author: CROSS, Judge.

text:
    SOUTH SIDE REALTY CO., Inc., Respondent, v. Robert L. HAMBLIN, Appellant.
    No. 24116.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Deb. 1, 1965.

      Rufus Burrus, Independence, for appellant.
    Thomas J. Daly, Linde, Thomson, Van-Dyke, Fairchild & Langworthy, Kansas City, for respondent.
   CROSS, Judge.

In this jury waived case the trial court found that plaintiff was entitled to recover of defendant the sum of $1137.00 as real estate sales commissions and entered judgment accordingly. Defendant appeals.

Plaintiff South Side Realty, Inc. prosecutes this action as the successor of Mrs. Billie E. Mills, a licensed real estate broker who formerly was engaged in business as an individual under the name “South Side Realty Company”. Mrs. Mills is president, treasurer, manager and principal stockholder of plaintiff corporation. According to Mrs. Mills’ testimony, when the corporation was formed in May, 1952, “We took the assets, including the office fixtures and all assets of the company, which was South Side Realty Company, and transferred them to the corporation”. In particular, she assigned to the corporation all her right in a certain contract which is the subject matter of this action.

Defendant is a real estate subdivider, builder and developer. In the year 1952, while Mrs. Mills was doing business under the name “South Side Realty Company”, and prior to the formation of plaintiff corporation, she owned ten large lots in Blue Ridge Ranch Estates, a subdivision in Jackson County, Missouri. On February 25, 1951, she and defendant entered into a written undertaking entitled “Real Estate Contract” whereby she agreed to sell and convey her ten building lots to defendant for the price of $5,400.00. It was additionally provided in the written agreement as follows:

“It is agreed and understood between buyer, builder and seller that South Side Realty Company, 4060 Troost Avenue, is to have exclusive sale right until sold on each and every house built on above lots”.

With reference to the foregoing quoted contract provision, plaintiff pleads in its petition that “As part of the consideration for Billie E. Mills’ promise to convey the said lots, the defendant gave to Billie E. Mills the exclusive sale right, until sold, on each and every of the said lots on which the defendant should build a house. Commission due to Billie E. Mills on the sale of said lots was to be five (5) per cent”.

Mrs. Mills testified that the lots were reasonably worth considerably more than the contract price, but that “the price of the lots was lowered in order to give the buyer, who was the builder, an advantage in outlay of cash. The difference was taken into consideration and was discussed at the time is why our exclusive sale right was put in there”.

Pursuant to the written agreement defendant duly acquired title to the ten lots and proceeded to construct houses upon them — “two or three houses at a time”. He built a total of ten houses — one on each lot.

Mrs. Mills testified that as soon as the first houses were completed she started advertising and offering them for sale, holding them open on weekends and endeavoring to sell them. She sold five houses and received full five per cent commissions on those sales except in one instance where she divided a commission with another agent.

Sometime early in 1953, defendant authorized other real estate agents to sell the remaining five houses. Mrs. Mills learned in March, 1953, that the other agents were showing the properties. She testified that upon protest to defendant “he said that we would get our commission”. Mrs. Mills continued to try to sell the houses “with those other brokers on the scene”. She stated, “We advertised them, we held them open, continued working on them”. Under those conditions the remaining five houses were sold by persons other than Mrs. Mills. She testified, “One by one they were sold and he didn’t pay us our commission and in May of ’53 we protested to him regarding it. * * * He said that we would get our commissions when he got his money, when they were closed”.

Over objection by defendant, Mrs. Mills' testified that the term “exclusive sale right” as used in the written agreement, means, as a matter of custom, to the people engaged in the sale of real estate in the Kansas City area, that “the firm that is given exclusive sale right is to receive a full commission on each and every house sold that it covers, regardless of who sells the house. If the owner was to sell the house, they are still obligated to pay the agent a commission. They have their advertising costs and other costs involved, and that’s a protection”. She further testified that the customary commission being paid in February, 1952, was five per cent, that she discussed that figure with defendant, and that he knew she expected five per cent.

In his testimony defendant admits that Mrs. Mills sold “some” of the houses he had built and that she was paid commissions on the ones she sold. He does not dispute her testimony relative to the number of sales' she made or that her commissions were paid at the rate of five per cent.

While still engaged in building the houses, defendant communicated to her his “dissatisfaction” with her efforts. According to defendant “the houses weren’t moving”. After informing her that he was going to give the houses to other realtors, he did in fact give such authority to other real estate agents, who sold the remaining five houses.

Relative to the meaning of the contract language “exclusive right until sold”, defendant admitted that it meant to him “You would have to pay the commissions to the agent to whom you granted the exclusive right”. In answer to the question, “How did she get into the picture of selling the houses at all?”, defendant stated, “It was some part, maybe of the transaction of the land, sir”. Defendant further testified that he never revoked Mrs. Mills’ contract in writing and that he never told her he was revoking her contract. Defendant was unable to state in any particular what Mrs. Mills was not doing “that was causing these houses not to be sold”. Other than the fact the houses were not being sold “he knew nothing about the performance of Mrs.' Mills out there”.

Relying on the written agreement, plaintiff filed this action within the ten-year period of limitation provided by Section 516.110 V.A.M.S. but beyond the five-year period provided by Section 516.120 V.A. M.S. It has been defendant’s position that this action is subject to the five-year limitation statute and consequently barred. The question was first raised by defendant’s timely motion to dismiss and has otherwise been preserved for review.

The trial court by its finding and judgment in plaintiff’s favor has effectively ruled that the ten year statute applies. In his first two points, defendant charges the court with error in so ruling. Section 516.-110 V.A.M.S. provides that certain actions shall be commenced within ten years, including “an action upon any writing, whether sealed or unsealed, for the payment of money or property”. Section 516.120 V.A. M.S. prescribes the nature of actions that must be brought within five years, included among which are “All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110 * *

In presenting this point, defendant quotes and relies upon the following interpretation given the ten-year statute in Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62, 111 A.L.R. 976:

“To come within the ten-year statute, ‘it must appear * * * that the money sued for is promised to be paid by the language of the writing sued upon’; and ‘unless the payment of the money sued for was promised by the terms of the writing, either in express language or by language which is tantamount or equivalent to such promise,’ the ten-year statute does not apply. ‘If a promise to pay the money sued for does not arise from the language of the writing itself, but the obligation or liability of defendant therefor is one implied by law from the transaction or one that arises only upon proof of extrinsic facts,’ then the action is within the five-year statute”.

Referring to the words of the writing upon which plaintiff relies, to-wit: “It is agreed and understood between buyer, builder and seller that South Side Realty Company, 4060 Troost Avenue is to have exclusive sale right until sold on each and every house built on above lots”, defendant says it will be noted that no promise to pay any amount as a commission was stated. Admitting “The most that would be possible is an implied promise by the terms ‘exclusive sale right’ ”, defendant argues that there is “no formula for determining what commission rate would be paid, and on what amount it would be computed, — all of which would depend upon proof of extrinsic facts”. Further arguing, defendant submits that even if the writing contained a promise to pay a commission the amount thereof is not determinable without proof of extrinsic facts as to amounts of sale price and the rate of commission.

It is not necessary, for application of the ten-year statute, that the writing sued upon contain a promise to pay money stated in express terms. It is sufficient if the language of the writing is susceptible, by fair implication, to the construction that it amounts to such a promise. In Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32, the Supreme Court stated, "Our courts hold that though the language of the writing sued on does not contain a promise in express terms to pay the money sued for, yet if by fair implication such promise arises from the language of the writing itself, the ten-year statute applies”. Also see Martin v. Potashnick, 358 Mo. 883, 217 S.W.2d 379.

While it is the recognized rule that the ten-year statute does not apply where the obligation or promise to pay money arises only upon proof of extrinsic facts, it is also the law that "if the language of the writing, by fair implication, is susceptible to the construction that it contains a promise to pay money there can be no objection to the fact that the precise sum to be paid is contingent or conditional and to be ascertained after the promise to pay has been made. Lorberg v. Jaynes, Mo.App., 298 S.W. 1059; annotation (Limitation of Actions — Written Promise), 111 A.L.R. 984. Once, by fair implication, the obligation is found, the exact amount to be paid or other detail of the obligation may be shown by extrinsic evidence”. Martin v. Potashnick, supra. Also see Brown v. Irving, Mo.App., 269 S.W. 686; Annotation — Limitations—Evidence Dehors Writing — 129 A.L.R. 603.

With reference to the question at hand, it is our opinion that the language of the contract which grants the “exclusive sale right” to South Side Realty Company (which was one and the same as Mrs. Billie E. Mills) also connotes an understanding and agreement on the part of defendant that he would compensate his authorized agent for her professional service rendered in effecting the sale of his houses by the payment of real estate commissions. Hence, it is our conclusion that, by clear implication, the contract language contains a promise on the part of defendant to pay money.

The promise to pay commissions, having been found “by fair implication”,, the formula for determining the amount thereof is readily and appropriately found in the transcript of evidence. Without dispute, the aggregate of the sales prices defendant received for the five houses sold by others than Mrs. Mills amounted to $64,000.00. The applicable rate of commission is clearly shown in evidence to be five per cent. The trial court properly ruled that the action came within the ten-year statute.

