text:
    Barbara Ana COPENHAVER, (now Buckwaiter), Plaintiff-Appellant, v. James Arthur COPENHAVER, Defendant-Respondent.
    No. 32042.
    St. Louis Court of Appeals. Missouri.
    April 1, 1966.
    Harry J. Mitchell, Palmyra, for plaintiff-appellant.
    Carstarphen, Harvey & Wasinger, Hannibal, for respondent.
   WOLFE, Presiding Judge.

This is an appeal from a decree modifying a divorce decree granted to the plaintiff on November 29, 1958. The defendant was first to move for a modification of the decree as it related to the custody of a daughter born of the marriage. The plaintiff also moved for a modification in respect to the custody of the child. The motions were heard and the court modified the decree granting the general care and custody of the child to her father, the defendant, with certain rights of temporary custody in the plaintiff mother. The plaintiff prosecutes this appeal.

At the time of the original decree the child here in question, whose name is Cynthia, was about two years of age. The parties to the divorce proceeding entered into an agreement as to her custody. It was agreed that the general custody should be in Mr. and Mrs. Omar Carter who were the plaintiff’s father and mother, the maternal grandparents of Cynthia. It provided that the plaintiff could visit the child at the Carter’s house. It further provided that from Thursday morning to Sunday evening every other week the child should be left with the defendant’s parents, Cynthia’s paternal grandparents, where the defendant could visit her. On alternate weeks she was to be left with the paternal grandparents from Friday morning to Saturday evening. This agreement was made a part of the decree and the custody of the child was awarded in accordance with it.

The plaintiff mother remarried three months after the divorce and the defendant father had been remarried for over a year at the time of the hearing on the motion to modify the decree. Up to the time of the remarriage of the defendant, Cynthia had been shifted back and forth from the custody of one set of grandparents to the other in accordance with the decree. After the remarriage of her father, she was taken on her weekends to his home instead of the home of her paternal grandparents.

There were no children born of the second marriage of the defendant. He lives with his wife in a new residential district in Palmyra in a home with all modern conveniences. Cynthia has a room of her own while she is there. The house is located seven blocks from the school which she attends. Her mother, the plaintiff, lives seven miles from the school and Cynthia was staying there instead of the home of her maternal grandparents. When she goes to school from her mother’s home she goes by school bus. The trip one way takes an hour and a half. The house her mother lives in is an old nine room house and Cynthia shares a room with another girl. The mother’s present husband is named Buck-waiter and at the time the plaintiff married Buckwalter he had five children by a prior marriage, and one child was born of the present marriage.

Defendant’s present wife is employed as a stenographer and clerical worker for the credit bureau in nearby Quincy, Illinois. During the time that Cynthia is in the home of her father, his present wife gives Cynthia nightly baths and prepares and lays out her clothing for the next day. In the morning she sees that Cynthia is dressed for school before she leaves for work. Just three houses from the home of the defendant his sister lives. She has three children, two of whom are girls near Cynthia’s age. They walk to school together and when they return home from school Cynthia stays with this aunt and her cousins until her stepmother returns from work at about 5:30.

Mr. Copenhaver, the defendant, is thirty-six years of age and is employed by Cope’s Slaughter Company as a meat-cutter and salesman. The company is owned by his father. The evidence was that he is steadily employed, conducts himself soberly, and his family is respected in Palmyra. There was also evidence that Mr. Copenhaver had been convicted of six traffic violations from the year 1950-1961, and two peace disturbance charges in the same period. Mr. Buckwalter, the present husband of the plaintiff, is a building contractor. He does carpentry, plumbing, and other kinds of construction work. He is a hard worker and earns a sufficient amount to provide for his family. Both the present and former husband of the plaintiff were men who drank intoxicants. About four months pri- or to the hearing on the motion to modify, Buckwalter encountered Copenhaver in a bowling alley and struck him on the head with a beer bottle. Buckwalter pleaded guilty to a charge of common assault on which he was sentenced and placed on probation.

As to the distaff side of the contending couples, the former Mrs. Copenhaver, now Mrs. Buckwalter, did considerable drinking. Her social life seemed to revolve mostly around bowling alleys and night clubs in the Palmyra area. While drinking with her present husband, Buckwalter, in one of the night clubs she got into an altercation with him. It wound up with him getting his face scratched and he carried her out of the place. Buckwalter himself testified that she had marked him up pretty badly and that his face was bleeding.

One witness testified that shortly after her divorce from Copenhaver the present Mrs. Buckwalter told her that the reason she wanted general custody of Cynthia given to her parents was so that she could go out and do anything she pleased and that her husband could not take the child away from her because she was an unfit mother. The plaintiff denied having made the statement and gave the following as her version of the conversation: “She had asked me why I had done it that way. I don’t even know myself, and I had said ‘Well, one thing about it, as long as she is there, Jim, no matter what he says, or anybody else, they can’t touch my baby.’ ”

The plaintiff was not in good health. She has had trouble with one leg that was injured in an automobile accident. She suffers from a stomach ulcer. At the time of the trial she was under treatment by a physician and was taking tranquilizers. She stated that both she and her husband had given up drinking.

The present Mrs. Copenhaver had no living parents and by reason of this she had been obliged to support and educate her minor brother. She had held not only a full time stenographic position but she had worked as a waitress at night to augment her income sufficiently to send her brother through a business college. She tenderly cares for Cynthia when she is with them. She listens to her prayers and-they attend church and Sunday School. She sees that Cynthia is well groomed, plays games with her, reads stories to her, and they genuinely enjoy each other’s company.

There was evidence that Buckwalter’s home was poorly heated and that the housekeeping was bad. There was also evidence on behalf of the plaintiff to the contrary. There was evidence that Cynthia got along well with the Buckwalter children and they treated her like a sister. Both couples profess love for Cynthia and a desire for her custody.

In addition to the foregoing there was evidence that when Cynthia came to the Copenhaver’s her clothing was not clean and her hair needed attention and that the table manners they had attempted to teach her had been neglected while she was away from them.

The court modified the divorce decree by an order which is in part as follows:

“ * * * that the general care and custody of Cynthia May Copenhaver be to and in the father, James Arthur Copen-haver, with right in the mother Barbara Buckwalter, for temporary custody the last week end in each month from 5:30 P.M. Friday to 7:00 P.M. Sunday, and the temporary custody in the mother, Barbara Buckwalter, from June 10th each year to August 10th each year, during which period the father, James Arthur Copenhaver, have the right and custody of Cynthia May Copenhaver the last week end of June and the last week end of July from 5:30 P.M. Friday to -7:00 P.M. Sunday; that during the Christmas Holidays Cynthia May Copenhaver is to be in the home of her natural mother, Barbara Buckwalter, four (4) days, every other year one (1) of those days to be Christmas Day. Further, Cynthia May Copenhaver to be with her natural mother, Barbara Buckwalter, at least on (1) day during the Thanksgiving Holidays each year. During the period of temporary custody of the mother during June and July each year, the defendant James Arthur Copenhaver shall pay to the natural mother Barbara Buckwalter, the sum of $50.00 per month. * * * ”

The appellant here contends that the court erred in awarding custody to the father and seeks reversal of the decree and the award of general custody to the mother. While a review of such matters on appeal is a trial de novo, on such review this court should not lightly disturb the judgment of the trial court but on the contrary such judgment should be deferred to unless it is apparently in conflict with a clear preponderance of the evidence and a manifest abuse of judicial discretion. Benjamin v. Benjamin, Mo.App., 370 S.W.2d 639; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364; Long v. Long, Mo.App., 280 S.W.2d 690.

The plaintiff contends that because she prevailed in the divorce action she should have been awarded custody of the child. We are cited to Wilson v. Wilson, Mo.App., 260 S.W.2d 770. In that case we stated that the custody was usually awarded to the prevailing party. We also stated in McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, l. c. 591: “ * * * The fact that either party prevails in a divorce case is not the determining factor in awarding the custody of the children involved. The custody of children should never be awarded as a means of punishing one parent or rewarding the other. The determinative factor in awarding custody is the welfare of the child. * * *”

Clearly plaintiff did not want the child at the time of the divorce. While the custody of a child of tender years is usually awarded to its mother (Wilson v. Wilson, supra) that rule gives way, as do all others, when the welfare of the child demands it.

It is true that the conduct of the child’s father had not in the past been exemplary, but there is no evidence that since his present marriage his conduct has been bad. His present wife appears to be a person of fine qualities who gives Cynthia the love and guidance needed. Added to this the plaintiff is keeping house for six children and her present husband and is in ill health. For these reasons it seems apparent to us that the welfare of the child will be best served by giving her custody to the defendant, as the court decreed, where she will be well cared for in a wholesome atmosphere and close to her school.

A motion for an allowance of attorneys fees was filed by the plaintiff and the court awarded $125.00. It is contended by the plaintiff that this is inadequate and that we should make an award that is adequate and reasonable. In Baer v. Baer, Mo.App., 51 S.W.2d 873, l. c. 880, we stated: “Allowances for counsel fees and suit money for the wife in a divorce action, and in proceedings ancillary thereto, are largely discretionary with the trial court; such discretion to be exercised in view of all the circumstances of the parties. * * * The test is whether the wife is possessed of sufficient means on her own part to prosecute the suit, and if she has such means, then there is no call for requiring the husband to meet those expenses. * * * ” No evidence was offered as to the plaintiff’s finances, nor was there any evidence as to the extent of the necessary services of the lawyer or the value of such services. It is consequently apparent there is nothing before us which could be examined to determine the propriety of the trial court’s discretionary action and the point is therefore without merit. Jeans v. Jeans, Mo.App., 300 S.W.2d 870.

The judgment is affirmed.

ANDERSON, J., and DOUGLAS W. GREENE, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Jacqueline M. DUZER, also known as Jackie M. Duzer, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, S. N. Crowe, George W. Wise and Charles E. Cates, and Division of Employment Security, Defendants-Respondents.
    No. 32269.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.
    Gerald Cohen, St. Louis, for plaintiff-appellant.
    Lloyd G. Poole, Jefferson City, for defendant-respondent Industrial Commission.
    Gordon P. Weir, George Schwartz, Jefferson City, for defendant-respondent Div. of Employment Security.
   ANDERSON, Judge.

