author: McDowell, judge.

text:
    In the Interest of Gunda BURGESS, Ralph Burgess, Faith Burgess, Loren Lee Burgess, and Billy Burgess, Children under 17 years of Age. STATE of Missouri, Harold S. Hutchison, Maries County Juvenile Officer, Petitioner, Respondent, v. Frank C. BURGESS, Respondent, Appellant.
    No. 8069.
    Springfield Court of Appeals. Missouri.
    July 30, 1962.

      Weldon Moore, Rolla, for appellant.
    Harold S. Hutchison, Pros. Atty. for Maries County, for respondent.
   McDowell, judge.

This is a statutory proceeding under the new Juvenile Act, [Sections 211.011 to 211.431], 1957 Cumulative pocket part to 12 V.A.M.S.; Laws of 1957, pp. 642-659, as amended by House Bill No. 437, Laws of Missouri 1959.

On July 10, 1961, Harold S. Hutchison, Juvenile Officer of Maries County, pursuant to prior authorization, filed a petition in the form prescribed by Section 211.284, Laws of Missouri 1959.

The first amended petition reads: “Comes now, Harold S. Hutchison, Juvenile Officer, within and for the county of Maries and State of Missouri, and upon his official oath informs the Court that Gunda Burgess, Ralph Burgess, Faith Burgess, Loren Lee Burgess and Billy Burgess, are presently residing in Maries County, Missouri, at the home of Frank C. Burgess and Helen Annette Burgess, foster parents of the above children near Hayden in Maries County, Missouri.

“2. That Gunda Burgess was bom November 17, 1947, and Ralph Burgess was born November 5, 1951, Faith Burgess was born August 10, 1953, Loren Lee Burgess was born October 13, 1954, and that Billy Burgess was born November 21, 1955.

“3. That the natural mother of the above named children is Margaret Bogner and that her last known address was in the suburb “of Schwabischall, Western Germany and that their father’s name is unknown but was purported to be an American soldier stationed in Germany and now in the United States.

“4. That the above named children were supposed to have been adopted in Germany and brought to the United States by their foster parents, Sgt. Frank C. Burgess and Helen Annette Burgess who are now residing near Hayden, Maries County, Missouri.

“5. That the above named children are without proper care, custody and support in that the foster father has been stationed at Ft. Leavenworth, Kansas, and for the past several months the foster mother has been working at Meta, Missouri, and leaving the children unattended from 10 to 12 hours a day — 5 to 6 days a week.

“6. That the behavior, environment and associations of the children are injurious to their welfare in that for the past two years the foster mother, Helen Annette Burgess has on repeated occasions inflicted excessive punishment on said children to the point where it endangered their life and limb.

“7. That the parents, being financially able have wilfully neglected to provide the children with the necessary subsistence, and other care necessary for their health, morals and welfare.

“WHEREFORE; your petitioner prays the court to take jurisdiction over the persons of said children and for such other and further orders as to the Court may seem just and proper.”

The cause was heard by the court and judgment rendered August 22, 1961, wherein the court found that a proper petition was authorized and filed by the Maries County Juvenile Officer; that summons was duly served on Frank C. Burgess and Helen Burgess, husband and wife, being the purported adoptive parents of the five children involved; that said children were purportedly adopted by Frank C. Burgess and Helen Burgess in West Germany and brought to this country; that Sgt. Burgess was then and is now a member of the U. S. Army, stationed at Fort Leavenworth, Kansas. The judgment states:

“It is found that during the time said children have been in the actual custody of Sgt. and Mrs. Burgess, they have been punished repeatedly in a cruel and inhuman manner leaving scars on the bodies of certain of the children and that the beatings “administered to the children, particularly the three oldest ones, by Mrs. Burgess caused two of the children, namely Ralph and Faith, to run away from home. That said older children appeared at school on repeated occasions with physical injuries they have now said were administered by Mrs. Burgess. It is found and determined that Mr. and Mrs. Burgess have wilfully neglected to offer and provide the children with proper and necessary parental care essential to the morals, health and welfare of said children; for all of which and in the best interest and welfare of said named five children the parental rights of Frank C. and Helen Burgess should be and same hereby are terminated.

“The guardianship and legal custody of said five named children are transferred to and vested in the State Division of Welfare, said children being made wards of this Court, and the Division of Welfare is authorized to place children in suitable home or homes, all until further order.”

From this judgment Frank C. Burgess and Helen Annette Burgess, parents of the above named children, filed notice of appeal to this court.

Respondent has filed a motion to dismiss this appeal on the ground that no appeal is provided by statute.

The sections of Chapter 211 RSMo 1959, V.A.M.S. relating to the termination of parental rights were enacted in 1959 by the General Assembly, Flouse Bill No. 437. At the time of the enactment of this amendment, section 211.261 of the revised statutes of Missouri, as amended, in 1957, provided:

“An appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of sections 211.-011 to 211.431 and may be taken on the part of the child by its parent, guardian, legal custodian, spouse, relative or next friend. An appeal shall be allowed to a parent from any final judgment, order or decree made under the provisions of sections 211.011 to 211.431 which adversely affect him. Notice of appeal shall be filed within thirty days after the final judgment, order or decree has been entered but neither the notice of appeal nor any motion filed subsequent to the final judgment acts as a supersedeas unless the court so orders.”

House Bill No. 437 enacted in 1959 merely amends Chapter 211 RSMo 1957 Supp., V.A.M.S. relating to delinquent children by adding seven new sections relating to the same subject matter and providing, in certain cases, for the termination by the juvenile court of parental rights to children. It, in no way, undertakes to repeal section 211.261 under which the right of appeal is given. The question was raised when the Revisor of Statutes in 1959 changed the reference from (this chapter) to (sections 211.011 to 211.431). Section 211.261, as contained in the 1957 Act, made reference in two places to (this act). However, the change from reference to (this chapter) to (sections 211.011 to 211.431) as published in the 1959 statutes, would certainly cover section 211.261 as contained in the Act of 1957.

The Revisor of Statutes, acting under authority granted in § 3.060 RSMo 1959, V.A.M.S., had no authority to alter the sense, meaning or effect of any legislative act but may renumber sections or parts of sections thereof, change the wording of headnotes, rearrange sections, change reference numbers or words to agree with renumbered chapters or sections, substitute the word “chapter” for “act” or “article” and the like.

The basic rule of the statutory construction is to seek the intention of lawmakers and, if possible, to effectuate that intention, and courts should ascertain legislative intent from words used if possible and should ascribe to language used its plain and rational meaning. State ex rel. Wright v. Carter, Mo.Sup., 319 S.W.2d 596; In Re Tompkins’ Estate, Mo.Sup., 341 S.W.2d 866; Wellston Fire Protection Dist. v. State Bank & Trust Co., Mo.App., 282 S.W.2d 171. See 26 Mo.Digest, Statutes, <®==*173, pages 42, 43, pocket part.

The history of legislation relating to neglected children prior to the enactment of these statutes has continuously afforded an appeal. We find there is nothing in the amended statute which would justify this court in holding that the legislative intent was to deny an appeal as provided in section 211.261 of the laws of Missouri 1957. The law favors constructions which harmonize with reason, and which tend to avoid unjust, absurd, unreasonable or confiscatory results or oppression. Kansas City v. Travelers Insurance Co., Mo.App., 284 S.W.2d 874, We find no merit in this contention.

The transcript of the record shows that Frank C. Burgess is a member of the armed services of the United States and is now stationed at Fort Leavenworth, Kansas; that in 1952 he was married to his present wife and shortly thereafter was sent to France where he was stationed for some three years. While in France he and his wife adopted Faith and Loren, two of the minor children involved in this proceeding, and brought them to this country in 1956 when he was transferred to Fort Leonard Wood. On their return, Mr. Burgess took his wife and the two adopted children to Oakland, California, to an aunt and he returned to Fort Leonard Wood where he was stationed from February, 1956, until August, 1960. His wife and children stayed in Oakland until the following June, 1957, when they returned to Missouri and the parties made their home in Dixon.

Gunda, Ralph and Billy, members of the same family as Faith and Loren, were adopted by Mr. and Mrs. Burgess in 1958 and Mr. Burgess brought them to this country March 17, 1959.

In August, 1960, Burgess was transferred to Fort Leavenworth, Kansas. He had put in an order to go back overseas but instead was transferred to Fort Leavenworth. He testified that it was now his intention to' move his family, including the children, to Fort Leavenworth.

Around December 15, 1960, Mrs. Burgess, acting for the family, purchased a* two and one-half acre tract of land out in the country about four miles east of Hay-' den, in Maries County, from a lady in California. The property contained a six room house, four rooms downstairs and two rooms' upstairs. Burgess testified that the property • was about a quarter of a mile off the Maries County road. The cost of the property was $1200, which the parties borrowed from a Mrs. Cory.

The State’s evidence consisted of a report made by the Director of Welfare of Maries County and the testimony of ten witnesses, covering some 140 pages. The, evidence is that Frank C. Burgess for more than a year prior to the filing of the petition in question was stationed at Fort Leavenworth, Kansas; that he was only, home during holidays, Christmas and Easter; that the custody of the children in question was entrusted to Mr. Burgess’ wife, Helen. Most of the time she and the children lived in or near Dixon, Missouri, but on December 15, 1960, she purchased a two and one-half acre tract of land four or five miles east of Hayden, about a quarter of a mile off the highway in a wooded area. The report of the welfare officer, who visited in the home, showed that the house in which they lived had four rooms, two bedrooms. The children attended school principally in Dixon. In May, Mrs. Burgess secured employment at Meta where she worked for about six weeks. During the term of the employment the children were left at home in the care of the oldest girl, Gunda, who was 12. Mrs. Burgess would get up at 5:00 o’clock, prepare her own breakfast and leave home by 6:00 and not return until 5:00 in the evening.

