author: BRADY, Commissioner.

text:
    Effie SHANKLIN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 31311.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Rehearing Denied Oct. 14, 1963.
    Gerald D. Morris, St. Louis, for appellant.
    Fred B. Whalen, Whalen, O’Connor, Grauel & Sarkisian, St. Louis, for respondent.
   BRADY, Commissioner.

The parties will be referred to by their designation in the trial court. Plaintiff’s action for damages resulting from injuries she sustained while a passenger on one of defendant’s streetcars resulted in a jury verdict for the defendant. Plaintiff’s timely motion for new trial was sustained for prejudicial error in the giving of instructions 14 and 11. The facts will be stated in the light required by the defendant’s jury verdict and limited to those bearing upon the giving of these instructions.

The plaintiff was the last of 6 or 7 passengers to board the streetcar as it was halted at a regular stop. She had nothing in either hand as she boarded except the money for her fare. She dropped her fare into the box without stopping and all of the seats being full, continued walking toward the rear of the streetcar there to join others already standing. After the plaintiff boarded, the defendant’s operator waited another 15 seconds for the electric stop light to change to green. The aisle was clear and the plaintiff was walking naturally, swinging her arms and without holding onto any of the handholds, upright poles or stanchions that were available to her. The operator then released the brake pedal and pressed down on the power pedal. There was a slight incline in the direction he was traveling. When he had gone about 30 feet forward and had reached a speed of about 5 miles per hour, he saw the plaintiff “falling forward past me.” She came in contact with the front of the streetcar with her head striking the rear view mirror and her body hitting the fare box. Plaintiff seemed “off balance” to defendant’s operator.' The plaintiff and her witnesses had testified to a sudden jerk of the streetcar which caused plaintiff to be propelled backward down the aisle to the front of the streetcar. The defendant’s operator denied that any jerk occurred and testified he in no way changed the application of power nor did the streetcar slow or stop. The defendant’s witness, Hollerbach,. testified that a streetcar could start with a jerk only if something was wrong with it.

Instruction 11 was offered by the defendant and, as given by the court, reads as follows:

“The Court instructs the jury that if you find that the jerk and jolt referred to in the evidence was not a sudden, unusual and violent jerk and jolt, but was usual and ordinary movement such as usually and customarily occurs in proper operation of a streetcar in city traffic, then you cannot find in favor of plaintiff and your verdict must be for the defendant.”

Defendant’s theory as to plaintiff’s contributory negligence was based upon plaintiff’s admitted failure to use the handholds, posts or stanchions provided for the assistance of passengers. This issue was submitted to the jury by instruction 14 which first instructed the jury that plaintiff had a duty to exercise “ordinary care” for her own safety and correctly defined that term. It then proceeded as follows:

“ * * * In this connection you are further instructed that if you find and believe from the credible evidence that the plaintiff boarded said streetcar while it was stopped and that the streetcar started up after plaintiff had boarded and was moving as plaintiff walked toward the rear of the streetcar, and if you find that there were upright posts, hand holds (sic), or stanchions provided for plaintiff and within reach and available to her and that she could reach from one to the other as she walked toward the rear of said streetcar, and if you find that plaintiff did not take a hold (sic) of the upright posts, hand holds (sic), or stanchions as she walked toward the rear of said streetcar and that had she done so she could have maintained her balance as she walked through the streetcar even though the streetcar jerked in the manner described by plaintiff, and if you find that her failure to avail herself of these upright posts, hand holds (sic), or stanchions and to hold to them as she walked through said moving streetcar was negligence on her part, and if you find that such negligence, if any, directly caused or directly contributed to cause plaintiff’s damages, if any, then you are instructed that plaintiff was guilty of contributory negligence and she cannot recover herein and your verdict must be in favor of the defendant * *

It is contended that the giving of instruction 11 was prejudicially erroneous for the reason that there was no evidence to support it and also because it was repetitious of instruction 10. With regard to instruction 14, it is alleged that instruction injected a false issue of contributory negligence into this case. The four reasons stated in support of that contention fall more logically into three general categories. The first of these is that instruction 14 erroneously permits the jury to speculate that plaintiff COULD (that word is capitalized throughout the treatment of this point in the brief) have maintained her balance even though the streetcar jerked in the manner she described in her evidence if she had used the upright posts, handholds or stanchions. The second deals with the failure of the instruction to hypothesize facts from which, as plaintiff states in her brief, “ * * * that plaintiff in the exercise of ordinary care knew, or should have known that the streetcar was likely to jerk while she was walking in the aisle.” The last is that this instruction omits an essential element in that it fails to require the jury to find that the plaintiff, having actual or constructive knowledge or appreciation of the danger of injury to herself, failed to use the handholds, upright posts or stanchions.

In the consideration of those allegations of prejudicial error arising from the giving of instruction 11, it is necessary to view that instruction in the light of instructions 7, 8 and 10 also given in this case. Instruction 10 reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that on the occasion in question, the streetcar mentioned in the evidence did not lurch and jerk violently and suddenly and in an unusual and violent manner, then your verdict must be in favor of the defendant.”

The defendant contends that instruction 10 is a converse of instruction 8, In instruction 8, it is hypothesized that the defendant’s operator caused the streetcar to “* * * lurch and jerk violently and suddenly in an unusual and violent manner * * * ” when the operator knew or should have known by the exercise of the highest degree of care that plaintiff was walking in the aisle. It also required the jury to find that as a direct result thereof the plaintiff was injured by being thrown against the fare box and windshield, that this “* * * sudden, violent and unusual jerk and lurch was negligent * * * ” and “ * * * that plaintiff was injured as a direct and proximate result thereof * * * ” and concludes by directing a verdict based upon these findings in favor of the plaintiff.

Instruction 7 was also offered by the plaintiff and those parts of it pertinent to the consideration of this allegation of error read as follows:

“ * ⅜ * The Court further instructs you that if you find and believe from the evidence that the defendant, by and through its agent and servant in charge of and operating the streetcar mentioned and described in the evidence, and upon which plaintiff was a passenger, caused the same to lurch and jerk violently and suddenly in an unusual and violent manner, if so, and that as a direct result thereof the plaintiff’s body was caused to be thrown forward against the fare box and frame work (sic) around the windshield and she was injured as a direct result thereof, if so, then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence upon which the jury may infer that the defendant was negligent and you may so find unless you find and believe from other evidence and from all the facts and circumstances in evidence that said sudden, violent, and unusual jerk and lurch, if any, of said streetcar was not due to negligence of the defendant.” (Emphasis supplied.)

