author: DONNELLY, Judge.

text:
    James Winfred MOSS and Mildred E. W. Moss, Husband and Wife, Paul S. Hollenbeck, Trustee, Alex C. Hayes, Jr., and Anna Hayes, Husband and wife, Appellants, v. A. L. JAMES and Carney James, Respondents.
    No. 52255.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 13, 1967.

      Harold S. Hutchison, Vienna, Claude T. Wood, Richland, for plaintiffs-appellants.
    Northern & Crow, Rolla, for defendants-respondents.
   DONNELLY, Judge.

This case involves title to real estate located in Maries County, Missouri. Appellants Moss commenced the action in the Circuit Court of Maries County, Missouri, by petition for injunctive relief and for damages for trespass. Respondents James counterclaimed asking the Court to quiet title in respondent A. L. James on the theory of adverse possession. The trial court, without a jury, found against appellants on their petition, and for respondent A. L. James on the counterclaim.

The area in dispute is located in the Southeast Quarter of Section 27, Township 39, Range 9, in Maries County, Missouri. It consists of a'narrow strip of land bounded on the north by a county road, on the south by Dry Creek, on the east by a low-water bridge, and on the west by the North and South Midline of Section 27. The county road runs east and west. Dry Creek flows in an eastwardly direction.

The basic cause of the controversy was a survey made in 1940 which erroneously placed the North and South Midline of Section 27 at the low-water bridge. The accurate location of the North and South Midline of Section 27 is a line approximately 1300 feet west of the low-water bridge.

The record title to the disputed area is in appellants. Respondents assert ownership by adverse possession. The record indicates a lack of express notice to appellants of an adverse assertion of ownership by respondents until the early part of September, 1963, and that respondents did not pay taxes on the land in dispute.

Appellant James Winfred Moss purchased his land in 1959. He testified that thereafter he exercised all the rights of ownership on the land in dispute, which included cutting wood from it and hauling gravel out of it, and that at no time did the respondents protest.

The evidence is conflicting and confusing as to what portion of the area in dispute was fenced by respondents for the statutory period. It is obvious that the whole area was not fenced. A fence extended from the west boundary line of the disputed area along the county road for some distance, then crossed the disputed area to the creek, and then extended on east to the low-water bridge.

Respondent A. L. James testified he received a deed from Christy Davis in 1940, and has been in possession of the land in dispute ever since. After he purchased the land he sold gravel from a location about thirty yards above the bridge. He pastured cattle south of the road and west of the bridge a good many years, how many he did not know, but he supposed it was more than ten years. He said he pastured the land “off and on” and he cut hay from the disputed area for a period which could be more than ten years. He was paid for gravel from the disputed area for the construction of Highway Y in 1961. The W.P. A. took gravel from the area for their roads. He cut four or five dead elm trees and some sycamore sprouts in the area and nobody objected. In 1943 gravel was taken from the disputed area to build a bridge. Charley Finn was the overseer of the bridge and he took the gravel to build the bridge and obtained permission from James. The Ajax Pipeline “sprung a leak” and spilled some oil in 1950 which killed some timber in the disputed area. Ajax made a settlement with James for the damage and paid him $500.

Respondent Carney James testified that he is the son of respondent A. L. James and has lived on his father’s farm for about fifteen or twenty years. He testified that he and his father claimed everything south of the county road as far east as the low-water bridge because “it was where the surveyor said the true boundary line was.” When appellants’ counsel attempted to get Carney James to admit respondents were claiming the land south of the county road as far to the east as the low-water bridge because they thought that was the true boundary line, he answered by saying, “we claimed it because we had possession of it.” According to Carney James, he and his father had been in possession of the land in dispute for over twenty-five years. He testified that since 1940 he and his father had removed twenty-five or thirty thousand yards of gravel, had cut three or four cords of wood, and had changed the channel of Dry Creek, all in the area between the county road and Dry Creek and west of the low-water bridge. He further testified that he had rented the area from his father starting in 1945, had pastured his cattle in the area, had cut hay from it, and that in 1950, when a pipeline broke and the oil caught on fire, he and his father were paid $500 for the damage done to the area between the creek and the road and west of the bridge.

The decree of the trial court reads in part as follows: “[T]he Court * * * being fully advised of and concerning the premises on this 17th day of May, 1965, finds the issues herein joined against the plaintiffs on Count I and Count II of plaintiffs’ petition and for the defendants, A. L. James and Carney James, on their counterclaim ; and finds, adjudges and decrees that defendant A. L. James is vested with the fee simple title to the real estate hereinafter described having established title by adverse possession under Section 516.010 of the Statutes of Missouri, to wit:

“That part of the Southeast Quarter (SEj4) of Section 27, Township 39 North, Range 9 West in Maries County, Missouri bounded on the North by County Road, on the South by Dry Creek, on the East by a low-water bridge and on the West by the North and South midline of said Section 27.

“And the Court further finds, adjudges and decrees that plaintiffs have no right, claim or interest in said estate or title whatsoever, either legal or equitable in or to said real estate.”

We determine whether the trial court was warranted under the evidence in establishing title by adverse possession in respondent A. L. James. “There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be hostile, and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and, fifth, it must be continuous.” Swope et al. v. Ward et al., 185 Mo. 316, 324, 84 S.W. 895, 896. “Whenever any of these elements is lacking, no title by adverse possession can ripen.” Eaton v. Curtis, 319 Mo. 660, 4 S.W.2d 819. The burden of proof as to each of the five elements is on the persons claiming title through adverse possession. State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174.

Appellants first contend the record demonstrates that the claim of respondents was not hostile and adverse because respondents were under a “mistaken and erroneous belief as to the location of the north south mid-section line of Section 27,” and, therefore, that respondents intended to claim only to the true east boundary line of the disputed area, which the trial court found to be 1300 feet west of where respondents first thought it to be. Appellants cite Bell v. Barrett, Mo.Sup., 76 S.W.2d 394, in support of their contention. The Bell case does not assist appellants. In State ex rel. Edie v. Shain, supra, 348 Mo. 119, 124, 152 S.W.2d 174, 177, appears language appropriate here, as follows: “It is true that in the case of Bell v. Barrett, * * * we held that there was insufficient evidence in that record to sustain a finding of adverse possession, but the facts were wholly different from, those in the case at bar. * * * [I]n the Bell case * * * the evidence was clear that the person claiming adverse possession had occupied the land in question, knowing that there was a dispute in title and intending to make the final boundary line the one which would ultimately be determined by a correct survey. His occupancy was, therefore, provisional and contingent. There is nothing in the testimony in the case at bar from which such a mental attitude on the part of defendants or their grantor can be inferred.”

Both respondents made statements in the record that they intended to claim all of the land in dispute regardless of the true location of the boundary line. The Bell case recognizes that under such evidence the trial court could properly determine . the matter either way.

Appellants further contend that respondents wholly failed to prove “possession” for ten consecutive years so as to sustain a finding of adverse possession. In Cashion v. Meredith, 333 Mo. 970, 64 S.W.2d 670, 672, we quoted from the early case of Draper v. Shoot, 25 Mo. 197, 201, as follows: “ 'It is no easy matter to say what is an adverse possession. It is a question compounded of law and fact, and every case in which it is involved must be determined by its own circumstances. What is adverse possession is one thing in a populous county, another in a sparsely settled one, and still a different thing in a town or village. To constitute an adverse possession there need not be a fence, building, or other improvement made; and it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by the statute. Much depends upon the nature [and situation] of the property, and the uses to which it can be applied, or to which the claimant may choose to apply it.’ ”

We note also the case of Herbst v. Merrifield et al., 133 Mo. 267, 270, 271, 34 S.W. 571, 572, where we said: “The occasional cutting of firewood, or the taking of rock from this land, by defendant Merri-field and others by his permission, after the manner indicated by the testimony in the case, could not have been considered other than as a temporary trespass, in the absence of an express showing to the contrary, even- if it were conceded or had proof been made that plaintiff’s grantors knew of the acts, and made no complaint (which, however, are not the facts of this case). Possession, to constitute a disseisin against the owner of the legal title, when not actual, must generally be so notorious by acts of assertion that it may be presumed to have been known to the rightful owner. It should be so open and notorious that, in passing by or over his lands, the owner could not reasonably be deceived. Acts of ownership by others than the holder of the legal title should not be held sufficient to constitute adverse possession, unless they were of such frequency and of such character as would at all times apprise the real owner that his seisin was interrupted, and that his title was endangered. Most dangerous results would flow from the permission by courts of titles by limitation to ripen in favor of those holding mere color of title, without actual occupancy, by acts of ownership so slight in and of themselves, not calculated to attract the attention of the real owner, or to indicate that his seisin (that follows his legal title) was interrupted. An occasional trespass, by way of cutting timbers or digging a few loads of rock, is not sufficient to amount to an adverse assertion of title against the true owner, in the absence of express notice to the owner of such assertion of ownership by the trespasser.”

However, additional facts exist here. Since 1940, respondents removed twenty-five or thirty thousand yards of gravel, they cut- a few cords of wood, they changed the channel of the creek, they pastured cattle in the area, they cut hay from the area, and they asserted ownership for the purpose of collecting compensation for damage done to the area. On this record, these acts of ownership were of such frequency and character as would at all times apprise appellants, and their predecessors, that their title was endangered.

This case was tried by the trial court without a jury. We review it “upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” S.Ct. Rule 73.01(d), V.A.M.R.

