author: CLAYTON, Justice.

text:
    Roberto HIDALGO et al., Appellants, v. Tony LECHUGA, Appellee.
    No. 5809.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 5, 1966.
    Rehearing Denied Oct. 26, 1966.

      Galvan & Galvan and Ben A. Endlich, El Paso, for appellants.
    Gerald B. Shifrin and Arturo R. Aguirre, El Paso, for appellee.
   OPINION

CLAYTON, Justice.

Suit in trespass to try title brought by Tony Lechuga, appellee here, against Roberto Hidalgo, Maria Hidalgo, a feme sole,. Bernie Rios and wife, Ofelia H. Rios, Carolina Hidalgo, a widow, and her minor children : Maria Cristina Hidalgo, Rosalia Hidalgo and Armando Hidalgo, represented by a guardian ad litem, appellants here.

In plaintiff’s second amended original petition, on which trial was had, plaintiff alleges that he acquired title from one Luis Velasco and wife, Maria del Refugio Velas-co, and that he and those from whom he acquired title had held peaceable, continuous and adverse possession of a certain parcel of real estate located in El Paso-County, Texas, improving, using and enjoying the same and paying the taxes thereon for more than ten consecutive years prior to March 23, 1962, when he was dispossessed by defendants. Plaintiff claims title under the ten-year statute of limitations, Art. 5510, V.A.T.S., his predecessors in title having taken possession of the property in 1943. That their possession and use of the property was plain, open and obvious, and adverse to any claim of right of the defendants.

Further, that the said Luis Velasco and wife, Maria del Refugio Velasco, entered into an oral contract to purchase the property from one Gaspar Hidalgo, under whom the defendants claim, for the sum of Two Hundred ($200.00) Dollars, to be paid One Hundred ($100.00) Dollars down and the balance payable in $10.00 and $20.00 payments, the total amount being paid in full, the last payment having been made in 1957. That the improvements made by them were valuable and permanent, and all taxes were paid by them on said property, all with the knowledge and consent of their vendor, Gaspar Hidalgo, and during their occupancy of the premises. The prayer of the petition was the usual prayer in a trespass to try title suit.

The case was submitted to a jury on special issues, which were answered as follows:

1. That Luis Velasco and wife orally purchased the property from Gaspar Hi-dalgo.
2. That the Velascos, after purchasing the property, went into possession of the same.
3. That they were to pay $250.00 for the property.
4. That they did pay said sum.
5. That they erected valuable and permanent improvements on the land in question.
6. That plaintiff, Tony Lechuga, and those under whom he claims, had been in peaceable and adverse possession of the property for a period of ten years or longer prior to June 1, 1962 (when suit was filed).

On this verdict, judgment was entered by the court for plaintiff, Tony Lechuga, for title and possession of the property against all defendants, who took nothing, removing cloud and setting’ fees for the guardian ad litem against defendants Roberto Hidalgo, Maria Hidalgo, a feme sole, Bernie Rios and wife, Ofelia H. Rios.

Appellants present seven points of error: (1) That the trial court erred in failing to grant appellants’ motion for new trial because there was an irreconcilable conflict between Issue No. 1 and Issue No. 6; (2) that the submission of these issues was error since findings in the affirmative thereon would and did result in an irreconcilable conflict; (3) that the court erred in rendering judgment on the passage of title on an oral contract where there was no evidence to support the jury’s finding on Issue No. 5, that the Velascos made valuable improvements; (4) that there was error in rendering judgment on the jury finding of adverse possession under the ten-year statute of limitation since Gaspar Hidalgo committed acts of ownership over the property such as to preclude a finding of adverse possession; (5) that Maria Cristina, Rosa-lia and Armando Hidalgo are minors and adverse possession could not run as to them; (6) that there was error in submitting Issue No. 1 since there was no evidence to show that the elements necessary to relieve a parol sale of land from operation of the statute of frauds was presented; (7) that there was error in allowing testimony of witnesses in violation of Art. 3716, V.A.T.S., the dead man’s statute.

It is considered that Point of Error No. 1 must be overruled and, perforce,. Point of Error No. 2 must also be overruled.. We find no irreconcilable conflict in the-jury’s answers to Issue No. 1 and Issue-No. 6. Plaintiff was legally entitled to-plead in a proceeding in trespass to try title the interest which he claims in the-premises, whether it be a fee simple or other estate (Rule 783, T.R.C.P.), and can also-plead limitation. Meyer v. Paxton, 78-Tex. 196, 14 S.W. 568, 569 (1890):

“ * * * Limitation, when relied upon,, either as a ground of action or of defense, must be specially pleaded, and the fact that this has been done should not’ preclude a plaintiff, in an action of trespass to try title, from establishing any other title upon which he may rely.”

See also Bartee v. W. T. Carter & Bro., 100 S.W.2d 378, 382 (Tex.Civ.App., 1936, dism.) :

“On the issue of 10-year limitation we overrule appellees’ contention that, by pleading specially the 10-year statute of limitation, appellants abandoned their general allegations of trespass to try title, and were limited to their limitation claim, and therefore appellants could not rely upon a presumption of title on the theory of prior possession. Of course, it is the established law of this state that a plaintiff in an action of trespass to try title, who specially pleads his title, abandons his general allegations and is restricted to the matter set forth in his special plea. 41 Tex.Jur. 562, and authorities therein cited. But a plea of the statute of limitation is not a special plea within that general rule. Mayers v. Paxton, 78 Tex. 196, 14 S.W. 568; Brownfield v. Brabson (Tex.Civ.App.) 231 S.W. 491. There is authority for the proposition that the plaintiff may plead the statutes of limitation, not merely as a source of title, but as the source of title. Cornish v. Houston Terminal Land Co. (Tex.Civ.App.) 257 S.W. 575. But that rule could have application only where it affirmatively appears upon the face of the petition that the plaintiff is relying only on his limitation title, and appellants’ petition in this case is not subject to that construction.”

Furthermore, we do not consider that there is an irreconcilable conflict in the answers to the two issues. The affirmative answer to Issue No. 1, and the answers to Issues 2, 3, 4 and 5 would support a judgment for plaintiff, and so would the jury’s answer to Issue No. 6. In 57 Tex.Jur.2d 291-293, § 551, Material Conflicts, it is recited:

“Since there is no scale of priority for findings, where two findings regarding a material fact are so constituted that both cannot be true, there is a fatal conflict, and neither will be permitted to stand.
“Mere inconsistency between two sets of findings is not fatal. But where one answer would establish a cause of action or defense, and another would destroy it, or where one finding would warrant a judgment for a party while another would warrant a judgment for his adversary, the findings are irreconcilable and cannot be permitted to stand.”

Such is not the case here, and Points of Error Nos. 1 and 2 are overruled.

In Point of Error No. 3 it is contended that there is no evidence to support the jury’s finding on Issue No. 5 that the Velascos made valuable improvements, and thus the trial court erred in rendering judgment on the passage of title on an oral contract. The case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116, 15 A.L.R. 216 (1921) is urged by appellants as the leading case on oral contracts under the statute of frauds; but we feel that the conditions as set out therein have been fulfilled in the case before us. The cited case recites:

“From an early time it has been the rule of this court, steadily adhered to, that to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Payment of the consideration, though it be a payment in full, is not sufficient. This has been the law since Garner v. Stubblefield, 5 Tex. 552. Nor is possession of the premises by the vendee. Ann Berta Lodge, [etc.] v. Leverton, 42 Tex. 18. Each of these three elements is indispensable, and they must all exist.”

And in the same case, quoting the Texas Supreme Court case of Wooldridge v. Hancock, 70 Tex. 18, 6 S.W. 818:

“ ‘But it is necessary to the validity of a parol sale or gift of land in Texas, however the rule may be elsewhere, that possession be delivered and substantial and valuable improvements made, with the consent or knowledge of the vendor, upon the faith of such gift or sale.’ [Citing Ann Berta] Lodge, [etc.] v. Leverton, 42 Tex. 18, and Eason v. Eason, 61 Tex. [225] 227.”

See also Truck Insurance Exchange v. Schuenemann, 391 S.W.2d 130, 134 (Tex.Civ.App., 1965; ref., n. r. e.); Davis v. Crockett, 398 S.W.2d 302, 304, syl. 1 (Tex. Civ.App., 1965; n. w. h.) ; and Hernandez v. Dominguez, 399 S.W.2d 385, syl. 3 (Tex.Civ.App., 1966; ref., n. r. e., 405 S.W.2d 57). Have these requirements been met here? It must be kept in mind that plaintiff is claiming through Luis and Maria del Refugio Velasco, who claim through Gaspar Hidalgo, by oral purchase, or by virtue of the statute of limitations; that the pleadings allege the purchase price from Hidalgo to have been $200.00, although the jury found that the Velascos agreed to pay, and did pay, $250.00 for the property. In any event, the price paid was a relatively small amount. Mrs. Carolina Hidalgo, widow of Gaspar Hidalgo, who is the common source of title, having been married to him from July, 1953 until his death in June, 1957, testified that Gaspar and Maria del Refugio Velasco were brother and sister. She further testified that Maria del Refugio and her husband, Luis Velasco, were buying some property from her husband, Gaspar, and that they were living on the property when she (Carolina) married Gaspar; that she visited the Velascos. That at first there was a lumber structure and then later an adobe structure on the property. That the Velascos gave Gaspar $100.00 at first, and another $100.00 “was given to him the best way they could in $5.00 and $10.00”, the last payment of $20.00 being in lumber. Carolina Hidalgo filed a disclaimer in this cause.

