author: CROSS, Presiding Judge.

text:
    KEARNEY COMMERCIAL BANK, Plaintiff-Appellant, v. Madonna R. DEITER (Administratrix of the Estate of Lewis L. Deiter, deceased), and First National Bank of Liberty, Missouri, Defendants-Respondents.
    No. 24528.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.

      Sevier & Turnage, Liberty, for appellant.
    James, McFarland & Trimble, by James G. Trimble, North Kansas City, for Madonna R. Deiter.
   CROSS, Presiding Judge.

Plaintiff Kearney Commercial Bank appeals from a judgment of the circuit court dismissing its petition to invoke the equitable remedy of interpleader by requiring defendant Madonna R. Deiter, Administra-trix of the Estate of Lewis L. Deiter, deceased, and defendant First National Bank of Liberty, Missouri, to interplead and litigate their conflicting claims to the sum of $9,700.80, held by plaintiff bank as a deposit to the account of defendant ad-ministratrix. The controversy arose upon facts here set out.

Lewis L. Deiter, resident of Clay County, Missouri, died on July 17, 1965, owning property consisting principally of 68 head of cattle and a bank account inventoried as in the amount of $1,977.73, on deposit with defendant First National Bank of Liberty, Missouri, hereinafter sometimes designated as “First National”. Administration of the estate was duly instituted by application for and issuance of letters of administration to decedent’s daughter, Madonna R. Deiter. The 68 head of cattle were sold at private sale (subsequently approved by the probate court) for the sum of $9,468.92, which was deposited in plaintiff bank (sometimes hereinafter referred to as “Kearney Commercial”) to the account of Madonna R. Deiter, as administratrix of her deceased father’s estate.

Thereafter First National informed Kearney Commercial by letters that it (First National) had a chattel mortgage on certain cattle owned by deceased; that such mortgaged cattle had been sold without mortgagor’s consent; that the sale proceeds were on deposit in Kearney Commercial to the credit of Madonna R. Deiter, as administratrix; and, that First National considered itself to have an equitable lien on the deposit and claimed to be the owner thereof. After receipt of this information, Kearney Commercial refused payment of a check drawn by the administratrix on the estate account in the amount of $2,300.00 payable to her mother, Mrs. Lewis L. (Charlotte C.) Deiter, widow of decedent, as and for one year’s support allowance previously ordered by the probate court.

Following this refusal to honor her check drawn upon the estate account, the admin-istratrix instituted a proceeding in the probate court to discover assets in the hands of Kearney Commercial under provisions of Section 473.340 V.A.M.S. That proceeding progressed to a hearing in which appearances were made on behalf of Kearney Commercial, the administratrix, and First National, by their respective counsel. Testimony of one witness was heard — that of Cecil Turnage, Kearney Commercial’s cashier. He was preliminarily examined by counsel for administratrix and cross examined by counsel for Kearney Commercial and also by counsel for First National. The substance of the cashier’s testimony was that there was “an obligation on behalf of the Kearney Commercial Bank to a depositor under the name of Madonna R. Dei-ter, Administratrix of the Estate of Lewis L. Deiter, deceased” in the amount of $9,700.80; that Kearney Commercial had refused to pay funds to Charlotte Deiter, widow of decedent, for one year’s living allowance on the administratrix’s check in the amount of $2300.00 and was still refusing to pay the check because the First National was making claim to the deposit fund as proceeds of a sale of some cattle on which it held a chattel mortgage, by reason of which it had a superior lien on the administratrix’s account; that except fot such claim by First National, Kearney Commercial would have paid the $2300.00 check drawn by administratrix; and, further, that Kearney Commercial had no claim of ownership of any amount of the account.

At the conclusion of the cashier’s testimony, counsel for all three parties addressed the court. Counsel for the administratrix moved for summary judgment “in order to get that money paid to the administratrix”. Counsel for Kearney Commercial informed the court that his client was in the position of a stakeholder, had no claim to the funds, and had no objection to paying the money to “somebody”, but was faced with the claim of the First National and didn’t want to have to pay it a second time. Counsel for First National argued to the court against the propriety of the proceeding, admitted that First National’s claim gave rise to the controversy, agreed that Kearney Commercial was a mere stakeholder, and requested specific relief from the court as follows:

“Now, if the court does entertain or make a summary judgment at this time in connection with this matter, I would like to have the right to insist on another bond being submitted; because I question the validity of that particular bond that’s in the estate, right now. I don’t recall how much it’s for”.

At the conclusion of the hearing the probate court rendered no decision but took the matter under advisement pending receipt of answers to interrogatories the admin-istratrix had propounded to Kearney Commercial.

Two days after the hearing above noted Kearney Commercial commenced this suit in circuit court by filing its “petition in inter-pleader” said by its author to be “in conventional form”. The pleading contains allegations of fact substantially as heretofore set out in this opinion, indicating that each of the within named defendants claims to be the owner of the $9,700.80 bank deposit held by plaintiff bank. The petition further alleges that plaintiff is in doubt as to which claimant is entitled to the fund, that plaintiff is ready and willing to pay it over to the person lawfully entitled thereto, that each of the defendants has threatened suit against plaintiff to recover the sum in dispute, and that plaintiff has no adequate remedy at law “and may be subjected to multiple liability for a single liability”. The prayer of the petition is that plaintiff be allowed to bring the $9,700.80 into court and that the defendant adminis-tratrix and the defendant First National be required to answer and interplead with each other to determine who is entitled to receive payment of the account held by plaintiff.

Subsequent to service of summons upon it as a party defendant and filing answer in the interpleader action, First National submitted its claim to the Probate Court of Clay County by filing therein its demand for payment of promissory notes executed by decedent aggregating $10,369.15, described as “secured by a chattel mortgage executed by the deceased”. The demand states that “all cash assets shown in the inventory and appraisement in said estate as being received from the sale of livestock are subject to the lien of said chattel mortgage inasmuch as said proceeds were received from the sale of livestock included under the terms and provisions of said chattel mortgage”. An additional amount of $1777.73 was claimed in the event offset credits on certain of the notes taken from decedent’s account in the stated amount should be disallowed.

Defendant administratrix filed a motion to dismiss plaintiff’s petition in interpleader on alleged grounds (1) that a prior action was pending in the probate court between the same parties for the same cause and (2) that the circuit court was without jurisdiction because the probate court had exclusive original jurisdiction of probate matters and afforded plaintiff an adequate remedy for its relief under Section 473.357 V.A.M.S. Defendant First National in its answer admitted the allegations of plaintiff’s petition, alleged affirmatively that it was entitled to the funds and “joined with plaintiff in praying that the court order both defendants to file their respective in-terpleas asserting their respective claims to the funds on deposit”.

One hearing was held by the circuit court in the interpleader suit, in which all three parties appeared, defendant administratrix’s motion to dismiss was submitted to the court and documentary exhibits were identified and admitted as evidence in the case. These exhibits include (1) the entire probate court file in Case No. 5139, same being the administration proceedings in the estate of Lewis R. Deiter, (2) transcript of the hearing held pursuant to the administratrix’s discovery proceeding against Kearney Commercial (previously referred to) and (3) transcript of a hearing pursuant to discovery proceeding instituted in probate court by the administratrix against First National involving a bank deposit controversy (which has no material bearing on the issues in the instant case). No oral testimony was heard. On a day subsequent to the hearing the circuit court entered a judgment of dismissal by sustaining “defendant Madonna R. Deiter’s motion to-dismiss”.

Appellant’s brief presents one point — that the dismissal of its petition constituted error. To support this contention appellant argues (1) that there was no pending action in the probate court between the same parties for the same cause, and (2) that “the exclusive jurisdiction of an inter-pleader suit is in the Circuit Court, and— the subject of the conflicting claims being assets of an estate pending in the Probate Court does not rob the Circuit Court of its jurisdiction in these cases”.

It is argued on behalf of responding defendant Deiter that the dismissal of plaintiff’s petition was proper because “another action was already pending in the probate court between the same parties in the same cause as the cause involved in this action”. This she identified as the discovery proceeding against Kearney Commercial and argues that First National entered its appearance therein as a claimant to the identical deposit fund in the hands of Kearney Commercial by reason of its attorney having participated in the discovery hearing. As will later appear it will not be necessary that we decide this very close question. Additionally administratrix suggests the availability of certain statutory remedies as-sertable in probate court by Kearney Commercial and First National. Respondent First National has filed no briefs.

Since this appeal is from a judgment rendered in an equity action it is our duty to try the case de novo, reach our own conclusions upon review of both the law and the evidence without regard to the trial court’s rulings and give such judgment as the trial court should have given. Civil Rule 73.01(d) V.A.M.R. See Commonwealth Trust Co. v. DuMontimer et al., 193 Mo.App. 290, 183 S.W. 1137, where the court stated: “The cause, being on inter-pleader, was tried as in equity. Hence the whole case, both on the law and the evidence is open to us”.

Kearney Commercial’s petition pleads for relief under the ancient remedy of interpleader as recognized in equity and existing independent of Section 507.060 V.A.M.S. which supplements the remedy in question. The cited statute does not create, destroy or change the nature of equitable interpleader, but merely broadens the scope of that remedy and is purely a procedural statute. Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17. The remedy is defined as follows in Baden Bank of St. Louis v. Trapp, Mo.App., 180 S.W.2d 755: “A suit in interpleader is an equitable remedy, which, generally speaking, may be resorted to where two or more persons severally claim the same debt, duty, or thing from the complainant under different titles or in different interests, and the complainant, claiming no title or interest for himself, and not knowing to which of the claimants he should render the debt or duty or deliver the property, is either molested by an action brought against him, or else is in fear that he may suffer injury from the conflicting claims advanced against him unless the claimants are all brought into court and required to interplead their several claims so that the court, with all the claimants before it, may adjudicate their respective claims and determine which of them has the right to be awarded the matter or thing in controversy. W. A. Ross Const. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524; Prudential Ins. Co. of America v. Sheehan, Mo.App., 100 S.W.2d 57”.

