author: WOLFE, Judge.

text:
    Austin B. DUKE, Plaintiff-Appellant, v. Edwin B. MEISSNER, Jr., Theodore A. Kienstra, Lee M. Carter, Edwin J. Putzell, Jr., and Arthur B. Baer, Individually and as members comprising the Board of Police Commissioners of the Department of Police, St. Louis County, Missouri, and Raymond W. Hensley, Superintendent of Police, Defendants-Respondents. Herman C. BIRMES, Plaintiff-Appellant, v. Edwin B. MEISSNER, Jr., Theodore A. Kienstra, Lee M. Carter, Edwin J. Putzell, Jr., and Arthur B. Baer, Individually and as members comprising the Board of Police Commissioners of the Department of Police, St. Louis County, Missouri, and Raymond W. Hensley, Superintendent of Police, Defendants-Respondents.
    Nos. 32532, 32533.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 7, 1967.
    Application to Transfer Denied Sept. 11, 1967.

      Richard J. Hackmeyer and Joseph A. Lott, Clayton, for plaintiff-appellant.
    Joseph B. Moore, County Counselor, Thomas W. Wehrle, Deputy County Counselor, and Morton I. Golder, Associate County Counselor, Clayton, for respondents.
   WOLFE, Judge.

These are appeals from a judgment of the Circuit Court which affirmed a decision of the Board of Police Commissioners of St. Louis County. The matter came before the Board of Police Commissioners on appeals from an order of the Superintendent of Police suspending and reducing in rank Herman C. Birmes, who was a Captain of Police, and Austin B. Duke, who held the rank of lieutenant. Both officers appealed and by agreement their appeals were consolidated and considered together before the Board and before the Circuit Court. Both appealed from the Circuit Court judgment to this court and both appeals are herein considered.

The Board of Police Commissioners of St. Louis County was established by Art. 5, § 49 of the St. Louis County Charter. The Board under the charter appoints a Superintendent of Police and hears appeals from decisions of the Superintendent of Police arising from disciplinary matters in the department. It also promulgates, upon recommendation of the Superintendent of Police, a manual of rules and regulations for the “qualifications, conduct and discipline of personnel of the Department of Police, and its operation.” The code of discipline adopted provides, in part, in Paragraph 6.11:

“Discreditable Conduct, that is to say, if he acts in a manner prejudicial to discipline or tending to bring discredit on the reputation of the Department.”

And in Paragraph 6.17(d) :

“Corrupt Practice, places himself under obligation, pecuniarily or otherwise, to any person who operates an establishment at which intoxicating beverages are sold, to any person who holds a license concerning the granting or renewal of which the Department may have to report or give evidence, or to any person engaged in any illegal or immoral activity.”

From articles appearing in the press stating that these two high ranking officers, who are the appellants here, had an interest in a St. Louis tavern known as the “Golden Horn” a member of the Board of Police Commissioners directed the Superintendent of Police to investigate the matter.

He investigated and the following facts were disclosed as stipulated to by attorneys for the appellants here.

“Come now Appellants Herman C. Birmes and Austin B. Duke, by and through their attorneys of record, and Respondent Raymond W. Hensley, by and through his attorney of record, and do hereby stipulate as follows:
“1. That V. Gladys Birmes, wife of Herman C. Birmes, Appellant, and Betty Jane Duke, wife of Austin B. Duke, Appellant, together with Alfred Von Talge and Clara Rivituso, wife of John Rivi-tuso, were the original incorporators of Gravois-Nagel Investment Co., a corporation of the State of Missouri incorporated on the 4th day of March, 1965, and authorized to commence business on the 22nd day of March, 1965.
“2. That the records of the Secretary of State indicate that the aforementioned four persons, V. Gladys Birmes, Betty Jane Duke, Clara Rivituso, and Alfred Von Talge each owned 125 shares of the 500 original shares of stock issued in the said Gravois-Nagel Investment Co.
“3. That the first officers of the said Gravois-Nagel Investment Co. are as follows: President, Alfred Von Talge; Vice-President, Clara Rivituso; Secretary, Betty Duke; and Treasurer, V. Gladys Birmes.
“4. That the first board of Directors of the said Gravois-Nagel Investment Co. are as follows: Alfred Von Talge, Clara Rivituso, Betty Duke and V. Gladys Birmes.
“5. That the said Gravois-Nagel Investment Co. did during the month of April, 1965, purchase a parcel of real estate known as 6981-83 Gravois Avenue, in the City of St. Louis and said Gravois- ■ Nagel Corporation did enter into business, doing business as Golden Horn Restaurant on said premises.
“6. That the State of Missouri Department of Liquor Control and the City of St. Louis did license the said Gravois-Nagel Investment Co. to sell retail liquor by the drink, and John Rivituso was the managing officer of the corporation for said licenses.
“7. That intoxicating liquor was sold on the premises of the Golden Horn Restaurant property, incidental to the restaurant operation.
“8. That Appellant Austin B. Duke and'Betty Jane Duke, his wife, did borrow the sum of $5,250 from the Bank of Overland, Overland, Missouri, which sum together with other funds withdrawn from a joint savings account in the name of Austin B. Duke and Betty Jane Duke, his wife, were used for the purchase of the 125 shares of the Gravois-Nagel Investment Co.
“9. That Appellant Herman C. Birmes and V. Gladys Birmes, his wife, did borrow the sum of $5,000 from the Lemay Bank and Trust Company, St. Louis County, Missouri, which funds together with other funds withdrawn from a joint savings account in the name of Herman C. Birmes and V. Gladys Birmes, his wife, were used for the purchase of the aforementioned 125 shares in the Gravois-Nagel Investment Co.
“10. That Alfred Von Talge, incor-porator, shareholder, member of the board of directors, and president of Gravois-Nagel Investment Co. is the same Alfred Von Talge who is a partner in and operator of Al’s Ten Mile House, a tavern licensed and selling 5% beer in the unincorporated area of St. Louis County, Missouri, at 10004 Gravois.”

In addition to the foregoing stipulated facts the following undisputed evidence was presented to the Board:

Captain Birmes and Lieutenant Duke initially discovered that the property on Gravois Avenue in St. Louis, suitable for a restaurant and cocktail lounge, was for sale. The building had previously been used for this purpose. They conceived the idea of buying the property and, perhaps, leasing it for operation as a restaurant and cocktail lounge. They then decided not to lease it but to retain control over their investment by getting somebody to operate the business. Von Talge was approached by appellants for the purpose of providing money and “know how.” He offered to act as a “financial partner” in the project according to Captain Birmes’ testimony, and he produced John Rivituso to act as manager of the restaurant and cocktail lounge.

Captain Birmes and his wife, Lieutenant Duke and his wife, Von Talge, and Rivituso or his wife each put up $6,250.00 to make a total equity capital of $25,000.00. The bal-anee of the $55,000.00 purchase price of the building plus the cost of renovation and some equipment was obtained by a $40,-000.00 mortgage loan.

Alfred Von Talge was in 1963 arrested for violation of State laws governing the sale of intoxicating liquor at his tavern in St. Louis County. At that time and in connection with the proceedings against Von Talge, Sergeant William Carson, a subordinate of Captain Birmes, appeared and testified before the Board of Liquor Control in Jefferson City and before the Magistrate of the Fourth District, St. Louis County. There was no conviction in the Magistrate Court but Von Talge’s license to sell 5% beer was suspended for thirty days. Captain Birmes testified that he was aware of other arrests. He testified that “He (Von Talge) was arrested on other occasions. I think that Lt. Duke arrested him at one time.”

Lieutenant Duke testified that he had known Von Talge personally for about eleven years and in 1956 or 1957 had arrested him and his bartender for violation of the liquor laws.

It was also shown that both Captain Birmes and Lieutenant Duke exchange information with the St. Louis Police Department regarding crime in St. Louis County and St. Louis and that the police department in St. Louis County works with the St. Louis Liquor Control office.

Both officers could be called upon to testify before the State Liquor Control Commission regarding violations of State Liquor Laws of which they had knowledge.

