text:
    Wallace L. LUERSEN, Appellant, v. TRANSAMERICA INUSRANCE COMPANY, Appellee.
    No. 12561.
    Court of Civil Appeals of Texas, Austin.
    April 27, 1977.
    Rehearing Denied May 11, 1977.

      Bob Roberts, Byrd, Davis, Eisenberg & Clark, Austin, for appellant.
    Wayne H. Prescott, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from a summary judgment in favor of the workmen’s compensation carrier in a suit to set aside a compromise settlement agreement. We will affirm the judgment.

The facts were stipulated. Wallace L. Luersen, appellant, was injured on the job in August, 1970. His major injury was a fracture of the left femur. Luersen, represented by counsel, filed a claim for compensation.

In January, 1972, Luersen and the compensation carrier entered into a compromise settlement agreement for $5,205.00. The compromise settlement agreement was approved by the Industrial Accident Board- in February, 1972. In entering into the. settlement Luersen did not rely upon representa^ tions from the compensation carrier, but instead relied upon representations made by his physician and by other, persons, whose opinions Luersen sought and respected. The compensation carrier paid Luersen all sums which were due under the settlement!

Later that year, in October, 1972, .Luer-sen contracted asceptic necrosis as a result of the fracture. Asceptic necrosis is a major complication of fractures, and results from loss of blood supply, to the affected bone. I Gray’s Attorney’s Textbook of Medicine, § 2.48 (3rd Ed. 1972). The parties stipulated that the development of asceptic necrosis represented a material change in Luersen’s physical condition.

The parties stipulated further that the compensation carrier practiced no fraud upon the workman. No claim was made that additional compensation should be paid to Luersen because of any accident or mistake.

In its motion for summary judgment the compensation carrier averred that the record conclusively demonstrated that there had been no fraud committed by it, and that there had been no mistake which would warrant the setting aside of the compromise settlement agreement. The carrier alleged further that, although Luersen suffered a material change of condition, such a change of condition, as a matter of law, was not a basis for setting aside the settlement agreement.

The district court made plain the basis for the entry of judgment. In that respect the judgment provides: “In particular, the court finds that even though the plaintiff [Luersen] may have suffered a material change of condition, that as a matter of law this is not sufficient reason or justification for setting aside the Compromise Settlement Agreement made the basis of this suit.”

Texas Rev.Civ.Stat.Ann. Art. 8307, § 12 (1967), provides that in the event the liability of the carrier or the extent of injury of the workman is uncertain, indefinite or incapable of being satisfactorily established, the Industrial Accident Board may approve any compromise, adjustment, settlement, or commutation made between the carrier and the workman.

As stipulated, the parties entered into a compromise settlement agreement and pursuant to Art. 8307, § 12, the Industrial Accident Board approved that settlement in February, 1972. At the time of the settlement, and its approval by the Board, the medical reports attached to the stipulations reflected that Luersen’s fracture was healing normally and that his disability would be minimal.

After the commencement of asceptic necrosis, Luersen returned to the Industrial Accident Board and sought to set aside the approval by the Board of the compromise settlement agreement. The stated authority for Luersen’s effort is Tex.Rev.Civ.Stat. Ann. Art. 8306, § 12d (1967). After the entry of an adverse order by the Board, Luersen filed suit in district court.

The relevant provisions of Art. 8306, § 12d, are as follows:

“Upon its own motion or upon the application of any person interested showing a change of condition, mistake or fraud, the Board at any time within the compensation period, may review any award or order, ending, diminishing or increasing compensation previously awarded, within the maximum and minimum provided in this Law, or change or revoke its previous order denying compensation, sending immediately to the parties a copy of its subsequent order or award.”

Luersen’s argument is that Art. 8306, § 12d permits the Board and the courts to set aside a compromise settlement agreement if the workman can show mistake or fraud, or more to the point, a change of condition.

Contrary to Luersen’s position, Art. 8306, § 12d does not pertain to the matter of setting aside compromise settlement agreements or orders by the Board approving compromise settlement agreements. The only powers conferred upon the Board by Art. 8306, § 12d are to review awards of compensation previously made and to change or revoke previous orders denying compensation. The Board’s approval of a compromise settlement agreement is not an award of compensation or an award denying compensation. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466 (1949); Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081 (1935); Lumbermen’s Reciprocal Association v. Day, 17 S.W.2d 1043 (Tex.Com.App.1929, jdgmt. adopted).

The Industrial Accident Board has no authority to set aside, on any ground, a compromise settlement agreement or its order approving the compromise settlement agreement. Stated another way, there is nothing in the Workmen’s Compensation Law which authorizes the avoidance of a compromise settlement agreement by the Board. Brannon v. Pacific Employers Ins. Co., supra ; Commercial Casualty Ins. Co. v. Hilton, supra.

The power of the courts to set aside a compromise settlement agreement for fraud or mistake stems not from the Workmen’s Compensation Law but instead from the Constitution and general statutes defining the courts’ jurisdiction. Whenever a party to a compromise settlement agreement claims to have been induced to execute the agreement through fraud or mistake, the court is the only forum to which he may resort. See Brannon v. Pacific Employers Ins. Co., supra; Commercial Casualty Ins. Co. v. Hilton, supra; Lumbermen’s Reciprocal Association v. Day, supra. There is no authority warranting the courts to set aside a compromise settlement agreement upon the basis of a “material change of condition.” Lumbermen’s Reciprocal Association v. Day, supra.

The judgment is affirmed.


source: Caselaw Access Project

author: COOPER, Judge.

license: Public Domain

text:
    Susan Jane SANTOLI et al., Appellants, v. The LOUISVILLE TRUST CO. et al., Appellee.
    Court of Appeals of Kentucky.
    April 22, 1977.
    Martin Roach, John E. Tarrant, Louisville, for appellants.
    Henry R. Heyburn, Samuel R. Wells, Brown, Todd & Heyburn, Louisville, for appellee.
    Before COOPER, HOGGE and REYNOLDS, JJ.
   COOPER, Judge.

