author: PRITCHARD, Judge.

text:
    Alice DOYLE, Respondent-Appellant, v. Albert DOYLE, Jr., Appellant-Respondent.
    Nos. KCD 29757, KCD 29765.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.

      Robert F. Sevier and Roger Guy Burnett, Liberty, for Alice Doyle, respondent-appellant; Sevier & Burnett, Liberty, of counsel.
    Joseph Y. DeCuyper and Hsiang-Lin Lee, Kansas City, for Albert T. Doyle, Jr., appellant-respondent; Snowden & DeCuyper, Kansas City, of counsel.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

Appellant, Alice Doyle, here contends that the trial court’s division of marital property in this dissolution case was an abuse of discretion in that it awarded her only $88,515.00, out of the total net marital assets of about $197,881.00. The award to respondent, Albert Doyle, Jr., after allowance for his payment of debts, was about $109,300.

Alice and Albert were married November 8, 1957. Albert then worked as a painter-stenciler, later he sold insurance, and operated heavy equipment until he entered the farming business with his father in 1968 on a full time basis, which was his occupation at the time of dissolution. He was considered to be an excellent farmer in the community. After the marriage, Alice had been continuously employed in a variety of jobs, and while they were on the farm in Kearney, Missouri, she worked for two banks. At the time of dissolution she was earning $525.00 per month as a secretary. In addition to her work, she was also a homemaker, both parties agreeing that she was a good housekeeper and cook until the marriage began to deteriorate. When the parties built their farm home, both contributed to that work, she working inside the house, painting and varnishing, and he doing electrical, heating and carpentry work. The farm was purchased with proceeds from the sale of a house and savings from Alice’s earnings of $3,000.00 per year and Albert’s heavy equipment income during the early part of the marriage. In the year of dissolution, Alice was working 40 hours a week or about 2,000 hours a year compared to Alfred’s farm work of 2,500 to 3,000 hours annually. Prior to the separation Alice mended Albert’s clothing and did the washing and ironing. The parties were in some dispute as to Alice’s help in the farm operation, she testifying that she helped load hogs, separate cattle, paint fences, build grain bins and was keeping the farm books. Albert denied that she helped him load hogs or feed the stock.

During the course of the marriage, joint savings and checking accounts were accumulated, all living and farming expenses being paid out of the cheeking account. Alice deposited $100.00 per month into the savings account, and after she had accumulated $5,000.00, it was withdrawn to purchase cattle. In November, 1973, Albert took all but $100.00 from the joint account, and placed it in a joint account with his father. This precipitated Alice’s refusal to file a joint income tax return with him.

The parties had no children, it being agreed by them that they would not have children until they could properly care for a family. In 1964, after the first home was paid for, Alice wanted children but was told there was not enough money. Albert testified that after the move to the farm in 1965, he wanted children, but Alice, being then 28 years old, felt that she was too old, and being unable to drive, there was no way to take any child to the doctor or to school. Albert refused to teach Alice how to drive, saying that he was not qualified. Her sister did teach her and she obtained her license in 1975, but Albert would not allow her to drive the family car even though he drove it once every one or two months, since he used the pickup truck. She later bought her own car, but he would not permit her to put it in the two-car garage, one-half being used for the storage of the seldom used family car, and the other half being used by him to store chemicals.

Albert would not attend church, which Alice attended regularly with neighbors. He would not take her to social events, nor would he attend her parents’ 50th wedding anniversary. On two occasions, Albert beat Alice, once when she signed for a registered letter to him although she did not open it. At the time of that incident, he threw his dinner in the kitchen sink, poured lemonade over it, and threatened to kill her if she left him and tried to take any of their property. Albert denied that he struck Alice, but admitted that he cursed her frequently.

The parties do not dispute the trial court’s finding of the gross and net values of their marital property, but only the division thereof. Alice contends in her sole point that the facts here speak of an even stronger case for her being awarded at least one-half of the marital property than those in the case of In re Marriage of Cornell, 550 S.W.2d 823 (Mo.App.1977). In her conclusion she asks for a money judgment of $100,000 in lieu of the $80,000.00 money judgment awarded by the trial court. She says that the award was against the weight of the evidence after taking into consideration all relevant factors including those enumerated in § 452.330, RSMo 1969: (a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker; (b) The value of property set aside to each spouse; (c) The economic circumstances of each spouse at the time the division of property was to become effective; and (d) The conduct of the parties during the marriage. Subsection 2 of that statute defines “marital property” as all property acquired by either spouse subsequent to the marriage. The only non-marital property found by the court was Albert’s $5,000 life insurance policy in the Farm Bureau Insurance Company. Albert’s Point Y contends that the court made an excessive award to Alice considering the four factors of § 452.-330.

It is plain from this record that the marital property was acquired as a result of the joint efforts of the parties. In Gorder v. Corder, 546 S.W.2d 798, 804[9] (Mo.App. 1977), “[T]he * ⅜ * Act views the acquisition of ‘marital property’ as a partnership endeavor, and it enunciates a standard for dividing such property which is flexible enough to weigh and balance the respective contributions of the spouses and to accommodate consideration of manifest justness and fairness.” Here, it is clear that Alice's earnings went into the marriage partnership. Additionally, it is without doubt that she was an efficient homemaker, and it is not contested that Alice at least helped in separating cattle, building grain bins and keeping farm books, all pertaining to the farm operation. In the Cornell case, supra, the court reversed an award to the wife of 29.77% to 32% of the marital property and directed that the property be practically divided equally where, at page 826, the court said, “Although the husband was the obvious breadwinner and his efforts at Leg-gett & Platt were the primary source of the family’s wealth, the statute also requires recognition of the wife’s role as a mother and homemaker. Gain v. Cain, 536 S.W.2d 866, 874 (Mo.App.1976). Also not to be ignored is the fact Shirley worked for two years to support the family while Harry completed his college education. In re Marriage of Vanet, supra, 544 S.W.2d 236 at 241.”

There is no evidence at all of any misconduct on Alice’s part other than her wish not to have children, which is insubstantial. On the other hand, there is evidence of Albert’s mistreatment and abuse of Alice. This factor obviously was not taken into account by the trial court in its award of a greater amount of marital property to Albert, and the amounts should be equalized. This disposes of Albert’s Point V.

As to the remaining contentions here made by Albert: First, that the court erred in not dismissing Alice’s petition because of her (alleged) failure to answer interrogatories. The brief does not set forth the interrogatories and answers; he does not demonstrate wherein and why the trial court erred, or whether it abused its discretion in applying sanctions under Rule 61.01 for failure to comply with discovery. Second, that the trial court erred in permitting Alice to read parts of his deposition as admissions against interest. Again, Albert has failed to refer this court to statements he considered not to be admissions against interest. These are violations of Rule 84.-04(d), and the contentions (Points I and II) will not be considered.

Albert next contends that the court erred in reversing its previous ruling sustaining objections to witness Comb’s testimony as to the value of certain farm machinery owned by the parties. The objections were that there was no foundation laid that the witness was familiar with the types of equipment, he not having viewed them. Assuming that the testimony was inadmissible, there was no prejudice because the trial court did not accept Comb’s testimony as to values, its findings being in line with values given by owners Alice and Albert in their testimony. Combs gave a total value of $13,000; Alice a total value of $8,440; Albert a total value of $6,400; and the court found the value to be $8,050. Thus, Albert has not demonstrated an absence of sufficient competent evidence to support the trial court’s decree in this court-tried case where it is practically impossible to predicate reversible error on erroneous admission of evidence. City of Butler v. Kuecker, 559 S.W .2d 575, 578[4] (Mo.App.1977); Farr v. Lineberger, 207 S.W.2d 455, 459[6, 7] (Mo.1948). Point III, raising the contention, is overruled.

