author: STONE, Presiding Judge.

text:
    Michael O. DAY, by his next friend, Roland Day, Plaintiff-Respondent, v. Gail MAYBERRY, a minor, by her guardian ad litem, Imogene Mayberry, Defendant-Appellant.
    No. 8629.
    Springfield Court of Appeals. Missouri.
    Sept. 13, 1967.
    Motion for Rehearing or to Transfer Denied Oct. 16, 1967.
    Application to Transfer Denied Dec. 11, 1967.

      Buerkle & Lowes, Jackson, for defendant-appellant.
    Dalton, Treasure & Bullard, Kennett, for plaintiff-respondent.
   STONE, Presiding Judge.

For injuries alleged to have resulted from a bizarre accident in Kennett, Missouri, about 9:30 P.M. on June 1, 1965, plaintiff Michael O. Day, then 16 years of age, instituted this action in which he sought damages of $10,000 from defendant Gail Mayberry, then also 16 years of age. Following entry of judgment upon a unanimous jury verdict for defendant, plaintiff’s timely motion for new trial was sustained on the sole ground that the verdict was against the weight of the evidence. V.A. M.R. Rule 78.01. On this appeal by defendant, her contentions are (a) that “a submissible case was not presented because the plaintiff was an undiscovered trespasser on the defendant’s auto to whom no duty was owed” and (b) that, “if it be deemed the plaintiff was either a discovered trespasser or a licensee or an invitee,” he “was guilty of contributory negligence as a matter of law” or “assumed the risk as a matter of law.” (All emphasis herein is ours.)

Some preliminary references to relevant legal principles may be helpful. As instant plaintiff emphasizes, a trial court is vested with broad inherent discretion to grant one new trial on the ground that the verdict is against the weight of the evidence. Frager v. Glick, Mo., 347 S.W.2d 385, 387(1); State ex rel. State Highway Com’n. v. Belvidere Development Co., Mo., 315 S.W.2d 781, 784(7). But that discretion is to be exercised judicially, not arbitrarily [Evans v. Landolt, Mo., 389 S.W.2d 15, 16(1); Madsen v. Lawrence, Mo., 366 S.W.2d 413, 416(5)]; and repeated pronouncements have made it clear that the test as to whether there has been an arbitrary exercise of such inherent discretion is whether there was substantial evidence to have supported a verdict for the party to whom the new trial was granted. State ex rel. State Highway Com’n. v. Vaught, Mo., 400 S.W.2d 153, 155; Robinson v. Wampler, Mo., 389 S.W.2d 757, 759(2,3); Dawson v. Scherff, Mo., 281 S.W.2d 825, 831; Williams v. Cass, Mo.App., 372 S.W.2d 156, 158(3), and cases cited in note 3.

Since plaintiff abandoned all other pleaded grounds of negligence by submitting his case on the assignments that “defendant placed the vehicle in motion at a high rate of speed” and “defendant drove at an excessive speed” [Guthrie v. City of St. Charles, 347 Mo. 1175, 1182, 152 S.W.2d 91, 93(1); Brooks v. Stewart, Mo., 335 S.W.2d 104, 105, 81 A.L.R.2d 508; Haire v. Stagner, Mo.App., 356 S.W.2d 305, 308(2)], our inquiry with respect to the sufficiency of the evidence should be confined to the two submitted assignments. Burnett v. St. Louis Public Service Co., Mo., 337 S.W.2d 921, 923(4); Herr v. Ruprecht, Mo., 331 S.W.2d 642, 647(2); Weathers v. Falstaff Brewing Corp., Mo.App., 403 S.W.2d 663, 666(5); Graham v. Conner, Mo.App., 412 S.W.2d 193, 197-198(2), and cases cited in note 3. In that inquiry and also in considering the additional issues • raised by defendant as to whether or not plaintiff was contributorily negligent or assumed the risk of injury as a matter of law, we must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiff. Chailland v. Smiley, Mo. (banc), 363 S.W.2d 619, 623(1), 5 A.L.R.3d 288; Allman v. Yoder, Mo., 325 S.W.2d 472, 474(3); Catanzaro v. McKay, Mo., 277 S.W.2d 566, 567-568(1). Our factual review accords due deference to that basic principle of appellate review.

At the conclusion of a youth rally at a Kennett church about 9 P.M., defendant Gail Mayberry loaded three teenage companions, namely, David Haire, David Cooper and Pat Dickie, into her father’s 1955 DeSoto tudor hardtop, which she was driving with his permission, and took them for a ride about town. Haire, who did not testify and whose exact age was not shown, rode in the front seat with defendant. The other couple rode in the rear seat. The Cooper youth was then 15, the Dickie girl 16. Somewhere along the route of their travel, defendant and her companions sighted and picked up a pedestrian, Don Oakley, then 17, who sat on the right side of the front seat. A few minutes later, as the DeSoto “was traveling through the high school field,” some- boys “yelled at it”; and defendant responded by turning around and stopping, headed north, at the east curb near the driveway into the house situate at 306 North Walter Street. Five boys, two of whom were 15 years of age, two 16, and one 18, were in the yard at that address. “They yelled and came running out, and David Haire [in the DeSoto] hollered, ‘Hey, Mike,’ and he [plaintiff] came running up there, all those boys did ..” Marion Meredith, then 18, “jumped on the front of the car” and either sat “on the front right fender and part of the hood” or, as defendant’s passenger-witness Pat Dickie stated, “was on the hood of the car facing the window [windshield], up on his knees, with his hands up on the top of the car.” Plaintiff, then 16, climbed onto the trunk lid of the DeSoto and, in the words of defendant’s passenger-witness David Cooper, “set with his feet up under him, sort of in a squat, with his back to the back glass [rear window].” No one in the DeSoto said or did anything to invite either plaintiff or Marion Meredith to jump or climb onto the automobile, and there was no occasion for either youth to do so.

Concerning what occurred during the “few seconds” or “few minutes” or “small amount of time” the DeSoto remained stationary, we are informed only (a) by witness Ryan Goodman, one of the youths in the yard who did not jump onto the automobile, that “first they talked and they had got on the car” and (b) by witness Meredith that, after he and plaintiff had climbed onto the DeSoto, “I believe Mike [plaintiff] was the one that was talking to them, because I think he knew them, I’m not sure.” Then David Haire, sitting beside defendant, told her to “floor it” and immediately thereafter, without warning of any nature, defendant “took off.” As to where she had intended to go, defendant replied “I don’t know, I was just going riding ... I didn’t have any place in mind ... I didn’t have any reason.” With respect to Meredith’s position on the hood, defendant said “I guess it was okay, he looked safe to me” and conceded that she had no objection to his riding there. Averring that she had not looked in her rear vision mirror before starting and denying any knowledge of plaintiff’s position on the trunk lid, defendant responded to the inquiry whether it was “all right with you for Day [plaintiff] to be on the car” in this fashion, “if I would have known he was up there it might have been.”

Plaintiffs evidence was to the effect that defendant “took off pretty fast” or “rather fast,” “accelerated rather quickly” — “as fast as it [the DeSoto] would go,” and had attained a speed estimated by two of plaintiff’s witnesses at 35 to 40 miles per hour, by another at 35 miles per hour, and by a fourth at 30 miles per hour, all of which speeds were in excess of the speed limit of 25 miles per hour on Walter Street, before plaintiff “swinging his arms” and “trying to hold his balance on the back of the car” fell off the DeSoto, rolled on the concrete pavement, struck his head, and came to rest unconscious. . Defendant’s showing was to the effect that she “just started rolling off” and “took off normal”— “it wasn’t fast at all,” and that the DeSoto had attained a speed estimated by two of her witnesses at 10 to 15 miles per hour and by defendant herself as having been “at least 15 miles an hour,” before plaintiff “scooted down on the back of the car” and jumped off. The point at which plaintiff fell or jumped off the DeSoto was about even with the driveway into the house situate at 310 North Walter on the second lot north of the house in front of which he had climbed onto the trunk lid. Those lots were “75 feet, something like that, 50 feet” in width.

Of the submissibility of plaintiffs case. Defendant’s primary point that plaintiff did not present a submissible case of actionable negligence on the part of defendant is predicated on the premise that plaintiff was an undiscovered trespasser on the DeSoto to whom no duty was owed. On the undisputed testimony, plaintiff was indeed a trespasser, i. e., one who enters onto another’s property, whether it be realty or personalty of such nature as to be subject to trespass, without any right, lawful authority, or express or implied invitation or license [65 C.J.S. Negligence § 63(3)a, p. 659; Twine v. Norris Grain Co., 241 Mo.App. 7, 15, 226 S.W.2d 415, 420(3)]; but we are unable to say, as a matter of law, that he was an undiscovered trespasser. True, defendant testified upon trial that she first learned that plaintiff had been on the rear of the DeSoto “when someone hollered inside the car that he had jumped.” However, we recall the above-noted testimony (a) of defendant herself that, when the DeSoto stopped in front of 306 Walter, her seatmate David Haire “hollered, ‘Hey, Mike,’ and he [plaintiff] came running up there,” (b) of witness Goodman that, while the DeSoto remained stationary, “first they talked and they had got on the car,” (c) of witness Meredith that “I believe Mike [plaintiff] was the one that was talking to them . . .” after he and plaintiff had scrambled onto the DeSoto, and (d) of witness Cooper that plaintiff climbed onto the trunk lid and sat “sort of in a squat, with his back to the back glass.” Proof that a defendant saw the trespasser or had actual knowledge of his presence may be made circumstantially, even over a direct denial. 2 Harper and James, Torts, § 27.6, l. c. 1465.

Furthermore, in the course of cross-examination as to what defendant had told her, Pat Dickie, characterized as defendant’s “good friend,” not only (a) acknowledged that defendant had stated the accident was her fault and “I shouldn’t have took off with him on there,” which, as defendant’s counsel emphasize, standing alone would not necessarily have constituted an admission of preaccident knowledge of plaintiff’s position on the DeSoto, but also (b) gave the following testimony: “Q. But you told me [plaintiff’s counsel] when we talked to you at school that after Gail [defendant] got the car started she knew that Mike [plaintiff] was on the back, didn’t you? A. Yes, sir, she did.” Received without objection or motion to strike, the probative worth' and effect of this testimony were for the jury. See particularly Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 302(9); Steeley v. Kurn, 348 Mo. 1142, 1144, 157 S.W.2d 212, 213(4). Consult Doyle v. St. Louis Merchants’ Bridge Term. Ry. Co., 326 Mo. 425, 432, 31 S.W.2d 1010, 1012(4), certiorari denied, St. Louis Merchants’ Bridge Terminal Ry. Co. v. Doyle, 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1435; In the Interest of J.L.L., Mo.App., 402 S.W.2d 629, 633-634(1); Fellows v. Farmer, Mo.App., 379 S.W.2d 842, 846(2).

