author: BRADY, Commissioner.

text:
    Firman L. O’LEARY, Plaintiff-Respondent, v. Norma H. O’LEARY, Defendant-Appellant.
    No. 31767.
    St. Louis Court of Appeals. Missouri.
    Nov. 17, 1964.
    Rehearing Denied Dec. 21, 1964.

      'George W. Curran, St. Louis, for defendant-appellant.
    Bahn & Saitz, William S. Bahn, Husch, Eppenberger, Donohue, Elson & Cornfeld, ■Carroll J. Donohue, and J. Roger Edgar, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

Those portions of respondent’s petition for divorce pertinent to the consideration of appellant’s allegations of prejudicial error are that the parties were married in June of 1942 and separated in December of 1962; * * * that during all that time,” he had * * * faithfully demeaned himself and ■discharged all of his duties as the husband ■of defendant and at all times treated her with kindness and affection * * * ”; but that defendant had rendered his * * * condition in life intolerable * * * ” by the following indignities: being excessively jealous without justifiable cause; constantly arguing and complaining to him about “ * * * small and petty things”; causing him excessive embarrassment at his various places of employment by calling there and questioning plaintiff’s whereabouts and movements; by wrongfully and erroneously accusing his fellow employees of improperly associating with him; by disliking his friends and family and refusing to associate with either. The appellant admitted the marriage and separation but denied each of the alleged indignities. The parties will hereafter be referred to by their designation in the trial court.

The defendant contends the trial court erred in granting the plaintiff a divorce because plaintiff’s proof is insufficient to support a charge of general indignities. The defendant also contends the plaintiff's own evidence “ * * * constitutes proof that plaintiff is not the innocent and injured party * * The plaintiff did not ask for custody of the minor child bom of this marriage. The defendant did not file any pleading requesting an award for support for herself or for the minor son in the event a divorce be granted. The defendant's allegations of error require a careful review of the evidence.

The petition does not contain any allegation regarding defendant’s acts after their separation nor is it susceptible to any reading which would reasonably infer that plaintiff intended to base his charge of general indignities upon any of defendant’s activities that occurred after the separation. This case is to be distinguished from Ezell v. Ezell, Mo.App., 348 S.W.2d 592, in that regard. Nevertheless, as shown by the factual statement set out earlier herein, in support of his allegations of general indignities, the plaintiff introduced evidence of defendant’s activities which admittedly took place after these parties had separated. This evidence was not only introduced without objection but issue was joined on the matter. For example, with respect to the occasion when plaintiff drove a Margaret Horton home, the defendant gave testimony the purpose of which was to show that she was provoked into going to the Horton residence as a result of plaintiff’s misconduct. If believed, defendant’s testimony would prevent defendant’s activities from constituting an indignity. Holmes v. Holmes, Mo.App., 251 S.W.2d 390. Accordingly, the pleadings must be deemed to have been amended by the proof to include allegations of general indignities occurring after the parties separated.

The plaintiff’s evidence hearing upon the allegation that defendant was excessively jealous without cause was that in 1959 upon returning home from a party given by some friends named Young, the defendant remonstrated with the plaintiff about his conduct at the party and specifically objected to the fact he danced several times with other women. Plaintiff further testified that when he drove a Mrs. Kohler, an acquaintance of his, to a beauty shop, she left a package in his automobile which defendant found and that defendant made numerous calls to this woman to inquire about the circumstances of this trip. Plaintiff also testified that he was embarrassed on an occasion after these parties had separated when he drove a Margaret Horton home and found the defendant waiting for him in front of the Horton residence. On another occasion the telephone operator where plaintiff worked asked him to drive her to work and plaintiff put her name and address on a note which he left in his automobile so as not to forget it. Defendant found the note and made a call to the woman. This occurred after the separation. Other testimony given by the plaintiff to support this allegation was that the defendant had entered his separate abode on a pretext and there found a note from Margaret Horton written on a St. Patrick’s Day card.

The defendant’s evidence on this issue was that pláintiff had grown cold toward her in 1962 and that during that year the parties did not have sexual relations. She became worried about their marriage. She also testified that on the occasion when she waited in front of the Horton residence, she had received a telephone call and went there as a result of that call. Defendant also relies upon plaintiff’s testimony that his automobile had been stolen while it was parked near the Horton residence and that on many occasions during the marriage the plaintiff would not come home at all and would offer no excuse or explanation for his absence.

The plaintiff’s evidence in support of the allegation that defendant constantly argued and complained about small and petty things was limited to the occasion previously referred to when the parties returned home from the party in 1959. Plaintiff also testified that when defendant refused to go out with him this caused arguments “ * * * on many occasions * * No dates were given and in the sentence immediately preceding that testimony the plaintiff had been speaking of such occurrences taking place four or five years before the trial.

The allegation that defendant caused the plaintiff excessive embarrassment by calling at his places of employment was supported by plaintiff’s testimony that in 1960, when he had not returned home on time, the defendant called his place of employment.

The transcript is devoid of any proof as to any statements or accusations made during their marriage by the defendant to any of plaintiff’s fellow employees concerning their wrongful association with plaintiff. The only proof of this allegation that can be discovered in this transcript is the plaintiff’s testimony that on the occasion when plaintiff drove to her home the telephone operator who worked with him defendant called her on three or four occasions and as the plaintiff put it “ * * * made an issue of it * * The defendant admitted she called this woman once to “ * * get the connection of her with my husband * * This took place after the separation.

The plaintiff also alleged as a general indignity that the defendant disliked plaintiff’s friends and family and refused to associate with either. As to defendant’s dislike of plaintiff’s family, the plaintiff’s evidence was that in June of 1957 he had his brothers and sisters at his home for a barbecue along with some other friends. He testified: “* * * They certainly weren’t welcome, not made to feel welcome. So, after the barbecue was over and they left, all she could talk about was that they were moochers and she didn’t want anything to do with them anymore, and this constituted nothing but frustration for me.” The plaintiff’s sisters also offered testimony on this issue. Mrs. Fitzgerald’s testimony was that after the barbecue in 1957, the defendant had called her on the phone and the following conversation had ensued: (Mrs. Fitzgerald) “We had a very nice time.” (The defendant) “Well, you thought you had such a good time, you don’t have good times when we are together, you just think you do.” She also testified that the defendant told her the Fitzgeralds wouldn’t be coming back to the defendant’s home because Mrs. Fitzgerald had insulted them. She testified that she had not been back in the plaintiff’s home since that occasion. Mrs. Durst testified that she had visited in the plaintiff’s home four times in the last ten years and that she did not visit more often because she felt that she was not welcome. When asked upon what she based that opinion, she testified : “Oh, just different things that I would call on the phone to make a — we were always getting together for a picnic or something, and I would call and ask Mrs. O’Leary if she would, you know, like to come to the picnic, and she wouldn’t ever answer me. So, then — they would not show up. I just thought, well, he doesn’t want to see us any more. After I talked to my brother recently, why, he just said he never got the messages. Q You would leave the message and she wouldn’t give him the message? A Yes, sir. Q Were you there on this particular party? A Yes, sir. Q In ’56 or ’57? A Yes, sir. Q Were you told you weren’t welcome anymore? A More or less. We just avoided her because you couldn’t be friendly with her.” Mrs. Durst also testified that in the past they had stopped by the plaintiff’s home but the defendant “ * * * was as cold as anything, so, we just maybe stayed a couple of minutes, maybe half an hour at the latest.” She was asked if she was distant toward the defendant and replied, “No. We had a party two years ago in 1961, and I invited her, but I don’t recall going near her all evening, because it just — I don’t know, she is just cold.”

