author: ANDERSON, Judge.

text:
    STATE of Missouri In the relation of INLAND FINANCE CORPORATION, Appellant-Relator, v. Hon. Frank FELDER, Magistrate, and Hartford Accident and Indemnity Company, Respondents.
    No. 31331.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Murray Steinberg and Herbert I. Fred-man, St. Louis, for appellant.
    Cook, Murphy & English, and Gerald J. Zafft, St. Louis, for respondents.
   ANDERSON, Judge.

This is a proceeding in certiorari brought by Inland Finance Corporation, as Relator, against Honorable Frank Felder, Magistrate for the City of St. Louis. The object of the suit was to have quashed an •order of Respondent dissolving a forthcoming bond executed by Daniel Sumrall •and James Sumrall in connection with an attachment suit brought against them by Inland Finance Corporation. Hartford Accident and Indemnity Company, surety on the bond, was also made a party respondent, and certain relief was prayed against it. Respondents filed a motion to dismiss on the grounds that Relator’s petition failed to state a claim upon which relief could be •granted, and that the relief sought was not properly cognizable in said action. The trial court sustained this motion and plaintiff has appealed.

The petition alleged that on or about February 24, 1960, Inland Finance Corporation filed suit against Daniel Sumrall and James B. Sumrall on a promissory note, being Cause No. 46402-C in the Magistrate Court of the City of St. Louis; that defendants in said suit were nonresidents of the State ■of Missouri and could not be found; that •during the month of November, 1961, at plaintiff’s request, a Writ of Attachment was issued against certain personal property of the defendants, and one or more Constables of the City of St. Louis seized and took possession, under the Writ, of certain personal property of the defendants.

It was further alleged that on or about November 13, 1961, defendants filed in said Magistrate Court a bond upon which Hartford Accident and Indemnity Company was surety, in which bond defendants indemnified plaintiff in the sum of $600.00, and by reason thereof, defendants thereafter secured redelivery of the property to them from the Constables. We construe the foregoing allegations to mean that a bond was given pursuant to the provisions of •Civil Rule 83.46, V.A.M.R.

The petition further alleged that on or about March 29, 1962, the case was assigned for trial before Magistrate Frank Felder, Respondent herein, who found in favor of Relator, Inland Finance Corporation and against defendant James B. Sum-rall, in the sum of $466.51, and in favor of said Inland Finance Corporation, and against the defendants on a counterclaim, which had been filed by defendants in said cause. It was further alleged that there was no appeal from the judgment and same became final on April 8, 1962; that on or about April 25, 1962, defendant Daniel Sumrall, filed a motion to dissolve the aforesaid bond; that a hearing was had on this motion on April 30, 1962, and on said date the Hon. Frank Felder entered an order dissolving the bond; that Magistrate Felder had no jurisdiction or power under the laws of the State of Missouri to enter said order and that the same was null and void.

The prayer of the petition was that a Writ of Certiorari issue to said Magistrate; that by an order of the Court he be required to show cause why the order of April 30, 1962, dissolving the bond, should not be held null and void; that Respondent Felder be required to enter an order rescinding his order of April 30, 1962; that Respondents be ordered to show cause why said bond should not be re-instated, and that Respondent Hartford Accident and Indemnity Company be ordered to show cause why it should not be held liable and to answer to execution on said bond.

In Bauer v. Rutter, Mo.App., 256 S.W.2d 294, loc. cit. 295, we held that:

“Magistrate courts are inferior courts of limited jurisdiction possessing only those powers which are expressly granted by statute. State ex rel. and to Use of Berra v. Sestric, 349 Mo. 182, 159 S.W.2d 786. No presumptions or inferences will be invoked to enlarge their jurisdiction and they cannot assume or take powers by implication. State ex rel. Gordon v. Hopkins, 87 Mo. 519.”

There is no provision in the Civil Code conferring jurisdiction upon Magistrate Courts to dissolve forthcoming bonds given by defendants in connection with attachment suits. Furthermore, under the allegations of the petition for the Writ, the order dissolving the bond was entered thirty-two days after the judgment was rendered. If said allegation is true, and we must assume that it is true in testing the sufficiency of the petition to state a cause of action, respondent Felder acted beyond his power and in excess of his jurisdiction in entering the order in question. He had lost jurisdiction to enter any orders in the case, except as to executions, orders of revival and set-offs of judgments under the provisions of Section 517.750 RSMo 1959, V.A.M.S.

Certiorari is the proper remedy, when the court to which it is directed has no jurisdiction, or acts in excess of its jurisdiction. State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 646.

In our opinion, the petition stated a cause of action in certiorari, and the trial court erred in sustaining Respondents’ motion to dismiss. The judgment appealed from is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

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


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    In the Matter of K. W. S., a Minor.
    No. 31462.
    St. Louis Court of Appeals. Missouri.
    Sept. 17,1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 14, 1963.

      Warmann & Scheiter, St. Louis, for appellant.
    Peter Ferrara, Robert Lee Campbell, St. Louis, Theodore C. Traeger, Clayton, for Guardian ad Litem.
   DOERNER, Commissioner.

This is an appeal by C. J. W. and D. L. W., his wife, from a judgment of the Juvenile Court of St. Louis County dismissing their petition for the transfer of custody and the eventual adoption of a minor.

The child involved in this proceeding, K. W. S., a boy, was born in lawful wedlock, to K. S. and M. K., his wife, on November 13, 1960. Domestic difficulties subsequently developed between the natural parents and they separated on February 16, 1961. The natural mother entered a hospital because of some mental illness, but the date of her admittance and the nature ■of her disturbance does not appear in the record. The natural father took the child to the home of his parents, the paternal grandparents of the child. However, the paternal grandparents had a second son, four years old, who required special schooling and attention because he was afflicted with cerebral palsy. Because of this the paternal grandmother found it impossible to care for the child, and it became necessary to place him elsewhere. The natural mother’s attorney, Mr. Peter Ferrara, advised the natural father’s attorney, Mr. Robert Lee Campbell, that the maternal grandparents did not want and could not take the child for personal reasons. Both attorneys contacted various child welfare agencies (including the St. Louis County Child Welfare Service) in an effort to obtain temporary care for the child, at the father’s expense. All declined to take the child unless relinquishments could be obtained from both parents, and as the natural mother was under treatment, that was impossible.

The petitioners, C. J. W. and D. L. W., his wife, are the parents of two children, W., a boy, and C., a girl, who at the time of the hearing of this cause on January 24, 1962, were 15 and 12 years of age, respectively. They wanted more children but were unable to have them because of an operation Mrs. W. had undergone. They had written to one child welfare agency about adopting a child, but the agency suggested that they serve, instead, as foster parents. Mrs. W’s sister-in-law, who was a neighbor of the paternal grandparents and aware of their inability to keep K. W. S., asked Mrs. W. if she would be willing to care for the baby. Mrs. W. said that she would, and agreed that the sister-in-law might give Mrs. W’s name and telephone number to the paternal grandmother. That was done, the paternal grandmother telephoned Mrs. W. the next day, and the petitioners thereupon called at the home of the paternal grandparents and saw the child. The grandmother’s situation was desperate and she asked Mr. and Mrs. C. J. W. how soon they could take the child. Mrs. W. wanted to do so immediately, but Mr. W. thought they should first obtain legal advice.

The petitioners thereupon consulted Mr. Richard Warmann, their attorney. Mr. Warmann advised them that they could “ * * * go ahead and take care of this baby * * From the testimony of Mr. Campbell the inference may be drawn that Mr. Warmann contacted either Mr. Campbell or Mr. Ferrara, or perhaps both, for Mr. Campbell and Mr. Ferrara discussed the question of the placement of the child with the petitioners. All of the attorneys were, of course, aware of Section 453.110, RSMo 1959, V.A.M.S., prohibiting the transfer of legal custody of a child without first obtaining the approval of the juvenile court. Mr. Campbell and Mr. Ferrara apparently agreed that the physical custody of the child could be given to the petitioners as merely “baby sitting” for the child, pending the execution of a relinquishment by the natural mother, which at that time they understood might be obtained in a matter of four or five weeks. On April 27, 1961, the petitioners went to the home of the paternal grandparents to obtain the child. It is apparent that the natural father was present, for Mr. Campbell testified that the father telephoned him while the petitioners were at the home, and that he and the father discussed the placement of the child with the petitioners. After talking to the father, Mr. Campbell also talked over the telephone to the petitioners and advised them that a transfer of the legal custody of the child could not be made, that the father could give them a consent to their adoption of the child but that they would have to treat themselves as baby sitting until such time as they were able to receive a consent from the natural mother; and that he could not guarantee them that they would ever obtain her consent. According to Mr. Campbell, immediately after these telephone conversations, “ * * * then K. S. (the natural father) did place the child directly with the W’s (the petitioners) in their home.”

