author: WASSERSTROM, Judge.

text:
    William S. WOODS, Sr. and Shirley A. Woods, Plaintiffs-Appellants, v. EVANS PRODUCTS COMPANY, Plymouth Mortgage Service Co., and First National Bank of Minneapolis, Defendants-Respondents.
    No. KCD29457.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      M. Sperry Hickman, Independence, for plaintiffs-appellants.
    Ross Eshelman, Clinton, for defendants-respondents.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Mr. and Mrs. Woods sue in this action to recover a portion of the money paid by them in connection with their purchase of a prefabricated home from Evans Products Company. Count I seeks recovery of an alleged unauthorized increase by Evans in the sale price which the Woods inadvertently paid. Count II seeks to recover the amount of what the Woods contend to be usurious interest. After hearing the Woods’ evidence without a jury, the trial court dismissed Count II; and after hearing all the evidence, it gave judgment for the Woods on Count I. The Woods now appeal as to the dismissal of Count II.

On August 21, 1971, the Woods entered into negotiations with Evans for the purchase of a prefabricated home. Evans’ agent Kiely at that time furnished them with a brochure showing various types of homes and the types of equipment available. Among other items of information set forth was a plan of financing. This information stated in part as follows:

“For a small down payment you can get THE CAPP-HOME PURCHASE PLAN — arranged with a leading National Bank. Only Capp-Homes has a plan like this! This plan offers you security while making it easy for you to own your Capp-Home. Here’s what you get:
Financing up to 12 years for your complete Capp-Home. (See specifications on pages 42 and 43) The plan requires only a small down payment. You pay the balance in minimum amounts each month, like rent. Special arrangements can be made for those who must pay quarterly, semi-annually or annually. (See Price List) 1.
“2. Simple interest rates, the same as at a National Bank. The interest applies on the monthly balance only during the actual use of borrowed funds. You can refinance at any time at your local bank, for instance, without penalty charge. Caution : Some companies charge interest in • advance, costing you 3 times as much. We don’t.” (Emphasis in the brochure)

During the conversation between the Woods and Kiely, the contents of the brochure were discussed, including the above quoted representations with respect to financing. The Woods picked out one of the homes described in the brochure, and a purchase order was signed by both parties. The pertinent parts of that document were as follows:

“Price of Home Described Above $9130
Wiring Package 415
Heating Package 590
Kitchen Cabinets 690
Plumbing Package 795
Total Sale Price 11620 Down Payment in Cash 100
Unpaid Balance of Price 11520
Sales Tax 164
Unpaid Principal Balance 11684
Time price differential 7711
Time Balance Owed 19395
Time Sale Price 19495
Time Balance Owed Payable in 144 monthly installments of $135.00 each.”

Following the original purchase order, some revisions and deviations from the original package were ordered by the Woods and agreed to by Evans. Evans then prepared a revised purchase order dated September 29,1971, which, however, was never signed by the Woods and which plaintiff William Woods testified was never shown to them prior to the date of trial. The revision increased the basic price of the home from $9130, the amount shown in the August purchase order, to a higher figure of $9365. This difference of $235 was the subject matter of Count I in the Woods’ petition. The trial court gave judgment to them for that item, and it no longer constitutes a matter in dispute.

Sometime in October, Evans mailed to the Woods a note in the sum of $20,199, payable in 144 monthly installments of $141, without interest. The note provided: “The makers shall have the right to prepay the balance due under this Note at any time prior to maturity or due date, without penalty.” The note was accompanied by a mortgage, with Evans as mortgagee, covering the real estate upon which the prefabricated home was to be erected. The Woods also received a Disclosure Statement as required by 15 U.S.C.A. Secs. 1638 and 1605. See Copley v. Rona Enterprises, Inc., 423 F.Supp. 979, 983 n. 5 (D.C.Ohio 1976). The Disclosure Statement sets forth the figures on the transaction as contained in the revised purchase order of September 29,1971, and in addition, contains the required computation of “Annual Percentage Rate” at 9V4%. These documents were executed by the Woods and delivered to Evans at the time the merchandise making up the prefabricated home was delivered to the Woods. Thereafter, Evans assigned the note and mortgage to Plymouth Mortgage Service Company and First National Bank of Minneapolis.

In July, 1975, the Woods sold the home in question and wrote to obtain the figure required to pay off the note and deed of trust. The Woods up to that time had made 46 installment payments, and they paid in 1975 a final payment in the amount of $10,131, upon which the mortgage was finally released and the note paid in full.

The Woods make the following points on this appeal: (1) that the court erred in striking out certain evidence; and (1) that the court erred in sustaining the motion for judgment on Count II for the reason that the transaction was an usurious loan, not a purchase money contract “because there was security for the loan on other than the property sold and the bargain reached between the seller and buyer was for a cash price plus simple interest rates on the balance only.”

I.

The evidence which the Woods contend was erroneously stricken came in as part of the cross-examination of plaintiff William Woods. He testified that during the course of his conversation with Kiely on August 21,1971, and in connection with the discussion of financing, an interest figure of 7½% was discussed. Defendants requested that all testimony with respect to the 7½% figure be stricken on the ground that such evidence conflicted with the parole evidence rule. The trial court sustained that request. It is this ruling which the Woods challenge as their Point I.

It is unnecessary to rule whether the parole evidence rule bars the testimony in question. It can be assumed that the evidence is not barred by that rule. Even so, the evidence in question was immaterial and its striking was harmless.

It is to be noted that the Woods have at no time claimed that Evans breached any agreement to arrange financing at 7½% simple interest. The only claim of breach of contract is contained in Count I of the petition which related to an entirely different matter. The evidence with respect to the 7½% interest was offered only for the purpose of Count II, which was confined solely to the issue of usury.

On that issue of usury, the only question was whether the transaction between the Woods and Evans was a sale of property or a loan of money. As stated in the Woods’ brief in this court, this testimony is claimed to be material as tending to establish “that the transaction was an usurious loan of money rather than a time-price differential as argued in Point II hereof.”

That the Woods and Kiely did discuss financing and interest in connection therewith was given in evidence without objection and is not disputed. In Section II of this opinion, it will be shown that said discussion was without significance. However, even if the discussion were pertinent, the fact of the discussion was clearly established without the necessity of reference to any given interest percentage figure. What that exact figure may have been or whether any particular interest figure at all was discussed, is not in any way important. As already stated, the Woods did not seek to recover on any theory of breach of contract to obtain financing at any given figure. Rather their petition is confined to a claim that the amount actually paid by them exceeded the statutory rate of 8%, and the petition prays as damages only the difference of the statutory rate of 8% and the actual interest factor of 9¼%. The exact rate of interest discussed between the parties is therefore immaterial, and its exclusion cannot constitute prejudicial error.

II.

With respect to its major contention that the transaction was usurious, the Woods concede the rule to be that a seller may set a time sale price higher than a cash price and that the difference between those two prices is not subject to the usury statute. The Woods nevertheless argue that this case falls within an exception to that rule. Their exclusive reliance for that contention is Lucas v. Beco Homes, Inc., 494 S.W.2d 417 (Mo.App.1973). An understanding of the ruling in Lucas requires a brief preliminary review of the earlier cases on this subject.

The well established traditional view has been that usury applies only to a loan of money and has no application to the sale of goods; that therefore a seller can establish a higher price for sale on time than for cash without raising any question of usury; and that such a sale stands separate and apart from any financing arrangement subsequently effected, such as the acquisition at a discount by a financial institution of the buyer’s purchase note. Missouri has long followed this rule, the leading cases being the decisions by this court in General Motors Acceptance Corporation v. Weinrich, 218 Mo.App. 68, 262 S.W. 425 (1924) and Wyatt v. Commercial Credit Corporation, 341 S.W.2d 348 (Mo.App.1960).

Weinrich involved the sale of a new automobile by the dealer Reuter to Windsor. The cash price was $1,450 and a “time-selling price” was fixed at $1,501. Windsor bought at the time price and executed a note in payment. Reuter than sold Windsor’s note to General Motors Acceptance Corp. at a “G.M.A.C. differential” of $51. G.M.A.C. was in the business of a banking institution specializing in automobile paper, and had furnished to automobile dealers generally blank forms of mortgages, notes and similar literature along with a uniform schedule of rates. Although G.M.A.C. did not instruct Reuter what interest to charge, it did furnish him with a rate card showing the amount of charges on terms, and the charges for various sums of money for various lengths of time. The amount computed according to the rate card for the amount of money and the length of time of the Windsor transaction came to $51.00. Windsor defaulted in payment on the note, and G.M.A.C. sued to replevin the automobile which had been given as security. Windsor defended on the ground that the note was usurious and the mortgage therefore void.

