author: RUARK, Presiding Judge.

text:
    In the Matter of the ADOPTION OF J-.
    No. 8472.
    Springfield Court of Appeals. Missouri.
    Nov. 4, 1965.

      Charles D. Tudor, Joplin, for Mother appellant.
    James E. Brown, Joplin, for petitioners-respondents.
   RUARK, Presiding Judge.

This is an appeal from a decree of adoption. The subject is a girl child, twelve years of age at time the decree was rendered. The successful petitioners were the natural and legal father of the child and his present wife, the stepmother. The appellant is the mother of the child. The principal question is whether the consent of the mother was not required because the mother had “for a period of at least one year immediately prior to the filing of the petition for adoption either wilfully abandoned the child or wilfully neglected to provide [her] with proper care and maintenance.”

The father and appellant mother were married in 1951, and the daughter, an only child, was born in 1952. In July or August, 1960, they began to have trouble which resulted in a separation in September. The mother went to a friend’s home. There is conflict as to whether she took the child with her; but at a conference held “a month or so” after the separation at an apartment (then occupied by the mother) between the father, the mother, and the maternal grandmother, the daughter was required to express her preference and the result was the daughter was returned to the father’s home. On November 15, I960, the mother filed petition for divorce alleging indignities. Her petition stated that plaintiff was now required to work, and considering the time required in so working, and the amount of income realized therefrom, she was not “now” in position to accept care and custody, that the child was receiving proper care from the father and it would be for the best interest of the child “for the time being” to remain in the care and custody of the father. Prayer was for divorce and care and custody to the father with reservation of reasonable visiting rights in the mother. On the following day the father filed an entry of appearance, waiver of service, and consent to trial and decree without further notice. Later he filed an answer admitting all allegations of the petition except the paragraph charging indignities, which he denied. On January 3,1961, decree of divorce was granted to plaintiff mother, and custody of the child was awarded defendant father with right of visitation in the mother at reasonable times, and right to have the child visit her at times to be agreed by the parties. Thereafter and until the mother left the vicinity for California, she visited with the daughter and had her overnight on occasions.

In early May of 1961 the mother went to California and to the home of the paternal grandmother, her former mother-in-law. It is the testimony of this paternal grandmother which contains practically the whole indictment against the mother. We will relate it more fully hereafter. In the meantime, we will attempt to finish the chronological statement of events.

The mother had been a member of the Air Force and had served in California. There she had been acquainted with one B. She got in contact with him, and the result was that on May 18,1961, she married him. The father also did not waste much time and on June 30, 1961, married his present wife. This lady has two children of a former marriage.

In late July or early August, 1961, the mother returned to Missouri. It is apparent that she and the father had difficulty concerning visitation of the mother with the child, and on August 2, 1961, she filed motion to modify the divorce decree. This motion alleged that both parties had remarried, that the father refused to permit visitation, and that he had attempted to alienate the affection of the child for the mother; that the father and stepmother were both employed and it was necessary for an “outsider” to care for the child; that the mother’s present husband was employed and it was no longer necessary for her to work. The mother prayed for modification granting her care and custody. She further alleged that it was necessary for her to return to California on August 12, 1961, prior to a possible adjudication on the motion and prayed for an order permitting temporary custody of one week. On August 3, 1961, the husband filed application for disqualification of judge. On August 4 said application was sustained and a judge from another circuit was called. On August 7 the special judge conducted a hearing on that part of the motion dealing with temporary custody and ordered such temporary custody in the mother until August 11 at which time custody was ordered returned to the father. After that the mother returned to California and on November 3, 1961, dismissed her motion to modify. On November 22,1961, the father, joined by his present wife, the stepmother, filed petition for adoption of the girl here involved and of the two sons of the present wife by her former marriage. The allegations were that the defendant parents of the children had (a) wilfully abandoned and (b) wilfully neglected to provide proper support for said children for one year last preceding the filing of such petition. To that appellant mother answered by denying wilful abandonment or neglect and alleged that she did assert her right to have reasonable visitation; that after she moved to California she found it necessary to file a motion to modify and was granted temporary custody; and that she had from time to time made demand for visitation and had been refused. There the matter rested in court until June 24,1964, when the issues on the petition for adoption were tried and taken under advisement. On November 20, 1964, the mother again filed a motion to modify in respect to permanent custody and permission to take the child to California, and for temporary custody prior to November 28, 1964, when it would be necessary for her to return to California. To this motion the father filed answer setting up the substance of that which we will hereafter state, and opposing both modification and temporary custody. On this motion (heard by special judge) temporary custody of three and a half days was allowed to the mother. On December 7, 1964, the court in the adoption case decreed adoption of the child by the petitioners, father and stepmother. The memorandum filed by the judge determined that there had been an intentional abandonment of the child by the mother for a period of almost three years. This finding was based on the testimony of the paternal grandmother, given by deposition in Missouri on June 3, 1964.

It will be recalled that the mother went to the home of the paternal grandmother in California in May 1961. She (the grandmother) testified that the mother told her the following: She (the mother) had kept contact with B, whom she had known while in the Air Force. She came out to find if he was still in love with her. The next day she told the witness that she and one G, a married man with four children, were desperately in love and she didn’t know what to do; that it was because of G that her marriage to the father broke up. She said that G was the only man who could satisfy her sexually, but she wanted to see B again in order to make up her mind whether to marry him or go ahead with G. She said she was going back to Missouri to see G; that she got letters from him daily. The paternal grandmother testified that G called the mother on the phone and said his wife would not agree to a divorce. The mother then became hysterical and said she thought she was pregnant by G and sent a specimen to the doctor to determine this before she married B. She married B on May 18. On June 6, B called her (the paternal grandmother) and told her that the mother had disappeared and had left a note telling him she was going away to think things out. A few days later the mother called B and asked if she could come back. B told her (the paternal grandmother) that she (the mother) had been with G, but he (B) had forgiven her. Later the mother told the grandmother she had been with G on that occasion. The grandmother testified that the mother disappeared again about six weeks later and went back to Missouri, and her sister there sent her back to California.

This witness further testified that the mother had told her on the phone that she intended to come back in November and sue for custody, and it was in anticipation of that custody fight that she gave her testimony. She said she knew of no improper conduct on the part of the mother since 1961. She had learned from a son and daughter-in-law that the mother was trying to “cover herself with whitewash.” She was living such a life that she would be able to get the child. She and B had started going to church, and she (the grandmother) knew of no reason to believe that the mother was not being true to B. She testified that B and the mother didn’t have an abundance of money. All she (the paternal grandmother) knew concerning the misconduct of the mother was covering a period of a month, and what she, the mother, told her. She knew that there was correspondence between the mother and the child, she had seen some of the letters; she knew that the mother sent the child gifts. She considered that the mother abandoned the child because of her love affair with G. She had left without the daughter. It was a psychological, not physical, abandonment. There was no need for the mother to leave Missouri. Her love affair with G after the divorce was the abandonment. She wasn’t considering the child; she was considering her own love life, and that constitutes abandonment. Her son and his present wife have a good Christian home. The child does not want for anything, and there is a great deal of affection between the child and the stepmother. She is a better mother than the appellant. The child will be much happier where she is.

The petitioner father testified: He had had custody of the child since the divorce. He permitted his ex-wife to see the child when she wanted to with one exception. The mother had actual custody (per court order) for four days in August 1961. During the period of separation prior to the divorce, the child did not live with the mother but was with the mother from time to time. After the divorce the mother asserted the right of visitation, and then she moved to California. The mother wrote the daughter about once a month, and the child to her. He had read all the letters, both the mother and child’s. The mother sent the daughter clothes, a box of toys, perfume, lipstick, and a cheap ring. The child was not happy with the gifts. The mother did see the child in the year before filing of the petition. He stated that the reason he was trying to cut off the legal relationship between mother and child was, “You stated in this court the last time that we were up here that my former wife is going to sue for custody this Thanksgiving. This is one good reason. Now, another good reason is that my former wife would take the child away from me and I wouldn’t want anything like that to happen to that little girl.”

The mother testified by deposition taken in California by California attorneys, on May 7, 1964. She said that after the separation (in 1960) her daughter stayed with her about a month and then was returned to the father’s home because she expressed that as her preference, but after that she had the daughter in her apartment, occasionally overnight. During that period she couldn’t give her daughter any money because she didn’t have any. She got temporary custody for four days in August 1961, and then had to go back to California. Since then she had written her daughter at least once a month and had sent her gifts on special occasions. Her daughter had written her four letters. The last one was after she, the mother, had sent a certified letter. She maintained her GI insurance with her daughter as alternate beneficiary. She, the mother, made a gross salary of three hundred-fifty dollars per month. Her husband had been unemployed for a period but was now making eighty dollars per week. On objections and instructions from her attorneys, she was not permitted to answer any questions concerning her relationship with G or B or as to any conversations she had with the paternal grandmother.

It is frequently said that the relationship of parent and child is one of the highest of natural rights with which the state will not interfere simply to better the moral and temporal welfare of the child, as against a parent who has not forfeited such right. (2 C.J.S. Adoption of Children § 21a [1], p. 384). And it is generally held that statutes which permit the termination of this right must be strictly construed against deprivation of parental rights (In re G, Mo.App., 389 S.W.2d 63 [1]; In re G. K. D., Mo.App., 332 S.W.2d 62, and cases cited at 66; 2 Am.Jur.2d Adoption, § 7, p. 866), at least to the extent that any conditions which deprive the parent of the power to withhold consent must be “substantially complied with.” In re C.C. and C., Mo.App., 380 S.W.2d 510, and cases at 514.

