text:
    Harold D. DIECKMAN and La Verne E. Dieckman, Appellants, v. Frank R. MORAN and Hartford Fire Insurance Company, Respondents.
    No. 52378.
    Supreme Court of Missouri, Division No. 2.
    May 8, 1967.
    Edward J. Delworth, Clayton, for plaintiffs-appellants.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent Hartford Fire Ins. Co.
   PRITCHARD, Commissioner.

Plaintiffs recovered judgment for personal injuries and loss of consortium against defendant Moran for $17,000. In this equitable garnishment proceedings against Moran’s insurer, Hartford Fire Insurance Company, under § 379.200, RSMo 1959, V.A.M.S. (ruled against plaintiffs by the trial court], the determinative question is whether the incident out of which arose Harold D. Dieckman’s injuries and resultant judgment is excluded from coverage under provisions of Moran’s Homeowners Policy as a “Business Pursuit.”

There is also a question of the sufficiency of notice of claim under the policy. Hartford did not press that defense in the trial court, and does not do so here. It is unnecessary to consider the notice issue in view of the holding hereinafter made.

Dieckman and Moran were employed as sheet metal workers by the St. Louis Board of Education on June 17, 1963, when, during the course of employment, Moran activated a power brake on a sheet metal machine and thereby caused injury to Dieck-man. Hartford’s Homeowners Policy, issued to Moran, was in force on that date.

Under Section II of the policy coverage was provided: “R. Comprehensive Personal Liability (Bodily Injury and Property Damage) $25,000.00 each occurrence; F. Medical Payments—Each person $500.00; G. Physical Damage to Property of Others $250.00.” In “Provisions Applicable to Section II,” Hartford agreed with its insured “To pay on behalf of the insured all sums which the Insure^ shall become legally obligated to pay as damages because of bodily injury or prpperty damage, and the company shall defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; *

Under “Special Exclusions” it was provided: “Section II of this Policy Does Not Apply:

(a) (1) to any business pursuits of an Insured, other than under coverages E and F, activities therein which are ordinarily incident to non-business pursuits,

(2) to the rendering of any professional service or the omission thereof, or

(3) to any act or omission in connection with premises, other than as defined, which are owned, rented pr controlled by an Insured, but this subdivision (3) does not apply with respect to bodily injury to a residence employee arising out of and in the course of his employment by the Insured.”

Paragraph 2 (d) of Definitions unde.r General Conditions provides: “Business: ‘Business’ includes trade, profession or occupation.”

It is true, as plaintiffs state, the policy provides a comprehensive coverage for personal liability. They say further that the phrase in Section 11(a) (1) of the policy “other than under Coverages E and F” is set off from the rest of the clause by commas, and the clause may be read to exclude “business pursuits of an insured * * *, activities therein which are ordinarily incident to non-business pursuits.” The two remaining portions of the clause are then read as being in series so that coverage is excluded under Section G as to business pursuits of an insured and activities therein which are “ordinarily incident to non-business pursuits.” Apparently, although plaintiffs do not clearly state, their position is that by excluding said phrase, Coverages E and F are afforded for the incident out of which the injuries arose. They would apply the exclusion only to Coverage G for physical damage.

The rules of construction of language in insurance policies have been variously stated. “In the construction of the policy, the rules to be followed are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, insofar as open to different constructions, that most favorable to the insured must be adopted. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 614, et seq., 267 S.W. 379, 381, 382. However, as said in 14 R.C.L. § 103, p. 931, the rule ‘does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity when none exists.’ Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, loc. cit. 101, 57 A.L.R. 615.” Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 222 S.W.2d 76, 78. See also Brugioni v. Maryland Casualty Company, Mo., 382 S.W.2d 707, 712 [5, 6]; 44 C.J.S. Insurance §§ 294-297, pp. 1155-1196; 29 Am.Jur. Insurance, § 245, p. 627 et seq.

The policy provision here under scrutiny is not ambiguous, as plaintiffs claim. True, it is poorly worded. The intent, however, is clear: business pursuits of the insured are excluded, except activities therein which are ordinarily incident to non-business pursuits. As Hartford contends, the inclusion of the phrase “under Coverages E and F” is for the purpose of limiting “activities ordinarily incident to non-business pursuits” to Coverages E and F, but not to physical damage to the property of others under Coverage G. The phrase “activities therein which are ordinarily incident to non-business pursuits” refers to the previous business exclusion. Plaintiff Dieckman being injured in the course of his employment by the act of Moran, also in the course of his employment, was within the “business” exclusion and definition thereof (i. e., “occupation”) of the policy. It is not contended that Moran was not engaged in a business pursuit at the time of the injury, or that he was engaged in an activity ordinarily incident to a non-business pursuit under the exceptions to the excluded coverage. See and compare Western Casualty and Surety Company v. Salerno, D.C., 224 F. Supp. 584, 588, and the appeal thereof, Salerno v. Western Casualty & Surety Company (C.A. 8th), 336 F.2d 14, 19.

Plaintiffs’ contended construction, supra, does not aid them. If the words “other than under Coverages E and F” are removed, Section II provisions still exclude business pursuits of the insured and also would exclude “activities therein which are ordinarily incident to non-business pursuits.”

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOWARD, Presiding Judge.

license: Public Domain

text:
    STATE ex rel. TRANSPORT DELIVERY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION OF MISSOURI, Respondent.
    No. 24595.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.

      Kyle Williams, Jefferson City, for appellant, Curtis Transport, Inc.
    Henry Andrae, Jefferson City, for appellant, Transport Delivery Co.
    Cullen Coil, Jefferson City, for appellant, John Groner Motor Carrier, Inc.
    Hendren & Andrae, Jefferson City, Carson, Inglish, Monaco & Coil, Jefferson . City, of counsel, for appellants.
    Wayne W. Waldo, Jefferson City, for respondents Public Service Commission of Missouri.
    Frank J. Iuen, Herman W. Huber, Jefferson City for intervenors, John F. Oliver, Edwin G. Mueller, d/b/a Berns-koetter Moving and Storage.
   HOWARD, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Cole County, affirming an order of the Public Service Commission of Missouri, permitting transfer of certain authority to operate as a common carrier by motor vehicle from Edwin G. Mueller, doing business as Bernskoetter Moving & Storage, to John F. Oliver. The application was filed in the Public Service Commission by Edwin G. Mueller, as transferor and John F. Oliver, as transferee, jointly,, seeking a transfer without hearing. Transport Delivery Company, Kaw Transport Company, Curtis Transport, Inc., John Groner Motor Carrier, Inc. and John Rathouz, d/b/a John’s Construction Company protested the transfer before the Public Service Commission. They filed petitions for leave to intervene and to have the application set for hearing, or, in the alternative, for oral argument on the question of the necessity and desirability of a hearing. This latter motion was heard on oral argument and the Commission ordered a hearing on the application for transfer to. determine whether ' or not such transfer would be “consistent with the public interest.”

This controversy concerns the applicability of the provisions of Section 390.111. (All references are to RSMo 1959 and V.A.M.S., unless otherwise specified.) Said section reads as follows:

“In the event a motor carrier, to which a certificate or permit shall have been issued under the provisions of sections 390.011 to 390.176, shall sell, transfer,, or assign the business, rights or assets of such motor carrier, or any part thereof, and such motor carrier and the purchaser thereof shall make proper application to the commission in writing, containing-such information as shall be prescribed by the commission by general order with respect to the transfer of certificates or permits, the commission shall transfer such original certificate or permit issued to such motor carrier, or the part so. sold to such purchaser, if the commission shall determine that the purchaser is in all respects qualified under the provisions, of sections 390.011 to 390.176 to conduct the business of a motor carrier within the-meaning of sections 390.011 to 390.176,, and upon the transfer of such certificate or permit it shall be effective in like manner as though originally issued to such purchaser; provided, however, the- commission shall not be required to transfer from a certificate authorizing the transportation of general commodities or freight, any portion of such certificate authorizing the transportation of a part of such general commodities or freight over the same route or within the same territory, unless the commission shall further determine, after hearing upon due notice, that such transfer is consistent with the public interest.” (Emphasis supplied.)

By the application Mueller sought to transfer to Oliver “the business, goodwill and all of that intrastate portion of Certificate No. T-S8, held by Transferor, except household goods as defined by the Commission, which reads as follows, * *.

“COMMON CARRIER, INTRASTATE IRREGULAR
“Intrastate Irregular: In the transportation of general commodities between Jefferson City and contiguous trade territory and from this territory to any point in Missouri and from any point in Missouri to Jefferson City and contiguous trade territory, subject to the restriction that no service is to be rendered between points on the regular route of an authorized motor carrier.” (Emphasis supplied.)

Mueller also held specialized authority for household goods as follows:

“Intrastate Irregular: In the transportation of uncrated household goods as a specialized service over irregular routes to, from and between all points in the State of Missouri, irrespective of whether such points may be located on the regular route of another motor carrier.”

He also held an interstate permit, which is not involved in any way in this proceeding.