We are of the opinion that the trial court was fully warranted in entering its judgment, and it is, therefore, affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    CITY OF MONETT, BARRY COUNTY, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. William W. BUCHANAN and Mary Evelyn Buchanan, Defendants-Appellants.
    No. 51597.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 13, 1967.

      Almon H. Maus, Monnett, for plaintiff-respondent.
    Neale, Newman, Bradshaw, Freeman & Neale, Paul L. Bradshaw, Springfield, for appellants.
   BARRETT, Commissioner.

Started by the City of Monett as a suit to enjoin landowners, William and Mary Buchanan, from completing construction of a business building on six lots in a resi-dentially zoned district, the cause has come to involve, as to this specific property, the validity, both as to enactment and enforcement, of the city’s comprehensive zoning ordinance. The ordinance, finally adopted on August 8, 1961, placed the appellant-owners’ six lots in District A a single-family residence zone. When the ordinance was adopted, however, there was then on the lots a partially constructed business building, commenced about a year previously, intended as a shopping center to consist of three stores. But when this suit was instituted in August 1962 the building had not been completed and the city, claiming that in the circumstances the building was in violation of the ordinance, sought to enjoin its completion. The circuit court enjoined completion of the structure and the landowners have appealed claiming that the ordinance had not been legally adopted and that as to their property it was arbitrary and unreasonable, that its classification had no relation to public welfare, and that its enforcement infringes their rights to equal protection and due process under both the state and federal constitutions.

The general area involved here is south of the main business and residential sections of Monett. Highway 60 runs east and west across the edge of the city’s main business district and this area is south of Highway 60 and about one and one-quarter miles from the heart of the business district. North and south through the city and intersecting Highway 60 is Highway 37 and this area astride Highway 37 is south of the municipal golf course and a city park both of which are part of a larger area all zoned A residential. Unfortunately for those not intimately familiar with Monett, precise locations, dimensions and acreages are not fixed but roughly estimating after comparison to the Lautaret tract of fifty acres immediately to the south of the six lots and south of a larger area once owned by the Buchanans, the lots are in a tract once consisting of about sixty acres. The sixty-acre tract fronts the west side of Highway 37 but these six lots as well as six lots to the north are separated from the highway by a fifty-foot street known as Plaza Drive. Directly across the highway from the six lots there is a tract of about twenty acres fronting the highway (also once owned by the Bu-chanans) and astride the highway and south of the twenty acres thirty or forty acres now comprising a platted subdivision known as Glenview Heights.

Again precise acreages are not fixed hut in 1955 in the approximated sixty acres fronting Highway 37 the Buchanans acquired the north part, perhaps more than half of the tract, and subdivided it into a platted subdivision, Southern Heights Subdivision No. 1. Subsequently, 1958, they acquired another part of the acreage, perhaps all that remained of the parcel, and platted that into Southern Heights Subdivision No. 2. The six fifty-foot lots involved here are in the southeast corner of that subdivision, all separated from Highway 37 by Plaza Drive. In 1956 the Bu-chanans acquired “another piece of property,” the tract directly across Highway 37 estimated here at about twenty acres, which they platted as Southern Heights Subdivision No. 3. Almost all the lots in subdivisions 2 and 3 have been sold and the subdivisions have become one of the choice, exclusive residential areas of Monett, all single-family residences costing from $20,000 to $65,000. The lots not sold, including the six involved here and six to the north, all facing Plaza Drive, belong to the Buchanans. It does not appear just how subdivision 3 across the highway has developed except that in 1961 the Bu-chanans sold some part of the tract (unspecified as to size) fronting the east side of Highway 37 for $5000 and in 1962 a gasoline filling station was constructed on the site and sold for $10,000.

In this background as to the property involved here the City of Monett, pursuant to Chapter 89, RSMo 1959, V.A.M.S., and following a final report by a duly constituted zoning commission, adopted a comprehensive zoning ordinance. It is not necessary here to recount its provisions, it is sufficient to say that it is a conventional zoning ordinance and classified the Buchanan’s property including lots 1 to 6 in Southern Heights Subdivision No. 2 as A residential, single-family residence, saving of course any nonconforming use in existence when the ordinance was adopted on August 8, 1961.

The appellant-owners’ first point is that the city failed to follow certain “statutory procedural requirements” and that, therefore, the ordinance was not “validly enacted,” and, presumably, is void. This point has to do with these circumstances taken for the most part from a stipulation of facts entered into by the parties. On March 24, 1961, the zoning commission, pursuant to a notice officially published in the Monett Times, held a public hearing “on a proposed zoning ordinance and zoning map.” While the appellants say and it may have been the’ fact that the first map produced before the commission indicated that their property would be in a C local business district, the official map placed all property west of Highway 37, including their six lots, in an A single-family residential zone. The appellant Buchanan appeared at that commission meeting and protested the “proposed residential zoning.” On March 29, 1961, the commission again met and so amended the zoning map as to change the appellants’ six lots from zone A to zone C and thereupon reported the ordinance and the amended map to the city council. On April 28, 1961, pursuant to another official notice published in the Monett Times the city council “held a public hearing upon said proposed zoning ordinance and zoning map.” Mr. Buchanan attended that meeting but the map then zoned their lots as C local business. After April 28 the council held “several informal meetings and discussions” concerning the ordinance and map and on August 8, 1961, enacted the ordinance and “changed portions of defendants’ property from zone ‘C’ (as recommended by the Commission) to zone ‘A.’ ”

The appellants, conceding that the council meeting of April 28, 1961, attended by Buchanan, was held “pursuant to the required statutory notice,” contend that because no action was taken at that meeting, several informal meetings intervening, there was no other and further notice of the council meeting of August 8, 1961, when the ordinance was adopted placing lots 1 to 6 in zone A and therefore they say the ordinance is invalid. There was, however, in the Monett Times of July 28, 1961, “an article * * * to the effect that the Council would consider the ordinance in its changed form,” as the editor said, “as it will be passed in the near future by the Monett City Council.” Appellants say that this article which printed the full text of the ordinance did not come to their attention until four or five days after August 8, 1961. In short the appellants’ point is that a second or another officially published notice was a necessary prerequisite to a valid adoption of the ordinance by the council. Conceding that “no Missouri case has passed on the question” the appellants pose the problem in this language: “After notice has been given and a hearing has been held on a particular zoning proposal, is the City Council free to pass some other and different proposal several months later without any further notice; or is the Council limited to a consideration of the proposal concerning which notice was given.”

The appellants’ is one way of stating the problem but the weakness of the statement is that it does not present the issue in its context and is not of course all the points of view nor all facets of the question. There was official publication of two notices, one by the zoning commission for its meeting and another by the council for its first meeting and it is assumed for the purposes of this opinion that the statutes required publication of fifteen days’ noticé of the time and place of at least initial hearings before both the commission and council. RSMo 1959, §§ 89.050, 89.060 and 89.070, V.A.M.S. No one is complaining of the fact, certainly not the appellants since in the end the zoning commission made a recommendation favorable to them, but the first and only notice of the zoning commission’s meeting on March 24 was published on March 9. Mr. Buchanan attended that meeting but the commission did not take final action on that date, instead, and without further notice, the commission again met on March 29 and it was on that date that the commission changed the zoning of the appellants’ property from A to C.' As to the council, Mr. Buchanan attended its first meeting on April 28 and thereafter there were “several informal meetings,” and publication of the full text of the ordinance on July 28.

Despite appellants’ protestations and insistence on further official formalities these mere record recitals do not reveal all the meaningful facts as to public knowledge, not only of the meetings of both commission and council but the magnitude of the issue and the excitement if not passion engendered by the contending parties and forces. In the first place the Buchanans platted and developed these three subdivisions and Nos. 1 and 2 have become successful and exclusive residential areas and the six lots are an integral part of the second subdivision and to place them in a C zone it is necessary, in effect, to transfer them to the third subdivision and other subdivisions across Highway 37. In any event, on the one hand, in active support of C zoning there were the appellant-owners and developers and in opposition, openly or tacitly, there were the thirty-five or more purchasers of lots and builders of one-family homes. The mere record recital of official and informal meetings does not begin to indicate how the issue was bruited about, nor does the transcript reveal the earnestness of arguments advanced or the forces brought to bear on commission and council by the contestants. There are some clues, however, in the testimony of Mr. Buchanan on the one side and Mr. Rose, a realtor member of the city council and a lot-purchaser in Southern Heights Subdivision No. 1, on the other side.

One other somewhat collateral matter should be noted at this juncture, both the zoning commission and the council were not concerned alone with the appellants’ six lots or with the homeowners in the two subdivisions. The zoning commission and the council were concerned, as the statutes contemplate (RSMo 1959, Ch. 89, V.A. M.S.) with the difficult and serious problem of adopting a comprehensive zoning law for all of Monett. This fact is overlooked in some measure by the parties as indicated by their citation of cases. This is not to minimize the individual owner’s rights, here the Buchanans, but there is a difference in “rezoning,” “variance” (101 C.J.S. Zoning § 275, p. 1040) and the exercise of the power to zone and to enact a comprehensive zoning ordinance in the first instance. 101 C.J.S. Zoning § 11, p. 693. This phase of the problem could be pursued at length but it is sufficient to say, as assumed, that notice and hearing are necessary prerequisites to the valid enactment of a comprehensive zoning ordinance. City of Moline Acres v. Heidbreder, Mo., 367 S.W.2d 568; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63. And, it may be added, in the amendment of an existing ordinance, as in its original enactment, notice and hearing are necessary. Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; State ex rel. Sims v. Eckhardt, Mo., 322 S.W.2d 903. And in either amendment or initial inclusion so as to residentially zone an existing nonconforming use certain factors must be noted, certain formalities observed, and in the end the action must not in the particular facts be arbitrary and unreasonable. Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833; Glencoe Lime & Cement Co. v. City of St. Louis, 341 Mo. 689, 108 S.W.2d 143.

