author: CLEMENS, Commissioner.

text:
    Geneva Leona SIMPSON, Plaintiff-Respondent, v. George E. BLACKBURN, Clarence D. Blackburn, William Russell Blackburn, Grace M. Kezer, James Merlin Kelsick, Individually and as Administrator of the Estate of Omer Creighton Blackburn, Estate No. 1144, in the Probate Court of Audrain County, Missouri, Defendants-Appellants.
    No. 32735.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.

      Don C. Carter, Sturgeon, Paul W. Bennett, Vandalia, for appellants.
    Granville Collins, Fulton, William W. Van Matre, Jr., Van Matre & Van Matre, Mexico, for respondent.
   CLEMENS, Commissioner.

This law suit is an effort by plaintiff Geneva Leona Simpson to be declared an heir of Omer C. Blackburn, who plaintiff claims was her great uncle. The trial court found for plaintiff, and the defendant administrator and other heirs appealed to the Supreme Court, asserting that the issue involved plaintiff’s claim to a one-seventh share of a $200,000 estate. The transcript did not affirmatively show the value of the estate, and the Supreme Court transferred the case to this court.

Two-sevenths of Omer C. Blackburn’s estate will pass to the heir or heirs of his deceased brother, John A. Blackburn. John A. Blackburn left one daughter, defendant Grace M. Kezer. His only son, Clark P. Blackburn, predeceased him. Plaintiff claims she is the legitimated, adulterine bastard child of Clark Blackburn, her mother’s paramour, whom her mother later married. The defendants contend plaintiff is the child of James Cecil Gilman, to whom plaintiff’s mother was married at the time of plaintiff’s birth.

The ultimate issue is one of law: Is plaintiff an heir of Omer C. Blackburn? That turns on the factual issue of her paternity. If plaintiff is the child of James Gilman, husband of her mother when plaintiff was conceived and born, she is not a Blackburn heir. But if plaintiff is the actual and recognized child of Clark Blackburn, her mother’s paramour, then plaintiff is an heir of Omer C. Blackburn.

To establish this claimed status, plaintiff relies on § 474.070 V.A.M.S. It declares that if a man has a child by a woman whom he afterward marries and recognizes the child to be his, the child is thereby legitimated. This statute applies not only to a child born out of wedlock, but also to a child, like plaintiff, born in wedlock but sired by a man who was not her mother’s husband. Nevins v. Gilliland, 290 Mo. 293, 234 S.W. 818[4]. The three essential elements of such legitimation are actual paternity, intermarriage and recognition. Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524[ 1 ]. The defendants concede these legal principles but contend, primarily, that the evidence is insufficient to show that Clark Blackburn was the plaintiff’s father. Defendants invoke “the strongest presumption known to the law”: that a child born in wedlock is the child of the marriage. Bernheimer v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745[10].

With these principles of law to be applied to the facts of the case, we shall detail the evidence.

We first note the scope of our appellate review. We must view the case upon both the law and the evidence, weigh the evidence, and render such judgment as the trial court ought to have given. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the witnesses’ credibility. Civil Rule 73.01(d), V.A.M.R. The trial judge was steeped in the atmosphere of the trial, saw and heard the witnesses, heard the arguments of counsel, and was in a position to interpret and appreciate the evidence with all its shades of meaning better than we can do merely by reading and studying a written report of it. He had in his presence the living thing; we have but a dead image of it.

Plaintiff’s mother, nee Laura McNanny, married James Gilman in 1921. They lived on a rented farm in Callaway county. Laura testified that she ceased having marital relations with her husband in 1922 and in 1924 began an adulterous relationship with a neighbor, Clark Blackburn. Laura became pregnant and left her husband. Seven months after the separation Laura gave birth to plaintiff, on April 6, 1925. Then seven months after the birth, Laura was divorced from James Gilman; four days later she and Clark Blackburn were married. Details of this part of the case will be developed later, after we relate the evidence concerning Clark Blackburn’s recognition of plaintiff as his daughter.

Clark Blackburn and Laura were married and lived together from November 11, 1925, until he was granted a divorce from her in 1934. A month or so after their marriage Clark and Laura Blackburn took plaintiff, then eight months old, to the farm home of his parents, John A. and Sally Blackburn. Laura testified this was done because Clark was nervous around children. Some arrangement for plaintiff’s permanent care was made, and plaintiff thereafter made her childhood home with John and Sally Blackburn.

During her childhood the plaintiff was verbally acknowledged as Clark Blackburn’s daughter by him and by his parents, and at times by his only sister, defendant Grace Kezer.

Plaintiff’s name “Geneva Leona Blackburn” is consistent with her claim of recognition by Clark Blackburn. The name “Geneva Blackburn” was used when plaintiff started school. Plaintiff’s original birth certificate showed only the surname “Gilman.” Then in 1938, when plaintiff was thirteen years old, the name “Geneva Leona” was added to her birth certificate. (The documentary evidence to support this addition had been destroyed.) “Geneva Leona” was the same name Clark Blackburn had given several years before to a previous daughter who died in infancy. Next, in 1944, a new birth certificate was issued showing plaintiff’s name as “Geneva Leona Blackburn.” This certificate was issued on the strength of Clark Blackburn’s affidavit of July 11, 1944, whereby he swore: “I further certify that Geneva Leona Blackburn was born April 6, 1925, and that I am her father.”

Plaintiff offered other documentary evidence to show recognition. In 1934, when plaintiff was nine years old, Clark Blackburn sued Laura for divorce. In his verified petition he stated that one child, Geneva Leona Blackburn, had been born of the marriage and was being reared by his parents. He prayed for her custody. At the divorce trial Clark Blackburn testified to his paternity of plaintiff as he had alleged in his petition. By the decree, Clark was divorced from Laura and granted custody of the child. By Clark Blackburn’s will, executed in 1938 and probated in 1949, he bequeathed one dollar “to my daughter, Geneva Leona Blackburn.” By then Clark had divorced Laura and married Nellie Martin, to whom he left the residue of his estate. The defendants showed that a month before his death in 1949, when plaintiff was twenty-four years old, Clark Blackburn executed another affidavit. Therein he accused plaintiff of “making trouble” for his family and denied he had ever recognized or claimed her as his daughter.

So much for Clark Blackburn’s own conduct showing recognition of plaintiff as his daughter. As said, his family participated in this recognition. They usually spoke and referred to one another by such family names as “Daddy,” “Grandfather,” “Grandmother,” and “Aunt Grace.” Plaintiff was usually spoken of as “my daughter,” “our granddaughter” or “Clark’s daughter.” Evidence of other conduct of the Blackburn family bears out plaintiff’s' claim of recognition as Clark Blackburn’s daughter.

For nine years plaintiff went to the Fulton public schools under the name of Geneva Blackburn. The records showed “Parent or Guardian — John A. Blackburn.” Then in 1938 plaintiff moved to Wellston to the home of defendant Grace Kezer, who enrolled her in high school. Added information on the Wellston school records showed Laura’s parents were “C. P. and Laura Blackburn,” and that she was living with “Grace M. Kezer — aunt,” at 6335 Wellsmar avenue. Mrs. Kezer denied giving this information to the school and denied referring to plaintiff as her niece.

On three occasions before this lawsuit plaintiff participated without objection in probate proceedings as an heir of the Blackburn family. The first probate proceeding concerned the will of John A. Blackburn, Clark’s father. By his will, executed and probated in 1948, John A. Blackburn gave land and money “to my great grandsons,” named children of plaintiff. He also gave plaintiff a dwelling for use during the minority of one of her children. Next, there were probate proceedings of the will of Clark Blackburn, previously mentioned. In applying for letters testamentary in 1949, Clark’s widow, Nellie Blackburn, named plaintiff as his daughter. Last, in 1955 Maude O. Hazlett died intestate. She was predeceased by her sister, Mrs. John A. (Sally) Blackburn, mother of Clark Blackburn, also deceased. On information given to the administrator by someone, he listed Grace Kezer as the daughter and only living child of Sally Blackburn and plaintiff as the daughter and only child of Clark Blackburn, deceased son of Sally Blackburn. With Grace Kezer’s knowledge of this information, she and plaintiff shared equally in one-tenth of the distribution of Maude Hazlett’s estate.

