text:
    John H. LUND, Plaintiff-Respondent, v. R. H. DALTON and Mildred Dalton, Defendants-Appellants.
    No. 24027.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.

      Keith Wilson, Jr., Independence, for appellants.
    Alan B. Slayton, Reese, Constance & Slayton, Independence, for respondent.
   CROSS, Judge.

Defendants prosecute this appeal from a judgment entered upon a jury verdict awarding plaintiff a real estate sale commission in the sum of $3500.00.

Plaintiff is a licensed real estate broker. During the time in question defendants, husband and wife, were the owners of a tract of real estate referred to in the evidence as a 35 acre farm located in the vicinity of 39th Street in Independence, Missouri.

On June 20, 1959, the parties entered into a valid and binding written agreement entitled “Exclusive Sales Contract”, by the terms of which plaintiff undertook to sell defendants’ 35 acre tract, and defendants gave him “the irrevokable right to sell said property” for a period of 120 days, and agreed to pay plaintiff a commission of 5% of the purchase price received from a sale effected by him in accordance with the terms of the contract.

The contract contains two clauses which have given rise to this controversy. These provisions were written by hand in blank spaces preceded respectively by the previously typewritten words “REAL ESTATE”' and “TERMS OF SALE”. The two clauses in their entirety read as follows:

“REAL ESTATE: 15310 E. 39th Street, consisting of 35 acres more or less including improvements.
Price $70,000.00.”
“TERMS OF SALE:
To be agreed upon”.

The parties differ sharply and there is material conflict in the evidence as to the meaning intended by them in the use of the quoted contract language. Defendants insist that the stated “price” of $70,000.00 was not understood and intended to represent a cash consideration, but that the parties had agreed, prior to signing the contract, that defendants were to receive another farm in exchange for their own, and that the stated sum of $70,000.00 was intended to represent a total value of consideration. On the other hand it is contended by plaintiff that the language in question is a true, literal expression that the defendants had authorized him to sell their farm for cash, and cash only, in the stated sum of $70,-000.00, and that the only terms subject to ■agreement were in respect to the time and ■manner of payment of the $70,000.00.

Defendant R. H. Dalton testified that when the parties discussed the terms of the subject contract, he told plaintiff that the property was not for sale for cash money, hut that he wanted and would require that another farm be taken in trade. It was plaintiff’s testimony that defendants named their own price of $70,000.00 as a selling figure, that the parties agreed upon the sum •of $70,000.00 as the selling price acceptable to defendants, and so provided in the contract, and that no other basis of sale or •exchange was discussed by the parties or •suggested by defendants. Plaintiff specifically denied that there was any discussion with defendants about an exchange of farms or that Mr. Dalton said he wanted to take his money as a “swap” or “exchange” •of another farm.

Plaintiff further testified that about two •or three weeks after the contract was signed he was informed by Mr. Dalton and thereby learned for the first time that defendants were insisting they receive a farm in exchange as a basis for the sale of their 35 acre tract.

As a courtesy and accommodation to defendants, so plaintiff testified, he tried to “find a farm to exchange”, did in fact locate two farms that were available for trade, and accompanied defendants to look at them, but defendants rejected both farms as unsuitable and unsatisfactory.

On the 16th day of October, 1959, and prior to the expiration of the 120 day exclusive listing period provided by the sales contract, plaintiff produced a purchaser in the corporate person of Jacomo Development Company which was willing and able to buy defendants’ farm for the stated purchase price of $70,000.00. To that end and still within the 120 day listing period, plaintiff obtained and presented to defendants, for their acceptance, two written real estate sales contracts duly executed by Jacomo Development Company, together with earnest money checks. Both contracts were dated October 16, 1959, and provided for a sale of defendants’ farm to Jacomo for the total price of $70,000.00, but the instruments recited alternate terms of initial and deferred payments to be selected at defendants’ option. Plaintiff also communicated a verbal offer made by Jacomo to pay the entire purchase price in cash upon delivery of defendants’ deed. Defendants rejected both written contracts and Jacomo’s verbal offer and informed plaintiff they would not sell for cash on any basis.

On December 8, 1959, and after the 120 day term of plaintiff’s exclusive listing contract had expired, defendants sold their farm to Jacomo by a three party trade transaction through which they obtained a tract of land known as the Willie Clear farm.

Defendants’ first point is an assignment that the trial court erred in giving plaintiff’s verdict directing instruction, Number 1, the text of which is as follows:

“The Court instructs the jury that if you find and believe from the evidence that the plaintiff, John H. Lund, on one part, and the defendants, R. H. Dalton and Mildred Dalton, on the other part, entered into the exclusive sales contract dated June 20, 1959, regarding the sale of the 35 acre Dalton tract located at 15310 East 39th Street in Jackson County, if so, and if you further find that according to the terms of said exclusive sales contract the defendants agreed to sell their said 35 acre tract for the sum of Seventy Thousand ($70,000.00) Dollars, and to accept cash for the purchase price for their equity in the said property, if so, and if you find that defendants agreed to pay plaintiff, John H. Lund, a real estate commission if he would sell their property in the amount of 5% of the sales price, if so, and if you find that within the 120 day listing period the plaintiff did produce a purchaser ready, able and willing to buy said 35 acre tract for the sum of Seventy Thousand ($70,000.00) Dollars and to pay cash for the defendants’ equity in the property according to the terms of the said exclusive sales contract, if so, but that defendants refused to accept the same, and absolutely refused to complete the sale, then the plaintiff is entitled to his commission and your verdict will be for the plaintiff and against the defendants”.

Defendants’ claim of error in the quoted instruction is that it submits, without evidentiary basis, the hypothesis that defendants would accept cash as the purchase price of their property. The contention has no merit and is not supported by the record. Our examination of the transcript reveals an abundance of evidence to support the challenged submission.

First, and primarily, the language of the “Exclusive Sales Contract” of and in itself, standing alone, is sufficient to support the hypothesis and to justify the jury’s finding that defendants authorized the sale of their farm for cash and that they would accept cash as its purchase price. The “price” is clearly stated, in terms of money (dollars), as $70,000.00. In the usual and ordinary usage of language the words “dollars”, “money” and “cash” are synonymous terms. See State v. Darby, Mo.Sup., 165 S.W.2d 419, where the Supreme Court stated that “dollars” could not be understood to mean anything other than money or cash. Furthermore, the testimony of plaintiff, above noted, constitutes additional substantial evidence which justifies the challenged submission and supports the jury’s finding on the issue.

Defendants’ brief contains two additional points which we treat in inverse order. First, it is contended that since plaintiff was not the procuring cause of the ultimate sale to Jacomo on December 8, 1959, he was not entitled to a commission. This point fails because the transaction referred to has no relation or materiality to the pleaded and submitted trial issues. Plaintiff’s entitlement to a commission is not based on any sale effected beyond the 120 day period provided by his listing contract. He seeks a recovery for his production of Jacomo as a purchaser within that period and during the term of his contract with defendants.

In their remaining point defendants contend that the court erred in giving plaintiff’s measure of damage instruction, which reads: “The Court instructs the jury that if you find for the plaintiff and against the defendants, then your verdict must be for the plaintiff in the sum of $3,500.00”. It is defendants’ complaint that the instruction “assumed the fact of a commission in excess of 5%” because “the gross value entailed in the ultimate transaction between defendants and Jacomo was $69,000.00”. For that matter, the evidence was conflicting. There was evidence on plaintiff’s behalf tending to show that the total price finally paid by Jacomo was in the sum of $70,000.00. However, more fundamentally, we say again that the sale effected by defendants on December 8, 1959, is immaterial to the issue of plaintiff’s entitlement to recovery and to the amount thereof. The instruction is properly based upon the sale price of $70,000.00 offered by Jacomo in October, 1959, when plaintiff produced that corporation as a purchaser under the terms of his contract with defendants.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    Clovis E. CLYMER, Plaintiff-Appellant, v. W. B. TENNISON, Defendant-Respondent.
    No. 23969.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.

      Frieze & Crandall, Carthage, for appellant
    Ewing, Ewing, Ewing, Carter & Wight, Nevada, Combs & Combs, Lamar, for respondent.
   CROSS, Judge.

On August 21, 1963, judgment was originally entered in plaintiff’s favor upon a jury verdict awarding him damages in the sum of $10,000.00 for personal injuries received when he fell from a truck load of hay while engaged in hay harvest work on the farm premises of defendant. On September 9, 1963, the trial court sustained defendant’s timely motion to set aside the verdict and judgment in favor of plaintiff and enter judgment in favor of defendant in accordance with his motion for a directed verdict, based on allegations (1) that plaintiff’s evidence was insufficient in law and (2) that all the evidence is insufficient to support the verdict, or in the alternative, for a new trial. The court duly entered judgment for defendant and further ordered “that in the event that judgment for the defendant herein granted is reversed the alternative motion of the defendant for a new trial is granted on the grounds stated therein”. Plaintiff has appealed. The primary question raised is whether plaintiff made a submissible case.

