author: BARRETT, Commissioner.

text:
    Charles Lee WALTERS and Nancy Jane Walters Stevens, a minor, by Eloise Walters, her Guardian, Plaintiffs-Appellants, v. H. L. LAWLESS, Odist Low, and the Equitable Life Assurance Society of the United States, a Corporation, Defendants-Appellants.
    No. 50167.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.
    Motion for Rehearing and to Transfer to Court En Banc Denied Sept. 14, 1964.
    C. A. Powell, Powell, Jones & Ringer, Dexter, for plaintiffs-appellants.
    Wayne B. Wright, Henry C. Bryan, Jr., McDonald, Barnard, Wright & Timm, St. Louis, Joe Welborn, Bloomfield, Claude Arnold, Dexter, James E. Spain, Briney & Welborn, Bloomfield, for defendants-appellants.
   BARRETT, Commissioner.

This is another case with its origin in that everlastingly vexatious phrase, this time in a 1913 will, “heirs of the body.” The plaintiffs are the great-grandchildren of the 1913 testator John N. Miller. His will, insofar as material, devised his land in fractional shares to his daughters, here to his daughter Minnie a one-sixth fractional interest for life “with remainder to the heirs of their hodies.” By reason of the several fractional devises and alleged ambiguities Mr. Miller’s executors instituted a suit, joining his wife and children, to construe the will. The will was construed resulting in a finding, subject to certain adjustments to bring about equality in value, that all real estate should be valued as a whole “and divided into six equal parts, one of which should then be conveyed to each of said adult devisees, whether in fee, or only for life with remainder to others.” Following this decree the widow and all other devisees of John N. Miller, together with their spouses, on September 7, 1914, executed a deed, the parties now call it a partition deed, by which they conveyed 290.21 acres to Minnie Walters “during her life with the remainder to the heirs of her body as devisees under the will of John N. Miller.” It does not appear what became of the balance of the 290.21 acres, but in 1936 two separate eighty acre parcels of the tract were sold under the Jones-Munger Act for delinquent taxes for the years 1930-1935 to A. and Estelle Sophian. The Sophians assigned these certificates, one for $276.77 and the other for $419.98, to M. L. Manion and accordingly in 1938 the Collector of Stoddard County executed deeds conveying the 160 acres to Mr. Manion. The next step was that on November 24, 1937, Minnie B. Walters the daughter and devisee of John N. Miller (then single and aged 58 years) and grantee in the 1914 deed, together with her only son Lee and his wife Eloise (the father and mother of the present plaintiffs, aged 22 and 19 years at the time of trial), for a recited consideration of $500 executed a quitclaim deed to Mr. Manion to the 160 acres. On November 9, 1938, M. L. Manion, a widower, for a recited consideration of “$1.00 and other valuable consideration” deeded the 160 acres to his daughter and son-in-law Alvin and Sarah B. Smyth. And while R. Kip Briney had been the collector and issued the original tax certificates to the Sophians, Alvin Smyth was the collector in 1938 and executed to the then holder of the tax certificates, Manion, the tax deeds. Thus the title and the parties stood in 1938. In 1956 the Smyths executed a deed of trust, securing a $12,000 note, in favor of the Equitable Life Assurance Society and, subject to the balance due on the indebtedness, in January 1959, for a total price of $28,000 conveyed the 160 acres to the defendant H. L. Lawless. This is the history in brief outline of the opposing titles; on the one hand Charles and Nancy Walters (Stevens) great-grandchildren of the 1913 testator Miller, grandchildren of the 1914 grantee Minnie and children of Lee and Eloise (Nancy’s guardian) grantors in the 1937 deed, or, in short, “the heirs of the body” against, on the other hand, H. L. Lawless and the Equitable Life Assurance Society, purchasers, grantee and mortgagee from and through the successors to the purchaser at the 1936 tax sale. The circumstance or event that gives rise to or makes at all possible the institution of this action is that Lee Walters, Minnie’s son and the father of these plaintiffs, died in 1952, aged 43 years, prior to his mother. Minnie died March 16, 1959 and it is thus that the plaintiffs became the “heirs of the body” within the meaning of the 1913 will and 1914 deed. And, as stated, Nancy is represented here by her mother who was of course Lee’s wife and a grantor in the 1938 quitclaim deed to Manion.

In these background circumstances Charles Lee Walters and Nancy Jane Walters Stevens, brother and sister, as “heirs of the body” instituted this suit against Lawless, his tenant Low, and the mortgagee insurance company, to quiet the title to the 160 acres of land in Stoddard County, claiming of course that they are the fee simple owners. They offer to refund to the defendants all taxes paid by them and their predecessors in title. In a second count they ask for the recovery of a large sum of money by way of rents and profits due a fee simple owner. In an answer and other pleadings not necessary to set out here the defendants assert Mr. Lawless’ purchase from the Smyths for $28,000 and claim that he and the mortgagee are bona fide purchasers for value without notice of defects in his title, that he made improvements of $15,000 upon the land and was in law and in fact the fee simple owner of the land free of the plaintiffs’ claims.

Having gone thus far in outlining the essential facts perhaps these additional circumstances should be noted before facing up to and meeting the issues involved upon the appeals. In 1936, 1937 and 1938, thirty-five acres of the farm were in woods and the Smyths cleared and put in cultivation .about thirty acres of the wooded area. And throughout these years and until the Lawless occupancy there was virtually no drainage and the land often flooded causing the loss of crops. And prior to the purchase by Lawless there were no improvements whatever on the 160 acres of land. Before buying the farm an abstract of title was brought down to date and Mr. Lawless had .a Bloomfield lawyer examine the abstract. The lawyer gave Mr. Lawless his written opinion that, subject to the Equitable’s deed of trust, the title to the land was “well vested in Alvin Smyth and Mildred J. Smyth.” After completing his contract of purchase Lawless caused adequate drainage ditches to be constructed, built a house, granary and numerous other improvements, all, he says, before he was aware of or was given notice of the plaintiffs’ claims. On May 11, 1959, plaintiffs’ counsel wrote Lawless a letter notifying him and for the first time openly asserting the claims of Charles and Nancy. At that time (a point now made much of 'by counsel for Charles and Nancy) the new chicken house was not finished, Lawless •completed its construction after receipt of ■the letter or notice. Again, with respect to the facts, it should be emphasized that this is but a brief summary of a two-volume record and numerous exhibits all concerning a rather involved if not complicated situation.

In its decree, again summarizing briefly, the court found that on the death of the grandmother, Minnie B. Walters, on March 16, 1959, the fee simple title to the 160 acres of land became vested in Charles and Nancy, the “heirs of the body.” The court found that in 1936 and 1937, when plaintiffs’ father and mother and grandmother executed the quitclaim deed that the value of the land was $4,000, $25. an. acre, that 35 acres had not been cleared and that subsequently Lawless “in good faith and prior to notice of adverse title of Plaintiffs” provided drainage ditches, built a house and made many other improvements totaling in value $20,000. But the court found that since March 16, 1959, the plaintiffs Charles and Nancy were entitled as owners to income and rental value of' $9,200 and that Lawless therefore was entitled to a net recovery of $11,601.59 “subject only to general and special taxes thereon, together with any rights, if any, that have vested in the Equitable Life Assurance Society of the United States.” All parties, both plaintiffs and defendants, have appealed from this judgment and decree.

Five separate briefs have been filed and numerous issues, many of them collateral to and dependent upon how the crux of the matter is decided, have been exhaustively presented. But after noting certain distinctions, or, more accurately, after calling attention to certain matters that are not in point of fact involved, the cause turns on a single factor or claim. The trial court expressly found that there was no evidence of fraud or collusion between Manion and his son-in-law Smyth, the county collector. The court found that the consideration for the tax sales was not inadequate — in short, the court specifically found that the tax sales were valid and "would have divested all the interest of the Plaintiffs herein, had it not been for conveyances appearing of record subsequent to said tax sales.” (Emphasis supplied throughout the opinion.) The appellant “heirs of the body,” respondents as far as'the issue of title is concerned, do not challenge or question this finding. And if this finding of the court is not sufficient to dispose of what is often a litigated point in these cases; it must be carefully noted that this is not an instance in which a life tenant, Mrs. Walters, and her son Lee as a possible “heir of the body” collaborated and purposefully agreed to permit the taxes to become delinquent and the land to sell at a tax sale for the purpose of destroying remainders. Neither the life tenant, Mrs. Walters, nor anyone else with a possible interest, either life estate or remainder, purchased at the tax sale or subsequently bought in an outstanding interest or in any manner again came into interest or title in the land. Thus the appeal is not concerned with a life tenant purchasing at a tax sale, or intentionally participating in an execution sale for the obvious and avowed purpose of destroying remainders. Moore v. Moore, Mo., 329 S.W.2d 742; Gordon v. Tate, 314 Mo. 508, 284 S.W. 497; and McCune v. Goodwillie, 204 Mo. 306, 102 S.W. 997, a leading case relied on by the Walterses here. Upon this record and the briefs of “the heirs of the body” it stands admitted, or conceded, therefore, “had it not been for conveyances appearing of record subsequent to said tax sales,” that the land was subject to being sold for delinquent taxes for the years 1930 to 1935 and that such a valid tax sale necessarily carried with it or destroyed the remainders and conveyed to Sophian, his assignee Manion and to all subsequent purchasers in that chain a fee simple title. Annotation 75 A.L.R. 416; Ragan v. Looney, Mo., 377 S.W.2d 273 and the authorities there collected.

