author: RENDLEN, Judge.

text:
    In re Marriage of J_ H_ M_, Petitioner-Appellant, and E_ C_ M_, Respondent.
    Nos. 37801 and 37762.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 19, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.

      Dowd & Oates, Francis M. Oates, St. Louis, for petitioner-appellant.
    Gunn & Gunn, Donald Gunn, Jr., St. Louis, for respondent.
   RENDLEN, Judge.

This appeal is from the custody award of three minor children and denial of appellant’s claim for maintenance incident to a judgment dissolving the parties’ marriage. We affirm.

Considering first appellant’s motion to strike respondent’s brief for alleged inadequacies of the statement of fact and points relied on, we have examined respondent’s brief and while it is less than model, we find it adequate and the motion is denied.

Appellant contends the custody award is erroneous because: (1) it does not serve the best interests of the children; (2) custody was awarded to the respondent-father as punishment for the appellant-mother’s conduct; (3) the father is not a fit custodian; (4) custody of the oldest child to respondent is not in her best interest because though respondent is the legal parent, he is not the natural father of the child; (5) the two oldest children stated their preference to live with the mother and minor children especially girls should normally be awarded to the custody of the mother; and (6) appellant’s adulterous relationships were not shown to have produced a harmful effect on the children.

In this nonjury case the judgment of the trial court will be sustained unless there is no substantial evidence to support it or is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976), and we set aside a decree as against the weight of the evidence only “with a firm belief that the decree . is wrong,” Murphy v. Carron, supra at 32[2]; “giving deference to the trial court’s findings and its ability to have judged the credibility of the witnesses,” L.H.Y. v. J.M.Y., 535 S.W.2d 304, 305-6[1] (Mo.App.1976).

The parties were married on September 19, 1962, and have three daughters, D_ A_ age 13, D_ L_ age 11, and D_ G_ age 6. They separated October 25, 1974, and three days later appellant filed this suit, rented a U-haul, “packed everything up” and took the children to New Lenox, Illinois, about forty-five miles south of Chicago. Shortly thereafter respondent moved for an order directing appellant to return the children, money and property, alleging appellant left the state with the minor children, stripped the home of furniture and approximately $5,000 cash.

On December 13 of that year, appellant was ordered to bring the three minor children “to the jurisdiction of Missouri” and return $2,500 cash to the joint control of the parties. Appellant, who had filed her motion for allowances pendente lite, was awarded the right to reside in the family home during the pendency of the action and was allowed to retain custody of the children subject to respondent’s “temporary custody of three children at reasonable times and alternating weekends from 6 p. m. Friday to 6 p. m. Sunday and during Christmas week from 4 p. m. Christmas Day to 4 p. m. New Years Day.”

Respondent next filed a motion for contempt charging appellant “willfully failed and refused” to return the children to Missouri, notwithstanding the fact respondent, complying with the court’s order had moved from the family home making it available to appellant. On March 14 the respondent filed a second motion for contempt, following appellant’s willful frustration of his rights of visitation and temporary custody. This motion was sustained April 4, 1975, directing appellant’s compliance with the temporary custodial order. At the conclusion of trial, judgment was entered awarding respondent custody of the children and the family home, providing a proper environment for the children. It is generally recognized a mother is deemed best suited to care for a child of tender years, Johnson v. Johnson, 526 S.W.2d 33, 37[7] (Mo.App.1975), and this is “not a presumption of law but a recognized fact of life based on human experience,” McCallister v. McCallister, 455 S.W.2d 31, 34[2] (Mo.App.1970). However, this attitude is not inflexible and courts are not reluctant to entrust custody to the father when the best interests of the children will be served thereby. Suddarth v. Suddarth, 515 S.W.2d 817, 820[3] (Mo.App.1974); Leaton v. Leaton, 435 S.W.2d 408, 412[4] (Mo.App.1968). Where the evidence does not preponderate in favor of either party, “the trial court is vested with broad discretion in awarding custody . . . ” Johnson v. Johnson, supra at 37[7].

Significant factors which led to the court’s custody award include the following:

Appellant entered into a continuing open adulterous relationship with one K_ K_. At trial appellant admitted having sexual intercourse with K_ K_ at his home and hers while the children were present in each place. The two older daughters stated they were aware their mother was sleeping with K_ K_ and lamentably have been somehow convinced this is acceptable conduct. The eldest daughter, D_ A_, testified:

Q. “Where does K.K. sleep when he speeds weekends [with your mother]?”
A. “Sometimes with my mother.”
Q. “Do you have any feelings about that?”
A. “No. Because I know they are just friends and she don’t really like him that much.”
Q. “Does she discuss with you things about sleeping with men friends?”
A. “No.”
Q. “Do you think that is all right?”
A. “Yes. Because they have known each other for a long time.”

The 11 year old D_ L_ testified:

Q. “Where did you go see him [K.K.] . ?”
A. “At his house.”
Q. “How much did you stay overnight?”
A. “Maybe two times a week.”
Q. “Where did your mom sleep?”
A. “In his [K.K.’s] bedroom.”
Q. “Are you sure of that?”
A. “Yes.”
Q. “Do you think that is all right?”
A. “Yes. I guess.”

Adultery is usually insufficient, without more, to stigmatize a mother an unfit custodian, as the principal relevancy of such activity is its effect upon the child. In re Marriage of Cook, 532 S.W.2d 833, 837[9] (Mo.App.1975); Klaus v. Klaus, 509 S.W.2d 479, 481[9] (Mo.App.1974). What we may not condone is exposing the children to adulterous and immoral contacts. This is not to say that moral considerations are not factors in awarding custody, V.M. v. L.M., 526 S.W.2d 947, 949-50[6] (Mo.App.1975); M.L. v. M.R., 407 S.W.2d 600, 602[1] (Mo.App.1966), but critical here is that the mother’s affairs were conducted with the children’s knowledge and while they were present in the house.

Another factor weighing heavily in favor of the trial court’s decree was the mother’s attempt to poison the children’s minds toward the father. Although the eldest daughter was apparently not respondent’s natural child, as appellant was pregnant at the time of marriage, respondent did marry her, knowing of the pregnancy, and raised the child as his own. It is regrettable his chivalrous act was so basely repaid some twelve years later. Respondent gave the child his love and his name, established a home and raised her as his daughter; yet appellant admitted that following the separation she told the child respondent was not her natural father. Notwithstanding her attempts to justify having so done, there can be little doubt and the record abundantly reveals the mother’s action had a damaging effect upon the father-daughter relationship to say nothing of the emotional effect on the child.

Asked by the court why she had done this, appellant responded as follows:

THE COURT: “Yet you are telling this Court that you have decided to tell this child a year after he has been her father for 12 years it was in her best interest to tell her he was not the father. Was that your motive or motives, just what was your motive when you told her that?”
A. “My motive right after we got married to have this understanding we would tell her as a young child. He always told me, ‘No’; so, when I did leave Ed I considered it may be more understanding with her and me about the problem that had occurred.”

She was willing to take respondent as her husband, have him raise the child and assume the role of father; but contrary to his wishes when the separation occurred, she told the child these things which she must have known would affect the child’s attitude toward the father. Yet when it came time to ask for money appellant made clear her willingness that respondent should provide support.

Q. “Are you asking this Court to order support for that child? Order your husband to pay support for that child?”
A. [Appellant] “He says he cares for her.”
Q. “He has no legal obligation in your judgment?”
A. [Appellant] “He is her legal father.”
Q. “He is?”
A. [Appellant] “Under law he is.”

The damaging effect on respondent’s relationship to his children became apparent in the marked change in their attitudes following the separation. In his words: “We got along well and since then [the separation] there has been drastic change. They are, I don’t know how to put it, they have no respect to duty or family or anything else.” He described the home relationship prior to the separation, explaining the children were assigned simple chores from time to time and the family seemed to do well as a unit. The children were paid allowances and disciplined if they failed to do their chores by restricting their “T.V.” time “or something like that.” The children responded well to this discipline.

The testimony as to the treatment of the children differs in that appellant contends respondent was cold and indifferent toward the children, respondent testified he treated them with affection. In this regard neither was shown unfit.

On some occasions respondent brought police officers with him to maintain the peace when he attempted to exercise his visitation rights because appellant had previously made it difficult for him. On one instance he presented a copy of the court’s order stemming from the contempt proceeding when seeking to exercise his visitation rights. When asked of this appellant’s disdain for the court’s judgment appears:

Q. “Were there any number of incidents where Mr. M_ had to bring the police over to the house?”
A. [Appellant] “There wasn’t a number. There was once or twice he brought them over with his little court order.” (Emphasis ours.)

In one instance the wife called police when respondent came to pick up the children, accusing him of “breaking and entering,” although it appears that no formal charges were made.

Change in the father-child relation manifested itself when respondent attempted to exercise his visitation rights prior to trial and the children became upset. He asked the girls the reason for this and they stated their mother had said he “threatened her life, . . . damaged her car and flattened her tires, . . . wouldn’t pay the gas bills, . . . stole the furniture out of the house to take in money . . .”

Conduct of one parent which seeks to instill disrespect or destroy affection of the children for the other parent is strongly condemned and may be grounds for denying custody. P.D. v. C.S., 394 S.W.2d 437, 445[10] (Mo.App.1965); S. v. G., 298 S.W.2d 67, 76[12-13] (Mo.App.1957). The conduct of a parent which interferes with the other’s custody rights is also grounds for denial of or change in custody, because such orders are designed to serve the children’s best interests. AsBell v. AsBell, 430 S.W.2d 436, 439[9] (Mo.App.1968); P.D. v. C.S., supra at 445[11, 12]; S. v. G., supra at 76[11].