Defendant Grace Kezer and three other witnesses testified to conversations with Clark Blackburn in which he said plaintiff was not his child. These conversations were somewhat vague as to times and circumstances. At least part of them were made after the apparent breach of relationship between Clark Blackburn and the plaintiff that had occurred when he made his last affidavit in 1949, a month before he died. These statements were offset by ten other witnesses who testified for plaintiff. They quoted Clark Blackburn’s and other Blackburns’ statements referring to plaintiff as Clark and Laura’s daughter.

This was the evidence of Clark Blackburn’s recognition of plaintiff as his daughter. As said, the three elements of legitimation are actual paternity, intermarriage and recognition. We go now to evidence of actual paternity.

Plaintiff’s mother, now Laura Elsenrath, testified in detail about her marital relations with her first husband, James Gilman, and her adulterous relations with Clark Blackburn. The substance of her testimony follows. When eighteen years old Laura married James Gilman, in March of 1921. Just a year later Laura gave birth to a stillborn child. She denied having sexual relations with her husband, James Gilman, after that time. She explained this was because “he was a man of self-abuse” and “didn’t have much use for a woman.” After this stillbirth Laura continued to live with her husband in their farm home, but they occupied separate bedrooms. Two years after the stillbirth Laura and a friend of hers, Agnes Counts, met Clark Blackburn, a 30-year-old widower who lived alone on another farm in the neighborhood. This was in the spring of 1924. Laura and Clark began meeting clandestinely and having intercourse one or twice a week. She told her husband she was in love with Clark Blackburn. On July 4, 1924, Laura and Clark Blackburn were at a picnic and later went to his house and had intercourse. Laura’s menstrual periods ceased soon thereafter. The next month Laura left Gilman’s home and moved to her mother’s home nearby. There she gave birth to the plaintiff on April 6, 1925, nine months and two days after the July 4th act of intercourse at Clark Blackburn’s house. Clark Blackburn paid the medical expenses of the delivery. Laura had previously told James Gilman of her pregnancy and asked him for a divorce. In July, 1925, when plaintiff was three months old, Laura filed suit against James Gilman, and was divorced from him on November 7, 1925. Clark Blackburn made all the arrangements for the divorce with a Fulton lawyer and paid all the expenses. Custody of “Geneva Gilman” was awarded to Laura, who had neither asked for nor received child support from James Gilman. Four days after the divorce Laura and Clark Blackburn were married.

On cross-examination Laura was confronted with the 1925 divorce records. In the verified petition she had alleged her own good demeanor, her husband’s misconduct, including false accusations of her associating with other men, and that a female child, Geneva Gilman, was born of the marriage. Laura explained the petition by saying Clark Blackburn had made prior arrangements for the divorce with a Fulton lawyer, that the petition was already prepared and signed by counsel when Clark Blackburn took her to the lawyer’s office, and that she signed the acknowledgment without reading the petition.

Preparatory to cross-examining Laura at the present trial, counsel for the defendants began a search for the record of her testimony in the 1925 Gilman divorce trial. They learned that the court reporter had been Howard B. Lang, later Probate Judge of Boone county. His old stenographic notes were finally unearthed and then transcribed by Judge Lang. The accuracy of the transcript was not questioned. It was introduced to impeach Laura’s present testimony that Clark Blackburn, rather than James Gilman, was plaintiff’s father. Laura had previously testified that the main trouble with her husband was that “he accused me of other men when I wasn’t guilty.” She had answered no to leading questions about keeping company with other men. At this trial Laura admitted that she had lied in 1925. She gave two excuses: she had not associated with other “men” but only with one man, Clark Blackburn; she had been told by Clark Blackburn and the lawyer how she should testify, and was warned by them that she would get the divorce only if she did so.

Laura’s testimony of her adulterous relationship with Clark Blackburn was partially corroborated by her erstwhile friend, Agnes Counts, who testified she was with Laura when Laura first met Clark Blackburn in the spring of 1924. She knew Laura and Clark were together frequently, particularly at his house on the afternoon of the 4th of July picnic. Soon after this Laura told Agnes Counts that she was pregnant with Clark Blackburn’s child.

Laura’s former husband James Gilman testified for the defendants by deposition. At the time his deposition was taken he had been a patient in a county nursing home for three years. He was vague about names and dates, and some of his answers indicated he did not fully understand the questions. The only significant testimony concerned his marital relations with Laura. He was sure he and Laura had had only one child, who died at birth. Three times James Gilman answered that he never had sexual intercourse with Laura after the birth of the stillborn child (April 10, 1922). Later, in response to a leading question, he answered that he and Laura did have sexual intercourse up to the time of their separation (August 31, 1924). Gilman further said the stillborn child was Laura’s last pregnancy by him. He said he had been aware of Laura’s associating with Clark Blackburn during their marriage, and added that “everyone” knew Geneva was Clark Blackburn’s child.

Other evidence of plaintiff concerned the similar appearance of Clark Blackburn and plaintiff’s children. Two adult photographs of Clark Blackburn do bear a striking resemblance to photographs of two of plaintiff’s children. Considering that Clark Blackburn would, at best, be only one of the four grandparents of plaintiff’s children, this evidence is of limited value.

In reaching our conclusion herein we shall consider the defendants’ contentions that plaintiff is presumed to be the lawful child of her mother’s husband, James Gil-man, and their contentions that the evidence does not support plaintiff’s claims that Clark Blackburn is in fact her father and that he recognized her as his daughter. Counsel have cogently presented their contentions of the law and evidence. We are indebted to them for forceful briefs and oral arguments.

Presumption of Legitimacy

On virtually every page of defendants’ brief they refer to the presumption of plaintiff’s legitimacy: that having been born during the marriage of Laura and James Gilman, plaintiff is presumed to be Gilman’s daughter. This presumption of legitimacy is of ancient origin and arose under the common law, when bastards were nullius filii, “the sons of nobody.” The presumed legitimacy of a child born in wedlock was based upon broad principles of natural justice: the supposed virtue of the mother, and the protection of innocent offspring from the odium and disabilities of bastardy. 10 Am.Jur.2d, Bastards § 10. Missouri decisions attribute the purpose of the presumption to our courts’ “righteous zeal to protect the innocent offspring.” Ash v. Modern Sand & Gravel Co., 234 Mo.App. 1195, 122 S.W.2d 45 [6]; Watts v. Watts, Mo.App., 325 S.W.2d 40 [2]. In our case no such purposes would be served by the presumption. This, because the mother confesses her immorality, and the daughter asserts her bastardy. In defendants’ brief they invoke the presumption for a contrary purpose: “in order to prevent fraudulent claims, such as asserted in this case.” They cite no authority for that theory, and we find none.

Because the defendants rely so strongly on this presumption of legitimacy, we must distinguish between conclusive presumptions, which are rules of substantive law, and rebuttable presumptions, which are rules of evidence. In the case of Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311 [4], the court spoke of the oft-expressed view that a presumption disappears when substantial contrary evidence comes in, and added:

“* * * a presumption is a rule of law (unless it is a conclusive presumption, i. e., a rule of substantive law) which puts the burden of producing some substantial evidence on the party presumed against; but that when substantial evidence is adduced, the presumption disappears and the jury receives the issue free of any presumption. Of course, the facts which gave rise to the presumption in the first place remain in the case and those facts, as well as the facts to the contrary, are for the jury. Michler v. Krey Packing Co., 363 Mo. 707 [banc], 253 S.W.2d 136, 139 [1-4].”