Charles M. Thatcher and Mary A. Thatcher died testate in the state of Michigan, each in 1936. At the time of their death they were survived by three children and a granddaughter, they are respectively; Rosella, Sarah, Oliver and Mary Jane. Their wills contained a trust provision identical in nature and providing as follows:

“I direct that one-fourth of the net income from my said trust estate shall be paid in quarterly installments to my granddaughter, Mary Jane Thatcher of Escanaba, Michigan, so long as she shall live. At her death I direct that her one-fourth of said net income shall be paid in quarterly installments to her surviving issue and the issue of any deceased child of hers, per stirpes, and not per capita, until her youngest child shall arrive at the age of twenty-one years, at which time the share of my said granddaughter, Mary Jane Thatcher, consisting of one-fourth of the principal of said trust estate shall be divided into as many parts as she has children, or issue of deceased children, surviving her. One full part thereof shall be paid in fee to each surviving child of said Mary Jane Thatcher, and one full part thereof shall be divided equally among the issue of any deceased child of hers and paid in fee to them.
In the event my said granddaughter dies without issue surviving her, or dies with surviving issue, but said issue dies childless before arriving at the age of -twenty-one years, then I direct that the share of my trust estate that would have otherwise gone to my said grandchild, or her issue upon arriving at the age of twenty-one years shall be paid to each of my children, Sarah T. Leighton, Oliver V. Thatcher and Rosella T. Boomer, if they survive my granddaughter, Mary Jane Thatcher, otherwise to the issue of such deceased child of mine, per stirpes, and not per capita.
I have treated my granddaughter, Mary Jane Thatcher, in this will on an equal basis with my own children because on account of the death of her mother, she has lived with us since infancy and we have always regarded her like our own daughter.”

The Louisville Trust Co. was subsequently made trustee of this trust.

Mary Jane had no natural born children but adopted two, Susan Jane and Mary Bell. Mary Jane Thatcher died on July 9, 1960, and left surviving her adopted daughters, Susan Jane and Mary Bell, each of whom is now more than twenty-one years of age.

This litigation concerns whether these adopted children, by reason of their being adopted, should receive the portion in which Mary Jane was a life tenant, that amount being one-fourth of the trust.

The Chancellor below held that by virtue of Charles M. Thatcher and Mary A. Thatcher’s being domiciled in the state of Michigan at the date of their death that Michigan law should be applied to the construction of the terms of these testamentary trust provisions in the absence of language which would indicate that the law of any other jurisdiction should be applied. Under the law of Michigan in 1936, the date of the testators’ death, Susan Jane and Mary Bell as adopted children would not take as natural children, and would consequently be excluded from taking under the will.

The dispositive issue before the Court of Appeals is whether the lower Court erred in holding that the law of Michigan should apply rather than the law of Kentucky.

In a comprehensive and well reasoned opinion, the lower Court cited the case of Martin v. Harris, 305 Ky. 235, 203 S.W.2d 78 (1947), which held:

“The general rule as to jurisdiction seems to be that, where the laws of different jurisdictions are involved in the construction and interpretation of a will, the construction and proper interpretation of ascertaining testator’s meaning and intention as expressed therein are governed by the law of the testator’s domicile, unless the circumstances under which the will was executed, or the language of the will as a whole, show that the testator had in mind the law of another jurisdiction, so far as it concerns the ascertainment of the testator’s intention, this rule applies even though the will disposes of real estate. But the operative effect of the will, and the rights of the parties thereunder, as to personalty, are governed by the law of the testator’s domicile at the time of his death and as to the disposition of real estate, or the creation of the interest therein, by the law of the place where the property is situated.”

Appellant argues that logic compels a finding that the testators’ allowing a corporate trustee to be located anywhere in the United States indicates they intended for the law of Kentucky to be applied in interpreting their wills. We cannot agree that the language of the will can be so construed. After a thorough examination of the wills, we find no language which convinces us that the testators intended any law but Michigan’s to be applied in the interpretation of their wills. The law of Michigan, consequently, must be applied. Martin v. Harris, supra; Dannelli, et a1 v. Dannelli’s Admr., 67 Ky. (4 Bush) 51 (1868); Radford v. Fidelity & Columbia Trust Company, 185 Ky. 453, 215 S.W. 285 (1919).

A testator is presumed to know the law of his domicile at the time of his death, and it is presumed that he wishes his will to be executed pursuant to that law if language or circumstances do not otherwise indicate. Courts are reluctant to amplify facts and imply from coincidence to frustrate what must be the presumed intent of the testator. The judgment of the lower Court is affirmed.

All concur.


author: MARTIN, Chief Judge.

text:
    CITY OF PITTSBURG, Kentucky, et al., Appellants, v. Herman FIECHTER et al., Appellees.
    Court of Appeals of Kentucky.
    April 22, 1977.
    Joe T. Roberts, Luker, Luker & Roberts, London, for appellants.
    Robert E. Cato, London, for appellees.
    Before MARTIN, C. J., and WINTER-SHEIMER and WILHOIT, JJ.
   MARTIN, Chief Judge.

This is an appeal from the Laurel Circuit Court directing the dissolution of the sixth class City of Pittsburg. Some two hundred and two registered voters, a majority, petitioned the circuit court for the dissolution as provided in KRS 88.020. The circuit court conducted lengthy hearings and heard evidence from approximately two hundred witnesses before filing his detailed “Opinion and Judgment” granting the request. We affirm.

The statute provides the procedure for dissolution of a sixth class city as follows:

(1) A majority of the voters residing in a city of the sixth class may petition the circuit court of the county in which a greater part of the city is located asking that its charter be dissolved.
(2) The petition shall be signed by each petitioner, and filed in the office of the circuit court clerk not less than twenty (20) days before the commencement of the next regular term of court. The petitioners shall cause notice of the filing of the petition and the object thereof to be published pursuant to KRS chapter 424. The petition shall set out the metes and bounds of the city, the number of voters and inhabitants residing within the boundaries, and any other facte thought proper.
(3) Defense may be made to the petition by any voter of the town, and if a defense is made the court shall hear and determine the same and may render judgment dissolving and annulling the charter. The pleadings and practice, except as herein provided, shall be the same as in equity case; and appeal shall lie from the judgment as in other civil actions.
(4) Whenever the charter of any town is dissolved in the manner hereinabove provided, the judgment shall direct the clerk of the circuit court wherein such judgment is rendered, to certify a copy of said judgment not later than ten (10) days thereafter to the secretary of state whose duty it shall be to properly index and file the same as a permanent record in his office.

This statute has been upheld and followed in Boone County v. Verona., 190 Ky. 430, 227 S.W. 804 (1921), and Green v. Davis, 253 Ky. 105, 68 S.W.2d 750 (1933), the court in Green holding at page 110, 68 S.W.2d at page 752.

In that action a majority of the legal voters of the town had petitioned the court to annul and dissolve its charter in a proceeding conforming to the requirements of the statute. This court in affirming the judgment granting the relief sought in the petition, after an exhaustive review of authorities, held, in effect, that, when a petition conforming to the requirements of the statute is filed in the circuit court, any voter of the town may defend the action, but his only available defenses would be that a majority of the voters were not subscribers to the petition, or that publication of notice had not been made as required by statute; that the court should not adjudicate upon the advantages, disadvantages, necessity, or political propriety of dissolving the charter, but should only determine the issues above indicated and enter judgment accordingly.
[T]he chancellor had no discretion except to enter judgment in conformity with the expressed will of the majority of the voters on the proposed dissolution and annulment of the charter. Therefore the only question remaining is whether the chancellor’s finding that a majority favored a dissolution of the charter is sustained by the record.