Plaintiff alleges in his petition that his fall and consequent injuries were occasioned by the falling of iron forks from the track of a haylift mechanism he was operating while engaged as defendant’s employee in the work of storing hay in a bam located on defendant’s farm premises. The petition further alleges that plaintiff’s fall and injury were caused by negligence on the part of defendant in that he (a) failed to furnish plaintiff a reasonably safe mechanical haylift with which to work and to exercise ordinary care to inspect it and keep it in reasonably safe condition, (b) failed to inspect the haylift and thereby discover its alleged defective condition, and (c) that he knew or by the exercise of ordinary care could have known that the haylift was unsafe for use in time, thereafter, to have so warned plaintiff or to have repaired it. Defendant’s answer generally denies the allegations of plaintiff’s petition and sets up special defenses of plaintiff’s contributory negligence and negligence on the part of fellow servants.

The circumstances and events giving rise to this controversy are substantially as here noted:

Defendant owned and operated a farm in Barton County on which he raised a crop of hay in 1958. On August 21st of that year, plaintiff and a group of other neighboring farmers were working as a crew assisting defendant in hauling and storing his hay crop in the barn located on his farm. It appears that this work was done for defendant on a mutual help or “trade” basis. Plaintiff and the other farmers assisting defendant were experienced in the work they were doing and were familiar with the particular operations being performed.

On the day of the accident defendant was operating the hay baler in the field. Also working in the field was his neighbor Loren Potts. Plaintiff and Melvin Dirkenson were operating trucks hauling baled hay from the field to the barn where it was lifted from the trucks to the loft by the mechanical device in question. Working in the loft to carry and place the hay as it was dumped were Floyd Shell, Joe Wheeler, Lee Manley and Glenn Stump. Defendant’s wife was operating a tractor which pulled the loaded carrier back into this hayloft by means of a heavy rope running on pulleys. The above described crew was not under the direction of any particular person.

Defendant’s barn was 64 feet long, running north and south, with an opening into the loft on the south side. Running along the ridge beam in the loft and attached to the barn rafters by steel strap hangers was a V-shaped track upon which the haylift mechanism operated. So suspended, the track extended to the north end of the loft and a few inches past a “stop” consisting of a 2x4 board nailed crosswise of two rafters. The track was positioned directly under the 2x4 and had been secured to it by several wrappings of No. 12 wire. Running upon the track, suspended by rollers, was a “carrier”, consisting of a steel frame supporting a set of variously designated “hooks”, “claws”, “eagle claws”, “tongs” or “forks”, weighing in the aggregate of approximately 60 pounds, so devised that they could be tripped by a small rope (pulled by hand), and lowered at the south end of the track where they hook down on or grab a load of hay bales from a truck standing below. The loaded hooks would then be pulled “back up to the top” where they re-engaged with the rest of the carrier on the track. The entire load was then pulled into the barn loft by the tractor.

On the south end of the track, extending several feet out the south end of the bam, were three devices. These were, in order running north and south, (1) a “stop” mechanism to engage the carrier when pulled against it by the pull rope and to trip the forks; (2) a key or safety bolt extending through the track to intercept and hold the carrier in case it did not engage with the regular stop, and (3) a cable clamp for the same purpose, which defendant had installed in addition to the key bolt for “extra safety”. Ordinarily, and when the mechanism is in complete assembly and in proper working condition, the carrier engages with the stop when pulled against and does not come in contact with the safety key bolt or the “extra safety” cable clamp.

An essential working part of the carrier mechanism is a “shoe” or “U clamp” which is the device that engages with the stop, locks the carrier to it and trips the fork. When defendant purchased the farm (in 1948 or 1949) he discovered that the carrier would not engage with the stop and trip the forks, and that the reason for such malfunction was that the shoe was missing. He obtained a replacement shoe and installed it, generally overhauled the entire haylift mechanism, and installed the above mentioned cable connector on the end of the track as an extra safety measure. Thereafter, the carrier would properly engage with the stop and never come in contact with the safety bolt and the safety cable connector and defendant experienced no further trouble with the operation of the haylift.

Such were the conditions generally existing on the morning of August 21, 1958, prior to the occurrence of two events of mischance — separate and distinct in general nature, point of time and result — the first •of which stands in no direct causal relation to plaintiff's injury, the second being an immediate, direct and producing cause.

The first incident occurred while plaintiff and his fellow workers at the barn were unloading a truck load of hay bales plaintiff had driven from the field shortly before noon. Standing on top of the load, plaintiff pulled the carrier to the south end of the track directly over the truck, engaged it with the stop and lowered the fork, all by means of the trip rope, and attached the fork to a load of 8 bales. Next, the tractor backed up and pulled the loaded carrier up and into the loft by means of the large rope, to a point in the middle of the barn. The men in the loft wanted the load pulled farther north. Someone called “further”, and plaintiff either told or motioned the tractor driver to back the tractor farther south. As directed, the driver backed the tractor several feet farther south, pulling the loaded carrier weighing in excess of 500 pounds to the extreme north end of the track, against the 2x4 stop.

The impact drove the carrier and hay load through and under the wooden stop and off the end of the track. In the words of plaintiff’s witness, Floyd Shell, “ * * * naturally a load of hay will swing when it hits and it just swung so hard that it bounced the track down and the whole business just slid right in under (the stop) and came off”. The men in the loft with the help of some of the men on the ground then undertook to reassemble the carrier and forks with the track. While some of them pulled down on the end of the track, others pushed up the fork and “after a time” got the carrier wheels back on the track. In so doing, however, they failed to notice that the shoe (U clamp) had fallen out of the carrier mechanism and was missing. (It was later found lying on the floor of the loft). Consequently, they replaced the carrier and forks on the track without that essential part, oblivious of its absence. The . attempted repair operations above described took some appreciable time — according to one witness at least one half hour.

The second incident occurred after the hay crew attempted to resume their interrupted work. Again taking his stand on top of the truck load of hay, plaintiff took hold of the trip rope and gave it a pull which “pulled the carrier down” (from the loft to the south end of the track overhead) but “it didn’t catch * * * it just rolled back in the bam”. Plaintiff pulled again, harder, but the carrier again didn’t catch. Floyd Shell, who was standing on the ground, after telling plaintiff “you ain’t giving it a hard enough jerk”, took hold of the rope and together he and plaintiff gave it a jerk which again pulled the carrier out to the south end o-f the track. As before, the carrier “banged” against some mechanism “on the end of the line”, failed to “catch there and lock”, and rolled back into the barn. Shell and plaintiff then gave a “second yank” on the trip rope. According to plaintiff’s witness Dirkenson, “the rope was being pulled pretty tight and pretty fast” and “with a great force”. This final effort pulled the carrier and forks completely off the end of the track. Plaintiff narrates the incident as follows: ■“And together the two of us give it maybe, well, I’ll say the second yank and then here it come right out in my face”. Although the carrier and forks fell in plaintiff’s direction they did not strike him. His fall from the truck is explained by the following excerpts from his testimony:

“Q. What happened to you then, Mr. Clymer?
“A. I got overbalanced, I was standing on the edge of the truck and I got overbalanced.
* # * * * *
“Q. When it came off the end of the track, what happened ?
“A. Well, I didn’t pull it off the end of the track, I had some assistance.
“Q. All right, you had some assistance, you and Mr. Shell pulled it off the end of the track.
“A. That’s right.
“Q. You and Mr. Shell pulled it off the end of the track but then what happened?
“A. I fell off, I got overbalanced and fell.
“Q. The result of the two of you pulling on the rope overbalanced you ?
“A. That’s right .
* * * * *
“Q. I mean you didn’t jump to get out of the way?
“A. Oh, no, no.”

In falling to the ground plaintiff sustained injury to his back.

Defendant was in the hay field one mile away from the barn when the carrier was pulled off the north end of the track by the tractor. He had no knowledge of that incident or of plaintiff’s fall until he came to the house a few minutes before noon. At that time he observed the south end of the track, saw that both the bolt stop and cable clamp were missing and told the men “there would have to be another one put back on there”. Loren Potts and Joe Wheeler found the cable clamp on the ground and put it back on the track. It does not appear from the evidence that the bolt was found or replaced. Upon examination of the carrier, defendant also discovered that the shoe had been left out. He procured a replacement for it from the shop and the men installed it. Thereafter the carrier would engage the stop and trip the forks properly.

