author: SMITH, Judge. McMILLIAN, Judge,

text:
    STATE of Missouri, Respondent, v. Walter C. PEEBLES, Appellant.
    No. 37231.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Frank Anzalone, Asst. Public Defender, William J. Shaw, Public Defender, Clayton, for appellant.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of assault with intent to do great bodily harm with malice and the resultant twelve year sentence imposed by the court pursuant to the second offender act. We affirm.

On appeal defendant raises two points. Neither challenges the sufficiency of the evidence to support the verdict, but both points require review of the evidence. Defendant was in custody in the St. Louis County Jail in Clayton. On the night of the crime defendant decided to sleep in the dayroom of tank number 3 rather than in a cell. Each tank consisted of three eight man cells and a dayroom. Prisoners had the option of sleeping in a cell or in the dayroom. Two other prisoners, Brown and Stanton, also stayed in the dayroom for the night. Brown and Stanton were playing cards and watching television. Defendant watched television for awhile and then went to sleep. About 3 a. m. defendant awoke and requested that Brown and Stanton be quieter. Brown testified that defendant then got up, said, “its killing time” and came after Brown with a razor blade held in a piece of cardboard. Defendant slashed at Brown causing a cut on Brown’s ear and then pursued Brown around the dayroom slashing at him until guards entered the dayroom. .

Defendant testified that Brown and Stanton were homosexual sweethearts and were playing cards when he woke up. Upon defendant requesting them to quiet down, Brown approached defendant and stated, “No, you are not talking to me, I should be fucking you.” Defendant heard Brown ask Stanton for “the matchbook” and then as Brown approached observed a razor blade in Brown’s hand. When Brown attempted to strike defendant with the blade, defendant knocked it out of Brown’s hand and removed it from the floor after scuffling with Brown. At some point during Brown’s attack, Brown said something to defendant about “sucking his penis.” As defendant recovered the blade, he heard Brown yell to Stanton to get “the needle.” Defendant further testified that when he slashed Brown on the ear and during the chase he feared his life was in danger from Brown and Stanton. He stated that when the guards entered the dayroom he no longer feared a “sexual assault” and immediately stopped and gave the blade to the guard captain.

The testimony of the guards did not cast any light on the beginning of the conflict, but did support the testimony of both participants that defendant was chasing Brown around the dayroom. It also supported defendant’s testimony that as soon as the guards entered the dayroom defendant stopped and handed the blade to the captain. At that time defendant also said, “I cut the nigger. Get me out of here.”

Defendant’s first point is that the court erred in allowing two of the guards to testify that defendant did not volunteer an exculpatory statement indicating he had acted in self-defense. The testimony of the guards related to the time immediately after the guards entered the dayroom. It is clear in Missouri that the silence of an accused when not under arrest and in circumstances such that only a guilty party would remain silent, is admissible as being in the nature of an admission against interest. State v. Butler, 512 S.W.2d 466 (Mo.App.1974) [1, 3]. It is equally clear that such silence may not be shown while an arrest is being made or after arrest, or when the defendant is “in custody.” State v. Butler, supra; State v. Taylor, 472 S.W.2d 395 (Mo. 1971) [1]; State v. Starkey, 536 S.W.2d 858 (Mo.App.1976) [1, 2]; State v. Burnett, 429 S.W.2d 239 (Mo.1968) [2]. Defendant relies heavily upon the fact that he was under arrest and in custody at the time the silence occurred. We do not find that that fact controls in this particular situation. The arrest and custody involved was not because of the offense about which defendant was partially silent. The presence of the guards was not for interrogation purposes, they came to the dayroom solely to stop an altercation. At the time of the guards’ arrival, they had no knowledge of what the circumstances surrounding the altercation were, who had been the aggressor, or whether an offense had actually occurred. Defendant’s statements and non-statements appear to have been volunteered or at most were in response to general information questioning directed at finding out what was going on. Under the circumstances here, it was unnecessary for the guards to enter the dayroom shouting Miranda warnings to make defendant’s statements or silence admissible. Defendant’s statements on some matters and silence on others were not the product of interrogation or of his custody. There was no error in admitting the testimony of the guards.

Defendant’s second point is that he was entitled to have included in the court’s self-defense instruction not only his belief in the danger of death or serious bodily harm but also that if he believed or had cause to believe he was in danger of a felonious sexual assault he had a right to defend himself. An instruction on resisting a felony is required if supported by the evidence. State v. Robinson, 328 S.W.2d 667 (Mo.1959) [1, 2]; State v. McQueen, 431 S.W.2d 445 (Mo.1968) [1—4]. We do not find such evidence here. Throughout the defendant’s testimony he expressed his fear of bodily injury. While there was evidence that Brown made references to sodomitic activities, there is no evidence that defendant was defending himself from sexual advances rather than from the threatened physical injury from the razor blade and “needle.” Nor do we find credible defendant’s assertion that the jury may have believed that had defendant submitted to sexual advances it would not have been necessary to otherwise defend himself. There is no evidence that Brown made any suggestion of consensual sodomy or that defendant believed he had any such choice. While a jury could infer that underlying the threat by Brown of bodily injury was an intention to commit a felony, it was not that underlying crime against which defendant was protecting himself but rather the threatened bodily injury necessary to commit that crime. Those cases relied upon by defendant involve circumstances in which no threat of great bodily injury was present, only the threat of some felonious conduct. We find no error in the court’s self-defense instruction. See State v. Thornton, 532 S.W.2d 37 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I dissent from that portion of the majority opinion which holds that the trial court did not err in allowing two of the guards to testify that the defendant did not volunteer an exculpatory statement indicating that he had acted in self-defense.

The “tacit admission” rule may be stated as follows:

“As a general rule, when a statement tending to incriminate one accused of committing a crime is made in his presence and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution against him, as evidence of his acquiescence in its truth — that is, as a tacit admission of the facts stated — or as indicative of a consciousness of guilt. . ” 29 Am.Jur.2d, Evidence § 638 (1967). See generally 31A C.J.S. Evidence § 295 (1964).

As discussed in State v. Samuel, 521 S.W.2d 374 (Mo.1975), there are three conditions which must be present for the rule to become operative in Missouri. These are: (1) the statement must be made in the presence and hearing of the accused; (2) the statement must be sufficiently direct, as naturally would call for a reply; and (3) the statement must not have been made at a judicial proceeding, or while the accused was in custody or under arrest. Id. at 375.

Applying these general principles to the present fact situation, it appears as though the “tacit admission” rule is not operative.

The first requirement that must be present to render the rule operative is that there must be a statement made which tended to incriminate one accused of committing a crime. The statement must be one of accusation. There were no such statements made. As the guards entered the cell to stop the altercation which was taking place between defendant Peebles and Richard Brown, the guard made inquiry as to what was happening. The guard, Milton Wright, on direct examination, testified that he asked the defendant what he was doing; however, he could not recall what his exact words were. In addition, the victim, Richard Brown, testified that guard Wright had, upon entering the cell, asked the defendant what he was doing. Thus, the purport of the statement made was at most a general inquiry into what was happening. The majority even concedes this, as the learned author states that “at the time of the guard’s arrival, they had no knowledge of what the circumstances surrounding the altercation were, who had been the aggressor, or whether an offense had actually occurred. Defendant’s statements and non-statements appear to have been volunteered or at most were in response to general information questioning directed at finding out what was going on.” (Emphasis added.) Therefore, as the majority apparently concedes, the statement made to the defendant was not one which was incriminatory or accusatory in nature, at most it was one of general information questioning. Hence, the “tacit admission” rule is inoperative, and testimony that the defendant did not make an exculpatory statement indicating that he had acted in self-defense should have been excluded as an infringement upon the defendant’s Fifth Amendment privilege against self-incrimination.

My second ground for disagreement is as follows. It is a general rule that before an admission by silence can be admitted, physical or emotional impediments to responding must not be present. McCormick on Evidence, § 270 (2nd Ed. 1972); Creager v. Chilson, 453 S.W.2d 941, 943 (Mo.1970). In the Creager case, the defendant was a highly excited and upset, seventeen year old girl, who had just been party to an automobile accident. Although the court admitted the testimony concerning her silence to accusatory statements on other grounds, it was implied that such circumstances where the defendant was emotionally upset at the time the accusatory statements would have warranted the silence. Applying this principle to the present situation, it definitely appears as though the circumstances were such that it would be unreasonable to expect a full and complete statement as to what prompted the altercation. A person, in jail, who allegedly had just been threatened with homosexual rape, and who had just had a physical altercation, would definitely have been in an excited and upset state. It would be unreasonable to expect a full recounting of the events which led to the altercation at the time the fight was stopped and emotions were running high. Had there been a cooling off period, a different result might be presented. However, under these circumstances, a full reply can not be expected, and any silence at this point should not be used against a criminal defendant.

My third ground for disagreement is as follows. The majority argues that the “tacit admission” rule is operative because the defendant was not under custody. The majority opinion claims that, “The arrest and custody involved was not because of the offense about which the defendant was partially silent.” This construction of the term “custody” appears too narrow in light of the serious abuses which may result otherwise.

The New Jersey Supreme Court has recently discussed these possible abuses where it stated:

“Some courts have been rather uncritical about this kind of evidence with the result that the rule has been subjected to considerable abuse in certain jurisdictions. For example, it has become the practice of some police to make wholesale accusations against one who may not even yet be formally an accused, or against one who is in jail. If the unfortunate ‘declarant’ abides by the maxim that ‘silence is golden’ and holds his tongue, he may find police accusations brought into court against him as substantive evidence, as an adoptive admission by silence.” Report, New Jersey Supreme Court, Committee on Evidence, 164 (1963).

