author: DENTON, Chief Justice. PER CURIAM.

text:
    CRAFTSMAN GLASS, INC. v. W. H. CATHEY et al., D/B/A Cathey-Fullingim Hardware Company.
    No. 7089.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1961.
    Rehearing Denied Dec. 4, 1961.

      Underwood, Wilson, Sutton Heare & Berry, Amarillo, for appellant.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellees.
   DENTON, Chief Justice.

Appellant brought suit against appellees to recover damages incurred when a chain repair link broke and caused a quantity of glass being hoisted by the chain to fall and break. Appellant based its cause of action on an alleged breach of express and implied warranties of the suitability or fitness of a chain repair link or connecting link sold to appellant by appellees. The case was sub-omitted to a jury. Based on the jury’s answers to the special issues submitted,-the trial court entered a judgment that appellant take nothing.

Charles Marsh, general manager of appellant company along with one of his employees, went to appellees’ hardware store for the purpose of purchasing some chain, hooks, and links which were needed to install a hoist or lift. Marsh related to Mr. 'Wirtz, the sales clerk, the purpose for which the articles were to be used, and after selecting the chain asked for some “D links” or “cold shuts” which are chain repair links used to connect the chain. Although the appellees had that particular type of chain links in stock, Wirtz suggested another type of link to be used in the hoist. There is some dispute as to whether or not Marsh told Wirtz how much weight the hoist would be required to lift, but Wirtz admitted he was told the hoist was to be used for the purpose of lifting “quite a bit of weight.” In response to Marsh’s statement regarding the chain links, “Are you sure these won’t break?” Wirtz testified he replied, “Well, it is recommended to hold a weight of an equal size chain.” Marsh pur-Í chased the type of chain link recommended by Wirtz rather than the type he originally ⅛ requested. It is undisputed that the link broke on the first occasion the hoist was used to lift glass, resulting in approximately 920 square feet of glass being broken. It is the damage to this amount of glass together with alleged related damages that the appellant is here suing for. There was no testimony that any other part of the Chain or hoist broke or snapped on the occasion in question.

In response to the special issues submitted, the material jury’s findings were: that appellees’ salesman had notice of the use to which appellant was to put the connecting link; that it was represented the link was suitable for the purpose for which it was to be used; that the link was not suitable for the purpose for which it was used; and that the link purchased was not as good as the link originally requested by Marsh.

After assessing damages in three separate issues, the jury found that Wirtz was not authorized by his employer, the appellees herein, to make any warranties to appellant in regard to the link in question. Undoubtedly the trial court entered its judgment de-denying appellant recovery on the strength of the jury’s answer to the last special issue concerning Wirtz’s lack of authority to make any warranties.

It is well settled in this State that where an article is sold for a particular use there is an implied warranty that it is suitable for such a use. Turner & Clayton v. Shackelford (Tex.Com.App.) 288 S.W. 815; Norvell-Wilder Hardware Co. v. McCamey, Tex.Civ.App., 290 S.W. 772 (writ dismissed) ; Bedner v. Dunigan Tool & Supply Co., 142 Tex. 663, 180 S.W.2d 919, 920. The Supreme Court in the Bedner case approved the following test to be applied in these cases:

“The recognized test of an implied warranty of suitableness for the particular purpose for which purchased is ‘whether the buyer informed the seller of the circumstances and conditions which necessitated his purchase of a certain general character of article and left it to the seller to select the particular kind suitable * * * for the buyer’s use.’ ”

It is admitted that the appellees’ employee knew of the appellant’s intended use of the chain and link. After being informed of the purpose for which the chain and link was to be used, Wirtz suggested and recommended a connecting link other than the type requested by Marsh. Upon this suggestion and recommendation, Marsh purchased the link recommended by Wirtz. Under these facts and circumstances, we are of the opinion an implied warranty of suitability of the connecting link arose. The jury’s finding that the link was in fact unsuitable is supported by the evidence. We are therefore of the opinion the trial court erred in entering a judgment which failed to recognize this implied warrafity.

In view of this holding, we are of the opinion the jury’s finding that Wirtz was not authorized to make any warranties cannot effect or remove this implied warranty of suitability. Clearly the agent was clothed with implied authority to do what was reasonably necessary and proper to carry out his job to sell his employers’ merchandise to prospective customers. Although we are of the opinion the evidence supports the proposition that appellees, through their agent, made an express warranty of suitability or fitness for a particular purpose, we do not deem such a conclusion necessary for the disposition of this case.

The jury found the reasonable value of the glass which was broken when the connecting link in question snapped was $621.-00; that appellant was damaged when additional glass had to be purchased for a specific job previously contracted for and that glass valued at $223.00 was wasted in cutting it to proper size; and that $32.00 was expended by appellant in cleaning up the debris.

It is well settled that the buyer of goods can recover damages sustained as a necessary and usual result of a breach of warranty, and in addition thereto he can recover such consequential damages as his seller should have contemplated as a probable result of the breach of warranty. Rumely Products Co. v. Moss, Tex.Civ.App., 175 S.W. 1084; De Kalb Hybrid Seed Co. v. Agee, Tex.Civ.App., 293 S.W.2d 64 (error refused n. r. e.) ; St. Mary’s Oil Engine Co. v. Allen-Morrow Co., Tex.Civ.App., 20 S.W.2d 266 (no writ history).

Appellant’s pleadings and the evidence are sufficient to support the separate items of damages found by the jury, but we think the trial court erred in the manner these damage issues were submitted. Whether or not the damages were such that the seller should -have contemplated them as a probable result of a breach of warranty is a question of fact to be determined by the jury. Because of the failure of the trial court to so instruct the jury in connection with the damage issues, we are of the opinion the cause must be remanded.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

On Motion for Rehearing.

PER CURIAM.

In its motion for rehearing, appellant offers to remit all damages except the amount of $621.00 which the jury found to be the value of the glass broken when the chain hoist snapped. It is appellant’s contention that upon its offer to remit the other damages this Court should reverse and render the case in behalf of the appellant for the amount of $621.00 and costs of court. Contrary to appellant’s contention we do not think appellant was entitled to the $621.-00 damages as a matter of law.

We are aware of the authority of this Court to render a judgment in cases where severable items of damages are conceded to have been erroneously submitted, and followed by the conceding party’s offer of remittitur. However, the facts and circumstances peculiar to this case do not bring this rule into effect. We remain convinced that all items of damages in this case should have been submitted under proper instructions in accordance with the original opinion.

The fact the pleadings and evidence supported the jury’s finding that appellee had notice of the use to which appellant was to put the connecting link goes to the question of the implied warranty rather than to the foreseeability of probable damage to glass that was to be handled by appellant.

In addition it appears from the record that the case was not fully developed in the previous trial.

Appellant’s motion for rehearing is accordingly overruled.


source: Caselaw Access Project

author: CLAYTON, Justice..

license: Public Domain

text:
    I. C. ROARK, Appellant, v. Ross ANDERSON, Appellee.
    No. 5483.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1961.
    Rehearing Denied Dec. 13, 1961.

      W. P. Wallace, Jr., Del.Rio, H. O. Met-calfe and William H. Earney, Marfa, for appellant.
    Frank 0. Ray, Alpine, Morriss, Morriss, Boatwright & Lewis, San Antonio, for ap-pellee. .
   CLAYTON, Justice..

This is a wage .case in .which the appel-lee, Anderson, sued appellant, Roark, for wages under an oral contract wherein ap-pellee claims appellant agreed to pay the former $275.00 per month for work as a trapper and ranch hand through the winter of 1959 and until spring of 1960. Appellee alleges that appellant was to advance wages to appellee up to $175.00 per month, and at, the termination of employment was to pay to appellee the balance of the accumulated wages. Appellee further alleges that he worked for appellant'under the above arrangement from October 1, 1959 until May 25, 1960, and admits having received from appellant $1,260.00 in wages from the $2,-154.14 he claims was due him. He also allows appellant a credit of $200.00 for four hound dogs repurchased from appellant, making a total credit on appellant’s account of $1,460.00, less $70.00 for seven steel traps' left with appellant, or a credit balance of $1,390.00 against the claimed total of wages, contracted to be paid. Thus, he sought recovery of $764.14.

Appellant replied by general denial, specifically plead that the wage agreement was for $175.00 per month only, which had been paid except for a balance owing for part of the month of May, 1960, which appellant was ready to pay; denied that he purchased from appellee the seven steel traps; alleged, by way of cross-action, that appellee wrongfully removed from appellant’s premises five dogs (used to combat predatory animals) reasonably valued at $250.00, and that the wrongful removal of said dogs had damaged appellant in the amount of $750.00. This last item of damages in the amount of $750.00 was abandoned in the testimony, and no question arises from that.

The- only testimony in the case, other thin that of the'parties involved, comes from-witnesses who did not purport to know anything about the agreement of the parties, but who testified that appellee’s reputation for truth and veracity in the community was good.

The appellant introduced a number of checks covering the period of time from October, 1959 through April, 1960, executed by appellant, payable to appellee and either endorsed by, or for appellee. These checks are in varying-amounts and most of them have written on their face some reference to labor, such as: “For labor to night of 2nd Oct.”, “Adv. labor from Oct. 2nd for-' ward”, “Labor in full to 11/1/59”, “Jan. in full”, “Labor in full for March”, etc. These' checks do not total the $1,260.00 which ap-pellee admits having received from appellant, nor do they represent uniform amounts' for each month of the period covered. However, as can be seen from the writing on the face of most of these checks, examples of which are given above, they do seem to reflect the fact that some effort was being made, through advances and payments, to keep appellee’s wages paid up.