In Point IV Albert contends that the court erred in finding that growing crops on rented ground, valued at $22,230, was marital property. He argues that the testimony of the value of growing crops was mere speculation, citing Williams v. Williams, 548 S.W.2d 224 (Mo.App.1977). That case held merely that the (future) profits at the time of harvest were a mere expectancy, and thus is to be distinguished. Albert testified extensively about the number of acres of wheat, soybeans and corn on the three rented farms. Witness Combs personally inspected the grain fields the day before trial, and gave his expert opinion as to their fair market value, as a tenant’s share, standing in the field. “Annual crops raised by yearly labor and cultivation are fructus industriales, and are to be regarded as personal chattels, independent and distinct from land, capable of a sale without regard to whether growing or matured.” Swafford v. Spratt, 93 Mo.App. 631, 67 S.W. 701, 702 (1902), and cases cited. The values given by Combs clearly related to the crops in place, and were much less than the estimate of potential value at harvest time, also given by him. These crops, planted and cultivated during the marriage, were marital property, and the trial court did not err in so considering them.

Albert’s Point VI contention is that the court erred in allowing 8% interest on the money judgment given Alice. Alice concedes that the proper rate is 6%. § 408.040, RSMo 1969. That judgment, upon which Albert posted a supersedeas bond, upon which Alice was unable to execute, and as herein modified (increased) should bear 6% interest from the time of entry. Compare Sebastian County Coal & Mining Co. v. Mayer, 310 Mo. 104, 274 S.W. 770 (1925); Whitmire v. Lawrence, Barry and Stone Counties Mut. Ben. Ass’n, 286 S.W. 842 (Mo.App.1926); 45 Am.Jur.2d, Interest & Usery, § 108, p. 94; and Anno. 4 A.L.R.3rd 1221.

Point VII is that the trial court failed to include a brief opinion containing a statement of grounds for its decision after request therefor. An examination of the findings which cover the factors of § 452.-330 shows it to be sufficient as to grounds. The point is overruled.

That part of the decree awarding Alice $80,000.00 with interest at the rate of 8% per annum, payable in installments, is reversed and the case is remanded with directions to enter a new money judgment for appellant, Alice Doyle, in the amount of $90,000, payable in installments, $20,000 as due on September 1,1977, and in five equal installments of $14,000 on the same day of each year thereafter, together with interest at the rate of 6% per annum. In all other respects, the judgment is affirmed.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    In re ESTATE of Mattie B. SYMPSON, Deceased, Robert B. Sympson, Appellant
    No. KCD 29728.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.

      Robert B. Sympson, pro se.
    Stanley I. Dale, Dale, Flynn, Bauman & Liles, St. Joseph, for respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Robert B. Sympson appeals from an order entered July 13, 1977, setting aside a previous order which had made certain allowances to him as the surviving spouse of Mattie B. Sympson and which had refused letters of administration in regard to this estate. Sympson’s Points Relied On are: (1) that the earlier judgment had become final prior to July 13, 1977, and was not subject to being set aside; and (2) that the court erred in deeming the earlier judgment vulnerable because of lack of notice to other parties and in allowing the motion despite certain alleged inadequacies. Sympson attempts in his reply brief for the first time to supplement those complaints by an additional ground, but that additional ground is improperly raised by reply brief and therefore will not be considered. Protection Mutual Ins. Co. v. Kansas City, 551 S.W.2d 909[1] (Mo.App.1977); Morris v. Reed, 510 S.W.2d 234[4] (Mo.App.1974).

The essential facts may be summarized as follows. On April 8,1977, Eliza B. Sprengel and Helen E. Mitchell, sisters of the deceased, filed application for letters of administration in the Probate Court of Buchanan County. A few days later, Sympson filed an application for an allowance of exempt property, statutory allowances, and statutory maintenance, and in the same application he requested an order of the court refusing letters of administration under the provisions of Section 473.090 (all statutory references in this opinion are to RSMol969). Concurrently with that application, Symp-son also filed a motion to disqualify the probate judge. In response to the motion to disqualify, the probate court on April 21, 1977, transferred the proceedings to the circuit court for further proceedings.

On April 26, 1977, Sympson’s counsel appeared before the circuit court ex parte, and the court issued an order on April 27, 1977, granting Sympson household goods and items as exempt property, a maintenance allowance of $15,000 and a homestead allowance of $4,359.40. This order also purported to adjudicate and vest title in Symp-son with respect to various items of property, including the following: (1) a diamond ring valued at $3,000 which Sympson described in his application as follows: “One engagement Ring, a 14 K. White Gold Setting, with an Old Mine Cut Diamond, weighing approximately 1.33 carats, which was in the decedent’s jewel box on her dressing table at the time of her demist [sic]; and which said jewel box Eliza Bed-ford Sprengel unlawfully and surreptitiously removed [from] decedent’s dressing table on the 1st or 2nd day of February, 1977; and when on the 2nd or 3rd day of February, 1977, when Eliza Bedford [Sprengel] brought said jewel box back to the apartment that decedent and her surviving spouse had been occupying and gave it to the surviving spouse, the applicant herein, he opened said jewel box, and the above described Old Mine Cut Diamond and its 14 K. White Gold Setting had been removed and was missing, and still remain missing to this day”; (2) “Cash for money advanced to Helen Mitchell and Eliza B. Sprengel for maintenance, repairs, improvements, and taxes on jointly owned property at 2607 Ashland Blvd., St. Joseph, Missouri, $3,280.96”; and (3) a cash sum of $123 to which Sympson referred in his application in the following terms: “Cash, which in the form of U.S. Currency Eliza Bedford Spren-gel unlawfully book [sic] from decedent’s pocket book on February 2,1977, and which said Sprengel thereafter unlawfully and surreptitiously removed from the apartment occupied by decedent and her surviving spouse, and which currency, although said Sprengel has been requested by decedent’s surviving spouse to return said currency to the surviving spouse so that he could make a proper report of the same to the Probate Court, said Sprengel has failed and refused to return such money to the surviving spouse, applicant herein.”

The April order by the circuit court further found that Sympson was entitled to an order refusing to grant letters of administration, and the court denied and dismissed the application for letters of administration theretofore filed by the two sisters. No notice was given to the sisters or their attorney with respect to said hearing and order by the circuit court, nor was any notice given to them after the entry of that order as provided by Rule 74.78.

On July 6,1977, the sisters by their attorney filed a motion to set aside the April order just described. On July 13, 1977, the circuit judge sustained that motion based on the following findings: “The Court further finds that counsel for Robert B. Symp-son appeared in this Court on April 27,1977 and obtained an Order relative to the request of Robert B. Sympson; and that said Order was obtained from the Court without having first notified Eliza B. Sprengel and Helen E. Mitchell or their attorney of a hearing in this cause, and for this reason, the Order entered by this Court on April 27, 1977 should be set aside and the matter set for hearing before the Court.”

I.

Before addressing Sympson’s contentions, a motion to dismiss the appeal filed by the sisters (and previously ordered by this court to be taken with the case as a whole) awaits attention. The sisters urge three grounds for dismissal. Their first ground is that the order of April 27,1977, is not a final order. Even assuming this to be correct, that order is nevertheless appeala-ble under Section 512.020 as a “special order after final judgment.” State ex rel. Potter v. Riley, 219 Mo. 667, 118 S.W. 647 (banc 1909); Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048 (banc 1914); Scott v. Rees, 300 Mo. 123, 253 S.W. 998 (1923).

As their second ground for dismissal, the sisters argue that Sympson presented his same points in a prior petition to this court for a writ of prohibition and that the denial of that petition is now res judicata. A denial of an application for a writ of prohibition does not necessarily reflect any view by the court on the merits, but rather may and very often does constitute only a ruling that the situation does not warrant utilization of the extraordinary writ of prohibition. Therefore there is no basis for the sisters’ claim of res judicata.

The third ground for dismissal is that Sympson’s appeal was untimely. The record shows that he did file this appeal within ten days after the order of July 13, 1977, became final. It was therefore timely. There being no merit in any of the grounds urged for dismissal, the motion to dismiss the appeal is overruled.

II.

Turning now to Sympson’s points, he argues first that by July 13,1977, the judgment of April 27, 1977, had become final and was not subject to being set aside. In support, he argues that no exceptions had been filed under Section 474.290(6), no motion for new trial had been filed, no notice of appeal had been filed, and more than 30 days had expired. This argument leaves out of account Rule 74.32 which provides three years within which a judgment may be set aside for irregularity. White v. Huffman, 304 S.W.2d 909 (Mo.App.1957), holds that lack of proper notice does constitute an “irregularity” within the meaning of that rule. Although White involved a failure to give a notice required by statute, the lack of notice is equally as important even though there be no statutory requirement for notice. This proposition is more fully developed under point III below.

