text:
    In the Matter of the ESTATE of Andrew Francis HOWE, Deceased. Loyd Francis HOWE, Petitioner, Appellant, v. Ruth Irene ETCHISON and Russell Howe, Respondents.
    No. 31541.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 22, 1964.
    Eugene V. Krell, St. Louis, for petitioner-appellant.
    John Grossman, St. Louis, for respondents.
    A. Lowell Morris, St. Louis, Co-Executor of the Estate of Andrew Francis Howe, Deceased, and Atty. of Record for the St. Louis Union Trust Co., Co-Executors.
    Max W. Softer, St. Louis, for Louise M. Howe.
   BRADY, Commissioner.

This is an action to construe a will. The parties will be referred to by their designation in the trial court. The decision of the probate court, where this action first began, was in favor of the defendants. This decision was affirmed by the Circuit Court of St. Louis County and from that affirmance the plaintiff appeals.

Article I of the will deals with the appointment of trustees and executors. Article IV deals with the power of the trustees. The provisions of the will pertinent to this inquiry are as follows: “ARTICLE II: I give all of my interest in any home I may leave in Florida, together with the lot of ground on which the home is located, with all other improvements thereon and all my personal effects, including clothing, jewelry, household goods and automobiles, to my wife JESSIE, but if she does not survive me, then I give my interest in my home in Florida, lot of ground and improvements and all other articles mentioned in this Article II, to my daughter, RUTH IRENE ETCHISON, and to my son, RUSSELL RAYMOND HOWE, or to the survivor of them, should either of them fail to survive me.

"ARTICLE III: One-half (¡/2) of all the rest, residue and remainder of my estate of whatsoever kind, real and personal, and wherever situated at the time of my death, I give, devise and bequeath to the Trustees herein named for the following uses and purposes: ‘To hold, manage, invest, re-invest and to pay all the income therefrom in installments not less often than quarterly in each year, to my wife, JESSIE, for and during the term of her natural life, and, upon her death, to pay or otherwise dispose of the corpus of this trust to such persons, outright or in trust, and in such manner and proportions as she by her Last Will may appoint. Should she fail to appoint as herein empowered, then upon her death I direct my Trustees to pay over the entire balance of this trust in equal shares unto my son, RUSSELL, and my daughter, RUTH, or unto the survivor of them, the descendants or a deceased child, however, to receive the parent’s share per stirpes and not per capita. Should both my son, RUSSELL, and my daughter, • RUTH, predecease my wife, JESSIE, leaving no descendants surviving, and should my wife, JESSIE, fail to appoint as herein empowered, then I direct my Trustees to pay over the corpus of this trust outright and free of trust to the Shriners Hospital for Crippled Children now located in St. Louis, Missouri.’ * * *

“ARTICLE V: If my wife, JESSIE, shall die simultaneously with me or under such circumstances as to render it difficult or impossible to determine who predeceased the other, I hereby declare that my wife, JESSIE, shall be deemed to have survived me and that this Will and all of its provi•sions shall be construed upon that assumption and basis. If my wife, JESSIE, and my children, RUTH IRENE ETCHISON, LLOYD FRANCIS HOWE and RUSSELL RAYMOND HOWE, shall die simultaneously with me or under such circumstances as to render it difficult or impossible to determine who predeceased the other, I hereby declare that it shall be deemed that I shall have survived my wife, JESSIE, and my children, RUTH IRENE ETCHISON, LLOYD FRANCIS HOWE and RUSSELL RAYMOND HOWE, and that this Will and all of its provisions shall be construed upon that assumption and basis.

"ARTICLE VI: I give and bequeath to each of my beloved children, RUTH IRENE ETCHISON, LLOYD FRANCIS HOWE and RUSSELL RAYMOND HOWE, the sum of One ($1.00) Dollar, subject to other provisions herein provided.

“ARTICLE VII: I have heretofore made certain gifts to my son, LLOYD FRANCIS HOWE, to my daughter, RUTH IRENE ETCHISON, and my son, RUSSELL RAYMOND HOWE, all of the same being intended by me as unconditional gifts, and I direct that the same shall not be in any respect deemed as legal advancements to my daughter, RUTH IRENE ETCHISON, or to my sons, LLOYD FRANCIS HOWE and RUSSELL RAYMOND HOWE, nor be taken into account in settling my estate, or in the distribution of any trust created herein or the income thereof.

"ARTICLE VIII: The remaining one-half Q/2) of my residuary estate I give, bequeath and devise the sum of Thirty One Thousand ($31,000.00) Dollars to my son, RUSSELL RAYMOND HOWE, and the sum of Twenty Six Thousand Two Hundred ($26,200.00) Dollars to my daughter, RUTH IRENE ETCHISON, and the remainder of said residuary estate, after said payments, shall be divided in equal shares by my sons, RUSSELL RAYMOND HOWE, LLOYD FRANCIS HOWE, and my daughter, RUTH IRENE ETCHI-SON, or unto the survivor of them, the descendants of any of said deceased children, however, to receive the parent’s share per stirpes and not per capita.

“Should both my sons, LLOYD FRANCIS HOWE and RUSSELL RAYMOND HOWE, and my daughter, RUTH IRENE ETCHISON, predecease me and leave no descendants surviving, then this onq-half O/2) of my residuary estate shall pass to and be paid over, delivered and conveyed unto the Shriners Hospital for Crippled Children now located in St. Louis, Missouri.

“It is further my Will that all inheritance, transfer and other death taxes due and imposed upon and in connection with my estate or any part thereof or on any insurance on my life shall be paid out of this one-half (]4) of my residuary estate.”

The parties entered into a stipulation of fact. From this it appears that when the will was executed, the testator was married to his second wife, Jessie, who predeceased him. The testator later married his third wife, Louise, who is not mentioned in the will. Louise survived the testator and “elected to take against the will.” All of the parties are children born of the deceased’s first marriage. It further appears from the stipulation that “ * * * [t]he interest in real and personal property testator may have had in the State of Florida was conveyed away during the lifetime of Andrew Francis Howe, deceased, and after the death of his second wife, Jessie Blaine Howe, and inventory as filed in probate court of the County of St. Louis in the Estate of Andrew Francis Howe, deceased, lists ‘GOODS AND CHATTELS— None.’ ”

The trial court came to two conclusions-of law. It first found that the property mentioned in Article II had been disposed of during the lifetime of the testator so that the distributees take nothing. The trial court also found that Article III of the will “ * * * has not lapsed and is to be construed so that the property which passed thereunder be distributed in equal shares to RUSSELL RAYMOND HOWE and RUTH IRENE ETCHISON, the persons, entitled thereto in said Article at the death of Jessie Blaine Howe, had she survived the deceased, and then died failing to appoint as therein empowered.”

The plaintiff prayed the court to construe the will as follows: “ * * * passing the first half of the residuary by intestacy, and declaring that no trust was created nor was there manifest and specific provision for remainder over, for failure of beneficiary; that Federal estate taxes and Missouri inheritance taxes, if any, be paid out of the second half of the residuary after satisfaction of the elected share and statutory allowances of Louise M. Howe, surviving spouse, so long as satisfiable therefrom, and that what then remains distributable of the first half of the residuary shall be distributed in equal shares to Russell Raymond Howe, Ruth Irene Etchison and Loyd Francis Howe; and for such other and further orders as to this Court may seem meet, just and propery (sic).” While plaintiff does not so state, the effect of this argument would be a construction of the will totally voiding and ignoring the specific bequests to the defendants.

It is to be noted that while the petition recited that Article II was uncertain and conflicting, the prayer did not contain any specific reference thereto. In his first allegation of error plaintiff complains of the trial court’s action in construing Article II. Since it was agreed that the property in Florida had been disposed of during the testator’s lifetime, it is obvious the plaintiff cannot be aggrieved by the trial court’s ruling construing Article II. Moreover, there can be no doubt but that the trial court correctly ruled the point. “Ademption” is the act by which a specific legacy has become inoperative on account of the withdrawal or disappearance of the subject matter from the testator’s estate during his lifetime. Buder v. Stocke, 343 Mo. 506, 121 S.W.2d 852, [3]; 96 C.J.S. Wills § 1172. It follows that plaintiff’s contentions in this regard need not be ruled.

The appellant’s remaining allegation of error deals with the construction of Article III. In effect, although counsel does not use the phrase, he is contending for a partial intestacy. It is his position that, to quote from his brief, “ * * * the event which might vest anything in the contingent beneficiaries is failure of Jessie to ‘appoint as herein empowered.’ ” His argument then proceeds on the basis that since Jessie predeceased the testator, she cannot be held to have failed to exercise a power she never had. Accordingly, plaintiff concludes that the trust has failed and insists that failure is tantamount to failure or voidance of the bequest.

