author: WILSON, Justice.

text:
    KAISER GYPSUM COMPANY, Inc., Appellant, v. H. B. JORDAN, Appellee.
    No. 4436.
    Court of Civil Appeals of Texas. Waco.
    Jan. 27, 1966.
    Rehearing Denied Feb. 17, 1966.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Richard L. McGraw, Austin C. Wilson, Jay W. Elston, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, R. H. Singleton, Houston, for appellee.
   WILSON, Justice.

Plaintiff’s petitiori, alleged he furnished information to defendant concerning gypsum deposits; that defendant■ expressly agreed to pay him a specified royalty in return for the information and his skill and labor in developing further data, for which judgment was prayed; that pursuant to this agreement plaintiff and defendant entered upon a joint venture to investigate the deposits and obtain a lease of lands on which they were located. Alternatively, it was averred that plaintiff furnished information and services, which defendant accepted, used and acted upon, under a relationship of trust and confidence; and that he was entitled to have a trust impressed on the lease which defendant obtained, or that he was entitled to the reasonable value of the royalty interest or the reasonable value of his services.

Defendant pleaded the action as to the alleged oral contract was barred by the provisions of the Real Estate Licensing Act, Art. 6573a, Vernon’s Ann.Civ.St., because the agreement alleged was not in writing, as those statutes require.

Upon a jury verdict a money judgment was rendered for plaintiff. We reverse.

The principal attack on the judgment is that as a matter of law, and under jury findings, plaintiff was seeking compensation for the acts of a real estate dealer under Art. 6573a, whereas he had neither a requisite license as such, nor a signed writing evidencing his right to compensation, required by the Act. The jury findings referred to were to the effect (15) that information furnished and work done by plaintiff were solely for the purpose of negotiating a lease to defendant “with the intention or expectation of receiving compensation”; and (16) that plaintiff engaged on a full or part-time basis in the occupation of “offering or attempting to negotiate leases for others with the intention or expectation of receiving compensation.”

Plaintiff’s response is that the Real Estate Licensing Act is not applicable because he was acting with defendant in a joint venture relationship.

The jury findings were to the effect that (1) plaintiff and defendant “agreed with respect to investigation of the gypsum deposits”; (2) that they agreed efforts would be made by plaintiff to obtain a lease, and (3) agreed that if a lease was obtained both would benefit therefrom; (4) that plaintiff worked on behalf of both plaintiff and defendant to obtain the lease which was acquired; (5) that a relationship of “trust and confidence” (defined) existed between plaintiff and defendant with respect to obtaining the information and the lease; (6) that pursuant to that relationship plaintiff worked in behalf of both plaintiff and defendant in obtaining the lease; (7) defendant did not agree plaintiff would have an overriding 2]/^‡ royalty; (8) that plaintiff furnished information and work in connection with acquisition of a lease by defendant (9) which was used by defendant in obtaining the lease, (10) knowing plaintiff expected to be compensated therefor. (11) The reasonable value of “information and work” furnished by plaintiff was $35,000. (12) Defendant “fraudulently induced” plaintiff to furnish the information and work, but (13) did not act wilfully or maliciously, and (14) plaintiff was not entitled to exemplary damages. Issues 15 and 16 and the jury’s response have been summarized above.

Sec. 19 of Art. 6573a, makes a license prerequisite, and Sec. 28 requires a signed written agreement in order that plaintiff may maintain an action to recover compensation or commission for performing services as a real estate broker. The statutory definition of “Real Estate Broker” includes one who “ [n] egotiates, or offers or attempts or agrees to negotiate” the leasing of real estate with the intention or expectation, or upon the promise of receiving compensation. Id., Sec. 4(1) (c). The statute prohibits engaging in these acts without a license. By Sec. 6(1), one who does not engage in the occupation “on a full or part-dime basis” is exempt.

By its answers to issues 15 and 16 the jury found facts which bring plaintiff’s acts within the prohibition of Art. 6573a. These findings are that plaintiff furnished his information and work for the purpose of negotiating a lease to defendant with the intention or expectation of receiving compensation, and that he engaged in the occupation of attempting to negotiate leases for others on a full or part-time basis with the same intention and expectation. These are the factors and elements which constitute one a real estate broker under Secs. 3-6 of the Act, and make its requirements and prohibitions applicable to him.

Appellee seeks to avoid the effect of the jury findings by urging that because issue 15 inquired whether plaintiff’s purpose was to negotiate a lease “to” appellant, rather than “for” it, the finding is insufficient to bring him within the statute. The argument is that Sec. 4(1) defines a “real estate broker” as one who performs services “for” another, and that the issue and finding merely resolved a controversy as to who would be named lessee in the lease, but did not settle facts constituting appellee a “real estate broker.”

We do not agree with this contention. Except for the variation in the preposition the issue submitted the statutory elements substantially in the words of the Act. See Modica v. Howard, Tex.Civ.App., 161 S.W.2d 1093. While it is true the issue also identified the contemplated lessee, its function was to identify in the inquiry the lease which was negotiated. The finding in answer to issue 15 when coupled with that in response to issue 16, which determined that plaintiff engaged in offering or attempting to negotiate leases “for others” with the intention or expectation of receiving compensation, clearly brought him under the statutory prohibition.

It is necessary, then, to determine whether the record establishes plaintiff and defendant were engaged as joint ven-turers so as to make the statute inapplicable, as plaintiff contends. Otherwise it bars the action. It is held the quoted prohibitions of Art. 6573a do not apply to such transactions. Gill v. Smith, Tex.Civ.App., 233 S.W.2d 223, writ ref., n. r. e.; Coats v. Windham, Tex.Civ.App., 254 S.W.2d 530, writ ref. n. r. e. See Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, Syl. 6, 59 A.L.R. 2d 1011, applying the Texas Securities Act, Art. 600a.

Plaintiff urges that the jury findings that the parties “agreed with respect to investigation” of the gypsum deposits, agreed that “efforts would be made” by the parties to obtain a lease, agreed that both “would benefit” if a lease was obtained, that plaintiff “worked in behalf of” both parties to obtain a lease, and that he furnished information and worked “in behalf of” both, established that plaintiff and defendant were joint venturers. ^

Among the requisites of a joint venture are (a) the right to participate in the profits, (b) the obligation to share losses, (c) joint control of the enterprise. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011; Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 722; Mum-mert v. Stekoll Drilling Company, Tex. Civ.App., 352 S.W.2d 526, 529, writ ref. n. r. e. The jury expressly found against plaintiff’s allegation of an agreement that he was to receive a specified royalty. The findings do not establish the enumerated requisites.

Where the interest of one of the parties in the profits consists only in the fact that they are a fund which is a source of “compensation for the services of the person engaged in the business, and not as property to which he has a right, by reason of his being a part owner of the principal,” the essential right to share in profits does not exist. Friedlander v. Hillcoat, Tex.Sup., 14 S.W. 786, 788; Emberson v. McKenna, Tex.Civ.App., 16 S.W. 419; 33 Tex.Jur.2d, Joint Adventures, Sec. 2, p. 287. In Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, cited by appellee, there was an express agreement to divide the profits and share all benefits equally. Of course, the receipt of compensation for services and information in obtaining the lease would be a “benefit” to plaintiff as found in answer to Issue Number 3. This fact does not tend to constitute the parties joint venturers.

We are unable to determine whether there was actually an attempt to submit the joint venture theory by the issues relied on by appellee. By the pleading these are tied to an allegation that pursuant to an agreement that plaintiff would receive an overriding royalty, the parties entered upon a joint venture. These issues and findings cannot be correlated with a quantum meruit or a fiduciary relationship basis of recovery to support a joint venture theory. In our opinion the case was tried on an incorrect theory, and under the issues answered favorably to appellee, has not been fully developed. Other points are overruled. The judgment is reversed and the case is remanded.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    FOREMOST CONSTRUCTION COMPANY, a Corporation, Plaintiff-Appellant, v. Mary Jane KILLAM and Liberty Bank of Honolulu, Defendant Third-Party Plaintiffs-Respondents, v. KANSAS CITY TITLE INSURANCE COMPANY, Third-Party Defendant Appellant.
    Nos. 24283, 24284.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Thomas M. Sullivan, Downey, Sullivan & McCormick, Kansas City, for plaintiff-appellant and for third-party defendant-appellant.
    R. B. Miller, Jr., John R. Moore, Platte City, for respondents.
   SPERRY, Commissioner.

This suit in equity was brought for the purpose of cancelling a deed of trust.

Plaintiff, Foremost Construction Company, a corporation, sued Mary Jane Killam for damages growing out of an alleged breach of warranty on a tract of land conveyed by her to plaintiff’s grantor. Liberty Bank of Honolulu was also named as a defendant because it had acquired from defendant an interest in the note and deed of trust given to defendant as purchase price. The suit is bottomed on the fact that there were unpaid special taxes outstanding against the land when it was transferred to plaintiff. Such taxes were, eventually, settled fully by Title Company paying Kansas City the sum of $5,145.89.

Defendant and Liberty Bank of Honolulu, hereafter named as Bank, brought Kansas City Title Insurance Company, hereafter known as Title Company, and Clay County Abstract Company, hereafter referred to as Abstract Company, into the case as third-party defendants, on the theory that Title Company, through its agent, Abstract Company, had issued its mortgagee’s insurance policy to defendant, insuring her against this loss. The judgment was for defendant on plaintiff’s petition, and for defendant-third party plaintiff, on her claim, against Title Company, for attorney’s fees, in the amount of $3,750.00. Plaintiff and Title Company appeal.

