author: STONE, Judge.

text:
    OZARK COUNTY SCHOOL DISTRICT R-V OF OZARK COUNTY, Missouri, Plaintiff-Respondent, v. M. E. LAY et al., Defendants, Gainesville Ball Club, Inc., Intervener-Appellant.
    No. 8025.
    Springfield Court of Appeals. Missouri.
    June 4, 1962.

      Robert E. Hogan, West Plains, Paul Boone, Gainesville, for intervener.
    Clyde Rogers, Gainesville, for plaintiff.
   STONE, Judge.

This is an appeal by Gainesville Ball Club, Incorporated (hereinafter referred to as the corporation), from an order entered in the Circuit Court of Ozark County on June 15, 1961, denying the corporation’s motion to intervene as a party defendant in an action theretofore instituted in said circuit court on March 29, 1961, by Ozark County School District R-V of Ozark County, Missouri (hereinafter referred to as the school district), to condemn a described tract (hereinafter referred to as the tract) as a site for a school building and playground.

Among the defendants in the condemnation proceeding were (a) M. E. Lay and Leona Lay, the record owners of the tract when the condemnation proceeding was instituted, (b) Gainesville Ball Club described in the school district’s petition as “an organization the exact nature of which is unknown,” characterized in the corporation’s tendered answer as “an unincorporated organization” or “an unincorporated association,” and by us hereinafter referred to as the association, and (c) O. V. Robbins and O. S. McClendon (hereinafter sometimes referred to as the trustees), as trustees of the association. The school district’s petition alleged that, for about twenty years, the association had been in actual possession of the tract, had controlled its use, had charged admission for entry thereto, and had rented it to other individuals and organizations; and, in paragraph XIII of its tendered answer, the corporation substantially admitted these allegations in the petition and then elaborated thereupon by averring that “during all such period of time” the association had “maintained, operated and controlled a baseball club, conducted baseball games, athletic sports, exhibitions and a place of amusement and recreation for the general public.” By the tendered answer of the corporation, we are informed also that, on April 3, 1961 (five days after institution of this proceeding), M. E. Lay and Leona Lay executed and delivered to O. V. Robbins and O. S. McClendon, as trustees of the association, a quitclaim deed to the tract (promptly placed of record) which recited that it was “in lieu of a former deed executed by said grantors about May 27, 1941,” and that “the former deed has been misplaced.” Hence, it is clear that the trustees of the association actually owned the tract when this proceeding was initiated, and that they also became invested with the record title thereto prior to April 17, 1961, the date on which the corporation “was duly incorporated

On April 27, 1961, the corporation filed its petition for writ of prohibition in the Supreme Court of Missouri [State ex rel. Gainesville Ball Club, Inc. v. Hon. Joe C. Crain, Judge, Docket No. 48844]; and, when cast in that proceeding by denial of its petition on May 8, 1961, the corporation on the same date purported to file an answer in the condemnation proceeding in the circuit court. No motion to intervene having been served, heard or ruled at that time, obviously the corporation could not have lifted itself into the condemnation proceeding or have attained the status of an intervening party therein by the simple expedient of depositing an unauthorized answer in the clerk’s office. Rule 52.11(c) (1); Sec. 507.090, subd. 3(1). See Cowan v. Tipton, D.C.Tenn., 1 F.R.D. 694, dealing with identical procedural provisions in Rule 24(c) of the Federal Rules of Civil Procedure. So recognizing, counsel thereafter filed on May 15, 1961, the corporation’s motion to intervene; and, although the motion contained no specific request that this be done, apparently the trial court treated the answer theretofore deposited in the clerk’s office as being the “pleading setting forth the * * * defense for which intervention (was) sought” [Rule 52.11(c) (1)], which should have accompanied the motion to intervene. Liberally ■construing the above-cited rule to the end that there may be a just determination of the issue sought to be presented, we similarly regard the deposited answer as having been tendered with the motion to intervene. Rule 41.03.

The corporation concedes that, when the condemnation proceeding was instituted on March 29, 1961, the school district named and joined all proper parties defendant. Millhouse v. Drainage Dist. No. 48 of Dunklin County, Mo.App., 304 S.W.2d 54, 58(6). Indeed, the corporation then could not have been made a party defendant, for the state did not breathe life into it until a certificate of incorporation was issued on April 17, 1961. But the corporation’s theory has been and is, as stated in paragraph 1 of its motion to intervene, that it became “the successor to Gaines-ville Ball Club (the association) * * * by virtue of certificate of incorporation” issued under “The General Not for Profit Corporation Law” [Chapter 355] and, as stated in paragraph V of its tendered answer, that “this defendant (the corporation) is the beneficiary of the trust created by the execution and delivery of the quitclaim deed aforesaid (from the Lays to the trustees on April 3, 1961) * * * and has become the owner in fee simple of said real estate upon coming into legal existence as a corporation as successor to the unincorporated organization referred to as the Gainesville Ball Club (the association)." Thus asserting ownership and actual possession of the tract, the corporation boldly declares that “it had an absolute right to intervene and be made a party to the action.” Rule 52.11(a); Sec. 507.090, subd. 1.

The school district having moved to dismiss the corporation’s appeal “from the order and judgment” denying intervention, it may be appropriate to observe here that, since intervention was sought as a matter of right, the order was appealable. City of St. Louis v. Silk, 239 Mo.App. 757, 199 S.W.2d 23, 27(1); Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, 844(7), 845(14); Ratermann v. Ratermann Realty & Inv. Co., Mo.App., 341 S.W.2d 280, 286. See also Kozak v. Wells, 8 Cir., 278 F.2d 104, 108(1).

Although the corporation’s brief does not specify which of the three numbered clauses of subdivision (a) of Rule 52.11 [Sec. 507.090, subd. 1] it relies upon, certainly neither clause (1) nor clause (3) could have any application [cf. State ex rel. State Highway Commission of Mo. v. Hudspeth, Mo.App., 303 S.W.2d 703, 705] so, of necessity, the corporation must depend upon clause (2) permitting, upon timely application, intervention as a matter of right “when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.” (Emphasis ours). For intervention as a matter of right under the quoted clause, “it must * * * appear that the petitioning intervener must have (1) an ‘interest’ in the pending action, and (2) that the representation of such interest ‘by existing parties is or may be inadequate,’ and (3) that intervener ‘is or may be bound by a judgment in the action’.” State ex rel. Farmers Mutuals Auto. Ins. Co. v. Weber, 364 Mo. 1159, 1163-1164, 273 S.W. 2d 318, 321(2). In emphasizing the first requirement, the Supreme Court of Missouri, en banc, said in the same case that “before a stranger to the record of a pending cause shall be permitted to intervene in such cause * * * it must appear that the petitioning intervener first of all shall have an ‘interest’ in the pending cause” [364 Mo. loc. cit. 1164, 273 S.W.2d loc. cit. 321] and then proceeded to define “interest” as follows: “ ‘Interest,’ generally, means a concern which is more than mere curiosity, or academic or sentimental desire. One interested in an action is one who is interested in the outcome or result thereof because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment or decree in such action. * * * ‘(I)nterest’ means a direct and immediate claim to, and having its origin in, the demand made or proceeds sought or prayed by one of the parties to the original action * * [364 Mo. loc. cit. 1164, 273 S.W.2d loc. cit. 321(3, 4)] See also Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 102(2), 61 A.L.R.2d 1286.

No evidence having been offered or taken on the corporation’s motion to intervene, the trial court must have determined the issue of intervention “on the face of the pleadings” [State ex rel. State Highway Commission of Mo. v. Hudspeth, supra, 303 S.W.2d loc. cit. 705]; and, in the absence of sham, frivolity or other such objection, we likewise will look to the well-pleaded allegations of the verified motion to intervene and the tendered answer. State ex rel. State Highway Commission of Mo. v. Hudspeth, Mo., 297 S.W.2d 510, 512; State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 336, 208 S.W.2d 257, 261, 2 A.L.R.2d 216. See also Kozak v. Wells, supra, 278 F.2d loc. cit. 109(6-8); Clark v. Sandusky, 7 Cir., 205 F.2d 915, 918 (6, 7); Kaufman v. Wolfson, D.C.N.Y., 137 F.Supp. 479, 481(1); Otis Elevator Co. v. Standard Const. Co., D.C.Minn., 10 F.R.D. 404, 406(4); 2 Barron and Holtzoff, Federal Practice and Procedure, § 603, loc. cit. 406-407. Even so, we can find no well-pleaded “interest” of the corporation in this proceeding to condemn the tract beneficially acquired by the association some twenty years previously.

As we have noted, the tendered answer of the corporation affirmatively showed that the trustees of the association actually owned the tract when this proceeding was instituted, and that they also became invested with the record title thereto prior to April 17, 1961, when the corporation came into being. The wholly unexplained action of “three or more natural persons” [Sec. 355.040], unidentified in the record, in organizing the corporation under the same name did not terminate or destroy the independent and continued existence of the association [Society of Helpers of Holy Souls v. Law, 267 Mo. 667, 680, 186 S.W. 718, 727(6); Catholic Church v. Tobbein, 82 Mo. 418, 424], did not constitute the corporation “the successor” of the associa⅛tion, and did not work a transfer or conveyance to the corporation of title to, or any interest in, the property or assets of the association. Frank v. Drenkhahn, 76 Mo. 508; Catholic Church v. Tobbein, supra, 82 Mo. loc. cit. 425; German Evangelical Protestant Cong., etc. v. Schreiber, Mo., 187 S.W. 845. See also Trustees of McGee Presbytery, etc. v. Unknown Heirs, etc., of Smith, Mo., 232 S.W. 460, 464. And, in the pleaded circumstances of this case, the corporation is not aided by its naked averments of legal conclusions, unsupported by any factual allegations, that it “is the owner” of the tract [Robinson v. Field, 342 Mo. 778, 786, 117 S.W.2d 308, 312(3)] and that it “is the beneficiary of the trust created by the execution and delivery of the quitclaim deed” by the Lays to the trustees of the association on April 3, 1961. Compare Tucker v. Diocese of West Missouri, Mo., 264 S.W. 897, 901-902(5, 6); Wilson v. Polk County, 112 Mo. 126, 138, 20 S.W. 469, 472; Piggott v. Denton, Mo.App., 46 S.W.2d 618, 620 (2, 3).