A will denotes a presumption against partial intestacy. Mercantile-Commerce Bank & Trust Co. v. Binowitz, Mo. App., 238 S.W.2d 893. It should also be noted that the deceased did not change his will after Jessie’s death or after his marriage to Louise, approximately one year and six months after the execution thereof. This also is a strong argument against partial intestacy. In Burnett v. McHaney, 347 Mo. 499, 148 S.W.2d 495,1. c. 497, the court held: “Let us direct our attention to the three contentions made by appellant Jones: First, that the testator died intestate as to all of his property except the specific legacies. Where there is a will there is a presumption against partial intestacy. This rule is not disputed so we need not cite authorities to support it. * * * In the case before us the testator lived a number of years after the death of his wife. He did not see fit to change his will. That, together with the presumption against partial intestacy, is a strong argument against appellant Jones’ contention. In addition to that, the language of clause 7 does not indicate that the testator intended it to be inoperative in case his wife predeceased him. Many wills are written which provide a life estate to the wife, or some other person, with remainder over to certain named legatees. That is a common practice. Unless a will provides in specific terms that such provisions shall not be operative in case the wife or life tenant dies before the testator, the remaindermen take upon the death of the testator, because the event upon which their fee was to vest has occurred. This has been the rule from the early English cases to the present time. See 69 C.J. p. 1054, § 2260 and p. 1058, § 2273, note 30. * * * ”

The plaintiff not only disregards the presumption against partial intestacy but ignores the plain and unequivocal language of Article III. It does not read that the provisions thereof shall not be operative in the event of Jessie’s death. Such a provision would mean that the testator contemplated the plaintiff would benefit. That he did not so intend is abundantly clear from the whole will. Neither the reasons for such intention on the part of the testator nor the fairness to the plaintiff of that intention is for this court to consider. This court cannot make a new will nor attempt to make what may seem a more equitable distribution. Mercantile-Commerce Bank & Trust Co. v. Binowitz, supra.

In 96 C.J.S. Wills § 1060, pp. 695-696, the following appears: “Where the event which terminates the trust occurs during the lifetime of the testator, the testamentary trust never comes into operation and the remainders accelerate and vest as of .the testator’s death. * * * ” (Citing Miller v. Kriner, Mo., 247 S.W.2d 757.) At § 1214, p. 1052 that same work recites: “ * * * Thus, where a life tenant dies before the testator, but the person entitled in remainder survives him, the death of the life tenant extinguishes only the life estate, and, as discussed infra § 1227, the re-mainderman is let into the immediate right to the gift as soon as the will takes effect. * * * ” And at § 1227, pages 1085-1086, the following appears: “Where a precedent estate lapses, is void, or for any reason fails, the remainderman takes at once, or on the testator’s death, as the case may be, and the heirs have no right of possession during the period for which the precedent estate, if effective, would have endured, unless the evident intention of the testator is that there shall be no acceleration, * * (Citing Miller v. Kriner, supra; and Burnett v. McHaney, supra.)

Miller v. Kriner, supra, is a case directly in point. At 1. c. 761 of 247 S.W.2d the court held: “Respondents contend that Albert’s death prior to the death of testatrix rendered the trust, upon its effective date, to-wit: the death of testatrix, an inactive, dry trust, and that under and by virtue of the Statute of Uses, VAMS and RSMo § 456.020, title to the property passed under the provisions of paragraph (d) of Item VIII.

“The great weight of authority is that when the trust created in Item VIII of Mrs. McFarland’s will for the benefit of Albert D. Morris failed by reason of his death prior to that of testatrix, then, in the absence of a manifestation of a contrary intent on the part of testatrix, the entire beneficial interest in the residue of her estate immediately vested under paragraph (d) of Item VIII. Restatement of the Law of Property, Vol. II, § 230, p. 953; Speed v. St. Louis M. B. Terminal Ry. Co., 163 Mo. 111, 63 S.W. 393; Burnett v. Mc-Haney, 347 Mo. 499, 148 S.W.2d 495; Elliott v. Brintlinger, 376 Ill. 147, 33 N.E.2d 199, 133 A.L.R. 1364, and Annotation at page 1367.”

The plaintiff also relies upon the action of Louise in electing to take her statutory rights. He argues that this action “ * * * has frustrated the general scheme of the will and thus of the testator, * * This fact, he urges, illustrates the trial court committed reversible error. This argument is difficult, if not impossible, to follow. Plaintiff ignores the fact that, in contemplation of law, the testator must be presumed to have known he could not defeat Louise’s statutory rights whether he mentioned her in his will or not. Having such knowledge and yet failing to change his will, the only fair presumption is that the testator intended his estate to be divided as provided in his will subj ect to such statutory rights as Louise might have. In Mercantile-Commerce Bank & Trust Co. v. Binowitz, supra, the court held that where provisions made in behalf of a widow must be disregarded, the intention of the testator as to the other provisions of the will must be carried out as nearly as possible. In that case at 1. c. 899 (238 S.W.2d 893) the court held: “Having had counsel in the preparation of this will, and in view of the presumption that every man knows the law, we must take it for granted that the testator knew that he could not take from his wife her common law right to renounce the will and take a child’s part of his estate, in which case all of his carefully laid plans for the devolution of his estate would be upset.”

In short, if we were to adopt the plaintiff’s argument, we would be ruling that a widow not mentioned in a will could totally defeat the testator’s intentions voiced in the will by electing to take under the statutes. A necessary corollary of such ruling would also be that even if a widow is mentioned in the will, if she elects to take under our statutes, she can void the will and disrupt the testator’s intentions. This we cannot condone. The election by Louise to take her statutory share cannot be held to prevent the vesting in defendants of their rights under Article III of the will.

There is no reversible error in the judgment of the trial court, and that judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

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

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


source: Caselaw Access Project

author: R. KENNETH ELLIOTT, Special Judge.

license: Public Domain

text:
    Conrad D. JENNINGS, (Plaintiff) Respondent, v. Ruth Constance JENNINGS, (Defendant) Appellant.
    No. 31587.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Charles A. Sheehan, House Springs, for appellant.
    Thurman, Nixon & Smith, John W. Thurman, Jeremiah Nixon, Hillsboro, for respondent.
   R. KENNETH ELLIOTT, Special Judge.

This appeal resulted from a judgment granting the plaintiff-husband a divorce and custody of the infant daughter.

The parties were married December 5, 1942, and lived together as husband and wife until the separation on July 29, 1962. A daughter was born to this marriage on July 18, 1958, approximately fifteen years and five months after the date of the marriage. On the date of separation plaintiff took the child with him, and filed his petition July 30, 1962.

Defendant filed answer and pleading denominated “Cross-Bill”, in which she prayed the court for a judgment of divorce against the plaintiff and for custody of the aforesaid infant child.

Plaintiff testified that the first difficulty with the marriage occurred some ten years before the trial, upon the occasion of a dinner party, at which affair one Johnny Bailey, a teacher of the high school, was a guest. After dinner, and a few drinks aft-erwards, Bailey started to go to the bathroom, and the defendant followed him in spite of plaintiff’s calling to her to come back. Plaintiff remained alone with other guests upstairs, and eventually the defendant came back.

Some time after the parties moved to House Springs, Missouri, they established a charge account at a local store and at the ■end of each month plaintiff would settle the bill. Plaintiff testified that defendant would run back and forth to the windows, look toward the store, and say, “Yeah, you old baldy, I can get somebody better than you !” Defendant also said at other times she could get somebody better than plaintiff any day she wanted to.

Defendant accused plaintiff of not mailing letters to her relatives for her, and constantly accused plaintiff of running around with other women.

It appeared that plaintiff in his capacity as a high school biology teacher also had the task of being ticket-taker at the basketball games and other duties around the school that required many nights away from home, and when plaintiff would come home from these occasions defendant would accuse plaintiff of running around with a girl friend, which accusation plaintiff denied.

Upon another occasion plaintiff was engaged at home in studying and preparing grades. Defendant started dropping china cups and saucers, one at a time, on the floor, breaking almost the entire set of china. Plaintiff admitted that defendant had been a clean housekeeper, but during the last two or three years she was not, which condition he attributed to the fact that she spent so much time chasing after the little girl that she didn’t have time to keep the house clean.

