author: FRANK W. HAYES, Special Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent, v. CONTAINER MANUFACTURING COMPANY and Consolidated Container Corporation (In re Search and Seizure at 1825 Chouteau, St. Louis, Missouri), (Defendants) Appellants.
    No. 31233.
    St. Louis Court of Appeals. Missouri.
    Jan. 15, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 11, 1963.
    Herman D. Olian, St. Louis, Merle L. Silverstein, Clayton, for appellants.
    Daniel P. Reardon, Jr., Circuit Atty., and James K. Pendleton, Asst. Circuit Atty., St. Louis, for respondent.
   FRANK W. HAYES, Special Judge.

This is an appeal from an order of the Circuit Court for Criminal Causes, City of St. Louis, Missouri, ordering the confiscation and destruction of certain punch boards. These punch boards, numbering 100,408, were seized under a search warrant directing Sergeant Virgil Kleine of the St. Louis Police Department to search the fifth and sixth floors of a building at 1825 Chouteau Avenue, St. Louis, Missouri, and to seize punchboards and other somewhat related items. These premises were occupied by the appellants Container Manufacturing Company and Consolidated Container Corporation. The appellant Container Manufacturing Company is the owner of the 100,408 punchboards, and all of the other related items which were confiscated were owned by the Universal Manufacturing Company of Kansas City, which neither appeared in court nor made any claim. Counsel for appellant in their brief frankly state that this appeal is limited to the matter of the punchboards only.

Upon the motion to confiscate, the evidence introduced by the State in the Circuit Court is substantially as follows: On November 21, 1961, witness James Reddick, using the name of Watts, a member of the St. Louis Police Department,, visited the premises known as 1825 Chouteau Avenue, St. Louis, Missouri, about 3:00 P.M. He went to the fifth floor and contacted a Mr. Chester Sax. He told Mr. Sax he was interested in purchasing some gambling equipment. Sax took him to the sixth floor into a room where numerous punchboards were stacked almost up to the ceiling. Sax gave him one of these punchboards, identified as State’s Exhibit 1. On this punchboard were the following instructions:

“Texas Charlie, 1200 holes, 25⅜⅞ Sale. Average Payout: Nos. 77-177-277-377-477 and last sale on board each rec’s one punch in jackpot. Jackpot contains 40 holes $5.62 Avg. Board takes in 1200 holes at 25 . . . $300.-00. Pays out: Jackpot average (5) $28.10; Last Sale . . . $5.62; 164 Consolidated at $1.00 . . . $164.00; Average payout . . . $197.72; Average profit . . . $102.28.”

On the basis of the punchboard and other ■gambling paraphernalia observed on the -premises, a search warrant was duly issued and a search was made, by Sergeant Virgil Kleine of the St. Louis Police Department and other police officers, of the fifth and ■sixth floors of premises at 1825 Chouteau Avenue, St. Louis, Missouri, on November .22, 1961. The return to the search warrant disclosed that the officers seized 100,408 punchboards (and other paraphernalia not involved herein). Several of these were introduced in evidence as demonstrating the various types of punchboards seized.

State’s Exhibit No. 2 was a cigar box with the name of “Superior” printed on the top. On the inside of the lid were printed the words “Get-A-Hitch”. “Jackpot contains $25.00, $20.00, $10.00, $8.00, $6.00, . $4.00, $2.00 awards”. “10^ per punch”. Also on the inside of the lid appeared “3 bells, $2.00; 2 bells and 1 liberty, $2.00; 3 plums, .$1.00; 3 oranges, 50‡” and other awards of varying amounts. The punchboard itself ■was within the cigar box and bore the name of “Jack Pot” printed on the board which contained holes and foils usually found on punchboards.

Without burdening this opinion with a detailed description of the various exhibits, it suffices to say that they were punchboards similar to Exhibits 1 and 2 described above. Exhibit 3 was called “Hialeah” and was cigar-box type. It featured horse racing and had a “win section” and “place section” posted on the lid with heads of horses posted over the awards which ran in various amounts. The punchboard and foils were in the body of the cigar box. On the board was listed various awards to “win” or “place”. Exhibit 4 was a flat type board. It cost five cents a play and paid “50‡, $5.00, $1.00, 25‡”. On the face of the board were various symbols indicating the winning punches. The board itself contained many holes with foils therein. Exhibit No. 5 was more elaborate. It was designated “Pig in a Poke”. It was a large board mounted upright on a base upon which were mounted six little pigs. It costs 25 ¡⅞ to play and “pig seals” paid “four, ten, five or two dollars”, with various special awards. The board contained the usual holes with foils therein. The evidence showed that these exhibits were typical punchboards and were rvmbolic of the thousands seized under the search warrant. There can be no doubt but that these punchboards introduced in evidence qualified as punchboards as the term is used in Section 563.374 RSMo 1959, V.A.M.S. There was no evidence introduced to show that any of the punchboards were ever used for gambling or gaming operations or that the officer saw any gambling conducted on the punchboards. Chester Sax, appellant’s only witness, testified that his company manufactured and sold the punchboards; he had no knowledge of any actual gambling done with the board and no further connections with the boards after they were sold; the boards could be used for gambling but also for a great variety of lawful purposes, i. e., for parties and games, sales promotion, incentive to salesmen, etc. There was no evidence that the punchboards were involved either directly or incidentally in interstate commerce.

It is the appellants’ contention that the trial court’s order confiscating the punch-boards is erroneous because the State failed to prove that the punchboards were used in any gambling or gaming operation, involving a pay-off in money or property as required under Section 542.380 RSMo 1959, V.A.M.S., hence the possession thereof was not unlawful. It is the respondent’s position that under Section 563.374 RSMo 1959, V.A.M.S., punchboards are designated as gambling devices per se, are declared, contraband, and are subject to confiscation without any showing of their actual use in a gambling operation. Section 563.374 RS Mo 1959, V.A.M.S. provides as follows:

“Every person who shall sell, store, possess or transport except in interstate commerce any punchboard, slot machine, lottery ticket, roulette wheel, policy slip, book, list of numbers or any other evidence of transactions incident to a lottery, or any other gambling device, equipment or article, shall be deemed guilty of a misdemeanor. All such equipment, devices and articles are hereby declared contraband and may be seized by any peace officer to be disposed of as herein provided.”

No Missouri decision has been cited us nor have we found any construing the above section. A reading of said section, however, discloses that the Legislature has designated and classified “punchboards” as a gambling device, made their mere possession a misdemeanor and declared them to be contraband to be disposed of as provided by law. This section does not require that the punchboard be used in gambling or that it is about to be used in gambling in order to make it contraband. The statute makes it contraband by classifying it as a gambling device. This construction is supported by Section 563.375 RSMo 1959, V.A.M.S. This section provides that the officer making the seizure shall notify a Magistrate who shall set a date for determining whether the-property seized is one of the articles mentioned in Section 563.374, supra, or if not, whether it is gambling equipment of any kind. After written notice to the owner, the owner of the property may appear at the hearing and defend against the charges. The section further provides that “If the magistrate finds that such property is one of the articles or devices mentioned in section 563.374 hereof or if not, that it is gambling equipment of any kind, he shall cause it to be publicly destroyed,, * * It is. evident from the foregoing that our Legislature has defined and classified a “punchboard” as a gambling device per se, made it contraband and its mere possession a crime, regardless of whether it has been, is or will be used for gambling purposes. Similar statutes of other states have been likewise construed as seen from the following cases.

In State v. Appley, 207 S.C. 284, 35 S.E.2d 835, 162 A.L.R. 1184, the defendant appealed from a conviction and sentence for violation of Section 1301-1 of the Criminal Code of 1942 of the State of South Carolina. The section provided that “It shall be unlawful for any person, firm, or corporation to keep on his, her, or its premises, or operate or permit to be kept on his, her or its premises, or operated within this State, any vending or slot machine, punchboards, pull boards, * * The machines in question were pin-ball machines previously declared to be illegal under the statutes. (Alexander v. Martin, Sheriff, 192 S.C. 176, 6 S.E.2d 20, and Alexander v. Hunnicutt, Sheriff,, 196 S.C. 364, 13 S.E.2d 630.) These machines, seventeen in number, had been shipped from Asheville, North Carolina, to Camp Croft. The shipment arrived at the camp after the receiving warehouse was closed and the machines were taken to the Cannon Music Store in Spartanburg and' left there on a Saturday afternoon. The following Monday, the sheriff, armed with a search warrant, entered the store, found' and seized the machines. They were in-varying degrees of disrepair and none were-completely ready for operation. Defendant was manager of the Spartanburg store. On appeal, defendant contended “That the machines were not ‘kept’ in accordance with the meaning of the statute under which this indictment was brought and that the defendant had never ‘kept’ or operated same in violation of the code.” The Supreme Court of South Carolina, in sustaining the conviction of appellant, says, in 35 S.E.Zd 835,1. c. 836:

“The difficulty with the first assignment of error is that the statute contains no requirement that in order to constitute a violation of it an objectionable machine must be kept for the purpose of operation. The ‘keeping’ is a violation in itself, set off in the law by the disjunctive ‘or’ from the separate crime of operation. Appellant relies on the North Carolina case of State v. Jones, 218 N.C. 734, 12 S.E.2d 292, in which an indictment was held fatally defective for failure to include an allegation that the defendant operated the gambling devices or kept them for the purpose of being operated. But the distinction between that case and this is quite apparent for the law under which that prosecution was attempted provided that the possession be ‘for the purpose of being operated.’ C.S.Supp. 1924, § 4437(b).
“On the other hand it has been decided by other courts, as her.e, that a statute which makes a crime of the ‘keeping’ of a gambling device means what it plainly says. It was held in an Illinois case that the mere keeping of a slot machine was an offense under the statute irrespective of whether it was kept for gambling purposes, the court saying: ‘It was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices, or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not, otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction?’ Bobel v. People, 173 Ill. 19, 28, 50 N.E. 322, 324, 64 Am.St.Rep. 64.”

