author: MAUGHMER, Commissioner.

text:
    STATE of Missouri ex rel. N. W. ELECTRIC POWER COOPERATIVE, INC., a Corporation, Appellant, v. Donald J. BUCKSTEAD, Marjorie Buckstead, Whitman H. Hanes, Marie Beard Hanes, Guy Pine, Frances L. Pine, Homer W. Bluhm, and Milea S. Bluhm, Respondents.
    No. 24320.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Charles B. Fitzgerald, Crouch & Fitzgerald, Warrensburg, Eugene E. Andereck, Pickett, Andereck & Hauck, Trenton, for appellant.

      Gayles R. Pine and Pine, Welling, Jones & Mitchell, Warrensburg, for respondents.
   MAUGHMER, Commissioner.

On May 7, 1962, relator, the N. W. Electric Power Cooperative, Inc. instituted condemnation proceedings to take a right-of-way easement across the lands of defendants in Johnson County, Missouri. The proposed easement was perpetual, covered a strip of land 100 feet wide and on it relator planned to construct and maintain an electric transmission line. Commissioners were duly appointed, inspected the premises and filed their report. Damages were allowed on each tract. The defendants Donald J. and Marjorie Buckstead, husband and wife, were awarded $200; Whitman and Marie Beard Hanes, husband and wife, were awarded $200; Guy and Frances L. Pine, husband and wife, were awarded $250, and Homer W. and Milea S. Bluhm, husband and wife, were awarded $500, making a total of $1150.

The landowners filed timely exceptions and upon motion the four cases were consolidated for joint jury trial. There was a jury trial with a verdict in favor of each group of defendants. Judgment in accordance with the verdict was entered and was for larger amounts than had been assessed by the commissioners. By the judgment the Bucksteads were awarded $1525, as against $200 by the commissioners; the Hanes, $1407, as against $200; the Pines, $1675, as against $250, and the Bluhms, $2500, as against $500, making a total judgment of $7,107.00.

The appellant, Cooperative, raised only one issue in its motion for new trial and raises only that same one issue on this appeal. It says the trial court ordered defendants to answer certain interrogatories, that defendants did not answer and, therefore, relator’s motion to strike defendants’ pleadings, including their exceptions to the commissioner’s report, should have been sustained and judgment by default in favor of relator should have been entered. We shall endeavor to present all factual occurrences relating to this one issue and pass lightly over the other trial events which are not pertinent to this appeal.

On September 4, 1962, relator submitted 14 interrogatories. Six days later the defendants filed written objections. On October 8, 1962, the matter was heard by the court and the following order was entered:

“Defendant’s Objections as to Relator’s Interrogatories are overruled as to all obj ections except as to Interrogatories 5, 9, 10, 13 and 14 which are sustained. Defendants to have 15 days in which to file answer”.

The nine remaining interrogatories called upon defendants to state the legal description of their lands, in whose names title was held, all changes of ownership since the appropriation, description of all improvements, including when made and the cost thereof, what crops were on the land at the time of appropriation, the names and addresses of all tenants, the names of all sellers of comparable lands in the area during the previous two years, and the opinion of the defendants as to the fair market value of the land and of the improvements. Defendants did not and never have answered any of the interrogatories.

Nothing further was done until on January 27, 1964 (15 months later), when the Cooperative filed “Relator’s Motion to strike defendants’ pleadings for failure to answer interrogatories”. This motion recited the court’s order of October 8, 1962, requiring answers, stated that no answers had been made and prayed the court “for an order striking out the exceptions and other pleadings filed herein by the disobedient defendants heretofore referred to and enter its order rendering judgment by default in favor of relator against said disobedient defendants in accordance with Supreme Court Rule 61.01(b) (3)”. This motion was never called up or brought to the court’s attention until March 11,1965 (nearly 14 months later) on which date the case had been set for jury trial and jurors were waiting in the court room preparatory to being empaneled to try the case. At this time in the court’s chambers, counsel for relator orally invited the court’s attention to the motion, urged that it be sustained, requested that defendants’ pleadings and exceptions be stricken and judgment by default be entered for relator. It was also requested that the court deny the defendants the right and privilege of presenting any testimony. Counsel at that time said: “I talked to Mr. Pine (one of defendants’ attorneys) some short time ago. I told him I wanted these answers and he said he was having difficulty getting the answers. I told him to do the best he could and we got no answers to the interrogatories and we are now here this morning for trial without them * * * There was no request for a continuance and no request for any other disciplinary action. The trial court denied the motion and stated:

“Well, this is the first time the Court had any official knowledge that these Interrogatories were not answered and to come now when the jury is ready to proceed with the case and the Court is ready to proceed — I feel the motion should be overruled.
“Furthermore, this is a condemnation case and you don’t have to plead like you do in a divorce case or a damage suit and as I understand the law an exceptor in a condemnation case doesn’t have to plead except to file exceptions and the motion will be overruled”.

To begin with it may quickly be stated that if the court was under the impression that the rules of civil procedure are not applicable to condemnation suits it was in error. Section 523.050(2) provides:

“Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages;”

We cite two opinions on this point. In State ex rel. State Highway Commission of Missouri v. James, Mo.App., 115 S.W.2d 225, 226, the court said:

“After exceptions are filed by one or both parties to the award of the commissioners in a condemnation suit, it appears that the proceedings thereafter are governed by the procedure in regular civil cases.”

And in State ex rel. State Highway Commission v. Green et al., Mo., 305 S.W.2d 688, 694, the Supreme Court said:

“In a condemnation case, when exceptions have been filed to the award of the commissioners, it appears that the proceedings thereafter, upon the trial de novo to a jury, are governed by the procedure applicable to ordinary civil cases.”

However, in our opinion the court denied the relator’s motion for the further reason that it did not, in the exercise of its discretion, believe it was proper to sustain it.

The Supreme Court Rule 61.01 (and Sec. 510.060, V.A.M.S.) provide in part:

(a) “Upon the refusal of a party to answer any interrogatory submitted under Rule 56, the proponent of the question may move the court, on reasonable notice to all persons affected thereby, for an order compelling an answer.
(b) “If any party * * * refuses to obey an order made under paragraph (a) of this rule requiring him to answer designated questions * * * the court may make such orders in regard to the refusal as are just, and among others the following:
‡ ‡ $1 sfc
(3) “An order striking out pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

The rule and statute say: “[T]he court may make such orders in regard to the refusal as are just, and among others the following:” (Italics added), and then lists certain permissible sanctions. It appears from this wording that wide leeway is given the court in prescribing penalties for noncompliance. Moreover, the authorization is not mandatory, but rather permissive. It says “may” and does not say “shall”. We believe, too, that broad discretion is left to the court and unless there is manifest abuse, the discretion as exercised will not be disturbed. 27 C.J.S. Discovery § 68, p. 199 tells us:

“Which of the several remedies or penalties prescribed for a failure to answer shall be adopted and enforced is within the sound discretion of the court. The court should ordinarily give the offending party a further opportunity to answer the interrogatories before imposing severe sanctions for a failure to answer.”

Relator relies heavily upon the Supreme Court decision in Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483. This was a divorce case. The wife refused to answer written interrogatories regarding the present status of her previous marriage to another and similar questions put to her orally at the hearing on her motion for temporary allowances, on the ground that the answers might tend to incriminate her. The trial court apparently accepted her legal position in this regard as sound and notwithstanding her refusal to answer these pertinent inquiries, awarded her temporary allowances. The Supreme Court held that since divorce is an equitable proceeding, where a proponent is required to show “clean hands”, the wife must answer the questions, else she should be denied affirmative relief and her failure and refusal to answer would justify striking her pleadings. However, it should be noted that the appellate court did not strike her pleadings or refuse her judgment outright, but rather “to the end that no injustice may be done” reversed and remanded for further proceedings in accordance with the views expressed by the court. As we read the opinion it does not find that the trial court abused its discretion, but rather misinterpreted the law.

Graveman v. Huncker et al., 345 Mo. 1207, 139 S.W.2d 494, 499, was a suit to set aside deeds. We quote from the opinion :

“In the instant case plaintiff made no effort to have defendants Edwin and Louise compelled to answer questions propounded on their depositions or to have them punished for contempt for refusing to answer. He elected to stand on his supposed right to move to have their answers stricken at the trial. The court refused to strike the answers. At the trial they both testified fully and so far as we can see from the record without attempt at reservation or evasion. We are unable to see from the record before us that plaintiff was prejudiced by said defendants’ refusal to answer questions on the taking of their depositions. We do not mean to say that their conduct on that occasion is to be commended or that it is safe procedure. Had the trial court stricken the answers we are not saying we would condemn such action as an abuse of discretion. But the court did not do so. It had the witnesses before it. In circumstances such as those before us we think the trial court must be allowed some discretion, to be of course soundly and wisely exercised and subject to review. In the instant case we cannot say the court abused its discretion.”

The court expounded further as to the discretion resting with the trial court in such matters and said:

“Section 1730, supra, is not by its terms mandatory. It does not say ‘shall,’ it says the pleading ‘may’ be stricken. In Frankel v. Hudson, 271 Mo. 495, 506, 196 S.W. 1121, 1124, we said: ‘Refusal of a trial court to strike out the pleading of a party refusing to testify or give his deposition * * * is to be interfered with only in a case of a clear abuse of discretion. Appellate courts seldom hold such ruling erroneous.’ In Kaiser v. Gardiner, Mo.App., 211 S.W. 883, 884[5] it is said: ‘While it is true the discretion of the trial court must be exercised with justice and wisdom, as affected by the facts and circumstances affecting the matter in hand, and while such discretion is open to review by an appellate court, yet the party seeking to substitute the discretion of an appellate court for that of the trial court must present a strong and clear case.’ ”

In our case the defendants testified rather fully at the trial respecting the subject matter of the unanswered interrogatories although relator says it was prejudiced by not having time to investigate and check the correctness of some of the answers.