It is well established law that in-terpleader in equity is not maintainable if another adequate remedy is available, W. A. Ross Const. Co. v. Chiles, supra; where there is a proceeding pending against the complainant in which he may have complete relief with full protection to himself by asking that other claimants be made parties to the end that their respective claims, may be adjudicated; or, where the holder of the fund or property claimed has a complete and adequate remedy at law which will afford him full relief. Baden Bank of St. Louis v. Trapp, Mo.App., 180 S.W.2d 755. These principles observed by Missouri courts are consistent with the general rule stated in 30 Am.Jur., Interpleader, Sec. 8,. page 486, quoted as follows: “One of the-general rules regulating the subject of in-terpleader is that the plaintiff must have’ no other means of protecting himself from, litigation in which he has no interest. He is not entitled to the equitable remedy of in-terpleader if he has a plain, speedy and adequate remedy at law * * *

The case of Baden Bank of St. Louis v. Trapp, supra, has material bearing on the question whether Kearney Commercial was entitled to maintain its interpleader in equity. The cited case was brought in circuit court by the Baden Bank as an interpleader action in equity for the purpose of having an adjudication of conflicting claims as between two of its depositors on the one hand, and a garnishing creditor on the other, with respect to the ownership of certain money on deposit in the bank. The circuit court overruled demurrers to the bank’s petition and required defendants to interplead. On appeal the question was tendered whether the bank was entitled to invoke the jurisdiction of equity by an independent suit in interpleader or whether its remedy was “one in the nature of equitable relief by asking that the claimants be required to inter-plead in the garnishment proceeding”. The latter alternative was a procedure available under Section 1568 R.S.Mo. 1939 (present Section 525.090 V.A.M.S.), which provided that “Any person claiming property, money, effects or credits attached in the hands of a garnishee, may interplead in the cause, as provided by law in attachment cases; but no judgment shall be rendered against the garnishee in whose hands the same may be, until the interplea shall be determined”.

In considering the question whether equitable interpleader was available to complainant Baden Bank, the court significantly stated: “And of course, even though the facts may be such as to give rise to the right of interpleader, the complainant is nevertheless not entitled to maintain an independent suit in interpleader where there is a proceeding pending against him in which he may have complete relief with full protection to himself by asking that all the claimants be made parties to the end that their respective claims may be adjudicated”. (Our italics). It was pointed out by the court that the plaintiff bank could secure complete relief by utilizing the quoted statutory provision and asking that the depositors (as third parties) be required to inter-plead in the garnishment proceedings to which it and the garnishing creditor were already parties. Accordingly, the court held that the bank’s petition failed to state a cause of action for an independent suit in equity and reversed the trial court’s judgment with directions to sustain the demurrers and dismiss the petition.

The instant case bears close analogy to the Baden case. At the time Kearney Commercial filed its petition for interpleader in equity there was a proceeding pending against it in which it might have complete relief with full protection to itself by asking that all claimants be made parties to the end that their respective claims might be adjudicated. We refer to the discovery proceeding instituted by the administratrix against Kearney Commercial. There can be no doubt that the proceeding involved the idential fund as is involved in the instant interpleader action, that at least two of the parties were identical (the administratrix as named depositor and Kearney Commercial as the depository bank), that the proceeding was duly commenced, and that the probate court acquired full jurisdiction over the cause and the original parties prior to the filing of the interpleader suit in circuit court, and that a conflicting claim was asserted by a third party — First National. Thus we find in this case an essentially identical alignment of parties with conflicting claims to a deposit of funds held by a disinterested bank, as existed in the Baden Bank case when the plaintiff in that suit filed its petition for interpleader in equity. Likewise, in this case, as in Baden, there is a statute available to Kearney Commercial affording an adequate remedy by which it could secure complete relief with full protection to itself in the “proceeding pending — ” by asking that all the claimants be made parties to the end that their respective claims may be adjudicated. Section 362.360 V.A.M.S. entitled, “Interpleader in certain actions — funds may remain in bank — Costs”, provides, in part, as follows:

“In all actions against any bank to recover for moneys on deposit therewith, if there be any person or persons, not parties to the action, who claim the same fund, the court in which the action is pending may, on the petition of such bank, and upon eight days’ notice to the plaintiff and such claimants, and without proof as to the merits of the claim, make an order amending the proceeding in the action by making such claimants parties defendants thereto; and the court shall thereupon proceed to determine the rights and interests of the several parties to the action in and to such funds. The remedy provided in this section shall be in addition to and not exclusive of remedies now or hereafter existing”.

By the express terms of Section 362.360 its provisions apply to “all actions”. The discovery proceeding against Kearney Commercial is “an action”, inasmuch as Missouri courts have consistently held that a discovery proceeding in probate court, whether instituted by the personal representative or an interested person against some other person on behalf of the estate or by an interested person against the administrator or executor, is a suit or action within the meaning of the law. In re Clinton’s Estate, 223 Mo. 371, 123 S.W. 1; Sexton v. Sexton, 295 Mo. 134, 243 S.W. 315; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746. In such a proceeding the property rights of the parties are determined and “the action is one at law”. In re Petersen’s Estate, Mo.Sup., 295 S.W.2d 144 and cases cited. Also see: Courier v. Scott, Mo.Sup., 336 S.W.2d 375; State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909; In re Huffman’s Estate, 132 Mo.App. 44, 111 S.W. 848. In Edlen v. Tweed, Mo.App., 295 S.W.2d 397, the court stated that “The claim of an administrator or executor under § 462.400 (present Section 473.340) is substantially the same as a cause of action in trover or conversion. State ex rel. Lipic v. Flynn, 358 Mo. 429, 215 S.W.2d 446”. In Eckerle v. Wood, 95 Mo.App. 378, 69 S.W. 45, after a thorough review of the cases the court held that a proceeding to discover assets of an estate is a “suit pending” within the meaning of a general statute authorizing the taking of depositions in a “suit pending in any court in this state”. In so holding the court said: “In the case at bar the statutes (sections 74-78, Rev.St.1899) provide a distinct proceeding for the disclosure of assets of an estate in certain circumstances. The proceeding is special, no doubt; but it comprehends all the essential elements of a suit. It presents a moving party, an adverse party, and it requires a decision by a tribunal invested with jurisdiction to determine it. Tygard v. Falor, 163 Mo. 234, 63 S.W. 672. The proceeding is one wherein a trial by jury is expressly authorized. A grant of power implies a grant of all incidental authority necessary to make the principal grant effective. McLorinan v. Ryno, 49 N.J.L. 603, 10 A. 189. A trial by jury of an issue of fact may require the production of testimony by deposition. The provision made for such a trial implies that the legislature regarded the inquiry as in the nature of an action. We consider that it is within the scope of the intention of the legislature in the use of the words ‘suit pending’ in section 2877, Rev.St. 1899”. Although the Code of Civil Procedure does not govern procedure in the probate court, it is recognized and stated by Maus, in 3 Probate Law and Practice, Sec. 511, page 512, that “general statutes pertaining to courts of record, not in conflict with the Probate Code, are applicable to probate courts”. Citing Eckerle v. Wood, supra.

All the foregoing leads to our conclusion that the discovery proceeding instituted in the probate court by adminis-tratrix Deiter against Kearney Commercial is “an action against a bank to recover for monies on deposit therewith” within the meaning of Section 362.360, and that the cited statute is fully applicable to that proceeding as such an “action”. The provisions of Section 362.360 afforded Kearney Commercial a full and complete remedy at law, partaking of the same nature as inter-pleader in equity, summarily available by the simple act of filing a petition asking that First National be made a party to the proceeding in probate court to which it and the administratrix were already parties. Having such remedy available, and the same being adequate to protect its interests in all respects, it follows that Kearney Commercial was not entitled to maintain its separate suit in equity for interpleader and the dismissal of that action by the circuit court was in the proper exercise of its jurisdiction in equity. We so rule.

There is no reason for this court to rule otherwise on the ground that a determination of the interests of the conflicting claimants by the probate court in Kearney Commercial’s discovery proceeding under provisions of Section 362.360 might involve equitable issues or require the exercise of equitable jurisdiction. It can be confidently stated that after many years of confusion and contradiction in court opinions relative to the extent of equitable authority possessed by probate courts, that question has been settled by the later and controlling decisions of the Supreme Court. In the case, In re Myers’ Estate, Mo.Sup., 376 S.W.2d 219, decided nine years after passage of the 1955 Probate Code, the Supreme Court for the first time construed the meaning of that part of Section 472.030 V.A.M.S. which states that the probate court shall have “the same * * * equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters”. In the opinion adopted by the court, en banc, Judge Holman commented that the foregoing language used by the legislature is clear and that “the legislature meant just what it said”. The opinion reasons: “The circuit court- certainly has complete and unrestricted equitable powers in ‘other matters’, i. e., matters properly cognizable before that court. We therefore must conclude that it was intended that this section would give probate courts complete and unrestricted equitable powers ‘in probate matters.’ ” As to what are probate matters, see First National Bank of Kansas City v. Mercantile Bank & Trust Co., Mo.Sup., 376 S.W.2d 164, where it is suggested that “the collection and marshaling of assets, including disputed claims as to what is or is not an asset, the allowance of claims, or demands and the proper distribution of the remainder of the estate to the persons entitled thereto” are examples of matters pertaining to probate business. Also, as noted in In re Myers’ Estate, supra, 1. c. 376 S.W.2d 224, “It is suggested by Judge Welch that ‘a controversy which necessarily is involved in the winding up of the affairs of a decedent, is a matter pertaining to probate business * * *.’ 1963 Wash.U.L.Qr. 346”.