Referring again to the decree and the finding “had it not been for conveyances appearing of record subsequent to said tax sales,” it was the theory of the trial court and it is the basic and underlying theory of counsel for Charles and Nancy (“heirs of the body”) that when Manion, after the tax sales on November 4, 1936, took the quitclaim deed from Mrs. Walters and Lee and his wife Eloise (the guardian here) on November 26, 1937, he and all subsequent purchasers acquired Minnie’s life estate only and were therefore relegated to the position she would have occupied had she purchased at the tax sale. Thus they skip the tax sale and do not directly challenge its validity but contend that the subsequent transfers, particularly the quitclaim deed and the assignment of the tax certificates from Sophian to Manion places the parties and the title in the position they would have occupied had their grandmother and their father purchased at the tax sale and conveyed to Manion. It is said that this conveyance, the quitclaim deed, coming as it did before the assignment of the tax certificates to Manion, constituted a mere payment of the taxes for the benefit of the remaindermen plaintiffs. One quotation from the Walterses’ brief will suffice to illustrate their basic claim and theory: “It was Manion’s duty, as the owner of Mrs. Walters’ life estate to pay all taxes she was obligated to pay during her lifetime. He did not strengthen his title nor destroy the interest of the heirs of the body of Minnie B. Walters by purchasing the outstanding tax certificates, since he already owned the life estate of Minnie B. Walters and then obtained the tax deeds to the property.” Since all these matters are apparent from the abstract of title it is said that Lawless in purchasing the property in 1959 and Equitable in taking the deed of trust from the Smyths “acquired no better title to the land than Manion had.”

Numerous cases and annotations, in addition to those cited by the parties, on every phase of the general subject and of this particular case have been collected and considered but it would not be helpful to encumber this opinion with their citation. There is no disposition to infringe upon established precedents or to change the rules or to add to the complexities of “heirs of the body,” but this case and its particular facts does not clearly fall within any of the settled precedents. “The Destructibility of Contingent Remainders in Missouri” Willard L. Eckhardt, 6 Mo.L.R. 268; 25 Mo.L.R. 392. It will suffice to distinguish two of the cases relied on by the Walterses and thus illustrate their basic theory and demonstrate, possibly, its inapplicability to the particular circumstances of this case, Bullock v. People’s Bank of Holcomb, 351 Mo. 587, 173 S.W.2d 753, and Mathews v. O’Donnell, 289 Mo. 235, 233 S.W. 451. An italicized quotation from the court’s recitation of a part of the pleadings which were the ultimate facts will indicate the general rule and suffice to distinguish the O’Donnell case: “It particularly alleges that one Joseph B. Kinney in 1871 became the owner of an estate therein for life of Fannie A. D. Mathews, and as such owner it was his duty to pay the taxes on the land, but in violation of said duty, and with the intent of acquiring the estate of the owners of the remainder in fee of said property, neglected to pay said taxes and permitted them to become delinquent. Judgment was obtained by the state for said delinquent taxes, and sale made thereunder, and at such sale said Joseph B. Kinney bid in a part of these lands and caused a sheriff’s deed thereto to be made to his mother, Matilda Kinney, thereby attempting to acquire the remainder estates against plaintiff. The defendants claim ownership under deeds made by said Joseph B. Kinney and his mother, Matilda, and had knowledge before the execution of such deeds of ‘the facts and circumstances herein recited.’” In conclusion as to the record and title of the O’Donnells the court said, "The tax deed informed them that the life tenants liad suffered the land to go to sale for delinquent taxes which the law required them to pay.” Mathews v. O’Donnell, 289 Mo. l. c. 248, 268, 233 S.W. l. c. 452, 459. In the People’s Bank of Holcomb case, a 1916 deed, prior to the marriage of J. R. .and Elna Bullock, conveyed to Elna a life estate and “the remainder in fee to the “bodily heirs of said Florence Elna Bullock.” Subsequently the People’s Bank of Holcomb became the holder of a $3,000 note secured by a deed of trust on this property, the instruments being executed by J. R. Bullock, the grantor in the 1916 deed, his wife Elna and his daughter, by a prior marriage, Pearl and her husband. In 1926 the bank obtained a judgment on the note against all these parties, and, it should be carefully noted, on October 28, 1935, upon specific levy and execution "on ‘all the right, title and interest’ of the mother, Elna Bullock, only,” or, as stated at another point in the opinion, “(t)he defendant bank’s levy and execution sale under its judgment were only directed against the mother’s life estate” upon which the bank became the purchaser upon a bid of $600. Purchasing in these circumstances in 1935 the bank became the owner of Elna Bullock’s life estate and on January 2, 1936, under this title went into possession of the land. As to a part of the whole tract of land, on November 12, 1935, fourteen days after purchase at the execution sale and forty-nine days after it entered into possession of the entire 200 acres, the bank purchased 80 acres at a tax sale. In these circumstances the court said, “In other words, when the bank acquired the equitable title on November 12, 1937, two years after the sale, and when it acquired the legal title (if any) by the tax deed, on November 13, 1939, it (the bank) had long been in possession in right of Elna Bullock’s life estate.” Therefore, since the bank’s possession and its only title was that of the life estate its subsequent purchase at a tax sale “inured pro tanto to the benefit of the plaintiff as remainderman upon his making contribution within a reasonable time.” Thus in its final analysis, as is apparent from the court’s citation of the annotations “Duty of life tenant * * * to pay taxes,” 17 A.L.R. 1384, 94 A.L.R. 311, 126 A.L.R. 862, the case fell within the indicated general rule.

It is true, under the Jones-Munger Act, that the 1936 owners and occupants, Minnie and her son Lee, had two years in which to redeem the land (V.A.M.S. § 140.340) and these plaintiffs (Charles Lee was born in 1936, Nancy was only 17 when the suit was filed in 1959) in “any lands belonging to them sold for taxes,” two years after the removal of their disability had a right to redeem or to institute an action for that purpose. V.A.M.S. §§ 140.350, 140.590. Furthermore, as indicated, it was the duty of any tenants for life to pay taxes. Mathews v. O’Donnell, supra. But here the' court has found that the tax sale is valid. There was no collusion between the life tenant, Minnie, and the purchaser at the tax sale, Manion, and there was no fraud or upon this record an intentional, purposeful destruction of a contingent remainder. Ragan v. Looney, supra; Eckhardt, “The Destructibility of Contingent Remainders in Missouri,” 6 Mo.L.R. 268, 25 Mo.L.R. 392. The grandmother, Minnie, lived until 1959, the father Lee died in 1952, and there was in all the years no restitution of the $500 and-other than the formal tender of taxes now made by the plaintiffs theré -has not been in 23 years an offer or attempt to redeem. The circumstances in which the quitclaim deed was executed are not known, the grantee, Manion, and two of the grantors, Minnie and Lee, are dead. All that appears is that plaintiffs’ grandmother and father and mother one year arid twenty-two days after the tax sale, for a recited consideration of $500 conveyed to Manion. Neither their mother; guardian here of Nancy and a party to the quitclaim deed, nor anyone on behalfof the plaintiffs, until after the 1957 purchase by Lawless and after his making improvements in excess-of $14,600 made known their claims. The first notice Lawless had was a letter from plaintiff’s counsel on May 11, 1959. In 1936 the value of the land (there were then no improvements), according to the court’s finding was $4,000, $25 an acre. The land itself and its drainage have been improved, at least 30 acres of cultivatable land have been added. But in 1959 the irnprovements alone, the court found their value to be $20,000, were five times greater than the 1936 or 1937 value of the entire tract of land. If these young plaintiffs, Charles and Nancy, have been wronged, aside from their great-grandfather’s use of “the heirs of their bodies,” the initial injury was the conduct of their grandmother and their father and mother in not paying the taxes as was their duty, in not attempting to redeem the land from the 1936 sale and finally in transferring the title to Manion for $500. If there has been in these respects a default in duty -on the part of the plaintiffs’ grandmother and their mother and father there is no obviously compelling reason at this late date for penalizing Lawless whose most grievous fault has been his complete unawareness of the knowledge imparted by an abstract of title and his reliance on the opinion .of a lawyer as to the validity of his title. The sum and substance of the matter, the essence of the case, is that in the particularly detailed circumstances of this record, and in the absence of a directly controlling precedent to the contrary, it would be inequitable to permit these remaindermen solely because they are “heirs of their bodies” to now claim and assert their remainder interests and for the courts to attempt by an accounting between the parties to fairly settle and adjust their respective-rights and claims. Cockrill v. Hutchinson, 135 Mo. 67, 76, 36 S.W. 375; Souders v. Kitchens, 345 Mo. 977, 981, 137 S.W.2d 501, 504; Hunott v. Critchlow, 365 Mo. 600, 612, 285 S.W.2d 594, 602.

In this view of the case it is not necessary to consider the numerous other matters briefed .and argued, and the cause is reversed and remanded for the entry of a judgment and decr.ee conforming tq this, opinion.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM. '

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

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    James K. PENDLETON and Patricia Pendleton, Appellants, v. Gordon A. GUNDAKER, Jr., and Donna Lee Gundaker, and Robert C. Peck and Anna Peck, Respondents.
    No. 50454.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Bane Denied Sept. 14, 1964.
    James K. Pendleton, St. Louis, pro se.
    Herbert W. Ziercher, Robert C. Jones, Ziercher, Tzinberg, Human & Michen-felder, Clayton, for respondents.
   STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment of the trial court dismissing their petition, after a hearing on the merits, wherein they sought to establish an easement by an implied grant and then enjoin the defendants from interfering therewith, and to obtain damages in the amount of $2,000. This court has jurisdiction of this appeal for the reasons set forth in Pendleton v. Gundaker, Mo.App., 370 S.W.2d 720.

Lots 21 and 22 of block 43, Kenwood Homesites, St. Louis County, Missouri, adjoin each other, with lot 22 lying to the west. Each lot adjoins the south side of Daiber Avenue, a public street, but neither lot touches any other public way. For several years prior to December 31, 1959 the two lots were owned by Laura Giesel-mann. On that date lot 21 was purchased by plaintiffs, and at that time there ’was located thereon a family dwelling house with a separate building located at the rear of the lot designed and used for an automobile garage. Lot 22 was then vacant, but located thereon was an asphalt surfaced driveway approximately 9 to 11 feet in width leading from Daiber Avenue southward and then turning to the garage located on lot 21. In the deed by which plaintiffs obtained title to lot 21 there was no reference whatever to an easement for driveway purposes over lot 22. Mrs. Pendleton, a grantee in the deed and a plaintiff in this suit, testified that she was “out there two or three times” prior to the purchase and “examined the grounds,” and that at the time of the purchase she was aware of the fact that the driveway was on lot 22 because, as she said, “our dimensions were forty feet, and any body could see our driveway was not included.”