We do not find that the trial court awarded custody to the father in order to punish appellant nor do we find that his custody award was an abuse of discretion requiring reversal. In our review we presume the trial court thoroughly weighed all the evidence and decreed custody as it believed would be in the children’s best interests. L.H.Y. v. J.M.Y., supra at 306[3]; Brand v. Brand, 534 S.W.2d 628, 632[7] (Mo.App.1976).

The father testified of his talks with the children whenever possible during the separation. He discussed with them their problems, school work, their interests and similar matters. The husband’s custodial plan was for his mother or sister to come and live with him in the family home. Appellant challenged respondent’s parental fitness, accusing him of striking the girls, making improper embarrassing remarks to them and acts of racial bias. Respondent denied some of these allegations, and as to the others about which he was not questioned, we bear in mind the trial court’s superior opportunity to judge the credibility and sincerity of the witnesses and to observe intangibles which may not be completely revealed by the record. E.(S.) v. E., 507 S.W.2d 681, 684[4] (Mo.App.1974); L.H.Y. v. J.M.Y., supra at 306[3]; Johnson v. Johnson, supra at 37[6]. In this case, tried without a jury, fact issues upon which no specific findings are made are deemed found in accordance with the result reached. § 510.310(2) RSMo 1969, V.A.M.S. Appellant’s contention as to the custody award is denied.

Appellant next contends the trial court erred in denying maintenance “because the undisputed evidence established that she is 40 years old, unemployed, with no income and has no independent resources, while respondent was employed with a substantial income.”

Section 452.335 provides “the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment . . . ”

Here appellant was awarded one-half the equity in the home and the only evidence of value placed the house at $35,000 with a mortgage indebtedness of $10,000. From this the court could conclude her one-half of the equity was approximately $12,500. Further appellant had work experience as a bank employee, clerk in a Venture Store and as a waitress. Appellant wasn’t employed at the time of trial because she had to “take care of the children.” She is no longer charged with this responsibility and may seek employment. If as appellant stated her expenses for the children had been $665 per month, that burden now falls on respondent. Respondent’s “take home pay” is $170 per week, which represents $736 per month. Additionally, the court as a relevant factor under § 452.335-2(7) must consider the “conduct of the party seeking maintenance during the marriage.” In light of these facts, we find no error in the court’s denial of maintenance. The point is ruled against appellant.

Following entry of judgment appellant obtained new counsel who promptly moved for new trial setting forth facts relative to respondent’s alleged unfitness as custodian and offering as evidence the child study report prepared by the social worker prior to trial. The proffered testimony consisted of evidence available at the time of trial or pertained to events occurring after trial and was therefore not relevant. The motion was overruled.

The trial court has broad discretion in granting a new trial “as to questions of fact and matters affecting the determination of issues of fact.” Berger v. Podolsky Bros., 360 Mo. 239, 227 S.W.2d 695, 697[2] (1950); Coonis v. City of Springfield, 319 S.W.2d 523, 528[10] (Mo.1958).

Appellant’s original counsel had the opportunity to introduce this evidence and the fact appellant now prefers a different strategy does not require admission of the evidence by the trial court. This was not “newly discovered evidence,” and we find no abuse of discretion in the trial court’s action. See Bruce v. Spillman, 497 S.W.2d 196, 200[2, 3, 4] (Mo.App.1973); Young v. St. Louis Public Service Co., 326 S.W.2d 107, 113[7] (Mo.1959); Koenig v. Skaggs, 400 S.W.2d 63, 68[7, 8] (Mo.1966).

After the motion for new trial was overruled and after the notice of appeal had been filed, appellant filed a second motion delineated “motion for modification of judgment” on January 15, 1976. No ruling appears to have been made on this motion and appellant filed a second notice of appeal on the 20th day of January, 1976. Appellant contends the trial court abused its discretion “in refusing to permit [appellant] to present the evidence mentioned . in her motion under Rule 75.01 . because [the motion was] in the nature of a request for leave to reopen the case for presentation of further evidence . . . ” As we have noted, appellant’s original motion for new trial was overruled prior to January 13 and the judgment became final at that time. Rule 81.05, V.A.M.R. Appellant then filed its timely notice of appeal and the trial court had no further authority to entertain the motion filed January 15, 1976, more than thirty days after entry of the judgment. Appellant suggests the court had continuing jurisdiction under Rule 75.01, V.A.M.R., for thirty days after entry of judgment but this has no application as the motion was filed on the 31st day. Rule 44.01(a). The point is denied.

The judgment is affirmed.

WEIER, P. J., and McMILLIAN, J., concur.

      . This award was subject to respondent’s payment of one-half of the value of the home (less 6% for commission purposes) to appellant.

      . In 1972 appellant’s extramarital involvement with K_ K_ led to a separation of the parties for about one month during that year.

      . Nothing in the trial court’s decree nor this opinion is meant to suggest that respondent is other than the lawful father of the child.

      . Appellant testified respondent had extra income from automobile repair work and from sign painting, a new trade he was learning. However, there is no indication in the testimony as to the possible amounts or regularity of such income.

      . The record discloses the judgment was entered on December 15, 1975, and appellant’s motion for new trial filed December 26. The date of entry for the order overruling the motion for new trial is not shown but this is followed by appellant’s first notice of appeal on January 13 and we conclude the order overruling the motion for new trial was in fact entered prior to January 13.


source: Caselaw Access Project

author: SMITH, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Milton FEEMSTER, Defendant-Appellant.
    No. 37008.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Oct. 26, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.

      Graham, Huck, Kasten & LaBeaume, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant appeals from his conviction of manslaughter following a jury trial. We affirm.

No attack is made upon the sufficiency of the evidence so only a brief review of the facts is necessary. Charles Oglesby was found in his home on January 30,1974, with a knife in his back. He was dead when found. Four stab wounds were in the body. A fingerprint search of deceased’s home produced fingerprints matching defendant’s. A man similar in appearance to defendant was seen by a neighbor in Ogles-by’s company at Oglesby’s home on January 29 at 5:30 a.m. Oglesby was not seen alive after that time. A stereo, identified as one purchased by the deceased and missing from his home after the killing, was recovered from defendant’s grandmother’s home. It had been brought to defendant’s mother by Yvonne Gentry, a girl friend of defendant and mother of his three children, and given to defendant’s grandmother by defendant’s mother. Defendant was admitted to City Hospital No. 1 on January 29 at 9:30 a.m. with a severe cut on his hand. When questioned upon arrest, defendant admitted knowing the deceased, denied he had ever been in deceased’s home, and stated the last time he had seen deceased was on January 21 on a public street. While in confinement awaiting trial defendant escaped from Homer Phillips Hospital.

At the trial defendant testified he was at deceased’s home on January 29; that they watched television from approximately 11:30 p.m. to 5:30 a.m. or later; that he had received the stereo from deceased prior to that time to repair it; that he did not stab deceased and left him alive. He testified that the cut on his hand occurred when he tripped and fell and cut it on a beer bottle as he was returning from a liquor store to Ms. Gentry’s home. He stated he attempted for some time to stop the bleeding himself but finally took a cab to the hospital when he was unable to do so. He was hospitalized for three days.

In rebuttal the state elicited evidence that the television movie defendant claimed to have watched with deceased was not shown on that night. Also called in rebuttal was Yvonne Gentry whose testimony will be discussed more fully later.

We deal first with defendant’s contention that a mistrial should have been declared when one of the police officers testified to defendant’s statements after arrest and then when asked if there were further questions and answers stated: “No., he refused to make any more statements.”

The answer was unresponsive and volunteered. It was not commented on further nor referred to at any other time. The trial court indicated it would consider some relief other than a mistrial, such as admonishing the jury to disregard, but defendant refused any relief other than mistrial. Considering the voluntary and unresponsive nature of the statement, its isolated occurrence in the trial, and the extreme relief sought by defendant, we do not find an abuse of discretion by the trial judge in denying the mistrial. State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972); State v. Humphrey, 462 S.W.2d 804 (Mo.1971); State v. Hampton, 509 S.W.2d 139 (Mo.App.1974).

Defendant’s remaining point is that the trial court erred in declaring Yvonne Gentry a hostile witness and permitting her impeachment. As previously indicated, Ms. Gentry was called as a rebuttal witness by the State. Her testimony concerning the statements of defendant concerning how he received the cut hand were in keeping with his testimony. The State sought to impeach this line of testimony through the use of her grand jury testimony which contained a different explanation made by defendant to her of the circumstances resulting in the cut.

Defendant states, and we agree, that in order for the court to allow a party calling a witness to treat that witness as hostile the witness must surprise the party propounding the questions with his answers and the answers as given must state facts which in effect make the witness a witness for the other side. State v. Castino, 264 S.W.2d 372 (Mo.1954); State v. Crone, 399 S.W.2d 19 (Mo.1966). We find both aspects of this test have been met here. Ms. Gentry had previously testified under oath before the grand jury. The State was entitled to rely upon that sworn testimony as indicative of what Ms. Gentry would testify to at trial. Her testimony at trial was different from her grand jury testimony. As given at trial, her testimony was in complete harmony with defendant’s explanation of the circumstances surrounding the cut. Her grand jury testimony was that he said he had received the cut while taking out the trash. That explanation was not consistent with defendant’s testimony at trial, particularly the answers given on cross-examination to the extensive, detailed interrogation by the State. The grand jury answers would have cast considerable doubt on the credibility of defendant’s in-court testimony. The answer given at trial by Ms. Gentry served exactly the opposite function — to buttress the credibility of the defendant. Ms. Gentry’s testimony at trial effectively made her a witness for the defendant. We find no error in the court declaring the witness hostile and allowing her impeachment.

Judgment affirmed.