The testimony of plaintiff set forth that about the time the little girl was born he bought a new rug, and defendant would give the child cookies and milk and set her in front of the television and let the baby wet all over the rug, which condition became so acute that the plaintiff and a neighbor took the rug out to the garage and scrubbed it and let it air for two days, and replaced it in the home, whereupon the rug still smelled, after which it was necessary to throw it away. A new rug was purchased a year before the hearing, and plaintiff claims to be the. only one who ever vacuumed it. He claimed that the closets had not been cleaned in three years, the utility room was full of junk, and that defendant would let his shirts stack up until mildewed.

About three years before the separation plaintiff had a summer job at the Missouri Pacific Hospital. Required to arise about 5 :30 a. m., plaintiff testified that defendant would awaken him by spitting in his face, and upon a later repeat of this procedure in the process of' awakening, he swung and missed her, hit the wall and broke his finger, and that defendant always griped because she had to get him up to go to this early work, and because of her opposition he was tardy on four occasions and lost the job. Defendant’s excuse to plaintiff was that she did not want to awaken the child.

Plaintiff further claimed that defendant made sexual demands upon him at times when he had final examinations and report cards to put out or had to work late for a test the next day. At such times plaintiff testified that defendant would jump out of bed and inquire if he was coming to bed, and after his reminder to her that he was required to get the tests ready, she would state, “If I had a knife, I’d cut your throat. I’d kill you — bang-bang!”

Plaintiff testified that the child was never permitted on the floor to crawl, and never learned to crawl; that defendant was afraid the child might catch cold, get dirt on her hands, and that she was kept in a playpen until she was almost two years of age; that defendant constantly ran after the child and would take toys away from, her, being afraid that they might pinch her. Upon one occasion plaintiff brought the child a toy upon which the child cut her thumb, and the defendant accused plaintiff of buying the toy with the plan of cutting the child’s hand.

Plaintiff further testified that at the age of three the child could not put on her pants or socks; that defendant was overprotective of the child; fed her baby food until she was three years old; never permitted her to play with other children; that upon one occasion defendant requested plaintiff to take the child to the doctor because the child “must be crazy or something” since the child had played out in the yard in the hot sun for three hours.

Upon another occasion plaintiff was reading some stories to the child, lying on the child’s bed with her. Defendant came into the room and accused plaintiff, in front of the child, of trying to rape the child.

Defendant further refused to allow the child to have a birthday party when she was five, or to bake a cake, because defendant did not want little brats in the house.

While on the way back home on one occasion, the child wanted to stop by the little cousin’s house; and upon defendant’s refusal the child cried during the 54-mile drive home, pleading with her parents, and at one point threw her arm around the plaintiff’s neck and asked him, “What’s wrong with me ? Why can’t I play with other children ?” This precipitated the separation.

Charles Clements, the former teacher colleague of plaintiff in the House Springs school district, testified that plaintiff and the child came to live with them at the time of the separation for about one or two weeks, at which time he observed that the child could not go to the bathroom without aid or take a bath by herself, and that she wanted to eat nothing but sweets; that during that time there was some improvement, and that later he had an opportunity to observe the child and that she now goes to the bathroom alone and takes her own bath, and dresses herself.

Mrs. Carl Strieder testified that plaintiff and his daughter have been living in her home since the first of August following the separation and that when the child came to live in her house she was unable to go to the bathroom herself, unable to undress herself or dress herself and would eat nothing but sweets; and that after five months the child never asked for cookies or sweets except after meals, was able to dress herself and undress herself, go to the bathroom, and has learned to play with other children. The witness testified that the plaintiff washed and ironed the child’s clothes, and that the child waited for her father at the window each evening for him to return. Mrs. Strieder further testified that the child had an hysterical fear of having her hair washed when she came to live with her, but that now she has adjusted and loves to have her hair washed.

Evall Himmelman testified that he lived four doors from the parties’ house in House Springs, and that he observed defendant out in the yard with the child, and that defendant would never let the child out of the yard or allow her to play with anyone else.

Harry Carbe, who maintained a summer home near the residence of the parties, testified that on week-ends he observed that the little girl was never permitted to play with his grandchildren.

Defendant’s evidence was to the effect that she has been a housewife during her married life and that plaintiff would occasionally be gone from the home in the evenings, although she admitted that he engaged in extensive civic activity and that evening duties were required of him as a teacher.

Defendant-appellant charges plaintiff with drinking alcoholic beverages and staying out late hours. On cross-examination defendant testified she was trying to reconcile with the plaintiff since he left the home, and vacillated as to whether she wanted a divorce.

After the separation plaintiff brought the child back to visit the defendant some twenty-one or twenty-two times before the date of trial, December 27, 1962. On March 6, 1963, judgment was entered and defendant appealed.

Defendant claims that the trial court first erred in granting the husband a divorce because there was no evidence to show (a) misconduct of the defendant, and (b) plaintiff’s freedom from misconduct.

Most of the testimony of plaintiff relating to defendant’s acts was denied by the defendant, and plaintiff denied defendant’s accusations. The evidence being in such a state of confliction, we are constrained to pay great deference to the findings of the trial court, who was in a position to hear and view the witnesses. Mayor v. Mayor, Mo.App., 351 S.W.2d 810; Harwell v. Harwell, Mo.App., 355 S.W.2d 137.

Plaintiff’s evidence, if believed, establishes clearly that defendant’s conduct was such that it demonstrated a course of conduct amounting to a species of mental or physical cruelty. Defendant’s unfounded accusations and suspicions directed at plaintiff, and in some instances in front of the child, illustrate that type of action which justifies the trial court’s judgment.

We find that this same conflict in oral testimony applies to defendant’s accusations as to plaintiff’s misconduct of drinking and staying out late. This testimony was temporized by defendant’s own evidence admitting that plaintiff’s activities in civic affairs and extra-curricular duties as a teacher required him to be away from home many times in the evening. The drinking accusation against plaintiff rested solely in defendant’s testimony. We rule this point against defendant.

Defendant next complains of error in that the trial court refused to grant her judgment on her cross-bill for divorce. Obviously, this point is ruled by our ruling on the previous point, and defendant’s further complaint of error on the part of the trial court in not granting alimony to defendant is likewise resolved.

Defendant’s next assignment is that the trial court erred in awarding custody of the minor child to the husband. She argues that the child, being five years of age and a female, better belongs with her because the father improperly took the child from her home and has been required to place the child with baby sitters during the working day. Defendant further maintains that she has not been shown to have neglected her child.

We come now to the important task of examining the trial court’s decision in granting the custody of this female child exclusively to the husband. There being no absolute rule, we must resort to the facts in this particular case.

In Tootle v. Tootle, Mo.App., 329 S.W.2d 218, Judge Broaddus of the Kansas City Court of Appeals stated, most clearly and forcefully:

“There is no absolute rule by which it can be determined which of the two contesting parents is entitled to the custody of a child upon their separation, but each case must he judged on its own facts ‘and in determining where the custody of a child shall go, the acts and attitude of the parents toward each other, the causes leading to the divorce, their treatment of each other, and similar matters, are all material and admissible in evidence as bearing upon the question of the fitness of the respective parents to have the custody of their child.’ Meredith v. Krauthoff, 191 Mo.App. 149, loc. cit. 170, 177 S.W. 1112, loC cit. 1120. If anyone asserts that the question has not been a difficult one for the courts, let him but read the graphic language which appears in the opening paragraph of the much cited Krauthoff case. Usually the custody of children is awarded to the party who prevails in the divorce action. Wells v. Wells, Mo.App., 117 S.W.2d 700; Wilson v. Wilson, Mo.App., 260 S.W.2d 770, 776. Our courts have said that ‘all things being equal’, a child of tender years should be given into the custody of the mother. Keith v. Keith, Mo.App., 95 S.W.2d 669, 672. But the ‘guiding star’ which the courts must follow in determining the question of custody is the welfare and best interests of the child. There is an additional well settled rule ‘that the findings of the trial court in matters involving the custody of a minor child of divorced parents, while not binding upon the appellate court which must review the record for itself, are nevertheless not to be lightly disturbed, and will be deferred to unless the appellate court is firmly convinced that the welfare of the child requires some other disposition.’ Lutker v. Lutker, Mo.

App., 230 S.W.2d 177, 179.”

See Harwell v. Harwell, supra; Mayor v. Mayor, supra; and Ragan v. Ragan, Mo.App., 315 S.W.2d 142.

Under the facts of this case we cannot conclude that the best interests of the child would be served by any other disposition than that made by the trial court. Much of the evidence involving defendant’s misconduct was inextricably interlaced with facts directly involving the child and acts committed in the immediate presence of the child. We cannot but hold that many of defendant’s acts which gave grounds for divorce also directly and immediately affected the child’s welfare. Certainly, the evidence supports the finding that the father has demonstrated the willingness and ability to provide the stable and protective climate for the child’s development. The evidence shows that he voluntarily brought the child to visit the defendant some twenty-one or twenty-two times before the date of hearing, in a period of some five months.