This court ruled that Windsor had failed to carry his burden of proving usury, holding that in order to constitute usury there must be a loan and further that “if there is a real and bona fide purchase, not made as the occasion or pretext for a loan, the transaction will not be usurious even though the sale be for an exorbitant price * * * And if the sale be a real and not a pretended transaction, it will not make any difference even though the seller have a cash price and a larger price where the sale is on time or credit.” The court went on as follows (l.c. 262 S.W. 429):

“The mere fact that prior to the transaction plaintiff furnished Reuter with blank forms of chattel mortgages and notes, together with the rates of discount it would pay, and also forms of statements relative to the sale and solvency of the purchaser and directions how to proceed, certainly does not conclusively show that the transaction was a scheme to enable plaintiff to effect an usurious loan to defendant by having the note and mortgage made to Reuter and then indorsed over to plaintiff by him. Plaintiff has no interest in the sale of automobiles. The furnishing of the above-mentioned blanks, rates, and information could very properly be done merely to facilitate the submission of notes to plaintiff, together with the required information relative to the desirability of the same, and thereby expedite the purchase by plaintiff of automobile paper taken by Reuter whenever he made a sale. The further fact that Reuter knew the discount he would have to allow in order to sell the paper to plaintiff, and his addition of only that much to his cash price of the automobile, would not necessarily make the transaction a loan from plaintiff to defendant. Desiring to make the sale and knowing that he could sell the note to plaintiff and the discount he would have to make, he could rightfully make the addition of that amount to the cash price of the automobile, the total being his time-selling price. This would not be usury on his part, since the transaction was a real sale.”

In Wyatt, Wyatt purchased store fixtures from Reinhart-Welch. Wyatt originally signed a purchase order at a price of $24,-422.56, with the intention of paying the seller in cash with money which Wyatt intended to borrow from his bank. Running into difficulty getting a bank loan, Wyatt discussed financing with Reinhart-Welch and the possibility came up of using Commercial Credit Corporation. Reinhart-Welch had done business with Commercial Credit for years and had in its office a chart made up by all the financing companies, including Commercial Credit Corporation, showing the series of percentage rates and the amount to be added to the cash price to result in a certain percentage. Reinhart-Welch took a statement from Wyatt, showed this to Commercial Credit, and got a commitment from the latter to purchase the contemplated Wyatt note. Reinhart-Welch then prepared a chattel mortgage on a form furnished by Commercial Credit, showing a cash price of $24,422.56 and a time price of $27,754.82. After making a series of payments, Wyatt received advice that he was being overcharged, and the dispute began which led to litigation.

This court in Wyatt affirmed a judgment in favor of Commercial Credit upholding the note and chattel mortgage as executed. This court repeated what it had previously held in Weinrich to the effect that the usury laws do not apply to a bona fide sale of goods and that in order to be so subjected, the transaction must be found to have been in reality a loan. This court further held in Wyatt that the transaction there in suit was not “a ruse or device concocted to circumvent the usury statute by garbing a loan in the cloak of a sale.” In reaching that result, this court held as follows:

“Commercial Credit Corporation was not in the business of selling fixtures. It was in the business of buying negotiable paper at discount rates. The fact that it furnished sellers of negotiable paper, including Reinhart-Welch, with blank forms of chattel mortgages or notes, together with the rates of discount it would pay in and of itself is not persuasive that the transaction was a mere scheme to enable defendants to effect a usurious loan to plaintiffs by having the paper made to Reinhart-Welch and then endorsed over to Commercial Credit Corporation. The furnishing by Commercial Credit Corporation of the mentioned forms, rates and information, and its request for data about plaintiffs’ credit position could very properly be done to facilitate the submission of notes to it with data relative to the soundness of same, and thereby expedite proper consideration and purchase by Commercial Credit Corporation of negotiable paper taken by Reinhart-Welch whenever it made a sale. Cf. General Motors Acceptance Corp. v. Weinrich, supra.
“The fact that plaintiffs were offered goods at a cash price which they declined and at a higher time price which they accepted and that the difference between the two prices resulted in a percentage figure in excess of 6% is immaterial in view of the established law that there may be a cash price for property and a higher price for it where payments therefor are to be made in installments.
“Plaintiffs would have us decide this case contrary to such decisions as General Motors Acceptance Corp. v. Weinrich, supra; General Contracting Purchase Corp. v. Propst, supra, [Mo.App., 239 S.W.2d 563]; Personal Finance Co. v. Endicott, supra, [Mo.App., 238 S.W.2d 51], and Holland-O’Neal Milling Co. v. Rawlings, supra, [217 Mo.App. 466, 268 S.W.2d 683], by adopting what they term to be the ‘modern view’ which would result in the facts before us being treated as within the usury statute. As examples of application of the ‘modern view’ they cite such cases as Jackson v. Commercial Credit Corp., 90 Ga.App. 352, 83 S.E.2d 76; Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W.2d 802, and Seebold v. Eust-ermann, 216 Minn. 566, 13 N.W.2d 739, 152 A.L.R. 585. An interesting statement of some of the various considerations involved in the so-called ‘modern view’ and ‘traditional view’ is contained in a comment in 24 Mo.L.Rev., pp. 225-40. Respondents assert our legislature recently in Senate Bills Nos. 97 and 98, 70th General Assembly, considered and failed to pass time sales regulatory legislation and that the courts should not disturb the existing law by a decision legislative in nature. It is our view that we have correctly ruled the instant case under the existing statute; that in so doing we have followed all of the previous Missouri Appellate Court decisions on the subject; and that if a change such as appellants contend for is to be made it should properly come from the legislature.”

See in general accord: General Contract Purchase Corp. v. Propst, 239 S.W.2d 563 (Mo.App.1951); Holland-O’Neal Milling Co. v. Rawlings, 217 Mo.App. 466, 268 S.W. 683 (1925); Huber Mfg. Co. v. Ellis, 199 Mo.App. 96, 201 S.W. 931 (1918); Personal Finance Co. of St. Louis v. Endicott, 238 S.W.2d 51 (Mo.App.1951). See also Webster v. Sterling Finance Co., 355 Mo. 193, 195 S.W.2d 509, l.c. 514 (1946) citing and quoting Weinrich with approval. Cf. White v. Anderson, 164 Mo.App. 132, 147 S.W. 1122 (1912).

Lucas v. Beco Homes, Inc., supra, the single authority upon which the Woods rely, does not purport to overrule any of the foregoing cases. Rather, that case emphasized the recognition in the previous cases that a transaction can be a usurious loan even though camouflaged and disguised in an effort to avoid the usury statutes. Applying that concept, Lucas held the transaction there involved to be an usurious loan. That result, however, was premised upon the peculiar facts in the Lucas case.

In that case, Mr. and Mrs. Lucas agreed to buy a surplus home being offered for sale by Beco Homes, Inc. A total purchase price was agreed upon of $3,214.80 which included $1,000 in the nature of a construction loan to help the Lucases in the assembly of the dismantled building when it was delivered. A cash payment was made of $14.80. Then Mr. and Mrs. Lucas, together with Mr. and Mrs. Watkins who owned the real estate upon which the home was to be erected, executed a note to Beco Homes of $5,411.17, and a quit claim deed to the Watkins’ real estate was delivered as security for the note.

Beco Homes had an arrangement with Delta Loan & Finance Company “to do the financing on the sale of these homes” and it had been agreed that when the homes were sold, and if they were sold on credit, the paper would first be offered to Delta. The Lucas and Watkins note was so offered to Delta by Beco and was accepted by Delta. Delta made up a sheet of computations which showed a “time differential” of $1,251.44 and a “dealer reserve” of $901.07. The $1,251.44 figure represented advance computation of interest at 5% for seven years on the invoice price. The dealer reserve was an amount to be held by Delta for Beco until the total indebtedness was satisfied. Delta made distribution to Beco of the $1,000 sum contemplated as a construction loan to Lucas, but Beco never gave plaintiffs the $1,000 and the building was never assembled.

The trial court held that the note signed by the Lucases was usurious and gave them judgment accordingly for the amount paid by them in excess of the statutory maximum interest. On appeal, the judgment was affirmed. The court of appeals pointed out its limited role in reviewing a court tried case and found that the judgment of the trial court was not clearly erroneous. In reaching that conclusion, the court of appeals emphasized the finding of fact and conclusion of law by the trial court that “[cjontrary to the contention of Delta Loan & Finance Company the sale of the building to Lucas was not a ‘time differential price.’ ”

That ultimate determination rested upon the following principal factors: (1) a whole interlocking relationship existed between Delta and Beco; (2) the different cash price and time price were not shown and made known to the buyer; and (3) Beco and Delta took security on property other than that sold by Beco.

The situation in Lucas is so factually different as to make that case inapplicable here. First and foremost, Lucas had a situation where an on-going interlocking relationship existed between Delta and Beco, thereby tying Delta to the original “purchase” transaction. Here, by way of contrast, there is no showing of any continuing relationship between Evans Products Co. on the one hand and Plymouth Mortgage Service Co. and First National Bank of Minneapolis on the other hand. The only meager evidence in this respect is the statement in the Evans’ brochure to the effect that it had a purchase plan “arranged with a leading National Bank.” That brochure did not name defendant First National Bank of Minneapolis as being the bank referred to, and there is no mention at all of any mortgage service company. The record in this case is void of any detail as to just what Evans had arranged with any national bank, and certainly there is nothing with respect to any arrangement which it had with First National Bank of Minneapolis. More particularly, there is no showing here that the financing institutions had any dealer reserve hold back from Evans, such as was present and emphasized in the Lucas case. Nor was there in this case any showing as to the manner of computation of the 9¼% interest factor shown in the disclosure statement furnished to plaintiffs. If that 9¼% represented an add-on such as the court emphasized in Lucas, such fact was never shown by plaintiffs. Furthermore, the 9¼% annual financing cost was fully disclosed here by means of the disclosure statement, which stands in contrast to the camouflaged way in which statutory interest was exceeded in Lucas.