Furthermore, appellant introduced the employer’s copy of an annual tax return for Social Security under the Federal Insurance Contributions Act, 26 U.S.C.A. § 3101 et seq., for the year 1959, bearing typewritten date of January 28, 1960, which included appellee’s name and social security number and showed taxable wages of appellee for the year 1959 as $700.00. The appellant identified this exhibit as being his Social Security tax return for the year 1959, and testified that it reflected that ap-pellee had been paid wages of $700.00 during 1959 at the rate of $175.00 a month for four months.

Admittedly, the record is not entirely clear as to just which four months appellee worked for appellant in the year 1959, but appellee admits that he was helping appellant with the shearing before October 1, 1959. All checks dated prior to October 1, 1959 were excluded from the evidence, so it is impossible to determine how the $700.-. €0 reportedly paid was made up. But the first two checks introduced are each dated October 2, 1959, and one of them (in the amount of $69.00) is marked “for labor to night of 2nd Oct.”, and the other (in the amount of $40.00) is marked for “Adv. labor from Oct. 2nd forward”, thus indicating that the appellee had worked for some unknown period of time prior to October 2, 1959. Parenthetically, it might be noted that, of the checks paid in October, beginning with the one marked “Adv. labor from Oct. 2nd forward” and ending with one dated October 31, 1959 marked “Labor in full to 11/1/59”, a total of $172.00 is reached which, with part of the October 2nd check marked “for labor to night of 2nd Oct.” could have made up the $175.00 for that month.

This case was submitted to the jury on special issues. The first issue inquired what the jury found, from a preponderance of the evidence (correctly defined in the charge), was the agreed monthly wage to be paid plaintiff by defendant. The jury answered “$275.00”. In answers to the second, third and fourth issues, the jury found that the preponderance of the evidence showed that plaintiff had, in December of 1959, and before the termination of plaintiff’s employment, repurchased from defendant certain dogs for $200.00. Judgment in favor of the plaintiff for $764.14 was rendered on this verdict, and appellant’s motions for new trial and for judgment non •obstante veredicto were overruled.

No point of error is directed to the jury findings in answer to Special Issues Two, Three and Four.

Appellant’s point of error number two asserts that the verdict of the jury was unsupported by any credible evidence. This is a question of law and, in considering this point, “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Ren-fro Drug Co. et al. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (citing Austin v. Cochran, Tex.Com.App, 2 S.W.2d 831, 832).

See also: Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938.

Applying this test to the instant case, we must hold that there is some evidence to support the jury’s finding on Special Issue No. One, and, therefore, we overrule point of error number two.

The sufficiency of the evidence is attacked in appellant’s points of error numbers one and three, the first point maintaining that the verdict was contrary to the credible evidence adduced, and the third point asserting that the verdict was in conflict and wholly at variance with the undisputed documentary evidence offered in support of appellant’s testimony. These points will be considered together. They raise a question of fact, and require this court to review all the evidence, both that which supports the verdict and that which does not. Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814 and cases cited; Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815.

After a careful examination of all the evidence, we have reached the conclusion that these points of error must be sustained.

The agreement of the parties as to the wages to be paid to appellee was an oral agreement without witnesses, and the testimony of the parties on the subject is in hopeless conflict. Other evidence, therefore, must be examined. This consists of various wage checks and the appellant’s tax return for Social Security. Many of these checks bear notations of “labor in full” or similar markings, and they were accepted by appellee without protest. The Social Security return seems to bear out appellant’s contention that appellee was paid wages of $175.00 per month for four months in the year 1959. Before going to work for appellant, the appellee was working on another ranch for $165.00 a month. Appellee had worked for appellant “in years and months gone by” for as much as $250.-00 a month, but no reason was advanced as to why he should have been offered $275.00 by appellant on this occasion — an increase of $110.00 over the wages he was drawing in his immediately preceding employment. We feel that the verdict of the jury with respect to the agreement on wages between the appellant and appellee is against the greater weight and preponderance of the evidence. For that reason the judgment of the trial court is reversed, and this cause is remanded for a new trial. Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933.

Our holding thus disposes of Points Four, Five and Six presented in appellant’s brief. It should be added, however, that the doctrine of estoppel is not relevant to this case, it not having been plead.

Reversed and remanded.


author: BARROW, Justice.

text:
    COUNTY OF BEXAR, Appellant, v. Earl COOPER and wife, Gladys Cooper, Appellees.
    No. 13836.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1961.
    Supplemental Opinion Nov. 29, 1961.
    C. J. Matthews, San Antonio, for appellant.

      Park Street, James K. Gardner, San Antonio, for appellee.
   BARROW, Justice.

This is a condemnation suit by Bexar County against Earl Cooper and wife to condemn for highway purposes, a strip of land eighty-six feet wide and some 2,300 feet long, consisting of 4.629 acres out of a tract of land containing 168 acres. The case was tried to the jury which returned a verdict, finding (1) that the market value of the land condemned was $16,500.00; (2) that the value of the remainder of the land immediately before the taking was $515,000.00, and (3) that the value of the remainder immediately after the taking was $476,500.00. Based upon the verdict, the trial court rendered judgment in favor of appellees for $16,500.00, the value of the land taken, plus the sum of $38,500.00, the severance damage to the remainder.

Appellant predicates this appeal upon two principal contentions: (1) That the judgment should be reversed on account of improper argument of appellees’ counsel to the jury; and (2) that the verdict of the jury is greatly excessive and against the great weight of the evidence.

Appellant’s first contention is overruled. The complaint as to the argument of appellees’ counsel was not preserved in the proper way; that is, by bill of exceptions. Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46.

We sustain appellant’s second contention. The 168-acre tract involved herein lies along the west side of Fredericksburg Road, some two miles north of Loop 410 in Bexar County, Texas. It has a frontage on said road of about 1600 feet. There are approximately 90 acres of land in almost a rectangular shape next to the highway. The balance of the tract is triangular or wedge shape, extending westward to the point of the wedge. In the extreme northeast corner of the tract there is a live-oak grove. Appellees’ improvements, consisting of a large two-story home, which has been described as “beautiful”, together with barns, stables and other improvements, are all located in this grove. The grove occupies a small area and is the high point of the entire tract. From this live-oak hill the remainder of the land slopes toward the west and southwest. Except for the live-oak grove, the land is all brushy country, predominantly mesquite. The strip of land condemned enters the tract about 300 feet west of the northeast corner, to the rear of all the improvements, and extends in a southwesterly direction through the pasture land. The strip does not take or interfere with any of appellees’ improvements these improvements were valued by the witnesses from $50,000.00 to $60,000.00.

Appellees presented five expert witnesses. Roland Reinhardt testified that the value of the part taken was $36,000.00; that the value of the remainder before the taking was $530,000.00, and after taking $467,000.00; severance damages $63,000.00. Mrs. Cecile Burke testified that the value of the part taken was $35,000.00; the value of the remainder before taking was $525,000.00, and after taking, $465,000.00; severance damages $60,000.00. Fred Green testified that the value of the part taken was $34,425.00; the value of the remainder before taking $535,000.00, and after taking $475,425.00; severance damages $59,575.00. Gilbert Kinder did not value the land taken, but testified the value of the remainder before taking was $550,000.00, and severance damages amounted to $102,000.00. Bert Fry testified that the value of the part taken was $31,500.00, the value before taking $525,000.00, value after taking was $467,078.00, resulting in a severance damage of $57,922.00. Mrs. Burke testified that the highest and best use of the subject, land was for estate purposes; the other four witnesses, that it was for subdivision purposes.

The appellant presented one expert witness, George French, who valued the land taken at $9,200.00, and the remainder before taking at $400,022.00, and after taking at $441,479.00. This witness also testified to numerous recent comparable sales of land in the immediate vicinity of the subject land, giving the names of persons involved, the dates of the sales, the acreage, and the volume and pages of the record of the deeds. These sales ranged from $1,000.00 to $1,700.00, and from $1,750.00 to $2,000.00 per acre. The tracts sold ranged from twenty to one hundred and seventy-five acres in size. On the other hand, appellees’ witnesses testified that they knew of no comparable sales. They did not in any way dispute these actual sales, either the fact that they were made or that the land was comparable. They simply ignored this testimony.

Considering the evidence as a whole, we find that appellees’ expert witnesses in testifying to the values placed by them, simply gave expression to their own opinion, and their opinions are not supported by any information upon which to evaluate them. The testimony amounts to no more than a mere conclusion. While it is well settled that the opinions of expert witnesses are admissible in evidence, yet in considering the value of these opinions, they fall within the criticism of Judge Norvell in Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, 838: “One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.” When we analyze the testimony, we find that appellees’ witnesses have valued the remainder of the tract, including all improvements, at from $3,000.-00 to $3,200.00 per acre, and at the same time they value the strip of brush land taken, which had no improvements, at from $7,000.00 to near $8,000.00 per acre. Thus valuing this strip through the pasture land at more than double the remainder of the tract with all the improvements, and almost four times the price comparable land sells for in the vicinity, according to the undisputed evidence. In addition thereto, we find that in valuing the remainder of the land after the taking, they merely fixed an arbitrary amount which they considered to be severance damages, and subtracted that figure from the value before taking, and thus arrived at the value after the taking. The reason assigned by some of the witnesses for this severance damage is because the strip taken runs diagonally across the land, consequently, in subdividing the tract the streets would necessarily he shorter and result in increasing the cost of paving and installing utilities. We agree that might be true .to some extent, as to the ninety acres of land through which the strip extends, but we fail to see how it could possibly be true of the wedge shaped triangle which lies entirely to the west of the strip. The witnesses also stated that there would be some loss of land. It would be difficult to find a tract of land lying in such shape, and with such dimensions as this tract, that there would not be some loss in subdividing it into blocks, lots, streets and alleys.

