author: RUARK, Presiding Judge.

text:
    Lawrence R. NEWPORT and Roy Hessee, d/b/a Newport & Hessee, contractors, a partnership, Plaintiffs-Appellants, v. W. E. HEDGES and Georgia L. Hedges, husband and wife, Defendants-Respondents.
    No. 8084.
    Springfield Court of Appeals. Missouri.
    June 5, 1962.

      Neale, Newman, Bradshaw, Freeman & Neale, F. B. Freeman, O. J. Taylor, Springfield, for plaintiffs-appellants.
    John B. Newberry, Springfield, for defendants-respondents.
   RUARK, Presiding Judge.

This appeal involves the question as to whether a landowner’s property can be subjected to a lien for improvements constructed by the lien claimant under a contract with the lessee.

The lease was dated October 24, 1959. By it (the owners-defendants) Hedges leased to Lloyd and Mary Cramer an irregular-shaped vacant lot located on South Grant Avenue in Springfield, at a rental of $150 per month, to commence on or before January 1, 1960. The term of the lease was ten years with option for renewal for five years. The lessees were given an option to purchase the land at any time during the first seven years at a price of $18,500.

Under a paragraph entitled “Use of the Premises” the lease stated, “It is agreed that the premises are to be used by Lessee for the operation thereof of a Dog ’n Suds Drive-In restaurant building.”

Under “Building and Improvements” it was stated that “It is recognized that the premises hereby let and leased are at present a vacant lot, tract and parcel of land. The Parties hereto have discussed and agreed that a one-story building known as a ‘Dog ⅛ Suds’ Drive-In is to be erected by the Lessee herein, on this property, in accordance with plans and specifications to be approved by the land owner and in the event the above purchase option is not exercised, this Building shall revert to the owner of the land upon the expiration of the aforementioned ten (10) year primary lease or at the end of the above five (5) year lease option, if same is exercised. As stated before, said building is to be erected by Lessee, and solely at his cost.”

Under “Insurance,” “Lessee herein agrees to pay all fire and other hazard insurance premiums covering the building to be erected, and shall carry a sufficient amount of insurance to replace the building in the event of loss.”

Under “Health and Safety,” lessees agreed to comply with all ordinances, laws, et cetera, “provided however, that nothing in this paragraph shall require the Lessee to make or pay for any improvements, repairs, alterations, additions or structural changes to said premises that are not required of Lessee by other terms and conditions in this Lease set out in other paragraphs thereof.”

Under “Taxes,” lessors agreed to pay taxes and special assessments on the land, and lessees agreed to pay all taxes assessed against any and all improvements placed on the land during the term, said division of taxes to be based on the plats and assessment sheets maintained by the assessor’s office.

Under “Failure to Pay Rent or Other Default,” lessors might, after notice, immediately dispossess lessees, take possession, and re-rent or re-lease, and “may make such changes, alterations or modifications in the building and premises as might be necessary in order to re-rent the premises.”

The “Dog ’n Suds” was a franchised operation described as a drive-in restaurant.

On April 4, 1960, the lessees entered into contract with plaintiffs Newport and Hessee for the construction of a restaurant building at the above site. The contractors were to furnish work and materials “as designated in the plans on sheets 1, 2 and 3 attached,” with the exception that “contractor shall not be required to pave with “asphald paving as shown on the plans, but instead shall be required to grade and pave with tar and gravel surface at a cost figure of $1870.” The contract further provided for installation of water and gas lines from meter locations. The total price was $16,-029, of which $3000 was to be paid when the work was half finished.

The construction was completed sometime that summer. The lessees were unable to pay therefor except the initial $3000, and a lien was filed for the balance. The contractors claim a lien on the whole estate.

The negotiations for the lease were conducted by one Westmoreland (deceased), who acted as agent for the owners. There is no dispute as to the foregoing. The only disputes of fact were (a) as to the value of the vacant lot and (b) as to whether or not the owner-lessor had seen and approved the plans. As to the value, the owner said it is worth $18,500, the option price; that he had purchased the lot in 1956 for “something in the neighborhood of” $3500; that since then he had paid a paving hill in the approximate amount of $1100, a sewer tax bill of about $700, and had the additional cost of getting gas service of $200 or $300; that the $18,500 was about three times what he had in the place but thought that value was justified because of a proposed thoroughfare plan of the city. Defendant was and is an engineer by profession and Director of Public Works and City Engineer of the City of Springfield.

Plaintiffs’ evidence from a real estate broker was that the value of the bare lot is $50 per front foot, or a total of $8710. “It’s higher than it was in October of 1959.”

As to whether the owner had knowledge of and approved the plans: Plaintiff Lawrence Newport, one of the contractors, testified that he went to the city department headed by owner Hedges in order to get a building permit, but “that part of the street hadn’t been laid out, and they was in a doubt about that being a dedicated street. And I took those — well, the next day I— Mr. Hedges was out that day — and the next day I went into his office with the plans, and went over them with him, and he showed me the boundaries, and where the utilities would come in.” He took the plans to Mr. Hedges’ office and laid them on Hedges’ desk; Hedges did not go over them in small detail; he and Hedges went over “those boundaries, and all, and the building, and where it was, the street, where the street come in there, so we could get a street number.” Over and over the witness insisted that “he went over the plans with me” and that a building permit was issued by Hedges’ department subsequently on the same day; that the plans are what is called a “franchised plan” and they had to be altered for the city approval. And such plans, as so altered, were those followed in the construction.

On the other hand, owner Hedges insists that he never approved the plans; that he never saw them until the building was finished; that they were never presented to him for his personal review- as an individual; that permits are issued by people in his department who are considered qualified to judge whether they meet the code. “I don’t believe I ever did, to my knowledge, I didn’t see them until after it was constructed. I came in the office one day, and, here, laying on my desk was a set of plans on this, with no note, or anything, as to who had brought them, or anything else, when I inspected them. I knew where they probably came from, but our office receives many, many plans to review for building permits, and I doubt that I see one out of a hundred on them.” But “to the best of my knowledge” he never saw the plans and specifications before the building was finished. He did say he had seen a picture of a “Dog ⅛ Suds” franchise on a letterhead shown him by West-moreland. He did know the construction-was going on. He saw it a few times as he was driving by on his way to work or lunch. But he did not direct, assist, or suggest in the actual building. Neither did he protest.

Our learned brother below had some difficulty with this case. So do we. Evidence was first heard; then the case was-reopened for further testimony. A judgment was rendered, a motion for new trial was sustained, and further evidence was-received. Thereafter the court in rendering judgment remarked that “the law certainly needs to be clarified,” found that the-lease did not require the tenants to build; that the owner did not approve the plans; and denied the lien against the owners’" property. From that judgment the contractors have appealed.

The liability of the owner’s property for a lien on account of improvements placed thereon by the tenant usually arises, when-it does arise, out of an agency implied in-law. This agency is found where the lease requires the tenant to make substantial improvements, and also where the premises-are let for a specific use or purpose and! such purpose cannot be accomplished except by the making of substantial improvements. Utley v. Wear, Mo.App., 333 S.W.2d 787, and the cases cited therein.

As we have heretofore said in the Utley case, 1. c. 793, the courts have sometimes been required to consider the whole circumstances of the letting. (See 79 A.L.R. 962, 974, anno.; 163 A.L.R. 992, anno.) but that does not mean that the parties can testify to intentions and purposes which are at variance with the written instrument. We must gather the intention of the parties, if possible, from the instrument itself. Curtin-Clark Hardware Co. v. Churchill, 126 Mo.App. 462, 104 S.W. 476, 478; Sol Abrahams & Son Const. Co. v. Osterholm, Mo.App., 136 S.W.2d 86, 92. Neither is it important that the whole project may later have proved to have been mistaken and, as the events later worked out, did not really enhance the value of the property. It is a question of the intention of the parties, to be gathered if possible from their contract at the time of its execution. And the value which the owner expects to realize does not necessarily involve any actual increase in the market value. Masterson v. Roberts, 336 Mo. 158, 78 S.W. 2d 856, 858, 97 A.L.R. 862. It may lie in increased rental value and adaptability to use (Weis & Jennett Marble Co. v. Rossi, 198 Mo.App. 35, 198 S.W. 424, 425); in present benefit of the freehold interest (Dierks & Sons Lumber Co. v. Morris, 170 Mo.App. 212, 156 S.W. 75, 78); permanent and substantial improvements which are beneficial to the owner (American Sash & Door Co. v. Stein, 231 Mo.App. 221, 96 S.W.2d 927, 931; Allen Estate Ass’n v. Fred Boeke & Son, 300 Mo. 575, 254 S.W. 858) ; “substantial betterment” (Dougherty-Moss Lumber Co. v. Churchill, 114 Mo.App. 578, 90 S.W. 405, 406); or in benefit to the reversionary interest (Powell v. Reidinger, Mo., 234 S.W. 850, 852).

The parties argue pro and con as to whether the tenant was required by the contract to put the lot in shape or construct the building. We think the first pertinent inquiry is whether the premises were let for a specific purpose. For if that purpose was definite, then undoubtedly the tenant was “required” to level and pave the lot and put up a building mentioned in the contract in order to accomplish that purpose. Let us examine the lease:

“It is agreed that the premises are to be used by Lessee for the operation thereof of a Dog ’n Suds Drive-In restaurant building.” “The parties hereto have discussed and agreed that a one-story building" known as a Dog ⅛ Suds Drive-In is to be erected by the Lessee.”

Ordinarily the word agree in a legal instrument carries the connotation of a contract or an express promissory covenant. Fish v. Fish, Mo.App., 307 S.W.2d 46, 50; Mackay v. Truchon, 171 Mo.App. 42, 153 S.W. 502, 503. The lease does not say that the premises may be used for a franchised drive-in restaurant; it says they are to be used for that purpose. It does not say that the building may be erected; it says it is to be built. A thing that “is to be must be,” and not may be. White v. Disher, 67 Cal. 402, 7 P. 826.

