author: WOLFE, Judge.

text:
    Edward BETZ, (Plaintiff) Appellant, v. Jesse GLASER, (Defendant) Respondent.
    No. 31453.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 12, 1964.
    David G. Dempsey, Thomas B. Maue, Clayton, for appellant.
    Luke, Cunliff, Wilson, Herr & Chavaux, by Paul Chavaux, St. Louis, for respondent.
   WOLFE, Judge.

This is an action for damages arising out of personal injuries sustained by the plaintiff when he fell from a ladder while engaged in cutting a limb from a tree. He charged that he was caused to fall by the defendant going under the tree at the time the limb was about to fall, and that in attempting to grab the limb he lost his balance. There was a verdict for the plaintiff, but the court sustained the defendant’s motion for a judgment in accordance with her prior motion for a directed verdict, and entered a judgment for the defendant. From the judgment so entered the plaintiff prosecutes this appeal.

All of the evidence, except for medical testimony with which we are not concerned, came from the plaintiff, who was the only witness called. On May 23, 1956, Edward Betz, the plaintiff, was a painting contractor. He was sixty years of age and resided on Lafayette Avenue in the City of St. Louis. Mr. and Mrs. Glaser lived across the street from his residence. They were friends of his, and he had been in their yard on occasions to show them how to cut the grass “and so forth”. Mr. Glaser had asked him several times to cut some branches from a tree on a boundary of the Glaser property. On the date mentioned Betz took his own ladder across the street to the Glaser property, and with a saw supplied by Glaser he proceeded to cut branches from the tree. His ladder was firmly set. He was accustomed to working on ladders and had at times worked at considerable heights. He had done this for many years and had never fallen.

Mr. and Mrs. Glaser were in the yard watching the operation, and as he cut branches from the tree Mrs. Glaser would run under the tree and pick them up and carry them away. He stated that prior to the accident he had said to Mrs. Glaser, “Get away from the tree, you’ll get hurt.” He said that he told her that a “couple of times”. Then he said, “about two or three times,” which he later changed to “dozens of times”. He said that prior to his fall he had cut from three to four limbs from the tree and had been at work for about ten minutes. Despite his warnings, Mrs. Glaser went under the tree to pick up branches that he had cut. He could have quit cutting the limbs from the tree, but he did not do so because the Glasers were good friends of his.

Just before the accident he was standing firmly on the ladder. He was about ten feet from the ground, and a branch that he was about to saw was waist-high to him as he stood on the ladder. The branch was ten feet long and three inches “around” at the trunk. He saw Mrs. Glaser was in the yard away from the tree. Holding onto the ladder with his left hand and sawing with his right hand he started to saw the branch. As it was about severed and started to fall, he saw Mrs. Glaser standing beneath the tree under the branch. He released his hold on the ladder and attempted to grab the branch. He lost his balance and fell, and was seriously injured by reason of the fall.

The plaintiff submitted his case upon the rescue doctrine. He asserts that he acted upon seeing the defendant in peril from the falling limb, and that consequently he may recover for the injuries sustained in attempting to rescue her, regardless of his own negligence in so doing.

In Dulley v. Berkley, 304 S.W.2d 878, l. c. 883, our Supreme Court cited with approval the following from 38 American Jurisprudence, Negligence, § 228, p. 912:

“The rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attemping to effect a rescue, provided the attempt is not recklessly or rashly made. In other words, in attempting to save the life of another, one is justified in exposing himself to danger in a manner that under other circumstances would deprive him of legal redress for injuries sustained.” (Emphasis ours.)

As stated in Dulley v. Berkley, supra, the basic theory of the rescue doctrine is that the negligence or wrong that imperiled life is not only a wrong to the imperiled victim, but also a wrong to his rescuer.

We have been cited to no Missouri cases, nor have we found any, where the rescuer sues the party rescued. The case closest in point to the facts before us is Saylor v. Parsons et al., 122 Iowa 679, 98 N.W. 500, 64 L.R.A. 542. This case involved two workmen who were engaged in removing a wall in order to build an extension to a building. The defendant was negligently undermining the wall, and the plaintiff noticed that it was listing toward his fellow worker. Believing the fellow worker to be in imminent danger he seized a piece of scantling and braced it against the wall about two feet from the top. His fellow worker escaped without injury, but the brick against which the plaintiff placed the prop gave way, and the plaintiff fell forward and was caught by the falling wall, suffering injuries. The court held that the plaintiff made no case. It stated that a plaintiff who grounds his action upon the negligence of the defendant must show, not only that the conduct of the defendant was negligent, but also that it was a violation of some duty the defendant owed to him.

This case is noted in Am.Jur., § 229, p. 914, and it sums up the holding by saying that according to this authority, “a person who places himself in peril is not guilty of negligence toward another which entitles the latter to recover for injury suffered in attempting to rescue him from his peril.”

There is some authority to the contrary in Brugh v. Bigelow, 310 Mich. 74, 16 N.W.2d 668, 158 A.L.R. 184. In that case the plaintiff was injured in attempting to rescue a person pinned beneath an automobile. The rescuer was injured in attempting to free the party from his position of peril, and brought suit against the one he rescued. The defendant had negligently driven his automobile before he was pinned under it. This case attempts to distinguish the facts from those in the case of Saylor v. Parsons, supra, by reason of the fact that the defendant in Brugh v. Bigelow was calling for help and his negligence occurred on a public highway. We find the law as stated in the Saylor case more in point to the situation before us, if we assume that the defendant in the instant case was, in fact, in peril.

In the case before us the plaintiff had full control of cutting the branch that was to fall. He knew there were two people in the yard and sawed the branch to a point where it would break off before making sure that it would not fall on any one. It is true that he had told Mrs. Glaser a number of times to get away from the tree or she would get hurt. He did not warn her that her presence in any way endangered him. She went under the tree obviously to catch the branch or to step aside when it fell and pick it up. She did, in fact, step aside and was not struck by it. If her action was negligent, any risk that could be anticipated from it was to herself.

In the case of Gladden v. Missouri Public Service Company, 277 S.W.2d 510, the Missouri Supreme Court quotes with approval a statement contained in Restatement of Torts, § 289, comment b, which is as follows:

“In order that an act may be negligent it is necessary that the actor should realize that it involves a risk of causing harm to some interest of another, such as the interest in bodily security, which is protected against unintended invasion. But this of itself is not sufficient to make the act negligent. Not only must the act involve a risk which the actor realizes or should realize, but the risk which is realized or should be realized must be unreasonable.”

Jones v. St. Louis-San Francisco Ry. Co., 333 Mo. 802, 63 S.W.2d 94, l. c. 98; Phillips v. Yellow Cab Co. et al., 225 Mo.App. 1172, 36 S.W.2d 419, l. c. 423.

In Gladden v. Missouri Public Service Co., supra, the court also goes on to say that “anticipation” or “foreseeability” is an essential element in determining negligence.

Here, if it were possible to charge the defendant with negligence, it would have to appear from the facts to be reasonably foreseeable that in going under the tree she would be in a position of peril; that if she went under the tree the plaintiff would continue to saw the branch before he discovered her; that after he discovered her position, the branch was about to fall; that he would attempt to grab the branch; that in attempting to do so he would release his hold upon the ladder; that in releasing his hold on the ladder he would lose his balance, and that this loss of balance would be sufficient to cause him to fall, or that he would in some other way be injured by her presence under the tree. It certainly appears unreasonable that the defendant could have foreseen that in walking under the tree, she would set in motion the chain of circumstances which culminated in the plaintiff’s injuries.

As stated in Tharp v. Monsees, Mo. Sup., 327 S.W.2d 889, l. c. 899:

‘Whether or not negligence can be inferred from a given state of facts is a question of law for the court. * * * ’ Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66, 74. It is a judicial function to determine whether the evidence is substantial, as a matter of law, and warrants inferences sufficient for the submission of the case to the jury. When evidence is such that, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by nonsuit, directed verdict or otherwise in accordance with applicable practice without submission to jury, or by judgment notwithstanding the verdict. Nance v. Atchison, T. & S. F. Ry. Co., 360 Mo. 980, 232 S.W.2d 547, 554. That means that where facts in evidence and legitimate inferences therefrom are so strongly against a verdict for plaintiff as to leave no room for reasonable minds to differ, defendant is entitled to a directed verdict. Stone v. Farmington Aviation Corp., 363 Mo. 803, 253 S.W.2d 810, 813.”

We find no facts or legitimate inferences that the fall of the plaintiff was caused by any actionable negligence of the defendant. Consequently, the action of the trial court in sustaining defendant’s motion for judgment was proper.

The judgment of the trial court is affirmed.

RUDDY, P. J., and ANDERSON, J., concur.


source: Caselaw Access Project

author: RUDDY, Presiding Judge.

license: Public Domain

text:
    Homer R. PATTERSON, Jr., (Plaintiff) Appellant, v. Delores M. PATTERSON, (Hager) (Defendant) Respondent.
    No. 31551.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.

      Leyhe, Jacobsmeyer & Meyer, R. W. Jacobsmeyer, W. H. Leyhe, III, Clayton, for appellant.
    Charles M. Shaw, Clayton, for respondent.
   RUDDY, Presiding Judge.

This is an appeal by the father of three minor children from an order modifying a decree of divorce wherein the trial court substituted provisions for the temporary custody of the children to defendant in lieu of visitation privileges.

The petition for divorce was filed on January 21, 1960, by the father, husband of the defendant, in which he alleged that he was married to the defendant on October 13, 1943, and that there were three children born of the marriage. The wife, defendant, filed an answer and a cross-bill for divorce.