III.

Sympson’s second point is two-pronged. In the first place, he argues that the trial court mistakenly set aside the April judgment for lack of notice because “the statutory proceedings for awarding allowances to a surviving spouse is ex parte and summary in small estates, and there is no requirement for notice to possible interested persons in the estate.” Sympson is correct in saying that the statute providing for refusal of letters in small estates, Section 473.090, makes no provision for notice to anyone. Also, although not cited by Symp-son, Section 472.100.1 says that “[n]o notice to interested persons need be given except as specifically provided for in this code or as ordered by the court.” However, that section immediately goes on to provide: “When no notice is required by this code, the court may require such notice as it deems desirable by a general rule or by an order in a particular case.” As a practical matter, there may be little reason for any notice in the situation of the usual small estate where the family comes to an amicable agreement for distribution of the property and creditors are taken care of in an informal manner. The situation in this case is vastly different.

Here the parties were already locked in combat in the probate court before the removal at Sympson’s instance to the circuit court. That contest between Sympson and the sisters was bitter, as demonstrated by the acrimonious allegations contained in Sympson’s application filed in the probate court, which are above quoted. Although in the usual case practicality may justify a calculated gamble in dispensing with notice, notice to the sisters under the facts of this case certainly should have been given and the failure to do so cannot possibly be excused.

Even in the absence of a specific requirement for notice by statute or court rule, constitutional considerations make notice imperative to parties who will be directly affected by the order. This point is strongly stated in a leading case, Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (Mo. banc 1951), where the court held in part as follows:

“It may be conceded that no provision of that statute required a notice to be here given. But the requirement of reasonable notice goes deeper than that.”
“The question instantly before us goes deeply into the underlying principles of due process. In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court’s power. Opportunity for a litigant to present his views as to the matters instantly before the court which may affect his rights is the very foundation stone of our procedure. The requirement of notice can result in no hardship. Nor is it restrictive of the trial court’s freedom of action in the exercise of its judicial discretion. In 66 C.J.S. Notice § 14, p. 652, it is said: ‘While the view had been expressed that usually notice of summary action is not essential, it has been held or recognized that, where an act to be performed by a court or other authority will especially affect a particular individual, reasonable notice should be given to him, so that he may appear and be heard, even though the giving of notice is not required by statute, and that, where a statute confers power on a judicial or an administrative agency to render a judgment or make an order affecting rights of persons or property, and no provision is made for notice, the court will require a reasonable notice.’ ”

That rule has been frequently and uniformly followed. See for example, In re Waters’ Estate, 153 S.W.2d 774 (Mo.App.1941); In re Jackson’s Will, 291 S.W.2d 214 (Mo.App. 1956); Baker v. Baker, 274 S.W.2d 322 (Mo. App.1955). Under that doctrine, the sisters were entitled to notice and a right to be heard before the circuit court entered an order having the effect of divesting them of any share in their sister’s estate and in addition determining claims to property and at least one item of indebtedness which were matters of contest between the parties. The trial court was eminently correct in setting aside the April judgment which was entered without such notice and opportunity to be heard.

Sympson is equally incorrect in his contention that the motion by the sisters to set aside the April judgment was inadequate and barred by the statute of limitations. Sympson’s argument on this sub-point rests entirely upon the requirements of Section 474.290(6) which deal with the time for and the form of exceptions to a homestead allowance. The complete answer to Sympson’s present argument is that the sisters did not purport to proceed under Section 474.290(6), and therefore the provisions of that section are completely irrelevant.

Affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    Richard W. GILPIN and Brenda G. Gilpin, Appellants, v. Raymond O. PITMAN and Raymond F. Pitman, d/b/a Pitman Manufacturing Company, and the Gas Service Company, and A. B. Chance Company, Respondents.
    No. KCD 28602.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.
    Application to Transfer Denied March 13, 1979.

      Walter R. Simpson, Robert Ernest Gould, Kansas City, for appellants; Sheridan, Sanders, Mason & Simpson, Kansas City, of counsel.
    Douglas Stripp, James F. Duncan, Kansas City, for respondent The Gas Service Co.; Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

Appellant, Richard W. Gilpin, (hereafter plaintiff), a hydraulic mechanic, employed by L. A. Moore Company, was injured on April 21, 1971 while making repairs on a Pitman Hydraulic Crane (Hydra-Lift) owned by the respondent, Gas Service Company, (hereafter defendant), when the crane boom fell, crushing his right arm, which after several unsuccessful repair operations was amputated below the elbow. The plaintiff and his wife, Brenda, brought this action originally against defendant Gas Service Company, the owner; the partners in the Pitman Manufacturing Company, the manufacturer; and A. B. Chance Company, the distributor of the Hydra-Lift. They voluntarily dismissed their case against Pit-man before trial; the trial court sustained the Chance Company’s motion for a directed verdict at the close of plaintiffs’ evidence; and, the trial jury brought in a verdict for defendant Gas Service. The plaintiffs’ motion for a new trial as to Gas Service was overruled, and plaintiffs timely appealed. No appeal was taken as to the court’s action directing a verdict for the Chance Company.

The plaintiffs submitted their case against the defendant, The Gas Service Company, upon the theory that the Hydra-Lift was equipped with a hydraulic hose, of improper length, attached to the base of the lifting cylinder and to the top of the holding valve, and that the excess length had been placed down through the turret of the equipment and thereby created a dangerous condition to persons repairing such equipment; that defendant knew, or by using ordinary care could have known, of this dangerous condition; that Richard Gilpin did not know, and by suing ordinary care could not have known, of the dangerous condition; that defendant failed to warn plaintiff or his employer of the dangerous condition; that defendant was thereby negligent; and, that plaintiff, as a direct result of such dangerous condition, was injured and damaged.

Plaintiffs raise five points on this appeal. Point Y asserts error because the court gave defendant’s Instructions No. 3 and No. 5, two converse instructions. Plaintiffs made no objection to these instructions in the court below at the time of trial nor was this alleged error raised in the motion for a new trial, so nothing was preserved for review on that point, and it will not be ruled. Rule 70.02 and Rule 78.07; Price v. Ford Motor Credit Co., 530 S.W.2d 249, 253[1] (Mo.App.1975); Kelso v. C. B. K. Agronomics, Inc., 510 S.W.2d 709, 724[13] (Mo.App.1974).

The plaintiffs’ first four points are directed to Instruction No. 6, given at the request of the defendant, covering plaintiff Richard W. Gilpin’s contributory negligence. This instruction is as follows:

“INSTRUCTION NO. 6
Your verdicts must be for the defendant, whether or not defendant was negligent, if you believe:
First, plaintiff Richard W. Gilpin either:
failed to suspend or support the hydraulic boom, prior to working on the hydraulic lines associated with the boom lifting cylinder, or disconnected a hydraulic line on the boom lifting cylinder holding valve without determining where the other end of the hydraulic line was connected, or put his arm underneath the boom when hydraulic fluid was squirting under pressure from the hydraulic line which he had just disconnected; and
Second, plaintiff Richard W. Gilpin’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
Third, such negligence of plaintiff Richard W. Gilpin caused or directly contributed to cause any damage plaintiffs may have sustained.
MAI 32.01 Modified By the Defendant” (Emphasis supplied)

Plaintiffs’ Point I urges that there was no competent and substantial evidence that he “put his arm underneath the boom when hydraulic fluid was squirting under pressure from the hydraulic line” as required by the third disjunctive submission in Instruction No. 6. A similar attack is leveled at the first disjunctive submission, that he negligently failed to support the boom (Point II). In his Point III, plaintiff asserts error because the charge of negligence against him in the second disjunctive submission, that he disconnected the hydraulic line on the boom lifting cylinder without determining where the other hydraulic line was connected, fails to sufficiently hypothesize facts necessary to premise a finding of contributory negligence and in effect was a directed verdict against him.

Plaintiffs’ Point IV charges that Instruction No. 6 was an unauthorized deviation from MAI 32.01 in violation of Rule 71.01(b) (sic) in that the word “directly” was omitted before the word “caused” in paragraph Third of the instruction. No such objection was raised at the trial or in plaintiffs’ motion for a new trial, and therefore, plaintiffs’ Point IV was not preserved for review and will not be here considered.