There is no point raised as to the .'giving of both instructions 7 and 8 even though the emphasized portion of instruction 7 would seem to make clear its 'verdict directing nature. It is therefore unnecessary for this court to determine whether one submits plaintiff’s case upon a theory of res ipsa loquitur and the other upon a theory of specific negligence. It is equally unnecessary to comment upon the propriety of giving two verdict-directing instructions in this case. As stated, both of these instructions were offered by the plaintiff. It is elementary that the defendant has the right to submit a converse of whatever the plaintiff submits as grounds for recovery. It is equally fundamental that such converse instructions need not be supported by the evidence since the jury is entitled to find that the facts plaintiff contends justify her recovery did not, in fact, occur. Instruction 7 appears to be a submission upon the theory of res ipsa loquitur, allowing the jury to infer negligence from an unusual occurrence. In this case, the unusual occurrence would be the jerk of the streetcar. It is therefore obvious that instruction 11 is not repetitious of instruction 10. The latter submits a converse of instruction 8 by allowing the jury to find that the streetcar did not act in the manner submitted in that instruction. Instruction 11 submits a converse of instruction 7 by allowing the jury to find that the unusual jerk, upon which a res ipsa loquitur submission must be based, did not occur. It is true that instructions 10 and 11 are somewhat inartfully drawn. This was in part the result of the wording of instructions 7 and 8, both of which refer to a sudden, violent and unusual jerk in almost identical language. We are not to be understood as approving of the form of instructions 7, 8, and 10, nor of the trial court’s action in giving both instructions 7 and 8. Those matters are not now presented for our ruling. Suffice it to say that under the circumstances presented by this appeal and due to the giving of both instructions 7 and 8, we cannot agree that the giving of instruction 11 constitutes prejudicial error.

There is no merit to the contention that instruction 14 injected a false issue of contributory negligence into this case. The theory upon which the defendant based its contention that plaintiff was contributorily negligent was clearly stated in the answer, and the major portion of defendant’s efforts during the trial were directed toward establishing that issue. It has long been the law in Missouri that failure to hold onto an assist of the type mentioned in the evidence does not constitute contributory negligence as a matter of law but raises a question for the jury. Dougherty v. Missouri R. Co., 97 Mo. 647, 8 S. W. 900. The same result was reached in the analogous situation of one disembarking from a train without using the hand assists provided. Stakebrake v. Union Pac. R. Co., Mo.App., 185 S.W. 1166, l.c. 1168 [4]. Under the factual situation here, whether the plaintiff was negligent in failing to hold onto the handholds, posts or stanchions was a question for the jury to determine under proper instructions and cannot be said to be a false issue. Dougherty v. Missouri R. Co., supra.

The contention that this instruction erroneously permits the jury to speculate that plaintiff could have maintained her balance even though the streetcar jerked in the manner described in the testimony if she had used the upright posts, handholds or stanchions available to her, is likewise without merit. As this point is developed in the argument portion of her brief, the plaintiff complains of the failure of the instruction to limit the charge of negligence by the inclusion of a statement of the proper standard of care. In other words, plaintiff would have inserted the words “in the exercise of ordinary care for her own safety” either at the beginning or at the end of this submission in the instruction. In view of the language in the first paragraph of instruction 14, there is no merit to plaintiff’s contention. That paragraph reads as follows:

“The Court instructs the jury that it was the duty of the plaintiff to exercise ordinary care for her own safety while she was a passenger on the streetcar mentioned in the evidence, and by the term ordinary care is meant that degree of care that an ordinary prudent person would use under the same or similar circumstances.”

Having so clearly stated the degree of care incumbent upon the plaintiff in the opening paragraph of instruction 14, it was not necessary to again state that degree of care by adding it to the hypothesi-zations in the instruction as plaintiff contends.

The two remaining reasons why instruction 14 should not have been given have reference to the general subject of the knowledge, or lack of it, on the part of the plaintiff that her omission to use these assists might reasonably be expected to result in some danger of injury to her. These assignments can best be understood if considered together. In so doing, the wording of the submission requiring the jury to find that this plaintiff could have maintained her balance if she had used these assists “ * * * even though the streetcar jerked in the manner described by plaintiff * * * ” should be kept in mind. The effect of this submission was that for the purposes of passing upon the issue of plaintiff’s contributory negligence, the jury was to adopt the plaintiff’s evidence as to the streetcar jerking, the severity of that jerk and the other circumstances surrounding the jerk as testified to by the plaintiff.

The instruction sets out the fact that plaintiff boarded a stationary streetcar, that she was walking when it began to move, that there were handholds, upright posts, and stanchions available for her use, that she did not use them, that had she used them she would not have fallen, and that the failure to use them was negligence which caused or contributed to cause her injuries. The distinction between such a submission and the submission held erroneous in Voyles v. Columbia Terminals Co., Mo.App., 239 S.W.2d SS9, l.c. 562, upon which plaintiff relies, is obvious. In the Voyles case the submission made only required the jury to find that the plaintiff stepped off the curb and remained standing in the street and that in so standing the plaintiff did not exercise ordinary care for his own safety. As pointed out by this court in the opinion at the local citation given above, there was no hypothesi-zation that had the plaintiff remained on the curb he would not have been struck. The jury was “ * * * not required to find any act or omission on the plaintiff’s part that contributed to bring about the accident * * *In the instant case, it was defendant’s theory that failure to use the assists provided was the omission to act upon which the jury might base a finding of contributory negligence. Contrary to the instruction in the Voyles case, this instruction clearly sets out the omitted act, hypothesizes that absent that omission the plaintiff would not have been injured, and requires the finding of that omission negligence.

The plaintiff’s insistence that in one form or another this instruction should have required the jury to find actual or constructive knowledge by plaintiff that her failure to use these assists might reasonably be expected to result in same danger of injury to her is without merit. Due to the inclusion in the instruction of the wording authorizing the jury to accept the plaintiff’s evidence as to the jerk of the streetcar, a requirement of actual or constructive knowledge by plaintiff of the danger of her act would, m effect, require her to anticipate negligence on the part of the operator in allowing the streetcar to jerk. Compare Mallett v. St. Louis Public Service Co., Mo., 308 S.W.2d 720, l.c. 722, 723 [1, 3]; McLaughlin v. Marlatt, Mo.App., 228 S.W. 873, affirmed McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, l.c. 553 [8, 9].

The trial court erroneously granted the plaintiff a new trial. Its order should be reversed and the cause remanded to the trial court with instruction to reinstate the verdict and judgment for the defendant. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The cause is remanded to the trial court with instructions to reinstate the verdict and judgment for the defendant.

WOLFE, Acting P. J., ANDERSON, J., and JACK P. PRITCHARD, Special Judge, concur.


source: Caselaw Access Project

author: J. P. MORGAN, Special Commissioner.

license: Public Domain

text:
    Vera Austin MILLER, (Plaintiff) Respondent, v. ANDY BURGER MOTORS, INC., (Defendant) Appellant.
    No. 30996.
    St. Louis Court of Appeals. Missouri.
    Sept 17, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 14, 1963.

