author: PER CURIAM.

text:
    Doyce Ray WADDELL et al., Relators, v. Hon. Sterling WILLIAMS, District Judge, et al., Respondents.
    No. 3516.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 30, 1959.
    Rehearing Denied Nov. 27, 1959.
    Frank C. Ashby, Garland Casebier, Midland, for relators.
    Pat Beene, Ivanhoe, M. J. Kirwan, Jr., Midland, for respondents.
   PER CURIAM.

The Waddells leased their land to Cox and Miller for grazing and cultivation, with provisions that the grass land should be used for grazing only and that the cultivated land was to be tilled in a good farmer-like manner. Water was impounded on the leased land in large pools. There was no express provision relative to water. During the term of the lease, Waddells’ lessees sold water from the Waddell land to Empire Drilling Company and Milhoan Drilling Company for $6,000.00. By consolidated suits the Waddells sued said companies for the value of said water. Said companies impleaded Cox and Miller. In a trial to the court, the Waddells called said lessees as witnesses. They testified they sold water to said drilling companies from the Waddells’ land and that it was of the value of $6,000.00. Said lessees offered no defense to plaintiffs’ cause of action other than that under the terms of their lease they had the right to sell said water. The testimony on behalf of said drilling companies was not contradictory to that of the lessees. At the conclusion of the trial on June 22nd, the Waddells urged the court to render judgment for them on said undisputed evidence. The court asked for briefs, which were furnished by the Wad-dells and said drilling companies on June 27th. On August 4th the Waddells inquired of the trial judge what disposition would be made of the case. On August 6th the judge notified all parties that he did not think that “under the facts * * * either party is entitled to a judgment. I am, therefore, declaring a mis-trial and setting the case for another trial on September 15, next.” No motion for a mistrial was filed. After receipt of said letter, the Waddells prepared and presented to the judge a formal motion for judgment in which they alleged that the evidence was undisputed and the Waddells were entitled as a matter of law to judgment against Empire Drilling Company for $2,000.00 and Milhoan Drilling Company for $4,000.00, for which they prayed. This motion was filed with the district clerk and a copy furnished to the district judge with the request that he rule thereon, which he has not expressly done.

The Waddells have filed in this court a verified petition for mandamus asserting the facts as heretofore stated and that there was no undisposed of proceeding before the court and that the only thing that remained to be done by the trial judge at the close of the evidence was to apply the law to the undisputed testimony of Miller and Cox; that, under the terms of said lease, Miller and Cox could only use the water for the purposes for which the land was leased and they had no authority to sell the water, which belonged to the Wad-dells; that the trial judge refused to render judgment by applying the law to said undisputed facts; that they have no adequate remedy and, under the law and undisputed evidence, they are entitled to judgment against Empire Drilling Company and Milhoan Drilling Company for $2,000.00 and $4,000.00, respectively. Respondents have answered but they have not denied Waddells’ material and controlling verified allegations of facts. The judge filed an answer in which he stated that, in his opinion, a fair and just judgment could not be rendered on the record and that a mistrial was declared on August 6th and the cause re-set for trial on September 15th.

Under the undisputed facts shown by the relators’ petition the only question to be decided at the end of the trial was whether the lease gave Waddells’ lessees the right to sell the water. They had no such right. Under the law and undisputed evidence the Waddells were entitled to a judgment against Empire Drilling Company for $2,000.00 and against Milhoan Drilling Company for $4,000.00. While most of the decisions applicable to the point presented are in cases where a jury verdict was returned and received disposing of all facts essential to a judgment, petitioners certainly have no less right in a trial to the court, where the undisputed facts and the law applicable thereto showed relators were entitled to the judgment sought. We entertain no doubt as to the proper intentions of the trial judge. However, we think there was an erroneous conclusion of law when he refused to enter judgment on the undisputed evidence set out in relators’ petition. The only reason given by the judge for declaring a mistrial was that heretofore stated. The same reason is reiterated in the judge’s reply to relators’ petition. Presumably, no other reason existed. McGregor v. Allen, Tex.Civ.App., 195 S.W.2d 945, 947. No motion for a mistrial was ever filed.

In Anderson v. Blalock et al., Tex.Civ. App., 272 S.W.2d 741, a jury returned a verdict for the plaintiff. The court had pending plaintiff’s motion for judgment on the verdict and defendants’ motion for judgment non obstante veredicto. It was held that, in the absence of a motion for mistrial, it was error for the court to grant a mistrial and that it was the court’s duty to proceed to judgment by granting one of said motions. In Gulf Colorado & Santa Fe Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296, in an opinion approved by the Supreme Court, the court refused to render judgment for the defendant upon a jury verdict for defendant because of his belief that an irreconcilable conflict existed in the verdict. The court held that since the trial judge had set the verdict aside solely because of his belief that such a conflict existed and, since he was wrong as a matter of law in that conclusion, he should be required to enter judgment on said verdict. It held that no discretionary power was vested in the court to set the verdict aside; that the entry of a judgment upon said verdict involved no judicial or discretionary power, but that it was simply a ministerial act which the trial court should be required to perform by mandamus. In Southland-Greyhound Lines v. Richardson, 126 Tex. 118, 86 S.W.2d 731, 735, our Supreme Court said:

“Judgment should be rendered for the defendant, because the verdict found acts of negligence on the part of plaintiff and that such acts, concurring or co-operating with negligent acts of the defendant, were proximate causes of the injuries. The trial court’s action in declaring a mistrial was in effect a refusal to proceed to judgment.”

In Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875, in an opinion approved by the Supreme Court, it was held, in an action to foreclose a vendor’s lien, that when a jury found all the facts necessary to support defendant’s plea of limitation the court improperly and arbitrarily refused to enter judgment on the verdict on the ground of a conflict with a finding that plaintiff had a valid and subsisting lien, since the latter finding was merely an erroneous conclusion of law. In McGregor v. Allen, Tex. Civ.App., 195 S.W.2d 945, it was held that a statement, in an order declaring a mis--trial, of the reason therefor implied the absence of any other. In Ellzey v. Allen, Tex.Civ.App., 172 S.W.2d 703, it was held that when the record entitled defendant to judgment, the rendition of which was a ministerial act not involving exercise of discretion, a mandamus would lie to compel setting aside an order for a mistrial and rendition of judgment. See also W. T. Rawleigh Company v. Sims, Tex.Civ. App., 108 S.W.2d 332; Missouri-Kansas-Texas Ry. Co. v. Thomas, Tex.Civ.App., 282 S.W.2d 912, 914; Woodmen of the World Life Ins. Co. v. Davenport, Tex.Civ.App., 159 S.W.2d 913; City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308, 314; Simpson v. Charity Benevolent Ass’n, 137 Tex. 215, 152 S.W.2d 1093, 1095.

We conclude that under the undisputed facts, petitioners were as a matter-of law entitled to have a final judgment rendered. The petition is granted. We assume the trial court will promptly comply with this decision. The clerk will, therefore, not issue the Writ unless the court shall fail to do so.


source: Caselaw Access Project

author: ' WILSON, Justice.

license: Public Domain

text:
    PELHAM MANUFACTURING COMPANY et al., Appellants, v. Harold C. RIDLEHUBER, Appellee.
    No. 3977.
    Court of Civil Appeals of Texas. Waco.
    April 5, 1962.
    Rehearing Denied April 26, 1962.

      Rumph, Ivy & Karpenko, Ft. Worth, for appellants.
    Hudson, Keltner, Jordan & Cunningham, Ft. Worth, for appellee.
   ' WILSON, Justice.

Plaintiff recovered judgment of $2000 for personal injuries and $2000 for medical and hospital bills incurred, based on jury findings. Defendants’ “motion for judgment non obstante veredicto” (which was actually a motion to disregard the finding on “reasonable and necessary” medical and hospital expense on the ground no evidence of reasonableness was introduced) was overruled. Defendant, having filed no motion for new trial, appeals.

In the absence of motion for new trial, we are not authorized to consider defendants’ points that the evidence was insufficient to support the finding, and that the court erred in submitting the issue on expenses over objection.

Admittedly there is no direct evidence in the record as to whether the amounts charged for medical and hospital expenses were reasonable. “It is now well settled that proof of the amounts charged or paid does not raise an issue of reasonableness, and recovery of such expenses will be denied in the absence of evidence showing that the charges are reasonable”. Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 383.

Appellant presents a point assigning error to the overruling of its motion to disregard this finding on expenses because it has no support in the evidence. Appellee urges we also are without jurisdiction to pass on this point, absent an assignment in a motion for new trial, under Rule 324, Texas Rules of Civil Procedure. The argument is that the provision in that Rule that a motion for new trial shall not be prerequisite to appeal where “a judgment is rendered, or denied, non obstante veredicto or notwithstanding the finding of the jury on one or more special issues” is confined to instances where an instructed verdict as to the entire case would have been proper, and the motion “goes to the whole verdict.” It is urged that the language, “notwithstanding the finding of the jury on one or more special issues” is not distinct or separate from, and adds nothing to the words, “non obstante veredicto”; but merely amplifies the latter. We cannot agree with the contention.

Before 1941 no exception to the requirement of a motion for new trial was available to an appellant in cases involving motions for judgment non obstante vere-dicto. In 1941 Rule 324 was amended to provide that an assignment in a motion for new trial was not prerequisite to complaint on appeal of action “in rendering or refusing to render judgment non obstante vere-dicto”. In 1955 a further amendment revised the Rule and gave the provision in question its present form, adding the words, “or notwithstanding the finding of the jury on one or more special issues”. When such an amendment is adopted it is ordinarily presumed a change was intended in existing law. American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715, 719. Before the 1955 revision the Rule was construed as authorizing complaint of overruling of motion for judgment non obstante veredicto without a motion for new trial. Miller v. Miller, Tex.Civ.App.1954, 274 S.W.2d 762, 764, writ ref. After it reached its present form, the Supreme Court stated the purpose of the language in question'as it related to one whose motion for judgment non obstante veredicto “is denied” was to authorize complaint of such action without a motion for new trial. Wagner v. Foster, 1960, 161 Tex. 333, 341 S.W.2d 887. The Court did not there have under consideration a situation involving the additional provision, where a motion for judgment “notwithstanding the finding” on one or more issues “is denied”, but in our opinion the identical construction of the Rule must be applied to the added words.