Defendant further insists that plaintiff is not entitled to recover because the written agreement lacks mutuality in that the “South Side Realty Company” is not bound to perform any service. In so contending defendant relies upon the general rule that mutuality is essential to the validity of a contract for services.

The contract sued upon by plaintiff involves subject matter and considerations other than the mere rendition of service. The agreement provided that Mrs. Mills would sell ten building lots to defendant for $5,400.00. She testified that the monetary consideration for these lots-was a substantial sum less than their fair market value. Her willingness to sell the property at the reduced price is explained by her testimony that she did so “in order to give the buyer, who was the builder, an advantage in outlay of cash. The difference was taken into consideration and was discussed at the time is why our exclusive sale right was put in there, so that we would get the balance of our money from the lots through the commission on the sales of the houses”. This testimony receives a degree of corroboration from the defendant. In response to the question “How did she get into the picture of selling houses at all?”, he answered, “It was some part, maybe, of the transaction of the land, sir.” Thus it appears that the primary obligation imposed upon Mrs. Mills by the agreement was to convey her real estate to defendant. In effect, she purchased her “exclusive sale right”—at the price of accepting a sum less than the reasonable value of her lots—and defendant obtained a “bargain” in his purchase of the lots by giving, in return the exclusive sale right. Thus we find in the contract both mutual obligation and mutual benefit The authorities cited by defendant involve the rendition of services only and are not in point.

We further believe that the agreement itself contains the implication that Mrs. Mills was obligated to exert reasonable effort, as a licensed realtor, to sell the houses under her grant of exclusive authority. Defendant’s contention otherwise is inconsistent with the interpretation he himself placed on the contract long before it became the subject of this suit. He testified that after some of the houses had been built he called Mrs. Mills at her office and complained about her not “moving” the houses, and thereafter authorized other agents to sell them. These acts and statements reflect defendant’s understanding of the writing to be that Mrs. Mills was bound by its terms to exert reasonable efforts toward selling the houses. It is well established that the interpretation placed on the contract by the parties prior to the time it became a matter of controversy is entitled to great, if not controlling, influence in ascertaining the intent and understanding of the parties and courts will generally follow such practical interpretation.

Defendant next complains that the writing is so vague and indefinite as to render it void and unenforceable for uncertainty. This complaint is not developed in any particular and is supported only by citation and quotation from authorities which we do not consider in point. Our discussion of the previous assignment 'is applicable to the instant point and effectively disposes of it

In his final point defendant contends that South Side Realty Company was a co-partnership composed of Billie E. Mills and one Bill Eugene Musgrave and that the assignment of the “exclusive sale right” by copartner Mills to plaintiff corporation did not convey the outstanding interest of copartner Musgrave therein. Therefore, says defendant, there was a failure of proof of a property interest in plaintiff corporation necessary to entitle it to maintain this action.

Defendant makes this contention on the basis of a document which does not appear in the transcript of the trial and appeared for the first time as an exhibit attached to the motion for a new trial, same being a photostatic copy of an application for a co-partnership real estate broker’s license, filed by Mills and Musgrave, bearing the date February 14, 1951.

The contract in suit was entered into on February 25, 1952—more than one year after the date of the document defendant exhibits. What occurred within the interim is not shown by the record—understandably, because the documentary evidence was not produced by defendant until after the trial was closed.

The testimony before us, given by Mrs. Mills, shows that when she made thé contract with defendant she was an individual doing business as “South Side Realty-Company”. There is nothing in the tram-script of evidence to show otherwise. Even if the after trial exhibit should be considered as competent evidence, we would not be constrained to find that Mrs. Mills was party to a copartnership in 1952 merely because that might have been her status in 1951. We rule the point against defendant.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CROSS, Presiding Judge.

license: Public Domain

text:
    NORTHWESTERN MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. A. H. HAGLUND, Defendant-Third-Party Plaintiff, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Third-Party Defendant-Appellant.
    No. 23966.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.
    Richard P. Sprinkle, Kansas City, for appellant.
    Paul H. Niewald, Kansas City, for respondent
   CROSS, Presiding Judge.

An automobile belonging to one Irl B. Wasson, Jr., and insured against collision by plaintiff Northwestern Mutual Insurance Company, was damaged by collision when driven by defendant A. H. Haglund with Wasson’s consent. In accordance with the terms of its policy Northwestern paid Wasson the sum of $858.56 for his loss and damage. Under subrogation rights Northwestern sued Haglund for the damage to Wasson’s automobile. Holding a policy of liability insurance issued by third party defendant Lumbermens Mutual Insurance Company, Haglund gave due notice of the suit to that insurer. However, Lum-bermens denied coverage and refused to defend the action. Thereafter Haglund sued Lumbermens as a third party defendant to recover any sums for which he might be adjudged liable to Northwestern, together with a reasonable attorney’s fee and the statutory penalty for Lumbermens’ alleged vexatious refusal to defend him. Trial to the court upon an agreed statement of facts resulted in a judgment that plaintiff Northwestern recover of defendant third party Haglund the sum of $858.50 and that he in turn recover of the third party defendant Lumbermens Mutual Casualty Company the sum of the “original” judgment against him ($858.50), and the further sum of $500.00 as attorneys’ fees. Defendant Haglund filed no appeal but Lumbermens has appealed as third party defendant.

In a single point the appealing third party defendant (Lumbermens) contends the trial court erred in rendering judgment that plaintiff Northwestern recover from defendant Haglund the sum paid its named assured for collision damage and also erred in rendering judgment over in favor of Haglund against Lumbermens for the amount of the “original” judgment and for attorneys’ fees and a statutory penalty.

Appellant’s complaint of the judgment in Northwestern’s favor against Haglund is grounded on the asserted legal premise (which is supported by some substantial authority), that an insurance company can not sue under subrogation rights secured from the named insured after payment of a loss arising from a collision and recover in turn from the person who was operating the automobile with the owner’s permission, and who thereby became an additional insured under the policy’s terms. We will not determine this question or disturb the judgment in Northwestern’s favor against Haglund inasmuch as (1) Haglund makes no complaint by appealing and consequently has not invoked our review of the judgment against him; (2) as will later appear, appellant Lumbermens has suffered no aggrievement by that action of the court, and (3) all appeal issues will be fully resolved by our determination of the appeal complaints directed against the resulting judgment over against appellant in favor of Haglund.

It is contended by Lumbermens that the judgment against it is in error because the coverage of its liability policy issued to Haglund does not extend to include liability for the particular risk of loss asserted in this case, or to impose upon it the duty to defend the suit brought against Haglund by Northwestern. In resolving these issues, we look to the insurance contract entered into by the parties and consider it in connection with nature and circumstances of the loss in controversy.

The pertinent provisions of the Lumber-mens policy are here noted. In Part 1, entitled “Liability” the company agrees (in part) “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: * * * B. injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * Exclusion (i) of the policy provides that it does not apply, under Part I (Liability), “to injury to or destruction of (1) property owned or transported by the insured or (2) property rented to or in charge of the insured other than a residence or private garage”.

It is a well established rule that, “Except to the extent that statutes or public policy may control, an insurance company may. insert as many exemption clauses in its liability policy as it deems proper or necessary, and liability cannot be fixed on the company for injuries due to risks or causes which have been excepted unless it has waived or is estopped to set up such exception”. 45 C.J.S. Insurance § 834, page 906.

We consider Exclusion (i) to be a clearly expressed and unambiguous exemption clause which specifically excludes the insurer from any liability for damage occasioned to property (other than the excepted residence or private garage) while it is “in charge of the insured”. Under the agreed and admitted facts of the case, Haglund had sole control and custody of the automobile at the time of the collision which damaged it. Thus the “property” involved was “in charge of the insured”, and is not included in the contract of insurance as a subject of liability risk. Consequently there is no contractual basis for rendition of the judgment over against Lumbermens.

We are supported in this view by the Missouri case, Arditi v. Massachusetts Bonding & Insurance Company, Mo.App., 315 S.W.2d 736, where the Travelers Insurance Company, as a crossclaiming party, sought recovery against Massachusetts under a liability policy. In denying a recovery by Travelers the Supreme Court wrote as follows: “The Massachusetts’ policy likewise excluded liability for this loss, excluding injury to property ‘in charge of or transported by the insured;’ and the damaged tractor was at the time ‘in charge of and transported by’ its insured Brooks. We, therefore, hold the trial court properly ruled against Travelers on its crossclaims”.

In Middlesex Mutual Fire Insurance Co. v. Ballard, La.App., 148 So.2d 865, under factual circumstances very similar to those of the instant case, the appellate court, relying in part on the Arditi case, ruled that a liability policy exclusion exactly identical to Exclusion (i) of Lumbermens policy was effective to exclude liability under the policy for collision damage to an automobile sustained while the vehicle was in the custody of and being operated by a permissive user. The court there said:

“We are of the opinion that this exclusion is placed in the policy under the liability coverage specifically to prevent and exclude any coverage where there is injury to or destruction of any property owned or transported by the insured or any property rented to or in charge of the insured other than a residence or private garage. This exclusion refers to all property such as an automobile owned by the insured or an automobile transported by the insured or an automobile rented to the insured or an automobile in charge of the insured. The word property we believe is intended to be all inclusive other than to a residence or private garage as specifically stated in the exclusion. If an insured desires coverage on his own automobile or such other property as may be transported, rented, or in his charge at the time of damage thereto, as a result of a collision he must pay for collision insurance”.

