author: BARRETT, Commissioner.

text:
    KUHLMAN PLASTICS CO., Inc., Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, Inc., Respondent.
    No. 51476.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    John G. Killiger, Kansas City, for appellant.
    Irvin Fane, Joseph J. Kelly, Jr., Howard F. Sachs, Kansas City, for respondent; Spencer, Fane, Britt & Browne, Kansas City, of counsel.
   BARRETT, Commissioner.

This is an action by Kuhlman Plastics Company against Kansas City Power & Light Company to recover $150,000 damages for wrongful refusal to restore electric service on demand on October 15, 1964. On its face plaintiff’s petition states a cause of action in tort for breach of duty to restore service (43 Am.Jur. (Public Utilities and Services) § 31, p. 593; Elly-son v. Missouri Power & Light Co., Mo. App., 59 S.W.2d 714) but in response to the petition the power and light company filed a motion for summary judgment, attaching to the motion three affidavits, the plaintiff’s contract for service and Rule 3.02 filed with the Public Service Commission and, concedely, a part of plaintiff’s contract. Kuhlman filed a counteraffidavit and after judgment a motion to reconsider together with a supplemental affidavit. But upon these documents and pleadings the court found that “there is no genuine issue as to any material fact” and accordingly entered summary judgment for the defendant power and light company and Kuhlman has appealed.

Two of the appellant’s points are directed to the proposition that this was not a proper case for summary judgment, contending that its petition and counteraffi-davits raised issues of fact. In part the appellant contends merely because its petition states a common-law cause of action in tort that fact issues are presented and therefore summary judgment procedure was inapplicable. And of course if the only issue was the factual one of breach of duty, depending only on the circumstances summary judgment would have been inappropriate. Cooper v. Finke, Mo., 376 S.W. 2d 225. But here the substantive cause of action does not stand alone, another circumstance has intervened and the problem is whether that intervening factor renders as a matter of law the substantive cause of action immaterial. Not every release or other document brings into play as a matter of law summary judgment procedure (Kroger Company v. Roy Crosby Company, Mo.App., 393 S.W.2d 843), but if the circumstances set forth in the motion and the supporting proof “show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law” (Civil Rule 74.04(c)), summary judgment is indeed proper as against a common-law claim for damages. Farmer v. Arnold, Mo.', 371 S.W.2d 265. And that precisely is the problem here, whether the motion and all attending and supporting proof show by “unassailable proof” (Civil Rule 74.04(h)), that the respondent light company, despite the cause of action stated in the appellant’s petition, is entitled as a matter of law to judgment.

From the pleadings, affidavits and accompanying documents it appears that Kuhlman is engaged in the production of plastic products and is dependent on electrical power which was furnished under a “Primary Electric Service Agreement” with the respondent Kansas City Power & Light Company. The contract between respondent and appellant was executed in December 1955 and pursuant to its provisions the required electric power was satisfactorily supplied until the 15th day of October 1964. On that date electric service into the appellant’s plant was interrupted and it is alleged that although requested the electric company wrongfully refused on that day to restore service. The line was repaired and service restored on the following day, October 16, 1964, about 4 o’clock in the afternoon by supervisory personnel, nevertheless appellant claims that it was damaged $150,000 by the respondent’s failure to restore service on October 15. And, undeniably, Rule 3.02 was a part of the written agreement to supply electricity. Only insofar as material here that rule provides: “In case the Company shall be prevented from delivering, or the Customer from receiving, all or any portion of the electric service contracted for, or in case any such deliveries are delayed, when such nondelivery, inability to receive, or delay in delivering or delay in receiving such electric service is caused by strike (which in the case of Customer shall be limited to a strike of its own employees within its plant) * * * or any cause reasonably beyond their control, the Company shall not be obligated to deliver nor the Customer to receive such electric service during such interruptions-, provided, however, that the Company or the Customer, as the case may be, shall be prompt and diligent in removing or overcoming the cause or causes of such interruption or delay * * (Emphasis supplied.)

In connection with the strike provision it appears from undenied affidavits that on October 15, 1964, there was a strike of Kuhlman employees at its plant and place of business. Not all of its employees were on strike, at least the plant was in partial operation, but there was a strike and there was a picket line of striking employees “within the entrance to the Kuhlman plant” and there had been some vandalism — a shot fired into a transformer. But the immediate difficulty and cause of the interrupted service which appears in part from the appellant’s affidavit was that a metal chain had been thrown across the company’s line causing the outage. The appellant’s supplemental affidavit says that “the break in the jumper line for transmission of power was at a point approximately ten feet from the public street in Kansas City” and outside its building and “was near to and could conveniently be reached from the public street.” Nevertheless Kansas City Power and Light employees would have been required to cross the picket line maintained by Kuhlman’s employees.

And in addition to the asserted lack of police protection and the fear of violence on October 15, the undenied affidavit of the company’s labor relations employee asserts that on October 15 he was advised of the outage by the business manager of “Local 1464, I.B.E.W., which represents employees of the (Kansas City Power & Light) Company” and the business manager said that the company “was attempting to have employees represented by the Local cross a picket line to effect repairs * * and that the Local might go on strike.” Subsequently the affidavit recites that “Mr. James (the business manager) stated to af-fiant that employees of Local 1464, I.B. E.W. would strike if any Company employees were sent through the picket line to restore service * ⅜ *.” As stated, on the following day electric service was restored “with supervisory personnel and police protection” and so there was a delay “of approximately one day in restoring electric service to Kuhlman” and that the delay “was caused by the strike of Kuhl-man’s employees within its plant and would not have occurred except for said strike.”

The appellant does not question the validity of the “strike clause” (17 Am.Jur,2d (Contracts) § 417, p. 869; Annotations 35 A.L.R. 721; 125 A.L.R. 1304; 84 A.L.R.2d 12, 21) but contends that the clause may not be extended by interpretation beyond its plain terms and certainly not so as to supply proximate cause. 77 C.J.S. Sales § 209d, p. 970. In any event the appellant contends that the strike clause, which was the basis for the court’s summary judgment, was entirely inapplicable to this case because the only strike in existence and to which Rule 3.02 could apply “was a strike of certain of the employees of plaintiff company” and that did not prevent the restoration of service. It is said that the strike which prevented restoration of service on October 15 was “not even In existence, but was a (mere) threat made by the Union Representative of defendant’s employees” and the maintenance of “satisfactory labor relations between itself and its own employees” was not a strike or a cause within the meaning of Rule 3.02.

The only authority cited in support of this basic claim of the appellant’s is De Grasse Paper Co. v. Northern New York Coal Co., 190 App.Div. 227, 179 N.Y.S. 788. There a paper manufacturer sued for damages for breach of contract to deliver large quantities of coal. As a partial defense a strike clause (“This contract is made subject to strikes”) was relied upon, the other defense was a shortage of coal cars. There were many distinguishing factors in that case but it is not necessary to note them here. Among other distinguishing factors were the facts that the defendant there was a jobber and all it did was to place an order for coal with one mine. Not only did the defendant not contract for coal elsewhere, the defendant made contracts for coal for other parties and all at the same mine. And even though there was a car shortage and labor troubles the mine produced 160,000 tons of coal, more than enough to fulfill plaintiff’s needs, and so as the court observed the defendant was unable to get the coal “not because there was an insufficient amount produced at the mine, but because the selling agents sold it and shipped it elsewhere.” And finally therefore the court said, “Some other cause for nonfulfillment intervened and became the proximate cause, and it is found in the failure of the defendant so to protect itself, by purchase or by adequate contractual relations with third parties, so that it might obtain the portion of the coal produced which was necessary to the fulfillment of the contract with the plaintiff.”

A “strike clause” requires “amplification” but the clause alone is sufficient to call attention to “the tacit fundamental assumptions on which a contract is made; but it is far from being a complete expression of those assumptions. What those assumptions are, on the basis of which the true conditions of liability for breach must be determined, remain to be proved by supplementing testimony.” 3A Corbin, Contracts, § 642, p. 70. And here in the very language of Rule 3.02 there is at least a clue as to the assumptions on which the contract was made, following the phrase “caused by a strike” there is a parenthetic clause explicitly applicable to the plaintiff Kuhlman: “(which in the case of Customer shall be limited to a strike of its own employees within its plant).” There is no such explicit, delimiting language applicable to the company, the company is excused from its obligation when nondelivery “is caused by a strike.” This language obviously does not mean just any strike or labor difficulties, it means in legal contemplation material strike conditions beyond the control of the promisor company. 3A Corbin, Contracts, § 642, pp. 66-74. And the question here is whether, as exemplified by the unquestionable facts, the strike by Kuhlman’s employees, the threat of a strike by the company’s union employees if forced to cross a picket line and all the attendant circumstances reasonably bring the respondent company within the excusatory strike clause.

