author: ROBERT G. BRADY, Commissioner.

text:
    Jacqueline GUDORP, Plaintiff-Respondent, v. The CITY OF ST. LOUIS, a Municipal Corporation, Defendant-Appellant.
    No. 31241.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.
    Rehearing Denied Dec. 9, 1963.

      Thomas J. Neenan, City Counselor, John J. Horgan, Associate City Counselor, St. Louis, for appellant.
    Stewart D. Flanagan, Harold O. Pien-ing, St. Louis, for respondent.
   ROBERT G. BRADY, Commissioner.

The respondent instituted her action against the City of St. Louis to recover damages for injuries she sustained as a result of a fall allegedly caused by the City’s negligence in failing to remove snow and ice from a portion of a sidewalk in the City. The jury’s verdict was for respondent in the amount of $5,000.00 and the City appeals. The plaintiff will hereafter be referred to by her designation at trial and the appellant will be referred to as the City.

The City raises only one point upon this appeal. It contends the trial court erred in overruling its motion for a directed verdict offered at the close of all the evidence. We will state the facts in the light most favorable to the plaintiff, giving her the benefit of her own and of that portion of the City’s evidence that aids her. In addition, she is to receive the benefit of all reasonable inferences to be drawn from that evidence provided those inferences do not conflict with her own testimony or with her theory of recovery. Bronson v. Kansas City, Mo.App., 323 S.W.2d 526; DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628. Our statement of the factual situation will be further limited to that bearing upon the negligence submitted in plaintiff’s verdict-directing instruction. Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124; Taylor v. Hitt, Mo.App., 342 S.W.2d 489. The negligence submitted in that instruction was that the City, having constructive knowledge that this sidewalk had on it rough and uneven snow and ice covered with a thin layer of fallen snow, negligently failed to remove the snow and ice although in the exercise of ordinary care it had time to do so after receiving such knowledge and prior to plaintiff’s fall. It is well settled that we are not to convict the trial court of error in refusing to direct a verdict unless all reasonable men in the exercise of a fair and impartial judgment would reach the same conclusion. Bronson v. Kansas City, supra. The City contends that the evidence is insufficient to authorize submission of that issue to the jury. In view of the nature of the City’s single allegation of error, the rules of appellate review governing our view of the evidence, and the determinative issue of this appeal under what are herein held to be the applicable rules of law, our statement of the factual situation will be very brief.

There was no snow or ice on the sidewalks in the City of St. Louis prior to Thanksgiving Day, November 27, 1958. It began to snow in the City of St. Louis at approximately 11 p. m. on that day and continued to snow until about 11 a. m. on Friday, November 28th. The total fall in the City was 3.9 inches. The plaintiff fell at 4:30 on Saturday afternoon, November 29th.

Plaintiff had driven her automobile from her home in St. Louis County to the intersection of Duke and Gravois in the City of St. Louis, intending to shop in that area. Her testimony was that the streets upon which she drove were clear where automobiles had been running, but there was some snow and slush on the remaining portion of the streets. Duke was a one-way street running in a generally east/west direction and the plaintiff parked on the north side of the street with the front of her automobile facing eastwardly toward Gravois. To go to the stores fronting on Gravois, plaintiff walked eastwardly on the sidewalk along the north side of Duke. This sidewalk was clear. When she finished shopping and was ready to return to her automobile, plaintiff was south of the Duke and Gravois intersection. She walked northwardly on the west side of Gravois to the intersection and then turned west-wardly on Duke, walking on the south sidewalk. Near the intersection, this sidewalk was clear but further west it was covered with ice which started at an alley and extended about 50 feet toward Gravois. At the east edge of the alley there was a 2-car garage. In front of this garage the snow and ice was rough and uneven due to people walking across it and from automobiles being operated over it. It had a thin layer of fallen snow over it. It was while she was upon this stretch of sidewalk in front of the garage that plaintiff fell. The sidewalks in the City were generally clear of snow.

The plaintiff’s husband testified that on Saturday afternoon after he had been informed of his wife’s fall, one of his neighbors drove him to the scene of this accident. The amount of snow on the streets had diminished but there was still some snow on the streets out of the main line of traffic and the ground was covered. The plaintiff’s witness, Schaper, testified that on this Saturday there was ice on the sidewalk where plaintiff fell and also out into the street so that the ambulance attendants had a difficult time in keeping their footing. The presence of snow and ice on Duke on Saturday was also confirmed by other witnesses.

The official records of the weather bureau were introduced into evidence and for the three-day period here involved, the following information was given thereon:

“November 27, 1958: The maximum temperature was 30 degrees and the minimum temperature 21 degrees. One inch of snow fell before midnight of the 27th and melted precipitation measured 0.10 inch.
“November 28, 1958: The maximum temperature was 28 degrees and the minimum temperature was 22 degrees. Two and nine tenths inches of snow fell from midnight of the 27th to midnight of the 28th; melted precipitation measured 0.30 inch. There was four inches of snow on the ground at 7 a. m.
“November 29, 1958: The maximum temperature was 37 degrees and the minimum temperature 15 degrees. At 7 a. m. on this date three inches of snow remained on the ground. No precipation was measured and no snow fell during the 24-hour period.”

There are approximately 2,200 miles of sidewalk within the limits of the City.

The basic principles of law which govern the general subject of the liability of a municipality to one injured as a result of snow and ice on a sidewalk are too well known and have been stated too often to burden this opinion with their recital. Those interested will find this field of the law well covered in Vol. 25 Am.Jur., Highways, Sections 515-524, and in Vol. 63 C.J.S. Municipal Corporations at §§ 811-816. The Missouri cases are digested in Vol. 21A Mo. Digest, Municipal Corporations, 769, et seq. Cases from this and other jurisdictions can be found annotated in 80 A.L.R. 1151, and in 39 A.L.R.2d 782. An earlier annotation can be found at 13 A.L.R. 17.

In Missouri a municipality is not required to remove snow and ice from its sidewalks when such condition is general throughout the city. Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465; O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904. There is no question but that in this case the factual situation prevents the application of this rule. In her verdict-directing instruction, the plaintiff required the jury to find “ * * * that said ice, if any, had existed at said place for a longer period of time than on sidewalks generally through said city * * * ” and this was amply supported by the evidence. The sidewalk upon which this accident occurred was not fully covered by ice. A portion of it was clear of any covering. There is evidence, that snow fell but no evidence of any general icy condition nor of sleeting or freezing rain at any time during the three-day period here involved. The sidewalk on the north side of Duke was clear of snow and ice and the same was true of the other sidewalks in the vicinity of the Duke and Gravois intersection. Another of plaintiff’s witnesses testified that the sidewalks in the City were clear except for some snow in the curbing. Under the factual situation here prevailing, we cannot hold that the ice on the sidewalk where plaintiff fell was a part of a general condition prevailing throughout the City.

Where the dangerous condition is not common to the general condition throughout the City, the City has the duty to exercise reasonable care to remedy such a dangerous condition. Harding v. St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707, cited with approval in Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465, 1. c. 466 [2, 3]. Thus this court has held that where there is a deposit of ice and snow of such a character that the travel of tile public converts the surface into icy ridges or hummocks likely to cause pedestrians to slip and fall, a duty falls upon the City to correct the dangerous situation upon the receipt of reasonable notice. Paul v. Terminal R. Ass’n. of St. Louis, Mo.App., 296 S.W.2d 167, 1. c. 170 [1-3] and cases there cited. Compare Coy v. Kansas City, Mo. App., 243 S.W. 418, where sleet and freezing rain had fallen and then thawed and frozen to create a general icy condition. Under those circumstances, a fall allegedly due to rough and uneven snow and ice created by frozen footprints, covered by a recent general fall of light snow, was held insufficient to create any liability against a municipality. In Walsh v. City of St. Louis, supra, the early case of Reno v. St. Joseph, 169 Mo. 642, 70 S.W. 123, was stated to be one where the fall there involved was the result of a local condition peculiar to a particular spot rather than a general condition prevailing throughout the city. In that circumstance, it is analogous to the instant case. Under such a factual situation, a municipality is entitled to sufficient actual or constructive notice of the existence of the condition as will give it a reasonable time to remedy that condition. Walsh v. City of St. Louis, supra; Paul v. Terminal R. Ass’n. of St. Louis, supra. In Reno v. St. Joseph, supra, 70 S.W. 1. c. 126, the rule is stated as follows:

* * * Or when snow and ice are permitted to accumulate upon a sidewalk of a city, and are permitted to remain there until by thawing and freezing they become an obstruction, and the sidewalk unsafe for travel, and the city has knowledge thereof for a sufficient length of time before an accident and injury occurs to one traveling thereon in the exercise of ordinary care, to remove the obstruction, and fails to do so, it will be held to respond in damages for the injury. * * * ”

Compare Albritton v. Kansas City, 192 Mo. App. 574, 188 S.W. 239, 1. c. 241, holding that unevenness and roughness produced by travel through snow and slush which after-wards freezes and presents no obstructive or dangerous features uncommon to the general condition of snow and ice is not to be classed as actionable defect.