With regard to John Rivituso, the manager of the Golden Horn Restaurant and Cocktail Lounge, whose wife is vice president of the corporation, the evidence was that in June, 1946, he was convicted of burglary in the Circuit Court of Hillsboro, Missouri, and placed on parole. Rivituso himself testified to this and also admitted that he had been arrested in August, 1959, suspected of liquor law violation and in August of 1960 suspected of setting up and operating a gambling house.

The shares of stock in the Gravois-Nagel Investment Company represented the joint investment of Captain Birmes and his wife and Lieutenant Duke and his wife although held in the names of the wives only. It was admitted that each officer and his wife invested $6,250.00 in this enterprise which was raised by the bank loans referred to above plus money withdrawn from joint savings accounts. Both officers testified that they had nothing to do with the operation of the establishment in question. However, meetings of the officers of the corporation were held at Captain Birmes’ house in his presence and Mrs. Birmes, as treasurer, made out payroll checks for the corporation. Also, Lieutenant Duke testified that he attended business meetings “either at Mr. Von Talge’s house or Mr. Birmes’ house.”

The suspended officers also offered in evidence a program printed in 1965 for the “Bridlespur Horse Show.” This show was sponsored for the benefit of the St. Louis County Police Welfare Association. The program has numerous advertisements of business establishments in St. Louis County and some breweries and taverns are among the advertisers. Part of the advertisements were solicited by the police officers.

It is contended that the officers were afforded no hearing by Col. Hensley, Superintendent of Police. There is no provision for a hearing before the Superintendent. He made a thorough investigation and in conference with his assistant decided that the facts disclosed warranted the summary action taken. There is absolutely no dispute about facts disclosed and a hearing, if held, would have done nothing more than to corroborate them. The contention therefore is without merit.

It is also asserted that the Board of Police Commissioners did not constitute an impartial board and that the appellants should have been allowed to interrogate members and disqualify them. The reason advanced is that the members of the Board ordered the Superintendent to investigate the matter involving the two officers after the press had carried stories about the interest they had in the tavern business. The Board is the administrative body of the Police Department. It is its duty to see that the department is efficiently run and staffed with competent officers who will conduct themselves in accordance with the rules adopted by the Board. They have the added duty of hearing appeals when an officer disciplined by the Superintendent appeals to them from a disciplinary order made. It is a dual function.

They constitute the sole body before whom an appeal may be heard. We must assume they will honestly and efficiently perform the duties imposed on them by law and accord an impartial hearing of such appeals. The record before us shows that they have done so. Wide latitude was afforded the offending officers to present evidence both as to their activities and as to extraneous matters thought by the officers to be in mitigation of their offense. We rule this point against the appellants. State ex rel. Murphy v. Burney, 269 Mo. 602, 191 S.W. 981; The State ex rel. Heimburger v. Wells, 210 Mo. 601, 109 S.W. 758.

The last contention raised is that the Board’s action was “arbitrary, capricious and unreasonable.” Review of the Board’s action by the Circuit Court and this court upon appeal is a limited function which has been stated ad infinitum. We review the record, with proper deference to the findings involving credibility of the witnesses, to determine whether the Board could have reasonably made its findings and reached its results upon consideration of all of the evidence before it; and to set aside its decision only when, it is clearly contrary to the overwhelming weight of the evidence. Foster Bros. Mfg. Co. v. State Tax Commission of Missouri, Mo., 319 S.W.2d 590.

The punishment assessed was withm the rules adopted for the enforcement of discipline. The ruling of the Board was fully supported by the evidence and the point raised is wholly without merit.

For the reasons stated the judgment of the Circuit Court affirming the award of the Board of Police Commissioners is affirmed.

ANDERSON, P. J., and THEODORE McMILLIAN, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    John NIEHAUS, Paul A. O’Neill and Dennis Zavidil, Trustees of Bayberry Hills Subdivision, Plaintiffs-Appellants, v. John C. MITCHELL and Mrs. John C. Mitchell and Albert Maescher, Jr., and Mrs. Albert Maescher, Jr., Defendants-Respondents.
    No. 32374.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.
    Motion for Rehearing and Modification, or to Transfer to Supreme Court Denied July 7, 1967.
    Application to Transfer Denied Sept. 11, 1967.

      Robert T: Ebert, Robert R. Young, St. Louis, for appellants.
    David G. Dempsey, Dempsey, Zerman & Dempsey, Clayton, for respondents.
   CLEMENS, Commissioner.

By these consolidated actions the plaintiff subdivision trustees seek judgments for the amounts of special improvements assessed against the defendants’ lots, plus interest and attorney fees. Judgment in the circuit court went for the defendant lot owners, and the plaintiff" trustees appeal.

The ultimate issue is the legality of the assessment. That hinges on the answer to this question: Where an assessment could be levied only upon a petition to the trustees signed by the owners of 51 per cent of the lots in the subdivision, should lots held by the entirety be counted where only one of the owning spouses signed the petition? Our answer is no. We come to this conclusion in two steps. First, we have decided that the requirement calls for a majority of lots rather than a majority of persons. Second, we have decided that where a lot is owned by the entirety it can be burdened only by the joint action of both spouses.

The lot owners’ petition to the trustees shows one or both signatures for 36 of the 63 taxable lots: for 12 lots both husband and wife signed; for 24 lots only one person signed. Thus, if we count lots where one or both spouses signed, then the owners of more than 51 per cent of the lots did sign the petition to the trustees. But if we count only the lots where both spouses signed the petition, then the owners of less than 51 per cent of the lots signed the petition.

The two cases were filed in magistrate court and from there certified to the circuit court, where they were consolidated and submitted on an agreed statement of facts. It stipulated: (1) The plaintiffs are the trustees of Bayberry Hills subdivision under a trust indenture. (2) Defendants Mr. and Mrs. John C. Mitchell own one lot in the subdivision and defendants Mr. and Mrs. Albert Maescher, Jr., also own one lot. (3) On June 5, 1962, the trustees resolved that each lot be assessed $70, payable July 1, 1962, and the trustees so notified all lot owners by letter requesting their written approval. (4) There are 63 lots subject to special assessment. The agreed statement of facts further stated: (5) “That attached hereto and made a part hereof is the executed form signed by either the husband or the wife, or both, as .joint owners of thirty-six (36) lots, or fifty-seven per cent (57%) of the lots subject to special assessments ; that the total number of lots wherein signatures of both the husband and wife as joint owners were obtained was less than fifty-one per cent (51%) of the lots subject to the special assessment.” (6) “That all lot owners, excepting defendants herein, have paid the special assessment.”

To set the stage for the trustees’ actions, we spotlight the key parts of the trust indenture : It empowered the trustees to maintain Bayberry Lane, a 40-foot private street running through the subdivision. For this maintenance the trustees on their own initiative could levy an annual 25 cents-a-foot assessment against abutting lots. Beyond this normal maintenance, the trust indenture mapped out a three-step procedure for levying assessments to pay for additional street improvement like that involved here. The first step was a petition requesting the improvements, “signed by the owners in fee of lots in said subdivision who will have to pay at least fifty-one per cent (51%) of the cost *

The second step to be taken, pursuant to the owners’ request, was for the trustees to estimate the cost and assess it pro rata against all lots. The third step was a notice from the trustees to the lot owners telling them the amount and due date of the assessments.

On June 5, 1962, without any prior request from lot owners, the trustees began the action on which they base their claim for the special assessments. Their minutes recite: “ * * * It was unanimously agreed to accept the contract from Ma-plewood Construction Co. for $5,465.00 for Road repairs * * *. It was agreed that a petition will be circulated to authorize a special assessment of 70⅝⅜ a front foot (100 ft. per lot) for street repairs. Assuming that the signatures can be acquired within a week, the special assessment will be payable July 1, 1962. A letter was drafted to so inform all property owners of this action. Copy attached.”

