author: SHANGLER, Judge.

text:
    Kenneth MYERS, John Miller and Steve Belden, Appellants, v. CLAYCO STATE BANK, Respondent.
    No. WD 34,749.
    Missouri Court of Appeals, Western District.
    March 5, 1985.

      George H. Barr, Kansas City, for appellants.
    Kenneth O. Smith, Sharon K. Weedin, Knipmeyer, McCann, Fish & Smith, Kansas City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   SHANGLER, Judge.

The plaintiffs Myers, Miller and Belden appeal the dismissal with prejudice of a multicount petition against defendant Clay-co State Bank. The motion to dismiss, to which the judgment responds, alleged as grounds: the bar of the compulsory counterclaim rule of procedure; that the pleadings stated no cause of action; and that plaintiffs were not the real parties in interest. It is evident also from the presentations of counsel and from the inquiry of the court antecedent to decision that the judgment adjudicates that the claims asserted in the petition were precluded under compulsory counterclaim Rule 55.32(a) by the summary judgment entered by the circuit court of Platte County against these several plaintiffs [there defendants] and in favor of this defendant Clayco [there plaintiff] in case No., CV180-1684-CC.

There was before the court at the time the motion to dismiss was presented and ruled: the petition of the plaintiff as augmented by exhibits; the documents, pleadings and judgments in the several other litigations relevant to the causes of action the plaintiffs here propose; the affidavits, exhibits and other proofs tendered by the defendant Clayco in support of some motions and in opposition to others; and, all these, intersticed by arguments of counsel asserted as fact and assumed as fact in response — on the motion to dismiss. On appeal, the plaintiffs Myers, Miller and Bel-den contend that compulsory counterclaim Rule 55.32(a) does not govern the causes of action the petition pleads, that since the allegations otherwise state claims for relief, the petition should be restored. We review these assertions of error in the perspective of the facts, proofs and intend-ments properly available to the trial court.

The petition the judgment dismisses consummates a train of events begun some years earlier. The plaintiffs were then en-terprisers in commercial real estate and conducted business through numerous separate corporations — among them, First Standard Investors, Inc. In December of 1977, the Clayco State Bank loaned the First Standard corporation $250,000 by promissory note and, as a condition of loan, Myers, Miller and Belden each executed a personal guaranty in favor of the Bank for a portion of the total promissory obligation. The payments were made as due until early 1980, when the rise in interest rates impaired profit from the several ventures and caused delinquency in the several obligations. On January 7, 1980, Clayco advised the First Standard corporation and the personal guarantors that the obligations on the note were in default and accelerated, and made demand for immediate payment. The enterprisers Myers, Miller and Belden prepared and submitted to their creditors for consent a plan for orderly liquidation and, thereafter, Clayco [so the petition alleges] accepted payments from the enter-prisers and informed them “they would agree to the proposed liquidation.” Then, on July 9,1980, during the grace period the proposed moratorium allows the debtor First Standard corporation, the Clayco Bank once again advised First Standard Investors and the personal guarantors that the promissory note was in default and the balance accelerated, and once again made demand on the guarantors for payment.

On July 21, 1980, the Clayco Bank filed suit against the several guarantors. The guarantors Myers and Miller were residents of Missouri, and the Clayco Bank commenced suit against them by attachment in Johnson County, Kansas. The guarantor Belden was a resident of Kansas, and the Clayco Bank commenced suit against him by attachment in Clay County, Missouri. The subject of each suit was the obligation of the promissory note and the claim to recover the amount of the guarantee in default. The guarantor defendants, in each case, entered a general appearance, made answer, and the attachments were dissolved. The attachments [so the petition on review alleges] resulted in the foreclosure and liquidation of numerous properties “in which the appellants [enterprisers Myers, Miller and Belden] had equity.” While these suits pended, the Clayco Bank accomplished suit and service against all three guarantors and First Standard Investors in Platte County. The defendants Myers, Miller and Belden admitted that they executed the guarantees of the promissory note obligation, and summary judgment was adjudicated in favor of the Clayco State Bank. The judgment in that suit — Clayco State Bank v. First Standard Investors, Inc., Myers, Miller, Belden and others, Case No. CV180-1684-CC was entered on May 1, 1981. The separate suits in Johnson County, Kansas and Clay County, Missouri against the several guarantors were thereafter dismissed. Count I — for fraudulent misrepresentation — rested on allegations that the Clayco Bank agreed to the moratorium of the promissory note debt but with the intention not to honor the terms of that proposed liquidation, and instead commenced two suits, in Johnson County, Kansas, and in Clay County, Missouri, to collect the promissory guaranty. Count II — for outrageous conduct — rested on allegations that the deceitful representations of the Clayco Bank lured the guarantors into a sense of false security and were given to enable the Clay-co Bank time to bring suits on the note— and that these acts were done solely to harm the guarantors. Count III — abuse of process — rested on allegations that the Clayco Bank initiated two simultaneous liti-gations to collect the same loan debt, and that the concurrent suits in different courts to collect the same debt was unlawful and perverted and done merely to harm the guarantors. Count IV in prima facie tort— rested on allegations that the Johnson County and Clay County suits were intentionally undertaken to do harm to the guarantors and not only to collect the debt, and that with full knowledge of their precarious financial condition the Clayco Bank attached numerous property interests in order to commence the suits, acts calculated to inflict catastrophic financial injury upon them.

The trial court determined that on the pleadings and other proofs presented, the several causes of action attempted by the petition were compulsory counterclaims in the suit brought by the Clayco Bank on the promissory note guarantees in Platte County, and so were precluded by the summary judgment entered in that litigation, since become final.

Compulsory counterclaims Rule 55.-32(a) provides:

A pleading shall state as a counterclaim any claim which at the time of serving the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action.

The guarantors Myers, Miller and Belden argue that the four counts of the petition are not precluded by the compulsory counterclaims rule because (1) the causes of action do not arise out of the transaction or occurrence — the promissory note guarantees, (2) the causes of action were the subject of another pending action [in Johnson County, Kansas], and (3) the causes of action were not matured claims when the guarantors as defendants pleaded to the Platte County suit on the guarantees.

The guarantors contend first that the claims pleaded in the petition do not arise out of the promissory note transaction, and so are not precluded by the Platte County summary judgment in favor of the Clayco Bank and against the guarantors Myers, Miller and Belden — there as defendants. They argue that in the context of the rule, the promissory note guarantees were the transaction, and the only claim which arises from such a transaction is the obligation to pay the guarantees on default. The multiple causes of action the petition alleges, the argument continues, arise out of the wrongful means used by the Clayco Bank to enforce the obligation, and not from the obligation itself. The guarantors cite as precedent Texas decisions [and particularly Capetillo v. Burress & Rogers, 203 S.W.2d 953 (Tex.App.1947) l.c. 957] that suits for wrongful sequestration and for wrongful garnishment are in the nature of- abuse of process procured by a party to the suit, and “do not arise out of a transaction or occurrence which is being litigated, but arises out of the wrongful act of a party to the litigation in seeking to enforce rights out of the transaction or occurrence which is the subject matter of his suit.” Whatever the validity of a concept which cleaves the right from the remedy — an accrued claim from its enforcement — to constrict the operation of the compulsory counterclaims rule, the decisions of our state ascribe a more inclusive role to transaction and attribute a more peremptory policy for the rule.

The rule compels a pleader to state any claim that party has against an adversary which arises out of the transaction or occurrence which is the subject matter of the adversary claim. The operative terms of the compulsory counterclaims rule have been given authoritative definition in Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, 474[2-4] (1949): Transaction imports a pliable meaning and may encompass a series of occurrences, and depends in application, not so much upon the immediacy of connection, as upon logical relationship. Claim [of either the original pleader or of the counterpleader] refers not to the form of the action, but “to the underlying facts combined with the law giving a party a right to a remedy of one form or another based on the claim.” Subject matter of the claim does not equate merely with the cause of action, nor the object of the action, but rather [l.c. 475] describes the composite of “physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prosecuted.” [emphasis added] Thus, the term transaction extends to include [l.c. 474] “all of the facts and circumstances which constitute the foundation of a claim ... ‘all the facts and circumstances out of which the injury complained of arose.’ ” [emphasis added] Thus, also, the compulsory counterclaims Rule 55.32(a) is designed to bring into a single litigation all logically related claims on penalty of preclusion of a later assertion of any claim omitted. Cantrell, supra, l.c. 474[2-4],

Our decisions affirm and reaffirm with emphasis that the transaction predicate of the compulsory counterclaims procedure is to be applied “in its broadest sense,” to encompass all claims connected by a logical nexus. State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub, 668 S.W.2d 72, 75[8-11] (Mo. banc 1984); Jewish Hospital of St. Louis v. Gaertner, 655 S.W.2d 638, 641 (Mo.App.1983). The formulation of the rule does not delimit the scope of compulsory counterclaims [as the guarantors would have it] to only those claims which are of the same nature or seek the same relief [a claim on the promissory note proper — as the guarantors contend], or to claims conditional upon each other [as adversary contentions of injury from the same collision — State ex rel. Davis v. Moss, 392 S.W.2d 260 (Mo. banc 1965)], but extends to include claims logically connected by the composite of facts and circumstances on which the claims rest and out of which the contentions of injury arise. Harris v. Nola, 537 S.W.2d 636, 639[3] (Mo.App.1976); Cantrell, supra, 221 S.W.2d l.c. 474[2-4]. Thus, transaction comprehends claims which rest on circumstances of such obvious congruity as adversary contentions of injury from the same collision [State ex rel. Davis v. Moss, supra], or a claim to enjoin a teacher from teaching and a claim for salary — that is, whether or not a contract to teach subsisted [Brinkmann v. Common School District No. 27, 255 S.W.2d 770 (Mo. banc 1953) ], and those connected by less immediate, yet logically related occurrences — as in Harris v. Nola, supra; State ex rel. J.E. Dunn, Jr. v. Schoenlaub, supra, among others.