In our opinion the subjects of controversy in this case — involving as they do, questions whether the disputed fund is an asset of the estate, whether the administratrix shall retain it as such, or whether the First National shall secure the fund into its own possession under its claim of priority by reason of mortgage security — are “probate matters” of classic purity. Hence they fall within the category of “matters” in which probate courts are vested with “complete and unrestricted equitable powers”, including authority to entertain the statutory interpleader action allowed by Section 362.360, although its determination to judgment may require equitable procedures and the application of equitable principles.

The results reached in this case are consistent with the intended purposes of the 1955 Probate Code — that is, the administration of decedents’ estates quickly, economically and with finality in one tribunal, without remitting litigants to the delays and expense of proceedings in other courts.

In our consideration of the issues we have carefully examined all cases relied upon by appellant, but we find nothing of pertinent substance therein to warrant different conclusions than those we have expressed.

Accordingly, the judgment of dismissal is affirmed.

All concur.

        . See 23 Mo.L.Bev. 113-156, April 1958, Constitutionality of the Broadened Powers of the Probate Court in Missouri Under the New Code, by Welch, Oliver and Summers; Equity Jurisdiction Under the New Code, 4 Wash.UX.Qr. 309, Dec. 1961, by Judge Welch, and supplement thereto in 1963 Wash.Ui.Qr. 338.


source: Caselaw Access Project

author: MAUGHMER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Frank R. HAILS and Frances P. Hails, v. SYSTEMS CONSTRUCTORS, INC.
    No. 24505.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.

      W. K. Gibson and Martin, Gibson & Gardner, Sedalia, for appellant.
    George H. Mitchell, Pine, Welling, Jones & Mitchell, Warrensburg, for respondents.
   MAUGHMER, Commissioner.

This is a suit to recover damages for loss to crops and livestock belonging to plaintiffs Frank R. and Frances P. Hails. The alleged losses occurred during the period that a missile cable line was being constructed across plaintiffs’ farm by defendant Systems Constructors, Inc., a corporation. Plaintiffs had granted authority to construct the missile cable line to the United States of America and defendant performed the actual construction under such authority. The verdict and judgment were for plaintiffs in the sum of $2,754. Defendant has appealed and presents two assignments of error. It says (1) its motion for a directed verdict should have been sustained, and (2) “the evidence is insufficient to prove a claim against this defendant”.

Plaintiffs insist first, that the appeal itself was not timely taken and should be dismissed. We recite the record facts relative to this point:

1. The verdict of the jury was returned on September 1, 1965.
2. Under date of September 1, 1965, the following entry appears on the judge’s docket: “Judgment for plaintiffs for $2754.00 on verdict”.
3. There is no judgment entry in the circuit court record book prior to February 21, 1966 — almost six months after verdict.
4. On September 15, 1965, defendant filed its “Motion to set aside verdict and judgment and to enter judgment for defendant”. On October 18, 1965, this motion was argued and taken under advisement by the court.
5. On December 2, 1965, defendant filed notice of appeal.
6. On February 18, 1966, the parties filed their “joint motion for entry of judgment nunc pro tunc in accordance with verdict”.
7. On February 21, 1966, the court sustained the joint motion and entered judgment nunc pro tunc in accordance with the verdict and as of September 1, 1965 (date of verdict).

Of course, a judgment in accordance with the verdict should have been entered at the time the verdict was returned. We believe, however, that the trial court was authorized to make such judgment entry nunc pro tunc as it did. The verdict of the jury and the recitation “Judgment for plaintiffs for $2754.00 on verdict”, which was entered on the 'judge’s docket on September 1, 1965, are each written notations or memorandum upon which a nunc pro tunc entry can properly be predicated. Furthermore, neither party objects to this entry of judgment and in fact both joined in moving that it be made.

However, plaintiffs say defendant’s appeal is untimely filed. It is plaintiffs’ contention, as stated in their brief, that the final judgment in this case was not entered until February 21, 1966, (the date of the nunc pro tunc order) and that since defendant did not thereafter appeal, or ever appeal from “said judgment of February 21, 1966”, there is no valid appeal. We disagree. Plaintiffs want liberal construction for entry of their judgment, but rigid construction to deny the right of appeal.

The record in the case before us as to the judgment entry, ruling on after-trial motion, and as to the appeal notice, is certainly irregular as to timeliness. No timely, formal judgment was entered on the verdict, defendant’s after-trial motion does not appear to have ever been ruled except through passage of time (90 days) and defendant filed its notice of appeal before there has been any actual denial of the after-trial motion, and prior to entry of the nunc pro tunc order.

We shall dispose of this particular point involving the judgment and appeal by ruling as follows: (1) We have already approved the nunc pro tunc judgment entry. Although this order was made February 21, 1966, it directed a judgment entry as of September 1, 1965; (2) defendant’s appeal notice was under date of December 2, 1965. On this date defendant’s after-trial motion was still pending. It had not been overruled by the court or by expiration of 90 days after the filing of same; (3) however, as of now, the record recites entry of judgment on September 1, 1965. Defendant did file a timely after-trial or after-verdict motion. Before this motion was acted upon, defendant filed its notice of appeal. The after-trial motion was overruled as of December 14, 1965 (90 days after filing), since it was not passed upon by the court; (4) defendant’s appeal notice of December 2, 1965, is valid and effective under the provisions of Civil Rule 82.05(b), V.A.M.R., which provides:

“In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purpose of appeal”. Sparks et al. v. Daniels et al., Mo.App., 343 S.W.2d 661, 662.

The appeal of December 2, 1965, is effective if we consider the final judgment here entered as of September 1, 1965, or as of February 21, 1966, when the nunc pro tunc order was made. McDaniel et al. v. Lovelace et al., Mo.App., 392 S.W.2d 422, 427.

Defendant’s first contention on appeal is that it was error to overrule its motion for directed verdict. We shall consider this point first. Plaintiffs’ petition alleges that defendant corporation “by and through its agents, servants and employees entered” upon plaintiffs’ lands “for the purpose of constructing and laying a defense missile cable for the United States Department of Defense; that said work and construction covered a period of time from on or about the 1st day of March, 1963 to the 31st day of July, 1963”. (Italics supplied.) The petition alleges further that defendant, in connection with such construction, negligently damaged plaintiffs’ crops and livestock and caused plaintiffs to expend time and labor repairing fences and “rounding up” livestock.

For its answer and defense, defendant, in addition to denying any negligence, alleged that plaintiffs had by written instrument and for a cash consideration compromised and settled any claim for damages which they had by reason of the construction. To present and sustain this defense the defendant relies upon three written instruments, which we must describe somewhat in detail. The first, received as plaintiffs’ Exhibit 1, is a signed, but not notarized document captioned “Right-of-entry for survey, exploration, and construction of cable line and appurtenances”. It is dated December 18, 1961. It is an agreement entered into between the plaintiffs, as owners of a 280 acre farm in Henry County, Missouri, and the United States of America. The subject matter reference thereon is to “Whiteman A.F.B. Interstate Communication System”. Paragraph 1 of this instrument authorized the Government to do exploratory work over the whole farm preliminary to the possible selection of a route and the construction of an underground cable line on plaintiffs’ farm. Paragraph 2 authorized construction of such a line at any time within 36 months. Each paragraph recited that the Government or its assignee would be liable for any damages incurred by the plaintiffs from “activities authorized” under the paragraph. We set out the two paragraph verbatim:

“1. The Owner hereby grants to the Government the assignable and irrevocable right to enter upon the lands described below, at any time within a period of twenty-four (24) months from the date of this instrument, in order to survey; make test borings; stake-out the center-line of the cable line which is to be constructed over a portion of the lands described below; and to carry out other necessary work in connection therewith; it being understood that, whether or not the proposed cable line is constructed over any portion of the lands described below, the Government or its assignee will be responsible for any damage to crops, trees, shrubbery, fences, improvements, and the land itself, resulting directly from the activities authorized under this Paragraph, either by repairing such damage or by making a cash settlement with the Owner in lieu thereof.
“2. The Owner hereby grants to the Government the assignable and irrevocable right to enter upon the lands described below at any time within a period of thirty-six (36) months from the date of this instrument, in order to place a cable line at least 36 inches below the surface of said lands; to place junction boxes, manholes, and other appurtenances, extending to or above the surface of said lands, as necessary; to clear trees, shrubbery, and underbrush, as necessary; and to perform related construction work, as necessary, with the understanding that the Owner will not permanently remove or shift the soil or rearrange the contours or change the level of the surface of the said 35-foot strip, by terracing or otherwise, except after having given 120 days’ advance written notice to the Base Commander of his intention so to do, in order that the Government may, if it so desires, adjust the depth of the cable. The work under this Paragraph will be done within a strip of land 35 feet in width, running through the lands described below, provided that the Government or its assignee shall have the right of ingress and egress over other lands of the Owner, which right shall be exercised in a reasonable manner. After the cable line and appurtenances have been placed, the Government or its assignee will be responsible for any destruction of or damage to crops, trees, shrubbery, fences, improvements, and the land itself, resulting directly from the activities authorized under this Paragraph, either by restoring or repairing, such damage, or by making a cash settlement with the Owner in lieu thereof”. (Emphasis supplied.)

The underlined phrase, standing alone, might be considered as ambiguous as to whether or not the Government was liable for damages incurred during construction or only damages arising thereafter. However, paragraph 3 of the instrument specifically and separately provides that the Government shall-be liable "for any future loss or damage”. We believe that under this instrument the Government is liable for construction damage. The third paragraph also recites that after the work under Paragraph 2 is completed, the Government or its assignee will acquire a permanent right-of-way easement.

Plaintiffs’ Exhibit 2 is the “Grant of Easement for Cable Line and Appurtenances”. It is dated September 18, 1963, is signed and acknowledged by plaintiffs as owners and recites a consideration of $244.-00. It is just what the name implies — an easement across plaintiffs’ lands where the cable line had already been constructed.

The third instrument marked Defendant’s Exhibit 3, is denominated “Supplemental Agreement”, and also bears the date September 18, 1963. We set out pertinent parts of this document.