In light of such possible abuse of the concept “custody,” and because one’s Fifth Amendment privilege against self-incrimination is involved, I feel that the term “custody” should be construed broadly so as to encompass any situation where physical incarceration is involved. The majority has cited no authority for his definition of “custody,” and I submit that such a narrow construction is not called for under these circumstances.

For the above reasons I would reverse and remand the cause for a new trial.

      . Defendant, Brown and Stanton are black.

      . We do not reach the question raised ex gratia by the dissent of whether the defendant’s silence or statements were in response to accusatory questions. At trial, in his motion for new trial and in his brief in this court defendant has restricted his claims of error to his fifth amendment contentions revolving around his custodial status. No challenge has been leveled or briefed on the applicability of the “tacit admission” rule except as it applies to defendant being in custody.

      . “It may be desirable and dramatic for the wrongly accused person to shout: ‘I am innocent !’ but not everybody responds spontaneously to stimuli. . . . There are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.” Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904, 906 (1967).


source: Caselaw Access Project

author: GUNN, Presiding Judge.

license: Public Domain

text:
    Carl F. ZELLER, Plaintiff-Respondent, v. Eric JANSSEN, Defendant-Appellant.
    No. 39018.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 16, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Robert W. Kaercher and Thomas M. Gi-oia, St. Louis, for defendant-appellant.
    Martin Schiff, Jr., Webster Groves, for plaintiff-respondent.
   GUNN, Presiding Judge.

The denouement of this court tried case for enforcement of a mechanic’s lien is found by resolution of the two following basic issues: (1) whether there is a basis to affirm the trial court’s finding for the plaintiff-respondent under the standard of review recited in Rule 73.01 and Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976); and (2) whether the plaintiff-respondent lienor executed a waiver in satisfaction of all claims.

We find the judgment supported by the evidence and that there was no valid lien waiver as to the claims. Hence, we affirm the judgment of the trial court.

The parties have made this relatively simple case unnecessarily abstruse. Plaintiff-respondent Zeller has disdained any aid to the court and has filed no brief, preferring, instead, to rest his case on a motion to dismiss defendant-appellant Janssen’s brief. While Janssen’s brief is no paragon, we nevertheless deny Zeller’s motion to dismiss Janssen’s brief and determine the case on its merits.

The trial court could have found the following. An oral contract was entered into whereby Zeller, a carpenter, was to build a house for Janssen for a price of $9,380. Zeller completed approximately 68% of the house plus $403 in extra work and was thereafter prevented by Janssen from doing any further work. Janssen paid Zeller $3,000 as part payment for the work completed. After Janssen refused to permit Zeller to continue work, Zeller duly filed his mechanic’s lien and brought suit in quantum meruit for the reasonable value of work performed and not paid for — a legitimate course of action. See: Curators of University of Missouri, ex rel. Shell-Con, Inc. v. Neb. Prestressed Concrete Company, 526 S.W.2d 903 (Mo.App.1975). Sixty-eight percent of the contract price of $9,380, minus $3,000 paid on account, plus $403 in working extra equals $3,783. The trial court’s judgment was for $3,783, plus 6% interest from the time the account accrued. We find that the judgment is supported by the evidence and comports with the standard of review recited in Rule 73.01 and Murphy v. Carrón, supra.

There were mighty contradictions between Zeller’s and Janssen’s evidence, including the quantity and quality of the work done. But such contradictions are for resolution by the trial court, and we do not interfere in that regard. Cloyd v. Cloyd, 564 S.W.2d 337 (Mo.App.St.L.Dist., 1978); Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344 (Mo.App.1977); Kim Mfg., Inc. v. Superior Metal Treating, Inc., 537 S.W.2d 424 (Mo.App.1976).

Janssen argues that Zeller had given a lien waiver in exchange for the $3,000 payment for work performed. This is so, but there was work done subsequent to the date for which no payment was received and which formed the basis for Zeller’s cause of action. There was no consideration for any lien waiver for work performed subsequent to the $3,000 payment. The lien waiver given did not extend beyond the time for which the consideration was given for services performed. Thus, no basis exists for Janssen’s argument on this point. See Herbert & Brooner Construction Co. v. Golden, 499 S.W.2d 541 (Mo.App.1973); St. Louis Flexicore, Inc. v. Lintzenich, 414 S.W.2d 787 (Mo.App.1967).

An extended opinion would have no prec-edential value, and the judgment is affirmed in accordance with Rule 84.16(b).

WEIER and KELLY, JJ., concur.

      . 68% of the $9,380 is actually $6,378.40, not $6,380 as found by the trial court. But the evidence was that the house was approximate-Iy 68% completed, thus allowing for the $1.60 difference.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Walter TOMICH, Appellant.
    Nos. 38675, 38676.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 30, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Robert C. Babione, Public Defender, Thomas R. Motley, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City,
    George A. Peach, Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court dismissing without evidentiary hearing movant’s Motion to Set Aside Guilty Plea. Movant had originally entered pleas of guilty to Sodomy, Rape, and Robbery in the first degree and received concurrent 35 year sentences on each charge.

On appeal movant contends that the motion to set aside his guilty pleas required an evidentiary hearing because movant’s allegations, if proven, would have rendered the guilty plea involuntary. The transcript on appeal contains neither the motion to set aside nor the State’s motion to dismiss. Movant purports to set forth both in his brief, but then asserts that certain factual allegations were made which do not appear in the motion included in the brief.

Rule 81.12 provides that the “transcript on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision . .” It is apparent that the sufficiency of movant’s motion to set aside cannot be decided in the.absence of the motion itself. Inclusion of trial documents in a brief does not satisfy the requirements of Rule 81.12.

Appeal dismissed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: DOWD, Presiding Judge.

text:
    In re the MARRIAGE OF Monica L. NOELTNER, Petitioner-Respondent-Appellant, and James L. Noeltner, Respondent-Appellant-Respondent.
    Nos. 39164, 39187.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 6, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Lawrence N. Koeln, Centerville, for petitioner-respondent-appellant.
    Daniel E. Rogers, Thomas P. Roberts, Clayton, for respondent-appellant-respondent.
   DOWD, Presiding Judge.

A custody dispute. Monica Noeltner and James Noeltner were married April 8, 1967. A son Dana Michael was born March 5, 1968, and a daughter Tess Louise was born November 15,1969. The parties separated December 28, 1974, and on March 10, 1977 the dissolution proceedings began in the circuit court of St. Louis County. On March 16, 1977 a decree dissolved the marriage and granted respondent James Noelt-ner custody of Dana and petitioner Monica L. Noeltner custody of Tess. The court also ordered respondent to pay petitioner $1.00 per year maintenance. Both parties appealed and the appeals were consolidated. In this court tried case, we must affirm unless there is no substantial evidence to support the judgment, unless it is against the weight of the evidence or unless it erroneously declares or applies the law. Rule 73.01; Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976).

The husband first claims the trial court erred in awarding primary custody of Tess to his former wife because such award is not in the child’s best interests. We agree.

The following facts were elicited at trial. Before the parties separated, Mr. Noeltner was working evenings for the railroad. While he was at work his wife had at least two parties although her husband was not aware that she did so. At one of the wife’s parties the guests played strip poker, and Dana stated he saw one person naked. In November, 1974, Monica Noeltner started keeping company with Carl Davis. Mrs. Noeltner moved out of her home on December 28, 1974, and took both of the children with her, as well as $2,000, half of the joint savings account. She moved into an apartment with Carl Davis, her brother and her brother’s girlfriend. She and Carl slept together in one bedroom, the two children slept in the other bedroom, and her brother and his girlfriend slept together in the living room. Her brother was not yet 21 years old at this time and his girlfriend was 17. Both of them testified that they used marijuana and amphetamines before moving in with Mrs. Noeltner. After Mrs. No-eltner and the children lived in this apartment two weeks, Mr. Noeltner picked Dana up at school and retained custody of him. Mrs. Noeltner continued to live in the apartment with Tess and Carl Davis and her brother and his girlfriend for four months. Tess saw her mother and Carl Davis in bed together four or five times and questioned her mother about it. She also saw her mother’s brother in bed with his girlfriend. During this four-month period, Mrs. Noeltner’s brother and his girlfriend were arrested for and later convicted of burglary of a dwelling and stealing a tape-deck and $10.00. Also during this time her brother was arrested for flourishing a rifle at respondent-husband. For the burglary her brother was jailed three months and given three years probation. He received a three months suspended sentence for the flourishing conviction. His girlfriend was sentenced to live for three years on probation at a halfway house for the burglary but became a fugitive when she failed to appear at the halfway house and was sentenced to six months in the county jail.

On May 1, 1974, Mrs. Noeltner and Tess moved to a new apartment in the City of St. Louis. There were two burglaries at this residence while they lived there, although no one was harmed. Carl Davis did not live there with Mrs. Noeltner but he would stay for a week at a time and they had sexual relations there. Her brother also stayed there for about six weeks after he got out of jail. His girlfriend stayed overnight at the apartment several times and the two of them engaged in sexual relations there.

In October of 1975, Mrs. Noeltner talked to a domestic relations worker and stated she planned to marry Carl Davis. She further stated that she did not feel that the age and racial differences would affect their marriage. On December 24, 1976, Monica Noeltner gave birth to Carl Davis’ baby. At trial Monica Noeltner indicated that it was now unlikely that she would marry Carl Davis although Carl seemed to still be interested in marriage. Tess has told her friends that Carl Davis is her father and that the illegitimate baby is her brother. As of the time of trial, Carl Davis had not had full-time employment for eight months and so had no way to contribute to the support of his and Mrs. Noeltner’s illegitimate child. Carl Davis seems to have a violent temper. A legal investigator who served a subpoena on him pertaining to the dissolution of marriage proceeding testified that Carl Davis threatened to kill Mr. No-eltner, his attorney, the judge and the legal investigator himself, and used vile and obscene language.

