author: RUDDY, Judge.

text:
    Saul L. CUPP, Plaintiff (Respondent), v. Robert MONTGOMERY and Almeda Montgomery, Defendants (Appellants).
    No. 32128.
    St. Louis Court of Appeals. Missouri.
    Sept. 20, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 19, 1966.
    Application to Transfer Denied Dec. 12, 1966.

      Willson, Cunningham, McClellan & Gunn, Jerome M. McLaughlin, St. Louis, for defendants-appellants.
    Edward F. Downey, John J. Delabar, St. Louis, for plaintiff-respondent.
   RUDDY, Judge.

Defendants have appealed from a judgment in favor of plaintiff in the sum of $5,-000 for damages resulting from personal injuries sustained when plaintiff slipped and fell off of the back porch on premises owned and occupied by defendants. Defendants offered no evidence and the case was submitted to the jury on the evidence adduced by the plaintiff.

Plaintiff is the uncle of defendant, Al-meda Montgomery, whose mother is the sister of plaintiff. Defendants are husband and wife and were the owners of and resided at 4813 Roseblossom Lane in Hazel-wood, Missouri. Some time prior to March 31, 1962, defendant, Robert Montgomery, called his wife’s mother and asked her to tell plaintiff to come to the home of defendants to help with the sowing of grass seed in the yard of defendants’ property. This message was conveyed to plaintiff’s wife who in turn told plaintiff. On March 31, 1962, at 12:00 noon, pursuant to the invitation, plaintiff and his wife arrived at the home of defendants. After the noon repast, plaintiff and defendant, Robert Montgomery, started to sow grass seed in the yard. The yard had been dug by a rotary tiller. When this was done is not shown in the record. After sowing the seed they sprinkled water on the ground and, thereafter, spread straw over the ground. As a result of their activities there was mud over most of the yard. Attached to the back of defendants’ home and adjacent to a doorway entrance to the home of defendants was a small platform type porch consisting of a concrete slab, gray in color, which was four or five feet square. The top level of the porch was fourteen inches above the surrounding ground. On the left side of the porch, as you face the house, there were two steps leading up to the porch level.

About 3:00 P.M. plaintiff went into defendants’ home through the doorway referred to above, and in doing so he did not use the steps leading up to the porch. Instead, he stepped directly from the yard to the top level of the porch. His purpose in going into the house was to get a drink of water. Thereafter, he returned to his activities in the yard.

About S :00 P.M. defendant, Robert Montgomery, went into the house and in doing so “ * * * tracked mud * * * ” on the back porch. About an hour later, at approximately 6:00 P.M., plaintiff desiring another drink of water, started to step directly from the yard to the top level of the porch. Again, he did not use the steps. He placed his left foot on the porch, as he explained it, “Right on the edge,” at which time his right foot was still on the ground. As he started to raise his right foot up to reach the level of the porch with both feet, he slipped completely back to the ground and was injured. He looked to see what caused his foot to slip and saw it was some mud on the edge of the porch, which he described as, “ * * * near the color of the porch * * When looking at the mud he could see the impression his foot left as it went through the mud. Plaintiff, when asked to describe the lighting conditions said, “ * * * it wasn’t dark and it wasn’t light, I would say something near dusk, * * He said that both of his feet were not on the concrete porch at the time he fell, only his left foot was on the porch. In his cross examination plaintiff testified that he had been to the home of defendants on a number of occasions prior to this occurrence and had stayed at their home overnight. Also, in his cross examination, plaintiff testified that when he approached the porch he was looking in the general direction of it, could see the porch, but could see no mud on it at that time. When he stepped up onto the porch with his left foot he did not see any mud, but after he fell and looked to see what caused his fall, he said the mud was clearly visible. When asked if that was the only mud he saw there, he answered, “Yes, that is all— I know there was mud there — that is all I could see.” He said he did not have any mud on his shoes because he had cleaned them off on the straw before he started into the house and looked at the bottom of his shoes before he walked in. Inasmuch as defendants do not claim the verdict is excessive we omit all evidence pertaining to the nature and extent of plaintiff’s injury.

Defendant, Almeda Montgomery, was in her home at the time of the fall and after administering first aid to the plaintiff went out and looked at the porch. In describing the lighting conditions she said it was dusk —twilight at the time and that the outside electric porch light was not turned on. She described the color of the concrete as gray and the mud as, “ * * * a kind of a clay mud.” The mud she saw on the porch was, “Kind of on the edge” of the porch and she immediately took a pan of water and a broom and scrubbed it off.

Defendant, Robert Montgomery, did not testify in the trial below. However, over defendants’ objection a statement signed by Robert Montgomery contained in a Request for Admissions made pursuant to Civil Rule 59.01(a), V.A.M.R. was read into evidence. Defendants do not include in their points relied on in this appeal any contention that the statement was inadmissible.

The pertinent parts of the statement signed by Robert Montgomery and read to the jury are as follows:

“My name is Robert Montgomery. My wife, Almeda and I (together with our children) are the owners and occupants of 4813 Roseblossom in St. Louis County, Missouri. On Saturday, March 31, 1962, we were working in our yard seeding and soaking the back yard. We invited Saul Cupp and his wife, Margaret Cupp, to our house to help with the yard work. Saul broke his left leg by his ankle about 6:00 P.M. on March 31, 1962, when he fell on our back porch on a slippery and muddy place where I tracked mud when going into the house about one hour before Saul fell. I didn’t warn Saul about the mud on the porch because I was busy and it was sunshiny and bright when I tracked the mud onto the porch. It was getting dark when Saul fell but we didn’t turn the light on in back. The muddy spot on the porch wasn’t easy to see because it was similar in color to the porch. I guess I could have wiped the porch clean in a minute or two and eliminated! the risk of someone slipping on it, but I didn’t want to take the time to do it because I was busy.”

Defendants in their first contention assert that their motion for a directed verdict at the close of plaintiff’s case should have been sustained for the reason that the evidence established that at the time of plaintiff’s fall he was a social guest or bare licensee and plaintiff failed to prove any actionable negligence against defendants. Opposing this is plaintiff’s contention that he was an invitee, and he further contends that, even if he was a licensee he made a submissible case because of defendants’ active negligence.