Other decisions to the same effect include General Accident & Fire Assurance Corporation Ltd. v. Wyble, La.App., 144 So.2d 114 (which also cites and relies upon the Arditi case; Speier v. Ayling, 158 Pa. Super. 404, 45 A.2d 385; Wyatt v. Wyatt, 239 Minn. 434, 58 N.W.2d 873; Western States Mutual Insurance Co. v. Standard Mutual Ins. Co., 26 Ill.App.2d 378, 167 N.E.2d 833.

The remaining question is whether Lumbermens was obligated to defend Northwestern’s suit against Haglund. Our decision necessarily depends upon the breadth of coverage afforded by the policy. While it is true that Part I of the policy entitled “Liability” requires Lumbermens to defend any suit for property damage payable under the terms of the policy, “even if any of the allegations of the suit are groundless, false or fraudulent”, it is a corollary proposition that the company is not obligated to defend suits for property damage which are not covered by the terms of the policy. See 45 C.J.S.Tnsurance § 933, p. 1056.

In general, the duty of a liability insurer to defend should be determined from the language of the insurance contract and from the allegations of the petition or complaint in the action brought by the person injured or damaged against the insured. 45 C.J.S. Insurance § 933, p. 1056. Also see Inter-State Oil Co. v. Equity Mutual Ins. Co., Mo.App., 183 S.W.2d 328; Marshall’s U. S. Auto Supply v. Maryland Cas. Co., 354 Mo. 455,189 S.W.2d 529. The petition in the suit filed against Haglund by Northwestern contains allegations showing that at the time Wasson’s automobile was damaged “the defendant- — (Haglund)" —had sole control and custody of said vehicle”. Hence, it is disclosed by the petition that the damaged automobile was “in charge of the insured” (Haglund).

Therefore, the action was within the exemption provided by Exception (i) and not within the policy’s coverage as it relates to defense of actions against the insured. It necessarily follows that no duty rested upon third party defendant Lumbermens to defend Haglund and that there is no legal basis to support the $500.00 judgment awarded Haglund as attorneys’ fees for the defense of Northwestern’s suit against him.

Accordingly, we reverse the judgment before us and remand the cause with directions that the trial court enter a new judgment in conformity with this opinion.

All concur.

BROADDUS, J., not participating.

      . In Western States Mutual Ins. Co. v. Standard Mut. Ins. Co., et al., 26 Ill.App. 2d 378, 167 N.E.2d 833, the appellate court ruled that “it was not intended that the insurance company (after paying damage to the named insured under collision coverage) would have a right of action against a person to whom the named insured lends his automobile, even if the person is at fault, since such ' person is intended to be covered as an additional insured”. In reaching this conclusion the court reasoned: “In Paragraph 19 of the conditions, the ‘insured’ is required to ‘do whatever is necessary to secure such rights (subrogation) for the company.’ In this instance, since this term ‘insured’ is used rather than ‘named insured’, we know that the term includes the ‘named insured’ as well as the permissive user. By the terms of the policy, then, the permissive user is -obliged to .cooperate with the company in attempting to recover collision payments made to the named insured. Such a requirement is reasonable so long as the recovery is sought from a third person not an insured under the terms of the policy. But, as in the instant situation, it is inconceivable to us to assume that it was the intention of either the company or the named insured that a permissive user would be obliged to cooperate with the company in order that the company could secure a judgment against the permissive user. It seems to us elementary that Standard has no right of subrogation against its insureds. It has accepted a premium in return for which it has agreed to pay collision losses without regard to fault. From the plain language of Condition 19, we conclude that no subrogation rights exist in favor of Standard against its own insureds”. Also see Middlesex Mutual Fire Ins. Co. v. Ballard, La.App., 148 So.2d 865.

      . See Inter-State Oil Co. v. Equity Mut. Ins. Co., Mo.App., 183 S.W.2d 328; Daniel v. State Farm Mut. Ins. Co., 233 Mo.App. 1081, 130 S.W.2d 244; Marshall's U. S. Auto Supply v. Maryland Cas. Co., 354 Mo. 455, 189 S.W.2d 529; State ex rel. Inter-State Oil Co. v. Bland, 354 Mo. 622, 190 S.W.2d 227; Simpson v. American Automobile Ins. Co., Mo.App., 327 S.W.2d 519; M. F. A. Insurance Co. v. Lawson, App., 336 S.W.2d 123.


author: HUNTER, Judge.

text:
    Helen Patricia HUNT, Appellant, v. Basil Dean HUNT, Respondent.
    No. 24021.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      Jayne & Oswald, Kirksville, for appellant.
    C. M. Hulen, Moberly, Edwards, Hess & Collins, Macon, for respondent.
   HUNTER, Judge.

This is an automobile negligence case brought on the res ipsa loquitur doctrine by appellant, Helen Patricia Hunt against Basil Dean Hunt. On August 30, 1958, appellant (then single but who married respondent on June 24, 1959) was riding as a guest passenger in a 1955 Chevrolet automobile being operated by respondent in a southeasterly direction on U.S. Highway No. 63 in Schuyler County, Missouri, when, according to the import of her evidence, respondent negligently caused or permitted the automobile to leave the paved road surface and to turn over, injuring appellant.

The trial began July 25, 1963. At the close of all the evidence the court instructed the jury and appellant made only general objections to the instructions offered by respondent, including Instruction No. P-10. The jury verdict and judgment were for appellant in the sum of $6,000.

Respondent’s motion for a new trial filed on August 9, 1963, was sustained on November 5, 1963, by the trial court which declared that “as grounds therefor the court finds Instruction P-10 specified in paragraph 11 of Defendant’s Motion for new trial to be erroneous because said instruction was misleading and confusing in that it told the jury that plaintiff had met the burden of proof if the jury found the facts submitted in Instruction No. P-1 ‘from the evidence in favor of plaintiff’, which eliminated the requirement that the jury consider all of the credible evidence in making its findings.”

On this appeal appellant contends the trial court erred in sustaining respondent’s motion for a new trial by assigning error in the giving of Instruction P-10 because respondent failed to raise specific objections to Instruction P-10 at the trial or in his motion for a new trial, and particularly in paragraph 11 thereof and the trial court’s order sustaining the motion for new trial assigned as error a legal ground or proposition nowhere contained in it.

Instruction P-10 provided: “On the meaning of burden of proof as submitted by Instruction No. D-9, you are instructed that if you believe and find from the evidence in favor of plaintiff, the propositions and issues to be as outlined and required by Instruction No. P-1, the Plaintiff has met and carried such burden of proof and it would be your duty to so find. And on the issue of negligence of Defendant, you are instructed that negligence need not be proved by direct testimony, but negligence may be inferred by the Jury from the facts and circumstances in evidence in the case.” (Italics ours.)

The only portion of the motion for new trial that mentions Instruction P-10 reads: “11. The Court erred by giving Instruction P-10, at the request of plaintiff and over defendant’s objection, because that instruction is confusing, misleading and repetitious, and is contradictory of and repugnant to Instruction D-9. Further, Instruction P-10 is not a correct statement of the law and, when read with Instruction D-9 it is so confusing and contradictory as to be misleading and resulting in no instruction at all, which is understandable on the burden of proof. Furthermore, Instruction P— 10 submitted to the jury a confusing counter-burden of proof instruction which creates a vicious circle and makes the jury feel that the burden of proof instruction is an issue in the case. The last sentence of Instruction P-10 is in error as it assumes the truth of 'the facts and circumstances in evidence in the case’ and authorizes the jury to infer negligence from ‘facts and circumstances in evidence’ without requiring the jury to find that the same were true.”

A comparison of paragraph 11 of the motion for new trial with the trial court’s assigned reason for sustaining the motion reveals the trial court did not sustain it upon any specific ground mentioned in the motion. Rather, the only ground the trial court referred to in sustaining the motion that was contained therein is that Instruction P-10 is erroneous “because said instruction is misleading and confusing.” This type of objection and language has consistently been held to be only a general objection rather than a specific one, and this for the reason the “objection” fails to point out with any degree of definiteness what is actually claimed to be wrong with the instruction in such a manner that the trial and appellate courts may immediately perceive the point. Ayres v. Keith, Mo.Sup., 355 S.W.2d 914, 917; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711. Thus, the trial court granted a new trial eighty-eight days after the motion for a new trial was filed and did so by including in its specific reason the general ground contained in the motion that Instruction P-10 is not a correct statement of the law (erroneous) and is misleading and confusing.

As further illuminated in her brief appellant asserts Supreme Court Rules 70.02 and 79.03, V.A.M.R., prevent a trial court from granting a new trial after thirty days after the entry of the judgment because of an erroneous instruction if the objector failed to make a specific objection to the instruction at the trial before submission to the jury or in the motion for new trial, and cannot grant one upon a specific ground not so made at the trial or in the motion for a new trial.