“WHEREAS, Paragraphs 1 and 2 of said agreement” (reference to Exhibit 1) “provide that the Government shall be responsible for damages arising from the activity of the Government, its officers, agents, employees, or representatives on said land, and in the exercise of rights under said agreement; and
“WHEREAS, it has been determined that the Government’s activities on said land caused such damages for which the Government is responsible to make a cash settlement thereof to the Owner under the provisions of said Paragraphs 1 and 2; and
“WHEREAS, it has been determined that the monetary amount of this damage is One Hundred Seven Dollars ($107.00), and that such an amount is fair and reasonable, and that payment of this sum in cash to the Owner is in the best interest of the Government,
“NOW, THEREFORE, in consideration of the premises, the parties mutually agree as follows:
“1. That the Government has paid to the Owner the sum of One Hundred Seven Dollars ($107.00), as full payment and consideration for damages caused to date by reason of Government activities on said land, the receipt of which is hereby acknowledged.” (Italics added.)

It is agreed by the parties that defendant company between the dates of March 1, 1963 and July 31, 1963, constructed the missile cable line. We must further remember that plaintiffs alleged their damages were sustained during this period and specifically prior to July 31, 1963. The contract or agreement under which the Government authorized defendant company to build the line is not in evidence. It is evident, however, that whatever authority defendant company had to enter upon plaintiffs’ lands and construct the line came to it from the United States Government. This is not disputed and is in effect conceded. Defendant says this Supplemental Agreement is a release for all damages incurred by plaintiffs in such construction.

For their pleaded Reply to this defense plaintiffs say the release was for tree damage alone, and that if it covered anything else, the release was procured by fraud and misrepresentation on the part of the Government. The trial judge ruled out any oral testimony that the release-was for tree damage alone. Such testimony would vary the terms of this written agreement which on its face seems to be clear and unambiguous in this particular respect. The plaintiffs newer offered any testimony as to any misrepresentations by any Government representative.

Defendant’s motion for directed verdict presented at the close of all the evidence (defendant offered no evidence except the document which we have referred to as Defendant’s Exhibit 3) asserts that “all acts of defendant upon plaintiffs’ lands were done by defendant under authority of the United States Government in the construction and laying of the cable line for the construction and laying of which plaintiffs had granted the United States Government a right of entry, that prior to September 18, 1963, defendant had completed all work upon plaintiffs’ lands, that on September 18, 1963, payment was made to plaintiffs by the United States Government of all of plaintiffs’ claims arising out of the construction work in connection with said cable line and that in consideration of said payment plaintiffs executed a release in full of all claims, and that, as so shown, full payment has been received by plaintiffs for the claims asserted herein”.

On appeal plaintiffs assert that the United States of America is liable in negligence actions only where there is a showing that an employee of the Government committed the negligent act and that defendant was not a Government employee. The doctrine of “Governmental immunity” arising from the ancient basic rule that the “King can do no wrong” is generally and commonly understood. It is not, we think, necessary to cite authority for the existence of that proposition. The Government cannot be sued without its consent. Government would not be liable for any damages in the acquisition and construction of this missile cable line unless Congress in its legislative authorization for such acquisition and construction provided for liability and authorized payment of damages which it doubtless had to do or else be guilty of trying to take private property without just compensation. Since Government so contracted and paid therefor and such authority is unquestioned here, we assume it was legislatively authorized. In the case before us the Government (Exhibit 1) assumed liability for (1) any damages resulting from exploratory activities and (2) specifically contracted that the “Government or its assignee” would be liable for “any destruction of or damage to crops, trees, shrubbery, fences, improvements and the land itself resulting directly from the activities authorized under this Paragraph”. Plaintiffs in their petition claimed damage to their crops, fences and livestock. Damage to crops and fences were items for which the Government assumed liability. It did not specifically assume liability for losses to livestock or for loss of time in “rounding up” livestock. However, the release covered “damage caused to date by reason of Government activities on said land”. This paragraph just referred to was the one which authorized construction of the missile line. We believe the Government had accepted liability and had given consent to be sued in this matter and hence plaintiffs’ authorities that “a release against a defendant who was not liable does not exonerate a defendant who is liable”, are not in point, even if such were the law. See New Amsterdam Casualty Co. v. O’Brien et al., Mo.Sup., 330 S.W.2d 859, 863, and Abbott v. City of Senath, Mo.Sup., 243 S.W. 641, 642, contra. (Quoted later in this opinion.)

The release (Exhibit 3) signed by plaintiffs on September 18, 1963 — more than six weeks after construction of the cable line was completed and more than six weeks after they had incurred their damages under their own allegations — recited that: “The Government shall be responsible for damages arising from the activity of the Government, its officers, agents, employees or representatives on said land” and “it has been determined that the Government’s activities on said land caused such damages for which the Government is responsible”. What activities were there except construction of the cable line by defendant? Then follows a recitation of an agreement that $107.00 is a “fair and reasonable amount” and receipt thereof is acknowledged by plaintiffs “as full payment and consideration for damages caused by reason of Government activities * * ”. Plaintiffs say the $107.00 in damages paid by the Government could only be for “exploratory damages under Paragraph 1 of plaintiffs’ Exhibit 1”. We disagree. Although it was never followed up, plaintiffs in their pleading asserted that the $107.00 was paid for damages to trees. Certainly the trees were not damaged during any exploratory work. The release itself specifically accepts liability under both Paragraphs 1 and 2, and recites the cash settlement is “under the provisions of said Paragraphs 1 and 2”.

We quote from the Supreme Court opinion in Abbott v. City of Senath, 243 S.W. 641, 642:

“It is a just and well-established doctrine that there shall be but one satisfaction accorded for the same wrong. If one be injured by a tortious act, he is entitled to compensation for the injuries suffered, and, if several persons are guilty in common of the tort, the injured one has his right of action for damages against each and all of the joint tort-feasors, and may at his election sue them individually or together. But if he receive full satisfaction from one of them, his right of action against the other is thereby extinguished.
5jC * ⅝ ⅜ ⅜ ⅜
“Plaintiffs’ intestate having made a claim against the Senter Commission Company for injuries received from the falling awning, and having received payment in satisfaction of such claim, she is estopped to now assert that there was in fact no liability on the part of the company, and that it was not a joint tort-feasor”.

In New Amsterdam Casualty Company v. O’Brien et al., Mo.Sup., 330 S.W.2d 859, 863, claimant took a release in full from one alleged tort-feasor and then sought to collect further from another alleged joint tort-feasor. We quote from the opinion:

“Neither may appellant escape whatever legal effect the release may have upon his action now pending against respondents by now asserting that Amsterdam was not a joint tort-feasor with respondents or that there was no evidence that it was. Having received valuable consideration from Amsterdam for a release from liability as an alleged tort-feasor, he will not be permitted to seek further beneficial result to himself by asserting that ‘I pursued the defendant falso clamore, and I took the money by way of a settlement of a pending action in which I never could have recovered’ ”.

The rule was declared by this court in Booker v. Kansas City Gas Company, 231 Mo.App. 214, 96 S.W.2d 919, 923, as follows:

“It is the law that a claimant may settle with one of two or more joint tort-feasors and release that particular joint tort-feasor from further liability, and still hold and sue the others for the balance of his damages. He can have but one satisfaction; but he can accept a part of that satisfaction from one and release him in full, continuing to hold the others for the balance. * * * But if the release is in full of all damages, as distinguished from a release of one co-defendant or joint tort-feasor, then the cause of action is dead and cannot be revived. Abbott v. City of Senath, 243 S.W. 641, loc. cit. 642”.

We believe defendant’s motion for directed verdict should have been sustained because of the effect of the release. In our opinion this is so if (1) the Government is the only one liable because defendant company was only its agent, employee or representative, or (2) even if both the Government and the defendant company were joint tort-feasors and both liable, the release plainly purports to be a release in full for the damages which had occurred prior to September 18, 1963, and specifically includes Paragraph 1, which covers the exploratory work, and Paragraph 2, which covers the construction, and these two paragraphs include all incidents upon which plaintiffs predicate damages, or (3) even if the Government were not liable and only defendant were liable, still plaintiffs released the whole claim and if this is so, plaintiffs are not entitled to recover.

In New Amsterdam Casualty Company v. O’Brien et al., supra, 330 S.W.2d at page 864, our Supreme Court quoted with approval the following from Kahn v. Brunswick-Balke-Collender Co. et al., Mo.App., 156 S.W.2d 40, 42:

“ ‘The principle of law has never been altered that a plaintiff’s right to recover and have satisfaction for his injuries, whether caused by one or many wrongdoers, is single, and if he receives satisfaction for the injuries once, whether in court or out of court, from one wrongdoer, he cannot recover any further amount from another wrongdoer, (citations)’ ”.

The Supreme Court commented further as to the Kahn case and said:

“The writer of the Kahn opinion then went on to hold that the evidence showed plaintiff had made a settlement of her claim in full with one of the joint tort-feasors and was not entitled to proceed further against the other”.

Plaintiffs may have settled their claim too cheaply but we believe it was settled by the release given to the Government and it was reversible error not to sustain defendant’s motion for directed verdict. It is therefore unnecessary to consider the additional assignments.

The judgment is reversed and the cause remanded with directions to enter judgment for defendant.

SPERRY, C., not participating.

PER CURIAM.

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

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Harriet FISHER v. Stephen MAHLER.
    No. 24531.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Wyman Wickersham, Thomas J. Conway, Jr., Kansas City, for appellant, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    Robert S. McKenzie, McKenzie, Williams, Merrick, B earner & Stubbs, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Harriet Fisher, sued Stephen Mahler and Libby Clark, defendants, for damages alleged to have been suffered by plaintiff when the automobije which plaintiff was operating came into collision, on a street in Kansas City, with an automobile owned by Libby Clark and being operated by defendant Mahler. That suit was dismissed as to defendant Clark and, at the same session of circuit coprt, a default judgment in the amount of $5,000.00 was entered in favor of plaint/ff and against Mahler. Mahler, within three years after rendition of the judgment, moved to set same aside on the ground of irregularity. The court sustained the motion and set the judgment aside. Plaintiff refused to try the cause on the merits and appealed from the order and judgment of the court.