In this action plaintiff, Jacqueline M. Duzer, sought a judicial review in the Circuit Court of a decision of the Industrial Commission of Missouri which was adverse to her. The cause was dismissed by the trial court for lack of jurisdiction. Plaintiff has appealed.

The petition for review was filed April 20, 1963. Named as defendants in said suit at that time were the Industrial Commission of Missouri, S. N. Crowe, George W. Wise and Charles E. Cates. The three individuals named were the members of the Industrial Commission. The petition was in words and figures as follows:

“Comes now the plaintiff and for her cause of action herein states to the Court
“(1) That the individuals above named comprise the Industrial Commission of the State of Missouri.
“(2) That plaintiff duly appealed to said Commission a decision of a referee finding that she received unemployment benefits while ineligible therefor, being Appeal No. A 3270-62.
“(3) That said appeal was denied and the original finding affirmed on April 10, 1963 by defendants.
“(4) That said decision was manifestly against the law and the evidence presented heretofore.
“WHEREFORE, plaintiff prays that the Court enter its order finding that plaintiff was eligible for unemployment benefits during the time described in Industrial Appeal No. A 3270-62.”

On October 16, 1963, by leave of Court, the petition was amended making the Division of Employment Security a party defendant to said cause. A summons was then ordered to issue to the Sheriff of Cole County for said defendant on said amended petition. To this amended petition, defendant, Industrial Commission, filed its separate answer on November 13, 1963.

On November IS, 1963, the Division of Employment Security filed its motion to dismiss. Said motion is in words and figures as follows;

“The Missouri Division of Employment Security, defendant herein, moves the court to dismiss plaintiff’s cause of action for the reason that said plaintiff has not complied with Section 288.210, Missouri Employment Security Law 196L, by failing to make the Division of Employment Security a party to said cause of action in taking her appeal.
“For the further reason that the court lacks jurisdiction since the Division of Employment Security, a legal entity, is a proper party defendant but was not so made when plaintiff filed her application for judicial review. That plaintiff filed its (sic) Petition for Judicial Review in this court on April 24, 1963, and that the Division of Employment Security was not made a party thereto until October 16, 1963. Therefore, the Division of Employment Security, a necessary party, was not made a party defendant within the ten-day statutory period of time as provided for in Section 288.210, Missouri Employment Security Law 1961.
“WHEREFORE, the defendant, Division of Employment Security moves the court to dismiss plaintiff’s cause of action for the above reasons and to go hence with its costs.”

Thereafter, on April 26, 1965, the Court sustained said motion to dismiss and entered its judgment of dismissal. This appeal followed.

Plaintiff contends that the Court erred in dismissing her action which was commenced within ten days after the decision of the Industrial Commission became final. Defendants contend that the action was not commenced in the manner prescribed by Section 288.210 RSMo 1959, V.A.M.S., and for that reason, the Court was without jurisdiction of the cause and properly sustained the motion to dismiss.

Section 288.210, supra, governs the procedure to be followed in securing a judicial review of a decision of the Industrial Commission. The material portion of said section provides:

“Within ten days after a decision of the commission has become final, the director or any other party aggrieved thereby may secure judicial review thereof by commencing an action in the circuit court * * * of the county of claimant’s residence * * ⅜ against the commission for the review of such decision in which action any other party to or having been notified of the proceeding before the commission shall be made a defendant. * * * The division shall be a necessary party to any judicial action involving any such decision and may be represented by any qualified attorney who may be employed or appointed by the director and designated by him for this purpose. * * *.”

By Section 288.030 RSMo 1959, V.A. M.S., the term “Division” is defined as the division of employment security which administers this law. The same section of the statute defines the term “Director” as the administrative head of the division. In Parker v. Unemployment Compensation Commission, et al., 358 Mo. 365, 214 S.W.2d 529, our Supreme Court held that the division was a legal entity with rights and powers of a public quasi corporation with capacity to sue and defend in the name of the division as a party to an action in Court.

The general rule which we deem applicable to the determination of the matter before us is stated in 81 C.J.S. Social Security and Public Welfare § 229, pp. 334-335, as follows:

“The procedure for obtaining judicial review of an administrative decision with respect to unemployment compensation is ordinarily governed by the unemployment compensation statutes and not by the common-law or other statutory rules of procedure * * *.
“As a general rule, the' court does not acquire jurisdiction unless the steps prescribed by the statute have been followed, and compliance with mandatory provisions of the statute as to the filing, form, and contents of a notice of appeal has been held to be a condition precedent to jurisdiction. * * * ”

Section 288.210, supra, provides the procedure where a judicial review is sought of a decision of the Commission. It is complete and exclusive, and its terms must be complied with before a court can acquire jurisdiction of such a proceeding. By its terms, the Division of Employment Security is designated as a necessary party to such suit, and in our judgment the court does not acquire jurisdiction over the action unless suit is filed and all necessary parties are made defendants within the ten day period specified in the statute. While there are no Missouri authorities on the point, the appellate courts of other states have so held. See Lambeth v. Texas Unemployment Compensation Commission, (Tex.Civ.App.), 362 S.W.2d 205; Kendall v. Administrator and Board of Review, (Ohio App.), 145 N.E.2d 415; MacVeigh v. Division of Unemployment Compensation, et al., 19 Wash.2d 383, 142 P.2d 900; Cuny v. Annunzio, 411 Ill. 613, 104 N.E.2d 780; and Texas Employment Commission v. Daniel, (Tex.Civ.App), 241 S.W.2d 969.

The cases relied upon by plaintiff are not in point on the issue before us. Plaintiff’s further contention that the statute should be construed as permitting a joinder of necessary parties after the ten day period, so long as the suit was filed against the Commission within the ten day period, is likewise without merit for the reason that there is no ambiguity in the statute which calls for construction.

In our opinion, the statute contains a plain, unambiguous and positive command which plaintiff failed to heed. For that reason, the jurisdiction of the Circuit Court did not attach. The trial court did not err in sustaining the motion to dismiss.

The judgment is affirmed.

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


author: TOWNSEND, Commissioner.

text:
    Marie FOSTER, Plaintiff-Respondent, v. Betty D. LABA and Jack F. Brune, Defendants-Appellants.
    Nos. 32222, 32223.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Schwartz & Ely, Robert C. Ely, St. Louis, for defendant-appellant, Betty D. Laba.
    Sigoloff & Sigoloff, J. E. Sigoloff, St. Louis, for defendant-appellant, Jack F. Bruñe.
    James F. Koester, Jack C. Harper, St. Louis, for plaintiff-respondent.
   TOWNSEND, Commissioner.

Action for damages for personal injuries sustained as a result of stepping into a defective porch flooring. Verdict and judgment for plaintiff for $10,000 against both defendants, from which each appeals.

Plaintiff was a second-floor tenant of defendant Bruñe in a two-story building, the south one-half of which was owned by Bruñe and the north one-half by defendant Laba. Each half had an apartment on the first floor and one on the second. A hallway ran down the center of the first floor from front to rear, and at the rear end of the hallway one reached an outside stairway which furnished the only means of access to the second floor. At the top, the stairway gave onto a porch which led both to right and to left. The porch was completely open from plaintiff’s apartment to the apartment in the north half of the building; there was no barrier on the porch which would have marked the separation of the southern half from the northern half. When plaintiff moved into the premises there was a clothesline which ran the length of the porch and plaintiff used it not only on her side of the porch but also on the north half of the porch. Plaintiff’s injury occurred when she was sweeping the porch on that portion thereof belonging to defendant Laba. As she was sweeping she stepped into a readily observable hole in the floor about ten inches by three or four inches in dimension, through which one could see to the ground below. As a result she was thrown to the floor of the porch with the consequent injuries about which she testified. Plaintiff knew of the existence of the hole and had called it to the attention of her rent collector.

Plaintiff explains her presence, sweeping, on that part of the porch belonging to defendant Laba in this way: There was a sign across the front of the building at the hallway with the lettering: “Brune’s Real Estate”. She rented her apartment and paid the first month’s rent at the office of Bruñe Real Estate in October or November, 1959. From that time on rent was paid monthly to a rent collector who called at the apartment and who told her that he was employed by Bruñe Realty Company. There was some conversation with this man (not identified further) at the time plaintiff rented the apartment at the office of Bruñe Real Estate, concerning the cleaning of the porch.

Plaintiff’s testimony regarding her conversation with the alleged agent of Bruñe was as follows:

“Q. Now, what did you say this man told you [at the time when plaintiff rented her apartment at the Bruñe office] ?
A. I told him that there was a lot of trash on the porch and that the rooms were all empty, open, and that the rooms I was to move in had a lot of trash in them, cans, bottles, and such as that, and he said to clean it up, if I would clean it up, take the trash off the porch and clean the trash out of the rooms, that he would give me a month’s rent, and to put locks on the doors, because they was open, and people was going in and out, and I was alone, and I was afraid to be there by myself with the doors all open.
Q. Now, this was the only conversation you had relative to the cleaning of the premises; isn’t that correct?
A. Well, and then when the gentleman come to the house to collect the rent, the elderly man, then he told me again to clean the trash off of the porch, and also that was on the other side, and to sweep them down. And that’s what I was doing when the accident happened.”

In other testimony the plaintiff dated the last mentioned conversation as of about February 10; when asked what portions of the property the alleged agent wanted cleaned in that conversation, she answered: “He told me all of it, the downstairs and up, that was empty.” (Q) “Clean the downstairs apartment?” (A) “That’s right. And the upstairs.” (Q) “And the upstairs. This also included your apartment, or — ?” (A) “Yes, sir.” (Q) “All right. Now, did he mention anything specifically about the porch?” (A) “He said, all of it. He didn’t exactly say just which part; he said, all.” (Q) “He said all?” (A) “That’s right.” (Q) “And did you take that to mean the whole porch ?” (A) “Yes.”

