text:
    Jane Dean GRECO, Plaintiff-Respondent, v. Joseph Thomas GRECO, Defendant-Appellant.
    No. 30668.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Lashly & Neun, Paul W. Lashly, St. Louis, Spradling & Bradshaw, Albert M. Spradling, Jr., Cape Girardeau, for appellant.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, Richard P. Conerly, Harold I. Elbert, St. Louis, for respondent.
   DOERNER, Commissioner.

Plaintiff brought this action for divorce, alleging certain indignities. Defendant answered, denying the charges made, but sought no cross relief. Upon the conclusion of the trial the court entered a decree awarding plaintiff a divorce, the custody of the minor child of the parties (subject to certain rights of visitation and temporary custody granted defendant), and an allowance of $25.00 per week for the support of the child. Defendant prosecutes this appeal from that judgment.

In her petition the plaintiff alleged, as grounds for her action, that defendant was constantly of a nagging disposition, finding fault with and criticizing plaintiff and plaintiff’s minor children by a former marriage, all without just cause or reason; that defendant was possessed of a violent temper causing him upon occasions to engage in heated arguments and quarrels; that defendant was cool and indifferent toward plaintiff and on numerous ■occasions stated that the only one that meant anything to him was Mary Jane, the haby born of the marriage; and that defendant had been critical, fault-finding, and unreasonably harsh in his treatment of plaintiff’s minor children by a former marriage, causing plaintiff to be in a constant turmoil.

The parties first met late in 1955 at Barnes Hospital in St. Louis, where defendant was an Associate Director and plaintiff was a volunteer worker. They were married in St. Louis County on January 1, 1956, and separated on March 21, 1958. In the interim a daughter, Mary Jane, was born on May 26, 1957. Both plaintiff and defendant had previously been married and divorced, and each had two •children by his prior marriage. Plaintiff’s children, who resided with the parties, were Roy, nicknamed Butch, and James, who at the time of the marriage were 9 and 5 years of age, respectively. Defendant’s children lived with their mother, but on infrequent occasions visited in the home of the parties.

The action was vigorously contested, the record is lengthy, and in most areas there is a sharp conflict in the evidence. Plaintiff testified that prior to the marriage she told defendant that she had had quite a lot of trouble with Butch since he was 3 or 4 years old, and that two different psychiatrists to whom she had taken him had advised her that Butch needed special handling, and a lot of affection and love. In these premarital discussions, plaintiff •said, she informed defendant that when Jimmy was 11 months old he was burned badly and was in a hospital for 5 months, during which time plaintiff spent practically all of her time with him; that that was the principal reason Butch developed a feeling of rejection; and that that was why Butch needed a loving, attentive, understanding and patient father. Defendant testified that plaintiff asked him to help her rear Butch correctly, and discipline him, and that he agreed to do so, but denied that the subject of his being a good father to the boys ever came up in the discussions.

Plaintiff testified that during the period of courtship, which was from November to January, and for the first three or four months after the marriage the defendant took Butch and Jimmy on wiener roasts, to picture shows, and out for hamburgers, and that his relationship with the children was very, very wonderful, but that about two to four months after the marriage defendant’s attitude changed, his efforts towards companionship ceased, and he imposed a regime of strict discipline on the boys, particularly Butch. The substance of plaintiff’s testimony was that defendant exhibited a lack of patience and tolerance, and that for minor transgressions defendant punished the boys severely, particularly Butch. Plaintiff testified that during the time the parties lived together defendant whipped Butch about 25 or 30 times with a belt or switch, first requiring Butch to strip from the waist down, and bend over and hold his ankles. Defendant testified that he had whipped Butch only 3 or 4 times, when Butch showed a complete lack of respect for his mother, that he used a little hedge switch tapering from a quarter to a sixteenth of an inch thick, but that he couldn’t recall ever switching him with his trousers down. Plaintiff testified that on one occasion defendant was about to whip Butch and make him strip when Marlena, defendant’s daughter by his first marriage, was in the room, but plaintiff insisted that Marlena leave the room. Defendant testified that he didn’t remember such an incident.

Plaintiff testified that defendant once “campused” or confined Butch to the small backyard for two weeks, and when Butch stepped out of the yard to retrieve a ball defendant extended the restraint for an additional week. Plaintiff also testified the campusing was a customary form of punishment. Defendant testified he could-n’t recall the practice of campusing on his .part, and that the one time when he cam-pused Butch, for a week, Butch had deliberately thrown the dog into the wading pool, which defendant had cleaned, in violation of defendant’s instructions. Defendant testified he didn’t recall any incident when he insisted Butch remain in the yard another week because he had stepped out of the yard to get a ball. Plaintiff testified that other forms of punishment administered by defendant, particularly to Butch, consisted of restricting him to his room, depriving him of meals, refusing him permission to make his customary Friday night visit to his grandparents, and requiring Butch and Jimmy to remove ash trays and other objects of their handicraft from the parties’ bedroom to the recreation room in the basement. Defendant testified that he had never used any means of punishing Butch which plaintiff hadn’t used, and denied that he had refused to let the boys visit their grandparents or required them to remove their knicknacks to the basement. Plaintiff testified that defendant used the phrase “ ‘When I say frog, you hop.’ ” (presumably to indicate the degree of obedience he expected). Defendant conceded that he used the phrase, but said that he did so in a joking manner, and that plaintiff and her mother, Mrs. Pott, did likewise.

As a further instance of defendant’s treatment of Butch, plaintiff related that in September 1957, she and defendant went to a parent-child picnic at Community School, a private school, which Butch and Jimmy attended. Defendant told plaintiff not to ask him to sit at Butch’s table, for the sixth grade, because Butch was too mean, and defendant sat with Jimmy at the table for the second grade. During the evening Butch went to the shop and got a tool box he had made for defendant on which the word “daddy” was inscribed in big red letters. He brought it to the table where defendant was sitting and said, “ ‘Daddy, here is the tool box I made for you.’ ” In the presence of the others at the table defendant replied, “ ‘I don’t want that thing.’ ” Butch burst into tears, and in plaintiff’s words “ * * * we tried our best to get away from there as fast as we could.” Defendant admitted that he had refused to accept the tool box from Butch, in the presence of others. He testified that about three weeks before the incident he and plaintiff were having a considerable amount of trouble with Butch, and that when Butch announced one morning that he was going to make defendant a tool box defendant asked him not to because he didn’t want one; that Butch informed defendant he was going to make it whether defendant wanted it or not; and that defendant told Butch that if he had to make one to make it for his grandfather. Defendant said that he apologized to plaintiff for his act, and told her he had made a mistake and was sorry for the manner in which he had handled Butch at that particular time. Defendant said that he also apologized to Butch but that the incident represented the turning point in his relations with the boy, because from that time on, which was September 1957, he had no further trouble with Butch.

Plaintiff testified that she objected to defendant’s discipline, telling him that it was too strict and unjust, that the children would hate him, and that he should be more patient, understanding and tolerant. She said that defendant told her that he was the head of the house, that he was going to do the disciplining, that she was not to open her mouth and that if she did he would wash himself completely of both boys and not have a thing to do with them. Defendant testified that until after January 1958, plaintiff never admonished him for disciplining the children; said he never remembered telling her to keep her mouth shut about the way he was disciplining them; and testified that after January 1958, he may have said that if plaintiff objected to his method of disciplining he would wash his hands of the -whole affair but that he didn’t recall having made such a statement before that time, although he might have.

Plaintiff testified that when defendant’s children by his first marriage, Tommy and Marlena, visited their home defendant took all four children out, usually every day, but that after Tommy and Marlena left then nobody went any place any more. Plaintiff said that defendant permitted Tommy to run the power mower and allowed Marlena to hold the baby, Mary Jane, but that he would not permit Butch to operate the power mower nor would he permit Butch or Jimmy to hold the baby. Defendant testified that Tommy was one year older and larger than Butch, and that he did not want Butch to use the power mower alone because he felt it was dangerous. Plaintiff said Butch used other power mowers in the neighborhood.

Plaintiff testified that after Mary Jane was born, in May 1957, defendant’s attitude toward her and the boys became worse. She said that on many occasions when defendant returned home in the evening defendant would pick up Mary Jane in front of her and the boys and say, “ ‘This is my baby, the only thing in the world that means anything to daddy.’ ” Plaintiff testified that defendant would take the baby into the living room and tell the boys to get out because it was his playtime with his daughter and he didn’t want them anywhere around. Defendant testified that the only time he asked the boys to leave the room was when plaintiff was about to change the baby’s diapers, because the baby would be in the nude and the boys were at the age of curiosity. Plaintiff testified that defendant was too particular about Mary Jane; that the boys were forbidden to sit on the bed on which the baby’s diapers were folded and that she was required to first put down a wrapping blanket on the bed before folding the diapers; that the boys were not allowed to come near the baby for fear they were dirty; that if Mary Jane sneezed or coughed defendant ordered them from the room; that they were continually cautioned about making a noise; and that defendant made the boys watch television in the basement recreation room and refused to permit them to use the television in the parties’ combination bedroom-sitting room. Defendant conceded that after the baby was born the second television set, formerly kept in the third bedroom, was moved down to the basement, but stated that the basement had been fixed into a club room to which the boys could bring their friends in the afternoon. Plaintiff testified that she told the defendant that he shouldn’t express his preference for Mary Jane in front of the boys, that he should treat them as near alike as he could, and that Butch already felt rejected enough; and that she and defendant had arguments on that subject.