James Noeltner now lives in Cicero, Illinois with Dana. He acknowledged that before he and his wife were separated he did not pay much attention to the children. He explained this was because he frequently worked 16 hours at a time but on weekends spent a great deal of time with the children, taking them to picnics and the zoo. However, since he has had sole custody of Dana, he has been a very good father. He is interested in Dana’s education and attends PTA meetings at the parochial school where Dana is enrolled and has conferences with Dana’s teachers. He takes Dana to church every Sunday, and Dana serves as an altar boy there. When Dana is dismissed from school each day, he goes to a classmate’s house where his father picks him up at 4:30. He is with his father every night and on weekends. Mr. Noeltner prepares his son’s meals, buys him clothes, toys and books, and has taken him to Disneyland and to parks and zoos throughout the country. He enrolled Dana in a local park district program one summer where Dana took swimming lessons. Dana spoke to the judge in chambers and stated he was not happy when he lived with his mother and that he preferred to live with his father.

The child’s interests and welfare predominate over all other considerations in a custody dispute. L. W. v. G. W., 534 S.W.2d 826, 829[1] (Mo.App.1976), RSMo. § 452.375. The presumption that a mother is better fit to have custody of a young child is not conclusive. Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975).

The moral fitness of a parent is a vital factor in determining who should have custody of a child. L. H. Y. v. J. M. Y., 535 S.W.2d 304, 307[8] (Mo.App.1976). The statement we made in that case applies with equal force here. We stated at 307: “The mother, of course, is entitled to have her own social life. But the mother’s associations with men have not been harmless peccadillos, and we cannot ignore that her conduct may have an ultimate effect on the growth and character of her [child].” We further noted that private personal conduct by a parent which is likely to affect children during the years in which their character, morality, virtues and values are being formed cannot be ignored by courts and that a parent’s private conduct in the presence of a child or even under some other circumstances may well influence his or her young, impressionable life. L. H. Y. v. J. M. Y., supra, 535 S.W.2d at 308. Thus it is not only the parent’s licentious conduct, but the child’s exposure to it, that the courts examine. In re Marriage of L. M., 541 S.W.2d 760[4] (Mo.App.1976). Here Tess Noeltner, aged five, was exposed to a lifestyle where her mother lived with a man out of wedlock and gave birth to his illegitimate child. Tess’s uncle, age twenty, lived and slept with his seventeen year old girlfriend openly at Tess’s house and Tess saw them in bed together. During this time her young uncle and his girlfriend burglarized a home. Even when Mrs. Noeltner moved into a different apartment with Tess, Carl Davis would stay there for a week at a time. Mrs. Noeltner’s brother also moved in after he got out of jail and his girlfriend slept there with him 10-20 nights.

Mr. Noeltner stated he wanted custody of both children so that “they are brought up in a wholesome way and in a good Christian background.” He stated he felt that he was better prepared than Mrs. Noeltner to maintain a good atmosphere in which to raise both children. We agree.

In summary, there was strong evidence that Mrs. Noeltner conducted wild parties where strip poker was played; that her son saw one man totally naked at one of these parties; that she moved in with her twenty year old boyfriend who had been smoking marijuana for four years and slept with him while the children were at home; that her children were aware that their mother was sleeping with a man to whom she was not married; that Mrs. Noeltner’s minor brother was sleeping every night with a seventeen year old girl in the children’s living room, and the children were aware of it; that both her brother and his girlfriend had been involved with drugs and committed a burglary while living with Mrs. Noeltner; and that Mrs. Noeltner gave birth to an illegitimate child fathered by her boyfriend. We feel her past actions demonstrate she is far less capable than Mr. Noeltner of exercising proper parental judgment or raising her children in a moral environment.

We firmly believe that the order granting custody of Tess to petitioner was wrong and against the weight of the evidence. Murphy v. Carrón, supra. We reverse that part of the decree and order the custody of Tess granted to respondent.

In petitioner’s cross appeal she contends that the trial court erred in granting custody of Dana to Mr. Noeltner. We disagree for the reasons stated above. Accordingly, the trial court’s order regarding the custody of Dana Noeltner is affirmed.

Mr. Noeltner also appeals the court’s award to Mrs. Noeltner of $1.00 per year maintenance. At trial Mrs. Noeltner expressly waived her right to receive maintenance. She was asked if she was asking for separate maintenance or alimony and replied, “No, I’m not.” She was asked if she understood that if she did not ask for maintenance at that time she could not later request it. She replied, “Yes, I understand.”

We hold that the petitioner expressly waiver her right to maintenance and the trial court erred in making the $1.00 a year award for maintenance. Accordingly, the order relative to maintenance is reversed.

The judgment is reversed and cause remanded with directions to enter a judgment in accordance with this opinion.

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

      . Carl Davis is black and Monica Noeltner is white. At the time of trial, Monica Noeltner was 29 years old and Carl Davis was 22 years old.


author: PER CURIAM.

text:
    Ralph L. SYDNEY and Verona Sydney, Appellants, v. The COCA-COLA COMPANY, Respondent.
    No. KCD 29012.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.
    Motion for Rehearing and/or Transfer Denied July 20, 1978.

      Dennis G. Muller, Muller & Muller, Kansas City, for appellants.
    Jack F. Olson, Blackwell, Sanders, Mathe-ny, Weary & Lombardi, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and DIXON JJ.'
   PER CURIAM.

Plaintiffs brought an action seeking actual and punitive damages against defendant for removal of a Coca-Cola sign from the roof of certain premises occupied by plaintiffs in a suburban shopping center complex owned by a third party. Defendant was fully absolved by a jury and plaintiffs have appealed.

Plaintiffs rely on seven instances of purported trial error as grounds for relief on appeal. In addition to responding to each of the seven grounds individually, defendant submits that the verdict and judgment below in its favor should be affirmed because plaintiffs failed to make a submis-sible case. Two well established principles immediately come into play by reason of defendant’s stance on the want of evidence. One, the seven purported instances of trial error relied on by plaintiffs are immaterial and of no decisional moment on appeal if plaintiffs failed to make a submissible case. Osborn v. McBride, 400 S.W.2d 185, 188 (Mo.1966); Hoock v. S. S. Kresge Co., 230 S.W.2d 758, 761 (Mo. banc 1950); and Cottonwood Fibre Co. v. Thompson, 359 Mo. 1062, 225 S.W.2d 702, 708 (1950). Two, plaintiffs will not be heard to advance and this court will not entertain a theory of recovery on appeal different from that relied upon at the trial level. Morris v. Kansas City, 391 S.W.2d 198, 200 (Mo.1965); and Corning Truck & Radiator Serv. v. J. W. M. Inc., 542 S.W.2d 520, 527 (Mo.App. 1976).

Before the effect of the above principles can be fully reckoned with, plaintiffs’ theory of recovery at the trial court level must first be ascertained. On appeal plaintiffs take the position that two theories of recovery were embodied in their petition and advanced throughout the trial, namely, trespass to realty and trover for conversion of the sign. It is appropriate at this juncture to be reminded that the theory of a case is framed by the pleadings either as drawn or as amended by the evidence. State ex rel. Conaway v. Consolidated School District No. 4 of Iron County, 417 S.W.2d 657, 659 (Mo. banc 1967); White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18, 21 (1937); Miller v. Ranson and Company, 407 S.W.2d 48, 53 (Mo.App.1966); Rule 55.33(b).

This case went to trial on plaintiffs’ third amended petition, all of which suggests that plaintiffs labored under considerable difficulty in coming to grips with a definite legal theory upon which to rest their purported right of recovery. Plaintiffs’ third amended petition in its own right is far from and exemplar of clarity, and is, unfortunately, laced with considerable vagueness and uncertainty. After taking a hard look at it the only conclusion to be drawn is that it pleaded nothing more than an action of trover for conversion of a Coca-Cola sign in which plaintiffs claimed some vague property interest. The only mention pleadingwise of an entry upon real property, at best, was the whisper of a hint that conversion of the Coca-Cola sign was effected or perpetrated by going onto the roof of the premises occupied by plaintiffs. Pleadingwise, plaintiffs attached no significance to or claim of damages for defendant’s entry upon the realty to remove the sign. Plaintiffs’ emphasis, pleadingwise, was upon.the taking of the sign and their claim for damages (actual and punitive) was restricted to its taking and removal as reflected by the fact that the only actual damages claimed were for the intrinsic value of the sign and the loss of business occasioned by the unavailability of the sign to beckon customers to their place of business. From a pragmatic point of view, the following excerpt from the opening statement to the jury made by plaintiffs’ counsel, constitutes a telling and definitive revelation that plaintiffs’ theory of recovery was an action of trover for conversion of the sign: “Based upon these facts and other evidence, we will expect to prove to you, or show you, that the taking of the sign was malicious and based upon this we will ask you to bring in a penalty for the Coca-Cola Company . . . ”. (Emphasis added.) Suffice it to say, the evidence adduced at the trial did not broaden or amend the pleadings and the case was submitted to the jury on a theory of conversion of the Coca-Cola sign.