Rule 301 contemplates two types of motions: (1) for judgment non obstante veredicto, “if a directed verdict would have been proper”; and (2) for disregard of any jury finding “that has no support in the evidence”. The former is “an entirely different thing” from the latter. Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 972. The change in Rule 324 recognized the distinction, in our opinion, and authorized complaint of denial of the motion to disregard the jury finding without motion for new trial being prerequisite. See City of Lamesa v. Hutchinson, Tex.Civ.App., 336 S.W.2d 861, 865, writ ref. n. r. e.; Texas & N. O. R. R. Co. v. Flowers, Tex. Civ.App., 336 S.W.2d 907, 911, writ ref. n. r. e.; Texas Employers’ Ins. Ass’n v. Mahlow, Tex.Civ.App., 304 S.W.2d 161, 164; Great American Indem. Co. v. Meyer, Tex.Civ.App., 285 S.W.2d 276, 279; Bellmead State Bank v. Anderson, Tex.Civ. App., 293 S.W.2d 834; Wheeler v. Thomas, Tex.Civ.App., 328 S.W.2d 891, no writs.

The problem of disposition has, we think, been answered by the Supreme Court. It has said that there is no substantial difference between the duties imposed by Rule 434 and by Rule 505. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 798; London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619, 621; and the fact “that a peremptory instruction would have been justified” does not preclude remand. Hicks v. Matthews, 153 Tex. 177, 266 S.W. 2d 846, 850; Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376, 379. Remand, rather than rendition, has been consistent where the ends of justice are subserved, and deficiency of proof is obviously the result of a case not having been fully developed. Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 613; Hall v. O. C. Whitaker Co., 143 Tex. 397, 185 S.W.2d 720, 724.

That portion of the judgment awarding $2000 for medical and hospital expenses is severed, reversed and remanded. The remainder of the judgment is affirmed. Appellants’ motion to dismiss is overruled. Costs on appeal are taxed equally against appellant and appellee.


author: SPERRY, Commissioner.

text:
    Frank J. MANNING, Plaintiff-Respondent, v. MANOR BAKING COMPANY and Royal Indemnity Company, Defendants-Appellants.
    No. 23386.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1962.
    Harold J. Maddox, Davis, Thomson, VanDyke, Fairchild & Walsh, Kansas City, for appellants.
    David T. Cavanaugh, Kansas City, for respondent.
   SPERRY, Commissioner.

This is an appeal from the judgment of the Circuit Court affirming an award of compensation made by the Industrial Commission in favor of Frank Manning, hereafter referred to as plaintiff, against Manor Baking Company, hereafter referred to as defendant, in the amount of $2928.84. Royal Indemnity Company, the other appellant herein, is defendant’s insurer.

Defendant contends that the Commission acted in excess of its jurisdiction in making the award for the following reasons:

1. Failure to make specific findings of fact as requested;
2. There was not sufficient competent evidence in the record to warrant the making of the award, because:
A. Plaintiff did not give defendant notice of the injury as required by Section 287.420, R.S.Mo. 1959, V.A.M.S.
B. The award is contrary to the undisputed facts in evidence.

Six days were consumed in the hearing before the referee. There are three volumes of the transcript consisting of more than 660 pages. To dispose of points presented on this appeal it is required that the facts in evidence be reviewed and stated; but, obviously, it will be necessary to state the facts necessary to a decision as concisely as may be.

Plaintiff became a route salesman for Manor in June, 1951. Pie became a route supervisor in 1956. There was evidence to the effect that, in 1953, he sustained an injury to his back while working for defendant, but that it did not seriously incapacitate him; that, on Labor Day, (Sept.) 1957, he suffered a “catch” in his back when he arose from the breakfast table at his home, and that he had medical treatments for his back condition until Sept. 18, when he was released by Dr. Boring, a Chiropractor, as able to work.

Plaintiff offered the testimony of several witnesses to the effect that, prior to Oct. 22, 1957, he worked steadily at his regular employment and engaged in various sports such as horseback riding, croquet, and badminton and, in general, led a normal life so far as concerned work habits and entertainment. Pie also offered evidence tending to prove that after Oct. 22, 1957, he was unable to engage in any of the above sports- and unable to perform any work for defendant except light work; and that he received treatment for his back condition from various doctors including an operation for herniated disk, and fusion.

He testified to the effect that, on the morning of Oct. 22, 1957, he was a supervisor of several salesman’s routes; that when, for any reason, a salesman could not take care of his route, plaintiff took the truck and delivered bakery products from door to door; that he carried the products in a metal box which, when loaded, weighed from 35 to 40 pounds; that, that morning, he called at the home of a customer on Holly Street, in Kansas City, carrying the box up a flight of several steps to the door; that no one was home and, when he started down the steps, his feet slipped and he fell on the lower part of his back on the top step and slid and bumped from there to the bottom; that his right leg doubled under him; that he suffered painful and disabling injuries to his lower back and right leg; that pains emanated in the back and ran through his legs into his feet; that he eventually pushed the box, on the ground, across the street to a house where he was invited inside, given coffee and aspirin, permitted to lie on the couch and use the telephone ; that he called defendant’s office and reported the accident and asked for someone to take over the route; that a Mr. Bigler, his supervisor, arrived later with a young man but asked plaintiff to ride in the truck and instruct the new man on the route, which he did; that, when he reported in that evening, he reported the accident to Blanche Reeves who filled out a form; that he was instructed to report to Dr. Casebolt, defendant’s physician, for treatment; that he reported to Dr. Casebolt, who treated him.

Defendant’s records, in evidence, disclosed that Blanche Reeves made out a report on a form, dated Oct. 23, 1957, of an accident reported on “Oct. 21” but that no further report thereof was made until after this claim was filed, several months later. There was also evidence to the effect that plaintiff was treated for injuries received in a fall down a flight of steps while on a route for defendant on Oct. 22, 1957, by Dr. Casebolt whose charges therefore were paid by defendant.

A great deal of medical evidence was •offered touching the extent of plaintiff’s injuries. There was substantial medical evidence tending to prove that plaintiff, at the time of the hearing before the referee, was suffering from a disability of the body as a whole, of from 20% to 50%; that his previous disability had been aggravated by injuries received on Oct. 22, 1957.

Defendant offered testimony and documentary evidence tending to show that plaintiff suffered no injuries on Oct. 22, 1957; that whatever disability he suffered was due to an earlier injury and to the “catch” in his back, suffered at his home, on Labor Day, Sept. 1957; and tending to show that plaintiff did not have an accident on the route as he claimed.

Defendant, in its “answer to claim for compensation” denied “each and every allegation of said claim”. It was defendant’s position at the hearing that plaintiff had no accident on Oct. 22, 1957, and that any disability that he might have was due to non-compensable injuries which he had previously received.

Therefore, the chief issue between the parties at the time of the hearing was whether plaintiff suffered an accident on Oct. 22, 1957, as alleged by him, and the extent of injuries he suffered thereby. There was substantial evidence tending to prove that plaintiff fell while in the performance of his duties in the employ of defendant. In Francis v. Sam Miller Motors (Mo.), 282 S.W.2d 5, 12, the Court said:

“The weight and value of the testimony of the witnesses and the weight and value to be given to the statements, if made, rested with the triers of the facts. * ⅜ ⅜. The credibility, weight and value of this oral testimony was for the referee and the Commission and, as stated, ‘the reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony.’ * *

In Lake v. Midwest Packing Company (Mo.), 301 S.W.2d 834, 835, the Court said:

“We review the whole record, .including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission; and by competent and substantial evidence, and if the Commission’s findings are supported not contrary to the overwhelming weight of the evidence, the award is to be sustained.”

There was substantial evidence from which the Commission could have found, as it did, that plaintiff had an accident arising out of and in the course of his employment, and that he was injured thereby. It was for the Commission to evaluate the conflicting evidence and arrive at a decision as to the facts. Williams v. International Shoe Company (Mo. App.), 213 S.W.2d 657, 662. We may not substitute our judgment on the evidence for that of the Commission, but we can only determine whether it could have reasonably made its findings and reached its result upon consideration of all of the evidence before it. We can only set aside its decision when clearly contrary to the overwhelming weight of the evidence. Thacker et al. v. Massman Construction Company (Mo.), 247 S.W.2d 623, 627. Under the evidence in this case the Commission could have found the facts and made the award that it made and we may not set it aside.

However, defendant says the Commission acted in excess of its jurisdiction in that it failed to make specific findings of fact “as requested by the appellants”. Defendant did not request the Commission to make specific findings of fact. It made such a request of the referee but did not so request of the Commission, or call that matter to its attention. It is the award of the Commission that we review, not that of the referee. Barron v. Mississippi Lime Company of Missouri (Mo.App.), 285 S.W.2d 46, 49.

The Commission found the following facts, among others:

“That plaintiff suffered an accident on Oct. 22, 1957, in the course of his employment, and was injured thereby.
“That solely as a result of said accident he sustained 20% permanent partial disability of the body as a whole referable to aggravation of a pre-exist-ing low-back condition, for which he is entitled to eighty weeks of compensation at the rate of $37.50 per week.
“We further find that the employee was temporarily totally disabled from January 25, 1958 to Oct. 6, 1958, 36 weeks, and that he is therefore entitled to an additional twenty weeks of compensation at the rate of $37.50 per week as a healing period.
“We further find that the actual employer had actual notice of the injury and was not prejudiced by the failure of the employee to give written notice thereof.”

Those are the constitutive facts necessary for our review of the case. Groce v. Pyle (Mo.App.), 315 S.W.2d 482, 491. No further findings were requested and these and others made by the Commission are sufficient. Cebak v. John Nooter Boiler Works Company (Mo.App.), 258 S.W.2d 262, 265; Evans v. Farmers Mutual Hail Insurance Company, 240 Mo.App. 748, 217 S.W.2d 705, 708-709.