NORWIN D. HOUSER and ALDEN A. STOCKARD, Special Judges, concur.


text:
    In the Matter of K. M. B. and R. M. B., minors. D. L. B. and S. E. B., Petitioners-Respondents, v. J. A. (B.) H., Respondent-Appellant.
    No. 37074.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 2, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.

      Charles F. Johnson, Buffalo, for respondent-appellant.
    Martin Schiff, Jr., Webster Groves, Claude Hanks, Clayton, for petitioners-respondents.
   SMITH, Chief Judge.

Appellant J.A.(B.)H. is the natural mother of K.M.B. and R.M.B., minors. The trial court, after a contested hearing, entered a decree of adoption of K.M.B. and R.M.B. by D.L.B., the natural father and by S.E.B., their stepmother and present wife of D.L.B. J.A.(B.)H. appeals. We reverse.

J.A.(B.)H. and D.L.B. were divorced' in 1965 and the custody of the children was placed in D.L.B. In 1970, he married S.E.B. and the children continued to reside with D.L.B. and S.E.B. In July, 1974, D.L.B. and S.E.B. filed their “Petition for transfer of Custody and Adoption” of the children. The petition did not allege consent by the natural mother as required by Sec. 453.030 RSMo 1969, or exceptions (1), (2) or (3) of Sec. 453.040, RSMo 1969. Paragraph 6 of the petition, in an apparent attempt to invoke exception (4) of that section alleged:

“Petitioners further state that the natural mother of the said children namely, J.A.B. . . .did desert the said children and for a period of more than one year prior to the filing of this Petition has not contributed in any manner to the support, maintenance and care of the said minor children and has shown no actual desire to have custody of the said children by supporting and caring for the said minor children and therefore has given up her rights as a parent of the said minor children.”

The evidence at hearing was undisputed that the children were in the legal custody of the father, that the mother was under no legal requirement to support them, and that they were not in want. It also established that the mother provided no support for the children at any time after the father obtained actual custody in 1965. The evidence was also undisputed that the mother had no contact with the children from early 1966, to January, 1973, when she visited them in St. Louis. Her evidence, contradicted, would show some very minimal efforts to contact the father during this period. The real dispute at the hearing hinged around the mother’s activities after January, 1973, to reestablish contact and maternal bonds with her children. We need not in this opinion determine whether the evidence was sufficient to establish willful abandonment between July, 1973, and July, 1974, the statutory period required under Sec. 453.040(4). We need not reach this determination because the issue of willful abandonment was neither pleaded by the petitioners nor decided by the Court.

Under Missouri law the consent of the natural parent or one of the statutory exceptions to such consent is necessary before an adoption may be decreed. Sec. 453.-030, and 453.040. This requirement is considered jurisdictional. In re E. C. N., 517 S.W.2d 709 (Mo.App.1974); In re Adoption of K., 417 S.W.2d 702 (Mo.App.1967). The only finding made by the Court in this critical area was that “The allegations of the petition for adoption are true.” But that petition does not allege any evidence-supported exceptions to the requirement of consent. We turn to paragraph six. The allegations of that paragraph set forth two factual statements purporting to obviate consent. The first that the mother deserted the children is insufficient for two reasons. First, the undisputed evidence shows she didn’t desert the children. Following the custody award the father went to Arkansas and with the aid of a local sheriff retrieved the children from the mother. Secondly, the desertion allegation in no way refers to the statutory period of one year before the filing of the adoption petition nor does it specify how long the alleged desertion lasted.

The second fact stated is that the mother has not contributed to the support, maintenance and care of the children and has shown no actual desire to have custody by supporting and caring for them. This allegation is apparently intended to establish “willful neglect”. But the evidence is undisputed that the mother was under no legal requirement of support, was not asked by the father for support, and that the children were not in need of her support. Those facts do not establish willful neglect by the mother. In re Adoption of J_, 396 S.W.2d 257 (Mo.App.1965).

The real thrust of the evidence of the adoptive parents was a willful abandonment. “Abandonment” requires that the parent willfully give up the child and intend that this severance be of a permanent nature. In re M. J. M., 483 S.W.2d 795 (Mo.App.1972) [3, 4]. The conduct of the parent which amounts to abandonment must have occurred for the year immediately preceding the filing of the adoption proceeding. In re Adoption of J-, supra, (Mo.App.1965) [5, 7]. There must be a settled purpose to forego all parental duties and relinquish all parental claims throughout that statutory period. In re Adoption of J_, supra, [3, 4]. A prior abandonment may be repented of and terminated. In re Adoption of J_, supra, [5-7]; T. H. v. Ambelang, 497 S.W.2d 210 (Mo.App.1973) [4-6]. “Repentance of the abandonment may be determined by the actual or attempted exercise of parental rights and performance of parental duties following the abandonment.” T. H. v. Ambelang, supra, [4-6]. Unless there is a consent of the natural parent, or a substantial showing of some statutory condition obviating the necessity of consent, the court has no power to enter a decree of adoption. In re Adoption of K., supra, [11-13].

The issue of willful abandonment was neither pleaded by petitioners nor found by the Court. Since the petition failed to allege any evidence-supported exception to the mother’s consent, the finding of the trial court that the allegations of the petition were true does not support its decree of adoption. Accepting as true the evidence-supported allegations of paragraph 6, there was no basis upon which the court could exercise its jurisdiction under the statute. The conduct of the mother prior to 1973 could support a finding of abandonment. But, whether that conduct continued thereafter and during the statutory year was sharply disputed. The crucial question was whether her conduct during the year prior to the filing of the adoption petition established a continuation of her prior abandonment or whether it reflected a repentance and termination of her prior disinterest. Since this statutory exception to her required consent was not pleaded and not found by the court, we reverse the judgment.

Judgment reversed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.

      . The consent of the adoption of a child is not required of . . . (4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned me child or willfully neglected to provide him with proper care and maintenance.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Euylan V. HURVEY, Petitioner-Appellant.
    No. 37688.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 9, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
    S. Gerald Miller, Clayton, for petitioner-appellant.
   DOWD, Judge.

Defendant was convicted of burglary with intent to ravish, § 560.040, RSMo 1969, and sentenced to 10 years in the custody of the Department of Corrections under the Second Offender Act, § 556.280 RSMo 1969. Two points are raised in this appeal.

Defendant first claims that a fatal variance existed between the charges embodied in the information and the evidence offered at trial. Defendant was charged with and convicted of burglary with the intent to ravish. § 560.040, RSMo 1969. The evidence produced at trial was entirely consistent with the information. The evidence showed that the victim was present in her apartment at the time of the offense. Sufficient force was used to break the lock and doorframe. After gaining entrance, the defendant raped the victim. The prior intent to ravish was shown by the completion of the act. State v. Terry, 325 S.W.2d 1, 6[7] (Mo.1959). We find no variance between the information and the evidence. The contention is without merit.

Defendant next claims that the court’s failure to instruct on the definition of the word “ravish” was prejudicial error. Jury Instruction Number 5 required a finding of an “intent to ravish” in order to find defendant guilty of burglary. Defendant had not originally requested that a definition of “ravish”' be given to the jury. Seven minutes after the jury retired to deliberate, the jury sent a note inquiring “what is ravish?” After an off-the-record discussion with counsel, the trial court replied “The jury will be bound by the evidence and the instruction of law as given by the Court.”

In criminal cases, the trial court must instruct the jury on all the law necessary to the case, whether requested or not. Rule 26.02(6). Legal or technical terms whose meanings may not be readily comprehended by the jury should be defined. State v. Jackson, 369 S.W.2d 199 (Mo.1963). Nevertheless, “it has long been the rule that words of common usage which are generally understood, when used in a charge to the jury, need not be defined in the absence of a request, . . . and not always when requested.” State v. Goodman, 490 S.W.2d 86, 87 (Mo.1973). Words should not be defined if a reasonably intelligent jury would not be misled by use of the term, if the “attempt at an all encompassing definition would only add confusion,” and if “an attempted definition directed to the facts of a particular case would constitute a comment on the evidence.” State v. Goodman, supra at 88.

We believe that the word “ravish”, while somewhat archaic, is a common term and a synonym for rape. A recent opinion treats “rape” and “ravish” as synonymous terms and holds that use of the word “ravish” in a jury instruction upon the charge of rape is not erroneous. State v. Bohannon, 526 S.W.2d 861, 864 (Mo.App.1975). Had the trial court in the case now before us defined “ravish”, the jury might well have been confused. The jury could confuse an instruction defining “ravish” with a verdict directing instruction upon the charge of rape, a crime not charged against defendant.

Jury Instruction Number 5 is the approved instruction for burglary in the first degree. MAI-CR No. 7.20. The approved instruction does not require or recommend that the court define the felony which the burglary defendant allegedly intended to commit within the building burglarized. The trial court did not err in refusing to give an instruction defining “ravish” since such an instruction is not an MAI-CR instruction. State v. Abram, 537 S.W.2d 408 (Mo.banc 1976). State v. Abram, supra, held that the trial court in a homicide prosecution erred in giving a jury instruction defining “intends.” The definitional instruction was given after the jury had requested it. The Supreme Court reasoned that “intends” or “intentionally” were ordinary terms and should not be defined absent an MAI-CR instruction. State v. Abram, supra at 411.

We have found no error. The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.

      . Indeed, the definition of forcible rape found ii i § 559.260 RSMo 1969 is “forcibly ravishing any woman of the age of sixteen years or upwar


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leon GILBERT, Defendant-Appellant.
    No. 37232.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 16, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.

      David V. Uthoff, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Leon Gilbert appeals from a judgment of conviction entered upon a jury verdict finding him guilty of Attempted Burglary Second Degree.