Having concluded that plaintiffs’ theory of recovery below was limited to an action of trover for conversion of the Coca-Cola sign, all to the exclusion of any present claim or argument that trespass to realty was conjunctively pleaded and advanced as a viable theory of recovery, attention now focuses on whether plaintiffs made a submissible case under their pleaded theory. In determining whether plaintiffs made a submissible case, the evidence must be viewed in the light most favorable to them and defendant’s evidence, except as it aided plaintiffs, must be disregarded. Citizens Bank of Festus v. Missouri Natural Gas Co., 314 S.W.2d 709, 710 (Mo.1958); and Fenneren v. Smith, 316 S.W.2d 602, 606 (Mo.1958).

The Coca-Cola sign in question was bought, paid for, owned and maintained by defendant. At plaintiffs’ request and defendant’s expense it was erected on the roof area over certain premises housing a “malt shop” occupied and operated by plaintiffs in a suburban shopping center complex which was owned by a third party. Plaintiffs understood that the Coca-Cola sign would cease to be available to advertise and beckon customers to the “malt shop” if and when they terminated the use of Coca-Cola products. Plaintiffs terminated their use of Coca-Cola products and defendant removed its Coca-Cola sign from the roof of that portion of the premises in the suburban shopping center complex occupied by plaintiffs in the operation of their “malt shop”.

Kessler v. Reed, 481 S.W.2d 559, 562 (Mo.App.1972), holds that in order to maintain an action of trover the plaintiff must have “title to, or a right of property in, and a right to the immediate possession of the property concerned at the time of the alleged conversion”. See also: Twellman v. Lindell Trust Co., 534 S.W.2d 83, 97 (Mo. App.1976); National Surety Corporation v. Hochman, 313 S.W.2d 776, 780 (Mo.App. 1958); and Jackson v. Rothschild, 99 S.W.2d 859, 861 (Mo.App.1936), In the instant ease plaintiffs had neither the requisite property interest in the Coca-Cola sign nor a right to its immediate possession at the time of its removal by defendant, both of which were necessary to make a submissible case under their singularly pleaded and advanced theory of conversion. Plaintiffs argue that they had some type of “special interest” in the Coca-Cola sign at the time of its removal. They have not denominated the vague and nebulous “special interest” claimed by them in the Coca-Cola sign to be a legal interest, as contradistinguished from a mere equitable interest. Nor have plaintiffs claimed or pointed to the existence of any evidence which would elevate the vague and nebulous “special interest” claimed by them in the Coca-Cola sign from merely an equitable interest to a legal interest, if in fact they had even an equitable interest. Authority exists for the proposition that there must be a conversion of a legal as opposed to a mere equitable interest in property in order to maintain an action of trover for its conversion. Sustenance for this proposition is found in Osborn v. Chandeysson Electric Co., 248 S.W.2d 657, 663 (Mo.1952): “To maintain trover, it has been considered that plaintiff must have title to, or a right of property in and a right to the immediate possession of, the stock at the time of conversion, and ‘there must be an invasion of a legal, as contradistinguished from an equitable right.’ 11 Fletcher, Private Corporations, p. 149, § 5114, nn. 97, 98; Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 518, 529, 75 S.W. 445, 448, 97 Am.St.Rep. 609.”

When the principles enunciated above are viewed anent the evidence in the case at bar in the light most favorable to plaintiffs, this court is constrained to hold that plaintiffs failed to make a submissible case under their pleaded theory of trover for defendant’s alleged conversion of the Coca-Cola sign in question. Ergo, the seven specific instances of trial error relied upon by plaintiffs on appeal are dissipated of any decisional relevance or vitality and the jury verdict and judgment entered below in favor of defendant and against plaintiffs must stand.

Judgment affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Joseph FONG, Plaintiff-Appellant, v. Aurora SUN, Defendant-Respondent.
    No. 10592.
    Missouri Court of Appeals, Springfield District, Division Two.
    Oct. 2, 1978.
    Donald R. Duncan, Turner, Reid & Duncan, Springfield, for plaintiff-appellant.
    David R. Fielder, Hamra & Fielder, Springfield, for defendant-respondent.
   BILLINGS, Chief Judge.

In a multiple-count petition Joseph Fong sought cancellation of a partnership agreement with Aurora Sun. The subject of the partnership was a Chinese food service business named the Dragon Inn in Springfield, Missouri. Contrary to Fong’s averments that the terms of the partnership agreement were unconscionable, the Greene County Circuit Court found otherwise and entered judgment for Sun. We affirm.

We have read the transcript, reviewed the exhibits, read the briefs of the parties, and heard oral argument. We conclude the judgment of the experienced trial court is supported by substantial evidence and is not against the weight of the evidence. Further, no error of law appears.

Under the standard of review enunciated in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976), we affirm the judgment pursuant to Rule 84.16(b), V.A.M.R.

An opinion would have no precedential value.

HOGAN, J., not participating.

YEAMAN and RAGLAND, Special Judges, concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Wilfred JONES, Defendant-Appellant.
    No. 37941.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.
    Robert C. Babione, Public Defender, Mary Louise Moran, Walter H. Sheata, James Whitney, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of stealing $50 or over and his sentence of seven years by the trial court pursuant to the second offender act. We affirm.

The evidence established that defendant stole four leisure suits from Famous-Barr Company and that those suits had a combined value considerably in excess of $50. On appeal defendant raises a single contention — that the trial court erroneously allowed the admission into evidence of a Xerox copy of an invoice to establish value of the stolen merchandise. It is contended that this was erroneous for two reasons: (1) the prosecution failed to qualify the document under the Uniform Business Records as Evidence Act, § 490.680, RSMo 1969 and (2) the copy was not the best evidence.

The first contention was not raised by objection at trial or in the motion for new trial and so was not preserved for appellate review. It is particularly important that where an inadequate foundation has been laid for admission of evidence that the objection made be specific as such foundation deficiencies can frequently be remedied. We will not review the contention of inadequate foundation raised for the first time on appeal.

The defendant’s second contention lacks support in fact. The trial court has wide discretion in the admission of secondary evidence. State v. Stephens, 556 S.W.2d 722[2, 3] (Mo.App.1977). There was testimony here that the original invoice could not be found and that the Xerox copy was an exact copy of the original. This was a sufficient basis for the admission of the copy. State v. Stephens, supra.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    Reginald MORGAN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39950.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.

      Leonard W. Buckley, Jr., St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Appellant, Reginald Morgan, appeals from an order of the circuit court of the City of St. Louis denying, without an evi-dentiary hearing, his Rule 27.26, V.A.M.R., motion to vacate appellant’s sentences and judgment entered August 21, 1975, on appellant’s pleas of guilty. After a long, thorough hearing, wherein the prosecutor, defense counsel and appellant were present, appellant pled guilty to the following charges — Cause No. 75-555, Count I, attempted armed robbery and Count II, carrying a concealed weapon; Cause No. 75-607: robbery first degree; and Cause No. 75-608: attempted robbery first degree. The trial court rendered the following sentences: Ten (10) years imprisonment for attempted armed robbery (Count I); five (5) years imprisonment for carrying a concealed weapon (Count II); sentence on Count I to run consecutively with sentence on Count II for a total of fifteen (15) years; fifteen (15) years for armed robbery; and ten (10) years for attempted armed robbery, both sentences to run concurrently with the sentences imposed on Counts I and II for an aggregate of fifteen (15) years imprisonment.

In his Rule 27.26 motion appellant alleges that he was promised a sentence of not more than twelve (12) years and that his attorney told him to lie if questioned about any promises made during the plea bargaining process. Thereafter, the trial court entered the following order:

“after consideration of the Motion, Records and Files in Movant’s causes, especially the transcript of his pleas of guilty, motion to vacate denied on the ground movant is entitled to no relief. . . . ”

For reversal appellant argues the trial court erred in denying appellant’s motion without an evidentiary hearing because the question of the voluntariness of the guilty pleas due to promises made to appellant was not refuted by the record and (2) in failing to make findings of fact and conclusions of law, Rule 27.26(i), V.A.M.R. For the reasons hereinafter given, we reject both allegations of error now asserted by appellant.

In consideration of appellant’s second claim, neither citation to Brown v. State, 436 S.W.2d 724 (Mo.1969), nor Baker v. State, 532 S.W.2d 897 (Mo.App.1976), is apposite. In both Brown and Baker eviden-tiary hearings were held and both cases were reversed because the evidentiary hearings were not sufficient to permit the mov-ants to properly perfect their appeals.

The instant case is ruled by Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) cert, den., 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), and Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974). In Hogshooter, paraphrasing from Smith, the court stated that the summary denial of movant’s motion was equivalent to findings of fact and conclusions of law in opposition to the grounds set out in his motion. See also Stout v. State, 543 S.W.2d 797, 798 (Mo. App.1976), where court held that the denial of movant’s motion was equivalent to findings and conclusions opposed to grounds stated in movant’s motion; and if the court was correct in its conclusion, its order was sufficient. Id. at 799. Consequently, we rule this contention against appellant.

Appellant’s first claim raises the question of the voluntariness of the guilty pleas. In Mainord v. State, 541 S.W.2d 779 (Mo.App.1976), we were confronted with a similar case where the movant alleged that his attorney had told movant to lie when asked if any promises had been made. We held in Mainord that such fact, even if proven, would not entitle the movant to relief because the statements made by the movant in answer to the court’s questions and the court’s statements made to the movant adequately advised the appellant that any and all deals were no longer effective. Id. at 781.