While the petition itself is not in the transcript, the record indicates that some time in August, 1961, the petitioners filed their petition in the Juvenile Court praying for the transfer to them of the legal custody of K. W. S., and for his adoption after the expiration of the requisite period of nine months. As an exhibit thereto there was attached an instrument executed and acknowledged by K. S., the natural father* on July 27, 1961, in which he entered his. appearance in the proceeding, consented to any order or decree transferring legal custody of the child to petitioners, consented to any decree of adoption of the child by petitioners and to any change of name, and' waived the necessity of his consent to any future adoption of the child by petitioners. At this point the record as to what transpired is by no means as clear as it might be. As best we can make it out, the natural mother apparently was released from the hospital at some unspecified time after the petitioners’ original petition was filed. Presumably she learned that while she was in the hospital the natural father had placed the child in the temporary care of custodians, but she was not informed who such custodians were. She did learn, however, that the identity of the custodians was known to the father. Presumably, also, she was advised that the custodians desired to have the legal custody of the child transferred to them for the purpose of adoption, and to that end wanted her to execute the required relinquishment and consent. She refused to sign the necessary legal documents.

We gather from the record that conferences were then held between the natural' parents, their respective attorneys, and the court, which culminated in an agreement between the natural parents that the legal custody of the child would be transferred to the St. Louis County Child Welfare Services, so that the court could pass on the merits of plaintiffs’ petition. Pursuant thereto, on some date undisclosed by the record the natural parents filed a petition to transfer legal custody of the child to the State Department of Public Health and Welfare, Division of Welfare, St. Louis County Child Welfare Services, for the purpose of placing the child for adoption. This petition was treated by the court as a separate proceeding, and on January 23, 1961, the day before the hearing in this cause, the court approved their petition; granted permission to the natural parents to waive the necessity of their consent to the future adoption of the child; and approved the individual waivers executed by each of them.

Presumably the petitioners were cognizant of the impasse which developed when the natural mother refused to consent to their original petition, and apparently they were made aware of the agreement of the natural parents to transfer legal custody of the child to the St. Louis County Child Welfare Services. On November 16, 1961, seemingly after that agreement had been reached, the petitioners filed an amended petition in which they alleged that the natural mother would file a relinquishment of her parental rights before the hearing. The waiver and consent executed by the natural father on July 27, 1961, was also attached to their petition as an exhibit. On December 13, 1961, the court appointed Mr. Theodore C. Traeger, an attorney, as guardian ad litem for the child. The guardian ad litem entered his appearance on December 19, 1961, and filed an answer in which he alleged that he was without knowledge or information sufficient to form a belief as to the truth of the averments contained in plaintiffs’ petition and called for strict proof. Somewhere along the line the court directed the St. Louis County Child Welfare Services to make the investigation required by Section 453.070 RSMo 1959, V.A.M.S. The investigation was made by Mrs. Margarett Helms of that office, and a written report submitted to the court, but the report was not introduced in evidence and is not before us.

The petitioners’ evidence showed that they were married in Illinois in 1945, and that they owned their own home, a seven room house situated on a three acre tract, located in St. Louis County. C. J. W., the husband, had been employed by the same firm for about ten years and was earning $9600 per year. Both petitioners were active members of their church, and both were likewise active in various youth organizations. Petitioners’ evidence further showed that the child had required medical attention when he was first placed in their care, that they had nursed him through an illness, and that they had had him baptized. They testified to the love and affection which they and their children had developed for the child, and of their intention to care for, maintain, educate and give him religious training as fully as though he was their natural child. The pastor of their church and various other witnesses testified as to the love and care which petitioners had given the child, and to the suitability of the petitioners as adopting parents.

The position of the guardian ad litem at the hearing was that while the petitioners were excellent people and in another situation would probably be qualified as adopting parents, he did not recommend the approval of petitioners’ petition because he believed that the best interests of the child would be served by allowing the St. Louis County Child Welfare Services to place the child with a family where there could be no possibility of connection between the natural parents and the adopting parents. Mrs. Helms, of the Welfare Services, who was called as a witness by the guardian ad litem, testified in answer to questions by the court that the St. Louis County Child Welfare Services had made a study and evaluation, which had been filed with the court, and that it did not recommend legal placement with the petitioners because it felt that it was in the 'best interests of the child that he be placed other than with petitioners. Pressed on cross-examination for the reasons for such decision Mrs. Helms stated that part of the consideration was the feeling that the natural mother might some day learn the whereabouts of the child. Other reasons mentioned during the course of a lengthy answer were: the natural mother’s mental health; the feeling that the paternal grandparents rather then the natural father had placed the child; the immaturity of the-natural parents in making plans for the child; the repeated statements of the natural mother that she did not want the child placed where she would ever possibly learn of its whereabouts, as it was “their” feeling that the natural father might some day divulge the information to her or to some of her friends, “ * * * since, apparently, they run in the same social set * * * ”; and because of the difficulties which the petitioners were having with their own children, particularly their son, in school. Since the court did not refer to the latter subject in its findings, it is sufficient to say that it concerned the boy’s poor grades, and his negative attitude towards school and his studies. Mrs. Helms did express the opinion that because of that problem the petitioners might better devote more time to their son rather than take on the care of another child.

On redirect examination Mrs. Helms was asked whether, based on her experience, she felt that her agency could place the child in a home which would be as much to his welfare, if not more so, than the petitioners’ home, and replied that she did.

At the request of counsel for the petitioners the court dictated into the record a statement of the grounds for its decision. Among other matters it found that while the natural father had executed a consent to the transfer of legal custody to the petitioners and a waiver of consent to their adoption of the child, no similar consent had been filed on behalf of or on the part of the natural mother; and “that under Chapter 453 of the Revised Statutes of Missouri, a petition for transfer of custody for the purposes of adoption could not be achieved as pleaded in the original petition.” Its conclusions, as stated in full by the court, were as follows:

“It is the conclusion of the Court that the best interest and welfare of the minor child would not be served by granting the transfer of custody for the purposes of subsequent adoption by the petitioners for the reason that there is considerable knowledge concerning the background and the antecedents of said minor child by the petitioners and of the petitioners by one or both of the natural parents or relatives, and although their intentions are well-meaning there is always the possibility of some form of confrontation of a detrimental nature to the minor child. The petition fails for want of compliance with the applicable provisions of Chapter 453 R.S.Mo.1959, and on the merits for the reason that the welfare and best interests of the minor child would not be served by allowing the placement to continue with petitioners which was made without order of Court as provided by Section 453.110, R.S.Mo.1959.”

The court ordered and decreed that the petitioners’ petition be dismissed; that petitioners deliver the physical custody of the child to the St. Louis County Child Welfare Services; that the guardian ad litem be allowed a fee of $175 to be taxed as costs; that costs be assessed against petitioners; and that execution issue.

Petitioners’ initial point on appeal is that the court erred in concluding that, “The petition fails for want of compliance with the applicable provisions of Chapter 453 RSMo 1959 * * The only want of compliance which the court had in mind, judging by its findings of fact, was that the natural mother had not joined with the natural father in executing a consent to petitioners’ petition. It is true that ordinarily the written consent of both natural-parents to an adoption is required. Section 453.030(3) ; Hartwig v. Hartwig, Mo.App., 333 S.W.2d 101; In re Slaughter, Mo.. App, 290 S.W.2d 408. But Section 453.040 (Laws 1959, H.B. 438, Sec. 1) provides that, “The consent of the adoption of a child is not required of * * * (3) A parent of a child * * * who has waived the necessity of his or her consent to a future adoption of the child.” Here upon the petition of the natural parents the court had previously approved the transfer of legal custody of the child to St. Louis County Welfare Services, and had approved their separate waivers of consent to the future adoption of the child. The consent of the natural mother to plaintiffs’ petition (or of the natural father, for that matter) was therefor not required. It follows that even though plaintiffs’ petition was not supported by the consent thereto of the natural mother, it did not for that reason fail to comply with Chapter 453.

The petitioners next contend that the court erred in ruling that their petition failed, “ * * * on the merits for the reason that the welfare and best interest of the minor child would not be served by allowing the placement to continue with petitioners which was made without order of Court as provided by Section 453.110, R.S. Mo., 1959.” Petitioners interpret the court’s language to mean that it dismissed their petition in part because it found that the child had been placed with petitioners in violation of Section 453.110. We share that view. If only a general finding as to the child’s welfare had been intended, as the guardian ad litem argues, there would have been no point in referring to the alleged violation of the section.

Was the placement of the child with the petitioners by the natural father on April 27, 1961, made in violation of Section 453.110? The first subdivision of that section prohibits the transfer of custody of a child unless the approval of the court to such transfer is first obtained. As we stated in In the Matter of Baby Girl Smith, a Minor, Mo.App., 339 S.W.2d 490, 492, the obvious purpose of this subdivision of the statute “ * * * was to put an end to the indiscriminate transfer of children; the concept that a parent could pass them on like chattels to a new owner * * But the second subdivision of Section 453.110 provides that, “This section shall not be construed to prohibit the placing of a child in a family home for care by any parent * * * if the right to supervise the care of the child and to resume custody thereof is retained. * * * ”

The evidence regarding the placement of the child with the petitioners by the natural father on April 27, 1961, has been set forth at length. We agree with petitioners that the overwhelming weight of such evidence is that when the placement was made all concerned, including petitioners, understood and agreed it was only for the purpose of temporary care. The court’s finding that the placement was made in violation of Section 453.110 is not supported by the evidence.