The City contends that the evidence is that this condition had existed only 7j4 hours prior to plaintiff’s fall. It determines this figure by arguing that there could be no melting of the snow so as to cause rough and uneven ice to be formed by the freezing of the resulting slush until sometime on Saturday, the 29th, when the temperature reached a point above freezing for the first time since snow began to fall on the 27th. Since the evidence is that the low temperature for the 24-hour period of the 29th of November was IS degrees, the City urges that this low must have occurred during the hours between midnight and very early on the morning of the 29th. It then argues that the thaw occurred later that morning and fixes the time when the thaw began as 9 a. m. Recognizing that the uncontradicted evidence was that the area was frozen solid at the time of plaintiff’s fall, the City contends the freezing must have taken place immediately after the thaw. Thus it considers the time during which the City must be held to have gained constructive notice of the condition of this sidewalk began at 9 a. m. on the 29th and ended at 4:30 p. m. on the same day. This argument cannot be sustained. There was no evidence upon which to base the assumption that the low temperature of 15 degrees was recorded sometime between 12 midnight on the 28th and 9 a. m. on the morning of the 29th. Evidence is equally lacking that the high temperature for the 29th was reached during the morning of that day and that the temperature thereafter returned to below freezing. The evidence does not sustain the City’s theory as to the time this condition existed.

When the evidence is viewed in the light we are required to view it, the jury was entitled to find this condition had existed for a longer period of time than 71/2 hours. The evidence of pedestrian and vehicular tracks in the ice would allow the jury to infer that such activity over this area of the sidewalk could cause some slush to be created. The evidence that the temperature remained below freezing prior to some undetermined time on the 29th supports the finding that the footprints and tire tracks made across the slush thus created would freeze. It follows that the jury would be entitled to find the rough and uneven condition of the ice was created prior to the 29th when the temperature first rose above the freezing mark. Moreover, the testimony was undisputed that when plaintiff fell, the rough and uneven ice was covered with a thin layer of fallen snow. The uncon-tradicted evidence was that snow ceased to fall at 11 a. m. on the 28th. The evidence most favorable to the plaintiff fixes the time of her fall at 4:30 p. m. on the 29th. Since snow ceased to fall 291/2 hours prior to plaintiff’s fall and since when she fell the ice was covered with a thin layer of fallen snow, it follows that the evidence substantiates the plaintiff’s theory that this condition of the sidewalk existed prior to 11 a. m. on the 28th. While there is no evidence from which the maximum time this condition had existed can be determined, the evidence does support the contention that 29|Y2 hours was the minimum length of time it had existed. The specific question presented by this appeal is whether evidence that this condition had existed for that length of time is sufficient to support submission to the jury of the issue of the City’s constructive knowledge of the existence of this condition.

What has been held to constitute sufficient constructive notice has been the subject of annotation. Some of the pertinent cases may be found at 13 A.L.R. 46, 80 A.L.R. 1160, and 39 A.L.R.2d 808, et seq. See also McQuillin, Vol. 19, Municipal Corporations, 3rd Ed., Sec. 54.114, pp. 429-450. However, it has long been the rule in this state that in those cases involving a sidewalk condition alleged to be dangerous and hazardous from causes other than snow and ice, there is no fixed rule as to what length of time would furnish notice to a municipality. Each case is held to depend upon the facts and circumstances surrounding it. Young v. Webb City, 150 Mo. 333, 51 S.W. 709. We think that statement equally applicable to cases involving injuries upon sidewalks covered with snow and ice. Nevertheless, we are cognizant that a time lapse only slightly less than that involved in the instant case has been held an insufficient lapse of time. In Armstrong v. City of Monett, Mo., 228 S.W. 771, 1. c. 774, the court held:

“* * * It was part of plaintiff’s case to show when the freezing and thawing occurred which formed the rough ice which injured him, and that it occurred a sufficient length of time prior to the injury to enable the defendant city by the exercise of ordinary care to have discovered and removed it. This the plaintiff’s evidence failed to show, because, under the evidence offered by the plaintiff, such freezing and thawing and trampling by pedestrians may have been on the same day plaintiff was injured, in which case it could not be contended the city would be liable. The plaintiff must show that his injury occurred under circumstances in which the city would be liable, among which is the existence of the defect complained of for a sufficient length of time before the injury to enable the city to remedy the defect.” (Emphasis supplied.)

In Vonkey v. City of St. Louis, 219 Mo. 37, 117 S.W. 733, 1. c. 735, 2(a), approximately one half day was held an insufficient lapse of time.

It is not necessary to the proper disposition of this appeal that we herein set out a list of the numerous factors that bear upon the question of what constitutes a sufficient lapse of time to authorize submission to the jury of the issue of constructive notice. It is sufficient that we note that two of those factors weigh heavily against the plaintiff in the instant case. Those factors are the lapse of 29J4 hours and the undisputed fact that the City had approximately 2,200 miles of sidewalk within its limits. When the time lapse here involved is considered in the light of the total number of miles of sidewalk in the City, we believe that reasonable minds, in the exercise of a fair and impartial judgment, could not reach any conclusion other than that the lapse of 29)4 hours is an insufficient lapse of time.

It follows that the trial court erred in overruling the City’s motion for a directed verdict offered at the close of all the evidence. The judgment should be reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the City. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the City.

RUDDY, P. J., WOLFE, J., and WILLIAM M. KIMBERLIN, Special Judge, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Thomas STRAUGHAN, a minor, by his next friend, Lester Straughan, Plaintiff-Respondent, v. Samuel T. ASHER, Defendant, Farmers Insurance Exchange of Farmers Insurance Group, Garnishee-Appellant. Sandra STRAUGHAN, a minor, by her next friend, Lester Straughan, Plaintiff-Respondent, v. Samuel T. ASHER, Defendant, Farmers Insurance Exchange of Farmers Insurance Group, Garnishee-Appellant.
    Nos. 31471, 31472.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.

      Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for appellant.
    Roberts & Roberts, Raymond S. Roberts, Sr., J. Richard Roberts, Farmington, for respondent.
   BRADY, Commissioner.

Each of the cases consolidated in this appeal began as an action by the respondents, hereinafter referred to as the plaintiffs, wherein they sought to recover for personal injuries arising out of an automobile accident. Judgment was entered in favor of plaintiffs and against Samuel T. Asher, hereinafter referred to as the defendant, in the amount of $2,500.00 and costs in each case. Thereafter garnishment proceedings were instituted in each case against the Farmers Insurance Exchange of the Farmers Insurance Group, hereinafter referred to as the garnishee. Upon trial in the. garnishment proceeding, the trial court found in favor of the plaintiff and the garnishee appeals.

In the trial court the parties filed a stipulation of facts. According to that stipulation, at the time of the accident the defendant was driving an automobile belonging to his mother, Ruby Littrell. This automobile was covered by a policy of liability insurance issued by the garnishee. Under the terms of that policy, such coverage as was afforded by the policy was extended to any person using the automobile other than the named insured provided the use was with the permission of the named insured. The stipulation stated the judgment in each of the personal injury actions, and that executions were issued and writs of garnishment were served upon the garnishee in each case. The pleadings in the garnishment proceeding consist of interrogatories and the answers thereto, plaintiff’s denial of these answers, and the garnishee’s reply to that denial. Before proceeding in the garnishment action, the parties stipulated that the only issue to be tried was whether the defendant was driving this automobile with the permission of his mother when the accident occurred and that the evidence on this issue would be applicable in each of the garnishment proceedings.

The only evidence on this issue offered by the plaintiffs consisted of testimony given by witnesses as to statements they stated they heard Mrs. Littrell make to the investigating officer at the scene of the collision. The garnishee objected to this testimony each time it was offered on the grounds that “ * * * it’s hearsay. Mrs. Littrell is here in the courtroom. She was not a party to this accident * *

The transcript discloses that this testimony came into the evidence in the following manner. In each instance the objection that the evidence would be hearsay was timely made and overruled and, for that reason, will not be shown in the following excerpts from the transcript. Lester Straughan was asked:

“Q. All right. Did you hear her there, in the presence of yourself and others, make some statements relative to who was driving, how they were driving the car or whether or not they were driving with her permission ? Now, answer that yes or no.
“A. Yes, sir.
sje :¡: * * * *
“Q. Go ahead and tell us what you heard her say.
“A. She was crying. She went over to Bill Black, best I remember it, she either took him by the coat or put her hands on him here and said, ‘Bill, I knew better in the first place to let my boy have my car.’ I believe that was right.
“Q. Now, did she make that statement or similar statements more than one time there?
“A. Yes. But in different language, yes.
“Q. Now, was her boy still there at the time?
“A. Yes, Sir.”

The witness Botkin was asked if he heard Mrs. Littrell make any statements relative to her boy driving the automobile, and testified as follows:

“A. I heard her make a statement to Bill Black that she knew that she shouldn’t have let her son have the car.”

The witness Keith was asked if he heard Mrs. Littrell make any statements relative to how her son happened to be driving the car. He said that he did and when asked what he heard her say, testified:

“A. Well, she said that — she was talking to Bill Black, she said she knowed she shouldn’t of let her boy, let him have the car, drive the car, something to that effect.”

After the usual preliminary questions, the witness Ruth Sago was asked to tell the court what statement she heard Mrs. Lit-trell make. She gave the following answer:

“A. Well, as I came up to Bill Black to find out where Sandy was she was there and she said to him, she said, ‘Oh, I wish that I hadn’t let him have my car.’ And I went over where Sandy was.”

In like manner, the witness Glen Sago was asked to tell the court what statement he heard her make and answered:

“A. She, she — I can’t remember the exact words but she said something to the effect that she knew she shouldn’t have let her boy have the car.”