In City of Wichita v. Stevens (2 cases) and Solomon, 167 Kan. 408, 207 P.2d 386, separate complaints in police court charged all three defendants with “keeping and having possession of gambling equipment, to-wit punchboards” in violation of Section 33 of city ordinance No. 11-592. They were convicted in police court and each appealed to the district court of Sedgwick County. The district court acquitted defendants, Ellis George Stevens and Frank Solomon, but found defendant,, Nick S. Stevens, guilty. The record indicates that the court determined as a matter of law with regard to all three defendants that their possession in a warehouse or wholesale house of punch-boards without prize merchandise attached to them was not a violation of said ordinance. Some of the punchboards in possession of defendant Nick Stevens had merchandise attached to them and these were held to violate said ordinance.

For the purpose of settling the legal question involved, the city attorney made and filed an affidavit pursuant to the Kansas statute stating the question reserved for decision by the Supreme Court as follows: “Was the defendant in the above cause, who admittedly owned and had in his possession in a warehouse, located in the City of Wichita, Kansas, punchboards, described and introduced in evidence in the above entitled case, to-wit: punchboards having no merchandise or money attached thereto, guilty of a violation of Section 33 of Ordinance No. 11-592.”

The record in that case showed that all three defendants were wholesale distributors or jobbers of tobacco, candy, novelties, etc., with places of business in Wichita; the police officers found a large quantity of punchboards of various sizes, types and brands at the place of business of each appellee; none of appellees operated the punchboards themselves nor permitted them to be operated on their premises but sold them to others over their territory.

Section 33 of City Ordinance No. 11-592 provides: “Any person who shall set up or keep or have in his possession in any public or private place in the City of Wichita any ‘punch board’ * * * shall be deemed guilty of a misdemeanor * * *.” In sustaining the appeal by the City of Wichita on the question reserved, the Supreme Court of Kansas said, 207 P.2d 1. c. 390:

“We have difficulty in concluding, as was concluded by the trial court, that the merchandise being attached to the punchboards makes them any more objectionable under the ordinance than without it. Punchboards such as those involved here are gambling devices, whether or not there is attached to them merchandise, money or prices. Punchboards without such thing of value attached are punchboards none the less. They have no use or purpose other than for gambling, and recognizing this, the city enacted an ordinance making their possession unlawful. A gambling device is any instrument adapted and designed to play any game of chance for money or property. Boynton v. Ellis, 10 Cir., 57 F.2d 665. Under its police powers the city had authority to prohibit the possession of punchboards just as it had authority to prohibit the possession of slot machines. Both such devices are prohibited by section 33 of city ordinance No. 11-592, and this identical ordinance was held constitutional in Clemons v. Wilson, 151 Kan. 250, 98 P.2d 423, which involved the possession of slot machines. Neither does the ordinance make any distinction between punchboards located in a warehouse or wholesale house and those under or upon the counters of retail stores or shops. Their possession in any public or private place is made unlawful. The city ordinance in question should have been construed to prohibit the possession of punchboards with or without merchandise or prizes attached, and whether located in warehouses, wholesale houses or any other place.”

In the case at bar, the appellants contend that the “punchboards” were not shown to have been used in any gambling or gaming operation, involving a pay-off in money or property, hence the possession was not unlawful. Similar contentions were made in the Kansas case, supra. The Supreme Court of Kansas, in disposing of the contention, says in 207 P.2d 386, 1. c-390:

“Appellees say 'the case at bar is one of fact and not one of law’. But the ordinance under consideration prohibits punchboards, slot machines, and other gambling devices. Under such an ordinance there was no occasion to determine as a question of fact whether punchboards were or were not gambling devices. In any event they were an instrument which the city determined was detrimental to the peace and welfare of the city, and within its police power the city may prohibit possession of them. We said earlier in this opinion that they were gambling devices — and by that description the ordinance further prohibits possession. The question here is one of law to construe and apply the plain language of a city ordinance.”

In State v. Doe et al., 227 Iowa 1215, 290 N.W. 518, eighty-three slot machines and 148 punchboards were seized as gambling devices under a search warrant duly issued and they were ordered forfeited, resulting in this appeal. In affirming the forfeiture by the lower court, the Supreme Court of Iowa says, 290 N.W. l. c. 522:

“The next assignment of error by appellant is that the court erred in approving the seizure of the property, for the reason that the machines seized are not gambling devices per se, subject to condemnation. Appellant urges that the record fails to show that the devices in question had ever been used for gambling, were being used for gambling, or were intended to be so used, and that therefore they cannot be legally condemned, citing 12 Ruling Case Law 729, and a large number of cases from other jurisdictions. The State, however, cites section 13198 of the ■Code of 1935, which is as follows: ‘If any person keep a house, shop, or place resorted to for the purpose of gambling, or permit or suffer any person in any house, shop, or other place under his control or care to play at cards, dice, faro, roulette, equality, punch board or other game for money or other thing, such offender shall be fined * * * ’
“Also section 13210 of the Code of 1935, providing that no one shall in any manner or for any purpose whatever, except under proceeding to destroy the same, have, keep, or hold in his possession or control, any .roulette wheel, klondike table, poker table, punch board, faro, or keno layouts.
“These sections formerly had not included the words ‘punch board’ but the statutes were amended by the insertion of the words in each section by the Forty-third General Assembly in 1929 (chapter 262).
“The Forty-seventh General Assembly (chapter 231, § 1) amended section 13198 by inserting a comma after the word ‘board’ and inserting thereafter the words ‘slot machine’, and amended section 13210 by striking the period and inserting the following: ‘or any other machines used for gambling, or any slot machine or device with an element of chance attending such operation.’ Section 2.
“The statutes therefore now include slot machines, and the State insists that this is a well known term applying to gambling devices, and not ordinarily used for mere vending machines. There is authority for the State’s contention. In the case of State v. Ellis, 200 Iowa 1228, 206 N.W. 105, and the case of State ex rel. Manchester v. Marvin, 211 Iowa 462, 233 N.W. 486, decided before the amendment to the statute, certain machines were defined as gambling devices, but evidence of use therefor was required. And to the same effect see State v. Doe, 221 Iowa 1, 263 N.W. 529. But the State contends that the rule as to evidence of use has been changed by the amendment to the statute by the Forty-seventh General Assembly, and the mere possession of a slot machine is made unlawful by such amendment, citing Parker-Gordon Imp. Co. v. Benakis, 213 Iowa 136, 238 N.W. 611, 614, which had reference to punch boards, and in which the court says: ‘The Legislature of this state, by incorporating the word “punch board” into sections 13198 and 13210 hereinbefore quoted, recognized a punch board as a gambling device.’ ”

In Commonwealth v. Logan, 172 Pa. Super. 365, 94 A.2d 99, the officers, under a search warrant, seized “4393 red punch boards and picture cards and different types of punch boards.” They were seized under authority of Section 604 of the Code, 18 P.S. § 4604 (Pennsylvania) “which classifies punch boards with slot machines as gambling devices and makes the assembling and manufacture of them a misdemeanor when intended to be so used.” That court, in sustaining the order of confiscation and destruction of the punch boards, says, 94 A.2d 1. c. 102:

“Appellant does not question the procedure; he contests the legality of the order on the single ground that the punch boards seized in the warehouse of the Logan Company were never actually used for unlawful gaming. The fact that they were not so used is not controlling under the circumstances; the important consideration is that many of the punch boards were per se gambling devices and on the basis of the evidence all were intended to be used for gambling. Since under the evidence the punch boards were gambling devices they are outlaw property and may be confiscated and destroyed although never actually used for the illegal purposes for which they were intended. Commonwealth v. Kaiser, 80 Pa.Super. 26. Cf. Urban’s Appeal, 148 Pa.Super. 101, 113, 24 A.2d 756. Commonwealth v. Handmore, 60 Dauph. Co. 416, is identical in principle with the phase of the instant case involved in this appeal. There Judge Woodside reviewed the law applicable to the forfeiture and destruction of similar punch boards as gambling devices. We are in entire accord with the holding of that case to the effect that the court may order the destruction of punch boards when they are shown to be gambling devices, regardless of whether the boards were set up or otherwise actually employed for unlawful gaming. In re Wigton’s Return, 151 Pa.Super. 337, 30 A.2d 352, on which appellant strongly relies is not controlling.”

Our statute, Section 563.374, supra, is more strict than Section 604, supra, as it classifies “punch boards” as a gambling device per se and authorizes seizure regardless of use.

In jurisdictions where slot machines, punchboards, etc., are expressly brought within the gambling statutes, the mere keeping or possession of such apparatus is declared a criminal offense, whether it is kept or used for gambling or not, and such apparatus is contraband. 24 Am.Jur. 423; Elder v. Camp, Sheriff, 193 Ga. 320, 18 S.E.2d 622; Hurvich v. State, 230 Ala. 578, 162 So. 362; Clark v. Holden, 191 Miss. 7, 2 So.2d 570; State v. Branney, 62 Wyo. 40, 160 P.2d 972; State v. Appley, 207 S.C. 284, 35 S.E.2d 835; Commonwealth v. Logan, 172 Pa.Super. 365, 94 A.2d 99; State v. Doe et al., 227 Iowa 1215, 290 N.W. 518; City of Wichita v. Stevens et al., 167 Kan. 408, 207 P.2d 386.