Here, appellant was sworn, his counsel present before the court interrogated him and the trial court accepted his pleas of guilty. Thirty-two pages were used to transcribe appellant’s guilty plea. Even a cursory reading of the transcript of the guilty plea proceeding shows that the court by its questions and statements scrupulously guarded all of appellant’s rights. Appellant’s answers to the court’s questions clearly indicate that his guilty pleas were intelligently and voluntarily made and that he knew the full consequences of pleading guilty. So, we hold that it was proper for the court to deny appellant’s motion because the guilty plea hearings supported the finding that appellant’s pleas were freely and voluntarily given and knowingly made and that appellant knew all of the legal consequences of his pleas, and because the allegations made in appellant’s motion were fully refuted by the record. E. g., Parsons v. State, 528 S.W.2d 162 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    Marian CARAY, Petitioner-Appellant, v. Harry CARAY, Respondent.
    No. 39353.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 20, 1978.
    Motion for Rehearing and/or Transfer Denied July 14, 1978.

      Friedman & Fredericks, Henry J. Freder-icks, Clayton, for petitioner-appellant.
    Rosecan, Kimbrell & Witzel, Alan G. Kimbrell, St. Louis, for respondent.
   McMILLIAN, Judge.

Appellant Marian Caray appeals from a decree entered by the circuit court of St. Louis County increasing the child support award in the decree of dissolution by $30.00 per month. For reversal appellant argues that the trial court erred in (1) awarding an increase of only $30.00 per month in view of the needs of the child and respondent’s ability to pay and (2) failing to recognize that the child of divorced parents becomes a ward of the court and that the best interest and welfare of the child is superior and the responsibility of the court. For the reasons discussed below, we affirm the judgment of the trial court.

Appellant and respondent Harry Caray were divorced on April 3, 1974. Appellant received custody of the couple’s two minor children, Michelle and Elizabeth, age seventeen and thirteen, respectively, at the time of the divorce. Appellant received the unencumbered family home, some real property and a substantial cash settlement in lieu of maintenance, and was awarded $375.00 per month for child support. Michelle has since reached the age of twenty-one and respondent no longer pays child support for her.

Appellant subsequently became dissatisfied with these arrangements and filed a motion to modify the decree of dissolution, alleging therein that Elizabeth’s living expenses have greatly increased above the original award of $375.00 per month, that appellant does not have the means to meet these expenses and that respondent is able to increase his child support payments. At the hearing on February 17,1977, appellant testified that Elizabeth’s monthly living expenses approximated $1470.00 and appellant’s account book which detailed these expenses was introduced into evidence. Respondent did not testify at the hearing. On February 18, 1977, the trial court entered its order sustaining appellant’s motion to modify and increasing the child support award by $30.00 per month, to a total of $405.00 per month.

First, appellant argues that the trial court erred in awarding such a small increase. Appellant contends this amount is inadequate, bears no relation to the child’s greatly increased living expenses or respondent’s ability to pay, but instead concedes it represents an amount equal to a cost-of-living increase. Appellant further notes that a year of child support payments at this increased level is less than five and one-half percent of respondent’s income for 1976.

Respondent, however, argues that there was no evidence to support a finding of changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. See § 452.-370(1) RSMo Supp 1975. Under this section the burden is upon the movant, appellant here, to prove the “changed circumstances” that would warrant a modification. E. g., Sifers v. Sifers, 544 S.W.2d 269 (Mo.App. 1976). The modification standards established by this statute were intended to discourage repeated or insubstantial motions for such relief by requiring the change of circumstances be of a “fixed and continuing nature and not the experience of a random year.” Seelig v. Seelig, 540 S.W.2d 142,146 (Mo.App.1976); see also Plattner v. Plattner, No. 38826, 567 S.W.2d 139 at 142 (Mo. App. 5/23/78) (slip op. at 3). Even assuming appellant did satisfy her burden of proof, respondent argues that appellant has clearly failed to establish that the trial court abused its discretion in not awarding a greater increase in child support.

Respondent’s ability to pay increased child support is not in dispute. Respondent’s answers to interrogatories and a current financial statement indicate respondent’s comfortable, if not affluent, financial condition. Respondent’s income for the years 1974-1976 averaged roughly $82,000 per year. Respondent has substantial investments in securities and insurance. Respondent has remarried since the divorce.

Our review is limited by the standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976): the decree or judgment of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or unless it erroneously applies the law. Although we review both the law and the evidence, we defer to the opportunity of the trial court to have judged the credibility of the witnesses. Rule 73.01(3)(a), (b) V.A. M.R.; e. g., In re Marriage of Engelhardt, 552 S.W.2d 356 (Mo.App.1977). Moreover, we will not reverse the trial court’s determination of the amount of child support in the absence of a finding of abuse of discretion. See Plattner v. Plattner, supra (at 142); Naeger v. Naeger, 542 S.W.2d 344, 347 (Mo.App.1976); Fugate v. Fugate, 510 S.W.2d 705, 707 (Mo.App.1974); cf. E.C.S. v. J.D.L., 529 S.W.2d 423 (Mo.App.1975) (modification of custody provisions).

After careful review of the record, we conclude there was evidence which supported a finding of changed conditions. Appellant testified and introduced evidence in the form of her account book of Elizabeth’s increased expenses, especially for clothes, entertainment and education. At the time of the dissolution decree Elizabeth was thirteen; she is now almost seventeen. By our own calculations, Elizabeth’s personal expenses, excluding any proportion of the household expenses, were approximately $300 per month in 1976; including a reasonable share of household expenses, her monthly expenses for 1976 are roughly $600. “Courts know judicially that parents attempting to rear children have been harassed by spiraling inflation and there was evidence that the [child has] now become adolescent and the [her] needs have increased.” Morris v. Morris, 549 S.W.2d 363, 365 (Mo.App.1977), citing Jackman v. Jackman, 533 S.W.2d 361, 363-64 (Tex.Civ.App. 1975). This evidence was sufficient to support a modification of the child support award. See In re Marriage of Engelhardt, supra at 358; Walter v. Walter, 544 S.W.2d 271, 273 (Mo.App.1976); McGinley v. McGinley, 513 S.W.2d 471 (Mo.App.1974); Smolly v. Hoffman, 458 S.W.2d 579 (Mo.App.1970).

We distinguish the Plattner case in which the court held that the custodial parent failed to meet her burden of showing changed circumstances so substantial and continuing as to make the terms of the dissolution decree unreasonable, (at 142). The movant in Plattner relied almost exclusively on the general proposition of the increased needs of growing children and the effect of inflation. Unlike the present case, there was “no evidence to show that the terms of the original decree were insufficient to provide for the present needs of the [child].” (Slip op. at 142).

Second, appellant argues that the trial court erred in failing to recognize that the child of divorced parents becomes a ward of the court and that the best interests and welfare of the child is superior and the responsibility of the “new parent,” the court. The standard incorporated in this argument is that used in considering the modification of child custody decrees and not in the modification of child support allowances. See § 452.410 RSMo Supp 1975; e. g., L.W. v. G.W., 534 S.W.2d 826 (Mo.App. 1976). The guide in determining the amount of child support is basically the welfare of the child, see Smith v. Smith, 558 S.W.2d 785, 788 (Mo.App.1977), but all other relevant factors must be included, especially the financial resources of the father. See § 452.340 RSMo Supp 1975. We cannot agree that the trial court failed to consider the best interests and welfare of the child.

Appellant also argues that the trial court lost sight of its responsibility for the child when confronted with the celebrity status of respondent. Respondent is a well-known radio and television sports broadcaster and the trial court asked him several questions about the baseball season. Although we caution the trial court against making personal conversation from the Bench with one of the parties, we cannot agree that this conversation caused the trial court to in any way ignore its responsibility.

Decree affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . Appellant kept a record of the monthly expenses for herself and her two daughters. She totalled the bills and then divided the total by three. By this method Elizabeth’s share of the living expenses for 1976 was $13,341, which did not include medical, dental or educational expenses. Appellant testified that the $375.00 monthly payment was not only used for Elizabeth but also for her older daughter, Michelle, who was living at home. Appellant further testified that the original child support award was inadequate because the cost of “everything has gone up.” Thus, the basis for appellant’s motion to modify was as much the increase in the cost of living as the greater living expenses of a teenage daughter

      . This includes utilities, general expenses and house repairs but does not include various large amounts for furniture, carpeting and remodeling.

      .
      Judge: How do you think the White Sox will do this year, Harry?
      Respondent: I think they are going to do better.
      Judge: Let’s hope so. When are you starting spring training?
      Respondent: I am going down to Florida March 1st.
      Judge: What do you think of Vern Rapp?
      Respondent: I think he is going to be all right.
      Judge: I think so, too. Say hello to Jack Her-mann for me.
      Respondent: I sure will. Thank you. Your Honor.
      Judge: Would you gentlemen leave a memorandum indicating that this matter has been submitted and heard before me.
      Mr. Kimbell: Yes, Your Honor.
      Mr. Fredericks: Yes, Your Honor.


text:
    Harry Don PHELPS and Melba Phelps, Plaintiffs-Appellants, y. Danny Ray PARKER, Defendant-Respondent.
    No. 10334.
    Missouri Court of Appeals, Springfield District.
    June 27, 1978.
    Motion for Rehearing or to Transfer Denied July 14, 1978.
    Elroy Thomas, Michael D. Talley, Thomas & Talley, Joplin, for plaintiffs-appellants.
    Karl W. Blanchard, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendant-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

A jury found against plaintiffs (husband and wife) on their petition for damages and against defendant on his counterclaim for damages. Plaintiffs have appealed, assigning error in an instruction given at the request of defendant. We affirm.