Under the facts of this case it is certain that plaintiff was not a trespasser. He was either an invitee or a licensee and if he was injured by the active negligence of defendants it would be immaterial whether he was an invitee or a licensee. In either case defendants would be liable for damages resulting from such negligence. If we were to accept defendants’ characterization of plaintiff’s status at the time of his injury, namely, that of a bare licensee, nevertheless, defendants would be liable if active negligence was committed by them. Where injuries to a licensee are caused by the affirmative or active conduct of another, as distinguished from an existing or passive condition of the premises, the person committing the acts is subject to liability for failure to exercise ordinary care towards such licensee if his presence on the land is known or should reasonably be known to the actor. White v. Burkeybile, Mo., 386 S.W.2d 418; Anderson v. Welty, Mo.App., 334 S.W.2d 132. As said in the case of Anderson v. Welty, supra, (l.c. 137)

“ * * * Numerous Missouri cases have recognized this general rule. As our Supreme Court put it in Menteer v. V. Scalzo Fruit Co., supra, 240 Mo. [177] loc. cit. 184, 144 S.W. [833] loc. cit. 835, a licensee ‘may complain of wanton or intentional injury or active negligence, it is said, but not that the place into which he goes for his own purposes and without invitation was not made safe in anticipation of his unexpected and undesired presence’; or, as succinctly stated in Twine v. Norris Grain Co., 241 Mo.App. 7, 19, 226 S.W.2d 415, 422(7), ‘It is true, of course, that a land occupier is subject to liability for bodily harm caused to a licensee by the active or affirmative negligence of the occupier.’ * * *

We will assume, without so ruling, that plaintiff was a licensee at the time of his injury.

At the threshold of our discussion it is necessary to determine what constitutes active negligence as opposed to passive negligence. First, we point out, it is undisputed that plaintiff’s presence on the property was known to both defendants. Active or affirmative negligence has been defined as negligence occurring in connection with activities conducted on the premises; Wolfson v. Chelist, Mo.App., 278 S.W.2d 39, 47; Anderson v. Welty, supra; Simpson v. Richmond, 154 Cal.App.2d 27, 315 P.2d 435, 437; Potter Title & Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76; whereas, passive negligence is negligence that causes danger by reason of the physical condition of the premises. Anderson v. Welty, supra, or, as we said in Wolfson v. Chelist (supra, 278 S.W.2d l.c. 47) “ * * * negligence which permits defects or causes dangers upon the property. * * *»

In some cases the creation by the licensor of a new danger or the commission of an act which would increase a hazard after entry on the premises has been held to be the equivalent of active negligence. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 822; Ziegler v. Elms, Mo., 388 S.W.2d 839, 841; Warner v. Lieberman, D. C., 154 F.Supp. 362, 365; Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 194 P.2d 706; Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364, 156 A.L.R. 1229; Brigman v. Fiske-Carter Constr. Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773, 776.

In the case of Newman v. Fox West Coast Theatres, supra, the Court said that active negligence is a dereliction of duty and pointed out that a licensee accepts the premises as he finds them when he entered and was entitled to presume that the premises would remain in the same relatively safe condition in which he found them when he entered.

It is now generally held that as to any active operations which the occupier of premises carries on, there is an obligation to exercise reasonable care for the protection of a licensee. Oettinger v. Stewart, 24 Cal.2d 133, 148 P.2d 19, 156 A.L.R. 1221-1238. For further discussion as to “Liability to trespasser or bare licensee as affected by distinction between active and passive negligence,” see 49 A.L.R. 778, et seq.

Summing up what we have said and cited we observe that the proper distinction between passive negligence and affirmative or active negligence is that passive negligence “ * * * denotes negligence which permits defects or causes dangers upon the property. * * *” (Wolfson v. Chelist, Mo.App., 278 S.W.2d 39) and which is permitted to continue or to remain after licensee’s entry and active negligence is negligence occurring in connection with activities conducted on the premises while licensee is present and his presence is known or should be known to the licensor.

Keeping in mind the above distinction we think plaintiff’s injury was the result of active negligence. We are aware, as pointed out by defendants, that plaintiff as a licensee, accepted the premises as he found them when he entered insofar as any defective condition thereon might exist. It is undisputed that the mud on the porch which caused plaintiff’s fall was not there when plaintiff entered the premises. The mud on the porch which caused plaintiff’s injury was carried or “ * * * tracked * * * ” on the porch by defendant, Robert Montgomery, and thereby created a danger and hazard not present when plaintiff entered. The muddy condition of the yard and the mud “ * * * tracked * * * ” on the porch resulted from activities conducted on the premises, namely, the sprinkling of the yard with water after the grass seed was sown. The evidence shows that as a result of the activities conducted in the seeding of the yard, there was mud over most of the yard. Defendant, Robert Montgomery, admitted he “ * * * tracked mud * * *” on the porch where plaintiff fell. He admitted the place where plaintiff fell was “ * * * slippery and muddy * * He admitted he did not clean the mud off of the porch and was aware of the risk of someone falling. He knew of plaintiff’s presence and admits he did not warn him of the presence of the mud. The evidence shows that plaintiff did not know of the presence of the mud. We are aware that the failure to warn, standing alone, is negative in nature (Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 450(8), 55 A.L.R.2d 516); however, when it is coupled with an affirmative negligent act arising out of the activities defendant, Robert Montgomery, was engaged in on the premises, the act being the tracking of the mud on the porch and his knowledge thereof and his failure to correct the condition or to warn plaintiff of the danger, it presents facts from which a jury could find active or affirmative negligence.

We have found no Missouri case involving comparable facts. There are cases involving moving objects causing injuries to a licensee where the occupier of the premises was held liable. However, cases from other jurisdictions involving analogous facts have held the licensor liable, holding there was active negligence.

