evidence to support the Smith and Withers sales as being voluntary transactions, and condemnees were allowed to freely explain the circumstances under which the purchases were made, the trial court did not abuse its discretion in admitting the price paid by condemnees for the respective properties. In any event, the evidence was such that it immunized the trial court’s admission of both of the respective purchase prices from being stigmatized as a manifest abuse of discretion. Having determined that none of the complained of evidentiary rulings by the trial court rose to reversible heights, the judgment below is accordingly affirmed.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    D_ M_ S_, Plaintiff-Appellant, v. P_ E_ S_, Defendant-Respondent.
    Nos. KCD 27041, KCD 27024.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Dean F. Arnold, Donald E. Raymond, Kansas City, for appellant, D_ M_ S_
    S. Preston Williams, David Lee Wells, North Kansas City, for respondent, P_ E_ S_
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PER CURIAM.

Both the husband and the wife have appealed from a judgment entered by the trial court awarding the wife a divorce on her cross-petition, alimony in the sum and amount of $1,000.00 per month, custody of three minor children born of the marriage, child support in the sum and amount of $650.00 per month for each child, an attorneys’ fee of $10,000.00 (with $2,500.00 previously paid by the husband to be credited thereon), and fixing visitation rights of the husband with respect to the children. The legal propriety of awarding the wife the divorce is not questioned on appeal.

The major issues raised by the respective appeals may be rhetorically described as emanating from frustrated expectations. The husband expected to pay less alimony, child support and attorney fees than was awarded by the court and complains on appeal that they were excessive. The wife expected to receive more and complains on appeal that they were inadequate. Additionally, the husband attributes error to the trial court for not ordering the wife to render to it a yearly accounting of the amounts to be paid by the husband to the wife for child support, and the wife attributes error to the trial court for fixing too short a notification period regarding the husband’s exercise of his visitation rights and in not requiring him to keep the children for the entire visitation period.

Appellate review of this case is prescribed by paragraph 3 of Rule 73.01, V.A. M.R.

“3. On appellate review:
(a) The court shall review the case upon both the law and the evidence as in suits of an equitable nature.
(b) Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.”

The pertinent provisions of Rule 73.01 are far more perspicuous than either of the parties have been willing to concede. On appeal due deference is given to the trial court’s findings and conclusions unless the evidence is “palpably insufficient” to support them, R. L. S. v. J. E. S., 522 S.W.2d 5, 6-7 (Mo.App.1975), and to its assessment of the credibility of the witnesses, Boyd v. Boyd, 459 S.W.2d 8 (Mo.App.1970).

The record before this court is rife with conflicting evidence as to the husband’s net worth and a tone of disparity pervades the record as to the needs of the wife and children to maintain their accustomed standard of living when viewed from the opposing vantage points of the husband and wife. Nevertheless, certain evidence stands un-contradicted. In 1971, the husband had an adjusted gross income of $111,217.02, resulting in a “spendable income” of $60,228.19, in 1972, he had an adjusted gross income of $100,993.71, resulting in a “spendable income” of $60,813.77, and in 1973, the year the divorce was tried, the husband was receiving a monthly salary, after taxes, of “$4,200.00 to $4,300.00”. Also standing un-contradicted is the fact that a “one man corporation” owned and controlled by the husband paid $25,666.10 in 1971 and $23,-866.19 in 1972 into a “pension and profit sharing plan” for his benefit.