Plaintiff’s brief contains the preliminary statement that the first question on this appeal is whether he made “a submissible case of negligence under the common law duties applicable to the master in master-servant relationship”. Plaintiff’s pleadings, trial theory, instructions and principal appeal assignments are based on the law of master and servant. Inasmuch as defendant makes no contention or suggestion that the status of the parties is other than that of master and servant and has himself invoked the rules of law applicable to that relationship, we deem it most expedient to assume for the purpose of this opinion, without specifically so holding, that plaintiff and defendant stood in master-servant relationship.

As a general rule, often repeated by Missouri courts, although the master is not an insurer of the safety of his servant, it is his duty to exercise reasonable or ordinary care to furnish the servant a reasonably safe place to work, to provide him with reasonably safe machinery, tools and appliances, and to maintain the same in a reasonably good state of repair. Plaintiff’s case is bottomed on this rule, in that his petition charges defendant with specific negligence in failing to exercise ordinary care to furnish a reasonably safe haylift with which to work, and in failing to exercise ordinary care to inspect it and keep it in reasonably safe condition. Plaintiff’s case was submitted to the jury, on the theory pleaded in those allegations, by two verdict directing instructions.

Instruction No. 2 predicated a finding and verdict for plaintiff on the hypothesis that defendant negligently furnished a hay-lift for plaintiff’s use that was dangerous and defective. Instruction No. 1 predicated the same finding and verdict on the hypothesis that defendant negligently failed to make an inspection of the haylift that would have revealed it to be in a defective and dangerous condition. Thus, to support a finding and verdict for plaintiff under the direction of either instruction there must necessarily have been evidence that the hay-lift was in a dangerous and defective condition, or at least was not in a reasonably safe condition.

Plaintiff correctly insists under authority of Probst v. Seyer, Mo.Sup., 353 S.W.2d 798, that in determining the submissibility of his case we must consider the evidence in the light most favorable to his contentions and give him the benefit of all favorable inferences that reasonably may be drawn from such evidence. However, plaintiff must adduce substantial evidence. A mere scintilla of evidence is insufficient. Davidson v. Hennegin, Mo.Sup., 304 S.W. 2d 836. Nor is there any presumption of liability to be drawn from the mere fact that an accident occurred and caused injury to plaintiff. Schaller v. Lusk, Mo.App., 184 S.W. 1179. We are further admonished in Probst v. Seyer, supra, as follows: “But, of course, the case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to submissibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. * * * The question of whether the evidence in a given case is substantial is one of law for the court. * * * ” (Citations omitted.) Greenwood v. Vanarsdall, Mo.App., 356 S.W.2d 109.

We shall observe the further rule that “In order that negligence may be inferred from the circumstances, the evidence must be such as to exclude guesswork, speculation, and conjecture. * * * And to remove the case from the realm of speculation the circumstances must be such that the party having the burden of proof has facts which give more than an equal basis for one of two or more inconsistent conclusions. * * * The conclusion reached must be the one which is ‘more reasonable and probable’ * * * ‘reasonably follow (s)’ * * * and ‘reasonably eliminate (s)’ the probability of any other source or cause. * * * ” (Citations omitted.) As stated in Furber v. Kansas City Bolt & Nut Co., 185 Mo. 301, 84 S.W. 890, “* * * (W)hen the court is asked to authorize a jury to find a fact from testimony so vague and uncertain that the inference to be drawn from it amounts to scarcely more than conjecture or the possibility that the fact might exist, then the court ought to look at the character of the evidence on the other side; and, if the case is such that a verdict for the plaintiff would necessarily have to be set aside, the court should not submit the question to the jury”.

Plaintiff contends that the hay-lift mechanism was shown to be defective, through defendant’s negligence, in these two particulars: (1) that the track was so improperly and insecurely wired and fastened to the stop at the north end of the barn that the carrier was caused to run off the track and fall to the floor; (2) that the safety devices on the south end of the track had become loose and would not hold the carrier and forks when pulled past the regular stop and against them. We do not deem it necessary to consider or decide whether the carrier mechanism was in a reasonably safe condition at its north end. That question would be material only in case the pulling of the loaded carrier against and through the 2x4 stop were held to be a proximate cause of plaintiff’s accident and injury. Our ruling is otherwise, as this opinion has earlier forecast. It is our view that the occurrence, whether or not caused by defendant’s negligence, was only a remote or predisposing cause, that it merely produced a condition giving opportunity for other causal agencies to act, and that it has no legal causal connection with plaintiff’s accident and injury. It appears from un-controverted evidence that the incident terminated without producing injury to plaintiff or damage to the devices on the south end of the track, and that new forces and agencies arose and actively intervened as independent, efficient and legally proximate causes of the casualty, the first of which was the unskillful reassembly of the carrier on the track without the essential shoe. We reach these conclusions under the following authority which the Supreme Court, in Duke v. Missouri Pacific Railroad Co., 303 S.W.2d 613, has promulgated as the law of this state:

“ ‘Where a second actor has or should have become aware of the existence of a potential danger created by the negligence of an original tort-fea-sor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause.’ 65 C.J.S. Negligence § 111b, notes 44, 45, p. 692.
“ ‘A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though the injury would not have occurred but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause ; and, if an independent negligent act or defective condition sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause.’ 65 C.J. S. Negligence § 111 d, p. 693”.

The remaining essential question is whether there is any substantial evidence to support a finding or from which it can reasonably be inferred that the safety bolt and U clamp on the south end of the track had become loose, and consequently ineffectual as safety devices, so as to render the haylift not reasonably safe prior to the time in question. There is no direct evidence bearing on the condition of the bolt and clamp before the accident except defendant’s testimony. At the trial he testified that he “checked the whole top” about two days before starting his hay work in 1958; that “I always had to go up, check the birds’ nests — and knock them all out of there and oil it but when I’m up there I always try to check the whole thing from one end to the other”. He stated that he found that the cable clamp and bolt on the south end were tight. In a deposition given prior to the trial defendant had admitted he didn’t go out on the end of the track and see about the stop when he was checking it and that his “check of the things then” consisted of “checking your carrier to be sure there was no bird nests in it and that the thing was oiled and properly rolling on the track or would roll along the track”.

Plaintiff attempts to establish that the clamp and bolt were loose by testimony either referable to their condition after the carrier fell off or in the nature of “opinion” evidence. His witness Floyd Shell testified that “constantly hitting of the end of the track — would loosen the bolt absolutely”. Referring to the last time he and plaintiff jerked the rope, Shell stated “The next time I pulled on it a little harder and off the whole works come, the bolt wasn’t tight on the — south end of the track and let it slide right on off. * * * ” Plaintiff’s witness Loren Potts testified that when he and Joe Wheeler put the safety clamp back on the south end, “From all indications from the marks on the rust or the age on the bolt we tightened it back a little tighter than it had been which is commonly necessary that you can do”, and that a clamp stretched around a bar would naturally stretch and loosen to some extent. As to the effect of pulling the carrier, without its engaging shoe, against the safety clamp and bolt, the testimony of witness Potts is as follows:

“Q. Had you pulled it by the rope, what would have happened?
“A. We could have by complete jerking I would say, say the pull rope up here, and got plenty of slack, let it back here and three or four hard pulls would have knocked that lock off of there regardless.
“Q. Regardless of what?
“A. Regardless of how tight it was, but if you ever stop to think you are standing down here at a twenty-five degree angle and your rope you are pulling here, did you ever stop to think that you pull down two foot a second, that it will roll that carrier at a speed of fifty foot a second.
“Q. In other words, pulling on that rope would hit—
“A. It would pull that carrier—
“Q. If the “U” clamp was not in there, it would hit the safety stop with a violent force, is that right?
“A. That’s right.
“Q. You say it would probably be knocked off of there no matter how tight it was bolted on ?
“A. That is right with a clamp, that is right. It would be mighty hard to’ get anything tight enough to hold that for after those tracks get smooth, the rust off of them and the wheels rolling easy, they can come of an awful force.
“Q. That can be exerted by the trip rope?
“A. That is right.
“Q. Would you say two men pulling on that rope could exert sufficient force to knock that safety catch off no matter how it was fixed ?
“A. I’d say one man could”.

Melvin Dirkenson, also a witness for plaintiff, stated that the jarring of the trip mechanism would cause nuts on a bolt to loosen. Dirkenson also testified:

“Q. From your knowledge of this type of hay carrier, when the carrier was pulled to the south end of the track and it didn’t latch to that stop, did that put you on knowledge that something was wrong with the carrier ? A. Yes.
“Q. Did you tell Mr. Clymer that there was something wrong with the carrier? A. No.
“Q. Did you tell Mr. Shell? A. No.
“Q. That there was something wrong with the carrier? A. No.
“Q. Did you see Mr. Shell or Mr. Clymer pulling on the release rope? A. No.
“Q. You saw the carrier hanging against the west end of the track from the barnloft, is that right? A. From the south end.
“Q. From the south end, that’s right, did you see that? A. Yes.
“Q. Did you warn anybody that there was something wrong? A. No.
“Q. Why didn’t you ? A. Before I even could say, it was already off”.

