text:
    STATE of Missouri, Respondent, v. Charles William BRANTLEY, Appellant.
    No. 48945.
    Supreme Court of Missouri, Division No. 2.
    Feb. 19, 1962.

      William R. Kirby, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., for respondent.
   BOHLING, Commissioner.

Charles William Brantley, on December 17, 1959, pleaded guilty in the Circuit Court of the City of St. Louis to the felony of the possession of burglar’s tools, and was placed on probation by the court. On May 16, 1961, the court entered its order revoking said probation and, after granting allocution, entered judgment on defendant’s said plea of guilty and sentenced defendant to two years’ imprisonment, the minimum punishment. § 560.115. Statutory references are to RSMo 1959 and V.A.M.S. On June 2, 1961, defendant filed a “Motion to Vacate Sentence” under Supreme Court Rule 27.26, V.A.M.R., presenting constitutional issues hereinafter stated. Said motion was overruled June 5, 1961. Defendant has appealed.

The record dicloses the following: The court, accepting defendant’s said plea of guilty, directed the parole officer to make a presentence investigation and report. On March 8, 1960, the court suspended “the imposition of sentence” and placed defendant on probation for a period of two years. § 549.190. Defendant accepted probation, the court and defendant signing the “Order Granting Probation.” Said order, among other things, required defendant to refrain from the violation of any state and federal penal laws; to live a clean, honest and temperate life; to keep good company and good hours, and to pay the court costs.

Defendant was arrested for three burglaries committed in November and December, 1960. Defendant admitted committing these burglaries, describing their commission in some detail to the officers. The officers brought the victims of the burglaries to the police station and the defendant repeated in the presence of each victim the admissions he had made to the officers. The burglary charges were not tried before the judge who had granted probation. They were tried at intervals of about thirty days and in each case the jury acquitted defendant.

Following defendant’s trials for burglary, a hearing was ordered on the revocation of defendant’s probation by the court granting the probation. At this hearing, May 16, 1961, defendant appeared in person and by his present counsel, and the State appeared by an Assistant Circuit Attorney. These attorneys had represented the defendant (by appointment of the court) and the State, respectively, in the burglary trials.

The hearing on the revocation was informal, and consisted of statements made by the two attorneys, the defendant and the court. This informal record is to the following effect: When informed what sentence the State would ask on pleas of guilty to the burglaries, defendant told his counsel he was not guilty, and stood trial. Defendant did not take the stand in the burglary cases. During said trials it was developed on behalf of the defendant that there were contradictions between the testimony of the State’s witnesses and the admissions of the defendant with respect to the commission of the offense on trial. These contradictions or discrepancies were thoroughly presented to the juries. There was no substantial evidence at the trials that defendant’s admissions were involuntary or the result of coercion. Asked by the court for an explanation of his statements in the presence of the witnesses and to the police, defendant answered: “Your Honor, I happened — in my belief, they were forced out of me. I arrived at the police station approximately 2:30 in the morning”; that the officers continued to question him and he constantly kept telling them he knew nothing about it; that they seemed to get “a little angry” and one pulled out a blackjack and threatened to but didn’t hit him with it; that they brought one of the burglary victims to the station the next morning and when “I wouldn’t say nothing,” an officer grabbed him by the back of the neck and gave him a slight shove and said "Now, tell them.” The facts thus stated by defendant were never mentioned during the burglary trials. The probation officer, notwithstanding he believed defendant involved in the burglaries, recommended that the court continue defendant’s probation.

Defendant’s motion under Rule 27.26 alleges he was deprived of certain rights guaranteed by the Missouri Constitution in connection with the revocation proceeding, to-wit: The right of trial by jury. Art. I, § 22(a). The right against being put in jeopardy of liberty for the same offense, after being acquitted by a jury. Art. I, § 19. The right of an accused in criminal prosecutions to face his accusers. Art. I, § 18(a). The right of due process of law in the hearing. Amend. XIV, U.S.Const. See Art. I, § 10, Mo.Const.

The terms “parole” and “probation” are sometimes used interchangeably. Some confusion, particularly as amendments of the law were enacted, has resulted. The definition in Laws 1957, p. 381, § 1 (now § 549.201), recognizes the distinction between the terms, that is: “(2) ‘Parole’ means the release of a prisoner to the community by the state board of probation and parole prior to the expiration of his term, subject to conditions imposed by the board and to its supervision. (3) ‘Probation’ means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court without imprisonment, subject to conditions imposed by the court and subject to the supervision of a probation service.” A principal distinction is that a “parole” operates prior to the expiration and after the commencement of the service of sentence; and “probation” is granted prior to the imposition of sentence or prior to the commencement of the service of a sentence imposed. See 24 C.J.S. Criminal Law § 1618(3), pp. 876, 877, and references.

Defendant contends that the proceeding revoking his probation is governed by §§ 549.201-549.310 of Chapter 549 under the caption “State Board of Probation and Parole,” and particularly § 549.254.

The State’s position is that said revocation proceeding is governed by §§ 549.060-549.190, under the caption “Judicial Paroles,” and particularly §§ 549.060, 549.-080, 549.090, 549.120 and 549.190; and, if not, the hearing accorded defendant complied with § 549.254. We think the term “parole” a misnomer as applied to §§ 549.-060-549.190 as under § 549.080 “the court shall have no power to parole any person after he has been delivered to the warden of the penitentiary.”

For purposes of this discussion, we assume, without deciding, defendant’s contention that his revocation proceedings are governed by § 549.254 to be well taken.

We have hereinbefore quoted the definitions of “parole” and “probation” appearing-under the caption “State Board of Probation and Parole” in § 549.201.

Section 549.254, stressed by defendant, provides: “(1). At any time during probation the court may direct that a warrant be issued for the arrest of a defendant for violation of any of the conditions of probation, or a notice to appear to answer to a charge of violation. Such notice shall be personally served upon the defendant. The warrant shall authorize the return of the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest such defendant without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. * ⅜ * After making an arrest the probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. * * *

“2. Upon such arrest and detention, the probation officer shall immediately report to the court or judge thereof in what manner the defendant has violated the conditions of probation. The court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged. The hearing may be informal and if the violation be established and found the court may continue or revoke the probation and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. If a violation be not established and found, the probation is to continue.”

Although a conflict of authority exists, an exhaustive annotation at 29 A.L.R.2d 1074 states (1077, § 2) that the more logical, also apparently the majority, view is that a person who has been granted conditional liberty (pardon, parole or probation) has no constitutional right to a notice or hearing on the revocation of his freedom for a violation of the conditions upon which it was granted. A summary of the theories underlying the different holdings is stated, some cases considering the above-stated view to be the more realistic.

In Escoe v. Zerbst, 295 U.S. 490, 492, 493, 55 S.Ct. 818, 79 L.Ed. 1566, the court had suspended the execution of the sentence and placed Escoe on probation. An order, issued upon a report of a probation officer, revoking said probation was set aside, without prejudice, for failure to take the probationer “before the court” as required by Federal statute. In so ruling, the court expressly rejected probationer’s contention that he had been deprived of constitutional rights, stating: “In thus holding we do not accept the petitioner’s contention that the privilege has a basis in the Constitution, apart from any statute. Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266.” See also 29 A.L.R.2d 1083, § 4; 1092, § 5; 1121, § 8; 1125, § 9; Bennett v. United States, 8 Cir., 158 F.2d 412, 414 [2], certiorari denied 331 U.S. 822, 67 S.Ct. 1302, 91 L.Ed. 1838; Ex parte Anderson, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051, 1062 [7-10], and authorities cited;. 39 Am.Jur., Pardon etc., §§ 75-80, 94, 95. However, this view of a probationer’s constitutional rights on the revocation of his release to freedom is subject, as stated in Escoe v. Zerbst, supra, to statutes expressly providing for notice or hearing.