These principles and precedents dispel the contention of the guarantors that the promissory note guarantees were the entire transaction, and that the Clayco Bank misrepresentation to forbear suit during moratorium, the commencement of suit, and attendant incidents of attachment— which ground the multiple counts of the petition — are merely events only accessory and without logical reference to the Clayco claim on the promissory note guarantees. The argument the guarantors posit [and tender Texas authority to support] — that the enforcement of a claim amounts to a transaction separate from the claim — is compatible with neither expounded principle nor with precedent. The claim of the Clayco Bank [we note again] refers not merely to the form of the action, “but to the underlying facts combined with the law giving a party a right to a remedy of one form or another based on the claim. Cantrell, supra, 221 S.W.2d 1.c. 474[2-4] [emphasis added]. Transposed to the context of discussion, that is only to say that: “ ‘[a] claim ... consists of a subject matter upon which a proceeding may be brought by one party against another to obtain whatever relief the one is legally entitled to receive as against the other under the facts and circumstances upon which he relies.’ ” Ford v. American Brake Shoe Co., 252 S.W.2d 649, 652[5] (Mo.App.1952) [emphasis added]. Thus, the transaction from which the Clayco Bank claim arises encompasses not only the right to sue on the promissory note guarantees, but also the suit which gives efficacy — and hence, remedy, to the right. That transaction, self-evidently, also gives rise to the claims of the guarantors of injury from the wrongful motive to suit, from the commencement of suit itself, and from the attachments in aid of jurisdiction in the prior Kansas and Clay County actions on the promissory note guarantees. The failure to assert the multiple counts for fraud, outrageous conduct, abuse of process, and prima facie tort as counterclaims in the Platte County suit— where the guarantors Myers, Miller and Belden were for the first time subjected to the personal jurisdiction of a court as code-fendants on the Clayco Bank causes of action on the promissory note guarantees— now bars those claims and the petition which asserts them.

The guarantors Meyers, Miller and Belden contend, nevertheless, that the claims for misrepresentation, outrageous conduct, abuse of process and prima facie tort fall within the exception of Rule 55.-32(a): “But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action” — and so were not compulsory counterclaims to the Platte County action, and are not barred from assertion in the petition on review. That exception, paraphrased in terms of the facts presented by the record, reads: the guarantors were not obliged, at the risk of later preclusion, to have stated their claims for misrepresentation [and the other counts] in the Platte County suit if at the time that Clayco Bank petition was served upon the guarantors their claims for misrepresentation [and the others] were the subject of another pendent action. The three guarantors were served with the Clayco Bank suit papers and were thereafter obliged to plead any claim the guarantors had against Clayco Bank. The claims for misrepresentation, outrageous conduct, abuse of process and prima facie tort — all of which rest on the assertions of fraudulent agreement to forbear from suit, initiation of the suits against two fragments of the guarantors [one in Kansas and one in Clay County], and the sequestration of assets by the attachment in aid of jurisdiction — were all in being at the time the obligation befell to plead in the Platte County suit. There was no assertion of claim, however, but only the affirmative defense by Belden [and wife, not a party before us] in the Kansas suit and Myers and Miller in the Clay County suit that “plaintiff [Clayco Bank] is, or should be, estopped from asserting the claims set forth in its petition.”

The guarantors acknowledge that at the time Clayco Bank commenced suit against all the guarantors on the promissory note in the- Platte County action, suit already pended against Myers and Miller in the Kansas court as guarantors on the note and against Belden in Clay County as guarantor, and that those guarantors made answers, but no claim. They contend that despite the absence of any pleaded claim against Clayco in the Platte County suit, the possibility of statement of claim by amendment remained open until the termination of those suits! They contend, in effect, that as long as the Kansas and Clay County suits were not terminated, the rule did not require their counterclaims in the Platte County suit — and since those suits were not dismissed until after the summary judgment in Platte County, they were not obliged to counterclaim while the Platte County suit pended. That syllogism, however, assumes premises the compulsory counterclaims rule does not countenance and which are otherwise alien to its logic. A pleader need not state a counterclaim only if at the time the action was commenced [against that pleader — here, the guarantors] the claim was the subject of a pending action. The guarantors concede that at the time Clayco commenced suit against them in Platte County, no claim by any of them pended against Clayco in any court. Rule 55.32 required the guarantors to assert the several claims as counterclaims in the Platte County suit, and bars the later assertion. State ex rel. Davis v. Moss, 392 S.W.2d 260, 263 (Mo. banc 1965). Were we to assume that, the peremptory cast of the compulsory counterclaims rule notwithstanding, the guarantors retained the option and initiative to amend the respective responsive pleadings in Kansas and Clay County to assert as counterclaims the misrepresentation, outrageous conduct, abuse of process and prima facie tort, even after the Platte County summary judgment, that option was never exercised or that initiative exploited. The two suits were dismissed after the entry of summary judgment in Platte County without statement of any counterclaim against Clayco— and so, those several claims never became “the subject of another pending action” so as to exclude them from the bar of the compulsory counterclaims Rule 55.32(a).

The guarantors contend also that the claims for misrepresentation, outrageous conduct, abuse of process and prima facie tort were not mature at the time they were obliged to plead to the Clayco petition in Platte County, and so were not subject to compulsory counterclaims Rule 55.32(a). They argue that until all the litigations were completed — the suits in Kansas, Clay County and Platte County — the damages were not capable of ascertainment, and hence the causes of actions were not matured.

It is implicit that the compulsory counterclaims rule operates only as to claims of the adversary already matured at the time of service of the pleading of that party is due. Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 813[2] (Mo.App.1982). A matured counterclaim, within the sense of Rule 55.32(a), is a claim which has accrued to the pleader: that is to say, when the right to sue arises. In terms of statute of limitations § 516.100, RSMo 1978, a cause of action accrues [and so for compulsory counterclaims purposes, matures] “when the damage resulting therefrom is sustained and is capable of ascertainment.” The resultant damage is sustained and capable of ascertainment “ ‘whenever it is such that it can be discovered or made known.' ” Chemical Workers Basic Union Local 1744 v. Arnold Savings Bank, 411 S.W.2d 159, 165 (Mo. banc 1966). In all events, a claim accrues [and limitations begins its course] when a person “has some notice of his cause of action, an awareness either that he has suffered an injury or that another person has committed a legal wrong which ultimately may result in harm to him.” Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 150[4] (Mo.1967).

The guarantors do not argue that they did not know they were not aware of the several wrongs [they now seek to redress] at the time they were obliged to plead to the Platte County action, but only that the full extent of the damage was not capable of ascertainment until the three litigations had run their course — and hence those several claims were not yet mature. Ascertainment, however, refers to the fact of damage, rather than to the precise amount. Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. banc 1983). The several claims — misrepresentation, outrageous conduct, abuse of process and prima facie tort — all rest on allegations of wrong and injury known to the guarantors even before their several duty to plead to the Kansas and Clay County petitions arose, and so a fortiori even before their duty to plead to the Platte County suit arose. These claims all rest [to some or other extent] on allegations of a fraudulent agreement by Clayco to a yearlong moratorium and to refrain from suit on the promissory note guarantees, but meant by Clayco to induce the guarantors into a false sense of security, the wrongful initiation of the Kansas and Clay County suits, the attachments in those suits to perfect jurisdiction but motivated by excess and malice to inflict harm on the guarantors, the subsequent collapse of the moratorium agreements of the other creditor subscribers, and resultant catastrophic business losses to the guarantors and their enterprises. Thus, at that early time even before responses to the Kansas and Clay County suits were due, the guarantors had “some notice that [they had] suffered an injury or that another person ha[d] committed a legal wrong which ultimately [might] result in harm to [them].” Krug v. Sterling Drug, Inc., supra, l.c. 150[4], Thus, also, the fact of damage was known to the guarantors, if not the precise extent of injury [Dixon v. Shafton, supra, l.c. 438], and the claims they now seek to assert by separate petition, were matured counterclaims to the Platte County petition, compulsory but neglected, and so now barred.

The guarantors contend finally that the court erred in the refusal to allow their motion to amend the petition, heard concurrently with the motion of the defendant Clayco Bank to dismiss the petition as barred by the compulsory counterclaims Rule 55.32(a). The motion to amend was in response to the alternative Clayco motion to dismiss or for a more definite statement of claim. The guarantors argue that the amended petition was tendered, and should have been allowed, “to clear up any uncertainty.” Our opinion assumes that the several claims the petition of the guarantors asserts against Clayco Bank are legally sufficient. The petition as amended and as tendered to the trial court [and now before us in the legal file on appeal] alters no significant fact or sequence of time and so, even if allowed, does not escape the bar of compulsory counterclaims Rule 55.32(a).

The judgment is affirmed.

All concur.

      . The Proposed Voluntary Liquidation appended as part of the petition issues not from First Standard Investors, Inc., but from Great Western Development Corporation and "its affiliates" —presumably, First Standard among them, and was subscribed by "Steven L. Belden, President." The liquidation plan bears no date, but proposes a moratorium on payments due and the grace of a reduced interest rate for a period of one year, to await the liquidation of all assets.