There is no substantial evidence to show directly or from which it can reasonably be inferred that the safety bolt and clamp were loose or otherwise defective prior to the time they were subjected to repeated blows of the misassembled carrier. The jury could make such finding only by “guesswork, speculation or conjecture”. Moreover, the evidence does not establish the desired inference as the more reasonable and probable conclusion to be drawn therefrom. We believe that the facts and circumstances in evidence point at least as reasonably to a conclusion that the bolt and clamp were fastened to the track in a reasonably secure manner. Three times successively they resisted the driving force of a 60 pound metal mechanism propelled against them “with great force”. . It took the fourth blow, combining the efforts of two men, to drive or shear them from the track. Since plaintiff has failed to establish the basic, underlying fact of his case, to-wit, that the safety bolt and clamp were not reasonably safe, we necessarily rule that he did not make a case sufficient for jury submission. In resolving this issue we have duly considered the cases cited and relied upon by plaintiff but do not find them persuasive.

We are urged by defendant to find that plaintiff was guilty of contributory negligence as a matter of law and that such negligence was the proximate cause of his injury. It is unnecessary to decide this question in view of our ruling above. The failure of plaintiff to establish actionable negligence on the part of defendant is sufficient to support the trial court’s action in setting aside the verdict and judgment for plaintiff and entering judgment for defendant.

Whether or not there was evidence from which the jury could have found defendant failed to make reasonable inspection of the haylift has no bearing on our decision. In the words of Judge Valliant, speaking for the Supreme Court, “The failure of the defendant to examine, inspect and test the bolt * * * is not (in itself, and nothing more) an act of negligence for which the defendant would be liable in damages to the plaintiff. The gravamen of the plaintiff’s complaint is that the defendant negligently furnished him a defective bolt. If the bolt was not defective, the defendant is not liable, even if it did not inspect it; and the circumstances might be such that, even if the bolt was defective, the defect could not have been discovered by inspection, and, in that event, failure to inspect would not, per se, be actionable negligence. The fact that the defendant did make inspection and test, if such was the fact, might or might not, according to the other facts in the case, be a defense which the defendant might or might not, as he was advised, set up against the plaintiff’s cause of action. In pleading noninspection in his. petition, the plaintiff has gone out of his way to anticipate a possible defense. * * * But except as a circumstance bearing on the question of negligence in furnishing the defective bolt, the fact of inspection or noninspection is of no importance”. Furber v. Kansas City Bolt & Nut Co., 185 Mo. 301, 84 S.W. 890.

Plaintiff complains in his final assignment that the order of the trial court wherein “the alternative motion of the defendant for a new trial is granted on the grounds stated therein”, is not in compliance with Section 510.370, V.A.M.S. and Civil Rule 75.01 V.A.M.R. because the order contains no specification of grounds for granting the new trial. We deem it unnecessary to consider the point. It is immaterial whether the order complained of meets the cited requirements, since it is conditioned upon a reversal of the judgment for defendant. That condition will not be satisfied.

The judgment is affirmed.

All concur.


author: SPERRY, Commissioner.

text:
    SOUTHWEST DISTRIBUTORS, INC., d/b/a Southwest Dehyco Company, Plaintiff-Respondent, v. ALLIED PAPER BAG CORPORATION, Defendant-Appellant.
    No. 23988.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.

      William M. Austin, North Kansas City, for defendant appellant.
    Henry H. Fox, Jr., Kansas City, for plaintiff respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for damages growing out of the breach of an implied warranty of fitness for intended use. Defendant counterclaimed. Trial to the court resulted in a judgment for plaintiff, on its petition, for $3,200.00, and for plaintiff on defendant’s counterclaim. Defendant appeals.

Defendant’s chief complaint is that plaintiff’s evidence failed to establish a submissible case under the applicable law. Our review will be as in cases of an equitable nature. Unless the judgment is clearly erroneous we will not set it aside, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Sec. 510.310, Par. 4, R.S. Mo.1959, V.A.M.S.

Plaintiff has its offices in Kansas City. It is engaged in the business of manufacturing and selling mixed feeds, fertilizers, and other products. It maintains a plant in Verdun, Nebraska, where it processes corncobs for various commercial uses. Among its corncob products is a mulch which is adapted to agricultural uses. It is beneficial to soil, as an aid to moisture retention, aeration, fertilization, and the addition of humus. It is a dry, bulky material and is shipped, as are other products of plaintiff, in fifty (50) pound paper bags. Prior to the occurrence of this controversy, plaintiff had purchased bags from defendant for shipment of its other products, and the bags furnished were satisfactory. Plaintiff’s managing officer, Mr. Harris, was well acquainted with defendant’s sales manager, Mr. Gore. Relations between the parties were excellent.

Defendant was engaged in the business of manufacturing and selling bags for use in the shipment of various commercial products. Its factory and place of business is located in Kansas City.

Sometime prior to June, 1959, defendant’s salesman called on Mr. Harris. Mr. Harris stated that he told the salesman about the new product that he intended to produce, the name of which was “Magic Mulch”. He stated that he told him, generally, of its nature and purposes; that he wanted to bag it for shipment in “nice, new, fancy bags”; that the bags were to contain fifty (50) pounds of the product, to be sold chiefly in California, where there was a good demand because of the nature of the climate and soil; that he asked defendant to produce a “dummy” sample that could be shown to California customers engaged in distributing such products; that the defendant produced such a sample bag; that witness went to Los Angeles, where he contacted one Cal Erwin and sold him two carloads of the product. He also sold an order to another dealer at Van Nuys, California. He stated that, upon his return, he interviewed defendant’s agent and told him that such products were, universally, stored in the open, on the ground, in California; that defendant’s representative then recommended that the bag should contain an inner liner of asphalt, so as to protect its contents from moisture; that plaintiff ordered five thousand (5,000) bags; that plaintiff did not specify to defendant any quality required of the bags except size — that they weigh fifty (50) pounds when filled, that they were to be stored outside of sheds, and the lettering that was to •go on them; that he wanted them as quickly as possible because he had orders ready to be filled; that, before the bags were made, plaintiff saw and inspected the plate, (the lettering) and changed one word therein; that he was present when an extra workman, at defendant’s plant, was ready to print the lettering on the bags; that the workman was having trouble with the ink; that the workman said the trouble was with the steam; that the workman, eventually, told him that he had the matter corrected; that witness left the plant after having seen some bags that “looked good”. He stated that the bags were shipped to Nebraska, where they were filled and shipped to dealers in California, in box cars; that he did not see the bags prior to their shipment; that he left the making of the bags to the judgment of defendant, who was skilled in that business.

Mr. Harris stated that, about four (4) weeks after shipment, he received telephone •complaints from dealers regarding the bags; that they were fading; that Mr. Erwin, a customer who had ordered and received two carloads, had then only paid for one car; that he went to California to see Erwin to collect, but that he could not collect; that, later, he made another trip to California and brought back samples of the bags, one of which was placed in evidence as an exhibit. It is before us. The advertising matter appears in red, green, and black. The red and green coloring is badly faded and the colors have “run”, so that the entire bag is unsightly. It gives the appearance of being stale, shopworn. Mr. Harris stated that several hundred bags sold to Erwin were in this condition; that he had previously purchased from defendant from five to ten times the number of bags herein involved, which were used for shipment of ground corncobs and which were stored in the open by purchasers, particularly oil well drillers; that these bags had been satisfactory and had been paid for. He also stated that one shipment of “Magic Mulch” went to B. & E. Enterprises, Van Nuys, California; that the customer refused to pay therefor, because of the above conditions, and that plaintiff took the shipment back; that Erwin had had returned to him much of this merchandise that he had sold; that the complaints were based on colors fading and running; that at no time did plaintiff suggest or specify the type of ink to be used in the printed matter on the bags.

Mr. Erwin’s deposition was in evidence. His testimony fully corroborated that of Mr. Harris. He stated that he was in the wholesale garden supplies business; that plaintiff’s merchandise was rendered unsaleable because of the unsightly condition of the bags, due to the faded, discolored printed matter; that the bags got in that condition within a few days after being stored in the open, even though he covered them with polyethylene sheets; that, at plaintiff’s request, he took possession of the merchandise that had been shipped to B. & E. Enterprises and found it to be not merchantable; that he had tried to sell the merchandise at $25.00 per ton, or for any reasonable sum that he could get; that he could not sell it for any reasonable price; that he was demanding refund of purchase money paid by him to plaintiff.

Since the court found the facts for plaintiff and gave him the judgment, we have stated the evidence in the most favorable light in support of plaintiff’s right to recover. We have disregarded such testimony as is contrary thereto. We accept as true the evidence favorable to plaintiff and we will draw all reasonable inferences therefrom that are favorable to plaintiff.

