author: CROSS, Judge.

text:
    Helen M. SEITTER, Respondent, v. CITY OF ST. JOSEPH, Missouri, Appellant.
    No. 23575.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Joseph G. Wood, and Mark W. Young-dahl, St. Joseph, for appellant.
    Dale, Potter & Flynn, Whitney W. Potter, St. Joseph, for respondent.
   CROSS, Judge.

Plaintiff received personal injuries when she stepped into a rut and fell while walking across a street intersection. The defendant city appeals from a judgment entered on a jury verdict awarding plaintiff damages in the sum of $3200.00.

It is suggested in plaintiff’s brief that the appeal should be dismissed for defendant’s failure to comply with Civil Rule 83.05, V.A.M.R. Plaintiff complains that defendant’s brief does not contain a fair and concise statement of facts and lacks specific page references to the appeal transcript as required by the cited rule. In our discretion we decline plaintiff’s request to enter a dismissal. The appeal will be determined on its merits.

Defendant contends that the trial court erred in refusing to direct a verdict in its favor because the evidence showed that the “defect” in the city street was of such slight and trivial nature that, as a matter of law, defendant was not guilty of any negligence. In deciding this point we shall consider the evidence from the viewpoint most favorable to plaintiff.

Plaintiff’s fall occurred in the middle of the intersection of Seventh Street and Edmond Street, in the business district of St. Joseph, Missouri. That intersection is described by the city’s superintendent of streets as “a heavily travelled intersection”. Edmond Street runs east and west, and, at the intersection involved, is a one-way thoroughfare travelled by eastbound traffic. Seventh Street is a two-way street running north and south. Travel at the intersection is controlled by light signals directing both vehicular and pedestrian traffic. When the “walk” light is on, pedestrians are permitted to cross the streets and vehicular traffic is stopped in all directions. The intersection is described as a “scramble cross-walk” which pedestrians are permitted to negotiate diagonally from all four corners as well as directly from corner to corner.

Plaintiff is a married woman, fifty-eight years old, and a lifelong resident of St. Joseph. On the afternoon of February 21, 1961, she and a friend, Mrs. Gladys Whit-taker, had gone downtown to do some shopping. After having shopped for about two hours, they walked to the northeast corner of the described intersection, intending to cross it diagonally to the southwest corner where they would take a bus to return home. They waited until the “walk” light appeared and then proceeded to walk across the intersection in the intended direction. They were in the pedestrian crosswalk and were following a white line which had been painted on the street to mark the crosswalk from the northeast to the southwest corner of the intersection. Plaintiff was carrying her purse and a pan in her left arm. She had a sweater, a “little sack” and a sack of doughnuts in her right hand or arm. When plaintiff reached the approximate center of the intersection she stepped into a hole with her left foot, her ankle turned, and she fell forward, face down. The force of the fall was “absorbed” by her right arm. The incident occurred in daylight at about 4:10 P. M. The weather was clear and dry.

The “hole” into which plaintiff stepped is more particularly described in evidence as one of two parallel ruts running the length of the intersection right in the center of Edmond Street. Plaintiff said the two ruts “sort of looked like two lines where old car tracks might have been”. The city’s street superintendent explained that the two ruts were caused by “the lapping of a machine that laid the pavement”. According to plaintiff’s evidence, the rut was 4½ inches wide and 1½ inches deep at the place where she stepped into it and fell. The rut was further described as “rough”, “uneven”, “ragged” and “jagged”.

In claiming to be innocent of negligence as a matter of law, defendant argues that the depth of the street defect (h/2 inches) was not sufficient to warrant submission of plaintiff’s case to the jury, “because there were no other circumstances adding to this depression”. We are thus invited to determine the liability or nonlia-bility of the city, as a matter of law, solely by applying a linear measure to the depth of the street defect, without taking into account any other attendant factor or condi tion. We are unwilling to rest our decision on a test of such limited scope — particularly when it is apparent from the record that there were other attending circumstances and conditions materially affecting the issue before us.

The additional factors which have been shown to exist and must be taken into consideration are here noted. The rut had dimensions of significance other than its depth of li/2 inches. It was shown to be 4½ inches wide and extended the length of the intersection. It was rough, uneven, ragged and jagged. The place where plaintiff stepped into it and fell was directly in the center of the crosswalk marked for pedestrian travel. The street defect in this case was located in one of the busiest intersections of the city where the attention of pedestrians was necessarily attracted by traffic signal lights, and would likely be diverted by the presence of other pedestrians negotiating the intersection at the same time on the same walk signal — possibly from twelve different directions.

All of the foregoing considerations have significant bearing on the question before us. As stated in 63 C.J.S. Municipal Corporations § 807, pp. 130-136,

“It has been said that there is no hard-and-fast rule as to the character or extent of a defect in a sidewalk or street that is necessary to impose liability on a municipal corporation, but whether a defect is such as to render the municipality negligent in permitting its continuance depends on the amount of travel on the street or walk, the actual location and nature of the defect, and the character of material with which the pavement or walk is constructed. The depth or height of a defect in a sidewalk cannot alone be the test of whether the municipality is negligent in allowing the defect to continue. In each case the way is to be pronounced sufficient or insufficient as it is or is not reasonably safe for the ordinary purposes of travel under the particular circumstances which exist in connection with that particular case, considering the nature of the place and such reasonable limitations as may be put on the use of the way for travel by virtue of other public necessities, convenience, and safety.
* * * * * *
"No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression necessary to convict a municipality of negligence in permitting its continued existence, and each case must be determined by its surrounding circumstances. So the determination of the question whether a crevice or depression constitutes an actionable defect cannot rest on the depth of the depression in inches only, but consideration must also be given to the amount of travel on the walk, the actual location and nature of the irregularity, and the character of the material of which the pavement or walk is constructed.”

Defendant relies principally upon three Missouri cases— Ray v. City of Poplar Bluff, Mo.App., 102 S.W.2d 814; Lundahl v. Kansas City, Mo.App., 209 S.W. 564; and Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487. These cases are not supportive of defendant’s present contention.

We view the Ray case as being unfavorable to defendant. The appellate court there clearly held that a cause of action was stated by a petition alleging that plaintiff’s fall was caused by a difference in elevation in two parts of a sidewalk amounting to from one inch to an inch and a half. The foregoing is the only unequivocal finding, pertinent to the instant question, contained in the opinion.

In the Lundahl case the court affirmed a judgment for injuries resulting from a fall caused by a difference in elevation of two sidewalk sections amounting to between two and three inches. The court said in its opinion: “The obstruction may be so great or so slight as that it could be declared to be, or not to be, negligence, as a matter of law. That in the present case is along the border line, and we think it should be left to a jury”. The foregoing decision is favorable to plaintiff in this case insofar as it holds that a two inch defect is sufficient to present a jury issue of the city’s negligence. The decision is unfavorable to plaintiff here in stating that a two (to three) inch rise was “along the border line”, because it invited inference by other courts that any street defect of lesser elevation should be held nonactionable as a matter of law. Incidentally, the “border line” statement was not necessary to a decision of the case. Nonetheless, it stands as a basis for the court’s decision in the Maxwell case.

The defect shown in the Maxwell case was a difference in elevation of two slabs of a concrete sidewalk amounting to one and a quarter inches at the point where plaintiff fell. No other defect or condition was proven or relied upon. In reversing a judgment for plaintiff the court there said:

“We have not found a case where the elevation extended so slightly above the surface and for so short a distance, and was the only defect relied upon, as the so-called defect in the case now before us. * * * If the offset in the surface of the street, of 2 or 3 inches, in the Lundahl Case is ‘on the border line’ between a defect to be left to a jury to say whether it is actionable, and one to be declared nonactionable as a matter of law, then it would seem that one inch less than that, as in the case at bar, is on this, or the nonliable, side of that line. Under all the circumstances, we are unwilling to extend the liability of municipalities to a slighter defect than any heretofore declared, so far as we have been able to find in the adjudicated cases”.

Despite the court’s statement in the Maxwell opinion that “we are unwilling to extend the liability of municipalities to a slighter defect than any heretofore declared” (two inches) this court can not say that the speaking court actually promulgated a rule to the effect that an obstruction in a sidewalk or street would be considered so trivial as not to be actionable unless its height was at least two inches — or any other given number of inches. The reversal of the Maxwell case was not based on an insufficiency of the sidewalk defect, but was due to the fact that the evidence showed plaintiff’s fall was caused by slipping on a small piece of ice — not by reason of the defect. Therefore, the references contained in the Maxwell opinion relative to the depth of a defect necessary for it to be considered actionable are not true judicial1 determinations to any greater extent than, are the “border line” expressions offered gratuitously in the Lundahl case. Nor are we aware of any decision subsequent to Lundahl and Maxwell which has had the effect of establishing an arbitrary mathematical rule to determine whether a street defect is actionable. This fact is apparently recognized by the defendant city. Its brief contains the following admission: “Defendant is aware that the Missouri appellate courts have seemingly chipped away at the doctrine stated in the Lundahl, Maxwell, and Ray cases, supra.”

Furthermore, we distinguish the Maxwell case from the instant case by the wide variance in the fact situations respectively shown. The Maxwell case was predicated on a single defect — the 1¼ rise. The evidence there did not show the accompanying presence of any other defect, condition or circumstance contributing to the sole hazard of the slight elevation. In the present case the street defect was directly in the path of pedestrian travel, in the middle of one of the busiest and most traveled intersections of the entire city. It was at a place where foot travel was controlled and complicated by traffic signals, and where pedestrians were subjected to the added distractions of motor traffic and the presence of fellow foot travelers traversing the intersection on the same signal. Additionally, the defect itself — the rut — had dimensions of length and breadth as well as of depth and was shown to be rough, uneven, ragged and jagged, all as we have noted. Other Missouri cases which have also differentiated Maxwell on the facts, essentially as we have done, include Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; Butler v. City of University City, Mo.App., 167 S.W.2d 442; Young v. Kansas City Public Service Company et al., Mo.App., 255 S.W.2d 113; Stratton v. City of Kansas City, Missouri, Mo.Sup., 337 S.W.2d 927; and Genova v. Kansas City, Mo.App., 254 S.W.2d 38.