According to plaintiff’s testimony, a period of approximately four months elapsed between the two conversations. No effort was made by counsel to determine whether the original cleaning job had been completed in the interim, or whether there had been any remission of rent in that period. It may be open to question whether the two conversations referred to the same clean-up. In any event counsel utilized this testimony solely for the purpose of advancing the argument that the two defendants maintained a porch in common for the use of tenants of both. Plainly the testimony could not possibly tend toward any conclusion that Laba participated in the maintenance of a common porch; there is no evidence that Laba had any connection with Bruñe Real Estate office or with the rent collector.

Plaintiff had no instruction not to use any particular part of the porch. At the time of her accident the upstairs apartment on the Laba side of the building and the downstairs apartment on the Bruñe side (directly beneath plaintiff’s apartment) were unoccupied. No evidence was offered as to any prior practice relating to uses of the porch. Neither was there any evidence as to the derivation of title by either defendant.

Plaintiff testified that she had never had any relationship by way of rental with Betty Laba or even any conversation with her; that she had never heard of Laba before the lawsuit. Neither defendant offered any testimony; each filed a motion for a directed verdict which was denied.

By her petition plaintiff alleged that the defendants “maintained a common stairway and porch for access and use of persons living on the second floor,” that plaintiff’s injuries occurred while she was walking on the common porch and that they resulted from the joint and concurrent negligence of both defendants. Plaintiff’s verdict directing instructions followed the same theme of a common porch way, “available and intended for the use of persons occupying both apartments” and “used jointly in common by tenants” of both defendants, and imposed liability upon each defendant if each failed to exercise ordinary care in knowing of the defect in the floor and in failing to repair.

There is no evidence of a common enterprise of defendants or of a common maintenance of the porch by them. And so there is no evidence to sustain the hy-pothesization of a common porch way or that the porch was intended for the use of all persons occupying second-floor apartments. To say that Laba owned and maintained the north one-half of the porch for the accommodation of a tenant of Bruñe who occupied the south one-half of the second floor — and vice versa — would be going wholly outside the record. There is no doubt that the stairway was maintained in common, since, because of the narrowness of the stairs, any tenant proceeding to the second floor could not avoid treading on both sides of the imaginary line separating the north property from the south property. But no injury occurred on the stairs. The only speculation about maintenance in common of the porch that could conceivably be indulged in is one which would rest on the fact that the porch was open from end to end without a barrier at the dividing line of the two properties. But that would be pure speculation and- one cannot derive maintenance in common from the mere unimpeded openness of the porch. While it is true that anyone on the second floor had the physical ability to pass without interruption from one end to the other, one cannot deduce from that fact alone that anyone passing from one end to the other had a legal privilege to do so. There is no evidence that either landlord possessed an easement to pass over the premises of the other. It was testified by plaintiff that when she arrived at that point on the stairway where it debouched upon the porch, she had to take a step or two onto Laba’s side of the porch before she could turn and proceed to her apartment. If there was anything here in the nature of an easement by implication it was confined to the use of that very limited part of Laba’s porch and did not extend farther. There is no showing that use of that area of Laba’s porch where the accident occurred was necessary to plaintiff’s enjoyment of the premises which she had rented. It follows that there was no evidentiary basis for the instruction to the jury relating to a common porch way intended for the use of persons occupying both apartments and used jointly in common by tenants of both defendants.

From all the evidence that is before the Court the plaintiff cannot be denominated as anything other than a trespasser upon Laba’s porch. To trespassers the owner of real estate owes no duty to keep his premises in a safe condition. Butz v. Cavanagh, 137 Mo. 503, 38 S.W. 1104. It is thus clear that, not only was there no evidence upon which to base the instruction in relation to Laba, the case against Laba should never have been submitted to the jury. Laba’s motion for a directed verdict should have been sustained.

As previously stated, counsel endeavored to utilize plaintiff’s testimony for the sole purpose of advancing the contention that the two defendants maintained a porch in common for the use of tenants of both. Absent Laba, the contention of common maintenance fails and so failing it leaves Bruñe alone in the picture. The plaintiff has in no wise maintained that Bruñe is liable to plaintiff on some theory of inducing her to work in an unsafe place or that some other kind of unspecified tort were perpetrated on her thereby.

Plaintiff’s brief has been devoted chiefly to “reservation of control by defendants” of the stairway and porch. This results in a confusion of concepts, since joint or common control of the stairway did not involve common control of the whole porch. That matter has already been passed upon. But to speak of “reservation of control” at all brings into consideration another concept not relevant in the present circumstances, namely, that rule in landlord-tenant cases known- as the “common use” rule whereby a landlord who provides facilities for the common use of two or more tenants is deemed to remain in control of those facilities and can be held responsible for injuries resulting from lack of proper care. If “reservation of control” was intended to mean common control of the whole porch by both landlords, we have already stated that there was no evidence to sustain that allegation; if “reservation of control” was uttered for the purpose of invoking the “common use” rule so briefly outlined above, such utterance was misconceived. Here there was no issue involving the common use rule. Neither defendant had more than one tenant, “and it cannot be said that either * * * in renting his premises, retained care and control over a part used by his several tenants in common.” Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797. The prime issue was whether two landlords provided facilities in common for the several uses of tenants of both.

If the defect in the floor here had been in Brune’s part of the porch, he would not have been liable to plaintiff because of failure to keep the porch in repair. “No liability arises against the landlord for such failure, except from some active wrongdoing, and not from mere negligence,” in the absence of a covenant to repair. Mahnken v. Gillespie, supra. Such being the rule one can find no basis for the proposition here that the landlord owes his tenant a duty to keep the premises of a third person in repair. Among other things, a duty to repair rests upon the privilege of inspection and here we have no showing that Bruñe had the privilege of entering upon Laba’s premises. In the absence of any evidence concerning the conveyances by which present titles were acquired we cannot speculate that Bruñe had an easement by implication over Laba’s porch which would cast upon him as owner of the dominant estate the duty of keeping her porch in repair. Cf. Swingler v. Robinson, Mo.App., 321 S.W.2d 29.

For the reasons previously stated, the instruction hypothesizing a common porchway, available and intended for the use of persons occupying both apartments, was not based on any evidence produced at the trial and was erroneous as to Bruñe as well as to Laba. The record discloses no other basis for holding Bruñe liable to plaintiff and his motion for a directed verdict should have been sustained. The conclusions to which we have come render it unnecessary to consider the question of plaintiff’s contributory negligence.

The judgment should be reversed and the cause remanded to the Circuit Court with instructions to- enter judgment in favor of each defendant.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly the judgment is reversed and the cause remanded to the Circuit Court of the City of St. Louis, with instructions to enter judgment in favor of each defendant.

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

       For this reason the case of Peterson v. Bruñe, Mo., 273 S.W.2d 278, cited by both parties and relied upon by plaintiff, is not in point. In that case one landlord and two or more of his tenants were involved and the “common use” rule was applied. The same lack of pertinency is found in Schneider v. Dubinsky, 344 Mo. 654, 127 S.W.2d 691.


text:
    Dorothy Janice McCULLOUGH, Plaintiff-Respondent, v. Lawrence Neil McCULLOUGH, Jr., Defendant-Appellant. Dorothy Janice McCULLOUGH, Plaintiff-Appellant, v. Lawrence Neil McCULLOUGH, Jr., Defendant-Respondent.
    Nos. 32251, 32252.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Schneider, Sumner, Hanlon, & Boyle, John F. Hanlon, Clayton, for plaintiff-appellant-respondent Dorothy Janice McCullough.
    Tremayne, Joaquin, Lay & Carr, Kenneth S. Lay, Clayton, for defendant-appellant-respondent Lawrence Neil McCullough, Jr.
   ANDERSON, Judge.

In cause No. 32,252, plaintiff, Dorothy Janice McCullough has appealed from a judgment for defendant in an action to increase the allowance to her for child support previously awarded in a divorce action. The appeal in cause No. 32,251 is by Lawrence Neil McCullough, defendant in said action, from an award to plaintiff of attorney’s fees in said suit. The appeals were consolidated for hearing in this Court.

The divorce suit was filed on April 26, 1957, and the decree rendered June 28, 1957. Prior to the trial, plaintiff and defendant entered into an agreement with respect to their property rights, alimony, custody of the children born of the marriage and the allowance for child support, all subject to the approval of the Court. The parts material to the issues on this appeal are as follows:

“1. The Plaintiff shall have primary custody of the minor children born of the marriage, namely, Lawrence Neil McCullough, III, and Carol Adams McCullough, subject to the right of Defendant to see and visit said children at reasonable times and subject, further, to the right of Defendant to have temporary custody of said children for a period of one month each year during their summer vacation from school beginning in 1958, and subject, further, to the right of Defendant to have temporary custody of said children one weekend each month from 5:00 P.M. on Friday until 8:00 P.M. on Sunday and during one-half of the Christmas vacation of said children each year, and it is further agreed that during such periods of temporary custody by Defendant that he may remove said children from the State of Missouri.
“2. That the Defendant shall pay to Plaintiff for the support of each child the sum of TWO HUNDRED DOLLARS ($200.00) per month, a total of FOUR HUNDRED DOLLARS ($400.00) per month.
“3. That Defendant shall pay to Plaintiff as and for alimony the sum of TWO HUNDRED AND FIFTY DOLLARS ($250.00) per month.
⅜ ⅜« * ⅝ ⅜ *
“5. It is understood by Plaintiff and Defendant that the sums for child support and alimony above mentioned are based in part on an expected future increase in the income of Defendant and it is recognized that such sums, considering the present income of Defendant, are liberal, and it is further understood by Plaintiff and Defendant that a decree of divorce incorporating provisions of this stipulation and agreement with respect to the custody and support of said children and alimony to be paid to Plaintiff, shall be and is, subject to change and modification by the Court upon application of either party hereto and a showing of changed circumstances arising subsequent to the granting of said- decree which may in law authorize the Court in making such change or modification.
* * * * t- *
“10. The original of this Stipulation and Agreement will be filed with the Court and made a part of such decree of divorce as may be entered between Plaintiff and Defendant.”