Plaintiff ordered these bags from defendant for the specific purpose of shipping its “Magic Mulch” to customers in California. Plaintiff told defendant, generally, what type and size of container it wanted. It wanted an attractive bag printed in multicolors, describing the contents and stating its purposes and uses. It wanted bags that could safely be stored in the open. It was not in the business of manufacturing bags but only produced merchandise for shipment therein. It had no facilities for chemically testing the paints, inks, and other materials that went into or on the bags. It left all of that to the judgment and discretion of defendant who specialized in that business and had access to such information. It had previously ordered many thousands of bags from defendant for shipment of similar merchandise under similar conditions.

The court heard the evidence, observed the demeanor of the witnesses in the courtroom, had before it one of the faded, discolored bags, and found the issues for plaintiff. The judgment is well supported by the evidence.

Defendant is bound by the well settled law on this subject, to-wit: that a manufacturer-seller of an article for a particular purpose impliedly warrants that such article will be reasonably fit for that purpose for which it is intended to be used, if the buyer communicates to the manufacturer-seller the specific purpose for which he wants the article, and if he relies, and has reason to rely, on the producer-seller’s skill, judgment and experience to produce an article that will answer the purpose. Interstate Folding Box Co., v. Hodge Chile Co., Mo.App., 334 S.W.2d 408-414; Price Bros. Lithographic Co. v. American Packing Co., Mo., 381 S.W.2d 830-835.

The doctrine does not apply to well known or commonly used articles. It rests in part upon the principle of superior knowledge and experience of the producer-seller. However, if the purchaser has, or acquires by testing and analysis, knowledge equal to that of the seller the rule does not apply because the seller has no superiority of knowledge of the facts. Price Bros. Lithographing Co. v. American Packing Co., supra, 836-837.

The evidence in this case supports the court in its finding of the issues for plaintiff against defendant. The evidence was to the effect that plaintiff relied wholly on defendant to produce bags for a specific purpose; that that purpose was communicated to defendant; that plaintiff did not specify the types of materials to be used but relied on defendant’s judgment and skill in producing an article reasonably fit for its purposes; that plaintiff had previously purchased from defendant bags for similar purposes which were suitable 'therefor; that plaintiff had reason to rely on defendant’s skill and judgment to produce for it a bag reasonably fit for its intended use; that the bags produced were not reasonably fit for that use; and that, by reason thereof, plaintiff suffered damages as adjudged by the court.

Defendant contends that the judgment is excessive because it includes freight charges on merchandise shipped to California which charges were, in fact, paid by buyers to whom plaintiff shipped the merchandise. The evidence is to the effect that plaintiff is obligated to make its customers in California whole as to their losses, the merchandise having proved to be unmarketable because of the defective containers.

This contention is denied.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.


text:
    Alvin F. JOHNSTON, Plaintiff-Respondent, v. Myra JOHNSTON, Defendant-Appellant.
    Nos. 24002, 24022.
    Kansas City Court of Appeals. Missouri.
    Nov. 25, 1964.
    Darold W. Jenkins, Marshall, for appellant.
    James & Butterfield, A. Lamkin James, Marshall, for respondent
   SPERRY, Commissioner.

Plaintiff, Alvin F. Johnston, sued defendant, Myra Johnston, for divorce. From a judgment in favor of plaintiff, granting him a decree of divorce, denying defendant’s counterclaim for separate maintenance and allowing her the sum of $800.00 to reimburse her for money paid by her on property owned by plaintiff, defendant appeals.

After the above judgment was entered defendant filed motion for alimony pending appeal, and for attorney’s fees and other necessary expenses for prosecuting an appeal from the judgment. From a judgment in favor of defendant on the motion, in the amount of $350.00, she has appealed. Both appeals will be ruled herein.

Plaintiff alleged that defendant had offered him such indignities as to render his condition in life intolerable. Defendant, generally, denied such allegations and counterclaimed for separate maintenance, based on general allegations of his miscon-^ duct. She complained that plaintiff had ^made scandalous accusations against her and told her that he did not love her. The testimony adduced, covering the relation-' - ship between the parties, came from defendant, and three of her children.

Plaintiff and defendant were married in June, 1958, at which time he was about fifty years of age and she was, approximately forty-eight. This petition was filed June 3, 1963. This was plaintiff’s third marriage. One son, seventeen years of age, lived with him in his home in Slater, Missouri. It was defendant’s second marriage. She had five children, the two youngest, a son and a daughter, seventeen years and fifteen years of age, respectively, lived in the house occupied by defendant, located a block from plaintiff’s home. The others lived in other locations. This house had belonged to defendant and her former husband. They had occupied it, together with their children prior to their divorce. At that time, they deeded it to their two oldest sons. Defendant lived there, with her two-. children, above mentioned, prior to this marriage.

The parties lived near each other and frequently were together at plaintiff’s home prior to the marriage. Defendants’ children bitterly criticized this conduct and also bitterly opposed the marriage. Defendant’s former husband, the father of her children, lived in Slater until his death a short while prior to the trial of this cause. He contributed some money toward the support of the two youngest children who, it was agreed between these parties, should continue to live in their own home after their mother’s marriage. However, within a short time, they moved into the home with plaintiff and defendant. Defendant moved a part of her furniture to the new home but also kept furniture in the other house where, plaintiff contended, she would visit with her former husband; but his testimony in that respect was not otherwise substantiated.

At the time the marriage was consummated, plaintiff owed a considerable sum of money on his house, which was being paid by monthly installments. During the marriage the parties worked at the Missouri State School, at Marshall, each earning the exact same amount monthly. Both checks were regularly deposited in the same bank and both parties checked on the account for all of their expenses. The installment payments on the house were paid out of this account so that defendant actually paid, on the principal indebtedness, the total sum of $800.00. She claimed this amount, in her testimony, and the Court allowed it as a judgment in her favor against plaintiff. Neither party complains of this action.

Defendant’s two younger children lived with the parties until they entered college, and plaintiff complained, throughout the trial, that there were too many “Rupperts” (defendant’s children) in the home; that there were three there every week end; that defendant nagged at him about his failure to transfer to her a record interest in his house; that defendant made frequent visits to her house where Mr. Ruppert lived a part of the time; that she talked with him at various other places. He professed to have been unhappy about these various matters from and after the first year of the marriage. It is clear that there was a. positive lack of harmony in the home and. that such condition had existed from the early months of the marriage.

The record shows that defendant Ow'fls' no property excepting some household goods and an interest in a 1955 automobile owned jointly by the parties. Her sole income is a monthly net take home pay from the School, of $189.00 which, the evidence shows, is scarcely enough to defray her minimum living expenses. She has had to pay no rent since the separation for the reason that she continues to occupy plaintiff’s house.

Plaintiff owns an equity in his home worth, perhaps, $4,000.00. He has a house trailer, in which he lives, but he owes on it about what it is worth. He owes the expenses of the divorce proceedings,, including cost of appeal, attorney fees for himself and defendant, the $800.0O' judgment in favor of defendant, and other money he borrowed to pay necessary expenses. His earnings are about $189.00 per month. His doctor bills run about $30.00 monthly.

Defendant says that the Court’s finding to the effect that plaintiff is the innocent and injured party and is entitled to a decree of divorce, is contrary to and against the weight of the evidence.

Plaintiff pleaded the following:

1. That she, defendant, by her every action does not have the proper love and respect for him consistent with the marital relation;

2. That she pays more attention to her children than to him;

3. That she refuses to make a home for him and is neglectful regarding same;

4. That she frequently nags him;

5. That she makes false accusations against him.

Throughout plaintiff’s testimony, consisting of 163 pages, he stated over and over again, that he had been unhappy in his home life since the early days of the marriage. It appears, from the whole record, that there was friction between plaintiff’s son and defendant and her two children from and after her children moved into the home, and .that plaintiff felt that he was not treated as a husband should be treated by a loving wife. Defendant’s children disliked plaintiff and disapproved of the marriage. After plaintiff’s son left home and, later, after defendant’s two youngest children left for college, plaintiff complained that three of defendant’s children were in the home every week end. He stated that defendant “nagged” him for not deeding to her an interest in his home, even though they had agreed before the marriage that he would not do so. She stated in evidence that she repeatedly asked him to do so.. He pleaded that defendant made false accusations against him and her counsel questioned plaintiff at length regarding his alleged association with other women. He denied such associations except in their homes, with their husbands, where labor union matters were discussed. He stated that she paid more attention to her children than she did to him. It is apparent that there can never be'a reconciliation between the parties.