      . Capetillo, in any event, rests on dixit alone. The reasoned decision of the Texas Court of Civil Appeals in that case initially ruled that the claim for the abuse of process by wrongful sequestration was a compulsory counterclaim in the original suit [l.c. 956]: “We think that by former decisions of our courts, and by their practice prior to the adoption of the new rules, it must now be considered as settled that any injury suffered by a defendant in a sequestration arose out of or was incident to, or connected with, the cause of action of the plaintiff in sequestration.” That decision, however, was simply reversed on rehearing and discarded, all without rationale or principle, to come to the result the guarantors here assert as precedent— that suits for abuse of process procured by a party to the suit do not arise out of the transaction in litigation.

      . The fact of suit in Platte County is alleged throughout the several counts, but only to describe the succession of events, and not as a compounding of any of the wrongs.

      . The original suits by Clayco against the several guarantors were brought in Johnson County, Kansas and Clay County, Missouri on the same day: July 21, 1980. On July 24, 1980 — long before any responsive pleading was due by the several guarantor defendants as to either, and after the attachments to perfect jurisdiction were served on July 22, 1980, in both suits — the letter of attorney Morgens on behalf of at least the Belden defendants in Clay County warned Clayco that "the methods employed to date with regards to attaching a grossly excessive and in most instances, unrelated series of business properties, shall be attacked with the maximum available legal means. This could well include suit for tortious and wrongful attachment and/or other related means." [emphasis added] Despite this avowal to sue for these excesses already perpetrated on the guarantors and known by them, the answer to each suit filed thereafter [on July 30, 1980. to the Kansas petition, and on August 13, 1980, to the Clay County petition] asserted only the affirmative defense of estoppel.


source: Caselaw Access Project

author: LOWENSTEIN, Presiding Judge.

license: Public Domain

text:
    Jean LIBBY, Appellant, v. John C. HILL and Kenneth Brooks, Respondents.
    No. WD 35396.
    Missouri Court of Appeals, Western District.
    March 5, 1985.

      J. Kirk Rahm, Rahm, Rahm & Dandu-rand, P.C., Warrensburg, for appellant.
    N.R. Bradley, Bradley, Langdon & Bradley, Lexington, for respondents.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   LOWENSTEIN, Presiding Judge.

This case involved a wrongful death suit arising out of a motorcycle/school bus collision. Appellant, Jean Libby, is the widow of the motorcycle driver, Richard Libby. The jury found for the defendants, Brooks, the bus driver, and Hill, Brooks’ employer, finding the decedent either failed to keep a careful lookout, drove at excessive speed, or failed to operate his motorcycle on the right half of the roadway.

The accident occurred in an early morning fog when the bus was making a left hand turn off a Highway 24 onto a gravel road near Lexington. The motorcycle, going the same direction as the bus, hit it broadside, just to the front of the rear wheel on the drivers side. Libby’s claim was that the bus had overshot its turn and had backed up on the pavement and so was at a more perpendicular angle than it should have been. Libby also claimed the bus lights were not on so as to give the decedent ample time to brake, and that the bus had not made a left turn signal.

Two of Libby’s points on appeal concern diagrams that were kept out of evidence. One was Plaintiff’s Exhibit 2B, a tracing of a drawing of the accident scene made by the investigating Highway Patrolman. Libby contends the diagram was critical for proving the angle of the bus. However, the trial court sustained the defendants’ objection to its admission on the grounds that the diagram was not drawn to scale, nor based on measurements, thus they were only an approximation and speculative and not competent evidence.

Libby cites a number of cases, such as Martin v. Sloan, 377 S.W.2d 252 (Mo.1964), for the proposition that whether a drawing is to scale goes to the weight of evidence not its admissibility. But that is not the only problem here. The officer admitted on direct examination that he had not measured the angle of the bus in relationship to the highway. Thus, there was no guarantee of accuracy of the drawing regarding the very aspect on which Libby planned to rely. Trial judges are afforded wide discretion on permitting a witness to utilize diagrams in explaining his testimony. The court in Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 643 (Mo.App.1980), said that “when the use of such articles would not assist the jury to better understand the testimony of the witness, the court, may in its discretion refuse to admit an exhibit.” See also Campbell v. Manhattan & Bronx Surface Transit Operating Authority, 81 A.D.2d 529, 438 N.Y.S.2d 87, 88 (1981), where a police officer’s diagram was properly excluded because he was not a witness to the accident and had taken no measurements and made no independent investigation.

While admission of this diagram would also have properly been within the trial judge’s discretion, this court’s scope of review is limited by Rule 84.13(b) to whether the alleged error materially affected the merits of the action. As this court said in Davis v. Mathews, 649 S.W.2d 256, 259 (Mo.App.1983), “error in the admission of evidence is not grounds for reversal if it does not prejudice the complaining party or adversely affect the jury in reaching its verdict.” Green v. Stanfill, 641 S.W.2d 490, 492 (Mo.App.1982). In this case Libby was able to thoroughly examine the police officer about his observations. Furthermore, the theory that the bus had backed up was put before the jury through the testimony of a witness who spoke with the bus driver shortly after the accident. It cannot be said the absence of this diagram materially affected Libby’s case. The trial court’s ruling to reject the diagram which might have aided the jury in understanding what happened, did not however, amount to an abuse of discretion. O’Laughlin v. Barstow, 654 S.W.2d 95, 97 (Mo.App.1983).

The second diagram, Plaintiff’s Exhibit 115, that was kept out of evidence was a rough sketch by defendant Hill, drawn at the scene the day of the collision. Libby wanted to use this diagram to impeach Hill’s testimony about the angle of the bus. But as with the police diagram, no measurements were taken of the angle — in fact the sketch was not made on his own observation of the bus, but on hearsay of others. The drawing was made merely to orient Hill with what had happened, and involved nothing more than speculation. For the same reasons as the first point discussed, the trial court did not abuse its discretion in refusing to admit Hill’s sketch.

In sum, the plaintiff’s theory of the bus missing the turn and backing up to make it, was not kept from the jury by the non-receipt of the two diagrams. The trooper and two witnesses testified as to the location and angle of the bus just after the accident. The trooper’s exhibit probably should have been allowed in evidence for whatever its worth. That it wasn’t does not amount to error materially affecting the merits of the action and causing reversal. Rule 84.13(b). Both points on the diagrams are denied.

Libby’s next contention is that the trial court committed prejudicial error when following a recess during direct examination of defendant Brooks, it stated, “Now Mr. Brooks, you have been sworn to tell the truth, and I know you will.” Libby did not, however, make an objection to the statement either at that time or later. As the court held in Morrison v. Thomas, 481 S.W.2d 605 (Mo.App.1972), prejudicial remarks made by the court must be seasonably objected to or the question will not be ordinarily reviewed on appeal. Libby asks in the alternative that the statement be reviewed under the plain error rule 84.-13(c). But no manifest injustice can be found where the court was merely reminding the witness that he was still under oath and was expected to tell the truth.

The next point concerns the court’s limitation of Libby’s closing argument as to drawing a negative inference from the defendant’s failure to call witness Bonnie Ho-eppner. Hoeppner, an employee of Hill and co-worker of Brooks was the first person at the scene. However, she was not present when the accident actually occurred. She did not get out of her car to assist, but merely manuevered her car around the bus. Mr. DeBoard who was driving a car immediately behind Ho-eppner’s was called as a witness by the plaintiff, as was the driver of the third car on the scene who happened to crash into the bus rather than go around it. DeBoard testified there was a space of three feet between the rear of the bus and edge of the highway, and using the south shoulder followed the Hoeppner car past the bus.

As the Missouri Supreme Court said in Leehy v. Supreme Express & Transfer Co., 646 S.W.2d 786, 790. (Mo. banc 1983), “the failure of a party to call a witness having knowledge of facts and circumstances vital to the case generally raises the presumption that the testimony would be unfavorable to the party failing to proffer it.” Furthermore, there is a presumption that an employee is more available to an employer than to the opposing party, and a negative inference may be argued. However, in Barnett v. Equality Sav. & Loan Ass’n, Inc., 662 S.W.2d 924, 926 (Mo.App.1983), the court held that this is not a hard and fast rule and “in circumstances where the employee’s non-produced evidence is corroborative or cumulative to other evidence, the negative inference may not be argued.”

In this case Libby asserts Hoeppner would testify as to the angle of the bus, and whether the bus’s lights were on, including the left turn signal. Driver’s of the second and third cars on the scene testified that they did not see any lights on the bus. Libby did not choose to ask about the left turn signal, and she cannot now claim that Hoeppner would have been asked anything more specific. A question about lights would seem to encompass turn signals. There was also ample testimony from the witnesses about the angle of the bus. Hoeppner’s testimony could have been cumulative, and the trial court properly denied any negative inferences.

The last point concerns Jury Instruction No. 6, which was a contributory negligence instruction. Libby contends that the part of the instruction which hypothesized that “decedent failed to operate his motorcycle on the right half of the roadway” was without evidentiary support. But even Libby admits the evidence is clear that the decedent’s motorcycle was on the left half of the road when the crash occurred. Whether the decedent was negligent in doing so or was justified because he was trying to avoid the collision is a question for the jury, and has nothing to do with the submissibility of Instruction No. 6. Even though this was a not-in-MAI instruction based on § 304.015(2) RSMo (1978), the Missouri Supreme Court decision in Friederich v. Chamberlain, 458 S.W.2d 360, 366 (Mo. banc 1970), still applies. The presence of a motor vehicle on the wrong side of the road at the time of the collision is, of itself, sufficient to create an inference of negligence. This point is therefore denied, and the action of the trial court is in all aspects affirmed.