The letter sent to the lot owners recited the “proposal of Maplewood Construction Co. in the amount of $5,462” for street repairs, said that a petition would soon be circulated among the lot owners to authorize an assessment of $70 per lot, and concluded: “Assuming that the required signatures can be acquired within a week, the special assessment will be payable on July 1,1962. * * * ”

By proceeding in that way the trustees ignored the prescribed three-step procedure. They started with the second step by accepting a bid for repairs and levying an assessment — without prior request from the lot owners; then they took the third step by notifying the lot owners of the assessment; last they sought to meet the requirement of the first step by requesting the owners to sign a petition that should have been initiated by the lot owners. We pass over the irregularity of this procedure, however, to reach the crucial issue briefed by the parties: the sufficiency of signatures on the lot owners’ petition.

The authority of the trustees to levy the assessment was conditioned on a written petition “signed by the owners in fee of lots in said subdivision who will have to pay at least fifty-one per cent (51%) of the cost of such contemplated improvement or improvements.” Shorn of excess verbiage— and considering that each of the 63 lots would be charged with Yeard of the total cost — this condition can be interpreted to read “signed by the owners of 51 per cent of the lots.” We will so consider it.

The plaintiff trustees argue that this condition was met by the agreed fact that the petition was “signed by either the husband or the wife, or both, as joint owners of thirty-six (36) lots, or fifty-seven per cent (57%) of the lots * * *.” By contrast, the defendants insist the provision for signatures by the owners of 51 per cent of the lots is disproved by the other agreed fact that “the total number of lots wherein signatures of both the husband and wife as joint owners were obtained was less than fifty-one per cent (51%) of the lots * In support of their contrasting interpretations, the plaintiff trustees cite cases based on a condition requiring consent by a majority of persons who own interests in the lots, and the defendants cite cases based on a condition requiring consent by the owners of a majority of the lots.

The first issue then, pared tó the bone, is this: Does the condition refer to a majority of persons or a majority of lots? We repeat the condition — “signed by the owners in fee of lots in said subdivision who will have to pay at least fifty-one per cent (51%) of the cost * * *.” ■ We think a fair reading of the condition calls for a majority of lots, not a majority of persons. But even if there was doubt about this interpretation, the same goal would be reached by applying the well-traveled and analogous rule that ambiguous tax legislation is construed in favor of the taxpayer and against the taxing authority. A. P. Green Fire Brick Co. v. Missouri State Tax Com’n, Mo., 277 S.W.2d 544[4]. The principle is equally sound here. 48 Am. Jur., Special or Local Assessments, § 4.

Anticipating this interpretation that the petition must be signed by the owners of a majority of the lots, the plaintiff trustees put forth their principal contention: that where a lot is owned by the entirety, the signature of one spouse suffices as the signature of the lot owner. The plaintiffs cite three cases to support this contention. However, our conclusion that the plaintiffs’ authority was conditioned on consent by the owners of a majority of the lots distinguishes our case from plaintiffs’ cited cases. This, because the cited cases concern special assessments where remonstrances were measured per capita rather than by the number of lots, as here. Thus, in both Rhodes v. Koch, 195 Mo.App. 182, 189 S.W. 641, and Kitchen v. City of Clinton, 320 Mo. 569, 8 S.W.2d 602, the pertinent statutes concerned remonstrances by “a majority of the resident owners.” Similarly, in Blackwell v. City of Lee’s Summit, 326 Mo. 491, 32 S.W.2d 63, the statute concerned “a majority of the [resident] owners of the property liable to taxation.” All three cases hold that where the number of remonstrances is to be measured per capita, the husband and wife are each counted as an owner. These three cases are no help to us because here the magic number is the number of lots, not the number of individual owners. This distinction was similarly noted by us in Marks v. Bettendorf’s, Inc., Mo.App., 337 S.W.2d 585[19].

To further support their contention that the signature of one spouse suffices as the signature of the lot owner, the plaintiffs cite Findley-Kehl Inv. Co. v. O’Connor, Mo. (banc), 256 S.W. 798[8]. Superficially that case does support plaintiffs. It concerned the necessary number of remonstrances under an ordinance that barred a special assessment upon objections by a majority of the residents owning a majority of the front feet on the street. Thus, the count was based both on persons and ownership. The “Sills lot” was owned by the entirety, but only Mr. Sills signed the remonstrance. The question was whether to count the whole frontage of the lot or only half of it. The outcome of the case depended on other issues — not just on the Sills lot — and the Supreme Court answered the question rather summarily: “The ownership of Sills, who signed, pertained to the whole frontage or estate and not a part. This is true, although the wife was living. She likewise was an owner of the whole. We think this whole frontage should be counted.”

That statement from the Findley-Kehl case does not control our decision — for two reasons. First, the case resulted in a decision, not an opinion. Second, the case concerned an act by one spouse to protect the property rather than to burden it, as here. These reasons in turn.

The Findley-Kehl case was considered by our court in Marks v. Bettendorf’s, Inc., supra. In rejecting the quoted statement we said, at 337 S.W.2d l.c. 594:

“The opinion of the writing judge in the above case was concurred in by two others, and one concurred only in the results. Three judges dissented. Since the results could be reached and the trial court affirmed without counting the estate by the entirety in the Findley case, we can only conclude that four of the seven judges disapproved of the law as stated by the writer of the opinion. The effect of the Findley opinion was to affirm the trial court and nothing else, and is therefore not authority on any legal point.”

For this reason we need not follow the portion of the Findley-Kehl case on which plaintiffs now rely.

A contrary result was reached in Marks v. Bettendorf’s, Inc., supra. It is akin to our case because it, too, concerned a majority of area rather than a majority of owners. Also, it squarely presented our problem of the numerical sufficiency of signatures where only one of two spouses signed for a lot owned by the entirety. There, the legislative power to change zoning ordinances could not be exercised if there was a protest by the owners of ten per cent of the land in the area of the proposed change. We distinguished this ordinance provision from other cases “wherein the sufficiency of the protest is not measured by the area represented, but by the number of the owners that signed.” In the Marks case, some of the lots were owned by the entirety but only one of the spouses had signed the protests; and eliminating the lots so signed for, the required ten per cent of the whole area was not met. In denying the sufficiency of the protests we said:

“That property held by the entirety can in such a way be affected by one of the owners, acting in his own behalf, is completely repugnant to the character of such estates. For this reason, we hold that tracts held by the entirety, where only one owner signed, should not have been counted in arriving at the amount of footage represented by the objectors.”

We follow that ruling and now hold that the trustees may not count the requests of lot owners where the request was made by only one of two spouses owning lots by the entirety. Therefore, the petition to the plaintiff trustees was insufficient authority for their assessment because the petition was not signed by owners of 51 per cent of the lots affected by the assessment.

The second distinction between our case and the Findley-Kehl case — that of burdening the property rather than protecting it — appears in the dissent by Ruddy, J., in Marks v. Bettendorf’s, supra. The plaintiffs urge us to follow the dissent. That would not help them, however, because it was applied to situations where the lone spouse acted to protect rather than to burden the entirety estate. In the Marks case, as in every case cited in this opinion, the issue was the authority of one spouse to sign as an owner to protect the property against proposed municipal action, such as a tax assessment or a zoning change. Here, we have the other side-of the coin: the authority sought by these plaintiffs was the permission of lot owners to burden the lots. In his dissent (337 S.W.2d 1. c. 597), Judge Ruddy “distinguished between a situation where one cotenant attempted to impose a burden on the interests of the other cotenant and one where the cotenant through his act or signature was protecting the entire estate from injury or loss.” He said:

“My brother judges hold that it ‘is completely repugnant to the character’ of property held by the entirety to permit the signature of one to affect the property. This statement is correct if it is applied to a situation where one of the owners attempts to burden the property with the cost of an improvement which will result in a tax lien against the property or in any similar situation where the nature of the petition signed imposes a burden on the property.”

This statement cleaves to the principle that where land is held by the entirety the husband and wife hold it not as separate individuals but as one person, and neither one acting alone can adversely affect the other’s interest. Samuel v. Frederick, Mo., 262 S.W. 713[3], and Robinson v. Pattee, 359 Mo. 584, 222 S.W.2d 786 [2], The principle has been applied to block the action of a husband — acting alone — to encumber an estate by the entirety with a mechanic’s lien (Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144[4]), and the husband’s action to bind his wife’s interest by signing a contract to sell their real estate (Austin & Bass Builders, Inc., v. Lewis, Mo., 359 S.W.2d 711 [2, 8]). The principle is just as binding here.