Since the defendant, while stoutly arguing that Instruction No. 6 was proper and supported by the evidence, further takes the position that any error in Instruction No. 6, if any, was rendered harmless because the evidence failed to establish a cause of action based upon negligence against the defendant. These appellate positions of the parties require a rather complete summary of the evidence, some of which is highly technical and in some instances somewhat obscure. Of course, if the evidence did not establish that plaintiffs made a submissible case, the matter ends there, regardless of error in Instruction No. 6.

In viewing this initial problem, the Court is bound by the long-established rule that the evidence must be viewed in the light most favorable to the plaintiffs and they are given benefit of every reasonable inference to be derived therefrom, and the defendant’s evidence is disregarded unless it aids the plaintiffs. Houghton v. Atchi-son, T. & S. F. R. Co., 446 S.W.2d 406, 408[1] (Mo. banc 1969); Wardenburg v. White, 518 S.W.2d 152, 154[1] (Mo.App.1974).

When so considered, the evidence supports and a jury could find the following facts:

The equipment involved is a Pitman Hydraulic Crane known as a “Hydra-Lift” and designated by the defendant by its equipment No. 927. Basically, it can be described as a boom mounted on a flat truck bed and used for lifting and moving heavy objects. It operates by use of hydraulic fluid exerting or releasing pressure into or from several internal cylinders upon the same principle as a motor car is raised or lowered in a service station by hydraulic lifts. The source of power is the truck engine and the boom is controlled by a series of levers located on either side and at the rear of the truck cab and the boom can be raised, lowered, extended and moved from side to side as necessity demands. The specific parts of this equipment, of significance here, are:

1. The boom, and its inner extension mechanism, with a total weight of approximately 1000 pounds. It is anchored in a device known as the turret, which can swivel (and thus move the boom from side to side) located directly back of the truck cab.
2. The turret is fixed to a “tower” directly under it.
3. Directly beneath and parallel to the boom and affixed to it is a hydraulic cylinder called a “lifting cylinder”, the purpose of which is to raise and lower the boom.
4. Affixed to the side of the lifting cylinder is an appliance called the “holding” (or safety) valve which has three hose connections or fluid conduits, one of which ordinarily connects to the end of the lifting cylinder, and the purpose of which is to hold the pressure in the lifting valve when the boom is raised or carrying a load even though the hydraulic system is for some reason not functional, such as a failure of the truck motor or the absence of hydraulic fluid in other parts of the system. This line is referred to in the record as the “critical” line. It is calculated to hold the boom in position and prevent it from falling in the event of sudden loss of pressure. As originally manufactured and usually maintained, the “holding” line is made of metal tubing, is about one foot to eighteen inches long, and runs from the holding valve to the end of the lifting cylinder and is either visible to a worker standing on the truck bed on that side of the boom or can be traced by hand over its length. If properly installed, no part of this line extends down into the tower beneath the turret.
5.The control valve or panel which is located beneath the turret, tower and truck bed, to which is attached several hydraulic lines or tubes from various parts of the equipment, but not the holding or “critical” line. The flow of hydraulic fluid into the various cylinders of the equipment is through this valve and is controlled in ordinary use by the levers beside the truck cab.

The lines that run to the control beneath the truck reach it from an opening about the size of a saucer located in the top of the tower directly under the turret. The plaintiff estimated the number of such lines to be five, and another hydraulic mechanic placed the number at eight. Of course, these lines were not visible to a man working from the truck bed beyond the point where they passed under the turret and into the tower.

The Hydra-Lift unit upon which the plaintiff was working when he was injured on April 21,1971 was owned by the defendant and was purchased by it, together with the flat bed Ford Truck on which it was then mounted, on January 17, 1964. Both the Hydra-Lift and the truck were used equipment when purchased by the defendant. The type of holding valve that was on the unit when plaintiff was injured was manufactured by the Racine Valve Company in 1964 and the Hydra-Lift was manufactured by Pitman in 1962, so the holding valve involved could not have been installed by Pitman when the lift was manufactured. No evidence appears in the record as to who added the holding valve, how or when it was added to the equipment, or whether it was part of the equipment when it was purchased by the defendant in 1964, but it was stipulated that it had been a part of the equipment since May 26,1970, or eleven months prior to the date of plaintiff’s injury. At the time Pitman manufactured the Hydra-Lift in 1962, the holding valves as well as boom rests (to hold the boom up without the use of hydraulic pressure) were optional equipment and were not routinely included in the manufacture of the lift, and the unit here involved was not equipped with either when purchased by the defendant and had no boom rest on the date of the injury.

The Ford truck originally purchased with the Hydra-Lift by the defendant in 1964 wore out, and in May of 1970 the defendant had the Hydra-Lift reconditioned and transferred to a 2-ton Chevrolet truck by National Truck Company. From that time until the date of the plaintiff’s injury, no one but hydraulic and other mechanics, regular employees of the defendant, worked upon or made inspections of the hydraulic system. These employees had installed a universal hydraulic hose on the unit on November 5, 1970, five months before plaintiff’s injury, but the defendant’s records do not show where it was installed.

On the date of plaintiff’s injury, the defendant delivered this equipment to plaintiff’s employer, L. A. Moore Company, for repairs, with the following instructions: “Replace all hoses showing wear; check unit for leaks and repair; and, check over and make repairs as needed”. This equipment was taken to the Moore place by an employee of the defendant, Ira F. Teeter, a machine operator. He was instructed to wait for the repairs to be made since the defendant wanted the equipment back in service as soon as possible and the Moore people were so advised. The plaintiff was assigned this work and told to get it done as soon as he could. When he commenced this work, all of the connections on the holding valve were made of rubber hose. After the collapse of the boom and plaintiff’s injury, it was found that the hydraulic line upon which plaintiff had been working was, in fact, the “critical” line for holding the boom and ran from the top of the holding box to the back of the lifting cylinder, was approximately three feet in length, instead of one foot; that the excess length had been placed or “stuffed” under the turret into the opening to the control box below the truck bed and that this situation could not be seen or otherwise discovered by a workman in the position in which plaintiff was before the injury.

The record showed that the proper length for such “critical” line, in order to accomplish its intended purpose, was one foot; that Pitman, the manufacturer, would always install this line of steel or metal tubing, and the three-foot rubber line of rubber tubing was not a proper installation. No warning was given to the plaintiff or to any other employee or official of the Moore Company in regard to the improper installation of the holding line.

Another employee of L. A. Moore Company was assisting the plaintiff in the work on the truck. This person was only employed by Moore for a short period and at the time of the trial his whereabouts were unknown and his testimony was unavailable. He was not further identified.

The plaintiff testified that he told this man to get under the truck at the control box and to shake the lifting cylinder hose so that he, the plaintiff, could identify such hose by the movement of a line at the hold valve. The lifting cylinder hose (and all hoses at the control box leading up through the tower and turret) could be safely removed without any affect upon the hydraulic holding function of the equipment. The fellow employee went below to the control box and a hose on top moved and it was the connection to the hold box of this hose that the plaintiff then removed. The plaintiff was left-handed and in order to disconnect this line, he held his wrench in his left hand and held the hose line in his right hand. In that position, a portion of his right arm was on the side of the turret beneath the boom. At that time, the boom was in a raised position approximately parallel with the truck bed and was unsupported except for the hydraulic pressure in the holding cylinder and line. When plaintiff disconnected the line from the holding box, oil commenced to spurt out into his face, the boom fell upon his right arm on the turret, and he was injured. He did not grab for anything or make any sudden movement with his right arm. He had, in fact, removed the holding or “critical” line and thus released the hydraulic fluid and pressure holding the boom. He bad no realization of this or that the boom would fall until it happened, but had identified the line as the lifting cylinder hose by reason of its movement when the man at the control box beneath the truck was instructed to move that line. The cylinder lifting hose could have been safely removed without the boom falling. The evidence showed that the method of line identification so employed was common practice and custom in the industry when the man on the top side could not identify a line by visual or manual inspection along its whole length, as was the case here, by reason of the improper length and position of the holding line when plaintiff was injured. By reason of the fact that the holding or “critical” line is often connected to different places on the holding valve, when the line to the top moved, he assumed that on this unit the “critical” line was the one connected to the bottom of the holding valve or box, while in fact, it was the one on top which he disconnected.

