author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. Richard Lee FIELDS, Appellant.
    No. 48970.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.

      R. B. Kirwan, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., O. Hampton Stevens, Special Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

Richard Lee Fields was convicted and sentenced to imprisonment for a term of three years for the felony of attempting to obtain money by trick, false and fraudulent representations, statements and pretenses by means and use of “the confidence game.” See Section 561.450, RSMo 1959 and V.A.M.S. (to which revision all references to statutes apply, unless otherwise expressly noted).

The transcript on appeal is irregular and confusing. In the first place, it should not have included (as it does, and this at public expense) a copy of the Magistrate’s transcript which sets out such matters (wholly immaterial and irrelevant to any issue even sought to be presented on this appeal) as the original complaint, the warrant for the arrest of appellant and the return of the arresting officer thereon, the “commitment for trial” and “Summary of Costs in Magistrate Court.” Conversely, a copy of the information was not included in the transcript filed here, but on the state’s motion that deficiency (and another) was corrected by supplemental transcript. The latter shows that Clarence Rufus Putnam and James David Marsh were joined with Fields as co-defendants, so that all three were jointly charged with the commission of the offense. The trial about to be reviewed was probably a joint trial of all such defendants, but that fact does not appear from the transcript beyond peradventure. There are recitals (and omissions) in the record from which a contrary inference might easily be drawn. If it was a joint trial, the resulting disposition of the case as to Putnam and Marsh is not shown, but this is of no consequence since Fields alone prosecutes this appeal.

Defendant was represented by counsel in the circuit court, and in the absence of a brief on his part we look to his motion for a new trial for his assignments of error, and consider such of them as are sufficient under Rule 27.20(a) to present anything for appellate review, and disregard (without comment) those palpably insufficient. Among others is a challenge of the sufficiency of the evidence to support the verdict, and for this reason we state the facts in some detail. The state’s evidence tended substantially to show the following state of facts:

On the morning of Friday, January 13, 1961, Fields made an unsolicited appearance at the door of the Peters home at 3510 Gladstone Boulevard in Kansas City. He was accompanied by Putnam and Marsh. Fields informed Mrs. Edith Lowe Peters (79 years of age) that they were inspecting for termites, and wanted to check the house. She told him “we had had that taken care of” (five or six years previously), but she didn’t know what company it was. He replied that “they would check and if they had a contract they would come back.” He returned the next morning and “said they had had the contract, they would like to check and see how things were, the conditions were, to see if there were any termites. They would take care of it because they had the contract.” Upon this representation (which was false) she admitted and accompanied them to the basement so they could check and examine it for termites. After having done so (or having pretended to do so), “they said the termites were in the corner of the garage” (which was connected with' the house), and stating further, “We will take care of that because we have a contract on it.” One of the men (whom we understand was Fields), after going around the basement “almost to the door coming out,” and pretending to make the discovery, stated to her, “Oh, there are beetles. You have beetles, they ought to be taken care of. I can’t use the termite spray on that, but it won’t be expensive. It is only $12.50 a pound. I will give you a five-year contract on it.” After displaying to Mrs.Peters what he represented, to be termites which he had found, and after pointing out what he claimed to be beetle damage, Fields “wanted to back his car (equipped with a fogging machine and air compressor) right into the garage,” so he could have his tools to go ahead with the spray. Mrs. Peters then told him, “All right” (but reproving herself on the witness stand for not having asked how much the cost would be). She stayed downstairs for a few minutes, but the odor became “pretty bad,” and she went on upstairs, saying “When you get through, I presume you will send me a statement. I will mail you a check.” He replied, “Oh, no, we want the cash when we get through.” She later described the odor as being “terrible * * * it stayed in the house practically a week before it cleared out.”

Not more than half an hour after the car had been backed into the garage, Putnam came upstairs into the dining room with Mrs. Peters, sat down at the table with her, and said, “We are through * * * I will make out the contract for the beetles and the charge.” He made it out and she signed it. The bill was $374.80. She said, “That is more than I expected. I can’t take care of that to-day.” She offered him a check for $100, reminding him it was Saturday, and the banks weren’t open. “Oh,” he said, “I had forgotten about that. Why can’t you give me the check for the whole thing, and I won’t deposit it until Monday.” She said, “No, I will give you a check for $100,” and she made out and delivered the $100 check (payable to James Marsh), and he handed her the instrument identified at the trial as “State’s Exhibit 1,” reading as follows:

“GOLDEN SPREAD TERMITE AND PEST CONTROL SURETY BONDED CONTRACT
“The Golden Spread Termite and Pest Control contracts to check property each year at no cost the building (or buildings) described below for the sum of 374.80 dollars to be paid in full upon completion of work.
“This contract carries the guarantee that all work will be satisfactory.
“The guarantee will be in effect for 5 years for beetles from date work is completed.
“Renewable at: the end of five years.
“GOLDEN SPREAD TERMITE & PEST CONTROL
“By James Marsh
“Accepted by Mrs. H. H. Peters
“Street Number 35 10 Gladstone City K. C, Mo.
“Date 1-14-61 Description of building to be 466 dwelling home.
“Repairs Retreated for termites and treated for beettles
“Paid $100.00 Balance Due $274.00”

Putnam then left, and as the other two were waiting for him in the garage, Mrs. Peters went to the telephone book “to check this Golden Spread Termite & Pest Control Company,” but she found no such company listed, nor even the name of James Marsh. Whereupon she realized something was wrong. The men returned Monday morning to collect the balance of the money she had agreed to pay, but Mrs. Peters was then at the Better Business Bureau complaining of the transaction, and in the meantime she had stopped payment on her check. They returned again early the following (Tuesday) morning “and wanted their money,” but Mrs. Peters told them to return at 2 o'clock that afternoon. By prearrangement with a police sergeant, he was present when the trio returned that afternoon to collect the remaining $274.00 balance due under the “contract.” They were taken into custody at that time, and subsequently charged.

The state called as a witness Chappie Clark, an employe of Orkin Exterminating Company, a national concern. He had had extensive experience in Kansas City in powder post beetle and termite control work, and qualified as an expert in that field. From his testimony it appears that activity of powder post beetles, and their consequent damage, is indicated by sawdust or a residue around their holes. “They make an emergence hole in the wood * * * a very fine sawdust silts down out of these holes.” High pressure spraying and fumigation are the two recognized methods of control. Only the former is utilized in the Kansas City area. It involves the application under pressure of an oil-base chemical to the point of runoff, this by means of a pressure tank. The fumigation method can be, but it is not used in the area in question. Under the latter method, the building to be treated must be either completely covered (as by tarpaulins) or else all apertures (windows, doors, and other openings that would allow the gas to escape) must be sealed up with masking tape or a grease substance. Both methods require a prior thorough inspection of “all wooden members in the building, such as the floor joists, flooring, window sills, door casements, any wooden parts of the building,” from which inspection one is enabled “to recognize damage done by powder post beetles, also subterranean termites.” The Peters basement was a closed basement with a closed plaster ceiling. In order to have made even a proper inspection of that basement for powder post beetles, it would have been necessary “to remove the plaster ceilings,” and “it would be necessary to remove these ceilings in order to properly treat the sub-flooring.” This the defendants did not do, as was disclosed by an inspection of the premises made by the witness on January 18, just four days after defendants had been there. Such inspection was made at the request of the police, and embraced not only the basement area, but the connected garage as well, and extended to both powder post beetle and termite activity and damage.

According to the further testimony of this witness, someone had attempted some kind of recent treatment in the basement. “Some” small holes had been knocked out in the ceiling, and these were the only areas that were visible for inspection. The witness found no visible evidence of beetle activity. There had been in some of the subflooring, but this had obviously occurred prior to the time it was installed in the building (as indicated by saw marks exposing powder post beetle holes running vertically in the food with sawdust deposits still remaining, whereas if done after being installed in the building, only the round emergence holes would have been detectable). The subflooring was covered with a hard wood (preferred by beetles because it contains more cellulose than the soft wood), but there was no evidence that the hardwood flooring had been attacked by any powder post beetles at any time. There was present an odor of some chemical similar to that of pentachlorophenol (a wood preservative). The latter chemical is not used for powder post beetles, but is commonly used in the control of subterranean termites. It could not be determined how much had been applied, but possibly to the saturation point in those small areas in the ceiling that were open. So much for the basement.

As stated, the witness also inspected the garage. There he found signs only of former termite activity, and that was confined to one door casement, hut there was no such activity present at the time of his inspection. It was exclusively in this one area that there was any sign or indication of any recent treatment for termites. It was there that the witness found there had been poured onto the door casement itself an oil-base chemical of some kind. The inspection was made in January, and the witness stated that normally termites are not active at that time of year.

The witness gave it as his opinion that the work, as he observed it, had not been done in a workmanlike manner, this because the ceilings in the basement were closed and for that reason there was no possible method of properly treating the unexposed areas, and because it would have taken approximately 8 to 12 hours for three men to properly treat the basement for powder post beetles, and that it would have taken three men approximately three days to treat the house for both powder post beetles and subterranean termites.

In concluding his direct examination, the state propounded the following question, and the witness was permitted to answer (over the objection of defendant), as follows :

“Q Mr. Clark, assuming that three men went into that house there in the basement and in the garage and spent from 30 minutes to an hour there and rendered a bill for their services for $374.80, do you have an opinion as to whether or not that would be a fair charge?

“MR. COSTELLO: I object to that, Your Honor, as being not an issue in here at all, immaterial, improper, doesn’t prove any issue in this case.

“THE COURT: Overruled.

“Q (By Mr. Kennett) Do you have an opinion ?