In Harwell v. Harwell, Mo.App., 355 S.W.2d 137, 141, 142, this Court said that indignities, to warrant the granting of a divorce, ordinarily must amount to a continuous course of conduct such as to connote hate and a plain manifestation of alienation and estrangement. According to the testimony of plaintiff, defendant’s continuous conduct toward him over a period of years was calculated to render him unhappy. The learned Court saw and heard the witnesses testify. The Court’s findings in this case are persuasive. We yield to the trial Court’s judgment where, as here, the testimony is conflicting and the facts are close. Dietrich v. Dietrich, 294 S.W.2d 569, 571. We hold that, from the evidence in this case, the trial Court could have properly found that plaintiff was subjected to such indignities as to render his condition in life intolerable; that he is the innocent and injured party; that he is entitled to a decree of divorce; and that defendant’s counterclaim should be denied. Whitwell v. Whitwell, 318 Mo. 476, 300 S.W. 455, 456.

Defendant contends that the trial Court’s allowance for appeal expenses is inadequate. She states that there has been paid $20.00 for filing fees, that the cost of the transcript is $270.00. When these items are paid there would be left $60.00 for printing the brief and for attorney fees for defendant. We hold that amount to be inadequate. We are in a better position to pass on this question than was the learned trial Court who could not have known, at the time the order was made, what the cost of the transcript would be. It is, therefore, ordered and adjudged that plaintiff pay to counsel for defendant, for use of defendant, the sum of $500.00 for the above purposes.

The judgment granting plaintiff a divorce from defendant and denying her counterclaim is affirmed. It is further ordered that plaintiff pay the sum of $500.00 to defendant’s attorney of record.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.


author: RUDDY, Presiding Judge.

text:
    Kenneth O. BROWN, Building Commissioner of the City of St. Louis, and the City of St. Louis, a Municipal Corporation, (Plaintiffs) Appellants, v. Rudolph BEUC, Chairman, M. A. Beffa, Clarence Ax, Robert Kinealy and L. A. Maginn, in their capacity as Members of the Board of Adjustment of the City of St. Louis, et al., (Defendants) Respondents.
    No. 31545.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.

      Thomas JVNeenan, City Counselor, John J. Fitzgibbon, Associate City [Gounselor, Conway B. Briscoe, Jr., Assistant City Counselor, St. Louis, for appellants.
    Foster, Vogel & Stroh, St. Louis, for respondents.
   RUDDY, Presiding Judge.

This is an appeal by relators, Kenneth O. Brown, acting Building Commissioner of the City of St. Louis, Missouri; and the City of St. Louis, Missouri, a municipal corporation, from a judgment of the Circuit Court in a certiorari proceeding affirming an order of respondents, Rudolph Beuc, Chairman, M. A. Beffa, Clarence Ax, Robert Kinealy and L. A. Maginn, who constitute the Board of Adjustment of the City of St. Louis, Missouri, (hereinafter referred to as the Board) an administrative body duly appointed, authorized and acting under and by virtue of the provisions of the “Zoning Code” which is embodied in the Revised Code of the City of St. Louis (1960).

The property involved in the order of the Board is known and numbered as 3820 Westminster Place and is owned by the Moolah Temple Association, (hereinafter referred to as Moolah) a not for profit corporation. The Moolah Temple in the City of St. Louis is owned by Moolah and is located on McPherson Avenue, a street immediately south of Westminster Place. 3820 Westminster Place is located in City Block 3925 on the south side of the street between Spring Avenue to the east and Vandeventer Avenue to the west. From Spring Avenue west to Vandeventer Avenue the uses and foot frontage on the south side of Westminster Place are as follows: Rear of Coronado Hotel 112 feet, Daniel Boone Parking Lot 65 feet, Lindell Tower Parking Lot 60 feet, Moolah Parking Lot and New Moolah Building (3820 Westminster Place) 762 feet, residence 37 feet,.offices 48 feet. The depth of the lot is 134 feet 6 inches from Westminster Place southwardly to an alley.

Prior to the filing of’ the application.th^t ' preceded this certiorari proceeding special < use permits (Nos. 524S3 and 59186) were issued by the Board of Public Service of the City of St. Louis authorizing Moolah as owner of the lot under consideration (3820 Westminster Place) to use the lot (in a residential zone) for off-street parking, subject to Moolah observing certain conditions. Under condition No. 3 Moolah was required to observe a 25 foot front yard line (Sec. 904.060 Zoning Code) which had the effect of prohibiting parking beyond or north of the 25 foot front yard line.

The lot in question is located in the “E” Multiple Family Dwelling District and said district is regulated by the provisions of Chapter 908 of the “Zoning Code” of the City of St. Louis. Section 908.070 sets forth the front yard area for the “E” Multiple Family Dwelling District as follows:

“908.070 Front yard area — The front yard regulations are the same as those in the ‘A’ Single-Family Dwelling District, (see chapter 904.)”

The front yard regulations for the “A” Single Family Dwelling District appear in § 904.060 of the Zoning Code and are as follows:

“a. When twenty-five percent (25%) of the frontage within any dwelling district on one side of the street between two intersecting streets is improved with dwellings and a majority of such improved frontage has observed a front yard line with a variation in depth of not more than six (6) feet, no building hereafter constructed shall project beyond the average front yard line so established, but this shall not be construed to require a front yard of more than fifty (50) feet in depth.
“b. In all other cases there shall be a front yard of not less than twenty-five (25) feet.”

It is conceded that Par. “b” of § 904.060 of the Zoning Code is applicable to the lot in question and that said lot requires a front yard of not less than twenty-five feet. As will be pointed out later the Board found that a front yard of 25 feet is required under this provision of the Zoning Code.

Section 903.080 establishes the off-street parking and loading requirements. The provision thereof pertinent to the dwelling district in which the lot in question is located is as follows:

“(3) Off-street parking or off-street loading, when provided in a dwelling district shall not extend beyond the building line or in the front yard area as set forth in the front yard area regulations of the district in which it is located. When provided in other districts it may occupy any open land, including front yards, but no parking structure shall extend beyond the building line in any district. The required parking space shall be paved with bituminous, concrete or equivalent surfacing, clearly marked, and contain adequate entrances and exits, and shall be kept free from dust and be used only for parking. When lighted for night time use, no lights shall be permitted to cast their light upon dwellings nearby. All such parking lots in dwelling districts shall be screened from other uses by a masonry wall or shrub barrier not less than four (4) feet in height and of sufficient density to provide visual concealment.”

On or about July 17, 1962, Moolah made application to the Board of Public Service of the City of St. Louis asking it to amend Permits Nos. 52453 and 59186 by eliminating condition No. 3 which required planting strips along the Westminster Place frontage and the observance of the 25 foot front yard line. On September 19, 1962, the Board of Public Service refused the request of Moolah and gave the following as its reason: “This request for amendment was refused because since this is a parking lot in a residential zone, the Building Commissioner believes that the building line pursuant to the Zoning Ordinance requirements must be maintained, and to permit the Moolah Temple Association to extend their parking lot to the property line is not within the jurisdiction of the Building Commissioner to grant.”

Thereafter on October 17, 1962, Moolah appealed the decision of the Board of Public Service and gave as its reason for wanting to extend its present paved parking area 25 feet north to the north property line of the lot in question that “the limited parking area creates a traffic hazard to the entire neighborhood which would be partially alleviated by the granting of this permit.”

A public hearing was held by the Board on the appeal and evidence was taken and heard by it which may be reasonably summarized as follows: At the beginning of the hearing the representative of Moolah stated “we are asking permission from this Board to continue the parking lot out to the sidewalk for a number of reasons, some of which do not comply with the provisions of the ordinance. The permitted off-street parking space on the lot provided parking space for 249 cars and it was pointed out that if the additional area was given Moolah it would have additional parking space for 87 cars. It was shown that on the street south of the lot in question there were a large number of apartments, business establishments and a hotel. In addition there were the main Moolah Temple, the Medical Society Building and the Odd-Fellows Hall. On the north side of Westminster Place between Spring and Vandeventer Avenues most of the buildings were rooming houses. The evidence at the hearing further showed that the organizations that occupy the buildings on the street south of the lot in question have meetings that attract rather large attendances which create parking problems, which Moolah’s representative described as “almost uncontrollable.” It is to partially alleviate this parking problem that the request to amend the permit was made. It was stated that the Moolah Temple Association has 10,000 members. While there are some commercial parking lots on the street to the south of the lot in question and on other streets in the immediate area, they are not adequate or sufficient to meet the demand for parking space. However, it was admitted that even if the amendment to the permit was granted that it would not solve the parking problem, particularly on the evenings when special meetings are held which brings out an overflow crowd. Moolah’s representative thought that to extend the present parking facilities to the property line would not only provide additional parking space but would also contribute to the general appearance of the neighborhood. It was also stated by Moolah’s representative that the membership of the Medical Society has the same difficult parking problem and that the occupants of some of the apartments nearby were also faced with the problem of parking their cars because, as it was said, “there just isn’t any public parking facilities in that area.” Moolah’s representative also said that “everybody has the same parking problem.” It was pointed out by Moolah’s representative that the principal parking problem occurs when Moolah has its eight stated meetings during the year.