In the decree, the Court found plaintiff was the innocent and injured party and entitled to the relief prayed for in her petition. It dissolved the bonds of matrimony existing between the parties and granted plaintiff the custody of the two children born of the marriage. It provided for temporary custody and visitation rights in defendant in the manner specified in the stipulation, also alimony and support money for the children in the amounts stipulated, said decree reading as follows:

“ * * * that said plaintiff have and recover of said defendant the sum of $250.00 per month as and for alimony and the sum of $200.00 per month as and for the support of each of said children, making a total of $650.00 per month, the first payment due and payable forthwith and the same amount due and payable on the 28th day of each month, until further ordered by the Court; * * * and that said defendant pay the costs herein incurred. Stipulation filed and made part of this decree. Said Stipulation is in words and figures as follows, to wit: * * (The stipulation is then set out in full as a part of the decree.)

Thereafter, and on September 16, 1964, the decree was, upon stipulation of the parties, modified by the following order.

“Stipulation for Modification of Judgment and Decree filed and pursuant thereto judgment and decree of June 28, 1957 amended as follows:
“Plaintiff permitted to take the minor children of the parties, Lawrence Neil McCullough, III, and Carol Adams McCullough to the vicinity of Wilmette, Illinois, and there to have said children in her custody and under her control subject to the visitation and temporary custody rights granted to defendant in the decree of this Court entered in this cause June 28, 1957.”

On October 30, 1964, plaintiff filed the present motion to modify. In said motion, plaintiff sought an increase in child support to $300 per month for each child, for costs and a reasonable attorney’s fee for the prosecution of said action. The grounds alleged were: (1) substantial increase in the cost of living since the date of the original decree; (2) increase in the necessary expenditures for food, clothing, educational needs and social activities since the date of the original decree; (3) improvement in defendant’s financial condition.

At the time of the hearing, plaintiff was residing with the two children at Wilmette, Illinois. Her son, Lawrence Neil McCullough, III, was eight years old at the time of the divorce, and sixteen years of age at the time of the hearing, (March 3, 1965). The daughter, Carol, was four years old when the divorce was granted, and eleven years of age at the time of the hearing. The son attends high school and the daughter is in the sixth grade. No evidence was offered as to how much was needed for the support of each child as of the time of the divorce, nor was there any evidence adduced to show the total amount needed for their support at the time of the hearing. However, plaintiff testified that the expense for the support of the children had increased since the divorce. In her testimony, she stated the monthly increase was as follows:

For son, Lawrence:

Cost of living-$ 15.00

Food- 25.00

Clothing - 15.00

Books- 10.00

School supplies such as gym outfits “and everything that is required for high school boys at this age, his bus fare, lunch and allowance”-$ 35.00

(Plaintiff stated that at the time of the divorce, they lived a block from school, and for that reason there was no bus fare, and no lunch money to be provided for the reason he came home for lunch. She also stated his allowance at the time of the divorce was less than at present.)

Additional insurance beginning June 1, 1965 when son starts

driving automobile- 12.50

Music lessons - 7.50

Guitar lessons- 10.00

Total monthly increase for Lawrence-$130.00

For daughter, Carol:

Cost of living-$ 15.00

Clothing - 15.00

Food - 25.00

Lunches and allowance including Girl Scouts and Club- 15.00

Books and supplies- 5.00

Eye glasses, dental bills and Social activities- 25.00

Total monthly increase for Carol-$100.00

It does not appear what the general increase in the cost of living of $15.00 per month includes; whether the items of food,, clothing etc., generally regarded as an element in the cost of living, or items not listed or both. Plaintiff was not cross-examined by defendant’s counsel.

Plaintiff is not employed and has not been employed since the divorce. She testified she had no income other than what she receives as alimony and child support. She further stated she lives in an apartment with her two children.

Interrogatories propounded by plaintiff and defendant’s answers thereto were admitted in evidence. The answers contain information with respect to defendant’s income, both gross and net from 1956 through 1964.

According to said answers, defendant had, in 1956, a gross income of $14,856.42. During that year he expended $671.69 for office expense, interest in the sum of $932.-75, and taxes in the amount of $2,113.73, a total expenditure of $3,718.17, leaving a net income of $11,138.25 for said year.

Said answers stated that in 1957, defendant had a gross income of $12,240.79. During that year, he expended $1,750.00 for alimony; interest, $466.37; taxes, $2,381.96; or total expenses of $4,598.33, leaving a net income of $7,642.46.

In 1958, as revealed by said answers, defendant had a gross income of $9,435.97. Expenditures were: alimony, $2,750.00; interest, $412.18; taxes, $1,767.18; or a total of $4,929.36, leaving a net income of $4,-506.61.

In 1959, defendant revealed a gross income of $15,933.35. Expenses listed were: alimony, $3,000; interest, $1,026.17; taxes, $2,356.81 and business expense, $159.21; total expenses, $6,542.19; leaving a net income of $9,391.16.

In 1960, defendant had a gross income of $14,109.59. Expenses listed were: alimony, $3,000.00; interest, $943.88; taxes, $1,974.-71; and business expenses, $266.43-; total expenses, $6,185.02; leaving a net income of $7,924.57.

In 1961, defendant had a gross income of $15,248.42. Expenses listed were: alimony, $3,000.00; interest, $842.24; taxes, $3,643.81; and business expenses, $608.44; total expenses', $8,094.49; leaving a net income of $7,153.93.

In 1962, defendant had a gross income of $42,737.90. Expenses listed were: alimony, $3,000.00; business expenses, $11,680.59; and taxes, $7,217.18; total expenses listed, $21,897.77; leaving a net income of $20,-840.13.

In 1963, defendant had a gross income of $41,710.48. Expenses listed were: business expenses, $13,992.37; alimony, $3,000; interest, $1,101.10; and taxes, $5,737.09; total expenses, $23,830.56; leaving a net income of $17,879.92.

In 1964, defendant had a gross income of $47,303.11. Expenses listed were: business expenses, $16,041.83; interest, $3,440.71; taxes, $6,073.22; and alimony, $3,000.00; total expenses, $28,555.76; leaving a net income of $18,747.35.

Following the answers disclosing the gross and net income is the notation: “This does not include child support of $400.00 per month * * *. I have not included such capital contributions as insurance payments, debt retirement, gifts to children and others in nominal amounts, medical expenses, and others.”

The answers to the interrogatories also listed property owned separately by defendant and other property owned by him. and his present wife (Peggy June) as community property. Listed as community property was a residence in Albuquerque, New Mexico, the value of which he estimated to be $50,000.00. As separate property, he listed an apartment building which he estimated the value to be $35,000.00. The foregoing real property was said to be subject to a total contract and mortgage indebtedness in the amount of $70,692. Listed as personal property: cash in banks, $3,871.54; stock in LaMesa Medical Center, $5,000; office furniture and fixtures, $2,000; home furniture and fixtures, $4,000; and automobile, $3,-225. Following the list of personal property is the statement that all his personal property was subject to personal indebtedness as follows: notes payable to Margaret , McCullough (defendant’s mother), $20,000; notes- payable to McHenburk Apartments, Inc., $11,000; accounts payable to Broadway Lumber Company, $5,196.56; Bank of New Mexico, $559; open accounts payable ■ — estimated, $2,000.

There appears in said answers the following: “There have been gifts to me of nominal amounts from time to time of which no records have been kept, such gifts being of no consequences. I received stock of Broadway Lumber Company in 1963 valued at $14,062.00, which I have since surrendered and which has no value at this time.”

It further appears that prior to the divorce, defendant and plaintiff owned an equity in a residence in Webster Groves worth from $3,000.00 to $4,000.00 which property was conveyed to plaintiff pursuant to the property settlement entered into by the parties at the time of the divorce.

It further appears from said answers that defendant is a residuary beneficiary of a testamentary trust under the Last Will and Testament of L. N. McCullough, deceased. He stated his mother was the primary beneficiary, and that all of the assets of the trust were pledged to the First National Bank in Albuquerque, New Mexico. It was also stated that defendant had no idea of the value of the trust estate, but believed it might have no value unless his mother should prevail in a certain lawsuit pending in New Mexico.

The defendant did not take the stand, although present in Court. Nor did plaintiff call defendant as an adverse witness which she might have done to clear up certain matters in defendant’s answers to the interrogatories which she now complains were not adequately explained.

Plaintiff contends that the failure and refusal of the trial court to increase the allowance for child support amounted to an abuse of discretion and, for that reason, this court should order judgment in accordance with the prayer of her motion. Defendant contends there was no abuse of discretion shown, especially in view of the fact that plaintiff failed to produce evidence of the amount needed for the support of the children.

The motion to modify does not allege that the circumstances have changed in such a manner and degree as to render the original provisions for support unreasonable, unjust and inadequate, nor did plaintiff so testify. There was no testimony whatever as to the amount actually needed for the support of these children. Before a court can exercise its discretion in ordering an increase in child support to meet the child’s necessities and other expenditures to which the child is entitled, there should be evidence adduced as to the cost of those items. Nelson v. Nelson, Mo.App., 357 S.W.2d 223.

In the case at bar, plaintiff’s testimony did establish that the needs of the children are greater now than they were at the time of divorce, but her evidence furnished no guide which would enable the court to determine without speculation and conjecture, the proper amount to be awarded. The stipulation, upon which the original decree was based, recognized that the allowance of $200.00 per month for each child was not based upon actual need but in part on expected future increase in defendant’s income. On the record before us, we do not believe plaintiff has met the burden of proof necessary to warrant an increase in the original allowance.

In arriving at this conclusion, we are not unmindful of the rule that a court, in the exercise of its discretion, may make an allowance in excess of the bare necessities of life if the circumstances so warrant. Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, and that children are entitled to be maintained according to the station in life occupied by a person of their father’s financial standing; and enjoy certain privileges not usually had by children whose fathers are not able to provide such advantages. Nelson v. Nelson, supra. But before such an allowance can be made, there must be evidence upon which to base it, and when such evidence is introduced, the amount to be allowed is addressed to the sound discretion of the trial court. Here the trial court had before it, the evidence of the father’s financial condition and the means possessed by the mother; but no evidence as to the total actual cost of the necessities and other privileges to which they may have been entitled. The trial court denied the increase. In the state of the record, we find no abuse of discretion.