On the east side of plaintiffs’ house there is a retaining wall owned jointly by plaintiffs and the neighbors to the east with half of the wall on plaintiffs’ property. The distance between the southeast corner of plaintiffs’ house and this wall is approximately 81/2 feet. The distance between plaintiffs’ house .and .the west line of lot 21 is not shown, but from a photograph in evidence there appears to be about seven or eight feet between plaintiffs’ house and the foundation of the house constructed by defendants on lot 22.

Defendants acquired lot 22 in 1961 from Paul F. and Norma J. Conley who apparently had obtained it from Laura Giesel-mann subsequent to the time plaintiffs purchased lot 21. After the Conleys obtained the deed from Laura Gieselmann, they also obtained a warranty deed from the “trustee in bankruptcy of F. A. Sander Estate,” but the reason is not explained in the evidence. In none of these deeds was there any reservation of an easement in favor of plaintiffs. In November 1961 defendants started the construction of a house on lot 22 and removed that portion of the asphalt driveway located thereon. This suit followed immediately.

Prior to going to trial plaintiffs submitted a request pursuant to Civil Rule 59.01, V.A.M.R., for the admission of eight separate matters of fact, and they designated in the request that the admissions be made within ten days after service of the request. The answer thereto of defendants was six days late, or possibly less depending upon when service was had. Defendants admitted four of the facts submitted and stated that they had no information as to the others. On this appeal plaintiffs assert prejudicial error because the trial court did not rule that all of the submitted facts were admitted. In ruling on the appeal in this nonjury case we have assumed as true all the facts submitted, so plaintiffs are in no way prejudiced.

Plaintiffs do not seek, and in fact they admit that they are not entitled to, an easement by prescription over lot 22 for their driveway. They contend that “the admitted facts together with the uncontro-verted evidence” clearly indicate that they are entitled to “a declaration of an easement by a necessity.” They rely on the general rule set forth in their cited case of Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501, 506, as follows: “ ‘Where the owner of land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon a severance of the ownership, the holders of the two portions take them, respectively, charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted.’ * * * The benefit must be reasonably necessary to the enjoyment of the dominant estate, and apparent at the time of the severance by the original owner.” See also Foxx v. Thompson, 358 Mo. 610, 216 S.W.2d 87; Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978; Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S.W. 772, Ann.Cas.1913C, 1104, 39 L.R.A.,N.S., 549; Henderson v. La Capra, Mo.App., 307 S.W.2d 59; and the annotations in 34 A.L.R. 233; 100 A.L.R. 1321 and 164 A.L.R. 1001. The burden of establishing an easement by implied grant is on the person asserting its existence, and that proof must be by what is sometimes referred to as clear, cogent and convincing evidence. In addition, it is proper and highly desirable that “the tendency of the courts, as a general rule, is to discourage implied grants of easements, since the obvious result, especially in urban communities, is to fetter estates, retard buildings and improvements, and violate the policy of recording acts.” Missouri State Oil Co. v. Fuse, supra; Henderson v. La Capra, supra; 17A Am.Jur. Easements § 41; 28 C.J.S. Easements § 30. The creation of an easement by implied grant depends upon the intent of the parties concerned, which must clearly appear, Henderson v. La Capra, supra, 307 S.W.2d at p. 64, and which is the “cardinal consideration,” 17A Am.Jur. Easements § 41, and that intent is to be inferred from all of the circumstances under which the conveyance was made. Jack v. Hunt, 200 Or. 263, 264 P.2d 461, 265 P.2d 251; 28 C.J.S. Easements § 30.

Lots 21 and 22 are in a residential area and are designed or platted for single residential dwellings. Lot 21 is small, being only forty feet in width. The width of lot 22 is not shown, but there is an inference that it is the same as lot 21. The evidence does not reveal when the house on lot 21 was built or by whom, or whether it was built at a time when the two lots were owned by the same person. In addition, the evidence does not reveal who built the driveway or when, but we shall assume that it was constructed when lots 21 and 22 were in common ownership. Laura Giesel-mann, the common owner of the two lots at the time plaintiffs purchased lot 21, was not called as a witness by either side. Her testimony, if available, probably would have been most helpful. For aught that is shown by the evidence, Laura Gieselmann may have been an absent owner of the two lots with no personal knowledge whatever of the existence of the driveway on lot 22. Her intention at the time of the execution of the deed to plaintiffs is left to pure speculation. As to the intention of plaintiffs, the grantees, Mrs. Pendleton admitted that she knew that the lot they were purchasing was forty feet in width and that the driveway was not on their lot. In addition, it was admitted by plaintiffs that the deed to them made no reference whatever to an easement or any right in lot 22. The knowledge of the absence of any right to maintain the driveway on lot 22 is inferentially indicated by the fact that subsequently Mrs. Pendleton on three occasions called the City Clerk of the City of North-woods concerning a building permit for lot 22, because she “figured there would be a lapse of time from purchase to the issuance of the building permit” and she wanted tc> see if she could negotiate about buying the lot. Plaintiffs assert, and we shall assume, that prior to the time defendants purchased lot 22 the shrubbery located on lot 21 was arranged, apparently by them, for the use and location of the driveway on lot 22. However, from the photographs in evidence this appears to be of little or no significance.

The right to an easement by implied grant by reason of a prior use by the common owner is based on the reasonable necessity to the enjoyment of the alleged dominant estate. Missouri State Oil Co. v. Fuse, supra. This is a relative term, and other available access to the conveyed property is extremely important in the determination of such necessity. In this case access to the rear of lot 21 and the garage is available on the east side of the house over a strip approximately 8J4 feet in width. In Henderson v. La Capra, supra, the concrete driveway in issue there was only seven feet in width. Plaintiffs’ expert witness said the driveway on lot 22 was only nine feet in width, or only six inches wider than the available space on the other side of the house. Mrs. Pendleton said her automobile is six feet and nine inches in width, but the make or model is not shown. It is apparent that plaintiffs are not absolutely foreclosed from access to the rear of their lot by some motor vehicles, although they might not be able to take every make of an automobile back there. For an expression that any approach of a motor vehicle to the rear of a residence is only a matter of convenience, see Jack v. Hunt, 200 Or. 263, 264 P.2d 461, 465, 265 P.2d 251. It is true that considerable expense may be involved to- provide a new driveway in constructing a new retaining wall or repairing the one that is there. It may be that some form of a fence would be required, and there is no question but that this access would be less convenient than the driveway over lot 22. However, these are not determining factors. Henderson v. La Capra, supra.

In attempting to determine the “presumed intention” of the parties based on what was done at the time of the conveyance of lot 21 to plaintiffs we are handicapped by a lack of evidence as to some of the essential circumstances. However, it is proper to consider, among other things, the size of the lots, the fact that they are in a residential area, the effect of the claimed easement on the availability of lot 22 for its apparent intended use after lot 21 had been conveyed away, the reasonable necessity for the claimed easement for the enjoyment of lot 21 as affected by other possible access to the rear of lot 21, the knowledge on the part of paintiffs that the driveway was not on the lot described in the deed to them and that there was no mention in their deed to any right in lot 22, and that plaintiffs do not assert that the right to maintain a driveway on lot 22 constituted any part of the consideration of the purchase of lot 21. See Jack v. Hunt, supra.

When we take into consideration all of the above facts and circumstances, and particularly that access to the rear of lot 21 is not entirely impossible over plaintiffs’ land, that plaintiffs have the burden of proof by clear and convincing evidence but there is a lack of evidence as to several essential matters, and the highly desirable tendency of the courts to discourage implied grants of easements for the reasons previously stated, we necessarily conclude that plaintiffs have not met their required burden of proof, and that the trial court correctly dismissed their petition.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    The STATE of Missouri, at the relation of Clarence A. POWELL, Appellant-Respondent, v. John M. CAPPS, President and Member of the Board of Supervisors of the Mingo Drainage District, a Public Corporation, H. C. Cookson, William Lewis and A. J. Johnston, Members of the Board of Supervisors of the Mingo Drainage District, a Public Corporation, and T. D. Shoemate, Secretary of the Board of Supervisors of the Mingo Drainage District, a Public Corporation, Respondents-Appeilants.
    No. 50498.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.
    Motion for Rehearing and to Transfer to Court En Banc Denied Sept. 14, 1964. Sept. 14, 1964.

      C. A. Powell, Powell, Jones & Ringer, Dexter, for relator-appellant.
    Briney & Welborn, Joe Welborn, James E. Spain, Elvis A. Mooney, Claude Arnold, Dexter, James L. Hawkins, St. Louis, for respondents-appellants, John M. Capps, ct al.
   STOCKARD, Commissioner.

This is an appeal in a proceeding for mandamus whereby relator seeks to require the last board of supervisors of Mingo Drainage District (hereafter referred to as “Mingo” or the “district”) to levy a tax to obtain funds with which to pay certain portions of a judgment obtained by him against the district.

Mingo was organized on April 22, 1915, for a period of fifty years, pursuant to Chap. 41, Art. I, RSMo 1909. (Subsequent references to the above statutes will be to the corresponding section in Chapter 242 RSMo 1959, V.A.M.S.) The area of Mingo, after one extension of its original boundaries, contained approximately 33,786 acres of land in Wayne and Stoddard Counties. Benefits from the proposed drainage project were assessed against the lands and property in the district totaling $1,025,703.80. Thereafter, pursuant to Section 242.450 the board of supervisors of Mingo levied taxes against the various tracts of land in the district in proportion to the assessed benefits to pay the costs of the completion of the proposed works and improvements, and said taxes were equal to the total of the assessed benefits. Since bonds were to be issued, the amount of the interest, as estimated by the board of supervisors, which would accrue on such bonds prior to maturity was added to the tax levied on each tract of land. This levy was properly entered on the prescribed tax books and made of record. During the years 1917 to 1922 Mingo issued bonds, including the bonds in the principal amount of $117,900 which are now owned by relator Clarence A. Powell, which were all registered by the Auditor of the State of Missouri and sold by Mingo to obtain funds to pay for the construction of the drainage project. None of the bonds matured within five years from the date of issue but all matured within 20 years after issue, the latest maturity date being in 1941. Attached to each bond were 6% interest coupons, payable semi-annually until maturity of the bond to which attached. Each year up to and including 1940, as authorized by Section 242.460, the board of supervisors levied an annual installment of the total taxes (previously levied pursuant to Section 242.450) which it determined to be sufficient to pay the bonds and coupons which would become due the following year. Annual tax books were prepared by the secretary of the board of supervisors of Mingo, but in 1940 and for several years prior thereto these books were not delivered to the county tax collector in Wayne County and the township tax collectors in Stoddard County, as required by Section 242.540, apparently because the taxes were not being paid by the landowners in the district and the collectors refused to make the bond required by the above statute. It is evident that almost from the first Mingo began defaulting on payments of the coupons and bonds when they became due. From the time of its organization until and including 1940, the last year an annual installment tax levy was made, many of the taxes that had been annually levied were not paid. For the years 1928 and 1940 (and apparently thereafter) no tax suits were brought by or on behalf of Mingo to collect delinquent drainage taxes, and no payment has been made on any bond or coupon since about 1926. There is no contention that the taxes, if collected, would not have been sufficient to pay all the bonds and coupons when due. The collection of all taxes previously levied by Mingo is now and for many years has been barred by Section 140.160.