The fact that the improvements are to “revert” to the owner at the end of the term, although not, alone and in and of itself, sufficient to create the implication in law of the agency, is a factor to be considered in determining the intention of the parties. American Sash & Door Co. v. Stein, 231 Mo.App. 221, 96 S.W.2d 927, 932; Ward v. Nolde, 259 Mo. 285, 168 S.W. 596, 600; Curtin-Clark Hardware Co. v. Churchill, supra, 104 S.W. 476, 478; Marty v. Hippodrome Amusement Co., 173 Mo.App. 707, 160 S.W. 26, 27. The fact that the lessees “agreed” to carry sufficient insurance to replace the building in event of loss is some indication it was considered the building was to be of value to the property. Finally there is the provision that the lessees should not be required to make or pay for any improvements, et cetera, “that are not required of Lessee by other terms and conditions in this lease set out in other paragraphs thereof.” We find no other requirements as to improvements in the lease except those contemplated by putting in the drive-in restaurant. This certainly is more specific than the reluctant consent given in Curtin-Clark Hardware Co. v. Churchill, supra, 104 S.W. 476, 477, or the fact that the tenant was “allowed” to make certain changes with the consent of the owner in Martin-Welch Hardware & Plumbing Co. v. Moor, Mo.App., 16 S.W.2d 667, 668.

We cannot escape the conclusion that the parties not only contemplated and intended but also contracted for the operation of a certain business to be conducted on the then unimproved vacant lot; that the construction of the building, if indeed not required by the contract, was required in fact for the operation of such business. Nor can we escape the conclusion that the owner intended to (and probably did) accomplish substantial benefit to both his present and future interest in what was then vacant property. In view of the repeated assertions by the courts to the effect that the mechanics’ lien laws are to be construed liberally, our conclusion is that the lessees became by implication of law the agent of the owners whereby the owners’ property might become bound for a lien.

There remains one other question. It is argued (although not briefed), and in fact the lower court so found, that the owner did not “approve” the plans. Obviously no tenant should be permitted to subject the owner’s premises to a lien because of erection of improvements without the express or implied consent or approval of the owner. The facts in this case make, we think, a close question. The lease did not provide for any particular manner or method of “approval.”

There is no doubt in our minds that Newport went (to the department of which defendant Hedges was in charge) to get a city permit for the proposed improvement. There is no dispute as to his testimony there was some trouble because of doubt as to whether a portion of the street had been dedicated. Nor is there any dispute that the plans had to be altered to comply with city regulations. There is no dispute that defendant was absent from the department the day Newport went in and that Newport returned the next day with the plans and thereafter the permit was issued. The conflict of testimony rests upon the fact that Newport says he laid the plans on Hedges’ desk and he and Hedges went over them together and Hedges pointed out certain things. Hedges, on the other hand, says that “to the best of my knowledge” he never saw the plans until after the building was completed. Hedges, the engineer, knew from the contract itself that a franchised drive-in restaurant was to be constructed, and after the permit was issued he knew that the construction was going on on his property. Occasionally he would drive by but never stopped to look at it or ask questions. Nor did he object. His attitude was, and his memory of the whole affair is, that of a curiously incurious person. We can defer to the finding of the trial judge to the extent that Hedges did not “approve” of the plans in the sense of putting any personal stamp on them or giving any written formal acknowledgment of approval, but we are further of the opinion that he by his conduct gave tacit or implied approval. Approve means to sanction officially, to ratify, to confirm [Webster’s New International Dictionary (2nd ed.), p. 133]; to sanction, consent to, confirm, or to be favorable toward [Webster’s New World Dictionary (college ed.), p. 72], And one may approve, acquiesce, affirm, accept, alter, or abandon in express words, or such may be implied from the conduct of the parties. Defendant may not now, after such approval, be permitted to realize the fruits of others’ labor and material which have materially benefited his property.

For the reasons aforesaid, the judgment is reversed with directions to enter judgment for the lien in accordance with the prayers of plaintiffs’ petition.

McDOWELL, J., concurs..

STONE, J., not sitting.

      . Since most of the Missouri cases dealing with this problem are cited in that case, we refer to such without necessity of burdening this opinion with them. In addition, we recommend an article entitled “Rights of a Mechanics’ Lienor in Missouri When the Improvements are Contracted for by the Lessee or Licensee of the Land,” Maichel, in the Washington University Law Quarterly of 1952, at p. 453. This article traces the growth of this peculiar implied agency and cites or discusses practically every Missouri case on the subject.

      . Ladue Contracting Co. v. Land Development Co., Mo.App., 337 S.W.2d 578, 584; Herrman v. Daffin, Mo.App., 302 S.W.2d 313, 316; Concrete Engineering Co. v. Grande Bldg. Co., 230 Mo.App. 443, 86 S.W.2d 595, 607.

      . 12 Am.Jur., Contracts, § 356, p. 922; 17 C.J.S. Contracts § 514b (1), p. 1101, § 375, p. 861; 3 C.J.S. Alteration of Instruments § 60, p. 975; 94 C.J.S. Wills § 11, p. 689; Woolfolk v. Jack Kennedy Chevrolet Company, Mo.App., 296 S.W. 2d 511(2, 4); Schwartz v. Shelby Construction Co., Mo., 338 S.W.2d 781, 788; Brown v. George, Mo.App., 260 S.W.2d 836, 839; Stauffer v. Joplin Lumber Co., Mo.App., 207 S.W.2d 825, 828-829; Searritt v. Kansas City & S. Ry. Co., 127 Mo. 298, 29 S.W. 1024, 1025.


source: Caselaw Access Project

author: McDOWELL, Judge.

license: Public Domain

text:
    CENTRAL WOODWORK, INC., a Corporation, Plaintiff-Respondent, v. STEELE SUPPLY COMPANY, a Corporation, Defendant-Appellant.
    No. 8044.
    Springfield Court of Appeals. Missouri.
    June 21, 1962.
    Ward & Reeves, Caruthersville, for appellant.
    Henley & Fowlkes, Caruthersville, for respondent.
   McDOWELL, Judge.

This action was instituted in the Circuit Court of Pemiscot County, Missouri, on April 28, 1960, to recover the sum of $2,-240.12, together with interest thereon, for merchandise and goods sold and delivered to defendant. The cause was transferred to the Circuit Court of Dunklin County on change of venue where it was tried by the court, a jury having been waived, and judgment entered for plaintiff in the amount sued for. From this judgment defendant appealed.

Prior to the trial, to-wit, on February 23, 1961, appellant filed its motion for summary judgment upon the grounds that respondent was a foreign corporation organized under the laws of the state of Tennessee and not licensed to do business in Missouri and had transacted business in the state of Missouri in violation of Sections 351.570 and 351.635 RSMo 1959, V.A.M.S., and, for that reason, was barred from maintaining this action. This motion was submitted to the court along with the case on the merits. The court overruled defendant’s motion for summary judgment.

The only issue raised on this appeal is the correctness of the court’s ruling on defendant’s motion for summary judgment so the statement of facts will be limited to the evidence on that issue.

Central Woodwork, Inc., is a corporation organized under the laws of Tennessee with its place of business and domicile in Memphis. The company has not qualified to transact business in Missouri. It does not maintain any office in Missouri, but employs one salesman who travels in Missouri. He works exclusively for the company and is paid a commission. His territory in Missouri covers the Bootheel area as far north as Sikeston. The company solicits business in Missouri and the salesman regularly travels in Missouri making ■contacts with customers soliciting business. He makes a regular route in Missouri about every two to two and a half weeks. This route consists of the cities •of Sikeston, Dexter, Kennett, Caruthers-ville, Hayti, Steele, Lilbourn, New Madrid, 'Cardwell, Poplar Bluff, Portageville, Sen-ath, Parma, Malden, Bernie and East Prairie, and it has regular customers in these towns. The salesman regularly contacts approximately 30 different customers within the state of Missouri. The Missouri sales represent approximately ten per cent of the total sales volume of the company. The salesman lives in Paragould, Arkansas, and also sells merchandise in that state. His area is confined to northeast Arkansas and southeast Missouri.

Randall Jenkins testified that he was salesman for plaintiff from June 26, 1959, to February 16, 1960, and that during that period he would visit the Steele Supply Company, defendant, about every two weeks. His regular route covers almost every town in southeast Missouri. His territory is Arkansas and Missouri and the percentage of total sales arising in Missouri varies from forty to sixty percent. In addition to selling merchandise to Missouri customers he talks to customers about complaints they have concerning merchandise and adjusts complaints and, on occasions, assists his Missouri customers in selling his company’s products. He talks to various persons in Missouri in order to help his Missouri customers sell their products to local customers. On some three or four occasions the salesman has gone with employees of defendant-company to the site of local construction to check products furnished by respondent. He visits construction sites on an average of about once a week where Central Woodwork products were being used. These trips were made at the request of the local retail lumbermen and sometimes he went for the purpose of helping the local lumbermen dealers sell a job.

The defendant offered no evidence.

Under points and authorities relied upon by appellant it is stated that the court erred in overruling the appellant’s motion for summary judgment because the evidence disclosed that respondent is a foreign corporation, not licensed to do business in Missouri, was conducting a purely local and intrastate business within this state in violation of Section 351.635 RSMo 1959, V.A.M.S., and hence is precluded from maintaining this action under the provisions of Section 351.570 RSMo 1959, V.A.M.S.

To support this contention appellant cites Seneca Textile Corp. v. Missouri Flower & Feather Co., Mo.App., 119 S. W.2d 991; Western Outdoor Advertising Co. of Nebraska v. Berbiglia, Inc., Mo.App., 263 S.W.2d 205; and M. A. Kelly Broom Co. v. Missouri Fidelity & Casualty Co., 195 Mo.App. 305, 191 S.W. 1128.

Section 351.570 RSMo 1959, V.A.M.S. provides: “A foreign corporation organized for profit, before it transacts business in this state, shall procure a certificate of authority so to do from the secretary of state. * * ⅜ ”

Section 351.635 RSMo 1959, V.A.M.S. provides: “Every foreign corporation now doing business in or which may hereafter do business in this state which shall neglect or fail to comply with this chapter shall be subject to a fine of not less than one thousand dollars to be recovered before any court of competent jurisdiction; * * * in addition to which penalty, no foreign corporation, failing to comply with this chapter, can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of the contract or tort, while the requirements of this chapter have not been complied with.”