Viewing the record as a whole in the light most favorable to plaintiff and according to him the benefit of all supporting inferences fairly deducible from the evidence, we are constrained to conclude that the triers of the facts reasonably could have inferred and found that defendant knew of plaintiff’s position on the trunk lid prior to, and in time to have averted, his injury, in which event plaintiff’s status would have been that of a discovered trespasser and defendant’s duty to him as such would have been to use ordinary care under the circumstances not to cause him injury by any affirmative act on her part. McVicar v. W. R. Arthur & Co., Mo., 312 S.W.2d 805, 812-813(7), 65 A.L.R.2d 785; Stevens v. Missouri Pacific R. Co., Mo., 355 S.W.2d 122, 128-129(12); 65 C.J.S. Negligence § 63(16), p. 672; Id. § 63(7), l. c. 666; 38 Am.Jur. Negligence § 111, p. 775; 2 Harper & James, Torts, § 27.6, l. c. 1464; 2 Prosser, Torts (2nd Ed.), § 76, l. c. 436. Certainly, defendant’s operation of the DeSoto was active or affirmative in nature. White v. Burkeybile, Mo., 386 S.W.2d 418, 423. Since defendant’s assertion that plaintiff did not present a submissible case rests solely on the premise that, as a matter of law, the latter’s status was that of an undiscovered trespasser, our conclusion that the triers of the facts reasonably could have inferred and found that he was a discovered trespasser is dispositive of this point. Plaintiff did present a sub-missible case of actionable negligence on the part of defendant. In this connection, see Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157, and Stipetich v. Security Stove & Mfg. Co., Mo.App., 218 S.W. 964.

Inasmuch as this case will be for retrial, we add the caveat that our holding of submissibility should not be misinterpreted as approval of the manner of submission in plaintiff’s verdict-directing instructions 3 and 4 patterned after MAI No. 17.01 and requiring no finding on the sharply-contested issue concerning plaintiffs status. As pointed out in the foreword on “How To Use This Book” [MAI p. XXXI] : “The jury is impaneled to decide disputed issues of fact. The failure to instruct on every issue has been error, and it continues to be error .... A lawyer needs to know what facts must be proved to authorize a recovery, and then make sure that the verdict directing instruction hypothesizes each such element.” E. g., the “Notes on Use” of MAI No. 22.05 caution that “[t]his instruction assumes that the landlord-tenant relationship is not in issue,” and the “Committee’s Comment” under MAI No. 17.01 directs that “[w]here agency is in issue, see 18.01.” In the case at bar, defendant was charged with the duty to use ordinary care under the circumstances not to injure plaintiff by any affirmative act on her part only if plaintiff’s status was that of a discovered trespasser. That was an essential prerequisite to, and element of, any recovery by plaintiff; and, being in open dispute with different inferences permissible under the evidence, that issue should have been submitted in any verdict directing instruction by requiring a simple finding to the effect that defendant had actual knowledge [see 2 Harper & James, Torts, § 27.6,l. c. 1465] of plaintiff’s position on the rear of the vehicle prior to, and in time to have averted, his injury.

Of contributory negligence. In support of her contention that plaintiff was guilty of contributory negligence as a matter of law, defendant cites three cases, to wit, (1) Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573, in which an adult intentionally riding at night on the running board of an automobile after having rejected an invitation to sit inside was con-tributorily negligent as a matter of law, (2) Hosford v. Clark, Mo.App., 359 S.W.2d 424, in which the negligence of a girl 14 in intentionally riding at night on the right front fender of an automobile was for the jury, and (3) McManus v. Rogers, D.C. D.C., 173 F.Supp. 118, 125(10), reversed and remanded on other grounds 106 U.S.App.D.C. 369, 273 F.2d 104, in which “a very intelligent boy of seventeen at the time of the accident [who] testified that he knew then that it was very dangerous to ride on the back of an automobile” was “negligent as a matter of law” in intentionally riding there. In each of those cases, plaintiff intentionally rode on the outside of an automobile. In the case at bar, plaintiff intentionally climbed onto the trunk lid of a stationary automobile at the curb, but there was no evidence, and the record by no means compels the inference, that he did so either intending to ride there or anticipating that, while he was in that position, defendant would “floor it” and “take off” without notice or warning to him. See Ward v. Penn Mutual Life Ins. Co., Mo.App., 352 S.W.2d 413, 421.

Plaintiff readily admitted that he knew it was dangerous to ride on the outside of a moving automobile, but there was no inquiry or testimony concerning sitting on a stationary vehicle. True, under the circumstances then existing, plaintiff’s position on the trunk lid of the DeSoto was pregnant with perilous possibilities. However, as he sat on the stationary vehicle, obviously “something would have to happen other than that which was then happening before injury would befall plaintiff” [McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 503, 251 S.W.2d 704, 706], and the “something” that did happen was defendants affirmative action in “flooring it” and “taking off” without notice or warning.

Of course, a mature adult might well have recognized and appreciated the perilous possibilities inherent in plaintiff’s position on the trunk lid under the circumstances then existing. But plaintiff was a youth 16 years of age who had just finished his sophomore year in high school, and the hereinbefore-related course of conduct of the teenagers both inside and outside the DeSoto “was a convincing manifestation as well as a natural product of juvenile immaturity, not of adult maturity.” Bridges v. Arkansas-Missouri Power Co., Mo.App., 410 S.W.2d 106, 111.

The authorities leave no room for doubt hut that, in resolving the issue as to plaintiff’s contributory negligence, w£ should measure his conduct by the time-honored rule that the care and caution required of a minor, who is of sufficient age to be chargeable with contributory negligence, is that ordinarily exercised by others of the same age, experience and capacity under the same or similar circumstances. Warren v. Kansas City, Mo., 258 S.W.2d 681, 683(3); Hosford v. Clark, supra, 359 S.W.2d at 427(3), and cases collected in note 3. Furthermore, in actions by minor plaintiffs, it becomes appropriate and necessary to bear in mind that: “Knowledge and appreciation of the danger and risk of injury, actual or imputed, is essential in order that a child may be guilty of contributory negligence. Mere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.” Turner v. City of Moberly, 224 Mo.App. 683, 685, 26 S.W.2d 997, 998; Wilson v. White, Mo.App., 272 S.W.2d 1, 6-7(12); Bridges v. Arkansas-Missouri Power Co., supra, 410 S.W.2d at 111(5); United States v. Stoppelmann, 8 Cir., 266 F.2d 13, 19. In holding to this course, courts but recognize that which is common knowledge, i. e., that thoughtless conduct, impulsive action and immature judgment are concomitants of youth, and that, although “[a] boy may have all the knowledge of an adult respecting the dangers which will attend a particular act . . at the same time he may not have the prudence, thoughtfulness, and discretion to avoid them which are possessed by the ordinarily prudent adult person.” Burger v. Missouri Pac. R. Co., 112 Mo. 238, 249, 20 S.W. 439, 441; Holmes v. Missouri Pac. Ry. Co., 190 Mo. 98, 107, 88 S.W. 623, 625; Hosford v. Clark, supra, Mo.App., 359 S.W.2d at 428.

Since “[t]here is no fixed rule of law by which to gauge, or scale by which to nicely weigh, the acts of a minor to determine if he is guilty of contributory negligence” [Jackson v. Butler, 249 Mo. 342, 369, 155 S.W. 1071, 1079] and since, in each instance, not only the age of the minor but also “the peculiar circumstances of the particular case, the knowledge and experience of the child in reference to those circumstances, and his capacity to appreciate the danger” must be taken into consideration [Moeller v. United Rys. Co., 242 Mo. 721, 729, 147 S.W. 1009, 1012(6)], whether a minor plaintiff has been guilty of contributory negligence, i. e., whether he both knew and appreciated the danger and the risk of injury, is usually for the triers of the facts. For that matter, judicial declaration that any plaintiff has been contribu-torily negligent as a matter of law is permissible and proper only where it may be said upon the whole evidence and all inferences deducible therefrom, when viewed in the light most favorable to him, that the only reasonable conclusion is that he was guilty of negligence proximately causing his injury. Combellick v. Rooks, Mo. (banc), 401 S.W.2d 460, 462(1); Bennett v. Kitchin, Mo., 400 S.W.2d 97, 101; Dye v. Geier, Mo., 345 S.W.2d 83, 87(3); Cupp v. Montgomery, Mo.App., 408 S.W.2d 353, 359(4); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 138(9). Believing that, in the circumstances of the case at bar, reasonable minds might well disagree as to whether plaintiff comprehended the potential danger and appreciated the possible risk of injury inherent in his conduct, we are constrained to conclude that the issue of contributory negligence was for the jury. White v. Burkeybile, supra, 386 S.W.2d at 424; Losh v. Ozark Border Elec. Coop., Mo., 330 S.W.2d 847, 851(4); Eilers v. Union Electric Co., Mo.App., 386 S.W.2d 427, 432(10); Hosford v. Clark, supra.

Of assumption of risk. Under this point, instant defendant quotes the statement that “[generally, there are three essential elements of the defense of assumption of risk which must be established by defendant in order to render the defense available: (1) The existence of a risk to plaintiff; (2) knowledge of the risk by plaintiff, and his appreciation of the danger-, and (3) plaintiff’s voluntary assumption of this risk or his exposure to it.” 1 Blashfield Automobile Law and Practice (3rd Ed.) § 64.2, p. 538. For the purposes of this opinion, it will suffice for us to accept the quoted statement without compounding “the confusion surrounding the doctrine of assumption of risk, or of ‘incurred risk,’ by attempting to wade through the various distinctions and definitions or by considering whether or not (except perhaps for risks expressly assumed) there is any further need in the law of Missouri for [this] doctrine.” Bullock v. Benjamin Moore & Co., Mo.App., 392 S.W.2d 10, 13. Furthermore, it is not decisive here that, as defendant’s counsel emphasize, “[assumption of risk does not always go out of the case where the issue is one of negligence and contributory negligence” and that the doctrine is not “invariably limited to cases arising out of a contractual relationship or master and servant cases [but] may extend to other cases in which the defense is based upon the principle expressed by the maxim volenti non fit injuria” [Terry v. Boss Hotels, Inc., Mo., 376 S.W.2d 239, 247 (16, 17)] i. e., meaning that to which a person assents is not esteemed in law an injury. Arnold v. May Department Stores Co., 337 Mo. 727, 737, 85 S.W.2d 748, 754 ; 38 Am. Jur. Negligence § 171, p. 845 ; 92 C.J.S. 1027.