The appellants contend as a defense to the order of confiscation of the “punch boards” there was no proof that such “punch boards” were gaming devices or used in any gambling or gaming operation within the purview of Section 542.380 RSMo 1959, V.A.M.S. That section provides for the issuance of a search warrant and paragraph (1) of said section provides for the seizure of “Any gaming table, or other gaming device or apparatus used in gambling, [etc.]” There is nothing before this court on appeal as to validity of the search warrant or suppression of any articles taken thereunder. The return to the search warrant did show the seizure of many devices, some of which were classified as gambling devices under section 563.374, supra, and many which were not named therein. The lower court did not include many such items in its order of confiscation, presumably on the theory that there was no proof that they were gambling devices. But such ruling would not and does, not apply here as to the punchboards involved. Under that section (563.374) of the statute, there was no occasion to determine as a question of fact whether the punchboards were or were not gambling devices. That statute named and classified them as gambling devices per se and made them contraband and subject to confiscation. It would be an anomalous situation to require proof that a punchboard was a gambling device or used in gambling in the face of that statute which classifies and designates “punch boards” as gambling devices.

Appellants cite several cases in support of their contention that the state had to prove that the “punch boards” were being used in a gambling or gaming operation. Most of them construe what is now Section 542.-380 RSMo 1959, V.A.M.S. All of them were decided before Section 563.374, which was enacted in 1951, became a law. In State v. One “Jack and Jill” Pinball Machine, Mo.App., 224 S.W.2d 854, the court held that a pin ball machine was not a gambling device within the terms of Section 542.380. In State v. Gilmore, 98 Mo. 206, 11 S.W. 620, defendant was prosecuted ■for violation of Section 1547 RSMo 1879 prohibiting the setting up or keeping a gambling device. In State v. Herndon, 339 Mo. 283, 96 S.W.2d 376, defendant was charged, .under what is now Section 563.370, of setting up and keeping a crap table. In State v. Morris, 272 Mo. 522, 199 S.W. 144, defendant was charged under what is now Section 563.370, of setting up and keeping a poker table. In McCoy v. Zane, 65 Mo. 11, the Sheriff was sued for damages for destroying a roulette wheel and table which was confiscated under a statute entirely different from Section 563.374. In State ex rel. Igoe v. Joynt, 341 Mo. 788, 110 S.W.2d 737, Supreme Court prohibited Judge Joynt from enjoining the St. Louis Board of Police Commissioners from destroying a .gambling device known as “rotary merchandisers.” None of the above cases are controlling or are in point here.

Appellants contend that approximately thirty percent of the seized punchboards were plain or blank boards similar to Defendants’ Exhibit “A” and that said boards were not shown to have any connection with gambling or gaming and that their seizure was unwarranted and that they should be returned to them and not destroyed. Exhibit “A” is a board type punchboard. On the face of the board are five strips of holes outlined in red and five strips outlined in yellow. There are a total of one thousand holes filled with numbered foils. The top of the board, where the price of the punches and awards are usually shown, is blank. The only difference between this and other boards is that the printed sheet showing prices, prizes and awards has not yet been attached to the board. It is a punchboard nevertheless and it is a simple operation for the possessor to attach the printed directions furnished by the manufacturer or to attach his own schedule of prices, prizes and awards.

On the trial below, Sergeant Kleine testified that to his knowledge there were no plain punchboards taken. At request of appellants’ counsel, he rechecked at noon re,cess and later testified that none were taken to his knowledge. If some were taken, they were also subject to confiscation. They were still punchboards even if the directions had not been attached. In State v. Appley, 207 S.C. 284, 35 S.E.2d 835, l. c. 836, pin ball machines were ordered confiscated and the court found that “They were in varying degrees of disrepair and none was completely ready for operation,” yet such fact did not save them from destruction. The trial court did not find that there were any punchboards seized which were not subject to confiscation and the record here supports his ruling.

The order of the trial court confiscating and destroying the punchboards is affirmed.

WOLFE, Acting P. J., and RAY E. WATSON, Special Judge, concur.

ANDERSON, P. J., and RUDDY, J., not participating.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Irene DRAPER, Respondent, v. Louis C. DRAPER, Appellant.
    No. 23602.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Russell D. Roberts, Kirksville, R. M. Gifford, Green City, for appellant.
    Bruce Normile, Brown & Normile, Edina, for respondent.
   MAUGHMER, Commissioner.

This is an appeal from a judgment modifying a divorce decree. Irene Draper, movant, and Louis C. Draper, defendant, were married on December 3, 1946. Two children, L. C. Draper, Jr. and Lu Ann Draper, were born of the marriage. The marital troubles of this couple apparently became serious early in 1960. In any event, on March 17, 1960, they entered into a separation agreement and property settlement. Thereafter, Mr. Draper filed his petition for divorce and Mrs. Draper answered with a cross bill. On October 13, 1960, a decree of divorce was granted to Mrs. Draper under her cross petition. We shall set forth that portion of the decree which is involved in the modification order:

“The Court further finds from the evidence and by the agreement of the parties hereto that it would be for the best interests of the two minor children born of said marriage, L. C. Draper, Jr., three and one half years old, and Lu Ann Draper, two and one half years old, that said children should be kept and raised together and that custody shall be divided equally between the mother and father, each having custody for six months out of the year until further order of the court and that said six months periods shall not necessarily run concurrently but may be adjusted between the parties as shall best meet the welfare and needs of said children. It is further ordered by the court that while said children are in the custody of one parent the other parent shall have the right of reasonable visitation.
“The Court further orders and adjudges that Plaintiff pay to the Defendant the sum of $65.00 per month during the six months period out of each year that said children shall be in the custody of the Defendant, mother”.

On March 2, 1961, Mrs. Draper filed a motion to modify. On May 8, 1961, she filed her amended motion to modify. She therein alleged that the two children, L. C. Draper, Jr. and Lu Ann were then aged three and a half and two and a half years, respectively. She asserted that changes as follows had occurred since entry of the divorce decree: (1) She had recovered from the emotional upset from which she was suffering at the time of the divorce; (2) That she had adequate housing facilities in which to care for said children, whereas, she had inadequate housing at time of the divorce; (3) That the older child becomes nervous and ill when transferred from one home to the other; (4) That defendant husband, since the divorce, has committed moral misconduct and has remarried. Movant concluded by a statement that the best interests of the children would be served if full custody were given to her.

Evidence was heard on September 27, 1961. Mrs. Draper testified that she was quite upset and nervous when the divorce was finally granted, but that she had recovered, was again normal and could give proper full time care to the children. She stated that immediately after the divorce she and the two children lived in a three room apartment with her sister, that she and the two children slept in a double bed and the sister occupied a couch. However, at the time of the modification hearing Mrs. Draper had become owner of a four room modern house which afforded adequate housing facilities for her and the children.

At this hearing it appeared from Mrs. Draper’s testimony that she spent several months in California during 1960, after the date of the separation agreement, but before the divorce. The son L. C. Jr. stayed with his father on the farm. Some time during the spring or summer of 1960, Mr. Draper employed a Mrs. Lydia L. Hartman as his housekeeper and she lived in the house on the Draper farm continuously thereafter until November 17, 1960, when she and Mr. Draper were married. It will be noted this marriage occurred 35 days after the Draper divorce. There was no direct evidence of any immoral conduct as to the present Mr. and Mrs. Draper. However, we believe the evidence offered on this point was properly received even though some of the events took place prior to the divorce. Such evidence is received for whatever light it may cast upon the suitability of the homes now available for the children and because the guiding light in a child custody case is the welfare of the children. As stated by the Supreme Court en Banc. In re Wakefield, 365 Mo., 415, 283 S.W.2d 467, 473:

“We note (in connection with respondents’ claim of a fraudulent concealment by petitioner at the time of the original divorce decree) that upon the hearing of such a motion the court may consider not only changed facts and circumstances, but also material facts existing at the time of the decree but unknown to or concealed from the court. Armstrong v. Armstrong, Mo. App., 185 S.W.2d 845, and authorities there cited.”

The function of an appellate court in reviewing a motion to modify was clearly stated by this court in Watkins v. Watkins, 230 S.W.2d 778, 782:

“ft is the duty of this court, in a proceeding of this nature, to review the evidence and render such judgment as we think proper under the law and the evidence. In other words, we are not bound by the finding of the trial court. However, it is also the settled rule that the finding of the trial judge on motion to modify should not be lightly disturbed, and should, in fact, be deferred to, unless it is apparently in conflict with a clear preponderance of the evidence and discloses a manifest abuse of judicial discretion.”

The husband, L. C. Draper, did not testify. Both parties offered testimony as to good reputation. It appears that defendant is owner and operator of a 200 acre farm.

The trial court took the matter under advisement and on October 3, 1961, entered its judgment sustaining the motion and (1) Granted full care, custody and control of the two minor children to movant, Irene Draper “with right of visitation in respondent Louis C. Draper, at reasonable times, hours and places”; (2) Allowed $65 per month for 12 months in each year as contrasted to the same amount for six months in the divorce decree and (3) $250 as attorney fees.

Appellant husband on appeal says there was no showing of such a change of circumstances as would authorize change of custody and no proof whatever that the father had the financial ability to pay $65 per month for their support or was able to pay the $250 attorney fee.

At the time of the modification hearing Mrs. Draper was employed, earning about $40 per week. Baby sitters were caring for the children during her working hours. We believe that her improved housing situation, recovery from her emotional upset and the marriage of defendant to his housekeeper 35 days after divorce, amounts to a sufficient change in circumstances since the divorce as to justify reexamination as to child custody. These children are now nearing school age. Mrs. Draper lives in Kirksville and Mr. Draper in the country. Children generally, and except for good reason, should not be shifted every few months from one home to another. Usually, unless she is unfit or without a proper home, small children are placed in custody of the mother. The trial court found that the best interests of the children would be served if their full custody were placed with the mother with the father having reasonable visitation rights. We are unwilling to hold that in so doing the trial court abused its discretion, or that such decision is not substantially supported by the evidence. It appears to us, too, to be apparently for the best interests of the minor children.