Plaintiff finds ample support in Missouri decisions for the proposition that a street defect having a depth of one and a half inches may be considered actionable and that the determination of that question is for the jury. In Taylor v. Kansas City, supra, the sidewalk defect was an abrupt and semicircular slope of the sidewalk amounting to one and a half inches in eight inches. The Supreme Court refused to rule that the city was not liable for the defective street condition as a matter of law.

The condition complained of in Stratton v. City of Kansas City, supra, consisted of broken hexagonal blocks in a sidewalk leaving elevations between the edges amounting to between one-half inch and one and one-half inches. The court there held that whether the described defective condition made the sidewalk not reasonably safe and constituted negligence on the part of the city was a question for the jury.

In Young v. Kansas City Public Service Co. et al., supra, plaintiff was injured by stepping into a hole in the street at a street car stop. The hole was at least one inch deep and six inches in diameter. The court stated: “Under all the facts and circumstances, and under the holdings in the Taylor and Butler cases, supra, we are forced to the conclusion that the minimum dimensions of the hole, as described by plaintiff’s witness Mihlic, (1 inch deep, 6 inches in diameter), would not make the hole so trivial as to relieve the defendants of liability, but, on the contrary, made an issue whether the place was not reasonably safe”.

In Butler v. City of University City, supra, the defect was a depression in the sidewalk three-fourths of an inch to an inch and a half deep located at a bus stop. We quote the following from the opinion:

“In determining this question, no hard and fast rule can he applied. Each case must stand or fall on its own facts. A jury might reasonably find that defendant was negligent in permitting a one and a half inch hole to remain in a sidewalk at one location and was not negligent in permitting it to exist at another, depending upon the surrounding circumstances.
* * * * * *
“ * * * We do not believe that liability in such a case is a matter of inches, and we are reluctant to say to an injured person that he missed going to the jury by one-half inch, when from all the facts and circumstances a jury might reasonably find that the action of the defendant in allowing the hole to exist, whatever its measurements, was not up to the standard of conduct expected of an ordinarily prudent person”.

In Lithegner v. City of St. Louis, Mo.App., 125 S.W.2d 925, the court expressed views which we consider pertinent to the question here considered, quoted as follows:

“So far as we are advised, the legal concept of negligence has not been changed from the act or omission of a hypothetical figure which, for the purpose of the law, is referred to as an ordinarily prudent person, to a precise and mathematically certain number of inches and fractions of an inch in a case of this character.
* * * * * *
“If defendant’s contention that one and one-quarter inches of a depression in a sidewalk is not actionable negligence should he sustained in this case, there would be nothing to prevent a court from saying that a depression of one and one-half inches, then later one and three-quarters inches, and so on, is not negligence. We do not believe that the question of negligence can be reduced to fractions of an inch in the matter of instructions to the jury in a case of this character without completely destroying the legal concept of negligence as it has been traditionally known to the law”.

We rule that the trial court committed no error by overruling defendant’s motions for a directed verdict- and submitting' the issue of the city’s negligence to the jury.

Defendant’s second point is that the trial court erred in overruling its motions for a directed verdict because plaintiff was guilty ■of contributory negligence as a matter of law. Defendant urges that plaintiff was not exercising due care for her own safety because it is shown by the evidence that she was familiar with the intersection; that while crossing the intersection she was looking toward a drug store on the southwest corner (her destination) and not at the pavement; that she had been talking to Mrs. Whittaker; and, that she was carrying articles in both her arms. Defendant says it is clear from the foregoing circumstances that plaintiff was oblivious to her course of travel and was engaged in “stargazing”, as proscribed in Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566.

We note first that plaintiff testified she had no knowledge of the presence of the rut in the intersection. Therefore, she had a right to assume that the designated walkway was reasonably safe for her use. See cases cited and digested in 21A Missouri Digest, Municipal Corporations ^SOó (2). Plaintiff was not chargeable with knowledge of the defect by the mere fact that she was a resident of the city or that she was generally familiar with the intersection. See Roberts v. City of Piedmont, 166 Mo.App. 1, 148 S.W. 119. It follows that plaintiff’s duty as a pedestrian without knowledge of the defect was nothing more than to conduct herself as reasonable prudent persons do under the circumstances. She was not required “to search for a possible defect or make of * * * (herself) * * * a sidewalk inspector”. Kirk v. Kansas City, Mo.App., 128 S.W.2d 1128. Neither was she obliged to keep her eyes constantly upon the public way ahead. Clancy v. City of Joplin, Mo.App., 181 S.W. 120. Although pedestrians cannot be indifferent to dangers in their pathway, they are not required to keep their eyes fixed upon the sidewalk immediately in front of them. Little v. Kansas City, 239 Mo.App. 1007, 197 S.W.2d 1005. In Huffman v. City of Hannibal, Mo.App., 287 S.W. 848, 1. c. 849, the court said:

“The rule seems to be that, where plaintiff does not know of the obstruction and walks over the sidewalk in the manner that persons ordinarily do, and the obstruction or defect is not such as to be obviously apparent to the ordinary person, then it is a question for the jury as to whether plaintiff was guilty of contributory negligence. It is said in some of the cases that plaintiff, of course, may not be permitted to be stargazing and utterly disregard looking forward in the progress of the journey; but o.ur Supreme Court has also said time and again that a pedestrian need not be a sidewalk inspector. The pedestrian is not required to scrutinize closely the sidewalk, but he may assume that same is reasonably safe for travel”.

It is our judgment that under all the facts and circumstances shown in evidence, including those suggested by defendant, the issue of plaintiff’s contributory negligence was for the jury.

Defendant further assigns error in the ruling of the court admitting in evidence plaintiff’s Exhibit “I” — a photograph depicting the intersection as seen from the southwest corner looking to the northeast corner. Defendant’s complaint of the exhibit is that it did not show the “alleged defect in question”, but instead attempted to show “other defects in the street”, thereby misleading and confusing the jury, distracting the jury’s attention from the main issue in the case, and prejudicing the jury against defendant. The “other defects in the street” are described by defendant as a “sewer inlet * * * with loose gravel around it” and, as. shown in the picture, appear to be at the extreme southwestern point of the paved portion of the intersection where it abuts against the curb.

It is well established that the admissibility of photographic evidence is a matter largely within the discretion of the trial judge and that his ruling will not be disturbed on appeal unless that discretion is abused. See Brock v. Gulf, Mobile and Ohio Railroad Co., Mo.Sup., 270 S.W.2d 827 ; 20 Am.Jur., Evidence, Section 727, p. 607. The photograph in question was identified as a view of the intersection showing the exact course of plaintiff’s intended walk, from the northeast corner where she started, to her intended destination at the southwest curb.

The picture shows the spot where plaintiff fell and also shows the white painted lines extending from the curb at the southwest corner toward which she was walking, as well as from the curb at the northeast corner from which she walked. The exhibit shows the general conditions surrounding the scene of the accident and accurately represents the intersection. We believe that the above noted subject matter, as portrayed by the photograph, was relevant to the issues and aided the jury in arriving at a decision. We cannot agree that the exhibit was rendered objectionable or that it tended to prejudice the jury against defendant merely because it included the sewer grating at the southwest corner. Plaintiff never arrived at that point in her interrupted crossing of the intersection and it was not her contention that the sewer facility or its surroundings had any relevance to the causation of her fall. We rule that the trial judge did not abuse his discretion and committed no error by admitting the exhibit in evidence.

We finally consider defendant’s complaint that there was not substantial evidence to justify the verdict of $3200.00 and that such award is excessive. Our further review of the evidence discloses that after plaintiff fell in the street she was assisted to the curb and taken to her doctor’s office. She was suffering severe pain in her right shoulder, ankle and knee. Her right arm, shoulder, right breast and the right side of her body were black and blue. Her right knee was skinned and bleeding. Her left ankle was swollen and bruised. X-ray examination disclosed that she had a com-minuted fracture of the right shoulder. The doctor placed her in a complete arm cast, with the elbow in bent position. Plaintiff was taken to a hospital where she remained two days, suffering severe pain, nervousness and mental distress. She wore the cast two weeks. The cast itself caused discomfort and pain and prevented plaintiff from lying down. Because of it the doctor required her to sit up twenty-four hours a day and sleep in a chair. She slept very little, became very nervous and lost eight pounds. She developed a severe rash or hives — “some kind of reaction” — under the cast, all over her body‘and up into her hair and eyes. That condition lasted for three days. During convalescence plaintiff could not perform her housework or render assistance in her husband’s real estate business as she had formerly done, and she was unable to perform her personal habits without assistance. Plaintiff has been continuously under the doctor’s treatment since she was hurt. She is still going to him twice a week. On July 17th following her fall she returned to the hospital, and, under anaesthetic, underwent a forcible breaking of adhesions in the injured shoulder to give her better use of her arm. There is a knot on plaintiff’s shoulder blade behind the right shoulder. Plaintiff’s doctor testified that she had permanent disability known as a frozen shoulder — a condition which has limited the motions of her arm. It was the doctor’s opinion that at the time of the trial the injury had resulted in a 25% disability in the use of her arm. Plaintiff had incurred doctor, hospital and medical bills in the amount of $561.46 up to the time of trial.

In view of the foregoing evidence we are unwilling to say that the verdict is excessive.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Ruth J. TOWNSEND, Appellant, v. James Nelson TOWNSEND, Respondent.
    No. 23548.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    W. Raymond Hedrick, Lillie Knight, Kansas City, for appellant.
    Frank C. Rayburn, Anthony P. Nugent, Jr., Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Ruth Townsend (Miller) filed her motion to fix the custody of Sue Ann Townsend, aged 4 years, the minor daughter of herself and the defendant, James Nelson Townsend. On November 10, 1958, plaintiff had been granted an absolute divorce from defendant by the Circuit Court of Jackson County, Missouri, but the decree made no reference or order as to custody of this minor child, who at that time was nineteen months old.