It appears from plaintiff’s testimony that in addition to arguments and disputes over the matter of defendant’s disciplining of the boys and his partiality towards his own children and Mary Jane, quarrels developed over the family’s finances. Plaintiff received $200 a month from her former husband for the support of Butch and Jimmy. In addition, at the time of her marriage, plaintiff enjoyed a spendable income of about $8,000 per year derived as the net rental of barges she owned, the purchase and renting of which had been arranged by her step-father Herman T. Pott. Prior to the marriage, Pott had purchased the house in which plaintiff and her children resided, for which plaintiff paid Pott a rental of $250 per month. There appears to be no dispute in the evidence that at the time of the marriage it was agreed that defendant would contribute into a joint household account the sum of $200 every payday, which was every two weeks, and that plaintiff would pay the remainder of the household expenses, including the rent. Plaintiff testified that instead of $200 defendant frequently gave her only $100, $150, or $175, whieh was insufficient to meet all the household expenses, and that she bore them out of her own income; that nevertheless defendant complained that she spent too much and should get by on less, until finally defendant insisted on taking over the marketing and ceased to contribute to the joint household account. Defendant admitted that he took over the marketing but said he did so at plaintiff’s request. Plaintiff denied having made such a request. Plaintiff also testified that defendant insisted that all expenditures were to be cut down and that the family was not to go out to dinner because it cost less to eat at home. Plaintiff said that after defendant took over the marketing she frequently did not know what they were going to have to eat, that defendant bought only absolute necessities and that when she bought such things as cupcakes and sweet rolls for the children out of her own money, and defendant learned of it, a terrible argument ensued, in which defendant accused her of spoiling the children, that they didn’t need those things. Plaintiff testified that in his effort to cut down expenses defendant said that a light snack would be enough for the boys at night, because they got a big fancy meal at noon at the school they attended. Plaintiff said that she protested, and told defendant the children should have a full meal at night, no matter what they had for lunch.

Plaintiff testified that according to her records she contributed the sum of $5,551.-62 towards the household expenses in 1956, in addition to the rent of $250 per month, and that defendant contributed $4,309.73. In addition, she stated, she paid for the hoys’ tuition, dental bills, and similar items out of her own income. Defendant did not controvert plaintiff’s figures.

Although plaintiff was paying the tuition out of her own income, the boys’ attendance at Community School, a private institution, apparently was another source of friction between the parties. Plaintiff testified that defendant did not like private schools, and said it was ridiculous to spend that kind of money on a grammar school education, that his college education hadn’t cost as much as plaintiff was throwing away on the two boys. Defendant said he had not forbidden the children to attend Community School, but admitted that he had made a “suggestion” that the boys should go to a public school (which they were attending at the time of trial) because he thought they would be better fitted in a different type of school. He denied that there was any “difficulty” about the private school, but admitted that there was a “difference of opinion” between him and plaintiff on the subject. Defendant testified initially that he could not recall having ever objected to the expense, that it was none of his business, but later said that he may have objected to the expense “to the extent that we were not getting what it was — what they were paying into it.”

Plaintiff testified there were also arguments between her and defendant over her parents giving her more money, and that defendant said he thought her parents should give them $3,000 a year more, tax free. Defendant denied that he had ever made such a statement. However, on cross-examination defendant admitted that in a conference between him, plaintiff, and Mr. and Mrs. Pott, to be later discussed, he opened the meeting with the statement that plaintiff’s income wasn’t sufficient for “The specific requests that they (Mr. and Mrs. Pott) wanted her to spend that money for,” which specific requests defendant described as «* * * Community School, another was private camps, doing things of that nature.” Defendant admitted that the money used for such expenses were paid for by plaintiff out of plaintiff’s own income, and then said that “At the time of our marriage, (plaintiff’s) her income was only $250 a month, which went to paying for rent on the house.” Asked if plaintiff did not also have other income that went to pay for the children at Community School, defendant admitted that plaintiff received $200 per month from her prior husband, and insisted that all plaintiff had besides that was the $250 per month which went for rent, and that where, the money came from to pay for the children’s schooling at Community he didn’t know.

Plaintiff testified that defendant always complained that plaintiff’s mother interfered in their affairs. Plaintiff related one instance in which she was talking on the telephone to her mother to arrange for the latter to transport Butch from school to a camp picnic, and that when defendant heard that plaintiff was talking to her mother he screamed, loud enough for Mrs. Pott to hear over the telephone, that the mother was always interfering and meddling, and that she was an old battleaxc. Asked on direct examination as to what had occurred, defendant said that, “I don’t ever recall screaming at Jane,” but did not deny the statements about the mother which plaintiff had attributed to him. Defendant testified that the differences between his in-laws and himself precipitated with the announcement of plaintiff’s pregnancy and continued until the separation of the parties. Defendant said that he insisted that a conference be held to discuss, not the problems between him and plaintiff, but those “ * * * being created by outside influence,” resulting from Mrs. Pott’s interference in the family.

If such was defendant’s purpose in insisting on the conference, held in December 1957, with the Potts, that subject was never discussed, so far as appears from the record. The evidence shows, rather, that the only matters mentioned were plaintiff’s income, and defendant’s treatment of Butch and Jimmy. As previously stated, defendant said that he opened the meeting by stating that plaintiff’s income was not sufficient for the purposes for which the Potts wanted her to spend it. Plaintiff testified that there was a lot of talk between defendant and her stepfather about depreciation, which she didn’t understand. Plaintiff further said that defendant also maintained that plaintiff only made $2,000 a year (presumably from the barges), and that her stepfather replied that what defendant was talking about was depreciation, that plaintiff was spending more than that. Mrs. Pott testified that her recollection of the first thing she heard, as defendant and her husband entered the living room, was defendant telling Mr. Pott: “ ‘After depreciation, which I don’t know too much about, and after taxes are taken out, Jane only makes $2,000 a year’ ”; and that her husband replied “ ‘You all are spending it, so she must make more than $2,000 a year.’ ” Pott testified that he told defendant that any income which he had arranged for plaintiff was his affair, that he had tax problems, and that defendant’s suggestions to him, through plaintiff, “ * * * like buying the house and $3,000 a month (year?) * * * ” were none of defendant’s affair; that it was his privilege to handle it his own way because he was giving the money. Defendant testified that Pott informed him that “ * * * he was the financial genius of the family and he would figure the finances of the family the way it was less expensive to him and the hell with what I thought * *

Regarding the subject of defendant’s treatment of the boys, plaintiff testified that her stepfather told defendant that defendant had not been a good father to the children; and that defendant said he knew he had not been a good father and would try to be a better one. Mrs. Pott’s testimony was to the same effect, and she added that her husband told defendant that the tool box episode was one of the most cruel things he had ever seen a father pull on a boy. Pott testified that he told defendant his treatment of the children had been horrible, that defendant hadn’t been a good father to the boys, and that they were punished too severely for minor wrongdoings. Defendant replied, according to Pott, that Butch required strict attention but that he would be a better father to the children. Although we have carefully searched the transcript we have been unable to find any instance in which defendant denied or disputed the testimony of plaintiff, Pott, or Mrs. Pott regarding the accusations made at the conference as to defendant’s treatment of the boys. His only testimony on this phase of the conference were his admissions, on cross-examination, that during that meeting Pott had mentioned Butch and the tool chest, and that Pott had used the expression that defendant hadn’t been a good father to the boys.

It seems apparent from the testimony of both parties that a major cause leading to their separation was a controversy over their estimated Federal income taxes for 1957. Plaintiff testified that when the quarterly bills came in, during 1957, she pointed out to defendant that they were for more taxes than she had ever paid in her life, and asked defendant whether the bills were all hers. She said that defendant insisted that the bills were all hers because his income tax was withheld from his paycheck. Plaintiff testified that she thereupon paid the bills out of her own funds, and the records she introduced in evidence show that she paid the sum of $208 to the District Director of Internal Revenue on January 30, June 15, September 12, in 1957 and on January 13, 1958. Plaintiff testified that when she received the bills of about $600 for the boys’ tuition at Community School in January 1958, she found that she did not have sufficient funds in her personal bank account to pay them, and thinking she must have made a mistake, she took her books to the auditor of her stepfather’s shipyard, one Bruñe, who had always assisted her in keeping her books and in making up her income tax returns. She then found out that on the withholding statement filed with his employer defendant had listed as dependents himself, plaintiff, the baby, and plaintiff’s boys, Butch and Jimmy. Plaintiff testified that when she returned from the shipyard she and defendant “had a terrible quarrel” and that defendant said he hadn’t wanted plaintiff to take the books to the shipyard. Plaintiff testified that she told defendant he had no business claiming Butch and Jimmy as dependents because defendant didn’t support them, and that he shouldn’t have taken them as deductions. She testified that defendant told her he was the legal head of the household, and that if plaintiff didn’t let him take everybody he would pay only two-fifths of the running expenses, one-fourth of the food bill, and would bring all of Mary Jane’s food home with him.

On cross-examination defendant admitted that plaintiff had talked to him about the quarterly bills, and had said that the tax was more than she had paid in the past, and that he told plaintiff that it was the estimated tax based on plaintiff’s income. Defendant also conceded that a quarrel ensued in January, 1958, upon plaintiff’s return from the shipyard, during the course of which, according to defendant, plaintiff said her stepfather had accused defendant of being a thief, a smart alec and many other things, and had said defendant had outsmarted her out of $500; and defendant testified plaintiff was visibly shaken and made the same accusations against defendant. Defendant testified that he told plaintiff that if that was the way she felt he would borrow the money and pay her the $500; and that he also told plaintiff he would do everything possible to correct what he thought was an error. Plaintiff testified that defendant made no offer to pay the $500 until after the separation. Defendant denied that he had told plaintiff that if he couldn’t claim the boys as exemptions that he would pay only two-fifths of the household expenses, or that he had said he would pay only one-fourth of the grocery bill and bring home food for Mary Jane. Defendant testified that after this incident plaintiff became cool and rather depressed and moody, and thereafter didn’t have much to say to him.