With no pleading or proof either (1) identifying any members of the association (excepting only the trustees), or (2) identifying any incorporators or members of the corporation, or (3) indicating any common identity of members of the association and members of the corporation, or (4) suggesting any conveyance by the association, either generally of its assets or specifically of the tract, or (5) disclosing any action by or on behalf of the association or its members recognizing that the corporation had any interest in the tract or any right to appear for or on behalf of the association, we are constrained to conclude that the corporation showed no title to, or property right in, the tract [German Evangelical Protestant Cong., etc. v. Schreiber, supra; Catholic Church v. Tobbein, supra; Frank v. Drenkhahn, supra] and thus no interest (within the meaning of that term as employed in Rule 52.11) in the instant condemnation proceeding. Laclede Gas Co. v. Abrahamson, supra. Cases cited by the corporation’s counsel [e. g., City Investing Co. v. Davis, Mo., 334 S.W.2d 63, 68(2)], in which the title or property right of a purchaser of land was involved, are not here relevant or persuasive. The trial court did not err in denying the corporation’s motion to intervene.

Respondent’s motion to dismiss the appeal is overruled and the order denying intervention is affirmed.

RUARK, P. J., and McDOWELL, J., concurs.

      . Except as otherwise stated, all references to rules are to Missouri Rules of Civil Procedure, V.A.M.R., and all references to statutes are to RSMo 1959, V.A.M.S.


source: Caselaw Access Project

author: HUNTER, Presiding Judge.

license: Public Domain

text:
    Mary Ary GORDON, Formerly Mary Ary, Appellant, v. John ARY, Respondent, Chicago, Burlington and Quincy Railroad Company, Garnishee.
    No. 23532.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Koenigsdorf, Kaplan, Kraft, Stoup & Fox, by Chester B. Kaplan, Maurice B. Soltz, Kansas City, for appellant.
    McFadin, Spooner & Kiser, by Richard E. McFadin, North Kansas City, for respondent.
   HUNTER, Presiding Judge.

Mary Ary Gordon, appellant, resorted to garnishment against her former husband, John Ary, respondent, and his employer, Chicago, Burlington and Quincy Railroad, garnishee, to collect $490 in arrearages in child support provided in a divorce decree rendered by the Circuit Court of Jackson County, Missouri, on September 11, 1950.

The divorce decree granted Mary Ary a divorce, custody of the two children of the marriage, Ellen Ary, then age seven years, and John Ary, Jr., then age ten months. The decree further provided and ordered, “that defendant pay to plaintiff as support and maintenance of the said minor children the sum of Eighty ($80.00) Dollars per month, the first payment in the sum of Eighty ($80.00) Dollars to be due and payable on this the 11th day of September 1950, and a like sum of Eighty ($80.00) Dollars to be due and payable on the 11th day of each month thereafter until further order of this Court and that in default of any one payment plaintiff have therefor execution.”

John Ary on May 10, 1961, filed a motion to quash the execution and garnishment, alleging the minor child Ellen Ary had become emancipated as a result of marrying David Gough with her mother’s consent on May 7, 1960, and is at the present time the wife of David Gough.

On May 18, 1961, upon trial without jury, an order was issued quashing the garnishment of Mary Ary Gordon as to any excess over $40.00 per month retroactive to May 7, 1960.

The retroactive order apparently was based on the testimony of John Ary that when his daughter got married on May 7, 1960, he called his former wife and told her he “wasn’t going to send her the $40.-00 for the daughter since she was married, and she seemed to agree with me that I didn’t owe it to her.” From that time on he sent only $40.00 a month.

Mrs. Gordon testified that the daughter was married on May 7, 1960, “but I am supporting her”; that the daughter is living with Mrs. Ary and separated from her husband but not divorced, “because I (Mrs. Gordon) haven’t had the money to do it.” The daughter now eighteen years old comes and goes, occasionally staying with her grandmother or a girl friend. Mrs. Gordon doesn’t know whether or not the daughter’s husband has sent her any money.

Concurrently heard by the court were the separate motions of appellant and respondent to raise and lower the support payment respectively for the future by a modification of the decree. We omit evidence relevant to these motions as the court’s order as it concerned them was not questioned on this appeal.

The trial court’s order sustained the motion to quash the garnishment “as to any amount exceeding the sum of $40 per month, beginning May 7, 1960, and continuing for the period that Ellen remains married and will terminate in the event she becomes single and returns to her mother’s home as a dependent, in which event plaintiff shall receive $50 per month for her support during her minority.

“The defendant’s motion to modify the decree is overruled.

“Plaintiff’s motion to modify the decree is sustained and the plaintiff will be awarded $50 per month child support for John Ary, Jr., beginning July 1, 1961 * *

On this appeal appellant makes several contentions. First, she contends that a judgment for support granted contempo-rarily with a decree of divorce, authorizing a single monthly payment for two children cannot be retroactively apportioned between the children. Second, the order decreeing support for minor children becomes a final judgment when the date for payment is due; that the marriage of a minor child does not in all cases emancipate the child; that appellant’s child was not emancipated, and that the order modifying the garnishment was a retroactive order unlawfully changing a final judgment. Respondent denies the soundness of these contentions.

Looking to appellant’s first contention, we are convinced it is meritorious. This is sound authority to the effect that a divorce decree, such as that before us, which fixes a single monthly sum to be paid for the benefit of two or more children is deemed by the courts to require payment of the entire sum until the youngest living child attains majority, or until the decree is otherwise prospectively modified by a court order. Cooper v. Matheny, 220 Or. 390, 349 P.2d 812; 17A Am.Jur., Divorce & Separation, Cum.Supp. page 8, section 864; Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680; Schrader v. Schrader, 148 Neb. 162, 26 N.W.2d 617; Warren v. Warren, 92 N.J.Eq. 334, 112 A. 729.

The reasons supporting this rule as stated in the cited cases are substantial and, to us, persuasive. A support order is not based solely on the needs of the minor children but also takes into account what the father can afford to pay. Consequently, where the family is in straitened financial circumstances at the time of the divorce, the support order may fix a payment inadequate to meet the needs of two or more minor children, although the same amount might be adequate or about adequate for one child. This being so, no mechanical or pro rata adjustment ought to be presumed to have been intended or contemplated as each child reaches majority or becomes emancipated, and any proposed modification should be addressed to the discretion of the court which as the facts then appear can make such modification, if any, as is appropriate.

Additionally, a single sum support payment should not be construed as intended to be impliedly pro-rated equally among its beneficiaries for the reason that requirements of the individual child vary widely depending on the age, sex, health, and other circumstances. Nor should the father be allowed to decide on either a personal or mathematical basis how much the single sum support amount established in the decree is to be cut down when one of several minor children becomes emancipated. Such modification, if one is called for, should be made by the appropriate court after a hearing in which all relevant facts as of the time of the requested modification can be considered, and the modification being based on the then appearing facts should not be retroactive.

It is the general rule that the authority to modify or amend a judgment awarding child support must be found in the statutes or it is presumed not to exist. Our statute governing support decrees in Missouri, Section 452.070 RSMo 1959, V.A. M.S. provides, “The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper * * Nowhere in this statute is there authority for allowing a modification by a retroactive apportionment of the nature before us. In Hughes v. Wagner, 303 S.W.2d 181, the St. Louis Court of Appeals considered a maintenance decree providing $12.50 per week child support. The husband paid only $10.00 per week for many weeks, and then applied for a smaller allowance. The trial court amended the earlier support order to allow the $300.00 accumulated arrearage to be paid off in four installments of $75.00 over a four year period. On appeal the court stated, “There is nothing in the language of the act (same as Section 452.070 above) which expressly confers upon the court power to revoke or modify an installment of alimony or maintenance accrued prior to the filing of an application, and every reasonable implication must be drawn against the existence of such power in the absence of clear language manifesting an intention to confer it.”

We add a final reason. Based on its power and authority to order a father to support his unemancipated minor children, the court has decreed that a single sum be paid each month. There is no showing of any event that as a matter of law modified the support order or that destroyed the legal basis of such an order, as, for example where there is only one child of the marriage and he has attained majority. So long as there is left at least one minor unemancipated child there remains a legal basis for the single sum allowance. If the father believes that the single sum allowed is no longer a fair allowance he has the right to seek a prospective modification of the decree from the appropriate court upon a proper legal showing.

Under the circumstances presented Mrs. Gordon had a vested right in the accrued installments which the court could not impair or take away from her by preventing their garnishment. Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066. The order of the circuit court quashing the garnishment as to any excess over $40.00 was erroneous.