These parties were married November 3, 1953, in Leavenworth, Kansas. At that time Mr. Townsend was 24 years of age and the plaintiff was three years older. This was Mr. Townsend’s first marriage and Mrs. Townsend’s third. The defendant has served in the United States Navy since 1947, and now is a chief petty officer —the highest noncommissioned rank. The child Sue 'Ann was born May 7, 1957. In August, 1957, defendant was officially transferred to Naples, Italy. His wife and daughter accompanied him there.

Marital difficulties arose. Plaintiff in her petition for divorce, filed September 3, 1958, charged that defendant “was morose, sullen and disagreeable and con-rtantly quarreled and nagged at plaintiff without just cause or provocation”. At the hearing on the motion to fix custody which was held August 24, 1961, she enlarged her complaints and asserted that defendant frequently struck and beat her, that on one occasion he attempted to throw her out of a fourth-story window, and once forced her to submit to sexual intercourse while their 15 month old child was in her crib in the same room, crying.

Mr. Townsend admits that he “paddled her” on a few occasions but denies he ever struck her otherwise or tried to push or throw her from a window. He says she drank too much, too frequently and neglected the baby; that on occasions he came home, found her under the influence of liquor and the baby soaking wet and unchanged. He says she developed a nervous and disordered condition and consulted a naval doctor about it. Plaintiff also visited a psychiatrist years later in this country, but says he gave her a clean bill of health. Plaintiff, on occasion, visited and was acquainted with a tavern in Naples, known as Moulin Rouge. She became personally acquainted with some of the “B-Girls” there employed. After separating from her husband, but while she was still in Naples, she saw two of these “B-Girls”, whom she then described as prostitutes, in the company of her husband. She learned also that these girls had spent several hours in her husband’s apartment. Mr. Townsend said he needed someone to clean up the apartment and do his laundry, that he was unable to secure help from the base to do this, so he employed the “B-Girls” to do the work.

It is now time to introduce Mr. Plubert F. Miller, the present husband of the plaintiff. Mr. Miller, too, is a long time career navy man. In 1957, he was in the same unit as defendant with a rank one step lower. Plaintiff says she got acquainted with him in September or October, 1957, about one month after her arrival in Italy. She says she would see him at parties or gatherings at various places. She disclaimed having dates with him in Italy, but admits she talked with him about her marital troubles and asked his advice on the subject.

Apparently the marital strife increased. Plaintiff discussed her troubles with the chaplain. She consulted the base legal officer regarding a separation agreement. On August 14, 1958, Mr. Townsend accompanied her to the base legal officer’s quarters where they examined a proposed separation agreement, made some changes and signed it before witnesses. This document contains twelve numbered articles of agreement. It first recites it is a “complete, final and effective decision of their respective rights, duties and obligations and holdings, and provisions made for the support of Sue Ann Townsend”. The separation agreement provided for division of their property. Thereunder M¿r. Townsend received the automobile and furniture, and Mrs. Townsend, 56 savings bonds, with a maturity value of $1400. The joint bank account ($1288.67) was deposited in trust for Sue Ann. We quote Article four in full:

“The party of the first part shall have complete and full custody and care of the minor child of this marriage, Sue Ann Townsend, the party of the second part, Ruth Jenkins Townsend, hereby relinquishing all claim to guardianship or custody of the aforesaid Sue Ann Townsend”.

As soon after signing this separation agreement as government transportation was available, the plaintiff returned to the United States and took up her abode with a Margaret Lander in Kansas City, Missouri. The petition for divorce which she filed September 3, 1958 — to which Mr. Townsend filed an entry of appearance— was taken up and plaintiff was granted an absolute divorce on November 10, 1958. Her petition alleged the birth of Sue Ann “who is presently in the custody of the defendant in Naples, Italy and the plaintiff is not seeking custody ■ of the said minor child”.

At about the time of the divorce — at least in November, 1958 — Mr. Hubert Miller returned to the United States on transfer to California. He stopped at New Bloomington, Ohio to visit his parents. F,rom there he called plaintiff by telephone at the residence of Margaret Lander in Kansas City, where she was staying. Plaintiff says she had not written Mr. Miller, advising him as to her address, but in any event, he located her by telephone and talked with her. Immediately after that conversation plaintiff bought a one-way ticket for New Bloomington and went there for the purpose, she said, of visiting Mr. Miller and his parents. After visiting there for a short time plaintiff and Mr. Miller left by automobile, heading west and staying at motels, where they registered as husband and wife. They passed through Kansas City and into Bartlesville, Oklahoma, where plaintiff became ill and was hospitalized. Her condition was diagnosed as pregnancy and on December 10, 1958, she gave birth to a male child. She says this child was born prematurely by three months and she was not aware of her pregnancy until a few days before the birth. On the birth certificate, Mr. Hubert Miller was registered as the father and the child was named Frederick Kenneth Miller. Thereafter for at least two years plaintiff corresponded occasionally with defendant but never did tell him about this child. Plaintiff and Mr. Miller were married on December 20, 1958, and there is a daughter born of that marriage.

We now return to Mr. Townsend and Sue Ann in Naples. After his wife left, the child was cared for a few weeks by Mrs. Boucher, a navy wife on the base. Then Mr. Townsend employed different women, mostly Italians and Yugoslavians, for the manifold duties of baby sitter, maid and laundress. He says the services of most of them were not very satisfactory.

Defendant says he first met his present wife Mary (Marica) Kucko in August, 1958. He employed her for household duties and child care about October, 1958. She was a Yugoslavian refugee and 20 years old. After a short time she returned to the refugee camp, where she remained until defendant “brought her back” in February, 1959. He said he was required to guarantee her food and shelter in order to get her released from the camp. Soon thereafter they began to live together as husband and wife. Mr. Townsend said they planned to get married but that before a service man overseas may do so, he must receive permission from the commanding officer and that such permission is never granted until the proposed non-American bride is investigated by the American Consulate, which usually takes some time. Defendant and Mary, or Marica, were married February 20, 1960, shortly after an illegitimate child had been bom to them. At the time of the trial she was pregnant and expecting a second child.

On September 22, 1960, Mr. Townsend, with his wife and two children, came to Olathe, Kansas, where he had been transferred. More than seven months later and on April 27, 1961, plaintiff filed in the Jackson County Circuit Court, her motion to fix the custody of Sue Ann Townsend. On August 25, 1961 she filed an amended motion to include the child Frederick Kenneth Miller, whom she therein-referred to as Townsend. The court placed custody of this second child with plaintiff, and neither party has appealed. Therefore, the matter of his custody or status is not before us.

Evidence was heard as to the custody-of Sue Ann on August 24-25, 1961. Both parents were present and represented by counsel. The step-mother, Mary Townsend, testified in person. The proposed step-father Hubert Miller, testified by deposition. Defendant and his family at the present time are residing in Georgia. Plaintiff and her husband at the time of trial and at this time are stationed and living in Kodiak, Alaska.

After hearing and considering the evidence the trial court ruled “that the custody of the minor child Sue Ann should be and remain in the defendant James Nelson Townsend with reasonable rights of visitation in the plaintiff”.

Plaintiff has appealed from the judgment and order denying her plea for custody. She says (a) there was no competent evidence to support the order; (b) it was error to hold that the welfare of the child would be best served by the award of custody to the father; (c) it was error to disregard defendant’s admission that the child was being denied the right to know her own mother, and (d) the undisputed evidence shows that defendant and his present wife are morally unfit to have the custody of the child.

As stated by this court in Edwards v. Edwards, Mo.App., 302 S.W.2d 37, 39:

“Under the Statute, Section 510.310, subd. 4 RSMo 1949, V.A.M.S., we are required to ‘review the case upon both the law and the evidence’ and arrive at our own conclusion as to what disposition of the child’s custody will be to its best welfare; ‘due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses’, and ‘the judgment shall not be set aside unless clearly erroneous’ ”.

Such a review requires a full presentation of the facts and careful consideration of those facts.

Section 452.120, V.A.M.S. provides:

“In all proceedings for divorce or ■other proceedings in which shall be involved the right to the custody and control of minor children, or their services and earnings, or the management of their estates, the rights of the parents shall be equal, and neither parent as such shall have any right paramount to that of the other parent, but in each case the court shall decide only as the best interests of the child itself may seem to require”.

Courts have said many times that custody of young children, especially girls, should be given to the mother, all things being equal, and if she is not demonstrably unfit. Paxton v. Paxton, Mo.App., 319 S.W.2d 280; Ballew v. Ballew, Mo.App., 288 S.W.2d 24.

The evidence here shows that ■both plaintiff and defendant engaged in extramarital activities during the transition period leading to their present marriages. While such behavior may. not be approved it does not mean that either is unfit to be a moderately good parent. Besides, in our selection of a child custodian here we are restricted to a choice between these two parents. The best interests of the child is our primary concern. Courts award such custody neither to punish one parent for bad behavior, nor to reward a parent for good behavior. We believe that as to this point the scales balance and neither parent has an advantage.

Defendant and Mr. Miller, plaintiff’s present husband, have similar occupations and close to equal incomes. Each has a wife and each has or soon will have two other children to support. Based upon these facts and the evidence heard, we believe that each family has been and likely would be furnished to a reasonable extent the necessities of life. There is actually no claim and certainly no proof that either of these homes is at the present time other than a home of peace, serenity and congeniality.

Appellant charges that defendant and his wife Mary are unfit to have custody of Sue Ann and that her best interests would be served if from now on she lived with plaintiff and Mr. Miller. In addition to her claim of moral unfitness, she says we should so conclude because (a) Mr. Townsend struck, beat and grievously mistreated her during their marriage; (b) Mary Townsend, the stepmother, is a Yugoslavian, who speaks broken English, who cannot and will not bring up Sue Ann in “American traditions” as completely and as well as plaintiff and Mr. Miller would; (c) Mary Townsend is a Catholic and the child is entitled to be brought up in a Protestant home and (d) The mother, rather than the father, is most influential in rearing a child, especially a girl, and it would be better for the child to be with her own mother.