      Robert Lee Campbell, Buckley & Campbell, St. Louis, for appellant.
    Sidney W. Horwitz, Dubinsky & Dug-gan, St. Louis, for respondent.
   J. P. MORGAN, Special Commissioner.

Plaintiff instituted this action to recover for breach of warranty in the sale of an automobile, and defendant has appealed from the resulting judgment entered on a jury verdict for plaintiff in the amount of $2,213.12.

On October 21, 1957, plaintiff agreed to purchase from defendant a new Fairlane 500 Ford automobile, with delivery to be made in a few days. By the testimony of both parties, as well as the invoice dated that day, it appears that the agreed sales price of the new Ford was $3,429.00, payable by a cash payment of $1,275.00, plus a trade-in allowance on plaintiff’s used Chrysler automobile of $2,154.00.

Two days later a sales representative of defendant called that the new automobile was ready for delivery, and that evening plaintiff, accompanied by her sister and brother-in-law, went to defendant’s garage. While there she made the cash payment, and the salesman handed her a copy of the sales invoice and a printed Authorized Ford Dealer’s Service Policy. In addition to providing for a 1,000 mile inspection service, one paragraph captioned Warranty Service provided: “Should the replacement of any part become necessary under the warranty, we, the selling dealer, will make the replacement without charge to you for the part or labor required to replace the part * * On the reverse side, one-third of the page was identified as a Dealer Warranty. It limited. the period covered to 4,000 miles or 90 days from date of delivery. After other exclusions, the last sentence provided: “This warranty is expressly in lieu of all other warranties^ express or implied,” and of all other obligations or liabilities on the part of Dealer, except such obligation or liability as Dealer may assume by its Authorized Ford Dealer’s Service Policy or separate written instrument.”

Plaintiff testified that the salesman suggested a demonstration ride to acquaint her with the car, and apparently her complaints started with the first trip around the block. She thought it had what she described as a burned odor, and was told this was typical of new cars. When they returned to the garage, she inquired as to how to turn on the heater, and as the salesman turned it on, water ran out on the floor. He advised this was from the ventilators as it hád just been washed, but did console her by telling her to bring it back if it caused any trouble. Upon arriving home, she stated that the carpeting on the floor was wet, water was “gurgling”, and that she was unable to turn off either the heater or head lights. By phone she was advised by the salesman to drive to some service station and have the heater disconnected and lights checked. Plaintiff did this, and it was found that the lights were grounded. The station attendant corrected the lights and tied off the heater hose.

The next morning she was at the service entrance of defendant’s garage before it opened as the family had planned a trip for that day. She testified: “ * * * I asked them to give me my Chrysler back and they could have this car 'and they said, no, they couldn’t do it.” She then described defendant’s efforts this day by saying that about five mechanics went to work on it. They took the floor carpeting loose and put lights under it; they found that the motor heated; they removed the heater and after welding it replaced it over plaintiff’s request for a new heater; the inside of the left door was removed and work was done on the channels to allow the window glass to go up and down. She was then advised by the service manager that the trouble had been corrected and she could make her trip.

The car again became very hot on the way to her home, and by phone was advised to start her trip the next day, and to go by some Ford garage if it continued to run hot. She did this, but at another agency, Suburban Ford Motor Company, she was told to take it back to defendant. She did return and was told by the service manager that they didn’t know what was wrong with it or how long it would take to fix it. At this time the salesman with whom she had traded, suggested she make the trip in his demonstrator. After returning three or four days later, she phoned that she had returned and requested they return her car and pick up the demonstrator. Again she was told, “Well, it isn’t ready; they still don’t know what’s wrong with it; they are still working on it.” Further phone calls were followed by a letter to defendant.

Plaintiff testified that a person identifying himself as Andy Burger called on November 13, and among other things said: “Now, I have five representatives from Ford Motor Company in here, and they have told me to pull the motor out of this automobile, one like you purchased, and put in this car.” Plaintiff said she objected and stated she didn’t want a repaired car, but a new one like she had paid for. In any event, someone delivered the car to her on November 18 and put it in her garage, with her comment being, “You are putting this in my garage over my objections.”

From this date until the middle of February, 1958, the car was worked on at various times, with a letter from plaintiff to defendant dated January 6,1958, listing other complaints. They included: continued leak from heater, excessive use of oil, engine “ping”, noise in the rear end, motor skips as if automatic choke cuts in and out, directional signals didn’t work, gas fumes in car, brakes did not hold or operate properly, it drove as if power steering wasn’t working, and a generalized comment that, “In fact, the engine chugs along just like a little toy car and it is hard to tell which is going to fall out first, the front end or the back end.”

Plaintiff testified these difficulties continued, and that she left numerous phone calls at the garage that were never answered by Mr. Burger, with the last being in June, 1958. She did admit driving- approximately one to two thousand miles a month (during the time it wasn’t in the garage), until she left it at defendant’s garage on August 6, 1958. On that date she parked in front and handed the keys to Mr. Burger’s son-in-law. As she was leaving, he threw the keys at her feet. She left the car, but two days later the bank where she had borrowed the cash payment called that the motor company had put the car on their parking lot. Plaintiff then stored it in a warehouse of her employer, and in October, 1958, sold it to Gilbert Buick, Inc. for $1,600.00. She testified to having owned twelve automobiles and driving for forty-one years, before expressing an opinion the Ford had a value of $1,500.00 when delivered to her.

The sister of plaintiff confirmed many of the complaints mentioned. The deposition of one Bob Fry identified him as the owner and operator of a driving school, and he had experienced difficulty with the brakes of this car while driving it in a funeral procession during July, 1958. He testified that he had purchased and sold cars in the operation of his driving school, and thought that the car at that time would have a reasonable market value of $1,500.-00.

The testimony of a William M. Watson was also given by deposition. He was employed by the same company as plaintiff as chief warehouseman. His duties required his participation in the purchase and trade-in of five to ten automobiles per year for his employer. He rode to and from work in a car pool arrangement with plaintiff, and had driven her car several times from November, 1957, to March, 1958. He described the steering by stating, “Well, the steering at that time was rough, you couldn’t get a good steer. It was rough or shaky or whatever you want to call it and it was hard to turn.” This condition was present each time he drove it, and he also mentioned the noise in the rear-end as well as the heater not working. Upon inquiry he expressed an opinion as to the market value of the car as of that time, and he placed it in a range from thirteen to seventeen hundred dollars.