In the early morning hours of March 2, 1975 police officers were dispatched to 4651 Dr. Martin Luther King Drive in the City of St. Louis to answer an alarm that was sounding at that address. They observed that the locks to the door at 1502 Marcus Street (on the side of the building) were missing; that there were newly created markings on the door and wood chips in the doorway and on the ground. Officer Henderson pushed open the door at 1502 Marcus and observed someone wearing dark clothes running up a flight of steps to the second floor. On the inside of the entrance there was a big hole in the wall of the stairway. Debris and an iron pipe were on the floor near the hole. Located on the other side of the wall was Best Candy and Tobacco Company, which occupied the entire first floor of the building. On the previous evening, when the owner of the candy-tobacco company left the building, there was no hole in the wall, and the doors had been locked. Upon arrival of other policemen, Officers Henderson and Wagner conducted an investigation of the vacant apartment on the second floor. In one room the officers found one Robert Jones. A crowbar with bits of plaster on both ends was also found in that room. In the next room officers found appellant and one Sylvester Taylor hiding inside a closet behind some theatre seats, hunched down in a crouched position, with their hands attempting to cover their faces. All three subjects were arrested. All three had cement-type debris on their clothing. A criminologist testified that the debris on Taylor’s clothing was of the same color and consistency as the plaster taken from around the hole in the wall, but she did not find a sufficient quantity of plaster on appellant’s clothing to compare with the plaster taken from around the hole.

After the State closed its case defense counsel asked that Officer Henderson be recalled for further cross-examination “with regard to the plaster, the comparisons; Officer Henderson was so sure they could have been matched. But Miss Ruem-mler [the criminologist] indicated they could not be, were not susceptible of a match. And, further, I want to make a circumstantial inquiry into the ages of the defendants.” The State objected on the ground that counsel for the defendant had had ample opportunity to cross-examine the officer at the time he testified. The court sustained the objection and the witness was not recalled.

Appellant did not testify or offer any evidence.

Appellant’s first point is that the court erred in refusing to give the second paragraph of MAI-CR 2.10 as a part of Instruction No. 6, for stated reasons. Appellant has failed to set forth in full Instruction No. 6 in the argument portion of his brief, as required by Rule 84.04(e), as a consequence of which he has failed to preserve this point for appellate review. State v. Larkins, 518 S.W.2d 131, 135[3] (Mo.App.1974); State v. Mesmer, 501 S.W.2d 192, 197[12] (Mo.App.1973).

Appellant’s second point is that the court erred in overruling his objection to testimony regarding a burglary at 1502A Marcus (that the doors leading into that address were broken, i. e., the street door and the door at the top of the steps leading into the vacant apartment) because this was proof of other crimes for which appellant was not on trial (the charge on which appellant was tried being attempted burglary of Best Candy and Tobacco Company). Appellant urges that this tended to confuse the jury and resulted in finding him guilty of the crime charged because of the proof of these other crimes. There is no merit in this contention. Proof of breaking and entering the downstairs door at 1502 Marcus was a necessary part of the proof of appellant’s attempt to enter the candy-tobacco company store by making a hole in the wall in the entryway and entering the candy-tobacco store through that hole. Proof of breaking the door at the top of the stairway was a necessary part of the proof of appellant’s entry into the upstairs apartment in the course of flight from the immediate scene, and concealment from detection and apprehension. This evidence was admissible as a part of the res gestae. It related to links in a chain of occurrences so intimately and necessarily connected with the crime charged as to be part and parcel of the proof of attempted burglary of the candy-tobacco store. State v. Bell, 359 Mo. 785, 223 S.W.2d 469, 471[1] (banc 1949). “ ‘Evidence covering the commission of other offenses is admissible when two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other. * * * State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 25 (1938); State v. Hendrix, 310 S.W.2d 852, 855 (Mo.1958); State v. Larkins, 518 S.W.2d 131, 136[10] (Mo.App.1974).

Appellant’s third point is that the court erred in allowing the circuit attorney during final argument to orally instruct the jury by defining reasonable doubt; that it is improper to define reasonable doubt; that the circuit attorney’s erroneous definitions shifted the burden of proof to appellant and minimized the State’s burden of proof. On this appeal counsel for appellant paints with a broader brush than that used in the trial court. There he made no objection — failed to take exception in the trial court — to that part of the circuit attorney’s argument pertaining to the question of reasonable doubt, but on appeal he argues forcibly against the circuit attorney’s statements. At the trial counsel for appellant sat mute throughout the circuit attorney’s discussion of reasonable doubt, and waited to object until the circuit attorney made this statement: “Now, I think what this boils down to, and I think perhaps you will agree with me, putting all the legal terms aside, it boils down to a question of common sense.” Appellant’s specific objection follows: “Objection; reasonable doubt is not common sense; not now and never has been.” The trial judge commented, “It’s final argument, gentlemen.” Thereupon the prosecutor continued: “What you have to do, ladies and gentlemen, is in terms of common sense, and the terms of reasonable doubt is ask yourself, now that I’ve heard all of the evidence, now that I’ve heard everything the State is going to bring forth, I have to ask myself, is the evidence that the State has shown, is it reasonable, is it logical, is it consistent with the other evidence you’ve heard; does it just boil down to make good old common sense. That, ladies and gentlemen, is really what the issues of this case boil down to.”

This point is disallowed. Appellant’s precise objection at trial was to the use of the term “common sense” in connection with the subject of reasonable doubt. Appellant may not alter or broaden the scope of his objection on appeal. State v. Larkins, supra, 518 S.W.2d l. c. 134[1], and Supreme Court eases cited. Accordingly, we decline to review appellant’s present complaints about the circuit attorney’s references to reasonable doubt, which were not the subject' of an objection at trial, and were not brought to the trial court’s attention in the motion for new trial. We confine our consideration to the question whether the circuit attorney went beyond permissible limits in his reference to common sense. We disagree with appellant’s conclusion that the prosecutor was saying that “reasonable doubt amounts to common sense” and that the prosecutor was improperly “instructing the jury that it [was] their duty to convict if the case [made] common sense.” Considering what he said at the time the objection was made in the context of his preliminary remarks, we interpret the argument to mean that the issues were reduced to the question whether, considering the evidence and issues as a whole, and looking at the case in the exercise of their common sense, there was a reasonable doubt in their minds as to the guilt of the defendant. This involved no shifting or minimizing of the State’s burden of proof. Many if not most cases boil down to a question of common sense. “Common sense does not always make law, but law and common sense are likely to be one and the same unless divorced and thereby violently put asunder by lawmaker or judge.” Lamm, J., in Third Nat. Bank v. St. Charles Savings Bank, 244 Mo. 554, 149 S.W. 494, l. c. 499-500 (1912). We decline to take a stand against common sense or question its employment in the determination of jury issues, whether the issue be reasonable doubt of guilt or any other determination. “While not ideally perfect, yet, having been brayed in the mortar of experience with the pestle of common sense, as human institutions run, trial by jury has stood the test of use and justifies itself as indispensable.” Lamm, C. J., in Whiteaker v. Chicago, R. I. & P. R. Co., 252 Mo. 438,160 S.W. 1009,1. c. 1012 (1913). The trial judge considered the argument unexceptional and we concur in his assessment.

Appellant’s final point is that the court erred in not allowing him to recall Officer Henderson for further cross-examination to further test the credibility of the officer as to the amounts of powdery plastic-like substance found on appellant’s clothing, and develop the ages of the three persons arrested for the purpose of drawing an inference that it was not reasonable that the 17-year-old defendant would be a joint participant with Jones and Taylor, each of whom was 35 years of age.

We find no error in the trial court’s ruling. We have read Officer Henderson’s testimony in the light of Criminologist Ruemmler’s subsequent testimony, and find nothing in the testimony of the criminologist which could be used to impeach the testimony of the officer, so there was no error in refusing to recall the officer for the announced purpose of impeachment. With respect to evidence of discrepancy in ages, there was nothing to prevent cross-examination of the officer on this subject when he was on the stand, nor was there anything to prevent appellant from making independent proof of the age discrepancy, without himself taking the stand. Whether to allow recall of witnesses for impeachment purposes is a matter within the discretion of the trial court, State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 696[17] (1943); State v. Langston, 515 S.W.2d 852, 854[2] (Mo.App.1974), and we find no abuse of discretion in the ruling.

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Bruce SHELTON, Appellant.
    No. 37225.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.
    R. A. Hampe, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

Defendant was tried for and convicted of assault with intent to kill without malice (§ 559.190, RSMo. 1969), sentenced to three months in jail and fined $500. On appeal defendant raises only one issue concerning the admission of evidence.

Defendant contends the trial court erred in admitting certain out-of-court statements as declarations against interest because there was no showing the testimony of the declarant was unavailable. This is not mentioned in defendant’s motion for new trial and therefore is not properly preserved for review. State v. Amerson, 518 S.W.2d 29[1] (Mo.1975) and State v. Gomillia, 529 S.W.2d 892[1] (Mo.App.1975).

Furthermore, plain error Rule 27.20(c) will not be applied since evidence of defendant’s guilt is overwhelming. State v. Hurtt, 509 S.W.2d 14[3] (Mo.1974); State v. White, 529 S.W.2d 22[3] (Mo.App.1975).

We have concluded that an extended opinion in this case would have no prece-dential value and affirm the judgment in accordance with Rule 84.16.

WEIER, P. J., and DOWD, J., concur.


text:
    STATE of Missouri, Respondent, v. Sylvester DAVIS, Appellant.
    No. 37858.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.
    Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Evelyn M. Baker, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant guilty of stealing a display cabinet worth over $50. As a second offender, the court sentenced him to two years’ imprisonment. He has appealed, contending only that the trial court erred in refusing his verdict-directing instruction submitting stealing property worth less than $50. Defendant concedes evidence by the owner showed the stolen property was worth at least $700 and that there was no evidence of a lesser value.