Defendant also contends that plaintiff failed to give written notice of the accident and back injury as required by Section 287.420 R.S.Mo. 1959, V.A.M.S. The statute excuses such failure if the Commission shall find that there was cause therefore, or that employer was not prejudiced thereby. The Commission found that employer received actual notice of the injury and was not prejudiced by the failure of the employee to give written notice thereof. The finding is supported by substantial evidence.

The judgment affirming the award is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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


author: STONE, Judge.

text:
    In the Interest of M-L-J-, a child under 17 years of age.
    No. 7949.
    Springfield Court of Appeals. Missouri.
    April 21, 1962.

      No appearances on appeal for appellant.
   STONE, Judge.

In this statutory proceeding under the Juvenile Act [Secs. 211.011 to 211.431], the mother of M- L- J-, now about fourteen years seven months of age (hereinafter referred to as the child), appeals [Sec. 211.261] from the judgment of the juvenile court, finding that the allegations of the petition theretofore filed by the juvenile officer [Secs. 211.081 and 211.091] were true and that the child was in need of care and treatment [Sec. 211.031(1) ], making the child a ward of the court, and placing her in the custody of her maternal grandmother. Sec. 211.181. (All statutory references are to RSMo 1959, V.A.M.S.) At the hearing in juvenile court, the mother testified in person and was represented by able counsel; but, on appeal, the case has been neither briefed nor argued on behalf of the appealing mother or on behalf of the state. Since a proceeding of this character partakes of the nature of a civil action insofar as appellate procedure and review are concerned [In re C-, Mo.App., 314 S.W. 2d 756, 760(9); In re M-P-S-, Mo.App., 342 S.W.2d 277, 282(6) ], the appeal properly might be dismissed for failure to comply with the rules of civil procedure. See Rules 83.05, 83.06, 83.08 and 83.-09, V.A.M.R.

However, although termination of parental rights was neither sought in this proceeding nor ordered in the judgment assailed by the mother [see Secs. 211.441 to 211.511], the effect of that judgment was to deny to a mother the care and custody of her daughter and thus to cut across a sacred and hallowed relationship, for which our courts, in common with all civilized peoples, have evidenced tender and sensitive regard. State v. Taylor, Mo.App., 323 S.W.2d 534, 537(3). As natural guardians of their minor children, parents have a primary right to custody of such children [State ex rel. White v. Swink, 241 Mo.App. 1048, 256 S.W.2d 825, 829(5) ; Williams v. Williams, 240 Mo.App. 336, 205 S.W.2d 949, 953(1) ], are presumed, in the absence of proof to’ the contrary, to be fit and qualified to exercise that natural privilege [In re Cole, Mo. App., 274 S.W.2d 601, 608(3); Cox v. Carapella, Mo.App., 246 S.W.2d 513, 514(1) ], and, as has been “the settled law from time immemorial” [Bell v. Catholic Charities, Mo.App., 170 S.W.2d 697, 699(1) ], never should be denied their right, by nature and by law, to have such custody unless it is made manifest to the court that, for some strong and cogent reason, they are unfit or incompetent to care for their children or unless the welfare of the children, for some special or extraordinary reason, demands a different disposition. In re Richardet, Mo. App., 280 S.W.2d 466, 471(2); Swan v. Swan, Mo.App., 262 S.W.2d 312, 314(2); Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776(5); Edwards v. Engledorf, Mo. App., 192 S.W.2d 31, 33(2). It follows that whosoever would deny to parents the custody of their minor children must carry the burden of proving the parents’ unfitness. State v. Pogue, Mo.App., 282 S.W.2d 582, 588(9); I- v. B-, Mo.App., 305 S.W. 2d 713, 719(5). In the case at bar, the transcript is on file and no motion to dismiss the appeal has been presented. Conscious of the effect of the judgment and mindful of the concern with which courts should and do scrutinize any attack upon or disruption of the mother-daughter relationship, we have, sua sponte, critically examined and carefully considered the evidence preserved in the transcript.

Family tragedy beset the child at an early age when the marriage of her parents went down the all-too-familiar drain of separation and divorce. By the decree, custody of the child, then two years of age, was granted to the mother. In February 1951 the mother went to St. Louis and obtained steady employment with “internal revenue, civil service.” The child remained with the maternal grandmother in the home town in Southeastern Missouri until 1954, when both of them went to live with the mother. Thereafter, the three generations (i e., grandmother, mother and child) lived together in St. Louis, until the grandmother returned to the home town in January 1960 “to help take care” of her father. In June 1960, after the close of the school year, the child went to the home town and thereafter has lived with the grandmother. This proceeding was instituted when the mother undertook to take the child to St. Louis in September 1960.

At the hearing on the petition filed by the juvenile officer, the mother occupied the unenviable position of defending her parental fitness against charges leveled by the brokenhearted but blunt-spoken grandmother and the disillusioned, distressed, disturbed child. As the grandmother related it, sometime during the interval between 1954 and 1960, the mother “took up” with one S-, identified as a married man with “a wife and three boys” who “drank a whole lot, you couldn’t fill him up.” After learning about the marital status of S-and the trouble which the mother had caused “between him and his wife,” the grandmother told the mother “she couldn’t have nothing to do with him any more (and) the little girl mustn’t ride with him.” Although (so the grandmother said) the mother agreed, the extent of her obedience appears to have been that thereafter the mother did not bring S-into the house while the grandmother lived in St. Lonis but met him “in the alley.” The principals became so enam-oured of this association that morning after morning the mother would pass up breakfast with the grandmother and the child and would “go off and eat breakfast with him” before she went to work.

Turning our attention to the other end of the day, the grandmother said that, after the family group had moved to another location in St. Louis, the mother “never come home I don’t think one time after work and eat supper with us what time I was there.” She might have returned to the apartment one evening each week by eight o’clock, but “the rest of the nights she’d be out, specially Friday night, because she didn’t have to work the next day, stayed out real late that night, and went off on weekend trips, supposed to be going with girl friends, and we didn’t know where she went.” At night, she would “come in smelling like a tavern”— “she had been drinking, you could smell it on her breath, bleary-eyed.” The mother “didn’t do that until she took up with this man.”

The child’s testimony was as devastating as that of the grandmother upon the basic issue of the mother’s fitness. After confirming the grandmother’s statement that she would not tolerate S-- in the apartment while she lived in St. Louis, the child added that “since she (grandmother) moved away he (S-) was there.” In the child’s language, her mother “worked late and she’d come home late, and that man would usually be with her, she’d have liquor on her breath, and usually she wasn’t very mean to me but when she’d come home she’d argue with me and she might hit me or something like that.” When asked how she “got along” with S-, the child said that “we didn’t argue or anything, but he’d come there and he’d get whatever he wanted . . . and he’d tell me when to come in and when to do this, boss me.” Still reporting through the child’s lips, “one time she (the mother) went to get her hair fixed and he (S-) come back home and he ironed her clothes.” The child was not sure “how many nights” S-had stayed in the apartment — “I would go to bed before they would” — but “he has stayed about two nights I know of.” “One time I knew, and I was pretty sure the other time” — “she told me that he stayed, that was the time she got mad at him . . . and she called up his wife.” On another occasion, when the child awoke about 7 A.M. “he was standing — he was talking to her (the mother).” Agreeing on cross-examination that she had been taken “to places like the zoo, movies,” the child explained that “either he’d come and take us or we’d meet him there . . . almost everywhere we went, he’d go along.”

When her counsel inquired whether “this (was) any more than an acquaintanceship, did you ever do anything out of the ordinary with Mr. S-,” the mother quickly agreed “I certainly haven’t.” But, whatever the nature and extent of her relationship with S- might have been, she admitted knowledge that he was married when she began to “see him off and on.” And, although undertaking to justify her initial association with S- on the ground that “he told me he was separated from his wife at that time,” she conceded that “I found out later that they were living together.” Answering the court, the mother first said “I’ve seen him (S-) about once every three or four weeks,” but to the next succeeding question she said “well, average about four or five times a month.” In any event, she and S- frequently had taken the child with them; and, with a note of pride as if thereby to demonstrate the wholesome character of the child’s association with S- (although, as the mother admittedly knew, he had been “in some kind of lawsuit” for “separate maintenance” or “support” of his own children), the mother’s answers came babbling out that she and S-- “take her to the movies, take her roller skating, take her swimming, take her to the park, barbeque, take her fishing”— “we’ve taken her to . . . the Moose Club over in East St. Louis or Wood River . . . we had a fish dinner that night and they had an orchestra.” But, in all of their gadding and going hither and thither, neither the mother nor S-took the child to any church. It was, as the child said, the grandmother who “started me” in Sunday school and church at St. Louis — “she’d go and mom wouldn’t.”

The mother had given S-- a present during the Christmas season preceding the hearing — the grandmother had heard “the price” and thought that the gift was a Polaroid camera but, according to the mother, it was only “a fish skinner.” That there had been no termination of or interruption in the relationship of the mother and S-was demonstrated by the further testimony, developed by the court’s questions, that shortly prior to the hearing S- had brought the mother from St. Louis to the judge’s chambers in Southeastern Missouri and had endeavored to participate in a conference about the child. On that trip both the mother and S-had stayed overnight at a nearby motel but, as the mother explained, “I had Room 17 and he had Room 18.” We should not leave the mother’s testimony without specific reference to her uncertain hut revealing answer, in response to an inquiry as to who would care for the child if the mother took her to St. Louis, that “there’s a lady that lives on the first floor, Mrs. W-, she isn’t working, and I haven’t asked her or anything, but I do think maybe she would take care of her, because she isn’t working.”