In State ex rel. Jones v. Reagan et al., Mo.App., 382 S.W.2d 426, 427, the trial court entered a default judgment against the defendant Mortuary for failure to answer interrogatories and its discretionary act in so doing was approved by the appellate court. Thé following excerpts from the opinion reveal the facts.

“ * * * on March 4, 1963, plaintiff served written interrogatories on defendant. Defendant failed to answer same within the allotted 'time and on April 10, plaintiff filed her motion to compel answers to the interrogatories. On April 19th, the motion was sustained and defendant was given ten additional days to answer, hut again failed to do so. On May 3rd, the court entered an order striking ■defendant’s pleadings and holding defendant in default for failure to answer the interrogatories and ordered default and inquiry against defendant.
“On May 15th, defendant filed answers to some of the interrogatories and objections to others, and on the same day, on oral motion of defendant, the trial court set aside the default and inquiry of May 3rd.
“The court further ordered defendant to answer interrogatories * * *, and to file an amended answer by May 17, 1963. Defendant failed or refused to answer said interrogatories by May 17, 1963, and on May 21st, plaintiff filed a motion asking the court to set aside its order of May 15th, which order set aside the default and inquiry previously granted. On May 22, 1963, defendant, by leave of court, filed an amended answer. On May 23, 1963, plaintiff’s motion to vacate and set aside the court’s order of May 15th, and to enter default and inquiry was sustained and the trial court set the date of June 6th for default and inquiry. Defendant’s attorney was given proper notice of all of the dates set for hearing of the matters listed above and of the actions of the trial court, but did not appear, and gave no reason for not appearing, and for not answering the interrogatories in question.
“ * * * defendant’s attorney * * * was given at least four opportunities to comply with the trial court’s orders directing him to answer interrogatories. Ten of the twenty interrogatories were never answered. After the trial court entered default, defendant’s attorney was notified that the matter would be heard on June 6th. This notice was given on May 23rd. Even then, defendant did not appear.
“If the trial court had no power to enter a default under these circumstances, then the rule has no purpose, and the answers to interrogatories could never be compelled. Whether or not defendant had an answer on file is not in point. Under the aggravated circumstances showing defendant’s utter disregard for various orders of court and notice of motions, the trial court exercised its discretionary power to enter judgment by default for defendant’s failure to answer interrogatories.”

In the Reagan case the circumstances were most aggravating. Defendant refused to answer and a default was entered. The default was set aside and the defendant was given at least four opportunities to answer. It refused on all occasions to answer and failed to show up for a hearing after having been duly notified. Under these conditions the trial court exercised its discretion and entered a default judgment. It is difficult to conceive of a case in which such a summary penalty would be more justified.

In our case relator did not call up his motion to invoke sanctions until the date of the trial which was more than one year after the motion was filed. When counsel for defendants told counsel for relator that he was having difficulty in securing the answers he was told to “do the best you can”. Aid of the court in enforcing compliance was not sought until the day of trial. And on the trial date, relator sought only the extreme sanctions of dismissing defendants’ pleadings and entering a default judgment against them. Unless the court was willing to grant this harsh penalty which actually would have sounded the death knell to defendants’ claims for any damages over and above the commissioners’ award, relator apparently chose to go to trial. At least no continuance was requested during which time the trial court’s usually effective powers of persuasion might have been invoked or at least sought in a further effort to secure compliance and answers to the interrogatories. The trial court presumably considered — (a) relator’s delay until the trial date in requesting action and aid of the court in securing compliance; (b) relator’s apparent decision to either secure extreme sanctions, coupled with summary and complete relief by entry of judgment in its behalf, or go to trial, and (c) whether relator was unduly prejudiced and injured by not securing the answers prior to the trial. In any event, the court was in a position to understand the situation, had the parties before it and saw at first hand the developments of these preliminaries. In the exercise of its discretion the court denied relator’s request for summary sanctions and summary judgment. In this field the court is clearly vested with wide discretion. We cannot say that in the instant case the court abused its discretion. Appellant has not presented any other assignment of error.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: DOUGLAS W. GREENE, Special Judge.

license: Public Domain

text:
    Darlene Mae KIRBY, Plaintiff-Appellant, v. Saundra Kay SEYMOUR, Defendant-Respondent.
    No. 24267.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      Newhart & Zahnd, Savannah, for appellant.
    Strop, Watkins, Roberts & Hale, St. Joseph, for respondent.
   DOUGLAS W. GREENE, Special Judge.

This suit for personal injuries arose out of a collision between automobiles driven by appellant and respondent, which occurred on January 11, 1963, in St. Joseph, Missouri, at about 8:30 A.M. The trial resulted in a verdict and judgment for defendant, and the plaintiff appeals. Appellant was driving north on St. Joseph Avenue at a rate of speed of five to ten miles per hour. The street was covered with ice and snow, and was slick. A bus, which was proceeding north in front of appellant, stopped for a passenger. Appellant either slowed or stopped. Respondent was also driving north on St. Joseph Avenue, and was behind appellant at least one, but not more than two car lengths. She was driving at a speed of between ten to fifteen miles per hour. When she saw appellant slowing or stopping respondent applied her brakes. Her car slid forward and the front end of her automobile struck the rear end of appellant’s automobile.

Appellant submitted her case to the jury on the “rear end collision” doctrine, which was justifiable under the facts above. Glowczwski v. Foster, Mo.App., 359 S.W.2d 406. Respondent offered Instruction No. 2, which alleged contributory negligence on the part of appellant for failure to give a timely warning of her intention to stop and Instruction No. 3. After describing the legal effect of mere skidding in a manner not criticized by either party, Instruction No. 3 then says: “You may consider the skidding, if any, of the defendant’s automobile along with other circumstances and conditions shown in evidence in determining the negligence, if any, of the defendant, Saundra Seymour, as submitted in other instructions. If you find and believe from the evidence that the skidding, if any, of the defendant’s automobile, as mentioned in evidence was occasioned solely by the icy and slippery condition of St. Joseph Avenue, if so, and that the defendant, Saundra Seymour, exercised the highest degree of care at all times mentioned in evidence, and was not negligent, if so, as defined in other instructions, then, even though you find that the skidding of the defendant’s automobile was the direct and proximate cause of the collision mentioned in evidence, and of the plaintiff’s damages, if any, nevertheless your finding and verdict must be for the defendant, Saundra Seymour”.

Appellant assigns only one error, namely the giving of Instruction No. 3 by the trial court. Appellant agrees that the law, as stated in Instruction No. 3 is correct. However, she labels this instruction as the affirmative converse type; and states that such an instruction needs evidence to support it, as the facts in said instruction, namely a skid occasioned solely by the icy and slippery condition of St. Joseph Avenue were submitted to disprove, or controvert one or more of the essential elements of appellant’s case, citing Rose v. St. Louis Public Service Company, Mo.Sup., 205 S.W.2d 559, and Dill v. Dallas County Farmers Exchange No. 177, Mo.Sup., 267 S.W.2d 677. Appellant further contends that there was no factual support in the evidence for such submission, as respondent’s own testimony indicates that her applying of the brakes precipitated the skid, and that therefore, the icy slippery condition of the street could not have been the sole cause of the collision, which made the instruction misleading and prejudicially erroneous.

We agree that where a defendant submits facts in an instruction, the existence of which would disprove, or controvert one or more of the essential factual elements of plaintiff’s case, such factual submission must be supported by evidence, and is sometimes called an “affirmative converse” instruction. Liebow v. Jones, Mo. Sup., 303 S.W.2d 660.

However, that situation does not exist in this case. Here, respondent was not attempting to disprove, or controvert, any essential factual element of appellant’s case. She agrees that her automobile struck the rear end of appellant’s automobile at a time when appellant’s vehicle was in its proper lane of traffic.

Respondent had a right to show, and to submit to the jury, that the collision was not caused by any negligence on her part. Boresow v. Manzella, Mo.Supp., 330 S.W.2d 827, Baccalo v. Nicolosi, Mo.Sup., 332 S.W.2d 854, 856.

Instruction No. 3 is not a converse instruction, affirmative or otherwise. It required the jury to specifically find, even if they believed that the skidding of the defendant’s automobile was the proximate cause of the collision, that such skidding was caused solely by factors beyond the defendant’s control and that defendant was not negligent. If the jury followed Instruction No. 3, and made the finding required by it, then respondent was entitled to a verdict.

The instruction did not remove from the jury’s consideration any act of respondent which could be considered negligence under the law and the evidence. It is true, as appellant contends, that the applying of her brakes by respondent precipitated the skid. So did the forward movement of her car at a speed of ten to fifteen miles per hour. However, neither of these facts constitute negligent conduct, as a matter of law, even when coupled with the fact that respondent was trailing appellant by one to two car lengths on an icy and slippery street. All of these matters were before the jury, who resolved the issues for respondent and against appellant.

The liability issues in the case were fairly presented to the jury by appellant’s verdict directing instruction, which submitted the “rear end collision” doctrine, by Instruction No. 2, which submitted contributory negligence of appellant for failure to give any timely warning of her intention to stop (on which instruction the jury might have conceivably decided this case) and Instruction No. 3, which we have previously discussed. We find no error on the part of the trial court in the giving of respondent’s Instruction No. 3.