In saying what we have, we do not pass on the question of whether the evidence presented at the hearing did in fact establish the emancipation of Ellen when she married. For the purpose of this opinion we have assumed her emancipation by her marriage. Nor do we pass on the question of whether, if Ellen had been the only child of the Arys, her marriage, ipso facto, i. e., without need of seeking a court modification, would have terminated the decree child support allowance. Those interested in these questions, unnecessary to our decision here, should see, Annotation, Marriage of Minor Child, 58 A.L.R.2d 355 ; Schaffer v. Security Fire Door Company, Mo.App., 326 S.W.2d 376, Transf., Mo., 332 S.W.2d 860; Green v. Green, Mo.App., 234 S.W.2d 350; Hayes v. Hayes, Mo. App., 156 S.W.2d 34; Swenson v. Swenson, Mo.App., 227 S.W.2d 103, Annotation, Alimony-Retrospective Modification, 6 A.L.R. 2d 1277.

For the reasons stated above, the judgment is reversed and the cause is remanded for entry of a new judgment in accordance with the ruling of this opinion. It is so ordered.

All concur.


author: DOERNER, Commissioner.

text:
    STATE of Missouri ex rel. Eve MELETIO, Executrix Under the Will of G. William Meletio, Deceased, Relator, v. David R. HENSLEY, Judge of the Probate Court of St. Louis County, State of Missouri, Respondent.
    No. 31003.
    St. Louis Court of Appeals. Missouri.
    June 12, 1962.
    Pollock, Ward, Klobasa & Shaw, T. Hartley Pollock, John A. Shaw, William E. Buckley, Douglas B. Remmers, St. Louis, for relator.
    Chapman, Schwartz, Chapman & Kroen-ing, Adolph K. Schwartz, Peter R. Viviano, St. Louis, for respondent.
   DOERNER, Commissioner.

This is an original proceeding in prohibition. Relator seeks to restrain the respondent, Judge of the Probate Court of St. Louis County, Missouri, from exercising jurisdiction of the issues presented by a petition filed by The Meletio Company, a corporation, in the Estate of G. William Meletio, deceased.

The essential facts are these: On April 7, 1959, G. William Meletio and John H. Meletio, who owned or controlled the majority of the outstanding common stock of The Meletio Company, a Delaware corporation, and that corporation, entered into a written contract entitled “Stock Retirement Agreement.” By that instrument the parties agreed that neither of the two individual stockholders might dispose or encumber any of his stock in the Company without first obtaining the written consent of the other; and that in the absence of a written consent from the other, if either stockholder desired to sell he was required to sell to the Company, and the Company was obligated to buy. In paragraph 2 of the agreement it was further provided:

“2. Upon the death of a Stockholder all his stock shall be purchased or redeemed by the Corporation. The purchase or redemption price of each share of stock shall be the amount computed under the provisions of paragraph 4 as set out hereafter. The purchase price shall be paid in the manner set forth in paragraph 3 of this agreement. The estate of the decedent shall be obligated to offer such stock for sale or redemption as herein provided and such offer shall be made or deemed to have been made within thirty (30) days after the qualification of a legal representative of such estate.”

In paragraph 4 it was recited that the purchase or redemption price was to be the book value of the stock as determined by the Company’s independent public accountants in accordance with the customary accounting procedures used by the Company, adjusted, however, to reflect the market value of any listed securities which the Company might own. By paragraph 3 it was further agreed that in the case of the stock of G. William Meletio the first $100,000 of the purchase price was to he paid in cash, and the balance was to be evidenced by promissory notes payable in annual installments equal to 10% of the total unpaid balance, with interest at 5%. Subparagraph (d) of that paragraph provided :

“(d) The aforesaid cash and notes, if any shall be paid and delivered to the legal representative of the estate of the deceased Stockholder as soon after the qualification of the legal representative of such estate as may be practical, but shall in any event be paid and delivered within one year next following the qualification or appointment of such legal representative. Upon delivery of the aforesaid cash and notes, if any, in payment of the aforesaid purchase or redemption price, the stock certificates shall be delivered, duly endorsed for transfer, to the Corporation or to the other Stockholder with the necessary transfer stamps thereon duly affixed and cancelled, together with all the necessary documents effectively to transfer such stock.”

G. William Meletio died a resident of St. Louis County, Missouri, on April 17, 1960. In due time his will was admitted to probate and in accordance with the terms thereof the relator, the widow of the testator, was appointed executrix. On or about February 16, 1961, The Meletio Company filed ⅛ the Probate Court a petition entitled “Petition for Order of Redemption of Stock,” in which, after referring to and incorporating by reference an attached copy of the Stock Retirement Agreement, it alleged:

“3. Upon the date of death of G. William Meletio, he was the owner of five hundred fifty-two (552) shares of the common stock of The Meletio Company.”

It was further alleged that the value of such stock, as determined in accordance with the Stock Retirement Agreement, was $445.69 per share, or a total of $246,020.88; that the Company was “ready, willing and able to complete the purchase or redemption of all of the said stock of G. William Meletio, deceased,” and that it thereby tendered to the court and to the executrix the sum of $100,000 in cash and the notes, as provided in the Stock Retirement Agreement; and that the Company “is the owner” of the said 552 shares “as provided under said Exhibit ‘A’” (the Agreement), which shares “are in the possession of the Executrix of this Estate and are being wrongfully withheld from the undersigned by said Executrix.” The petition concluded with the prayer “that the Court order and direct the Executrix to accept payment for the said five hundred fifty-two (552) shares of common capital stock of The Meletio Company as provided in Exhibit ‘A’ and to deliver said five hundred fifty-two (552) shares of stock to Petitioner.” Subsequently the company amended its petition by alleging that the value of the stock was $449.-35 per share, or a total of $248,041.20.

Relator filed an answer to the petition of The Meletio Company, subsequently amended, in which, among other matters not here pertinent, she pleaded that the Probate Court lacked jurisdiction of the subject matter of the petition, and that it had no jurisdiction to hear and determine the same. The Company filed a reply in which it claimed that the Court had jurisdiction under V.A.M.S. § 473.357. The Company’s petition to redeem the stock was set for a hearing, at which time relator objected to the court proceeding, and moved that the petition be dismissed because of the lack of jurisdiction. Respondent overruled the motion, held that the Probate Court had the requisite jurisdiction to entertain the petition, and relator thereupon instituted this proceeding.

As stated by the respondent in its brief, and concurred in by relator, “The only question to be determined by this Court is whether or not the Probate Court of St. Louis County has jurisdiction of the proceedings under V.A.M.S., Sec. 473.357.” As amended, that section now reads:

“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, and judgment shall be rendered according to the finding and for costs.”

Section 473.357 was first enacted in 1955 as a part of our new probate code, Laws 1955, p. 385, Sec. 133, and was amended in 1959 in a manner not here relevant, Laws 1959, S.B. 141, Sec. 1. A search of the model probate code, the source of much of our new code, failed to reveal a similar section. Simes (Michigan Legal Studies)— The Model Probate Code. The comment ■of the committee which drafted the new probate code was that Section 473.357 was “an entirely new section which has been drafted to meet criticisms of the present law by the bar. It authorizes a proceeding to determine title of property which is in the possession of the executor or administrator, in the probate court.” See Smith v. Gilmore, 13 Mo.App. 155.

The language of the statute is clear and unambiguous. Under Section 473.357 the essential allegations which must be made by the petitioner in his verified petition are: (1) That the decedent was not the owner of the described and disputed personal property; (2) That the petitioner is the owner; (3) How the petitioner acquired ownership; and (4) That possession thereof is being wrongfully withheld from petitioner by the executor or administrator. And the petitioner must pray that the court determine the title to the property.

It is obvious that the “Petition for Order of Redemption of Stock” filed in the Probate Court by The Meletio Company does not contain all of the essential allegations required by Section 473.357. It is not alleged in the petition that the decedent “was not * * * the owner” of the 552 shares of stock. On the contrary, it is affirmatively alleged that “Upon the date of death of G. William Meletio, he was the owner of five hundred fifty-two (552) shares of the common stock of The Meletio Company.” 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.

Furthermore, while it is alleged in the petition that The Meletio Company is the owner of the stock, this claim is predicated upon the succeeding clause “as provided under said Exhibit ‘A’,” the Stock Retirement Agreement. This claim of ownership is based on the theory of The Meletio Company that by that Agreement the legal title to the stock immediately passed to the Company on the death of the decedent. The general rule is that the title to personal property of a decedent vests in the personal representative charged with the responsibility of the administration of his estate. Haley v. Horjul, Inc., Mo., 281 S.W.2d 832. There is nothing in the Agreement which contravenes or conflicts with this general rale. In fact, as the portions heretofore quoted show, it was recognized that the title to the stock was not to pass to The Meletio Company until the Company paid the purchase price to the personal representative and the latter delivered the stock certificates to the Company, duly endorsed for transfer.

Lastly, it is likewise clear from the prayer of the petition that the relief sought by the petitioner is not within the purview of Section 473.357. The petitioner did not ask that the court determine its title to the stock. The relief prayed was that the court order and direct the executrix to accept payment “as provided in Exhibit ‘A’,” the stock Retirement Agreement, and that she be required to deliver the stock to the petitioner. Such an order would be the equivalent of a decree for the specific performance of a contract to sell stock, not a determination of the title thereto as contemplated by Section 473.357.

Respondent contends that the cases of Longacre v. Knowles, Mo.Sup., 333 S.W.2d 67 and Masterson v. Plummer, Mo.App., 343 S.W.2d 352 support his claim of jurisdiction. While those cases involved petitions under Section 473.357, the factual situations were in no way similar to the facts in the instant case, the decisions dealt only with the merits of the controversies presented, and the jurisdiction of the Probate Court under that statute was not raised or discussed.