The burden of the mother’s plea to the trial court seems to have been that, since she had provided adequate funds for the child’s support, there could be no basis for a charge that the child had not been cared for properly. In this, the myopic mother has lost sight of the verity that all else in her child’s life will become empty, hollow and meaningless unless complemented and crowned by the inculcation of high ideals, the development of good character, and the preservation of decency, morality and virtue. Our society speaking through its elected legislative representatives wisely recognizes in the Juvenile Act [Sec. 211.-031] that a child may need the care, for which provision is made in that Act, not only for neglect or refusal to provide proper financial or material support [Sec. 211.-031, subd. (1) (a) ] but also where the child “is otherwise without proper care, custody or support” [see subd. (1) (b) ] or where, as was charged in the petition of the juvenile officer in the instant proceeding, “(t)he behavior, environment or associations of the child are injurious to his welfare . . .” See subd. (1) (c). On the record before us, we cannot escape the conclusion that to return the child to the mother necessarily would involve a not inconsiderable and wholly unjustified risk that the child might tread the same primrose path and seek the same fleshpots, for it is a timeless truth that “as is the mother, so is her daughter.” Ezekiel 16:44. On the ■other hand, there is no reasonable room for doubt but that the grandmother is laboring with dedication, devotion and diligence to “train up (the) child in the way (she) should go.” Proverbs 22:6. Bitter as the court’s judgment may have been to the mother, her own conduct brought that condemnation upon her. The best interests of the child obviously were served by the judgment and it should be and is affirmed.

RUARK, P. J., and McDOWELL, J., concur.


author: SAMUEL E. SEMPLE, Special Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Corporation, (Plaintiff) Appellant, v. FARMINGTON AUCTION, INC., (Defendant) Respondent.
    No. 30945.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.

      McClintock & Medley, E. L. McClintock, Jr., Flat River, for appellant.
    Roberts & Roberts, J. Richard Roberts, Farmington, for respondent.
   SAMUEL E. SEMPLE, Special Judge.

This is a lawsuit instituted by the plaintiff, Hartford Accident and Indemnity Company, to recover from defendant, Farmington Auction Company, Inc., for additional premiums on two public liability insurance policies issued by plaintiff to defendant. Plaintiff after giving defendant credit for advance premiums paid on said policies and after giving defendant credit for refunds in the total amount of $111.15 on two Workmen’s Compensation policies, claimed defendant owed plaintiff a balance of $640.48. Defendant in its answer admitted that plaintiff issued to defendant the two liability policies but stated that the premiums due on the policies were paid in full and further stated that regardless of the provisions of said insurance policies an agreement was reached with plaintiff’s general agent that the premiums would be based on wages paid employees other than officers and stockholders and that the premiums would not be based upon any wages paid to the officers or stockholders of the defendant. Defendant denied all other allegations in connection with plaintiff’s claim. Defendant also had a counterclaim for $111.15 for refunds due on two Workmen’s Compensation policies issued by plaintiff. The case was tried before a jury and resulted in a verdict for defendant on plaintiff’s petition and for plaintiff on defendant’s counterclaim. Judgment was rendered in accordance with the verdict. Plaintiff’s motion to set aside the judgment for the defendant on plaintiff’s case and enter judgment for plaintiff or in the alternative grant plaintiff a new trial was overruled, and thereafter plaintiff duly perfected its appeal to this Court. Defendant did not appeal from the adverse judgment on its counterclaim.

For convenience the appellant herein will be referred to as plaintiff and the respondent as defendant.

The basic dispute in this case is over the question of whether plaintiff was entitled to include the wages and compensation paid to defendant’s six officers and shareholders as a part of defendant’s total payroll in calculating the earned premiums on the two liability policies issued by plaintiff to defendant.

A summary of the evidence in the case is as follows: Early in February 1959, A. J. Babcock, president of the defendant corporation, while acting for and in behalf of the defendant, sought to purchase from one Ralph Keith of Ironton, Missouri, a local agent of plaintiff, a policy of insurance insuring defendant against claims under the Missouri Workmen’s Compensation law. In making application for the policy, Ralph Keith wrote the state agent of plaintiff as follows:

“Feb. 9, 1959
“Dear Mr. Frauenhoffer:
“ * * * Also, please issue a Workmen’s Compensation policy for tire Farmington Auction Co., Inc., Farm-ington, Missouri, located 2 miles North of Farmington on Highway 67. The estimated annual payroll is $7000.00 being $2600.00 for clerical and $4400.-00 for laborers working with stock. Livestock auctions are held once a week and the following named stockholders are to be excluded from the coverage: A. J. Babcock, Charles F. Sutton, C. L. Furry, E. E. Williams, Silas Dees and Ewell Buxton. The policy to be dated Feb. 7. 1959.
“Yours very truly,
“RALPH KEITH
INSURANCE.”

Plaintiff acting through its state agent thereafter issued and delivered to defendant its policy No. WH-236742 for the period 2/7/59 to 2/7/60 insuring defendant against claims under the Workmen’s Compensation Act and which contained an endorsement exchtding the six officers and stockholders of the defendant from coverage under said policy on the condition that each of said officers and stockholders had filed a rejection of the Missouri Workmen’s Compensation Law. The policy called for an advance premium predicated on the estimated annual payroll of $7,000 as set out in Keith’s letter (which did not include the salaries of the officers and stockholders). The policy provided in substance that this was an estimated premium only and that upon termination of the policy the earned premium would be computed in accordance with the rules, rates, rating plans and premium applicable in accordance with the manuals in use by the company. The endorsement excluding the officers and shareholders of defendant from coverage under the policy resulted in the salaries and compensation paid to them being excluded from the company payroll in calculating the earned premium at the end of the policy period.

On February 12, 1959, Ralph Keith wrote the state agent of plaintiff asking as to what the premium would be for liability insurance for defendant. Plaintiff’s state agent replied to the letter of Ralph Keith setting out the information in a schedule attached to the letter that a public liability policy specifying bodily injury limits of $5,000 per person, and $10,000 per accident would have an advance premium of $136.-04. The schedule attached to the letter reads as follows:

Keith testified that when he received the letter with the attached schedule from plaintiff’s state agent he gave the information to Mr. Babcock. He further testified over plaintiff’s objection in effect that when the company sent him the rate schedule showing an estimated payroll of $7,000 as the basis for the advance premium he thought that the compensation of officers and stockholders of defendant would be excluded from defendant’s payroll in calculating the earned premiums, the same as in the Workmen’s Compensation policy, and told this to Babcock. Babcock also testified over plaintiff’s objection in effect that he thought the compensation of the officers and stockholders was not to be included in the payroll of defendant in computing the earned premium on the liability policy. Keith and Babcock both testified that they knew the advance premium was an estimate based on an estimated payroll of defendant and that the final earned premium would be calculated by audit of the actual payroll of defendant under the provisions of the policy. Keith stated that he did not request plaintiff to exclude the officers and stockholders from this liability policy.

On February 19, 1959, Keith wrote to plaintiff’s state agent as follows:

“Mr. J. M. Frauenhoffer
“Lawton-Byrne-Bruner Ins. Agency Co.
“401 Pine Street
“St. Louis, Missouri
“Re. Farmington Auction Co., Inc.
“Farmington, Missouri
“Dear Mr. Frauenhoffer:
“With reference to your letter of February 16th, please issue a Public Liability Policy for the above, with $5,000/10,000 limits, and not to include Property Damage, with a resulting total premium of $136.04.
“Yours very truly,
“RALPH KEITH INSURANCE.”

Plaintiff then issued a Public Liability Policy No. MCS-216677 for the period from 2/19/59 to 2/19/60 and sent it to Ralph Keith who countersigned the policy and delivered it to defendant. The policy called for an advance premium of $136.04 computed on a premium base of an estimated $7,000 annual payroll and did not contain an endorsement excluding officers and stockholders from coverage, but on the contrary the policy in paragraph 1 of the insuring agreements defined the word “insured” as including the named insured (defendant) and also included any executive officer, director or stockholder while acting within the scope of his duties. The policy contained among others the following provisions :

“1. Premium: The premium bases and rates for the hazards described in the declarations are stated therein. Premium bases and rates for hazards not so described are those applicable in accordance with the manuals in use by the company.
“The advance premium stated in the declarations is an estimated premium only. Upon termination of this policy, the earned premium shall be computed in accordance with the company’s rules rates, rating plans, premiums and minimum premiums applicable to this insurance. If the earned premium thus computed exceed the estimated advance premium paid, the named insured shall pay the excess to the company; if less, the company shall return to the named insured the unearned portion paid by such insured.
“When used as a premium basis:
* * * * * *
“(3) the word ‘remuneration’ means (a) the entire remuneration earned during the policy period by all employees of the named insured, other than drivers of teams or automobiles and aircraft pilots and co-pilots, subject to any overtime earnings or limitation of remuneration rule applicable in accordance with the manuals in use by the company, and subject with respect to each executive officer to a maximum and a minimum of $100 and $30 per week, and (b) the remuneration of each proprietor at a fixed amount of $3,600 per annum;
* * * * * *
“2. Inspection and Audit: The company shall be permitted to inspect the insured premises, operations and elevators and to examine and audit the insured’s books and records at any time during the policy period and any extension thereof and within three years after the final termination of this policy, as far as they relate to the premium bases or the subject manner of this insurance.”

Mr. Babcock testified to the effect that when the first liability policy was delivered he glanced at it but did not read all of its provisions and doubted very seriously if any one else connected with the defendant had read the policy.

In February, 1960, a new or renewal Workmen’s Compensation Policy No. WH-244442 was issued by plaintiff and delivered to defendant covering the period from 2/7/60 to 2/7/61. This policy called for the same advance premium based on the $7,000 estimated payroll and contained the same provisions including the endorsement excluding the officers and stockholders from coverage as the original Workmen’s Compensation policy issued by plaintiff to defendant.

In February 1960 a new or renewal Public Liability Policy No. MCS-219920 was issued by plaintiff and delivered to defendant covering the period from 2/19/60 to 2/19/61. This policy called for the same advance premium and contained the same pertinent provisions as the first liability policy that was issued by plaintiff to defendant.