But the repetition of these general principles does not solve the problem presented here, in both adoption and amendment notice is required and “(t)he most perplexing problem in the area of applicability concerns measures noticed in one form and passed in another.” Annotation 96 A.L.R. 2d 449, 457. To go immediately to the crux of the problem, it may only be said that in all probability there are two views: “According to one view, where sufficient notice is given prior to the hearing, the municipal zoning body may make changes or amendments to the proposed regulation in the course of its passage without giving further notice, or without another public hearing; under other authority, a zoning ordinance may be void where substantial amendments are made after the public hearing on the proposed ordinance without any new hearing on the changes and amendments.” 101 C.J.S. Zoning § 11(b) p. 697. Of course, what constitutes a substantial change is in itself a vexing problem and may depend on one’s point of view and interest, as here. But in this area also each case must be viewed in its particular circumstances and “compliance may be excused where the contesting party suffered no prejudice or other harm as a result of the improper notice, or where, despite its alleged deficiencies, he was sufficiently informed to have attended the hearing or at least to have known that it was taking place. Some courts have further recognized that a litigant may waive or be estopped from asserting improper notice and others indicate that an inordinate delay in the attack which results in the vesting of third persons’ rights may be a relevant excusatory consideration.” 96 A.L.R.2d 1. c. 456; State ex rel. Luechtefeld v. Arnold, Mo.App., 149 S.W.2d 384.

Ultimately the appellants’ complaint here is that the council did not adopt the recommendation the zoning commission finally made, after having changed it, that their six lots be zoned C rather than A but, insofar as notice is involved, they “had no right to assume that the legislative body (the city council) entrusted with the sole power to enact a comprehensive zoning or rezoning ordinance in Baltimore County was bound to adopt the proposals or recommendations submitted by the Zoning Commissioner,” and it may be added, especially after the council has once heard the appellants and is fully informed as to the basic problem. Hewitt v. County Commissioners of Baltimore County, 220 Md. 48, 151 A.2d 144, 149; Ciaffone v. Community Shopping Corp., 195 Va. 41, 77 S.E.2d 817, 39 A.L.R.2d 757. While it involved a zoning order, 465 acres of land and 1200 homes, the case nearest in point on its physical facts as well as appearance of objectors and the sufficiency of notice is Ridgewood Land Company v. Simmons, 243 Miss. 236, 137 So.2d 532. The only complaint here is the lack of a second notice, a notice that the council would meet again or at another time before finally voting and enacting the ordinance. There is no claim that the council was bound in any and all events to finally dispose of the proposed ordinance at the duly called meeting on April 28 or that it had no authority to adjourn and meet from time to time. And there is no claim that the statutes in specific terms, §§ 89.030-89.070, require a second or further notice once the council gave a proper notice and conducted a hearing attended by objectors. And finally there is no suggestion “of improper motives on the part of the zoning authority” (the city council), a compelling factor in individual instances. 96 A.L.R.2d 1. c. 457. In conclusion upon this point, in the circumstances of this record it may not be said that the ordinance was not validly adopted solely because there was no officially published notice of another meeting of the city council at which the ordinance would be finally voted on and enacted. State ex rel. Better-Built Home & Mortgage Co. v. Davis, 302 Mo. 307, 259 S.W. 80; State ex rel. Luechtefeld v. Arnold, supra.

In their second point the appellants invoke the general rules governing the validity of zoning ordinances, including the ever present generality of each case on its particular facts, and contend that the zoning of these six lots for class A residential use only was arbitrary and unreasonable and therefore a denial of due process and equal protection under both state and federal constitutions. It is not necessary to elaborate on this point as with the notice, the matters noted there, however, have some relevance and bearing. The classification of areas, under the statutes, is “a legislative function, and the city legislative body has the right and duty ‘to determine the use classification to be given any particular area,’ ” (Downing v. City of Joplin, Mo., 312 S.W.2d 81, 83; Landau v. Levin, 358 Mo. 77, 213 S.W.2d 483) and it is not the function or prerogative of courts to substitute their opinions for those of the city unless manifestly or demonstrably arbitrary and unreasonable as in Huttig v. City of Richmond Heights, supra, and Glencoe Lime & Cement Co. v. City of St. Louis, 341 Mo. 689, 108 S.W.2d 143. And inasmuch as it is repeatedly cited, it may be said in passing that this case is not comparable to the “twelve blocks * * * extending east and west along East Seventh Street” in Joplin. • Downing v. City of Joplin, supra.

The mere fact that property across the highway or even in an adjoining area is zoned business is not conclusive, if the city’s action is “reasonably doubtful or even fairly debatable” a reviewing court on appeal may not substitute its judgment for that of the city (Landau v. Levin, supra) and classification is not unreasonable because of the lack of proximity and complaints of neighbors. Ryan v. City of Warrensburg, 342 Mo. 761, 117 S.W.2d 303; Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616. Here as in Flora Realty & Investment Company v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, and numerous other cases, although they did not involve original enactments, there was conflicting evidence or conflicting inferences as to five or more significant factors, some of more compelling force than others depending on particular circumstances. And here there was a conflict of testimony as to the highest and best use of the six lots, a conflict as to the amount of damages to the' owners if restricted to residential rather than business use, a conflict as to increase or decrease in traffic, noise and general comfort if devoted to one use or another, all culminating in the compelling fact, that commercial rather than residential zoning certainly as to Southern Heights Subdivisions 1 and 2 of which the six lots are a part, would “clearly interfere with the general zoning plan adopted for the benefit of the entire community,” and, it may be paraphrased, as undoubtedly contemplated by the appellants when they platted the subdivisions. The classification here not being demonstrably unreasonable or arbitrary, particularly in view of the conflict of testimony, there is no manifest denial of equal protection or due process. Landau v. Levin, supra; Deacon v. City of Ladue, supra; Ryan v. City of Warrensburg, supra, and Williams v. Village of Schiller Park, 9 Ill.2d 596, 138 N.E.2d 500.

The ordinance contained a provision, as of necessity all zoning ordinances must, exempting from its immediate operation existing nonconforming uses but upon discontinuance of that use a classification in conformity with the standards of the ordinance becomes effective: “The lawful use of land existing at the time of passage of this ordinance, although such use does not conform to the provisions hereof, may be continued but if such nonconforming use is discontinued, any future use of said premises shall be in conformity with the previous provisions of this ordinance.” In this connection another provision permitted completion of a structure commenced prior to the enactment of the ordinance and the restoration of a partially destroyed building. Insofar as material here the section provided that “Nothing herein contained shall require any change in the plans, construction or designated use of a building, the construction of which shall be commenced prior to the date of the passage of this ordinance, and the completion of which shall be affected (sic) within one year of the date of the passage of this ordinance.” The same section permits the restoration of a nonconforming building partly destroyed by fire or an act of God subsequent to the passage of the ordinance; “provided such building is not destroyed to the extent of more than seventy-five (75) percent of the reasonable valuation.”

While the parties have occasionally assumed the existence of a nonconforming use on the date the ordinance was passed, August 8, 1961, the actual fact was that on that date there was no finished, completed nonconforming building or existing nonconforming use. And the actual existence of a nonconforming use when the ordinance was passed is not the appellants’ theory here. The pleading and the proof is, Mr. Buchanan said in August 1960, that the appellants had “commenced construction of a building on said land, but thereafter wholly abandoned the same and caused no construction to be done on said premises for a period of several months until on or about the 2nd day of August 1962,” (within six days of one year) when they “caused construction on said building to be again commenced and that more than one year from the effective date of said ordinance has passed, but the construction of said building is not completed.” The fact was that on that date, August 8, 1961, the appellants had completed the “footings and foundation” of a commercial building but there was no finished structure. And this is the theory of the appellants’ case and defense to a violation of the ordinance, a structure “in the course of construction at the time of the enactment or effective date” of the zoning law. 58 Am.Jur. (Zoning) § 149, p. 1022. Also with specific reference to the ordinance, when construction was resumed in August 1962 the appellants had “completed the walls (concrete blocks) and got ready to put the steel decking on it” but admittedly “couldn’t complete a whole building” by August 8, 1962, although they said that the structure could have been completed within a year. So to recapitulate, work was originally started in August 1960 but from October 1960 to August 1, 1962, whatever the reasons or excuses, there was no work on the building in that period of time. The appellants say that after again starting in August 1962 the building could have been completed but here again Mr. Buchanan “thought he had a ten day period there before it (the ordinance) became effective.” In any event the building 50% complete, later looking at a photograph he said 95% complete, could not have been completed by August 8, 1962. In the meanwhile, about one year prior to the date of the trial (June 1, 1964) a windstorm blew some of the inner walls down and in February or March another windstorm blew down 65% of the back wall and otherwise damaged the partially built structure. The appellants say that when the windstorms struck they had spent approximately $7500 on the building, and by reason of both storms collected $5000 under a builder’s risk insurance policy.