Gunda testified that her mother hit her in the face with her fist, threw her down on the gravel or rocks and broke a front tooth out. She showed the court the false tooth that replaced the one broken out. She stated that because she had not kept her drawer properly her mother threw her down on the rocks and sat on top of her; that that was when the tooth was knocked out; that the rocks cut her lip and made a big sore. She stated that her mother had hit her quite a few times and knocked out her teeth; that she would just hit them with anything she could get her hands on; that she not only hit her but also hit Faith and Ralph; that she did not hit the younger children so much. She testified that she did hit Billy with a board; that when Faith wet her pants she took the pants and rubbed the skin off of her face; that she had seen her mother knock Faith down on the concrete and cut her chin; that when Faith came out of the toilet her mother threw her down on the concrete floor and made a big scar on her face; that she took her hand and pushed her down on the concrete and that was what caused the scar. She also stated she was present when her mother shoved Faith’s face down in a tub of ice water and held her face under because she had spilled some water on the floor; that she then took Faith’s clothes off and made her carry in wood naked while there was snow on the ground. She testified that Faith still had a scar over her left eye from the injuries received when her mother pushed her head in the water. She gave this testimony:

“Q. Now, have you seen your mother strike Ralph with a — any board or a fist or anything ? A. With her hammer and screwdriver and hoe and * * * I can’t remember.”

She said when Ralph did not fix the garden right her mother took the hoe and hit him over the head with it; that she had seen her hit Ralph with a board. She said the time Ralph ran away her mother had hit him with a board that held the window open; that that was the day after she had pushed Faith into the dresser and blacked her eye and Faith had run off.

On cross examination she admitted that her parents had bought clothing, toys, dishes and dolls, for the children; that Faith had a bicycle, Billy and Lonnie had tricycles; that they were given to them at Christmas. She admitted they had plenty of food. She testified that it was when Faith had folded pillow cases that her mother had banged her into the dresser; that she did it quite a few times; each time Faith’s head hit the dresser. She stated her father had whipped her but not very many times; that he whipped her with a switch; that when he corrected the other children he used reasonable punishment.

Ralph Burgess testified that he is in the fourth grade in school, nine years old; that he had been in this country two years; that he came over with Billy and Gunda. He said his parents were at that time living in Dixon but the next day after he arrived they moved to the country and he went to another school, then came back and went to Dixon school. At the time he came over he testified his father was in Fort Leonard Wood but, later, went to Ft. Leavenworth, Kansas, where he is now. He testified that his father left all five children with his mother out in the country; that later they moved over around Hayden in Maries County and his mother changed them from the Dixon school to a school in Maries County; that she got a job at Meta in a factory ; that she would go to work about 6:00 o’clock in the morning and return about 5:00 or 6:00 o’clock in the evening; that the five children stayed out in the country by themselves and Gunda did the cooking. He said they went over to the neighbors sometimes to get milk and to play with their children.

He stated that the day before he ran away on the 3rd of July, his mother whipped him, first with a board and then with a switch; that she hit him on the legs and head and he had a bandage on his head where he was cut. He testified that one day he opened the back door and it came loose; that she hammered the door shut and then hit him on the head with the hammer and hit him with the steel part in the stomach and he lost his breath. He gave this answer: “Yeah, she hit all us three with the hammer on the head. She said she’s going to hit us in the head with a hammer because she asked her who put that blue dishpan with the stuff in it, and so she — she—she said if she’s gonna hit — hit us all, every one of us in the head with the hammer until we tell her. So we all didn’t do it. So she hit us in the head with a hammer. She was gonna hit us again so I said I did it. So she took the hammer and hit me on the head all the ways and I ran to empty it.”

“Q. Now, Ralph, tell the Judge how often would she — how often would she whip you in the two years you’ve been over here, how often has she whipped you ? A. Well, she just about whipped us every day, just about, but not every day, but a week, in the middle, Saturdays mostly.
“Q. And what would she generally whip you with? A. A board. And then Miss Sigler told her about the switch and she started using the switch and board both. Once I had to eat a watermelon rind, rind and all, because I didn’t — she didn’t tell, me that she was going to make them out of pickles. So I took quite a few watermelons and threw them over the chicken pens because that’s where we keep them all the time. So I threw it over there, and she asked me what I did with my watermelon rind, and I said, ‘I threw it over the chicken pen’. And she said, ‘Go out there and get it.’ So I did.” He testified she made him eat these rinds; that she gave him five minutes to eat them and she said if I didn’t eat them within that time she would poke them down me and hit me with a piece of wood from behind the stove.

He testified that he heard the testimony of his teachers about him coming to school with blue marks and a cut on his face. He said he got the marks when his mother slapped him off the piano bench when he didn’t play the notes right; that when he went to school the next day Mrs. Bremer saw the markings; that he had gone to school other times with marks on him where his mother had hit him and the teacher saw every one of them. He testified that he had seen his mother hit Gunda with a board and with her fist and also had seen her hit Faith in the face with her fist.

Witness testified that his father was present sometimes when his mother beat him with a board. He said the first time when she beat him on the head it started to bleed and his father told her to stop but she just kept on and finally he stood up and said “Now, quit, that’s enough”. He stated he ran from her; that she caught him and beat him on the head with a board and his daddy wrapped it up for him. He testified his mother said she was going to send him to an orphanage and that night he slept in the car. He testified that his father was nice to them until he came back from Kansas, when he started beating them with a board. He said his father came back on June 30th before he ran away on July 3rd; that he beat him twice before he ran away.

Faith Burgess testified that she is eight years of age; that she went to school in Dixon; that since her parents have moved into Maries County she had been going to school over there. She said she was in the second grade and would be in the third next year. She testified that Mrs. Opperman and Mrs. Bremer were her teachers in Dixon; that she heard her teachers tell about her nose and cheeks being skinned up and that it was done by her mother. She said her mother had rubbed her wet pants over her face until it was all raw. She stated that one time she was dusting and had to go to the bathroom but her mother said she couldn’t until she had finished; that she ran to the concrete porch and her mother pushed her down on her chin. She showed the court the scar on her chin that was caused by the fall. She testified she spilled water one time on the floor and her mother pushed her head down in a barrel of ice water and held it under the water; that the reason she did this was because she spilled a little water when she was writing on a blackboard and her mother grabbed her and stuck her head down in the rain barrel and cut her face on the barrel; that the scar on her face was caused by that injury; that her mother had struck her in the face other times with a stick or board or anything.

Witness stated when she came down to Mr. Hutchison’s office she had a black eye and a cut over her left eye. She said she had folded some pillow cases and did not fold them right; that her mother then pushed her against the knob of the dresser several times; that this caused her to have the black eye and cut over her left eye. She testified she had gone to school before this time with black eyes caused when her mother would hit her in the face with her fist. She stated she would have to stay out of school several days at a time because of her black eyes and scabs on her face; that her mother had told her to say she fell down and she stated she would say she bumped it. She stated that her mother threatened to beat her if she told what caused the wounds; that the day she ran away from home her mother said she was going to send her to an orphanage and had her get all her clothes ready. She said the reason she ran away was because of the beating her mother had given her with a board on her legs.

Sheriff Shockley testified that he was called to Hayden’s store on July 4th and there picked up Ralph Burgess; that at the time he observed bruised places on the back of his legs and a cut on his forehead; that the boy told him he was afraid to go back home. The sheriff turned the boy over to Mr. Hutchison, Juvenile Court officer who called in Mrs. Elley, Welfare Director of Maries County; that Mr. Burgess was likewise called and he brought in the rest of the children. The sheriff testified he was present when the other children came in and observed that Faith had a cut over her left eye and it was all black.

Marguerite Elley testified that she was Director of the County Welfare Office of Maries County and was present in the office of the Juvenile Court officer and there talked to Ralph Burgess; that he had blue stripes on the calves of his legs, behind his knees, a cut on the top of his head and a large lump on the back of his head; that the boy told her these injuries were caused when his mother whipped him with a board. She testified that the bruises and welts were still in evidence. She said she was present when Mr. and Mrs. Burgess brought the other children into the office; that she had Gunda, Ralph, Faith and Loren go down to her office where she was joined by the sheriff and the juvenile court officer. She stated Ralph spoke only of being beaten on his legs with a board; that Gunda, Faith and Loren stated their mother had whipped Ralph and that she always whipped them with a board; that Faith had run away a day or two before Ralph but she got lost and returned. She testified that the children told her that Faith’s black eye was caused because she had folded the pillow cases lengthwise; that her mother had requested they be folded crosswise; that when the mother found Faith putting them in the drawer she bumped her head against the dresser or chest of drawers. She stated Faith’s eye was swollen, bruised clear down below her cheek bone and there was a small cut in the eye brow; that her eye was completely black. She said the reason the children were absent from school was because of the beatings received from their mother. She described the home in which the mother and children lived as being a small four room house, two bedrooms, in a remote area where it was very rough and wooded.