The evidence shows the child’s progress from a condition of uncertainty to one of well-adjustment and balance. Under these facts, we cannot hold the trial court was not justified in awarding the child’s custody to the plaintiff.

Defendant’s remaining assignment preserves nothing for review, in that she complains the court erred in “admitting incompetent, irrelevant, and immaterial evidence” without specifying how this generalized allegation related to any action or ruling of the court, in violation of V.A. M.R. 83.05(e). Lane v. Nixon, Mo.App., 326 S.W.2d 418.

Accordingly, the trial court’s judgment is affirmed.

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

RUDDY, J., not participating.


author: DOERNER, Commissioner. PER CURIAM.

text:
    Erwin BAUM, Plaintiff-Respondent, v. Ralph ABEL, Defendant-Appellant.
    No. 31535.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Cook, Murphy, Lance & English, Milford T. English, Gerald J. Zafft, St. Louis, for defendant-appellant.
    Husch, Eppenberger, Donohue, Elson & Jones, Martin Schiff, Jr., St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This jury-waived case involves, in separate counts, two promissory notes, one of which is for $5500 and the other for $1440. Defendant admitted execution of the notes but alleged lack of consideration as an affirmative defense. Judgment below was for plaintiff for the principal amount of each note, together with interest thereon, and defendant appealed.

To sustain his burden plaintiff introduced the notes in evidence, and then called defendant to the stand as an adverse witness, under the provisions of Section 491.030, RSMo 1959, V.A.M.S. Defendant admitted that he had signed the notes, that no payment had ever been made on either one, and that by a letter he had promised to pay plaintiff as soon as he obtained some money. Plaintiff also developed from defendant that defendant had been a major stockholder, the president, and a co-managing officer of a since-defunct corporation named Spanco Steel Building & Supply Co. The remainder of plaintiff’s examination of defendant was devoted to matters involved in Counts 3 and 4 of his petition, dismissed by plaintiff at the close of his case, which are now immaterial.

Defendant was then nominally cross-examined by his own counsel. Under such interrogation defendant testified that when each of the notes was executed, some months apart, plaintiff gave him a check for the money loaned, which checks were made payable to him; that in the case of the $5500 note the check was for $5000, which he endorsed and deposited in Span-co’s bank account; and that in the case of the $1440 note he cashed the check and used the proceeds to defray the attendance of six representatives of Spanco, including himself, at the annual show of the National Association of Home Builders held in Chicago. Defendant further testified that he did not personally retain or use any of the money received on either loan; that all of the proceeds were used for Spanco’s corporate purposes; and that before each of the notes was executed he informed plaintiff that the money was to be used for the furtherance of the corporation.

Plaintiff did not take the stand, nor did he introduce any evidence controverting that given by defendant on cross-examination.

Defendant’s principal point here, as it was below, is lack of consideration because he did not retain or personally use the money loaned. In that connection defendant argues that since plaintiff called him to the stand, and since there was no evidence which controverted his testimony that he did not retain any of the money for his own use, plaintiff is bound by such testimony. It is undoubtedly the rule that a party is bound by the uncontradicted testimony of his adversary which he introduces. Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589; Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190. But the party is only hound, if at all, by his adversary’s testimony which he himself offers and vouches for as the truth. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353; Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549. When defendant was cross-examined by his counsel he became a witness in his own behalf, and whatever he may have said was in no way binding on plaintiff. Shepard v. Harris, Mo., 329 S.W.2d 1; Contestible v. Brookshire, Mo., 355 S.W.2d 36, cert. den., 371 U.S. 68, 83 S.Ct. 155, 9 L.Ed.2d 119.

Furthermore, defendant’s contention that plaintiff was bound by his testimony is beside the point. This for the reason that his testimony, even if it is accepted at full value, did not sustain his defense of lack of consideration. Defendant contends that he was an accommodation party, and that he is not liable on the notes because he did not retain his money loaned but turned it over to Spanco. Since plaintiff loaned and paid the money to defendant we seriously doubt that defendant was an accommodation party. Section 401.028, RSMo 1959, V.A.M.S. But if he was, the party accommodated was Spanco, defendant’s corporation, not the plaintiff. Had plaintiff paid the money directly to Spanco at defendant’s request defendant would nevertheless be liable on the notes. For under such circumstances the rule is that there is no necessity of a consideration moving to an accommodation party, where the consideration moves to the party accommodated. Schulte Transportation Co. v. Hewitt, Mo.App., 299 S.W.2d 568; First National Bank of Hamilton v. Fulton, Mo.App., 28 S.W.2d 368.

Defendant apparently believes that there was no consideration which would support his liability on the notes because he did not retain the money loaned. That is an erroneous concept of what constitutes consideration. As was said in Thompson v. McCune, 333 Mo. 758, 63 S.W.2d 41, 43:

«* * * A consideration for a contract may be shown by proving a loss or some detriment to the promisee as well as by showing a benefit to the promisor. Starr v. Crenshaw, 279 Mo. 344, 213 S.W. 811; Nelson v. Diffenderffer, 178 Mo.App. 48, 163 S.W. 271; People’s State Bank v. Hunter, 216 Mo.App. 334, 339, 264 S.W. 54. It is well settled that when a person interested in a firm, a corporation, or business enterprise as a partner or stockholder gives his individual note for money loaned or advanced to such firm, corporation, or business, such note is not without consideration. The furnishing of the money to the firm, corporation, or business in which the maker of the note has an interest itself furnishes a consideration. Holland Banking Co. v. Griggs, 323 Mo. 289, 295, 19 S.W.2d 290, 292; First National Bank v. Henry (Mo.App.) 202 S.W. 281; People’s State Bank v. Hunter, 216 Mo.App. 334, 264 S.W. 54. Under such facts there is both a consideration by way of detriment to the payee or person furnishing the money as well as a benefit to the promisor.”

Each of the two notes on its face was a completely executed instrument, and “ * * * is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.” Section 401.024, RSMo 1959, V.A. M.S. The burden was on defendant to show .the absence or failure of consideration. Popovsky v. Griwach, 361 Mo. 1120, 238 S. W.2d 363; Thompson v. McCune, supra. Defendant failed to carry that burden, and .the judgment should therefore be affirmed. The Commissioner so recommends.

PER CURIAM.

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

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


author: FRANK W. HAYES, Special Judge.

text:
    MISSOURI EDISON COMPANY, a Corporation, (Plaintiff) Appellant, v. Raymond B. GAMM and Helen B. Gamm, (Defendants) Respondents.
    No. 31529.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.

      Mcllroy & Millan, John M. Mcllroy, Bowling Green, for plaintiff-appellant.
    Paul E. Williams, Bowling Green, Edward A. Glenn, Louisiana, Mo., for defendants-respondents.
   FRANK W. HAYES, Special Judge.

This is a condemnation proceedings brought by Appellant (Plaintiff below), Missouri Edison Company, a corporation, against Raymond B. Gamm and Helen B. Gamm, Respondents (Defendants below) to condemn an easement or fight of way 100 feet wide across the respondents’ farm for the construction and maintenance of an electrical power transmission line for public use. Appellant in its petition covenants that it would install necessary gates, cut and remove trees, would not fence tract involved, would not require exclusive use of said tract except where occupied by its poles; that respondents to have continued use of balance of said land and shall not construct any permanent or temporary structure beneath or near power conductors which will create actual or contingent hazards; that it shall have necessary egress and ingress; patrol by foot only within the limits of right of way; would replace fences; would not, after construction of transmission line, erect any other structure except as replacement; would enter area only at ends of strip only; would pay all damage for crops, fences and land which may be suffered from erection, operation and maintenance of said line.

The respondents Gamm own a farm of approximately 384 acres near Bowling Green, Missouri, in Pike County, about one and one half miles from junction of 61 and 54 highways. They acquired the Hedges place in June, 1958, and the Henrichsen place in March, 1959. These pieces of land lay together and are operated as one unit. The appellant seeks an easement one hundred feet wide across defendants’ land on which were erected eight one-pole structures. Respondents claim that under this easement there was a deposit of limestone. Test bor-ings were made, some as deep as seventy feet, and the rock at the bottom was the same as at the top. Samples were sent to University of Missouri Laboratories. An analysis disclosed that the deposit consisted of dolomite limestone which is used as agricultural fertilizer. It was estimated that there was possibly 700,000 tons of agricultural fertilizer in this easement area.