At these meetings the entire membership is invited and the attendance is between 4000 and 6000. However, it was said that so far as the other nights are concerned the various organizations within Moolah have ample parking facilities. Moolah proposed paving the lot to the property line and establishing no planting strip between the property line and the sidewalk. It was shown that the Lindell Towers and the Daniel Boone Apartments located on the street south of Westminster Place have parking lots on Westminster Place to the east of Moolah’s property and they have paved out to the sidewalk. In this connection it was pointed out by the representative of the City of St. Louis and the Board of Public Service that a notice had been served upon the Lind ell Towers and the Daniel Boone Apartments warning them that they are in violation of the Zoning Ordinance.

Pearl Lisle, who lives at 3850 Westminster Place, which is immediately west of the lot in question, said that she has been living there 33 years. When asked by a Board member, “You are stating your objections to these conditions,” she answered, “I object to parking cars right next to our front line.” She thought parking the cars out to the sidewalk would create a dangerous situation. However, upon further questioning by Board members she finally told the Board that she would not object to parking cars up to the sidewalk if shrubbery was provided.

Thereafter, the Board found from the evidence and the exhibits before it the following:

“1. This is an appeal from the Board of Public Service which allowed a parking lot to be constructed pursuant to its authority under Chapter 915 of the Zoning Code.
“2. The Board of Public Service granted said permit subject to certain restrictions, one of which was the planting of shrubs along Westminster and the east and west lot lines.
“3. The applicant seeks this Board to overrule the decision of the Board of Public Service regarding the shrubs and to allow the parking lot to come out to the property line.
“4. The testimony revealed that the additional 25 feet of parking space was needed to accommodate more cars because of lack of parking facilities in the neighborhood.
“CONCLUSION OF LAW
“1. Premises are located in the ‘E’ District.
“2. The front yard regulations in the ‘E’ District are the same as that in the ‘A’ District.
“3. The ‘A’ District regulations require a front yard of 25 feet.
“4. Section 903.080(3) of the Zoning Code prohibits parking beyond the front yard area.
“5. Under the powers granted to the Board in Section 916.050(4) of the Zoning Code, the Board finds a practical difficulty and orders the permit to issue subject to the following conditions; that is, that a 4 foot high retaining wall be erected and for this purpose 5 feet of the frontage on Westminster be reserved for this purpose and further a retaining wall 4 feet in height be erected at the east and west lot lines/

Following the decision of the Board the instant certiorari proceeding was instituted in the Circuit Court. At the hearing in this proceeding no additional testimony was adduced and the matter was heard and submitted to the trial court solely on the evidence presented before the Board. The trial court affirmed the Board in all particulars.

Relators contend that the trial court erred in affirming the decision of the Board granting a variance of the application of Sections 903.080(3), 904.060(b) and 908.070 of the Zoning Code of the City of St. Louis on the ground that a practical difficulty existed within the meaning of § 916.050(4) of the Zoning Code of the City of St. Louis for the reason that there was no practical difficulty proven. In their second contention relators urge that the trial court erred in affirming the decision of the Board granting a variance of the application under the sections enumerated above because the decision was beyond the jurisdiction of the Board and is an attempt to amend the General Rules and Regulations of the Zoning Code which is a legislative function.

Respondents in their brief state these two contentions more concisely, as follows: (1) on the record no “practical difficulty” within the meaning of the Zoning Code was proven or could have been proven; and, (2) the Board, in any event, had no jurisdiction to make the decision complained of.

Section 916.050 of the Zoning Code, subdivision 4 thereof, states that the Board shall have the following powers:

“4. In passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the zoning code, to vary or modify the application of any of the regulations or provisions of such code relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the code shall be observed, public safety and welfare secured and substantial justice done.”

This section of the Zoning Code was enacted pursuant to the provisions of the Enabling Act, viz., Section 89.090 RSMo 1959, 7 V.A.M.S., and the ordinance contains virtually the same language used in the statutory act.

At the threshold of our consideration of these contentions raised by relators it is well to review the rules governing the scope and extent of our authority in reviewing the action of the Board and of the Circuit Court in affirming the action of the Board. We will also review some of the rules that pertain to the authority of the Board to vary or modify the application of any of the regulations or provisions of the Zoning Code and the rules determining the sufficiency of the evidence to support the Board’s finding and conclusion of law that a practical difficulty existed.

In the case of State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W. 2d 1030, at 1. c. 1033, the Supreme Court in discussing the jurisdiction of the Circuit Court in reviewing a decision of a Board of Zoning Appeals said:

“The review of a decision of a board of zoning appeals by the circuit court being purely statutory, the court’s jurisdiction in such proceedings does not extend beyond that conferred by the statute. Looking to the statute it is apparent that the court is not vested with the power to supervise the discretion lodged with the board of zoning appeals; it is not authorized to entertain a hearing de novo and then make such order as in its opinion the board should have made. The court’s authority is plainly limited to correcting illegality. If the court finds the order under review illegal, in whole or in part, it may reverse or affirm, wholly or partly, or may modify, the order, as may be necessary in order to correct the illegality.”

Expanding on this statement in the Nigro case we said in Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, 1. c. 495, 496:

“This narrow scope of review, however, must be read in the light of the minimum standard for review provided by Constitution of 1945, art. V, § 22, requiring that the review of all final decisions of any administrative body in which a hearing is required shall include the determination whether the same are ‘supported by competent and substantial evidence upon the whole record.’ Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647. The circuit court may not substitute its own judgment on the evidence for that of the board, Wood v. Wagner Elec. Corp., supra; In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, loc. cit. 373, but the circuit court is authorized to decide whether the board of adjustment reasonably could have made its findings and reached its result upon consideration of all of the evidence before it, and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Mann v. Mann, Mo.App., 239 S.W.2d 543.”

Also see Bartholomew v. Board of Zoning Adjustment of Kansas City, Mo.App., 307 S.W.2d 730.

The same powers and limitations imposed upon the Circuit Court in its review of the decision of the Board are applicable to this court in our review of the decision of the Circuit Court in the certiorari proceeding. In re Botz, supra; Carlyle-Lowell, Inc., v. Ennis, Mo.App., 330 S.W.2d 164. Therefore, the controlling question on this review is whether the Board has acted arbitrarily or illegally or so unreasonably as to have abused its discretion. Himmel v. Leimkuehler, Mo.App., 329 S.W.2d 264, 268.

The power and authority of the Board to grant a variance or modification in the application of the zoning regulations is to be exercised sparingly and only in rare instances and under exceptional circumstances. Marino v. City of Baltimore, 215 Md. 206, 137 A.2d 198; First National Bank and Trust Company of Port Chester v. Zoning Board of Appeals of Greenwich, 126 Conn. 228, 10 A.2d 691, 1. c. 695; Potts v. Board of Adjustment of Borough of Princeton, 133 N.J.L. 230, 43 A.2d 850, 1. c. 855; 101 C.J.S. Zoning § 286, p. 1057; McQuillin—Municipal Corporations, 3rd Ed. Vol. 8, § 25.162, p. 377; Metzenbaum Law of Zoning 2d Ed. Vol. I, Ch. IX-f-1, p. 774. Such observance by the Board is absolutely essential if the integrity of the Zoning Code is to be maintained. To permit any other course would render naught and useless the legislative purpose in enacting the zoning code, viz., to promote the public safety, health, convenience, comfort, prosperity and general welfare (Zoning Code § 900.040).

The Board by its order cannot amend or repeal any zoning ordinance or amend or repeal any rule or regulation of the Zoning Code. The power to amend or repeal any provision of the Zoning Code belongs to the legislative body of the City of St. Louis and not to the Board. The Board is without a vestige of legislative power. State ex rel. Nigro v. Kansas City, supra; Shiverdecker v. Zoning Board of Adjustment of Fulton, Mo.App., 351 S.W.2d 43; Himmel v. Leimkuehler, Mo.App., 329 S.W.2d 264, 1. c. 271; Lee et al. v. Board of Adjustment of City of Rocky Mount, 226 N.C. 107, 37 S.E.2d 128; McQuillin—Municipal Corporations, 3rd Ed., Vol. 8, § 25.160, p. 371; Yokley Zoning Law and Practice, 2d Ed. Vol. 1, § 140, p. 344. In State ex rel. Nigro v. Kansas City, supra (27 S.W.2d 1. c. 1032), the Supreme Court when referring to the powers of the Board said:

“The ordinance does not purport to authorize the board of zoning appeals to modify, amend, or repeal any of its provisions; but it does permit and direct the board to modify or partially suspend a rule in its application to a particular case where strict enforcement would ‘by reason of exceptional circumstances or surroundings constitute a practical difficulty or unnecessary hardship.’ * * * In other words, if in a specific case the enforcement of a regulation according to its strict letter would cause unnecessary hardship and the board can by varying or modifying the application of the regulation obviate the hardship and at the same time fully effectuate the spirit and purpose of the ordinance, they are authorized to so vary or modify the application. But the board can in no case relieve from a substantial compliance with the ordinance; their administrative discretion is limited to the narrow compass of the statute; they cannot merely pick and choose as to the individuals of whom they will or will not require a strict compliance with the ordinance.”