All concur.


author: BERREY, Judge.

text:
    CITIZENS BANK OF SMITHVILLE, Appellant, v. R.M. LAIR, Respondent.
    No. WD 35554.
    Missouri Court of Appeals, Western District.
    March 5, 1985.

      Kristin L. Farnen, Gladstone, for appellant.
    Robert H. Shaw, Platte City, for respondent.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   BERREY, Judge.

Appellant appeals from defendant’s motion to dismiss which was sustained at close of plaintiffs evidence.

In this court-tried case the appellant brought suit against respondent as guarantor on a promissory note executed by his son, Ricky Lair.

The note in question was executed April 29, 1980, in the principal sum of $5,500.00 at 14.6 percent annual interest. Interest after the date of maturity would be at the “maximum rate permitted by law, together with reasonable attorney’s fees in the event [the] note is not fully paid at maturity and the same is placed in the hands of an attorney for collection.” The note was collateralized by “growing crops” and due December 30, 1980. The note also provided:

No renewal or extension of this note, no release or surrender of any collateral or other security for this note or any guaranty of this note, no release of any person primarily or secondarily liable on this note, no delay in the enforcement of payment of this note or guaranty of this note and no delay or omission in exercising any right or power under this note or any guaranty of this note, shall affect the liability of any parties liable hereon.

The note defines “parties liable” to include the guarantor.

Respondent, R.M. Lair, executed a guaranty agreement on the back of the promissory note providing that the “undersigned waive notice of acceptance of this guaranty, acknowledge themselves as fully bound by all provisions of said Agreement, and expressly agree to pay all amounts owing hereunder, upon demand, without requiring any action or proceeding against debtors.” The president of the Citizens Bank of Smithville testified that he did not explain the document to R.M. Lair but did tell him his obligation as a guarantor was that, “If Ricky didn’t pay, he had to pay.” On the date of signing, the bank president and R.M. Lair discussed the amount of money Ricky would need to farm his 1980 crops.

Ricky planted the intended crops and ultimately received checks totaling $12,076.50 drawn on the Continental Grain Company naming Ricky Lair and the Citizens Bank as co-payees. Ricky and the bank discussed the disbursement of the proceeds, and the bank issued portions of the proceeds to Ricky and other portions to repay earlier existing loans between Ricky and the bank. It is unclear whether R.M. Lair was guarantor or co-maker of the earlier loans. “Not one penny” of the proceeds was used to pay the note which is the subject of litigation in the instant case.

On January 30,1981, one month after the original note’s due date, the appellant entered into a new agreement with Ricky without the advice or knowledge of respondent, guarantor R.M. Lair. The new instrument was entitled “Extension Agreement” and called for repayment of the principal amount ($5,500.00) at the higher interest rate of 14.8 percent effective January 19, 1981, and due June 30, 1981.

Appellant alleges: (1) the new agreement did not constitute a novation of the original note, (2) the defendant consented to such an extension, (3) there is no evidence the plaintiff unjustifiably impaired the collateral, and (4) that plaintiff used due diligence in efforts to collect the note.

The trial court sustained the defendant’s motion to dismiss at the close of the plaintiff’s evidence and, therefore, the facts should be stated on the basis that the plaintiff’s evidence is true. M.H. Siegfried R. Est. v. City of Independence, 649 S.W.2d 893, 894 (Mo. banc 1983). The facts are not in conflict and the question concerns their legal effect. The judgment will be affirmed if correct. Id., at 895.

The liability of a guarantor is limited by the specific terms of the contract and is entitled to strict construction of his obligation in his favor. He is not bound beyond the letter of his obligation and nothing may be implied against him. Lange Co. v. Freeman, 13 S.W.2d 1092, 1094 (Mo.App.1929).

“[I]t is well settled that the rights of a guarantor are strictissimi juris, and the contract of guaranty must be construed strictly according to its terms, and no stretching or extension of its terms can be indulged in order to hold the guarantor liable on his guarantee.” Zoglin v. Layland, 328 S.W.2d 718, 721 (Mo.App.1959) (emphasis added); see also: Pelligreen v. Century Furniture & Appliance Co., 524 S.W.2d 168, 172 (Mo.App.1975); Bank of Slater v. Harrington, 218 Mo.App. 645, 266 S.W. 496, 497 (1924).

The cases are legion that “when the intention is clearly expressed and defined in the written guaranty, the liability of the guarantor may not be extended beyond its express terms....” Eberly v. Lehmer, 48 S.W.2d 151, 153 (Mo.App.1932).

The general rule is that any alteration in the contract by the principals thereto releases the surety, unless the surety consents to it. And the rule is so strict that the courts will not stop to inquire whether the alteration was injurious or beneficial to the surety. The reason is that contracts of suretyship are strictly construed in favor of the surety, and he has a right to stand upon the exact contract he made; and no one, not even a court, can change it in any respect.

Beauchamp v. North American Sav. Ass’n, 543 S.W.2d 536, 538 (Mo.App.1976), quoting Missouri Finance Corporation v. Roos, 226 Mo.App. 869, 47 S.W.2d 142, 146 (1932).

A material alteration in, or departure from the contract of guaranty without the guarantor’s consent will discharge him. 38 C.J.S. Guaranty § 74, at 1239-40 (1943); First State Bank v. Benson, 613 S.W.2d 888, 890-91 (Mo.App.1981); Cf. Robb v. N. W. Electric Power Cooperative, 297 S.W.2d 385, 388 (Mo.1957) (regarding alteration of instruments generally).

Whether an alteration in a [guaranty] contract is material depends upon whether after the alteration it expresses the same contract, and whether it will have the same operation and effect as before. If the change enlarges or lessens the liability, it is material and vitiates the contract. J.R. Watkins Co. v. Powell, 93 Okl. 219, 220 P. 585, 586 (1923).

“Under the common law and statutes declaratory thereof, a change in the amount as representing the liability on a bill or note or other contractual instrument is a material alteration such as to discharge a non-consenting party.” 3A C.J.S. Alteration of Instruments § 46, at 308 (1973). Likewise,:

Where an interest clause is a material part of a ... note, ... any change of the instrument which alters the terms of the contract in this regard is material and vitiates it, as where a word or clause is added or inserted to make the instrument bear interest, when originally it did not, or where interest clause is stricken out. So it is a material alteration to change the rate of interest of the instrument whether this effects an increase or decrease in the rate,....

Id., § 48, at 309; see: Kircher v. Dunnington, 325 Mo. 355, 29 S.W.2d 138 (1930).

There is no doubt that in the instant case the “Extension Agreement” extended the period for repayment of the original note from eight months to fourteen months at an increased interest rate of 14.8 percent [as opposed to the original rate of 14.6 percent]. There is also no doubt, according to the overwhelming weight of authority, that the alterations were material. The controlling question is whether or not the respondent consented to the alterations.

Appellant argues that if the guarantee agreement contains a provision which contemplates or authorizes a change in the terms of the principal obligation, a change within the scope of the agreement does not discharge the guarantor. 38 Am.Jur.2d Guaranty, § 83 (1968). Appellant argues that this principle governs the situation where, as here, the guarantor agrees to be bound by all terms of the original note and one of the terms of the note provides for the guarantor’s continuing liability in the event of renewal or extension. However, the terms to which appellant refers, events which will not affect the guarantor’s liability, do not specifically mention the effect that an increase in interest has on the guarantor’s liability. Through strained construction of the terms involved, appellant argues that the clause concerning interest to be charged after the maturity date of the note, when coupled with the guarantor agreeing to be bound by all provisions of the note, prove the guarantor’s consent to the increased rate of interest. In light of the authorities holding that contracts of suretyship are strictly construed in favor of the surety, this court does not find the respondent consented to an increase of interest merely by signing the guaranty agreement.

Moreover, this court construes the “Extension Agreement” to be a new note and not a renewal or extension. The agreement was executed one month after the original due date, provided for an increased rate of interest, was unsecured by collateral, and provided for repayment period of six months. These alterations, when viewed together, render the second agreement so materially different from the original as to constitute a new agreement between Ricky and the bank. R.M. Lair was not a party to the new note and therefore is not required to satisfy any obligation arising thereunder. The evidence is clear that the guarantor did not know of the new note between his son and the bank. Had he been aware of the new note but did not actively concur and consent to be bound by its terms, he cannot be so bound. Missouri Finance Corporation v. Roos, supra, at 146, citing Brandt on Suretyship, (3rd Ed.) § 379.

Although having already concluded R.M. Lair is released from liability on the original note, this court believes it is important to address the issue of “impairment of collateral,” as addressed by both parties’ briefs. Section 400.3-606(l)(b), RSMo 1978, provides, “the holder discharges any party to the instrument to the extent that without such party’s consent the holder ... unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any party against whom he has a right of recourse.”

It is undisputed that at the time the “Extension Agreement” was executed, Citizens Bank had disposed of all proceeds of the collateral on which the original note was based. The bank applied a portion of the proceeds to Ricky Lair’s previous loans and paid portions to Ricky. It is unclear whether R.M. Lair was guarantor to any of the other loans. The note in question refers to the collateral generally as “growing crops per UCC-1 of even date” and contains a microscopically printed cross-collat-eralization clause.

The bank cites Commerce Bank of St. Louis, N.A. v. Wright, 645 S.W.2d 17 (Mo.App.1982), for the proposition that the defense of impairment of collateral is not available to a guarantor where the note specifically sets forth terms whereby the liable parties agree to pay the debt regardless of the use of the collateral. The terms regarding release or surrender of property in the Commerce Bank case were substantially similar to the terms of the Ricky Lair note set forth earlier in this opinion. But in addition, the note in the Commerce Bank case provided that the bank need not proceed against the collateral before proceeding against the debtor or other undersigned.