So, Judge Ruddy’s dissent is actually authority for defendants’ theory here: that where only one of two lot-owning spouses signed the petition to burden their land with an assessment, their lot cannot be counted among those whose owners requested the assessment.

Plaintiffs put forth two further arguments that the trial court erred in not finding ■ for them. They say the defendants — “by their silence, inaction, and refusal to seek injunctive relief” — are es-topped from questioning the validity of the lot owners’ petition. They point to the agreed statement that “all lot owners, excepting defendants herein, have paid the special assessment.” From this, plaintiffs argue that “certainly the majority of lot owners necessary to request the improvement have ratified and corrected any possible error in the petition * *

Without any attempt at definition, we can safely say that the principles of estoppel and ratification are based on evidence of such complex factual elements as knowledge of the facts, acceptance of benefits, change of position, agency, and approval of conduct. If plaintiffs wanted to rely on defendants’ acts to show estoppel and ratification in order to make their own case, then the burden was on plaintiffs to show those acts. The only evidence here is the agreed statement of facts. It is devoid of evidence on which plaintiffs now base their argument of estoppel and ratification, so we reject the argument.

The judgment for defendants is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


author: TOWNSEND, Commissioner.

text:
    Larry FORTUNE, Plaintiff-Respondent-Appellant, v. Carol Fortune SINCO, Defendant-Appellant-Respondent.
    Nos. 32228, 32334.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.

      Forgey & Sindel, St. Louis, for defendant-appellant-respondent.
    Benson Cytron, House Springs, for plaintiff-respondent-appellant.
   TOWNSEND, Commissioner.

Motion to modify provisions of divorce decree relating to custody of minor children was sustained and the father of children was given general custody and control. This appeal (No. 32,228) followed the overruling of mother’s motion for new trial or for new judgment.

On April 10, 1962 a decree of divorce was entered by the Circuit Court of St. Louis County upon defendant wife’s cross-bill after the husband withdrew his petition for divorce. The decree awarded the care, custody and control of two children, a boy and a girl, then twenty-two months and nine months of age, to the mother with temporary custody for one day per week to the father and with rights of reasonable visitation otherwise. Child support of $15.00 per week for each child was granted together with attorney’s fees to the wife.

The sequence of events is best stated in terms of epochs in the lives of the children involved.

Epoch 1: The mother, hereinafter referred to as defendant, kept custody of the children until about December 15, 1962, when, owing to financial difficulties, she turned the children over to> the father, mov-ant herein, under terms which are the subject of dispute.

Epoch 2: The children continued in the custody of the movant from December, 1962, to about April 27, 1964, with intermittent visits by the mother.

Epoch 3: On the latter date, with the consent of movant, the defendant took the children from movant’s home for an overnight stay with her. Defendant advised movant by telephone the following day that she was not returning them. Instead she took the children to Kansas City where she had taken up residence the preceding February. Under date of June 11, the defendant advised movant by letter that the children were with her in Kansas City, a fact of which he was unaware until receipt of the letter. Upon his search for them one week thereafter at the address given he was unable to find them. When he returned from Kansas City he had a call from Ralph Sinco, whom the mother later married — on June 20, 1964. A week later rnovant procured possession of the children in Kansas City upon paying the defendant $150, a sum which Ralph Sinco had requested that he pay her. The $150 was paid applicable as child support for the periods during which the children were with the defendant. Upon the last occasion movant told defendant that he was taking the children just for the week-end.

Epoch 4: Since receiving possession sometime in June, 1964, the movant has maintained the children in his home in Cedar Hill, Missouri.

Defendant testified that during Epoch No. 1 she had no income other than the child support payments up to September, 1962, and during that period she lived with her parents. In September, 1962 she moved in with a Mr. and Mrs. Spencer and went to work for Dunkin’ Donut. She states that in this time movant became delinquent in respect to six weekly payments for a total of $180; he limits his delinquencies to four weeks in July 1962 when he was in the hospital. By December 1962, defendant had lost her job with Dunkin’ Donut and had accumulated obligations of about $200 for groceries and clothing. When she attempted to collect delinquent payments from movant, he told her that he also had financial troubles and suggested that he take the children to live with him as he was getting married in about two weeks. Upon the advice of friends and because of her financial position, she relinquished the children to him. For the three weeks prior to delivering the children to the movant, they lived most of the time with a baby-sitter.

In Epoch No. 2, defendant lived with her parents for about six weeks after losing her job with Dunkin’ Donut. She then moved to Chicago because “I can make more money up there and I was going to school up there.” She attended American Beauty School, paying her tuition with money borrowed from a girl friend; she procured a job also as soon as she reached Chicago. She worked at Harding’s Restaurant in Chicago from January to May 1963 and then for three and one half weeks at Chicago Motor Club, returning to St. Louis in June 1963. For two months thereafter she lived with her parents and then with Mr. and Mrs. Spencer until February 1964. Upon return from Chicago, defendant worked at Howard Johnson’s in St. Ann for about three months and then successively at Mondello’s Barber Shop and King Brothers Motel until a few days before her departure from the St. Louis area. In February 1964 she removed to Kansas City where she took employment with Villa Capri until April 1964.

While working at the barber shop defendant met Ralph Sinco, then in process of being divorced, and went out with him three or four times a week until she moved to Kansas City. By February 1964 defendant and Sinco had decided to get married. They travelled to Kansas City by separate conveyances at the same time and they took up residence in separate apartments in the same apartment house; defendant moved therefrom in three weeks.

At the hearing defendant’s chief complaint related to her asserted inability readily to see the children, a difficulty which she limited to the six months period preceding her removal to Kansas City. She testified that she saw the children “Every second weekend or every weekend if they let me see them”, that when she was residing in Chicago she came down by train— with one exception when she drove down with friends. Upon such occasions she would keep the children with her overnight. She stated that for the six months prior to taking the children to Kansas City “I had an awful lot of trouble visiting.” At times the children might be at their grandmother’s and she couldn’t see them. Upon at least one occasion she was told that they had other plans made. On deposition she had said: “Now I would say it started about six months ago when I started having difficulty seeing them.” At the hearing the following testimony was had:

“Q As a matter of fact, you have very little trouble seeing the children; they objected taking them overnight on occasion?
A Yes, sir, they did object overnight quite a few times.
Q Did they ever tell you you could not come and visit the children in the home?
A No, unless they were at her grandmother’s or out some where else.
Q Unless they had some other plans, is that'correct?
A Yes, sir.”

During the period of her residence in Kansas City defendant testified that she came to St. Louis every weekend to see the children but that owing to variations in her work schedule the day was not always the same and consequently movant and his wife never knew when she was coming.

The testimony of the parties is at variance as to the frequency of defendant’s visits to the children and as to the circumstances. Movant characterizes her visits as occasional, at irregular periods, sometimes every two weeks, sometimes separated by six or eight weeks. Sometimes she visited them only in movant’s home and on some occasions she was allowed to take the children with her; the first time she took them overnight was in the summer of 1963. Only once did movant refuse to permit her to take them overnight — “The roads were bad. We had snow all around and she wanted to take the children to Tennessee to see her grandparents and I refused.” Upon only one occasion did defendant request that movant return custody and that was done “halfheartedly” over the telephone in the summer of 1963; after discussion she agreed to leave the children with movant.

Defendant’s testimony indicates that she had no difficulty of any moment in visiting her children until shortly before she took them away in April 1964. It is clear that she visited with the children in movant’s home and upon occasion took them away with her. Movant’s present wife testified:

“Q You ever talk to Carol, now Carol Sinco, Larry Fortune’s prior wife, about her visiting the children or to have custody, take possession of the children at any time?
A You mean when she wanted to come and get them, yes, sir.
Q Yes.
A She either called the home and then Larry asked me if I could have them ready for the day she wanted them.
Q When you say if you could have them ready, would she take them over night, what did you do to get them ready?
A Usually called that afternoon and wanted to know that evening or called that evening and have them that morning and would I have them ready. I would have their suitcases packed.
Q You would pack the clothes for the children at that time so that she could take them?
A Yes, sir.”