In his deposition, Luis Velasco first identified the deed of the property in question from him and his wife to plaintiff, Lechuga, in 1962. He then testified that he bought the property from Gaspar Hidalgo in 1943, for $250.00 paid, in installments, the last being in lumber. He stated that he “built a home and a large corral around it”. He testified that “the house was four rooms, two adobe, one from lumber”, and one of “cardboard”. He stated he installed lights and gas, but hauled his water, because it was too high.

Mrs. Lazaro Padilla was a neighbor of the Velascos. She testified that when the Velascos moved on the property “maybe” in 1952, there was nothing built on the property, but the Velascos built a house, an adobe room and two rooms of lumber, and a fence around the property — a board or picket fence, which encircled part of the property. Mrs. Padilla stated she had known Gaspar Hidalgo for a number of years before she met the Velascos; had known his first wife, Petra, and saw her when the Hidalgos went to visit the Vel-ascos on several occasions, and later Gaspar went to visit the Velascos by himself. She testified that the house had electricity and gas, but no water.

Mr. Ramon Montes testified he lived across the alley from some people he later learned were named Velasco, and he described the adobe house they lived in, the fence on the property, and that he was aware they were living there some time after 1950 until they moved away, but did not recall when that was.

There is other testimony, but without burdening this opinion any further, suffice it to say that the jury was fully justified, from the record, in finding that Luis Velasco and his wife, Maria del Refugio Velasco (under whom appellee Lechuga claims), paid the full consideration for the property in question, i. e., $250.00. Further, that the Velascos, as vendees, took possession of the property, and third, that considering all facts in evidence, including the purchase price of the property, the Velascos placed substantial and valuable improvements on the property, with at least the implied knowledge and consent of the vendor, Gaspar Hidalgo, since he visited on the property from time to time while the Velas-cos were occupying and improving the property. Thus, it is necessary to overrule Point of Error No. 3, and also No. 6, reciting that the court erred in submitting Issue No. 1, in that there is no evidence to show that the elements necessary to relieve a parol sale of land from the operation of the statute of frauds was presented. We believe that the authorities above discussed fully justify an adverse ruling on Point of Error No. 6, which is in accordance with the findings of the jury.

Point of Error No. 4 challenges the action of the court in rendering judgment on the jury finding of adverse possession under the ten-year statute of limitations, based on the fact that Gaspar Hidalgo committed acts of ownership over the property of such a nature as to preclude an adverse possession finding. We find the following statement an appellants’ brief which we take to be made in support of this point of error, although we are not referred to any place in the Statement of Facts where this evidence may be found:

“The evidence further showed that as late as 1948, Gaspar Hidalgo deeded a portion of the property in question to the City of El Paso — this is an act of ownership and will not lend itself to the theory of adverse possession propounded by Ap-pellee.”

The deed referred to was executed by Gaspar Hidalgo and his then wife, Petra Plasencio Hidalgo, on October 2,1948. The deed recited a consideration of $60.00 and stated it was in final settlement between the parties “of all matters in controversy between them arising out of the acquisition of the hereafter described property by the Grantee, including actual or threatened Condemnation Proceedings”; in other words, it was in settlement of an actual or threatened condemnation suit against Gas-par Hidalgo, who undoubtedly at that time was shown on the records as the titular owner of the property. The strip acquired was a drainage ditch across the front of the property, consisting of 2,521 square feet, more or less, or .058 of an acre, more or less. This incident cannot be viewed as a positive act on the part of Hidalgo intended as antagonistic toward Velasco’s claim, but merely as the settlement of an actual or threatened lawsuit brought against Hidalgo in which he, as title holder of record, received an offer of settlement in the amount of $60.00, which was accepted. The record does not show whether this amount was shared with the Velascos, but even if it were not, we cannot view Hildago’s action under the circumstances as irreconcilable with the position of adverse possession taken by Velasco. Point of Error No. 4 is overruled.

The fifth point of error presents the claim that Maria Cristina Hidalgo, Rosalia Hidalgo and Armando Hidalgo were minors against whom adverse possession could not run. The minors were the children of Carolina and Gaspar Hidalgo, and the former testified at the trial in May, 1965 that Maria Cristina was 13 years of age, Rosalia was 12, and Armando Hidalgo was 10 years of age. The suit was filed June 1, 1962. On July 16, 1962 Carolina Hidalgo filed a disclaimer for herself individually, and as next friend of her children, the minors. On September 15,1964 an attorney was appointed guardian ad litem of the minors. On May 20, 1965 the attorney, as guardian ad litem of the minors, filed an answer for the minors to Lechuga’s second amended original petition, but nowhere in such pleading or in any other pleading is any defense urged on the ground of minority. It is the law that as to each minor, limitations did not begin to run until such minor attained his or her majority. Louisiana & Texas Lumber Co. v. Lovell, 147 S.W. 366, syl. 2 (Tex.Civ.App., 1912; n. w. h.). But we feel that the failure to raise this issue in any pleadings waived the point. Lewis v. Saylors, 37 S.W.2d 760, 761, syl. 2 (Tex.Civ.App., 1931; n. w. h.):

“It is insisted by defendants in their brief that the ten-year statute of limitation has not run against all the defendants for the reason that ten years have not expired since some of them reached their majority. From the facts developed upon the trial, this would seem to be true, but the pleadings of defendants do not make the infancy of any of the defendants an issue; and, in the absence of pleadings, infancy will be waived. Any pleading seeking to avoid a plea setting up the statute of limitation should state such facts as show the statute could not have run. Krause et al. v. Hardin et al. (Tex. Civ.App.) 222 S.W. 310.”

See also Morton v. Morton, 286 S.W.2d 702, 707, 708, syl. 11 (Tex.Civ.App., 1955; n. w. h.). It is recited in 37 Tex.Jur.2d 391, 392, § 201, Disabilities:

“One who seeks to avoid the bar of the statute of limitation, which is duly pleaded, on the ground of minority, coverture, or any other exception that will toll limitation or bring him beyond the pale of the operation of the statute, should specifically plead the disability. Disability is said to be similar to a plea of confession and avoidance; if it is not pleaded evidence relative thereto will not be considered, even though it was received without objection. One who sets up disability by way of avoidance should state facts that show that the statute could not have run; he should state when the disability commenced, the extent of its duration, and his plea should be directed to the particular disability sought to be relied on.”

We overrule Point of Error No. 5. Point No. 6 has heretofore been discussed and overruled.

Point of Error No. 7 complains that the trial court allowed testimony of witnesses over objection that such testimony was in violation of the dead man’s statute, Art. 3716, V.A.T.S. We are cited to no instances of such claimed improper testimony, nor were we able to find any by a careful review of the record. This point is overruled.

Having disposed of all appellants’ points and finding no error, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    ABC RENDERING, INC., et al., Appellants, v. Aubrey Joe MARTIN et ux., Appellees.
    No. 4536.
    Court of Civil Appeals of Texas. Waco.
    Oct. 6, 1966.

      Turner, Rodgers, Winn, Scurlock & Terry, Frank J. Scurlock, James L. Armour, Dallas, for appellants.
    McClellan & Salter, Gatesville, for appel-lees.
   OPINION

McDONALD, Chief Justice.

Plaintiffs Martin and wife, alleging commission of a nuisance, sued defendants ABC Rendering, Inc. and Linn Mark Company, in Coryell County for injunction and damages. Defendants filed pleas of privilege to be sued in Harris County; plaintiffs controverted; and after hearing the trial court overruled such pleas of privilege. Defendants appealed to this court from the orders of the District Court overruling their pleas of privilege. Pending the appeal in this court, plaintiffs filed motion in the trial court to take a nonsuit. The trial court granted such motion and dismissed the cause without prejudice to the rights of plaintiffs, and taxed all costs against plaintiffs.

Plaintiffs have made motion in this court to dismiss defendants’ appeal from the order overruling pleas of privilege on the ground that the questions presented by such appeal are moot.

During the pendency of appeal from order overruling pleas of privilege, the trial court possesses authority to permit non-suit at instance of the plaintiff, since the power of the trial court to try the case on the merits was not suspended during pen-dency of appeal from such order. And the question of whether the trial court erred in overruling the pleas of privilege is now moot in this court. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Gladden v. Thurmond, CCA (n. w. h.) 77 S.W.2d 703; Knapp v. Knapp, CCA (n. w. h.) 375 S.W.2d 359; Bray v. Compton, CCA (n. w. h.) 376 S.W.2d 436.

Motion granted and appeal dismissed. Costs taxed against appellees.

Appeal dismissed.


author: COTTEY, Special Judge.

text:
    Fern KELLEY, Administratrix of the Estate of John Lee Kelley, deceased, Plaintiff-Respondent v. Frank HUDSON, Defendant-Appellant.
    No. 8458.
    Springfield Court of Appeals. Missouri.
    Sept. 19, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct 11, 1966.

      Robert E. Seiler, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for defendant-appellant.
    Jack P. Steinle, Aurora, for plaintiff-respondent.
   COTTEY, Special Judge.

Plaintiff had judgment for damages for personal injuries allegedly suffered through defendant’s negligence, and defendant appeals. It is not contended that the award was excessive; liability is the disputed issue. Pending the appeal plaintiff died and his administratrix has been substituted as respondent in his stead, but for convenience we shall continue to refer to him as plaintiff in the cause. We have concluded that a retrial must be ordered for reasons presently to be discussed, and it is therefore necessary to set out only the facts that serve to introduce that discussion.