Defendant received title to the land here involved, located in Clay County, Kansas City, Missouri, under the will of her deceased uncle, June 28th, 1958. She was and is a resident of Honolulu, Hawaii. She sold and conveyed the land to J. A. Peterson Investment Company, a corporation, on or about December 21st, 1959, for $30,000.00, conveying it by general warranty deed. As a part of the purchase price she received a note and deed of trust in the amount of $21,500.00. The trial court found that, as of December 31, 1962, the balance due on the note was $8,180.00.

As a part of the sale contract between defendant and Peterson defendant furnished the buyer a title insurance policy for which she paid Title Company a premium; and Peterson furnished to defendant, at its expense, a mortgagee’s Title Insurance Policy, through Title Company, covering her note and deed of trust. Thereafter, Peterson transferred the property to plaintiff by general warranty deed, subject to the mortgage.

At the time the sale contract was entered into there were a number of special tax bills outstanding affecting the property, which consisted of approximately twenty-five (25) acres of undeveloped land. Kansas City had extended sewer lines into the property and had assessed park improvement taxes against some portions of it.

Defendant-third party plaintiff testified to the effect that she received actual title to the property, after probate had ended, in May, 1959; that she then went to the city treasurer’s office to inquire about special taxes levied against it; that, on her first such visit, she learned nothing because Mrs. Sportsman, who had charge of that department, was not there; that, later she went back and Mrs. Sportsman gave her three paper slips and told her that they showed the special taxes against the property; that each of the slips had figures showing the amount of tax due thereon; that, shortly thereafter, she again visited the tax office to inquire as to whether she could pay the taxes in installments; that she ‘also inquired about special taxes that might accrue in the future, was shown maps in the engineer’s office, and was informed that, within a year, additional special taxes to the extent of $10,000.00 would likely be levied; that she then decided to sell the land; that she wanted to realize a net of $1,000.00 per acre, above taxes and other expenses; that, in August, 1959, she met in her attorney’s office, together with a real estate agent and a representative of Peterson; that her attorney listed all of the taxes and other expenses of which he had knowledge, which would be paid from the proceeds of the sale price; that she signed the sale contract in the belief that she would receive about $1,000.00 per acre for the land after deduction of all taxes and expenses. Mr. Davidson, her attorney at that time, testified and corroborated her testimony in this regard. The known taxes and expenses were considered in arriving at the sale price and were part of the price of the sale.

Defendant identified her Exhibit Y as being the mortgagee’s title insurance policy, issued to her by Title Company, through its agent, Abstract Company.

Mrs. Sportsman, a clerk in the Kansas City treasurer’s office, testified to the effect that she has charge of special tax accounts for the City, which are kept separate from general taxes. She identified the three exhibits, one as being evidence of the special park taxes here involved, having been assessed February 27th, 1959, and the remaining two as sewer tax bills issued August 31st, 1958. All of the taxes were payable at the time the real estate herein was transferred to Peterson, and when later transferred to plaintiff by Peterson. These are the taxes giving rise to this litigation. She stated that defendant came to her office several times in September, of 1959, and asked for a statement in full of special taxes on the Winn property; that she gave her three such statements. (The statements in evidence were paid in full on December 28th, 1962, by Title Company).

There was uncontradicted testimony from a number of tax experts, employees of Title Company, Abstract Company, and officials of Kansas City, that none of the tax statements here involved were found, or could have been found, in the offices where they legally should have been at the time the land was transferred by defendant, and not until long afterward; that they were improperly indexed, that Title Company experts searched the title for taxes at least three times and failed to find them. There is no evidence whatever tending to prove that defendant had any knowledge of the existence of these particular tax items until she was informed thereof shortly prior to the institution of this suit against her. The testimony of Mrs. Sportsman is inaccurate as to the time when defendant visited her office because it is not disputed that defendant left Missouri and went back to Hawaii, in August, 1959. Mrs. Sportsman must have been in error as to having given these particular statements to defendant (although defendant says she did give her two or three statements of special taxes). Mrs. Sportsman could scarcely have delivered copies of these statements to defendant at a time when, by the overwhelming weight of the evidence, they were not in her office but were lost somewhere in the vaults in the catacombs of City Hall, concealed under an anonymous or mislabeled file, only to be brought to the light of day nearly three years later when some unnamed city official declined to issue building or sewer permits on some of this property because there were unpaid special taxes thereon.

When they were discovered it was shown by the overwhelming weight of the evidence that they had never been signed or “certified” by the proper city official, as required by the Kansas City Charter. The trial court held that, by reason of that fact, they never became liens on the real estate here involved. However, we will not discuss that feature of the case because it is clear that, whether or not they constituted liens within the meaning of the applicable law, Title Company had, by its mortgagee’s policy, insured defendant against any and all claims based on these taxes.

The policy contains the following language applicable in this situation, to-wit:

“2. The Company at its own cost shall without undue delay defend the Insured in all litigation consisting of actions or proceedings commenced against insured, * * * which litigation is founded upon a defect, lien, or encumbrance insured against by this Policy, * * *
% >fí Hfi sj< >Je
“8. * * * The Company will not be liable for loss or damage by reason of defects, claims, or incumbrances created subsequent to the date hereof (excepting any statutory lien for labor or material insured against by this Policy) or for defects, claims or encumbrances created or suffered by the Insured claiming such loss or damage, or existing at the date of this Policy and known to the insured claiming such loss or damage at the date such Insured claimant acquired insurable interest but not known to the Company or disclosed to it in writing by the insured. * * (Emphasis ours).

By the above language of the policy Title Company insured defendant against all claims founded on a defect, lien or encumbrance except such claims as are founded on defects, claims, or encumbrances created or suffered by defendant; (these claims were not created or suffered by defendant, t/tey were created by law and existed before she received title); and those existing at the date the policy was issued (as these were) unless they were known to defendant at the time the insured acquired title and not known to Title Company. There is no substantial evidence tending to prove that Mrs. Killam ever had any personal knowledge of the existence of these particular claims. She had general information to the effect that sewers and parks were being constructed all over Clay County, and that some would likely affect her land. She made inquiry thereabout and learned of three such special tax claims. All tax claims that she or her attorney, or Peterson, or Abstract Company or Title Company, ever learned about were paid by her when the sale herein was finally consummated. This case was well contested. The trial court heard the evidence and found for defendant on the issue of her knowledge of the claims. We not only approve of that finding but hold that it is supported by the preponderance of the evidence. Defendant’s right to recover is not affected by record defects, at least, unless she had personal knowledge of same. Research Loan and Investment Company v. Lawyer’s Title Insurance Corporation, D.C., 225 F.Supp. 287, 289 et seq.

In ruling this appeal we have not cited legal authorities for the reason that our decision is based solely on the meaning of the language chosen by Title Company to define its obligation. That language is plain and clear. There is no room here for involved construction or interpretation. Title Company is bound to protect its insured against these claims unless they are plainly excluded by the terms of the policy herein above quoted.

“* * * [Provisions limiting or cutting down, or avoiding liability in the coverage made in the policy are construed most strongly against the insurer. * * * State Farm Mutual Automobile Insurance Company v. Mid-Continent Casualty Company, 378 S.W.2d 232, 235 (Mo.App.) The burden of proof is on the insurer to bring itself within the terms of the exclusionary clause. This it did not do.

The record here shows that Title Company issued its policy to defendant whereby it contracted to defend her against all claims except such as were specifically excluded. When these taxes came to light Peterson, who held Title Company’s policy of guaranty, brought the matter to the attention of insurer. Instead of protecting defendant, as was its obligation, it paid the tax claims and procured plaintiff to institute this suit against its own insured, guaranteeing plaintiff that Title Company would hold it harmless in any event. Its conduct in this respect does not add to its lustre, but we are powerless to do more than rule the questions of law presented to us.

The trial judge allowed defendant third party plaintiff $3,750.00 attorney fees against third party defendant, on her claim therefor. She asks for an additional allowance. Six court days were consumed in the trial of this case. The transcript consists of almost seven hundred (700) pages. There were scores of exhibits. A vast amount of time was required of defense counsel to search out the evidence and prepare the case for trial. Title Company was bound by its contract to defend this action at its cost. Shaver v. National Title & Abstract Company, 361 S.W.2d 867, 871, 98 A.L.R.2d 531 (Tex.). Since it refused to defend this action it is liable to Mrs. Killam for such breach.

We find that defendant-third party plaintiff is entitled to recover from third party defendant, Title Company, the full sum of $4,250.00 as and for her attorney fees herein.

Defendant asks for an allowance to defray the costs of briefing and attorney fees on this appeal. This request must be denied. Jourdan v. Jourdan, 251 S.W.2d 380, 384 (Mo.App.).

The judgment is modified in accordance with our finding that defendant third party, Killam, is entitled to receive from Title Company the sum of $4,250.00 as and for her attorney’s fees in the trial.court. As modified the judgment is affirmed and the cause remanded with directions that the trial court enter a new judgment in conformity herewith.

MAUGHMER, C., concurs.

PER CURIAM:

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

CROSS, P. J., HOWARD and BLAIR, JJ., and BROADDUS, Special Commissioner, concur.


author: BLAIR, Judge.

text:
    STATE of Missouri, Respondent, v. Robert McCLARY, Appellant.
    No. 24295.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      Blackford & Wilhelmsen, J. William Blackford, Kansas City, for appellant.
    Gerald Kiser, Pros. Atty., Liberty, for respondent.
   BLAIR, Judge.