Upon the April 1964 occasion, defendant came to movant’s home without prior notice and wanted to take the children overnight.

The present Mrs. Fortune was reluctant to have them go because “We had been gone all day to the doctor with the baby and the kids were tired.” She communicated with movant and he finally said to let them go. As to this incident Mrs. Fortune testified:

“Q The first you knew that she wanted to take the children that day was when she came by the house ?
A Yes, sir, drove up the gate and said they wanted the kids that day.
Q You said they, who? A Ralph and Carol.
Q Had she ever done that before?
A No, no.
Q She usually called previously? A Yes, sir.
Q You have any objection to Mrs. Sinco having temporary custody of the children while in your home?
A No, I have always been nice to her and Carol came to the home and gone to their room. I never said anything wrong to her.
Q Has she visited this home with the children ?
A Yes, sir, all the time.”

Epoch No. 3. Prior to her trip to St. Louis in April 1964 defendant had quit her job in Kansas City and had made tentative arrangements to move into quarters with a girl friend, take care of the latter’s children while the latter worked and “help with the groceries”, an arrangement which was consummated upon her return to Kansas City with her children. That arrangement continued until the end of May 1964, when in anticipation of her marriage to Sinco, defendant rented a house a week before the marriage and moved there with her children. Other events of this period have been detailed above.

After securing possession of the children in June 1964 — Epoch No. 4 — movant filed his motion, on June 23, to Vacate the original custody order and to enter a new order awarding custody to him. On the following day defendant filed her motion to modify the original order by eliminating that part giving the father temporary custody for one day per week and by restricting the father’s rights to the right of visitation at reasonable times only.

There is some evidence that in the early part of August, 1964 movant at first refused to let defendant see the children but that, after consultation with his attorney, she was permitted to visit them at movant’s home. There is also some evidence that later in August movant declined to allow defendant to see them on the Saturday when she telephoned but told her that she could see them the next day, Sunday. There was no further elaboration of these events.

Movant is a meat-cutter and at the time of the hearing was employed at a salary of $141 per week. He goes to work at six in the morning and returns home at three. His wife states that the whole family spends its evenings, week-ends and days off together. Their home is a two-story brick house of eight rooms situated on two acres, on which movant has a purchase agreement. It is located on a blacktop road upon which the school bus operates regularly. Each child has its own separate room. The present Mrs. Fortune stated that the children were twenty-nine months and sixteen months of age when they came into her care; she described her feeling toward them in these words: “Tammy is like my own baby because I took care of her since she was a baby. I broke her from the bottle and had taken care of her. She feels like my baby. I love her.” Q: “How about Teddy?” A: “I love him too, very much.”

Mr. Sinco worked at service stations prior to and after his removal to Kansas City and, on the side, delivered ice machines and venders, a business in which his father was engaged as Kold Draft, Incorporated. At the time of the hearing Ralph Sinco was working for Kold Draft. The house in which he and defendant lived after marriage was described by his mother as a frame house, “in good condition as old houses go” with “four rooms down and a bath, basement, and they got two rooms up”; defendant stated that it had three bedrooms and was completely and newly furnished. Rental was $105 per month.

One of defendant’s witnesses testified to the good care which defendant gave the children prior to turning them over to their father in 1962. Defendant’s mother emphasized the patience, energy and good care of defendant in attending to the needs of the children in the same period. The mother of Ralph Sinco testified to her observations of the children during the period when they were with defendant in Kansas City; they were kept clean and had good food — “I would say she is a good mother.”

At some unspecified time defendant had caused a garnishment to be run against movant effectively tying up his wages. In her affidavit for execution defendant swore to unsatisfied obligations in the amount of two thousand dollars, although at the hearing she placed his delinquencies at a maximum of six weeks payments or approximately $180. As a result of the garnishment movant was forced to give up his job and procure employment elsewhere.

Ralph Sinco’s first wife testified as to Sinco’s frequent use of profane and obscene language in the presence of their children, including the use of four-letter words which she would not repeat. Sinco did not testify. There was no evidence as to his earning capacity or as to his financial condition.

It is not necessary to pile citation upon citation to show that, in cases involving the initial award of custody or motions for change of custody, “the overall welfare of the children is paramount” (Kimble v. Kimble, Mo.App., 399 S.W.2d 630, 634), that “The only rigid, inflexible and unyielding principle * * * is that the welfare of the child is paramount and supreme” (W— v. S—, Mo.App., 414 S.W.2d 352, 360).

Where a court has before it appropriate for consideration a request for a change of custody, modification of an existing custody order will be granted only upon proof of changed conditions affecting the welfare of the children to a substantial degree; the burden is necessarily upon the moving party to show the existence of those changed conditions which justify and require the displacement of one custodial party and the substitution of another. M-v. M-, Mo.App., 313 S.W.2d 209, 212.

A mere recitation of the undisputed testimony shows clearly that change of conditions which must exist in order to justify a change of custody. Birrittieri v. Swan-ston, Mo.App., 311 S.W.2d 364. While there is no direct evidence of defendant’s circumstances at the time of divorce, it is plain that her situation worsened in the seven and one half months following the decree. She and the children lived in her parents’ home, but for a considerable portion of that period the parents were away traveling and defendant was not working. In a short time defendant was in a straitened financial condition, indebted for groceries, utility bills and medical services, a condition contributed to in part by mov-ant’s inability to make support payments for a brief period while in the hospital. Defendant moved from the parents’ home, procured employment for a short time and placed the children in the custody of a baby sitter. There was a progressive deterioration both in defendant’s financial position and in her ability to devote to the children the time and attention which their tender years required. In this dilemma, knowing that movant was about to remarry, she voluntarily turned care and control over to him. For the next eighteen months, defendant lived at ten different places in the St. Louis area, Chicago and Kansas City and was employed for varying periods at seven different business establishments. In that period defendant only once raised any question about resumption of her custodial rights under the decree and then, upon further consideration, dropped the matter and acquiesced in movant’s continued custody.

Thus, we see that for the period up to the end of April 1964, custody de facto with the attendant cares and responsibilities was in the movant, although, formally, right of custody rested in defendant. In that period the mother moved from place to place and shifted from one employment to another — from all which a finding of instability might well be made. Admittedly the children have a good home with movant; they receive the regular attention of their father in the evenings, on weekends and on his days off. The record is devoid of any instance of mistreatment or lack of care. They are associated with their much younger half-sister, play with her and “take[s] care of her so much.” The entire group appears to be a well-knit family unit. The present Mrs. Fortune has given a mother’s devotion to the children since they were twenty-nine months and sixteen months of age respectively.

We are urgently reminded that it is a widely accepted “principle” that, all other matters being equal, the custody and control of children of tender years should be entrusted to the mother. We are furnished ample evidence of the continued reiteration of that proposition. But that frequency of repetition has not whetted its cutting edge as a tool for analysis, and that, for the reason that not all other factors are equally weighted in importance, Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 199, except in the highly unusual case. Where, in the infrequently encountered situation, the other factors are found to be in such a finely balanced state, then the stated proposition may well be utilized as a makeweight in order to arrive at a decision. But the qualification of equality as to other matters reduces the utility of the “principle” to the minimum. If the qualification be not satisfied, the “principle” is irrelevant. A reverential obeisance to motherhood cannot compete with the cardinal principle that the welfare of the child is the supreme consideration.

Defendant .urges also that since she has now established herself in society, has the security of a husband and has procured a home and facilities for care of the children, her right to custody should be reaffirmed. At the time of the hearing, she had been married to the second husband for slightly more than two months. They had then occupied their home for approximately the same length of time. Her contention that her condition of life had been improved and stabilized rests upon an experience of two months, which we can hardly regard as of sufficient length to establish conclusively a metamorphosis of living pattern upon which to found the custody of children. We have admonished that “The court should not indulge in experiments with so important a trust, especially where the child is in a home where it receives good treatment and moral training.” Bir-rittieri v. Swanston, supra. We believe that this counsel is as well applicable to an entreaty for the reaffirmation of a custodial decree as to a request for a change of custody. If this court were to deny movant’s motion here on the ground that defendant’s condition in life had improved we would, to say the least, be ordering the making of an experiment as to defendant’s future living pattern, the success of her second marriage, the suitability of the stepfather as guide and exemplar. Continuance of the father’s custody involves no such experimentation. The quality of his custody has been time — and experience— tested.