Next, in contrast to the failure in Lucas to expressly make known a cash price and a different time price, those two options were plainly made known to and understood by the Woods. That fact is demonstrated by the following testimony on cross-examination of Mr. Woods: “Q. (By Mr. Eshel-man) Mr. Woods, when you purchased this home or signed the purchase order with Mr. Kiely, you understood you could pay cash for the home if you wanted to? A. Absolutely.” This fact is further demonstrated by the purchase order signed by plaintiffs which did give a cash price and a separate higher time sale price.

Finally, with respect to the matter of security, it is to be noted that the real estate security demanded and received in Lucas was upon real estate owned by a party (Watkins) other than the purchasers. Furthermore, the seller in Lucas engaged in the very shady practice, to say the least, of charging for a construction loan which it never made and thereby made it difficult if not impossible for the purchasers to ever erect the dismantled home. By way of contrast in the present case, the real estate on which a mortgage was given was owned by the purchasers (the Woods) and it was upon that land that the home purchased from Evans was in fact erected without incident. Surely Evans’ taking of a mortgage on this real estate on which the prefabricated home almost immediately became a part, should not and cannot be considered a badge of fraud so as to convert a perfectly legitimate sale with legitimate security into something else.

In an effort to transform the transaction here from a sale to one for a loan of money, the Woods’ brief speaks repeatedly of and makes heavy reliance upon the Evans’ brochure in which reference is made to a purchase plan upon “simple interest rates” which would apply “on the monthly balance only during the actual use of the borrowed funds.” They seem to believe that if a deferred time purchase price has been calculated in accordance with a rate of interest, then that converts the entire transaction into one for a loan of money which therefore comes within the scope of the usury laws. There are many cases holding exactly to the contrary. 45 Am.Jur.2d Interest and Usury Sec. 123, p. 107; Howell v. Midstate Homes Inc., 13 Ariz.App. 371, 476 P.2d 892 (1970); Petersen v. Philco Finance Corporation, 91 Idaho 641, 428 P.2d 961 (1967); Steffenauer v. Mytelka & Rose, Inc., 87 N.J.Super. 506, 210 A.2d 88 (1965); Davidson v. Davis, 59 Fla. 476, 52 So. 139 (1910); Irvin v. Mathews, 75 Ga. 739 (1885); Melnicoff v. Huber Investment Co., 12 Pa. D&C 405 (1929); First Nat. Bank v. Mann, 94 Tenn. 17, 27 S.W. 1015 (1894). The rationale of these cases is well stated in the Tennessee decision last cited:

“The argument is that the 8 per cent agreed to be given is a part of the consideration to be given, and is but a mode of expressing the difference between the cash and credit price of the goods sold, and that it is not usurious to charge more than legal interest when credit is given, and this difference in credit and cash price may as well be put in the shape of a per cent for the time credit is extended as in the shape of a round sum for such time or credit. In other words, a party may be willing to take for a horse $100 in cash, but would not be willing to sell the same horse on 12 months’ credit for less than $120, and such sale at $120 would be legal, and not in any respect usurious; and it is now insisted it cannot matter whether the additional amount of $20 charged for this credit is stated as a round sum or as a per cent upon the $100 for the 12 months’ credit granted. This contention is well supported by authorities in our own state and elsewhere [citing cases].”

This court adopted the same reasoning in the Weinrich case, supra, when it held: “The further fact that Reuter knew the discount he would have to allow in order to sell the paper to plaintiff, and his addition of only that much to his cash price of the automobile, would not necessarily make the transaction a loan from plaintiff to defendant. Desiring to make the sale and knowing that he could sell the note to plaintiff and the discount he would have to make, he could rightfully make the addition of that amount to the cash price of the automobile, the total being his time-selling price. This would not be usury on his part, since the transaction was a real sale.”

Nor does it make any difference that Evans agreed in advance to permit Woods to make prepayment of the purchase money note at any time without penalty. This agreement was obviously to the benefit of the buyer and cannot be said to be inconsistent with the concept of a sale transaction between Evans and Woods. It should not and will not be viewed as evidence of a fraudulent design to evade the usury laws.

All the Missouri decisions unite in declaring that the ultimate question in a case of this sort, on which the one asserting usury has the burden of proof, is whether the transaction was a bona fide sale of merchandise rather than a loan of money. The trial court here on a bench trial held the transaction to be a bona fide sale. In so finding and concluding, the trial court did not state or apply incorrect legal principles, the decision was supported by substantial evidence and was not against the weight of the evidence. Accordingly, under the standard of review declared in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the judgment must be affirmed.

All concur.

      . A number of more recent cases in other jurisdictions have followed the same thought as did Wyatt with respect to it being preferable for the legislature rather than the judiciary to make any fundamental change in the traditional view, especially in view of the massive impact which such a change would have on the huge volume of installment credit outstanding at any given time which had been extended in reliance on existing law, and also because of the fundamental changes which would be required in a major method of conducting business. E. g., Howell v. Midstate Homes, Inc., 13 Ariz.App. 371, 476 P.2d 892 (1970); Petersen v. Philco Finance Corporation, 91 Idaho 644, 428 P.2d 961 (1967). Even if a change in favor of the minority “modern view” were to be contemplated by judicial rather than legislative action, that would be appropriate only for the Supreme Court, not an intermediate appellate court. Breece v. Jett, 556 S.W.2d 696, 708[5] (Mo.App.1977); Warren v. Director, Missouri Division of Health, 565 S.W.2d 740, 743 (Mo.App.1978).

      . Although the 5% interest rate might appear superficially to be within the statutory maximum rate of interest, the add-on feature operated obliquely to bring the effective rate of interest over the statutory maximum, as was specifically pointed out by the Lucas opinion.

      . See Case Note on the Lucas case, 39 Mo.L. Rev. ill (1974) which states that the court in Lucas “based its decision on the ‘whole interlocking relationship’ between Delta and Beco.”

      .Simple arithmetic demonstrates that the time price differential here did not represent an add-on of a 7⅝% charge, the rate of interest Woods claimed he discussed with Kiely. 7.5 X 12 (years of credit) X $12,168 (the “amount financed” shown in the Disclosure Statement) + $12,168 = $23,119. The face amount of the purchase note was in fact only $20,199.

      . This belief accounts for the insistence by the Woods under their Point I, that they should have been allowed to show their discussion with Kiely of a 7⅛% interest rate.

      . Defendants did in fact honor this commitment. When the Woods paid off the note in 1975, they paid a lump sum of $10,131 in addition to the $6,486 previously paid by them in installments, making a total payment by them on the note of $16,617. This compares with the full face amount of the note of $20,199.


source: Caselaw Access Project

author: SWOFFORD, Chief Judge.

license: Public Domain

text:
    Floyd McCALL, Appellant, v. Helen McCALL, Respondent.
    No. KCD 29699.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      Larry L. Zahnd, Glen A. Dietrich, Zahnd & Dietrich, Maryville, for appellant.
    Tom McBride, Tarkio, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

Appellant (Floyd) and respondent (Helen) were married February 25, 1955, and were separated on December 17, 1976. No children were born of the marriage. Floyd filed a petition for dissolution on December 26, 1976 asking that the marriage be dissolved and the marital property be divided. On December 29, 1976, Helen filed her entry of appearance and answer. In her answer, she admitted the allegations of Floyd’s petition and joined in his request that the marriage be dissolved and that the marital property be divided. At the time of the trial, June 20, 1977, the parties both testified that the marriage was irretrievably broken. On that date, Floyd was 72 and Helen was 68 years of age.

The element of fault or misconduct of either party prior to the separation assumes no decisive prominence on this record, although Floyd raises a point on appeal charging financial misconduct of Helen, as hereafter discussed. On the other hand, the record reveals that the parties led a normal, hard-working farm life on a 40-acre tract, owned by Floyd before the marriage, and other rental land near Fairfax, Missouri during the 22 years of their marriage. The record supports a finding that each contributed to the operation of the farm and the accumulation of marital property in a manner and by joint and individual efforts consistent with this economic and occupational situation.

At the time of the marriage, Floyd was actively engaged in farming and owned the usual farm equipment and a car and a truck. Most of this equipment had been replaced, of course, over the years of the marriage. In addition to the farm, he also owned two residential rental properties in Hamburg, Iowa, and Helen owned one residential rental property in Fairfax, Missouri. At the time of the separation, the parties had accumulated checking accounts, a savings certificate in a Co-op representing proceeds from sales of crops, certificates of deposit, unsold crops, farm equipment, livestock, household furniture and other personalty in the approximate amount of $90,-000.00. No evidence was offered by either party as to the market value of the non-marital real estate. There was no substantial dispute, however, as to the value of the marital properties.