This is a prosecution for a misdemeanor under Sections 64.460-64.487 V.A.M.S., the County Option Dumping Ground Law. The charge was that the defendant, on April 22, 1964, in Clay County, “willfully and unlawfully, did operate a disposal area for garbage, rubbish and refuse, without making application for, and obtaining a license for a dumping ground as provided for in Sections 64.460 to 64.487.” The state and defendant stipulated that “Clay County effectively established its County Option Dumping Ground Law on March 21, 1960,” Section 64.483, and was operating under this law at all times relevant to this controversy. The defendant was found guilty, in the precise language of the charge, of “operating a disposal area for garbage, rubbish and refuse, without making application for, and obtaining a license for a dumping ground.” He appeals and asserts that the information does not charge him with any offense, since Sections 64.460-64.487, as he says, do not prohibit the operation of a dumping or disposal ground or area without first applying for and obtaining a license.

Invoking the doctrine that criminal statutes must be strictly construed, he asserts that its application to the County Option Dumping Ground Law, hereafter called the dumping ground law, demonstrates that he has not violated any of its provisions. Criminal statutes must, indeed, be strictly construed, strictly against the state and liberally in favor of the accused. City of St. Louis v. Triangle Fuel Co., Mo.App., 193 S.W.2d 914, 915; State v. Chadeayne, Mo., 323 S.W.2d 680, 685. No person can be made subject to a criminal statute by guesswork or mere implication. State v. Taylor, 345 Mo. 325, 133 S.W.2d 336, 341. “A criminal statute is not to be held to include offenses or persons other than those which are clearly described and provided for both within the spirit and letter of the statute, and, if there is a fair doubt as to whether the act charged and proved is embraced within the prohibition, that doubt will be resolved in favor of the accused.” State v. Hall, Mo.App., 351 S.W.2d 460, 463; State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 471.

Thus a penal statute creating a new offense must be sufficiently clear to inform those sought to be subjected to it just what conduct on their part will render them liable to its penalties. “Statutes and ordinances which fix crimes, or quasi crimes, should so fix them that there can be no uncertainty. They should be so worded that one could read them, and know whether or not he was violating the law.” Ex parte Taft, 284 Mo. 531, 544, 225 S.W. 457, 461; Ex parte Hunn, 357 Mo. 256, 207 S.W.2d 468, 470.

“The reason of the rule (of strict construction) is found in the tenderness of the law for individuals, and on the plain principle that the power of punishment is fixed in the legislature, and not in the judicial department. It is the duty of the legislature, and not the courts, to define a crime, and ordain its punishment.” State v. Reid, 125 Mo. 43, 28 S.W. 172, 173. These rules must prevail even though courts may think that the legislature ought to have made a law more comprehensive and that by failing to do so it failed to accomplish a salutary purpose. 82 C.J.S. Statutes § 389, p. 928 ; 50 Am.Jur., Statutes, Sec. 388, p. 408; 26 Mo.Digest, Statutes, 9 Mo.Digest, Criminal Law,

The defendant contends that there is only one section in the entire dumping ground law which describes a punishable offense. This is Section 64.463 which reads:

“No person shall dispose of any ashes, garbage, rubbish or refuse at any place except a disposal area licensed as provided in .sections 64.460 to 64.487.”

He then argues that the state cannot place its reliance on this section because he was not charged with disposing of anything in, an unlicensed disposal area. In this argument he is correct. He was charged with operating a disposal area without first making application for and obtaining a license to do so. Accordingly, the state’s case must stand or fall on the remainder of the dumping ground law and specifically on a determination of the question whether or not any provision of this law makes it a punishable offense to operate a disposal area without first applying for and obtaining a license.

Deciding this question we examine the entire dumping ground law to determine from its language whether or not it prohibits the conduct with which the defendant is charged and makes such conduct an offense. In addition to Section 64.463 above quoted, the law provides:

“1. Any person desiring a license to operate a disposal area shall make application therefor to the county court on forms provided by it. 2. The application shall contain the name and residence of the applicant, the location of the proposed disposal area, and such other information as may be necessary. The application shall be accompanied by a fee of twenty-five dollars.” Section 64.467.

The law provides also that the county court shall notify the state division of health of the application for a license and that the division of health shall inspect the proposed site and determine if the proposed operation complies with the dumping ground law and the rules and regulations adopted pursuant thereto. If the division of health reports favorably on the application and the county court finds that the applicant is a responsible and suitable person, then the county court must issue a license to the applicant authorizing him to operate a disposal area on the proposed site for one year. All licenses expire one year after issuance but may be renewed upon payment of an annual fee of twenty-five dollars. The division of health is required to prepare and publish rules and regulations which shall contain sanitary standards for disposal areas and to inspect all licensed disposal areas. The county court may revoke any license after reasonable notice and hearing if it finds that the disposal area is not operated in a sanitary manner. Sections 64.470, 64.473 and 64.477. Section 64.487 provides: “Any person violating Sections 64.460 to 64.487 shall be guilty of a misdemeanor.”

Accordingly, we see that if the defendant has been charged with an offense it must be by reason of the provisions of Sections 64.467 and 64.487, or a combination of those sections with other provisions of the dumping ground law. Yet our examination of this law convinces us that nowhere within the entirety of its provisions does it expressly prescribe, or clearly, plainly and necessarily imply, in the terms in which criminal laws must be written, any prohibition against the operation of a disposal area without first applying for and obtaining a license. One would normally expect that the legislature would want to include such a prohibition in a law of this nature and that it would declare it in clear and unmistakable language. Still the fact remains that this was not done. Whether this omission resulted from inadvertence or studied consideration we cannot say. In any event, we are governed by what the legislature said by its own enactment, even though we might think an important provision has been omitted through inadvertence. As stated in Gray v. Wallce, Mo., 319 S.W.2d 582, 585; “We must, however, determine the legislative intent from what the legislature said and not from what we think the legislature intended to say or inadvertently failed to say.” To like effect is United Air Lines, Inc. v. State Tax Commission of Missouri, Mo., 377 S.W.2d 444, 448, where our Supreme Court, en banc, said: “We are guided by what the legislature says, and not by what we may think it meant to say.” Opinions that the legislature ought to have made the law more comprehensive and that by failing to do so it failed to accomplish a salutary purpose are wholly immaterial.

For us to enlarge the terms of this law by construction to make it embrace the defendant and his conduct would be a flagrant violation of the rule that criminal statutes must be construed strictly against the state and liberally in favor of the accused. We have no possible authority to construe this law as embracing an offense which is not already expressly written into it or so clearly, plainly and necessarily implied by the words the law employs that we can fairly say such offense is proscribed by the law beyond all rational doubt. State v. Hall, Mo.App., 351 S.W.2d 460, 463; State v. Dougherty, 358 Mo. 734, 216 S.W.2d 467, 471; St. Louis County Library District v. Hopkins, Mo., 375 S.W.2d 71, 73; Wolfson v. Chelist, Mo.App., 278 S.W.2d 39, 43, affirmed, Mo., 284 S.W.2d 447; Christy v. Petrus, Mo. en banc, 365 Mo. 1187, 295 S.W.2d 122. What is charged against the defendant is not proscribed by this law. To read it into this law by construction would be for us to legislate rather than to adjudge, and this we are forbidden to do. “It is the duty of the legislature, and not the courts, to define a crime, and ordain its punishment.” State v. Reid, 125 Mo. 43, 28 S.W. 172, 173.

On the other hand, it could well be that the failure of the legislature to prohibit the operation of an unlicensed disposal area was not an inadvertence. As observed, Section 64.463 prohibits any person from disposing of any ashes, garbage, rubbish or refuse except in a licensed disposal area. Section 64.487 provides that any person who violates Section 64.463 is guilty of a misdemeanor. Perhaps the legislature concluded that declaring all persons disposing of any of the forbidden wastes in an unlicensed area guilty of a misdemeanor was sufficient, as a practical matter, to coerce those “desiring” to operate a disposal area to obtain a license before doing so. Viewing the scope and effect of Section 64.463, the legislature might well have expected that no one would attempt to operate an unlicensed disposal area after he contemplated the consequences of doing so. Analyzed, that section means: (1) The operator of such unlicensed area would be guilty of a misdemeanor if he received and disposed of any of such wastes in such area. (2) The operator would be guilty of a misdemeanor if he aided, abetted, encouraged or solicited any other person to dispose of such wastes in such area and that person disposed of them there. State v. Muchnick, Mo.App., 334 S.W.2d 386, 388; State v. Kramer, 206 Mo.App. 49, 226 S.W. 643, 644; Kansas City v. Lane, Mo.App., 391 S.W.2d 955, 958; 9 Mo.Digest, Criminal Law, (3) Any customer of the operator of such an area who disposed of such wastes in such area would be guilty of a misdemeanor. Logically, the legislature could have believed that no operator of a disposal area would want to make continual misdemean-ants of himself and of his customers, and thought that Section 64.463 was adequate to compel the licensing and regulation of disposal areas. At any rate, we cannot say that it did not think so.

Since we have reached the conclusion that the information charged no offense, it is unnecessary to consider other questions raised by this appeal.

The judgment is reversed and the defendant is discharged.

All concur.

      . All statutory references are to Vernon’s Missouri Annotated Statutes.


text:
    Robert W. KEYTE, Respondent, v. Roy Jefferson PARRISH, Appellant.
    No. 24304.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      Frank E. Meyer, Wesner, Wesner & Meyer, Sedalia, for appellant.
    Vance Julian, Clinton, for respondent.
   BLAIR, Judge.