In the case of Newman v. Fox West Coast Theatres, supra, plaintiff entered defendant’s theatre without paying an admission fee and with the consent of the theatre manager. Plaintiff was held to be a licensee and in that case it was said, “ * * that a licensee may recover for ‘active negligence’ or ‘any overt acts of negligence’ as distinguished from a ‘passive negligence.’ * * * ” It appears that sometime after plaintiff entered the theatre one of the patrons entered the ladies’ rest room because of illness. Apparently because of her illness a condition ensued in which there were wet paper towels and blood on the floor and also considerable water on the floor of the rest room extending to the lavatory door. This condition was reported to the manager who did nothing about the matter. Thereafter, plaintiff visited the ladies’ rest room and upon entering slipped and fell receiving injury. Defendant contended that there was no active negligence established. In holding for the plaintiff the court said at 194 P.2d l.c. 708:

“ * * * In the instant case it may be assumed that respondent, as a licensee, was obliged to accept the premises as she found them when she entered. But she was entitled to presume that the premises would remain in a relatively safe condition in which she found them when she entered. That there was no water or any foreign substance on the floor of the washroom at the time respondent entered the theatre is established by the testimony of defendant’s usherette who inspected the washroom four times that evening. Admittedly the extent of appellant’s obligation to respondent as a licensee was to use ordinary care; but when, after her entrance, there occurred on the premises a new ■condition involving greater risk of injury to a visiting patron, there also arose a new duty of appellant to rectify that condition or to warn such patron of that condition and the risk involved therein. * * * 31

'We can see no material difference between the facts in the above case and those in the ■instant case.

In the case of Anderson v. Cinnamon, supra, the above case (Newman v. Fox West Coast Theatre, supra) was cited to the court by plaintiff in support of a contention that -defendant was guilty of active negligence. In the Cinnamon case the court held that ■plaintiff’s petition did not show a case of active negligence, in that failure of defendant, Barney Cinnamon, to warn the fireman to leave the porch was not active negligence. While the Supreme Court did not say that the Newman case involved active negligence it distinguished it from the case under review in the following words: ■“ * * * defendant allowed water to get on a washroom floor creating an unsafe condition after plaintiff was permitted to come on the premises, * * (Empha-sis ours)

In the case of Union News Co. v. Freeborn, 111 Ohio St. 105, 144 N.E. 595, plaintiff, described as a licensee by the court, in attempting to find her way to a train -which she desired to take in the Union Depot in Cleveland, where she was transferring from another train, entered the restaurant of the defendant, which was located in the depot, and there inquired of an attendant where she could get the train she desired, and, pursuant to the direction, plaintiff then recrossed the room of the restaurant to procure her suitcase, and in passing out of the restaurant to her train, in accordance with the direction given her, she slipped and fell and was injured, such fall having been caused by soapy water on the floor previously oiled, which a workman had placed there after she crossed the room and before she returned, of which condition plaintiff had no knowledge. In affirming the judgment for the plaintiff the court said:

“ * * * As heretofore indicated, evidence in the record supports the claim that the dangerous condition described was a new danger, and was created between the time plaintiff crossed the floor and her return, recrossing the floor of the restaurant at the same place. The claim asserted and supported by evidence was therefore one of active negligence on the part of defendant in placing before the plaintiff a new situation of danger, of which she had no knowledge and of which no attempt was made to apprise her. The principle involved is no different than that applicable, if, under the same circumstances, a flight of steps had been removed from the course she was directed to take, between the time she passed over the steps and her return or attempted return the same way. * * * »

The only difference between the above case and the instant case is that in the cited case the cause of the fall was soapy water, whereas, in the instant case it was mud. A distinction without a difference. In the case of Morrison v. Hotel Rutledge Co., 200 App.Div. 636, 193 N.Y.S. 428, plaintiff was discharged by the defendant hotel company and was permitted to remain overnight in defendant’s hotel. On the following morning she fell and suffered injuries because of a cake of soap on a stairway while she was on her way to get utensils belonging to her and used by her in her work. The lower court dismissed plaintiff’s complaint, and the appellate court in holding that the complaint was improperly dismissed held that the complaint stated a cause of action of active negligence. It was assumed that the complaint showed plaintiff was a mere licensee. The complaint alleged that the soap had been left on the stairway by the scrub woman and the act was one of active negligence.

Defendants’ contention that the trial court erred in overruling their motion for directed verdict at the close of the entire case must be overruled unless there is merit in their contention that plaintiff was guilty of contributory negligence as a matter of law. In support of this they contend that (a) the mud condition causing the fall and complained of by plaintiff was an open and obvious one of which plaintiff knew or should have known; (b) that defendants’ duty was fulfilled when they provided a safe way into the house by means of the steps leading up to the back porch and; (c) that the manner in which plaintiff attempted to ascend to the porch of defendants’ premises convicted him of contributory negligence as a matter of law.

In support of their contention that the condition causing plaintiff’s fall was an open and obvious one of which plaintiff knew or should have known, defendants cite a number of cases. There is no need to discuss these cases. It is sufficient to point out what was said in one of the cases when discussing the contributory negligence of plaintiff, that “ * * * there is no exact test or formula by which it may be determined whether or not a condition is so open and obvious that one is bound to see it. Each case must turn upon its own facts and circumstances. * * * ” Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 630, l. c. 630 and Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 206 S.W.2d 501, 507. As a general rule a person is not required to look for danger when he has no cause to anticipate danger, or when the danger is caused by negligence of another. Elgin v. Kroger Grocery & Baking Co., supra, l. c. 507. The issue of contributory negligence is always for the jury unless, from the whole evidence and all inferences fairly deducible therefrom, when viewed in a light most favorable to plaintiff, the only reasonable conclusion is that he was guilty of negligence proximately causing his injury. Anderson v. Welty, supra, 334 S.W.2d 1. c. 138 and cases cited therein. Applying the aforesaid rule we cannot say that plaintiff was guilty of contributory negligence as a matter of law in the respect complained of. It is clear from the evidence that plaintiff did not know of the presence of the mud on the porch. There was no reason to expect mud to be on the porch because just a few hours before plaintiff had traversed the same course and apparently encountered no mud. There was no reason for him to expect danger from the mud at the time he fell. There is no evidence to show that the presence of the mud was open and obvious to plaintiff or should have been at the time he approached the porch. The jury could have found from the evidence that the mud was of approximately the same color as the cement porch; that it was dusk and approaching twilight; and that the electric porch light was not turned on. Defendant, Robert Montgomery, said it was getting dark when the plaintiff fell and said that the muddy spot on the porch was not easy to see because it was similar in color to the porch. While plaintiff said the mud was clearly visible when looking to see what caused his fall, this is no proof to show it could and should have been seen by him as he approached and ascended the porch. We cannot say as a matter of law that the plaintiff in the instant case failed to act as an ordinary prudent person would act under same or similar circumstances. As said in the case of Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, l. c. 537, “ * * * Where the danger is not so obvious that a person should have seen it in the exercise of ordinary care, failure to discover it is not negligence.’ iji * * »

