author: HOUSER, Commissioner. PER CURIAM.

text:
    John BLADDICK and Marguerite Bladdick, Appellants, v. OZARK ORE COMPANY, a Delaware Corporation, Respondent.
    No. 50147.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 14, 1964.
    Arthur H. Slonim, Clayton, Sidney L. James, St. Louis, for appellants John Blad-dick and Marguerite Bladdick.

      Biggs,- Hensley, Curtis & Biggs, Davis Biggs, William C. Dale, Jr., St. Louis, Edgar & Edgar, William R. Edgar, Jr., Iron-ton, for respondent Ozark Ore Co., a Corporation.
   HOUSER, Commissioner.

This is a suit for $7,500 actual and $50,-000 punitive damages brought by John Blad-dick and wife against Ozark Ore Company for interfering with plaintiffs’ easement for the use of a roadway over defendant’s lands. -A trial jury returned a verdict for defendant. -Plaintiff has appealed.

In 1941 the Bladdicks bought the surface rights to a tract of 112.5 acres for $500. The nearest public road was about a mile from the property. Defendant’s lands surround the Bladdick property on three sides. An old 20-foot roadway running across defendant’s lands connected the Bladdick property with the public highway, hereinafter referred to as “the original connecting roadway.” John Bladdick knew that the original connecting roadway had been used by another farmer “in back of” Bladdick, apparently by acquiescence of defendant, and the Bladdicks began to use it for ingress and egress, without asking defendant for permission. No one told the Bladdicks that they could not come and go over the roadway. The Bladdicks improved their property, moved onto the farm in 1943, and continued to live there until 1956. In November, 1944 defendant’s attorney wrote John Bladdick a letter expressing defendant’s desire to acquire a 50-foot right of way for road purposes over Bladdicks’ 112.5 acre tract and enclosed a plat showing the exact location of the desired roadway. The attorney pointed out that Bladdick’s only access to his land was by traveling over defendant’s lands from the public highway. In return for the desired right of way over the Bladdick tract defendant proposed to .give Bladdick, his heirs and assigns, the right to use the 50 foot roadway over his own land, and in addition thereto “the right- to -use the present established road on [the ore company’s] lands from the public 'highway, near the old office building to the point where you -cross the railroad to come onto your land.” It was suggested that the execution of the following proposed agreement (omitting attestation clause and signatures) would be to the mutuál advantage of the' parties:'

“RIGHT OF WAY AGREEMENT

“WHEREAS, John Bladdick and Marguerite Bladdick, his wife, of Granite City, Illinois, are the owners of a certain tract of 112# acres of land lying in the Southwest quarter of Section 30 Township 35 North, Range 4 East, in St. Francois County, Missouri, lying ,on the West side-of the Missouri Pacific Railroad; and

“WHEREAS, Ozark Ore Company, a Delaware corporation,' owns lands adjoining the tract belonging to John Bladdick and wife, immediately West thereof, immediately North thereof and immediately East thereof; and

“WHEREAS, Ozark Ore Company is desirous of obtaining a right of way for road purposes across the lands of the said John Bladdick and wife; and

“WHEREAS, the said John Bladdick and wife are desirous of obtaining a right of way for road purposes across the lands of Ozark Ore Company, lying East of the lands belonging to the said John Bladdick and wife ;

“NOW, THEREFORE, for their mutual benefit, the parties hereto agree as follows:

“The said John Bladdick and Marguerite Bladdick, his wife, do by these presents Grant, Bargain and Sell, Convey and Confirm, unto Ozark Ore Company, its successors and assigns, the following described tract of land, namely: [here follows a metes and bounds description of a tract of land 721 feet long and 50 feet wide, containing 0.82 acres],

“The conveyance of the strip of- land last described is made for road purposes and it is understood as a part of the consideration for this conveyance that Ozark Ore Company, its successors and assigns, shall at all times, at their own expense, maintain and repair said road way.

“Ozark Ore Company, a corporation aforesaid, does by these presents Grant unto the said John Bladdick and Marguerite Bladdick, his wife, their heirs and assigns, the unrestricted right to use of said roadway and the right of ingress and egress over, across and upon other lands of Ozark Ore Company lying East of the lands belonging to the said John Bladdick and wife, to enable them, their heirs and assigns, to obtain access to the public highway at Iron Mountain, Missouri; it being understood and agreed that the said John Bladdick and wife, their heirs and assigns, shall restrict their use of said privilege to the established roadway across the lands of Ozark Ore Company connecting the roadway herein conveyed with the public highway at Iron Mountain, Missouri.”

The Bladdicks executed several copies of the foregoing agreement, as did defendant, and it was filed for record in the office of the recorder of deeds. At the time of the execution of the instrument John Blad-dick knew that defendant was conducting open pit mining operations on its lands within 200 yards of the connecting roadway, and that ore was being hauled out of the ground. These mining operations continued from 1944 to 1956. During that 13-year period the Bladdicks continued to use the original connecting roadway. In 1941 it was the only established roadway that crossed defendant’s lands and connected with Bladdick’s tract; the only means the Bladdicks had to get to and from the public highway. Defendant also used this roadway, to get to their pumps. In the fall of 1956 the Bladdicks moved away from the property, returning every other weekend until the spring of 1957 when the house located on the tract burned down. Thereafter from 1957 to 1959 they returned to the property only twice a year. Defendant maintained the original connecting roadway at its own expense. Bladdick was not asked to contribute to its upkeep and did not do so. Defendant made a slight change or jog in the original connecting roadway in 1954 and again in 1957. These minor deviations from the route were not objected to by Bladdick, since “they had it well fixed.”

In the fall of 1959 defendant desired to mine an ore body located under the original connecting roadway at a point about of a mile from the Bladdick tract. To do this mining it was necessary to destroy the road a length of about 400 feet and remove the rock, dirt and clay thereunder. Defendant’s superintendent was informed by its chief clerk of the existence of the right of way agreement. The superintendent knew that the Bladdicks owned the tract to which the original connecting roadway gave them access, and knew that they had been using this roadway. After reading the agreement the superintendent caused the original connecting roadway to be stripped away, resulting in a hole or crater 20 or 30 feet deep and approximately 100 yards square, thereby rendering permanently impassable that part of the original connecting roadway. This action was taken without any notice or warning to the Blad-dicks of intention to remove a portion of the road and to interrupt the use of the original connecting roadway at that point, or to relocate a segment of that roadway, and without gaining their permission or consent to make the change. Defendant’s superintendent did not consider it necessary to notify the Bladdicks of the intended change. The change has prevented the Bladdicks from using the segment of the original connecting roadway nearest the public highway. The portion of the original connecting roadway nearest the Blad-dick tract (the first three quarters of the road as one leaves the Bladdick property and proceeds toward the public highway) follows the same course and is the sanie road that existed there at the time the Blad-dicks bought their ' tract, but since the change a traveler leaving the highway, intending to use the original connecting roadway, is confronted with a locked gate.

Before the above described section of the original connecting roadway was destroyed defendant built a new segment of road from the point of the excavated area to the public highway, a distance of 1,000 feet or more, to be used in place of the segment destroyed by the mining operation. Defendant’s superintendent testified, “We re-established part of the road prior to the time of the removal of the old road.” The new segment terminated at a point entering the public highway several hundred feet distant from the point at which the original connecting roadway had emerged from defendant’s lands. From the Bladdick tract to the public highway the length of the original connecting roadway was 4800 feet. The route as relocated is 4600 feet in length. There was no time during which a connecting roadway could not be used either on its original or present course. When the new segment was completed for use defendant’s superintendent left instructions that the Bladdicks be directed and assisted in its use. No other notice of relocation was given to them. On their first trip to the property after the relocation the Bladdicks encountered a gate across the original connecting road, right at the public highway, bearing the sign “Private Property No Trespassing.” The gate was locked with a padlock and chain. On inquiry they were directed over the new portion of the roadway. It was raining. The Bladdick car slipped off the new road, got stuck at a point some 200 feet off the new segment of the roadway, and had to be pulled out by a truck. Thereafter the Bladdicks used the new segment two, three or four times but with difficulty, for the assigned reasons that it is not as straight or solid as formerly, and that John Bladdick has difficulty at one fork in the road which opens up three routes, for he cannot remember which of the three to take to get to his property. There is “nothing to go down there for” since the house burned. Bladdick testified that he had not sought permission to use the roadway along its new course; that defendant never said anything to him about needing permission to use the roadway. He testified that he had no right to go over it; “no business on their right of way.” He considered himself a trespasser, stating that the few times he used the new segment it was “the only thing [he] could do” but that he had “no right at all to go on the other man’s land.” The original connecting roadway was a hard surface, gravel-covered, with a pressed rock foundation, “pretty well kept up,” and “pretty well established.” Bladdick introduced evidence that the new segment was a rough road, with big gullies and deep ruts, and lacked a solid foundation, and indicated that the old and new roads were not the same; that the new segment was not as good a road as the old road; that it was not as straight, and had more curves; and “you got to go up a steep hill in order to get out and if it is wet and bad, or slippery in the winter, you will never make it.” According to defendant’s evidence, both the original and the new segment were about 20 feet wide, with pressed rock foundations, surfaced with gravel, and were essentially the same.

Appellants’ first point will be resolved by determining the -nature of the interest in defendant’s lands transferred to the Bladdicks by the right of way agreement. Were they granted a right of way easement over the particular route of the original connecting roadway and no other, or a right of ingress and egress over defendant’s lands generally for the purpose of access, limited to whatever roadway might be established by defendant and in use at the time of the exercise of the privilege and subject to alteration at any time at the election of the grantor, but not amounting to an easement or other interest in a particular roadway?

“All that is necessary to create an easement of the kind under consideration ‘is a clear manifestation of the intention of the person who is the source of title to subject one parcel of land to a restriction in its use for the benefit of another, * * * and sufficient language to make that restriction perpetual.’” Whitelaw v. Rodney, 212 Mo. 540, 111 S.W. 560, 562.