As declared in State v. Manley, 513 S.W.2d 703[6, 7] (Mo.App.1974), and cases cited therein, a verdict-directing instruction must have evidentiary support, and an instruction on stealing less than $50 need not be given where the only evidence of value is that the stolen property is worth over $50.

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: WEIER, Presiding Judge.

text:
    Raymond HOWARD, Petitioner, Plaintiff-Appellant, v. J. B. BANKS and St. Louis Board of Election Commissioners, et al., Defendants-Respondents.
    No. 38507.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 23, 1976.

      Howard, Singer & Meehan, Raymond Howard, Jr., St. Louis, for plaintiff-appellant.
    Daniel R. Sokol, Clayton, Timothy G. Noble, St. Louis, for defendants-respondents.
   WEIER, Presiding Judge.

On August 20, 1976, the Board of Election Commissioners of the City of St. Louis certified that J. B. Banks was the winner by 617 votes over Raymond Howard in the August 3rd primary election for the office of State Senator of the Fifth Senatorial District. The count so certified was 7,407 votes for Banks and 6,790 votes for Howard. These totals included 6,488 regular votes for Banks, 6,403 regular votes for Howard, 919 absentee votes for Banks, and 387 absentee votes for Howard. Howard contested the election alleging fraud, misconduct and irregularity with respect to absentee balloting to such an extent that more than 617 absentee ballots were invalid, thus placing the results of the election in doubt. Howard requested a preliminary hearing to determine if he was entitled to a recount under the provisions of §§ 124.010 and 124.020, RSMo 1969. During the conduct of this hearing, the parties stipulated that if the evidence was material to any of the issues in the case, the machine balloting results were in error by 100 votes so that Banks actually received only 6,388 machine votes and Howard actually lost by only 517 votes. Because the petition claimed no irregularity with respect to the regular votes voted on the machines, the trial judge properly refused to allow the introduction of this evidence; but at a later time he did allow contestant to amend his petition so as to include this block of votes in the contest. We will therefore consider the margin of victory on this appeal at 517 votes.

On September 10, 1976, the court sustained the defendant’s motions to dismiss and found against the contestant on the evidence adduced. The court determined that Howard had failed to make a prima facie case of the invalidity of a sufficient number of ballots equal to or greater than the margin of defeat. This appeal was expedited pursuant to § 124.050, RSMo 1969.

Contestant Howard, on appeal, contends that the trial court erred in sustaining the respondent’s motions to dismiss because the voters and notaries who voted and officiated at the voting of the absentee ballots failed to follow mandatory provisions of the statutes. Hence, sufficient ballots were placed in doubt to require the ruling that a recount be held. The key to a decision on this issue is whether the contestant has made a prima facie showing that the election results were “in doubt” as provided in § 124.020, supra. As stated therein, “where the issue is drawn over the validity of certain ballots cast, a prima facie case is made if the validity of a number of ballots equal to or greater than the margin of defeat is placed in doubt.” Contestant need not show that he actually won the election, but the doubt shown must be sufficient to justify a recount. State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357, 363[10] (Mo.App.1974).

Section 112.050, RSMo 1969, sets out the requirements with regard to how the ballot should be marked and returned in part as follows:

“1. The absentee voter shall make and subscribe to the affidavits provided for on the return envelope before any officer authorized by law to administer oaths. The voter shall exhibit the ballot to the officer unmarked, and shall in the presence of the officer and of no other person mark the ballot in such manner that the officer cannot see or know how it is marked. The ballot shall then in the presence of the officer be deposited in the envelope and the envelope securely sealed. If the voter is blind or physically incapable of marking the ballot, he may be assisted by a person of his own choosing in marking and depositing the ballot. The officer shall then write or print upon the envelope the following: ‘Absentee ballot of (insert name of voter) marked and sealed in my presence’, which certificate shall be signed by the officer and his official title noted thereon. The envelope shall be sent by mail by the voter, postage prepaid, to the election authority, or may be delivered in person by the voter, or his assistant if the voter is blind or physically incapable of marking the ballot, to the issuing official, who shall give his receipt therefor. * *

It has long been the philosophy of the law in this state that where the law itself declares a specified election irregularity to be fatal, the courts will follow that command, irrespective of their views of the importance of the requirement. Where such declaration is absent, the courts attempt to determine whether the deviation from the requirements of the law has or has not so vital an influence on the proceedings as would probably prevent a free and full expression of the will of the people. “It has been sometimes said, in this connection, that certain provisions of election laws are mandatory, and others directory. These terms may, perhaps, be convenient to distinguish one class of irregularities from the other. But, strictly speaking, all provisions of such laws are mandatory, in the sense that they impose the duty of obedience on those who come within their purview. But it does not, therefore, follow that every slight departure therefrom should taint the whole proceedings with a fatal blemish. Courts justly consider the chief purpose of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end; and, in order not to defeat the main design, are frequently led to ignore such innocent irregularities of election officers as are free of fraud, and have not interfered with a full and fair expression of the voters’ choice.” Bowers v. Smith, 111 Mo. 45, 20 S.W. 101, 105 (banc 1892). It has been stated that this conclusion in election cases is best based upon the proposition that when the voter has performed his own duty in accordance with the law he is justified in doing nothing more and his rights should not be defeated through the remissness and dereliction of the election officers. Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159, 1163 (banc 1916). See also, Kasten v. Guth, 395 S.W.2d 433, 435[2, 3] (Mo.1965). Thus, in State ex rel. School District of City of Jefferson v. Holman, 349 S.W.2d 945, 949[6, 7] (Mo. banc 1961), the failure of an official to supply absentee ballots 30 days before the election as required by statute did not void the election since the requirement was directory only. Again, failure to follow the statute requiring a notary to include the date his commission expires on a certification did not make the certification and ballot invalid. New v. Corrough, 370 S.W.2d 323, 326[3-5] (Mo.1963).

Contestant urges that the use of the word “shall” in §§ 112.040 and 112.050, RSMo 1969, makes the requirements found therein mandatory irrespective of whether it applies to the voter or to the officer. The use of the word “shall” indicates a mandate and will usually be interpreted to command the doing of whatever is required. But the courts recognize that the term is frequently used carelessly and indiscriminately, and they have not hesitated to hold that the intent of the legislative enactment will prevail over the literal sense of its terms. Thus, public policy frequently impels interpretation of statutory language as directory so that acts of commission or failures to act by omission of public officials may not prejudice the rights of citizens having no direct and immediate control over such officials. State ex rel. Hopkins v. Stemmons, 302 S.W.2d 51, 54[4, 5] (Mo.App.1957); Elliott v. Hogan, 315 S.W.2d 840, 846[2] (Mo.App.1958).

A review of the evidence is necessary to determine whether, under the light of the authorities herein discussed, contestant has placed sufficient number of votes in doubt to have made a prima facie case requiring a recount. We first examine the testimony of Ercycle B. Strother Robinson, a notary who contestant claims did not fully perform the official functions required under §§ 112.040 and 112.050, supra, in the casting of 346 absentee ballots. There was a conflict in her testimony with regard to two matters: 1) She testified that none of the voters exhibited their unmarked ballots to her prior to voting. However, on cross-examination she said that the ballots were exhibited to her unmarked before they were voted. 2) She testified on direct examination that others were present when many ballots were marked. On cross-examination, however, she said that the others were present in the house but not in the room where the voting occurred. In each instance there was substantial evidence from which the trial court could find that the requirements of the statute were complied with. We defer to the trial court’s determination and finding under this conflicting evidence. Rule 73.01.3(b). The third charge of irregularity in the voting of the ballots handled by Ms. Robinson concerns her failure to write in the name of the voter on the envelope as set out in § 112.-050, supra, as follows: “The officer shall then write or print upon the envelope the following: ‘Absentee ballot of (insert name of voter) marked and sealed in my presence’, which certificate shall be signed by the officer and his official title noted thereon.” This occurred on some 260 of the ballots. It is unfortunate that Ms. Robinson did not follow the terms of the statute and complete this certification, but we do not believe that failure to do so invalidates these votes for the reason that the affidavit set out on the envelope as required under § 112.040 contains all of the information with regard to the name of the voter. In addition, there is no dispute that Ms. Robinson signed her name on each envelope below the following printed statement:

“I hereby certify that the affiant has exhibited the enclosed ballot to me unmarked, and that such ballot was marked by the voter or an assistant if indicated above, and I enclosed and sealed same in this envelope, without my seeing or knowing his vote * * *.”

The certification required by § 112.050, supra, is a duty obligatory on the notary. But here it, in effect, requires information which has already been given. We therefore determine that under the circumstances of this case it is directory.

We next pass to the question of the validity of 47 absentee ballots notarized by witness Corine Chatman. Contestant charges Ms. Chatman read the oath prior to the voter marking his ballot. He asserts that the oath must be administered after the voter has marked his ballot and sealed it in the envelope. Ms. Chatman’s testimony indicates that the pattern she followed in all 47 cases was to first read the oath to the voters and apparently the other matter on the outside of the envelope as prescribed in § 112.040. She stated she did this “to let them know what it was all about”, but she further testified that the voter did not sign the affidavit before he voted. Rather, he signed it after he voted and after she had filled it out. Section 112.050 does not prescribe the sequence in which these matters should take place. In fact, the first sentence of the section states that the voter should make and subscribe to an affidavit on the return envelope. The next sentence requires that the voter exhibit the ballot to the officer unmarked, and then in the presence of the officer mark the ballot. In the absence of more specific directions in the statute, we cannot fault the notary for following this sequential pattern in the taking of the affidavits. The final act of executing the affidavit was done by the voter when he affixed his signature to the affidavit after the ballot had been voted and sealed inside the envelope. It was also charged that in some instances a person or persons other than the notary, Ms. Chat-man, were present when the voter marked his ballot. In the one instance cited in the record to this court, it was not brought out in the testimony as to what this person was doing, or why he was there. Section 112.-050, supra, specifically makes provision that if the voter is blind or physically incapable of marking the ballot he may be assisted by a person of his own choosing in marking and depositing the ballot. In the absence of further development in the evidence, we are unable to determine whether this ballot was improperly marked.