Under the evidence in this record, as viewed in the light most favorable to the plaintiffs, the court properly submitted to the jury the question of defendant’s negligence. This conclusion is reached upon the authority of Fletcher v. Kemp, 327 S.W.2d 178 (Mo.1959), where the principles governing the duty owed to the plaintiff by the defendant and the necessary showing of a breach of such duty are thus defined, l.c. 185[12, 13]:

«* * * The owner of an article or instrumentality who knows, or by the exercise of ordinary care should know, that it is potentially dangerous and liable to inflict injury, and who undertakes to place it in the hands of a mechanic for repair in the course of which there is a likelihood that the dangerous potential will be released, is under a duty to furnish a proper and reasonably safe article or instrumentality, and is liable to the injured party if he fails to exercise ordinary care to eliminate the dangerous condition before placing it in the hands of the mechanic, or to notify him of the dangerous condition. (Citations omitted). The rule covers not only articles inherently dangerous in their nature, but also articles (as in this case) dangerous because of the use to which they are to be put by whoever may use them for the purpose intended. (Citations omitted). * * *” (Emphasis added)

It is clear here that the hydraulic holding or “critical” line was of improper length in that it was too long and its excess length was placed or “stuffed” under the swivel turret and into the opening in the tower in which position it could not be identified by visual or manual inspection and which position interfered with the lines leading from the control box so that it was likely to move when other harmless lines, such as the lifting line, were shaken at the control box, which warrants the inference that this occurred immediately prior to plaintiff’s injury; that the defendant knew or should have known by the exercise of ordinary care of this condition since it was possessed of specialized knowledge with reference to this type of equipment and employed skilled hydraulic mechanics and repairmen and had performed all of the inspections and shop and field maintenance on this equipment from its reconditioning to the date of the accident; that this condition constituted a danger to mechanics employed to check all hydraulic lines and replace them as needed, and that its Hydra-Lift was not equipped with a fixed boom rest but the boom could only be kept in a raised position so that this work could be done by means of the maintenance of the pressure in the holding valve and critical line; and that the defendant failed to warn the plaintiff or his employer of this dangerous condition. The principles stated in Fletcher are controlling here and the authorities cited by defendant are not persuasive or authoritative to the contrary. The trial court properly submitted plaintiffs’ case to the jury.

The plaintiffs’ Point I presents a claim of error as relating to Instruction No. 6 given by the court below submitting the charges of contributory negligence against the plaintiff Richard W. Gilpin, and is decisive on this appeal. Point I is as follows:

“The Trial Court Erred in Giving Instruction Number 6, Which Required the Jury to Return Verdicts for Defendant If It Believed That Plaintiff Put His Arm Underneath the Boom When Hydraulic Fluid Was Squirting Under Pressure From the Hydraulic Line Which He Had Just Disconnected Because It Hypothesized Pacts Which Were Contrary to the Evidence and Were Not Supported by Competent Substantial Evidence Thereby Allowing and Requiring the Jury to Render a Verdict Based on Speculation and Conjecture.” (Emphasis supplied)

Instruction No. 6, hereinabove set forth in full, does in fact hypothesize the alleged act of contributory negligence as the third of the acts of omission and commission charged against plaintiff, all three of which are submitted therein in the disjunctive.

It is a firmly established rule that where several acts of negligence (or contributory negligence) are submitted in the disjunctive in a verdict directing instruction, each such hypothesis of negligence must be supported by substantial evidence. The rule applicable here as to Instruction No. 6 is thus stated in Saupe v. Kertz, 523 S.W.2d 826, 830[4] (Mo. banc 1975):

“Each element of a disjunctive contributory negligence instruction must be supported by substantial evidence, and the lack of such support on any one renders the submission erroneous. Shaffer v. Kansas City Transit, Inc., 468 S.W.2d 606, 609[1] (Mo.App.1971); Cook v. Cox, 478 S.W.2d 678, 680[2] (Mo.1972). * * *”

In this case, therefore, the defendant had the burden of proving by substantial evidence that the plaintiff committed the affirmative negligent act of putting “his arm underneath the boom when hydraulic fluid was squirting under pressure” from the holding line which he had disconnected as was submitted in the third disjunctive hypothesis of Instruction No. 6. Stated somewhat differently but within the clear and unmistakable meaning of the instruction, the ultimate fact on this element was a finding that the plaintiff moved his arm from a place of safety outside the ambit of the lifting boom to a place under the boom in an attempt to control the squirting holding line and was thus injured.

While it is true that the defendant is not bound, in the consideration of this phase of the case, by plaintiffs’ evidence unless that evidence supports its theory, Peppes v. Huddleston, 533 S.W.2d 701, 703[1, 2] (Mo.App.1976), in the present case there is a total lack of substantial evidence to support a finding that plaintiff committed this specific act of contributory negligence.

“Substantial evidence” has been broadly defined as “evidence which, if true, ‘has probative force upon the issues * and that type of evidence “from which the trier of fact can reasonably decide the case on the fact issues.” Zeigenbein v. Thornsberry, 401 S.W.2d 389, 393[4] (Mo.1966). It is that type of evidence that removes it entirely from the field of conjecture or guess and places it clearly within the area of probative value. Further, a witness’ testimony apparently possessed with probative value on direct examination may be shown upon cross-examination to be mere guess, speculation, impression or conjecture and thus of no probative value to establish a submissible case of negligence. Zeigenbein v. Thornsberry, supra, l.c. 391[3]; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69, 76[9] (Banc 1921); Cragin v. Lobbey, 537 S.W.2d 193, 199[10] (Mo.App.1976).

The only evidence offered by the defendant to support the third disjunctive hypothesis of negligence in Instruction No. 6, was the testimony of Ira Teeter, a machine operator employed by the defendant who had brought the equipment to Moore’s and was waiting in the shop for the repairs to be finished so that he could drive the equipment back into service, when the plaintiff was injured. On direct examination, he stated that just before the accident, he was standing at the back of the truck and that the plaintiff was upon the truck bed at the back of the cab on the passenger side working on the boom. The following then appears in his direct examination:

“Q. All right. Describe, if you will then, what you saw Mr. Gilpin doing.
A. Well, they were, like I say, like it’s been brought out, they were checking and replacing hoses and he broke this hose.
Q. What do you mean he broke it?
A. Well, it (sic) didn’t break it. Apparently it was taken loose with a wrench, which it would have to be. The way I seen it, there was oil shooting and he made a grab for it and when he did, he run his arm in there and down it came and nailed him, and that’s the way it happened. * * *
Were you standing in a position where you had a clear, unobstructed view of what Mr. Gilpin was doing? o*
Yes, I could, standing at the back of the truck I seen what they were doing and I seen him when he got in there.
And you saw the hydraulic fluid squirting out of the hose, is that right? <©
Yes, sir. <j
And it was after that that you say he made a reach for it? ©■
Like he grabbed for it. <!
Grabbed for the hose? d*
Which I guess would be instinct, to try to stop that flow of oil. I don’t know. <i
‡ ⅝ #7?

On cross-examination of witness Teeter, the following appears:

“Q. * * * Now, did you actually see Mr. Gilpin remove the hose?
A. I can’t say I actually seen him remove it, no.
Q. So you weren’t watching him then when he was loosening the connection there with the wrench?
A. I can't recall just standing there specifically watching him. You know, I was watching him remove these and work on these hoses in general.
Q. I assume you weren’t watching or can’t tell us whether or not if while he was loosening he was holding on to that hose with his right hand?
A. No. I don’t know.
Q. Do you know today whether or not when he was taking that hose off he had a hold of this particular hose with his right hand?
A. No, sir. I couldn’t say.”

