author: COIL, Commissioner.

text:
    Edward F. RODDY, Respondent, v. GENERAL MOTORS CORPORATION, Appellant.
    No. 50477.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 13, 1964.

      Lyng, Mac Leod, Donnelly & Corcoran, Russell N. Mac Leod, John D. Connaghan, St. Louis, for (plaintiff) respondent.
    Chapman, Chapman & Litz, Wilton D. Chapman, Thomas W. Chapman, Arthur Litz, St. Louis, for (defendant) appellant.
   COIL, Commissioner.

A jury awarded Edward F. Roddy $18,000' as damages for personal injuries he averred he had received as a result of the alleged negligence of General Motors Corporation. That company has appealed from the ensuing judgment and contends the trial court erred in refusing to direct a verdict for it at the close of all the evidence.

The only witness on the issue of liability (there is no present question concerning the nature and extent of the injuries or the amount of the award) was the plaintiff, who testified in his behalf and was recalled to the stand by the defendant as the only witness in its case. In summarizing plaintiff’s testimony we shall put that construction upon it which is favorable to him.

Mr. Roddy was and had been for 25 years a steam fitter. He was employed by the Corrigan Company, a piping contractor. He and a fellow employee, Mr. Moran, had been working at the General Motors plant at Union and Natural Bridge for a month or six weeks. When plaintiff and Moran returned from lunch on March 7, 1956, their job was to remove a pressure-reducing station. A pressure-reducing station consists of pipes, fittings, valves, etc., assembled in a certain way. The purpose of the station was to reduce the 165-pound pressure in the main steam line to a pressure of 50 pounds. Apparently the reason for the pressure reduction at the place in question no longer existed and thus the pressure-reducing apparatus was to be removed. Plaintiff and Moran went to a part of or room in the plant on the second floor where automobile bodies came out of paint ovens on an assembly line and where General Motors employees would correct any paint flaws. That assembly line was in operation while plaintiff and Moran were working some fifteen feet above.

The main 165-pound line probably ran throughout the entire plant; but in the area in question the pipe (carrying the steam) or the line ran vertically (apparently) through the floor of the room in question and then toward the ceiling for approximately 15 feet. One end of a 4-inch nipple (a short length of pipe not exceeding six inches in length and usually with threads on both ends) had been welded into the main line. About one half the length of that nipple was covered with insulation. The threaded end of the nipple connected with a gate valve (a device to shut off or stop the flow of steam at the point of the valve). Extending vertically out of the top of the gate valve was another nipple probably six inches long attached to the top end of which was a 90-degree elbow (a piece of pipe which changed direction from vertical to horizontal) which in turn continued into the first (a strainer) of the various parts of the apparatus which made up the pressure-reducing station. The area occupied by parts making up the station was about 4 feet long and 1^4 feet wide. As assembled it hung from the ceiling on 3/8-inch rods which supported the weight of the assembled pipes and fittings.

In order to disassemble and remove the reducing station it was necessary that plaintiff and Moran stand or crouch upon a “pipe cluster.” The “cluster” consisted of 20 or 30 pipelines and conduits for air, steam, and water, and perhaps other purposes, which, as noted, were about 15 feet above the floor of the room in which they were working and above the lights which lighted the room and the assembly line below. Consequently, the area in which they worked was poorly lighted and relatively dark.

Plaintiff testified that he understood there had been some discussion about shutting off the pressure in the main line completely, but that such was not done and consequently he made certain the gate valve was closed, was not leaking, and that no steam was passing beyond it, so that there was no steam in the pipes of the pressure-reducing station while they were working on it.

The various pipes and fittings, etc., which made up the reducing station were removed in sections beginning with the section farthest from the main line. The sections were lowered to the floor by ropes. The last item which was to be removed and thus the item closest to the elbow connecting with the nipple which ran vertically from the gate valve, was a fitting called a strainer. They were adjusting their wrenches preparatory to removing the strainer and were about one or two feet from the gate valve. Possibly they had touched the strainer with their wrenches to determine the degree of adjustment needed so the wrenches would fit the particular pipe, when there was an “explosion.” It was later determined that the nipple (heretofore described), with one end welded into the main line and the other attached to the gate valve, blew open and the steam was released with “a roar” and caused plaintiff to fall from the pipe cluster 15 feet to the floor of the room.

Plaintiff was removed to a hospital where at a later date one of his fellow steam fitters showed him the nipple which had been welded into the main line and he observed that the wall of that nipple was “as thin as a piece of paper.” He said he did not know what caused the explosion but that he was told while in the hospital that the explosion resulted because the 4-inch nipple that had been welded into the main line did not have enough thickness of wall. He said that it probably would not have broken had it been thicker, and that he knew, after being told, that the wall of the nipple giving way was what caused the steam to be released.

Plaintiff testified that he had nothing to do with the nipple that had been welded into the main steam line; that he and his fellow workman did not touch it; that none of their work had anything to do with that nipple or with the live steam line; that while there could have been some slight movement of the pipes as they worked, only theoretically could there have been any pressure on the nipple (which gave way) by reason of .their disassembling the pipes making up the pressure-reducing station or by reason of their being or moving upon the “pipe cluster.”

There was “quite a bit” of work going on at the General Motors plant in 1956, but plaintiff did not know whether what they were doing on March 7 was part of the general renovating and dismantling work that was in progress. He and Moran were told to remove the pressure-reducing station apparently without explanation or further comment.

Defendant admitted that it was the owner of the premises, including all the pipes and fittings that were involved on March 7, 1956.

Defendant contends first that the trial court erred in refusing to direct a verdict for the stated reason that the instrumentality which caused plaintiff’s injury was not under defendant’s management and control. There is, of course, no doubt that in Missouri the res ipsa loquitur doctrine usually applies only when the occurrence resulting in the injury was such as would not ordinarily happen if those in charge used commensurate care, the instrumentality involved was under the management and control of the defendant, and the defendant possessed superior knowledge or means of information as to the cause of the occurrence. Layton v. Palmer, Mo., 309 S.W.2d 561, 564[2]. It is also well established that “the requirement that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time” of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 560.

A review of plaintiff’s total testimony, from a standpoint favorable to him, reasonably requires the conclusion that defendant by reason of the ownership of the premises and of the pipes and fittings involved, including the live main steam line and the nipple, the wall of which gave way, had the management and control of the instrumentality involved. We point out that there was no evidence as to what the relationship was between defendant and the Corrigan Company. Thus there was no showing that defendant-owner did not retain the right and power to direct the manner of doing the work or retain the right to control the Corrigan Company in the performance of the work. Cf. Martin v. First National of Independence Co., Mo., 372 S.W.2d 919, 923[1].

The cases from other jurisdictions cited and relied upon by defendant for the proposition that there is no liability where one is injured by reason of defective machinery operated by or under the partial control of the injured plaintiff are not, even if otherwise sound, applicable here because there is no evidence in this case to show (the evidence was all to the contrary) that plaintiff or Moran were working on the main steam line, a part of which proved to be defective.

Clearly, the instrumentality which caused injury to plaintiff was under the control of the defendant within the meaning of the “control and management” condition prerequisite to the application of the res ipsa doctrine.

Defendant contends further that the trial court should have sustained its motion for a directed verdict because plaintiff showed the specific cause of his injury and thus was precluded from a res ipsa submission. Defendant filed a motion for a directed verdict at the close of the evidence, an after-judgment motion to set aside the verdict and judgment and enter judgment for it in accordance with its motion filed at the close of the evidence, and an alternative motion for new trial. We have examined those motions and we do not find in any of them an assignment that plaintiff was precluded from a res ipsa submission because he had proved specific negligence. Inasmuch as the allegation of error now urged was not presented to the trial court in any post-trial motion, the question has not been preserved for appellate review. Civil Rule 79.03; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234[S-7].

In any event, it is clear that even assuming plaintiff proved that the rupture of the nipple in question caused the steam to escape and plaintiff’s subsequent injury, plaintiff did not prove the specific negligence which caused the injury. Questions such as whether it was negligence to have installed a nipple, the gauge (i. e., the thickness of the wall) of which was too thin, or whether it had become too thin due to a subsequent cause such as defendant’s negligence in failing to properly maintain the line, or whether defendant negligently failed to properly inspect the line and its component parts, or whether the nipple gave way for other conceivable negligence, were not answered by the evidence. The specific reason for the failure of the wall of the nipple and the escape of the steam was peculiarly within the knowledge of the defendant, who offered no evidence on the subject.