Defendant testified that he claimed Butch and Jimmy as exemptions for withholding purposes in accordance with instructions given him by Bruñe at a meeting held in January 1957, between plaintiff, defendant, and Bruñe. Plaintiff testified that she never heard Bruñe tell defendant to claim the boys as deductions. Bruñe was not produced as a witness, and the declaration for 1957 was not produced as an exhibit. How■ever, defendant introduced in evidence a memorandum which Bruñe had sent plaintiff, which apparently accompanied the joint declaration for the estimate of the parties’ 1957 Federal Income taxes. To ■quote the memorandum: “(2) You and Joe should both sign (and date) at the bottom of the form; (3) Make check for ■$208 payable to Internal Revenue Service; (4) Mail check & declaration, not later than April 15 to: District Director of Internal Revenue, Federal Bldg., 12th & Market Sts., St. Louis 1, Mo.”

We think it is obvious that Bruñe must have known that defendant was going to claim Butch and Jimmy as dependents for withholding purposes. How, otherwise, would Bruñe have been able to arrive at the figure of $208 per quarter for the estimated quarterly tax in 1957 ? However, we think it is equally obvious from defendant’s testimony, as well as plaintiff’s, that plaintiff was not aware that Butch and Jimmy were not being claimed as exemptions on her behalf in the determination of the estimated tax plaintiff was to pay for 1957, as had been the case previously; and that plaintiff’s incomprehension of the reason for the increase in her quarterly payments was apparent to defendant. From defendant’s own evidence it is likewise clear that when plaintiff complained to him about the increased quarterly bills, defendant did not enlighten plaintiff as to the reason for such increase although he was well aware of the cause.

Plaintiff testified in effect that defendant was possessed of a violent temper, and that he frequently screamed and hollered. Defendant denied the accusations.

There was other testimony by Mr. and Mrs. Pott which corroborated plaintiff’s complaints as to the treatment of the boys, the defendant’s opposition to sending them ■to Community School, and the defendant’s statement that plaintiff’s parents should give the parties $3,000 a year more, tax free. On defendant’s part, records of the ■Community School were produced which indicated that Butch was inclined to do what he wanted, showed slight respect for authority, and required constant supervision. There was corroboration by Savannah Cox, a former maid for plaintiff, of defendant’s denial of mistreatment of the boys, but the witness, then working for defendant, admitted that a good number of times she heard plaintiff object to the defendant’s disciplining of the boys, that she heard the plaintiff and defendant argue about defendant’s disciplining of Butch, and that she had seen the plaintiff in tears over the matter. There was also considerable evidence of events which transpired after the separation, and of others which occurred after the petition was filed. It appears, for example, that after the separation a Father-Son dinner was to be held at Community School, that Butch did not want to be accompanied by his grandfather, Pott, because the latter would be the only grandfather there, and that at Butch’s request plaintiff asked defendant to go with Butch, which defendant did. There was also evidence that after the suit was instituted, violent arguments ensued between plaintiff and defendant over defendant’s temporary custody of Mary Jane. Plaintiff testified that on one occasion defendant called plaintiff a liar, and on being refused admittance, beat on the door; and that on another, on a Sunday afternoon, about the middle of September 1958, on advice of counsel, plaintiff refused to let defendant have the child, and that defendant screamed that plaintiff had been listening to her mother, who was neurotic, that plaintiff was an incompetent mother and not fit to raise the child, and that he was going to have both plaintiff and her mother committed. Defendant testified that when plaintiff told him she was denying him the right to see Mary Jane on the advice of her lawyer, he told her he would ask his own lawyer to start proceedings so that he could have visitation rights; that plaintiff wanted to know on what grounds he would do it; “ * * * and I said that I would say she (plaintiff) was under the influence of a psychoneurotic mother.”

Defendant’s first point on appeal is that plaintiff failed to prove that defendant committed acts constituting indignities upon which a decree of divorce can he granted under Section 452.010 RSMo 1959, V.A. M.S. In his argument under this point defendant says that even if plaintiff’s evidence as to defendant’s harsh treatment of Butch is accepted as true, such conduct would not constitute an indignity. In the first place, the matter of defendant’s disciplining of Butch was only part of plaintiff’s grounds for divorce, and secondly, the case of Greenbury v. Greenbury, Mo.App., 223 S.W.2d 153, cited by defendant, does not support his contention. This court did not hold in that case that mistreatment of the parties’ children by defendant did not amount to an indignity. All that it held was that the evidence did not sustain plaintiff’s charge that defendant had mistreated the children; but in doing so it tacitly recognized that such mistreatment, if sustained by the evidence, would have been an indignity under the statute. To the same effect see Cadenhead v. Cadenhead, Mo. App., 265 S.W.2d 426. And although there was no discussion of the question, it seems to have been held in Herriford v. Herriford, 169 Mo.App. 641, 155 S.W. 855, and Richardson v. Richardson, Mo.App., 270 S.W.2d 68, that mistreatment of a child by one spouse constituted an indignity to the other. Our statute, Section 452.010, does not define indignities, and requires only that they be such as to render the aggrieved’s condition “intolerable.” It would be difficult to imagine a course of conduct that would be more intolerable or unbearable, or that would be more subversive of the family relationship, than harsh and abusive treatment of a child. We have no hesitancy in saying that such conduct constitutes an indignity under our statute.

Defendant argues as to the weight we should give plaintiff’s evidence regarding defendant’s treatment of Butch. It is true that we try a case of this kind de novo, and may enter such judgment as the trial court should have entered. But it is likewise true that where, as here, there is an irreconciliable conflict in the evidence, great deference is afforded the finding of the trial court who had the parties and witnesses before him and was in a much better position to judge of their credibility. The instant case falls within that rule.

Lastly, defendant maintains that plaintiff was not entitled to a decree of divorce because the evidence showed that plaintiff was nor an injured and innocent party. The trial court specifically found that she was. The rule is that one seeking a divorce is not required to conclusively approve freedom from all fault, but only that, under all of the circumstances of a particular case, he had not been guilty of conduct constituting a ground or grounds for divorce. Simon v. Simon, Mo., 248 S.W.2d 560; Pippas v. Pippas, Mo.App., 330 S.W.2d 132. It is argued by defendant that plaintiff refused to speak to defendant for extended periods of time; that she refused to enlighten defendant as to the amount of her income and the business dealings she had; that she refused to resume marital relations with defendant after plaintiff had been unable to engage in them for a period because of an operation for a hernia; and other matters. The evidence showed only one instance of a failure to speak, not a course of conduct; and as to that instance the testimony of plaintiff was that she and defendant didn’t speak to each other, not that plaintiff alone refused to do so. Nor was there any testimony that plaintiff refused, on request, to tell defendant about her income. She may not have voluntarily informed defendant about certain barge transactions which were handled at her stepfather’s place of business, but her testimony was that even prior to the marriage she told him the amount of her spendable income and the manner in which it was derived. Defendant adopts an inconsistent position regarding plaintiff’s conceded refusal of consortium, from the latter part of January, 1958 to the separation. In the first part of his brief defendant argues that allegations and proof as to defendant’s refusal to engage in conjugal relations with plaintiff should not be considered because the * * * refusal of marital rights does not constitute a general indignity, * * * ” citing Pollard v. Pollard, Mo.App., 98 S.W.2d 132 and Gruner v. Gruner, 183 Mo.App. 157, 165 S.W. 865. If that doubtful proposition is correct plaintiff’s like refusal would not prevent her from being an innocent and injured party. If not correct, it would be but a single indignity, and therefore insufficient grounds for divorce. Moore v. Moore, Mo.App., 337 S.W.2d 781. Furthermore, plaintiff’s refusal did not occur until the relationship between the parties had become strained, following the income tax incident and after plaintiff had suffered most of the indignities stated, and may be considered an avoidance of condonation. Defendant also cites his own testimony that plaintiff had accused him of stealing $500 from her in the estimated tax incident. But plaintiff never testified that she had accused defendant of stealing from her; her testimony was that she told defendant he had no business taking Butch and Jimmy as dependents, because he didn’t support them. We have examined the other matters referred to in defendant’s argument and find them equally insufficient to bar plaintiff from being an injured and innocent litigant.

It is the recommendation of the Commissioner that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Judgment is affirmed.

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

RUDDY, J., not participating.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    CITY OF ST. ANN, Plaintiff-Appellant, v. Lewis BUSCHARD et al., Defendants-Respondents.
    No. 30916.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 15, 1962.

      William R. Dorsey, Clayton, for appellant.
    Paul Taub, Overland, for respondents.
   BRADY, Commissioner.

The appellant, hereinafter referred to as the city, is a city of the fourth class in St. Louis County, and seeks a declaratory judgment and judicial confirmation of its proposal to annex over 450 adjacent acres of land, hereinafter referred to as the proposed area, in a proceeding brought under the statute commonly known as the Sawyer Act, Section 71.015 RSMo 1959, V.A.M.S. The respondents, hereinafter referred to as the defendants, are nine of the landowners in this proposed area, and individually and as representatives of a class were made parties defendant. The trial court found against the city, and upon its after trial motions being denied by the trial court, the city has presented its timely appeal to this court. Trial began on October 5, 1959, and the trial court’s judgment was entered in January of 1961, the trial court stating that it had held up entering its judgment to have the benefit of the decision in City of Olivette v. Graeler, Mo., 338 S.W.2d 827, an opinion dated September 12, 1960. The transcript in the instant case was filed in May of 1961 and the case heard by this court during the docket for November. At that time, pursuant to the rules of this court, the defendants’ alternative motions to dismiss the appeal or to strike part of the appellant’s brief were taken with the case. These motions are overruled.