The liberty given to a person on conditional probation, parole, or pardon is-subject to all conditions attached to his. release which are not illegal, immoral or impossible of performance. State v. Collins, 225 Mo. 633, 125 S.W. 465 [2, 3]; Silvey v. Kaiser, Mo., 173 S.W.2d 63 [1, 2]; Ex parte Webbe, 322 Mo. 859, 30 S.W.2d 612 [2, 4, 6, 7]; Ex parte Mounce, 307 Mo. 40, 269 S.W. 385 [3]; State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716 [1, 2]. His release is a matter of grace, not a right to be demanded. He surrenders no-vested right, privilege or consideration for his freedom. His unfettered acceptance-subjects him to the conditions imposed. A violation of the conditions is not a criminal! offense, and a proceeding to revoke obviously is not a criminal prosecution within the constitutional provisions. A violation of the conditions voids his rights to his conditional liberty and he is committed to prison for his original offense. When an accused person enters a plea of guilty to a criminal charge and that plea has been accepted by the court or he has been found guilty upon a trial (Sup.Ct.R. 26.01; Mo.Const. Art. I, § 22(a); Sup.Ct.R. 26.02; § 546.070) in which he has been tried or waived his right to a trial by a jury and accepted his conditional release from punishment, it is to-be presumed that he has been accorded all the rights guaranteed him by constitutional provisions, including those enumerated in Art. I, §§ 18(a), 19, and 22(a), Mo.Const.,. and the due process provisions of the Federal (Amend. XIV) and State (Art. I, § 10} constitutions. Society should not be put to a second trial with all the constitutional) guaranties attending the trial of a criminal case to establish that a probationer has violated the conditions upon which this grace from imprisonment for his offense was extended to him.

Section 549.254 provides with respect to the hearing on revocation: “The hearing may be informal * * As hereinbefore stated this hearing consisted of statements made by defendant, his attorney, the State’s attorney and the court concerning the three burglaries of which defendant had been acquitted. Our review, as in criminal and other cases, is in the light most favorable to the action of the court. Under the record the court could find there was no real controversy about defendant’s having admitted the commission of the burglaries to the police officers and to the victims. When given an opportunity and asked to explain these admissions, defendant answered: “Your Honor, I happened —■ in my belief, they were forced out of me. I arrived at the police station approximately 2:30 in the morning.” His explanation then conveys the thought he did not make the admissions. The court was unable to understand how defendant’s admissions could conform with certain details of the burglaries and defendant not be implicated to some extent in their commission. The court concluded defendant was not being honest and frank with the court. It has been stated that due process is satisfied if a reasonable opportunity is extended to one granted a conditional pardon to explain away the accusation that he violated the conditions upon which it was granted. Fleenor v. Hammond, 6 Cir., 116 F.2d 982, 132 A.L.R. 1241, 1247, a habeas corpus proceeding where the reasoning for the result reached (that petitioner had not been accorded constitutional due process) has been subject to criticism. See Ex parte Anderson, supra, 29 A.L.R.2d l. c. 1066, 1067; Annotation, 29 A.L.R.2d l. c. 1081 and 1131. It has also been considered that an application for the revocation of a federal parole may be heard informally, in a summary manner, and that the court is not required to hear evidence on said application. Buhler v. Pescor, W.D.Mo., 63 F.Supp. 632, 639 [16]. See Burns v. United States, 287 U.S. 216, 220, 221, 53 S.Ct. 154, 77 L.Ed. 266.

The State had the burden in the burglary trials of establishing defendant’s guilt beyond a reasonable doubt. The revocation of defendant’s probation is to be upheld if the finding is within the judicial exercise of the discretion of the court. The court was not bound by the verdicts and judgments thereon in the burglary cases. Consult People v. Kuduk, 320 Ill.App. 610, 51 N.E.2d 997 [2, 5]; Bernal-Zazueta v. United States, 9 Cir., 225 F.2d 64, 68 and cases cited at notes 4-6. Nor was the court bound by the recommendations of the parole officer that the probation be continued.

We conclude this informal hearing was sufficient for the stated findings of the court that defendant was not being honest and frank with the court; that he was implicated in the burglaries in some way if not guilty of them. If defendant’s attempted explanation overtaxed the credulity of the court, we are not inclined to interfere. He had been arrested for the burglaries, taken to the police station about 2:30 a. m., and stated he had committed the offenses. Reviews of proceedings under Rule 27.26 are de novo on the record made. Rule 28.05; State v. Eaton, Mo., 302 S.W.2d 866 [3], certiorari denied 355 U.S. 912, 78 S.Ct. 338, 2 L.Ed.2d 273. We think this record also supports findings that defendant violated the conditions of his probation requiring him to lead a clean and honest life and to keep good hours and the provisions of § 549.120 that he conduct “himself as a peaceable and law-abiding citizen.” While this record demonstrates that thought should be given to the issues and their establishment to avoid later unnecessary labor, time and expense, we conclude it is sufficient to sustain the order of revocation.

The conclusion reached makes unnecessary a determination whether §§ 549.060 through 549.190, particularly § 549.090, authorized the termination of this probation at any time without notice to the probationer.

The judgment should be and is affirmed.

BARRETT and STOCKARD, CC., concurs.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    Rosla Lelia PROBST, By Pearl Probst, Her Next Friend, Appellant, v. Eugene L. SEYER and Berline Matthews, Doing Business as Matthews Mill, Respondents.
    No. 48578.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Feb. 12, 1962.

      George A. Murray, St. Louis, for appellant.
    Finch, Finch & Knehans, Jack O. Knehans, Cape Girardeau, for respondent Seyer.
    Riddle, Baker & O’Herin, Veryl L. Riddle, Charles H. Baker, Edward F. O’Herin, Malden, for respondent Berline Matthews.
   HOLLINGSWORTH, Judge.

On April 12, 1957, in Cape Girardeau County, plaintiff, Rosia Lelia Probst, the minor daughter of Pearl Probst, was injured when an automobile driven southward by her father, in which plaintiff was a passenger, came into head-on collision with a northbound automobile driven by defendant Eugene L. Seyer, as the Probst automobile was engaged in passing a southbound motor truck operated by an alleged servant of defendant Berline Matthews. In this action plaintiff, by her father as next friend, sought to recover damages in the sum of $25,000 from defendants for the injuries resulting from that collision. Trial of the case resulted in the return of a court-directed verdict in favor of both defendants at the close of plaintiff’s evidence. Plaintiff has appealed from the judgment rendered in accordance with the verdict. Her contention is that the evidence introduced by her would support a jury finding: (1) that as the Probst car was passing the Matthews truck, the driver of the truck negligently varied its speed in violation of certain statutory rules of the road, thereby making it impossible for the driver of the Probst car to return it to its lane in the rear of the truck or to’ pass in front of the truck in time to avoid the oncoming Seyer car; and (2) that under the circumstances shown Seyer (a) negligently drove his oncoming car at an excessive speed and (b) negligently failed to slacken its speed.

The facts not in issue may be stated nar-ratively. In order, however, to interpret the oral testimony, much of it must be stated in the first person verbiage of the two witnesses testifying in behalf of plaintiff.

Plaintiff is one of eight children, some of whom on the date of the collision were attending the School for the Blind in St. Louis. Mr. and Mrs. Probst and four of their children, plaintiff, James, Frieda and LeRoy, were enroute to their home from the School for the Blind in Mr. Probst’s two-seated 1949 Chevrolet passenger car driven by Mr. Probst. As they rode south on Highway No. 61, a north-south, two-lane, concrete-paved highway, they came to the rear of defendant Matthews’ south bound trailer-tractor truck, which they followed for some 15 miles.