The defendant’s testimony on this issue was that she thought she was nice to the plaintiff’s family. She gave her opinion of them in this manner: “ * * * they love a good time, don’t always like to pay for it.” She stated that her husband was often out of work and held eleven different jobs in the twenty years of their marriage. As a result she couldn’t manage to entertain as lavishly as he wished. She managed the home on $25.00 a week and then on $30.00 a week when the plaintiff had to have his white shirts laundered and bought her own clothes and sent her son, who was away in college, $10.00 occasionally* tier further testimony was that it was on the occasions when the family was short of funds that the quarrels about entertainment arose. She gave as an example an occasion when Mrs. Durst and her husband came to the plaintiff’s home and the four of them went to a golf club. While there the plaintiff bought a case of beer at a time when, as the defendant stated it, “ * * * I didn’t know where my next dollar was coming from.” Both Mrs. Durst and Mrs. Fitzgerald testified that the defendant served them properly and afforded plenty of food and beverages whenever they were at the plaintiff’s home.

With respect to plaintiff’s allegation that defendant disliked and refused to associate with their friends, the evidence to support this allegation was that he belonged to several engineering societies and on the occasion of their Christmas dinner dances he would ask the defendant to accompany him and that in the past ten years she had only attended one of these affairs. The specific evidence relied upon by the plaintiff to support this allegation was his testimony regarding the defendant’s conduct arising out of an altercation she had with a neighbor family regarding a ditch she had dug on the property owned by the plaintiff and defendant. The plaintiff’s testimony was that in June of 1960 this neighbor stopped him on the driveway to talk to him about the ditch defendant had dug and that the defendant “ * * * came out of the house and threw herself around me, screaming there was going to be a fist fight * * * ” and grabbed him around his shoulders and wrapped her legs around his legs “ * * * to restrain me. * * * ” The plaintiff’s testimony was that this was unnecessary as he had no intentions of being involved in a fist fight with a neighbor. He stated he was very humiliated by defendant’s action which was witnessed by other neighbors also and that he dragged her back into the house and “ * * * severely chastised her verbally about this type of action.” He testified that the continuation of this argument over the ditch for the past five years so embarrassed him he wanted to sell the house and get out of the neighborhood. He also testified that as a result of this occurrence his work suffered stating: “* * * I couldn’t come home from work with the thought in mind whether I was going to have to fight the neighbors or leave in the morning figuring I may have to fight these neighbors.” There was no evidence regarding the social association of the neighbors with the parties to this action nor as to the degree of their acquaintance with the plaintiff and the defendant.

The defendant’s evidence as to this occurrence was that it took place- when she attempted to prevent the surface water flowing off of other property from flooding the basement of their house. She testified that she tried to reason with these neighbors but was unable to do so and that she gets along with every other neighbor on the block.

With respect to the issue of whether or not the plaintiff is an innocent and injured party, the evidence is that the plaintiff expressed satisfaction with the defendant as a parent, as a housekeeper, as a budget manager, and as a sexual companion. He did complain about the defendant’s mode of dress, stating that the defendant has been “too modest” and that she did not dress in a manner he thought suitable for the social functions which he wished her to attend. Defendant’s evidence was that she had -to alter clothes her sister gave her and did not have an elaborate wardrobe, although she admitted she had never asked the plaintiff to buy her more clothes. The plaintiff admitted that he had no love for the defendant and had had none for a period of at least ten years prior to their separation. He stated that at that time he objected to buying their home because “ * * * I didn’t want the responsibility of having — being tied down to the house, knowing full well that in due time that we were certainly going to go our own ways, because our love was not together.” He admitted that on frequent occasions during the marriage he would absent himself from home without excuse or explanation other than “ * * * I could see no reason to come home to something or to a place just to hang my hat.” The defendant testified that she still loved her husband; that she had written him and talked to him and attempted to effect a reconciliation but was unsuccessful. Upon the date of separation the parties had a savings account of $800.00 which the plaintiff had testified the defendant had appropriated. The defendant admitted that she took the money and stated that she had used $447.00 to pay off a debt that her husband had incurred. It appeared elsewhere that a part of this $800.00 represented the proceeds from an insurance policy paid defendant upon the death of her mother.

After the parties had concluded their respective cases, the trial court recalled the plaintiff to the stand and asked him this question: “Mr. O’Leary, if this petition is denied that you filed here for a divorce, would you ever, under any circumstances, live with this lady, Mrs. Norma O’Leary, your wife, again ?” The plaintiff answered that regardless of the outcome of his case, he was not going back to live with the defendant.

Our review of a divorce action .is in effect a trial de novo upon the record, and we are to reach our own conclusions. The decision of the trial court is not to be reversed unless we find that decision manifestly entered for the wrong party or one clearly against the weight of the evidence. Holmes v. Holmes, supra; Holm v. Holm, Mo.App., 251 S.W. 130. In Barth v. Barth, 168 Mo.App. 423, 1. c. 427, 151 S.W. 769, 770, it was said that “ * * * When it becomes apparent that the true aims of the union of a man and woman can no longer he achieved by continuing the marital tie, it can hardly be that the interests of society demand that the union be preserved by mere force of law * * Doubtless it was this philosophy that prompted the trial court’s inquiry as to whether, regardless of the outcome of this action, the plaintiff would ever again live with the defendant as man and wife. However, the court in Barth v. Barth, supra, went on to state that the duty of the court is to see to it that a marriage is not dissolved “ * * * on slight testimony, nor for either light or trivial causes. * * * ” In Bassett v. Bassett, Mo.App., 253 S.W. 112, rev. 280 S.W. 430, the court held that regardless of the consideration mentioned in Barth v. Barth, supra, the court’s duty was " * * * to decide whether just, legal, reasonable, and proven grounds exist for the sundering and abrogation of the marriage contract, and, unless such grounds are found to exist, it is our clear duty to deny the abrogation of a contract which the parties themselves have made and entered into.”

As is apparent from a reading of the facts as set out in this opinion, there is no real conflict as to the evidence in this case. This is not a case where the testimony of one party is contradicted by the other. In fact the defendant admitted most of the plaintiff’s testimony to be true but offered explanations or amplifications of that testimony. The issue does not depend upon the credibility of the witnesses. Simply stated the question to be resolved is whether the commission of the acts alleged and proved by the plaintiff constitutes such general indignities as to support a decree of divorce. It follows that the instant case is not one where the rule of deference plays an important part as that rule has application where the case turns upon the credibility of witnesses or the character of the parties as that character might be ascertained by the trial judge from the appearance and demeanor of the parties. Moore v. Moore, Mo.App., 337 S.W.2d 781.

Each case in which a divorce is sought on the grounds of general indignities must necessarily rest upon its own factual situation. Richardson v. Richardson, Mo.App., 270 S.W.2d 68; Moore v. Moore, supra. This court has said that “ * * * the acts relied on must amount to a species of mental or physical cruelty, and must evidence a course of conduct by one spouse towards the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relation. * * * ” Mayor v. Mayor, Mo.App., 351 S.W.2d 810, 1. c. 813. A more lengthy definition of general indignities is stated in Moore v. Moore, supra. There it was said that indignities sufficient to constitute grounds for divorce must be such as cannot be relieved by any exertions of the injured party; that a single act or word or occasional acts or words will not suffice; and that the course of conduct must be such as to connote settled hate and a plain manifestation of alienation and estrangement.

In an action for divorce based upon indignities the party alleging the indignities has the burden to establish both the marital misconduct of the other party and that he or she is the innocent and injured party.. Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703. The party alleging the indignities must bear this burden by a preponderance of the credible evidence. Greenbury v. Greenbury, Mo.App., 223 S.W.2d 153; Waters v. Waters, Mo.App., 357 S.W.2d 233.