“A Yes, sir, I have an opinion.

“Q What is that, sir?

“A That it could not, the service could not have been rendered in that period of time for that amount of money.”

The witness further stated that a fogging machine is electrically operated and is used “merely to apply chemical in void areas or other types of insects such as silver fish and crawling insects.”

The arresting officer testified that Fields said he was the owner of the Golden Spread Pest Control Company, but that it did not have an occupation license in Kansas City; that its home office was in a house trailer in St. Charles, Missouri; that he was the sole owner of another company, Eagle, and had an occupation license under that name (Eagle’s license was actually under the name of one Griffin, a relative) ; that he had used a pressure spray and fogging machine “out there in Mrs. Peters’ home”; that he had used a gallon of chlorophenol in the fogging machine; that this chemical costs $2.75 a gallon, and they mixed it with ten parts of diesel fuel, the latter costing 22 cents a gallon. When asked how he arrived at the charge of $374.80 for the job, he could give no reason for using that figure; that he normally charged 22 cents per square foot, but he had no idea what the square foot area of the basement would be; that he had only a third grade education, and didn’t know what it would come to; that they worked there at least an hour.

The arresting officer further testified that Putnam stated the name of Marsh was already on the contract when Fields gave it to him for delivery to Mrs. Peters, and that Fields told him to make it out for $374.80. Marsh, who was a brother-in-law of Fields, told the arresting officer that he stated to Fields at the time the $374.80 figure came up that he felt it was entirely too much to charge this lady. None of the three • admitted signing the name “James Marsh” to the contract.

In essence, Fields’ defense (if such it can be called) was that the job had not been completed, and this was weakly supported only by his bare statement and that of Marsh that their supply of chemicals had run out during the course of the work on Saturday morning. Nothing of the kind was even intimated to Mrs. Peters, or to the arresting officer, nor, for aught that appears, until the trial. And even if true, there was still no explanation of why collection was attempted to be effected before completion of the work, nor of Putnam’s positive representation that they were through when he obtained Mrs. Peters’ signature to the contract and check. Moreover, Mrs. Peters denied that they offered to do anything further in the way of work the several times they returned to collect the excess over the $100 already paid by her by check. Too, the man she had known as Marsh throughout her negotiations in connection with the work turned out at the trial to be Putnam.

All of the defendants were more or less itinerants. Fields, by his own admission, had been convicted and served a term in Algoa Reformatory for car theft. Putnam had been convicted in Indiana for assault and battery and served, as he admitted, a six months’ sentence therefor. In view of the nature of the points presented for review, it would serve no useful purpose to detail the evidence on the part of the defendants, nor pause to point out the numerous weaknesses and glaring inconsistencies therein.

Section 561.450, under which defendant was charged, provides in pertinent part:

“Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game,’ * * * shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years.”

The essence of the crime thus denounced is that the injured party must have relied upon some false or deceitful pretense or device and parted with his property. State v. Wilson, 223 Mo. 156, 166, 122 S.W. 701, 704. “A confidence game, within the meaning of statutes directed against it, is any scheme whereby a swindler wins the confidence of his victim and, by taking advantage of such confidence, swindles him out of his money or property. The confidence must be won by a trick, device, false representation, or swindling operation, and the property must be obtained by a betrayal of the confidence won. * * * The term ‘confidence game’ cannot easily be defined so as to cover all the cases falling within it, since schemes devised for the swindling of others ‘are as various as the mind of man is suggestive;’ the term has a relative and variable meaning, each case depending on its peculiar circumstances.” 35 C.J.S. False Pretenses § 32. And see State v. Weber, (Mo.) 298 S.W.2d 403.

Under the evidence the jury could have reasonably found that Fields obtained Mrs. Peters’ permission to enter her premises and inspect for termites under the false representation that he was doing so under her original and then outstanding termite control contract with him; then by falsely representing the presence of powder post beetle activity and damage, led her to believe it was necessary to treat her basement for them, and thereby induced her to permit him to proceed ostensibly with the work of extermination, and by pretending so to do, and by representing the operation would not be expensive, tricked her into signing the “contract” whereby she agreed to pay him $374.80 for a half an hour’s time of three men and virtually no chemicals without receiving any benefit therefrom. The form of the so-called “contract” is patently fraudulent. The use of it, coupled with the false representations and pretenses just outlined, and the attempted extortion of a wholly unconscionable sum of money for a worthless work product properly characterizes the activities of Fields and his associates as a swindling operation by means of “the confidence game.” We hold the evidence amply supports the verdict, and that the court did not err in refusing to direct a verdict of acquittal.

The motion for new trial makes complaint against the state’s main or verdict-directing instruction, being No. 2, but here again most of the matters sought to be asserted are not reviewable because of want of specificity.

One complaint is that it requires a finding “that the defendants did proceed with the treatment for termites and did exterminate the termites and in the next line requires the triers of the facts to find there were no termites present.” The offending language (which we have italicized) immediately follows the hypothesization of the matters and things relied on as constituting “the confidence game” (the holding out and pretending that the premises were badly infested with termites and powder post beetles, and in need of immediate attention, etc.), and proceeds as follows: “ * * * and that the said Edith Lowe Peters being deceived thereby and relying upon the aforesaid trick, false and fraudulent statements, pretenses and confidence game, did allow the said defendants to proceed with the treatment and destruction of the said termites and powder post beetles, if you so find, [and] that said defendants knew that the aforesaid premises were not infested with termites and powder post beetles, if you so find, then you will find the defendants guilty of Confidence Game and so find in your verdict.”

The sentence is awkwardly worded. It is grossly inept in its attempt to submit the element of treatment and destruction of both termites and beetles as being merely ostensible (as distinguished from real or bona fide), but even so, we think its sense and meaning is clear enough upon a reading of the whole sentence, and that the jury would not have been misled or confused by the omission to use a more apt term qualifying the kind or type of treatment and destruction (such as “supposed,” “pretended,” or words of similar import). We do not regard the instruction as constituting a comment on the evidence, as charged, nor that it was “so confusing that the triers of the fact could not possibly have applied it as a statement of the law to the evidence introduced.”

The motion for new trial assails the form and sufficiency of the verdict as not sufficiently identifying the “crime and overt act the jury found the defendants guilty of committing.” The verdict reads as follows:

“We, the jury, find the defendant, Richard Lee Fields, guilty of Confidence Game and assess his punishment at three years in the State Penitentiary.

(Signed) Charles A. Scott,

Foreman.”

It must be conceded that this, too, is needlessly awkward and inaccurate phraseology. Section 561.450 does not denominate “the confidence game” as a separate, substantive crime, such, for example, as burglary, stealing, robbery, etc., and it is a misnomer to so designate it. It is rather a means or method specifically enjoined by the statute in carrying out the prohibited obtention of money or property, or the attempt so to do, by trick, deception, or false pretenses. Here the defendant was charged with attempting to obtain money by trick, false pretenses, etc., by means of the confidence game. It would have comported more with recognized legal forms and proper procedure for the verdict to have expressly so found, e. g., “We, the jury, find the defendant, Richard Lee Fields, guilty of attempting to obtain money by false pretenses by means or use of ‘the confidence game.’ ” Even so, we deem the verdict sufficient under the following rule: “A verdict is not tested by technical rules of ■construction. If its meaning is clear upon the record (the charge, the evidence and the instructions), it is not void for uncertainty. State v. Smith, 284 Mo. 168, 172, 223 S.W. 749, 750; State v. Villinger, Mo., 237 S.W.2d 132, 134 [6, 7], and cases cited.” State v. Russell, (Mo.) 265 S.W. 2d 379, 382. It appears that the faulty wording of the verdict was perhaps influenced by local practice in so designating the offense. Indeed, starting with proceedings in the Magistrate Court, we find ■several recitals in the record solemnly alleging or finding that defendant did “then .and there unlawfully Confidence Game.” This is no excuse for perpetuating grotesque and distorted nomenclature which is so inaccurate as to be confusing, if not practically meaningless. It is easy enough to conform to recognized standards.

We have examined the other portions of the record, as is our duty under Rule 28.02, and find no reversible error in it. The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Kenneth R. BAER, Respondent, v. CITY OF BROOKFIELD, Missouri, and State Automobile and Casualty Underwriters, Appellants.
    No. 23741.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Chapman & Chapman, by Nolan Chapman, Jr., Chillicothe, for appellants.
    Stephen J. Millett, Kingston, Knipmeyer, McCann & Millett, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is a workmen’s compensation case. The facts are not really in dispute. The disagreement arises from the amount of the award.

It is admitted that on November 22, 1959, the City of Brookfield, Missouri, was an employer, operating under the Missouri Workmen’s Compensation Law, was fully insured by the State Automobile and Casualty Underwriters of Des Moines, Iowa; that on said date plaintiff Kenneth R. Baer sustained injuries by accident arising out of and in the course of his employment as a volunteer fireman, and that notice and claim had been duly filed.

Claimant was the owner and operator of an auto supply company in Brookfield and also served as a volunteer fireman on the Brookfield fire department. On November 22, 1959, and while “fighting a fire” claimant was injured when a wall collapsed and struck him. He suffered shock, severe lacerations of the left side of his face, resulting in disfigurement, a fracture of the left jaw, multiple fractures of both bones of the forearm, and fractures of the left tibia. There is no contention that the injuries were insufficient to justify the award. His compensation from the city for his services as a volunteer fireman was $4 for each fire in the daytime and $6 for each nighttime fire. For the year preceding the accident he received $238 and was in attendance at 51 fires.