In 1941 and 1943 Clifton A. Luther, as owner of matured bonds issued and sold by Mingo and upon which Mingo had defaulted in payment of principal and at least some of the coupons, brought suit and obtained judgments against Mingo totaling $227,251.-25. The principal amount of the bonds sued on was $117,900; the total amount of the coupons sued on was $42,120; and the total interest on the bonds and coupons after maturity included in the two judgments was $67,285.25. (The difference of $54.00 between the total of the two judgments and the total amount of the bonds, coupons and interest is not explained).

On May 31, 1943 Clifton A. Luther assigned the above two judgments to E. E. Calbreath and Mae Calbreath who in 1951 brought suit on the said judgments in the Circuit Court of Stoddard County and obtained a judgment against Mingo in the amount of $367,907.96. On July 7, 1962, E. E. Calbreath (Mae Calbreath then being deceased) assigned the above judgment to relator for the consideration of $6,000. On July 23, 1962, relator filed suit against Min-go on the assigned judgment, and on October 1, 1962, he obtained a judgment against Mingo in the amount of $591,105.56, which bears interest at the rate of 6% per annum. This judgment included the principal of the bonds in the amount of $117,900 and interest (including the coupons) in the amount of $473,205.56.

In 1945 the United States acquired title to approximately 22,000 acres of the land located within the boundaries of Mingo, which was about two-thirds of the area, for use as a game refuge. When Mingo was organized, and the benefits of the drainage project were assessed against the various tracts of land located therein, 79.87% of the total benefits were assessed against land which was subsequently acquired by the United States, and 20.13% of the total benefits were assessed against the land remaining in the district and not now owned by the United States.

Mingo has no funds on hand with which to make any payments on the principal of the bonds, the coupons, or the accrued interest. On April 23, 1963 relator filed his petition for a writ of mandamus seeking to compel those persons whom he contends constitute the last board of supervisors of Mingo to levy a tax on all lands and property in the district, not now owned by the United States, in proportion to the benefits assessed and in an amount sufficient to pay $473,205.56, the amount which relator asserts constitutes interest included in the judgment he obtained on October 1, 1962, plus interest at 6% from October 1, 1962, on $591,105.56, the total amount of the judgment. An alternative writ granting the relief requested was issued by the Circuit Court of Stoddard County on June 20, 1963. After a hearing, and on October 26, 1963, the court issued its peremptory writ of mandamus requiring those found to constitute the last members of the board of supervisors of Mingo to levy a tax on the lands and property in the district, not owned by the United States, in proportion to assessed benefits, and in an amount (1) sufficient to pay to relator the sum of $95,256.28 which is 20.13% of $473,205.56, and (2) sufficient to pay to relator 20.13% of the sum representing 6% interest per annum on $591,105.-56 from and after October 1, 1962. All parties have appealed. Relator contends that the trial court should have required the levy of a tax sufficient to pay the amounts requested in his petition. The individuals and Mingo, whom we shall hereafter designate as defendants, contend that no levy of a tax should be required.

Chapter 242 RSMo 1959, V.A.M.S., is a code unto itself, and “It fixes the rights and liabilities of all with respect to matters involved. * * * It grants and withholds power and authority, accordingly as it may be provided therein.” State ex rel. Walker v. Locust Creek Drainage District, 228 Mo.App. 434, 67 S.W.2d 840, 847; Dalton v. Fabius River Drainage Dist., 238 Mo.App. 665, 184 S.W.2d 776, 784. The causes of action on the bonds, on the coupons, for interest on the bonds and coupons which accrued after maturity, and for interest on the Luther and Calbreath judgments, are all merged in the judgment obtained by relator on October 1, 1962. State ex rel. Emerson v. City of Mound City, 335 Mo. 702, 73 S.W.2d 1017, 94 A.L.R. 923. However, while the judgment obtained by relator against Mingo is conclusive as to all matters of defense, if any, which could have been made against relator’s claim, it “does not preclude respondents [those whom we designate as defendants herein] from asserting in this mandamus proceeding the absence of authority on their part to levy the additional tax sought by [relator] to pay the claim. The suit wherein the judgment was obtained by [relator] undoubtedly determined finally [his] right to a judgment * * *, but such judgment, unquestioned and valid though it be, cannot supply authority to a creature of statute such as [Mingo] * * * drainage district to levy taxes if such authority is not expressly granted by the statutes to which it must look for its power and authority to levy such taxes.” Bushnell v. Mississippi & Fox River Drainage District, 233 Mo.App. 931, 111 S.W.2d 946, 949. See also State ex rel. Jacoby v. Missouri Valley Drainage Dist. of Holt County, 353 Mo. 1005, 185 S.W.2d 800, 802. In the Bushnell case it was further pointed out that if the drainage district had any property subject to execution, the judgment holder would undoubtedly have the right to have execution levied on such property to satisfy his judgment, but if he wants “the high governmental power to tax the lands of property owners in the district exercised in [his] favor to pay the judgment, [he] must show that the law authorizes such tax to be levied and that [he occupies] a status under the law entitling [him] to have the power exercised for that purpose.”

Relator admits in his brief that in view of the fact that the taxes previously levied for the payment of the bonds issued by Mingo were equal to the total of the benefits assessed against the lands and property in the district-“no tax can now be levied by Mingo to pay the $117,900, the principal amount of the bonds, included in relator’s judgment.” He .asserts, however, that the board of supervisors is granted authority to levy a tax to obtain funds to pay “the amount of the interest coupons and other interest included in his judgment,” and that a tax should be levied against the land in Mingo not owned by the United States to obtain sufficient funds to pay the entire amount of his judgment less $117,900, and not only 20.13% thereof as directed by the trial court.

When we analyze the basis for .relator’s, judgment of October 1, 1962, we find that he is seeking to have taxes levied to obtain funds to pay those portions of his judgment (1) based on the coupons (which is interest on the bonds'prior to maturity), and (2) based on interest on the bonds and the coupons which accrued after their maturity. In addition, he seeks to have taxes levied to obtain funds to pay that part of the judgment which in fact is interest on interest (because when the Luther and Calbreath judgments were obtained the then accrued interest was included in the principal of the judgments and the judgments bore interest at six per cent), and also to pay interest on relator’s judgment (which also includes interest on interest).

We find no statutory authority, and relator refers us to none, for a drainage district to levy a tax to obtain funds to pay interest on a judgment or that portion of relator’s judgment of October 11, 1962 which is in fact based on interest on interest. In determining whether the board of supervisors of Mingo now has authority to levy a tax to obtain funds to pay that portion of relator’s judgment based on interest on the bonds which accrued before maturity, that is, the coupons, and interest on the bonds and coupons which accrued after maturity, it will be Helpful to include as a part of that determination a review of the statutory provisions (other than those authorizing the levy of a tax for organization and maintenance expense) for financing a drainage district such as Mingo.

Section 242.450 authorizes the levy of a tax “of such portion of said benefits” on the lands and property in the district as may be found necessary by the board of supervisors to pay the costs of completion of the proposed plan for reclamation. This tax is “apportioned to and levied on each tract of land or other property in said district in proportion to the benefits assessed and not in excess thereof.” In the event the “amount of total tax levied under the provisions of section 242.450” is insufficient to pay the cost of the improvements in the plan for reclamation, and amendments thereto, the board of supervisors may make an “additional levy to provide funds to complete the work; provided, the total of all levies of such tax does not exceed the total amount of benefits assessed.” Section 242.470. It is from the proceeds of this tax that the cost of the improvements called for in the plan for reclamation is to be paid (if the tax is paid in one installment as hereafter noted) or the principal of bonds is to be paid (if bonds are issued as hereafter noted). Par. 2, Section 242.480. When bonds are issued and sold to obtain funds to pay the cost of the drainage works and improvements (par. 9, Section 242.480) they are “to mature at annual intervals within twenty years, commencing after a period of years not later than five years,” and shall bear interest from date of issue “at a rate not to exceed six per cent per annum, payable semiannually.” Par. 1, Section 242.480. In such event there shall then “be included and added to the said tax” the amount of the interest, as estimated by the board of supervisors, which will accrue on such bonds. Section 242.450. This necessarily refers only to the interest on the bonds from issue to maturity, as represented by the coupons attached thereto, because that is the only interest to accrue on the bonds which at that time could be estimated. While the amount of the levy to pay the cost of the improvements, or to pay the principal of the bonds when bonds are issued, may not exceed the amount of the assessed benefits (Sections 242.450 and 242.470), “the interest to accrue on account of the issuing of said bonds shall not be construed as a part of the costs of construction in determining whether or not the expenses and costs of making said improvements are or are not equal to or in excess of the benefits assessed.” Section 242.450. The total tax thus determined shall, after the necessary recording and filing, constitute a lien on each tract of land and other property in the district. Section 242.590. This tax may be paid at one time if payment is made before a date fixed by the board of supervisors, and in that event the amount added to the tax for interest on the bonds accruing prior to maturity need not be paid. Section 242.57$. If the tax is not paid in one sum, then the board of supervisors shall “each year thereafter determine, order and levy the amount of the annual installment of the total taxes levied under section 242.450” (and presumably also under Section 242.470, but it is not specifically so stated) which installment shall become due and be collected each year. Section 242.460. In making this “annual tax levy” the board of supervisors is to take into account the “maturing bonds and interest on all bonds,” and make “ample provisions in advance for the payment thereof.” In addition, in the event “the proceeds of the original tax levy made under the provisions of section 242.450 are not sufficient to pay the principal and interest of all bonds issued, then the board of supervisors shall make such additional levy or levies upon benefits assessed as are necessary for this purpose, * * *.” Par. 4, Section 242.480.

