text:
    Donna L. PREWITT, Individually and as Administratrix of the Estate of William C. Prewitt, IV, Appellant, v. The CONTINENTAL INSURANCE COMPANY, Respondent.
    No. 37204.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 22, 1976.

      Mcllroy & Millan, John M. Mcllroy, Jr., Bowling Green, for appellant.
    Paul E. Williams, Bowling Green, for respondent.
   GUNN, Judge.

Plaintiff-appellant, individually and as administratrix of the estate of her deceased husband, filed suit against defendant-respondent to recover on an insurance claim for hail storm damages to farm buildings. After hearing the evidence without a jury, the trial court issued its order denying plaintiff’s petition for damages. The issue on appeal is whether on the date of loss and damage to the farm property the plaintiff had a sufficient insurable interest in the property to support a recovery under a contract of insurance with defendant. We find that such an insurable interest existed and reverse and remand.

On March 18, 1974, plaintiff, her husband (subsequently deceased), and her husband’s mother entered into a contract to sell their Pike County farm to Marion and Frank. Mackey for $275,000. Under the sales contract the Mackeys were to make a $100,000 down payment by April 1, 1974, with the balance of $175,000 due after June 20,1974. The closing date for the sale was designated as on or before September 1, 1974, and the plaintiff was to retain possession of the residence and farm buildings until the date of closing, remaining liable for all damages to such buildings until closing. On April 1, 1974, a warranty deed to the entire property was delivered by the sellers (plaintiff, her husband and her husband’s mother) to the Mackeys as buyers, and it was recorded on June 6, 1974. On June 14, 1974, a hail storm caused damage to some of the buildings on the farm, including the residence. The plaintiff continued to live in the farm residence until sometime in July, 1974 and kept some of her possessions in the farm outbuildings until the September, 1974 closing. On or about the September closing date, the plaintiff relinquished total possession of the farm properties to the purchasers and was paid the $175,000 balance of the purchase price, less $2,467.10 estimated to be the cost of the hail storm damage repairs, which under the sales contract the plaintiff was obligated to pay. In accordance with the sales contract the plaintiff reaffirmed her obligation to the Mackeys to pay for the storm damages to the property and agreed to pay for any repair costs exceeding those estimated and deducted at closing.

Plaintiff filed a timely claim for her storm damage in the amount of $2,467.10, the estimated cost of repairs, with the defendant, who was the insurer of plaintiff’s farm under a farmowners insurance policy paid for by the plaintiff and her husband. The defendant denied the claim alleging that since the plaintiff and her husband had deeded the property to the purchasers prior to the hail storm, the plaintiff had no insurable interest. The defendant on refusing the claim offered to refund a portion of the insurance premium which the plaintiff and her husband had paid.

Plaintiff thereupon filed suit against defendant for $2,467.10. At trial, plaintiff presented evidence that the total cost of repairs to the farm buildings by reason of the hail storm damage was $4,919.14 and sought to amend her pleadings to conform to the evidence by increasing the prayer for damages from $2,467.10 to $4,919.14. The trial court denied the amendment and dismissed plaintiff’s petition.

The farmowners insurance policy issued by defendant on the farm buildings and residence occupied by plaintiff and in effect at the time of the hail storm specifically covered hail storm damage. The issue, then, is whether plaintiff had an insurable interest in the damaged property to entitle her to recovery under the policy. We find that the plaintiff did have the requisite insurable interest, but first, we indite a few basic legal aphorisms relevant to this issue. A prerequisite to the enforcement of any insurance contract is that the insured have an insurable interest in the property. Moore v. State Farm Mutual Automobile Insurance Co., 381 S.W.2d 161 (Mo.App.1964); Galati v. New Amsterdam Casualty Co., 381 S.W.2d 5 (Mo.App.1964); American Central Ins. Co. v. Kirby, 294 S.W.2d 556 (Mo.App.1956). Where the subject matter of the insurance is property, the insurable interest must exist at the inception of the risk as well as at the time of the loss. Estes v. Great American Ins. Co. of New York, 112 S.W.2d 153 (Mo.App.1938). The absence of an insurable interest at either point in time converts the contract into a wager and is void as against public policy. Moore v. State Farm Mutual Automobile Insurance Co., supra; Galati v. New Amsterdam Casualty Co., supra; American Central Ins. Co. v. Kirby, supra.

In Sander v. Mid-Continent Insurance Co., 514 S.W.2d 634, 637 (Mo.App.1974), and Wrausmann v. Kansas City Fire and Marine Insurance Co., 477 S.W.2d 741, 742 (Mo.App.1972), “insurable interest,” as taken from 44 C.J.S. Insurance § 175, was characterized as follows:

“In general a person has an insurable interest in the subject matter insured where he has such a relation or connection with or concern in, such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against.”

Thus, where an individual has a direct pecuniary interest in the preservation of the property, an insurable interest in the property exists for that individual.

The defendant apparently based its defense on the fact that the plaintiff, her husband, and husband’s mother executed a deed to the property prior to the hail storm. However, plaintiff retained possession and occupied the residence and farm outbuildings from the date of the deed, April 1, 1974, until the closing date in September, 1974, long after the June hail storm. Although the plaintiff may not have had legal title to the damaged property after the execution and delivery of the warranty deed to the purchasers, she certainly had a direct pecuniary interest in the property. Under the terms of the sales contract, plaintiff was obligated to pay for any damages to the property by “fire, tornado or otherwise,” which would include hail storm damage, until the September closing date. Since the storm damage occurred prior to the closing date while plaintiff was in possession of the buildings and under an obligation to pay the purchaser for casualty losses, plaintiff had an insurable interest in the property.

The conveyance of the warranty deed prior to the loss is not dispositive in this case. The plaintiff’s contractual obligation for indemnifying the purchaser for damages was not extinguished by the deed conveyance, as the delivery of the deed was merely collateral to the sales contract and not a fulfillment of its terms. Lawrence v. Cameron Savings and Loan Ass’n, 395 S.W.2d 452 (Mo.1965); Tighe v. Locke, 299 S.W. 105 (Mo.App.1926). It is manifest that the deed was merely collateral to the contract as evidence by the fact that possession of the premises was not surrendered by the plaintiff nor was the final portion of $175,000 of the purchase price paid until the September closing date. Thus, since plaintiff at the time of the loss was contractually liable to the purchasers of the farm property for the damages which occurred, she possessed a substantial economic interest sufficient to support an insurable interest for recovery under her contract of insurance with defendant. See M.F.A. Mutual Insurance Co. v. Gulf Insurance Co., 445 S.W.2d 829 (Mo.1969), holding that a building contractor, without title to property had “an insurable interest” under a fire insurance policy for damages to property during construction based on a contract whereby the contractor assumed risk of loss by fire during construction — a situation akin to this case.

Plaintiff also asserts that the trial court erred in refusing to allow an amendment to the pleadings increasing the amount of the damages to conform to the evidence. Plaintiff argues that she should thereby have been allowed to increase her prayer from $2,467.10 to $4,919.14. We agree with plaintiff’s assertion and find that the amendment should have been allowed in this case. Under Rule 55.33(b) V.A.M.R. amendments to the pleadings to conform with the evidence are to be freely allowed where the presentation of the merits will be subserved and where the objecting party will not be prejudiced in the presentation of his defense. Courts are consistently admonished to be liberal in allowing such amendments. Thomas v. Wolfsberger, 519 S.W.2d 559 (Mo.App.1975). Of course, permission to amend the pleadings is in the sound discretion of the trial court and will not be overturned on appeal unless there is an obvious and palpable abuse of discretion. Nevertheless, “[t]he whole spirit of our present rules of practice is to freely permit amendments to pleadings ‘when justice so requires’.” C. S. v. J. W., 514 S.W.2d 848, 854 (Mo.App.1974).

We believe that the trial court should have granted the requested amendment. Plaintiff sought only to increase the amount of damages to conform with the actual cost of repairs to the farm property. Evidence of these costs had previously been admitted without objection. The nature and extent of damages was delved into, and there was evidence that the repairs made were reasonable and necessary. No new legal theory or issue was to be interjected into the case. Under such circumstances defendant could not have been prejudiced in the proof of his case, because plaintiff still had the burden of proving the reasonableness of the repairs.

The decision of the trial court is reversed and the cause remanded for a determination only on the issue of damages.

SIMEONE, P. J., and KELLY, J., concur.

      . Inasmuch as the plaintiff had not received the full purchase price at the time of the hail storm damage, and absent evidence of any other security for the balance due on the purchase price of $175,000, a vendor’s lien would exist. Causer v. Wilmoth, 142 S.W.2d 777 (Mo.App.1940); Sturdy v. Smith, 132 S.W.2d 1033 (Mo.App.1939); Mollett v. Beckman, 78 S.W.2d 886 (Mo.App.1935). The relevancy of the vendor’s lien to the existence of an insurable interest is that the vendor’s lien creates “an insurable interest in the nature of a similar right in a mortgage.” Mahan v. Home Ins. Co., 205 Mo.App. 592, 226 S.W. 593, 594 (1920).


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    George S. WILE and Retta Y. Akers Wile, Plaintiffs-Respondents, v. Marie E. DONOVAN, Defendant-Appellant.
    No. 10258.
    Missouri Court of Appeals, Springfield District.
    July 2, 1976.

      William D. Hamblin, Brooks & Hamblin, Chartered, Overland Park, Kan., for plaintiffs-respondents.
    John M. Belisle, Morran D. Harris, Osceola, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Plaintiffs sued in equity to have a warranty deed absolute on its face declared a mortgage and to require defendant to convey the subject real estate to plaintiffs upon payment of the sum the court found due. The chancellor obliged plaintiffs as prayed, and after two prior unsuccessful attempts to perfect an appeal [Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974) and 532 S.W.2d 891 (Mo.App.1976)], defendant has now appealed from what we consider to be the final appealable judgment in the cause.