The petitioner alleged annexation to be necessary and reasonable for the proper development of said city, because the area proposed to be annexed lies in the path of the development and extension of the residential part of the city; because the proposed area is an extension to the present residential and commercial area of the city; because * * * It will be to the best interest of the entire community, consisting of the present City and the area proposed to be annexed, to bring the development of the unincorporated area under the jurisdiction of the City and under its zoning and building regulations”; because incorporated municipalities bound the city to the north, east and south, leaving the only direction available for expansion to the west; because the proposed area is the only unincorporated area adjacent to the city’s present western limits; because the proposed area contains several large tracts of undeveloped land which would provide for the growth and extension of the residential, commercial, and industrial development of the city; and because a large portion of the proposed area has been subdivided for residential purposes. Petitioner further alleged that the city is able to furnish to the unincorporated area municipal services within a reasonable time after annexation.

The answer admitted that the defendants were inhabitants of the proposed area, that petitioner’s action was brought under the provisions of § 71.015, supra, and that the area to be annexed and described in the petition lies to the south and west and is adjacent to the city, but the answer denied each and every other allegation. As an affirmative matter the defendants alleged that the proposed area was not unincorporated, but “ * * * is incorporated within the municipal County of St. Louis * * The answer also set up an affirmative defense that the proposed area is actually incorporated into the Town of Bridgeton and further alleged that the petition fails to state a claim upon which relief can be granted giving as one of the reasons therefor that the petition fails to meet the requirements for the maintenance of a class action.

The transcript is exceedingly long, and as usual ⅛ annexation proceedings, the evidence covered a wide range. Also, as usual in such proceedings, the case was hotly contested and unnecessary exchanges between counsel add greatly to the transcript’s length. It would serve no useful purpose and would extend the length of this opinion beyond reasonable limits to detail all of the evidence. We review this case de novo, reaching our own conclusions with respect to the law and the facts, but granting due deference to the findings of the trial court where the credibility of witnesses is involved, Civil Rules 87.11 and 73.01(d), V.A. M.R. Cases cited by the parties are important as general guides, but each case of this nature must rest upon its own facts, City of Olivette v. Graeler, Mo., 338 S.W.2d 827 at loc. cit. [2], page 837. In consideration of this appeal under the rules of review as stated above, we have carefully weighed all the matters contained in the transcript and since the findings of fact made by the trial court are supported by the evidence it will he unnecessary to restate the evidence in summary form in this opinion. Especially is this so as the appellant does not attack the trial court’s findings of fact but urges as prejudicial error the conclusions of law announced by the trial court based upon its findings of fact.

With reference to the area which the city seeks to annex, the trial court found that it comprised between 400 and 450 acres, containing 850 to 875 houses, 20 commercial establishments, 55 vacant lots, and has improved streets, 20 of which are hardtop, and 12, gravel and oil. It further found that this area is within St. Louis County, that St. Louis County provides street and highway maintenance, zoning, building inspection, plumbing inspection, electrical inspection, police protection and a health department; that the proposed area is provided with such utilities as water, electricity and gas, has garbage collection by contract between a private person or company offering such service and the householder; that this area lies within incorporated fire districts and school districts which also serve the city;, and that within the area a number of subdivision developments are “ * * * being carried on and have been carried on by developers who also developed in the * * * city; and that the proposed area lies within the Metropolitan Sewer District.

With reference to the city, the court found that its population is approximately 13,000, that it comprises some 1,300 acres containing approximately 1,300 houses; that “ * * * the development of the petitioner municipality has been such that there is but approximately sixteen acres in two separate areas available for further extension and development”; that the city’s financial position “ * * * has been stable with sufficient tax yield to meet its obligations with an ample surplus on hand * * * ”; that within the city’s present corporate limits are three parks of 22 acres, 6 acres, and 1½ acres, respectively, and that the city provides “ * * * certain counselor service * * ”, maintains the playgrounds and ball fields in these parks, spending $14,000 for that purpose in 1958; that the city has granted a franchise to the St. Louis County Water Company to provide water; that it has an arrangement with a private contractor who furnishes garbage and refuse collection; that the city has a building regulation requiring lots to be at least 6,000 square feet with a ‘‘30 foot property line”, and only single family dwellings or duplexes can be constructed; that there is a Board of Adjustment; that assessments are made by the County of St. Louis and in 1959 were “$10,-579,550 and on personal property $3,261,-320”; that the city has a health commissioner on a part-time basis; that the city maintains a city hall and two garages; and that the elected officials of the city consist of the mayor, the aldermen and a police chief. The trial court further found that the streets of the city are mostly of concrete, were built by the original developers; that while the city has built no new streets it has provided repair and maintenance for which in 1958 it spent $20,919.13 of which $13,284.-36 came from funds supplied by St. Louis County; that the city has 5 regular employees with 3 part-time employees who work only during certain times of the year; that there is a city engineer; that the police force consists of 3 full-time officers in addition to the chief, and 15 part-time officers; that " * * * Certain police services are provided under contract with the County of St. Louis for calls and radio communication * * * ”; and that the city raises revenue in addition to the real estate and personal property taxes from a merchants’ license, a gasoline tax of one cent a gallon, a $3 per vehicle wheel tax, liquor permit tax-and dog licenses. The city is also served by the Metropolitan Sewer District.

Section 71.015 RSMo 1959, V.A.M.S., the so-called “Sawyer Act”, provides that the petition in an action brought under its provisions shall state facts showing (1) the area to be annexed; (2) “That such annexation is reasonable and necessary to the proper development of said city;” and (3) the ability of the city to furnish normal municipal services of the city to the annexed area within a reasonable time after annexation. This section also provides that the action to be brought thereunder shall be a class action under the provisions of Section 507.070 RS Mo 1959, V.A.M.S.

As to the first requirement of § 71.015, supra, the defendants’ position was that the proposed area was not unincorporated land. In City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275, this court held that a finding that the proposed area was unincorporated land was jurisdictional. The defendants urge that any area lying outside of the present city limits of the incorporated municipalities in St. Louis County is incorporated in the County of St. Louis. This was the theory presented by the defendants in the City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275, and which, because of the constitutional questions properly presented in the consideration of that theory, resulted in the transfer of that case by this court to the Supreme Court. That matter has now been resolved, and the defendants’ contention in this regard has no merit, City of Olivette v. Graeler, Mo., 338 S.W.2d 827. But the city contends that since the opinion in the Olivette case was handed down some eleven and a half months after the instant case was tried, and since in the city’s view of the Olivette case, “The Supreme Court apparently broadened the scope of review * * * ” to provide for a comparison of the 'city’s services as weighed against the same services when performed in the proposed area by the county, the instant case should be reversed and remanded so that the city can present its evidence in the light of this new requirement. The transcript discloses that in fact such evidence was offered and is now before us. For example, the Superintendent of the County Police Department gave extensive testimony covering the facilities of that department, the training of his men, the area they cover, and similar matters. He was cross-examined at length and in particular with regard to the number of men he had in this particular area, and counsel specifically asked him, “In your opinion, is that adequate police protection for that area?” The city also inquired as to the police cars required to cover the area and pressed the question of adequacy to the point where the superintendent admitted, “We do not have sufficient cars or sufficient manpower”, and in effect testified that if any area was taken into an incorporated city in the county, it would result in better protection for other areas, as “ * * * it is a basic fact that the more men you have to patrol a smaller area the better you can cover the area.” The director of sanitary engineering also testified that his department served the proposed area. Upon cross-examination, this witness was extensively questioned as to the number of men he had in the department, their training, how many restaurants they inspect, how often, and the procedure followed upon a recommendation by the inspector. Evidence as to the competency of the city’s department was also introduced. Moreover, the county highway engineer testified as to the amount the county spent on maintenance in the proposed area, how often the streets and roads in the area are inspected, and other similar matters and was cross-examined at length regarding the services performed in the proposed area by his department of the county government. There was evidence as to the existence of a county building inspection department, planning commission, health department, hospital department, and legal staff. The planning director testified concerning the operations and services of his office, as did the deputy zoning enforcement officer, who was cross-examined on the work load of his staff. There was other similar evidence from the standpoint of both city and county services that need not be further stated here. We do not rule the question of whether the city’s statement regarding the effect of the opinion in City of Olivette v. Graeler, Mo., supra, is accurate for the reason this record clearly shows that evidence was in fact adduced upon the issue of the comparison of the services offered to be extended to the proposed area by the city and those services presently afforded the proposed area by the county. The door to the admission of all such evidence was thereby opened and not only is there sufficient evidence now in the record from which to determine the issue, but the parties cannot now be heard to complain that they did not then avail themselves of their opportunity to present all the evidence on the issue.

The second reason the defendants contended that the proposed area was not unincorporated land as required by § 71.015, supra, was because at least a part thereof was the subject of annexation proceedings instituted by the Town of Bridgeton. As to this contention, the trial court found * * * that said incorporation was not pleaded * * * ” but paragraph 4 of the defendants’ answer states that “ * * * The said described area is incorporated into the Town of Bridgeton and is not unincorporated area.” It was pleaded.