After the expiration of the policy periods of the original Workmen’s Compensation and Public Liability policies and after issuance of renewal policies an audit was made by plaintiff. According to the testimony of Eugene F. Rechtien, supervising auditor for plaintiff, the audit on liability policy No. MCS-216677 resulted in the computation of a total earned premium on said policy of $843.72 and after giving credit for the advance premium paid by defendant the net additional premium was $707.68. That in making this audit there was included in the payroll of the defendant the salaries of the six officers and stockholders of the company who were active in the conduct of the business. Plaintiff subsequently billed defendant for the additional premium and after a dispute ensued over the inclusion of the salaries of the six officers and stockholders in computing the earned premium, defendant cancelled the renewal liability policy as well as the renewal Workmen’s Compensation policy as of 7/1/60. That plaintiff made an audit covering the period the renewal policies were in effect. According to the testimony of Mr. Rechtien, the audit in connection with the renewal liability policy revealed that plaintiff was entitled to an earned premium of $179.99 and after giving credit for the advance premium of $136.04 paid by defendant the net additional premium due from defendant to plaintiff was $43.95. Mr. Rechtien further testified that the result of the audit of the original policy and the renewal policy up to the time it was cancelled revealed that there was due plaintiff from defendant the sum of $751.63 as additional earned premiums. Mr. Rechtien further testified that defendant was entitled to a credit in the sum of $111.15 as a refund on two Workmen’s Compensation policies and that according to the audits and the plaintiff’s records there was a balance due plaintiff by defendant of $640.48.

Defendant admitted that the audits were made and that they were made in conformance with the provisions of the policies. Plaintiff’s records of the audits consisting of the auditors work sheets together with the audit summaries typed on regular printed forms, although marked as exhibits and referred to by witness Rechtien in his testimony, were not placed in evidence and were not specifically admitted by defendant.

Plaintiff assigns as error the trial court’s action in overruling plaintiff’s motion for a directed verdict at the close of all the evidence for the reason that the evidence conclusively established that the net amount due and owing plaintiff for additional premiums on the policies was $640.48 and that defendant failed to introduce evidence sufficient to justify a submission to the jury of its defense that regardless of the provisions of the insurance policies there was an agreement between plaintiff’s agent Keith and defendant that the compensation of the officers and stockholders would be excluded from the payroll of defendant in calculating the earned premiums on the policies.

In considering the question of directing a verdict the law has been well stated in Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 1. c. 693:

“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. (Citing cases.) * * * 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 unimpeached 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. (Citing cases.)”

In the instant case plaintiff carried the burden of proof to establish its claim for additional premiums and defendant had the burden to establish its defense. Therefore, for plaintiff to be entitled to a directed verdict, the trial court would have had to find that plaintiff established its claim as a matter of law with no question of fact remaining for the jury to consider and in addition would have had to find as a matter of law that defendant failed to establish its alleged affirmative defense.

We do not think that plaintiff proved its claim as a matter of law. Some of the basic facts to establish plaintiff’s claim were the amounts of earned premiums due and owing plaintiff at the termination of each of the policies, the credits if any to which defendant was entitled, and the net amount due from defendant to plaintiff.

The only evidence offered to prove these essential facts was the oral testimony of plaintiff’s witness Rechtien. Mr. Rechtien testified in substance that the audits of the two liability policies resulted in net additional earned premiums totaling $751.63 and that the audits of the two Workmen’s Compensation policies resulted in defendant’s being entitled to a refund in amount of $111.15 and that the net balance due plaintiff by defendant was $640.48. Although witness Rechtien referred to copies of the audit work sheets and they were marked as plaintiff’s exhibits, the record does not show that they were ever admitted in evidence. A diligent search of the record does not reveal that the defendant either in its pleadings or by counsel in open court admitted the accuracy of the calculations involved in the audit or the correctness of the amount of the earned premiums as testified by Rechtien. It is very seldom that a trial court is justified in directing a verdict in favor of a party having the burden of proof when the case depends on oral testimony. Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 155. It was for the jury to determine what amount if any was due plaintiff by defendant for additional earned premiums after allowing for all credits due defendant.

As we have concluded that plaintiff was not entitled to a directed verdict on its claim, it would appear that a consideration of the question of whether defendant failed to establish its defense as a matter of law is unnecessary. However, this question has a direct bearing on plaintiff’s assignments of error in the giving and refusal of instructions and will therefore be considered.

It is well settled law that insurance is a matter of contract, and is governed by the rules applicable to contracts and that any claim or suit by either party to an insurance contract must be based on the policy as issued. Hall v. Missouri Insurance Co., Mo.App., 208 S.W.2d 830, 832. It is also a fundamental rule that whatever verbally transpires between contracting parties is superseded and merged in a subsequent written contract and this applies to written insurance policies issued by the insurer and accepted by the insured. Wright v. Great Eastern Casualty Co., Mo.App., 206 S.W. 428, 429; Bramble v. Kansas City Life Insurance Co., 349 Mo. 318, 160 S.W.2d 746, 752; Hall v. Missouri Insurance Co., supra. It has also been held that an insured has a reasonable time to accept or reject a policy after it is delivered and if he keeps it a reasonable length of time, he is deemed to have accepted it. Where the policy is kept by the insured an unreasonable length of time, he accepts it as a counter-offer even though he has not read it. Neuner v. Gove, Mo.App., 133 S.W.2d 689, 694, and cases therein cited.

Defendant attempts to avoid the application of the aforementioned rules in defending the case on the theory that the written liability policies issued by plaintiff to defendant differed from a previous oral understanding or agreement of the parties, and as the written policies did not express the prior parole agreement they were based on mistake and were void. Defendant cites the case of Stone v. Stone, Mo., 176 S.W.2d 464, 468, in support of this contention. We do not believe this case is in point as it dealt with the problem of whether a bid made at a foreclosure sale under a misapprehension of the terms of the sale, may be retracted without the consent of the trustee. The court held that because of the bidders mistake as to a material part of the terms of the sale that there was in effect no contract. The case did not involve any attempt to vary the terms of a written contract by prior parole agreements or understandings.

The defendant also cited Iowa-Missouri Walnut Co. v. Grahl, 237 Mo.App. 1093, 170 S.W.2d 437, which is not in point. In that case it was contended that certain recitals on a check which was received and cashed, constituted a written agreement whose terms could not be varied by parole evidence. The court held that the defendant was not bound by words written on the face of a check by endorsing it on the reverse side where the recitals of the face of the check were not called to his attention and he did not learn of them prior to endorsing the check and where there was convincing evidence that the recitals were ambiguous and did not express the true agreement of the parties. The court went on to hold that under the circumstances it was proper to receive parole evidence to explain the recitals and to establish the true terms of the contract agreed upon by the parties.

Defendant also urges that the case of Smith v. Githens, Mo.App., 271 S.W.2d 374, 378, 379, is authority for its defense in this case. The Smith case was a suit on a written contract to recover for asphaltic concrete furnished under the written agreement. Defendant and plaintiff’s partner entered into an oral agreement that plaintiff would supply defendant with asphalt concrete for $1 per square yard of paving an airport runway. Plaintiff’s partner thereupon transmitted the terms of the parole agreement to plaintiff and plaintiff drew up a written contract calling for as-phaltic concrete to be furnished at the price of $10 per ton. The court held that as the written contract did not express the original agreement made by the parties, but an entirely different one, plaintiff cannot avail himself under such contract but must stand by the one which was in fact entered into by both parties.

Under the evidence in the instant case the fact that the plaintiff furnished Keith with a schedule showing that the estimated payroll base for the advance premium on the liability policy was the same as used on the Workmen’s Compensation policy (which excluded the officers and stockholders from coverage because of express endorsement) coupled with the fact that Keith told Babcock in effect that the premiums on the liability policy would be figured the same as on the Workmen’s Compensation policy, does not establish a definite agreement binding on plaintiff to issue a liability policy as could be used as a basis of avoiding the subsequent written insurance contract on the ground of mutual mistake. Assuming, however, that a definite agreement was reached between Keith and Babcock that the compensation of the officers and stockholders would not be included in defendant’s payroll in calculating the earned premium on the policy, Keith having no power to write the policy, still had to order the policy from the plaintiff. The liability policy as issued by plaintiff clearly showed that coverage was extended not only to acts of employees but also as to acts and omissions of officers and stockholders and expressly provided that the compensation of all employees including executive officers would be used to calculate the earned premium. The original liability policy and the renewal policy were received by the defendant and under the testimony of defendant’s president Babcock, neither he, nor as far as he knew, any of other officers and employees made any attempt to read the policies and made no objection to anyone as to their contents during the entire twelve month period of the original policy and not until after the audit of original policies which was several months after the issuance of the renewal policy. Even though the written policies were different or did not express any alleged prior agreement of Keith and Babcock, the sending of the written policy to defendant constitutes a counter-offer and by receiving the policies and retaining them for the time shown here in evidence without objection, the defendant accepted them and is bound by the policies as written, Neuner v. Gove, supra. Defendant has waived any departure in the contents of the policy from the alleged preliminary agreement and is estopped and precluded from asserting that it is not bound by the provision of the written policies 44 C.J.S. Insurance § 277b p. 1107. We hold that under the circumstances shown by the evidence in this case that defendant has failed, as a matter of law, to establish the defense it claims.

Plaintiff contends that it was prejudicial error for the court to permit defendant to introduce testimony of oral conversations between Keith and Babcock as to their understanding relative to excluding the compensation of officers and stockholders in calculating the premiums on the liability policy subsequently issued by plaintiff to defendant and which conversations were at variance with the terms of the policy issued. Plaintiff’s theory being that all prior and contemporary negotiations and statements were merged into the written policy, which alone should be allowed to govern.

Plaintiff’s contention is well taken. “No rule of evidence is better settled than that where the parties enter into a written contract which is complete on its face, then-rights and liabilities are to be controlled thereby, and that in the absence of fraud, accident, or mistake, all evidence of prior or contemporaneous oral agreements respecting the same subject-matter, and varying, modifying, or contradicting the written contract, will be inadmissible. In other words, when a contract has been reduced to writing, the law presumes that it embodies the entire agreement of the parties, irrespective of what the antecedent negotiations, conversations, and expectations of the parties may have been.” St. Louis Basket & Box Co. v. Mastin, Mo.App., 79 S.W.2d 493, 1. c. 495. The court in that case also stated that the parole evidence rule is of particular application to insurance contracts. In Baker v. Keet-Rountree Dry Goods Co., 318 Mo. 969, 2 S.W.2d 733, 1. c. 740, 3 S.W.2d 1003, the court stated: “The rule that all previous negotiations are merged into the contract as finally written applies particularly to insurance contracts. 22 C.J. p. 1112.”