It is self-evident that, if the custody had been awarded initially to the movant, there is nothing in the record which would justify taking that custody away from him. During the time that the children have lived in his home the conditions of their existence have been made stable; the routines of their daily lives have been established. The care and training which they have received have been superior to that accorded to them otherwise. But the father has had only custody de facto, although a custody voluntarily conferred on him. If his motion had not been sustained, that custody de facto would have been extinguished. While the criteria governing the maintenance of a custody once ordered are not the same as those which require an official change of custody we think that in this case the evidence which would without question have precluded the taking of custody from the father in the hypothetical case is more than ample to sanction here the vesting qf custody in him. Bearing in mind that judicial endeavor must be directed toward achievement of the ultimate good of the children, the evidence requires the conclusion that that goal can be better approached by converting the commendable custody de facto into a decreed custody.

At the time of the trial court’s order modifying the custodial arrangement, the son Teddy was four years and eight months old and the daughter Tammy was three years and seven months of age. At the time of writing Teddy has reached seven years and Tammy is five years eleven months old. While the court’s order from which defendant has appealed must be considered as of the time it was issued, we cannot close our eyes to the fact that time has marched on. Of Teddy’s seven years, four and one half have been under the care of his father and the present Mrs. Fortune, except for the period of the Kansas City interlude. With the same exception four and one half of Tammy’s five and 11/12 years have been under the same care. However, we have viewed the situation of the parties and the children as of the time when the trial court’s order of modification was entered and agree with the disposition of the controversy made by the trial court at that time. While we have, of course, no knowledge of the conditions which have prevailed since the entry of that order, we note that it is the privilege of the mother to open anew the question of custody, if so advised, on the ground that in the interim there has been such a change of conditions affecting the welfare of the children that she should be reinvested with their custody.

Twenty-one days after defendant mother had filed her appeal in the matter of modification of the custody order, No. 32,228, she filed a motion for an order requiring the father of the children to pay attorney fees and expenses of the appeal. The latter motion was sustained and judgment for a total of $555 in respect thereof was entered against the father. After an unavailing motion by the latter for a new trial, he gave notice of appeal from that judgment (No. 32,334). The brief of each party bears the numbers 32,228 and 32,334. However in respect to the judgment for suit money the father stands in the position of an appellant and hence he rests under the necessity of complying with Supreme Court rules relating to the preparation and content of briefs. Here the father’s brief, although carrying the number 32,334, makes no reference of any kind to the judgment for suit money. Hence we have before us no appellant’s brief dealing with the subject of his appeal. The father’s appeal in No. 32,334 is dismissed for failure to comply with rules 83.05 and 83.06.

The judgment in No. 32,228 is affirmed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, the judgment in No. 32,228 is affirmed.

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

      Movant and the present Mrs. Fortune were married January 1,1963.


author: ANDERSON, Presiding Judge.

text:
    Henry A. PAYTON, Plaintiff-Appellant, v. BI-STATE DEVELOPMENT AGENCY, a Corporation, Defendant-Respondent.
    No. 32697.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 7, 1967.
    Application to Transfer Denied Sept. 11, 1967.

      Lusser, Hughes & Lusser, Rene E. Lus-ser, St. Louis, for plaintiff-appellant.
    John A. Walsh, Jr., St. Louis, for defendant-respondent.
   ANDERSON, Presiding Judge.

Plaintiff, Henry A. Payton brought this action against defendant, Bi-State Development Agency, for damages for personal injuries alleged to have been sustained by him in a collision between an automobile operated by him and a bus twned and operated by defendant, which said collision was alleged to be due to defendant’s negligence. Defendant, with its answer, filed a counterclaim for the damage to its bus which resulted from said collision. The trial below resulted in a verdict in favor of defendant on plaintiff’s cause of action and in favor of defendant for one dollar on its counterclaim. Judgment was thereafter entered from which judgment plaintiff prosecutes this appeal.

The collision occurred on September 27, 1966, at approximately 4:30 p.m. Plaintiff was employed as a taxicab driver and at the time in question, was operating his cab in a westerly direction on Pine Street in the downtown area of St. Louis. • Pine Street was a one-way street for westbound traffic having a total of four traffic lanes. Plaintiff was operating his cab in the lane next to the south curb of the street. The weather was clear and the street pavement was dry.

At said time, defendant, through its duly authorized agent and driver, was operating its bus in a northerly direction on Seventh Street. Seventh Street is one-way for northbound traffic and intersects Pine Street at right angles. It also has four traffic lanes. The intersection is controlled by traffic lights. Just prior to the collision, the bus had been stopped by its driver either to load or unload passengers at the southeast comer of the intersection. When this was accomplished, the bus moved forward to the point of collision. During this time, the driver of the bus was engaged in the process of changing the line of travel of the bus from the east curb lane into the next lane to the west. The collision occurred when the right side of the bus was two to three feet west of the east curb line. Defendant’s driver stated that the front of the bus when it collided with plaintiff’s cab had reached a point about three feet north of the south curb line of Pine Street.

Photographs of the bus which were introduced in evidence show that the front and right side of the bus do not form a right angle, but rather that the portion forward of the front door describes a curve, leading from the flat side of the bus into the front surface. The damage to the bus, as shown by the photographs, started at the right front corner slightly forward of the front door and extended approximately one-quarter of the way around the front of the bus. (Defendant’s Exhibits 3 & 4.) The damage to the cab was to the left front bumper, left front fender, left side and door.

Plaintiff testified that when he was approximately one-half block east of the intersection the traffic light changed from green to red for westbound traffic, and that he brought his cab to a complete stop in the south curb land in obedience to said traffic light. He stated his was the first vehicle stopped in the curb lane; that he was stopped about five or six feet east of the east curb line of Seventh Street for approximately forty to sixty seconds; that while stopped waiting for the green light, he observed defendant’s bus stopped at a point approximately eight to fifteen feet south of the intersection; that persons were either entering or leaving the bus at that time; that when the traffic light changed to green for westbound traffic, there were pedestrians in front of his cab crossing the street from north to south; that after these pedestrians passed he started his cab forward intending to proceed through the intersection; that he looked to his left and saw the doors of the bus closing and the bus starting to slowly roll forward; that it was then six or eight feet from the intersection ; and the front of his cab was either at or west of the east curb of Seventh Street; that at the time he thought the bus would stop for the red light, and he kept rolling forward; that he attained a maximum speed of five miles per hour or less and observed the bus a third time just a split second before the impact at which time he applied the brakes and was almost successful in stopping his cab before it was hit by the bus.

Louis Collins who was also a cab driver testified for plaintiff. He stated that prior to the collision he was in the south curb lane of Pine Street two or three car lengths behind plaintiff when the latter started forward toward the intersection after the traffic light changed to green. He first saw the bus when it was about three feet from the intersection and plaintiff was not quite into the intersection. Thinking that plaintiff did not see the bus he blew the horn of his cab to attract plaintiff’s attention. He saw- the collision. At that time, the traffic signal was green for westbound traffic on Pine Street.

Anton Becker, another cab driver, was proceeding west on Pine Street just prior to the collision. He was in the traffic lane to plaintiff’s right. When he reached Seventh Street, the traffic light was “go” for westbound traffic. He stated that plaintiff had barely “pulled out” when the bus struck him. The traffic light was green for westbound traffic at the time.

Defendant’s bus driver, Raymond C. Bell, was called as a witness for defendant. He testified that approximately a minute before the collision the bus was in the bus loading zone about eight to ten feet south of the south curb line of Pine Street. He was at the time taking on or unloading passengers. He stated that when this was accomplished, he closed the bus door, observed the traffic light to be in his favor, and started out into traffic; that he edged the bus up to the intersection and to his left toward the second lane; that while doing this he watched the traffic to his left; that he did not see plaintiff, or any westbound vehicles on Pine Street, either stopped or moving; that the sidewalk on the east side of Seventh Street was five or six feet wide and that he.could see eastwardly on Pine Street for that distance and “maybe” one foot more; that he did not see plaintiff’s cab until the collision had taken place; that after the collision he stopped the bus; that at the time of the collision the bus was “creeping about one mile per hour;” and that under the conditions existing at the time, and with safety to the passenger, he could have stopped the bus in less than a foot.