A solution of the questions presented by this appeal does not require a detailed review of the evidence. Some of the facts must preface discussion of the questions. Others will be recited as they become relevant. On August 31, 1962, Roy Jefferson Parrish was driving his Dodge automobile east on Highway No. 52 near Windsor, Missouri. It was shortly after 10 P.M. and the night was dark. Suddenly the electrical system of his vehicle ceased to function properly. The lights grew dim and the motor died. He managed to bring it to a stop with its left wheels still on his lane of the highway and its right wheels on the shoulder. The view we take of the case renders the precise position of the automobile irrelevant. The motor was dead and could not be started again. He undertook to push the automobile off the highway but lacked the strength to move it from its standstill position. His efforts to stop passing motorists and obtain help from them were unavailing. Leaving his parking and tail lights burning he walked westward to a farm house to telephone for assistance. When he returned shortly afterward, he discovered that his automobile had been struck in the rear by a GMC truck being driven by an agent of Robert W. Keyte. Both vehicles were damaged. Keyte sued Parrish for $2200.00 for damage to his truck and for $475.00 for loss of its use. Parrish denied liability and counterclaimed for $445.00 for damage to his automobile.

The cause was tried before the court without a jury. The issues were found against Keyte and for Parrish on the petition and counterclaim and judgment was rendered for Parrish for $445.00. Following the entry of the finding and judgment, there was an immediate colloquy between the court and counsel for both parties. It lasted only a few minutes and it ended by the court setting aside its finding and judgment and ordering a new trial. That action resulted in this appeal by Parrish.

Questioned first by Parrish is the action of the court in setting aside the judgment and granting a new trial with no written motion before it. An oral motion for new trial was made during the colloquy and no objection was raised that the motion was oral and not in writing. Besides, courts retain control of their judgments during the thirty day period after their entry and are authorized to order a new trial on their own initiative for any reason for which they might have granted a new trial on motion. Civil Rule 75.01 V.A.M.R. No written motion was required. Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347, 349; Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 281. Of course, any order granting a new trial, on the motion of a party or the court’s own motion, can only be entered “upon good cause shown” and after notice and hearing. Civil Rule 78.01; Hoppe, Inc. v. St. Louis Public Service Co., supra, 235 S.W.2d 1. c. 349. In this case there is no question of notice and hearing. As observed, the attorneys for both sides were present and the court ordered a new trial without any objection that the notice was too short or the hearing was objectionable in any way.

Prior to the trial Keyte submitted two interrogatories to Parrish. The interrogatories and answers were as follows:

Q. “Did you or any one on your behalf at the time and place of the occurrence described in your counterclaim, or have you since, obtained the names of any witnesses to the occurrence? If so, state the names and addresses of the witnesses.”
A. “Neither I nor any one acting in my behalf know of any one who witnessed the occurrence.”
Q. “Did you or any one on your behalf obtain the names of any witnesses at the time and place of the occurrence described in your counterclaim, or has any one on your behalf obtained the names of any witnesses to said occurrence since that time? If so, state the names and addresses of the witnesses.”
A. “Neither I nor any one acting in my behalf have learned the names of any witnesses to the occurrence. Mr. John Albers of Windsor, Missouri, was the first arrival to the scene.”

During the colloquy that immediately followed the entry of judgment, counsel for Keyte asserted that these interrogatories had not been truthfully answered because Parrish had not included the names of two witnesses, Mr. and Mrs. Clifford M. Yount. These witnesses had testified for Parrish during the trial. Their testimony was that on the night in question they were traveling east in their automobile on Highway No. 52 from Windsor enroute to Cole Camp after 10 P.M. and they saw Parrish’s car standing partially on the highway and the shoulder with the tail lights burning. This was before the collision. Later that night on their return trip to Windsor they passed the locale again and saw both the automobile and truck after the collision had occurred. They testified they did not see the collision and no one claimed they did. At first the court said it believed the word “occurrence”, employed in the interrogatories, meant only “the actual collision” to a layman. Counsel for Parrish said: “I took the interrogatory to mean, witnesses to the actual collision, Your Honor.” Counsel for Keyte argued that the word “occurrence” was broad enough to include not only the actual collision itself but also the observation by the Younts of Parrish’s automobile before the collision and their observation of the automobile and truck after the collision. He asked the court to cite Parrish for contempt. The court refused to cite Parrish for the reason it did not believe that a layman would understand the word “occurrence” to have the meaning attributed to it by Keyte’s counsel. Finally, the court came to the conclusion that Parrish’s counsel should have seen to it that the interrogatories were answered with this broad definition of the word “occurrence” in mind. Keyte’s counsel then moved for a new trial and the court said: “I feel that your request to set aside the judgment should be acceded to” * * * “but it’s on the failure of the attorney to not properly answer the question rather than the defendant.” Parrish’s counsel then said: “I honestly can tell the court I do not know whether I knew of it (the evidence of the Younts) at the time of the answering of these interrogatories, or not.” The court said: “Well, it looks like, according to your defendant’s testimony, you did.” Thereupon, the court set aside its finding and judgment and granted a new trial in the exercise of its discretion on the assertion of Keyte’s counsel that he had been surprised by the testimony of the Younts since he had not been afforded a pre-trial opportunity to meet it.

Parrish argues that the action of the court in setting aside its finding and judgment on. the ground of surprise was an abuse of discretion because it was not entered “upon good cause shown”. Civil Rule 78.01. Keyte calls to our notice several rules which have been held to govern particular cases where discretionary action was under scrutiny by appellate courts and argues that they apply to this case and ought to lead us to affirm the court’s order. We acknowledge the validity of all the rules on which Keyte relies when applied to appropriate cases. Of course, trial courts have “broad discretion to choose a course of action during the trial when evidence is challenged on the ground it has not been disclosed in answers to interrogatories”, but that discretion is not without limits. Of course, “trial courts are vested with discretionary authority over questions of fact and matters affecting the determination of fact issues in setting aside a judgment”, but the discretionary authority cannot be abused. Also it is true that “appellate courts are more liberal in sustaining trial courts in granting a new trial than in denying it”. The decisions Keyte cites sustain these general rules. There is no need to analyze these decisions. In his brief Keyte does not demonstrate how they apply to the action of the court in this case and require a ruling of affirmance, nor does he analyze the decisions cited by Parrish and demonstrate that they do not govern this appeal.

Let us examine Keyte’s claim of surprise. Parrish presented three witnesses to support his denial of liability and his counterclaim, himself and Mr. and Mrs. Clifford M. Yount whose testimony we have summarized already. Parrish testified first. The Younts followed him to the stand, first Mr. Yount and then Mrs. Yount. The testimony of the Younts covers many pages of the record. At the very outset of the direct examination of each it became apparent to Keyte’s counsel that they were witnesses to the “occurrence” as he construed the meaning of that word. During the cross-examination of each it was developed that they had told Parrish the substance of what they were then testifying months before the interrogatories were submitted to Parrish. They were examined at length on cross-examination by Keyte’s counsel. At the end of Mrs. Yount’s testimony each party rested his case. The court then said: “You gentlemen want me to tell you how I feel about this case? Do you want to argue it, or what?” Counsel for both parties announced in identical language: “I don’t care to argue it.” The court then orally announced that it was finding for Parrish and against Keyte. Then it stated that it was not quite clear as to the value of Parrish’s automobile immediately after the collision. Parrish was recalled to the stand and testified that the value was $50.00 or $55.00. Counsel for Keyte then cross-examined him first about the market value of the automobile and then about his answers to the interrogatories set out above. He developed from Parrish that he had known the substance of the testimony of Mr. and Mrs. Yount months before he answered the interrogatories. Following this redirect and recross-examination of Parrish each party again rested his case and the cause was submitted to the court for its decision. Thereupon it found the issues for Parrish and granted him a judgment for $445.00.

Of course, trial courts can impose sanctions and take appropriate corrective actions against parties who do not answer interrogatories truthfully and in appropriate cases it can even grant a new trial on the ground of surprise. Civil Rules 61.01, 78.01; Barron & Holtzoff, Federal Practice and Procedure, Vol. 2A, Section 776, p. 44 (1963-4 pocket part). But any objection that one has been victimized by surprise must be timely made and that means as early as possible. This record establishes beyond any opportunity of denial that counsel for Keyte, at the very outset of the direct examination of both Mr. and Mrs. Yount, knew that each was commencing to testify about the “occurrence” as he defined it. The interrogatories and the answers to them were in his possession and he knew that the names of these two witnesses had not been included in the answers. Never at any time as the steps outlined in the preceding paragraph moved gradually toward judgment was any suggestion of surprise made to the court. Keyte’s counsel stood mute while judgment was rendered against Keyte and for Parrish. Then for the first time he raised the objection of surprise.

Our courts have uniformly ruled that if a litigant is surprised by something that occurs during the trial he must call the attention of the court to it at the time it occurs and request some corrective action or ruling. He cannot stand mute and proceed with the trial, gambling on his chances for a favorable judgment, and then raise the question of surprise for the first time when the judgment rendered is unfavorable to him. If he gambles on the judgment in this way, he must abide by the result. This is the course pursued by Keyte in this case and the trial court did not have the right to exempt him from the consequences of his gamble. Brown v. Thomas, Mo.App., 316 S.W.2d 234, 236; Christesen v. Prewett, Mo.App., 11 S.W.2d 1112; Formento v. Hines, Mo.App., 225 S.W. 104, 105; Thiele v. Citizens’ Ry. Co., 140 Mo. 319, 41 S.W. 800, 805; Silvey v. Herndon, Mo.App., 234 S.W.2d 335, 340; State v. Biel, Mo., 169 S.W.2d 375, 376; Pitzman’s Company of Surveyors and E. v. Bixby & Smith, 338 Mo. 1078, 93 S.W.2d 920, 921; Tuttle v. Tomasino, Mo., 336 S.W.2d 683, 689; Lynn v. Kern, Mo., 323 S.W.2d 726, 731. We hold on this record that the order setting aside the judgment and granting a new trial was an abuse of discretion.