Floyd had filed with the court on March 17, 1977 a Schedule of Marital and Non-Marital Property with an evaluation of all items (except the non-marital real estate) and those evaluations were accepted by the parties and the court below with one slight exception as to the livestock on the farm. Floyd had listed those animals at a value of $2,850.00 but at the trial he reduced his evaluation by $600.00 and Helen testified that in her opinion they were worth more than shown upon the schedule. The court accepted the figure as shown on the schedule.

There was evidence that during the marriage, Helen maintained a separate bank account in which she deposited rentals from the residence she owned in Fairfax and her social security checks, and that at least part of these funds were used to purchase certificates of deposit in her name and that of her husband as owners, and to purchase supplies for the farm. The rentals from Floyd’s Iowa properties were apparently used for similar purposes.

At the time of the domestic breakdown and separation, Helen, on the advice of her attorney, transferred the registration on some of the certificates of deposit to her daughter as joint owner; deposited others still registered in her name and her husband’s in her safe deposit box; withdrew the funds from the joint checking accounts; and generally took over control of the liquid assets. After Floyd filed the suit for dissolution but before the decree, Helen bought a residence in Fairfax for $12,250.00 from these marital funds and took title thereto in her own name.

At the trial, Helen, after testifying about the purchase of this property, further testified, in direct examination, as follows:

“Q. So this house then is joint property, is that not correct?
A. Yes.
Q. And you would consider that to be marital property?
A. Yes.”

In the decree of dissolution and distribution the court set over to Floyd, as his separate property, the 40-acre farm and the two rental properties in Hamburg, Iowa, and the rental property in Fairfax to Helen, as her separate property, as non-marital properties. The decree divided the marital properties as follows:

To Floyd:
Farm machinery, including motor vehicles; crops on the farm; livestock; proceeds from sale of 23 hogs; one checking account containing proceeds from sale of hogs; and certificates of deposit in Farmers and Valley Bank — all totalling $49,-341.56.
To Helen:
Checking account, First National Bank of Tarkio; checking account, Farmers and Valley Bank; Atchison County Co-op Savings Certificate; certificate of deposit in Farmers and Valley Bank; and certificate of deposit in First National Bank of Tarkio — all totalling $40,366.37.

Floyd, the appellant, raises five points of error on appeal.

His first point is an abstract statement of law, accepted by this Court, as to the scope of review on this appeal under Rule 73.01 and Murphy v. CarrOn, 536 S.W.2d 30, 32[2] (Mo. banc 1976). This point, however, violates Rule 84.04(d) and presents nothing for review.

Point II relied upon by Floyd will be hereafter discussed.

Point III raises the claim that the court erred in finding that there was no misconduct on the part of Helen in that she was admittedly guilty of misconduct in transferring marital funds to her own account before the decree.

It is undoubtedly true that Section 452.-330(4), RSMo., Laws 1973, empowers the court to consider the conduct of the parties as affecting the division of marital property, and that this includes financial as well as marital misconduct. Smith v. Smith, 552 S.W.2d 321, 322-323[2] (Mo.App.1977); Conrad v. Bowers, 533 S.W.2d 614, 620[6] (Mo.App.1975). In the case at bar, Helen freely admitted that she deleted Floyd’s name from certain certificates of deposit, took possession of other jointly owned certificates and a savings certificate, and transferred funds in joint checking accounts to her own account. She stated that she did this on the advice of her attorney because of a matter unrelated to the dissolution proceeding, and she made no attempt at any time either to hide this fact or to deplete such funds, except the investment in the residence at Fairfax, after this suit was filed. In the latter regard, she freely recognized that this residence, purchased with marital funds, remained marital property. No challenge was leveled at her testimony in this regard and the trial court could reasonably find that this did not constitute marital misconduct under the statute. Point III is without merit.

Point IV charges the trial court with error in the evaluation of the livestock set over to Floyd. The court evaluated these items of personalty at $2,850.00, the figure used by Floyd in the formal schedule of property filed in this cause. At the trial (and here), Floyd places a value on the livestock of $2,250.00, and Helen at the trial stated that the figure should be higher than $2,850.00. The trial court cannot be charged with error for using a value figure supplied by Floyd in a formal evaluation of these items filed in this cause. This latter statement, that such figure was too high by $600.00, without further convincing evidence of the reason for the purported diminution in value, is not convincing. Point IV is without merit.

Point V charges that the court’s division of the marital property was against the weight of the evidence, was unjust and misapplied the law. It is conceded in appellant’s brief that Section 452.330 RSMo., Laws 1973, does not require an equal division of the marital property but only a just division. In re Marriage of Prenavo, 556 S.W.2d 463, 466[8] (Mo.App.1977); In re Marriage of Cornell, 550 S.W.2d 823, 826[2] (Mo.App.1977); and that the trial court has broad discretion in this regard, Klinge v. Klinge, 554 S.W.2d 474, 477[3] (Mo.App.1977).

The record has been carefully reviewed and each of the relevant factors as set out in the statute, considered in the light of this record. The conclusion is reached that the division of property in the decree was supported by substantial evidence, which may be summarized as follows:

Contribution of Helen. The statute requires that the court consider the contribution of the wife as a homemaker and mother. Although no children were born of the marriage and there was evidence that Helen was not in perfect health, following an automobile accident, she testified that she did housework, raised a garden, canned and helped some with the farm work. Moreover, there is evidence that she expended some of her separate income in the farm operation.

Value of property set apart to each spouse. There is no evidence regarding the value of the non-marital property set apart to each spouse. Floyd, as above stated, had separate property consisting of residences in Iowa and the 40-acre farm, and Helen had the residence in Fairfax, which the evidence showed was in a rundown and poor condition.

The economic circumstances of each spouse. Helen testified that prior to trial, she received income from her rental property, when it is occupied, of $40.00 per month, and social security of $103.20 per month. She set her needs at $300.00 for living expenses per month. She was 68 years of age at the time of trial and unable to work due to her health. There was no evidence as to the amount of rental received by Floyd from the two Iowa properties, although it must be assumed that he derives some income from that source and apparently he was still farming at the time of the decree, although on a somewhat limited scale.

Conduct of parties. This factor has been previously considered in relation to Point III, and the trial court was justified in finding (as it did) no improper conduct on the part of either party.

Under this Point, Floyd argues that it was error for the court to include as a part of the division of property to him the proceeds from the sale of hogs, since those funds were used by him prior to trial in the operation of the farm. There is no specific evidence as to the amount so used, the purpose of such use, whether such use was for permanent improvements or income-producing uses or the balance of such funds on hand. The logic of this argument is elusive because whatever the uses, they could only inure to his benefit, not to Helen’s. He further argues that the court erred in failing to consider the appellant’s contribution to the original farm machinery, presumably that machinery owned by him at the time of the marriage. The court properly considered the replacement machinery owned and in use 22 years thereafter as marital property under Jaeger v. Jaeger, 547 S.W.2d 207, 208[5] (Mo.App.1977). That argument is rejected. There is no merit to Point Y.

The final point for determination of this appeal (considered here out of chronological order) is Point II, wherein the court is charged with error in failing to find that the house purchased by Helen after the filing of this action with marital funds in the amount of $12,250.00 was itself marital property, and in failing to order a division thereof. Such property was not specifically covered by the decree. This point at first blush and on the surface would seem to have merit, but upon a close scrutiny of the record and the actual results of the court’s decree, the conclusion is inevitable that this lack in the decree is not reversible error nor does it affect the jurisdiction of this Court.

First, it should be noted that the record lacks such precise evidence or clear exposition “facilitating a clear and easily discernible picture of the nature and value of the marital property involved” nor of the exact and specific source of the funds used by Helen to purchase the residence. To the contrary, the record emerges in such a state as to require the trial court and this Court “to sift through an array of evidence, presented in most instances in a piecemeal and imprecise fashion” to resolve this problem. This is a burden which should not be imposed but which, perforce, must be assumed. In re Marriage of Simpelo, 542 S.W.2d 558, 561[7, 8] (Mo.App.1976).

By way of preliminary clarification, this Court recognizes the mandate of Section 452.330, that the trial court “shall” decree a division of all marital property as so definitely and logically discussed in L.F.H. v. R.L.H., 543 S.W.2d 520, 522[5] (Mo.App.1976); Cotder v. Corder, 546 S.W.2d 798, 804[6] (Mo.App.1977); In re Marriage of Bradford, 557 S.W.2d 720, 730[19] (Mo.App.1977); Anspach v. Anspach, 557 S.W.2d 3, 5-6[1, 2] (Mo.App.1977), and other decisions since the adoption of the dissolution of marriage act. This decision is not to be construed as either a criticism of the purpose of such statute or as a disagreement with those opinions.