Because the court below is sustained in its determination that the result of the election was not placed in doubt by a review of the testimony of notaries Robinson and Chatman as to a total of 393 votes, we disregard the testimony as to the remaining absentee ballots and have affirmed the judgment of the lower court.

DOWD and STEWART, JJ., concur.


author: PER CURIAM.

text:
    Dorothy Mae CRADIC, Petitioner-Appellant, v. Howard H. CRADIC, Respondent-Respondent.
    No. 10345.
    Missouri Court of Appeals, Springfield District.
    Dec. 7, 1976.

      Ted M. Henson, Jr., Scott & Henson, Poplar Bluff; for petitioner-appellant.
    L. Michael Lorch, Robert M. Ramshur, Piedmont, for respondent-respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   PER CURIAM.

The parties in this case were married seventeen years before the wife filed her petition for dissolution of marriage on June 24, 1975. A fifteen-year-old son and a thirteen-year-old daughter were born of the marriage. The family home since 1971 or 1972 had been a double-wide mobile home located at Williamsville in Wayne County, Missouri. The husband, however, had lived there with his wife and children only on weekends. During the weekdays he lived in Pevely, Missouri, to be near his place of employment, Western Union, in Bridgeton, Missouri. Although in the purported judgment the court awarded the double-wide trailer to the husband, it awarded the wife rent-free use of the trailer for four years and granted the husband access to the trailer “upon reasonable notice at reasonable times.”

The judgment entered by the court awarded custody of the children to both parents, and the respondent-husband was ordered to “maintain and provide for the necessities for the two children born of this marriage.”

On appeal the wife challenges the custody and child support awards. She also challenges the division of marital property and the propriety of granting the husband access to the trailer while she used it as her home. However, we do not reach the merits of the latter points. We reverse and remand since we deem the judgment unenforceable and void as to custody and child support.

In a custody dispute, the welfare of the child is of paramount concern. In Re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975); Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975); Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975); Feltman v. Feltman, 514 S.W.2d 353 (Mo.App.1974). Some association with each parent will serve a child’s best interests as long as neither parent is unfit. Graham v. Graham, 428 S.W.2d 941 (Mo.App.1968). But “the interest of the child is best served from a standpoint of stability if one or the other parent is given full custody with reasonable visitation rights to the other parent.” Wood v. Wood, 400 S.W.2d 431, 437 (Mo.App.1966). Accordingly, both before and since passage of § 452.375, RSMo Supp.1975, courts have consistently awarded one parent permanent or major custody and the other parent temporary or minor custody. McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974); M_ L_ v. M_ R_, 407 S.W.2d 600 (Mo.App.1966).

In Hawkins v. Hawkins, 462 S.W.2d 818 (Mo.App.1970), we said at 821-822(4): “[I]n the absence of evidence that either parent is an unfit person to care for the child, a trial court is obliged to award custody to one parent or the other, § 452.120; Sanders v. Sanders, 223 Mo.App. 834, 839, 14 S.W.2d 458, 460[7] . . ..”

In Sanders v. Sanders, cited in Hawkins, this court pointed out that the court had the duty to decide between contesting parents when the issue of child custody was raised. “They are entitled to a permanent home with the parent under whose custody they will fare best.” 14 S.W.2d at 463.

The Kansas City Court of Appeals in Paxton v. Paxton, 319 S.W.2d 280 (Mo.App.1958), stated at 289: “Unless both parents are utterly unfit, we must grant custody to one or the other, and so we look at these two existing alternatives.” (emphasis added)

In Brand v. Brand, 441 S.W.2d 750 (Mo.App.1969), the original divorce decree awarded the parents joint custody of the minor children. No appeal was taken from the decree. Thereafter, on the father’s motion to modify the decree, the trial court granted him general custody with reasonable visitation rights for the mother. In the appeal of the modification order, this court, speaking through Hogan, J., said at 753:

“[T]he record before us plainly shows that the ‘joint custody’ provision was a matter of stipulation and agreement between the parties, rather than an adjudication upon contested facts. For present purposes, it is unnecessary to consider whether the original decree is in fact definite and specific enough to be considered as an award of custody, see Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 125-126, it is sufficient to say that in our view, the order appealed from must be considered as an original adjudication of custody, rather than a modification.”

In the Schumm case, cited in the above quotation, the court pointed out “[I]n the very nature of things general custody must be awarded to one parent as against the other . . ..” 223 S.W.2d at 125 (Mo.App.1949).

We are of the opinion that the ruling in the cases cited that general custody must be given to one parent or the other, absent unfitness of both, is sound and the same reasons support this proposition today as in earlier years. We do not read § 452.-375, Laws 1973, p. 189, as changing the law, as suggested by respondent-husband. We hold that portion of the lower court’s decree awarding joint custody is void.

The child support portion of the decree ordering the husband to “maintain and provide for the necessities for the two children born of this marriage” is indefinite and void. A support decree, since it is a judgment for money, must specify with certainty the amount for which it is rendered. Taylor v. Taylor, 367 S.W.2d 58, 62 (Mo.App.1963).

The wording in the present support decree is similar to that found in the original decree rendered in Goldstein v. Goldstein, 237 Mo.App. 274, 165 S.W.2d 876 (1942), where the father was ordered to “maintain [the] child in clothing and furnish whatever monies are necessary for school and other purposes for said child.” 165 S.W.2d at 878. In Goldstein, when the parents could not agree upon the sum “necessary” to maintain the child, the mother moved to modify; the trial court then decreed that the father should pay $15.00 per month and the Kansas City Court of Appeals affirmed.

There was a similar result in Rodden v. Rodden, 527 S.W.2d 41 (Mo.App.1975), where on the mother’s motion to modify, the father had been ordered to “pay all extraordinary medical expenses” incurred by the Roddens’ son. The mother appealed claiming the award was too ambiguous to be enforced. The St. Louis District agreed, and reversed and remanded. At 43-44 the court said:

“ . . . [A] judgment relating to the payment of ‘all extraordinary medical expenses’ would be unenforceable. A judgment for money must specify with definiteness and certainty the amount for which it is rendered, and a judgment incapable of enforcement because of indefiniteness is void. Loomstein v. Mercantile Trust National Ass’n, 507 S.W.2d 669 (Mo.App.1974). In Loomstein it is held that an order requiring the defendant to pay ‘all sums necessary for his daughter’s college and graduate school tuition, books, room and board’ was unenforceable, as there were no specific sums or methods to compute the costs. The judgment was held void because external proof would be required to ascertain the specific amounts to be collected. So, too, in this case, plaintiff would be required to bring in external proof of specific extraordinary medical expenses, thereby making the provision void.” (footnotes omitted).

Accordingly, we reverse and remand to allow the development of a more complete record concerning custody and support. We direct the trial court, after considering the augmented record, to award permanent custody to one parent and temporary custody to the other, and to fix and determine any child support with certainty.

All concur.


author: BROCK, Justice.

text:
    Linda Gayle SAYLORS et al., Appellants, v. Raydean RIGGSBEE and Don Eugene Anderson et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 6, 1976.
    J. Travis Price, Springfield, for appellants.
    Jerry W. Carnes, Branstetter, Moody & Kilgore, Nashville, for appellees.
   OPINION

BROCK, Justice.

This is an action for damages for wrongful death due to personal injuries resulting from an automobile accident. The issue is whether substituted service under the nonresident motorist statute, T.C.A. § 20-224, was timely.

The plaintiffs’ decedent, Aubrey Mann Link, was killed in an automobile accident on March 14,1969, while riding as a passenger in the automobile of Opal Leath Cline, deceased, whose administrator is the appel-lee here. The statute then in effect provided that the Secretary of State should be deemed the agent for acceptance of service of process on the nonresident motorist for one year from the date of the accident in cases of personal injury claims arising out of accidents occurring on Tennessee highways. On February 10, 1970, that statute was amended to authorize service of process on the Secretary for so long as the action is not barred by the statute of limitations. T.C.A. § 20-224, Acts 1970, Chapter 396, § 1.

Suit was filed originally on March 13, 1970, and process was served on the Secretary of State for Don Eugene Anderson as Administrator of Cline’s estate. On June 22,1972, the plaintiffs obtained a voluntary nonsuit of the action against defendant Anderson. Suit was reinstituted on June 22, 1973, the Secretary again accepting service of process on June 28, 1973.

Remedial or procedural statutes apply retrospectively not only to causes of action arising before such acts become law, but to all suits pending when the legislation takes effect, Frame v. Marlin Firearms Co., 514 S.W.2d 728 (Tenn.1974); Mid-South Milling Co., Inc. v. Loret Farms, Inc., 521 S.W.2d 586 (Tenn.1975), unless the legislature indicates a contrary intention or immediate application would produce an unjust result, Roberts v. Knoxville Transit Lines, 36 Tenn.App. 595, 259 S.W.2d 883 (1953). The usual test of the “substantive” or “procedural” character of a statute for this purpose is to determine whether or not application of the new or amended law would disturb a vested right or contractual obligation. Mid-South Milling Co., Inc. v. Loret Farms, Inc., supra; National Life & Accident Insurance Co. v. Atwood, 29 Tenn.App. 141, 194 S.W.2d 350 (1946). The test of retroactivity is well amplified by a Kansas case, Jones v. Garrett, 192 Kan. 109, 386 P.2d 194 (1963) which describes “procedure” as:

“[T]he mode or proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding, the court is to administer — the machinery, as distinguished from its product; . . . including pleading, process, evidence, and practice . Practice [is] the form . . .for the enforcement of rights or the redress of wrongs, as distinguished from the substantive law which gives the right or denounces the wrong. . . . ” 386 P.2d at 198-199. (Emphasis added.)