The parole evidence rule was applied in the case of General Accident Fire and Life Insurance Co. v. Owen Bldg. Co., 195 Mo. App. 371, 192 S.W. 145, on a set of facts almost identical with the situation in the instant case. Plaintiff Insurance Co. sued to recover unpaid premiums on an indemnity-policy. Premiums were based on payroll and cost of construction, and at time the policy was issued an advance premium was charged based on an estimate of defendant’s payroll and cost of building. At expiration of policy plaintiff audited defendant’s records and found that the total payroll and cost of the building greatly exceeded the estimates and thus resulted in plaintiff claiming an additional premium. Defendant offered to prove by verbal testimony that an agreement was made before the policies were issued that the amounts charged for advance premiums were to be the total premium charge. The court squarely held that the parole evidence rule was applicable and such parole testimony was inadmissible. The court also quoted from the case of Insurance Co. v. Mowry, 96 U.S. 544, 1. c. 547, 24 L.Ed. 674:

“The understanding of the parties as to the amount of the insurance, the conditions upon which it should be payable, and the premium to be paid, was there expressed, for the very purpose of avoiding any controversy or question respecting them. The entire engagement of the parties, with all the conditions upon which its fulfillment could be claimed, must be conclusively presumed to be there stated. If, by inadvertence or mistake, provisions other than those intended were inserted, or stipulated provisions were omitted, the parties could have had recourse for a correction of the agreement to a court of equity, which is competent to give all needful relief in such cases. But, until thus corrected, the policy must be taken as expressing the final understanding of the assured and of the insurance company.”

The defendant contends that the parole evidence rule does not apply in this case because oral testimony is admissible to show that by reason of mistake the written instrument does not express the true intention of the parties, and cites Employers Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049, and Dickson v. Maddox, 330 Mo. 51, 48 S.W.2d 873. The Employers Indemnity Corp. case involved an action in equity to reform a deed and the Dickson case was a suit in equity to set aside a deed. Both cases state the rule that parole evidence is admissible under proper circumstances to vary a written instrument on ground of mistake but the cases are in no wise analogous to the instant case.

In this case the defendant retained the first liability policy throughout the policy period and retained the renewal policy for several months after it was issued without examining the policies and without making any attempt to determine if the written policies were in accordance with the alleged understanding defendant had with Keith prior to the issuance of the policies. No attempt was made by defendant to correct the alleged mistake in the policies and having retained the policies for such a long period of time it must be conclusively presumed that the written policies expressed the final contract of insurance. We must therefore conclude that the oral testimony as to the understanding of Keith and Babcock that the salaries of officers and stockholders would not be included in defendant’s payroll in calculating the earned premiums on the policies was inadmissible.

Plaintiff assigns as error the giving of Instruction No. 2 by the court on behalf of defendant, which instruction read as follows:

“The Court instructs the jury that notice to the agent is notice to the principal, and if you find and believe from the evidence that Ralph Keith was an authorized agent of the plaintiff, Hartford Accident and Indemnity Company, a corporation, with authority to sign and deliver policies of insurance and collect premiums; and if you further find and believe from the evidence that the defendant and Ralph Keith had an understanding and agreement that the premium on the policies issued and introduced in evidence would be based on wages paid employees, other than officers and stockholders of the defendant, then you will find the issues on plaintiff’s petition in favor of the defendant and the issues on defendant’s counterclaim in favor of the defendant.”

It will not be necessary to consider all of the criticism leveled at this instruction by plaintiff as we have already concluded for reasons previously stated, as a matter of law that defendant did not establish the defense it claims and thus is not entitled to submit the same to the jury. We therefore hold that the giving of Instruction No. 2 was error.

A consideration of plaintiff’s last assignment of error in the refusal of the court to give Instruction B offered by plaintiff is not necessary in view of the conclusions already reached herein.

For the errors noted in the admission of evidence and the giving of Instruction No. 2 the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

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


author: WOLFE, Judge.

text:
    Wilma MYERS, (Plaintiff) Respondent, v. Oliver Allen MYERS, (Defendant) Appellant.
    No. 30782.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing or for Revision of Opinion Denied May 15, 1962.

      Paul Taub, Overland, for appellant.
    Thomas, Busse, Weiss, Cullen & God-frey, Donald H. Clooney, Spencer M. Thomas, St. Louis, for respondent.
   WOLFE, Judge.

This is an action for divorce, in which the wife charged the husband with indignities that rendered her condition as his wife intolerable. The husband filed a cross-bill, charging his wife with indignities. The plaintiff was granted a divorce with alimony in the sum of $100 a month, and the defendant husband has appealed.

The facts of the case are that the parties were married March 4, 1951, and they lived together until December 16, 1959. There were no children born of the marriage. During the early years of their marriage the plaintiff was employed by the telephone company. While she was so employed she turned over her paychecks to her husband, who handled the family finances. He was employed as a metal finisher at an automobile plant in St. Louis.

About three years before their separation they moved to the home of Winfield Myers, brother of Oliver Myers, the defendant. Winfield was divorced. He had three daughters, who at the time of trial were eight, six, and five years of age. It was understood at the time that the plaintiff and defendant moved to Winfield’s home that the plaintiff, who was then unemployed, was to take care of her brother-in-law’s children and to keep house for him and her husband. The plaintiff did this and had done so for about three years prior to her separation from the defendant.

Up to this point there is no factual disagreement, but the balance of the evidence, as it relates to the indignities charged, is quite conflicting.

The plaintiff testified that her husband was one of a large family, and that most of their recreation and entertainment was centered about his family’s activities. The plaintiff testified that the defendant informed her that his family came first and that she came second. For over two years of their married life they spent almost every weekend on a farm belonging to his brother George, where the men of the family were engaged in building a house. This was a family affair, and the women and children of the family all went along. The women prepared the meals and looked after the children while the men worked.

There were, in addition to these weekend activities, holidays and birthday parties for members of the Myers family, which the family attended. The defendant stated that there were birthday parties for “every kid in our family * * *. It’s definite.” He further stated that on all holidays all of his family got together, including their wives. Plaintiff said that the defendant refused to visit members of her family, and was cold toward her on the few times that she visited them. She stated that on the weekend parties the defendant and his brothers would drink beer and argue, and that the affairs usually ended in drunken brawls. She also testified that the defendant spent about three nights a week out with one of his brothers or at a family gathering, where he would “sit and drink and he would just get drunk.” She stated that this continued throughout their entire married life.

She also testified that her husband was demanding and domineering toward her, and that when he spoke she “had to jump”. She said that he used foul language toward her in the presence of his family and in the presence of Winfield's children. She testified that he drank beer every night and ordered her to bring beer to him, and that she brought it to him. She said that at times he came home quite late, with the odor of beer upon him, and would start to fight. She said that he heat her frequently, and that once Winfield also beat her. She testified that at times he would ask her to drive the car because he was too drunk to drive. She said that he would heat her at times in the car, and upon one occasion held her by the hair with one hand and beat her with the other, and that he held her by the hair when she tried to get out of the car.

The plaintiff suffered from menstrual irregularity and resulting nervousness. She stated that her nervousness was more pronounced in the last year of their marriage. She told her husband in December that she was going to leave him and that she wanted a divorce. She said that he asked her to stay until January as her departure at that time might upset his mother and spoil her Christmas. She agreed to stay but Win-field told her to get out, and since it was his house she left. She moved to her aunt’s home, and she stated that her room and board plus doctor bills amounted to $129 a month.

The plaintiff’s physician was called as a witness. He stated that he had treated her over a period of years for various common ailments and for irregularity of menstrual periods. He said that she came to him, on December 12, 1959, crying, upset, and apprehensive. He said that she had been nervous because of her disability before, but not to the extent that she was at the time of trial, and he could not say that her then present condition was caused by her menstrual difficulties.

Mrs. Lorraine Myers, a sister-in-law, was also called as a witness. She stated that the defendant ivas demanding and domineering toward the plaintiff. She related that on one occasion when she was present, he was lying on a couch watching television, and “he told Wilma, ‘Bring me a beer,’ and his attitude was right now.” She said that she had seen him drink beer on many occasions, and that she had seen him under the influence of alcohol.

Two character witnesses were called for the plaintiff, and the defendant was called also, for the purpose of proving his income. He stated that he was employed as a metal finisher by the Lincoln Mercury automobile plant, and at the time of trial, which was June 28, 1960, he had been laid off since April 8, 1960. He was then drawing unemployment compensation. His pay while working averaged around $80 a week, and he was physically fit for work.

The defendant’s testimony in his own behalf consisted of a categorical denial that he had ever beaten the plaintiff. He stated that only on one occasion, a number of years before, he had slapped her with provocation. He stated that he had never been drunk, that he drank one or two beers each night, and at family parties four or five. He also stated that the plaintiff always enjoyed the family outings, and that she did not need to go unless she wanted to. The defendant testified that his wife cursed him, and her statement as to this was covered by a cross-examination, in which she said that she had gone to her father’s house four or five times, and that on each occasion the defendant cursed her, and she called him, “a damn dirty rat”.

The defendant stated that at one time his wife attempted to stab him with a pair of scissors. Her version of this, brought out on cross-examination, was that she was goaded into going at him with a pair of scissors by his telling her that she was crazy.

The defendant’s brother Winfield testified on behalf of the defendant, and he also denied that the defendant drank to excess or beat his wife, and he denied that he had ever beaten his sister-in-law. He said that he loved her as a sister, and that she had taken good care of his house and had been good to his children. He blamed her present discontent on another sister-in-law, Lorraine, who testified for the plaintiff. He said that Lorraine was a troublemaker, and had made Wilma discontented. Two friends of the parties testified on behalf of the defendant that they had frequently been in their company and had seen no mistreatment of the plaintiff.