This action to set aside the default judgment is founded on the provisions of Section 511.250, V.A.M.S., which limits the time within which a judgment can be set aside for irregularity. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672. The statute is further implemented by Civil Rule 74.32, V.A.M.R.

The judgment complained of is, in fact, an irregular judgment, although it is referred to as a “default” judgment. It was irregularly entered as a default judgment. Mahler was not in default at the time the judgment was rendered. There was then on file an answer to the petition of plaintiff Fisher; but Judge Stubbs, who was sitting when the case was called up for trial and who rendered the default judgment, did not know that such answer was on file but acted on the assumption that it was a default case. He testified as a witness in the instant hearing that he would not have rendered this default judgment against Mahler had he known the true facts, but that he would have caused the giving of notice to Mahler of a setting for trial, which was not done.

The order and judgment entered herein is appealable, as appears from the facts herein. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 137 (Par. 5-8). The court there said that a motion, such as this, must be based on an irregularity which is patent of record (as this one is). The court then said: “An irregularity may be defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner”. The court further said that such irregularities of fact “must be such as would have prevented, if known, the rendition and entry of the judgment challenged, and are to be distinguished from ordinary judicial errors in a judgment reached in accord with established rules of procedure”. As supporting the above statements of law, see Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 675, et seq.; Audsley v. Hale, 303 Mo. 451, 261 S.W. 117, 121.

Mahler, a resident of Flushing, New York, a law school student at New York University, had been vacationing in California. Through a “Drive-Away” service he arranged to drive Libby Clark’s automobile from California to the east coast. Miss Clark, her mother, and her nephew were passengers. While passing through Kansas City, July 8, 1961, this collision occurred. Miss Clark and her mother were hospitalized. Mahler posted bond for appearance in Traffic Court and then proceeded on to New York. He arranged, by mail, for attorney Charles Svoboda, of Kansas City, to represent him on the traffic charge which was, later, dismissed. On July 20, 1961, he received summons and petition in a suit filed by plaintiff in this case, wherein she sought damages against him and Miss Clark, on account of the aforementioned collision. He forwarded the papers to Miss Clark in California, under the mistaken belief that Miss Clark, the owner of the car, had liability insurance that protected both her and Mahler.

On August 4, 1961, attorney Leona Poun-cey of Kansas City, filed an answer for both defendants and a counterclaim for Miss Clark. Svoboda wrote Mahler, August 23d, that he had talked to Mr. Wick-ersham (plaintiff’s attorney in this case), who told him that Mrs. Pouncey had filed answer for both defendants; that, from Svoboda’s knowledge of such matters, this indicated to him that Miss Clark had no insurance. He suggested that Mahler notify his insurance carrier and request representation. Mahler acted upon this advice, but his insurance carrier failed to do as requested, probably because its officers mistakenly believed that it was only secondarily liable. Attorney Pouncey, later, filed a further pleading in the case, on behalf of both defendants. Mr. Wickersham filed a “listing” card indicating that the case would be tried to a jury, not as a default case. It can be said, with reasonable accuracy, that plaintiff’s counsel knew that, at all times herein, Mahler was not in default but that he had an answer on file. Mrs. Pouncey never filed a withdrawal as counsel, or gave any notice to either Mahler or to the court that she did not represent Mahler, in good faith, as his attorney. There was undisputed evidence to the effect that Mahler never had any notice of a setting of the case for trial, or that Mrs. Pouncey was not representing both defendants in this case. He learned of the default judgment more than thirty days after its rendition.

When the case was called for trial, Mrs. Pouncey and Mr. Wickersham were present. Counsel dismissed as to Miss Clark and Mrs. Pouncey announced that she, at no time, ever represented Mahler. Neither she nor Wickersham informed the trial judge that an answer was in the files, filed by Pouncey for Mahler, and the court was unaware of that fact; The case, as to Mahler, was taken up and disposed of as a default case. Evidence was heard on behalf of plaintiff and Mrs. Pouncey who, at that time, represented no party to the cause, cross-examined witnesses. A most unusual procedure! She excuses her conduct on the ground that she wanted to put her client in the best possible position. On December 10, 1963, Mrs. Pouncey wrote Miss Clark’s California attorney suggesting that Miss Clark “does have an action against Stephen Mahler”, and suggesting that it be brought in New York. She also suggested that Miss Clark’s mother and nephew each had such an action against Mrs. Fisher and suggested that the writer could be contacted in Kansas City.

In short, Mrs. Pouncey assumed to act as attorney for Mahler, with his knowledge, but without his direct procurement. She filed an answer, of which he knew. As a result thereof, he employed no counsel of his own. She permitted the case to be called for trial, knowing that Mahler had no notice thereof. She failed to inform the court that, although Mahler was not her client, she, nevertheless, had filed answer for him and that, therefore, Mahler was not in default. She injected herself into the actual trial of the case by cross-examining witnesses, although she represented no interested party. She never notified Mahler of the rendition of a default judgment against him. (Mahler did not learn of it until more than 30 days after its rendition). She encouraged the institution of another lawsuit against him, and she offered her services in connection with other possible litigation growing out of this collision.

This whole record smells of fraud practiced on the court, and of the intentional deception of a young man, whose home was hundreds of miles from this jurisdiction. The default judgment herein was irregularly entered and was properly set aside by the trial judge, in the exercise of his sound discretion in the interest of justice. See J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (K.C.A.) where the facts are somewhat analogous, although the action was not founded on the statute, as in this case.

The judgment appealed from is for the right party, promotes the administration of justice, and is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: LACKLAND H. BLOOM, Special Judge.

text:
    CROW CONTRACTING CORPORATION, a Corporation, and Delbert Hunter, Plaintiffs-Appellants, v. The GEORGE F. SMITH COMPANY, Inc., a Corporation, City of Florissant, a Municipal Corporation, and R. M. Grading Company, a Corporation, Defendants-Respondents.
    No. 32373.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 19, 1966.

      Blumenfeld, Kalishman & Tureen, Charles E. Kopman, St. Louis, for plaintiffs-appellants.
    Joseph H. Mueller, St. Louis, Husch, Ep-penberger, Donohue, Elson & Cornfeld, Myron Gollub, St. Louis, William J. Horm-berg, Clayton, for defendants-respondents.
   LACKLAND H. BLOOM, Special Judge.

Plaintiffs seek to recover damages to a Buckeye trenching machine owned by them and which they sought to sell through defendant The George F. Smith Company, Inc. Plaintiffs’ amended petition is in five counts. Count I seeks damages solely against The George F. Smith Company, Inc., founded on the breach of a contract of bailment. This defendant will herein be referred to as defendant Smith. Count II seeks to recover from defendant Smith and sets forth in effect that defendant Smith leased the trenching machine to the City of Florissant with the consent of plaintiffs; that defendant Smith undertook to deliver the trenching machine to defendant R. M. Grading Company for delivery to the City of Florissant without the knowledge or consent of the plaintiffs and contrary to plaintiffs’ instructions; that the machine was damaged while R. M. Grading Company was transporting it and was returned to plaintiffs in a damaged condition. Count III seeks judgment against defendant R. M. Grading Company for the ■damages to the trenching machine, alleging that after delivery of the machine to ■defendant Smith by plaintiffs for sale that the same was leased by defendant Smith to the City of Florissant with the consent of plaintiffs and delivered by defendant Smith to R. M. Grading Company for the purpose of having the same transported to the City of Florissant, and R. M. Grading Company undertook so to do. That the machine was returned to defendant Smith in a ■damaged condition “said damage having ■occurred after said trenching machine was delivered to defendant R. M. Grading Company * *

Count IV reasserts by reference the pertinent allegations of Count I and Count III and seeks judgment against the City of Florissant, alleging that “ * * * defendant R. M. Grading Company was acting as agent of defendant City of Floris-sant.”

By Count V plaintiffs incorporate by reference pertinent allegations of Count I; restate in effect the material allegations of Counts II, III and IV and allege that while R. M. Grading Company was transporting said trenching machine the same was damaged as a direct and proximate result of the negligence and carelessness of the defendants and seeks judgment against all three defendants.

Defendant Smith filed a cross-claim against R. M. Grading Company and the City of Florissant, and sought recovery from those defendants in the event plaintiffs were successful in their action against it. Defendant Smith in answer to plaintiffs’ amended petition, after admitting the delivery of the trenching machine to it as alleged, set forth as a defense that a bailment was created or a novation occurred between plaintiffs and defendant City of Florissant and/or defendant R. M. Grading Company when the trenching machine came into the possession of the defendant City of Florissant and/or defendant R. M. Grading Company all with the knowledge and consent of plaintiffs and that defendant Smith was thus relieved of liability.

The City of Florissant filed separate cross-claims against R. M. Grading Company and defendant Smith in which it sought judgment over against said defendants if plaintiffs were successful in their action against it.

At the close of plaintiffs’ case the Court sustained a motion of defendant Smith for a directed verdict as to Counts II and V; of the City of Florissant as to Counts IV and V; and as to R. M. Grading Company as to Counts III and V. The Court overruled defendant Smith’s motion for a directed verdict as to Count I. The defendants offered no evidence and motions for directed verdicts were sustained as to their respective cross-claims. The case was submitted to the jury only on Count I of plaintiffs’ amended petition against defendant Smith and the jury returned a verdict in favor of that defendant.

Plaintiffs assert that the Court below erred in giving to the jury Instruction No. 3 offered by defendant Smith; in directing verdicts in favor of the City of Florissant and R. M. Grading Company; in directing a verdict in favor of defendant Smith on Count II of plaintiffs’ petition; and in excluding from evidence certain testimony concerning the delivery of the trenching machine and Plaintiffs’ Exhibit 1, a purported lease between defendant Smith and the City of Florissant. Plaintiffs further complain that a verdict should have been directed in favor of plaintiffs and against defendant Smith on Count I.