We are of the view that plaintiff’s evidence did not show the specific negligence which caused the injury and thus that plaintiff was not precluded from a res ipsa submission. Stevens v. Missouri Pacific R.R. Co., Mo., 355 S.W.2d 122, 130; Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 101 [7].

Defendant stated in oral argument that it was not “pressing” the other reasons set forth in its brief in support of the contention that the trial court erred in failing to direct a verdict for it at the close of the evidence. Inasmuch, however, as defendant did not specifically abandon the points, we shall briefly note them.

It is contended that plaintiff was an employee of an independent contractor. We have heretofore noted that there was no substantial evidence showing the relationship between defendant and the Cor-rigan Company and thus there was no evidence to establish that plaintiff was the employee of an independent contractor.

It is urged that plaintiff was contrib-utorily negligent. In that respect, we note that although defendant pleaded plaintiff’s negligence, it did not submit that issue. Furthermore, the only new-trial assignment with respect to contributory negligence was that plaintiff’s verdict-directing instruction did not require a jury finding negativing contributory negligence on plaintiff’s part. When defendant failed to submit the affirmative defense of contributory negligence, he abandoned that defense and it no longer remained an issue for any purpose. Shepard v. Harris, Mo., 329 S.W.2d 1, 7, 8.

It may be that defendant may nevertheless properly urge on this appeal that plaintiff was contributorily negligent as a matter of law. The facts heretofore reviewed refute without further discussion or demonstration that even if there was sufficient evidence to have made a jury issue as to plaintiff’s negligence, we correctly may not hold that plaintiff was contributorily negligent as a matter of law.

Defendant finally suggests that there were two equally established reasons for plaintiff’s injury and that inasmuch as defendant was responsible for only one, plaintiff was not entitled to recover. The difficulty with that contention is that only by speculation and conjecture may it be said, as defendant contends, that anything plaintiff or his fellow worker did while removing the pressure-reducing station “put too much pressure on the nipple” or “violently or abruptly exerted” any “force * * * against it” or that plaintiff or Moran did anything else which proximately caused or contributed to cause the wall of the nipple in the main steam line to give way and injure plaintiff. Defendant’s theory in that respect was not supported by substantial evidence; hut in any event it was sufficient for plaintiff’s submissible case that there was substantial evidence supporting a reasonable inference that plaintiff’s injury resulted from defendant’s negligence. The fact that the nipple may have ruptured for a reason for which defendant was not liable, did not preclude plaintiff from submitting to the jury the question whether some negligence of defendant caused or contributed to cause the nipple wall to rupture. Leisure v. J. A. Bruening Co., Mo., 315 S.W.2d 705, 708[5, 6] [7].

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur except HENLEY, J., not sitting.


source: Caselaw Access Project

author: STORCKMAN, Presiding Judge.

license: Public Domain

text:
    In re ESTATE of May H. WILLIAMSON, Deceased, Clyde H. Williamson, Petitioner-Appellant, v. Ralph S. WILLIAMSON, Administrator Pendente Lite, Respondent.
    No. 50189.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Motion for Rehearing or Transfer to Court En Banc Denied July 13, 1964.

      Frank E. Morris, St. Louis, for respondent.
    Dale Reaban, Mortimer Rosecan, St. Louis, for appellant.
   STORCKMAN, Presiding Judge.

This proceeding was commenced in the probate court of the City of St. Louis under Section 473.357 RSMo 1959, V.A.M.S., to determine title to assets in the hands of the administrator pendente lite of the estate of May H. Williamson, deceased. The probate court found against the petitioner Clyde H. Williamson and he appealed to the circuit court where the administrator Ralph S. Williamson filed a motion to dismiss for failure of the petition to state a claim and on the further ground that the probate court lacked jurisdiction of the subject matter under § 473.-357, so that the circuit court acquired no jurisdiction on appeal. The motion was sustained and the petition was dismissed. The petitioner has appealed to this court.

Clyde H. and Ralph S. Williamson are sons of May H. Williamson who died testate on September 2, 1957. The petition filed by Clyde in the probate court alleges that the will was admitted to probate on September 24, 1957, and Ralph was appointed executor. A will contest was filed June 6, 1958, and thereafter Ralph was appointed administrator pendente lite. The petition further asserts that he and his mother were joint tenants in bank and savings and loan accounts and that he had legal title and possession of a sum of cash in a safe deposit box in his name to which his mother had access as a deputy; that after his mother’s death the administrator persuaded him to turn over these assets aggregating $37,520 on the fraudulent representation that it was necessary for tax purposes to deliver the property to the administrator and the balance after taxes would be transferred back to the petitioner as the legal owner. The prayer of the petition was that the court determine title to the savings account, the savings certificate and the cash and order and direct the administrator to return and deliver them to the petitioner or, in lieu thereof, pay to him the sum of $37,520 plus interest.

The answer filed by the administrator admits, as alleged by the petitioner, that May H. Williamson died testate on September 2, 1957, that her will dated April 12, 1957, was admitted to probate on September 24, 1957, and that Ralph S. Williamson was appointed executor; that notice of a will contest was filed on June 6, 1958, and thereafter on April 10, 1959, Ralph was appointed as administrator pendente lite of the estate and is in control and possession of all of its assets. The answer denies all other allegations of the petition and alleges that the petition cannot be maintained under the provisions of Section 473.357 RSMo 1959, V.A.M.S., in that the probate court does not have jurisdiction of the subject matter of the action and that the petition does not state a claim upon which relief can be granted. In the circuit court the administrator filed a separate motion to dismiss on the ground that the probate court did not have jurisdiction of the subject matter of the action, that the petition did not state a claim upon which relief could be granted, and that the circuit court was without jurisdiction on appeal.

The motion to dismiss was sustained by the circuit court on March 21, 1963. The trial judge filed a memorandum which stated in general that neither the probate court nor the circuit court on appeal had jurisdiction to entertain the petition; that the petition was insufficient in that it did not contain an allegation that the decedent was not the owner of the personal property described in the petition; that the statute was intended to cover the determination of title to “specific property” which was taken into possession by an administrator on the death of the decedent although it had not belonged to the decedent; that the petitioner could not make such allegation with respect to the savings account and savings certificate because of the nature of the ownership; and since the cash was commingled with other money assets it could not be specifically identified and was not within the purview of the term “personal property described therein” as used in § 473.357.

We are particularly concerned with the kind of property involved and the allegations with respect to title. The petitioner alleges that there were two savings accounts in the names of “May H. Williamson and Clyde H. Williamson, either or the survivor as joint tenants with the right of survivorship, and not as tenants in common”. One was for $9000 opened September 24, 1956; the other a savings certificate for $8000 was issued January 2, 1957. The passbook and the certificate were in the possession of petitioner when Mrs. Williamson died on September 2, 1957. On or about April 1, 1957, a joint checking account was opened in the names of May H. Williamson and Clyde H. Williamson with right of survivorship from which the petitioner rightfully withdrew the sum of $10,673.04 on August 20, 1957; that “on September 2, 1957, he was in possession of and had legal custody of the balance of said cash”; that on November 14, 1957, he purchased using said funds five U. S. Treasury bonds of the face value of $9000 and that he was the legal owner of said bonds. The petitioner further alleges that on September 2, 1957, and for a long time prior thereto he was the legal owner of $11,520 kept in a safe deposit box which box was “in the name of petitioner as owner and the said May H. Williamson as deputy”.