The charge that Mr. Townsend beat plaintiff is disputed. Plaintiff did not so allege in her divorce petition and no witness from the Italian Naval Base or elsewhere, testified to observing visible marks of any beating on her. Moreover, it does not necessarily follow that if defendant did mistreat plaintiff that he would abuse the child and there is no evidence that he has done so. Plaintiff makes much of a letter which defendant wrote to her parents in which to them he accepted most of the blame for their marital troubles. His doing so, we think, was a considerate and courteous act.

It is true that Mary (Marica) Townsend is a Yugoslavian. She fled from that country to Italy and for a time lived in a refugee camp. She had an illegitimate child by defendant, but the explanation for their delayed marriage, namely that it took time to get consent of the commanding officer and have the Consulate investigation made sounds factually true. It is also true that she was born and is a Catholic, but by her testimony and Mr. Townsend’s, it appears the family has attended both Catholic and Lutheran services and the father, upon occasion, leads them in family prayers in the home. She is willing to leave the choice of churches to her husband. In reply to an inquiry if she thought there was any important differences as to churches, she said: “I think no. Because I think all over is one God". Mr. Townsend said they had considered both the Catholic and Protestant church; that he talked with a priest about it but met with difficulties regarding his divorce. He said he and his wife had definitely decided to go into a Protestant church, probably Lutheran. In addition, for whatever it may be worth, the evidence does not show that plaintiff holds membership in any church or that she ever regularly attended one.

It is true that Mrs. Townsend speaks broken English and sometimes speaks Yugoslavian to her brother, who lives in Kansas, and sometimes to the children. At the time of the trial she had been in the United States for only about one year. She testified orally at the hearing. A reading of the record reveals that she apparently understood the questions put to her and gave intelligent answers, although her grammatical construction was far from perfect. Appellant says she should have attended school to perfect her English and learn American ways and traditions. During her year in this country in addition to housekeeping duties, she has had two children to care for and is expecting another. If on the question of instilling “American traditions” in the child is meant the character traits of honesty, self-reliance truth, frugality and industry, we think these are as likely to come from a Yugoslavian girl as from some of our present generation native born Americans. However, we do believe that other things being equal, an American born and educated mother could better rear an American child in an American community than a foreign born mother could. The scales weigh in plaintiff’s favor on this point. Generally speaking, too, it is better for a child to be reared by its own mother, but it is also true that she should have her own father. She cannot in this case have both.

As we have read and considered the record in this case we are impressed, as we think the trial court was impressed, with the candor, fairness and good sense of defendant. He has a long time good record with the navy. He told about his marital troubles with the plaintiff but did not bemean or express hatred for her. He freely discussed his prenuptial relations with his present wife but said they had already agreed to marry and explained why the marriage consummation was delayed. After the plaintiff had visited the base legal officer in Naples and a tentative legal separation agreement had been prepared, he went there with her and signed it. He has carried out and lived up to the terms of that agreement. As a wise and thoughtful father would do in his circumstances, he considered both the Catholic and Protestant churches and finally came to a conclusion.

On the other hand, some of the plaintiff’s testimony strains our credulity and raises doubts as to her sense of responsibility and fairness. It is difficult for us to believe that she was six months with child and did not know she was pregnant. It is difficult for us to understand how Mr. Miller in Ohio was able to get her on the telephone in Kanses City at the home of Margaret Lander if she had not been in communication with him. We doubt if she would have bought a one-way ticket to Ohio to visit him if their earlier relationship in Italy had been purely platonic and if they had not already reached at least a tentative understanding. We think it likely that if defendant had beat and bruised her frequently in Naples she would either have mentioned it in her divorce petition or have produced some extraneous evidence of the fact. It appears to us that it was unfair and amounted to false dealing for her never to have mentioned the birth of the second child to its father, the defendant, for almost two years. Plaintiff concealed or did not reveal to the divorce court the existence of the property settlement and custody agreement. Her action in withholding a part of the whole truth amounted to less than candor and came close to misrepresentation. Certainly her action in now trying to secure custody of Sue Ann after her signed agreement before witnesses “relinquishing all claim to guardianship or custody of the aforesaid Sue Ann Townsend” is welching on that agreement and not keeping her word. Formerly, the law permitted a mother who signed a relinquishment and consent for adoption to renounce such agreement but by statute such a document is now made final and irrevocable. In addition, it seems to us that a mother, who voluntarily leaves her IS month old daughter in a foreign country and solemnly signs a document relinquishing all rights of custody to the father, should not be permitted to renounce such act at will, but only for very grave reasons.

No court possesses a crystal ball, endowing it with divine insight of Solomonic wisdom so that we can look into the future and see what the future of this child would be if left with the Townsends or if transferred to the Millers. We must place that custody in the light of what we know at this time. The child is just over five years of age. She has spent all of those years with her father and almost four years of it with her step-mother. Dr. George Lytton, psychiatrist, testified that he found Sue Ann to be a normal little girl in her present environment. He expressed the opinion that at this point her best interests would be served “by keeping her in her present family situation”. In his judgment, removal to new and different surroundings would result in a psychiatric trauma, the extent of which could not be accurately predicted. Our courts have recognized that shock is attendant upon such a removal.

In Davis v. Davis, Mo.App., 254 S.W.2d 270, 274, 275, the court reversed a modification order which took custody of a daughter eight years of age, from the father and gave it to the mother, saying:

“The modification ordered by the trial court would change the entire pattern of the child’s life and subject her to new routines and different standards of discipline. Except in cases of necessity such change is not desirable, For-dyce v. Fordyce, supra, and we find in this record no apparent necessity for thus upsetting the established order of things. At best, the change would be in the nature of an experiment, and experiments with a trust of this nature should not be indulged. Irvine v. Aust, Mo.App., 193 S.W.2d 336”.

The judgment of the trial court is entitled to great weight in resolving this matter. As stated by the court in Green v. Perr, Mo.App., 238 S.W.2d 924, 928:

“Because of the trial court’s better position to observe and appraise the human factors to be taken into account in fixing the custody of a minor child of divorced parents, the appellate courts have always recognized that the trial court’s decision in such a matter should not he lightly disturbed, but should rather be deferred to unless it is apparently in conflict with a clear preponderance of the evidence, or manifests an abuse of judicial discretion. Lutker v. Lutker, Mo.App., 230 S.W.2d 177; Martin v. Martin, Mo.App., 160 S.W.2d 457; Morgens v. Morgens, Mo.App., 164 S.W.2d 626”.

The trial court had no difficulty in deciding the contested issue of custody. The judge did not take the matter under advisement but entered his findings instanter. Contested custody cases requiring a determination as to what is now or may in the future be for the best interests of a child are usually close. The evidence here is not one-sided or overwhelmingly one way. However, we are inclined to the view that the conclusion reached below is the right one. That court had the opportunity of hearing, seeing and observing the contestants while we can only read the cold written transcript of their testimony. We certainly shall not say that the judgment entered should be set aside as clearly erroneous.

The judgment that custody of the child Sue Ann Townsend be and remain with the defendant and father James Nelson Townsend is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, G, is adopted as the opinion of the Court.

All concur.


author: McDOWELL, Judge.

text:
    Joe L. HARRISON, Administrator of the Estate of David Harrison, Deceased, Plaintiff, v. Walter WEISBROD, Jr., Administrator of the Estate of Harry Bess, Deceased, Defendant-Appellant, v. Edward Charles SHIRA, Defendant-Respondent.
    No. 8061.
    Springfield Court of Appeals. Missouri.
    June 5, 1962.

      Powell & Jones, Dexter, for appellant.
    Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, Frank Bild, St. Louis, for respondent.
   McDOWELL, Judge.

Defendant, Edward Charles Shira, recovered a judgment in the Circuit Court of Stoddard County, Missouri, on his cross-claim against defendant, Walter Weisbrod, Jr., administrator of the estate of Harry Bess, deceased, in the sum of $4150 for personal injuries and property damages sustained in an automobile collision December 18, 1957, at the intersection of U. S. Highways 61 and 67 in Jefferson County, Missouri. From this judgment the administrator appealed.

On March 3, 1958, Joe L. Harrison, administrator of the estate of David Harrison, deceased, brought an action in the Circuit Court of Butler County, Missouri, naming as defendants, appellant, Walter Weisbrod, Jr., administrator of the estate of Harry Bess, deceased, and defendant, Edward Charles Shira, respondent, for the wrongful death of David Harrison resulting from an automobile collision while riding as a guest in the car owned and operated by Harry Bess.

On March 31, 1958, defendant, Shira, filed his crossclaim against the defendant-appellant, as administrator of the estate of Harry Bess, deceased, seeking to recover personal injuries and damages to his automobile on account of the alleged negligence of Harry Bess.

On April 17, 1958, appellant filed his verified motion to dismiss the crossclaim of defendant, Shira, alleging as reasons therefor that since Harry Bess died instantly, at the time of the collision, and before David Harrison died, there was no cause of action for the death of David Harrison in existence at the time of the death of Harry Bess, and, since plaintiff had no right to sue the administrator of the estate of Harry Bess, deceased) respondent, Shira, could not interpose a crossclaim in this action. This motion was overruled by the court.

Appellant filed answer to the crossclaim of respondent wherein he pleaded a general denial and contributory negligence. Thereafter, by agreement, the hearing on the crossclaim was sent by change of venue to Stoddard County.

March 14, 1961, the cause was taken up for trial, a jury impaneled and sworn to try the crossclaim. Respondent’s attorney made his opening statement, respondent Shira was sworn and took the witness stand to testify. Upon objection to his testimony in regard to the collision under Section 491.090 V.A.M.S., he was prevented from testifying. Thereupon respondent, by his attorneys, dismissed the crossclaim without prejudice and the jury was discharged.