As owners of a 270 acre St. Clair County farm valued at $39,000, plaintiffs were obligated to a bank as evidenced by a note which was secured by a deed of trust. No note payments were ever made. The bank commenced foreclosure proceedings with the sale date set for May 15, 1970. In fine and according to plaintiffs’ evidence (defendant offered none), arrangements were made through defendant’s son for defendant to “loan” plaintiffs sufficient money to pay off their note at the bank and thus thwart the foreclosure. On the day before the sale, plaintiffs executed and delivered to defendant a warranty deed to the farm and contemporaneously therewith signed, as did defendant, the following:

“AGREEMENT
“This agreement made and entered into this 14th day of May, 1970, by and between [plaintiffs] and [defendant] . . . Wit-nesseth:’
“Whereas, [plaintiffs] are the owners of 270 acres in St. Clair County . as hereinafter described, and,
“Whereas, said property is being foreclosed because [plaintiffs] are in arrears on a note payable to the . . . Bank . in the approximate amount of $13,750.00 plus costs, and,
“Whereas, the [plaintiffs] are financially unable at this time to raise funds . to pay the sum due the . . . Bank . and are now in danger of losing said real estate hereinafter described, and,
“Whereas, the [defendant] is willing to pay the . . . Bank . . . the balance due on said note and deed of trust including all costs and fees, now therefore in consideration of the mutual promises and covenants herein stated it is agreed as follows:
“1. The [defendant] shall, prior to Friday, May 15, 1970, pay to the Bank . . . the sum of $13,750.00 plus costs and fees of foreclosure.
“2. The [plaintiffs] shall by warranty deed convey to the [defendant] the following described real estate: .
“3. It is further understood and agreed . that [plaintiffs] shall have until November 15, 1970, within which to repay to the [defendant], the amount paid by the [defendant] to the . . . Bank . . . and the further sum of interest 10% (ten per cent) per annum from and after May 15, 1970 to the date of repayment.
“4. It is further understood and agreed . that in the event the [plaintiffs] repay the sum above mentioned to the [defendant] by November 15, 1970, the [defendant] shall, by warranty deed, convey the above described real estate to the [plaintiffs].
“5. It is further agreed, however, that in the event the [plaintiffs] fail to pay the above sum to the [defendant] by November 15,1970, then the obligation of the [defendant] to re-convey said land to [plaintiffs] shall lapse and the land shall remain the property, free and clear from any claims of the [plaintiffs], of the [defendant] and the considerations previously recited and the covenants herein shall constitute the consideration for the transfer of the aforementioned property from the [plaintiffs] to the [defendant].
“6. It is further agreed and understood that all crops and produce from the aforementioned land shall belong to the [plaintiffs] along with all subsidies or government payments under existing programs, until November 15, 1970.”

Plaintiffs’ evidence further showed that before the payoff deadline date of November 15, 1970, defendant agreed to extend the payoff time for 30 days or until December 15, 1970. However, prior to December 15, 1970, when plaintiffs were ready, willing and able to make payment, defendant and her son refused to give plaintiffs “the payoff figure” because defendant intended to keep the farm.

What Somerville, J., has denominated as the “peripheral legal principles,” “certain ‘white bearded’ legal maxims,” and “basic hard-core principles” applicable to cases where grantors undertake to change deeds absolute on their face into equitable mortgages, are painstakingly collected and documented in Webb v. Harrington, 504 S.W.2d 252, 260-261[1-15] (Mo.App.1973). We have neither the temerity nor the ability to undertake an improvement on what our brother jurist has written, and leave it to the interested reader to peruse Webb for himself. Nevertheless, especially applicable to the instant case is what was quoted and written in Webb, l.c. 261: “ ‘While the courts have applied many tests to disclose the true nature of the transaction, — whether an absolute deed or a mortgage, — the one sure test and essential requisite has ever been “the continued existence of a debt” from the grantor to the grantee in the deed. If there is no debt, the instrument cannot be a mortgage, whatever else it may be.’ . . . The burden rests upon the grantor to prove a binding obligation on his part continuing after the conveyance to repay to the grantee the consideration from which the conveyance sprang, and failure to do so ‘is generally accepted as decisive proof that it (the conveyance) was not meant as a mortgage’ ”.

Plaintiffs attached to and incorporated in their amended petition upon which the cause was tried the “Agreement” above recited. In the pleading plaintiffs alleged that at the time of the conveyance they were indebted to defendant “in the sum of approximately $15,000.00 as evidenced by agreement entered into by plaintiffs and defendant.” And while plaintiffs assumed throughout the trial that the “Agreement” was proof of “a loan” or was (as erroneously referred to by one plaintiff) “the note,” we perceive nothing in that writing which indicates an obligation on plaintiffs’ part to pay defendant anything at any time. The burden was on plaintiffs to prove a binding obligation on their part continuing after the conveyance to repay the defendant the consideration from which the conveyance sprang. “. . . the ‘AGREEMENT’ in no way bound or obligated [plaintiffs] to do anything. [They] could pay or not at [their] whim or caprice. Thus, [plaintiffs by the “Agreement”] did not recognize the ‘continued existence of a debt.’ (Bobb v. Wolff, supra [148 Mo. 335, 344, 49 S.W. 996, 998 (1899)]). The ‘AGREEMENT’ failing, as it did, to impose a binding obligation on [plaintiffs] to pay any amount, is ‘decisive proof’ (Parrish v. McDaniel, supra [358 S.W.2d 32 (Mo.1962)]) that the . . . warranty [deed] [was] not [an] equitable mortgage[.]” Webb v. Harrington, supra, 504 S.W.2d at 263.

“A fact necessary and indispensable to hold a deed absolute on its face to be a mortgage is that the deed, although absolute in form, was in fact given as a mere security for a debt. . . . The existence of a debt is indispensable to the existence of a mortgage. . . . Plaintiff[s’] proof did not establish that the relationship of debtor and creditor existed between [plaintiffs and defendant] after the execution [of the] warranty deed, or that the parties at that time intended that the deed operate only as a mortgage. There is a presumption that an absolute, unconditional conveyance of land is what it purports to be, that is, a deed, . . . and that presumption was not overcome.” Parrish v. McDaniel, supra, 358 S.W.2d at 35[1-5].

In Reilly v. Cullen, 159 Mo. 322, 60 S.W. 126 (1900), we have a situation somewhat similar to the instant case except the agreement executed contemporaneously with the deed showed that the parties intended the deed as a mortgage by reciting, inter alia, the deed was given “to secure to said [defendant] money owed to him by said [plaintiff].” This showed that the purported deed was to secure a loan. No such fact was proven in the present case. While the “Agreement” in this matter may have shown there was a debt at the inception for money paid by defendant to the bank to avoid the foreclosure, the “Agreement” did not provide and plaintiffs did not prove that this consideration survived and continued to subsist as a debt of plaintiffs after execution of the warranty deed to defendant. The “Agreement” could be construed as giving plaintiffs an option to obtain title to the farm if they paid defendant a certain sum of money within the time specified or extended, but it did not impose upon plaintiffs the obligation to pay defendant anything. Whether plaintiffs paid or did not pay to get back the farm was something for them to alone decide, and their failure to pay did not leave them with a continuing debt or obligation.

The facts recited in this opinion and what we have gleaned from reading the record would indicate that plaintiffs, before the expiration of the foregoing “Agreement” as extended, were ready, willing and able to pay the money necessary to obligate defendant to convey the farm to them as defendant had contracted to do, but that defendant, in violation of the “Agreement”, refused to inform plaintiffs of the amount of the necessary payoff or made it impossible for plaintiffs to make the necessary tender. If plaintiffs could sustain their burden of proof in such a matter, it is conceivable plaintiffs may have a remedy via specific performance of the “Agreement” or otherwise. Plaintiffs’ farm, if their proof is accepted, was worth considerably more than what defendant paid the bank (note 1). Where, as here, there is evidence tending to show a plaintiff has rights growing out of the transaction involved, but has misconceived the remedy by bringing an action to have a deed declared a mortgage, an appellate court has discretion in the matter and may remand the cause to permit the petition to be amended, and a retrial of the cause. Wright v. Brown, 177 S.W.2d 506, 511[4] (Mo.1944). In the exercise of our discretion, we reverse the decree and order the cause remanded with directions to allow plaintiffs to amend their petition, if they so desire; or if plaintiffs do not desire to amend within the time to be set and specified by the trial court, to render judgment for defendant.

All concur.

      . The trial court found defendant had paid the bank a total of $14,050.

      . The court nisi held the 10% interest rate was usurious and reduced it to 6%.


author: ANDREW J. HIGGINS, Special Judge.

text:
    Nova FOSTER, successor guardian of the person and Estate of A. A. Anderson, Incompetent, Respondent, v. Opal P. HENDERSON and Willie Pearl Wiyrick, Appellants.
    No. 27309.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Clifford B. Mayberry, Kirksville, for appellants.
    Geoffrey L. Gifford, Gifford & Gifford, Green City, for respondent.
    Before TURNAGE, P. J., and ROBERT R. WELBORN and ANDREW J. HIGGINS, Special Judges.
   ANDREW J. HIGGINS, Special Judge.

Appeal from judgment which set aside warranty deeds of A. A. Anderson to Opal P. Henderson and Willie Pearl Wiyrick on ground that the grantor lacked mental capacity to execute the deeds. Appellants contend the judgment should be reversed “since no clear, cogent and convincing evidence was offered to show that Mr. Anderson was incompetent at the time of the execution of the deeds * * *See Cruwell v. Vaughn, 353 S.W.2d 616 (Mo.1962); Webb v. Heddleson, 327 S.W.2d 101 (Mo.1959). Affirmed.