We will consider the claimed presumption of plaintiff’s legitimacy in the light of that principle. In the early history of law the presumption of legitimacy was conclusive — and thereby a matter of substantive law — but this is no longer so. Now it is a rebuttable presumption — and thereby a rule of evidence. Boudinier v. Boudinier, 240 Mo.App. 278, 203 S.W.2d 89 [4] ; F.- v. F.-, Mo.App., 333 S.W.2d 320[10].

For this reason, courts’ expressions about the presumption must be considered as comments on the quantum of the evidence— the evidence in the particular case under review. As said in Busby v. Self, 284 Mo. 206, 223 S.W. 729[1], this ancient doctrine “has been modified from time to time to conform to the circumstances of particular cases or the idiosyncrasies of particular judges.” In Missouri decisions cited by the parties we find a broad variety of expressions about the quantum of evidence necessary to overcome the presumption: Drake v. Milton Hospital Ass’n, 266 Mo. 1, 178 S.W. 462 (clear and satisfactory proof that there was no sexual intercourse between the husband and wife); Ash v. Modern Sand & Gravel Co., supra (no judicial escape from such a malign conclusion); F.-v. F.-, supra (clear and convincing evidence allowing no conclusion but that of illegitimacy); Needham v. Need-ham, Mo.App., 299 S.W. 832 (clear, convincing and satisfactory proof of no intercourse) ; Boudinier v. Boudinier, supra (sufficient weight and clarity to convince the triers of fact); Jackson v. Phalen, 237 Mo. 142, 140 S.W. 879 (strong and persuasive evidence leaving no reasonable doubt); Stripe by Shannon v. Meffert, 287 Mo. 366, 229 S.W. 762 (clear and convincing evidence of no intercourse by husband); and Bower v. Graham, 285 Mo. 151, 225 S.W. 978 (the presumption of legitimacy may be destroyed by showing the fact to be otherwise).

The defendants have cited seven Missouri cases stating the presumption that a child born during wedlock is legitimate. These must be considered in the light of the facts to which the presumption was applied. Not one of the cited cases concerned a child who asserted paternity by a man other than her mother’s husband, as plaintiff does here. The cases of Watts v. Watts, supra, and F.- v. F.-, supra, were divorce cases in which the presumption was applied against the husbands who denied paternity. Thus, the presumption was applied in those cases to protect the innocent child from bastardy. In Jackson v. Phalen, supra, and Ash v. Modern Sand & Gravel Co., supra, each plaintiff made a claim that depended on his status as a legitimate child and showed he was born in wedlock. In each case the defendants denied the plaintiff’s legitimacy, claiming someone other than the mother’s husband was the father. In each case the court invoked the presumption of legitimacy arising from birth in lawful wedlock — again to protect the child from the disabilities of bastardy. Defendants cite two cases in which the presumption was stated but not applied, and was therefore obiter dictum: Stripe by Shannon v. Meffert, supra, and Drake v. Milton Hospital Ass’n, supra. Defendants’ cited case of Needham v. Needham, supra, cited the presumption but did not follow it.

In view of the lack of uniformity in the decisions concerning the quantum of evidence to overcome the presumption, in view of the different factual situations in those cases, and in view of the fact that the protective purposes of the presumption are absent in this case, we shall view the evidence as in any other court-tried case, and determine whether the plaintiff has sustained her burden of producing substantial evidence to cause us to believe that Clark Blackburn was her father and recognized her as his daughter. In this we are sustained by the decision in a case remarkably similar on both the facts and the issue of actual paternity.

That case is Busby v. Self, 284 Mo. 206, 223 S.W. 729, decided in 1920. Two children, Lucy and Ezra, claimed to be the adulterine bastard children of Frederick Molesdale, although both were born in wedlock between their mother and Isaiah Molesdale. Isaiah Molesdale, of Lancaster, England, had a son, Frederick, by his first marriage, and his wife died. In 1857 Isaiah came to America with Frederick, then sixteen years old, and settled in Crawford county, Missouri. Frederick served in the army and in August, 1865, came to live with his father and family. Isaiah had married again, in 1863, to Louisa Jane Woods, a girl much younger than his son Frederick, and with whom Frederick had kept company before he enlisted in the army, and before she had married Isaiah. Isaiah operated a mill several miles from home and often remained there during the week. Frederick continued his affair with Louisa, his stepmother, and friction arose between the father and son concerning Frederick’s association with Louisa. During this time Lucy and Ezra were born. Isaiah disowned Lucy and Ezra, claiming they were Frederick’s children. Finally Frederick left Crawford county, taking Louisa and the two children, Lucy and Ezra, with him. He and Louisa lived together as husband and wife, and educated the two children. Later, Louisa somehow obtained a divorce from Isaiah and married Frederick. On trial in the inheritance case the court found that Frederick was the father of Lucy and Ezra. Thus, the facts and issues in Busby v. Self are readily comparable to our case; i. e., a a child was born during a lawful marriage as a result of the wife’s adultery with a paramour, who later married the mother and recognized the child as his own. There, as here, each child was seeking to establish heirship to the actual father by virtue of § 474.070, V.A.M.S., which declares that if a man has a child by a woman whom he afterward marries and he recognizes the cliild, the child is legitimated. In upholding the legitimacy of Lucy and Ezra Molesdale as the children of Frederick Molesdale, the court said:

“The question is whether Ezra Moles-dale * * * and defendant Lucy Johnson, were, under the provisions of section 341 of the Revised Statutes of 1909 [now § 474.070, V.A.M.S.] shown to be the legitimate children of Frederick Molesdale. The cause was tried by the appellants upon the theory that children born in wedlock are conclusively presumed to have been begotten by the husband until its impossibility is shown. This ancient doctrine, borrowed from the civil law, has been modified from time to time to conform to the circumstances of particular cases or the idiosyncrasies of particular judges, but these modifications have frequently tended to defeat or impair one of the principal objects of the rule by the public exhibition in court of matters calculated to suffuse with blushes even the judicial cheek. The rule rested upon the preservation and encouragement of public morality, with incidental protection to the child born in lawful wedlock from the stigma of illegitimacy, and with no thought of the moral right that the innocent child might have against his guilty progenitor for the same protection. Nor did it take into consideration the subjection of the adulterine child to the tender mercies of a father forced upon it by law, and who would treat it as an interloper.
“The Legislature, which speaks as the mouthpiece of the public policy of the state, held all these things in careful consideration when it enacted this section. While it did not abate one jot in its condemnation of immorality, it looked broadly to the protection of the innocent and wronged and helpless child, giving the guilty [parents] an opportunity to redress, as far as possible, the wrong they had perpetrated against their own children, and the outraged husband the opportunity, without the duty, to surrender the result of his connubial shame to its natural protection. * * * So far as the guilty father is concerned, the marriage and recognition is equivalent to the adoption provided for by statute in other cases.”

We revert now to the evidence in our case. The marriage between Clark Blackburn and Laura Gilman is admitted. This leaves the questions of Clark Blackburn’s paternity and his recognition of plaintiff as his daughter. We first take up the question of recognition.