The witness Botkin testified that he heard Mrs. Littrell make this statement “ * * * somewhere around 8:30, 9:00.” Lester Straughan was at his home about 3 blocks away when he was notified of the accident and he went immediately to the scene. Mrs. Littrell arrived at the scene after he got there. From the testimony of Officer Black, the person to whom Mrs. Littrell made the statements these witnesses repeated, it appears that when Mrs. Littrell arrived at the scene there were two ambulances already there, and a wrecker was attempting to right one of the automobiles involved in the collision. He was in the center of the street, attempting to direct traffic and to get the ambulances on their way, when Mrs. Littrell ran up to him. He did recall that she told him it was her automobile. When asked if she did in fact make these statements during their conversation, his answer was “I don’t recall her saying one way or the other.” At another point he was asked a similar question and answered, “She could have and she could have not. I don’t know, I wouldn’t say yes or no, sir.”

Mrs. Littrell denied making these statements. She also denied that she had given "her son permission to use her automobile on this or upon any earlier occasion as he was IS years of age and did not have a license. She did admit that on one occasion she had allowed him to drive her from her 'home to her mother’s farm, a distance of 6 or 7 miles, so he could practice for the “drivers test” he was to take soon. Her testimony was that the defendant and a “couple of boys” came down to her place of employment. She drove home with them in the automobile, stopping on the way to pick up a girl friend whom she took home. She then stopped at a food market and shopped. She then drove home without any other stops. The defendant carried in the groceries and went back out to the automobile to wait with his friends. The boys had asked to go to the “drive in” and Mrs. Littrell agreed to take them. Mrs. Littrell testified she found out about the accident about 10 minutes after her son left home when he came home to tell her. She had to put on a dress and then went immediately to the scene of the collision. When she arrived, she saw Jerry Counts lying on the ground and “ * * * the little Straughan girl laying on a stretcher * * She testified she was excited but when asked if she was sure what she did say, answered “Oh, I, I assume that I know what I said.”

The defendant testified he never had permission to take the automobile alone on this •or any other occasion. His testimony was that after carrying in the groceries he returned to the automobile to wait for his •mother. After the boys had waited for some time, the witness Counts changed his mind about going to the “drive in” and wanted to go home. The defendant testified “ * * * i told him I didn’t know if I should take him or not. I didn’t think she’d miss the car. Just going right up there and ■come right back. So I took him home.” Defendant stated that he had taken this automobile out on 2 other occasions when his mother was away from home, taking a duplicate set of keys out of his mother’s dresser, but that she had never known about it. Counts testified that he had been with the defendant on another occasion when the latter took his mother’s automobile in her absence. Counts also testified that the defendant did not go back into the house and had no opportunity to converse with his mother after he, Counts, changed his mind about going to the drive in and asked the defendant to take him home. The plaintiff fixed the time of the accident at “About 7:30 or 8:00, somewhere, I’m not sure.” He placea the scene as about 7 or 8 blocks from hi» home and stated the accident occurred about 10 or 15 minutes after he left his home.

The rules of review in cases of this nature are well known. This court is to review the case de novo and is to reach its own conclusions as to the weight and value of the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. § 510.310, RSMo 1959, V.A.M.S., and cases cited at n. 105.

The garnishee has briefed two allegations of prejudicial error. The second of these is the allegation that the trial court erred in admitting the allegedly hearsay testimony of the witnesses as that testimony is set out earlier in this opinion. We will not rule upon that allegation of error for the reason that this court is empowered to consider such of the evidence it deems admissible and to exclude from its consideration evidence improperly admitted. Feinberg v. Pfeiffer Co., Mo.App., 322 S.W.2d 163; § 510.310, supra, n. 109. The remaining allegation of prejudicial error presented by garnishee is that the plaintiffs failed to prove the defendant had his mother’s permission to drive her automobile.

There is no question but that the permission provided by the omnibus clause of an insurance policy can be either express ■or implied from the conduct of those in position to give that permission, but the person claiming such permission must prove it and no implied permission can arise merely because someone obtained possession of the automobile and used it. Varble v. Stanley, Mo.App., 306 S.W.2d 662. Accordingly, the ■plaintiffs had the burden of proof.

It should be noted that the testir •mony of Lester Straughan differs from that of the other witnesses. His testimony was to the effect that Mrs. Littrell told Officer Black that she knew better than to let the ■defendant have the automobile. This testimony does not substantiate plaintiffs’ argument that Mrs. Littrell gave her son permission to use the automobile. Taken literally, the testimony of this witness is that she knew better than to give her son permission to use the automobile. Plaintiffs contend that a reasonable inference to be drawn from this testimony is that Mrs. Littrell gave the defendant permission to use the automobile. It would seem that an equally reasonable inference to be drawn ■from such a statement is that Mrs. Lit-trell would not do what she stated she knew better than to do. However, we need not decide the question for even if this testimony is subject to the inference plaintiffs seek to draw from it, it is equally subject to the other inference stated above. In Varble v. Stanley, the court, speaking of the accepted rule that a case may rest upon an inference, said (306 S.W.2d 662,1. c. 667) :

“ * * * But such inference must be drawn from substantial and probative evidence which is sufficient to lead to a conclusion as to a certain result which, according to the common experience of mankind, follows naturally and usually from the given state of facts and which at the same time logically and according to the common experience of mankind excludes a different result or conclusion.” (Emphasis supplied.)

In the event there are two reasonable inferences to be drawn from the language testified to and these inferences are contradictory, that language cannot constitute substantial proof of either inference .as the adoption of one inference does not logically and according to the common experience of mankind exclude the other different result or conclusion. Varble v. Stanley, supra. Accordingly, we need not rule upon whether the testimony of Lester Straughan is admissible and properly for our consideration; even if we assume it is, being subject to other interpretations, that testimony is not sufficient to prove the issue of permission.

The testimony given by the witnesses Ruth Sago, her husband, Botkin, and Keith differ from that given by Lester Straughan. Mrs. Sago’s testimony was that Mrs. Littrell told the officer, “Oh, I wish that I hadn’t let him have my car.” The testimony of the other witnesses was also phrased in the past tense. For example, that of the witness Keith who testified Mrs. Littrell stated “she knowed she shouldn’t of let” the defendant have the. automobile. This testimony does give rise to the inference that she did, in fact, give him permission. If properly for our consideration, such testi-inony supports thé plaintiffs’ contention that they carried the burden of proving- the defendant had Mrs. Littrell’s permission to drive the automobile. It follows that whether such testimony is properly for our consideration is the decisive issue of this appeal.

The garnishee contends this evidence -should be excluded as a violation of the rule prohibiting-hearsay. The plaintiffs contend this evidence was properly admitted by the trial court and should be considered by this court on the ground that this evidence constitutes either a declaration against interest on the part of Mrs. Littrell, or, in the alternative, that the testimony was a part of the res gestae. It requires no citation to substantiate their contention that declarations against interest and res gestae statements are recognized exceptions to the rule against hearsay evidence.

The basis for the exception of a declaration against interest to the rule prohibiting hearsay evidence is stated in Wigmore on Evidence, 3rd Edition, Vol. V, § 1457, as being:

“ * * * the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently sanctioned, though oath and cross-examination are wanting * *

Since Mrs. Littrell was not a party to the original proceeding nor to the garnishment action, we necessarily note the distinction between an “admission against interest” as contrasted to a “declaration against interest.” The distinction is clearly stated in Roush v. Alkire Truck Lines, Mo., 299 S.W.2d 518, 1. c. [1-4] 520, where it was held:

“ * * * An admission is competent only when made by a party or by someone identified in legal interest with a party to the action, and is admissible although the declarant is available as a witness. On the other hand, a declaration is in the nature of secondary evidence and is admissible only when the declarant is not available as a witness. It is competent even though the declar-ant is not a party or in privity with a 'party to the action, but the statement of the declarant must have been adverse to an interest possessed by the declarant at the time the statement was made. (Citing cases.)” (Emphasis ours.)

See also Moore v. Metropolitan Life Ins. Co., Mo.App., 237 S.W.2d 210; 31 C.J.S. Evidence § 217, et seq.; 20 Am.Jur., Evidence, § 556; Wigmore on Evidence, supra, § 1456; Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 1. c. [5, 6], [7]. In 31 C.J.S. Evidence, § 217; 4 requirements are given before a declaration against interest is admissible:

“ * * * (1) Declarant must be unavailable as a witness. (2) The declaration must have related a fact against the apparent pecuniary or proprietary interest of declarant when his statement was made. (3) The declaration must have concerned a fact personally cognizable by declarant. (4) The circumstances must render it improbable that a motive to falsify exist- ‡ 4* íjí

It should be noted that the Restatement does away with the first requirement ; i. e., that the declarant must be unavailable as a witness. See the Restatement, A.L.I. Model Code of Evidence, Rule 509, (1), Comment c. This view proceeds upon the compelling argument that if one accepts the basic premise or basis for the exception to be that, human nature being what it is, a statement asserting a fact distinctly against one’s interest is so likely to be true that testimony as to that statement should be admitted, then it is illogical to require the one making the statement to be unavailable before the truthful statement can be heard. While this may seem logical in view of the basis for the exception of declarations against interest as that basis was given by Wigmore, the Supreme Court of this state has consistently required that the declar-ant be unavailable as a witness. Roush v. Alkire Truck Lines, supra; Sutter v. Easterly, supra. However, by the adoption of what Wigmore calls the “Necessity Principle” (Wigmore on Evidence, 3rd Edition, Vol. V, § 1456), Missouri has adopted a more realistic view than most jurisdictions when determining if the witness is, in fact, unavailable. Under that test, we have enlarged the accepted condition of unavailability to include illness, insanity, absence from the jurisdiction, and incompetency through interest. Sutter v. Easterly, supra. We are not aware of any instance, however, where the exception of a declaration against interest has been applied to allow the admission of hearsay evidence in a case involving a declarant who actually did testify. Roush v. Alkire Truck Lines, supra, specifically rules this point to the contrary, stating (299 S.W.2d at 520):

“* * * We need not determine if the statement attributed to the truck driver was adverse to an interest possessed by him at the time, because, in any event, there was no showing that the declarant was not available, and in fact he was available and subsequently testified■ Therefore, the statement was not admissible as a declaration against interest.” (Emphasis ours.)