The appellant’s interpretation of the situation confronting the company on October 15 is that the true cause of its “action, or inaction was not any of those which might be contemplated by the standard strike clause, but was a matter of maintaining satisfactory labor relations between itself and its own employees.” It is said that there was no physical interference to prevent the company’s performance of its contractual duties and, finally, that “(t)he only strike in existence at the time of this occurrence was a strike which did not proximately cause any interference with the defendant’s duties to deliver power to the plaintiff.” But this interpretation is a narrow view of the total circumstances and a resulting restricted construction and application of the strike clause. “It also seems to us clear, on the evidence, that the performance of the contract was prevented hy a strike; and we see no reason why the word ‘strikes’ should be restricted so as to apply merely to the case of a strike at the defendant’s own mines. It is broad enough to include any strike having a legitimate tendency to prevent the execution of the contract, if the defendant was in the exercise of due care and diligence.” Davis v. Columbia Coal Mining Co., 170 Mass. 391, 397, 49 N.E. 629, 630. As the court observed in another New York case, “The performance of the contract was made contingent upon strikes and boycotts. The appellants claim that the strikes referred to were only such as might occur in the shops of the contractor. We see no reason for thus limiting the words. The obvious intent in inserting the clause was to protect the contractor from liability for delays which it could not help, so far as they should be due to strikes. There is no reason to believe that any strike which had a legitimate tendency to retard the contractor was not meant to be covered by the expression in the contract.” Milliken v. Keppler, 4 App.Div. 42, 38 N.Y.S. 738, 739; and see Jonesboro, L. C. & E. R. Co. v. Maddy, 157 Ark. 484, 248 S.W. 911, 28 A.L.R. 498. There is more than a supporting analogy in an 1897 case in this court, Weber v. Collins, 139 Mo. 501, 41 S.W. 249. There contractors instituted a suit to recover the balance due for building a house. The defendants pleaded a special contract with $5.00 daily penalties for delay, $1010.-00. The plaintiffs replied that the delays were unavoidable and excused because the contract “provided that the time for completion of the building should be extended if plaintiff was unavoidably delayed in its construction by any ‘general strike.’ ” The proof was that from June 15 to August 8, 1892, 28 of 35 planing mills in St. Louis were closed by reason of a strike. This court said that the “strike of the operatives in the mills in St. Louis was general and I am of the opinion that the strike was general within the contemplation of the parties to the contract.” This is not to lay down a general rule applicable to all strike clauses and to all possible attendant situations. But in the context of this contract and its subject matter, in the immediate situation of the parties, and in the enumerated circumstances, the essence of which appears by “unassailable proof,” including the fact that on October 16 service was restored by supervisory personnel, the temporary interruption of service for not more than one day (failure to repair or restore service) was as a matter of law excusable and a complete defense to this particular claim.

Upon this particular record there was no genuine issue as to any material fact determinative of this cause and for the indicated reasons the summary judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lawrence Edward DEAN, Appellant.
    No. 51220.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, C. H. Parsons, Jr., Sp. Ass’t. Atty Gen., Dexter, for respondent.
    Wayne B. Wright, Anthony F. Vaiana, St. Louis, for appellant.
   STORCKMAN, Judge.

The defendant was convicted of burglary in the second degree. § 560.070, RSMo 1959, V.A.M.S. At a hearing out of the presence of the jury, the court found the defendant had been previously convicted of felonies and assessed the punishment pursuant to § 556.280. The defendant’s motion for a new trial was overruled and the court sentenced him to five years’ imprisonment. In the trial court the defendant was represented by a court-appointed attorney who was permitted to withdraw after the appeal was taken; the defendant is represented in this court by another court-appointed attorney who has briefed and argued the case.

The evidence of the state tended to prove that Dick X-ray Company occupied a building known as and numbered 4000 Olive Street in the City of St. Louis. Mr. John C. Wagner, an employee of the company, was the last to leave the premises on June 3,1964, at which time all doors and windows were intact and securely closed and locked. Later that day at about 10:48 p. m., police officer William Sartorius discovered that a large hole had been broken in a window on the east side of the building. He saw the blinds move and a shadowy figure duck back from the window. He called for assistance and Officers Gustave Moeller and Richard Manley responded. Officer Moel-ler went to the rear of the building and took a position opposite a rear door which opened onto a loading platform. A short time later the rear door opened, the defendant walked out onto the loading platform and was arrested. A search revealed Rufus Smith Jones hiding in the building; he was arrested and jointly charged with the defendant, but they were separately tried. Mr. Wagner, accompanied by the police officers, discovered that some office machines and equipment had been moved and placed on a ledge near the broken window. A hat was also found in the building which fit the defendant.

As the only witness for the defense, the defendant testified he was in the 3900 block of Olive Street when he received a call from acquaintances as a result of which he went to the Dick X-ray building which he entered by the front door. He stayed there about an hour and a half drinking with others and left by the front door. One of the men named Bill had a key to the place and locked the front door. There were men and women in the crowd. They got more liquor and went to the rear of 4012 Olive. The defendant testified that, wanting to “relieve himself,” he went to the rear of 4000 Olive Street where he was standing on the bottom step of the stairs that led to the loading platform when he was arrested. The defendant denied that he came out of the back door and that he had anything to do with the burglary.

The questions presented on this appeal relate primarily to adequacy or effective assistance of the defendant’s trial counsel. It is first asserted that the defendant was prejudiced and deprived of his constitutional right to due process of law because the trial court failed “to appoint counsel adequately experienced in criminal trials.” This charge is based largely upon the statement to the jury by defendant’s counsel at the beginning of his argument that “What I don’t know about the practice of criminal law would fill volumes. This is probably the first criminal case I have tried in twenty years. My practice is confined to civil law.” Although these allegations of error are not preserved in the motion for new trial, and by reason of their very nature are not likely to be, we will review them on appeal under Rule 27.20(c), V.A.M.R. since the lack of effective assistance of trial counsel, if established, has been held to be the deprivation of a constitutional right justifying the grant of a new trial. State v. Caffey, Mo., 365 S.W.2d 607, 609-610(1-3); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

A statement of counsel of his supposed shortcoming may be commendable as a showing of lack of conceit, but when made in argument to a jury it may have the purpose of eliciting the help of the jury in acquitting his client of the offense charged. In any event the statement does not prove itself and actual situation must be determined from the entire record.

None of the cases cited holds that a person charged with a criminal offense is entitled to have appointed to defend him “counsel adequately experienced in criminal trials.” The test is whether the lawyer appointed renders effective legal assistance. The defendant is entitled to a fair trial but is not guaranteed a perfect one, and the requirement of due process is generally satisfied when the attorney gives his client his complete loyalty and serves his client’s cause in good faith and to the best of his ability. State v. Turner, Mo., 353 S.W.2d 602, 605(9-10); State v. Crow, Mo., 388 S.W.2d 817, 822(15, 16) ; State v. Washington, Mo., 399 S.W.2d 109 (decided February 14, 1966); McKenna v. Ellis, 280 F.2d 592, 599(3); Pineda v. Bailey, 340 F.2d 162, 164(2-4) ; Root v. Cunningham, 344 F.2d 1, 3(6, 7).

Next the defendant contends there was no admissible evidence of prior convictions and that the jury should have determined the punishment but that counsel failed to preserve the question for review. The state presented record evidence of pri- or convictions at the hearing out of the jury’s presence. On objection of counsel one of the exhibits was excluded. In all of them the given name Lawrence appeared, but the other forename was different; however, a series of photographs were included in the exhibits. The similarity of names was sufficient to establish the defendant’s identity especially with the accompanying photographs. State v. Collins, Mo., 394 S.W.2d 368, 371(2); State v. Witt, Mo., 371 S.W.2d 215, 220(10, 11). Furthermore, no prejudice could have resulted to the defendant since he testified in his own behalf and on cross-examination admitted prior convictions. State v. Tucker, Mo., 362 S.W. 2d 509, 513(9); State v. Redding, Mo., 357 S.W.2d 103, 108-109(14).

The next complaint concerns the hat found in the building at 4000 Olive when it was searched by police officers after the defendant was arrested. The defendant alleges his constitutional right not to give evidence against himself was violated when the police placed the hat on his head soon after it was found, and again during cross-examination when he was requested to try the hat on, which he did. The defendant has cited three cases from other state jurisdictions which are not persuasive in view of the different circumstances and the established law of this state.

When a defendant in a criminal case voluntarily takes the stand as a witness in his behalf he waives the protection against self-incrimination given him by Art. 1, § 19 of the Missouri Constitution, V.A. M.S. and Amendment 14 of the Constitution of the United States and subjects himself to the perils of being cross-examined to the-extent permitted by law. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6, 10(3). See also a concurring opinion in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 213, 96 L.Ed. 183, wherein it is stated: “Of course an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat.” The constitutional rights of the defendant were not violated in either instánce.

The final challenge to the conduct of the trial is that counsel failed to cross-examine the state’s witnesses properly and to call witnesses whose names were supplied by the defendant. The charge is not supported by the record. The extent of cross-examination and selection of witnesses to be used are matters of trial strategy which rest in the considered judgment of the trial attorney and cannot be determined on the basis of hindsight and second guessing. State v. Crow, Mo., 388 S.W.2d 817, 822(15); McKenna v. Ellis, 280 F.2d 592, 599(3).