The decree herein divided the marital property upon the approximate basis of 45% ($40,366.11) to Helen, and 55% ($49,341.56) to Floyd. All of the property awarded to Helen was in the nature of liquid assets consisting of bank checking accounts, savings certificate, and bank certificates of deposit. All of these were jointly owned and registered by and in the names of the parties prior to the separation and ensuing litigation. Recalling the unchallenged testimony of Helen, that she asserted dominion over all such property at the time of separation and that prior to the decree she expended $12,250.00 of such funds to purchase the residence in Fairfax which she considered marital property, it is clear what the court below did by the decree to adjust the equities of the parties. The only source available to Helen with which to purchase this property were the liquid assets consisting of marital property accumulated during the marriage. It can be gleaned from the record (although by no means clearly established) and from the firm declarations in respondent Helen’s brief that the source of these funds was the Co-op savings certificate and the checking accounts at the First National Bank of Tarkio and at the Farmers and Valley Bank. These items of marital property were set over to Helen in the decree of distribution. If such was not the source of the purchase price of the property, the remaining items of marital property consisting of certificates of deposit on which Helen had Floyd’s name as joint owner removed could have been partially used to finance the purchase. These items were also set over to Helen in the decree of distribution. Regardless of the exact part of the funds, the only source were the items of liquid personalty eventually set over to Helen in the decree. The , evidence absolutely fails to show any other source available to her to raise the purchase money of $12,250.00.

The conclusion is inevitable that the separate marital property decreed to Helen had been expended to the extent of the purchase price of the residence before the decree was entered. The court therefore awarded her assets which she had already converted into real estate, the title to which was taken solely in her name and which remained in that status at the time of the decree, and presumably is still so held. There was no need to divide the real estate in the decree under these circumstances. The division of the marital property was complete and total. The court’s decree of division was supported by the evidence and no abuse of discretion appears.

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    John W. BROWN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD29713.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      John E. McKay, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

This appeal comes from denial of a Rule 27.26 motion to vacate judgment and sentences of two consecutive terms of fifteen years on counts of rape and sodomy. The direct appeal from the convictions was upheld by this court in State v. Brown, 525 S.W.2d 565 (Mo.App.1975) but the cause was remanded for resentence under the principle of State v. Baker, 524 S.W.2d 122 (Mo.banc 1975) that whether sentences for convictions of multiple offenses shall be made to run consecutively or concurrently is a matter of discretion of the trial court and not of mandatory rule. On remand, consecutive sentences were once again imposed.

At the hearing, the movant alleged eleven grounds for vacation of the judgments, all of which were ruled adversely to contentions. He appeals from seven of the rulings and, additionally, by supplemental brief asserts two criticisms of the conduct of counsel on the Rule 27.26 hearing. The rule, by the very terms, intends only a means to attack a criminal conviction and limits the remedy to test the validity of the sentence entered upon the conviction. A petition under Rule 27.26 asserts a claim of right to release because the sentence was imposed in violation of law. The contentions of a movant that the conduct of counsel at the trial for the criminal offense deprived him of effective representation, of course, assert infraction of the Sixth Amendment right to have assistance of counsel for defense to a criminal prosecution and comes within the efficacy of the rule. The contentions of a movant, however, that counsel at a Rule 27.26 proceeding was ineffective does not attack conduct in a criminal case nor a defect in the original conviction or sentence and so is beyond the scope of the remedy. Neal v. State, 569 S.W.2d 388, 389[2-5] (Mo.App.1978); McCormick v. State, 502 S.W.2d 324, 326[2, 3] (Mo.1973).

The contention of error which remains relates to seven instances of lapses in the effectiveness of trial counsel in the conduct of the defense which, all considered, demonstrate an unfair conviction to be redressed by vacation of sentence and grant of new trial. Johnson v. State of Missouri, 516 S.W.2d 500, 501[2] (Mo.App.1974).

The first incidence of complaint relates to failure of counsel to object to the numerical insufficiency of the venire from which the jury was drawn. There was no evidence produced on this contention at the evidentiary hearing on the motion and the record does not otherwise bear on that matter. The determination by the trial court that the movant failed his burden of proof on that issue is affirmed. McCrary v. State, 529 S.W.2d 467, 470[1, 2] (Mo.App.1975).

The second contention relates to failure of trial counsel to object to certain hearsay testimony by a police officer that the victim had identified the defendant at a lineup. That colloquy came into evidence during examination by the prosecutor of Detective Steen who conducted the lineup. In response to the question: “And without telling me who, was Mrs. Berry [the victim] able to make an identification?” The officer answered, “Yes sir, she positively identified the defendant.” The apparent purpose of this evidence was to corroborate the testimony of Mrs. Berry that defendant was the person who had ravished her, offered for the truth of the matter asserted, and although unresponsive to the question, was nevertheless hearsay. On the direct appeal of conviction, the defendant raised the issue as plain error, but that contention was denied by this court. State v. Brown, supra, 525 S.W.2d l.c. 567[3]. Whether the lapse constituted ineffective assistance of counsel remains another matter.

We note that trial counsel was summoned as a witness at the Rule 27.26 hearing but not interrogated as to his purpose to let the testimony go by without objection. However, undiscerned or improbable, the failure to object may have been an intentional strategy, but that should not be a matter for our speculation when that determination was discoverable but neglected at the hearing on the motion. We do not rest our rejection of this issue on that basis altogether. The record shows independent evidence that the victim identified the defendant at a lineup. The nature of the encounter was such that the victim and assailant were in the company of the other for more than half an hour and in the most intimate circumstances. The identification of the defendant by the victim was both positive and detailed and thoroughly described the features of the assailant as well as his garb. This identification was corroborated by the reception as an exhibit of a distinctive pair of shoes described independently by the victim as those worn by her attacker and seized from the person of the defendant upon his arrest on the day of the event.

The hearsay evidence given by Detective Steen, therefore, was only corroborative of the identification firmly made by the victim and was not otherwise of the quality, all the evidence considered, calculated to “tip the scales against the defendant” — and so prejudicial. State v. Degraffenreid, 477 S.W.2d 57, 64, 65[14-15] (Mo.banc 1972). The evidence of guilt was sufficiently strong and the identification of the defendant as the culprit sufficiently confirmed independently that even were failure to object to the hearsay identification testimony evidence of ineffective counsel, the error was harmless. Morris v. State, 547 S.W.2d 827, 829[5] (Mo.App.1976).

The third contention involves a question of fact ruled by the trial court against the movant on disputed evidence and so finally resolved against him. The defendant contended that trial counsel failed to interview or undertake to locate witnesses for his alibi defense. Counsel testified that he did indeed investigate and consult with all witnesses made known to him, that his investigators attempted to find the solitary witness not interviewed, but without avail. The trial court determination of that fact issue against the movant was on substantial evidence and will not be disturbed. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

The fourth instance of ineffectiveness of counsel is asserted as the failure to object to the display to the jury of the arrest records of the defendant. This contention is utterly without basis in the evidence both at the trial and at the post-conviction proceeding. The trial court ruled properly that the movant had failed his burden on the issue.

The fifth contention fails for the same reason: no evidence was adduced to support the claim that trial counsel was ineffective for failure to object to communication during the criminal proceedings by the prosecu-trix with “another potential prosecutrix.” Whatever may be the prejudicial import of that assertion, it bears no relation to the trial as disclosed by the record.

The sixth contention was a disputed issue of fact found on substantial evidence against the movant, and thus conclusive upon us. The movant asserts that at the preliminary hearing the prosecutrix at first was unable to identify him as her assailant and was induced to point him out by a ruse of the prosecutor, too convoluted for simple narration, but that defense counsel, although informed of this taint by the mov-ant, failed to seek suppression of the identification evidence at the trial. The evidence on this point is only fleeting and was, in any event, denied by counsel. The court on the Rule 27.26 hearing did not believe the testimony of the movant on this issue and no reason appears to disturb that determination.

The seventh, and final, contention on the motion asserts that counsel was ineffective for failure to investigate and develop newly discovered evidence in the form of two letters received by trial counsel. One letter arrived after the jury verdict of guilt but before the motion for new trial was argued. The other arrived some five months later. The tenor of the letters was exculpatory to the movant. They were written by one who claimed to have committed the crimes. The first message directed where a pair of scissors — described by the victim as the assault weapon — was to be found and, where in fact they were then found. A fingerprint analysis of the letters proved unsuccessful. All of these events were reported to the trial court and known at the time sentence was imposed. Trial counsel discussed the information developed, but both were in agreement that the evidence was not of sufficient stature to require a new trial on the ground of newly discovered evidence.