The process statute there construed, like the statute here under consideration, created no rights and imposed no liabilities. It merely prescribed a procedure for obtaining jurisdiction over the defendant’s person. Therefore, it was held not to be improper to give effect to it, even though suit was begun before the passage of the act, and even if (as the court assumed) the defendant would not have been subject to the state’s process at all under prior law.

Although decisions to the contrary may be found, Stern v. Mottram, 20 Conn.Sup. 406, 137 A.2d 551 (1957); Clouse v. Andonian, 189 F.Supp. 78 (D.C.Ind.1960), the better view is that “non-resident motorist statutes” providing for service of process upon the non-resident motorist by serving an official of the state wherein the accident occurred are remedial or procedural in nature, do not involve the question of liability of the defendant and may be given a retrospective application. Speight v. Miller, 223 Tenn. 259, 443 S.W.2d 657 (1969); Steffen v. Little, 2 Wis.2d 350, 86 N.W.2d 622 (1957); Hoen v. District Court, etc., 159 Colo. 451, 412 P.2d 428 (1966); Clews v. Stiles, 303 F.2d 290 (10th Cir. 1960); Jones v. Garrett, supra; Austinson v. Kilpatrick, 82 N.W.2d 388 (N.D.1957); Green v. Brinegar, 228 Iowa 477, 292 N.W. 229 (1940); Zavis v. Warren, 35 F.Supp. 689 (D.C.Wis.1940). Such statutes are designed for the benefit of persons injured within the state where the accident occurred rather than for the benefit of nonresident motorists causing such injuries, Anderson v. Outland, 210 Tenn. 526, 360 S.W.2d 44 (1962), and should be given a liberal construction in accord with that purpose, Williams v. Kitchin, 316 F.2d 310 (6th Cir. 1963); O’Sullivan v. Brown, 171 F.2d 199 (5th Cir. 1948). Unless ambiguous, a strict construction is not in order. Anderson v. Outland, supra.

Our decision in Speight v. Miller, supra, is controlling here. The accident which was the subject of the suit in that case occurred before the passage of an amendment to the statute increasing the duration of the “agency” of the Secretary of State for accepting service of process from one year to three years after the accident in actions for damage to property. Acts of 1968, Ch. 574, § 1. Suit was filed after the amendment became effective and substituted service was made one year and four days after the accident. The Court held that the service of process was valid as to the property damage claims. Now, Ch. 396, Acts of 1970, has extended the authority of the Secretary of State for “accepting” service of process for the nonresident motorist with respect to both personal injury and property damage claims. There being no factual distinctions between the Speight case and the instant one, the holding in Speight must be followed.

We are not unmindful of the opinion of this Court in Henderson v. Ford, Tenn., 488 S.W.2d 720 (1972), which contains some statements which are not in harmony with this opinion. Nevertheless, the validity of Speight as authority was recognized in Henderson v. Ford. Furthermore, the Court in the Henderson opinion appears to have given too much credence to the theoretical “appointment” by the nonresident motorist of the Secretary of State as his “agent” for “acceptance of service of process.” This “agency” exists only in theory and is a pure fiction. Olberding v. Ill. Central R. Co., 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953); Whalen v. Young, 15 N.J. 321, 104 A.2d 678 (1954); Odgon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686 (1953). This fiction was adopted by legislatures years ago to solve a problem posed by the introduction of the automobile; it was considered necessary to resort to it in order to justify assertion of jurisdiction over the nonresident motorist. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). Of course, the fiction is no longer necessary to legal theory now that modern concepts of jurisdiction, as exemplified by the “Long Arm Statutes,” are in vogue. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945).

We hold that service of process upon the defendant appellee was valid and that the trial court erred in quashing such process and abating the action.

The judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion. Appellee will pay the costs incurred upon appeal.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.

      . The amendment in question was not an extension of time as here, but a provision to include not only the motorist who was a nonresident at the time of the accident but also the resident motorist who subsequently removes himself from the jurisdiction. Kansas General Statutes § 8-401 (Supp.1961).


author: HENRY, Justice.

text:
    H. D. LESSORS, INC., Appellant, v. George M. TIDWELL, Commissioner of Revenue, Appellee.
    Supreme Court of Tennessee.
    Dec. 20, 1976.

      Hubert A. McBride, Edward M. Kaplan, G. Keith Rogers, Jr., Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for appellant.
    R. A. Ashley, Atty. Gen., Everett H. Falk, Asst. Atty. Gen., Nashville, for appellee.
   OPINION

HENRY, Justice.

This action was brought by a Tennessee corporation, seeking to recover excise tax and interest paid under protest, with respect to fiscal years 1968-1970 and 1973. The sole issue presented is the right of the corporation to use the apportionment formula, as contained in § 67-2706, T.C.A., on the basis of its “doing business in Tennessee and elsewhere”. The Chancellor decided adversely to the corporation and we concur in his conclusion.

I.

H-D Lessors, Inc. is a Memphis-based Tennessee corporation engaged in the long term leasing of automobiles and trucks, both within and without the state. Its mo-dus operandi is somewhat involved, but it all boils down to the fact that H-D leases vehicular equipment, purchased in Tennessee and other states, through salesmen employed by various automobile dealerships. The entire operation is managed from the Memphis office. The lease contracts are prepared there, mailed to the lessee for signature, and returned to Memphis for signature of H-D. All billings are made through the Memphis office. H-D pays all taxes, license and fees on each rented unit but recovers them from the lessee.

H-D neither owns nor rents any out-of-state real estate, maintains no out-of-state office, has no out-of-state employees, maintains no out-of-state inventory, is not domesticated in any foreign state, has no agent for service of process in any other state and pays no income, excise or other tax measured by net earnings in any other state. In short, its out-of-state contacts are minimal.

II.

This Court handed down a comprehensive opinion on the criteria for establishing that a corporation is “doing business in Tennessee and elsewhere” within the meaning of the apportionment statute in Navarre Corp. v. Tidwell, 524 S.W.2d 647 (Tenn.1975) and we again went into the matter in Tidwell v. Gaines Manufacturing Company, 526 S.W.2d 460 (Tenn.1975). An extended discussion of these cases would serve no useful purpose.

In Navarre we reviewed prior Tennessee decisions establishing the requirement that it was necessary that a corporation seeking the benefits of apportionment show a substantial number of contacts with other states, and we emphasized, as had earlier cases, that domestication and the payment of excise taxes, or their equivalent, were two paramount considerations. Neither is present in the instant case. We recognized that these are not the only criteria but held that in their absence, “a very strong showing would have to be made”, 524 S.W.2d at 650, to entitle the corporation to apportion.

In Gaines we permitted apportionment in the absence of domestication and excise tax payment to other jurisdictions, but we did so on the basis of “permanent and substantial contacts” to include full-time employees, leased showrooms and warehouses, the payment of personal property taxes and the maintenance of inventories, in other states.

We reiterate the non-rigidity of the domestication and excise tax payments to other states’ requirements and our willingness, as in Gaines on a showing of substantial contacts, to uphold a corporation’s right to apportion. The burden, however, is upon the corporate taxpayer to bring itself within the intendment of the apportionment formula. Ownbey v. Butler, 211 Tenn. 366, 365 S.W.2d 33 (1963). Here the taxpayer has failed to carry that burden.

Affirmed.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.


text:
    REFRIGERATED TRANSPORT CO., INC., Appellant, v. HERNANDO PACKING CO., INC., Appellee.
    Supreme Court of Tennessee.
    Dec. 20, 1976.

      Thomas A. Stroud, Goff, Sims, Cloud & Stroud, Memphis, for appellant.
    Stephen H. Biller, Charles R. Krivcher, Goodman, Glazer, Strauch & Schneider, Memphis, for appellee.
   OPINION

HENRY, Justice.

This controversy between a consignor and a common carrier of property involves the carrier’s liability for misdelivery of cargo transported under a straight bill of lading. The trial court found the issues against the carrier and we conclude that he reached the correct conclusion.

I.

On January 3, 1975, Hernando Packing Company, Inc., of Memphis, shipped via Refrigerated Transport Company, Inc., a truck load of frozen meat consigned as follows:

[T]o BROWARD COLD STORAGE (acct. of J&A Trading Co.) 3220 S.W. 2nd Avenue . . . Fort Lauderdale, Florida.
Broward is a public warehouse.

Prior to making this shipment Hernando had received a call from an individual who identified himself as A1 Hark and held himself out to be a representative of J&A Trading Company. In point of fact he had no connection with J&A Trading Company and that company had gone out of business. Hernando had never done business with A1 Hark, but on one prior occasion, had shipped to J&A Trading Company pursuant to a transaction with Joseph Hark, its then representative and owner, and father of A1 Hark.

It is fairly inferable from the record that this unfamiliarity with A1 Hark prompted the precaution of making the shipment to Broward, a public warehouse, for the account of J&A. However, the record is not specific in this regard and the shipment may have been made thusly as a matter of custom in the business or trade.

On January 6, 1975, upon the arrival of Refrigerated’s truck in Fort Lauderdale, it was met across the street from Broward by A1 Hark, but within sight of Broward’s manager. Without the knowledge of Her-nando or reconsignment or assent of Bro-ward, and after representing himself to Refrigerated’s driver as being a representative of J&A, A1 Hark caused 84 boxes, or 5,040 pounds of boneless beef to be delivered to another address. Refrigerated’s driver did not contact Broward and, insofar as the record shows, delivery was made solely on the basis of the verbal representations of A1 Hark.