All of these contentions of appellant have: been answered by our Supreme Court, En Banc, in the recent decision of Woods v. Kansas City Club, 386 S.W.2d 62, decided December 14, 1964. In that case the trial court sustained respondent’s motion for a new trial on the 90th day after it was filed “for error in giving plaintiff’s Instruction No. 2.” Only general objections had been made to this instruction at the time it was offered at the trial and only general objections were contained in the motion for a new trial. The record shows the following entry at the close of all the evidence: “The Court: Let the record show that the Court gives instructions numbered one, two and three offered by the plaintiff, to the giving of which (sic) each of which the defendant duly objects and excepts.” The pertinent portion of defendant’s motion for new trial is: “Because the court erred in giving instructions numbered one, two and three at the request of the plaintiff and over the objections of the defendant.” On appeal appellant asserted Civil Rules 70.02 and 79.03 require that specific allegations of error must be stated in the motion for new trial to preserve these errors for review by either the trial court or appellate court, and contended the trial court was “without authority” to sustain defendant’s motion for a new trial and that defendant was “without right” on appeal to support the court’s order sustaining the order.

In rejecting this contention the Supreme Court stated, “We hold that neither Rule limits or restricts the trial court’s right to pass on its own errors. Civil Rule 79.03 prescribes, inter alia, when it is necessary that specific allegations of error in instructions must be set forth in the motion for new trial in order to preserve the error for appellate review. What was said by the :St. Louis Court of Appeals in White v. Metropolitan Life Insurance Company, Mo.App., 218 S.W.2d 795, 798[2], before the adoption of Civil Rule 79.03 which supplanted Supreme Court Rule 3.23 referred to therein, is as true today as it was then. In that case, where the plaintiff-appellant •made the same contention as is made in this, ■the Court correctly stated at 1. c. 798: ‘As for the contention that the motion for a new trial was insufficient under Rule 3.23 of the Supreme Court, appellant overlooks the fact that the rule has to do with the sufficiency ■of such motions for appellant (sic) review .and the trial court's right to pass upon its ■own errors is not limited by the rule.’

“Defendant’s motion for a new trial was sustained and defendant granted a new ■trial. On an appeal from an order sustaining a motion for new trial it has been said by this Court ‘that within the limit of the record brought up for review “ * * * it is not only our prerogative, hut obvious duty, to review the action of the circuit ■court, and determine from the law and the facts of the case whether the circuit court ■exercised a sound judicial discretion * * * ” in granting the defendant a new ■trial. Merriam v. St. Louis, C. G. & Ft. S. Ry. Co., 136 Mo. 145, 36 S.W. 630, 631. See also Bushman v. Bushman, 311 Mo. 551, .279 S.W. 122, 125(2).’ Loveless v. Locke Distributing Company, Mo., 313 S.W.2d 24, 27(2). Defendant’s motion for new trial having been sustained and it having been ■granted a new trial it is our duty to review, and we do review, the action of the trial •court in granting defendant a new trial for the giving of an alleged erroneous instruction offered by the plaintiff.” * * * “The plaintiff contends that the trial court did -not have jurisdiction to sustain the motion for new trial on its own motion more than .30 days after judgment and cites Civil Rule 75.01. The rule is not applicable here and -the point is ruled against plaintiff.”

As we interpret the Woods case, supra, it at least holds a trial court does bave jurisdiction and power to sustain a motion for a new trial more than thirty days after judgment • but not over ninety days thereafter on the basis the trial court erred for a specific and stated reason in giving a generally objected to instruction even though only a general objection included within that specific and stated reason was contained in the motion for new trial. And on appeal the party so objecting to the instruction will be permitted to support the trial court’s action.

We need not here explore the Woods case further. It disposes of appellant’s first contention, and, under its authority we rule that contention to be without merit.

Appellant next contends that if Instruction P-10 is erroneous, it is not reversibly so because respondent’s Instruction D-9 on burden of proof contained error which was common with and invited error, if any, in Instruction P-10.

It is clear that Instruction P-10, the verdict directing instruction, is erroneous for it restricts the jury in its consideration to plaintiff’s evidence rather than have it consider all of the credible evidence. Similar language was held erroneous in Knipp v. Mankin, Mo.Sup., 336 S.W.2d 371, 373.

Turning to the doctrine of common or invited error, in Myers v. Buchanan, Mo.Sup., En Banc, 333 S.W.2d 18, 23, the court stated, “ ‘Defendant invokes the well-established rule that one party in a case cannot complain or take advantage of erroneous instructions given for his adversary when .his own instructions contain the same erroneous theory of the law. * * * Such rule, however, should be applied with discretion. The underlying reason of the rule is that one party cannot predicate error on an instruction declaring a theory of the law which he himself has adopted and invited and induced the court and his adversary to adopt. It is sort of a judicial setoff of one error against a similar error, or more properly applied when the court finds that both parties have used or tried to use the same erroneous view of the law to his own advantage, in which case this court will not aid either party, hut will leave them where they have put themselves.’ ” (Italics omitted.) In 5 C.J.S. Appeal and Error § 1507 (3), page 928, in discussing the rule of invited error it is stated, “It has been said, however, that the general rule above stated should be applied with discretion, and it is inapplicable where the instruction complained of contains a new and distinct error. The rule that a party cannot complain of error in an instruction, if instructions given at his request contain the same error, is limited in its application to cases where the instructions complained of and the ones with which it is compared refer to the same principle of law based on the same assumption of facts and contain the same error.”

The mentioned Instruction D-9 reads: “The court instructs the jury that the burden of proof is on the Plaintiff to show by the greater weight of the evidence that she was injured by the negligence of the Defendant. You should not find that the Defendant was negligent from the mere fact of the occurrence shown by the Plaintiff’s evidence, if you find and believe from all of the evidence in the case that the Defend:ant was not negligent, and if you do find and believe from all of the evidence in the case that the Defendant was not negligent, then your verdict should be for the Defendant.”

Appellant argues she was confronted with an instruction, D-9, using argumentative language “mere fact of the occurrence” in such a way as to deprive her of her right to have the jury infer negligence from the facts and circumstances of the case and that this invited her to commit the alleged error in Instruction P-10. However, it is immediately apparent that Instruction D-9 does not eliminate the legal requirement that the jury consider all of the credible evidence in arriving at its verdict. Yet this is what Instruction P-10 does. Thus, assuming Instruction D-9 is erroneous (a question we need not now resolve) it does not contain the same error, nor the same theory or defect as that contained in P-10 and cannot fairly or reasonably be said to have invited the particular error contained in P-10. Under such circumstances the doctrine of common or invited error is not applicable, and the trial court did not err in so holding..

Respondent claims the right to support the trial court’s action in sustaining the motion for new trial by urging additional alleged errors contained in the motion for new trial but not assigned by the trial court as reasons for sustaining that motion. Appellant concedes respondent has that right, which concession is in accordance with the decisions on the subject. See, Overton v. Tesson, Mo.Sup., 355 S.W.2d 909, 913; Cantwell v. Zook, Mo.Sup., 250 S.W.2d 980, 981. However, these alleged errors are of such a nature that on a new trial they are not likely to recur or to arise in the same manner. It would serve no practical purpose to review them and we refrain from doing so.

The judgment is affirmed.

All concur.

BROADDUS, J., not participating.

      . Rule 79.03: “If any specific objections to instruction [s] have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth ' in the motion for a new trial to preserve the error for review.”
      Rule 70.02: “ * * * but specific objections shall not be required before submission to the jury as a condition of preserving error for review on after trial motion, or on review by an appellate court, if they are set forth in the motion for a new trial.”

      . See, Wise v. St. Louis Public Service Company, Mo.Sup., 357 S.W.2d 902, 905, concerning effect of sucli language as “mere fact of the occurrence”; and see, Myers v. Buchanan, Mo.Sup., 333 S.W.2d 18, 25. Fortunately as of January 1, 1965, the new Missouri Approved Jury Instructions will be effective, preventing tie use of such an instruction as D-9 and P-10.


author: MAUGHMER, Commissioner. PER CURIAM:

text:
    Marguerite McGRATH, Plaintiff-Respondent, v. Irving Thomas McGRATH, Defendant-Appellant.
    No. 24032.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.
    William V. North, Brenner, Ewing, Lockwood & O’Neal, Kansas City, for appellant

      Robert L. Shirkey, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Marguerite McGrath, on September 13, 1963; in the Circuit Court of Jackson County, Missouri, filed her petition, praying that she be granted a divorce from defendant Irving Thomas McGrath. Therein she alleged that “she and the defendant were married in 1955, and continued to live together as husband and wife throughout various states of the United States, including the State of Missouri, until on or about August, 1963”. On November 8, 1963, after hearing testimony, the court sustained plaintiff’s motion for temporary allowances and allowed her $35 per week as temporary alimony and $150 as temporary attorney’s fee. Defendant has appealed from this judgment and as a basis therefor asserts the parties were never married, and that plaintiff failed to prove even a. prima facie case of marriage in. Missouri or anywhere else.