In this briefly noted background the appellants’ third and final point is that they had a valid nonconforming use, a vested property right (State ex rel. Capps v. Bruns, Mo.App., 353 S.W.2d 829) which they had not abandoned and which was not lost by their failure to complete the building within a year or by its subsequent partial destruction by windstorms.

And again, this phase of the whole problem could be pursued in its many facets, factual and legal, but detailed exploration is not necessary to a disposition of the appeal, on these as on all issues there was a conflict of testimony as well as of permissible inferences. Among other circumstances relied on as excusing failure to complete the building was, from August 8, 1961 to August 8, 1962, a lack of ability to secure financing, and, suspension of nonconforming use due to financial difficulties may negative an intention to abandon a nonconforming use. Annotation 18 A.L.R. 2d 725, 748, concerned in part with the right to resume a nonconforming use after a period of nonuse. And see Smith v. Howard, (Ky.) 407 S.W.2d 139. But it is not necessary to explore in depth the subject of abandonment of a nonconforming use or its loss due to a partial destruction — all with reference to the ordinance, it is sufficient here to say that one of the primary purposes of zoning is to strictly limit and eventually eliminate all nonconforming uses. Hoffmann v. Kinealy, Mo., 389 S.W.2d 745; Women’s Christian Association v. Brown, 354 Mo. 700, 190 S.W.2d 900; 2 Rathkopf, Law of Zoning, § 7, p. 61-14.

And ordinance conditions or prohibitions against reconstruction after 75% destruction or failure to complete a commenced construction within a year as destroying the nonconforming use are both valid, enforceable provisions. Beszedes v. Board of Com’rs of Arapahoe County, 116 Colo. 123, 178 P.2d 950; Palazzola v. City of Gulfport, 211 Miss. 737, 52 So.2d 611; Boward v. County of Cook, 27 Ill.2d 52, 187 N.E.2d 676; Annotation 87 A.L.R.2d 5, 106. The appellants projected a shopping center of three stores but they had not only not completed the building, no part of subdivisions 1 and 2 had ever in point of fact been used or devoted to any business or commercial purpose. And while Mr. Buchanan insisted that he intended to complete the structure and eventually put it to business use, he had found only one possible tenant at $90 a month and admittedly could not have completed the building within a year, “No one could,” he said. “An intention on the part of the owner of a property to put it some day to a nonconforming use or to resume such use after it has been to all intents and purposes completely discontinued is insufficient to preserve the owner’s right to a nonconforming use of the property.” 18 A.L.R.2d 1. c. 744. While a permit case there is an analogous and compelling lesson in the thoroughly considered case of Brown v. Gambrel, 358 Mo. 192, 213 S.W.2d 931, in which owners sought to change a nonconforming public stable into a dance hall or an “indoor amusement park.” There as here the proposed building was suitable only for business use while the land itself was adaptable to and appropriate for residential use. And there as here it could reasonably be said that “before the change was effected the economic advantage of the nonconforming use (public stable) had all but ‘faded out’ and the ‘economic’ use of the land was all but blended with the conforming (residential) use of the district or zone in which the property is situate.” As stated, the one-year completion provision is valid, the building was not and could not have been completed within the year and it was not a condition precedent to the validity and operative effect of the ordinance, as the appellants claim, that it must first be found as a fact that they had “abandoned their non-conforming use” — as those terms are defined generally. Annotation 87 A.L.R.2d 4, 8. But if technical abandonment is insisted upon there is a further applicable analogy in Brown v. Gambrel, 358 Mo. 1. c. 202, 213 S.W.2d 1. c. 937, the appellants “prolonged the non-conforming use-life of their building in violation of the imposed limitations on non-conforming uses and did violence to the purpose and intent of the zoning laws, depriving themselves of a legally authorized use of their property as a public dance hall. Thus by their own acts was the continuance or continuity of lawful non-conforming use of their property broken. There was no non-conforming use of appellants’ property lawfully existing January 1, 1947,” — here August 8, 1962.

For all the reasons indicated the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    Ralph A. NELSON, by Marjorie Nelson, Guardian, Respondent, v. Frankie GRICE and Frances Grice, Appellants.
    No. 51883.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 13, 1967.

      Neale, Newman, Bradshaw, Freeman & Neale, Flavius B. Freeman, Warren S. Stafford, Thom G. Field, Springfield, for respondent.
    Wear, Wear & Coffman, William A. Wear, Paul R. Coffman, Springfield, for defendants-appellants.
   STOCKARD, Commissioner.

Frankie Grice and Frances Grice (hereafter referred to as the “Grice Sisters” or “defendants”) are the owners of a tract of land approximately 330 feet square located on the northwest corner of Glenstone and Chestnut Street Trafficway in the City of Springfield. In August 1963, the Grice Sisters leased to Ralph A. Nelson part or all of this property (this being one of the disputed issues) to be used for the operation of a grocery store for an original term of thirty-one months ending on March 1, 1966. In the lease agreement the property was described as follows:

“A certain store building known as 723 Glenstone and located at the Northeast corner, consisting of approximately 4,354 square feet of floor space together with the area adjacent to the building which is also covered by this lease and which Lessee and his employees and customers may use for ingress and egress and for parking facilities (the legal description of which property shall be furnished by Lessors.)”

The rent for the “building and premises” was stated to be two percent “of the gross sales of Lessor [sic] resulting from the operation of a grocery and market at the leased premises.”

Mr. Nelson operated a grocery store in the building on the premises subsequent to August 1963, and was assisted by his son James who was then seventeen years of age. According to James, his father took care of the “entire lot” and kept the grass cut and picked up paper. The store building was located on the north side, and most of the building was in the northeast quarter of the lot. The eastern portion of the lot and most of the area south of the building was surfaced for use as a parking area. It appears that there was a driveway immediately west of a portion of the building. The area west of the driveway and the parking area was not surfaced but was covered with grass and trees. In the southwest quarter a surfaced driveway extended from Chestnut Street Trafficway northeastward to the parking area. In December of 1963 or January of 1964, some conversations took place between Mr. Nelson and the Grice sisters concerning remodeling or rebuilding, but because of the incapacity of Mr. Nelson at time of trial, subsequently mentioned, and the invoking by plaintiff of § 491.010 RSMo 1959, V.A.M.S., commonly" called the “dead man’s statute,” the record, as may be expected in such circumstances, is not as complete as it otherwise would be.

Mrs. Janie Price, who was employed by Mr. Nelson as a checker in the grocery store, testified that in the “winter months” the Grice Sisters came to the store, and Mr. Nelson “mentioned wanting it [the building] remodeled because of it being run down in places, and the Grice Sisters said they would rather build a new one than spend money on that one because it was in such bad shape.” During the conversation, according to Mrs. Price, Mr. Nelson “mentioned that the new store would be bigger” than the existing building, and the Grice Sisters, “agreed” that it would, and they also said that they would let Mr. Nelson draw up the plans for the building. Mrs. Price then testified that Mr. Nelson said: “Then, the rent will be the same as this one?” and that the Grice Sisters said “yes, it would be the same as that one, that he had a good business there already and that he would make more money in a larger store, with a bigger volume.” She further testified that Mr. Nelson said “that he would like that [to be put] into a contract before he would move into a new store,” and the Grice Sisters said “it would have to be a new contract because it would be a different building,” and they told him “not to worry about it, they would straighten it out later.” Mr. Nelson expressed some concern about his financial ability to stock the larger store, and the Grice Sisters told him that they were “sure he could get the money somewhere, or they would help him.”

Work was started on the construction of a new building on April 16, 1964, and the building was completed and ready for occupancy on July 1, 1964. This new building was located in the southwest quarter of the lot owned by the Grice Sisters, and was on that portion which previously had been covered with grass and trees and which had not been used for parking. During the construction Mr. Nelson conferred with the contractor and made suggestions concerning the new building. The contractor testified that the Grice Sisters told him that the new building was to be for the use of Mr. Nelson, and he heard them say “the more he makes the more we make.” At the trial it was stipulated that the construction of this building was commenced on the authority of the Grice Sisters and that it was contemplated that it would be for the use of Mr. Nelson to operate a grocery store.

In the spring of 1964, after the construction of the building was “pretty well along,” according to Mrs. Price, the Grice Sisters went to Mr. Nelson at his store and handed him a paper. After he read it, Mrs. Price heard him say, “five hundred dollars,” and then say to the Grice Sisters, “You told me I could have this [the new building] the same as this building.” Mrs. Price testified that “they,” meaning the Grice Sisters, “agreed, and said yes, but the new store would be a bigger store than that one.” Mrs. Price testified that at a later time, but prior to June 1964, the Grice Sisters again went to Mr. Nelson at his store and handed him another piece of paper. After Mr. Nelson read it he said: “You come in here — you tell me I can have it the same as this one, then you come in here with five and now six hundred; I told you I couldn’t pay five, I know I can’t pay this.” According to Mrs. Price the Grice Sisters did not say anything in reply, “they were standing there, smiling.”