The above are all the statutory provisions pertaining to the authority of the board of supervisors of Mingo to levy a tax to obtain funds to pay the principal of the bonds or the coupons. These provisions do not pertain to the right of the hoard of supervisors to levy a tax to obtain funds to pay interest on bonds or coupons after maturity. It is provided in par. 3, Section 242.480 that bonds and coupons not paid at maturity shall bear interest at 6% per annum until paid, and that the “interest shall be appropriated by the board of supervisors out of the penalties and interest collected on delinquent taxes or any other available funds of the district.” While this provision designates the source of funds from which payment of interest accruing on the bonds and coupons after their maturity may be made, it does not grant any authority to levy a tax to obtain funds for that purpose.

Relator relies primarily on the provision in par. 4, Section 242.480, quoted above, which authorizes an “additional levy or levies upon benefits assessed” to pay the “principal and interest of all bonds issued.” He asserts that this provides the necessary statutory authority for the board of supervisors to levy a tax at this time to obtain funds to pay that portion of his judgment which he contends represents interest and to pay accrued interest on his judgment. He does not distinguish between interest on the bonds before maturity represented by the coupons, and interest on the bonds and coupons which accrued after maturity. Neither does he distinguish between the above interest and interest on his judgment and the portion of the judgment based on interest on interest. His argument, as we understand it, is that (1) the interest estimated by the board of supervisors (the amount of the coupons) added to the tax levied pursuant to Section 242.450 in the early stages of the organization of the district is not to be considered in determining whether the cost of improvements is in excess of the assessed benefits; (2) there is no requirement that “the coupons issued by a drainage district must be paid out of the estimated tax levied under Section 242.450;” (3) money obtained by taxation constitutes “available funds” referred to in par. 3, Section 242.480 (which pertains only to payment of interest on bonds and coupons after maturity); and (4) in conclusion, while “the additional taxes cannot be levied to pay the principal of bonds in excess of the assessed benefits, * * * there is no such restriction as to the payment of interest, and therefore, the board should yet, under Section 242.480(4) make an additional levy to pay the interest included in relator’s judgment.”

We agree with the first two contentions of relator as above stated, and for the purposes of this opinion we shall assume.the correctness of the third contention. However, we cannot agree with the fourth. Relator ignores the fact that by par. 4, Section 242.480, wherein the board of supervisors is authorized to make “such additional levy or levies” as are necessary to pay the principal and interest of all bonds issued, the authority there granted to obtain funds to pay principal or interest is limited to make such additional levy or levies “upon benefits assessed,” and that this court en banc has said that the term “upon benefits” means “within” the total of the assessed benefits. See State ex rel. Sturdivant Bank v. Little River Drainage Dist., 334 Mo. 753, 68 S.W.2d 671, 675. We add here that it is our opinion that the authority contained in par. 4, Section 242.-480 to make an additional levy to obtain funds to pay interest is limited to the payment of the coupons, and does not include the interest accruing on bonds and coupons after maturity. However, in view of our conclusion subsequently set forth, that under the particular facts of this case this statute does not authorize the levy of a tax at this time to obtain funds to pay any interest, this is immaterial in this case.

Relator admits that the language in par. 4, Section 242.480 does not authorize a levy to obtain funds to pay the principal of the bonds because the amount of previous levies is equal to the amount of the benefits assessed, and we agree. But, the limitation therein contained as to the authority to levy taxes to obtain funds to pay the bonds applies equally to the authority to levy a tax to pay interest. Par. 4, Section 242.480 is a taxing statute, and it has long been the rule, and properly so, that a taxing statute “must be strictly construed and, if the right to tax is not plainly conferred by statute, it will not be extended by implication.” Osterloh’s Estate v. Carpenter, Mo., 337 S.W.2d 942; A. P. Green Fire Brick Co. v. Missouri State Tax Commission, Mo., 277 S.W.2d 544; State ex rel. and to Use of Benson v. Union Elec. Co. of Mo., 359 Mo. 35, 220 S.W.2d 1. The board of supervisors is granted authority to “make such additional levy or levies” for the purpose of obtaining funds “to pay the principal and interest of all bonds issued” only when such levy or levies can be made “upon benefits assessed” which means “within” the total of the benefits assessed, and it is admitted that the total of the previous levies now makes that impossible. It is true that in making the original levies at the time of the organization of Mingo, the statute which authorized the levy of a tax at that time to obtain funds to pay the coupons does not contain the limitation in par. 4, Section 242.480. But these are two different taxes authorized by different statutory provisions to be made at different times, and we cannot by implication read into one statute an exception contained in the other which is contrary to the plain, concise and unequivocal language used.

We are not concerned with why the Legislature limited the authority in par. 4, Section 242.480 to make an additional levy in the manner it did when it did not in the same manner or to the same extent limit the authority granted by Section 242.450 to levy a tax to obtain funds to pay the coupons. We are concerned only with the fact that it did do so, and we conclude that under the facts of this case par. 4, Section 242.480 does not grant authority to make an additional levy to obtain funds to pay any interest for the same reason it fails to grant authority to make an additional levy to obtain funds to pay the principal of the bonds. However, there can be factual situations where the limitation imposed would not bar such a levy. For such a factual situation where an additional levy pursuant to this statutory authority was ordered to obtain funds to pay the principal and interest on drainage district bonds, see Diekroeger v. Jones, 235 Mo.App. 1117, 151 S.W.2d 691.

Par. 4, Section 242.480 is the only statute granting authority to the board of supervisors of Mingo to levy a tax which relator contends constitutes authority to levy a tax to obtain funds to pay that part of his judgment- which he asserts is based on interest, and to obtain funds to pay interest on his judgment. However, it is our conclusion after a careful and thorough examination of its wording, its relation to the other provisions of Chapter 242, and its part in the overall plan for financing a drainage district such as Mingo, that it does not grant authority to the board of supervisors of Mingo, under the facts of this case, to levy a tax at this time to obtain funds to pay any interest, whether it is interest on the bonds before maturity (that is, the coupons), interest on the bonds and coupons after their maturity, or interest on relator’s judgment. For the above reasons the judgment of the trial court in issuing its peremptory writ of mandamus was erroneous.

The above conclusion makes it unnecessary to rule on other contentions urged in the briefs.

The judgment is reversed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Evelyn R. JONES and Melanie C. Jones, a Minor, By and Through Evelyn R. Jones, Appellants, v. JOY MANUFACTURING COMPANY, a Corporation, Respondent, and Frances M. Jones and W. Marshall Jones, Involuntary Plaintiffs.
    No. 50314.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 14, 1964.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Martin Schiff, Jr., St. Louis, for appellants.
    William M. Van Cleve, Walter E. Diggs,, Jr., St. Louis, Bryan, Cave, McPheeters &. McRoberts, St. Louis, of .Counsel,, for defendant-respondent.
   HOUSER, Commissioner.

Evelyn R. Jones and her minor daughter Melanie appeal from an order of the circuit court dismissing their second amended' petition on motion of defendant Joy Manufacturing Company to dismiss for failure to-síate a claim upon which relief can be granted, and lack of legal capacity to sue.

Caption and signature omitted, the second' amended petition follows:

“1. Defendant is a Pennsylvania corporation, duly qualified and doing business in the State of Missouri, and having the CT Corporation System, 314 North Broadway, St. Louis 2, Missouri, as its duly designated', registered agent in Missouri.

“2. Plaintiff Evelyn R. Jones is the-widow and an heir of Walter M. Jones, deceased, born October 29, 1899, who died on-December 4, 1961, and who prior to his death was employed as district manager of defendant’s -Coal Machinery Division in St. Louis, Missouri. Said plaintiff is also the duly appointed Executrix of the Estate of Walter M. Jones, deceased, currently under administration.

“3. Plaintiff Melanie C. Jones is a minor under the age of fourteen years, and is the natural daughter of Evelyn R. Jones, plaintiff herein, and Walter M. Jones, now deceased, and resides with her said mother in St. Louis County, Missouri.

“4. At the time of the death of said Walter M. Jones, he also left surviving him two children by a prior marriage, namely Frances M. Jones and W. Marshall Jones, step-children to Evelyn R. Jones, plaintiff herein, both of whom have achieved their majority, and who are non-residents of Missouri and not amenable to service of process in this state in the customary manner provided by law.

“a. Said children, Frances M. Jones and W. Marshall Jones, together with plaintiffs, Evelyn R. Jones and Melanie C. Jones, constitute all the heirs of said Walter M. Jones, as determined at the time of his death under the applicable laws of intestacy.

“b. Said children, Frances M. Jones and W. Marshall Jones, have refused to join as plaintiffs herein, or their consent to join as plaintiffs cannot be obtained, and they are joined as parties herein in the capacity of involuntary plaintiffs.

“5. On or about May 28, 1959, defendant and the said Walter M. Jones entered into a written contract and agreement of employment, a copy of which is attached to this second amended petition and by this reference incorporated herein, whereby defendant agreed to pay to Walter M. Jones the sum of Fifteen Hundred Dollars ($1,-500.00) per month until October 1st following Jones’ 65th birthday, together with bonuses, in return for Jones’ remaining in the employment of defendant and devoting his energies to performing the duties of district manager as aforesaid.

“6. Walter M. Jones fully performed all of the duties and obligations required of him under the terms of the aforesaid written agreement, up to the time of his death.

“7. The aforesaid employment contract, the written terms of which were selected and drafted by defendant corporation, provided that it was to continue in full force and effect until October 1, 1965, unless earlier terminated in the manner specified in particularity by the terms of the contract, and specifically paragraph 4 thereof.