Mr. Probst testified: I figure I had been right close to it for 15 miles. I stayed in a safe distance in case there would be somebody come around me; around 10 feet, I believe. I guess I was going around 30. My car and brakes were in good shape. I believe it was around 7:00, dusk, dark; I had my lights on; I believe the truck had its lights on. I had tried four or five times to pass but somebody was a-coming or a no-passing zone. There was a little grade and a small curve ahead of us, right close to us, pretty close and then near 700 yards down the line was a big curve. There is a dip, low place, about a block away where I couldn’t see, but the big curve (700 yards away) ahead I could see plain. We was just getting ready to go down a hill. When I got even, my radiator with the tractor part of it, his radiator, this Mr. Seyer come around a curve 700 yards down the line and he was driving at such a high speed, by the truck picking up speed I seen I wasn’t going to make it so I just slowed down speed and thought I’d get back in my own lane and some reason or other he slowed down, the truck slowed down, and of course I couldn’t get back in my own lane then and I hit — my right front wheel hit the truck dual, his left dual. And it just kind of slapped a little bit and of course, I seen I couldn’t get in my own lane and I just pulled off to the left hand shoulder, clear off, practically off the road on the left side and I wasn’t going three miles an hour when Mr. Seyer hit me. It was around 400 yards down there where my car struck the truck. I pulled right across the road and got off on the other side of the road, practically drove plumb off. In fact, I believe I was off it. Of course, after he hit me why I was around six inches on the pavement. No other cars had tried to pass. I figure Mr. Seyer was going 65 to 70. My right fender hit his right fender. He tried awful hard to keep from hitting me by putting on his brakes. The pavement is 18 feet wide. When I started around the truck, it was traveling around 35 miles an hour, just started picking up speed there and just topped the hill. I just barely touched the truck, just kinda jarred him a little; I didn’t lose control. I imagine Seyer hit me at a rate of 25 miles an hour, I imagine something like it. Seyer might have gotten off the shoulder about a foot, something like that. His right wheel was what come off. I was off the road first.

On cross-examination by counsel for defendant Seyer, Mr. Probst testified: My eyesight is not too good without glasses, I can see plenty good to drive. Plaintiff has had defective eyesight since birth. Frieda’s vision is the same. My wife’s vision is very poor, she’s practically blind. I had a driver’s license at the time of the wreck. They took them away from me after the accident. I have one now. After I told the state patrolman practically the same thing I have told the jury, I pleaded guilty to careless and imprudent driving; I didn’t have no money to hire a lawyer. It was 700 yards down to the big curve. The dip was about a city block from where I tried to pass. I couldn’t see into the dip. I don’t remember whether I sounded my horn when I tried to pass. I just wouldn’t know what speed the truck was going. I was going around 35. I don’t remember whether the truck was going 22 miles an hour. When I started to pass the truck, he picked up speed because he was going up an incline. By the time I got even with him he was picking up speed. I was pulling out as we come up to the crest of the hill.

On cross-examination by counsel for defendant Matthews, Mr. Probst testified: The Matthews truck was going something like 22 miles an hour as it went over the crest of the hill. The truck stayed on its side of the road and was on down the hill when I collided with the Seyer car. There was a time and space I couldn’t see. I couldn’t have seen the Seyer car when it was in that dip if there’d of been light. But I could have seen its lights if it had been in the dip. I got even with the truck radiator when I saw Seyer’s car lights come around the big curve. When the radiator of my car was even with the radiator of the tractor, I couldn’t see how close the Seyer car was but he was driving at a high speed.

“Q. Are you telling this jury and this court you could estimate this Oldsmobile’s speed 700 yards away at night time? A. Well, he was coming awful fast. He was coming too fast for me to get in there.”

I didn’t have room to get in my own lane. I figured other cars behind the truck was awful close to me. I just couldn’t see how close they was on me. I don’t know whether the truck driver put on his brakes — he just slowed up speed, I imagine. I don’t know whether I ever blew my horn or blinked my lights. I don’t think I ever applied my brakes, I just slowed down. I don’t have any idea how fast I was traveling. I have no idea how long it takes a car to cover a quarter of a mile going 65 miles an hour.

In reply to questions propounded by the court, Mr. Probst testified, in substance: I don’t have any idea how far my car traveled from the time I was even with the truck and saw the Seyer car 700 yards away until my car collided with the Seyer car.

LeRoy Probst, on direct examination, testified in behalf of plaintiff: I am a preacher, aged 19 years. I was riding in the front seat with my father when my sister was hurt. I was coming from the School for the Blind, where I was then a student. My Dad, going 30 miles an hour, started to pass the truck. We started off the hill and then down the hill about 700 yards there was a big curve. When we started to pass the truck, it seemed to me that he kind of slowed down. The front end of our car got even with the front end of the truck. We ran along the side of the truck two, maybe three minutes. Dad couldn’t get around it. As we got even with it, we seen the [Seyer] car lights. Dad slowed and tried to get into his lane. My best judgment is that the Seyer car was going 75 or 80 miles an hour. Dad slowed, the truck slowed, our car slapped the back dual wheel of the truck, Dad swerved and went over on the left hand shoulder. I believe he was actually all the way off the pavement. When the front of our car struck the left rear dual wheel of the truck, the Seyer car was 400 yards away. All of the cars had their lights burning.

On cross examination by counsel for defendant Seyer, LeRoy Probst testified: I have weak eyes and attended the School for the Blind for two years. I could accurately judge the speed of the Seyer car as it came around the curve with its lights on, a distance of 700 yards. I do not and never did drive a car but I rode in many of them with my father and others. The [Seyer] car was going 75 or 80 miles an hour. I doubt if it could have been coming only 70, it could have been going 85 to' 90. We drove alongside the truck two or three minutes. We drove alongside the truck about a minute when we first saw the Seyer car, then we drove alongside the truck about maybe a minute after we saw the Seyer car. I can’t say for sure how fast Dad was driving, maybe 25 miles. I was worried about the car coming toward us, I wasn’t worried about our car, because I knew my Dad had the wheel. I’d say that from the first time I saw the Seyer car 700 yards down the highway until it collided with our car about five minutes went by.

On cross-examination by counsel for defendant Matthews, LeRoy further testified: The truck never got on the wrong side of the road. Dad was going about 30 miles when he started to pull around it.

“Q. So you’re saying that the truck maintained a speed of about 30 miles an hour from the time you started to pull out around until the time you got up there even with its radiator? A. That’s right.
⅜ í¡« ⅜ ⅜ ⅜ ⅜
“Q. Well, did the truck put on its brakes? A. No.
* * * * * *
“Q. I’m wondering this, LeRoy, you testified that [the Seyer car] was going some 80 miles an hour or so at a point 700 yards down, the road, how do you judge distance of a car that far away under those conditions or speed of a car? A. Well see, here’s the way it is, I’ve been in enough cars to know that a car can go mighty fast.
“Q. Yes. A. And I know this much about it. If a guy, 700 yards away, can come and hit another car within five minutes time he had to go awful fast.
“Q. So you’re basing the estimate of his speed upon the period of time it took him to come from 700 yards away up to the point of the impact ? A. That’s right.
“Q. And that’s the only basis that you are using for the estimate of the speed? A. Well, I know good and well, see, that he couldn’t — he had to go that fast to hit — to be making that much speed to hit us that far away.”

At the close of evidence adduced in behalf of plaintiff, the judge orally advised the jury, in substance, that he did not believe the evidence sufficient to warrant submission of the case and that he had suggested to counsel for the plaintiff that plaintiff’s evidence relating to the occurrence be first adduced and that when that was done, it was apparent that neither defendant was “responsible for this incident.” The jury, at the direction of the judge, then returned into court a verdict in favor of both defendants.

Out of the welter of confusing, conflicting, vague and sometimes seemingly irresponsible testimony of plaintiff’s two witnesses we must determine whether a submissible case was made against either of the defendants on the grounds here asserted by plaintiff. In determining" that question we consider the evidence in the light most favorable to those contentions, accepting as true all that is not entirely unreasonable or contrary to physical facts or natural laws and giving to plaintiff the benefit of all favorable inferences that reasonably may be drawn from such evidence. Holmes v. McNeil, 356 Mo. 763, 203 S.W.2d 665, 668; Nelms v. Bright, Mo., 299 S.W.2d 483, 489. But, of course, the case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evi-dentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Willey v. Fyrogas Company, 363 Mo. 406, 251 S.W.2d 635, 642; Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323; 32 C.J.S. Evidence § 1042, p. 1116. The question of whether the evidence in a given case is substantial is one of law for the court. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787-788; Tharp v. Monsees, Mo., 327 S.W.2d 889, 899.