Bartholomew v. Board of Zoning Adjustment of Kansas City, Mo.App., 307 S.W.2d 730; Wilson v. Douglas, Mo.App., 297 S.W.2d 588; Berard v. Board of Adjustment of City of St. Louis, Mo.App., 138 S.W.2d 731.

The dominant purpose and design of any zoning code is to promote the health, safety, welfare and property of the community. We said in In re Botz, supra, (159 S.W.2d 1. c. 373):

“The ultimate object and purpose of a comprehensive zoning plan is to confine within established zones or districts all uses of a similar classification, whether residential, commercial, or industrial; and the underlying spirit of such a plan must therefore be to diminish, and not to extend, nonconforming uses of property affected by the zoning ordinance.”

As shown before, Moolah in its appeal to the Board sought to eliminate the enforcement of the ordinance that requires a front yard of not less than 25 feet. This front yard requirement of not less than 25 feet in the zone in which Moolah’s property is located is a part of a broadly planned and embracing zoning code, the whole of which was plainly meant for and was closely promotive of the general welfare, the public health and the community safety. This provision in the ordinance is a part of a comprehensive zoning plan and is a provision intended for the public safety and good.

In the instant case the record shows that Moolah had been given a special permit authorizing it to use the said lot for off-street parking subject to a condition (3) which required it, among other things, to observe a 25 foot front yard line. There is no doubt that the granting of this special permit makes this lot less adaptable now for multiple family dwelling purposes. However, the granting of such an exception does not control the granting of a subsequent variance. Marino v. City of Baltimore, supra; Potts v. Board of Adjustment of Borough of Princeton, supra; McQuillin—Municipal Corporations Vol. 8, § 25.164, p. 383.

As heretofore pointed out, the Board found that a practical difficulty existed because of lack of parking facilities in the neighborhood. It will be noted that the Board used the term “practical difficulties” and not the term “practical difficulties or unnecessary hardships” as contained in § 916.050, subd. 4 of the Zoning Code. Courts have not regarded the words “practical difficulties” as having any significance in themselves but the phrase “practical difficulties or unnecessary hardships” found in many zoning regulations is usually construed as a whole, 168 A.L.R. p. 26 citing Devaney v. Board of Zoning Appeals, 132 Conn. 537, 45 A.2d 828. Moolah, who sought the variance, had the burden of showing the practical difficulty or unnecessary hardship and had the burden of showing that the property cannot be used for a conforming purpose. There is nothing in the record before the Board and before us to indicate that the special permit which authorizes Moolah to use the lot for off-street parking purposes is to run for a specified period of time. Also, there is nothing in the record to show nor was a finding made by the Board that the lot in question is unsuitable for multiple family dwelling purposes.

The sole finding made by the Board in support of its conclusion that a practical difficulty existed was the lack of parking facilities in the neighborhood and for this reason the additional 25 feet of parking space was needed to accommodate more- cars. The phrase “practical difficulties or undue hardships” as contained in the Zoning Code does not refer to conditions personal to the owner of the land in question but rather refers to the conditions especially affecting the lot in question. Further, the practical difficulty or undue hardship relied on as a ground for a variance must be unusual or peculiar to the property involved and must be different from that suffered throughout the zone or neighborhood. A statement that summarizes the rule found in numerous cases is contained in McQuillin — Municipal Corporations, Vol. 8, 3rd Ed. at § 25.167 beginning at page 390, wherein it is said:

“It is fundamental that the difficulties or hardships must be unique to justify a variance; they must be peculiar to the application of zoning restrictions to particular property and not general in character, since difficulties or hardships shared by all go to the reasonableness of the zoning restrictions broadly and render them invalid or call for their modification by amendatory ordinance. In other words, the plight of an applicant for variance ■must be due to unique circumstances and conditions. The difficulty or hardship of an applicant for a variance, to entitle him thereto, must be special ■or unique in contrast with that of other property owners in the same district. If the hardship is common to the whole neighborhood, the remedy is to seek a change in the ordinance rather than a variance. Moreover, the hardship must not only be peculiar to the applicant’s property but it must relate to -the particular property of the applicant for which he seeks a variance.”

When we say inherent in the land and that the hardship must be due to conditions not personal to the owner, but rather to ■conditions affecting the land we mean such hardships as result from the peculiar topography or condition of the land which ■makes the land unsuitable for the use permitted in the zone in which it lies. Also, as said above, if the hardship is common to the whole neighborhood, the remedy lies in a change in the ordinance itself.

As we have pointed out heretofore, the Board is not a legislative body and cannot correct general hardships and can only .grant variances when there are conditions in connection with the lot that will cause practical difficulties or undue hardships not common to others. For cases supporting McQuillin’s statement, see In re Botz, supra, 159 S.W.2d 1. c. 370; Carlyle-Lowell, Inc. v. Ennis, supra; Marino v. City of Baltimore, supra; Searles v. Darling (Delaware), 7 Terry 263, 83 A.2d 96; Brackett v. Board of Appeal of Building Department of City of Boston, 311 Mass. 52, 39 N.E.2d 956.

We do not have here an issue involving the exercise of discretion by the Board. In fact, relators in their brief agree that there is a lack of parking facilities in the neighborhood but contend that this is not a sufficient basis on which to vary the general rules and regulations of the Zoning Ordinance. We agree with this contention. The record before the Board and before us does not show that the lot in question or any part thereof is subject to any unique or peculiar circumstance or condition.

In the instant case the practical difficulty or undue hardship found by the Board is general and characteristic of the entire neighborhood surrounding the lot in question and, as we have pointed out, under these circumstances the remedy lies in a revision of the Zoning Code through the city legislature and not in the granting of a variance to a single property owner. We can sympathize with Moolah’s plight but its plight is common to others in the area of the lot and in other areas of the city and we might add is common to many areas in all large cities. If we were to approve the Board’s action in the instant case, there would be no valid reason why it would not also be empowered upon successive applications to grant similar variances and in time would nullify the provisions of the Zoning Code.

Respondents have cited and seem to rely upon the case of Summers v. Board of Zoning Adjustment, Mo.App., 299 S.W.2d 883. In that case a church was granted a permit to use for parking lot purposes certain lots it owned. The permit as granted required that the lots “be hard surfaced, surrounded by a wall not less than 3)4 feet in height and that it set hack from Main Street 30 feet and from Baltimore 20 feet, and 6 feet from the north and south property lines.” (1. c. 886) (Emphasis supplied.) The permit granted in the Summers case was the same as the permits granted Moolah in this case, which were obtained prior to the initiation of the instant proceeding. As heretofore set out, the permits received by Moolah required it to comply with the 25 foot front yard line which was similar to the requirement imposed upon the permittee in the Summers case. The permit in the Summers case was issued pursuant to provisions of the Kansas City Zoning Code permitting off-street parking and loading regulations which were similar in effect to § 903.080(3) of the Zoning Code of the City of St. Louis. As we have pointed out, the only issue involved in the instant proceeding is whether or not the Board had the power and authority to extend the off-street parking permission beyond the front yard line in violation of § 903.080(3) of the Zoning Code. This question was not before the court in the Summers case.

There is another compelling reason for holding the action of the Board illegal and it is that the granting of the variance by the Board constitutes a repeal of § 903.080(3) of the Zoning Code. As shown, this provision of the Zoning Code prohibits off-street parking beyond the building line or front yard area as set forth in the district regulations where the property is located; in this case, the “A” district. (Sec. 904.060 subd. b. establishes a 25 foot front yard line.) The effect of the Board’s order granting the variance is to completely ignore this provision of that section (903.080(3)) of the Zoning Code. Such action, in effect, constitutes repealing the provision by the Board, which it may not do. As we have pointed out heretofore, the Board by its order cannot amend or repeal any zoning ordinance or amend or repeal any rule or regulation of the Zoning Code. The sole power to do this belongs to the legislative body of the City of St. Louis and not to the Board.

For the reasons indicated heretofore, we find that the Board exceeded its authority in granting the variance and in making its finding and order. Therefore, the judgment of the Circuit Court should be reversed and the cause should be remanded for proceedings in conformity with the views herein expressed. It is so ordered.

WOLFE and ANDERSON, JJ., concur..