However, a bank is “obliged to act in good faith and with a reasonable degree of care.” Commerce Bank, at 22. R.M. Lair may have consented to a good faith surrender or release of the proceeds from the “growing crops,” but here, the bank applied the proceeds for its own benefit and applied them to previous loans, at least some of which were not guaranteed by R.M. Lair. It then executed an “Extension Agreement” with knowledge that the collateral was no longer available and without advising the guarantor.

A similar problem was addressed in Security Trust & Savings Bank v. June, 38 Ariz. 513, 1 P.2d 970 (1931), and the facts bear full disclosure. June executed a note as an accommodation maker only and at the time of signing, the note was secured by crops to be grown in 1926 by defendant Helton. The crops were grown and harvested and twelve bales of cotton were delivered to plaintiff and sold for more than enough to satisfy the debt. Abstractly put in the instant case and June, at 971: If A executes a note and chattel mortgage to B and C becomes an accommodation maker or indorser, and A tenders the crops to B, may B disburse the proceeds as he elects or is he bound so far as C is concerned, to first pay the note guaranteed by C and specifically secured by the mortgage? The court in June held, “When, however, the collateral is pledged for the security of a specified debt, for which a guaranty has also been given by a surety, the majority rule is that the proceeds of the collateral cannot be first applied by the creditor to a debt not embraced by the pledge, without the consent of the surety.” Id., at 972.

On the basis of the facts in the instant case, this court does not find that R.M. Lair consented to the actions of the bank. Even if consent is found, the bank did not act in good faith with regard to the interest of the guarantor. Again, the bank knew the collateral was depleted at the time of the “Extension Agreement” but yet executed the agreement without the knowledge of the guarantor. In Beauchamp v. North American Sav. Ass’n, supra, at 537, the court cited Citizens’ Trust Co. v. Tindle, 272 Mo. 681, 199 S.W. 1025, 1029 (banc 1917), noting that a guarantor is favored by the law and his obligations “will not extend beyond what he is fairly bound to by the precise terms of his contracts.” In light of this policy, the guarantor should not be injured on the basis of general language in a note designed to protect the bank from loss in every situation imaginable. Good faith, at the very least, requires the bank to inform a guarantor of the occurrence of events, within its knowledge, by which it realizes the guarantor’s interests are in jeopardy.

Because an adverse ruling on any of appellant’s four points would be disposi-tive, we need not address appellant’s additional points.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    James M. CAMPBELL, Appellant, v. MISSOURI PERSONNEL ADVISORY BOARD and Missouri Department of Corrections, Respondents.
    No. WD 35643.
    Missouri Court of Appeals, Western District.
    March 5, 1985.

      David Kite, Jefferson City, for appellant.
    James C. Martin, Jefferson City, for respondents.
    Before CLARK, P.J., TURNAGE, C.J., and KENNEDY, J.
   PER CURIAM.

This is an appeal from a decision of the Circuit Court of Cole County, affirming a decision of the Personnel Advisory Board, which had approved the dismissal of appellant from his employment as a Corrections Officer II at the Kansas City Honor Center. Appellant’s employer (“appointing authority”) was the Division of Corrections of the Department of Social Services. The dismissed employee’s appeal to the Personnel Advisory Board is provided by Section 36.390.5, RSMo Supp.1981. Section 36.390.-9, RSMo Supp. 1981 provides for review by the circuit court and adopts generally the provisions of Chapter 536 for the governance of Personnel Advisory Board appeal hearings and judicial review.

We affirm the judgment of the circuit court. We have reviewed the record made before the Personnel Advisory Board. The question before us is whether the record contains competent and substantial evidence to support the decision of the Board. Overland Outdoor Advertising Co. v. Missouri State Highway Comm’n, 616 S.W.2d 563, 566 (Mo.App.1981).

We find that there is in the record competent and substantial evidence to support the allegation that appellant’s dismissal was justified for violations of Board Rules (B), (K) and (L) of 1 CSR 20-3.070(2). Those rules allow dismissal if the employee

(B) Is incompetent, inadequate, careless or inefficient in the performance of the duties of his or her position or has failed to meet established minimum standards in the performance of such duties.
(K) Has been guilty of insubordination or has failed to respond in a reasonable manner to their [sic] lawful orders or instructions of persons with duly delegated authority over the employee;
(L) Has wilfully violated the lawful rules, regulations or policies of the agency by which employed after having been made aware of such rules, regulations and policies.

It is not necessary to recite the evidence supporting the Board’s decision. Appellant, in support of his argument that there was not competent and substantial evidence to support the Board’s decision, points to appellant’s own version of the evidence, which is in many respects in conflict with that of the employer. Of course, we take as true the evidence in support of the Board’s decision along with all reasonable inferences to be drawn therefrom, and we disregard the evidence which is inconsistent with the Board’s decision. State Board of Registration for the Healing Arts v. Finch, 514 S.W.2d 608, 616 (Mo.App.1974).

An extended opinion would have no value as precedent. Rule 84.16(b).

The judgment is affirmed.


text:
    STATE of Missouri, Respondent, v. Denise JONES, Appellant.
    No. WD 35773.
    Missouri Court of Appeals, Western District.
    March 5, 1985.

      David Durbin, Asst. Public Defender, Kansas City, for appellant.
    Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   ORDER

PER CURIAM.

Appeal from conviction pursuant to § 569.090.1(3), RSMo.Supp.1983, Class A misdemeanor.

Judgment affirmed. Rule 30.25(b).

All concur.


author: TURNAGE, Chief Judge.

text:
    Annetta Louise GIBSON, Petitioner-Respondent, v. Max Hall GIBSON, Respondent-Appellant.
    No. WD 35859.
    Missouri Court of Appeals, Western District.
    March 5, 1985.

      Joseph Y. DeCuyper, Donnie R. Davis, DeCuyper & Lee, Kansas City, for respondent-appellant.
    Daniel M. Czamanske, Riverside, for petitioner-respondent.
    Before TURNAGE, C.J., and SOMER-VILLE and LOWENSTEIN, JJ.
   TURNAGE, Chief Judge.

Annetta Gibson brought suit for specific performance of a property settlement agreement entered into with her former husband, Max Gibson. The court ordered Max to perform, and also ordered Max to pay attorney fees and costs.

Max contends that the court altered the parties’ agreement; that Annetta pleaded an agreement different in terms from the one she sought to enforce; that the trial court lacked venue; that Annetta had an adequate remedy at law; and that Max should not have been assessed attorney fees and costs. Affirmed.

Prior to the dissolution of their marriage, Annetta and Max entered into a property settlement and separation agreement. By that agreement, Max agreed to pay Annet-ta contractual maintenance of $2,000 per month until 1987, and thereafter $1,800 per month until the year 2000. The agreement provided that the payments would continue in the event of Max’s death, and to guarantee this, the agreement further provided that Max was to establish an insurance trust to be funded by decreasing term insurance in the amount of $200,000. These provisions of the property settlement agreement were incorporated into the dissolution decree. After the dissolution, the parties agreed that the insurance trust would be funded by whole life insurance policies in the amount of $180,000.

Pursuant to their agreement, Max executed an insurance trust in February of 1981. Annetta was satisfied with the trust agreement, except for the provision that Max retained the right to borrow, pledge, or use the cash value of the insurance policies placed in the trust. Annetta filed suit to require Max to perform the property settlement agreement, and alleged that to perform that agreement, the trust provision allowing Max to borrow, pledge, or use the cash value of the policies would have to be deleted. The court agreed and entered judgment ordering Max to remove that provision from the trust.

Max first contends that by requiring him to remove the provision in question, the court created a new agreement. The property settlement agreement provided for term insurance, which does not build cash value, but the parties later agreed that whole life policies, which do build cash value, could be substituted. Max thus argues that the property settlement agreement, as modified, contained nothing that would disallow Max the right to use the cash value of the policies.

Max’s argument wholly misses the mark. The provision inserted by Max could at least partially defeat the trust purpose because Max could use the cash value as it accumulated and thus impair the security afforded by the insurance policies to pay maintenance in the event of his death before the year 2000. The court did not make a new agreement for the parties when it required Max to delete the provision in question, but in fact enforced the parties’ agreement that Annetta have security in the form of life insurance policies.

Max next contends that Annetta sought to enforce an agreement different from the one she pleaded. Annetta’s petition alleged that the cash value provision could limit the amount of cash available to pay maintenance if Max died. That is the agreement Annetta pleaded and sought to enforce, and it is the same agreement the court enforced by its judgment. The court’s decision to disallow Max the right to invade the security he agreed to provide simply enforced his agreement to provide security.

Max next contends that the Circuit Court of Platte County had no jurisdiction to entertain this specific performance action because venue was properly in Clay County, where Max resided. The property settlement agreement provided that the court in which the dissolution of marriage action was brought would retain jurisdiction for the purpose of interpreting and enforcing the terms of the separation agreement. The dissolution of marriage action was brought in Platte County, and that court entered the dissolution judgment. Annetta’s petition was an action to enforce the terms of the separation agreement and the dissolution judgment by requiring Max to execute a trust which would not allow him to impair the security he had promised to provide. In State ex rel. Mario v. Hess, 669 S.W.2d 291, 294[6, 7] (Mo.App.1984), the court held that an action may be entertained in a circuit court having jurisdiction of the subject matter when the parties have contractually agreed to waive the personal privilege of venue and where such provision is neither unfair or unreasonable. Here, the parties contractually agreed that the jurisdiction of actions to enforce the agreement would be in Platte County. They thereby waived the personal privilege of venue, and agreed that this action would be cognizable in the Circuit Court of Platte County. No circumstances exist which make that agreement unfair or unreasonable. Therefore, the Circuit Court of Platte County had jurisdiction to entertain this action.