Mr. Glen Price, branch manager of the Associated Wholesale Grocers, arranged for a conference on May, 25, 1964 between the Grice Sisters, Mr. Nelson, Mr. Harry Rish-worth, the assistant branch manager of Associated Wholesale Grocers, and himself. The purpose of the conference was to attempt to work out an agreement between Mr. Nelson and the Grice Sisters concerning the rental of the new building. At this conference Mr. Nelson insisted that the agreement between him and the Grice Sisters was that he was to have use of the new building on the same terms as the agreement for the old building, that is, two percent of the gross sales with no minimum, and according to Mr. Price, the Grice Sisters did not deny this. The Grice Sisters said that the reason they wanted to build a new building was because the old building had been condemned and that it would be torn down. Frankie Grice, the only one of the sisters who testified, denied that they had said at any time the old store building had been condemned, and in fact, the building had not been condemned. A proposed new lease agreement was presented by the Grice Sisters. It was on a printed form and proposed a lease from the Grice Sisters to Mr. Nelson for a term of ten years of “8200 Sq. Ft. of building at the Southwest corner of 723 N. Glenstone with acces [sic] to all parking. Minimum rent of $800.00 per month and 2% of gloss [sic] over $40,000 per month.” There was also a provision that the lessee should “operate seven day a week with a minimum of ten hours.” This is the first evidence of a demand by the Grice Sisters of a minimum rent of $800 per month or that the term be increased. During this conference Mr. Price “suggested several different proposals,” none of which was acceptable. The Grice Sisters stated, according to Mr. Price, that they could not rent the new building on the “basis of the old building” because the cost was greater than they had anticipated, and they were financing the building and their banker had told them that they had to have a minimum rent of six hundred dollars a month. No agreement was reached at this conference.

On June 21, 1964, the attorney for Mr. Nelson, wrote the Grice Sisters that the terms for the lease for the new building proposed by them were not acceptable, that “all of us should get together to try to agree on a lease before you proceed further” with the construction of the new building, and that “if a new lease cannot be mutually agreed upon that is satisfactory to both parties, Mr. Nelson, of course, will expect to keep possession of the premises under the existing lease * * After the new building was completed, at the direction of the Grice Sisters the contractor constructed an addition to the new building ninety feet in length consisting of two rental business locations.

On June 22, 1964, Mr. Nelson suffered what was referred to at times in the record as a heart attack, but which the treating doctor defined as a “myocardial ischemia or angina pectoris,” and he was absent from the store until the first part of September. On September 16 he had what the doctor referred to as a second “episode” which he diagnosed as “acute anxiety neurosis and hypertension of labile nature,” and was again hospitalized. On October 28, he had a “new complaint,” and the doctor “assumed” that on October 30, he “passed a kidney stone.” While Mr. Nelson was absent from work his son managed the store. In October the Grice Sisters opened their own grocery store in the new building in competition with the store of Mr. Nelson, and were still operating it at time of trial. On November 16, 1964, Mr. Nelson attempted suicide by shooting himself, and the injuries he inflicted resulted in total mental and physical disability.

Mr. Nelson filed suit against the Grice Sisters on October 23, 1964. After the attempted suicide, the petition was amended. Although it was in one count only and was labeled “First Amended Petition for Declaratory Judgment,” in addition to a request for a declaration of the rights and interests of the parties in the lease, according to the prayer plaintiff sought to reform the lease agreement to include the entire lot belonging to the Grice Sisters, and to obtain actual and punitive damages for trespass, loss of earnings, and for mental anguish and emotional disturbance which caused the “heart attacks” and the attempt to commit suicide. Trial was had before the court, a jury being expressly waived as to the jury issues. The trial court found that (1) the Grice Sisters had leased to Mr. Nelson “a certain store building referred to in the evidence as 723 North Glenstone and the entire tract of land owned by defendants at the Northwest corner of Glenstone Avenue and Chestnut Street Trafficway;” (2) the Grice Sisters “wrongfully failed to furnish the legal description * * * to said property * * (3) Mr. Nelson was “at all times after the execution of said written lease * * * entitled to possession of said real estate and the improvements located thereon for the term of thirty-one (31) months * * * with an option for two (2) additional terms of five (5) years each, upon the terms and conditions provided for in said written lease agreement;” (4) Mr. Nelson performed all the covenants required to be performed on his part; (5) “the defendants unlawfully, wantonly and maliciously (a) trespassed upon the premises covered by the lease, (b) breached their agreement with plaintiff, (c) took possession of a portion of the land included in said lease, and (d) constructed a new grocery and other buildings upon said land, and thereafter the defendants unlawfully, wantonly and maliciously opened and continued to operate a grocery and super market upon said premises, causing loss of business and damage to plaintiff;” and (6) the defendants “unlawfully, wantonly and maliciously continued to harass and interfere with plaintiff’s business and plaintiff’s use and enjoyment of the leased premises.” Two additional findings pertained to the claim for damages for mental anguish and emotional disturbance.

The trial court entered judgment reforming the lease agreement between Mr. Nelson and the Grice Sisters by inserting therein the description of the entire lot owned by the Grice Sisters as the property covered by the lease. We conclude that this was error. The property described in the lease was “a certain store building * * * together with the area adjacent to the building * * The building is identified as “being known as 723 Glenstone and located at the northeast corner [of the lot], consisting of approximately 4,354 square feet of floor space.” The “area adjacent to the building” is defined as that area “which Lessee and his employees and customers may use for ingress and egress and for parking facilities (the legal description of which property shall be furnished by Lessors).” It thus appears that two items of property are described as being covered by the lease: (1) the building, which is adequately described to be identified, and (2) the “area adjacent to the building.” The legal description that was to be furnished was not the description of the entire lot as the trial court held, but was of the “area adjacent to the building,” which the “lessee and his employees and customers” were to use for ingress and egress and for parking facilities. As far as shown by the record, the lessee never requested that legal description, and apparently it was never furnished. However, the property referred to as “adjacent to the building” which may be used for “ingress and egress and for parking facilities” can be otherwise identified, and the failure to furnish the description cannot constitute a basis for the cpurts to rewrite the lease to include portions of the lot obviously not intended. The language of the lease clearly indicates that less than the entire lot was intended to be covered, and the evidence establishes the limits of what was intended. There were four places of ingress and egress, a driveway immediately to the west of a portion of the building, and a hard surfaced area designed and used for parking and covering a substantial portion of the lot. There was no evidence that the other areas, not surfaced, were essential to or were used for ingress and egress or for parking. Neither is it shown that the other areas were essential to the primary purpose for which the lease was entered into, that is, for the operation of a grocery store. Also, if it had been intended that the entire lot was to have been covered by the lease to Mr. Nelson, no “legal description” would have been needed. Instead, some simple phrase would have been all that was necessary such as “all of Lessors’ lot at the Northwest corner of Glenstone and Chestnut Street Trafficway.”

Prior to the execution of the lease between Mr. Nelson and the Grice Sisters, the property was leased to Charles Mackey for the operation of a grocery store. He sold the business to Mr. Nelson, and according to Mr. Mackey, a witness for plaintiff, his lease was terminated by agreement, and the Grice Sisters told him to get the attorney for plaintiff to prepare another lease “just like the one” he had. The description of the property in the lease to Mr. Mackey was “4354 Sq. Ft. of building at Northeast corner of 723 N. Glenstone with access to all parking.” That description clearly did not include the areas of the lot not covered by the building or used for parking and for avenues of ingress and egress. Another interesting factor concerning the lease to Mr. Mackey, in that it clearly demonstrates that the entire lot was not intended to be covered by that lease agreement (and as noted, the lease agreement to Mr. Nelson was to be “just like” it), was that located on the lot and “attached to the grocery store” building at the rear was an apartment building which was used by Mr. Mackey, but for its use he paid $50 a month to the Grice Sisters in addition to the rent provided for in the lease.

When we consider the language used in the lease agreement, and the purpose for and the background of its execution, we conclude that the property covered was not the entire lot as found by the trial court, but was limited to the store building and areas incident to the operation of a grocery business, and the adjacent area adapted to and used for ingress and egress and parking facilities.

The trial court also entered judgment in favor of plaintiff in the amount of $50,000 for (1) “unlawful, wanton and malicious trespass,” (2) for defendants denying plaintiff “the use of said leased premises,” and (3) for the loss of business and earnings from his grocery business directly resulting from the opening and continued operation by defendants of the new grocery store “on the premises which had been, and then were, lawfully leased to the plaintiff.” Judgment for an additional amount of $50,000 as punitive damages was entered “by reason of defendants unlawful, wanton and malicious trespass and defendants unlawful, wanton and malicious breach of said lease agreement.” This judgment was based on the previously mentioned findings by the trial court that the lease agreement covered “the entire tract of land owned by the defendants,” that defendants trespassed “upon the premises covered by the lease,” and that they took possession of “a portion of the land included in said lease” and constructed a “new grocery and other buildings upon said land.” Neither the judgment for actual nor for punitive damages can be permitted to stand.

The new building was built on that area of the lot which was not adapted to or used for ingress and egress or for parking facilities, an area which we have concluded was not included in the property leased to Mr. Nelson. Any entry by the Grice Sisters upon land not leased to Mr. Nelson could not constitute a trespass by them as to his possessory interests.