On March 15, 1961, respondent filed his motion to set aside the dismissal of his crossclaim and to reinstate the same which motion was, by the court, sustained March 20, 1961.

April 5, 1961, appellant filed a verified motion to dismiss the crossclaim and for reasons stated that since respondent had voluntarily dismissed his crossclaim without prejudice after trial had started, the court had no jurisdiction over the subject matter or over the person of appellant, the administrator of the estate of Harry Bess, deceased. This motion was by the court overruled. The cause was submitted to the jury on primary negligence, to-wit: that the said Harry Bess drove into the intersection at the said time and place when the stop light suspended over the intersection was red for traffic in the direction in which said Bess was driving and in violation of the statutory rules and regulations of the road. The jury returned a verdict in favor of respondent, Shira, for $3,000 for his personal injuries and $1150 damages to his automobile.

The undisputed evidence shows that the collision occurred about 9:00 o’clock A.M.,. December 18, 1957, at the intersection of U. S. Highways 61 and 67, about a mile and half or two miles south of Festus in Jefferson County; that highways 61 and 67, a paved four lane highway, runs north from the intersection toward Festus and St. Louis; that highway 67 runs south toward.' Poplar Bluff and 61, a two lane highway,, runs east toward St. Genevieve and Perry-ville ; that there is a dividing space between, the two south lanes and the two north lanes-in the four lane highway, both north and. south of the intersection; that there are-also left turning lanes for cars turning to-the left; that there are light signals at the-intersection alternately showing red for-stopping, green arrow for turning left and1, green for going ahead; that the collision, occurred near the center of the intersection,, with both cars facing in a westerly direction; that the front of the two cars collided; that respondent, Shira, had come south on 61 and 67 from near St. Louis and was-going to Perryville, which is on 61; that Harry Bess had left Poplar Bluff, which is on 67, about 120 miles south of Festus- and had planned and made arrangements to go to St. Louis to get his wife and! daughter; that respondent Shira sustained' personal injuries and his car was damaged’, in an agreed sum of $1150; Bess was killed, instantly and David Harrison, his passenger, died later the same day.

William Leland Reagan, a timber worker,, testified for respondent that on December 18, 1957, he lived 18 miles south of Festus; that on that day he traveled north on 67 in a Ford automobile and stopped on a red light in the outside lane of the intersection;, that he saw one car, and perhaps more, on-67 headed south; that as the green arrow came on the one car, he remembered seeing-on 67 facing south, which had stopped, started to make a left turn to go toward! Perryville on 61, and, at the same time, another automobile came from the east on 61,. crossed the intersection in front of witness and the collision occurred; that he was not sure whether or not there were any other cars in front of the Shira car but, if there were, he did not know what became of them; that his green light came on and he drove across the intersection, parked his car, and returned to the scene of the collision; that he saw the respondent get out of the car that had turned to its left and saw two men in the other car, neither of them moved; that he was still at the scene when the Highway Patrolman arrived; that he did not talk to him or tell him he saw the collision; that a few days later he saw a notice in the St. Louis paper inquiring if anyone had seen the collision and, in. response to this notice, called the telephone number therein, collect, reported he had seen the collision; that no name was given in the notice and witness did not know with whom he talked.

On cross examination Reagan testified that he did not know whether Shira was the man driving the car which turned to the left.

To impeach the witness, Reagan, appellant read in evidence a portion of his deposition in which he stated, when shown one of defendant’s exhibits, a picture of the Bess car, that he did not think it was the car involved in the collision; that he did not remember the date of the accident and he would not say whether or not Charles Shira had stopped at the intersection.

Highway Patrolman, Sergeant R. E. Butler, testified for respondent: That he arrived at the scene about 9:06 A.M., just after the collision occurred; that there was no one afoot when he arrived; that he did not recall seeing the witness, Reagan, and had no conversation with him; that he inquired of the people at the scene of collision if any had seen it and no one claimed to have seen it; that while there, respondent Shira told him that when he stopped at the stop sign, one car had stopped in front of him, and “When the light changed we started out, and this car hit me head-on”, and that the car in front of him must have gone on; that he did not see the Bess car until it hit him.

Respondent, Shira, did not testify.

Appellant filed a motion for directed verdict at the close of the evidence and, among the reasons assigned, stated that the evidence showed that Shira was guilty of contributory negligence as a matter of law. This motion was overruled. Likewise, appellant’s motion for directed judgment in accordance with his motion for directed verdict at the close of all of the evidence and in the alternative for a new trial was overruled.

The evidence shows that Harry Bess died December 18, 1957; that Shira’s crossbill was filed March 31, 1958. Appellant, Weis-brod had previously thereto been appointed as administrator of the estate of Harry Bess, deceased.

Appellant assigns as error the action of the trial court sustaining respondent’s motion to reinstate his crossclaim after respondent had been permitted to voluntarily dismiss the same without prejudice. It is contended that the order of dismissal is not a judgment and since the adoption of the new Code of Civil Procedure in 1943, such order cannot be set aside by the trial court under Supreme Court Rule 75.01, V.A.M.R., Section 510.370 RSMo 1959, V.A.M.S., nor under any other rule or statute.

At common law a judgment remained in the breast of the court during the term at which the judgment was rendered, and could be set aside, or modified by the court, as justice required, during said term, regardless of motions of any kind. Wooten v. Friedberg, 255 Mo. 756, 198 S.W.2d 1, 5[1]. However, under the new General Code for Civil Procedure that period is limited to thirty days after the entry of judgment. Civil Rule 75.01; Section 510.370 RSMo 1959, V.A.M.S.; Mid-States Equipment Corp. v. Hobart Welders S. & S., Mo.App., 233 S.W.2d 757, 758[1].

It was held in the last cited authority, 233 S.W.2d page 758[3], that:

“Under Section 119 of the Code, supra, the trial court, during the thirty day period after judgment, has the same inherent power, for good cause shown, to vacate a judgment as it did during the judgment term under the old practice. State ex rel. Iannicola v. Flynn, 239 Mo.App. 721, 196 S.W.2d 438.”

In the case at bar the trial court granted a motion for reinstatement of the cause of action and though the order recited that the motion to reinstate was sustained, in legal contemplation it will be deemed an action of the court of its own initiative, made at the suggestion of defendant. Clearly, the court did not exceed its jurisdiction as claimed by appellant. Mid-States Equipment Corp. v. Hobart Welders S. & S., Mo.App., 233 S.W.2d 757, 758 [4].

We agree with appellant that respondent’s voluntary dismissal of his cross-claim was not a dismissal with prejudice, nor a final adjudication upon the merits which would bar a subsequent action for the same cause nor was it an appealable judgment. Crispin v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153, 155 [1]; Potter v. McLin, 240 Mo.App. 708, 214 S.W.2d 751; Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456, 459 [4, 5].

In 17 Am.Jur., Dismissal, etc., § 113, page 179, the law is stated: “ * * * Where at the close of all the evidence, the plaintiff by leave of court dismisses his action without prejudice and subsequently the court makes an order vacating the dismissal, the effect of the vacation of the order of dismissal is to leave the cause of action as one pending and undetermined, and the procedure to be followed is a trial de novo.”

In 17 Am.Jur., Dismissal, etc., .§ 122, page 185, the law is stated: “On general principles, an oral motion for vacation of a dismissal and reinstatement of the action is undoubtedly sufficient where made before expiration of the term, since the court is then in position to vacate the dismissal on its own motion in the interest of justice and should treat the motion as a suggestion for the exercise of the power of the court. * * * ” Arpe v. Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 668; Snyder v. Christie, Mo.App., 272 S.W.2d 27; Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, 151 [6],

Under the new Code the right to-dismiss, without prejudice is not an absolute right. Smith v. Taylor, Mo.App., 289 S.W. 2d 134, 140[7]. The cases indicate that one reason for requiring a court order is for the purpose of giving persons affected an opportunity to object. Yet, the right to dismiss has been a well-established right throughout all of our procedure. McClellan v. Sam Schwartz Pontiac, Inc., Mo.Sup., 338 S.W.2d 49, 53[2].

Appellant concedes that before the adoption of the new Civil Code the trial court had inherent power to set aside most judgments or orders during the same term but, under the new Code such voluntary dismissal was not a judgment, and, therefore, the trial court was without power to reinstate the cause during the first thirty days after judgment. Appellant cites no authority to support this contention and we think that the power of the trial court on its own motion to set aside its order or judgment under the new Code is the same as it was at the common law except the time such action could be taken by the trial court is limited to thirty days instead of being confined to the term at which such order or judgment is rendered. We find that the adoption of the new Civil Code, Section 510.370 RSMo 1959, V.A.M.S., and Supreme Court Rule 75.01 did not, in any way, affect the inherent power of the trial court acting within thirty days, from setting aside its judgment or order. We find against appellant on this contention.

Under sub-section (B) appellant claims error on the part of the trial court in setting aside the order of dismissal and reinstating the cause for trial; in overruling appellant’s verified motion to dismiss respondent’s crossclaim; in overruling appellant’s motion for directed verdict at the close of all of the evidence; for the reason that after respondent voluntarily dismissed his cross-claim without prejudice, he was not entitled to have it reinstated; that the court no longer had any jurisdiction over the subject matter or the person of appellant, and had no right or authority to set aside the voluntary order of dismissal; that respondent’s only recourse was to file a new cause of action unless otherwise barred by law.

In the instant case the defendant’s cross-claim, if not reinstated, was barred under the nonclaim statute for the reason that more than nine months had passed.

We do not agree with appellant’s contention that the trial court, after permitting respondent to take a voluntary non-suit, was deprived of jurisdiction over the subject matter or over the person of appellant or that he had no authority to set aside the voluntary order of dismissal, and that respondent’s only recourse was to file a new cause of action unless otherwise barred by law.