The transcript of the proceedings demonstrates that the trial was properly and fairly conducted. There were no untoward or prejudicial incidents. The fact issue was a narrow one which the jury understandably found against the defendant. The defendant was ably represented and received effective legal assistance. He was not deprived of a constitutionally fair trial.

We have considered all questions presented by the defendant and find them to be without merit. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be in proper form and free from error.

Accordingly the judgment is affirmed.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    JACK BRANDT, LTD., a Corp., Respondent, v. Sam MORRIS and Mary Morris, Appellants.
    No. 51248.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Jeans & Boudoures, James W. Jeans, St. Louis, for plaintiff-respondent.
    Dubail, Judge & Kilker, W. Donald Du-bail, Charles R. Judge, William C. Maier, St. Louis, for defendants-appellants.
   PRITCHARD, Commissioner.

The decisive question is whether the appeal of this case is premature because the judgment of the trial court did not dispose of appellants’ counter-claim.

Respondent’s petition was upon an account for household furniture and furnishings sold to appellants, and for interior decorating and construction supervision services, all of which was furnished, done and performed at appellants’ request between June 6, 1958 and January 8, 1960. The prayer of the petition was for $5,253.38, costs and interest from April 1, 1959. Appellants denied the allegations of account due, and filed a counter-claim for $12,500 alleging that in the latter part of 1958, and during the years 1959 and 1960, respondent sold appellants certain items of household furniture and furnishings for use in their residence, and that respondent also agreed to perform certain other decorating in the renovation of appellants’ home and in installation and construction of a swimming pool thereat. It was further alleged that the furniture was of an inferior and poor quality and was required to be either repaired or replaced by appellants; that the interior decorating was improperly and negligently done and appellants expended considerable sums to have same redone; and that the tile installed in the swimming pool buckled and cracked, and appellants were required to have the tile and entire filter system thereof replaced, and there was also water seepage from the swimming pool resulting in damage to appellants’ patio which had to be rebuilt.

The case was continued at various times, and when it was finally set for trial and tried, neither appellants’ attorney, who left the courtroom at the time the case was called and refused to participate without his clients, nor appellants were present. Only respondent’s evidence in support of their account sued upon was received. The judgment entered of record recites: “Now at this day comes the plaintiff by officers and counsel, and the defendant fails (sic) to appear, and a jury being waived herein, and this cause now being submitted to the Court upon the pleadings, evidence and proofs adduced and the Court having seen and heard the same and being duly and fully advised of and concerning the premises, finds the issues herein joined in favor of the plaintiff and against the defendants, and that said defendants are justly indebted to said plaintiff for the sum of $5,253.38, plus interest of $1,470.94 aggregating a total judgment for said plaintiff in the sum of $6,724.32.” No mention is made of the counter-claim nor is there any order for separate trial thereon under Civil Rule 66.-02, V.A.M.R.

Here, a finding in favor of respondent (as was made) necessarily includes a finding that it sold the goods and performed the construction supervision services. It does not affirmatively appear that the counter-claim arose out of the same transaction, and appellants denied the essential allegations of the petition. However, proof of the allegation of one party and a finding thereon would not make a simultaneous finding for the other party inconsistent therewith where different claims are made. This case falls within the rule that a final judgment must dispose of all issues. Liepman v. Rothschild, 216 Mo.App. 251, 262 S.W. 685, 686 [3]; McNabb v. Payne, Mo.App., 280 S.W.2d 864, 866 [2-8]; Du-deck v. Ellis, Mo., 376 S.W.2d 197, 204 [3]. It does not fall within that class of cases where a judgment for one party necessarily disposes of the claim of the other (e. g., cases where each party claims the other was negligent, cf. Staples v. Dent, Mo.App., 220 S.W.2d 791, 792 [1, 2]), and see Commercial Nat. Bank of Kansas City, Kan. v. White, Mo., 254 S.W.2d 605, 608, where a finding of claimed amount due on a note disposed of defendant’s counter-claim wherein he asked restitution of amounts paid on the note by him. In this case proof by respondent of amounts due it from appellants does not by implication dispose of appellants’ claims of defective furniture sold them, improper interior decoration, or negligent tile installation and its resultant water seepage damage to their patio.

The appeal being premature, it is dismissed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner. EAGER, Judge FINCH, Judge

text:
    Ruth GIBSON, Appellant, v. Eugenia FROWEIN, Respondent.
    No. 50660.
    Supreme Court of Missouri, En Banc.
    March 14, 1966.

      Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, Joseph R. Hogsett, Houts, James, Hogsett & Mc-Canse, Kansas City, for appellant.
    Charles F. Lamkin, Jr., Alfred Kuraner, Kansas City, Kuraner, Oberlander, Lamkin, Dingman & O’Laughlin, Kansas City, of counsel, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment entered pursuant to a unanimous jury verdict in her suit for $200,000 actual and $200,-000 punitive damages for the alienation of the affections of her husband. Plaintiff’s points on this appeal are limited to the challenge of four instructions given at the request of respondent. There is no contention by defendant that a submissible case was not made.

We must first rule defendant’s motion to dismiss this appeal because of the alleged failure of plaintiff to comply with Civil Rule 83.05(a) (2), V.A.M.R., in that her brief does not contain “[a] fair and concise statement of the facts without argument.” As stated in paragraph (c) of the rule, this requirement anticipates a fair and concise statement of the facts “relevant to. the questions presented for determination.”' In this case the questions for determina-Ron are limited to the correctness of four instructions, and a statement of the facts relevant to those questions do not call for a lengthy and detailed analysis of the testimony of each and every witness as defendant has presented in more than fifty printed pages of her brief. On the other hand, plaintiff has not made a proper statement of the facts, hut she has detailed,the testimony of some, but not all, of the witnesses. Neither brief is within the spirit or intendment of the rule, but we can readily determine the issues presented. The motion to dismiss is overruled.

At time of trial plaintiff was and has been for 43 years married to her husband whose affections she alleged had been alienated by defendant, a family friend and a former business associate of her husband who, among other activities, raised saddle horses and displayed them at fairs. Plaintiff was 63 years of age and her husband a few years older. Defendant was SO years of age. Plaintiff testified that she knew of the improper relations between defendant and her husband since 1945, but that prior to filing this suit she had never said anything to either about their conduct. She and her husband lived together until after this suit was filed, and until a short time before the trial. Both plaintiff and defendant testified, but plaintiff’s husband did not. We see no occasion to detail the evidence of plaintiff or to set forth the alleged wrongful conduct of defendant. Neither do we need to set out the denials by defendant and other evidence from which a jury could find that the loss of affection for plaintiff by her husband did not result from the conduct of defendant. It is sufficient to say that plaintiff’s evidence, if believed notwithstanding defendant’s denials, authorized a finding by the jury of acts on her part inherently wrongful and seductive, and which could be found to have the natural and probable result of alienating the affections of plaintiff’s husband.

Plaintiff’s verdict directing instruction first abstractly advised the jury that a married woman is entitled to the affections, society, assistance, companionship and conjugal fellowship of her husband free from willful interference of others. The instruction then followed: “Therefore, if you find and believe from the evidence in the case that defendant was guilty of intentional and wrongful conduct the natural result of which was an interference with plaintiff’s marital relationship with her husband and an alienation of his affections, society, assistance, companionship and conjugal fellowship, if so, and if you find that was the effect actually produced by defendant’s conduct, then your verdict should be for plaintiff.” There then followed instructions on the measure of damages, including punitive damages, and burden of proof, and an instruction defining “willfully” as “intentionally,” and “maliciously” as “wrongful and intentional and without just cause or excuse.”

At the request of the defendant, the court gave instructions 6, 7, 8 and 9, each of which is challenged on this appeal by plaintiff as prejudicially erroneous. Instruction 6 told the jury that “before you can find the issues for the plaintiff and against the defendant for alienation of the affections of the plaintiff’s husband, you must find from the evidence that the defendant herself intentionally induced the husband of the plaintiff to withdraw his affections from the plaintiff, if you find he did so. It is not enough for plaintiff to show merely that the defendant was friendly with the husband of the plaintiff, nor is it sufficient that you should find merely that defendant’s conduct in her associations with plaintiff’s husband amounted to impropriety, or was even of a scandalous nature, if you so find, but before you can find for the plaintiff for alienation of affections, it must be shown by the evidence that defendant’s conduct in her associations with the husband of plaintiff was improper and wrongful, further, that the defendant intended by such conduct to catise plaintiff’s husband to withdraw his affections from her, and further, that such conduct on the part of the defendant, if you find there was such conduct, did cause the husband of plaintiff to withdraw his affections from plaintiff, if you so find. If plaintiff has failed to prove any one of these facts by the greater weight of the evidence, it will he your duty to find the issues for the defendant.” (Italics added).

Plaintiff asserts that Instruction 6 is erroneous because it requires as a condition precedent to a verdict for her that the jury find as a fact that the defendant actually intended to cause plaintiff’s husband to withdraw his affections from her. Defendant asserts that the instruction has been approved in Sandler v. Schmidt, Mo., 263 S.W.2d 35, and that it is “a proper converse of the plaintiff’s principal instruction, and properly declared the law of Missouri to the iury.”