Plaintiff says that a submissible case was made against defendant Matthews by virtue of the provisions of section 304.016 and section 304.019 RSMo 1959, V.A.M.S. (All statutory references herein are to said revision unless otherwise indicated.) Insofar as here pertinent, section 304.016 provides:

“(1) An operator or driver overtaking and desiring to pass a vehicle shall sound horn before starting to pass except in cities where prohibited by ordinance ;
* * * * * *
“(3) Except when overtaking and passing on, the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.”

Section 304.019, insofar as here pertinent, provides:

“(1) An operator or driver when stopping, or when checking the speed of his vehicle, if the movement of other vehicles may reasonably be affected by such checking of speed, shall extend his arm at an angle below horizontal so that the same may be seen in the rear of his vehicle.”

Admittedly, the Matthews truck was at all times on its proper (right) side of the highway. There was no evidence, direct or circumstantial, from which an inference may be drawn that any signal, either audible or visible, was given by the driver of the Probst car either prior to or during his effort to pass the Matthews truck. Indeed, Pearl Probst testified that he could not remember whether he gave any signal at all. Neither was there any evidence, direct or circumstantial, to support an inference that the driver of the Matthews truck knew, or, in the exercise of the highest degree of care, was chargeable with knowledge that the driver of the Probst car was trying to pass him, at least until that car came abreast of the truck, or that there was any purposeful change made in the speed of the truck during the course of the attempt made to pass it.

We have been cited to no Missouri case construing the above quoted portion of section 304.016, nor have we found any. In the case of Swinkels v. Wisconsin Michigan Power Co., 221 Wis. 280, 267 N.W. 1, 5, that court said of a similar statute: “It would be unreasonable to hold that a driver of an automobile is negligent because he inadvertently increases the speed of his vehicle at a time when another vehicle is attempting to pass him. Negligence cannot be predicated upon a mere increase of speed by the driver of an overtaken vehicle unless he has heard a signal or otherwise knows of the intention of another to pass.” Clearly, the statute, per se, placed no duty upon the driver of the Matthews truck not to increase the speed of his vehicle until he had been given an audible signal from the horn of the Probst car. There being no evidence that any signal was given, the statute plays no part in the decision of this case.

Neither was there any evidence, direct or circumstantial, that the driver of the truck checked the speed of the truck in such a manner as to bring him within the meaning of section 304.019, which requires an operator, when checking the speed of his vehicle, if the movement of other vehicles may be reasonably affected by such checking of speed, to extend his arm, etc. LeRoy Probst testified positively that the driver of the truck did not apply his brakes and there was no evidence to the contrary. But, even if the speed of his truck was slowed so as to make the statute applicable, there was no evidence that the driver failed to give such a signal. All of the evidence on that score was that of Pearl Probst, to wit:

“Q. Well, did the truck driver, did he give a signal or anything when you slowed down? A. I don’t remember if he did or not.”

There being no evidence that the driver of the Matthews truck did not comply with the provisions of the statute, it plays no part in the disposition of this case. However, had there been evidence that made the statute applicable, there was yet no showing that the Probst car could have been maneuvered back into its own lane in time to avoid the oncoming Seyer car. Mr. Probst testified that he did not have room to get back into his own lane; that he “figured other cars were awful close to him.” Consequently, we conclude that no submissible case was made against defendant Matthews.

Was a submissible case made against defendant Seyer? For the reasons hereinafter stated, we have concluded there was not.

The driver of a vehicle traveling in a direction opposite to that of a vehicle passing another is required to exercise lawful care (in this state, the highest degree) to avoid collision even though he may have prior claim to the right of way. Ordinarily, he may assume that the driver of the approaching vehicle will obey the rules of the road and return to his own side of the road. 60 C.J.S. Motor Vehicles § 317, p. 733. When, however, in the exercise of the highest degree of care, it becomes or should become apparent that the driver of the passing vehicle is unable to or will not return to his side of the road in time to avoid danger of collision, it then becomes the duty of the driver of the oncoming vehicle to exercise the highest degree of care to avoid collision by slowing, stopping, swerving or other means reasonably available and consistent with his own safety. Nelms v. Bright, Mo., 299 S.W.2d 483, 489-490, and cases therein cited; 60 C.J.S. Motor Vehicles §§ 317, 319, pp. 732, 738.

The testimony of both Mr. Probst and LeRoy, viewed in the light most favorable to plaintiff, would seem to support a finding that when the Probst car came alongside the truck the Seyer car was seen by them coming around the “big curve” 700 yards to the south, and that the collision between these vehicles occurred at some point on the left (east) shoulder of the highway not exceeding a point 400 yards south of the point where the Probst car struck the left rear dual wheel of the truck. But there was no evidence to show how far the Probst car had advanced down the highway from the time it first undertook to pass the truck until it struck the rear dual wheel of the truck. Absent substantial evidence of that fact, there was no possibility of determining (1) the distance traveled northward by the Seyer car from the “big curve” to the point of its collision with the Probst car, or (2) the distance traveled southward by the Probst car from the point where it first started to pass the truck to the point of its collision with the Seyer car. Mr. Probst testified that he had no idea of that distance. LeRoy’s testimony sheds no light whatever upon it. Neither were the estimates of speed made by the witnesses of assistance in that respect. Even if Mr. Probst’s estimate of the speed of the Seyer car when he first saw it 700 yards to the south of his car was substantial, there was no evidence whatever that it continued to the point of collision at that rate; and LeRoy’s estimate of the speed of the Seyer car was based upon such a fantastically absurd basis as to demonstrate its complete lack of probative value. There was, therefore, nothing in the record from which the jury could determine how far the Seyer car was from the Probst car (1) when and where Seyer, in the exercise of the highest degree of care, saw or should have seen that the Probst car would not or could not return to its proper lane in time to avoid danger of collision; or (2) whether Seyer, traveling at some unknown rate of speed at that instant and point on the highway, could have slowed, swerved or stopped his car in time to avoid collision with the Probst car.

Consequently, there was not sufficient substantial evidence to support a finding either (a) that negligently excessive speed of the Seyer car or (b) that negligent failure of Seyer to reduce the speed of his car was a proximate cause of the collision.

The judgment of the trial court is affirmed.

All concur.


author: BROADDUS, Judge.

text:
    Frances Mae SWAN, Respondent, v. Jerrold STUART, D/B/A McVay Motor Company, Appellant.
    No. 23594.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.
    Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Thomas O. Pickett, Pickett, Andereck & Hauck, Trenton, for appellant.
    R. LeRoy Miller, Trenton, for respondent.
   BROADDUS, Judge.

This action was originally instituted by Paul Swan and Frances Mae Swan, husband and wife. In said action they sought to recover damages against defendant by reason of an automobile collision. Plaintiffs’ petition was in three counts. In Count I plaintiff, Frances Mae Swan, sought damages for personal injuries. In Count II both plaintiffs prayed for damages to their automobile. In Count III Paul Swan asked damages for loss of his wife’s services.

The jury returned a verdict awarding Frances Mae Swan $1000 for personal injuries, gave plaintiffs nothing for damages to their automobile, and awarded Paul Swan $380 for loss of his wife’s services.

Judgment was rendered upon the verdict, and in due time defendant filed his motion for new trial. The motion was taken up by the trial court and “sustained as to Count II and Count III of plaintiffs’ petition and overruled as to Count I.” Thereafter, defendant appealed to this court, where the case was argued and submitted. On November 6, 1961, we held that the appeal was premature and dismissed the same. (See Mo.App., 350 S.W.2d 832). On November 30, 1961, plaintiffs dismissed Counts II and III of their petition without prejudice. The trial court thereupon entered final judgment in favor of plaintiff, Frances Mae Swan, in the sum of $1000 and defendant has again appealed.