A careful review of the record in its entirety, in spite of warring claims of inadequacy and excessiveness, reveals that the amounts awarded for alimony and child support were not so excessive, when gauged by established tenets [Brosam v. Brosam, 437 S.W.2d 694 (Mo.App.1969) and Weiss v. Weiss, 392 S.W.2d 646 (Mo.App.1965)], nor so inadequate, when gauged by established tenets [Biggs v. Biggs, 397 S.W.2d 337 (Mo.App.1965)], as to constitute an abuse of discretion on the part of the trial court; nor can it be said that the evidence upon which such awards were predicated was “palpably insufficient” to support them. The ability of the husband to pay, the needs of the wife and children, their accustomed standard of living and station in life, collectively weighed, are not inconsistent with the con-cededly substantial amounts awarded by the trial court for alimony and child support. The record further reveals that the amount awarded by the trial court for attorney fees is commeasurable with the guidelines set forth in Johnson v. Johnson, 481 S.W.2d 543 (Mo.1972). The husband would have this court review the awarded amounts outside the periphery of fixed and tested principles of law simply because of their size and the wife would have the court do likewise simply because of the husband’s substantial income and the net worth she attributes to him. This court is unwilling to cast aside established and controlling principles of law and decide this case in a vacuum as each of the parties would apparently have it do.

Without benefit of established precedent or direct case authority, the husband faults the trial court for not ordering the wife to render a yearly accounting to it concerning the amounts to be paid to her for child support. This point is without merit. To impress a continuing duty upon the already overburdened trial judges of this state to constantly monitor the expenditures of funds awarded for child support would be a specious requirement for at least two reasons. One, it would require them to summarily anticipate abuses by a wife respecting such awards; two, it is unnecessary because of a viable remedy for abuses in fact by way of a motion to modify.

Regarding the wife's complaint as to a lack of specificity concerning the husband’s visitation rights with the children, the trial court’s order respecting same, in light of the record, was not erroneous and therefore will not be disturbed on appeal. Ramos v. Ramos, 232 S.W.2d 188, 198-199 (Mo.App.1950). Again, a viable remedy is available by way of a motion to modify if the lack of specificity becomes a source of serious friction.

Judgment affirmed.


author: ANDREW J. HIGGINS, Special Judge.

text:
    Jean WHITED, respondent, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, a Foreign Corporation, Appellant. Jean WHITED, Appellant, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, a Foreign Corporation, Respondent.
    Nos. KCD 27123, KCD 27118.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.

      Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for Jean Whited.
    Richard A. King, Independence, for National Western Life Ins. Co.; Constance, Slayton, Stewart & King, Independence, of counsel.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ANDREW J. HIGGINS, Special Judge.

Appeal (No. 27123) by National Western Life Insurance Company from that part of summary judgment which favored Jean Whited and required National to pay $10,-000 life insurance policy proceeds plus six per cent interest to Mrs. Whited as beneficiary of a life insurance policy, consolidated with appeal (No. 27118) by Jean Whited from that part of summary judgment which favored National Western Life Insurance Company and denied Mrs. Whited’s claim of vexatious refusal to pay.

On November 4, 1968, Gary R. Jackson, a resident of Missouri at 9616 East 33rd Street, Independence, Missouri, while a member of the United States Army stationed at Ft. Rucker, Alabama, applied by written application to Missouri Fidelity Union Trust Life Insurance Company for a $10,000 policy of life insurance, and designated his mother Jean Jackson (Whited), first beneficiary. The policy application was solicited by the company’s agent in Alabama. Missouri Fidelity subsequently merged with National Western Life Insurance Company; and both companies were, at all times, licensed to do business in Missouri as foreign insurance companies.

The application contained the following provision: “[Ujnless the first premium is paid in cash with this application there shall be no insurance contract until a policy has been delivered to me [the insured] during the good health and while the habits and occupation of the proposed insured remain as described in this application, and the first premium paid.”

At the time of execution of the application, Gary R. Jackson also executed a “Class E” military pay allotment directing the service finance officer to deduct from his December pay the sums necessary to satisfy the initial and subsequent premiums on the policy as they became due and forward them to the insurance company. Such an allotment may be canceled at will by the serviceman; no other form of payment was made.

The application instructed that the policy be mailed to the beneficiary, Mrs. Jean Jackson, 9616 East 33rd Street, Independence, Missouri. The policy was issued January 1, 1969, and mailed to the Independence address.

The policy contained the following provision: “If the insured shall commit suicide while sane or insane within two years from the date of issue of this policy, the liability of the Company shall be limited to the amount of premiums actually paid hereunder.”