As indicated above, the only evidence in the case was that offered by plaintiffs.

Testimony in the case came from R. T. Crow, president of plaintiff Crow Contracting Corporation, Delbert Hunter, one of the plaintiffs, and George L. Smith, president of defendant The George F. Smith Company, Inc. Crow testified that the plaintiffs were the owners of a Buckeye trenching machine which they had used in their business for the installation of underground utilities. In the Fall of 1961 the plaintiffs desired to sell the trenching machine and Crow contacted The Geo. F. Smith Company, Inc., which firm was at that time the local Buckeye dealer. An arrangement was entered into whereby defendant Smith was to endeavor to sell the trenching machine for plaintiffs, at a price which would net the plaintiffs $3500 and the defendant Smith would receive all of the sale proceeds in excess of that amount.

Sometime thereafter Smith called Crow and said that the City of Florissant was interested in purchasing the trenching machine but wanted to test it before entering into a firm contract. Crow and Smith agreed that defendant Smith could lease the trenching machine to the City of Floris-sant under an arrangement whereby, if the machine were purchased there would be no rental charge but if the machine were not purchased then there would be a rental charge and the machine would be returned to the defendant Smith. They discussed the manner in which the trenching machine would be transported from defendant Smith’s place of business to the City of Florissant. Crow testified that Smith asked if plaintiff Crow could deliver the trenching machine to the City of Florissant and that Crow told Smith he did not have a truck available. Crow recommended “Suburban Haulers” as a prospective hauler of the machine. Crow further testified that he never discussed with Smith the hauling of the machine by any hauler other than Suburban Haulers. Crow stated, however, that he had not insisted that Suburban Haulers do the hauling, and if they were unable to do the hauling he would not have instructed defendant Smith “to sit on the machine until he could get Suburban Haulers.” He further testified that he had confidence in George Smith, that whoever George Smith elected to turn it over to for delivery would be permissible, and that he would rely on George Smith’s judgment and experience in turning it over in that he would turn it over to a reputable hauler.

According to Crow the next thing he heard was that the machine had been damaged en route to the City of Florissant and had been returned to defendant Smith’s yard and the sale was off. The machine remained in Smith’s yard until sometime in 1964 when it was picked up in its damaged condition by Delbert Hunter, one of the plaintiffs.

George L. Smith was called as a witness for plaintiff. He identified Plaintiffs’ Exhibit 1 as a document by which his company acted in delivering possession of the trenching machine. There was some evidence by Smith that he saw the machine on the truck when it returned to the lot and that it was “reported” that it came back on the same truck that it left our yard and that the truck was owned by R. M. Grading Company, one of the defendants. Smith testified that Exhibit 1 was the original copy of lease and dray ticket and that everything that leaves their place on rental goes on a similar form, made at the time the property leaves, and the form goes in the file as part of their ordinary business records.

Smith further testified that if the City of Florissant did not elect to purchase the machine it presumably would come back to their lot.

All three witnesses, Crow, Hunter and Smith, testified with respect to the value of the machine both before and after the damage to it.

Witnesses Crow and Hunter testified that the fair market value of the trenching machine prior to the accident was $4500 while Smith placed the value between $4,000 and $4,500. Crow testified that the fair market value after the accident was $1,500 to $1,800, maybe as much as $2,000. Hunter testified that the fair market value after the accident was between $1,500 and $2,000 and Smith that the value after the accident was $2,500.

The agreement between plaintiffs and defendant Smith created a contract of bailment for their mutual benefit. Unless otherwise relieved of its obligation, it was the duty of defendant Smith as bailee to use ordinary care in the handling of the property and to dispose of it in full compliance with plaintiffs’ instructions or to return it to plaintiffs in the same condition as it was when received excepting normal wear and tear. Nuell v. Forty-North Corporation, Mo.App., 358 S.W.2d 70, 75; Oliver Cadillac Co. v. Rosenberg, Mo.App., 179 S.W.2d 476, 480. By Count I of their petition plaintiffs plead against defendant Smith’s breach of a simple contract of bailment without pleading specific or general negligence on the part of said defendant. This placed the burden of proof upon the defendant to explain the failure to redeliver to plaintiff the property in an undamaged condition. Nuell v. Forty-North Corporation, supra, 358 S.W.2d 1. c. 75. As pointed out in the Nuell case, “ * * * a bailee for the mutual benefit of both parties is not an insurer, and he may exculpate his failure to return the property to the bailor by showing that its loss or damage was not due to his failure to exercise ordinary dili- ■ gence, * * *. ” Defendant Smith undertook to affirmatively plead in exculpation in effect that after the bailment between plaintiff and defendant Smith, the plaintiffs agreed to the transfer of the possession of the machine to the City of Florissant and/or the defendant R. M. Grading Company which had the effect of creating a new bailment or a novation between the plaintiffs and said defendants and thus relieved the defendant Smith of any liability to plaintiffs. Delivery to a third person by the direction of the bailor is said to constitute an excuse which would relieve the bailee of liability for a non-delivery or loss. 8 C.J.S. Bailments § 37, p. 462.

It is clear that the plaintiffs agreed with defendant Smith that the trenching machine could be delivered to the City of Florissant on a test basis. There is considerable doubt as to what arrangement, if any, was agreed to with respect to how the machine should be transported from defendant Smith’s lot to the City of Florissant. Crow made it plain that plaintiffs could not transport it and recommended Suburban Haulers. He testified, however, that he did not insist on Suburban and would rely on Smith’s judgment. George Smith on the other hand stated that they made no arrangements for the hauling and so advised the City of Florissant. Instruction No. 2 was given on behalf of plaintiff and in substance instructed the jury to return a verdict for the plaintiffs upon finding that plaintiffs were the owners of the trenching machine, that they delivered the trenching machine to defendant Smith, for sale, and that defendant Smith failed to return the machine to plaintiffs in an undamaged condition. Defendant Smith undertook to submit its affirmative defense by Instruction No. 3 which is as follows:

“ ‘Your verdict must be for the defendant George F. Smith Company, Inc. if you believe:
“ ‘First, plaintiffs agreed to the delivery of the possession of the trenching machine to a prospective purchaser;
“ ‘Second, defendant George F. Smith Company, Inc., advised plaintiffs that it would make no arrangements for the delivery of said trenching machine to the prospective purchaser, and did not undertake to do so;
“ ‘Third, that at the time said trenching machine was damaged, it was no longer in the possession or under the control of defendant George F. Smith Company, Inc.;
“ ‘Fourth, that defendant’s conduct as aforesaid was in accordance with the agreement between plaintiffs and defendant George F. Smith Company, Inc. ’ ”

Plaintiffs have alleged that the trial court erred in giving to the jury Instruction No. 3 for numerous reasons. We agree with the plaintiffs that Instruction No. 3 is unnecessarily confusing and ambiguous. Whether it is sufficiently so to warrant a reversal of the judgment we need not determine, inasmuch as we have reached the conclusion that the instruction fails to properly submit to the jury the affirmative defense pleaded by defendant, supported by independent evidence, which would exculpate defendant from its liability as bailee. Under this instruction the jury would be authorized to find in favor of the defendant Smith if they found that at the time the trenching machine was damaged “ ‘ * * * it was no longer in the possession or under the control of defendant George F. Smith Company, Inc.’ ” The only basis upon which the defendant Smith could be relieved of liability under the pleadings was either by (1) delivering it directly to the City of Florissant, a prospective purchaser, or (2) to an interim hauler authorized by plaintiffs. We do not believe that the “second” or “third” findings required by Instruction 3 submit any pleaded defense which would relieve defendant Smith of its liability as bailee. We find no clear evidence that George Smith advised plaintiffs that Smith would make no arrangements for the delivery of the machine, which would support a finding as required by the instruction. The evidence was that Smith so advised someone employed by the City of Florissant. Furthermore, if defendant Smith failed to properly deliver the machine to the City of Florissant or a hauler authorized by plaintiffs, defendant Smith would not be relieved of liability for its damage merely because it gave up possession of the machine. The rule is that, “If the bailor has given instructions as to the disposition of the bailed property expressly or by clear implication, even a gratuitous bailee makes himself responsible for any loss or injury if he departs therefrom. * * * ” 8 Am. Jur.2d, Bailments, § 189, p. 1074. A bailee makes delivery to a third person without the consent of the bailor at his peril. Murray v. Farmers’ & Merchants’ Bank, Mo.App., 206 S.W. 577. We accordingly believe that Instruction No. 3 was preju-dicially erroneous.

Plaintiffs next urge that the court erred in not directing a verdict in their favor and against defendant Smith on Count I of their petition. In addition to the jury issue raised by the testimony of Crow and Smith with regard to whether or not defendant Smith in making the delivery of the machine as shown by the evidence was acting in compliance with the authorization of Crow, we note that Crow, Hunter and Smith each testified to different valuations of the machine after the accident sufficient to leave the issue of damages to the jury. The credibility of the witnesses is for the jury even where the only testimony adduced is given on behalf of plaintiff. Accordingly, plaintiffs were not entitled to a directed verdict on Count I. Motors Ins. Corp. v. Union Market Garage, Mo.App., 207 S.W. 2d 836, 839.