Section 453.040(4), RSMo V.A.M.S., as amended Laws of 1959, H.B. No. 438, § 1, provides that parental consent is not required of one who has “for a period of at least one year immediately prior to the filing of the petition for adoption” either (a) wilfully abandoned the child or (b) wilfully neglected to provide (her) with proper care and maintenance.

The failure to contribute financially to the support of the child is of course not an element here. She was in the custody of the father, who was legally and morally bound to support her, and the evidence shows that the child was not in want. The respondents in their brief admit that there was no abandonment or desertion in the sense of total lack of contact or communication during the year preceding the filing of the petition (November 22, 1961) but assert that the mother was guilty of a course of conduct over that period tending to show a complete and “intentional disregard for the welfare of the child and failure to provide the child with her presence, care, supervision, maintenance, or any reasonable opportunity for normal display of affection and companionship.”

The abandonment or neglect specified as a condition which obviates necessity of parental consent is such as constitutes “first, a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or, second, an intentional withholding from the child, without just cause or excuse, by the parent, of [her] presence, [her] care, [her] love, and [her] protection, maintenance and the opportunity for the display of filial affection.” It must be shown that the neglect was intentional, deliberate, and without just cause or excuse. The abandonment must be absolute, complete, and wilful. There must be a settled purpose to forego all parental duties and relinquish all parental claims. Annotation: 35 A.L.R.2d 664, et seq.; In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686.

Evidence of conduct either before or after the statutory period might be admissible as throwing light upon the purpose and intent of the parent. State v. Pogue, Mo.App., 282 S.W.2d 582, 588. Nevertheless, the conduct of the parent which amounts to abandonment or neglect must have occurred during the year immediately preceding the filing of the adoption (November 22, 1961), because this is the requirement of the statute; and the abandonment or neglect must have continued for the period of the year in question. Abandonment or neglect may be repented and terminated, and if so repented and terminated within the period claimed, and if resumption of the relationship in good faith is attempted, then the statutory provision which dispenses with consent is no longer applicable, because the condition has not continued for “at least one year.” 2 C.J.S. Adoption of Children § 21d, p. 387; Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68, 75.

These things occurred during the year in question: The mother had at least partial custody or visitation with the child up to the time the divorce was granted in January 1961. In her petition for divorce she prayed for, and was granted, the right of reasonable visitation. After the divorce and before going to California in May, she availed herself of that right. In August of that year she was back with a motion to modify, secured a temporary order of custody, and had such custody for a period of four days.

During the period while she was in California, she wrote letters to her daughter, and upon occasions sent her presents. She changed her GI insurance to her present husband but retained her daughter as contingent beneficiary. Those things are not the acts and attitude of one having a settled purpose to forego all parental duties and relinquish all parental claims with the intent to never again claim the rights of parent, nor to show an intentional disregard for the child, or a failure to provide her presence and reasonable opportunity for display of affection and companionship. They are affirmative acts which refute a negative inference of “neglect” when considered in reference to the situation in which the mother then found herself and the opportunities then available for the exercise and demonstration of parental concern.

The respondents, as did the trial court, base the finding of abandonment or neglect primarily upon the affair of the mother with G. There is no evidence as to when this affair began (the separation was in September 1960), but it was over and done with by June or July of 1961. At least there is no evidence to the contrary. And the further evidence is after such time she and her present husband have been living a “whitewashed” life; and after such time, and before the yearly (statutory) period expired, she was back asserting her parental rights.

The trial court in its memorandum filed with the decree recognized the fact that the mother obtained and availed herself of visiting privileges but was of the opinion that this was a matter of “quieting her conscience rather than any sincere desire for custody * * * or for companionship with the child.” We do not possess the divine power to look into the mind and heart of a mother, even an erring or sinful mother, and separate and distinguish those thoughts and acts which come because of the yearnings of a mother for her child from those which are prompted by a guilty conscience; but, if they were the product of a guilty conscience, it was nevertheless a mother’s conscience; and those things done were not the acts of a mother who had a settled purpose to forego all- parental rights or wilfully withhold all parental concern and affection for her child. Accepting as true in all respects the testimony of the paternal grandmother, as did the trial court, we are not to be understood as approving or upholding the mother’s conduct during the month or few months in which she was so obsessed with her infatuation, probably sexual, with G that all other things, including her daughter, became secondary and subject to sacrifice in favor of that aberration; the fact remains this “psychological abandonment” did not continue for the statutory period of one year immediately prior to the filing of the petition.

An adoption proceeding is not a penal action to be used as a means of punishment or vengeance. P- D- v. C- S-, Mo.App., 394 S.W.2d 437 (September 11, 1965) and cases cited. Neither is it primarily a custody proceeding (In re Perkins, 234 Mo.App. 716, 117 S.W. 2d 686). Custody as between parents who are living apart is ordinarily adjudged in divorce actions (In re Wines’ Adoption, 241 Mo.App. 628, 239 S.W.2d 101 [4]) and in certain instances by juvenile court proceedings (In re Slaughter, Mo.App., 290 S.W. 2d 408 [4]). We think the evidence in this case shows that the primary purpose of this proceeding was to have the legal status changed so that the mother could no longer visit or contend for visiting rights. The testimony of the father so indicates.

Subject to the determination of whether there has been a loss of the right to consent or object by virtue of abandonment or neglect, there is yet another factor to be considered. In all adoption cases the paramount consideration is the welfare of the child. What benefit would this child obtain by the decree of adoption? The father and the stepmother have actual custody, and with them such custody will remain until and unless the court should at some future time find and decree that there has been such change of condition as requires the change or removal of such custody. This is not a case of an infant adoption where it is better that the child should not know her natural parent. This girl in her early teens knows her mother. Decree of adoption may change the legal relationship but it cannot wipe out that knowledge and any feeling which goes with it; nor will it even change her name. All it can do is (a) deprive the mother of the right of ever visiting the child during her minority (which visiting rights may be terminated in a proceeding on a motion to modify, if such be found just and proper) and (b) deprive the child of any inheritance from the mother. Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326. For a similar factual situation, see In re Richard, 201 Misc. 447, 106 N.Y.S.2d 92.

The adoption is denied. The judgment is reversed.

STONE and HOGAN, JJ., concur.

      . 2 Am.Jur.2d Adoption, § 32 et seq., p. 886; In re Watson’s Adoption, 238 Mo. App. 1104, 195 S.W.2d 331(2); In re Adoption of J. M. K., Mo.App., 363 S.W. 2d 67, 72; In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360, 363.

      . 2 Am.Jur.2d Adoption, § 36, p. 890; Hyman v. Stanley, Mo.App., 257 S.W.2d 388; Application of Graham, 239 Mo.App. 1036, 199 S.W.2d 68, 74; In re Slaughter, Mo.App., 290 S.W.23 408, 411; see State v. Pogue, Mo.App., 282 S.W.2d 582, 587.


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy BUFF, Plaintiff-Respondent, v. A. C. LOCH, d/b/a Twin Gables Trailer Court, Defendant-Appellant.
    No. 32000.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Rehearing Denied Nov. 17, 1965.

      H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for defendant-appellant.
    Burton H. Shostak, Jerome J. Duff, St. Louis, for plaintiff-respondent.
   JAMES W. BROADDUS, Special Commissioner.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the amount of $9,000.00. Defendant has appealed.

On September 4, 1962, the date of the occurrence giving rise to this litigation, plaintiff lived with her husband and infant granddaughter on Meyer Road, Festus, Missouri, in a trailer at Twin Gables Trailer Court. The trailer court was owned by defendant, and the relationship between plaintiff and defendant was that of landlord and tenant. While living at the trailer court, plaintiff became acquainted with a Mrs. Holst, another tenant in the court. Plaintiff and Mrs. Holst “visited back and forth at each other’s trailers.” While going on -such a visit, plaintiff sustained her injuries.

The day in question was a rainy one. The rain stopped about 2:00 or 2:30 P.M. and the sun came out. Plaintiff left her trailer about 2:30 P.M. and walked directly toward a washhouse, a laundry room for the tenants, which was situated in line between plaintiff’s trailer and that of Mrs. Holst.

Plaintiff’s trailer was situated alongside a gravel road which went past the washhouse. She walked out of her trailer, across the gravel road, and down a grassy slope to the sidewalk. She was carrying her granddaughter, who was three or four months old at the time. The sidewalk toward which plaintiff walked led to Mrs. Holst’s patio, and that route was the one she generally took.

Adjacent to this walk used in common by the tenants and in the area where plaintiff fell defendant had piled dirt because he was building a trailer pad. The pad was of concrete and was installed a week or two before plaintiff fell. As part of the installation defendant placed fresh dirt around the pad. The pad was two or three feet higher than the walkway and the ground sloped from the pad to the sidewalk. Defendant knew that water ran down onto the sidewalk causing mud to accumulate, and from time to time he would have to shovel the walk free of mud.