The next morning Refrigerated’s truck came to Broward’s dock and was again met by A1 Hark. In the sight and presence of the Broward manager, Hark directed that a part of the remaining meat be reloaded on another truck and that the balance be stored with Broward to the account of J&A. A1 Hark again represented himself to be a representative of J&A. The record does not show when, to whom, or if the driver surrendered the bill of lading.

By these maneuvers, A1 Hark acquired possession of 246 boxes, or 9,520 pounds of meat ranging from ribeyes to oxtails and having a stipulated value of $5,880.86.

On January 7, 1976, Joseph Hark was informed of the arrival of the meat, whereupon he called Hernando and advised that J&A was out of business; that it had placed no order; and that this was not the first time his son, A1 Hark, had placed such orders in the name of J&A. Hernando called Broward to direct that the meat not be delivered to A1 Hark but was informed that delivery had already been made and without any reconsignment from Broward.

The trial judge, on this set of facts found and decreed:

That the consignee on the Straight Bill of Lading herein was Broward Cold Storage at 3220 S.W. Second Avenue, Ft. Lauder-dale, Florida, and that the Defendant had an absolute duty to deliver the frozen meat involved herein to said consignee and to no other.

II.

This controversy pivots upon the precise provisions of the bill of lading, viz: the consignment to “Broward Cold Storage (account of J&A Trading Co.).” Refrigerated earnestly insists that this, in effect, was a consignment to “J&A Trading Co., care of Broward Cold Storage.” While this position is plausible, when consideration is given to the nature and purpose of bills of lading, the duties and obligations arising thereunder, and to the plain terms of the consignment, we cannot embrace this theory of the case.

At the very outset we point out that we are dealing with a “straight” bill of lading which is “[a] bill in which it is stated that the goods are consigned or destined to a specified person”, 49 U.S.C. Sec. 82, which is not negotiable and must be so marked (it was in this case), 49 U.S.C. Sec. 86, as opposed to an “order” bill, 49 U.S.C. Sec. 83.

Delivery under a straight bill of lading may only be made to “[a] person lawfully entitled to the possession of the goods, or (b) the consignee named” therein. 49 U.S.C. Sec. 89.

While there are various areas of potential disagreement inherent in this controversy they all boil down to a single question: Who was the consignee under the bill of lading?

In our view, there is no ambiguity. The consignment was to Broward. The parenthetical matter inserted simply advised the warehouse as to the identity of the ultimate receiver of the goods upon Broward’s reconsignment. The only address inserted was that of Broward. A1 Hark’s name does not appear on the bill. It is fairly inferable that the consignment was to Broward as a precautionary measure against an unknown purchaser. Such would have been reasonable and prudent. But we need not speculate since the language was clear. There is no way that this delivery could have been properly made except to Broward and at Broward’s address. Most assuredly a street corner delivery to a stranger not named in the bill and not shown by the record to have presented any credentials or authority cannot constitute valid delivery. All the driver ever had to do was to present his bill of lading to an authorized representative of Broward. The failure to do so was a breach of the contract of carriage.

To constitute a valid delivery, absent special circumstances, it is imperative that delivery be made to the right person, at the proper time and place and in a proper manner. This is implicit in the Contract of Carriage.

It is stated in Volume 13, American Jurisprudence, 2nd, Carriers § 416 that “a carrier who delivers to an alleged agent of the consignee does so at its own peril with respect to his status as such.” Cited in support of this assertion is our own case of Dean v. Vaccaro & Co., 39 Tenn. 488 (1859), which is fully supportive.

Pertinent to the issue is the North Carolina case of Griggs v. Stoker Service Co., 229 N.C. 572, 50 S.E.2d 914 (1948), wherein the Court said:

The duty of a common carrier is not merely to carry safely the goods entrusted to him, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination. 50 S.E.2d at 919.

Another case involving misdelivery of cargo, is Dickman v. Daniels Motor Freight, 185 Pa.Super. 374, 138 A.2d 165 (1958), wherein the delivery was made to a business establishment having a similar name and under circumstances suggestive of fraudulent conduct by a “swindler” who placed the order. The bill of lading was directed to a definite company at a definite address. The Court said:

A common carrier is under an absolute duty to deliver goods to the person designated in the instructions of the shipper. If it fails to follow the express instructions of the shipper in making delivery, it acts at its peril and assumes the risk of wrong delivery. 138 A.2d at 167.

In Richardson v. Railway Express Agency, Inc., 258 Or. 170, 482 P.2d 176 (1971), the Court held that a carrier making a delivery to one other than the named consignee “has the burden of proof to establish the ownership and right of possession of the goods at the time of such delivery.” 482 P.2d at 178. The Court indicated the settled rule to be that carriers

. are held strictly to the performance of their duty to make delivery of goods at the place of destination to the person designated to receive them if he presents himself or can be found with reasonable diligence. 482 P.2d at 179. Refrigerated makes the urgent insistence

that delivery to an imposter will discharge the common carrier “if it is to the imposter that the consignor actually intends to ship.” We do not fault this as a general rule of law; but, as already pointed out, the shipment, for reasons we think self-evident, was to Broward.

Refrigerated relies upon Chicago, M., St. P. & P. R. Co. v. Flanders, 56 F.2d 114 (8th Cir. 1932); however, there the imposter held all documentary indicia of ownership and the cattle were consigned to him.

Also relied upon is Malvern Cold Storage Co. v. American Ry. Exp. Co., 206 Iowa 292, 220 N.W. 322 (1938); however, according to Refrigerated’s brief filed in this Court, “[t]he circumstances were such that the consignor’s actual intention was to deliver to [the imposter].” (Emphasis supplied).

Next we are cited to Fulton Bag & Cotton Mills v. Hudson Navigation Co., 157 F. 987 (S.D.N.Y.1907). There no public warehouse was involved; identity of names was involved; due inquiry was made by the carrier prior to delivery; and proper notification was given pursuant to the bill of lading.

Other cases cited by appellee are also distinguishable.

In 54 A.L.R. at 1330, in an annotation relating to delivery to an imposter, it is stated that “the general rule places liability on a carrier for a misdelivery to an imposter of goods placed in the hands of the carrier for shipment”. Among the cases cited in support of this proposition is our case of Sword v. Young, 89 Tenn. 126, 14 S.W. 481 (1890).

Sword is analogous to the instant case. One Gillenwaters ordered a brick machine under the assumed name of Magrauder, representing Magrauder to be a firm name. Upon arrival of the machine in Knoxville, Gillenwaters presented the bill of lading made in the name of Charles G. Magrauder, paid the freight and took possession of the machine.

The Court recognized the “well settled general rule that the carrier must deliver to the consignee at the place appointed”, and thereafter stated:

It can make no difference that the defendant carrier thought, because Gillen-waters had the bill of lading, that he was Charles G. Magrauder. If he was a stranger, as the proof shows him to be, it was the duty of the carrier to have required him to identify himself as the consignee or his rightfully constituted agent.
The consignment was to Charles G. Ma-grauder. That name was fixed on the machine, and it was a duty to deliver to him only, or, if he could not be discovered, to notify the consignor.
There is no difference between this case and one in which a consignment has been made to an actual person, and the goods delivered by accident, mistake, or carelessness to a cheat who represents himself as the real consignee. It is necessary in both to have proof of identity or authority to receive. 89 Tenn. at 128-29, 14 S.W. at 481.

We hold that Refrigerated breached its duty to deliver the cargo to Broward, the party designated in the bill of lading; that delivery to A1 Hark was at Refrigerated’s peril; that the burden of validating this delivery by establishing Al Hark’s ownership and right to possession was upon Refrigerated and that it failed to carry that burden.

While we make this holding within the context of our view that Broward was the consignee, had we adopted Refrigerated’s view that J&A Trading Company was the consignee, with the goods being shipped “in care of” Broward, the result would be the same. This necessarily follows from the facts that J&A was not in existence; that A1 Hark had no connection with J&A; and that delivery was made to him without proper inquiry and without notice to Bro-ward, or J&A. Had such inquiry been made and such notice given the driver would have discovered that he was dealing with an imposter.

III.

Refrigerated counter-claimed for the unpaid freight bill in the sum of $675.00 together with interest thereon. The trial court dismissed the counter-claim, without assigning any reason therefor.

We note that the bill of lading contains the entry “FREIGHT TO BE PAID BY: J&A TRADING CO.” in Miami. This may have prompted the trial judge.

The record before us is not sufficient to pass upon this portion of the controversy. The bill of lading shows that 498 boxes of meat, weighing 31,068¾ pounds were shipped. The stipulation shows that A1 Hark diverted 246 boxes weighing 9,520 pounds. The remaining 252 boxes, containing 21,548 pounds were delivered to Bro-ward.

We have no hesitancy in declaring that Refrigerated, by misdelivery of the diverted meat, breached its contract of carriage and forfeited its right to receive compensation to that extent. Superficially it would appear that Refrigerated would be entitled to recover for the carriage of that portion of the meat ultimately delivered to Broward. However, we make no holding in the latter regard; we merely recognize the considerations involved.

On remand, the trial judge will reconsider the counter-claim and enter such judgment as the facts may indicate and justice may require.

Affirmed in part and remanded.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . “Bills of lading issued by any common carrier for the transportation of goods. . . . from a place in one State to a place in another State”, among others, are governed by the Federal Bills of Lading Act 49 U.S.C. Sections 81-124.

      . See Vol. 13 Am.Jur.2d, Carriers, Sec. 405 et seq., and particularly Sections 405, 406, 411 and 415.