The result may seem inconsistent in that although this testimony would have been available to impeach Mrs. Littrell who testified she did not give the defendant permission to use her automobile, it is not admissible to prove she did give the defendant permission. Be that as it may, we are bound by Roush v. Alkire Truck Lines, supra. It follows that this court must reject the plaintiffs’ contention that the hearsay testimony of these witnesses is properly for our consideration as admissible declarations against interest.

The plaintiffs then urge that we should consider these statements on the ground as admissible under the res gestae exception to the rule prohibiting hearsay. The term res gestae has been bitterly criticized as a meaningless, even harmful Latin shibboleth. Meyers v. Smith, Mo., 300 S.W.2d 474. Wigmore on Evidence, Vol. VI, § 1745. The indiscriminate use of the term as a catch-all phrase should be avoided. Distinctions should be carefully drawn between the several kinds of statements that may be received in evidence under the general heading of res gestae. Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 1. c. 781; Meyers v. Smith, supra, and Roush v. Alkire Truck Lines, supra; see also Keefe v. State, 50 Ariz. 293, 72 P.2d 425. We need not go further into the general field except to state that the statements here involved cannot qualify as that type of res gestae statement known as a “verbal act.” If this testimony is to be admitted, the statements made must qualify as another type of res gestae statements; i. e., those known as “spontaneous exclamations.” The exception of spontaneous exclamations to the rule prohibiting hearsay is one that, under certain circumstances, permits testimony as to statements, made by a person involved in or present at an accident, declaring the circumstances of an injury at or after its occurrence. Sconce v. Jones, supra at 121 S.W.2d 1. c. 781. In the Sconce case at the same local citation, the basis for this exception is given by quoting with approval from Wigmore as follows : “ ‘This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.’ ” In Sconce v. Jones, supra, 121 S.W.2d 1. c. 781, it was held that:

“ * * * The essential test of this class of statements is spontaneity. The lapse of time involved is material mainly as evidence of lack of spontaneity.”

The burden is on the plaintiffs to make a sufficient showing of spontaneity. Sconce v. Jones, supra, and cases cited at 121 S.W.2d p. 782. What constitutes a sufficient showing of spontaneity depends upon the circumstances of each case. Wigmore on Evidence, 3rd Edition, Vol. VI, § 1750, p. 144, and see Missouri cases cited p. 150. The plaintiffs contend that whether there was a sufficient showing made is largely a matter of discretion and there will be no reversal iinléss'there is an abuse of discretion shown. It is true that there are cases holding that trial courts are privileged to use reasonable discretion in determining whether hearsay testimony is admissible as a part of the res gestae exception to the hearsay rule of evidence. Billingsley v. Kansas City Public Service Co., 239 Mo.App. 440, 191 S.W.2d 331, 1. c. 334; Legger v. Great Northern Life Ins. Co., Mo.App., 216 S.W.2d 106, 1. c. 109. However, as was stated in Meyers v. Smith, supra, 300 S.W.2d 1. c. 477, “ ‘No reliance can be placed on these decisions further than to say that the court can, if it wishes to, review the ruling without any concession to the trial court, but, if it wishes to, may review it cursorily and refer to the judge’s discretion as a convenient resort, or a makeweight, or as a deciding factor where the evidence is obscure.’ ” In the Meyers case, supra; the court noted with approval the position of those who urge that whether the evidence is •admissible as res gestae is a question of law which the appellate, court should pass upon as it does any other mixed question of law ánd fact. We think the question is not one properly resolved by a reference to the trial court’s discretion but is for our determination.

It is well settled, however, that to be admissible under the res gestae exception to the rule prohibiting hearsay, the statement must disclose something done, seen or heard by the speaker in the course of the accident. In the note in 163 A.L.R. at p. 193, the writer collects the cases so holding and states the limitation in this manner: “Accordingly, a declaration is not admissible if it but divulges facts antecedent to the occurrence itself, however strongly it may be authenticated by post-accident excitement * * See also 53 A.L.R.2d 24(b) p. 1328 and 25(b) p. 1330. It follows that the statements here involved are not admissible under the res gestae exception to the rule prohibiting hearsay.

As.„,stated earlier herein, the admittedly hearsay testimony of these witnesses is the only evidence by which the plaintiffs seek to bear their. burden- of proving Mrs. Littrell gave the defendant permission to drive her automobile. .Since this testimony is not properly for our consideration, the plaintiffs have failed to bear their burden of proof and the judgment in the garnishment proceeding should be reversed. ‘This cause should be remanded to 'the trial court with directions to enter a verdict in favor of the garnishee. The Commissioner sd recommends.

PER CURIAM:

The foregoing opinion óf BRADY, C., is adopted as the opinion of this court. The judgment in the garnishment proceeding is reversed and the cause remanded to the trial court with directions to enter a verdict in favor of the garnishee.

RUDDY, P. J., and.WOLFE and AN.DERSON, JJ., concur.


author: L. F. COTTEY, Special Commissioner.

text:
    Leroy FOWLER, (Plaintiff) Appellant, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a corporation, (Defendant) Respondent.
    No. 31026.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.

      Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellant.
    Robert C. Ely, St. Louis, for respondent.
   L. F. COTTEY, Special Commissioner.

This case has been retransferred to us by the Supreme Court for final disposition. Fowler v. Terminal Railroad Association, Mo., 363 S.W.2d 672.

In the court below plaintiff had a verdict for $1,500 for damages for injuries sustained by him in a fall on defendant’s premises. In due course his motion for a new trial or, in the alternative, for an additur, was overruled. By the same order, but without assignment of any specific ground therefor, the trial court set aside the verdict and entered judgment for defendant on its motion for judgment in accordance with its motion for a directed verdict. From that order plaintiff has appealed.

It is conceded that defendant was the owner of, and responsible for the proper maintenance of, the premises known as Union Station in St. Louis on which the accident occurred, and we adopt plaintiff’s theory that he was a business invitee at the time he entered those premises. The accident occurred just as he was in the act of entering and it was caused, he alleges, by defendant’s negligence in maintaining the entrance in a dangerous condition in four particulars, submitted conjunctively in his main instruction: (1) because there was a step inside the door “in such close proximity to the doorway that persons entering would be required to hold the door while entering and might be off balance”; (2) because the entranceway “was not adequately lighted”; (3) because “there was no handrail on said steps immediately inside said entrance door”; and (4) because “said steps were not clearly marked or provided with nonslip edges.” Our statement of additional facts is gleaned entirely from plaintiff’s evidence, defendant’s evidence having been limited to certain admissions against interest contained in plaintiff’s deposition.

Plaintiff was a seventy-six year old former employee of defendant who, prior to his retirement in 1954, had worked for defendant on the premises here involved for a period that “lacked three months of being fifteen years.” Following his retirement he became engaged in a new venture that required his presence on defendant’s premises from time to time for business purposes. It was in connection with that venture that he entered on the occasion in question. The record discloses that on the Eighteenth Street side of Union Station there is a cluster of three entrances of similar if not identical construction. Each consists of a pair of hinged door panels with glass panes in the upper portions, flanked by glass windows. The doors, all of which open outwardly on to the street, provide ingress to a foyer “about eight feet wide” that extends the entire length of all three entranceways. The building seems to have been constructed on a grade that slopes downward to the south, with the result that inside the north entrance, at a distance of “twenty inches to two feet,” a flight of three concrete steps is required to reach from the interior projection of the sidewalk level (sometimes .referred to in evidence as a “ledge” and as the “top step”) down to the floor of the foyer, whereas only two steps are required at the center entrance and only one at the south. There is no handrail at these steps; they are not painted or otherwise marked nor are they equipped with non-slip edges. Across the foyer, opposite the three outside entrances, three corresponding pairs of swinging doors lead through a glass-and-wood partition to a main stairway of some twenty-odd steps that descends to the basement of the building. Those stairs are equipped with several conveniently located sets of handrails.

Plaintiff testified that he was in the act of entering the building by the northernmost of the Eighteenth Street entrances when his accident occurred. This was the entrance he had “ordinarily used,” though “not always,” throughout the nearly fifteen years he had worked for defendant there. He estimated that during that time he had used it on an average of “once a day” for “five days a week," or a mathematically calculable total of some 3,800 times, to say nothing of the visits he had made to the premises since his retirement. On the day of his accident he followed “the same procedure” in effecting his entrance that he had customarily followed “for almost fifteen years.” On no previous occasion had he “ever had any difficulty.” He stated that as he entered the building that day he “glanced down” — “I always look down to see where I’m going” — “seen the step,” and did not observe “any foreign object, any paper or anything of that sort” on it. It was a clear day and there was no “ice, snow or rain or anything of that sort” on it. There is no claim that the surface of the entranceway or steps were worn or cupped or defective in any similar respect. Each outside door was equipped with a “door closer,” and when opened would not “stay open.” It was consequently necessary, plaintiff said, to “hold your hand on it” when entering or “it would hit you.” In that particular, however, as in all its other features, the entranceway was in substantially the same condition on the day of the accident as it had always been, so far as plaintiff could observe. An engineer who had inspected the premises at plaintiff’s request testified that as one entered the building from the outside there wouid be “quite an appreciable difference” in the “lighting conditions,” and that “it would be emphasized” notwithstanding the artificial illumination in the general area; and plaintiff added, out of his long familiarity with the place, that “it was always dark in there.” Nevertheless, his photographs of the steps show them to be quite plainly visible even with the doors closed. He was holding the door open at the time his accident occurred. On direct examination he gave this account of the mishap.