Leroy Opperman, Principal in the Dixon schools testified that Faith and Gunda attended the school where he taught; that during the second month of the last school year Faith came to school with the skin rubbed off her nose and her check and nose were almost a solid scab; that she had been out of school all of the preceding week. He testified that he observed Faith and Ralph coming to school with injuries on their faces numerous times; that it appeared to him there was never a week or two at the most that there weren’t some bruises or cuts on their faces. His testimony was that the children would be absent from school from five to eight days before they would come back with bruises on their faces lots of times; that their faces were bandaged so the teachers could not see exactly the extent of the injuries; that Faith’s eye and under her eye brow and chin were bandaged but you could see the bruises on them. He said Ralph came to school with bruised cheeks and Faith with black eyes; that Ralph’s injuries seemed to be finger marks. The school attendance records were offered in evidence showing the children were out of school most of the time. Sometimes they were out the entire month. Witness testified that Mrs. Burgess would write and say she feared Faith had rheumatic fever and that Major Purcell had ordered her to bed; that he called Fort Leonard Wood and found that Purcell was a nurse and that she denied she had ordered the child to bed. He stated that Faith had more cuts and bruises than the others.

Witness stated that because of the injuries appearing on the children he contacted Mrs. Benage, county health nurse, and asked her to visit in the home; that she made her report that the mother was trying to discipline them too severely. All of the evidence was that the children were well behaved and their conduct was good, both at school and on the bus from school to their home.

Helen Opperman, a first grade teacher in Dixon schools, testified that she had Faith in her class in the year 1959-60. She described the injuries to Faith’s nose and cheeks; that the child told her she had wet her pants and her mother had rubbed her nose in it. She said her cheeks were bruised and the skin was about all off her nose and her face just looked bruised. When asked how many times she had come to school with bruises she stated it was hard to tell but would say six to eight times and maybe more. She testified that Ralph was in the second grade; that he came to school with one eye extremely black and with bruises across his face; that he was out of school several times because of an injury to his foot. She said Faith came to school with blood in the wrinkles around her mouth and she said it was caused by her mother forcing her to eat ice cream. She corroborated her husband’s testimony that Faith’s attendance was not regular. She said she reported the condition of the children to the principal. She examined the scab on Faith’s face and testified that it extended from between the eyes to the tip of her nose; that it was sore, maybe solid, all through the cheek. She stated that other times she had observed bandages on each of Faith’s eyebrows and said that the children were well behaved and there was no disciplinary problem with them in the school.

Mrs. Bremer, a teacher in the Dixon schools, testified that both Faith and Ralph attended her classes; that she observed these children on various occasions coming to school with cuts and bruises on them; that Faith came with her eyes blacked. She said this happened many times. She observed the cuts on Faith’s chin and top of her head. She said she came to school with scabs on her cheeks and nose. She gave this answer: “Practically the whole time she was in my room she had scars on her face”. She was unable to say the exact number of days the children were absent but she said they we*e absent more or less continuously during the two years. She particularly remembered slap marks across Ralph’s eyes and on his face. She said the marks were blue or black and his eyes were black and she testified that this wasn’t the only occasion she had noticed injuries on him; that there were other times when he was skinned. She said Ralph would be absent from school frequently and when he would return he would have these injuries. She testified she talked to Mrs. Burgess in the park; that Mrs. Burgess told her that Faith did not want to come to school; that she had piddled around and missed the bus and, as a punishment she made her clean out the outdoor toilet and she said she was going to take her home and make her move a woodpile. She testified that Faith told her she wanted to come to school; that after the talk Mrs. Burgess came to the school and asked for Faith’s things; that when she asked what Faith was going to do Mrs. Burgess told her it was none of her business ; that Faith never came back to school.

Mrs. Eunice Sooter, a housewife, testified that when she went to pick up her daughter at school she saw Faith with her face and cheeks all skinned up; that she had a conversation with Mrs. Burgess about it and she stated Faith had a habit of wetting her pants so she just took them off, they were heavy cotton pants, and rubbed the hide off of her nose with them.

The testimony of appellants was principally a denial of the charges made but Mrs. Burgess did admit that she had broken Faith’s arm but stated she was playing with her when she did it.

Appellant, Frank C. Burgess, urged only one point in his brief: That the court erred in terminating the parental rights of Frank C. Burgess individually and in terminating the parental rights of Frank C. Burgess and Helen Burgess, parents of the children, because:

A. The evidence failed to show that the parents or either of them, being financially able, have willfully neglected to provide the children with necessary subsistence and other care necessary for their health, morals or welfare for one year or more immediately prior to the filing of the petition.

B. There is not sufficient evidence to sustain the judgment terminating the parental rights of Frank C. Burgess.

C. There is not sufficient evidence to sustain the judgment terminating the parental rights of Frank C. Burgess and Flelen Burgess.

D. Neither the petition nor the first amended petition requested parental rights be terminated nor did the petition or the first amended petition indicate such request or state the reasons why such termination was sought.

Our review of the proceedings is accordingly limited to these matters which are the only points contained in appellant’s brief under points and authorities. Sykes v. Stix, Baer & Fuller Co., Mo.App., 238 S.W.2d 918, 920 [6]; State v. Couch, Mo.App., 294 S.W.2d 636, 638 [1].

On appeal in neglected child cases, reviewing court examines the record, bearing in mind that deference must be extended, especially on credibility, to trial court’s point of vantage in seeing and hearing the witnesses. State v. Greer, Mo.App., 311 S.W.2d 49, 50 [3-6]; Rex v. Rex, Mo.App., 217 S.W.2d 391, 393, 394. We also indulge the presumption that the court’s decision was motivated by what is believed was best for the child. We are mindful that parents are not to be deprived of care, companionship and responsibility of their child except for grave reasons and such as are authorized by legislative enactment. The law was stated by this court in Edwards v. Engledorf, Mo.App., 192 S.W.2d 31, 33, that:

“The presumption is that the best interest of the child is to be in the custody of the parent * * *.

“The parents have a right to the custody of their children by nature and by law, which rights should never be denied except for the most cogent reasons, * *

The petition by the State in this case is founded on § 211.283, H.B. 437, Laws 1959, carried in the Revised Statutes 1959 as § 211.441, and reads:

“Court may terminate rights, when — consent, how established.—

“1. The juvenile court may, upon petition filed as provided in other cases of children coming under the jurisdiction of the court, terminate all rights of parents to a child when it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist:

“(1) When the parents have consented in writing to the termination of their parental rights.

“(2) When it appears by clear, cogent and convincing evidence that for one year or more immediately prior to the filing of the petition

“(a) The parents have abandoned the child;

“(b) The parents have willfully, substantially and continuously or repeatedly neglected the child and refused to give the child necessary care and protection;

“(c) The parents, being financially able, have willfully neglected to provide the child with the necessary subsistence, education or other care necessary for his health, morals or welfare or have neglected to pay for such subsistence, education or other care when legal custody of the child is lodged with others;

“(d) The parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well-being of the child;

“(e) The parents have been found incompetent under chapter 475 RSMo, and are incapable, and there are reasonable grounds to believe that they will continue to be incapable of giving the child necessary care and protection. * * * ”

Section 211.284, H.B. 437, Laws 1959, carried in the Revised Statutes of Missouri 1959 as § 211.451 provides:

“The petition for termination of parental rights shall include:

“(a) the name, sex, and date and place of birth and residence of the child,

“(b) the relationship of the petitioner to the child, or the fact that no relationship exists,

“(c) the name and address and date of birth of the mother if the child was born out of wedlock, and the father of a child born out of wedlock who has acknowledged paternity of the child in writing or has been adjudged the father, or the names and addresses and dates of birth of the parents of the child if born in wedlock,

"(d) the name and address of the person holding legal custody or guardianship of the person, or acting in loco parentis, or the organization or agency holding legal custody of providing care for the child,

“(e) the reason or reasons why termination of the parental rights is sought.”

Section 211.285, H.B. 437, Laws 1959, (§ 211.461 RSMo 1959, V.A.M.S.) provides for the hearing and summons of persons in the termination of parental rights.

An examination of the petition shows that the pleader complied with the requirements of the statute for the termination of parental rights. The reason or reasons why termination of parental rights was sought is set out in the petition in paragraphs 5, 6, and 7. The transcript of the record shows that the requirements of § 211.285, H.B. 437, Laws 1959, (§ 211.461 RSMo 1959, V.A.M.S.) have been complied with.

Under the evidence we find that the parents have willfully neglected to provide the children with care necessary for their health, morals or welfare for one year or more immediately prior to the filing of the petition. We find there was substantial evidence to sustain the judgment terminating the parental rights of Frank C. Burgess and the parental right of his wife, Helen Burgess. Especially, do we find that under provisions of section 211.283(b), H.B. 437, Laws 1959, the parents have willfully, substantially and continuously or repeatedly neglected the children and refused to give them necessary care and protection.

The custody of these children at least for more than one year while Frank C. Burgess was stationed in Leavenworth, Kansas, as a member of the army, has been in the care of Mrs. Burgess. These five children have been punished repeatedly in a cruel and inhuman manner, leaving scars on the bodies of the three oldest children which caused two of the children, Ralph and Faith, to run away from home. The evidence by appellant’s witness, a neighbor living a half mile from the home, stated that Gunda, while in his home, cried and said that somebody would have to help them because Mrs. Burgess was so mean. We agree with the decision of the trial court that Mrs. Burgess willfully neglected to provide the children with “proper and necessary parental care essential to the morals, health and welfare of said children” and that the court was justified in finding that it was in the best interest and welfare of said children that the parental rights of Frank C. and Helen Burgess should be terminated.

We did not set out all of the facts. While the evidence disclosed that proper clothing and food was furnished these minor children it also disclosed that the home, bought by Mrs. Burgess, was not paid for; that she borrowed all the money from a neighbor, Mrs. Cory, to pay for the same and there is still more than $1,000 due; that most of the fixtures and furniture in the home were bought on the in-stalment plan and have been turned back to the sellers; that all of the household goods have been packed for removal to Fort Leavenworth, Kansas, out of this state. The evidence is that the children have been placed in a suitable home and are now happy and contented. We find no merit in the alleged errors of appellants.

The judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Vesta CROSS, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Missouri, a Division of the Department of Labor and Industrial Relations; June R. Rose, George W. Wise and Chas. E. Cates, Members, and Division of Employment Security, Defendants-Appellants.
    No. 8077.
    Springfield Court of Appeals. Missouri.
    Aug. 9, 1962.

      Gordon P. Weir, George Schwartz, Jefferson City, for appellant Division of Employment Security.
    Lloyd G. Poole, Jefferson City, for appellant Industrial Commission.
    Moore, Pettit & Steinle, J. Hal Moore, Aurora, for claimant-respondent.
   McDowell, judge.

This is an appeal from an order and judgment of reversal and remand rendered in an action to review the decision of the Industrial Commission of Missouri, Division of Employment Security, denying unemployment benefits to claimant.

Claimant, Vesta Cross, filed her initial claim under the Missouri Employment Sc-curity Law effective February 28, 1960, and, thereafter, claimed benefits through September 17, 1960. A deputy determined that claimant was ineligible for benefits from July 31st to August 17, 1960, based on a finding that she was not available for work. Claimant appealed from the deputy’s determination September 1, 1960, claiming she had contacted all place that she felt she could handle work and had been available at all times; that she cannot drive to work at a lower wage scale.

A hearing was had September 28, 1960, before an Appeals Referee. Evidence was heard, findings made and the deputy’s decision affirmed. Application to have the decision of the Appeals Tribunal reviewed by the Industrial Commission was filed October 19, 1960. The application for review stated that the Referee’s decision was not supported by sufficient legal facts and testimony.

The Commission’s decision, dated February 3, 1961, modified the Appeals Tribunal’s decision and denied claimant benefits from July 31, 1960 to September 17, 1960. The instant action for review was thereafter instituted. The reviewing Circuit Court found that the decision of the Industrial Commission of Missouri was unsupported by competent and substantial evidence and reversed and remanded the cause to the Commission for further proceedings according to law.

On October 12, 1961, the Division of Employment Security and Industrial Commission of Missouri appealed to this court.

The full record of this appeal consists of the transcript of the Circuit Court proceedings and a transcript of administrative proceedings. In our opinion we will refer to the Industrial Commission of Missouri as the “Commission”; the Division of Employment Security as the “Division”, and to respondent, Vesta Cross, as “claimant”, the terms used in the administrative proceedings.

Claimant testified that she is not employed at the present time; that she lives on Route 1, Marionville, Missouri; that her last employment was with Western Light & Telephone Company where she had worked for ten years as telephone operator, both local and long distance; that her employment was terminated February 25th this year; that she is 52 years of age and the last wages she received was $1.39 per hour. She said this was the only type work she had ever done; that she completed her Sophomore year in school. She testified she had not worked since February 27th of this year; that during the weeks for which she filed claims subsequent to July 31st she had been physically able to work during each of those weeks for which she filed claims; that during those weeks she had tried to get work; that she had applied at the stores, ABC Store in Aurora as a salesclerk. She gave this testimony:

“Q. What would have been the lowest wage you would have accepted? A. One dollar an hour.”

She testified she wanted to work; that she had had no experience at sales work; that during the weeks under review she tried to get work twice each week. She testified:

“Q. Why did you try to get work at only two places each week if you wanted work, Mrs. Cross? A. Well, * * * Just to try to get a position of some kind.”

She stated she had listed on the back of her weekly claim forms the places where she had tried to get work each week and that she visited all the places. She listed on her claim card for the week of August 6th the names of Dryer’s Shoe and Western Light & Telephone. She stated her applications for work were just made orally; that she just went to the places. She said if she had gotten employment at Dryer’s Shoe Company she did not know what the starting wage would be. On the back of her claim form for week ending August 13th she listed Hughes Drug and Western Light & Telephone Company. She did. not know but thought the starting wage at Hughes Drug was fifty cents an hour. Her claim form ending August 20th listed Aurora Hospital and Hubbs Propane. She did not know the starting wage. She stated she had applied for work as a PBX operator. She admitted that workers at this job donated their services but stated she applied for a salaried job. On her claim for the week ending August 27th she listed the names of Dryer’s Shoe and Western Light & Telephone Company. These are the same two places where she had previously applied. For the week ending September 3rd she listed Bradford Surridge, a funeral home in Marionville, where she applied for a job as receptionist. She admitted they did not have full time receptionists but thought they might have. She stated she lived near Marionville. She also listed ABC Store in Aurora, a dry goods store, for clerk work. She testified that on the week ending September 10th she had listed Hughes Drug which was the same store where she had previously applied and she listed Ben Franklin Store where she applied for work as a clerk. She did not know the starting wage at these places. On her card for the week ending September 17th she listed McWade Jewelry and Rowland Store, applying for job as clerk in both places but she did not know the starting wage. She gave this testimony:

“Q. Do you know generally what the starting wage is in the type of businesses where you applied for work? A. No, I really don’t.”

Her testimony was that there was nothing to prevent her from accepting work during any of the weeks for which she filed claims.

Claimant stated she lived on a farm of 180 acres; that her hours, while at the Telephone Company, were from 6:30 in the morning until 3:30 in the afternoon and this employment did not interfere with her farm operations; that she could have taken a job as clerk in a retail store, even though it required standing. She said her work at the telephone office was a sitting job; that she couldn’t stand all the time because she had trouble with her feet.

On examination by her attorney she testified she had tried to get employment at thirteen different places while drawing unemployment compensation; that she also inquired about work from her friends and acquaintances. She testified that she asked at the Division of Unemployment about work; that they didn’t have anything except they did call her to go to the chicken plant but she couldn’t do that work; that she could not stand on concrete floors and besides it made her sick to be around that kind of work. She said if she had gone to work there they only had about two weeks work; that the plant closed down shortly after she had been told about it.

Her evidence is that she had never worked in a chicken plant, factory or anything like that before; that the only work she had ever done was for the telephone company except one time she worked a short while at a shirt factory in Marionville. She stated she tried to get employment in business places in Aurora and would have accepted work even if the wage was less than a dollar an hour.

Mr. Cummings testified that he is employed by the Missouri Division of Employment Security, as manager of the Monett office and has been so employed for fifteen years. He stated that his work consisted primarily of application taking, classification according to experiences and interests and training, determination of wage or type of work restrictions, the information that is necessary to give consideration to applicants for jobs, trying to match the worker classifications and qualifications with those of the employer’s job orders. He stated that his service primarily was in Barry and Lawrence Counties, which includes Aurora, Marionville, Billings and other towns in that area.

He stated he was acquainted with the condition of labor in those areas; that he serviced the major employers in Aurora, those being the Juvenile Shoe Corporation of America, two plants; that there are also approximately five or six major plants or industries there, including Midwest Map Company, employing some 110 to 115 people; Producers Creamery, with some 100 people; a garment industry with around 25 to 30 people; a plant in Marionville employing some 55 people. There is an electrical appliance manufacturing company with some 130 employees and other smaller plants and service establishments. He testified that he determines something of the rates being paid for work. In Aurora proper starting wage rates for sales and service establishments vary from fifty cents per hour to $35.00 per week; that factory production jobs start somewhere around an average of $1.00 an hour with most companies having a periodic increase or incentive rate — piecework rates thereafter. He listed five major plants in Aurora and testified there were other smaller plants. He stated the other places of business would include generally those where Mrs. Cross said she had applied for work. He admitted he talked to claimant about jobs in places he had named. He testified that claimant told him she preferred saleswork at a minimum rate of $1.39 an hour. This conversation took place August 15th.

On cross examination the witness admitted he did not know what the businesses paid for their help where claimant had applied. He testified that among the employers in Aurora who were seeking help was Southwest Manufacturing Company, a shoe factory. He also named Uncle Zeke’s. He said he had a standing order at the present time for work as waitresses, cooks, dishwashers and general type of work found in a restaurant; that the prevailing type of this kind of work was fifty cents per hour and up, depending on experience.

The Commission examined the record of this claim, reviewed the evidence and appropriate provisions of the law and entered its finding as follows, to-wit:

“For ten years or until September 27, 1960, the claimant worked as a central office operator in a telephone exchange in Aurora, Missouri. She is 52 years of age. She was laid off for lack of work at the time the telephone exchange was converted to dial system. The claimant’s last rate of pay was $1.39 an hour. She has had no other significant employment experience. She completed two years of high school education.

“The claimant resides on a farm a few miles from Aurora, Missouri. She has transportation to and from work in Aurora where she prefers to secure employment. Aurora, Missouri, has a population of about 4,500. During the weeks under review the claimant applied for work at only two places on one day in each week. She applied for work at some of the places on several previous occasions. During the seven weeks under review the claimant applied for work at nine different establishments. She testified that she inquired for work as a sales clerk, as a receptionist, as an office clerk and as a PBX operator. She further stated that she was willing to accept work at the prevailing wage. There are several factories in Aurora where many women are employed, but the claimant did not apply for work at such places because she believed that she would not be hired because of her age. She made no inquiries for work at any of the restaurants at Aurora. The claimant made one inquiry about work in Marionville, Missouri, which is nearby to claimant’s place of residence. She has also inquired about work among her friends.

“The Missouri Employment Security Law provides that for a claimant to be eligible for benefits she must he able to work and available for work, and to be deemed available for work she must be actively and earnestly seeking work.