Recognition

The evidence demonstrates beyond doubt that over a period of twenty-three years Clark Blackburn did recognize the plaintiff as his daughter. According to Laura, Clark Blackburn paid for her confinement expense and arranged and paid for her divorce from Gilman. He married Laura four days later. According to his brother-in-law, Clark Blackburn named the plaintiff “Geneva Leona,” the same name as a child of his who had died. By an agreement between Clark Blackburn and his parents, the plaintiff was reared in their home. At school and in the neighborhood she was consistently referred to by Clark Blackburn and his family as his and Laura’s daughter. When Clark Blackburn divorced Laura in 1934, he asked for and was granted custody of plaintiff, then nine years old. In 1944 Clark Blackburn made an affidavit asserting his paternity of plaintiff to enable her to get a birth certificate under the name of Blackburn. In his 1938 will Clark Blackburn named plaintiff as his daughter, and later she participated in his and two other estates in the Blackburn family. Further, the testimony of James Gilman showed his own nonrecognition of plaintiff as his daughter; he said everyone knew she was Clark Blackburn’s daughter. As against all this, the defendants showed that plaintiff was not reared by Clark Blackburn but by his parents; and that Clark Blackburn had at three unspecified times verbally denied his paternity, and did so again in an affidavit made a month before he died in 1949. As urged by the defendants we have compared this evidence of recognition with that in the case of Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524[5-8]. In that case there was strong evidence, much of it documentary, of non-recognition. The Lowtrip case does these defendants more harm than good. We hold that the evidence here powerfully demonstrated Clark Blackburn’s prolonged recognition of plaintiff as his daughter.

Paternity

It is more difficult to determine with confidence the critical issue of Clark Blackburn’s actual paternity of plaintiff. For this we look to the testimony of her mother, that of James Gilman, and evidence of Clark Blackburn’s conduct.

Laura’s testimony of plaintiff’s paternity falls into two parts: that Clark Blackburn was, and that James Gilman was not, plaintiff’s father. During the time of plaintiff’s conception, did Laura have sexual intercourse only with Clark Blackburn, or also with her husband James Gilman ? The testimony of Laura and Gilman leaves no doubt that Laura and Clark Blackburn did have intercourse during that time. Clark Blackburn’s conduct thereafter is consistent with his and Laura’s adultery. The more crucial question is whether Laura and Gilman did not have intercourse. That they were married and living in the same house raises a strong inference that they did. Laura says not; that after the birth of her stillborn child she moved into a separate bedroom and never again had intercourse with Gil-man.

Laura’s present testimony that she did have intercourse with Clark Blackburn while married to Gilman is contradicted by her testimony in her 1925 divorce suit against Gilman. She then swore that Gil-man had falsely “accused me of other men.” Laura now admits she lied. She admits she signed the affidavit to the divorce petition saying that plaintiff was born of her marriage to Gilman, but she did not then testify that Gilman was plaintiff’s father. Her statement that plaintiff was “born of the .marriage” was her lawyer’s language — as much a conclusion of law as a statement of fact. She now says the divorce petition and her testimony were dictated by Clark Blackburn, who, “made all the arrangements.” Defendants contend — not without logic— that Laura’s perjured testimony robs her present testimony of all credibility. The answer is not so simple.

We must consider that Laura’s false testimony in 1925 may have been motivated by her desire to marry her paramour, and thereby relieve the innocent child of the stigma of her own iniquity by giving their child her proper name and status as the daughter of Clark Blackburn. We must remember, too, that we are passing on plaintiff’s rights, not Laura’s. Laura was the wrongdoer, not plaintiff. The crux of evaluating Laura’s present testimony is whether she, as plaintiff’s witness, is telling the truth now when she says she did not have marital relations with her husband during the period of conception. The trial court obviously did believe Laura’s testimony. Although there were no findings of facts, the court’s judgment in plaintiff’s favor is consistent with belief — and inconsistent with disbelief — of Laura’s present testimony. In assessing Laura’s credibility the trial judge had a unique advantage. He could assess her sincerity, her frankness, in relating her shameful conduct and acknowledging her previous false testimony,, her reaction to piercing cross-examination,, and all the other nuances of a witness’s-testimony that are apparent to a trier of fact but which disappear in the process of being filtered through the reporter’s shorthand notes and typewriter into the transcript. Considered in the light of James Gilman’s testimony and evidence of Clark Blackburn’s conduct, Laura’s present testimony is not incredible. So we must, and do, defer to the trial court on the question of Laura’s credibility.

We look now to the deposition testimony of defendants’ witness James Gilman. It is inconsistent as to the time he and Laura ceased marital relations. It will be recalled that Laura testified that after the birth of their stillborn child she moved into a separate bedroom and then ceased intercourse with Gilman, and that she moved out of their house two years later. Gilman testified positively that he and Laura had no-intercourse after the birth of the stillborn child. Later he testified they had intercourse until the time of their “separation.” He was vague about the time of the separation, and it is not clear whether he was referring to the separate bedrooms or to Laura’s actually moving out. On the whole, his testimony supports Laura’s testimony that their marital relations ceased at the time of the stillbirth, long before plaintiff was conceived. This conclusion gains further support from Gilman’s belief and repeated statements through the years that plaintiff was Clark Blackburn’s daughter, not his own.

We have now considered Laura’s and James Gilman’s testimony of plaintiff’s paternity. We turn to the previously related testimony of Clark Blackburn’s recognition of plaintiff as his daughter — as that recognition bears on the issue of his actual paternity. Implicit in that recognition is Clark Blackburn’s belief that he did —and that James Gilman did not — sire Laura’s child. Of course, Clark Blackburn could not know that James Gilman was not the father of Laura’s child. (As Shakespeare told us in The Merchant of Venice, “it is a wise father that knows his own child.”) However, recognition of a child .as one’s own is a “supporting fact” and tends to demonstrate actual paternity. Lowtrip v. Green, supra, 252 S.W.2d at 1. c. 526; Bower v. Graham, supra, 225 S.W. at 1. c. 980.

Considering then the testimony of Laura and James Gilman concerning Clark Blackburn’s paternity of plaintiff, and the supporting testimony of Clark Blackburn’s recognition of plaintiff as his daughter, the •evidence causes us to believe that Clark Blackburn was — and James Gilman was not — the father of the plaintiff. Add to this our finding that Clark Blackburn recognized plaintiff as his daughter and the conceded fact that he married her mother, .and the judicial result is that the trial court did not err in adjudging that plaintiff is the legitimated daughter of Clark Blackburn under § 474.070, V.A.M.S.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    MOUND CITY SUPPLY COMPANY, a Corporation, Plaintiff-Appellant, v. WOODLAND DEVELOPMENT CORPORATION et al., Defendants-Respondents.
    No. 32646.
    St. Louis Court of Appeals. Missouri.
    April 18, 1967.

      Jack E. Koslow, Clayton, for appellant.
    Robert C. Jones, Ziercher, Tzinberg, Human & Michenfelder, Clayton, for respondents.
   CLEMENS, Commissioner.

Plaintiff Mound City Supply Company sued the defendants for a $5,893 material-man’s lien against 23 lots in the Wrenwood subdivision of St. Louis county. The trial court, sitting without a jury, denied the lien. Plaintiff appeals, contending that the evidence compels the granting of its lien under the general mechanic’s lien statute, § 429.010, V.A.M.S., and the “contiguous lots statute,” § 429.040, V.A.M.S. We review the case on both the law and the evidence. Civil Rule 73.01, V.A.M.R.

The pleadings conceded the parties’ status : Plaintiff sells lumber and building supplies. It sold materials on orders placed by defendant Woodland Development Corporation, which was building numerous houses in the Wrenwood subdivision. The defendants Kaufmann, Smiley, Rohlfing, Iliff and Oslica separately own 23 of the 71 lots in the subdivision. The other defendants hold deeds of trust on various lots.

Plaintiff’s petition, so far as pertinent to the issue before us, further alleges: Between July 11 and October 30, 1962, at Woodland’s request and “under one continuous arrangement,” plaintiff supplied $5,893 worth of materials which were used for building homes on the defendant lot owners’ 23 contiguous lots in Wrenwood. (The petition was devoid of any allegation of a contract between plaintiff and the defendant lot owners, or between Woodland and the defendant lot owners.) By their answers to this petition the defendants generally denied a contract existed between plaintiff and Woodland Development Corporation, denied that plaintiff furnished the materials, and denied that the materials were used on any of the 23 lots. Defendants’ answers also denied that the lots were contiguous. The court tried the case on these pleadings, and upon stipulation of facts and the depositions of plaintiff's president and its salesman.