The transcript discloses that Bridgeton passed several ordinances dealing with annexation of at least a part of the proposed area. Just exactly what portion of the proposed area was included cannot be ascertained from the exhibits filed, nor from the transcript. Counsel for both parties repeatedly failed to refer to the exhibit upon which the witnesses traced out the boundary covered by Bridgeton’s ordinances of annexation. The tracing was done with the finger, and so there is no marking on any of the exhibits to be of assistance. Moreover, the maps filed as exhibits do not sufficiently detail the area to allow one reading the Bridgeton ordinances from the transcript to translate the boundaries as therein stated' to the maps filed as exhibits and thus exactly determine the area described in the ordinance. It further appears from the transcript that an action was filed by the City of St. Ann in the Circuit Court of St. Louis County to contest the annexation by Bridge-ton of that portion of the area covered by Bridgeton’s annexation ordinance which lies within the proposed area which the City of St. Ann here seeks to annex. After the filing of that action by the City of St. Ann, Bridgeton passed Ordinance No. 305 which recited the filing of the action in the circuit court, and immediately thereafter stated:

“WHEREAS, the City of St. Ann and The Inhabitants of the Town of Bridgeton wish to compromise and settle such litigation, and in so doing the Town will relinquish its rights to a portion of the area annexed by and described in its Ordinances numbered 267 and 277 * *

This clause of the ordinance was then followed by the provision,

“ * * * That the area set out and described in Ordinances No. 267 and No. 277 be modified and amended by changing the legal description to read as follows: * *

The transcript further discloses that the deputy town clerk of the Town of Bridge-ton then was asked this question: “None of the area within the red line was included in the Town of Bridgeton by this ordinance? ” and she answered that it was not. Again, what area, within what red line, on what exhibit, is not stated, nor are there earlier references to the exhibit referred to in the transcript, but the map exhibits filed show that the proposed area is outlined in red, and it is a fair inference that the question meant none of the proposed area. The ordinance then stated:

“Section 2. That the Legal Counsel representing the Board of Trustees and The Town be authorized and directed to cause to be entered up a Consent Decree in Cause numbered 219,052, entitled ‘State ex rel Dalton, etc., v. Town of Bridgeton’ which will modify the extension of the Town’s boundaries in accordance with the legal description set out in Section 1 hereof.”

It would seem from this evidence that the Town of Bridgeton and the city have no present conflict as to annexation of any portion of the proposed area, yet this matter was hotly contested at the trial, and certainly remained in the case to the point where the trial court felt compelled to rule upon that which it previously held as not pleaded. The trial court made its declaration of law that “ * * * in point of time the ordinances in reference thereto came after the initial ordinance of the plaintiff municipality.” This is an adoption of the prior time doctrine. The city’s counsel urged this doctrine as applicable, relying upon State ex rel. Industrial Properties, Inc. v. Weinstein, Mo.App., 306 S.W.2d 634. That case specifically holds the prior time doctrine applicable (see 306 S.W.2d at loc. cit. [3-5], pp. 636, 637) only where two public bodies contending for the same area have completed all steps required by statute to acquire territory, including the entry of the declaratory judgment, for which § 71.015, supra, provides. All of the municipalities there involved were admittedly subject to the Sawyer Act. In the instant case, the parties have tacitly agreed that the provisions of § 71.015, supra, are not applicable to the Town of Bridgeton, incorporated under a special act of the legislature in 1843, and operating under the provisions of Chapter 81 RSMo 1959, V.A.M.S., the special annexation statute being Section 81.080 RSMo 1959, V.A.M.S. In its brief the city states, “This Court can take judicial notice of the statutes governing annexation by special charter towns (Sec. 81.080, RSMo 1959), which does not require judicial review of Bridgeton’s action, its compliance with the Sawyer Act, or a vote of the citizens of Bridgeton before it may proceed with the annexation. The passage of the Bridge-ton ordinance is sufficient to place the annexed area within the corporate limits of the special charter town, known as the Inhabitants of the Town of Bridgeton, unless the City of St. Ann is successful in this action.” But regardless of whether § 71.-015, supra, is applicable to Bridgeton or not, the doctrine of prior time is of no assistance to St. Ann because, as specifically held in State ex rel. Industrial Properties, Inc. v. Weinstein, Mo.App., supra, not even the City of St. Ann, to which § 71.015 is applicable, has completed all the steps required of it by § 71.015, supra, in that the declaratory judgment which it herein seeks had not been entered.

As previously stated herein, in City of Olivette v. Graeler, Mo.App., supra, this court held that a finding that the proposed area was unincorporated land was jurisdictional, and this ruling was affirmed by the Supreme Court upon transfer of that case. See City of Olivette v. Graeler, Mo., supra. Obviously at least a portion of the proposed area was incorporated within Bridgeton unless Ordinance No. 305 is valid and is given full force and effect.

It has been held with respect to other classes of municipal corporations that the invalidity of an ordinance must be raised at the first opportunity, Frank v. Wabash Railway Co., Mo., 295 S.W.2d 16 at page 21, and this is equally applicable to the ordinances of a special charter city. The allegation in defendants’ answer that “ * * the said described area is incorporated into the Town of Bridgeton and is not unincorporated land” is in effect a pleading that Ordinance No. 305 was invalid. Moreover, as soon as the issue was raised in evidence the transcript discloses that defendants’ counsel made prompt objection upon the ground that Bridgeton was not authorized by the statutes or otherwise to pass Ordinance No. 305 and thus “disannex”, so to speak, this disputed area. The defendants raised the point at their earliest opportunity.

Defendants’ counsel attacks the validity of this ordinance and its admission into evidence on the grounds that the file in the proceeding in the circuit court between St. Ann and Bridgeton was introduced into evidence and fails to disclose that the consent decree provided for by the terms of Ordinance No. 305 was ever entered. The whole purpose and intent of this ordinance was to compromise litigation pending between the two municipalities by Bridgeton’s withdrawal of any claim to any of the area St. Ann seeks to annex. The amendment in Ordinance No. 305 of the boundaries stated in the previous ordinances effectively did so. The fact that this compromise was not spread upon i2ie records of that case in the circuit court could not affect the validity of the ordinance.

The attack upon the validity of this amending ordinance was also based on the contention that Bridgeton had no authority to pass such an ordinance. In this connection it should be pointed out that there is no contention in this case dealing with the unreasonableness of the ordinance nor the soundness of the trustees’ exercise of discretion in enacting it. What is here presented is their legal power to enact such an ordinance. The general rule is that municipal corporations are creatures of the law and have no powers other than those expressly or impliedly granted to them by law. See Missouri Digest, Municipal Corporations, ^57. The act of the legislature incorporating Bridgeton is found in Laws of Missouri, 1842-43, Twelfth Assembly, at page 380. The first section thereof provides, among other things, that Bridgeton “ * * * may sue and be sued * * Certainly such a provision by necessary implication gave to Bridgeton, acting through its proper authorities, power to settle and compromise such litigation as it may bring or, as in this case, may be brought against it. Section 5 of that Act provides Bridge-ton with the power to, among other things, “ * * * pass all ordinances to carry into effect the objects of this act, and the powers herein granted, as the good of the inhabitants may require * * This is a clear recognition of the right of Bridgeton to pass such ordinances as its governing body in the exercise of its said discretion deems necessary to the proper and efficient function of the town. Moreover, § 9 of the Act provides that, “All ordinances passed by the board of trustees shall continue in force until altered or repealed * * This is another clear recognition of the right of the trustees to amend ordinances which they determine in the exercise of their sound discretion that the forces of time and circumstances require amending to conform with the city’s best interests.

We therefore hold that Bridgeton had authority to enact Ordinance No. 305, compromising and settling the dispute between that Town and St. Ann, and that this ordinance was in full force and effect although the consent decree provided for therein was not entered. It follows that since the evidence is undisputed that this ordinance removed any claim by Bridgeton to any portion of the area which St. Ann now seeks to annex, the proposed area is unincorporated land, the defendants’ other contention that it is not such for the reason that it is incorporated in the County of St. Louis having been disposed of adversely to defendants by City of Olivette v. Graeler, Mo., supra. The City bore its burden of proof as to this requirement of § 71.015, supra.

The second requirement of § 71.015, supra, is “That such annexation is reasonable and necessary to the proper development of said city * * One of the effects of the passage of § 71.015, supra, was to shift the burden of proof from the opponents of annexation to the city proposing it, City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546, at loc. cit. [1] on page 551, and concerning the burden of proof prior to the passage of this section. See Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236 at loc. cit. page 248. In the instant case the city has the burden to prove, as it was stated in City of Olivette v. Graeler, Mo., supra, at loc. cit. pages 836-837, of 338 S.W.2d:

“ * * * two separate but closely related concepts; that is, (a) that the annexation is reasonable, and (b) that the annexation is necessary to the proper development of the city. The plain language of the provision makes evident the legislative intent. To say that the annexation must be 'reasonable * * * to the proper development of said city’ is confusing and tends to preclude a judicial inquiry into the reasonableness of the annexation from the standpoint of the area to be annexed. Both parties are entitled to the test of reasonableness. City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, 516 [3, 4], To hold otherwise might render the Act vulnerable to an attack as to its constitutionality. See 16A C.J.S. Constitutional Law § 604c, p. 726.”

In City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, at loc. cit. [6, 7] at page 9, the court held that in annexation cases the requirement of necessity becomes a part of the reasonableness of the annexation even as it was before the passage of § 71.015, supra.