The judgment is affirmed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not sitting.


text:
    Icie Nadyne KIMBLE, Plaintiff-Appellant, v. Forrest Lavern KIMBLE, Defendant-Respondent.
    No. 24399.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for appellant.
    Len L. Balke, Kansas City, for respondent.
   MAUGHMER, Commissioner.

By this appeal we are required to review a judgment order under which the custody of a girl twelve years old was transferred! from the mother to the father.

On September 15, 1959, plaintiff Icie Nadyne Kimble, filed in the Circuit Court of Jackson County, Missouri, her petition for divorce from the defendant Forrest Lavern Kimble. At that time four children had been born of the marriage, namely, Vickie Nadyne, then age seven years; Charisse Lynn, age five years; Gerald Lavern, age two years, and Tommie LeAnn, age eight months. The defendant was an employee of the Bendix Corporation, with a salary of $6,000 per annum, Mrs. Kimble, the mother of these four children — all of tender age — was almost of necessity, a housewife and mother. To this divorce action defendant filed his written entry of appearance, defaulted, and on October 22, 1959, a decree of divorce to plaintiff was entered. By that decree Mrs. Kimble was granted the “care, custody and control” of the four minor children, $45 per week for their support and maintenance, and $1.00 per month alimony. Shortly thereafter, a stipulation for termination of alimony was filed and thus the alimony issue was eliminated.

On June 3, 1965 — more than 67 months after the divorce — defendant filed his motion to modify. Therein he alleged a change in conditions and asked that the custody of all four children be transferred to him. Plaintiff countered with a request for an increase to $75 per week in the child support allowance. Testimony was heard on June 25, 1965. We shall summarize the events, changes and happenings which had occurred with respect to this Kimble family of six persons during the preceding five and one-half years as shown by the evidence.

Mr. Kimble had continued to work for Bendix. His earnings increased from $6,000 to $10,000 per year. For a period of time he lived and worked in Chicago, but at the time of the hearing he was again residing in the Kansas City area. He had remarried, was the father of one child by his. second marriage, with another expected within thirty days. He had purchased and was living in a nice four-bedroom house.

There had been changes in the life of Mrs. Kimble. She continued to live in the Kansas City area. For several years she had been, and at the time of the hearing was, employed as a real estate saleswoman on a commission basis, by Roark Realty, Inc. She haS enjoyed some success in this vocation as evidenced by the fact that in 1964, she earned $6400. She has bought a three-bedroom residence property, where the family resides, on contract with payments of $104 monthly. Her busiest business periods are on week-ends. She is required to be away from home showing properties, checking records and closing sales. At the time of the modification order entered herein she had in her employ a full time combination housekeeper, maid and baby sitter, who lived in the home and whom she paid $40 per week, or almost all she received from the children’s father for child support. Previously, she had used part-time and “live-away” attendants for the children. At times responsibility for attending to the needs of the three smaller children fell upon Vickie, the eldest child.

Although complete custody under the divorce decree was vested with the mother, the children through the years were permitted to and on occasions did visit their father and also their paternal grandparents. Quite frequently they spent week-ends in their father’s home, although recently some difficulties arose between the parents and that practice stopped. Once they visited defendant in his home near Chicago for eleven days.

The paternal grandparents live in the town of Adrian, Missouri. They have a large house and the children visited them during the summers of most of the years, sometimes staying for a month.

The two eldest children testified at the modification hearing. Vickie, then twelve years old, described spending week-ends with her father and visiting him in Chicago. She spoke of going to Adrian to the home of her grandparents. She said she was well treated by her stepmother, and liked to visit her grandparents. She said the children were frequently left alone in the evenings; that she prepared them for school at times; that most times her mother prepared supper, but not always. She said a maid was in the house most of the times when her mother was gone. She was “upset” when left alone with the children. She stated that she was unhappy and thought she would be happier with her father and his second family. Replying to questions, Vickie said she had no complaints as to her mother’s treatment; that she was well fed and received medical attention. She said she “loved” her father and “sort of loved” her mother. She got along well with her little sisters and her brother, and she did not want to leave them.

Charisse, then eleven years old, was lonesome sometimes. She liked her mother, her father and her grandparents. She had no complaints as to the mother’s treatment.

The paternal grandparents, the present Mrs. Kimble and the defendant all testified. They all are apparently good people, have suitable homes and treat the children well. There was a suggestion that plaintiff improperly and too frequently associated with her employer, Mr. Roark, but the evidence did not bear out the accusation to any defamatory degree.

After hearing the evidence, the court modified the original decree in the following particulars:

(1) Care, custody and control of Vickie, the eldest child, was changed from the mother to the father “with reasonable visitation” rights.

(2) Custody of the other three children was continued with the mother except as to week-ends “from Friday until 8:00 p. m. Sunday” when custody was placed with the father.

(3) The child support allowance of $45 per week was left unchanged. Plaintiff’s attorney was allowed a $150 fee and no order was made regarding visiting the grandparents during the summer.

The mother has appealed from that part of the order transferring the custody of Vickie from the mother to the father.

In reviewing a divorce case or modification order changing child custody it is our duty on appeal to review all of the evidence and reach our own conclusions. We give due deference to the findings of the trial judge, but we render such judgment as in our opinion the evidence warrants. Hamilton v. Atwill, Mo.App., 130 S.W.2d 640, 649; Elliston v. Elliston, Mo.App., 215 S.W.2d 63, 69; Rusche v. Rusche, Mo.App., 200 S.W.2d 577, 580. Where credibility of the witnesses is an issue and a vital point, we recognize the trial court’s more advantageous position from which to judge credibility. Crowley v. Crowley, Mo. App., 360 S.W.2d 293, 297. Always the movant (here the defendant father) has the burden to show first, a change in conditions since entry of the divorce decree and, second, that such changes compel or at least make advisable, for the welfare of the children, a change of custody. Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189; Cherry v. Cherry, Mo.App., 272 S.W.2d 700, 703; Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 865.

A reading of the modification order here alerts us at once to several danger signals:

(1) The mother’s home, where the four children have lived for nearly six years, is ruled not the proper home for one child, but a proper home for the other three.

(2) The father’s home is determined to be the best and necessary home for one child but not for the other three.

(3) A family of four children, who have been reared together for almost six years after the divorce, are separated and divided into groups of one and three.

As we read and consider the evidence and the trial court’s statement announcing the transfer of Vickie’s custody, we are forced to conclude that it did so, almost, if not entirely, because of the rather uncertainly expressed desire of Vickie, a twelve year old child. There is no substantial proof that the mother misbehaved; that her home was not a good home — or inadequate — or that the children were mistreated or poorly cared for. It affirmatively appears they were doing well in school and were being furnished with life’s essential necessities. The court’s action in leaving three of the children with the mother makes it appear implicit in the decision that it did not believe the mother’s home was an improper home.

We have here a comparatively young couple who, in 1959, were divorced. They had brought four children into the world then ranging in ages from eight months to seven years. The father said he asked the mother to get a divorce. He entered his written appearance, defaulted, and did not contest the divorce action. He persuaded his wife to waive alimony. He did not raise his voice in protest when she was awarded custody and accepted responsibility for the actual rearing of their four children. He paid $45 per week for their support in 1959. The dollar is worth less now than then, and as the children grow up their dollar requirements are greater, but the support allowance has remained stationary. Mrs. Kim-ble, in an effort to surmount these increased financial burdens, secured employment as a real estate saleswoman and in 1964, earned $6400 in commissions. She has bought a residence property as a home for herself and the children and is paying for it at the rate of $104 per month. She could not do this and rear the children on the child support payments received from the children’s father.

In Hamilton v. Atwill, supra, the mother, after the divorce decree, had prepared herself to become a school teacher and was actually employed in that profession at the time the modification hearing was held. At page 650 of the opinion this court said:

“The showing of the record we conclude, is to the effect that plaintiff * * * had, by laudable effort, better equipped herself to look after the welfare of her minor children than when the original order was made”.

Mrs. Kimble has not remarried. Manifestly, she cannot work as she does and be with the children all of the time. The father works too. He could not be with them all the time either. Mr. Kimble has married again and has now fathered two more children. We believe Mrs. Kimble should be commended for the way in which she has assumed, accepted and discharged her parental responsibilities. Has Mr. Kimble done more? We think not, although we do not criticize his actions. The fact remains, however, that for almost six years the mother has cared for and reared these children. During those six years the father uttered no protest and sought no change in custody.

It is the law and also reason that child custody shall not be changed for trivial reasons and the party seeking such change carries the burden of showing a change is necessary for the welfare and best interests of the children. We believe the evidence shows that the mother now maintains and has always maintained a good, suitable and proper home for these children. It is apparent that the trial court so found, else the other three children would not have been left with the mother. We do not believe that the decision as to child custody can safely be left to the choice of a twelve year old girl and be changed from time to time in conformity with her temporary desires or whims. We do not believe these four children should be separated for this reason alone or for any other reason unless it be a grave one. Besides, this girl, Vickie, says she likes her mother, says she was well fed, well housed and received good care. She was doing well in school and was not really, as we understand the evidence, in need of a change. The court suggested that Vickie was a “disturbed child”, was lonesome and felt neglected, although it was questionable if such feeling was justified. We cannot conclude from the testimony she was any more “disturbed” than is the average adolescent.