The points raised by the defendant, in summary, are that the plaintiff failed to prove that she was the innocent and injured party and that her evidence was incredible; that the defendant was the innocent and injured party and should have been granted a decree of divorce; and that the defendant was without ability to pay any alimony and that the award of alimony was therefore erroneous.

We are cited to a number of cases touching upon various well established rules regarding the sufficiency of the evidence to support a divorce decree. There is no dispute about these rules, and it would serve no purpose to restate them. It is axiomatic that our review in a case of this kind is a trial de novo in which we reach our own conclusions from the record before us. Where, however, there is sharply conflicting evidence and a determination of the case rests upon the credibility of the witnesses, we defer to the trial judge who has heard the witnesses. Pippas v. Pippas, Mo.App., 330 S.W.2d 132, and cases therein cited.

It would be difficult to find a case wherein the evidence of opposing parties was in greater conflict as to some of the pertinent facts. The wife’s testimony disclosed a continuous course of abusive treatment, and the husband’s evidence was that he was not abusive. Her evidence was that he drank to excess, and his was to the contrary. The appellant states that the plaintiff’s evidence is incredible because it is denied by the husband and his brother and other witnesses. This, of course, is absurd for if true, any plaintiff would be held incredible because her testimony was contradicted by the defendant and his witnesses. The trial judge obviously believed the plaintiff, and in accordance with the above rule respecting our review, we defer to the trial judge.

As to the plaintiff’s responding in kind to her husband’s cursing and the scissor incident, we have frequently held that one does not have to be without fault to be the innocent and injured party (Bressie v. Bressie, Mo.App., 266 S.W.2d 24), and one spouse cannot complain of acts into which he had goaded the other. Kolaks v. Kolaks, Mo.App., 75 S.W.2d 600.

As to the alimony award of $100 a month, we do not think it excessive considering that the plaintiff was a person in ill health and unemployed. As to the capacity of the defendant to pay, the only evidence we have is that he had been laid off from work a short time before trial. There was no suggestion that this was a frequent occurrence or that it was anything more than a temporary situation. His normal pay was around $355 a month, and the award therefore appears well within his capacity to meet it.

The judgment is affirmed.

RUDDY, Acting P. J., and SAM C. BLAIR, Special Judge, concur.

ANDERSON, J., not participating.


author: ELGIN T. FULLER, Special Judge.

text:
    Stella JOHNSON, (Plaintiff) Appellant, v. Mary WOODARD and Regina Goff, (Defendants) Respondents.
    No. 30635.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 15, 1962.
    Jerome F. Duggan, Sidney W. Horwitz, St. Louis, for appellant.
    Sidney R. Redmond, St. Louis, for respondents.
   ELGIN T. FULLER, Special Judge.

This is an appeal from an order and judgment of the Circuit Court of the City of St. Louis dismissing the plaintiff’s amended petition for statutory partition. This court, to which plaintiff originally appealed, transferred the case to the Supreme Court of Missouri on the ground that the case involves title to real estate within the meaning of the Constitution, Art. V, Sec. 3, V.A.M.S. Johnson v. Woodard, Mo.App., 343 S.W.2d 646. However, the Supreme Court, deciding that title to real estate in the constitutional sense was not presented, retransferred the cause to this court. Johnson v. Woodard, Mo., 352 S.W.2d 9.

Stella Johnson’s amended petition alleged that Sara C. Young, fee simple owner of the land, devised it by her last will and testament to Mary V. Woodard, Stella Johnson and Regina Goff “to share equally, and to the survivor of them” and that the interests of the respective parties were as follows: Stella Johnson, an undivided one-third interest; Mary Woodard, an ttndivided one-third interest; Regina Goff, an undivided one-third interest; that partition could not be made in kind without great injury to the interests of plaintiff and defendants; and prayed that the court determine the right, title, interest and estate of the parties, ■order partition and sale of the property, and a division of the proceeds.

Paragraph 6 of the petition sets out Article II of the last will of Sara C. Young, which is as follows:

“I give, bequeath and devise my home located at 4562 Labadie Avenue in the City of St. Louis, Missouri, and any and all other real estate wheresoever situated to my beloved sisters, Mary V. Woodard and Stella Johnson, and my beloved niece, Regina Goff, Ph.D., to ■share equally, and to the survivor of ■them.”

The defendants filed a motion to dismiss the amended petition, the principal ground ■of which was that, “Plaintiff seeks in her -petition to partition land which was left ■equally to her and to defendants Mary Woodard and Regina Goff ‘and to the survivor of them’; the relief sought is specifically prohibited by Section 528.130 of the Revised Statutes of Missouri, 1949.”

The plaintiff makes two points in support •of her contention that the trial court erred in sustaining defendants’ motion to dismiss •plaintiff’s amended petition: (1) that her petition was sufficient to state a cause of •action for partition, and (2) that it was error to dismiss the petition on the basis of Section 528.130 RSMo 1949, V.A.M.S. (See Civil Rule 96.13, V.A.M.R.) Plaintiff contends that this devise did not create a life estate in the three devisees as joint tenants, with the remainder to the survivor of them, but that under Section 442.450 RSMo 1949, ‘V.A.M.S., the devise created a tenancy in common in the three devisees, and therefore the court had jurisdiction to decree partition between such co-tenants.

Defendants take the position that the will •created a joint estate for life in the three •devisees, with a contingent remainder in the survivor of them, and that the Circuit Court had no jurisdiction to partition land devised ■.to life tenants' and a contingent remainder.

Section 528.130 RSMo 1949, V.A.M.S. (Civil Rule 96.13), provides:

“No partition or sale of lands, tenements or hereditaments, devised by any last will, shall be made under the provisions of this chapter, contrary to the intention of the testator, expressed in any such will.”

Section 442.450 RSMo 1949, V.A.M.S., reads as follows:

“Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy.”

The only question before the trial court and the only question before this court is plaintiff’s right to partition the real estate, in view of the manner in which it was devised when-considered in the'light of Section 528.130; that is, whether the partition •sought is. contrary to the intention of the testatrix as expressed in her will. That is a question of will construction.

The trial court had before it only plaintiff’s petition, which, as stated, set out Article II of the will. The will itself was not pleaded, attached or filed. The appellant rather mildly raises the point in her brief that the trial court was without the benefit of the entire will in ascertaining the intent of the testatrix when it ruled on defendants’ motion to dismiss, and plaintiff expressed the belief that the entire will, if introduced in evidence, would assist in determining the intent of the testatrix. The defendants state in their brief that the will was read to the trial judge during oral argument on their motion to dismiss. The record reveals that a certified copy of the will was deposited with the Clerk of the Supreme Court October 3, 1961. 'The only parts of the will devising real estate are Article II, set out above, and Article VI, which is the article disposing of the residuary estate and disposes of the residue, including real estate, to Mary Woodard, Stella Johnson and Regina Goff, “to share equally, or to the survivor of them.” In Article VI the phrase, "or to the survivor of them,” is used rather than “and to the survivor of them,” as is stated in Article II. It can he seen that the part of the will not before the trial court sheds no additional light in determining the intent of the testatrix in the devise of the real property.

The keystone of construction in determining the meaning of any will is the intent of the testator. In this case any conclusion as to what the testatrix may have had in mind must be based upon the legal effect of the language used in the will itself. Article II, stripped of the extra verbiage, is this: “I devise my real estate to Mary, Stella and Regina, to share equally, and to the survivor of them.”

Strange as it may seem with the many deeds and wills granting and devising real estate in various ways and creating all kinds of estates, there is no case in Missouri which has used the exact language employed in Article II of the will in this case.

Tenancies in common and classical Joint tenancies may be severed by one of the tenants by conveyance or suit for partition. Section 528.030 RSMo 1949, V.A.M.S.; McClendon v. Johnson, Mo., 337 S.W.2d 77. Such conveyance or partition destroys the joint tenancy and thereby destroys the right of survivorship. Gibson v. Zimmerman, 12 Mo. 385; Frost v. Frost, 200 Mo. 474, 98 S.W. 527, 2 Blackstone 185; Hunter v. Hunter, Mo., 320 S.W.2d 529, 69 A.L.R.2d 1048; Gill on Missouri Titles, 3rd Ed. 1931, Sec. 574, p. 292.

The testatrix in disposing of her real estate did not create the classical joint tenancy and did not meet the requirements of Section 442.450 RSMo 1949, V.A.M.S., for in the devise there were no words expressly declaring the estate devised to be in joint tenancy. But our Supreme Court in Powers v. Buckowitz, Mo., 347 S.W.2d 174, held that Section 442.450 does not require joint tenancy to be “expressly declared,” but merely requires that the granting instrument by plain implication manifest the intention of the parties to create an estate with th e incidents of survivorship, and that any words expressing affirmatively the intent to create a joint tenancy will suffice. The court in the Powers v. Buckowitz case did not approve language used by that court in State ex rel. Ashauer v. Hostetter, 344 Mo. 665, 670, 127 S.W.2d 697, 699, wherein it was said that the statute “makes it plain that a joint tenancy can be created in grantees or devisees, who are not executors, trustees or husband and wife, in one way only, and that is to expressly say so, by using the term ‘joint tenancy.’ ” In Powers v. Buckowitz, supra (347 S.W.2d 1. c. 175), a deed read “to ‘Irene M. Roeckel and Georgia M. Buckowitz (daughter of Mrs. Roeck-el) as tenants by entirety and to the surviv- or of them.’ ” (Emphasis supplied.) Later Mrs. Roeckel married the plaintiff Powers, and five years later died. Powers then brought partition, claiming an undivided one-half interest. The trial court and the Supreme Court held that the defendant daughter, upon her mother’s death, was the owner of all in fee. Certainly there was no literal compliance with Section 442.450, for no joint tenancy was expressly declared, but the Supreme Court held, and at page 176 stated: “A conveyance to two or more persons, as to mother and daughter from mother, and to the survivor of" them is an affirmative expression of intention to create that class or character of an estate, a joint tenancy with right of survivorship.” (Emphasis supplied.)