On the other hand, we find the highest price involved in any comparable sale in the immediate vicinity was $2,000.00 per acre. The opinion of the witness French is in line with this value. He testified that the market value of appellees’ land with improvements was from $2,000.00 to $2,500.00 per acre. The value he placed on this tract, including improvements, was slightly less than $2,500.00 per acre. It is clear that the improvements were not taken or damaged, and that the damage was only to the unimproved land.

In determining the market value of land condemned, or damaged thereby, actual sales of similar or comparable lands in the immediate vicinity of that being condemned, where willing sellers and willing buyers are involved, are much more reliable than the opinions of experts. Robards v. State, Tex.Civ.App., 285 S.W.2d 247.

Where no error has been assigned which would require a remand of the case, it becomes our duty to require a remittitur. Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826; Carter v. Texarkana Bus Co., 156 Tex. 285, 295 S.W. 2d 653. The evidence in this case shows that a market value in excess of $2,000.00, per acre, for the 4.629 acres of land actually taken, is not justified. Therefore, the jury verdict, finding such value to be $16,-500.00 is excessive in the sum of $7,242.00.

Considering the severance' damage, we refer to the testimony of the witness who attempted to explain the extensive amount claimed by appellees. This witness testified that, although the strip taken now has a paved road thereon 24 feet wide, it would be necessary to pave two streets, one on each side of this road, because, he says, that homes are not built on a thoroughfare. He valued the land which would be used for these streets at $36,800.00. He figured the cost of paving these streets to be $18,800.00. Thus there would be three paved streets side by side, and he said there would be seven other streets approximately perpendicular to these streets running in each direction, and that in order to put in north and south fronts the streets would have to be curved, and this would result in the loss of an additional ten acres of land, which he valued at an additional $30,000.00. He then said that utility, water and sewerage lines, running across these parallel streets would be an additional expense, and finally came up with the astounding figure of $102,000.00. No proposed subdivision of the land has been prepared, and so far as this record shows none is presently contemplated. However, we have considered this evidence along with the map of appel-lees’ land. We can see no reason for two-streets parallel and adjacent to the new road. The seven streets can lead out from this road in each direction, and by laying' them out at a very slight angle, rather than, perpendicular to the road, these streets can, run directly east and west, and the homes-can have north and south fronts on each side thereof, and none of them would front on this thoroughfare, but it would be used as a way to and from the subdivision. Thus, all of this detailed cost could be-eliminated, except that there might be some loss of land on each end of these streets. Under this record we can conceive of no other severance damages. We are of the opinion that a willing seller and a willing buyer would be little impressed with appellees’ severance damages as above outlined. We are of the opinion that the amount of severance damages allowed by the jury should be reduced to $26,000.00,. and that such amount will be ample to-.cover any loss of land caused by the condemnation, plus any other incidental damages that might exist.

The judgment of the trial court is reversed and the cause remanded, unless the-appellees file with the Clerk of this Court a written remittitur in the sum of $19,742.-00. In the event appellees file such re-mittitur within ten days the judgment as-remitted is affirmed.

Supplemental Opinion

Appellees having filed in writing the re-mittitur as suggested in our original opinion, it is ordered that the judgment, as reduced by the remittitur, be in all things affirmed.


author: PER CURIAM.

text:
    William E. MILLER, Appellant, v. KAMO ELECTRIC COOPERATIVE, INC., Respondent. Earl C. MILLER v. KAMO ELECTRIC COOPERATIVE, INC., Respondent.
    Nos. 23279, 23280.
    Kansas City Court of Appeals. Missouri.
    Feb. 12, 1962.
   PER CURIAM.

In its motion for rehearing, or in the alternative for transfer to the Supreme Court, defendant urges that the causes should be remanded with directions for their dismissal. Defendant now takes the position that as to these cases no jurisdiction was ever vested in the magistrate court, or in the circuit court by derivation, because the suits were filed in the magistrate court for an amount in excess of that court’s monetary jurisdiction. Specifically, defendant asserts : The suits were commenced in the magistrate court on July 27, 1959; on that date the magistrate court did not have jurisdiction of the trial of civil claims in which the amounts demanded exceeded the sum of $500.00; the petitions so filed asserted demands in the amount of $1000.00; therefore (defendant argues) the magistrate had no jurisdiction of these cases and the circuit court acquired no derivative jurisdiction.

We do not find the history of these cases to be in accordance with defendant’s version. The record before us discloses a variant state of facts leading us to believe that each of the petitions filed in the magistrate court on July 27, 1959, prayed damages for an amount within the jurisdiction of that court as was then provided by law, to-wit, the sum of $500.00.

We have examined certified photostatic copies of the original petitions which were filed in the magistrate court and certified, on change of venue taken by defendant, to the circuit court. Each of the petitions contains a demand in the following words and figures: “WHEREFORE, plaintiffs pray judgment against defendant in the sum of 1000.00 (in hand writing)

S499^99 and for their damages sustained and for their costs in this action expended”. In connection with the altered figures shown above, we attach material significance to the following additional matters of record: (1) The magistrate’s docket contains the following entries in each case under the caption “DATE FILED, CAUSE OF ACTION AND DISPOSITION OF CASE”:

‘7-27-59 Pet. Damages $499.99 Set for 9/29/59 All papers to Circuit Court as of 9/25/59
CHANGE OF VENUE”

(2) The summons in each case, issued by the magistrate on July 27, 1959, described the petition as a

“PETITION FOR DAMAGES * * * and in which complaint the plaintiff demands judgment against said defendant in the sum of $499.99 together with interest and costs, * * *».

(3) The official record of the magistrate court in each case contains (only) the following recitals:

“On the 27th day of July, 1959, comes Plaintiff and files Petition for Damages in the sum of $499.99. Summons was issued with copy of petition and delivered to Sheriff of Cole County, Missouri, returnable on the 29th day of Sept., 1959, at 2 o’clock P.M. On the 29th day of July, 1959, the Sheriff of Cole County returned the said summons served, by delivering a copy of the same to Walter H. Toberman, Secretary of State of Missouri * * *.
“Change of Venue
“All papers to Circuit Court as of 9/25/59.”

We accord verity to the magistrate’s docket entries, his official certification in the summonses and his official entries of record, and conclude that the petitions as filed on July 27, 1959, in fact contained demands for the sum of $499.99, and not for the sum of $1000.00. We necessarily conclude further that the striking out of the figures $499.99 and the insertion of the figures $1000.00 were done at a time subsequent to the filing of the petitions. It is not necessary for us to conjecture upon the circumstances of or reasons for those alterations, or the identity of their author. Under the state of the record as we have found it to exist, we rule that the magistrate court acquired lawful jurisdiction of the subject matter of the suits when the petitions were filed and that such jurisdiction also vested in the circuit court when the cases were transferred to that court on changes of venue.

Defendant for the first time additionally suggests in its motion that the circuit court improperly consolidated the actions (together with a third one of identical nature) in violation of Section 482.090 V.A. M.S., and that the resultant effect was to increase the amount in controversy to a sum in excess of the jurisdiction of the magistrate court. Assuming without deciding' that such action by the trial court was error, it could not operate to destroy the lawful jurisdiction then vested in the court.

The motion is overruled.


text:
    Stella JOHNSON, Appellant, v. Mary WOODARD and Regina Goff, Respondents.
    No. 48743.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Jerome F. Duggan, Sidney W. Horwitz, St. Louis, Dubinsky & Duggan, St. Louis, of counsel, for appellant.
    Sidney R. Redmond, St. Louis, for respondents.
   PER CURIAM.

This is an appeal from an order and judgment of the Circuit Court of the City of St. Louis dismissing a petition for statutory partition of real estate. The St. Louis Court of Appeals, to which plaintiff originally appealed, transferred the case to this Court on the ground that the case involves title to real estate within the meaning of Constitution, Art. V, § 3, V.A.M.S. Johnson v. Woodard, Mo.App., 343 S.W.2d 646.

Stella Johnson’s amended petition for partition alleged that Sara C. Young, fee simple owner of the land, devised it by her last will and testament to Mary V. Woodard, Stella Johnson and Regina Goff, “to share equally, and to the survivor of them”; that the interests of the respective parties were “as follows: Stella Johnson, an undivided one-third interest; Mary Woodard, an undivided one-third interest; Regina Goff, an undivided one-third interest”; that partition could not be made in kind without great injury to the interests, of plaintiff and defendants; and prayed that the Court determine the right, title,, interest and estate of the parties, order partition and sale of the property, and a division of the proceeds. Defendants filed a motion to dismiss the amended petition, one ground of which was that “Plaintiff seeks in her petition to partition land which was left equally to her and to defendants Mary Woodard and Regina Goff ‘and to the survivor of them’; the relief sought is specifically prohibited by section 528.130 of the Revised Statutes of Missouri, 1949.”