Defendant’s automobile and another in which plaintiff was riding as a passenger met at the crest of a hill on a narrow road while traveling at disputed speeds estimated from “50 or 55 miles an hour” to “70 or better.” Each claimed that his vehicle was in its own proper lane of traffic, each claimed that his adversary’s vehicle was partially across the center line in the wrong lane of traffic and that it continued to approach in substantially that position with no decrease in speed, and each claimed that by reason of the other’s negligence in those particulars he had been obliged to veer from the traveled portion of the roadway in order to avoid the impending collision. A collision between the two vehicles was actually averted, but in the course of the maneuver plaintiff’s automobile went out of control and overturned, injuring him.

The only eyewitnesses were the loyally partisan occupants of the two cars. The even balance of their contradictions spurred a quest by both sides for some corroborative circumstance, however slight, that might tip the scale in favor of the deserving litigant. The search centered around defendant’s assertion that to meet the emergency created by plaintiff’s encroaching car he had been forced to swerve off the pavement to his right, and had left tire marks on the shoulder and in the adjacent ditch to prove it. These, predictably, were clearly observed by defendant’s witnesses, but not a trace of them could be discovered by plaintiff’s. Obviously, if their existence could be independently established, or, by the same token, convincingly disproved, the result would be a material aid to the jury in determining where the truth lay.

The logical arbiter of that dispute would have been the patrolman who inspected the scene of the accident shortly after the occurrence; but, unfortunately, he had died. Neither of the parties had been present when the officer’s inspection was made, but both, in separate and private conversations at the hospital later that day, had told him their versions of the affair and he had thereafter made an official report which was in evidence. The report indicates that the trooper had treated the occurrence as a one-car accident, involving only the automobile in which plaintiff had been riding. That automobile, described as “Car #1,” is the only one sketched on the diagram attached to the report; the marks left by it in the course of the gyrations that ended in its overturn are the only ones shown; its driver is the only one for whom any biographical data is listed, or from whom any recorded statement was taken; in the space provided for data on “Car #2” is written the word, “none”; and defendant’s name appears in the report only as a “witness.”

One might suppose that such a report, mute and blank insofar as the existence of the disputed tire marks was concerned, could hardly be construed as decisive of that question; but that would be to reckon without the ingenuity of counsel, for a demonstration of which we move forward the sequence of this account to plaintiff’s closing argument. There plaintiff’s counsel (not his counsel on this appeal, however), with the report in his hand, gave the jury this explanation of it: “If Frank Hudson’s tire marks were out there at the scene of the accident, those marks would be on this report. * * * Ladies and gentlemen, the trooper was there at the scene, and if Frank Hudson’s tire marks were there, those marks would show up on this report. As I said before, I never saw a highway patrol report that didn’t show the marks made by both cars if both cars made marks. * * * Let me tell you about this patrol report. This is important. If any skid or tire marks were there, regardless of who they were made by, they would show on this patrol report. If they were there at all, they would be shown on the report.” At the conclusion of the argument the jury made express inquiry for the report and were permitted by the court to take it to the jury room, presumably for further study in the light of counsel’s analysis. A ten-man verdict ensued.

The argument acknowledges the importance of the evidence that pointed and sharpened it. We attach the same importance to the method by which that evidence was shaped to its purpose. On direct examination defendant testified to the tire marks that tended to substantiate his version of the accident; but against the background of plaintiff’s witnesses’ flat denials, whatever he could have said on the subject was bound to be liable to the normal discount for bias and interest, and, as the argument discloses, only corroboration by the trooper could have dispelled the doubt and made his testimony acceptable to the jury at face value. The trooper’s death precluded a direct approach to that problem; the hearsay rule barred any alternative. But counsel for plaintiff was not satisfied with the advantage which had thus accrued to his client. On cross-examination he set out to develop and enlarge it, both as it affected the disputed fact issue and as it might be brought to affect defendant’s credibility; and this exchange of questions and answers ensued:

“Q. You stayed there at the hospital and talked to the trooper?
“A. Yes; when he came in the door I talked to him, and then later we sat down in the car and I talked to him.
“Q. And did you tell the trooper where your skid marks were out there at the scene of the accident?
“A. I told him some were there. They wasn’t skid marks, but they was just tracks where I went off of the blacktop.
“Q. And you told him all about it ?
“A. All about what? All about the marks ?
“Q. Told him all about where you were when the two cars passed?
“A. Well, I asked him if he had seen any marks out there.
“Q. Frank, did you tell the trooper this other car was on your side of the road when you saw him, or when you met and passed him?
“A. No, I don’t think so. He knew I had to get over — (interrupted).
“Q. The report does not show it. You never did, Frank, tell the trooper that this car was on the wrong side of the road?
“A. No, I don’t really think so. My marks being there, it — (interrupted).
“Q. You did not tell the trooper that your car was on the wrong side of the road there that day?
“A. No, sir.
“Q. And he didn’t see any tire marks made by your car out there, did he?
“A. Oh, yes, sir, he did. He- — (interrupted) .
“Q. And you told the trooper you didn’t know if you were involved in the accident or not?
“A. That is right. I made no contact with the Kelley car.”

By that interrogation the jury was invited to gather the true import of the conversation from one side of it only. On redirect examination counsel for defendant sought to supply the omission:

“Q. Mr. Moore asked you if the highway patrolman saw the marks from your car out there, and I will ask you if the highway patrolman stated — (interrupted).”

At this point plaintiff’s counsel objected, apparently on the theory that whatever the patrolman might have said would be hearsay, although that ground was not specified. The objection was sustained and an offer of proof, that in the course of the same conversation the patrolman had stated to defendant that he had seen his tire marks on the shoulder of the highway at the scene of the accident, was rejected. That was error.

One may not elicit from his adversary, to his own advantage, those parts of a conversation in which the adversary was the speaker, and then withhold from the jury, to his adversary’s disadvantage, the responses of the other party to the conversation which fill out and explain the sense of it, even though such responses are hearsay. Half-truths and false impressions go often hand in hand, and the law eschews them both; hence the rule, that whenever an improper subject of inquiry has voluntarily been broached by one party, and such of its contents drawn off as serve to discredit the other or disparage his case, the relevant remainder may be examined, to the end that the sample produced may be more dependably analyzed in the light of the whole truth. 1 Wigmore on Evidence (3rd Ed.), § 15, 1.c. 307; Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780, 785-786; Sigman v. Kopp, Mo., 378 S.W.2d 544, 547; Eddings v. Keller, Mo., 400 S.W.2d 164, 173; Corley v. Andrews, Mo.App., 349 S.W.2d 395, 403; Ramos v. Ramos, Mo.App., 232 S.W.2d 188, 198; 31A C.J.S., Evidence § 190, p. 509 et seq. The party who opens up the improper subject is held to be estopped to object to its further development, Larabee Flour Mills v. West Plains Com’n Co., 216 Mo.App. 257, 262 S.W.2d 389, 391, or to have waived his right to do so. Dorn v. St. Louis Public Service Co., Mo.App., 250 S.W.2d 859, 865. The applicability of the rule to cases in which part of a conversation has been brought out and the remainder is offered is said to be “elementary.” Schnurr v. Perlmutter, Mo.App., 71 S.W.2d 63, 67; Berry v. Adams, Mo.App., 71 S.W.2d 126, 134; Rodgers v. Schroeder, 220 Mo.App. 575, 287 S.W. 861, 864; 88 C.J.S., Trial, § 116, p. 236. And the denial of the right prescribed by the rule, when it results in substantial prejudice to the party deprived of it, exceeds the allowable bounds of judicial discretion and is reversible error. Dorn v. St. Louis Public Service Co., supra, 250 S.W.2d at 865-867; Young v. Dueringer, Mo.App., 401 S.W.2d 165, 167-168. We think that is the case here. The rule was violated, and the prejudice resulting to defendant from the exclusion of his proffered evidence was manifest and material; the offer shows it, the argument confirms it, and the ordinary understanding of fair play admits of no other conclusion.

The search for a corroborative detail, having led to one error, led then to another. Plaintiff had submitted to a physical examination at the hands of a doctor selected by defendant, and some reference to the fact was made in the course of plaintiff’s testimony. Defendant did not call the doctor. His failure to do so was a permissible subject of argumentative comment, of course, insofar as it tended to confirm plaintiff’s own appraisal of his injuries. Hamilton v. Ross, Mo., 304 S.W.2d 812, 816. But in his closing argument counsel marked up the value of the incident considerably beyond its legitimate worth. He said (italics ours) :

“Now there was evidence that the plaintiff, Lee Kelley, will suffer some ill health the rest of his life as a result of this accident, and the defendant’s lawyers had Lee examined by their doctor; but why would they have him examined by their doctor to try to show he wasn’t hurt * * * if they were not worried about Frank Hudson being at fault; and they would have you believe — (interrupted).
“Mr. Seiler: We object. This is not proper argument.
“The Court: Overruled.
“[Counsel, continuing]: Why would they have Lee Kelley examined by a doctor of their choice if they weren’t worried about Frank Hudson being at fault for this accident, or at least partially at fault? Don’t let them make you think he didn’t have anything to do with this accident, but that he was just a Good Samaritan in going back.”