Max next contends that Annetta was not entitled to specific performance because she had an adequate remedy at law through the filing of a claim against Max’s estate if Max should die. To defeat the jurisdiction of equity to decree specific performance, the remedy at law must be as plain, adequate, complete, and efficient as the remedy of specific performance. Snip v. City of Lamar, 239 Mo.App. 824, 201 S.W.2d 790, 798[10] (1947) (quoting 49 Am. Jur. Specific Performance § 11).

It can hardly be said that the remedy of filing a claim against an estate with its attendant uncertainties is as plain, adequate, complete, and efficient as requiring Max to abide by the terms of their agreement. It is obvious that the uncertain fate of a claim against an estate would not be an adequate remedy to defeat the remedy of specific performance.

Max finally contends that the court erred in awarding Annetta attorney fees and costs for the prosecution of the specific performance suit. The agreement provided that each party would indemnify the other for all litigation expenses, including reasonable attorney fees, incurred by either party because of the failure of the other party to carry out the terms of the agreement. Max contends he should not be required to pay Annetta’s attorney fees and costs in bringing the specific performance suit because he had fully performed the parties’ agreement. For the reasons stated, Max did not perform his agreement, and the court was correct in ordering him to delete the provision in question from the trust agreement. Attorney fees may be awarded to a successful litigant when provided for by contract. Porter v. Hawks Nest, Inc., 659 S.W.2d 786, 789[6, 7] (Mo.App.1983). Annetta is the successful litigant and under the agreement is entitled to her attorney fees and costs.

The judgment is affirmed.

All concur.


text:
    Alice DRAGNA, Appellant, v. AUTO OWNER’S MUTUAL INSURANCE COMPANY, Respondent.
    No. WD 36167.
    Missouri Court of Appeals, Western District.
    March 5, 1985.
    Robert J. Hiler, Kansas City, for appellant.
    William T. Session, Linde, Thomson, Fair-child, Langworthy, Kohn & Van Dyke, P.C., Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   PER CURIAM.

Dragna appeals from the circuit court’s order sustaining Auto Owner’s motion to dismiss. Her action sought to recover damages under the uninsured motorist provision of an automobile insurance policy. The judgment is affirmed.

In 1980, Dragna was involved in a single car accident when she was forced to swerve off the roadway in order to avoid having a head-on collision with a vehicle that was proceeding north in her southbound lane. There was no physical contact between the two vehicles and Dragna was unable to identify either the driver or the vehicle that caused the accident.

At the time of the accident, Dragna owned an insurance policy issued by Auto Owner’s. The policy provided coverage for personal injuries sustained in an accident with an uninsured motorist. However, the policy required that before such recovery could be had, the claimant had to either identify the uninsured motorist or prove physical contact between the vehicles occupied by the claimant and the uninsured motorist. These restrictions were well established and they had been upheld in prior appellate decisions.

In 1981, Dragna filed a petition against Auto Owner’s seeking to recover damages under the uninsured motorist provisions of her insurance policy. Auto Owner’s filed a motion for summary judgment alleging that Dragna had failed to state a cause of action in that her petition failed to allege that there was physical contact between the two vehicles or that she could identify the other driver. The trial court issued an order granting the summary judgment motion in November, 1981, and there was no appeal.

In 1982, the uninsured motorist statute, section 379.203, RSMo 1978, was amended in relevant part to read as follows:

(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.-030, RSMo, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. Such legal entitlement exists although the identity of the owner or operator of the motor vehicle cannot be established because such owner or operator and the motor vehicle departed the scene of the occurrence occasioning such bodily injury, sickness or disease, including death, before identification. It also exists whether or not physical contact was made between the uninsured motor vehicle and the insured or the insured’s motor vehicle. Provisions affording such insurance protection against uninsured motorists issued in this state prior to October 13,1967, shall, when afforded by any authorized insurer, be deemed, subject to the limits prescribed in this section, to satisfy the requirements of this section.

Section 379.203(1), RSMo Supp.1982. The amendment, which merely added the underlined language to the already existing provision, clearly eliminated the contact or identity requirement.

Based on this amendment, Dragna again filed suit against Auto Owner’s seeking to recover damages for injuries she sustained in the 1980 accident. The petition filed in 1983 was virtually identical to the one filed in 1981, the only real difference being the amount requested in damages. Auto Owner’s filed a motion to dismiss or in the alternative, motion for summary judgment based on the 1981 order granting summary judgment in its favor. The court, after hearing oral arguments and considering the parties’ written suggestions, sustained the motion to dismiss on the grounds that the 1981 summary judgment had rendered the matter res judicata and that the amendment to section 379.203 did not apply retroactively.

On appeal, Dragna asserts first that the doctrine of res judicata could not operate to bar her suit in that amended section 379.-203 created a new cause of action which was not available when her original suit was brought. She further contends that the amendment should be retroactively applied in that it is remedial legislation and it expressly provides for such application in the last sentence of subsection (1) quoted above. The retroactive application argument will be considered first.

The test to be applied in determining whether a statute relates back was expressed in State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974) as follows: a statute shall not be applied retrospectively unless (1) the legislature manifests a clear intent that it do so, or (2) the statute is procedural only and does not affect any substantive rights of the parties.

Dragna’s contention that the final sentence of section 379.203(1), RSMo Supp. 1982, expressly provides for retroactive application of the amended statute is without merit. This language, which has remained unchanged since the statute first became law in 1967, concerns the validity of uninsured motorist policies issued prior to October 13, 1967, and the statutorily required minimum coverage. It in no way signifies that the statute was intended to have retroactive effect.

Nor does the statute fall within the other exception to the rule prohibiting retroactive application. By eliminating the requirement of showing either contact or identity in uninsured motorist claims, the new statutory language obviously had a substantive effect. That effect was to create new rights; thus, it was not merely procedural or remedial as Dragna asserts. Shepherd v. Consumers Cooperative Association, 384 S.W.2d 635, 640 (Mo. banc 1964). The trial court correctly held that the statute was not to be given retroactive effect.

Dragna’s final assignment of error alleges that the doctrine of res judicata was improperly applied to bar her claim in that the amended statute created a new cause of action which was not previously available to her. This argument fails for two reasons. The first requires no explanation beyond saying that even assuming arguen-do that a new cause of action was created, it would not be available to Dragna since, as discussed above, the statute cannot be applied retroactively to her claim.

The second reason for discounting Dragna’s argument is that the amendment did not in fact create a new cause of action. A cause of action has been defined as “a subject matter upon which a proceeding may be brought by one party against another to obtain whatever relief the one is legally entitled to receive as against the other under the facts and circumstances upon which he relies.” Ford v. American Brake Shoe Co., 252 S.W.2d 649, 652 (Mo.App.1952). It was noted earlier that the amendment created new rights; that is not to say that it created a new cause of action. Its effect was to modify the law applicable to the existing cause of action. Additional support for this conclusion is provided by considering the similarities of the two petitions involved in the case. Such comparison reveals that the parties, operative facts, complaint allegations and theory of recovery are identical and the relief sought varies only in amount.

It is well settled that summary judgment constitutes a final judgment on the merits which operates to raise the defense of res judicata and to thus bar further litigation of the cause of action. Pic-Walsh Freight Co. v. Cooper, 618 S.W.2d 449, 454 (Mo.App.1981). Dragna has had her day in court and the trial court properly dismissed her suit based on the same cause of action. To hold otherwise would be to deprive the doctrine of res judicata of its purpose of providing finality to decisions.

The judgment is affirmed.

       Word "or” appears in original rolls.


author: GREENE, Judge.

text:
    Red NORRIS, d/b/a Norris Truck Sales, Plaintiff-Respondent, v. Jerry M. JONES, Defendant-Appellant.
    No. 13793.
    Missouri Court of Appeals, Southern District, Division Three.
    March 7, 1985.
    Daniel T. Moore, L. Joe Scott, Daniel T. Moore, Poplar Bluff, for plaintiff-respondent.
    Randy P. Schuller, Hackworth & Schul-ler, Piedmont, for defendant-appellant.
   GREENE, Judge.

Plaintiff, Raymond “Red” Norris, d/b/a Norris Truck Sales, sued defendant, Jerry M. Jones, for damages, alleging that Jones had fraudulently misrepresented a tractor truck he had traded to Norris as a trade-in on a new truck.

During jury trial, at the close of plaintiff’s evidence, the trial court sustained defendant’s motion for directed verdict on the grounds that Norris, an experienced truck dealer who had been in business for 28 years, had no right to rely on the misrepresentation, but was required to use ordinary care to determine the truth. The truck in question that Jones traded to Norris was represented by Jones to be a “1979 Freight-liner” when, in truth and in fact, the unit was a 1979 Freightliner “glider kit”. A glider kit is a partial unit consisting of cab, chassis, front axle, and other parts, but is minus the drive train, which includes the engine, transmission, rear end drive unit, and suspension. Jones installed the drive train parts, including a transmission and rebuilt rear end unit from a wrecked 1976 Freightliner tractor.

On appeal, this court reversed and remanded for trial on the merits, holding that Jones’ representation of the trade-in truck as a 1979 Freightliner, when he knew it was a glider kit to which he had added parts from a wrecked 1976 truck, was a positive misrepresentation of fact, and that under those circumstances, Norris had no duty to make an independent examination to determine if Jones was telling the truth. Norris v. Jones, 661 S.W.2d 63 (Mo.App.1983).