In the annexation cases which the appellate courts of this state have reviewed since the passage of the Sawyer Act, it has been repeatedly stated that the cases prior to the Act may furnish general guides as to the determination of the issues presented. For example, see City of Wood-son Terrace v. Herklotz, Mo.App., 349 S. W.2d 446 at loc. cit. [2, 3] page 448; City of St. Joseph v. Hankinson, Mo., 312 S.W. 2d 4, supra, at loc. cit. [13, 14] page 17. In the cases decided before the Act, a case of reasonableness was made, as it was stated by this court in Dressel v. City of Crestwood, Mo.App., 257 S.W.2d 236, supra, at loc. cit. page 249:

“ * * * where it appears that the land annexed is so situated as to be adaptable to urban purposes, and necessary or convenient to a reasonable exercise of the city government.”

In City of St. Joseph v. Hankinson, Mo., supra, at loc. cit. [6, 7] page 8 of 312 S.W. 2d, the court held that the legislature is presumed to have used the words in § 71.-015, supra, in the light of the definition and construction of those words in the opinions of that court prior to the passage of the Act. The court further held at that same citation:

“⅝ ⅜ * ⅛ hag been the universal rule that the court does not, in any sense, substitute its discretion or judgment as to the advisability or propriety of the annexation for that of the legislative body of the city, and that it does not review the legislative discretion; its consideration of ‘reasonableness’ is confined to a determination of whether there exists a sufficient showing of reasonableness to make that question, at the least, a fairly debatable one; if there is such, then the discretion of the legislative body is conclusive. [Citing cases.] The function of our courts, historically, has been merely to determine, in the light of these principles, whether the exercise of the legislative powers has been arbitrary and clearly unreasonable. (See the cases just cited.) Only to this extent do our courts consider the reasonableness of an annexation.”

There is therefore no difficulty as to the city’s burden of proof as to the showing of reasonableness as far as the city is concerned. It is the same as before the passage of § 71.015, supra. The burden is met when the city introduces proof that raised a fairly debatable question, City of St. Joseph v. Hankinson, Mo., supra. Accordingly, the trial- court’s finding that “ * * * It has not been shown that the expansion is vitally necessary to the survival or well-being of the incorporated city * * * ” is unwarranted and results from placing a burden of proof upon the city beyond that required by § 71.015, supra, as interpreted by the cases above cited. The evidence in this case certainly meets the requirement that the wisdom of the annexation from the city’s standpoint is debatable, and accordingly we cannot hold the exercise of that legislative power by the city council to have been arbitrary or unreasonable.

The city’s burden is to also show that the annexation is reasonable as to the proposed area, City of Olivette v. Graeler, Mo., supra. It should be noted in this regard that no city council acting for the residents of this area has adopted any ordinance or otherwise spoken as to this annexation so that the judicial function is restricted to a determination of whether the exercise of power by that body was arbitrary and clearly unreasonable. But this does not mean that a different amount of proof should be required of the city as to showing the annexation reasonable to the proposed area. What the judicial inquiry is directed toward is one act of the city’s council. It is true that the inquiry is two-pronged: that is, the one legislative act of the city’s council is viewed in two aspects, reasonableness to the city, and reasonableness to the proposed area, but it is one legislative act. Thus it follows that the reasonableness of both aspects of the city council’s act is subject to the same burden of proof. Accordingly, when the city’s proof raises a fairly debatable issue as to the reasonableness of the annexation as viewed from the aspect of the proposed area, it has sustained that burden required of it by the provisions of § 71.015, supra. See City of Lexington v. Shepard, Mo. App., 344 S.W.2d 308 [1]; City of Aurora v. Empire District Electric Company, Mo. App., 354 S.W.2d 45 [3]; City of Woodson Terrace v. Herklotz, supra. All of these cases were decided after the Graeler case.

Such an interpretation is consistent with the purpose and intent of the legislature in enacting § 71.015, supra, as that purpose and intent has been construed by the Supreme Court of this state. In City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, supra, at loc. cit. [8], page 9, the court held:

“[8] We construe § 71.015 as merely giving to the courts, in advance of a consummated annexation, the same judicial power and authority to test the reasonableness and necessity for an annexation which they have always exercised after its completion; that is to say, to decide whether the legislative declaration by the city is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power. Considered in this light, the change is procedural, and the legislature has not delegated to the courts the power to determine reasonableness or necessity in the first instance, as would a legislative body. We believe that our construction fairly reflects the intent of the legislature. Such a construction is certainly more reasonable than any other when we recall that the general annexation statutes, giving broad original discretionary powers to cities generally, are unrepealed. In our present view the old and new statutes are in harmony. * * * ”

The opinion in the St. Joseph case was reaffirmed in the City of Olivette case. This is the ruling on the point in City of Olivette v. Graeler, Mo., supra, at loc. cit. [18, 19] page 837 of 338 S.W.2d where the court held:

“ * * * The issues of reasonableness and necessity as well as the other fact questions in a Sawyer Act case should be determined in the same manner that such issues are decided in other actions. The courts perform a similar function in reviewing orders of the Public Service Commission which is essentially an agency of the legislature exercising law-making powers. (Citing cases.)” (Emphasis supplied.)

The scope of judicial inquiry in reviewing orders of the Public Service Commission is well recognized as limited to a determination of whether or not the decision of the Commission was reasonable and lawful (see Missouri Digest, Public Service Commission, <®=532). In this regard, the transcript discloses ample evidence pro and con upon this issue that would cause reasonable minds to differ as to the conclusion to be reached, and therefore either way the city council decided would not be unreasonable, City of Woodson Terrace v. Herldotz, Mo. App., 349 S.W.2d 446 at loc. cit. [2, 3] page 448, and cases there cited.

In the opinion in City of Olivette v. Graeler, Mo., supra, at [20], page 837 of 338 S.W.2d, it was said that the aids and guides developed by the cases occurring prior to the effective date of § 71.015, supra, are still helpful in arriving at a decision on the ultimate fact questions, “ * * * Nevertheless new laws and modern economic and social trends must be taken into consideration and each case must depend on its individual facts and circumstances.” This was followed by a discussion of the growth of St. Louis County and the large number of incorporated cities existing within that county and competing for the relatively small unincorporated area that is still available and suitable for annexation. Then at page 838 of the opinion the court, in its discussion of these matters, stated that “It would seem to be in order for the court to consider what the ‘proper development’ of a city is in these circumstances as an element of the issues of necessity and reasonableness.” (Emphasis supplied.) Later in that same opinion at [21], page 838, the following appears:

“The legislative trend has been to vest counties with greater authority to perform services of a local or municipal nature. This permissive legislation and the extent to which it is used must be taken into consideration in determining whether the annexation is authorized. The interest of the county as a community must be weighed against the claims of the city because the county’s municipal powers are also provided by law and are a part of the public policy of the state. Attention should be given to the needs of the area for municipal services, whether they are adequately cared for and whether they should be supplanted by those of the city.” (Emphasis supplied.)

The trial court stated in its memorandum opinion that it had withheld its judgment in this case until the opinion in the Olivette case had come down, but there is no holding or finding by the trial court relating to this issue. The trial court’s findings and conclusions of law were made only with respect to the relative benefits or detriments to the city and to the residents of the proposed area.

It is true that the city in the instant case did not specifically allege that the interest of the county as a community when weighed against the claims of the city authorizes or compels approval of this annexation. Such an allegation in the petition is not necessary, in view of the earlier statements that this matter is an element of the issues of necessity and reasonableness. It would be encompassed within the allegations of the petition as to those issues, City of Olivette v. Graeler, Mo., supra.

When the statement in the Olivette opinion as set out above, to which we have supplied emphasis, is considered in context with the whole opinion, as it must be, and especially when that sentence is read with those that immediately precede and follow it in the excerpt from the opinion quoted above, we think it clear that what was referred to was the interest of the county as a community with respect to the furnishing of municipal services to the proposed area and the comparison of those services with those which the city could offer the proposed area, should annexation be accomplished. As has been held earlier herein, this issue was in the case, was developed, and was available for any further development the parties desired.

We therefore hold that the city bore its burden of proof as to the second requirement of § 71.015, supra, as that requirement has been interpreted by the Supreme Court of this state, City of Olivette v. Graeler, Mo., supra.

The third requirement of § 71.015, supra, was pleaded in Paragraph 6 of the city’s petition. The motion to dismiss made by the defendants at the close of all the evidence gave as one of the reasons therefor that the city had “ * * * failed to carry the burden of proof of the ability of the city to furnish services.” This transcript is unusual in that the interrogatories and answers to the interrogatories were made a part of the transcript although they were never introduced into evidence. They were filed in the trial court, and since they are a part of the transcript which has been signed by both counsel, they are before us for our consideration. Interrogatory No. 61 was, “What municipal services is plaintiff able to furnish ‘to all parts of said unincorporated area’ as alleged in Paragraph 6 of the petition herein?” For answer to that interrogatory it was stated that the city will furnish all municipal services to the area which are now being given to the present residents of the City of St. Ann, including police protection, street maintenance, use of city parks, the summer playground program, street lights, garbage and refuse collection. It was further stated in that answer that the present services of the city would be “enlarged” to take care of the proposed area. The city also alleged in paragraph 6 of its petition that it would, within a reasonable time after annexation, extend additional services to the proposed area, and Interrogatory No. 62 asked what additional services the city expected to be able to extend. The answer dealt with the study the city was making at the present time for the building of an outdoor swimming pool, and its consideration of the building of a community center to provide “ * * * quarters for a year round supervised program for the children and teenagers of the City * * *.” Interrogatory No. 63 asked, “How long is the reasonable time referred to in Paragraph 6 of the Amended Petition herein ?” The answer was placed on the basis of the city’s performance in extending its municipal services to the area covered by the previous annexation. This annexation was effective on April 1, 1958, and the garbage and rubbish collection service of the city was extended to the newly annexed area on May 1 of that year. It was further stated that within five months the area then annexed had been furnished with street lights and that police services in the newly annexed area went into effect the day after the annexation became effective. However, we are not confined to the interrogatories for proof on this matter. The city, by Ordinance No. 246, unequivocally declared that it is willing, able and ready to furnish its normal municipal services to the proposed area within a reasonable time. This court held such a declaration to be important in the determination of proof of the city’s ability in City of St. Ann v. Buschard, supra, (299 S.W.2d 546) at loc. cit. [5-6], page 553.