On June 13, 1960, the Circuit Court of St. Louis County awarded plaintiff a decree of divorce. Prior thereto the plaintiff and the defendant had entered into a stipulation, in which, among other things, they disposed of their property rights and agreed that plaintiff should have the custody of the minor children. The trial court in its decree did not refer to the provisions of the stipulation covering custody but decreed that plaintiff have the care, custody and control of the three minor children and “that said defendant have the right to see and visit said children at all reasonable times.” The stipulation was filed in the cause.

On October 2nd, 1962, defendant filed her motion to modify the decree of divorce and asked that the custody of the minor children be given to her. In her motion to modify she alleged that since the rendition of the decree of divorce she has remarried and is now Delores M. Hager and is residing with her present husband who is gainfully employed and that she has an adequate home for her minor children. She further alleged in said motion that the plaintiff has refused to allow and permit her to have the right of reasonable visitation and, therefore, the children have been denied the right of the love of their mother. She further states in said motion that the welfare of the minor children will be improved should their custody be transferred to her.

After a hearing the trial court entered its order modifying the decree of divorce and in said order it eliminated and terminated the reasonable visitation privileges contained in the original decree and “further ordered, * * * that the defendant shall have the temporary custody of said minor children on the first weekend of each month from 10 A.M. on Saturday until 8 P.M. on Sunday and on the third Sunday of each month from 1 P.M. to 8 P.M.” The court further ordered that the defendant shall have the temporary custody of said children on certain designated holidays.

In the points relied on by plaintiff he contends that defendant failed to prove substantial change in conditions since the entry of the decree of divorce; failed to prove that the welfare and best interests of the children required a change in custody, and, that it was to the best interests of the children to leave them in plaintiff’s custody. He also contends that the trial court erred in restricting his examination of defendant in certain respects and that the judgment entered by the trial court was beyond that permitted under the pleadings.

Two days after the decree of divorce was entered defendant married Robert F. Ha-ger. A daughter was born of that marriage. She was 14 months old at the time of defendant’s testimony. Defendant now lives in Cahokia, Illinois, in a home consisting of two bedrooms, a nice sized living room, kitchen and bath. She said that the baby’s bedroom was very large in size in which there is a studio couch and that their living room was very large and in it there was a large couch that could be used for overnight sleeping. These sleeping facilities were in addition to the bedroom she and her husband occupied. It is the plan of defendant and her husband to purchase a larger home, and to assist in the purchase of a new home they have placed their present home for sale with a real estate company. The home she now lives in with her second husband was purchased four days after the decree of divorce was entered.

When defendant was questioned in her cross-examination about the relationship between her and her present husband prior to the divorce, she answered, “He was just a friend.” She said that the love and affection that culminated in their marriage on June 15, 1960, developed within the two day period after the divorce. This was the fourth venture into the field of matrimony for Robert Hager. His three previous marriages culminated in decrees of divorce in favor of his previous wives. He has been employed by the United States Government for 19 years and is presently connected with the United States Army Transportation Materiel Command. His income at the time of the hearing on the motion to modify was $8270 a year. He thought that his wife’s request for custody of the children was a wonderful thing, stating in his testimony, “I believe the children should be with their mother — any child should be with their mother.”

Defendant professed a great love for her children and in her testimony she said that she never failed to send gifts to the children on their birthdays or at Christmas and had frequently sent gifts on the occasion of Easter and Valentine Day. When questioned about the last time she sent gifts to her children, she said that she took a large dinosaur to one of her daughters on her birthday and upon finding no one home at plaintiff's residence she took the gift to a next-door neighbor, Mr. Kearney, and asked him to deliver it to her daughter. She said that she misses the children very much.

When defendant was asked on cross-examination why she did not fight for the custody of the children at the time the divorce was granted if she really cared for them, she said that at the time of the divorce and for some years prior thereto she had suffered from a nervous breakdown and that approximately one month before the divorce she had concluded six weeks of shock treatment in a hospital, these treatments having been given to relieve her nervous condition. She said that during that period and for a time thereafter she was confused and would suffer blackout periods, which she claimed were caused from the shock treatments. She further said that she did not forget her children but because of her physical and mental condition, and particularly her confused state of mind, she was in no position to care for the children. When pressed for an explanation of why she married her present husband two days after the divorce she said that he had proved to be the only comfort that she had during this period. She said that she had spent various periods of time in the hospital for her nervous condition during the seven year period before the divorce proceedings. This physical and mental condition related by the defendant was confirmed in the testimony of defendant’s present husband, who said that she had remained under the attention of a doctor for two or three months after their marriage. Defendant testified that at the present time her health is perfect, both mentally and physically, stating that she is not now under a doctor’s care and that she had been released from medical attention in October of 1960 for the nerve condition.

Defendant denied having any problem with alcohol, admitting that on social occasions she would have one or two drinks in an evening. In her cross-examination, when questioned about drinking in the automobile while riding with her husband, she explained, that while riding “ * * * down in Texas you drink in the car. They don’t serve drinks over the bar.” She said that she had never been intoxicated and that she had never seen her present husband intoxicated. Her husband denied that he drank while driving his automobile.

In connection with her visitation privileges, she testified that she has seen the children on one occasion and that this was the latter part of June 1960. On this occasion she went out to plaintiff’s home to take the children on a vacation trip over the Fourth of July weekend. She testified, “When we got there we found out we could only have 15 minutes to talk to the children. They weren’t allowed off the porch. Q. Who put these rules into effect? A. Mr. Patterson.” She said that plaintiff insisted on supervising the conversation between her and the children and that he said that in the future her present husband would not be allowed on the ground and that defendant could come out and come into the house for one hour to visit with the children. She said that was the only arrangement she could make to see the children and her visit had to be in her former husband’s house with him present for one hour and without her present husband being on the premises. She said that shortly after this first visit plaintiff took the children to California for almost a month and said that she attempted to visit the children “a couple of times after-wards” but they were not at home. She left a note in the door for the children but never received an answer.

In her cross-examination when defendant was questioned about the first visit, at which time she said he gave her and the children 15 minutes on the porch under his (plaintiff’s) supervision, she was asked “Did he tell you you had to leave ?” She said he told us “You have got 15 minutes, and we left after 15 minutes.” She further testified that when she told him the purpose of her visit, which was to take the children on the weekend trip, he answered, “No, they cannot go.” Thereafter, defendant consulted an attorney with reference to the interference with her visitation privileges and he advised her not to go out to the plaintiff’s premises on any more visits.

In her cross-examination when she was queried about her failure to visit the children again, she said, “All I know is that he had said that if he (defendant’s husband) would even set foot on the property he would shoot him, and I repeated that back to my present husband." By this testimony she had reference to the statement of plaintiff that defendant's present husband could not set foot on the plaintiff’s premises.

After her frustration in attempting to gain her full visitation privileges, defendant would call the residence of plaintiff and attempt to talk to one of the children and she said that “he (plaintiff) would always cut in on the other line." When he would cut in on the line he would make a slanderous remark and this would take place while the child was on the phone. On another occasion one of the daughters called defendant, which took place on a day the daughter was home sick from school, and while she and her daughter were talking over the .phone, the daughter said, “I can’t talk to you any more; I am not supposed to talk to you.” The daughter then hung up and rthat was the last time that she talked to any .of the children.

Defendant testified that one of the daughters was taken to the hospital and when in the hospital she asked her father (plaintiff) to call defendant, her mother, because she wanted her mother to come and see her. Plaintiff refused, telling the child, “I don’t want your mother here” and “Don’t bother your mother.” On another occasion plaintiff learned that her son had broken his wrist. She was not notified of his injury, nor was she notified of the daughter’s hospitalization. Defendant said she learned of these incidents through her mother and through Mr. Kearney who is the next door neighbor to plaintiff.

When questioned about her spiritual activities, defendant testified that at the present time she did not belong to any church, stating that they had visited four churches in Illinois, adding, “we have talked about getting the baby baptized and would like to join a church.” She said that she would see to it that the children attended church if she had custody of them, adding, “I would probably go to church with them myself. I enjoy going to church.”

On her cross-examination she was asked, “Did you attend church regularly when you were married to Mr. Patterson?” and she answered, “When I could. When you have three children and you have to have a meal ready so your husband can be on the job selling houses, you cannot go to church after cooking the meal and have everything at one time. I thought Rev. Gabler understood that.” Defendant’s present husband testified that if defendant was given custody of the children he would agree to take the children to church, stating, “we both would probably go with them.”

Defendant further testified that to her knowledge plaintiff is not married and that no one is taking care of the children; that plaintiff has no housekeeper and only has a lady come in once a week to do the ironing and cleaning but that plaintiff and the children cook their own meals and take care of themselves. She thought the children’s condition in life would be better if they had a full time mother.

The evidence adduced by plaintiff shows that he and the children live in a home consisting of two bedrooms, two baths, a family room, a living room, dining room and kitchen and a two car garage. The garage is attached to his home and serves as an office for his business, which is that of a builder and constructor of homes. The construction work he is engaged in is performed within a block of his home and this building operation has been going on for several years. He estimated that 50% of his time was spent in his office.

Witnesses testifying for plaintiff described the home of plaintiff as very normal, and that the children did not appear to be lacking in any supervision. A cleaning woman comes in to the home one day a week for the purpose of taking care of the ironing and other basic cleaning needs. All witnesses testified that the children appear neat at all times, except possibly when they are playing; that they were not undernourished or underfed and thought that the home was as neat now as it was at the time of the divorce.