Seneca Textile Corp. v. Missouri Flower & Feather Co., supra, was a suit by a foreign corporation to recover for merchandise allegedly sold and delivered to the defendant wherein defendant relied on the statute providing that a foreign corporation doing business within the state without compliance with the statutes cannot maintain any suit. The lack of qualification of the plaintiff to do business in Missouri at the time of the transaction was conceded. Plaintiff maintained an office in St. Louis as well as a home office in New York. The goods from the foreign state were shipped to a warehouse in Missouri. The foreign corporation’s agent caused the goods to be shipped out of the warehouse to fill orders that the agent had procured from customers within the state. The court held that the business in St. Louis was conducted by the agent as plaintiff’s alter ego and with the apparent intent to make it appear that plaintiff was engaged in interstate commerce; that the shipment to the warehouse ended the interstate journey and that when the agent shipped out the goods to customers procured in the state constituted intrastate shipment. This case does not support appellant’s contention because the facts are entirely different.

Plaintiff, respondent, in the instant case, maintained no office or warehouse in Missouri. All shipments made under orders taken from customers in Missouri were from plaintiff’s office in Memphis directly to the customer.

Western Outdoor Advertising Co. of Nebraska v. Berbiglia, Inc., supra, was an action for rentals due under a contract for the erection of advertising signs. Recovery was denied because plaintiff-foreign corporation did not comply with Missouri statutes. The court stated this law 263 S.W.2d on page 209:

“ * * * However, we recognized the rule that a determinative factor of whether the business was intrastate in nature was the question of continued dealing by the foreign corporation with the property after interstate commerce had wholly ceased, and whether that continued dealing was an isolated transaction or a continuing form of the business of the foreign corporation. * * * ”

The facts in this cited case were that plaintiff continued to deal with the signs after the interstate shipment had ceased and derived its sole profit from such dealing over a period of years. The title to the signs remained in plaintiff subject to its maintenance and subject to being re-rented at the expiration of the original lease period. We find that these facts are so different from the facts in the instant case that they do not support appellant’s contention.

M. A. Kelly Broom Co. v. Missouri Fidelity & Casualty Co., supra, involved the same issue as in the instant case. The facts were that M. A. Kelly Broom Company, incorporated under the laws of Kansas, was prosecuting its business by shipping its brooms to a place of business in Missouri and selling the same which had been manufactured in Kansas. In carrying out its business it was necessary to employ an agent in Missouri and to assure his fidelity by securing a surety bond for the performance of the agent’s business. The court held that this constituted intrastate business. This case is not an authority for appellant in the instant case.

In Superior Concrete Accessories v. Kemper, Mo.Sup., 284 S.W.2d 482, 486[3] the law is stated:

“The solicitation of orders for goods within a state by a foreign corporation through a resident broker or commission merchant who maintains a local office at his own expense, and the shipments of goods by the foreign corporation into the state directly to the purchasers pursuant to such orders, constitute business in interstate commerce, and does not constitute doing business within the state so as to subject the foreign corporation to local statutes prescribing conditions for doing business within the state.” [Citing much authority] ; Simplified Tax Records, Inc. v. Gantz, Mo.App., 333 S.W.2d 328; Dinuba Farmers’ Union Packing Co. v. J. M. Anderson Grocer Co., 193 Mo.App. 236, 182 S.W. 1036.

Under the law as declared by the Supreme Court in the Superior Concrete Accessories case, above cited, we find that the facts in the instant case fail to show that plaintiff-respondent was engaged in intrastate commerce; that the trial court was not in error in overruling appellant’s motion for summary judgment. We find that the evidence in the instant case merely shows that respondent solicited orders for goods within the state through a commission agent and that said orders were transferred to plaintiff’s office in Memphis and there approved and shipped directly to the purchasers. In fact, some of the orders which were filled and constitute a part of plaintiff’s cause of action, were made directly by the customers through long distance telephone. Such orders constituted a business in interstate commerce and do not constitute doing business within this state so as to subject plaintiff, a foreign corporation, to the local statutes prescribing conditions for doing business in this state.

Judgment affirmed.

RUARK, P. J., and STONE, J., concur.


author: SPERRY, Commissioner.

text:
    John Albert STEPHENS, Plaintiff-Respondent, v. HENNINGSEN, INC., Defendant-Appellant.
    No. 23554.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Morrison, Hecker, Cozad & Morrison, Karl F. Schmidt, William V. North, Kansas City, for appellant.
    Dwight Roberts, Homer R. Hines, Kansas City, for respondent.
   SPERRY, Commissioner.

This is a suit for damages growing out of a collision between an automobile, being operated by plaintiff, and a tractor-trailer, being operated for defendant by its agent, Folan. From a verdict and judgment for plaintiff in the amount of $6,000.00, defendant has appealed.

The collision occurred on a bridge located on U. S. Highway 71, five miles south of Butler, Missouri. Plaintiff’s automobile was proceeding southward and defendant’s truck was proceeding northward, both travelling at reasonable speeds.

Plaintiff offered the testimony of Trooper Brewer, Missouri State Highway Patrol. He stated that he investigated the accident and identified a diagram (exhibit 1) made by him at the scene; that the banisters of the bridge are 160 feet long, the bridge 20 feet wide; that a circle with an x in it, shown on the diagram which was admitted in evidence, marked the point of impact between the vehicles; that another marking indicated where the truck hit the east banister of the bridge 51 feet south of the north end; that pictures showing markings on the bridge showed where the truck struck the east banister and where the rear end of the car struck the west banister. He also stated that, on the diagram, plaintiff’s car was shown to be on the wrong, or east side of the center line of the highway; that he did not show, on the diagram, any part of defendant’s truck as being on the west side of the center line of the highway; that he based his testimony as to where the collision occurred on what the truck driver and a witness told him; and he said, on cross-examination, that he could not say that the markings shown on the bridge were made by the truck.

Plaintiff testified to the effect that, as he was approaching the bridge, there was a car about 75 feet ahead of him; that he saw defendant’s truck come around the curve “astraddle” of the center line, coming north, toward the bridge; that it was trying to get over to its side of the highway; that as the two vehicles proceeded, the truck hit the bridge and bounced off, striking plaintiff’s car on the front fender; that he remembered nothing more.

Mr. Eolan, operator of the truck, testified that he is an over-the-road truck driver; that the unit was 45 feet in length; that the tractor is seven and one half feet and the trailer eight feet in width; that, as he approached the bridge, he saw two cars coming south; that the truck was travelling 30-35 miles per hour; that there was a car following him being driven by Mr. Ure; that after he was on the bridge, the second of the two cars suddenly swerved over and caught the left front fender and wheel of the truck, and bounced the truck into the bridge railing; that the truck was caused to follow along against the railing because the car “followed on around”; that the accident occurred about 50 feet south of the north end of the bridge.

Defendant read into evidence the deposition of Mr. Ure, taken on behalf of plaintiff by his counsel, Mr. Roberts. Mr. Ure stated that he was a resident of Kansas City, Kansas; that he was employed at Macy’s in Kansas City, Missouri; that he drives a truck to Joplin once a week over highway 71; that he was alone, driving his truck, following defendant’s truck, when he witnessed the collision here in controversy; that he saw a tractor trailer preceding him, and two cars coming from the north; that after the cars were on the bridge the second car swerved into the north bound traffic lane; that he could see it swerve because of its headlights; that it appeared from the headlights that the driver of the second car tried to get back into his lane again; that, after the collision, the truck swerved to the east and scraped the east side of the bridge, then swerved to the west and went down the embankment on the west side of the highway, north of the bridge; that he talked to -trooper Brewer only to give him his name and address; that he did not ask him anything else; that the truck was on its side of the highway when the accident occurred; that he was served with a subpoena for deposition by plaintiff’s attorney, at Macy’s, his place of employment; that the deposition was taken at plaintiff’s attorney’s office in Kansas City, Missouri.

The above constitutes all facts necessary to a decision of the one issue here presented. Defendant contends that reversible error was committed because of improper remarks by counsel for plaintiff, and the failure of the court to act so as to effectively remove the prejudice injected into the case by reason of such remarks.

The objectionable portion of the argument by plaintiff’s counsel is as follows:

“MR. ROBERTS: * * * You will remember Mr. Ure, the witness whose deposition was read here and whom they don't want to bring in for their own reason. I don't know why. (Emphasis ours.)
“MR. SCHMIDT: Just a minute, Mr. Roberts. I believe that the court should instruct the jury that if Mr. Roberts wanted to bring this witness in, he was as available to Mr. Roberts as he was to the defendant, and Mr. Roberts was perfectly free to present him to this court, and I object to the remarks and ask the court to instruct the jury that the remarks are improper and certainly untrue. (Emphasis ours.)
“THE COURT: The jury will consider the evidence and is instructed that the witness was as available to the plaintiff as he was to the defendant.
“MR. ROBERTS: At any rate, he was not here, * ⅜! * ” and, later, Mr. Roberts said:
“Now, when we talk about the evidence, we are going to have to talk about the defendant’s witnesses, Folan and Ure. Ure was not here and I couldn’t cross-examine him, I am sorry to say.
“MR. SCHMIDT: Well, now, just a minute. Your Honor, I am going to object to that. Mr. Roberts took Mr. Ure’s testimony and deposition and cross-examined him for 52 pages.
“MR. ROBERTS: That was not the cross-examination. That was the examination direct.”

Defendant objected to counsel’s stating that defendant didn’t want to bring in Mr. Ure “for their own reason. I don’t know why”. It is noted that defendant not only objected to the remarks but asked the court to instruct the jury that the remarks are improper and untrue. The court simply said that the witness was as available to plaintiff as he was to the defendant.

It is error for counsel to comment on the failure of an adversary to produce a witness who is equally available to both parties. Belding v. St. Louis Public Service Company (Mo. en banc), 358 Mo. 491, 215 S.W.2d 506, 514. Such an argument is reversibly erroneous where the court overrules the objection and fails to admonish the jury to disregard it. O’Donnell v. St. Louis Public Service Company, 246 S.W.2d (Mo.App.) 539, 544. In Rice-Stix Dry Goods Company v. Sally, 176 Mo. 107, 148, 75 S.W. 398, the court held that, where an improper and prejudicial argument had been made, similar to that here complained of, it was the plain duty of the court, upon objection, to have expressed its disapproval of the remarks, in the presence of the jury, in such emphatic language as to destroy any impressions which may have resulted therefrom. However, in that case, the court overruled the objection whereas, here, the ruling amounted to a weak sus-tention of the objection; but the court here did not, as requested, instruct the jury that it was improper and untrue for counsel to say that defendant “didn’t want to bring (the witness) in for its own reason. I don’t know why”.