By their stipulation the parties admitted only that the 23 lots were accurately platted on a map attached to the stipulation and that the amounts of plaintiff’s charges were reasonable.

Plaintiff’s salesman Gerald Voss testified : He talked with Woodland’s Bob Carpenter about selling materials to Woodland for part of the construction in Wrenwood subdivision, giving him a price list of materials. The quoted prices were based on the prospect of plaintiff’s furnishing materials for a substantial number of homes. From time to time Woodland placed purchase orders with plaintiff but it also bought materials from other suppliers, particularly when their prices were better. Mr. Voss considered Woodland to be “a definite account.” He said nothing about either the delivery or the use of the materials ordered. Plaintiff’s president David S. Turken testified : At various times his company quoted prices to Woodland, and the materials in question were ordered for and delivered to the Wrenwood subdivision. He said he did not know what use was made of any specific materials or what materials went to any particular lot. From time to time plaintiff received and deposited thirteen checks from defendant Community Federal Savings and Loan Association. These checks designated particular lots and represented partial payments on plaintiff’s account with Woodland. Mr. Turken endorsed each check under a printed statement waiving plaintiff’s lien rights on 13 of the 23 lots.

These pleadings and this evidence are the basis of plaintiff’s case for the lien on the 23 lots. The trial court rendered judgment against plaintiff — correctly so, because plaintiff did not meet the statutory requirements for the lien it sought.

Plaintiff’s basic right to any lien arises under the general mechanic’s lien statute, § 429.010, V.A.M.S. Omitting inapplicable words, it declares:

“Every person who shall furnish any material for any improvements upon land by virtue of any contract with the owner, or his contractor, shall have for materials a Hen upon such improvements and upon the [lot] belonging to such owner on which the same are situated * *

In an effort to extend its lien to all 23 lots, plaintiff further relies on the contiguous lots statute, § 429.040, V.A.M.S. Again omitting inapplicable words, that statute says:

“When the improvements consist of two or more separate buildings upon contiguous lots, erected under one general contract, it shall not be necessary to file a separate lien upon each lot for the materials furnished in the erection of such improvements.”

Plaintiff’s evidence fails to show that it met the requirements of either statute.

The general statute requires that there be a contract between plaintiff and the lot owner, or that there be a contract between plaintiff and the lot owner’s contractor. Plaintiff’s evidence failed to show it had a contract with any of the lot owners. Nor did plaintiff’s evidence show that there was a contract between its customer, Woodland Development Corporation, and any of the nlot owners; in other words, Woodland was not shown to be the lot owners’ contractor so as to enable Woodland to bind them in purchasing materials from the plaintiff. As noted earlier, plaintiff’s petition did not even allege one of these two necessary contractual relationships.

Furthermore, plaintiff failed to meet the requirement of the contiguous lots statute that the improvements be “erected under one general contract.” Plaintiff pleaded and proved only that it furnished materials to Woodland Development Corporation “under one continuous arrangement.” Plaintiff neither pleaded nor proved one general contract — or, for that matter, any contract at all — between itself and the lot owners or between Woodland and the lot owners.

Since plaintiff’s evidence failed to show compliance with either statute, it is doubly precluded from a mechanic’s lien on the 23 lots.

The briefs argue four other defenses: there was no substantial evidence that plaintiff’s materials went into the homes on any of the 23 lots; the lots were not contiguous; plaintiff had waived its lien on 13 of the 23 lots; and the contiguous lots statute applies only to single ownership, not multiple ownership. Because plaintiff’s case failed for want of compliance with the two cited lien statutes, we need not rule on these other defenses.

The judgment denied plaintiff’s prayer for a money judgment for its account against its customer, Woodland Development Corporation. The evidence may well have warranted that relief; however, the plaintiff s after-trial motion and its brief challenge only the denial of its claim to a lien, not the denial of a money judgment against Woodland. We consider that issue abandoned. Civil Rule 83.05(e), V.A.M.R.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, j'udgment is affirmed.

ANDERSON, P. J., WOLFE, J., and THEODORE McMILLIAN, Special Judge, concur.


author: HOGAN, Judge.

text:
    W. S. YATES and Clara Yates, Plaintiffs-Respondents, v. WHITE RIVER VALLEY ELECTRIC COOPERATIVE, Inc., Defendant-Appellant.
    No. 8617.
    Springfield Court of Appeals. Missouri.
    April 10, 1967.

      Douglas Mahnkey, Forsyth, for defendant-appellant.
    Jerry L. Redfern, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, A. H. Blunk, Forsyth, for plaintiffs-respondents.
   HOGAN, Judge.

This case involves an account dispute between the plaintiffs and the defendant, which is a Rural Electric Co-operative organized under the provisions of Chapter 394, RSMoC^). On January 20, 1965, the defendant discontinued plaintiffs’ service for non-payment of charges. Plaintiffs thereupon brought this action for a mandatory injunction to restore service and to recover damages for the wrongful discontinuance of service. The count for an injunction was abandoned, but the action for damages was tried to the court without a jury, as provided by Rule 73.01. The trial court found for the plaintiffs in the amount of $500.00, and the defendant has appealed.

A very brief statement of the facts will be sufficient to show the nature of the case and the issues involved. As indicated, the defendant is a Rural Electric Co-operative engaged in the sale and distribution of electric energy. It operates in a number of southern Missouri counties, including Taney County, where the plaintiffs’ property is located. One of the co-operative’s bylaws relative to meter readings and collections is that “if any consumer has a delinquent account and is receiving service through an account carried in another name, their service is to be terminated unless the delinquent account is paid.” These bylaws also provide that the acceptance of an application [for membership] by the cooperative shall constitute a contract between the consumer and the co-operative, and provide that all new members shall be issued a letter explaining the regulations concerning payment of the monthly bills and meter readings.

The plaintiffs’ property consisted of a residence and a business. The nature of the business is not clearly shown, but the pleadings indicate that it is a restaurant and beer tavern. From 1947 until the time service was discontinued on January 20, 1965, possibly with one interruption, the premises were served as a single unit through a single meter, and there is no question in this case involving service at several locations.

The plaintiffs never became members of the co-operative, though they had received service from the defendant since 1947. For reasons which do not fully appear in the record, the property involved had been served and billed in the name “J. S. Yates & Son,” even though the “son” was not plaintiff W. S. Yates, but his brother, and Mr. J. S. Yates died in 1951. The questions put by defendant’s counsel to plaintiff Clara Yates on cross-examination suggest that plaintiffs had never become members because they were unwilling to make a proper application and tender a deposit. Mr. and Mrs. Yates claim they had made a proper application but that membership had been refused by the defendant. Mr. Spoedt, who said he was defendant’s general manager, stated that “we have no record he [Yates] was willing to pay a membership fee and have the account set up in his own name, none whatsoever.” Mrs. Yates testified quite positively that she had attempted on several occasions to obtain membership in the co-operative but that it had been refused, and she also testified that she had never been furnished with a copy of the defendant’s bylaws or its rules pertaining to meter readings and collections prior to the time service was discontinued.

Some time in April 1964, the Yates property was leased to a Mrs. Monty Pope. Mrs. Pope did not testify. Mrs. Yates stated that Mrs. Pope occupied the premises “from April 14 or 24 until November,” and that she re-entered the premises in November. Mr. Yates testified that at the beginning of Mrs. Pope’s term “I went down myself to R.E.A.” and “ * * * told them I would not even be around, that Monty Pope had leased the place and that they would bill her and collect the money from her.” He had spoken with a Miss Johnson, later identified as an assistant cashier, and “she said they would take care of it.” Being asked if he had not been told by defendant’s employees that the “membership” could not be transferred or put in Mrs. Pope’s name, Mr. Yates repeated, “I told them she had leased it and she would pay the bill and to collect the bill from her.” Miss Johnson recalled the conversation somewhat differently, testifying that “I told her [Mrs. Pope] that if she wanted an account in her name she would need to put up a deposit and we would change it to her name and she should turn in a reading on the meter and in her case, since she would be classified as a renter, she would have to put up a $10 deposit.” According to Miss Johnson, Mr. Yates had said to “leave the account in his name but he wanted Mrs. Pope to be billed * * Miss Johnson had then made what she called an “address change.” In any event, the account remained in the name J. S. Yates & Son but was mailed “c/o Monty Pope, Reeds Spring, Mo.”