Plaintiff testified that he prepares all of the meals for himself and the children. He said he always knows where the children are whenever they are not at home and that he has no problem in the supervision of the children and that their home life is very happy. Plaintiff has the reputation in the neighborhood of being a very good father.

Rev. William C. Gabler, a clergyman, affiliated with St. Paul’s United Church of Christ, affirmed the testimony of other witnesses that the children’s general appearance and dress was very satisfactory and that the people in the immediate neighborhood of the plaintiff admired the way in which he handled the situation. He did not think that plaintiff was lacking in his responsibilities so far as the religious training of the children was concerned and described their attendance at church and Sunday School as good. He said the children were baptized in March of 1960, and since that date one of them has been confirmed and that the plaintiff was in attendance at the time of the child’s Confirmation but that defendant did not appear. When the Confirmation took place does not appear in the witness’ testimony. He said that since the date of the divorce the plaintiff has attended his church and his attendance record is very good, adding that he was a member of the Ushers Corps.

In his cross-examination he said that a good mother was necessary in the growth of a child and admitted that the defendant was undergoing shock treatments during a part of her married life with the plaintiff. When asked about defendant’s failure to attend the Confirmation he admitted that he was not sure she was not undergoing shock treatments at the time. He further testified on cross-examination that the mother of the defendant did help plaintiff in taking care of the home.

Plaintiff testified that all of the children were in school and that their grades were average and that they had not missed school, except for illness. He stated that the children helped in the chores and house cleaning.

The court interrogated plaintiff and asked him what was the attitude of defendant in relation to the children when she was in the home regularly and on the occasions when she was not ill. Plaintiff answered, “You would probably have to go back two years prior to the divorce before I could give you a decent answer, because the last two years was very poor. Two years prior I would say that it was as well as I know it. I have only been married once. I don’t know what another wife and mother would be like. So far as I know she was a good' mother.” We understand from this testimony that defendant was a good mother, when she was not ill and not suffering from her nervous condition.

Again the court in its interrogation asked, “Now, the evidence indicates that whatever problems she has had she seemingly overcome it, at least she is not under a lot of medical care or physician’s care, or anything of that nature. Do you have any solid feeling of apprehension that the children would not be well taken care of if she had them for temporary visits on occasions ? A. Well, all I can do is speak on my personal convictions, and I would at any time question the safety of my children with her. Q. For what reason ? A. Primarily because of the last two years of my marriage.” Again we interpolate, that in the last two years of plaintiff’s marriage with defendant she was under medical care for treatment of a nervous condition and undergoing shock treatments.

In his cross-examination plaintiff said that he had no personal knowledge of facts that would cause him to believe that his wife would mistreat the children. However, at another part of his testimony he said he would question the safe return of his children because he had heard of excessive drinking on the part of his former wife. When pressed as to who told him that she drank to excess, he said it was his next door neighbor, Kenneth Kearney.

Kenneth Kearney testified that on one or two occasions since the divorce he has been with defendant and her present husband. On one of these occasions while en-route from defendant’s husband’s home to the home of his brother, witness testified that some drinking took place in the automobile. He said that on this occasion he became concerned about defendant’s baby and remarked, “You better let me hold the daughter.” When questioned why he made this remark, he stated that “I don’t know— it wasn’t a case of a matter of life and death — No.” On cross-examination he said defendant’s husband was driving in a safe and careful manner, was sober and was not “endangering anyone’s life.”

Plaintiff denied that he limited defendant’s visit to the children, as stated by defendant, to only 15 minutes. He explained, “As I recall it, they more or less timed themselves and said it was time for them to leave, and I didn’t say they had to leave. I don’t think they even stayed 15 minutes.” He admitted that he told the defendant that she was welcome to visit the children at any time she wanted to but that Mr. Hager was not allowed on his property. He gave as his reason that he felt Mr. Hager was partially instrumental in the cause of the divorce. He did not remember threatening to shoot Mr. Hager. Plaintiff said the only other time that defendant attempted to see the children was when she asked to take them on a fishing trip over the Fourth of July weekend. He said he refused to let them go on that occasion because his boy did not want to go and because the boy did not want to go he did not want the girls to go. He gave as his reason for this refusal that defendant and her husband were going to fish in a boat and he knew that accidents could happen in boating and that his boy had passed the life-saving course with the Scouts and he wanted him along for his own peace of mind and for the safety of the girls.

Plaintiff denied telling the children they could not call their mother but did tell them not to talk too long because it was a toll call. He denied interrupting the conversation at the time the child was talking to the mother over the phone, explaining that he was not at home at the time. He concluded his direct testimony with the statement that he has never refused his wife the right to visit the children.

We said in the case of Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40, l. c. 43, that it is our duty to review the whole record and we must decide the matter before us on its merits, having uppermost in mind the predominant rule that the best interests of the child must be served. Also, we must be mindful that defendant had the duty to show changed circumstances and conditions since the original decree of divorce was entered which, in the best interest of the minor child, required the original decree to be modified. Wilson v. Wilson, Mo.App., 260 S.W.2d 770; Brake v. Brake, Mo.App., 244 S.W.2d 786, l. c. 789; Hirsch v. Hirsch, Mo.App., 366 S.W.2d 484.

In this case the defendant has the burden of proof of showing by a preponderance of the credible evidence that there has occurred changed facts and circumstances which in the best interest of the children require modification of the original decree. Rutstein v. Rutstein, Mo.App., 324 S.W.2d 760; Hirsch v. Hirsch, supra. The welfare of the children is without exception the basic and principal consideration to which the parents own wishes and personal desires must yield if opposed to such welfare. Lewis v. Lewis, Mo.App., 301 S.W.2d 861.

In our consideration of this case we review the whole record as in cases of an equitable nature and decide the case on its merits according to the interests of the child, having in mind a proper deference for the findings of the trial court on the disputed questions of fact where matters of credibility of witnesses are involved. However, it is our duty to correct any errors the trial •court may have made, and to enter such judgment as justice required. Wilson v. Wilson, supra; Hirsch v. Hirsch, supra; Shepard v. Shepard, Mo.App., 194 S.W.2d 319.

We find no evidence in this case to indicate that either party is unfit to have, either the temporary or permanent custody of the minor children involved. It is true plaintiff expressed some fear that the defendant was drinking to excess, which fear had its foun•dation in a statement he heard from one of the neighbors. This neighbor when placed •on the witness stand did not support the fears possessed by the plaintiff. While defendant may have been physically and mentally unfit to care for the children at the time of the entry of the decree of divorce, there is nothing in the evidence presented at the hearing on the motion to modify which would show or tend to show that she had not recovered from the illness she had at the time of the divorce proceedings and was not now in-good physical and mental condition. The uncontroverted evidence in the record shows her to be mentally and physically fit at this time to have the temporary custody of tlie children. We think the evidence concerning her physical and mental condition at the time of the divorce proceedings and at the time of the hearing on her motion to modify shows a changed condition and circumstance since the original decree of divorce was entered.

Therefore, where both parents .are proper and fit persons, both of them have the right to reasonable access to the children and in fact the children’s best interests will be served by making it possible for them to receive the benefits derived from association with both of their parents. Schumm v. Schumm, Mo.App., 223 S.W.2d 122; Lewis v. Lewis, Mo.App., 301 S.W.2d 861; Olson v. Olson, Mo.App., 184 S.W.2d 768. We think it is beyond question that benefits will inure to the children from their association with their mother, where there is no question of her fitness to have the temporary custody of the children. Under the facts as shown in this case, these children should not he denied the companionship, affection and guidance of their mother.

In connection with the testimony concerning defendant’s attempts to visit the children, some conflict appears in the record. The trial court must have resolved this conflict in favor of the defendant and we defer to the trial court’s findings in that respect for the reasons heretofore given.

Defendant’s testimony shows that the conditions prescribed by the plaintiff governing her visits to the children, wherein she had to visit them in plaintiff’s home for one hour with him present and without her present husband, amounts to a denial of the privacy which was to be desired in such a situation. These terms, together with the directions by plaintiff to the children that they were not to call their mother on the telephone and his refusal to call the mother when the daughter was in the hospital, shows an attitude on the part of the plaintiff which is not conducive to a proper execution of the visitation privileges accorded defendant.

It was held in the case of Rutstein v. Rub-stein, supra, that if one parent’s conduct in regard to the children is such as to deprive the other parent of her right to temporary custody or of visitation, such fact will be ground for modification.

In the case of Shepard v. Shepard, supra, the court said:

“In the very recent case of Olson v. Olson, Mo.App., 184 S.W.2d 768, the St. Louis Court of Appeals discussed the effect of one parent, who had been awarded custody of the child, refusing to permit visitation by the other parent, as authorized by the decree. That court said (page 773) : ‘Where the one parent acts in disregard of the decree so as to deny the other parent the rights he has under it, the court is not restricted to mere punitive measures, but may modify the decree in such a manner as to insure the carrying out of those provisions which it conceives to be for the best interests of the child.’ ” (194 S.W.2d l. c. 319.)

We think the record in this case shows a change of conditions and circumstances since the rendition of the decree of divorce, ■ namely, the improved physical and mental condition of the defendant and her fitness now to have the temporary custody of the children and the action of the plaintiff which constituted an interference with the trial court’s decree awarding visitation privileges. We think it for the best interests of the children for the court to spell out as it did the visitation rights through its order of temporary custody. We see no need to further specify the contentions made by plaintiff in the argument portion of his brief. We feel that what we have said heretofore is a sufficient answer to all of the contentions and arguments raised by plaintiff.