The third ground stated by the court for its decision was that the best interest and welfare of the child would not be served by granting the transfer of custody to petitioners for the purpose of subsequent adoption “ * * * for the reason that there is considerable knowledge concerning the background and the antecedents of said minor child by the petitioners and of the petitioners by one or both of the natural parents or relatives, and although their intentions are well-meaning there is always the possibility of some form of confrontation of a detrimental nature to the minor child. * * * ” The word “confront” connotes the element of hostility or opposition. In view of the context in which it used the term “confrontation,” it would seem that the court had in mind the likelihood of a hostile meeting and subsequent controversy between one or both of the natural parents and the petitioners over the custody of the child.

Petitioners argue that as a matter of law there is no legal authority for the court to consider what the court referred to as “confrontation.” With that contention we cannot agree. Counsel state that they have been unable to find any case involving the legal custody or adoption of a child in which that factor was discussed, nor have we. But the general rule, unanimously recognized by all courts and conceded by petitioners, is that in a proceedings of this nature the welfare of the child is the chief concern of the court, and is paramount over all other considerations. In re McDuffee, Mo., 352 S.W.2d 23; Child Sav. Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068; State ex rel. M. L. H. v. Carroll, Mo.App., 343 S.W.2d 622; In re McAvoy’s Adoption, 237 Mo.App. 1099, 173 S.W.2d 108. It is “* * * the guiding star in proceedings of this character * * Child Sav. Institute v. Knobel, supra, 1. c. 927, and it “ * * * frequently requires consideration of many factors * * In re McDuffee, supra, 1. c. 27. Thus in considering the welfare of the child the court may take into account not only the moral character and financial ability of the adopting parents but such other factors as the age, intelligence, health and temperament of the petitioners as well as the age, sex, health, temperament and other qualities of the child. State ex rel. St. Louis Children’s Aid Soc. v. Hughes, 352 Mo. 384, 177 S.W.2d 474; In the matter of Baby Girl Smith, Mo.App., 339 S.W.2d 490. Or the nature of the petitioners’ home and its surroundings. In re Greenwood, Mo.App., 288 S.W.2d 413. Or the effect on the child of separating her from her little brother. Child Sav. Institute v. Knobel, supra. Or the future, embarrassment which a child might suffer from living in the same city with a natural father who repeatedly misconducted himself. In re Greenwood, supra. Those and other cases demonstrate that the welfare of the child may be affected by numerous factors, for as stated in In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360, 366: “ * * * no two adoption proceedings are presented in the same factual mold; * * In short, whatever may affect the child’s welfare, whether beneficially or detrimentally, may be considered by the court in ruling upon a petition for adoption.

Petitioners next argue that the court’s finding that there was a possibility of some form of confrontation which might be detrimental to the welfare of the child was speculative and conjectural, and unsupported by the evidence. Of course, there was no positive evidence that confrontation would inevitably occur, or that it would result in controversy. How could there be, when the court was considering future possibilities? In that sense, of course, the court’s finding was conjectural. But in any proceeding where the welfare of the child is involved the court must seek to peer into the future, to make a projection based upon the facts then before it, and to render a decision accordingly. Here the undisputed evidence showed that the petitioners knew the identities of both of the natural parents, and of the paternal grandparents. The sister-in-law of Mrs. W., a neighbor of the paternal grandparents, possessed the same knowledge regarding the petitioners, the child, the natural parents, and the paternal grandparents. The natural father knew who the petitioners were and the whereabouts of the child. So did his parents, the paternal grandparents. The natural mother apparently did not know who had physical custody of the child, but she did know the natural father had placed the infant in the care of the individuals known to him. Human nature being what it is, the greater the number of people who share a secret, the less the likelihood that the information will remain in that category. Instances in which a natural parent has suffered a change of mind after the transfer of a child, and has sought to regain its custody, resulting in litigation, are not unknown. In re Mayernik, Mo., 292 S.W.2d 562; In re G. K. D., Mo.App., 332 S.W.2d 62; Adoption of McKinzie, Mo. App., 275 S.W.2d 365; Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68. The detrimental effect on a child who is made the subject of a legal tug-of-war between his natural and his adopting parents would seem obvious. In view of the circumstances existing in this case we are of the opinion that the court was justified in finding that some form of confrontation detrimental to the welfare of the child might occur.

There were other aspects of the situation which the court undoubtedly took into account in denying plaintiffs’ petition. We refer to the opposition of the natural mother to plaintiffs’ adoption of the child, to her wishes that the child be placed where nei-tlier she nor anyone related to the child would know of his whereabouts, and particularly to the state of the natural mother’s mental health. While the nature of her disturbance does not appear in the record, (other than the statement of Mrs. Helms that it was environmental and not hereditary) it apparently was sufficiently serious to require treatment in a hospital for a substantial period of time. We also note that in giving the reasons why the St. Louis County Child Welfare Service did not recommend the petitioners as suitable for the placement of the child Mrs. Helms referred to “the mother’s mental health,” from which it would appear that the mother’s recovery was not complete at the time of the hearing of this proceeding. Whether there was any more direct correlation between the question of confrontation and the state of the mother’s mental health does not appear, but the court was entitled to and doubtless did consider all of the factors mentioned.

Counsel for petitioners vigorously argue that by certain remarks the court indicated an inflexible policy of deferring in all instances to the wishes and recommendations of the St. Louis County Child Welfare Services; that the court also indicated a settled policy of refusing to approve private placements of children for adoption; and that by the latter policy the petitioners were denied rights guaranteed them by the Fourteenth Amendment to the Federal Constitution and Article I, Section 10 of our State Constitution, V.A.M.S. The fallacy in counsel’s contention is that the remarks do not reveal any abnegation by the court in favor of the Child Welfare Services, nor an established policy to deny any and all adoptions involving private placements.

Petitioners’ own evidence established that when they first obtained physical custody of the child it was solely for the purpose of temporary care, and that they were advised they might never be able to adopt him. Despite that admonition, it is apparently difficult for petitioners to now understand why they should not be allowed to do so. One may appreciate and sympathize with their feelings. As they point out, they accepted the care of the child when he was unwanted elsewhere; they gave him the love and attention which every child needs; and, as they state, they have undoubtedly developed as deep an affection for him as though he was one of their own. Although all parties concerned, and the court, made it clear that no question of petitioners’ personal fitness was in issue, they may, consciously or unconsciously, regard the denial of their petition as a reflection upon their fitness as adopting parents. If so, they should dismiss that thought from their minds. As we have tried to point out, the primary and paramount consideration was the welfare of the child, the wishes of the natural parents and of the petitioners being secondary and subservient thereto. In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360; In re G. K. D., Mo.App., 332 S.W.2d 62; Adoption of McKinzie, Mo.App., 275 S.W.2d 365. It was the obligation and duty of the court to decide what was in the best interests of the child, and in passing upon that question the court is afforded a wide discretion, which must not, of course, be abused. Section 453.070; State ex rel. St. Louis Children’s Aid Soc. v. Hughes, 352 Mo. 384, 177 S.W.2d 474. We may not set aside a judgment unless it is clearly erroneous. Civil Rule 73.01(d), V.A.M.R. Petitioners have not shown that the court’s judgment was clearly erroneous, or that the court abused its judicial discretion.

The judgment should therefore be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, Commissioner, is adopted as the opinion of the Court.

The judgment is accordingly affirmed.

RUDDY, P. J., WOLFE, J., and WILLIAM M. KIMBERLIN, Special Judge, concur.


author: WOLFE, Acting Presiding Judge.

text:
    Paul BOREN, (Plaintiff) Respondent, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, (Defendant) Appellant.
    No. 31333.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 14, 1963.
    Roberts & Roberts, J. Richard Roberts, Farmington, for appellant.
    Schnapp & Cooper, Fredericktown, Jackson, Thomasson & Dickerson, Cape Girar-deau, for respondent.
   WOLFE, Acting Presiding Judge.

This is an action to recover from the defendant insurance company a fire loss that occurred when the plaintiff’s insured vehicle ran off the road and burned. The trial was to the court. There was a finding and judgment for the plaintiff in the sum of $7,500, and the defendant appealed.

There is no dispute about the following facts. The plaintiff was engaged in the “wrecker and garage” business at LaMotte, Missouri. His truck, which is the vehicle here in question, was a' tow truck described by the plaintiff as an “F-800, overhead valve with a five-speed transmission, two-speed axle, straight air brakes, * * *. It had a Tulsa drag winch. It had a W-45 Holmes split boom wrecker hoist with all the necessary clearance lights, stop lights, backup lights, and red lights.”