There seems to be no question that the account involved, that is, the one carried in the name of J. S. Yates & Son, c/o Monty Pope, fell in arrears between September 25, 1964, and November 3, 1964, and that some amount was due the defendant when service was discontinued. The baffling aspect of the case, and the matter upon which the merits of the action turn, is whose arrearage was involved. We shall discuss this matter further in the course of the opinion, but it is sufficient for the purpose of this background statement to say that some amount was owed defendant on January 20, 1965, when plaintiffs’ service was cut off and their meter was removed. From what we have recited, it will be seen that the general subject or topic involved here is defendant’s right in the given circumstances to cut off service to enforce collection of an account in arrears.

Upon receipt of the appellant’s brief, the respondents filed a written motion to dismiss the appeal or affirm the judgment pursuant to Rules 83.09 and 83.11, upon the ground that the appellant’s brief did not meet the requirements of Rule 83.05, which sets out the requirements of form and content for appellate briefs. Specifically, the respondents contend that the appellant’s brief does not comply with the requirements of Rule 83.05(a) (3) and Rule 83.05(e), but in a broader sense the respondents’ complaint, as reiterated and expanded in their brief, is that the appellant’s brief is not sufficient for them to prepare an effective response because they are unable to determine the specific errors alleged. The appellant made no response to the written motion to dismiss, made no offer to supplement its original brief or make it more specific, and made no request for any modification or suspension of the rules. The cause was submitted without argument.

It is unnecessary to discourse at length on the proper form and content of an appellate brief; this subject has been-dealt with effectively and at length elsewhere. See Ambrose v. M.F.A. Cooperative Ass’n. of St. Elizabeth, Mo., 266 S.W. 2d 647; Stone, Effective Appellate Briefs, 15 Journal Mo.Bar 80 (1959); Dew, Manual of Appellate Practice and Procedure in Missouri, 3 U.Kan.City L.Rev. 1 (1958). The purposes of the provisions of Rule 83.05(a) (3) and Rule 83.05(e) quoted marginally are: (1) to give the appellate court a short, concise summary of what the appellant claims the trial court did wrong, and why he claims it was wrong, and (2) to inform respondent’s counsel just what the appellant’s contentions really are and what he is required to answer. Reifsteck v. Miller, Mo., 369 S.W.2d 229, 235-236 [8, 9]; Domijan v. Harp, Mo., 340 S.W.2d 728,” 731-732 [1-3]. Of course, technical perfection is not necessary; if the appellant’s specification of his points of error is sufficient to enable the respondent to identify the issues presented and to answer the appellant’s contentions, and is sufficient to enable the court to determine, with reasonable certainty and effort, what the issues on appeal are and what the appellant’s position with reference thereto is, then the purposes of Rule 83.05(a) (3) and Rule 83.05(e) have been served. However, as Rule 83.05(e) specifically states, and as the case law has run for many years, the mere assertion of abstract principles of law, without showing how they are related to the trial court’s action, is not a compliance with the rule. Magenheim v. Board of Education, Mo., 340 S.W.2d 619, 621 [3]; Jacobs v. Stone, Mo., 299 S.W.2d 438, 440; Arnold v. Reorganized School District No. 3, Mo., 289 S.W.2d 90, 92-93; Beeler v. Board of Adjustment of Joplin, Mo.App., 298 S.W.2d 481, 483 [2].

In this case the appellant’s “Points Relied On” consist of five abstract statements of law, accompanied by citations of authority. The “Argument” part of the brief consists of a repetition of those abstractions, with some quotation of the language from the cases cited. No attempt is made to correlate the statements of principle with the facts of the case; indeed, no reference is made to the facts in the printed argument, nor is any effort made to advise this court or the respondents in what way the trial court incorrectly applied the law and the facts in finding .for the respondents. True, this is a court-tried case which we review de novo on both the facts and the law, Rule 73.01(d), but even so the burden is still on the appellant to demonstrate error, and we perform those functions only in respect to the specific matters urged by the appealing party. Schlanger v. Simon, Mo., 339 S.W.2d 825, 828, 831 [1] [8]. See Pfotenhauer v. Ridgway, 307 Mo. 529, 534,271 S.W. 50, 51 [5]. Nor have we a situation comparable to McQuate v. White, Mo., 389 S.W.2d 206, 209-210 [1], and cases there cited, in which a “single obvious question” is presented. Some of the abstract principles which the appellant seems to rely on appear to be of doubtful application, though of course one cannot be sure precisely what appellant’s position is. The appellant says, for example, that the respondents failed to abide by the rules imposed by the co-operative. Granting for the sake of argument that a member of a co-operative is bound by its reasonable bylaws and rules, because application for membership and acceptance thereof constitute a contract between a co-operative and the member, King v. Farmers Electric Coop., 56 N.M. 552, 246 P.2d 1041, 1044 — 1045 [1,2], the appellant does not undertake to demonstrate why these rules should apply to the respondents, who never became members of the co-operative and who testified they had not seen appellant’s bylaws and rules before service was discontinued. Further and more important, the appellant has failed to demonstrate, by reference to specific facts, the application of the primary principle upon which it seems to rely, specifically that a supplier of utilities services may enforce the payment of delinquent accounts by discontinuing service. It seems well established that, subject to certain exceptions, a public utility company may adopt and enforce, as a reasonable regulation for the conduct of its business, a rule that service will be discontinued because of default in payment. However, in the absence of statutory or contractual authority, the company ordinarily has no right to cut off the customer’s supply of gas or electricity for non-payment of arrears due from another occupant or owner. Anno., 112 A.L.R. 237, Sections I and III, pp. 237-241, 241-243 (1938); 29 C.J.S. Electricity § 25, pp. 990-991. The most superficial examination of this record would show that the principal live issue upon trial was whether the delinquency involved was properly chargeable to the plaintiffs or to their tenant, and there was evidence pro and con on that point. Possibly the trial court misconstrued the facts or erroneously applied the law to the facts in some respect, but in the absence of a specific allegation of error correlating the law and the facts in some way, we cannot determine whether appellant contends it was the landlord’s or the tenant’s arrearage which was involved, or why it claims the trial court erred in holding — in effect — that it could not enforce collection of the delinquency by cutting off service. This, we may add, appears to be the determinative issue on this appeal. We would make it quite clear that we do not wish to belittle the merits of the appellant’s case, nor do we rule that its position is untenable in any view of the law. We have called attention to some of the questions which appear to be involved only to illustrate our view that in this instance the appellant has failed to point out distinctly the alleged errors of the trial court, and to make known to us and to the respondents what the essential merits of the appeal are. As indicated, the appellant has not undertaken to show any good cause or reason why the interests of justice require a suspension or modification of the rules. In such circumstances, we cannot, in fairness to the respondents, become an advocate for the appellant and “ * * * search the evidence in an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.” Schlanger v. Simon, supra, 339 S.W.2d at 828 [3]. The respondents’ motion to dismiss is sustained, and the appeal is dismissed.

STONE, P. J., and TITUS, J., concur.

      . All references to statutes and rules are to this revision, V.A.M.S. and V.A.M.R.