Alfred Anderson, born in 1893, was a resident of Connelsville, a small town (population 80) eleven miles northwest of Kirks-ville, where he owned two small tracts of land. In late 1970 he sustained an injury to his head in an automobile accident, after which people noticed changes in his behavior. His wife died October 4, 1971, and he was left alone and without immediate family. He suffered from the loss of his wife and this contributed to his aberrational behavior, some of which threatened his personal and financial well-being. Concerned friends secured a medical evaluation which showed as of October 19, 1971, that he suffered from progressive and degenerative arteriosclerosis.

On October 26, 1971, Alfred Anderson executed the deeds in question purporting to convey one of his tracts to Opal P. Henderson absolutely, and the other to Willie Pearl Wiyrick, reserving a life estate to himself. Upon learning of this transfer, Cleetus Wilson, a long-time friend of Mr. Anderson, instituted proceedings which resulted in a declaration on November 30, 1971, that Mr. Anderson was incompetent. Mr. Wilson was appointed guardian of the person and estate of Mr. Anderson December 15, 1971, and he commenced this action in equity January 3, 1972. Nova Foster succeeded Mr. Wilson.

As the successor guardian for Mr. Anderson, Nova Foster had known his ward for approximately eight years and was aware of his ownership of two tracts of land. The tract “south of the road” was Mr. Anderson’s homesite; the other, north of the road, was occupied by Mrs. Henderson. Aside from contacts with Mr. Anderson over the years of acquaintance, Mr. Foster saw him frequently in October, 1971, as the result of Mrs. Anderson’s demise and the attendant funeral services provided by him. As a result of his concern over Mr. Anderson’s apparent incapacity, he assisted in seeking a medical examination, an adjudication of incompeteney and an ultimate residence in a nursing facility. This concern grew not only from the association during the funeral period, but also from a trip by Mr. Anderson to Forest City, Iowa. He was approached in his home on October 13,1971, by Adair County Sheriff Leon Coy, who said he had received a call from the Forest City Police Department advising of the need to dispatch someone to return Mr. Anderson to Missouri. Mr. Foster immediately sent his employee to make the journey to return Mr. Anderson. Upon returning and in the course of later contacts, Mr. Anderson denied that he had gone to Iowa and told Mr. Foster that he had been driven about for many hours via an ambulance from Kirksville Osteopathic Hospital. The purpose of this phantom trip, according to Mr. Anderson, was to create a large ambulance bill. Shortly after this incident, Mr. Anderson was declared incompetent and made a ward of the Probate Court in Adair County, Missouri. At the hearing Mr. Foster indicated an inability on the part of Mr. Anderson to recognize persons.

As a local osteopath engaged in general practice, Dr. Barry W. Gushleff was asked by Mr. Foster and Mr. Wilson to examine Mr. Anderson. The examination was made October 19 or 20, 1971, and consisted of a general physical. Doctor Gushleff talked with Mr. Anderson and noted general disorientation as to time, place, and identity. Mr. Anderson was unaware of the date or the year and was a generally confused person. He did relate that it was daylight and apparently could distinguish between night and day. Other than the subjective impressions formed, Doctor Gushleff noted that he manifested poor lower extremity circulation, accompanying thick toenails and a state of psychosis known as senile dementia. He characterized this condition technically as “senile dementia, cerebroarteriosclerosis, hardening of the arteries of the brain, or old folks’ syndrome.” He generalized the condition as a “slow, degenerating, rotting process.” He conceded that this condition was a fluctuating condition with intermittent periods of exacerbation and remission during which persons who suffer from Mr. Anderson’s condition “will appear to be lucid.” Doctor Gushleff gave his opinion, based upon a reasonable medical certainty, that Mr. Anderson was incapable upon the date of examination to conduct his business or personal affairs and would not have been competent to convey his property on October 26, 1971. Doctor Gushleff noted also that Mr. Anderson referred to his wife as still living some two weeks after her death.

As his first guardian and long-time friend, Cleetus Wilson described dramatic and progressive deterioration of Mr. Anderson’s mental capacities subsequent to the automobile accident in late 1970. Mr. Wilson related numerous incidents suggesting Mr. Anderson was having difficulty relating to reality. On repeated occasions, he inquired about his tax receipts, purchased unnecessary items, became confused in areas of locale long familiar, and luckily escaped serious injury from his cooking procedures. Mr. Anderson wrote checks on a bank just shortly after he had transferred his funds to another community. As a friend and constant associate during October, 1971, Mr. Wilson described the sequence of events preceding the execution of the deeds in issue. Mildred Potter, the daughter of Mrs. Henderson who, in turn, was Mr. Anderson’s deceased wife’s sister, called Mr. Wilson in early October asking if he would take Mr. Anderson to a scrivener, Ollie Blackor-by, an employee of the Bank of Kirksville. She further requested that Mr. Blackorby prepare two deeds, one to Mrs. Potter herself and another to Mrs. Henderson. The trip was made but, absent the descriptions, Mr. Blackorby did not prepare the deeds. While returning from this initial trip, Mr. Wilson cautioned Mr. Anderson about signing any documents. While acknowledging an alleged real estate sale by Mr. Anderson some weeks prior, Mr. Wilson stated unequivocally that Mr. Anderson’s degeneration was not only worsening, but also obvious in the Pall of 1971. Whether as a result of those observations and daily conversations of the repeated denials of signing by Mr. Anderson, Mr. Wilson was of the opinion that capacity to execute deeds was lacking on October 26, 1971. This observation was reinforced by Mr. Anderson’s total disorientation at the incompetency hearing.

Johnny Brown was the source of the “ambulance bill.” He was commissioned to drive to Forest City, Iowa, where he first met Mr. Anderson. When he arrived at the police station, he noted that Mr. Anderson apparently did not know where he was. He returned Mr. Anderson and, on the following day, Mr. Anderson failed to recognize him. He also expressed his belief that Mr. Anderson during the Pall of 1971 lacked the ability to take care of his property.

Gerald True was a grocer in Connelsville and observed the changes in Mr. Anderson after his accident. He would return to his store and repeat a purchase indicating that his deceased wife had sent him for the additional duplicate items. In evaluating this course of observed behavior, Mr. True testified he did not believe Mr. Anderson to be of sound mind on November 30,1971, the date of his incompetency hearing.

Sheriff Leon Coy was instrumental in returning Mr. Anderson to Kirksville from his journey to Forest City, Iowa, and also in obtaining medical attention. He did the latter because he felt Mr. Anderson was incapable of driving his vehicle. During one of his visits, Mr. Anderson related his account of the late night “ambulance trip,” and on another repeated an account of the death of his wife.

Mildred Potter, unrelated to Mr. Anderson, was a niece of Mr. Anderson’s deceased wife, mother of one of the grantees, Willie Wiyrick, and the daughter of Mrs. Henderson, the other grantee. She testified generally to many services performed by herself, her son, and her mother for Mr. Anderson over the years, ranging from assistance with errands to providing needed companionship. Her mother, Mrs. Henderson, had resided for a number of years in a house located on property owned by the Ander-sons at a rental of $25 per month. According to Mrs. Potter, numerous discussions were had concerning this property; the desired application of the rental beyond normal lessor’s return was not clearly stated. Although instrumental in obtaining assistance in preparing the two deeds, she recalled nothing about the date of the deeds. Apparently, she and her son took Mr. Anderson to Marian Hunt, an abstractor, for the deed preparation. This was subsequent to the effort to obtain the services of Mr. Blackorby. After Mrs. Hunt prepared the conveyances, two $1.00 bills were exchanged to the benefit of Mr. Anderson. Mrs. Potter paid $1.00 as agent for her mother, and Mr. Wiyrick paid $1.00 for his property. Mr. Anderson signed the deeds in Mrs. Potter’s presence and then while he waited in the car with his nephew by marriage, the deeds were taken to the recorder’s office. These events occurred on October 26, 1971, in Kirksville. She further related that during the process Mr. Anderson stated that he desired to deed one tract to Mrs. Henderson because she had paid rent equivalent to a purchase price in furtherance of some sort of arrangement. Insofar as his homesite was concerned, he indicated that he hated to see someone take it away so he would give it away to Mr. Wiyrick and retain a life estate. This reservation was in response, according to Mrs. Potter, to advice given by Marian Hunt. Subsequent to the deeds’ preparation, Mr. Anderson, according to the observations of his niece by marriage, kept his house clean and generally cared adequately for his needs. He was forgetful at times, but his reported bizarre behavior was not, in her opinion, more indicative of incompetency than any other person’s behavior. She further attributed any unusual behavior to grief over his wife’s death. He was, in her opinion, capable of managing his own affairs at the time of the deed execution. She had suggested he reside with her in her own home. After his placement in the nursing home, Mrs. Potter stated she did not visit him because she was afraid he would want to come home with her. She did, however, call once to see about his status.

Marian Hunt, as the abstractor and scrivener who prepared the deeds, testified to an acquaintance with Mr. Anderson for several years. According to her recollection of the events of October 26, 1971, Mr. Anderson in the company of some other persons requested the preparation of some deeds. He assisted her in determining the exact description of the tracts in question. She recalled the exchange of some checks and believed monies amounting to $400 or $500 moved. There is some suggestion that this may have been incident to an earlier transaction.

Willie Wiyrick assisted Mr. Anderson around his home on occasion. He is related to Mr. Anderson by marriage and is the grandson of Mrs. Henderson. He accompanied Mr. Anderson and Mrs. Potter on the second occasion the deeds were sought. He did so in response to Mr. Anderson’s telling him of hearing about someone’s efforts at taking his farm. When asked about the source of his fear, Mr. Anderson could not remember who was trying to take his land but did offer a solution. He would deed it to Mr. Wiyrick for safekeeping. Mr. Wi-yrick did not suggest any reservation.

Appellant asserts that the foregoing shows a “sharp conflict in the evidence on the issue of mental capacity.” The trial court resolved the conflict; and on this review, “upon both the law and the evidence * ⅞ * [d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01.3(a)(b), Y.A.M.R.