“Q. Tell us what you did.
“A. I pulled the .door back, held it with my hand and put my left foot in. There was a ledge there about this wide (indicating). I put my right foot in there and when I put my right foot down I lost my balance and it threw me to my left.
“Q. Did you slip?
“A. Yes, I slipped.”

He identified a photograph of the interior projection of the sidewalk level, mentioned above, as being the “ledge” he referred to. On cross-examination he repeated that version of the incident:

“Q. Is it correct, Mr. Fowler, that you slipped on the top step ?
“A. Yes, I put my left foot in and my right foot to go in the door, holding the door. That is when I lost my balance, my foot slipped.
“Q. You slipped, is that right?
“A. Yes, sir.
“Q. Is it correct you lost your balance because you slipped?
“A. Yes, sir.
* * * *
“Q. Your right foot slipped off that top step?
“A. Yes, sir.”
“Q. And that is what caused you to lose your balance?
“A. Yes, sir.”

On a dozen occasions he repeated his statement that he “slipped” while in the act of taking his first step inside the door; but he was unable to assign any cause for his slipping. That fact was confirmed on cross-examination in this way:

“Q. Isn’t it correct that you did not know what caused you to slip?
“A. Yes, sir.
“Q. When you say yes, sir, you mean you did not know, is that right?
“A. Yes, sir.
* % * *
“Q. Is that right, sir ?
“A. I am not able to tell.”

That plaintiff slipped, and that he had no knowledge as to what caused him to do so, was thus established in considerable detail. By contrast, his account of the further development and ultimate issue of his misadventure is signally cryptic. It was confined to this question and answer:

“Q. Where did you finally come to rest after you stumbled and fell?
“A. Thirteen steps down.”

He identified the place on a photograph of the main stairway to the basement. How he managed to get from the outside entrance down the three steps to the foyer door, across the eight-foot-wide foyer, though the swinging doors at the head of the main stairway, and half way down that stairway, without ever regaining his balance or checking his forward progress, is a subject for speculation, idle but beguiling.

The learned trial court evidently concluded, on the record made, that plaintiff had failed to make a submissible case on any of the four grounds hypothesized in his main instruction. We think that ruling was proper.

The rule is that “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.” 65 C.J.S. Negligence § 50, p. 541 et seq. In Ostresh v. Illinois Terminal Railroad Company, Mo., 313 S.W. 2d 19, 22, the Supreme Court said:

“Defendant owes business invitees the duty of ordinary care to keep its premises in a reasonably safe condition. It is not required to exercise the highest degree of care or to make its premises absolutely safe. It is not an insurer of an invitee’s safety. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954, 956 [2]. ‘The basis of the defendant-proprietor’s liability is defendant’s superior knowledge of an unreasonable risk of harm of which the invitee does not or in the exercise of ordinary care should not know. Such a defendant is not liable for injuries due to dangers which are obvious, or as well known to plaintiff as to defendant.’ Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468, 473[1—3]; Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303, 305.”

To the same effect see Haire v. Stagner, Mo.App., 356 S.W.2d 305, where numerous authorities are collected and reviewed.

How is it possible, within the limits of that rule, to ascribe any negligence whatever to defendant in this case? The evidence discloses nothing dangerous or unusual in the construction or maintenance either of the entranceway or of the steps inside. Exterior doors of business establishments frequently open outwardly and, in the case of buildings “where people are wont to assemble” are required by statute to do so. Sec. 320.070, V.A.M.S. They are commonly equipped with a door closer, and there is no claim in this case that such device was not functioning properly; as, for instance, that it closed the door with abnormal speed or unreasonable force. Defendant “has the right to rely upon the sufficiency of a structure or contrivance such as is in common use, and which, in the light of the experience obtained by its general use, has been found to answer the purpose for which it was designed and intended.” Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712, 713. If in this case plaintiff found it necessary to retard the closing of the door by holding his hand on it as he entered, or if his own convenience wás served thereby, it was in either event a condition with which his use of it on more than 3,800 previous occasions, following “the same procedure,” had surely familiarized him. And even if he had been a stranger to the premises it would hardly be permissible to infer that the action of the door, whatever it may have been, was a contributing factor in his accident. He effectively negatived any such inference by testifying that he lost his balance because he “slipped” and he had no knowledge as to what caused him to slip.

The steps were apparently free of any foreign substance which might account for the accident. The surfaces were smooth but not slick. They appear to have been of ordinary construction. “Steps are usual in dwellings and store buildings,” Main v. Lehman, 294 Mo. 579, 243 S.W. 91, 93, and “steps and stairways of ordinary construction are reasonably safe when used as means of overcoming differences in level,” Oakley v. Richards, 275 Mo. 266, 204 S.W. 505, 506. True, they were “in close proximity to the doorway,” but that circumstance does not account for plaintiff’s slipping on them; certainly they were in no sense “hidden dangers, traps, snares, pitfalls, or the like.” If plaintiff had not known of their location, and in some manner had been prevented from seeing them, he might have complained that defendant failed to warn him of their presence; but he was thoroughly familiar with them, and no question of failure to warn is involved in this case. The criticisms of plaintiff and his engineer-witness as to the lighting conditions in the foyer amount to the -same vague generalities that were held insufficient to establish the negligence of the defendant-proprietor in Lindquist v. S. S. Kresge Co., supra, 136 S.W.2d loc. cit. 305, and in Ostresh v. Illinois Terminal Railroad Company, supra, 313 S.W.2d loc. cit. 23. And they are belied by plaintiff’s photographs which show the steps to be perfectly visible with the outside door closed, whenas it was open, presumably admitting some degree of sunlight on “a clear day,” when plaintiff slipped. But more to the point, no doubt, is plaintiff’s admission that he “seen” the steps. That took the issue of inadequate lighting out of the case and rendered equally academic the question as to whether some marking of them might have made them even more readily visible.

Perhaps the addition of a handrail along the three steps, or the equipping them with non-slip edges, would have made them still safer; but “Defendant was not an insurer or required to -furnish absolutely safe steps.” Ostresh v. Illinois Terminal Railroad Company, supra, 313 S.W.2d loc. cit. 24. In any event the absence of those safeguards was obvious and well known to plaintiff. “And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.” Cameron v. Small, Mo., 182 S.W.2d 565, 568. Whenever “the invitee is aware of the condition, or it is such that he must be conscious of it and of the consequence of disregarding it, he cannot recover.” Harper v. First National Bank of Kansas City, Mo., 196 S.W.2d 265, 267. “Plaintiff also must have known that defendants owed her [him] no duty to protect her [him] from an unsafe condition which was obvious to a person exercising ordinary care.” Cameron v. Small, supra, 182 S.W.2d loc. cit. 569 And even if we were to assume, as plaintiff would have us do, that the premises were not absolutely safe and that by making the alterations implicit in the language of his main instruction they could be made so, we would be constrained to say that a reasonable necessity for such alterations can only be discerned in the light of hindsight, as plaintiff’s own accident-free use of the entranceway over an extended period of years demonstrates; hence, that defendant’s failure to have constructed the premises according to plaintiff’s current specifications does not constitute a breach of its duty to invitees. The law does not require the proprietor "to exercise the highest degree of care or to make its premises absolutely safe,” and “the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.” Ostresh v. Illinois Terminal Railroad Company, supra, 313 S.W.2d loc. cit. 22.

On the basis of the record in this case it seems appropriate to say, as did the court in Main v. Lehman, 294 Mo. 579, 243 S.W. 91, 95, “No case is cited from this or any other jurisdiction and we have been unable to find any, where the invitee had full knowledge and information immediately before his or her injury of the step or other obstruction complained of, in which defendant was held guilty of negligence or liable for the plaintiff’s injury.” There is nothing left in the case, from a liability standpoint, save the fact of plaintiff’s unexplained slipping. But slipping is a result rather than a cause. It may be produced by negligence, one’s own or another’s, and it may occur in the absence of any negligence at all. It is a common mischance invited by the ordinary act of walking, a normal hazard incident to the descent of steps, and, in the absence of any showing as to its cause, we may no more infer defendant’s primary negligence from it than plaintiff’s contributory negligence. Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867, 868. Neither party may be found at fault from the mere fact that an accident happened. Our impression of the evidence, then, is summed up by the closing comment of the court in the Ostresh case, 313 S.W.2d loc. cit. 24: “Plaintiff’s testimony as to the cause of his fall, 'the only testimony on the issue, is vague and at best does not present a situation from which liability of the defendant might be drawn with a greater degree of reasonable probability than defendant’s nonliability.” Clearly there was no case made for the jury.

Plaintiff insists, however, that we may not affirm the trial court’s order on that ground; that it is not susceptible of affirmance at all, because the trial court neglected to specify any ground for it. That omission renders the order “null and void,” plaintiff says, citing Supreme Court Rules 75.01, 78.01 and 83.06(b) and (c), V.A.M.R. The portion of the order with which we are here concerned reads as follows : “Motion of Defendant for Judgment in Accordance with its Motion for a Directed Verdict sustained and verdict and judgment entered herein in favor of Plaintiff set aside and judgment entered in favor of defendant * * Rule 75.01 says that “ * * * every order granting a new trial shall specify the grounds therefor * * Rule 78.01 requires that “* * * Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.” And Rule 83.06 provides that “When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent; * * *” and, further, “If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.”