      . Which requires that the appellant state his “Points Relied On” so as to “ * * * show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous * * *»»

      . Which further provides that “[T]he points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.”


author: DOERNER, Commissioner.

text:
    Jerry DROWN, Plaintiff-Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    No. 32538.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied April 25, 1967.
    Application to Transfer Denied June 12, 1967.
    Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for defendant-appellant.
    Gray & Sommers, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff, a switchman employed by the Wabash Railroad Company, was struck by an engine owned and operated by the Missouri-Kansas-Texas Railroad Company, (referred to as the Katy by the witnesses) and brought this action for personal injuries against both carriers. Trial to a jury resulted in a verdict against the plaintiff and in favor of the Wabash, and in favor of plaintiff and against the Katy for $12,500. From the ensuing judgment the Katy appealed.

No question is raised by the Katy regarding its negligence. What it asserts, as its initial point, is that the plaintiff was guilty of contributory negligence as a matter of law. The burden to prove such negligence on the part of plaintiff was, of course, on the defendant, and the rule is that the “ * * * proof of plaintiff’s negligence must appear from evidence adduced by him or from evidence which he concedes to be true or from binding documentary evidence, or by proof of facts and circumstances by defendant which leave room for no other reasonable inference, or from a combination of them, in order that a court correctly may declare plaintiff contributorily negligent as a matter of law. * * * ” Pipes v. Missouri Pac. R. Co., Mo., 338 S.W.2d 30, 33. Reviewing the record in accordance with that rule, the plaintiff’s evidence was that in the area of Mo-berly, Missouri, where the accident occurred, there were three sets of tracks involved in the casualty. All three paralleled each other and ran in a north-south direction. Westernmost was the Wabash main line, east of it the Katy transfer track, and to the east of it the Katy main line. A public street, named Whitman, crossed all three tracks at a right angle. There was a connection between the Wabash main line and the Katy transfer track, called the crossover track. It began at a switch on the Wabash main line located an unstated distance south of Whitman Street and ran in a southeastwardly direction ■ for about 300 feet, according to the plaintiff, to a switch on the Katy transfer track. Plaintiff placed the transfer switch, which was the scene of the accident, as approximately 280 or 320 feet south of Whitman Street.

A number of cars were spotted on the transfer track south of Whitman Street. Plaintiff did not testify as to the number of cars and stated that he could not give any idea as to the distance between the south end of such cars and the transfer switch. W. C. Durbin, plaintiff’s foreman, whose deposition was read in evidence by plaintiff, gave no estimate of the distance in feet, but said that the south end of the cars was approximately straight east of the switch stand on the Wabash main line. Henry A. Oswald, the fireman on the Katy engine which struck plaintiff, whose deposition was also read in evidence by plaintiff, testified that there were six cars spotted on the transfer track south of Whitman, and estimated the distance between the south end of such cars and the switch on the transfer track as 250 feet.

At about 9:00 A.M. on December 12, 1962, the Wabash engine on which plaintiff was working as a pinpuller began an operation by which it was intended that two cars of coal would be transferred from the Wabash to the Katy and be coupled on to the south end of the cars spotted on the Katy’s transfer track. The weather was clear but cold, the temperature being 10° below zero, and there was some snow on the ground which had fallen during the preceding night. Plaintiff was wearing a hat, and a parka with a hood that covered the top of his head and his ears but left his forehead and face exposed. The operation began in the yards north of Whitman Street, with the Wabash engine backing southwardly on the Wabash main line, pulling the coal cars. As it passed Whitman Street plaintiff, riding on the southeast corner of the engine, looked to the east and saw the Katy engine standing still on a Katy auxiliary track east of the Katy main line. Its crew, he testified, were not on the engine but were standing in the area between Whitman Street and the sidewalk. As plaintiff’s engine neared the switch on the Wabash main line plaintiff signaled his engineer to stop and stepped off, lined the switch so that the engine could enter the crossover track, and then signaled the engineer to start up. When it moved up to him he stepped up onto the ladder at the southeast corner of the engine, which proceeded onto the crossover, moving in a southeastwardly direction.

Plaintiff testified that when his engine had proceeded slightly more than halfway through the 300 feet crossover track he turned to his left and looked to the north. He stated at one point that he saw the Katy transfer track and “a small portion” of the Katy main line, but that he couldn’t see all of the Katy main line up to Whitman Street because the cars on the transfer track blocked his vision. At another point, he testified that “When I saw the main line track, I could see all the way up. I seen cars on the Katy transfer, and I could not see Whitman Street.” Plaintiff testified that thereafter he “probably” looked out of the corner of his eye but conceded that “ * * * I never turned directly around to look again that I can remember.”

The switch stand which controlled the switch where the crossover connected with the transfer track was located on the west side of the track. The switch was already lined so that the Wabash engine and the coal cars could proceed onto the transfer track without stopping. The movement intended was that they would drag past the transfer switch, which plaintiff would then throw, so that the cars could be. pushed northwardly on the transfer track and coupled onto the cars spotted thereon. Plaintiff testified that as the engine, proceeding about 5 to 7 miles per hour, approached the transfer switch he gave the engineer an easy sign, to slow the movement of the train down, and stepped off with his left foot. He stated on direct examination that he “took several steps; two or three, something like that,” in a southeastwardly direction, to get clear of the engine, and that as he was turning around to his right he “seen a movement out of my right eye. I turned my head and the train hit me.” On cross-examination he stated that as he stepped off the engine and took the steps on the ground he was facing in a southeastwardly direction. Asked whether his steps took him over between the two rails of the Katy main line he answered: “I think that I stepped over them, sir. I am not certain but I think that I did.” He admitted that when he got turned around the Katy engine was “just right on top” of him, that he raised up his hands to try to push away, and that somehow he got himself out from between the two rails of the Katy main line so that he was between the Katy main line and the transfer track when he was struck.

Oswald, the Katy fireman whose deposition plaintiff read, testified that as the Katy engine was backing southwardly on the Katy main line he saw the Wabash train moving southeastwardly on the crossover, then at a point about 80 feet from the transfer switch; that he did not see plaintiff riding on the Wabash engine, and that he first saw him when plaintiff stepped off at the transfer switch. At that moment, according to Oswald, the Katy engine was only 40 feet from plaintiff, and was traveling at 10 miles per hour. He stated that plaintiff stepped southeastwardly and that he called to his engineer to “big hole” it. Durbin, the plaintiff’s foreman, testified in his deposition that he got off the Wabash engine with plaintiff at the switch on the Wabash main line; but that instead of getting back on as the engine moved through the crossover he walked straight east to the south end of the cars spotted on the transfer track. He testified that he didn’t observe the Katy engine until it went past him as he was opening the knuckle on the end of the cars on the transfer track to make the coupling easier. At that time, according to Durbin, the Wabash engine was close to (“right at”) the transfer switch but plaintiff had not yet dropped off of the Wabash engine. The Katy engine, he said, was going 20 to 25 miles an hour. His description of what he then observed was: “ * * Well, I just observed that about the time the (Katy) engine went by me Jerry had stepped off and he had turned around and put his hands like that and that is all I could see; when I saw his hands go up, I turned my head.’ ” He turned his head, he stated, because he didn’t want to see plaintiff get hit.

No plat of the area was referred to or introduced, and there is a paucity of information regarding various distances. For example, no estimate was given by any witness of the distance between the Katy main line and the transfer track, or, for that matter, between the transfer track and the Wabash main line. The only reference to the former was in Oswald’s deposition, in which when asked the distance between the side of an engine on the Katy main line as it went by cars on the transfer track, he answered, “ T am going to make a guess of two and a half foot.’ ” No testimony was given as to any overhang of an engine or of freight cars, although the photographs introduced into evidence indicate that both have some. While a photograph of the scene of the accident is in evidence, showing plaintiff standing between the west rail of the Katy main line and the east rail of the transfer track, it is obvious that the camera was some distance away, and because of the distortion which occurs when a picture is taken of railroad tracks running towards the horizon, it is difficult to determine with any degree of accuracy the distance between such rails. Taking judicial notice that the standard gauge of railroad track is 4 feet 8½ inches, West v. St. Louis-San Francisco Ry. Co., Mo., 295 S.W.2d 48, and using that as a basis of comparison, the photograph appears to indicate that the distance was from 6 to 8 feet.