We have Concluded that the writing creáted in the Bladdicks ah easement for right of way purposes the exact nature of which is a privilege of user for roád purposes, restricted to the route and courste of the particular roadway across defendant’s lands as established on November 21, 1944. This follows from a general consideration of the right of way agreement as a whole; a particular consideration df its preliminary recital of the reasons which impelled the 'parties to enter into a contract (each to obtain “a right of way for foád purposes” from the other), the granting clause,- and- the restriction of the Bladdicks’ Use df the privilege “to- the established roadway across the lands of Ozark Ore Company connecting the roadway herein conveyed [and therefore Bldddick's’ farm] with the public highway * *

The words the parties used are certain and definite and’ clearly manifest an intention to convey the above described interest in real estate to grantees, their, heirs and assigns, and to perpetually bufden grantor’s lands therewith. Rosenbloom v. Grossman, Mo.Sup., 351 S.W.2d 735, 738, 739; Whitelaw v. Rodney, supra. Under the facts of this case we consider that the purpose of the granting claúse was to give the owners of the landlocked farm, their heirs and assigns, a right of ingress and egress over an existing, established private road with a definite course and route between the farm and the public highway. The roadway as to which the parties were contracting was identified hot only as an established roadway but also as the established roadway. There could be no. confusion as to which route was meant: the evidence clearly shows that there was only one road connecting the 112:5 acre farm and the public highway on November 21, 1944. The use of the words “the established roadway, [etc.]” was sufficient to-describe a particular route. In Boland v. Byrne, Mo.App., 145 S.W.2d 755, where there was a grant of the “right of ingress; and egress at all times over road as now traveled” it was considered that “the road now traveled” would “necessarily be a fixed monument.” So in this case, “the established roadway” was a fixed monument. It referred to the roadway as then located—the present, existing roadway already established and then in use. In Franck Bros. v. Rose, Mo.Sup., 301 S.W.2d 806, the following language was- used to-describe a roadway: “ * * * a roadway, 15 feet wide [through described land] where now located, connecting with Shepard County Road.” In considering the granting clause this Court said, l. c. 811: “The obvious purpose of the clause in question was to give to the owner of Lot 3 a right of ingress and egress, over an existing private road, from said Lot 3 to Shepard County Road.” Much less definite granting clauses than the instant one have been held to refer to a presently existing roadway. Thus, in Bolomey v. Houchins, Mo.App., 227 S.W.2d 752, the grantor-testator used this language: “the right of way through said tract of land.” In spite of the indefiniténess of this description the St. Louis Court of Appeals considered that he “[u]ndoubtedly * * * intended to refer to a roadway as already established and in' use at the time of the execution of his will, * * *.” 227 S.W.2d, l. c. 753. (Our emphasis.) In the instant case there is little or no room for uncertainty in the language used to locate the route of the roadway. The intention to refer to a specific route, i. e., the only roadway already established, and in use.at the time of the execution of the right of way agreement, is clear enough.

Defendant, however, seeks to differentiate between the language describing the rights the Bladdifcks were to have itl the roadway crossing their own land and in the roadway across defendant’s lands, contending that while the former grants an unrestricted easement right, the latter grants no easement but “only furnishes a fight of ingress and egress across defendant’s lands to the public highway.” Theré is no substantial difference between the grant of. the unrestricted right to use a strip of land described by metes and bounds “for a roadway,” and the right of ingress and egress over grantor’s lands for access purposes between a farm and a public highway where the use of the privilege is restricted to a certain established roadway located on grantor’s lands. The differing method of expression perhaps may be accounted for on the ground that the latter describes a way to and from a landlocked tract, but the net result of the two descriptions is the same. The uses and purposes are the same; the grantees in both instances enjoy unrestricted right of passage .over a given roadway. The intention to make the right perpetual is found in both instances by the use of the word “heirs.” Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 986, 987.

Defendant seizes upon the fact that in one instance there was a description by .metes and .bounds but not, in the other. We attach no special significance to this in determining the nature of the right granted. A reason for this difference may lie in the fact that the original connecting roadway was already established and needed no center line or other surveyor’s description, while the easement over the Blad-dicks’ land was new and could more conveniently be established and described in some formal manner, as by metes and bounds.

Defendant reads into the last clause of the right of way agreement, beginning with the words “it being understood,” a limitation on the privilege granted, contending that, these words. lessen the privilege and indicate an intention that no easement be intended. We disagree. The clause restricts the fights of ingress and egress over defendant’s lands to a particular roadway existing at the time of the execution of the easement, but does not limit the Bladdicks’ right to cross defendant’s lands to whatever route the defendant in the future may establish or whatever route may be in use in the future. In the.light of developments and in retrospect it would have been to defendant’s advantage fo provide for such flexibility in the routing, but the inescapable fact is that the instrument contains no such provision, either expressly or by necessary implication. If defendant had intended fo reserve the right to alter the route in the future in order to accom-modafe the needs and requirements of its mining operations We have no doubt that it would have written such a reservation into the agreement, in unambiguous language. We cannot rewrite the contract for the parties, but must take the language as we find it. If the language employed be regarded as ambigtidus it is to be construed against defendant, since defendant’s attorney dréw the instrument. Any lingering doubt that it was defendant’s intention to contract with reference to the original connecting roadway and not with reference to a flexible route is removed when we consider defendant’s attorney’s reference to the roadway, in his letter of transmittal to John Bladdick as “the present established road.”_ (Emphasis ourd.)

If the specific route had not been definitely located by the description in the , right of way agreement the situation nevertheless would have been saved for the Bladdicks, under the rule that where an easement in land is created in general terms without giving its definite location and description, á subsequent selection of the course over which the right is to be exercised may be inferred within the boundaries of the land over which the right is granted by proof of the use of a particular way on the part of the grantee or owner of the dominant estate along with the acquiescence of the grantor or Owner of the servient estate. Bolomey v. Houchins, supra, 227 S.W.2d, l. c. 755; 17A Am.Jur. Easements, § 102. For 13 years the parties construed the grant to mean the route of the original connecting roadway, by the Bladdicks’ continuous use of that specific route and defendant’s acquiescence therein.

Defendant maintains, however, that nothing in the writing prevents it from relocating portions of the roadway as long as there is no interference with the Blad-dicks’ use of the roadway as relocated and no interference with their ingress and egress. We do not agree. The writing gives the Bladdicks a right of way over “the established roadway,” not over “the roadway as now established or as may be hereafter established by defendant.” The Bladdicks had the right to use the entire route of the original connecting roadway without interference, obstruction or disruption of any part of it. Nothing in the right of way agreement reserved to defendant the right to change the route in the future as it might desire, to accommodate the needs and requirements of its mining operations. “As a general rule, in the absence of statutes to the contrary, the location of an easement cannot be changed by either party without the other’s consent, after it has been once established either by the express terms of the grant or by the acts of the parties, except under the authority of an express or implied grant or reservation to this effect.” 28 C.J.S. Easements § 84; 17A Am.Jur. Easements, §§ 103, 134. Defendant had no right to destroy a 400-foot section and permanently take out of use 1000 feet of the original connecting roadway, thereby depriving the grantees of easement rights reserved to them in writing, or to arbitrarily reroute the roadway to suit its own purposes, without first obtaining the consent of the grantees. Defendant’s conduct in so doing, with full knowledge of the rights of the grantees, and of their long continued use along the original route, violated plaintiffs’ rights. The fact that an alternate route was provided, while doubtless a strongly mitigating circumstance on the question of damages, is not sufficient to discharge the grantor from liability, even though the alternate route may have been equal to the original route in utility and quality. “ * * [A] definite location binds the grantor so that he has no right either to hinder the grantee in the exercise of his right or to compel him to accept another location, although the latter location may be equally convenient with the right or privilege originally granted.” 17A Am.Jur. Easements, § 103.

Plaintiffs’ case was made in all substantial particulars by defendant’s admissions, but defendant did not make a submissible defense. The circuit court erred in submitting this case to the jury on the question of liability and in entering judgment for defendant upon return of the jury’s verdict. On the same pleadings and evidence on a new trial the court on motion of the plaintiffs should direct a verdict for plaintiffs on the issue of liability.

These considerations require a reversal of the judgment and make it a useless exercise to analyze in detail Instructions Nos. 4 and 5, given at the request of defendant. Obviously it was error to give these instructions in view of the conclusions we have reached on the issue of liability.

Judgment is reversed and the cause is remanded for a new trial.

WELBORN, C., concurs.

PER CURIAM.

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

All of the Judges concur.

ON MOTION FOR REHEARING OR TO TRANSFER TO COURT EN BANC

PER CURIAM.

This opinion does not conflict with Bunch v. Wheeler, 210 Mo. 622, 109 S.W. 654, as charged. In Bunch a provision in a deed of conveyance reserved “the right of pass-way near the original road through said land for a passway.” The original road ran through a strip of land varying in width from 100 to 300 feet. At first plaintiff, owner of the right reserved, used the original road. Later the new owner of the land closed that passway and allowed plaintiff to use another route. Plaintiff thereupon traveled through the strip “just anywhere.” A subsequent purchaser refused to permit plaintiff to use the land as a passway. Plaintiff had his surveyor make a metes and bounds survey of a road 20 feet wide on what was pointed out to the surveyor as “the original road,” and brought suit for a mandatory injunction. The circuit court construed the reservation as the grant of a right of way over the specific strip of land 20 feet wide and 21.76 chains in length. On appeal this court held the reservation not susceptible to the construction that the specific twenty feet, particularly described, was reserved from the grant; construed the reservation as a grant of a right to pass over the land along a route near to the then well-known and long existing road; held that the grant was not void for uncertainty and that the grant was sufficiently definite; that the right of way or right to pass over the land was to be near the original road which was a fixed monument or well-defined course. The decree was reversed and the circuit court was directed to require the owner of the servient estate to erect a gate at each terminus of the right of way and to indicate to plaintiff the location of the passway near the line of the old road. The two cases differ in important particulars. The reservation in Bunch was general. The reservation in Bladdick is particular and specific (a right of ingress and egress and user restricted to a designated, existing, established roadway). Plaintiff in Bunch acquiesced in the closing of the road which plaintiff first used as a passway. There was no such acquiescence in Bladdick. The user in Bunch, following the closing of the original road, was not confined to a particular route; plaintiff traveled “just anywhere” through the strip. There was no such general user in Bladdick; Bladdicks’ use was confined to the well-defined course of the established roadway. The parties in Bunch did not construe the reservation as a grant of a particular route, whereas the parties in Bladdick for 13 years construed the grant to mean the route of the original connecting roadway. The two cases are to be distinguished on their differing factual situations and are not in direct conflict, as claimed.