’ “8. The said employment contract, which has never been terminated in the manner specified by its terms, and which was in full force and effect at the time of the death of Walter M. Jones, further provided that its terms were binding upon and enured to the benefit of each party’s heirs or successors.

“9. Upon the death of Walter M. Jones plaintiffs made demand upon defendant for payment of the sum of Fifteen Hundred Dollars ($1,500.00) per month, pursuant to the terms of the written contract aforesaid, which payments or any part thereof defendant has totally failed.and refused to make or tender.

“WHEREFORE, plaintiff Evelyn R. Jones prays that the court appoint her as next friend for her daughter, Melanie C. Jones, and plaintiffs pray for judgment against defendant in the amount of Fifteen Hundred Dollars ($1,500.00) per month, commencing December 1, 1961, and continuing up to date of any judgment herein, or until October 1, 1965, whichever date first occurs, together with costs.”

Signatures omitted, the contract follows:

“THIS AGREEMENT

“Made and entered into the 28th day of May, 1959.

“BY AND BETWEEN

“JOY MANUFACTURING COMPANY, a Pennsylvania corporation, having its principál offices in the City of Pittsburgh, Pennsylvania, hereinafter referred to as ‘Joy.’

“AND

“WALTER M. JONES, a resident of St. Louis, Missouri, hereinafter referred to as ‘Jones,’

“WITNESSETH:

“WHEREAS, Jones has been in the employ of Joy for over thirty-five (35) years in various capacities and presently is in its employ in the capacity of District Manager of the Coal Machinery Division in St. Louis, Missouri; and

“WHEREAS, Joy and Jones are desirous of continuing said employment on such terms and conditions as are mutually satisfactory thereto;

“NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and intending to be legally bound hereby, Joy and Jones covenant and agree as follows:

“1. Joy hereby agrees to continue the employment of Jones in the position of District Manager of its Coal Machinery Division in St. Louis, Missouri, during the term and subject to the provisions of this Agreement.

"Jones hereby agrees to accept such position, to perform all duties consistent therewith and such other duties as may from time to time be assigned to him by Joy, and to devote his full time, energy and efforts to the performance of said duties.

“2. Joy agrees to pay Jones as compensation for his services hereunder a salary of Fifteen Hundred Dollars ($1500.00) per month, plus the District Office Sales Bonus.

“3. Unless earlier terminated as hereinafter provided, this Agreement shall continue in full force and effect until the October 1 concurring with or next succeeding Jones’ sixty-fifth (65th) birthday.

“4. ’ In the event either party hereto shall fail to perform or fulfill, in the manner and at the time herein provided, any obligation or condition herein required to be performed or fulfilled by such party, and if such default shall not be remedied promptly after receipt of written notice thereof from the non-defaulting party, the non-defaulting party shall have the right to terminate this Agreement by written notice of such termination at any time within thirty (30) days thereafter. Any termination of this Agreement, pursuant to this provision, shall be in addition to, and shall not be exclusive Of or prejudicial to, any other rights or remedies the non-defaulting party may have on account of the default of the other party.

“5. This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania.

“6. This Agreement shall be binding upon and enure to the benefit of the parties hereto, their heirs and/or successors.”

We have jurisdiction because the amount in controversy is in excess of $15,000.

Appellants claim that the court erred in dismissing the petition; that the petition states a cause of action for breach of a contractual duty defendant owed plaintiffs; that plaintiffs were entitled to enforce the contract as third-party beneficiaries by virtue of par. 6.

Recognizing the general rule that contracts calling for the rendition of distinctive personal services are discharged and terminated by operation of law upon the death of the party agreeing to render the services, Jarrell v. Farris, 6 Mo. 159; McDaniel v. Rose, Mo.App., 153 S.W.2d 828; In re Stormer’s Estate, 385 Pa. 382, 123 A.2d 627; Restatement, Contracts, § 459, l. c. 855; 17A C.J.S. Contracts § 465, appellants urge that the general rule has no application in a case where by the language they use the parties to a contract manifest a different intention. Appellants maintain that paragraphs 4 and 6 of this contract manifest a different intention in that par. 4 specifies a particular manner by which the contract may be terminated, and par. 6 designates third-party beneficiaries to the contract in the event of the death of one of the parties thereto. Appellants then argue that par. 6 must have been intended to have some meaning, or else it would not have been included, but that par. 6 is of doubtful meaning and is ambiguous; that any doubt or ambiguity must be construed against the party who wrote the contract (admittedly respondent) ; that the meaning of the contract is to be decided by the jury, Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672, 676, and that it was error for the court to hold as a matter of law that the contract terminated at the death of Jones; that that determination should be made by the jury after hearing evidence of the facts and circumstances surrounding the execution of the contract, citing Pritchard v. Wick, 406 Pa. 598, 178 A.2d 725; Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527.

Appellants’ claim that the contract is still in force, under the provisions of par. 3, because it was not terminated in the manner provided in par. 4, must be disallowed. The provision of par. 4 for termination for nonperformance does not foreclose or exclude the possibility of termination by death. The possibility of termination of a contract for distinctive personal services by the death of the party to render the services must be regarded as an inescapable concomitant of every such contract

We find no basis for referring this case to the jury on the ground of an alleged ambiguity in par. 6. That paragraph is not ambiguous in the sense that its meaning is doubtful or uncertain or that it is equivocal i. e., capable of being understood in either of two or more possible senses. While the language customarily used is “heirs, executors, administrators and assigns” (not alone “heirs”), the employment of such a provision in a contract not calling for the rendition of distinctive personal services would not be unusual and its meaning would be clear enough. In a contract obligating a party to render unique personal services, however, at least insofar as the heirs, etc. are concerned, its inclusion is inappropriate. The scrivener included par. 6 in a contract for personal services by misappropriation or inadvertence. Obviously a contract for the rendition by Mr. Jones of unique personal acts, which only he could render, could not be binding upon his heirs so as to obligate them to perform these services. Nor can the provision that the contract enure to the benefit of the heirs be reasonably construed as a third-party beneficiary contract raising an obligation on Joy’s part to pay the heirs the monthly stipends reserved for Mr. Jones, in the absence of a clear and unmistakable provision for the survival of the obligation in their favor after the death of Mr. Jones. While it would be competent for parties in this factual situation to contract for the payment to third-party beneficiaries of a sum certain for a time certain after the death of the party whose services were bargained for, the provision of par. 6 that the contract shall enure to the benefit of the heirs falls short of accomplishing this. Neither from a reading of par. 6 nor from a consideration of the contract as a whole do we find any expression of an intention, either expressly or by necessary implication, that Joy’s obligation survive and continue in effect in favor of his heirs after Mr. Jones’ death. On the contrary, a fair reading of the contract leads to the conclusion that it was the intention of these contracting parties that Joy’s obligation to pay depend upon the continuance of the life of Mr. Jones and the continued performance by him of the services which form the basis and raison d’etre of the contract.

Nor do we find in par. 6 two possible alternative meanings which might have application to this factual situation, one of which could be revealed by evidence as the alternative intended, whereby we might rule par. 6 ambiguous.

The court did not err in failing to refer the case to a jury for a determination of the meaning of par. 6.

We conclude that this is not a third-party beneficiary contract; that this contract falls within the general rule; that in this contract, which called for the performance of highly individualized personal services, there was an implied condition to the obligation to pay $1,500 monthly salary and a bonus that Mr. Jones be alive and capable of performing the contract, and that his death terminated and discharged Joy Manufacturing Company’s obligation to make monthly payments of salary and bonus into' the future and until the October 1 next sue-ceeding Mr. Jones’ 65th birthday; that the second amended petition does not state a claim upon which relief may be granted and .was properly dismissed.

The judgment is affirmed.

WELBORN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    In the Matter of the ESTATE of Jacob SCHELL, Deceased. Mary E. SCHELL, Appellant, v. Hugh SCHELL, Administrator, Respondent.
    No. 50438.
    Supreme Court of Missouri, Division No. 1.
    Sept. 14, 1964.
    James L. Paul, Pineville, for appellant.
    Robert E. Yocom, Pineville, for respondent.
   HIGGINS, Commissioner.

This action originated in the Probate Court of McDonald County. That court entered an order favorable to Mary E. Schell and an appeal was taken to the Circuit Court of McDonald County where the case was tried de novo. Section 472.250, RSMo 1959, V.A.M.S. The trial judge denied relief to Mary E. Schell and now she has appealed.

Appeal was first taken to the Springfield Court of Appeals, which court transferred the case to the Supreme Court. In re Schell’s Estate, Mo.App., 370 S.W.2d 816.

The pertinent portions of appellant’s pleading, styled “EXCEPTION TO INVENTORY & APPRAISEMENT,” follow:

“Comes now Mary E. Schell * * * and files herein exceptions to the Inventory and Appraisement filed in the above estate for the reason that said Inventory shows no real estate.

“Your applicant further represents and shows to the court that said decedent died on the 7th day of April, 1958 and that at the time of his death, a certain warranty deed executed prior to the decedent’s marriage with your applicant was being held by the Bank of Pea Ridge, Pea Ridge, Arkansas, conditionally and not absolutely and that after decedent’s death, said deed was procured by the grantees named therein and caused to be placed of record in McDonald County, Missouri on the 11 day of April, 1958.

“Your applicant further represents and shows to the court that by reason thereof title to said real estate was vested in the decedent at the time of his death and that said warranty deed, if effective at all, was merely a testamentary deed and by reason thereof, your applicant is entitled to a widow’s share of said real estate.

“WHEREFORE, your applicant prays that this matter be set down for hearing and that the court make further inquiry and if the allegations contained in this exception be sustained, that the court award your applicant such money as she may be entitled to by reason of being widow of the deceased and establish the same as a lien against said real estate.”