The modification as to child support is not actually a change in the monthly allowance. Under both judgments the mother was allowed $65 per month while the children were with her. In the divorce judgment this was for six months out of each year and under the modification it was for 12 months. There was no appeal from the amount of the monthly allowance in the divorce case and we presume it was supported by the evidence there heard. Sixty-five dollars for the cost of furnishing support and maintenance for two small children is certainly not more than actually required. It would not seem to be in excess of the father’s means, since he owns and operates a 200 acre farm.

Mrs. Draper’s attorneys proved up expenses and time used in preparing and presenting the modification matter which justified the allowance of $250. The allowance appears to he reasonable.

No error appearing, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: CROSS, Judge.

text:
    Ivan BORMAN, Respondent, v. Clifford O’DONLEY, Appellant.
    No. 23616.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Don C. Carter, Sturgeon, for appellant.
    Hendren & Andrae, Jefferson City, W. Frazier Baker, Fulton, for respondent.
   CROSS, Judge.

This case was tried to a jury which returned a verdict awarding plaintiff Ivan Borman $7000.00 damages for losses allegedly sustained as a result of feeding his dairy cattle a quantity of silage, purchased from defendant Clifford O’Donley, which was unfit for animal consumption. The jury additionally awarded plaintiff interest in the sum of $1277.50. Defendant’s motion for a new trial was overruled on the condition that plaintiff file a remittitur of the interest. Plaintiff duly entered the remit-titur and the trial court entered judgment for plaintiff in the amount of $7000.00. Defendant has appealed.

The case was tried upon plaintiff’s amended petition which alleged, in essential substance, that defendant sold plaintiff certain silage; that at the time of the sale defendant knew that plaintiff intended to use the silage as feed for dairy cattle and represented and warranted, both expressly and impliedly, that the silage was suitable for that intended purpose; that plaintiff, relying on defendant’s representations and warranties, bought the silage from defendant for the price of $940.00; that thereafter plaintiff fed some of the silage to his dairy cattle; that the silage was not suitable for dairy cattle feed, as warranted, and contained a toxic substance that rendered it harmful and dangerous to the dairy cattle — a fact that defendant knew or had reasonable cause to know; that as a result, 53 head of plaintiff’s dairy cattle died, the value of the other cattle was depreciated, the milk production from his dairy herd was reduced, and, that he had paid out $940.00 for silage of no value.

The case was submitted to the jury under instructions substantially incorporating the theory of recovery alleged in plaintiff’s petition.

One of defendant’s contentions is that the trial court erred in overruling his motion for a directed verdict at the close of all the evidence because there was no substantial evidence on which a verdict could be had. It is elementary that in determining such issue we must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiff’s case. La Plant v. E. I. Du Pont De Nemours and Co., Mo.App., 346 S.W.2d 231. Reviewed in accordance with the foregoing rule, the evidence tends to establish facts and circumstances which we here set out.

Plaintiff owned and resided on a Call-away County farm where he maintained a nerd of registered Holstein dairy cattle, which, in 1954, consisted of approximately one hundred calves, heifers, cows and bulls. He was engaged in the dairy business and ■«(as milking about 59 cows in that enterprise. During 1954, animal feed was in short supply because the summer was hot and dry and there was little pasturage. As a result it became necessary for him to purchase feed for his dairy herd.

Defendant also owned and lived on a farm, near plaintiff’s. In 1954 he planted 300 acres of corn that failed to mature because of the drought. He cut the crop and put it in a silo on his farm. He additionally acquired an unmatured corn acreage from a neighbor, Clay Moore, which he ensiled and put in a trench silo on Moore’s farm. Some time prior to October 28, 1954, defendant learned that the Department of Agriculture of the University of Missouri had issued warnings to the effect that there was danger of nitrate poisoning from feeding'silage made in 1954 from corn grown on heavily fertilized soil. He took a sample of the Clay Moore silage to the Department of Agricultural Chemistry of the University of Missouri for “evaluation”. Dr. Muhrer, head of the Department, and Dr. Garner, Associate Professor of Agriculture, made a qualitative analysis of the silage, after being told by defendant that the field from which it came had been heavily fertilized, and found that “The nitrate content was positive”. Dr. Muhrer testified that he told defendant the silage was potentially dangerous. Defendant testified, “He (Dr. Muhrer) told him it had some nitrate and he said it could be fatal”. Dr. Muhrer then sent defendant to Dr. Gehrke, Professor of Agricultural Chemistry in charge of the University’s Station Laboratory, to have a quantitative analysis made of the silage sample in order to find out the exact amount of its various elements. At that time, Dr. Muhrer told defendant, “When you find out the exact amount of the various constituents of the ration come back and we will give you further information”. Dr. Gehrke made the analysis, ascertained the water, protein and nitrogen nitrate content of the sample, and informed defendant of the result by a letter dated October 28, 1954, in which Dr. Gehrke made no evaluation of the effect or significance of the nitrogen nitrate content. Defendant never returned to Dr. Muhrer or Dr. Garner after receiving the quantitative report from Dr. Gehr-ke.

A short time after receiving the report of Dr. Gehrke’s test, and at plaintiff’s farm, defendant proposed to sell plaintiff the silage from the Clay Moore farm. A few days later, plaintiff went over to defendant’s place to discuss the transaction further. He asked defendant whether the silage had been tested. Defendant said that he had had it tested at the University and that the test showed it was low in nitrate and all right to feed. Plaintiff inquired if fertilizer had been applied to “that field” and defendant told him there had been none. Defendant offered to show plaintiff “the paper” (the Gehrke test), but plaintiff declined and said, “Unless I had some help with it I didn’t think I was chemist enough that I could understand everything that was said on it”. Plaintiff testified, “If he told me the feed was O. K., it was all right with me. He was a neighbor of mine and I would take his word for it”, and, “I told him, and I presumed he knew, that it was going to be fed to my dairy herd”. Defendant did not divulge to plaintiff that Dr. Muhrer and Dr. Garner had tested the silage and had told him that it contained nitrate, was potentially dangerous and that it could be fatal. Plaintiff bought the silage and paid defendant $940.00 for it. Defendant admitted that when the sale was made, he was aware of the dangers of nitrate and knew plaintiff was going to feed the silage to his cattle.

Plaintiff began to haul the silage and feed it to his cattle in the latter part of December, 1954, or the first part of January, 1955. Prior to that time the dairy herd was in good health, in “excellent condition”. They “ate normally”, “looked like typical Holstein cattle”, and were “very shiny and not rough”. Their (milk) production was “good to very good”. They were not having any trouble breeding and dropping their calves. Mr. Caldwell, the official tester for the University of Missouri sponsored Dairy Herd Improvement Association, testified from his records that plaintiff received rather good (milk) production from his cows. Total milk sales in September, October, and November of 1954 amounted to $10,146.38.

After feeding the silage through January, 1955, the cattle began to look in bad condition. Their hair became long, shabby, dull and rough, and their eyes appeared dull. They lost weight and their ribs showed. They appeared weakened and were listless. They ate with ravenous appetites, and were fed large'amounts of grain and hay as well as the silage, but became “worse and worse”. “The milk production was dropping all the time”, although “their appetites was increasing all the time”. Their milk production started to get bad — “sort of like a mastitis” — and “dropped way down to nothing”. After these conditions developed in his herd, plaintiff took a sample bucket of the silage to the University to have it tested. Dr. Muhrer made the test and informed plaintiff that the silage contained nitrate and that it was dangerous to use. ' Plaintiff then (about the middle of February, 1955) stopped feeding the silage to his cows. He also requested of defendant that he return the purchase price of the silage. Defendant refused to do so.

Because feed was short plaintiff continued to feed limited amounts of the silage to his heifers until the middle of April, at which .time he entirely discontinued feeding the silage after having fed approximately one-half of it. The condition of the herd became worse. 'Cows that formerly had no difficulty in calving gave birth to calves that died shortly after their delivery. Plaintiff lost a number of calves in the early part of 1955, and again a large number of calves in the fall of 1955. Also in 1955, plaintiff lost a cow. In 1956 he lost additional calves and a number of cows that died in the forepart of the year. Plaintiff testified that the reasonable market value of the dead cattle was $18,500.00 and that the remaining herd was reduced in value to the extent of $16,000.00 by the effects of the nitrate in the silage. Also, it was shown by the records of the Dairy Herd Improvement Association that milk production of the herd declined by 79 per cent. Plaintiff testified his loss thereby was $15,000.00. Eventually plaintiff sold the herd, sold the farm and moved away.

Plaintiff testified that he was an experienced dairyman, familiar with the diseases of dairy cattle, and that he knew his sick cattle, including those that died, were afflicted with nitrate illness, because he knew the symptoms. Dr. Muhrer testified as an expert in the field of nitrate and its effects. He stated that in dry years, when no ears of corn were produced, the nitrate would stay in the stalk. It is then dangerous because it is in a toxic form. One of the first symptoms of nitrate poisoning is “a very dead cow” if the nitrate concentration is sufficient. In nitrate toxicity the cow slowly starves to death because of a Vitamin A deficiency which causes a decrease in milk production and in the general thriftiness of the animal, followed by staggering and loss of eyesight, and eventually by death— “it might be a year or two years”. In answer to hypothetical questions, generally incorporating the facts herein set out, Dr. Muhrer stated that in his opinion the cause of the illness and death of plaintiff’s cattle and the decrease in milk production was due to the high nitrate content of the silage. Plaintiff had autopsies performed on several of the cattle that died. The results indicated that the animals had starved to death from a deficiency of Vitamin A, caused by the toxic effect of nitrates.