Respondent makes the further charge that the Circuit Court of the City of St. Louis, to which the cause is remanded, will not have jurisdiction to hear the cause by reason of § 508.030, V.A.M.S., which provides that suits whereby the title to real estate may be affected shall be brought in the county where such real estate is situated. The real estate lies in St Francois County. The question which ordinarily arises in cases where jurisdiction is thus questioned is whether the judgment will directly affect or operate directly upon the title to real estate so as to involve title, or whether the suit is one primarily involving personal jurisdiction and only collaterally affecting the title to real estate. This was pointed out in Sisk v. Molinaro, Mo.Sup., 376 S.W.2d 175, a specific performance case involving a contract for the purchase of land in Cass County. Following many previous decisions in cases of specific performance Sisk held that title to real estate was involved and that the Circuit Court of Jackson County lacked jurisdiction. In an effort to provide a rule of action for future guidance the writer of the opinion listed several illustrative types of suits (376 S.W.2d, l. c. 180) having for their primary purpose and object a judgment directly affecting the title to real estate, including suits “to impose easements on realty.” The opinion recognized that in a personal action the pleadings and issues may be so developed as to properly require the entry of a judgment collaterally affecting real estate in another county in order to determine and adjudicate fully the rights of the parties. Turning to the instant petition, it is clear that its primary object and purpose is not to obtain a judgment, directly affecting the title to real estate, or to “impose” an easement on realty. Nor will judgment take, title put of one party, and Nestr it in. another, The judgment, whichever party prevails will have no effect on the title, to the ore company’s property. This is pot a proceeding in the nature of a proceeding in rem affecting land, The real estate is not the principal matter in issue. The object of thjs petition, is fo recover actual,and,punitive damages for an alleged wrongful, unlawful and malicious destruction, removal and, extinguishment of a roadway over which plaintiff claims a right of way, by the acts, of defendant in nipping, tearing, gouging, scqopinp; arid undercutting the roadway so as.to. completely and permanently demolish, and eliminate the roadway for a distance of several hundred feet. It is a personal action, for damages asking,for nq relief other, than an ordinary money judgment. The issue is whether respondent had the right to destroy the original connecting, roadway and thus to totally and permanently extinguish access to appellants’ property by means of a roadway over which appellants claim a right of way, and if not, the extent to which appellants have sustained damages .in terms of money. As in the case of a suit for trespass, the primary object is to recover damages not to try title to real estate. The question of title is merely incidental to the main controversy. While appellants must show their right of way over the demolished roadway in order to obtain judgment their proof of title. “is collateral, and a mere incident of the. real issue,” which is their right to damages. As in Hannibal & St. Joseph Railroad Company v. Mahoney, 42 Mo. 467, a suit to recover treble damages for trespass in cutting and carrying away timber from plaintiff’s lands, “If the plaintiff shows title’ sufficient to enable him to maintain his cause of action, the judgment does not operate on the real estate or affect the title thereto. The prqof of title only amounts to a link in the chain, among others, of the evidence by which he supports his issue and recovers a general judgment for the wrong done him by the defendant. To come within the purview of the statute, it must be a case not merely where the title is drawn in question, but where the title is to be affected,” 42 Mo., l. c. 472. Section 508,030, supra, “applies only, to cases in which title to land is the subject of the controversy, and in which the judgment will operate directly upon the title, and not to those cases where the title to land may be merely a subject of collateral inquiry, or in which th,e judgment will only affect the title incidentally-or collaterally.” State ex rel. South Missouri Pine Lumber Co. v. Dearing, 180 Mo. 53, 79 S.W. 454 and cases cited l. c. 457; Hewitt v. Price, 204 Mo. 31, 102 S.W. 647. Accordingly, the Circuit Court of the City of St. Louis has jurisdiction to try this cause on remand.

The motion for rehearing -or to transfer •to' the court en banc is overruled.

      . Note the use of the definite article, “the” Websters New International Dictionary, Second Edition. Unabridged, p. 2617.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Estelle PHILLIPS, Appellant, v. William SHAW, Respondent.
    No. 50264.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.

      Bernard Susman, St. Louis, for appellant.
    Burton H. Shostak, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   PRITCHARD, Commissioner.

Plaintiff sued defendant for $25,000.00 damages for personal injuries to her legs which she claimed were caused by an object propelled by a rotary power lawn mower alleged to be owned and under the control of defendant. The case was submitted to the jury upon the doctrine of res ipsa loqui-tur. The trial resulted in a judgment upon a verdict for defendant. Plaintiff appealed from the judgment after her motions for new trial were overruled by the trial court.

For the purposes of passing upon the points raised by plaintiff on this appeal we shall assume that she made a submissible case. Defendant offered no evidence in the trial but stood upon his motions for directed verdict made at the close of plaintiff’s case and again at the close of the whole case.

Plaintiff’s first point is that the refusal of the trial court to grant her a new trial on the ground that the verdict of the jury was so much against the evidence and the weight thereof amounts to an abuse of discretion. Such point is without merit and is overruled. See the leading case of Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, where the verdict of the jury was in defendant’s favor, as here. The court said, loc. cit. 560[5], “The law is too well settled to need citation of authority that it was within the exclusive province of the trial court to determine whether or not this verdict was against the weight of the evidence. One of the grounds set up in plaintiff’s motion for new trial was that the verdict was against the weight of the evidence. The trial court determined that question when it overruled the motion and refused to grant plaintiff a new trial. We are powerless to interfere with that ruling because we have no authority to pass upon the weight of the evidence.” See also White v. Rohrer, Mo., 267 S.W.2d 31, 34[1, 2]; Scott v. Gray, Mo., 337 S.W.2d 38, 41[2, 3], and Bowe v. Kehr, Mo., 345 S.W.2d 224, 225[1].

By Point 2 plaintiff complains for several reasons of the giving of Instruction No. 4 on behalf of defendant. That instruction reads:

“The Court instructs the jury that in deliberating upon the case, it is your duty to decide first whether or not, under all the facts and circumstances in evidence, under the instructions of the Court, plaintiff is entitled to recover against defendant. Until this question has been determined by you, you have no right to consider the amount, if any, of plaintiff’s damages.
“Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and to decide it impartially, according to the evidence and the instructions of the Court.
"Neither are you permitted to base a verdict entirely and exclusively on mere guesswork, and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendant, William Shaw, was negligent without resorting to guesswork outside of and beyond the scope of the evidence, and the reasonable inferences deducible therefrom, then it is your duty to and you must return a verdict for defendant.”

Plaintiff says that in the first paragraph of Instruction No. 4, the sentence “Until this question has been determined by you, you have no right to consider the amount, if any, of plaintiff’s damages” in effect removes from the jury’s consideration in this res ipsa loquitur case the nature and extent of injury. The jury would of course be entitled to consider plaintiff’s injury in the determination of the issue of negligence. We do not, however, construe the clause as limiting or removing that factor. See West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308, 310[1], where a similar contention was made, and the court said that a like instruction as here must be read together with the damage instruction (as here), and “When they are, we do not believe that a jury of ordinarily intelligent laymen, who should be credited with common sense and reasonable discernment, would understand ‘amount of damages’ to mean ‘nature, character or extent of injuries.’ ” The instruction does not remove from the consideration of the jury the facts and circumstances submitted in plaintiff’s verdict directing Instruction No. 1. It does not limit the permissible inferences to be drawn therefrom concerning causation and negligence or require a showing of the specific manner of the operation of the lawn mower under plaintiff’s charge of general negligence.

Plaintiff also contends that the words in the last paragraph of Instruction No. 4, “Neither are you permitted to base a verdict entirely and exclusively on mere guesswork” and “without resorting to guesswork,” are erroneous in that they are misleading, confusing and are not a proper statement of the law. She says that the words “entirely and exclusively” imply that the jury may use guesswork, but the words “without resorting to guesswork” imply that the jury may not use guesswork in arriving at a verdict. Although the use of these words in a circumstantial evidence case such as this has been held to be not recommended, Young v. Missouri Public Service Co., Mo., 374 S.W.2d 59, 65[6], it has also been held that such use would not amount to reversible error. See Grote v. Reed, Mo., 345 S.W.2d 96, 102[10]; and the West case, supra. Note also that words sometimes used in this type of instruction, “speculation” and “surmise,” are omitted. The giving or refusal of a cautionary instruction such as this is within the discretion of the trial court. The jury was not misled. Point 2 is overruled.

The final contentions of plaintiff contained in her Points 3 and 4 relate to the exclusion by the trial court of proffered testimony by her expert witnesses, John Bland, an engineer, and her physician, Dr. Jerome J. Gilden.