On re-trial, a jury returned a verdict in favor of Norris for $2,750. The trial court overruled Jones’ after trial motion for judgment notwithstanding the verdict, and entered judgment for Norris in the sum of $2,750. Jones appeals, contending 1) the evidence was insufficient to make a sub-missible case, and 2) instructional error.

Appeals from trial court denials of motions for judgment notwithstanding verdict are treated in the same fashion as appeals from denial of motions for directed verdicts at the close of the evidence. In both instances, the primary question is, did plaintiff make a submissible case? In seeking an answer to that question, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the prevailing party below, disregarding all evidence and inferences to the contrary. Dockery v. Mannisi, 636 S.W.2d 372, 376 (Mo.App.1982).

Viewed in that light, the evidence before the jury was that Norris, doing business as Norris Truck Sales, had been in the truck business for 28 years. The business was located in Fremont, Missouri. He bought, sold, and traded trucks, including those called tractors, which are used to pull trailers. Norris handled “50 to 100, 125” truck transactions a year and was familiar with truck values. In February of 1981, Norris had in stock a 1981 Eagle Brougham International tractor with a Caterpillar engine. Jones, an independent trucker who lived in Tennessee, was looking for a truck of that type and heard, through a friend, that Norris had one. Jones telephoned and told Norris that he had a “1979 Freightliner conventional” tractor he would like to trade in on the Eagle. Norris told him to bring it up, and he would look at it. Jones did so.

Jones knew, but did not tell Norris, that the Freightliner was a glider kit that he had completed, including installing a transmission and rear end housing from a wrecked 1976 Freightliner. Jones did tell Norris that he had installed a 1980 Cum-mins engine that was still in warranty. His explanation as to why he told Norris about the engine, and not about the transmission and rear end installations, was that he felt it was up to the buyer to ask questions about the truck. At the time of the transaction with Norris, the transmission and rear end housing on the Freight-liner unit had been subjected to approximately 450,000 miles of wear, with the mileage on the engine being considerably less. The only way a person who was not privy to the conversions made by Jones to the unit could tell that it was a glider kit would be to see the serial number which, in the case of a glider kit contains a “Z”, or else be told by someone with knowledge that it was a glider kit unit.

After hearing the representations made by Jones, Norris inspected the truck, but did not look at the serial number. Norris, according to the bill of sale in evidence, priced the Eagle Brougham at $79,667.10 less a trade-in allowance of $51,677.10 for the Freightliner, showing a balance due of $28,000. Jones accepted the offer. A bill of sale was prepared by Karen Nall, the secretary for Norris, who obtained a serial number, VIN CB110ZP171115, from the Freightliner, put that number on the bill of sale, as well as the serial number of the Eagle, made a copy of the bill of sale to retain for business records, and gave the original to Jones. Norris did not look at the bill of sale at that time. Jones left with the new Eagle tractor, and the balance due on the Eagle was later paid.

The title to the Freightliner trade-in was then mailed to Norris. When Norris received the title, he examined it, could tell by the “Z” in the serial number that he had received a glider kit, and called Jones, who confirmed it. There was evidence that a 1979 Freightliner glider kit, with the engine, transmission, rear end and suspension installed later, was worth $10,000 less than a 1979 Freightliner where those parts had been factory installed when the unit was assembled. The reason given for the price difference was that a buyer would have no way of knowing the actual miles of wear to which the installed engine or other parts on the glider kit unit would have been subjected. Norris was not able to sell the truck as a factory completed unit.

The evidence outlined above made a submissible case of actionable fraud since, if believed by the jury as it evidently was, it constituted proof that Jones made a materially false representation to Norris, knowing it was false, and intending that Norris rely on it, that Norris was ignorant of the falsity of the misrepresentation, had a right to rely on it, and did rely on it, to his detriment and damage. Cotner v. Blinne, 623 S.W.2d 615, 616 (Mo.App.1981). The evidence shows facts and circumstances from which the jury could have reasonably found that the tractor truck traded by Jones was not a 1979 Freightliner factory completed truck as Jones had represented, but was a glider kit to which older used parts had been added. The more modern decisions hold that such evidence is enough to make a submissible case, as fraud may be inferred and need not be shown by positive proof, if all of the facts and circumstances reasonably support such an inference. Cantrell v. Superior Loan Corp., 603 S.W.2d 627, 634-635 (Mo.App.1980). So it is here. The point is denied.

In defendant’s remaining point, he contends Instruction No. 6 submitted to the jury is so misleading and confusing that its submission constituted prejudicial error. This argument borders on the specious. The instruction reads as follows:

INSTRUCTION NO. 6
If you find in favor of the plaintiff then you must award plaintiff such sum as you believe was the difference between the actual value of the tractor truck on the date it was sold to plaintiff and what its value would have been on that date had the tractor trailer truck been as represented by defendant.

Defense counsel argues that since the same truck is described on one line of the instruction as a tractor truck and two lines later as a tractor trailer truck, the jury was misled and confused. In McCory v. Knowles, 478 S.W.2d 682 (Mo.App.1972), a motor vehicle was described in one part of an instruction as an automobile, and in another place as a station wagon. The appellate court held no prejudicial error, which is only common sense. The point is denied.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.


text:
    Billy G. JOY and Ethel Joy, Plaintiffs-Respondents, v. James A. HULL and Virginia Hull, Defendants-Appellants.
    No. 13798.
    Missouri Court of Appeals, Southern District, Division Three.
    March 7, 1985.

      Dale E. Nunnery, Hyde, Purcell, Wilhoit, Spain, Edmundson & Merrell, Poplar Bluff, for plaintiffs-respondents.
    Clinton D. Summers, Summers, Cope & Walsh, Poplar Bluff, for defendants-appellants.
   GREENE, Judge.

This case involves a dispute over the ownership of real estate in Butler County, Missouri, between plaintiffs, Billy and Ethel Joy, and defendants, James and Virginia Hull.

The disputed tract of less than five acres is rocky pasture land covered with brush and trees, and is of little apparent value. It lies between land purchased by the Hulls from Daniel and Lou Brown on June 5, 1974, and land purchased by the Joys from Chester and Arcadia Lindsay on August 17, 1976. The Lindsays had sold the Hull property to the Browns on May 28, 1971. According to Chester Lindsay’s testimony at the time of trial, the Lindsays apparently had mistakenly included a description of the land in the disputed area, which the Joys now claim by adverse possession, in the deed they had given the Browns.

The case was court-tried, after which a judgment was entered, quieting title to the disputed tract in the Joys for the reason that they and their immediate predecessors in title had adversely possessed the land continuously for a period of more than ten years, as required by the adverse possession statute. § 516.010, RSMo 1978.

The Hulls appealed, contending the trial court erred in granting a judgment for the Joys because 1) the judgment was against the weight of the evidence since the Joys had not proved their possession of the disputed tract was actual and notorious, and 2) it erroneously “tacked” time spent on the tract adversely by the Lindsays to time spent on the land by the Joys in order to reach the ten-year statutory adverse possession period.

It is our duty to affirm the trial court’s judgment if there is substantial evidence to support it, if it is not against the

weight of the evidence, and if it is not based on any erroneous declaration or application of law. Murphy v. Carron, 586 S.W.2d 30, 32 (Mo. banc 1976). Since findings of fact and conclusions of law were not requested of, or made by,, the trial court, it is presumed that all facts are found to support the judgment. Lohrmann v. Carter, 657 S.W.2d 372, 376 (Mo.App.1983). We accept as true all evidence, and permissible inferences therefrom, favorable to the prevailing parties below, disregarding all evidence and inferences to the contrary. S.G. Adams Printing v. Central Hardware Co., 572 S.W.2d 625, 628 (Mo.App.1978).

Viewed according to these principles, the facts are as follows. The disputed tract, referred to in the evidence as tract “B”, is roughly rectangular in shape, and is bounded on the west and south by county road 410, on the east by Cane Creek, and on the north by property owned by the Joys, over which there is no legitimate dispute. If we understand the Hulls’ appellate brief correctly, the only area claimed by them is tract “B”. Fences border the county road on its east and west sides, and extend from the northern boundary of a section line to a point south of tract “B” where the road crosses the creek. The land in question is across the road from the rest of the Hulls’ property, but is adjacent to the Joy land.

The overwhelming weight of the trial evidence was that the Lindsays did not intend to convey tract “B” to the Browns when they sold them land in 1971. Lindsay continued to pasture his cattle on the tract, bush hogged it on a regular basis, maintained the fences, picked and sold walnuts from the land, and hunted and fished on the property. Brown did not regard the property as his, did not treat it as such, and did not tell the Hulls that tract “B” was included in the land the Browns sold the Hulls in 1974. Lindsay did tell Joy that tract “B” was a part of the land sold to the Joys in 1976.

From the time of the purchase, the Joys claimed as theirs the land west of the county road. They maintained the fences and pastured cattle in the area. Joy hunted and fished on the tract, and granted or denied permission to other people who wished to do the same. Hulls’ house was located across the road from tract “B”, and Hull could see that Joy was repairing fences and pasturing cattle on tract “B”. Hull never complained of this, and after notice that Joy was using the land as if it were his, made no complaint. Suit claiming title by adverse possession was filed by the Joys on September 9, 1983.