Those Rules, as defendant points out, deal with the granting of new trials, whereas our concern is with an order sustaining defendant’s motion for judgment in accordance with its motion for a directed verdict, without any new trial. Such an order comes within the special purview of Rule 72.02 which does not, in terms at least, require that the grounds on which it is based be specified in it. Defendant suggests that, considering the care with which the Rules were drafted and the precautionary repetition of the requirement in those relating to the granting of new trials, the omission of any similar requirement in Rule 72.02 was not inadvertent but in line with a policy of relieving the trial court of the tedious formality of restating in its order one or more of the grounds already set forth with' particularity in the motion. Not so, says plaintiff, citing Willis v. Willis, Mo.App., 274 S.W.2d 621, loc. cit. 625-626, where the Springfield Court of Appeals, in ruling a somewhat similar question, used this language of apparently contrary import: “It logically follows that the considerations which motivated legislative imposition of the quoted requirements and judicial declaration of the stated presumptions with respect to the granting of a new trial would, a fortiori, compel recognition and application of the same requirements and presumptions with respect to action of a trial court in not only setting aside a judgment theretofore validly entered but also, upon the same evidence and without retrial, rendering a new judgment for the opposite party.”

It is unnecessary for us to resolve any conflict between those views. The trial court’s order, whatever its technical imperfections may be, is not null and void. The most that can be said of it is that the omission to specify the ground upon which it was based raises a presumption, albeit a rebuttable presumption, that it was erroneous, with the result that “the burden of supporting such action is placed on respondent.” We think defendant-respondent has borne that burden, if only by bringing convincingly to our attention the fact that plaintiff wholly failed to make a submissible case. It would be a curious thing if we were obliged to reinstate a groundless and improper verdict simply because the trial court neglected to spell out its shortcomings in the order setting it aside. We think no construction of the Rules consistent with their avowed purpose of promoting the administration of justice would lead to that result.

The order sustaining defendant’s motion for judgment in accordance with its motion for a directed verdict should be affirmed.

The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of COTTEY, Special Commissioner, is adopted as the opinion of this court.

The order sustaining defendant’s motion for judgment in accordance with its motion for a directed verdict is accordingly affirmed.

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


author: WOLFE, Judge.

text:
    Leroy E. GERFERS, (Plaintiff) Appellant, v. MISSOURI-ILLINOIS TRACTOR AND EQUIPMENT COMPANY, Inc., a Corporation, (Defendant) Respondent.
    No. 31276.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.

      Henry C. Stoll, Hinkel & Carey, William L. Mason, Jr., St. Louis, for appellant,
    Rene J. Lusser, Rene E. L.usser, Lusser & Morris, St. Louis, for respondent.
   WOLFE, Judge.

The plaintiff brings this action to recover damages for personal injuries which he suffered. The injuries were occasioned by an accident that occurred when he was working on a tractor leased to his employer by the defendant tractor and equipment company. There was a verdict and judgment for the plaintiff in the sum of $9,OCX). The defendant filed a motion to set aside the verdict and judgment, and to enter a judgment for the defendant in accordance with its motion for a directed verdict filed at the close of the evidence. The court sustained this motion setting aside the verdict and judgment, and entered a new judgment in favor .of the defendant. The plaintiff in due time appealed, and seeks to have the original verdict .and judgment reinstated.

The facts of the matter are to be drawn from the plaintiff’s evidence, as the defendant stood upon its motion for a directed verdict to close the plaintiff’s case. There is no dispute about any material, fact before the court. It appears .from the evidence that the plaintiff was employed by a person named Gutermuth, who was a contractor engaged in the excavating business. The plaintiff’s work consisted of operating crawler-type tractors and other equipment.

On July 18, 1952, the plaintiff had completed his work shift and was asked by his employer to help put a crawler track on one of the tractors. He went to the tractor, where there were present four or five workmen and Mr. Gutermuth, his employer. The tractor was up- on blocks, and the track was on the ground beneath the wheels over which it was to run. The front wheel was an idler, and there were two central idlers or rollers over which the track had to be placed. The rear wheel over which the track operated was sprocketed to fit the inner portion of the track and to make it turn when in operation.

The object of the work was to put the strip of track on so that it ran over both the front and back wheels and rested upon the central rollers. When it was so positioned, the ends were to be fastened together by a pin designed for that purpose. When the track was in proper position for connecting the ends, it was found that the ends did not meet and that there was a space of about six inches between them.

In order to bring it together so that the ends could be buckled, another machine was brought up. This was called a “cherry picker”, and was a crawler tractor equipped with a power crane. The crane consisted of a boom that moved in a lateral and vertical arc with a cable extending from the end of the boom. The cable was pulled by a power winch. The cherry picker was placed in front of the tractor upon which the men were working, and the cable was attached to the end link in the part of the track that came over the sprocketed wheel on the rear of the tractor. The purpose of this was to pull the back end of the track forward so that it could be buckled to the front end. As stated, the tractor was up on blocks. With the motor running, the sprocketed back wheel could be put in reverse motion to exercise a pull on the track opposite to the pull by the cherry picker. It was intended in this manner to stretch the track by taking up any slack between the links.

One difficulty with the operation was that the pull by the cherry picker was not only forward but somewhat upward. This would prevent bringing the ends into a buckling position when the proper length had been obtained. In order to overcome this lifting of the track, a long timber was placed over the pulling cable, with one end of the timber under the tractor frame and with the timber projecting at a right angle for about twelve feet out from the side of the tractor so that it could be used as a lever to hold the cable down.

The men present would put their weight upon the far end of the improvised lever. When the tractor was engaged in a forward motion the cable would slacken, and when the motor was reversed to a backward motion the cable became taut. The forward and alternate backward pull had been accomplished several times, moving the track just two or three inches with each operation. The distance between the ends to be buckled had thus been reduced to about two inches.

When the operation had progressed to this point, the plaintiff was on the far end of the timber so that his weight would hold the cable down. The motor of the tractor was put in reverse and the cable became taut. This threw the timber upward. The plaintiff fell from it and the timber came down and struck the plaintiff, inflicting the injuries for which he seeks recovery.

At the time of the accident a man named Gage was seated on the tractor and operating the controls. He was employed as a skilled mechanic by the defendant tractor and equipment company. He was called by the plaintiff as a witness. He testified that the defendant company leased and sold equipment, such as graders, cranes, tractors, and other machines of similar character. The defendant company sent him out to do mechanical work on various machines that they had sold or leased to contractors. About fifty to seventy-five percent of his time was spent on such work away from the shop of the defendant. His wages were paid by the defendant tractor and equipment company, and the person for whom the work was done was billed for the services rendered by the defendant. He was usually instructed by the defendant as to the particular work which he was to do for a customer, but if the customer’s credit was good he could do other work at the customer’s request.

He had been sent to the contractor Guter-muth to put a new transmission in the tractor above mentioned. He had done this work, and after completing it he had worked on the motor of another piece of equipment. He also had finished his normal day’s work when he was asked by Gutermuth to help put the crawler track on the tractor that he had previously repaired. He went to the site of the work, and there were four or five men working at the job replacing the track, with Gutermuth supervising the work. At Gutermuth’s request he got on the tractor and sat in the driver’s seat. He could not see the crawler track of the tractor from the seat, and he was directed by Gutermuth as to when to move the track forward and when to back it up. On the question of directions by Gutermuth, the plaintiff stated: “I don’t recall, I don’t recall getting much instructions from anyone, we just let the workers trying to put the track on, they were pretty well putting on that type of work, I don’t recall too much instructions from anyone.” The plaintiff, however, at no time contradicted the statement by Gage that he operated the controls of the tractor as directed by Guter-muth. At Gutermuth’s direction he put the tractor in reverse, and the tightening of the cable of the cherry picker caused the resulting accident to the plaintiff, as stated above. An employee of Gutermuth was operating the cherry picker which exerted the pull forward. Gage testified that he had never seen an operation such as Guter-muth was conducting in his efforts to put the track on the tractor.

It was upon the foregoing evidence that the jury found for the plaintiff, and the court, in accordance with defendant’s motion, set aside the verdict and judgment and entered a judgment for the defendant. The court held that Gage was not acting within the scope of his employment with the defendant equipment and tractor company at the time of the occurrence. It held that he was, as a matter of law, a servant of Guter-muth at the time that the plaintiff was injured, and that therefore the defendant was not liable.

It is the plaintiff’s contention that the court erred and that the defendant Missouri-Illinois Tractor and Equipment Company, as general employer of Gage, is liable for Gage’s negligence.

This presents a borrowed-servant problem. The basis of holding a master liable for the act of the servant rests upon the maxim “respondeat superior”. This simply means that the master must respond in damages if another is injured by the negligence of the master’s servant in doing the master’s work. Liability for the tortious act is to be determined by the facts which disclose whether or not the tortious act was done while the servant was acting within the scope of his employment. 3 Am.Jur.2d, § 267; 35 Am.Jur. § 552; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R. 1381; Douglas v. National Life & Accident Ins. Co., 236 Mo.App. 467, 155 S.W.2d 267. When the servant is borrowed there frequently arises a question as to whether he is the servant of the borrower or the lender at the time of a tortious act. This is the problem presented here.

The plaintiff asserts that Gage was in the general employ of the defendant at the time in question. There is no dispute as to this. In asserting the liability of the general employer the plaintiff places his reliance chiefly upon two cases: O’Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085, and State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457.