Close friends of Mr. Anderson, Nova Foster and Cleetus Wilson, described his capacities and actions as they existed in the Fall of 1971, and were of the opinion that he was incompetent to execute deeds on October 26, 1971. These observations were reinforced by the observations of Mr. Brown who made the trip to Iowa to return Mr. Anderson to Missouri, and by his grocer, Mr. True. Although conflicting in many respects, to a lesser extent Mr. Anderson’s aberrational behavior was confirmed by defendant Willie Pearl Wiyrick and by Mildred Potter, daughter of defendant Opal P. Henderson. Testimony from family, social, and business relations with an opportunity to observe conduct, habits, and mental peculiarities is entitled to great weight. Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035, 1066 (1907). Such opinions and observations were confirmed expertly by Doctor Gushleff who gave his opinion that Mr. Anderson was not competent to convey his property on October 26,1971, the date upon which the deeds were purportedly executed. The expert’s opinion was in turn confirmed by the probate court by its declaration on November 30, 1971, that Mr. Anderson was an incompetent and in need of a guardian for his person and property.

Such evidence is sufficient to satisfy the burden of showing that A. A. Anderson, on October 26,1971, lacked mental capacity to execute the deeds in question. For a similar case, see Gruetzmacher v. Hainey, 373 S.W.2d 45 (Mo.1963) and cf. Webb v. Heddleson, supra, where the court was not compelled to set aside deeds because there was no proof of lack of capacity on the date they were executed.

Appellants rely on Cruwell v. Vaughn, supra, where a judgment setting aside deeds was reversed. It differs, however, in that the grantor, Andrew Cruwell, discussed the transaction with the scrivener, an attorney he had known for 15 years, and the evidence concerning the grantor’s condition on the day the deeds were executed indicated he fully understood the transaction and was of sound mind at the time. Peterein v. Peterein, 408 S.W.2d 809, 814 (Mo.1966).

Judgment affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    MID-CONTINENT NATIONAL BANK, Plaintiff-Appellant, v. Dorland DeSHONG, Defendant-Respondent.
    No. KCD 27417.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      James E. Campbell, Tom J. Helms, Kansas City, for plaintiff-appellant.
    Robert B. Randolph, St. Joseph, for defendant-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

An appeal involving propriety of instructions in a suit on a note with a counterclaim by the maker that the holder of the note negligently failed to timely dispose of stocks held as collateral.

A jury verdict of $8,000 was returned in favor of the defendant on the counterclaim.

The following facts were stipulated, and the stipulation was read to the jury by the trial judge.

On January 20, 1969, defendant, Dorland DeShong, borrowed from plaintiff, Mid-Continent National Bank, the amount of $73,750.00 at 7¾% per annum. This loan was evidenced by a note and secured by 100 shares of stock in Rieke Corp. (Rieke), 100 shares of stock in Security Equity Fund, Inc., (SEF), and 40 shares of stock in Missouri Pacific Railroad (MoPac).

On March 3, 1969, three days before the note came due, defendant was placed in jail as a result of an incident which resulted in the death of his wife. Thereafter, defendant was confined in jail and two state hospitals. The date of his release does not appear in the record.

On March 6, 1969, the due date of said note, the principal and interest owing to plaintiff totaled $74,474.07. Thereafter, plaintiff liquidated the collateral and applied the proceeds to accrued interest and principal as follows:

3/14/69 and 3/25/69 — 100 shares Rieke and 100 shares SEF — net proceeds of $5,882.50.
5/15/69 — stock split SEF — net proceeds of $1,452.51.
10/14/70 — 40 shares MoPac — net proceeds of $33,117.50.
12/30/69 — a $200 dividend on the MoPac shares was received and applied.

Based upon these sales and receipts, the plaintiff bank stipulated principal and interest due at the time suit was filed totaled $42,811.08.

In March of 1969, the asking price for the MoPac shares was $2,000 per share and the bid price was $1,825 per share. In 1969, the high sales price was $1,950 per share and the low sales price was $1,220 per share. In 1970 the high sales price was $2,220 per share and the low sales price was $650 per share. These shares were sold in October of 1970 for $830 per share.

Based upon the stipulated facts, if the bank had sold this collateral in March of 1969, it could have realized between $73,000 and $80,000.

Plaintiff’s pleaded theory of recovery was that the note balance plus accrued interest less credits for the sale of collateral was $42,811.08.

Defendant’s pleaded affirmative defense was that plaintiff was negligent in not selling the collateral and that if it had been sold in March, 1969, the deficiency would not have occurred.

Thus, it was claimed a sale of the MoPac stock of $76,000 (approximately the average bid and asked prices in March) and the actual sales price of the other stocks, $7,379.51, would have resulted in a setoff of $83,379.51 against the March 6th balance of $74,474.07.

Based on the same claim of negligence, the counterclaim pleaded damages for the difference of $8,905.44.

Defendant’s claim of negligence in both his affirmative defense and counterclaim are based upon evidence that plaintiff was directed to sell the MoPac shards in March, 1969, and at all times had the authority to do so under the loan agreement, and failed to do so without reasonable justification. A representative of defendant, his son-in-law, requested that plaintiff liquidate the MoPac shares in March of 1969. The testimony at trial is unclear as to a justification for failing to liquidate promptly.

Some effort was made to indicate that the plaintiff bank believed the defendant was “attached” to the MoPac shares and also it was in evidence that defendant had not communicated personally with the plaintiff bank. As plaintiff bank notes in its brief, the “live” evidence was very limited.

The plaintiff did not squarely controvert the claim of defendant that the son-in-law had notified the bank of defendant’s desire that the collateral be sold. It is conceded that the bank had the right and the power to sell the collateral in default. The flavor of the bank’s evidence on its failure to

make a timely disposition of the collateral in the face of a falling market is shown by a short verbatim excerpt from the transcript of evidence being a portion of the testimony of one of the officers of the bank.

“Q Was it common practice back in 1969 at the Mid-Continent National Bank to check the market every day on all securities pledged as collateral?
A No, sir.
Q How often would that have been done?
A Well, back in 1969, as I recall, as the market pressures that were on at that time, we were probably checking every week or two, because the market looked rather dismal at that time.
Q You are not suggesting to this jury, are you, Mr. Kuklenski, that you were unaware of the fact that the Mo-Pac stock was declining in value?
A Definitely not.
Q You knew that?
A Certainly.
Q In spite of that, you did hang on to the stock?
A That is correct.”
* * * * * *
“Q Isn’t it a fact that you refused to sell Mo-Pac simply because you wanted the interest to run on the note? Is that what the discount committee decided?
A No, sir.
Q What had they decided?
A They decided not to sell the stock at that time.
Q Why?
A There were a lot of factors that entered into it.
Q What factors?
A For one thing, we had no contact with Dr. DeShong. We knew the circumstances, how the loan originated originally, what his feeling was toward the Mo-Pac stock, what he felt it would do in the future, and we took all those things in consideration.
Q That was your sole reason for refusing to sell Mo-Pac?
A That is right; it was the committee’s decision.
Q You were on the committee?
A Yes.”

One issue, raised in the argument needs resolution before dealing with the issue raised by plaintiff as to the instructions. During argument statements were made by counsel as to the verdict returned which indicated the verdict was returned upon the counterclaim alone. Upon questioning as to the judgment, the transcript was examined and found not to contain the judgment in violation of the mandatory provision of Rule 81.14(a). The judgment has been obtained, and it is a judgment against plaintiff on its suit and a judgment for defendant in the sum of $8,000. The jury verdict is as follows:

“We, the jury, find the issues in favor of the defendant and against the plaintiff and we assess defendant’s damages at $8,000.00. Signed Thelma M. King, Foreman.”

The forms of verdict given the jury permitted a verdict for plaintiff on the plaintiff’s claim under the note, a verdict in favor of defendant on the counterclaim and a form which permitted a finding against both plaintiff and defendant. The jury was not given a form of verdict converse to a finding for plaintiff on its note theory, i. e., “If you find the issues against plaintiff, your verdict shall be in the following form, etc.” Nor was such a converse offered with respect to the defendant’s counterclaim. Thus, under the forms of verdict, the jury could find for plaintiff, for defendant or against both. No instruction or form of verdict was offered on the theory of setoff pleaded by defendant. Thus, to be initially determined is the validity of the judgment which the trial court entered. The verdict does not as noted contain a finding against plaintiff on the basic pleaded and submitted issue of a deficiency on the note. The issue, therefore, is the propriety of the trial court’s construction of the verdict as importing a finding against plaintiff and supporting the judgment entered.

In determining the import of the verdict to support the judgment, the pleadings, evidence and instructions are considered and an attempt made to determine the intent of the jury expressed in the verdict. Chuning v. Calvert, 452 S.W.2d 580 (Mo.App.1970).

So considered, the entire record in this case shows that the plaintiff sought to recover the amount of the note deficiency and defendant sought to recover damages for improperly delaying the sale of the collateral. Thus, on the theory of plaintiff’s verdict-directing instruction which required an express finding of a sum being still due of $42,811.08, the jury could only have returned a verdict for plaintiff in the amount of $42,811.08. In the absence of a finding of negligence in failing to properly sell the collateral, the only verdict the jury could have returned under the stipulated facts and the instruction was one for $42,811.08.

On the other hand, the defendant’s verdict-directing instruction on the counterclaim would have permitted the jury to find that the sale of the collateral at its best price after default would have brought a high of $87,397 and a low of $80,399 and that after deducting the amount admittedly then due of $74,474.07 would have required the jury to find for the defendant in the range of $5,925 to $12,905 as they might find on the issue of value. The jury, of course, was entitled to find a verdict within the range of the values stipulated. DaArmon v. St. Louis, 525 S.W.2d 795 (Mo.App.1975); Jackson County v. Hesterberg, 519 S.W.2d 537 (Mo.App.1975). Provided, of course, that they had found negligence.