In Hankins v. St. Louis-San Francisco Railway Company, 31 S.W.2d (Mo.App.) 596, 599-600, where an improper argument was made with reference to failure of defendant to call certain medical witnesses, it was held that merely sustaining the objection and telling the jury to disregard the argument is not always sufficient to counteract the influence on the jury of the improper statement. There, it was requested that the jury be discharged, whereas, here, no such request was made. But the fact remains that the court was requested to inform the jury that the remarks were improper and untrue. If that had been done it would have amounted to a reprimand of counsel. The court should have severely reprimanded counsel and should have told the jury to disregard the remarks. Williams v. Columbia Taxicab Company, 241 S.W. (Mo.App.) 970, 973; Jackman v. St. Louis & H. Ry. Company, 206 S.W. (Mo.App.) 244, 246.

The remarks were also improper because of the plain provisions of Rule 57.29, V.A.M.R. In Lewellen v. Haynie, 25 S.W.2d (Mo.App.) 499, 505, it was held that, in considering the credibility of witnesses, the deposition of a witness read in evidence should be given the same consideration as if the absent witness were personally present testifying. Here, offending counsel had, himself, taken the deposition consisting of 52 pages and could not have been surprised when it was read in evidence by defendant.

We recognize the rule that, to be reversible error, remarks of the counsel must have been such as to make it reasonably probable that prejudice to the opposing party resulted therefrom and that the jury was influenced thereby in the rendition of its verdict. City of Kennett v. Katz Construction Company, 273 Mo. 279, 202 S.W. 558, 562; Jackman v. St. Louis & H. Ry. Co., supra, 206 S.W. 246; Williams v. Columbia Taxicab Company, supra, 241 S.W. 973.

In this case, liability or nonliability of defendant rested on the question of whether or not its truck moved into the path of plaintiff’s automobile. Plaintiff said that it did; and his witness, Brewer, (who was not an eyewitness of the accident) testified to facts from which, he stated, in effect, that it did. This was a fact vital to plaintiff’s case.

Defendant’s truck operator stated that plaintiff’s vehicle swerved into the north bound traffic lane, causing the collision. Mr. Ure stated that he saw the collision; that the headlights of plaintiff’s vehicle swerved into the path of defendant’s truck; that the truck did not swerve into the other traffic lane until after the collision had occurred and it had struck the side of the bridge. His testimony was vital to defendant’s case. If the jury believed, as' counsel for plaintiff strongly and improperly insinuated, that defendant should have placed Ure on the stand so that plaintiff’s counsel could cross-examine him in the court room, and had failed to do so for reasons of its own, “I don’t know why”, then the jury may have believed that Ure, under cross-examination, would have testified differently from what he did in his deposition. Such was, unquestionably, the impression sought to be conveyed by counsel’s argument. The jury may well have questioned the credibility of Ure, under the circumstances here shown.

In further aggravation of the error of plaintiff’s counsel’s first remarks concerning the failure of defendant to produce Ure in court for reasons of their own, and after the court had ruled thereon and had stated that the witness was equally available to plaintiff, counsel resurrected his complaint and said: “Ure was not here and I couldn’t cross-examine him”. The court failed to rule defendant’s objection to that statement. Thus, counsel ingeniously freshened the minds of the jhrors by alluding to it in such a way as to remind the jury of the absence of defendant’s witness, Ure, from the court room, and of counsel’s contention, previously made, that defendant was at fault in not producing the witness and thereby depriving him of an opportunity to cross-examine. The silence of the court, on this occasion, might have led the jury to believe that Ure was improperly absent as a result of some dark motive and action of defendant. This conduct and these remarks are in the teeth of Rule 57.29, supra, and of the well known principle that a witness who testifies by deposition is to all intents and purposes, present in court. It is error for counsel to say or to insinuate otherwise.

In view of the facts here shown we rule the error to be reversibly erroneous.

The judgment is reversed and the cause is remanded.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


author: STONE, Judge. RUARK, Presiding Judge.

text:
    C-, Plaintiff-Respondent, v. B-, Defendant-Appellant.
    No. 8014.
    Springfield Court of Appeals. Missouri.
    June 12, 1962.

      Miller, Fairman, Sanford, Carr & Low-ther, Mayte Boylan Hardie, Gerald H. Lowther, Springfield, for defendant-appellant.
    Clay Cantwell, Branson, for plaintiff-respondent.
   STONE, Judge.

This is an appeal by B- (hereinafter referred to as the mother) from that portion of the decree in a divorce suit by C- (hereinafter referred to as the father) which awarded to the father care and custody of K- (hereinafter referred to as the child), their minor daughter about 71/2 years of age at the time of trial and now 8½ years of age.

The father, then 19, and the mother, then 17, first took their marriage vows, “till death do us part,” on January 25, 1953. Before their child entered this world about nine months later, the father had gone into military service. Following his discharge in March 1955, the father and the mother lived together about seven months. Shortly after their separation in November 1955, that marriage was terminated by a decree granting a divorce to the mother (upon grounds not here disclosed) and awarding to her custody of the child. On January 10, 1959, the father, then 25, and the mother, then 23, took the same marital vows again. Exactly four months thereafter, towit, on May 10, 1959, this remarriage ran aground when (as the father alleged and as the trial court found) the mother “deserted” the father and, rejecting his plea to return to the family home, went to St. Louis where she remained until September 1960.

In his petition in conventional form filed on December 3, 1960, the father charged general indignities and sought a decree of divorce and custody of the child. In her answer filed on January 3, 1961, the mother admitted the marriage and separation and the birth of the child, denied all other allegations in the petition, and affirmatively averred that “it would be to the best interests of the (child) that she remain in the care and custody of the defendant (mother).” At the outset of trial on February 27, 1961, the mother’s then counsel (not appearing on appeal) announced that “the defendant (mother) desires to introduce testimony to show that (she) is . . . a fit and proper person to have the care and custody of the child . . . but the divorce itself is not to be contested.”

In addition to supporting the charges in his petition, the father testified that he was a plumber with average annual earnings of approximately $4,000; that he then lived with his parents (in their middle sixties) in their farm home; that, when the mother went to St. Louis, she left the child with the maternal grandmother, then 55 years of age, in a neighboring county seat; that he had contributed varying amounts to the child’s support and had given her clothes and presents; that, in his opinion, he could care for the child and rear her properly and, if awarded her custody, he would keep her with him in the home of the paternal grandparents; but that, if the court granted custody to someone else, he would contribute $30 per month (the sum suggested in the question propounded) for the child’s support. On direct examination, the father also expressed the opinion (without objection) that either he or the mother “would be a proper and fit person to care for this child”; and, on cross-examination, he conceded the further opinion (without objection) that “it would be to the best interest of the minor child if the court would see fit to grant the care and custody of the child to your wife (the mother)” and that he was willing for the court so to do. After two character witnesses had testified for the father, his counsel rested and the mother took the stand.

The mother having stated that the child was at the home of the maternal grandmother, counsel inquired whether “you (the mother) and your mother (the maternal grandmother) and little girl live there in your mother’s home” and the mother replied, “yes, but I am in-,” naming a city about sixteen miles distant (hereinafter referred to as the nearby city). After further interrogation had developed that the mother was working regularly in the nearby city and that her hours of employment included three nights each week, counsel sought the mother’s assurance that ■“when you are not working, you can be home and look after your little girl” but elicited only the uneasy, uncertain reply, “I think so.” However, the mother definitely stated that she desired the custody of the child, that she had contributed to the child’s support, and that, if the father would contribute $30 per month, she could “finish out the amount it (would) take to support the child for the present.” The mother was not cross-examined. On this record, the trial judge took the case under advisement.

At a further hearing on April 3, 1961 (with the same attorney again appearing on behalf of the mother), the father’s counsel called the maternal grandmother to the witness stand. She told the court that she had reared three children (including the mother), all of whom were grown and away from home, and that the child had lived with her “about all of (the child’s) life” and was living in her home at the time of hearing. The child then was in the second grade at school. The maternal grandmother, a widow, was employed in a hardware store, and a baby-sitter cared for the child during those hours when the grandmother was at work and the child was out of school. The father theretofore had contributed “a little” and the mother had provided clothes and had paid “some” for the child’s support. At the conclusion of the grandmother’s testimony, the court entered a decree granting a divorce to the father and awarding legal care and custody of the child to him. At the same time, the court told the grandmother that “if he (the father) wants to leave the child at your home and pay for it, that will be all right.”

Nine days later, towit, on April 12, 1961, the mother (then represented by counsel appearing here) filed “Motion to Amend and Modify Judgment as to Custody and, in the Alternative, Motion for New Trial as to Custody.” The only factual allegation in paragraph 1 of the motion to amend and modify was that the mother "has remarried and can provide a proper home for said child,” to which were coupled conclu-sionary statements that “it would be to the best interests of said child to be in (the mother’s) care and custody” and that “there is additional evidence . . . which would show that (the mother) would be the proper person to have custody of said child.” Paragraph 3 of the motion contained no more than the curiosity-pricking hint that “much” of the evidence “is new and (has) occurred since the date of hearing on this matter.” Sandwiched between the foregoing were the allegations of paragraph 2 that the mother “was taken by surprise by the ruling of the court as to custody in that she was informed and did believe that an agreement had been reached between her and the plaintiff (the father) and their respective counsel” that all of them “would recommend to the court that said child be placed in custody of defendant (the mother),” and “that defendant was present and willing to testify and refrained from testifying because of the fact that it was her understanding that such testimony was not necessary in order for her to secure the custody of her seven-year old daughter.” With respect to the last-quoted allegation, counsel who drafted the motion obviously were misinformed for, as we have noted, the mother did testify. See the brief digest, supra, of her testimony. The alternative motion for new trial incorporated by reference all three paragraphs of the motion to amend and modify and added general statements “that there was insufficient evidence to support the judgment and decree as to custody,” that “the evidence showed that this defendant (the mother) was the proper person to have the care and custody” of the child, and that “there was no evidence showing that defendant was an unfit mother or that she was unable to properly care for, support, raise and train said child.”