There is another reason why there was no evidence given by any witness upon this question similar to that given by the fire chief and police chief and other city officials in City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505 at loc. cit. [4] page 510, and [12, 13] p. 518. It is to be remembered that fire protection and water and electrical services are not given by the city in the instant case to its residents, and of course therefore the city could not offer testimony as to the plans for extension of those services to the proposed area. In this connection, we think the motion to dismiss made by counsel for the defendants at the close of all the evidence, giving as one of the bases therefor that the city “ * * * failed to carry the burden of proof of the ability of the city to furnish services” is illustrative of a misconception of the requirement of the statute which permeated the entire theory of the defendants upon this particular point. The statute does not contain any requirement that the city is to furnish normal municipal services. As we said in the City of St. Ann v. Buschard, supra, at loc. cit. [4], p. 552 of 299 S.W.2d, all the city is required to do is to prove its ability “ * * to furnish normal municipal services of said city * * *.” (Emphasis supplied.) This is the very language of § 71.015, supra, and we cannot judicially enlarge upon such a clear expression of the legislative intent so as to require the city to plead and prove its ability to furnish normal municipal services. The wisdom of the legislature in adding the words, “of said city” is obvious, for without them the courts would be enmeshed in determining what municipal services were normal for that particular city.

There was no evidence to support the trial court’s conclusion that there “ * * * is the inference that the expansion of facilities by the city may require outlays that would minimize its present financial position.” The only evidence is that the city had a large tax base, was in excellent financial condition, had at that time and previously a substantial surplus, and had accepted the financial burdens of a previous annexation without difficulty.

Considering the soundness of the city’s financial condition and the inference that the surplus is available to pay for the extension of these services, the evidence of the city’s past action, the answers contained in the interrogatories, and the declaration of policy contained in the ordinance, we hold the city bore its burden of proof as to its ability to furnish the normal municipal services of said city to the proposed area within a reasonable time after the annexation is to become effective.

Also in consideration of the third requirement set forth by § 71.015, supra, it is to be noted that this is to be a class action under the provisions of § 507.070, supra. The transcript discloses the energetic and able manner in which the defendants’ counsel presented his contention that this petition did not properly plead a class action under the provisions of the statute above referred to, nor was there proof of the requirements necessary to maintain such an action. At the opening of the trial before any testimony was heard, counsel for defendant objected to introduction of any proof upon the specific ground that the petition “ * * * does not contain those allegations which by statute and Supreme Court Rule are necessary for the maintenance of a class action.” Again at the close of all the evidence, counsel renewed his objection.

That portion of § 507.070, supra, with which we are here concerned is found in Paragraph 1 thereof as follows: “If persons constituting a class are very numerous or it is impracticable to bring them all before the court, such of them, one or more, as will fairly insure adequate representation of all may, on behalf of all, sue or be sued, * * See also Civil Rule 52.09(a) V.A. M.R.

The allegations of the city’s petition were,

“That the defendants are inhabitants of the hereinafter described unincorporated area in St. Louis County, Missouri, adjacent to the aforesaid City, residing in various portions of said area, and are fairly representative of the class consisting of the inhabitants of this area.”

So far as the proof of these allegations is concerned, that burden was clearly borne by the city. The testimony was that 28 names were obtained from the Board of Election Commissioners of St. Louis County by giving the Board a list of the streets in the proposed area and requesting the Board to give the city the name of one registered voter on each of the streets. In addition, the testimony was that the defendant Buschard was chosen because he had been active in attempting to defeat the earlier annexation proceeding and was a well-known community leader in the proposed area. The defendants’ attack upon this proof at the trial was that there was failure to show how many of the defendants were still residents of the area at the date of trial, or whether they were homeowners, or other facts about them. A ruling upon that point is unnecessary in this case because it is obvious that nine defendants, at least, remained residents, because they hired counsel and contested the matter. There was also evidence that a tenth defendant filed an answer. In the first City of St. Ann case (229 S.W.2d 546) at loc. cit [10] p. 554, this court held the naming of one defendant, Buschard, also named as a defendant in this case, was compliance with the requirements of the statute and rules. It should also be pointed out that this court has recently considered the matter of compliance with requirements of the statute and rules in Sheets v. Thomann, Mo.App., 336 S.W.2d 701, and when the proof in this case is considered in the light of our holding therein as to the requirements contained in the words “fairly chosen” and "adequately” represent the class, it is obvious that the statute and rule were complied with. Moreover, the determination of what number is required to insure adequate representation rests ultimately in the sound discretion of the trial court, City of St. Ann v. Buschard, supra, at loc. cit. [7-9] 299 S.W.2d pp. 553-554. In the instant case the trial court found “that the defendants named and served in this action were adequately and fairly chosen and are representative of the class * * In view of their number, their residence in the proposed area at the time of service, the previous connection of the defendant Bus-chard with those opposing annexations to the city, and the vigorous and ultimately successful efforts in the trial court of their counsel, we do not find the trial court’s discretion to have been abused by its findings in this regard, and we also so find the defendants to be such and selected in a manner that complies with the statute and rule.

It follows from what has been held herein that the city met its burden of proof as to all three requirements of § 71.015, supra, and that the judgment of the trial court undoubtedly resulted from the failure of the trial court to limit its inquiry concerning the requirement of that section of our statutes concerning the reasonableness of the city council’s action as viewed from the two aspects of the city and the proposed area to a determination of whether the evidence on such issue raises a fairly debatable question. If the evidence meets that test, then judicial inquiry can go no further. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, supra; City of Olivette v. Graeler, Mo., 338 S.W.2d 827, supra; City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, supra; City of Woodson Terrace v. Herklotz, Mo. App., 349 S.W.2d 446, supra. In this case, the evidence clearly meets the test.

Accordingly, the judgment should be reversed and the cause remanded to the trial court with directions to enter its judgment for the city. The defendants’ motion to strike plaintiff’s brief and dismiss appeal, and motion to strike parts of plaintiff’s brief, are overruled.

The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The defendants’ motion to strike plaintiff’s brief and dismiss appeal, and motion to strike parts of plaintiff’s brief, are overruled. The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment for the City of St. Ann.

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

RUDDY, J., not participating.


text:
    Ida L. CRANFORD, Administratrix of the Estate of Thomas W. Cranford, Deceased, Plaintiff-Respondent, v. Evelyn LANGSTON, Defendant-Appellant.
    No. 31016.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Robert A. Dempster, Jack O. Edwards, Sikeston, for appellant.
    L. D. Joslyn, Joslyn & Joslyn, T. B. Russell, Charleston, for respondent.
   BRADY, Commissioner.

This case was originally tried in the Probate Court of Mississippi County, and appealed therefrom to the circuit court of that county. A change of venue to the Cape Girardeau Court of Common Pleas brought this appeal within our territorial jurisdiction. The issue is between the respondent, widow of Thomas W. Cranford and ad-ministratrix of his estate, and the appellant, daughter of deceased by a former marriage, as to the ownership of a bank account deposited under the style, “Thomas W. Cran-ford or Evelyn Cranford.” The trial court found for the administratrix.

Thomas W. Cranford was 84 years old when the circumstances pertinent here occurred. He was in bad health, had been in the hospital about nine months prior to the occasion in evidence, and was preparing to enter a hospital in Paducah, Kentucky, where the appellant lived, although he was not in fear of imminent death, and had stated that he would not be in the hospital long. The evidence was that the deceased had sold some property to his son, Ernest Cranford, the appellant’s brother, and had received cash in the amount of $3,000 in the transaction.

The testimony given by Mrs. Moss, assistant cashier of the bank in which this deposit was made, was that when the appellant and Ernest Cranford were talking in her presence about the deposit of this money,

“ * * * Evelyn said that they put the money in her name because that it would be up to her to pay her dad’s bills, she was going to place him in a hospital or a nursing home and it would be up to her to pay the bills and to put the money in the account jointly in her dad’s name and her name so that she would be able to pay the bills for his medical expense and I gave her the signature card, set it up that way, Thomas W. Crandall or Evelyn Lang-ston and I asked her at the time if her dad was capable of signing his name. She said he was, she took the signature card — they took the signature card, left and got it signed and brought it back to the bank and I gave them a check book and that was the end of the transaction.”

This witness also testified that the appellant told the witness she wanted the account set up as a joint checking account so either could use it.