There were eight single poles with cross-arms in the easement area. They carried three transmission lines of 69,000 volts and one static wire. Appellant produced evidence that the limestone deposit could be mined despite the presence of the easement and the structures on it. Respondent produced evidence that the presence of the power line and existence of the easement would make it difficult if not dangerous to mine the limestone in the area. Some evidence was to the effect that blasting- could be safely done from 300 feet to 100 feet or 35 feet from the power line installation.

The amount of damage sustained by respondents by the taking of the easement and building the power line varied greatly. Respondent Gamm fixed the difference in the value of the farm immediately prior to the taking and immediately after the taking at $35,000.00 and witness Word at $30,000.00. Appellant’s witnesses appraised respondents’ damages at much smaller amounts. Witness Middleton fixed the damage at $1200.00; witness Clark at $1000.00; witness Botkin at $500.00 to $1000.00. Appellant’s witnesses, however, did not consider the presence of the limestone, nor its sale or inability to mine it, in arriving at their appraisals. The jury gave respondents a verdict for $8,270.-00, from which judgment the appellant appeals, contending that Court erred in admitting certain testimony of respondents’ witnesses, in rejecting certain testimony of its witnesses, and in giving Instructions 3 and 4 for respondents. These assignments will be considered in turn.

Appellant contends that Court erred in permitting respondents’ witness, Gerwin Rohrbach to testify respecting marketing of limestone, availability of limestone, and amount of limestone on the property in question because such testimony was in nature of expert testimony and that said witness did not qualify as an expert. The trial judge has a broad discretion in determining whether or not a particular witness has sufficiently qualified to give an expert opinion on the subject and in absence of abuse of this discretion cannot be charged with error. State ex rel. State Highway Commission v. Cone, Mo., 338 S.W.2d 22; Wardin v. Quinn, Mo.App., 324 S.W.2d 151; Yocum v. Kansas City Public Service Company, Mo., 349 S.W.2d 860. The witness testified that he was a planning consultant and economic marketing analyst, and President of a company known as General Planning and Resource Consultants; that he studied at Harvard College in the field of government economics; was consultant to various governmental agencies in several states in fields of community development, economic planning and resource use; that he studies present resources and future use of those resources based on the present and projected need of a population and area and examined in detail respondents’ property as to the use of that property and as; to the resources on that property. We conclude that trial court did not abuse its discretion in permitting the witness to testify respecting marketing of limestone and use- and availability of limestone. As to the amount of limestone on respondents’ property, his testimony was based on actual core borings made by University of Missouri technical staff and an analysis of their reports. The trial court did not err in permitting this witness to testify.

Appellant urges that trial court erred in permitting witnesses Tom Fitzgerald and Ray Bibb to testify as to quantity of limestone on respondents’ farm. Fitzgerald testified that he was managing the Magnesium Mining Company which mines limestone for use as commercial fertilizer with its main quarry site about a mile from respondents’ land. He was associated with the company for several years prior to becoming manager. At request of respondents, he and others under his supervision drilled some test holes on the easement area. They drilled one hole, near the silo, forty feet deep and one seventy feet deep at the crown of the hill. They did not run out of stone at either location. This witness did not testify as to -the quantity of limestone in the area and it was not error for him to testify as the result of the boring. There is no merit in this contention. Appellant assigns as error that witness Ray Bibb testified as to quantity of limestone on respondents’ farm and profits of own quarrying operation. No objection was made to any of this testimony and, of course, appellant cannot now complain.

Appellant contends that court erred in permitting witnesses Thomas Fitzgerald, Ray Bibb and Dr. F. W. Fitzgerald to testify concerning the quarrying operation they operated, the price per ton, the supply they had and profits from their operation because it was irrelevant and immaterial. The issue in the case was whether respondents’ property was damaged because appellant’s easement was located over a deposit of agricultural limestone. If the jury found there was damage, then the amount of limestone available, and its market price, was relevant and material in assisting jury to determine the extent of respondents’ damages. Without burdening this opinion with a résumé of the testimony of these three witnesses, the court, after an examination of the record herein, finds that the testimony complained about was either not objected to by appellant at the trial or that it was relevant and material to the issues before the jury and was properly submitted to them.

Appellant claims court erred in refusing to permit its witness Van Shive to testify that appellant would not have any objection to the use of the land in the easement for quarrying purposes. The manner in which the condemned land is to be used is to be made of record in plaintiff’s petition by express covenants and is not to be determined by testimony of its witnesses. Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478; State ex rel. N. W. Electric Power Co-op, Inc., v. Waggoner, Mo.App., 319 S.W.2d 930.

Appellant contends that trial court erred in refusing to permit witnesses Juro-tich and Engelarge to testify as to blastings by their companies under power lines. Witness Jurotich was employed in real estate department of Union Electric Company. Witness was familiar with Vigus .South quarry which quarries road material. There was no showing by appellant that there was any similarity between the operations there and here and the court properly ruled the matter. As to witness Engelarge, he testified he was employed by Tavern Rock Sand Company as Plant Manager and that his company produced silica sand; that they did not produce agricultural limestone and did not blast under the power wires and did not come closer to 300 feet of the wires in their blasting. It is evident the court ruled properly as to this witness. However, it is evident the plaintiff was not prejudiced by court’s rulings supra. Plaintiff’s witness Cooksey testified that he was in the rock quarry business at Moberly, Missouri, and produced agricultural limestone. His testimony established a similarity between quarrying on his land and on respondents’ property. He testified as to blasting under high voltage lines and as close as thirty-five feet from the power line. There was evidence, therefore, in the record that respondents could quarry the land beneath appellant’s power lines.

Appellant contends that the court erred in giving Instruction No. 3 for respondents, which is as follows:

“The term ‘fair market value’ means the price which property would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it but is not compelled to do so. Fair market value does not mean the price it would bring where the party selling is forced to sell, or where it is sold for other considerations in addition to the money paid, but rather what the land would fairly bring in the hands of a prudent seller at liberty to fix the time at which he would sell and the conditions under which he would sell. The question is, if the defendants wanted to sell their property, what could have been obtained for it upon the market from parties who wanted to buy it before June 1, 1960, and after that date, and would give its full value for its highest and best use.
“In determining its fair market value the Jury should take into consideration its location, the uses for which it is suitable at such location, proximity to roads and access, proximity to transportation, if any, and all the uses to which it may best be applied or for which it is best adapted, having regard not alone for the existing business wants of the community but also such uses as may be reasonably expected in the immediate future. In determining the uses and purposes for which the lands were suitable or adaptable, the Jury is not confined to the' use made of the land at the time it was taken.”

It asserts said Instruction gives the jury a roving commission to take into consideration the irrelevant, immaterial and highly speculative testimony admitted on behalf of respondents. Instruction No. 3 is practically identical with Instruction I approved by the Supreme Court in City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 843. The highest and best use to which the property is adapted or likely to be needed or used in the reasonably near future is to be considered. Union Electric Company of Missouri v. McNulty, Mo., 344 S.W.2d 37; State ex rel. Board of Regents for Central Missouri State College v. Moriarty, Mo.App., 361 S.W.2d 133. Instructions substantially the same as Instruction No. 3 have been approved in the above cases and in In re Armory Site in Kansas City, Mo., 282 S.W.2d 464; Proceedings for Condemnation of Private Property for Sixth Street Expressway, Kansas City v. National Engineering and Manufacturing Company, Mo.App., 274 S.W.2d 490; Union Elec. Co. v. Jones, Mo., 356 S.W.2d 857; Union Electric Co. v. Simpson, Mo., 371 S.W.2d 673. The trial court did not err in giving Instruction No. 3, supra.

Appellant in its brief urges the court erred in giving Instruction No. 4 because it referred to “high poles” and there was no evidence as to high poles. Instruction No. 4 is as follows:

“In assessing damages sustained by the defendants, Raymond B. Gamm and Helen B. Gamm, by the taking of their land, you are instructed that their land is to be regarded as one unit, and their damages consist not only of the diminution of the reasonable value of the five and 8%oo acres of land in the actual easement, but in addition, the injury to or reduction in the value, if any, to the remaining 378.14 acres of their land, caused by the taking.
“Such damage to the remainder, if any, must be direct and certain at the time of the taking, June 1, 1960. In fixing such damage, if any, to the remainder, you will take into consideration all facts in evidence relating to the condition of the remainder of the property as a result of the taking, which would naturally impress a reasonably prudent buyer in negotiating for the purchase of the remainder, the reduction in value, if any, caused by the decrease in demand for the land, if any, and for such damages, if any, caused by the establishment, erection and maintenance of the high poles and wires in the easement area, and all matters mentioned in the evidence, which owing to the taking of the land affects the further use, enjoyment and value of the land as a whole, in so far as it affects the market value thereof, and the fact that the law presumes that the Plaintiff will exercise its rights and powers to the fullest extent.”