Mr. Burger, for the defendant, testified he knew of plaintiff’s complaints, but indicated the water stoppage was the only one of any significance. He said the block assembly was changed, “because the water wasn’t circulating properly through the block due to some stoppage in the manufacture of the block.” He thought the last time the car was in his garage was January 8, 1957, and after the major repair, “the car drove normal to me.” He also denied any knowledge as to any phone calls allegedly left for him after that time by plaintiff.

After the trial court sustained plaintiff’s objection, defendant made an offer of proof that it followed a custom of the automobile industry by giving a discount on the purchase price of the new car to be reflected in an over-allowance for the trade-in, which in this case defendant claimed to be $750.00, and a further offer to show that the used Chrysler taken in the exchange was in fact sold to some third party for $750.00 less than the amount allowed plaintiff.

The last witness called was the used car manager of Gilbert Buick that had purchased the Ford from plaintiff. He testified that the $1,600.00 paid plaintiff was the wholesale value of the Ford, and that after a minor adjustment on the brakes had sold it to his brother-in-law for $1,900.00.

The verdict of the jury was for $1,829.00 (the exact difference between the original purchase price of $3,429.00 and the resale price of $1,600.00) plus interest of $384.12.

Defendant contends that the trial court erred in overruling its Motion For a Directed Verdict at the close of all the evidence, because (1) plaintiff failed to prove that she had advised defendant of any particular use for which she intended to use the automobile which would justify any finding of an implied warranty; and (2) the evidence showed that plaintiff accepted and relied upon a written express warranty which excluded all other warranties. The latter apparently assuming that defendant-seller had complied with the limited Dealer Warranty delivered to plaintiff-buyer. If that assumption is correct, plaintiff could not recover at all if the law does not impose a warranty that this car was of reasonable fitness for average usage as a new automobile.

The question has arisen in numerous cases involving automobiles that have been shown to be defective in construction or performance, and no requirement has been imposed on a purchaser in such actions to prove that the seller was specifically informed as to any particular use for which the vehicle was purchased. The early case of Harvey v. Buick Motor Company, Mo. App., 177 S.W. 774 said:

“It is well known that an automobile is composed, in part, of machinery which, if not properly constructed or placed, will render the machine unfit for use. The law is that there is an implied warranty that such machines are reasonably fit for and adapted to the use and purposes for which they are made and sold. (Cases cited).”

In a case factually very similar to the instant case this court held, in Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S.W. 2d 830, 1. c. 832: "In the sale of an automobile there is an implied warranty that it is reasonably fit for the use intended.”

The case of Mullins v. Sam Seism Motors, Incorporated, Mo.App., 331 S.W.2d 185, reviews the development of the law of implied warranties. However, in view of defendant’s argument that before any warranty could have been implied, plaintiff should have advised defendant the “particular” use she intended to make of this particular automobile, some comment is required. It is apparent from the evidence in this case that plaintiff intended to use it as an ordinary means of transportation as is customary by the buying public. If “particular” means unique, special, or something clearly distinguishable from ordinary usage, any explanation of anticipated use by her would have been futile and have created no protection against any contingency. With the mechanical complexities of the modern automobile being far beyond the comprehension of the average buyer, even with inspection, fairness demands some protection for the buying public, with at least an assurance a new automobile, although not required to be perfect, will at least give average service. The requirement that there be an affirmative disclosure of a “particular” use as a condition precedent could more reasonably be applied to a purchase which would, in fact, be unique or special, such as stunt driving, track racing, mountain climbing, or any other particular use obviously calling for stress or strain not generally provided for in the original mechanical design of the automobile. The rule as now developed by the decided cases cannot be called an unreasonable imposition on the auto industry, with its continued use of all advertising media to further extend all warranties in the eyes of the buying public.

The further question arises as to whether or not all implied warranties were excluded I by the express written warranty handed (■plaintiff just before she left defendant’s garage. The law on the subj ect is fully reviewed in the case of Mitchell v. Rudasill, Mo.App., decided by this court in 332 S.W. 2d 91, at 1. c. 95, 87 A.L.R.2d 1309, wherein it was said:

“ * * * While it has been stated, as defendant urges, that an express warranty excludes an implied warranty, this has been criticized as too broad a statement of the rule. Williston on Sales, Rev.Ed., Vol. 1, p. 625, Sec. 239a. A more accurate statement of the correct rule is that an express warranty excludes an implied warranty of fitness (1) if the express warranty is inconsistent with the warranty which would have been implied had none been expressed; or (2) if the express warranty relates to the same or a similar subject matter as one which would have been implied.”

The Dealer Warranty is so limited that it could accurately be concluded that it does not come within either of the exclusions; however, under the facts of this case, such a decision need not be made, because the “disclaimer”, previously quoted as a part of the same instrument, if effective, would be an absolute barrier to the submission of any theory of implied warranty. In 77 C.J. S. Sales § 301, p. 1115, an express warranty is defined as follows:

“A warranty is a statement or representation made by the seller of goods, contemporaneously with, and as a part of, the contract of sale, although collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them. * * * A warranty is express when the seller makes an affirmation with respect to the article to he sold, pending the treaty of sale, on tvhich it is intended that the buyer shall rely in making the purchase: * * * Stated otherwise, an express warranty is one imposed by the parties to the coir-tract. * * *” (Emphasis added).

The defense that the parties expressly limited the extent of the warranties is an affirmative defense that must be pleaded and proven. Witte v. Cooke Tractor Co., Mo.App., 261 S.W.2d 651. Defendant’s answer alleged: “ * * * defendant states that defendant issued to plaintiff a dealer warranty which by its express terms excluded any and all other warranties of whatsoever nature.”

However, a detailed search of the record reveals that the proof of this allegation was limited to an admission by plaintiff on cross-examination that defendant’s salesman on the evening that she took delivery of the car, two days after the agreed sale and purchaseTdid hand"her the Dealer Warranty. Ho^i3SneeTwas'offered"th«t4t-jwas even identified at the time, nor that any of its provisions played any part whatsoever in the actual purchase. There being a complete failure of proof to sustain the affirmative allegation, the trial court properly overruled defendant’s Motion For a Directed Verdict, as well as refusing to give the offered instruction calling for submission on the theory of express warranty.

Defendant next assigns as error the court’s refusal to admit testimony that the sale price listed on the invoice was substantially in excess of the actual value at the time of sale. The case of Wind v. Bank of Maplewood & Trust Co., Mo.App., 58 S. W.2d 332, is cited as authority for this contention. There the court stated an accepted rule, 58 S.W.2d 1. c., 334:

“ * * * where the writing is a mere acknowledgment, statement, or receipt, constituting a mere written admission of a transaction independently existing or consummated, it is to be clothed with no contractual force and effect, and is open to contradiction, variation, or addition by parol.”