The plaintiff, who was a mechanic and welder, had assembled the truck and its component parts, such as the hoist winches and rigging. For the truck portion he had purchased two identical trucks and disassembled them. He had cut the frame of one truck off at the cab and joined the portion of the frame which he had cut off to the frame of the other truck to give it added length. He welded this additional frame on and put a quarter-inch plate along it to give it strength. He had also rebuilt the motor of the truck. The vehicle was capable of hoisting and dragging a trailer-tractor wreck.

At the time the car ran off the road and burned, it had been in use as a wrecker for about eighteen months. The accident occurred on November 28, 1960. The truck had been traveling downgrade for some distance, with a frequent use of the air brakes. The air pressure went down and the plaintiff’s efforts to brake the truck with the motor by throwing it in gear resulted in putting the motor in neutral. With neither brakes nor motor to slow it, the truck speed-ed downgrade, left the road, hit some trees, and burned. The cab was completely burned out, the large front tires were ruined, and a tree by the side of the truck burned. All of the mechanism that operated the hoist and drag lines was close to the back of the cab, which was warped and twisted by the fire.

The defendant had insured the wrecker for $10,000. There is no dispute about the insurance being in force. Only one point is raised on this appeal, and that is as follows :

“The verdict of the trial court is excessive and the amount thereof is not supported by the evidence since there is no valid evidence that the vehicle in question could not be repaired for less than $7,500.00.”

The evidence offered on behalf of the plaintiff as to the loss sustained consisted, in part, of the testimony of the plaintiff. He had been in the garage business for eight years, working with various metals, and for some time before that he had been so engaged. He said that the truck itself and the wrecker mechanism were wrecked and burned. He said that the heat had been so intense that the light bulb on the highest part behind the cab melted, and that the control bars were bent. He said that the value of the truck prior to the fire was $10,000, and that thereafter it was worth only $2,500. He said that the heat of the fire affected the metal parts of the wrecker. He also stated that to be serviceable, every part had to be in reliable operation.. He also said that the operation of a wrecker was hazardous. Illustrating this statement he said that a failure in any part might cause the wrecker to drop a car that it was lifting, and that if people were pinned under the car, such an occurrence would probably prove fatal to them.

A machinist who had been engaged in the business for over forty years and operated his own machine shop also testified. He had done work for many large corporations operating in the general area of his place of business. His work had consisted of dismantling, repairing, and reassembling many kinds of machinery. He examined the wrecker at the request of the plaintiff. He said that the hoisting mechanism looked like it had been very hot, and from his examination the heat had been sufficient to anneal some of the metal parts. He concluded that it would cost at least $5,000 to repair the hoisting and dragging mechanism, exclusive of any other damage. He did not consider the wrecker worth repairing.

A witness who had for the past six years operated his own machine shop and who had been before that employed as a machinist by the National Lead Company testified that he had examined the wrecker thoroughly and concluded that the heat of the fire weakened the wrecker so that it would have to be replaced with new parts.

Another witness ran a service station and salvage operation. He had worked with wreckers for about twenty years, and had been Batallion Motor Sergeant in World War II and Transportation Sergeant in the Korean action. He had been in charge of many sorts of heavy equipment, including wreckers. He was familiar with the wrecker here in question and had operated it. He said that it was worth at least $8,500 before the fire, and not worth more than $250 after the fire.

Photographs offered in evidence by the plaintiff showed part of the wrecking equipment blackened by fire,, and the truck itself appeared to be badly burned.

The defendant called to the stand a witness who worked for Automobile Damage Appraisers. He had examined the wreck and he said that he did not believe there was any damage to the split boom. He said that it did not look like the fire got that far back. He concluded that the winch and gear box close to the burning cab had not been damaged. He reached this conclusion because he found the cables still had grease on them, and that there was oil in the gear box. He said that he thought $2,500 would “put it back road ready”.

The service manager of Harris Truck and Trailer Sales testified for the defendant. The company for which he worked had the tractor on their lot. He said that he had examined it and that the truck part would have to be replaced. He also said that the wrecker portion, consisting of the boom, power take-off, etc.,, was not hurt by the fire. He stated that paint was still on them, and that heat sufficient to affect the metal would have burned the paint off. He also testified that he found oil in the gear box, and concluded that the gears had not been hot enough to damage them. He said that his company would replace the truck with one of like make and model, and move the hoisting and drag equipment to it for $1,795.

The policy provides:

“The limit of the company’s liability for loss shall not exceed either (1) the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss or (2) what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, or (3) the applicable limit of liability stated in the declarations.
“The company may pay for the loss in money or may repair or replace the automobile or such part thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, or may take all or such part of the automobile at the agreed or appraised value but there shall be no abandonment to the company.”

In the words of the appellant, it is contended that by the above terms, “the measure of damages to be applied in this case would be the lesser of the following:

“(1) The difference in the actual cash value of Plaintiff’s vehicle immediately before and its value immediately after the collision and fire;
“(2) The cost of repairing or replacing the Plaintiff’s vehicle;
“(3) The limit of liability stated in the declarations of the policy (in this case $10,000.00).
“Thus, before the difference in before and after value becomes the amount of the Company’s obligation it must be determined that this amount is the lesser of the three possible measures of damages. Clearly, this amount is less than the stated value of $10,000.00 and thus the only issue is whether the difference in before and after value is less than the cost of repairs or replacement with like kind and quality.”

This contention is quite at variance with Section 379.150, RSMo 1949, V.A.M.S., which states:

“Whenever there is a partial destruction or damage to property covered by insurance, it shall be the duty of the party writing the policies to pay the assured a sum of money equal to the damage done to the property, or repair .the same to the extent of such damage, not exceeding the amount written in the policy, so that said property shall he in as good condition as before the fire, at the option of the insured(Emphasis ours.)

This statute prevails over the policy, and under it the insurer has the option to allow the assured to repair,, or to claim a sum of money equal to, the damage to the vehicle. The amount of such sum is fixed by the difference between its value before the fire and immediately thereafter. Non-Royalty Shoe Co. v. Phoenix Assur. Co., 277 Mo. 399, 210 S.W. 37; Scism v. Home Ins. Co. of New York, Mo.App., 224 S.W. 48; Offutt v. National Fire Ins. Co. of Hartford, Conn., Mo.App., 273 S.W. 161; Branigan v. Jefferson Mutual Fire Ins. Co., 102 Mo.App. 70, 76 S.W. 643.

The defendant relies upon statements in the case of Boecker v. Aetna Casualty and Surety Co., Mo.App., 281 S.W.2d, 561, and Watkins v. Motors Insurance Corporation, Mo.App., 271 S.W.2d 584. But neither of these cases dealt with the statute here under consideration, and in neither case was there any proof of the value before and after the damage to the cars in question. The case, however, upon which the defendant chiefly relies is Williams v. Farm Bureau Mutual Ins. Co. of Missouri, Mo.App., 299 S.W.2d 587. In that case the terms of the policy were held to control, but it was pointed out that the defendant was a mutual insurance company, and not under Section 379.150, above quoted. Mutual companies are exempt from that section and certain other sections by virtue of Section 379.310, RSMo, which was first enacted in 1919.

We are obliged to try the case de novo on appeal, but in doing so, we defer to the findings of the trial court where there is a conflict of evidence and the determination of the case must depend on where the truth rests. There was a wide variance between the testimony of the plaintiff’s witnesses and those of the defendant. The testimony was directed,, for the most part, to the question of whether or not the hoist and drag mechanism had been damaged by the fire. As set out above, the evidence substantiates the plaintiff’s claim that the mechanism was damaged. The value of the whole truck before and immediately after the fire was also fixed by experienced witnesses. It therefore appears that the appellant’s point is without merit.

The judgment is affirmed.

ANDERSON, J., and JACK P. PRITCHARD, Special Judge, concur.

RUDDY, J., not participating.


author: WILLIAM M. KIMBERLIN, Special Judge.

text:
    In the Matter of the ESTATE of Floyd Ruben GROOMS, Deceased. Edward B. GROOMS, (Movant) Appellant, v. Maxine GROOMS, Administratrix of the Estate of Floyd Ruben Grooms, Deceased, Respondent.
    No. 31409.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      William L. Panned, Panned & Hess, Festus, for appellant.
    Harry L. C. Weier, Dearing, Richeson & Weier, Hillsboro, for respondent.
   WILLIAM M. KIMBERLIN, Special Judge.

This is an appeal from a judgment of the Circuit Court of Jefferson County, Missouri, wherein that Court set aside the order of the Probate Court of Jefferson County, Missouri, sustaining a motion of Edward B. Grooms, movant-appellant, to correct the Probate Court’s record concerning the filing of a duplicate copy of petition and executed copy of summons.

The basic facts are not in dispute and the Court will state only sufficient facts to present the issues involved.