The controlling consideration here is that, as all of the authorities agree, knowledge of the risk or danger and an appreciation thereof are essential elements of assumption of risk. Terry v. Boss Hotels, Inc., supra, 376 S.W.2d at 248(18); Fletcher v. Kemp, Mo., 327 S.W.2d 178, 183(6), 186(15); Bullock v. Benjamin Moore & Co., supra, 392 S.W.2d at 13(1); Hathaway v. Evans, Mo.App., 235 S.W.2d 407, 411(6); 65A C.J.S. Negligence § 174(3), p. 294; 38 Am.Jur. Negligence § 173, p. 847; Restatement, Second, Torts § 496D, p. 574; annotation 82 A.L.R.2d 1218, §§ 5-9. And “[i]f by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk . . . . ” Restatement, Second, Torts § 496D, comment c, l. c. 575. To the same effect, see Prosser on Torts (2nd Ed.), § 55, l. c. 309; 1 Blashfield Automobile Law and Practice (3rd Ed.), § 64.3, p. 539. What we have heretofore said in our discussion of the issue of contributory negligence concerning instant plaintiff’s comprehension of the potential danger and appreciation of the possible risk of injury inherent in his conduct, is equally relevant here. We are unable to conclude that, when plaintiff climbed onto the trunk lid of the stationary DeSoto, he assumed, as a matter of law, the risk of injury subsequently resulting from defendant’s affirmative act in “flooring it” and “taking off” without notice or warning to him. Defendant’s cited case of Frailey v. Kurn, 349 Mo. 434, 161 S.W.2d 424, 426(3), where plaintiff, who had boarded a moving freight train for the purpose of riding it and had sustained severe personal injuries when he admittedly jumped therefrom, was said to have “assumed the risks arising from the usual and ordinary operation of the train,” finds no application on the facts of the instant record.

The order granting a new trial is affirmed and the cause is remanded.

HOGAN and TITUS, JJ., concur.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Lenora B. MELTON, Administratrix of the Estate of Leonel Elmo Melton, Deceased, Plaintiff-Respondent, v. Oba ENSLEY, Defendant-Appellant, and Joplin Federal Savings & Loan Association, a corporation, and Security National Bank of Joplin, Missouri, Defendants.
    No. 8681.
    Springfield Court of Appeals, Missouri.
    Oct. 10, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 2, 1967.
    Application to Transfer Denied Dec. 11, 1967.

      Warten, Wells & Burden, Henry Warten, Joplin, for defendant-appellant.
    Dean S. Johnston, Joplin, for defendant-appellant.
    Roberts & Fleischaker, Loyd Roberts, Joplin, for defendant, Joplin Federal Savings & Loan Assn.
    Charles Tudor, Joplin, for defendant, Security National Bank of Joplin, Missouri.
   TITUS, Judge.

L. Elmo Melton died July 20, 1966, and his sister, Lenora B. Melton, as administratrix of the estate, instituted this declaratory judgment suit in the Circuit Court of Jasper County seeking to have the estate declared owner of a checking account, two certificates of deposit and two savings accounts. Each certificate and account was payable to decedent and Oba T. Ensley in the particular fashion we shall see anon. For brevity we frequently hereafter refer to Mr. Melton and Mrs. Ensley as Elmo and Oba. Answering the petition, Oba asseverated she and Elmo were joint owners with incident of survivorship of each account and certificate and that she became the sole owner of each upon his death. Defendants Joplin Federal Savings and Loan Association and Security National Bank, both of Joplin, Missouri, disavowed individual interest in the accounts and certificates and answered willingness to pay their obligations as determined by the court. One savings account in dispute was with the Miami Savings and Loan Association, Miami, Oklahoma, which did not appear and was not subject to the jurisdiction of the Missouri court. Following trial without jury aid, the circuit court adjudged the estate to be the owner of the certificates and accounts, and ordered each institution, including the Oklahoma association, to pay its account or certificate to the estate. When her after-trial motions were denied, Oba appealed. The aggregate value of the certificates and accounts is the amount in dispute on appeal. This is less than $15,000 and we have appellate jurisdiction. V.A.M. S.Const. art. V, §§ 3 and 13; V.A.M.S. § 477.040. In this instance we review the case on both the law and the evidence and reach our own judgment without regard to the rulings or reasoning of the trial court. V.A.M.R. 73.01(d); V.A.M.S. § 510.310, subd. 4; Edwards v. Durham, Mo., 346 S.W.2d 90, 100(7); Masterson v. Plummer, Mo.App., 343 S.W.2d 352, 354(1); Giraldin Bros. Real Estate Company v. Stiansen, Mo.App., 315 S.W.2d 636, 640(1).

Elmo was fifty-three years of age when he died and had remained unmarried following a 1947 divorce. His twenty year old adopted son, parents and two sisters reside in Joplin. In 1947 Elmo was a partner in the Wagoner Mattress Factory located near the Royal Drug Store in Joplin. Exactly when we do not know, Elmo became estranged from his parents and sisters, sold his interest in the factory to his sister, Lenora, and moved to near Neosho, Missouri, some sixteen or eighteen miles south of Joplin. He there established another mattress factory and lived alone in the building that also served as his place of business. The son resided with the grandparents. Lenora and Elmo had not been on speaking terms for six years prior to his death. While Elmo conversed with his parents, it generally was by telephone regarding untoward conduct of his son. If the matter required personal attention, Elmo went to his parents’ home but “stayed outside” the house during these meetings. There was no ill feeling between Elmo and his son. Excluding the disputed accounts and certificates, the inventory filed with the probate court showed Elmo at the time of his death, to be possessed of personal property valued at $17,426.45 and real estate appraised at $6,000, all of which would descend absolutely to his son. V.A.M.S. § 474.010(2) (a).

When Oba’s marriage terminated by divorce in 1949, she was employed as a saleslady by the Royal Drug Store and is still so engaged. Oba, who was from July to December older than Elmo, resides in Joplin with her mother and father, respectively seventy-five and seventy-six years of age at time of trial. The Meltons became acquainted with Oba when they frequented the drug store as customers and about 1955 or 1956 Elmo and Oba started “dating” occasionally. The “dates” increased in frequency as time passed and for several years before Elmo died their association had become almost a daily occurrence. At one time the couple discussed becoming engaged to marry, “but we had both been divorced and so we decided to stay friends.” Oba was a member and regularly attended church twice on Sundays and each Wednesday night. Elmo accompanied Oba to church, “enjoyed it very much,” and became a member in 1958 or 1959. For sometime before his death, Elmo was teacher of a “teenage” Sunday school class. In late 1964 and early 1965 while being treated for pneumonia, Elmo was advised concerning a heart condition of which he never complained. He was instructed to lose weight and “watch his cholesterol count * * * For the last two years most of the time” Elmo ate meals at Oba’s home prepared by her mother “because * * * he couldn’t go out and eat and get the food that the doctor told him to eat.” Elmo gave Oba gifts, but none in cash, and at one time was the principal contributor, along with Oba, in the purchase of a dishwasher for Oba’s mother.

Elmo and his father, with Elmo paying the assessments, belonged to the “Masonic Widow’s Fund” until 1958 when Elmo asked both he and his father be suspended. In August 1964 Elmo requested reinstatement for himself but not for his father. The secretary of the fund testified that in the process of reinstating Elmo, “I asked him who he would have as his beneficiary and he said ‘Mrs. Oba Ensley’ * * * and he said ‘No relation, just a friend’ * * * and he stood there for a little bit and he says T don’t want them to have anything I have.’ ”

Any incompetency of Oba to testify in this cause because of “the deadman’s statute,” V.A.M.S. § 491.010, was waived when the plaintiff administratrix took her deposition. Edwards v. Durham, supra, 346 S.W.2d at 97; Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 880(7).

TRANSACTIONS AT THE SECURITY NATIONAL BANK

A twelve-month time certificate of deposit in the sum of $1,000 was issued November 16, 1964, by the bank payable to “L. Elmo Melton or Oba T. Ensley.” The certificate, bearing four per cent interest, was automatically renewable. Elmo gave Oba the money for the certificate and asked her to take it to the bank. Oba delivered the funds to a bank employee, Sally Harrington, who prepared the certificate in the manner she had been instructed in a telephone conversation with Elmo. Sally answered “yes, sir” to the inquiry if she had been “instructed to issue the same as a joint account in those names with right of survivorship.” Fifty-one dollars accrued interest on the certificate was subsequently paid to Elmo in cash. The certificate was exchanged for a $1,000 certificate bearing 5½ per cent interest dated June 24, 1966, and made payable to “L. Elmo Melton or Oba T. Ensley.”

A savings account in the name of “L. Elmo Melton or Oba T. Ensley” was opened at the bank May 4, 1965, and closed by a $1,023.49 withdrawal authorization dated February 14, 1966, signed by Elmo. The vice-president and cashier of the bank, James R. Sanders, said this withdrawal “was applied to a C.D. [certificate of deposit] with additional money.” The certificate, dated February 16, 1966, was in the sum of $2,074.79 and payable to “L. Elmo Melton or Oba T. Ensley.” (Dehors the record, we note the amount of the certificate equals the sum withdrawn from the savings account, the $51 interest paid Elmo on the first certificate, and $1,000.) Mr. Sanders testified Elmo “specifically asked that we make it out in his name or Mrs. Ensley,” and the form used by the bank when requested to establish joint tenancies with right of survivorship in certificates of deposits, in savings accounts and checking accounts was “just with the word ‘or’ placed between the names.” Prior to the times in question, the cashier related, “some of our girls” were putting “and/or between the signature and we did tell them to cut out the ‘and’ and the ‘slash bar’ and just put the word ‘or’ in, which gives the same meaning * * * ”

Both of the certificates in force when Elmo died had been given tó Oba by Elmo with the explanation they were “a joint account” and were in her possession at all times. Elmo had instructed the cashier at the bank “that any mail or any matter that would be mailed out, go to Mrs. Ensley on the C.D.’s.” After Elmo’s death, the certificates were cancelled and replaced by two others in the respective amounts of $1,000 and $2,121.17 payable to “Oba T. Ensley or Donald C. Ensley,” the latter being a son of Oba. Mrs. Ensley recounted she was assured by bank officials that in having the certificates issued “in the form shown, ‘Oba T. Ensley or Donald C. Ensley’ [she was] establishing and having issued * * a time certificate of deposit in joint tenancy with right of survivorship.”

The bank checking account was established May S, 1965, in the names of “L. Elmo Melton or Oba T. Ensley,” and had a $329.50 balance on the day Elmo died. Oba testified: “Elmo asked me to go down and open the account and he gave me the money to open it with. It was to be set up as a house fund account” so Elmo’s tenants could deposit the rent payment in it. “It was easier” for the tenants to pay the rent into the account than to deliver it personally to Elmo. The rental property was located in Joplin and Elmo made the house mortgage payments from the account. When the account was opened Oba was given some checks and a customer identification card bearing the bank’s number, the account number, and the names “L. Elmo Melton or Oba T. Ensley.” Oba said, “I didn’t want any of those [checks. The identification card] was enough for me to carry and I carried it in my purse.”