The law was declared in Mid-States Equipment Corp. v. Hobart Welders Sales & Service, supra, 233 S.W.2d page 758 [3] that: “Under Section 119 of the Code, supra, the trial court, during the thirty day period after judgment, has the same inherent power, for good cause shown, to vacate a judgment as it did during the judgment term under the old practice.”

The effect of the subsequent order of the trial court vacating the dismissal is to leave the cause of action as one pending and undetermined, and the procedure to be followed is a trial de novo. 17 Am.Jur., § 113, page 179; 17 Am.Jur., § 122, page 185.

Under this authority we find that the voluntary nonsuit, when set aside by the trial court on its own motion, reinstated the cause of action as it was pending in the court prior to the voluntary dismissal; that the trial court did not lose jurisdiction over the subject matter or of the person by setting aside the voluntary nonsuit and reinstating the case for trial.

Appellant’s authorities to sustain his contention under this alleged error no way conflict with the law as we have herein stated.

In appellant’s argument he quotes from Supreme Court Rule 67.03, which is as follows: “A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred.” He argues that there was no similar statute before the enactment of the new Code in 1943. We agree with this contention. He states that under Civil Rule 67.01, which is the same as Section 510.130 RSMo 1959, V.A.M.S., to-wit: “A plaintiff shall be allowed to dismiss his action without prejudice at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterwards.”

He says that both of these rules are different to the statute as it existed before the new Code was adopted. He then reaches this conclusion: “Therefore, it is apparent that the Legislature intended in 1943, and the Supreme Court intended when it adopted its Rules of Procedure, that when a cause is dismissed without prejudice, it could not be reinstated, and that the only recourse was to bring another action for the same cause.”

We find that appellant’s argument does not take into consideration the fact that the trial court has inherent power within thirty days after the order or judgment of dismissal to set such orders aside and reinstate the case. Section 510.370 RSMo 1959, V.A.M.S.; Supreme Court Rule 75.01, V.A.M.R. We hold that this inherent power of the trial court was not changed by the adoption of the new court Rules of Civil Procedure.

Appellant cites Kane v. Kaysing Iron Works, Mo.App., 89 S.W.2d 532 as authority for his contention that after voluntary nonsuit was taken the trial court has no power to reinstate the cause within thirty days after judgment. This case merely held that a party voluntarily dismissing his cause of action after a jury was sworn and a motion to reinstate was overruled, could not appeal. The law is well settled on this point because there was no final judgment affecting the rights of the parties as provided by statutes controlling appeals. That, in no way, supports appellant’s contention that the trial court could not within thirty days after judgment set aside the order granting respondent the right to dismiss voluntarily or within such time reinstate the cause of action. None of the authorities cited by appellant supports his contention. We find the trial court did not err as claimed by appellant under sub-section (B) of point I.

Under point II appellant contends the court committed error in refusing to direct a verdict for him because under all of the evidence respondent was guilty of contributory negligence as a matter of law.

Appellant states that under the undisputed evidence respondent stopped at the intersection and then started forward to make a left turn and while in the act of turning collided with the Bess car; that respondent failed to see the Bess car before the collision although it was broad daylight and there was nothing to obstruct his view; that he was guilty of contributory negligence as a matter of law in failing to keep a lookout for and to see the Bess car, and that is true though the left turning light was in respondent’s favor.

The burden of proving respondent’s contributory negligence is on appellant. Before the court can declare that contributory negligence is shown as a matter of law, such negligence must clearly appear from admitted or conclusively proved facts. If reasonable men may honestly differ with respect to the inferences to be drawn from such facts then the question whether the driver exercised the care required for his own safety is for the jury. Zumault v. Wabash Railroad Co., Mo.Sup., 302 S.W.2d 861, 862 [1, 2]; Fugate v. St. Louis-San Francisco Ry. Co., Mo.App., 348 S.W.2d 718, 723 [3]; Creech v. Riss & Co., Mo.Sup., 285 S.W.2d 554; Slates v. Joplin Butane Gas Co., Mo.Sup., 315 S.W.2d 808, 812 [1, 2]; Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, 476 [3].

Under the law it is the duty of a motorist entering an intersection, to exercise the highest degree of care and maintain a careful and vigilant outlook ahead and laterally, and to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances. For where one is charged with a duty to look, and to look is to see, he must be held to have seen what looking would reveal. A green light does not relieve of this duty nor does it confer an absolute right to proceed across the intersection regardless of the movement of other traffic. The motorist is not entitled to rely solely on the favorable signals; nor is he entitled to drive blindly into the intersection without looking. The duty to be exercised remains commensurate with the circumstances, one of which, of course, is the green light in his favor. Witt v. Peterson, Mo.Sup., 310 S.W.2d 857, 860 [1-4]; Politte v. Miller, Mo.App., 301 S.W.2d 839, 842 [1, 2]; Douglas v. Whitledge, Mo. App., 302 S.W.2d 294, 298 [1, 3, 4]; Schmittzehe v. City of Cape Girardeau, Mo.Sup., 327 S.W.2d 918, 923; Lamfers v. Licklider, Mo.Sup., 332 S.W.2d 882, 887 [3] ; Orloff v. Fondaw, Mo.App., 315 S.W. 2d 430, 433 [4]; Lilly v. Boswell, 362 Mo. 44, 242 S.W.2d 73; Weis v. Melvin, Mo. Sup., 219 S.W.2d 310; Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455, 459 [3-5].

A motorist favored with a green light traffic signal has the right to assume that non-emergency vehicles approaching an intersection street will obey the red light and stop and to rely upon that assumption until he knows or, by the exercise of the highest degree of care should know the contrary. Politte v. Miller, supra, 301 S.W.2d page 842 [1-5].

The undisputed evidence is that the collision in question occurred near the center of the intersection; that respondent was driving south and stopped in the lane for left turn traffic only, waiting for the electric signal to indicate left; that at the time there was another car in front of him; that the left turn signal came on and the cars started out to make a left turn; that near the center of the intersection the Bess car hit respondent’s car headon; that he did not see the Bess car until it hit him. The evidence is undisputed that after the collision both cars were facing west. The only eye-witness to the accident testified that he was coming north on highway 67 and stopped for the red light at the intersection; that while stopped he observed respondent’s car on the opposite side of the highway, waiting for a left turn. He did not remember whether there were more cars stopped in that lane at the time or not. He testified that when the green arrow came on for respondent to make a left turn he started turning left. He didn’t know how far in the turn he was when witness saw the Bess car coming from the east, passing in front of him and saw the collision. He was not sure how fast the Bess car was going. There was no evidence offered by appellant from which the jury could determine where the Bess car came from or as to whether there was another car in front of respondent. There was no evidence offered as to the speed of the Bess car or as to whether respondent could have seen it had he been looking in time to have avoided a collision. We find that appellant failed to meet the burden of proof to show that respondent was guilty of contributory negligence as a matter of law. We find under the evidence that the question of contributory negligence was one for the jury and that the trial court properly submitted that issue to it.

Under point III appellant seeks to have the court declare that plaintiff, Joe L. Harrison, administrator of the estate of David Harrison, deceased, could not successfully maintain a cause of action against appellant, Walter Weisbrod, Jr., administrator of the estate of Harry Bess, deceased, since Bess died before Harrison and no suit for the wrongful death of Harrison was pending at the time Bess died, therefore, no action survived in favor of the administrator of the Harrison estate against the administrator of the estate of Harry Bess; that the petition filed by the administrator of the estate of David L. Harrison, deceased, against the administrator of Harry Bess, deceased, and against respondent, Shira, did not state a good cause of action because it did not allege Harrison died first; that since plaintiff, Joe L. Harrison, administrator of the estate of David Harrison, deceased, could not state a cause of action against appellant, as administrator of Harry Bess, deceased, the trial court had no jurisdiction over the subject matter in plaintiff’s petition and had no jurisdiction over the person of appellant, and, therefore, respondent, Shira, cannot assert nor maintain a crossclaim against the appellant.

We agree with appellant’s contention that an action for wrongful death can be maintained only as provided by statute; that no cause of action for wrongful death existed at common law. Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, 487 [2-4]; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Plaza Express Co., Inc., v. Galloway, 365 Mo. 166, 280 S.W.2d 17, 18 [4],

Respondent’s contention is that an action for wrongful death may be maintained against the estate of a deceased tort-feasor and this is true even though the tort-feasor died prior to the institution of the action.

The only statute that authorizes an action for damages for wrongful death is Section 537.080, RSMo 1959, V.A.M.S., which reads:

“Action for wrongful death—who may sue. Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered * * *

Appellant contends this section provides only for an action against the person or corporation causing the wrongful death; that it does not provide for an action against a person’s personal representative or administrator; that this section does not provide for the survival of a cause of action the deceased may have had but for a new cause of action.

In Frazee v. Partney, Mo.Sup., 314 S.W.2d 915, the Supreme Court held that causes of action accrued at the time of death and not at the time of discovery of identity of alleged tort-feasor. On page 918 [3] of 314 S.W.2d, the court stated: “Our death act creates a new and different cause of action not known to the common law.”

In Goldschmidt v. Pevely Dairy, 341 Mo. 982, 111 S.W.2d 1, 4 [7, 8], the court stated; “The wrongful death statute * * * created in the dependents of the one killed a new cause of action, and was not a provision for the survival of any action the party injured may have had.” Hendricks v. Kauffman, 340 Mo. 74, 101 S.W.2d 84, 86 [2-4].

Appellant contends that since Bess died before Harrison and no suit for wrongful death of Harrison was pending at the time Bess died, no action survives in favor of the administrator of the estate of Harrison against the administrator of Bess under paragraph 1 of Section 537.020 V.A.M.S., as amended in 1955.

This section provides: “Actions for personal injuries or death not to abate by reason of death. — 1. Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred. Causes of action for death shall not abate by reason of the death of any party to any such cause of action, but shall survive to the personal representative of such party bringing such cause of action and against the person, receiver or corporation liable for such death and his or its legal representatives.