The petition further alleges that on December 26, 1957, the petitioner transferred to Ralph S. Williamson, then executor of the estate, the savings account and the savings certificate in reliance on the representation by the executor that, although the petitioner was the legal owner, such transfer was necessary “for tax purposes before said savings account and said savings certificate could go to petitioner as survivor and legal owner”, and that the administrator pendente lite is now in possession of the savings account and savings certificate and holding them as assets of the estate. On October 21, 1957, the petitioner transferred to the executor the sum of $11,520 in cash above described relying on the executor’s representation that, although the petitioner was the legal owner, such transfer was necessary “for tax purposes before the balance of said cash after taxes could be transferred back to petitioner as legal owner.” The administrator is now in possession of the cash and is holding it as an asset of the estate. The petition further alleges that without the knowledge and consent of the petitioner the executor improperly and wrongfully listed the five U. S. Treasury bonds as assets of the estate in the inventory dated and filed January 16, 1958; that on September 16, 1958, the petitioner delivered to the executor the sum of $9000 in cash, the matured value of the bonds, on the representation of the executor that since ■the bonds had been inventoried in the estate they must be turned over to the executor “for tax purposes, and the balance after taxes would be turned back to petitioner”, and the further representation that the executor would have to account for all assets listed in the inventory and deliver them to the administrator pendente lite; that the sum of cash in the amount of $9000 being the proceeds of the bonds is now in the possession of the administrator. The petition then alleges that the statement of Ralph S. Williamson, acting as executor of the estate, was false and untrue and made willfully, maliciously and wantonly in order to obtain custody and control of the property and list them as assets of the estate so that Ralph S. Williamson would benefit as sole beneficiary of the rest and residue under the will of May H. Williamson, deceased. The petitioner further alleges that he is and was at all times mentioned in the petition the legal and rightful owner and had legal title to the savings account, the savings certificate and the cash and is entitled to possession of them.

There are two principal questions presented on this 'appeal. One is whether the probate court has jurisdiction under § 473.-357 to determine title to the kind of property described in the petition. If the probate court has jurisdiction, the remaining question is whether the petition states a claim upon which relief can be granted.

Section 473.357 was originally enacted as a part of the new probate code effective January 1, 1956, and as amended, Laws 1959, S.B. 141, § 1, reads as follows:

“If a person files in the probate court a verified petition alleging that the decedent was not and that the petitioner is the owner of personal property described therein, and that it is in the possession of the executor or administrator, and alleges how he acquired ownership thereof and that possession of the property is being wrongfully withheld from him by the executor or administrator, and prays that the court determine the title thereto and order and direct the executor or administrator to deliver the property to the petitioner, a notice and a copy of the petition shall be served on the executor or administrator, who, within ten days thereafter, shall file answer to the petition. If the answer does not admit the allegations of the petition the matter shall be set for hearing by the court and tried upon the issues under the petition and answer, in a summary manner, and judgment shall be rendered according to the finding and for costs.”

The administrator contends that “this is not the type of claim for which Section 473.357 is intended to afford a remedy.” He asserts that the statute was designed to determine title and effect the recovery by the owner of “specific personal property” which may come into the possession of an administrator. He correctly points out that the statute is relatively new and has no parallel in earlier legislation.

The cases decided by our appellate courts involving similar proceedings are not determinative of the precise point here involved. Longacre v. Knowles, Mo., 333 S.W.2d 67, was an action to determine title to certain notes and bonds instituted in the probate court under § 473.357. The deter-initiation was made but the jurisdiction of the probate court to entertain the action was not presented or decided. Likewise in In re Patterson’s Estate, Mo., 348 S.W.2d 6, a petition to determine the ownership of a checking account and two savings and loan accounts was filed and disposed of without questioning the jurisdiction of the probate court. Masterson v. Plummer, Mo.App., 343 S.W.2d 352, was an action to determine title to two time certificates of deposits and the proceeds thereof which was instituted in the probate court under § 473.357. The Springfield Court of Appeals held that the deposit certificates executed by Mrs. Crowder payable to the order of herself or her son who was designated as the beneficiary showed an intention to create a trust and the son was entitled to the proceeds of the deposit certificates on the death of his mother. Again, however, the question of the probate court’s jurisdiction was not in issue.

The trial court in the instant case relied primarily on State ex rel. Meletio v. Hensley, Mo.App., 358 S.W.2d 85, wherein the Meletio Company filed a petition in the probate court to require the executrix to deliver to the corporation certain shares of its capital stock pursuant to a stock retirement agreement entered into between the corporation and its two principal shareholders upon payment by the corporation of the purchase price in accordance with the agreement. The St. Louis Court of Appeals held in a prohibition proceeding that the petition did not and could not state a cause of action because the petition affirmatively alleged that G. William Me-letio was the owner of the shares at the time of his death. State ex rel. Meletio v. Hensley does not rule the exact question before us.

In re Myers’ Estate, Mo.App., 368 S.W.2d 925, held that a probate court did not have jurisdiction under § 473.357 to determine the existence of a trust and to trace and recover trust funds arising from the fact that an agent commingled with his own funds in his bank account the money collected by him for the petitioner. Stress was laid upon the fact that there was no identifiable sum of money in the estate of the decedent as described in the petition. The case was transferred to this court and the judgment of the circuit court permitting recovery was affirmed. In re Myers’ Estate, Mo., 376 S.W.2d 219. This court held that the agreement between Mr. Myers and Laclede Gas Company created a specific trust fund to be held for the benefit of Laclede and that the probate court had jurisdiction to trace the money collected into the bank account of Mr. Myers. But the appellate courts have not had an occasion to determine in a comprehensive way the meaning of personal property as used in § 473.357.

The term “personal property” is defined in subdivision 25 of § 472.010 as follows: “When used in this Code, unless otherwise apparent from the context: * * * ‘Personal property’ includes interests in goods, money, choses in action, evidences of debt, shares of corporate stock and chattels real. * * Subdivision 5 of the statute provides that “Code” includes chapter 473. There are certain references in § 473.357 which apply more aptly to specific or tangible personal property, but it is not apparent from the entire context of § 473.357 that the statutory definition of personal property should not apply. In fact a more limited construction of the term would render the remedy incomplete. We deem it to be the legislative intent that the definition of “personal property” as provided in § 472.010, subd. 25, applies to the term as it is used in § 473.357.

Money is specifically mentioned in the definition of personal property and the passbook for the savings account and the savings certificate are within the meaning of choses in action and evidences a debt. We conclude that the subject matter described in the petition is within the purview of § 473.357. The probate court does not lack jurisdiction on this score.

The administrator further contends that the petition fails to state a claim under § 473.357 because it does not contain a sufficient allegation that “the decedent was not * * * the owner of personal property described therein”. The complete clause is that “the decedent was not and that the petitioner is the owner of personal property described therein”. Thus it appears that the petitioner must allege a presently existing ownership. As to the person whose estate is being administered, the required allegation is in the past tense. The use of the term “decedent” presents an incongruity if not confusion because a decedent is “a deceased person” whose title and dominion over property, in the nature of things, ceases with his death except as it is preserved and passed along under the protection of law. The word decedent, however, is sometimes used rather illogically, even in legal writings, by way of a brief reference to describe a person who was living at the time in question but is now deceased; such as, “the decedent was driving his automobile”. Apparently the term was so used in § 473.357.

The pertinent inquiry then is what is the critical time intended by the statute when the decedent was not the owner. The answer must be at the time of his death because, unless so owned, title cannot pass “to the persons to whom it is devised by his last will, or, in the absence of such disposition, to the persons who succeed to his estate as his heirs” subject to the possession of his executor or administrator for probate purposes in accordance with § 473.260. We conclude that § 473.357 should be interpreted as if it read “the decedent was not [at the time of his death] the owner of the personal property”. This result was foreshadowed in the Meletio case when the court stated: “Thus the petitioner concedes that the title to the stock was in the decedent at the time of his death, and not in the petitioner.” Emphasis added. 358 S.W.2d 85, 87.

The' interest of a co-tenant in a joint estate is extinguished by his death and the title of the survivor to the whole estate simply continues and is not a new interest or transfer of title. In re Gerling’s Estate, Mo., 303 S.W.2d 915; Osterloh’s Estate v. Carpenter, Mo., 337 S.W.2d 942. In both cases it was held that there was no transfer within the meaning of the inheritance tax statutes. Thus it is evident that the co-tenant of a joint estate who is the first to die does not at his death possess any title or interest which passes to his devisees or heirs under the succession statutes. Section 473.357 was intended to determine title in such situations as well as where a person had parted with title for a perceptible period of time prior to his death, or where a person who died had never been the owner of the personal property in question. We would be making a distinction without a difference to hold the statute not applicable.