Nor do we think plaintiff was guilty of contributory negligence as a matter of law for the reasons set out heretofore in (b) and (c). Plaintiff did not exceed the scope of his invitation by stepping up directly on the porch from the ground instead of using the steps. This is not a case where plaintiff had two ways open, one safe and the other unsafe. Of course, if one selects a known unsafe way instead of a safe route open to him, recovery will be defeated. Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958, 961. We cannot say as a matter of law that plaintiff selected an unsafe way to reach the level of the porch. The step up from the ground was only fourteen inches and the evidence shows that plaintiff had successfully negotiated this step without mishap on a prior occasion that same afternoon. Overlooked by defendants is the fact that plaintiff’s fall was not caused by stepping directly onto the porch from the ground, but in stepping onto a place on the porch which contained mud and was made slippery thereby. As we have heretofore said, whether or not plaintiff should have seen the muddy condition of the porch prior to stepping thereon was a matter for the jury’s determination. Stepping up onto the level of a porch fourteen inches above the ground, we cannot say as a matter of law, is an obviously hazardous undertaking. Defendants say that plaintiff should have taken the steps leading up to the porch because they were free and clear of any mud or other foreign substance. We find no testimony concerning the condition of these steps. It is true that when plaintiff was asked if the mud he slipped on was the only mud he saw, that he answered “Yes,” but he also said “ * * * I know there was mud there — that is all I could see.” There is nothing in the question asked and the answer given that indicates he had made any reference to the condition of the steps leading up to the porch. In the case of Buff v. Loch, Mo.App., 396 S.W.2d 263, we were confronted with a somewhat similar factual situation to that here present. In that case defendant asserted that plaintiff was contributorily negligent as a matter of law. We held that the question was one of fact for the jury to determine and denied defendant’s contention. The contention of defendants that the trial court erred in overruling their motion for a directed verdict at the close of the entire case must be overruled.

In their next point defendants complain about plaintiff’s Instruction No. 1. What we have said heretofore sufficiently answers the substance of their first complaint about this instruction. As we have pointed out it is immaterial whether plaintiff is considered an invitee or licensee when he was on the premises. In either case defendants would be liable if plaintiff’s injuries were caused by active negligence.

Defendants’ second complaint about this instruction must be sustained. They complain that the instruction is prejudicially erroneous in that it fails to require a finding that plaintiff had no knowledge of the condition which is alleged to have caused his fall. The instruction is lengthy and we need not set it out. At no place in the instruction was the jury required to find that plaintiff had no knowledge of the condition which caused his fall. This is not disputed by plaintiff and plaintiff in his brief seeks to excuse this failure for reasons that we find insufficient. In our case of Daggs v. Patsos, Mo.App., 260 S.W.2d 794, we said:

“It is clearly the law that absence of knowledge of the dangerous condition, on the part of the plaintiff, is an essential element of plaintiff’s case. The theory of liability in this type of case is that the unsafe condition is known to the owner and unknown to the invitee. There is no liability for an injury from a danger that is obvious or as well known to the invitee as to the owner. * * * ” (Citing cases).

We held that the giving of this instruction that failed to include this essential element of the case was reversibly erroneous and remanded the case for a new trial.

In the case of Hoffman v. Kroger Co., Mo.App., 340 S.W.2d 152, it was contended that the verdict directing instruction was erroneous because it failed to require the jury to find that the plaintiff had no knowledge of the drainage depression on the parking lot. We pointed out that the theory of liability in these cases requires that the dangerous condition must be known to the defendant and unknown to the plaintiff and that absence of knowledge of the condition on the part of the plaintiff is an essential part of plaintiff’s case, citing Daggs v. Patsos, supra. Because of the failure of plaintiff to include in his verdict directing instruction the essential element referred to, we find the instruction is erroneous and the case must be remanded.

In the final point relied on by defendants they contend that the trial court erred in giving and reading to the jury the measure of damages instruction which permitted the jury to consider plaintiff’s loss of income. Defendants contend there was no evidence in the record upon which to base such a finding. In support of this they urge the argument that the only evidence of income offered by plaintiff was that of Unemployment Compensation Benefits which plaintiff testified he was receiving at the time of his injury. Defendants contend that the trial court was in error in permitting this testimony but state that even if it was properly received Unemployment Compensation Benefits are not properly considered as income. In the case of Naeger v. Naeger, Mo.App., 339 S.W.2d 492, we held that plaintiff’s loss of Unemployment Compensation as a result of injuries which made him no longer available for work due to his disability was a proper element of damages to be considered by the jury. For a discussion of our reasons for so holding see the text of the case. This final point of defendants is overruled.

Because of the error in giving plaintiff’s Instruction No. 1 the judgment is reversed and the cause is remanded for a new trial.

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


source: Caselaw Access Project

author: TITUS, Judge. PER CURIAM.

license: Public Domain

text:
    In the Matter of D_and D_. OV and MV, Appellants, v. SV, Respondent.
    No. 8537.
    Springfield Court of Appeals. Missouri.
    Oct. 10, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 31, 1966.
    Application to Transfer Denied Dec. 12, 1966.

      Claude T. Wood, Richland, John A. Honssinger, Lebanon, for appellants.
    Arthur B. Cohn, Waynesville, for respondent.
   TITUS, Judge.