The excluded testimony, for which offers of proof were made, of Mr. Bland related (a) to his opinion that something thrown out by defendant’s lawn mower could have caused plaintiff’s injury; (b) to his opinion that if a part of the lawn mower had broken off it would have been propelled a distance of 30 feet; and (c) that at the time of his inspection of the lawn mower (in January 1963) he found numerous nicks on the lawn mower blade. The first two offers of proof were rejected on the ground that they invaded the province of the jury, and the third offer upon the ground that the witness did not know the condition of the lawn mower blade at the time of the injury, August 1, 1960, and the testimony of its condition in January, 1963, was too remote. Clearly, the testimony of the condition of the blade more than two years after the accident was too remote: the condition of the lawn mower at the time of the inspection thereof would have no relation to its condition at the time of the accident absent a showing that it was in the same condition at both times. The first two questions were for the jury, and Mr. Bland’s testimony would not aid it in its determination of the ultimate issue of negligence. Wood v. Ezell, Mo.App., 342 S.W.2d 503, 507, and cases cited. Besides, as above indicated, Mr. Bland did testify without objection that the lawn mower could have thrown an object the size of that found in plaintiff’s leg. From the facts in evidence the jury would have been just as able as the witness to draw the conclusion as to the cause of plaintiff’s injury. The same application may be made as to testimony sought to be elicited from plaintiff’s physician, Dr. Gilden, as to whether the operation of the lawn mower caused the injury which he found in plaintiff’s leg. The trial court having a sound discretion did not abuse the same in refusing the proffered testimony of these experts. Schroeck v. Terminal Railroad Ass’n of St. Louis, Mo., 305 S.W.2d 18, 24[5], 62 A.L.R.2d 1416; Eickmann v. St. Louis Public Service Company, 363 Mo. 651, 253 S.W.2d 122, 130[11], Points 3 and 4 are overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: WALTER H. BOHLING, Special Commissioner. PER CURIAM.

text:
    FRISCO EMPLOYES’ HOSPITAL ASSOCIATION, Appellant, v. STATE TAX COMMISSION OF MISSOURI et al., Respondents.
    No. 50509.
    Supreme Court of Missouri, Division No. 1.

    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept 14, 1964.
    George E. Bailey and George J. Pruneau, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson City, Thomas J. Neenan, City Counselor, Thomas F. McGuire, Associate City Counselor, Conway B. Briscoe, Jr., DeWitte T. Lawson, Jr., Assistant City Counselors, St. Louis, for respondents.
   WALTER H. BOHLING, Special Commissioner.

The Frisco Employes’ Hospital Association, plaintiff corporation (referred to as appellant or Association), owns and operates a 129-bed hospital in the City of St. Louis. The City Assessor placed this property on the assessment roll for ad valorem taxes as of January 1, 1963. This action was upheld upon successive reviews by the Board of Equalization of said City, the State Tax Commission, and the Circuit Court of the City of St. Louis, resulting in an assessment at $137,840.00. The Association has appealed. The City of St. Louis was permitted to intervene in the Circuit Court. The issue for determination is whether the Association’s hospital is “actually and regularly used exclusively * * * for purposes purely charitable” within Section 137.100(5) and Art. X, § 6, Mo.Const. V.A.M.S. (set forth more fully hereinafter), and consequently exempt from taxation. This case was submitted to the State Tax Commission upon an agreed statement of facts. We state the relevant facts.

The Association was organized in 1898 as a nonprofit corporation. See now Chapter 352. It purchased the site and erected the hospital. Its present name was adopted in 1911.

The management and control of the Association is vested in a Board of Trustees. At first the St. Louis & San Francisco Railroad Company, predecessor to the present St. Louis-San Francisco Railway Company (sometimes herein referred to as the Railroad), appointed the majority of the Board of Trustees. Ever since an amendment of the bylaws in 1940 the employe representatives have constituted a majority of the Board.

The Association provides medical and surgical services on an inpatient and outpatient basis to its members in the nine-state area in which the Railroad and its subsidiaries operate. This hospital is the only hospital owned by the Association. It is a duly licensed and accredited hospital.

A chief surgeon has the immediate supervision of the hospital. As permitted by the bylaws, he is also chief surgeon for the Railroad and receives one half of his salary from it. The hospital is well staffed.

In general, the facilities of the hospital are available only to members of the Association, which is limited to employes and retired employes of the Railroad, employes of the Association, and officers and employes of labor organizations representing the Railroad employes. Families of the Association’s members are not members of the Association; but the wives and dependent children of a member and persons other than members injured on the line of the Railroad may, if facilities are.available, receive treatment as pay patients. No pay patients have been admitted for many yea.rs on account of a shortage of facilities.

The Association’s funds are derived mainly from monthly dues paid by the membership. The current monthly dues of regular members are $9.00 and for “pensioners” $8.00. (“Pensioner,” as here used, does not mean an indigent person but refers to one who has had ten-years’ membership in the Association, who has retired from the Railroad’s active service, and who is also known as a “limited member.”) A breakdown of the membership into categories shows the following monthly payments: Operating crafts, 2,574 members, paid by employe through payroll deduction; nonoperating crafts, officers and specialists, 5,922 members, $7.58 paid by employer— $1.42 paid by employe through payroll deduction; hospital employes, 208 members, $6.80 paid by Association — $2.20 paid by employe through payroll deduction; furloughed employes, 50 members, and labor representatives, 17 members, $9.00 paid directly by member; pensioners, 1,834 members, $8.00 paid directly by pensioner. Under collective bargaining agreements, the Railroad pays the above $7.58. It has accorded 937 officers and specialists, not members of a union, the same benefit. It pays an additional 320 a month for nonoperating craft employes for extended hospitalization in the event of a furlough and, under an agreement with the Association, $5,500 a month for treatment of employes injured while on duty. The Association agreed to pay the above $6.80 for certain of its employes under a bargaining agreement and now pays the $6.80 for all of its employes whether or not covered by a labor contract.

We understand that during 1962 970 limited members (pensioners) received 14,981 patient-days’ service at the hospital; that the costs allocated to this service was $337,-072.50; and that the Association’s income from the limited members was $165,140.70. Expressed otherwise, the limited members received 40.28% of the patient-days’ service while contributing 13.68% to the Association’s gross income for 1962.

Article II of the Articles of Association, so far as material, states: “The purposes for which this Association is formed are the support of a benevolent and charitable undertaking in this: To provide medical and surgical treatment and care for the employes of the St. Louis and San Francisco Railroad Company, and of its associated Companies, who may be injured or disabled by accident or sickness while in such employ, and in the line of duty to such extent only and under such rules and regulations as may be prescribed from time to time by the Trustees hereinafter provided for; and to furnish such employes with additional privileges and benefits, not inconsistent or interfering with the main object of the Association, * *

Article II of the Association’s bylaws is to like effect, but much briefer in wording.

Under Article I of the Association’s Rules and Regulations employes of the Railroad and its affiliated companies here involved “shall from the date of their employment be considered members of the Association * *

Article IV of the Articles of Association provides that “ * * * the funds necessary for carrying out its purpose shall be raised in such manner as may be provided by the By-Laws.”

The Rules and Regulations provide for the assessment of specified monthly dues against the membership.

The constitutional and statutory provisions material here read: “* * * all property, real and personal, not held for private or corporate profit and used exclusively * * * for purposes purely charitable * * * may be exempted from taxation by general law. All laws exempting from taxation property other than the property enumerated in this article, shall be void.” Mo. Const.1945, Art. X, § 6.

And, our General Assembly has provided: “The following subjects are exempt from taxation for state, county or local-purposes: * * * (5) All property, real and personal actually and regularly used exclusively * * * for purposes purely charitable and not held for private or corporate profit * * § 137.100(5).

The case is presented on the theory appellant is a nonprofit corporation under Chapter 352. Appellant contends its hospital, not exempted by name, is exempt under our italicized words supra. A charitable use tax exemption depends upon the purposes of the organization and the use made of the property involved. Each claim rests upon the particular facts of that case. St. Louis Gospel Center v. Prose, Mo., 280 S.W.2d 827, 831 [4]; St. Louis Council, Boy Scouts v. Burgess, 362 Mo. 146, 240 S.W.2d 684, 687; Taxation, 51 Am.Jur. §§ 634, 635; 84 C.J.S. Taxation § 297, d; Annotations, 22 A.L.R. 907; 108 A.L.R. 284, as to hospitals, 287, 289, 298, 303; 144 A.L.R. 1483.

The following has been considered a comprehensive and carefully drawn definition of a legal charity: “ ‘A gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.’ (From Mr. Justice Gray in Jackson v. Phillips, 1867, 14 Allen (96 Mass.) 539, 556; 14 C.J.S. Charities § 1, n. 3.) Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826, 830; Northeast Osteopathic Hospital v. Keitel, 355 Mo. 740, 197 S.W.2d 970, 975 [7],

The last sentence of § 6, Art. X, Mo.Const., admonishes our General Assemblies and courts not to extend exemptions from taxation beyond the authorization found in said Article X. Provisions exempting property from taxation should be strictly, yet reasonably, construed. Midwest Bible & Missionary Inst. v. Sestric, 364 Mo. 167, 260 S.W.2d 25, 29 [2]; St. Louis Gospel Center v. Prose, supra, 280 S.W.2d l. c. 830.

Appellant, in its brief, makes several points which respondents do not question and do not brief. We mention that some of the issues thus raised are subject to limitations not stated in appellant’s brief. We do not, however, extend this opinion to discuss these matters as we consider them not determinative of this appeal.

Appellant says the fact that 40% of the hospital days of 1962 were used by limited members (pensioners) representing approximately 17% of the total Association membership, that said members pay $12.00 a year less than other members of the Association, and that this service costs $170,000 more than was received from limited members, shows the Association is relieving society of the problem of “medical care of the aged.” The term “limited member” indicates they are not entitled to the full benefits of a regular membership. The limited memberships are open to retired employes who have had not less than ten years of regular membership in the Association. Appellant overlooks that while a limited member was a regular member situations like that experienced in 1962 may have occurred. But, assuming appellant’s argument has some merit, the presentation fails to establish that appellant’s hospital is “used exclusively * * * for purposes purely charitable.”

A relief department organized by a railroad to provide sick and accident benefits for employes voluntarily becoming members upon agreeing to release the railroad of claims for damages, and being maintained by sums, based upon earnings, deducted from a member’s wages, with the railroad contributing in the event of a deficit, and being controlled by the railroad, was held not a charitable institution in a tort action, the court stating: “In our judgment the relief department organized by the defendant company, in view of the regulations provided for its government, cannot be classed as a charity without doing violence to every significance that word bears, either in popular or legal usage. It is not a charity within the definition of Justice Gray, above quoted, because the fund administered is not a gift by the employees, who make contributions; much less by the railroad company, which docs not make any unless a deficit occurs. * * * This strikes us as a purely business arrangement on the part of the employees of the railroad company.” Haggerty v. St. Louis, K. & N. W. R. Co., 1903, 100 Mo.App. 424, 446, 74 S.W. 456, 462.