It also provided: “Any provision of this policy which is, on the date of issue, in conflict with the statutes of the State in which the policy is issued or delivered is hereby amended to conform to such statutes.”

Section 376.620, RSMo 1969, V.A.M.S., provides: “In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown * * * that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void."

Suicide exclusions are recognized by the substantive law of Alabama. See Kiley v. Pacific Mut. Life Ins. Co., 237 Ala. 253, 186 So. 559 (1939); 1 Appleman, Insurance Law and Practice, § 362 (1965).

Gary R. Jackson died September 8, 1969, of a bayonet wound in the chest while on active military duty in Vietnam. His mother made claim for the proceeds of the policy of insurance and, upon the company’s refusal to pay, instituted this action for recovery of the proceeds of the policy and damages for vexatious delay. Defendant took the position that the death was the result of suicide, submitted an affidavit that the stab wound was self-inflicted in support of that position, and contended that the policy was made in Alabama where the suicide exclusion is recognized. Plaintiff took the position that the cause of death was immaterial because the contract was made in Missouri where suicide exclusions are void.

Upon completion of the pleadings, plaintiff moved for judgment on the pleadings which the trial court considered as a motion for summary judgment under Rules 55.-27(b) and 74.04, V.A.M.R. Among other things, the court found that the military allotment form of payment did not meet the contract requirement of cash necessary to complete the contract in Alabama, and ruled that the policy was a Missouri insurance contract to which the suicide exclusion would not apply; and found that defendant was reasonably entitled to insist upon judicial determination of the policy terms in question, and ruled that defendant was not to be held for vexatious delay.

A summary judgment may be entered when the party seeking it shows by unassailable proof that he is entitled to judgment as a matter of law and that the other party would not be entitled to recover under any discernible circumstances. Brummet v. Livingston, 384 S.W.2d 101, 103[1] (Mo.App.1965); Wright v. Wrehe, 415 S.W.2d 781, 783 (Mo.1967). See also Anderson v. Steurer, 391 S.W.2d 839 (Mo.1965); E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167 (Mo.1967).

Appellant National Western Life Insurance Company contends that plaintiff was not entitled to that part of the summary judgment in her favor, asserting that the record indicates circumstances under which National would be entitled to prevail. National’s position is that if Alabama substantive law is applied the suicide exclusion in the policy is a valid defense. See Kiley v. Pacific Mut. Life Ins. Co., supra. In order to bring itself within this position, National argues that the events which took place in Alabama were sufficient to complete the contract of insurance there and make Alabama law applicable in that Missouri will apply the law of the state where a contract is made in interpreting its provisions. See, e. g., Kellogg v. National Protective Ins. Co., 236 Mo.App. 837, 155 S.W.2d 512 (1941); Pickett v. Equitable Life Assur. Soc., 27 S.W.2d 452 (Mo.App.1930); Auffenberg Lincoln-Mercury v. Wallace, 318 S.W.2d 528 (Mo.App.1958); American Institute of Marketing Sys., Inc. v. Brooks, 469 S.W.2d 932 (Mo.App.1971); Grider v. Twin City Fire Ins. Co., 426 S.W.2d 698 (Mo.App.1968); Fields v. Equitable Life Assur. Soc., 118 S.W.2d 521, 524 (Mo.App.1938).

Appellant National refers to the provision in the policy application that there would be no insurance contract until the policy was delivered “unless the first premium is paid in cash with this application,” to further state its position: “If the first premium can be construed to have been paid in cash with the application the last act necessary to bind the parties to a contract took place in Alabama and the law of that state should apply—allowing defendant to prevail.” In support, appellant contends it was entitled to present extrinsic evidence of the meaning of “cash” in the application and the significance of the execution of a military pay allotment in order to show that the contract of insurance was consummated in Alabama.

As recognized by appellant National, resolution of this litigation turns on the meaning of “cash” or “cash with this application” as used in the insured’s application for the life insurance policy in question. Thus, the dispositive question is whether execution of a military pay allotment satisfied the requirement of the policy application for payment, i. e., “payment of the first premium in cash with this application.”