The substance of defendant’s first point is that the trial court should have directed a verdict in his favor because there was no credible evidence to permit a finding that the sickness and death of plaintiff’s cattle resulted from eating the silage. Defendant admits there is evidence that plaintiff’s cattle ate the silage and that there was nitrate in it, but argues that a jury verdict would be based on “guesswork, surmise and conjecture”, because there was “never any autopsy or post mortem made on any of the ■cows”. That argument fails because it is established by plaintiff’s testimony and by documentary evidence in the form of an autopsy report by Dr. Kentner, of the Missouri University School of Veterinary Medicine, that plaintiff had autopsies performed on some of his dead cattle and that the results thereof showed the conditions we have heretofore noted in our narration of the •evidence. Further arguing the point, defendant suggests other matters of defense that are clearly not for our consideration but were for the jury to determine. Paraphrasing the language of Judge Stone in La Plant v. E. I. Du Pont De Nemours and Co., Inc., Mo.App., 346 S.W.2d 231, (a case involving the death of cows from alleged nitrate poisoning), we deem it sufficient to say that “we are satisfied that, upon the record presented, the issue as to whether plaintiff’s cows died of nitrate poisoning from eating (the silage) was for the jury and may not be ruled as a matter of law.”

Defendant’s second assignment charges the court with error in giving plaintiff’s verdict directing Instruction No. P-1, the text of which is as follows:

“The Court instructs the jury that if they find and believe from the evidence in this case that on or about November 12, 1954 the Plaintiff, Ivan Borman, was the owner of a herd of dairy cattle in Callaway County, Missouri and that the Defendant, Clifford O’Donley, sold to Ivan Borman silage and that Clifford O’Donley at the time of the sale knew that this silage was to be used for the feeding of Ivan Borman’s dairy cattle, then you will find that there was an implied warranty on the part of Clifford O’Donley that the silage was fit for the feeding of Ivan Borman’s dairy cattle, or,
“If you find and believe from the evidence that at or before the sale of the silage Clifford O’Donley represented to Ivan Borman that this silage was fit for the feeding of Ivan Borman’s dairy cattle you will find'that there was an express warranty on the part of Clifford O’Donley that the silage was fit for the feeding of Ivan Borman’s dairy cattle, and,
“If you further find that there was either an implied warranty or expressed warranty on the part of Clifford O’Donley that the silage was fit for the feeding of Ivan Borman’s dairy cattle and if you further find and believe from the evidence that Ivan Borman relied upon such warranty and that this silage was not in fact fit for the feeding of Ivan Borman’s dairy cattle in that it contained nitrates that caused harm to Ivan Borman’s dairy cattle as a direct and proximate result, then,
“You will find the issues for the Plaintiff, Ivan Borman, and against the Defendant, Clifford O’Donley”.

Defendant first argues that the instruction is erroneous in that it permitted the jury to find for plaintiff on either an express warranty or an implied warranty, or both, as to the fitness of the silage for consumption by dairy cattle, when there is no implied warranty in this state that corn silage is fit for that intended purpose. Defendant concedes that plaintiff was entitled to a submission on the basis of an express warranty. Therefore, we are presently concerned only with the question of whether or not, under Missouri law, there is an implied warranty in the sale of corn silage that such product is fit for animal consumption.

It has long been an established rule in Missouri that in a sale of food for immediate human consumption there is generally an implied warranty that the food is wholesome, is fit for the purpose, and is of merchantable quality. Midwest Game Company v. M. F. A. Milling Co., Mo.Sup., 320 S.W.2d 547; Carter v. St. Louis Dairy Company, Mo.App., 139 S.W.2d 1025. In two decisions the Supreme Court has extended the foregoing rule so as to include an implied warranty in the sale of food for animals. In Midwest Game Co. v. M. F. A. Milling Co., supra, the -Supreme Court said: “Defendant has pointed out that in some states it has been held that an implied warranty of fitness does not attach to the sale of food for animals. The cases of Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W.2d 869, and Royal Feed & Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282, so hold. To the contrary, however, see Judd v. H. S. Coe & Co., 117 Conn. 510, 169 A. 270, and Larson v. Farmers’ Warehouse Co., 161 Wash. 640, 297 P. 753. It is our view that an implied warranty should at least attach in cases like the instant one where the food is not in its raw state but has been processed and packaged by the manufacturer.” In accordance with the quoted statement, the court held that an implied warranty of fitness accompanied the sale of processed and packaged fish food. In Albers Milling Co. v. Carney, Mo.Sup., 341 S.W.2d 117, the Supreme Court ruled that there was an implied warranty that processed turkey feed sold in sealed bags was wholesome and fit for use as feed for turkeys.

The Midwest and Albers cases decided one proposition: that there is an implied sales warranty as to the fitness and wholesomeness of processed animal foods. In both cases, the Supreme Court refrained from deciding whether the implied warranty doctrine attached in the sale of animal food in its raw state. It is conceded by defendant “that a seller of proc-

essed animal feed is liable as on an implied warranty of fitness, etc.”

Defendant assumes in his brief that corn silage is a “raw agricultural product” and urges this court to interpret the Mlidwest and Albers opinions as holding, at least by implication, that ,no implied warranty would accompany a sale of animal food “in its raw stage”. Plaintiff strongly contends that corn silage is not a raw agricultural product, but is a processed product — a food for animal consumption that comes within the specific class of products which carry the implied warranty. Consequently, the first subject of our inquiry will be as to the nature of the silage — whether it is “in its raw state” or is a processed product.

The word “raw” is defined by Webster’s New International Dictionary as “In, or nearly in the natural state; little changed by art; unwrought; as, raw material”, and by the Funk & Wagnalls New Standard Dictionary as “In a natural condition, unmodified from a crude state; ”.

The word “processed’ is derived from the transitive verb “process” which is defined by Webster’s New International Dictionary as “to subject to some special process or treatment. Specif.; a. to heat, as fruit, with steam under pressure, so as to cook or sterilize, b. To subject (esp. raw material) to a process of manufacture, development, preparation for the market, etc.; to convert into marketable form, as livestock by slaughtering, grain by milling, cotton by spinning, milk by pasteurizing, fruits and vegetables by sorting and repacking; — in past part, often distinguished from raw/’. The latter definition is quoted in numerous decisions from various jurisdictions.

In Zeigler v. People, 109 Colo. 252, 124 P.2d 593, the court stated that “processing” is some change made in the natural product after it is grown. In Corn Products Refining Co. v. Federal Trade Comm., C.C.A. 7, 144 F.2d 211, it was said, “(processing) is an act or a series of acts with regard to the subject matter in its transformation into a different state or a different thing. It effectuates change in form, contour, chemical combination, physical appearance or otherwise by artificial or natural means”. In Gulf Oil Corp v. City of Philadelphia, 357 Pa. 101, 53 A.2d 250, 172 A.L.R. 302, it was held that “ [processing is a flexible term and may refer to either chemical or physical changes”. The word “process” is a mode of treatment of certain materials to produce a given result. France Co. v. Evatt, 143 Ohio St. 455, 55 N.E.2d 652. And, a “process” is said to be a mode, method or operation, whereby a result or effect is produced. Kelley v. Coe, 69 App.D.C. 202, 99 F.2d 435. In Puerto Rico Tobacco Marketing Cooperative Association v. McComb, Dist. of Puerto Rico, C.C.A. 1, 181 F.2d 697, it was held that “the stemming and fermenting of leaf tobacco are operations which change the form and nature of the tobacco and is a processing operation” since the process of fermentation “produces a chemical change in the tobacco by making it milder and sweeter”. In the course of its opinion, the court said: “There can be no doubt that Indian corn ceases to be in its natural state as soon as it is ground”.

For a definition of “silage” we again look to Webster’s New International Dictionary. That authority states that silage is “fodder (as of field corn, sorghum, grass, or clover) either green or mature converted into succulent winter feed for livestock through processes of fermentation usually by being cut fine and blown into an airtight chamber (as a silo) .where it is compressed to exclude air and where it undergoes an acid fermentation that retards spoiling — called also ensilage”. The same lexicon defines “ensile” as “to prepare (fodder) usually by chopping and storing so as to exclude air by compression in a tight silo or pit often with additives (as certain acids, preservatives, or carbohydrates) so as to induce conversion to silage”. “Ensilage” is defined as “the process of preserving fodder by ensiling”.

A comprehensive article on “Silage” is contained in Chamber’s Encyclopaedia, 1959 Edition, from which we quote the following excerpt:

“SILAGE is the product obtained by the carefully controlled fermentation of a green fodder crop; if it is well made it should contain at least 80% of the nutrients in the original crop. The process is spoken of as ensilage or silage-making and the container in which it is carried out is a silo. Silos may vary from a pit or depression in the ground to special structures called tower silos made of wood, metal or concrete and capable of holding over 200 tons of silage. Simple portable silos have been used on small farms.
“During fermentation heat develops : if this is too great the silage loses in feeding value and digestibility. It is therefore necessary to restrict the amount of air present to keep the temperature below 100° F by packing the green crop carefully and trampling it thoroughly. It is also necessary to ensure the formation of acids at an early stage, to prevent slimy, evil-smelling silage. The acidity is due to the formation of lactic acid by the fermentation of sugary or carbohydrate material. To ensure an adequate supply of fermentable material the crop would have to be cut at an advanced stage of growth: if young, leafy, protein-rich material is to be preserved (and this is the best food for stock) some stimulus has to be given to the formation of lactic acid. If sugar or, preferably, molasses is added an active fermentation takes place and preservation is efficient. Alternatively hydrochloric or sulphuric acid or acid mixtures may be added direct. A weak solution is sprinkled on during the filling of the silo. This has proved most efficient though in many countries distribution of the concentrated acid to farms has proved impracticable and uneconomic, and the slightly less efficient molasses process has been employed.
“Great care has to be taken in sealing the mass and a top layer of soil is usually added to exclude air and rain and to weigh the material down. If this is not done there may be heavy losses due to wastage at the edges. Silage is sometimes made in a stack, but this calls for great skill as air can easily enter at the edges, resulting in a high temperature with consequent losses.
“One advantage of silage is that the original crop can be cut at an early stage when it is rich in protein and mineral matter and when conditions are not suitable for its preservation as hay. Another advantage is that silage-making is independent of the weather. The retention of the crop’s vitamin content makes silage a good food for young stock and dairy cattle, the vitamin A value being transmitted to the milk”.