We note first that plaintiff submitted the intention of defendant in this manner: “that defendant was guilty of intentional and wrongful conduct the natural result of which was an interference with plaintiff’s marital relationship with her husband and an alienation of his affections, * * Plaintiff submitted intentional acts on the part of defendant, but defendant in Instruction 6 submitted that the result must actually have been intended. Instruction 6 was not a converse of plaintiff’s submission.

Alienation of affections is an intentional tort, and the elements of the cause of action are defendant’s wrongful conduct, plaintiff’s loss of the affections or consortium of his spouse, and the causal connection between such conduct of defendant and the loss by plaintiff. Comte v. Blessing, Mo., 381 S.W.2d 780; Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72, 74; Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376, 31 A.L.R.2d 706; 27 Am.Jur. Husband and Wife § 523. While the acts constituting the wrongful conduct on the part of the defendant must have been intentional, proof that the defendant had an actual intent to alienate the affections of plaintiff’s spouse is not necessary if the acts and conduct of the defendant are inherently wrong and seductive and tend to and do have that effect. Rank v. Kuhn, supra; Kiger v. Meehan, 253 Iowa 746, 113 N.W.2d 743; Paulson v. Scott, supra; Leardi v. Gonser, 23 Conn.Sup. 65, 176 A.2d 594; Tice v. Mandel, N.D., 76 N.W.2d 124; Martin v. Ball, 30 Ga.App. 729, 119 S.E. 222; Wendt v. Wendt, 106 Neb. 554, 184 N.W. 66; Moore v. Grimes, 169 Okl. 4, 35 P.2d 944; Eklund v. Hackett, 106 Wash. 287, 179 P. 803; Boden v. Rogers, Ky., 249 S.W.2d 707; Harlow v. Harlow, 152 Va. 910, 143 S.E. 720; Lank-ford v. Tombari, 35 Wash.2d 412, 213 P.2d 627, 19 A.L.R.2d 462 ; 27 Am.Jur. Husband and Wife § 527; 42 C.J.S. Husband and Wife § 662. Intent is rarely susceptible of direct proof but usually must be inferred from acts and conduct, and as in other situations, in an action for alienation of affections, a person is presumed to intend the natural and probable consequences of his voluntary acts. Pearsall v. Colgan, 76 S.D. 241, 76 N.W.2d 620. A better, and perhaps more accurate, statement would be that an action for alienation of affections is based on inherently wrongful acts of the defendant intentionally done which have the natural and probable consequence of alienating the affections of the spouse of the plaintiff, and which in the particular case had that result.

We consider the above to be the sound and generally accepted rule pertaining to the issue of intent in an action for alienation of affections. Therefore, we consider to be erroneous the statements in Instruction 6 that in order to find for plaintiff the jury must find (1) that the “defendant herself intentionally induced the husband of the plaintiff to withdraw his affections from the plaintiff, if you find he did so,” and (2) that “the defendant intended by such conduct to cause plaintiff’s husband to withdraw his affections from her.” We agree with the statement in Eklund v. Hackett, 106 Wash. 287, 179 P. 803, when adapted to the factual situation of this case, that “The jury could have believed from the evidence that [defendant] had no actual intention of alienating the affection of [Mr. Gibson] from [his wife] until after [her] acts had accomplished that end. If the jury did so believe, and that such [acts] were inherently wrong and seductive, naturally tending to alienate [his] affection from [his wife] and actually did so result, this would he sufficient to render [defendant] liable in damages, regardless of [his] actual intention as to the result of such acts.”

We shall now examine the previous Missouri cases relied on by plaintiff to justify the giving of Instruction 6.

In Claxton v. Pool, 182 Mo.App. 13, 167 S.W. 623, and Farrow v. Roderique, Mo. App., 224 S.W.2d 630, the judgment in each case was for the plaintiff and the defendant was the appellant. Therefore, even though an instruction substantially the same as Instruction 6 was given in each case and is set out in the opinions, there was and could have been no issue, essential to the decision of either case, concerning the correctness of the instruction.

In Sandler v. Schmidt, Mo., 263 S.W.2d 35, the judgment was for defendant and plaintiff had appealed, and an instruction substantially identical with Instruction 6 was challenged for the precise reason here presented. It was held that “under this instruction, [defendant’s] intent could be proven by her actions and conduct,” and that “an almost identical” instruction was approved in Claxton v. Pool. We disagree with the reasoning and result of Sandler v. Schmidt. The instruction, as to the issue before us, was not approved in Claxton v. Pool, and the fact that intent may be inferred from, that is, proved by, certain conduct does not justify the requirement that at the time of the occurrence of the wrongful conduct there must be an actual intent to accomplish the result of an alienation of affections of plaintiff’s spouse. In so far as Claxton v. Pool and Farrow v. Roderique may be considered to approve the substance of Instruction 6 which was given in this case, they are disapproved, and that portion of Sandler v. Schmidt which approves the substance of Instruction 6 is overruled.

Defendant does not cite or rely on, but we should mention, Comte v. Blessing, Mo., 381 S.W.2d 780. In that case we held that because plaintiff had submitted his case in the manner he did, defendant was entitled to meet that submission in the same manner, and that it was error to refuse ..n instruction similar to Instruction 6 in this case. We emphasize that plaintiff’s submission in the Comte case included the requirement that defendant was “intentionally guilty of such conduct as was calculated * * ⅜ to alienate her from him” and that “such effect was intended by defendant to be produced.” Defendant sought, and we held he was entitled, to meet the issue as presented by plaintiff. However, Comte v. Blessing is not to be considered as approving the requirement of an actual intent on the part of defendant to alienate the affections of plaintiff’s spouse when the conduct of defendant is inherently wrongful and seductive, and when plaintiff’s submission is comparable to that in the pending case.

In view of the fact that in the event of a new trial of this case, the issues will be submitted to the jury pursuant to the new procedural rules pertaining to instructions, it would be of academic interest only to discuss the challenges made as to Instructions 7, 8 and 9. However, in the event it be contended that this judgment is reversed because of an instruction which had previous approval of this court, we add, without an extensive discussion of the reasons therefor, that we also consider Instruction 8 to be prejudicially erroneous. It was as follows : “The court instructs the jury that if the husband of the plaintiff, prior to the acts complained of in the petition, had affection for the plaintiff, and the saíne was alienated, if so, from any cause whatever, other than the attentions, conduct, and influence of the defendant done with the wrongful and willful purpose and intent of alienating his affections from her husband, then your verdict must be for the defendant.” (Italics added). The phrase “from any cause whatever” is an abstract submission comparable to the submission of contributory negligence in failing to exercise the “highest degree of care in any way,” as defined “in other instructions,” Pulse v. Jones, Mo., 218 S.W. 2d 553, and that a person “was also negligent in any manner, as submitted and defined in other instructions herein,” Hustad v. Cooney, Mo., 308 S.W.2d 647. In addition to the abstractness of the instruction, Instruction 8 does not refer to the other instructions, see Payne v. Stambaugh, Mo., 349 S.W.2d 220, 222, and, therefore, it cannot even he argued that the issues were in fact limited to those defensive matters set forth in other instructions. See also Jones v. Rash, Mo., 306 S.W.2d 488.

For the reasons herein set forth, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court en Banc.

EAGER, Judge

(concurring).

I concur upon the basis and with the understanding that Commissioner Stockard’s opinion, in dealing with Instruction No. 6, means the following: that if the defendant, in such a case as this, is guilty of intentional and wrongful conduct, the natural and probable result of which is the alienation of the affections of plaintiff’s spouse and an interference with plaintiffs marital relationship, that such a result actually follows, and that the jury so finds, then plaintiff may recover damages; and further, that there should be no requirement of a finding of intent on the part of the defendant to cause an alienation of the spouse’s affections in an instruction submitting these facts.

With this explanation, I feel that the opinion of Commissioner Stockard should be adopted as the opinion of the Court.

FINCH, Judge

(concurring).

I concur in the opinion of Commissioner Stockard and the concurring opinion of Judge Eager except that I do not agree that Instruction 8 was prejudicially erroneous. I would reverse and remand the case for error in Instruction 6.


author: BRADY, Commissioner.

text:
    Lester C. BEASLEY, Plaintiff-Appellant, v. Doctor Earl L. HULL, Defendant-Respondent.
    No. 32263.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Frank Mashalt, St. Louis, for plaintiff-appellant.
    Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

Plaintiff brought an action seeking recovery of $250.00 which he had previously paid to the defendant for a set of false teeth. Trial in the magistrate court resulted in a judgment for plaintiff in the sum of $250.00 and costs. On appeal to the circuit court a jury was waived and the court entered judgment in favor of the defendant. Plaintiff appeals.