Formal pleadings are not ordinarily required in any action filed in a probate court. In re Kaimann’s Estate, 360 Mo. 544, 229 S.W.2d 527, 529[1]. Nevertheless, where pleadings are required or undertaken, they should be sufficient to satisfy the requirements of good pleading. Sutton v. Libby, Mo.App., 201 S.W. 615, 617[3], Where a party desires to avail himself of a remedy or relief provided by a particular statute, he is not required to refer to the statute or use its terms literally, but he is required to plead facts which bring his case within the purview of the statute. Jones v. Chicago, B. & Q. R. Co., 343 Mo. 1104, 125 S.W.2d 5, 12[4].

Our decisions have generally ruled that a petition is not to be held insufficient merely because of lack of definiteness or uncertainty in an allegation or because of informality in the statement of an essential fact. Mathews v. Pratt, Mo., 367 S.W.2d 632, 634[3]. In determining whether a petition states a claim or cause of action, its allegations will be given a liberal construction according to their reasonable and fair intendments, and when so considered a petition is sufficient if its averments invoke substantive principles of law which entitle the petitioner to relief. Slicer v. W. J. Menefee Constr. Co., Mo., 270 S.W.2d 778, 780 [1]; Mathews v. Pratt, Mo., 367 S.W.2d 632, 634[1, 2]. Judged by these standards, the petition states a claim as to the property involved although greater certainty and definiteness would be desirable.

The statute makes no distinction as to whether the estate of the decedent obtains possession of the personal property by honest mistake or with wrongful intent. The petition does not fail to state a claim because it is alleged that the administrator obtained possession by fraudulent means.

The judgment is reversed and the cause remanded.

All of the Judges concur.


author: HOLMAN, Judge.

text:
    Walter D. THOMPSON, (Plaintiff) Appellant, v. H. W. KROEGER, d/b/a H. W. Kroeger Erection Company, and H. B. Deal Construction Company, (Defendants) Respondents.
    No. 50096.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 13, 1964.

      Benjamin Ray Carleno, Carleno & Nick, and John L. Doskocil, Ferguson, for plaintiff-appellant.
    Evans & Dixon, William Wallace Evans, St. Louis, for respondent, H. B. Deal Const. Co.
    John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent, H. W. Kroeger, d/b/a H. W. Kroeger Erection Co.
   HOLMAN, Judge.

Defendant, H. B. Deal Construction Company, was the general contractor engaged in the building of the Ballwin Plaza Shopping Center in St. Louis County. Defendant H. W. Kroeger (hereinafter generally referred to as defendant) had the subcontract to erect the steel on the project. The bricklaying work was done by another subcontractor, Steve Gorman Bricklaying Company. Plaintiff was employed by Gorman as a hodcarrier. On the morning of Julyl8, 1960, the bricklaying crew was working on an improvised scaffold which consisted of boards laid across steel ceiling joists that had been installed but not braced. Plaintiff sustained injuries in a fall which occurred when the joists deflected and gave way causing the boards and building materials thereon (as well as plaintiff) to fall to the ground. In this action the trial court sustained a motion for summary judgment in favor of defendant Deal. Upon a trial the jury returned a verdict in favor of the remaining defendant, H. W. Kroeger. Plaintiff has duly appealed from said judgments.

Plaintiff called as a witness Donald Peterson, one of defendant’s foremen. This witness testified that the accident occurred on a Monday morning at the southwest corner of the east wing of the building; that the ceiling joists in the building weigh approximately 500 pounds each; that most of the joists in that area had been set some time before that day but that the six joists next to the wall could not be set until certain construction had been completed; that on the morning in question he had a five-man crew operating a crane; that at 8 o’clock they set the six joists in question and then moved the crane to another part of the job and set a beam; that shortly thereafter he and another man went back to bridge the six joists (joists are bridged by attaching steel rods between them in the form of an “X”); that when he arrived at that place he found that the bricklaying crew had placed boards on the unbridged joists preparatory to working thereon; that he told a laborer there to remove the boards but the man ignored his request; that he then went to the expediter for the general contractor and told him they couldn’t finish the work on the joists until the boards were removed and the expediter stated that “he would take care of it”; that the accident in which plaintiff was injured occurred shortly thereafter.

On cross-examination Mr. Peterson testified as follows: “Q. Had you ever talked whh this bricklaying crew on this job about using your bar joists as scaffolding? A. Previously we had told them not to do it. Q. How long before, Don? A. It seemed like every time we turned around they were doing it. And every time we would see it we would tell them * * *. Q. when you say tell them, did that include the bricklayers, the foremen, the laborers and everybody working with them? A. Well, usually the man that was doing it at the time would be told and the bricklaying foreman had been told. I told him and I know Fred had told him before.” The witness did not remember whether or not he told plaintiff personally not to put boards on the joists, although he remembered having seen plaintiff on the job.

Defendant Kroeger was also called as a witness by plaintiff. Mr. Kroeger testified that he was at the site of this project on Thursday before plaintiff was injured and the six joists in question were not in place at that time. He conceded that the specifications stated that “as soon as joists have been erected bridging shall be installed between them before the application of construction loads.” He stated, however, that it was the general custom to set joists as much as a week or two before they are bridged; that joists are not only required to be bridged but are welded at one end to the steel beam; that he agreed with the statement of the “Institute on Steel Joists” that bridging should be completed before construction loads are placed on the joists; that it is not safe to place loads on joists that have not been bridged and welded into place.

On cross-examination defendant stated that he never gave anyone permission to put a construction load on unbridged joists; that it was the custom on a job of this kind that steel erectors could not direct the bricklayers to stay off the joists; that it is the contractor who should tell the men where to work; that he had no control over the laborers employed by other subcontractors, although he could warn them not to work on unbridged joists and his men did that on this occasion.

P'amtiff testified that the six joists here involved were in place and they were working on them the Friday before he was hurt on Monday; that he had not noticed whether the joists were braced but stated that if he had looked he could have seen whether or not they were braced; that it was the custom to use joists as scaffolding in doing some of the bricklaying; that he never received any warning to get off of these particular joists; that if he had noticed that the joists were not braced he wouldn’t have worked on them; that on the morning of July 18 he started to work at 7:30; that the hodcarriers start at that time so they can have the materials on the scaffold ready for the bricklayers who start at 8; that about 9:30 “there was a ‘boom’, and the thing collapsed with us and the bricks and mortar and mortar boards and drinking water barrel piled up on us.” On cross-examination plaintiff stated that it was one of his jobs to build scaffolding and to see that it is safe. He also conceded that two days after the accident an investigator came to his home and that he told the investigator that he, plaintiff, had told his foreman that morning that the place they were working wasn’t safe and that the foreman talked to the general superintendent and told plaintiff that it was safe and plaintiff went ahead and worked thereon. Plaintiff attempted to explain those statements by saying he had been talking about the canopy they had been working on the week before.

Leland Spotswood, an architect and registered engineer, was called as an expert' witness by plaintiff. He expressed the view that joists should always be bridged and welded before any construction load is placed thereon; that unbridged joists will hold considerable weight near the beam but are easily deflected near the center. He also agreed with the statement of the “Steel Joists Institute” that “as soon as joists are erected they should be bridged and fastened into place before application of loads.” He expressed the opinion that the average person in the construction field would not have known that unbridged joists were not strong. Upon cross-examination he stated that normally a steel subcontractor would have no right to issue orders to the bricklaying crew and that the general contractor should keep all workmen off of unbridged joists. He stated that if he saw some one on unbridged joists he would tell them to get off and if they did not do so he would report it to the general superintendent. This witness also 'stated that it was not unusual in the construction field to set joists and then use the equipment to set beams somewhere else before coming back and bridging the joists.

Elmer Wilson, one of the workmen in plaintiff’s crew, testified that the joists in question had been set the week before and they had worked on the boards placed thereon during that week; that it was customary to use steel joists for scaffolding and that no one had given him any warning that these joists were not safe to work on.

Defendant presented the testimony of Walter Lichius, general superintendent, and John Mincher, project engineer for Deal. Mr. Lichius stated that he would not approve of anyone going on joists until they had been braced. He denied that he had any conversation with the foreman of the bricklayers on the morning plaintiff was injured. On cross-examination he stated that it was generally known in the business that bricklayers use the steel joists to lay boards on in doing their work.

Mr. Mincher testified that before the six joists here involved were erected he had cautioned the foreman of the bricklayers not to put any loads on them until they were bridged. He stated that after the joists were erected the steel erection foreman made a report to him to the effect that he could not install the bridging because the bricklayers had placed planking on the joists and that he had told him that he would make arrangements to have it removed; that the accident occurred before he got over there to make the arrangements.