No deposit contract or agreement was signed by Elmo or Oba relative to any account or certificate at the bank. The signature cards they did sign bore Elmo’s address and social security number.

SAVINGS ACCOUNT AT JOPLIN FEDERAL SAVINGS AND LOAN ASSOCIATION

The savings account consisted of a $4,COO deposit made June 1, 1965, a $1,000 deposit added June 10, 1965, and accumulated dividends which rendered the balance at $5,239.64 on June 30, 1966. Elmo appeared alone at the association’s offices to initiate the account and the assistant secretary, Robert Moyer, handled the transaction and prepared the “Savings Account Book” and the “Joint Savings Account Signature Card.” The association, Moyer testified, had “in the neighborhood” of eight types of application forms and contracts for savings accounts. “If a person comes in and asks to have two names included on an account” the joint savings account card was “not necessarily” used because it would depend upon the “withdrawal rights” desired by the depositor. Oba’s name was put on the account at Elmo’s direction and Moyer further said it was the practice to explain to new customers “the meaning and intendment” of the contract relating to a joint account and that he made such an explanation to Mr. Melton. Elmo secured Oba’s signature to the card and contract and returned it to Joplin Federal Savings and Loan Association. The signature card, described by Moyer as being “the actual contract,” was dated June 1, 1965, and prepared in the names of:

“(1) Melton, L. Elmo
(2) Ensley, Oba T.”

and, in part, provided: “The undersigned hereby apply for a savings account * * * in the joint names of the undersigned as joint tenants, with the right of survivor-ship, and not as tenants in common * * * it being understood and agreed that anyone of the undersigned who shall first act shall have power to act in all matters related to the membership and any account in said association held by the undersigned, whether the other person or persons named in the account be living or not.” The savings account book was prepared in the names of “L. Elmo Melton or Oba T. En-sley,” followed with the words, “Joint owners, payable to the order of either of said joint owners, or the survivor in case of death of either of said joint owners.” Elmo’s address appeared on thé contract and savings ledger. His social security number was also noted on the ledger.

SAVINGS ACCOUNT AT MIAMI SAVINGS AND LOAN ASSOCIATION

The signature card and contract signed by Elmo and Oba was dated August 19, 1965, and prepared in the names of:

“A. Melton, L. Elmo
or
and
B. Ensley, Oba T.

as joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety.” The contract, inter alia, included the provision: “It is agreed by the signatory parties with each other and by the parties with [the association] that any funds placed in or added to the account by any one of the parties are and shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account.” (Emphasis is as it appears in the contract).

Elmo inaugurated this account by going alone to Miami. He obtained Oba’s signature to the contract and returned it to the association. The account, as of June 30, 1966, including dividends, showed a balance of $3,105.84.

Corroborated by her mother, Oba testified that shortly after each of the two savings accounts were established with the Joplin association and the Miami association, Elmo brought the savings account books to her home, “gave them to me and [said he] wanted me to have these.” Oba retained possession of the two books “until shortly before Elmo passed away.” The church to which Oba and Elmo belonged was contemplating a building program to be financed by loans from the congregation. Elmo and Oba discussed making such a loan and Elmo took the books with him one day “to figure out a loan for the church.” The loan was not completed before Elmo died and the next Oba saw of the books was at Elmo’s home on the date of his death. To the contrary, Elmo’s mother asserted she and her husband had gone to visit Elmo shortly before he died and at that time Elmo had given her a sealed “business type envelope” and said “just to keep it, was all.” Elmo did not say what was in the envelope and his mother was unaware of its contents until following Elmo’s death. The envelope, Elmo’s mother stated, contained the two savings account books and a copy of the by-laws of the Eastern Star, of which she was a member.

Admittedly Elmo’s parents, sisters and son were wholly unaware of the existence of the disputed accounts and certificates until after he expired. The funds represented by the accounts and certificates were furnished by Elmo and he alone made income tax reports on the interest and dividends paid or accumulated thereon. Oba had not written any checks on the checking account and neither she nor Elmo had made any withdrawals or changes in the other accounts or certificates except as above noted.

There is no claim or proof of the existence of any fraud, duress, mistake, mental incapacity, undue influence or a confidential relationship. Consequently we are not concerned with the effect any one or more of such elements would have upon a contract or a gift effected in establishing a joint deposit or account. We need neither ponder what effect any such element would have upon the presumptions we recognize and note, infra. Therefore, our concern here rests primarily with (1) deposits made within the purview of the joint deposit statutes, (2) joint accounts created by the execution of joint tenancy deposit contracts, and (3) deposits made neither within the words and purview of the statutes nor accompanied by a joint tenancy contract.

Missouri joint deposit statutes are found in V.A.M.S. §§ 362.470 (banks), 363.740 (trust companies), and 369.150 (savings and loan associations). In substance these statutes provide a deposit (together with all interest thereon and any additional deposits by either party) made in the name of the depositor and another and in form to be paid to either or the survivor, shall become the property of such persons as joint tenants and may be paid to either during the lifetime of both, or to the surviv- or after the death of one of them. Deposits made and accounts created within the purview of these statutes presumptively become the property of the persons named as joint tenants and, absent competent evidence to the contrary, actually fix the ownership of the funds in the persons named as joint tenants with the attendant right of survivor-ship. Whether the tenants’ names be connected with “and” or “or” or “and/or” appears not to matter if the deposits have, in fact, been made within the statute’s purview. The presumption is rebuttable and may be overcome by competent parol or other evidence showing a different intent.

If establishment of the joint account be accompanied and commemorated by an integrated, unambiguous joint tenancy deposit contract of the parties, such an agreement (sans elements rendering the contract void or voidable) constitutes the single and final memorial of the intention of the parties which may not be varied or changed by parol evidence. The parol evidence rule is one of substantive law and not a rule of evidence. Ergo, parol evidence cannot alter a valid contract or establish another in its stead even though injected into the cause without objection. The joint tenancy deposit contract rule was first recognized in this state by Commerce Trust Company v. Watts, supra, 231 S.W.2d 817. It has been written that Jenkins v. Meyer, supra, 380 S.W.2d 315, casts doubt on Watts, but with equal vehemency it is penned this just isn’t so. Jenkins did not involve a deposit contract and did not cite nor overrule Watts. We find Watts cited in a score of Supreme Court and appellate court opinions without criticism. The Supreme Court, having given birth to Watts, is the only court with authority to chastise it if, indeed, the need should ever arise. V.A.M. S.Const. art. V, § 2; Bruno v. Murdock, Mo.App., 406 S.W.2d 294, 297(2). Unaware of any reason for affording a valid deposit contract less dignity and respect than that given other solemn agreements, we dutifully accept Watts as part of the vital case law of this state and acknowledge inability to observe incompatibility between Watts and Jenkins.

Financial institutions and depositors frequently and indiscriminately append “joint account” to accounts held by tenants' in common, joint tenants with right of survivorship, tenants by the entirety, and to accounts on which an agent has authority to draw. Leuzinger v. Merrill, Lynch, Pierce, Fenner and Smith, supra, 396 S.W.2d at 579; Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 360. Much of the depositing public and personnel responsible for enrolling accounts erroneously believe legal magic accompanies the use of “and” or “or” or “and/or” in joining two names on a deposit and each is endowed with a different misconception that the use of one word or the other or a combination of both, with nothing additional, will create a joint tenancy with the attendant right of survivorship. Few are cognizant of the cases treating “and” and “or” with the strictness of a grammarian or lexicographer. Many are ignorant of tribunal trounc-ings give the phrase “arid/or,” and many would stand agape to learn all distinction is disregarded in other opinions. Where the deposit is neither made within the words or purview of the joint deposit statutes nor accompanied by a joint tenancy deposit agreement, no presumption of joint tenancy with the attendant right of sur-vivorship arises and the burden is cast upon the survivor to show by a preponderance of the evidence the deposit was made with the intention of creating a joint tenancy. It is the intention of' the depositor which controls, and where there is no deposit contract or presumption of joint tenancy, the simple use of “and” or “or” or “and/or” to join names to an account does not, per se, indicate an intention to create a joint tenancy with the incident of sur-vivorship. Where the instrument is silent or ambiguous as to the nature of the interest created it will not, as a rule, be construed to create a joint tenancy. Nevertheless, the controlling element is the intention of the parties and not the mere form in which the deposit is made. The interpretation afforded “and” or “or” or “and/or” standing alone, depends upon the particular circumstances under which they are used and should be construed to express the true intention of the parties.

The contract Elmo and Oba executed to establish the Joplin Federal Savings and Loan Association savings account denominated them “as joint tenants, with the right of survivorship, and not as tenants in common.” There is no contention this instrument was not “the actual contract,” that it was ambiguous, or that any circumstance existed to vitiate the agreement. Application of the authorities cited in notes 2 and 3, supra, requires a ruling the contract constituted the single and final memorial of the intention of the parties which may not be varied or changed by parol evidence. As no qualifications or exceptions are urged, we feel this conclusion wholly consistent with the additional rules that all persons are presumed to know the law and the legal meaning of terms employed in establishing legal relations (31A C.J.S. Evidence § 132[1]; 29 Am.Jur.2d, Evidence § 222, p. 272-275) and a person signing a contract is conclusively presumed to know its contents and cannot be heard to say its provisions are contrary to his intentions or understanding. Burch v. Schmelig, Mo.App., 300 S.W.2d 838, 843(1); 17 C.J.S. Contracts § 137b, pp. 875-876.

But even were we to consider the signature card as lacking in the requisites of an integrated, unambiguous joint tenancy deposit contract of the parties, the savings account (as evidenced by both the contract and the savings account book) was in form to comply with and within the purview of V.A.M.S. § 369.150, thereby giving rise to the statutory presumption which, standing alone, was evidence of an intent to presently create a joint tenancy with the attendant right of survivorship. Jenkins v. Meyer, supra, 380 S.W.2d at 323. We detect no evidence which rebuts the presumption. It is true Elmo’s mother (contrary to Oba’s testimony) claimed that a considerable time after the savings accounts were established she received from Elmo a sealed envelope with the admonition “just to keep it, was all.” Ignorant of its contents and the existence of any account Elmo had with Oba, it was not until after Elmo died his mother learned the envelope contained the two savings account books. Perchance this testimony was thought to be evidence of Elmo’s change of attitude toward his parents and the accounts, but “[i]f, in a case such as this, it becomes necessary to go beyond the written evidence of such grant or contract creating the account to establish the intention of the grantor, the inquiry should be confined to the time the contract was entered into, without reference to subsequent events or circumstances, since it is only the intention of the grantor at the time of the creation of such account that is material.” Simonich v. Wilt, supra, 417 P.2d at 145(7). The testimony of Elmo’s mother, even if accepted, does not rebut the presumption as to the intentions of Elmo at the time the account was established. Whether we apply the so-called joint tenancy deposit contract rule or rely upon the presumption arising because the savings account was within the purview of the statute, we necessarily conclude the trial court erred in not declaring Oba to be the owner of the account and by not ordering the Joplin Federal Savings and Loan Association to pay the account to her.