The transcript before us contains the reporter’s recital (but no order or docket entry so showing) that the mother’s motion for new trial as to custody was sustained on May 23, 1961. In any event, additional evidence on this issue was taken at that time. The mother again testified, reiterating in substance much of her testimony at the initial hearing on February 27 and adding supplemental detail. She made a somewhat broader claim that she had supported the child from the separation of the parents in May 1959 to the initial hearing in February 1961, explained that the child had not been with her in St. Louis while she was there from May 1959 to September 1960 because “my mother (the maternal grandmother) preferred that I not take her” and (when pressed by her counsel for “some other reason”) because “I didn’t have enough money to take her (the child) with me,” and said that during the period of her residence in St. Louis “I came home once or twice a month.” But, she still did not say why, when she left her husband, she had chosen residence in St. Louis and separation from the child rather than residence in the county seat (her home before and between her marriages) or in the nearby city which would have permitted her to be with the child outside working hours; and she divulged no information concerning her activities in St. Louis or (if it be inferable that she had worked there, although there was no testimony to that effect) concerning the nature of her employment. The mother’s testimony disclosed that, during the period from the initial hearing on February 27 to entry of the decree on April 3, 1961, she had lived in the home of her mother (the maternal grandmother) “part of the time” and had lived in the nearby city “part of the time”; but, why she chose residence in the nearby city and separation from the child “part of the time” remained another wholly-unanswered question.

On April 5, 1961, two days after entry of the decree in this case, the mother married one J-. When asked on cross-examination whether she had known J-“for quite some time,” the mother first offered the unresponsive, uninformative answer that “we are married” but subsequently conceded that “I’ve known him six or seven months.” The total extent of the evidence pertaining to the mother’s situation after entry of the decree on April 3, 1961, was her testimony that she and J-live in a1 four-bedroom house in the nearby city and that there are no children in the home “at this time.” There was no showing that she had terminated her employment or that her hours of work had changed. Invited by her attorney to state whether she had given the child religious training, the mother glibly answered, “yes, I have”; but, when asked to explain, her more revealing answer was that “she (the child) goes to church at ... I haven’t gone with her for quite some time now, but she went with my mother (the maternal grandmother).”

At the hearing on May 23, 1961, the maternal grandmother testified again, this time upon call by the mother’s counsel. Reiterating her love and ability to care for the child and the fact that “she (the child) has been with me all of her life, you might say ■ — -I have raised her,” the gist of the grandmother’s testimony was that, shortly after entry of the decree on April 3, 1961, she had made “ a verbal agreement” with the father to care for the child in her home for $15 per week, that the father had come to the home of the maternal grandmother once each week to give her a check and to visit with the child, and that he also had visited with the child one Sunday evening.

The only other witness produced by the mother was an uncle, identified as a minister and a juvenile officer, who said that the mother’s reputation for “truth, morality and veracity” was good and that he knew of nothing which would render her unfit to have the custody of her minor child. Neither of the examining attorneys probed the knowledge of this witness concerning her union with J-two days after her divorce or invited this clergyman to essay an exposition as to how the hasty remarriage of his niece comported with the known moral tenets and teachings of the faith he professed and proclaimed.

In his testimony on May 23, 1961, the father confirmed his verbal agreement with the maternal grandmother to care for the child in her home for $15 per week, but he corroborated his attorney’s statement (in a question) that this agreement was that “she would take care of (the child) until school was out/’ Conceding that he had not taken the child with him since he had been awarded custody on April 3, he explained that “I have asked for her several times and (the maternal grandmother) did not want me to take her (the child).” The father (not remarried) still lived with his parents in their farm home. Repeating (without objection) the opinion previously expressed that he could care for the child properly, he said that his parents (who, however, did not appear as witnesses) would not object to the child being in their home with him. Since the paternal grandfather had “a heart condition” (not further explored in the record) and the paternal grandmother had arthritis, although “she isn’t crippled up with it,” the father pointed out that his brother and sister-in-law with their two children, a boy 11 and a girl 8, lived directly across the road from the farm home of the paternal grandparents. And this sister-in-law, 32 years of age, followed the father on the witness stand and affirmed her willingness and desire to assist him in rearing the child.

Having held the case under advisement overnight, the trial court on May 24, 1961, entered a second judgment as to custody, finding that “the best interest of the child . would be served by leaving her in the custody of her natural father” and awarding custody to him subject to the mother’s “right of reasonable visitation.” We observe parenthetically that the basic issue, towit, what would be best for the child, has been presented to us in a procedural hurrah’s nest, thrown together in the course of the mother’s brash and unprecedented legal maneuver to procure a reversal of the original decree as to custody by showing changed conditions (i. e., her hasty remarriage two days later) upon a reopening of or a rehearing in the original action rather than in a hearing upon a conventional motion to modify which is treated as a petition in an independent proceeding in which new rights based upon new facts are adjudicated. Hayes v. Hayes, 363 Mo. 583, 589-590, 252 S.W.2d 323, 327-328. But, with no procedural point raised by counsel and with the mother in good faith attempting to appeal from the final decree as to custody [Walker v. Thompson, Mo., 338 S.W.2d 114, 116(4)], we purposely pass procedural problems and proceed directly to the basic issue, acutely aware of the finite limitations imposed by human frailty and fallibility upon courts, counsel and parties alike, and profoundly impressed with the heavy responsibility and grave solemnity attendant upon discharge of our duty bearing upon the sacred relationship between parent and child, involving the future course of an innocent girl, and perhaps influencing the eternal destiny of an immortal soul.

To support their conclusions in custody cases, courts and counsel alike are fond of seizing upon and reiterating commonplace truisms which, from time to time, have found application in certain circumstances. When simply recorded without examination of the factual situations invoking their use, some of those principles may not, at first blush, appear to be entirely consistent with each other. For example, some cases caution that the success of one parent is not the controlling factor in determining whether that parent should be given custody of mi-, nor children [McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, 591(3); Bedal v. Bedal, Mo.App., 2 S.W.2d 180, 184(7); Zerega v. Zerega, Mo.App., 200 S.W. 700], while others tell us that ordinarily the custody of. children is awarded to the party who prevails in the divorce suit. Harwell v. Harwell, Mo.App., 355 S.W.2d 137, 142; Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776(6); Wells v. Wells, Mo.App., 117 S.W.2d 700, 704. And it has been said many times that, all other things being equal, the custody of children of tender years, particularly girls, will be granted to the mother [Edwards v. Edwards, Mo.App., 302 S.W.2d 37, 39(2) ; S- v. G-, Mo.App., 298 S.W.2d 67, 78(19); Ballew v. Ballew, Mo.App., 288 S.W.2d 24, 26(4); Long v. Long, Mo. App., 280 S.W.2d 690, 694(5)] while it has been pointed out no less frequently that,. where the best interests of children will be served thereby, their custody will be awarded to the father. Harwell v. Harwell,, supra, 355 S.W.2d loc. cit. 143; Davis v. Davis, Mo.App., 354 S.W.2d 526, 528(3) Tootle v. Tootle, Mo.App., 329 S.W.2d 218,. 224; L- v. N-, Mo.App., 326 S.W.2d 751, 755(6), and cases collected in footnote 8. On the one hand, we read that, unless both parents are unfit, legal custody of their children must be granted to one or the other [Paxton v. Paxton, Mo.App., 319 S.W.2d 280, 289], while, on the other hand, we find that, where the welfare of the children so demands, the legal rights of the parents must give way and custody will be vested in others. LeClaire v. LeClaire, Mo.App., 352 S.W.2d 379, 381(1).

But, all of these principles, useful as they may be under certain circumstances, are hedged and qualified, clearly to be employed only when their application would be consonant with and in furtherance of the only rigid, inflexible and unyielding principle in custody cases, namely, that the welfare of the children in each instance is the paramount and supreme consideration to which all others must submit and give way. See cases collected in West’s Missouri Digest, Vol. 11, Divorce, 298(1). So, although we again refer to the recited principles, we here recognize, as we have in other such cases [e. g., Davis v. Davis, supra, 354 S.W.2d loc. cit. 528], that courts must resolve pressing problems of custody not by applying academic rules or by mouthing pious platitudes but rather by determining, insofar as is humanly possible, what will best serve and promote the welfare of the children involved.

In this category of cases, the court frequently is confronted with the necessity of making an exceedingly difficult choice, not between black and white but between different shades of gray [E- v. G-, Mo.App., 317 S.W.2d 462, 468]; and, so it is in the case at bar. We cannot say with certainty that the best interests of the child will be served by leaving legal custody in the father. For, it is not reassuring to note that during I960 the father called on the child at the home of the maternal grandmother only twice, towit, at Easter and at Christmas; that, although the father ventured an uncertain opinion that he had contributed “about $30 per month” for the child’s support, the maternal grandmother said that he had paid her only the aggregate sum of $100 during 1959 (after separation of the parents on May 10 of that year) and only the aggregate sum of $85 during 1960; that, although stoutly denying “a drinking problem,” the father frankly admitted that “I have enjoyed drinking beer”; that about three years previously he had hit two parked automobiles and had been convicted of careless and reckless driving; and that neither of the paternal grandparents testified at any of the three hearings. But, his fitness as a parent was to be determined as of the dates of the hearings [In re S-, Mo.App., 306 S.W.2d 638, 641(2); Ex parte DeCastro, 238 Mo. App. 1011, 190 S.W.2d 949, 959(14)] ; and, with the father on the witness stand before him, the trial judge was in far better position than we are to appraise the father’s candor, sincerity, character, and love for the child.