In defendant’s appeal, it is urged that the evidence was insufficient to support an allowance for attorney’s fees for the reason it was not shown that plaintiff did not have sufficient means to pay her attorney. There is no complaint as to the amount allowed.

Plaintiff testified that she was not employed at the time of the hearing and her only income was that which she received as alimony and support for the children. At the time of the divorce as a part of the property settlement, defendant conveyed to plaintiff all his right title and interest to residence property in Webster Groves, and to all furniture, linens, dishes, silverware, equipment, and effects contained in said residence. He also transferred to her a 1956 Bel Air automobile; plaintiff agreeing to make the payments thereafter due on the purchase price of said car. The equity in the residence property was valued at $3,000.00 or $4,000.00. It does not appear whether plaintiff still owns this property or has in her possssion the proceeds of any sale of said property. The value of the household furniture was estimated by defendant at $3,000. There was no value placed on the 1956 automobile, nor does it appear that plaintiff still owns same. There was no evidence in the record that plaintiff owns or has owned any assets other than the above mentioned property. She lives with her children in an apartment.

Whether an allowance for attorney’s fees in cases of this kind is allowable rests within the sound discretion of the trial court, Wonneman v. Wonneman, Mo.App., 305 S.W.2d 71, l. c. 81; and the exercise of that discretion will not be interfered with unless it has been manifestly abused. Boll v. Boll, Mo.App., 287 S.W. 834; Baer v. Baer, Mo.App., 51 S.W.2d 873; Wonneman v. Wonneman, supra; Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354. We see no reason for interfering with the discretion exercised by the trial court in making the allowance in this case.

The judgment in cause No. 32,251 is affirmed.

The judgment in cause No. 32,252 is affirmed.

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


author: STONE, Presiding Judge.

text:
    In the Interest of J. L. L., a child under 17 years of age.
    No. 8499.
    Springfield Court of Appeals. Missouri.
    April 18, 1966.

      Dorothy F. Roberts, Lamar, Frieze & Crandall, Arkley W. Frieze, Carthage, for appellants, the adoptive parents.
    Gordon R. Boyer, Pros. Atty., Lamar, for the State.
   STONE, Presiding Judge.

In this statutory proceeding under our Juvenile Act [Sections 211.011 to 211.431], the adoptive parents of J- LL- — , a girl six years of age, appeal from the judgment of the juvenile court entered on June 28, 1965, which found that the girl was a neglected child “in need of care and treatment” [Section 211.031] and committed her to the care and custody of the division of welfare under the continuing supervision of the juvenile court. Section 207.020(17). (All statutory references are to RSMo 1959, V.A.M.S., and all references to rules are to the Rules of Civil Procedure, V.A.M.R.) The petition filed by the juvenile officer in the juvenile court [Section 211.091] specifically charged physical abuse of the girl, and the evidence at the hearing was directed toward that charge. No complaint is made concerning the form, substance or sufficiency of the petition, but the principal contention of the adoptive parents is that the evidence was “wholly insufficient” to permit the court’s finding that the girl was a neglected child. Before discussing the event which precipitated the institution of the neglect proceeding, it may be helpful to note certain background information.

The adoptive mother, forty-four years of age at the time of hearing, is the natural maternal grandmother (hereinafter referred to as the grandmother) of the girl. The record leaves us in doubt concerning the here unimportant detail as to whether the adoptive father, whose age is not given, is the natural grandfather or the stepgrand-father. The only revealed fact pertaining to the girl’s early years was contained in the grandmother’s statement that “I’ve had her practically since birth,” inferentially for undisclosed reasons arising out of the natural mother’s “past” — a subject which the court charitably curtained from view when the natural mother made a fleeting appearance on the witness stand. However, the feeling of the grandmother toward the natural mother was made manifest at the hearing (a) by the natural mother’s undisputed statement that “my mother had wrote and told me that I wasn’t welcome there at the house to see my little girl; she told me that before I left the last time” and (b) by the grandmother’s query to the court, when informed of his finding at the close of the hearing, “you ain’t going to turn her [the girl] back over to the mother?”

The grandparents obtained their decree of adoption and thus became the adoptive parents of the girl in 1964, only “a few months” prior to the neglect proceeding. The attorney, who was guardian ad litem for the girl in the adoption proceeding, was called as a witness in the neglect proceeding. When asked about his investigation and recommendation in the adoption proceeding, he stated that, even though the grandmother had been “quite strict with the child,” he had been of the opinion that she was not mean or abusive and that, “since it was the only home that the child had ever known,” he had recommended that adoption be decreed. He observed that “perhaps from the health standpoint it was not too good because of [the grandfather’s] condition,” which, although not developed in evidence, was such that the grandfather was in a state sanitarium at the time of the occurrence giving rise to the neglect proceeding. However, we record parenthetically that he was home when the proceeding was instituted on June 21, 1965, was served with summons on that date, and was represented by counsel at the hearing on June 28. That the possibility of obtaining additional financial aid may have been one of the considerations motivating the grandparents’ petition for adoption of the girl is suggested by the grandmother’s inquiry, after being informed of the court’s decision in the neglect proceeding, “will they have to take the disability social security and return it back to the social security office ?”

About 6:40 A.M. on Tuesday, June IS, 1965, witness Lucille T-, who lived in the seeond house from the grandparents’ home, heard the grandmother “beating the child” and “the little girl crying.” The witness said that it continued until about 7Ú5 to 7:20 A.M. when the girl “commenced crying ‘Mama’ ” — “those cries of ‘Mama’ would just make your blood run cold” — “you could tell from the voice that the child was just desperate.” The grandmother “was in a rage” — “not going to have this in my house.” Since she did not see the beating, the witness did not know what the grandmother was using; but the witness insisted that whatever was in use was striking “flesh.” As the witness put it, after “I took over thirty minutes of it . . . I called [the county welfare director] to get some help.”

At the request of the welfare director, peace officers went to the grandmother’s home and asked her to take the girl to the director’s office, which she did. The welfare director had known the girl “for a long time” — “she is a very attractive, weak child.” Observing the stripes and bruises on the girl’s arms and legs and a deep cut and bruise on her left temple, the welfare director told the grandmother “that we wanted to take the little girl to a doctor.” There was no formal request for the grandmother’s permission and, on the other hand, the grandmother voiced no objection to the proposed examination. Whereupon, the girl was taken to the office of a medical doctor, who examined and treated her and arranged for twelve black-and-white photographs of the girl to be made while she was still in his office.

Upon hearing, the doctor testified that the girl had “numerous traumatic injuries to her skin and to her soft tissue,” including many bruises and contusions, some of which were “actually superficial lacerations,” on her head, neck, thorax, buttocks, thighs and legs, and a “laceration area with acute swelling and bruising” on the left forehead and temple. Some of the girl’s injuries were fresh while, in the doctor’s opinion, the duration of other injuries ranged from twenty-four hours to two weeks. The bruises, contusions and lacerations were so numerous that, when the court invited the doctor to count or estimate their number, the latter thought that “it wouldn’t be impossible but it would be a task.” The twelve photographs, in their totality, portray the entire head, body and extremities of the girl and establish, even more graphically and indisputably than the clear, cogent and compelling testimony of the medical examiner, the veritable multitude of grievous hurts inflicted on the girl.

The grandmother did not deny, and could not well have done so, the existence of multiple indicia of trauma to the girl. In fact, she testified that, when the peace officers had come to her home on the morning of Tuesday, June 15, she (the grandmother) had been, at that very moment, engaged in getting the girl “ready to go to the doctor,” an osteopath who had been the “family physician for approximately eighteen months.” However, the grandmother did deny that she had inflicted any of the bruises, contusions or lacerations and undertook to account for them by a vivid recital of the following-described series of alleged incidents in which (so she said) the girl had sustained those objective evidences of trauma.

(1) On Saturday, June 12 (three days prior to the medical examination), the girl had fallen through a hole in the rotten bed of a farm trailer sitting in the back yard. This had “blackened her leg,” which the grandmother “was doctoring myself.” (2) About 2:30 P.M. on Monday, June 14, the girl had fallen some ten to eleven feet out of a tree, while emulating the miraculous feats of “Superman.” “She [the girl] got up and run off and just rubbed her head and went on playing just the same with the other kids.” (3) While the grandmother was mowing the back yard about 5 P.M. on Monday, June 14, the girl and three of her cousins (two girls, six and five years of age, and a boy, three years old, temporarily in the grandmother’s care) “had a hickory fight” with some switches in the front yard. (4) Shortly after the grandmother had stopped the “hickory fight” and had gone to the garden to gather beans, she “heard a scream” and, returning to the front yard, found the children “fighting” and striking each other with toy brooms and a toy gun. She took the girl inside “and rubbed this lotion on her.” (S) About 7 A.M. on Tuesday, June 15, the girl had a pillow fight in bed with her dog, who “scratched her down the front with his toenails.” The grandmother “hollered” at the girl, “don’t lay there and wet the bed”; but, either before or after that admonition, the girl did “wet the bed.” When she got out of bed, the girl “come on running . . . right by the heater and she either tripped over her doll or else the dog’ reared on her and knocked her down and she bumped her head on the side where it was cut . . „. About that time I just retched down and spanked her tail and told her to get in there so I could get the wet bloomers off of her and change her and get her ready to go to the doctor. ... So about that time the law rolls up . . .

The welfare director testified that, when the girl was brought to her office, the grandmother first told her that “a little niece had pushed [the girl] down on the sidewalk and the dog had scratched her and then she later told me that she had tickled [the girl] with a switch and . . . that she had used her hand on her.” In fact, the grandmother “changed her story I don’t know how many times” about the manner in which the girl had sustained her injuries— “she [the grandmother] told me one thing and then when she realized she was headed for trouble, she told me something else.”