Obviously, the verdicts authorized by the two verdict-directing instructions would be inconsistent if both had been returned. In those circumstances, the inference to be drawn on the jury verdict is that the jury resolved the other issue in the case and found against the plaintiff. Downing v. Dixon, 313 S.W.2d 644, 652 (Mo.1958).

No doubt can exist that the jury verdict was induced by the failure to submit forms of verdict permitting the disposition of all of the issues. Further, the forms of verdict are not referenced to the verdict-directing instruction by number, and the jury may well have felt that the language in the form of verdict used by them embraced a finding against plaintiff on its claim.

Plaintiff bank on this appeal raises only questions relating to two instructions, the burden of proof instruction and the defendant’s so-called converse instruction.

As to the converse instruction, the plaintiff bank urges that it was erroneous because (1) it does not converse any element of plaintiff’s submission; (2) it is an affirmative defense instruction in improper form; and (3) that the incorporation by reference of the defendant’s counterclaim instruction as defining the negligence which would defeat plaintiff’s recovery in effect required the jury to find for defendant on the counterclaim in order to defeat plaintiff’s claim.

Defendant counters by asserting that if the “converse” is error, it was invited by the failure of the plaintiff to add a “tail” to the principal instruction on the note referring to the affirmative defense which defendant claims was embodied in the converse.

There can be no question the instructions in this case are erroneous both in commission and omission. Plaintiff asserts and defendant does not controvert the principle that error in instruction traceable to a violation of the principles of MAI constitutes error which is presumed to be prejudicial and the burden is on the party seeking to uphold the verdict to demonstrate non-prejudice, the question of prejudice to be judicially determined. Brown v. St. Louis Public Service Co., 421 S.W.2d 255 (Mo. banc 1967); Nu-Way Services, Inc. v. Mercantile Trust Company, 530 S.W.2d 743 (Mo.App.1975).

Defendant argues strenuously that the error, if any, was not prejudicial and that considering all the instructions together and the evidence, the verdict is for the right party and should be affirmed in accordance with the principle that a judgment should not be reversed except for error “which materially affects the merits of the action.” Rule 84.13(b).

The crux of plaintiff’s argument that the instructional error was prejudicial is its insistence that the improper “converse” required the jury to find for defendant on the counterclaim in order to find for defendant on the affirmative defense issue. This because the “converse” incorporated by reference the element of negligence contained in the verdict-directing instruction on the counterclaim.

Thus, plaintiff argues it was deprived of a “dogfall” because the jury could have been misled into believing they had to return a verdict on the counterclaim before they could find against plaintiff on the principal suit on the note.

The difficulty with the argument is that a “dogfall” was not possible under the stipulated and admitted facts and the instructions given.

Only two issues were for the determination of the jury under the evidence and the instructions — “negligence” and “value.” If the jury found against defendant on negligence, the verdict of necessity would have to be for the plaintiff on the deficiency since the fact of such a deficiency was stipulated.

As to value, if the jury found no negligence, value was immaterial. If they found negligence, it was for them to say what the value of the MoPac stock was when it should have been sold. The stipulation as to range of value at any date other than the month of March, 1969, is so skimpy that no evidence upon which to base a finding of value for any specific period or point in time other than the month of March exists in this record. The stipulation was that the high sales price for 1969 was $1,950 per share, and the low sales price was $1,220 per share. So far as the stipulation went, the low in price of MoPac stock could have occurred prior to default. The high sales price or the low sales price of stock may occur only once a year or at various times during a year. There was simply no evidence that would have permitted the jury to find that the value of the collateral just equalled the amount due on the note at a specific time and thus permit the jury to find against both parties. This because the only evidence as to value of the stock at any time other than March of 1969 was entirely unrelated to any specific period of less than a year. It would have been pure speculation for the jury to have concluded upon the basis of this evidence that a sale at any other time than in March of 1969 would have exactly equalled the amount due. The whole thrust of defendant’s theory was that plaintiff was negligent in not disposing of the collateral in March of 1969. The jury, with commendable common sense despite the confusion engendered by the evidence of value and the instructions, found a proper verdict.

The instant case is analogous to Commercial National Bank of Kansas City, Kansas v. White, 254 S.W.2d 605 (Mo.1953). In that case, defendant made the same substantive complaint that plaintiff makes here, that the instructions did not permit a “dogfall.” In ruling this contention adversely, the court said (1.c. 608):

“Either plaintiff was entitled to a verdict for the undisputed balance on the note or defendant was entitled to have refunded the payments credited on the purported indebtedness evidenced by the note. Both parties could not win; neither could both parties lose. Clearly, a finding for one would necessarily include a finding against the other. It all depended on whether defendant paid $1,200 or $12,000 for the cashier’s check dated December 31, 1946. A verdict against plaintiff on its petition and against defendant on his counterclaim was not authorized under the law as applied to the facts of the case.”

As to plaintiff’s complaint on the burden of proof instruction, plaintiff urges it is erroneous by reason of a reference to the counterclaim instruction by number instead of the form suggested in MAI 3.01 notes on use which counsels the insertion of the number of the affirmative defense instruction. The instruction correctly states the law applicable to the respective burdens of proof of the parties, despite the deviation from MAI, and in view of the fact that the only real issues for determination of the jury, to-wit: negligence and value, were required findings in the numbered instruction referred to the error could not have been prejudicial.

In this case, despite the erroneous instructions, the jury rendered a proper verdict within the evidence, and it should be and is affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    Jon R. PLAAS et al., Respondents, v. George W. LEHR et al., Defendants, and Norwood Development Co., Inc., Appellant.
    No. KCD 27546.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Richard A. King, Constance, Slayton, Stewart & King, Independence, of counsel, for appellant.
    Burrus & Gough, Rufus Burrus, Independence, Bernard Craig, Levy & Craig, Kansas City, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

This case involves an attempt by the appellant (hereafter Norwood) to obtain rezoning of a tract of land consisting of approximately 150 acres located at the southwest corner of the intersection of Colborn and Howard roads in an unincorporated portion of Jackson County, Missouri. The application was sought under the provisions of the Zoning Order of Jackson County, Missouri, adopted June 20, 1960, before the effective date of the present form of Charter government in the county. The land in question was zoned as a District D (agricultural), and Norwood sought rezoning of various portions thereof to Districts A (first dwelling house-single family dwelling), B (second dwelling-duplexes), C (multiple house-apartments), and F (general business).

Under the Zoning Order, an initial hearing on Norwood’s application was had before the Jackson County Planning Commission on October 26, 1972, and that body made its unanimous finding and recommendation that the entire tract be rezoned for District A (first house-single family) use. Norwood filed its petition for review to the Jackson County Court, sitting as the Board of Zoning Adjustment, where the matter was considered on December 7, 1972, which body granted the rezoning of the various tracts to Districts A, B and C, but denied the requested rezoning to District F (general business). Thereupon, the respondents (hereafter objectors) sought and obtained review in the Circuit Court of Jackson County, Missouri where the matter was presented on August 7,1974, and that court did on August 15, 1974 reverse the decision of the former Jackson County Court for the reason that its order granting rezoning “is unsupported by competent and substantial evidence upon the whole record and is arbitrary and capricious.” From this judgment, Norwood appeals to this court.

Norwood seeks reversal of the judgment below upon two grounds. First, it asserts that the court below improperly substituted its judgment for that of the County Court; and second, that the proceedings before the County Court show that its rezoning decision was supported by competent and substantial evidence and was not arbitrary and capricious. Norwood’s Points Relied On in its brief fall far short of even a token compliance with Rule 84.04(d), Rules of Civil Procedure, providing that appellant “concisely” state “what actions or rulings” of the court below “are sought to be reviewed and wherein and why they are claimed to be erroneous, * * *.” Dismissal of this appeal would be warranted for this reason. However, because of the importance of this proceeding to the proper and orderly development of this area of Jackson County and the present and future effect of final action herein upon the present and future living conditions of residents, the drastic action of dismissal will not be followed.

Looking first to the basic -purpose of the zoning laws and procedures here involved:

In 1959, the Legislature adopted statutes authorizing county courts in counties of the first class not having charter forms of government to adopt comprehensive zoning plans. Chapter 64, RSMo 1969. The avowed purpose of this authority was to promote the health, safety, morals, comfort or general welfare; to conserve and protect property and building values; to secure the most economical use of the land; and, to facilitate the adequate provision of public improvements in accordance with a comprehensive plan. Section 64.090(1), RSMo 1969; preamble to Zoning Order of 1960, Jackson County, Missouri.

Even before such legislation and the adoption of such Zoning Order, zoning procedures were directed toward those very purposes. State ex rel. Cooper v. Cowan, 307 S.W.2d 676, 679[5] (Mo.App.1957), and cases cited therein. Zoning legislation and amendments thereto, and rezoning orders, must bear substantial relation to the furtherance of these purposes. State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934, 937-938[3, 4] (1951); Strandberg v. Kansas City, 415 S.W.2d 737, 745[13] (Mo. banc 1967); Schell v. Kansas City, 360 Mo. 27, 226 S.W.2d 718, 720[3] (1950); Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409, 411[8] (1937).

The scope of judicial review in zoning matters is limited. Upon proper presentation of the questions, the reviewing court may determine, among other things, whether the action of the county zoning authorities was “unsupported by competent and substantial evidence upon the whole record” or “is arbitrary or capricious”. Article V, Section 22, Constitution of Missouri; Section 536.140 RSMo 1969; Rule 100.07, Missouri Rules of Civil Procedure; State ex rel. Cooper v. Cowan, supra, at l.c. 679[3]; Rosedale-Skinker Improvement Assn. v. Board of Adjustment, 425 S.W.2d 929, 936[8] (Mo. banc 1968) and cases cited therein. A reviewing court may not, however, substitute its judgment for that of the zoning authority. Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, 627-628[2, 3] (banc 1953).

Implicit in this whole concept of comprehensive zoning is the principle that one seeking a change or a re zoning for the use of land must bear the burden of presenting competent and substantial evidence of a public as well as a private need therefor. General welfare considerations cannot be disregarded.