The rule would be inapplicable in this instance. There was no dispute as to both parties agreeing on a purchase price of $3,-429.00. Defendant’s offer was not to deny this fact, but to explain “why” it did. Although perhaps of interest, in the absence of any evidence that plaintiff was a party to or aware of the “why”, it would not have been binding on her and was properly excluded. The same would be true of defendant’s effort to show the price for which it sold the used Chrysler trade-in to some third party. Schroeder v. Zykan, Mo.App., 255 S.W.2d 105, 112(17).

Defendant next contends that the portion of plaintiff’s verdict-directing In-, struction relating to damages failed to set out the proper measure of damages in a suit for breach of implied warranty. That part reads as follows:

“ * * * assess plaintiff’s damages in an amount being the difference be-, tween the purchase price of said automobile and the market value of said; vehicle in the condition it was in, not to exceed however, the sum of $1829.--00, together with interest at six (6) per cent per year from August 6, 1958.”

The primary complaint being that “value of the automobile had it been as warranted” should have been used instead of the words “purchase price of the automobile.” Plaintiff submits that purchase price, when agreed upon by both seller and buyer, is in fact the only warranted value known to the purchaser. She also refers to numerous cases cited in Words and Phrases, under titles—Price or Value—stating that although they are not necessarily synonymous, they are often legal equivalents. The early case of Narr v. Norman, 113 Mo. App. 533, 88 S.W. 122, is of interest on this question. There it was stated:

“The basic principle controlling the measure of damages in such cases is full compensation for the actual loss sustained by the injured vendee * * hence the rule generally followed of permitting a recovery for the difference between the actual value of the article sold and its value in the condition warranted. * * * The purpose of the rule is to give the vendee the benefit of his bargain, as a part of his actual loss, should it appear that the market value of the article, as warranted at the time and place of delivery, exceeded the contract price. * * * But it is not true, as urged by defendant, that, in the event it is shown that the vendee paid more for the article than its reasonable market value, his recovery is controlled by the latter amount, and not by the purchase price. In no event is the vendor to be suffered to profit by his wrong. He must reimburse the vendee for the actual loss sustained * * * the instruction given on plaintiff’s behalf, which permitted the jury to ‘allow him the difference between the price paid for the hogs and the actual value,’ would have been without prejudice to the defendant. * * * ”

It is established that if the contract is affirmed, the purchaser’s recovery is generally based on the difference between actual value and warranted value; but, if the contract is rescinded, the purchaser’s damages, if any, are determined from the original amount paid or purchase price. Dubinsky v. Lindburg Cadillac Co., supra; Salmon v. Brookshire, Mo.App., 301 S.W.2d 48; 37 C.J.S. Fraud § 143, p. 478.

The instant case was submitted on a theory of rescission of the contract by plaintiff, and the Instruction given correctly sets out the proper measure of damages. It appears that the jury determined the actual value of the automobile in its defective condition to be $1,600.00, and deducted this amount from the purchase price. The value as found was within the range of values given by plaintiff’s witnesses, which varied from $1,300.00 to $1,700.00. The fact that the actual value as determined by the jury was the same amount for which plaintiff resold the automobile is not necessarily indicative that the Instruction as to damages was not followed. It is true, of course, as indicated in the Dubinsky case, supra, that a seller cannot be penalized if the purchaser’s resale price is below the actual value. Defendant correctly contends that actual value of the defective vehicle is to be determined as of the date of delivery, but there is no merit to its argument that the Instruction was so punctuated as to designate August 6, 1958, as the time for determining such value. It is quite clear that the date given was designated as the time from which interest might be calculated. However, although not assigned as error by defendant, to avoid being misleading, it should be pointed out that the correct date would have been October 23, 1957, because a rescinding purchaser may be allowed interest from date of payment. Schroeder v. Zylcan, supra. Interest allowed plaintiff might have been greater, but the question is not now for decision. Defendant did not by its pleadings seek any allowance for plaintiff’s use of the automobile in its defective condition. Witte v. Cooke Tractor Co., supra.

Having found no error materially affecting the trial of this cause, your commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by J. P. MORGAN, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is affirmed.

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

RUDDY, J., not participating.


author: RUDDY, Presiding Judge.

text:
    In Re R. D. H. S., a Minor.
    No. 31722.
    St. Louis Court of Appeals. Missouri.
    Sept. 17, 1963.
    Rehearing Denied Oct. 14, 1963.
    Witherspoon & Lewis, St. Louis, for appellant.
    Charles M. Shaw, Claude Hanks, Clayton, for respondent.
   RUDDY, Presiding Judge.

This is an original proceeding in habeas corpus tried by the court. The petition was filed in this court by the natural mother of a minor female child against the putative father of the child, who is in his care and custody, but not by virtue of any judgment, order or decree of any court, or by any provision of law.

It is alleged in said petition that the petitioner is single and unmarried and was single and unmarried at the time of the birth of said minor child and that she is lawfully entitled to the exclusive possession, custody, care and control of said child. It is further alleged in said petition that said minor child is illegally and unlawfully restrained of her liberty by the respondent, the putative father, and that the respondent has no legal right to the custody of said child. It is then alleged that respondent illegally holds said child under the mistaken idea that he has a right to the custody, care and control of said minor child, and that he had threatened to take the said child out of the State of Missouri. Petitioner prays for the issuance of a Writ of Habeas Corpus that said minor child may be placed in her custody.

In his return the respondent alleged that he has the care and control of the said minor child and that he is the natural father of said child and has had actual physical care and control of said child since the birth of the child; and that he has supported said child since her birth until the child was forcibly taken from the respondent’s care and control by the petitioner during the month of June, 1963. Respondent in his return raises the question of the fitness of the petitioner to have custody of the child and, in support of his allegation, he charges that the petitioner was living in a state of adultery when she forcibly took the care and control of the child during the month of June, 1963; that petitioner was neglecting the physical and mental health and welfare of said minor child; that petitioner was mistreating the minor child physically and mentally; that petitioner was in the habit of leaving the child unattended and improperly cared for by persons not qualified to care for a minor child; and that while petitioner had the minor child in her control, she did not properly feed or clothe said child.

In her answer to respondent’s amended return, petitioner admits that respondent is the putative father of the said child and denies all other allegations contained in said return.