On this appeal the plaintiff makes two points in support of its contention that the trial court erred in sustaining the motion to dismiss plaintiff’s amended petition. Plaintiff contends (1) that her petition was sufficient to state a cause of action for partition, and (2) that it was error to dismiss the petition on the basis of Section 523.130, RSMo 1949, V.A.M.S. (see Civil Rule 96.13, V.A.M.R.). Plaintiff takes the position in her brief that this devise did not create a life estate in the three dev-isees as joint tenants, with the remainder to the survivor of them, but that under Section 442.450, RSMo 1949, V.A.M.S., it created a tenancy in common between the three devisees, and therefore the court had jurisdiction to decree partition between co-tenants of a life estate. Defendants take the position in their brief that th,e will created a joint estate for life in the three devisees, with a contingent remainder in the survivor of them, and that the circuit court had no jurisdiction to partition land devised to life tenants and a contingent remainderman.

In order for a case to involve title to real estate within the meaning of the Constitution, Art. V, § 3, V.A.M.S., the judgment “must adjudicate a title controversy. The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another.” Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771, 774. In Hull v. McCracken, 327 Mo. 957, 39 S.W.2d 351, the owner of land devised certain fractional interests in the land to named persons, and gave his executor power to sell the real estate to carry out the terms of his will. One of the devisees brought a partition suit against the other devisees and the executor, claiming the devisees were tenants in common. The case was defended on the ground that the land was not subject to partition because partition would contravene the will; that the devisees took no right, title or interest in the land subject to partition as real estate; that the will converted the land into personalty. Plaintiff’s interest as given by the will was not disputed but it was contended there was an equitable conversion of the land. This Court held there was no title controversy whereby the judgment would take title out of one party and put it in another; that the question was one of construction, to determine “what rights the will gives the devisees on the one hand and the executor on the other * * * ”; that no matter which way this question was answered “the title of the devisees will not be taken out of them, or any of them, and put in one of the other parties to this action,” 39 S.W.2d 1. c. 354. The cause was retransferred to the Kansas City Court of Appeals. In Kaufmann v. Kaufmann, Mo.Sup., 40 S.W.2d 555, a partition suit, plaintiffs claimed the parties plaintiff and defendant were owners of thereat estate in fee simple as tenants in common. Defendants, conceding the parties were tenants in common in the fractional amounts as alleged, contested the right of plaintiff to maintain the suit on the ground that the will under which the parties held title vested in them a bare legal title in trust for certain purposes mentioned in the will. The determinative question was whether the partition sought was contrary to the intention of the testator as expressed in his will. Citing Hull v. McCracken, supra, and other authorities, it was held that title to real estate was not involved in such sense as to confer appellate jurisdiction on this Court. In Brockman v. St. Louis Union Trust Co., Mo.Sup., 38 S.W.2d 1010, a partition suit, plaintiffs claimed the parties plaintiff and defendant held their undivided interests in certain fractions. Some of the defendants filed a demurrer to the petition alleging that to partition the land would be contrary to the intention of the testator as expressed in his will, which gave a power of sale to a trustee. Holding that “On the record, the only question for determination is the right of plaintiffs to partition, * * and that “The question of title is not presented for determination,” the case was transferred to the St. Louis Court of Appeals. In Farmer v. Littlefield, 355 Mo. 243, 195 S.W.2d 657, 658, plaintiff brought a partition suit claiming that he and defendants were tenants in common. Defendants, not denying the rights and interests of the respective parties, contended that because of a provision in the will by which the parties held their interests in the land they were not to become tenants in common until after the expiration of an option—that the right to partition was postponed until then. The case was transferred to the Kansas City Court of Appeals on the ground that the title to real estate was not involved within the meaning of the constitution; that the real question involved was “whether the partition sought is contrary to the intention of the testator as expressed in his will.” In Mack v. Mack, Mo.Sup., 281 S.W.2d 872, 874, this Court said: “If the sole question involved is the mere right to prosecuté' the action, not the substantive fact of actually partitioning real estate in such a manner as to affect the title to the land, title to real estate is not involved.”

Under these cases appellate jurisdiction is in the St. Louis Court of Appeals. Mary, Stella and Regina, the dev-isees, were each devised an identical one-third interest in the real estate. The nature, quality and extent of these identical interests depends and hinges upon a construction of the will. The only question before the trial court on the motion to dismiss and the only question before the court on appeal, is plaintiff’s right to partition the real estate, in view of the manner in which it was devised by testatrix when considered in the light of § 528.130, supra; i. e., whether the partition sought is contrary to the intention of the testatrix as expressed in her will. This is a question of will construction, which the courts of appeal have jurisdiction to review on appeal. The question of title to .real estate in the constitutional sense is not presented for determination, because no matter which way the court decided the motion to dismiss or should eventually decide the lawsuit on the merits, title wpuld not be determined “adversely” to* one litigant and in favor of another in the constitutional sense, or taken out of one and put in another party to the action. Each of the three parties, regardless of what construction the court might place on the will, would emerge from the litigation with exactly the same interest—either a one-third interest in the land with a right of survivorship, or a one-third interest in the proceeds of the sale of the land. The judgment sought would not determine title adversely to plaintiff and in favor of defendants, or take title from plaintiff and put it in defendants. The same is true of the judgment actually rendered, which merely was an order sustaining the motion to dismiss, and dismissing the petition. The question of title to real estate in the constitutional sense is not presented for determination. Compare Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W.2d 63; Clevenger v. Odle, 329 Mo. 387, 44 S.W.2d 622; Rawlings v. Rawlings, Mo.Sup., 39 S.W.2d 367; Cherry v. Cherry, Mo.Sup., 210 S.W.2d 78. The cause is retransferred to the St. Louis Court of Appeals.

All concur.

      . “No partition or sale of lands, tenements . or hereditaments, devised by any last will, shall be made under the provisions of this chapter, contrary to the intention of the testator, expressed in any such will.”

      . “Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.”


author: WESTHUES, Presiding Judge.

text:
    Sylvia DANSKER, Plaintiff-Appellant, v. Belle GELB, Defendant-Respondent.
    No. 48725.
    Supreme Court of Missouri, Division No. 1.

    Dec. 11, 1961.
    Charles M. Tureen, St. Louis, Jack H. Ross, Clayton, William L. Mason, Jr., St. Louis, for plaintiff-appellant.
    Herbert E. Barnard, James E. McDaniel, McDonald, Barnard, Wright & Timm, St. Louis, for defendant-respondent.
   WESTHUES, Presiding Judge.

This is an action for damages for personal injuries alleged to have been sustained when plaintiff, Sylvia Dansker, on June 4, 1959, fell down a flight of stairs at defendant’s (Belle Gelb’s) home when plaintiff was frightened by a dog. A trial resulted in a verdict for plaintiff in the sum of $23,500. The trial court sustained defendant’s motion for a new trial and plaintiff appealed.

Plaintiff, in her petition, based her cause of action on the theory that the defendant “owned, harbored and controlled a certain dog which was of and possessed a mischievous and vicious propensity, and was of the habit of attacking persons without cause or provocation.” It is stated further therein that prior to the day plaintiff was injured defendant “knew or could have known of the vicious and mischievous propensities of said dog.”

The trial court granted a new trial “on points 1 and 11” of the motion for a new trial. These assignments read:'

“1. The verdict is against the evidence.”
“11. The Court erred in giving and reading to the jury erroneous, misleading, illegal and prejudicial instructions requested by plaintiff, and erred in giving each and every instruction given on behalf of plaintiff.”

The motion for new trial contained 23 assignments of error. No. 2 read as follows: “The verdict is against the weight of the evidence.” Only two instructions were given at plaintiff’s request. They were No. 1, which submitted the case to a jury on the merits, and No. 8, which concerned the measure of damages. The trial court, in a memorandum which was filed with the case, set forth specifically the reasons for granting a new trial. We shall refer to this memo later in this opinion.

The above statements concerning the action of the trial court in sustaining the motion for a new trial should be kept in mind in considering the correctness of the court’s ruling in view of the evidence. The defendant, in support of the trial court’s action, argues that granting a new trial on the ground that the verdict is “against the evidence” is equivalent to stating that the “verdict is against the weight of the evidence.” Further, defendant says that the evidence was insufficient to support a verdict for plaintiff.

Plaintiff, in the brief, contends that the trial court was in error in granting a new trial and argues that in this case the court in stating that the “verdict is against the evidence” did so on the theory that plaintiff had failed to prove a case. Plaintiff says further that the evidence was ample to support the verdict. We are of the opinion that plaintiff’s contention must be sustained.

There was not a sharp dispute in the evidence as to what occurred. Plaintiff, the defendant, and three other women had been meeting at each other’s homes about once a week during the past ten years to play mahjong. On the evening of June 4, 1959, these ladies were to meet at defendant’s home. Plaintiff was the first to arrive and while waiting for the others, defendant suggested to plaintiff that she go to the basement with her to look at some furniture. After doing so, defendant told plaintiff she would like plaintiff to see her dog. It was then about eight-thirty o’clock in the evening. Plaintiff gave the following testimony:

“Q. Then what happened when you got upstairs ? A. Well, we got to the top of the landing and she mentioned something about her dog who she had previously mentioned about having difficulty with.”

Defendant, in her brief, described what occurred as follows: “The two ladies then proceeded back upstairs. The stairway goes up straight from the basement to a landing on the first floor. There is an ac-cordian-type door at the top of the stairs, and on the opposite side of the landing is a door leading on the outside. To the right of the landing was the -kitchen, and to the left was the dining area. The landing is big enough for the outside door to open inward. As plaintiff came up the stairway to the landing, Mrs. Gelb told plaintiff she would like plaintiff to see the dog and then opened the back door and pushed open the screen door. * * * When Mrs. Gelb opened the screen door, the dog came in, raised up on his hind legs, and plaintiff stepped backwards at least a foot to the edge of the steps and fell down the stairs to the bottom of the landing. There is no evidence that the dog touched plaintiff.”