Defendant in his answer denied that he and; plaintiff were ever married. At the Hearing on the motion for temporary allowances the plaintiff and defendant each testified. No other person was offered as a witness. , There is very little dispute as to the facts. Plaintiff and defendant never had a marriage license issued to them. There has never been a marriage ceremony of any kind. These people lived together as husband and wife from 1955 until August, 1963. Their domicile during this period was in the State of Missouri, although they temporarily sojourned in Arizona, California, Illinois, Massachusetts, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Texas and West Virginia. Those trips to these eleven other states were for business or pleasure, or both, without any intention to become there domiciled. During this whole period plaintiff and defendant held themselves out as a married couple. Defendant introduced plaintiff to friends and acquaintances as his wife. He registered in hotels and motels as “Mr. and Mrs. I. T. McGrath”. They lived together and cohabited together in Missouri and in the various other states. There are no children involved.

In describing his occupation Mr. McGrath said: “I do business as Franklin Oil & Grease Company, selling specialty lubricants throughout the United States”. He estimated his yearly net income from 1955 to 1963, as ranging from $5,000 to $19,000. The plaintiff also was employed for at least a part of the time. She worked at Research Hospital and for Studio Girl Cosmetics. She at various times used four different names. Sometimes Marguerite Bunton, her maiden name; sometimes Daggett or Kraft, the name of a divorced husband, and part of the time McGrath. Kraft was her Social Security record name.

Since adoption of the Married Woman’s Act, alimony pendente lite is no longer granted as a matter of course in Missouri, but depends upon the necessities of the case. Summers v. Summers, Mo.App., 222 S.W.2d 514. A wife, whether guilty or innocent, has a right to prosecute or defend an action for divorce and the husband must 'furnish her the means of attack or defense if she is without adequate means of her own. Burtrum v. Burtrum, Mo.App., 200 S.W.2d 80.

Manifestly there can be no divorce unless there was first a marriage. We quote from the Supreme Court en banc opinion in Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 485:

“The right of divorce is predicated upon and presupposes a valid marriage, 27 C.J.S., Divorce, § 1, p. 521, and a motion for temporary alimony, in cases where the marriage is not admitted, must be supported by prima facie proof of the marriage. Hill v. Hill, Mo.App., 236 S.W.2d 394, 400; 27 C.J.S., Divorce, § 208b (1), c (1,2), pp. 895-897. * * * And, ordinarily, upon prima facie showing of marriage, the wife’s motion for temporary allowances will be sustained if otherwise meritorious, even though the husband tenders an issue of the validity of the marriage; this, for the reason that to deny the motion might foreclose the wife of the means with which to establish her contention that the marriage was valid. Carroll v. Carroll, 68 Mo.App. 190, 193-194; Ascher v. Ascher, 202 Mo.App. 622, 216 S.W. 576, 578”.

Our own court quite recently (Preston v. Preston, Mo.App., 342 S.W.2d 956, 957) said:

“The plaintiff to be entitled to temporary alimony and attorney’s fees had the burden of proving a valid marriage (Hill v. Hill, Mo.App., 236 S.W.2d 394, loc. cit. 400 and Kruse v. Kruse, 231 Mo.App. 1171, 85 S.W.2d 214, loc. cit. 216) and where the plaintiff, as here, relies upon the presumption of a common-law marriage, from acts on the part of the parties, the court requires ‘stringent proof’ of the marriage.
“ ‘Appellant does not rely on an express contract of common-law marriage, but on a presumption of such marriage from the facts in evidence. This court has put itself on record as in favor of stringent proof of common-law marriages’. (Citations.) (Italics supplied.) Heger v. Bunch, 321 Mo. 758, 12 S.W.2d 459, loc. cit. 460.”

There is no suggestion or contention that a marriage was consummated by any ceremony — civil, religious, or otherwise. If plaintiff and defendant were married it resulted from what is generally known and described as a common-law marriage. During the whole period of their association these persons resided in and were domiciled in the State of Missouri. Common-law marriage has been since 1921, unrecognized in Missouri. Section 451.040 [5] first added in 1921, declares: “Common law marriages hereafter contracted shall be null and void”.

Under the testimony and admitted facts it is quite clear that if these persons had at all times remained in Missouri, there would be no marriage, and not even a prima facie case of marriage. There was no ceremony of any kind and this state has declared common-law marriages to be null and void. The relationship, even considering all its ramifications — taking the same name, holding forth as husband and wife and cohabiting — does not amount to marriage in Missouri. The association in this jurisdiction was meretricious. Defendant says that since it was meretricious where commenced, such status followed into the other states into which the participants traveled. Plaintiff says that even though the relationship was invalid and meretricious in Missouri, where it began, it became a valid marriage when the parties took up even a temporary residence in a state where common-law marriage is recognized and there cohabited and held forth as husband and wife. Plaintiff says these facts at least present a prima facie case of marriage so as to entitle the wife to be awarded the sinews and cash with which to adequately present her contention.

In the oral argument before this court defendant’s counsel was asked in which of the eleven states into which these people traveled, he was asserting a valid common-law marriage was consummated. His reply was “Texas”.

It is the general law that there must be a present agreement to be husband and wife. 35 Am.Jur., Marriage, Section 5, p. 182. It seems that in Texas in order to create a common-law marriage, there must be (1) an agreement to be husband and wife; (2) it must be followed by cohabitation and (3) it must be followed by publicly holding themselves out as husband and wife. In re McKanna’s Estate, 106 Cal.App.2d 126, 234 P.2d 673. The marriage status must be under an agreement, express or implied. Bobbitt v. Bobbitt, Tex.Civ.App., 223 S.W. 478.

Our Missouri courts have held that the status existing upon the inception of the relationship is presumed to continue absent proof to the contrary and that a relation meretricious in the beginning is presumed to continue, and the burden is upon plaintiff to satisfy the court that a new and real relationship of husband and wife was thereafter by mutual agreement and good faith entered into. Cargile et al. v. Wood et al., 63 Mo. 501, 514, 515; Perkins v. Silverman, 284 Mo. 238, 223 S.W. 895, 901.

It is clearly apparent and tacitly conceded that the association in Missouri in its beginning was not only meretricious, but there is no testimony or evidence of any specific agreement to become husband and wife, such as is required in the common-law states. The evidence shows only cohabitation and a holding forth as husband and wife. There is not only a presumption that the meretricious relationship continued during the business and pleasure trips to the various other states, but there is no suggestion, supported by evidence, that the parties entered into any new agreement or even re-examined or restated their status when they traveled into those foreign states.

We believe that a wife, if her circumstances so require, is entitled to temporary allowances in a divorce suit, where the marriage is admitted, or where there is prima facie proof of a valid marriage of any kind. We do not here hold that she must prove a valid marriage, but there must be such proof on this point as will present at least a reasonably debatable issue. It is our opinion and we rule that plaintiff has not met these minimum requirements. The association lasted eight years or more. During the whole period the domicile was in Missouri. It is conceded that no marriage could have arisen under the laws of Missouri. The sojourns for a few days at a time into other states were trips for business or pleasure, or both, with never an idea of taking up residence there. No suggestion is made and no evidence is submitted that any new or fresh agreement was made to become husband and wife in Texas or in any other state. It is our opinion and we hold that plaintiff has not submitted evidence showing a prima facie marriage so as to entitle her to the temporary allowances.

The judgment and order allowing plaintiff $35 per week as temporary alimony and $150 as temporary attorney’s fee is reversed and the cause remanded.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.

BROADDUS, J., not participating.


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Nancy Jane SHIELDS, Plaintiff-Appellant, v. Spencer O. SHIELDS, Defendant-Respondent.
    No. 24040.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      Ronald Ray Riepen, Kansas City, for appellant.
    Lillie Knight, Kansas City, for respondent.
   MAUGHMER, Commissioner.

We have here a marital contest. The wife was granted a default decree of divorce and custody of the two children. Thereafter that judgment was set aside in response to a motion alleging lack of jurisdiction and then, after hearing testimony, the court granted a divorce to the husband and awarded custody of the children to a paternal uncle and aunt. The wife has appealed.

Nancy Jane Shields was lawfully married to Spencer O. Shields on June 3, 1956. Two children were born of the marriage— Spencer Ogden on May 31,1957, and Toyna on October 14, 1958. This couple resided in Jackson County, Missouri, and separated during June, 1962.

The petition for divorce under which the plaintiff wife received the default decree recites that it was signed and sworn to by her on June 22, 1962. It was filed with tí*e circuit clerk on July 12, 1962. Defendant husband on July 11, 1962, subscribed and swore to a document styled: “Entry of general appearance, waiver of personal service of summons, consent to trial and entry of decree without further notice”. In the body of this document defendant “acknowledges receipt of a true copy of plaintiff’s petition for divorce”, waived personal service of summons, entered his “general appearance in said cause for all purposes”, consented that the cause be set for trial and hearing without further notice and without his presence, or his attorney’s presence. This entry of appearance bears the circuit clerk’s stamp “Filed July 15, 1962”. July 15, 1962, was a Sunday. The deputy clerk identified his signature on the filing stamp mark and as a possible cause for its being dated Sunday, stated that he might not have turned the date mark from Saturday all the way to Monday.