The order for hearing on this transfer set out the history of Mueller’s authority; pointed out that when a carrier acquired different pieces of authority, at different times, that any overlapping in such grants merged with each other, so that the carrier only had one authority to perform one transportation service. It also pointed out that the general commodity authority held by Mueller was broad enough to cover the specialized service of transportation of un-crated household goods within the territorial scope of such general commodity authority. The Commission then held that “such a transfer would involve the transfer of a portion of a certificate authorizing the transportation of general commodities within the terms of Section 390.111.”

At the hearing held pursuant to this order, John F. Oliver introduced evidence, including his own testimony, of his fitness to operate as a common carrier under the proposed transfer of authority. He testified that if the transfer were approved, he would haul anything and everything which he was authorized to haul by such authority, if he were called upon to do so. No evidence was offered by applicants touching upon the question of whether or not this transfer would be “consistent with the public interest,” it being applicants’ contention that on a showing of fitness they were entitled, as a matter of law, to have such transfer approved. Mr. Mueller did not appear or testify.

Mr. Groner and Mr. Minshall appeared as witnesses for protestants John Groner Motor Carrier, Inc. and Transport Delivery Company, respectively. They testified that their companies hauled petroleum products (principally gasoline) from the Phillips Pipeline Terminal in Jefferson City and from various other terminals in central Missouri. They testified that, although they were familiar with the carriers who hauled from the various pipeline terminals, they had never seen nor known of Mr. Mueller hauling petroleum products from any such terminal. They testified that when Mr. Oliver acquired authority permitting him to haul petroleum products from the terminal near Mexico, Missouri, that he took business away from both Groner and Transport Delivery. They further testified that although their gross income had increased in the years 1961, 1962 and 1963, that business had fallen off in 1964, and that while they had purchased additional equipment in the past few years, they had equipment standing idle at the time of the hearing. Their interest was solely in the transportation of petroleum products.

Mr. Rathouz was the only other witness at the hearing. He held specialized heavy hauling authority to and from an area surrounding Jefferson City on the one hand and all points in the State of Missouri on the other hand. He testified that he owned one tractor and two trailers and that he did not have enough heavy hauling business to keep these vehicles operating all the time, and that another carrier authorized to render such service would be detrimental to him.

On May 24, 1965, the Commission entered its report and order denying the transfer. Two commissioners dissented. Appellants filed motion for reconsideration and rehearing and this motion was orally argued before the Commission en banc on August 20, 1965, and the motion for rehearing was taken with the case.

On September 24, 1965, the report and order of May 24, 1965, was set aside and a new report and order entered approving the proposed transfer and transferring the authority from Mueller to Oliver. Two commissioners dissented from this order. It appears that between the two orders the chairman of the Commission retired and a new chairman was appointed. The two commissioners who had dissented from the order of May 24, 1965, were joined by the new chairman, resulting in the change of decision.

Protestants Transport Delivery Company, Curtis Transport, Inc. and John Groner Motor Carrier, Inc., duly appealed to the Circuit Court of Cole County, where the order of the Commission was affirmed. These protestants have duly appealed to this court.

When this case was argued before this court, the attorneys for applicants orally and for the first time raised the contention that this appeal should be dismissed because the appellants had not filed a cost bond within ten days of the rendition of the judgment in the Circuit Court, as required by Section 386.540, paragraph 2. Pursuant to leave granted, at the time of argument, written motion to dismiss on this ground was filed. The appellants responded to such motion showing that the failure to file the bond was a matter of pure oversight and inadvertence and that such failure had been cured and a proper bond filed. By affidavit it is shown that the Public Service Commission has no objection to this late filing. Under the circumstances here presented, it appears that the provisions of this statute are directory and not mandatory and, since the late filing of the bond has caused no harm or hardship on anyone, and since the Public Service Commission, for whose protection the bond is required, has no objection, we decline to dismiss the appeal, but conclude to consider this matter on the merits.

On this appeal appellants contend that the order of the Commission, as affirmed by the Circuit Court, is unlawful and unreasonable because it was not supported by pompetent and substantial evidence on the whole record and there was no evidence to support the conclusion of the Commission that the transfer “would be consistent with the public interest” as required by the proviso in Section 390.111.

This proviso was added to the statute after the decision of this court in State ex rel. Springfield Warehouse and Transfer Company v. Public Service Commission, 240 Mo.App. 1147, 225 S.W.2d 792, wherein it was held that the Commission was required as a matter of law to approve a transfer upon finding that the transferee was qualified to perform the services under such transferred authority. See also State ex rel. Gehrs v. Public Service Commission, 232 Mo.App. 1018, 114 S.W.2d 161. This proviso takes away the right to transfer a portion of a certificate authorizing the transportation of general commodities, as a matter of law. It does not require the Commission to hold a hearing on the transfer but on the other hand it does not require the Commission to permit the transfer on a showing only that the transferee is qualified. It authorizes the Commission, in its discretion, to hold a hearing on the question of whether or not the proposed transfer “is consistent with the public interest” and the statute requires the Commission to permit the transfer only where it finds that the transfer will be “consistent with the public interest.” The Commission, by its order of January 6, 1965, exercised its discretion and determined that there should be a hearing on the question of whether or not the proposed transfer was “consistent with the public interest.” This order remains undisturbed and under it the Commission may only permit the transfer if it makes such finding and before it can make such finding, there must be evidence before it to support that finding. See State ex rel. City of West Plains v. Public Service Commission, Mo.Sup., 310 S.W.2d 925; Videon Corp. v. Burton, Mo.App., 369 S.W.2d 264.

On appeal from the order of the Public Service Commission, the appellant has the burden of showing that the decision of the Commission is unreasonable, unlawful, arbitrary and capricious. See State ex rel. City of St. Louis v. Public Service Commission, 335 Mo. 448, 73 S.W.2d 393; State ex rel. Byers Transfer Company v. Missouri Public Service Commission, Mo.App., 246 S.W.2d 825, and State ex rel. Potashnick Truck Service Inc. v. Public Service Commission, Mo.App., 129 S.W.2d 69. In the case at bar, the appellants have sustained this burden by filing the transcript of the evidence heard by the Commission. As has been heretofore pointed out, the applicants specifically and consciously refrained from introducing any evidence on this point. The three witnesses, who appeared and testified in addition to the proposed transferee, represented carriers interested only in the special service of transporting petroleum products, and in the special service of heavy hauling. As is pointed out by the applicants in their brief “much more is involved in this case than just the transfer of authority to haul petroleum.” Likewise, much more is involved than just the transfer of authority to perform heavy hauling services. General commodity authority embraces anything and everything that can be transported by truck and under such authority a carrier, if he files the appropriate rates and has the necessary equipment, can haul anything he can find to haul, including all types of specialized hauling, which may, at the same time, be the subject of individual specialized authority granted to other carriers. See re Bernskoetter Moving & Storage Co., 6 Mo. PSC (N.S.) 117 and State ex rel. Transport Delivery Co. v. Public Service Commission, Mo.App., 382 S.W.2d 823. Thus, since the only testimony which would possibly bear on the question of whether or not the proposed transfer was “consistent with the public interest” concerned only specialized hauling in the fields of petroleum products and heavy hauling, it is apparent that there was no evidence concerning the matter of whether or not this transfer “was consistent with the public interest” as to the many and varied other types of transportation authorized by the authority proposed to be transferred.

In the order approving this transfer entered by the Commission under date of September 24, 1965, the Commission relied heavily upon the fact that there was no evidence that the transfer would be detrimental to the public interest. This statement, while true, does not result from a consideration of substantial evidence on the matter, but rather results from the entire lack of evidence. There is no burden on the Commission to adduce evidence on this question, and there is no burden on other carriers in the area covered by the authority to be transferred, to come in and show that the transfer will be against public interest. On the contrary, the burden is on the applicant to show affirmatively that the transfer will be in the public interest. The absence of evidence and the absence of protest by other carriers in the field can not be converted into affirmative evidence on this question. See State ex rel. Byers Transportation Co. v. Public Service Commission, Mo.App., 246 S.W.2d 825, and State ex rel. Potash-nick Truck Service, Inc. v. Public Service Commission, Mo.App., 129 S.W.2d 69. We recognize that both of these cases involve a question of public convenience and necessity justifying the granting of a certificate and we further recognize that the quantum of proof required on the question of whether or not a transfer is “consistent with the public interest” is much less than the quantum of proof required on an application for the original issuance of a certificate of public convenience and necessity. However, we believe that the principles set forth in these cases are applicable here and they do not permit the conversion of an absolute lack of any evidence into affirmative evidence of the point to be proved.