Counsel for plaintiff on this appeal quite frankly says, “Little effort will be made here to defend the merits of the argument.” But the censure of it implicit in that concession is, in our opinion, indulgently mild. Defendant had every right to avail himself of the opportunity of having plaintiff examined by a doctor of his own choice; prudence suggests it and practice approves it as a legitimate step in the pre-trial preparation of every personal injury action. But it is a step that is always and exclusively directed to the issue of damages; and never nor possibly can it reflect on the issue of liability. By no stretch of imagination can it be construed as an admission of “fault,” or a “worry” about being at fault. To imply the contrary is to misrepresent the fact and mislead the jury. We gather that plaintiff’s counsel concedes as much, at least tacitly; but he advances two propositions that must be disposed of before the point can be ruled:

1st: That the argument was in reply to, and in retaliation for, a preceding argument by counsel for defendant in which he characterized his client as a “Good Samaritan.” This, on the strength of defendant’s testimony that after the two automobiles had cleared each other and he had proceeded on his way, he glanced in his rear view mirror, saw plaintiff’s car “skidding across the highway just over the crest of the hill,” apprehended that it might be out of control, turned back to investigate, found the wreck, assisted in removing plaintiff from it, and drove him to the hospital. Counsel capitalized those facts, declared some dividends in the way of inferences from them, and entered the profit to the credit of the Good Samaritan. Whether the precept of the parable exactly fits the case is not of prime concern. Certain and obvious it is that counsel’s reference to his client as a Good Samaritan no more amounted to an admission of “fault,” and no more invited retaliation on that head, than did the ministrations of the Samaritan himself to the victim of the thieves’ depravity.

2nd: That no sufficient objection was made. It is true that the objection was as general as one can well be. Without presuming to formulate a rule that either has been, or ought to be, followed in every instance, it may nevertheless not be amiss to analyze the decisions of the courts in the three sets of circumstances in which this problem has arisen, from which it will be found: (a) that where no objection was made, it has usually been held that nothing was preserved for review, Enyart v. Santa Fe Trail Transp. Co., Mo., 241 S.W.2d 268, 270; Kuehn v. Hahn, Mo., 380 S.W.2d 445, 451; Clark v. McKeone, Mo., 234 S.W.2d 574, 577; O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904, 907; Birmingham v. Coen, Mo., 320 S.W.2d 509, 510; Reger v. Nowotny, Mo., 226 S.W.2d 596, 598; (b) that where a mere general objection was made, the trial court’s discretion in disposing of it has usually not been disturbed, Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 44-46; Donley v. Hamm, Mo., 98 S.W.2d 966; Williams v. Thompson, Mo., 251 S.W.2d 89, 93; Propst v. Capital Mut. Ass’n., 233 Mo.App. 612, 124 S.W.2d 515, 525; Ternetz v. St. Louis Lime & Cement Co., Mo., 252 S.W. 65, 71; Collins v. Cowger, Mo., 283 S.W.2d 554, 560-561; Lindsey v. P. J. Hamill Transfer Co., Mo.App., 404 S.W.2d 397, 399-400; but (c) where the argument was so palpably unfair as presumptively to have fostered a miscarriage, of justice, a general objection has usually been held sufficient to alert the trial court to the error and preserve it for review. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 428; Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454, 458; Leaman v. Campbell, 66 Exp. Truck Lines, 355 Mo. 939, 199 S.W.2d 359, 366; Williams v. Columbia Taxicab Co., Mo.App., 241 S.W. 970, 972-973; Monroe v. Chicago & A. R. Co., 297 Mo. 633, 249 S.W. 644, 646; Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807, 813-815. The latter principle is the one we invoke here. It seems to proceed from the premise that where the argument can have no conceivably proper purpose, and is obviously false and manifestly prejudicial upon every consideration and for every reason, it would be labor lost to require a technically precise objection to it; indeed, to insist upon it in those circumstances, and to let the event of the lawsuit abide it, would surely provoke the Scriptural rebuke of straining at a gnat and swallowing a camel. And, having ruled that the objection in this case was as sufficient for the purpose as though it had been “squarely made,” we are constrained to rule that it was unnecessary to repeat it seconds later when counsel, encouraged by the court’s approval of the offending statement, gave the jury a stinging repetition of it; this, by analogy to cases dealing with the same point in matters of evidence. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 648-649, 157 A.L.R. 598; Borgman v. Boten, Mo.App., 225 S.W.2d 360, 362.

In this court the case has been briefed and presented on both sides with a degree of professional skill that merits, and here receives, our forthright commendation.

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

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

TITUS, J., not participating because not .a member of the Court when the cause was submitted.

      . Submitted with the transcript is an affidavit by defendant’s counsel asserting that his objection was considerably more detailed, but that through error in the stenographic notes of the trial his specifications were omitted. A counter-affidavit, disputing the omission, has been filed by plaintiff’s counsel. We may not notice either. Hendershot v. Minich, Mo., 297 S.W.2d 403, 410; Pretti. v. Herre, Mo., 403 S.W.2d 568, 569.


author: TITUS, Judge.

text:
    Patricia Ann HELMKAMP, a Minor, by Ivan Helmkamp, Guardian and Curator, Plaintiff-Appellant, v. The AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a corporation, Western Fire Insurance Company, a corporation, and Karen Sue Fleming, a Minor, Defendants-Respondents. Patricia Ann HELMKAMP, a Minor, by Ivan Helmkamp, Guardian and Curator, Plaintiff-Respondent, v. The AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a corporation, Western Fire Insurance Company, a corporation, Defendants-Respondents, Karen Sue Fleming, a Minor, Defendant-Appellant.
    Nos. 8553, 8554.
    Springfield Court of Appeals. Missouri.
    Oct. 3, 1966.

      Karl W. Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for plaintiff-appellant, Patricia Ann Helmkamp.
    B. H. Clampett, R. A. Ellis, Jr., Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-respondent American Family Mutual Insurance Co.
    Edward G. Farmer, Jr., James E. Brown, Joplin, for defendant-respondent, Western Fire Insurance Co.
    Pinnell & Monroe, Monett, for defendant, Karen Sue Fleming.
   TITUS, Judge.

This reconnoitering action was instituted to shanghai two insurance policies aboard a $100,000 damage suit now at anchor and ready to set sail in the Circuit Court of Lawrence County, Missouri. The damage suit defendant called upon the two respondent insurance companies to defend her in that action and to pay any adverse judgment that might be rendered. When the companies declined the honor, she then instituted the present declaratory judgment procedure to determine the disputes among the parties.

Following transfer of this case from the Circuit Court of Lawrence County, the erudite judge of the Circuit Court of Newton County decided the matter without the aid of a jury and the disappointed parties (the damage suit plaintiff and defendant) have perfected their separate appeals to this Court which we have consolidated for consideration. Although the damage suit petition claims $100,000 in damages, that suit is still pending and the pleadings in our instant case do not request money judgments. Therefore, short of surmise and conjecture, we have no way of knowing what the money judgment, if any, will be in the damage suit or the amount of monetary interest either appellant might acquire under the policies, even assuming their positions are correct. Consequently we have jurisdiction of this case on appeal.

The Lutheran Church and Lutheran School are on opposite sides of Highway H as it runs north and south through the corporate limits of Freistatt, Missouri. The home of Oscar and Mable Bremer, husband and wife, and their son Robert (sometimes called "Bobby”), is located about one-half mile north of the church and school. Mr. and Mrs. Bremer were title owners of the 1960 Ford automobile involved in the accident in question. This vehicle was described in the automobile liability insurance policy issued to Oscar Bremer, as the sole named insured, by The American Family Insurance Company, a respondent here and hereinafter called “American.” The omnibus clause in American’s policy designated “persons insured” to be “[1] the named insured,” and “[2] any other person using such automobile with the permission of the named insured, provided his operation or, if not operating, his other actual use thereof is within the scope of such permission.” The term “named insured” was defined to mean “the individual or husband and wife named as such in the declarations, but if only one individual is named, the term ‘named insured’ also includes his spouse if a resident of the same household.”

Patricia Ann Helmkamp, minor daughter of Ivan Helmkamp, is (the plaintiff-appellant here and the damage suit defendant in the action pending in the Circuit Court of Lawrence County. Western Fire Insurance Company, hereafter called “Western” and a respondent in this Court, had issued its automobile liability insurance policy to Ivan Helmkamp and, in respect to “Use of Other Automobiles,” afforded coverage to “any relative of such named insured or spouse.” However, this coverage did not apply “to any automobile * * * used without the express or implied permission of the owner.” In this case, Western’s liability, if any, “shall be excess insurance over any other valid and collectible insurance.”

Karen Sue Fleming was a minor passenger in the 1960 Ford driven by Patricia Helmkamp at the time of the accident. She is the damage suit plaintiff and the defendant-appellant here. Wilfred L. At-well was local agent for American. Our decision in this case has made it unnecessary to determine whether or not Mr. At-well possessed all the attributes of agency to bind American with his words and conduct. Likewise, we do not undertake to delve into the authorities cited us by appellants in support of their urging that parol evidence is admissible in a reformation case to prove the true intentions of . contracting parties where ambiguity or mutual mistake exist, or that, under proper circumstances, an oral contract of insurance can be enforced. Without deciding these matters in relation to this case, we have simply assumed the agency, accepted at face value all the oral testimony offered, and acknowledged the general principle that oral insurance contracts are possible when proven legally.

The Walther League, we are told, is a religious organization of the Lutheran Church for young people and that youngsters commence participating in the league at about the age of fourteen years. League meetings in Freistatt are held in the Lutheran School most every Wednesday commencing at 8 P.M. and concluding around 10:15 or 10:30 P.M.

Robert Bremer, who was sixteen years ■old on January 23, 1963, and Patricia Helmkamp, a junior in high school that same year, had been acquainted since they were third grade classmates in the Lutheran School. Both were members of the Walther League, but had never “dated,” and Robert had never taken Patricia to or from a meeting in the Bremer family car. While their parents were acquainted, they did not visit socially, and to her recollection Patricia had been a guest in the Bremer home on only one occasion, which was to attend a birthday party when she and Robert were in the third or -fourth grade.