The present record clearly supports the conclusion of the trial judge. In the almost six hundred pages of testimony a majority of the eligible inhabitants of Pittsburg reaffirmed the desire to dissolve the city charter. Nothing in this record indicates that the statute has not been followed precisely.

As Judge Helton pointed out and we agree, the best way to handle this situation was suggested in Lawson v. Blanton, 245 Ky. 301, at 304, 53 S.W.2d 556, at 557 (1932):

Some legislator can render a distinct public service by so amending this statute that upon the filing of a petition the court should order an election to take the sense of the voters upon whether or not the incorporated status of cities should be annulled.

The judgment of the circuit court is affirmed.

All concur.


text:
    Greg Allen IVEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 22, 1977.

      Henry E. Hughes, Tackett, Keller, Hughes & Roney, Lexington, for appellant.
    Sam E. Isaacs, II, Asst. Atty. Gen., Frankfort, Patrick H. Molloy, Commonwealth’s Atty., Lexington, for appellee.
    Before MARTIN, C. J., and GANT and LESTER, JJ.
   MARTIN, Chief Judge.

Greg Allen Ivey appeals from a judgment of conviction in the Fayette Circuit Court. He was given a sentence of 20 years for the offenses of burglary, detaining a female, malicious striking and wounding and armed robbery. Ivey contends that he has been deprived of his right to a speedy trial in violation of Section II of the Kentucky Constitution and the Sixth Amendment to the United States Constitution.

The defendant was arrested and taken into custody on charges of attempted rape, robbery, assault and battery, burglary and storehouse breaking on October 31, 1974. On November 6, 1974, Ivey, a sixteen year old, was arraigned in Fayette Juvenile Court. November 20, 1974 was set for a hearing on the prosecutor’s request to waive the charges to the grand jury. On November 10, 1974, Ivey escaped from the Fayette County Jail and fled to Massachusetts.

In December, 1974 Ivey was arrested in Massachusetts on certain criminal charges there and was imprisoned in a Massachusetts correctional institution under the alias William Parker. Kentucky authorities, learning of his confinement, placed a de-tainer against him on February 21, 1975. On April 4, 1975, Ivey filed a request for disposition of charges and a waiver of extradition with the Commonwealth Attorney in Fayette County. On November 17,1975, he became 18 years of age and was no longer a juvenile under Kentucky law.

Following Ivey’s parole in Massachusetts on March 3, 1976, he was returned to Kentucky to be tried on the 1974 charges. He appeared before the Fayette Juvenile Court on March 5, 1976, and this Court declined jurisdiction since he was no longer a minor. On April 19, 1976, Ivey was indicted by a grand jury in Fayette Circuit Court for burglary, detaining a female, malicious striking and wounding and armed robbery. Ivey’s motion to dismiss these charges was overruled on May 7, 1976, and on May 24,1976, he was tried by a jury and convicted on all four counts. The total time, which expired from the date on which Ivey filed his request for disposition of the charges until the time at which he was tried, was eleven months.

The leading case in the area of speedy trial which interprets the requirements of the Sixth Amendment is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the Court identified four factors involved in determining whether conviction will be reversed for denial of Sixth Amendment rights:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right . . . Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

In the case before us, it is admitted that Ivey did assert his right to a speedy trial by his request for disposition of the charges submitted to the prosecutor on April 4, 1975. He contends that the failure to grant this request resulted in prejudice to his defense. The various types of prejudice which most commonly result from delay are set forth, but appellant points out no specific problems with respect to preservation of evidence or death of witnesses which occurred in his own case. Thus, as the Court held in United States v. Bray, 442 F.2d 1064 (9th Cir., 1971), no prejudice can be found on the basis of those arguments alone without facts to support his contentions.

The main thrust of the appellant’s argument with respect to prejudice, however, is that treatment as a juvenile is a constitutional right and because his case did not receive such handling he was sentenced to a twenty-year prison term instead of being committed to the Kentucky Department for Human Resources until he was twenty-one.

There was no guarantee that appellant would have ever been treated as a juvenile at the time he was originally arrested. He was over sixteen years of age and had been charged with committing four serious felonies. The right he possessed as a juvenile was the right to a hearing before the Juvenile Court of Fayette County to determine whether he should be waived to the grand jury for trial as an adult or whether the Juvenile Court should retain jurisdiction. A date for such a hearing had been set, and the hearing would have been held if Ivey had not escaped from custody.

As pointed out in 21 Am.Jur.2d, Criminal Law § 252:

A defendant’s rights under a constitutional provision guaranteeing speedy trial, or under statutes implementing that guaranty, are not violated by a delay caused by his own condition or conduct . an accused cannot take advantage of a delay for which he was responsible, whether caused by action or inaction on his part. This is true where delay is caused by his absence from the state, by his becoming a fugitive from justice, or by his failure to appear for arraignment or trial.

In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Supreme Court held that the Sixth Amendment right to a speedy trial, as made obligatory to the states by the Fourteenth Amendment, cannot be dispensed with by a state court merely because the accused under a state charge is serving a prison sentence imposed by another jurisdiction.

In the present case, the delay does not appear to be unreasonable. Ivey had of course not advised the Kentucky authorities of his location, and he was being held in Massachusetts under an alias. In Byrd v. Commonwealth, Ky., 509 S.W.2d 261 (1974), the Court, which was unconvinced by the appellant’s argument that he was prejudiced by the delay because of the inability to secure the presence of favorable witnesses, refused to reverse for a one year and nine month delay. In Kelly v. Richardson, Ky., 469 S.W.2d 700 (1971), there was no indication of prejudice and various reasons for delay were given. There the Court held that a 20 month delay during which a de-tainer was pending was not reversible error. In Clark v. Commonwealth, Ky., 293 S.W.2d 465 (1956), cert. den., 353 U.S. 923, under the speedy trial provisions of the Kentucky Constitution, it was held that a delay between a May, 1954 indictment and a November, 1955 trial, was not reversible error.

When you apply the balancing test in Barker v. Wingo, supra, by taking into consideration the complexity of this case and the fact that Ivey, by his escape, caused most of the delay, there was no denial of a speedy trial.

Ivey’s other contention on this appeal is that the Circuit Court had no jurisdiction to try him as an adult on the charges pending against him. He attempts to bring this case within the holding in Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974). Both parties concede in the present appeal that when juvenile charges are pending, a minor who becomes 18 after the commission of the crime charged may be tried as an adult. Ivey contends in the present appeal that the prosecutor in Fayette County delayed proceeding against him until he was 18. He further contends that this delay deprived him of a constitutionally protected right of a trial as a juvenile. He contends denial of this right divests the Circuit Court of jurisdiction. Such a contention is meritless. The record clearly supports the conclusion that every available step was taken to insure that the defendant Ivey received a speedy and fair trial.