On the other hand, the record casts, we think, even deeper shadows on the mother and keeps her newly-acquired husband completely in the dark. Without further factual resifting and review, suffice it to say that, as in Davis v. Davis, supra, 354 S. W.2d loc. cit. 531, the evidence leaves us with a disappointed, disheartened, distasteful feeling that this mother’s love for her child, as manifested objectively by her conduct during the period from the parents’ separation in May 1959 to entry of the decree on April 3, 1961, was not of that sublime character which inspired one of our brethren (now departed) to exclaim that “(t)here is but a twilight zone between a mother’s love and the atmosphere of heaven.” Tuter v. Tuter, Mo.App., 120 S. W.2d 203, 205. Even more importantly, the morals of the mother and J-, the head of the household into which the mother seeks to take the child, are of interest and concern. M- v. M-, Mo.App., 313 S.W.2d 209, 212(1) ; Graves v. Wooden, Mo.App., 291 S.W.2d 665, 667(2); Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 74(4); Dansker v. Dansker, Mo.App., 279 S.W.2d 205, 210(7). When we refer to “morals,” we are not thinking solely of sexual conduct. L- v. N-, supra, 326 S. W.2d loc. cit. 755. “Moral law” is “(t)he law of conscience” [Black’s Law Dictionary, 4th Ed., p. 1160]- — ■“ ‘the eternal and indestructible sense of justice and of right written by God on the living tablets of the human heart and revealed in his Holy Word.’ ” Moore v. Strickling, 46 W.Va. 515, 33 S.E. 274, 277, 50 L.R.A. 279. “Morality is a generic term containing the sum total of all . . . moral traits, including honesty, fidelity, peacefulness, etc.,” sometimes “referred to as synonymous with character” [State v. Moorman, 133 Mont. 148, 321 P.2d 236, 240]; and the very nature of the overriding principle in cases of this character, i. e., that the welfare of the children is paramount and supreme, dictates and demands that an inquiry into the “morals” of parents (and, we think, of stepparents as well) should encompass not only sexual conduct but also “common decency, cleanliness of mind and body, honesty, truthfulness, and proper respect for established ideals and institutions, among other things.” State v. Clein, Fla., 93 So.2d 876, 881.

No doubt, there are those so credulous and naive as to believe that the mother’s romance with J- might have budded and blossomed into marital fruition figuratively overnight- — literally over two nights —and so carnal and sophisticated as to think no immoral inferences permissible from the amorous association of those still bound to others by solemn marital vows. But, were we to be numbered among that group we would be more simple and stupid than counsel and their clients have the right to suspect and more unregenerate and unworthy of our trust than they have the right to expect. Bluntly put hut charitably stated, we are firmly of the opinion that, in the mother’s remarriage with J- the second day after her divorce, there are implications of “moral dereliction and lack of spiritual values” [Harwell v. Harwell, supra, 355 S.W.2d loc. cit. 143]; and that opinion is not softened by the state of the record before us, with J-not appearing as a witness and with the transcript utterly devoid of explanation or information concerning the circumstances under which the mother’s romance with J-budded and blossomed, his marital status when he and the mother became enamored of each other, and (if he had been married previously) the date and cause of termination of that marriage. Furthermore, we note (as the trial •court undoubtedly did) the absence of evidence bearing upon the attitude of J-toward his own child or children (if any), the provisions made for their care and support, and his feeling about the mother's desire to bring her child into his home as to which we do not have even vicarious assurance by the mother that the child would be tolerated, much less wanted, by J-.

It has been declared repeatedly that, although not binding upon the appellate court, the findings of the trial court as to custody of minor children nevertheless .are not to be lightly regarded and easily disturbed, but that the appellate court should defer to such findings unless it is firmly convinced that the welfare of the children requires some other disposition. Davis v. Davis, supra, 354 S.W.2d loc. cit. 532(7); Tootle v. Tootle, supra, 329 S.W.2d loe. cit. 224(9); Ragan v. Ragan, Mo.App., 315 S. W.2d 142, 147(3), and cases collected in footnote 3. We believe that principle of ■ deference applicable in the case at bar, where the trial court kept the matter of custody under advisement for several months, conducted three hearings, and had full opportunity to observe and appraise the parties and their witnesses, and where -■painstaking and agonizing consideration of the transcript leaves us unable to say that the welfare of the child would be better served by some disposition other than that decreed nisi.

We are mindful that the father, to whom legal custody of the child has been granted, must have the assistance of dedicated and devoted grandparents, either paternal or maternal, in the discharge of his parental duties and obligations. But, there is nothing strange or novel about that either to the courts [e. g., Sartin v. Sartin, Mo.App., 349 S.W.2d 705, 711-712] or to the mother in this case, who herself has chosen over the years to shift onto the maternal grandmother heavy responsibility for care of the child. Of course, the trial court retains continuing jurisdiction to modify the custodial provisions of the decree upon sufficiently compelling proof of changed conditions prior to majority of the child or the death of one parent, whichever first occurs. In re Wakefield, Mo.App., 274 S.W.2d 345, 347(5); Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 125(1).

The custodial decree under review is affirmed.

RUARK, P. J., concurs in separate opinion.

McDOWELL, J., concurs.

RUARK, Presiding Judge.

I concur. The trial judge was in a better position to assess the situation than we are. But I do not wish to be bound by concurrence in the statements from which it is to be taken that the mother, in her hasty remarriage, was necessarily guilty of immoral conduct therein or beforehand, either personally or legally. The parties had been separated for a year and a half. There could be circumstances, such as, for instance, where a mother, driven to desperation over fear of losing her child because she had no home to offer it, would contract a hasty marriage with an old acquaintance. No witness testified to, and no evidence necessarily points to, the immorality or misconduct of the mother. I think we should not assume it.


author: CROSS, Judge.

text:
    Germaine MARTIN, Respondent, v. J. L. GILMORE, d/b/a Acme Manufacturing Company, Appellant.
    No. 23545.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      John J. Alder, Wiley W. Morrison, Herman N. Swafford, William B. Miller, Robert E. Davidson, Alder & Morrison, Kansas City, for appellant.
    Hale Houts and J. D. James, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for respondent.
   CROSS, Judge.

In this action plaintiff sues to recover damages for personal injuries received when she fell on a snow and ice covered public sidewalk in front of defendant’s premises. Defendant appeals from a judgment entered upon a jury verdict awarding plaintiff damages in the amount of $7500.-00.

Plaintiff’s case is based on allegations in her petition to the effect that defendant had maintained a private driveway across the public sidewalk abutting its premises for its own private convenience and use; that the driveway was constructed and maintained by defendant in such a way as to .alter the grade of the sidewalk and render .a portion of it extremely steep, deceptive and dangerous at the point where it was joined by the driveway; that the described steep, uneven and roughened part of the ■sidewalk became extremely hazardous to pedestrians in damp and freezing weather when it became covered with ice and snow; •that defendant knew of the unsafe condition of the sidewalk in time to correct it, but, notwithstanding, negligently and carelessly maintained that condition and was ■so maintaining it when plaintiff fell -thereat; and, that plaintiff was caused to ■fall and receive injuries as a direct result of defendant’s negligence in maintaining the alleged dangerous condition of the sidewalk. Answering the petition, defendant generally denies its allegations and asserts the defense of contributory negligence on the part of plaintiff.

Defendant first contends that the trial court erred in refusing to direct a verdict in his favor because (1) plaintiff failed to prove any negligence against him, and (2) plaintiff is guilty of contributory negligence as a matter of law. In ruling the assignment, we shall consider the evidence from the viewpoint most favorable to plaintiff. Defendant concedes that “the record must be reviewed and weighed by resolving all arguments and inferences in favor of plaintiff to sustain the judgment of the lower court”.

Plaintiff, Mrs. Germaine Martin, age 42, is an employee of City Mattress Company, 1410 Agnes Street, Kansas City, Missouri. Defendant, J. L. Gilmore, owns and operates the Acme Manufacturing Company, located at 1406-08 Agnes Street, located next to and immediately west of City Mattress (both establishments being on the west side of Agnes Street). There was a public sidewalk on the west side of Agnes, across which Acme maintained a driveway for trucks entering and leaving its premises. At the point where the north edge of the driveway joined the sidewalk, the latter had been steepened or slanted to meet with the driveway, which had a lower elevation than did the sidewalk. The maximum slope shown by the evidence was 4}4 inches in two feet.

On the morning of January 27, 1959, at about 7:30 A.M., plaintiff was walking on the public sidewalk in front of Acme on her way to work at City Mattress, next door south. It was a cold, freezing morning. There was ice and snow generally, all over town. There had been snow the day before and ice had formed. There had been more snow the night before. According to plaintiff’s evidence, the snow and ice had not been cleaned off the sidewalk in front of Acme. The steepened part of the sidewalk adjoining the north edge of the driveway was covered with snow and ice and was slick. When plaintiff approached and stepped on the described sloping juncture of the sidewalk and driveway, she slipped on the snow and ice and fell forward, striking her right wrist, face and knees. She suffered a broken wrist and other injuries. The record does not disclose when or by whom the driveway was constructed across the sidewalk. It is shown, however, that defendant maintained the driveway and the sidewalk for approximately 30 years in essentially the same condition as described above. Defendant admitted he had occupied the Acme premises since 1930, first as a tenant, and for the last 10 years as owner. He stated that when he came in 1930 the sidewalk in front of the premises and the driveway that crosses the sidewalk were in the same condition of construction as at the time he was testifying. He had made no repairs on the driveway except to seal the cracks with a filler substance. During the entire period of his occupancy trucks had been operated to and from his building over the driveway.

Defendant’s insistence that plaintiff failed to prove any negligence on the part of defendant is based on argument that defendant had no duty to repair or maintain the public sidewalk abutting his property. It may be conceded, as a general rule, that a property owner owes no duty to the public to maintain an abutting sidewalk in a safe condition. The obligation to the public rests on the city, and not on the abutting property owner. That rule, however, is not absolute. It yields to the qualifying principle that an abutting property owner who makes a special use of the sidewalk is under a duty to exercise reasonable care to maintain that pcurt put to his special use in a reasonably safe condition for use by the public. Thus, the abutting owner or occupant will be liable where he uses the sidewalk for his own private benefit or convenience and fails to exercise reasonable care to prevent injury to persons lawfully using the way. 63 C.J.S. Municipal Corporations § 861; Moore v. Monarch Gasoline & Oil Co., 225 Mo.App. 115, 35 S.W.2d 669. Particularly referable to the facts in this case is the following statement quoted from C.J.S., above cited: “Where a sidewalk is used as a driveway for vehicles’ by an abutting owner or occupant, the special use carries with it the duty not to permit the use to create conditions unsafe for the passing thereon of pedestrians, or if it does create such conditions not to allow them to remain for an unreasonable time, such owner’s duty being to exercise reasonable care and diligence in the keeping of the driveway at the point where it was superimposed upon the sidewalk in a proper and safe condition for the passage of pedestrians rightfully using the sidewalk”. Missouri courts have consistently recognized and applied the foregoing concepts of duty imposed on a property owner who> makes special use of the public sidewalk.