Defendant bases its argument that plaintiff was contributorily negligent as a matter of law upon the admitted fact that plaintiff did not look to the north before stepping off of his engine and upon its main line, when if he had looked he could have seen its engine approaching in plain view, not more than 40 feet away.

A railroad track is itself a signal or warning of danger. Hence it is a general proposition of railroad law — particularly so in crossing cases — that before one goes upon a track he must look and listen for approaching trains, and that if he fails to look and listen when to have done so would have enabled him to have seen or heard the train in time to have avoided being injured by it, then he is to be adjudged guilty of contributory negligence as a matter of law. Pipes v. Missouri Pac. R. Co., Mo., 338 S.W.2d 30; Willig v. Chicago, B. & Q. R. Co., 345 Mo. 705, 137 S.W.2d 430; Schmidt v. Missouri Pac. R. Co., 191 Mo. 215, 90 S.W. 136, 3 L.R.A.,N.S., 196. From an early date in our judicial history a similar doctrine was applied to section hands, switchmen and other employees working on tracks or in and about railroad yards or cars, for it was held that when going on or near tracks they were under the duty to look out for themselves, in the absence of any rule, custom or assurance requiring that a warning be given them. Goodwin v. Missouri Pac. R. Co., 335 Mo. 398, 72 S.W.2d 988; Van Dyke v. Missouri Pac. R. Co., 230 Mo. 259, 130 S.W. 1; Loring v. Kansas City, Ft. S. & M. R. Co., 128 Mo. 349, 31 S.W. 6. That doctrine was modified to some extent, however, in Willig v. Chicago, B. & Q. R. Co., 345 Mo. 705, 137 S.W.2d 430, in which the Supreme Court quoted and adopted the opinion of this court. Willig v. Chicago, B. & Q. R. Co., Mo.App., 121 S.W.2d 204. In that case Willig, an employee of a construction company engaged in building an overpass at a place where a highway crossed the railroad, was fatally injured when he stepped upon a railroad track without looking. The undisputed evidence was that the train which struck him was then in plain view, 400 feet away, and traveling at about 40 miles an hour. But it was shown that during the entire period of construction of the overpass no trains were regularly scheduled to run during the forenoon, (the accident occurred at 9:00 A.M.), and that the only scheduled trains passed in the afternoon. Of even greater importance, it was also shown that when any special trains were scheduled to pass the point the defendant’s section foreman always notified the construction company’s superintendent, and that on the very day in question, at about 7:00 A.M., the section foreman informed the construction company’s superintendent that there would be a couple of special trains through around noon, which information the superintendent passed on to his men, including Willig, sometime between 7:30 and 8:00 A.M. Citing only a passage from 52 C.J. 680 as its authority, and emphasizing the undisputed fact that Willig had been informed that no special train would pass, upon which he was entitled to rely, the court stated that a railroad employee was not in all events to be adjudged guilty of contributory negligence for failing to look, but that, “ * * * whether it is to be so regarded must be determined by all the facts and circumstances of the particular case.” (137 S.W.2d 436). And it held that under the facts there prevailing the issue of Willig’s contributory negligence was one upon which the minds of reasonable men might differ, and therefore a question for the jury. In this respect the Willig case appears to accord with certain intimations in the earlier case of McQuitty v. Kansas City Southern R. Co., 196 Mo.App. 450, 194 S.W. 888.

It is apparent that the salient facts which determined the result in the Willig case was his knowledge that no regular trains were scheduled to run at the time he stepped upon the track without looking, and the railroad company’s positive assurance that no special train would pass until a much later hour. It was this factor of Willig’s knowledge which the Supreme Court stated distinguished that case from Tanner v. Missouri Pac. R. Co., 161 Mo. 497, 61 S.W. 826. There the westbound train which struck Tanner, No. 10, was a scheduled train, as the plaintiff knew, and was on time. Tanner had heard that an eastbound train, No. 9, which ordinarily arrived at the depot 7 minutes before No. 10, was running on time. When it arrived he assumed it was on time and stood on No. 10’s track watching passengers disembark from No. 9, with his back to the east and without looking or listening for No. 10. The fact was that No. 9 was late, and No. 10 arrived shortly and struck plaintiff. The Supreme Court held that in the light of Tanner’s knowledge that No. 10 was due to arrive on the track on which he was standing, he was guilty of contributory negligence as a matter of law in failing to look or listen.

The determining factor in both the Willig and the Tanner cases was that of knowledge of the respective plaintiffs regarding the traffic which would or would not occur on the tracks upon which they stepped or stood without looking or listening. That feature of the case was not developed in Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787, 49 S.Ct. 490, 73 L.Ed. 957, in which the facts are strikingly similar to those in the instant case. There the parallel main line tracks involved, running north and south, had' a clearance of 7 feet 8(4 inches fronk rail to rail. Driggers, a member of a switching crew, was working on an engine engaged in transferring some cars to another railroad. For that purpose his engine moved northwardly on the easterly set of tracks, and after a switch was thrown, onto a spur which ran in a northeastwardly direction. After cutting out a car it returned back down the spur, towards the switch, with the engine facing south or southwesterly. Driggers was standing on the right hand footboard, facing nearly south. Just as his engine reached the switch, without looking to the north, he stepped off into the space between the two main lines and swung or was thrown against the pilot sill of a train traveling southwardly on the westernmost track. As plaintiff points out, the case was controlled by the Federal Employers Liability Act, and recovery was denied because the court held that no negligence on the part of the defendant was shown. But the court also held, of particular significance to us, that Driggers was negligent in failing to look to the north before he stepped off his engine, and that his own negligence was the sole cause of the accident which resulted in his death (279 U.S. 792, 49 S.Ct. 49):

“Under these circumstances, it is clear that Driggers, by his own negligence, as the sole and direct cause of the accident, brought on his own death, and that there is no ground upon which the liability of the Railroad Company may be predicated.”

There is a marked difference between the facts in the Willig case and those in the present case. In Willig the plaintiff knew that no regular train was scheduled to pass the place when he stepped upon the track, and had received definite assurance from the defendant that no special train would operate thereon until much later in the day. While the extent of the present plaintiff’s knowledge of traffic on the track was not shown, he certainly had not been assured that none would occur. As he passed Whitman Street he had seen the Katy engine which subsequently struck him, and while it was then stopped on an auxiliary track, he did not know what it was going to do in the next five seconds or five minutes, as he admitted on cross-examination. Furthermore, the track upon which he stepped without looking was the Katy’s main line, and within the confines of the railroad yards where more traffic would be likely to occur, as plaintiff was bound to know, for during the three months he had been employed by the Wabash he had engaged in ■switching operations in that vicinity on pri- or occasions. It is clear from plaintiff’s own testimony and that of his witnesses that plaintiff stepped upon the Katy main line without looking to the north at a time when the Katy’s engine was within approximately 40 feet of him, and that if he had looked to the north before stepping off of his engine he could have seen the approaching engine, refrained from stepping off or at least not stepped upon the Katy’s track, and thereby have avoided his injury. Under those circumstances we are of the opinion that plaintiff must be adjudged guilty of contributory negligence as a matter of law. Atlantic Coast Line R. Co. v. Driggers, supra; Van Dyke v. Missouri Pac. R. Co., supra; Loring v. Kansas City, Ft. S. & M. R. Co., supra.

For that reason the judgment in favor of plaintiff and against the defendant Missouri-Kansas-Texas Railroad Company is reversed.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed.

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