What we have said regarding the savings account with Joplin Federal Savings and Loan Association, applies with equal force apropos the Miami Savings and Loan Association savings account, provided the Missouri law is applicable. It seems generally agreed, however, the determination of the title to and the rights in a deposit standing in the name of the depositor and another is governed by the law of the state where the deposit has been made and the account has been kept. 10 Am.Jur. 2d, Banks § 376, pp. 339-340. The pleadings strongly suggested Oklahoma law might properly be applied to the issues on the Miami account (V.A.M.R. 55.23 [b]), but the trial court and the parties disdained all effort to resolve the problem or to broach or belabor the question by brief. Fortunately we need not rule this point in conflict of laws for we believe Oba to be the owner of the Miami savings account irrespective of whether the law of Missouri or that of Oklahoma is applied.

60 Okl.St.Ann. § 74 provides “A joint interest is one owned by several persons in either real or personal property in equal shares, being- a joint title created by a single instrument * * * when expressly declared in the instrument * * * to be a joint tenancy, * * * such joint tenancy * * * may be created by transfer to persons as joint tenants * * * from an owner * * * to himself and one or more persons * * * ” The term “joint tenancy” had a well-defined meaning at common law which included the attendant right of survivorship and this statute used the term in its “technical common law sense.” Draughon v. Wright, Adm’x, 200 Okl. 198, 191 P.2d 921, 923(1). 6 Okl.St.Ann. § 901 (banks) and 18 Okl.St.Ann. § 212b (savings and loan associations) are similar to our §§ 362.470 and 369.150, supra. The last cited Oklahoma' statute permits savings and loan associations to “issue shares or membership certificates in the joint names of two or more persons or their survivor, in which event any of such persons who shall first act, shall have power to act in all matters * * * whether the other person or persons named * * be living or not. * * * ” The Miami Savings and Loan Association savings account contract signed by Oba and Elmo expressly described them as “joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety.” The agreement, with its own emphasis, displayed an understanding that the funds placed in or added to the account by any of the parties “are and shall he conclusively intended to he a gift and delivery at that time of such funds to the other party * * * to the extent of his * * * pro rata interest in the account.” It is difficult to conceive how an intention to make a present gift and establish a joint tenancy could be more clearly and cogently stated. “Where donor and donee by a writing signed by them as shown by the record contains words expressing a clear and unequivocal intent on the part of the donor to make donee a joint owner and containing a survivorship clause; upon donor’s death the donee is entitled to the accounts and proceeds thereof * * * ” Flesher v. Flesher, Okl., 258 P.2d 899, 900, syllabus 3 of the Court.

The savings and-loan association certificates involved in Flesher, supra, certified “Mrs. Carrie E. Cook or Abbie P. Flesher as joint owners and not as owners in common, on the death of one the survivor to become the absolute owner.” The money for the certificates was provided by Mrs. Cook who thereafter gave them to Mrs. Flesher. The Oklahoma Supreme Court said (1. c. 902): “This transaction standing alone and solely upon the writings evidencing the establishment of the joint accounts leads to but one conclusion and, that is, that Carrie E. Cook intended that the association stock * * * [was] jointly owned by herself and Abbie P. Flesher, with the right of survivorship.” In Barton v. Hooker, Okl., 283 P.2d 514, 517, Miss Barton “was the owner of the funds placed in these accounts, but transferred them to herself and [her nephew] as joint tenants by a written instrument signed by both herself and [her nephew]. We do not see what more she could have done to create the joint tenancy.” (Our emphasis). Also see, City National Bank & Trust Co. v. Conrad, Okl., 416 P.2d 942; Hadwiger v. Melkus, Okl., 365 P.2d 726.

Admittedly the circuit court, and hence this court, never acquired jurisdiction of the Miami Savings and Loan Association. That portion of the trial court’s judgment ordering the Miami association to deliver the savings account to the estate was erroneous because it had no authority to do so and also because, as we hold, the account actually belongs to Oba T. Ensley as the surviving joint tenant of the savings account. Generally, a court may grant such relief in a declaratory judgment action as equity dictates and the proof requires (26 C.J.S. Declaratory Judgments § 160, pp. 372-374) and jurisdiction of the actual contestants herein (the estate and Mrs. Ensley) gives the court jurisdiction to render an appropriate decree binding on the parties no matter where the subject matter may be situate. McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 739(24); St. Louis Smelting & Refining Co. v. Hoban, 357 Mo. 436, 209 S.W.2d 119, 122(2).

The certificates of deposit issued by Security National Bank to the order of “L. Elmo Melton or Oba T. Ensley” were not within the purview of V.A.M.S. § 362.-470 nor accompanied by a contract expressing the intention of the parties. Therefore, we have no presumption of joint tenancy with the incident of survivorship and the burden was cast upon Oba to show by a preponderance of the evidence the deposits creating the certificates were made with the intention of creating a joint tenancy. See cases in notes 6 and 7, supra.

Missouri opinions generally hold the establishment of a joint account with right of survivorship constitutes a gift on the part of the joint depositor who contributed the money to the other depositor. “The transfer of money to or the creation of a joint account is not necessarily a gift of the entire account or all of the money there on deposit, but it is a present donation of a partial interest in the form of a right to withdraw and the right of survivorship.” In Re Patterson’s Estate, supra, 348 S.W.2d at 10(3, 4). Of course, if it was an absolute gift of all the money and dominion over the account no joint tenancy would remain and the many statements indicating a requirement the donor must divest himself completely of all beneficial interest and control over the account seem incongruous to the theory of joint ownership.

The $1,000 certificate of deposit was prepared by an employee of Security National Bank who testified Elmo had instructed her to issue it as a joint account with right of survivorship. Although obviously misinformed as to legal technicalities, the bank’s cashier asserted the bank employees were told the form to use when a depositor requested a joint account with right of survivorship was “just with the word ‘or’ placed between the names.” The $2,074.49 certificate was issued by the cashier to the order of “L. Elmo Melton or Oba T. Ensley” as Elmo had “specifically asked.” Mistaken notions of Elmo and bank personnel as to the particular form necessary to presumptively establish a joint tenancy with attendant right of survivorship, would not dilute actual evidence of Elmo’s intention to create joint ownership of the certificates with Oba. Neither do we believe the fact the bank gave $51 interest to Elmo to be potently persuasive for the estate, for if the certificates were, in fact, held in joint tenancy, the bank was privileged to pay the interest “to either during the lifetime of both.” V.A.M.S. § 362.470. We are mindful that before the second certificate was issued and the first was replaced by another to take advantage of “the better [interest] rate,” Elmo had received an explanation of “the meaning and intendment” of a joint account and had executed two joint account contracts which set forth the elements of joint ownership. We cannot assume Elmo was ignorant of the significance of the term at the times he gave the certificates to Oba and “said it was a joint account * * * so we could both have them.” That this was Elmo’s intention as understood by the bank is evidenced by its conduct in cancelling the certificates after Elmo died and giving Oba new ones payable to herself and her son with the assurance the certificates payable to “Oba T. Ensley or Donald C. Ensley” constituted a joint tenancy with right of survivor-ship.

It was said in Napier v. Eigel, 350 Mo. 111, 164 S.W.2d 908, 911(2), “* * * that proof of intention alone, even to grant a present interest, would [not] suffice without proof of conduct showing the carrying out or fulfillment of that intention.” This simply alludes to the general rule the validity of a gift is dependent upon an actual, constructive or symbolical delivery of the property to the donee. 38 C.J.S. Gifts § 18, pp. 794-797, and § 50, pp. 833-836. Here there was actual delivery by Elmo to Oba of both certificates which she accepted and retained until after his death. Not only does this show delivery, but also constitutes additional evidence shedding light on the intention of the parties and is to he taken into consideration in determining an intent to create joint ownership in a deposit. Michie on Banks and Banking, Vol. 5A, Ch. 9, § 46, at 119. The actual physical delivery to Oba of the certificates of deposit in question, coupled with Elmo’s instruction to the bank “that any mail or any matter that would be mailed out, go to Mrs. Ensley on the C.D.’s,” evidenced an intention on the part of Elmo to relinquish the sole and exclusive control and ownership of the certificates and to cause the certificates to be jointly owned with the attendant right of survivorship.

The claim of the administratrix is based upon a matter of form. The claim of Oba is based upon a matter of true intent and substance. We are of the opinion Oba sustained her burden of proving the certificates of deposit were intended to be, and were in truth deposits in joint tenancy with the attendant right of survivorship. Except for the form employed, the evidence indicates Elmo intended there be joint ownership of the certificates. We hold the trial court erred in not declaring Oba to be the owner of the two bank certificates of deposit.

Our last consideration is with the checking account in Security National Bank standing in the names of “L. Elmo Melton or Oba T. Ensley.” No presumption of joint tenancy accompanies this account and employment of the word “or” to join the names does not, of itself, give us a clue to what intention was involved when the account was established. The cashier did say joint accounts, including those subject to check, were put in form by the bank with “the word ‘or’ placed between the names.” However, the record is silent as to any instructions given by Elmo that this be a joint account with right of survivorship. All we know is that Elmo gave Oba the money for the purpose of opening the account. The account was established for the convenience of Elmo’s tenants and he alone used it to make his house mortgage payments. Oba said she didn’t want the checks which were given her by the bank. There is no evidence Elmo ever told Oba, or anyone, she was to have any interest in the account either during his lifetime or after his death. The simple truth of the matter is there exists a total void as to what Elmo’s intentions were as regards the bank checking account, except it was established for the convenience of his tenants. In such circumstances Oba did not sustain the burden cast upon her and the trial court was correct in declaring the estate to be the sole owner of the checking account.

Although counsel approved the transcript on appeal as correct, we note errors in the judgment as reported by the transcript as to the amount of the deposit with the Miami Savings and Loan Association. We assume these to be typographical errors that will be corrected upon remand. No objection is made to the attorney fees allowed defendant Security National Bank and defendant Joplin Federal Savings and Loan Association, so that portion of the judgment relating thereto stands.

The judgment of the trial court is affirmed as regards its allowance of attorney fees to defendants Security National Bank and Joplin Federal Savings and Loan Association and as to its declaration that plaintiff is the owner of and is entitled to the said checking account in Security National Bank of Joplin. Otherwise the judgment of the trial court is reversed, and the cause remanded with directions that the trial court enter judgment in accord with the views here expressed, and costs are to be assessed in obedience to the requirements of V.A.M.R. 77.16.

STONE, P. J., and HOGAN, J., concur.