Inasmuch as defendant does not contend that plaintiff did not make a submissible case we will not set out the evidence in detail. Plaintiff and her husband are residents of Grundy County; Defendant, Jerrold Stuart, is an individual doing business as the McVay Motor Company in Trenton, Missouri. On November 30, 1959, one Ferris Brown, an agent for defendant, operated defendant’s 1952 Ford automobile in a northerly direction on State Route “N” in Grundy County, and made a left-hand turn at 2-3 miles per hour into the driveway of p. farm on the west side of the road. Mrs. Swan operated a 1958 Ford automobile in a southerly direction at 35-40 miles per hour on said Route “N”. Each driver was traveling alone. The weather was clear and the road was dry. The right front end of plaintiff’s vehicle collided with the rear right end of defendant’s vehicle just as defendant’s car entered the farm drive. At the scene of the collision Route “N” is a hilly blacktop road. The farm drive into which defendant’s car had turned was south of the crest of the hill over which plaintiff’s car was approaching.

Defendant’s first point is that the verdict is excessive. We need not discuss this contention in view of the fact that we have reached the conclusion that the cause must be remanded for a new trial by reason of error committed in the admission of testimony. Neeley v. Snyder, 193 S.W. 610, syl. 10 (Mo.App.); Duncker v. St. Louis Public Service Co., 241 S.W.2d 64, 71 (Mo.App.).

Defendant’s other contention is that the court erred in admitting testimony given by plaintiffs’ witness, Dr. Duffy, concerning a claimed “rheumatic condition” and “traumatic arthritis” condition suffered by plaintiff.

Nowhere in her petition does plaintiff allege that she suffered from a “rheumatic condition, arthritic condition, of a traumatic nature,” nor suffered from “traumatic arthritis.” When plaintiff sought to introduce such testimony, the defendant interposed an objection which was overruled by the trial court. Thereafter the doctor expounded at great length on “what that means in her back, traumatic arthritis,” contending this to be a permanent condition accompanied by soreness and stiffness.

It is an elementary rule of law that in the face of an objection the plaintiff’s evidence must conform to the pleading. Duncan v. Gage, 250 S.W. 647 (Mo.App.). This is because the pleader must not be permitted to prove that which he does not allege. Dimick v. Snyder, 34 S.W.2d 1004 (Mo.App.).

The test as to whether or not plaintiff can introduce evidence of “rheumatism” or “traumatic arthritis” turns upon the question of whether or not those complaints are shown to be “the inevitable and necessary result of the injuries alleged.” Proctor v. Jacob Ruppert, 236 Mo.App. 684, 159 S.W.2d 328. The fact that the injury was a natural or usual result of the injuries alleged in the plaintiff’s petition is not sufficient. It must be shown that the injuries not pleaded are the necessary result of the injuries alleged. Lane v. Kansas City Railways Co., 228 S.W. 870 (Mo.App.).

Thus in the Proctor case, supra, a petition alleging that all of the muscles, ligaments, tendons, nerves, tissues, bones and organs of the plaintiff’s abdominal and pelvic regions were wrenched, sprained, bruised, contused, lacerated, torn and misplaced was held not to be sufficient to authorize proof of hernia. In Shafer v. Harvey, 192 Mo.App. 502, 183 S.W. 670, allegations as to injuries of back, spine, ribs, and internal organs were held not to support the testimony as to paralysis and muscular atrophy.

This question was treated fully by the St. Louis Court of Appeals in Ziervogel v. Royal Packing Co., 225 S.W.2d 798, 802. There the court reversed a judgment for plaintiff and held that evidence of increased blood pressure from the time of accident of plaintiff and shoulder injury was inadmissible in the absence of an allegation of special damages to that effect in the petition. On that point the court said:

“It has been held by our Supreme Court that a specific personal injury which is not the necessary or inevitable result of an injury alleged in the petition constitutes an element of ‘special damage’ which must be specifically pleaded before evidence thereof is admissible.” (1. c. 802.)

In the Ziervogel case the plaintiff alleged in her petition that “plaintiff sustained injuries to her neck, back, spine and nervous system and was otherwise injured and her earning capacity had been permanently impaired.” In the course of the trial, plaintiff introduced not only evidence of increased blood pressure, but also evidence of a shoulder injury. With reference to the latter the court said:

“What we have said herein with respect to the evidence of plaintiff’s increase of blood pressure applies with equal force to the evidence of the injury to plaintiff’s shoulder. In the absence of any allegation in plaintiff’s petition relating to that injury, it was error for the court to admit such evidence.” (1. c. 803.)

The crux of the court’s holding in the Ziervogel case appears in this language:

“It will be observed that not only is there no mention of increased blood pressure but no injuries are alleged from which it can reasonably be said that an increase in blood pressure was an inevitable or necessary result. Nor was there any evidence to show that the increased blood pressure was the necessary or inevitable result of the injuries alleged in the petition.” (1. c. 802.)

For the error above noted the judgment is reversed and the cause remanded. All concur.


author: SPERRY, Commissioner.

text:
    CITY OF ALBANY, at the Relation and to the Use of CRANE COMPANY, a corporation, Plaintiff-Respondent, v. ACE DEWEY, INC., a corporation, and Aetna Casualty and Surety Company, a corporation, Defendants-Appellants.
    No. 23433.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      Don Pierce, Downs & Pierce, St. Joseph, Frederick E. Lewis, Ervin, Ervin, Siggins & Lewis, Kansas City, for appellants.
    Bernard D. Craig, Paul Margolis, Jr., Granoff, Levy & Craig, Kansas City, for respondent,
   SPERRY, Commissioner.

Crane Company, the real plaintiff herein, sued Ace Dewey, Inc., and Aetna Casualty and Surety Company, its bondsman, seeking judgment in the sum of $3159.33, stipulated between the parties to be the unpaid balance due it for materials furnished to Ace Dewey’s subcontractor, for construction of a swimming pool at Albany, Missouri. Trial to a jury resulted in a verdict for defendant. The Court sustained plaintiff’s motion for a new trial on the grounds that instruction No. 11, offered by plaintiff, was erroneously refused. Defendant appealed.

The city of Albany contracted with Ace Dewey, Inc., hereafter referred to as defendant, for construction of a swimming pool. Defendant subcontracted the plumbing to Hamilton Plumbing and Heating Company, a partnership consisting of Robert Hamilton Sr., and Robert Plamilton Jr., hereafter referred to as Hamilton. Defendant, as principal, and Aetna as surety, entered into a performance bond with the city to secure payment to suppliers of material used in the construction of the swimming pool,

Hamilton contracted with defendant to furnish the materials and labor for the plumbing. Plaintiff furnished materials to Hamilton and, when the project was completed, Hamilton owed plaintiff an unpaid balance therefor. Defendant stated in its brief that it was stipulated between the parties that the unpaid balance due plaintiff by Hamilton was $3159.93.

After this suit was instituted defendant brought Hamilton in as third party defendant. Neither of the Plamiltons filed answer or made any defense but both were called to testify for defendant.

When construction of the Albany project was begun Hamilton also had four other projects under construction; B’ani Temple, Brookdale, Lock Springs, and Boonville. The Boonville contract was for $106,000, Albany was for $14,850.

Plaintiff furnished Hamilton with materials, for Albany, in the amount of $6701.-13, but plaintiff admits that this amount was reduced by the sum of $3000 cash paid, and by credits of $541.80, although Hamilton claimed additional credits. However, as stated, it was stipulated between plaintiff and defendant, that Hamilton owed plaintiff $3159.33 (aside from Interest).

During the time that plaintiff furnished materials for Hamilton on the Albany project, it also furnished materials to it for the four other jobs. From time to time, as Hamilton made payments to plaintiff for materials, plaintiff would apply same to the oldest and largest account, as was its custom. Plaintiff’s evidence was to the effect that it had no information as to the source of money paid to it by Hamilton, and no instructions as to what account upon which to apply it. The only dispute here between plaintiff and defendant grows out of defendant’s contention that plaintiff did have information as to the source of Hamilton’s payments, and had instructions to apply certain payments to the Albany account. Those payments were, in fact, applied to the Boonville account. A surety company, other than Aetna, had bonded the Boon-ville contract.