Petition recites that wooden poles used in the construction will not be less than fifty-five feet or more than seventy-five feet in length. Mr. Williamson, construction superintendant for appellant, testified that the pole they were describing there would be a fifty foot pole. In Louisville & N. R. Co. v. Tucker’s Adm’r, Ky., 65 S.W. 453, 454, the court says:

“ * * * ‘High’ and ‘low’ are relative terms. A thing is said to be high or low when compared to other things. A structure is said to be high or low according to the uses to which it is to be put. So, in this case, the bridge is high or low according to the height of cars to pass under it. * * * ”

So in the case at bar, it would not be erroneous or prejudiced to appellant to refer to a fifty foot pole as a “high pole” with reference to the machinery, implements, etc., of respondents which would pass over the easement during its use by respondents and under the wires supported by a fifty foot pole. The poles being high would be to' appellant’s advantage as they would support the electrical wires high enough not to interfere with respondents’ normal use of the land in the easement. Under the evidence it was not error to refer to the fifty foot poles as “high poles.”

As to appellant’s assignment that Instruction No. 4 is subject to the same criticism as Instruction No. 3, suffice it to say that such criticism is answered by cases cited as to the correctness of Instruction No. 3. There was no error in giving Instruction No. 4.

Witness John Word testified that he was in the real estate business and had made many appraisals and had appeared as a witness as to appraisals in many lawsuits. He had gone to the Gamm farm and examined it with the idea of making an appraisal particularly with reference to the easement of appellant. He testified that, in his opinion, before the taking, the farm was worth $75,000.00; and that, after the easement, the value would be $45,000.00. He took into consideration there was a lime deposit within the easement. The value of minerals in land taken by eminent domain is to be considered in determining the value of such land. 29 C.J.S. Eminent Domain § 174, p. 1043. Respondent Gamm testified that the value of the farm with limestone deposit before the easement was $85,000.00, and after the taking of the easement was $50,000.00. Appellant’s witnesses on value and damage were three real estate men who put the difference between the market value before and after the taking from $500.00 to $1200.00. The verdict was for $8270.00.

The contention that the verdict was not supported by substantial evidence is obviously without merit. Respondents’ witnesses were qualified to give their appraisals. The appellant’s witnesses testified to smaller amounts but they admitted they disregarded the presence of the limestone. The presence of the limestone was an element to be considered. Value and damages in a condemnation proceedings are not susceptible of precise proof and in many cases can only be approximately shown by the opinions of witnesses having the requisite information. State ex rel. State Highway Commission v. Mink, Mo.App., 292 S.W.2d 940. The weight of the evidence was for the jury and there was substantial evidence to support their verdict.

Respondents’ motion under Court Rule 83.13, paragraph (d), V.A.M.R., to add ten percent to the judgment herein is overruled.

The judgment of the trial court is affirmed.

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


author: WOLFE, Judge.

text:
    STATE of Missouri at the Relation of GULF OIL CORPORATION, Relator, v. Honorable Noah WEINSTEIN, Judge of the Circuit Court, County of St. Louis, Missouri, Respondent.
    No. 31613.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964
    Rehearing Denied June 22, 1964

      Evans & Dixon, Eugene K. Buckley, St. Louis, for relator.
    William B. Ewald, Forrest Boecker, St. Louis, for respondent.
   WOLFE, Judge.

This is an original proceeding in prohibition seeking to prohibit the respondent, a Judge of the Circuit Court of St. Louis County, from proceeding to try a cause in which it is alleged that there has been an unauthorized joinder of causes of action and parties.

There is no factual dispute between the relator and the respondent in this action. The causes of action which have been joined and which the plaintiffs in the trial court seek to have determined by one trial are set forth in one petition containing three counts. The parties plaintiff in the petition filed in the Circuit Court are Fred H. Stuckwish, Fred Wells, and United States Fidelity and Guaranty Company. The defendant named in the petition is Gulf Oil Corporation, the relator here.

The plaintiff Stuckwish alleges in the first count of the petition that he bought some fuel oil on December 12, 1961 that was defective when used in the manner for which it was intended. He alleges that the defect would cause some of the components of the oil to solidify when it was exposed to temperatures below freezing. It is alleged that this defect caused the combustion of the oil to occur with explosive bursts so as to escape from the heater in which it was being used. He alleges that he did not know of the alleged defect. He stored the fuel in an outside tank when the temperature was below freezing. On December 24, 1961 he used the oil in a space heater and suffered fire loss in the sum of $3,338.40 by reason of its use.

It is alleged that the fuel oil was supplied in St. Louis County by the defendant Gulf Oil Corporation, but it is not alleged that the plaintiff purchased it from the defendant.

The second count is a claim asserted by-Fred Wells. He alleges that he bought some fuel oil on December 23, 1961, and he makes the same allegations as to its defect and combustion with explosive bursts as alleged in Count I. He alleges that a fire was caused by the defect when the oil was in use in a properly operating space heater on December 25, 1961. He claims damages arising out of personal injuries caused by burns and for personal property loss by reason of the resulting fire. The total damage sought by him is $10,000. In this count it is also alleged that the defendant Gulf Oil Corporation supplied the fuel oil in St. Louis County, but it is not alleged that the plaintiff purchased it from them.

Count III is a claim by the United States Fidelity and Guaranty Company, which carried a policy of fire insurance on some merchandise and fixtures owned by Stuck-wish which were destroyed by fire. It makes the same allegation that Stuckwish made in Count I and claims to be subrogated to the rights of Stuckwish in the amount of $5,552.66 paid to him as an insured loss on the property covered by its policy and destroyed by fire.

The defendant moved to sever Count II from the petition and try the cause asserted by Wells in Count II separately. It is stated that the claim of Wells did not arise out of the same transaction or occurrence and cannot be joined with the claims asserted by the other plaintiffs under Rules 52.05 and 52.06, Missouri Rules of Civil Procedure, V.A.M.R. The court overruled this motion, and the defendant-relator here sought and was granted a preliminary rule in prohibition to stop the trial of the claims as one case.

The respondent’s return asserts that the Judge had jurisdiction of the parties and subject-matter of the claims, and that he had jurisdiction to rule upon the motion to sever the claim asserted in Count II of the petition by authority of Rules 52.05 and 52.06, Missouri Rules of Civil Procedure, and that he was exercising judicial discretion permitted under those rules.

The rule here controlling is 52.05, which is the same as Section 507.040, RSMo, V.A. M.S. It relates to the permissive joinder of parties, and it is as follows:

“(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to' their respective liabilities.
“(b) Separate Trials — ■Protective Orders. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.”

The sole question presented is whether or not the petition states claims “arising out of the same transaction, occurrences or series of transactions or occurrences.” If it does not, it is not within the statute permitting such actions to be joined. The claims that the plaintiffs allege arise out of the use of fuel oil purchased by each plaintiff from an unnamed party or parties. The purchases were not made at the same time. The purchases were separate transactions in no way related. If this may be said to be the transactions out of which their several claims arose, it is obvious that they were neither the same transaction nor a series of transactions.

The occurrences were two separate fires burning and damaging property owned by different plaintiffs, and the fires occurred on different dates. It is therefore apparent that neither the occurrences nor the transactions were the same, nor did they constitute a series of transactions or occurrences. Since neither requisite for a joinder under the rule is present, the claim of Fred Wells upon Count II of the petition must be severed and tried separately. State ex rel. Campbell v. James, Mo.Sup., 263 S.W.2d 402; State ex rel. Siegel v. Strother, Mo.Sup., 289 S.W.2d 73; State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453; Joinder of Parties, Claims and Counterclaims. Edward M. Ruddy, 1 J. of Mo. Bar 85 (June 1945).

The respondent contends that prohibition will not lie because the court had jurisdiction of the parties and of the subject-matter. In this respect the respondent misconceives the extent to which the writ is employed. It may be invoked to restrain the enforcement of orders beyond or in excess of the authority of the Judge, though the court over which he presides has general jurisdiction of the class of cases to which the one in question belongs. State ex rel. Schoenfelder v. Owen, Mo.Sup., 152 S.W.2d 60; State ex rel. Henry v. Cracraft, Mo.App., 168 S.W.2d 953; State ex rel. City of Mansfield v. Crain, Mo.App., 301 S.W.2d 415.