Plaintiff attempted to state a claim for relief against each defendant by alleging that the provisions of Section 292.090 were applicable in the situation heretofore described. It reads as follows: “All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or near by.” The last sentence of said section appears to be a statement of the existing common law duty. As will hereinafter appear, we agree with the ruling of the trial court that the other provisions of the section are not here applicable in view of the factual situation heretofore outlined.

The first point briefed is that the trial court erred in entering a summary judgment in favor of defendant Deal. The theory upon which that judgment was entered was that plaintiff and his employer were subject to the provisions of the Missouri Workmen’s Compensation Law, § 287.010 et seq.; that defendant Deal was plaintiff’s statutory employer by reason of § 287.040, and that plaintiff was therefore precluded from maintaining a common law action against Deal under the provisions of § 287.120. We think it is clear that the trial court ruled correctly. That question was squarely decided in the case of Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153, wherein we held that by reason of the aforementioned statutes the subcontractor’s injured employee could not maintain a common law action for damages against the general contractor. Plaintiff says that Bun-ner is not sound and suggests that it should be overruled. We have re-examined the Bunner case and have concluded that it is sound and that it should continue to be followed in this state.

Plaintiff also contends that this case presents an exception to the rule in the Bun-ner case because of the alleged violation of the so-called Scaffold Act, § 292.090. We do not agree. Even if we should assume that said act were applicable, it would not change our ruling. This would still be an action for damages for plaintiff’s personal injuries, which, as heretofore stated, is barred by reason of § 287.120. We accordingly rule that the judgment in favor of defendant Deal should be affirmed.

Next, plaintiff contends that the court erred in giving Instruction No. 4 at the request of defendant. It reads as follows: “The court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence defendant’s employees set or placed approximately six bar joists by use of a crane, and before bridging or supporting said joists went to another location on the building site to use the same crane in placing one or more beams; and if you further find that after placing said beam or beams defendant’s employees returned within a reasonable time for the purpose of bridging said bar joists; and if you further find that in making such use of the crane and in leaving said bar joists to be bridged after the use of the crane was completed defendant’s employees followed a custom, usage and practice in the construction industry, and that in so doing they were not negligent; and if you further find that plaintiff knew that it was not safe to put boards across said joists and work thereon before the joists were bridged or supported, then your verdict should be against plaintiff and in favor of the defendant.”

It is necessary to consider that instruction in connection with plaintiff’s verdict-directing Instruction No. 3. That instruction hypothesized that defendant installed the joists and failed to bridge them “in accordance with the plans, specifications and custom of the business”; that plaintiff, in accordance with the practice of his trade, placed boards and building materials thereon and that defendant knew or reasonably could have foreseen the presence of plaintiff and said materials on said boards; “that plaintiff, at the times of so placing said boards and of placing said materials on said boards, had no knowledge that said joists would not support such materials, together with plaintiff thereon or that it was unsafe and was not warned of any danger of said joists collapsing by defendant, his agents, servants, or employees; * *

Instruction No. 4 is unusual in that it hypothesizes conjunctively two somewhat unrelated factual situations. We have concluded that it is prejudicially erroneous because neither hypothesis is sufficient to warrant a verdict for defendant. In regard to the portion relating to a custom in the industry, we think the applicable rule is that “usual practices, usage or customs may, in a given case, be shown as evidence of due care, although they are not the standards of due care, neither do they conclusively demonstrate due care. Specifically, it may be said that the exercise of due care requires precautions which a reasonably prudent employer would have taken in given circumstances, even though other employers may not have taken such commensurate precautions. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not. Grosvener v. New York Cent. R. Co., 343 Mo. 611, 123 S.W.2d 173; Cleghorn v. Terminal R. Ass’n of St. Louis, Mo.Sup., 289 S.W.2d 13; Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905. But, as stated, usual practices, usage or customs may, in given cases, be shown as evidence of due care.” Gatzke v. Terminal Railroad Ass’n of St. Louis, Mo.Sup., 321 S.W.2d 462, 466.

We need not rule whether or not the submission conforms with that rule. The real vice of that part of the instruction is that it does not hypothesize facts constituting a defense to plaintiff’s submission. It was conceded by defendant that it was dangerous for anyone to work on unbridged joists. The essential theory of plaintiff’s submission was that defendant knew, or in the exercise of ordinary care should have known, that plaintiff was working on unbridged joists and failed to warn him of the danger. That submission was supported by the evidence. In the light of plaintiff’s theory of the case it is immaterial that defendant followed a custom of the industry in delaying the bridging of the joists for a time after they were set. The reason for the delay is of no consequence if, as the jury could have found, defendant knew plaintiff was working on those admittedly dangerous joists and failed to warn him of the danger.

If the remaining portion of the instruction had required a finding that plaintiff knew that it was not safe to work on those joists such would have been sufficient to justify a verdict for defendant because, in that situation, there would have been no necessity of warning him. However, we do not think it required that finding. The finding required was “that plaintiff knew that it was not safe to put boards across said joists and work thereon before the joists were bridged.” That part of the instruction actually submitted a fact which plaintiff had admitted. Note the following from his testimony: “A. Well, I didn’t notice it wasn’t braced. Q. Well, would it have made any difference if you had noticed it? A. Oh, yes, sir. Q. In what way would that have made a difference? A. Oh, I wouldn’t — I mean if I’d have noticed it I wouldn’t have gone up there.” It is clear that plaintiff knew it was not safe to work on unbridged joists but he denied knowing that the joists in question had not been bridged. If the submission under consideration had simply required a finding that plaintiff knew that it was not safe to work on those joists it would have been sufficient. But, as it was actually phrased, it merely required a finding that plaintiff knew it was not safe to work on unbridged joists.

We have noticed that plaintiff’s Instruction No. 3 is erroneous in failing to require a finding of negligence on the part of defendant. We suggest that before another trial plaintiff’s counsel should reexamine said instruction for possible errors and make such corrections as may appear advisable.

Plaintiff contends that the court erred in refusing certain instructions offered by him which were based upon § 292.090, the so-called Scaffolding Act. Since questions relating to that act will likely recur upon another trial we will discuss it briefly. It is our view that § 292.-090 has no application in this case. This for the reason that defendant was not engaged in constructing a scaffold to be used in the erection of the building. Defendant, in erecting the steel joists, was constructing an integral part of the building, i. e., a portion of the roof thereof. The fact that the bricklaying crew may have seen fit to use the joists to support boards upon which to work could not reasonably warrant the conclusion that defendant had constructed a scaffold within the meaning of § 292.090.

Other points briefed by plaintiff relate to alleged trial errors which will not likely

recur upon another trial and hence we will not extend this opinion by a discussion thereof.

The judgment in favor of defendant Deal is affirmed. The judgment in favor of defendant Kroeger is reversed and the cause is remanded for a new trial as to plaintiff’s claim against him.

All concur except HENLEY, J., not sitting.

      . All statutory references are to RSMo 1959, V.A.M.S.


author: HOUSER, Commissioner.

text:
    David M. BEVINS, Appellant, v. Jasper C. HARRIS and Marian Jean Harris, Respondents.
    No. 50180.
    Supremo Court of Missouri, Division No. 1.
    June 8, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 13, 1964.
    As Modified on Court’s Own Motion Aug. 18, 1964.

      Robert F. Sevier, Wiliam E. Turnage, Sevier & Turnage, Liberty, for appellant.
    John W. Newhart, L. Glen Zahnd, Savannah, William B. Waters, Liberty, for respondents, Hale, Coleberd, Kincaid & Waters, Liberty, of counsel.
   HOUSER, Commissioner.

Suit in equity by David M. Bevins to set aside a warranty deed to a farm, to void a written contract and to require defendants to reconvey the farm to plaintiff. The defendants, Jasper C. and Marian Jean Harris, husband and wife, are the named grantees in the deed and parties of the second part in the contract. The real estate conveyed is an unencumbered 346-acre farm in Clay County. Estimates of its value ranged from $95,000 to $120,000. The trial chancellor upheld the validity and enforceability of the warranty deed and contract; found that the defendants had performed the contract to the extent that they were permitted to do so by plaintiff but that plaintiff had rendered it impossible for defendants to perform certain obligations under the contract; ruled that nevertheless plaintiff was entitled to recover a sum of money monthly for the remainder of his life equal to the reasonable value of the services defendants agreed to render plaintiff under one paragraph of the contract, and ordered that after' this judgment became final a further trial be granted to determine the reasonable monthly value of these services. Plaintiff has appealed from the judgment.