This appeal presents one of the most agonizing of all perplexities that can be cast upon mortal tribunals for determination — how best to resolve hostilities involving innocent children of tender years. The paternal grandparents and would-be adoptive parents of two infant girls are the appellants. The natural mother of the two girls is the respondent. The propriety of the judgment of the Circuit Court of Laclede County, Missouri, permitting the natural mother to withdraw her written consent to adoption is the issue. No complaints are voiced’ as to the jurisdiction of either this or the trial court, nor against the pleadings or procedures had in the circuit court.

S, natural mother of the girls, was seventeen years of age (the best we can figure) when she flew to Pearl Harbor, Hawaii, from her home in Pulaski County, Missouri, to marry J on November 6, 1962. J was then twenty and in the U. S. Navy. Sometime after the nuptials, S returned to Pulaski County to reside with her in-laws and await the arrival of her' first born. The baby girl arrived April IS, 1963, and sometime thereafter S joined J in California where they awaited his discharge from the service. Their second child, also a girl, and a first birthday present for her older sister, arrived April 15, 1964. Upon J’s release from the Navy, he, S, and the two girls returned to Missouri to set up housekeeping in the near vicinity of the homes of both the paternal and maternal grandparents.

The marriage was difficult from the beginning. The cause of the strife is cloudy, but on trial J’s complaints related to the diet S gave the children and her “not being able to take care of the kids and not keeping things up to snuff.” S was concerned with J’s immaturity. The astute judge who tried this case observed there had not “been a breath of suspicion about” S’s “morality. * * * The evidence justifies the finding that S was not the best housekeeper, nor was she the worst. * * * At times she did not keep her children clean. But the proof is not sufficient to conclude that she abused or neglected them. A few times the children were ill, but the illnesses were not due to neglect by the mother.”

Because “J and I were separating,” S telephoned the paternal grandparents on November 11 or 13, 1964, and asked them to get the children as she was leaving. There was no discussion then or later between S and her in-laws as to the conditions under which the grandparents were given custody of the children and the matter of adoption was never the subject of any conversations between them. When the paternal grandfather obtained the children and took them to his home, S went to the home of her parents. The following day S called her in-laws and told them to return the children to her. The request was refused pending ascertainment by the grandparents as to what J wanted done with the girls. J moved in with his parents and S stayed with her parents for the ensuing few days. The two girls have resided with the paternal grandparents since that time.

Sometime during this separation J conversed with a Richland, Missouri, attorney who also represents the paternal grandparents. J also had one or two conversations with S during this period as to how their differences might be reconciled. S’s version of these talks was that J attributed their problems, in part, to the nearness with, which they lived to their respective parents and suggested they should leave the children with his parents until such time as they could establish a home elsewhere and have a place suitable for the children. J’s implications were that S felt she could be a better wife if not hindered by caring for the girls. J admits that at no time during his discussions with S was the word “adoption” used. “As far as ‘adoption papers’ being used while we were discussing it, we didn’t discuss signing adoption papers at the time. * * * I didn’t know this was going to be adoption papers until the next day.” At one time J stated there was “no period mentioned” in these discussions as to “how long a period of time” his parents were to keep the children, although later on he asserted “leaving the children was a permanent agreement.”

On November 16, 1964, J and S went to the offices of the Richland lawyer. They did not confer with the attorney but waited while his secretary typed documents for them to sign. S, who was then probably nineteen years old, admits she was handed the document, read it and signed it. The paper was entitled “Consent for Adoption,” and, inter alia, recited that she, as the “natural mother of said minors, does hereby consent that [the two girls] minors, may be adopted by the Petitioners [paternal grandparents] as their own children * * * and that she understands that said children will become the legal heirs of the Petitioners.”

The paternal grandmother says she had not discussed with her counsel the possibility of adoption before the consent was signed by S, and the paternal grandfather did not contact his lawyer about the adoption before he was called to his office to sign the petition. S testified she signed the paper because she was afraid of J. “He told me before if I didn’t sign these papers, if I didn’t give the [paternal grandparents] the kids or let them take care of them he would either leave town or get rid of me and he didn’t intend to leave town.” About the time S was to sign she started crying. She is “positive” the secretary did not then tell her “Now, you don’t have to sign that,” although this is disputed. S did not remember while she was crying saying, “I want to sign it,” although “I may have.” There is no suggestion the lawyer’s secretary did anything improper or urged S to sign the consent. The mother says she thought the paper meant the grandparents “were going to have guardianship of the children” and she did not then know the meaning of the word “adoption.” S asserts the first time she was aware she had consented to a legal adoption was when she consulted her attorney in February 1965.

When reconcilation was effected in November 1964, J and S first went together to the Lake of the Ozarks for a few days and then departed for Florida. She did not try to visit the girls before leaving Missouri because “J wouldn’t let me.” They stayed in Florida until the first part of February 1965, and resided in a room. Both worked and their income was supplemented by contributions from the paternal grandparents. In February 1965, they went to California where they remained about a week. Much was said in the record concerning the fact S did not write her children (then about twenty-one months of age and nine months old, respectively) during this time, nor attempt by either telephone or letter to communicate with her in-laws. However, the evidence reveals J talked by telephone with his parents most every week while he and S were in Florida and at least one time while they were in California. The lack of success in efforts made to heal their differences may be gleaned from the fact that on February 9, 1965, J walked out on S while they were at a laundry establishment in California leaving her with seventy-six cents in her pocket. This surprise and unannounced departure left S with no idea of where her husband had gone, although she suspected he had gone home to his mother and father. She received financial assistance from a sister in Texas and managed to return to Missouri and the home of her parents on February 14, 1965.

S apparently had not seen the girls since she called the paternal grandparents to come and get them in November 1964. She indicates she had not done so because J either didn’t want her to or wouldn’t let her. Upon deserting S in California, J first returned home and then went to Chicago for a short time. Thereafter, he returned to Missouri and took up residence in the home of his mother and father. On February 19, 1965, J filed suit for divorce in the Circuit Court of Pulaski County. When the hearing in this case was held, commencing August 27, 1965, the divorce suit was pending but no service had been obtained on S. Although in his divorce petition, J asked to be awarded the control and custody of the two girls, in the instant case he testified, “No, I don’t want the control and custody of the children.” It seems clear J was in favor of his parents having the children to the exclusion of S.