The record of the hearing of October 26, 1972 before the Jackson County Planning Commission; of December 7, 1972 before the Jackson County Court, sitting as the Board of Zoning Adjustment; of August 7, 1974 before the Circuit Court; and, all exhibits introduced into the records are lodged with this court. Each has been carefully reviewed, as have the briefs of the parties, and the conclusion is inevitable that Nor-wood failed to meet its burden and that the judgment of the court below reversing the order of the Jackson County Court should be affirmed.

A detailed review of this record would serve no useful purpose. It is sufficient to summarize what was offered in support of the rezoning application.

The only testimony under oath which appears to have been offered before the Planning Commission was that of Mr. Don Johnson, who described himself as a “certified engineering technician” associated with the firm of Hugh B. King and Associates, professional engineers, and who testified as to operation of the originally proposed (then abandoned for a septic tank system) sewage treatment facility in connection with the development. Although the president of Norwood was present, he did not testify. Also, a plat was offered of the land sought to be rezoned. Neither Johnson’s testimony nor the plat constituted “competent and substantial” evidence that the rezoning sought would fall within the purpose of the zoning concept above discussed.

The transcript of the Planning Commission hearing was before the County Court, in its review proceedings, and before the Circuit Court, but no further testimony was offered by Norwood.

Mr. Richard Epstein, the attorney for Norwood, made somewhat detailed statements to both the Planning Commission and the County Court. The record is not clear as to whether or not Epstein was sworn as a witness before the Commission, but it is clear that he was not sworn as a witness before the County Court. He was not shown to be a qualified expert in any field relevant to the rezoning application, and he openly stated to these tribunals that his presentation was in the nature of a “summation”. No proposed covenants or restrictions as to the housing and business development reflecting detail as to size of lots, structures, etc. were introduced by Norwood at any level of these proceedings. Only the statements of Counsel Epstein bear upon the vital areas for zoning considerations. It cannot be challenged that the unsworn statements of counsel, or even the sworn statements in areas of expertise for which expert qualifications are not shown, cannot be considered as “competent and substantial” evidence of the facts covered. State ex rel. Horn v. Randall, 275 S.W.2d 758, 763-764[7—9] (Mo.App.1955); State ex rel. Cooper v. Cowan, supra, at l.c. 677[1].

On the contrary, the opponents to the Norwood rezoning application produced an abundance of sworn testimony (with emphasis upon the impracticability and health hazard incident to the proposed septic tank sewage disposal) that the purposes of the zoning laws would not be served by Nor-wood’s proposal.

The action of the Jackson County Court, sitting as the Board of Zoning Adjustment, rezoning the property involved, was not supported by competent and substantial evidence and was arbitrary and capricious, and the judgment of the court below, setting aside the rezoning order of December 7, 1972, is, therefore, affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    ESTATE of Ray F. PEARL, Appellant, v. DIRECTOR, MISSOURI STATE DIVISION OF WELFARE, Respondent.
    No. KCD 27615.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      James Gramling, Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellant.
    Robert R. Northcutt, Chief Counsel, Paul T. Keller, Counsel, Missouri Division of Welfare, Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

This action is to review affirmance by the circuit court of an order of the Director of the Missouri State Division of Welfare which denied old age assistance benefits to Ray F. Pearl. It was found by the Director that the claimant had available resources compatible with decency and health and was not in need according to the statutory prescription of § 208.010, RSMo 1969, for public assistance.

The claimant Ray F. Pearl, an elderly paralytic at the commencement of the proceedings, died during thé hearing and in due course his surviving spouse, Opal Pearl, was nominated the real party in interest. The claim of his estate, therefore, is limited to retroactive benefits from June 1972, when application was made, through December of 1972, when he died.

The denial of assistance was based on Rule 13 adopted by the Division of Welfare which promulgates:

When an applicant or recipient of Old Age Assistance . . . owns real property which is not furnishing shelter for him, and its . current market value is . more than $2,000 if owned by a married person living with spouse, it shall be considered a resource and the claimant will not be eligible for assistance on the basis of need.

There was evidence that the claimant and his wife owned two vacant lots. These were appraised by the Department of Welfare to have the current market value of $2,200. On this testimony, the Director found that the claimant had an available resource and thus was not in need of public assistance. The claimant disputes the competency of the appraisal evidence and the validity of the order which issued on it.

The property in contention had been purchased by the claimant and his wife as homesites. The first parcel, a lot with a front of 35 feet and depth of about 132 feet located at 4904 Montgall, was acquired in 1957 for $650. For some reason, they found that site unsuitable and abandoned their purpose to build there. About ten years later, they purchased another lot for $1000, a 40 foot frontage with a depth of about 106 feet, located at 31st and Oakley, but that lot also remained vacant. In the intervening years, the Pearls attempted to divest themselves of the property but were unable to sell it even for the $400 they were willing to accept. Then, several weeks before the hearing they once again attempted to sell the Oakley lot, this time to the couple from whom they had purchased it for $1000, but did not do so when they received an offer of only $100.

The claimants presented the testimony of Ray Powell, real estate broker and appraiser. He described the municipal zoning regulations for home construction to prescribe a minimum lot frontage of 50 feet and a total land dimension of 5000 square feet. These were also the basic requirements for an FHA home building loan. These conditions could not be met by either lot unless combined with an adjacent property, thus neither the Oakley nor Montgall property enjoyed a highest and best use for residential purposes.

As to the Oakley property, numerous vacant lots of comparable dimension have been sold through the Land Trust for about $150; some of them were acquired by the witness himself. No less than 25 other vacant tracts have remained unused and inactive for a number of years. The Oakley lot was of no commercial value because the size was insufficient and the zoning adverse. He accorded a fair market value of $100 to the property.

The Montgall property, of comparable dimension as the other, suffered from even additional market disadvantages. Vandalism was rampant in the area and the lot was in the path of a proposed freeway and subject to a partial taking. The threats of wanton destruction by vandals and the taking by condemnation would tend to discourage construction loans for the property. In the judgment of the witness the condemnor would be willing to pay 25 cents per square foot on the eventual partial taking of the lot, but an immediate purchaser — for whom the venture would be speculative — would be expected to pay only a fraction of that amount. The witness attributed a fair market value of $100 to $150 to the property-

The value evidence of the Division of Welfare was given by the testimony of appraiser Fred L. Hunt. He had inspected the Oakley and Montgall lots and by means of the comparable sales method, arrived at a value of $1,200 for the Oakley lot and $1,000 for the Montgall property.

It was the opinion of appraiser Hunt that the highest and best use of both the Oakley and Montgall property was for residential purposes, although there was some possibility of commercial use for the Oakley parcel. He conceded that the lots did not comport with the current municipal zoning regulations for residential use, but surmised that since the plats preceded the current regulations, building permits would not be refused.

Despite this testimony, the written report of appraisal filed by Hunt with the Division of Welfare and received as an exhibit in the cause explicitly remarks that “[cjommercial use for subject [Oakley lot] is very speculative due to its small size”. It is also plain from that exhibit that of the three properties used as comparable sales for the derivation of the value of the Oakley lot, two were of improved properties, and the other a vacant lot with a frontage of 98 feet.

The market value of $1000 attributed by the appraiser to the Montgall lot was based on a comparison with three unimproved lots with frontages of 84 feet, 99 feet and 42 feet respectively. All three involved sales about six years before the litigation and none was a property in the path of the South Midtown Freeway.

The opinion of value tendered by the Division of Welfare on both properties rested on the assumption of the appraiser-witness that the Pearls would not be denied a permit for residential construction on the lots. This opinion was tempered with the concession that he knew of no instance within recent years of a residence built within the city on a property with a frontage of less than fifty feet.

The scope of review in such cases is to determine whether the findings and decision of the Director are supported by competent and substantial evidence upon the whole record and are otherwise authorized by law. Hill v. State Department of Public Health and Welfare, 503 S.W.2d 6, 10[2] (Mo. banc 1973). Substantial evidence within this reference means evidence from which the trier of fact may harmoniously find the issue. If the inference drawn requires the assumption of facts beyond the record, the decision is not supported by substantial evidence. Davis v. State Department of Public Health and Welfare, 483 S.W.2d 775, 777[1, 2] (Mo.App.1972).

The market value of a parcel of property may be estimated according to the uses for which it is suitable, with due regard to existing business or community wants, or such as may be reasonably expected in the immediate future. This means only that the highest and best use to which the property is adaptable bears as an element of present value. But a mere possible or imaginary use does not tend to establish market value and remains speculative on that issue. Union Electric Company of Missouri v. McNulty, 344 S.W.2d 37, 40[4] (Mo.1961).

The character and market value of a tract of land may be shown by comparison with the condition and value of similar nearby property. The comparability of other properties depends not only on their proximity in time but also upon similarity in location and the uses to which the properties may be adaptable. City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 856[5] (banc 1935). It is for the trier of fact to determine whether the parcels compare sufficiently to bear on the issue of value; where no reasonable basis for comparison exists, of course, there is no competent proof of value. City of St. Louis v. Vasquez, 341 S.W.2d 839, 850[26, 27] (Mo.1960).

The denial of public assistance to the Pearls was on the determination that they had available resources in excess of $2000. That finding rested on the evidence of appraiser Hunt who gave the opinion that the Oakley and Montgall lots had a $2200 market value for residential use. The opinion was formed by comparison with sales of improved residential property and with lots of sufficient frontage [save one discussed infra ] to comply with municipal regulations for home construction. This evidence of comparable sales was not competent to prove the value of the Pearl lots for two reasons.