The facts of this case are brief and not in great dispute. Appellant, Mary E. Schell, is the widow of Jacob Schell, deceased. Mary and Jacob, both of -advanced years, were married April 21, 1953, and lived together as husband and wife, occupying the real estate in question, until Jacob’s death April 7, 1958. Prior to his marriage with Mary, Jacob Schell, on February 17, 1953, executed two warranty deeds purporting to convey said real estate and naming as grantees thereof his three adult children by a previous marriage, Hugh Schell, the respondent administrator, Clifford Schell, and Jewell Robbins. These deeds were recorded April 11, 1958, four days after Jacob’s death. According to witness Cecil Calvin Beaver, a brother-in-law of said Hugh Schell, these deeds were in possession of Hugh Schell in May of 1955. Tax receipts for the years 1953 through 1958 for taxes on this land were issued in the name of Jacob Schell. There was an envelope in the Bank of Pea Ridge, Arkansas, marked “Property of Jacob Schell.” Its contents were not known but it was thought to have contained an abstract of title. Jacob was an old age assistance beneficiary and, according to his welfare case record, claimed ownership of the lands and had an allowance for taxes thereon during all the time in question.

It is our view that this case does not involve title to real estate-within the meaning of Article V, Section 3, Constitution of Missouri, V.A.M.S., and that the case was, therefore, improperly transferred here by the Springfield Court of Appeals. In Nettleton Bank v. McGaughey’s Estate, 318 Mo. 948, 2 S.W.2d 771, 774 [7], we said for this court to have jurisdiction: “Title must not only be in issue; it must be in issue directly, as distinguished from collaterally or incidentally.” We went on to say at l. c. 774 [8] : “The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and giv.e it to another.” See also Missouri Digest, Courts. <§=231(25).

Appellant’s prayer in this case is that the probate court give her a money judgment and establish such judgment as a lien against the real estate mentioned in her petition. It has been settled that establishing a lien on real estate does not involve title to real estate in the constitutional sense. Nettleton Bank v. McGaughey’s Estate, supra, l. c. 774 [7].

The court has held in the Nettleton case .that the probate court has no jurisdiction to decide title controversies. Certainly this case does not seek to take title from one .litigant and give it to the other, which would be an issue for the circuit court.

The court of appeals in transferring the .case here, 370 S.W.2d 816, 819 [11], only said that its jurisdiction was doubtful and transferred the case for our determination.

Accordingly, we hold that title to real estate is not involved and jurisdiction is in the Springfield Court of Appeals.

The cause is remanded to the Springfield Court of Appeals.

HOUSER and WELBORN, C.C., concur.

PER CURIAM:

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

All concur.


author: HYDE, Judge. PRITCHARD, Commissioner

text:
    Harrietta Ellen WEAVER, a Minor, by Shirley L. Weaver, Her Mother and Next Friend, Plaintiff-Appellant, v. ARTHUR A. SCHNEIDER REALTY COMPANY, a Corporation, Defendant-Respondent.
    No. 50086.
    Supreme Court of Missouri, En Banc.
    July 13, 1964.
    Rehearing Denied Sept. 14, 1964.
    Hubert I. Binowitz, Hoffman & Bino-witz, St. Louis, for plaintiff-appellant.
    Burton H. Shostak, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   HYDE, Judge.

Action for $18,500.00 damages for personal injuries. The court dismissed for failure of plaintiff’s petition to state facts entitling plaintiff to any relief and plaintiff has appealed.

Plaintiff’s petition alleged that she resided in a multiple dwelling house, in St. Louis, with her family who were tenants of defendant. Allegations of the petition as to facts, negligence and injury were as follows:

“That on or about the 31st day of July, 1962, plaintiff was approximately sixteen months of age and was situated in the common hallway located in the abovementioned premises at which time plaintiff consumed pieces of plaster which had been allowed to fall from the ceiling and wall of said common hallway and plaintiff, as the direct result of the negligence and carelessness of defendant in the maintenance of said common hallway, sustained serious and permanent injuries.

“That the aforesaid common hallway, and at the point where said plaster had fallen, was in a dangerous and unsafe condition as a result of said fallen plaster, the walls and ceilings thereof being in a rotted and decayed condition; that said condition had existed for a sufficient length of time and defendant knew or by the exercise of ordinary care should have known that said condition was dangerous and unsafe for persons in the area and more particularly those of tender years such as plaintiff, as said pieces of fallen plaster were poisonous to the human system and would likely have been consumed by such persons.

“That plaintiff’s injuries and damages were the direct and proximate result of the negligence and carelessness of defendant in the following particulars:

“A) Defendant negligently and carelessly maintained said common hallway and the walls and ceilings thereof in a rotted and decayed condition so as to allow pieces of plaster to fall therefrom to the floor and created said dangerous condition.

“B) Defendant negligently and carelessly failed and omitted to remove from said hallway said fallen pieces of plaster.”

The trial court’s view was: “It could not be reasonably foreseen that plaintiff would eat plaster, and be injured.” Plaintiff cites Acosta v. Irdank Realty Co., 38 Misc.2d 859, 238 N.Y.S.2d 713, in which an owner of a multiple dwelling was found negligent in failing after notice to repair walls from which paint and plaster had been falling to the floor. A two-year-old child of a tenant sustained injuries from eating the plaster and paint. The court found plaintiff entitled to damages saying: “That small children go around the house picking up everything within their reach and placing it in their mouths and attempting to eat it is well known. They often have a craving to put in their mouths and eat most unusual things. It would not be unreasonable, therefore, to foresee that Yvette (plaintiff) would pick up pieces of plaster and paint if they were lying around and eat them. * * * [I]n the setting and surrounding conditions which existed at the premises in question, the hazard which the broken walls presented should have been reasonably foreseeable to the landlord.”

However, there is one very significant difference between the Acosta case and this one. In the Acosta case, the defective walls were those of the apartment in which the child lived with her parents (defendant’s tenants) and, of course, her presence there was known and expected. The landlord had the duty to keep the interior walls of the apartment in proper repair under the New York Multiple Dwelling Law and the court found the existing condition was in violation of that law. In this case, the defective condition was in a common hallway and it is not alleged that such small children as plaintiff were ever in the hallway alone or allowed to play there or that defendant had any notice of the presence of such small children there or any reason to expect them to be in the hallway without an older person in charge.

Certainly the petition states facts showing a violation of defendant’s duty to its tenants and members of tenants’ families to keep the common hallway in repair. As to the liability of a landlord for injuries to members of a tenant’s family for such a failure see 32 Am.Jur. 567, Landlord and Tenant, Sec. 691; 52 C.J.S. Landlord and Tenant § 419, p. 66; Prosser on Torts, p. 471, Sec. 80. Of course, for the condition of hallway alleged, the landlord would be liable for injuries due to loose plaster falling on a member of the tenant’s family or for one of them falling because it was on the floor, as such results clearly would be foreseeable results of failure to remedy such condition. However, defendant says its duty “does not extend to a result which is extraordinary and unusual and not the natural and probable consequences of his act or omission.” Therefore, while defendant had a duty to his tenants and members of their families to repair the condition shown, to prevent injury from external contact with falling or fallen plaster, the decisive question here is: Under the facts alleged, did defendant have the duty to plaintiff to prevent, by repairs or removal of the plaster, the kind of injury plaintiff sustained?

Defendant, citing also such cases as Davidson v. Hennegin, Mo.Sup., 304 S.W.2d 836; Mann v. Pulliam, 344 Mo. 543, 127 S.W.2d 426; American Brewing Association v. Talbot, 141 Mo. 674, 42 S.W. 679; Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, relies on the rule of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253: “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” In the Palsgraf case, as explained in Prosser on Torts 169, Sec. 36, “A passenger was running to catch one of the defendant’s trains. The defendant’s servants, assisting him to board it, dislodged a package from his arms, and it fell upon the rails. The package contained fireworks, which exploded with some violence. The concussion overturned some scales, many feet away at the other end’of the platform, and they fell upon the plaintiff and injured her. The defendant’s servants, who were found by the jury to be negligent, could have foreseen harm to the package, or at most to the passenger boarding the train; no harm to the plaintiff could possibly have been anticipated.” The rule of Palsgraf is accepted and stated in the American Law Institute Restatement of Torts, Sec. 281, comment c, stating: “If the actor’s conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.” See Karr v. Chicago, Rock Island and Pacific R. Co., 341 Mo. 536, 108 S.W.2d 44, 48, and cases cited; Vanacek v. St. Louis Public Service Co., Mo.Sup., 358 S.W.2d 808, 810; Law of Torts, Prosser, 168, Sec. 36, Unforeseeable Plaintiffs.

It has been said that a lessor, knowing the family of a tenant includes young children, may assume those in authority over them will protect them and see that they are not permitted to wander alone where there is danger and that the lessor is not negligent in failing to foresee that parents will not protect their very young children from getting into danger. American Fire & Casualty Co. v. Jackson, USCA 5th, 187 F.2d 379; see also Anderson v. Reeder, 42 Wash.2d 45, 253 P.2d 423; Harakas v. Dickie, 224 Mo.App. 171, 23 S.W.2d 651. In these cases, the danger came from the construction or arrangement of the premises or facilities rather than from failure to repair; but this view seems reasonably applicable to children as young as plaintiff being in this hallway. See also McKenna v. Andreassi, 292 Mass. 213, 197 N.E. 879, 884. In a case in which lattice work protecting a stairway landing, where "[c]hildren had been in the habit of playing ” was allowed to become loose causing a child playing there to fall, it was held “that the rule that one making an unintended use of the property cannot recover for its negligent maintenance is ‘inapplicable to infant invitees attracted by dangerous objects * * *.’” Freeman v. Mazzera, 150 Cal.App.2d 61, 309 P.2d 510, 511. See New York Eskimo Pie Corporation v. Rataj, USCA 3rd, 73 F.2d 184; Saad v. Pappageorge, 82 N.H. 294, 133 A. 24; see also 31A C.J.S. Evidence § 80, p. 93; 65 C.J.S. Negligence § 12 b, p. 400, as to characteristics, capacities and propensities of children. Here plaintiff certainly was making :an unintended use of the fallen plaster and the question is whether at that place such a use by a small child was within the range of apprehension under the facts alleged.

The Restatement of Torts, as to legal cause, says in Sec. 431: “The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.” As to foreseeability, the Restatement in Sec. 435 says: (1) “If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.” See Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 474, and cases cited; Tharp v. Monsees, Mo.Sup., 327 S.W.2d 889, 894.