The judgment of the Circuit Court is affirmed.

All concur.


author: GANT, Judge.

text:
    DADE PARK JOCKEY CLUB, Appellant, v. Mary MINTON, Appellee.
    Court of Appeals of Kentucky.
    Jan. 7, 1977.

      Armer H. Mahan, Louisville, for appellant.
    Ulvester Walker, Henderson, for appel-lee.
    Before GANT, MILLER and VANCE, JJ.
   GANT, Judge.

The Plaintiff-Appellee, Mary Minton, sued for injuries sustained in a fall while attending the summer meet of the thoroughbred races at James C. Ellis Park, a track owned and operated by the Appellant, Dade Park Jockey Club. The Trial Court, in finding for Mrs. Minton, awarded her damages in the amount of $20,205.26. The Court overruled the Appellant’s Motion for Directed Verdict, as well as the subsequent Motion for Judgment Notwithstanding the Verdict. They appealed from these rulings and, in the alternative, Appellant contends that the Trial Court erred in instructing the jury on the substantial urgency or necessity of Appellee’s conduct.

Besides the clubhouse, the track has two major areas for placing bets and cashing tickets. The most frequently used area is the one located on the ground floor under the grandstand and the other area is directly above it on the mezzanine floor. From where Mrs. Minton was sitting on the third floor she could reach the seller’s and cashier’s windows on the mezzanine by using any of the three ramps leading directly to that level. Two of the ramps are located at each end of the grandstand and they are approximately 50 to 75 feet from and parallel with the middle ramp which is where the fall occurred. Mrs. Minton could also have used the steps down the front of the grandstand to the ground floor where the larger area is located.

Mrs. Minton testified that she had attended the track every day of every meeting for about 17 years and that during that period of time, she sat in the same area of the grandstand and used the middle ramp, averaging six to eight trips per day. Mrs. Minton further testified that this particular ramp always had sand or grit on it and that the ramp had always seemed slick to her. She stated that the sand and grit on the ramp is the same generally found in the land adjacent to the river and that the grandstand is generally an open area and subject to wind currents.

On August 5,1969, Mrs. Minton fell while using the middle ramp from the grandstand area to the mezzanine floor and sustained a fracture of her left ankle. She testified that it seemed as if there was more of an accumulation of sand or grit on the ramp than usual and that she had noticed it on the ramp the preceding day.

Mrs. Minton had used the middle ramp on four occasions on the day of her fall. She fell on her fourth trip when going to cash her ticket at the windows on the mezzanine floor. Mrs. Minton knew that the ramp was slick since she testified that one of her feet started to slip and she had to grab the hand rail on one of her earlier trips down the ramp. She claimed that the grit or sand on the ramp caused her fall. Mrs. Minton believed that the sand or grit on which she slipped was the same sand and grit that had been on the ramp the preceding day.

Appellant contends that the court erred in denying its Motion for a Directed Verdict, since it did not have a duty to keep the ramp free of sand and grit which are natural elements for the area where the track was located. Appellant cites Standard Oil Co. v. Manis, Ky., 433 S.W.2d 856 (1968); Bryant v. Kathryn Shoppe, Inc., Ky., 457 S.W.2d 483 (1970), and Curtis v. Traders National Bank, 314 Ky. 765, 237 S.W.2d 76 (1951) for this contention. In examining these cases, the court finds two important distinctions between them and the case at bar. First, the natural elements involved in this trilogy of cases were ice, snow and blowing rain water. This court is of the opinion that the reasoning relied upon in the trilogy of cases is not applicable when the natural elements are sand and grit. Second, the inclement weather in the trilogy was either occurring at the time or shortly preceding the creation of the condition which caused the fall. The evidence in the present case shows that there had always been sand and grit on the ramp and that the sand and grit had accumulated on the day of the fall. There being no evidence of inclement weather or of a strong wind which may have caused the accumulation of the sand and grit, we hold that the Appellee failed to meet her burden of proof as set forth by the following standard:

“. . . where it is not shown that the condition was created by the possessor or under his authority, or as one about which he has taken action, then it is necessary to introduce sufficient proof by either direct evidence or circumstantial evidence that the condition existed a sufficient length of time prior to the injury so that in the exercise of ordinary care, the possessor could have discovered it and either remedied it or given fair adequate warning of its existence to those who might be endangered by it.” Cumberland College v. Gaines, Ky., 432 S.W.2d 650 (1968).

Appellant assigns as error the court’s instruction to the jury on the substantial urgency or necessity for the plaintiff to subject herself to the risk of using the dangerous middle ramp. In rebuttal, the Appellee, in her brief cites Houchin v. Willow Avenue Realty Co., Ky., 453 S.W.2d 560 (1970) for the following:

“. . . Where known antecedent negligence creates a known risk at the time the plaintiff chooses to subject himself to the risk, the question of whether the plaintiff’s subjection of himself to the risk constitutes ‘unreasonable’ conduct, also called ‘contributory negligence,’ is tested in part by the necessity for the plaintiff’s action . . . where the defendant’s already-committed negligent acts of which the plaintiff is aware have created a risk, also of which the plaintiff is aware, the plaintiff cannot recover if there was ‘no substantial necessity or urgency’ for the plaintiff’s subjecting himself to the risk, or if the risk is one that easily could have been eliminated before the plaintiff took action . . . .”

The following excerpts from the testimony of Mrs. Minton prove that she was aware of the risk at the time she decided to proceed down the ramp.

Question. “And had you had any, on the occasion that you had used the ramp, prior to the accident, and I am talking about on this day, had you had any difficulty with regard to going up and down the ramp?” Answer. “Yes, I noticed it was slick.” Question. “How did you notice that, Mrs. Minton?” Answer. “Well, one of my feet started to slip one time.” Question. “And what did you do?” Answer. “I grabbed hold of the hand rail.”

This Court agrees that the Houchin case, supra, is an extension of the rule set out in Bonn v. Sears, Roebuck & Co., Ky., 440 S.W.2d 526 (1969). Therefore, the only issue before this Court is whether there was sufficient evidence of a “substantial necessity or urgency” to constitute a jury question. The guideline set out in Parker v. Redden, Ky., 421 S.W.2d 586 (1967) is as follows:

“Our answer is that if there was no substantial necessity or urgency for the plaintiff’s subjecting himself to the risk, or if the risk was one that easily could have been eliminated before the plaintiff took action, the plaintiff who took the risk must be considered as a matter of law to have acted unreasonably and he will not recover. On the other hand, if there was an urgent necessity for the plaintiff to incur the risk, such as to save a life, and if the risk could not easily have been eliminated, there is no reason why the damage suffered by the plaintiff should be borne by him rather than by the defendant who negligently created the risk.” Citing Restatement, Torts, Second, sec. 466, Comments, pages 512 to 514, sec. 472, pages 521, 522; Prosser, Law of Torts, Hornbook Series, 3rd Ed., sec. 67, pages 450, 451.