“The Commission is of the opinion that a claimant to be available for work must sincerely want work and must act reasonably for one in her circumstances to relieve her unemployment. It has been held that an individual who has been unemployed for a long period of time must make a greater effort to secure employment than an individual who has been unemployed temporarily or for a relatively short time, and furthermore, as a claimant’s period of unemployment continues, it is reasonable to expect her to expand her field or area in which she seeks work.

“The claimant made only two applications in person for work each week, and she applied for work on only one day in each week. Of these applications, some were made at places where she had previously applied, although there was an indication that she had no prospect of securing work at these establishments. During the seven weeks under review, the claimant applied for work at only nine places. She made no inquiries at several factories and restaurants in the immediate area which employed many female workers. Considering all the circumstances, the Commission believes that the claimant did not act reasonably for one in her circumstances to relieve her unemployment and that the claimant had not made a reasonably active and earnest search for work. The Commission, therefore, finds that the claimant was not available for work for the weeks claimed between July 31, 1960 and September 17, 1960.

“The decision of the Appeals Tribunal is modified. The claimant is denied benefits from July 31, 1960 to September 17, 1960.”

Error is assigned to the judgment of the trial court reversing and remanding the cause to the Industrial Commission for further proceedings because the findings and final award of the Commission is unsupported by substantial and competent evidence.

In passing upon the issue here presented it is our duty to decide from the whole of the evidence whether the Commission could reasonably have found against claimant as it did. We are not to set aside that finding unless it was clearly contrary to the overwhelming weight of the evidence. Meyer v. Industrial Commission of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835, 839 [4]; Const.Mo.1945, Art. V, Sec. 22, Mo.R.S.A., V.A.M.S.; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Union-May-Stern Company v. Industrial Commission, Mo.App., 273 S.W.2d 766, 768. This does not mean that we are to arrive at our conclusion solely upon the review of the whole evidence and with a total disregard of the fact that the Commission made its final award against claimant and thereby substitute our judgment on the evidence for that of the administrative tribunal. Kilgore v. Industrial Commission, Mo.App., 337 S.W.2d 91, 97 [1]; Kansas City v. Rooney, 363 Mo. 902, [en banc] 254 S.W.2d 626, 628; Moore v. International Shoe Co., Mo.App., 213 S.W.2d 215, 220 [1-3].

Section 288.040 RSMo 1959, V.A.M.S.— Unemployed worker eligible for benefits, when — provides: “1. A claimant who is unemployed and has been determined to be an insured worker shall be eligible for benefits for any week only if the deputy finds that

“(1) He has registered for work at and thereafter has continued to report at an employment office in accordance with such regulations as the division may prescribe;

“(2) He is able to work and is available for work; provided, however, that no person' shall be deemed available for work unless he has been and is actively seeking work; * * *.”

In Section 288.210 RSMo 1959, V.A.M.S., it is provided: “* * * In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”

The burden of proof to establish the right of claimant to benefits under the Unemployment Compensation Law rests upon claimant. § 288.010 et seq. RSMo 1949, amended Laws 1951, p. 564, V.A.M.S.; Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 291 S.W.2d 166, 173 [2,3]. The commission’s finding of facts is conclusive if supported by substantial evidence, and in determining the sufficiency of the evidence it must be considered in the light most favorable to the finding. Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577, 579 [1]; Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 S.W.2d 201, 203; State ex rel. Bond v. Simmons, Mo.App., 299 S.W.2d 540, 542.

The evidence which support the ultimate facts is what concerns us on appeal. Krisman v. Unemployment Compensation Comm., 351 Mo. 18, 171 S.W.2d 575, 578 [8]; Bussmann Mfg. Co. v. Industrial Com’n of Missouri, Mo.App., 327 S.W.2d 487, 491 [7-9].

The law was stated in Meyer v. Industrial Commission of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835, 840 [7] that it frequently happens that there is no testimony in the case other than that of claimant, but if from that testimony two different conclusions or inferences may be drawn as to the ultimate fact at issue, each of such conclusions or inferences being consistent with the testimony, and each inconsistent with the other, it remains for the triers of the facts to determine the issue and draw the inference and it does not become a question of law. The triers of fact, being faced with the witness or witnesses, may believe a part of the testimony and disbelieve another part; or they may draw an inference from the facts different from the inference that the court would draw.

The sole question in this case is whether the Commission could have reasonably made its findings and reached its result upon the consideration of the evidence before it. We must decide whether its findings are supported by competent and substantial evidence upon the whole record. Box v. Morrison, Mo.App., 230 S.W.2d 873, 874 [1]; Const. Mo. 1945, Art. V, Sec. 22, Mo. RSA; Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 S.W.2d 201, 203 [1-3].

Appellants, Industrial Commission of Missouri and the Missouri Division of Employment Security, take the position that the decision of the Commission, dated February 3, 1961, involving a claim for unemployment compensation benefits under the Missouri Employment Security Law, in which claimant, Vesta Cross, was held ineligible for waiting week credit for benefits for the weeks claimed between July 31, 1960, and September 17, 1960, because of her total unemployment between these dates was due to claimant’s unavailability for work due to her failure to make an active and earnest search for work. The Commission is of the opinion that a claimant, to be available for work, must sincerely want work and must act reasonably for one in her circumstances to relieve her unemployment.

We find from an examination of the record testimony that the Commission made a fair statement of the ultimate facts in issue and from these facts denied benefits from August 7, 1960, to September 17, 1960. Claimant had worked for ten years, until September 27, 1960, in the Western Light & Telephone office in Aurora. She is 52 years of age and was laid off because the telephone exchange was converted to a dial system. She has had no other significant experience. She completed two years of high school education. Her evidence is that she lives on a farm a few miles from Aurora and has transportation to and from her work in Aurora, a city with a population of about 4500 people. During the weeks under review claimant applied for work at two places on the same day in each week. During the seven weeks under review claimant applied for work at nine different establishments. She testified that she had inquired for work as a salesclerk, as a receptionist and an office clerk as well as a PBX operator and stated she was willing to accept work at the prevailing wage.

Her testimony was that she listed on the back of each weekly claim form the places where she applied for work. On the claim for the week ending August 6th she listed the names of Dryer’s Shoe and Western Light & Telephone. She stated she just applied orally for work by going to the various places. The claim for the week ending August 13th she listed Hughes Drug and Western Light & Telephone Company; for the week ending August 20th she listed Aurora Hospital and Hubbs Propane; for the week ending August 27th she listed Dryer’s Shoe and Western Light & Telephone. She admitted that these two places listed were where she had previously applied. For the week ending September 3rd, she listed Bradford Surridge, a funeral home in Marionville and ABC Store in Aurora. She stated she applied for a receptionist’s job in the funeral home; that they did not have a full time receptionist. On September 10th she listed Hughes Drug and Ben Franklin Store. She had previously listed Hughes Drug. She stated she applied for work as a clerk in the last two named places; that she could have taken a job in a retail store as clerk. She admitted she could not accept work where she had to stand all the time as she had trouble with her feet. She testified that she asked at the Division of Employment if they had any work and was informed they did not have any place except at a chicken plant where she would have to stand on a concrete floor and she stated she could not take this job because that kind of work made her sick.

Her evidence is that she never worked for wages except for the telephone company and a short time at a shirt factory in Marionville.

There was evidence that there were numerous businesses in and around Aurora where women worked. Claimant made no application to any of them. The evidence was that there were restaurants seeking employees during the seven weeks involved in claimant’s claim. Claimant’s evidence shows that during the seven weeks involved she made applications for work at nine places. The claim cards she filed show that many of these applications were made to the same employer and there was no evidence that the places where she tried to get employment were in need of employees. Her application for a position in a business in Marionville shows that the employees at that place worked gratuitously. In one of the places she sought employment as a receptionist, her evidence shows that the employer did not keep a regular receptionist.

Under all of the evidence we find that there was substantial evidence to support the finding of the Commission that claimant was not available for work and did not actively and earnestly seek work as required by the statute for the weeks involved.

Judgment of the trial court reversed with directions that the finding and award of the Industrial Commission be affirmed.

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


author: McDOWELL, Judge.

text:
    Vada Victoria SCOTTON, Plaintiff-Appellant, v. Clinton Ralph SCOTTON, Defendant-Respondent.
    No. 8117.
    Springfield Court of Appeals. Missouri.
    Aug. 14, 1962.

      William A. Moon, Springfield, for appellant.
    No Appearance for respondent.
   McDOWELL, Judge.

Plaintiff, Vada Victoria Scotton, appeals-from a judgment of the Circuit Court of Greene County dismissing her petition for divorce for lack of one year’s residency in Greene County and the state of Missouri and lack of jurisdiction of the court.

The petition was filed October 18, 1961, against defendant, Clinton Ralph Scotton. It was in conventional form and supported by affidavit for divorce executed by plaintiff. It alleged the lawful marriage of the parties at Plymouth, Indiana, on August 20, 1945, and a final separation for alleged indignities specified and that plaintiff is now a resident of Greene County, Missouri, and that she has resided within the state for more than one whole year next before the filing of the petition; that defendant is a non-resident of the state of Missouri, and his present address is unknown. The prayer is for divorce and restoration of plaintiff’s former name, Hall.

The defendant, although duly notified by publication, failed to appear within the time prescribed by law and default was by order of the court entered against defendant.

The cause was tried February 9, 1962, before the Honorable Douglas W. Greene, Judge of the Circuit Court of Greene County, Missouri, Division II. The court, after hearing all of the evidence, entered judgment dismissing plaintiff’s petition for lack of one year’s residency on the part of plaintiff and lack of jurisdiction of the court. Plaintiff appealed.