When Robert secured his driver’s license in about March of 1963, his parents did not “turn him loose” with the 1960 Ford. Rather, they accompanied him while driving to observe his ability, and it was a month or a month and a half thereafter before he was permitted to take the car alone to a Walther League meeting. In reference to taking the Ford to League meetings, Mr. Bremer told his son “I expected him to take the car, park it unless he had a girl friend to take home.” Mr. Bremer further admonished Robert that “I expected him to tell us where he was going, if he took the car, and be in at eleven. * * * I told him not to do any unnecessary driving, to be careful and not drive fast, and I expected him to take care of the car. That’s what I told him.” Mr. and Mrs. Bremer never discussed with Robert the matter of allowing, or not allowing, others to drive the family automobile. “I never thought of it, and it never dawned on me.” Robert was permitted to take the Ford alone less than “the average of twice a week” although “it was kind of an understanding” he could take it to Walther League.

Patricia Helmkamp testified that it “was not at all unusual,” either before or after the Wednesday league meetings for one “kid” to drive another “kid’s” car and this driving would be “either around the block or south to the first corner or north to the corner.” Robert asserts that before the date of the accident he had never given anyone permission to drive the Bremer car. A young lady witness said she had driven the Ford one time with Robert’s permission, but could not state when this transpired. In any event, before the accident date Patricia had never operated the Bremer car and neither Mr. Bremer nor Mrs. Bremer had any reason to believe she would ever drive it or that Robert would let anyone drive the car when it was entrusted to him. What the practices of the “kids” may have been at League meetings in operating automobiles was entirely unknown to Mr. and Mrs. Bremer.

On Wednesday, November 27, 1963, Robert announced he was going to Walther League. His father told him to “have a good time, be careful, be a good boy, and be in at eleven.” Robert departed home driving the 1960 Ford and parked it in front of the school twenty to twenty-five minutes before eight. While talking with some friends, Patricia approached and asked Robert for the keys to the Bremer car. Robert recalled Patricia wanted the car to “drive around the block,” but Patricia has no recollection of any restrictions being placed on where she might operate the Ford and says she did not tell Robert where she intended to go. Patricia just “put on that womanly charm” and Robert tossed her the keys. Accompanied by Karen Fleming and three other girls, Patricia got into the Ford, circled the block and returned to in front of the school. By that time the Ford had “caught up with” a vehicle being driven by an acquaintance. Patricia, instead of stopping in front of the school, followed this vehicle north on Highway H, and when the Ford was one and three-fourth miles north of the school it became involved in the accident from which the damage suit ensued.

The policy issued Oscar Bremer by American was to be effective for an initial period of six months from March 17, 1962, to September 17, 1962. The policy was renewable for successive six month periods upon payment of premium notices, and had been renewed from September 17, 1962, to March 17, 1963, from March 17, 1963, to September 17, 1963, and from September 17, 1963, to March 17, 1964. Oscar Bremer had purchased the Ford and paid all the insurance premiums without any financial assistance from his son, Robert.

After Robert became sixteen and about the time he was to secure his driver’s license, Oscar Bremer “called” Mr. Atwell. Because the testimony regarding this “call” is short, we attempt to quote all that is pertinent:

Oscar Bremer: “Q. Mr. Bremer, at the time Bobby became 16 years of age did you notify your insurance agent to that effect? * * * A. I most certainly did * * * Q. Did you tell him you wanted Bobby on the policy just like you and your wife? Is that what you told him? A. Yes, sir * * * Q. Do you mean when this boy became 16, an additional premium was charged you on your contract for insuring this boy? A. Yes, sir. Q. And when did this occur? A. I notified him about a week or so before the boy was going to apply for his driver’s license, which I thought was the necessary thing. Q. And was this before the accident? A. Oh, yes * * * Q. And at that time [after the accident] did you tell your agent that your car was being driven by Patricia Helmkamp? A. Yes, sir * * * Q. And at that time did not your agent tell you that you were covered under your liability insurance and under your collision coverage? A. Mr. Atwell didn’t make any statement to that effect because he didn’t know.”
Mr. Atwell: “Q. So that a new declarations was issued then, as I understand it, only when, one, there is a change of car; or, secondly, when there was a change of coverage or premium? A. Or classification. Q. In this instance on plaintiff’s Exhibit Number 3 [declarations dated April 1, 1963, issued by American and sent to Mr. Atwell for signing and delivery to Oscar Bremer] can you tell by looking at it what would have caused that to be issued? A. In my judgment it would be because of adding the young son as a driver. Q. And for that you simply charged an additional premium ? A. That’s right * * * Q. On the face of the declarations the named insured is exactly as it had been before? A. That’s right * * * Q. Do you happen to recall a conversation with Mr. Bremer at the time Bobby became sixteen or was close to it? A. Not entirely but * * * Q. Do you remember whether or not Mr. Bremer told you at that time that he wanted Bobby insured like he and his wife were? A. If I am not mistaken, that’s what Mr. Bremer said. He called me, wanted me to add his boy to the policy.”

Following Mr. Bremer’s “call” to Mr. Atwell, the latter, by a memorandum dated April 1, 1963, wrote to American: “Mr. Bremer has a boy that is now 16 years old and will drive the car about 5% of the time his name is Robert F. Bremer he was 16 the 23rd of Jan. he looks like a good risk.”

After receipt of this memorandum, American issued the “Declarations” dated April 1, 1963, to cover the period of April 1, 1963, to September 17, 1963. An additional $30 premium was charged Mr. Bremer, which he paid. The “Declarations” did not undertake to change the-name of the “named insured,” the policy period, the amount of coverage or the description of the automobile. American contends the “declarations” was issued to indicate a classification change had been made because a “youthful driver” was to be added to the list of expected operators of the vehicle and that the added premium was charged for this reason.

Patricia Helmkamp’s petition in this case contained allegations as to the policies of both American and Western in the manner which we have recited generally, and stated that American had refused to defend the damage suit because Patricia did not have Oscar Bremer’s permission to drive the Ford, or if she did have such, her use thereof was not within the permission granted. The petition also noted Western’s refusal to defend upon its contention that if American’s position was correct, then Western afforded no coverage, but if American was wrong, then Western’s policy only provided excess coverage. Preceding the prayer, paragraph 9 of the petition avers: “That under the terms and provisions of ‘American Family’ policy plaintiff is entitled to have ‘American Family’ take over the defense of the action filed by Karen Sue Fleming, to pay any judgment that may be rendered up to the limits of its said policy, and that ‘Western’ is liable under its policy, up to the limits of its policy for any excess judgment that may be rendered over and above the limits of the ‘American Family’ policy.”

Appellant Karen Sue Fleming insists the trial court erred in overruling her motion for judgment on the pleadings against Western. The motion, as written, asserts Western had admitted paragraph 9 of plaintiff’s petition, quoted supra (as well as admitting the first eight paragraphs thereof), and moved the court to enter judgment in her favor against Western “decreeing that * * * Western * * * is liable under its policy * * * up to the limits of said policy for any excess judgment that may be rendered in favor of said Karen Sue Fleming and against Patricia Ann Helmkamp * * * over and above the limits of the American * * * policy.”

A motion for judgment on the pleadings is not favored by the courts. 41 Am.Jur., Pleading, Sec. 336, p. 521. The word “pleadings” is plural, and the motion cannot be considered as made on the pleadings where it is made on one pleading alone. 71 C.J.S. Pleading § 425, p. 864. The court, when confronted with such a motion, considers the whole record, and before such a motion may be granted all the averments in all the pleadings must show there exists no material issue of fact and that simply a question of law is presented. 71 C.J.S. Pleading § 427, pp. 870-871, and § 429, p. 872. “In other words, the motion cannot be sustained, unless under the admitted facts the moving party is entitled to judgment without regard to what the findings might be on the facts upon which the issue is joined.” Like a demurrer, a motion for judgment on the pleadings admits only facts well pleaded but not conclusions or the pleader’s construction of the subject matter. Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936, 938.

It is obvious the allegations of paragraph 9 of the petition were mere conclusions of the pleader and an effort to summarize the ultimate contentions of the plaintiff. Admission of such conclusions do not justify favorable ruling on a motion for judgment on the pleadings. Several issues of fact were made by all the pleadings that could not be determined under the motion for judgment on the pleadings. The trial court was correct in overruling that motion.

Patricia Helmkamp contends there was an agreement between Oscar Bremer and Mr. Atwell, as agent for American, that Robert Bremer was to be added as a “named insured” on American’s policy and that in her declaratory judgment action the trial court should have reformed the insurance contract to reflect the “true” agreement and declare Robert to be a named insured. In her pleadings, Karen Fleming declares there was an oral contract of insurance making Robert a “named insured” and that such oral contract should be enforced. Patricia and Karen urge a further finding that Patricia had the implied permission of Oscar Bremer to drive the Ford at the time of the accident, it being admitted she did not have his express consent. If appellants were successful in establishing Robert as a “named insured” in American’s policy, then Patricia, who had Robert’s permission to drive the Ford, would be an insured under that policy, provided her use thereof was “within the scope of such permission.” Proof of this would not necessarily serve to corral Western, because its “Use of Other Automobiles” provision applied only if Patricia had the “implied permission of the owner” (our emphasis) of the Ford. Therefore, proof of Oscar Bremer’s implied permission was necessary to complete the coup as to both American and Western. The trial court found against Patricia and Karen on all scores which means that we must “review the case upon both the law and the evidence as in suits of an equitable nature,” being mindful that “[t]he judgment [of the trial court] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” While we are interested in the reasons related by the trial court for its findings, our chief concern is whether that court’s ultimate result was correct.