The Restatement, Torts, Second, sec. 466 gives us some insight as to when one may intentionally expose himself to a known danger. That section states that a plaintiff is not negligent in exposing himself to a known danger “. . .if such exposure is necessary to the safety of a third person or to accomplish some end which is of purely public interest, as when he drives at a dangerous rate of speed in order to aid the police in apprehending a criminal.”- Mrs. Minton chose to use the middle ramp only because she believed the stairs to the windows on the ground floor would be “inconvenient” or “unhandy.” This court is of the opinion that the inconvenience under these circumstances was not “a substantial necessity or urgency” of the magnitude contemplated in Parker v. Redden. Therefore, this court holds, as did the court in Houchin, that the “. . . character of the risk accompanied by the plaintiff’s knowledge of it as balanced with the purpose of the mission and the ease with which the risk could have been eliminated impelled the conclusion that the plaintiff’s conduct was unreasonable in the circumstances and that she was contributorily negligent as a matter of law.”

For the above stated reasons, the lower court is reversed.

All concur.


author: HENLEY, Judge.

text:
    ABCO TANK AND MANUFACTURING COMPANY, Appellant, v. FEDERAL INSURANCE COMPANY, Respondent.
    No. 59610.
    Supreme Court of Missouri, en banc.
    May 10, 1977.

      A. L. Shortridge, Joplin, for appellant.
    Paul H. Niewald, Kansas City, for respondent.
   HENLEY, Judge.

This is a declaratory judgment action brought by an insured against its insurer. The judgment sought is one declaring that under its comprehensive general liability insurance policy the insurer is obligated to pay the cost of defense of insured and, within the limits of the policy, pay any judgment which may be recovered against insured in a pending action for property damages arising out of an explosion and fire at a facility installed by insured for another. From an adverse judgment, the insured appealed to the Court of Appeals, Springfield District. On recommendation of that court after submission but without opinion, the case was transferred here for decision.

The main question presented is whether, within the meaning of the policy as defined in its “completed operations hazard” provisions, installation of the facility was completed before or after the explosion and fire. If it was completed before the fire, the policy afforded no coverage because an endorsement excluded coverage for the hazards of completed operations. We hold that it was completed after the fire and reverse and remand.

In January 1971, Abco Tank and Manufacturing Company (hereinafter Abco) entered into a contract with Doane Feed Products Company hereinafter Doane) in which Abco agreed for a specified price to install at Doane’s plant in Joplin, Missouri, a liquid propane standby heating facility so that Doane could continue production in its manufacturing plant during cold weather when its natural gas, supply would be curtailed. In particular, Abco agreed: (1) “to furnish all necessary equipment, valves, piping, labor, painting, startup supervision to complete this installation”; (2) that “the installation, when completed, shall be capable of providing up to 25,000 cubic feet per hour of completely interchangeable gas-air mixture of approximately 1450 Btu per cubic foot at 45 to 50 PSI”; (3) that the vaporizer, one of the component parts to be furnished, would be capable of converting 500 gallons of liquid propane per hour into 65 PSIG of propane vapor while operating at an ambient temperature as low as -20° Fahrenheit; (4) to furnish a certificate of property damage and other specified public liability insurance coverage; (5) “that the installation, when completed, and all equipment shall be warranted against defect for a period of one (1) year after date of completion.”

While Abco designed the standby facility, it did not design or manufacture any of the components employed in installing the facility. As to these component parts, Abco determined who could supply each and specified for the supplier what his component would be required to do and its capacity, but left it to the judgment of the supplier to furnish a component which would meet the requirements specified. The vaporizer, an integral part of the facility, was designed, manufactured and supplied by National Tank Company (hereinafter Natco).

A certificate of insurance was furnished Doane certifying that Federal Insurance Company (hereinafter Federal), the defendant in this case, had issued its comprehensive general liability insurance policy No. 7762-74-81 to Abco, as insured, covering property damage liability (and other coverage) for the period from April 16, 1971, to April 16, 1974. Pertinent provisions of the policy and endorsement are as follows:

“1. COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

Coverage A. bodily injury or

Coverage B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.

EXCLUSIONS

This insurance does not apply:

(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner-,” (emphasis supplied).

“(k) to bodily injury or property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured, if such failure is due to a mistake or deficiency in any design, formula, plan specifications, advertising material or printed instructions prepared or developed by any insured; but this exclusion does not apply to bodily injury or property damage resulting from the active malfunctioning of such products or work;” (emphasis supplied).

* * * * * *

“Coverage B — The total liability of the company for all damages because of all property damage sustained by one or more persons or organizations as the result of any one occurrence shall not exceed the limit of property damage liability stated in the schedule as applicable to ‘each occurrence.’

Subject to the above provision respecting ‘each occurrence,’ the total liability of the company for all damages because of all property damage to which this coverage applies and described in any of the numbered subparagraphs below shall not exceed the limit of property damage liability stated in the schedule as ‘aggregate.’

“(2) all property damage arising out of and occurring in the course of operations performed for the named insured by independent contractors and general supervision thereof by the named insured, including any such property damage for which liability is assumed under any incidental contract relating to such operations, but this subpar-agraph (2) does not include property damage arising out of maintenance or repairs at premises owned by or rented to the named insured or structural alterations at such premises which do not involve changing the size of or moving buildings or other structures;”

* * * * * *

“completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:

(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed.

(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or

(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.

Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.

* * * * * *

“incidental contract” means any written (1) lease of premises, (2) easement agreement, except in connection with construction or demolition operations on or adjacent to a railroad, (3) undertaking to indemnify a municipality required by municipal ordinance, except in connection with work for the municipality, (4) sidetrack agreement, or (5) elevator maintenance agreement;”

“(The Attaching Clause need be completed only when this endorsement is issued subsequent to preparation of the policy.)

LIABILITY #3

******

G 304

EXCLUSION

(Completed Operations Hazard and Products Hazard)

This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following:

COMPREHENSIVE GENERAL LIABILITY INSURANCE

This endorsement * * * forms a part of policy No. 7762-74-81 * * *.

It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard.”

All necessary components of the standby facility were assembled, connected and installed at Doane’s plant in August, 1971. It was checked and the determination made that “everything was hooked up * * *, that there was a source of fuel, and that it was operable * * *.” It was ready to be adjusted and tested under cold weather conditions. In October,-;:it‘ was: checked"'1 and tested again, this time by Abco turning off the natural gas supply and starting up the standby system. Prom this, it was determined that all components were functioning. Adjustments were made at this time, but it was still too warm to make such adjustments, if any, as would be necessary for wintertime operation.