The petition alleged that defendants set upon a deliberate plan and scheme to obtain plaintiff’s real and personal property by fraud, deceit and undue influence, without any adequate consideration therefor, and that, imposing on defendant’s physical and mental weakness and infirmities of old age, and by fawning over him and using endearing terms defendants induced him to sign a deed to his farm at a time when he did not have his eyeglasses, representing that the instruments expressed an agreement with reference to a partnership operation of the farm and livestock; that the contract was the purported consideration for the deed hut that the contract is void for lack of mutuality, and void for the further reason that it makes a testamentary disposition of property without complying with the statutes of wills; and further, that defendants breached the contract by failing to perform.

Defendants’ original answer was a general denial, except that the execution of the deed and contract was admitted, and except for an allegation that defendants’ failure to live in the house with plaintiff and comply with their obligations under the contract was not their fault but his, in that plaintiff physically choked, assaulted defendant Marian Jean Harris and threatened to kill her, thereby causing her harm and fear for her life. At the close of the evidence defendants amended their answer to allege estoppel and that the conveyance was a gift.

Appellant makes three points.

Appellant’s first point is that the court erred in not setting aside the deed because the evidence showed that he executed the deed without consideration and without intent to convey any interest in his farm to respondents, and that respondents have refused to deed the farm back to appellant on his request. On our independent review we find the evidence overwhelming that appellant intended to convey the title to his farm to respondents, reserving a life estate in himself.

Appellant, who had owned and farmed the land for 52 years, was 74 years old when his wife died on September 15, 1961. Although he was undergoing treatment for hardening of the arteries and heart trouble, appellant was active enough to take care of the livestock and operate his farm from the date of his wife’s death until November, 1961, except for some help with the tobacco crop. Appellant had no children. His closest relatives were first cousins. Respondent Jean Harris, age 2 was a grandniece of his deceased wife. She and her parents had stayed at the home of the Bevins one winter during Jean’s infancy. While the relationship between appellant and Jean had not been close, he had known her since childhood and he had known her husband, Jasper, since her marriage in 1953. Appellant often conferred with Jean’s mother, Floy Holman. He named Mrs. Holman executrix of his will. Jasper was 27 years of age at the time in question. In a conversation with Jasper in 1958 or 1959 appellant learned that Jasper had been raised on a farm and that he would like to get back on a farm. At that time appellant suggested to Jasper that he “come on out and farm” with appellant on a partnership basis, but nothing came of this suggestion. In mid-October, 1961, following the death of appellant’s wife, appellant invited respondents to his farm and told them that he had been thinking of deeding the farm to them; that he wanted to give it to someone who would appreciate it; that he did not want to sell it because of fear that taxes would “get the biggest part of it” and did not want the heirs to be fighting over it. He suggested a partnership operation of the farm, he furnishing the livestock, machinery and feed on hand, and that the cost of all feed purchased be equally divided. Appellant had talked to Robert Frost, a lawyer, about the matter and indicated that a contract would be drawn. Jasper, then employed as a mechanic at TWA, was making $400 a month. Respondents wanted to think it over. About the same time, in mid-October, appellant had a conversation with Jean’s mother in which he asked “whether the kids would be interested or not”; stated that he would “deed the farm over to Jean and Jasper for his lifetime and they were to stay there and take care of the farm and keep house for him,” and indicated willingness to help respondents with respect to their financial needs. On October 27, 1961 Jasper was furloughed at TWA and it was not then known when or if he would be recalled to work. A furlough is a termination of employment without loss of seniority rights. Previously, in August, 1961, appellant had told Jean’s mother that he wanted Jean and Jasper to come down on the farm and live with him; that he wanted to have a contract, and would deed the land reserving a life estate. Appellant told Jean’s mother that he had been thinking about it for three or four years. She expressed doubt that appellant, an older man, could get along with the three .young children of the respondents, to which appellant retorted that she did not know what she was talking about. Jasper wanted the advice of his parents and at appellant’s invitation they looked at the farm and talked to appellant, who told them that he did not want “to talk the kids into something that they would be sorry of”; that for him to give them the farm “the kids” would have to come there and take care of him and make a home for him the rest of his life.

On the evening of October 31, 1961 Jasper, Jean, Jean’s father, appellant and the lawyer, Robert Frost, met at the latter’s office, to discuss the matter. The arrangements for this meeting were made by Mr. Frost, at the instance of appellant. Mr. Frost was employed and paid by appellant. The latter two did most of the talking. Appellant outlined the terms of the agreement, by which he was to deed the farm to Jasper and Jean, reserving a life estate to himself, and there would be a partnership under which appellant was to furnish the cattle and machinery and Jasper was to furnish the labor, the increase of the cattle to be split 50-50, with the parties sharing 50-50 the cost of any feed purchased. The young people were to move into the house as soon as possible, assist with the chores and work to be done, and care for appellant the rest of his life. Mr. Frost made written notes. Jasper said little and stated none of the terms of the agreement. Later, after Mr. Frost had the agreement typed, copies were given to the parties,, and Jasper, Jean and appellant sat down together and read the contract in detail. Jasper pointed out to appellant that the-paragraph which gave respondents, but not. appellant, the right to terminate the contract was unfair (to appellant). Appellant was satisfied. This provision was his idea and he said he could see no reason why he would “want out”; that he had every reason for living up to the contract.

The next meeting was held at Mr. Frost’s-office on November 6, 1961. Jasper drove appellant to the meeting, going by way of the bank at appellant’s request to get a description of the farm, which was given-to the lawyer for insertion in the deed. The-deed and contract were presented to appellant who signed both of them without objection or question and with full knowledge of their contents. They were executed by the parties as one transaction. No money was paid to appellant upon execution of the-documents.

The warranty deed was a regular printed form, except for the provision reserving to grantor a life estate in the lands conveyed. It did not contain any reference-to the written contract or to the obligation-of the grantees to provide a home for appellant for the rest of his life. It recited' a consideration of “One Dollar and other-valuable considerations.” The notary taking the acknowledgment was Robert Frost, the lawyer. Jasper filed the deed for record1 the day after it was executed.

The contract recited that appellant had that day deeded his farm to the respondents, reserving to himself a life estate, and that the parties had agreed on a joint operation of the farm lands. By the terms of the contract appellant agreed to furnish 71 cows and 3 bulls, all hay and other feed then on hand, and farm machinery and to pay for all oil, grease, repairs and upkeep of the machinery, make all repairs on the home and buildings, pay all taxes and insurance, and to make necessary financial arrangements to provide respondents with funds sufficient to maintain the home and farm until such time as there would be income from the farm. Respondents agreed to move into the house, make it their permanent home, operate the farm and furnish all labor necessary for the farm operation, maintain fences, mow all pastures and fence rows in proper season, make minor repairs on farm buildings. The parties agreed to split the increase from the cows, and sows and hogs, and to split the feed bills evenly. They agreed on the title to the livestock which, unencumbered, was worth $18,000. In case of the death of appellant the machinery and livestock were to become the property of respondents and not become a part of appellant’s estate.

Paragraph 16 provided that the parties of the second part “shall make a home for party of the first part so long as he lives and shall furnish meals for first party, do his laundry and keep his home clean and neat.”

Paragraph 17 read as follows: “It is further agreed that if, for any reason, said parties of the second part should decide to terminate this working agreement, then and in that case, each party hereto would take one half of the increase and first party should retain his original livestock and machinery.”

Within a few days after the documents were executed respondents moved out of their own house and moved to the farm, placed their children in the new school, and commenced to operate under the contract.