Petitioner testified that she is twenty-seven years of age. She has never been married; however, has had two children including the child which is the subject of this proceeding. The child involved was born on February 12, 1962, in St. Louis, Missouri. She admitted that respondent is the father of said child. After the birth of the child, she took care of her for six weeks; thereafter, she returned to work and asked respondent’s aunt, Mrs. H., to take care of the child while she was employed. Prior to the child’s birth, petitioner worked at the Christian Hospital for two and one-half years and since leaving there she has been employed at the Normandy Hospital, where she has worked for approximately sixteen months, giving as her salary $160 to $170 per month. This arrangement with Mrs. H. continued from March, 1962 until May, 1962 when the petitioner obtained a room at Mrs. H.’s home and would take care of the child after her employment. She continued to live at the home of Mrs. H. until July 17, 1962, at which time petitioner and respondent agreed that the respondent’s mother would keep the baby, with the understanding that petitioner could have the child anytime she wanted her.

Petitioner further testified that she corresponded with respondent’s mother while the child was living with respondent’s mother in Macon, Mississippi. During the Christmas Season of 1962, petitioner visited the child at Macon, Mississippi, and, when leaving there, took the child to Phillips, Mississippi, the home of her parents. After visiting at the home of her parents, the petitioner arranged with the respondent’s mother to have the baby returned to Macon, Mississippi. Petitioner stated that if she did not hear from respondent’s mother for three or four weeks, she would call her on the telephone to inquire about the child. In January, 1963, the child was brought from Macon, Mississippi, and left with Mrs. H. During this visit of the child, the respondent was hospitalized and during his stay in the hospital the petitioner, learning the child was at the home of Mrs. H., visited at said home and took the child with her to petitioner’s own home. At this time,, her testimony indicates, she lived at 1179' Hodiamont Avenue in St. Louis, Missouri.. In her testimony, petitioner does not indicate how long she had the child on this, occasion. Her testimony indicates that she saw the child again on either June 4 or 5 at the home of Mrs. H., and that on June-7th she got the child from the home of Mrs. H. and kept her until August 20th, when, the respondent took the child from the baby sitter who had the child in her care. She further testified that when the child was. not with her, she would send the child clothes, gifts and toys on holidays such as. Easter, Christmas and birthdays.

On August 5th, while the child was in1 petitioner’s care, petitioner discovered a knot near the private part of the child’s body. She said she took the child to Dr. Janice Robinson, who was not produced as. a witness. The skin was not broken and the petitioner claimed that the knot resulted’, when the child fell off of a rocking horse-on August 5th. She testified that respondent had told her that he was not married when he first met her; however, on the-occasion of her Christmas visit to Macon, Mississippi, she saw respondent at his-mother’s home and at that time he introduced a woman to her as his wife. She testified that he told her, “This is the reason I couldn’t marry you, this is my wife.” She testified that she observed on her visit to the home of the mother of respondent that the baby was clean and had been well taken care of by respondent’s mother. She has seen the respondent with other girls and has seen him on several occasions with a girl she named as Jerry. She attends church on Sundays when she is not working. On the date respondent took the child, namely August 20th, she said she left home about 10:00 A.M., and left the child in the care of a baby sitter. Before she left home that morning, she had bathed and fed the child and had combed her hair. She said she never left the child unattended at any time and always had food and clothing for her. In concluding her direct testimony, she said she wanted the child.

In her cross-examination, the petitioner admitted that her first child (who is now 5 years of age) was born when she was unmarried. She stated that she received ADC payments for the support and maintenance of this child, which payments were stopped in December, 1961, because she did not go to the office of the agency paying the funds for an interview. The reason she gave for not going to the office was that she would have been cut off anyway when they learned that she was pregnant with the second child. She said that the place where she lives, namely 1179 Hodiamont Avenue, has four rooms, two of which are bedrooms. She admitted that Joseph Simmons lives at the address on Hodiamont Avenue and had lived there and that she moved into this place in June, 1963. She acknowledged that the only name on the mailbox was that of Joseph Simmons. She further admitted that Joe Simmons is married, but added that she plans to marry him when he obtains a divorce from his wife. She admitted having acts of intercourse with Joe Simmons, adding that she has also had them with other men. She indicated that these acts of intercourse still continued and that she knew that Joe Simmons was married when she engaged in these acts with him. She stated that Joe Simmons worked at Wagner Electric Company and that if he got home before she did from their respective places of employment, he would take care of the child.

The next witness for petitioner was the baby sitter, who testified that she was 14 years of age and was starting in the ninth grade of high school. She has known petitioner and respondent for some time. When the child was with petitioner, she would take care of the child during the day and this occurred every day except on the days petitioner was off from her place of employment and except on Sundays. She further testified that another woman lived at 1179 Hodiamont Avenue where Joe Simmons lived and she had seen Joe Simmons at this address and knew that he would take care of the child at times when petitioner was not present. She further testified that the petitioner visited her home in the company of Joe Simmons. On the 20th day of August, 1963, she was acting as baby sitter for the child and on this day she had occasion to visit a store. Upon returning from the store and while walking on a public sidewalk on Hodiamont, she said, respondent came up to her from behind, took the baby and told her to tell the petitioner that he had the child. She further testified that respondent did not threaten her or do anything to cause any harm.

The testimony of respondent shows that he was born June 1, 1933, at Macon, Mississippi. He was married at said place during the year 1950 or ’51. Some time thereafter and before May 4, 1953, his wife left him and subsequently told him that she had obtained a decree of divorce. He had no children by this marriage. He came to St. Louis May 4, 1953, and has never married again. He is presently employed with the International Shoe Company and has been so employed for 11 years. He lives on Rock Hill Road in St. Louis County and, in addition to his employment at the International Shoe Company, is employed as caretaker for the owners' of the premises and improvements thereon on Rock Hill Road. The owners of these premises also live there and have provided respondent with a sleeping room and a shower room. He admitted being the father of the minor child. He said she was born February 12, 1962. After her birth the child remained with the natural mother for approximately six weeks, after which time petitioner informed the respondent that she could not take care of the child any longer and it was then agreed between respondent and petitioner that the child be left with the aunt of respondent, a Mrs. H. Mrs. H. kept the child for approximately two months. Thereafter, by agreement with the petitioner, respondent called his mother at Macon, Mississippi and asked her to come and get the child. Pursuant to his request respondent’s mother came to St. Louis and took the child to Macon, Mississippi, where the child remained with respondent’s mother until June, 1963. During this time, respondent paid his mother $40 per month for the keep of the child until January, 1963, and thereafter paid her $50 per month.