The referee found for claimant. On appeal the Industrial Commission likewise found for Mr. Baer. The final award allowed: (1) Permanent partial disability of 50 percent of the body as a whole, amounting to $17.96 per week for 200 weeks and (2) additional permanent partial disability for the loss of “eight cutting teeth and four molars” an additional 20 weeks, and (3) for “serious permanent mutilation and disfigurement about the face and head in the sum of $1600.00).” The circuit court affirmed the award.

Appellants City of Brookfield and the insurer have appealed to this court. Their Points 1, 2, 3, 5 and 7 are statements of legal conclusions which largely declare the scope of review in such a case. We are in general accord with such expressed legal conclusions: (1) That the reviewing court is to decide if the commission could have reasonably made its findings under the evidence; (2) Conclusions of law arrived at are reviewable; (3) Interpretations of a statute are not conclusive on appeal; (5) Where the facts are undisputed and the ultimate question is one of law, the commission’s findings are not conclusive, and (7) The appellate court may in a proper case modify, reverse, remand or set aside a final commission award.

However, it is also true that “The language used in the act and all reasonable implications therefrom shall be liberally construed to effectuate its purpose, and all doubts resolved in favor of the employee.” Dauster v. Star Mfg. Co. et al., Mo.App., 145 S.W.2d 499, 503; Dixon et al. v. Postlewait Glass Co. et al., 241 Mo.App. 174, 238 S.W.2d 93, 95, Section 287.800, V.A.M.S. ■“This rule is applicable to the question of the amount of compensation to be awarded, and in the computation of the wage base * * * » Dixon v. Postlewait Glass Co., supra.

In their assignment numbered 6, appellants say that when an employee suffers multiple injuries in a single accident, the percentage of disability should be by a single rating “of the whole body”, and that since the commission, in addition to a permanent partial rating “of the body as a whole”, allowed, in addition, 20 weeks for healing period and $1600 for disfigurement, such allowances were erroneous. Respondent asserts this issue was not presented to the commission or to the circuit court and cannot be raised for the first time on appeal. In this connection the final award recites: “We further note that at the oral argument held before the commission on February 15, 1962, employer and insurer stipulated that they were raising no question as to the extent of disfigurement, length of healing period, dental care or extent of permanent partial disability resulting from the loss of teeth”. In addition, Section 287.190(4) provides: “If an employee be seriously mutilated or permanently disfigured about the normally exposed parts of the body, the commission may allow such additional sum for the compensation on account thereof, as it may deem just, based upon the handicap suffered by the injured employee in obtaining employment, but such sum shall not exceed two thousand dollars.” On both grounds, that is, failure to present to the referee or the circuit court, and on the merits, we rule this point against appellants.

The main contention between the parties arises from the method used by the commission in determining claimant’s average weekly wage. Section 287.250, V.A.M.S. provides in part:

“The basis for computing the compensation provided for in this chapter shall be as follows:
“(1) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages, or earnings if in the employment of the same employer continuously during the year next preceding the injury;
“(2) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause;
“(3) If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location (or if that be impracticable, of neighboring employments of the same kind) have earned during such period:
“(4) As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as three hundred times the average daily earnings in such computation ;
“(5) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of three hundred as a basis for computing the annual earnings; provided, the minimum number of days which shall be so used for the basis of the year’s work shall be not less than two hundred.”

The commission determined the employee’s average weekly wage by applying sub-paragraph (4), that is, his total earnings for the year ($238) was divided by his total number of working days (51). The resultant figure of $4.67 was multiplied by 300 and that total ($1401) divided by 52 weeks, giving an average weekly wage of $26.94. Appellants contend that sub-paragraph (1) provides the proper method for such computation. If it were applied, the total earnings of $238 would be divided by 52 weeks, giving an average weekly wage of $4.58. In this event, the compensation payable would be the minimum of $16 per week as required under Section 287.190 instead of $17.96 (two-thirds of the average weekly wage) as awarded by the commission.

The commission cited Bicanic et al. v. Kroger Grocery & Baking Co. et al., Mo. App., 117 S.W.2d 650 and Coble v. Scullin Steel Co. et al., Mo.App., 54 S.W.2d 777, as authority for the use of Paragraph (4) in determining the average weekly wage. Both of these cases arose during the depression years of the ’30s. In each instance it was the custom and practice of the employer to operate on all working days of the year. The injured employee in each case was a regular long-time worker. However, because of a fall-off in business, probably brought about by the depression, the employers, in an effort to keep fromi laying off any employee completely, resorted to a system of staggered employment.. As a result, neither employee had worked' full time during the year preceding his injury. This was true even though the companies operated full time, but not with their usual full quota of employees. In the Coble-case (p. 778) the court said:

‘“(a) The compensation shall be computed on the basis of the annual earnings which the injured person received' as salary, wages, or earnings if in the employment of the same employer continuously during the year next preceding the injury. * * * ’
* * * * * *
“We think there can be no question that when an employee is constantly engaged in the work which he is employed to do during the working days-of the year preceding the accident or during such period of the year as the-business of the employer customarily operates, subject, of course, to the-provisions of paragraph (e), the provisions of paragraph (a) would prevail, because in that event his annual earnings would be determinable by the amount which he actually earned.
“The word ‘employment’ used in paragraph (a), read in conjunction with the provisions of paragraph (b), means more, we think, than the mere fact that one is recognized as under an engagement to work for a particular person. Employment as defined in Webster’s New International dictionary, 1927, is: ‘2. That which engages or occupies; that which consumes time or attention.’
“There can be no serious question, therefore, that the Legislature intended, by the use of the word ‘employment,’ to express not only that there existed between the parties the contract of employer and employee, but also the time that the employee, for the period mentioned, was occupied in the business of his employer. Therefore, if an employee should be injured during any period that he was occupied with the work of his employer, it was the intention of the Legislature that he should receive such amount as the statute specified for the particular injury based upon the compensation received by him for continuous occupation under paragraphs (a) and (b), or, if the circumstances should not permit of the application of paragraphs (a) and (b), then under the provisions of the subsequent paragraph, according to the circumstances of the particular case.”

The doctrine and views expressed in the Coble case were reiterated and approved by the court in the Bicanic opinion. It seems clear from these opinions and based upon a reasonable interpretation of the statute that computation under paragraph (1) is not applicable in our case. While employee was in the employ of employer continuously during the year, to the extent that he was subject to call if a fire occurred, he did not, because of lack of business, work constantly during the year. We must, therefore, look further into the statute to find the proper method of computation.

In the referee’s award, by Judge Ferd J. Frankenhoff, one of the listed disputes was described this way: “Dispute as to use of Section 287.250, sub-paragraph (1) or sub-paragraph (4) or sub-paragraph (5) for wage computation and rate of compensation”. Thereafter the commission and counsel in their briefs and arguments seem to have abandoned sub-paragraph (5) as being possibly the correct measuring rod.

Sub-paragraph (4) sets forth the basis for computation “As to employees in employments in which it is the custom to operate throughout the working days of the year * * In Coble and in Bicanic the employees were engaged in such employments although because of the stagger system they did not work all working days of the year. Hence paragraph (4) was applicable to their situation. But in our case the Brookfield Fire Department did not operate nor was it the custom to operate on all working days. It simply did not have enough business to justify or require full time operation. And although claimant was on call — day or night — it cannot reasonably be said, nor was there evidence showing, that he was engaged in an employment “in which it is the custom to operate throughout the working days of the year”.

We believe that the holding and the opinion of the Supreme Court in the recent case of Noland v. George Tatum Mercantile Co. et al., Mo., 313 S.W.2d 633, is pertinent to our case. There the employer was a general merchandising company which sold groceries, dry goods, lumber, hardware and appliances. A television set was sold which the company was required to install. In order to erect the antenna it was necessary to trim some tree branches. Claimant was employed to do this. His employment was part-time at the rate of $1.50 per hour. There was evidence that an extra employee, such as claimant, always was hired on the basis of an 8 hour day. Soon after starting to remove the tree limbs, claimant fell and was injured. The commission found the daily wage to be $12 and applied paragraph (4), that is, multiplying by 300 and then dividing by 52 to determine the average weekly wage. The Supreme Court modified this award by holding and directing that paragraph (5) be applied and said:

“We are of the opinion that employer and insurer are correct in their contention that there was no evidence from which the commission reasonably could have found that the annual earnings should be regarded as three hundred multiplied by the average daily earnings. On the contrary, the evidence was such that it supported as the only reasonable finding that annual earnings should be regarded as two hundred times the average daily earnings.
* * * * * *
“The fact, however, that employer operated its business throughout the working days of the year did not, standing alone, justify the commission in regarding the annual earnings as three hundred times the average daily earnings as provided in paragraph (4) of Section 287.250. That is because the particular employment in which Noland was engaged obviously was to operate for only a small part of the whole number of working days in each year. Biswell v. St. Louis-San Francisco R. Co., Mo.App., 49 S.W.2d 203(4), 204. There was no evidence supporting any other finding”.

We do not believe that there is any evidence reasonably authorizing a finding that the volunteer fireman Baer was engaged in an “employment in which it is the custom to operate throughout the working days of the year” as specified in paragraph (4). In the Coble and Bicanic cases the employment of claimant was, both actually and by custom, carried on full time, but the employees had only part-time work. It is obvious that the particular employment in which Baer was engaged (volunteer fireman for Brookfield) was to operate for only a small part of the working days of each year. This being so, such employment is encompassed by the phraseology of paragraph (5), viz. “as to employees in employments in which it is the custom to operate for a part of the whole number of working days * *

We are of the opinion that there was no evidence from which the commission could have reasonably found that the annual earnings should be regarded as 300, multiplied by the average daily earnings. On the contrary, the evidence was such that it supported as the only reasonable finding that annual earnings should be regarded as 200 times the average daily earnings.