We are of the opinion that this transcript does not disclose a course of conduct upon the defendant’s part such as to connote settled hate toward the plaintiff and a plain manifestation of alienation and estrangement from him. Moore v. Moore, supra. The evidence as to most of the allegations does not disclose a course of conduct at all hut only single or very occasional acts on the part of defendant. So it is as to the evidence offered in support of the allegation that the defendant constantly argued with plaintiff about small and petty things. This evidence was limited to one occasion which took place in 1959. There was some other evidence as to defendant’s refusal to go out with the plaintiff as being the cause for arguments, hut this evidence is of little probative value. There was no occasion specified in the evidence as to when this occurred and as a matter of fact in the same answer in which this evidence was given the plaintiff was talking about an occurrence that took place four or five years ago. Acts that far apart cannot reasonably be said to indicate a course of action. With respect to the defendant’s alleged acts of embarrassing the plaintiff by calling his places of employment, the plaintiff’s evidence is again limited .to only one occasion in 1960 when the plaintiff himself admitted that he did not come home at the time he indicated 'he would be home and his wife called to inquire about him.

The plaintiff’s evidence with reference to the defendant wrongfully and erroneously accusing his fellow employees of improperly associating with him is also insufficient to support the plaintiff’s burden. So far as this transcript discloses, the defendant did not have any discussion with Margaret Horton on the occasion when the plaintiff drove her home and found the defendant waiting for them. Neither is there any evidence to show defendant accused her on on any other occasion. The only evidence in this record to support this allegation is plaintiff’s testimony that the defendant called the telephone operator he drove home and, as the plaintiff put it, “ * * * made an issue of it * * The record does not state what was said. Giving the plaintiff every possible benefit of all reasonable inferences the most this evidence shows is that the defendant did not want the plaintiff to drive the telephone operator home. This evidence is clearly insufficient to prove the defendant made any accusations to the telephone operator concerning her wrongful association with the plaintiff. The evidence as to the occurrence with Mrs. Kohler does not bear upon this allegation as Mrs. Kohler was admittedly not a fellow employee with the plaintiff.

To support his allegation that the defend- and disliked his friends and refused to associate with them the plaintiff relies upon his testimony with regard to the altercation with the neighbors and the fact that the defendant refused to attend all the social affairs the plaintiff desired her to attend. So far as the altercation with the neighbors is concerned, that evidence is insufficient for the reason that so far as this record discloses it occurred only once. The plaintiff’s evidence was that he became upset by the fear that it might occur again and he would have to fight with these neighbors, but his own evidence shows only one such' occurrence. Moreover, there is no showing that the plaintiff and the neighbors were friends or were acquainted socially at all. The only evidence is that they were “neighbors.” We do not believe the evidence as to defendant’s refusal to attend the social affairs the plaintiff desired her to attend is such that it would reasonably tend to subversion of the family relation. Greenbury v. Greenbury, supra. The plaintiff’s own evidence as to the Christmas party at the Young’s'home and the occasions when they entertained his family are proof that the defendant did indulge in some social activities with the plaintiff although they may be more limited than the plaintiff might have desired. The defendant’s uncontra-dicted testimony as to their limited financial condition and her resultant inability to dress according to her husband’s wishes is a more reasonable explanation than to infer that defendant’s refusal to attend all of these social affairs was a result-of a settled course of action on her part arising from her desire to subvert the family relation.

The plaintiff’s evidence as to the defendant’s alleged dislike of plaintiff’s family is not sufficient to bear the burden incumbent upon him. There was no course of conduct illustrated by the occasional activities. In addition, it is obvious from the evidence that the plaintiff’s sisters were not overly friendly toward the defendant and on at least one occasion when they were together did not go near her all evening. Both of the witnesses who testified on this issue indicated that when they did visit the defendant’s home she was generous with food and drink. Moreover, we think the defendant’s evidence as to the financial situation of the parties and particularly with respect to the number of occasions the plaintiff had been out of work and the amount of money which she was given on which to run the home indicates that there was not a large amount available with which the defendant could have entertained as the plaintiff wished.

The same is true as to the plaintiff’s evidence that defendant was excessively jealous. As to this allegation plaintiff’s evidence concerned itself with an occasion in 1959 when defendant remonstrated with plaintiff concerning the fact that he danced with other women at a Christmas party they attended; the incident with Mrs. Kohler; the occasion when defendant was in front of the Horton residence when the plaintiff drove that woman home; the occasion when he drove the telephone operator to work; and the occasion of their separation when defendant entered plaintiff’s abode on a pretext and took a St. Patrick’s Day card sent to him by Margaret Horton. The party in 1959 is too far removed from the other occurrences to amount to anything more than a single act unconnected to any settled course of action on defendant’s part. Certainly, it alone would not supply sufficient grounds for the decree. With respect to the rest of these occurrences except the entry into plaintiff’s place of abode, it is sufficient to state that the defendant cannot be deemed guilty of intolerable indignities when those indignities are provoked by her husband’s misconduct. Holmes v. Holmes, supra. The defendant’s entry into her husband’s abode upon a pretext after the separation is a more serious charge yet it too stands alone, unconnected with other similar occurrences. In and of itself and considered in the context of her husband’s coldness toward her and his activities with other women, we do not believe this act alone to be of such a character as to amount to a species of mental cruelty (Mayor v. Mayor, supra) or to meet the tests for indignities sufficient to justify a decree of divorce as those tests are set forth in Moore v. Moore, supra, and similar cases therein cited.

The judgment should be reversed and the cause remanded with instructions that the trial court enter its order denying the plaintiff a divorce. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded with instructions that the trial court enter its order denying the plaintiff a divorce.

WOLFE, Acting P. J., ANDERSON, J., and L. F. COTTEY, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    W. J. BUCKLEY, Appellant, v. Raymond COE, Respondent.
    No. 23923.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    C. B. Burns, Jr., Brookfield, Harry Porter, Marceline, for appellant.
    James J. Wheeler, Keytesville, for respondent.
   MAUGHMER, Commissioner.

This litigation arose out of a farm operation agreement entered into by the landlord and the tenant. Plaintiff W. J. Buckley, a railroad conductor, had control, through his wife’s ownership, of a 700 acre farm located near Marceline, Missouri. The defendant Raymond Coe was a farm renter but had at one time worked for plaintiff as a hired farmhand.

After some preliminary discussions in August, 1960, the parties determined to enter upon -a joint farming venture and on August IS, 1960, signed the following document relative to such agreement: ■

“August 15. 1960

“CONTRACT BETWEEN W. J. BUCKLEY AND RAYMOND COE

“THIS CONTRACT TO RUN FOR A PERIOD OF TWO YEARS SUBJECT TO RENEWAL IF AGREEABLE TO BOTH PARTYS. W. J. BUCKLEY IS THE LAND OWNER AND AGREES TO PAY ALL TAXES ON LAND ALSO ALL PERMANENT IMPROVEMENTS.

“MACHINERY

“EACH AGREES TO FURNISH THE MACH HE HAS ON HAND WITH THE EXCEPTION RAYMOND COE AGREES TO FURNISH A POST HOLE DIGGER AND HAMMERMILL EITHER NEW OR A SUITABLE USE ONE AND AGREES TO FURNISH IN A REASONABLE TIME THIS TO MEAN BY JUNE 1 1961

“HOGS.

“EACH AGREES TO FURNISH ONE BOAR AND A SUITABLE AMOUNT OF SOWS TO BREED.

“CATTLE.

“RAYMOND COE HAS 15 COWS AND ONE BULL WJ BUCKLEY HAS 50 COWS AND AGREES TO FURNISH BULLS FOR REGISTERED COWS, IT IS THE INTENTION TO HAVE ONE HUNDRED REGISTERED COWS, AND WHEN EITHER OF THE COWS BELONGING TO THE ABOVE PARTYS IS SOLD HE IS TO RETAIN THE MONEY BUT ALL COWS TAKEN IN THE HERD FROM NOW ON TO BELONG TO BOTH PARTYS.