Assuming however, but contrary to what we have previously held, that Mr. Nelson, by reason of the lease agreement, had some possessory interest in that part of the lot upon which the Grice Sisters constructed the new store building, no trespass occurred because the entry and the construction of the building was done with the express consent of Mr. Nelson. In fact, our examination of the record as it now stands indicates to us that the Grice Sisters entered onto the land and constructed the new store building pursuant to an oral agreement with Mr. Nelson whereby they would construct the new building and lease it to him at the same rate of rent, and he in turn would surrender his lease on the old building so it could be torn down, and he would operate his grocery store in the new building. Under these circumstances the entry onto the land by the Grice Sisters and the construction of the building could in no event constitute a trespass imposing civil liability. Griesenauer v. Emsco Corporation, Mo.App., 399 S.W.2d 147; 87 C.J.S. Trespass § 49. “Where defendant’s authority or license [to enter the land] was from plaintiff, an abuse of it does not make one a trespasser ab initio. Thus, one who enters realty under an agreement or license does not become a trespasser ab initio by failure to perform the agreement according to its terms, or by exceeding the terms of the license, or by failing to perform an act incident thereto, or by wrongful acts outside the agreement.” 87 C.J.S. Trespass § 16. See also 52 Am.Jur. Trespass § 20. The evidence also indicates that after the Grice Sisters constructed the building they violated their agreement by refusing to permit him to use it for the operation of his grocery store therein at the same rate of rent as that provided for the old building, but if so, that is a matter of breach of contract which is not pleaded and which does not form the basis of the- judgment of the trial court. It also appears, but this is not clearly established, that after the Grice Sisters opened a grocery store in the new building there was no means of ingress and egress to and from it by customers except over the area leased to Mr. Nelson, and perhaps an interference with his rights under the lease agreement resulted. The judgment which was entered, however, was not based on this, but on trespass in taking possession of and using the land where the new store building was constructed. We conclude and hold that the judgment for $50,000 actual and $50,000 punitive damages for trespass must be reversed.

We turn now to a consideration of the award by the trial court in the amount of $200,000 for, as stated in the judgment, “actual damages for the mental anguish directly resulting from the unlawful, wanton and malicious trespass which directly caused the heart attacks and attempted suicide * * * and for the expenses and loss of earnings directly resulting therefrom, and for the total and permanent mental and physical disability which * * * resulted from said suicide.”

It is clear that this judgment for damages for mental anguish was based on the findings by the trial court that the Grice Sisters trespassed on property leased to Mr. Nelson when they constructed the new building and operated therein a grocery store, and that the mental anguish, and its effects, resulted from that trespass. However, it is interesting to note that the only testimony of causation was the expert testimony of Dr. David Hall, the treating doctor, who expressed an opinion based on a hypothetical question, and in that question the conclusion of a trespass or the facts contended to constitute a trespass were not mentioned. Instead the doctor was asked to assume a breach of an agreement by the Grice Sisters to build a new store for Mr. Nelson and to rent it to him at two percent of the gross sales, and to assume “these business problems caused by the defendants.” Also, while the doctor testified that in his opinion “it [referring to the “business problems”] certainly caused his attacks,” he also said, “I don’t know why he committed suicide.” However he later said that he had an opinion as to whether “this caused him to attempt to commit suicide,” and the inference is that the doctor thought the “business problems” was a contributing cause.

In his brief plaintiff argues that the Grice Sisters “acted with wantonness, maliciousness and fraud, throughout their entire course of conduct by: (1) harassing respondent with increasing demands for new and unconscionable rental rates, (2) constructing other buildings on respondent’s premises, (3) trespassing in respondent’s office and looking through respondent’s papers, (4) interfering with the compressors in order to cause loss of merchandise, (5) driving their vehicle into the vehicle of respondent’s young son, (6) threatening to take over and ‘run’ respondent’s business, (7) blocking driveways to respondent’s business with their motor vehicles, (8) refusing to furnish the legal description of the premises, (9) refusing to cease construction of the buildings, and (10) operating a super market in competition with respondent on the premises leased to respondent.” Since this is a court tried case, and in view of the scope of our review, we shall briefly discuss these matters.

As previously noted we have concluded that the new buildings were not constructed on land leased to Mr. Nelson, but the record does indicate a breach of an oral agreement by the Grice Sisters. As to item (1), assuming the breach of agreement, the evidence does not establish that the rent proposed by the Grice Sisters was “unconscionable.” Items (2), (9) and (10) are based in part upon the erroneous contention that the new building was constructed on land leased to Mr. Nelson. As to items (4), (5) and (7), assuming they are supported in the evidence, the incidents all occurred after the attempted suicide and could not have been a proximate contributing cause of the mental anguish and the claimed results. Items (3) and (6) refer to an incident between the Grice Sisters and Mr. Nelson’s son which occurred after the first “attack,” and there is no evidence whatever that Mr. Nelson ever knew of the incident. As to item (8), there is no evidence that a request for the description was ever made by or on behalf of Mr. Nelson.

We see no occasion to review at length the law concerning the right to recover damages for mental anguish and emotional distress and for the physical effects resulting therefrom. Cases are collected in the annotation at 28 A.L.R.2d 1070. In Pretsky v. Southwestern Bell Telephone Company, Mo., 396 S.W.2d 566, this court thoroughly examined the applicable rules, and in discussing the right to recover damages for emotional distress and for bodily harm resulting therefrom, quoted from the Restatement of the Law of Torts, Second, 1965, Vol. I, § 46, which we shall again set out.

“§ 46. Outrageous Conduct Causing Severe Emotional Distress
“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to the other results from it, for such bodily harm.
“d. Extreme and outrageous conduct.
The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous !’ ”

Aside from the fact that we have serious doubt concerning the sufficiency of the evidence to establish causation, we shall sum up our conclusions concerning the award of $200,000 for “mental anguish” as follows: (1) The trial court specifically based this award upon the theory that the construction of the new buildings and operation of the grocery store was done on land leased to Mr. Nelson and that those acts constituted willful and wanton trespasses which caused “mental anguish,” but we have concluded that under the factual situation of this case those acts did not constitute a trespass. (2) Other than the contended acts of trespass as above set out, the evidence does not establish such “extreme and outrageous” conduct from which it may be found that the Grice Sisters should respond in damages for emotional distress or mental anguish, and the alleged results therefrom. For these reasons the judgment is reversed.

The remaining portion of the judgment which we must consider is that part by which the Grice Sisters are “enjoined from operating a grocery or super market, or renting or leasing the above described leased premises or any portion thereof, to any other party for any purpose during the term of said lease or during any extension thereof by reason of the exercise by plaintiff of his option rights under said lease.” The phrase, “above described leased premises” refers to the entire lot owned by the Grice Sisters.

For the reasons previously set out, the injunction as worded cannot be permitted to stand. However, we do not conclude that plaintiff necessarily was not entitled to any relief whatever. He did have a valid lease on a substantial portion of the lot, and apparently, although the evidence does not clearly establish this, the Grice Sisters used the avenues of ingress and egress and the parking lot which they had leased to Mr. Nelson as an adjunct to their grocery store so they could operate it in competition with Mr. Nelson. But relief in this respect was not requested, and was not granted, and the record as it now exists does not justify an attempt on our part to modify the injunction. Also, the original term of the lease has now expired, and we do not know whether Mr. Nelson exercised his option to extend the lease, if there was in fact an enforceable option in view of the peculiar language in the lease agreement. Therefore, the entitlement to other injunc-tive relief, if any, must depend upon subsequent developments concerning pleadings and proof.

Civil Rule 83.13, V.A.M.R., provides for the outright reversal of an improper judgment “unless justice requires otherwise.” “ ‘The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.’ ” East v. McMenamy, Mo., 266 S.W.2d 728, 732; Yarrington v. Lininger, Mo., 327 S.W.2d 104, 111. We note that the Grice Sisters filed a counterclaim which was dismissed by the trial court, and on this appeal that action is not challenged. Ordinarily, that portion of the judgment would be affirmed. However, in the counterclaim the Grice Sisters pleaded the existence of an oral agreement but with different terms than that indicated by plaintiff’s evidence. In the exercise of judicial discretion, we conclude that the entire judgment should be reversed.

The judgment is reversed and the cause remanded.

BARRETT, C., not sitting.

PRITCHARD, C., concurs.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Wayne McDARIS, Defendant-Appellant.
    No. 51754.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, James A. Pudlowski, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Arch M. Skelton, Skelton & Bonacker, Springfield, for appellant.
   BARRETT, Commissioner.

Jerry McDaris, Larry Miller and Tommy Slagle were jointly charged with burglary in the second degree, RSMo 1959, § 560.070, V.A.M.S. Specifically and in the language of the statute the information charged that on April 3, 1965, the three of them did “unlawfully, willfully, feloni-ously and burglariously break into and enter, by forcing open the north outside door of said building, the store of the M.F.A. Cooperative Association of Fair Play, Missouri, a corporation in Fair Play, Missouri, the same being a building in which divers money, goods, wares, merchandise and other valuable things were then and there kept for sale and deposited * * Upon a severance the appellant was separately tried but instead of submitting his guilt or innocence of the completed offense of burglary the state’s principal instruction submitted that he did, against the will of the owner “attempt to break and enter into the M.F.A. Co-operative Association of Fair Play, Missouri, a corporation, by then and there attempting to pry open the north outside door of said building * * * and if you further find that the defendant did any overt act toward the commission of buglary and that he failed in the perpetration of said offense or was prevented or intercepted in executing the same, then the jury will find the defendant guilty of an attempt to commit the offense of burglary” and assess his punishment for the attempt rather than for burglary. (Emphasis supplied.) Compare RSMo 1959, § 560.095 and § 556.150, V.A.M.S. The jury returned a verdict finding the appellant “guilty as charged in the information” and fixed his punishment at three years’ imprisonment. Among other grounds in his motion for a new trial and here the appellant has two detailed assignments of error directed to Instruction 5 and his conviction of an attempt when the state’s theory of the case and all the proof was that if the appellant was guilty at all he was guilty of the completed offense of burglary in the second degree. The basis of his assignment is § 556.160, RSMo 1959, V.A.M.S.: “No person shall be convicted of an assault with an intent to commit a crime, or of any attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.” In response the state relies solely upon §§ 556.220 and 556.230, RSMo 1959, V.A.M.S., which permit the finding of guilt “of any degree of such offense inferior to that charged * * * or of an attempt to commit such offense, or any degree thereof” or the latter which permits a finding of guilt of “a less offense * * * the commission of which is necessarily included in that charged against him.”