There is no intimation as to what the second letter disclosed and although both communications were available as evidence on the Rule 27.26 procedure, neither was called. The police were requested by trial counsel to investigate some of the contents of the second letter [not disclosed], but refused. Nor did the movant show any undiscovered and valuable information to justify the court to conclude on the motion that movant was denied a fair trial by failure of trial counsel to make further investigation. To the extent the record discloses, trial counsel acted on the contents of the letters to the extent duty reasonably required. His investigator and the police followed the directions of the first letter to discover the assault weapon, and the refusal of the police to pursue whatever further lead the second letter suggested, absent more cogent inference of newly discoverable evidence, we must assume was a reasonable response — both by the police and counsel— that further effort would avail nothing significant. The means to make that proof was available to the movant by the mere production of the two letters. He has failed that simple burden. His contention on the motion, and now on appeal, for a new trial on the basis of dereliction of counsel to develop newly discovered evidence fails to prove the third criterion for such a remedy: that the evidence was so material that a new trial would probably acquit the defendant. State v. Lee, 492 S.W.2d 28, 32[9, 10] (Mo.App.1973). That the location of the assault weapon was known to one other than the defendant found guilty for its use does not imply by necessity the innocence of the defendant. The pair of scissors was the only evidence newly discovered; there is no indication of any other clue which the letters suggested. The criteria for a new trial on newly discovered evidence were not shown and the trial court correctly determined that ineffective assistance of counsel on that issue had not been proven. The evidence supports the judgment entered.

The judgment is affirmed.

All concur.


text:
    Barbara EDWARDS, Appellant, v. STATE FARM INSURANCE COMPANY, Respondent.
    No. KCD 29724.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    H. George Lafferty, Jr., Kansas City, for appellant; Lafferty, Horowitz & Shurin, Kansas City, of counsel.
    Sheridan, Sanders & Simpson, P. C., G. Michael Fatall, Paul L. Redfearn, III, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Appeal from summary judgment of dismissal of plaintiff’s petition on contract of uninsured motorist insurance, filed five years and twenty-six days after the cause of action arose. The question is whether the tort action limitation of five years applies to bar this suit by an insured against her insurer for injuries received in a collision with an uninsured motorist. Reversed.

On December 16, 1971, Barbara Edwards was injured and damaged when her automobile was struck from the rear by an automobile driven by one Robert Rich Gard-ner at Interstate Highway 70 and 13th Street entry ramp in Kansas City, Missouri.

On January 11, 1977, she filed suit against State Farm Insurance Company under her policy of uninsured motorist coverage. She alleged: The collision of December 16, 1971, was caused by the negligence of Robert Rich Gardner, and she was injured as a result of his negligence. Robert Rich Gardner was an uninsured motorist who removed to Illinois and hid himself so that normal service of process could not be had upon him despite due diligence to locate him. She possessed a valid automobile insurance policy issued by State Farm which afforded her uninsured motorist coverage, and she was in compliance with all conditions precedent of the policy. Her insur-anee company, without reasonable cause, refused her demand under the contract for compensation for her injuries, and she was thus entitled to recover actual damages, damages for wrongful refusal of compensation, and attorneys’ fees.

On February 18,1977, State Farm Insurance Company filed answer. It denied the allegations of plaintiff’s petition and raised a defense of contributory negligence. It also moved for summary judgment on ground plaintiff’s action was barred by the statute of limitations.

The court sustained defendant’s motion for summary judgment, found plaintiff’s action barred by the five-year statute of limitations, and entered judgment for defendant and against plaintiff.

Under the uninsured motor vehicle coverage of plaintiff’s policy of automobile insurance, defendant, in standard form, agreed:

“To pay all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by the accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured * * * is legally entitled to recover such damages, and if so, the amount thereof shall be made by agreement between the insured * * * an(j the company or, if they fail to agree, and the insured so demands, by arbitration.”

Section 516.120 RSMo requires that an action for injury to the person, not arising on contract, shall be commenced within five years. Section 516.110 provides that an action on a written contract for payment of money shall be commenced within ten years.

An action on the uninsured motorist provision of an automobile insurance policy is an action in contract, Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606 (Mo.App.1963); Reese v. Preferred Risk Mutual Ins. Co., 457 S.W.2d 205 (Mo.App.1970); and is governed by the ten-year statute of limitations, Section 516.110, RSMo 1969; Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 4 (Mo.App.1975).

Appellant thus contends that her action against her insurance company was timely filed January 11, 1977, because it arose December 16,1971, and she had ten years from that date in which to file.

Respondent, to escape effect of the foregoing, relies principally on Crenshaw v. Great Central Ins. Co., supra, and argues that plaintiff did not file suit against the uninsured motorist within five years from the date of the collision with him; that her tort claim against him was thus barred; that she was thus unable to establish she was “legally entitled” to recover damages against the uninsured motorist at the time she filed suit against her insurer and was, therefore, precluded from recovery from her insurance company.

Missouri has recognized that it is not necessary for an insured to obtain a judgment against or to sue the uninsured motorist prior to enforcement of rights against his own insurance company, Hill v. Seaboard Fire & Marine Ins. Co., supra; Reese v. Preferred Risk Mutual Ins. Co., supra. The insured must, however, show that the uninsured motorist would have been liable to the insured. Byrn v. American Universal Ins. Co., 548 S.W.2d 186, 188[2] (Mo.App.1977).

While there have been cases in Missouri dealing, in their circumstances, with whether the insured is “legally entitled to recover,” the precise question in this ease is one of first impression in Missouri. Accordingly, it is appropriate to consider cases from other jurisdictions which hold, as found in Crenshaw v. Great Central Ins. Co., supra, l.c. 5, “that in a suit [for personal injuries] against the insurer under a policy of automobile insurance containing an uninsured motorist provision the statute of limitations applicable to contract actions applies, and that the general statute of limitations relating to tort actions is inapplicable.”

In Detroit Automobile Inter-Insurance Exch. v. Hafendorfer, 38 Mich.App. 709, 197 N.W.2d 155 (1972), the insurer brought a declaratory judgment action, contending that defendant-insured’s claim under uninsured motorist coverage was barred by the three-year tort statute of limitations. The trial court agreed and barred insured’s action. The court of appeals, faced with the same question of first impression, considered cases from other jurisdictions and determined that insured’s action was timely filed within the six-year contract statute of limitations. The court’s rationale was that “whatever claim that defendant insured may validly possess against plaintiff insurer arises solely out of a breach of a specific provision of a contract issued by plaintiff [insurer] to defendant [insured]. It was not the tortious action of plaintiff insurer that gave rise to the claim based on the uninsured motorist clause of the insurance policy in this case. While it is true that a claim by defendant [insured] against the uninsured motorist in this case would be barred by the three-year statute of limitations, plaintiff insurer is not representing the uninsured motorist in this case, as pointed out in Sahloff, but rather itself, on its own contract. Moreover, defendant insured has not fabricated a contract claim, here, in order to accomplish indirectly what he could not do directly. Just as we must look to the real nature of the claim to determine whether a contractual action is, at base, an action for injury to person or property, we must also look to the real nature of this claim to determine whether a claim possessing personal injury aspects is, at root, an action for breach of contract.” 197 N.W.2d 1.c. 159.

Schulz v. Allstate Insurance Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968), an action for damages arising from an automobile collision by an insured against his insurer on uninsured motorist coverage, was dismissed by the trial court on the bar of two-year statute of limitations for actions for bodily injury. The appellate court, in agreement with New York courts and Booth v. Fireman's Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1968), in reversal, rejected an argument “that since the tortfeasor himself could now raise the two-year statute of limitations, the injured party no longer could legally recover damages from such tortfeasor, and this being true, not by virtue of any statute of limitations but by virtue of the terms of the contract itself, no recovery can now be made from the insurance company,” and held “such statute of limitations is a personal protection to the party causing the injury and in no way affects the legal obligation of the insurance company to pay, pursuant to its contract, monies which the insured could legally recover from the tortfeasor assuming otherwise the financial and procedural ability to so recover.” 244 N.E.2d l.c. 550.

In Booth v. Fireman’s Fund Ins. Co., supra, an action for damages resulting from collision with an uninsured motorist by insureds against their insurer under uninsured motorist coverage was held to be ex contractu subject only to a plea of proscription of ten years, and not ex delicto for purposes of application of one-year proscription. The insurer argued that “legally entitled to recover [from owners or operators of uninsured vehicles]” required an insured to establish every element of a cause of action in tort including timely filing within the tort statute of limitations. The court, citing DeLuca v. Motor Vehicle Accident & Indemn. Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966), and Hill v. Seaboard Fire & Marine Ins. Co., supra, rejected such argument and interpreted “legally entitled to recover” to mean “that the plaintiff [insured] must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages.” 218 So.2d l.c. 583. See also Reese v. Preferred Risk Mutual Ins. Co., supra, 457 S.W.2d l.c. 208.

Respondent argues also that if an insured be allowed ten years in which to file directly against his insured, then whenever a claim is filed after five years, the insurer would be denied subrogation against the uninsured motorist, and would suffer the hardship of trial five years or more after the facts arose. This argument has been answered, Sahloff v. Western Casualty & Surety Co., 45 Wis.2d 60, 171 N.W.2d 914 (1969), l.c. 918-919: “This is another phase of the [already rejected] argument that the insurer stands in the shoes of the uninsured motorist and therefore should have all his rights. The insurer has not so contracted in the uninsured motorist endorsement. * * the action by an insured against his insurer under the uninsured motorist endorsement is an action on the policy and sounds in contract although in order to recover the insured must prove the negligence of an uninsured motorist. * * *

“It is true an insurer * * * is put to some disadvantage when it can no longer pursue subrogation against an uninsured motorist. However, such hardship does not go to the nature of the cause of action and consequently does not determine what statute of limitations should apply. The application of any statute of limitations generally creates a hardship but it is a hardship because someone delayed doing what he might have done. * * * this argument overrates the importance of subrogation because an insured motorist tends to be financially irresponsible and a subrogation right against such a person is not worth very much.”