Plaintiff could see where she was going, and saw the mud on the walk. She had seen mud on the walk before, but not too much, and never the condition as it existed that day. She did not recall the last time prior to her injury that she saw mud. Plaintiff described the area of the rear of Mrs. Holst’s trailer and the sidewalk as wet and real muddy, but “not bad, just sort of damp like.” She also described it as “black and murky and slick.” She hadn’t been in any mud before on that day. She remembered seeing the walk a couple of days before but there was no mud on it. She couldn’t see the sidewalk because of the mud. She didn’t know the condition of the walk because the mud didn’t look deep. “It just looked like it was shallow.” While attempting to walk on the sidewalk she slipped in the mud and fell at the edge of the walk.

There is no need to set forth the nature and extent of the injuries plaintiff sustained inasmuch as defendant makes no claim that the verdict is excessive.

Defendant’s first contention is that plaintiff was guilty of contributory negligence as a matter of law.

It is well settled that the court should never withdraw a question from the jury unless all reasonable men, in the exercise of a fair impartial judgment, would draw the same conclusion from the facts which condition the issue. This applies to the question of contributory negligence where, the problem is whether reasonable minds might differ as to whether plaintiff’s conduct generally conformed to that of a reasonably prudent person. Brandt v. Thompson, Mo., 252 S.W.2d 339.

Defendant asserts that contributory negligence as a matter of law exists because plaintiff knew that mud had been on the sidewalk before; that she took the shortest route; that the alternate route was a hard surface road; that a downpour had occurred, leaving the surface wet and that plaintiff described the walkway as “black, murky and slick.”

It has been repeatedly held that “ ‘ * * * * mere continued use of a common passageway, after knowledge of its dangerous condition, is not of itself conclusive evidence of a lack of due care on the part of the tenant, since such knowledge does not require the tenant to desist from using same in a careful manner, nor render the careful use of same contributory negligence. * * * ’ ” Roman v. King, 289 Mo. 641, 233 S.W. 161, 165, 25 A.L.R. 1263.

In Brewer v. Silverstein, Mo., 64 S.W.2d 289, l. c. 291, the court said: “* * * Although plaintiff knew the step was defective, yet, if she reasonably believed she could, with care, safely go upon it, her knowledge of its defective condition did not require her to desist from using it nor render the careful use thereof negligence on her part. * * * ”

In the case of Lewis v. Gershon, Mo.App., 335 S.W.2d 522, plaintiff sued her landlord for injuries sustained when she fell down the steps of a common porch. The evidence showed that the concrete porch and steps had been painted and were hard, smooth and “slicky.” Another tenant who used the steps was so afraid of falling that she hung onto the walls while descending. Plaintiff stated that the steps were “slicky” and she considered them so dangerous that she used them only every two days. The court held that it could not be held that her testimony established her contributory negligence as a matter of law.

In the case of Feld v. Frankel, Mo., 351 S.W.2d 755, our Supreme Court held that plaintiff, a tenant, was not contribuíorily negligent as a matter of law when he fell on ice on a common sidewalk.

The record is clear that plaintiff, although she had seen mud on the walk on prior occasions, had not seen such a condition as that which existed immediately prior to her fall. She had not walked in any mud on the date of her accident, and that which she saw appeared damp and shallow. While defendant says the evidence showed the grass and surface were wet, the evidence also showed that the sun was out, it was real hot, and Mrs. Holst’s concrete trailer pad was almost dry. Plaintiff stated that the mud looked “black and murky and slick,” and defendant construes such to be her description of what she saw prior to falling. Such a condition may reasonably relate to what she saw immediately after she fell and was a means of expression to convey her views to the jury.

In our opinion, under the evidence, reasonable minds may well differ as to whether she was exercising ordinary care for her own safety. Thus the question was one of fact for the jury to determine.

Defendant next contends that Instruction P-1 was erroneous. His first complaint is “ * * * this instruction is clearly erroneous because of its submission of a hypothesis of failure to warn when the evidence clearly indicated and Mrs. Buff, the plaintiff, testified that she knew of the condition of the walkway before she stepped on it and knew that the mud was slick.”

The instruction was in the conjunctive throughout. As said by the Supreme Court in the case of Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, l. c. 466: “ * * * We permit a plaintiff to hold a verdict under a verdict directing factual instruction submitting several charges of negligence in the conjunctive when the evidence establishes some but fails to establish all of the submitted grounds of recovery against defendant (technically incorrect but tolerated) on the reasoning plaintiff assumed an unnecessary burden with respect to submitted grounds devoid of proof and defendant was not prejudiced. * * ”

Another charge of negligence submitted in the instruction was fully supported by the evidence. In fact, it was not disputed. Thus, the error, if any, was harmless.

In paragraph three of the Instruction the jury was required to find “ * * * that on September 4, 1962, there was an accumulation of mud on the sidewalk area next to Defendant’s washhouse and that this sidewalk, by reason of the accumulation of mud was not reasonably safe to walk upon, and * * * if you further find that the Defendant knew, or by the exercise of ordinary care could have known of the accumulation of such mud on the sidewalk, and if you further find that the Defendant failed to use ordinary care to make the sidewalk reasonably safe and that as a direct result of such failure, * * *.” Defendant claims that the above language we have placed in italics gave the jury a roving commission to determine negligence upon any factor which they might consider to be a failure on the part of the defendant to use ordinary care. The contention lacks merit. Similar phrases have often appeared in approved instructions. And had the instruction permitted the jury to return a verdict for plaintiff “ * * * without a finding that [the] defendants were negligent or failed to exercise reasonable care.” it would have been erroneous. Martin v. Gilmore, Mo.App., 358 S.W.2d 462, l. c. 469.

Defendant’s next point is that the court erred in giving Instruction P-2. Its complaint is directed at the first paragraph of that instruction which reads as follows: “The Court instructs the jury that the mere fact that the Defendant claims that the Plaintiff, Dorothy Buff, was guilty of contributory negligence is no evidence that she was in fact contributorily negligent.” Defendant cites the case of Wise v. St. Louis Public Service Co., Mo., 357 S.W.2d 902, where the Supreme Court condemned the use of the words “mere fact of the occurrence” in a burden of proof instruction. That case was brought under the res ipsa loquitur doctrine. And, as the court pointed out: “ * * * The res ipsa loquitur doctrine is based upon the theory that a plaintiff is entitled to have his case submitted to a jury on the theory that the occurrence justifies an inference of negligence. * * * ” The instant case is clearly distinguishable from the Wise opinion. This because, unlike the Wise case, it was not submitted under the res ipsa loquitur theory. The distinction we here make finds full support in the holding of the Supreme Court in the later case of Keith v. Jos. G. Schmersahl Co., Mo., 371 S.W.2d 334, l. c. 337, 338. The language used in the instruction before the court in the Keith case was “ ‘ * * * and the mere fact of itself that plaintiff has brought suit * * *.’ ” The court said: “ * * * Furthermore, instruction 7 is not comparable either in form or substance to the condemned instruction in the Wise case. * * * ” The same can be said of the instruction here complained of. We rule the contention against defendant.

Finally, defendant contends that the court erred in failing to declare a mistrial because of improper argument of plaintiff’s counsel. During the closing-argument plaintiff’s counsel made the following statement: “Now, ladies and gentlemen of the jury, this case has come to rather an abrupt halt. Now, first of all I am compelled to point out that the defendant, by an order of the Court, had Mrs. Buff examined by a doctor, Dr. Holt.”

After defendant’s counsel objected and moved for a mistrial, the court advised plaintiff’s counsel, “ * * * I think I’d stay away from that. I don’t believe it has anything to do with the case.” To which plaintiff’s counsel replied, “All right, sir.” Plaintiff’s counsel thereafter, and out of the hearing of the jury requested the court to permit him to comment on the failure of the defendant to produce Dr. Holt as a witness.

To this defendant objected and his objection was sustained. After the court sustained his objection the defendant did not ask for any other relief. We fail to see where there was any abuse of the trial court’s discretion. See Rawley v. Eiler-mann Transfer Co. et al., Mo.App., 390 S.W.2d 937.

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment is affirmed.

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


author: WOLFE, Presiding Judge.

text:
    Josephine A. JENKINS, Plaintiff (Appellant-Respondent), v. Clarence R. JENKINS, Defendant (Respondent-Appellant).
    Nos. 31912, 31920.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Rehearing Denied Nov. 17, 1965.

      Morris B. Kessler, St. Louis, for plaintiff-appellant-respondent.
    Louis S. Czech, Clayton, for defendant-respondent-appellant.
   WOLFE, Presiding Judge.

This is an action for divorce brought by Josephine A. Jenkins against Clarence R. Jenkins. The defendant filed a cross-bill. The court found against the defendant on his cross-bill and granted a divorce to the plaintiff upon her petition. There were four children born of the marriage and the court gave custody of the children to the plaintiff with part time temporary custody to the defendant. The plaintiff was awarded $50.00 a week alimony and $60.00 a week for the support of the children. The plaintiff appealed, contending that the alimony and support money are inadequate. The defendant also appealed, contending that he should have been awarded the divorce on his cross-bill.