The only evidence in support of appellant’s contention that he did not intend to> convey an interest in the land was his own uncorroborated testimony that he did not know for several months that he had signed a deed to the farm; that there had been no discussion of deeding his property to. respondents; that the discussion related to a 50-50 partnership agreement, but there was no agreement on his part that upon his death all of the machinery, livestock, hogs, and feed on hand would belong to the defendants; that he would not have signed the contract if he. had known that he had deeded the farm to respondents; that he did not have his glasses with him on the day the papers were signed; that before signing he asked respondents if what was. presented to him for signature was the 50-50 partnership contract they had discussed and they said “yes”; that he signed the papers on this assurance and in the belief that he was entering into a partnership for the operation of the farm and nothing else. This version of the facts, was diametrically opposed to the testimony of Jasper, Jean, Mr. and Mrs. Holman, the senior Harrises, and, significantly, of appellant’s own lawyer, a highly respected' attorney. Mr. Frost testified positively that the whole situation, deed, contract and all, was discussed with appellant. The substance of the attorney’s testimony was that appellant knew that he was deeding his-farm to respondents; that the contract and deed were the thinking of appellant; that not a word was contributed to the contract by respondents; that the only contents of the agreement suggested by the lawyer was the inclusion of paragraph 16 as a matter of fairness; that it was suggested to appellant that under paragraph 17 respondents could “walk off” and still have a deed to the place; that he had advised appellant that he was being very generous with these young people, and that appellant answered that that was what he wanted to do — to give them the farm. On this-sharply contradictory testimony we adopt the following finding of fact made by the trial chancellor, who had a superior vantage point from which to judge the credibility of the witnesses and to evaluate their testimony : “8. Plaintiff was fully aware of the nature and contents of said contract and deed, and that he executed the same freely and without fraud, deceit, duress or undue influence on the part of defendants or any other person or persons and that it was the intent and desire of plaintiff to deed the above described real estate to defendants, reserving a life estate to himself.”

Since the evidence overwhelmingly demonstrates that plaintiff intended to convey the farm to defendants, reserving to himself only a life estate, the principles announced in the cases of Cook v. Branine, 341 Mo. 273, 107 S.W.2d 28, Mentzer v. Mentzer et ux., 325 Mo. 941, 30 S.W.2d 146, and Colquitt v. Lowe, Mo.Sup., 184 S.W.2d 420, that where a deed is made without consideration and without intention of transferring the property or of conveying title to the grantee title does not pass and equity will intervene and cancel the deed on refusal of the grantee to return the property to the grantor upon his demand, are inapplicable. In Mentzer and Colquitt the deeds were induced by misrepresentation and undue influence, respectively, elements wholly absent in this case. There is no credible evidence to substantiate appellant’s allegations that respondents planned and schemed to obtain his property by fraud, deceit, undue influence, or by imposition on his alleged physical or mental weakness. The moving party in this entire transaction was appellant. He had thought about it for years. He had proposed a joint farming partnership in 1958 or 1959, without succeeding in interesting Jasper. Again in 1961, after his wife’s death, appellant took the initiative, this time combining the suggestion of deeding the property with the previous proposal of a farming partnership. Again appellant experienced difficulty in persuading respondents to accept his proposal. He sought to “sell” their parents on the idea. It was not respondents’ idea. This is not the case of a covetous young couple fawning over, persuading and influencing a reluctant, elderly man and by their blandishments inducing him to convey to them an interest in his property. The shoe is on the other foot. Any reluctance in this case was that of the respondents. They wanted time to think it over. Jasper wanted to be sure it was a permanent arrangement before he gave up his seniority rights and employment at TWA. Nor did appellant have any misapprehension as to the terms of the contract placed before him for his signature. Not only his attorney but also Jasper himself advised appellant with reference to the generosity and unfairness of certain provisions appellant had suggested. Appellant rejected their advice, apparently determined to include in the document the terms and conditions he had dictated. Appellant got the kind of an agreement he wanted. We conclude that with full knowledge of what he was doing and in full possession of his faculties appellant intended to convey a remainder interest in the farm; that he was thoroughly familiar with the fact that he was so doing; that he fully understood the provisions of the written agreement and was anxious to have the deed and the agreement executed as prepared.

Appellant’s second point is that the- court erred in not setting aside the deed because the evidence showed that respondents failed to perform their agreement to make repairs and to keep the home neat and clean for appellant. Citing Hood v. Throop, Mo.Sup., 280 S.W.2d 106, Wagner v. Hicken, Mo.Sup., 232 S.W.2d 531 and Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103, appellant takes the position that respondents failed to perform their contractual obligations with respect to the operation of the farm and the care of appellant and of the house, and that such failure of performance-entitles him to a cancellation of the deed. The evidence pro and con on this issue occupies many pages of this 682-page transcript, but we need not state the evidence or weigh it on this point, because of a misapprehension under which appellant is laboring. Under the facts of this case the failure of respondents to perform their contract obligations, even if established by sufficient competent evidence, would not entitle appellant to a cancellation of the deed. Where a deed is executed in consideration of the promise of the grantee to support the grantor, etc., without any clause looking to a forfeiture, or re-entry or re-verter for nonperformance, and there is no showing that the grantees practiced a fraud upon the grantor or took unfair advantage of him, there is no basis for a decree of cancellation. The estate conveyed vests in the grantee, does not await performance of the promise and may not be divested by nonperformance. Where the parties make the promise itself the consideration for the conveyance, the grantor’s remedy is a suit for breach of the agreement. A leading case is Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726, where the court said, bottom of page 727, et seq.: “The promise of even an insolvent man to render a valuable service is a sufficient consideration to support a deed, and, if the deed is given in consideration of the promise, the estate conveyed vests in the grantee. The title is not held in abeyance until the performance of the promise, nor devested for a nonperformance. It was competent for the parties, if they had seen fit to so agree, to make the performance of the promise a condition precedent to the vesting of the estate, or its nonperformance a condition subsequent for which the estate might be devested; but, when they choose to make the promise itself the consideration, the grantor’s only remedy is a suit for a breach of the covenant. Whether, in case the grantee break his covenant, and is insolvent, yet still holds the property conveyed in the deed, a court of equity could subject it to payment of the damages awarded, need not be answered here. It is sufficient now to say that for that reason the court cannot rescind the contract or cancel the deed. Studdard v. Wells, 120 Mo. 25, 25 S.W. 201; Taylor v. Crockett, 123 Mo. 300, 27 S.W. 620; Brown v. Fickle, 135 Mo. 405, 37 S.W. 107. There is no charge in this petition of fraud or unfair advantage taken by defendant, and there is no clause in the deed looking to a forfeiture, a re-entry, or reverter. There is nothing in the petition upon which a decree for the cancellation of the deed can be founded.” In Alward v. Boatwright, Mo.Sup., 193 S.W. 568, 1. c. 570, this Court said: “The petition, and plaintiff’s cause of action, are bottomed solely upon the erroneous idea that if defendant failed to comply with the requirements of said deed, in respect to the things which he was obligated to do for the benefit of plaintiff, the latter would be entitled in a court of equity to a decree setting aside and canceling the deed, although it contains no provision declaring a forfeiture, or reverter in case appellant failed to comply with his contract. There is no provision therein declaring the deed void, or providing for a re-entry in case defendant should fail to perform his part of the agreement. The deed contains no condition subsequent, and hence the petition based thereon does not allege any facts which would warrant a court of equity in setting aside and canceling the same, even if defendant failed to comply with the agreement specified in the deed. The conclusion is irresistible that on the facts presented in the record the petition fails to state a good cause of action. * * * [citing eleven cases]. Tested by the rules of jurisprudence laid down and followed in the above and many other cases in this state, we are compelled to hold that plaintiff’s petition fails to state any facts which would warrant us in setting aside or canceling said deed.” See also Key v. Kilburn, Mo.Sup., 228 S.W.2d 731, 737, 738 [12]; Kohnke v. Kohnke, (en banc) Mo.Sup., 250 S.W. 53, 56 [1]; Allison v. Cemetery Caretaking Co., 283 Mo. 424, 223 S.W. 41. The Hood, Wagner and Finley cases, supra, are distinguishable on the facts. In them the evidence supported a finding that the grantees never intended to perform and justified a holding that a fraud had been perpetrated on the grantors. See Allan v. Allan, Mo.Sup., 364 S.W.2d 578, 582. While the performance of respondents in the case on review did not satisfy appellant, respondents in good faith made a sincere effort to comply with their contractual obligations, and substantially performed, except insofar as their performance was interfered with by appellant as we have seen, there was no evidence of fraud on the part of the respondents, and for this Court to draw such an inference would be contrary to the ■evidence and wholly unjust.