In his next point plaintiff contends that the trial court erred in restricting the examination of defendant to matters occurring after the divorce. In support of his contention he cites the case of Drew v. Drew, Mo.App., 186 S.W.2d 858, which was a case decided by the Kansas City Court of Appeáls. ’ The portion of the opinion in the Drew case, relied on by plaintiff, which seems to permit the introduction of evidence showing character and conduct of the parents prior to the divorce decree was specifically overruled by the Kansas City Court of Appeals in Shepard v. Shepard, supra, wherein the court said:

“In Drew v. Drew, Mo.App., 186 S.W.2d 858, this court discussed the opinions in Sanders v. Sanders, supra, and Meredith v. Krauthoff, supra [191 Mo.App. 149, 177 S.W. 1112], and in so doing used language which seems to authorize the trial court to hear and consider evidence relating to the character and conduct of the parents prior to the divorce decree, but this is merely obiter dictum and should not be followed.” (194 S.W.2d l. c. 324).

As said in the Shepard case only new facts and circumstances arising after the entry of the original decree of divorce can authorize a change in custody of children. The court said in the case of Shepard v. Shepard, “The true theory upon which the rule requiring a showing of new facts or changed conditions rests upon the doctrine of res judicata.” (194 S.W.2d l. c. 323.)

Plaintiff also cites the case of Meredith v. Krauthoff, supra. The facts in that case are not analogous to the facts in the instant case. It will be seen from the facts in the Meredith v. Krauthoff case that the trial court was considering for the first time the question of the custody and welfare of the child. There had been no prior adjudication of that issue. Under such circumstances it was proper to hear evidence pertinent to the fitness of the parties both before and subsequent to the divorce decree.

Finally, plaintiff contends the court erred in rendering a judgment beyond that permitted under the pleadings. Defendant prayed for an order “modifying; its original decree, transferring the custody of the minor children to the defendant.” Plaintiff contends that the trial court could only enter an order of permanent custody under this prayer and had no jurisdiction to enter an order of temporary custody, citing Poole v. Poole, Mo.App., 287 S.W.2d 372. The Poole case merely held that it appeared from the face of the record that there was no pleading in the case calling for the exercise of the court’s jurisdiction to make an award of support and maintenance and for that reason held that part of the judgment void. Defendant’s motion raised the issue of custody and, therefore, the trial court had jurisdiction to make any order touching custody that would serve the best interest and welfare of the children.

We find no error. The trial court’s order and judgment is affirmed.

WOLFE and ANDERSON, JJ., concur.


text:
    James R. BROWN, Administrator of the Estate of James Monroe Brown, Deceased, (Plaintiff) Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, a Corporation, (Defendant) Respondent.
    No. 31414.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.

      Hayes & Hayes, James P. Hayes, St. Louis, for appellant.
    Lashly, Lashly & Miller, Paul B. Rava, St. Louis, for respondent.
   RUDDY, Presiding Judge.

Plaintiff brought this action seeking a recovery of benefits allegedly due on a life insurance policy. The Circuit Court sustained defendant’s motion for summary judgment and denied plaintiff’s motion for summary judgment. Plaintiff appealed from the judgment entered. However, plaintiff in his brief states that he does not wish to prosecute the appeal from that part of the order denying his motion for summary judgment.

In his petition plaintiff alleges that he is the Administrator of the Estate of his deceased father, James Monroe Brown, and that on or about the 1st day of June, 1956, defendant, in consideration of an agreed premium then paid to it, issued its group policy insuring the life of James Monroe Brown, in the amount of $1000. By the terms of said policy Julia S. Brown, wife of the said James Monroe Brown, was named beneficiary thereof. It is further alleged in said petition that Julia S. Brown died on or about the 9th day of March, 1957, which would be prior to the death of James Monroe Brown, who died on the 5th day of July, 1960, and that defendant has refused to make payment to plaintiff according to the terms of said policy.

In its answer defendant alleges that there are no conditions to be performed under the terms of said policy of insurance, since the plaintiff is not the designated beneficiary nor is the estate of the insured designated as the beneficiary. It is further alleged in said answer that:

* * * defendant states that pursuant to a change of beneficiary application executed on June 28, 1960, Truman F. Brown, brother of the insured, was substituted as the beneficiary under said policy of insurance, and that payment in the face amount of said insurance certificate, to-wit, $1000.00, was made to the said Truman F. Brown, beneficiary, on August 26, 1960.”

In answer to interrogatories propounded by plaintiff and directed to the defendant it is shown that the change of beneficiary application was not executed in the presence of an agent, servant, employee or officer of defendant or in the presence of any person acting in behalf of defendant.

The insurance certificate in question was issued under a group policy issued by defendant to the Teamsters Local No. 688, Insurance and Welfare Fund. The insured was formerly an employee of Rice-Stix, Inc. The insurance program was handled for the Union by the Unity Welfare Association, Inc., located in the Teamsters Building at 1641 South Kingshighway, St. Louis, Missouri.

On August 17, 1962, defendant filed a motion for summary judgment alleging “that there is no genuine issue of material fact concerning the alleged liability of the defendant to plaintiff.” Said motion was based upon the pleadings, the depositions of Betty Tuck and Grace Brown taken by plaintiff herein, the affidavit of Dorothy Lange attached to the motion as Exhibit A, a copy of the Prudential Life Insurance Company’s check for $1000, attached to said motion as Exhibit B, and the change of beneficiary form attached to the motion as Exhibit C. It is then alleged in said motion that “the foregoing documents show conclusively that the defendant is not liable to the plaintiff herein, * *

Exhibit A, the affidavit of Dorothy Lange, shows that she was the administrator of the Unity Welfare Association, Inc., and that the records of said Association indicate that James Monroe Brown was insured under said certificate issued by the defendant in the amount of $1000. Her affidavit further states:

“The files further indicate that the named beneficiary on said Certificate of Insurance issued on June 1, 1956 was Julia Brown, wife, but that a change of beneficiary form was executed on June 28, 1960, naming a new beneficiary, Truman F. Brown, brother, 4106 Clara, St. Louis 15, Missouri. A copy of the beneficiary form is presently located in the files of the Unity Welfare Association, Inc., and a carbon copy of same was forwarded to Prudential Insurance Company of America. Exhibit C attached hereto is a true and exact copy of the change of beneficiary form in the files of the Unity Welfare Association, Inc.”

Exhibit B was a check for $1000 to “Truman F. Brown, brother,” issued by the Prudential Insurance Company of America. Exhibit C, the change of beneficiary form, shows that it was executed June 28, 1960, and that the new beneficiary named was Truman F. Brown, brother, who lived at 4106 Clara, St. Louis 15, Missouri. Under the line for "member signature” was the following “(Signed at office 6/28/60).” Above the line was the signature of the insured which was identified by Grace Brown as will be hereinafter noted. (The signature is not on the line, angles upward to the right from the line and is illegible to one unfamiliar with decedent’s signature.) On the line immediately to the left of the member signature line is a line for witness and it has been signed by Betty Tuck.

On August 23, 1962, plaintiff filed a motion for summary judgment, the pertinent part of which we quote as follows:

“The signature which appears on said change of beneficiary application, copy of which is attached to defendant’s Motion for Summary Judgment and marked Exhibit C, is not legible or discernible, or in any way identifiable as the signature of the said JAMES MONROE BROWN, Deceased, and renders said change of beneficiary application a nullity.”

In support of said motion plaintiff thereafter referred to the deposition of Truman F. Brown, brother of said deceased, wherein he said that said signature on the change of beneficiary form did not look like that of the said James Monroe Brown, deceased, and that he knew what the signature of the said James Monroe Brown looked like. Plaintiff in his motion for summary judgment also points to the deposition of Betty Tuck, wherein she stated that she did not remember and could not identify or in any way describe the person who signed the said change of beneficiary application. Plaintiff further alleges in said motion for summary judgment that:

“4. Said change of beneficiary application was allegedly signed at the office of Unity Welfare Association on June 28, 1960, as indicated on said change of beneficiary application.
“5. The affidavit of JAMES R. BROWN and a copy of bill of Incarnate attached hereto as Exhibit A show that the same JAMES MONROE BROWN was admitted to said Incarnate Word Plospital as a patient at 5:55 P.M., on June 28, 1960.”

Plaintiff in his motion for summary judgment further alleges that Grace Brown, sister-in-law of the deceased, stated in her deposition that the said deceased did not leave his residence from Sunday, June 26, 1960, until such time as he was taken to said Incarnate Word Hospital by ambulance on June 28, 1960. Said motion is concluded with the statement that there is no issue of material fact concerning the whereabouts of the said James Monroe Brown, deceased, on June 28, 1960.

Attached to plaintiff’s motion was Exhibit A, which was an affidavit of James R. Brown, son of the deceased and plaintiff herein, stating that he had received the attached statement from Incarnate Word Hospital for the care and treatment of his father during his last illness, and that the statement accurately reflects the period during which his said father was confined as a patient in said hospital during his last •illness. The bill of the Incarnate Word Hospital shows that the decedent was admitted as a patient in said hospital on June 28, 1960, at 5:55 P.M.