The writer of this opinion is strongly inclined toward giving due deference to the finding of the trial chancellor and prefers to approve his orders. But in the case before us the evidence is not vitally disputed. The ultimate decision does not rest upon the credibility of the witnesses. In awarding custody of minor children the over-all welfare of the children is paramount Custody should not be granted as a reward for one parent and it should not be withheld as a punishment to one parent. It is unwise to transfer custody frequently and not at all unless it is demonstrated by a preponderance of the evidence that the continued well-being of the child requires a change.

We have before us a family which originally consisted of the father, the mother and four children. Six years ago the parents were divorced. During these six years the father has been (of necessity) a part-time father. During these six years, inside the domicile, the de facto family has consisted of the mother and the four children. The three little girls and the little boy have so far grown up together. This is something that each will cherish and value always — more and more as the years pass. Is it likely that Vickie and the other children will be better off if Vickie from now on lives with her father, her step-mother, her half sisters and brothers, and is separated from her own mother, brother and sisters?

From the evidence adduced we are unable to conclude:

(1) That the mother has not provided a good and salutary home.

(2) That the mother is not a suitable person to continue to have custody of all four of the children.

(3) That the movant has sustained the burden of showing it would be for the best interests of the four children, or of any one of them, for custody to be taken from the mother and placed with the mov-ant.

It is to the credit of these parties that the children have been permitted to visit their father on week-ends and the grandparents during the summer vacation periods. It is possibly too much to expect these parents to carry out the details of such visitations amicably at all times without court direction. In Lewis v. Lewis, supra, 301 S.W.2d page 863, the court commented:

“Where the father and mother are proper persons, both are not only entitled to reasonable access to their children, but the best interests of the children will in fact be served by an arrangement whereby they may associate with both parents”.

We are not informed as to the age and present health of the grandparents, nor do we know if the children, as they grow older, will still enjoy visiting them during the summers. If they do, we suggest that they be permitted to do so.

No appeal is before us as to those portions of the modification order allowing plaintiff an attorney fee of $150, and continuing the allowance of $45 per week for support of the children. That part of the order transferring the custody of Vickie Nadyne Kimble from plaintiff to defendant is reversed and the court is directed to enter a judgment, decreeing that her custody be continued with the mother, Icie Nadyne Kimble. The court is further directed to order that defendant father have visitation custody of all four children from approximately 5:00 p. m. on each Friday until 8:00 p. m. on the ensuing Sunday of each week.

The judgment is affirmed in part and reversed in part. The cause is remanded with directions to enter a new judgment order in conformity with this opinion.

SPERRY, C., concurs.

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

All concur.


author: SPERRY, Commissioner.

text:
    Layton E. UNDERWOOD, Jr., Plaintiff-Appellant, v. Ruth Marie UNDERWOOD, Defendant-Respondent.
    No. 24343.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      John R. Moore, Miller & Moore, Platte City, for appellant.
    Robert P. C. Wilson, III, Platte City, for respondent.
   SPERRY, Commissioner.

The real issue in this case is the legitimacy of a child born to defendant during the existence of the legal marriage between her and plaintiff. This appeal is from that portion of a decree of divorce wherein the court found and decreed that Johana Rae Ella Underwood, a child born to defendant, was also the child of plaintiff, and awarding defendant a judgment against plaintiff in the sum of $5.00 per week for support and maintenance of the child.

Our review will be both upon the law and the evidence, as in suits of an equitable nature. Boudinier v. Boudinier, 240 Mo.App. 278, 203 S.W.2d 89, 97 (K.C.App.). It follows that we will determine the sufficiency of the evidence to support the judgment. We will make our own finding of facts and conclusions, but where such findings rest upon contradictory oral testimony we will, ordinarily, defer to the judgment of the trial court, unless it is overwhelmingly contrary to the evidence.

This divorce suit was filed by plaintiff September 10, 1963. Plaintiff’s testimony was to the effect that he and defendant were married May 29, 1961; that they finally separated June 29, 1962; that there was born of the marriage a girl named Shawndel Lyn, January 30, 1962; that, after separation, the parties never again lived together or cohabitated as man and wife; that defendant visited him at his apartment, occupied by plaintiff alone, several times in July and August, of 1962; that, in September, 1962, defendant telephoned him from Waynesville, Missouri, and requested that he bring her to Kansas City; that he went after her and, eventually, found her in company with a soldier; that she was intoxicated; that he took her to his own home in Platte County, Missouri; that, later, he took her to Kansas City. His testimony is replete with instances when, he stated, that he found her with other men, at times in bed with a man, at various hotels in Kansas City. He admitted that, after one or more such incidents, he went back and lived with her, in August of 1962; that she had been treated for a venereal disease. At one time, in his testimony, he stated that he cohabitated and resided with her in June of 1963, but he later claimed that he had made a mistake as to the year. His testimony indicates a vagueness as to various important dates that have to do with his relations with defendant.

It was established that defendant gave birth to Johana on January 6, 1964. Plaintiff contends that he never had sexual intercourse with defendant after their separation, June 29, 1962, and that Johana is not his child. It is not in dispute that defendant was pregnant a third time, in October of 1964, and there is no contention made that that child was sired by plaintiff. There is, on the contrary, testimony to the effect that defendant stated to a relative that plaintiff was not the father and named another as the sire of the then unborn child. There was also testimony to the effect that defendant stated to various witnesses that, at some time during the period herein covered, she had contracted a venereal disease, but there is no suggestion as to the source of the contagion. Plaintiff admitted that he had been convicted of the crime of theft and was sentenced to two years in prison, with probation.

In the trial of this case defendant was not present personally and did not testify. However, she was represented by counsel who caused to be introduced in evidence testimony which defendant had previously given in this case, in connection with a motion filed by her. At that time she testified to the effect that she and plaintiff separated in June, 1962; that Shawndel was born to her prior to the separation; that, after the June 1962 separation, she and plaintiff saw each other as husband and wife a number of times; that she came to plaintiffs apartment several times and that they slept together and had sexual intercourse on such occasions; that three such visits occurred in March, 1963; that she was, at the time she testified, pregnant by plaintiff; that birth was expected December 22, 1963.

Defendant’s aunt, in whose home defendant spent several years when she was a child, testified to the effect that defendant visited her, at her home, in October, 1964; that she was then pregnant; that she named, as the father, a man other than plaintiff; and that the truth was not in defendant.

In earlier times a child born during lawful wedlock was presumed to be the child of the husband unless the husband was beyond the four seas at all times during which it could reasonably be said that conception took place. It was said that that was one of the strongest presumptions known to the law. It was said that, unless the husband was shown to be “beyond the seas”, as stated, the presumption was conclusive. In the light of modern travel and modern scientific developments, such a rule could no longer be logically maintained.

The question was well considered by the entire membership of this court, of which the author of this opinion was one, in Boudinier v. Boudinier, 203 S.W.2d 89. At page 97 of the opinion we approved the declaration that the strength of the presumption is recognized and it will not fail unless common sense and reason are outraged by a holding that it abides — the presumption does not consecrate as truth the extravagantly improbable. We declared that the modern and prevailing rule is that the presumption may be rebutted and overthrown by proof of facts to the contrary. Any pertinent evidence admissible under the rules of evidence, tending to rebut the presumption, may be received. Our ruling in the Boudinier case is cited with approval in F.- v. F.-, 333 S.W.2d 320, 326 (Mo.App.).

Our view of the evidence, and the conclusions to be drawn therefrom are the same as those of the trial judge. The evidence tending to rebut the presumption of legitimacy rests solely upon the unsupported testimony of plaintiff. He stated that he had not had sexual intercourse with defendant since June of 1962. He also stated positively, and repeated it upon further questioning by his attorney, that he had intercourse with her in June, 1963. He told of defendant’s immoral conduct, naming two men and mentioning others with whom, he stated, she slept and lived. Knowing of that conduct, he admitted having lived with her thereafter. Defendant testified to the effect that she visited him, in his apartment, three times in March, of 1963, and slept with him. In view of the entire record, and of the personal and immoral history of both parties, we can only say that the evidence is not sufficient to rebut the presumption of legitimacy.

The judgment is affirmed.

MAUGHMER, C, concurs.

PER CURIAM:

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

All concur.


author: RUARK, Judge.

text:
    Sybil BOUCHILLON, Plaintiff-Respondent, v. Walter WEISBROD, Jr., Administrator of the Estate of Clifford J. Chunn, Jr., Deceased, Defendant-Appellant.
    No. 8450.
    Springfield Court of Appeals. Missouri.
    Feb. 7, 1966.
    H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for defendant-appellant.
    Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-respondent.
   RUARK, Judge.

Plaintiff secured verdict and judgment for seventy-five hundred dollars on account of injuries received in an automobile collision, and defendant has appealed. Plaintiff was riding (asleep) in a Rambler then being driven by her seventeen-year-old son in the afternoon of a clear August day. The Rambler was going north on Highway 67, which was concrete, twenty-two feet wide, with centerline and broad shoulders. A short distance ahead was an intersection with Highway 142, which ran in an east-west direction. Clifford J. Chunn, Jr., was driving a Corvair south along Highway 67 approaching the intersection from the north. One George Washington was approaching the intersection on Highway 142 from the east. According to the testimony of James Bouchillon, driver of the Rambler in which plaintiff was riding, the George Washington Ghevrolet stopped at the intersection and then pulled out into and was making a left turn onto the left (southbound) lane of Highway 67. When the Chevrolet started into the intersection, the Chunn Corvair was approaching from the north at a speed of eighty to ninety miles per hour; it entered the intersection without diminishing its speed and was “right on the Chevrolet.” Chunn whipped the front end of his Corvair around the Chevrolet on the right, but in so doing sideswiped it (the left “back” side of the Corvair striking the right front of the Chevrolet). The impact threw the Corvair partly off the pavement and caused it to go into a slow spin so that it skidded across the highway and into the northbound lane and into the front end of the plaintiffs approaching Rambler some one hundred thirty-eight feet south of the intersection. Chunn, the driver of the Corvair, was killed. The record does not show what happened to George Washington, but plaintiff’s son, James Bouchillon, was the only eyewitness who testified.