The O’Brien case was a suit against an undertaker who for a consideration loaned a truck and a driver to another undertaker to carry flowers. The truck collided with an automobile in which the plaintiff in the case was riding, and she sued the owner of the truck. The court held that the driver of the truck was not under the control of the borrowing undertaker, but was under the control of the lender. The track and driver were loaned for a specific purpose and were engaged in the work for which they were loaned. The driver received practically no directions from the borrowing undertaker. It was quite obvious that the lending general employer was liable for the tort of the driver.

Factually, the case of State v. Shain, supra, is quite similar. There the servant, the driver of the truck, was employed and directed by an independent contractor, and the party for whom the contractor was working was held to be not liable for the driver’s tort.

Neither of these cases conforms to the facts before us. More in point, yet still differing somewhat from the facts present here, is the case of McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 136 A.L.R. 516. In that case a WPA worker was injured when he fell from a tractor owned by the Dixie Machinery & Equipment Co. The driver and the tractor were rented to the City of Kansas City for WPA work, and the driver operated the tractor under the direction and control of the WPA superintendent. The court held that the lending master was not liable. It stated (153 S.W.2d 1. c. p. 72) : “* * * an employer is liable ‘only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to he charged with the result of the wrong at the time of the injury, and in respect of the very transaction out of which the injury arose.’ ” See, also, Patton v. Patton, Mo., 308 S.W.2d 739, and Coble v. Economy Forms Corporation, Mo.App., 304 S.W.2d 47.

In McFarland v. Dixie Machinery & Equipment Co., supra, the court quoted with approval from the American Law; Institute’s Restatement of Agency (sec. 227) :

“Since the question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would be likely to obey the directions of the general employer in case of conflict of orders.. The question is as to whether it is understood between him and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act.”

Further, in the same section of the Restatement, it is said (p. 504):

“The fact that he obeys the requests of the temporary employer as to the act does not necessarily cause him to be the servant of such employer. If, however, the temporary employer exercises such control over the conduct of the employee as would make the employee his servant were it not for his general employment, the employee as to such act becomes a servant of the temporary employer.”

The Restatement illustrates the above statement in part as follows:

“P rents to B for a week a truck and a driver, A, at two dollars per hour, to do general express work, but not to load or unload the truck. A, however, at B’s request and under his directions, loads the truck. In this, A is the servant of B.”

The foregoing example falls within the facts here under consideration. Gage was sent to do the work of a skilled mechanic. He was asked by Gutermuth to operate the tractor, which was something not in any way connected with the skills for which he was employed. He was completely under Gutérmuth’s direction, and from his seat on the tractor he could not even see the progress of the work that Gutermuth was directing. For these reasons it is apparent that the court properly entered a judgment for the defendant equipment and tractor company.

The judgment is affirmed.

RUDDY, P. J., and WILLIAM M. KIM-BERLIN, Special Judge, concur.


text:
    CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Anthony J. MIKES, (Defendant) Respondent. CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Charles Bud ELLIOTT, (Defendant) Respondent. CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Joan Faith WARE, (Defendant) Respondent.
    Nos. 30733-30757.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.
    Rehearing Denied Dec. 9, 19C3.
    Thomas J. Neenan, City Counselor, Eugene P. Freeman, Associate City Counselor, Stephen M. Hereford, Assistant City Counselor, St. Louis, for appellant.
    James J. Rankin, Richard Wolff, St. Louis, for respondents.
   WOLFE, Judge.

The matter here considered involves twenty-five appeals. All arise out of charges of certain ordinance violations which are based upon the same set of facts, except for the dates that the violations were charged to have occurred. By permission of this court and upon stipulation of counsel, the appeals were consolidated for briefing and argument, and all will be passed upon by this opinion. There was an acquittal of all defendants upon trial in the Court of Criminal Correction, and the City of St. Louis prosecutes these appeals.

Defendants Mikes and Elliott were charged under an ordinance known as Section 38, Chapter 46, Revised Code of St. Louis. This ordinance provides in part that any person who shall “permit to be exhibited or performed, upon premises under his management or control, any indecent, immoral or lewd play or other representation shall be deemed guilty of a misdemeanor.”

Defendant Ware was charged under Section 37, Chapter 46, Revised Code of St. Louis, which provides that any person who shall appear in a public place “in a state of nudity or in a dress not belonging to his or her sex in an indecent or lewd dress, or shall make an indecent exposure of his or her person, or be guilty of an indecent or lewd act of behaviour shall be guilty of a misdemeanor.”

These charges arose out of a performance by defendant Joan Faith Ware. The same performance was put on nightly in a tavern called “Stardust Lounge”. This place was owned and operated by a corporation known as “Stardust Lounge, Incorporated”. Defendant Elliott was president of the corporation. On nine different occasions defendant Ware was arrested by police officers who viewed her performance. On seven of these occasions both defendants Elliott and Mikes were present, and both were arrested. On two occasions, only Elliott was present, at which time he was arrested with defendant Ware. These arrests started on June 13, I960, and continued through June 22, 1960.

It was conceded upon trial that Mikes and Elliott employed defendant Ware to perform her act, and that it was performed with their permission upon premises under their control. Because of this there remained but one issue to be tried, and that was whether defendant Ware was guilty. If she was guilty, then so were defendants Mikes and Elliott.

These cases were first tried in the City Court, and that trial resulted in acquittal on all charges. The City of St. Louis appealed to the Court of Criminal Correction. There a jury was waived, and, as-stated, upon trial to the court all defendants were again acquitted upon all charges. It is from these judgments of acquittal that the City prosecutes these appeals.

For the reasons stated above, the evidence presented in the Court of Criminal Correction was limited to the determination of whether or not the acts and performance of defendant Ware were lewd and indecent. The performance took place in a room described by the police officer as being about SO feet by 50 feet in area. There was a bar at which customers could be seated for service and a smaller bar for preparing drinks to be served at tables. The room was otherwise furnished with tables and chairs, except for a small space used for social dancing by the customers of the establishment. There was a three-piece orchestra provided. The floor show was conducted in the dancing area, which consisted of an entertainer telling jokes for about a half hour and the performance by defendant Ware. Her act started from a small, round, revolving platform which looked like the top of a rather large bird bath, with simulated spouts of water which arched upward from its rim. This platform was located about 10 feet from the nearest tables.

Defendant Ware started her performance by mounting the platform. The platform revolved slowly as the three-piece orchestra played. When the defendant mounted the platform she was fully clothed. She was wearing an evening gown, with a scarf covering her head. As the music played and the platform slowly revolved, the defendant assumed various simple poses with her hands and arms. She also displayed her leg through a drape or slit in her dress. She then started to remove her •clothing. She proceeded slowly to remove the scarf about her head. Then she removed part of her dress covering the upper part of her torso. As she removed the various parts of clothing, she dropped them into a container near the platform. She slowly removed her skirt, and after holding it at arm’s length, dropped it into a container. At this point in her disrobing, she was wearing a brassiere and a scant pair of underpants. Attached to the top of the pants, or to a belt of sorts, were transparent panels, one in front and two in the rear. She then went through some gyrations in time to the music, and assumed some poses. This was followed by her descent from the platform to the dance floor. She sat on the floor close to the customers and went through some more body gyrations.

After this she went to the side of the platform .and simulated pouring water from a jug. She then removed an outer brassiere, which she dropped into the container. Under this outer brassiere she was wearing another one, sheer but bespangled and scant. She then returned to the dance floor and went through some more gyrations, after which she returned to the platform and removed the panels which were attached to her costume. The tempo of the music changed, and in a standing position she grasped her ankles and shook her buttocks from side to side. Then standing erect, she did some hip movements. Returning again to the dance floor, she assumed a semi-kneeling position in front of the platform and moved her torso in an up-and-down motion. At this time she was clad in what might best be described as a very scant brassiere and pants. She turned facing the audience, and some of those present yelled, “More, more — take it off. More, more.” This end'ed the performance.

A number of photographs and motion pictures had been taken of the act by the police officers. These were before the trial court and shown here on. appeal. Three witnesses who viewed the motion pictures stated that they considered the performance below the moral standards of the City of St. Louis. A dancing instructor, who had been so engaged for many years, testified that the performance was not dancing, and that there were but a few times during the performance that any recognizable dance steps were taken by the defendant.

The defendants called two witnesses, who found nothing objectionable in the dance. One of them testified that there was a motion picture shown in St. Louis, called “Expresso Bango”, in which there was considerable female nudity. ' There was evidence submitted that there were burlesque shows in St. Louis. In addition to the foregoing, a motion picture of a very short portion of the play “Kismet”, which had been put on by the Municipal Opera, was shown in evidence. The part shown was an oriental dance which fitted into the plot of the play. The dancer was much more fully clothed than defendant Ware had been.

Defendant Elliott testified that he had been engaged in the operation of tavern-type night clubs in St. Louis for a number of years, and that he employed girl dancers who took off part of their clothing. He said that defendant Ware’s dance was only eight to ten minutes in length, and that his whole floor show, which consisted in part of music and an impersonator, required a full hour to put on.

Defendant Ware testified that she was an “exotic dancer” by profession. She said that she had studied at many dancing schools. She stated that none of them taught exotic dancing; that her dance, the “Fountain of Love”, was a dance of her own arrangement and was of Grecian motif.

The motion pictures, the .photographs, and the foregoing facts constituted all of the pertinent evidence before the trial court which, as stated, found the defendants not guilty. . . •

There is no question raised as to the right of the City to appeal from a judgment for the defendant in a proceeding for violation of an ordinance. Insofar as the right of appeal is concerned, such action is civil in nature, and the City has the same right to appeal as any other party to a civil action. Section 3, Article XII, The Charter of the City of St. Louis; City of St. Louis v. Penrod, Mo.App., 332 S.W.2d 34; City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935.