The plaintiff charged in her petition that the defendant failed to properly support his family. She averred that he associated with another woman and was cold and indifferent toward plaintiff and their children. She also alleged that he was addicted to habitual drunkenness and had been so for a year or more. The defendant answering denied all of plaintiff’s allegations as to his misconduct. In his cross-bill he alleged that plaintiff was possessed of a violent temper which she displayed without cause; she criticized defendant before his friends and associates, hurting his reputation; that she refused to go out with him; objected to him taking the children to church; refused to have marital relations with him; did not visit him when he was in a hospital; refused to cook meals; and that she maintained the home in a dirty and disorderly fashion.

The evidence presented by the parties was in diametrical conflict on all of the charges that each had alleged against the other.

The plaintiff testified that on two prior occasions she had brought suit for divorce but that there had been a reconciliation and the suits had been dismissed. She and her husband still lived in the same house but she does not occupy the same bedroom. She has had no marital relations with him since before filing the suit for divorce. She testified that their home was poorly furnished because the defendant would not buy furniture and that the windows were without drapes. She had charge accounts but was afraid to use them because some checks written in payment of bills had been returned for insufficient funds.

She stated that defendant took the children to a Baptist Church near their home and she went there very seldom because it was not her church. She was a Presbyterian but did not attend her own church except on a few occasions. She said that on Sunday he took the children to the country club and let them swim throughout the day while he played cards and drank. She said that he came home drunk about three nights a week. She stated that on such occasions he would revile her and that he had pushed her against the wall, called her vile names in the presence of the children. On one occasion when she wanted to call a doctor for her daughter who was ill he refused to let her do so and because of the ensuing argument plaintiff called the police. She stated that the defendant was a reckless driver when intoxicated and that he had had three accidents because of this. The plaintiff called to the stand her two older children, ages thirteen and twelve. Her son, who was the older of the two, told of riding with his mother to a parking lot one night. He said that they saw his father’s car parked there and that he was seated in it with a woman and that he had his arm up over the back of the seat. After the boy and his mother returned home his father came in and there were lipstick stains and make-up marks on his shirt. The plaintiff confronted him with the charge that he had been out with a woman but he denied it. The soiled shirt was offered in evidence by the plaintiff. It had marks upon it which she said were stains caused by cosmetics. The children corroborated the testimony of the mother about the defendant’s drinking. The daughter said that one Sunday after an outing at a farm where her father had been drinking she was so frightened on the ride home that she prayed all the way. The plaintiff’s sister told of the defendant coming to his home intoxicated one time when she was there with the children.

The plaintiff testified at length about her financial requirements and those of her children. She had an itemized list of various anticipated and actual expenses which totaled $950.00 a month. She put in evidence the income tax return for the preceding year in which defendant had reported an income of $25,000 as salary paid him by Keeven-Jenkins Real Estate Co.

The defendant testified that he bought the house in which they lived for $26,000. He said that his wife would not tell the builder the colors she desired in the decorating scheme so he told the builder to go ahead with the decorating and to do the best he could. They had about $1,000 at the time they moved in and some money expected from a house that they had previously owned and sold. He said that he told her to use the money to buy furniture but she replied that she would not spend a penny on the “big old barn.” He said that his salary check which he received every two weeks was deposited in a joint checking account upon which his wife could draw.

He testified that his wife had a very hot temper and that on many occasions she had struck him. Twice she had broken his glasses. She tore his shirt off and on one occasion kicked a hole in the television set. This was denied by the plaintiff on rebuttal. He said that his home was in a disorderly condition and that he got breakfast for the children while his wife slept. He regularly took them to Sunday School which he also attended, but his wife told the children they did not need to go. He took his son to Scout meetings and a boys’ baseball league games. Each Sunday in the summer time he took the children to the country club after Sunday School to spend the rest of the day. His wife did not want to go there and did not go out with them.

As to the matter relating to the woman in his automobile, he said that she had been a waitress in a restaurant where he used to lunch and that his company had sold her a house. He met her by chance on the evening in question and she said that she wanted to sell her house and move to California. He took her to dinner and was seated in his car afterwards talking about the sale of her house at the time his wife and son saw him. He denied that there were any stains on his shirt and said that he had not embraced or kissed the woman.

He presented evidence that his wife had made derogatory remarks about him in public and to his friends. As to his drinking, he said that he was a moderate drinker and that he had never been drunk. He admitted that he had had three accidents with his car but stated that these were caused because he had poor night vision and that by reason of this he no longer drives at night.

The evidence relating to the defendant’s income and his financial situation was scant. There was a tax return mentioned in which the defendant declared and paid tax on an income of $25,000 for the year 1962 as salary received from the real estate company, but he denied that he received this amount. He testified he was only paid $12,000 and stated that the $25,000 was just a ledger entry on the books of the Keeven-Jenkins Real Estate Company. He gave no further explanation of why he made the tax return for a sum over twice that which he said that he had received. He stated that if he lived alone his living expenses would be $625 a month.

The defendant had a one-half interest in the Keeven-Jenkins Real Estate Company. We assume that it is a corporation since the defendant said he is vice-president of the company; however, Keeven testified that he and Jenkins were partners. When asked what their salaries were, Keeven stated, "Well, I draw $1,000 a month, less income tax. * * * Ray draws the same salary.” He said that they might have to cut that amount because closings had been slow and that their bank account was low. He testified that their business did not just include the listing and selling of real estate but that they were also builders. The company had completed the construction of an apartment “project” upon which it had obtained a loan for construction and permanent financing in the sum of $724,000. The company had a 20 acre tract which was zoned for multiple dwellings and it is a 264 unit project. It had sold one tract soon after acquiring it for profit of $35,000.

The foregoing appears to be all of the evidence pertinent to the points herein raised and upon the evidence stated above court granted the plaintiff a divorce and awarded her custody of the four children with temporary custody each Sunday in the defendant. In addition the court made the mentioned award of alimony and support money.

By reason of the conflicts in the testimony a decision here must rest largely upon the credibility of the witnesses and the weight to be given their testimony. The trial court having the witnesses before it had a better opportunity to determine their veracity than this court has. In our review we give due deference to the findings of the trial judge but we do, nevertheless, reach our own conclusions and render such judgment as the evidence warrants. Politte v. Politte, Mo.App., 230 S.W.2d 142.

The defendant-appellant contends that the evidence was insufficient to grant the plaintiff a decree of divorce in that it affirmatively shows that she was not the innocent and injured party. In support of this assertion he relies chiefly upon the testimony of the children. They stated that their mother argued and displayed temper when quarreling with their father. They also testified that the father always started the arguments, and provoked the quarrels. Acts and words of retaliation are not sufficient to compel the finding that the retaliating party was not the innocent and injured one. A party to a divorce suit does not have to be without fault to be the innocent and injured party. We therefore rule this point against the defendant-appellant. Harwell v. Harwell, Mo.App., 355 S.W.2d 137; Myers v. Myers, Mo.App., 356 S.W.2d 522; LeBeau v. LeBeau, Mo.App., 366 S.W.2d 515.

The next point raised is that the court erred in awarding custody of the children to the mother. The ages of the children were 13, 12, 7 and 4 years. Children of tender years, as a rule, are left with the mother unless there is some compelling reason to do otherwise. The two younger ones here are certainly of tender years who need their mother and they should also enjoy the companionship and assistance of their older brother and sister. Jennings v. Jennings, Mo.App., 379 S.W.2d 159. There is no evidence here to indicate that the children would not be well cared for in their mother’s custody and the order of the court placing them there will not be disturbed.

The plaintiff-appellant complains of the award of alimony and support money for the four children. She asserts that $50.00 a week alimony and $60.00 a week for the support of the children is grossly inadequate. In fixing the amount of such an award, the factors that are generally considered are the financial status of the parties, including the amount of their individual estates, incomes, obligations and necessities. Clark v. Clark, Mo.App., 306 S.W.2d 641. If we limit ourselves to just one of these factors, the salary received by the defendant from his employment with the Keeven-Jenkins Real Estate Co., and if we assume that his income was $25,000 a year as shown by his last tax return, then the plaintiff’s contention has merit and the award is quite inadequate.

The defendant testified that he would need $625.00 a month for his own expenses and it is inconceivable that the wife could actually keep up a home and maintain the children properly on a sum less than the defendant considered necessary to meet his own living expenses. The court probably accepted as true the defendant’s statement that he drew only $12,000 gross as his salary. This, however, is no proof that the balance of his salary declared in his income tax return was not available to him.

Keeven and Jenkins each own an equal interest in their company and apparently Jenkins’ interest constituted his estate and the source of his income. The court refused to hear evidence of the financial standing of the company. The company’s earnings, its capital, its assets and liabilities and its future prospects are all material to a determination of a fair award of alimony and maintenance, but this was not in evidence. Neither the court below nor can we make an intelligent determination of the awards with this factor missing and the case must consequently be sent back for additional evidence touching upon these matters.

For the reasons stated, the decree granting the plaintiff a divorce is affirmed, and the award of alimony and maintenance is set aside. The awarded alimony and support money pendente lite will remain in force and effect and the cause is remanded for a further hearing and decree on the question of permanent alimony and maintenance in accordance with the views herein expressed. It is so ordered.

ANDERSON, J., and WOODSON OLDHAM, Special Judge, concur.