      . Ison v. Ison, Mo., 410 S.W.2d 65, 69-70(7); Leuzinger v. Merrill, Lynch, Pierce, Fenner and Smith, Mo. (Banc), 396 S.W.2d 570, 578-579(10); Jackson Savings and Loan Association v. Seabaugh, Mo.App., 395 S.W.2d 260, 263(2); Jenkins v. Meyer, Mo., 380 S.W.2d 315, 320(4); In Re Baker’s Estate, Mo.App., 359 S.W.2d 238, 244(10); In Re Patterson’s Estate, Mo., 348 S.W.2d 6, 7-8 (1); Dalton v. American National Bank, Mo., 309 S.W.2d 571, 579; Clay County State Bank v. Simrall, Mo.App., 259 S.W.2d 422, 424-425(3); In Re Kaimann’s Estate, 360 Mo. 544, 229 S.W.2d 527, 529(2-3); Weber v. Jones, 240 Mo.App. 914, 222 S.W.2d 957, 959(1); Gordon v. Erickson, 356 Mo. 272, 201 S.W.2d 404-405(1); In Re Geel’s Estate, Mo.App., 143 S.W.2d 327, 329-330(1); Melinik v. Meier, Mo.App., 124 S.W.2d 594, 597(3); Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081(1); Schnur v. Dunker, Mo.App., 38 S.W.2d 282, 284(1-2); Mississippi Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W.2d 58, 63(1, 2); Ball v. Mercantile Trust Co., 220 Mo.App. 1165, 297 S.W. 415, 418(2, 3).

      . Krummenacher v. Easton-Taylor Trust Co., Mo.App., 306 S.W.2d 593, 599(1, 2); Connor v. Temm, Mo.App., 270 S.W.2d 541, 546(2); Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820 (6); Harvey’s Estate v. Huffer (Banc), 125 Ind.App. 478, 126 N.E.2d 784, 785; Burns v. Nemo, 252 Iowa 306, 105 N.W.2d 217, 223(7); Perkins v. City National Bank of Clinton, 253 Iowa 922, 114 N.W.2d 45, 50; In Re Estate of Smith, 199 Kan. 89, 427 P.2d 443, 446-448(3-8); Simonich v. Wilt, 197 Kan. 417, 417 P.2d 139, 145(9, 10).

      . Hardin v. Ray, Mo.App., 404 S.W.2d 764, 767 (2-4); Thies v. St. Louis County, Mo., 402 S.W.2d 376, 379; Robson v. United Pacific Insurance Co., Mo., 391 S.W.2d 855, 860(3); Frimel v. Blake, Mo.App., 360 S.W.2d 258, 261(2); Davison v. Rodes, Mo.App., 299 S.W.2d 591, 593(2); Dickinson v. Bankers Life and Casualty Co., Mo.App., 283 S.W.2d 658, 663(5); Fisher v. Miceli, Mo., 291 S.W.2d 845, 848(3); Fischer v. Morris Plan Co., Mo.App., 275 S.W.2d 393, 395(4); Connor v. Temm, supra, 270 S.W.2d at 546-547(3, 4); Commerce Trust Co. v. Watts, supra, 231 S.W.2d at 820(7); Sol Abrahams & Son Const. Co. v. Osterholm, Mo.App., 136 S.W.2d 86, 92(1, 2); Drake & Beemont Mut. Aid Society Against F. & L. v. United States, 8 Cir., 330 F.2d 548, 552(3); National Surety Corp. v. Curators of University of Mo., 8 Cir., 268 F.2d 525, 528(2), 529-530(5).

      . “Joint Savings Account — Beware!” P. Pierre Dominique, 21 Journal of The Missouri Bar, p. 202.

      . “Another View of Joint Bank Accounts,” Charles B. Blackmar, 21 Journal of The Missouri Bar, p. 394.

      . Ison v. Ison, supra, 410 S.W.2d at 70 (8, 9); Jenkins v. Meyer, supra, 380 S.W.2d at 320(3), 320-321(5, 6); Newcombe v. Farmer, Mo.App., 360 S.W.2d 272, 276(3); Cranford v. Langston, Mo.App., 356 S.W.2d 581, 584; Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600, 603(1), 603-604(2); Murphy v. Wolfe, supra, 45 S.W.2d at 1081(2, 3); 10 Am.Jur.2d, Banks, § 369, pp. 330-333; 48 C.J.S. Joint Tenancy § 3d, pp. 917-919.

      .Knox College v. Jones Store Co., Mo., 406 S.W.2d 675, 685; Longacre v. Knowles, Mo., 333 S.W.2d 67, 70-71(5, 6); The Law of Banks and Banking, by Carl Zollmann, Vol. 5, § 3223, pp. 242-244; Michie on Banks and Banking, Vol. 5A, § 46, pp. 113-118.


author: ANDERSON, Presiding Judge.

text:
    In the Matter of Connie Sue TAYLOR, John Edward Taylor, Erwin Joe Taylor, Maryetta Margaret Taylor, Felix Christopher James Taylor, and Samuel J. Michael Taylor, Minors Under the Age of Seventeen Years. John Edward TAYLOR and Enzie Bonetta Taylor, his wife, Petitioners, v. Dewey SMALLEN, Juvenile Officer for the County of St. Francois, State of Missouri, Respondent.
    No. 33103.
    St. Louis Court of Appeals. Missouri.
    Oct. 26, 1967.
    William C. Bernhardt, DeSoto, for petitioners.
    David L. Colson, Asst. Pros. Atty., Farm-ington, for respondent.
   ANDERSON, Presiding Judge.

Petitioners, John Edward Taylor and Enzie Bonetta Taylor, husband and wife, have caused to be filed in this Court a petition for a writ of habeas corpus wherein they allege that their six children are being illegally detained by Dewey Smallen, Juvenile Officer of St. Francois County. The prayer of the petition is that said writ issue and the Court order said children returned to their custody. Said petitioners claim they are entitled to the relief sought by virtue of this Court’s decision in Cause No. 32,515, 419 S.W.2d 473, decided by this Court September 19, 1967.

From the opinion and the transcript in said cause, the contents of which we take judicial notice as being a part of our records, State ex rel. Ponath v. Hamilton, Mo., 240 S.W. 445; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889; Burton v. Moulder, Mo., 245 S.W.2d 844; it appears that on April 17, 1964, the Juvenile Court of St. Francois County entered its order finding that the six children were neglected within the meaning of Chapter 211, R.S.Mo. 1959, placing their care and custody in the Division of Welfare, and ordering Miss Louise Gibson, Child Welfare Worker, Mrs. Margaret Simpson, County Health Nurse and the Deputy Sheriff to effect the change of custody immediately; the order was executed the same day. Nowhere does it appear that an appeal was ever taken from the order of the Court in said cause, or that there has been any modification of said order by said Court. Nor do petitioners in the matter now before this Court contend that the order was void or that it has been reversed or modified. Instead petitioners, as heretofore stated, contend that under this Court’s decision in Cause No. 32,515 entitled: In re Taylor et al. the children are now being illegally held and should be discharged from the custody of Dewey Smallen, Child Welfare Officer and Juvenile Officer of St. Francois County and delivered to petitioners, John Edward Taylor and Enzie Bonetta Taylor, parents of said children.

The last above mentioned case was an appeal from a judgment of the Circuit Court of St. Francois County, terminating the petitioners’ parental rights to said children in an action brought for that purpose by Dewey Smallen, as Juvenile Officer of St. Francois County. This Court held there was no evidentiary basis for the decision and reversed the judgment. No determination was made with respect to the custody of the children. Since it has not been shown that the order of the Juvenile Court entered April 17, 1964, has been set aside or modified it must be presumed that it is now in full force and effect. The application for the writ is denied.

RUDDY and WOLFE, JJ., concur.


author: PER CURIAM.

text:
    HERRICK MOTOR COMPANY, a corporation, Plaintiff-Appellant, v. FISCHER OLDSMOBILE COMPANY, Inc., Defendant-Respondent.
    No. 8666.
    Springfield Court of Appeals. Missouri.
    Oct. 25, 1967.

      Robert D. Durst, Springfield, for plaintiff-appellant.
    Lilley & Cowan, Max W. Lilley, Springfield, for defendant-respondent.
   PER CURIAM.

In this suit in equity for reformation of the cancellation paragraph of a lease, plaintiff lessor, Herrick Motor Company, a corporation, appeals from the decree finding the issues in favor of defendant lessee, Fischer Oldsmobile Company, Inc. By the lease sought to be reformed (hereinafter referred to as the 1964 Fischer lease) which was executed under date of Februray 26, 1964, plaintiff let to defendant three contiguous tracts (hereinafter referred to as the leased premises) in Springfield, Missouri, for a term of three years from February 28, 1964, to February 28, 1967, at a monthly rental of $1,000. The cancellation paragraph in that lease provided: “The Lessee may cancel this lease on March 1, 1964, or at any time thereafter, by giving Lessor Sixty (60) days written notice prior to such cancellation or upon the payment of Two Thousand Five Hundred Dollars ($2,500.00) to Lessor.” (All emphasis herein is ours.)

In Count I of plaintiff’s “Amended Petition to Reform Contract,” upon which the case was tried, it was averred that “plaintiff, as lessor, and defendant, as lessee, entered into an agreement and (sic) for the lease of the building” on the leased premises (an automobile showroom and garage constructed in 1951) “for a term of three years * * * and mutually agreed upon a cancellation provision” in the same language as that quoted above, excepting only for substitution of the conjunction “and” for the italicized disjunctive particle “or.” Plaintiff further asseverated that the cancellation paragraph “was incorrectly written and did not express the intent or actual agreement of the parties, but was a mutual mistake of fact in the writing therein of ‘oF instead of ‘and’ ”; and that such “mistaken and erroneous insertion of the word (‘or’) instead of (‘and’) was first observed by plaintiff after the attempted cancellation of the lease [by defendant lessee giving sixty days’ written notice thereof on March 31, 1965] and the refusal of the defendant to pay” $2,500 in addition to the rental for sixty days thereafter. The prayer of Count I was for a decree “directing and compelling defendant to execute a new and reformed contract which shall properly contain the word ‘and’ instead of ‘or/ or if said defendant fails to do so that the court make a finding that the agreement of the parties * * * include the word ‘and’ in lieu of ‘or/ and that the said contract be reformed by the court to comply with the mutual intent of both parties * * * and for such other relief including costs, as to the court seems just and proper.”