Appellant, under factual situations similar to those in the Haggerty case, was considered the alter ego of the railroad and the railroad not exempt from tort liability in connection with the treatment of patients in Phillips v. St. Louis & S. F. R. Co., 1908, 211 Mo. 419, 435, 111 S.W. 109, 112, 113, 74 L.R.A.,N.S., 1167. The court said: “To our mind it [the relationship between the two corporate entities] is immaterial as to the true character of the hospital association as indicated by its charter provisions. It has, however, but few, if any, of the earmarks of a voluntary benevolent' association. Nor are there any earmarks of a public charity. What is received is paid for by the recipients. Under the weight of authority it cannot be held to be a charitable institution.”

The Haggerty and Phillips cases met approval and were followed in Chaffee County v. Denver & R. G. R. Co. E. R. Asso., 70 Colo. 592, 203 P. 850, 22 A.L.R. 902, 905, a case holding a hospital created and maintained by the employes of a railroad, whose membership therein was involuntary, for their benefit was not used solely and exclusively for strictly charitable purposes within the meaning of a constitutional tax exemption.

Appellant distinguishes the Haggerty and Phillips cases on the ground it, ever since 1940, has been under the control of the Railroad’s labor organizations and is not the alter ego or agent of the Railroad. The facts in the cases mentioned differ from the facts of this record, but the discussions in said cases on the issue whether the relief associations were charitable institutions, distinguished from the issue of tort liability, arc of some pertinence here.

We have hereinbefore stated the facts of this record. They are quite similar to the facts in Trustees of Local 88, Meat and Related Industries, Health and Welfare Fund Trust v. State Tax Comm., 1963, Mo., 367 S.W.2d 549. The following are among the similarities common to both cases: The Medical Institute of the Trustees case was also organized under Chapter 352 (l. c. 551). Its purposes were to provide medical, surgical, hospital and dental attention for members of Local No. 88, their wives and dependents (l. c. 550, 551, 553 [1]). Said Medical Institute owned land and a building thereon, termed “hospital” in its stated purposes, to furnish such services, and was furnishing service on an out-patient basis (l. c. 551). Its property was not used for any other than the stated purposes (id.). Doctors, other personnel, supplies and facilities were furnished by the Medical Institute to accomplish said purposes (id.). The project was financed by funds contributed by the employers of members of Local 88 under contracts governing the employes’ wages, working conditions, and “fringe” benefits, the employer paying $29.-70 per employe per month, which was used to construct the building and facilities and to furnish the doctors, nurses, other personnel, et cetera (551, 552). This payment by the employer was a part of the “cost-of-doing-business,” part of the employer’s labor costs, ultimately to be met from purchases by the employer’s customers (552). Briefly stated, only members of the Medical Institute were entitled to receive the benefits (550).

Answering appellants’ insistence in said Trustees case that their property was “ ‘clearly used for purposes purely charitable,’ ” the court pointed out that the $29.70 monthly payments by the employers were not free donations to the Medical Institute, but were payments “made under written contracts negotiated with employers who provide the funds for the so-called ‘free medical, dental and surgical care.’ We find no charity about it.” (l. c. 554.)

The court held appellants’ statement that relief from suffering and disease was one of the most prominent forms of charity overlooked “that the rule does not necessarily apply where the relief from suffering and disease is provided for by contract with the employer of the one receiving the relief so that the one receiving the relief is not obtaining a gift or charity, but is only obtaining what he has contracted to receive, as a part of the payment for his own labors under the term ‘fringe benefits.’” (554, 555.)

In the Trustees case (l. c. 556), the court discussed, among others, the cases of A. T. & S. F. Hospital Ass’n v. State Comm. of R. & T., 173 Kan. 312, 246 P.2d 299, and City of Palestine v. Missouri-Pac. Lines Hospital Ass’n, Tex.Civ.App., 99 S.W.2d 311, 314, cases holding associations operating with purposes and under facts similar to appellant’s to be charitable institutions and exempt from taxation. We declined to follow said cases, disagreeing with their reasoning. Appellant has advanced no sound ground for our charting a different course under this record. We remain in accord with the statements in the Trustees case, supra.

The City of Palestine case, supra, l. c. 315 [5], discloses that Texas courts construe “purely” in their constitutional phrase “purely public charity” as modifying charity. This construction is out of harmony with what is said in Fitterer v. Crawford, 157 Mo. 51, 59, 57 S.W. 532, 534, 50 L.R.A. 191, in discussing the phrases “purely public charity” and “used for purposes purely charitable.” See also what is said about the Fitterer case in the Trustees case (367 S.W.2d l. c. 555, 556). It may he well to note that In re Burroughs’ Estate, 357 Mo. 10, 206 S.W.2d 340, 344, mentioned in said Trustees case, stated in closing: “In the case before us there is nothing in the agreed statement of facts to show that the Masonic Orders of Mexico are engaged in any activities, social or otherwise, except those of the Masonic Order.” See St. Louis Lodge, No. 9, B. P. O. E. v. Koeln, 262 Mo. 444, 171 S.W. 329, L.R.A.1915C 694, Ann.Cas.1916E 984.

Appellant takes the view: “A not-for-profit hospital is a charity.” Appellant says: Appellant’s hospital, “ 'absent special circumstances, is a charity if not held for private or corporate profit’”; and that appellant’s hospital “ ‘is not held for private or corporate profit.’’”

Under the constitutional provision voiding exemptions not within Art. X, § 6, exemption provisions certainly should not be “enlarged beyond reasonable implications.” St. Louis Gospel Center v. Prose, Mo., 280 S.W.2d 827, 830. That a hospital exists as a nonprofit association and has no capital stock is not süfficient: for exempting its property from taxation. Trustees case, supra, 367 S.W.2d 553, 554 [2]. Appellant ignores, for instance, the requirement, that the property must be “used exclusively * * * for purposes purely charitable.” § 137.100.

We, as in the Trustees case (l. c. 556), are unable to follow the thought in the City of Palestine case to the effect that appellant’s services are furnished “through absolute gratuity.” Appellant directs attention to and purports to quote 14 C.J.S. Charities, § 2, p. 422: “Briefly,’ the test which determines whether a hospital is charitable or otherwise * * * is whether or not it is, maintained for gain or profit.” The phrase we have italicized reads in C.J.S,, “for gain, profit, or advantage.” See Northeast Osteopathic Hospital v. Keitel, supra, 197 S.W.2d 970, 975 [8]. Again, our law requires that the property be “used ex-clusively * * * for purposes purely charitable.” Securing the funds for the operation of appellant’s hospital through assessments against its members and requiring their employers under labor contracts to pay portions of such assessments is not an operation of the hospital through charitable gifts, donations or gratuities. Trustees case, supra, 367 S.W.2d l. c. 554. The payment of the assessments is a part of the cost of doing business by the employer and such payments with the additional payments by the members are the consideration for the Association furnishing the services to the employes who are the Association members. Throughout, there is a quid pro quo— a quid pro quo for the employer and for the employe in the assessments, being pay for work performed; and a quid pro quo for the treatment furnished by the hospital and received by the member of the Association-It has been said: “Charity seeketh not her own.” (1 Cor. 13, 5, King James’ Version.)

Appellant’s beneficence is limited to its members. The wife and dependent children of a member and those injured on the Railroad may receive treatment as pay patients ; but no pay patients have been treated for many years. Our statement of' facts discloses how the Association secures its funds. Those who or for whom the Railroad and the Association help pay the assessments are the ones entitled to appellant’s services. This has the earmarks of a beneficial society or association, also referred to as a benevolent society or association. The terms “beneficial” and “benevolent” are frequently used’ interchangeably,, but there is a distinction in that a benevolent association confers benefits without requiring an equivalent from the one benefited. 10 C.J.S. Beneficial Associations § 1. The terms “benevolent” and “charitable” are also used interchangeably, but “benevolent” is the broader term. See, for instance. Annotation, 144 A.L.R. 1485; 14 C.J.S. Charities § 12, p. 441; 10 Am.Jur. § 7; 84 C.J.S. Taxation § 282, p. 542; 51 Am.Jur. §§ 601, 626. Reasonably strict construction should take cognizance of the difference in the meaning of terms, particularly under the limitation found in our constitution, Art. X, § 6. It has been said that “dominant use” should not be substituted for “used exclusively.” Young W. C. A. v. Baumann, 344 Mo. 898, 130 S.W.2d 499, 502; Evangelical Lutheran Synod of Mo., Ohio and Other States v. Hoehn, 355 Mo. 257, 196 S.W.2d 134, 141, et seq., particularly [15].

Taxation is the rule. Exemption from taxation is the exception, the grant of a special privilege, a trend toward an abandonment of sovereignty and a departure from the philosophy requiring a fair distribution of the tax burden. It is stated in 84 C.J.S. Taxation § 297, p. 615: "Theory underlying exemption of hospitals is that they relieve the state of a burden which would otherwise rest upon it.” 51 Am.Jur. § 635, p. 607; Annotation, 34 A.L.R. 650. An exemption to a hospital, absent this essential prerequisite, is the equivalent of a gift of public funds at the expense of the taxpayers. We know of no duty on the state to provide general hospital services for those capable of providing it for themselves. There is no indication of record for a finding that the officers or employes of the Railroad or any of them are or might become public charges. Many of the Association members might resent an imputation that he is an object of charity. The Association functions in aiding members to guard against unexpected and heavy hospital expenses, charging and receiving a consideration therefor. Persons join the Association for the gain and advantage they anticipate receiving under group bargaining for hospital services, and not for dispensing charity to others. The fact that trustees represent the members of the Association demonstrates the ability of the members to provide the needed services for themselves. Appellant competes with taxpaying hospitals for patients able to meet their hospital expenses. See Fitterer v. Crawford, supra, 157 Mo. l. c. 64, 57 S.W. l. c. 535; Evangelical Lutheran Synod, etc. case, supra, 196 S.W.2d l. c. 147.