The judgment of the circuit court should be modified by changing the amount of the award in accordance with this opinion, and as so modified, the judgment is affirmed. It is ordered therefore that this case be remanded to the circuit court with directions to remand to the Industrial Commission for the purpose of modifying the amount of the award in accordance with the views herein expressed and applying the provisions of paragraph (5), Section 287.250 and also considering the minimum weekly earnings allowable as provided by Section 287.190.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: STONE, Judge.

text:
    L. P. MOORE, Plaintiff-Appellant, v. William H. GLASGOW, Defendant-Respondent.
    No. 8135.
    Springfield Court of Appeals. Missouri.
    March 23, 1963.
    Motions for Rehearing or to Transfer Overruled April 18, 1963.

      Robert J. Sanders, Kansas City, Wm. Duke Hiett, Houston, for plaintiff-appellant.
    Strubinger & MacElhern, Kansas City, of counsel, for plaintiff-appellant.
    Hubert Lay, Houston, Green & Green, West Plains, for defendant-respondent.
   STONE, Judge.

In this damage suit for personal injuries claimed to have resulted from a vehicular collision about 5 :30 A.M. on September 27, 1958, on U. S. Highway 60 about three miles west of Cabool, Missouri, plaintiff had a jury verdict for $3,700 at the conclusion of the trial on February 23, 1962. On March 26, 1962, the court entered the following order on defendant’s timely motion for new trial: “Now on this day motion for new trial argued orally. Upon plaintiff filing remittitur of $1200 on or within 15 days from 3-26-62, motion for new trial shall stand overruled, otherwise-motion for new trial stands sustained and new trial granted defendant.” Having refused to make such remittitur, plaintiff perfected this appeal.

On June 4, 1962, plaintiff’s-appellant’s-counsel filed, with our clerk a “Statement Alleging Error Made Pursuant to the Provisions of Rule 83.06(b),” in which demand was made “that respondent (defendant) prepare the original brief” because (so plaintiff’s counsel asserted) “the trial court erred in omitting to specify the ground or grounds on which it granted a new trial.” See Rule 78.01; Section 510.-330. Counsel for defendant-respondent promptly took issue, contending that the above-quoted order “clearly indicated that the motion (for new trial) was sustained because the court thought the verdict excessive” [Connoley v. Beyer Crushed Rock Co., 355 Mo. 684, 689, 197 S.W.2d 653, 656(7)] and insisting that the burden of sustaining the order granting a new trial did not rest on respondent. With opposing counsel thus in open disagreement as to which party was obligated to prepare and serve the original brief, we treated plaintiff’s-appellant’s “Statement Alleging Error” as a motion and entered an order denying it. Regardless of whether (as plaintiff’s counsel subsequently has complained) we erred in so treating the “Statement Alleging Error,” our order thereon (which at least served the practical purpose of advising all interested counsel of our view that plaintiff-appellant remained under obligation to prepare and serve the original brief) did not impinge upon any substantial rights because, as will become apparent from our discussion, we remain of the opinion that the above-quoted order sufficiently specified simple excessiveness of the verdict as the ground on which the motion for new trial was sustained. Connoley, supra.

Still insisting that he should not have been required to file the original brief, the first point in plaintiff’s brief is that “the trial court erred in failing to specify the ground upon which it relied in purporting to grant defendant a new trial unless plaintiff file a remittitur.” Under this point, plaintiff cites numerous cases recognizing and applying the provisions of procedural rules adopted by our Supreme Court to the effect that, “(w)hen a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial * * * the burden of supporting such action is placed on the respondent,” and “it shall never be presumed that the new trial was granted on any discretionary grounds.” Rule 83.06, subds. (b) and (c). (All emphasis herein is ours.) Of course, we recognize that the quoted rule means exactly what it says, but its applicability in this (or, for that matter, in any other) case depends upon the italicized predicate, i. e., the grant of a new trial “without specifying of record the ground or grounds on which the new trial is granted.”

Rule 78.01 [Section 510.330] plainly directs that “(e)very order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted,” and Rule 83.06 spells out the procedural consequences of failure to comply with the quoted requirement of Rule 78.01. But, just how “specific” must be the statement of the ground in the trial court’s order remains, in some instances, a subject of inquiry and a source of difficulty. E. g., Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 669, 677. On the one hand, a general statement in the order that the motion for new trial is sustained for the giving of erroneous, misleading, confusing and prejudicial instructions [Newman v. St. Louis Public Service Co., Mo. App., 238 S.W.2d 43, 45(1), affirmed Mo. (banc), 244 S.W.2d 45, 46(1)] or for the admission of incompetent, irrelevant, immaterial, improper and prejudicial evidence [Goodman v. Allen Cab Co., 360 Mo. 1094, 1097, 232 S.W.2d 535, 537(1); Johnson v. Kansas City Public Service Co., 360 Mo. 429, 433, 228 S.W.2d 796, 797(1)] is not specific within the contemplation and meaning of Rules 78.01 and 83.06. The rationale of these holdings is that “(t)he ground stated is too general to furnish any information to the parties or to this (appellate) court concerning the real basis of the trial' court’s action.” Goodman, supra, 360 Mo. loc. cit. 1097, 232 S.W. loc. cit. 537.

On the other hand, our Supreme Court has pointed out that the purpose of the procedural provisions now embodied in Rule 78.01 [see Section 510.330 and former Supreme Court Rule 3.22] “is to clothe the trial judge, who enjoys the advantage of meeting the parties and witnesses face to face, with a wide discretion to be exercised in the furtherance of substantial justice” [Donati v. Gualdoni, 358 Mo. 667, 673, 216 S.W.2d 519, 522(10)], and that, in reviewing the action of the trial court in sustaining a motion for new trial, the ground stated in the order should be given “a broad and liberal construction.” Beer v. Martel, 332 Mo. 53, 60, 55 S.W.2d 482, 484(8); Donati, supra, 358 Mo. loc. cit. 673, 216 S.W.2d loc. cit. 521(7). Accordingly, in testing the-sufficiency of specification of the ground upon which a new trial has been granted, our Supreme Court has not hesitated to draw appropriate implications or assumptions from the language of the order. Donati, supra, 358 Mo. loc. cit. 673, 216 S.W.2d loc. cit. 521; Beer, supra, 332 Mo. loc. cit. 60, 55 S.W.2d loc. cit. 484. See also Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 320.

The order under scrutiny here, in which the trial court declared that, “upon plaintiff filing remittitur of $1200 * * * motion for new trial shall stand overruled, otherwise motion for new trial stands sustained,” clearly shows on its face that the court thought the verdict excessive. Connoley, supra, 355 Mo. loc. cit. 689, 197 S.W.2d loc. cit. 656. In this jurisdiction, excessive verdicts fall into two categories, to wit, (1) verdicts reflecting simple excessiveness, where the jury has made an honest mistake in weighing the evidence as to injury and in fixing the damages and has awarded a disproportionate sum under the rule of uniformity, and (2) verdicts reflecting exces-siveness by misconduct, where the result usually savors of bias and prejudice engendered during trial. Numerous Missouri cases recognize the vital distinction between the two categories of excessive verdicts and point out that simple excessiveness may be and usually should be cured by enforced remittitur, thus affording opportunity to avoid the delay and expense incident to retrial [Jones v. Pennsylvania R. Co., 353 Mo. 163, 171, 182 S.W.2d 157, 159(5); Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 1135, 219 S.W.2d 333, 340, 8 A. L.R.2d 710], but that excessiveness by misconduct vitiates the verdict in its entirety, cannot be cured by remittitur, and necessitates a new trial on all issues. Skadal v. Brown, Mo., 351 S.W.2d 684, 690(14); Walton v. United States Steel Corp., Mo., 362 S.W.2d 617, 627.

In the instant case the trial court obviously found simple excessiv'eness, for an order permitting a verdict to stand, as corrected by remittitur, “presupposes a verdict resultant of the jury’s unbiased, dispassionate and impartial consideration of the evidence.” Jones, supra, 353 Mo. loc. cit. 171, 182 S.W.2d loc. cit. 159; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 1148, 238 S.W.2d 674, 680. True, the order of the trial court might have been drawn in better form [compare Greco v. Hendricks, Mo., 327 S.W.2d 241, 242; Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 814-815, 230 S.W.2d 856, 857-858], and it would have been preferable for the court to have stated plainly and directly the ground on which the motion for new trial was sustained. Quinn, supra, 318 S.W.2d loc. cit. 323. Nevertheless, as the order comes to us, it may not be said to be “too general to furnish any information to the parties or to this court concerning the real basis of the trial court’s action.” Goodman, supra, 360 Mo. loc. cit. 1097, 232 S.W.2d loc. cit. 537. On the contrary, we think that the order clearly indicated that, if the required remittitur were not made, the motion for new trial would “stand sustained” for simple excessiveness of the verdict or, in other words, “because the court thought the verdict excessive; that is, the verdict was not supported by the evidence.” Connoley, supra, 355 Mo. loc. cit. 689, 197 S.W. 2d loc. cit. 656. It follows that we are of the opinion, and accordingly hold, that the order was, as to the ground on which the new trial was granted, sufficiently specific to satisfy the requirement of Rule 78.01, and that, therefore, (1) the procedural consequences imposed by Rule 83.06 for failure to satisfy such requirement should not be visited upon instant defendant and (2) the trial court may not be convicted of prejudicial error, as assigned in plaintiff’s first point, “in failing to specify the ground upon which it relied in purporting to grant defendant a new trial.”