Furthermore, the Supreme Court, en banc, in State v. Cloyd, 394 S.W.2d 408, 410, a prohibition proceeding, ruled that the interrogated party was not required to answer an interrogatory: “State the names and addresses of all persons known to have relevant knowledge of any facts pertaining to the occurrence alleged in plaintiffs’ petition filed herein.” Speaking of this interrogatory the court said: “Interrogatory No. 1 uses terms similar to the language in Rule 57.01, such as ‘relevant to the subject matter’ and ‘knowledge of relevant facts’, but following the language of the rule does not render the question proper. Relevancy is to be determined by the court as a matter of law when a factual question is asked and an objection is made. Interrogation is restricted to factual matters. The question would have been objectionable if asked at the taking of a deposition and has no better standing when propounded as an interrogatory. It calls for a conclusion and determination by the party as to what is relevant knowledge or relevant facts. Furthermore, the interrogatory is vague and uncertain. It refers to the 'occurrence’ when several occurrences are mentioned in the petition. The party interrogated should not be called on to speculate as to what is intended by the question. Since the interrogatory. calls for an opinion or conclusion of law and is too general, indefinite, and uncertain, it is fatally defective under the rule applied in State ex rel. Transit Casualty Company v. McMillian, Mo., 349 S.W.2d 210.” (Emphasis supplied)

The interrogatories in the present case both referred to “the occurrence described in your counterclaim” and there were several occurrences mentioned in the counterclaim. They should not have been written or propounded in this form. Counsel for the parties could not agree upon their meaning. The court itself during the colloquy held first one and then another concept for their meaning. Their ambiguity and vagueness generated this controversy and resulted in this appeal. Interrogatories should be presented in language of unmistakable meaning, otherwise they can become a tool for entrapment of the unwary. The trial court exonerated Parrish of bad faith in answering as he did and on this record we believe it to be our duty to exonerate his counsel. This we do.

For these reasons, the order setting aside the judgment and granting a new trial is reversed and the cause is remanded to the trial court with our direction to reinstate the judgment.

All concur.


author: DEW, Special Commissioner.

text:
    Elizabeth Walter ROGERS, Appellant, v. Daniel L. ROGERS, Respondent.
    No. 24317.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      Roy K. Dietrich, Arlyn D. Haxton, Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, for appellant.
    Charles L. Carr, Kansas City, Clyde E. Rogers, Fayette, for respondent.
   DEW, Special Commissioner.

Plaintiff sued for divorce, custody of her children, allowance for their support and maintenance, temporary and permanent alimony and attorneys’ fees and an accounting of her property and effects in the possession of the defendant. By his answer defendant challenged the sufficiency of plaintiff’s residential qualifications to vest the trial court with jurisdiction of the parties. He further denied, generally, the controversial matters pleaded by the plaintiff or their signification, asked for custody of the children, made no counterplea for divorce, but pleaded his desire for a reconciliation. He admitted his liability to support the children. The court denied the plaintiff a divorce and other relief prayed for, dismissed her petition, but awarded her $750 attorneys’ fees, which defendant paid at the close of the testimony. Plaintiff has appealed.

The evidence as to the plaintiff’s residence was sufficient to support the ruling of the court sustaining its jurisdiction and the point is not raised here on appeal.

The sole ground assigned in plaintiff’s petition is that the defendant has offered her such indignities as to render her condition intolerable. Although motions for temporary alimony and other relief prayed were filed, they were not called up or presented to the court for hearing and are not an issue on appeal.

Plaintiffs evidence was that as a young girl she lived in Overland Park, Kansas; that she later attended Grinnell College, Grinnell, Iowa, aftewards taking a business course enabling her to obtain employment in the office of the Atomic Energy Commission in 1955 in Albuquerque, New Mexico. There she met the defendant, then a captain at the Kirkland Air Force Base. They married in 1959, she at the age of 28, he at 32. A few months thereafter defendant was transferred to Eglin Air Force Base, Eglin, Florida. According to plaintiff, he told plaintiff he was being transferred because of personal differences within the personnel.

Plaintiff testified to incidents pleaded by her as indignities offered her by the defendant. She said that at Eglin, defendant embarrassed her by quarreling with the lady in charge of issuing furniture for the housing at the Base, after which he told the plaintiff that the lady had fainted. She testified that the defendant publicly and privately criticized her housekeeping; that on one occasion he told her that considering her premarital chastity her “dates” must have been “goons”. Once, she said, when visiting neighborhood friends, she, at a late hour, referred to her sleepiness and was humiliated by defendant’s remarks to the guests that he hoped she would get sleepy so that she would not pester him all night to make love to her. She said that shortly after their marriage defendant became indifferent toward her, refusing for long periods to show her any affection or even to talk to her, and when she would suggest outside advice on their marital troubles, he would tell her she should adjust herself to his moods, which he would not change, and thus to make him care for her.

Plaintiff further testified that within a year after their marriage she obtained defendant’s consent to come to Kansas City for psychiatric treatments which she thought might help solve their marital troubles. After a month’s treatments she returned to Eglin Base to build up defendant’s ego and to regain his affection. During her stay in Kansas City she wrote several letters to defendant, expressing her deep and abiding affection for defendant, acknowledging his letters and birthday remembrance to her. Soon after her return she became pregnant with their first child, a boy.

According to plaintiff’s testimony defendant became oblivious of her pain and suffering while she was expecting the birth of their child and subjected her to embarrassment in public. On one occasion, she said, at a neighborhood party, defendant suggested to a man present that he feel plaintiff’s abdomen to notice movements of the unborn child. Referring to the time when it was necessary for her to go at once to the hospital for her first child delivery, defendant calmly prepared and ate a dish of cereal. Plaintiff stated that defendant often indulged in-rude arguments with her friends; that he would let her lady friends return to their homes in the dark alone after their visits and often would not even turn on the lights for them. She said she wanted to have her first child baptized, but defendant refused, saying that they should wait for the child to make its own decision on the matter. Her second child, a boy, was born within two years after the first.

Plaintiff said that defendant criticized her manner of changing diapers on the children ; that he complained if she seemed to show a preference for one of the children over the other if she sought to comfort either in pain or trouble. She related an incident when attending a party in a neighbor’s house where the hostess had frankly asked the guests to leave early since she was planning a trip the following morning, and defendant insisted on staying and did stay until an early hour in the morning, thus causing plaintiff much chagrin and embarrassment. She stated to the court that she would not divorce her husband for those indignities alone, which she had described, but that they should be multiplied by the hundreds. In July, 1963, plaintiff separated from defendant, returning with her father and her children to Kansas City, Missouri, where she found an apartment on Ward Parkway that would accept children.

Friends and neighbors testified to the plaintiff’s good health and happy disposition before the marriage and as to her nervousness and reticence during her pregnancies and thereafter. They spoke of defendant’s apparent lack of solicitude toward plaintiff’s physical condition after the separation. They praised her capability as a mother of her two baby boys and as an excellent housekeeper.

The extensive testimony relative to plaintiff’s substantial investments and assets in her own name will be omitted for the reasons stated later.

Testifying in his own behalf the defendant said he was a major in the United States Air Force and a veteran of the Korean war. He was questioned about the incidents pleaded and described by the plaintiff. He explained that his remark that plaintiff did no work around the house was made in a bantering “tongue-in-the-cheek” manner; that she, in fact, was such a good housekeeper that she got nervous if anything about the house was out of order; that he never criticized plaintiff about changing the babies’ diapers but did say that one of the neighborhood women assisting plaintiff, changed the diapers too often and unnecessarily. He admitted saying at a friend’s house one evening that he hoped plaintiff would “sleep so that she would not ask me to pester her all night long”. He said that among their friends such a remark would call for a “blood look” from the wife, which he considered a compliment. He stated that plaintiff tended to panic in emergencies, and when one of the children might hurt himself, she would pick up the child and cause him to scream and call for defendant, who would take the child and quiet him down. On such occasions plaintiff would become offended. Defendant was asked to explain the charge that on one occasion at a neighborhood gathering he suggested to one of the men present that he feel of plaintiff’s abdomen to prove defendant’s statement that movements of the unborn child could be felt. He said, in effect, that there was much conversation there about the expected child and defendant remarked to a man present that such prenatal activity of the child could be noted, which the man seemed to doubt. Defendant said that in his exuberance over the prospect of his first child he made the suggestion which, of course, was not carried out by the other guest. Plaintiff was much embarrassed about the matter, for which defendant later apologized to her at home.

Defendant denied any neglect of plaintiff at the time of her first confinement. He said he was at ali times concerned about her condition. When she and the baby returned from the hospital he assumed the duty of feeding the baby at 2:00 o’clock in the morning. Plaintiff’s pain and suffering continued and defendant took her back to the hospital. The doctor found nothing unusual about her condition and she returned home. However, the continued pains were so severe that he took plaintiff again to the hospital, where the cause of her trouble was diagnosed and treated. Returning again to her home, and with the help of plaintiff’s mother and later his own mother, plaintiff and the baby were cared for. While plaintiff was in the hospital, defendant called to see her every day. During such hospital confinement following the birth of the first baby he had the sole care and responsibility for it, employing a neighborhood girl to sit-in while he was absent at the hospital. Since defendant’s work and schedule required him to be at work at 7:00 o’clock in the morning he got his mother to help the family and she stayed four weeks.