During the Christmas Season 1962 he visited the child at Macon, Mississippi, and while there met the petitioner who was also visiting the child. He said petitioner stayed overnight at the home of his mother and then took the child to Phillips, Mississippi, the home of petitioner’s parents, for four days. He stated that his mother had to go to Phillips, Mississippi, and get the child and return her to Macon, Mississippi; that the petitioner has not visited the child since and that she returned to St. Louis shortly after visiting her parents at Phillips, Mississippi. Respondent admitted that when he and the petitioner met on this visit at his mother’s home in Macon, Mississippi, he introduced petitioner to a woman, but said that he told petitioner this woman was his former wife and not that she was his present wife. Sometime in June of this year (1963) while respondent was on vacation, he brought the child to St. Louis. During the time the child was here, respondent and the child lived with respondent’s aunt, Mrs. H. On June 7, about 5:30 P.M. while respondent was away from his aunt’s place, the petitioner came to the house and took the child telling the aunt that she would only keep the child three or four days. Respondent said that petitioner then lived at 1179a Hodiamont and that the only name on the mail box was Joe W. Simmons. He said that petitioner told him she had moved in with Joe-Simmons and that she and Joe were going, to get married.

Respondent knew that petitioner had another child, namely, a boy 5 years old,, and that he lived with petitioner at the Hodiamont address. He said that petitioner had told him that she had never been married. He said that petitioner did not return the child and on August 20 about 12:30 or 12:45 P.M., he went in search of the child and saw her on Plodiamont Avenue with the baby sitter, at which time, he said, the child was running up and down the street. It had on a shirt and short pants. He said her clothes and her body were dirty. He took the child to Rock Hill Road where he resides and works and gave the child a bath and fed her, stating she was hungry. On August 28, 1963, he turned the child over to his mother who returned with the child to Macon, Miss. On August 20, when bathing the child, he noticed a mark or knot on her private parts. He took her to the office of a doctor where she was examined. He said his mother has been taking care of the child ever since he got her back. Subsequent to picking up the child he called the petitioner on the telephone. She in turn called Joe Simmons to the phone who told the respondent that if he did not leave the child alone that respondent would get into serious trouble. Respondent denied knowing any girl named Jerry. Respondent told the court that if he is permitted to keep the child it is his intention to send her to his mother in Macon, Mississippi, for care and rearing.

The next witness for respondent testified that she lived at the Rock Hill Road address, where the respondent is caretaker, and that she and her husband are the owners of ■said property. She testified that respondent has been caretaker of their home and the premises surrounding it and has been a faithful and trustworthy employee and at •all times clean in appearance and honest in his dealings. She said that respondent, to her knowledge, does not use intoxicants and that his character is good. She further testified that he had brought girls to the premises, but never entertained any of them in his own quarters. On August 20, when the respondent picked up the child on Hodiamont Avenue and thereafter took the child to the Rock Hill Road address, witness testified, that when she got home .about 4:30 P.M., she saw the child and it had apparently been in the house about 1½ hours. She further testified that respondent had not cleaned the child, stating that he wanted her to see the child and the child’s condition. She stated that the clothes of the child were dirty, the child’s shoes were dirty, her hair needed combing and the child was hungry. She further stated that the child was bathed, put to bed and the child thereafter fell asleep. This witness further testified that on one Sunday morning, the date of which was not given, about 9:30 or 10:00 A.M., she was on an extension phone when respondent called the petitioner. Respondent asked petitioner if he could see his daughter and she heard the petitioner call to Joe Simmons who then came to the phone and told the respondent not to call there any more, that he could not see the baby and that if he persisted in seeing the baby that there would be plenty of trouble. She stated that respondent did not have a bank account and that he would give her the cash and she would write the checks that were sent to respondent’s mother in payment of the maintenance of the child. These checks were $40 per month during the year 1962 and $50 per month thereafter. She further testified that she observed the knot on the female organs of the child and that the knot was about the size of an egg which had been reduced to the size of a marble when the child was taken back to Macon, Mississippi. When respondent’s mother visited St. Louis she was permitted to stay at the home of the witness on Rock Hill Road. She said Joe Simmons called her on the phone at 2:30 A.M. on the Tuesday or Wednesday preceding the hearing. She did relate the conversation.

The next witness for respondent was the mother of said respondent, who testified, that she was 48 years of age and that she lived with her husband who was 47 years of age. Her husband worked for the General Box Company at Macon, Mississippi, for 12 years. She has lived at Macon, Missisippi, all of her life. She and her husband own their own home which consists of seven rooms and in addition to the child involved in this case she takes care of her sister’s girl who is about six years of age. She has had the care and custody of the child involved herein practically all of the time since the child’s birth. She got the child when she was about three months old and stated the child was now 18 months old. She has met petitioner several times and petitioner visited in her home last Christmas and stayed overnight. While petitioner visited the witness she did not take care of the child, but the child was taken care of by the witness. The petitioner on this visit took the child to Phillips, Mississippi, the home of petitioner’s parents, where the child stayed for two days and nights. Thereafter, the witness drove to Phillips, Mississippi, and got the child after the petitioner had asked her to come for the child. In June of 1963 the respondent came to Mississippi and got the child, and the respondent, the child and the witness returned to St. Louis. While here the witness stayed with her sister, Mrs. H. She again saw the child about two weeks previous to the hearing at the premises on Rock Hill Road. When the child was brought back to St. Louis from Macon, Mississippi, in June there was no knot on the child, such as was later found when the child was picked up by the respondent. She testified that she attended church regularly and that if the court permits the child to remain with the respondent she would take care of it.

In a habeas corpus proceeding involving the custody of a minor child the child’s welfare and future well-being are of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interests of the child.

The case of In re Duncan, Mo., 365 S.W.2d 567, was a habeas corpus proceeding that was originally filed in this court and was transferred by this court to the Supreme Court for the purpose of re-examining the existing law. The Supreme Court in its examination of the existing law said (365 S.W.2d 1. c. 571):

“In Ex Parte DeCastro, 238 Mo.App. 1011, 190 S.W.2d 949, 951, a habeas corpus proceeding by a parent seeking custody of her child from a third party on the basis of her natural right, the court said: ‘There is, however, a still further issue which inheres in the case by reason of its subject matter. This is the issue of the welfare of the child, which is an issue always to be kept in view in all legal proceedings involving the custody and control of a minor child as to which the state stands in the relation of parens patriae. In other words, whenever a minor child is brought within the jurisdiction of a court for an adjudication with respect to the question of its custody, the child becomes the ward of the court; and in determining the question of its ultimate disposition, the child’s well being is of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interests of the child. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286. * * * In such an instance the nature of the inquiry makes the proceeding one of an equitable nature; and the question of either party’s strictly legal right will be measured in terms of the welfare of the child. Ex parte Badger, supra; 25 Am.Jur., Habeas Corpus, secs. 78-80; 39 C.J.S. Habeas Corpus § 41.’ By analogy with the situations in which a parent is claiming custody by natural right instead of by court decree, and on the same principles, where there is no other forum for determining this issue, because no proper party is available to proceed in the divorce court, and there has never been an actual hearing to determine a child’s welfare, our conclusion is that the court may hear and determine this issue in a ha-beas corpus proceeding.”