The defendant husband said he agreed to pay the attorney fee of $200 and understood the cause would be taken up and a default decree entered after he did so. He never paid this fee. The wife did and some ten months later, on May 16, 1963, plaintiff was granted a default decree of divorce, was awarded custody of the two minor children and $40 per week for their support and maintenance. No other proceedings of any kind took place of record until 63 days later when on July 18, 1963, defendant filed his “motion to modify divorce decree as to custody of minor children”. Therein it was alleged plaintiff had assured defendant she would not seek custody of the children, and further declared there had been a “change in condition and circumstances”, that plaintiff was unfit to have custody, and prayed that care and custody be awarded to him. In due time plaintiff moved for allowance of suit money and attorney fees and on September 13, 1963, defendant filed his written motion to set aside the default decree for “lack of jurisdiction”. In that motion defendant charged that he was never duly served with summons or copy of the petition; that his entry of appearance was taken before the suit was filed, and that the court had no jurisdiction to entertain the suit or enter the decree of divorce. It should here be noted that no motion for new trial — timely or untimely — as to the default judgment was ever filed and no appeal therefrom was ever taken. In addition, the thirty day period during which the trial court retains control of its judgments had long since expired before the court took any action. Sections 510.340 and 510.370, V.A.M.S.

On October 4, 1963, the court set aside the default decree, defendant filed answer and cross petition and the court proceeded to hear testimony and tried the controversy on the merits.

The transcript is lengthy and contains some serious charges or at least suggestions of serious misconduct especially against the wife. The record showed that the defendant husband drank excessively, called his wife vile and indecent names and on occasions struck her and kicked her on the shins. Mr. Shields works for Sheffield Steel Company and earns approximately $500 per month.

There was testimony offered by defendant that plaintiff, who worked at Milgram’s store, often neglected the children; that she stayed out quite often until the early morning hours, refused to state her whereabouts, drank frequently and sometimes to excess, and went to- taverns in the company of married men. It was further suggested by defendant that she went out socially with negro men and frequented negro taverns. It was also charged that she carried on unnatural relationships with members of her own sex, especially with a high school girl and with a woman about her age who occupied the same living quarters. These women and plaintiff squarely denied any such relationships. Plaintiff denied ever having had any dates with negroes or going into colored taverns. Plaintiff had ambitions to become an author. She had prepared and there was in evidence the outline of a novel which she planned to write depicting' the acquaintance, courtship and final marriage of a white girl and a negro man.

The only direct and unequivocal testimony that plaintiff visited black and tan taverns or had dates with colored men came from the testimony of one Lawrence A. Randall. Randall is a negro, employed part time as an automobile salesman and, as he described it, a part time detective or private investigator. At the request of defendant he “investigated”’ Mrs. Shields, and was specially directed to learn if she was “associating with people of the negro race”. He testified that he followed plaintiff and her girl friend upon numerous occasions when they were in an automobile with two negro men. He detailed trips made by these four to various taverns and hotels. He testified partly from written notes which he claimed were made at the time. He told about these women being picked up at their home in the Lake Lotawana district in December, 1962, when in truth and in fact plaintiff and her girl friend did not move to the Lake Lotawana district until April, 1963. He denied that defendant had paid him for the investigations, stating he did not know how much his charges would be, that they “might be a million or might be nothing”. This investigator at the time was 71 years of age, had one plastic eye and one eye which he said was good. The trial court indicated that it did not believe this man’s testimony. Neither do we.

The testimony is clear that at the time the default decree was entered the minor ■children were residing with William W. .and Sarah McKnight, paternal uncle and aunt. Thirty days later Mrs. Shields removed the children from this home. There was a sufficient showing that Mr. and Mrs. McKnight gave the children a suitable •foster home.

On appeal plaintiff says (1) the court had no jurisdiction to set aside the default decree, (2) defendant is not the innocent and injured party and hence is not entitled to a divorce and (3) it is not in the best interests of the children to place custody with Mr. and Mrs. McKnight.

In connection with the order sustaining the motion to set aside the default decree for lack of jurisdiction the trial court said: “I am inclined to think that this entry of appearance was good under those decisions, technically correct, but unfortunately the judges, taking it for myself in this case, there are three parties to a divorce case, and one of them happens to be the State of Missouri, represented by this court. The custody and welfare of two very young children are involved in this case and therefore I am going to sustain this motion to set aside the decree and hear the case on its merits”.

The court in which a divorce decree is granted — by default or otherwise— and where the care and custody of minor children is involved has the authority thereafter at any time to re-examine the matter of custody and upon a showing of substantially changed conditions since entry of the custody judgment to alter, modify or change that judgment in whatever respect is advisable and necessary in order to promote the best interests of the children. Schumm v. Schumm, Mo.App., 223 S.W.2d 122; Williams v. Williams, Mo.App., 211 S.W.2d 740, and Johnson v. Fish, Mo.App., 197 S.W.2d 990. It would seem that this rule requiring a substantial change in conditions might be relaxed and the discretion of the trial court possibly enlarged in default cases where the custody question was not fully explored at the time of the entry of the default decree. In any event, it is clear that the trial court here could hear testimony,, consider and act upon defendant’s motion to modify respecting custody of the children, without setting aside the divorce decree.

We believe the entry of appearance, even though signed before the suit was actually filed, was sufficient to confer jurisdiction. In Gardner v. Gilbirds et al., Mo.App., 106 S.W.2d 970, it was squarely held that the preparation and execution of a written appearance and waiver of service of summons prior to filing of petition in divorce proceeding does not render the appearance and waiver void so as to furnish basis for subsequent suit by defendant to set aside judgment of divorce. The rule is stated in 159 A.L.R. p. Ill, this way:

“The main argument advanced against the effectiveness of a written appearance or waiver of service executed prior to the filing of the complaint or other commencement of the action is that there can be no appearance, or waiver of service, where there is no suit or action, but in nearly all of the cases involving this situation, it has been held or recognized by inference, that such an appearance or waiver was valid and effective, notwithstanding it was executed prior to the filing of the complaint or bill”.

We hold that the court had jurisdiction to enter the default decree of divorce on May 16, 1963, but was without authority to set it aside on October 4, 1963.

The trial court in its comments made just before setting aside the default decree, expressed the opinion that there was jurisdiction but that the judgment might be set aside because plaintiff had committed perjury. Two factual statements in her testimony were declared to be untrue: (1) her statement that she lived in Independence when in truth and in fact her residence was in the Lake Lotawana district — both being in Jackson County — and (2) she said the minor children lived with her when at the time they were actually residing with Mr. and Mrs. McKnight.

There is nothing in the judgment order itself which purports to set aside the default for fraud in procurement and respondent does not offer this ground in support of the court’s action. Moreover, we doubt if the misstatements referred to are sufficient to authorize cancellation for fraud. We quote from a Supreme Court opinion as to the essential requirements which would justify setting aside a divorce judgment for fraud. In McCarty v. McCarty, Mo., 300 S.W.2d 394, 400, 401, the court said:

“It is true that courts of equity have set aside judgments for divorce because of fraud in the procurement thereof, but as stated in Jones v. Jones, Mo.App., 254 S.W.2d 260, 261, that fraud must have been extrinsic or collateral’ to the matters which either were or could have been presented or adjudicated in the original proceeding and must not be ‘merely intrinsic in the sense of having pertained to the merits of the cause upon which the judgment of the court was rendered.’ See also Grages v. Grages, Mo.App., 184 S.W.2d 749[1] ; and Crain v. Crain, Mo.App., 205 S.W.2d 897[2], It has repeatedly been held that false swearing and false averments in the pleadings do not give rise to an action in equity to set aside a judgment for fraud”.

Now as to the child custody question. Both parents are employed. There is considerable, substantial, credible testimony which casts doubt on the probability of either parent furnishing a suitable home and proper surroundings for the upbringing of the children. It is at least tacitly conceded that the McKnights can do so. There is a showing of a change in conditions compared to that existing when the default judgment was entered. We are impelled to affirm the action of the trial court in-awarding custody of the children for two reasons: First, the trial judge saw, heard and appraised the witnesses and the parties themselves. We should and do defer to his conclusions unless we find them to be utterly wrong. Long v. Long, Mo.App., 280 S.W.2d 690. Second, if at any time it appears the children are not being properly cared for, the court upon proper motion can re-examine the matter and upon a proper ■showing may modify or change its order.

The order of the trial court dated October 4, 1963, setting aside the decree of divorce granted plaintiff on May 16, 1963, and granting a decree of divorce to defendant is reversed and the court is directed to reinstate the decree of May 16, 1963. The judgment of October 4, 1963, granting custody of the minor children to Mr. and Mrs. McKnight is affirmed.

SPERRY, C, concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the court

All concur.