The first of the reasons: Our law considers vacant land and improved lots dissimilar and the market value of one cannot be derived from a comparison with the market value of the other. State v. Galeener, 402 S.W.2d 336, 342[9] (Mo.1966); 85 A.L.R.2d 139, Anno.: Real Property — Value —Evidence. A cognate principle holds that improvements ordinarily have no market value separate from the land. Nichols, Law of Eminent Domain, § 13.11. Improvements affixed to the land become part of the realty, thus the issue is the market value of the land with the buildings and structures affixed. Accordingly, it is improper to determine the value of the improvements separate from the value of the land. City of St. Louis v. Turner, 331 Mo. 834, 55 S.W.2d 942, 944[1] (1932); 1 A.L.R.2d, Anno.: Eminent Domain — Valuation as Unit. The law disfavors such separate computations because they are theoretical, not fairly relevant on market value, and tend to confuse on that issue. Nichols, Law of Eminent Domain, § 13.1; Forest Preserve Dist. v. Alton R. Co., 391 Ill. 230, 62 N.E.2d 701, 703[4, 5] (1945). The appraiser for the Division of Welfare estimated the value of the vacant Oakley lot by resort to comparisons with two lots improved by structures, by subtraction of the supposed value of the structures from that of the lots — a formula the law does not allow. To the extent the opinion of value of the Oakley lot rests on such calculations, it rests on evidence clearly incompetent.

The second of the reasons: All the evidence was that the municipal and FHA regulations approved residential construction only on a lot with minimum frontage of 50 feet and total dimension of 5,000 square feet. Each of the vacant lots [save one] used by the Welfare appraiser for comparison was at least 84 feet in frontage— thus enjoyed a highest and best use for residential construction — but was dissimilar in physical characteristic and adaptability to the Oakley and Montgall properties. State v. Galeener, supra, l.c. 342[9]; City of St. Louis v. Vasquez, supra, l.c. 850[26, 27]. Of the six properties used by the Welfare appraiser to derive the values of the Pearl lots, only one — a vacant lot on Walrond with 42 front feet but unspecified depth— did not meet the minimum dimension requirements of municipal and FHA residential standards and thus was similar in essential physical characteristic and adaptability to the Montgall property to which it was compared.

The opinions of value tendered by the Division of Welfare rested on the assumption of their appraiser-witness that the Pearls, whose lots were platted before the imposition of the frontage requirement for residential construction by municipal legislation, could not be legitimately required to conform. In the words of witness Hunt: “[TJhese were platted [before the imposition of the 50 foot frontage requirement] I understand that they legally cannot refuse a building permit . [Y]ou are a lawyer, you ought to know more about that than I do ... [TJhere is always some arguments to that but I am appraising on the basis that they can get a permit and I firmly believe that they can. They may have a little trouble and may have to go to bat, but I think, in my opinion, they can. From all the information I get from the Zoning Commission, they can get it.”

We recognized in State ex rel. State Highway Commission v. Carlson, 463 S.W.2d 74, 78 (Mo.App.1970) that our jurisprudence accepts the way of the marketplace in the determination of land value. It recognizes that an ordinarily prudent man gives account to hearsay information to arrive at the market value of property he is about to purchase. Accordingly, hearsay and best evidence rules are not applied to prevent an expert witness from giving the basis of his opinion of value. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d 20, 24[1, 2] (Mo.App.1964); 12 A.L.R.3d, 1065, § 2[2]. Anno.: Hearsay — Land Value — Other Sales. This is so because ordinarily the facts given by an expert in evidence as the basis of his opinion of value come with sufficient mark of trustworthiness to justify relenting from the traditional rules of evidence. State ex rel. State Highway Commission v. Carlson, supra, l.c. 78; United States v. 5139.5 Acres of Land, etc., 200 F.2d 659, 662[8] (4th Cir. 1952). Within this prescription, it is hearsay of facts which is acceptable, not hearsay as to law. City of St. Louis v. Kisling, 318 S.W.2d 221, 225[7, 8] (Mo.1958).

The only evidence which supports the value opinion of expert Hunt is not a conclusion of fact but a conclusion of law: that because of the priority of the plats the Pearls could not legally be refused a building permit by the municipality. This evidence was not probative of market value. Thus, none of the evidence given by the Division of Welfare was competent proof on that issue. Even were the legal opinion otherwise admissible, that would not be substantial proof that the Pearl lots enjoyed the highest and best use for dwelling purposes in face of the unquestioned requirement by the FHA of a fifty foot frontage for residential construction loans.

Actually, the only legal evidence of market value was the testimony of Mrs. Pearl that after the death of her husband she sold both lots to a real estate broker for a total of $450 and the testimony of her appraiser Powell that the Oakley lot was then worth $100, and the Montgall lot, $150.

The denial of assistance was based on the finding that the Pearl lots were an available resource in excess of $2000. This conclusion rests on a determination of value which is without support in substantial evidence, assumes facts not proved, and is conjectural.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded with directions that the cause be further remanded to the Director of the Missouri State Division of Welfare for redetermination.

All concur.


author: SOMERVILLE, Judge.

text:
    Susan A. VANASSE, Plaintiff-Respondent, v. Rebecca Louise PLAUTZ, Defendant-Appellant.
    No. KCD 27858.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Patrick J. Eng, Welliver, Atkinson & Eng, Columbia, for defendant-appellant.
    Larry M. Woods, Sapp, Woods & Orr, Columbia, for plaintiff-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

A collision between an automobile operated by defendant (hereinafter referred to as appellant) and a motorized (electric) wheelchair operated by plaintiff (hereinafter referred to as respondent), resulting in damage to said wheelchair, generated this appeal. In the lower court a jury was waived and the cause was tried to the court which found for respondent and awarded her damages in the sum and amount of $453.00. Appellant contends the judgment below cannot stand for the reason that recovery by respondent is legally barred because she was guilty of contributory negligence. The “wheres” and “whys” of appellant’s contention will be more finitely stated after relating the evidence.

Respondent, a physically handicapped person, was a student at the University of Missouri, Columbia. On the evening of November 30, 1972, at approximately 10:30 P.M., while accompanied by another physically handicapped student (Mr. Cobb) who was also in a motorized wheelchair, she was en route to her student residence in Columbia, Missouri. The wheelchair occupied by respondent was electrically powered and had a maximum forward speed, absent the aid of gravity, of one and one-half miles per hour.

Both wheelchairs were proceeding south on South Park Drive, a two-lane, two-way street absent parallel sidewalks on either side. No other route was available to respondent to reach her place of residence.

Going south, South Park Drive was slightly downgrade. The surface of the street was asphalt. It was clear and dry at the time and the street was lighted by street lights alternately spaced approximately fifty feet apart on both sides of the street.

Respondent, dressed in white attire, was proceeding south in her wheelchair in the right hand or southbound traffic lane and Mr. Cobb was proceeding south in his wheelchair in the left hand or northbound traffic lane. The evidence is conflicting regarding whether respondent was in the middle of the right hand or southbound traffic lane as she proceeded south, or whether she was within a distance of approximately one foot of some cars that were parked parallel to the west curbline of South Park Drive. The evidence is hazy regarding whether the respective wheelchairs of Mr. Cobb and respondent at the time of the collision were directly opposite each other or whether one was slightly ahead or slightly behind the other.

Appellant, driving a “Volkswagen”, pulled onto South Park Drive approximately two and one-half blocks south of where the collision ultimately occurred. She proceeded north on South Park Drive in the northbound traffic lane (her right hand lane) at a speed variously described as approximately “ten miles per hour” and “thirty, forty miles an hour”. Appellant, according to her own testimony, turned her headlights on before she pulled onto South Park Drive. However, according to respondent’s testimony, the headlights on appellant’s car were not turned on until appellant’s Volkswagen reached a point approximately ten feet away from respondent. Respondent was able to see and observe the Volkswagen driven by appellant from the time it pulled onto South Park Drive.

There were no lights or “reflective” devices of any kind on respondent’s wheelchair. Mr. Cobb’s wheelchair also lacked lights. However, it was equipped with some type of “reflective strips”.

Appellant, as she proceeded north in the northbound lane of South Park Drive, according to her own testimony, did not see the wheelchair occupied by Mr. Cobb until she was approximately five feet from it. Immediately upon seeing it, she swerved to her left and, although she avoided striking the wheelchair occupied by Mr. Cobb, she struck the wheelchair occupied by respondent. She never saw the wheelchair occupied by respondent until the moment of impact. According to respondent, she swerved her wheelchair to the right when the Volkswagen driven by appellant was approximately ten feet away.

Respondent testified that at the scene following the collision, appellant stated to her: “I’m sorry, I didn’t see you. My windshield was fogged up.” Appellant’s own testimony confirmed that the windshield of the Volkswagen she was driving was “a little bit frosted” and that she intended to stop at the top of the hill (a point north of where the collision occurred) and clean it off because “[she] just thought, to be a safe driver that [she] should clean it off.”

Appellant, on the basis of the facts heretofore iterated, notwithstanding her tacit admission that she herself was guilty of actionable negligence, spiritedly contends that recovery by respondent is barred because respondent was guilty of contributory negligence as a matter of law. Alternative approaches are taken by appellant to advance this contention. First appellant contends that respondent’s motorized wheelchair constituted a “vehicle” as defined in paragraph (8) of Section 307.020, RSMo 1969, the obtaining statutory definition of “vehicle” in force at the time of the collision in question with respect to Sections 307.040 and 307.115, RSMo 1969, and respondent’s failure to have “lighted lamps” thereon as required by Sections 307.040 and 307.115, supra, constituted “negligence”, i. e., contributory negligence, and, such directly caused or directly contributed to cause the resultant damages which she sustained, all as a matter of law. Second, should it be determined that the motorized wheelchair occupied by respondent was not a “vehicle” within the purview of the statutory definition set forth in paragraph (8) of Section 307.020, supra, and therefore legally immune from the positive requirements of Sections 307.040 and 307.115, supra, appellant contends that respondent was nevertheless guilty of contributory negligence, as measured by the common law standard of ordinary care, in operating said wheelchair at nighttime on a “public highway” without any lights or signaling devices of any kind, or in failing to operate said motorized wheelchair on her left hand side of the street since her status was that of a pedestrian if the motorized wheelchair was not a “vehicle”, either or both of which directly caused or directly contributed to cause the resultant damages which respondent sustained, all as a matter of law.