We derive further information on the subject of silage, and the processes involved in its making, from official State Bulletin 696 published by the Agricultural Experiment Station of the University of Missouri, which states, in part, as follows:

“Silage making involves bacteriological and chemical changes. Acid production which prevents the growth of undesirable bacteria and prevents rotting (putrefaction) is the most important. Good quality silage is characterized by a mild, pleasant aroma, slightly acid taste, green color, and freedom from mold and sliminess.
******
“In order to understand how the ensiling process helps preserve nutrients let us first consider what happens in the silo.
“When a green forage is well compacted in- a silo the living plant cells continue to respire or breathe for a short time, perhaps five hours. During this time the oxygen entrapped in the silo is used up and carbon dioxide is given off. It is also during this period that heat is produced, the amount being related to the available oxygen and thus to the size of the particles and degree of compression. After the oxygen is used the second and most important phase of silage making begins. This involves lactic acid fermentation and is carried on by lactic acid bacteria which attack the soluble carbohydrate in the plant cells and convert it to lactic acid and other organic acids. This phase is usually complete in two or three days and at the end of this period the lactic acid content is about one to 1.5 percent of the fresh material.
“The mass is quite acid and has a pH of about four. When this amount of acid has been formed, fermentation is checked and after two to three weeks practically all action has ceased. If fermentation has been successful and air is excluded the silage will then keep indefinitely”.

We learn additionally from the testimony of Dr. Muhrer that silage making involves a chemical reaction which converts “cyanal glycaucides” to “hydrogen cyanide”, and “an enzyme type reaction”.

It is convincingly demonstrated by the foregoing authority that the making of corn silage is an operation of considerable complexity and that the silage itself is the product of various processes — some of which involve human effort and skill— others, the phenomena and reactions of nature. We observe: (1) the process of cutting or shredding the fodder — transforming the whole plant from its raw or natural state into a finely chopped mass; (2) the process of filling the silo with the material and excluding the air; (3) the process of compressing the mass; (4) the process (probably optional) of adding chemical substances or sugars to stimulate fermentation; (5) the process of developed heat; (6) the process of fermentation; and (7) the processes of “bacteriological and chemical changes”. The end result of all the foregoing is a finished food product bearing little resemblance to the raw plant from which it evolved — vastly changed in its physical and chemical properties.

What has been stated above, in reference to silage generally, is applicable specifically to the silage in this case. It is shown by the evidence or reasonably inferable therefrom that all the operations and reactions described by the authorities as incident to the production of silage were involved in the making of the silage defendant sold to plaintiff (except that there is no testimony to show whether its fermentation resulted naturally or was aided by additives).

It is inescapably our conclusion that corn silage is a processed animal food. We specifically rule that the corn silage involved in this case was not a raw agricultural product in its natural state, but that it was a processed product intended for use as animal food. Consequently, an implied warranty that it was fit and wholesome for that purpose accompanied its sale. In the absence of any necessity for so doing, we abstain from determining whether the implied warranty attaches in the sale of raw agricultural products intended for consumption as animal food. In conclusion, we rule that Instruction No. 1 is not erroneous for the reason asserted in this assignment.

Defendant challenges the propriety of Instruction P-1 on other grounds,, arguing first that the instruction is erroneous in that it failed to require a finding that plaintiff’s cattle ate the silage. The contention is without merit. There was no dispute or controversy as to whether the silage was fed to plaintiff’s herd. When defendant was asked if he knew plaintiff was going to feed the silage to his cattle, he testified, “Sure, I didn’t know anything other for him to do with it.” The record is replete with testimony that the cattle ate the silage. It is elementary that when a particular fact is not treated as a real disputed question, the trial court may assume the existence of such fact and omit it from the instructions. See the numerous cases so holding cited and digested in 27 Mo. Digest, Trial,

Defendant further insists that Instruction P-1 is erroneous because it failed to require a finding that feeding the silage caused the damage to plaintiff’s cattle, and because it assumes the silage contained nitrates and that it caused harm to the cattle. These complaints are hypertechnical and have no merit. A fair reading of the instruction discloses that it did not assume the facts above referred to, but required a finding thereof by the jury. The test of the correctness of an instruction depends on how it will be understood by average men who compose juries. Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541. It is our opinion that reasonable men sitting as a jury would interpret Instruction P-1 as requiring them to find the existence of the facts in question before they were permitted to return a verdict in plaintiff’s favor.

Defendant complains that it was error for the trial court to refuse his offered Instruction No. D-l, which told the jury, in substance, that a seller of raw agricultural products does not impliedly warrant that such products are fit for animal consumption, and directed the jury to return its verdict in favor of defendant if they found that defendant had not expressly warranted the silage, and further found that the silage was a raw agricultural product and that defendant had no knowledge the silage was unfit for animal consumption. The trial court was justified in refusing the instruction. The law of implied warranty in this case relates to processed animal food — not raw agricultural products. To have given the instruction would have been misdirection and error.

Defendant next insists that prejudicial error was committed when the trial court permitted plaintiff’s counsel to state that defendant had taken a change of venue from the county where the case was originally filed, and to read defendant’s application therefor to the jury. We believe defendant has no legitimate ground of complaint. The statement of plaintiff’s counsel and the introduction of the change of venue application in evidence were invited by remarks of defendant’s counsel made in his opening statement, as follows : “Now for some reason or another, which I don’t know, that case hung fire for nearly four years, not any trial, nothing done about it at all for nearly four years”. When the trial judge overruled defendant’s objection to the introduction of the change of venue application, he made the following statement: “The purpose, as I understand, is to show why the case is just coming to trial and will have some bearing on why the case has been postponed from time to time”. We will not disturb the trial court’s ruling in a matter resting primarily within his sound discretion.

Defendant’s final contention is unique in that it is based on the fact that the jury awarded a small verdict. We quote the text of the point: “The evidence clearly shows that the defendant did not have a fair and impartial trial of the cause, and the verdict is against the greater weight of the credible evidence in the case. The verdict is purely a compromise verdict, and is not justified under any theory”. Defendant says, in argument, “The very fact that the jury brought in a verdict for only $7000.00 is conclusive proof that it is a compromise verdict, and not based on the evidence”; and, “if the jury had felt that plaintiff was telling the truth about the great loss to his dairy herd, the verdict should have been $26,000.00 or more”. Defendant devotes the remainder of his argument to matters of defense addressable only to the jury. There is nothing in the record of the case to indicate that the verdict of the jury was compromised. It is true that the verdict is small, and that a much larger one would have been justified by the evidence touching plaintiff’s loss and damage — a fact that gives defendant no cause to complain. The complaint would belong to plaintiff if he had chosen to assert it.

The judgment is affirmed.

All concur.

      . The following cases hold that a seller of feed for consumption by animals is hound by an implied warranty that the product is fit for the intended purpose: Bradford v. Moore Brothers Peed & Grocery, 268 Ala. 217, 105 So.2d 825 (stock food for cattle); French v. Vining, 102 Mass. 132 (hay for cows); Dougherty v. Lee, 74 Cal.App.2d 132, 168 P.2d 54 (hay for cows); Doane v. Farmers Cooperative Co., 250 Iowa 390, 94 N.W.2d 115, 81 A.L.R.2d 128 (corn for cattle); Seaton Ranch Co. v. Montana Vegetable Oil & Feed Co., 123 Mont. 396, 217 P.2d 549 (oil cake pellets for sheep); Libke v. Craig, 35 Wash.2d 870, 216 P.2d 189 (hay for horses); International Milling Co. v. Jernigan, Tex.Civ.App., 191 S.W.2d 526 (bran for hogs); McBride v. Farmers’ Seed Association, 248 Ky. 514, 58 S.W.2d 909 (chicken feed); Thatcher Milling & Elevator Co. v. Campbell, 64 Utah 422, 231 P. 621 (wheat for chickens); Larson v. Farmers’ Warehouse Co., 161 Wash. 640, 297 P. 753 (hay for cows); Judd v. H. S. Coe & Co., 117 Conn. 510, 169 A. 270 (feed for horses).


author: BROADDUS, Judge.

text:
    Freda E. KING, Plaintiff-Respondent-Appellant, v. NEW EMPIRE INSURANCE COMPANY, a Corporation, Defendant-Appellant-Respondent.
    Nos. 23614, 23618.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Frank P. Barker, Frank P. Barker, Jr., Wayne F. Caskey, Jr., Barker, Fallon, Jones & Barker, Kansas City, for appellant.
    James J. Wheeler, Keytesville, for respondent.
   BROADDUS, Judge.

This is an action based upon a policy of accident insurance. Plaintiff recovered a verdict and judgment for $2000, the indemnity provided for in the policy, and from that judgment, defendant has appealed. The trial court refused to submit the issue of vexatious refusal to pay to the jury and from that order plaintiff has appealed.

The defendant company insured Emery E. King “against loss resulting directly and independently of all other causes from bodily injury sustained during the term of this policy and effected solely through accidental means.” It is admitted that insured died on October 17, 1960; that the policy was in full force and effect, and that plaintiff Freda E. King is the named beneficiary.

On October 17, 1960, at about 4:30 p. m. a Santa Fe freight train enroute to Kansas City approached the trestle bridge across Grand River at Dean Lake, Chariton County, Missouri, at 50 -miles per hour. There is approximately a one and one-half mile straightway approach to this bridge from the east. The main double-track lines of the Santa Fe Railroad run across this trestle in a generally east-west direction.