The second (and only other) point in plaintiff’s brief is that “the trial court erred in granting a new trial upon the defendant’s motion for the reason that said motion did not present any predicate of error to justify such action.” As developed in the brief and oral argument, this complaint is that, regardless of whether the order reasonably might be said to have granted a new trial for simple excessiveness of the verdict, the trial court was not authorized to grant a new trial on that ground because (so plaintiff contends) simple excessiveness was not presented and preserved in defendant’s motion for new trial. Since Sunday, March 25, 1962, was the last day of the thirty-day period after verdict and judgment on February 23, within which the trial court of its own initiative might have ordered a new trial “for any reason for which it might have granted a new trial on motion of a party” [Rule 75.01; Section 510.370], that thirty-day period was extended to include the following day, Monday, March 26. Rule 44.01 (a); Section 506.060(1). However, in entering on March 26 the order under consideration here, the trial court did not purport to act “of its own initiative” [Rule 75.01; Section 510.370], but the order obviously was entered in response to, and clearly was dependent upon, defendant’s motion for new trial. Accordingly, we agree with instant plaintiff that the order granting a new trial for simple ex-cessiveness of the verdict should not be sustained unless defendant’s motion for new trial presented and preserved that ground.

Whether simple excessiveness was so presented and preserved is a question which, due to the unorthodox form and content of the motion for new trial, is not free from doubt and difficulty. Almost seven tran-script pages in length, the motion included quoted excerpts and digested passages from the medical testimony and (in addition to these excerpts, the prefatory paragraph and the prayer) contained nine paragraphs, only three of which were numbered. We are not here concerned with the first numbered paragraph, the medical testimony quoted thereunder, and the succeeding unnumbered paragraph, all of which related to alleged error in the court’s admission of, and refusal to strike, certain evidence.

In the second numbered paragraph, plaintiff complained that “the verdict of the jury was and is excessive and the result of bias and prejudice on part of the jury against the defendant and in favor of plaintiff.” This assignment was followed by five unnumbered paragraphs and an excerpt from plaintiff’s medical testimony, all obviously directed to the alleged excessiveness of the verdict. The last such unnumbered paragraph asserted, by way of summation and conclusion, that “therefore, the only elements of damage established by plaintiff as a direct result of the injuries occasioned by the collision were (a) loss of two week’s (sic) work, $400.00; (b) medical expense of $120.00; (c) pain and suffering by reason of cuts and abrasions during the two weeks immediately following the collision.”

The third numbered paragraph opened thus: “The amount of damages allowed plaintiff by the jury was not supported by any credible evidence in the case and was based on mere speculation, guess and surmise as shown by the evidence aforesaid.” The quoted sentence pertained to the alleged excessiveness of the verdict and, by its language (i. e., “as shown by the evidence aforesaid”), referred to the evidence bearing upon alleged excessiveness which had been quoted under or digested in the preceding unnumbered paragraphs. The remainder of the third numbered paragraph was directed to an entirely different point in which we have no interest here, to wit, that the trial court had erred in refusing to sustain defendant’s motions for directed verdict “for the reason that plaintiff’s evidence as a basis for his cause of action (i. e., concerning the manner in which the collision had occurred) was opposed to physical facts.”

In their brief, plaintiff’s counsel characterize the second numbered paragraph as a ■“claim of prejudicial misconduct on the part of the jury”; and, if this paragraph stood alone without explanation, elaboration or elucidation, we would be constrained to ■agree that it constituted an assignment of ■excessiveness by misconduct. Skadal, supra, 351 S.W.2d loc. cit. 690; Stokes v. Wabash R. Co., 355 Mo. 602, 610-612, 197 S.W.2d 304, 309. But, as we have noted, the second numbered paragraph was followed by five unnumbered paragraphs and an excerpt from the medical testimony, all directed to the alleged excessiveness of the verdict; and, except for the latter portion of the second numbered paragraph where, ■after the averment that “the verdict of the jury was and is excessive,” it was alleged ■conjunctively “and (was) the result of bias ■and prejudice on the part of the jury * nothing in the entire motion for new trial ■charged or even suggested excessiveness by misconduct. True, plaintiff’s counsel bitterly criticize the remainder of “part 2 of the motion” (i. e., the five unnumbered paragraphs and excerpted testimony) as permeated by “manifest distortion and misrepresentation” of the facts; but, regardless ■of whether that criticism is justified, the remainder of "part 2” certainly was not and is not reasonably susceptible of being construed either as constituting or supporting a charge of excessiveness by misconduct. On the contrary, the (hereinbefore-quoted) la-st unnumbered paragraph, in which defendant’s counsel listed “the only elements of damage established by plaintiff as a direct result of the injuries occasioned by the collision,” persuasively indicated a purpose to charge simple excessiveness.

All of this suggests various close and perplexing questions, e. g., (1) whether the five unnumbered paragraphs and excerpted testimony were so tied to the second numbered paragraph that all necessarily should have been considered and construed together as “part 2" of the motion for new trial and as a single assignment of error; (2) if question (1) were answered in the affirmative, whether the conjunctive charge of “bias and prejudice” in the second numbered paragraph so tainted the remainder of “part 2” (i. e., the five unnumbered paragraphs and excerpted testimony) as to have impelled the conclusion that, construed as an entity, “part 2” charged excessiveness by misconduct rather than simple excessiveness; and (3) if question (1) were answered in the negative, whether one or more of the five unnumbered paragraphs properly might have been construed as an assignment of simple excessiveness. However, in our view of the matter, we need not and, therefore, do not resolve any of the questions posed. For, whatever construction of “part 2” (or any portion thereof) might have been permissible or proper, we are of the opinion that the first sentence of the third numbered paragraph was sufficient to raise and preserve simple excessiveness of the verdict.

Again attending to the language of that sentence, we read that “the amount of damages allowed plaintiff by the jury was not supported by any credible evidence in the case and was based on mere speculation, guess and surmise as shown by the evidence aforesaid,” and we remind ourselves that “the evidence aforesaid” (i. e., that quoted under and digested in the five unnumbered paragraphs immediately preceding the third numbered paragraph) bore upon the alleged excessiveness of the verdict but in no wise charged or even suggested exces-siveness by misconduct. In McCloskey v. Pulitzer Pub. Co., 163 Mo. 22, 63 S.W. 99, where the trial court had granted a new trial for plaintiff’s failure to remit, the Supreme Court thus rejected the appellate contention that excessiveness of the verdict had not been presented and preserved in defendant’s motion for new trial: “There are several grounds assigned in the motion which we think cover that of the excessiveness of the verdict, among which is, ‘The verdict was wholly unwarranted by the testimony.’ If the verdict was excessive, it was unwarranted by the testimony, because not in accordance therewith. * * * The second ground (in the motion for new trial) asserts that there was no evidence whatever authorizing the verdict for compensatory damages, and that the verdict should have been for nominal damages only. The third ground asserts that there was no evidence whatever to support the verdict for punitive damages. That is, in both these grounds it is, in effect, declared that the verdict for compensatory damages and the verdict for punitive damages were excessive.” [163 Mo. loc. cit. 31, 32, 63 S.W. loc. cit. 100(1, 3)] Shortly thereafter the St. Louis Court of Appeals observed in Trustees of Christian University v. Hoffman, 95 Mo.App. 488, 499, 69 S.W. 474, 476 (8), that: “It has been recently held by the second division of the supreme court that a motion for new trial which assigns the ground that ‘the verdict was wholly unwarranted by the testimony’ amounts to an objection that there is an excessive verdict, and that such an assignment of error sufficiently raises that question for review. McCloskey v. Publishing Co., 163 Mo. [loc. cit.] 31, 63 S.W. 99.” More than sixty years later, we should not be more severe and rigorous in our construction of assignments of error. Although procedural rules are indispensable and essential compliance with them is necessary, the judicial process, in which courts seek to work substantial justice, is not to be subverted into an exacting exercise in semantics.

Neither the assignments under scrutiny in M'cCloskey and Christian University, supra, nor those under consideration here were “precise assignments of mere exces-siveness.” Cruce, supra, 361 Mo. loc. cit. 1149, 238 S.W.2d loc. cit. 680. But, mindful of the injunction by rule and by statute that “(a) 11 pleadings shall be so construed as to do substantial justice” [Rule 55.26; Section 509.250] and of the blunt judicial admonition that “(a)ssignments of error in a motion for new trial should be given liberal construction” [Stroh v. Johns, Mo., 264 S.W.2d 304, 308(7)], it is our considered conclusion that the first sentence of the third numbered paragraph was sufficient to present and preserve the question of simple excessiveness of the verdict. See again Cruce, McCloskey and Christian University, supra.