We are not unmindful that different results have been reached under similar facts in different jurisdictions. And, we are mindful of actions on behalf of the Blue Cross, Blue Shield, and other like institutions involving the issue of their property being tax exempt. See among others, Associated Hospital Service, Inc. v. City of Milwaukee, 1961, 13 Wis.2d 447, 109 N.W.2d 271, 88 A.L.R.2d 1395; Annotation, l. c. 1414; Cleveland Hospital Serv. Asso. v. Ebright, 1943, 142 Ohio St. 51, 49 N.E.2d 929; Hospital Serv. Asso. of Toledo v. Evatt, 1944, 144 Ohio St. 179, 57 N.E.2d 928; United Hospitals Serv. Asso. v. Fulton County, 1960, 216 Ga. 30, 114 S.E.2d 524. Some of the cases involved statutes exempting the institution from taxation. It is not necessary to develop these cases under the issues presented here.

Appellant’s hospital is not “actually and regularly used exclusively * * * for purposes purely charitable,” and is subject to assessment for ad valorem taxes.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by BOHLING, Special Commissioner, is adopted as the opinion of the court.

All concur.

ON MOTION FOR REHEARING OR IN THE ALTERNATIVE TO TRANSFER TO BANC

PER CURIAM.

Appellant’s “Motion for Rehearing or in the Alternative to Transfer to Banc” is to the effect that our opinion “adopts the former strict construction” of Art. X, § 6, Mo. Const., and § 137.100(5), quoted therein, and overlooks that said former construction was later held so strict as to be unreasonable. Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826, 829 [4-7], overruling, in so far as conflicting, State ex rel. St. Louis Y.M.C.A. v. Gehner, 320 Mo. 1172, 11 S.W.2d 30, and St. Louis Y.M.C.A. v. Gehner, 329 Mo. 1007, 47 S.W.2d 776, 81 A.L.R. 1449. See also Bader Realty & Inv. Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489, 492; Y.M.C.A. v. Sestric, 362 Mo. 551, 242 S.W.2d 497, 503.

Appellant, in its original brief and in this motion, quotes the following from Baptist Hospital v. City of Nashville, 156 Tenn. 589, 3 S.W.2d 1059, 1060 [1]: “The courts are practically unanimous in holding that a charitable institution does not lose its charitable character, and its consequent exemption from taxation, merely because recipients of its benefits, who are able to pay, are required to do so, where funds derived in this manner are devoted to the charitable purposes of the institution.” See also State ex rel. Alexian Brothers’ Hospital v. Powers, 10 Mo.App. 263, affirmed by a divided court in 74 Mo. 476 and 62 A.L.R. 330.

Our holdings are that charitable use exemptions depend upon the actual use made of the. property and the stated objectives of the corporate organization are not controlling. St. Louis Gospel Center v. Prose, Mo., 280 S.W.2d 827, 830 [4] and cases cited; Evangelical Lutheran Synod v. Hoehn, 355 Mo. 257, 196 S.W.2d 134, 143.

Salvation Army v. Hoehn, supra, 188 S.W.2d 826, 830, quotes State ex rel. Spillers v. Johnston, 214 Mo.’ 656, 113 S.W. 1083, 1085(b), 21 L.R.A.,N.S., 171, on the meaning of “used exclusively” : “ ‘The phrase “exclusively used” has reference to the primary and inherent use as over against a mere secondary and incidental use. People ex rel. v. Lawlor, 74 App.Div. 553, 77 N.Y.S. [840], loc. cit. 842 et seq. If the incidental use (in this instance [the proprietor and family] residing in the building) does not interrupt the exclusive occupation of the building for school purposes, but dovetails into or rounds out those purposes, then there could fairly be said to be left an exclusive use in the school on which the law lays hold.’” See Evangelical Lutheran Synod case, supra, 196 S.W.2d l. c. 143 [15].

St. Louis Council, Boy Scouts of America v. Burgess, 362 Mo. 146, 240 S.W.2d 684, 686 [1, 2], citing authority, states: “Actual and regular user for such purposes [authorized exemption objectives] must be proved. Mere prospective user is not sufficient.” Property used for hospital purposes is not specifically named as exempt from taxation in Art. X, § 6, Mo.Const. or in § 137.100(5). Hospitals must come within the phrase “for purposes purely charitable” to qualify for tax exemption under said provisions.

Appellant would distinguish this case from Trustees of Local 88, etc. v. State Tax Commission, Mo., 367 S.W.2d 549, on the ground that case involved “a dispensary — a building in which doctors maintained offices” ; contending “that the property of a nonprofit hospital devoted to alleviating the suffering of mankind is, by nature of its use, ‘used exclusively for purposes purely charitable,’ even though the hospital is available only to members of a non-profit association.” We do not agree that the property of every hospital, organized under the benevolent or nonprofit association’s law is necessarily, actually and regularly used exclusively for purposes purely charitable. As brought out in our statement of the facts, the facilities of appellant’s hospital are available only to members of appellant association. Many years have passed since there were any pay patients. The primary and apparently the sole use of the hospital is for the advantage of the members of plaintiff association. The reasoning underlying the result reached in the Trustees of Local 88 case is applicable to the stipulated material facts of this record.

Appellant’s motion is overruled.

      . Statutory references are to RSMo 1959 and V.A.M.S.


author: STOCKARD, Commissioner.

text:
    John J. COMTE, Plaintiff-Appellant, v. Lonnie BLESSING, Defendant-Appellant.
    No. 50319.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.

      Buerlde & Lowes, Jackson, Albert C. Lowes, Jackson, for appellant.
    Leo J. Rozier, Perryville, for respondent, John J. Comte.
   STOCKARD, Commissioner.

. Plaintiff, John J. Comte, brought suit in two counts for criminal conversation and alienation of affections against Lonnie Blessing. Pursuant to jury verdict, judgment was entered on Count I (criminal conversation) for defendant, and judgment was entered for plaintiff on Count II (alienation of affections) in the amount of $5,000. Plaintiff has appealed from the judgment as to Count I wherein he sought $50,000 actual and punitive damages, and defendant has appealed from the judgment as to Count II. We shall first review defendant’s contentions of error relating to the judgment on Count II.

Defendant first contends that Count II of the petition fails to state a claim upon which relief can be granted in that (1) “it must be alleged * * * that the defendant actually enticed away the spouse of the plaintiff;” that (2) “the plaintiff himself did not cause the alienationand (3) that “plaintiff’s spouse did not, in fact, voluntarily bestow her affections upon a stranger”.

The elements of a cause of action for alienation of affections are defendant’s wrongful conduct, plaintiff’s loss of the affection or consortium of his spouse, and the causal connection between such conduct and the loss. 27 Am.Jur. Husband and Wife § 523; 42 C.J.S. Husband and Wife, § 669; Rank v. Kuhn, 236 Iowa 854, 20 N.W.2d 72, 74; Koehler v. Koehler, 248 Iowa 144, 79 N.W.2d 791, 796; Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376, 31 A.L.R.2d 706; McQuarters v. Ducote, Tex.Civ.App., 234 S.W.2d 433. Plaintiff alleged that defendant “harbored [plaintiff’s wife] into his home, constantly kept company with her in various places, persuaded her to live apart from plaintiff, * * * and by arts and wiles of his caused plaintiff’s said wife to become dissatisfied with her marriage to plaintiff * * Defendant’s motion to require Count II to be made definite and certain, which was overruled, asked only that plaintiff be required to allege “where the alleged marriage took place * * * and at what time or places the alleged acts referred to in paragraphs 2 and 3 of Count II * * * transpired.” The petition is not a model, and some of the allegations border on allegations of conclusions and not of facts, but in the absence of any more specific objection to Count II it sufficiently alleged as the wrongful act of defendant that he enticed away the spouse of the plaintiff. Items (2) and (3) above, if established by proof, constitute defenses to the cause of action for alienation of affections, 42 C.J.S. Husband and Wife, §§ 669 and 670, and to state a cause of action it is not essential that plaintiff anticipate and negative such defenses in his petition. The essential issues on this appeal are whether there was sufficient evidence to submit to the jury the issue of the alienation of affections by defendant of plaintiff’s wife, and if so, whether that issue was properly submitted by the instructions.

Plaintiff and his wife, Helen Marie, were married on February 9, 1952, she then being about 18 years of age and four months pregnant. During the marriage, which was dissolved by divorce on September 14, 1961, she gave birth to six children. Plaintiff and his wife lived at several places in Perry County, but in 1959 they moved to a house about one mile from where the defendant, a bachelor who was then 54 years of age, lived alone on his farm located four miles west of Perryville. Plaintiff was a carpenter by trade, and commencing in 1960 he worked in St. Louis, but would return to his home on Wednesday nights and on weekends. Social “visits” between plaintiff and his wife and the defendant commenced in the latter part of 1959 or early 1960, and the three of them went to or were at dances together, apparently on numerous occasions. The first meeting between defendant and Helen Marie without plaintiff being present occurred after she wrote defendant a note, delivered by her “little boys,” in which she asked him to stop by her house. In August 1960, plaintiff noticed that his wife was “cold” toward him, and after a conversation with her about it he went to see defendant to find out if it was true, as plaintiff said, that defendant was “seeing my wife while I was in St. Louis.” Defendant admitted to plaintiff that he had had sexual intercourse with Helen Marie, and at the trial defendant admitted four acts of sexual intercourse with her, two and possibly three acts occurring after this conversation between plaintiff and defendant. It is not entirely clear from the evidence when this conversation took place, but apparently it occurred on September 21, 1960, the day that defendant entered a hospital where he remained for three weeks. While defendant was in the hospital, at his wife’s request plaintiff took her “a few times” to visit defendant after she told her husband that she “loved him [defendant] and was going to see him.” After defendant returned to his home, and after plaintiff knew that Plelen Marie professed to be in love with defendant and that they had engaged in an act of adultery, on several occasions plaintiff took his wife by automobile to defendant’s home, apparently at night, and left her there alone with him. Sometimes he would return to get her and other times she would walk home. At one time when Helen Marie walked to defendant’s house, plaintiff went there ahead of her and apparently hid under the bed, but when his wife arrived defendant talked to her on the porch, and the inference is that he would not let her in the house. Plaintiff admitted that defendant told him on more than one occasion that 3iis wife was “chasing him,” and that at one -time defendant asked plaintiff to keep his wife away from him. Plaintiff stated that lie went to defendant’s home a “number of times” and discussed with him the fact that Helen Marie was coming over and that “he [defendant] should make her go back "home,” and he added that it was “impossible” for him (plaintiff) to keep her at home. He attempted to talk to Helen Marie -about stopping her affair with defendant but did not get her “complete cooperation,” In his deposition, read to the jury by plaintiff -as a declaration against interest, defendant stated that he never intended to marry Helen Marie and always told her so, but she “bothered me” and he left her alone but she would not let him alone. Plaintiff knew that his wife was writing “love letters” to defendant, and when he asked defendant for those letters he readily gave them to plaintiff. On September 21, 1960 when defendant entered the hospital, he told Helen Marie in plaintiff’s presence that she should “go back” to plaintiff and that he could not marry her. However, it was subsequent to this that acts of sexual intercourse occurred between defendant and Helen Marie, and in addition, on several occasions defendant went to plaintiff’s house in his absence and "he and Helen Marie sat in front of the "house in defendant’s truck. At such times "he affectionately embraced her and she kissed him.