The facts in the case, insofar as thej need to be set out in this opinion, show that the plaintiff had been without teeth for a number of years prior to the time he first went to the defendant and asked to have a set of false teeth made. There was some disagreement between the parties as to the exact nature of the defendant’s undertaking. It was the plaintiff’s contention that the defendant’s agreement was to fit him with a set of teeth and that the defendant told him that he would wear the teeth. On the other hand, the defendant’s testimony was that he told plaintiff that he would do all that he possibly could to see that defendant could wear the teeth which he was to make for him. The defendant took the necessary impressions ol plaintiff’s upper and lower gums and a set of teeth was manufactured and first delivered to plaintiff on July 13, 1962. There never was any complaint about the upper set of teeth but the defendant contended that the lower set never fit him. The evidence was that after delivery of the teeth on the 13th of July the plaintiff returned on numerous occasions, complained that he could not wear the teeth as they did not fit and made his gums sore. These visits began on the 14th of July and the evidence was that the plaintiff returned and adjustments were made in the teeth on that day and on the 16th, 19th, 23rd, 27th and 30th of that month, on August 2nd, 3rd, 7th, 10th, 13th, 17th, 20th, 24th, and 28th, and on September 6th and 20th. On these occasions the teeth were ground in an attempt to relieve the soreness of which the plaintiff complained and the defendant also prescribed the use of an adhesive powder which would make the lowers fit better. The defendant then came to the conclusion that the teeth did fit the plaintiff, “ * * * and that he was getting very good satisfaction out of them.” The plaintiff was still dissatisfied and contacted his attorney who wrote a letter to the defendant. Thereafter, the defendant saw the plaintiff again on November 2 when he relined the teeth and he saw the defendant to make adjustments. on the 6th, 9th, 13th, 19th, and 26th of that same month and on the 20th of December. He relined the teeth a second time on the visit of the 19th of November.

At the trial in the circuit court the plaintiff’s complaint was that the teeth * * * didn’t fit me, they were too large.” Plaintiff later admitted, however, that defendant’s efforts in adjusting and relining the teeth had “[mjade them so they had to fit, yes, if I’d use enough powder and keep buying enough powder to fit them.” The defendant’s testimony was that the fact that plaintiff had his teeth removed about seven years prior to his first visit caused him to have more difficulty in becoming used to wearing false teeth. Defendant contended that the teeth did fit.

There was no request for specific findings of fact and none were made. The plaintiff raises two allegations of prejudicial error. He first contends the trial court’s judgment was against the greater weight of the credible evidence and that we should enter our judgment in his favor. He also contends “[t]he trial court erroneously restricted and excluded competent material evidence.” He does not specifically point out what evidence he contends was erroneously excluded. Such an assignment of error is insufficient to preserve anything for our review. Civil Rule 83.05, (e), V.A. M.R.; Bayer v. American Mutual Cas. Co., Mo., 359 S.W.2d 748; Jennings v. Jennings, Mo.App., 379 S.W.2d 159.

The rules governing our review of jury waived cases are set forth in § 510.310, subd. 4, RSMo 1959, V.A.M.S. The specific portion of those rules governing the instant case is that which adjures us to give due regard to the opportunity of the trial court to judge the credibility of the witnesses and not to set aside the trial court’s judgment unless it is clearly erroneous. What is here involved is a simple question of whom to believe. The plaintiff contends the teeth did not fit although he modified that statement later by stating they were made to fit if he kept “ * * * buying enough powder to fit them.” The defendant contended the teeth did fit and that plaintiff’s trouble with them arose from the fact he had been without teeth for a number of years. As stated earlier there was no request for specific findings and none were made. It follows that all findings are to be deemed to have been made in accordance with the result reached. Mayo v. Lasater, Mo.App., 312 S.W.2d 601. By its general finding for the defendant the trial court is held to have resolved all issues of fact in his favor. Glaze v. Glaze, Mo. App., 311 S.W.2d 575. It follows that the trial court must be deemed to have found the teeth did in fact fit. Having due regard for the trial court’s opportunity to judge the credibility of the witnesses and keeping in mind the plaintiff’s own admission the teeth did fit when he used the prescribed powder, we cannot hold the trial court’s finding the teeth did fit was so against the greater weight of the credible evidence as to require this court to hold the judgment clearly erroneous. The judgment should be affirmed.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, P. J., and RUDDY, J., concurs.


author: DOERNER, Commissioner.

text:
    STATE of Missouri ex rel. Eugene SHERIDAN, Ray Pisarek, Frank O’Neil, James Longinette, James F. Taylor, Harvey Bohley, Pete Goode, Paul Smith, Paul J. Leone, Homer Huggins, Donald N. Meiners, Individually and for the Benefit of the Other Members of the Normandy Lakewood Improvement Association, Relators-Appellants, v. William E. HUDSON, Harry Gautsche, William H. Schaefer, Warren E. Daniels and Arnold Dominquez, as Members of the Board of Adjustment of the Town of Normandy, Missouri, and Zefferino Gavasto and Julia Gavasto, Respondents.
    No. 32230.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Donald Williams, Francis J. Nolan, St. Louis, for relators-appellant.
    Ferrara & Mulligan, John E. Bardgett, St. Louis, for respondents.
   DOERNER, Commissioner.

This is an appeal from a judgment of the Circuit Court of St. Louis County rendered in a certiorari proceeding brought to review the action of the Board of Adjustment of the Town of Normandy. The judgment upheld the Board’s order and relators, who are neighboring property owners, brought this appeal.

In view of the conclusion we have reached regarding the extent of the power granted to the Board of Adjustment by that part of Normandy’s zoning ordinance on which the Board relied, only a brief statement of the facts is necessary. Normandy enacted its zoning ordinance in 1946, pursuant to the police power delegated to its Board of Trustees, its legislative body, by Section 89.020, et seq., RSMo 1959, V.A.M.S. That legislation is frequently referred to as the Enabling Act. Section 89.080 of the Act reads, in part:

“Such local legislative body shall provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of sections 89.010 to 89.140 may provide that the said board of adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained.”

Section 89.090 specifies the board’s powers, including the following:

“(3) In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carryout the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.”

In accordance with Sections 89.080 and 89.090 the zoning ordinance of Normandy, in Article XIII, creates a Board of Adjustment and empowers it to hear and decide appeals from an administrative official. Paragraph 7 of Section 4 of that article clothes the Board with the following power:

“To authorize upon appeal whenever a property owner can show that a strict application of the terms of this ordinance relating to the use, construction or alteration of buildings or structures or the use of land will impose upon him unusual practical difficulties or particular hardship, such variations of the strict application of the terms of this Ordinance as are in harmony with its general purpose and intent but only when the Board is satisfied that a granting of such variation will not merely serve as a convenience to the applicant, but will alleviate some demonstrable and unusual hardship or difficulty so great as to warrant a variation from the comprehensive plan as established by the Ordinance, and at the' same time the surrounding property will be properly protected.”

Respondents Zefferino Gavasto and Julia Gavasto are the owners of a pie-shape tract of land in Normandy, consisting of about 5 acres. The only access to their property is by a narrow unpaved lane, called Half Street, approximately 1500 feet long, which was dedicated but not accepted because it did not meet the minimum width required for a street. Gavasto’s land, which they have owned since 1932, is in the Class B, single family residential district, as established by the Normandy zoning ordinance. Since 1962 they have been attempting to obtain permission to build six 8-family apartment buildings on an area comprising 1.886 acres of their property. Failing in their efforts to have the Board of Trustees rezone the 1.886 acres, and acting on a suggestion made by the Board of Adjustment in an appeal of doubtful legality from the Board of Trustees, they subsequently applied to the Building Commissioner for a permit to construct the apartment buildings. Upon his refusal to issue the permit they appealed to the Board of Adjustment. After notice and a full hearing, the Board on April 25, 1963 ordered the Building Commissioner to issue the permit to the Gavastos, conditioned upon their widening, paving and lighting Half Street. In its order the Board of Adjustment cited Paragraph 7 of Section 4, Article XIII as the authority for its action. Relators, who reside in a single family residential subdivision which adjoins the southern boundary of Gavasto’s 5 acre tract, instituted this proceeding in the Circuit Court to invalidate the Board’s order. After a trial, in which both sides introduced additional evidence, the court by general terms in its judgment affirmed the Board’s order of April 25, 1963. Relators then brought this appeal.

The bases upon which the Gavastos sought the permit to construct the apartment buildings were that there were practical difficulties which precluded their use of the 1.886 acres for single family residences, and that to deny them the right to use their land for multiple dwellings imposed an unnecessary hardship on them. Taking into account the evidence regarding the landlocked situation of the 1.886 acres; the topography of the entire tract, which makes it economically possible to use only the 1.886 acres of the 5 acres as building sites; the excessive cost of providing an acceptable road and the prohibitive share of such cost which would have to be allocated to each of the 8 residential lots into which the 1.886 acres could be subdivided; the proximity of Interstate Highway 70, which bounds the land on one side, and that of the right-of-way of the Wabash Railroad, which bounds it on the other; the existence of other multiple dwellings in the general area involved; and the expert opinion submitted that it would be economically unfeasible to use the 1.886 acres for single family residences and that their use for multiple dwellings would not adversely affect the property of relators, we are of the opinion that from the factual standpoint the Board of Adjustment, and the court, were amply justified in granting the Gavastos the right to use their property for a nonconforming use, that is, a use other than that for which it was zoned. We reach this conclusion, as did both the Board and the court, because of the obvious practical difficulties which prevent them from economically using it for single family dwellings, and because to deny them the right to use it for multiple dwellings would be tantamount to a taking or confiscation in the constitutional sense. Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833.