In Perrigo v. City of St. Louis et al., 185 Mo. 274, 84 S.W. 30, the Supreme Court said that if the owner of property abutting the sidewalk is allowed an extraordinary use of the sidewalk, “the law imposes on him the exercise of reasonable care to guard the public from injury in such use”.

In Moore v. Monarch Gasoline & Oil Co., supra, plaintiff fell on a driveway defendant had constructed across the public sidewalk for its own use in operating a filling station. It was then snowing and there was some oil and grease on the driveway. In affirming a judgment for plaintiff this court held that plaintiff’s case was properly submitted to the jury. In the opinion we said:

“In this case the defendant tore out the public sidewalk, which presumably was constructed by or under authority of the municipality, and for its own convenience and in furtherance of its business constructed the driveway, and in doing so changed the slope of the sidewalk from a three-tenths of a foot slope from west to east to a nine-tenths of a foot slope. It is well-established law that when defendant tore out the old sidewalk and constructed the driveway for its use and benefit, the law imposed upon it the duty to construct a sidewalk that was reasonably safe for travel by pedestrians, and for its failure so to do it is liable to a pedestrian who, while in the exercise of ordinary care, is injured in consequence thereof”.

The case of Cuddy v. Shell Petroleum Corporation, Mo.App., 127 S.W.2d 24, also involves a driveway which had been constructed and maintained across the public sidewalk as a means of access to a filling station for the abutting owner’s convenience. As in the instant case, the driveway had been built across the sidewalk prior to defendant’s occupancy, and the liability of defendant was based on its negligent maintenance of a dangerous condition created by a predecessor. The petition charged that the driveway had been negligently constructed in that it was steep and dangerous to pedestrians when covered by wet, slippery or slick substances, and alleged that defendant negligently permitted the driveway to be and remain in said condition with knowledge that it was dangerous to persons walking thereon. It was shown by the evidence that plaintiff Cuddy slipped and fell on the sloping driveway when it was covered with ice and snow. The court ruled that plaintiff had made a submissible case. Also see State ex rel. Shell Petroleum v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; Sutton v. Fox Missouri Theatre Company et al., Mo.Sup., 336 S.W.2d 85; and Cool v. Rohrbach, Mo.App., 21 S.W.2d 919.

We have carefully considered the cases cited by defendant, but do not find in them any contradiction of the firmly established rule observed in this state, demonstrated above, that a property owner who makes a special use of an abutting sidewalk, for his own benefit and convenience, assumes the duty to exercise reasonable care to guard the public from injury in such use. None of those cases arose by reason of any special use put to the sidewalk by the property owner, involving its structural alteration. They are “ordinary” sidewalk cases, distinguishable as such from this case and the cases relied on by plaintiff, including the Cuddy case, where the court said, “In this case, however, we are not dealing with merely an ordinary public sidewalk. We have here a charge of negligence on the part of defendant as owner of the abutting property with respect to the construction and maintenance of a sloping driveway in the public sidewalk which was used by defendant for its own special, private purposes, the maintenance of which in that condition is alleged to have rendered the sidewalk unsafe”.

Defendant insists that he is not liable because he performed no affirmative act which created the “condition” of the sidewalk. This argument is effectively answered by the following statement quoted from the Cuddy case, supra: “In the case at bar, although Shell Petroleum Corporation did not originally construct the sloping driveway in the sidewalk, it did, for its own purposes, maintain the driveway in the sloping condition it was in when plaintiff fell thereon. We think, in view of the evidence, reasonable minds would differ on whether the driveway was maintained in a reasonably safe condition for the use of pedestrians using the public sidewalk through which the driveway was maintained, and the question was therefore one for the jury to determine”.

Defendant further urges the insufficiency of plaintiff’s evidence to make a submissible case on the ground that there was “inadequate evidence of dangerousness”. He argues, “Our courts have held that a simple slope in a sidewalk does not create evidence of dangerousness”, citing three cases: Morgan v. Kroger Grocery & Baking Co., 348 Mo. 542, 154 S.W.2d 44; Mullen v. Sensenbrenner Mercantile Co., Mo.Sup., 260 S.W. 982, 33 A.L.R. 176; and Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369. The Morgan and Paubel cases have no application to the question' raised, because their decision did not turn on the degree or amount of slope involved. In the Mullen case, the Supreme Court held that no case was made for the jury by evidence that plaintiff fell on a slick tile entrance with a slope of one inch per foot. In our opinion the Mullen case is not persuasive. It did not involve the use of a public sidewalk. Plaintiff was a business invitee on private premises. Significantly, the slope in the Mullen case was less than half the slope shown in the case before us.

There is substantial authority in Missouri decisions that a slope in a sidewalk of the degree shown in this case (4)4 inches in 24 inches) is sufficient to present a jury issue of negligence. We so rule. See Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562 (slope, 1½ inches in 8 inches); Vogrin v. Forum Cafeterias of America, Mo.Sup., 308 S.W.2d 617 (slope, 6%oo of an inch in 12 inches).

We conclude that plaintiff’s evidence was sufficient to present a jury question of whether plaintiff fell and was injured as a result of negligence on the part of defendant.

We next consider defendant’s complaint that plaintiff was guilty of contributory negligence as a matter of law. Additional facts pertinent to that question are as follows : For three and one-half years plaintiff had customarily traveled the same route to her work as she did on the morning she fell. On each occasion she walked along and over the same sidewalk and the Acme driveway. She was familiar with the place where the sidewalk sloped down to join with the driveway and knew it in detail, except that she had never observed specifically the steepening of the sidewalk at the place she fell and did not recall any specific occasion when she had stepped in the same place. She was aware that all of the sidewalk was covered with snow and ice and was slippery and that there was a condition of snow and ice all over town. Plaintiff was wearing rubber soled shoes, carried a handbag on her arm and was walking carefully. She was using the only, sidewalk available to her and the public generally.

Defendant bases this present contention solely on the proposition that plaintiff had full knowledge of the conditions affecting the safety of the sidewalk. We are unwilling to say that plaintiff is guilty of contributory negligence as a matter of law merely because she used the sidewalk when she knew that it sloped and was covered with snow and ice.

It is thoroughly settled law in this state that a pedestrian, knowing of a defect in a street not obviously dangerous, may use it, provided he exercises the care which a reasonably prudent person would exercise under the circumstances. Lueking v. City of Sedalia, 180 Mo.App. 203, 167 S.W. 1152; Stewart v. Sheidley, 223 Mo.App. 554, 16 S.W.2d 607; Wyckoff v. City of Cameron, Mo.App., 9 S.W.2d 872; Heberling v. City of Warrensburg, 204 Mo. 604, 103 S.W. 36.

In Lueking v. City of Sedalia, supra, this court quoted with approval the following statement from Heberling v. City of War-rensburg, supra; “If he (the pedestrian) knows of a defect, and it is not so obviously dangerous that no prudent person would attempt to use the street, he may still use the street, provided he exercises that care which a reasonably prudent person would in like circumstances, but he is not bound merely because he encounters a defect which a reasonably prudent man would .think he could pass by the exercise of care, to avoid the street entirely”.

In Stewart v. Sheidley, supra, this court also said: “In the present case we do not find evidence indicating contributory negligence by plaintiff as a matter of law. The street and sidewalk were in the heart of the city, and were in common use by the general public. They constituted the most direct highway from the post office to his regular mail-delivery route. We cannot say that knowledge of a mere defect in a city street not necessarily dangerous to one using proper care makes that street pariah, thenceforward to be shunned at whatever cost”.

In this case we cannot adjudge plaintiff Martin guilty of contributory negligence as a matter of law. The facts in evidence do not disclose a danger so obvious and imminent that no person in the exercise of due care for his own safety would have been willing to encounter it. Nor can it be said that, considering all the evidence touching plaintiff’s conduct at the time and place in issue, all reasonable minds would necessarily reach the conclusion that she was guilty of contributory negligence as a matter of law. Therefore, the question of plaintiff’s contributory negligence was one for the jury to decide.

We find no merit in defendant’s first assignment, and conclude that the trial court properly refused to direct a verdict in defendant’s favor.

Defendant next contends that the trial court erred by giving plaintiff’s verdict directing instruction No. 1, consisting of two paragraphs. The first paragraph of the instruction is an abstract statement of law to the effect (1) that the duty of a property owner, under the circumstances which have been shown by the evidence to exist in this case, is to exercise ordinary care to maintain the altered portion of the sidewalk in a reasonably safe condition, and (2) that a property owner who fails to observe such duty is negligent. We find no fault with these declarations. In our opinion the first paragraph is a correct statement of abstract law and contains no error.

The second paragraph of instruction No. 1 undertakes to hypothesize all the facts necessary for the jury to find in order to return a verdict for plaintiff. Essentially, the facts hypothesized are as follows: (1) that the driveway had been (constructed and) maintained so as to steepen the slope of the sidewalk; (2) that the sidewalk was covered with ice and snow; (3) that because of the steepened slope and the ice and snow the sidewalk was deceptive and dangerous; (4) that plaintiff fell and was injured as a result of the deceptive and dangerous condition; and (5) that plaintiff was exercising ordinary care for her safety.