Although the tines with which each appellant probes are bestowed with different appellations, their purposes are synonymous. A party claiming reformation must, ex necessitate, prove the existence of a prior or preceding agreement between the parties just as a party claiming an oral contract must prove such an agreement was made. To qualify a court to reform a written instrument the evidence must be clear, cogent, convincing, and leave no room for reasonable doubt. The evidence “must go beyond a mere preponderance of the testimony and remove all reasonable doubt. * * * Or, to express it in another way, the proof to justify such action on the part of the court must be so clear, convincing, and complete as to exclude all reasonable doubt in the mind of the chancellor.” Parol contracts of insurance likewise must be clearly and convincingly established or the court will refuse relief or remedy, whether at law or in equity. 1 Couch on Insurance 2d, Sec. 14.-21, pp. 598-599, and cases there cited. While it is not necessary to prove the parties had agreed upon any particular language to be used in the contract, nevertheless the evidence must reveal an agreement to accomplish a particular object and must be sufficiently definite to enable the court to determine the exact meaning and fix definitely the legal liabilities of the parties.

Testimony upon which appellants rely to reform the policy or to induce belief an oral contract was made adding Robert Bremer as a named insured to American’s policy is exceptionally limited. The only utterances to this point are that Oscar Bremer answered “Yes, sir,” to the question “Did you tell him [Mr. Atwell] you wanted Bobby on the policy just like you and your wife?” Mr. Atwell, responding to a similar question said: “If I’m not mistaken, that’s what Mr. Bremer said. He called me, wanted me to add his boy to the policy.” The words “named insured,” in reference to Robert, were never spoken or written. The trial court was correct in not accepting these brief statements as constituting clear, cogent, and convincing evidence of a definite and exact agreement Robert was to be a named insured on the contract.

Appellant Karen Sue Fleming argues it was impossible for Robert to be insured in the same degree as Mr. and Mrs. Bremer unless he too was a named insured. This urging is not necessarily so, for when Robert operated the Ford with the permission of one or the other of his parents he would be insured to the same degree as his mother and father. Appellant Patricia Helmkamp directs attention to the fact that under the omnibus clause in American’s policy anyone, including Robert, who drove the Ford with the permission of Oscar or Mable Bremer would be an assured under the policy whether or not the April 1, 1963, declarations had been issued or the $30 charge had been paid. The desired inference is the $30 was charged and paid to make Robert a named insured. While courts may not have yet taken judicial notice that insurance rates increase when a youthful driver commences operating the family automobile, it is a well-known shocking reality to the premium-paying parent of every sixteen year old American male who obtains an operator’s license. Oscar Bremer says he contacted Mr. Atwell after Robert was sixteen and was about to apply for his driver’s license because “I thought [that] was the necessary thing.” Mr. At-well further asserted the April 1, 1963, declarations was issued “because of adding the young son as a driver” (emphasis ours) and other testimony offered by American indicates this was the reason the $30 was charged and the declarations was issued. We cannot, therefore, disagree with the apparent belief and finding of the trial judge that the $30 was charged because Robert was to start driving the Ford, rather than because of any intention to make him a named insured. One obvious goal sought by appellants is to endow Robert with authority to permit the family car to be driven by anyone of his selection irrespective of the desires or knowledge of his parents. In light of the bridle Mr. and Mrs. Bremer maintained on their son and his use of the Ford, it is most doubtful appellants’ interpolations were among Oscar Bremer’s intentions when he conversed with Mr. At-well.

Appellant Helmkamp asserts “The only reason Robert Bremer was not named in the declarations was because the agent failed to make that request in his letter to American Family,” but the text of the memorandum would require some stretch of the imagination to assume Mr. Atwell understood a sixteen year old boy who did not then possess a driver’s license and who was going to drive the Ford only “about 5% of the time” was to become a named insured on the policy. It is also to be noted the April 1, 1963, declarations (which did not effect an addition of Robert to the policy as a named insured) was sent to Mr. Atwell, who in turn signed it and forwarded it to Oscar Bremer. Neither Mr. Atwell nor Mr. Bremer voiced any complaints as to the form or effect of the declarations at that time; neither was any protest made when the policy was renewed on September 17, 1963. It was not, as far as the record reveals, until after the November 27, 1963, accident, and until after the $100,000 damage suit was suggested or filed that any formal effort was made to make Robert a named insured.

Equally, important, we feel, is the fact the transcript reveals Oscar Bremer told Mr. Atwell he “wanted” his son on the policy just like he and his wife, or “wanted” Mr. Atwell “to add his boy to the policy.” The curtain then falls, so we know not what, if any, further dialogue was had. That a contract consists of an offer and an acceptance, or, in other words, a meeting of the minds, is so elementary as to make unnecessary any citations on the subject. We do not here propose to determine whether what Oscar Bremer “wanted” constituted an offer, a proposal, or an invitation. Regardless, the record is void as to any acceptance on the part of Mr. At-well, any assurance on his part that what Mr. Bremer “wanted” would be done, or any expression that would indicate either he or American would accede to the wants and desires of Oscar Bremer. The memorandum of Mr. Atwell to American and the conduct of the parties subsequent to the reported conversation do not supply the deficit. The burden was on appellants to prove the existence of a contract, and ex necessitate, they were required to prove both an offer and an acceptance. We do not find proof of such elements in the record.

Cases cited by appellants are not pertinent to the conclusion they would incite. Chailland v. M. F. A. Mutual Insurance Company, supra, Mo. (En Banc.), 375 S. W.2d 78, involved a Mr. Smiley who, in need of insurance to secure an I. C. C. permit for operation of his tractor-trailer unit, went to defendant’s agent, explained what kind and amount of coverage was needed, was told the amount of the premium, paid a part of the premium, and was assured by the agent he “was insured.” The Supreme Court, agreeing with the trial court, held the evidence “convinced” the court an oral contract and all the elements thereof had been amply proved. Voss v. American Mutual Liability Insurance Co., Mo.App., 341 S.W.2d 270, unlike the matter at hand, was a case where “there can be no doubt that plaintiff offered substantial evidence of an agreement between herself” and the agent that plaintiff was insured pending issuance of the regular policy of insurance. Wackerle v. Pacific Employers Insurance Co. (CA8, Mo.), 219 F.2d 1, 52 A.L.R.2d 814, also cited by appellants, is a case involving a driver-exclusion rider issued subsequent to the inception of the policy. The rider was held void for lack of consideration.

Edwards v. Zahner, Mo., 395 S.W.2d 185, is cited to us by appellants, although it appears contrary to their contentions. In this reported case Robert B. Zahner entered into a written agreement with Airway Flight Service, Inc., to lease a certain airplane, with option to purchase, for a stated consideration. Zahner paid the premium on the insurance in question by reason of it having been included in the total sum he was to pay as evidenced by his promissory note. The insurance policy specified Airway Flight Service, Inc., as the named insured, and applied “when the aircraft is in flight, only while being operated by the following pilot[s] : Any Pilot employed by the Named Insured and who holds a valid Commercial Pilot Certificate.” Zahner flew several charter flights as an employee of Airway Flight Service, but at the time of the accident he was on a charter flight of his own. Thereafter, reformation of the policy was sought to make Zahner a named insured under the policy. In affirming the circuit court ruling against reformation, the Supreme Court said: (1. c. 190-191) : “The burden of proof in this reformation case was upon appellant to show by clear and convincing evidence that the agreement of the parties was that Zahner was intended to be a named insured and covered at all times under the liability portion of the policy. * * * The difficulty here is with the sufficiency of appellant’s proof as to what McAnally [the agent] knew with respect to any agreement made prior to the issuance of the policy * * * Here, the only testimony as to any prior agreement is to the effect that insurance was discussed between Zahner and Mc-Anally, that Zahner thought that he had insurance; witness Jones testified that he was sure but not positive that McAnally told Zahner he was covered by the policy; and it is clear that Zahner paid the premium thereon. The record is silent, however, as to any agreement or intent of the parties (McAnally, as agent, and Zahner) that the premium paid was to cover anything beyond what was specified in the policy, i.e., ‘Any Pilot employed by the Named Insured and who holds a valid Commercial Pilot Certificate.’ Absent such evidence, the trial court was justified in concluding from other evidence adduced that it was intended (as respecting passenger liability here in issue) that the policy cover Zahner and Airway Flight Service, Inc., only when Zahner was flying as an employee of that named insured * * * Although the fact that Zahner paid the premium could create a rebuttable presumption, that he was expecting liability coverage in his own name, we cannot say from this fact, when coupled with other facts, that the prior agreement was to include him as a named insured so that he would be protected by liability insurance when on charter flights of his own not connected with any employment by Airway Flight Service, Inc.”

The evidence in the instant case is less compelling than that offered in favor of reformation in the Edwards case, supra. When we marshal all the available facts and circumstances shown, we are in no position to dispute the trial court’s ruling on appellants’ first contentions and conclude Robert was not intended to be a named insured in the policy issued by American.