The plaintiff, after offering in evidence the policy of insurance and a portion of the death certificate, called to the witness stand Mr. David J. Edwards. Mr. Edwards testified that he resided in Bosworth, Missouri, where he was engaged in the undertaking and furniture business; that he had known Emery E. King for approximately 15 years; that in the afternoon of October 17, 1960, at around 2 o’clock Mr. King came into the witness’ store; that “he (King) said that if he was transferred from Snyder, on the section, to Bosworth, he was going to buy a home there which he had been looking at that day and he was interested in buying some furniture. And he said he didn’t intend to drive back and forth because it was too far.” When asked how Mr. King “appeared with reference to health” the witness replied: “Well, he was all right as far as I know because he was just like he always was when he came into the store to buy from me, he was the same.” The witness further testified that about 4:50 p. m. that day he was called by the Santa Fe operator from Carrollton to go out and pick up a man that was hurt on the Grand River Bridge; that when he got to the bridge he “found Mr. King was dead * * * the body was warm, limber * * and he had no -head to speak of except a little bit here (indicating), it was all, I never saw any of the rest of it;” that a Santa Fe train was standing there, and “there was a pair of oars just a short distance from Mr. King’s body.”

Plaintiff also called as a witness Mr. Chester McAfee who resided at Mendon and was a track supervisor for the Santa Fe Railroad. He testified that he had known Mr. King for about 20 years, and was acquainted-with the latter’s habits in connection with fishing; that “he (King) kept a boat at the Grand River Bridge”; that the boat was kept “on the east side” of the bridge and “the oars on the west side”; that “ordinarily he (King) drove in on the west side of the bridge and picked them (the oars) up, he ordinarily went across the bridge”; that the train which struck King was “an extra” or “nonscheduled” train.

On behalf of defendant Mr. L. B. Hawkins testified that he was the engineer of the freight train; that when the engine was “roughly five, six or seven hundred feet” from the bridge “I looked down there and I seen something and I thought it was just a dog; I whistled to scare the dog off. It never moved. Well, I got about eight car lengths (400) feet of it and I see it was a man, and I whistled again and he never moved and then I applied the brakes; it looked to me like he was laying down between the two main lines with his hands up like this (indicating) and his head on the rail.” On cross-examination he testified-that it was a “hazy day”; that the bridge over Grand River has steel beams across its top and sides which cause shadows to be cast, and makes it difficult to distinguish an object from a shadow; that he did not give a series of short whistles which is customary wb,en a person is seen on the track for the reason he “didn’t recognize it being a man in time to do so.” “Q. And all you could do was put on the brakes, you didn’t have time to do nothing ? A. That is what I did, yes. Q. So you just got a glimpse of him when you put on the brakes, is that right? A. Yes, sir.”

The testimony of the fireman, Jessey Payne, was substantially the same as that given by Mr. Hawkins, the engineer.

Defendant’s first point is that the trial court erred in overruling its motion for a directed verdict at the close of all the evidence.

In passing upon this contention we are bound by certain well established rules which are clearly set out in the case of Winter v. Metropolitan Life Ins. Co., 129 S.W.2d 99, 103 (Mo.App.) as follows:

“It has been held by our Supreme Court that the trial court should never withdraw a case from the jury unless all reasonable men in the honest exercise of their impartial judgment would draw the same conclusion from the facts; and that, under conflicting evidence sufficient to support a verdict for either party, there can be no directed verdict. Parrent v. Mobile & O. R. Co., 334. Mo. 1202, 70 S.W.2d 1068. It has also been held that a demurrer to the evidence can be sustained only when the facts and the evidence and the legitimate inferences therefrom are so strongly against the verdict as to leave no room for reasonable minds to differ. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 953, 954. See also Linderman v. Carmin, 255 Mo. 62, 164 S.W. 614, 615.”

In the case of Meadows v. Pacific Mut., Life Ins. Co;, 129 Mo. 76, 31 S.W. 578, the body of the deceased was' found mangled on a railroad track. In holding that the plaintiff made a submissible case, the court said :

“The plaintiff showed, beyond controversy, that Daniel Meadows died by violent injuries, which were plainly visible upon his body; that the nature of these injuries left no doubt that they were the sole cause of his death; and proper proofs were made. Here he rested. He had made a prima facie case, unless we are required to presume that, because he was killed by being run over by cars on a railroad track, he was voluntarily exposing himself to unnecessary dangers, and was violating his agreement in regard to being upon a roadbed of a railroad, within the meaning of the policy. Such a presumption would destroy the presumption indulged by the law that Meadows was, at the time, exercising proper care for his safety.” The Court goes on to say (1. c. 583, 584) :

“It follows that, by invoking these presumptions, Plaintiff not only established a death by violence, but that his intestate was in the exercise of ordinary care and prudence when he met his death, and that it was caused by accident. Nor is this presumption rebutted by the unexplained fact that his body was found mangled upon a railroad track.”

As was said by this court in Klinginsmith v. Mutual Benefit Health & Accident Ass’n., 228 Mo.App. 229, 64 S.W.2d 705, 706: “As to the defendant’s assignment of error as to the court’s refusal to give peremptory instruction, we conclude that, as it was clearly shown that the death was violent, it is for the jury to determine from all the facts and circumstances in evidence as to whether or not the death was accidental.”

As said in Mayhew v. Travelers’ Protective Ass’n., 52 S.W.2d 29, 32 (Mo.App.): “It is well-settled law that in an action on an accident insurance contract, such as is in suit here, the burden is on the plaintiff to show that the death of insured resulted from an accident. But by showing that the cause of death was violent, the plaintiff establishes prima facie that the death was accidental.”

In the case of Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56, the case chiefly relied upon by defendant, the insured was operated on for hernia. There was no evidence of any mischance, slip or mishap nor of any unexpected, unusual, or unforeseen occurrence during the performance of the operation, but the insured died 5 days later from obstruction of the bowel. The court held plaintiff must show something unforeseen, unusual, or unexpected and unintended occurred during the progress of the operation and that this something caused insured’s death.

The Caldwell case is clearly not in point with the case at bar, the most obvious difference being the Caldwell case was not concerned with violent death. Also, in the Caldwell case, the insured intended to be operated on, and died as the natural (but not foreseen) result of this act.

The case of Murphy v. Western & Southern Life Ins. Co., 262 S.W.2d 340 (Mo.App.), also relied upon by defendant is not in point. The insured’s death was the result of his taking an excessive amount of medicine, which had been prescribed by his physician. The insured knew what he was taking and the only thing unexpected was the result. Thus it was not an accident within the terms of a policy insuring against injury by accidental means.

And the case of Pettit v. United Benefit Life Ins. Co., 277 S.W.2d 857 (Mo.App.), does not support defendant’s contention. In that case the court held that plaintiff did not prove a fall, and also failed to prove that death resulted from a fall.

Other cases cited by defendant, by reason of their facts, are also readily distinguishable from the instant case.

Defendant in its brief makes much of the testimony of the engineer and fireman that they did not see the deceased move prior to being hit by the train. Both testified that visibility was poor, with shadows on the bridge; that they first thought they saw a dog, and did not give the required whistles to alarm a person on the track. This testimony is far from convincing and the jury could well have found that they were not keeping as careful a look-out as they indicated. In any event, this testimony is not binding upon plaintiff. This because of the settled rule that the jury is the sole judge of the credibility of the witnesses and the weight and value of their evidence and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence is uncontradicted and unim-peached. Greenwood v. Wiseman, 305 S.W.2d 474 (Mo.Sup.)

Beyond dispute the evidence established that the deceased on the day of his death was hit by a freight train and his head torn from his body. He was in apparent good health, discussing plans for the future, less than three hours before his death. Apparently he was crossing the bridge, as had been his habit, to fish. The oars to his boat were found lying near his warm, limber body.

Following the rule that in deter-ming whether plaintiff made a submissible case for the jury we are to view the evidence and the legitimate inferences to be drawn therefrom in the light most favorable to plaintiff, compels us to rule the point against defendant.

Defendant next contends that the court erred in admitting in evidence the following portion of the death certificate:

“18. Cause of death
Part 1. Death was caused by:
(A) Immediate cause— head injury.”

Defendant asserts that this entry was a conclusion of the coroner. The court sustained defendant’s objection to 18 “(b) was hit by Santa Fe- train”, and “(c) on Santa Fe Bridge over Grand River”, and also to 20 “(a) accident” and (b) “Hit by Santa Fe Freight train on Grand River Bridge.”

Section 193.170 V.A.M.S. provides that: “Certificates filed within six months after the time prescribed therefor shall be prima facie evidence of the facts therein stated.”

In the case of Crollard v. Northern Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375, this court held that the presumption of regularity obtains in respect to death certificates.

In the case of Boring v. Kansas City Life Ins. Co., 274 S.W.2d 233 (Mo.Sup.) the plaintiff introduced in evidence the death certificate, which recited the cause of death to be “(a) Shot through head by 16-gauge shot gun” and “(b) also two other shots into abdomen by a 16-gauge shot gun.” The court in commenting on the death certificate said:

“As hereinbefore stated, plaintiff relied upon the well grounded doctrine that the certificate of death alone raised a legal presumption that insured’s death resulted from accidental means, which placed upon defendant the burden of going forward with-evidence to establish its pleaded defense of non-accidental death.”

The case of Frank v. Atlantic Life Ins. Co., 211 S.W.2d 940, 942 (Mo.App.), also holds that the certificate of death establishes prima facie the cause of death to be as ■ therein stated.

In the case of Simpson v. Wells, 292 Mo. 301, 237 S.W. 520, the appellant insisted that the trial court committed error in overruling its objection to the admission in evidence of the death certificate. There our Supreme Court reviews many decisions dealing with the admissibility of public records. One of the cases quoted from is by this court, Reynolds v. Prudential Ins. Co., 88 Mo.App. 679, where it was said: , “[Wjhere the law requires certain statements to be made, (in the death certificate) then the record of those statements is evidence of the things stated.” In rejecting appellant’s contention in the Simpson case the court said: “Unless the coroner’s certificate, after investigation, is treated as prima facie evidence as to those matters required to be incorporated therein, it would • be utterly useless as a public document.” ■

In the case of Schmidt v. Supreme Council of Royal Arcanum, 207 S.W. 874 (Mo.App.), cited by defendant, it was contended the death certificate made a prima facie case of suicide because it contained the words, “contributory suicide.” The court found that apparently the death certificate recited findings of the coroner’s jury. The case is not in point with the case at bar. Even if it were, the parts criticized in the Schmidt case merely correspond to the parts excluded in the case at bar.