The case of In re Richardet, Mo.App., 280 S.W.2d 466, is analogous in practically all respects, so far as the relationship of the parties is concerned, to the present proceeding before us for decision. The petition for writ of habeas corpus was filed by the natural mother of an illegitimate child to obtain custody of the child from the respondents, who were the parents of the putative father of said child. All of the principles of law necessary to an examination of the instant case under review can be found in the Richardet case. After pointing out in that case that the welfare of the minor child is a superior objective to which all other considerations must yield, we said:

“Parents as the natural guardians of their minor child are presumed to be fit and qualified to assume the custody of their children and the natural right of the parent should never be denied unless it is made manifest to the court that he or she for some strong and cogent reason is unfit or incompetent to take charge of the child or unless the welfare of the child himself for some special or extraordinary reason demands a different disposition at the hands of the court. (Citing cases.)
“The foregoing rule of law applies to the natural parents of an illegitimate child. (Citing' cases.)
“All else being equal a child of tender years will be given to the mother as against the father. (Citing cases.)
“The mother, as the natural guardian, primarily has the right to the ■custody, care and control of her illegitimate child, which right in the absence of an express statutory provision to the contrary, is superior to the right •of the putative father or any other person, providing she is a fit and suitable person to act as custodian. (Citing ■cases and other authorities.)
“The custody of a child will not be awarded to its natural parent where that parent is not a fit and competent person to act as custodian. (Citing cases.)
“Respondents have the burden of proof on the issue of the fitness of petitioner to act as custodian having raised the question as an affirmative defense. (Citing cases.)
“In a habeas corpus proceeding between a natural parent seeking to obtain custody of his child and persons who hold the child without the sanction of any judicial decree, the fitness, competence and suitability of the parent to take charge of the child, when challenged, depends upon whether petitioner is guilty of wilful abandonment and wilful neglect to provide the child with proper care and maintenance; whether the child, if placed in the custody of the natural parent, would become homeless, or dependent upon the public for support or reduced to a state of habitual vagrancy or mendacity, or ill-treated, or that his life, health, or morals would be endangered by continued cruel treatment, neglect, immorality, gross misconduct or depravity upon the part of the petitioner. Cox v. Carapel-la, supra [Mo.App., 246 S.W.2d 513].” (280 S.W.2d 1. c. 471.)

It is undisputed that the petitioner is the natural mother of the child involved and that the child was born out of wedlock, the mother béing single and unmarried at the time of her birth. It is further undisputed that the respondent is the father of said child. There is no contention by the respondent that he holds custody of the child by virtue of any judgment, order or decree of any court and, as we said in the Richardet case, he has the burden of proof on the issue of the unfitness of the petitioner to act as custodian, having raised the question of her fitness in his return.

It takes very little analysis of the testimony we received in this case to demonstrate that petitioner is wholly unfit to have the custody of the child in question. Her own testimony reveals that she had little interest in the child since her birth. Six weeks after the birth of the child she returned to work and asked the respondent’s aunt to take care of the child and shortly thereafter entered into an agreement with the respondent whereby the child would be removed from St. Louis, Missouri, to Macon, Mississippi, there to be maintained and cared for by the mother of respondent. She admitted that the baby was well taken care of by respondent’s mother. She testified that she attended church on Sundays. Through this testimony she was seeking some kind of help or refuge from the court, but her actions and conduct betray her testimony that she attended church on Sundays. The fundamental teaching of all churches is to “Fear God, and keep His commandments: for this is all man.” Ecclesiastes (12:13). Her testimony shows that she has failed to learn the meaning and significance of at least one of the commandments of the Lord. Her testimony reveals that she has led an adult life of sexual promiscuity. Obviously, she rejects the pattern of decent society to have children within the lawful bond of wedlock. The child whose custody is in question in this proceeding is not her first child born out of wedlock, for she has another child five years of age which was born under similar-circumstances. She has depended upon the public for the support of this child five years of age, having acknowledged that she did receive ADC payments until she became pregnant with the minor child in the custody of respondent. Her sexual indiscretions continue to this date. Her testimony reveals that she moved into the home on Hodiamont Avenue occupied by Joe Simmons. She knew Joe Simmons was married and despite this has admitted numerous and continued acts of sexual intercourse with him. In connection with these acts of intercourse, when she was questioned about them at the hearing, she seemed indignant when it was suggested that they took place only a few times. She hurriedly corrected this impression by stating that she had many acts of intercourse with Joe Simmons and volunteered the statement that she has also had them with other men. As we have shown in her testimony she indicated these acts of intercourse still continue.

It is further shown in the testimony that when petitioner did have the child in her custody she neglected to provide the child with proper care. On August 20, 1963, when the respondent took the child from the baby-sitter he found the child running up and down the street in a dirty and hungry condition and upon bathing the child found it to have a knot in its private parts, the size of an egg. We think this testimony, which we have related, demonstrates that petitioner is wholly unfit to care for this child and that the best interests and welfare of the child require that petitioner be denied her custody. We think the child should remain in the custody of respondent.

The testimony shows that respondent is an industrious person, that he has a record of eleven years continuous employment with International Shoe Company and, in addition, acts as caretaker for the home and premises located on Rock Hill Road in St. Louis County. We are satisfied that he has love and affection for this child. He has found an excellent home for the child, namely, the home of his mother and has faithfully supported the child while in the temporary custody of the mother. One of the owners of the property where he resides and over which he is caretaker, testified that he is a faithful and trustworthy employee, clean in his appearance and honest in his dealings. That he does not use intoxicants and that his character is good.

The child is obviously attached to the mother of the respondent and we say this, because of our own observation of what took place in the courtroom when this matter was heard. When the mother of respondent was called to be a witness in the case the child refused to go to anyone else and clung tenaciously to the witness during her entire testimony. Such attachment, as-demonstrated by this child in the courtroom, most certainly comes from loving care and attention bestowed on the child' by the mother of respondent.

We are aware that if the custody of the child is turned over to respondent herein, that at least -temporarily he will again place the child in the care of his mother. We see-no harm in this connection but rather feel1 that it is for the best interests of the child for the respondent to place the child with his mother. The home of respondent’smother is large, her husband is employed and has been so employed for a number of' years. The child while in her care seemed' to be healthy and happy and an attachment,, no doubt, founded on love and affection, has formed between respondent’s mother and the child. Respondent is financially able to support the child. We are certain-the child will be reared in the home of respondent’s mother in an atmosphere of spirituality, for the respondent’s mother testified that she and her husband attend' church regularly.

It is our ruling that the petition be denied and that the custody of R. D. H. S., a minor child, be remanded to respondent.

WOLFE and ANDERSON, JJ., concur.