In Count II of said amended petition, plaintiff first incorporated by reference [Rule 55.14] all of the above allegations in Count I clearly intended to plead a cause of action for reformation on account of “a mutual mistake of fact,” and then added other averments just as plainly designed to plead a cause of action for reformation on the ground of defendant’s fraud, to wit, that “said lease and contract as written was erroneously, improperly and incorrectly drawn by defendant and was contrary to agreement between the parties and was written by defendant or defendant’s agent with the intent to defraud the plaintiff of it’s (sic) benefits under the agreement by changing the word ‘and’ * * * to the word ‘or’ and said deceitful action of the defendant did in fact mislead and decieve (sic) the plaintiff.” (All references to rules are to the Supreme Court Rules of Civil Procedure, V.A.M.R.) The prayer of Count II was for a decree “finding that the actual and correct agreement of the parties * * * included the word ‘and’ and not ‘or’ and that the said contract be reformed by the court to comply with the actual agreement of all the parties thereto * * * and for such other relief including costs as to the court seems just and proper.”

On August 24, 1966, the issues joined upon plaintiff’s amended petition and defendant’s answer theréto' were' tried and, written findings of fact and conclusions of law having been requested, the cause was taken under advisement. On December 8, 1966, the court filed such written findings of fact and grounds for decision [Rule 73.-01(b)], covering thirteen pages in the transcript on appeal, which included an accurate and comprehensive review of the facts, a sound and scholarly exposition of applicable legal principles, and the well-reasoned conclusion that “judgment should be in favor of defendant and against plaintiff on each count of plaintiff’s amended petition.” On December 19, 1966, plaintiff filed its motion for new trial, which closed with the prayer that the court “find for plaintiff and against the defendant on both counts of plaintiff’s amended petition * * or in the alternative * * * grant a new trial in this case.”

While plaintiff’s motion for new trial was pending, to wit, on January 6, 1967, plaintiff filed its “Motion to Amend Pleadings and for Judgment” (hereinafter referred to as the motion to amend) in which it sought leave (1) to amend the prayers of Counts I and II of its amended petition “by adding at the end of [each prayer] the words ‘and for judgement (sic) in the amount of Twenty-Five Hundred Dollars ($2,500.00),’ ” and (2) to add Count III to the amended petition (a) declaring “that the only reasonable and logical interpretation of the word ‘or’ as contained in [the cancellation paragraph] is as a conjunctive rather than as a disjunctive and therefore the defendants (sic) are obligated to pay to the plaintiffs (sic) Twenty-Five Hundred Dollars ($2,500.00), in accordance with the terms of this lease” and (b) praying for a “decree of this court interrupting (sic) the word ‘or’ as contained in [the cancellation paragraph] as a conjunctive rather than as a disjunctive and for judgement (sic) against defendant in the amount of Twenty-Five Hundred Dollars ($2,500.00) * * In the language of its brief, plaintiff thereby sought “to reform [the cancellation paragraph] * * * by an interpretation of the word ‘or* to mean ‘and’ or ‘and also,’ and judgment for $2,500.”

On January 12,1967, the court entered an order overruling plaintiff’s motion to amend and then its motion for new trial. On January 16,1967, plaintiff filed its notice of appeal “from the judgment of the Circuit Court, Division III, Greene County, Missouri, entered in this action on the 8th day of December, 1966”; and, on the same day, plaintiff’s counsel delivered to the court reporter an order in writing for the transcript on appeal. Rule 82.19.

Two days later, to wit, on January 18, 1967, the court “on its own motion [reconsidered] its ruling made on 1-12-67 overruling plaintiff’s motion to amend pleadings * * * [sustained] said motion’s request for leave to amend 1st amended petition by adding Count III * * * [considered] Count III on the evidence and [rendered] judgment in favor of defendant and against plaintiff on Count III * * On January 25, 1967, plaintiff filed another motion for new trial, closing with the prayer that the court “find for plaintiff and against defendant on each of the three counts of plaintiff’s amended petition * which said motion was overruled by order entered on February 3,1967.

From the foregoing resume, it will be seen that, when the case was tried upon the first amended petition, plaintiff sought reformation of the cancellation paragraph in the 1964 Fischer lease on the ground of either an alleged mutual mistake of fact or defendants alleged fraud. Subsequent to trial of the case on August 24, 1966, entry of judgment for defendant on December 8, 1966, and the filing of plaintiff’s motion for new trial on December 19, 1966, plaintiff sought leave, by its motion to amend filed on January 6,1967, to plead and recover on still another ground of reformation, characterized in the language of plaintiffs brief as “to reform [the cancellation paragraph] * * * by an interpretation of the word ‘or* to mean ‘and’ or ‘and also,’ and judgment for $2,500.” By its order of January 12, 1967, overruling the motion to amend, the court refused to permit this after-trial introduction of a third theory; and, its motion for new trial also having been overruled on January 12, plaintiff thereafter filed on January 16 its notice of appeal “from the judgment * * * entered in this action on the 8th day of December, 1966.” Of course, neither the court’s findings and judgment of December 8 nor plaintiff’s motion for new trial of December 19, 1966, mentioned or referred to plaintiff’s motion to amend subsequently filed on January 6, 1967. So plaintiff’s notice of appeal could not reasonably be construed as invoking or authorizing appellate review of the court’s order of January 12, 1967, overruling the motion to amend; and, in any event, no assignment of error with respect to the overruling of that motion was preserved for appellate review. Rule 79.03.

We are mindful that, after the filing of plaintiff’s notice of appeal on January 16, 1967, to wit, on January 18, the court sua sponte undertook to “[reconsider] its ruling made on 1-12-67 overruling plaintiff’s motion to amend pleadings,” grant leave to amend plaintiff’s first amended petition by adding Count III, consider that count “on the evidence,” and then “[render] judgment in favor of defendant and against plaintiff on Count III.” However, the judgment of December 8, 1966, became final when the trial court overruled plaintiff’s motion for new trial on January 12, 1967 [Rule 82.05(a)]; and the timely filing of plaintiff’s notice of appeal on January 16, accompanied by payment of the docket fee [Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148(2)], was the only requirement necessary to invoke appellate jurisdiction and make the appeal “effective.”. Rule 82.04; Whealen v. St. Louis Soft Ball Ass’n, 356 Mo. 622, 624, 202 S.W.2d 891, 893(1); Weller v. Hayes Truck Lines, 355 Mo. 695, 700, 197 S.W.2d 657, 660(4). Although the trial court was not thereby divested of jurisdiction over its records [Kansas City v. Jones Store Co., 325 Mo. 226, 244, 28 S.W.2d 1008, 1013(10), certiorari denied 282 U.S. 873, 51 S.Ct. 78, 75 L.Ed. 771; Bailey v. Bailey, Mo.App., 317 S.W.2d 636, 637(1)] or of authority to exercise functions “of a merely ministerial or executive character” [State ex rel. Patton v. Gates, 143 Mo. 63, 68, 44 S.W. 739, 741] prior to filing of the-transcript on appeal (e. g., approving a supersedeas bond [Rule 82.09(a)], permitting the filing thereof after expiration of the period originally designated [Rule 82.10], or extending the time for filing the transcript- on appeal [Rule 82.19]), the effective filing of the notice of appeal did suspend further exercise of judicial functions by the trial court [Niedringhaus v. Wm. F. Niedringhaus Inv. Co., Mo.App., 54 S.W.2d 79, 80-83, certiorari quashed State ex rel. Williams v. Daues, 334 Mo. (banc) 91, 66 S.W.2d 137; Case v. Smith, 215 Mo.App. 621, 628, 257 S.W. 148, 150-151(6)] and it did thereby lose jurisdiction of the case. Kansas City v. Jones Store Co., supra, 325 Mo. at 245, 28 S.W.2d at 1013; Vaughn v. Kansas City Gas Co., 236 Mo.App. 669, 674, 159 S.W.2d 690, 693.

The post-appeal order and judgment of January 18,1967, in which the trial court undertook to consider Count III (i. e., plaintiff’s so-called theory of reformation by interpretation) “on the evidence” and to render judgment thereon, and likewise the subsequent order of February 3 overruling plaintiff’s post-appeal (second) motion for new trial filed on January 25, were unauthorized [Alchian v. Fadler, 240 Mo.App. 610, 615, 212 S.W.2d 78, 81(1); Case v. Smith, supra, 215 Mo.App. at 628, 257 S.W. at 150-151(6)]; and plaintiff’s notice of appeal theretofore filed on January 16, 1967, neither invoked nor permitted appellate review of the aforesaid post-appeal orders and judgment by which the trial court undertook to consider and rule “on the evidence” plaintiff’s theory of reformation by interpretation. Abernathy v. Coca-Cola Bottling Co. of Jackson, Mo.App., 370 S.W.2d 175, 179(6).

With the case in this posture as it was lodged here, plaintiff properly might have sought appellate review on the two theories pleaded in his first amended petition upon which the case was tried, to wit, reformation for an alleged mutual mistake of fact or defendant’s alleged fraud; but, as is demonstrated and established by the “Points and Authorities” in plaintiff’s brief, neither of those theories is presented or relied on here. In the first three “Points” in its brief, plaintiff simply complains that the trial court erred (1) in overruling plaintiff’s timely (first) motion for new trial filed on December 19, 1966, (2) in overruling its motion to amend filed on January 6, 1967, and (3) in overruling its post-appeal (second) motion for new trial filed on January 25, 1967. Those “Points” are framed in utter disregard of the controlling requirement that points relied on shall state not only what actions or rulings of the court are sought to be reviewed but also “wherein and why they are claimed to be erroneous” [Rule 83.05, subds. (a) (3) and (e)] and present nothing for appellate review. Fitch v. Star-Times Pub. Co., Mo., 263 S.W.2d 32, 33(1); Marlo Coil Corporation v. Grand Park Corporation, Mo.App., 348 S.W.2d 610, 612-613(4); Onka v. Butkovich, Mo.App., 294 S.W.2d 357(2). See Walker v. Thompson, Mo., 338 S.W.2d 114, 116-117(6, 7).

The last “Point” in plaintiff’s brief is that: “IV. The trial court erred in not following the well established law in Missouri that the word ‘or’ will be construed to mean ‘and’ where the instrument from its four corners requires such construction and the Missouri law that the word ‘or’ will be interpreted to mean ‘and’ whenever required to carry out the plain purpose of the contract, and when to adapt (sic) the literal meaning would defeat the purpose of the contract or lead to an absurd result.” In answer to defendant’s-respondent’s motion to dismiss the appeal for failure to comply with Rule 83.05, plaintiff’s counsel insists that we should overrule the motion because this is an equity case reviewable de novo on appeal [Rule 73.01(d); 3 West’s Missouri Digest, Appeal and Error, and there is but a “single obvious question” [Milanko v. Austin, 362 Mo. 357, 362, 241 S.W.2d 881, 882(2), certiorari denied 342 U.S. 906, 72 S.Ct. 298, 96 L.Ed. 678; McQuate v. White, Mo., 389 S.W.2d 206, 210 (1)] which is readily discernible from, and adequately posed by, the above-quoted Point IV and the succeeding “Argument.” But, in thus seeking to avoid being cast onto Scylla on the one hand, plaintiff has overlooked the peril of being drawn into Charybdis on the other hand. For, in suits in equity as in actions at law, a party is bound on appeal by the position he took in the trial court [Johnson v. Duensing, Mo. (banc), 332 S.W.2d 950, 957(13); Long v. Lackawanna Coal & Iron Co., 233 Mo. 713, 732, 136 S.W. 673, 678; Cook v. Bolin, Mo.App., 296 S.W.2d 181, 184(5)] and an appellate court will not review a case upon a theory different from that upon which it was tried nisi. Voelker v. St. Louis Mercantile Library Ass’n, Mo., 359 S.W.2d 689, 693 (2); Kenner v. Aubuchon, Mo., 280 S.W.2d 820, 826(1); Gover v. Cleveland, Mo.App., 299 S.W.2d 239,242(4).