When asked about an incident complained of by the plaintiff when defendant invited a house guest to visit them and did not first consult the plaintiff, he said the guest was a young nephew of his and his visit was enjoyed by all the family, including the plaintiff. He also denied that he pretended deafness when spoken to by the plaintiff. They discussed their moods, he said, but never did he give plaintiff the impression that she would have to live with him regardless of his moods which he would not change. As to refusing to leave a party early after the hostess had requested the guests to do so because of her plans to start early the next morning on a trip, he said the host asked him to stay longer, which he and the plaintiff did with another couple, and helped the hostess clean up the dishes. Regarding plaintiff’s property and effects, he testified that he had sent them all to plaintiff as she had requested.

Defendant further testified that when he came to Kansas City on September 23, 1963, to take the plaintiff and his two children back home, she told him that she had been contemplating a divorce. She urged him to go with her to her attorney’s office and that he told her that they should be able to settle their marital troubles without an attorney. The next morning at his motel, he was served with a summons in a divorce case. He called the plaintiff, who came by and urged him again to go with her to see her attorney. Defendant agreed to go, but requested plaintiff to advise the attorney that the defendant would sign no papers that would commit him. He said the attorney talked generally about the duties 6f a husband toward his wife.

On the witness stand defendant was asked what his present attitude was concerning the plaintiff. He answered that he realized that he loved the plaintiff and their children very much; that he needed them and that they needed him; that he was willing to do anything possible to solve the problems of the marriage; that he would be willing to accept a selection to work for a doctor’s degree which plaintiff had thought best for the family. He said he thought the children should be brought up under the influence of the family. Addressing the plaintiff from the witness chair, he said: “Betsy, I do love you and I do need you and the boys, and I hope you need me”.

The defendant’s father, mother and sisters testified in his behalf. They said they had not known much of the marital difficulties between the parties, and from the letters from both and their statements, they believed plaintiff and defendant were happy. They praised the plaintiff as lovable, truthful and as a good mother, and said she had never complained to them about the defendant’s treatment of her. They said she was a delicate person and required much love and affection. The father admitted having remarked to plaintiff’s counsel that at times defendant “can be unbearable to live with”. He explained that he had reference to the “ups and downs” a father has with his sons to impress upon them the sterling qualities of manhood. He compared his remark to that of plaintiff’s counsel referring to the little boys of the parties as “little demons”. The lengthy examination of the defendant regarding his financial situation will likewise be omitted, as later explained.

In rebuttal plaintiff stated that during the period of treatments by her psychiatrist she wrote the affectionate letters to defendant in evidence, which were prompted by the doctor in order to build up defendant’s pgo and to regain his affection for her. She said she had lost her affection for the defendant and knew of nothing she could say that would make a reconciliation possible.

The court found that the plaintiff was not the Innocent and injured party; that she had not proved legal grounds for a divorce, and that she was not entitled to any of the relief prayed. The decree thereupon denied the divorce and other relief asked, dismissed plaintiff’s petition with prejudice at plaintiffs cost, and allowed her $750 attorneys’ fees.

The decree was handed down on December 16, 1964. On December 24, 1964, plaintiff filed her motion for judgment or for a new trial. On February 26, 1965, said motion was argued, at which time plaintiff submitted to the court an affidavit of plaintiff’s psychiatrist, from whom she had received treatments during her absences from her home. The affidavit contained six pages of confidential exchanges between the doctor and plaintiff, all hearsay so far as the plaintiff’s alleged statements were concerned. It also contained opinions and conclusions of the doctor therein pertaining to plaintiff’s marital relations. No part of the contents was available to the defendant for cross-examination, objections or counterproof. No order of acceptance was made on the submission of the affidavit. The defendant here objects to its consideration as a part of the evidence of record on the ground of its incompetency and inadmissibility. The defendant’s counsel did join in the approval of the transcript but, as stated, the transcript does not show the admission of the affidavit or any agreement by the defendant to admit it. Under the circumstances we deem the affidavit no part of the evidence of record.

Plaintiff’s first point of error is that the court erred in finding that the plaintiff did not prove grounds for divorce or that she was the innocent and injured party. Her second point is that the court erred in dismissing plaintiff’s suit without awarding her judgment for her expenditures for the support and maintenance of her minor children. The two points are so interrelated that we think it proper to consider them together.

It is our conclusion that plaintiff’s right to recover in the instant case for money expended by her for the support and maintenance of her children since separation, depends first upon the granting to her of a decree of divorce therein. Section 452.070, RSMo 1959, provides that: “When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children”, etc. In other words, such relief as here sought for reimbursement for support and maintenance of her children is contingent upon and an adjunct to an antecedent decree of divorce. The result is, so far as the present case is concerned, that unless the trial court erred in refusing to grant the plaintiff a decree of divorce there exists no authority in the case for the court to give her judgment for her outlay for child support. Stone v. Stone, Mo.App., 393 S.W.2d 201, 205; Klenk v. Klenk, Mo.App., 282 S.W. 153, 157. What remedy, if any, she may have by common law action or otherwise, is not before us for determination. Lodahl v. Papenberg, Mo., 277 S.W.2d 548, 551.

Turning our attention to the assertion that the court erred in dismissing the plaintiff’s petition for the reasons assigned in the decree, we are cognizant of several established general principles of divorce law. On appeal, as in other non-jury cases, the appellate court must review this case upon the law and the evidence as in suits of an equitable nature. The judgment of the trial court should not be set aside unless clearly erroneous, and due regard should be given to the opportunity of the trial judge to judge the credibility of the witnesses. Missouri Supreme Court Rule 73.01(d), V.A.M.R. In a divorce case the state is a party thereto and public interests must be guarded in such actions. Willis v. Willis, Mo.App., 274 S.W.2d 621, 626; Hartle v. Hartle, Mo.App., 184 S.W.2d 786, 789(3); State ex rel. Couplin v. Hostetter, Mo. in Banc., 344 Mo. 770, 129 S.W.2d 1. Divorces are not granted for the mere asking. Langshaw v. Langshaw, Mo.App., 331 S.W.2d 15, 18.

The indignities necessary on which to base an action for divorce on that ground must be such as to render the life of the complaining party intolerable. Furthermore, as this court has said:

“A single act, or occasional acts, will not suffice. The acts relied upon must amount to a species of mental cruelty, and must evidence a course of conduct by one of the parties toward the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relation.”

Thomas v. Thomas, 288 S.W.2d 689, 696, certiorari denied, 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77. See also Clemens v. Clemens, Mo., 235 S.W.2d 342, 346; Heaven v. Heaven, Mo.App., 363 S.W.2d 33; Moore v. Moore, Mo.App., 337 S.W.2d 781.

In Capps v. Capps, Mo.App., 65 S.W.2d 661, 663, it was ruled by this court that trivial quarrels and disagreements due to lack of conciliatory temper in both husband and wife were not indignities entitling divorce. “ * * * a decree of divorce * * * cannot rest on one indignity * * * or, for that matter, on occasional acts or words.” Price v. Price, Mo.App., 281 S.W.2d 307, 311.

In the ease at bar very few of the alleged indignities included in the plaintiff’s pleading and proof approached the gravity and character of those contemplated by the statute. Furthermore, they were not shown to constitute or demonstrate a course of behavior on defendant’s part toward the plaintiff deemed requisite under the law to justify the drastic penalty of marriage dissolution. Isolated incidents of consequence equal to those complained of by the plaintiff in this case are of common occurrence in the relationship of marriage, but, under the law, do not warrant nullification of the bonds of matrimony.

The evidence herein does not tend to prove perfection or grave fault in either party, but does indicate some of the contributing facts explanatory of the complaints. It was shown that the plaintiff was a young woman of highly sensitive disposition and somewhat of an unforgiving nature and tending to exaggerate the adversities of life. The inferences are strong that the burden of her two pregnancies; the pain and suffering before and after the births of the children, and the strain of the subsequent care and concern for the babies contributed to render her more susceptible to discontent. Plaintiff’s solicitude and responsibility for her two healthy baby boys, four and two years old, respectively, probably served to tax her physical and mental endurance. Through her able counsel she was given the privilege of submitting to the court all of her complaints. Under the decree, which she now resists, she yet retains her marriage, her husband, equal custody of her children, and the opportunity to regain the happy family relation so vital to all concerned.

The judgment should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the court and the judgment is accordingly affirmed.

All concur.


author: JAMES D. CLEMENS, Special Judge. PER CURIAM:

text:
    J. E. ELY, Plaintiff-Respondent, v. Gordon PARSONS, Parsons Construction Company, and Harold H. Parsons, Defendants, Gordon Parsons and Harold H. Parsons, Appellants.
    No. 31919.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    As Modified Feb. 21, 1966.

      Charles E. Rendlen, Jr., of Rendlen & Rendlen, Hannibal, for appellants.
    Marion F. Wasinger and Frank B. Harvey, of Carstarphen, Harvey & Wasinger, Hannibal, for respondent.
   JAMES D. CLEMENS, Special Judge.

The keystone of this case is the question of defendants’ negligence as a matter of law. The plaintiff was driving his automobile along a highway when the defendants’ road grader emerged from a private road. There was a collision, causing damage to both vehicles. Plaintiff J. E. Ely sued and defendant Gordon Parsons counterclaimed. The jury found against the plaintiff on his petition and for the defendant Gordon Parsons on his counterclaim. The trial court granted plaintiff a new trial, and defendants Gordon Parsons and Harold H, Parsons appeal, the only issue here being whether the trial court was justified in granting the new trial.