“2. The right of action for death or the right of action for personal injury that does not result in the death, shall be sufficient to authorize and to require the appointment of a personal representative by the probate court upon the written application therefor by one or more of the beneficiaries of the deceased. The existence of the right of action for death * * * shall be sufficient to authorize and to require the appointment of a personal representative for the person liable for such death or injury by the probate court upon his death upon the written application of any person interested in such right of action for death or injury.”

Appellant contends that under paragraph 2 of Section 537.020 (above set out) an action can be brought against the representative of the wrong-doer only when the right of action for the wrongful death is in existence; that since there was no cause of action in existence against Harry Bess for the wrongful death of David Harrison at the time Bess died, the administrator of David Harrison’s estate had no cause of action against the administrator of Harry Bess; that the petition filed by the administrator of the estate of David Harrison against appellant and Shira, defendant-respondent, did not state a cause of action; that it was necessary for plaintiff, in order to state a cause of action, to plead David Harrison died before Harry Bess.

Supreme Court Rule 55.06, being the same as Section 509.050 RSMo 1959, V.A.M.S., and Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, 487[3] are cited to support this contention. An examination of these authorities show they do not sustain appellant’s contention.

In State ex rel. Anderson v. Dinwiddie, 359 Mo. 980, 224 S.W.2d 985, 989, the law is stated that an action for death shall not abate by reason of the death of the party liable for such, but shall survive against the legal representatives of such party and this is true even though the tort-feasor may have died before the suit was brought.

At the time the Dinwiddie case, supra, was written, the last sentence of paragraph 1 of Section 537.020 read: “Causes of action for death shall not abate by reason of the death of a party liable for such death, but shall survive against the legal representatives of such party.”

The last sentence of paragraph 1 of Section 537.020, as amended, reads: “Causes of action for death shall not abate by reason of the death of any party to any such cause of action, but shall survive to the personal representative of such party bringing such cause of action and against the person, receiver or corporation liable for such death and his or its legal representatives.”

From the changes, as above, appellant concludes that a suit in court for wrongful death must be brought before the death of the person who commits the wrongful act, and that the Dinwiddie case is not in point.

In State ex rel. McCubbin v. Ginn, Mo.Sup., 347 S.W.2d 119, the action was for wrongful death wherein both parties were killed instantly. In discussing Section 537.020 RSMo 1959, Judge Storckman, in a concurring opinion, on page 125, stated:

“Not only does § 537.020 RSMo 1959, V.A.M.S., provide for the survival of actions for personal injuries and wrongful death against the legal representatives of deceased persons, but it also authorizes and requires the probate court to appoint such a representative where the sole purpose is to prosecute a right of action for death or personal injury.”

We agree with respondent that the present statute plainly states that the action will survive “against the person, receiver or corporation liable for such death and his or its legal representatives”. This is what the statute said in the Dinwiddie case and we agree with respondent that that case is still in point. See Clarke v. Organ, Mo.Sup., 329 S.W.2d 670, 678, wherein the court stated that an action for wrongful death can be brought against the administrator of a deceased wrongdoer.

It is true that prior to July 19, 1948, actions for wrongful death did not survive the death of the wrongdoer. But, under the present statute the legislature expressed their intention that an action for wrongful death should survive the death of the wrongdoer. Under the present statute we think there can be no doubt but such actions do survive. The present statute is more specific and more detailed than the change of July 19, 1948, which first provided for such survival.

We do not agree with appellant that the words of the statute “any party to such cause of action”, as Section 537.020 now reads, means that a suit must be brought before the death of the tort-feasor. A definition of a cause of action in Black’s Law Dictionary, Third Edition, 1944, is “Matter for which an action may be brought”. We find that one can be a party to a cause of action before a-lawsuit-is begun. Appellant assumes that “cause of action” means a “suit”. We find this to be an incorrect assumption.

In Chestnut v. Mertz, Mo.App., 144 S.W.2d 194, 196 [2, 3], the court states: “A cause of action consists of those facts, as between two parties, entitling one of them to a judicial remedy of some sort against the other for the redress of a wrong.”

Thus, the change in the statute does not mean that a lawsuit must have been begun before the death of the tort-feasor. All that is necessary is that the cause of action be in existence.

Appellant contends that because Harry Bess died before David Harrison, no wrongful death action can be brought since Bess was dead at the time of Harrison’s death.

The wording of Section 507.080 RSMo 1959, V.A.M.S., is clear and provides for an action where a death is caused by a wrongful act, neglect or default of another. So the cause of action is based upon the negligence or wrongful act of the tort-feasor, and this wrongful act or neglect was in existence before'the death of Harry Bess.

Under the facts in the instant case we find that the trial court had jurisdiction over the subject matter and person of appellant and that respondent, Shira, could maintain his crossclaim against' appellant. Section 510.170 RSMo 1959, V.A.M.S. The authorities cited by appellant under subhead (H) in no way support his contention that the administrator of the estate of David Harrison did not state a cause of action against appellant and respondent, or, at least, a cause of action which could be amended.

Jurisdiction is not dependent upon the sufficiency of a complaint or the validity of plaintiff’s demand. Jurisdiction over the subject matter means the power and authority to hear and determine cer-tarn classes of cases. Circuit Courts of this state have jurisdiction to hear and determine cases of wrongful death, especially this is true where there has been no judicial determination as to which party died first.

Appellant cites Supreme Court Rule 55.49 and Section 509.460 RSMo 1959, V.A.M.S.; American Constitution Fire Assur. Co. v. O’Malley, 342 Mo. 139, 113 S.W.2d 795, 802[13, 14]; and State ex rel. Carney v. Higgins, Mo.Sup., 352 S.W.2d 35.

We have examined these authorities and find they do not sustain appellant’s contention.

Judgment affirmed.

RUARK, P. J., and STONE, J., concur.


author: HUNTER, Presiding Judge.

text:
    WADSWORTH HOMES, INC., a corporation, Respondent, v. The WOODRIDGE CORPORATION, a corporation, Defendant, Dan Boyle, Trustee; Passumpsic Savings Bank and Azimuth, Inc., Appellants.
    No. 23587.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Milton C. Clarke, Roy P. Swanson, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, Hale, Coleberd, Kincaid & Waters, Liberty, for appellants.
    James A. Moore, Laird P. Bowman, Kansas City, Gage, Hodges, Moore, Park & Kreamer, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is a suit in equity by plaintiff-respondent, Wadsworth Homes, Inc., to adjudicate and enforce a lien for materials furnished to nonappealing defendant, the Woodridge Corporation, for the erection of a residence upon certain real estate in Clay County, Missouri.

The real estate was subsequently (but pri- or to the filing of respondent’s mechanics’ lien statement) acquired from The Wood-ridge Corporation by appellant, Azimuth, Inc., which concurrently mortgaged it to Dan Boyle, Trustee for City-Wide Mortgage Company, which latter corporation in turn and prior to the filing of respondent’s mechanics’ lien statement, assigned the note and deed of trust to appellant Passumpsic Savings Bank.

Most of the pertinent facts were stipulated, and plaintiff provided supplementary evidence. The trial court held that a valid lien was established and entered judgment for $186.41, plus interest, and a lien declared superior to the rights of appellants. This appeal followed.

The Woodridge Corporation was a developer and builder of residences. Wads-worth Homes, Inc., was a manufacturer and seller of prefabricated homes of various designs and was well known as such in the building trades industry and to the general public.

Prior to December 21, 1959, the Wood-ridge Corporation obtained a conditional commitment for FHA loan guaranty for a number of houses to be erected in a subdivision where the property in question is located. The commitment was applied for under the provisions of Section 203(i) of the National Housing Act, Title 12, #1709(i) U.S.C.A., and the housing development in the subdivision is referred to by the parties as a “203 (i) project” and the houses as “203 (i) houses”.

The term “203 (i) houses” has a well understood meaning among builders, mortgage lenders and others connected with residential construction and lending. They are known to be a standard type of house constructed under rigid requirements of the FHA relating to minimum standards of construction, minimum square feet of space and like specifications, as shown by FHA regulations.

At the time of the commencement of the development of the subdivision the Wood-ridge Corporation arranged to purchase from Wadsworth Homes, Inc., prefabricated houses for the subdivision. Wadsworth Homes, Inc., prepared and supplied plans for such houses. The plans called for standard houses differing only in trim detail on the exterior front and the location of the kitchen on the left-hand or right-hand side of the houses. Wadsworth Homes, Inc., was to supply the materials for the particular house on order of the Woodridge Corporation as the latter completed the foundations. Such materials for each prefabricated house were to be completed except for plumbing, heating and wiring, and were to be supplied by Wadsworth Homes, Inc., on the site in three separate parts.

On May 29, 1959, upon notification by the Woodridge Corporation that it was desired, under Wadsworth Homes, Inc., Order No. 59-1014 the first shipment was made, and paid for in the sum of $307.65. On June 12, 1959, in accordance with instructions from the Woodridge Corporation, the second shipment was made, and paid for in the sum of $1,760.68. Pursuant to instructions the third and final shipment was made on December 21, 1959, and the Woodridge Corporation was billed therefor in the sum of $186.41 but no payment for this final shipment was made. The sum $186.41 was the remaining amount due under the contract specifying a sales price of $2,254.74.

Within less than six months and on June 6, 1960, Wadsworth Homes, Inc., filed its mechanics’ lien, the only questioned part of which reads :

“Invoice No. 6574:
Materials for Final Erection $186.41 [Plan Bel Rancho #3 K.L. (Truss Roof)]”

Appellants contend the trial court erred in declaring respondent to be entitled to a valid lien for the reason that respondent’s lien statement does not describe the nature and quantity of the material supplied, nor give a just and true account as required by the lien statute. Appellants concede respondent furnished all the materials contracted for which were for the agreed price and of the reasonable value stated. They also admit that all of the contract price has been paid and properly credited, except for the sum of $186.41, which is still owing. They question only the technical adequacy of the lien account as contained in the lien statement.