The deposition of Truman F. Brown, which was taken by plaintiff, shows that he is a brother of the deceased and was 73 years of age and that he and his wife lived with his brother at 4106 Clara Avenue. He said that his brother had roomers living in the same house. He said that some time prior to being taken to the hospital his brother was confined to the house. When asked about his brother’s health, he said: “Well, he was more or less laid up for a week before they took him to the hospital.” Pie stated that his brother was taken to the hospital in an ambulance and thought that he left the house to go to the hospital somewhere around noontime of June 28, 1960. He said that he had never been to the Teamsters Union office at any time during the year 1960 and that he did not know where it was located. He was handed the change of beneficiary form and was asked if he recognized the signature in the lower right corner of the paper and he answered: “I don’t know whose signature that is to start with. Q. Does it look like your brother’s? A. No, not very much like it, not from the way I remember it. Q. This is a beneficiary change of form that has been marked Plaintiff’s Exhibit Number 1, you never saw it before, is that your testimony? A. No, sir. Q. You wouldn’t know what it is ? A. No, I don’t know what it is.” When this witness was handed a paper described as “A member’s record from the Unity Welfare Association” and asked, “If you see a signature up in the upper right-hand corner ? ” he answered, “I don’t know whose the signature is. Q. All right, you never saw that signature before? A. I couldn’t say that I have, did, no. Q. You know what your brother’s signature looks like, don’t you ? A. I know what it would ordinarily look like, yes. Q. Neither one of these signatures appear to be his, is that correct ? A. I wouldn’t say it was or not. They don’t look very good to me. Q. It doesn’t look like his signature? A. I wouldn’t say that, I wouldn’t say it wasn’t and I wouldn’t say it was.” Thereafter, he said the signatures on both of the cards did not appear to be the signature of his brother. He further testified that he had no occasion to observe his brother’s signature during the month of June 1960, and thought it was a couple of years or so since he last witnessed his brother’s writing of his signature. When asked if his brother’s hand shook when he wrote within the last month or so of his life, he answered, “Probably did, I don’t know.”

Exhibit B, the deposition of Grace Brown, taken by the plaintiff, shows that she and her husband resided with her brother-in-law, the decedent, and that she took care of the whole house, stating that she “paid all his bills and cashed his checks, took him to the doctor and attended to him when he was sick.” She testified that the decedent was taken to the hospital on Tuesday, June 28th, 1960, about 4 P.M., and that he had been confined to the house from Sunday, prior to that Tuesday, until he was taken to the hospital. Part of her interrogation in this area was as follows: “Q. Had he been in the house all that day? A. Yes, sir, up and down. * * * Q. He hadn’t been out of the house that day? A. Oh, no, the man was sick.” The following questions and the answers thereto appear in her deposition : “Q. When did you first learn that your husband was to get the money from the Prudential Insurance Company? A. Well, he was sitting, on that Sunday afternoon when he took this dizzy spell and reached over on my husband’s knees and he said I will sign my insurance over to you. I don’t know, it seemed like my husband didn’t know it. He didn’t answer him and I said, oh, yes. ⅜ * * ” She said this took place on the Sunday before the decedent went into the hospital and she rDSDdepeated that he said, “I am signing my insurance over to you.” This witness said that she knew her brother-in-law’s handwriting, that she had been in close contact with him and had observed his signature over a period of three years when she lived in the home with him. At one place in her testimony she said that James Monroe Brown did not have a steady hand and at another place she stated that he had no tremble in his hand, however, she said she was too busy to notice the trembling in his hand; that she had a sick man to take care of. When she was handed a copy of the change of beneficiary form the following testimony was elicited: “Q. Do you recognize the handwriting over the membership signature on that? A. Yes, sir. Q. You recognize that signature? A. Yes, sir. Q. What date does it have on there ? A. 6/28/60. Q. That’s the date James Brown went into the hospital, wasn’t it? A. Yes, sir. Q. You examined this copy here and your testimony is that is James Brown’s signature? A. I didn’t read anything, just looked at the signature. Q. Your testimony is, that is his signature ? A. That’s my brother-in-law’s signature; I am sure it is.” The witness identified the decedent’s signature on another exhibit which was dated January 4, 1960, but the identity and nature of this exhibit is not disclosed in the record. Again in her redirect examination she was asked, “Q. Handing you the photo copy of the Change of Beneficiary, that’s dated in June there, are you certain that that is the signature of James Brown?” and she answered, “A. That is James Brown’s signature.” When the witness was asked to compare the signature appearing on the change of beneficiary form with a signature appearing on the other exhibit and asked to state whether or not they were the same signatures, she said, “A. Yes, sir, they are the same. I have seen him sign his name different in size many times. This must have been written on something rough, a table or rough book because his hand didn’t shake. Q. His hand wouldn’t shake? A. No, not that I know of.”

In the deposition of Betty Tuck, taken by plaintiff, she testified that she is a clerk typist with the insurance organization known as the Unity Welfare Association which is connected with the different Teamster Locals and has its office in the Teamsters Building on South Kingshighway Boulevard. She identified the change of beneficiary form which showed the name of the insured, James M. Brown; that he had worked at Rice-Stix; that he had retired, and that the change of beneficiary was made June 28, 1960, also showing that the new beneficiary was Truman F. Brown. She then made the following answers to the questions propounded: “Q. Underneath there there is a place marked X, it has an X mark, has it? A. Yes, sir. Q. And is there a signature there? A. Yes, sir. Q. Over there to the left (indicating) of the same paper there is a witness? A. Yes, sir. Q. Is that your signature? A. Yes, sir. Q. Were you in the Unity Welfare Office at the time this card was signed? A. Yes, sir. Q. And did you witness the individual who signed his signature as a member signature there? A. Yes, sir. Q. And have you seen that person in this office here today? A. No, sir.” She could not recall any of the physical characteristics of the person whose signature she witnessed nor could she remember whether it was a young or old man or whether it was a man or woman.

After the submission of the motions for summary judgment plaintiff filed his reply by leave of court, the pertinent part of which denied the allegations of defendant’s answer setting forth the change of beneficiary.

Defendant must show by unassailable proof that it is entitled to a summary judgment as a matter of law. Civil Rule 74.04(h), V.A.M.R.; Swink v. Swink, Mo., 367 S.W.2d 575. The proof submitted should leave no room for controversy and in this case should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. Traylor v. Black, Sivalls & Bryson, 8 Cir., 189 F.2d 213.

Our duty is the equivalent of reviewing a court tried or equity case, and eventually of resolving the question of the sufficiency of the evidence to support the summary judgment and finally, if necessary, of entering such judgment as the trial court ought to have given. Swink v. Swink, Mo., 367 S.W.2d 575, 578; Civil Rules 73.01, 83.13, V.A.M.R.

A summary judgment may be entered after the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Civil Rule 74.04(c), V.A.M.R.; Swink v. Swink, supra; Burgert v. Union Pacific Railroad Co., 8 Cir., 240 F.2d 207, 210; Zampos v. United States Smelting, Refining and Mining Co. et al., 10 Cir., 206 F.2d 171; Traylor v. Black, Sivalls & Bryson, supra.

The purpose of Civil Rule 74.04, permitting summary judgment, is to see whether there is a genuine need for trial and to provide against the delay which sometimes comes from the formal trial of cases in which there is no substantial issue of fact and the court ultimately must render its judgment as a matter of law. It is to expedite the trial of such matters that the rule was provided. However, it is not to deny litigants a trial where a bona fide dispute of material facts exists, but if, as the rule provides, the pleadings, depositions and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact, the case then may be appropriately disposed of by summary judgment. As said in many cases the question of the sufficiency of the evidence raises an issue of law and if under the evidence adduced the court would be compelled to direct a verdict for any of the parties, then said party is entitled to a summary judgment.

The burden rests upon the defendant in this case to show that there is no genuine issue as to any material fact and that it is entitled to summary judgment in its favor as a matter of law. Zampos v. United Smelting, Refining and Mining Co. et al., supra. All of the evidence favorable to plaintiff must be resolved in his favor. Zoby v. American Fidelity Co., 4 Cir., 242 F.2d 76. However, when a motion for summary judgment is made and supported by sufficient proof as provided in Civil Rule 74.04(c), V.A.M.R., the adverse party (plaintiff in instant case) may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him. Civil Rule 74.04(e), V.A. M.R.; Zampos v. U. S. Smelting, Refining and Mining Co. et al., supra.

Plaintiff in his first point contends that “The pleadings, the depositions of Truman Brown, Grace Brown and Betty Tuck, the affidavit and exhibits attached to the Motion of defendant, the affidavit and exhibits attached to the Motion of plaintiff, and the admissions on file, clearly indicate that there exists a genuine issue of a material fact, to-wit: Whether or not the deceased, James Monroe Brown, executed the change of beneficiary form * * In other words, plaintiff contends that the proof shows the existence of a controversy as to whether the deceased, James Monroe Brown, executed the change of beneficiary form. Before answering this contention of plaintiff we examine the proof relied on by defendant to show that there is no genuine issue as to a material fact and that its supporting proof is unassailable.

The facts relied on by defendant show that it had issued its policy insuring the life of James Monroe Brown in the amount of $1000. The policy was issued as the result of a group insurance plan between the defendant and the Teamsters Local 688, Insurance and Welfare Fund. It is undisputed that the insurance program is administered by the Unity Welfare Association, Inc., and in that capacity the Association handles all changes of beneficiaries. The original policy showed the wife as the beneficiary of James Monroe Brown. She predeceased him.

Grace Brown, the wife of Truman Brown and sister-in-law of the insured, in her deposition, testified that the Sunday prior to Tuesday, June 28, 1960, .the decedent, insured, told her husband that he would sign his insurance over to him. In her deposition she further testified that she took care of the whole house for the decedent “paid all his hills and cashed his checks, took him to the doctor and attended to him when he was sick.” In the course of her duties she had observed the decedent sign his name on various occasions over a period of three years. She did say that his hand was steady and at another place in her testimony said that he did not have a steady hand, however, adding that she was too busy to notice the trembling in his hand, explaining that she had a sick man to take care of. She positively identified the signature on the change of beneficiary form as that of James Monroe Brown. There was no equivocation on her part in regard to this fact. She did say that between the time he told her husband that he was going to sign the insurance over to him and the time that he went to the hospital, decedent had not been out of the house. However, she testified that decedent was taken to the hospital in the ambulance on Tuesday, June 28, 1960, about 4 P.M., which is approximately one hour and fifty-five minutes prior to the time the decedent was admitted to the hospital. She testified that neither she nor her husband went to the hospital with the decedent.