Plaintiffs contend further that the court erred in directing a verdict in favor of defendant Smith under Count II in that there was sufficient evidence from which the jury could have found that defendant Smith was not authorized to deliver the bailed property to anyone other than Suburban Haulers or another reputable hauler. We have heretofore indicated that it was the duty of defendant Smith under the pleadings and the evidence to return the machine either to plaintiffs or to the City of Florissant or an interim hauler authorized by plaintiffs. We believe the evidence was sufficient to make a submissible case for the jury as to whether or not defendant Smith fulfilled its duty to plaintiffs. However, it appears that by virtue of defendant Smith’s affirmative defense as to Count I, this issue was raised and tried under that count of plaintiffs’ petition. Based on the pleadings and evidence adduced, we find little practical distinction between the two counts. On a retrial, however, under the same evidence, in view of what we have heretofore said, the issues would be more accurately framed under Count II. This is especially true in view of the fact that plaintiffs by their own evidence established more than a simple bailment and went further to show a consent for the rental and delivery of the machine to the City of Florissant.

Plaintiffs charge that the court erred in directing a verdict in favor of the defendants R. M. Grading Company and the City of Florissant. They do not indicate whether they are complaining of the action of the court with respect to Count III against the defendant R. M. Grading Company and Count IV against the City of Florissant both based on bailment theories, or Count V against both defendants based upon a theory of negligence.

We shall consider first the counts against defendant R. M. Grading Company. That defendant has not favored us with a brief or oral argument on this appeal. Plaintiffs rest their contention that the court erred in directing a verdict in favor of said defendant solely on the testimony of witness Smith, that the trenching machine came back to his lot in a damaged condition on the same truck which had picked it up and that the truck was owned by R. M. Grading Company. Smith was not present when the machine was loaded; he made no arrangement for its delivery to R. M. Grading Company; and there was no other evidence which would establish any contractual relation between said defendant and plaintiffs sufficient to constitute R. M. Grading Company a bailee and no evidence that the machine was in the exclusive possession of the said defendant at the time it was damaged which would give rise to any presumptions that the machine was damaged by reason of its negligence. Bommer v. Stedelin, Mo.App., 237 S.W.2d 225, 229; Hartford Mining Co. v. Tabor, Mo.App., 21 S.W.2d 207, 208. The testimony with respect to ownership of the truck, standing alone, is not sufficient to authorize a submission of either Count III or Count V of plaintiffs’ petition against the defendant R. M. Grading Company. The court properly sustained said defendant’s motion for a directed verdict with respect to said counts.

We now consider whether or not plaintiffs made a submissible case against the City of Florissant on either Count IV breach of a contract of bailment, or Count V, general negligence. It is the contention of the City of Florissant that liability cannot be imposed upon it in this action on a bailment theory for the reason that such an action is founded on contract and no evidence was offered to show that the bailment contract or lease allegedly entered into between defendant Smith and the City of Florissant for rental of the machine was authorized with the formality required by § 432.070, RSMo 1959, V.A.M.S. That section requires, among other things, that no contractual obligation shall be incurred by any Missouri city unless “ * * * such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.” Compliance with this section has been held mandatory in numerous cases and we agree with the City of Florissant that there is no evidence in this case which would show compliance with the requirements of the statute so as to impose any contractual liability on the City of Florissant either as a bailee or under the lease. Needles v. Kansas City, Mo., 371 S.W.2d 300; Bride v. City of Slater, Mo., 263 S.W.2d 22; Fulton v. City of Lockwood, Mo., 269 S.W.2d 1. Accordingly, we hold that the City of Florissant could not be held liable under Count IV of plaintiffs’ petition on the theory of breach of a contract of bailment.

Did plaintiff make a submissible case against the City of Florissant on the general charge of negligence as set forth in Count V of their amended petition? There was no evidence which would show any negligence on the part of the City of Florissant. Accordingly, unless plaintiffs were entitled to a presumption of negligence by reason of the bailment contract itself, a submissible case was not made. Plaintiffs contend that the court erred in sustaining objections when they undertook to elicit from witness George Smith conversations with employees of the City of Florissant which would establish that the trenching machine was in the exclusive possession of the City of Florissant at the time it was damaged. They also complain that the court erred in excluding their Exhibit 1, being the alleged lease between defendant Smith and the City of Florissant for like reason. We do not believe such evidence would enable plaintiffs to make a submissible case on Count V. To do so under the evidence plaintiffs would be required to rely upon a presumption of negligence arising out of the bailment contract which they cannot do, as heretofore indicated, because of the fact that the bailment contract is itself void by reason of Section 432.070, RSMo 1959, V.A.M.S. Thus it has been stated that “Whether the action is ex contractu or ex delicto, where the right to recovery rests upon the existence of the bailment relationship, and the fact of bailment is in issue, the burden of establishing such fact upon the whole case by an adequate degree of proof rests on the plaintiff and includes the burden of proving the making of the valid contract of bailment between the parties, the delivery to the bailee thereunder, and acceptance by the bailee.” (Emphasis added.) 8 Am. Jur.2d, Bailments, § 306, p. 1191. Thus it was necessary that plaintiffs establish a valid bailor-bailee relationship between themselves and the City of Florissant in order to prevail. This they did not do. The trial court, therefore, properly directed a verdict in favor of the City of Florissant on Count V.

Accordingly, because of the prejudicial error in the giving to the jury of Instruction No. 3 on behalf of the defendant Smith, the judgment is reversed and remanded for a new trial as to defendant Smith as to Count I or II of plaintiffs’ amended petition and affirmed in all other respects.

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


author: STONE, Presiding Judge.

text:
    M_L_, Plaintiff-Appellant, v. M_R_, Defendant-Respondent. M_L_, Plaintiff-Respondent, v. M_R_, Defendant-Appellant.
    Nos. 8551, 8560.
    Springfield Court of Appeals. Missouri.
    Oct. 3, 1966.

      Sam F. Hamra, Jr., Springfield, for plaintiff.
    Moore, Pettit & Keeter, Aurora, for defendant.
   STONE, Presiding Judge.

These consolidated cross-appeals by plaintiff M— L— (hereinafter referred to as the mother) and by defendant M— R--- (hereinafter referred to as the father) bring to us for review an order of the circuit court modifying upon the mother’s motion (but not to the extent sought) the custodial provisions of a decree entered on January 31, 1964, which reflected the mother’s voluntary dismissal of her petition for divorce, granted a divorce to the father upon his cross-complaint, and awarded him custody of the only child, an adopted boy K— then two years of age, subject only to the mother’s right of reasonable visitation.

In her motion to modify filed on May 17, 1965, the mother averred, inter alia, that on October 16, 1964, she had married one G — , an over-the-road bus driver; that she and G— were buying “a three-bedroom home with a fenced backyard” in a metropolitan area in another state; and that, if given the custody of the boy, she would devote her full time to his care and would rear him “in a proper and adequate environment.”

Since the morals of the respective parents are an appropriate subject of consideration in this child custody case [L— v. N — , Mo.App., 326 S.W.2d 751, 755(8); Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 74(4)], the court quite properly received, at the hearing on December 16, 1965, considerable testimony pertaining to the mother’s alleged misconduct with G— beginning on the night of April 17, 1963, when the father and mother separated, and continuing intermittently through October 1, 1963, when G_and his second wife were divorced, and January 31, 1964, when the father was granted a divorce from the mother on his cross-complaint, to the marriage of the mother and G— on October 16, 1964. S— v. G — , Mo.App., 298 S.W.2d 67, 75-76. In view of the present agreement of the parents as to the proper disposition of these appeals (of which more anon), we need not record here such admissions of misconduct as the mother and G— made at the hearing or descend into unsavory factual details and odious inferences. Suffice it to say that it is altogether understandable why the court, in the original decree of January 31, 1964, awarded full custody of the boy to the father, subject only to the mother’s right of reasonable visitation.

It is a trite principle that a custodial order once made becomes as conclusive as any other order [Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126; Brake v. Brake, Mo.App., 244 S.W.2d 786, 801; Lehr v. Lehr, Mo.App., 264 S.W.2d 35, 37] and may be disturbed only upon proof of changed conditions subsequent to-entry of the order coupled with a showing that modification of the order would promote the best interests of the child or children involved. P— D— v. C— S — , Mo.App., 394 S.W.2d 437, 439(1); Hirsch v. Hirsch, Mo.App., 366 S.W.2d 484, 489 (3-5); Frame v. Black, Mo.App., 259 S.W.2d 104, 108(4). But counsel for the mother vigorously emphasized in the trial court (and upon submission here) that the mother’s prior transgressions of the moral law did not necessarily require that she be denied custody of the boy upon her subsequent motion to modify [Johns v. McNabb, Mo., 247 S.W.2d 640, 643; Yount v. Yount, Mo.App., 366 S.W.2d 744, 748(7); Knepper v. Knepper, 139 Mo.App. 493, 122 S.W. 1117] and ably presented evidence designed to support his insistence that both the mother and G— (now her husband) had repented of their former transgressions. Ex parte Ferone, Mo.App., 267 S.W.2d 695, 698, 700. Contrast Graves v. Wooden, Mo.App., 291 S.W.2d 665, 669(5). And in the order of modification entered on December 24, 1965, the trial court found “that there has been a substantial change of condition since the divorce was granted on January 31, 1964, in that, among other things, plaintiff [mother] has remarried and has an established and good Christian home; plaintiff and her husband [G — ] are compatible; they are congenial with the [boy] and desire to and can furnish a good home in which K— can be with them; and it is for K’s best interests and welfare that the original decree be modified, as provided herein, because of such change of condition.”

Accordingly, the court modified the custodial provisions of the original decree (which had awarded the father full custody of the boy subject only to the mother’s right of reasonable visitation) by leaving major custody with the father but granting to the mother minor custody for (a) a forty-five day period each summer, (b) “one week-end beginning S :00 P.M. Friday until 5:00 P.M. Sunday ... in each even-numbered calendar month” and “one week-end beginning 5:00 P.M. on Wednesday until 9:00 A.M. Sunday ... in each odd-numbered calendar month” insofar as such week-end custody would not interfere with the boy’s attendance at school, and (c) a ten-day Christmas vacation period (including Christmas Day) and the “Easter school vacation” in even-numbered years. The order of December 24, 1965, also included several additional provisions calculated to minimize friction and disagreement between the parents incident to the frequent transfers of custody, e. g., requirements (a) that the mother give to the father written notice by registered mail not less than seven days prior to the beginning date of each period of permissive custody selected by her, (b) that the mother or one of her parents personally pick up the boy and redeliver him, and (c) that all expense incident thereto be borne by the mother. Within the period of thirty days during which the trial court retained control over the order of December 24, 1965, to “vacate, reopen, correct, amend or modify [it] for good cause” [V.A.M.R. Rule 75.01], to wit, on January 20 and again on January 21, 1966, the court amended the order of December 24, 1965, in minor and here unimportant particulars.