Edward B. Grooms, movant-appellant, on April 17, 1958, was riding as a passenger in an automobile being driven by Floyd Ruben Grooms when this automobile was involved in a collision with another automobile. Floyd Ruben Grooms was killed in the collision. Edward B. Grooms, on July 6th, 1959, filed a personal injury suit against Maxine Grooms, as administratrix of the Estate of Floyd Ruben Grooms, deceased, et al. Maxine Grooms previously had been appointed administratrix of the Estate of Floyd Ruben Grooms, Deceased, on January 2nd, 1959. Publication of Letters of her appointment was duly made, the first publication being made on February 5, 1959. A copy of the petition and summons was served on Maxine Grooms, as Administratrix. The other defendants were served likewise.

Additional facts were agreed to by the parties as follows:

“That no record of the filing of the petition with duplicate copy of the summons showing service on the said Administratrix, can be found in the Probate Court file No. 1836, being the file of the estate of Floyd Ruben Grooms, deceased, nor is there any record of such filing in the official Minute Book of the Probate Court of Jefferson County, nor does a record of such filing appear in any other record of said Court.
“That because no written memorandum exists showing or indicating filing of the said petition and copy of said summons in any record of the Probate Court of Jefferson County, the appellant herein would object to the testimony of the said W. L. Pan-nell as outlined in Paragraph 5 hereof.
“That if W. L. Pannell, attorney for movant, were allowed to testify, his testimony would be that on or about ■August 20, 1959, a copy of the petition and' á copy of the summons showing service on the defendant, Maxine Grooms, Administratrix, referred to hereinabove, were filed in the Probate Court of Jefferson County, Missouri, by handing a copy thereof to Mrs. Revia Peppers, Clerk of the said Court at said time, at her Office in Hillsboro, Missouri.”

The failure to give notice of the institution of the suit against the Administratrix by filing notice in the Probate Court within nine months from the date of the first published notice of letters was raised by Maxine Grooms, Respondent herein. She filed a motion to dismiss the petition in the personal injury suit for the reason the cause of action was barred under Section 473.360 V.A.M.S., Laws of 1957. Cases interpreting this and other sections pertaining to non-claim statutes are North v. Hawkinson, Mo., 324 S.W.2d 733;. Clarke v. Organ, Mo., En Banc, 329 S.W.2d 670; Smith v. Maynard, Mo., En Banc, 339 S.W. 2d 737.

Thereafter Edward B. Grooms filed a motion in the Probate Court of Jefferson County, Missouri, to correct the Probate Court record and to establish as a matter of record the filing of a copy of the petition and duplicate copy of the summons attached thereto in said Court on or about August 20th, 1959. The Judge of the Probate Court on January 19th, 1962, sustained this motion to correct the record. It was ordered, adjudged and decreed that the record of the Court be corrected to show that a duplicate copy of the petition and executed copy of the summons was filed in said Court on August 20th, 1959.

Thereafter an appeal was duly perfected to the Circuit Court of Jefferson County, Missouri, and an agreed statement of facts substantially as set forth herein was submitted to the Honorable Edward T. Ever-sole, Circuit Judge of Jefferson County, Missouri, who set aside the order of the Probate Court and directed said Court to remove the copy of the petition and executed copy of the summons from the file and further ordered the entry of filing on August 20th, 1959, be stricken from the record of the Probate Court. The Movant, Edward B. Grooms, appealed from said judgment to this Court.

The ultimate issue to be decided by this Court is the validity of the nunc pro tunc order of the Probate Court of Jefferson County, Missouri, entered January 19th, 1962. This depends upon whether there was adequate and sufficient evidence before the Probate Court to support the entry. As it was agreed in the stipulation of facts filed in the Circuit Court there was no record of the filing of the petition and copy of summons showing service on the Administratrix in the Probate Court file of the Floyd Ruben Grooms Estate. Nor is there any record of such filing in the official minute book of the Probate Court nor does any record or written memorandum appear of the filing in any other record of the Court. The sole and only evidence to support this nunc pro tunc order was the oral testimony of Mr. W. L. Panned, attorney for Movant, to which an objection was lodged, to the effect that he handed a copy of these instruments to Mrs. Revia Peppers, Clerk of the Probate Court of Jefferson County, Missouri. Is this adequate and sufficient evidence to support the order? It is the view of this Court, based upon the prevailing law of Missouri, that it is not.

It is settled law in Missouri that nunc pro tunc entries cannot be predicated solely on parol evidence. This well established principle has been announced a number of times in both the Supreme Court and the Court of Appeals of this State. State v. Kitchin, Mo., 282 S.W.2d 1; State v. Libby, 203 Mo. 596, 102 S.W. 641, 642;. Burton v. Burton, 288 Mo. 531, 232 S.W. 476, 477; Doerschuk v. Locke et al., 330 Mo. 819, 51 S.W .2d 62. This Court has announced this principle in two cases of rather recent origin. In the case of Wegman et al. v. Fendelman et al., Mo.App., 333 S.W.2d 290, it was .held that parol evidence cannot be considered in ruling upon a motion to correct a record nunc pro tunc. There must be some record, either in the minutes of the Judge, ■ the Clerk’s entries or in some paper in the cause authorizing the correction.

The other case, Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675, reiterates and approves this same legal axiom; and states in the opinion, at 1. c. 682, as follows:

“We have shown that before a judgment may be corrected nunc pro tunc there must be some record either in the minutes of the judge, the clerk’s entries, or in some paper in the cause authorizing the correction. An order nunc pro tunc cannot be based upon the judge’s recollection of what took place or upon parol evidence. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, 126 A.L.R. 949; Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62; Clancy v. Herman C. G. Luyties Realty Co., 321 Mo. 282, 10 S.W.2d 914; E. C. Robinson Lumber Co. v. Hazel, Mo. App., 271 S.W.2d 610.”

Movant-appellant in his brief seems to recognize this well established doctrine, but contends it is against the majority rule as followed by our 'sister states and also that it denies substantial justice. A similar argument was advanced in the Wegman case, supra, but it was ably answered by this Court, saying at 333 S.W.2d 1. c. 296:

“Counsel for defendants’ arguments are able, but they have been advanced in one form or another in earlier cases. The rule in this state is contrary to their contention, and has been so for a considerable time, as defendants themselves admit in their brief. Regardless of the merit of these arguments, this is not the proper forum for their advancement. The Supreme Court of this state has held to the contrary, Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62, and the decisions of that court are binding upon us.
' Constitution of Missouri, 1945, art. V, Sec. 2. It follows that parol evidence cannot he considered in determining • whether or not this record may be corrected by a nunc pro tunc proceeding.”

The Missouri law is clear, concise and well established that parol evidence, standing alone, is not adequate and sufficient to support a nunc pro tunc order and we feel it is unnecessary to prolong this opinion by further explanation. In the case at bar the sole and only evidence before the Probate Court of Jefferson County, Missouri, upon which that Court could predicate its nunc pro tunc entry of January 19th, 1962, was the oral testimony of Mr. W. L. Pan-nell to the effect that he had handed a copy of these instruments to the Probate Clerk. The order was clearly erroneous and invalid. The judgment of the Circuit Court of Jefferson County, Missouri, was correct and proper in setting it aside.

Therefore, the judgment of the Circuit Court should be and is hereby affirmed.

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


text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Appellant, v. Margaret M. Gallagher HACKETT et al. on Exceptions of Sam Trapino and Jean Trapino, (Defendants) Respondents.
    No. 31519.
    St Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      Robert L. Hyder, Melvin Englehart, Jefferson City, for appellant.
    Blumenfeld, Abrams & Daniel, Selden Blumenfeld, Robert T. Johnson, St. Louis, for respondents.
   WOLFE, Acting Presiding Judge.

This is an action condemning land for highway purposes. Part of the land so condemned was the property of defendants Sam Trapino and his wife Jean Trapino. The commissioners appointed by the court assessed the damages due these defendants at the sum of $75,000. These defendants filed exceptions to the award of the commissioners, and upon trial by jury there was a verdict for the defendants in the sum of $79,500. From the judgment upon that verdict, the plaintiff Highway Commission prosecutes this appeal.

The land in question consisted of five lots in Block 5741 of the City of St. Louis. It fronted for 164 feet along the north side of Bircher Boulevard. It had an approximate depth of 110 feet to an alley. On the tract was a building with a frontage of 42 feet on Bircher and was 42 feet in depth. It was an L-shaped building, with a width in the rear of 65 feet. The structure was of concrete blocks with a brick facing.

The building had been erected in 1949, and was designed to be used as a cocktail lounge and restaurant. It had been so used by the defendants since its construction. The first floor contained a diningroom, bar, and kitchen, and there was another dining area in the rathskeller in the basement. The building was air-conditioned by a 15-ton air conditioner located in the basement. The building also had the fixtures that would ordinarily be found in a well equipped and operated restaurant and cocktail lounge.