In Callahan v. Connecticut General Life Ins. Co., 357 Mo. 187, 207 S.W.2d 279, also cited by defendant, the court was considering whether the part of the death certificate stating death was due to “accident” was proper. In the instant case, the only part of the death certificate admitted was the part stating the cause of death was “head injury”, and, in the instant case, whether or not the head injury was received due to accident was submitted to the jury.

In Felker v. Metropolitan Life Ins. Co., 288 S.W.2d 26 (Mo.App.), cited by defendant the coroner was not present at death and had not seen the body. The coroner changed the death certificate to reflect information given him by plaintiff. This is a far cry from the instant case, where the coroner completed the death certificate from information obtained by his investigation."

There is no evidence in the transcript to support the statements made in defendant’s brief that the coroner came to the ’conclusion the deceased suffered a head injury based on what others evidently told him, and there is nothing in the record to support the statements the coroner “didn’t see any head injury and didn’t know what caused death.” The contention lacks merit.

Déferidarit’s final contention is that the eourt erred in giving at plaintiff’s request Instruction No. I “in that it misstated the defendant’s liability under the terms of the policy of insurance and did not require the jury to find that death was inflicted solely through accidental means.”

The Instruction is as follows:

“The Court instructs the jury that if you find and believe from the evidence that Emery E. King died on or about the 17th day of October, 1960, from injuries received by him when struck by a freight train on a railroad bridge across the Grand River, and independently from all other causes, if so, and if you further find and believe from the evidence that the injuries, if any, so recéived by Emery E. King were the result of a.ccident, then the Court instructs the jury that the Plaintiff, Freda E. King, is entitled to recover the sum .of two thousand dollars ($2000.00) from the- defendant, New Empire Insurance Company, on the Insurance Policy here in question.”

At the request of the defendant, the court gave Instruction No. 2, which reads as follows :

“The Court instructs the jury that before the Plaintiff can recover she must prove by the preponderance or greater weight of the evidence that deceased lost his life as a result of bodily injuries effected solely through accidental means, directly and independently of all other causes. You are further instructed that before an injury effected solely through accidental' means can be found, there must be an-ací, which precedes the injury, in which something unforeseen, unexpected, or unusual occurs which produces the injury. Unless you believe,, therefore, that the plaintiff has established by a preponderance of the testimony that the death of said Emery E. King was caused by accidental means, alone, and independently of all other causes, then your verdict must be in favor of the defendant.
“In this connection you are instructed that if you find from all the evidence that in being or lying on the railroad track the insured acted in the manner he intended to use, and so doing was run over by a train then the insured’s death was not the result of accidental means and Plaintiff cannot recover.”

As we read Instruction I it requires the jury to find that insured died from one cause, to-wit: “from injuries received by him ivhen struck by a freight train * * * and independently of all other causes." It further requires a finding that the injuries so received were accidently inflicted. Perhaps the instruction is not as definite as it should have been, but when it and Instruction 2 are read and construed together we fail to see how the jury could have been misled.

The rule governing the instant situation is stated in the case of McDaniel v. McDaniel, 305 S.W.2d 461, 467, 468 (Mo.Sup.), as follows:

“Certainly, if an instruction, purporting to cover the whole case and authorize a verdict, leaves out a fact, essential to recover, it is erroneous; and it is not cured by another instruction requiring the finding of such fact because in such a situation the instructions are in conflict. Hatfield v. Thompson, Mo.Sup., 252 S.W.2d 534; Banta v. Union Pac. R. Co., 362 Mo. 421, 242 S.W.2d 34; McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37. However, as further stated in the McDonald case (59 S.W.2d loc. cit. 40,) ‘instructions must be read and construed together’; and ‘if the plaintiff’s instruction, covering the whole case and authorizing a verdict, does require the finding of all essential elements of the plaintiff’s case, but states some of these indefinitely or ambiguously or in language which might be •misleading, then an instruction on the part of the defendants which clearly and specifically requires the finding of •essential elements does not conflict with the plaintiff’s instruction, but instead makes it clear and definite’; and so ‘when all of the instructions thus harmonize and when read together correctly state the law, any such indefinite, ambiguous or misleading language in the plaintiff’s instruction is •cured by the other instructions.’ The main instruction in the McDonald case authorizing a plaintiff’s verdict although indefinite as to an essential element (timely knowledge of a defendant that gas was escaping into a basement) was held cured by a definite instruction given at the defendant’s request.” (Citing cases.)

We have reached the conclusion that the court did not err in refusing to submit the issue of vexatious refusal to pay to the jüry. Our Statute, Sec. 375.420 V.A.M.S., relating to penalties is to be strictly construed. The penalty should not be inflicted unless the evidence and circumstances show that the refusal to pay was willful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial; and merely because the judgment, after trial, is adverse to defendant’s , contention, is no reason for inflicting the penalty. Patterson v. Ins. Co., 174 Mo.App. 37, 44, 160 S.W. 59. Defendant had reasonable cause, as the facts appeared to it, to defend this action.

The judgment is affirmed. All concur.


text:
    MISSOURI DEPARTMENT STORES, INC., a Corporation, Appellant, v. PERSONAL FINANCE COMPANY of Missouri, a Corporation, Respondent.
    No. 23552.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Frank J. Rogers, Phineas Rosenberg, Kansas ■ City, for appellant.
    Frank L. Cohn, Jack N. Bohm, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Missouri Department Stores, Inc., operates a retail merchandise business and sells on credit. Defendant, Personal Finance Company, as a part of its operation, buys promissory notes, chattel mortgages and accounts, described in the trade as “paper” from retail credit dealers such as plaintiff.

The parties agree that during the year 1951, defendant purchased in bulk from plaintiff, notes or “paper” in the total amount of $416,177.80. The conditions and contractual obligations of the parties under this purchase were set forth in a written contract, executed by both plaintiff and defendant and styled “Master Dealer Agreement”. Clause 5 of this agreement established a “Reserve Fund” in an amount equal to five percent of the “unpaid balances of the notes purchased * * * to be used to pay any defaults and losses which may occur upon any and all notes purchased by you from us”. This clause further provided it should be in the discretion and judgment of defendant as to “which notes shall be considered losses or in default and when such notes shall be charged against said Reserve Fund”. It was further provided that when any such note was so charged and thereby became fully paid it would be reassigned upon written request.

This lawsuit grows out of a controversy as to the disposition of a part of this Reserve Fund. The parties agreed and admit that the amount of this Reserve on defendant’s 1951 purchases was $20,808.99. They further agreed that between May, 1951, and April, 1952, $16,808.58 was properly charged against said fund and the notes returned to plaintiff. This would leave a balance in the Reserve Fund of $4,000.31, for which amount, with interest' at 6 percent from September 10, 1954, the date upon which suit was filed, plaintiff asked for judgment under Count One óf its petition. Counts 2 and 3 were for alleged negligent mishandling of the accounts, and defendant filed a counterclaim. The judgment was for defendant on Counts 2 and 3, and against defendant under its counterclaim. No appeals as to Counts 2, 3, or the counterclaim were taken. Therefore, we are now concerned, solely with Count One.

The parties agree that any part of the-Reserve Fund unused for payment of “defaults and losses” should be returned to plaintiff. At the trial defendant offered evidence as to additional losses approximating $3,000, which it claims was chargeable against the $4,000.31 balance in the Reserve Fund, leaving a balance of $1,000' admittedly due plaintiff and which defendant claims it has many times since 1954, when suit was filed, offered to pay plaintiff.

Plaintiff says defendant, by retaining said' notes from the date of purchase in 1951, until date of trial on June 6, 1961, and failing to return same to plaintiff, lost its-contractual remedy of charging these defaulted accounts against the Reserve Fund because such delay was “unreasonable”, and the accounts have become barred by limitations. It asserts the court erred in refusing to enter judgment for plaintiff in the sum of $4,000.

Defendant offered evidence that it had continued its efforts to collect said accounts with some slight success, but that same are now worthless because the debtors have died, “skipped”, become bankrupts or disappeared. Defendant says that after suit was filed by plaintiff in 1954, it was unable to return this “paper” and get credit therefor because plaintiff refused to so accept the items. There was no evidence that plaintiff made any written demand for reassignment of the notes as contemplated by the terms of the Master Agreement. It is also apparent that the notes were not barred under the Statute of Limitations in 1954, when suit was filed.

The trial judge gave defendant credit for the disputed $3,000 and on August 15, 1961, (a jury having been waived) entered judgment for plaintiff and against defendant under Count One for the sum of $1,000, with interest at the rate of 6 percent from September 10, 1954 (when suit was filed) amounting to $415, or in the aggregate, $1415, and for costs.

Under the Master Dealer Agreement in the “entire discretion and judgment” of defendant it had the right to use the Reserve Fund “to pay any defaults and losses”. The evidence is undisputed that the $3,000 losses occurred and now exist. The trial court so found. The agreement provided for reassignment (when the notes were fully paid out of Reserve) if plaintiff so requested in writing. Defendant says it offered to return. Plaintiff concedes it refused and now refuses to accept reassignment. This case with the contract here involved is not a “sale and return” contract or conditional sale which plaintiff discusses in its brief, and we think it is unnecessary to discuss the cases cited by plaintiff on conditional sales.

We shall not discuss the facts further. There is clearly substantial, credible evidence to support the finding and judgment reached by the trial court. We believe its application of those facts to the plain, clear and unambiguous contract here involved, is correct.

We find no reversible error and the judgment is affirmed.

SPERRY, C, concurs.

PER CURIAM.

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

All concur.