Although the foregoing is dis-positive of the only two points in plaintiff’s brief, the earnestness and perseverance of plaintiff’s counsel move us to consider also the oblique attack in a subpoint that the “order requiring a remittitur * * * constituted an abuse of authority in that it is without support in the record.” The governing principles are well-settled. Of course, it is the province of the jury, in the first instance, to assess the amount of damages [Spica v. McDonald, Mo., 334 S. W.2d 365, 368(1); Donahoo v. Illinois Term. R. Co., Mo., 300 S.W.2d 461, 469 (10)], and such award by the jury should not be set aside lightly or capriciously. Lindsey v. Williams, Mo., 260 S.W.2d 472, 478(4), certiorari denied 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063; Willis v. Willis, Mo.App., 274 S.W.2d 621, 625(5). However, the trial court is vested with wide discretion in ordering a new trial on account of the amount of the verdict [Combs v. Combs, Mo., 295 S.W.2d 78, 80(2) ; Wicker v. Knox Glass Associates, 362 Mo. 614, 619, 242 S.W.2d 566, 569(4)] ; the granting of a new trial for excessiveness is equivalent to the granting thereof on the ground that the verdict is against the weight of the evidence [Greco v. Hendricks, supra, 327 S.W.2d loc. cit. 245 (2); Bierman v. Langston, Mo., 304 S.W.2d 865, 867(3)]; and the action of the trial court will not he disturbed on appeal where the reviewing tribunal, not weighing the evidence but viewing the record in the light most favorable to sustention of the order, finds reasonable and substantial support for the ruling nisi. Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609, 612-613(7, 8); Stith v. St. Louis Public Service Co., 363 Mo. 442, 454, 251 S.W.2d 693, 700(14), 34 A.L.R.2d 972; Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 1075, 238 S.W.2d 426, 431(12, 13). The appellate court must remain ever mindful that, in the exercise of the important function of determining whether a new trial should be granted for excessiveness or inadequacy of the verdict, the trial judge is invested with the right and is charged with the duty to consider and weigh the evidence and, in so doing, to accord to the testimony of the respective parties and their witnesses such weight and value as in his opinion should be given thereto. Combs v. Combs, supra, 295 S.W.2d loc. cit. 80(4) ; Sanders v. Illinois Central R. Co., 364 Mo. 1010, 1019, 270 S.W.2d 731, 737(6); Enyart v. Santa Fe Trail Transp. Co., Mo., 241 S.W.2d 268, 271(9).

Plaintiff, then forty-three years of age and “a lease driver” for a trucking concern, was at the time of accident westbound on Highway 60 in a new 1958 GMC diesel tractor. Defendant was driving a tow-car unit (i. e., a 1951 Buick towing a 1951 Ford) in an easterly direction on the same highway. As a result of the collision, plaintiff’s tractor overturned. Plaintiff said that he “lost consciousness” at the time of impact and “regained consciousness in the ambulance in front of Dr. Speers’ clinic in Cabool.” But defendant’s evidence on this subject was that, while still in the overturned cab of the tractor, plaintiff had reached up and turned off the motor. Dr. Joe Speers, the only medical witness, detailed and described plaintiff’s injuries as a laceration on the back of his head about one inch in length and closed with three sutures, a laceration on his right forehead about three-quarters inch in length and closed with two sutures, several bruised areas including a bruise below the right knee, the skin “scraped in a few places over his head,” and “shock” — “I think you could say that.” Plaintiff remained at Dr. Speers’ office for some four hours until his wife, notified over long distance, arrived in Cabool and on the same date returned plaintiff by automobile to his home in Tulsa. Thereafter, plaintiff made two calls at the office of Dr. Stuart White in Tulsa, the first on the day following the accident and the second three or four days later when the sutures were removed. Admittedly, plaintiff sustained no fracture and was not hospitalized. Although still “awfully sore,” he returned to work two weeks after the accident. To that date, his medical expenses had aggregated $15 (i. e., $5 to Dr. Speers and $10 to Dr. White); and, since his average earnings were “probably $200 a week,” his loss of earnings had been about $400.

In their critical discussion of defendant’s motion for new trial, plaintiff’s counsel emphasize (to borrow their terminology) two “episodes of severe back pain” suffered by their client in June 1959 and in July 1960. In describing the June 1959 episode, plaintiff said: “I started to wash my face one morning, and I don’t know what happened, I’m not — not a medical man — but I couldn’t straighten up. I had stooped over to wash my face and — well, that’s the position I remained in for two weeks.” Plaintiff “went to a Dr. Stewart in Tulsa,” who took x-rays and prescribed some “pain relievers.” In the July 1960 episode (apparently of the same character as the previous one), plaintiff “went back to Dr. Stewart again” and then to a “Mr. Kempe” — “I don’t know whether he’s a chiropractor or an osteopath.” Plaintiff was off work three weeks in the June 1959 episode and two weeks in the July 1960 episode. Dr. Stewart’s bill for services, including “a series of x-rays,” totaled $80. Dr. Kempe’s bill was “probably $20.” With plaintiff himself spontaneously and significantly explaining that “I don’t know what happened, I’m not a medical man,” and with no information concerning either back episode having been supplied by any other witness, obviously neither the jurors nor the trial judge (none of them men of medicine) could have known “what happened.” Pursuant to request by his counsel, plaintiff was re-examined by Dr. Speers of Cabool on October 13,1961. Upon trial Dr. Speers expressed the opinion that plaintiff “has a weak of unstable back” which “probably is permanent,” but the doctor further said that, “as to what caused this, I don’t think I could make any statement”

The burden rested on plaintiff to show by substantial evidence the causal connection between defendant’s negligence and the alleged injuries for which recovery was sought. Berry v. Kansas City Public Service Co., 341 Mo. 658, 676, 108 S.W.2d 98, 107; Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 304(1). No doubt there are situations in which such causal connection reasonably may be inferred without the opinion of a medical expert [e. g., Bell v. S. S. Kresge Co., Mo.App., 129 S.W.2d 932, 935(4) ]; but it would seem that whether the accident of September 27,1958, caused, or contributed to cause, the back episodes of June 1959 and July 1960 and the “weak or unstable back” found by Dr. Speers on October 13, 1961, posed questions for men learned in the science of medicine. Adelsberger v. Sheehy, 332 Mo. 954, 958, 59 S.W. 2d 644, 646; Franklin v. Kansas City Public Service Co., 239 Mo.App. 151, 155, 186 S.W.2d 546, 548(1); Gulley, supra, 341 S.W.2d loc. cit. 305(4). See also Moore v. St. Louis Transit Co., 226 Mo. 689, 704-705, 126 S.W. 1013, 1017(5). Otherwise stated, we think that the back episodes, occurring so long after plaintiff had returned to regular employment as a truck driver, could not be treated as ordinary or natural results of the accident, and that “(n)o layman could know or have any reasonable basis for an inference that (such episodes) did result from it.” Kimmie v. Terminal R. R. Ass’n. of St. Louis, 334 Mo. 596, 604, 66 S.W.2d 561, 564; Cox v. Missouri-Kansas-Texas R. Co., 335 Mo. 1226, 1236, 76 S.W.2d 411, 416; Hunt v. Armour & Co., 345 Mo. 677, 684, 136 S.W.2d 312, 316. In any event, we are satisfied beyond doubt that, on the record presented to us, any inference that plaintiff’s back episodes or his “weak or unstable back” resulted from the collision of September 27, 1958, would rest upon nothing more substantial than sheer speculation, rank surmise, and unbridled conjecture. Stewart v. Martin, 353 Mo. 1, 5, 181 S.W.2d 657, 658; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 68, 95 S.W.2d 1173, 1175; Gulley, supra, 341 S.W. 2d loc. cit. 305.

In these circumstances, the trial court in considering and ruling the complaint of simple excessiveness in the motion for new trial properly should have disregarded, and no doubt did disregard, the testimony pertaining to the back episodes and “a weak or unstable back.” With this evidence put aside as it should be on the transcript before us, we think it clear beyond reasonable room for argument that plaintiff has not carried his appellate burden of demonstrating that the trial court abused its discretion in finding that the verdict for $3,700 was excessive and in ordering a new trial upon plaintiff’s refusal to remit $1,200. Fullerton v. Atchison, T. & S. F. Ry. Co., Mo., 285 S.W.2d 572, 574(2); Bierman, supra, 304 S.W.2d loc. cit. 865, 868(7); Union Elec. Co. of Missouri v. McNulty, Mo., 344 S.W.2d 37, 39(2).

Plaintiff’s counsel have suggested that another trial (if ordered) should be limited to the issue of damages. But, for the logical and convincing reasons amplified in Greco v. Hendricks, supra, 327 S.W.2d loc. cit. 247-249(8, 9), we are of the opinion that the order granting a new trial should be affirmed in its entirety and that the cause should be remanded for retrial on all issues. See also Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 729(7). Accordingly, that is the order and judgment of this court.

RUARK, P. J., concurs.

HOGAN, J., not sitting.

      . Except as otherwise specifically stated, all réferences to rules are to the Supreme Court Rules of Civil Procedure, Y.A.M. R., and all references to statutes are to RSMo 1959, V.A.M.S.

      . Hall v. Brookshire, 364 Mo. 774, 267 S.W.2d 627, 629(3); Drake v. Hicks, Mo., 261 S.W.2d 45, 48-49(1, 2); Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 669, 677 (10); Missouri Crooked River Backwater Levee Dist. of Ray County v. Merrifield, 358 Mo. 915, 21S S.W.2d 110; Young v. Hall, Mo.App., 280 S.W.2d 679, 680(1); Willis v. Willis. Mo. App., 274 S.W.2d 621. 625(6); Ragsdale v. Young, Mo.App., 215 S.W.2d 514, 516 (1).

      . Nussbaum v. Kansas City Stock Yards Co. of Maine, Mo., 359 S.W.2d 335, 340-341(4); Skadal v. Brown, Mo., 351 S.W. 2d 684, 689-690(12-14); Cruce v. Gulf, Mobile & Ohio K. Co., 361 Mo. 1138, 1148, 238 S.W.2d 674, 680; Dye v. St. Louis-San Francisco Ry. Co., Mo., 234 S.W.2d 532, 534; Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 1135, 219 S.W.2d 333, 340(12-14), 8 A.L.K.2d 710; Stokes v. Wabash R. Co., 355 Mo. 602, 611, 197 S.W.2d 304, 309; Jones v. Pennsylvania R. Co., 353. Mo. 163, 171-172, 182 S.W.2d 157, 159; King v. Kansas City Life Ins. Co., 350 Mo. 75, 81, 164 S.W.2d 458, 461; Brown v. Kroger Co., Mo.App., 358 S.W. 2d 429, 435(11).

      . Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 27(1); Ridenour v. Duncan, Mo., 246 S.W.2d 765, 767(1); Birmingham v. Kansas City Public Service Co., 361 Mo. 458, 401, 235 S.W.2d 322, 324(1); Goodman v. Allen Cab Co., 360 Mo. 1094, 1100, 232 S.W.2d 535, 539(7); Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527, 536.


author: HUNTER, Judge. .

text:
    Asbury Bryant HIRSCH, Respondent, v. Monique HIRSCH, Appellant.
    No. 23657.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.
    Rasse & Rasse, Marshall, for appellant.
    Roy D. Williams, Dale Reesman, Boon-ville, Raymond C. Lewis, Jr., Smith & Lewis, Columbia, for respondent.
   HUNTER, Judge. .

This appeal is by a mother who was deprived of the custody of her children as a result of a hearing on child custody motions.

Appellant, Monique Hirsch Siefkas, and respondent, Asbury Hirsch, were formerly husband and wife and resided in Boonville, Cooper County, Missouri. On March 9, 1961, Mr. Hirsch obtained a decree of divorce from Monique Hirsch (Siefkas) in the Circuit Court of Cooper County which decree awarded Monique Hirsch the custody of the two minor children born of the marriage; Simone, then age 9 and Christine, then age 5, and $350 per month child support. Mr. Hirsch was granted reasonable visitation privileges. The divorce decree also provided the children could not be removed from the jurisdiction of the circuit court without the permission of the court.

Approximately 3½ months after the divorce Mrs. Hirsch with the two children moved from Boonville, Missouri, to Columbia, Missouri. On July 20, 1961, she married James Siefkas, a graduate of the University of Missouri who possessed a Master’s Degree in Education and who had for two years been teaching at Christian College in Columbia, Mo., while obtaining his Master’s Degree.

Mr. Siefkas secured employment as a teacher of English and speech at Northwest State Teachers College in Maryville, Missouri, and in August of 1961 Mrs. Siefkas, her husband and the two children moved to Maryville where they lived until late September, 1961. At that time Mr. Siefkas, a member of the military reserve, received orders activating him and ordering him to report to Ft. Devens, Massachusetts, not later than October 16, 1961, for a tour of duty not exceeding twelve months.

Mrs. Siefkas wished to accompany her husband, and in accordance with the divorce decree filed a motion with the Circuit Court of Cooper County requesting permission to remove her children from the court’s jurisdiction so she could take them and accompany her husband in his temporary military assignment.

Mr. Hirsch filed a motion opposing his former wife’s motion. His motion contained no allegation of any change of conditions since the divorce but said, “ * * * if conditions surrounding said minors have materially changed as a matter of law, then the provisions for the custody and control of said children, and the allowance made by the court, for the support of said children should be reviewed by said court, and, further answering, the said A. B. Hirsch requests the court to award him the custody of said children; that his mother, his two aunts, and his sister, will assist in rearing said children; that they will have a permanent home, permanent school and permanent church affiliations, if the custody is awarded to the said A. B. Hirsch.”

The two motions were heard in part on October 16, 1961, and continued to and completed on November 13, 1961. We proceed to summarize what we deem to be the pertinent evidence adduced at these two hearings.

Mrs. Siefkas testified that under Army regulations a wife and her children were allowed to accompany the husband to Fort Devens. His travel orders provided, “Travel of dependents and shipment of household goods at government expense is authorized ⅜ * * ” To her knowledge there were good schools and adequate church facilities in the area where they would live, and as soon as her husband was released they would return to Missouri. She stated her opinion that the temporary move would not be detrimental to the children’s welfare.

On cross-examination she testified one of her children had gone to school in Boon-ville (the other was then too young for school) until she moved during the summer vacation time to Columbia; that both children are now attending public school in Maryville; that her two children have not had their religious affiliations changed and often still go to the same church; and that since she doesn’t usually have them on week ends their father takes them to church. When asked how Mr. Siefkas disciplined the children she replied, “He just uses a very stern tone of voice. * * * (He is) firm when they need it. But he is not a stern person with them. He laughs with them, he takes them fishing, plays with them, sees to it that they study. He is a good father to them.” She described their home in Maryville.

She was examined by the court as follows:

“Q You stated a while ago on the stand that your preference would be to go with your husband and take your children with you.
“A That is right.
“Q What would be your next preference? To stay in Maryville with your children or to go to Massachusetts without your children ?
“A That is a hard question.
“Q I know it is.
“A I feel like, really I should be with my husband and my children should be with me.
“Q Suppose you can’t have both. Which would you prefer?
“A I just can’t make a decision.”

At the November 13, 1961, hearing Mrs. Siefkas explained that, on the occasion of her two weeks’ honeymoon when Mr. Hirsch had the children he sent one to Seda-lia with an aunt and the other one remained in Boonville with Grandma. Upon her return when she. got the children they seemed very upset. She stated Mr. Hirsch didn’t give the children very much religious training prior to their separation but then he started to more or less use religion as a hold over them.

She stated unequivocally that she would return to Missouri with her husband when his tour of duty was over; that if permitted to take her children temporarily to Massachusetts she was agreeable to modifying the visitation privileges of Mr. Hirsch to allow him summer and Christmas visits and a three week vacation visit.

Mrs. Marilyn Snell of Columbia, Missouri, testified concerning the home and treatment of the children the three months they resided in Columbia. She was in their home at least five or more times a week. “Every time I went there, the children were always clean, the house was immaculate. They were very happy. Many times I have gone in the living room and he (Mr. Sief-kas) would be sitting in the rocking chair with Christine and Simone in his lap, talking to them, and they were always doing things, swimming, fishing, go to the show. They were very happy, all four of them. They were always bathed and put to bed at night. They were always in bed by nine o’clock each night. And very rarely were they given sweets or soft drinks. Very rarely. They were well mannered. They were disciplined real well. Q What would state your opinion of that home to be? A I think it was a very happy, well kept, well organized home.”

Captain Howard J. Blumgardt of the United States Army testified Mr. Siefkas’ army pay with quarter’s allowance would approximate $227.00 a month, that housing is critical, expensive and of poor quality in the Ft. D evens area and that the public schools are crowded. He thought it recommended that reservists not bring their families.

Mr. Hirsch testified he is the owner of a drug store in Boonville, and resides alone in a $25,000 home there. He is not remarried and stated he intends never to remarry. He does some of his own cooking. He eats some meals out and some at his mother’s. His mother lives near him in Boonville and his sister lives in Kansas City. His mother does not intend to live with him. His aunt, possibly over seventy years old, lives in Sedalia. He testified that since the children have been in Maryville (about two months) “they seem like they have changed a little in that they are afraid to say anything, in relation to what they have done, or what their school work is, if they have been to church or anything like that. They hesitate to say anything about it.” The children stayed with him two weeks during the past summer while their mother was on her honeymoon. If he were given the custody of the children, “I would hire a housekeeper and an elderly lady and have her come in and do the cooking and the house cleaning. I would do the rest, with the assistance of my sister (who lives in Kansas City) and my mother, if anything unnecessarily came up.” “Q Don’t you think that this constant turnover of housekeeper, mother, sister, and so forth, might be slightly upsetting to the children in an over extended period of raising time ? A Well, there is no — it would be impossible to tell whether there would be a turnover or not.” He has no specific work hours. “Well, we close every night at six o’clock. I usually don’t work every night until six. Possibly 3:30 or two every other day.”

In speaking of Mr. Siefkas’ father and mother he said, “Well, I think they are nice people and I think they would treat them (the children) right, * * When asked why the children’s mother should not have their custody he replied, “She was unstable. She doesn’t stay with anything very long. She wants to do one thing one day and one thing the next. She has moved around a lot.”

Mrs. Blanch Hirsch, the paternal grandmother, testified the two little girls stay at her house “quite a bit”. They cried one time when they had to leave. She would be glad to help in rearing the two children.

Mr. Hirsch’s sister, Alice Pauls, testified she also would help and would more often come from Kansas City to Boonville for that purpose. She has seen the children very seldom since the divorce.

At the second hearing, James Siefkas, twenty-six years old, who had returned from Fort Devens testified he reported to Fort Devens on October 12, 1961. His MOS is military policeman, his rank corporal, and his pay is approximately $277.00. He has $1500.00 in savings, not including $3,000 of his money his father is presently using. He has located an apartment in Leominster, Massachusetts, about ten miles, a twenty minute drive, from the Fort. It has a kitchen, living room, two bedrooms and is fully adequate. There is a public school about one block away. He talked with the school principal to check the school situation. There are fourteen people in the fifth grade and twenty-eight in the first grade. The Army would provide all medical expenses for his wife and children. He has never used any of the children’s support money for his or his wife’s purposes. At the time of his temporary military call he was teaching speech and English at Northwest State Teachers College at Maryville where he will return and resume his teaching job when his military tour ends. His teaching job will be given back to him both because of the promise of the college presi-ent and because of the law on the subject. He described the children, “I feel as if they are my daughters now. They are very charming children and I love them very much.” He thinks it is up to his wife and children as to where the children should go to church. He has spanked the children a couple of times but has never punished them severely.

Upon examination by the court Mr. Siefkas stated that after his present wife had been separated from her husband for many months but before the divorce decree was rendered on March 9, 1961, he did have some dates with her; that their conduct was at all times proper, and it was not until after the divorce that he became serious and made any plans to marry her.