As stated, respondent’s only claim of jurisdiction to hear and determine the issues presented by the Petition for Order of Redemption of Stock is based on Section 473.357. Since the petition does not state a cause of action or claim for relief cognizable under that statute, and cannot be amended to do so, the respondent is acting without and in excess of his jurisdiction. State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 646. The Commissioner therefore recommends that the preliminary rale in prohibition be made absolute.

PER CURIAM.

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

Accordingly, the preliminary rule in prohibition is absolute.

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


author: BRADY, Commissioner.

text:
    Jerome J. VENKER, Plaintiff-Appellant, v. Charles G. HYLER, The News-Sun Printing & Publishing Company, a corporation, and Raymond R. Roberts, Defendants-Respondents.
    No. 30814.
    St. Louis Court of Appeals. Missouri.
    June 12, 1962.

      Donald E. Gillihan, Farmington, for appellant.
    Roberts & Roberts, Raymond R. Roberts, Raymond S. Roberts, Farmington, Robert A. Mcllrath, Flat River, for respondents.
   BRADY, Commissioner.

The appellant, hereinafter referred to as the plaintiff, filed suit for libel against the respondents, hereinafter referred to as the defendants. The plaintiff is a licensed pharmacist and the owner and operator of the Venker Rexall Pharmacy located at 200 Lincoln Street, Desloge, Missouri. The defendants Hyler and Roberts are respectively the assistant prosecuting attorney and the prosecuting attorney of St. Francois County. The defendant, The News-Sun Printing and Publishing Company, is a Missouri corporation which publishes a weekly newspaper known as The Lead Belt News. The trial court dismissed plaintiff’s petition with prejudice upon defendants’ motions. Plaintiff appeals.

On October 24, 1960, The Daily St. Francois County Journal, Inc. published a story in the newspaper owned and published by it which recited that through the combined efforts of the law enforcement officers of St. Francois County, the State Highway Patrol, and the police of the City of Farm-ington, the plaintiff, Venker, had been arrested and released on bond in a misdemeanor case for illegal sales of “strong drugs.” The article also contained certain statements attributed to the defendant Roberts as to the manner in which the facts became known, and that plaintiff had readily admitted the illegal sales when questioned. On October 29, 1960, after that story appeared, plaintiff filed an action for libel praying for actual damages in the amount of $250,000, and punitive damages in the same amount. Defendants in that action were the individual defendants Hyler and Roberts, and The Daily St. Francois County Journal, Inc. On October 31, 1960, this plaintiff filed an action for libel against the individual defendants, and The News-Sun Printing and Publishing Company in which it was alleged that on October 27th, what was essentially the same story as had previously appeared, had been published by the defendant corporation in its newspaper known as The Lead Belt News. In this action plaintiff prayed for actual damages in the amount of $1,000, and punitive damages in the amount of $10,000. The other pertinent facts are completely given in Venker v. Hyler, Mo.Sup., 352 S.W.2d 590, but perhaps should be briefly summarized here.

Defendants served notice to take depositions. This notice did not advise plaintiff of the witnesses to be examined, as required by Supreme Court Rule 57.08, V.A.M.R. The notary public before whom the depositions were to be taken issued a subpoena ad testificandum directed to plaintiff’s counsel, and also issued a subpoena ad testificandum and duces tecum to produce certain evidence. On the same day that these subpoenas were served, plaintiff filed a document entitled “Motion For Protective Order.” That motion recited the fact of plaintiff’s arrest and his charge with certain criminal acts (see Sections 195.220-195.270 RSMo 1959, V.A.M.S.) and averred that the Constitutions of the United States and of Missouri assured him of the right of a speedy trial; that his attorney’s full time was needed to assure him of that right; that denial of his attorney’s full time would constitute “an oppression for which protectives orders may be granted”; and that his attorney believed that the criminal action could be disposed of within about a month and thereafter his attorney would be available for proceedings in connection with the libel action. This motion prayed that the defendants be prevented from taking depositions for approximately thirty days. On the date on which depositions were to be taken, counsel for plaintiff appeared and advised the notary public and counsel for the defendants that plaintiff refused to appear upon his advice on the grounds that the notary had no power to issue a subpoena duces tecum absent an order of the circuit court in which the libel action was pending and that plaintiff was willing to come before the notary on proper notice and produce any evidence which the trial court in its discretion saw fit for plaintiff to produce. He suggested a referral of the matter to the circuit judge and stated that upon a hearing of the matter the plaintiff would abide by the ruling of the circuit judge. It further appeared that at this time counsel for defendants advised plaintiff’s counsel that in view of his client’s failure to appear after having been subpoenaed, defendants expected to file their motion to dismiss plaintiff’s case with prejudice regardless of plaintiff’s willingness to bring to any future hearing the items called for in the subpoena duces tecum. The next day the defendants filed their motion to strike plaintiff’s petition and dismiss his action with prejudice, and attached thereto a copy of the subpoena duces tecum and a transcript of the proceedings held before the notary the previous day. Thereafter counsel for all the parties appeared before the trial court and in connection with the merits of defendants’ motion to dismiss plaintiff’s petition with prejudice, the same incidents were discussed at length. During this discussion it developed that the plaintiff’s counsel, by telephone, after the date on which he had refused to produce the plaintiff, advised defendant’s counsel that he had made additional research of the law and was now willing to produce the plaintiff upon a day that would meet with the convenience of counsel for the defendants. Some eight days later, the trial court entered its order dismissing the plaintiff’s petition with prejudice at plaintiff’s cost. This order was entered in each of the cases.

A reference to the opinion, Venker v. Hyler, Mo.Sup., 352 S.W.2d 590, will completely state the pleadings, procedures and all the matters that were therein presented and ruled. The defendants in the instant case have filed as exhibits the transcript and copies of the briefs filed by the respective parties in the earlier action. A comparison with the transcript and briefs filed in the instant action discloses that the issues, pleadings, procedures and all matters in that case are identical with those now involved in this case. The points appellant urges are even worded identically, punctuated in the same manner, and the cases cited in support of each of the points are the same in both cases. The only difference between the instant case and that before the Supreme Court is that in the instant case the plaintiff failed to call his “Motion For Protective Order” to a hearing prior to his refusal to appear and testify in the deposition. In the earlier action there was a hearing held on this motion and the trial court ruled upon it. The defendants contend that the failure by the plaintiff to have this motion disposed of prior to the hearing on the trial court’s action in dismissing the case shows that the plaintiff did not act in good faith, and therefore the dismissal should be affirmed as entered, that is, with prejudice, instead of being affirmed with modification by ordering the dismissal to be entered without prejudice, as the Supreme Court ordered in Venker v. Hyler, supra. We cannot agree. Since the Supreme Court held in Venker v. Hyler, supra, at 1. c. 596 that this motion was “ * * ⅜ so lacking in merit as to warrant no serious consideration”, this factual difference between the cases cannot make necessary any distinction nor compel any difference in the result reached.

The opinion and judgment in Venker v. Hyler, supra, completely disposes of the issues in this case. That decision is binding upon this court. Accordingly, the judgment of the trial court dismissing plaintiff’s action with prejudice and at the cost of plaintiff is ordered modified to the extent that plaintiff’s action shall stand dismissed at the cost of plaintiff but without prejudice to the right of plaintiff in good faith and upon probable cause to file the same anew within the period of limitations fixed by statute for the filing of action for libel. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment of the trial court dismissing plaintiff’s action with prejudice and at plaintiff’s costs is therefore ordered modified to the extent that plaintiff’s action shall stand dismissed at plaintiff’s costs but without prejudice.

ANDERSON, P. J., WOLFE, J., and KIMBERLIN, Special Judge, concur.


author: BROADDUS, Judge.

text:
    Marie SMITH, Respondent, v. TRANS WORLD AIRLINES, INC., a Corporation, Appellant.
    No. 23543.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    Wm. A. Rundle Jr., F. Burclc Bailey, Morrison, Hecker, Cozad & Morrison, Kansas City, for appellant.
    Loomis & Lacy, J. M. Loomis, Kansas City, for respondent.
   BROADDUS, Judge.

Plaintiff commenced this action by the filing of a petition for damages in the Circuit Court of Jackson County, Missouri, at Kansas City, against defendant Trans World Airlines, Inc., praying for damages for personal injuries in the amount of $7500. The case was tried before a jury and the Honorable Ben Terte, Judge of Division No. 9 of the Circuit Court of Jackson County, Missouri. The jury returned a verdict in favor of defendant upon which judgment was entered. On May 26, 1961, plaintiff filed her motion for a new trial which was sustained as to “points 2 and 13” thereof on August 23, 1961, by the Honorable Harry A. Hall temporarily sitting as Judge of Division 9 for the purpose of hearing plaintiff’s motion for a new trial during Judge Terte’s absence due to illness. Defendant thereafter filed its notice of appeal to this court. The facts in brief are as follows:

On March 14, 1958, at approximately 6:55 P.M. plaintiff then 50 years of age, in company with her husband, Ray Smith, and a third party, Mr. W. A. Heller, boarded defendant’s flight 143 at St. Louis, for a flight to Kansas City, Missouri. The aircraft plaintiff boarded was a Trans World Airlines Constellation. Plaintiff entered the aircraft at the rear and was met at the entranceway by a hostess. She inquired of the hostess as to where all three members of her party could find seats together and was informed that such seats could be had in the forward lounge. The forward lounge in this particular Constellation was in the foremost portion of the aircraft immediately behind the cockpit or flight deck and was separated from the main cabin by a galley or hostess working area. The forward lounge and galley were on a level 9¼ inches lower than the floor of the main cabin and divided from the main cabin by a bulkhead in the center of which is a door 22 inches wide and a step 9¼ inches high.