The only point raised by the appeal is that the court’s judgment was erroneous in that it reached the conclusion that the defendants were not guilty by giving weight to immaterial and irrelevant evidence. The court made a finding that there was a dance in the play “Kismet” which was known as “bumps and grinds”. It also found that there was a motion picture shown in St. Louis, called “Expresso Bango”, in which there were women scantilly dressed. It found that there had been burlesque shows in St. Louis for many years, and that night clubs offered entertainment similar to that performed by defendant Ware. Without any further finding, and in apparent reliance upon the finding that burlesque, night club shows, and dancers on a par with the act of the defendant had been shown in St. Louis, and that a lewd motion picture had been shown, the court concluded that the City had failed to make a case against the defendants.

The fact that the court rested its opinion solely upon this is fortified by a statement made by the Judge in response to the request of the City Attorney for time to file a brief. This request came at the close of the evidence and after counsel for the defendants had moved to dismiss the cases. The following colloquy took place:

“THE COURT: I’m inclined to agree with Mr. Rankin. I have heard this case for two days, and I don’t think the City has shown a case against the defendants. How can such a dance be permitted at the Opera, which is a matter of a few blocks away from the defendant’s premises? How can they permit such a showing at the Pageant Theater, which is in the same general area?
“MR. FREEMAN: Does the Court want arguments on this point?
“THE COURT: No, my mind is made up.”

From the foregoing it is evident that the court did not pass upon the question before it. The evidence that there were other performances, motion pictures, etc., which may or may not have been equally or more susceptible of being classified as lewd and indecent, was of questionable value as a measure of the quality of the performance here considered. Community tolerance of obscenity does not establish community standards of morality or make obscenity less obscene. Clarke v. United States, Municipal Court of Appeals for the District of Columbia, 160 A.2d 97; Commonwealth v. Donaducy, Superior Court of Pennsylvania, 167 Pa.Super. 611, 76 A.2d 440.

The question of what is indecent, lewd, or obscene — and the words are used interchangeably in many statutes and cases — has been difficult for the courts to define. Much has been written on the subject in opinions dealing with the use of the mail. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639. Both of these cases deal with the construction of the federal statute. The case of Manual Enterprises v. Day, with one concurring opinion and one dissenting opinion, covers a total of 44 pages, with the dissenter concluding that the majority opinion “requires the United States Post Office to be the world’s largest disseminator of smut and Grand Informer of the names and places where obscene material may be obtained.”

These cases are of little aid in formulating a definition of indecent, lewd, or obscene. Perhaps the most acceptable definition is contained in the American Law Institute’s Model Penal Code, Tentative Draft No. 6. There obscenity is defined in part as "material which appeals predominately to prurient interest in sexual matters and which goes beyond customary freedom of expression.” It goes on to say: “ * * ‘appeal to prurient interest’ refers to qualities of the material itself: the capacity to attract individuals eager for a forbidden look.” The first part of this definition follows the definition heretofore used in such cases as In re Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d 519.

It seems, however, that there are areas in which attempted definitions confuse rather than enlighten. Indecency, lewdness, and obscenity may in many forms and in many ways offend. On the other hand, art and sincere graphic writing may appear lewd to some but wholesomely delightful and instructive to others. We are of the opinion that the Missouri Supreme Court, in State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, 1. c. 286, stated the manner in which the subject should be reviewed when it said: “* * * judges may know what falls within the classification of the decent, the chaste and the pure in either social life or in publications, and what must be deemed obscene and lewd and immoral and scandalous and lascivious.”

We have viewed and considered objectively the pictures of the performance here in question, and find the performance nothing more than modern burlesque. It was as devoid of art and beauty as a garbage pail, and was just “dirt for dirt’s sake”. The defendants violated the ordinances in question. Adams Theatre Co. v. Keenan, supra.

We therefore reverse and remand all of the cases to the Court of Criminal Correction for action consistent with the views herein expressed.

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


author: PHIL H. COOK, Special Judge.

text:
    In the Interest of J-O-, a child under seventeen years of age.
    No. 31091.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.

      Gordon E. Eliseuson, Clayton, for appellant.
    Charles P. Moll, Pros. Atty., Franklin County, Union, for respondent.
   PHIL H. COOK, Special Judge.

This was a proceeding under Chapter 21.1 RSMo 1959, in the Juvenile Court of Franklin County on a petition filed by the Juvenile Officer of the county charging that J. O., a child under the age of seventeen years, was a neglected child and in need of care and treatment. After a hearing, the trial judge ordered that J. O. be made a ward of the court under the supervision of the Franklin County Department of Welfare and placed her in the custody of her uncle and aunt, H. O. and M. O., reserving certain visitation privileges to M. O., the natural father of J. O. From this judgment, Mr. O. has appealed.

Appéllant first complains that the court erred in admitting, over his objection as hearsay, certain statements made by him to third parties concerning treatment J. was receiving in the home of appellant and his present wife, a stepmother of J. Appellant bases his argument on the assumption that he “is not a party to the proceeding”, and his statements to third parties “cannot be said to be admissions’ agáin’st interest and thus admissible as an exception to the hearsay rule.” He cites Mash v. Missouri Pacific R. Co., Mo., 341 S.W.2d 822, and McKenzie Transport Leasing Co. v. St. Louis Public Service Co., Mo.App., 349 S.W.2d 370.

Prior to these proceedings, appellant, M. O., had the actual and legal custody of J-. The purpose of this proceeding was to terminate or suspend his right to that custody. He had a natural and legal interest in the subject matter of the case, to-wit: The welfare and custody of his daughter, J. Pie was present 'at the hearing with counsel and testified in his own behalf. Chapter 211 RSMo 1959, provides that the person who has custody of a child shall be summoned; that if the person who has custody is not the parent, then the parent “shall also be notified”; that “a capias may be issued for the parent”; that a parent has the right to petition for a modification of the Order of Custody; that costs may.be adjudged against the parent; and that a parent has the right of appeal (which right was exercised in this case).

We rule that appellant - was a party to this proceeding. It follows that statements made by the appellant to third persons relative to neglect and mistreatment of J- while she was in his custody and living with him were properly admitted in evidence as admissions by a party to the action. Roush v. Alkire Truck Lines, Inc., Mo., 299 S.W.2d 518.

The second and final complaint of appellant is that “there was no substantial evidence to support” the judgment of the Court. 'The trial court found' that M. O., natural father of J. and appellant herein, had “failed and refused to give said child the necessary care and protection for her welfare; that the environment and associations of said child are injurious to her welfare; and further that said child is in need of care and treatment”.

J., who was twelve years old at the time of the trial, had lived with Mr. and Mrs. O., her father and stepmother, since she was two and a half years old. Mr. and Mrs. O. had been separated on several occasions. Mrs. O. testified that they “had some pretty serious arguments when he was drinking”. Drinking had not been a problem for the last two or three years. About three years before this trial, Mrs. O. had Mr. O. arrested. He was fined, sentenced to thirty days, and paroled. The parole was later revoked for a few days and he was again paroled.

J. testified that about once a week Mrs. O. whipped her with her hands, a belt, or a peach stick, many times without cause or reason. “A lot of times” Mrs. O. “just wouldn’t fix no supper”. Once, Mrs. O. sent her to school with a banana and some crackers for her lunch. Mr. and Mrs. O. had fights or would fuss, every week or so. “Mom has hit Daddy a lot of times”.

Several witnesses testified that Mr. O. complained many times that Mrs. O. didn’t feed J. properly, and “was always knocking her around and hollering and screaming at her, whether she did it right or wrong, it was always the same”. About seven weeks before the trial, Mr. and Mrs. O. separated for two or three weeks. “She threw me out, threw the clothes behind me and said, ‘get out’”. Mr. O. and J. lived together in a trailer during this separation. Ten days before the trial, J. ran away from home. John T. Giebler, Juvenile Officer, testified that after finding J. he tried to get her to go back home. He asked her uncles and aunts to try to convince her to return to her home. J. refused and stated that if taken home, she would run away again. On the day of trial, J. told the court that she still didn’t want to go back and live with Mr. and Mrs. O.

Mr. and Mrs. O. denied all the evidence as to the mistreatment of J., and stated that they loved her and wanted her returned to their home. Mr. O. denied that he had complained to others about Mrs. O.’s treatment of J. Mr. O. testified that he had no objection to the way Mrs. O. treated J. Several witnesses testified that they had never seen J. mistreated.

Appellant, in his brief, concedes that “it is true that there was more than a normal amount of domestic discord in the O. home, which certainly affects the well-being of J. to some degree”, but insists “there is no evidence that such discord was so serious as to substantially affect the child’s welfare”.

We recognize that the law presumes that the interest of a child is best served by awarding its custody to the parent and that a parent is not to be deprived of the companionship of his child except for grave reasons. State of Missouri v. Greer, Mo.App., 311 S.W.2d 49. In re M- P- S-, Mo.App., 342 S.W.2d 277. Still, under the facts of this case we cannot say that the trial court erred. We must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Section 510.-310 RSMo 1959. Likewise, in this case we must give due regard to the opportunity of the trial court to assess the determination of a twelve-year-old girl to “run away again” if required to return to her home. We believe that the trial judge was motivated by what he believed was best for the child and we rule that there was sufficient evidence to justify the judgment.

The judgment is affirmed.

ANDERSON, P. J., and SAM C BLAIR, Special Judge, concur.