Conspicuously absent from the necessary findings enumerated in the second paragraph is a finding to the effect that the deceptive and dangerous condition of the sidewalk was the result of defendant’s failure to exercise ordinary care. We think it cannot be disputed that the measure of defendant’s duty was to exercise ordinary care to maintain the abutting sidewalk in a reasonably safe condition. In Gershon v. Kansas City, Mo.App., 341 S.W.2d 374, this court recently considered the propriety of an instruction which told the jury that it was the duty of the defendant to keep the sidewalk in a reasonably safe condition. In the Gershon opinion we pointed out that the full measure of the duty of a city in maintaining streets and sidewalks is no more than to exercise ordinary care to keep them in a reasonably safe condition, citing Albritton v. Kansas City, 192 Mo.App. 574, 188 S.W. 239; Schaefer v. Kansas City, Mo.App., 270 S.W.2d 84. Therefore, we concluded, the instruction contained a positive misdirection as to the applicable law and was prejudicially erroneous, because it incorrectly enlarged the defendant’s duty.

In this case we are constrained to rule that the second paragraph of Instruction No. 1 is a positive misdirection of law because it permits the jury to return a verdict for plaintiff without finding that the defendant failed to exercise ordinary care (or was negligent). Therefore, we consider the instruction to be prejudicially erroneous. We do not believe that the correct statement of defendant’s duty in paragraph one has the effect of curing the misdirection of the second paragraph, which places an absolute duty on defendant to keep the sidewalk in a safe condition and, in effect, declares that defendant is an insurer of the public’s safety.

Defendant undertakes to defend the propriety of paragraph two by arguing that in effect it required a finding that plaintiff exercised ordinary care because it required the jury to find facts which constituted negligence as a matter of law. Therefore, plaintiff says, “it is not necessary to require the jury to find that the facts so found constitute negligence”. Authorities cited in support of this contention include cases in which the acts relied on for recovery were violations of statutes governing the operation of motor vehicles and amounted to negligence per se. We do not consider those cases relevant to the point involved. Plaintiff additionally cites Munden v. Kansas City, 225 Mo.App. 791, 38 S.W.2d 540; Hastey v. Kaime, 317 Mo. 1010, 297 S.W. 50; Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180; Moore v. Monarch Gasoline & Oil Co., 35 S.W.2d 669; Cuddy v. Shell Petroleum Corp., 127 S.W.2d 24; and Obert v. City of St. Louis, Mo.App., 148 S.W.2d 126. We proceed to analyze those cases.

In the Munden case, plaintiff’s automobile struck a hole in the street causing the steering gear to break. The hole was 2 to 3 feet long, 1½ feet wide and 8 or 9 inches deep. It is true, as defendant here points out, that the appellate court approved plaintiff’s verdict directing instruction in Munden, and said in its opinion: “The instruction required the jury to find the facts which go to make up the negligence charged in the petition, and the failure to use the word ‘negligence’ does not render it erroneous”. However, our reading of the instruction discloses that it required the jury to find “that the hole or depression * * * had existed in said street, for a length of time sufficient for * * * defendant to have known by the exercise of ordinary care of its existence * * * and had existed for a sufficient length of time after the time defendant knew or by the exercise of ordinary care should have known of its existence, * * •* for the * * * defendant by reasonable diligence to have repaired the same * * * We believe that those required findings, considered in connection with the hypothesis that the hole was actually in the street, are tantamount to requiring the jury to find that defendant failed to exercise ordinary care. Of course, such a finding amounts to a finding that defendant was negligent.

In Hastey, plaintiff fell through a coal hole in the sidewalk. Her verdict directing instruction required the jury to find “that the defendant the city of St. Louis, by the exercise of reasonable care, could have known of the defect, if you so find, and of its dangerous and unsafe condition, * * * (in time) to have remedied said condition;”. We believe that the effect of the foregoing language is to submit to the jury the issue of whether defendant exercised reasonable care to discover the defect in accordance with its lawful duty.

Of similar import is Hebenheimer — another coal hole case. In plaintiff’s main instruction the trial court told the jury their verdict should be against the city if they found (among other things) “that the city knew or by the exercise of ordinary care would have known of the existence of said loose, unsafe, dangerous, and insecure cover in time, by the exercise of ordinary diligence, to have made it safe and secure before plaintiff was injured,”.

In Obert a pedestrian fell at a place where an asphalt paving was buckled. Plaintiff’s instruction required a finding that defendant “negligently failed so to do, (discover and repair the defect) and that as a direct result of said negligent failure of the said defendant, if any, the ridge and break in said sidewalk caused the said sidewalk to be in an unsafe and dangerous condition for the plaintiff to use”.

We next consider the Moore case, urged by plaintiff as authority for its contention that a finding of the hypothesized facts in Instruction No. 1 constitutes a finding of negligence as a matter of law. The Moore opinion does not quote plaintiff’s verdict directing instruction or abstract its contents. That instruction, however, reposes in the files of this court. We have read it and find that it specifically submits to the jury the direct issue of defendant’s negligence, in the following words: “and if you further believe and find from the evidence that defendant, in constructing the driveway in the manner aforesaid * * * and in changing and altering the former construction of the sidewalk at said point in the manner aforesaid * * * was negligent;”.

We find nothing in the Cuddy case of benefit to plaintiff on the present question. That case was reversed by the St, Louis Court of Appeals because plaintiff’s verdict directing instruction erroneously failed to include the issue of contributory negligence which was asserted by defendants. The opinion contains no discussion of the instruction otherwise. The text of the instruction is not set out. We cannot assume that it permitted the jury to return a verdict for plaintiff without a finding that defendants were negligent or failed to exercise reasonable care.

There is no authority before us to sustain plaintiff’s plea that the acts hypothesized in Instruction No. 1 amount to negligence as a matter of law. By our independent research we have not found any case, even remotely analogous to this one, where the jury has been permitted to return a plaintiff’s verdict without a finding that the defendant breached his duty to exercise due care or was guilty of negligence.

Plaintiff’s argument that it was not necessary for the jury to find that defendant was negligent is contrary to fundamental law. As the Supreme Court said in Fortner v. St. Louis Public Service Co., Mo., 244 S.W.2d 10, quoting from Gratiot v. Missouri Pacific R. Co., 116 Mo. 450, 21 S.W. 1094, “Negligence is ordinarily a question for the jury. It is always so when the evidence on material points is conflicting, or where, the facts being undisputed, different minds might reasonably draw different conclusions from them”. The application of this rule is required in this case because there is sharp conflict in the evidence of the two parties on a vitally material point. It was plaintiff’s testimony that the sidewalk where she fell was covered with snow and ice. According to defendant’s evidence the snow and ice had been removed and the sidewalk was not slippery; one of his employees had removed the snow and ice from the sidewalk and salted it down prior to the time plaintiff walked over it. Furthermore, even on the basis of plaintiff’s testimony alone, we do not believe that all reasonable minds would necessarily conclude that plaintiff was guilty of negligence under the circumstances shown.

Defendant’s brief contains two additional assignments: (1) that the court erred in permitting plaintiff to introduce the life expectancy mortality table contained in the Missouri Statutes, and (2) that the verdict is excessive. Since a retrial of this case will be ordered, those questions will not be considered.

Because of the prejudicial error' in Instruction No. 1, the judgment is reversed and the cause remanded for a new trial.

All concur.


author: STANLEY, Commissioner.

text:
    Anne P. LINDSEY et al., Appellants, v. Robert G. LINDSEY, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Terry L. Hatchett, Glasgow, for appellants.
    Wilson & Nunn, Glasgow, B. M. Vincent, Brownsville, for appellee.
   STANLEY, Commissioner.

In adjudging the appellant, Anne P. Lindsey, a divorce from the appellee, Robert G. Lindsey, the court awarded her alimony of $500 and the furniture she had kept when they separated. Included in the costs adjudged payable by the husband was an attorney’s fee of $250. The plaintiff and her attorney have appealed and maintain that the allowances are too little.

The parties were married in September, 1953, when he was 22 and she was 19 years old. Both were working at the Mammoth Cave National Park. He was a graduate of Georgetown College and had obtained some kind of scholarship or assistance for further education, looking to a master’s degree. He left the college in Louisiana in about nine months without having accomplished his purpose. Soon afterward he entered the military service. The young couple had been materially helped by their parents, but during these earlier years they lived frugally and the wife worked quite continuously and in a large measure had contributed to the support of both her husband and herself. We need not describe the vicissitudes or struggles of the young couple. Finally they moved to Louisville and both obtained employment. She gave up her job in the latter part of 1959, returned to her parents’ home in Glasgow and brought the suit for divorce on the ground of cruel treatment and settled aversion. No children were born of the marriage.

The judgment of divorce obviously places greater, if not entire, culpability on the husband. The evidence sustains that aspect of the case. Our concern is the amount of alimony and the fee for the wife’s attorney allowed under the provisions of KRS 453.120.

At the time of the trial, early in 1960, the husband was 28 and his wife 25 years old. He had a managerial job with Sears Roebuck and Company and received a basic salary of $75 a week and a percentage of the gross sales of his department. He testified his gross pay for the year 1959 was a little more than $5,900. From that were deducted taxes, etc., of around $1,000. While the wife is young and experienced in mercantile or commercial work, that fact does not relieve the husband of all marital financial responsibility which he assumed. Maher v. Maher, 295 Ky. 263, 174 S.W.2d 289; Francisco v. Francisco, Ky., 331 S.W.2d 279.

The husband estimated the value of the furniture which his wife took with her as $2,400 or $2,500. Her statement is unde-nied that he had kept items of furniture received from his parents and she had taken that given to her by her parents or that which she had largely paid for out of her earnings at a cost of $1,000. She went into detail as to the items.

We need not reiterate the factors which the court considers in allowing alimony. Here we have a young man with take-home pay or net earnings of $400 or more a month and yet was adjudged to pay his former wife but little more than one month’s net income and then go scot-free of financial responsibility. The regular circuit judge had awarded her $25 a week as temporary alimony. We conclude without difficulty that $1,500 is a fair alimony, which the court should adjudge.

Mr. Hatchett, in representing the wife, had to deal with injunction and attachment proceedings as well as the taking of several depositions on different occasions. The schedule of minimum fees promulgated by the State Bar Association fixes $200 for a contested divorce case. But other minimum charges for special services are also listed. On the whole record we are of opinion that the attorney’s fee in this case should be $350 instead of $250.

The judgment is reversed with directions to enter another in accordance with this opinion.