This case was tried on December 30, 1964, shortly prior to MAI. Appellant does not question that plaintiff made a submis-sible case. His sole attack is on plaintiff’s verdict-directing Instruction No. 1, which told the jury in substance that if they found plaintiff was riding in the Rambler as a passenger going north on the east lane of Highway 67 near the intersection of Highway 142, that deceased Chunn drove his Corvair south on 67, that George Washington drove his Chevrolet west on 142, stopped about ten feet west of the highway and then turned south (left) into the west lane of the highway at a time when the other automobiles were approaching, and that thereafter the deceased Chunn “failed to exercise the highest degree of care and drove into said intersection at a speed of 80 miles per hour or more and failed to have his Corvair automobile under control and failed to slacken the speed of said Corvair automobile and thereby caused said Corvair automobile to collide with the Chevrolet automobile in the west lane of highway 67, if so, and thereby caused said Corvair automobile to thereafter skid from said west lane of said highway 67 across the center of the said highway, and into the East lane of said highway 67, at a time when the Rambler automobile was passing said Cor-vair automobile in said east lane, if you so find, and if you further find that such acts, if any on the part of the deceased, Clifford J. Chunn, Jr., constituted negligence, if so, and that as a direct and proximate result of such negligence, if any, the said Corvair automobile was thereby caused to collide with the Chevrolet automobile and the Rambler automobile, if you so find, and the plaintiff was thereby injured,” then the verdict should be for the plaintiff even though the jury might find that the negligence of George Washington contributed to cause the collision.

The complaint is that the instruction submits failure of control as a charge of general negligence along with items of specific negligence in regard to speed.

Miles v. Gaddy, Mo., 357 S.W.2d 897, indeed holds that a submission of failure of control is a general submission and, save in res ipsa loquitur cases, is confusing and gives the jury a roving commission. At 900, the court there said, “As applied to the operation of a motor vehicle, loss or lack of control is usually the result of some antecedent act or omission which is the essential fact that should be hypothesized in the verdict-directing instruction.” See also Treon v. City of Hamilton, Mo., 363 S.W.2d 704, 709; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Myers v. Buchanan, Mo., 333 S.W.2d 18; McCarthy v. Sebben, Mo., 331 S.W.2d 601, 606. While we think the Gaddy case can be distinguished factually (the question there was what caused the truck to swerve out of its lane, whether because of negligence or sudden mechanical failure), nevertheless we cannot escape the general pronouncement made in that case. Gaddy also holds that the conjunctive submission did not render the error harmless because the submission of failure to control as a hypothesis of negligence is “not a correct statement of either statutory or case law and its inclusion renders the instruction prejudicially erroneous.” See also Chas. F. Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522; Donaldson v. Manzella, Mo., 338 S.W.2d 78; Glowacki v. Holste, Mo., 295 S.W.2d 135.

It might be difficult to see how the jury could have been misled, but the speed of eighty miles per hour, the lack of control, and the failure to reduce speed are all encompassed within a statement of acts and omissions occurring before the collision with the first automobile: “and thereby caused said Corvair automobile to collide with the Chevrolet automobile”; after this statement the instruction hypothesizes the skidding across the road into the Rambler; so the specifications applied to the cause of the first collision and were not a factual relation of events after the first collision as we found in Cluck v. Snodgrass, Mo.App., 381 S.W.2d 544.

As to the conjunctive submission, the jury of course had the right to believe or disbelieve all or part of the testimony of the only eyewitness in regard to speed and circumstances which required slackening of speed. In fact, there was evidence that this witness had made out-of-court statements which, if the jury chose to believe it, cast doubt upon both the speed of the Corvair and the movements of the Chevrolet immediately prior to the first collision. Yet the instruction, continuing, stated, “if you further find that such acts, if any, on the part of the deceased, Clifford J. Chunn, Jr., constituted negligence * * Thus the jury might not have believed the deceased was negligent in respect to speed, and that excessive speed was not the proximate cause of the accident and injury, but might have believed that in some manner he was not in control of his car prior to the first collision and caused the wreck, thus exercising the roving commission given by the general submission. It is, at least, confusing.

The defendant in his sole cause instruction hypothesized the fact that George Washington suddenly and without warning drove out into the intersection in front of the Chunn automobile so as to create an immediate hazard, that those two vehicles collided and because of such collision the Chunn automobile was caused to turn sideways and slid over onto the northbound lane into collision with the Rambler, “and if you further find that the deceased Clifford J. Chunn, Jr., was at all times exercising the highest degree of care and was not guilty of negligence as set forth in other instructions herewith given you jje ¡fc ff

We consider such instruction, not with regard to its legal or factual sufficiency, but solely to determine whether, by the use of the words italicized, the defendant “waived” or “adopted” plaintiff’s submission.

We would have grave doubt as to defendant’s position in this respect under pronouncements in Ferguson v. Betterton, 364 Mo. 997, 270 S.W.2d 756, and the decisions subsequently following it (including that of this court in Heuer v. Ulmer, Mo.App., 281 S.W.2d 320). However, in Myers v. Buchanan, supra, Mo., 333 S.W.2d 18, Ferguson was flatly overruled, and the rule of “invited error” was limited to those cases where the complaining party induced the court (or the opposite party) to make the submission later attacked. Such is now, we think, the logically correct rule. See Pasternak v. Mashak, Mo.App., 392 S.W.2d 631; Shaffer v. Sunray Mid-Continent Oil Company, Mo., 336 S.W.2d 102. The defendant objected to the instruction and offered only “sole cause.” We cannot say that he induced the error even though he may not have been vociferous in his objections.

We have no recourse except to reverse and remand. So ordered.

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

      . MAT No. 1.02 now forbids conjunctive submission of multiple theories in the conjunctive.


author: STONE, Presiding Judge.

text:
    Doris REEVES, Plaintiff-Respondent, v. Arthur REEVES, Defendant-Appellant.
    No. 8475.
    Springfield Court of Appeals. Missouri.
    Feb. 7, 1966.

      Wangelin & Friedewald, Poplar Bluff, for defendant-appellant.
    Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-respondent.
   STONE, Presiding Judge.

On November 25, 1964, almost eighteen years after her marriage to defendant Arthur Reeves on December 25, 1946, plaintiff Doris Reeves instituted this action for divorce by the filing of her petition in which she sought dissolution of the marital relationship on the ground of indignities [V.A. M.S. § 452.010], asked for the custody of Patricia Ann, then fifteen years of age, one of the two children born of the marriage, and prayed for alimony, child support, attorneys’ fees and costs. On December 15, 1964, defendant filed his answer and cross-bill in which he sought a decree of divorce for alleged indignities and prayed for custody of both children, namely, Patricia Ann and Michael Eric, then seventeen years of age. Following trial on February 9 and 16, 1965, the court entered a decree dismissing defendant’s cross-bill, granting a divorce to plaintiff on her petition, awarding custody of Patricia Ann to plaintiff and custody of Michael Eric to defendant (with each parent to have the right of reasonable visitation with the child whose custody was awarded to the other parent), and adjudging that defendant should pay to plaintiff the sum of $2,500 as alimony in gross, the additional sum of $1 on the first day of March each year as permanent alimony, and $75 per month for the support of Patricia Ann. On this appeal by defendant, he complains that plaintiff’s petition should have been dismissed and he should have been granted a divorce on his cross-bill and that, in any event, the trial court erred in entering judgment against him for $2,500 as alimony in gross.

Defendant came to Poplar Bluff in September 1961 as associate sales manager in that area for a life insurance company, and he moved his family from Flat River to Poplar Bluff in February 1962. The transcript on appeal discloses nothing pertaining to the prior course of the marital venture, excepting only that plaintiff and defendant had acquired title, as tenants by the entirety, to two properties in Flat River, namely, (1) their six-room home and (2) an adjoining property to which plaintiff referred as a “small brick building” worth $1,500 and defendant’s attorney referred as “a house and lot” not valued in evidence but said to have been subject to a deed of trust securing payment of approximately $230.

Within a few weeks after the family came to Poplar Bluff, to wit, about March 15, 1962, plaintiff instituted an action for divorce (hereinafter referred to as the first divorce action) in the Circuit Court of Butler County on grounds here neither revealed nor important. During April or the first part of May 1962 and while the first divorce action was pending, defendant discovered that plaintiff was having “an affair” with one L-, a resident of St. Louis, with whom (as plaintiff readily admitted upon trial of the instant case) she had had adulterous relations on two occasions at a Poplar Bluff motel. When accused of infidelity by her husband, plaintiff made full confession to him and, upon his insistence, like confession to her minister at an appointment made by her husband. On May 14, 1962, defendant “helped” plaintiff to compose, and typed for her a letter to her attorney requesting him to dismiss the first divorce action, which was done. Thereafter, plaintiff and defendant resumed cohabitation and lived together as husband and wife for approximately two and one-half years until their separation about November 14, 1964, shortly prior to institution of the case at bar.