Shortly before Easter 1965, S called the paternal grandmother who stated, “She asked if she could see the children and I said ‘S, I don’t see why you want to see the children, they are adjusted now and you knew when you signed those papers that they were final’ and she said ‘Yes, I know that.’ I said ‘The children are in the custody of their father [our emphasis] and’ I said ‘As far as I am concerned you can see them after church.’ ” The paternal grandparents’ petition for adoption (which they executed November 21, 1964) had been filed on January 4, 1965. In 1965 the paternal grandmother was forty-five years of age and her husband was fifty years old. Since leaving S in California, J had contributed nothing to the support of either S or the children.

S’s request to withdraw consent for adoption was filed April 5, 1965. No order transferring custody of the children to the paternal grandparents has ever been made. By stipulation, this case was transferred to the Circuit Court of Laclede County for hearing and determination.

To avoid detail we simply take note that both sides were freely permitted to array before the trial judge all the witnesses they desired to testify on every conceivable facet of the case. They swore fairly well to a stand-off as to whether S’s house was always tidy or unkempt, and whether S had kept the children spotless or, on occasion, permitted the children’s diapers to perform the functions of their office and allowed their cherub countenances to become soiled through play and their unprofessional efforts at eating. Both the paternal and maternal grandparents were shown to be excellent citizens and persons of good repute. The' paternal grandfather and grandmother were both employed and the grandmother’s sister attends to the children while she is at work. The home of the maternal grandparents, where the children would live if custody is given the mother, is suitable, and both the grandmother and a sister-in-law are available to care for the children while S is working. If J would support S and the two girls she testified she would quit work and be with the children full time.

The 1947 enactment of our present adoption code effaced the rule that a natural parent had the absolute right to effectively withdraw his consent to adoption at any time before the decree of adoption was made. Adoption of McKinzie, Mo.App., 275 S.W.2d 365, 370(6); Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68, 73(3), and other authorities there cited. Now, however, the “consent shall be irrevocable without leave of the court having jurisdiction of the child given at a hearing, notice of which has been given to all interested parties.” V.A.M.S. § 453.050(2). Nevertheless, the consent is revocable if leave of court is obtained. In re Mayernik, Mo., 292 S.W.2d 562, 569.

When, as here, the exceptions enumerated in V.A.M.S. § 453.040 do not exist, and “when the person sought to be adopted is under the age of twenty-one years, the written consent of the parents * * * of such person * * * to the adoption shall be required * * V.A. M.S. § 453.030(3); In re K.W.S., Mo.App., 370 S.W.2d 698, 702(1, 2). The consent is jurisdictional, and when the consent to adoption previously given is withdrawn by leave of court, that terminates the proceedings (see Adoption of McKinzie, supra, 275 S.W.2d 365, 373 [13, 14]), and judgment to that effect “is the final determination of the rights of the parties.” V.A.M.R. Civil Rule 74.01.

Our research, which we trust to be more than cursory, has unearthed but four Missouri decisions reported subsequent to the 1947 Missouri legislative session, and which deal with the problems of permitting a natural parent to withdraw written consent to adoption. These cases, in chronological order, are Perkins v. Cowan, Mo.App. (1954), 263 S.W.2d 740; Adoption of McKinzie, supra, Mo.App. (1955), 275 S.W.2d 365; In re Mayernik, supra, Mo. (1956), 292 S.W.2d 562 and In re G.K.D., Mo.App. (1960), 332 S.W.2d 62. The Perkins case involved an appeal by the natural mother after entry of an adoption decree in favor of petitioners. The issue of withdrawal of consent was so compediously treated, the point being dispatched in a single sentence (263 S.W.2d l. c. 742), that the Perkins case serves no useful purpose to our efforts here. The other three decisions assiduously probe the problem presented before us. As it will later become apparent, the state of the proceedings at which the trial court acted on the petition to withdraw consent, the judgment appealed from, and the discretion exercised by the trial court, are considerations of import. The appeal in Adoption of McKinzie, supra, came following “a preliminary hearing to determine whether such revocation should be permitted” and before the trial court had made an order transferring legal custody or entered a decree of adoption. The trial court had permitted withdrawal of the consent. The appeal in this case arrives to us at the same stage of events as in the Mc-Kinzie matter. The order transferring legal custody had been made In re Mayer-nik one year before the natural mother filed her petition for an order permitting the withdrawal and revocation of her consent to adoption; and an order transferring the legal custody of the child had also been made In re G.K.D., supra, prior to the time the mother sought leave of court to withdraw her consent. The request for leave to withdraw consent was denied by the trial court in both the latter two cases. This triumvirate of cases makes certain leave of court to withdraw written consent to adoption will not be awarded for the mere asking or upon the whim of the consenter. Whether leave to recall a consent will be granted or refused reposes initially in the prudence of the trial court having jurisdiction of the child, and leave will be granted only when circumstances warrant and sound judgment requires.

Most all appellate adoption and child custody cases perorate the presumptions of the rights of natural parents to the custody of their children, that a natural parent is usually better qualified to have custody of his or her child, and that adoption statutes are to be strictly construed in favor of the rights of natural parents and austerely applied where the situation involves destruction of the parent-child relationship. Worthy of particular note is the liberal salting each case receives with such truths as “the guiding star of the court” should be the welfare of the child, the “ultimate purpose of adoption is the welfare of the child,” “the welfare of the child is the primary consideration of the court,” and “the welfare of the child should be paramount over all other considerations.” The Scriptural commandment of “Do not sin against the child” is the luminary admonition which radiates in each decision.