The amount owing to plaintiff by Hamilton was agreed upon. Hamilton became financially irresponsible and was unable to pay. Plaintiff sued on the bond. The sole issue tendered by the pleadings, after it was agreed that Hamilton owed plaintiff $3159.-33, was whether plaintiff should have applied certain checks given to it by Hamilton to the Albany account. They were, in fact, credited to the Boonville account. This is the issue that was tried.

Defendant called Hamilton, Sr., as a witness. Over the objections of plaintiff he was permitted to state that there were arguments concerning credits claimed by Hamilton, between Hamilton and plaintiff, “on all of these jobs”. The statement referred to numerous miscellaneous credits claimed by Hamilton because of overcharges on various shipments of material on all of the jobs then under construction by Hamilton. Such disputes had no relation to the issue being tried in this case. Whether or not there were overcharges for materials used at Boonville, B’nai Temple, Brookdale, or elsewhere except Albany, was immaterial and irrelevant. The issue was whether there was a misapplication of moneys admittedly paid by Hamilton.

Over the repeated objections of plaintiff the witness was permitted to testify in detail as to credits that Hamilton claimed, and plaintiff refused, on the Boonville, B’nai Temple, Safeway, Lock Springs, and Brookdale jobs as well as the Albany job, and that plaintiff “owes” Hamilton “around $2000 worth” of such credits.

Plaintiff protested to the Court that it did not wish to cross-examine the witness on this matter on the grounds that Hamilton was not a party defendant as to it, and that, by cross-examining him, it would permit testimony regarding claims growing out of projects other than Albany. The Court then said, “well, this testimony is not worthy of consideration, no records, just figures out of the sky”. Thereupon, plaintiff moved the jury be instructed to disregard the testimony, to which the Court replied: “we will have to cover it by an instruction. I can’t by an oral one”.

At the close of the evidence plaintiff offered instruction No. 11, which was refused, as follows:

“The court instructs the jury that the testimony of R. T. Hamilton, Sr., concerning general credits allegedly due to Hamilton Plumbing and Heating Company by Crane Company on various jobs, is too vague, general and indefinite to be worthy of belief, and is not confined to the issues in this case, and does not tend to prove or disprove any of the issues in this case, and for said reasons, the Court instructs the jury that they are to disregard the testimony of R. T. Hamilton, Sr. concerning the alleged general credits due Hamilton Plumbing and Heating Company.” (Emphasis ours).

It was error to admit the above mentioned testimony over timely objection, because it was not relevant or material to the issue being -tried. Plaintiff and defendant had agreed that Hamilton owed plaintiff a balance of $3159.33. Hamilton was not a party defendant, so far as plaintiff was concerned. What credits may or may not have been claimed by Hamilton on jobs, other then those connected with Albany, had nothing to do with whether plaintiff had failed to apply certain checks, paid to it by Hamilton, on the Albany account, contrary to instructions.

The Court heard the testimony and was in a position to observe its effect on the jury. He apparently believed it to have been prejudicial to plaintiff else he would not have granted a new trial on the ground specified. In such circumstances, this Court should defer to the ruling of the trial Court. Sho-Me Power Corporation v. A. Fann et al., 365 Mo. 1042, 292 S.W.2d 91, 95; Bray v. St. Louis-San Francisco Ry. Company (Mo.App.), 236 S.W.2d 758, 761.

But defendant contends that the instruction is too broad in thát it withdraws all of the testimony of Hamilton, Sr., by use of the terms “various jobs”. It contends that, for that reason, it should not have been given. It is unnecessary to pass on that question. It is noted that ground 4 of the motion for a new trial is, “that the Court erred in admitting irrelevant, incompetent and immaterial evidence offered by defendant over the objections of the plaintiff”. If the Court’s action in granting a new trial can be sustained on any ground assigned in the motion then it will be done. Thrower v. Life & Casualty Ins. Company of Tennessee (Mo.App.), 141 S.W.2d 192, 196.

Considering the prejudicial effect that the above mentioned testimony had, in the opinion of the trial judge, as it well may have had in the light of the whole record, the judgment granting a new trial should be sustained on ground No. 4.

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: CROSS, Judge.

text:
    Charles E. DODDS, Respondent, v. Wilma Ruth DODDS, Appellant.
    No. 23453.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.
    See also 328 S.W.2d 724.

      Jerome B. Stone, Goodman, Stone & Taxman, Kansas City, for appellant.
    Clyde G. Meise, Kansas City, Albert Kiesow, Kansas City, Kan., for respondent.
   CROSS, Judge.

This is an appeal from the trial court’s judgment sustaining a divorced husband’s motion to reduce an alimony award to his former wife.

The former husband, respondent Charles E. Dodds, filed the original divorce suit as plaintiff. The case was tried on November 23, 1947, and taken under advisement. On March 31, 1948, the trial court granted a divorce and $150.00 per month alimony to the defendant wife, Wilma Ruth Dodds, who is appellant here.

On January 13, 1961, the trial court sustained respondent’s motion to modify the alimony judgment and ordered that appellant’s monthly support allowance be reduced from $150.00 to $75.00. Appellant seeks our review of the judgment.

It is contended by appellant that respondent failed to prove that the circumstances and conditions of the parties had changed since the original judgment, and that, therefore, the trial court abused its discretion when it modified the judgment and reduced the amount of her alimony. Respondent insists that he has shown such change in circumstances and conditions sufficient to justify the modification — in that his earnings and earning ability have been materially reduced since the divorce was granted.

It is fundamental that a judgment for alimony, like any other judgment, is res judicata as to all facts and conditions bearing upon the award and existing at the time of its rendition as shown by the evidence, and that authority for its modification depends upon proof of a subsequent change in conditions. See Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67, and cases cited. The burden of showing such change rests upon the party moving for modification of the judgment. Adkins v. Adkins, Mo.App., 325 S.W.2d 364; Schulte v. Schulte, Mo.Sup., 140 S.W.2d 51. Under these principles we proceed to review the record before us de novo and determine the disputed issues.

There is virtually no conflict in the evidence, all of which was introduced by respondent. It is shown that the parties were married in 1925. Mrs. Dodds was then 21 years old. Three children were born of the marriage — a son and twin daughters. The son is presently 30 years of age. The twin girls died at infancy under tragic circumstances. Since that time, appellant has been “very ill and under nervous strain” and “has been in and out of hospitals”. She was first sent to the Major Neurological Clinic. Respondent next had her confined in General Hospital for observation. He also had her confined in St. Joseph State Hospital No. 2 for the same purpose. When she was released from that institution, respondent didn’t call for her. Instead, a niece of Mrs. Dodds went there and received her. She went to California to live with and be cared for by her niece. It appears that respondent filed his divorce suit while appellant was in California. He testified, “I don’t know where she was at, I guess she was in California”. Since the divorce, appellant has been living alone in a “cheap” hotel in Chicago. Her brother and his wife live in that city. Respondent resides and owns his own home in Kansas City, Kansas. He remarried about five years after the divorce was granted. He is an employee of the A. Y. McDonald Manufacturing Company, and was so employed for the past forty-two years.

The only evidence touching respondent’s earnings and financial condition is his own testimony at the motion hearing on January 13, 1961. ■ Claiming that his then present income was considerably less than it was when the divorce case was tried, respondent testified on direct examination that his annual earnings from 1947 through 1960, inclusive, were as follows:

1947 — $20,075.00 1954 — $15,781.86

1948 — 23,278.24 1955 — 15,771.73

1949 — 24,407.91 1956 — 13,21-9.50

1950 — 20,150.00 1957 — 11,800.00

1951 — 28,858.94 1958 — 8,860.33

1952 — 23,897.73 1959 — 7,866.26

1952 — 22,089.22 1960 — 8,711.72

The foregoing schedule contains only one of the two factors necessary for our comparison — respondent’s income for 1960 in the amount of $8711.72. We regard that figure as the proper index of his “present” income because it derives from the last complete year immediately preceding the hearing.

Absent from the schedule is respondent’s income for the critical year of 1946 — the last complete income year next preceding the divorce hearing in 1947. However, that figure was separately shown by respondent’s testimony. On cross examination he admitted that he testified at the divorce trial (on November 23, 1947) that his total gross income for 1946 was $11,000.-00 — subject to taxes of $2340.00 — a net income of $8650.00.