Plaintiff’s evidence shows that she was married to the defendant on August 20, 1945, in Plymouth, Indiana, and separated April 9, 1956, in New Jersey. Her evidence fully supports the allegations of indignities in her petition as cause of the separation. She testified that she is now a resident of Greene County, Missouri, and has resided within the State for more than one year preceding the filing of her petition. She gave this testimony:

“Q. Where were you raised, Mrs. Scot-ton? A. Right here in Springfield.
“Q. Did you go to school here ? A. Yes, -sir.
“Q. How long did you live here in Springfield? A. Well, let’s see — I was about seven years old when my mother and father came here, and I lived here until 1940.
“Q. In October of 1960, then, did you move back to Springfield, Missouri? A. Yes, sir.
“Q. And where did you establish your home at that time? A. I was with my sister.
“Q. What was that address? A. 1815 South Franklin.
“Q. And, at that time, did you move all of your belongings here? A. I moved everything I could put in the car.
“Q. Did you establish your home here at your sister’s? A. I left my things — I had to go back on account of my daughter being sick.
“Q. Now, at the time you moved here in October of 1960, was it your intention to make this your permanent home and residence? A. Yes, sir.
“Q. Did you have any intention of returning back to New Jersey to live? A. No. I didn’t.
“Q. What is your occupation, Mrs. Scot-ton ? A. I am a nurse, a PN.
“Q. Were you connected with any particular hospital there in New Jersey? A. I worked part time at Allsoul Hospital, and then did private duty around town.
“Q. Did you terminate your relations there in the east before you came to Missouri ? A. I did.”

Witness testified that she gave the hospital two weeks notice that she was leaving; that she made arrangements through correspondence with her sister in Springfield to live in her home. She gave this evidence: “A. Well, I came around the first of October, and I left here around the eighth of November.

“Q. Now, what was your purpose' of leaving at that time? A. My daughter was sick, and I went back to be with her.
“Q. What was the difficulty with your daughter? A. Well, she was expecting.”

She testified that her daughter lived in Morristown, New Jersey; that at the time she moved to Springfield she had no intention of returning but that her daughter called her by phone and said she was very sick and that was when she went back. She gave this evidence:

“Q. Now, when you left, did you intend to leave here permanently, or just a temporary— ? A. That was only temporarily.
“Q. And did you consider your sister’s home your home while you were gone to New Jersey? A. Yes.
“Q. And how long, then, did you remain with your daughter ? A. Well, I was there until October of this year. And then I came back.
“Q. And, what was your purpose in staying so long there in New Jersey? A. Well, we had an awful snowstorm and I couldn’t get back. And then I got sick myself, and I had bursitis and I was in the hospital from the 28th — 26th of April. * * * I also had pneumonia.
“Q. And then, when you got out of the hospital, how long was it before you were able to travel ? A. Well, my doctor — it was in June, I was to get under the doctor’s care — I was still taking shots. And the doctor didn’t want me to leave then, and I said, ‘Well I want to get back.’ And he said, T would advise you not to start driving with your arms like they are; I would like for you to stay until we can get this straightened up.’ ”

She said she continued to stay in Morris-town and did temporary work while there, nursing duty; that she helped part time on the floors when they needed her but she maintained her residence here in Springfield. She gave this evidence:

“Q. My question was, Mrs. Scotton, during the time that you were there in Mor-ristown, New Jersey, did you maintain your home here at your sister’s in Springfield? A. Yes, sir.
“Q. Were your personal belongings here? A. That’s right.
“Q. And, did you consider this as your home? A. That’s right.
“Q. Was it your intention, while you were in New Jersey, to return here to your home as soon as you were physically and financially able to do so ? A. Yes, sir.
“Q. And did you return to your home here as soon as you were physically and financially able to do so ? A. Yes, sir.
“Q. And when was that ? A. That was in October.
“Q. The first part of October of 1961? A. Yes.
“Q. Have you employment here Mrs. Scotton? A. Yes. I am working at the Burge Hospital.
“Q. How long have you worked at Burge Hospital ? A. Since the first day of November.
“Q. of ’61 ? A. That’s right.
“Q. What type of work are you doing there? A. I have charge of the central supplies of an evening.
“Q. And, have you transferred your nurse’s license to Missouri, or made application to do so? A. Yes; I have.”

“EXAMINATION BY THE COURT:

Q. When did you make your application to transfer your nurse’s license to Missouri, Mrs. Scotton? A. In November.
“Q. Do you have a driver’s license ? A. Yes, I do.
“Q. What state is that issued from? A. From New Jersey.”

She testified that she had never made application for a Missouri driver’s license; that it was due this month and she will have it transferred to Missouri. She stated she was not driving her car at this time; that when she left New Jersey she went to the Post Office and had her mailing address changed in care of her sister; that was in October, 1961; that when she was here the first time she had not received any letters transferred from New Jersey; that she had not left a forwarding address at that time. She stated that when she went back she left wearing apparel at her sister’s, most of her underclothes, except just what she had to have and her dresses she did not need; that she took her nurse’s uniforms and cap. She gave this evidence:

“Q. Did you take other clothes back with you? A. I took just what necessary things I needed.
"Q. And left all your other clothes down here, did you? A. I left my things and clothes down here.”

Her testimony was that she left Springfield on November 8th and her daughter’s baby was born November 10th. She stated she had understood that her daughter’s mother-in-law was going to take care of the baby but that her father-in-law had gotten sick and she could not go and that was her reason for going back, was to take care of the baby.

In answer to the court’s question plaintiff testified that when she left New Jersey in October, 1960, she had a mobile trailer; that her daughter wanted it left there; that she intended to get it later on but when she went back she inquired and found it would cost her $500.00 to have it moved so she sold it in September, 1961, She said she did not live in the trailer after she went back to New Jersey but she did go out and straighten things up in it. She testified that all the time she was back she lived in the home of her daughter; that she stayed there from November 10, 1960, until October, 1961, when she came back to Missouri; that she went to work when she was back in New Jersey in December, 1960, and worked up until September or October, 1961, aside from the period she was hospitalffied. She stated she was on private duty cases part time and in the hospital. She testified she had insurance with Allstate but had not had notice of premiums transferred yet. She stated that as soon as she could get everything settled she wanted to move to herself.

Plaintiff offered evidence of witnesses living in Springfield who had known her for some 30 or 40 years who testified to the good reputation of plaintiff for good conduct.

Mrs. Martha Pickett, a resident of Springfield and sister of plaintiff, testified that plaintiff had made arrangements to move into her home in October, 1960; that she had consented that plaintiff make her home with her. She stated that plaintiff was just going to live with her as a member of the family; that she had a room at her home and the rest of the house she shared with the family. She stated that plaintiff had moved her personal belongings into her home; that she was to live there until she wanted to move or maybe until she got a job. She stated that plaintiff was intending to make her home there indefinitely as far as she knew; that three weeks ago she moved to an apartment; that she was in her home approximately five weeks before she returned to New Jersey to take care of her daughter during confinement. She gave this evidence:

“Q. Now, did she leave her personal things there at your home, in her room? A. Yes. Part of her personal things remained in my home.
“Q. And did that room continue to be hers while she was gone? A. Yes, sir.
“Q. Did she tell you what her intentions were when she left your home to go to her daughter’s ? A. Well, she just said, ‘I will be back as soon as I can return’.”

Witness testified that she considered the room plaintiff’s while she was gone; that plaintiff had written her and said she wasn’t feeling well and she wrote back and told her if she wanted to live like poor people she could come down and live with her; that sometime in September plaintiff called her and said “I am coming down and live with you”, and I said, “All right.”

Howard L. Pickett, husband of Martha Pickett, testified that he lived at 1815 South Franklin; that in the first part of October, 1960, arrangements were made for plaintiff to come and live with them; that she did come and had a carload of personal things and she moved into a room at his home. He testified that as far as he knew it was her intention to remain there indefinitely. He corroborated his wife’s testimony as to the cause of plaintiff going back to New Jersey to her daughter’s.

Plaintiff assigns as error that the judgment of the trial court was totally unsupported by the evidence; that all the evidence establishes that appellant changed her domicile from the State of New Jersey to the State of Missouri the first of October, 1960, by her actual personal presence in Springfield, Greene County, Missouri, and moving into her sister’s home with all her personal belongings, with the intention to remain there permanently or for an indefinite time without any fixed or certain purpose to return to New Jersey and thereby established a residence within this State and kept and maintained her legal residence in Springfield, Greene County, Missouri, from that date until the present time; that she at no time changed her residence thereafter from Greene County, Missouri, while absent therefrom temporarily from the State, working; and that such residence once established by appellant within this State and not thereafter changed is sufficient for the maintenance of her divorce action, notwithstanding the physical absence of the appellant resident for a short or long period.

On appeal it is our duty to consider, weigh and evaluate all of the competent evidence tending to prove or refute the essential factual issues and reach our own findings. In so doing reviewing court is not bound by the trial court’s findings but usually accords proper deference to them, particularly where the credibility of witnesses is challenged. Reviewing court will not hesitate to correct any errors the trial court may have made. May v. May, Mo.App., 294 S.W.2d 627, 632; Phelps v. Phelps, 241 Mo.App. 1202, 246 S.W.2d 838; Section 510.310, subd. 4, RSMo 1959, V.A.M.S.; Grant v. Grant, Mo.App., 324 S.W.2d 382, 386.

The question of whether plaintiff met necessary residential requirements is one of fact to be determined in the first instance in the trial court. May v. May, supra, 294 S.W.2d p. 634 [4-7]; Grant v. Grant, supra, 324 S.W.2d p. 386 [2]; Finley v. Finley, Mo.App., 6 S.W.2d 1006.