The scope of our review, however, is not limited to the determination of whether there was sufficient competent and substantial evidence to support the order of the Board and the judgment of the court. A much more serious and difficult question is presented, that of the extent of the power granted to the Board of Adjustment by the pertinent part of the Normandy zoning ordinance on which the Board relied. In that connection, a comparison of Paragraph (3) of Section 89.090, subd. 1 and Paragraph 7 of Section 4, Article XIII of the Normandy ordinance reveals some deficiencies in the latter. Both empower the Board to grant a variance as to the use of land when a practical difficulty or unnecessary hardship precludes its use for the purpose for which it is zoned by the ordinance. But all of the standards which are specified in the statute as to when such a variance may be permitted do not appear in the Normandy ordinance. Thus, the statute requires the Board to find, in addition to the existence of a practical difficulty or an unnecessary hardship, that in granting the variance (1) “ * * * the spirit of the ordinance shall be observed” ; (2) “public safety and welfare secured”; and (3) “substantial justice done.” All that can be gleaned from the awkward construction of Paragraph 7 of Section 4, Article XIII of the ordinance is that the Board (1) must be satisfied that the variation is in harmony with the general purpose and intent of the zoning ordinance ; and (2) must find that “ * * * the surrounding property will be properly protected.” The first test under the statute might be equated with the first under the ordinance, but in other respects the deficiency of the ordinance is apparent. For our purpose the ordinance must be read and construed in connection with the Enabling Act; the former, if in any respect inconsistent with the latter, is to that extent a nullity. State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030. Accordingly, Paragraph 7 of Section 4, Article XIII of the Normandy ordinance must be reconciled with the statute and considered as containing those tests and standards specified in Section 89.090, subd. 1(3).

The courts -in other jurisdictions have been called upon on numerous occasions to consider the validity of the provisions in zoning laws permitting variances, in language substantially similar to that contained in the Normandy ordinance. As is pointed out in an exhaustive review of the cases in Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244, there is a decided conflict in the decisions. One line of cases holds that in the absence of any standard or test as to what constitutes a practical difficulty or an unnecessary hardship, the ordinance constitutes an attempt to delegate legislative authority to the Board of Adjustment, and therefore is unconstitutional. Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333. In other states it has been held that the board of adjustment may grant a variance as to a minor requirement, such as a height or side yard regulation, but that its powers do not include that of authorizing a nonconforming use. Nicolai v. Board of Adjustment of City of Tucson, 55 Ariz. 283, 101 P.2d 199. A third group holds that the ordinance contains sufficient standards and rules for the guidance of the board of adjustment, and is constitutional; that such a board serves in an administrative or quasi-judicial capacity; and that it is empowered to authorize a nonconforming use when a particular difficulty or unnecessary hardship is shown to exist which is peculiar to the owner, and, in most cases, borders on confiscation; and the standards otherwise established are met. Nelson v. Donaldson, supra. The writer of that opinion, as well as the text writers, indicate that the majority of courts adhere to the last view. Yokley, Zoning Law and Practice-, 3rd Ed., Vol. 2, § 15-8, p. 151; Metzenbaum, Law of Zoning, 2nd Ed., Vol. 1, Ch. IX-b, p. 670; McQuillin, Municipal Corporations, Vol. 8, § 25.161, p. 374. McQuillin, supra, § 25.160, p. 370, defines the purpose of a variance as follows:

“ * * * The fundamental purpose of variances is to afford a safety valve against individual hardships, to provide relief against unnecessary and unjust invasions of the right of private property, to provide a flexibility of procedure necessary to the protection of constitutional rights, and to keep the law ‘running on an even keel.’ * * * ”

Another writer describes its purpose to be: “* * * A variance is designed as an escape hatch from the literal terms of an ordinance which, if strictly applied, would deny a property owner all beneficial use of his land and thus amount to confiscation.” Lincourt v. Zoning Board of Review of Warwick, R.I., 201 A.2d 482, 483, 485-486.

The basis of our Missouri Enabling Act is a “ * * * ‘standard enabling act.’ * * * ” prepared by a commission appointed by the Secretary of Commerce of the United States, and adopted in many states besides our own. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720, 725. The nature and extent of the powers granted to a board of adjustment by Section 89.090, subd. 1(3) and a municipal ordinance enacted pursuant to our Enabling Act was first considered by our Supreme Court in the landmark case of State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030. The language of the ordinance under consideration in that case is substantially the same as that contained in Section 89.090, subd. 1(3). Regarding the powers of the board of adjustment (named the Board of Zoning Appeals in Kansas City) to grant a variance for a nonconforming use the court said (27 S.W. 2d 1032) :

“ * * * The board of zoning appeals is intrusted with the duty of enforcing the provisions of the ordinance; it is an administrative body, without a vestige of legislative power. It cannot therefore modify, amend, or repeal what the ordinance itself designates as its ‘general rules and regulations’; the power to do that is conferred upon the common council of Kansas City, and it can delegate no part of that power.”

Obviously, by Section 7 of the Enabling Act, now Section 89.090, the power and authority to grant a variance of some kind was thereby given to the board of adjustment, otherwise the section would be a nullity. The extent of that power, as delineated by the court, was as follows:

“ * * * The ordinance does not purport to authorize the board of zoning appeals to modify, amend, or repeal any of its provisions; but it does permit and direct the board to modify or partially suspend a rule in its application to a particular case where strict enforcement would ‘by reason of exceptional circumstances or surroundings constitute a practical difficulty or unnecessary hardship.’ This provision must be read in connection with section 7 of the Enabling Act, which provides that the board of adjustment shall have the power, ‘where there are practical difficulties or unnecessary hardship in the way of carrying ' out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.’ In other words, if in a specific case the enforcement of a regulation according to its strict letter would cause unnecessary hardship and the board can by varying or modifying the application of the regulation obviate the hardship and at the same time fully effectuate the spirit and purpose of the ordinance, they are authorized to so vary or modify the application.”

That passage would indicate that the court interpreted the ordinance and Section 89.090, subd. 1 (3) as empowering the board to grant a minor variance, which are regarded in some quarters as “exceptions” rather than “variances.” Yokley, supra, Sec. 15-4, p. 138; Metzenbaum, Ch. IX-f-2-(b), p. 813. In any event, the court was emphatic in its view that the board’s power did not extend to the extent of granting a variance for a non-conforming use, for it concluded:

“ * * * But the board can in no case relieve from a substantial compliance with the ordinance; their administrative discretion is limited to the narrow compass of the statute; they cannot merely pick and choose as to the individuals of whom they will or will not require a strict compliance with the ordinance. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 1196, 298 S.W. 720.”

It is true that in that case there was no showing of a practical difficulty or an unnecessary hardship which justified the grant of a variance for a nonconforming use. But the Supreme Court did not limit its decision to a denial of the landowner’s right to a variance under the circumstances shown. Its language, that “ * * * the board can in no case relieve from a substantial compliance with the ordinance * * *” (Emphasis ours.), clearly shows that it was holding that regardless of the practical difficulty or unnecessary hardship which might exist, a board of adjustment does not possess the power to grant a variance for a nonconforming use. That construction of the opinion has been placed on it by our courts of appeals, as well as by courts of other jurisdictions. Adams v. Board of Zoning Adjustment of Kansas City, Mo.App., 241 S.W.2d 35; Nelson v. Donaldson, supra; Nicolai v. Board of Adjustment of City of Tucson, supra.

In the light of the Supreme Court’s decision in State ex rel. Nigro v. Kansas City, which we are required to follow, Art. V, Sec. 2, Const.Mo., V.A.M.S., we are constrained to hold that the Board of Adjustment of Normandy had no power to grant the Gavastos a variance for a nonconforming use of their property, and that its order directing the Building Commissioner to issue them a permit for the construction of the apartment buildings on their land was beyond the Board’s authority and void.

No point has been raised by the relators regarding the constitutionality of the Normandy ordinance, and the Supreme Court’s decision in State ex rel. Nigro v. Kansas City, supra, was reached without any treatment of the constitutional question. Because the issue was not raised, and because of the constitutional limitations on our jurisdiction, Art. V, Sec. 3, that question is not before us. We merely note, in passing, that in Fairmont Inv. Co. v. Woermann, 357 Mo. 625, 210 S.W.2d 26, a similar ordinance of the City of St. Louis was held void on the grounds that there were not prescribed therein uniform standards or tests which imposed proper restrictions on the exercise of the police power granted to the Board of Adjustment; and that the court’s view of the constitutional invalidity of the ordinance as expressed in Fair-mont Inv. Co. v. Woermann, supra, was confirmed in the relatively recent case of State ex rel. Ludlow v. Guffey, Mo., 306 S.W.2d 552, an en banc decision.

It appearing that the Normandy Board of Adjustment had no authority to grant a variance for a nonconforming use, and that its order of April 25, 1963 directing the Building Commissioner to issue to the respondents a building permit for the construction of apartment buildings is therefore void, the judgment of the circuit court is reversed and the cause is remanded for proceedings in conformity with the view herein expressed.