Exertions expended to circumscribe the boundaries of judicial discretion in cases where leave is asked to withdraw adoption consent have led to the use of jargon and appellations apropos equity and contract cases of similar, but somewhat different variety. Pursuing fissures dug in contract cases, consent for adoption has been likened unto an offer made by the natural parent to enter into a contract, but which may be withdrawn before it becomes binding by acceptance or before there has been a meeting of the minds. Nealon v. Farris, Mo.App., 131 S.W.2d 858, 861(1,2); French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113, 115(4). Offers and acceptances' relating to the legal custody of children cannot be conducted on the open market, but are only effective under the sanction of the court. Denoting the contract influence, it is said that a “court could lean more readily toward the revocation of consent where it comes before there has been a lawful placing of custody,” or, in other words, before there has been a judicial acceptance or partial acceptance of the natural parent’s offer. Adoption of McKinzie, supra, 275 S.W.2d 365, 373(11, 12). Parallel alludement to contractual situations are discussions to the effect the consent to adopt will be binding if understandingly and knowingly given free of legal fraud and duress, but that a parent will be relieved from the contract (consent) if it be shown there existed fraud, duress, undue influence, mistake, or “a somewhat indefinite and shadowy border area which for want of better words can be called duress ‘by force of circumstances.’ ”

No other legal expression is more loosely used than the term “estoppel” (19 Am.Jur., Estoppel, § 2, p. 600) and it is employed with some laxity in cases of this character. “Equitable estoppel,” as regards withdrawal of consent to adopt, seemingly refers to situations where the would-be adopting parents have acted upon the consent to such a degree the natural parent will be estopped to effect a withdrawal. Near akin to estoppel is the “vested rights” consideration, id est, the intended adoptive parents have somehow become imbued with a vested right to the child and the natural parent will not be permitted to divest .that interest by being granted leave to withdraw the consent to adopt. Also, where time and circumstances have created “ties of affection,” courts are less likely to permit the natural parent to renege on his previous consent.

The period of time to be covered by the trial court in determining whether leave should be granted to withdraw a consent to adopt is another factor for concern. In re G.K.D., supra, 332 S.W.2d 62, 75(6), states, “[T]he rights of the parties are fixed at the time of the consent and the subsequent orders of the court having jurisdiction.” However, this statement was made concerning the question of whether consent of the biological father is also necessary when he subsequently marries the mother of a child born out of wedlock who has previously given her written consent to adoption. David E. Horn, “Adoption—Security and Protection,” Vol. 21, No. 9, Journal of the Missouri Bar (September 1965), p. 406. Both Adoption of McKinzie, supra, 275 S.W.2d 365, 372(9, 10), and In re Mayernik, supra, 292 S.W.2d 562, 572(14) indicate the trial court should not only inquire into circumstances as they existed at the time the consent was given, but should also receive evidence and consider events intervening up to the time of the hearing. “In short, whatever may affect the child’s welfare, whether beneficially or detrimentally, may be considered by the court in ruling upon a petition for adoption.” In re K.W.S., Mo.App., 370 S.W.2d 698, 704.

The fat borrowed from legal and equitable authorities, supra, to lard a lean field of stare decisis in consent to adoption cases would indicate discongruity with the precept a child’s welfare should be paramount over all other considerations. If a child’s best interests were to be served by returning him to his natural parent, the mere lack of legal duress, fraud, or coercion upon the mother at the time she executed the consent should not alone prevent such return. If the natural parent by his conduct has permitted the child to develop “bonds of affection” toward his prospective parents which, if broken, would be injurious to the child, then the so-called doctrine of “equitable estoppel” could be properly applied. As between the natural parents and the prospective parents, no phase of an adoption proceeding is to be employed as a means of punishment and vengeance to the one and reward to the other. In re Adoption of J_, supra, 396 S.W.2d 257, 263; P_D_v. C_S_, Mo.App., 394 S.W.2d 437, 446. Careful consideration of what we have labeled above the triumvirate cases, indicates a conscientious, concerted effort to serve the welfare of the child as opposed to a strict application of the legal and equitable principles enumerated above. However, this does not imply the rights of the natural parents or the rights of the prospective parents are to be totally ignored. Disregarding the investments of love and devotion made by would-be adopting parents could be as sinister as disregarding the welfare of the child.

Eons would be required to recount the opinions flailing the curial saw that each case must be determined in accordance with its particular facts. Especially is this true of adoption cases where the principle participants in one are no more alike to those in another than their fingerprints. A dissertation on the obvious factual differences existing among the heretofore noted opinions, readily discernible to any reader, would provide nothing but an unwelcome elongation of this opinion.

It is significant, we think, the paternal grandfather did not contact his lawyer about the adoption before he was called to counsel’s offices to sign the petition for adoption and that his wife did not discuss the possibility of adoption with the attorney prior to the time S signed the consent papers. Likewise, in talking with his parents before the consent to adoption was signed, J testified they “just didn’t want the word ‘adoption’ ” and mention of adoption was not made until “after S and I went to a cabin on the lake.” The trip to “the lake” was undertaken after the consent was signed on November 16, 1964. The petition for adoption was not signed by the grandparents until November 21, 1964, and was not filed until January 4, 1965. All of this, plus the fact the word “adoption” was not employed in J’s conversations with S before the date the consent was executed, lends credence to S’s assertions she was unaware of what she was signing and that she did not understandingly and knowingly sign a consent to adoption. These circumstances also raise doubts that any of the interested parties, save perhaps J, understood the machinery for adopting the two girls had been started when the consent papers were signed. This state of the record, taken in conjunction with S’s understanding that she and J were to leave the children only while they went in quest of a new home, make understandable S’s testimony that she thought the paper signed merely served to give the grandparents “guardianship of the children.” Relief from a mistake of fact is frequently an award of equity. If a unilateral mistake of a material fact be grounds for equitable cancellation of an instrument containing a misdescription in a deed (13 Am.Jur.2d Cancellation of Instruments § 32, p. 524), how much more quickly will the conscience of a court be rallied to permit revocation of a consent mistakenly given which effects an unintended conveyance of one’s children !

The much ado about S not seeing her girls since mid-November 1964 is mollified by her assertions J did not want or would not permit her to see them, and the fact that near Easter 1965 (after the adoption proceedings had been in the mill some three or four months) the would-be adopting grandmother with whom J was living, still considered “[t]he children are in the custody of their father.” Such circumstances would not, of course, be conducive to free and ready communication between the mother and the girls and tends to make intelligible the separation.