BROADDUS, J., not participating.


text:
    Lowell K. HANDLEY, an Individual, d/b/a Mutual Readers League of the Ozarks, Appellant, v. STATE of Missouri, DIVISION OF EMPLOYMENT SECURITY, and S. N. Crowe, George W. Wise and Charles E. Cates, constituting the Industrial Commission of Missouri, Respondents.
    No. 24160.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      William A. R. Dalton, Donald W. Jones Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for appellant.
    Gordon P. Weir, Lloyd G. Poole, Jefferson City, for respondent.
   CROSS, Presiding Judge.

This action was filed in the Circuit Court of Cole County by plaintiff-appellant Lowell K. Handley, an individual doing business as Mutual Readers League of the Ozarks, to obtain judicial review of an order of the Industrial Commission of Missouri denying Handley’s application for review of a decision made by the Appeals Tribunal of the Division of Employment Security of Missouri to the effect that certain individuals who performed service for Handley as sales managers, telephone solicitors, home solicitors and closers were in his “employment” within the meaning of that term as it is defined in the Missouri Employment Security Law and that Handley was an “employer”, subject to its provisions, and liable for tax payments thereby imposed. The decision of the Appeals Tribunal is deemed to be the decision of the Industrial Commission for the purpose of judicial review. Section 288.200, subd. 1 V.A.M.S. The circuit court entered judgment affirming that decision after finding that it was supported by competent and substantial evidence and this appeal followed.

Appellant Lowell K. Handley is sole owner of the Mutual Readers League of the Ozarks and as such is engaged in a business described as a “budget magazine agency” offering magazine subscriptions for sale on a monthly payment plan. Handley is franchised under a contract with a parent organization, Mutual Readers League, Inc., of Des Moines, Iowa, which permits him to operate on its behalf on a shared profit basis in a territory within an approximate 200 mile radius of Springfield, Missouri. He maintains his principal business office in Springfield, and employed one office worker there as a personal secretary. He obtains orders for magazine subscriptions by utilizing the services of various sales people.

Describing his method of operation Handley testified in substance as follows: He “buys” subscription orders from sales people who obtain the orders by telephone and door-to-door solicitation. These individuals, eighty per cent of whom are experienced in that type of selling, are classified as sales managers, telephone solicitors, home solicitors and closers.

Handley operates through the medium of sales managers whose services he engaged by written contracts, terminable by him without notice and by the sales manager (designated as contractor) upon 24 hour notice. The contracts grant to “contractor” the right to sell budget magazine subscriptions and provide that he should be paid a specified commission on each subscription order — amounting to either 9 or 13 per cent.

In the year 1961 Handley had a total of six sales managers but only three at any one time. They worked out of offices located in the cities of Springfield, Bolivar, Mon-ett and Joplin, in Missouri; Harrison, in Arkansas; and Pittsburg, in Kansas. The expense of maintaining these offices was shared by Handley and the sales managers on a fifty-fifty basis. Sales managers (and solicitors and closers as well) are not furnished a drawing account, expense money, a car, postage or advertising material, including business cards and other items of solicitation. Some limited supplies consisting of purchase contract blanks, sales cards and stationery are furnished to Handley by the parent Mutual Readers League. These are "passed along” by him for use by the sales people. The sales managers are responsible directly to Handley, and their basic responsibility is to hire solicitors and closers and to complete the sales.

As to the means by which sales managers were permitted to obtain their sales, Hand-ley stated, “They can either do it — well, they can do it however they want Some of them do it through the telephone soliciting program or through door-to-door sales program, and it is up to them to hire and train who they want”. Sales managers hired, fired and instructed solicitors and closers. Commissions earned by solicitors and closers were paid to them by Handley but were charged against and deducted from the commissions paid by him to sales managers, with the result that the total expense to Handley of a particular sale was the 9 or 13 per cent paid to the sales manager.

The sales managers were not assigned to or limited as to any particular territory in which they might operate and Handley exercised no control over them in that respect. Their only limitation would be that of their own telephone service area. Handley made no attempt to tell sales managers who their employees would be. He did not require managers, solicitors or closers to work any specific hours or to make any set number of calls or produce any set number of contracts. No reports were required of sales managers.

Solicitors could operate either at home or in the office facility furnished by sales managers or by Handley. Instructions given to beginning telephone solicitors consisted of a printed sales talk to read over telephone. Office space and a telephone were available to them but they were free to work at home or elsewhere. They were not assigned any particular territory. Telephone solicitors secured the names of prospects from the telephone book and called them by telephone. When such a person indicates he is interested in buying a subscription, a “closer” is sent out to contact the prospect and complete the sale. Sales managers set the amount of commission per order paid to their solicitors and closers. Telephone solicitors who work at home are usually paid two or three dollars commission on each completed order. Telephone solicitors who work in Handley’s office and use his telephone are ordinarily paid $1.15 per hour. Closers did not work out of the office but acquired their “leads” by contacting sales managers or solicitors. These leads do not pass through any kind of bookkeeping system in Handley’s office and he keeps no record of them. He has no record of how many leads were closed by the closers and had no way of knowing what they were doing on the job. The only sales record kept by him is on the sales after they are completed — a collection record. Handley was concerned only when a contract was produced and turned over to him by the sales manager.

The sales people are not under bond, do no collecting and are not required to keep any record of their activities, Handley holds no meetings for them to promote sales. All sales personnel, including sales managers, solicitors and closers are free to take employment on the side and some of them do.

Handley asserts that he does not attempt to exercise any control over sales managers, solicitors or closers as to how to go about their work. That is up to them. He is interested only in the product of their work— in their results. He sets no quotas for them to produce. They make no report of what they do in the field. “That is entirely their own business”. Handley stated in reference to the contracts made with sales managers that it was his intentionAby executing them, to make those persons independent contractors. The same type of contracts are entered into with closers in some instances. No withholding for federal income tax or social security tax is deducted by Handley from any commissions paid and no question has been raised as to his liability for federal unemployment tax. He carries no workmen’s compensation insurance on any sales person.

Testifying on behalf of the Division, one of its field auditors, William A. Ward, identified its Exhibit No. 1 as a record covering the interval from January 1, 1961 to May 13, 1961, showing disbursements of commissions and wages paid by Handley to some 109 individuals during that time. The exhibit does not show the nature or extent of service for which the payments were made. Mr. Ward testified there was no-daily or weekly work record of those individuals in Handley’s office. The exhibit does not indicate whether the individuals-listed thereon as engaged in sales work were sales managers, solicitors or closers. Mr. Handley was able to identify only three of the listed individuals as sales managers. He-stated that he was not familiar with file-names and could not tell which ones worked in Missouri and which ones worked in Kansas or other states; and, that the record' introduced by the Division does not show the number of sales people he had in Missouri during a specific period of time.

Leonard Peterson testified that he did some wbrk for the Mutual Readers League in the summer of 1961. He was engaged' by a “salesman” at Springfield — not by Handley. He was given a written “sales-talk” and assigned to work as a house-to-house solicitor under a “crew chief” at a salary of $30.00 per week which was later reduced to $20.00 per week. After so working for about a month he was transferred to telephone solicitation work in the Springfield office for which he was paid $1.50 per order.

Gary Pretti testified that he worked for the Mutual Readers League of the Ozarks in 1961 — “off and on” for approximately eight months. He first worked in Springfield, where he “closed orders” and sold on the telephone. He was hired by a sales-manager named Bob Crosby, who gave him a “set sales pitch”. Any orders he closed he sent to the sales manager. He was paid “strictly commission” on both telephone solicitation work and for closing. He later became sales manager of the Joplin, Missouri, office, where he had under his supervision three or four female workers who worked as telephone solicitors and were paid “strictly commission”. The only records he sent to the Springfield office were-the contracts he had closed and a daily record of closed orders. He was not required to keep records showing the number of telephone contracts or persons solicited. As sales manager he signed a “working agreement” with Handley, to the effect that he was working for himself as an independent contractor and would sell Handley the orders. He stated that when he signed the agreement he understood and intended that he was to be independent and working on his own.

It is the function of this court in the present review to determine whether the findings and decision of the Commission are authorized by law and are supported by competent and substantial evidence on the whole record, whether that tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it, and whether the circuit court on review properly ruled the issue. Christian Board of Publication v. Division of Employment Security, Mo.App., 279 S.W.2d 55, V.A.M.S., Constitution, Art. 5, Sec. 22. “We should give due deference to the findings of the Commission, when based on controverted parol evidence; but if we find, on the whole record, that the decision is clearly contrary to the overwhelming weight of the evidence we should reverse the judgment affirming the decision * * National School of Aeronautics, Inc. v. Division of Employment Security, Mo.App., 226 S.W.2d 93, and cases cited.

In a single point Handley urges that the judgment is erroneous and should be reversed. He essentially contends that the decision under review is contrary to the evidence on the whole record and constitutes error because the Commission could not have reasonably made the finding that the various sales individuals were in “employment” as it is defined by the Unemployment Security Law. Handley insists that upon consideration of the whole record the Commission should have ruled that those persons were independent contractors.

Respondents meet and accept this issue by suggesting that this case should be decided under pertinent provisions of the -Unemployment Security Law as interpreted by the Supreme Court in cases which hold that "the usual tests for determining the existence of the status of an independent contractor should be considered”. (Emphasis supplied.) In their brief respondents concede that “If it were held that (sic) under the evidence in this case that the relationship of independent contractor applied as between the appellant and the sales managers, telephone solicitors, home solicitors and closers, then the service performed by these groups of individuals would not be considered as ‘employment’ subject to the law”. However, it is respondents’ position that there is evidentiary support of the Commission's decision to the contrary.