In 1948, the following was added to Sec. 435: “(2) The actor’s conduct is not a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.” (Restatement 1948 Supplement, p. 736.) Comment d, concerning this added provision states: “A result of the actor’s tortious conduct may be one which, either in its extent or the manner in which or the sequence of events through which the conduct operates to bring about the harm, is altogether different from the result which the actor at the time of his negligence recognized or should have recognized as likely to result therefrom. None the less, after the event, such a result may not appear to the court to be so highly extraordinary as to prevent the actor’s conduct from being considered a legal cause of it. What the actor does or should expect depends upon the circumstances which he knows or should know and his forecast in the light of these circumstances as to what is likely to happen. The court’s judgment, as to whether the harm is a normal or highly extraordinary result, is made after the event with the full knowledge of all that has happened.” Comment e is: “It is impossible to state any definite rules by which it can be determined that a particular result of the actor’s negligent conduct is so highly extraordinary as to prevent the conduct from being a legal causé of that result. This is a matter for the judgment of the court formulated after the event, and therefore, with the knowledge of the effect that was produced.” See also 2 Law of Torts, Harper and James, 1134-1151, Sec. 20.5.

Looking back from the harm to plaintiff to defendant’s negligent conduct, our view is that the result (plaintiff being in the hallway and sustaining injury by putting fallen plaster in her mouth) does appear to be so highly extraordinary, under the facts alleged, as to prevent defendant’s conduct from being considered the legal cause of it, when there is nothing in the petition to show that defendant knew or had any reason to expect that such small children would-be in the hallway unattended. We, therefore, hold the trial court reached the correct result in dismissing plaintiff’s petition.

The judgment is affirmed.

EAGER, C. J., and DALTON, HOLMAN and HENLEY, JJ., concur.

STORCKMAN and LEEDY, JJ., dissent and adopt as their joint dissenting opinion the opinion prepared by PRITCHARD, C., in Division Two.

PRITCHARD, Commissioner

(dissenting).

Plaintiff, a child approximately sixteen months old at the time of her alleged injury., has appealed from a judgment of dismissal of her petition for damages for personal injuries in the amount of $18,500. The ground for the appeal, is that the trial court erred in sustaining defendant’s motion to dismiss the petition for failure to state a claim for relief and upon the trial court’s stated reason that “It could not be reasonably foreseen that plaintiff would eat plaster, and be injured.”

Plaintiff’s petition is as follows:

“Comes now plaintiff, a minor, by and through her duly appointed next friend, and for her cause' of fiction against Defendant herein states to the Court as follows:
I
“That at all times hereinmentioned defendant was and is now a corporation duly organized and existing under the laws of'this state and engaged in the general real estate business in the area of Metropolitan St. Louis, Missouri.
II
“That on or about the 31st day of July, 1962, defendant owned a multiple dwelling house located at 5645 Cates Avenue, City of St. Louis, Missouri.
III
“That at all times hereinmentioned plaintiff resided at the aforesaid premises together with her family who were tenants of defendant.
IV
“That on pr about the 31st day of July, 1962, plaintiff was approximately sixteen months of age and was situated in the common hallway located in the abovementioned premises at which time plaintiff consumed pieces of plaster which had been allowed to' fall from the ceiling and wall of said common hallway and plaintiff, as the direct result of the negligence and carelessness of defendant in the maintenance of said common hallway, sustained serious and permanent injuries.
V
“That the aforesaid common hallway, and at the point where said plaster had fallen, was in a dangerous and unsafe • condition as a result of said fallen plaster, the walls and ceilings thereof being in a rotted and decayed condition; that said condition had existed for a sufficient length of time and defendant knew or by the exercise of ordinary care should have know— that said condition was dangerous and unsafe for persons in the area and more particularly those of tender years such as plaintiff, as said pieces of fallen plaster were poisonous to the human system and would likely have been consumed by such persons.
VI
“That plaintiff’s injuries and damages were the direct and proximate result of the negligence and carelessness of defendant in the following particulars:
“A) Defendant negligently and carelessly maintained said common hallway and the walls and ceilings thereof in a rotted and decayed condition so as to allow pieces of plaster to fall therefrom to the floor and created said dangerous condition.
“B) Defendant negligently and carelessly failed and omitted to remove from said hallway said fallen pieces of plaster.
VII
“That as a direct result of defendant’s negligence and carelessness aforesaid plaintiff was caused to suffer from a condition of lead poisoning and iron deficiency anemia; that plaintiff vomited and was nauseated; that plaintiff was caused to be hospitalized for a period of two weeks; that plaintiff’s stomach and internal organs and circulatory system were damaged and impaired; that said injuries are serious and permanent; that plaintiff was caused to suffer great pain of body and mind as a result of said injuries and will in the future so suffer; that plaintiff has been caused to undergo medical care and treatment and will be caused to undergo same in the future.
“WHEREFORE, plaintiff prays for judgment against defendant in the amount of EIGHTEEN THOUSAND FIVE HUNDRED DOLLARS (18,-500.00) together with her costs herein expended.”

We defer to the well-established rule that in adjudging plaintiff’s petition as to its sufficiency in stating a claim upon which relief may be granted we must deem her well-pleaded allegations to be true and give them a liberal construction, according thereto their reasonable and fair intendment. Dallas v. City of St. Louis, Mo., 338 S.W.2d 39; Fitzpatrick v. Federer, Mo., 315 S.W.2d 826.

It is pleaded that there is a common hallway on defendant’s premises, and it may therefore be concluded that defendant had the control over the hallway and was charged with the duty to keep and maintain it in a reasonably safe condition for its tenants, and if it failed to do so and an injury occurred as a proximate result of such failure, defendant would be answerable in damages for its negligence. Darlington v. Railway Exchange Bldg., 353 Mo. 569, 183 S.W.2d 101; Wilson v. Jones, Mo.App., 182 S.W. 756.

Plaintiff’s contention with respect to the foreseeability issue presented (that plaintiff would eat plaster and be injured) is that if the defendant’s conduct produces injury to another, the fact that defendant neither foresaw nor should have foreseen the extent of harm or the manner in which it occurred does not absolve it from liability; that it is not necessary that plaintiff demonstrate that the particular consequences of such negligence could have been foreseen, but only that the injuries are the natural, although not the necessary and inevitable result of defendant’s negligence, and defendant may be liable for anything which appears to be the natural and probable consequence of his act or omission. Plaintiff says further that defendant is required only to foresee that harm in some manner will result from the alleged negligent conduct in permitting the fallen plaster to be in the common hallway of defendant’s premises.

Defendant asserts that the alleged- facts do not impose upon defendant any duty to protect its tenants from any such'remote and unforeseeable consequence; that the duty of a defendant does not extend to a result which is extraordinary and unusual and not the natural and probable consequences of his act or omission.

Thus the parties are in accord that the rule upon “foreseeability” in negligence cases in Missouri is that some injury as a result of the negligent act or omission must have been reasonably foreseeable. “The question is not whether the particular injury under consideration should have been anticipated, but whether, after the occurrence, such injury then appeared to have been the reasonable and probable consequence of the negligent act or omission. And, it is immaterial that the precise manner in which the injury occurred was neither foreseen nor foreseeable.” Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 474. See also Tharp v. Monsees, Mo., 327 S.W.2d 889, 894 [6], where this court said: “It is of course unnecessary that the party charged should have anticipated the very injury complained of or anticipated that it would have happened in the exact manner that it did. All that is necessary is that he knew or ought to have known that there was an appreciable chance some injury would result.”

The question which is resolved under the alleged facts of this case and the briefs of the parties is whether or not the occurrence in controversy was so extraordinary and unusual that defendant could not and would not be held to have expected or foreseen it so that it would have been under a duty to take precautionary measures which would have prevented the incident.

Under the alleged facts of this case, it is seen that plaintiff, being a small child, rightfully in the common hallway where defendant could reasonably anticipate she would be, might pick up the easily accessible poisonous plaster from the floorway where it had fallen from the walls and ceiling which were in a decayed and rotted condition. We take judicial notice of facts relating to the habits, curiosity and propensities of small children, 31A C.J.S. Evidence § 80, p. 93; Haberly v. Reardon Company, Mo., 319 S.W.2d 859, 868 [11] (child’s proclivity to assist parent who was painting with Bondex); Ozbun v. Vance, Mo., 323 S.W.2d 771, 775 [3, 4] (acts of a child four years old are wholly unpredictable and they are almost entirely devoid of an appreciation of danger) ; 65 C.J.S. Negligence § 12 b, p. 400. Thus, it is common knowledge, by which defendant may be charged, that children such as the plaintiff have a natural proclivity to place all kinds of objects in their mouths, and that their parents or custodians constantly must be on guard to prevent their doing this and to train them not to do so. Under the pleaded circumstances here, it could reasonably be foreseen that this small child would thus ingest the foreign poisonous substance, made accessible to her by defendant’s lack of due care, into her system and be thereby injured. See Acosta v. Irdank Realty Corp., 38 Misc.2d 859, 238 N.Y.S.2d 713, where the infant plaintiff ate lead paint which peeled off walls and which had fallen to the floor in a multiple dwelling. The court there said with respect to the occurrence 'being reasonably foreseeable, “that small children go around the house picking up everything within their reach and placing it in their mouths and attempting to eat it is well known. They often have a craving to put in their mouths and eat most unusual things. It would not be unreasonable, therefore, , to foresee that Yvette would pick up pieces of plaster and paint if they were lying around and eat them.”

We appreciate defendant’s position that it is not an insurer for the safety of plaintiff, and we note the cases cited upon the proposition that it is not negligence not to take precautionary measures to prevent an injury, which if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened. Mann v. Pulliam, 344 Mo. 543, 127 S.W.2d 426; American Brewing Association v. Talbot, 141 Mo. 674, 42 S.W. 679, 682. See also 65 C.J.S. Negligence § 108, p. 661. However, under the pleaded circumstances of this case, we hold that the occurrence was not so unusual, extraordinary and exceptional that defendant could not reasonably be held to have foreseen that the infant plaintiff would ingest the deleterious substance as a natural and probable consequence of defendant’s negligent omission of duty in keeping the walls and ceiling of its hallway in good repair. 65 C.J.S. Negligence § 66, p. 558.

It is our view that the judgment of dismissal of plaintiff’s petition should be reversed and the cause remanded.