Plaintiff led the way forward along the main cabin aisle with no one in front of her, walking in a normal manner, with her husband, Ray Smith, immediately behind her and Mr. Heller (who did not testify in the case) behind him.

From this point the evidence of plaintiff and defendant was in direct conflict. It was plaintiff’s evidence that upon reaching the door to the galley the door was closed concealing the step but she continued walking, looking straight ahead, and without breaking stride pushed the door open and fell through the door and down the step all in one motion.

As opposed to this testimony of plaintiff, one Mrs. Luther Fisher, who had been a passenger on the same flight, testified that she and her husband who was hospitalized at the time of the trial, were the first passengers to board Flight 143 that evening and that they had walked forward through the main cabin and galley to the lounge passing through the door in question and1 that the door was open. After reaching the lounge Mrs. Fisher testified she was still' standing facing the entrance to the lounge and saw plaintiff and her party in the middle of the main cabin coming down the main aisle; that the next time she saw plaintiff was just before plaintiff came through the door and before she fell and that at this time plaintiff had her head turned to the left talking to her husband; that she came through the door “flying”. It was witness Fisher’s further testimony (in contradiction of plaintiff’s testimony that she had opened the door herself) that the door to the galley was already open (revealing the step) as-plaintiff approached and had not been opened by plaintiff. On cross-examination by plaintiff’s counsel, the witness Fisher reiterated that the door was open at all' times from the time she first saw plaintiff in the middle of the cabin until she fell; that the door was already open before plaintiff arrived at it.

In rebuttal plaintiff put Captain J. J. Frank, who was traveling as an additional crew member, on the stand. Captain Frank testified differently from either plaintiff or Mrs. Fisher in that he said he was walking-behind plaintiffs party and that as plaintiff reached the door it was partly closed.

Plaintiff attributed her fall to un familiarity with the step arrangement in the aircraft and to inadequate lighting. It was undisputed at the trial that there were no signs indicating a step beyond the door, but the evidence as to lighting was in conflict with plaintiff’s evidence to the effect that the lighting in the galley was inadequate and with the evidence of the defense to the effect that the aircraft was well lighted throughout. In addition to the general lighting there was a step light in the step riser which was lighted and which cast illumination upon the galley floor at the step and which could be seen even with the door partly closed.

Defendant’s first contention is that the court erred in sustaining ground 2 of plaintiff’s motion for new trial. That ground reads as follows:

“(2) That the Court erred in giving its Instruction No. 6 offered by defendant over plaintiff’s objections for the reason that there was no evidence to support the requested findings of fact in said instruction”.

Instruction No. 6 was defendant’s contributory negligence instruction and is as follows:

“The Court instructs the jury that it was the duty of the plaintiff, Marie Smith, in walking through defendant’s airplane to exercise such care for her own safety as an ordinarily prudent person would use under the same or similar circumstances. If you find and believe from the evidence that defendant’s airplane was unsafe in the particulars referred to in Instruction No. 1, if you so find, yet if you further find that plaintiff walked along the aisle of defendant’s airplane and stepped through the open door, if you so find that the door was open, and into the galley or hostess working area before looking where she was stepping, if you so find, and if you further find that plaintiff in the exercise of ordinary care should have looked and should have seen the step mentioned in evidence before stepping through said door, so as to have recognized the danger to her of falling if she failed to heed its presence, if so, and if you find that plaintiff failed to look and see said step and recognize such danger to her, and if you find that such failure to look and see said step and recognize the danger was negligence, and if you find that such negligence directly contributed to cause the fall and injuries of which plaintiff complains, then plaintiff is not entitled to recover and your verdict must be for the defendant”.

A reading of the instruction discloses that the findings of fact called for by the instruction as a prerequisite to a finding of contributory negligence were: (a) That the door was open; (b) That plaintiff stepped through the door before looking where she was stepping and failed to see the step and recognize the danger.

According to the testimony of Mrs. Fisher the door was open not only at the time plaintiff stepped through it but at all times while plaintiff approached it. And that “just before she (plaintiff) came through the door and before she fell * * * she appeared to be talking to her husband. She had her head turned to the left”. Supplementing this testimony was the further evidence that the aircraft was well lighted throughout together with an operating light in the riser of the step itself.

From the above it is clear that there was ample evidence upon which to base the instruction if, as asserted by defendant under its Point 2, the testimony of Mrs. Fisher should have remained in the case. Defendant states that Point as follows:

“The Court erred in sustaining Point 13' of Plaintiff’s Motion for a New Trial Because Defendant’s Answers to Plaintiff’s Interrogatories Were Not Judicial Admissions and Did Not Preclude Defendant from Introducing Testimony from the Witness Fisher Which Conflicted with the Answers”.

As a part of the pre-trial discovery proceedings in this case plaintiff filed certain interrogatories which were answered under oath by defendant and read into evidence at the trial as admissions against interest by plaintiff as part of her case. The interrogatory and answer in question here is as follows:

Interrogatory No. 13: “At the time of the accident in question, was the door from the main aisle to the galley open or closed?” Answer No. 13: “When the accident in question occurred plaintiff had opened the door from the main aisle to the galley”. As we have said, during the trial of the case in apparent contradiction to this answer defendant put Mrs. Fisher on the stand who testified unequivocally that the plaintiff did not open the door, and that the door was open at all times during plaintiff’s approach to it along the main cabin aisle.

Plaintiff did not object to this testimony from Mrs. Fisher at the time it was offered, which was on the second day of the trial, although on the third day of trial plaintiff moved to strike this portion of the testimony of the witness Fisher on the same grounds set forth in Point 13 of the new trial motion. Defendant objected to the striking of this testimony and was sustained by the court.

In her new trial motion plaintiff again raised this issue under Point 13 thereof as follows: “(13) That the Court erred in allowing the testimony of the witness Fisher, in evidence that the door in question was ■open over plaintiff’s objections for the reason that such testimony was in direct conflict with the sworn statement of defendant in defendant’s answers to plaintiff’s interrogatories which were in evidence, that the plaintiff had opened the door”.

The net result of the lower court’s ruling is to the effect that a party is con•clusively bound by answers to interrogatories and cannot introduce evidence inconsistent therewith or contradictory thereto. In our opinion, this is not true.

It may be that the court’s error in sustaining Ground 13 of the new trial motion came about because of a failure to draw the proper distinction between an admission against interest and a judicial admission. There is no question but that once having made a true judicial admission, the declaring party is estopped from denying or contradicting it. May v. May, 294 S.W.2d 627, Mo.App. But defendant’s answer to plaintiff’s interrogatory should be considered as nothing more than an admission against interest.

It has long been the rule in Missouri that a party is not conclusively bound by his deposition answers, but on the contrary may explain them away or contradict them at the trial. Parmley v. Henks, 285 S. W.2d 710, 714, Mo.Sup.; Moore v. Ready-Mixed Concrete Co., 329 S.W.2d 14, 20, Mo.Sup., and by the very wording of the Missouri rules concerning interrogatories they are co-extensive with and can be used to the same extent as depositions. Rules 56.01 and 57.01 Missouri Rules of Civil Procedure, V.A.M.R. As said by our Supreme Court in the case of State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907, 910: “They (interrogatories) provide a less formal and less expensive way of ascertaining facts than by depositions.”

Apparently the question is one of first impression in this State. However, the courts of other states have had occasion to consider it. One of the clearest cases is that of Ridley v. Young, 127 Colo. 46, 253 P.2d 433, decided by the Supreme Court of Colorado, en banc, 1953. In that case plaintiff Ridley was in defendant Young’s car and was injured when the car overturned. In his answer defendant alleged that plaintiff was driving the car but in his answers to plaintiff’s interrogatories, submitted before trial, admitted that he (defendant) was driving the car. At the trial, however, two witnesses introduced by defendant testified in such manner as to strongly prove that plaintiff had been driving the car with defendant asleep in the back seat. Defendant had judgment and on appeal plaintiff alleged error on the part of the trial court in permitting the said witness to testify for the defense in contradiction of the defendant’s answers to plaintiff’s interrogatories. This is the same situation as we have here. In ruling that the trial court had not committed error in this respect, the Court stated, 253 P.2d at 434:

“First: Where a defendant, in an action to recover damages for personal injuries answers interrogatories under Rule 33 R. C.P.Colo. and therein makes admissions against his own interest and thereafter does not appear upon the trial, and plaintiff offers the answers to the interrogatories in evidence; must the trial court reject the evidence of witnesses to the accident, who are called by counsel appearing for defendant, if the testimony of such witnesses contradicts the statements of defendants as contained in the answers to the interrogatories?

“This question is answered in the negative. On behalf of Ridley it is contended that the answers made by Young to the interrogatories amount to judicial admissions, and that defendant Young is bound thereby and cannot contradict or impeach his own statements by offering witnesses to testify that his answers were false. * * *

“Answers made by a party to interrogatories submitted by his adversary are not evidence in a cause until introduced as such during the course of trial. When such answers are introduced in evidence they stand on the same plane as other evidence and may be treated as admissions against interest. * * * While the answers in the instant case were made by defendant Young they were offered as part of plaintiff Ridley’s case just as any other statement against interest might have been received in evidence. * * * ”

Other cases which hold that a party is not conclusively bound by his answers to interrogatories are Foster v. Montgomery Ward & Co., 24 Wash.2d 248, 163 P.2d 838, 843; Bochicchio v. Petrocelli, 126 Conn. 336, 11 A.2d 356, 357, 127 A.L.R. 457; Tighe v. Skillings, 297 Mass. 504, 9 N.E.2d 532; O’Brien v. Harvard Restaurant and Liquor Co., 310 Mass. 491, 38 N.E.2d 658; Safeway Trails, Inc. v. Smith, 222 Md. 206, 159 A.2d 823, 829, and Chaplain v. Dugas, 323 Mass. 91, 80 N.E.2d 9, 12.