“MANAGEMENT

“INCOME AND EXPENCE WILL BE DIVEDED EQUALLY, LIVING QUARTERS WILL BE FURNISHED AND UPKEEP WILL BE PAYED BY THE LANDLORD THE LEASOR AGREES TO KEEP IT NEET. AND LOK WELL IN APPEARANCE. RAYMOND TO HAVE THE MANAGEMENT, AS TO HIREING EXTRA LABOR, HARVESTING CROPS MARKETING OF HOGS GRAIN, HAY, AND ALL CULL CATTLE, ALL REGISTERED CATTLE WILL BE MUTUALLY AGREED ON BY BOTH PARTYS, ALL LAND TO BE PUT IN CROPS WILL BE AGGREED ON.

“THIS CONTRACT CAN BE TERMINATED BY EITHER PARTY BY GIVING THE OTHER PARTY WRITTEN NOTICE, OF 60 DAY PRIOR TO MARCH 1 OF ANY YEAR.

/s/ W. J. Buckley /s/ Raymond H. Coe”

This document described.as a “contract” is certainly no model. It is rather a glaring example, of how incomplete, indefinite and inexact a so-called written contract can be. It did not even describe the farm acreage involved, and left many of the vital details to future agreement. It was an invitation to disagreement and trouble and such was soon the result. This written agreement or contract was, however, sufficient in at least two respects: First, it hound the parties to a joint farm operation for a period of two years and, second, it gave either party the right to terminate by giving written notice 60 days prior to any March first.

About September 1, 1960, defendant moved into the tenant house on plaintiff’s farm and the joint operation was under way. During the fall of 1960, defendant harvested plaintiff’s growing crops. Disagreements emerged about one year later. Plaintiff expressed the opinion that defendant had not properly harvested the crops or maintained the premises and was not carrying out his part of the agreement. Defendant said plaintiff had not furnished the cows and brood sows as agreed. Three cows produced dwarf calves. There was some suggestion of Bangs Disease. Plaintiff advertised a dispersal sale for 80 head of cattle to be held on September 13, 1961 (45 cows, 15 bulls, which were plaintiff’s, and 27 calves and 3 open heifers which belonged to plaintiff and defendant jointly). Defendant refused to allow plaintiff to remove the cattle from the farm premises. Thereupon plaintiff filed suit in the Circuit Court at Brook-field, was granted an injunction restraining defendant from interfering with the removal of the cattle and a receiver was appointed to sell and account for the joint property. Shortly thereafter the litigation was removed to Livingston County in another circuit and before another judge.

Plaintiff’s second amended petition on which he went to trial was in seven counts. Defendant’s answer and counterclaim was in three counts. The first six counts of the petition, which asked for cancellation of the contract, revision of the contract, an injunction, an accounting and appointment of a receiver, and the last two counts of defendant’s counterclaim seeking an accounting and partition, were by agreement tried to the Court. The Court took same under advisement but some time later the parties signed a written stipulation which had the effect of an agreed accounting. In any event, the Court thereupon entered a judgment covering all controversies as to all counts — (petition and counterclaim)— except Count 7 of the petition and Count 1 of the counterclaim. By this judgment plaintiff was awarded the balance of $839.-03, which was in the hands of the receiver and a judgment against defendant in the sum of $808.45. No appeal was taken and the judgment has become final.

The issues raised by plaintiff’s Count 7, wherein he asked damages in the sum of $3,240 for defendant’s alleged negligence in harvesting and preserving plaintiff’s hay and oat crop, and Count 1 of defendant’s counterclaim, wherein defendant asked damages of $22,500, allegedly arising from plaintiff’s unjustified breaching of the contract and the resultant lost profits to defendant, were tried before a jury. The result was a nine member verdict and a judgment for defendant in the sum of $5,775. Plaintiff has appealed. It is this part of the litigation and this part only which is before us.

It was defendant’s testimony that when the cattle sale was held in September, 1961, only about 30 of plaintiff’s cows had calved and so only about 30 calves were sold. He said the other 20 cows calved shortly thereafter and there was sufficient feed to take care of all of these cattle until August, 1962, the termination date of the contract. It was the testimony of defendant and others that these fifty calves would gain from 400 to 500 pounds in a year and that the animals would be worth about 25 cents per pound. This would amount to an increase of value of $100 to $125 per head. There was also evidence as to the probable value of the 1962 crop of calves if the 50 cows had been retained. Estimates were also made as to the probable value of the two pig crops which could normally be expected from the 35 brood sows, which the parties had in September, 1961. Defendant also produced testimony of the probable value of the 1962 hay, oat, bean and corn crops. On cross-examination it developed that defendant, in 1961, harvested only 41 bushels of beans from 110 acres because of bad weather. Defendant’s testimony as to his damages contained expressions of opinion as to the increased value of the calves after one year’s feeding and growth — also the probable value of the 1962 crops — but did not estimate the cost of keeping the cattle for an additional year or the cost of producing the crops. In addition, 40 acres of the farm was in the soil bank and brought in $1200 in government payments which was the joint property of both parties.

The first assignment of error is that the written contract is so vague and indefinite as to be unenforceable. As heretofore stated, the written document contains sufficient points of agreement so as to be valid and legally binding. The issues tried to the jury are, we think, standing alone, jury questions. The other questions, equitable or otherwise, were by agreement tried to the Court and ultimately disposed of under a stipulation and by agreement. Plaintiff’s point that the Court, sitting in equity, should have resolved the dispute in its entirety, including those issues tried by the jury, is overruled. Plaintiff claims it was error to give Instruction No. 2 because it “does not negate the fact that defendant participated in the preparation for the dispersal sale”. The instruction squarely requires a finding that the sale was held “without the agreement of defendant”. This assignment is overruled.

There remain Assignments 3 and 4. Plaintiff says only the gross selling prices of the claimed future crops and expected future livestock were in evidence with no estimate as to the cost of such production and hence a finding based thereon is speculative and not grounded upon solid, substantial evidence. Plaintiff’s assessment of this expert testimony as to lost profits is essentially correct. In addition, Instruction No. 3 furnishes little guide or direction in the measurement of lost profits. It merely tells the jury to “assess his damages, if any, at a sum equal to the profits, if any, which it may find from the evidence the said Raymond Coe, in reasonable certainty, would have earned under the terms of the agreement in question”. However, plaintiff has not on this feature criticized this instruction in the trial court or here, and offered no instruction more strictly limiting the measurement of damages.

Plaintiff’s fourth assignment is that plaintiff’s action in selling his cattle and filing suit to close up the partnership constituted notice that the contract was terminated as of March 1, 1962 (which termination right either party had by giving 60 days’ notice) and therefore it was (1) error to admit evidence of damages accruing after March 1, 1962, and error to authorize the jury to award damages for any lost profits which might have accrued after March 1, 1962. The plaintiff made specific objection to such testimony when it was offered, pre--served the point in his motion for new trial and presents it here.

We believe that defendant’s evidence as to lost profits is substantial.- The verdict of the jury, while liberal, is not so excessive as to require us to set it aside if defendant is entitled to recover the probable profits which would have accrued up until August, 1962, when the agreement by its terms, expired. On the other hand, if the actions of plaintiff in breaching the contract, terminating the agreement and filing suit in September, 1961, had the legal effect of notifying defendant of termination as of March 1, 1962, according to the terms of the contract, then this judgment must be reversed and the cause remanded for a new trial where defendant’s recovery will be limited to lost profits accruing before March 1, 1962, where his evidence will be so limited and where the jury will be definitely so instructed.