As we have seen, plaintiff pleaded and tried the case as one for reformation of the cancellation paragraph of the 1964 Fischer lease on account of either mutual mistake of fact or defendant’s fraud, but neither of those theories has been preserved or presented on appeal. Rather, the above-quoted Point IV simply seeks construction or interpretation of the cancellation paragraph, apparently intended to invoke appellate review on plaintiff’s so-called theory of reformation by interpretation, i. e., “by an interpretation of the word ‘oid to mean ‘and’ or ‘and also,’” which plaintiff unsuccessfully sought to interject by its untimely after-trial and after-judgment motion to amend by adding Count III to the first amended petition.

Actually, this so-called theory of reformation by interpretation is not one of reformation, that being the “[rjemedy, afforded by courts of equity to the parties, to written instruments which import a legal obligation, to reform or rectify such instruments whenever they fail, through fraud or mutual mistake, to express the real agreement or intention of the parties.” Black’s Law Dictionary, 4th Ed., p. 1446. See 76 C.J.S. Reformation of Instruments § 30, p. 374 ; 36A Words and Phrases, Reformation, pp. 188-189. That plaintiff has, in truth, altogether abandoned its theories of reformation for mutual mistake of fact or fraud, upon which the case was tried and determined, is graphically demonstrated by several statements in plaintiff’s post-submission “memorandum” filed by leave of court, e. g., (a) this case “is different from most decisions concerning reformation,” (b) “in one sense of the word appellant [plaintiff] is asking the court to sustain the contract as written,” (c) “the only thing appellant really asks is that [the cancellation paragraph] be given a sensible and reasonable meaning in conformity with the established law with reference to the meaning of ‘or’ and ‘and,’ ” and (d) “in most reformation cases the language is clear, one of the parties is trying to change the language of the written lease, whereas in [this] case we are asking the court to correctly read and correctly interpret the language contained in the lease.” As in Husted v. Van Ness, 1 App.Div. 120, 36 N.Y.S. 1043, 1045, affirmed 158 N.Y. 104, 52 N.E. 645, “[w]hat the plaintiff really wants is not a reformation of the instrument, but a judicial construction of its meaning.” In this connection, see 3 Corbin on Contracts, § 540, p. 84, Reformation of Contract Distinguished from Interpretation.

It has been said that equity will not entertain an action brought nominally to reform an instrument but really to obtain judicial construction thereof. Moore v. Hamilton, 93 W.Va. 529, 117 S.E. 229, 231 (2); Husted v. Van Ness, supra, 36 N.Y.S. at 1045, affirmed 52 N.E. at 646(3); 76 C.J.S. Reformation of Instruments § 4, p. 329. But regardless of that, plaintiff’s present so-called theory of reformation by interpretation undoubtedly is quite different from its theories of reformation for mutual mistake of fact or fraud, upon which the case was pleaded, tried and determined nisi; and, having thus switched ponies in the middle of the judicial stream, plaintiff is not entitled to appellate review on its changed theory. This is dispositive of the appeal even though defendant’s-respondent’s motion to dismiss for failure to comply with Rule 83.05 be overruled.

However, since we have, ex gratia, carefully considered the case on its merits, we briefly record our views with respect thereto. When the automobile showroom and garage were constructed on the leased premises in 1951, plaintiff was the authorized Oldsmobile agency in Springfield. In 1953, Douglas Oldsmobile Company, a corporation, became the authorized Oldsmobile agency and, as lessee, took possession of the leased premises under a five-year lease (the 1953 Douglas lease) executed by plaintiff, as lessor, which provided for a monthly rental of $1,250 and granted to Douglas the right to cancel on December 1, 1956, or thereafter “by giving Lessor sixty (60) days written notice prior to such cancellation and upon the payment of Seven Thousand Five Hundred Dollars ($7,500.00) to Lessor.” In 1958, plaintiff as lessor and Douglas as lessee entered into a three-year lease of the same premises (the 1958 Douglas lease) which provided for the same monthly rental of $1,250 and granted to Douglas the right to cancel on December 1, 1958,” or thereafter “by giving Lessor Sixty (60) days written notice prior to such cancellation or upon the payment of Two Thousand Five Hundred Dollars ($2,-500.00) to Lessor.” In 1961, shortly after the death of Douglas’ president, defendant Fischer became the authorized Oldsmobile agency, and plaintiff and defendant entered into a three-year lease (the 1961 Fischer lease) which provided for a reduced monthly rental of $1,000 and granted to defendant the right to cancel on June 1, 1961, or thereafter on precisely the same terms as those in the 1958 Douglas lease, i. e., “by giving Lessor Sixty (60) days written notice prior to such cancellation or upon the payment of Two Thousand Five Hundred Dollars ($2,500.00) to Lessor.” And the cancellation paragraph in the 1964 Fischer lease under consideration (as quoted in toto in the initial paragraph of this opinion) granted to defendant the right to cancel on March 1, 1964, or thereafter on precisely the same terms as the above-quoted terms in the 1958 Douglas lease and in the 1961 Fischer lease.

Thus, under the 1958 Douglas lease lessor Herrick simply was assured that, in the event of cancellation, it would receive an amount not less than the equivalent of the stipulated rental for sixty days, and the cancellation paragraphs of the 1961 Fischer lease and the 1964 Fischer lease worked the same result and provided the same assurance to lessor. It is noted in passing that, upon trial of the instant case, plaintiff produced the 1953 Douglas lease and both of the Fischer leases but that the 1958 Douglas lease was produced by defendant after Everett Herrick, plaintiff’s president and principal witness, who handled “most” of the corporate business, did “most of the negotiating” of all leases, and on behalf of the corporation executed all of them excepting only the 1961 Fischer lease, insisted that “I don’t have a copy of that ’58 lease.”

Everett, as well as his brothers Ira, vice-president, and Sam, secretary, were mature businessmen who had been engaged in the operation of an automobile agency for many years. The cancellation paragraph was the last numbered paragraph in each of the leases, followed only by a short two-line or three-line “Conclusion” paragraph. Ira, who executed the 1961 Fischer lease on behalf of plaintiff corporation, first stated that “I read the [1961] lease” before he lost his recollection on this subject immediately following an “objection” by plaintiff’s counsel that “the witness ought to be thoroughly aware of what he’s talking about * * * particularly when he’s contradicting himself.” Although Everett “didn’t read [the 1964 Fischer lease] word for word” before he signed it, he admittedly “glanced over it.” Avowing ignorance that the disjunctive “or” and not the conjunctive “and” had been used in the cancellation paragraph, Everett glossed over his professed failure to read the 1964 Fischer lease more carefully with the comment that “I had no reason to.” Significantly, as the trial chancellor thought and we agree, after defendant gave notice of cancellation on March 31, 1965, nothing was said by any of plaintiff’s officers about defendant’s alleged liability for payment of an additional $2,500, until some time after defendant had vacated the leased premises about May-31, 1965, and had moved into another building. Compare Dildine v. Rimpson, Mo.App., 240 S.W.2d 214, 221, 223.

As exemplified by cases cited in plaintiff’s brief, there are situations in which “or” properly may be construed as “and” where that is necessary to effectuate the intention of the parties as gathered from the four corners of the instrument [e. g., Garrett v. Damron, Mo., 110 S.W.2d 1112, 1116(7); Jones v. Haines, Hodges & Jones Bldg. & Development Co., Mo.App., 371 S.W.2d 342(6); Weisman v. Continental Life Ins. Co., 216 Mo.App. 13, 19, 267 S.W. 21, 23(2)] or where that is required to carry out the plain purpose of the instrument and adoption of the literal meaning would defeat that purpose or lead to an absurd result. Ex parte Lockhart, 350 Mo. 1220, 1234, 171 S.W.2d 660, 666(21). See Hurley v. Eidson, Mo.(banc), 258 S.W.2d 607, 608(1). But, while “or” may be sometimes so used as to mean “and”, it is disjunctive in its very nature [Jenkins v. Meyer, Mo., 380 S.W.2d 315, 321] and its ordinary use is as a disjunctive particle [State v. Combs, Mo., 273 S.W. 1037, 1039] that marks an alternative corresponding to “either,” as “either this or that.” Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 671, 51 S.W.2d 114, 118(9); State v. McGee, 336 Mo. 1082, 1101, 83 S.W.2d 98, 110(42); Hanley v. Carlo Motor Service Co., Mo.App., 130 S.W.2d 187, 191(7); Boland v. Byrne, Mo.App., 145 S.W.2d 755, 757(4). To the same effect, see Drainage Dist. No. 1 of Bates County v. Bates County, Mo., 216 S.W. 949, 953(12); Rust v. Missouri Dental Board, 348 Mo. 616, 627, 155 S.W.2d 80, 85(10); Sheets v. Thomann, Mo.App., 336 S.W.2d 701, 710(12). Considering the 1964 Fischer lease in its entirety and taking the record as a whole, we find neither reason nor justification for construing “or” in the cancellation paragraph of that lease other than in its natural and ordinary sense as a disjunctive particle marking an alternative corresponding to “either.” Hence, if plaintiff’s so-called theory of reformation by interpretation had been preserved and presented for appellate review on its merits, we would have been constrained to rule it against plaintiff.

Defendant’s motion to dismiss the appeal is overruled and the judgment nisi for defendant is affirmed.

All concur.

      . Strictly speaking, interpretation and construction of written instruments are not the same, in that interpretation is concerned only with ascertaining the sense and meaning of the subject-matter or form of words and stops at the written text, while construction is a term of wider scope which signifies determining the meaning and proper effect of language by a consideration of the subject-matter and attendant circumstances. Dorrance v. Dorrance, 242 Mo. 625, 644, 148 S.W. 94, 98; Black’s Law Dictionary, 4th Ed., p. 954. See 22 Words and Phrases, Interpretation — Construction distinguished, p. 384. However, it has been said that these terms “are so alike in their practical results, and are used so interchangeably, as to have become almost synonymous.” Russell v. Ayer, 120 N.C. 180, 27 S.E. 133, 140, 37 L.R.A. 246. They seem to have been so used by plaintiff’s counsel in the instant case, and the distinction in meaning is unimportant here.