In December 1960, plaintiff left his home .and lived with his mother until February 9, 1961 when he returned. He found that his wife was “cold” and “ready to leave.” In .a letter directed to defendant and dated February 9, 1961 plaintiff stated that he would not “give” his wife a divorce “but if she leaves me for more than 48 hours she -cannot ever come back.” He also stated that he would not kill her or defendant, but that he had told her what he was going to do and that defendant should “ask her [and] she will be glad to tell you.” His intentions in this respect are not revealed in the evidence. Plaintiff’s wife did leave the "house the next morning because, according to plaintiff, “she wasn’t gonna live in the same roof where I lived.” After staying away about ten hours she returned to the house, ate supper with her husband and children and then “went back to [defendant’s] house and stayed some more.” The following day plaintiff intentionally took an overdose of “nerve tablets,” and was hospitalized about four weeks. Helen Marie was then home because plaintiff fired a gun into the floor of the house “to make her stay back from me” when she “wanted to help me and I didn’t want no help.” When he returned home from the hospital his wife then left and went to work. Plaintiff subsequently filed suit for and obtained a divorce, including custody of the children, two of whom at time of trial were in a private home and the other four were in a church home for children.

Helen Marie testified as a witness for defendant. She stated that she fell in love with defendant the first time she saw him but that she did not love him any more. She also stated that she never loved her husband, even at the time she married him. She admitted her promiscuity with defendant with an air of braggadocio, and she stated in effect that she was the aggressor in the affair. She admitted that her father had talked to her about her affair with defendant, but that she told him “to mind his own business,” and that she would “live [her] life as [she] pleased.” She stated that she made similar statements to her brother, and concluded with the comment that “Nobody tells me what to do. I do as I please.”

Defendant contends that the trial court erred in failing to direct a verdict in his favor as to Count II for alienation of affections because (1) Helen Marie was the active, moving force, that is, the seducer, and (2) plaintiff permitted, contrived at, and consented to the acts of adultery.

The evidence authorizes a finding that Helen Marie was the aggressor or the seducer in her affair with defendant, and it has been held that where the alienation or separation of the spouses is caused by the voluntary act of the allegedly alienated spouse rather than by the wrongful conduct of the defendant there is no liability. See the cases cited in the annotation at 19 A.L.R.2d at pp. 486-493. But when the jury could find from the evidence that defendant was not entirely without fault, as in this case by reason of the acts of adultery and other conduct of defendant, the jury could also find that there occurred an unprivileged, intentional interference on the part of defendant with the legally-protected marital rights of plaintiff, and it is a question for the jury whether such conduct was a contributing and controlling causé of the loss of affections suffered by plaintiff. See generally, Sandler v. Schmidt, Mo., 263 S.W.2d 35; 42 C.J.S. Husband and Wife, § 670. As to the issue of liability on the part of defendant in such situation, it is not a question of which is the more to be blamed, 27 Am.Jur. Husband and Wife §§ 525 and 537, although such issue may be relevant to the isr sue of damages. 27 Am.Jur. Husband and Wife §§ 537 and 545. In view of the evidence in this case defendant was not entitled to a directed verdict as a matter of law on the basis that Helen Marie was the agr gressor or the seducer.

.-It is true, as contended by der fen^ant, that implied- or express consent or connivance on the part, of plaintiff to the otherwise, wrongful acts, of defendant conr stitute, a defense to an .action for alienation of affections. 27 Am.Jur. Husband and Wife § 539; 42 C.J.S. Hasband and Wife, § 674. The conduct of plaintiff in taking his wife to visit defendant at night alone in !his house after he knew of her profession of love for him and of sexual relations between them is difficult of justification and contrary to the normal reaction of an innocent and incensed husband, if in fact he was, who discovers unfaithful conduct, which includes adultery, on the part of his wife. Defendant relies on Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343, where the issue of connivance and consent was submitted to the jury. Here, defendant contends that connivance and consent were established as a matter of law, but we are compelled to disagree. It was a jury question under the facts of this case whether the conduct of plaintiff amounted to consent on his part to the loss of his wife’s affections or to connivance on his part in bringing about those wrongful acts by defendant which plaintiff contends resulted in the loss of his wife’s affections. Neither connivance nor consent was established as a matter of law, and therefore, defendant was not entitled to a directed verdict on this basis.

Defendant also asserts that he was. entitled to a directed verdict because the “allegations of Count II of plaintiff’s petition have not been proved.” He then sets, out various allegations therein of which he asserts there was no proof, and in sórne instances he is correct. However, it is not necessary that plaintiff prove those allegations of his petition which are unnecessary to establish a submissible case for the jury. We rule that the evidence of plaintiff established such a case, and that was all that was required.

Defendant next asserts that he-was entitled to. a directed verdict because-“under all the evidence shown there was no-affection existing between plaintiff and Helen Marie Comte, and therefore, there-was nothing to destroy or deprive plaintiff of.” Prior to the entrance of defendant upon the scene plaintiff and his wife were living together, and she had given birth to six children, apparently fathered by plaintiff. Under such circumstances some affection can be presumed. In addition, “it is. no defense to such action [alienation of affections], as a general rule, that the spous.e of the plaintiff had little or no affection for the plaintiff before the alleged wrongful acts-, of the defendant, * * *.” 27 Am.Jur. Husband and Wife § 537. See also De Ford v. Johnson, 152 Mo.App. 209, 133 S.W. 393; and Reynolds v. Reynolds, Mo.App., 143 S.W.2d 347. Such matters, however,, may be relevant to the issue of damages. 27 Am.Jur. Husband and Wife §§ 543 and 545.

Defendant assigns as error the giving of instructions 5, 7, 9 and 10 at the request of the plaintiff. We shall review as briefly as possible the substance of these instructions.

Instruction 5 first set forth two abstract statements of law that (1), a husband is entitled to the society, .comfort and assistance of his wife, and (2) that the law gives a right of action to the husband against any person who entices or persuades her to separate, or remain apart from him. The instruction then submitted that if the jury found that plaintiff and Helen Marie were husband and wife and “that the'defendant intentionally persuaded or induced plaintiff’s wife to separate from plaintiff and sever the relation of husband and wife, or remain apart from him, * * * and that the plaintiff was thereby deprived of the society, comfort, affection,' and assistance of his wife, * * * then your verdict will be in favor of plaintiff 'and against defendant. * * * and you shall assess his damages at such sum as will reasonably compensate him for the deprivation, loss of the society and comfort and assistance of his said wife * * *.”

Instruction- 7, set forth four abstract statements of law, namely, that (1) it is not necessary that 'plaintiff prove by the evidence that he had at- any time the love and affection of his w'i'fe; '(2) that under the law a stranger has no right'to voluntarily and unasked interfere with and disturb the concord and unity of the domestic relation or to interfere and cut off any chance or possibility of a- future affection springing up between two spouses-; (3') that the plaintiff had the right to seek the-comfort, companionship, affection and assistance of his wife without the interference of any outside person; and (4) although the home life of plaintiff and his wife was unpleasant this would not justify defendant in voluntarily intermeddling with plaintiff’s domestic affairs. The instruction then submitted that if the jury found- “that plaintiff’s wife still would have lived and remained with him if it had not been for 'the wrongful acts; conduct, and influence of defendant, if any, and that she was-induced to separate and remain apart from plaintiff by the intentional wrongful acts, conduct, and influence of defendant, and that said acts, conduct, and influence were naturally calculated to cause such separation, then your verdict will be for plaintiff and against defendant on said Count II (alienation of affections) of said petition.” We note that a measure of damages provision was included in instruction 5 but not in instruction 7, and that instruction 8 was a separate measure of damages instruction, apparently applicable to the issue of alienation of affections but not worded the same as the provision in instruction 5.

Instruction 9 sets forth the abstract statement of law that it is not necessary that plaintiff prove by the evidence that defendant directly requested plaintiff’s wife to leave him or to remain apart from him. It then submitted that if the jury believed that “defendant was intentionally guilty of such conduct as was calculated to prejudice plaintiff’s wife against him, and to alienate her from him, and to induce her to leave him, and to remain apart from him; and that such effect was intended by defendant to be produced, and was actually produced by his conduct, then the jury should find a verdict for the plaintiff on said Count II (alienation of affections) of said petition.”

Instruction 10 sets forth the abstract statement of law that plaintiff is not required to prove that defendant enticed and persuaded his wife away by direct and positive evidence, but these facts may be proved by circumstantial evidence, and it is the" duty of the jury to take into consideration all the facts and circumstances in evidence. It then submitted that if “from all the evidence the jury believe that defendant intentionally persuaded plaintiff’s wife to separate and remain apart from him, then it will be the duty of the jury to find a verdict for plaintiff on said Count II (alienation of affection) of said petition.”