In other words, in the hearing before the Commission the burden was on the applicants to show that the proposed transfer would be “consistent with the public interest” and this they have entirely failed and refused to do. Therefore, we can only conclude that the order of the Commission entered September 24, 1965, approving this transfer is unreasonable and void because it is not supported by any evidence, let alone competent and substantial evidence. The order of the Commission purports to find evidence on the whole record that the proposed transfer is “consistent with the public interest” from the testimony of the three witnesses for the protestants on cross-examination which is summarized as follows: “Under the evidence herein,' we do not believe that the ability of the competing carriers to render adequate, efficient service to the public would be detrimentally affected, or that the proposed transfer would result in detriment to the interests of the protestants. To the contrary, the protestants have admitted that even after the transferee engaged in competition with them elsewhere, as a result of another case, they have purchased additional equipment, and have enjoyed increased total revenues, and that there is 4% to 5% annual rate of increase in the volume of gasoline produced nationally.” It will be noted that this summary refers only to the transportation of petroleum products. We agree that evidence coming into the case on cross-examination of protestants’ witnesses could be sufficient to carry applicants’ burden, but in this case the evidence before us is entirely insufficient.

This evidence, together with the evidence concerning heavy hauling, covers only one very small segment of the broad authority proposed to be transferred. On the question of whether or not the transfer of the remainder of this general commodity authority would be “consistent with the public interest”, there is a complete absence of evidence, and, therefore, no basis on the record for the Commission to find either that the proposed transfer is or is not “consistent with the public interest.”

What we have said disposes of the point raised by appellants and requires the reversal of the judgment below. However, the applicants in their brief strenuously contend, as they have contended throughout this proceeding, that they are entitled to this transfer as a matter of law, under the provisions of this statute, because it does not constitute a splitting of the general commodity authority. Since this proceeding must go back to the Commission, we believe that we should comment thereon.

In its order approving the transfer the Commission specifically declined to pass upon this issue because it found that such issue was moot after it held that in any event the transfer was consistent with the public interest, whether or not the transfer would result in a splitting of the authority.

In opposition to applicants’ contention the appellant protestants argue that the doctrine of merger, as previously applied by this Commission, applies in this case; that the transferor Mueller has only one certificate of authority, which includes all of the transportation that he is authorized to perform ; that this authority includes the right to transport general commodities, and that the transfer of the authority to haul general commodities, leaving in Mueller only the authority to haul household goods, constitutes a splitting of this authority, and comes specifically within the wording of the proviso of Section 390.111. On the other hand, applicants contend that Mueller wants to separate two distinct pieces of authority. One is the irregular route authority to haul general commodities and the other is the authority to haul household goods. Applicants contend that these two authorities were acquired at different times by different and separate actions of the Commission and that they remain different and separate entities. Applicants specifically deny the authority of the Commission to apply its doctrine of merger because the same is not specifically authorized by statute. In this case we are not required to pass upon the legality of this doctrine of merger. If the doctrine is applied, and we hold that all certificates of authority issued to Mueller and his predecessors are merged into one authority, then clearly, this authority authorizes the transportation of general commodities and this application is for the transfer of part of that authority and comes strictly and literally within the provisions of the proviso of Section 390.111.

If, on the other hand, we adopt the argument of applicants then we are dealing with the transfer of the general commodity authority and do not need to consider the second paragraph of the authority wherein the special household goods authority is described. However, we must remember, as is pointed out in re Bernskoetter Moving & Storage Co., 6 Mo. PSC (N.S.) 117 and State ex rel. Transport Delivery Company v. Public Service Commission, Mo.App., 382 S.W.2d 823, that this general commodity authority includes authority to perform the special service of hauling household goods. This portion of this general commodity authority is to be retained by Mueller. The application specifically provides for such retention and specifically provides against the transfer of authority to haul household goods to Oliver. The Commission’s order of September 24, 1965, shows that there was such a splitting. Paragraph “Ordered 2:” transfers to Oliver authority: “in the transportation of general commodities, except uncrated household goods, between Jefferson City. * * ” (Emphasis supplied.)

The Commission by this order has not transferred all of the general commodity authority held by Mueller. It has split off that portion of the general commodity authority authorizing the transportation of household goods, and this order specifically authorizes its retention by Mueller and it is not transferred to Oliver.

Thus, regardless of which argument is accepted, this application for transfer does specifically and literally come within the proviso of Section 390.111 and the Commission is required to proceed thereunder.

For the reasons heretofore noted, the judgment of the trial court affirming the order of the Public Service Commission is hereby reversed and the cause is remanded to the Circuit Court of Cole County, with directions to remand this action to the Public Service Commission for further proceedings.

All concur.


author: TOWNSEND, Commissioner.

text:
    Peter E. WYNN, Plaintiff-Respondent, v. McMAHON FORD COMPANY, a corporation, Defendant-Appellant.
    No. 32519.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.

      Melville A. Ochsner, St. Louis, for appellant.
    Coleman, Ross & Cekovsky, Jack H. Ross, Sidney B. McClanahan, Clayton, for respondent.
   TOWNSEND, Commissioner.

This is an action for damages arising on the breach of an alleged contract for the sale of a boat, a motor and a trailer. Plaintiff prevailed in the Magistrate Court and, on appeal, in the court-tried case in Circuit Court, plaintiff had a judgment for $350. This appeal followed.

Plaintiff testified to the following effect: Having heard from an undesignated person that a boat was for sale at the premises of defendant, he went to defendant’s used car lot and there encountered Mr. Walton, used-car salesman, and inquired if they had a boat for sale. Mr. Walton answered in the affirmative and priced the boat at four hundred ninety-five dollars. (All references herein to “boat” are intended to include the motor and trailer). Plaintiff inspected the boat and noted some minor defects ; Walton asked if $20 would cover repair of the same. Upon plaintiff’s affirmative answer to that question Walton then priced the boat at $475. Plaintiff then left to return the following evening to tell Walton whether he would take the boat. Upon that return he discussed the matter of a sale with Walton and Mr. Staley, used-car sales manager of defendant. As to Staley’s participation in this conversation, plaintiff was asked: “ * * * did you seek him out or did Woody [Walton] seek him out or — ?” Answer: “No, Woody was talking to Mr. Staley. In other words, we were talking together then as three.” Plaintiff said that he would take the boat and asked if they would deliver it. Walton answered “No.” The price of $475 was mentioned in the conversation with Staley and he knew of plaintiff’s inability to then remove the boat owing to the lack of a trailer hitch; he indicated that it was satisfactory to sell the boat to plaintiff for $475. Plaintiff then paid $25 in cash on the price and said that he would return to remove the boat on the second day thereafter after procuring a trailer hitch with which to tow the boat. Staley volunteered that “possibly they could find a hitch that would fit my car that would enable me to take it home.”

“Q. And did he suggest a time for you to come back to get the boat ?
A. We discussed that, and I had to work Saturday at the Post Office, and after I got off work I told him that I would be out with the check, and I would have a way of taking the boat home possibly, and he said, well, he would try to have a hitch for me.
Q. Mr. Staley, is the person you’re referring to ?
A. That’s right.”

On that day plaintiff asked Walton and Staley if they had the title to the boat and if it was clear and in response they stated that “it was clear” and “they told me that the title was in the safe.”

When plaintiff paid his $25 he asked for a receipt; Walton looked around for some paper and found only a pad of form contracts for used car sales. On one of such forms he wrote out what plaintiff maintains is only a receipt for the sum paid, and :gave it to plaintiff stating that it was his receipt. As defendant contends that the instrument so delivered by Walton was an offer to buy the boat we digress here and set out the whole of the relevant parts of the instrument which was later put into evidence as defendant’s Exhibit A:

Plaintiff further testified that on the designated day he returned to take delivery of the boat; he was accompanied by a friend with a car equipped with the necessary hitch. Staley then advised plaintiff that they could not deliver the boat because it was mortgaged; no mention of the “receipt” above quoted was made. Plaintiff said that he would leave his deposit with defendant and that when the matter was cleared up he would still like to have the boat. Plaintiff departed but almost immediately returned for the purpose of talking to Mr. McMahon, president of defendant; he was informed that the latter was out of town and he then talked with Mr. Worn, defendant’s new car sales manager, who informed him that he thought the boat belonged to Mr. McMahon and was not for sale. Two days later plaintiff had a telephone conversation with Staley in which he inquired why he had gotten two different stories from the defendant. Staley responded that the boat was mortgaged and that plaintiff probably wouldn’t get it. That ended the conversation.

Mr. O’Brien, who accompanied plaintiff, corroborated plaintiff’s statement that Staley told plaintiff that he couldn’t have the boat and that there was a mortgage on it, ahd that there was no other reason given for refusal to deliver.

Foregoing for the moment consideration of the question of Staley’s authority, the initial question in this case is whether otherwise an oral contract for the sale of the boat existed before the “receipt” or “order” was executed. According to plaintiff’s testimony Walton had definitely told him that “they” had a boat for sale and, after exhibition and inspection, priced it to him at $495; that price was reduced to $475 after plaintiff found some minor defects; on the next day plaintiff definitely told Walton and Staley that he would take the boat at the price of $475. At this point the necessary elements of offer and acceptance were present to bring a contract into existence if plaintiff’s testimony is to be believed. Thereafter plaintiff paid $25 on the purchase price with a commitment to return the-Second day thereafter to pay the balance of the price,' totake delivery and to tow the boat away, all with the acquiescence of Staley. Plaintiff asked for a receipt for the $25 and in response to that request he was given the instrument in question, which if taken at face value would change the existent relationship of the parties, as testified to by plaintiff, into a mere offer by plaintiff to buy.