The respondent read into evidence certain interrogatories which the appellant answered, including the following:

“In answer to Interrogatory No. 4, the amount of funds in my possession, subject to certain checks issued but which have not cleared the bank, is the sum of $1982.60. I have paid out the following:
“To Whom Paid Date Amount Purpose
Lourdes Hospital Sep. 25th $171.15 Hospital bill of my father.
Dr. S. L. French Sep. 25th 15.00 Dr. bill of my father.
Dr. L. Myre Sep. 25th 15.00 Dr. bill of my father.
McMikle Funeral Home Ernest Cranford for East Prairie Lumber Co. Sep. 26th 496.17 Funeral bill of my father. Oct. 7th 6.68 Account of my father.
Dr. Robert Frazier Oct. 7th 68.00 Dr. bill of my father.
St. Mary’s Hospital Oct. 7th 93.30 Hospital bill of my father.
Bell’s Monument Co. Mr. John Fletcher Oct. 7th 115.00 Monument for my father. Oct. 17th 10.00 Attorney fee for father.
Delta Hardware Oct. 17th .80 Acct. of my father.”

The checks or photostats thereof were not offered in evidence but, referring again to the testimony of Mrs. Moss, it was shown that the check to Lourdes Hospital was signed by the appellant, so was the check to Dr. Myre, Mr. Fletcher, the one to St. Mary’s Hospital, Dr. Frazier, Delta Hardware, the check to Bell’s Monument Co. and the check to the funeral home. There was no testimony as to who signed the check to Dr. French, except the answer to the interrogatory as above set out wherein the appellant stated she had paid out this sum, nor does any check for $15 other than that to Dr. Myre appear on the bank’s ledger sheet or the statement of account, both of which are in evidence here. However, a check for $21.50 does appear thereon, as does a deposit of $6.50, and subtracting these two sums leaves $15.00. It also appeared that these checks were all cleared by the bank after the death of appellant’s father on September 25th. Their total is $991.10, and subtracting that sum from $3,000.00 leaves a balance of $2,008.90. This is the balance in the account as shown on the original ledger sheet and on the statement of account, yet the appellant states she claims only $1,982.60. Since her intent to claim all that is in the account is clear, we must assume that the $26.30 difference is covered in a check referred to in evidence — although the amount thereof is not given — which Mr. Cranford wrote on this account prior to his death, but which has not cleared the bank.

Except for certain interrogatories in which the appellant stated her claim that this money was a gift, the appellant’s evidence was the testimony of Ernest Cran-ford. He testified that after the deed transferring certain property to him had been signed by the deceased and the respondent, and their signatures notarized, Ernest took the notary back to her office and upon his return found his wife and the respondent and the appellant with his father. Ernest’s testimony was that in the presence of those named above the deceased told him to “Take this money to the bank and put it in the bank in my name and Evelyn’s name * * * and get this business over”; that he took the money to the bank where it was counted by the witness Madge Moss, assistant cashier of the First Bank of East Prairie, who gave Ernest a card, respondent’s Exhibit 2, and told him, “Your father will have to sign this.” His further testimony was that he took the card to his father who signed it in the presence of the respondent; that on this occasion the respondent stated, “I don’t want any part of that. That belongs to Cranford and his kids. I don’t want anything to do with that”; and that when his father signed the card, he told Ernest with respect to the money, “I want Evelyn to have this money because she did more than ery other child I’ve got has done for me.” His testimony as to the conversation at the bank was opposed to that given by Mrs. Moss and was that when he took the card back to the bank the appellant asked him, “Why don’t you leave this money here in your name?” and that he replied, “That ain’t what Dad said, he said to put it in your name because he wanted you to have it”; that the appellant said, “No, put it in your name” and that he replied, “I’m not going to do it, that’s the way he told me to do it, put it in your name because I don’t want anything to do with it”; and that appellant replied, “All right”, whereupon he saw the appellant sign the card. It further appeared from Ernest’s testimony that the deceased had once before his marriage, deeded the property Ernest bought to the appellant, who deeded it back to her father, and that this was all the property the deceased owned when he married the respondent; that the deceased had told him that he had enough property to take care of his hospital bill and was not worried about it; that the deceased had been ill for about a year and bedfast for two or three months prior to this occurrence; that the deceased told him that he was getting too nervous to write checks; and that when the money was deposited he took a bank book and the deposit slip to' his father’s home and gave them to the respondent, who said nothing about the way they were made out. Upon cross-examination, certain questions and answers from Ernest’s deposition were read to him, and he admitted that upon deposition he had not said anything concerning the respondent’s statement that she did not want this money.

The trial court entered its order finding that “ * * * The money on deposit in the First Bank of East Prairie in the amount of One Thousand nine hundred and sixty-seven and 6%co ($1,967.60) Dollars properly belongs to the estate of the said deceased.” That court ordered the defendant to “ * * * deliver the aforesaid money in the amounts of One Thousand nine hundred and sixty-seven and G%oo ($1,967.60) Dollars to the administratrix * *

The appellant has briefed three points. She contends the trial court erred in awarding its judgment to respondent because the evidence established a valid inter vivos gift of this money to her; that the evidence established this deposit to be one of “joint tenancy with incident of survivorship”; and that the trial court erred in refusing to strike certain testimony from the record.

Due to the fact that the decision in this case rests in large measure upon disputed facts as related by the witnesses Moss and Ernest Cranford, we deem it necessary to repeat the already well known functions governing our review in cases of this nature. Under the provisions of Section 472.-250 RSMo 1959, V.A.M.S., the trial court heard this case de novo. Our duty upon review is the same as it is in causes of an equitable nature. The judgment is not to be set aside unless clearly erroneous, and we are to give due regard to the trial court’s opportunity to judge the credibility of the witnesses, Section 510.310 RSMo 1959, V.A.M.S.

In support of her first allegation of error, the appellant states in her brief, “The undisputed evidence in the instant case is that the decedent intended to bestow upon the appellant a gift in the amount of $3,-000.00 * * * and gave the son the money for the purpose of transmitting the funds to the daughter, the appellant * * *. The evidence further established that the son did in fact turn the money over to the daughter while in the First Bank of East Prairie and that the son and daughter then deposited the money in said bank.” At another place, the appellant urges “The delivery and acceptance of the above mentioned gift is shown by clear and convincing evidence * * *, not only by the testimony of Ernest Cranford, but by answers to interrogatories which were introduced in evidence by the respondent as part of the court record.” With respect to the answers to Interrogatories 2 and 3 which appear herein, we cannot view these as clear and convincing evidence of such weight as to, in and of itself, sustain the appellant’s contention. Insofar as the testimony of Ernest Cranford is concerned, that testimony is clearly conflicting with the testimony of Mrs. Moss regarding what the appellant told her in the presence of Ernest. It is also weakened by the fact that whereas Ernest contended the deceased had told him his other property was available to pay his expenses and he wanted appellant to have this money, the checks written on the account by appellant were all for her father’s expenses or debts. When we add these factors to the admonition that we are to give due regard to the opportunity of the trial court to judge the credibility of the witnesses, Section 510.310, supra, and consider that both the probate court and the circuit court did not believe Ernest, we are faced with a situation where the sound rules of our review in such cases would be violated by the adoption of appellant’s contentions with regard to a valid inter vivos gift.

Neither can we agree that the trial court erred with regard to appellant’s contention that this record establishes that the bank deposit was one of joint tenancy with incident of survivorship. The appellant realistically concedes that this deposit is not such as to come within the presumption raised by Section 362.470 RSMo 1959, V.A. M.S., but urges that the evidence shows such was the intention, and so there was in fact a joint tenancy with the right of survivorship created. In reviewing the evidence as to this contention, it must be borne in mind that, as stated in Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600 at loc. cit. [1], page 603:

“ * * * But there being no statutory presumption, the burden was upon respondent to show by a preponderance of the evidence that the deposits were made with the intention of creating a joint tenancy therein between Coleman Wayman and herself with the right of survivorship.”

A reading of that case, and of Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, will indicate the evidence and the various factors that led the courts therein to reach the conclusion that such indeed was the intention in those cases. But as indicated therein, it is a factual question. In the instant case, the only evidence upon which the appellant can rely to establish that she carried the burden of showing the intention to create a joint tenancy with right of survivor-ship was that given by Ernest Cranford. As we have heretofore said, we believe the credibility of this witness's testimony was put in issue by the testimony of the witness Moss, and under the circumstances here shown the relative weight of the testimony of either Mrs. Moss or Ernest Cranford was for the trial court before whom they testified. This record fails to show a situation where the decision of that tribunal was clearly erroneous and thus warrant our interference.

However, appellant urges that the testimony of Mrs. Moss is unreliable in view of the fact that the bank for which she worked cashed these checks written by appellant after the death of her father and thus treated the deposit as one with right of survivor-ship. We need not rule whether or not any action taken with regard to the deposit by the employer of the witness after Mr. Cran-ford’s death could in any way constitute a showing of intention on the part of the deceased, or in any way bind the respondent. In any event this circumstance went only, as appellant tacitly admits by raising it, to the weight to be given to the testimony of Mrs. Moss. The trial court believed her testimony with respect to what was said as to how the appellant understood this deposit was intended to be made, and disbelieved Ernest. On the basis of this record we are not justified in holding that it was clearly erroneous to do so.

The last contention raised by appellant is without merit. The transcript does disclose that when Ernest Cranford was recalled by respondent he was, at first, confronted with an effort to impeach his testimony by reading from a deposition to which the appellant’s counsel objected that it was not Ernest’s deposition but was that taken of another person. However, the record also discloses that after the objection was made, respondent’s counsel stated he was mistaken, and went on to read other questions and answers and to ask if Ernest had in fact so stated on deposition. Ernest answered that he had. No objection was made by appellant to these questions and answers. Not only was there no objection, but the answer made by Ernest shows clearly that this time respondent’s counsel was in fact reading from Ernest’s deposition.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

ANDERSON, P. J., WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.