Even if we disregard S’s recitals of direct threats to her by J, it is to be recalled equity has long relieved parties of contracts made under the influence of apprehensions not amounting to legal duress, and where “advantage has been taken of the fears, the affections, or the sensibilities of a party, equity will grant relief.” Embry v. Adams, 191 Ala. 291, 68 So. 20, 21, L.R.A.1915 D, 1118. The interval between the time the separation commenced (November 11 or 13, 1964) and the signing of the consent (November 16, 1964) was relatively short, and filled with apprehensions, frustrations, and fears for S. Obvious efforts were being made to obtain salvation of the marriage and those, apparently, included consideration of pulling up stakes and moving from an area long the residence of both J, S, and their parents. S was nineteen years of age when the consent was signed, and but for the provision of V.A.M.S. § 453.050(2) (which made the consent binding even though she was not twenty-one), her contract (consent) would have been, at least, voidable. A careful ingestion of these, and other facts of record, would not make a finding that S was subjected to duress “by force of circumstances” when she signed the consent incompatible with the exercise of sound discretion.

Aside from the circumstances immediately attending the signing of the consent to adoption, the trial court could have found (as suggested by the Division of Welfare) it would not be to the best interest of the children that they be denied the love and care of their natural mother in preference to being adopted by the paternal grandparents in whose home they might become confused as to the latters’ dual role of parents and grandparents. The marital turmoil that existed between J and S at the time the consent was signed has subsided. While it cannot be said everything has reached a happy ending, S has apparently matured by the experience, has become adjusted to the conditions, and is now in a position to render unto her daughters motherly care in suitable surroundings. The divergence in age between the grandparents and the age of parents of the children’s contemporaries, which will become increasingly noticeable as time drifts by, could also be a thought that goaded the conscience of the trial judge. The trial court was undoubtedly further compelled by the heretofore mentioned presumptions in favor of maintaining the relationship between the girls and their natural mother. The learned trial judge in his expressions acknowledged the three cases we have cited and discussed. We harbor no reservations that he was aware of all the elements considered in those as well as other authorities when he undertook to duteously divine what was best to do in the interests of the two little girls. It is no mere legal cliche that appellate courts should defer to the findings of the trial court in cases of this character unless the record discloses a manifest abuse of judicial discretion. V.A.M.R. Civil Rule 73.01(d) specifically commands “[t]he judgment [of the trial court on appeal] shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” No matter how expert the reporter, he is helpless to indoctrinate the record with the demeanor and inflections of witnesses discernible to the trained and experienced eyes and ears of the trial court. Unless clearly erroneous and in conflict with the clear preponderance of the evidence, the judgment of the trial judge is not to be disturbed. We have perused and pondered the record. Our conclusion is the trial court’s judgment granting S leave to withdraw her consent to adoption and holding it to be of no force and effect should be affirmed and that the girls should be reunited with their natural mother. It is so ordered.

STONE, P. J., and HOGAN, J., concur.

On Motion for Rehearing or to Transfer

PER CURIAM.

It has been indicated our opinion and holding may be susceptible to an unintended interpretation, so we emphasize the dispute in this case was between the paternal grandparents and the natural mother and concerned the latter’s withdrawal of her consent to adoption by leave of court. We do not undertake to adjudicate the rights as between the natural mother and natural father to the care and custody of the children, nor attempt to impose upon the jurisdiction of any court in which there may be pending an action involving such question. Appellants’ motion for rehearing, or in lieu thereof, to transfer to the Supreme Court .is overruled and denied.

      . In re Adoption of J_, Mo.App., 396 S.W.2d 257, 261; In re Interest of G, Mo.App., 389 S.W.2d 63, 65; In re Adoption of J.M.K., Mo.App., 363 S.W.2d 67, 70; In re G.K.D., supra, 332 S.W.2d 62, 66; In re Mayernik, supra, 292 S.W.2d 562, 569; In re Slaughter, Mo.App., 290 S.W.2d 408, 411-412; In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 472 (En Banc.); Adoption of McKinzie, supra, 275 S.W.2d 365, 369; In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686, 691.

      . Genesis 42:22; In re Neusche, Mo.App., 398 S.W.2d 453, 457; In re C.C. & C., Mo.App., 380 S.W.2d 510, 514, 515; In re K.W.S., Mo.App., 370 S.W.2d 698, 703; In re Adoption of P.J.K., Mo.App., 359 S.W.2d 360, 368; State ex rel. M.L.H. v. Carroll, Mo.App., 343 S.W.2d 622, 625; In re G.K.D., supra, 332 S.W.2d 62, 66 and 69; In re Mayernik, supra, 292 S.W.2d 562, 570; Adoption of McKinzie, supra, 275 S.W.2d 365, 372; State ex rel. Earnest v. Meriwether, Mo., 270 S.W.2d 20, 22; Rex v. Rex, Mo.App., 217 S.W.2d 391, 393.

      . In re Mayernik, supra, 292 S.W.2d 562, 570; In re G.K.D., supra, 332 S.W.2d 62, 69; In re Interest of G, Mo.App., 389 S.W.2d 63, 69; Adoption of McKinzie, supra, 275 S.W.2d 365, 372; Adoption of J.M.K., Mo.App., 363 S.W.2d 67, 74; 2 Am.Jur.2d Adoption § 46, pp. 896-897.

      . Annotation: 156 A.L.R. 1011-1022 (Adoption-Withdrawal of Consent); and cases cited in Footnote 3, supra.

      . V.A.M.S. § 510.310(4); In re Neusehe, supra, 398 S.W.2d 453, 457(7); In re Adoption of J.M.K., supra, 363 S.W.2d 67, 69(1, 2); In re Hyman’s Adoption, Mo. App., 297 S.W.2d 1, 8-9(4r-5); In re Slaughter, supra, 290 S.W.2d 408, 410 (1); Edwards v. Zahner, Mo., 395 S.W.2d 185, 189-190 (3, 4).