Walton testified that after the “receipt” or “order” was signed he told plaintiff that he would “submit the order to the house,” that is, “to A1 Staley,” and that he put it on Staley’s desk. At a later point, he spoke again of having “submitted the order.” His testimony by-passes any reference to a three-party conference — himself, Staley and plaintiff — as previously testified to by plaintiff, antedating the issuance of the “receipt.” Staley endeavored to confine his testimony concerning his knowledge of the whole transaction to the instrument placed on his desk by Walton; he testified that the “receipt” or “order” was in existence before he ever talked with plaintiff and that it came to him “originally” by Walton placing it on his desk. However upon cross-examination, although at first having no recollection of talking with plaintiff, upon further questioning he remembered that he discussed the sale of the boat with plaintiff, that the reason why plaintiff could not haul the boat away on the day the receipt was issued was the lack of a hitch, that the $475 deal was “all right for me” and that he told plaintiff that he was glad to get the boat out of the storage shed so that he could have room in the shed.

The conflict of the testimony of plaintiff on the one hand and that of Walton and Staley on the other is apparent. Plaintiff’s testimony would have the whole agreement completed before the receipt was issued by virtue of an offer made to him by Walton which plaintiff accepted the following day with the full acquiescence of Staley; Staley’s testimony would condense the whole matter into an unaccepted offer to buy. There was thus presented a problem of credibility. The trial judge found as a fact “That on January 30, 1964, defendant acting through its agent, Albert Staley, agreed to sell and plaintiff agreed to buy the said boat, motor and trailer for the sum of $475; the same to be delivered to plaintiff on February 1, 1964.”

Relying principally upon its contention that the evidence shows no completed agreement between the parties, defendant cites cases exemplifying the elementary proposition that for an offer to bloom into a contract the offer must be accepted. No quarrel can be had with that proposition. We are referred to situations where a prospective vendor devises an order form by whose terms an intending— and signing — purchaser is placed in the position of an offeror. Thus in Bronson v. Weber Implement Co., 135 Mo.App. 483, 116 S.W. 20, the intending buyer delivered signed order form reciting “The original of this order to be forwarded to Weber Implement Co., St. Louis, Mo., and is taken subject to its approval * * *. This order is taken and recommended for acceptance by Chas. W. Gray.” Similarly in Williams v. Emerson-Brantingham Implement Co., Mo.App., 198 S.W. 425, the order stated: “Original of this order to be forwarded to Emerson-Brantingham Imp. Co., and is taken subject to its approval.” In Twentieth Century M. Co. v. Excelsior Springs M. W. & B. Co., Mo.App., 171 S.W. 944, 946, the order read: “This agreement is not binding on the party of the first part [vendor] until approved by its own office at Milwaukee, Wis.” Likewise the order in International Filter Co. v. Conroe Gin, Ice and Light Co., Tex.Com.App., 277 S.W. 631, recited that “This proposal is made in duplicate and becomes a contract when accepted by the purchaser and approved by an executive officer of the International Filter Company, at its office in Chicago.”

It is plainly the privilege of a dealer, represented by salesmen, so to frame the order forms which it customarily uses as to make the existence of a contract dependent upon the doing of some act by the principal or at the principal’s head office. Where the terms of the order are such as to postpone the coming into existence of a contract until the doing of such act, the intending purchaser is only an offeror who has created a power in the alleged vendor which the latter may exercise or not as he chooses. Defendant’s exhibit A is clearly a form of this character, which it seems obvious, the defendant here generally uses in connection with the sales of automobiles. However the cases last cited are of no aid here, for the evidence in each showed that the intending purchaser stood in the position of an offeror, while here our initial question of fact is whether or not the offer was made from the side of the defendant, acting through Walton and ratified by sales manager Staley. If so, a contract existed anterior to the execution of the instrument in question. Additionally a major question here exists whether that instrument, delivered to plaintiff, was intended by the parties to embody anything more than a receipt for money paid. The latter question was answered by the trial judge in his finding that “Defendant’s Exhibits A and B constitute a receipt and memorandum of sale, and was not intended by the parties to constitute an offer by plaintiff subject to acceptance by defendant.” Hence both questions above posed were answered by the trial court favorably to plaintiff.

Upon the appeal from a judgment in a court-tried case it is the function of the appellate court to make its own findings of fact from a consideration of all the evidence in the case. However we are ever mindful of the command of Rule 73.01, V.A.M.R. that upon such a review “The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Where there is a sharp conflict in the testimony adduced we take due note of the fact that the trial judge had the witnesses before him and had the advantage of observing their general demeanor and manner of testifying as well as their possible self-interest. Accordingly great deference is accorded his findings unless the evidence clearly indicates to us an erroneous conclusion on his part. Upon a consideration of the whole record we find ourselves in accord with the trial court’s finding that an agreement of purchase and sale was entered into on January 30, 1964.

Among the trial court’s findings was one “That Albert Staley had apparent authority to make said sale on behalf of defendant.” Neither defendant’s motions nor its brief make complaint directed specifically to that finding. Defendant’s points are confined to the general proposition that no contract between the parties existed and that, because defendant had not accepted an offer by plaintiff. However since the corporate defendant can act only through agents, the existence of a contract binding on it depends upon the authority, actual or apparent, of the person purporting to act on its behalf. Therefore, inquiry must be made concerning the status of Staley.

The doctrine of apparent authority is one of wide-ranging application and embodies the general proposition that where a person has created such an appearance of things that it causes a third party reasonably and prudently to believe that a second party has the power to act on behalf of the first person the latter is thereby bound to the third person who relies on the appearance so created. In such case the appearance of power is the equivalent of expressly conferred power, insofar as third persons are concerned. Sometimes such appearance results from the first person’s course of conduct in which he allows the second person to perform a series of acts in his name although he has not given the second person any authorization to act in the specific instance. Johnson v. Hurley, 115 Mo. 513, 22 S.W. 492. Sometimes it results from the appointment of the second person to a type of position which ordinarily involves the authority to perform a certain function although no such actual authority exists . See Koewing v. Greene County B. & L. Assn., 327 Mo. 680, 38 S.W.2d 40. The rule cannot be stated in terms of specific fact situations for its application may be as varied as the activities of man. This Court has expressed the principle as “the general rule that the principal is bound by the acts of his agent when he has placed the agent in such a position that persons of ordinary prudence, reasonably conversant with business usages and customs, are thereby led to believe and assume that the agent is possessed of certain authority and that they may deal with him in reliance on such assumption. No one can question the principle of law that such acts and contracts of an agent as are within the apparent scope of the authority conferred on him, although no express or direct authority to do such acts or to make such contracts has been conferred, are also binding upon the principal.” Werner v. Welsh Co., Mo.App., 247 S.W.2d 311, 313; Wind v. Bank of Maplewood & Trust Co., Mo.App., 58 S.W.2d 332, 336. In the present situation one finds that the defendant took ownership of a boat as a trade-in on the purchase of an automobile, that it stored the boat in that portion of its premises where used automobiles, taken in trade, were stored and offered for sale. Thereafter a salesman, speaking on behalf of defendant, exhibited and offered to sell the boat to plaintiff. As salesmen of this type generally have no authority to make contracts on behalf of principals, we assume that the salesman here could not create in the plaintiff a power to bind the employer by the plaintiff’s acceptance. However in the employment hierarchy the used car sales manager Staley was the superior of the salesman and the used car sales manager ratified the conduct of the salesman. Thereupon the plaintiff accepted the offer so made.

Thus there is presented a setting, established by defendant, within which a person having a managerial position is expected to function and does function. When one is designated as the used car sales manager, a person dealing with him as such could reasonably believe that he had the authority to conclude sales transactions. In this connection we note the comments a and d to Section 27 of the Restatement of the Law of Agency Second :

* * * apparent authority can be created by appointing a person to a position, such as that of manager or treasurer, which carries with it generally recognized duties; to those who know of the appointment there is apparent authority to do the things ordinarily entrusted to one occupying such a position, regardless of unknown limitations which are imposed upon the particular agent * * *. Thus, a manager has apparent authority to do those things which managers in that business at that time and place customarily do, as to persons who know that he is a manager, although they do not know what powers managers in such a business have.”

Nor do we believe that the apparent authority of the sales manager is limited to transactions involving the sales of used automobiles. While the trade-in of a boat on the purchase of an automobile was of infrequent occurrence, we believe that under the circumstances of this case the boat could well be considered as falling into the same category as traded-in cars, insofar as apparent authority is concerned. The boat was admittedly a traded-in item and normally would be regarded as available for resale. It was as much a used, or secondhand, item as. a used car, with noticeable defects. It was stored in that part of defendant’s premises where used cars were stored. The price range, from $495 to $800, fell well within the range of offering prices of used cars and gave no notice that it was not available for purchase. From all this, one dealing with a sales manager could reasonably infer that the power of the latter extended to the disposition of trade-ins other than automobiles.