The petition for condemnation of this and other property for highway purposes was filed April 11, 1958. On June 24, 1958, three commissioners were appointed to appraise all of the land condemned. On July 25, 1958, they filed their report, and as to the property in question here they assessed the sum of $75,000 net damages for its appropriation. The Highway Commission filed exceptions to the assessment of damages on August 1, 1958, and defendants Sam and Jean Trapino also filed exceptions on August 4, 1958. On August 21, 1958, the Highway Commission paid the $75,000 awarded by the commissioners into court. The court made an order of distribution of the sum deposited. Others having an interest in the property were paid a total of $29,249.83, and the defendants herein withdrew the balance of $45,750.17.

In August the defendants removed a 15-ton air conditioner from the basement. The bar and back bar, with its refrigeration units, sink, and other parts attached to it, were also removed by them. They took two built-in, walk-in coolers and sundry other fixtures from the property. All of these, according to the evidence of the defendants, were of the value of $6,375. The plaintiff’s evidence was that they were of the value of $5,500.

One witness for the Trapinos testified that the land and buildings, exclusive of fixtures, were worth $73,500. Another witness for them placed the value between $80,000 and $85,000, including all of the fixtures. The Highway Commission put on two expert witnesses. One testified that the value of the land, including the fixtures, was $62,500. The other testified that the value, less the fixtures, was $55,-900.

The property owners also put in evidence photographs showing the interior of the building, with the fixtures, which were later removed, all in place.

The appealing Highway Commission assigns as error a verdict-directing instruction offered by the defendants and given by the cpurt. It-directed the jury to find the amount of damages due the defendant in a sum equal to the fair market value of the land, building, and fixtures and equipment in it, as of July 25, 1958. The date used was the day the commissioners filed their award.

The Highway Commission requested an instruction directing the jury that they should not consider as an item of damages the value of the fixtures that the Trapinos had removed, but this was refused by the court. The plaintiff Highway Commission contends that the refusal of this instruction was also erroneous.

The respondents assert that the court was right in both respects, contending that the damages must be fixed as of the day of taking the property, which they fix as July 25, 1958, the date the commissioners’ report was filed. They assert:

“The removal by defendants of the disputed fixtures may have been without legal right and cannot be condoned but it does not follow that such removal can form the basis for a set-off in defendants’ damages where it was not pleaded or proven by plaintiff in the trial court. Plaintiff must proceed, if at all, by way of an action in replevin or conversion but cannot urge these remedies upon this Court in the form of an appeal from a condemnation proceeding.”

The plaintiff may of course appeal from any judgment determining issues properly tried below. The basic issue present was the damage that Trapinos, as defendants, suffered by the taking, as all liens held by other defendants were fully satisfied and it is conceded that the property was worth far in excess of the amount the lien-holding defendants were paid.

The controlling law as to the award and the taking is fixed by Article 1, § 26, Constitution of Missouri, V.A.M.S. It provides that “property shall not be taken or damaged for public use without just compensation.” “Just compensation” would be the value of the property taken by the state. The day that it is taken is also fixed by Article 1, § 26, which states: “ * * * until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.”

It is obvious, therefore, that the day of the taking is the day the money is paid into court. In this case that would be August 21, 1958, and not July 25, 1958. City of St. Louis v. International Harvester Company, Mo.Sup., 350 S.W.2d 782.

As to the manner of arriving at what constitutes “just compensation”, the Supreme Court enacted Rule 86.06, V.A.M.R., which provided that the value of the property condemned should be assessed as of the date the condemnation petition was filed. It made an additional provision that if the award was not paid into court within one year, a new assessment should be made. This rule was in effect at the time the case here under consideration was tried. Under the rule the property should not have been assessed as of July 25, the date of the commissioners’ report, but as of April 11, the date the petition in condemnation was filed. The above rule has been amended, but the amendment was not effective until November 1, 1961, which was after the trial here in question. Union Electric Company v. Stahlschmidt, Mo.Sup., 365 S.W.2d 493.

The only reason that the day of the taking assumes any importance here is because of the insistence of the defendants that it occurred on July 25, when the commissioners’ report was filed and the fixtures were in place. As stated above, the date that the property passed to the State was August 21, when it paid the commissioners’ award into court, and not July 25. The evidence is that the fixtures were removed in August. The exact date in August was hot fixed, but there was evidence that it took two weeks for the defendants to move out of the building, and that space of time could not have been after the 21st and still have been in the month of August.

In condemnation cases where there have been exceptions filed, the question of damages is tried de novo by a jury. The procedure followed is “as in ordinary cases of inquiry of damages.” Section 523.050 (2), R.S.Mo.1949, V.A.M.S. Thus we must apply the rules of procedure in this case which are applicable to any ordinary civil suit. State ex rel. State Highway Commission v. Green, Mo.Sup., 305 S.W.2d 688, 1. c. 694.

There is no doubt that the state was entitled to the fixtures taken by the defendants, and there is no contention to the contrary. State ex rel. State Highway ■Commission v. Dockery, Mo.Sup., 300 S. W.2d 444; City of St. Louis v. St. Louis, I. M. & S. Ry. Co., Mo.Sup., 182 S.W. 750. The defendants were only entitled to just ■compensation. More than the value of the property would be an unjust enrichment of the defendants.

The facts were all before the jury. The defendants’ counsel mentioned the removal of the fixtures in his opening statement. The defendants introduced evidence of the value of the fixtures in the building, and for some reason, which is not quite clear, the value of the fixtures after they were removed. In the defendants’ closing argument the counsel suggested to the jury that they might give the plaintiff credit for the value of the fixtures after they were removed, placing that figure at $2,-115. Obviously, that is not the measure of the fixtures’ value, for they went with the real estate, and their value was as fixtures in the building. Upon their removal, the diminished value of the building should be measured by the same yardstick. City of St. Louis v. St. Louis, I. M. & S. Ry. Co., supra. The plaintiff also put in evidence as to the value of the fixtures. Thus, from the very start of the trial, the value of the fixtures removed was an issue tried.

The defendants cannot here complain that the issue was not raised by the pleadings, for Section 55.54, V.A.M.R. provides: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The issue tried was the value of the property taken. The Supreme Court rule fixing the day upon which the value is to be assessed is, and can be, nothing more than a rule to implement the fixing of “just compensation” for the property. It does not extend to property condemned but admittedly removed by the defendants before it passed to the condemnor. This could not be, for it would compel the State to pay for something that it had not received and would constitute unjust compensation. The court therefore erred in refusing the instruction offered by the plaintiff, which informed the jury that they could not consider the value of the fixtures which the defendants had removed in arriving at the defendants’ damages.

For the reasons stated, the cause is reversed and remanded for a new trial.

ANDERSON, J., and JACK P. PRIT-CHARD, Special Judge, concur.


text:
    Minnie Marie DEAN, (Plaintiff) Respondent, v. Juanita JACKSON, (Defendant) Appellant.
    No. 31309.
    St Louis Court of Appeals. Missouri.
    Sept. 17, 1963.

      Henry D. Espy, St. Louis, for appellant.
    Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent
   WOLFE, Acting Presiding Judge.

This action involves only the counterclaim of defendant, Juanita Jackson, as the plaintiff had dismissed her action prior to the trial on the counterclaim. The counterclaim arose out of a collision between the automobile of the defendant and the automobile of the plaintiff. The defendant’s claim is for damages arising out of personal injuries, working time lost, and medical expenses. The trial was to a jury, which returned a verdict for the plaintiff, and from the resulting judgment the defendant appealed.

The collision in question occurred at the intersection . of Evans Avenue and Deer Street, in the City of St. Louis. Evans Avenue runs in an east and west direction. Deer Street comes into it from the north. It does not cross Evans, but terminates at the intersection.' A plat of the street would therefore form a “T” at the place of collision. Evans was 40 feet wide, and automobiles were parked “here and there” on the south side of the street. There were no witnesses to the collision except the plaintiff and defendant.- Each party was driving her automobile eastwardly on Evans prior to the collision. There was no one in either car other than the driver. The defendant is the claimant here, and, as stated, only her counterclaim was tried. Both parties testified, and their respective versions of what happened are in considerable conflict. ■ -

The defendant stated that at 10:15 P.M., October 13,1959, she entered Evans Avenue and began driving to the east. She entered Evans from Cora Avenue, which is a block west of Deer Street. ■ She said that she drove eastwardly oh Evans, at a speed of about 25 miles an hour, for about half a block, and then moved her automobile to the left, so that it was a few inches south of the center of the street, and that she reduced her speed tó' 15 miles per hour. She said that she turned on her left-turn signal and looked into.her rear mirror. She saw the lights of an eastbound automobile behind her after she had traveled a half block on Evans Avenue. She said that after she was in the intersection and about to make a left turn into Deer Street, she looked in the rear view mirror, and the car behind her was about two car lengths to her rear.