The respondent also asserts that he was exercising his judicial discretion in ordering the causes tried as one action. The permissive joinder of parties is fixed by the Civil Rule. This sets out the law in relation thereto, and the trial court cannot lawfully exercise any discretion contrary to the law relating to the matter before it. While it is true that under some circumstances the court may in its discretion order separate trials of claims joined, it has no discretion to try claims improperly joined in one action. Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 125 A.L.R. 674; Highfill v. Brown, Mo.Sup., 340 S.W.2d 656.

As stated, the respondent may not try the claim of Fred Wells in Count II of the petition with the claims of the other plaintiffs, but it must be severed and proceeded with separately.

The preliminary rule in prohibition is made absolute.

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


author: ANDERSON, Judge.

text:
    Esther L. BUTLER, (Plaintiff) Respondent, v. Henry J. BUTLER, (Defendant) Appellant.
    No. 31386.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.

      J. C. Jaeckel, Moser, Marsalek, Carpenter Cleary & Jaeckel, St. Louis, for appellant.
    C. Powell Fordyce, Thomas Rowe Schwarz, Fordyce, Mayne, Hartman, Ren-ard & Stribling, St. Louis, for respondent.
   ANDERSON, Judge.

This is an appeal from an order and judgment, entered in a divorce proceeding, awarding Esther L. Butler, plaintiff in said action, the sum of $250.00 per month alimony pendente lite. The appellant is Henry J. Butler, defendant below.

Plaintiff filed the suit on October 17, 1961. The petition alleged general indignities and the separation of the parties on September 10, 1961. There was a prayer for a divorce with alimony in gross and an attorney’s fee. Defendant’s answer denied the charges made against him and averred that plaintiff was not entitled to any of the relief sought.

On November 18, 1961, plaintiff filed a verified motion for alimony pendente lite, suit money and an attorney’s fee. The motion was thereafter on December 13 heard and submitted at a pretrial conference, and on said date the court sustained said motion as to the allowance of an attorney’s fee, awarding plaintiff the sum of $500.00 for said item on account, but denied alimony pendente lite. Appellant in his brief in this court states the court refused alimony pendente lite for the reason that plaintiff possessed at that time assets in the sum of $5,000. This statement is not denied by respondent, and since the record shows that plaintiff in her motion to set aside the order made a like statement, we will accept appellant’s statement as true. Plaintiff did not file a motion for new trial within the time required by law, and did not appeal from the order and judgment.

But on May 29, 1962, plaintiff filed a ver-fied motion entitled “Motion to Set Aside Order Denying Plaintiff Alimony Pendente Lite or in the Alternative to Modify Said Order.” The motion recited a change in plaintiff’s financial condition since Decern-her 13, 1961, in that her living expenses had reduced her assets to much less than $5,000, and her funds were very rapidly exhausted; that she was 59 years of age, and although she had obtained part time employment at $30.00 per week, she was in need of dental and medical services but feared to expend her limited funds for such services. It was also averred that defendant was possessed of gross assets in excess of $250,000 and net assets in excess of $135,000; that defendant had an income from securities, from his business and rents, and in addition a life income from a trust with assets of approximately $150,000. The prayer of the motion was to set aside the previous order denying plaintiff alimony pendente lite or in the alternative to modify said order and make and enter an order for alimony pendente lite in such an amount as the court should deem reasonable and proper to permit plaintiff to maintain herself in a manner suited to her condition in life and to which she was accustomed during the time plaintiff and defendant lived together.

Hearings were had on the motion on June 19 and 22, 1962. At the outset defendant’s counsel objected to the reception of any evidence in support of the motion on the ground that no motion for new trial having been filed after the entry of the order of December 13, 1961, denying plaintiff’s motion for alimony pendente lite, or an appeal taken from said order, the matter was res ad-judicata, and the court was without jurisdiction to set aside or modify said order of December 13, 1961. The objection was overruled, the court stating it had jurisdiction to entertain such a motion bottomed on changes in circumstances since the previous order.

In support of the motion plaintiff testified she was then 59 years of age. The parties were married in Scarsdale, New York, in February 1953, and separated September 10, 1961. She stated that the last time she received any money from defendant was in November 1961, and that since said date defendant had contributed nothing toward her support. Plaintiff owns but one share of stock in Butler-Kohaus, Inc., her husband’s business. On December 13, 1961, she had assets worth approximately $5,200, but at the time of the hearing (June 19, 1962) her assets, which consisted of stocks, were worth less than $2,000. She had sold over one-half of the stock in order to support herself, not having other resources. She had also borrowed $300 from her brother. She entered the employ of Lammert Furniture Company on March 1, 1962, working three days a week and was being paid $30 per week net exclusive of commissions. She had been unable to earn any commission, because she could not make the requisite number of sales, working only three days a week. She had been in bed ill the previous week on account of a recurrence of a sacroiliac condition that had its inception four years previously. She had consulted a doctor for this condition, and he had made seven or eight X-rays of her spine. She thought the doctor’s bill would be around $100. She stated she was in need of dental work which should have been done before she and defendant separated. Part of this dental work was urgent, but she had no money to pay for it. Since December 1, 1961, plaintiff has been living in a five-room apartment, at 818 South Brent-wood Boulevard, in the City of Clayton, Missouri, the rental for which is $150 per month. She estimated she needed between $400 and $500 per month to properly sustain herself.

Plaintiff and her husband, as tenants by the entirety, own a residence at 4907 Pershing Avenue, in the City of St. Louis, for which a prospective purchaser had offered $30,000. Defendant is living alone in this residence, which has twelve rooms and three baths.

The Joint Federal Income Tax Return of the parties for the years 1959 and 1960 were introduced in evidence by plaintiff. The 1959 return shows a salary for Mr. Butler of $4,800 and for Mrs. Butler of $4,-902.50; capital gains from the sale of stocks, $24,772.04; net rental from a building on Olive Street, $2,075.09; income from a trust fund, $5,457.36; dividends received by Mr. Butler from stocks, $8,161.40; and dividends received by Mrs. Butler, $84.00. The total of these items is $50,252.39. However, in the return the parties have taken credit in the sum of $873.01 as depreciation of the Olive Street Building which sum, of course, was not an actual out-of-pocket expense m connection with said property. Adding this item to the above sum makes a gross cash receipt for the parties of $51,-125.30 for the year 1959.

Defendant is the sole owner of Butler-Kohaus, Inc., except for qualifying shares owned by others. Such being true, it would have aided the court in estimating defendant’s income to know the earnings of this corporation, for the reason that under the circumstances it would be proper to lift the corporate veil and consider its earnings in ascertaining defendant’s income. However, no such evidence was offered. But it does appear that at present the corporation is making no payment of salary to Mrs. Butler.

The capital gain of $24,772.04 was paid to Security Trust Company to reduce a loan there to $105,100. This, of course has had the effect of reducing interest payments for subsequent years. The Federal Tax Return for 1959 shows a Federal tax of $8,-340.37; interest paid, $5,748.95; taxes other than Federal income tax, $1,762.31. This item included plaintiff’s Social Security Tax, an item defendant does not pay at the present time, since plaintiff is no longer employed by defendant’s company. Said return further shows contributions to various charities of $435, a deduction of $8.25 for a safety deposit box, and $138.29 for storm damage to his summer home.

Defendant also introduced in evidence as Exhibit 1 a list of items of living expenses for the year 1959, amounting to $13,810.50. Many of these items included expense incurred on behalf of Mrs. Butler and other items not likely to recur. For instance, there is listed items of expense in connection with the wedding of Mrs. Butler’s daughter, amounting to $395.76; long distance telephone charges made by Mrs. Butler amounting to $529.00; taxicab fare for Mrs. Butler, $83.30; department store account of Mrs. Butler, $1,120.98; $746.29 for vacation trip which included Mrs. Butler and her children by a former marriage; additional Federal tax of $760.72 paid in connection with a trip the parties made to Europe in 1951; medical expense incurred by Mrs. Butler, the exact amount not shown; veterinarian expense in connection with dogs, $82.25; $31.26 which-Mrs. Butler expended for framing pictures; appraisal of the contents of house at 4907 Pershing Avenue, mostly Mrs. Butler’s property, $200; $75 spent in connection with the funeral of Jim Burns, a fishing guide and life-long friend; and gifts to Mrs. Butler’s children, exact amount not shown. Also included was $1,680 payment on the house where the parties lived and $1,757.85 life insurance.