At this point we encounter a curious admixture of actual authority and apparent authority. The president of the defendant testified that both Walton and Staley would have authority to offer the boat for sale on January 30 if it were still an asset of the defendant. Upon redirect examination, in an effort to modify this admission, he testified:

“Q. * * * if A1 Staley or Woody were — were clothed with the authority to offer for sale anything other than a used automobile or used truck, you would have to discuss the price with them first, wouldn’t you? A. That’s correct.”

This testimony brings the situation to the borderline for application of the elementary rule that a third person dealing with an admitted agent is not bound by secret limitations upon the power of the agent of which the third person had no notice; perhaps it calls for direct application of that elementary rule. In any event the expressed limitation in no way aids the defendant’s case.

In this connection, note is taken of defendant’s argument that “it is most important to an industry engaged in sales to determine if it in fact can fix certain conditions to an offer before it ripens into a contract.” The privilege of a prospective vendor to fix such conditions has been well asserted in what is said above concerning the vendor’s devising of an order form which puts the intending purchaser in the position of an offeror. However if the vendor is the offeror — and we find that to be the situation here — such conditions must be expressed in his offer. Defendant’s argument continues: “If it [vendor] did not limit its own sales personnel to conditions it might very soon find its business in a financially impaired condition.” And that brings us around again to the simple proposition that a third person dealing with an agent is not bound by secret limitations which the principal places on the agent’s power. No matter how valid such limitations may be as1 between principal and agent they do not detract from the agent’s apparent authority. .

Defendant attacks the trial court’s finding of fact that on January 30, 1964, defendant owned and held as part of its inventory the boat in question. Defendant maintains that the boat was owned individually by a third person, Mr. McMahon, president of defendant. Defendant’s witnesses testified that the boat was taken into defendant’s inventory as a trade-in on the purchase of an automobile. McMahon testified that he personally bought the boat in the fall of 1963, that he had the title and the registration and that he paid in “the neighborhood of $500” for the boat. Wheri asked the location of the title document, he said: “I probably have it in my safe deposit box.” There was no other evidence of a transfer of the boat from the defendant ; no title document or certificate of registration was produced. McMahon had no recollection of the trade-in allowance. The trial judge by his finding plainly declined to accept this McMahon testimony at face value. Nor do we find that testimony to have such cogency as to require us to find differently from the trial judge.

Whether or not the defendant owned the boat on January 30, 1964, is immaterial. Defendant confuses a sale and a contract to sell. The former is a transfer of ownership, a conveyance of the property in goods; the ability of the purported vendor to transfer title depends either upon his own title or upon his representation, real or ostensible, of the real titleholder. But the capacity to enter into a contract to sell a particular chattel is in no way dependent upon the contracting (would-be) vendor having title. This is no place for the writing of a textbook upon sales of personalty. It is enough to note that, according to common-law principles, a contract to sell an identifiable chattel entered into by the owner directly or through an agent, real or apparent, of the owner, operates to convey instantly the title of owner-vendor to the purchaser unless the contract or a statute specifically provides otherwise. If the contracting (would-be) vendor has no title, he is nevertheless bound by his contract to sell — to procure the title and to transfer it to his contracting vendee or to otherwise procure a transfer of the title to that vendee. Consequently in this action for damages it is immaterial whether or not defendant had the title to the boat at the time the parties entered into the contract.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.

      . Restatement of the Raw of Agency Second, Comment c to Section 49: “Inferences from agent’s position. Acts are interpreted in the light of ordinary human experience. If a principal puts an agent into, or knowingly permits him to occupy, a position in which according to the ordinary habits of persons in the locality, trade or profession, it is usual for such an agent to have a particular kind of authority, anyone dealing with him is justified in inferring that he has such authority, in the absence of reason to know otherwise. The content of such apparent authority is a matter to be determined from the facts.”

      . And, of course, the offeror as buyer may, in his offer, express such limitations on the power of anyone else to act for him as he chooses. Werner v. Welsh Co., supra.


author: MAUGHMER, Commissioner.

text:
    Charles V. GICINTO, Plaintiff-Respondent, v. Marie Dorothy GICINTO, Defendant-Appellant.
    No. 24590.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Henry H. Fox, Jr., Kansas City, for appellant.
    Donald W. Browne, Cope, Browne & Cope, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff husband sued for divorce. The defendant wife countered With a petition for separate maintenance. The judgment granted plaintiff a divorce, dismissed defendant’s cross action for separate maintenance and awarded custody of the 16 year old son to the defendant with an allowance of $100 per month for his support and maintenance. Defendant on her appeal asserts that plaintiff failed to prove that he was the innocent and injured party and prays for a reversal outright of the decree of divorce. No other assignment of error is presented.

Charles V. Gicinto and Marie Gicinto were married to each other on January 31, 1942, in Olathe, Kansas. Plaintiff said that his wife on four different occasions in 1946, 1949, 1952 and 1953, filed suits against him for divorce or separate maintenance. However, each time their difficulties were partially resolved and no action was pressed to final determination. These parties finally separated about March 1, 1965, and on November 15, 1965, plaintiff filed the instant suit for divorce. Three children were born to the union but at the time of trial on March 11, 1966, two were of age and emancipated. The other, Marion Carl Gi-cinto, was 16 years of age.

Apparently Mrs. Gicinto has never been employed outside of the home. At the time of the marriage, Mr. Gicinto was a truck driver. For several years prior to the divorce he worked as automobile salesman for Miller Pontiac in Kansas City. On July 8, 1953, plaintiff was sentenced to serve a ten year prison term in the Federal Penitentiary at Leavenworth, Kansas. He was incarcerated in that institution for six years and until about October, 1959, when he was released on parole. During this period his wife received federal aid of $100 per month for support of the minor children. This income was supplemented by help from relatives.

The evidence shows that plaintiff provided for his family adequately, from a financial standpoint, except for the time he was in prison. He was injured while driving a truck prior to his imprisonment and was paid $6500 in damages. After his release from Leavenworth he resumed life with his family and worked first as a truck driver and then as an automobile salesman. He had substantial earnings. He estimated that his earnings averaged $600 per month gross. The W-2 report of wages received in 1965 shows that he was paid $7,758.12. His income tax return for 1963, a period during which he was driving a truck, and prepared by H & R Block, showed a gross income of $8,728. It is conceded that he paid the bills and supported his family. His parole was terminated on November 12, 1965. From March 1, 1965, the date of the final separation, until parole termination date, he paid the family house rent, household bills, doctor bills and $45 monthly in addition as support for Marion, the minor child. After the suit for divorce was filed and under order of court he paid $160 monthly as temporary alimony and $60 monthly as child support. It was necessary for plaintiff to secure approval or consent from his parole officer in order for him to live separate and apart from his family. This permission was granted but on condition that the family support contributions as herein listed be made.

Mr. Gicinto was asked to “tell the circumstances pertaining to the separation.” We summarize his answer: “She and my son Joey gave me the ultimatum to move out. They told me to move out or they were going to put my clothes out”. “They put new locks on the doors so I couldn’t come in.” “Well, she was constantly arguing with me, falsely accusing me at all times of going out with other women when I was at work trying to sell a car. Then when I was driving on the road I’d notify her every night where I was at, where I was staying, called her every night. There was no girl there I was staying with but she would call there all hours of the morning, three or four o’clock in the morning and get me up and accuse me of being with Helen or with someone else; just always degrading me, always telling friends, people I done business with that I was an ex-convict. I wasn’t to be trusted. I was no good. Just constantly arguing with me all the time, making my life, kept me in such turmoil I couldn’t no longer sell cars or even work. I would be constantly pushing her off, trying not to argue with her, her false accusations. She kicked my shins, tried to argue, she pinched me, kept me up all hours of a night, constantly pinched me, kicked me. She threatened that she would send me back to prison and called Mr. Owens, my parole officer”; “they almost succeeded by calling a man on some checks on account they had bounced * * * I found two hundred some dollars in checks written on my account signed by my son Joey”; “Joey admitted this to the parole officer.” Plaintiff said his wife called his boss and “all the people I sold cars to,” “said she was going to bankrupt me, break me, destroy me.” Plaintiff said his wife and sons charged $2520.94 to him at Macy’s. “She was cold and indifferent. She wouldn’t have nothing to do with me”; “she said I was an old man, was this and was that, just everything; just didn’t like me, * * *. She hated me, she couldn’t stand me.” Plaintiff said when he first came home from Leavenworth defendant was living with her folks. “I got extra jobs, bought them a house in Independence, new furniture, and an automobile”; “they didn’t like to live out there and Marion wouldn’t go to school out there. He transferred to Northeast and I had to pay $225 tuition and she drove him back and forth,” “then I rented a house at 326 North Quincy for $95 a month. I had to sell the house at a loss.” Mr. Gicinto said he bought a life insurance policy on his youngest son when he was born but the insurance man told him his wife had signed his name and cashed in the policy.