Briefly and only insofar as they may bear on the precise problem these were the incontrovertible facts established by the state, the defendant offered no evidence. At closing time on Saturday, April 3, 1965, the manager of the Fair Play M.F.A. locked all the doors and as he did intermittently tested the burglar alarm. Between 2 and 3 o’clock in the morning he was informed that the building had been broken into. When he met a deputy sheriff there the first thing he discovered was that the burglar alarm had been “tripped” and was run down and the west or middle door “was cracked” but not open enough for a man to go through. But when he went to the back door, an overhead door, it had been forced open and was off the track. The sheriff said, “The door had been pushed open, and out of the channel.” The manager said that there were “fresh” pry marks “on the outside edge of the door.” Two feed carts that had been upright in the evening were found overturned. An assistant manager found one glove and a tire tool just inside the door on a feed bag and these articles did not belong to anyone connected with the exchange. Miller, separated from McDaris and Slagle and having reported that two soldiers had kicked him out of his automobile and stolen it, described his keys to the sheriff: “He said that they were on a chain, and there would be two keys, a class ring and a nail clipper on them.” A deputy sheriff found these keys “Right on the inside of the door that was busted open, or pried open.” When Miller and Slagle, driving appellant’s automobile, were stopped by deputy sheriffs from Greene County the ignition had been wired around and Miller jerked the jump wire loose and threw it on the ground. The wire was preserved and it was a piece of the wire to the light on the license bracket from an M.F.A. truck parked in the building. Thus in these detailed circumstances unlike in State v. Pigques, Mo., 310 S.W.2d 942, there was an “entry” into the M.F.A. building and beyond question a completed burglary within the meaning of the statute (RSMo 1959, § 560.070, V.A.M.S.) and as charged in the information. State v. Smith, Mo., 357 S.W.2d 120. Here there was no interception or prevention (RSMo 1959, § 556.-150, V.A.M.S.), in short there is no evidence whatever of the specific offense of an attempt to commit burglary in the second degree. State v. Kiddoo, Mo., 354 S.W.2d 883; State v. Whitaker, Mo., 275 S.W.2d 322.

In view of the statutes relating to lower degrees of offenses (RSMo 1959, § 556.220, V.A.M.S.) and necessarily included offenses (RSMo 1959, § 556.230, V.A.M.S.), it has been argued on more than one occasion that § 556.160 (in force since 1855) serves no useful purpose but each time the court has said that there is “no reason why this court should nullify or ignore it.” State v. Lacey, 111 Mo. 513, 517, 20 S.W. 238, 239; State v. Bell, 194 Mo. 264, 267, 91 S.W. 898, 899. These cases and others have pointed out that there is no conflict in the three statutes and in a leading case, State v. Scott, 172 Mo. 536, 544, 72 S.W. 897, 900, it was further pointed out that § 556.160 “does not in any manner prevent the conviction of one, charged with murder in the first degree, of murder in the second degree, or of manslaughter in any degree which is supported by the evidence, or of grand larceny on an indictment for robbery; nor does it prevent a conviction of any completed offense on an indictment therefor, even though the indictment might have been for another and greater offense, and the evidence would have sustained such indictment * * And absent proof of the completed offense it may be added that these rules also apply to an attempt to commit burglary. State v. Whitaker, 275 S.W.2d 322.

But when both the charge and proof are of a consummated offense, as a charge and proof of a consummated rape or carnal knowledge, for over one hundred years it has been held to be reversible error to submit and convict of an attempt to ravish. State v. White, 35 Mo. 500; State v. Baker, Mo., 276 S.W.2d 131; State v. Lacey, supra; State v. Bell, supra; State v. Scott, supra. Also in arson and sodomy, upon proof of completed offenses it has been held error to submit by instruction an attempt to commit either offense. State v. McCaffery, 225 Mo. 617, 125 S.W. 468; State v. Clark, 221 Mo. 391, 120 S.W. 21. In the latter case, except for the differences in the substantive offenses, the instruction hypothesizing “attempt” and “prevented or intercepted” is almost identical with Instruction S-5 complained of here. The enforced corollary of this rule is that upon proof of a consummated offense, as in murder or arson, the defendant is not entitled to an instruction on an attempt. State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42; State v. Bobbitt, 242 Mo. 273, 146 S.W. 799.

It so happens that this appeal and State v. Pigques are the only burglary cases that have been confronted with these three statutes. And in the Pigques case both the charge and finding were of an attempted burglary while here the charge and proof were of second degree burglary, the submission was of attempted burglary and the verdict was “guilty as charged.” As noted, in the Pigques case it was held that “the evidence does not show the crime of burglary was fully perpetrated,” on the contrary it was held that the evidence “justified the submission and supported the conviction of defendant of an attempt to commit burglary. Sec. SS6.1S0, supra,” and thus the force and effect of § 556.160 was avoided. In that case the appellant contended that the evidence was not sufficient to support attempted burglary and, therefore, by force of § 556.160 he could only be convicted, if at all, of the completed offense. Noting the rape cases, particularly State v. Scott, the court said, however, “If that question is answered in the affirmative, then, under all the evidence, we must conclude that defendant was shown to have perpetrated the completed offense of burglary, and, in that event, under the provisions of the foregoing statute, he could not have been properly convicted of an attempt. That is to say, if in this case the only evidence of an attempt to commit burglary is that which shows the crime of burglary was fully perpetrated, the case falls within the provisions of Section 556.160, supra, and the trial court’s submission of the issue of defendant’s guilt of the crime of attempted burglary was erroneous.” (310 S.W.2d 1. c. 944-945). And so in this case the charge having been of burglary in the second degree, the only offense established by the proof, the submission having been of an attempt to commit burglary, of which there is no proof, and the verdict having been “guilty as charged,” the judgment is reversed and the cause remanded. State v. Clark, supra; State v. Lacey, supra; State v. McCaffery, supra, and State v. Baker, supra.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Virgle Lee JACKSON and William Calvin Worsham, Appellants.
    No. 51982.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Lawrence O. Willbrand, St. Louis, for appellants.
   FINCH, Judge.

Both defendants were convicted by a jury of burglary in the second degree. The trial court found that each had three prior felony convictions and sentenced each to a term of ten years’ imprisonment. Both have appealed.

In the early morning hours of January 6, 1965, police officers were dispatched to the Metal Goods Corporation building at 8800 Page Road in Overland, St. Louis County, as a result of the sounding of a burglar alarm. Some of the officers, with the aid of a spotlight, observed two persons emerge from a second-story window of the Metal Goods Corporation building onto the roof of a portion of the first story of that building. The two men were kept under observation until, at the direction of the police, they dropped to the ground and were placed under arrest. The two defendants were identified by the police officers as the men who they saw emerge from the second-story window and who were arrested at the scene.

The officers examined the building and found that the window from which the men emerged had a cracked glass, the lock was sprung and there was a pry mark on the window. A button, identified as a button which was missing from the coat of defendant Jackson, was found on the floor beneath the open window.

Inside the building, the door to the office of the company president had been forced. Drawers in the desk in that room had been pried open. On the third floor various tools, including a hammer, crowbar, small jimmy bar and broken screwdriver, as well as the safe handle, were found on the floor or on a cabinet beneath a wall safe, and there were scraps from the safe insulation on the floor.

Defendants assert only two questions on appeal. First, they claim that Instruction No. 2 was erroneous. It was as follows :

“The Court instructs the jury that the intent with which the act or acts of either of the defendants were done is one of the facts for you to determine from all the evidence in this case. This intent need not be proved by direct and positive testimony; in the absence of such testimony, it may be inferred by you from all the facts and circumstances in evidence having reference to and bearing upon the question of intent, if you believe such facts and circumstances have been proved during the trial of this case.”

This instruction, except for the addition of words in the first sentence to make it applicable to more than a single defendant, has been used and approved previously. See Raymond on Instructions, § 3715; State v. Copeman, 186 Mo. 108, 84 S.W. 942. The brief of defendants seems to concede the sufficiency of the instruction in its basic form where there is a single defendant, but asserts that it improperly permits the jury to infer intent of one defendant from acts of the other where there are plural defendants.

In the first place, no question is preserved on this appeal with respect to Instruction No. 2. At the trial defendants objected generally to the giving of Instructions 1 through 9, inclusive. No specific objection was made to Instruction No. 2. A motion for new trial was filed raising various issues but there was no reference of any kind to Instruction No. 2.

Defendants ask that we review this instruction under Rule 27.20(c), V.A.M.R. On occasion there is misunderstanding as to the scope of that rule. It must not be understood as providing a means of review of all alleged trial error which is not asserted and preserved pursuant to applicable rules. A rule which permitted that practice, if followed, would nullify such requirements completely. Rule 27.20(c) is available and will be applied, as it clearly states, only in cases in which a failure to consider the question would result in “manifest injustice or miscarriage of justice.”

The contention of defendants with respect to Instruction No. 2 is a technical one. There is nothing to indicate to us that a jury, considering that instruction along with the other instructions in the case, would have been misled. The defendants were caught red-handed leaving the burglarized building together. All the evidence before the jury related to both defendants. We perceive nothing to indicate that the giving of Instruction No. 2 could have resulted in a miscarriage of justice which should cause us to review or consider further the alleged claim of error therein.