Before she made the turn she looked to her right and again into the mirror. She never looked to the left. She said that she then turned her car to the left and that it was struck at the door on the left side by the car of plaintiff. She said her car was damaged near the left headlight and on the left side. She said that her car came to a stop, but that plaintiff’s car passed on to her left and came to rest against a sewer opening at the northeast corner.

The plaintiff’s version of what happened is at wide variance with the defendant’s. She testified that she entered Evans Avenue to the west of the intersection where the defendant entered, and drove eastwardly with the intention of making a left turn at the Deer Street intersection. She saw the defendant’s automobile enter Evans Avenue ■ at Cora Avenue about a quarter of a block ahead of her. She saw defendant’s car travel close to the line of parked cars on the right side of the street. She said that' the defendant’s car was slowing down and then starting up, as though the defendant was going to park.

As the plaintiff intended to turn left at the Deer Street intersection, which, both cars were approaching, she moved her car so that the left side of it was in the center of the street. She sounded her horn and turned on her left-turn signal. At that time the defendant’s car was about two car lengths east of her and was not signaling for any turn. The plaintiff was then traveling at a speed of 20 to 25 miles an hour. While she was still 75 feet west of Deer Street she was passing the defendant’s car, and the front of her car was even with the front of the defendant’s car. She said that when the entire hood of her car was ahead of the front of the defendant’s car, the defendant’s car struck the rear of the right front door of her car. Upon the impact the plaintiff lost control, and her automobile went over to the northeast corner of the intersection and struck a high curbing above a sewer there. As stated, there was a verdict for the plaintiff on the defendant’s counterclaim, and the defendant is the appellant here.

Defendant charges that an instruction designated as Instruction No. 3 is erroneous. The instruction given on behalf of the plaintiff hypothesizes facts upon which the jury is permitted to find the defendant guilty of contributory negligence. It is based upon the plaintiff’s version of the occurrence which gave rise to the accident. She was entitled to have such an instruction given. It of course conflicts with the defendant’s evidence, but the jury had to decide which version it was to believe, and it should have been instructed on the law that related to both sets of facts. Robb v. St. Louis Public Service Co., 352 Mo. 566, 178 S.W.2d 443, 1. c. 444; Highfill v. Brown, Mo.Sup., 340 S.W.2d 656, 1. c. 661.

Some of the points raised against the instruction appear commingled, but the burden of one of the matters urged is that the instruction imposed a duty upon the defendant to avoid colliding with the plaintiff without requiring a finding that she knew, or should have known, that the plaintiff was attempting to pass her. We do not think the instruction is subject to this complaint. It hypothesized plaintiff’s failure to keep a lookout. Under the facts hypothesized the plaintiff could have seen the defendant’s car to her left had she looked that way. She was under duty to look in the direction in which she was about to turn her car. As stated in Myers v. Searcy, Mo.Sup., 356 S. W.2d 59:

“ ‘The driver of a motor vehicle has the duty to keep a proper lookout and to watch where he is driving, * * * and his failure to do so is negligence, which will prevent his recovery for injuries sustained as a result thereof, even though the other person is also at fault. * * * (A) motorist intending to make a left turn at an intersection must see to it that the movement can be made in safety, that there is sufficient space for the turn to be so made, and that the turn can be made without danger to normal overtaking or oncoming traffic; and he must accordingly proceed with caution and take care to avoid collisions with other vehicles. * * * The driver contemplating a left turn must keep a vigilant lookout for approaching vehicles, and also for vehicles which may be following him.’ 60 C.J.S. Motor Vehicles § 284a, pp. 661, 662, and § 367c (1), pp. 908, 909. See also Auckley v. Robbins, La.App., 45 So.2d 380. In this connection we have also recently said that ‘An operator of an automobile on a public highway cannot assume that another automobile would not be present on the highway under circumstances that would be in violation of the rules of the road and for that reason not maintain the continuous lookout required of drivers.’ Pitts v. Garner, Mo.Sup., 321 S.W.2d 509, 518.”

It is contended, also, that the instruction was not supported by the evidence, but with this we cannot agree. There was substantial evidence to support the instruction given, and the facts that it hypothesized were those testified to by the plaintiff.

There is a further assignment that “the verdict and judgment is against the weight of the evidence. * * * ” Such a contention is essentially for the trial court’s consideration when the evidence, as here, is entirely oral. Regardless of that, however, physical facts disclosed by photographs support the plaintiff’s version of how the accident occurred. Robbins v. Robbins, Mo.Sup., 328 S.W.2d 552.

It is asserted that a burden of proof instruction imposes upon the defendant the burden of proving that she was not guilty of contributory negligence. The instruction is not subject to this objection inasmuch as it simply places upon the defendant the burden of proving plaintiff’s negligence. Byrd v. McGinnis, Mo.Sup., 299 S. W.2d 455,1. c. 459; Brown v. Thomas, Mo. App., 316 S.W.2d 234; Montgomery v. Ross, Mo.Sup., 218 S.W.2d 99.

The last point raised complains of the measure of damage instruction. It appears to be in proper form, but we do not need to consider this. The jury having found for the plaintiff on the issue of liability, consideration of damages was never reached. Dryden v. St. Louis Public Service Co., Mo.Sup., 264 S.W.2d 329, and cases therein cited.

For the reasons above stated, the judgment is affirmed.

ANDERSON, J., and JACK P. PRIT-CHARD, Special Judge, concur.

RUDDY, J., not participating.


text:
    James K. PENDLETON and Patricia Pendleton, Plaintlffs-Appellants, v. Gordon A. GUNDAKER, Jr., and Donna Lee Gundaker and Robert C. Peck and Anna Peck, Defendants-Respondents.
    No. 31335.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    James K. Pendleton, pro se, St. Louis, for appellants.
    Herbert W. Ziercher, Robert C. Jones, Ziercher, Tzinberg, Human & Michenfel-der, Clayton, for respondents.
   WILLIAM M. KIMBERLIN, Special Judge.

Plaintiffs brought this suit in equity to enjoin defendants from obstructing or interfering with the use of a driveway and for a declaration that the driveway easement is a permanent servitude appurtenant to and for the benefit of plaintiffs’ land and for judgment for $2,000.00 for damages.

The facts will be stated briefly. Plaintiffs, who are husband and wife, are the owners of Lot 21 in Block 43, Kenwood Homesites, St. Louis County, Missouri, on which there is located a family dwelling and a garage at the back of the dwelling. Lying immediately adjacent to the west of Lot 21 is Lot 22 which is owned by the defendants. Both lots abut on the south side of Daiber Avenue, a public highway. Daiber Avenue is the only public roadway touching either of these lots. Lots 21 and 22 were held in common ownership prior to the acquisition of the respective lots by plaintiffs and defendants. At the time of plaintiffs’ purchase there was an eleven foot asphalt driveway along the west side of plaintiffs’ dwelling and located on Lot 22. Plaintiff, Patricia Pendleton, testified she examined the grounds two or three times prior to purchase and knew there was a driveway on Lot 22; that “when we bought the lot our dimensions were 40 feet and anybody could see our driveway was not included.” It was admitted that the plaintiffs’ deed of purchase made no mention of any grant or reservation of an easement over Lot 22.

Defendants dug up the driveway located on Lot 22 and were in the process of erecting a house on Lot 22, a substantial portion of which was located on the former driveway, when plaintiffs brought this suit in equity. One of the defendants, Robert C. Peck, said that he had no information that plaintiffs were claiming any part of Lot 22.

Defendants’ answer is in the form of a general denial. The cause was heard by the trial court on its merits, rather than for a temporary injunction and the judgment of the trial court was a dismissal of plaintiffs’petition. After-trial motions were overruled, and this appeal ensued.

At the outset it is the duty of this court sua sponte to investigate and examine the entire record and determine if it has jurisdiction of the cause, even though the jurisdiction is not challenged. In the instant case the defendants did not challenge the jurisdiction of this court. Authority for this proposition is stated in the case of Vogrin v. Forum Cafeterias of America, Mo. App., 301 S.W.2d 406,1. c. 407:

“At the outset it is the duty of this court to examine the record and determine if it has jurisdiction even though the jurisdiction is not challenged. In the instant case the defendant did not challenge this court’s jurisdiction. In the case of Briley v. Thompson, Mo. App., 285 S.W.2d 27, 29, the law is stated as follows:
“ 'This court’s jurisdiction has not been challenged. Nevertheless, it is our duty to examine the record and determine this court’s jurisdiction, whether challenged or not.’
“Furthermore, as recently stated by the Springfield Court of Appeals in the case of Taney County v. Addington, 296 S. W.2d 129, ‘Appellate jurisdiction may not be conferred by waiver, acquiescence or even express consent * * * it becomes our initial duty in each case to inquire into and determine our jurisdiction, sua sponte.’ ”

Other cases announcing this well-established principle of law relative to appellate jurisdiction are City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275, and Johnson v. Duensing, Mo., 332 S.W.2d 950.