Mr. Earl Miller, President of Miller Pontiac, testified that Mrs. Gicinto called him “possibly two or three times to inform me what was going on, did I know what was going on”; “I don’t recall she actually asked me to fire Charlie”. Mr. Miller said she made reference to his going out with other women. He said that in his business association with Mr. Gicinto he had found him to be honest. Mr. Donald Sloan, who worked with Direct Transports when plaintiff was a driver there, said Mrs. Gicinto told him “she would like to put Charlie away or get even with him.” He also heard her accuse her husband of running around with other women. Clarence Gi-cinto, plaintiff’s brother, said defendant called him on numerous occasions about 4:00 a. m., complained about Charlie, said she was going to put him back in jail. He said she called him (the brother) an s. b. right on the street.

Mrs. Gicinto testified that plaintiff would come home “at two or three in the morning. He had been drinking. He had makeup all over his shirt and lipstick on his face. He never had an explanation.” She admitted that she went to the home of Rose Ann Leach (one of the women she accused her husband of running around with) at 4:00 p. m. Her husband and Rose Ann’s two small children were there. The defendant just opened the door and walked in. Mrs. Gicinto said that at the time she remarked to them: “I guess I caught you right. You told me Charlie had never been in your house.” It was plaintiff’s explanation that this woman and two others were “bird dogging”; that is, locating prospective automobile purchasers for him. Defendant says that she has asthma and diabetes and that the young son also has asthma. She admitted having had the locks on the house changed. She said the reason was that they heard the landlord downstairs one day and didn’t want him to have access to their quarters. However, she admitted she never gave a key to her husband and her 23 year old son Joey ordered him to leave. She admitted the large unpaid Macy account but said it was an accumulation of several years. She and her son Joey accused plaintiff of regular drunkenness, and said he often cursed Mrs. Gicinto. Joey said he saw his father take Rose Ann Leach home one afternoon and saw her kiss him. Mrs. Gicinto disclaimed any knowledge as to what happened to the youngest child’s insurance policy although she denied having cashed it.

The scope of appellate review in a divorce case was aptly set forth in these words (Heibel v. Heibel, Mo.App., 366 S.W.2d 37, 40):

“The scope of this court’s review in divorce cases is too well known to require citation. We try such cases de novo on the record before us and reach our own conclusions. We will apply the rule of deference where there is a sharp conflict in the evidence since the trial court had an opportunity to observe the witnesses upon the stand, but this does not mean that we can invoke that rule to avoid our duty and responsibility to reach our own conclusions from a review of the evidence.”

For indignities to amount to sufficient grounds for divorce they must be such “as shall render his or her condition intolerable.” Trivial quarrels and disagreements due to a lack of conciliatory temper in both parties cannot be reckoned as “intolerable indignities,” and constitute no grounds for divorce. Capps v. Capps, Mo. App., 65 S.W.2d 661, 663.

“In divorce action by husband on ground of indignities, evidence, which revealed that indignities complained of were scattered and remote and inconsequential, was not sufficient to establish a settled or continuous course of conduct which indicated hatred, contempt, or estrangement or to establish any great injury suffered by plaintiff”. Moore v. Moore, Mo.App., 337 S.W.2d 781, 782, syll. 9.

On this subject we quote from Heaven v. Heaven, Mo.App., 363 S.W.2d 33, 39:

“Indignities sufficient to justify the granting of a divorce ordinarily must amount to a continuous course of conduct as distinguished from a single act or occasional acts. In addition, the acts relied upon must amount to a species of mental cruelty, and should demonstrate a course of behavior by one of the parties toward the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relationship. Clark v. Clark, supra [Mo.App., 306 S.W. 2d 641]; Coleman v. Coleman, Mo.App., 318 S.W.2d 378, 381. It should also be observed that a party to be entitled to a divorce should be an innocent and injured party but the courts of this state have repeatedly held that a party to a divorce action is not deprived of his status as an innocent party simply because his conduct has not been perfect at all times. To prevent a person from being adjudged an innocent and injured party, his or her behavior and conduct must have been such as to entitle the other spouse to a divorce. Elgin v. Elgin, Mo.App., 301 S.W.2d 869, 872”.

Applying those definitions to the evidence in the instant case, how should this appeal be decided ? Has the plaintiff husband been subjected over a long period, to such indignities as to make his condition in life intolerable? That is the ultimate question. The cold, printed record substantiates many of the plaintiff’s charges. It is quite clear that except for the time he was in prison, plaintiff worked hard and regularly. He had a substantial income. He was respected by his employer, Mr. Miller. All this belies the accusation that he was regularly drunk. He devoted his income to the support of his family. He bought them a home and when they objected to living in Independence, rented a house in Kansas City. He paid all of their necessary bills, bought furniture and an automobile for the use of Mrs. Gicinto and their son. He paid checks to which his son had improperly signed his name. He paid the excessive account at Macy’s. It is established that defendant called or visited his employer and demeaned plaintiff to him. She threatened and boasted that she would send him back to prison. There was testimony that she said these things to plaintiff, to his brother and to Mr. Sloan, a fellow employee at the trucking company. This behavior continued over a period of years. She and her 23 year old son locked him out of the house when he was paying all the bills and after doing these things she sought in court not a divorce, but separate maintenance. This is in keeping with plaintiff’s charge that she regarded and treated him as just a meal ticket.

It is conceded that plaintiff fully supported his family financially. There is no charge that he ever resorted to physical violence against his wife. The only charges of misbehavior against plaintiff are: (1) he was regularly drunk. It is difficult to accept this charge at full face value in view of his regular, productive and satisfactory work record; (2) he associated improperly with other women. We do not know if this is so; (3) he cursed and argued with defendant. It seems likely this is true; (4) he is an ex-convict. This, of course, is true, but this fact should not permanently deprive him of his marital rights, including his right to conjugal respect and consideration.

On some of the charges and counter charges there is a sharp conflict in the testimony. We do and are required to defer to the trial court as to which of these disputed versions shall be accepted. This is done because the trial court had the opportunity to observe the witnesses. The trial judge specifically stated in the record that in his opinion “plaintiff, Charles Gicin-to, is the innocent and injured party in this case; that the allegations of his petition have been supported by the evidence”. From a reading of the record we are definitely inclined toward the same conclusion. Certainly we cannot under this evidence and after according due deference as to credibility, rule that the trial court erred in finding for plaintiff. The evidence on behalf of plaintiff, if believed, showed intolerable indignities, which continued for years and indicated hatred, contempt and family estrangement. These indignities were neither single nor occasional acts, but grew into a continuous course of conduct. We believe that Mr. Gicinto was the innocent and injured party and is entitled to a decree of divorce.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: SPERRY, Commissioner.

text:
    Charles M. WELLS, Administrator of the Estate of Ella S. Harris, Deceased, Plaintiff-Respondent, v. John T. HARRIS, Defendant-Appellant.
    No. 24538.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    John J. Phillips and Guy G. Rice, Independence, for appellant.
    Charles R. Svoboda, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff is the administrator of the estate of Ella S. Harris, hereafter referred to as deceased. John T. Harris, defendant, is the surviving husband of deceased who died of gunshot wounds fired from a shotgun in the hands of defendant. There were two insurance policies on the life of deceased in both of which defendant herein was named as beneficiary. Suit thereon was instituted by plaintiff, in two counts. The proceeds, $6,000.00, were paid into court and the insurance companies withdrew. Plaintiff and defendant agreed to litigate the issues between themselves. Summary judgment was entered in favor of plaintiff and the full sum involved, $6,000.00, was awarded to plaintiff. From such judgment defendant appeals.

In plaintiff’s petition, filed against the insurance companies (in two counts), he alleged “that on or about May 12th, 1963, Ella S. Harris died as a result of gunshot wounds intentionally inflicted on said date by John T. Harris; that said John T. Harris was charged with the murder of Ella S. Harris, and pleaded guilty to a charge of manslaughter, in the circuit court of Jackson County, Missouri”.

Defendant Harris filed answer. He admitted the issuance of the insurance policies. He alleged that he was, on May 12th, 1963, the legal husband of deceased; that she, on that date, died of gunshot wounds; that he was the sole beneficiary of the policies; that deceased died as the result of the accidental, not intentional, discharge of a shotgun. He prayed judgment for the full amount of $6,000.00.