The Joint Federal Income Tax Return for 1960 shows salary for Mr. Butler in the sum of $4,800, and Mrs. Butler in the amount of $3,792.50; dividends received in the sum of $6,856.95; income from trust estate, $5,438.97; net rent from Olive Street property, $1,893.12. Here again, the sum of $872.01 depreciation is taken on the Olive Street property, and since this is not an out-of-pocket expense, said sum should be added to the net rent received. There was also shown a capital loss through the sale of stocks purchased in 1960 which should be deducted. With these alterations it appears that the income of the parties for the year 1960 amounted to $24,451.03. It is not shown where defendant got the $10,137.-26 to purchase stock during 1960, the sale of which during said year resulted in a capital loss of $1,508.45. There is deducted from income a business loss sustained by Butler-Kohaus, Inc., the sum of $9,567.81, thus reducing his Federal Income Tax to $502.09. Other deductions arc: contributions, $315.00; interest, $5,803.07; taxes, $1,640.61; and miscellaneous, $58.25.

Also introduced in evidence was defendant’s Exhibit No. 2, an itemized list of household expenses. This included $1,680.-00 paid to reduce the debt on the house; life insurance premiums in the sum of $1,-757.85; medical expense of $468.41; veterinarian expense in connection with the dogs, $116.00; summer trip to Wisconsin, $554.-02; taxicab fare for Mrs. Butler, $58.05; department store account, $1,044.08; Christmas presents, $425.80; household repairs, $1,288.05; telephone, $570.09; liquor, $323.-87; insurance, $730.09; $191.90 upholstering Mrs. Butler’s couch; and $103.25 in an attempt to sell the Pershing Avenue house. It is fair to assume that a fair share of the above expense was spent on Mrs. Butler, which expense defendant is not now burdened with.

In 1960 defendant borrowed $3,000.00.

Defendant also offered in evidence defendant’s Exhibit No. 3 which was identified as an itemized list of defendant’s expenses during the year 1961. Defendant testified this list did not include interest and taxes paid. The total shown on this exhibit is $12,032.46. It included a number of unusual items such as veterinarian fees for dogs, $171.50; attorney’s fee to E. O. Hancock, $500; attorney’s fee to Moser, Marsa-lek, etc., $202.92; and medical expense for first half of year, $492.14. It does not appear for whom this item was expended. There is listed $689.17 for summer trip to Wisconsin and a department store account, $845. It does not appear if this sum was for Mrs. Butler. There appears an item for presents for children, $550. It does not appear how much of this item was expended for presents for Mrs. Butler’s children. Listed is the sum of $342.97 for liquor. The list contained also the item of $1,680 for house payment; life insurance premiums of $1,757.85; and insurance in the sum of $948.86 paid to Capen & Company. It does not appear what this last item covered. There is also a notation on Exhibit 3 that $2,900.00 was borrowed in 1961. Defendant testified that in 1961, he purchased a fur coat for Mrs. Butler which cost $1,350, and a gold wrist band for $116. He also testified that on the exhibits, under what category he did not recall, he had included his dues at the University Club amounting to $30 per month and dues at the St. Louis Country Club which amounted to $60 per month. Defendant employs a maid at $35.-00 per week. He admitted that he did not believe $150 per month would support Mrs. Butler in the manner of living to which she was accustomed during the time they were living together. He further testified he had no idea what it would cost to support Mrs. Butler on that same general standard, but thought it could be done for far less than $400 or $500 a month. Plaintiff owns two buildings in the 2800 block of Olive Street where Butler-Kohaus transacts its business. There is a deed of trust on this building. There was no evidence of the value of this building, but in answer to interrogatories filed in the case and attached to the exhibits on file in this court there is a statement that the value of their property is unknown, but that it is appraised for tax purposes at $25,-000.00. It also stated that the deeds of trust on this property amount to $23,500. Defendant testified he owned stocks which he pledged at Security Trust Company for a debt of $105,100, and that the market value of these stocks at the time of trial was $121,213, leaving a value over the loan of slightly over $16,000. Defendant owns a home in Eagle River, Wisconsin, that could be rented for four or five hundred dollars a month. Defendant had not rented it for several years prior to the trial but hoped to rent it that year. Defendant inherited only a one-fourth interest in this property, but had purchased the interests of the three other owners for $5,000 a piece. He still owes $2,000 on it. It is not shown what the cash surrender value is of the life insurance he has taken out on his life for the benefit of a trust for his daughters, and for which he pays annual premiums of $1,757.— 85. These policies are pledged to secure a loan of $17,000 at the National Stock Yards. Bank, National City, Illinois. It also appears from the testimony that defendant was operating a new Chevrolet station wagon, the title of which was in Butler-ICohaus, Inc. Defendant owns 3,998 shares of stock in Butler-Kohaus, Inc., which has a book value of about $6.00 a share.

Appellant’s first point is that the court erred in awarding plaintiff the sum of $250.00 per month as and for alimony pendente lite. In support of this contention it is urged (1) that since plaintiff did not file a motion for new trial after the judgment and order of December 13, 1961, which denied her motion for alimony pendente lite, nor appeal from said judgment and order, said judgment must be held to be res judicata of the issue of alimony pendente lite and, (2) Section 452.070 R.S. 1959, V.A. M.S., does not provide for the “modification” of an order pertaining to alimony pendente lite; that the denial of an allowance under the original motion exhausted the power of the court to give further consideration to the question of temporary alimony.

The judgment of the court of December 13, 1961, has now, by virtue of Civil Rule 75.01, V.A.M.R., become final, but only as to facts and circumstances as they existed on December 13, 1961. The award of alimony pendente lite entered by the trial court on May 29, 1962, was an entirely new and different proceeding based upon a showing that plaintiff under the facts and circumstances as they existed on said date was entitled to such temporary alimony. Civil Rule 88.03, which governs this matter instead of § 452.070 RS 1959, V.A.M.S., provides for permanent alimony when a divorce shall be adjudicated, and then provides as follows: “The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases.”

In the case at bar the parties and the trial court have regarded the order of May 29, 1962, as a modification of the order of December 13, 1961. This is not strictly true, since no allowance was made on December 13, 1961. Rather it should be regarded as an independent order based on the changed conditions that existed on May 29, 1962. Under such circumstances the court had jurisdiction to deal with the matter and make such orders as the facts and circumstances then required, regardless of rulings on former motions. Libbe v. Libbe, 166 Mo.App. 240, 148 S.W. 460.

It is next urged that the trial court abused its discretion in entering the award for the reason that plaintiff failed to show a change in her financial condition, and further that, taking into consideration the debts, taxes and expense with which defendant is burdened, the amount allowed was grossly excessive. To this we cannot agree. The evidence clearly shows that plaintiff’s resources have been depleted to the point where she is unable to maintain herself in the manner to which she was accustomed, even when supplemented by her present meager earnings. Furthermore, she was not under the law compelled to sell the small remaining assets possessed by her before being entitled to the relief sought. Rush v. Rush, Mo.App., 284 S.W.2d 53. It also clearly appears that her earnings of $130.00 per month is not sufficient to maintain her according to the standard to which she was entitled as wife of the defendant. In fact, defendant admitted this while on the stand. The evidence further showed that at the time of the hearing she was ill and in need of medical and dental care which would justify a finding that the expense in connection therewith would probably absorb her remaining assets.

It may be true that on account of the extravagant manner in which defendant lives he is unable to meet the payments to his wife out of income. But this is not a ■sufficient reason for denying the wife an allowance for her support. As stated in McCarthy v. McCarthy, Mo.App., 329 S.W.2d 236, 1. c. 241: “It has long been the rule in this State that the total financial position of the husband is properly before the trial ■court and should be considered in determining his ability to pay such awards. * * *

“We cannot agree with appellant that 'his income should be given primary consideration by the trial court when making an ■award for alimony pendente lite. We believe that the correct rule is that the husband’s financial position, income and property should be considered as a whole when determining his ability to pay such award. In no event should the consideration given to the husband’s income be allowed to outweigh the needs of his wife and family, but ■each should be equally weighed in arriving .at a proper award.”

Considering defendant’s financial position and all the other facts and circumstances, we cannot say that the amount awarded in ■this case constitutes an abuse of discretion by the trial court.

Plaintiff has moved for the assessment of a penalty against defendant for vexatious appeal under the provisions of Civil Rule 83.13(d). This section should be applied with caution and should not be invoked against an appellant where the appeal presents a fairly debatable question of law or fact. Whited v. Guarantee Trust Life Insurance Co., Mo.App., 237 S.W.2d 915, or where it appears there are reasonable grounds for the appellant to believe he has a bona fide appeal. Bidleman v. Morrison Motor Freight Co., Mo.App., 273 S.W.2d 745. In view of the facts shown by the record in this case, we believe the motion should be denied. It is so ordered.

The judgment appealed from is affirmed.

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