It was granted primarily on the ground that the driver of the grader, defendant Harold Parsons, was contributorily negligent as a matter of law. The trial court further based its order on the ground that it had erred in allowing the defendant to amend the counterclaim at the close of evidence. Additionally, the plaintiff claims he was entitled to the new trial for errors in empaneling the jury and in a given instruction. However, we believe the issue of the defendants’ contributory negligence is decisive on this appeal, and we so limit our opinion. We state the pertinent facts in a light favorable to the defendants.

State Highway No. 19 runs due east and west through Ralls County, between the towns of Perry and New London. There is a paved surface twenty feet wide with concrete flanges about six inches wide and four inches higher than the pavement. This paved surface is flanked by six-foot shoulders and by ditches and back slopes of unstated widths. The highway was being repaired, and defendant Gordon Parsons had a subcontract for grading the shoulders, ditches and entrances. The highway was liberally marked with warning signs, which plaintiff ignored. The Arch Robertson farm lay on the south side of the highway, and a private road led upgrade from the highway to his house. The defendants’ work included grading this entrance. Defendant Harold Parsons was near the Robertson house, 75 to 100 feet back from the highway, operating his grader down the private road toward the paved portion of the highway. Meanwhile, the plaintiff was driving eastward at 50 to 60 miles per hour along the very south, right-hand edge of the paved portion of the highway. Each driver’s view of the other was unobstructed for one-half to one mile. When plaintiff was about half a mile west of the Robertson entrance he saw the grader, which was then about a hundred feet back from and headed down toward the highway. Harold Parsons was then at a stop, and although he looked both ways he did not see plaintiff coming from the west. Harold Parsons then “set his blade” and begun moving the grader forward, at a speed of less than one mile per hour, without again looking toward the highway. He testified:

“Q. Now you told Mr. Rendlen that you were back about a hundred feet from this driveway when you looked both ways and you saw a car coming from the east but didn’t see any thing coming from the west, is that right?
“A. I said approximately, didn’t I, seventy-five to a hundred feet.
“Q. Well, whatever it was. I thought you said a hundred feet, but whatever you said, you looked and you saw a car coming from the east and none coming from the west, is that right?
“A. That’s right.
“Q. Then you put your blade down and it took about two minutes to get down to the highway and you never looked again, is that right?
“A. I never looked east or west, no, sir.”

Plaintiff did not see the grader again until the moment of impact and the defendants’ grader had just come to a stop when the two vehicles collided near the edge of the pavement, the right side of plaintiff’s car sideswiping the front tires of the grader.

As said, after a verdict and judgment in the defendants’ favor on both the petition and the counterclaim, the trial court granted plaintiff a new trial on the ground that the defendant grader driver was guilty of contributory negligence as a matter of law. We do not review this ruling with the oft-repeated statement that the granting of a new trial is discretionary with the trial court. That is so when the issue is one of fact. But the ruling now before us is one of law, and we review it unhindered by any presumption in favor of correctness. Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142 [10]; Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993 [2], 125 A.L.R. 674. The question of defendants’ freedom from negligence was for the jury, unless reasonable minds could not draw such a conclusion; and we must consider the evidence in the light most favorable to the defendants, in whose favor the jury found. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498 [3,4]; Johnson v. Lee Way Motor Freight, Inc., Mo., 261 S.W.2d 95 [1].

In their brief the defendants stress the evidence showing plaintiff knew of the highway work, that he passed defendants’ warning signs, and that he did not maintain a lookout after he saw their grader approaching the highway. They cite three cases in support of their contention that plaintiff was guilty of negligence as a matter of law. That argument is sound but is not relevant here, for we are concerned only with the trial court’s ruling that defendants were negligent as a matter of law.

In granting the plaintiff a new trial on that ground, the trial court filed a memorandum, saying:

“1. The evidence showed defendants were negligent as a matter of law in violating their common law and statutory duty to yield the right-of-way when the operator of the grader approached and entered the highway from a private drive from the south. The operator of the grader drove seventy-five or one hundred feet toward the highway after setting his grader blade at a speed of one mile per hour and never looked to the west to see if there were any vehicles approaching on the highway from the west. His failure to look before coming onto the traveled portion of the highway was a violation of both his common law and statutory duty, and constituted negligence as a matter of law. Major v Davenport [Mo.App.], 306 S.W. (2d) 626; Douglas v. Whitledge [Mo.App.], 302 S.W. (2d) 294, Roux v Petters [Pettus] [Mo.App.], 293 S.W. (2d) 144. The operator had an unobstructed view from mile to one mile and at the rate of speed of one or two miles per hour he could have stopped before reaching the point of collision; the operator stated that he did not see the plaintiff’s car until the impact. It was error for the court to submit defendant’s counterclaim on primary negligence because defendant’s claim was barred, on such negligence, by the contributory negligence of the operator of the road grader.”

Of necessity, this finding of negligence of defendant Harold Parsons must be based on a breach of some duty owed by the defendant to the plaintiff. We will examine the parties’ contentions as to that duty.

Defendants argue that because they were engaged in work upon the highway, they were under no duty to keep a lookout for plaintiff’s approaching automobile, They cite cases holding that an injured workman afoot on the highway was not contributorily negligent in failing to see the approaching automobile that struck him. These cases are not in point, because they deal with the duty of a pedestrian rather than the duty of a motorist. That duty is imposed by § 304.010 RSMo 1959, V.A.M.S., which requires every person operating a motor vehicle on a highzvay to use the highr est degree of care. Other courts have declined to except road machinery from this duty (see 60 C.J.S. Motor Vehicles § 371, p. 925), and we find no authority to do so.

Most of the argument of each party is pointed to the factual issue of whether defendant Harold Parsons drove the grader onto the paved portion of the highway, or whether the collision occurred just short of that line. Viewing the evidence in a light favorable to defendants, the jury could have believed: that the right-hand wheels of plaintiff’s car were moving along the very edge of the pavement, and that the overhang of his car extended somewhat beyond that line; and that the front edge of the grader’s tires reached but did not extend beyond the edge of the pavement. This factual issue would be material only if it affected the duty owed by the defendants to the plaintiff.

The duty of a motorist to use the highest degree of care is not limited to the paved portion of a highway, but extends to the shoulder of the highway. This issue was ruled in Eoff v. Senter, Mo.App., 317 S.W.2d 666 [7-8], the court saying:

“* * * We find no evidence that at the time plaintiff was struck defendant was operating the motor vehicle on the privately owned parking lot of the aircraft company. At that time the automobile was either on Banshee Road, a public drive, or on the shoulder, some IS feet from the traveled portion of the road. * * * From this evidence we conclude that defendant was operating his automobile upon a ‘highway’ traveled by the public within the meaning of § 304.010, supra, and not upon private property. * * *”

And, in the case of Bush v. Kansas City Public Service Co., 350 Mo. 876, 169 S.W.2d 331 [7], where the issue was the care required of a bus driver standing on private property just off a public street, the court said:

“ * * * It certainly would be a strained construction of the statute, § 8383, R.S.Mo.1939, Mo.R.S.A. § 8383 [now § 304.010 RSMo 1959, V.A.M.S.], to say that under such circumstances the operator of appellant’s bus was required to exercise only ordinary care. Since the bus was at the street line and the operator intended to drive it upon a public street we rule that he was bound to exercise the highest degree of care to discover traffic upon the street and that such care is required by the statute, supra. * * ”

Applying these opinions to our case, we hold that from the moment the grader left the private driveway he was “on the highway” and owed plaintiff the duty to operate the grader with the highest degree of care as required by § 304.010 RSMo 1959, V.A.M.S. This included the duty to keep a vigilant lookout for automobiles using the highway. Patton v. Hanson, Mo., 286 S.W.2d 829 (1). These same principles compel us to hold that defendants owed plaintiff a duty to use the highest degree of care to yield the right-of-way required by § 304.021, subd. 5, RSMo 1959, V.A.M.S., which says: “The driver of a vehicle about to enter or cross a highway from an alley or any private road or driveway shall yield the right of way to all vehicles approaching on said road or highway.” And, this duty exists independently of the statute. Wheeler v. Breeding, Mo.App., 109 S.W.2d 1237 (2).

We have thus determined defendants’ duty to plaintiff, and noted that he admittedly failed to look before and after entering the highway, during which time the plaintiff approached the. point of collision in full view. This leads us to the ultimate issue: whether the defendant grader driver was thereby so contribu-torily negligent as a matter of law that the trial court did err in submitting defendant Gordon Parsons’ counterclaim to the jury.

We believe the cases cited in the trial court’s memorandum, supra, fully support the conclusion therein reached. The general rule is stated in Roux v. Pettus, Mo.App., 293 S.W.2d 144 [2]: “A failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible, constitutes negligence as a matter of law. [Citing cases.]” This was followed in Douglas v. Whitledge, Mo.App., 302 S.W.2d 294 [1], And, in the cited case of Major v. Davenport, Mo.App., 306 S.W.2d 626, 1.c. 630, this court said:

“ * * * These facts leave no room for doubt that, had plaintiff maintained a proper lookout, she could have seen defendant’s truck within such distance and traveling at such speed as reasonably to indicate immediate danger of collision.
“Plaintiff, as she approached the intersection, was under a duty to watch for traffic approaching from the south and to see what was plainly visible. Failure to do so constituted negligence as a matter of law. [Citing cases.]
* * *»

The later case of Payne v. Smith, Mo., 322 S.W.2d 764 [3], concerned a motorist who parked off the paved portion of a highway. The Supreme Court said:

“After seeing respondent’s Chevrolet 200 yards away, appellant next saw it IS feet from the point of impact. He never estimated its speed. He did not watch respondent’s approach on the through highway but watched Walker’s car on the shoulder. * * * We consider appellant contributorily negligent as a matter of law. [Citing cases.]”