These are all of the verdict directing in--structions pertaining to the action for alienation of affections given at the request of the plaintiff. In none of them are any facts hypothesized which if found to exist would constitute what plaintiff contends to he wrongful acts on the part of the defendant which was a controlling cause in bringing about the loss by plaintiff of his wife’s affections. We cannot determine whether, in the action for alienation of affections, plaintiff relies on the acts of adultery or some other conduct of the defendant as the wrongful acts leading to the alienation of affections. However, we note that in the action for criminal conversation the jury found the issues for the defendant, and as to that action the only submitted defense was that of connivance and consent which was also submitted as a defense to the action for alienation of affections. In the action for criminal conversation the jury either believed that no act of adultery occurred, but which was admitted by both the defendant and Helen Marie, or they found connivance and consent on the part of plaintiff. If plaintiff relies on the acts of adultery as constituting the wrongful acts of defendant in this action for alienation of affections, those acts are the same acts which were submitted in the action for criminal conversation, and the jury has found that those acts did not occur, or that if they did they occurred by reason of connivance and consent of plaintiff.

As a further comment concerning the instructions generally, we are of the opinion that without qualification by reason of the facts and circumstances of this case all of the abstract statements of law in plaintiff’s instructions are not necessarily correct. For example, without any qualification as to connivance and consent, under the facts of this case it is not correct to state abstractly that “The law gives a right of action to the husband against any person who entices or persuades [his wife] to separate, or remain apart from him.”

Despite the failure of plaintiff to hypothesize in his instructions the facts essential to his right of recovery for alienation of affections, defendant makes no complaint on that basis. The objections to the instructions are somewhat tenuous, although we do not rule that they all are entirely without merit. In view of the irregular method of submission by plaintiff, and the waiver by defendant of the most obvious irregularity in plaintiff’s instructions, we prefer not to rule this case on defendant’s objections to the.m- We have set out plaintiff’s instructions, and made certain comments, preparatory to our discussion of two of defendant’s requested, but refused, instructions.

Defendant’s requested instruction B set forth the abstract statement of law that a spouse may voluntarily give her affections to another, and that when this is the case and such other person does nothing wrongful to gain her affections, then no ground of liability attaches against such person for an alienation of affections. It then sets forth a second abstract statement of law that the estrangement or alienation must arise from the conduct of the defendant complained of, or such conduct must be the controlling cause leading to the estrangement, and there can be no liability for a voluntary alienation.

Defendant’s requested instruction D was as follows: “The court instructs the jury that before you can find.the issues for the plaintiff, John Comte, and against the defendant, Lonnie Blessing, as to his claim for alienation of affections, you must find from the evidence that the defendant, Lonnie Blessing, intentionally influenced the wife of the plaintiff to withdraw her affections from the plaintiff, John Comte. It is not enough for plaintiff to show merely that Lonnie Blessing was friendly with the wife of the plaintiff, nor is sufficient that you should find merely that defendant’s conduct in his association with Helen Marie Comte amounted to impropriety, or was even of a scandalous nature, but before you can find for plaintiff as to his claim for alienation of affections, it must be shown by the evidence that Lonnie Blessing’s conduct in his association with Helen Marie Comte was improper and wrongful, and further, that Lonnie Blessing intended by such conduct to cause Helen Marie Comte to withdraw her affections from her husband, or that such conduct upon the part of Lonnie Blessing did cause the wife of plaintiff to withdraw her affections from plaintiff. If plaintiff has failed to prove any one of these facts by the greater weight of the evidence, it will be your duty to find the issues for the defendant, Lonnie Blessing, and against John Comte, the plaintiff, as to his claim for alienation of affection.”

Instructions B and D contain correct abstract statements of law under the facts and circumstances of this case. The giving of an instruction identical with D, except for necessary changes as to names, was held not to constitute error in Sandler v. Schmidt, supra, and it was there pointed out that “an almost identical” instruction was approved in Claxton v. Pool, 182 Mo.App. 13, 167 S.W. 623. Of course, the fact that it was not error to give the instruction does not necessarily mean that it is error to refuse it. These instructions are cautionary in nature and consist only of abstract statements with no hypothesization of facts to make them applicable to this particular case. With a proper submission on the part of the plaintiff it ordinarily would be a matter of discretion on the part of the trial court whether they should be given or refused. However, the facts of this case and plaintiff’s method of submission of his case result in these instructions having particular significance. For example, the jury could find from the evidence in this case, although such conclusion is not compelled, that defendant was a quiet, mild, lonely man of middle age who lived alone, and upon whom an adventurous and promiscuous younger woman bestowed her attentions and affections, and that defendant succumbed to her wiles despite his objections to her conduct when not under her immediate influence.

It is interesting to note that in Farrow v. Roderique, Mo.App., 224 S.W.2d 630 the instructions given at the request of the plaintiff in that case were substantially the same as those given at the request of the plaintiff in'this cáse. In'fact, some 'of the language is identical. On appeal it was held that plaintiff’s instructions were erroneous in that they were ambiguous, but that when “read with the other instructions,” particularly those of the defendant they did not result in “reversible error.” Instructions 7 and 9 in that case are substantially the same as defendant’s requested instructions B and D in this case.

Plaintiff elected to submit his case in the manner he did, that is, by abstract statements of law and without hypothesizing essential facts. Defendant apparently consented to that procedure because he does not assert error in this respect and the instructions given at his request and those requested by him but refused have the same deficiency. However, when the plaintiff does elect this procedurally improper method, he still must be correct in his submissions as to the law of the case, and if he is not, defendant may object thereto for that reason, and he may request similar instructions to clarify or correct plaintiff’s instructions. It may be that plaintiff’s instructions contain correct general abstract statements of law when not applied to the facts of any particular case, but in view of the facts and circumstances of this case and the defenses raised by defendant, instructions B and D were necessary and proper in order for the jury to have a complete and fair presentation of the issues, insofar as that was possible under plaintiff’s method of submission.

Plaintiff’s position on this appeal is that the jury was adequately instructed as to the issues by the instructions given at his request, and that a jury “would have to be pretty thoroughly stupid if it did not understand that plaintiff could not recover unless it found that the acts of the defendant were the cause of the separation of the plaintiff’s wife from him.” However, when plaintiff deviates from the accepted and approved procedure of submitting issues to the jury by instructions, the defendant is entitled to meet those issues on the same basis as that selected by plaintiff. In this case the defendant attempted to do so by his requested instructions B and D, and to refuse those instructions under the particular circumstances of this case resulted in an unfair and incomplete, and therefore inaccurate, presentation of the issues.

There are numerous other contentions presented which we shall not discuss because it is expected that on a new trial, if one is had, plaintiff and defendant will follow the correct procedure in the presentation of issues to the jury.

We turn now to plaintiff’s appeal from that part of the judgment based on Count I. of the petition, criminal conversation.

Plaintiff first contends that the trial court erred in giving instruction 3 at the request of the defendant which submitted that the verdict should he for the defendant if the jury found that plaintiff “permitted, contrived at and consented to Helen Marie Comte’s commission of acts of criminal conversation or adultery with defendant, if any, and could have prevented said acts, if any, and resulting damage, if there was any, and that these acts and omissions upon the part of the plaintiff proximately contributed to the plaintiff’s damage, if any he did sustain.” Plaintiff does not contend that this instruction is not a correct declaration of the applicable law. The only contention is that “there was no evidence in the record tending to show that Plaintiff Comte knew about and acquiesced in the wrong.”

It has long been recognized, in accord with sound public policy, that consent or connivance by one spouse to acts of adultery by the other is a defense to an action for criminal conversation by the allegedly injured spouse, Lewellen v. Haynie, Mo., 287 S.W. 634 ; 27 Am.Jur. Husband and Wife § 539; 42 C.J.S. Husband and Wife, § 698, whether such consent or connivance be active or passive in nature. 27 Am.Jur. Husband and Wife § 539. In this case plaintiff may not have known of the first act of adultery between his wife and defendant, but after he learned of it and after he was told by his wife that she was in love with defendant,, he took her to see defendant while he was in the hospital and also took her in his automobile to defendant’s house at night, left her there alone with defendant, and returned to get her and take her back to her home. There can be no question but that this evidence authorizes a finding by the jury that plaintiff took positive and affirmative acts to create situations where, any reasonably intelligent man would know that a continued adulterous relationship would probably result. The question is whether this conduct is such that a jury could find that plaintiff connived and consented to the adulterous acts as that defense applies in an action for criminal conversation.

In Kohlhoss v. Mobley, 102 Md. 199, 62 A. 236, 5 Ann.Cas. 863, after the plaintiff knew his wife had committed an act of adultery with the defendant, plaintiff consented to her going to a nearby town where plaintiff knew that defendant planned to meet his wife. Apparently another act of adultery there occurred. The court .held that connivance and consent is usually established as a conclusion from a line of conduct pursued by the husband in relation to the wife’s intercourse with and relations to the alleged paramour, and that when he knows of her past wrongful conduct “he must not make opportunities for her or smooth her path to the adulterous bed.” In the Kohlhoss case connivance and consent was held to be established as a matter of law. We do not think it is so established in this case, but we are of the opinion that the jury could find connivance and consent. See 27 Am.Jur. Husband and Wife § 539. Instruction 3 is supported by evidence.

Plaintiff next contends that since defendant admitted under oath that he had sexual intercourse with plaintiff’s wife, the trial court should have directed a verdict for plaintiff on Count I of his petition based on criminal conversation. Regardless of the right of a trial court to direct a verdict for the plaintiff based on oral testimony, the defense of connivance and consent was interposed and was supported by the evidence. For this reason, if not others, plaintiff was not entitled to a directed verdict on Count I.

That part of the judgment pertaining to Count I is affirmed, and that part pertaining to Count II is reversed and the cause therein is remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.