Note plaintiff’s evidence as to what occurred :

“Q. Then what happened as ycu were standing there when she pushed the door open to whatever degree it was and you were standing in this position, then what occurred ? A. Then the dog, I heard him, could hear him, but I was under the impres ;ion that he was further out in the yard. I mean, I had intentions of just stepping out on to the little porch, whatever it is there, to see the dog, but as soon as she opened the door, why he just came right in.
“Q. Was the dog making any sound? A. He was making sounds and growling and he jumped and lunged up on me and he towered over me. I mean, I just looked and there this black thing towering over me, and I could see his teeth.
“Q. Was it a large dog? A. Yes, he was large enough to tower over me.
“Q. Did he come directly toward yop? A. Yes, he did, because I was standing right in the center there.
“Q. And you say the dog did raise up? A. He .raised up on his hind legs, far enough in, close enough to me, practically on top of me.
“Q. And when this happened, what did you do? A. I jerked back. I mean, it was just a natural reflex, a jerk back, and I just went down the stair.
“Q. You fell down these basement stairs? A. Yes.”

Defendant did not dispute that evidence. Note her evidence given on cross-examination :

“Q. Were you in a position where you could see her when she fell down the stairway? A. It all happened so quickly, I just really don’t remember.
“Q. Well, let me ask you this. You heard her testify and describe what happened and how the dog, when he came, in, lunged up and that she jerked back to get out of the way. A. Yes, sir, yes, sir.
“Q. Is that what happened? A. Yes, it was, sir.
“Q. Did Mrs. Dansker say anything that was untrue to your knowledge? A. No, sir.”

Defendant, on direct examination, testified to the following with regard to the dog’s being tied:

“Q. Now, where did you have this, dog tied to, a stake, what did you have ? A. There is an electric meter in the back yard on a very strong pipe and we had him attached to that.
“Q. When did that start, with reference to June fourth, before June fourth, a matter of weeks or what?" A. We always had him on there.
“Q. After he grew up, is that ith A. That is right.
“Q. How far would that leash or chain or rope extend? A. Well, towards the house or towards the fence. The dog could come to the kitchen door and just go inside the door and sit and lay right by the screen door, but no further.”

It was in evidence that the dog was at the time of the occurrence about nine months old and rather large. The defendant had acquired the dog when he was a pup.

Defendant, on cross-examination, admitted that the dog had, prior to the occurrence in question, lunged at a neighbor and that the neighbor in jumping to avoid the dog had injured his back. She further admitted that the garbage men were afraid of the dog and that the family had talked about getting rid of the dog. She testified that the dog was very friendly to children and members of the family but often otherwise toward adult strangers. Note her evidence:

“Q. (By Mr. Ross) Mrs. Gelb, as I understand it, what trouble had occurred with this dog was toward strangers not towards your family, that the dog was brought up with, isn’t that correct? A. Towards adults, adult strangers.
“Q. And, of course, Mrs. Dan-sker, to this dog, would be an adult stranger? A. Yes, sir.
“Q. So there is no contention here that the dog ever harmed your own children or people that the dog knew; the trouble was all concerning adult strangers ? A. That is .right.
“Q. And you say that the dog when your daughter had it out on this leash or chain or whatever it was, did the dog jump up or lunge on its hind legs at this person? A. He tried to. She pulled the leash back.
* * * * * *
“Q. And you had received complaints from the trash men prior to this occasion that they were frightened of your dog, in other words, the actions your dog took toward these men, they advised you frightened them? A. His barking frightened them.”

There was no evidence whether the home where defendant and her family lived was owned by any member of the family or whether it was rented. Further, there was no specific evidence whether defendant or any member of the family owned the dog. In reference to ownership, the questions addressed to defendant always included the words “your dog.” Defendant referred to the dog as “our dog.” No protest was ever made that such reference was incorrect. No member of the family, except defendant, testified. One other witness, a neighbor, testified for the defendant. She stated that the dog was friendly with her children.

It is difficult to understand that a trial court would, in view of that evidence, sustain a motion for new trial on the theory that the verdict for plaintiff was against the weight of the evidence, As we shall attempt to demonstrate, the trial court did not grant a new trial on that ground. First of all, in the second assignment of error, defendant stated that a new trial should be granted because the verdict was against the weight of' the evidence. This assignment must be presumed to have been overruled for the reason that the trial judge in his order specified grounds “1 and 11” for granting a new trial. Numbers “1 and 11” do not throw much light on what the court had in mind so we look to the memorandum for enlightenment. See Hammond v. Crown Coach Co., 364 Mo. 508, 263 S.W.2d 362, 1. c. 364(1), and Bierman v. Langston, Mo., 304 S.W.2d 865. In each of those cases, this court ruled that where a trial court, in the order granting a new trial, assigned specific grounds for the ruling, the court’s memorandum could not be considered if it contradicted the order made. Tn the case before us, the order made by the trial court is ambiguous and therefore we look to the memorandum. This memo in no respect contradicts the order granting a new trial. Hammond v. Crown Coach Co., supra. Before we examine this memo, we wish to and do reaffirm what was said in that case, 364 Mo. 508, 263 S.W.2d 1. c. 366(2,3), of the futility of trial courts’ filing memorandums as a substitute for the requirement that “Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.” S.Ct. Rule 78.-01, V.A.M.R., and Sec. 510.330 RSMo 1959, V.A.M.S.

In the memorandum filed by the trial judge, it was stated that the evidence did not support a finding as required by instruction No. 1, that is, there was no evidence that the premises mentioned in the evidence were “defendant’s premises” or that the dog was owned by defendant and maintained by her upon her premises. It is stated in the memo that the dog may have belonged to the husband or another member of the family and that the premises may have been owned by the husband or may have been rented by the husband. This was followed by stating, “For error in Instruction No. 1, in assuming that the premises were ‘defendant’s premises’ and in submitting to the jury issues not supported by evidence, and because the verdict is not supported by substantial evidence, defendant’s motion for new trial is sustained on Points 1 and 11.”

It is apparent that the grounds on which the trial court granted a new trial are questions of law upon which there is no discretion.

We are of the opinion that not only did plaintiff’s evidence make a submissible case for a jury but that defendant’s evidence confirmed and supported plaintiff’s theory.

Instruction No. 1 was not erroneous in assuming that the premises in evidence were defendant’s premises. Defendant testified that the premises constituted the family home. It had been such for more than a year. Whether title to the property was in the husband or whether it was rented property was wholly immaterial. It was likewise immaterial whether the dog was the property of the husband, the wife, or the minor child. The evidence indicated it was a family dog. In the case of Carrow v. Haney, 203 Mo.App. 485, 219 S.W. 710, 1.c. 712, 713, the St. Louis Court of Appeals correctly stated the rule which is applicable to the case before us, as follows: “Appellants’ next contention is that Mrs. Haney would in no sense be liable, but we cannot uphold this contention. The husband, William Haney, was away from home at the time the plaintiff was attacked by the dog. It is admitted that plaintiff was invited upon these premises by Mrs. Haney. Plaintiff came in compliance with that invitation, and at the time suggested by Mrs. Haney. If she was lawfully upon these premises, and Mrs. Haney had invited her, or, if she had not invited her and she was lawfully upon the premises or had gone there for a lawful purpose, and the wife, in the absence of the husband, had permitted the dog to run loose upon the premises unguarded, when she knew that persons were likely to lawfully come upon said premises, then her acts of negligence in so doing would concur with the negligent acts of the husband in keeping the dog' and producing the injury, and, as stated in Charlton v. Jackson, 183 Mo.App. 613, loc. cit. 621, 167 S.W. 670, 672: * * See also Barber v. Hochstrasser, 136 N.J.L. 76, 54 A.2d 458, 1. c. 460 (1-7) (8).

The trial court cited Patterson v. Rosenwald, 222 Mo.App. 973, 6 S.W.2d 664, as authority for the statements made in the memorandum. The facts in that case were materially different from those in the case before us and the case is not an authority for the ruling made by the trial court.

Defendant’s evidence clearly showed that she possessed knowledge of the viciousness of the dog. Whether the dog lunged or jumped at people out of anger or viciousness or out of playfulness is immaterial so long as the defendant had knowledge of the fact that the dog had a tendency through his actions to injure persons. 3 C.J.S. Animals § 148c, p. 1250; Janus v. Akstin, 91 N.H. 373, 20 A.2d 552 (6); Perkins v. Drury, 57 N.M. 269, 258 P.2d 379, 1. c. 382(5-7); Owen v. Hampson, 258 Ala. 228, 62 So.2d 245, 1. c. 248 (7). Furthermore, the defendant testified, as noted supra, that she knew the leash on the dog was of sufficient length to permit the dog to enter the hallway where plaintiff was immediately before her fall. Defendant opened the door to permit the dog to enter.

Defendant has not briefed any point justifying the trial court in granting a new trial. For a history of “dog law” which traces it to antiquity see State ex rel. Kroger Company v. Craig, Mo.App., 329 S.W.2d 804.

No point has been made that the verdict was excessive. The evidence was that plaintiff was seriously injured. Defendant offered no evidence to the contrary. The family doctor testified at length concerning the injuries. The doctor stated the injuries to be as follows: “Well, medically the diagnosis would be multiple lacerations which in lay terms means cuts. Multiple contusions which ordinary terms means bruises, and in addition to this, multiple broken bone or fractures. These fractures affecting the spine. One of the bones of the spine and two areas of the pelvic bone.”