This court is one of general appellate jurisdiction and the Supreme Court is one of limited jurisdiction. The Missouri Constitution of 1945, Article V, Section 3, V.A.M.S., provides “The supreme court shall have exclusive appellate jurisdiction in all cases involving * * * title to real estate * * The jurisdictional question before this court is whether under the facts of this case title to real estate is involved within the meaning of Article V, Section 3 of the Constitution so as to lodge the exclusive appellate jurisdiction of this cause in the Supreme Court.

In the case at bar, plaintiffs have asked not only for an injunction, but for a declaration that the driveway easement in question is a permanent servitude on Lot 22 and appurtenant to and for the benefit of plaintiffs’ land. The plaintiffs’ main theory of recovery, as advanced in their brief, is that they are entitled to a declaration of an easement by necessity in Lot 22. The defendants deny this easement exists. The issue, therefore, is squarely joined and before plaintiff can obtain a judgment it must be decreed by the court that a permanent easement exists in Lot 22.

This court is not unmindful of the cases in Missouri involving this jurisdictional point that have drawn a distinction between when title to real estate is directly involved to vest exclusive appellate jurisdiction in the Supreme Court and when it is only collaterally and incidentally involved to lodge appellate jurisdiction in the several Courts of Appeals of this state.

In the case of Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501, the Supreme Court had before it a judgment and decree establishing a permanent easement on and across the defendants’ real property and an order permanently restraining defendants from interfering with plaintiff’s use. The court, in its opinion at 1. c. 503, of 232 S.W.2d stated as follows:

“This court has appellate jurisdiction of the case on the ground that ‘title to real estate’ is involved. Jacobs v. Brewster, 354 Mo. 729,190 S.W.2d 894; Wallach v. Stetina, Mo.Sup., 20 S.W.2d 663; Davis v. Lea, 293 Mo. 660, 239
S.W. 823. See also Chapman v. Schearf [360 Mo. 551], 229 S.W.2d 552; Section 3, Article V, Constitution of Missouri 1945, Mo.R.S.A.Const. Art. V, § 3. We here note that this is not a case wherein the relief sought by a plaintiff is an order restraining the interference with an alleged existing easement, and wherein proof of title to the alleged easement is merely supportive of the prayer for the injunctive order. In such a case ‘title’ is only collaterally or incidentally involved. Wallach v. Stetina, supra. In the instant case, the plaintiff has additionally sought the relief of an adjudication of the existence of an easement — an interest in land in another’s possession. It is true ‘title’ in the sense of evidence of ownership of a fee simple estate is not in issue; but the relief sought is a decree establishing an easement, which easement would interfere with the absolute owners’, defendants’, right of exclusive and unrestricted possession and user, and which decree would amount to an adjudication of such an interest in defendants’ real estate as would encumber the land and cloud the clarity of defendants’ otherwise perfect fee simple title. The relief sought, if granted, would directly operate upon defendants’ title ‘in some measure or degree.’ See Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771, 776. * * *”

The Supreme Court in the later case of Billings v. Paine, Mo., 319 S.W.2d 653 at 1. c. 657, made the following pronouncement:

“ * * * We have held that an action which directly determines a controversy involving the title to an easement, or seeks to establish an easement, or seeks to set aside an easement, is properly in this court. Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721; Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W. 2d 501, 503; Robb v. N. W. Electric Power Co-operative, Mo., 297 S.W.2d 385; Peters v. Platte Pipe Line Co., Mo., 305 S.W.2d 413. On this theory we accept jurisdiction.”

More recently the Kansas City Court of Appeals in the case of Mueller v. Larison, Mo.App., 347 S.W.2d 446, recognized this jurisdictional question. This was a controversy stemming from the use by the parties of a common driveway which separated two residence lots owned by the parties. Plaintiff, among other things, asked for an adjudication that they were the owners of an easement over a portion of the defendant’s lot. The Kansas City Court of Appeals held that the exclusive appellate jurisdiction was in the Supreme Court because title to real estate was involved within the Constitutional sense and transferred the case. An excerpt from the opinion is as follows:

“The judgment in this case is an unqualified adjudication, in definite and certain terms, that plaintiffs ‘have an easement’ over defendants’ property ‘which easement will continue in perpetuity and inure to the benefit of plaintiffs’ administrators, successors and assigns’. An easement is an ‘interest’ in land and involves the title. See Dalton v. Johnson,, Mo.App., 319 S.W.2d 66, and cases cited. Therefore, the judgment operates directly against defendants’ real estate and affects their record title, since it divests them of an interest in their property and, in formal terms, decrees in plaintiffs a quantum of ownership. We take this view under the established ‘test of whether or not title to real estate is directly involved’, as exemplified and quoted in State ex rel. Brown v. Hughes et al., 345 Mo. 958, 137 S.W.2d 544, 545, as follows: ‘ “The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another”.’ ” (1. c. 449 of 347 S.W.2d)

The two principle cases holding that the Supreme Court does not have exclusive appellate jurisdiction because title to real estate is only collaterally and incidentally involved are Albi v. Reed, Mo., 281 S.W.2d 882, and Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721. These cases delineate the distinction between where title is directly involved and where only collaterally and incidentally involved. A number of authorities are cited in these two cases. However, it is the considered view of this court that these two cases and the authorities therein cited are not applicable to the instant case.

It is true in the case at bar injunc-tive relief is requested which operates in personam, but in addition and more significant the plaintiffs requested a declaration or adjudication by this court of a permanent easement or servitude over Lot 22. This, in the considered judgment of this court, is a determinative factor and affects or operates upon the title in some degree adversely to the defendants and in favor of the plaintiffs. This clearly encumbers defendants’ Lot 22 and places a cloud on defendants’ title. The establishment of the easement certainly interferes with the defendants’ absolute and exclusive right to the possession of Lot 22 and if plaintiffs obtain a judgment as prayed defendants must tear down their house and reconstruct the driveway. An interest in defendants’ land would of necessity be thereby carved out of Lot 22 and that interest vested in the plaintiffs. Therefore, title to real estate is directly involved within the meaning of Article V, Section 3 of the Missouri Constitution of 1945, and the Supreme Court of Missouri has exclusive appellate jurisdiction over this controversy.

For the reasons heretofore assigned, this cause is hereby transferred to the Supreme Court.

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


author: BRADY, Commissioner.

text:
    Paul W. BERRY and Norma F. Berry, Plaintiffs-Appellants, v. Reginald CROUSE and Dorothy B. Crouse, Defendants-Respondents.
    No. 31437.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Tenney, Dahman & Smith, Edward H. Tenney, Jr., Robert L. Smith, St. Louis, for appellants.
    Gray & Jeans, Charles E. Gray, St. Louis, for respondents.
   BRADY, Commissioner.

This is an action to recover the payments made upon a farm which the plaintiffs alleged they purchased from the defendants under an instrument which they contend to he a contract of sale. A jury being waived, trial was to the court which entered judgment for the defendants on August 8, 1962. This appeal followed.

Plaintiffs alleged that they paid the defendants a total of $14,350.00 at different times during 1956 and 1957; that in December 1957 the defendants notified the plaintiffs that they were in default and threatened eviction proceedings whereupon plaintiffs demanded a return of the payments made. The prayer of the petition was for “ * * * judgment against defendants in the sum of $14,350.00, together with interest thereon from January 1, 1958,, together with their costs herein.” The defendants denied that this instrument was a contract of sale and contended that the rights of the parties were governed by another instrument of even date and executed by the same parties which the defendants contend is a “Farm Lease.” Under the lease agreement as it is construed by the defendants, the plaintiffs were granted an option to purchase the property providing they complied with the rental and other provisions. In the event of any default as to any of the provisions of this “Farm Lease,” all the payments made were to be retained by the defendants. The defendants contend the plaintiffs failed to pay the rental installments as required by this agreement and therefore the payments need not be refunded.

This court does not have jurisdiction of appeals in cases where the amount in dispute, exclusive of costs exceeds the sum of $15,000.00 Art. 5, Secs. 3 and 13, Constitution of Missouri, 1945, V.A.M.S.; Sec. 477.040, RSMo 1959, V.A.M.S. When interest is considered in determining the jurisdictional amount, only that interest prior to the date of judgment is to be added to the principal. Beckemeir v. Baessler, et al., Mo.App., 261 S.W.2d 511, and cases therein cited. In the instant case the date of demand is stated in the petition as January 1, 1958 and the date of judgment appears from the transcript as August 8,1962. It follows that the amount in dispute is the principal sum of $14,350.00 plus interest at the rate of 6% (Sec. 408.020, RSMo 1959 V.A.M.S.) for 4 years, 7 months and 7 days. The interest for this period amounts to $3,962.91. The amount in dispute therefore totals $18,316.91. This sum exceeds the monetary jurisdictional limits of this court.

This cause should he transferred to the Supreme Court. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. This cause is transferred to the Supreme Court.

RUDDY, P. J., WOLFE, J., and WILLIAM M. KIMBERLIN, Special Judge, concur.