Appellant’s third point is that the court erred in not setting aside the deed because the evidence showed that the contract was given as the sole consideration for the deed, and that the contract was void for lack of mutuality. The basis of this contention is the provision of paragraph 17 of the contract for the division of the increase of the livestock and the retention by appellant of the original livestock and machinery “if, for any reason, said parties of the second part should decide to terminate this working agreement.” Appellant contends that paragraph 17 gave Jasper and Jean an unconditional right to terminate the entire contract at any time — an option to terminate not only the agreement with reference to the partnership operation but also the obligation to provide a home, meals, laundry, etc.; that an absolute and unconditional option on the part of one party to a contract to cancel, with no independent consideration therefor other than the promise of the party holding the option, invalidates the entire contract because of lack of mutuality of obligation. Appellant cites Hudson v. Browning, 264 Mo. 58, 174 S.W. 393; Middleton v. Holecroft, Mo.App., 270 S.W.2d 90; Naify v. Pacific Indemnity Co., 11 Cal.2d 5, 76 P.2d 663, 115 A.L.R. 476; Anno.-Reserved Right to Cancel Contract, 137 A.L.R. 919; 17 C.J.S. Contracts § 100(1), p. 790, § 100 (6). Respondents propose three answers to this contention: (1) that the termination referred to in paragraph 17 relates only to the partnership operation of the farm, and not to paragraph 16; (2) that there was partial performance, which furnishes a consideration independent of the promise; (3) that respondents, having changed their position, may rely upon the doctrine of promissory estoppel. In our judgment appellant’s third point is answered by the proper construction of paragraph 17.

Paragraph 17 did not give Jasper and Jean an unconditional right or option to terminate the arrangement provided for in paragraph 16. Paragraph 17 referred only to the provisions of the “working agreement,” which we construe to mean the partnership operation. No fixed term was agreed upon for the duration of the partnership and under the law the respondents could dissolve it at any time upon notice, without the consent of appellant. Schneider v. Newmark, 359 Mo. 955, 224 S.W.2d 968; 68 C.J.S. Partnership § 332 a., p. 843. Paragraph 17 provides an agreement for two consequences of a dissolution of the pai-tnership, but is silent as to the consequences of a cessation of performance by respondents of their duties under paragraph 16. Paragraph 16 imposed upon respondents a continuing obligation for the life of appellant, an obligation not susceptible of termination at will by them. The promises made by respondents in paragraph 16 make the obligations of the parties mutual and binding and provide an adequate consideration for the deed.

At this point we need to briefly state further facts. Except for his opinion that Jasper should have given more attention to the calving of the cows appellant had no complaint as to the manner in which Jasper and Jean performed their duties under the contract from November 16, 1961 to March, 1962, when appellant went to Phoenix, Arizona for a 3-weeks visit. TWA sent Jasper several recall notices in December, 1961 and January, 1962, to which he did not respond. Appellant did not want Jasper to return to work for TWA. In February, 1962 Jasper received a final termination notice that his name was being removed from the seniority list, as a result of which he lost seniority rights accumulated since his first employment with TWA in 1953. When appellant returned from Arizona he indicated that he had been greatly attracted to that country, had bought a house there, and intended to shortly return to Arizona to live. Not long after his return from Arizona appellant’s attitude changed. He began to find fault with Jasper. At his own expense Jasper, in appellant’s absence, had installed a cattle guard in place of a gate. Appellant was critical, observing that he could never afford a cattle guard; that for fifty years his wife had opened that gate for him and he did not see why Jasper could not open the gate. The relationship changed from that of partners to that of employer and employee, and he began to issue orders to Jasper with reference to things that should be done. On a Saturday in June, at a time when Jasper was busy- putting up hay, appellant decided that it was time to plow a ten acre field of corn. Jasper told appellant that he was putting up hay and if he would wait until Monday he would plow the field. Without further discussion appellant hired a farmer in the vicinity to plow the 10 acres and later hired him to do a second plowing, without consulting Jasper. Relations became more strained. Appellant constantly suggested things for Jasper to do, notwithstanding Jasper kept himself busy, trying to keep the farm up, taking care of the livestock, baling 6,000 bales of hay during the summer, and making reasonable efforts to comply with his contract. Appellant had signed Jasper’s note for $9,000 to give him operating capital. In June, 1961 Jasper, needing more financing, approached appellant, who refused to go on any more notes unless Jasper “released” the deed to him. Jasper refused this request, stating that he “wouldn’t have any security at the farm.” In July, 1962 appellant filed this suit. The parties continued to stay on the farm and respondents continued to make a home for appellant and provide plaintiff with meals, until September 8, 1962. On that day Jasper was gone from the farm, attending a religious retreat. Respondents, religious people, occasionally would be gone from the farm for hours at a time attending various religious affairs. This displeased appellant, who was not a religionist, and on September 8 he was angered by Jasper’s absence from the farm. He grabbed Jean by the arm, pushed her into the door, stated that he knew what the Harrises were trying to do to him, and complained about Jasper’s not staying home. She told him to let go, that she was not afraid of him, and had started to prepare supper when he got hold of her neck, turned her around, got right up next to her face and said, “I could kill you right now, you know that, don’t you?” After he let go he told her not to leave and not to tell anyone what he had done, threatening several times to kill her — shoot her. — if she told anyone. She knew he had a shotgun, a rifle and a pistol at the house which he kept loaded at his bedside. She agreed with him, tried not to “row him anymore than he already was,” and prevailed upon him to sit down and eat. Then Jean collected her children and left the farm, going to her parents’ home. As a result of this experience she had a nervous breakdown, hysteria, weeping spells, lost weight and for several weeks, unable to work, she was under the care of a physician. Because of this occurrence Jean did not return to the farm because of fear of bodily harm. Jasper nevertheless continued to work on the farm, feed the livestock, care for the animals and perform his other contractual duties until the partnership was terminated by agreement of the parties early in 1963.

Recapitulating, respondents, one of whom performed for 10 months and the other of whom performed for 14 months under the contract, now find themselves the owners of a remainder interest in a valuable farm, and appellant, whose lifework was the building up of this farm and clearing it of debt, finds himself old, physically incapable of operating the farm, a widower, and in need of a home and a housekeeper. Respondents are obligated by contract to provide him with a home, meals, laundry services and to keep the place neat and clean, but because of appellant’s misconduct, appellant’s dissatisfaction with respondents, and the deep-seated friction engendered between them a reconciliation and resumption of the relationship established by the contract seems out of the question. A denial of relief would result in a substantial loss to appellant, and an unconscionable enrichment of respondents by which, without the necessity of rendering any further service under their contract, they would retain a remainder interest in a farm worth approximately $100,000. Appellant’s assault and threats constituted an unfortunate mistake and a wrong doing on his part, but that isolated incident is not enough to deny appellant all relief. Notwithstanding the parties can no longer live together in the “home” relationship contemplated in the contract and the impossibility as a practical matter of executing the contract in the manner originally intended, we are of the opinion that in view of his age and the circumstances, appellant is entitled to “such relief as in equity and good conscience will secure compensation to the plaintiff for such loss as will result to him.” Priebe v. Sette, 197 Minn. 453, 267 N.W. 376, 378, and cases cited. Relief similar to that afforded in Priebe v. Sette, supra, seems appropriate. We are unable to devise any more suitable substitute for the personal services of respondents than that prescribed by the trial chancellor, namely, the requirement that respondents pay appellant the reasonable monthly value of the services reserved in paragraph 16 of the contract for the benefit of appellant for life, beginning September 8, 1962. as modified by the further requirement that as security for the payment of the amount to be fixed the same shall be adjudged a first and superior lien upon the remainder interests of respondents in the land; or any other modification of the original judgment which may be required in equity and good conscience in the light of subsequent developments. In fixing the amount to be paid by respondents to appellant each month due consideration shall be giren to whatever losses the evidence may show respondents have suffered, such as the obvious loss of the cost of housing respondents and their children, and credits and offsets shall be allowed respondents therefor.

Accordingly, the judgment of April 25, 1963 is affirmed as modified by the preceding paragraph of this opinion, and the cause is remanded for a further trial to determine the reasonable monthly value of the services, less any credits and offsets deemed proper, in accordance with this opinion and the order of the trial court, and for the entry of final judgment.

COIL and WELBORN, CC., concur.

PER CURIAM.

■ The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur except HENLEY, J., not sitting.