Dorothy Lange in her affidavit stated that she is the administrator of the Unity Welfare Association, Inc., located at 1641 South Kingshighway, St. Louis 10, Missouri, and that the records of the Association are prepared and maintained under her supervision and control. She stated that the records showed that the beneficiary on June 1, 1956, was Julia Brown, wife of the decedent, but that a change of beneficiary form was executed on June 28, 1960, naming as the new beneficiary Truman F. Brown, brother of the insured, and that the exhibit attached to her affidavit was a true and exact copy of the change of beneficiary form in the files of the Unity Welfare Association, Inc. This form shows that it is a printed form of the Unity Welfare Association “change form,” which calls for the signature of the insured member and a witness to said signature. The form has printed on it “Signed at office 6/28/60” and indicates it was witnessed by Betty Tuck.

The deposition of Betty Tuck, taken by plaintiff, showed that she was a clerk-typist with the Unity Welfare Association, Inc., and she identified the change of beneficiary form and stated that the change of beneficiary was made on June 28, 1960, showing Truman F. Brown as the new beneficiary. Her testimony shows that she witnessed the signature of the person executing the change of beneficiary form and signed the change of beneficiary form as a witness to said signature and that the change of beneficiary form was executed in the office of the Unity Welfare Association, Inc.

In applying the applicable law to the facts in this case, at the very threshold of our consideration, we find there is a presumption that a named beneficiary is a legal one. Cooley’s Briefs on Insurance, Second Edition, Vol. 2, page 1338. The burden is on the person asserting ineligibility to prove it. Smith v. Grand United Order of O.F., etc., Dist. G. L.N.O. 21, La.App., 136 So. 124, 125. One claiming the proceeds of a life insurance policy as against the beneficiary named therein has the burden of establishing such claim. Rohde v. Metropolitan Life Insurance Co., 233 Mo.App. 865, 111 S.W.2d 1006; Finegan v. Prudential Insurance Co., 300 Mass. 147, 14 N.E.2d 172, 116 A.L.R. 535; 29A Am.Jur., Insurance, § 1864, p. 928.

In the case of Rohde v. Metropolitan Life Insurance Co., supra, the court said: “Defendant having made payment to a person to whom it was expressly authorized to make payment, that is, to a ‘relative by blood,’ the burden was on plaintiff to show that the payment was made in bad faith. There being no evidence of bad faith, there was no issue for the jury, and the instruction in the nature of a demurrer to the evidence was rightly given.” (111 S.W.2d l. c. 1009.)

In the instant case plaintiff did not plead lack of good faith on the part of the defendant nor is there any evidence or proof adduced by plaintiff to show lack of good faith on the part of defendant in making the payment of the proceeds due under the policy to Truman F. Brown. It was held in the Rohde v. Metropolitan Life Insurance Company case, supra, that the discretion of the insurer in making payment under policies involved ought not to be interfered with by the court except upon a clear showing of bad faith. Such a showing of bad faith is lacking in the instant case. Absent any proof on the part of plaintiff that would tend to discredit the proof we have outlined above, defendant is entitled to a judgment as a matter of law.

However, plaintiff contends in support of his assignment of error that the decedent could not have signed the change of beneficiary form at the office of the Unity Welfare Association on June 28, 1960, because he was not out of the house on that day, until he was taken to the hospital. Plaintiff’s proof in support of this contention consists of the hospital record attached to the affidavit of the son of the decedent, which hospital record discloses that the insured arrived at the hospital at 5 :55 P.M. The testimony on which plaintiff relies is that of Truman F. Brown, brother of the deceased; that the insured left the house at 4106 Clara at about noon on June 28, 1960, almost six hours before his arrival at the hospital and the testimony of the sister-in-law which shows that the deceased left the house at 4 P.M., about two hours before reaching the hospital. The answer to plaintiff’s contention, that readily comes to mind, is that the deceased had ample time on his way to the hospital to have stopped at the office of the Unity Welfare Association, Inc., and made the change of beneficiary as shown on the change of beneficiary form. If he did not stop at the Unity Welfare Association, Inc., office on his way to the hospital, a question comes to mind: “What was he doing between the time he left the house and the time he arrived at the hospital?” for according to the testimony relied on by plaintiff he left the house at least two hours and maybe six hours before he arrived at the hospital. He had ample time within which to have stopped at the Unity Welfare Association, Inc., office and have executed the change of beneficiary form which he had promised his brother on the previous Sunday he would do.

Plaintiff does not explain why he did not take the deposition of or obtain an affidavit from the ambulance driver. He makes no mention at all of this possible witness. Plaintiff in his affidavit in support of his own motion for summary judgment and in his brief before this court chose to rely on the testimony of Truman F. Brown to support this part of his contention that the insured could not have signed the change of beneficiary form at the Unity Welfare Association, Inc., office on June 28, 1960. He has thereby vouched for the testimony of this witness and is bound by it. Hadley Bros. Uhl v. Scott, Mo.App., 93 S.W.2d 276. The testimony of Truman F. Brown shows insured had ample time to have stopped by the office of the Unity Welfare Association and to make the change of beneficiary he had promised to make.

In his next contention plaintiff states that it does not appear that James Monroe Brown, the deceased, executed or signed the change of beneficiary form and claims that the file is replete with testimony and admissions which cast serious doubt on the validity of the change of beneficiary form relied on by defendant. We have shown that the execution of the change of beneficiary form was sufficiently proved by defendant. In this connection plaintiff relies principally on statements in the deposition of Truman F. Brown that the signature on the change of beneficiary form “did not appear to be that of his brother” and that he could not identify it as the signature of his brother, although he positively asserted that he knew what his brother’s signature looked like. A fair appraisal of the testimony of Truman F. Brown shows that he had not seen his brother write his signature for a number of years and when shown the signature on the change of beneficiary form his ultimate testimony shows that he would not say it was and would not say that it was not his brother’s signature, his exact testimony being when he was asked if “it doesn’t look like his signature ?” he said, “I wouldn’t say that, I wouldn’t say it wasn’t and I wouldn’t say it was.”

Plaintiff also relies upon the testimony of Betty Tuck appearing in her deposition wherein she could not recall any of the physical characteristics of the person who signed the change of beneficiary form, that is, whether he was young or old or whether it was a man or a woman. She did verify her signature appearing on the change of beneficiary form as a witness and she did witness the signing of the beneficiary form by the member whose physical description she could not give. It is not unusual for one acting in the capacity of a typist-clerk, and no doubt witnessing the signing of many papers, to fail to remember the physical description of a person who signs papers before her, which, no doubt, was a part of her daily routine. This testimony of Betty Tuck in no way casts serious doubts, as contended by plaintiff, on the validity of the change of beneficiary form relied upon by the defendant. If anything, in a measure, it supports defendant’s claim in that it shows that the signature appearing on the change of beneficiary form was signed in the office of the Unity Welfare Association, Inc., on June 28, 1960, in the presence of Betty Tuck. It will be recalled that Grace Brown positively identified the signature as that of the the insured James Monroe Brown.

Plaintiff has made no charge of forgery in his pleadings and the significant thing, and rather amazing, is the failure of plaintiff, who is the son of the insured, to state under oath by deposition or affidavit or in any other manner that the signature appearing on the change of beneficiary form is not that of his father and is not genuine. In the case of Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87, l. c. 94, in commenting on the failure of a party to testify when confronted by evidence of fraud sufficient to make a prima facie case to matters peculiarly within her knowledge, the court said: “Accordingly, we draw the inference that the truth would not have aided her cause and her testimony would have been unfavorable.”

Plaintiff’s contention and attempted proof falls short of discrediting the proof of defendant which, as we have said, shows that there is no genuine issue as to any material fact. Nothing plaintiff has offered raises a doubt as to the genuineness of the insured’s signature as appearing on the change of beneficiary form.

Plaintiff makes the charge that the summary judgment in favor of the defendant deprives him of the benefit of testimony of handwriting experts which could have been brought before the court during a trial on the merits. This deprivation seems to have been conceived in the mind of plaintiff for the first time in the preparation of his brief on this appeal. He made no such offer in the trial court.

The testimony of a handwriting expert would only be material in the instant case where it is intended to show that the signature on the change of beneficiary form was not genuine and, therefore, a forgery. As we have pointed out, plaintiff has made no charge of forgery in his pleadings. There is a more significant answer to this contention of plaintiff and it is the duty imposed upon plaintiff by the provisions of Civil Rule 74.04(e), V.A.M.R., which makes it the duty of plaintiff, when a motion for summary judgment is made and supported as provided in the Rule, to respond, by affidavits or otherwise as provided in the Rule by setting forth therein specific facts showing that there is a genuine issue for trial. This is the duty imposed upon an adverse party to one moving for a summary judgment. Plaintiff’s response, as we have pointed out, and the facts set forth therein, do not discredit defendant’s proof offered in support of its motion for summary judgment. It was incumbent upon plaintiff in responding to defendant’s proof to present, by deposition or affidavit, testimony of a handwriting expert which would tend to show that there is some doubt about the genuineness of the insured’s signature as appearing on the change of beneficiary form. Plaintiff did not so respond and under the above provision of the rule summary judgment shall be entered against him.