RUDDY, J., not participating.


author: SPERRY, Commissioner.

text:
    Ronald G. LYNCH, b/n/f Edgar S. Carroll, Plaintiff-Respondent, v. Fred ROSENTHAL, Defendant-Appellant.
    No. 24188.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied Oct. 4, 1965.

      Robert G. Oberlander, James B. Lowe, Kuraner, Oberlander, Lamkin, Dingman & O’Laughlin, Kansas City, for appellant.
    E. E. Thompson, Thomas A. Sweeny, Edgar S. Carroll, Popham, Thompson, Pop-ham, Trusty & Conway, Kansas City, for respondent.
   SPERRY, Commissioner.

Ronald G. Lynch, b/n/f, sued Fred Ros-enthal for damages because of personal injuries received when he got his right arm caught in a corn picker operated by defendant. Plaintiff had a verdict and judgment for $10,000.00, and defendant appeals.

Plaintiff was twenty-two years of age when the accident occurred, and twenty-four when the case was tried. He was a single man and lived at the farm home of defendant and his wife and family consisting, originally, of six children. Defendant’s wife took plaintiff and his sister out of the State Home for subnormal, or retarded children, at Marshall, Missouri, when plaintiff was twelve years of age. Plaintiff had, at that time, been in the home for about seven years. He could not talk. He had never gone to school and, when defendant’s wife attempted to enter plaintiff in school, he was rejected as unsuitable because of his size, age and mental condition. He was never adopted by defendant but lived in the home with the family. He was given room, board, clothing and some spending money and he helped with the farm and household work. He ate at the family table and was treated like defendant’s children. Sometimes, he worked for neighbors and for others, but he was never an employee of defendant in a legal sense.

Plaintiff pleaded, in his petition, that, on November 24th, 1962, he was in the employ of defendant; that defendant caused, directed and required him, in the performance of his duties, to assist in the operation of a corn picker on defendant’s farm; that he required and directed plaintiff to walk between the corn picker and a wagon which was pulled behind the picker, into which corn from the elevator on the picker was discharged; that plaintiff was required to retrieve and place in the wagon any corn which might fall on the ground instead of into the wagon; that, while so walking, he stumbled on the wet, slippery, and uneven ground and his right arm was thereby-caused to be caught in the moving parts of the mechanical corn picker causing severe injuries to his arm; that plaintiff was inexperienced in this work and unfamiliar with the attendant dangers; that defendant negligently failed to warn him of the dangers and negligently failed to furnish him with a reasonably safe place to work; and that plaintiff was negligently required to walk and work in dangerously close proximity to the exposed moving parts of the corn picker.

The picker used in this operation was self propelled. Defendant, as operator, sat on a seat, high up, so that he could properly steer it and also look back to see if the corn was going into the wagon, which was fastened to the draw-bar on the rear of the picker. There were three prongs on the front of the picker, and two rows of standing corn would come between the prongs, so that the ears would be snapped off and elevated into the shucking mechanism that ran across the picker, thence through the shucking rollers, which were exposed. The mechanism of the picker was operated by the motor. When the shucking process was completed the corn would drop into a slot from which it would be elevated upward and to the rear and,. finally, be dropped into the middle of a wagon pulled behind the picker. The wagon was attached to the draw-bar on the rear of the picker by a four foot tongue. The distance between the front of the wagon and the rear axle of the pickér, from which the elevator extended upward and to the rear, was about four feet.

When the trial began, plaintiff’s counsel advised the court and defendant that plaintiff was mentally subnormal; that his mental capacity was that of a nine or ten year old child; and a next friend was appointed by the court. Plaintiff’s counsel caused their client to be examined by a competent psychiatrist so that he could testify as a witness as to plaintiff’s mental capacity, and offered to make plaintiff available for such examination by competent physicians of defendant’s choosing, which offer was declined.

Defendant testified that plaintiff had been taken from the State institution by Mrs. Rosenthal when he was twelve years of age; that he, thereafter, lived in defendant’s home as a member of the family, and still lived there at the time of the trial; that plaintiff would always do what defendant requested him to do with regard to work around the farm and house; that he directed him to walk behind the picker and throw into the wagon such corn as might fall on the ground; that he did not tell him to walk behind the wagon; that he did not instruct him, in detail, as to where to walk but he thought he would walk behind the wagon; that, when he looked back, plaintiff was walking behind the wagon; that he did not warn him not to get close to the picker, nor that the picker was dangerous, nor did he tell him what caused it to be dangerous; that he knew that plaintiff had to be told, repeatedly, how and what to do and that he soon forgot instructions; that he could not read but could write his name; that he could not remember how much corn to feed the hogs, although defendant’s son could efficiently feed the hogs when he was a small boy; that plaintiff could not remember, although he would tell him, to keep the dogs out of the milk when he did the milking; that he was never interested in girls; that he did not drive an automobile or ride a bicycle; that he had a great deal of trouble operating a power lawn mower; that he had gotten his hand injured in a corn picker while helping another person pick corn, although he had been warned, and warned, and warned; that when he looked back, he saw plaintiff standing on the axle of the picker with his right arm caught in the shucking rollers; that he would never know how he got in that position; that, if he had seen him walking behind the picker and in front of the wagon, he would not have permitted it, because it was dangerous for him to do so.

Dr. Lytton, a qualified child psychiatrist, was a witness for plaintiff. He testi-ied to the effect that he examined plaintiff and administered certain tests commonly used in such cases. He gave it as his opinion that plaintiff had the mental capacity of a child of from nine and one half to ten and one half years of age; that he had an I. Q. of 65 as compared to a national average of 100; that he is not mentally ill, just has a low mental capacity; that he is unlike a normal ten year old child in that he cannot use his actual mental ability in a meaningful way; that most ten year olds can ride a bicycle; that, since plaintiff cannot do so, he has a mental level of less than ten years; that he does not have the ability to appreciate the danger of moving machinery, but he can comprehend a warning to stay away from it; that he can not do a simple syllogism; that he is incapable of abstract reasoning; that most ten year olds can tell time but plaintiff cannot; that there are three classifications of subnormal mentality, to-wit: moron, low moron, and idiot; that plaintiff is a low moron; that the extent of his mental incapacity would be apparent to any normal person who might live around him.

Defendant’s estranged wife stated that she took plaintiff from the institution because she wanted to “give him freedom”; that she sought to enter him in school but permission was refused because of his age, size and mental condition; that, when plaintiff worked on her father’s farm machinery, her father warned him every time he worked on it, of danger, yet he was hurt by a corn picker; that he ran a tractor for a neighbor and drove it into a barn; that, when he fed hogs for defendant, he would sometimes give them enough corn to last four or five days; that defendant would explain to him and yet he would do the same thing again and again; that he could not remember to keep the dogs out of the milk, when milking; that he could not ride a bicycle or drive a car; that he could not properly operate a power lawn mower, that it was constantly broken down; that, while working on a church building project, he was told to burn useless scrap lumber, and that he burned $400.00 worth of new oak flooring.

Plaintiff stated that defendant told him to pick up corn behind the picker; that he told him to walk behind the picker; that he walked about three feet behind and to the right of the picker. (He also said that he walked twenty feet to the right of the picker). He stated that, as he walked near the rear of the picker, a corn stalk was pulled up and cast against his shins; that he stumbled and fell into the picker; that he caught at a metal shield near the open husking rollers, and his right arm went into the rollers; that he then got up on the draw-bar with his left foot; that defendant did not warn him about walking in close proximity to the picker; that he knew that it was dangerous to get too close to moving parts of machinery.

At the close of the evidence plaintiff asked and was granted leave, over objection, to amend his petition so as to allege as negligence, defendant’s failure to warn of the danger of walking in close proximity to the picker and its moving parts. The case was submitted on that specification of negligence. Defendant claims error in permitting the amendment and in denying his application for a continuance to permit time for preparation for refutation of the allegation.

Defendant does not contend that there was not substantial evidence tending to prove the theory upon which the case was submitted. He pleaded in his answer that plaintiff was guilty of contributory negligence and that he assumed the risk. Plaintiff’s and Mrs. Rosenthal’s depositions had been duly taken and there is nothing in this record to indicate that their testimony, given at that time, differed materially from that which they gave at the time of the trial.

Defendant, himself, was present at the time the injury occurred. He knew the facts of the accident better than anyone except the plaintiff. He had intimately known plaintiff since he was twelve years of age, and knew he was mentally subnormal. His counsel knew that, because of plaintiff’s mental condition, defendant was duty bound to exercise ordinary care for the safety of that particular plaintiff, in view of all of the facts. Cathey v. DeWeese et al., Mo., 289 S.W.2d 51, 56, 57. The theory pleaded in the amendment was inherent in the facts and circumstances of this case, form the very time the accident occurred. Defendant was, in effect, put on notice thereof when a next friend was appointed by the court, before the trial began. He knew that plaintiff was examined by a psychiatrist and was informed that he was available for medical examination by competent physicians to be selected by defendant. Defendant was informed, on Wednesday, before the trial ended on Friday, that this amendment would be offered. The evidence in support of the allegation contained in the amendment was admitted without objection. Evidence in support of the allegations of defendant’s answer would also tend to disprove the allegations of the amendment.