Because defendant Harold Parsons should have looked but did not, and by looking he could have seen, we judge his conduct just as if he had actually seen the plaintiff approaching and, nonetheless, drove the grader directly into the plaintiff’s path. Applying the above decisions to these facts, we hold that Harold Parsons was contributorily negligent as a matter of law, and that the trial court correctly found it had erred in submitting defendant Gordon Parsons’ counterclaim to the jury.

This conclusion leads to the question of-what disposition we should make on this appeal; namely, whether to reverse outright the original judgment in favor of defendant Gordon Parsons on his counterclaim, or to affirm the order granting him a new trial. We note that the trial court’s memorandum says it erred in submitting the counterclaim to the jury. Still, the trial court denied plaintiff’s after-trial motion for judgment in accordance with his motions for a directed verdict, and the trial court granted plaintiff’s motion for a new trial. The plaintiff did not appeal, so this court is limited to approving or disapproving the order granting the new trial. Mullen v. Lowden, 344 Mo. 40, 124 S.W.2d 1152 [8]; Reifeiss v. Barnes, Mo.App., 192 S.W.2d 427 [4]; Hovey v. Grier, 324 Mo. 634, 23 S.W.2d 1058 [2], Because we have determined that the trial court’s order was justified, the case should be reversed and remanded for a new trial.

But the new trial should be limited to the defendants’ counterclaim. We hold that the verdict and judgment against the plaintiff on his petition is final and should not be retried upon remand. That part of the judgment was not challenged by plaintiff in his after-trial motion; he did not appeal thereafter; nor does he raise any substantial point on that issue here. At 5B C.J.S. Appeal and Error § 1935, it is said: “ * * * an appellate court, on remanding a cause, may in its discretion either grant a complete new trial or restrict or limit the purpose of the proceedings or the issues to be tried in the lower court, according to which course is demanded by the circumstances of the ends of justice. * * * ” More specifically, Civil Rule 83.13(c), V.A.M.R., provides that “no new trial shall be ordered as to issues in which no error appears.” We see no error in the verdict and judgment against the plaintiff on his petition, and a retrial of that issue is neither necessary nor justified. Compare Slaughter v. Myers, Mo., 335 S.W.2d 50 [8]; and Hertel Electric Co. v. Gabriel, Mo.App., 292 S.W.2d 95 [17].

Accordingly, the order granting a new trial is affirmed, and the cause is remanded for a new trial on the counterclaim of defendant Gordon Parsons; and the judgment against the plaintiff on his petition should be held in abeyance pending disposition of the issues of the counterclaim, at which time one final judgment should be entered disposing of the rights of all parties.

ANDERSON, Acting P. J., and RUDDY, J., concur.

ON MOTION FOR REHEARING

PER CURIAM:

Defendants’ motion for rehearing was received by our clerk on the seventeenth day after our opinion was handed down. It may have been mailed by defendants before that day, but mailing does not constitute filing. This, because a motion is “filed” when it is delivered to the proper officer and lodged in his office. Byers v. Zuspann, Mo.App., 257 S.W.2d 384 [2]; Tabb v. McGinley, Mo.App., 313 S.W.2d 745 [1]. Civil Rule 83.16, V.A.M.R., is cast in mandatory language. It declares that a motion for rehearing “must be filed within fifteen days after the opinion of the court shall be filed.” Neither counsel nor this court is at liberty to overlook that limitation. Hood v. M.F.A. Mutual Ins. Co., Mo.App., 379 S.W.2d 806 [13]. The defendants’ purported motion for rehearing should be ordered stricken.

However, in view of the vigor of defendants’ challenge of our opinion, we have examined it ex gratia and add the following comments. The defendants’ main contention is that our statement of facts says that their grader was still in motion when the two vehicles collided. That was the only direct evidence, but it came from plaintiff’s witness. The defendants’ evidence would support an inference that their grader had just come to a stop when the vehicles collided. We have modified our opinion accordingly by deleting from page 615 the words “was still in motion” and substituting therefor the words “had just come to a stop.” We have reconsidered our opinion in the light of the altered statement of fact without reaching a different result. The crucial issue was the failure of the driver of defendants’ grader to keep a lookout for plaintiff; and our finding that he was contributorily negligent as a matter of law is not altered by the challenged fact. So, if permitted to review defendants’ motion for rehearing on its merits, we would overrule it; but since it was not filed within the permitted time, our order is that the motion be stricken and that our opinion be modified.


author: BROADDUS, Special Commissioner.

text:
    Kenneth Andrew PAYNE, Plaintiff-Appellant, v. Josephine Ann PAYNE, Defendant-Respondent.
    No. 24256.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.

      Skelton & Bradley, Lexington, for appellant.
    D. W. Sherman, Jr., Lexington, for respondent.
   BROADDUS, Special Commissioner.

Plaintiff-Appellant filed his petition for divorce alleging general indignities and also that defendant had committed adultery. An Answer and Cross-Bill were filed by defendant. The Answer denied the allegations contained in plaintiff’s petition and the Cross-Bill alleged various acts constituting general indignities. The trial court found plaintiff to have been the innocent and injured party and granted him a decree of divorce. Defendant was granted the care, custody and control of their minor children with reasonable visitation rights to plaintiff. This appeal was taken by the plaintiff on the issue of child custody only.

The parties were married on August 7, 1953, and lived together until their separation on January 26, 1964. There were two children born of the marriage, a boy on October 5, 1955, and a girl on August 25, 1956.

The plaintiff has had custody of the children since February 12, 1964, following the separation. Plaintiff, after the divorce, moved in with his sister, and not counting himself and the children, five people lived there. Later, he moved to his mother’s home where eight people lived, and, later,' moved again. A twenty year old sister was taking care of the children at the time of the trial.

Defendant testified that, at the time of the trial, she was living with her father and mother at Napoleon, Missouri; that her parents’ home is a two story four bedroom, fully modern home, and is located about one-half block from the public school; that she loves her children and wanted custody of them; that she was not then employed, and that, at the times she has had custody of the children since the separation, they have attended Sunday School. She told the Court that, in the event she was granted custody of the children, her plan was that she and the children would live in the home of her parents.

Mr. David H. Wolf, defendant’s father, testified that he was 64 years of age and a retired Government employee; that he lived in Napoleon and in his own home since 1935; that if the Court awarded defendant custody of the children they would be “absolutely” welcome in his four bedroom home; - that the children were frequently in his home prior to and during the separation. Mr. Wolf further said that he had been in defendant’s home frequently; that the children were well kept and defendant was a good mother. He further told the Court that his 41 year old retarded son was not, in any way, dangerous to the children.

Mrs. Anna Wolf, mother of defendant, testified 'that defendant had been living in her and her husband’s home for the past few months, and, before the separation, she took care of the children a lot while defendant worked; that she cared for the children not only in her own home but also in the home of plaintiff and defendant;' that defendant showed a natural mother’s love for the children, took good care of them; that they were clean and well fed. Mrs. Wolf further told the Court that plaintiff never made any complaint relative to the children when she cared for them.

Mrs. Wolf is employed at the Napoleon School, located one-half block from her home. She leaves for work at 8:30 a. m. and returns home at 2:00 o’clock in the afternoon. She testified that this would be the same school the children would attend; that they would go to school at the same time she did, and she would be home when school was out in the afternoon. Mrs. Wolf further testified that the children have gone to Sunday School with their mother when she had them on her weekends.

Plaintiff argues with much force that the court erred in awarding the custody of the children to defendant. He says that the evidence shows her unfitness to have the care and control of these minor children. It is true that some of the testimony, although denied by defendant, is very damaging to her. On the other hand, it appears that plaintiff, by his own admission, had been dating two different women since the separation.

“The fact that either party prevails in a divorce case is not the determining factor in awarding the custody of the children involved. * * * The determinative factor in awarding custody [of the children] is the welfare of the child. * * It is quite naturally considered that very young children and particularly girls should be in the custody of their mother unless she is demonstrably unfit to assume their proper care.” McKenzie v. McKenzie, 306 S.W.2d 588, 591, Mo.App.

In the case of Paxton v. Paxton, Mo.App., 319 S.W.2d 280, this court reviewed very thoroughly the law relating to the custody of minor children. We there said: “Courts have said, at various times, that, all things being equal, custody should be granted to the mother, especially as to very young children, and as to girls.” Further, “[a]ll things being equal, the courts are the more inclined to feel that the proper place for minor children is with the mother * *

Prior to the separation on January 27, 1964, these children have been under the care of their mother. She attended all the school conferences with the teachers and the P.T.A. meetings. The record does not show anything but love and affection on the' part of defendant for the children.

In the Paxton case we said that custody of a child is neither to be given as a reward to one parent, nor yet is it to be withheld as a punishment to the other parent. We further said that in groping for the proper answer as to what is best for the child these ultimate questions must be considered:

“What kind of home life would the mother provide, and what kind can the father provide and continue to work?” The record shows that at the time of the trial defendant was living in a modern home and was not employed. She would be present with the children when they were not in school.

“How old are the children and who has' actually, week by week reared them during the first years of their lives ?” The children are now ten and nine years of age. Throughout the nine and eight year periods, prior to the separation, the mother had the opportunity and actually reared the children.

There are many decisions which hold that what is for the best interest and welfare of the children is within the sound discretion of the trial court. McKittrick v. McKittrick, 227 Mo.App. 1002, 60 S.W.2d 671; Ramos v. Ramos, Mo.App., 232 S.W.2d 188. Under these decisions we are not authorized to disturb the decree of the trial court in this respect, unless there is present a clear abuse of such discretion. And this we do not find in the record before us.

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court and the judgment is affirmed.

All concur.