Another complaint of appellants is the trial court erred in its finding that Patricia Ann Helmkamp did not have the implied permission of Oscar Bremer to drive the Ford at the time of the accident. We have been cited cases from sister states with the suggestion those authorities should apply. Generally speaking, such cases to which we are referred fall in two categories. First are cases from states which purportedly have adopted the so-called initial permission rule, i.e., where the named insured grants his permittee broad control over his automobile, he impliedly authorizes his permittee to allow a third person to use it, thus rendering the latter an additional insured. Missouri courts have not as yet, to our knowledge, fired such a broadside into the omnibus clause of an automobile liability insurance policy. The second class of cases appellants cite are those that permit recovery under the omnibus clause where the original permittee (user of the automobile) is riding in the car with the second permittee at the time of the accident, or, the second permittee (without the first permittee present) is otherwise serving some purpose for the first per-mittee. In this case Robert Bremer was not in the Ford when the accident occurred and Patricia Helmkamp was not on an errand for Robert or in any manner using the Ford for his or his father’s benefit. Consequently, this second class of cited case is not applicable to the facts confronting us.

Permission under the omnibus clause may be express or implied, but it must originate in the language or conduct of the named insured or someone having authority to bind him in that respect, and the person claiming permission must prove it. While Mr. Bremer never told Robert specifically he was not to let anyone operate the Ford while it was entrusted to his care, permission is something more than mere sufferance or tolerance without taking steps to prevent. Implied permission is neither proved nor inferred from the mere fact Miss Helmkamp obtained possession of the car without Oscar Bremer’s knowledge.

Both of the appellants rely heavily on Winterton v. Van Zandt, Mo., 351 S.W.2d 696, in urging liberality in our consideration of this case and suggesting we ignore the cases of M. F. A. Mutual Insurance Co. v. Alexander and Nye v. James, already herein cited in footnotes. The trouble with this suggestion is the Winter-ton matter did not involve a situation of the original permittee turning the use of the insured vehicle to a third person, but determined whether or not the one and only permittee had exceeded the permission which had been granted him by the owner and named insured. There is no indication in the record before us that American’s policy was anything but a voluntary contract between it and Oscar Bremer. The safety responsibility law of Missouri has no application to the policy in question whereas in the Winterton case the policy provided it “shall comply with the provisions of the motor vehicle financial responsibility law of the state,” and was issued under Sec. 303.170, V.A.M.S. Regardless of these distinctions, Section 303.190, subd. 2(2), V.A.M.S., provides that additional insureds are those “using any such motor vehicle or motor vehicles with the express or implied permission of such named insured,” just as American’s policy provides.

Appellants place much stock in Patricia Helmkamp’s testimony (and other similar recitals) that it “was not at all unusual” for one “kid” to drive another “kid’s” car either before or after the Walther League meetings. However, what the practices of the “kids” were or what transpired at these gatherings was' not within the knowledge of Oscar Bremer and cannot be imputed to his knowledge. In this case “[t]here is no room * * * for application of the rule of prior conduct.” M. F. A. Insurance Co. v. Lawson, Mo.App., 336 S.W.2d 123, 125. Although one girl testified Robert had allowed her to drive the Ford on one occasion, Robert denied he had ever permitted anyone to use the Ford before the date of the accident. In any event, it is clear Patricia had never driven the Bremer car prior to the date of the accident. But what if Robert had let other “kids” drive the family car on other occasions? The fact still remains that Oscar Bremer had absolutely no knowledge of such doings and his implied consent thereto cannot be milked from innocent ignorance.

It is further urged by appellants that when Mr. Bremer permitted Robert to use the automobile to go to the league meeting with “no other instructions, restrictions, or admonishments” than “be a good boy, have a good time, take care of the car, and be in by eleven o’clock,” he afforded Robert carte blanche “to do what the son considered proper with the car.” This overlooks the fact the permission given was for Robert to take the car to the league meeting and that Mr. Bremer had previously told his son “I expected him to take the car, park it unless he had a girl friend to take home.” Patricia denied she was Robert’s “girl friend” and the evidence is clear Robert had never taken Patricia to or from a league meeting. Even so, Mr. Bremer had no reason to believe the permission granted Robert would entail operation of the family automobile by Patricia or anyone other than Robert. Without knowledge by Oscar Bremer that Patricia was using the Ford, no permission therefor could be implied. McKee v. Travelers Ins. Co., Mo.App., 315 S.W.2d 852, 855.

The “social relationship” between the parties is also seized upon by appellants to show either justification for an unproved assumption Oscar Bremer would condone what Robert did in succumbing to Patricia’s “womanly charm,” or that Oscar Bremer should be held to the notion Robert would be motivated to further the social relations between him and Patricia by permitting her to operate the Ford. The issue is not whether Robert gave Patricia permission or why he granted her leave. The burden was upon appellants to show that Oscar Bremer either through his words, conduct, or the nature and scope of the permission granted by him to Robert, indicated Robert, in turn, would be clothed with authority to pass on Oscar Bremer’s permission to Patricia. There assuredly is nothing special about the social relationship existing between the Bremer family and the Helmkamp family, or between Robert and Patricia, that would give rise to an implication of anticipation on Oscar Bremer’s part that his son would turn over to Patricia the use of the family automobile.

The peculiar question in this case is; Was the use of the Ford by Patricia at the time of the accident with the implied permission of Oscar Bremer? The question was asked Mr. Bremer if “on some occasion after this accident had occurred, did you make some statement to your wife to the effect that if Patricia had asked you for the keys to the car that you would have given them to her, that you thought that much of her, or words to that effect?” Mr. Bremer replied; “I didn’t say it exactly like that. I was referring to my son, if I would have been his age, I might have done the same thing. I am not denying the fact that I didn’t say that I thought a lot of Patricia.” No matter what Mr. Bremer may have recognized as imperfection in his son, or have recalled as similar foibles of his youth, subsequent ratification by him of Patricia’s operation of the Ford would not suffice to supply evidence that Patricia had his permission at the time of the casualty. Implied permission comes from what transpired before the use in question (Mazdra v. Selective Ins. Co., Mo., 398 S.W.2d 841, 844), and what the named insured may assert after the accident what he would have done prior thereto has no probative value or relevancy. American Insurance Co. v. McMichael (DC, Mo.) 238 F.Supp. 154, 156-157; Bekaert v. State Farm Mutual Auto. Insurance Co. (CA8, Neb.) 230 F.2d 127.

The facts and contentions involved in the instant action are fairly well contained in Duff v. Alliance Mutual Casualty Co. (CA10, Okla.) 296 F.2d 506. In that case, Marvin O’Kelley, the named insured, had a son named Pete. Pete and Terry Duff had been intimate friends, neighbors, and schoolmates for some five or six years, and had enjoyed the free run of each other’s homes. After they were sixteen, had obtained their driver’s licenses and access to the use of their respective family cars, each boy had allowed the other to drive “his” car on frequent occasions. Pete had been best man at Duff’s wedding. Mr. O’Kelley had never discussed with his son the matter of allowing others to drive the family car. Although well aware of the fast friendship .between the two boys, Mr. O’Kelley had no knowledge of any instance when Pete had allowed Duff to drive the car and did not know, until after the accident, that Pete had permitted Duff to drive the car at the time of the casualty. On the date in question, Pete had his father’s permission to drive the family automobile to work. Duff met Pete at work, and with Pete’s consent, borrowed the car to seek some person that would give him a ride to school at Stillwater, Oklahoma. While Duff was driving the O’Kelley car on this mission, the accident occurred. Mr. O’Kelley’s insurance carrier instituted a declaratory judgment action against Duff and those having claims against him because of the accident. The trial court found for the carrier, and Duff et al. appealed. Appellants contended “that the intimate relationship between the O’Kelley and Duff families, viewed in the light of the Oklahoma Safety Responsibility Act * * * make a finding of implied consent mandatory,” i. e., that Duff had Mr. O’Kelley’s implied consent to operate the automobile. Affirming the trial court, the Circuit Court of Appeals (1. c. 508-509) said:

“The intimate friendship of the O’Kelley and Duff families does not, as a matter of law, carry with it the implied permission to borrow the family car absent knowledge of the existence of such a practice. And, since the particular purpose for which Duff borrowed the car and the actual use made of the car were not to serve any purpose, benefit, or advantage to either Mr. O’Kelley or his son, the case falls squarely within the rule set forth in Samuels et al. v. American Automobile Ins. Co., 10 Cir., 150 F.2d 221, 223, 160 A.L.R. 1191: Tt has generally been held that where A, the owner of an automobile, gives general permission to B to use the automobile and B gives permission to C to use the automobile solely for C’s purpose, benefit, or advantage, and the automobile is involved in an accident while being so used by C, such use is not with the permission of the named insured.’
“We find no merit in appellants’ contention that the subsequent passage of the Oklahoma Safety Responsibility Act * * * requires a re-examination of Samuels or a modification of the clear limitation placed upon coverage in the wording of the policy of insurance * * *. The policy was voluntarily carried by Mr. O’Kelley. In such case the Oklahoma Supreme Court considering a case of non-coverage, has held, U. S. Fidelity and Guaranty v. Walker, (Okla.1958), 329 P.2d 852, 853, ‘A policy * * * voluntarily carried by an operator who has never been required to furnish proof of financial responsibility under provisions of the safety responsibility act, and not certified as such proof, is not “required by said law” and the insurer is not precluded from relying on policy defenses * * *.’ ”

Also see Hays v. Country Mutual Insurance Co., supra, 28 Ill.2d 601, 192 N.E.2d 855.

The Duff decision is concordant with the expressions of Missouri courts, and convinces us the Circuit Court finding that Patricia Helmkamp did not have the implied permission of Oscar Bremer to operate the Ford at the time of the accident was correct. In light of this holding, the further issue of deviation becomes moot.