It should be noted that if the abstract statement appearing in plaintiff’s brief, that he could produce witnesses to refute the proof submitted by the moving party for summary judgment, was acceptable to defeat defendant’s judgment, then such a procedure, if tolerated, would completely circumvent the purpose of the rule permitting summary judgments. That is why the rule provides that, * * * an •adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Civil Rule 74.04(e), V.A.M.R. (Emphasis supplied.) Zoby v. American Fidelity Co., supra.

The final point made by plaintiff is that he was deprived of the right “to attack defendant’s evidence on cross examination.” He claims that he should have the right to interrogate Truman F. Brown, Grace Brown, and Betty Tuck in open court. This contention is without merit because plaintiff took the depositions of the three witnesses and had the right to examine them fully at the time. As a matter of fact plaintiff relies upon the testimony of these three witnesses, as found in their depositions, to support his motion for summary judgment. He cannot now be heard to assert that he was denied the right to interrogate these witnesses. He also states in his brief that he “does not quarrel with the honesty of Dorothy Lange, whose affidavit was attached to defendant’s motion as an exhibit, yet plaintiff most assuredly should have the right to cross-examine her as to the statements she has made in her affidavit and to test her as to credibility and character.”

A glance at the affidavit of Dorothy Lange and the testimony given by Betty Tuck in her deposition indicates that both were employees of the Unity Welfare Association, Inc., and both testified to the same matters. The testimony of Dorothy Lange dealt wholly with identifying the records of the Unity Welfare Association, Inc., pertaining to the insurance policy in suit. We feel that plaintiff was not prejudiced in any manner by failing to have the opportunity to cross-examine Dorothy Lange. As we have said, her affidavit merely identified the records of the Unity Welfare Association, Inc., and, therefore, we cannot see that her credibility or character would be an issue in the case. We can conceive of no prejudice to plaintiff in the summary judgment procedure below and inasmuch as no genuine issue appears as to any material fact, the judgment of the trial court should be affirmed. It is so ordered.

WOLFE, J., and WILLIAM M. KIM-BERLIN, Special Judge, concur.


author: ANDERSON, Judge.

text:
    Arthur M. STEVENS, (Plaintiff) Respondent, v. Wilton WALDMAN, (Defendant) Appellant.
    No. 31396.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 12, 1964.

      George F. Heege, III, Heege & Heege, Clayton, for appellant.
    Byron A. Roche, John T. Murphy, Jr., Murphy & Roche, St. Louis, for respondent.
   ANDERSON, Judge.

This is an action by Arthur M. Stevens against Wilton Waldman, to recover damages for personal injuries alleged to have been sustained on April 16, 1959, as a result of a collision at or near the intersection of East Taylor Avenue and North Broadway in the City of St. Louis, between an automobile being driven by plaintiff and a car owned and operated by the defendant. There was a verdict and judgment for $2500.00 in favor of plaintiff. Defendant has appealed.

North Broadway runs in a general northerly and southerly direction. East Taylor Avenue is an east and west street. Traffic at the intersection of these two streets is controlled by electric signals which permit a left turn upon a proper signal. That portion of East Taylor for eastbound traffic has three lanes. Each traffic lane is about ten feet wide. Except for the left turn lane, the traffic lanes are not separated by a white line. East Taylor is paved with asphalt.

At about 7:45 A.M. on April 16, 1959, and just prior to the accident, plaintiff was operating his 1952 Dodge Automobile east-wardly on East Taylor and was approaching North Broadway intending to make a left turn north onto North Broadway. He was traveling in the left turn lane, which was immediately south of the center line of the street. As he approached the intersection there were three or four automobiles, ahead of him, facing east. In the automobile with plaintiff, at the time, was a hitch-hiker whom he had picked up some time previously, about two miles from the scene of the accident.

The hitch-hiker was a young man, whose name plaintiff did not know. He had his lunch with him and sat alongside of plaintiff in the front seat of the car. He told plaintiff that he intended to go to Broadway and East Taylor.

Plaintiff had owned the Dodge car he was driving for about a year. The right door of the car was hinged toward the front of the car and opened out from the center post. The rear edge of this door did not fit properly; it stuck out about an inch.

Plaintiff brought his car to a stop in the left turn lane, behind three or four cars that were also stopped. There was an automobile being operated by Virginia Goss which was stopped to the right or south of plaintiff’s car, and about even with it. All these cars were waiting for the traffic lights to change.

On direct examination plaintiff testified that the distance between the right side of his automobile and the left side of the Goss car was, “I’d say five or six feet.” On cross-examination he stated that the distance was “I would say between five and seven feet, somewhere in there.”

Defendant on the day of the accident was driving a 1950 Jaguar sports car. This car, according to defendant’s testimony, is about fifteen feet long and sixty-four to sixty-four-and-one-half inches in width. The hub caps, or “knock-off hubs”, as they are referred to in the evidence, on this car extended one and one-half inches beyond the side lines of the car. The axles, through the hub for the front and rear wheels, are approximately the same length, and the “knock-off hubs” are the same height off the ground. The greatest width -of the car is at the front wrap-around bumper, which extends beyond the hub caps. The car was built lower than regular American automobiles of that time. The car from the doors tapered toward the rear.

After plaintiff had been stopped for a few seconds, defendant drove his car into the space between plaintiff’s car and the car of Virginia Goss. Plaintiff felt two jars, one slightly heavier than the other. He looked around to see what had happened and saw the right door of his c'ar crushed. The outer edge of the door was hooked onto the rear fender of defendant’s car.

In a deposition introduced in evidence by plaintiff, the defendant testified that the right front door of plaintiff’s car came in contact with the “knock-off hub” of the left rear-wheel of his car. He also testified that, after he heard the impact, his car was pushed toward the right and came in contact with the car on his right. This was the automobile driven by Virginia Goss. He stated there was no damage to his car from this contact. Virginia Goss testified there was damage to her car, for which she made a claim against defendant. The details with reference to this damage were not developed by the evidence. Her claim was not paid.

Plaintiff testified on cross-examination that except for the point where the right door was in contact with defendant’s car, the distance separating the two cars was about eight to ten inches. When asked by-defendant’s counsel if the distance could have been so much as twelve to sixteen inches, plaintiff replied, “It could have been.”

Plaintiff testified that five seconds before the impact the hitch-hiker was sitting in the car; that he never saw the hitch-hiker attempt to get out of the car. He further stated he did not know what the hitchhiker was doing at the time of impact, because he was watching the traffic light across the street. A few minutes after the impact the hitch-hiker disappeared. Defendant testified he never saw the door of plaintiff’s car open before the accident, nor did he see anybody get out of plaintiff’s car.

Defendant testified that he was going very slowly, about five to six miles per hour, and brought his car to a stop within five or six feet after the impact. He also stated that there was a clearance of one foot between his car and plaintiff’s car and the automobile of Virginia Goss, as he was passing between the two cars.

Defendant produced the police officer who had investigated the accident. The officer testified that plaintiff told him that the hitch-hiker was alighting from the car at the time of the accident.

As a result of the collision, plaintiff was thrown about in his car and according to his testimony sustained the injuries for which he brought this suit.

Appellant’s first assignment of error is that the court erred in refusing to direct a verdict at the close of the whole case. In support of this assignment, it is urged that there was no substantial evidence to support the theory of negligence submitted. The only theory of negligence submitted to the jury was, that defendant attempted to drive his automobile in the space between plaintiff’s car and the automobile of Mrs. Goss, when there was not sufficient room between said vehicles to do so without colliding with plaintiff’s car. Under the authorities, we are limited to a determination as to whether the evidence is sufficient to support said assignment. We cannot examine the record to ascertain if plaintiff made a case under the other assignments of negligence pleaded. When plaintiff elected to submit his case solely upon the foregoing assignment of negligence, he abandoned all other allegations of negligence. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Welch v. McNeely, Mo., 269 S.W.2d 871; Kirks v. Waller, Mo., 341 S.W.2d 860. And in passing on the question now before us, we will consider the evidence in the light most favorable to plaintiff, give plaintiff the benefit of all favorable inferences arising therefrom, and disregard defendant's evidence unless it aids plaintiff’s case. Kirks v. Waller, Supra.

With the last mentioned rule in mind, we believe that it could reasonably be found from the evidence that there was a distance of five feet or sixty inches separating plaintiff’s car from the vehicle on his right which was being operated by Mrs. Goss; that the width of the body of defendant’s Jaguar was sixty-four and one-half inches; that the “knock-off hubs” on said car extended one and one-half inches beyond the body of the car on each side thereof, making a total width of the car, sixty-seven and one-half inches. Under the foregoing state of facts it is clear that plaintiff made a case for the jury under the theory of negligence submitted.

But appellant contends that plaintiff was bound by the testimony of defendant, given in a deposition, which deposition was introduced in evidence by plaintiff. In that deposition, defendant stated that there was at least one foot clearance-on either side of his automobile as he passed' between plaintiff’s car and the car of Mrs. Goss. But plaintiff is not bound by this testimony since it was contrary to plaintiff’s own testimony. As heretofore stated, the rule is firmly established that in determining the sufficiency of the evidence to support a submission of negligence, plaintiff is entitled to the benefit of all favorable evidence and all favorable inferences therefrom. And this is true whether such evidence is introduced by plaintiff or defendant, except where evidence upon which he seeks to rely is contrary to plaintiff’s own testimony, or is at war with the theory of his case. Anthony v. Morrow, Mo.App., 306 S.W.2d 581. He is only bound by testimony introduced by him where such testimony is the only evidence as to the fact in issue. In the case at bar defendant’s testimony in said deposition tending to show the width of the space between plaintiff’s car and that of Mrs. Goss, was not the only evidence in the case. Plaintiff testified as to the width of said space; defendant testified as to the width of his car, and from this evidence the jury could find that defendant’s car could not be driven through that space without colliding with plaintiff’s car. Plaintiff was not bound by the testimony of defendant from which a different inference could be drawn.