From plaintiff’s testimony, it appears that the primary factors contributing to marital friction (subsequent to the reconciliation in May 1962) were defendant’s unexplained evenings away from home, his late hours, and his habitual-beer drinking. As plaintiff put it, “Art likes his good times without me, so he stays out late at night and comes in when he pleases.” When asked whether defendant told her “where he went and what he did and why he was out late,” plaintiff said that “sometimes he would and sometimes he didn’t, but it wasn’t any of my business.” Marital discord mounted to a climax and the parties came to a parting of the ways on the Monday before defendant “moved out” on November 14, 1964. Defendant had gone bowling that evening as he had “so many times in the last three years.” In a telephone call to plaintiff, he had told her that “I am going out and have some beer tonight and I don’t want you to say anything when I come in, I intend to come in when I get good and ready”; and, when she asked where he was going, he named an establishment which, as plaintiff ascertained, closed at 1:30 A.M. When defendant came home at 2:45 A.M. “drinking as usual,” he offered the explanation that “he had drank (sic) fourteen bottles of beer” and had “passed out” in his automobile after the establishment closed. In the ensuing argument, plaintiff expressed her disbelief of defendant’s explanation, told him that “we can’t get along this way,” and invited him to leave. He did so on November 14.

Although avoiding any charge that defendant came home unable “to navigate under his own power” (to borrow the words of his attorney), plaintiff asserted that her husband had made “a practice of coming home” after he had been drinking (as he had done on the final Monday night) “four or five times a week at the last and ... in the last three years about two or three times a week . anywhere from midnight until three in the morning.” Plaintiff did not profess any knowledge as to whether defendant had been involved with other women — “I have never followed him.” But, as plaintiff put it, “Art told me he didn’t love me and he didn’t want me and if we continued to live together it would be as he desired to do, and I might as well keep my mouth shut about it.”

Our courts long ago recognized the impossibility of formulating any all-encompassing rule as to what will justify a decree of divorce for alleged indignities and confirmed the necessity of determining each case on its own particular facts and circumstances; but, as a guide in cases of this character, it is said that indignities warranting the granting of a divorce ordinarily must amount to a continuous course of conduct by one spouse constituting a species of mental cruelty, connoting settled hatred and a plain manifestation of alienation and estrangement, and rendering the condition of the other spouse intolerable through acts of such character and frequency as to be subversive of the family relationship. We have no doubt but that plaintiff’s testimony, which was accepted by the trial court, showed such indignities by defendant and established plaintiff’s status as that of the injured party.

However, she would not have been entitled to a decree of divorce unless the trial court reasonably could have found (as he did) that she also was the innocent party. In our review of the evidence bearing upon this finding, we remain mindful that the requirement of innocence did not contemplate proof of such exemplary deportment or angelic perfection as to have excluded all misconduct but simply a showing that, in the circumstances of the case, plaintiff had not been guilty of such conduct as would have entitled defendant to a divorce.

We turn to a consideration of the specific conduct on the part of plaintiff which defendant here points out in support of his contention that he should have been granted a divorce on his cross-bill. One indignity pleaded therein was that “plaintiff has threatened the life of the defendant.” The evidence pertaining to this allegation follows. When asked on cross-examination whether she had told defendant “shortly before” November 14, 1964, that “you were going to shoot off a certain part of his body if you didn’t get a divorce,” plaintiff answered: “When he came in drunk ... I said, Art, I am getting so tired of this I can’t stand it. I had spent in September four days in the hospital up here for depression mostly, and I told him I couldn’t stand it any longer, that I could kill him for what he was doing to me. I didn’t say any portion of his body.” In response to a question by his counsel directed to the same incident, defendant stated: “She said that if the judge didn’t give her what she asked for she would.” There was no suggestion that plaintiff’s cry of anguish and despair was accompanied or followed by any move to inflict harm or injury upon defendant. Cf. Culp v. Culp, Mo.App., 164 S.W.2d 623, 626(4). If plaintiff’s testimony was believed, defendant was in no position to rely on this incident, for it was within the category concerning which our appellate courts have observed in numerous cases that one spouse can be guilty of acts which explain and afford justification for an outburst of ill-considered conduct on the part of the other or, otherwise put, that one spouse will not be heard to complain of acts into which he has goaded the other. And, within this same category was plaintiff’s conduct (characterized by defendant as an indignity against him) on the Monday night preceding November 14, 1964.

The only other indignities pleaded in defendant’s cross-bill were plaintiff’s institution of the first divorce action in March 1962 and her consorting with L-prior to dismissal of that action in May 1962. Defendant admitted upon trial that, after he had discovered plaintiff’s infidelity, she had made full confession thereof to him and, upon his insistence, like confession to her minister, that he (defendant) thereafter had “helped” plaintiff to compose, and had typed for her, a letter to her attorney requesting him to dismiss the first divorce action, and that, upon his (defendant’s) purpose and intention “to forgive her of everything ... to the best of my ability,” the parties had become reconciled and had lived together as man and wife for two and one-half years before they separated about November 14, 1964. All of this worked (so plaintiff insists) a condonation or “ ‘a blotting out’ ” [Ratcliff v. Ratcliff, 221 Mo.App. 944, 949, 288 S.W. 794, 796] of her prior adulterous conduct. We observe parenthetically that nothing in the record suggests that plaintiff improperly associated with any man after she and defendant were reconciled in May 1962.

In Weber v. Weber, 195 Mo.App. 126, 189 S.W. 577, approved and commended by the Supreme Court as a “well-considered case” [Arnold v. Arnold, Mo. (banc), 222 S.W. 996, 999], distinguished predecessors on this court defined condonation as “a forgiveness and pardon after full knowledge of past wrong, fault, or deficiency on condition, express or implied, that same will not be repeated” and declared that “cohabitation offers strong evidence of such pardon and forgiveness of past conjugal offenses, increasing in probative force with the fullness of knowledge of the offense committed and the length of time continued,” that “[i]n most cases where the cohabitation is long continued, it will be taken as conclusive evidence,” and that this is particularly true where the conjugal offense has been adultery. 195 Mo.App. at 129-130, 189 S.W. at 578(1-3). Others have defined condonation in like terms and have made similar statements as to the effect of cohabitation with knowledge of prior adultery.

Instant defendant does not, and could not well, deny his condonation of plaintiff’s prior adulterous conduct by his reconciliation and extended period of cohabitation with her after having obtained full knowledge of her activities. But, relying upon the holdings that condoned infidelity may be revived by a subsequent course of cruel treatment of the forgiving spouse by the one forgiven, defendant contends that “condonation is not available to plaintiff” because (so he avers), after the reconciliation, “she treated him with a continual course of abuse clearly amounting to indignities” for which he should have been granted a decree of divorce.

In addition to the hereinbefore-discussed incidents pleaded in his cross-bill as alleged indignities, defendant also calls our attention to certain unpleaded matters characterized by his counsel as demonstrating plaintiff’s “continual course of abuse clearly amounting to indignities.” The first such matter, primarily emphasized in defendant’s brief, involved the Corning time savings account and developed in the following manner. As a predicate for the prayer for monetary allowances, plaintiff alleged in her petition that she was “wholly destitute, without funds with which to support herself or her minor child [Patricia Ann], or to pay her attorney fees and costs.” Upon trial, plaintiff testified on direct examination that she worked part time for a Poplar Bluff department store and in that employment had earned about $1,000 during 1964. On cross-examination, it was shown that, prior to separation of the parties in November 1964, defendant had paid the rent, had given plaintiff $25 per week “for groceries” — an allowance sufficient for that purpose, and had purchased some clothing for plaintiff and the two children. When asked “what happened to your money,” plaintiff explained that “usually when I get a payday, I have got several things checked out that I pay for”— “I have bought a lot of clothes for the kids and bought all my clothes . . . and I sent my mother some money . about $100 in the last year.” Further particularizing, plaintiff said that she had paid for herself and her daughter the expenses incident to such feminine niceties as “hairdos” and “permanents,” and then, apparently provoked by the searching interrogation, she petulantly added, “if you are asking me if I have any money now, no, I don’t have any money.”

The foregoing testimony was given by plaintiff on February 9, 1965. When additional evidence was taken on February 16, defendant testified that, during the intervening period, he had conducted a personal investigation at banks in Poplar Bluff, Dexter and Sikeston, Missouri, and in Corning, Arkansas, and thereby had discovered a time savings account of $1,020 in the joint names of plaintiff and her daughter in a bank at Corning, which said sum had been deposited there on October 29, 1964. In the absence of either denial or explanation by plaintiff, defendant’s testimony on this subject should be accepted.

From time immemorial, truthfulness has been recognized as a cornerstone of morality and has been regarded with reverential respect [L- v. N-, Mo.App., 326 S.W.2d 751, 755-756], while perjury has been condemned with the utmost severity and has visited upon its servants grave penalties and tragic consequences, exemplified in our day by V.A. M.S. §§ 557.010 and 557.020 which prescribe far more drastic and severe punishment for that offense than V.A.M.S. § 563.150 does for “open and notorious adultery,” and by judicial holdings that perjury itself may demonstrate unfitness to have the care and custody of minor children. So, we do not view lightly or lay aside easily the charge of defendant’s counsel, cast in charitable language, that plaintiff was guilty of “obvious misstatement of the truth”; and we are neither impressed nor moved by the only comment in plaintiff’s brief pertaining to this matter, i. e., that “he [defendant] should not complain that his wife and daughter are being taken care of by his wife’s frugality.” The Corning time savings account was significant not as it might have indicated plaintiff’s frugality but rather as it bore on her veracity and credibility, for, since that account of $1,020 was established on October 29, 1964, plaintiff was not “wholly destitute” when she swore that she was in her petition dated and filed on November 25, 1964, and her statement from the witness stand on February 9, 1965, that “no, I don’t have any money,” was false and untrue.