What we have already said serves to unhook Western from any liability in this matter (and as so found by the trial court) because its policy, which would provide Patricia Helmkamp with coverage (excess or otherwise) while using an automobile other than the one described in Western’s policy, “does not apply: [1] To any automobile * * * [i. e.] used without the express or implied permission of the owner. * * ⅜ »

Judgment of the trial court is affirmed.

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

      . Rule 87, V.A.M.R.; Sec. 527.010 et seq., V.A.M.S. The curiosity of those concerned with the existence of a justiciable controversy herein and the permissibility of the parties to maintain such a cause may be sated by reference to Fidelity and Casualty Co. of New York v. Western Casualty & Surety Co., Mo.App., 337 S.W.2d 566, and cases therein cited.

      . Cotton v. Iowa Mut’l Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246; Mo.App., 260 S.W.2d 43, 44; Missouri Managerial Corporation v. Pasqualino, Mo.App., 323 S.W.2d 244; Sec. 477.040 V.A.M.S.

      . Ralph D’Oench Co. v. St. Louis County Cleaning & Dyeing Co., 368 Mo. 1072, 218 S.W.2d 609, 611; 1A Federal Practice & Procedure, Rules Edition, Barron & Holtzoff-Wright, Sec. 360, p. 401; Lytle v. Payette-Oregon Slope Irr. Dist., 175 Or. 276, 152 P.2d 934, 941-942, 156 A.L.R. 894.

      . V.A.M.R. Rule 73.01(d); V.A.M.S. Sec. 510.310(4) ; Holman v. Fincher, Mo.App., 403 S.W.2d 245, 251; Chailland v. M.F.A. Mutual Ins. Co., Mo. (En Banc.), 375 S.W.2d 78, 79.

      . Vente v. South Central Enterprises, Inc., Mo.App., 401 S.W.2d 495, 498; Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318; Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1004, 291 S.W.2d 166, 170.

      . Dougherty v. Dougherty, 204 Mo. 228,102 S.W.2d 1099, 1101; Snider v. Miller, Mo.App., 352 S.W.2d 161, 165; Edwards v. Zahner, Mo., 395 S.W.2d 185, 190.

      . Binswanger v. Employers’ Liability Assur. Corp., 224 Mo.App. 1025, 28 S.W.2d 448, 453; Edwards v. Zahner, supra, 395 S.W.2d 185, 190; Allan v. Allan, Mo., 364 S.W.2d 578, 581; 20 Am.Jur., Insurance, Sec. 354, pp. 714-715.

      . Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419, 423; Thornburgh v. Warson Village Corp., Mo.App., 331 S.W.2d 144, 148.

      . Allen v. Smith, Mo.App., 376 S.W.2d 874, 880; 17 Am.Jur.2d Contracts, Sec. 76, pp. 416-417.

      . National Grange Mutual Liability Co. v. Metroka (CA3, Pa.), 250 F.2d 933 ; 7 Am.Jur.2d Automobile Insurance, Sec. 116, p. 431; Hays v. Country Mut’l Ins. Co., 38 Ill.App.2d 1, 186 N.E.2d 153, cited in the brief of one of the appellants, has been reversed outright by the Supreme Court of Illinois in Hays v. Country Mut’l Ins. Co., 28 Ill.2d 601, 192 N.E.2d 855.

      . Loffler v. Boston Ins. Co. (Mun.Ct. of App., Dist. of Col.) 120 A.2d 691; Dodson v. Sisco (D.C.Ark.) 134 F.Supp. 313; 160 A.L.R. 1195, 1206; Teague v. Tate, 213 Tenn. 269, 375 S.W.2d 840; Grant v. Knepper, 245 N.Y. 158, 165, 156 N.E. 650, 652, 54 A.L.R. 845 ; 7 Am.Jur.2d Automobile Insurance, Sec. 117, p. 435.

      . Hanover Ins. Co. v. Abchal, Mo.App., 375 S.W.2d 605, 608-609; Nye v. James, Mo.App., 373 S.W.2d 655, 660; Varble v. Stanley, Mo.App., 306 S.W.2d 662, 666; M.F.A. Mutual Ins. Co. v. Alexander, Mo.App., 361 S.W.2d 171, 179; McKee v. Travelers Ins. Co., Mo.App., 315 S.W.2d 852.

      . Haynes v. Linder, Mo.App., 323 S.W.2d 505, 510; Nye v. James, supra, 373 S.W. 2d 655, 660; M.F.A. Mutual Insurance Co. v. Alexander, supra, 361 S.W.2d 171, 179.

      . See cases cited in Footnote 12, supra.

      . Perkins v. Perkins, Mo App., 284 S.W. 2d 603; Gabler v. Continental Casualty Co., Mo.App., 295 S.W.2d 194; State Farm Mutual Auto Insurance Co. v. Ward, Mo., 340 S.W.2d 635.

      . Hanover Insurance Co. v. Abchal, supra, Mo.App., 375 S.W.2d 605; C. H. Bile Const. Co. v. Western Casualty and Surety Co. (CA9, Idaho) 294 F.2d 459, 462; Johnson v. State Barm Mut. Automobile Ins. Co. (CA8, Neb.) 194 F.2d 785, 787.


author: SPERRY, Commissioner. PER CURIAM:

text:
    In the Interest of T. J. A., P. A. A., R. S. A., S. J. A. A., B. G. A. and M. J. A.
    No. 24503.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    David R. Freeman, Freeman & Williamson, Independence, for appellant.
    Stephen R. Pratt, North Kansas City, attorney and guardian ad litem for T. J. A. and others.
   SPERRY, Commissioner.

This action was instituted in the juvenile court in the interest of the within named children upon the filing therein of a petition by the juvenile officer of Clay County, under the provisions of Chapter 211, R.S.Mo. 1959, V.A.M.S. It was alleged that said children were in need of care and treatment under the supervision of the court. A number of hearings were held, over a period of several months, resulting in a judgment whereby T. J. A., then 16 years of age, was ordered placed in a foster home under the jurisdiction of the court, and her three younger sisters named above, P. A. A., R. S. A. and S. J. A. A. were ordered to remain in the home of their parents under the supervision, general guidance and control of the juvenile court. The court retained jurisdiction of all of the children until each should reach the age of twenty-one. The parents of the children, B. G. A. and M. J. A., who were parties to the proceedings and were present and participated therein, in person and by attorney, appealed.

The appeal was to the Supreme Court but it was, by mandate, transferred to this court for lack of jurisdiction in the Supreme Court. A motion was filed to dismiss the appeal but, in the public interest, we will review the case and rule the appeal.

The transcript is in four sections, each relating to a separate hearing. The testimony took a wide range and is, in many instances, conflicting.

At the conclusion of all of the hearings the court made the following pertinent findings, to-wit:

That the father drinks to excess. That he has struck his wife; that the said parents engage in quarreling and fighting in the presence of the children; that on six occasions he had sexual relations with a witness; that while married to his present wife he had sexual relations with a 16 year old girl causing her to become pregnant; that he caused his present wife to obtain a divorce so that he might marry the girl with the understanding that he would return to her later; that he did marry the girl, the child was born and she became pregnant again giving birth to another child; that while married to this girl he caused his present wife to become pregnant; that the girl divorced him and he remarried his present wife and the child was born to them; that he and his wife permit these children born to his second wife to come and remain in their home and these facts were known to his children and many others. The court further finds that M. J. A. is an extremely weak character; that in the presence of her husband she is practically helpless and is governed entirely by his will and desires; that the conditions in the home are injurious to the welfare of all the children and particularly as to the child T. J. A.
That each and all of the children are in need of the care and protection of the court.

In this type of case we will review the record de novo but we defer to the trial court’s finding unless it is clearly erroneous. H- v. D-, 373 S.W.2d 646, 654 (Mo.App.). The court said, in the above case (654):

“Insofar as it is reasonably possible, the court should not only assure itself that the home is one in which the conventions and mores of the day are scrupulously observed, but should inquire as diligently as possible into the home environment and the surroundings in which the child will be reared”.

We have scrupulously read and considered this entire record. The conditions shown to exist in the home are such that the children are in dire need of relief. T. J. A. left home and reported the situation to the juvenile authorities. M, J. A., the mother, was notified thereof and went to the juvenile office where she made and signed written statements, as did T. J. A., wherein the deplorable situation of T. J. A. was shown. The mother then secured the services of Dr. Lytton, an eminent psychiatrist, upon whose advice T. J. A. was hospitalized and given psychiatric treatment, including electrical sleep. He testified to the effect that she should not be remanded to the custody of her parents or be compelled to live in the home. He also recommended that, if the three younger girls were remanded to the custody of the parents, they should he closely supervised by juvenile authorities while in their home.

The findings of the court herein are fully supported by the record, and, in the opinion of this court, the order and judgment is in the best interests of the children, and of the public.

The record discloses that the father of these children sexually molested T. J. A., in the home and elsewhere, a number of times; that such conduct first began when she was from nine to eleven years of age and continued until she left home and complained to the juvenile authorities; that he was extremely cruel to T. J. A. when he was intoxicated, and punished her in such a manner as to endanger her health; that the mother and wife, M. J. A., had knowledge of her husband’s conduct in these matters. There is no substantial evidence tending to prove that the father was guilty of such misconduct as to the three younger children. T. J. A. greatly fears her father, and, likely, would not live at the home if ordered by the court to do so. It would be inimical to her mental and physical health and well being to compel her to live in the home with her father. We can see no real present threat, morally or physically, to the smaller children if they would continue to live in the home of the parents. However, they should be kept under the close supervision of competent juvenile officers so that their future welfare will be protected.

For the above reasons, as shown by the record, the judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.