In November or December, 1971, before the facility could be tested and adjusted under cold weather conditions, the supplier curtailed the use of natural gas for industrial purposes. The standby system was turned on and, after brief use, it failed. Abco made several adjustments in an attempt to locate the difficulty and correct it, all to no avail. After many tests and experiments, it was determined by Abco that the problem was in the vaporizer; that the vaporizer was defective and not functioning as required in that it was not converting into vapor all the liquid propane supplied to it but was permitting a liquid carryover to come through into the mixer. Natco, informed that its vaporizer was not meeting the requirements specified by Abco, said that it was. Nevertheless, it inspected the system and with Abco attempted to keep it operating (before and after the fire) through periods when the natural gas supply was curtailed, but each time it would fail after brief use. On February 4, 1972, during the period of time when Natco was attempting to adjust or correct the vaporizer, an explosion and fire, apparently caused by the standby facility, occurred at Doane's and caused considerable damage to its plant, but none to the standby facility. Some time after the fire, Natco replaced the vaporizer with another and from that point on the facility functioned as required without mishap. The requirements and capacity specified by Abco for the vaporizer were never changed or altered either for the original, which was deficient, or for its replacement; the specifications remained the same from beginning to end.

After the fire, Doane sued Abco and others (suppliers of components) to recover for the damages caused by the fire, alleging negligence (count I) and breach of warranty (count II). Abco requested Federal to defend it against Doane’s suit pursuant to the policy, but Federal refused. Grounds for its refusal were that, under the policy, the damage sustained by Doane occurred after Abco had completed its operation of installing the standby facility and the policy issued to Abco did not afford coverage for this occurrence, because Abco did not purchase coverage for the hazards of completed operations.

This, in substance, is Federal’s defense to this declaratory judgment action. Abco’s pleaded theory of recovery is, in substance, that the fire at Doane’s plant and any damage thereto occurred during installation of the facility and before completion. In other words, Abco’s position is that the operation was not completed until all adjustments and testing had been made and the defective vaporizer replaced with one which would function so that the facility could operate in the manner and be used for the purpose for which it was designed.

The case was tried before the court without a jury. The evidence consisted of various admissions, letters and documents, and the deposition testimony of three witnesses, one of whom (the president of Abco) also testified briefly in person.

We review the case “upon both the law and the evidence as in suits of an equitable nature.” Rule 73.01, subd. 3(a). In Murphy v. Carron, 536 S.W.2d 30[1] (Mo. banc 1976) the court held that this means “that the decree or judgment of the trial court will be sustained by the appellate court 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.” 536 S.W.2d at 32.

The trial court made and filed findings of fact and conclusions of law. The facts stated above, found by us on our review of the evidence, are essentially the same as those found by the trial court. In addition, the trial court found and concluded (1) that the provisions of the policy as to when operations shall be deemed completed are clear and unambiguous; and (2) that the installation of the standby facility had been completed in August, 1971, leaving as the only operations to be performed those involving further service, such as adjustments and corrections, and replacement of the defective vaporizer.

Abco contends on appeal, as it did in the trial court, that the terms of the policy are ambiguous and, therefore, should be construed most favorably to the insured. Central Surety and Insurance Corporation v. New Amsterdam Casualty Company, 359 Mo. 430, 222 S.W.2d 76, 78[1] (1949). It asserts that the policy is ambiguous in that it provides coverage for property damage under the exceptions to the exclusions of paragraphs (a) and (k) emphasized by italics in the above quotations of those paragraphs; and, that these exceptions, when considered with the endorsement excluding coverage for the hazards of “completed operations,” created an ambiguity in the exclusions intended which must be resolved against Federal and in favor of coverage by the policy for this occurrence.

This contention is without merit. The policy of insurance and an endorsement must be read together where there is a dispute as to its meaning, and they should be construed together unless they are in such conflict they cannot be reconciled. Cain v. Robinson Lumber Co., 295 S.W.2d 388, 390-391[l-3] (Mo. banc 1956). If the language of the endorsement and the general provisions of the policy conflict, the endorsement will prevail, and the policy remains in effect as altered by the endorsement. Linenschmidt v. Continental Casualty Co., 356 Mo. 914, 204 S.W.2d 295, 300[3] (1947); Empire Fire and Marine Insurance Co. v. Brake, 472 S.W.2d 18, 23[3] (Mo.App. 1971).

It is clear from the endorsement to this policy that the intention was to modify its provisions relating to comprehensive general liability insurance by excluding from the property damage liability coverage, property damage included within the completed operations hazard. The fact that some of the coverage for the completed operations hazard is provided for in an exception to an exclusion rather than in the general coverage provisions makes no difference under the wording of the endorsement; so long as the coverage appears in the comprehensive general liability insurance portion of the policy, it is to be excluded by this endorsement. There is no reason why coverage “saved” by an exception to an exclusion of the policy should be any more exempt from exclusion by the endorsement than are the general coverage provisions themselves. The effect of the endorsement was, therefore, to exclude property damage included within the completed operations hazard regardless of whether coverage for that hazard was provided for by the general coverage provisions of the comprehensive general liability insurance portion of the policy or by an exception to an exclusion from the general coverage provisions.

No ambiguity is created by the wording of the endorsement or by the wording of the exceptions to exclusions (a) and (k). The trial court did not err in concluding that the provisions of the policy are clear and unambiguous.

Abco also contends that the endorsement excluding from coverage liability for any damage which occurred after its operations had been completed did not relieve Federal of its obligations under the policy, because there is “no substantial evidence that the installation had been completed for its intended use before February 4, 1972, the date of the loss”; that the evidence is that the loss occurred before completion of the operations it had contracted to perform.

Under the definition of “completed operations hazard” the earliest time at which it could be said that the operations shall be deemed completed is stated in paragraph numbered (1) to be: when all operations under the contract between Abco and Doane have been completed. Another part of the definition to be considered in connection with paragraph (1) is the following unnumbered paragraph: “Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

What are the operations required by the contract to be completed by Abco? Was Abco’s contract to install a standby facility which, when completed, should be capable of providing Doane with heat of a quantity and quality sufficient to permit its plant to continue to operate while the natural gas supply was curtailed? Or, was it to install a facility which, when completed, would be capable of supplying such heat? If Abco’s obligation was the former, then its operations were completed in August, before the fire, because at that time all necessary components had been assembled and installed and, according to design, should have been capable of functioning as required. And the work performed thereafter by Abco was mere “further service * * *, or correction * * * or replacement because of * * * deficiency * * *” in the vaporizer. If however, Abco’s obligation was the latter, then the operations to be performed by it were not completed until after the fire, because at no time before the fire was the facility installed capable of supplying sufficient heat to permit Doane’s plant to continue to operate after the natural gas supply had been curtailed. It failed after brief use each time it was called upon to function. It was not until after another vaporizer was installed that the facility could be used; and, it was not until then that Abco’s operations were “completed” within the meaning of the policy.