Defendant offered no evidence as to how the accident occurred except that of his own testimony. There is no suggestion that other evidence on that issue is available. He offered no medical evidence as to the extent of the injuries and does not claim that the verdict is excessive. He offered no medical evidence as to plaintiff’s mental capacity although he was afforded ample opportunity to procure such evidence two days before the trial ended, after having learned that plaintiff’s mental capacity would be an issue.

Permitting the amendment and denying a continuance was within the sound discretion of the trial court. That discretion was not abused in this case. Davis v. Kansas City Public Service Company, Mo., 233 S.W.2d 679, 683; Ethridge v. Perryman, Mo., 363 S.W.2d 696, 703.

Defendant contends that there can be no recovery because the injury was the result of an unintentional tort and that he stands in loco parentis to plaintiff. He cites Dix v. Martin, 171 Mo.App. 266, 157 S.W. 133, where this court (135) recognized the established rule that where a person assumes towards a child not his own a parental character, and holds the child out to the world as a member of his family towards whom he owes the discharge of parental duties, he stands in loco parentis to the child. We know of no Missouri court decision where the doctrine has been applied to an adult person. Defendant did not plead or instruct on this issue. The evidence as to plaintiff’s relationship with the defendant came almost entirely from defendant and from Mrs. Rosenthal. The latter, who was called as a witness by defendant, stated that she took plaintiff from the Home and that she had treated him approximately as she did her own children, but that her own children came first. She also testified, without objection, that she accompanied plaintiff to the hospital and signed his entrance contract and agreed to be responsible for the expense of treatment ; that defendant was not then present; that, when she returned home thereafter, defendant asked what the expense would be and she stated “about $10,000.00”; and that he refused to pay the bill. There is no evidence to the effect that defendant held plaintiff out as his son; and his refusal to pay his medical expense tends to prove that he did not consider himself as standing in loco parentis to plaintiff. The evidence did not establish that defendant intended to occupy such a position. Horsman et al. v. United States et al., D.C., 68 F.Supp. 522, 524. Under the evidence here we cannot declare, as a matter of law, that such a relationship existed, even if the rule could be extended to include a twenty-two year old person.

Defendant also contends that he owed plaintiff no duty to warn him of danger because plaintiff was using defendant landowner’s premises “for purposes connected with his own benefit, pleasure, and convenience”, that he was a bare licensee. In Glaser v. Rothschild, Mo., 120 S.W. 1, 22 L.R.A..N.S., 1045 (syllabi), the court held that a bare licensee takes premises as he finds them but that the landowner is required to exercise ordinary care for the safety of an invitee. Plaintiff was in the cornfield and in close proximity to the picker at the instance and direction of defendant, for defendant’s benefit. Defendant was required to exercise ordinary care towards plaintiff to avoid injuring him. Plaintiff was not an employee, license, or a trespasser; he was an invitee. Fletcher v. Kemp, Mo., 327 S.W.2d 178, 182; Daugherty v. Spuck Iron & Foundry Company, Mo.App., 175 S.W.2d 45, 49.

Defendant pleaded and submitted the issue of plaintiff’s contributory negligence. He now urges that he was contributorily negligent as a matter of law.

In support of this contention he points out that plaintiff stated in evidence that he knew that it was dangerous to get too close to the husking machinery of a corn picker, that he might be hurt if he did. However, there was medical evidence to the effect that plaintiff’s mental condition was such that he would understand a direct warning to stay away from such machinery, which defendant did not give, but that he might not be able to understand the reason therefor. The extent of his mental deficiency was fully explored in the evidence, and the testimony of Dr. Lytton and Mrs. Rosenthal made his mental condition clear. Plaintiff also testified, and the jury had an opportunity to judge that issue from his testimony for they saw the witness and heard his testimony. There was evidence from which the jury could have found that his full usable mentality was below that of a ten year old child. In Cathey v. DeWeese, Mo., 289 S.W.2d 51, the court considered the question of whether a seventeen year old ninth grade boy, of average intelligence and ability, was guilty of contributory negligence as a matter of law, when his foot got caught in a hay baler. The court said (55-56) that, although he had seen the printed sign of danger appearing on the machine and knew, independently, that it was dangerous to come in contact with the rollers of the machine, that such was not sufficient for the trial court to declare contributory negligence as a matter of law. The court said “ * * * the question is whether, by reason of his youthfulness and inexperience, reasonable minds could differ as to his realization and appreciation of the danger”. The verdict in plaintiff’s favor was ordered re-instated. The facts in that case were far stronger in support of a ruling of contributory negligence than they are in the case at bar. In Jones v. Jones, Mo.App., 384 S.W.2d 807, this court considered a case where plaintiff was a mature man of ordinary intelligence who was injured while pulling on a pulley at the direction of the owner. We approved a verdict for plaintiff on the theory that he relied on the direction and assurances of defendant that it was a safe thing to do, plaintiff not being familiar with that operation. Here, there is testimony to the effect that defendant directed plaintiff, a mentally subnormal person, to walk behind the picker, between it and the following wagon, which defendant himself admitted was a dangerous place to walk. The plaintiff’s contributory negligence, under the evidence here, was for the jury to determine.

Defendant charges error in the giving of instruction No. 1, in that it is therein assumed that defendant knew or should have known that it was dangerous to direct plaintiff to walk near the picker. No part of the instruction is set out in the brief in violation of Rule 83.05(a), V.A.M.R. Miller v. Wilson, Mo.App., 381 S.W. 2d 31, 37. The point is not reviewable. However, the criticism is not justified. The instruction is further criticised because it is assumed therein that plaintiff’s arm became engaged in the picker as a result of walking near the picker. That criticism is, also unjustified.

It is also urged that error was committed by counsel for plaintiff in his final argument when he said: “there is a mistake here, we sued for $25,000.00. We don’t want $25,000.00; we want $10,000.00. We don’t want 25; we want $10,000.00. We don’t want any more, but we don’t want any less. * * * Ordinarily, as a lawyer representing an injured man, I’d say give him $14,000.00 plus the $4,000.00 that he’s actually out — $18,000.00 at a minimum; but in this case just ten * * * when nine of you have agreed on a $10,000.00 verdict for him, put on your hats and go home”. Defendant says the argument was calculated to and did inform the jury that his liability was insured for $10,000.00, which fact was true and known by plaintiff to be true. He cites and relies on the ruling in Adams v. Carlo, Mo.App., 84 S.W.2d 682, 686. There the court reversed and remanded. But plaintiff’s Counsel there boldly stated that there was insurance to cover the verdict against defendant. That ruling has no application to this case. Here, no reference was made to insurance. Counsel was merely exercising the privilege of an advocate to indulge in his natural art of persuasion.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


author: MONTGOMERY, Judge.

text:
    C. Hobart MILLS et al., Appellants, v. Henry BROUGHTON et al., Appellees. C. Hobart MILLS, Appellant, v. Henry BROUGHTON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.
    W. L. Rose, W. M. Cox, Jr., Williams-burg, for appellants.
    Charles G. Cole, Jr., Barbourville, for ap-pellees.
   MONTGOMERY, Judge.

In Mills v. Broughton, Ky., 365 S.W.2d 315, the elections of Mattie Mills and C. Hobart Mills, as jailer and magistrate, respectively, were invalidated in favor of Lester Broughton and Henry Broughton, respectively. Upon issuance of the mandate the Broughtons sought to recover damages against the Millses and their sureties under their supersedeas bond. The Honorable M. J. See, sitting as special judge, had tried the election contest and, over objection, determined the matter of damages. Lester Broughton recovered judgment for $2,993.07. Henry Broughton recovered judgment for $1,257.40. Appropriate appeals have been perfected. The appeals have been considered on the same record.

It is urged for reversal that the special judge had no authority to take further action or to try the matter of damages under the supersedeas bond, that a de facto officer is entitled to compensation for services rendered pending the election contest, and that the findings of fact and conclusions of law of the trial judge were erroneous.

The special judge was designated by the Chief Justice of this Court for the trial of this action and one other “to be tried by the judge at his discretion.” Appellants rely on Helton v. Commonwealth, Ky., 256 S.W.2d 14, wherein it was held that “a judge appointed for a special term under KRS 23.260 to try designated cases, may not, of his own volition, later call another special term and retry the cases, over the objection of the interested parties.”

The Helton case is inapplicable here. KRS 23.260 deals with the appointment of a special judge for a special term. KRS 23.-230 governs the appointment of a special judge when a judge of a circuit court cannot preside “in an action pending in the court.” Here, the regular judge had disqualified and the special judge was appointed to try this action “at his discretion.” It is to be noted that the designation made no reference to the trial of this action at any specific term of court. Under the circumstances the designation is construed to mean that the special judge should try the action to its conclusion or final determination. This, of course, would include an assessment of damages under a supersedeas bond. Such conclusion is consonant with common sense and in the interest of the efficient administration of justice. A similar result was reached under earlier statutes. Dupoyster v. Clarke, 121 Ky. 694, 90 S.W. 1, 28 Ky.Law Rep. 655; Warner v. Ford Lumber & Mfg. Co., 123 Ky. 103, 93 S.W. 650, 29 Ky.Law Rep. 527, 12 L.R.A.,N.S., 667; Dial v. Commonwealth, 143 Ky. 118, 136 S.W. 139; Sublett v. Gardner, 144 Ky. 190, 137 S.W 864.