Section 429.080 RSMo 1959, V.A.M.S. provides in part that to obtain a valid lien requires the timely filing with the circuit clerk of “ * * * a just and true account of the demand due him or them after all just credits have been given * *

While modern decisions recognize that the mechanics’ lien statute, which gives to contractors, subcontractors, materialmen, and laborers a rather extraordinary remedy, is just in principle and should be liberally construed, the fact remains that there must be substantial compliance with the requirements of the statute in order for one to avail himself of its benefits.

It is also recognized in the cases that the legislative purpose of requiring the filing of the “just and true account” is so that the landowners and others interested may learn from the lien statement what the lien claimant asserts he has furnished, thus permitting an investigation to be made to determine whether the materials actually went into the building; whether they were lienable items, and whether the amount charged is proper. Grace v. Nesbitt et al., 109 Mo. 9, 18 S.W. 1118; State ex rel. O’Malley v. Reynolds, 266 Mo. 595, 182 S.W. 743.

The cases clearly indicate that where a lien claimant is an original contractor and has made a lump sum contract with the landowner, his lien account may be stated in a lump sum and need not be itemized in order to be considered sufficient. The reason ordinarily given is that the landowner is bound by his contract and should be familiar with the items required for a compliance therewith. Mississippi Woodworking Company v. Maher, Mo.App., 273 S.W.2d 753; State ex rel. St. Francois County Building and Loan Ass’n v. Reynolds, 288 Mo. 522, 232 S.W. 1035.

In McCarthy Lumber & Const. Co. v. Kinder, 206 Mo.App. 287, 225 S.W. 1024, an action was brought by the original contractor to recover $960.19 as the balance due from defendants for material and lumber furnished in the erection of a dwelling and to establish a lien therefor. There, as here, the contention was made that the lien statement was fatally deficient for its failure to itemize the material and labor provided. The questioned portion of the lien statement read:

“Oct. 15/15. To contract for erection of residence as agreed, including the omission of fireplace, flue, and foundation for same.?2,376 00 25. To enlarging basement as agreed 64 00. ”

The St. Louis Court of Appeals ruled, loe. cit. 1026:

“(1) By reference to the terms of the contract it will be noted that the statement is as definite as the contract, and a lien statement which is as definite as the contract under which it is furnished is sufficient, and if a lumping price was agreed upon no other price could have been specified, so that the account would have been a just and true one. Grace v. Nesbitt, 109 Mo. 9, 18 S.W. 1118.
“(2) Defendants contend, however, that even though the price could be a lump price, yet the items going to make up the whole for which the lump sum is charged should be set out. But this court held, in Mahan v. Brinnell, 94 Mo.App. 165, 67 S.W. 930, that when the lien is filed by the original contractor, who has specifically agreed with the owner to do the job for a certain price, a detailed statement of the items of material and labor that entered into the improvement is not required, as the owner knew what he bargained for when he agreed on the price, and need not be apprised of the basis of the charge by an enumeration of the items of material that went into the construction or improvements as agreed upon, and we have found no decision in this state holding to the contrary, where the matter was before the court upon this identical proposition.
“Defendant Kinder presumably knew what he was contracting for when he agreed to pay a specified price for the erection of a specified building; and where the contract, as here, was to erect a bungalow dwelling in accordance with plans and specifications for a particular sum, then the statement is as definite as the contract, and we think that under the particular facts in this case these items are sufficient.”

The above cited opinion was reviewed by our Supreme Court in State ex rel. St. Francois County Building and Loan Ass’n v. Reynolds, supra. After reviewing numerous earlier cases, the Supreme Court in upholding the St. Louis Court of Appeals’ opinion held, 232 S.W. loc. cit. 1037: “Where the proof shows that a definite price has been agreed upon between the contractor and the owner for a completed structure, there is no need to set out the items of the various materials furnished and the labor performed in complying with such contract, and a statement of the fact of such contract having been made at a definite price and performed is a sufficient account of the demand under the statute as to that item. We therefore hold that the opinion of respondents in this respect is not in conflict with the cases designated by relator.”

In State ex rel. St. Francois County Building and Loan Ass’n v. Reynolds, supra, the Supreme Court cited with approval Hilliker v. Francisco, 65 Mo. 598, where the statement of the lien account was: “To Junction City stone furnished for First National Bank building, as per contract, and labor setting same * * * $7,790.00.” This statement was ruled to be a substantial compliance with the applicable statutory requirements for a valid lien.

In Mississippi Woodworking Company v. Maher, supra, the St. Louis Court of Appeals cited State ex rel. St. Francois County Building and Loan Ass’n v. Reynolds, supra, but noted that a different rule applies when it is a subcontractor who is asserting the lien for the reason that there is no contractual relation between him and the landowner and hence the action is in quantum meruit for the reasonable value of the labor and materials furnished.

In Leach v. Bopp, 223 Mo.App. 254, 12 S.W.2d 512, loc. cit. 514, the court noted the difference in the rule to be applied where the claimant was a contractor suing on a lump sum contract as distinguished from a subcontractor suing in quantum meruit, stating: “Again, after much prior confusion, it is now firmly settled in State ex rel. v. Reynolds, 288 Mo. 522, 232 S.W. 1035, that, where a definite price has been agreed upon between contractor and owner for a completed structure, the contractor’s lien statement need not set out the items of various materials furnished and the labor performed in complying with such contract. A statement of the making of such contract and its performance is sufficient.” To the same effect see the recent case, K-V Builders, Inc. v. Thomas, Mo.App., 353 S.W.2d 130, 135, wherein the St. Louis Court of Appeals stated, “ * * * the plaintiff could merely have stated the lump sum provided by the contract as a statement of account, State ex rel. St. Francois County Building & Loan Association v. Reynolds, 288 Mo. 522, 232 S.W. 1035. Had it done so, plaintiff would not have had to set out the various items of various materials furnished and labor performed, Mississippi Woodworking Company v. Maher et al., Mo.App., 273 S.W.2d 753.”

Respondent contends that it is entitled to have the validity of its lien statement measured by the rule that applies to a lien claimant who is an original contractor proceeding to assert the lien against the landowner under a lump sum contract. We agree with this contention.

At the time the contract between Wadsworth Homes, Inc. and the Wood-ridge Corporation was entered into, the latter was the owner of the land involved. The contract was for a certain prefabricated house (exclusive of foundation, plumbing, heating and wiring) known as a Bel Rancho No. 3 K.L. to be supplied by-Wadsworth Homes, Inc. to the landowner Woodridge Corporation for a stated lump sum price, namely, $2,254.74. This was by a purchase order dated May 25, 1959. Pursuant to that contract the house materials were furnished the Woodridge Corporation long prior to any transfer of the land by Woodridge to appellant Azimuth, Inc. on April 25, 1960. Under such circumstances Wadsworth Homes, Inc. as the general contractor, was entitled to file its lien statement and to have it tested by the law applicable to a lien claimant who is a general contractor proceeding under a lump sum contract with the landowner. Azimuth, Inc. or any one else who later dealt with the property or a right therein could plainly see that a new house had been constructed or was in the process of construction on the premises. This was at least general notice that a workmen’s lien might be asserted. Cf. Tull v. Fletcher, 196 Mo. App. 573, 196 S.W. 436; McAdow v. Sturtevant, 41 Mo.App. 220; Hydraulic Press Brick Co. v. Bormans, 19 Mo.App.664.

As earlier mentioned, all of the parties agreed that the two earlier deliveries had been paid for and that proper credit had been given for those two payments. It is also conceded by all that the third delivery was made and that $186.41 is the correct amount owing on it and on the account. Under such circumstances we rule that the lien statement of the balance owing is a substantial compliance with the statute. See, Ridge v. Mercantile Loan & Trust Company, 56 Mo.App. 155, 159(4); Nelson Mfg. Co. v. Doherty, Mo., 191 S.W. 983. In the latter case, 191 S.W. at page 985, the Supreme Court en banc stated, “We are satisfied from the record that all of the parties interested in this matter, including appellants, acted upon the theory that the account was settled to the date of said receipt, and hence respondent did not waive its mechanic’s lien by failure to set out as a part of its itemized account those materials included in above settlement.”

Looking to the entire lien statement and testing the sufficiency of its “just and true account” by the rule applicable to a general contractor asserting a lien claim against a landowner with whom it has a lump sum contract, we conclude that the lien statement is sufficient and is a substantial compliance with the requirements of the lien statute, Section 429.080 RSMo 1959, V.A.M.S. The Woodridge Corporation is able to look to its mentioned contract consisting of the price schedule and purchase order and ascertain what items have been furnished as required by the contract.

It is noteworthy that all the parties have stipulated in the trial court as follows:

“10. The third and final shipment described above was furnished to the above described property and was used in, to and for the residence assembled thereon, and it is stipulated and agreed that the said $186.41 constitutes the reasonable value of said shipment.
“11. The said shipment was furnished by Wadsworth Homes, Inc., upon the credit of the building and the real estate above described, and Wadsworth Homes, Inc., relied upon its right to a mechanic’s lien upon and against the said real estate and improvements when the shipment was supplied.
* * * * * *
“14. It is stipulated and agreed that if plaintiff Wadsworth Homes, Inc., is entitled to a mechanic’s lien under its lien statement filed June 6, 1960, as above described, said mechanic’s lien is superior to any right, title or interest ■of the defendants, the Woodridge Corporation, Dan Boyle, trustee, Passump-sic Savings Bank and Azimuth, Inc.”

We have examined all of the cases cited by appellants and find nothing in them contrary to our expressed views. In the main those decisions concern suits based on quantum meruit rather than on a definite lump sum price agreed upon in the contract. See, K-V Builders, Inc. v. Thomas, supra, 353 S.W.2d loc. cit. 135(2-4).

For the reasons stated we hold that the trial court did not err in its judgment declaring the asserted lien to be valid and superior to any right, title or interest of the defendants.

The judgment is affirmed.

All concur.