Appellant also argues that there was no direct evidence that defendant’s car struck the door of plaintiff’s car, and for that reason plaintiff failed to make a case for the jury. It is true that plaintiff did not actually see defendant’s car strike any part of his car. However, there was evidence that plaintiff’s car was stopped at or near the intersection when he felt two jars, one slightly heavier than the other, and when he looked around he saw the right door of his automobile crushed and in contact with defendant’s car; that defendant’s car was in the space between his car and that of Mrs. Goss; that prior thereto this space had not been occupied by any vehicle; that there was evidence from which it could reasonably be found that this space was too narrow to permit an automobile free passage; that the right door on plaintiff’s car was sprung so that it extended one inch beyond the body line of said car; that there was testimony from defendant that he drove into this space between plaintiff’s car and the car of Mrs. Goss; that while his car was moving into' said space he heard a thud; that the rear end of his car was, at the time pushed to the right; he looked around and saw the door of plaintiff’s car in contact with his car at the left rear “knock-off hub”; that the door of plaintiff’s car was damaged, the outer edge twisted and the door folded from inside out, and that he did not see anybody open the door of plaintiff’s car at any time.

We believe that it could reasonably be found from the foregoing evidence that defendant’s car ran into the plaintiff’s car door as defendant proceeded into the space between plaintiff’s car and the car being operated at the time by Mrs. Goss, and that it was through defendant’s negligence in the respects submitted that the collision occurred.

It is further argued that the only logical inference that can be drawn from the evidence is that the hitch-hiker, intending to alight from plaintiff’s car, negligently opened the door causing it to come in contact with the left rear fender of defendant’s car. Nobody at the trial testified to having seen the hitch-hiker open the door, and the only evidence that he did, was the testimony of the police officer, who stated that plaintiff told him at the scene of the accident that a hitch-hiker was, at the time of the accident, getting out of the car. The police officer was defendant’s witness, and his testimony, at most, merely raised an issue for the jury. It did not destroy plaintiff’s case established by the circumstantial evidence. There is no merit to defendant’s first point.

It is next urged that the court erred in failing and refusing to declare a mistrial and discharge the jury when defendant’s witness Goss, in answer to a question propounded by plaintiff’s counsel, stated she had made a claim against defendant’s insurance company for the damage to her automobile.

During the cross-examination of Virginia Goss, who was a witness for defendant, plaintiff’s counsel inquired of the witness if she had made a claim against anyone for the damage to her car. Defendant’s counsel interposed an objection to this question, which obj ection was, by the court, sustained. Thereafter, there was a discussion about this matter between the court and counsel outside of the presence of the jury. In this discussion plaintiff’s counsel stated, that if a claim was made and paid it would tend to show the interest of a witness and affect her credibility. Counsel for defendant stated that the witness had made a claim but was not paid. The following then appears:

“The Court: We are going on dangerous ground here; if she says against an insurance company, you are done.
“Mr. Roche: I am not done. If she says ‘yes’, my next question will be ‘did you make one against Mr. Waldman’, and if she volunteers an answer that’s not called for I don’t think I am—
******
“The Court: Tell her to answer yes or no whether she made a claim, and then the other. Is that all right?
⅝ ⅜ ⅜ ⅜ ⅜ ⅜
“Q. (by Mr. Roche) : The question, Miss Goss, I think it can he answered with a yes or no, if you don’t mind, if you can, did you make a claim against Mr. Waldman for the damage to your vehicle ?
“A. By a claim — I mean, just, do you mean I reported it to his insurance company?
“Q. Did you make a claim against him for the damage to your car ?
“Mr. Heege: If the Court please. I think at this time I am going to be forced to ask for a mistrial and discharge of the jury.
“The Court: Denied.
“(to the witness) The question can be answered yes or no. You were advised that at the beginning of the question.
“A. I don’t quite understand * * *.
“The Court: Well, it’s very simple.
“A. —the mention of a claim. I did report it to his insurance company.
“The Court: You don’t want to listen to me either, is that what you are saying?
“A. I’m sorry.
“Mr. Heege: Same motion; same grounds.
* * * * * *
“A. Well, I guess I’d have to almost say yes.
“Q. (By Mr. Roche) You were paid for that claim?
“A. No.
"Q. And do you have any negotiations or understanding to be paid after this lawsuit is over with?
“A. No.”

It will be observed that the reference to defendant’s insurance company was not a responsive answer to the question asked. The question was proper. Plaintiff had a right to know if Mrs. Goss had made a claim against defendant for the damage to her car, and if so, whether it had been paid. Counsel took the precaution, as suggested by the Court, to advise the witness that the question could be answered yes or no. Yet, in spite of the carefully worded question, Mrs. Goss, who was defendant’s witness, over whom plaintiff had no control, did not answer the question. Instead she responded by asking plaintiff’s counsel a question; she said “do you mean I reported it to his insurance company ? ” There is nothing in the record to indicate that counsel for plaintiff intended to elicit this response to his question. No objection was made immediately after the objectionable matter was uttered, nor was there any request made of the court to strike or instruct the jury to disregard it. Instead counsel for defendant asked for most drastic remedy a mistrial and discharge of the jury. Whether such a sanction should be applied in a situation such as here presented rests within the sound discretion of the court. Plannett v. McFall, Mo.App., 284 S.W. 850; Jones v. Missouri Freight Transit Corp., 225 Mo.App. 1076, 40 S.W.2d 465; Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458. And unless there has been a clear abuse of such discretionary power, it is not within the province of an appellate court to interfere. Plannett v. McFall, supra. We do not find an abuse of discretion, and for that reason must rule this point against appellant.

Appellant complains of Instruction Number 1 given at plaintiff’s request. It is contended that the Instruction permitted the jury to find for plaintiff on a theory of negligence not pleaded.

The negligence pleaded was (a) negligent rate of speed; (b) failure to keep a proper and adequate lookout ahead and laterally; (c) that defendant then and there negligently and carelessly caused, allowed and permitted his said automobile to strike and violently collide with the stopped automobile ; (d) that defendant negligently and carelessly failed and omitted to stop his said automobile or swerve the same and thus have avoided the collision; (e) that defendant negligently failed to keep his automobile under control so that it could be readily stopped on the first appearance of danger; (f) negligence under the so-called humanitarian doctrine.

Instruction Number 1 submitted as a ground of negligence that defendant attempted to drive his automobile between plaintiff’s car and the vehicle stopped on plaintiff’s right when there was not sufficient space for defendant to pass.

It appears from the transcript that defendant’s counsel made no objection to the evidence tending to show the negligence submitted as being outside the scope of the pleadings. In fact, defendant joined issue by introducing evidence which, if believed, tended to show that the space he drove into was sufficient to permit the passage of automobiles. Under such circumstances the issue submitted should be treated in all respects as if it had been raised by the pleadings. Civil Rule 55.54 V.A.M.R. Dawley v. Hoy, Mo., 341 S.W.2d 111, 115.

There are several other complaints made against this instruction which we will not consider for the reason that the objections to said instruction in the motion for new trial were not sufficient to preserve for review the complaints now being made in this court. Civil Rule 79.03 V.A.M.R. provides, among other things, that “[i]f any specific objections to instruction 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 new trial to preserve the error for review.”

Only general objections were made when the instruction was given. Defendant’s complaint of Instruction Number 1 in his motion for new trial was “that said instruction is vague, indefinite and confusing and that it gives the jury a roving commission, and for the further reason that said instruction is outside the scope of the plaintiff’s pleadings and is therefore erroneous.” Except for the complaint that the instruction went beyond the scope of the pleadings, a point we have ruled, the objections were insufficient to preserve anything for review. To be proper, an objection should be specific, in the sense that it points out with a reasonable degree of definiteness, what is actually claimed to be wrong with the instruction in language which will inform the court of the point urged and sought to be preserved and presented to the appellate court. The objections made, with the exception noted, do not do this and are, therefore, insufficient under Civil Rule 79.03 V.A.M.R. Ayres v. Keith, Mo., 355 S.W.2d 914; Adair v. Cloud, Mo., 354 S.W.2d 866.

The court gave at defendant’s request Instruction No. 6, which was a sole cause instruction, by which the jury was instructed that they should find for defendant, if they found that the sole cause of the collision was the sudden opening of the right front door, by plaintiff’s passenger, into the path of defendant’s car and in such close proximity thereto as to make it impossible for defendant to prevent his automobile from striking plaintiff’s automobile. By plaintiff’s Instruction No. 7 the jury was instructed that if the negligence of defendant, if any, and the negligence, if any, of the passenger concurred in causing plaintiff’s injury, the verdict should be for the plaintiff.

Appellant complains that the giving of Instruction No. 7 was error for the reason that it conflicts with plaintiff’s verdict-directing instruction and plaintiff’s theory of the case. No such specific objection was made at the trial, or in defendant’s Motion for New Trial. For that reason, under Civil Rule 79.01 V.A.M.R. and Civil Rule 79.03 V.A.M.R., the error complained of is not properly before us.

The judgment of the trial court is affirmed.

RUDDY, P. J., and WOLFE, J., concur.