It is urged in behalf of C. Hobart Mills, the de facto magistrate, that he performed the duties of the office pending the election contest and should be allowed to retain the compensation. The amount recovered by Henry Broughton was the salary paid, less actual travel expense.

The rule is that a de jure officer is entitled to recover of a de facto officer the compensation of the office, less actual customary and necessary expenses. Bernard v. Humble, 298 Ky. 74, 182 S.W.2d 24. The case of Hubbard v. Ledford, 258 Ky. 704, 81 S.W.2d 569, is on all fours with this case. See Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171, for collected cases. There is no merit in appellant’s contention.

Finally, Mattie Mills complains that the amount found to be due appellee Lester Broughton, as jailer, was erroneously determined. The amount paid Mattie Mills was stipulated. Depositions were taken to establish the amount of expense she had paid in operating the jail. The evidence was in conflict and the testimony offered in behalf of appellee Lester Brough-ton was sufficient to sustain the findings of the trial judge on the factual issues. The reference in the findings to the ration allowance to West Point cadets and the information from other jailers is treated as surplusage in view of the substantiating evidence.

Judgment affirmed.

HILL, J., not sitting.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Linville HARVEY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    C. Kilmer Combs, Ashland, Earl R. Cooper, Marcus Mann, Salyersville, for ap-pellees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding the appellee landowners $15,000 as damages for property taken by condemnation for highway purposes.

The property involved was a 73-acre farm in the hills of Magoffin County. The state took 9.41 acres through the middle of the farm for a nonaccess highway, leaving two landlocked parcels. On the land taken were the house, barn, coal house and chicken house. All of the witnesses agreed that the “after” value did not exceed $1,000. The conflict came in the estimates of “before” value.

The witnesses for the state, using comparable sales, fixed the “before” value at $8,000. One of the landowners, testifying for himself, put the value at $16,500. The only other witness for the landowners, who qualified as an expert, estimated the value at $17,500.

The landowner did not support his estimate by any comparable sales and in fact he showed almost no basis of qualification to express an opinion of market value. Furthermore, it was made quite clear on cross-examination that the real basis of his estimate of value was his nebulous concept of what the farm “was worth to him.” The motion to strike his testimony should have been sustained. See Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720; Commonwealth, Dept. of Highways v. Merriman, Ky., 392 S.W.2d 661 (decided June 25, 1965); Commonwealth, Dept. of Highways v. Darch, Ky., 390 S.W.2d 649.

The expert who testified for the landowners gave absolutely nothing to support his estimate of $17,500 other than his bare opinion as an expert. It is true that a showing of comparable sales is not required to make competent an expert’s estimate of value. Commonwealth, Dept. of Highways v. Brubaker, Ky., 375 S.W.2d 404. But where the unsupported estimate of an expert considered in the light of the circumstances disclosed by the rest of the evidence appears extravagant, the estimate may lack full credibility and be insufficient to sustain a verdict in the amount of the estimate. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

In the instant case the farm was in a remote, hilly, rural area. The improvements, pictures of which are in the record, were modest. The house lacked plumbing and central heat. A person with an average knowledge of land values would not find elements of value totalling a figure as high as the estimate of the expert witness here. The entire property was assessed for taxation at only $550. There are indications that the witness substantially overestimated the amount of bottom land in the farm. Under these circumstances the estimate of value by the witness strikes us as extravagant, and since it lacks any support in comparable sales or otherwise we are of the opinion that it does not have sufficient probative value to sustain a verdict as large as the one here returned.

The judgment must be reversed because the verdict is not sustained by the evidence.

The appellant complains of the admission of certain colored photographs of the farm and improvements, the basis of the complaint being that the photographs did not fairly and accurately represent the appearance of the property. See Commonwealth, Dept. of Highways v. Williams, Ky., 317 S.W.2d 482. The only specific defect pointed out is that the photographs show the barn as being a good, solid blue color whereas in fact the barn was a faded brown color. We think this is trivial.

The judgment is reversed with directions for further proceedings in conformity with this opinion.


author: WADDILL, Commissioner.

text:
    Ernest HENDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      Robert G. Lawson, Carl Hoot Combs, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

This appeal seeks reversal of a conviction of the crime of voluntary manslaughter on the grounds that appellant was unlawfully deprived of assistance of counsel and was not granted a reasonable opportunity to prepare his defense.

Appellant was arrested August 3,1964, on the charge of willful murder and counsel was appointed to represent him. When he was arraigned upon an indictment on September 21, 1964, he posted bond and was released from custody. The case, which had been assigned for trial on January 12, 1965, was continued to February 2, 1965, and new counsel was appointed to defend him. On February 2, 1965, appellant obtained a continuance to April 13, 1965. On the latter date he again moved for a continuance on the ground that he had been unable to obtain the identity of certain people who had possibly witnessed the fracas which had resulted in his arrest. This motion was overruled.

It is now settled that the accused is entitled to be represented by counsel at every critical stage of the criminal proceeding and that this right attaches when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on him as a particular suspect. Carson v. Commmonwealth, Ky., 382 S.W.2d 85; Escobedo v. State of Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). With this rule to guide us, we look to the record to ascertain whether appellant’s constitutional rights were violated as he now claims.

Although appellant was represented by counsel at the preliminary hearing, at each time the continuances were granted and at the trial, he asserts that, because neither of the lawyers who defended him during the trial was the one who represented him at the preliminary hearing, he was deprived of effective assistance of counsel.

The fact that there was of necessity a change of counsel which resulted in appellant’s being without an attorney for a short period is not constitutionally objectionable because the record shows he was ably represented at each critical stage of these proceedings. Hence, this claim is unavailing.

As previously indicated, the attorneys who represented appellant during his trial had been given approximately three months in which to prepare his defense. The fact that these attorneys had been unable to find witnesses who would testify in his behalf did not of itself justify a further continuance. It appears to us that the trial court was exceedingly careful in affording appellant a fair trial.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Verna ELDRIDGE, Appellant, v. Lloyd PIKE and Thomas R. Pike, Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      C. W. Napier, Jr., Hazard, for appellant.
    Stephen Combs, Jr., Ronald Polly, Whitesburg, for appellees.
   STEWART, Judge.

This action was instituted by Verna Eld-ridge against Lloyd Pike and Thomas R. Pike to recover damages for personal injuries arising out of a station wagon and truck collision. Lloyd Pike, the owner of the truck, filed a counter-claim against Verna Eldridge to recover damages to his truck.

The jury returned a verdict finding joint negligence on the part of the parties to this action and did not award anything to either of them. Verna Eldridge has appealed. These grounds are urged for reversal:

(1) That the verdict is not sustained by the evidence; and that it was returned by the jury in disregard of the evidence and the instructions and while they were under the influence of passion and prejudice.

(2) That the trial court erred in excluding certain evidence.

(3) That the trial court erred in failing and refusing to instruct the jury properly.

The collision occurred about 9 a. m. on a clear day when the station wagon driven by Verna Eldridge met on a one-way bridge a loaded coal truck operated by Thomas R. Pike. The one-way bridge, 70 feet in length, is located on Kentucky Highway No. 7 in Letcher County between Blackey and Whitesburg. The station wagon was proceeding northwardly toward Whitesburg and came down a steep decline just before reaching the bridge. The truck was traveling southwardly toward Blackey and came around a sharp curve to the left onto the bridge. The truck driver’s visibility was hindered by buildings, trees and the bridge frame.

Conflicting evidence was presented by the opposing parties as to which vehicle first entered upon the bridge, as to the speed of the respective vehicles, and as to where on the bridge the impact occurred. A head-on collision resulted and the vehicles came to rest near the south end of the bridge. Verna Eldridge was alone in the station wagon and one Hubert Pike was a passenger in the truck. There was testimony to the effect that the truck driver stated he was to blame for the accident; he denied he made any such admission.

We conclude the issues of whether the driver of the truck or the driver of the station wagon, or both, were responsible for the accident were properly submitted to the jury for determination. In Pope-Cawood Lumber & Supply Co. v. Carroll, 236 Ky. 366, 33 S.W.2d 360, a collision occurred between a Ford car and a truck on a narrow bridge. This Court held “ * * * the case really turns on which machine, the truck or the Ford, was on the bridge first. * * * In view of the conflict in evidence, it is at once apparent that the question of negligence and contributory negligence was for the jury * * See also Rice v. Franklin Title & Trust Co., 299 Ky. 142, 184 S.W.2d 896; Short v. Robinson, 280 Ky. 707, 134 S.W.2d 594.

We believe the verdict is amply supported by the evidence. Furthermore, there is no showing, other than the bare assertion of appellant, that the jury in anywise disregarded the evidence and the instructions of the trial court or that they acted under the influence of passion and prejudice when they returned the verdict.

The next contention of appellant is that two witnesses were not permitted to express opinions about matters peculiarly within their knowledge. The first of these complaints concerns Trooper Jerry Combs who came to the scene of the accident some time after its occurrence, in order to investigate the collision. He testified, among other things, that the station wagon was knocked back 37 feet after its impact with the truck. He was then asked on re-direct examination “ * * * would the truck had to be going at a fast rate of speed or not in order to have shoved the car that way?” An objection was interposed and sustained to this question.