In urging their contention that the evidence was “wholly insufficient” to permit a finding that the girl was a neglected child, counsel for the grandparents brand witness Lucille T- as having had “a rather vivid imagination which ran away with her sense of reasoning and resulted in the making of a complaint” to the welfare director, and they dismiss her testimony as “not considered [by them] to be of any particular value in this proceeding.” Nevertheless, in interrogation of the grandmother, her counsel sought to explain in part, rather than to deny in its entirety, the testimony of witness Lucille by conceding that, in fact, the grandmother had been “hollering at the child” that morning and the girl had been screaming, but showing that none of this was caused by physical abuse or even corporal punishment. To that end, the grandmother testified: “That morning, yes, I hollered' in there at the child and she jumped up and down and when I said I’d have her dog shot she says, T won’t do it again; I won’t do it again, Mommy’ . . . . She jumped up and down and screamed and run around there, and I just picked up the featherbed and carried it out that she had wet on . . . and I went back and I says, ‘well, you just scream it up.’ I says, ‘shut up and get in the bathroom so I can get you changed.’ ”

At the conclusion of the hearing, the discerning trial judge told the grandmother that, although “I don’t want to be unnecessarily harsh with you or to hurt you unnecessarily . . . I’m frank to say that I don’t believe your story about how she got the bruises.”

It is true that, as counsel for the grandparents emphasize, the court’s rejection of the grandmother’s proffered explanation of the girl’s injuries did not constitute affirmative proof that the grandmother had inflicted any of those injuries. In the case of In re M- PS-, Mo.App., 342 S.W.2d 277, 282-283, upon which the grandparents in this proceeding principally rely, the record was utterly devoid of evidence from which the trier of the facts reasonably could have identified and fixed responsibility upon any particular individual for the injuries to the minor subject of that judicial inquiry. That is not the situation in the case at bar, for the transcript before us contains the significant testimony of witness Lucille who heard the grandmother “in a rage” and “beating the child,” heard the girl’s “cries of ‘Mama’ [that] would just make your blood run cold,” knew “that the child was just desperate,” and “took over thirty minutes of it” before she (witness Lucille) called for help. We also note the testimony of the examining doctor that, in response to an inquiry by him, the girl had said that “that morning she had been hit by her [grandmother], that this caused her to fall and she struck her head on the side of the step.” Regardless of whether some of this testimony might have been excluded upon timely and appropriate objections or motions to strike, its probative worth and effect were for the trier of the facts, since it was received without such objection or motion.

In this court-tried proceeding, we accord due regard to the opportunity of the trial court to judge of the credibility of the witnesses, and we indulge the presumption that the decision of the trial judge was motivated by what he believed would be best for the child. In re Burgess, Mo.App., 359 S.W.2d 484, 492; State v. Greer, Mo.App., 311 S.W.2d 49, 51(5). Of course, we remain mindful that the grandparents are the adoptive parents of the girl and that, in neglected child proceedings as in other cases, parents are not to be deprived of the care, custody and companionship of their children except for grave reasons [State v. Pogue, Mo.App., 282 S.W.2d 582, 588(6-8); State v. Greer, supra, 311 S.W.2d at 51(6); In re O-, Mo.App., 372 S.W.2d 512, 514(2)]; but, in any proceeding involving the custody of a minor child, the consideration of supreme importance which transcends and overrides all others is the welfare of the child. As our courts repeatedly have emphasized: “ . . . the issue of the welfare of the child . . . is an issue always to be kept in view in all legal proceedings involving the custody and control of a minor child as to which the state stands in the relation of parens patriae. In other words, whenever a minor child is brought within the jurisdiction of a court for an adjudication with respect to the question of its custody, the child becomes the ward of the court; and in determining the question of its ultimate disposition, the child’s well-being is of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interests of the child. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286.” (Emphasis ours) In recognition and application of the quoted principle, parents are deprived of the custody of their children in proceedings of this character, when the welfare of the children so demands.

Without further belaboring the facts, suffice it to say at this point that we are of the considered opinion that the evidence in the instant proceeding permitted and justified the finding that the grandmother had inflicted physical abuse upon the girl; and, with appropriate respect for the above-stated principles, certainly we cannot say that the judgment under review was “clearly erroneous.” Rule 73.01(d); Section 510.310(4).

The only other point presented in the grandparents’ brief is that the trial court erred in permitting the doctor to testify. Counsel’s argument on this point is not that the doctor was an incompetent witness by reason of the physician-patient relationship [Section 491.060(5)], an objection discussed and disallowed in the case of In re MP- S-, supra, 342 S.W.2d at 283 (9-11), but rather that the doctor should not have been permitted to testify because, when he examined the girl on June 15, 1965, the juvenile court had not ordered the girl to be taken into custody [Section 211.101 (3)], the jurisdiction of the court over the girl had not attached [Section 211.131], and the court had not ordered an examination of the girl. Section 211.161(1).

The stated point has not been preserved for our consideration. “The practice and procedure customary in proceedings in equity shall govern all proceedings in the juvenile court.” Section 211.-171(6). In proceedings in equity as in actions at law, the mandatory requirement is that, excepting only those questions particularized and enumerated in Rule 79.03, errors must be presented to the trial court in a motion for new trial in order to be preserved for appellate review. The grandparents-appellants in the instant proceeding filed no motion for new trial. Nevertheless, their principal complaint, i. e., that the evidence was wholly insufficient to permit the court’s finding that the girl was a neglected child, has been accorded our careful, conscientious consideration and has been ruled on its merits as is proper under our appellate procedure. But their complaint that the trial court erred in permitting the doctor to testify has not been preserved for review.

With respect to that assignment of error, we recall, however, (a) the grandmother’s testimony that, when the peace officers asked her to take the girl to the welfare director’s office, she was engaged in getting the girl “ready to go to the doctor” and (b) the welfare director’s uncon-tradicted testimony that, when she told the grandmother “that we wanted to take the little girl to a doctor . . . she [the grandmother] didn’t object.” The grandparents have not invoked our consideration of any alleged error under Rule 79.04; and, in the recorded circumstances of this case, we sense no “manifest injustice or miscarriage of justice” [Rule 79.04] which would justify further discussion, sua sponte, of the complaint about the doctor having been permitted to testify. In re C-, Mo.App., 314 S.W.2d 756, 760. See Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234-235(7).

The judgment is affirmed.

RUARIC and HOGAN, JJ., concur.

      . P- D- v. C- S-, Mo.App., 394 S.W.2d 437, 443(4) ; Pellows v. Farmer, Mo.App., 379 S.W.2d 842, 846(2) ; Turner v. Yellow Cab Co. of Springfield, Mo.App., 361 S.W.2d 149, 154-155(1); Edmisten v. Dousette, Mo.App., 334 S.W.2d 746, 753; Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 302(9).

      . Rule 73.01(d); Section 510.310(4); In re O-, Mo.App., 372 S.W.2d 512, 514(4); In re Burgess, Mo.App., 359 S.W.2d 484, 492; State v. Greer, Mo.App., 311 S.W.2d 49, 50-51(3, 4).

      . In re J-, Mo.App., 357 S.W.2d 197, 200(3); State v. Pogue, Mo.App., 282 S.W.2d 582, 588(10). See Good v. Good, Mo.App., 384 S.W.2d 98, 101(3); C- v. B-, Mo.App., 358 S.W.2d 454, 459(1).

      . Ex parte DeCastro, 238 Mo.App. 1011, 1015, 190 S.W.2d 949, 951(1); In re Shepler, Mo. (banc), 372 S.W.2d 87, 90-91(2); In re Duncan, Mo. (banc), 365 S.W.2d 567, 571, 4 A.L.R.3d 1270; In re R. D. H. S., Mo.App., 370 S.W.2d 661, 666(1).

      . In re O-, supra note 2; In re Burgess, supra note 2; In re J-, supra note 3; In re J-, Mo.App., 356 S.W.2d 508; Minor Children of F. B. v. Caruthers, Mo.App., 323 S.W.2d 397. See In re C-, Mo.App., 314 S.W.2d 756.

      . Rule 79.03; Adams v. Richardson, Mo., 337 S.W.2d 911, 915(1); Nickels v. Witschner, Mo., 270 S.W.2d 848, 849(2); State ex rel. Morton v. Cave, 359 Mo. 72, 79, 220 S.W.2d 45, 49(4); Aetna Ins. Co. v. O’Malley, 343 Mo. 1232, 1239, 124 S.W.2d 1164, 1166(3); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5, 6); ABCO Assisting Building Const. Office v. Bagley & Co., Mo.App., 304 S.W.2d 43, 47(2).

      . Rule 79.03; Handlan v. Handlan, 362 Mo. 1180, 1188, 247 S.W.2d 715, 718(2); Gross v. Merchants-Produce Bank, Mo. App., 390 S.W.2d 591, 594(2); Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40, 42(2); Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 195-196(1).


author: CULLEN, Commissioner.

text:
    Gerald R. MAYES, Appellant, v. Carlie Fay COE et al., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Richard L. Garnett and Dale Burchett, Glasgow, for appellant.
    Wilson, Baker & Herbert, Glasgow, for appellees.
   CULLEN, Commissioner.

Appellee Carlie Fay Coe, owner of a motel of which appellant Gerald R. Mayes was in possession under a purchase contract calling for monthly payments over a period of years, ousted Mayes and retook possession of the motel because of a claimed breach of the contract by Mayes. The latter brought the instant action seeking restoration of possession and damages. After a trial the circuit court entered judgment dismissing the complaint. Mayes has appealed from that judgment.

Among other things, the purchase contract authorized repossession by the seller in the event of a default for a period of more than 30 days in the making of any monthly payment. The claimed existence of such a default was one of the reasons asserted by Coe for repossessing the motel. The circuit court found that there was such a default. Mayes maintains on this appeal that he was not in default and actually was in the position of having overpaid his obligation.