On recross-examination of witness Teeter, the following appears:

“Q. Mr. Teeter, I don’t quite understand. You’ve told us you don’t know whether or not he had a hold of the hose as he was taking it off and yet you tell us now he made a swipe at the hose?
A. I said I didn’t know whether he had a hold of it with his right hand or not. You asked me that. He’s left-handed normally, isn’t it?
Q. Do you know if he had a hold of the hose with either hand as he was taking it off?
A. I can’t really say that, no.
Q. The only other explanation would be, then, if he did have a hold of it, that he let go of it and then tried to grab it again.
A. He may have done this. I don’t know.
Q. You just don’t know, do you?
A. I know what I seen. I know there was oil shooting and the man grabbed for the hose, made a pass and he was caught in it. You don’t forget something like that. You see a man . caught in something like that, you are not going to forget it.
Q. Do you actually know whether or not when you saw this movement with his arm, whatever that was, whether or not at that time he had a hold of that hose or whether he was grabbing for it?
A. I presumed he was grabbing for it.
Q. You presumed, but you do not know based on your observation, do you?
A. Not exactly, no.” (Emphasis supplied)

The plaintiff, Richard W. Gilpin, related without equivocation or qualification that the accident occurred as follows:

“Q. * * * generally describe how the accident happened. That is, what you did immediately before the boom fell.
A. I had a hold of the hose. Oil hit me in the face when I was taking the hose loose. Oil hit me in the face and I was standing there holding the hose and trying to get away from the oil hitting me in the face so I could see what was happening, and I got caught. The boom fell and I was hung there.
Q. Where was your right arm at the time this fluid started coming out?
A. Laying up on the turret a hold of the hose.
Q. Now when this hose started coming out, did you grab for any tools or anything up in there with your right hand?
A. No.”

While as heretofore noted, this testimony is not binding on defendant with regard to its contributory negligence submission above discussed, it should be noted that the physical evidence — photographs, position of the critical line and whole physical structure of the equipment — clearly shows that if the plaintiff did, in fact, have a hold on the critical line with his right hand when the fluid commenced squirting, his hand and at least a portion of his right arm would be beneath the boom and in the area of real danger if the boom fell. As opposed to this, the defendant’s witness, Teeter, testified on direct examination that he observed the plaintiff “grab” for the' hose after the line was disconnected. Therein lies the real conflict in the evidence. However, as above set forth, Teeter on cross-examination said that he did not know and “couldn’t say” if plaintiff had a hold on the hose with his right hand at that time and “presumed” that he was grabbing for it, but did not know this of his own knowledge.

A witness may qualify his testimony in such a way as to render it of no probative value as was said in Zeigenbein v. Thornsberry, supra, l.c. 391[3]:

“* * * Obviously, what she said on direct examination was shown on cross-examination to be a mere guess on her part and of no probative value, and is not sufficient to make a submissible case of negligence * *

In Cragin v. Lobbey, 537 S.W.2d 193, 199[10] (Mo.App.1976), the court confronted with a similar situation, stated:

“* * * However, if a witness cedes his prior testimony on a given issue was, in fact, predicated on a mere guess, i. e., upon speculation with no factual basis, or if he admits to facts, conditions or circumstances which make it evident the testimony was a mere guess on his part, then his testimony does not constitute substantial evidence and has no probative value. (Citations omitted)” (Emphasis supplied)

It is obvious from the record of Teeter’s testimony that it falls squarely within these rules, did not constitute substantial evidence, or have probative value to establish the third disjunctive hypothesis of defendant’s Instruction No. 6. The giving of this instruction was error calling for reversal of the judgment below.

Such judgment is therefore reversed and the cause remanded for a new trial.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Frances M. CANNON, Plaintiff-Appellant, v. KATZ DRUG COMPANY and Skaggs Drug Centers, Inc., Defendants-Respondents.
    No. KCD 28824.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.
    Application to Transfer Denied March 13, 1979.

      Robert K. Ball, II, Linda L. Parker, Kansas City, for plaintiff-appellant; Jackson & Sherman, Kansas City, of counsel.
    Danny L. Curtis of Niewald, Risjord & Waldeck, P. C., Kansas City, for defendants-respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action for damages for breach of contract to provide group life insurance benefits. Verdict for plaintiff against defendants for $31,466.39. Appeal from judgment for defendants notwithstanding verdict and alternatively awarding them a new trial. The question with respect to the judgment n. o. v. is whether plaintiff’s deceased husband and his beneficiary had vested rights and benefits under a group life insurance policy which could not be terminated without adequate timely notice. The questions with respect to the award of a new trial are whether the court erred in its verdict-directing instructions on plaintiff’s case, and in receipt of evidence of conversations between plaintiff and her decedent and defendants’ employees. Reversed with directions.

Plaintiff’s petition alleged that Delphen K. Cannon was an employee of Katz Drug Company, and subsequently both Katz Drug Company and Skaggs Drug Centers, Inc.; that as their employee he held a certificate of group life insurance No. 13775-2692, Equitable Life Assurance Society of the United States, effective September 15, 1961, issued and delivered to him by Katz and secured through his employment with Katz, with a principal sum of $42,500, reduced to $31,875 at age 65, payable to Frances M. Cannon as beneficiary, which Katz promised would continue after his retirement on pension; that Delphen K. Cannon performed all conditions required of him; that Katz merged with or into Skaggs Drug Centers, Inc.; that prior to and after July 1, 1971, Frances M. Cannon and Delphen K. Cannon received assurances from agents and officials of Katz and Skaggs that the group life policy would remain in full force and effect as to Delphen K. Cannon and that his life insurance benefits under Certificate 13775-2692 would continue after his retirement; that in September, 1971, after Delphen K. Cannon ceased work as an employee, plaintiff and Delphen K. Cannon were informed that the policy (Equitable 13775) which contained the benefits promised Delphen K. Cannon had been cancelled effective July 1, 1971; that plaintiff and Delphen K. Cannon never received a notice of cancellation of said policy before September, 1971; that Delphen K. Cannon died February 10, 1973; that Katz and Skaggs through the authorized acts of its agents and officers, assumed the obligations and duties of the policy (13775) issued by Equitable; that plaintiff and Delphen K. Cannon justifiably relied on the assurances made by the officers and agents of Katz and Skaggs and in the certificate of life insurance, and D. K. Cannon’s right to have said benefits continued after his retirement on pension became vested because he continued his employment based on the promise contained therein; that Frances M. Cannon as beneficiary has never received payment of the sum due, $31,875 (less premiums of $308.61, i. e., $31,466.39).

D. K. Cannon worked for Katz Drug Company from 1925 until his retirement October 6, 1971, at age 65. He died February 10, 1973. Plaintiff was a former employee of Katz where she met D. K. Cannon. They were married in 1933.

In early 1958, Katz management held a meeting where fifteen or sixteen Katz executives, including Mr. Cannon, were given a retirement agreement which included a pension plan of monthly sums to such employees upon retirement. Mr. Cannon’s retirement was under such plan as amended.

In 1961, D. K. Cannon, through his employment, made application for and received Group Life Insurance Certificate 13775-2692, by which Equitable Life Assurance Society certified that:

“Subject to the terms and conditions of Group Life Insurance Policy No. 13775, the life of * * * [D. K. Cannon] * * an Employee of Katz Drug Company * * * is insured for [$42,500] * *.
“The amount of insurance of any Employee who attains the sixty-fifth anniversary of his date of birth or retires on pension, whichever is earlier, shall be reduced to 75% of the amount for which he would otherwise be insured and shall further be reduced to 50% of such original amount upon his attainment of the seventieth anniversary of his date of birth. The employee shall have the same rights and benefits with respect to any portion of his life insurance terminated by reason of his age or retirement as though such portion of his insurance terminated due to termination of employment * *

Certificate 13775-2692 also provided:

“This individual certificate is furnished in accordance with and subject to the terms of the said Group Life Insurance policy, which policy, and the application therefor, constitute the entire contract between the parties. This certificate is merely evidence of insurance provided under said Group Life Insurance policy, which insurance is effective only if the Employee is eligible for insurance and becomes and remains insured in accordance with the provisions, terms and conditions of the said policy.”

Equitable policy 13775 provided:

“The insurance hereunder of any employee shall cease automatically upon the occurrence of any of the following events:
“(1) the termination of this policy.” Frances Marie Cannon, his wife, was designated beneficiary.

Equitable policy 13775 was known as a self-accounting and self-administering policy in that Equitable supplied Katz with materials and training and Katz did all clerical work, including issuance of certificates and deduction of premiums from payroll. Katz made deductions based on amount of insurance from Mr. Cannon’s check to cover his insurance. Between 1961 and 1968, he received three or four job offers which he discussed with plaintiff. He rejected them because they could not duplicate the retirement benefits and insurance he was to receive upon retirement from his job with Katz.