The trial court ruled that execution of the military pay allotment “amounts to nothing more than an agreement to pay through an intermediary at a future date,” subject to election of the insured to continue the order in force, “and does not meet the contract requirement of cash necessary to bind the defendant to the insurance obligation when the application was taken. * * * accordingly, * * * subject insurance contract became effective, according to its terms, upon delivery of the policy to plaintiff in Missouri. It is therefor[e] a Missouri contract to be enforced and interpreted according to the laws of this state. * * * Suicide exclusion clauses being prohibited by statute in this state and such * * * being the only defense to payment of the policy death benefit, plaintiff is entitled to recover.”

This determination, as attacked by appellant National, should be affirmed, if, as a matter of law, and without need to resort to extrinsic evidence, execution of a military pay allotment is not the equivalent of “cash” or “cash with this application” as required by the policy application for its completion.

As in the trial court, the problem presented is the meaning of certain words as used in the insurance contract, specifically in the policy application. Any doubt of their meaning raised an issue of law resolvable on motion for judgment on the pleadings. Gehner v. Equitable Life Assurance Society of U. S., 430 S.W.2d 621, 623[1] (Mo.App.1968).

Meaning of words or terms in an insurance contract is tested by common understanding and speech of men. If there is a conflict between a technical definition and the meaning normally understood by the average layman, the layman’s definition will be applied unless the technical meaning is intended. Greer v. Zurich Insurance Co., 441 S.W.2d 15, 27[12] (Mo.1969).

“Cash” is an unambiguous word commonly and normally understood by laymen due to its universal usage in business, commercial and financial transactions. Webster’s New International Dictionary, 2d Edition, accords “cash” primary meanings, viz., “Money, esp. ready money; strictly, coin or specie, but also, less strictly, bank notes, sight drafts or demand deposits at a bank. * * * Money or its equivalent paid immediately or promptly after purchasing; as, to sell goods or to give a discount for cash.” In accord is the definition of “cash” in Black’s Law Dictionary, Revised Fourth Edition, viz: “Money or its equivalent; usually ready money.” “With reference to the terms or time of payment, ‘cash’ has been defined as meaning immediate payment; money paid down; money or its equivalent paid immediately or promptly after purchasing.” 14 C.J.S. Cash, p. 16.

Case law also recognizes the foregoing commonly understood and employed meanings of “cash.” Lee v. State Department of Public Health and Welfare, 480 S.W.2d 305, 309 (Mo.App.1972), defined “cash” as money or currency issued 'by lawful authority intended to pass and circulate as such. See also State v. Darby, 165 S.W.2d 419, 420 (Mo.1942); Neufield v. United States, 118 F.2d 375, 387 (D.C.App.1941). Finally, and with direct reference to the insurance business, In re Palliser, 136 U.S. 257, 263, 10 S.Ct. 1034, 1035, 34 L.Ed. 514 (1890), recognized “ ‘cash’ * * * as in common speech” to mean “ready money, or money in hand, either in current coin or other legal tender, or in bank-bills or checks paid and received as money, and does not include promises to pay money in the future. A sale on credit is not, ordinarily speaking, and in the absence of any evidence of usage, a sale for cash, within the meaning of that word as used in statutes or contracts. * * * ‘Life insurance is a cash business. Its disbursements are all in money, and its receipts must necessarily be in the same medium. This is the universal usage and rule of all such companies.’ Hoffman v. Hancock Ins. Co., 92 U.S. 161, 164 [23 L.Ed. 539], * * * the only point decided in that case was that an agent of an insurance company could not, unless authorized by the company, accept personal property as money in payment of a premium; no question arose or was considered as to the premium note; and it cannot reasonably be inferred that the learned justice meant to intimate that a premium note was cash or money, before the amount thereof was paid by the insured and received by the insurance company, according to the terms of their contracts.” Direct in point is Newsom v. New York Life Ins. Co., 60 F.2d 241, 243 (6th Cir.1932), where execution by applicant for life insurance policy of note to local agent for first premium was not payment “in cash” so as to render policy effective from date of application, which application provided that “if the applicant * * * pays the agent in cash the * * * first premium * * then said insurance shall take effect and be in force * * * from and after the time this application is made * * *The use of “in cash” in the application in order to complete the policy and put the insurance in force “indicates an intent to require the payment to be made within the restrictions that are ordinarily imported by that term.” Just as the. note in the foregoing case was but a promise to pay the initial premium in the future and was not a payment “in cash,” the military pay allotment executed by Gary R. Jackson was but a promise, revocable at will, to have his finance officer pay the initial premium in the future and was not a payment by “cash” or “cash with this application.”