Our examination of the evidence, both oral and documentary, convinces us that the following statement presents a reasonably true picture of what happened. The seven monthly payments due under the contract up to and including May 25, 1963, were paid and receipted for. (Some of the payments were late and involved the making good of a few “cold” checks. Coe had made known to Mayes that he was not pleased with the delay and trouble.) Another payment was due on June 25. The contract was forfeitable if that payment were not made by July 25. Early in July Mayes gave Coe a check for $50, which proved to be “cold”. Mayes and Coe then had a discussion as a result of which Mayes gave Coe a new check, postdated to July 18, for the full $200 due for June 25. Mayes also turned over to Coe a used Jaguar automobile at an agreed value of $850, and they agreed (as evidenced by a written memorandum) that $450 would be credited on the principal of the purchase price and the remaining $400 would he considered a credit of $100 per payment on the four payments thereafter to fall due on July 25, August 25, September 25 and October 25. Unfortunately the $200 postdated check also turned out to be “cold”. A further cause of irritation was that the authorities refused to issue a license for the Jaguar because its identification number was missing and the person listed as owner on the title papers denied ever having even heard of the car. When July 25 went by without the $200 payment for June 25 having been made good, Coe repossessed the motel.

We think it is clear that the payment for June 25 was not made. All that Coe received for this payment was two worthless checks. However, Mayes argues that by virtue of the Jaguar transaction he had an $850 general credit which could and should apply against the June payment. The trouble with that argument is that the parties expressly agreed that the credit would be applied specifically, part to principal and part to future payments. It is clear that the parties intended the June payment to be paid as per the contract.

The simple truth is that Mayes was in default on the June 25 payment for more than 30 days and this gave Coe the right to repossess. While Coe had not asserted a forfeiture when some of the previous payments were late, he had not led Mayes to believe that late payments would always be condoned. On the contrary, it appears that at the time of the Jaguar transaction Coe not only was insisting on timely payment for June but was demanding some security against future delays.

The view we have taken makes it unnecessary for us to consider other questions discussed in the briefs, such as the effect of a failure of consideration in regard to the down payment on the motel made by the original purchaser (whose rights were purchased by Mayes).

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Charles Burton SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Stuart L. Lyon, David Kaplan, Louisville, for appellant.

      Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Charles Burton Smith was convicted of willful murder of Elizabeth Duncan and received a life sentence. On his appeal he urges that certain statements and a photo were wrongfully admitted into evidence.

Charles and his so-called common-law wife, Nancy Edna Phillips, went to the West End Sportsmen’s Club on December 31, 1964, ostensibly to celebrate New Year’s Eve. Their three small children were left at home in care of Elizabeth Duncan, an eighteen-year-old girl.

At approximately 10 p. m., appellant was driven to his home by Alford Alonzo Jackson. After having been in the house a short while appellant emerged and told Jackson to tell Nancy that he had driven appellant to the Bronze Lantern. Jackson next saw appellant near the West End Sportsmen’s Club about 12:05 a. m. Appellant called Nancy aside and talked to her. She began crying and started walking home. At appellant’s request Jackson took Nancy home. They found police officers there. The police were directed to appellant’s whereabouts. He was arrested and returned to the scene of the crime. He was delivered into the hands of the officers to whom he later made a written statement. One of the officers testified that appellant volunteered information concerning the knife used in the homicide. The knife was found where appellant had said it was.

Nancy testified that the reason she cried was because appellant had said he thought he had “done something” and asked her for money with which to leave town.

The dead body of Elizabeth Duncan was found face down on the sidewalk across the street from appellant’s home. The victim had on a black elbow-length sleeve sweater, stockings, and a garter belt. There was a ten-inch laceration on the right side of the body about two inches above the hip. A big part of the large intestine was protruding. The victim had been cut or stabbed ten times, the fatal blow being a stab wound in the heart. From around the body, in the gutter, across the street, on the fence, through the broken window, and through several rooms in appellant’s residence there was a trail of blood, fatty tissue, parts of the intestine, and bowel matter. In the house near a couch a pair of stretch pants was found, turned inside out. On one leg was found some white panties rolled down in the same manner as the stretch pants, indicating, so an officer testified, that both articles had been removed at the same time. There were indications of a struggle in the room. A dress shirt, with the collar torn, and a T-shirt were found in the bathroom with blood and bowel matter smeared on them.

Appellant was arrested shortly after midnight. He was taken by officers to the police station after he had shown them where to find the knife he had used. About 2:25 a. m. he gave a written statement in which he admitted chasing the victim through the house with a knife and inflicting the wounds which caused the death of Elizabeth Duncan.

The statement signed by appellant contained the following prefatory and concluding parts:

“I, Charles Burton Smith, have been advised by this detective taking this statement that this statement can be used for or against me in a court of law. Also I have been asked if I have a lawyer, I do not have any lawyer, nor do I know who I will get to represent me in court.”
“I have given this statement of my own free will without threats or promises, and I have read this statement before signing same, and find that it is true to the best of my memory. I have also signed this statement. Again I have been advised that this can be used for or against me in a court of law. I have also been advised that Elizabeth has died, and that I am to be arrested for wilful murder.”

The statement was taken by Officer Carl Corder. Detective James Bader was present part of the time. At a hearing in chambers held by the trial judge to determine the admissibility of the statement, Corder testified concerning the giving of the statement, including the warnings quoted. From the testimony so heard, the trial court found that the statement was admissible and competent as being voluntary. KRS 422.110(2). Appellant did not testify at the hearing in chambers or thereafter.

Appellant contends that a prior oral statement made to Bader was incompetent and the later written statement to Corder and Bader was also incompetent as flowing from the first statement. It is urged that the first statement was incompetent because appellant was intoxicated and was not informed of his constitutional right to remain silent.

It is true that appellant was not advised of his rights by Bader, whose uncontra-dicted statement of explanation follows:

“Here’s the thing of it, when he was turned over to me the officers told me that he admitted the slaying. So I asked him — or me and my partner asked him what did he do with the knife and he volunteered the information as to where it was.”

Bader said that appellant had been drinking but was sober.

Appellant relies on Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The only testimony concerning appellant’s first statement comes from Detective Bader, who said that appellant had already admitted the slaying to other officers. There is no other testimony concerning the statement made to the other officers. The only information given by appellant to Bader was the location of the knife used.

In Escobedo it is necessary, in order to establish a violation of the Sixth Amendment, to show “the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent.” There has been much misconstruction of Escobedo and a lot of misguided reliance thereon. It is not the answer in every case. From the testimony here, appellant must have freely admitted the killing when first arrested. At least the only testimony on this point is consistent with such interpretation. It is not to be understood under Escobedo that a murderer can voluntarily admit his guilt to an arresting officer and not have such admission used against him. In the light of the uncontroverted facts here, none of the Escodebo requirements has been shown. The statements made by appellant were properly admissible. Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. denied 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825; Hamilton v. Commonwealth, Ky., 401 S.W.2d 80 (decided March 25, 1966).

Appellant objected to the admission into evidence of a photo which showed the victim’s half-naked body face down on the sidewalk where she fell. Blood stains were on the sidewalk. It is urged that the photo had no probative value and served only to inflame and prejudice the jury. A short answer to this contention is that the testimony of this case, as detailed above, shows such a savage and revolting murder that the photo could not have been prejudicial. Under the facts of this case and in view of the fact that the appellant received only a life sentence instead of a death sentence, appellant cannot be said to have been prejudiced by the introduction of the photo. Coffey v. Commonwealth, Ky., 256 S.W.2d 379; Poe v. Commonwealth, Ky., 301 S.W.2d 900.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    BEACHCOMBER CLUB, INC., Marvin W. Berg, Don Rigazio, and Sandy Paniello, Petitioners, v. Honorable J. Paul KEITH, Jr., Judge, Jefferson Circuit Court, Common Pleas Branch, Sixth Division, Respondent.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Sandy Paniello, Louisville, for petitioners.
    Harry L. Hargadon, Jr., Hargadon, Har-gadon, Lenihan & Harbolt, Louisville, for respondent.
   DAVIS, Commissioner.

The petitioners, Beachcomber Club, Inc., Marvin W. Berg (President of the Beachcomber Club, Inc.), Don Rigazio, and Sandy Paniello (the latter two being sureties on a traverse bond in behalf of the Beachcomber Club, Inc.), invoke the original jurisdiction of this court seeking an order prohibiting the respondent, as judge of the Jefferson Circuit Court, Common Pleas Branch, Sixth Division, from proceeding further in an action pending before that court against the petitioners. The plaintiff in the circuit court suit which petitioners would compel respondent to terminate is Amelia Guthrie.

Amelia Guthrie instituted a forcible de-tainer action against the Beachcomber Club and Berg in a magistrate’s court in Jefferson County. KRS 383.210. On August 13, 1964, an order was entered by the magistrate finding the Club and Berg guilty of the detainer. The latter traversed, and Rigazio and Paniello subscribed the traverse bond as sureties. KRS 383.255.

Subsequent proceedings were had in the Jefferson Circuit Court pursuant to the traverse. On February 26, 1965, prior to any determination of the issues on the merits, the Jefferson Circuit Court entered an order, pursuant to motion of the traver-see Amelia Guthrie, by the terms of which it was ordered that the action “ * * * be and the same is hereby dismissed with prejudice at costs to the defendant.” When motions of the Club and Berg to set aside that order were unavailing, they undertook a direct appeal to this court. That appeal was dismissed November 16, 1965, because it was improperly prosecuted as a matter of right without a showing of the requisite jurisdictional sum involved warranting such an appeal. KRS 21.060.

Thereafter Amelia Guthrie filed an amended complaint in the same proceeding (the traverse proceeding) in the Jefferson Circuit Court, asserting entitlement to damages in the sum of $875, plus attorney’s fees expended in the aggregate sum of $2250 (of which $750 was alleged to have been incurred incident to the proceedings in circuit court and $1500 incident to the proceedings in this court). The sureties, Rigazio and Paniello, were first brought into the proceedings by the last amended complaint. The Club, Berg, and the sureties filed a plea in abatement, asserting that the circuit court had lost jurisdiction by reason of the order of February 26, 1965, dismissing the action “with prejudice.” No order was entered disposing of that defense, but Amelia Guthrie’s motion to dismiss “without prejudice” was sustained, and an order entered to that effect.