Defendant produced two witnesses who were passengers on the bus who testified that the traffic signal was green when the bus entered the intersection. Another passenger testified that northbound cars passed the bus as it proceeded toward and into the intersection. Still another witness testified that when the collision occurred, he arose from his seat and observed westbound traffic on Pine Street stopped.

By Instruction No. 3, plaintiff submitted his case to the jury on the theory that defendant was guilty of primary negligence in violating the traffic signal, failing to keep a careful lookout or failing to stop. He also by Instruction No. 5 submitted humanitarian negligence in failing to stop. Defendant submitted its counterclaim by Instruction No. 4 which predicated liability on a finding of negligence in violating the electric traffic signal.

Appellant’s first assignment of error relates to the action of the trial court in giving, at defendant’s request, Instruction No. 3A. Said instruction was a converse of plaintiff’s Instruction No. 3. The latter submitted primary negligence and by its terms directed a verdict for plaintiff if the jury should believe the defendant was negligent in that he either violated the traffic signal, or failed to keep a careful lookout, or failed to stop, and that said negligence caused plaintiff’s damage.

Instruction No. 3A reads as follows:
“Your verdict must be for defendant on plaintiff’s claim for damages unless you believe that defendant’s conduct was negligent as submitted in Instruction Number 3.”

The court also gave, at défendant’s request, Instruction No. 3B, which submitted the defense of contributory negligence on the part of plaintiff. It directed a finding for defendant, whether or not defendant was negligent, if the jury should believe plaintiff was negligent in that he either violated the traffic signal or failed to keep a careful lookout, and that said negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.

By Instruction No. S, plaintiff submitted humanitarian negligence. The instruction was in the form of MAI No. 17.14, and the negligent act hypothesized was failure to stop after defendant knew or could have known of plaintiff’s position of immediate danger.

The Court also gave, at plaintiff’s request, Instruction No. 4A, which submitted the defense of contributory negligence to defendant’s counterclaim. It directed a verdict for plaintiff whether or not plaintiff was negligent, if the jury should believe that defendant was negligent by either violating the traffic signal, or failed to keep a careful lookout, or failed to stop the bus, and that said negligence directly caused any damage defendant may have sustained.

Plaintiff’s complaint against Instruction No. 3A is that said instruction, being a converse instruction to plaintiff’s submission of primary negligence is erroneous because it completely ignores plaintiff’s humanitarian submission and directs a verdict “on plaintiff’s claim for damages” if the jury should find defendant not guilty of the primary negligence submitted by Instruction No. 3.

Defendant contends that the giving of Instruction No. 3A was not prejudicial error for the following reasons:

A. Plaintiff failed to prove a case of humanitarian negligence for failure to stop.
B. Since Instruction No. 3 hypothesized failure to stop as a ground for recovery, and Instruction No. 5 authorized a verdict solely on failure to stop, there could be no error in giving Instruction No. 3A because the primary negligence submitted includes within its ambit humanitarian failure to stop.
C. When plaintiff’s Instruction No. 4A, which was directed to the counterclaim and submitted defendant’s failure to stop as an act of contributory negligence, is considered with the fact that a verdict was returned for defendant on its counterclaim it is apparent that the jury did not believe defendant was negligent in failing to stop; hence the giving of Instruction No. 3A cannot be considered as prejudicial error.
D. That from the numbering of the instructions, it was apparent to the jury that 3A referred only to Instruction No. 3, and that the jury would consider that 3A merely authorized a finding against plaintiff under Instruction No. 3 instead of a verdict “on plaintiff’s claim for damages,” which, of course, included a claim submitted by humanitarian Instruction No. S.

Considering the evidence most favorable to plaintiff, as we must in determining whether a case was made under the humanitarian doctrine, we find the facts hereinafter stated. Plaintiff brought his automobile to a stop five or six feet east of the east curb line of Pine Street where he waited for the traffic light to change favorable for westbound traffic; that when the light changed to green he started forward intending to proceed through the intersection; that the bus was at that time 6 or 8 feet from the intersection; that when ⅛ reached the east curb line the doors of the bus were being closed and the bus had started to roll forward; that the bus driver, had he looked forward at that time could have seen plaintiff proceeding toward the path of the bus with increasing speed and observed the red light against northbound traffic; that there was evidence from which a jury could find that plaintiff was unaware of the bus driver’s intent to enter the intersection against the red light, and was therefore oblivious of the impending danger of collision, which fact would have been apparent to the bus driver; that the bus moved forward at a speed of about one mile an hour, at which speed it could have been stopped with safety to the driver and his passengers in less than one foot.

It is our view, on the evidence, and the inferences the jury could reasonably draw from it, that plaintiff made a case on humanitarian negligence. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482.

The general rule is that where plaintiff has submitted his case on both primary and humanitarian negligence, an instruction which directs a verdict for defendant and ignores plaintiff’s right to recover under the humanitarian theory is erroneous. Sauer v. Winkler, Mo., 263 S. W.2d 370; Wabash R. Co., v. Dannen Mills, Inc., 365 Mo. 827, 288 S.W.2d 926; MAI 29.01 general comment with respect to converse instructions.

In the case at bar, Instruction No. 3A was a converse instruction which directed the jury that if they found defendant was not guilty of the primary negligence submitted by plaintiff’s Instruction No. 3, their “verdict must be for defendant on plaintiff’s claim for damages.” By directing a “verdict” instead of authorizing a “finding” and ignoring the humanitarian submission under Instruction No. 5, which was a part of plaintiff’s claim, the instruction was clearly erroneous, under the above cited authorities. The direction of a verdict should have been eliminated, or it should have included the phrase “unless you find for plaintiff” under Instruction No. 5. Sauer v. Winkler, supra.

But defendant contends that since plaintiff hypothesized failure to stop as a basis of recovery under his primary submission, Instruction No. 3A was correct because defendant could not be found negligent under the humanitarian doctrine as submitted, if found free from negligence for failure to stop under Instruction No. 3.

We find no merit to the point made. Instruction No. 3A was a positive misdirection in that by its terms the jury was limited to a consideration of the issue of the primary negligence submitted, and directed a verdict if the proof was not sufficient to establish same. Then by Instruction No. 3B, the issue of plaintiff’s alleged contributory negligence was submitted as a complete defense to the charge of negligence submitted. If the jury chose to follow these two instructions they would consider themselves bound to return a verdict without regard to the humanitarian charge. If the jury considered all the instructions including No. 5, they would have a choice to ignore either No. 3 or No. 5, for said instructions were certainly conflicting. Both could not be followed. Thus a very confusing situation was created. Such ineptness as exhibited here should not be excused on the ground now advanced by defendant in this court. It would have been a simple matter to have drafted a proper instruction if defendant’s counsel had taken the care to read the general comment dealing with converse instructions set out in MAI 29.01. A litigant has the right to have the jury properly instructed. This is not a difficult task under the Missouri Approved Jury Instructions. Instructions should not be so worded as to be conflicting. Nor should words be used with the expectation that the jury will give them a meaning different from their accepted meaning, such as the use of the word, “verdict” instead of the word “finding” as was done in this case. It does not clearly appear that the jury found defendant was not negligent in failing to stop. It is just as reasonable to suppose that the defendant’s verdict was based upon plaintiff’s alleged contributory negligence. We -should not be expected to reach a conclusion on this vital aspect of the case through speculation and conjecture. Nor do we believe that the instructions were clarified by the system of numbering and lettering employed. The giving of Instruction No. 3A was error which must be classified as prejudicial.

Since the judgment must be reversed and the cause remanded for new trial because of error in giving Instruction No. 3A, we need not consider other errors assigned. Prior to another trial, counsel will have an opportunity to examine the matters complained of and take such action as will render any claim of errors unavailing.