We rule that the trial court was in error in granting a new trial and our order must be that the cause be remanded to the trial court with directions to set aside the order granting defendant a new trial, to reinstate the verdict of the jury, and to enter a judgment thereon for plaintiff as of the date the verdict was rendered.

It is so ordered.

All concur.


text:
    Jean Ann BARTLETT, a Minor, By Her Father and Next Friend, A. G. Bartlett, Appellant, v. James W. GREEN, Respondent.
    No. 48448.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.

      Ben W. Swofford, Laurence R. Smith, Swofford, Smith & Waisblum, Kansas City, Rucker, Tabor, Best, Sharp & Shepherd, Tulsa, Okl., for appellant.
    William A. Rundle, Jr., Thomas D. Cochran, Morrison, Hecker, Buck & Cozad, Kansas City, for respondent.
   WESTHUES, Presiding Judge.

This is an action for $75,000 damages for personal injuries alleged to have been sustained by plaintiff on Sunday, September 23, 1956, when a car driven by the defendant left the roadway on U. S. Highway 69 .in the State of Kansas, a short distance south of Kansas City, Missouri. Plaintiff, a minor, two years and ten months old when she was injured, filed the suit by her father •and next friend in Jackson County, Missouri. The cause of action was based on the theory that defendant was guilty of .negligence in permitting the car to leave -the travel portion of the road and strike an embankment. Plaintiff and defendant’s wife were thrown from the car. We need not relate the injuries sustained because there was a verdict for the defendant. The case was submitted to a'jury on the Kansas Guest Statute which statute does not permit a guest to recover unless the defendant was guilty of “gross and wanton negligence.” Kansas G.S.1949, Sec. 8-122b; Perry v. Schmitt, 184 Kan. 758, 339 P.2d 36. Whether plaintiff was a guest within the meaning of the statute is one of the issues presented on this appeal.

As above indicated, a trial resulted in a verdict for the defendant. Plaintiff’s motion for a new trial was overruled and an appeal was taken from the judgment entered.

Before considering the merits of the case, we shall dispose of the defendant’s suggestion, made in the brief, that this appeal should be dismissed for the reason that plaintiff has not made a sufficient statement of the grounds vesting this court with jurisdiction. On page 1 of plaintiff’s brief, we find the following statements:

“This is a suit for Seventy-five Thousand ($75,000.00) Dollars in damages for personal injuries received by the plaintiff in an automobile accident.
“It is an appeal from a judgment for defendant, following a jury verdict for defendant, entered in Division 13 of the Circuit Court of Jackson County, at Independence. Plaintiff’s Motion for a New Trial was overruled.”

Defendant, in support of his suggestion to dismiss, cited the cases of Trokey v. United States Cartridge Co., Mo., 214 S.W.2d 526, 1. c. 527(1); Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507, 1. c. 508(1); and Langhammer v. City of Mexico, Missouri, Mo., 327 S.W.2d 831, 1. c. 833(1, 2). Those cases do not support defendant’s contention. Plaintiff’s statement as to jurisdiction is the very kind that S.Ct. Rule 1.08 requires, that is, a statement of facts and not conclusions. In each of the cases cited, the statement as to jurisdiction was substantially to the effect that the amount in dispute “exceeds the sum of $7,500.” Such statements are mere conclusions. But, to say this is an action for $75,000 and there was a judgment for the defendant and plaintiff has appealed are statements of facts, not conclusions. There is no merit in defendant’s point.

Plaintiff briefed three points. In the first, it is stated that the trial court erred in refusing to admit evidence tending to show that plaintiff was not a mere guest, that is, the transportation of plaintiff was to promote mutual interest and that defendant was to derive some benefit therefrom. In points two and three, plaintiff complained of the giving of instructions No. 7 and No. 8 requested by defendant.

Defendant contends there were no errors as plaintiff claims and further that the trial court should have directed a verdict for him at the close of all of the evidence. This is on the theory that the evidence was insufficient to sustain a finding that defendant was guilty of gross and wanton negligence.

We shall deal first with the question of the sufficiency of the evidence. Plaintiff’s father, A. G. Bartlett, and the defendant are brothers-in-law. Plaintiff’s mother and defendant’s wife are sisters. The Bart-letts lived in Tulsa, Oklahoma, and the Greens lived in Kansas City, Missouri. Mrs. Rexford Lane, living in Tulsa, and Mrs. John Meade, living in Oklahoma City, were also sisters of plaintiff’s mother. Mrs. Daisy Johnston, a widow and the mother of the four women mentioned, lived in Tulsa. On Saturday, September 22, 1956, the day before the occurrence in question, Mrs. Johnston underwent surgery at a hospital in Tulsa. It was in evidence that the four women, Mrs. Johnston’s daughters, were all in Tulsa on that day; that it was arranged that the daughters would take on nursing duties for their mother. Pursuant to that arrangement, plaintiff was to be taken by the Greens to their home in Kansas City so that Mrs. Bartlett would have more time to attend to the mother’s care.

About noon of Sunday, September 23 (the exact time was in dispute), the Greens with plaintiff left Tulsa for Kansas City. Defendant was at the time driving a Cadillac car which had been driven about 4000 miles and was practically new and in good condition. On this trip, defendant’s wife sat beside him in the front seat with plaintiff on her lap. Defendant drove from Tulsa to Picher over Highway 66 and from Picher north toward Kansas City over Highway 69. About a mile south of Stanley, Kansas, Highway 69, running due north and south, intersects an east-west gravel road known both as Black Post Road and as 159th Street. Defendant was driving north toward this intersection at about four o’clock on Highway 69. When he reached the crest of a hill, which was about 400 feet south of Black Post Road, he saw a pickup truck in the act of coming onto Highway 69 from the east from Black Post Road. The truck made a turn to the south on Highway 69. While the truck was thus being driven onto Highway 69, defendant traveling at a high speed attempted to slow down or stop his car and to manipulate it so as to avoid a collision. Defendant’s car did not collide with the truck but passed the truck on the west side ■of the pavement. It left the roadway, collided with an embankment, came back onto the roadway, and • same to a stop at the center of the intersection. The truck, when defendant’s car passed it, was on its right side of the road about 70 to 80 feet or so south of the center of the intersection. Defendant’s wife and plaintiff were thrown from the car. The car itself was damaged in a manner so as to make it difficult to determine just what occurred. The door on the right side of this two-door car was practically torn from the car. Defendant testified that the car did not turn over. The truck driver testified that his truck was at a standstill on the west side of the road where defendant’s car flipped over 'his truck, after it collided with the embankment, without touching the truck and ■rolled over several times. There was no •evidence of any damage to the top of the • car. Evidence concerning the manner in ■which defendant operated his car shows -the following: Defendant had traveled this ! highway quite often and knew the condition • of the road. The day was clear and the ; pavement was dry. The posted speed limit .at the point in question was 60 miles per '.hour. Defendant testified he was driving .at 70 m. p. h., and that he was fairly well .acquainted with Highway 69. When asked ■if he was acquainted with the intersection ■of Highway 69 and Black Post Road, he .answered, “No, there are too many intersections along 69 to be acquainted with ■them.” A number of witnesses testified as ■to defendant’s speed. One stated that he was driving north on Highway 69 at a speed ■of 60 m. p. h., a short distance south of Stanley, when defendant’s car passed him .at a high rate of speed. Another esti-mated the speed at 80 m. p. h., or more. .Defendant admitted he passed two cars shortly before he reached the crest of the 'hill south of Black Post Road. A highway patrolman testified as to what he found .at the scene of the accident as follows:

"Q. What was the first evidence or .indication of the path you- could trace ?
A. The first evidence of the path of the vehicle, what we call skidmarks. These skidmarks proceeded north in the northbound lane and then veered over to the embankment on the west side of the highway and then the marks proceeded on over across the Black Post Road leading up to where this car came to rest.
“Q. Did you measure the distance from the point where those skidmarks first started over to the embankment where it hit? A. I did.
“Q. What did that measure? A. The skidmarks themselves measured from where they began to the embankment, 290 feet of skidmarks.
“Q. What was the distance from the point on the embankment on down to where the Cadillac ended up ? A. After the car hit the embankment, it traveled 94 feet to where it came to rest.
“Q. That made a total of 384 feet that you could account for the distance, is that correct? A. Yes.
“Q. With reference to these skid-marks, I ask you to state, skidmarks shown on the highway, were they solid skidmarks or not? A. Yes, they were solid skidmarks.”

The patrolman gave as his opinion that the car was traveling “in excess of, I would say, of 70 miles an hour, around 80 or 85.”

In addition to the above evidence, it was shown that Highway 69 is a much traveled road. This casualty occurred with the weather good at about four o’clock on a Sunday afternoon. Taking all of those circumstances into consideration and the further fact that the evidence of what actually occurred showed that defendant saw the truck when 400 feet away and that he was unable to control his car to as to prevent a casualty, we must conclude that a jury could well find defendant was guilty .of gross and wanton conduct or negligence.