Plaintiff Harry Phelps was the driver of a vehicle which was involved in a collision with an automobile driven by defendant. The collision occurred in Jasper County, Missouri, at the intersection of Duquesne Road, running north-south, and 32nd Street, an east-west road. Duquesne, from the north, forms a trident intersection at 32nd Street, with a stop sign located just off the west edge of Duquesne Road about 100 feet north of 32nd Street, at the point of trifur-cation.

Phelps was traveling south on Duquesne at 35 to 40 miles per hour. Approaching the stop sign at the intersection with 32nd Street, he saw the top of defendant’s car coming from the west on the access road off 32nd Street. Defendant was making a left turn onto Duquesne. Realizing an imminent collision, plaintiff made an emergency application of his brakes. Plaintiff testified that he skidded after applying his brakes but stopped at the stop sign. The ensuing collision damaged the left front of plaintiffs’ van, while defendant’s vehicle was damaged at the left rear door.

The testimony of the investigating officer, controverted by plaintiff, placed the site of the collision 4½ feet beyond the stop sign. The officer said plaintiff left skid marks 40 feet long and that the marks indicated plaintiff was on the wrong side of the road, to the left of the center of Du-quesne Road. He further testified that, defendant in using the west access road to make a left turn, made an improper turn.

Plaintiffs submitted their case on the negligence of defendant by driving in the wrong lane and making an improper left turn. Defendant presented his affirmative defense of plaintiff’s contributory negligence for failing to stop at the stop sign and driving on the wrong side of the road.

In this appeal, plaintiffs claim the court erred in giving Instruction No. 4 to the jury. That instruction, offered by defendant as a modification of MAI, reads as follows:

“Your verdict must be for defendant on the claims of Harry Don Phelps and Melba Phelps for damages, whether or not defendant was negligent, if you believe:
“First, plaintiff Harry Don Phelps either: failed to stop at the stop sign, or plaintiff’s automobile was on the wrong side of the road at the time of the collision; and
“Second, plaintiff Harry Don Phelps was thereby negligent; and
“Third, such negligence of plaintiff Harry Don Phelps directly caused or directly contributed to cause any damages the plaintiffs may have sustained.” (Emphasis added).

Plaintiffs argue that the italicized portion of the instruction, which was substituted for “violated”, deviated substantially from MAI and submitted evidentiary facts rather than the ultimate issue.

Instructions to the jury are governed by Rule 70.02, and “ . . . giving of an instruction in violation of the provisions of this Rule shall constitute error . ” Rule 70.02(c). A change made to an applicable instruction is presumed to be prejudicial error. Brittain v. Clark, 462 S.W.2d 153 (Mo.App. 1970). Modifications of MAI, however, are permitted in order to “fairly submit the issues in a particular case .” and “. . . shall be simple, brief, impartial, free from argument, and shall not submit ... or require findings of detailed evidentiary facts.” Rule 70.02(e). Under this Rule, conceded or undisputed facts may not be included in a modified MAI. Brittain v. Clark, supra.

Plaintiffs, citing § 304.351(4)(l)(a) V.A.M.S., contend that the failure to stop at a stop sign is only one of several evidentia-ry facts necessary to determine if plaintiff Harry Phelps violated the stop sign. The other factors, asserted by plaintiffs, are not applicable to this case, since the absence of a stop line or crosswalk was undisputed and plaintiff testified he saw defendant’s car approaching on the access road before he reached the stop sign and he stopped at the stop sign. Instruction No. 4 merely defines the term “violated” and removes the inapplicable factors from consideration. It clearly and fairly submits the issue of the case and does not erroneously modify MAI 17.01.

The judgment is affirmed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Orlen HELT, Appellant.
    No. 39317.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Ralph A. Dobberstein, Asst. Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Charles H. Mostov, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

The trial court found defendant Orlen Helt guilty of a warehouse burglary and sentenced him to six years’ imprisonment. He has appealed, challenging the sufficiency of the evidence.

Responding to an early-morning burglar alarm, police found defendant coming out of a burglarized warehouse onto a loading dock. He jumped down into an alley, ran, and failed to halt on police command. Defendant was arrested, tried and found guilty.

Both defendant and the state rely on the same two cases. In State v. Burke, 462 S.W.2d 701[l-2] (Mo.1971), police found defendant on the roof of a shed within three feet of the burglarized building. The court acknowledged (as the state here concedes) that defendant’s presence at the burglary scene, and his opportunity to have committed the burglary, were insufficient to prove guilt. The Burke court affirmed the conviction, however, because further evidence showed defendant was found hiding close to an opened window.

Similarly, in State v. Mason, 506 S.W.2d 458[1, 3-5] (Mo.App.1974), patrolling police saw defendant coming out of a burglarized store and he ran when the police car appeared. On appeal, we acknowledged that presence and flight alone are insufficient to warrant a burglary conviction, but guilt was upheld on the strength of further evidence defendant was seen at an early hour coming out the door of the burglarized store.

As said, defendant contends evidence of presence, opportunity and flight are insufficient to show guilt. But, as implied in Burke and held in Mason, those factors make a submissible case when coupled with further evidence that defendant, as here, came out of the burglarized building.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Tyrone HAMILTON, Appellant.
    No. 39475.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1978.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
    Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant Tyrone Hamilton guilty of first degree robbery and the court sentenced him to 20 years’ imprisonment under the Habitual Criminal Act, § 556.280, RSMo., 1969.

On appeal defendant challenges the admission of testimony regarding his arrest. He contends this was improperly admitted since the challenged testimony was evidence of another crime. While police were looking for defendant in connection with another offense they found him hiding in a closet. The court excluded testimony of the reason police were looking for defendant but admitted police testimony that he had been found in hiding.

As to the robbery charge, on trial the state’s evidence showed that on May 18, 1976 defendant, a passenger in a cab driven by Robert McGuire, flashed a gun and demanded the driver’s money. McGuire testified he was carrying two six-dollar checks he had received from a regular passenger and $54 in cash, all of which he have to defendant. The next day McGuire was called to the police station where he identified defendant as the robber. Defendant does not challenge the sufficiency of the evidence.

As to defendant’s arrest, Detective Og-born testified that on May 19,1976 he went to 2530 Sullivan Avenue in St. Louis looking for defendant in connection with another offense. When he searched the house he found defendant “crouched in a closet.” He arrested defendant and took him to the police station where a search was made and two checks were found which had been taken from Mr. McGuire.

Before trial the police officer’s proposed testimony was discussed with the court in chambers. The prosecutor revealed that Detective Ogborn would testify he heard a radio description of a man wanted for an attempted robbery, but not the one now charged. He had seen defendant, who matched the suspect’s description, on the porch at 2530 Sullivan Avenue. The court did not allow the admission of this testimony because it would be evidence of a separate crime; the court did, however, admit police testimony that defendant was found hiding in a closet.

Circumstances surrounding defendant’s arrest are relevant and admissible when they tend to establish an attempt by the defendant to resist, evade, escape or avoid arrest. State v. Campbell, 533 S.W.2d 671[1] (Mo.App.1976). Evidence of the place of arrest is relevant when it indicates that defendant has fled, or has hidden himself, as he did in the present case. Inasmuch as both flight and concealment are attempts to avoid arrest, the principles applicable to flight are equally applicable to concealment. See State v. Moore, 546 S.W.2d 10[6 — 7] (Mo.App.1976), and State v. Cochran, 366 S.W.2d 360[3, 4] (Mo.1963) upholding admission of evidence that defendant when arrested was, as here, hiding in a closet. We hold the testimony about the circumstances of defendant’s arrest were admissible as being relevant to show his attempt to avoid arrest.

The trial court noted that a hiatus results from Detective Ogborn’s offered testimony that he went to the Sullivan address looking for defendant in connection with another crime, found defendant hiding, and placed him under arrest. The jury might have inferred defendant was sought and arrested there on the charge for which he was being tried when he was actually sought and arrested for a prior offense. We find that possible inference, though wrong, to be less prejudicial to defendant than the full account of the reason for his arrest. The only way of avoiding such an impression would be to allow evidence of the separate and distinct crime or to omit all facts prior to the discovery of defendant crouched in the closet. The fact that police were initially looking for defendant to arrest him for another crime was kept from the jury. There was no evidence defendant had committed a separate offense nor does the impression left with the jury as a result of the police officer’s testimony imply that a separate and distinct offense had been committed. Defendant’s point is denied.

The state argues that the circumstances surrounding defendant’s arrest were admissible because they were relevant and constituted one continuous, interrelated transaction. We reject the state’s argument. Though the arrest of defendant for attempted robbery was the “precipitating factor” leading to his arrest for robbery because evidence of the latter crime was discovered upon defendant’s arrest for the former one, the actual commission of the first crime was not intertwined with the second one.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Lester Edward CARTER, Defendant-Appellant.
    No. 10731.
    Missouri Court of Appeals, Springfield District.
    July 17, 1978.

      John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for defendant-appellant.
    Philip R. Pruett, Joslyn, Joslyn, Vaughan & Pruett, Charleston, for plaintiff-respondent.
   PER CURIAM.

On June 10,1977, defendant’s pro se “Petition for Writ of Mandamus” was filed in this court. Said petition stated that defendant had inquired on September 14, 1976, about the status of his appeal by directing a letter to the circuit clerk of Mississippi County, Missouri. The date of the letter was, the sole date mentioned in the application for mandamus. On June 13, 1977, this court denied the petition for writ of mandamus. However, the petition was treated as an application for leave to file notice of appeal out of time. V.A.M.R. 28.07.