In 1970, plaintiff and D. K. Cannon, as stockholders of Katz, received an announcement of an anticipated merger between Katz and Skaggs. They voted for the merger, as did sufficient stockholders to accomplish the merger in November, 1970, whereby Katz became a wholly owned subsidiary of Skaggs with its obligations assumed by Skaggs.

In April, 1971, plaintiff, in anticipation of her husband’s retirement on October 6, 1971, called Latha Tanner, insurance clerk at Katz/Skaggs, for a record of the amount of insurance Mr. Cannon had, what it would be upon his retirement, and the premiums he would pay. Mrs. Tanner consulted with her supervisor, Mr. McGinnis or Mr. Ariag-no, and responded to plaintiff’s inquiry by written memorandum:

WRITE IT
To D. K. CANNON Subject INSURANCE_Date 4/6/71
Present Am’t of Insurance Reduced 75% at Retirement or age 65 Reduced at age 70 to 50% of Original Am’t
Life Ins. Cost $42,500) $27.80 Cost $31,875 $19.13 Cost $21,250 $12.75
)
AD&D 42,500) -0--0-
Major Medical Cost to remain the same as at present.

Prior to July, 1971, Skaggs negotiated with Equitable for a group life insurance policy to replace 13775; and, effective July 1, 1971, 13775 was replaced by Group Life Insurance Policy No. 3160, a cost-free policy which terminated upon the retirement of employees, except those who retired prior to July 1,1971. Four such employees, Donald Elder, Leo Plumberg, Albert Diamond, and Dean Widney, retired prior to July 1, 1971, and their life insurance benefits were continued after retirement under Group Life Insurance Policy No. 13775. Their retirement plan and insurance coverage was the same as Mr. Cannon's. Defendants admitted that all former employees who participated in group policy 13775 and who retired while it was in force but before June 30, 1971, who were still living, were covered by policy 13775.

Prior to June 28, 1971, Katz/Skaggs conducted a campaign, the purpose of which was to notify Katz employees of their benefits under the merger and the change in the life insurance policy. June 28, 1971, was designated SU (for sign up) Day, and packets of information were distributed through the stores and in the office. The materials advised that unless employees affirmatively elected to be excluded, they were automatically included under the new policy (3160) as of July 1, 1971. “Sign Up” was also advertised by store posters, recordings played in stores, and “teaser strips” in pay envelopes. Mr. Cannon did not elect to be excluded from 3160 and, on his retirement October 6, 1971, any coverage he had under 3160 terminated by its provisions.

Plaintiff never saw a “teaser strip,” and denied receipt of any notice respecting her husband’s insurance benefits. No certificate of the new policy was sent to Mr. Cannon. There was no conclusive evidence that Mr. Cannon received notice of any change in or cancellation of his insurance.

From time to time during her husband’s employment, plaintiff called Vincent Davies in personnel records at Katz regarding errors in deductions from Mr. Cannon’s pay checks. He would advise how corrections would be made, and such corrections followed. She called Mr. Davies on July 8, or 9,1971, because Mr. Cannon’s check of July 8, 1971, showed no deduction for group life insurance. Mr. Davies replied, “You and Mr. Cannon don’t have a thing to worry about. * * * Skaggs Drug Company was paying all premiums for all the employees * * *. Mr. Cannon’s insurance was froze, policy 13775.”

On August 31, 1971, a Mr. Carlson from Equitable visited Mr. and Mrs. Cannon about insurance, at which time Mr. Cannon showed his certificate under policy 13775 to Mr. Carlson. Mr. Carlson seemed surprised because he had no knowledge of such insurance, and left to call within a few days. When Mr. Carlson did not call, Mr. Cannon called him and, on September 7, 1971, he told Mr. Cannon that 13775 had been can-celled as of June 30,1971. Mr. Cannon was shocked in disbelief, stating, “there must be a terrible mistake.” Mr. Cannon then called Robert Ariagno in the personnel department at Katz and confronted him about the cancellation of his life insurance. Mr. Ariagno replied, “Yes, Dub, I knew it but didn’t have the heart to call you,” to which Mr. Cannon responded, “You didn’t have the heart to call me after you just assured me not too long ago that my policy was froze, I had nothing to worry about.”

On September 8, 1971, Mr. Cannon made an appointment to see Earl Katz, Chairman of the Board of Katz immediately after the merger. Mr. and Mrs. Cannon took his copy of the retirement agreement, his group life insurance certificate (13775-2692), and the “Write It” memorandum of April 6, 1971, to their meeting with Mr. Katz September 13,1971. From September 13 to October 11, 1971, Mr. Cannon had two telephone conversations each with Mr. Katz and Morris Shlensky, also an officer of Katz, regarding insurance, in which he was told he had nothing to worry about regarding insurance and that everything would be taken care of. Mr. Shlensky said, “Dub, as you know, Earl left word with me to take over with Mr. Gutki in regards to a letter that was directed to him by Mr. Sigler to be signed and sent back to the company to have Mr. Cannon reinstated in the group life insurance. * * * Mr. Gutki has not signed a letter.” Mr. Cannon asked “Why?” and Mr. Shlensky said, “I don’t know but you don’t have a thing to worry about, I am going to take this up personally with Sam Skaggs. * * * I do want you to go on. Earl told me about your trip [to Europe], that your daughter got you your pass. You plan on that trip, because I know you will be taken care of.”

Mrs. Cannon talked with Dr. Gutki, president of Katz/Skaggs, on October 7, 1971, about signing a letter from Mr. Sigler at Equitable to have Mr. Cannon reinstated on the insurance. Dr. Gutki told her he had refused to sign such letter, that the matter was in the hands of Sam Skaggs’s lawyers, and refused to discuss the matter further.

Such letter had been written by Mr. Si-gler to Dr. Gutki after Equitable determined that certain titles (executive positions) could be accommodated for continuance of insurance. Equitable needed the authority of Katz/Skaggs sought by the letter to do so. Such authority was never given Equitable.

On September 7,1971, Equitable, through a letter by Mr. Carlson, advised Mr. Cannon of a privilege of conversion of his life insurance under policy 3160. The offer was rejected because his retirement income was too small to cover it.

In November, 1971, Mr. Cannon wrote Mr. Sigler at Equitable regarding policy 13775 and his benefits thereunder. He was advised that 13775 had been cancelled by replacing policy 3160. All such correspondence was forwarded to Katz/Skaggs and a note was made for the file that they had not “heard the end of the matter.” All records of the transaction were lost.

Mr. Cannon’s retirement checks came from Katz until May 1, 1972, when they began coming from Skaggs and continued to come from Skaggs until his death while retired on pension February 10, 1973.

Appellant, to charge error in entry of the judgment for defendants notwithstanding plaintiff’s verdict, contends: Plaintiff pleaded and proved issuance by defendants of Group Policy 13775 with its benefits made available to D. K. Cannon; a promise by defendants to continue his group life insurance benefits after his retirement on pension; that he continued in employment until retirement in reliance on such promise; breách of such promise by cancellation of policy 13775 without effective precancel-lation notice to D. K. Cannon, thereby preventing him from exercising his vested right of early retirement in advance of the cancellation date so that the benefits which would in such case be due him under policy 13775 would continue after his retirement on pension.

Respondents, in support of their judgment notwithstanding, assert there was no promise by defendants to continue insurance on the life of D. K. Cannon; there were no contract rights vested in him, and he was not insured at his death.

The evidence shows that D. K. Cannon had a contributory group life insurance policy; regular deductions were made from his salary checks to pay its premiums. In such circumstances, Mr. Cannon was not a third-party donee beneficiary; he was a party to the insurance contract, “endowed with a vested interest.” Butler v. Equitable Life Assur. Soc., 233 Mo.App. 94, 93 S.W.2d 1019, 1024[6] (1936); Morris v. Travelers Ins. Co., 546 S.W.2d 477 (Mo.App. 1977). When such a contract exists and there are provisions of benefit to the em ployee exercisable at termination of the policy, he is entitled to notice of termination so that his interests may be protected. Butler v. Equitable Life Assur. Soc., supra, 93 S.W.2d l.c. 1025[7]; Nick v. Travelers Ins. Co., 354 Mo. 376, 189 S.W.2d 532 (1945). Entitlement to notice is particularly significant in this case because Katz/Skaggs was the agent for the issuing insurance company in servicing the policy. Morris v. Travelers Ins. Co., supra.