The defendant, in his brief, says that “The only evidence of negligence on the part of the defendant James Green was that of excessive speed. However, speed alone is not enough to constitute gross and wanton negligence. In Hickert v. Wright, 182 Kan. 100, 319 P.2d 152, 157 (1957)We have no fault to find with that statement. However, speed may constitute gross and wanton negligence depending upon the surrounding circumstances. A person driving at a speed of 70 m. p. h., on a busy city street, would most certainly he guilty of gross and wanton negligence. In the case before us, the defendant admitted that he was driving at 70 m. p. h. The evidence justified a finding that the speed was much greater. Defendant testified he was not acquainted with the intersection of Black Post Road and Highway 69 because there were too many intersections on that road for him to be acquainted with all of them. However, there was in plain view a sign informing defendant that he was approaching an intersection. Further, there were signs posted that the speed limit was 60 m. p. h. Then, too, there was traffic on the highway at the time. Defendant admitted he passed two cars shortly before he reached the crest of the hill. Note that in the case of Perry v. Schmitt, supra, where the question of gross and wanton negligence was in issue, a jury answered specific questions to the effect that: first; liquor and beer consumed by the defendant contributed to the accident; second, the proximate cause of the accident was high speed. The defendant in that case was alleged to have driven his car at 80 to 85 m. p. h. The court, in holding the evidence sufficient to submit the case to a jury, said (184 Kan. 1. c. 763, 339 P.2d 1. c. 40) : “In a long line of cases we have held that gross and wanton negligence under the guest statute means wantonness. An act has been held sufficient to constitute wantonness if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.”

In the case before us, the defendant testified that he had control of his car at all times and, yet, because of the speed of his car, he was not able to avert a catastrophe even though he noted danger ahead at a distance of approximately 400 feet. We must rule that the evidence was ample to support a verdict for plaintiff.

Was the plaintiff a guest under the Kansas statute ? In addition to the evidence with reference to the relationship of the parties, plaintiff offered to introduce the following evidence which the court excluded: that Mrs. Johnston, the grandmother of plaintiff, had no means of her own; that she would require constant nursing care during her stay in the hospital; that for the past ten years, the children had aided their mother in a financial way; that the Greens had taken income tax deductions for sums advanced to Mrs. Johnston; that the Greens took plaintiff to Kansas City so plaintiff’s mother would have more time to devote to taking care of Mrs. Johnston; that Mrs. Green could take care of her household duties and plaintiff; that by that arrangement nursing expense would be saved. In Ehrsam v. Borgen, 185 Kan. 776, 347 P.2d 260, 1. c. 264, the Kansas Supreme Court said: “In order to take a person riding in an automobile out of the guest status, it is not necessary that the compensation for the ride be a strict contractual consideration or that an enforceable contract relation relative to the ride should exist between the parties. Where the trip is-not purely social, any substantial benefit to the owner or operator of the automobile is sufficient to take the case out of the statute.” A reading of that case and other Kansas cases therein reviewed has convinced us that under the law of Kansas the proffered evidence should have been admitted.

Plaintiff urges that instruction No. 8, given at defendant’s request, was erroneous. This was a burden-of-proof instruction which concluded as follows: “ * * * unless you believe and find from the evidence in the case that plaintiff has proven by a preponderance of the credible testimony that the defendant, James Green, was guilty of gross and wanton negligence as defined and submitted to you in the instructions of the Court, and that such gross and wanton negligence was the direct and proximate cause of plaintiff’s injuries, then your verdict must be for the defendant, James Green.” (Emphasis supplied.) The defendant cited three cases in support of the instruction: Caldwell v. St. Louis Public Service Co., Mo., 275 S.W.2d 288; Fawkes v. National Refining Company, 341 Mo. 630, 108 S.W.2d 7; and Layton v. Palmer, Mo., 309 S.W.2d 561, 66 A.L.R.2d 1242. Oddly, the plaintiff cited the same cases in support of her contention that the instruction does not state the law correctly. We are of the opinion that the instruction should not have been given. It was defendant’s contention at the trial that the truck driver was negligent and that such negligence was the cause of plaintiff’s injuries. For sake of argument, let us assume that the truck driver was guilty of negligence. However, if the defendant was also negligent and if such negligence contributed to cause plaintiff’s injuries, the defendant would be liable in damages and be sued alone therefor. 65 C.J.S. Negligence § 110c, p. 682; Byars v. St. Louis Public Service Co., 334 Mo. 278, 66 S.W.2d 894, 1. c. 900 (6, 7); Caldwell v. St. Louis Public Service Co., Mo., 275 S.W.2d 288, 1. c. 292, 293(3) (4, 5); Fawkes v. National Refining Company, 341 Mo. 630, 108 S.W.2d 7, 1. c. 11 (11-15).

Instruction No. 7, complained of by plaintiff and given at defendant’s request, purported to define the phrase “gross and wanton negligence.” It is long and involved. It is repetitious and difficult to understand. Instructions defining words and phrases should be brief. On a retrial,, the court should not give more than one instruction defining the phrase and it should be plain and concise. We call attention to one sentence in the instruction which we deem not to be in harmony with the Kansas-case law. It required a finding by the jury that the defendant, to be found guilty of gross and wanton negligence, must have-realized the imminence of injury to others. Note how that portion of the instruction-reads : “ * * * the actor must be deemed' to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because he was indifferent to whether it occurred or not.” The wording of the instruction seems to have been taken from-the opinion in the case of Bailey v. Resner, 168 Kan. 439, 214 P.2d 323. The Supreme Court of Kansas, in Perry v. Schmitt, supra, 184 Kan. 1. c. 763, 764, 339 P.2d 1. c. 40, had before it an instruction which advised the jury that the defendant must have actually realized the imminence of danger of injury to permit a finding of gross and wanton negligence. The trial court had refused to-give such an instruction. The court referred to the Bailey case, supra, and went on to say, “For our recent holding on this subject see Hickert v. Wright, 182 Kan. 100, 104, 105, 319 P.2d 152. Therefore, defendant’s contention that the court erred in refusing to submit to the jury his requested special question as to whether he actually realized the imminence of danger of injury is without merit.”

On a retrial, instruction No. 7, in its present form, should not be given.

For the errors indicated, the judgment is reversed and the cause remanded.

It is so ordered.

All concur.

      . Now Civil Rule 83.05, V.A.M.R.


author: HOLLINGSWORTH, Judge.

text:
    In the Matter of Margaret Ruth McDUFFEE (Formerly Known as Margaret Ruth Bramble), a Minor. John W. McDUFFEE and Virginia McDuffee, Petitioners, Appellants, v. Arthur K. REHM, Guardian ad Litem for Margaret Ruth McDuffee (Formerly Known as Margaret Ruth Bramble), a Minor, Respondent.
    No. 48712.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1961.
    Arthur K. Rehm, Clayton, Guardian ad litem for Margaret Ruth McDuffee, a Minor; and for respondent.
    F. X. Cleary, Paul S. Brown, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellants.
   HOLLINGSWORTH, Judge.

This action was brought in the Circuit Court of St. Louis County on November 19, 1958, to annul a decree of adoption of a minor child rendered in the juvenile division of that court on April 12, 1956. The petitioners, husband and wife, are the adoptive parents and the respondent is the duly appointed guardian ad litem of said child. The trial court, on motion of the guardian ad litem, dismissed the petition for failure to state a claim on which relief could be granted. Petitioners appealed to the St. Louis Court of Appeals, where the judgment of the trial court was affirmed. 341 S.W.2d 315. Thereafter, on application of petitioners, the cause was transferred to this court in accordance with the provisions of Art. V, § 10, of the Constitution of Missouri, V.A.M.S., and S.Ct. Rule 84.05, V.A.M.R.

The petition alleged:

“1. That, on April 12, 1956, [the Juvenile Division of the Circuit Court of St. Louis County], upon evidence and proof adduced and upon the report and answer of a duly appointed acting guardian ad litem for Margaret Ruth Bramble, found as follows :
“A. That Omar Lee Bramble and Goldie Juanita Bramble, his wife, are the father and mother of Margaret Ruth Bramble and that for more than one year before the filing of the petition for adoption, to wit, since December 10, 1954, did willfully abandon said Margaret Ruth Bramble and did willfully neglect to provide her with proper care and maintenance.
“B. That the Juvenile Division of the Circuit Court of Pettis County, Missouri on December 21, 1954, committed the custody of said child to the Children’s Home Society of Missouri, a charitable corporation of Missouri.
“C. That said child, having been placed with petitioners by said society for a period of probation prior to adoption, was in lawful and actual custody of petitioners for more than nine months prior to the entry of this decree of adoption.
“D. That said society consented in writing to the adoption of said child by petitioners.
“2. That [the Juvenile Division of the Circuit Court of St. Louis County] ordered and decreed that petitioners’ petition for adoption of Margaret Ruth Bramble be approved, and that from said date of April 12, 1956, said child was the child of petitioners as fully as though born to them in lawful wedlock, and the Court further decreed that the child’s name of Margaret Ruth Bramble be changed to Margaret Ruth McDuffee.
“3. That Margaret Ruth McDuffee is an 11 year old child who is suffering from mental disturbance and the existence thereof is demonstrated by anti-social behavior, poor development of conscience and complete lack of guilt over said behavior. Further, said child needs protective environment of an institutional kind for her own welfare and that of society.
“4. That said serious mental disturbance of said child had its beginning at an early age when damage to her personality and character occurred prior to her being placed in custody of petitioners and prior to the decree of adoption heretofore granted.
“5. That it would be to the best interest of said child that the aforesaid decree of adoption be annulled and said child be placed in the custody of an institution equipped to handle her mental instability with its attendant behavior pattern.”

The prayer was that the decree of adoption be annulled and that all rights and obligations that accrued by reason thereof be set aside and for such further and other relief as to the court should seem meet and proper.

Appellants contend that the trial court erred in sustaining respondent’s motion to dismiss “for the reason that appellants, by averring the fact of adoption, the fact of mental disturbance requiring institutional care, personality and character damage, the origin of which predated the adoption, and further averring that an adoption annulment would be in the minor child’s best interest, have stated facts sufficient for the trial court to exercise its power to annul or revoke its former adoption decree.”