Many years ago in the case of Smith v. Olsen, 92 Tex. 181, 46 S.W. 631, the Supreme Court of Texas said: “Cases which have come to this court show that the procedure in question is frequently resorted to for the purpose of entrapping the opposite party into an unguarded admission; and it doubtless occurs in many instances that a party in answering interrogatories, uses language against his own interest, which is capable of explanation, and which he ought to have the right to explain. Therefore, to make his answers conclusive would be to make the procedure a means of injustice, which would probably, in the long run, counteract the benefits which might be expected to follow from it”. The logic of this statement is as valid at the present time as it was when first uttered.

Plaintiff cites from Missouri cases in support of her position. Except for the case of McCallum v. Executive Aircraft Co., 291 S.W.2d 650, Mo.App., the portions of the three cases quoted in her brief are merely definitions of the rule concerning judicial admissions, and in no way rule the point here in issue. Plaintiff quotes the following which appears on page 656 of the McCallum opinion.

“Under this point, defendant argues that the instruction does not require the jury to find that defendant’s employee was authorized to make the representation as to airworthiness of the plane. There is no merit in this contention. The defendant, in answer to interrogatories submitted, stated that its employee was authorized ‘to release said aircraft for flight and airworthiness respecting the aircraft propeller * * */ This was a judicial admission of fact.”

The above language by no means implies that defendant was conclusively bound by its answer. Indeed the natural inference to be drawn from the language immediately following the above quoted portion of the opinion is that the defendant in that case could have disputed its answers to interrogatories had it chosen to do so. That language is: “It is not error for an instruction to assume a fact established by undisputed evidence and concerning which there is no real isssue”. (Emphasis supplied)

The order granting a new trial is reversed and the cause remanded with directions to reinstate the verdict and enter judgment thereon for the defendant.

All concur.


author: SPERRY, Commissioner.

text:
    Gerald K. FIELDS, Plaintiff-Appellant, v. KANSAS CITY, Missouri, a Municipal Corporation, Defendant-Respondent.
    No. 23330.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Robert L. Robertson, Fred J. Freel, Kansas City, Marvin Pollard, Ludlow, Walter A. Raymond, Kansas City, for appellant.
    Keith Wilson, Jr., City Counselor, John J. Cosgrove, Associate City Counselor, Robert A. Meyers, Associate City Counselor, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff fell into an open manhole in a public alley, in Kansas City. He sued defendant City for damages for personal injuries suffered from the fall. There was a verdict and judgment for plaintiff in the amount of $10,000 but, on motion, the Court granted a new trial for error in plaintiff’s instruction No. 1. Plaintiff appeals.

Plaintiff testified to the effect that, in the evening of Sept. 5, 1956, at about 8:00 P. M., while it was daylight, he parked his car in a parking lot located south of 13th St., on the alley where the accident occurred; that he had previously parked there; that he went into a tavern, on the alley, and drank two vodka collins; that he intended driving to Polo to meet a friend for whom he hoped to get a job; that he left the tavern at about 10:00 p. m. to get his car; that, as he walked in the alley toward the parking lot, he fell into an open manhole and was injured; that it was dark in the alley and he did not see the hole; that, shortly after he got out, a city truck with one man driving it, arrived, and the police were notified. He stated that he had parked his car in this parking lot on occasions prior to this; that there were lights in the lot, about 40 feet from the manhole, but that the buildings shadowed the manhole; and that he did not see the manhole cover, which was lying near the manhole. No other witness saw the accident.

Mr. Winfrey, chief of defendant’s Fire Prevention Bureau, was called as a witness by defendant. He stated that on the night mentioned he received a call notifying him of a fire hazard because of gas collecting in the sewer in the alley above mentioned; that he notified defendant’s Public Works Department to send personnel and equipment for flushing the manhole; that he proceeded to the point indicated; that, when he arrived at the manhole, it was covered; that no other person was present; that, thereafter, a man from public works arrived in a pick-up truck; that he and this man removed the cover from the manhole; that a man from Public Works arrived with a flusher tank on a truck; that he sent him after a load of water; that the truck returned and witness directed that the water be dumped into the manhole; that, before the water was all dumped, he told the Public Works men to get more water and dump it in; that he then left; that when he left there were two public works men at the scene; that, as he was driving his car away from the curb so that the truck could get out of the alley, the truck was backing away from the manhole to go after another tank of water. He stated in his deposition that one could see this manhole from the entrance to the alley on 13th St., at night; that the alley was well lighted.

Mr. Williams, a Public Works employee who operated the flusher tank truck, testified on behalf of defendant to the effect that at about 9:00 p. m., he received instructions to take a flusher tank truck to the alley; that when he arrived there chief Winfrey and two gas inspectors were the only persons present; that the manhole was covered; that it was then 10:30 p. m.; that the chief told him to get a tank of water and flush it into the manhole; that he procured a tank of water and returned; that, at that time, the manhole was uncovered and no one was present except the chief; that he dumped this load and the chief told him to get more water; that he went after it and, when he came back, no one was present except plaintiff, who stated that he had fallen into the manhole; that plaintiff had no blood on him, no sign of injury, and made no complaint of injury; that his eyes were bloodshot, his talk was “draggy”, and that he had been drinking; that witness notified the police, who arrived within a few minutes.

Plaintiff’s first contention is that the Court should have directed a verdict for him and that error in his instruction No. 1, if any, is not material.

Defendant generally denied plaintiff’s allegations and pleaded contributory negligence. The Court instructed on the issue of contributory negligence. There was testimony to the effect that one standing at 13th St. could have seen the manhole. Plaintiff admitted that he had parked his car just off of the alley and walked down the alley, past the manhole, to a tavern where he spent two hours and had some drinks. There was testimony to the effect that, when Williams arrived with the second load of water, defendant’s eyes were bloodshot, his speech “draggy”, and that he had been drinking. The burden was on plaintiff to prove that he fell into the manhole and was injured.

The fact that plaintiff actually fell into the manhole was an essential element of his case. In Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 693, the Court said:

“It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. (Citations) There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is un-impeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass.” (Citations). (Emphasis ours.)

The above rule is the correct rule and is not in conflict with that declared in Noble v. Missouri Insurance Company (Mo.App.), 204 S.W.2d 446, 448-449, and Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287, cited by plaintiff. The Court was not authorized to direct a verdict for plaintiff.

Plaintiff contends that its verdict directing instruction is not prejudicially erroneous. That instruction is as follows:

“You are instructed that, under the law, the city of Kansas City, Missouri, the defendant herein, is charged with the duty of maintaining its alleys in a reasonably safe condition, so that those having occasion to use them may do so in safety. It was the duty of the defendant to keep the alley mentioned in evidence in a reasonably safe condition at the sewer manhole in question, by keeping it covered. If the defendant, its agents, servants and employees removed the manhole cover on the occasion mentioned in evidence, and defendant through the agents, servants and employees of its public works department, then left the manhole uncovered, unguarded and unprotected, then such an act on the part of the city was negligence. And if you shall believe from all the evidence in this case that the plaintiff, while in the exercise of ordinary care, fell into the sewer manhole in the alley mentioned in evidence while walking south in said alley, by reason of the negligence of the defendant, as in this instruction defined, and that by reason of such fall plaintiff sustained the injuries complained of, then your verdict must be for the plaintiff.” (Emphasis ours.)

The instruction is erroneous in two respects. First, it was error to inform the jury that defendant was charged with the duty of maintaining its alleys in a reasonably safe condition. Defendant had only the duty to exercise ordinary care to keep its alleys in a reasonably safe condition for travel. Von Der Haar v. City of St. Louis (Mo.App.), 226 S.W.2d 376, 381.

Second, it was error to instruct the jury that it was the duty of the defendant to keep the alley in a reasonably safe condition by keeping the manhole covered. Under the common law there are other ways to keep a manhole reasonably safe for travel by the public than by keeping it covered. Von Der Haar v. City of St. Louis, supra, 381.

The question presented is whether or not the errors mentioned are such as to have materially affected the merits of the case. Plaintiff contends that such could not be true here because, in the latter part of the instruction, the jury was required to find every essential fact necessary to his right to recover. This Court said, in Brolin v. City of Independence, 232 Mo.App. 1056, 114 S.W.2d 199, 202: “Of course, the first sentence of the instruction constitutes a statement of a mere abstract proposition of law and it is well settled that even though the duty of a city is stated too broadly in that connection, if sufficient facts are subsequently submitted in the instruction, to entitle plaintiff to recover, the error is cured.” (Emphasis ours.)