In April, 1971, in contemplation of retirement in October, 1971, a request was made of Katz/Skaggs on behalf of the insured for a statement of life insurance to be in force upon retirement and the premiums therefor. The “Write It” memorandum was issued to D. K. Cannon in response to such request. In its context, it represented that life insurance would be in existence upon his retirement. If D. K. Cannon had been advised of the proposed cancellation he could have exercised his right of early retirement and, at the loss of the difference between some three months’ salary and his retirement, preserved over $31,000 life insurance, as at least four fellow employees did. The “Write It” memorandum constituted an offer for a unilateral contract which D. K. Cannon accepted by continuing in his employment rather than taking early retirement. Hinkeldey v. Cities Service Oil Co., 470 S.W.2d 494, 500-501 (Mo.1971). See also Coffman Industries, Inc. v. Gorman-Taber Co., 521 S.W.2d 763, 768-769 (Mo.App.1975).

Whether notice of cancellation was given is an issue of fact, Butler v. Equitable Life Assur. Soc., supra, 93 S.W.2d l.c. 1025[8]; and such question was resolved by the jury against the defendants.

Respondents rely primarily on the discussions of group insurance contracts in Longley v. Prudential Ins. Co. of America, 161 S.W.2d 27 (Mo.App.1942); Satz v. Prudential Ins. Co. of America, 225 S.W.2d 480 (Mo.App.1949); Carter v. General American Life Ins. Co., 452 S.W.2d 253 (Mo.App.1970); Straub v. Crown Life Ins. Co., 496 S.W.2d 42 (Mo.App.1973); Lowes v. Pan-American Life Ins. Co., 355 F.2d 433 (8th Cir. 1966); Adair v. General American Life Ins. Co., 124 S.W.2d 657 (Mo.App.1939), all of which are adequately distinguished for purposes of this case by Butler v. Equitable Life Assur. Soc., supra, and Morris v. Travelers Ins. Co., supra.

Respondents also would deny this action to plaintiff in her own capacity under Section 537.010 RSMo which provides for the survival of tort actions against property to the personal representative of the decedent.

Section 507.010 RSMo provides that every action shall be prosecuted in the name of the real party in interest. Mrs. Cannon was the beneficiary of her husband’s life insurance; his personal representative would have no interest in such benefits. Accordingly, she is the party in interest to sue for her benefits. Wilson Co. v. Hartford Fire Ins. Co., 300 Mo. 1, 254 S.W. 266 (1923).

Plaintiff’s action was submitted by Instructions 3 and 4:

“INSTRUCTION NO. 3
“Your verdict must be for plaintiff and against defendant Katz Drug Company if you believe:
“First, defendant Katz issued or caused to be delivered a certificate of group life insurance under Policy No. 13775 to D. K. Cannon, which promised the benefits described would continue after his retirement on pension, and
“Second, defendant Katz, by and through its agents and servants, made oral promises to D. K. Cannon that his life insurance benefits would continue on after his retirement on pension, and
“Third, plaintiff was the beneficiary of the promise made by defendant, and
“Fourth, D. K. Cannon relied upon the promises made in continuing his employment, and
“Fifth, defendant knew or should have known that D. K. Cannon would rely upon said promises, and
“Sixth, defendant cancelled the policy by which D. K. Cannon’s life insurance benefits were to continue after his retirement on pension, and
“Seventh, defendant failed to give D. K. Cannon notice before said cancellation in time for him to assure continuance of his coverage under group policy No. 13775, and
“Eighth, D. K. Cannon retired on pension, and
“Ninth, defendant did not continue the promised benefits described in the certificate of life insurance after D. K. Cannon retired on pension, and
“Tenth, because of such failure, defendant’s contract obligations were not substantially performed, and
“Eleventh, plaintiff was thereby damaged.
“(M.A.I. 26.02, 31.08, and not in M.A. I.)”
“INSTRUCTION NO. 4
“Your verdict must be for plaintiff and against defendants Katz Drug Company and Skaggs Drug Centers, Inc., if you believe:
“First, defendant Katz issued or caused to be delivered a certificate of group life insurance under Policy No. 13775 to D. K. Cannon which promised the benefits described would continue after his retirement on pension, and
“Second, defendants Katz or Skaggs, by and through their agents and servants, made oral promises to D. K. Cannon that his life insurance benefits would continue on after his retirement on pension, and
“Third, plaintiff was the beneficiary of the promise made by defendants, and
“Fourth, D. K. Cannon relied upon the promise made in continuing his employment, and
“Fifth, defendants knew or should have known that D. K. Cannon would rely upon said promise, and
“Sixth, defendant Skaggs Drug Centers, Inc., assumed the obligations of defendant Katz Drug Company to D. K. Cannon, and
“Seventh, defendants cancelled the policy by which D. K. Cannon’s life insurance benefits were to continue after his ( retirement on pension, and
“Eighth, defendants failed to give D. K. Cannon notice before said cancellation in time for him to insure continuance of his coverage under the group policy No. 13775, and
“Ninth, D. K. Cannon retired on pension, and
“Tenth, defendants did not continue the promised benefits described in the certificate of life insurance after D. K. Cannon retired on pension, and
“Eleventh, because of such failures, defendants’ contract obligations were not substantially performed, and
“Twelfth, plaintiff was thereby damaged.
“(MAI 26.02, 31.08, and not in M.A.I.)”

Appellant charges the court erred in granting defendants a new trial on the foregoing instructions, and asserts that they were proper statements of plaintiff’s theory and in conformity with M.A.I.

Respondents argue in support of the trial court’s action that the instructions are misleading and confusing, in that paragraph First requires a finding that the certificate contained a promise of benefits after retirement on pension, and are multiple directions against defendant Katz. Some emphasis is also placed on discrepancies in punctuation and the singular and plural promise.

As recognized, there are no Missouri Approved Instructions covering this case. Accordingly, under Rule 70.01, the instructions needed only to cover the case as pleaded and proved in the form of Missouri Approved Instructions. The pleadings and evidence have been considered sufficient in presentation of a theory of recovery. The case is out of the ordinary and perhaps confusing in that respect. Nevertheless, the instructions track that theory.

Both instructions did direct a verdict against Katz. Such was not undue emphasis, however, because, under the pleading and evidence, Katz alone could have been liable to plaintiff or Katz jointly with Skaggs could have been liable.

As stated, Jackson v. Cherokee Drug Co., 434 S.W.2d 257, 263 (Mo.App.1968), “absolute perfection in form is not the test. The test is whether the instruction is substantially correct.” This not-in-MAI instruction meets that test and the test of understanding by a jury of laymen possessing common sense in Wims v. Bi-State Development Agency, 484 S.W.2d 323 (Mo. banc 1972).

Appellant charges the court erred in granting defendants a new trial for receipt of testimony from plaintiff concerning conversations between plaintiff and her husband, and Vincent Davies, Robert Ariagno, Earl Katz, and Morris Shlensky. She asserts that all such testimony was properly received on the issue of reliance.

There is some doubt whether defendants made timely objections necessary to preservation of error. In any event, the record shows that Davies, Ariagno, Katz, and Shlensky were employers or officers of Katz/Skaggs in positions to speak to the Cannons’ insurance problem. Cf. Kind v. Staton, 409 S.W.2d 253 (Mo.App.1966), where a “lady in the union office” was not sufficiently identified to make hearsay from her admissible. The statements on that subject attributed to the Katz/Skaggs officers by Mrs. Cannon were admissible, not to prove the truthfulness of such statements, but to prove the state of mind of Mr. and Mrs. Cannon as it relates to whether they relied on the fact of insurance and took no further action. Indeed, the statement attributed to Mr. Davies, when received, was limited to that effect by instruction to the jury. The same is true of the statement attributed by plaintiff to her husband. See discussions in Trask v. Davis, 297 S.W.2d 792, 799 (Mo.App.1957); Green v. American Life & Accident Ins. Co., 93 S.W.2d 1119, 1124 (Mo.App.1936).

Judgment for defendants notwithstanding verdict for plaintiff reversed; cause remanded with direction to reinstate verdict for plaintiff and enter judgment thereon for plaintiff.

All concur.