Defendants’ other contention is that the State did not prove the corporate existence of Metal Goods Corporation as alleged in the information. Mr. King, the general credit manager for Metal Goods Corporation, testified that Metal Goods Corporation was a Missouri corporation which owned the building which was burglarized and the contents thereof. This was sufficient. The exact nature of the owner, whether corporate, individual or otherwise, is not material to establishment of guilt or innocence of the defendant. The evidence was sufficient to show burglary of the premises of another with intent to steal. State v. Sims, Mo., 395 S.W.2d 445 [4]; State v. Dowling, 360 Mo. 746, 230 S.W.2d 691 [2, 3].

We find no error in those parts of the record which we are required to examine under Rule 28.02, V.A.M.R.

The judgment is affirmed.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Dallas Ray TURNER, an Infant, by and through Ann Forrester, His Next Friend, Appellant, v. Bernard WHYMAN, Respondent.
    No. 51824.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Donald S. Hilleary, Clayton, A. Robert Belscher, St. Louis, for appellant.

      F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   PRITCHARD, Commissioner.

The issue is whether the plaintiff, a “not very big” boy of eight years, bore such relationship to defendant, owner of an apartment building, that the latter is liable in damages for injuries suffered by plaintiff from a fall from a fire escape ladder while engaged in helping Mr. Brown, defendant’s tenant, to “shoo” pigeons from the attic of the building.

On defendant’s motion, the trial court directed a verdict against plaintiff and entered judgment against him in his $40,000 action for personal injuries.

The apartment building at 1735 South 18th Street is an old residence converted into a six unit apartment which faces east on the west side of 18th Street. Defendant’s tenant, Brown, resided there and plaintiff would go there each day to stay with his grandmother until his mother picked him up in the late afternoon. On the south side of the building is a fire escape, with a window from Brown’s third-floor apartment leading thereon. The attic of the building is reached through a trap door in the third floor hallway, and there are two outside vent holes in the south side of the building. The crawl space in the attic was not very high — about three feet in the center and tapering off to a point where a man could not squeeze through.

Defendant had three employees, a carpenter and two others, who worked for him on properties. He had complaints about the pigeons perhaps a year or two prior, and one of his men then attempted to chase out the pigeons.

Giving rise to the incident in which plaintiff was injured was the accumulation of a large number of pigeons which nested in the attic. Brown complained to defendant about the condition of filth which existed. Defendant asked Brown if he had any method by which the latter could get the pigeons out of the attic. Brown told defendant that his teen-age son (age 17 or 18, weighing about 130 pounds) would go up there and get rid of the pigeons. Defendant asked Brown how much it would be worth and Brown said his son would want $5, to which defendant agreed: “That sounds very fair. When the job is finished, let me know and I will send you a check.” Further testimony from Brown was that he suggested to defendant that “I had a boy that might get them out.” Defendant said, “Well, what about this, I will give him a couple of dollars.” Brown said, “No, he wouldn’t do the job for two dollars. He might for five.” Upon being asked what boy he was speaking of, Brown answered: “In fact, I was talking about my time.” After Brown made the suggestion, defendant said he should go ahead and get it done, “When it is done, you call me up and I will come up and examine it and pay.” Brown’s son did not clean out the pigeons. He went up there (to the attic) and instead of cleaning them out, he fastened them all up by closing the opening (the vent) from which they were coming and going.

On a Sunday before the Tuesday when plaintiff fell, Brown told plaintiff and another boy that he was going to shoo the pigeons away and stop up the hole. Plaintiff and the boy helped him, but they did not get all of them — there were probably a half dozen pigeons left. Brown blocked up the hole to keep them from coming back in. Brown called defendant, but instead of coming up and inspecting the attic, he sent a check, received by Brown, he thought, on the day plaintiff was hurt. On Sunday, Brown and the two boys went to the third floor, put a ladder to the trap door through which the boys went and shooed the pigeons out of the vent holes. The boys were on their knees. Brown paid the boys a quarter apiece. On Tuesday, plaintiff went to his grandmother’s, changed clothes, and met the other boy, Haskins. They then met Brown who asked them if they wanted to help him shoo pigeons. Brown said, “today would be easier; we should go out on the fire escape and get them easier.” They went upstairs where plaintiff went out the window first, and then Donald (Haskins) came out and went up the ladder. Brown remained in the room close to the window. Plaintiff stepped over by the end of the rail on the fire escape. Donald stuck his hand in the vent and pulled out four, five or six pigeons, then got down, at which time Brown came out and went up the ladder. Plaintiff stepped back as Donald stepped into the window where he sat down, and plaintiff stood there a few minutes. Plaintiff started over (to the window) and fell from the fire escape, catching himself a couple of seconds on the railing. He hit his arm on the second-floor fire escape and he landed, unconscious, in the pit below.

The first of plaintiff’s somewhat intertwined alternative theories by which it is contended that the evidence was sufficient to make a submissible case is that defendant was negligent by inviting plaintiff to assist in defendant’s work and then directing plaintiff into a position of danger. He argues that defendant engaged Brown to correct a nuisance that had occurred in the low crawl space between the third floor and the roof of his building. It (the attic) was small for a grown man to do the job; the defendant knew that there would be others working on this job and that they would be smaller persons; that it might be Brown’s son, but he also knew that it might be someone else. He had no specific knowledge as to whether Brown’s son would be able to do the job, or whether he was too large for the work. These arguments are largely not supported by the evidence or any legitimate inference arising therefrom even treating both the evidence and any such inferences as might arise most favorable to plaintiff (as we must do). Defendant did engage Brown to correct the nuisance; the attic was small for a grown man to crawl in; he knew that the person who might do the work was Brown’s son, a teen-age boy. While he had no specific knowledge as to whether Brown’s son would be able to do the job or whether he was too large for the work, the only evidence is that he might be able to get the pigeons out. The difficulty with the arguments is that there is no evidence, or even an inference, that defendant had in mind employing young boys of tender years such as plaintiff. The only persons whom defendant could have had in mind to do the job under this evidence were Brown and his teen-age son. Those are the ones employed or to be employed by defendant to do the job. Nothing was mentioned with respect to plaintiff or any small persons like him, and there is nothing to indicate that defendant could foresee that Brown would go on his own to get a young boy. While it would be negligence for one to hire a very young person, nonappreciative of the dangers of heights, to climb out on the fire escape, there is no contact shown between defendant and plaintiff whereby defendant could be held liable for the plaintiff’s injuries. The act of engaging plaintiff and his friend, Donald, is that of Brown. Defendant agreed to pay Brown (and him only) if he would get the pigeons out of the attic. The here applicable rule is in Oatman v. St. Louis Southwestern Ry. Co., 304 Mo. 38, 263 S.W. 139, wherein many authorities are set forth in its support at S.W. pages 143 and 144, that where one working for another of his own volition, without the knowledge or consent of any one in authority, cannot thereby establish the relation of employer and employee, so as to base a claim for damages on the duty that an employer owes to an employee. The fact that the injured person engaged in the work at the request of an employee takes his case out of the rule, but if the employee is without authority to bind the employer to the arrangement, the assistant is no more than a volunteer. See also 56 C.J.S. Master and Servant, § 177, p. 864. There is no evidence here by which a jury could reasonably find, by legitimate inference, or otherwise, that defendant knew or should have known (from the necessities of the case, i. e., the small attic entrance and crawl space) that very young persons such as plaintiff would be used by Brown to clear out the pigeons. The trial court did not err in directing a verdict for defendant as to this theory.

Plaintiff’s second theory is that Brown was an employee of defendant acting within the scope of his employment at the time he invited plaintiff to join in this hazardous undertaking. Brown, however, was not employed to hire anyone other than his seventeen-year old son to do the job of shooing pigeons out of the attic. As stated, Brown had no authority from defendant to hire plaintiff and he could not have been acting within the scope of his employment at the time he did so. § 294.-040 RSMo 1959, V.A.M.S., prohibiting the employment of children under the age of sixteen years of age in enumerated occupations and in any other “occupation dangerous to the life, health or limb, or injurious to the health or morals of children under the age of sixteen,” is inapplicable for the same reason — no authority from defendant to Brown to hire young children.

For his third theory, plaintiff asks us to consider defendant negligent in failing to exercise reasonable care for plaintiff’s safety when he employed others to do work which he should have recognized as likely to create, during its progress, a peculiar unreasonable risk of physical harm to plaintiff unless special precautions were taken for his safety. We have partially considered this argument above in that, under this record, and all legitimate inferences arising therefrom, defendant did not have plaintiff (or others his age and size) in mind when he told Brown to go ahead with the job, using his own seventeen-year old son. The fact that there was a small opening to the attic, the crawl space therein was small and that the job might require (there was no evidence that it might or would) those engaged in it to go out on the fire escape, does not give a basis for foreseeability or anticipation that such a person so engaged would be plaintiff or one like him.

Plaintiff’s last theory is that the defendant was negligent in not making the premises safe for plaintiff, an invitee of defendant’s tenant, Brown. Nothing whatsoever is shown that would even remotely indicate that the fire escape was in a dangerous or defective condition, or that there was anything about it known to defendant which would charge him with a duty to repair or make safe. The photographs in evidence show nothing out of the ordinary about the fire escape. The trial court did not err in directing a verdict as to this theory of liability.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.