The author of that opinion cites Drake v. Kansas City Public Service Company, 333 Mo. 520, 63 S.W.2d 75. In that case the Court said (63 S.W.2d 1. c. 83) :

“In the instant case, after the abstract general statement in the first paragraph of the instruction, the second paragraph requires the jury to find certain facts as to the condition of the street, and that by reason thereof it was ‘dangerous and not reasonably safe’ (in the conjunctive), and that the defendant knew or should have known thereof in time by the exercise of ordinary care to have repaired it, and failed to exercise such care, and was thereby guilty of negligence (as the term negligence is defined in other instructions), etc. The facts required to be found to establish liability and the measure of defendant’s duty are correctly set forth in that part of the instruction which purports to tell the jury what they must find in order to return a verdict for plaintiff. The first paragraph is thus explained and qualified, and the error therein, if it is error, rendered harmless.”

In Patterson v. Thompson (Mo.App.), 277 S.W.2d 314, 320, the Court said:

“The general rule is that while abstract instructions are not favored, if they correctly declare the law and are accompanied by other instructions which properly apply the law to the facts, the giving of such is not error. * * * But in order to sustain an abstract instruction it must appear that it not only properly declares the law but is not misleading. (Emphasis ours.)

The abstract statements above mentioned constitutes a misdirection to the jury. The instruction does not require sufficient findings of fact by the jury to render the error harmless, as did that in the Brolin and Drake cases.

The judgment granting a new trial is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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


text:
    Walter F. MILLER et al., Plaintiffs-Respondents, v. KANSAS CITY, Missouri, Defendant-Appellant, King Louie Bowl, Inc., Intervenor-Appellant.
    No. 23486.
    Kansas City Court of Appeals, Missouri.
    June 4, 1962.
    Tucker, Chamo, Willens & Jouras, Kansas City, for appellant.
    Clem W. Fairchild, Thomas J. Daly, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for respondents.
   SPERRY, Commissioner.

This suit was instituted by owners of residential property located near the intersection of Troost with 79th Street and 79th Street Terrace, in Kansas City, Missouri. Plaintiffs prayed that an ordinance which rezoned certain property, near those intersections, from residential to commercial usage, be declared invalid and that defendant be enjoined from issuing a building permit to King Louie Bowl, Inc., the owner of the property so rezoned. The city of Kansas City, Missouri, will be referred to as defendant, and King Louie Bowl, Inc., will be referred to as intervenor. From a decree granting plaintiffs the relief prayed, defendant and intervenor appeal.

In 1947 this property was annexed to the city and was zoned in accordance with a comprehensive plan then in effect in the area along Troost which was, at that time, a part of the city. A strip 150 feet wide, east and west of Troost, was zoned for commercial purposes and the areas beyond were zoned for residences. Until 1955, the only commercial improvement on the west side of Troost, between 79th and 79th Terrace, was a relatively small building at 79th Terrace, used as a garage. The remainder of the commercial strip, 200 feet wide from east to west, and extending from 79th Street Terrace to 79th Street was also unimproved, except for a plot upon which was a residence, facing 50 feet on 79th, and running south 106 feet. At that time intervenor, who was the owner of the commercially zoned strip lying south of 79th for a distance of 312 feet, constructed a building on the south portion of it, which houses 24 bowling lanes, a restaurant and a bar. It also acquired and procured the rezoning (with restrictions) from residential to commercial, of a strip lying west of the commercial zone, improved a portion of it as a parking lot and has been so using it since then. It provides facilities for parking 145 cars. Intervenor’s total investment is $700,000.00.

Intervenor now seeks authority to construct an addition to its building, on the north, to provide for 20 additional bowling lanes. It owns the remainder of the plot of ground mentioned and seeks its rezoning to commercial purposes, and authorization to improve and use it for parking cars in connection with its business. The total cost of this improvement, including the building, will be $225,000.00. The lot, when completed, will accommodate 156 cars. The ordinance was referred to the City Plans Commission where evidence was heard and it was recommended it be disapproved; but the council enacted the ordinance rezoning the property, over plaintiffs’ protest. Inter-venor proceeded to grade the property, removing some trees and plantings along the outer edges of the parking lot, as formerly constructed, and gravelled the newly added area. This suit was filed and nothing further has been done.

The area of the parking lot, as it has existed, is paved with asphalt and was surrounded on the south, west, and north by a louvered board fence forty inches high, and also, on the west and north by plantings. It is required, and planned, that the south, west, and north sides of the lot, if the addition is authorized, will be surrounded with a 40 inch board fence and with trees and shrubbery, but it will take five years or more before the plantings are fully effective. There was testimony from qualified planners and architects that such screening would, eventually, effectively screen the lot from the view of residents of the area and greatly reduce the effect of noise and lights emanating therefrom.

Plaintiffs offered the testimony of a number of witnesses. Mr. Monroe, qualified in the fields of architecture and zoning, testified to the effect that an ordinance extending a business district into a residential area, constituted “spot” zoning; that the area west of Troost on 79th and 79th Terrace was gradually developing as previously zoned; that this rezoning does not tend to protect or preserve the residential property of the area; that the addition of about 50% more bowling lanes would bring more traffic to the area; that he saw beer cans and bottles lying between the parking lot and 79th Street; that the amendment to the zoning ordinance will bring no benefit to the public generally.

Mrs. Murray lived at 918 E. 79th Terrace, in a house to the west of and adjoining the new part of the parking lot. She stated that lights from the lot (or from cars in the lot) shine into her windows; that intervenor removes garbage at 2:00 a. m., to her annoyance; that conditions are worse since the lot was enlarged; that there are many children in the neighborhood who will be endangered by additional traffic on 79th Terrace, which is narrow, uncurbed, and in poor repair.

Mrs. Scanlon, a realtor, had appraised the dwelling house at 916 E. 79th Terrace in 1959, prior to extension of the parking lot, at $12750.00; that, afterward, F.H.A. appraised it at $10,000.00, for which sum it was sold. She believed the extension of the parking lot depreciated the value of the property in the area.

Mrs. Bader had lived across the street, south from the extension of the lot, for 25 years. She stated that, prior to the extension, she was 300 feet from the lot but that she will be 100 feet from the extension; that traffic on 79th Terrace has increased since the lot was extended, and she saw broken bottles and trash on the Murray property; that many children travel on the street to and from Troost, in daytime and in the evening; that extension of the lot will be detrimental to the value and usage of her property.

Mrs. Finkel bought and owns a duplex on 79th Street. She stated that since the shrubbery was removed along the border of the original parking lot, noise has increased; that her family is disturbed by noises at night caused by garbage trucks and by other noises and lights from cars leaving late at night; that her property has depreciated in value some $5000.00 because of changes made in the lot.

Mr. Vogl stated that he formerly owned 916 E. 79th Terrace; that since the extension was made he has picked up beer bottles and cans from the front yard; that there is more noise since the trees in the new section were removed; that there is more traffic; and that property has depreciated in value because of the extension.

Mrs. Giordano, who lives at 917 E. 79th Terrace, across the street from the lot, stated that she is annoyed by noise from trash removal at 1:30 a. m., by motors and horns, and by patrons shouting and screaming; that cars are always in the lot and that they drive across adjoining property to enter the parking lot.

Mr. Saurbier purchased a duplex on 79th adjoining the parking lot, after intervenor’s building and lot were constructed. He stated that the used part of the parking lot was then 25 or 30 feet away from his property and was screened, but that the screening has been removed on the east and south of his lot; that he has lost tenants and income as a result of intervenor’s actions; and that his property has depreciated in value.

Mr. Massey, secretary of City Plans Commission and Board of Zoning Adjustment, had been employed in zoning work for 15 years. He testified to the effect that the original master zoning plan, including Troost Avenue, was adopted in 1923; that, in 1946, the area here involved was zoned by amendment to the master plan, in accordance with its provisions; and that it became effective January 1, 1947.

Mr. Falin, Director of Traffic for Kansas City, stated that, prior to 1959, there were complaints of traffic congestion on Troost in this area; that the trouble was caused by access and egress to the parking lot both being on Troost, side by side; that this caused all of the trouble; that when a driveway was added to the lot, on 79th Street, the trouble ceased; that he has never had a complaint of congestion on 79th; that if traffic from the lot were directed eastward on 79th and 79th Terrace, and if ingress was confined to Troost, it would not create any traffic problem on any of those streets; that the parking lot and traffic attracted by it, tends to lower the safety of residents of the area; that the zoning change made by this ordinance is not “spot zoning”, which is a “coined phrase difficult to define with exactitude”.

It will be noted that much of plaintiffs’ testimony revolved about conditions as they now exist, before the proposed expansion of intervenor’s facilities has been made. That is true of noises from trash haulers, motors, the shouting and screaming of patrons, and the annoyances caused by lights. Such depreciating effect on property as may be due to conditions now existing, because of prior rezoning and construction, is not material in considering the effect of enlarging the bowling and parking facilities, except in so far as it may indicate that such conditions will be aggravated by the improvements contemplated. Furthermore, the evidence is that such objectionable conditions as may have existed have been accentuated by the removal of fencing and plantings on the north and west side of the old lot, together with several trees formerly growing in the new area which will be included in the parking lot as expanded. The rezoning and the granting of the building permit is conditioned on fencing and screening the entire area.

Defendants offered the testimony of several witnesses. Mr. Sixta, an architect, stated that the grade of 79th Terrace is 30 inches higher than the lower portion of the parking lot.