There is also a similarity in meaning of “cash with this application,” as used in the policy, and the familiar terms and usages from the past of “cash on the nail” and “cash on the barrelhead,” noted in connection with Webster’s definition of “cash” in Webster’s Third New International Dictionary.

In support of its contention that the court should have taken extrinsic evidence on the meaning of “cash,” appellant National cites E. O. Dorsch Electric Co. v. Plaza Construction Co., supra; Cure v. City of Jefferson, 380 S.W.2d 305 (Mo.1964); National Merchandising Corporation v. McAlpin, 440 S.W.2d 489 (Mo.App.1969); and Clark-Lami, Inc. v. Cord, 440 S.W.2d 737 (Mo.1969). These cases deal with terms unique to problems in electrical contracting and rock excavation, and with jurisdiction and meaning of “good will” in a merger agreement. They are not in point on the meaning of “cash,” the commonly understood meaning and usage of which is demonstrated by the authorities previously cited.

Accordingly, the trial court properly determined as a matter of law that the military pay allotment executed by Gary R. Jackson did not satisfy the contract requirement of payment of the initial premium by “cash” necessary to complete and effectuate the contract in Alabama prior to its subsequent delivery to the insured in Missouri. Missouri law thus applies to this contract, and defendant’s defense of suicide as provided in the policy was properly disallowed. Section 376.620, supra.

With the appeal of National in this posture, it is not necessary to discuss its remaining point with respect to the “conformity clause” quoted from the policy in the statement of fact. Nor is it necessary to discuss respondent’s theory of recovery under the “principle contacts” doctrine. See Restatement, Conflict of Laws 2d § 188, p. 575.

Appellant Whited contends the court erred in an abuse of discretion in overruling plaintiff’s motion to submit to a jury penalties and damages for vexatious refusal to pay. Her argument is that the question of an award for vexatious delay and an allowance for attorney fees was for the jury because the evidence showed that defendant’s refusal to pay the policy proceeds was based solely upon the defense of suicide which had been previously nullified by Section 876.620, supra. Appellant concedes that recovery and the amount of damages for vexatious delay in making payment under an insurance policy are matters discretionary with the trial court. Noble v. Missouri Ins. Co., 204 S.W.2d 446, 450[11] (Mo.App.1947); Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360, 366 (1942).

The trial court, in refusing penalties and damages for vexatious delay, found that the evidence did not show that defendant’s refusal to pay was arbitrary or unreasonable but that it was reasonable for defendant to seek a judicial determination of the meaning of the terms in the policy in question.

Where reasonable questions of law or fact exist between parties to an insurance contract, the insurance company, as well as any other party, is entitled to an adjudication of such questions without penalty. Duckworth v. United States Fidelity & Guaranty Co., 452 S.W.2d 280, 287[10-12] (Mo.App.1970); Sommer v. Metropolitan Life Insurance Co., 449 S.W.2d 644 (Mo. banc 1970).

In this case, the questions presented, the briefs of the parties, and this opinion demonstrate a genuine dispute in which it was reasonable for the defendant to seek an adjudication. Accordingly, defendant should not be held to penalties for vexatious delay.

Judgment affirmed.

All concur.

      . Defendant does not contend that the insured contemplated suicide at the time he applied for the policy.