As to his future Siefkas testified he is an educator and his teaching position at Mary-ville is a good one. He hopes to remain there a long time. His wife wants to take some college work there also and try to get a degree.

Mr. Siefkas testified the children are happy in the public school they attend in Maryville. It was both his and his wife’s idea to send the children to that school. Mrs. Monique Siefkas testified she went to see the children’s teachers in Maryville concerning their change from the Boon-ville school. The teachers told her “the children were doing real well, that they were happy, normal, well-balanced children.” A letter dated October 27, 1961, from Delores M. Bowles, supervising teacher, Northwest Missouri State College, was received in evidence without objection. It gave the following school information concerning Christine, a first grade student at Horace Mann Laboratory School, Mary-ville :

“Behavior:
toward classmates toward teacher toward student teachers “Teacher’s Observation :
Good
Very Good
Very Good
of intellectual development
general deportment
emotional control
nervous reactions of child
appearance
personality
dress
Showing desired improvement
Very good
Very good
Average
Very good
Very good
Very good
“Mrs. Delores M. Bowles, Supervising Teacher
A. B.S. in Educ., SMS, Springfield, Missouri M.A. in Educ., Long Beach State, Long Beach, California
B. UCLA, Orange Coast College, Costa Mesa, California
C. 26 years teaching experience
D. Grades taught: Kindergarten through Eighth”

Also received in evidence without objection is a letter dated October 27, 1961, from Dean E. Savage, Horace Mann High School, concerning school information relative to his fifth grade pupil, Simone Hirsch. It read: “Simon(e) is a well-behaved'and very likeable girl. She gets along well with her peers both in the classroom and on the playground.

“Simon has made satisfactory progress in subject matter areas this year. She is an average student in most areas but tends to excell in reading.

“Simon appears to be well adjusted and has not shown any uncommon signs of nervousness.

“She is also a very attractive and is always very clean and well dressed.

“I hold a Bachelor of Science Degree in Elementary Education from Northwest Missouri State College, Maryville, Missouri, and a Master of Arts Degree in Elementary School Administration granted by Northeast Missouri State Teachers College, Kirksville, Missouri.

“I have been a school administrator and teacher for three years, teaching a combination of grades five through eight.”

Claude Siefkas, James’ father, testified he and his wife lived about four miles east of the Marshall Junction on a farm. The children have been in his home many times. They are well behaved, normal, and very sweet children. He knows his son’s financial condition and it is good. He owes his son $2,700 and will repay it any time it is desired and would help his son financially any time such help is needed. Mr. Hirsch visited him once after his son’s marriage to Monique and told him “he was glad that Monique had married into the family like ours was, and that he appreciated how we had accepted his daughters, and even talked about the possibility of them staying with us.”

James’ mother, a school teacher, testified the children are well-dressed, clean and very neat. They have good manners and are well-behaved children. They are very happy. Her son, Monique and the children do things as a family together.

The court with the consent of the parties visited informally with the two children alone in chambers. He stated they said they loved their father and that they indicated a preference for their Boonville home and their school there and did not want to go to Massachusetts to live.

We have purposely omitted reference to the evidence pertinent to the question of whether the $350.00 monthly support allowance should be reduced. The court did not pass on this question but rather conditionally on a suitable housekeeper being employed by Mr. Hirsch ordered the custody of the two children be taken from their mother and given to their father, with reasonable visitation privileges to the mother together with certain specified holiday visitation.

With this evidence before us we state several well established pertinent rules that affect our ultimate decision. First is the fundamental that in awarding the custody of a child of divorced parents the paramount concern of the courts is the welfare of the child — i. e., what is to the best interest of the child. At the time of the original divorce decree on March 9, 1961, just eight months prior to the completion of this hearing on November 13, 1961, the trial court found the best interests of the children would be served by awarding their custody to their mother. As stated in S. v. G., Mo.App., 298 S.W.2d 67, 77, the rule is that “In making our determination we commence with the presumption that the child was with the right party at the outset because that is where the court had placed it.” Since by the original decree the custody of the children was awarded to the mother she is entitled prima facie to continue to have that custody.

A provision once made becomes as conclusive as any other order or decree, and can only be modified on a showing of sufficient subsequently changed conditions. Here, the father has the burden of proof of showing by a preponderance of the credible evidence that in the eight months since the date of the divorce decree granting custody of these children to their mother there has occurred, changed facts and circumstances which, in the best interests of the children, require modification of the original decree. In our review, we must bear in mind that it is not sufficient simply to show some change in circumstances but that modification is justified and permitted only upon proof of changed conditions affecting the welfare of the children to a substantial or material extent, and that it is no longer in the best interests of the children to have the original custody continued. The very welfare of the children itself must require the change. Hurley v. Hurley, Mo.App., 284 S.W.2d 72, loc. cit., 73-74; Schumm v. Schumm, Mo.App., 223 S.W.2d 122.

We, of course, give proper deference to the trial judge’s action, particularly if the credibility of witnesses is involved, and we also take into consideration the fact that he sees the parties and witnesses first hand. We do not lightly disturb his judgment. Even so, it is the settled law and it is our clear duty to review the entire record, to correct any error the trial court may have made, and to enter such judgment as justice requires.

Upon our independent review of the record we have concluded that respondent father has failed to carry his burden of proof of showing a substantial change of conditions since the divorce decree adversely affecting the welfare of the children and requiring for the sake of their welfare that their custody be changed from their mother to him.

We mention briefly some of the reasons for our conclusion, although the facts themselves speak plainly. First, we notice respondent’s motion failed to alleged what changes had occurred upon which he relied as justifying a change of custody. Rather, respondent merely says, “if conditions surrounding said minors have materially changed” he would like custody. This does not meet the well known requirements of a motion to change child custody that the changed conditions or new facts be pleaded.

Looking to the evidence, respondent says the fact Mrs. Siefkas married James Siefkas whom she had been dating while separated from her husband but prior to her ■divorce is such a change. Such dating, while certainly not proper, occurred prior to the divorce and the trial judge did not think it sufficient at the time of the divorce to cause him to conclude that it was not in the best interests of the children to place •them with their mother. We are at a loss to understand how it could now have a different effect on that consideration than it had at the time of the divorce. Mrs. Siefkas’ marriage to her present husband, if anything, appears to be a stabilizing influence and in no way derogatory of the best interests of these children.

It is also suggested Mrs. Siefkas is unstable as evidenced by her two moves since the divorce in one of which she took her children from the Boonville school to one in Maryville and that such moves are so detrimental to the children’s welfare as to call for a change of custody. While it is possibly preferable, if circumstances reasonably permit it, to never move one’s home and to keep one’s children in the same town and school all their school days, it does not follow that occasional moves, dictated by one’s occupation, of themselves require a change of child custody. In this modern day it is almost unusual for a working man or woman not to have some moves occasioned by employment transfers, employment advancements or for other justifiable causes. Such moves do not necessarily mean instability. Nor are they necessarily substantially detrimental to a child’s welfare. Such moves, at most, are but circumstances to be considered along with all the other facts and circumstances bearing on the question of the welfare of the children. Viewed in the light of the record before us, demonstrating beyond reasonable dispute, that these are well adjusted, well cared for, normal, happy children doing quite well in their school in Maryville, we find no merit in the contention made above.

Also, some contentions of respondent involve the question of where the children go to church. Ordinarily it is the one who has the general custody of very young children and, hence, the basic burden and responsibility of rearing them to be fine men and women who, subject always to the paramount general consideration of the children’s welfare, has the privilege of deciding what church the young children should attend until they are mature enough to decide for themselves. Annotation, Custody of Children — Religion As A Factor, 66 A.L.R.2d 1410, 1428(b). Normally, giving that privilege of choice to the one having general custody of young children is not detrimental to the welfare of young children but ordinarily is a reasonable, workable provision for obtaining for the young children desirable religious training. We find nothing in this record indicating the children’s welfare has suffered through the exercise of this privilege.

Another suggestion is that Mr. Siefkas is severe in that he once or twice spanked the children. Certain!y it is proper for him to assist in the normal discipline of the children, and the record convinces he is not overly severe with them but is understanding and kind in matters requiring their discipline.

Reference is made to the informal conference the children had with the judge. It is only natural that young children if they had their way would prefer to remain in their original town and school. We do not doubt they love their father. We are also convinced they love their mother who has had their continual care since their births and who has been a good mother to them. There is not the faintest suggestion in the record that this mother has done anything either unethical or immoral during any of the time properly in question. She has taken good care of these children, and they are getting along very well.

Mrs. Siefkas, in accordance with the provisions of the divorce decree, respectfully requested the permission of the court to take these children to Massachusetts. On this record we are unwilling to rule that the court abused its discretion and erred in refusing that permission. However, we are convinced the court erred in changing the custody of these children from their mother who has been taking good care of them to their divorced father who lives alone, and who would have to employ a housekeeper to provide much of their care.

For the foregoing reasons we find it necessary to reverse the judgment amending the original divorce decree so as to change child custody and to order the provisions of the original decree reinstated in full. If respondent wishes to seek a reduction in the amount of child support established in the original divorce decree, which neither the trial court nor we have passed on, he is free to file an appropriate motion in the trial court in which motion he should allege the necessary ultimate facts he relies on to justify a modification to a lesser sum.

The judgment is reversed.

All concur.

      . Appellant’s counsel informed the court at the time of oral argument that Mr. Siefkas’ tour of duty has now ended and that he is back at Maryville. However, since respondent’s counsel objects that this statement is outside the record, we have disregarded it.