Appellate review of this court tried case is governed by Rule 73.01 as recently construed by the Supreme Court of Missouri, en banc, in Murphy v. Carron, 536 S.W.2d 30, handed down May 5, 1976: “. . . the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Bearing this template of appellate review in mind, the grounds urged by appellant for outright reversal of the judgment below will be separately discussed.

Was the motorized wheelchair occupied by respondent a “vehicle” within the statutory definition that prevailed at the time [paragraph (8) of Section 307.020, supra], thereby subjecting respondent to the light regulations found in Sections 307.040 and 307.115,supra? This is a case of first impression in this state, fleeting though our holding may be (footnote 1, supra).

Paragraph (8), Section 307.020, supra, with respect to the applicability of Sections 307.040 and 307.115, supra, defines “vehicle” as follows: “‘Vehicle’ means every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks(Emphasis added.) So far as here pertinent, Section 307.040, supra, provides: “No person shall drive, move, park or be in custody of any vehicle . on any street or highway during the times when lighted lamps are required unless such vehicle . . . displays lighted lamps and illuminating devices as this chapter required. . . . ” (Emphasis added.) Section 307.115, supra, so far as here pertinent provides: “All vehicles shall be equipped during the times when lighted lamps are required with at least one lighted lamp or lantern exhibiting a white light visible from a distance of five hundred feet to the front of such vehicle . . . .” Both appellant and respondent, intentionally or otherwise, have at various times indiscriminately addressed the issue in terms of whether the motorized wheelchair was or was not a motor vehicle. It is patently obvious that the legislature advertently chose to include a broader array of vehicles than the ordinary concept of motor vehicles within the purview of Sections 307.040 and 307.115,supra, as witnessed by the broad and all-inclusive definition of “vehicle” set forth in paragraph (8) of Section 307.020, supra, and as further witnessed by the fact that on the other hand “vehicle” as used in Chapter 301, RSMo 1969 (“REGISTRATION AND LICENSING OF MOTOR VEHICLES AND OUTBOARD MOTORS”) and Sections 304.010 to 304.040 and Sections 304.120 to 304.570 in Chapter 304, RSMo 1969 (“Traffic Regulations”), is more limit-edly defined in paragraph (30), Section 301.-010, RSMo 1969, as follows: “ ‘Vehicle’, any mechanical device on wheels, designed primarily for use on highways, except those propelled or drawn by human power, or those used exclusively on fixed rails or tracks.” (Emphasis added.) Additionally, paragraph (17) of Section 301.010, RSMo 1969, separately defines “motor vehicle” as follows: “ ‘Motor vehicle’, any self-propelled vehicle not operated exclusively upon tracks, except farm tractors;”. When the definition of “vehicle” [paragraph (8) of Section 307.020, supra] as used in Sections 307.040 and 307.115, supra, is juxtaposed with the definitions of “vehicle” and “motor vehicle” [paragraphs (17) and (30) of Section 301.010, supra] as used in Chapter 301, supra [“REGISTRATION AND LICENSING OF MOTOR VEHICLES AND OUTBOARD MOTORS”] and Sections 304.010 to 304.040 and Sections 304.120 to 304.570, Chapter 304, supra [“Traffic Regulations”], it appears that the legislature cognizably intended to subject a virtually limitless classification of vehicles (“excepting” only “devices moved by human power or used exclusively upon stationary rails or tracks”) to the requirements of Sections 307.040 and 307.115,supra, as opposed to a less inclusive classification of vehicles subject to the “registration” and “licensing” requirements of Chapter 301, supra, and to the “traffic regulations” set forth in Sections 304.010 to 304.040 and 304.120 to 304.570, supra. This well-carved distinction strongly suggests (in any event prior to 1974 — see footnote 1, supra) that the legislature legitimately recognized that a vast array of vehicles, not just those “designed primarily for use on highways”, traverse streets and highways at nighttime, and voiced a proper legislative concern for the potential danger to which occupants of such vehicles were exposed absent the display of any lights, and, as well, the potential danger to which other vehicular traffic was exposed. This conclusion is buttressed by the fact that certain other sections contained in Chapter 307, RSMo 1969, [“Light Regulations”] expressly speak in terms of “motor vehicles” rather than “vehicles”. See for example Sections 307.045, 307.050, 307.060, 307.065, 307.070, 307.075, 307.080, 307.085, 307.100 and 307.-105, RSMo 1969. In light of the variant use of terms, the distinction between definitions by the legislature can only be viewed as deliberate.

This court refuses to forage among various peripheral rules of construction to determine the meaning of “vehicle” as defined in paragraph (8) of Section 307.-020, supra, because the language employed therein is unambiguous, conveys a plain and definite meaning, and the inherent legislative intent is readily ascertainable. State ex rel. Dravo Corp. v. Spradling, 515 S.W.2d 512 (Mo.1974) rev’d on other grounds; State ex rel. LeNeve v. Moore, 408 S.W.2d 47 (Mo. banc 1966); and DePoortere v. Commercial Credit Corporation, 500 S.W.2d 724 (Mo.App.1973). Accordingly, under the then prevailing law, the motorized wheelchair occupied by respondent was a “vehicle”, to wit, a “device in . which . [she was being] . . . transported upon a highway” which was not “moved by human power or used exclusively upon stationary rails or tracks” [paragraph (8) of Section 307.020, supra] and it was being operated in violation of Sections 307.040 and 307.115, supra. It is well settled that violation of a statute is ordinarily negligence per se. Berry v. Kansas City Public Service Co., 341 Mo. 658, 108 S.W.2d 98 (1937) rev’d on other grounds; and Beezley v. Spiva, 313 S.W.2d 691 (Mo.1958) rev’d on other grounds. There is no escape from the conclusion, supra, that respondent, as contended by appellant, was subject to and violated Sections 307.040 and 307.115, supra, and at first blush such would appear to bar recovery by respondent.

The conclusion just reached, however, does not consummate this appeal.

The fact that appellant has prevailed in her contention that the motorized wheelchair was a vehicle as defined in paragraph (8) of Section 307.020, supra, and respondent was statutorily remiss for failing to exhibit lights thereon as required by Sections 307.-040 and 307.115, supra, must, however hapless from appellant’s standpoint, be characterized as “winning the battle” and “losing the war”. Appellant perfunctorily assumes that if respondent was subject to and Violated Sections 307.040 and 307.115, supra, then she is barred from recovery. Such is a fatal assumption on her part. Contributory negligence, in order to bar recovery by an injured or damaged party, must be a proximate cause of the resultant injuries or damages sustained. Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223 (1945) rev’d on other grounds; and McConnell v. Pic-Walsh Freight Company, 432 S.W.2d 292 (Mo.1968). This is true even though contributory negligence is predicated on violation of a statute. Beezley v. Spiva, supra, l. c. 697. In unadorned language, the test for determining proximate cause is whether “the facts show that the injury [or damages] would not have occurred in the absence of the negligent act.” Dixon v. Wabash R. Co., 198 S.W.2d 395, 398 (Mo.App.1946); and Dintelman v. McHalffey, 435 S.W.2d 633 (Mo.1968). In the instant case this court cannot unequivocally say as a matter of law that the resultant damages sustained by respondent’s motorized wheelchair would not have occurred if it had been lighted in compliance with Sections 307.040 and 307.115, supra. The arbiter of the facts below, i. e., the trial court, reasonably could and apparently did conclude that even if respondent’s motorized wheelchair had been properly lighted appellant still would not have seen it in time to have avoided colliding with it because of the admittedly “fogged” or “frosted” condition of the windshield of the Volkswagen she was driving. In a sense of “caution” this court cannot say with a “firm belief” that the trial court’s conclusion was against the weight of the evidence. Nor can it be said that the trial court “erroneously declared” or “erroneously applied” the law. Murphy v. Carron, supra.

Having concluded that respondent’s motorized wheelchair was a “vehicle” as defined in paragraph (8) of Section 307.020, supra, and that she was subject to Sections 307.040 and 307.115, supra, appellant’s alternative contentions have been rendered moot. Moreover, if any of appellant’s alternative contentions could arguably be said to retain any shred of viability, the facts in which they are necessarily immersed relegate them to questions of fact, both as to contributory negligence and proximate cause, and this court, in view of the scope of appellate review spelled out in Murphy v. Carron, supra, would feel constrained to abide by rather than reject the ultimate conclusions reached by the trial court with respect thereto as implicitly disclosed by the judgment rendered by the trial court.

Judgment affirmed.

All concur.

      . Section 301.010, RSMo 1969, found in Chapter 301, captioned, “REGISTRATION AND LICENSING OF MOTOR VEHICLES AND OUTBOARD MOTORS” was amended by Laws 1974, p. 875 (House Bill 883) and now reads: “Definitions. — As used in chapter 301 and sections 304.010 to 304.040, 304.120 to 304.260 and 307.010 to 307.175, RSMo, the following terms mean:
      ******
      (30) ‘Vehicle’, any mechanical device on wheels, designed primarily for use on highways, except those propelled or drawn by human power, or those used exclusively on fixed rails or tracks.” (Emphasis added.)
      Section 301.010, RSMo 1969, prior to said amendment, made no reference to Sections 307.010 to 307.175, RSMo 1969. Anomalously, the enactment clause of House Bill 883 makes no mention of repealing Section 307.020, RSMo 1969. This opinion does not purport to decide whether the above amendment repeals the definition of “vehicle” contained in paragraph (8) of Section 307.020, RSMo 1969, by implication. Nor does this opinion purport to decide whether a motorized wheelchair under present law is a “vehicle” for purposes of the lighting requirements of Sections 307.040 and 307.115, RSMo 1969.