Plaintiff cites two cases which he says support his position. In Bitterman v. Gluck et al., 256 App.Div. 336, 9 N.Y.S.2d 1007, the Supreme Court, Appellate Division, New York, ruled on a two year contract of employment which gave defendant an absolute right to terminate on 30 days’ notice. In that instance defendant discharged plaintiff and the court held that plaintiff was entitled to damages for only 30 days. The court said: “If the employer has the unconditional right to terminate the contract of employment after a certain notice, discharge has the effect of notice to terminate and damages are allowed only up to the time the contract would have terminated if notice had been given”.

We quote from the syllabus in Custen v. Robison et al., 180 App.Div. 384, 167 N.Y.S. 1013: “Where defendants’ contract to deliver yarns to plaintiff for manufacture into bobbins for them provided that it should continue 1½ years, and should be considered renewed for another year, unless either party gave notice in writing to the other party two weeks before expiration that renewal was not intended, but defendants breached the contract before expiration of 1½ years, they thereby gave plaintiff notice of intention not to renew, so that the contract was not for a term of 2½ years, and plaintiff could not recover damages for breach for the last 12 months of such a term”.

Defendant in response to this assignment cites three cases which have to do with instructions and do not even consider this particular point.

In our case each party had the unconditional right to terminate this agreement “by giving the other party written notice of 60 day prior to March 1 of any year”. Clearly plaintiff’s acts of filing suit, selling the livestock and procuring a sale and accounting of the partnership assets amounted to actual notice that he was terminating the partnership (not as of the following March 1, which he had a right to do) but as of September, when the suit was filed and the sale was held. The defendant had knowledge of this termination. In fact, defendant, in his answer and counterclaim alleged that plaintiff had terminated the partnership agreement. It is clear that plaintiff’s notice of termination by these acts amounts to express notice as described in 66 C.J.S. Notice, § 4, page 638, as follows: “Express notice is that kind of actual notice which consists of knowledge actually brought personally home. * * *"

In Merrill on Notice, Voi. I, page 458, we find the following general statement: “It has been said before that notification is notice arising from the performance of some act which the law recognizes as sufficient for that purpose. * * * The formality involved may be no more than a positive statement of one’s claim, position, intended action, desire, or it may take the form of an official pronouncement or edict. It may consist merely of mailing a letter or of posting up a dodger, or of publishing a manifesto in the press. * * * In the so-called notice by lis pendens it may be brought about by commencing a lawsuit. * * *"

Now, except for the termination privilege written into the contract, plaintiff, if he terminated without cause (and the jury found he did), would be liable to defendant in damages for the lost profits arising prior to August, 1962, the ending date of the contract. The trial court allowed such recovery. However, plaintiff had the absolute right to end the agreement for any reason which he deemed sufficient or for no reason whatever except his desire to do so. To avail himself of such cancellation privilege, he was required to notify' defendant 60 days before March first. Plaintiff notified defendant in September, more than 60 days prior to March first. Defendant knew, regarded and pleaded that plaintiff had terminated the agreement. True, plaintiff tried to terminate as of September, 1961, rather than as of March 1, 1962. Plaintiff had no right to terminate as of September, 1961, hence defendant can re« cover damages but only such damages or lost profits as he can show would be reasonably expected to accrue prior to March 1, 1962, the date upon which plaintiff had a legal right to end the joint venture. We hold that plaintiff’s acts were such as amounted to compliance with the contract’s “notice of termination provision”.

The judgment is reversed and the cause remanded for new trial with directions to limit defendant’s recovery to damages, if any, accruing prior to March 1, 1962, rather than to August, 1962.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: GEORGE P. ADAMS, Special Commissioner.

text:
    Grace Baer ADAMS, Plaintiff-Respondent, v. MANCHESTER INSURANCE & INDEMNITY COMPANY, a Corporation, Atkis Boyd and Samuel G. Boyd, Defendants, Manchester Insurance & Indemnity Company, a Corporation, Defendant-Appellant.
    No. 31631.
    St. Louis Court of Appeals. Missouri.
    Nov. 17, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 21, 1964.

      Ray B. Marglous, Clayton, for defendants Atkis Boyd and Samuel Boyd.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, Leo M. Newman, Frank J. Lane, Jr., St. Louis, for defendant-appellant.
    Daniel P. Reardon, Richard F. Pier, St. Louis, for plaintiff-respondent.
   GEORGE P. ADAMS, Special Commissioner.

On May 14, 1960, plaintiff sustained injuries in an accident between her car and a 1953 Cadillac ambulance owned by defendant Atkis Boyd and driven by his employee, defendant Samuel Boyd. On January 3, 1962, in the Circuit Court of St. Louis County, plaintiff recovered a judgment against Atkis Boyd in the sum of $4500.00.

On March 15, 1963, in the Circuit Court of the City of St. Louis, in this equitable action brought under the provisions of Section 379.200 (all statutory references are to RSMo 1959, V.A.M.S.), plaintiff recovered judgment against Atkis Boyd’s automobile liability insurance carrier, defendant Manchester Insurance & Indemnity Company. Manchester appeals.

For some time prior to December, 1959, Atkis Boyd had been operating an ambulance service and doing business as “Boyd Bros. Undertaking Company.” For “quite a number of years” one Louis J. Hannibal, an insurance broker, had been Boyd’s agent handling his insurance business. Hannibal had procured an automobile liability insurance policy with the Missouri Union Insurance Company. This company “went into receivership” and Boyd asked Hannibal to place the policy he had with the Missouri Union Insurance Company in some other company. Thereafter, Hannibal “placed” an insurance policy through an Ed. Wein-stein with the defendant Manchester Company. This policy was “placed” with Wein-stein “ * * * specifically with an endorsement indicating that there was no emergency coverage.”

Under date of December 22, 1959, an automobile liability insurance policy, No. A3577, was issued “Boyd Bros. Undertaking Co.” by Manchester, effective December 13, 1959 to June 13, 1960. The vehicles named in the policy were a “1951 Cadillac Fordor Sedan” and a “1953 Cadillac 5 Dr. Ambulance.” The latter vehicle was the one involved in the accident with plaintiff’s car. ^

Under the same date, and at the same time the policy was issued, the following endorsement was attached:

“ENDORSEMENT

This endorsement, effective 12:01 A.M. DECEMBER 13, 1959, forms a part of policy No. A3577 issued to BOYD BROS. UNDERTAKING CO. by MANCHESTER INSURANCE & INDEMNITY COMPANY

DESCRIPTION OF AUTOMOBILE: 1953 CADILLAC 5 DR. AMBULANCE

MOTOR #5386-22092

IN CONSIDERATION OF THE PREMIUM CHARGED, IT IS UNDERSTOOD AND AGREED THAT COVERAGE HEREUNDER DOES NOT APPLY IF USED AS AN EMERGENCY VEHICLE.

_ED WEINSTEIN_

Authorized Representative

END. #1 12/22/59 cp”

The exact method of the distribution or delivery of the several copies of the policy does not appear from the evidence. However, the foregoing endorsement, as well as additional endorsements numbered 2, 3 and 4, dated January 14, 1960, February 29, 1960 and March 23, 1960, were attached to the copy of the policy which Manchester retained and the copy which the broker Hannibal had. The only evidence relating to the copy of the policy in the hands of Boyd was Hannibal’s testimony that after the accident, and after Boyd had received word from Manchester that he “wasn’t covered,” he, Hannibal, saw Boyd’s copy and at that time Endorsement # 1 was not attached, but Endorsements #2, #3 and #4 were.

Hannibal testified that the premium that Boyd paid for the policy “ * * * was without emergency coverage * * An employee of Manchester testified that the company did not write “an ambulance vehicle” and if the endorsement had not been attached, Manchester would not have accepted the policy.