Thus the determinative issue presented is whether there is substantial and competent evidence on the whole record to establish that the named classes of individuals are in “employment” or whether, to the contrary, they are independent contractors. Pertinent to this inquiry are the following quoted provisions of the Unemployment Security Law:

“Section 288.032. ‘Employer’ means:
“(1) Any employing unit which for some portion of a day, in each of twenty different calendar weeks, within either the current or the preceding calendar year, had in employment, but not necessarily simultaneously, four or more individuals (and for the purposes of this definition, if any week includes both December 31 and January 1, the days up to January 1 shall be deemed one calendar week and the days beginning January 1 another such week). * * *
“Section 288.034. ‘Employment’ means:
“(1) Service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied. * * *
******
“(5) Service performed by an individual for wages shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that
“(a) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
“(b) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
“(c) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
* * * * * *
“Section 288.036. ‘Wages’ means all remuneration payable or paid, for personal services including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. * * * ”

Section 288.030, Subsection 14, (under the definition of “Employing Unit”) provides in part as follows:

“ * * * Each individual engaged to perform or to assist in performing the work of any person in the service of an employing unit shall be deemed to be engaged by such employing unit for all the purposes of this law, whether such individual was engaged or paid directly by such employing unit or by such person, provided the employing unit had actual or constructive knowledge of the work”.

The pioneer decision on the question here presented was rendered by the Supreme Court in the case, A. J. Meyer & Co. v. Unemployment Compensation Commission et al., 348 Mo. 147, 152 S.W.2d 184, where, in a comprehensive opinion, the court placed its interpretation on various-provisions of the then recently enacted unemployment compensation statutes. In particular, it was held by the court that the tests presently set out in Section 288.034-V.A.M.S., Subdivision (5) (a), (b), (c) are usual tests for determining whether or not the relation of independent contractor exists and that the purpose of placing those provisions in the act was to make plain the basis upon which those in the independent contractor relationship were to be excluded. Holding as a matter of law that the individuals concerned in the case were independent contractors, the Supreme Court declared that those persons were not in employment within the meaning of the act. The clear effect of the Meyer opinion, resulting from its direct holdings and expressed approval of quoted authority, was to declare that the statutory definition of employment is no broader than the common law concept of the master and servant relation, and that in drafting the unemployment compensation statutes the legislators intended that the common law tests of employment relationship should likewise be the test of whether an individual is in employment as defined by the statute or has the status of an independent contractor. Since the Meyer decision, Missouri courts have consistently applied this test in their determination of the question. See Hartwig-Dischinger Realty Co. v. Unemployment Compensation Commission, 350 Mo. 690, 168 S.W.2d 78; Trianon Hotel Co. v. Keitel et al., 350 Mo. 1041, 169 S.W.2d 891 Atkisson v. Murphy, 352 Mo. 644, 179 S. W.2d 27; National School of Aeronautics, Inc. v. Division of Employment Security, Mo.App., 226 S.W.2d 93.

The established criteria for determining whether an individual is an employee Or an independent contractor are found in many Missouri decisions. In Atkisson v. Murphy, supra, the Supreme Court approved the following quoted concept of an independent contractor: ‘“'According to the definition substantially adopted by many courts, with some variation in language, an “independent contractor” is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer except as to the result of his work.’ * * * ‘The right of control as to the mode of doing the work is generally held to be the principal consideration in determining the relationship, but “retention of the right to supervise as to results, as distinguished from the right to supervise as to the means by which the intermediate results should be obtained, does not affect the relationship.” ’ ”

The Supreme Court has adopted the definitions of master, servant and independent contractor as formulated by the American Law Institute’s Restatement of the Law of Agency, Chapter 1, Sec. 2, and his frequently applied them in cases involving the issue now before us. See McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, and cases cited. Those definitions are as follows:

“A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
“A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
“An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking”.

Missouri courts recognize and apply certain specific tests in determining whether an individual is an employee or an independent contractor. The various factors to be considered have been summarized in Lawrence v. William Gebhardt, Jr. & Son, Mo.App., 311 S.W.2d 97, as follows:

“the extent of control which, by the agreement, the alleged employer may exercise over the details of the work; the actual exercise of control; whether the person performing the service is engaged in a distinct and independent calling, requiring the skill of one specially trained; whether the work is usually done under the direction of an employer, or by a specialist without supervision; the length of time for which the person is hired; the right to discharge the worker at any time prior to the completion of the work; the method of payment, whether by the time or by the job, without reference to the time consumed in performing the service; whether the alleged employer or the workman supplies the necessary tools, machinery and appliances; whether or not the work is a part of the regular business of the alleged employer; whether the employer has the right to hire, discharge and determine the pay of others who assist the worker in the performance of the work; and whether the alleged employer directs the details of the work performed by those assisting said worker”.

In Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, the Supreme Court stated that “each case must depend upon its own surroundings, facts, and circumstances, and be subjected to established specific tests in aid of the ultimate and decisive test, right of control.” (Emphasis, supplied.) In other decisions the courts have characterized the right of control as “of the greatest significance”; “of supreme importance”; “the primary-test” ; “determinative” ; and “the controlling consideration” .

With exception as to telephone solicitors who worked in Handley’s office and were paid by the hour — a group of individuals we reserve for special discussion later in. this opinion — the evidence which we have previously reviewed in detail reveals that Handley made no attempt to exercise any control whatever over the sales managers, solicitors or closers as to the details of or how to go about their work, that he was interested only in their ultimate product — “their results”, and that neither Handley nor those individuals intended that their operations would be subject to his control. No production quotas were imposed upon them. They were not controlled or restricted as to geographic operating area. They were not required to work specific hours or make any set number of calls or contacts. No activity or production reports were required of them. Handley furnished them no supplies' except contract forms and sales cards, no postage, no advertising, business cards or other items of solicitation, no expense money or drawing account and no transportation. They were free to accept other work and some of them did so. They were not under bond, no deduction for social security, federal unemployment or income tax was withheld from their commissions and no workmen’s compensation insurance was carried on their behalf. All the foregoing enumerated factors persuasively indicate the independent contractor status. As we said in National School of Aeronautics v. Division of Employment Security, supra, wherein we held, contrary to the decision of the Commission, to the effect that certain salesmen were shown to be independent contractors by the overwhelming weight of the evidence, “The facts in the Meyer case are so similar to those involved in this case that they cannot be distinguished”.

Again, in this case, we repeat that the facts are not distinguishable from those in the Meyer case from which the Supreme Court determined as a matter of law that the salesmen there involved were independent contractors. Consequently we are impelled to hold that there is no substantial and competent evidence to support the Commission’s decision that the sales managers, telephone solicitors, home solicitors and closers under present discussion were in “employment” under the act, and that such decision is contrary to the overwhelming weight of the evidence.

Our ruling is otherwise as to the special group of telephone solicitors which we specifically excluded from the foregoing discussion and holding. The evidence shows that there were some individuals who worked for Handley in his Springfield office as telephone solicitors and were paid at the rate of $1.15 an hour for their work. Those persons worked a regular shift, kept a record of their time, and turned it in to appellant as a basis for payment of their wages. Unlike the other solicitors, the closers and sales managers, they were not paid “by the job”, but by the hour. “Payment by a unit of time, such as an hour, day or week, is very strong evidence of employment status”. Larson, Workmen’s Compensation Law, Vol. 1, Sec. 44.33(a), quoted with approval in Pratt v. Reed & Brown Hauling Co., Mo.App., 361 S.W.2d 57. The very nature of such service raises the implication that the person for whom it is performed has the right to control the details of its performance. Hence, the decision of the Commission that the telephone solicitors who worked on an hourly basis and were paid accordingly is consistent with the whole evidentiary record.

Notwithstanding we have found that under the decision of the Commission it has been established by requisite evidence that some telephone solicitors were in the “employment” of Handley during the time in question, we cannot affirm the judgment before us. There is no showing that any particular number of that class of individuals rendered service at any particular time in any particular state during the pertinent interval. Therefore, it has not been established that Handley is an “employer” as defined by Section 288.032 because it has not been ■ established that he had four or more individuals in “employment” in each of twenty different calendar weeks within the calendar year of 1961. However, we shall not foreclose the respondents from an opportunity to consider additional evidence.

In accordance with all the foregoing, we reverse the judgment with directions that the circuit court remand the cause for further proceedings consistent with this opinion.

All concur.

BROADDUS, J., not participating.

      . Coy v. Sears, Roebuck & Co., 363 Mo. 810, 253 S.W.2d 816.

      . Garcia v. Vix Ice Cream Co., Mo.App., 147 S.W.2d 141.

      . Hackler v. Swisher Mower & Machine Co., Mo.App., 284 S.W.2d 55.

      . Bernat v. Star-Chronicle Pub. Co., Mo.App., 84 S.W.2d 429.

      . Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628.