The transcript on appeal shows that defendant was sentenced on September 9, 1975, to a term of twenty-five years for the crime of second-degree murder. Armed with the transcribed particulars of the case, it is apparent that this court had no jurisdiction to enter its order allowing the filing of a late notice of appeal because more than twelve months had passed between the entry of judgment and issuance of the aforesaid order. Furthermore, this court cannot suspend the time limitations of Rule 28.07 to defendant’s benefit because the statutes (§§ 512.050 and 512.060) would then control what could be done as to the extension of time to file a late notice of appeal and the statutory time limit is more restrictive than the rules. State v. Lindner, 498 S.W.2d 754, 756 (Mo.banc 1973).

The appeal must be, and hereby is, dismissed.

All concur.


author: BARROW, Justice.

text:
    James D. ROBINSON, Petitioner, v. The RELIABLE LIFE INSURANCE COMPANY, Respondent.
    No. B-7059.
    Supreme Court of Texas.
    March 8, 1978.
    Roger Turner, Dallas, for petitioner.
    Elliott, Churchill, Hansen, Dyess & Max-field, Gary W. Maxfield and William A. Forteith, Dallas, for respondent.
   BARROW, Justice.

The question on this appeal is whether an insurer, in order to avoid liability on a policy of life insurance on the ground of false representations in the application for insurance, must establish both that the misrepresentation was material to the risk undertaken by the insurer and that the condition about which the .misrepresentation was made contributed to the death of the insured. The court of civil appeals held that under Texas Insurance Code article 21.16 a finding that the misrepresentation was material to the risk is sufficient ground for avoiding the policy without proof that the condition misrepresented contributed to the event which caused the loss. 554 S.W.2d 231. We agree with this construction and affirm the judgments of the lower courts.

This suit was filed by the beneficiary to recover the sum of $2,000.00 payable on the death of his natural son. The insurer denied liability and counterclaimed for cancellation of the policy on the ground of false representations in the application for the policy. The trial court, after a non-jury trial, denied liability and filed findings of fact to the effect that the application contained negative answers to questions inquiring whether the insured had been treated by a doctor within the past five years, whether the insured had any injury, illness or operation in the past five years, and whether the insured had ever been confined to a hospital or sanitorium. The trial court found that each of these statements was false, that each was material to the risk assumed by the insurer, that each was relied on by the insurer in issuing the policy, that the policy would not have been issued but for such statements, and that the insurer did not discover the true facts until shortly after the death of the insured. No complaint has been made of these findings. They were based on evidence that the insured had been afflicted with sickle cell anemia for several years prior to his death. He was under treatment by a doctor and hospitalized for about two weeks for intestinal hemorrhaging and sickle cell anemia less than two years before the application was submitted to the insurer. The only evidence as to the cause of death of the insured is the following statement in the death certificate: “There were no marks on body that indicate violence, apparently died from natural causes.” The uncontroverted evidence is that a prudent insurer would not have issued a policy on the life of a young boy afflicted with sickle .cell anemia.

Petitioner urges that in order to set aside a life insurance policy because of a misrepresentation in the application, the insurer must show that the misrepresented fact actually contributed to the insured’s death. The question turns on the construction of a statute, originally enacted in 1903 and now appearing as Texas Insurance Code article 21.16, which provides:

Any provision in any contract or policy of insurance issued or contracted for in this State which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case. (Emphasis added)

Petitioner contends that the word “or” emphasized above should be read as “and” so that the condition misrepresented in the application cannot be considered as grounds for avoidance of the policy unless the condition was actually a cause of the loss insured against. Such a construction has been adopted by implication in several cases although no case has directly so held. See Southern Life and Health Ins. Co. v. Grafton, 414 S.W.2d 214, (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.); Trinity Reserve Life Ins. Co. v. Hicks, 297 S.W.2d 345 (Tex. Civ.App.—Dallas 1956, no writ); National Life and Accident Ins. Co. v. Dickinson, 115 S.W.2d 1180 (Tex.Civ.App.—El Paso 1938, writ dism’d); First Texas Prudential Ins. Co. v. Pipes, 56 S.W.2d 203 (Tex.Civ.App.—El Paso 1933, writ dism’d).

On the other hand, there is a line of cases supporting the respondent’s contention that under Article 21.16 the materiality of the risk must be viewed as of the time of the issuance of the policy, rather than at the time the loss occurred, and that the principal inquiry in determining materiality is whether the insurer would have accepted the risk if the true facts had been disclosed. These cases recognize the concept that a condition material to the risk assumed by the insurer is quite distinct from the cause of the loss. See Fidelity Union Fire Insurance Co. v. Pruitt, 23 S.W.2d 681 (Tex.Com. App. —1930, holding approved); Jackson v. National Life and Accident Ins. Co., 161 S.W.2d 536 (Tex.Civ.App. — Dallas 1942, writ ref’d w. o. m.); Aetna Life Ins. Co. v. Shipley, 134 S.W.2d 342 (Tex.Civ.App.— Port Worth 1939, writ dism’d); Indiana and Ohio Live Stock Ins. Co. v. Smith, 157 S.W. 755 (Tex.Civ.App.—Austin 1913, writ ref’d); United Benevolent Ass’n v. Baker, 141 S.W. 541 (Tex.Civ.App.—Texarkana 1911, writ dism’d). See also Note, Insurance: Fraud Necessary to Avoid Life Insurance Policy, 11 Baylor L.Rev. 236 (1959); 7 Couch on Insurance § 35:45—47 (2d ed.); 12 Appleman, Insurance Law and Practice § 7294 (1943 & Supp.1977).

The United States Court of Appeals for the Fifth Circuit has adopted the same construction in cases involving Article 21.16. See Bettes v. Stonewall Ins. Co., 480 F.2d 92 (5 Cir. 1973); Fireman’s Fund Insurance Co. v. Wilburn Boat Co., 300 F.2d 631 (5 Cir. 1962) cert, denied, 370 U.S. 925, 82 S.Ct. 1562, 8 L.Ed.2d 505 (1962). These cases directly address the question raised by petitioner and expressly hold that the “or” in the statute is disjunctive rather than conjunctive. In Wilburn Boat Co., the court points out that a contrary construction would leave the requirement of materiality without meaning because any fact contributing to the loss would necessarily be material to the risk. It would not be true, however, that a fact material to the risk would also necessarily contribute to the loss.

Petitioner urges that the word “or” is frequently misused and that we should substitute the word “and” for “or” in this statute. While there may be circumstances which call for such a construction, ordinarily the words “and” and “or” are not interchangeable. In Board of Insurance Comm, v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906 (1944), this Court adopted the following language from 3 C.J.S. And 1068 (now 3A C.J.S. 452-453) in stating the rule for interpreting “and” to mean “or”:

This construction ... is never resorted to except for strong reasons and the words should never be so construed unless the context favors the conversion; as where it must be done in order to effectuate the manifest intention of the user; and where not to do so would render the meaning ambiguous, or result in an absurdity; or would be tantamount to a refusal to correct a mistake.

See also Bayou Pipeline Corp. v. Railroad Commission of Texas, et aL, 568 S.W.2d 122 (Tex.1978).

Petitioner has not demonstrated that substituting “and” for “or” in the statute is necessary to effectuate the Legislature’s intent or to prevent an ambiguity, absurdity, or mistake. To the contrary, as pointed out by the court in Wilburn Boat Co. such a construction would actually do violence to the statute by rendering part of it meaningless.

We hold that under Article 21.16 the materiality to the risk must be viewed as of the time of the issuance of the policy, rather than at the time the loss occurred.

Petitioner’s contention that the policy should not be canceled because the insured did not sign the application is without merit. The evidence established that the beneficiary, rather than his sixteen year old son, dealt with the agent of the insurer, paid the premiums, and accepted delivery of the policy with a copy of the application attached thereto. Under these circumstances, the petitioner must be held to have ratified any false statements in the application. Odom v. Insurance Co. of State of Pennsylvania, 455 S.W.2d 195 (Tex.1970).

Here, the trial court found from the evidence adduced at the trial that the application contained false answers regarding the insured’s prior medical history and that such false statements were material to the risk in that the policy would not have been issued but for such statements. No question of waiver or estoppel being presented, the trial court properly entered judgment under Article 21.16 canceling the policy and ordering the premiums returned to petitioner.

The judgments of the courts below are affirmed.

      . The policy was only in effect about seven months and therefore had not become incontestable. See article 21.35, Texas Insurance Code.

      . None of these cases actually held that the two requirements are conjunctive, but rather seem to confuse the two requirements by assuming that a representation is not material to the risk if it does not contribute to the loss.


author: CLAYTON, Justice.

text:
    Thomas Lee RINGO, Appellant, v. GULF STATES UTILITIES COMPANY, Appellee.
    No. 8115.
    Court of Civil Appeals of Texas, Beaumont.
    May 18, 1978.
    Rehearing Denied June 8, 1978.

      Waldman & Smallwood, Beaumont, for appellant.
    Larry L. Germer, Beaumont, for appellee.
   CLAYTON, Justice.

Plaintiff below, Thomas Lee Ringo, filed this suit against Gulf States Utilities Company, for personal injuries resulting from various acts of negligence.

On January 31, 1975, plaintiff (then sixteen years of age) was working in the course and scope of his employment with Sparks Industrial Service, Inc., at his employer’s place of business when he was caused to suffer a severe electrical shock and resulting injuries to his body.

Plaintiff was engaged in cleaning and painting railroad cars for his employer, and, in order to gain access to the inside of the railroad cars, he had to put a ladder into the opening on top of said cars. He lifted an aluminum ladder to fit it into the opening at the top of the car, and the ladder came near or into contact with an uninsulated electrical wire which had been strung by Gulf States across the lot on which plaintiff was working.