Mr. Stern, realtor and appraiser with 30 years of experience, stated that he was familiar with property on the west side of Troost Avenue, in this area; that 79th Street was occupied by duplexes built during the past few years; that on 79th Terrace, west of Troost, the houses are small and are approximately 35 years old; that the street is of asphalt, old and worn, no sidewalks or curbing; that the property sought to be rezoned is best suited to be used for parking purposes; that it is not suitable for residences because it is economically unsound to build new houses in an area occupied by old housing of the character existing there; that business properties on Troost, south of intervenor’s property, are dilapidated and conditions are not likely to greatly improve; that residential development is not only hindered by the old housing in the area, but by the commercial area on Troost; that, since the duplexes on 79th were built or purchased after construction of intervenor’s property, their value would not be depreciated by expansion of intervenor’s facilities; that improvement of the vacant property with a hard surfaced parking lot, properly fenced and screened by plantings, would enhance the value of other property on 79th Terrace, in that area; that much of the annoyance from lights and noise would be eliminated by fencing and screening, and that the lot would also be largely hidden by the growing trees and shrubbery, so that the view from the residences would be better than it was before the improvement was made.

Mr. Lerner, a principal stockholder and officer of intervenor, stated that when the property was acquired in 1955 it was a dumping ground for trash, cans, bottles, etc.; that the new duplexes on 79th Street were built after intervenor had constructed its building and parking lot; that south of 79th Terrace, on the west side of Troost, there were grocery stores, taverns, and shops; that the buildings were “junky”; that there has been no improvement since except the construction of a grocery store at the intersection; that about 30% of the bowling is done by young people, by church leagues, and by P.T.A.; that there has never been a complaint by the city or police department concerning the operation of the business; that the entire lot will be surrounded by a louvered fence and plantings of shrubs and trees so as to give effective year around screening from surrounding property; that traffic will enter from Troost and exit on 79th and 79th Terrace, from which points it will be directed eastward; that lighting will be deflected from the surrounding area.

Mr. Bush, senior partner of Hare and Hare, city planners and landscape architects with 43 years of experience, also experienced in traffic studies, testified on behalf of intervenor. He stated that he had studied the area; that the trend all over the country now is to get away from strip zoning, to develop shopping centers, to cut back business districts further than a narrow strip, in order to provide parking; that conditions south of 79th on Troost present a typical example of development usually found in strip, or narrow business zoning; that it is marginal in character because of lack of space for sufficient parking; that the residences on 79th are very attractive but that the area on 79th Terrace south and west of this lot, is a poor residential area; that the residences would be improved by construction of the lot as proposed, with proper screening; that the lot itself is not suitable for residential purposes and probably will never be so used; that traffic moving out of the lot will naturally move to Troost; that property values on E. 79th Terrace, in this area, will not be depreciated by this rezoning and improvement but will be benefited.

From the above testimony it appears that the residential property on E. 79th, just off of Troost, could not have been depreciated by intervenor’s construction made in 1955, for the duplexes were built after the rezoning and construction had been done. Nor can those owners complain of the building extension contemplated herein, because it will be done on property which has always been commercially zoned. If any property is damaged by the proposed improvement it must be because of increased traffic brought about by additional customers of intervenor and by extending the lot close to those properties on 79th Terrace. The capacity of the lot, when extended, will only be eleven vehicles more than it is at this time; and the bulk of the addition will be further from property on 79th than is the present lot. However, more people will use intervenor’s bowling facilities and the lot will be materially closer to the 79th Terrace homes than is the present lot.

As to the properties on 79th Terrace, judging from their age as shown in evidence, the houses were built before the area was annexed to the city and zoned, in 1947. They were not built by persons relying on a continuance of any zoning plan then in existence, hence there can be no claim by the owners in the nature of estoppel from reliance on an established legal condition.

The ordinance here involved is amendatory of the general ordinance in effect since 1947, which, itself, was an extension of the general zoning ordinance adopted in 1923. It is required that it have the same careful consideration that was given to the enactment of the original ordinance; but the act of the council in rezoning this property is presumed to be valid and those challenging its validity have the burden of proving that charge. Unless it appears to be clearly arbitrary and unreasonable the court cannot substitute its opinion for that of the council or, if the question is reasonably doubtful or fairly debatable, the court cannot do so. Allega v. Associated Theatres, Mo.App., 295 S.W.2d 849, 856.

In Allega v. Associated Theatres, supra, 1. c. 850, this court said that zoning regulations may be enacted for the purpose of promoting health, safety, morals, or the general welfare of the community; and that such regulations must have some reference or relation and conformance to a comprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers, promote health and general welfare, provide adequate transportation, water, sewerage, schools and parks; that they should be made with reasonable consideration to the character of the district and its particular suitability for particular uses, and with a view to conserving the value of building and encouraging the most appropriate use of the land throughout the municipality.

The court found that the ordinance was passed without reasonable consideration for conserving the value of residences in the neighborhood and will depreciate the value thereof. There was testimony to that effect but there was testimony from well qualified witnesses to the contrary, that the improvement sought to be made would benefit the residential properties when completed, fenced and screened. But the fact that financial loss to some may be occasioned by a zoning- ordinance is not controlling. Flora Realty and Investment Company v. City of LaDue, 362 Mo. 1025, 246 S.W.2d 771, 779.

The court found that the effect of the ordinance will be to substantially and unreasonably endanger the safety of children because of a substantial increase in the volume of traffic and the attendant disturbance during hours of sleep. There was testimony from Mr. Falin to the effect that there would be no congestion of traffic as a result of this proposed improvement. There is a difference between volume and congestion. Vestry of St. Mark’s, etc. v. Doub, 219 Md. 387, 149 A.2d 779, 783. There is but little substantial evidence tending to support the conclusion that increased volume will endanger children.

The court also found that there has been no change in the character or use of the land in the area since the passage of the original zoning ordinance (1946); that commercial zoning has not been extended at any other point in the area. That is the gist of the testimony, except for the establishment of intervenor’s improvements and the attendant rezoning, in 1955. However, there was substantial and convincing testimony to the effect that the area from 79th south, including the block west of Troost on 79th Terrace, was stagnated because of improper and detrimental strip “zoning” on Troost made, originally, in 1923, and extended southward from 79th in 1946. The fact that the property now owned by inter-venor was a dumping ground until 1955 is some evidence of stagnation of the area in view of the phenomenal growth of Kansas City elsewhere. The evidence was that the commercial property on Troost, south of in-tervenor’s, is “junky” and will likely remain so, and that the plot here involved will not likely be improved with housing because it is unsuitable on account of its proximity to the older housing across the street, and because of its proximity to Troost, (including an unsightly garage, surrounded in the rear by old automobiles and trash, located on the south side of 79th Terrace at Troost) and because the lot slopes from north to south, and to the center from west to east, so that the lower part, fronting 79th Terrace, is 30 inches lower than the grade level of that street.

The court intimated that the council, once having established a comprehensive zoning plan, is not authorized to change property classifications within a district except with reference to health, safety, morals and general welfare, and in accordance with the comprehensive plan. This ordinance extends an existing business district; it does not create a new one. It may be said to be in furtherance of the comprehensive plan. Suffield Heights Corporation v. Town Planning Comm. of Town of Manchester, 144 Conn. 425, 133 A.2d 612, 615, Wade v. Town Plan, etc., Town of Hamden, 145 Conn. 592, 145 A.2d 597, 599; Pumo v. Borough of Norristown, 404 Pa. 475, 172 A.2d 828, 830. This case is unlike that of Allega v. Associated Theatres, supra, on the facts. Nor is it always necessary that a change in conditions be shown in order to justify a change in zoning. Cianciarulo v. Tarro, (R.I.) 168 A.2d 719, 725. Here, the area is stagnated because of what is now regarded as unwise strip zoning. Conditions would seem to justify a re-examination of the situation and a change in zoning by extending a business district so as to permit land to be used in connection with an established business, and for purposes for which it is peculiarly adapted, if the council believed it to be for the general welfare.

The court found that the sole purpose of the ordinance was to permit intervenor to expand its business without regard to statutory requirements concerning zoning. There is evidence to that effect but there is substantial evidence in the record tending to prove that this amendment will permit an improvement that will benefit the property values of the area; that it will permit a proper use of land unusable in its present classification; that it will add substantially to the taxable value of Kansas City property, probably to a greater extent than if the plot were used for housing, considering the character of housing now existing on 79th Street Terrace and the evidence tending to prove that this plot is unfit for such use and probably will not be used therefor. The council could have believed its action to be justified on the grounds that it was in the interest of the public even if intervenor was also benefited thereby. State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934, 938; Sec. 89.050 RSMo 1959, V.A.M.S. See Colt v. Bernard, (Mo.App.) 279 S.W.2d 527, 530.

The court found that plaintiffs have been annoyed by noise, lights and disturbances. Such annoyance occurred under present conditions, after actual extension of the lot, after fencing and shrubbery was removed but before its replacement. There is evidence from which it might be . found that when the improvement is completed, as planned, such annoyance will be .greatly abated. There was also testimony as to the present unsightliness of the lot, largely due to lack of screening; but mere aesthetic considerations, in themselves, have never been held to bear such relationship to public welfare as to sustain the restrictions of zoning ordinances. Women’s Kansas City St. Andrew Society v. Kansas City, 8 Cir., 58 F.2d 593, 603.

The council has general authority to rezone property from one classification to another. Sec. 89.050 RSMo 1959, V. A.M.S. In order for the council to legally exercise that power it is not necessary that it strictly and rigorously comply with every directory provision of the statutes. Cianciarulo v. Tarro, supra, 168 A.2d 724. “Spot zoning” is frowned upon; but expert witnesses did not agree that this is a spot zoning case. In any event, whether an amendment will be held void depends upon the circumstances of each case. State ex rel. Christopher v. Matthews, supra. Under the evidence in this record it cannot be said that the council clearly acted arbitrarily, capriciously, or unlawfully, or that it did so beyond reasonable doubt.

The judgment is reversed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.