It appears the only qualification relied upon to support this opinion evidence was the fact that this witness was a member of the state police. In Redding v. Independent Contracting Co., Ky., 333 S.W.2d 269, the testimony of two state troopers, who arrived at the site of the accident about a half hour after it had happened, was held to be “clearly incompetent and valueless” in respect to how fast a motorist’s automobile had been traveling immediately before the impact of the vehicles, without any showing that they had observed similar accidents. Cf. E. P. Barnes & Bros. v. Eastin, 190 Ky. 392, 227 S.W. 578. The testimony of the state trooper in the case at bar was along the same line as that in the Redding case, and it was inadmissible because of the same lack of adequate qualifications. Furthermore, we conclude that, if Trooper Combs had been permitted to give an opinion as to the speed of the truck, under the circumstances, it would have been nothing more than a random guess.

Later, on re-cross examination, one of the jurors asked this same trooper why he had determined after his investigation to give a ticket to Thomas R. Pike, the truck driver. The trooper responded: “I asked this boy * * * how come he went on the bridge so fast and he said, T just don’t know,’ so, of course, I issued him a citation for failing to yield the right-of-way because the woman was definitely on the bridge before he got on it, * * This testimony was objected to and the jury was told to disregard it. Appellant insists this evidence was admissible.

The trooper’s statement that the station wagon “was definitely on the bridge” before the truck entered upon it was clearly the unwarranted conjecture of a person who did not see the accident and, for this reason, was inadmissible. See Wagner v. Emmett, Ky., 280 S.W.2d 210. The proof was in dispute on this point; and, under the facts presented, it was solely the jury’s prerogative to resolve this question.

As to the portion of the trooper’s testimony that the driver of the truck told him he did not know why he “went on the bridge so fast,” it will be remembered the jury found both the truck driver and the station wagon driver were jointly negligent in causing the accident, with the result that, even if this particular evidence was admissible, its rejection by the trial court was not prejudicial to appellant. See Head v. Russell, Ky., 307 S.W.2d 557.

Appellant next argues that the trial court wrongfully excluded the deposition testimony of another witness, Dr. William E. Powles, of Cincinnati, Ohio, who was used by her as an expert. He was asked the amount of money it would require to undertake the restoration of appellant’s health, and the expense incident to travel necessary to achieve such a result. Dr. Powles’ opinions on these two matters were based upon a psychological examination of appellant on December 20, 1963. He had only this one brief session with her. Therefore, his knowledge of appellant’s condition was apparently so scant that it is inconceivable he could do more than surmise concerning these factors.

The intent was to secure from him as a medical expert an estimate of a sum that could be included in an award by the jury, based upon the injuries she claimed she received. The jury dismissed her complaint because of a finding that she was jointly negligent in connection with the accident. In Yandell v. Anderson & Spilman, 163 Ky. 702, 174 S.W. 481, it was stated: “It is sufficient to say that the rejected evidence bore solely on the question of damages, and we have frequently held that error in rejecting evidence on the question of damages is not prejudicial where no damages are allowed.” See also Lam v. Earlington Mach. Works, 170 Ky. 384, 186 S.W. 152. Thus, if there was error upon the part of the trial court it was not prejudicial.

Appellant also contends the trial court committed error by sustaining the objection of appellees to certain rebuttal testimony of Leo Parsons in respect to an admission against interest made by the driver of the truck. A reading of the rebuttal testimony of Leo Parsons clearly reveals that the trial court, after excluding the evidence in question, later allowed it to be given as it was set forth in the avowal. There was no error perpetrated under the circumstances.

The final argument is that the judgment should be reversed because the trial court refused to instruct the jury as to damages for the permanent injuries claimed to have been received by appellant. The error, if any, in refusing to instruct in respect to appellant’s permanent injuries was harmless because the jury exonerated appellees of any liability stemming from the accident. When the jury found appellees were not liable they did not reach the ques-,) tion of the measure of damages. See Hogle’s Guardian v. Wolfzorn, 248 Ky. 396, 58 S.W.2d 577; Goodwin v. Miller, 210 Ky. 407, 276 S.W. 117.

Wherefore, the judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    Henry COLLINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.
    Wix Unthank, Harlan, for appellant.
    Robert F. Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Henry Collins, was convicted of transporting alcoholic beverages in dry local option territory for the purpose of sale. He was fined $20.00 and sentenced to thirty days in jail.

At the trial only two witnesses testified, Henry Goley, field representative for the State Alcoholic Beverage Control Board, and Dolphus Parman, a state trooper. Goley testified that prior to the date of Collins’ arrest he had warned him that his 1953 Chevrolet car bearing a Tennessee license plate had not been registered properly in Kentucky. He stated that on July 17,1963, he drove down U. S. Highway 119 and when he approached a point in the road near Tremont he observed a car on a side road and recognized the car as the one with faulty registration and improper license plates. He went down the road about 5Ó0 yards, turned and came back. The Collins car had made the turn and was proceeding in the same direction. He followed the car and after he had traveled about a mile, he stopped it within a few feet of where the trooper’s cruiser was parked on a side road with its lights on. Collins got out of his car and was standing with his hands on the door when Goley walked over to the car. He could see a number of cases of beer and other intoxicating liquors in plain view in the back of the car. There had been some attempt to cover them with a small quilt. The trooper came over to the scene and parked his cruiser behind the Chevrolet. He stated that the door of the Chevrolet was open and one could see cases of alcoholic beverages stacked up in the back of the car. Collins was arrested and later indicted for transporting alcoholic beverages.

Appellant contends that under Lane v. Commonwealth, Ky., 386 S.W.2d 743, an officer who stops a car for a traffic violation has no right to search the vehicle for evidence of other offenses. It was noted in that case that it would be impossible to lay down a rule that would apply to every possible factual situation. This case, however, is readily distinguishable from the Lane case because the contraband could be seen without a search.

In Taylor v. Commonwealth, Ky., 394 S.W.2d 895, decided October 15, it was stated: “If law enforcement officers have a bona fide reason for stopping a motor vehicle, the discovery of incriminating evidence in plain view may be shown in evidence against the accused. Commonwealth v. Robey, Ky., 337 S.W.2d 34, 87 A.L.R. 2d 923; Clark v. Commonwealth, Ky., 388 S.W.2d 622.”

It is contended that the trial court coerced the jury to return a verdict in this case. This is what took place:

After deliberation, the jury returned to the courtroom.
“THE COURT TO THE JURY: Have you reached a verdict?
“MR. SCOTT (Foreman) Your honor, the jury can’t agree.
“THE COURT The jury can’t agree?
“MR. SCOTT (Foreman) No, not on a verdict.
“THE COURT: sider the verdict. Somebody has as somebody else.” I’m going to let you go back and con-to try the case. It might as well be you

We find nothing wrong in the rather mild admonition to the jury to perform its duty.

Appellant next contends that the court erred in refusing his counsel the right to explain, during his final argument, why appellant did not take the stand and testify in his own behalf.

At the completion of the evidence in behalf of the commonwealth appellant moved that the court peremptorily instruct the jury to find for appellant. This motion was made in chambers, not in the jury’s presence. At the conclusion of his argument counsel for appellant apparently attempted to explain why the appellant had not taken the stand in his behalf. He was stopped by the court. Thereupon, counsel entered this statement into the record:

“Comes Defendant’s Attorney by avowal and states that in his final statement to the jury that he was going to state as follows: That, the defendant had made a legal motion to the Court for an acquittal upon the grounds that the evidence introduced by the Commonwealth was insufficient; that the Court had overruled this motion; that the overruling of this motion by the Court merely meant it was the Court’s opinion that there had been sufficient evidence introduced to constitute a jury case, and that it was still a question for the jury to decide as to whether or not there had been sufficient evidence beyond a reasonable doubt presented in this action to warrant a verdict of guilty; that upon the admonition of the Court to the Defendant’s Attorney in the presence of the jury, the Attorney for the defense will stand silent and rely upon its objections and motions in this record.”

We believe the court was correct in denying counsel the right to make such a statement to the jury. The trial court stated that the motion for a directed verdict was made and discussed in the absence of the jury. They therefore knew nothing of the motion and were not concerned with its legal implications.

The closing argument to the jury should be confined to the facts brought out in the evidence. Broyles v. Commonwealth, Ky., 267 S.W.2d 73. The record contains no evidence to support the statement which appellant’s counsel desired to make to the jury. It is entirely possible that he may have had other compelling reasons for not testifying. Section (1) of KRS 455.090 grants to the defendant a right to testify in his own behalf and states “but his failure to do so shall not be commented upon or create any presumption against him.” Ordinarily our cases have dealt with situations where it was contended that the commonwealth had violated the terms of that section. It seems that generally the statute intends that this is a matter concerning which all parties, including the court, shall remain silent. See Roberts v. United States, 4 Cir., 137 F.2d 412; State v. Ippoch, 242 N.C. 119, 83 S.E.2d 798.

It is not necessary for us to discuss appellant’s complaint concerning the opening statement made by the commonwealth’s attorney because that statement does not appear in the record and is not reviewable. Moore v. Commonwealth, Ky., 384 S.W.2d 498; Maise v. Commonwealth, Ky., 380 S.W.2d 230.

Judgment affirmed.