Defendant Gulf States filed a general denial and thereafter filed a third party action against plaintiffs employer, Sparks Industrial Service, Inc., and a cross action against plaintiff. The trial court granted defendant’s motion for summary judgment, and from this judgment plaintiff appeals.

By deposition testimony it is shown that upon the premises occupied by plaintiff’s employer, Sparks, a line of railroad tracks was extended in the latter part of 1974, and several months later a new line was built parallel to this track. Sparks, the owner, was aware that the extension of the existing line would cause the tracks to go under high voltage electric lines. Because this work was contemplated, Sparks called Gulf States and had them raise the line over the first track that was extended. The line was raised in response to his request. At the time this request was made of Gulf States, Sparks did not know that he was to build the second track, and the second track was never mentioned to Gulf States. The injury to plaintiff occurred while working on the boxcar on this new track.

The question before this court is whether or not the summary judgment proof establishes as a matter of law that there is no genuine issue as to any material fact. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Smith v. Ortman-McCain Go., 537 S.W.2d 515, 518 (Tex.Civ. App.—Austin 1976, writ ref’d n.r.e.).

Plaintiff contends that a material fact issue is presented as to whether defendant breached a statutory duty by placing its power line below the required height. According to plaintiff’s brief, Tex. Rev.Civ.Stat.Ann. art. 1436a, § 1 (Supp. 1978) requires the height of the lines, for the voltage involved here, to be twenty-eight feet. This height requirement is not challenged by defendant. In the record is an undated chart entitled “Clearance Check 4-W Primary Service,” which lists various heights for the wires crossing over the railroad tracks here involved. This chart shows that at several points over the tracks, the wires were below the twenty-eight feet. However, this chart does not clearly indicate the height of the wires at the point of the accident. Sparks, in his deposition, estimated the height of the wire or line at ten feet above the top of the boxcar, which he said was fifteen feet high. This evidence presents and raises a genuine fact issue as to the height of the electric lines. Defendant practically concedes this point in its brief wherein it is stated, . . for purposes of this Motion for Summary Judgment, it may be assumed that fact issues might have existed establishing negligence. This is of no significance since the statute in question and provisions as to responsibility would not come into play unless there were an issue of negligence on the part of the utility company.”

The real thrust of defendant’s argument as to its defense to plaintiff’s cause of action and the proper granting of the summary judgment is that plaintiff is barred from recovery by the provisions of Tex.Rev.Civ. Ann. art. 1436c (Supp.1978) (hereinafter referred to as the Act), which provides as follows:

“Sec. 7(b). If a violation of this Act results in physical or electrical contact with any high voltage overhead line, the person, firm, corporation, or association violating the provisions of this Act shall be liable to the owner or operator of such high voltage line for all damage to such facilities and for all liability incurred by such owner or operator as a result of any such contact.”

It is defendant’s contentions that plaintiff, having caused the ladder with which he was working to come in contact with the high voltage lines, violated art. 1436c, § 3. Defendant further contends that because of such violation, the plaintiff, under the provisions of art. 1436c, § 7(b), quoted above, would be liable to defendant for any liability incurred by defendant. Thus, defendant argues, in the event that defendant is found to be negligent and found to be liable to plaintiff, defendant would be entitled by virtue of the statute [art. 1436c, § 7(b)] to recover back from plaintiff the amount of its liability. Defendant further argues that, in order to avoid this circuitry of action, plaintiff should as a matter of law be denied recovery from defendant in the first instance.

To determine if plaintiff has violated art. 1436c, we must look at all of the provisions of the statute. Sec. 3 of art. 1436c provides:

“Unless danger against contact with high voltage overhead lines has been effectively guarded against pursuant to the provisions of Section 6 of this Act, no person, firm, corporation, or association shall require any employee to perform and no person, firm, corporation, or association shall, individually or through an agent or employee, perform any function or activity upon any land, building, highway, or other premises if at any time during the performance of any function or activity, it is possible that the person performing the function or activity shall move or be placed within six feet of any high voltage overhead line or if it is possible for any part of any tool, equipment, machinery, or material used by such person to be brought within six feet of any high voltage overhead line during the performance of any such function or activity.”

Sec. 6 of art. 1436c provides:

“When any person, firm, or corporation desires to temporarily carry on any function, activity, work, or operation in closer proximity to any high voltage overhead line than permitted by this Act, the person or persons responsible for the work to be done shall promptly notify the operator of the high voltage line. The work shall be performed only after satisfactory mutual arrangements have been negotiated between the owner or the operator of the lines or both and the person or persons responsible for the work to be done for temporary mechanical barriers separating and preventing contact between material, equipment, or persons and high voltage electric lines, temporary de-energization and grounding, or temporary relocation or raising of the lines. The actual expense incurred by any operator of high voltage lines in providing clearances as above set out shall be paid by the person or persons responsible for the work to be done in the vicinity thereof and the operator of the lines may require such payment in advance, such operator being without obligation to provide such clearance until such payment shall have been made. Should the actual expense be less than the payment made the difference shall be refunded. The operator of the lines shall be given not less than 48 hours’ advance notice to arrange for such temporary clearances.”

Sec. 7 provides for a fine or confinement in jail for any person who violates any provisions of this Act.

One of the general rules followed in construing legislative enactments is that a statute “should not be given a construction that would produce results so contrary to public justice if it can reasonably be given a construction that will not do so. This is because of the rule that a statute will not be construed so as to ascribe to the Legislature an intention to do an unjust or an unreasonable thing, if such statute is reasonably susceptible of a construction that will not accomplish such a result.” Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455, 458-59 (1942); accord, Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927); Winder v. King, 1 S.W.2d 587, 589-90 (Tex.Comm’n App.1928, jdgmt. adopted).

It is a settled rule that where a statute is plain and unambiguous it will be enforced according to its words. On the other hand, it is a rule in this State, and the rule generally, that “In construing statutes it is the duty of the court to ascertain the Legislative intent, and, when such intent is once arrived at, it should be given effect; in fact, such intent is the law.” Anderson v. Penix, supra, 161 S.W.2d at 459, quoting Popham v. Patterson, 121 Tex. 615, 51 S.W .2d 680, 683 (1932).

The obligation or duty provided for in Sec. 6 of the Act applies specifically to the person, firm, or corporation desiring to temporarily carry on any function, activity, work, or operation in closer proximity to any high voltage overhead line than permitted by this Act. The party responsible for the work to be done shall promptly notify the operator of the high voltage line. The work shall be performed only after satisfactory mutual arrangements have been negotiated between the owner or operator of the lines and the person or persons responsible for the work to be done. The actual expense incurred shall be paid by the person responsible for the work to be done.

It is clear that the obligation to comply with the provisions of Sec. 6 is that of plaintiff’s employer, Sparks, and not of the plaintiff, the individual workman. It is clear from the wording of this section of the statute that the obligation of compliance therewith cannot be that of the plaintiff because he has no authority to act for his employer in negotiating with Gulf States and no authority to bind his employer, Sparks, in an agreement to pay the expenses for any work to be done as provided for in Sec. 6. This being correct, then a violation of Sec. 6 can only be committed by Sparks, and not this plaintiff.

Holding, as we do, that plaintiff has not violated Sec. 6 of the Act, then the question is whether plaintiff has violated the provisions of Sec. 3. In order to prove a violation of this section of the Act there must be a showing of more than the mere fact that plaintiff performed a function when it was possible that he, plaintiff, would move or be placed within six feet of any high voltage line or for it to be possible for any part of any tool, equipment, or machinery used by plaintiff to be brought within six feet of such lines. According to the express wording of this section, there is no violation “[u]nless danger against contact with high voltage overhead lines has been effectively guarded against pursuant to the provisions of Section 6 of this Act ..” The gravamen of the offense or violation is the failure to comply with the provisions of Sec. 6, and, as we have previously noted, this violation can only be committed by the employer and not this plaintiff. We hold, therefore, that this violation not being committed by or attributable to this plaintiff, then the violation complained of in Sec. 7(a) and (b) is not a violation by the plaintiff which could subject him to criminal penalties and the civil penalty of not only barring him from recovery, but actually being liable for damages to Gulf States. To hold otherwise would permit Gulf States to be free of liability from its own negligent acts (assuming negligence on its part) and to bar a recovery by plaintiff even though he was completely free of negligence. In this instance we believe the following rule of construction of the statute is applicable: “. . . if a statute creates a liability unknown to the common law, or deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview.” Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex.1969); accord, Cafeterias, Inc. v. System-Master, Inc., 490 S.W.2d 253, 256 (Tex.Civ.App.—Austin 1973, no writ).

Art. 1436c was enacted by the Legislature for the stated purpose of helping to insure the safety of persons engaged in activities near high voltage lines. We know of no reason for holding that the purpose of the Legislature in enacting Sec. 3 as a part of the law enunciated in art. 1436c was to give the utility company some advantage in this type of case which they did not enjoy at common law. This holding does not render the statute nugatory or futile. The violation by the person owing the duty to comply with Sec. 6 is subjected to criminal and civil penalties not heretofore imposed.

Under the facts of this case, we are of the opinion a genuine issue of fact as to defendant’s negligence has been raised, and art. 1436c does not bar this plaintiff from recovery for his damages under proper proof. In view of our disposition of this appeal, we do not consider the other points urged by plaintiff.

The trial court was in error in granting defendant’s motion for summary judgment. The judgment of the trial court is reversed and the cause remanded for trial.

REVERSED and REMANDED.

KEITH, J., not participating.