Plaintiff filed “request for admission of facts”, pursuant to Rule 59.01, and defendant filed response thereto, under oath. From an examination of these instruments it appears that:

1.Deceased died May 12th, 1963, as a result of a gunshot wound inflicted by a shotgun;
2. Said wound and her death occurred in Kansas City, Jackson County, Missouri ;
3. At the time the gun discharged and inflicted the lethal wound, the gun was in the possession of, and was being held by defendant;
4. Defendant denied that he was thereafter charged with first degree murder;
5. Defendant pleaded guilty to a charge of manslaughter for the killing of deceased and was sentenced and paroled;
6. Plaintiff and defendant were legally married but were separated and not living in the same household when the lethal wound was inflicted on deceased;
7. At the time the wound was inflicted on deceased, a divorce action was pending between defendant and her;
8. Defendant denied that the gun was intentionally discharged thereby causing the death of the deceased.

Thereafter, plaintiff filed his first amended petition wherein it was alleged that Ella Harris died of gunshot wounds inflicted upon her by defendant; that defendant was thereafter charged with murder and that he pleaded guilty to the charge of manslaughter “and was convicted”. He also pleaded other facts, heretofore mentioned, relative to the issuance of the insurance policies, the payment of the proceeds thereof into the court, that defendant was not legally entitled to the proceeds of the policies because he caused deceased’s death and was thereafter charged with it and pleaded guilty to manslaughter.

Defendant filed no answer to the amended petition. Plaintiff moved for summary judgment, alleging that, under the pleadings and undisputed facts herein, defendant, as a matter of law, has no right, title or interest in the proceeds of the policies, and prayed for judgment awarding said proceeds to plaintiff. Defendant filed “suggestions” in opposition to the motion. He filed no deposition or affidavit.

Plaintiff contends that, since defendant admitted that deceased died of wounds caused by the discharge of a shotgun held by him at the time, and since he pleaded guilty to a charge of manslaughter based thereon upon which plea he was sentenced and since defendant offered no evidence challenging said facts, the judgment was properly entered.

In Brummet v. Livingston, Mo.App., 384 S.W.2d 101, 103, we held that a summary judgment may be entered only when the party seeking it shows, by unassailable proof, that he is entitled to judgment as a matter of law. The proof submitted should leave no room for controversy and should show, affirmatively, that the other party would not be entitled to recover under any discernible circumstances.

Our duty is the equivalent of reviewing a court tried or equity case and, eventually, of resolving the question of the sufficiency of the evidence to support the summary judgment and, finally, if necessary, of entering such judgment as should have been given. Brown v. Prudential Insurance Co., (S.L.Mo.App.), 375 S.W.2d 623, 628. A summary judgment may be entered after the pleadings are filed and the issues made up.

Manslaughter is defined (all references are to R.S.Mo.1959 and V.A.M.S.) by Section 559.070 as follows:

“Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter”.

Justifiable and excusable homicide are ■defined in Sections 559.040, and 559.050. Specific situations and conditions constituting manslaughter are set out in Chapter 559. The punishment for the crime of manslaughter is prescribed in Section 559.-140.

“Persons convicted of manslaughter shall be punished by imprisonment in the penitentiary for not less than two nor more than ten years, or by imprisonment in the county jail not less than six months, or by a fine not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months.”

Defendant says that, under the statutes of Missouri, “manslaughter may be intentional homicide or it may be a crime of culpable negligence”. A reading of the statutes establishes the truth of that statement. It is also true, as defendant says, that plaintiff, in his motion for summary judgment, relied wholly upon the fact that defendant pleaded guilty to manslaughter as barring his right of recovery upon the insurance policies. Defendant does not contend that he may recover if the killing in this case was an intentional homicide as distinguished from one due to culpable negligence.

It is now well established in the law of Missouri that one who takes the life of another “without lawful provocation or excuse”, i. e., intentionally, can not benefit from such wrong by inheriting property from such deceased or otherwise participating in the benefits of decedent’s estate. See In re Laspy’s Estate (McCallop v. Laspy), Mo.App., 409 S.W.2d 725; Barnett v. Couey, 224 Mo.App. 913, 27 S.W.2d 757 and Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641, 16 L.R.A.,N.S., 244. It appears that Missouri courts have not been called upon to apply the principles laid down in the foregoing cases to the beneficiary under an insurance policy on the life of a deceased killed by the beneficiary. However, the federal courts in Missouri have applied these principles to defeat recovery by such a beneficiary. See Connecticut Fire Insurance Co. v. Ferrara, 8 Cir., 277 F.2d 388; Minnesota Mutual Life Insurance Co. v. James, D.C., 202 F.Supp. 243; General American Life Insurance Co. v. Cole, D.C., 195 F.Supp. 867 and 29 Am.Jur. Insurance, Section 1643 page 725.

If the record in this case showed that defendant did in fact plead guilty to a charge of intentionally killing deceased, then, under the principles laid down in In re Laspy’s Estate (McCallop v. Laspy), Mo.App., 409 S.W.2d 725, supra, and other authorities cited in the foregoing paragraph, he could not recover the proceeds of the insurance policies here in issue. If, on the other hand, defendant was in fact charged with and entered his plea of guilty to, some form of unintentional homicide such as manslaughter by culpable negligence, then we are faced with an entirely different problem.

The facts as to the crime with which defendant was charged and the nature of the crime of manslaughter to which he entered his plea of guilty are not developed in the record before us, in spite of the obvious fact that evidence thereof in the form of court records in the criminal case are readily available. Plaintiff alleges that defendant was charged with murder and defendant denied under oath that he was charged with first degree murder. Thus we are left to speculate as to what the true facts are, and if we were to attempt to decide the issue submitted by the parties we would be forced to reach our decision on a purely hypothetical basis. This we decline to do.

In this situation plaintiff has not shown by unassailable proof that he is entitled to judgment as a matter of law and the trial court erred in granting summary judgment in this state of the record with such a glaringly unresolved fact issue.

The judgment is therefore reversed and the cause remanded.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.


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    Charles B. CASH, Respondent, v. CATHOLIC DIOCESE OF KANSAS CITY-ST. JOSEPH, a Missouri Corporation, Appellant.
    No. 24577.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.

      Downey, Sullivan & McCormick, Leo McCormick, Kansas City, for appellant.
    Charles B. Cash, Kansas City, for respondent.
   JAMES W. BROADDUS, Special Commissioner.

On February 19, 1965, plaintiff filed suit in which he sought to enjoin defendant corporation from erecting on property owned by it a building for occupancy by teaching nuns of a parochial school, and from using the same as their residence as being in violation of private real estate restrictions. Plaintiff prevailed below and defendant has appealed.

The facts show that on January 28, 1955, the James H. Stanton Construction Company, Inc., being the then owner of a tract of land in Clay County caused the same to be platted and laid out in lots and blocks and designated as “Sherwood Estates”; said plat was duly filed for record with the Recorder of Deeds of Clay County. On the same date the Construction Company placed certain restrictions on the property then platted as “Sherwood Estates.” The Declaration of Restrictions provides that it is binding upon the Construction Company, its successors and assigns, and all parties claiming by, through or under it for a period of 25 years from the date of the ’instrument.

The restriction which is here involved reads as follows: “The lots shall be used for detached single family dwellings only.”

Plaintiff is the owner of Lot 10, Block 15, Sherwood Estates and has erected a house thereon and is occupying the same as a residence for himself and his family. Defendant is the owner of four lots in said subdivision.

The parties stipulated that defendant plans to erect on its property a building for occupancy by teaching nuns of the Roman Catholic Church; that said residence will have nine to eleven residents who are members of a Catholic Religious Order for women; that “said residents will teach in the elementary grade school of St. Gabriel’s Catholic Church located on premises separate from that on which faculty residence is to be located. Within said residence will be located separate sleeping rooms and common housekeeping facilities for the residents. In addition there will be located a chapel for the convenience of the residents to meditate and worship in their faith.

“Said residence or Convent is under the supervision and managerial direction of a nun commonly referred to as the ‘Mother’ or ‘Superior’ who usually remains in that capacity for a minimum period of one school year. The Mother or Superior sets the usual hours for meals, religious devotion and recreation, both within and without the Convent and is responsible for the management of the Convent’s day to day living expenses. All of the nuns residing at the Convent are members of the same order of nuns and are subject to direction of the Mother or Superior and have the obligation of obedience to her while assigned under her care. The Mother or Superior assigns the household duties to various of the nuns according to her judgment and to their capabilities. The nuns take their meals in a common dining room. The meals are prepared under the direction of one of the nuns whose responsibility is the securing of the foodstuff and its preparation for meals. Said nun also has the primary responsibility with regard to the cleaning of clothing and linen and is assisted in these duties by other nuns.”

Exhibit B shows the nature of the structure proposed to be erected by defendant. It is to be a full two story building containing 13 bed rooms, plus large central bath and toilet facilities, an office, a chapel, a community room, a parlor, a dining room, kitchen, pantry and storage facilities, plus additional laundry, storage and recreational facilities in the basement. The plot plan indicates that the structure would contain approximately 6,000 square feet of floor space exclusive of the walkout basement area.

We are mindful of the general rule relied upon by defendant that restrictive covenants will not be extended by implication to include anything not clearly expressed in them, and if there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property. As stated, however, by this court in the case of Jones v. Haines Co., Kan., 371 S.W.2d 342: “The principle that restrictions as to the use of real estate should be strictly construed and doubts resolved in favor of the free use of property should never be applied in such a way as to defeat the plain and obvious purpose of the restriction.”