On May 13, 1960 one Willie Blackman was a patient at St. Louis County Hospital. An “emergency room record” contained the following: “May 13th. Increasing delusions of grandeur for past one month. Schizophrenia. * * * Treatment Dr. Lohr advised to go to jail, and then to Malcolm-Bliss in A.M. * * and, “May 14th. Patient brought back from jail. Patient has hallucinations. Impression Schizophrenia. To Mental Hospital.”

Around 9:30 A.M. on May 14th, the St. Louis County Hospital ordered an ambulance from the Boyd Ambulance Company and told them to pick up Blackman and to hurry because it was an emergency. Defendant Samuel Boyd drove the ambulance and an attendant, Bennie Williams, went with him. They got to the Hospital around 10:00 A.M. When Samuel Boyd got to the hospital, he signed an ambulance trip ticket which identified Blackman’s illness as “an observation case” and said that the illness was “serious.”

Samuel Boyd and the attendant left the hospital with their patient in the ambulance. According to a police report and a state'ment taken by a claim adjuster, both of which were offered in evidence by Manchester and admitted in their entirety, without objection, the driver and the attendant stated: that about 10:30 A.M. the ambulance was being driven east on Chouteau Avenue, as it approached Spring Avenue; that the red light on the ambulance was "going all the time” and before the driver got to that intersection he started blowing his siren; that the traffic on Chouteau was stopped because of a red traffic light; that as the driver came up behind a stopped car and with the red light and siren on, he drove the ambulance into the westbound lane of Chouteau, stopped and sounded the siren; that plaintiff made a left-hand turn off of Spring from the south into the westbound lane of Chouteau and struck the stopped ambulance head-on; that the red light and siren on the ambulance were going at the time the ambulance was hit; that after the accident some lady “came back” and gave the police a statement telling them she heard the siren and then the crash and she came back; that the police took the patient on to Malcolm-Bliss Hospital.

In a statement to the police, plaintiff said she made a left turn onto Chouteau from Spring, keeping her eye on traffic, and when she looked up she saw the ambulance, applied her brakes and collided with the ambulance.

The police report also stated that plaintiff was given a summons “ * * * charged with failure to yield to emergency vehicle * * *."

At the trial below, plaintiff testified that she stopped on Spring before turning left onto Chouteau for “a complete cycle of lights” (traffic) ; that she made a left turn onto Chouteau, went “around” three lanes of traffic and “ * * * no sooner than I made the turn I saw this vehicle and hit my brakes * * that she was stopped at the time of the accident; that the windows on her Triumph sport car were "pushed forward,” were open. On direct examination, she testified she did not hear any siren and did not see a flashing red light.

On cross-examination she testified that after the accident there was a red light on the ambulance. She also testified, without objection by her counsel, that at the accident scene she heard one of the policemen say, “You can turn that siren off now, Buddy. It’s not needed.”

Plaintiff employed counsel and filed suit in the St. Louis County Circuit Court against Samuel G. Boyd and Atkis Boyd. After Manchester declined to defend the suit a “consent judgment” was taken against Atkis Boyd alone for $4,500.00 on January 3, 1962.

On January 11, 1962 the instant action was filed in the Circuit Court of St. Louis City, Missouri. While defendants Atkis Boyd and Samuel G. Boyd were present in person in the Courtroom at the trial below, they were not represented by counsel; nor did they testify.

At the conclusion of the trial, and on March 15, 1962, the trial court made “Findings of Law and of Fact” wherein it found: that defendant’s policy was in full force and effect; that the endorsement “ * * * invalidating coverage while the vehicle was being used in emergency service * * * ” was never a valid part of the policy; that the accident occurred; that Samuel Boyd was agent of Atkis Boyd; that Samuel Boyd was negligent and plaintiff sustained injuries as a proximate result of his negligence; that plaintiff was not contributorially negligent; that under the doctrine of respondeat superior Atkis Boyd was legally responsible for plaintiff’s injuries and damages; that the ambulance was “ * * * not making an emergency run * * * ” at the time ' of the accident; that plaintiff sustained “serious injuries”; that the “consent judgment” was a valid judgment, entered into in good faith and based on legal liability and was reasonable in amount; that there was no collusion or fraud involved in the taking of said consent judgment;' that there was nothing done by plaintiff or Boyds to afford a valid reason for Manchester to “ * * * disclaim coverage, refuse to investigate said accident, defend said suit or pay such aforesaid judgment”; that the St. Louis County judgment was binding on Manchester and must be paid under Section 379.200.

On March IS, 1963, judgment was entered against Manchester for $4500.00 and costs. Following the overruling of Manchester’s after-trial motions, it has appealed.

In this equity action we are required by Rule and Statute, Civil Rule 73.01 (d), V.A.M.R. and Section 510.310, subd. 4, to review the case upon both the law and the evidence and determine the credibility, weight and value of the testimony, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Long v. Kyte, Mo., 340 S.W.2d 623, 628 (5). However, where as here, the entire record consists of writings, documents and, with one exception, uncontradicted oral testimony, the same deference is not accorded the trial court as would be if the evidence consisted largely or entirely of disputed oral testimony. Meyers v. Smith, Mo., 375 S.W.2d 9, 13(1); In re Toler’s Estate, Mo., 325 S.W.2d 755, 759(3); Halstead v. Mustion, 166 Mo. 488, 66 S.W. 258, 260(5). The exception mentioned is the testimony of plaintiff that she did not see a red light or hear a siren.

Defendant Manchester’s initial complaint is in two parts. First, that the trial court erred in its Finding of Law and of Fact numbered 2, that the “ * * * endorsement invalidating coverage while the vehicle was being used in emergency service was never a valid part * * * ” of the policy, and, second, in its Finding of Law and of Fact numbered 8, that the “ * * * ambulance was not making an emergency run at the time of the accident. * * * ” These will be approached in their inverse order.

In this action, Manchester may assert any defense against plaintiff which it might have asserted as a defense in an action brought against it by the Boyds. Meyers v. Smith, supra, 375 S.W.2d page 13(2); Donlon v. American Motorists Ins. Co., Mo.App., 147 S.W.2d 176, 178(2). The defense of “no coverage” is, of course, one which might have been asserted in an action brought by the Boyds had they, or either of them, paid the judgment. In asserting t such defense, however, Manchester has the burden of proving that “emergency vehicle coverage” was excluded and that the vehicle was in fact being used as an emergency one. Kelso v. Kelso, Mo., 306 S.W.2d 534, 536(2), 71 A.L.R.2d 258.

There is really little dispute between the parties as to the law to be applied in determining whether the ambulance was being used as an emergency vehicle. In addressing the trial court in connection with an objection, plaintiff’s counsel stated: “The whole question is whether this is an emergency run. Whether the driver had reason to believe this was an emergency.”

There are, apparently, no Missouri cases passing on the precise question presented here providing a test to determine when a private ambulance is an emergency vehicle.

Our statutes define an emergency vehicle as, among others, “Any privately owned vehicle operated as an ambulance when responding to emergency calls.” Section 304.-022 subd. 3(2). This is not helpful, however, in determining what constitutes an “emergency call” or an “emergency.”

Plaintiff states, and correctly, that “whether an emergency exists is to be determined from all the circumstances,” and whether there was actually an emergency “was a question of fact for the trier of the facts.”

In the case of McElwee et al. v. Mfrs. Casualty Ins. Co., Court of Civil Appeals of Texas, 221 S.W.2d 381, p. 383, cited by plaintiff, the trial court gave this instruc-. tion:

“The test as to whether the ambulance in question was ‘being used to answer an emergency call’ depends upon (1) the nature of the call that was received and (2) the situation as presented to the mind of the driver at the time he received the call and (3) the manner in which he drove and operated the ambulance in response to stick call, and not upon whether an emergency in fact existed.” (Emphasis and parenthetical numerals supplied.)