Then Amelia Guthrie filed a new action, seeking recovery of the same items, namely damages of $875 and attorney’s fees of $2250. The present petitioners moved the court to dismiss the action on the basis that the February 26 order dismissing “with prejudice” made applicable the doctrine of res judicata. The respondent judge overruled the motion to dismiss, and will proceed to adjudicate the matter on its merits unless the relief sought here is granted.

We deny the relief sought because the conditions precedent for affording it are not demonstrated. It is fundamental that this court will not prohibit the judicial actions of a circuit judge unless the threatened actions are beyond the jurisdiction of the trial court, or, if within the court’s jurisdiction, the actions are erroneous and great and irreparable injury will result, with no other adequate remedy available to the petitioner. Jones v. Tartar, 308 Ky. 813, 215 S.W.2d 955; Massengale v. Warren, Ky., 378 S.W.2d 221.

It is plain, we think, that the Jefferson Circuit Court has jurisdiction of the parties and the subject matter. Whether the plea of res judicata is available to the petitioners is a justiciable issue within the court’s basic jurisdiction. Moreover, other adequate remedy by appeal is available, nor is there any showing of threatened irreparable injury. In these circumstances the relief sought must be, and is, hereby denied.


author: MILLIKEN, Judge.

text:
    Guthrie HOPKINS, Appellant, v. WISCOMBE SOUTHERN PAINTING COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.

      A. Roy Copeland, Andrew J. Palmer, Pa-ducah, for appellant.
    Robert Matthews, Atty. Gen., J. Keller Whitaker, Frankfort, Terrell, Schultzman & Hardy, Paducah, Stuart E. Alexander, Louisville, for appellees.
   MILLIKEN, Judge.

This is an appeal from an order of the trial court reversing and remanding the case to the Workmen’s Compensation Board for a reconsideration of the degree of disability found by the Board. The Board had found the claimant to be permanently and totally disabled in his work as a construction painter, and the trial court concluded on appeal of the award that his work record clearly indicated that he was only partially disabled.

Besides the pay scale, construction painters are distinguished from ordinary house painters and decorators by the nature of their work which involves the use of sandblasting equipment and compressed air and the use of scaffolding and hoists, and requires considerable physical strength and agility from its practitioners who often work at heights over a hundred feet. The claimant here was suspended in a bosun’s chair cleaning the surface of Barkley Dam when struck on his helmet by a crowbar dropped from above. The helmet was shattered, the claimant was dazed, but apparently able to lower himself to the ground and get help. He suffered fractures of the spinus processes of the fifth, sixth and seventh cervical vertebrae, and did not return to work for approximately four months. The medical testimony placed his permanent disability at from 5% to 10% of the body as a whole without relating it to his vocation.

The claimant had been a construction painter for eighteen years and was established in his vocation as one who could do all aspects of the work. Since his return to work he has found himself limited in his ability to do several of the required aspects of his vocation as a construction painter. For example, he has not been able to hang his own rigs, pull his own weight and get around like he did before the accident, but has been favored with work at lower levels. He has had fairly steady job opportunities in Birmingham, Memphis and Cincinnati, places where he worked at various times since his injury. However, he has had to rest a bit longer between jobs.

A former Union supervisor testified as to the claimant’s reduced capacity for the work, his inability to lift and to move about with his normal ease. While the claimant has enjoyed an increased pay scale since his injury and in that sense is doing well, we have the impression that his current ability to find employment as a construction painter in his present condition has been caused by an apparent shortage of such skilled workers, and that the claimant will experience a disproportionate difficulty in obtaining such work when the demand and supply for construction workers becomes better balanced unless, of course, the claimant’s physical condition improves.

We have not gone into further detail in discussing the testimony for, like the trial court, we conclude that the claimant’s current disability, though probably permanent, is presently partial and not total, and agree with the trial court that the case should be remanded to the Board for an evaluation of the percentage of permanent, partial disability. If, in time, through a change of condition, claimant does become totally disabled the Board may reconsider.

•The judgment is affirmed. .


text:
    Verona MARUS and Frances Ann Marus, Suing by her Mother and Next Friend, Verona Marus, Appellants, v. UNITED STATES STEEL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Rehearing Denied June 3, 1966.
    C. W. Napier, Jr., Hazard, for appellants.
    William A. Rice, Harlan, Robert Matthews, Atty. Gen., Frankfort, for appel-lees.
   DAVIS, Commissioner.

The appellants, Verona Marus and Frances Ann Marus, are the surviving widow and only child, respectively, of Frank Marus. As such dependants, they sought benefits alleged to be due them under the provisions of the Workmen’s Compensation Act. KRS, Chapter 342. The Workmen’s Compensation Board denied appellants’ claim and the action of the Board was affirmed in the circuit court. Hence, this appeal. The nature of the claim at bar is novel, and requires recitation of the factual background before stating the question at hand.

Frank Marus worked in coal mines of United States Steel Corporation (and its predecessor) for many years, until physical disability forced his cessation of work on September 14, 1960. Extreme shortness of breath was the most significant manifestation of the disability of Marus at that time. After a doctor had diagnosed his condition as silicosis Marus filed a claim for compensation, asserting total permanent disability. KRS 342.316.

That compensation proceeding terminated September 4, 1963, in a finding and holding by the Board that Marus did not suffer from silicosis. Accordingly, the claim was dismissed and compensation was denied. No appeal was taken from that order of the Board.

It is to be noted that in the proceedings for compensation by Marus two doctors testified that Marus was disabled by reason of silicosis and three held a contrary view. Upon that showing, the Board ordered independent examination of Marus by a physician selected by the Board — Dr. Oscar O. Miller. Dr. Miller examined Marus and made a detailed report; he also gave his deposition in the original proceeding. It was the opinion of Dr. Miller that Marus was disabled as a miner, from emphysema, but that he did not have silicosis, and that the emphysema was not attributable to his occupation as a coal miner. The Board, in its Opinion and Order dismissing the claim, accepted the views of Dr. Miller and the other three doctors, using this language:

“Drs. Miller, Cornish, Gernert and Quillin state plaintiff is not disabled as a result of any occupational disease or silicosis. The firmness of defendant’s doctors plus their predominately superior qualifications cause us to follow the opinion of defendant’s doctors.”

Marus was never able to resume working. He died on February 7, 1964. An autopsy protocol attributes the cause of death to “Coronary thrombosis, right, acute.” Contributory cause of death is shown as “Arteriosclerotic heart disease.” In a “Summary of (gross and microscopic) Diagnoses,” the autopsy protocol lists eight factors in numerical order, as follows:

1. Coronary thrombosis, right, acute.
2. Arteriosclerotic heart disease severe.
3. Cardiomegaly with hypertrophy and myocardial fibrosis, posterior wall, and septum, left ventricle.
4. Nodular pneumoconiosis, minimal.
5. Hepato-splenomegaly, due to chronic passive congestion.
6. Perisplenitis, chronic with adhesions.
7. Cholelithiasis,
8. Arteriolonephrosclerosis, benign.

For appellants, Dr. Dwight M. Kuhns, who participated in the autopsy, gave evidence, in pertinent part as follows:

“A. I think — I believe I just stated an (sic) answer to the question before, that I felt that the heart failure could have been partially the result of the silicosis.
Q. Is that your opinion that it was, doctor ?
A. That is my opinion.”

Dr. Kuhns explained that a slowing of the bloodstream heightened the tendency for formation of thrombi, and that pneu-moconiosis and emphysema cause such slowing of the bloodstream, together with a hypertrophy of the heart. Cross-examination of Dr. Kuhns included the following question and answer:

“Q. As far as you can tell from the autopsy findings, it is well within the realm of probability that this man would have died from coronary thrombosis brought on by arteriosclerotic heart disease, even if he did not have pneumo-coniosis, isn’t it?
A. That is correct.”

Medical testimony presented for appellee flatly asserted that the death of Frank Marus was not related to any occupational disease. The Board chose to he persuaded by the evidence for appellee. We think there is no doubt that the finding of the Board in this respect is abundantly supported by substantial evidence. It is fundamental that the court will not disturb the Board’s finding in such state of case 19 Ky.Digest, Workmen’s Compensation, ^19Z9.

Appellants present the unique contention that KRS 342.316(5) affords entitlement for compensation, since it is shown that Marus had made timely claim (albeit denied) for compensation, and had remained totally disabled until his death, which occurred within ten years from the date of the disability. The statute relied on is as follows:

“342.316(5) The amount of compensation payable for disability due to occupational disease or for death from such disease, and the time and manner of its payment, shall be the same as provided for accidental injury or death under the general provisions of the Workmen’s Compensation Act, but in no event to exceed such amounts as were in effect at the time of the last injurious exposure, and, provided further, that the time of the beginning of compensation payments shall be the date of the employe’s last injurious exposure to the cause of the disease, or the date of actual disability, whichever is later, and provided further, that in case of death where the employe has been awarded compensation or made timely claim within the period provided for in this section, an employe has suffered continuous disability to the date of his death occurring at any time within ten years from the date of disability, his dependents, if any, shall be awarded compensation for his death as provided for under the general provisions of the Workmen’s Compensation Act and in this section.”

We think the statute just quoted does not furnish basis for recovery in the case at bar. In the first place, the Board found that Marus did not suffer an occupational disability; no appeal was prosecuted from that finding. Secondly, bypassing the question whether any review of the original finding may be had upon the grounds here presented (KRS 342.125), there is a finding by the Board that the death of Marus did not result from an occupational disease. The finding of the Board in that respect is based on evidence of substance, as we have already noted. To allow recovery, despite the facts just mentioned, would require a holding that KRS 342.316(5) means that when death occurs within ten years after an employee has become disabled — no matter what the cause of the disability — the dependents of the employee may have benefits under the Act, provided the employee had made a timely filing for benefits — without reference to what disposition had been made of the claim. We are unable to accept the argument that the statute implies any such meaning.

The judgment is affirmed.