However, no issue has been raised concerning plaintiff’s fitness to have the custody of her daughter, Patricia Ann. And, notwithstanding the falsity, inexcused and inexcusable on the record presented, of the above-noted averment in plaintiff’s petition and her positive statement on the witness stand, the trier of the facts was not, for that reason, required to reject and disregard plaintiff’s testimony in its entirety. The credibility of the parties was for the sagacious trial judge, wise in the ways of witnesses [Wilson v. Watt, Mo., 327 S.W.2d 841, 850(10); City of Jackson ex rel. Hoffmeister v. LaChance, Mo.App., 372 S.W.2d 479, 483(3)], and credibility was “not to be determined by the application of a single standard — that of knowingly and willfully swearing falsely.” Wilcox v. Coons, 362 Mo. 381, 394, 241 S.W.2d 907, 914(16). The important conclusion here compelled about the Corning time savings account is that, in fact, it was not subversive of the family relationship because that relationship was ruptured beyond repair about November 14, 1964, and defendant did not even learn of the account until February 1965.

Another matter characterized in defendant’s brief as an “indignity” was plaintiff’s unauthorized endorsement of defendant’s name on, and cashing of, a tax refund check of $171 payable to the joint order of both spouses. Plaintiff’s proffered excuse was that “every time I asked where the money was for the house, he [defendant] had no explanation — the only thing he did say, he said he just buried it away.” And the comment in plaintiff’s brief, i. e., that “this income tax was a joint return and was a result of a substantial portion of the tax which she paid herself from her job” and “the cashing of that check was nothing but taking back that which was already hers,” is wide of the mark and wholly unpersuasive. However, this matter was not pleaded as an indignity; and, on the record as a whole, it is fairly in-ferable that plaintiff’s action, which “was just before” the final separation about November 14, 1964, first became known to defendant after that date. Accordingly, this conduct likewise could not have contributed to the final rupture of the family relationship.

Other unpleaded matters, now urged by defendant as indignities, were: (a) that plaintiff told defendant’s superior, the district manager (at a time and place not specified), that “she wanted me [defendant] to leave home and she wanted out, she didn’t want to live with me any longer”; (b) that “when I would come in sometimes at nine o’clock and ask if there was anything for supper, she would say no, if you wanted supper you should have been here at five o’clock”; and (c) that plaintiff had told him “repeatedly” after the reconciliation in May 1962 that she did not love him, this being elicited by a leading question fashioned by defendant’s counsel which called for and brought forth a simple “yes, sir” from the witness. Again reminding ourselves that the credibility of the parties was for the trial judge, we think that he well might have concluded that defendant’s testimony concerning these unpleaded matters did not “clearly demonstrate or plainly persuade with convincing probative force that they constitute [d] the contemplated insufferable, intolerable indignities” affording a statutory ground for divorce [V.A.M.S. § 452.010] and that his testimony was “lacking in that naturally compelling ring of sincerity manifesting innocent injury . .” Clemens v. Clemens, Mo., 235 S.W.2d 342, 346.

Although it is our duty to review this court-tried case upon both the law and the evidence as in suits of an equitable nature, we are enjoined by both rule and statute that “[t]he judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” While we are not bound by the action of the trial judge, it is our duty to defer to his findings unless we can point to some reason for not doing so, for, as it has been logically pointed out, an appellate court cannot declare the decree nisi to be “clearly erroneous” unless it “can discover and present some good reason for that conclusion.” Pappas v. Pappas, Mo.App., 294 S.W.2d 605, 610. Painstaking examination of the record in the instant case leaves us unable to conclude that the action of the trial court in dismissing defendant’s cross-bill and in granting a divorce to plaintiff as the innocent and injured party was clearly erroneous; and, with proper determination of the case depending so largely upon the credibility of the parties [Doll v. Doll, Mo.App., 327 S.W.2d 501, 504(1)], neither of whom offered any corroborating witnesses, we are not disposed to meddle with those decretal provisions. See Heaven v. Heaven, Mo.App., 363 S.W.2d 33, 39; Jenkins v. Jenkins, Mo.App., 396 S.W.2d 268, 271.

Passing to the monetary provisions of the decree, defendant does not criticize the requirements that he pay $1 each year as permanent alimony and $75 per month for the support of his minor daughter, Patricia Ann, but he complains that the judgment of $2,500 for alimony in gross “failed to take into consideration the financial situation of the parties.” As associate sales manager in the Poplar Bluff area for a major life insurance company, defendant received “a base salary” of $77.50 per week and additional compensation dependent upon and varying with the insurance written and kept in force by himself and the men working under him, seven in number at the time of trial. Plaintiff testified that defendant’s average earnings during the first six months of 1964 were $136 per week, and defendant stated that his “gross earnings” for 1964 were $6,900 or approximately $133 per week. Without detailing deductions or offering any actual figures, he estimated his average “take-home pay” at $100 to $110 per week.

However, the record indicates that the allowance of $2,500 as alimony in gross was not made on the basis of defendant’s weekly earnings but rather was motivated by, and related to, the sale of the six-room family home at Flat River, owned by the parties as tenants by the entirety, during the Spring of 1964 for the gross sale price of $6,500. After payment of delinquent taxes, agent’s commission, and other expenses incident to the sale, the sellers received (a) cash in an amount (according to plaintiff) “in the neighborhood of $3,200 to $3,300” or (according to defendant) “between $3,000 and $3,100” and (b) a note in the principal sum of $2,000, payable in monthly installments of $15 each, and secured by second deed of trust on the real estate sold. Whatever the precise amount of the cash payment may have been, plaintiff testified that defendant told her “that we would put the money in the savings and loan.” (Emphasis ours) She did not know in whose name or names the money had been deposited until “a little later” when she “had reason to add some money,” called the Poplar Bluff Loan and Building Association, and then learned that defendant had deposited $3,000 in his individual name, “payable on [his] death” to her.

Upon trial defendant said that he had deposited the sale proceeds in his individual name because “I had been threatened with a divorce practically since the inception of this marriage, and we have a lot of bills coming up, and I wanted to make certain that they would be paid,” and that he had withdrawn the money “as the bills piled up, where I didn’t have the money to pay them out of my current earnings, and I paid bills out of that as I went along, until it just dwindled down to nothing.” The only specific bill allegedly paid from the sale proceeds, which defendant could remember at the first hearing on February 9, 1965, was the additional premium for automobile liability insurance when his teen-age son began to drive. The remainder of the sale proceeds “just dwindled down to nothing” (so he asserted) by payment of “bare necessities” for which his current earnings were insufficient. By the time he testified again on February 16, defendant had recalled that $212 of the sale proceeds had been used to discharge a note obligation for money borrowed to pay delinquent taxes on the property sold, and that $128 had been used, over his wife’s protest, to join a country club — an affiliation not generally regarded as a “bare necessity” except in certain self-glorifying strata of sophisticated social climbers. But, regardless of what defendant eventually may have done with the sale proceeds, be conceded that on May 2, 1964, he had withdrawn $300 of those proceeds from his individual account in the Loan and Building Association, and that on September 10, 1964 (only about two months before the final separation), he had closed out that account by withdrawing the entire balance of $2,740.50 (including $40.50 interest) which, so he blandly declared, he had carried in cash on his person “as long as I had it.”

As for the $2,000 note secured by second deed of trust on the property sold, defendant admitted having received six monthly payments, no portion of which had been given to his wife. At the hearing on February 16, 1965, he produced the second deed of trust (not offered in evidence) but denied possession of the $2,000 note secured thereby or any knowledge of its whereabouts at that time. When he last had seen it (at a time and place not disclosed), it was (so he testified) in plaintiff’s possession. However, she denied having it.

Defendant had a bank account in a Poplar Bluff bank, but the balance on deposit there was not shown. Notwithstanding his far-flung investigation at banks which had uncovered plaintiff’s time savings account at Corning, Arkansas, defendant professed his inability to give any information concerning his own bank account in Poplar Bluff for the reason that: “I have no way of knowing. My check stubs (sic) were sent to my previous address, and my wife got those and wouldn’t turn them over to me, and so I have no way of knowing.” On the other hand, defendant had no difficulty in remembering that he still owed twenty-five monthly payments of $82.73 each on his 1964 Chrysler Newport with power equipment and air conditioning.

An award of alimony generally is regarded as an allowance in the nature of an award of damages because of the husband’s breach of the marriage contract. Although V.A.M.S. § 452.070 does not impose a mandatory duty upon the trial judge to award alimony to a prevailing wife, an allowance usually is made “in the interest of social welfare and justice” where it is reasonable to do so [Smith v. Smith, 350 Mo. 104, 108-109, 164 S.W.2d 921, 923-924; McCormack v. McCormack, Mo.App., 238 S.W.2d 858, 862-863], based upon the principle that it is the husband’s duty, insofar as he is able, to contribute such amount as will, supplemented by the wife’s earnings and other income, if any, enable her to maintain a standard of living measuring up to that enjoyed at the time of the divorce.