Relying upon the hereinbefore-quoted findings of the trial court and the oft-repeated statement that, all things being equal, the custody of a child of tender years belongs with the mother [see cases collected in 11 West’s Missouri Digest under Divorce, @=3298 (6), and in 22A West’s Missouri Digest under Parent and Child, <®=32(3.2)], counsel for the mother initially pressed us, both by brief and by oral argument, to direct the trial court to grant full custody of the boy to the mother subject only to the father’s right of reasonable visitation. But as we recently observed “all things never are exactly equal” [Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 199]; and a profusion of cases convincingly demonstrates that the courts are not reluctant to entrust children into their father’s care and custody, where the best interests of the children will be served thereby. Copenhaver v. Copenhaver, Mo.App., 402 S.W.2d 612, 615 (4, 5); Wood v. Wood, Mo.App., 400 S.W.2d 431; Jaros v. Jaros, Mo.App., 395 S.W.2d 217, 220(5) ; Jennings v. Jennings, Mo.App., 379 S.W.2d 159, 162-163; Derringer v. Derringer, Mo.App., 377 S.W.2d 513; Crowley v. Crowley, Mo.App., 360 S.W.2d 293, 297(7, 8); C— v. B--, Mo.App., 358 S.W.2d 454, 459; Thomas v. Thomas, Mo.App., 357 S.W.2d 208; Harwell v. Harwell, Mo.App., 355 S.W.2d 137, 143; Davis v. Davis, Mo.App., 354 S.W.2d 526, 528(3); Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 224; L-- v. N--, supra, 326 S.W.2d at 755(6), and cases cited in note 8. The only rigid, inflexible and unyielding principle in custody cases is that the welfare of the child is paramount and supreme [see cases collected in 11 Missouri Digest under Divorce, @=’298.1, in 22A Missouri Digest under Parent and Child, @=2 (3.1), and in 15A Missouri Digest under Infants, @=’19.2(2)], and perplexing problems of custody must be resolved not by applying academic rules or by mouthing pious platitudes but rather by determining, insofar .as is humanly possible, what will best serve and promote the child’s welfare. P— D— v. C— S — , supra, 394 S.W.2d at 446; C— v. B — , supra, 358 S.W.2d at 459.

The father, now thirty-five years of age and single, and the boy live with the father’s widowed mother in her comfortable home in a wholesome Ozark community having a population of approximately 1,250 persons. The paternal grandmother, now sixty years of age, is in excellent health and does not work outside the home. The father and his unmarried sister, a registered pharmacist, own and operate a drug store, from which the father derives a modest but adequate income. He usually goes home for lunch and does not work evenings or Sundays. His minister confirmed the regular attendance of both father and son at church services, and there is not a scintilla of evidence in any wise reflecting upon the father’s reputation and character. In short, the father “is doing a good job [in rearing the son] and there is no evidence to the contrary.” Ballew v. Ballew, Mo.App., 288 S.W.2d 24, 26; Ragan v. Ragan, Mo.App., 315 S.W.2d 142, 147. The boy, now five years old, is verging on an age at which the guidance, direction, supervision, companionship and love of an understanding father will be most needed and beneficial. Davis v. Davis, supra, 354 S.W.2d at 531; Green v. Perr, Mo.App., 238 S.W.2d 924, 927; Wood v. Wood, supra, 400 S.W.2d at 437 (9). See Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863; Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 314; Baer v. Baer, Mo.App., 51 S.W.2d 873, 879.

Of course, we recognize that, where neither parent is unfit, the best interests of a minor child usually are served by some arrangement which will permit his association with both parents [Kimble v. Kimble, Mo.App., 399 S.W.2d 630, 635; Patterson v. Patterson, Mo.App., 375 S.W.2d 614, 621(5); Dupree v. Dupree, Mo.App., 357 S.W.2d 241, 243(3); Lewis v. Lewis, supra, 301 S.W.2d at 863(5); Fago v. Fago, Mo.App., 250 S.W.2d 837, 842; Lambert v. Lambert, Mo.App., 222 S.W.2d 544, 548(6)], and the decree of the capable and conscientious trial judge obviously was prepared with that in mind. Mindful of the salutary principle that the findings of the trial court are not to be lightly regarded or easily disturbed but that we should defer thereto unless firmly convinced that the child’s welfare requires some other disposition, we accept the here-inbefore quoted findings in the order of December 24, 1965, as indicating the mother’s fitness to associate with the boy at that time. However, we are moved to the parenthetical comment that, in view of the sorry connubial record of both the mother and G— (her present husband) and their relatively recent moral misconduct, it would be crowding time to expect any court to completely disregard the past, to be comfortably assured that their professed repentance is soul-centered and their moral reformation is permanent, and to confidently conclude not only that their present home is now an altogether stable and proper one for children but also that it will continue to be. The passage of time alone can resolve those doubts and uncertainties. S--- v. G---, supra, 298 S.W.2d at 77; In re J---, Mo.App., 357 S.W.2d 197, 200; Irvin v. Irvin, Mo.App., 357 S.W.2d 254, 256. In the meantime, we are no more disposed than was the trial judge to deny the mother reasonable opportunities for association with the boy.

However, as we frankly commented to counsel at the time of oral argument and submission in this court, we have been concerned as to whether the boy’s best interests would be furthered by such elaborate and involved provisions as were embodied in the order of December 24, 1965, with respect to frequent “week-end” periods of varying lengths in the mother’s custody. For, we are of the same mind as others who, in agonizing over similar problems, have voiced the opinion that the best interests of a child, from the standpoint of engendering in him a feeling of security and stability, are not served by frequent shifts in custody from one home to another. Wood v. Wood, supra, 400 S.W.2d at 437(8); Kimble v. Kimble, supra, 399 S.W.2d at 634(7).

Subsequent to the date of oral argument and submission, opposing counsel had further discussions concerning the mother’s periods of temporary custody and, on September 27, 1966, the parties filed in this court their joint motion requesting us to enter an order (a) setting aside the order of December 24, 1965, and the amending orders of January 20 and 21, 1966, and (b) directing che circuit court to enter an order modifying the custodial provisions of the original decree of January 31, 1964, in accordance with the voluntary agreement of the parties embodied in their joint motion. Generally speaking, that voluntary agreement is in keeping with our views as to a proper and appropriate arrangement enabling the boy to associate with both parents; and, upon careful consideration of the voluntary agreement with an eye single to the best interests of the boy, we are constrained to approve it and to grant the prayer of the joint motion. In this connection, we commend counsel for both parties for their constructive approach to the problem at hand, their willingness and desire to re-examine the entire situation with a view to furthering the best interests of the boy as well as their respective clients, and their ability to reach a meeting of the minds on so controversial a matter.

It is the order and judgment of this court (a) that the joint motion of the parties be sustained; (b) that the order of modification entered in the Circuit Court of Greene County, Missouri, on December 24, 1965, and the amending orders of January 20 and 21, 1966, should be and hereby are set aside and for naught held; (c) that this cause should be and hereby is remanded to said circuit court with directions (1) to re-enter the first paragraph of the order of December 24, 1965, which includes the court’s findings, and (2) upon those findings to enter the following order and decree of modification (in accordance with the voluntary agreement of the parties embodied in their joint motion), to wit:

“(a) That the Circuit Court of Greene County, Missouri, shall continue to have jurisdiction with respect to the care, custody and control of the minor for all purposes.
“(b) That defendant shall continue to have the care, custody and control of the minor at all times, except as otherwise expressly provided herein.
“(c) That plaintiff shall have the care, custody and control of the minor for and during the following periods, to wit, (1) in 1967 and in alternate years thereafter (i. e., in each odd-numbered calendar year), beginning at 9:00 A.M. on June 15 and ending at 5:00 P.M. on August 28, (2) in 1968 and in alternate years thereafter (i. e., in each even-numbered calendar year), for the period beginning at 9:00 A.M. on June 1 and ending at 5 :00 P.M. on August 28, and (3) in 1967 and in alternate years thereafter (i. e., in each odd-numbered calendar year), beginning at 9:00 A.M. on the second day of the Christmas vacation period in the school system in which the minor is then enrolled and ending at 5:00 P.M. on the next to last day of such Christmas vacation period in said school system.
“(d) That plaintiff or one of her parents must personally pick up the minor and redeliver him to defendant; that defendant need not deliver the minor to anyone other than plaintiff or one of her parents; and that plaintiff shall bear all expense incident to picking up the minor, transporting him elsewhere, and redelivering him to defendant.
“(e) That plaintiff shall continue to have the right of reasonable visitation with the minor at all reasonable times during such periods as defendant has the care, custody and control of the minor.
“(f) That defendant shall have the right of reasonable visitation with the minor at all reasonable times during such periods as plaintiff has the care, custody and control of the minor.
“(g) That, if the minor is hospitalized, the parent then having custody of the minor shall give immediate notice of such hospitalization to the other parent, together with appropriate details such as the place of hospitalization, the name of the attending physician or surgeon, and the cause of hospitalization (insofar as that may be known).
“(h) That the court costs in the Circuit Court of Greene County, Missouri, shall be taxed against and paid by plaintiff and defendant, share and share alike.” and (d) that all court costs in connection with the appeals docketed in this court as Nos. 8551 and 8560 should be and hereby are taxed against and payable by plaintiff and defendant, share and share alike.

HOGAN and TITUS, JJ., concur.