Actual possession of real estate may be shown by continuing acts of occupying, clearing, pasturing and erecting and maintaining fences on rural land. Teson v. Vasquez, 561 S.W.2d 119, 126 (Mo.App.1977). Continuous use of the land under a claim of right for the purposes for which the land is susceptible, supports a claim of adverse possession. Feinstein v. McGuire, 297 S.W.2d 513, 517 (Mo.1957). The evidence was sufficient to show that the Joys and their predecessors in title, the Lind-says, used the land for a continuous period of more than ten years before suit was filed.

As to point two, it was permissible for the trial court to “tack” the Joys’ adverse possession time of seven years spent on tract “B” to the adverse possession time in excess of three years spent on the same tract by the Lindsays as the immediate predecessors of the Joys. The Hulls argue that the continued possession of tract “B” by the Lindsays (grantors) could not be considered as adverse possession against a grantee (the Browns and their successors in title, the Hulls) as a grantor is regarded as a tenant of, or trustee for, the grantees under those circumstances, citing Hood v. Denny, 555 S.W.2d 337, 346 (Mo.App.1977). Their reliance on Hood is misplaced. The rule regarding continued possession by a grantor of transferred property is stated in Orrick Dehydrating Co. v. Edwards, 673 S.W.2d 48, 51-52 (Mo.App.1984), where the appellate court stated:

“Ordinarily, where a grantor continues in possession of the land after execution and delivery of the deed, his possession will be that either of tenant or trustee of the grantee; he will be regarded as holding the premises in subserviency to the grantee. Thus the occupation of land by a grantor, after conveyance is made, is presumed to be under, and in subordination to, the legal title held by his grantee, for he is ordinarily estopped by his deed from claiming that his holding is adverse. However, this presumption is rebuttable. A conveyance does not, of itself, prevent the grantor from acquiring title by adverse possession as against the immediate and remote grantees.”

Here, the presumption was rebutted by the adverse possessory acts of the Lindsays during the period of time the Browns had title to the land, and was dissolved completely when the Browns conveyed to the Hulls, as the presumption applies only between a grantor and his immediate grantee. Orrick Dehydrating Co. v. Edwards, supra, at 52. The point has no merit.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.


author: HARBISON, Justice.

text:
    Walter Ronald HUTCHISON, Plaintiff-Appellee, v. Laurence G. (Bucky) TEETER and wife, Carol Teeter, Defendants-Appellants.
    Supreme Court of Tennessee, at Nashville.
    March 18, 1985.

      Richard H. Batson, F. Evans Harvill, Clarksville, for plaintiff-appellee.
    Frank J. Runyon, Clarksville, for defendants-appellants.
   OPINION

HARBISON, Justice.

In this personal injury action the Court of Appeals reversed a jury verdict for the defendants, appellants here, because of error in the jury instructions. After review of the record and of the instructions given, we concur in the result reached by the Court of Appeals and remand the cause for a new trial.

Because the case is to be re-tried, a detailed statement of the evidence is not necessary. There were discrepancies in the testimony of the parties and witnesses, presenting a proper case for jury determination. The issues were close, so that correct jury instructions were particularly important. See Boyd v. Boyd, 680 S.W.2d 462 (Tenn.1984). For this reason also we agree with the Court of Appeals that the errors committed were sufficiently serious to warrant a retrial.

Appellee, Walter Ronald Hutchison, was a backhoe operator employed by James N. Hogue. He sustained the personal injuries for which the action was brought when his backhoe punctured a private propane gas line on property owned by appellants, Laurence G. Teeter and wife, Carol Teeter, on November 14,1979, Appellee was instructed to dig footings for three pairs of concrete pillars on which the metal legs for an elevated grain bin were to be anchored.

Appellee was operating the backhoe in a narrow space, not over thirty-five feet wide. This area lay between two large metal grain drying bins and the wall of a newly constructed grain processing shed on the premises. Through this area about two years previously there had been installed an underground feeder line from two large above-ground liquid propane fuel tanks, leading to a gas-operated grain dryer situated between and roughly parallel with the two metal drying bins.

On the evening before this work was undertaken, Mr. Teeter advised the general contractor, Mr. Simpson, and one of his employees, Larry Perry, that the line ran through the area where the footings were to be dug. There is material discrepancy between their testimony and his. Mr. Teeters testified that he did not know the exact location of the gas line and so advised Simpson and Perry. He said he told them that they might encounter the line and if so, they would have to dig it up and relocate it at his expense. They testified that he advised them that the line ran close to the end of a concrete footing on which the dryer was situated, and they believed this to be ten or twelve feet away from the area where the excavation was to take place. They accordingly advised appellee Hutchi-son when he arrived the next day that there were no underground obstructions where he was to dig the footings. They testified that they did tell him that there was a gas line in the general area, but both he and Mr. Hogue denied this.

It is conceded by appellants that liquid propane gas is dangerous in that it is liquified under pressure, vaporizes even at low temperatures and is highly flammable. Hutchison punctured the line in question while digging the second footing. Escaping vapor was ignited by a nearby fire maintained by the construction workers, and Hutchison was injured in the resulting explosion. Appellant Teeter was not present at the time of the incident, nor were any of his employees on the site. He did not know Hutchison or his employer Hogue, had no knowledge as to when or by whom the excavation would be done, and had made arrangements for the work only with the general contractor.

Although the brief of his counsel refers to Hutchison as a licensee, in this state persons such as he have generally been held to be business visitors, and the trial court correctly instructed the jury to that effect in this case. The general duty of a landowner to employees of a contractor or subcontractor performing work on his premises is set out in Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 544, 330 S.W.2d 569, 571 (1959), as follows:

“While there are cases to the contrary, the weight of authority is to the effect that the owner or occupier of the land, with certain exceptions, is duty bound to use reasonable care to provide a safe place in which an independent contractor and his employees can work.”

In the present case the propane gas line was maintained by the owners and remained at all times under their control. We agree with the Court of Appeals that the trial judge therefore committed reversible error in instructing the jury that if control of the premises in question had been turned over to the contractor, the landowner would owe no duty at all to employees of the contractor or subcontractor. This instruction was not based upon any evidence in the case, there being no contention that control of the propane gas equipment had been entrusted to the contractor, or that the contractor was to perform any repairs or other work thereon. We agree with the Court of Appeals that this instruction could have misled the jury and that it was not appropriate.

We also agree with the Court of Appeals that the general principles governing the additional responsibility of a landowner to persons lawfully on the premises, such as employees of subcontractors, where the landowner conducts an inherently dangerous activity, are correctly set out in International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948). In that case it was made clear that the liability of a landowner in such a situation is based upon principles of negligence, and not strict liability or liability without fault. He is not an insurer, but the fact that he maintains a highly dangerous agency or instrumentality requires commensurate preventive or safety precautions. This duty is not delegable to others. If entrusted to others, such as a general contractor, the landowner can be held liable for their negligence or non-performance. Such cases “are thus cases of vicarious liability” and are exceptions to the general rule of non-liability for the actions of an independent contractor. P. Keeton, Prosser and Keeton on Torts 511 (5th ed. 1984); Restatement (Second) of Torts §§ 416, 427 (1965).

The trial judge generally so instructed the jury in the present case, including stating to them that the duty of the landowner to take appropriate preventive measures was not delegable. He declined a special request offered by counsel for appellee, however, to the effect that this duty could not be delegated to the general contractor so as to completely exonerate the landowner. We agree with the Court of Appeals that the requested instruction was a correct statement of the law and should have been given.

Under the circumstances of this case, the trial judge erred in giving appellants’ Special Request No. 2, to the effect that they could be held liable only for their personal acts of negligence. This would be correct generally but is too restrictive when an inherently dangerous facility is maintained in the area of the work to be done. See Keeton, op. cit. supra 512-514.

We are of the opinion that the charge given by the trial judge was otherwise generally correct, and that it was sufficient for him to instruct the jury that the landowner had a nondelegable duty to take appropriate preventive measures. Such measures, of course, could include shutting off the propane gas system or seeing that reasonable warning was given to persons working near it. As stated previously, the liability of the appellants, if any, must rest upon principles of negligence — lack of ordinary reasonable care on their part or that of the contractor under all of the facts and circumstances. It is not strict liability even though the contractor and subcontractor were required to work in the vicinity of a dangerous agency such as a propane gas system.

The area where the landowner told the contractor the line lay was narrow and confined. It was not an open field. According to Mr. Teeter’s testimony and to a diagram which he filed as an exhibit, one edge of the footings lay within five to six feet of the concrete base of the dryer. The contractor and his men outlined the area to be excavated in dry lime or cement, so that it was plainly visible on the surface of the ground. If the diagram is correct and if Mr. Simpson and his employee Perry did in fact tell Hutchison and his employer Hogue that a propane gas line lay between the marked area and the dryer base, then both Hogue and Hutchison had to know that the backhoe was being operated very close— within a few feet — to an underground propane gas line.

Under all of the circumstances, negligence of the landowners, of their contractor and of the plaintiff and his employer, as well as proximate cause, are issues to be determined by the jury under proper instructions.

At trial appellants sought to amend their answer to assert the defense of contributory negligence, not previously affirmatively pled. The trial court disallowed the amendment as untimely. Since the case is to be re-tried, however, further consideration should be given to the proposed amendment, and it should be allowed if appellants seek to pursue the issue.

The cause is remanded for a new trial. Costs incident to the appeal will be taxed to appellants.

COOPER, C.J., and FONES, BROCK and DROWOTA, JJ., concur.

      . In Hudson v. Gaitan, 675 S.W.2d 699 (Tenn.1984) the common-law distinction between the duties of landowners to licensees and to business guests was abolished with respect to premises liability.

      . Hogue denied being told that there was a line in the area and said that if he had known, he would not have permitted Hutchison to excavate without other measures being taken, such as shutting off the system.