Relative to his 1947 income — respondent admitted testifying in the divorce case that his employer’s gross business for the then current and unexpired year of 1947 would be only 60 per cent of its volume in 1946— from which the court could only infer that respondent’s 1947 income would be some 40 per cent less than his 1946 income. There was no evidence before the judge who made the award of alimony that respondent’s 1947 income was, or would be $20,750.00. That figure appeared for the first time in the proceeding now under review.

It is apparent from the whole record that the only evidence before the court trying the divorce case on November 23, 1947, to establish respondent’s total annual income for a complete year} was that he earned a net sum of $8650.00 in 1946.

Our problem has been reduced to this question: Has respondent proved that he suffered a reduction in earnings and a worsening of his financial condition by showing (1) that his income was $8650.00 (for 1946) when the divorce case was tried and (2) that his “present” income (for 1960) was $8711.42? The question would provide its own answer if it were true and had been shown by evidence that the $8711.42 income for 1960 was net, after taxes. There is no evidence in the record to show whether the stated figure was gross or net income.

If we were to indulge in the assumption that the 1960 earnings were gross, then we would have for comparison (1) the gross earnings of $11,000.00 for 1946 and (2) the gross earnings of $8711.72 for 1960. The latter sum is the lesser by $2288.28. Even if so, under the present assumption, we believe that in 1960 respondent was in such financial circumstances that his personally useable and enjoyable income after the payment of alimony was then greater than it was in 1946 for reasons here noted.

When the divorce case was tried, respondent was expending $200.00 per month for the support and education of his son — then 17 years old. That son is now an adult over thirty years of age. Respondent no longer contributes to his needs. Respondent now takes allowable income tax deductions on account of and equal to his present payment ■of alimony. As a result, his tax burden is ■substantially reduced and his personally enjoyable income is augmented. The evidence shows that respondent’s net worth has increased. At the time of the divorce trial his principal assets were: government bonds approximating $600.00; corporate stock worth approximately $37.50; $2000.00 in a checking account; and, an undivided interest in a $7000.00 home worth $3500.00— totally $6137.00. He presently owns an un-mortgaged home worth between $11,000.00 ■and $13,000.00. These enumerated factors indicate that respondent’s ability to pay alimony in the amount of $150.00 per month without personal hardship has not diminished, but on the contrary has improved.

We conclude that respondent has •failed to show such change of conditions respecting his earning ability, income and financial worth as to warrant a reduction in .appellant’s alimony.

In making an award of alimony or determining the justice of its modification, ■there are elements to be considered other than the financial means of the husband. It •is elementary that alimony should be adequate to meet the reasonable needs of the wife for sustenance, clothing, shelter and care due her in the station of life to which ■she had been accustomed and within the ■ability of the husband to provide. Seigfreid v. Seigfreid, Mo.App., 187 S.W.2d 768. In determining the amount of alimony that should be allowed a wife, the court should take into consideration her health, age, needs, earnings and her capacity to earn. Landreth v. Landreth, Mo.App., 326 S.W.2d 128. The age and physical condition of the wife have particular bearing. If from age and infirmity she is incapable of contributing to her own support, she should be provided for more liberally than if she were young and vigorous. See Adkins v. Adkins, Mo.App., 325 S.W.2d 364. Mindful of these principles, we now consider appellant’s present condition and circumstances as shown by respondent’s evidence — -by depositions taken and introduced by him. We cannot compare appellant’s present needs and living costs with those existing at the time she secured the divorce because there is no evidence to establish the latter standards.

When appellant married, she had no particular training for a job of any kind. During the years of her marriage she did no work except housework. When she went to Chicago after the divorce she worked for a while in a restaurant kitchen. She has not been employed in later years. She is now 56 years old and in poor health— mentally and physically. The testimony of a physician shows that she is suffering from hypertension and cerebral arteriosclerosis. The doctor stated, “More seriously she has a mental problem”, “she is not responsive, lives in a shell, and is a reclusive type of patient”. She is thin and bent forward by a spinal curvature, is depressed and uninterested in her surroundings, and appears to be at least 65 years old. She is not competent, either physically or mentally, to hold any kind of job — even menial.

The evidence discloses that appellant has no income, money or property of her own. She has been unable to subsist on her alimony without assistance from her brother who has contributed substantial sums to her support. Appellant pays $58.50 monthly rent for an “apartment” without sanitary facilities. She uses a “public” bathroom.

The cost of her food is $65.00 per month. It is shown that she requires $50.00 per month for clothing, shoes and personal needs and $6.00 per month for insurance. The foregoing sums, totalling $179.50, include nothing for medical services. She presently needs medical, psychiatric and dental treatment but has no funds to secure it. She has no means to afford a television or other entertainment.

The undisputed evidence before us compels our finding that respondent has not shown any change of condition or circumstance affecting appellant, her needs or her cost of living that justifies any reduction of her alimony. In our opinion a sum less than $150.00 per month would not provide appellant the reasonably necessary means of subsistence to which she is entitled.

We make no comment on respondent’s expenditures for his own living expenses, either formerly, presently, or comparatively, because there is no evidence on that subject.

Respondent urges that we defer to the decision of the trial court. We are aware of our duty to regard that court’s findings with due deference where sharply conflicting evidence does not preponderate one, way or the other. However, the reason for the rule fails in large measure where, as here, there is no material conflict in the testimony — if any at all. In any event, it is our duty, upon this review de novo, to determine the right and justice of the matter in controversy. Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67, and cases cited.

Because of our respect for the capable trial judge who heard this cause, we are reluctant to disturb his judgment. Notwithstanding, we cannot yield our firm convictions and violate the judicial trust reposed in this court. Since the result reached by the trial judge does not comport with our conscience, to which is addressed the final responsibility for a just determination, it is our bounden duty to so declare. Bassett v. Bassett, Mo.Sup., 280 S.W. 430; Campbell v. Campbell, Mo.App., 281 S.W.2d 314; Adkins v. Adkins, Mo.App., 325 S.W.2d 364.

We conclude that respondent has failed to> establish any tenable ground or legally sufficient reason to support the judgment before us. In our opinion the reduction of appellant’s monthly alimony from $150.00' to $75.00 is not justified by the evidence or in accordance with good equitable conscience.

We reverse the judgment entered January 13, 1961, modifying the original judgment,, and remand the cause with direction that respondent’s motion to modify that judgment be dismissed.

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Terry Wayne TAYLOR, a Minor, by His Mother and Next Friend Marjorie Cooper, Appellant, v. KANSAS CITY, Missouri, a Municipal Corporation, Respondent.
    Nos. 23389, 23394.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.
    Rehearing Denied Feb. 12, 1962.

      Jack N. Bohm, Kansas City, for appellant.
    Keith Wilson, Jr., City Counseler, Timothy D. O’Leary, Asst. City Counseler, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Terry Wayne Taylor, an infant, by his mother and next friend, sued defendant, Kansas City, Missouri, for damages suffered when he accidentally fell into a dry wading pool located in a city park immediately adjacent to the playground of a public school of which he was a pupil. The jury returned a verdict for plaintiff for $6,-000.00. The Court sustained defendant’s motion, set aside the verdict, and entered judgment for defendant. Plaintiff has appealed.

The accident occurred on May 13, 1958, when plaintiff was seven years and nine months of age. He was then, and for sometime had been, a pupil at Karnes Public School in Kansas City. The playground of the school was in front of the building and, immediately adjacent, to the north, was a park, maintained by defendant. The two were separated by a curbing from two to seven inches high. Eighty feet from the school building and located in the park was a wading pool. It was oval in shape, 60 feet by 80 feet in size, and was three feet eight inches in depth, with a concrete curb, several inches high, around it. The pool was of concrete and was dry. There was no barrier or fence around it.