The rule which governs the instant case was stated by our Supreme Court in the case of Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 129 A.L.R. 1094.

“The test of the meaning of words commonly used should be their ordinary and popular meaning and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people.”

The Trial Judge in his “Reasons for Decision” stated:

“Would most people in this community understand ‘single family dwelling’ to include the proposed building? If we can answer that question, the dictionary definitions of the individual words become unimportant.

“Many words have one or more restricted or specific meanings, as well as a more general meaning that includes more than one of the specific meanings. But ‘popular’ usage has a tendency to confine the use of a word to only one meaning, unless there is a clear contrary indication from the context or circumstances. This is frequently accomplished by a process of elimination by which popular usage accepts other words to express all the meanings, except one. The word ‘building’ includes, among others, (1) a structure by which an area or areas is enclosed by floors, walls, ceilings and roofs, (2) a structure which permits a train to traverse a river and (3) a structure which supports a flag at its top. But in popular usage, most people would think you intended the first meaning if you used the word. They would expect you to say ‘railroad bridge’ and ‘flagpole’ if you intended to convey the latter two meanings. ‘Highway’ may be used to describe any way open to the public, but its popular meaning has been restricted by the use of such words as ‘street’, ‘boulevard’, ‘avenue’, ‘sidewalk’, ‘footbridge,’ etc.

“With regard to the use to which a building is put, there is in popular usage many words and combinations of words which permit us to be specific, and make it unnecessary to rely on broad and all-inclusive words and expressions. We have office buildings, hospitals, courthouses, taverns, clothing stores, supermarkets, etc. To describe places where people live we have the words home, residence, dwelling, single family dwelling, two family dwelling or duplex, flat, apartment building, hotel, motel, inn, rooming house, boarding house, sorority house, fraternity house, club, barracks, and possibly others.

“There can be no argument with the proposition that a building for occupancy by a group of people, all of whom are related to one another by blood or marriage, might properly be described as a ‘single family dwelling’. We believe that the proposed residence for nuns may not be so described, if for no other reason, because there are in common use other words that describe such a building without resort to a word that has another widely accepted meaning. The residence for nuns might be described as a boarding house, sorority, or club. Or if one wanted to emphasize the religious status which its occupants would have in common, one might call it a convent, as it is described in Exhibit B, an architect’s plan of the proposed building. But would most people describe the nuns that live there at a particular time as a ‘family’ or their residence as a ‘single family dwelling’ ? We think not.”

Your Special Commissioner has reached the same conclusion.

The parties have cited a number of decisions in which the Court interprets the word family. Most of those cases are from other jurisdictions. They are distinguishable from the instant case. The language which the courts were called upon to construe in the cases was not the same as in the instant case, and in some of them there were circumstances which controlled the meaning of the word, such as the purpose of a statute including the word, or a definition contained in the same ordinance in which the word appeared.

Your Special Commissioner recommends that the judgment be affirmed.

PER CURIAM:

The foregoing opinion is adopted as the opinion of the Court and the judgment is affirmed.

All concur.


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    Adele E. RODEKOHR et al., Plaintiffs-Respondents, v. Trolius GIBSON et ux., Defendants-Respondents, Regional Realty and Investment Company, a Corporation, Defendant-Appellant.
    No. 24564.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.

      Martin B. Dickinson, William Marsh, Kansas City, for appellant.
    James H. Ottman, Russell S. Noblet, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondents.
   JAMES W. BROADDUS, Special Commissioner.

This is an appeal by Regional Realty and Investment Company, one of the defendants, from a judgment in a court-tried case declaring that appellant Regional holds as trustee for plaintiffs-respondents Rodekohr a note made by defendants-respondents Gibson for $15,000, on which $255 was to be credited, and ordering said note to be assigned to respondents Rodekohr and delivered to them with the deed of trust securing said note.

The case was tried on the pleadings and a stipulation of facts, which stipulation incorporates several documentary exhibits.

The issue is whether appellant Regional or the plaintiffs Rodekohr must bear the loss resulting from the defalcation of a real estate broker of $14,198.15, the net proceeds of a loan made by appellant Regional to defendants Gibson in connection with the latter’s purchase of certain real estate from the plaintiff’s Rodekohr.

Plaintiffs Rodekohr owned the real estate at 6042 Indiana Avenue in Kansas City. On April 27, 1963, they listed their property for sale with Kenneth C. Conway Realty Company, and Kenneth C. Conway, the proprietor of said business, obtained an FHA appraisal of the property for loan purposes. On August 21, 1963, Conway obtained an offer of $15,500 from defendants Gibson, which was accepted by plaintiffs Rodekohr. Said parties promptly executed a real estate contract. Under the contract the earnest money was deposited with Conway, and the contract was to be closed at his office by delivery of a deed and payment of the purchase price.- It was “to be financed on an FHA loan for thirty years”. Before execution the contract was examined and approved, without change, by plaintiffs’ counsel.

Conway prepared the necessary FHA loan application documents and submitted them to appellant Regional, which agreed to make the desired loan. After obtaining a title report, Conway asked plaintiffs to send in their warranty deed. On September 21, 1963, plaintiffs executed their deed conveying the property and delivered the deed, with no directions or instructions, to Conway so that the matter could be closed. Plaintiffs knew that their deed conveyed their title, and that they were not to receive the balance of the purchase price at that time. On the same day the defendants Gibson executed a note for $15,000 payable to appellant Regional, with a deed of trust securing the same, and delivered them to Conway. On September 23, 1963, Conway obtained from plaintiffs approval of the loan discount of $450, of which document appellant had no knowledge. Conway at the same time informed plaintiffs of other expenses chargeable to them, and obtained their authorization to deduct and withhold the same.

The warranty deed, note, deed of trust and other documents, not including a sellers closing statement, were sent by Conway to appellant, which forwarded the warranty deed, deed of trust, and note to McDaniel Title Company for recording, and the deed and deed of trust were filed for record on September 27, 1963. Appellant had.no direct contact with either plaintiffs or defendants Gibson and received no instructions or documents from either of said parties except through Conway.

On October 4, 1963, appellant issued its check for $14,198.15, being the net proceeds of the loan, according to its statement, to Kenneth C. Conway Realty Company, and Kenneth C. Conway acknowledged receipt of the check and that his company would be responsible for disbursing all of the funds except selling expenses chargeable to plaintiffs. On the same day Conway told plaintiffs they should have their money either the following Monday or Tuesday. Plaintiffs expected no one else to come to them, but expected Conway to have the money for them on one of the days stated. On the same day, October 4, 1963, Conway cashed said $14,198.15 check, and, so far as known to any of the parties, appropriated all the money to his own use.

The only question involved here is: Does an agent’s possession of and authority to deliver a warranty deed authorize payment to the agent, either in cash or by check made payable to the agent ?

In Missouri and in the majority of the other jurisdictions a real estate broker, under the ordinary contract of employment giving him authority merely to produce a purchaser willing to contract with a seller upon the terms prescribed, or a broker whose authority is specifically limited to finding a purchaser for the property, has no implied authority in the absence of additional circumstances to receive from the purchaser the purchase price in the form of a check made payable solely to the broker. Stewart v. Wood, 63 Mo. 252; Compton v. Vaughan, 222 S.W.2d 81, Mo.Sup.; 12 Am.Jur.2d, 832, sect. 80.

Appellant does not contend that there was anything in the contract from which it might be implied that the agent had authority to receive payment for the warranty deed. It cannot imply such authority from the fact that the plaintiffs signed a written authorization for appellant to withhold a three per cent loan discount in the amount of $450, because such authorization was never seen by appellant. It could not have been implied by appellant from the fact that Conway may have ordered a title report from a title company, because there is nothing in the stipulation of facts to indicate that appellant had any knowledge one way or the other of that fact. Appellant cannot contend that the agent had such implied authority from anything that was stated to or shown to them by plaintiffs, because appellant had no instructions, directions or information, either written or oral, from plaintiffs other than the contract and the deed.

It is common knowledge that it is not the usual and customary practice in the lending or real estate trades for a lender to pay for a warranty deed by a check made payable to whoever delivers the deed. Neither is it the usual practice or custom' to pay the proceeds of a loan in cash or by check made payable to whoever delivers to the lender a note and deed of trust. Under normal business practices the lender would have made its check out, not to the messenger or agent bearing the document, but, rather, to the principal to whom the amount was due.

Appellant made it possible for Conway to perpetrate the fraud which resulted in the loss. The well settled rule is that when one of two innocent persons must suffer for the wrongful act of another, he must suffer who placed the party doing the wrong in a position to do it. Baade v. Cramer, 278 Mo. 516, 213 S.W. 121; Pashalian v. Big-4 Chevrolet Co., 348 S.W.2d 628, Mo.App.

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

PER CURIAM:

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

All concur.