But compliance or non-compliance with the restrictive provisions thrown around the creation of joint tenancy under Section 442.-450 is not determinative of this case. The devise here was by the last will and testament of Sara C. Young. We are called upon to ascertain the true intent and meaning of her will, and the provisions of the statutes relating to wills are controlling in this case. This is clearly decided and pointed out in the two cases of Hunter v. Hunter, Mo., 320 S.W.2d 529, 69 A.L.R.2d 1048, and McClendon v. Johnson, Mo., 337 S.W.2d 77. In the Hunter case (320 S.W.2d at 1. c. 530) the will provided: “I give and devise unto my mother, Mrs. D. R. Hunter * * and unto my sister, Virginia Hunter, as joint tenants with the right of survivorship.” (Emphasis supplied.) Thereafter the mother conveyed a one-half interest in the property. The court held that the testatrix intended to devise to her mother and sister a joint estate for life and that the survivor should take the fee, and that therefore the deed from the mother did not sever the joint estate. The court recognized that one joint tenant in a classical joint estate may destroy the joint tenancy and thereby destroy the right of survivorship, but the court, after referring to the Frost and Gibson cases, supra, at page 531, stated: “In neither of the above cases was the court called upon to interpret a will. No citation of authority is necessary in support of the rule to be followed by courts in construing and interpreting wills, and the parties in this case agree that the rule is that in construing wills courts should give effect to every clause and portion of a will in determining the intent of the testator. Housman v. Lewellen, 362 Mo. 759, 244 S. W.2d 21, loe. cit. 23(2).”

In McClendon v. Johnson, supra (337 S.W.2d 1. c. 79), the basic issue turned upon the proper construction of a deed which read: “As joint tenants, and not as tenants in common, with right of survivor-ship.” (Emphasis supplied.) That was the same language as was used in the will in the Hunter case, except for the words “and not as tenants in common” which had no real significance. One of the joint tenants, Alexander, conveyed his interest in the joint tenancy to himself and defendant, Herman Johnson, as joint tenants. Plaintiff contended that the original deed made her and Alexander joint tenants with right of survivorship and that she and Alexander (now dead) held mere life estates until the fee vested in plaintiff as the survivor, and that Alexander’s deed to defendant conveyed nothing more than Alexander’s life estate. The court held that the first deed to plaintiff and Alexander created a classical joint tenancy and that Alexander had the right to sever the joint tenancy by deeding his interest to himself and defendant as joint tenants, and that upon so doing and upon Alexander’s death, the defendant became the owner of an undivided one-half interest in the real estate. The plaintiff relied upon the case of Hunter v. Hunter. But the court in McClendon v. Johnson, page 81, points out the distinction in the two cases as follows:

“The opinion in that case (Hunter case) makes clear (1) that the court was called upon to ascertain the true intent and meaning of a will * * * and (2) that the provisions of the statutes relating to wills controlled disposition of the issues rather than the statutes relating to conveyances by deed. Moreover, the opinion (in the Hunter case) specifically states: ‘If by the will in question the testatrix had devised to Della B. Hunter and Virginia Hunter the land in question as joint tenants and nothing more, then by force of the statute and by operation of law a joint estate in fee would have been created with the right of survivor-ship. In such cases, the right of sur-vivorship, implied by operation of law, can be defeated and the joint tenancy severed by a conveyance of one of the joint tenants.’ * * * The testatrix did indicate that it was her intention that her mother and her sister should have the land for life and the survivor should take the fee. It is our opinion that such is the proper interpretation of the will.”

The court in McClendon v. Johnson then concluded (1. c. 81), “We, therefore, hold that Hunter v. Hunter, supra, is neither controlling nor in any manner decisive of the issue presented under the deeds here in evidence.”

Sara C. Young, testatrix, did not use words which would create a classical joint estate as required by Section 442.450, but she did intend, in using the phrase, “and to the survivor of them,” to create that class or character of an estate which would have the quality of survivorship, not merely the right of survivorship which is implied by operation of law in a classical joint tenancy, but the specifically declared right of sur-vivorship in Article II of her will. In interpreting this will we are not at liberty to ignore the phrase, “and to the survivor of them.” The rules applicable to the construction of wills must not be ignored, and the statutory provisions concerning Titles and Conveyances of Real Estate (Chapter 442 RSMo.1949, V.A.M.S.) have not changed such rules.

This devise did not make the devisees joint tenants of the fee. It made them joint tenants for life with a contingent remainder in fee to the one who survives or who is the longest liver. Had the three devisees become joint tenants of the fee then any one of them could by conveyance or partition deprive the others of the right of survivorship which would be incident to such joint estate. But the manifest intention of the testatrix was to devise an estate which would ultimately go to the survivor or longest liver, or as otherwise described, as joint tenants for life with a contingent remainder in fee to the one who survives. In such a case no joint tenant can, by conveyance, partition or otherwise, destroy the right of survivorship.

Respectable authorities in other jurisdictions sustain our view. In the case of Coffin v. Short, 82 R.I. 132, 106 A.2d 262, 1. c. 263, 46 A.L.R.2d 519, the testator’s will named his nephew and niece and provided, “to have and to hold the same to them or the survivor of them.” The Supreme Court of Rhode Island held that the above words “or [to] the survivor of them” manifested an intention to create a joint tenancy with its incident of survivor-ship and came within the exception of the statute which provided for a presumption against a joint tenancy. Even though the statute in making an exception to the presumption against joint tenancy, required the words, "and [to] the survivors or survivor of them,” and the will used the phrase "or the survivor of them,” the court said, “In construing a will the court may construe the words ‘and’ and ‘or’ as interchangeable if such a construction is necessary to carry out the intention of the testator as manifested in the whole will. * * The chief incident of a joint tenancy is survivorship * * *. By the use of the term ‘survivor’ in this context the testator clearly indicated that there should exist a right of survivorship and all the legal incidents thereof as between the two dev-isees.” (106 A.2d 1. c. 263.) The court held that upon the death of the niece the entire residue vested in the nephew.

In re Ward’s Will, 124 Misc. 292, 208 N.Y.S. 413, 1. c. 415, the will as to the real estate provided, “to my said wife and my said daughter jointly and to the survivor of them.” The court held that the intention plainly appeared to give the real estate to the wife and daughter as joint tenants and that consequently the presumption of tenancy in common created by the statute was overcome.

In the case of Hannon v. Christopher, 34 N.J.Eq. 459, it was held that the devise, “unto my niece, Mary * * * my mother, Sarah * * * and my brother, Thomas * * * to the survivor of them, and to the heirs and assigns of such survivor” vested in the three named persons merely a joint estate for lives and limited a contingent remainder in fee to the survivor. The court stated generally, upon the authority of Vick v. Edwards (Eng.) 3 P Wms 372, 24 Eng. Reprint 1107, that: “A devise to two and ‘the survivor of them, and the heirs of such survivor,’ gives them a joint estate for life only, with a contingent remainder in fee to the survivor.”

In Rowerdink v. Carothers, 334 Mich. 454, 54 N.W.2d 715, it was held that a conveyance to “Alfred Carothers and Delarma Hackett or the survivor of them” conveyed one half to each for life and the remainder to the survivor in fee, so that neither could by conveyance in his lifetime cut off the contingent remainder.

In Schultz v. Brohl, 116 Mich. 603, 74 N.W. 1012, the grantees were “Peter Brohl and Christine Schultz * * * to them and the survivor of them.” The Supreme Court of Michigan construed the deed to convey a moiety to each of these parties for life, with remainder to the survivor in fee.

The Supreme Court of Michigan in Finch v. Haynes, 144 Mich. 352, 107 N.W. 910, held that a deed which conveys land to two grantees and to the survivor of them, and to their heirs and assigns forever, conveyed a moiety to each for life with remainder to the survivor in fee, and that neither of them, by conveyance during his life can create a tenancy in common, so as to cut off the contingent remainder.

In 46 A.L.R.2d 1. c. 535, it is stated: “A gift to persons ‘and’ to the survivor of them * * * is at least open to the construction that it manifests an intent to create a joint tenancy,” citing Stimpson v. Batterman, 59 Mass. (5 Cush.) 153; Bowditch v. Atty. General, 241 Mass. 168, 134 N.E. 796, 28 A.L.R. 713; and Pierce v. Baker, 58 N.H. 531.

Appellant contends that the will created a tenancy in common among the three devisees and that therefore one of the tenants had the right to bring partition. It is true that the words “to share equally,” as used in this will, or “share and share alike” frequently import a division of the property among the takers, and in fact are part of the language often used conveying a tenancy in common. Keller v. Keller, 338 Mo. 731, 92 S.W.2d 157. But to hold that Article II of the will in question created a tenancy in common in fee we would have to disregard the words “and to the survivor of them.” Notwithstanding the use of the words “to share equally” or “share and share alike” or other words importing severance or distribution, other language of a will bearing on the right of survivorship, or the implications as to rights of survivorship may be such as clearly to show that joint tenancy is intended, and result in such tenancy. Kemp v. Sutton, 233 Mich. 249, 206 N.W. 366; In re Monroe, 42 R.I. 412, 108 A. 497. That is the situation here. We cannot ignore the words “and to the survivor of them.” The right of survivorship is not an incident of a tenancy in common.

In interpreting this will and giving effect to the language used in Article II, we hold that the devise to the three named persons “to share equally, and to the survivor of them” is an affirmative expression of an intention to create a joint tenancy for life with remainder in fee to the survivor, and that it was the intention of the testatrix to devise an estate which would ultimately go to the survivor, and that such an estate may not be severed by partition.

At the close of the oral argument in this court the death of defendant Mary Woodard was suggested. In view of the holding in this case her death has no legal effect on the status of this estate. The heirs of any deceased devisee, other than of the survivor of the three devisees, acquire no interest or title in the real estate.

Accordingly, the order and judgment of the trial court dismissing plaintiff’s cause of action for partition is affirmed.

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