Section 452.050 RSMo 1959, V.A.M.S. provides: “No person shall be entitled to a divorce from the bonds of matrimony who has not resided within the state one whole year next before the filing of the petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided within this state; * *

It can be seen that the statute uses “resided” and not “domiciled”. Nowhere in the statute is “resided” defined. In Phelps v. Phelps, supra, and in State ex rel., Stoffey v. La Driere, Mo.App., 273 S.W.2d 776, the courts found that “resided” as used in the statutes means the same as “domiciled”. In the Phelps case, the Kansas City Court of Appeals stated on page 844 of the opinion in 246 S.W.2d.

“The word ‘residence’ is often but not always used in the sense of ‘domicil’ and its meaning in a legal phrase must be determined in each case. The courts of this state have held that the ‘residence’ required by our divorce statutes is equivalent to ‘domicil’ ”. (See M.L.R., Vol. 24, 1959, p. 218 for a full discussion of domicile for divorce in Missouri.)

A person must have a domicile somewhere and a person who has obtained majority and is not under some legal disability may, through exercise of choice in matter, change his domicile and thereby acquire what is known as “domicile of choice”. Phelps v. Phelps, supra, 246 S.W.2d page 843 [5—8].

In Phelps v. Phelps, supra, 246 S.W.2d page 844, the court stated:

“ * * * According to the Missouri ■cases, actual personal presence in the new place and the intention to remain there, either permanently or for an indefinite time, without any fixed or certain purpose to return to the former place of abode, will constitute a change of domicil. The fact of physical presence and the intention must concur; and if they do so, even for a moment, the change of domicil takes place. Nolker v. Nolker, Mo., 257 S.W. 798; Barth v. Barth, Mo.App., 189 S.W.2d 451; Lewis v. Lewis, 238 Mo.App. 173, 176 S.W.2d 556; * * * In Hays v. Hays, 221 Mo.App. 516, 518, 282 S.W. 57, 58, the court said: ‘To create a domicile or residence, two elements are essential; Actual bodily presence in the place combined with a freely exercised intention to remain there permanently, or at least for an indefinite time.’ It will be noticed that the word ‘residence’ is used as the equivalent of ‘domicil.’ ” See State ex rel. Stoffey v. La Driere, supra, 273 S.W.2d page 781 [12].

The one year period of residence in the State prescribed by § 452.050 with necessary residential requirements in a divorce action is jurisdictional. Grant v. Grant, Mo.App., 324 S.W.2d 382; State ex rel. Stoffey v. La Driere, supra. Residents within the State for a year next preceding the institution of the divorce suit is a jurisdictional fact which must be averred and proved. Gomez v. Gomez, Mo.Sup., 336 S.W.2d 656.

The plaintiff has the burden of proving that she has a domicile within the State and that she has complied with the statute prescribing the preliminary period of residence. Gomez v. Gomez, supra.

Mere temporary absence from the State without any intention of remaining away does not cause a person to lose his or her residence within the meaning of the divorce law. Phelps v. Phelps, supra.

In determining the existence of residence the length of period of bodily presence, however short, is of no consequence, providing the concurring intent to remain is established by other evidence, otherwise it may become an important fact for consideration in determining the existence of intention. Barth v. Barth, Mo.App., 189 S.W.2d 451.

In Trigg v. Trigg, 226 Mo.App., 284, 41 S.W.2d 583, 589 [4-6], the court stated: “It is obvious that this language was meant to apply to the facts and circumstances in the case then under consideration, and it is equally obvious that it is directed solely to the elements necessary to create a residence. It has no reference whatever to the elements necessary to maintain said residence. The case is not an authority for the proposition that there must be a continuous physical presence for one whole year before suit. To give such interpretation to the statute would be unreasonable and oppressive. We hold in accord with the general expression of the law that residence is largely a matter of intention evidenced by some act or acts in conformity with such intention, and that a residence once established within this state and not thereafter changed is sufficient for the maintenance of a divorce action, notwithstanding the physical absence of the resident for a short or long period. * * * ”

This court held in Grant v. Grant, supra, 324 S.W.2d page 387 [6] that:

“ ‘Residence’ is acquired by an intention to live in a place permanently or for an indefinite time, coupled with actual bodily presence, though the presence need not be continuous.” (Citing Madsen v. Madsen, Mo.App., 193 S.W.2d 507 and Trigg v. Trigg, 226 Mo.App., 284, 41 S.W.2d 583, 589 [4-6], and we quoted from Phelps v. Phelps, supra, 246 S.W.2d 845 [11-12] “that continuous residence does not require continuous presence, but is compatible with temporary absences. Mere temporary absence from the state, without any intention of remaining away, does not cause a person to lose his (or her) residence within the meaning of the divorce laws.”

Under the particular facts and circumstances in the instant case we believe that the trial court was in error in reaching the conclusion that plaintiff was not a resident of Greene County and of the State of Missouri for one whole year next before the filing of her petition. Her absence temporarily from the State did not constitute a change of residence where she did not intend to relinquish her domicile in Missouri. Actual personal presence in a new place and intention to remain there, either permanently or for an indefinite time without any fixed or certain purpose of returning to former place of abode constitutes a change of domicile.

The evidence in the instant case shows that plaintiff accompanied her parents to Springfield, Missouri, at the age of seven years and that she lived in Springfield until 1940; that her sister has lived here continuously. Plaintiff testified that she has been separated from her husband since 1956 and has no knowledge of his whereabouts; that she made arrangements with her sister in Springfield to change her domicile from New Jersey to Springfield and that she actually came to Springfield and brought all of her personal belongings and lived with her sister for some five weeks. Because of the sickness of her daughter, who wired her to come back to take care of her during childbirth and because her daughter’s mother-in-law had been unable to take care of plaintiff’s daughter, she took such part of her clothing, including her nurse’s uniforms and cap, and went back to stay with her daughter. We think that it is proper to infer that plaintiff had been living in a trailer, which, at the request of her daughter, she had left in New Jersey, but the evidence is that plaintiff never went back to live in the trailer but stayed in her daughter’s home. Because of weather conditions and because of plaintiff’s own illness, she remained practically a year but plaintiff testified that she, at no time, ever intended to live in New Jersey but always intended,'to come back to Missouri and Springfield. The evidence is that she did come back to the home of her sister in October, 1961; that she had left much of her personal possessions in the room that her sister had provided for her and this divorce proceeding was filed later in October, 1961, after plaintiff’s return to Springfield.

There are two elements necessary to create a domicile or residence — the actual bodily presence in the county combined with a freely exercised intention of remaining here permanently or for an indefinite time at least. When these two elements are present the change of domicile is completed. It seems to have been the opinion of the trial court that because plaintiff was recalled to New Jersey to be with her daughter at childbirth and because she stayed from November, 1960, until October, 1961, and worked some in the hospital and private homes as a nurse, that that proof, alone, showed she did not change her domicile. The cases hold that change of domicile is a matter of intention which can be determined only from the facts. They, likewise, hold that one does not lose his domicile when once changed by being absent from the county, either for a short or a long time; that if it is their intention to maintain their home at the place of the new domicile the fact of absence does not change their domicile. It was held in Trigg v. Trigg, supra, page 589, that the question of domicile is directed solely to the elements necessary to create a residence. It has no reference whatever to the elements necessary to maintain said residence; that residence is largely a matter of intention evidenced by some act or acts in conformity with such intention, and that a residence once established within the state and not thereafter changed is sufficient for the maintenance of a divorce action, notwithstanding the physical absence of the resident for a short or long period. Bearing upon the intention of plaintiff to return to Missouri after she had established her domicile here, the evidence showed that she lived with her sister for some time and now has rented her own apartment; that she secured a job at Burge Hospital and had her nurse’s license changed from New Jersey to Missouri. We think this evidence supports plaintiff’s testimony and her sister’s testimony that it was plaintiff’s intention to change her domicile back to Springfield.

Judgment of the trial court is reversed and remanded with directions that a decree of divorce be entered for plaintiff as prayed for in the petition.

RUARK, P. J., concurs.

STONE, J., dissents.


author: CHAPMAN, Justice.

text:
    MILLERS MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Lloyd H. JACKSON, Appellee.
    No. 7169.
    Court of Civil Appeals of Texas. Amarillo.
    June 25, 1962.
    Jones, Parish, Fillmore, Robinson & Lambert, Wichita Falls, for appellant.
    Storey & Sheridan, Vernon, for appellee.
   CHAPMAN, Justice.

This is an appeal by Millers Mutual Fire Insurance Company from a judgment based upon a jury verdict rendered upon a suit on a fire insurance policy to recover damages caused by fire to gin machinery and equipment owned by appellee.

The policy of insurance upon which the suit was based contained the following provisions under the heading, “Warranties by the Insured:”

“(a) Should fire occur on gin property— that a watchman shall be maintained continuously for 24-hours thereafter. This requirement is waived during hours when gin is in operation with full work force on duty.”

"(b) Bale cotton on gin plant premises— that as to any building insured while ginning crew is not on premises, no baled cotton will be stored or kept temporarily in or within 40 feet thereof on the platform attached thereto. * * * ”

“(c) This company shall not be liable for loss by fire or lightening occuring during failure to comply, in so far as same is under insured’s control, with any or all of the warranties or conditions.”

Article 6.14 of the Insurance Code, V.T. C.S., provides: “No breach or violation by the insured of any warranty, condition or provision of any fire insurance policy, contract of insurance, or applications therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about the destruction of the property.”