The judgment is reversed and the cause is remanded.

RUDDY and WOLFE, JJ., concur.


author: DOERNER, Commissioner.

text:
    Nora JOHNSON, Plaintiff-Appellant, v. Virginia MURPHY, Defendant-Respondent.
    No. 32587.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 7, 1967.
    Application to Transfer Denied Sept. 11, 1967.

      Harris & Fortus, Norman A. Seiner, Clayton, for plaintiff-appellant.
    Evans & Dixon, Sam P. Rynearson, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is an action for damages for personal injuries incurred when plaintiff fell upon an icy walk on the premises of her employer. There was a verdict and judgment in favor of plaintiff in the sum of $3000, but the trial court sustained defendant’s motion for judgment in accordance with her motion for a directed verdict filed at the close of the evidence and plaintiff appealed.

The principal issue presented is whether the evidence, viewed in the light most favorable to the plaintiff, established a case properly submissible to the jury. Plaintiff forthrightly recognizes that in Everett v. Wallbrun, Mo.App., 273 S.W.2d 751, this court held that an employer was not liable for injuries to his employee suffered from a fall on a natural accumulation of ice resulting from a sleet storm general to the community. In reaching that conclusion we relied on two cases denying recovery where the falls involved were caused by the natural accumulation of snow and ice. Woodley v. Bush, Mo.App., 272 S.W.2d 833, that of a tenant on a common walk, and Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465, that of a pedestrian on a public sidewalk. We pointed out (273 S.W.2d 753) :

“The degree of care required being the same in the case of landlord, municipal corporation, invitor, and employer, it follows that the liability of one is no greater than that imposed upon the other. The hazards which all are required to protect against must be to some extent greater than those common to the general community, and for this reason the plaintiff failed to make a case properly submissible to the jury and the court should have directed a verdict for the defendant.”

Plaintiff first seeks to avoid the effect of our decision in Everett v. Wallbrun, supra, by contending that the condition of sleet and ice shown in the evidence was not a condition general throughout the community. On that score plaintiff herself testified that at about 11:00 A.M. on December 21, 1962, the day she fell, a Mrs. Margaret Huber, who lived in defendant’s home, told her that it was sleeting. Plaintiff stated that she looked out the window in the breakfast room and saw that it was “slightly sleeting,” a “real fine sleet,” as she described it. Plaintiff further testified that her son, who was not familiar with the location of defendant’s home, was to pick hep, up in his car, and that about 4:30 P.M. she looked out the front door and saw him drive by. She related that she went down the front walk, looking towards his car, and slipped and fell when she stepped down one step to a lower level of the walk. Plaintiff did not see the sleet or ice on the walk until after she had fallen, she explained, because she was looking towards her son. Plaintiff read into evidence portions of the defendant’s deposition, in which defendant related that about 3:00 P.M. of the same day she looked out her front door and saw that sleet or freezing rain was falling, and that it was “getting slippery out.” As a consequence, defendant stated, she left earlier than her usual time, to pick up her sons at school in her car. The most revealing evidence as to the weather and the general condition, however, was that given by plaintiff’s son, Herbert Lee, who had arranged to call for his mother in his car. His point of departure was not stated, but he did relate that at the time he drove to the defendant’s home the weather was very, very cold, that a “mist” or “something like a vapor” was falling, and that there was ice on the streets. He also said that when he located defendant’s house, after some difficulty because he had the wrong address, he observed the landings and walk on defendant’s property, and that “There were patches of ice, not completely iced up, but there was a piece here and maybe another piece here, (indicating). You could see it all around.”

We think the conclusion is inescapable from plaintiff’s own evidence that the slippery condition of defendant’s walk was a hazard common to the community in which defendant’s property was located, caused by the natural accumulation of ice as the result of the inclement weather which prevailed in the area. It follows that under the holding of this court in Everett v. Wall-brun, supra, plaintiff failed to make a case properly submissible to the jury and the court’s action in sustaining defendant’s motion for judgment in accordance with her motion for a directed verdict at the close of the evidence was correct and proper.

Plaintiff also asserts that our holding in Everett v. Wallbrun was wrong and urges us to reexamine it. We reviewed the underlying principle in the recent cases of Root v. Henry, Mo.App., 395 S.W.2d 280 and Loyd v. Levin, Mo.App., 413 S.W. 2d 540 and find no reason to change our opinion.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment is affirmed.

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


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Earl OSBORNE et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Robert F. Matthews, Atty. Gen., Frankfort, William A. Lamkin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Department of Highways, Somerset, for appellant.
    Grant F. Knuckles, Pineville, for appel-lees.
   MONTGOMERY, Judge.

Earl Osborne and wife were awarded $7,000 in damages in this condemnation proceeding for right of way for a portion of a new road from Pineville to Dorton’s Branch. The Department of Highways appeals and insists that the verdict is excessive.

Appellees owned a tract containing 6.64 acres of land located about one mile east of Pineville. This tract was bounded on the south and east by the existing road which ran east from Pineville alongside Straight Creek and turned at a right angle at appellees’ east property line. The old road then ran in a northerly direction with appellees’ east property line to and over the L. & N. Railroad right of way which formed the north boundary of the tract.

The property had been improved with a one-story brick residence, which was eight years old, and with a 24' x 39' frame barn. The house was serviced by a septic tank. The front of the house was about fifty feet from the railroad tracks. The east side was about thirty-three feet from the old road.

The right of way acquired consisted of 1.12 acres in fee simple, part of which was the old roadbed, and .07 acre for two temporary easements. The easements were taken for the purpose of constructing two approaches on opposite sides of the new road, providing access from the barn to the bottom land. The permanent right of way acquired was T-shaped, with the top of the T located along the east boundary of the property. The stem severed the land so that .62 acre on which the house and barn were located was on one side and five acres of bottom land were across the road. The only improvement taken was seventy feet of six-inch field tile used in connection with the septic tank.

The right of way line of the principal portion of the new road is situated about thirty feet from the rear of appellees’ residence, while the traveled portion of this part of the road is about sixty feet away.

Along the east property line the right of way line of the new approach is situated a distance of twenty-five to thirty feet from the east side of appellees’ dwelling, but the traveled portion of the road is no closer to the east side of the house than it was before the taking.

Two evaluation witnesses for appellant fixed the before value of the property at $18,000 and the average after value at $16,-450, for an average difference of $1,550. Four witnesses for the appellees fixed the average before value at $23,250 and the average after value at $11,875, for an average difference of $11,375.

Appellees sought to show that the suitability of the property for a pony farm or for truck gardening was lessened by reason of the severance. While there was testimony that appellees had grazed ponies in the past, there was no testimony that they were so engaged at the time of the taking or that they expected to do so in the future. On particular use, see Commonwealth, Department of Highways v. Priest, Ky., 387 S.W.2d 302. The two new approaches still render the barn and pasture accessible to each other. Photographs introduced in behalf of appellees indicate that no use was being made of the five-acre tract. It appears to have been covered by a weedy growth except for a wet spot.

It was suggested that the new road would create a drainage problem. The landowner testified that the property had been flooded by the waters of Straight Creek to a depth of one inch over the first floor of the house prior to the construction of the new road. Likewise, the nearness of the new road at the rear of the house could not have added greatly to the traffic noise when it is considered that the L. & N. Railroad tracks were within a short distance of the front of the house and the traveled portion of the reconstructed road on the east side of the house was no nearer than that of the old road.

The evidence introduced by appellees when viewed in the most favorable light shows that the conditions complained of for the most part existed before the taking and have been increased only slightly since the taking. The testimony of the witnesses for the appellees lacks the probative value to sustain the exaggerated difference in the before and after values. The award of $7,000 for taking 1.12 acres, the two easements, and seventy feet of field tile is at first blush excessive. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Roberts, Ky., 390 S.W.2d 155; Commonwealth, Department of Highways v. Holbrook, Ky., 390 S.W.2d 897; Commonwealth, Department of Highways v. Hayes, Ky., 394 S.W.2d 735; Commonwealth, Department of Highways v. Frazier, Ky., 404 S.W.2d 459. Other questions presented are reserved.

Judgment reversed.

All concur.