So also, in the California case of Head v. Wilson et al., 36 Cal.App.2d 244, 97 P.2d 509, 514, it was said:

" * * * It cannot be believed that the legislature intended that the character and extent of an emergency must be investigated and determined in advance before the privileges accorded to an authorized emergency vehicle are available to the driver of an ambulance. It may be conceded that a publicly owned ambulance is sometimes used for other purposes than responding to an emergency call. This very fact makes it necessary to determine in a particular case whether it is then being used in responding to such a call. That fact must, and does, depend upon the nature of the call that is received and the situation as then presented to the mind of the driver of the vehicle, and not upon whether an emergency in fact then exists as this may be disclosed by future developments. * * * ”

We think that the test used in the Mc-Elwee case is fair and adequate.

' What then was the “ * * * na- ' ture of the call that was received * * * ” by Samuel Boyd? It was “ * * * to hurry to the County Hospital and pick up a patient because it was an emergency. •* ■* ” When Boyd got to the hospital he signed an .ambulance trip ticket showing the “illness” was “serious.” Certainly the “ * * * situation as presented to the mind of the driver at the time he received the call * * * ” and as substantiated by the notation “serious” on the ambulance trip ticket, justified his conclusion that it was truly an emergency. He approached the intersection of Spring and Chouteau with his siren on and his red light flashing and drove into the westbound lane against traffic that would be coming in the opposite direction. The “manner in which he drove and operated the ambulance in response to such call” indicated a state of mind responding to an emergency. He was exercising some of the privileges only accorded the “driver of an emergency vehicle” under Section 304.022, viz., operating his vehicle other than “upon the right half of the roadway” as required by Section 304.015, subd. 2; was sounding his siren and had his red light on, which he was not permitted to do “ * * * except when said vehicle is responding to an emergency call, * * * ” Section 304.022, subd. 4 (1) ; and, according to plaintiff’s testimony, was proceeding “ * * * past a red or stop signal * * contrary to Section 304.022, subd. 4 (2) (b).

Plaintiff’s testimony that she did not see a red light or hear the siren, besides being negative in character, is disputed in part by her own cross-examination when she testified that she did see a red light on the ambulance, after the accident.

The testimony of the lady who “came back” and gave the police a statement that she heard the siren and then the crash, and the policeman whom plaintiff heard say, “You can turn that siren off now, Buddy. It’s not needed,” and the statements of Samuel Boyd and Bennie Williams all contradict plaintiff’s recollection.

The evidence is overwhelming and Manchester has sustained the burden of proving by a preponderance or greater weight of the credible evidence that at the time of the accident the ambulance was being “ * * * used as an emergency vehicle * * and within the exclusion of Endorsement No. 1. .■

The trial court erred in its Finding of Law and of Fact numbered 8.

What then of Finding of Law and of Fact numbered 2 that the endorsement excluding emergency coverage was never a part of the policy ?

The evidence stands uncontradicted that Louis Hannibal had handled Boyd’s insurance and had been his agent for that purpose “quite a number of years.” When the Missouri Union went into receivership, Boyd requested Hannibal to place the policy in another company and gave no directions as to what company, leaving that entirely up to Hannibal. Neither did Boyd direct him to obtain emergency coverage on the ambulance. Hannibal contacted Weinstein, who in turn apparently contacted Manchester for the policy. Hannibal “placed” the policy “ * * * specifically with an endorsement indicating that there was no emergency coverage” and the premium paid “ * * * was without emergency coverage * * Manchester would not have accepted the policy if it had not had such endorsement. The policy with the limiting endorsement was what Hannibal “understood” was “ * * * in accordance with Mr. Boyd’s understanding.”

Hannibal was “first employed” by Boyd “to procure insurance” for him and in ordering the policy in question from Wein-stein, Hannibal was Boyd’s agent and his act was the act of Boyd. H & H Manufacturing Company v. Cimarron Insurance Company, Mo.App., 302 S.W.2d 39, 43(3, 5). Therefore, Manchester’s policy of insurance No. A3S77, with an endorsement excluding coverage if the 1953 Cadillac was being “used as an emergency vehicle” was exactly what Boyd ordered and paid for.

It is interesting to note that there is not one word of evidence that Boyd in fact ever expected greater coverage.

Plaintiff does not seriously, or in any event effectively, dispute that the policy as contracted for did not include coverage while the vehicle was used as an emergency vehicle. She seeks to support the trial court’s finding that the endorsement was never a valid part of the policy on two grounds. She says that the “ * * * accident was covered under the insurance policy * * * ” because (1) “ * * * the emergency exclusion was never communicated to the policyholder,” and (2) “ * * * there was no consideration to support the endorsement cutting down policyholder’s coverage.”

Attending the second contention first — it should be kept in mind that if she seeks to avoid the exclusion on the ground that there was no “consideration” for “cutting down” the coverage, she would have the burden of proving that Boyd had in fact originally had a “coverage” that was “cut down” by the endorsement.

The only testimony in the entire record relating to whether the premium charged included an emergency vehicle coverage was that of Hannibal, who said that it did not. Manchester’s underwriter said she did not have the 1959 rates before her, but that an “ambulance” rate listed in a manual would not “necessarily” afford full coverage since “that is left up to the Company.” There is no evidence that the premium paid included “emergency coverage”; and to the contrary, the only unequivocal testimony is that of Hannibal who said that it did not.

The evidence shows that Boyd bought and paid for a policy under which liability for an emergency vehicle was excluded from the outset. The endorsement was as much a part of the policy as any condition or agreement printed in the regular form; the same as if it appeared under the section entitled “Exclusions.” There was no “cutting down” on the coverage. The “coverage” commenced and continued the same.

The endorsement itself dispels any question of “cutting down” without consideration. It recites' “for consideration of the premium charged, it is understood and agreed that coverage hereunder does not apply if used as an emergency vehicle.” The “consideration” paid did not include emergency coverage. There never was a broader coverage contracted for and, therefore, never anything to be “cut down” by the endorsement.

As to the other contention of plaintiff that the emerg-ency exclusion was never communicated to the policyholder, the simple answer is that it was. Delivery to, or receipt of, the policy, with the endorsement attached, by Hannibal, Boyd’s agent, was ‘'communication” to the policyholder.

However, a more fundamental question is involved here. By the contract of insurance, Manchester never obligated itself to assume payment of any loss arising out of the use of the 1953 Cadillac as an emergency vehicle. Boyd had no right to expect it to do so. Whether he ever knew of the terms of the policy as issued, there was nothing that he had done toward ordering the policy that would have permitted him to expect such coverage. The policy as issued was just what was ordered, contracted and paid for.

If there was an oversight in failing to attach the endorsement to the original or copy of the policy that came into Boyd’s hands, the liability of the Company was not enlarged. An error of omission to attach the endorsement should be no different than say a mistake in typing in the amount of coverage. Here Boyd ordered and paid for 5,000-10,000 bodily injury liability. If a mistake had been made in preparing the policy and the figures “$50,000-100,000” were shown as the amount of bodily injury liability, no one would contend that plaintiff could have recovered $45,000 from Manchester.

There is no evidence in the record that Boyd got anything less than what he ordered. However, if he had claimed that he had instructed Hannibal to obtain emergency coverage, and there was a mistake in not obtaining such coverage, “such was the mistake ,of” Boyd and “not of defendant insurer.” H & H Manufacturing Company v. Cimarron Insurance Company, supra, 302 S.W.2d page 43(5).