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

SEILER, C. J., and MORGAN, BARD-GETT, FINCH and DONNELLY, JJ., concur.

RENDLEN, J., not participating because not a member of the court when cause submitted.

      . This case presents to this court for the first time questions involving the “completed operations hazard” provisions of the revised standard comprehensive general liability insurance policy adopted by the insurance industry effective October, 1966. See: Gowan, Completed Operations and Products Liability Insurance Coverage Of The New Comprehensive General- . Automobile.. Policy. , ,1966 Proceedings, of A.B.A. Section Of Insurance, Negligence and Compensation Law, pp. 265-293.
      Cases cited by the parties involving comprehensive general liability insurance policies used in the insurance industry before adoption of the new policy in 1966 have been considered but have been of little value in deciding this case. Cases considered involving the new policy are: Williams v. New Mexico State Highway Commission, 82 N.M. 550, 484 P.2d 770, 772[2] (1971); Southwestern Bell Telephone Co. v. Travelers Indemnity Co., 252 Ark. 400, 479 S.W.2d 232 (1972); Security Ins. Co. of Hartford v. Kaye Milling Supply Inc., 297 Minn. 348, 211 N.W.2d 519 (1973); Hanover Insurance Co. v. Hawkins, 493 F.2d 377 (7th Cir. ■! 1974); ' Aetna Casualty ⅜ tSufefy'CorV: Roth-man, 331 So.2d 81 (La.App.1976); W. N. Leslie, Inc. v. Travelers Insurance Co., 264 S.C. 408, 215 S.E.2d 448 (1975); Whitten Oil, Inc., v. Fireman’s Fund, Inc., 112 N.H. 257, 293 A.2d 757, 759[3] (1972); Southern Guaranty Insurance Co. v. Scott, et al., 289 Ala. 159, 266 So.2d 602, 58 A.L.R.3d 1 (1972).

      . Pertinent allegations of Abco’s petition are: “that on * * * the 4th day of February, 1972, during the construction and installation and adjustment and testing of the * * * Facility a fire and explosion occurred at the Plant of Doane * * (emphasis supplied).


author: DOWD, Judge.

text:
    COLLECTOR OF REVENUE FOR the CITY OF ST. LOUIS, Missouri, Plaintiff-Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS (SERIAL NUMBER 17-143), owner Harvey F. Euge, Defendant-Appellant.
    No. 38051.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.
    Motion for Rehearing or Transfer Denied May 6, 1977.
    Application to Transfer Denied May 6, 1977.

      James E. Crowe, St. Louis, for Collector of Revenue.
    Harvey F. Euge, pro se.
   DOWD, Judge.

This suit for foreclosure of delinquent tax liens was instituted by the Collector of Revenue of the City of St. Louis, pursuant to The Municipal Land Reutilization Law, § 92.700 et seq., RSMo Supp.1971. Defendant-appellant, Harvey F. Euge answered, alleging that he is the record-owner of the property and that the tax liens were illegal because the taxes were excessive and that The Municipal Land Reutilization Law was unconstitutional under the United States and Missouri Constitutions. Following a hearing, at which defendant-appellant did not appear, the trial court ordered the liens foreclosed, entered judgment for plaintiff against defendant, and ordered sale of the property. Defendant-appellant appealed to the Supreme Court. In his notice of appeal he stated that the jurisdiction of the Supreme Court was based on the fact the appeal involved construction of the federal or state constitution and construction of the revenue laws of Missouri. In the jurisdictional statement he filed with the Supreme Court, appellant stated the Court had jurisdiction because the case called for construction of the State Constitution. On its own motion, the Supreme Court transferred the case to the Missouri Court of Appeals, St. Louis District, stating that jurisdiction is vested in this Court.

The appellant, who is not an attorney but a frequent litigant in this court, represented himself in the proceedings below and filed a pro-se brief here.

Appellant’s first point is that the trial court erred in not declaring The Municipal Land Reutilization Law unconstitutional under article I, section 10 of the Missouri Constitution and the fourteenth amendment of the United States Constitution. Appellant does not request mere application of an established construction of the Constitution; he asks for construction of the State Constitution. However, we may not consider this point because we must treat the Supreme Court’s transfer order as an adjudication that this Court has jurisdiction of the appeal and that the case does not involve issues of constitutional construction. State v. Higgins, 252 S.W.2d 641, 643[2] (Mo.App.1952).

Thus the only point left for our consideration is appellant’s contention that the trial court judge was so prejudiced that the case should be remanded for proceedings before a different judge. We have carefully searched the record for evidence of prejudice against defendant-appellant on the part of the trial judge and have found none. This point is ruled against appellant.

The judgment is affirmed.

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


author: GUNN, Judge.

text:
    David T. SPOONER et al., Plaintiffs-Respondents, v. Joseph H. BATES et al., Defendants-Appellants.
    No. 37672.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 9, 1977.

      Hale W. Brown, Kirkwood, for defendants-appellants.
    Richeson, Roberts, Wegeman, Gasaway, Stewart & Schneider, Nicholas G. Gasaway, Hillsboro, for plaintiffs-respondents.
   GUNN, Judge.

Defendants appeal from the judgment of the trial court establishing a roadway easement in favor of plaintiffs over lands owned by defendants. On appeal, defendants contend that plaintiffs failed in proving prescriptive use of the roadway for more than ten years and that the trial court erred in admitting certain deposition testimony. We affirm the trial court’s judgment.

Plaintiffs’ witnesses testified that there had been an open, adverse, visible, continuous and uninterrupted use, under claim of right, of a roadway through defendants’ property for a period substantially in excess of ten years. The evidence from plaintiffs’ witnesses was that the roadway through defendants’ land had been used as a public roadway from the early 1900’s to shortly before the time of trial when defendants had blocked its usage. A keystone built into the plaintiffs’ case was the testimony of Clement Lovely who testified as to the unrestricted use of the road by the public from 1955 to 1972, when he finally disposed of all his Washington County property and moved from the area. Lovely testified that the roadway over defendants’ property led into property owned by him and had been continuously used by the general public and him; that he had participated in the cost of materials and labor of the roadway’s maintenance; that neither he nor any other person had been interdicted in the use of the roadway nor had sought permission of the property owner for its use. The plaintiffs also introduced evidence that the roadway was well defined, well used and fairly well maintained, suitable for accommodating motor vehicular traffic.

Defendants’ evidence was that any use of the roadway was with the owner’s consent; that there had been only a minimal use of the roadway and certainly not by the public; that at best the roadway was a “wild land” road — scarcely more than a path— and not suitable for vehicular traffic.