At the time this accident occurred plaintiff was familiar with the playground and its close proximity to the park, together with the physical characteristics present. Pupils were expected not to appear at the school until 8:30 a. m. because supervisors were not available until then. However, on the morning in question, several boys, including plaintiff and his brother, were present at 8:15 a. m. and were playing ball. Plaintiff attempted to catch a high ball and, in doing so, walked backward to get under it, a distance of 19 feet. In doing so he stepped over the curb between the school ground and the park, and continued until he came into contact with the curbing around the dry wading pool. He fell backward, over the curb, and the back of his head struck the concrete bottom of the pool. He suffered a concussion of the brain and a skull fracture.

Plaintiff and other pupils habitually played on the school ground and spilled over into the park. They played ball in the area, and around the pool.

Defendant contends that it was not guilty of any negligence in maintaining the pool at the time, and under all of the facts and circumstances shown in evidence, and that there is no liability.

Municipalities are responsible for failure to exercise ordinary care to maintain public parks in a reasonably safe condition as to children attracted there. That .is, the municipality is responsible for negligence. Doran et al. v. Kansas City, 241 Mo.App. 156, 237 S.W.2d 907, 913. In Capp v. City of St. Louis, 251 Mo. 345, 158 S.W. 616, 618, 46 L.R.A.,N.S., 731, a child was drowned in a deep pool in the bed of a stream flowing through Forest Park. Defendant knew that children played in the park, in the stream, and around the pool; and it took no steps to guard the pool or to eliminate its danger, which it could have done at a reasonable cost. It was held that the facts made a submissible case on negligence. In Barker v. East Side Building Corporation (Mo.App.), 344 S.W.2d 299, a child was injured while pushing a “merry-go-round”, located on a playground, from underneath it. Defendant knew that, on one side of the device, children could and did get under it and pedal it with their feet. We held that a submissible case was made on negligence in its maintenance of the instrumentality in the absence of guards to prevent its use in the manner that plaintiff was using it.

In the case here considered, defendant maintained the pool in a public park, the southern edge of which virtually adjoined the playground of a public school attended by many small children. It knew, or could have known, that these children played on the school ground as well as in. the park, and that they played ball in and around the pool. It should have known that a child might, in play, fall or run into the pool. The pool had no guard rail or barrier around it, which would not have been unduly expensive to install and which, no doubt, would have prevented an excited child, while playing ball or other childhood games, from inadvertently faffing into the dry pool. Such a fall, as defendant might have well known, could cause dangerous injuries, such as was received by plaintiff in this case. Under the facts the jury could, as it did, find the city guilty of negligence., Capp v. City of St. Louis, (en banc), 251 Mo. 345, 158 S.W. 616, 618.

Defendant charges that plaintiff’s verdict directing instruction, No. 1, is fatally erroneous. That instruction is as follows:

“The Court instructs the jury that if you find and believe from the evidence that on May 13, 1958, the defendant, City of Kansas City, Missouri, owned, operated and maintained a wading pool on Columbus Square Playground in Kansas City, Missouri, adjacent to and adjoining the Karnes School ground at 550 Charlotte Street in Kansas City, Missouri, and if you further find that the pool on said May 13, 1958, was empty, that is without water in it, and if you find that the defendant City did not maintain a guard, wall or fence around said pool on said date of May 13, 1958, and if you find that the failure of the defendant to maintain a guard, wall or fence around said pool constituted negligence on the part of the defendant as defined in other instructions, and if you further find that such negligence, if any, caused or contributed to cause the injuries suffered by the plaintiff, if you find he was injured, then your verdict will be for the plaintiff and against the defendant.” (Emphasis ours.)

Defendant urges that it was error to include therein the italicized portion of the instruction, “or contributed to cause”. In Marsh v. Heerlein, Mo., 299 S.W.2d 441, 445, such language appeared in a similar instruction which was considered by the Supreme Court. The Court pointed out that “no causal conduct of any third party entered into the circumstances of the collision shown in evidence”. In the case here considered, there is no suggestion that any person or agency entered into the acts and circumstances that resulted in the casualty, other than plaintiff and defendant.

In this case, defendant offered, and the Court gave, instruction No. 5, which directed the jury’s attention to facts which, if the jury so found, would constitute contributory negligence barring plaintiff’s right to recover.

In such a situation, in the above cited case, the Court said:

“Nor was there a submission or evidence supporting a submission of any cause of the collision other than the evidence tending to show the causal negligence of defendant and plaintiff. Hence, the only cause which could have ‘contributed’ to cause the collision or injury, other than the negligence of defendant, was plaintiff’s negligence; and, consequently, the inclusion of the clause ‘or contributed to cause’ rendered the Instruction No. 1 erroneous, misleading, and in direct conflict with defendant’s Instruction No. 5, which latter instruction, as stated, submitted plaintiff’s contributory negligence. Moon v. St. Louis Transit Co., 247 Mo. 227, 152 S.W. 303; Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S.W. 78; Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S.W. 1166.”

Accordingly, we hold that the instruction is prejudicially erroneous.

The instruction is also criticised because it fails to negative defendant’s contributory negligence, citing the Supreme Court holding in Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 24.

However, the error discussed requires a reversal and remand, and it is unlikely that, in a new trial, the instruction will be offered in its present form. It is therefore, not necessary to discuss this latter contention.

There is no contention that the verdict is excessive and there appears no error in the trial except as to the instruction. For this reason the new trial, which must be ordered, should be limited to the issue of liability. Upon such retrial, if the verdict be for the plaintiff, the Court shall enter judgment for plaintiff in the sum of $6,000.00 against defendant. Hoffman v. The Kroger Company, Mo.App., 340 S.W.2d 152, 155; Rule 83.13, V.A.M.R.

The judgment is reversed and the cause is remanded for a new trial on the issue of liability only.

MAUGHMER, C., concurs.

PER CURIAM.

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

ON MOTION FOR REHEARING

PER CURIAM.

Plaintiff, in his motion for rehearing, says that we did not explicitly rule whether, as a matter of law, he could be guilty of contributory negligence. If, as a matter of law, he could not have been guilty of contributory negligence, we would have been bound to so rule in our opinion; and we ruled that matter to be one for the jury.

Whether a child has exercised ordinary care for his own safety in a given situation involves whether he had the capacity to do so. Unless he is exceedingly young, it is usually a question for the jury. Holmes v. Missouri Pacific Railway Company (In Banc), 190 Mo. 98, 88 S.W. 623, 624-625; Holmes v. Missouri Pacific Railway Company, 207 Mo. 149, 166, 105 S.W. 624; Doran v. Kansas City, 241 Mo.App. 156, 237 S.W.2d 907, 912. In Quirk v. Metropolitan Street Railway Company, 200 Mo.App. 585, 590, 210 S.W. 103, this court said in 1919 that a seven year old child, because of his tender years, was excused from con curring negligence. The authorities cited in support of that statement do not support it. Rather, the rule most widely followed in this country and supported by what we believe to be the better reasoned cases is that a seven year old boy may be guilty of contributory negligence, and that generally the question of his contributory negligence is a jury question. See, Hellstern v. Smelowitz, 17 N.J.Super. 366, 86 A.2d 265; Bush v. New Jersey & N. Y. Transit Co., 30 N.J. 345, 153 A.2d 28; Annotations, Contributory Negligence of Children, 174 A.L.R. 1128 and 107 A.L.R. 121; 2 Harper and James, The Law of Torts, Section 16.8, page 924 ff.; 1 Shearman and Redfield, on Negligence, (Rev.Ed.) Section 94, page 231; Prosser, Law of Torts, Section 31, page 128; Sweeney v. United States, D.C., 125 F.Supp. 864. And especially see, Butler v. Metropolitan St. Ry. Co., 117 Mo.App. 354, 93 S.W. 877(3); Hoagland v. Dunham, Mo.App., 186 S.W. 1145(6); Mullin v. St. Louis Transit Co., 196 Mo. 572, 94 S.W. 288 (6 year old child); Heinzle v. Metropolitan St. Ry. Co., 182 Mo. 528, 81 S.W. 848, 856 (5-6 year old child).

In this case, the question of plaintiff’s contributory negligence was for the jury. The motion for rehearing is overruled.