PER CURIAM.

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

Accordingly, judgment is reversed and the cause remanded for proceedings in conformity with the view herein expressed.

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


author: RUDDY, Judge.

text:
    Lowell K. WOOD, (Plaintiff) Respondent, v. Nancy V. WOOD, (Defendant) Appellant.
    No. 32121.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Milton F. Napier, Claude W. McElwee, St. Louis, for appellant.
    Shaw, Hanks & ■ Bornschein, Claude Hanks, Clayton, for respondent.
   RUDDY, Judge.

This is an appeal from a final order and judgment modifying a previous order and judgment entered on January 11, 1963, changing the custody of the minor child of the parties herein.

This is not the first appeal by the parties herein regarding the custody and support of their minor child. In a previous appeal taken by the defendant (wife) herein, Mo. App., 378 S.W.2d 237, we pointed out that the minor child herein has been the subj ect of repeated proceedings between the parties since the original decree of divorce was granted to defendant on January 14, 1959. In the original decree of divorce the custody of the child was awarded to defendant, and certain rights of temporary custody were given to plaintiff. Subsequently, by either contested proceedings or by stipulations consenting thereto, the original decree with respect to custody and child support was modified by orders made on July 11, 1960, November 3rd, 1961, and January 11, 1963. The pertinent parts of the order made on the last mentioned date are as follows :

“It is ordered by the Court, by consent of the parties hereto, that the decree of divorce rendered herein on the 14th day of January, 1959, * * * and as modified on the 11th day of July, 1960, * * * and as modified on the 3rd day of November, 1961, * * * be again modified, so that from the date hereof, the plaintiff shall have the exclusive and undisturbed custody of the minor child named Lowell K. Wood, Jr., during the present school term until the middle of the vacation period of 1963; beginning with the middle of the vacation period of 1963, defendant shall have the custody of said child until the middle of the vacation period of 1964, and each party to have successive rights of custody, alternately thereafter, until the further order of the Court.
“It is further ordered, adjudged and decreed by the Court that the plaintiff and defendant shall have the temporary custody of said minor child on alternate weekends from 9:00 A.M. Saturday to 6 P.M. Sunday, except during the summer vacation periods when each party shall have unrestricted and undisturbed custody of said minor child, until the further order of the Court.”

On the 7th day of June, 1963, plaintiff filed a motion to modify the order and judgment of January 11, 1963, modifying the original decree of divorce. On July 12, 1963, the trial court sustained plaintiff’s motion to modify filed on June 7, 1963. Defendant took an appeal from this order and judgment to this court. We reversed the order and judgment entered by the trial court and remanded the cause for a new trial before another Judge. See our opinion Wood v. Wood, Mo.App., 378 S.W.2d 237.

After plaintiff’s motion to modify, filed on June 7, 1963, was reinstated upon the trial court’s docket, plaintiff filed an amended motion to modify on June 20, 1964, and on July 14, 1964, and July 26, 1964, amended his amended motion by in-terlineation. We deem it unnecessary to recite the allegations of plaintiff’s amended motion to modify as amended by inter-lineation. After a hearing on plaintiff’s amended motion to modify, the trial court on July 31, 1964, entered its order and judgment sustaining plaintiff’s amended motion to modify and modified the previous order and judgment entered on January 11, 1963, by awarding the plaintiff the care, custody and control of Lowell K. Wood, Jr., the minor child of the parties, until the further order of the court. The court further ordered and adjudged that the defendant shall have temporary custody of said minor child on the first and third weekends of each month at stated times and for and during the first 21 days in August of each year, and further ordered and adjudged temporary custody of said minor child during certain holiday periods of each year. The court made a further order and judgment regarding support and maintenance during some of the periods the child would be in the custody of the defendant, the details of which we need not recite here. As we have said, it is from this order that defendant has taken the appeal.

It appears from the record herein that the plaintiff-father had the custody of the child from January 11, 1963, until the 15th day of July, 1964, when the child was turned over to the defendant, just 12 days before the testimony was heard in the instant matter on appeal. The minor child herein, Lowell K. Wood, Jr., was frequently referred to as “Chipper” by both parents in the course of their testimony. The child was 10 years old at the time of the trial and was living with the plaintiff-father and his wife (plaintiff married again) at plaintiff’s residence located at 2545 Clifton Avenue in St. Louis, Missouri. During the period of approximately one and one-half years that the child was with the plaintiff, Chipper attended the Epiphany School and Church. The plaintiff lived within the boundaries of the Epiphany parish and both plaintiff and the minor child would attend Epiphany Church every Sunday. It appears that on the occasion when the child was with the defendant-mother they attended church at either St. Anthony’s or St. Pius Church, the latter church being about three or four miles from the home of plaintiff. The child did very well at Epiphany School. His report card showed four “E’s” and one “U.” The child testified that the one “U” was for “keeping my desk clean.” The child always had good grades in school. While attending Epiphany School the plaintiff would take the child to the school in the morning and plaintiff’s wife would pick the child up in her automobile at the close of the school day. The child belonged to the Cub Scouts and plaintiff’s wife would take him to the den meetings. This continued until the den meetings were held in a home across the street from the plaintiff’s home.

Defendant-mother testified that the boy was a member of the Cub Scouts before he went to live with his father in January, 1963. The mother of Chipper owns property at 3020 Cherokee Street in St. Louis, which property consists of two apartments on the first floor that are rented out and a five room apartment on the second floor, consisting of a living room, a dining room, two bedrooms, a kitchen and a hath. The second floor apartment is occupied by the defendant and no one else lives with her except the child when he was there on visit. She testified that she occupied the back bedroom and that when the child was with her he would occupy the front bedroom. However, during the period the child was with her immediately before the hearing, the child shared the back bedroom with her and she and the child slept together. The need for the child sleeping in the back bedroom with her was occasioned by the painting and remodeling of the front bedroom.

Defendant owns and operates a beauty shop on Cherokee Street and it is located very close to the home of defendant. Her daughter, by a previous marriage, Nancy, is employed by her. Defendant operates the beauty shop two full days and a part of three days and remains open two evenings a week until 6 P.M. She testified that the shop is closed on Mondays and on Tuesdays. On Wednesdays she is finished by noon and on Saturdays she is finished between three and four-thirty P.M. Whenever the child was with his mother, the defendant herein, he stayed either in the beauty shop or in defendant’s home during the time defendant was working. When he stayed in defendant’s home he was either alone or with a little girl, named Tammy, who the child said was 10 years of age. During the time the child was with his father, the plaintiff herein, he visited his mother on Saturdays and Sundays and spent Saturday nights with his mother. When the child would visit his mother he would either watch television with her or they would go to a movie together. The child testified that on one occasion he attended the Ice Follies, accompanied by his mother and Art Pendelli. When the child would visit his mother on a number of occasions, Mr. Pendelli drove the child and the mother to church on Sundays and drove them home' from church. On one occasion the child, his mother and Mr. Pendelli went on a fishing trip. This fishing trip was the result of Mr. Pendelli learning of the child’s interest in fishing. No one visited the mother in her apartment when the child was there, except on several occasions when the man, who the boy said “worked downstairs,” would come up to the mother’s apartment and remain 10 or 15 minutes.

On several occasions when the child arrived to spend a weekend with his mother she was not at home when he got there and the child would be returned later. The mother explained that on one of these occasions she had been painting next door and at other times she was shopping for groceries. On some occasions when the child would arrive and the mother was not home, he would stay in the mother’s apartment with Nancy, the daughter of the mother, who was 19 or 20 years old and married at the time of the trial. On one occasion while waiting for the mother to return from a shopping tour the child stayed in a pool hall with Nancy for approximately 25 minutes until the mother’s return. This pool hall is located next door to the mother’s beauty shop and while waiting in the pool hall Nancy engaged in a game of pool with three boys. There is no showing that the child ever played pool there.

It is apparent from what we have said that the child testified in this case, which was regrettable, but apparently his testimony was needed in order to prove some statements made by the mother to the child about the father. In the course of the boy’s testimony he said that on one occasion his mother said his father was lower than “whale shit.” He further testified that his mother said that “you would be better off dead than grow up like your father,” and she also said, “didn’t I think it would be unfair and stuff like that, by going with dad.” On another occasion when talking about the father, the boy testified the mother said to him, “you’re going to grow up just like your father.” He further testified that she told him he would be better off if he went to a military school and not be with “neither one of them.” He testified that his mother said he would be better off with her and that he told his mother that “I wanted to go with my dad.” He said he talked with his mother over the telephone and face to face about living with his dad, and that when he would tell his mother on the telephone that he wanted to go with his father, she would hang up the phone.