All emphasis shown herein are ours unless otherwise designated.

It has been held that the purpose of Article 6.14 is to prevent insurance companies from avoiding liability under technical provisions of their policies where the act of the insured breaching such technical provisions does not contribute to the loss. Holston et al. v. Implement Dealers Mut. Fire Ins. Co., 5 Cir., 206 F.2d 682.

The jury found a fire occurred on the gin property within 24-hours of the time of the fire in question; that appellee failed to maintain a watchman continuously for 24 hours after such fire occurred on the gin property; that appellee left a bale of cotton within 40 feet of the platform of the gin; and that he kept baled cotton on the platform of the gin while the ginning crew was not on the premises.

However, on questions submitted the jury found none of these situations contributed to bring about the damages. Therefore, the first question with which we are presented is whether the damaged property was personalty or real property. If personalty the jury’s answer had the effect of voiding the warranties because of Article 6.14, supra, of the Insurance Code providing no breach of the warranties shall constitute a defense to damages to personal property unless such breach[s] contributed to bring about the destruction of the property, which, as stated, the jury found they did not.

The contract of insurance by the parties hereto provides: “It is understood and agreed that each item, or subject of insurance under this policy (other than the building or buildings) is, for the purpose of this contract of insurance, to be treated and considered as personal property.”

In submitting the issues the court inquired of the jury if the different warranties were violated and then asked if such violations contributed to bring about the damages to the personal property in question. Thus, the court in the submission of the issues assumed the machinery and equipment, the loss of and injuries for which damages were sought, were personal property. Probably such assumption was based upon the agreement of the parties to the insurance contract, as shown in the preceding paragraph.

However, appellant did not at any place in the record before us object to that form of submission but simply objected to the giving of the issues “for the reason that the uncontradicted evidence shows that * * all of said fixtures, machinery and equipment, as a matter of law, became real property.

It has been held that the burden is upon the party contending that a motor had become a part of the realty to plead and prove such fact. Burns v. Union State Bank of Carrizo Springs, Tex.Civ.App., 265 S.W.2d 164. (N.R.E.). It has also been held that ordinarily the question of whether personalty Ras become part of the realty depends on the intention with which it was annexed, and such question involves one of fact for the jury. Dallas Joint Stock Land Bank of Dallas v. Lancaster, Tex.Civ.App., 100 S.W.2d 1029, (Writ dismissed); City of Houston v. Priester et al., Tex.Civ.App., 302 S.W.2d 948. Thus we do not believe it can be said from this record that the damaged or destroyed machinery and equipment was as a matter of law a part of the realty.

The contract of insurance lists and values the items separately, listing the buildings separate from the machinery and equipment. One item listed in the policy and insured for $33,540.00 was: “On fixed and movable furniture, fixtures, machinery and equipment of all kinds incident or necessary to the handling and ginning or reginning and baling of cotton. * * * ” Outside of the electrical equipment this item included practically all the damaged equipment for which recovery was sought. Under such item were the two press boxes which appellee testified were not attached to the building. Also damaged was the condenser and several lint cleaners. Appellee testified the condenser was mounted on the lint cleaner which was installed by sliding it into place on the floor of the building. There is evidence to show the lint cleaner was stationary so it would not slide around on the floor but no probative evidence it was attached to the building by bolts, screws, or nails. There is evidence that the machinery wears out often and is replaced from time to time; that it is not made a permanent part of the building and can be removed; and that practically every year something has to be replaced.

Our Supreme Court in the very early case of Hutchins v. Masterson, 46 Tex. 551, 554 established certain criteria to determine whether a chattel has become an immovable fixture in the following language:

“It is said, the weight of the modern authorities establish the doctrine that the true criterion for determining whether a chattel has become an immovable fixture, consists in the united application of the following tests
“1st. Has there been a real or constructive annexation of the article in question to the realty?
“2d. Was there a fitness or adaptation of such article to the uses or purposes of the realty with which it is connected ?
“3d. Whether or not it was the intention of the party making the annexation that the chattel should become a permanent accession to the freehold? —this intention being inferable from the nature of the article, the relation and situation of the parties interested, the policy of the law in respect thereto, the mode of annexation, and purpose of use for which the annexation is made.
“And of these three tests, pre-emi-nence is to be given to the question of intention to make the article a permanent accession to the freehold, while the others are chiefly of value as evidence as to this intention. (Ewell on Fixtures, 21, 22.)
“It is also to be noted, that owing to the greater relative importance and value now attached to chattels than formerly, and, in the interest of manufacture and commerce, a much more liberal rule has been adopted, in determining whether or not chattels which have been placed upon land by lessees and tenants are permanently annexed to it, than once prevailed. It is well settled, however, that there has been no such modification in the ancient rule, in the absence of evidence of intention to vary their rights, as between grantor and grantee.”

In still an earlier case involving gin machinery that court in Cole v. Roach, 37 Tex. 413, in referring to “Hill on Fixtures” has said:

“Again, the same author says that it requires a positive act of the person making the annexation to change a chattel to a fixture; the intention to make the article a permanent annexation to the realty must, generally, affirmatively, and plainly appear, and where there is a doubt or uncertainty the legal qualities of the article are not changed and it must be deemed a chattel.”

In the same opinion the court has quoted with approval from another authority as follows:

“I have examined a good many English and American cases, and they are almost uniformly hostile to the idea of mere loose, movable machinery, even where it is the main agent or principal thing in prosecuting the business to which a freehold property is adapted, being considered apart of the freehold for any purpose.”

As may be seen from these statements by the Supreme Court and as so succinctly stated in Hutchins v. Masterson, supra, pre-eminence is to be given to the question of intention concerning whether a chattel becomes legally a permanent annexation to the freehold. This rule is followed in Murray Co. v. Simmons et al., 229 S.W. 461 (Tex.Com.App., approved by S.C.). It is sometimes difficult to determine the intention of the parties as to whether property being dealt with shall remain personalty. No such difficulty is presented here because the parties agreed in writing that each item or subject of insurance other than the buildings should be considered as personal property.

From the facts above related concerning the machinery and equipment, on the authority of the statements of the Supreme Court above quoted, and because we are required to indulge every reasonable intendment in favor of the verdict we hold the record in this case does not show the damaged property to be a part of the realty as a matter of law. Since appellant attacked the charge only upon that basis we believe its points based thereon are without merit.

We are not unmindful of the Axe and Elk cases involving gin machinery but there are many material distinguishing features in those cases and the instant case. In the former, involving an insurance policy similar to ours, the court stated the engine and machinery were attached to the building and intended to be permanent fixtures and the gin stands were attached to the sills set in concrete in the floor and there was not any part thereof that was not attached as part of the realty. In the latter a lien was involved rather than an insurance policy, the burr extractors involved were nailed or screwed to a platform 20 to 30 feet long built across the center of the building connecting with the floor, they weighed 9000 pounds and if removed would have resulted in injuries to the building. Additionally, in neither of the cases did the Supreme Court do more than agree with the results reached by the Commission, whereas, in the Murray case above cited the Supreme Court approved the holding as correct. Also, in the Elk case there is no record of an agreement between the parties that the machinery, for the purpose of the contract of insurance, was to be treated and considered as personal property.

The next group of points present what appears to us to be a much more serious question, which is that there is no evidence to support the judgment for $5,252.00.

The court in submitting the issue on damages defined damages as: “the reasonable and necessary cost of repair and/or replacement of such fixtures, machinery and equipment of all kinds, incident or necessary to the handling and ginning or reginn-ing and bailing of cotton contained in the gin building, including the costs of labor and material necessary to repair and/or replace such items with items of like kind and quality within a reasonable time after the loss.” No objection was made to the definition.

Appellee testified he had already paid $1543.28 for repairs and that outside of the electrical equipment it would require an expenditure of $3250.00 to put the equipment back into shape. He testified he needed a saw cylinder at the cost of approximately $2000.00 and two doffin rolls at a cost of $750.00 each. These were three of the items that went into making the $3250.00-figure mentioned. Yet on cross-examination at the conclusion of the testimony he admitted he was $615.00 too high on each of the doffin rolls and that they cost $135.00 each instead of $750.00 each. He also admitted he was $1400.00 too high on the saw cylinder and that it cost $600.00 rather than $2000.00. In view1 of such admissions and in the absence of any other probative evidence by which the jury could have arrived at $5,252.00, we believe we are without legal authority to affirm a judgment for that amount. We recognize wide latitude is given the jury on damages in personal injury cases but we do not believe affirmance can be justified when there is such wide variance with the judgment rendered and the testimony of the plaintiff himself when personal property is involved on which replacement costs may be as specific as here.

By appellee’s own admissions the amount of $3250.00 would be $2630.00 too high for the parts he testified he needed. There is sufficient evidence to justify a verdict and judgment of the amount awarded less than $Z630.00. Therefore, under the authority of Rule 440, V.A.T.R., this court is under a legal obligation to reverse and remand the case unless appellee files a re-mittitur in the amount of $2630.00, the ex-cessiveness being the only reason we find it necessary to reverse. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017.

Therefore, this case is reversed and remanded unless within 14 days from the date of this opinion Lloyd Jackson files a re-mittitur in the amount of $2630.00. In the event such remittitur is filed the judgment of the trial court will be reformed to conform with the above conclusion and as reformed affirmed.

      . Export Ins. Co. of New York v. Axe et al., Tex.Com.App., 58 S.W.2d 39; Citizen’s Nat. Bank of Abilene et al. v. Elk Mfg. Co., Tex.Com.App., 29 S.W.2d 1002.