The quoted cases, together with the others cited at footnote 2, are persuasive in answer to the question in this case, and are consistent with the purpose of Missouri’s uninsured motorist statute, Section 379.203 RSMo Supp.1975, which is to provide the person injured by an uninsured motorist with protection he would have had if the negligent motorist had been insured under a standard liability policy. Brake v. MFA Mutual Ins. Co., 525 S.W.2d 109, 112 (Mo.App.1975); Webb v. State Farm Mutual Automobile Ins. Co., 479 S.W.2d 148, 151 (Mo.App.1972).

Judgment reversed; cause remanded.

All concur.

      . See: Crenshaw v. Great Central Ins. Co., supra, where action against the insurer to recover under uninsured motorist provision for wrongful death of insured, commenced three years and four months after death of insured in motor vehicle collision, was barred by two-year statute of limitations applicable to wrongful death actions, for the reason that “compliance with the requirement that an action for wrongful death be commenced within two years is a necessary condition attached to the right to sue—not merely a statute of limitations in the ordinary sense.” 527 S.W.2d l.c. 4.

        Byrn v. American Universal Ins. Co., supra, where inability to show compliance with Iowa guest statute was a substantive impediment to recovery by Missouri resident under uninsured motorist provision when uninsured motorist was a resident of Iowa and the casualty occurred in Iowa.

        Noland v. Fanners Ins. Exchange, 413 S.W.2d 530 (Mo.App.1967), where plaintiff’s husband was the uninsured motorist, and the rule that neither spouse may maintain a civil suit against the other, during coverture, based on a tort occurring during coverture, was a substantive impediment to recovery from the insurance company under uninsured motorist provision.

        State ex rel. Miller’s Mut. Ins. Assoc. v. Sanders, 538 S.W.2d 708 (Mo.banc 1976), where cause of action for recovery under uninsured motorist coverage accrued where the collision with uninsured motorist occurred, and improper venue was a substantive impediment to the suit.

      . Transnational Ins. Co. v. Simmons, 19 Ariz. App. 354, 507 P.2d 693 (1973); Detroit Automobile Inter-Ins. Exch. v. Hafendorfer, 38 Mich.App. 709, 197 N.W.2d 155 (1972); Pickering v. American Employers Ins. Co., 109 R.I. 143, 282 A.2d 584 (1971); Turlay v. Farmers Ins. Exch., 259 Or. 612, 488 P.2d 406 (1971); Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1968); Sahloff v. Western Casualty & Surety Co., 45 Wis.2d 60, 171 N.W.2d 914 (1969); DeLuca v. Motor Vehicle Acc. Indemnification Corp., 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Schleif v. Hardware Dealer’s Mut. Fire Ins. Co., 218 Tenn. 489, 404 S.W.2d 490 (1966).

      . Schleif v. Hardware Dealer’s Mut. Fire Ins. Co., supra; Sahloff v. Western Casualty & Surety Co., supra; Booth v. Fireman’s Fund Ins. Co., supra; Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968).


text:
    MISSOURI PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. ALLIED MANUFACTURERS, INC., et al. (Exceptions of Mesco Industries, Inc.), Defendant-Respondent.
    No. KCD 29754.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      Gary J. Brouillette, John R. Weinsenfels, Jackson, Dillard, Brouillette & Farchmin, Kansas City, for plaintiff-appellant.
    George H. Chamo, Jr., James P. Jouras, Kansas City, for defendant-respondent.
    Before HIGGINS, Special Judge, Presiding, PRITCHARD, J., and WELBORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge, Presiding.

Action in eminent domain to impose easement on real estate owned by Mesco Industries, Inc., for electric transmission and distribution lines. Appeal by Missouri Public Service Company from verdict which awarded landowner $103,000 for the taking and judgment entered thereon. Appellant questions rulings by the court on admission of testimony and evidence on behalf of landowner and on landowner’s argument, arid whether the verdict was against the weight of the evidence and a result of passion and prejudice. Affirmed.

Plaintiff condemned 18 tracts of land for construction, maintenance and operation of electric transmission and distribution lines consisting of towers, poles, wires, crossarms, insulators, guy wires, and other structures, appurtenances and appliances necessary for transmission and supply of electric energy between Blue Springs and Raytown, Missouri, and to the public in other areas situated beyond such points. Included was a 2.19-acre tract owned by Mesco. An easement was taken along the northern boundary of the tract, overlapping railroad right of way, extending 30 feet south into the tract, and amounting to 17,240 square feet, approximately 18% of the total tract. Mes-co could use the north 20 feet of the easement but could not erect any improvements without consent of the company. It could erect improvements limited to 14 feet in height on the south 10 feet. The date of taking was June 23, 1972. Condemnation commissioners assessed Mesco’s damages at $13,000; both sides excepted.

Mesco offered two witnesses on its damages. Carl Magers, one of two owners of Mesco, described Mesco's premises and operation and the effect of the easement. In his opinion the difference in value of Mes-co’s tract before and after imposition of the easement was $105,000. Aubrey Loyd, an industrial developer, used a square-foot approach and, in his opinion, imposition of the easement depreciated the value of Mesco’s tract $103,000. Missouri Public Service Company offered Curtis Bliss, a real estate appraiser. Mr. Bliss used a comparable sales approach and, in his opinion, Mesco’s damages amounted to $10,500.

Appellant charges the court erred (I) in admitting the testimony of Carl Magers because his identity was not revealed in answer to Interrogatory 22.

Plaintiff propounded original interrogatories January 24, 1974, and supplemented them October 31, 1975. Supplemental interrogatory 22 asked defendant:

“State the name and address of any person, firm or corporation known to you or anyone acting on your behalf who has knowledge of or who has formed an opinion as to the extent of damage sustained by defendants as a result of the condemnation of the power line easement over real estate owned by them * * *.”

Defendant responded: “Aubrey C. Loyd, Ten Main Center, Kansas City, Mo.”

Carl Magers was mentioned as an opinion witness on value of and damages to Mesco’s property during defendant’s opening statement, at which time plaintiff complained of surprise in that Mr. Magers had not been named in response to interrogatory 22. Action was deferred by the court for determination “before we get to this witness.” Such prior determination was not made and Mr. Magers testified on direct examination without objection as follows:

“Q. Mr. Magers, what was the value of your property in your opinion after you had completed all of the improvements you testified about yesterday and before the easement was imposed on it? * * * A. Approximately $255,000. Q. And do you have an opinion as to the value of this property after the easement was imposed, the change in value as a consequence of all of the things you have testified in great detail here? * * * A. My opinion, it would have cut the value to $150,000. Q. And the difference between 255 and 150 [$105,000], you are stating that you, in your opinion, this property has been depreciated in value by the imposition of the easement? A. Yes.”

In its motion for new trial, plaintiff asserted it should have a new trial on the ground “the court overruled plaintiff’s objections with regard to the testimony as to damages elicited from witness Carl Magers when * * * in answering Interrogatory 22 * * * defendant did not list witness Carl Magers as being a potential witness regarding damages, and thus the court should not have allowed Carl Magers to testify as to damages which came as a complete surprise to plaintiff and voided * * * plaintiff’s case preparation.”

Appellant argues that the trial court abused its discretion by failure to exclude Mr. Magers as a witness as provided in Rule 61.01 because he was not disclosed in answer to interrogatory 22.

Appellant’s record did not preserve the point now urged for review. Rule 84.13. In any event, admission or rejection of testimony of a witness whose name was not revealed by answer to interrogatory is within the discretion of the court. Thomas v. Fitch, 435 S.W.2d 703 (Mo.App.1968). No abuse of discretion on account of surprise to plaintiff appears here because plaintiff had adequate notice of the likelihood of Mr. Magers as a witness for defendant. By answer to interrogatories 1 and 2(a) through (h), plaintiff was advised that Mes-co acquired subject property December 1, 1967, by purchase for $55,000 with a value at purchase of $75,000 to $100,000, at condemnation of $208,000, after condemnation of $105,000, and that D. R. Magers, Carl Magers, and Aubrey C. Loyd had knowledge of each of the above matters. See First Nat. Bank of Cape Girardeau v. Soco-ny Mobii Oil Co., 495 S.W.2d 424, 435 (Mo. 1973). Too, Mr. Magers was an owner-partner in Mesco. Failure, if so, to disclose his identity in response to interrogatory seeking names of expert witnesses furnishes no ground for denial of his company’s proffer of his testimony on value because he, as an owner, is not an “expert witness” in the usual sense. Krug v. United Disposal, Inc., 567 S.W.2d 133, 135 (Mo.App.1978).

Appellant charges the court erred (II) in admitting testimony of Carl Magers and Exhibits 5 and 6 as to plans for future expansions of defendant’s facilities “which were not in being at the time of taking,” asserting that defendant had no plans “reduced to writing,” and that its evidence was “speculative and conjectural and whose purpose and effect was to enhance defendant’s damages because it was prevented from carrying out its plan.”