In the couple of days prior to his testimony his mother kept asking him if he thought it was fair saying he wanted to go with his dad. He was asked: “Q. Had she said anything about not wanting you after today after you testified? A. Yes, sir. * * * Well, if I went to live with my dad she said she didn’t want me on the weekends or on my August — *

In his direct examination the child was asked if he ever had any discussion with his mother concerning the treatment that his father gave him and he answered “Yes, sir.” When asked the course of these discussions, he answered, “Stuff like, well, she said that in every divorce case every side tries to get, you know, like the best of the kid, on the best side, and it’s like when the one feeds the candy last, that’s the side you’re on, that’s what she said to me.” He further testified that on his birthday his mother did not call him on the telephone, did not send him a'birthday card and did not send him any presents, and indicated that she has not given him anything for his birthday. However, on cross-examination he admitted that his mother did talk to him about buying a bicycle for him. She told him that when he came to live with her, she would get him a bicycle.

The testimony given by Lowell K. Wood, Sr., the plaintiff herein, showed that he is in the real estate business and is now married, living at the residence heretofore indicated. He said that his former wife told him, “You can have him (the child) forever if you get custody. I won’t take him on weekends or vacations or anything if the Judge gives him back to you.” Defendant told him she did not want to see the boy again if he won custody in the courts. When plaintiff told defendant that if he gets custody she would have the boy on weekends and on his vacation in August, she then said, “No, I don’t want him on weekends or vacation. I never want to see him again.” Plaintiff lives in a five room home with a reception hall and an extra bedroom in the basement. Chipper, the child, has a room to himself. His present wife does not work and when he is at work his present wife takes care of Chipper and this has been going on during the last two years.

Nancy V. Wood, mother of the child and defendant herein, testified that at the time of the hearing that resulted in the order and judgment of the court which was reversed by this court, she had rented a seven room home on a half acre of ground in the County of St. Louis, stating she wanted a nice home in a nice neighborhood for the boy if she received custody. She has been in the beauty shop business 20 to 21 years and has been in it constantly since she obtained the divorce. When she was asked if she had the conversation with her husband wherein she was reported to have said that she did not want to see the boy again if the court granted the custody to the plaintiff, she said, “it was not that way,” answering: “Mr. Wood said something about the boy going back and forth, back and forth from school to school, and I agreed it was not good for the child, but as far as me never wanting to see the child again, that is untrue.” She denied that she made any such statement to the plaintiff or the child. She said that if she was permitted to keep the alternate custody, as provided in the order and judgment of January 11, 1963, she would send the boy to a parochial school. She testified that she had suggested to the plaintiff that the boy be put in St. Pius School, which is one block from- plaintiff’s office, and that then the child could go to the same school when he is with the defendant, as well as when he is in plaintiff’s custody, and there would be no necessity for changing schools. She said that the plaintiff refused to agree to this. She denied that she ever cursed in the presence of her boy and denied that she told the boy he would be better off dead than with his father. She said the boy told her that he loved both his mother and his father, but that, “he said he would rather live at his father’s house because of all the little friends over there. He has two dogs over there and he would miss them, and the only time he misses me is when he goes to bed at night.” She admitted that she, the boy and Mr. Pendelli attended the Ice Capades together and that Mr. Pendelli on quite a number of occasions took them to and from church on Sunday mornings and on one occasion took her and the hoy on a fishing trip. She said she bought the boy “a whole bunch” of presents, and wanted to buy him a bicycle on one weekend when he came to see her and the boy said, “No, we’ll get it later.” She said she bought him almost $50 worth of clothing and said she did not send him a birthday card because she did not want to bother him when he was with his father.

Most of the points relied on by defendant contain abstract principles of law and are insufficient to present anything for review. We add, however, that we do agree with the principles of law enunciated by defendant in her brief and in her points relied on. In the remaining points relied on by defendant she contends that the plaintiff has failed to adduce sufficient substantial evidence showing that since the rendition of the last final order and judgment a change has occurred in the circumstances affecting the child’s welfare.

In the briefs of the parties herein we discern no real dispute between them concerning the applicable principles of law and the duty of this court in a proceeding of this nature. We stated the applicable principles of law in connection with our duty in reviewing these matters in the cases of Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40, and Patterson v. Patterson, Mo.App., 375 S.W.2d 614. In those cases we merely reiterated what has been said in a multitude of other cases that it is our duty to review the whole record and we must decide the matter before us on its merits, having uppermost in mind the predominant rule that the best interests of the child must be served. Also, we must be mindful that plaintiff had the duty and the burden to show changed circumstances and conditions since the last modification as to custody and must show by a preponderance of the credible evidence that there has occurred changed facts and circumstances which, in the best interests of the child, requires a modification of the last order and judgment of custody. The welfare of the child is without exception the basic and principal consideration to which the parents’ own wishes and personal desires must yield if opposed to such welfare. Due regard should be given by us to the opportunity of the trial court to judge of the credibility of the witnesses, therefore, we should accord a proper deference to the findings of the trial court on disputed questions of fact where matters of credibility of witnesses are involved. The child is not to be given as a reward to one parent nor is it to be withheld as a punishment to the other parent.

The determination of the proper custody of a child in these proceedings always presents a difficult problem. There are no fixed and clear rules to be followed and each case must be judged according to its own particular facts, constantly having in mind that it is the duty of the court to give primacy to the welfare of the child. We do not disturb the trial court’s order and judgment unless it is clearly erroneous and we are convinced that the welfare of the child requires some other disposition.

-At the threshold of our remarks we note the order and judgment of January 11, 1963, provided that the exclusive and undisturbed custody of the minor child shall change from one parent to the other parent each year. It appears that this order and judgment was entered by the court without a hearing and merely on the consent and stipulation of the parties. We think this is a practice that should be rarely followed, if at all, by a trial court and feel that evidence should be taken to determine the propriety of the stipulation entered into by the parties and whether or not the custody provided therein serves the best interests and future welfare of the child. Generally speaking, except for good reason, the child should not be shifted periodically from one home to another and as in most instances the interest of the child is best served from a standpoint of stability if one or the other parent is given full custody with reasonable visitation rights to the other parent. The trial judge in the instant matter filed a memorandum opinion when handing down his order and judgment that is now on appeal. In this memorandum opinion he said: “It is rather eyident that a regular and orderly schedule, without undue interruption, will afford numerous benefits to the minor child and provide him with an atmosphere wherein he can grow and develop in a normal and wholesome manner. Constant and continued change tends to provoke strains and tensions, which eventually may have an adverse effect, and to cause serious problems of adjustment.” We agree with the trial court’s observations in this connection and feel certain that the alternate custody as provided in the order and judgment of January 11, 1963, surrounds the child with a climate of instability.

We think the matter of the child’s increased age since the time of the entry of the last order and judgment of custody is a change in circumstances that the trial court may take into consideration, particularly under the facts of this case where the child will shortly enter his adolescent years and shortly thereafter will approach young manhood. The next 7 or 8 years of the life of this child are the highly important years in which the character, stability, morality and other virtues needed for full maturity will be formed. It is highly important that through these years he be raised in an atmosphere of serenity and stability. As a matter of fact the mother agrees that it is bad for the boy to be shunted back and forth between the parents, in alternate periods of full custody. We, too, think it is bad for the child.

We think, in this same area, that the court made the proper decision in granting the permanent custody to the plaintiff-father. While defendant contends that we should not consider the fact that the father has had the child for a continuous period of one and one-half years prior to the hearing, because it was his duty under the order and judgment of January 11, 1963, to turn the child over to the defendant in the summer of 1963, nevertheless, when considering that which is for the best interest and future welfare of the child, the happenings during this period deserve consideration. During this period of time the child was attending Epiphany School and obviously doing exceedingly well and any change at this time would require attendance at another school. However, a more compelling reason for granting the custody to the plaintiff-father is that the child will have full time adult supervision, inasmuch as the plaintiff has again married, and the present relationship of the child with plaintiff’s wife has in no way been discredited or attacked. On the other hand, if the custody is given to the defendant, the child would be lacking this supervision during certain days because the defendant is employed in the operation of a beauty parlor. Under these circumstances it would be necessary for the defendant to hire some sort of supervision while she is operating her beauty parlor or permit the child to go about unsupervised. As between the two homes, it is quite obvious that the home of the father would best serve the child’s interest and future welfare. It is difficult for a court to make these decisions and we realize that there is greater difficulty on the part of the defendant herein to accept this determination, but she must realize, as we have pointed out, that it is the aim of the law and those administering the law to serve primarily the best interest of the child.

Also, if plaintiff’s evidence is to be believed, then plaintiff has shown that there is other evidence showing that a change has occurred in the circumstances affecting the child’s welfare. Plaintiff’s evidence showed a rather steady effort on the part of the defendant to estrange the child from plaintiff and to demean and downgrade the father in the eyes of the child; not realizing that in doing this she was building up in the mind of the child a disrespect for authority. In at least one instance her remark was of a highly vulgar nature and should never have been made. We do not mean to infer that the evidence shows the mother to be unfit, but these statements made to the child by her would in no manner serve the child’s interests and would rather have the opposite effect.

Defendant seems to contend that the trial court took into consideration the wishes of the child. We find no support in the record for this contention.

We think the plaintiff has supported his motion and has established material changes of circumstances and that the award of the child’s custody to him will be in the best interests of the child. It is our duty to defer to the finding and judgment of the trial court unless it is clearly erroneous and discloses a manifest abuse of judicial discretion. We find no error and no abuse of discretion.

The order and judgment of the trial court is affirmed.

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