In determining whether an award of alimony should be made and, if so, in what amount, numerous factors properly may be considered, such as the financial status of the respective parties; their incomes, obligations and necessities; the con-' tributions of each to the property accumulated during marriage; the probable future prospects of each; their ages, state of health, and ability to follow gainful occupations; their children and the custodial provisions concerning them; the duration of the marriage and whether it was contracted as one of affection or of convenience; and the conduct of the parties, particularly with regard to the cause of the divorce and the relative or comparative responsibility of each therefor. Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679, 683-684(6); Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 467-468. However, the amount of an allowance is not susceptible of precise and exact determination by application of any hard and fast rule [Stokes v. Stokes, Mo.App., 222 S.W.2d 108, 111(2)], definite standard or “yardstick” [Bittel v. Bittel, Mo.App., 147 S.W.2d 139, 140(2)], or fixed formula. Burtrum v. Burtrum, Mo.App., 210 S.W.2d 364, 373. Each action brings its own facts and presents its own problems; and, in the final analysis, each determination must be governed by, and must rest upon, the particular circumstances of that case. Simon v. Simon, Mo., 248 S.W.2d 560, 568; Fields v. Fields, Mo.App., 343 S.W.2d 168, 170. The amount properly allowable is a matter committed to the sound judicial discretion of the trial chancellor, whose conclusion will be modified or set aside only for manifest abuse of that discretion. Fields, supra, 343 S.W.2d at 170(2); Landreth v. Landreth, Mo.App., 326 S.W.2d 128, 131(3); Simmons v. Simmons, Mo.App., 280 S.W.2d 877, 880(2, 3).

The marriage of the parties in the instant case, solemnized in the bloom of their youth, was one of affection. Plaintiff’s efforts through a relatively long marital period should be recognized as having contributed to acquisition of the jointly-held home in Flat River, from the sale of which $3,000 to $3,300 in cash and a secured note for $2,000 were received. Fields, supra, 343 S.W.2d at 171; Mayor v. Mayor, Mo.App., 351 S.W.2d 810, 815. In fact, statements scattered through the record evidence the recognition of both defendant and his counsel that plaintiff has been and is entitled to share in property acquired and held by the parties as tenants by the entirety. But, as to the proceeds derived from sale of the jointly-held home, defendant’s position, boldly stated in answer to an inquiry by the court, was that, since he had not required his wife to keep a record of the monies he had given her during their married life, he “expected the same consideration” in not being required to account for the sale proceeds of the home. Admittedly no part of the cash received from that sale and none of the monies subsequently collected on the secured $2,000 note have been given to plaintiff; and the trial court reasonably could have found that plaintiff derived inconsequential, if any, benefit from such disbursements as defendant may have made from those funds. Furthermore, the court certainly was not required to accept defendant’s undocumented and uncorroborated representation that the $3,040.50 withdrawn from the Loan and Building Association (including $2,740.50 withdrawn about two months before the final separation) had “just dwindled down to nothing” by payment of “bare necessities.”

At the time of trial, plaintiff had a savings account of $1,020 and was earning about $1,000 per year or less than $85 per month. Except upon proof of a subsequent change in conditions which would justify modification of the continuing nominal award of $1 per year [Schulte v. Schulte, Mo., 140 S.W.2d 51, 54(5); Shapiro v. Shapiro, Mo.App., 238 S.W.2d 886, 889(1)], the allowance of $2,500 alimony in gross is all that plaintiff will obtain for herself. Having carefully considered and weighed all of the considerations and factors reflected in the record, we are unable to brand the trial court’s $2,500 award as a manifest abuse of sound judicial discretion. Ratcliff, supra, 221 Mo.App. at 950-951, 288 S.W. at 797(9) ; Fields, supra, 343 S.W.2d at 171.

When the case was submitted upon appeal, counsel for both parties requested us to enter judgment, pursuant to their agreement, in favor of plaintiff and against defendant in the sum of $260 for attorneys’ fees and suit money on appeal. Desirous as we are to accommodate counsel, that request nevertheless must be denied for want of jurisdiction in this court to enter judgment for such allowances on appeal. State ex rel. Clarkson v. St. Louis Court of Appeals, 88 Mo. 135; Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40, 45(10); Price v. Price, Mo.App., 281 S.W.2d 307, 314(20); McCormack v. McCormack, Mo.App., 238 S.W.2d 858, 864(11-13) ; Creasey v. Creasey, 175 Mo.App. 237, 157 S.W. 862, 863-864(2). See State ex rel. Stone v. Fer-riss, Mo. (banc), 369 S.W.2d 244, 250; State ex rel. Dawson v. Rombauer, 99 Mo. 216, 12 S.W. 661, 662; State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S.W. 342, 343; Dawson v. Dawson, 37 Mo.App. 207, 210.

The judgment of the circuit court is, in all respects, affirmed.

RUARE and HOGAN, JJ., concur.

      . Hooper v. Hooper, 19 Mo. 355, 357; Whitwell v. Whitwell, 318 Mo. 476, 481, 300 S.W. 455, 456; Boehme v. Boehme, Mo.App., 72 S.W.2d 115; Jaros v. Jaros, Mo.App., 395 S.W.2d 217, 220(2).

      . Heaven v. Heaven, Mo.App., 363 S.W.2d 33, 39(8); Moore v. Moore, Mo.App., 337 S.W.2d 781, 787(4-8) ; Clark v. Clark, Mo.App., 306 S.W.2d 641, 646(3); Watson v. Watson, Mo.App., 291 S.W.2d 198, 200(1).

      . O’Leary v. O’Leary, Mo.App., 385 S.W.2d 346, 351(3); Wilson v. Wilson, Mo.App., 354 S.W.2d 532, 542(3); Campbell v. Campbell, Mo.App., 281 S.W.2d 314, 319(6); Haushalter v. Haushalter, Mo.App., 197 S.W.2d 703, 705(1).

      . Simon v. Simon, Mo., 248 S.W.2d 560, 563(2); Easton v. Easton, Mo.App., 361 S.W.2d 166, 169(4); Greco v. Greco, Mo.App., 356 S.W.2d 558, 566(4); Pippas v. Pippas, Mo.App., 330 S.W.2d 132, 137 (7); Stevens v. Stevens, Mo.App., 158 S.W.2d 238, 241(5).

      . Harwell v. Harwell, Mo.App., 355 S.W.2d 137, 141(2, 3); Schneider v. Schneider, Mo.App., 248 S.W.2d 59, 61; Garton v. Garton, Mo.App., 246 S.W.2d 832, 837 (3); Scheer v. Scheer, Mo.App., 238 S.W.2d 865, 867-868; Politte v. Politte, Mo.App., 230 S.W.2d 142, 148(4).

      . Myers v. Myers, Mo.App., 356 S.W.2d 522, 525(3-5) ; Pipkin v. Pipkin, Mo.App., 255 S.W.2d 66, 68(2); Rowland v. Rowland, Mo.App., 227 S.W.2d 478, 484-485; Kolaks v. Kolaks, Mo.App., 75 S.W.2d 600, 603(5).

      . Stone v. Stone, Mo.App., 378 S.W.2d 824, 838(3); Geary v. Geary, Mo.App., 277 S.W.2d 327, 330(4); Robbins v. Robbins, Mo.App., 257 S.W.2d 92, 94(1).

      . Stone, supra, 378 S.W.2d at 838(4); McLanahan v. McLanahan, 104 Tenn. 217, 227, 56 S.W. 858, 861. See Lowe v. Lowe, Mo.App., 229 S.W.2d 7, 14.

      .Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 221(3) ; Wirthman v. Wirthman, 225 Mo.App. 692, 698, 39 S.W.2d 404, 408; Ratcliff v. Ratcliff, 221 Mo.App. 944, 949, 288 S.W. 794, 796(3).

      . L- v. N-, Mo.App., 326 S.W.2d 751, 756(9); E- v. G-, Mo.App., 317 S.W.2d 462, 467; S-v. G-, Mo.App., 298 S.W.2d 67, 77 (14); Shepard v. Shepard, Mo.App., 194 S.W.2d 319, 328.

      . Stewart v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 759, 766(2); Edwards v. Morehouse Stave & Mfg. Co., Mo.App., 221 S.W. 744, 746(4); Link v. Harrington, 47 Mo.App. 262, 267 (1). See State v. Butler, Mo., 310 S.W.2d 952, 955 (2); 98 C.J.S. Witnesses § 469, p. 344; 58 Am.Jur., Witnesses, § 872, 1. e. 500.

      . V.A.M.R. Rule 73.01(d); V.A.M.S. § 510.310 (4); Spencer v. Spencer, Mo. App., 382 S.W.2d 237, 240(4); Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426, 436(4).

      . Bailey v. Bailey, Mo.App., 317 S.W.2d 630, 634; Grieshaber v. Grieshaber, Mo.App., 313 S.W.2d 763, 764; Oakes v. Oakes, Mo.App., 303 S.W.2d 940, 943(2) ; Woodman v. Woodman, Mo.App., 281 S.W.2d 555, 559(3); Forbis v. Forbis, Mo.App., 274 S.W.2d 800, 809(40).

      . Brinker v. Brinker, 360 Mo. 212, 216, 227 S.W.2d 724, 727(4); Smith v. Smith, 350 Mo. 104, 109, 164 S.W.2d 921, 924; Stone v. Stone, Mo.App., 393 S.W.2d 201, 205(8); Spencer v. Spencer, Mo.App., 382 S.W.2d 237, 242; Landreth v. Landreth, Mo.App., 326 S.W.2d 128, 133.

      . Smith, supra, 350 Mo. at 109, 164 S.W.2d at 924; Simmons v. Simmons, Mo.App., 280 S.W.2d 877, 881(4); Stokes v. Stokes, Mo.App., 222 S.W.2d 108, 111 (4); Burtrum v. Burtrum, Mo.App., 210 S.W.2d 364, 372.

      . Adkins v. Adkins, Mo.App., 325 S.W.2d 364, 367 (2, 3); Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67, 70-71(4, 5); Harriman v. Harriman, Mo.App., 281 S.W.2d 566, 570.