Respondent says the trial court correctly ruled the motion and that once adoption was validly decreed on April 12, 1956, which under Section 510.370 RSMo 1959, V.A.M.S. (superseded by St.Ct. Rule 75.01), became a final judgment after the expiration of 30 days, the trial court was without jurisdiction to set it aside on any ground other than those specified in Section 453.130 RSMo 1959, V.A.M.S. (All statutory references herein are to said revision unless otherwise indicated.) That section provides:

“Whenever a person adopted under the provisions of this chapter shall develop venereal infection as a result of conditions existing prior to the time such person was adopted, or shall develop feeble-mindedness or epilepsy, or shall prove to be a member of a race, the members of which are prohibited by the laws of this state from marriage with members of the race to which the parents by adoption belong, a petition setting forth such facts may be filed at any time within five years after such adoption with the court which decreed the adoption, and if on a hearing the facts in such petition are established, the said court may enter a decree annulling the adoption and setting aside any and all rights and obligations that may have accrued by reason of said adoption.”

Concededly, the petition here does not allege and appellants do not contend that it is predicated upon any of the grounds enumerated in § 453.130. Appellants’ position is that the jurisdiction of the circuit court is not limited to the grounds enumerated in § 453.130; that in instances such as is pleaded in this case, the circuit court may annul adoption decrees upon such grounds as would entitle a court of equity to vacate any other decree; and that one of the grounds generally recognized and accepted as warranting the exercise of equitable jurisdiction to annul a prior valid adoption is plea and proof of facts demonstrating that annulment will best promote the welfare of the child.

In addition to numerous citations from the courts of other states, appellants also rely upon the case of In re Zartman’s Adoption, 334 Mo. 237, 65 S.W.2d 951, in support of their contention that jurisdiction of the circuit court to annul a decree of adoption is not limited by § 453.130. In that case, the petition of Wubenhorst and his wife to adopt Zartman, a minor, was filed in, heard by and, at the May 1930 Term of the Juvenile Division of the Circuit Court of Jackson County, sustained and adoption as prayed was decreed. Thereafter, at the same term, the guardian ad litem filed a motion to set the decree aside on grounds of unfitness of one of the petitioners to be an adoptive parent, which motion was set for hearing at the same term on September 6, 1930, due notice of which was given to the petitioners. Prior to that date, however, the trial court, acting of its own motion and without notice, set the decree aside. Upon learning of the action of the court, petitioners moved to set aside the latter order and for a hearing on the merits. The trial court denied the motion and petitioners appealed to this court. One of the grounds urged on appeal was that the juvenile court of Jackson County was a court of limited powers, a creature of statute, and that the only powers given it with reference to annulment of adoption decrees were those enumerated in § 14080 R.S. 1929, which now is § 453.130, supra. The Supreme Court disposed of that contention adversely to the appellants by holding that the statutes relating to adoption constituted a complete code within themselves, jurisdiction of which was vested in the juvenile division of the circuit court, and that, inasmuch as the petition for adoption was heard, adoption was decreed and thereafter set aside in a division of the Circuit Court of Jackson County, for convenience designated the Juvenile Division, that division was vested with all of the jurisdiction of the circuit court of which it was a part. So concluding, the court said of § 453.130 (then § 14080 R.S. 1929), loe. cit. 65 S.W.2d 954: “What we have just said also answers the contention that the only power the court possessed to set aside a decree of adoption is that conferred by section 14080, R.S.1929 (Mo. St.Ann. § 14080, p. 828), providing for setting aside or annulling a decree of adoption by petition filed within five years after the adoption on the specified grounds there mentioned. Such statute merely enlarges the common-law grounds for setting aside such decrees.”

In considering the extent to which the above quoted portion of the opinion of this court in the Zartman case should control the disposition of this case, the Court of Appeals noted that notwithstanding the above quoted statement this court nevertheless had gone on to hold the decree of annulment rendered in that case was void for lack of due process and remanded the case for hearing on the merits. This fact led the Court of Appeals to conclude and hold, 341 S.W.2d 1. c. 318: “But in the case at bar we are not dealing with an original adoption which has not become final, but with a proceeding in which petitioners seek to annul a decree which no longer rests within the breast of the court. In view of the factual difference between the case at bar and the Zartman case it is our opinion that the latter lends no support to appellants’ contention that a court may at any time annul a final decree of adoption on grounds other than those enumerated in section 453.130, supra. The effect of the statute (453.130) is to extend the jurisdiction of the court beyond the ordinary period during which it retains jurisdiction for the purpose of setting aside judgments in adoption cases, by granting to-it power, after that period, to annul decrees on the grounds enumerated — a power it did not possess under the law prior to-the enactment of the statute. That, in our opinion, is what the court in the Zartman case meant by the language-which we have heretofore quoted.” For the reasons hereinafter stated, we cannot agree with that conclusion.

It is often asserted that adoption-of children was unknown at common law and the subject is generally said to be-governed and limited by the statutes. See-opinion, Court of Appeals, this case, 341 S.W.2d 315, 317 [1], and authorities therein cited. Other than the statement made-by this court in the Zartman case, supra,., there is a dearth of direct authority in this state as to the circumstances under which a decree of adoption may be set aside. But we entertain no doubt that the broad equitable powers vested in our courts of general jurisdiction (and which are also vested with jurisdiction of the-laws of this state relating to adoption)empower them to vacate a decree of adoption upon any of the classical grounds-that entitle such courts to vacate any other decree, such as judgments procured by fraud or to prevent injustice where such final judgments were the result of unavoidable accident or excusable mistake. Johnson v. Stull, Mo., 303 S.W.2d 110, 115; Contrare v. Cirese, Mo., 336 S.W.2d 485, 489; and Nealon v. Farris, Mo.App., 131 S.W.2d 858, which considered the question of annulment of a prior valid decree of adoption.

The appellate courts of several of our sister states have held that in cases where the court which granted a valid adoption is a court of limited jurisdiction it may •not thereafter annul its former valid decree, in the absence of specific statutory authority so to do. Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880; In re McDevitt, 176 App.Div. 418, 162 N.Y.S. 1032. Both of these cases agree, however, that a court of equity has power to set aside a decree of adoption where it is to the best interest of the •adopted child and particularly where all parties in interest agree. None of these ■cases is, however, dispositive of the precise question presented in this case. No contention is made that fraud, accident or mistake entered into the rendition of the decree here sought to be annulled.Appellants’ motion pleads a valid decree •of adoption and seeks to set it aside upon' the ground that the “best interest” of the ■child, weighed in the light of the facts pleaded, will be thereby served.

The sole ground upon which adoption may be decreed in this state is that prescribed by § 453.030, which provides: “In all cases the approval of the court of the adoption shall be required and such approval shall be given or withheld as the welfare of the person sought to be adopted may, in the opinion of the court, demand.” The question is, therefore, does the circuit court, inherently possessed of broad equitable powers and further vested by statute with jurisdiction to decree or withhold adoption solely upon the basis of the welfare of the person sought to be adopted, have jurisdiction, in the proper case, to annul thenceforward a priorly rendered valid decree of adoption upon finding that the welfare of the child now demands that the adoption thenceforth stand vacated ?

Research of the cases and comment found in the following authoritative references has convinced us that upon clear showing that the higher welfare of the child demands such action courts of equity may so annul a valid decree of adoption: Annotation, 2 A.L.R.2d pp. 888-912; 2 C.J.S. Adoption of Children § 45 pp. 433-437; 1 Am.Jur., Adoption of Children, § 72, p. 671.

The cases cited and discussed in the extended annotation in 2 A.L.R.2d pp. 888-912, clearly support the following conclusions: that, inasmuch as the welfare of the child (which frequently requires consideration of many factors) is ever paramount in decreeing adoption, the same principle is likewise a major factor to be considered in connection with such other factors affecting justice and fairness to all persons concerned as shall, in the sound discretion of the chancellor, determine the merits of an action to annul thenceforward a prior valid decree of adoption. Despite, however, the. primacy of the welfare of the child as grounds for adoption or annulment, the courts evince a decided reluctance to annul such a decree and especially' is that the case where the annulment is sought by the adoptive parents. Thus, in Buttrey v. West, 212 Ala. 321, 102 So. 456, the court denied the adoptive parents’ petition to annul their declaration of adoption of a then 20-months’ old child and presently 12 years of age upon grounds that she was “disobedient”, “disrespectful”, “incorrigible and recalcitrant”. And, in the absence of some compelling reason not here shown, we think it should never be done solely at the instance of the adoptive parents (in cases other than those enumerated in § 453.130) where the child would be cast aside to become a public charge and the adoptive parents freed of the obligations of parenthood by them voluntarily assumed in obtaining the adoption. See Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859, 861, 2 A.L.R.2d 880, 885.

Considered in the light of the conclusions above reached, the petition in the instant case is clearly insufficient. Assuming that, as alleged, the child is mentally disturbed and in need of institutional care, petitioners’ plea that annulment of the obligations of parenthood placed upon them by adoption is in the best interest of the child is utter non sequitur. Countless parents find themselves confronted with similar situations. In most instances, to the extent of their means and, when necessary, by acceptance of such aid, public or private, as is available, they achieve the crowning satisfaction of procuring the treatment needed by such children. The record in this case shows that the natural parents abandoned their child. It cannot now be in the best interest of that child that a court of equity, on petition of its adoptive parents, decree it a similar fate.

The judgment of the trial court was for the right party and is affirmed.

All concur.