Defendant’s theory, in the testimony of Mr. Magers and Mr. Loyd, was that in addition to the damage it sustained by appropriation of its property into plaintiff’s easement, it also sustained damages to the remaining property. Defendant proffered the questioned evidence in connection with this theory.

Mesco engaged in industrial metal fabrication, principally for the airline industry. Prior to 1967, its plant was located in Grain Valley. The Grain Valley site did not provide adequate facilities for expansion of the business; and, after search, Mesco acquired the tract in question in Blue Springs. The existing improvements at the Blue Springs site were approximately the same as in Grain Valley, 11,000 square feet, but with room for expansion, zoned for heavy industry, and situated in an industrial park. It abutted 10th Street on the west. The street was unimproved, and defendant conveyed 25 feet of its property to the city for widening and paving. The main building upon acquisition was essentially a shell which defendant reworked to make it adaptable to its operation, including “knock-out” walls for connections with proposed future construction. Refurbishment was a continuing process. Site improvements were also made to provide parking areas, drainage, landscaping, and equipment areas. Part of such improvements were to the railroad right of way on the north. A shot-blasting addition was made to the paint shop. Underground gasoline storage and pump were installed. In 1970, Mesco announced publicly its plans for three expansions of its principal structure as it stood after the paint shop addition. A machine shop of 1,344 square feet, a shear room of 5,350 square feet, and an additional building of 3,000 square feet were constructed. Physical construction of a shear room of 2,000 square feet, an addition to the office of 360 square feet, and additions extending to the shear room, and an extension of the paint shop of 1,650 square feet, was abandoned on account of the easement. A portion of the proposed machine shop on a part of the easement had to be eliminated, reducing its size by 990 square feet. These matters were discussed by Carl Mag-ers and embodied in schematic drawings, Exhibits 5 and 6. Exhibit 4 was three detailed drawings, dated in 1971, also bearing on the intended and abandoned expansion. Exhibit 6 portrayed omission of a corner of the machine shop due to imposition of the easement.

It would be difficult if not impossible to reconcile the cases on this issue because each speaks to its own facts. Generally, it may be said that the admissibility of evidence of planned future use is conditioned upon a showing of a demand in the community for the future use having regard for the existing business or wants of the community, that the uses are considered reasonably probable and not purely speculative and that a relationship between the future use and the present value of the land exists. See Straughan v. Murphy, 484 S.W.2d 465, 470 (Mo.1972), and cases there' cited.

Closest in point and supportive of the court’s ruling in this case is City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149 (1943). In 1928 Paramount bought a tract of land in St. Louis with 125 feet frontage on Chippewa Street, and a depth of 195 feet. Chippewa and Gravois Streets were then unimproved, and Paramount’s idea was to locate in such industrial part of the city. In recognition of the insufficiency of the tract for all its purposes, Paramount also purchased an additional adjoining 35 feet. Subsequently, Paramount gave part of the tract to the city for improvement of Chippewa, and paid special benefit assessments for improvement of Chippewa and Gravois. In improvement of its premises, Paramount left 30 feet along the east side for receiving and shipping merchandise, and constructed an L-shaped building. Space was reserved for a future building design to join, when completed, the original building. The original plans provided for the future addition, including reinforced supports for such future addition. Machinery was installed so as to coordinate with machinery to be installed in the future. Construction planned for the future had not been accomplished due to depression and threat of war. The condemnation in question cut off a triangular tract in reduction of that part of the tract reserved for future expansion. The landowner adduced evidence that the taking was a hindrance to expansion of its plant facilities as planned and thereby reduced the fair market value of its entire tract. The consequential damage resulting from such limitation was chief in consideration of landowner’s witnesses in fixing damages occasioned by the taking. The city’s witnesses arrived at “far less” amounts than did landowner’s witnesses. The city’s complaint was whether it was proper to admit testimony and exhibits on hindrance to expansion as a factor to be considered in determining damages for the partial taking. Apropos Mesco’s case, the court held, 168 S.W.2d l.c. 153-154 [5-10]:

“In estimating the amount of consequential damages sustained, or, in other words, the amount of the depreciation in the value of the land, the owner is entitled to have the jury informed as to all those facts relating to the condition of the property which would naturally impress a person of ordinary prudence in negotiating for the purchase of the same. The use to which the property has been devoted, and its capability or special adaption for such use, are of course primary elements to be taken into account; and anything which is directly injurious to such capability or special adaptation for a particular use, and thereby affects the market value of the property, is therefore competent to be shown as a legitimate factor in bringing about the total damage sustained for which it is contemplated that the owner shall receive just compensation.

“In the case of a business establishment, where the property (such as respondent’s) is particularly suited for the special use to which it has been put, it is entirely logical that in planning the establishment, ground should have been reserved for future expansion and enlargement; and it is reasonable to assume, as respondent’s evidence discloses, that the capability of the premises for such future expansion and enlargement would constitute one of the essential elements which one in that business would take into consideration in arriving at the fair market value of the property. This is not to say that compensation may be awarded upon the theory of injury to future buildings which do not exist, for of course it is true that damages may only be recovered for injury sustained as of the date of the appropriation. If the proof shows, however, that the immediate result of the appropriation is to hinder expansion so as to depreciate the market value of the property as of the date of the appropriation, it relates, in such circumstances, to a then existing fact, and is proper to be shown as one of the elements to be considered in determining the amount of compensation to be awarded. St. Louis, M. & S. E. R. Co. v. Continental Brick Co., 198 Mo. 698, 96 S.W. 1011.

“In this instance, respondent’s intention to expand its plant was at all times a fixed and present one, * * *.

“There was abundant evidence to show that the hindrance to expansion resulting from the appropriation of the triangular tract was a matter directly and proximately affecting the value of the whole property as of the date of the appropriation; and such fact was therefore not only a proper element of damage to be shown by respondent, but it was competent to be shown in terms of limited production, which was the most accurate manner in which the extent of such damage was capable of ascertainment. It is to be kept in mind that the question was not one of recovery for loss of profits or for injury to business as such, all of which, in and of itself, is regarded as too speculative and remote to be considered as a basis for ascertaining the damages in a condemnation proceeding. On the contrary, the question was one of a present existing fact or condition affecting the then present value of the property as decreased by the taking of the particular portion which the city appropriated; and so regarded, respondent’s evidence relating to the resulting hindrance to expansion was relevant to the issue, and the court was right in overruling the objections to its admission. St. Louis, M. & S. E. R. Co. v. Continental Brick Co., supra.” See also Southwestern Bell Telephone Co. v. Webb, 393 S.W.2d 117 (Mo.App.1965), where the landowner was permitted evidence to show that telephone easement would cause revision of plans for construction of sewer lagoon resulting in consequential damage; and Straughan v. Murphy, supra, where landowner was permitted to testify of intention to develop property affected by condemnation as a lake site. Compare Northeast Missouri Electric Power Coop. v. Todd, 401 S.W.2d 161 (Mo.App.1966), where plans of a property owner to construct an airport were too speculative to be considered in determining market value of land taken.

Appellant charges the court erred (III) in admission of defendant’s Exhibit 18 and testimony of Carl Magers concerning interruption of materials flow due to the taking, asserting same is inadmissible evidence of business injury implying loss of profits.

There is some doubt from appellant’s transcript references whether there was the necessary'objection to preserve this charge for review. In any event, however, the exhibit and the testimony of Mr. Magers were same matter as the evidence heretofore held admissible on “hindrance to expansion” under City of St. Louis v. Paramount Shoe Mfg. Co., supra.

Appellant charges the court erred (IV) in not granting plaintiff’s motion for new trial “because in defendant’s closing argument, counsel argued that defendant was an unwilling seller, intimated that plaintiff * * had acted in a negligent and tortious manner in locating the easement and, contrary to the instructions, that the location of the easement should be considered in assessing damages.”

Appellant concedes the absence of objection to defendant’s argument. As a consequence, no charge of error was preserved with respect to the argument, Rule 84.13(a); and the matters mentioned do not constitute “plain errors affecting substantial rights” within the meaning of Rule 84.13(c). Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977).

Appellant charges the court erred (V) in not granting plaintiff’s motion for new trial “because the verdict was against the weight of the competent evidence and the result of the’ passion and prejudice of the jury.”

The verdict was responsive to evidence adduced by defendant through its exhibits and the opinions of Mr. Magers and Mr. Loyd; and all such evidence has resisted attacks on its admission under appellant’s points I through III, and argument thereon under point IV. Accordingly, it may not be said that it was unsupported or a result of passion and prejudice arising from argument. Conflicts and disparities between such evidence and that adduced by defendant were properly for the jury to resolve. State ex rel. State Highway Commission v. Grissom, 439 S.W.2d 13, 17 (Mo.App.1969).

Judgment affirmed.

All concur.

      . The record does not show an objection at this reference or at any other place.

      . Again, there is no reference to, nor does the record reveal, such action and objections. Neither is there any record by way of motion to strike.