Also, if for some reason, presently undisclosed, Manchester was estopped to deny coverage or had waived its right to rely on the exclusion, such estoppel or waiver should have been pleaded and proved by plaintiff. Hankins v. State Farm Mutual Automobile Insurance Company, Mo.App., 379 S.W.2d 829, 830(1) ; Cheatham v. Kansas City Life Ins. Co., Mo.App., 241 S.W.2d 47, 51(3).

The trial court erred in its Finding of Law and of Fact numbered 8.

We find and hold that at the time of the accident the 1953 Cadillac ambulance was being “used as an emergency vehicle” and was not covered by the policy of insurance and Manchester is not liable for the payment of the St. Louis County judgment.

In view of the disposition that we have made of Manchester’s first assignment of error, consideration of other assignments is unnecessary.

This cause should be reversed, with directions to the trial court to enter judgment for defendant Manchester Insurance & Indemnity Company, and the Special Commissioner so recommends.

PER CURIAM.

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

The cause is reversed with directions to the trial court to enter judgment for defendant Manchester Insurance & Indemnity Company.

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


author: WOLFE, Judge.

text:
    Edward V. GOVRO and June O. Govro, Plaintiffs-Respondents, v. C. M. BEYER, Arthur C. Nettler and Betty J. Nettler, Defendants, C. M. Beyer, Defendant-Appellant.
    No. 31380.
    St. Louis Court of Appeals. Missouri.
    Nov. 17, 1964.
    Rehearing Denied Dec. 21, 1964.
    ■ Albert George Beyer, St. Louis, for appellant.
    Walsh, Hamilton & Corcoran, St. Louis, for respondents.
   WOLFE, Judge.

This is an action in which the plaintiffs seek to recover $300 paid to defendant C. M. Beyer, agent for defendants Arthur C. Nettler and Betty J. Nettler. The $300 was to be applied as earnest money on an offer to purchase a house owned by defendants Nettler and his wife. The money was paid to C. M. Beyer at the time the. plaintiffs made an offer to enter into a contract to purchase the Nettler house. Plaintiffs contend that the contract offered was not accepted, and that the sale was not consummated in accordance with the contract. The defendants counterclaimed for commission and expenses. The trial was to the court, which found for the plaintiffs on their cause of action, and found for the plaintiffs on defendants’ counterclaim. The defendants prosecute this appeal.

The evidence disclosed that the Govros, plaintiffs, were the owners of their home No. 4 Ridge Road in House Springs, Missouri. The Nettlers, defendants, owned a house and five acres of ground on Acorn Drive. The Govros were interested in seeing the Nettler house, and for that purpose they called Mrs. C. M. Beyer, defendant, a real estate agent, with whom the Nettlers had listed their property on Acorn Drive for sale. The Govros were shown the property and they told the agent, Mrs. C. M. Beyer, that they would like to make an offer to purchase the property. Mrs. Beyer came to the Govro home the following day, and the Govros signed a contract to purchase the Nettler home for the sum of $12,500. The contract contained two contingencies. One was that it was to he accepted by the Nettlers within seven days, and the other was that the house that the Govros owned was to be sold within sixty days, and the contract provided that the sale should he closed not later than September 19. The date of the signing of the contract of purchase was on July 19. At this time the Govros gave Mrs. Beyer a check for $300 as earnest money in the event the contract was accepted by the Nettlers. At the time of signing this contract of purchase, the Govros listed their own house for sale with Mrs. C. M. Beyer on a three-months’ listing contract. Up to this point there is no conflict between the evidence presented by the plaintiffs and the defendants.

Mrs. Govro testified that a week after the contract was signed by her and her husband, Mrs. Beyer called her by telephone and told her that the Nettlers had rejected the offer of $12,500, and that the check for $300 would be returned to Mrs. Govro. The following week Mrs. Beyer came to the Govro home with a contract signed by the Nettlers, as a counter-offer on their house, at a price of $13,500. Mrs. Govro declined to sign this contract, and later Mrs. Beyer sent them a copy of the original contract that had been signed by the Nettlers. The Govros decided that they would go ahead, despite the fact that the contract had not been accepted within the seven-day time limit, and that if their own house was sold within sixty days and finances could be arranged, they would buy the Nettler house.

There were some telephone calls between Mrs. Govro and Mrs. Beyer relating to financing the purchase of the Nettler house. Mrs. Beyer asked them to go to some loan company and sign some papers, but Mrs. Govro told her that they would not go or sign anything until their own house was sold. The Govros’ house was never sold, and had not been sold at the time of trial in 1962; nor had any offer to purchase their house been made by anyone during the agency agreement with Mrs. Beyer.

Defendant Beyer, testifying on behalf of defendants, stated that after the plaintiffs signed the contract to buy the Nettler house for $12,500, she obtained the signatures of the Nettlers to the contract and returned it signed within seven days. She said that no counter-offer was ever made, and that she did not know whether the Govr ros got the “counter offer” signed by the Nettlers offering the house for $13,500. She testified that she arranged for a loan and advertised the Govro house for sale, and had taken some people out to see it. She did not maintain that she had at anytime obtained a buyer for the Govro house. She said that she was trying to make a loan on both houses so that a down payment of $5,000 on the Nettler house could be made by the Govros through a loan of that amount on their own home, which the Gov-ros were going to rent to a prospective tenant. Such an arrangement was not in any way supported by any written contracts offered in evidence. There was evidence that phone calls had been made as late as September, 1960 in relation to a loan. The witness stated that on October 4, Mrs. Govro told her that the deal was off. She also testified that when she was told this by Mrs. Govro, her listing contract on the Govro house had fifteen more days to run.

The defendants contended that the sixty-day closing period in the contract had been waived, and they counterclaimed for the commission that would have been paid by the Nettlers had the sale of their house been made, as well as for some alleged expenses in connection with obtaining a loan commitment and for advertising. The only witnesses called were Mrs. Govro for the plaintiffs and Mrs. Beyer for the defendants. As stated, the court found for the plaintiffs on all issues. There was no finding of fact in the court below, nor was any requested.

Our review of cases tried to the court without the aid of a jury is governed by Supreme Court Rule 73.01(d), V.A.M.R. and Section 510.310, RSMo. 1959, V.A. M.S., which provide that we “shall review the case upon both the law and the evidence as in suits of an equitable nature.” This means that we review the entire record upon both the law and the evidence and reach our own conclusions as to the facts, giving due deference to the finding of the trial chancellor. Franco v. J. D. Streett & Company, Mo.Sup., 360 S.W.2d 597. In cases such as this tried without a jury, where the trial court made no finding of fact and conclusions of law, all fact issues shall be deemed found in accordance with the results reached. Sando v. Phillips, Mo.Sup., 319 S.W.2d 648.

The first point raised charges the court below with error in admitting in evidence the counter-offer. In our review of cases tried by the court, we do not consider errors as such in the admission or exclusion of evidence, but we arrive at our conclusions by considering only the evidence which was properly admissible. Louis v. Andrea, Mo.Sup., 338 S.W.2d 96; Triplett v. Wyatt, Mo.App., 360 S.W.2d 386.

Two other points are contained in the brief. The substance of both of these is that the judgment was against the weight of the credible evidence. From the plaintiffs’ evidence it could reasonably be concluded that the only agreement which existed between the plaintiffs and the defendants was that the plaintiffs would buy the Nettler home if their own house was sold within sixty days. The trial court obviously believed the plaintiffs’ testimony, and on the question of the credibility of witnesses, with certain exceptions not here present, we defer to the trial court. The plaintiffs’ house was not sold, and they were unquestionably entitled to a judgment for the earnest money which they had paid to the defendants and which the defendants were wrongfully refusing to return.

The judgment is affirmed.

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