Thus, plaintiffs’ and defendants’ evidence conflicts mightily, and we resolve the conflict by relying on the oft cited Murphy v. Garron, 536 S.W.2d 30 (Mo. banc 1976). Under the guidelines of Murphy v. Garron, supra, we are to sustain the judgment of the trial court unless: (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, or (3) it erroneously declares or applies the law. Given the foregoing monitions, we find ample basis to sustain the trial court’s decision.

The plaintiffs’ evidence palpably establishes the prescriptive easement of the roadway over defendants’ property. The requisite elements for prescriptive use easement are that the use was open, adverse, visible, continuous and uninterrupted under a claim of right for ten years or more. All essential factors to establish the roadway easement by prescriptive use were present, supported by substantial evidence. The law in this regard is constant in its declaration. Roth v. Flieg, 536 S.W.2d 39 (Mo. banc 1976); Nash, et al., v. Michael, et al., 547 S.W.2d 885 (Mo.App.Spfld.1977); Carpenter-Union Hills Cemetery Assoc, v. Camp Zoe, Inc., 547 S.W.2d 196, (Mo.App.Spfld. 1977); McIlroy v. Hamilton, 539 S.W.2d 669 (Mo.App.1976); Trustees of Forestgreen Est. 4th Addition v. Minton, 510 S.W.2d 800 (Mo.App.1974); George v. Dickinson, 504 S.W.2d 658 (Mo.App.1974).

Defendants’ argument that the roadway was a “wild land” road was refuted by plaintiffs’ evidence, and, again, we defer to the trial court’s ruling in this regard. See Carpenter-Union Hills Cemetery Assoc, v. Camp Zoe, Inc., supra.

Defendants argue that the trial court erred in receiving the deposition of witness Clement Lovely into evidence for the reason that there was no foundation for its use. Defendants argue that there was no showing that Mr. Lovely was not available to the court. We disagree. Mr. Lovely’s deposition, which was taken in San Diego, California, clearly recites that his residence was in San Diego. Rule 57.-07(a)(3)(D) specifically permits the use of a deposition during the course of a trial if the trial court finds that the witness resides out of the state. The trial court by its acceptance of the deposition into evidence obviously found that Mr. Lovely resided outside the State of Missouri, and, indeed, there was ample evidence from the deposition to support that finding. There was no error in admitting Mr. Lovely’s deposition into evidence. See Sabbath v. Marcella Cab Co., 536 S.W.2d 939 (Mo.App.1976); Brock v. Steward, 519 S.W.2d 365 (Mo.App.1975).

We find that plaintiffs have met their burden of proving the requisite elements to establish a roadway easement by prescription; the judgment is affirmed.

KELLY, P. J. and McMILLIAN, J., concur.

      . The property was owned by Robert Johnson prior to its sale to defendants in 1973.

      . The roadway under consideration bore several appellations — “Scotty’s Road,” the “Old Ap-tis Road,” the “Potosí Tie and Timber Road.”

      . The property which was owned by Mr. Lovely was ultimately purchased by some of the plaintiffs.

      . In George v. Dickinson, supra, Judge Si-meone has given a thorough and pedagogical treatment of the law relating to roadway easements by prescription.

      . Defendant does not raise any issue as to notice or representation at the taking of the deposition. See Rule 57.07(a).


author: TITUS, Judge.

text:
    Clarence COCKRUM et al., Plaintiffs-Appellants, v. Nuel F. COCKRUM, Defendant-Respondent, and Matt Cockrum, Defendant.
    No. 10024.
    Missouri Court of Appeals, Springfield District.
    April 15, 1977.

      Newton C. Brill, Moore & Brill, West Plains, for plaintiffs-appellants.
    A. F. Turner, Mountain Grove, Quentin Haden, Ava, Russell G. Clark, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-respondent.
    Before STONE, P. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Clay Cockrum (Clay), owner of a 155-acre Ozark County farm, died February 24,1970. An instrument dated December 29, 1969, was adjudged by the Probate Court of Ozark County to be Clay’s last will and testament. A nephew of decedent, Nuel Cockrum (Nuel), was named the executor and sole beneficiary of the will. Two of Clay’s brothers and a daughter of a deceased brother brought this action to contest the will claiming, alternatively, that Clay was not competent to execute a will, that Clay had revoked the will, or that Clay executed the will under the undue influence of Nuel. After changes of venue and judges had been procured and jury waived, the cause was tried to a special judge in the Circuit Court of Howell County. The testimony of 21 witnesses, in person and via deposition, consumed the two days it took to try the matter. Judgment was rendered declaring the instrument in question to be decedent’s last will and testament. Plaintiffs appealed.

The standard for appellate review in court-tried cases under Rule 73.01-3(a), V.A.M.R., obliges us to affirm the judgment nisi “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. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carrón, 536 S.W.2d 30, 32[1, 2] (Mo. banc 1976). In addition, Rule 73.01-3(b) admonishes that “Due regard shall be given [by appellate courts] to the opportunity of the trial court to have judged the credibility of witnesses.” In this same vein is the rule that the trial court, when sitting as the trier of the facts, has leave to believe all, part or none of the testimony of any witness. Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975).

Several days prior to the signing of the will, Nuel went to a lawyer explaining that Clay wanted a deed prepared conveying his property to Nuel. The lawyer counseled against this, lest it would jeopardize Clay’s “welfare” payments, and suggested a will. Nuel returned December 29, 1969; the lawyer prepared the will and gave it to Nuel. At that time Clay was living in Nuel’s home. On the 29th two neighbors were asked to come to Nuel’s residence to serve as attesting witnesses. These witnesses testified they were at the house “an hour or so” visiting with Clay who looked and acted “about like he always did.” During this period the will was read aloud to Clay once by Nuel’s wife and twice by one of the attesting witnesses. Each time the readers inquired of Clay, “is this what you want,” and Clay would answer, “yes, this is what I want.” Thereafter, Clay and the two witnesses signed the will. These attesting witnesses, and others who testified, opined that at and near the time the will was signed, Clay was of sound mind, understood the ordinary affairs of life, knew the nature and extent of his property and the persons who were the natural objects of his bounty, and appreciated his natural obligations to those persons. There was also testimony that Clay, both before, at the time of and after signing the will, expressed the desire that Nuel was to have his “place” because “I don’t owe my brothers nothing.”

As would be expected in a case of this kind, the plaintiffs produced witnesses who testified to reported conduct on Clay’s part which, if taken collectively and if be-lievfed to have existed at the time the will was executed, would tend to prove that Clay did not possess the necessary requirements for testamentary capacity. They introduced the deposition of a physician who attended Clay while he was hospitalized in November 1969 and again in February 1970 shortly before his demise. The doctor diagnosed Clay’s condition as “metastic carcinoma from the esophagus to the lung and brain.” When Clay entered the hospital November 7,1969, he lacked total control of his body movements, could not stand or walk, and was unable to speak coherently. However, Clay improved with medication and treatment, and when discharged on November 15, 1969 (six'weeks prior to execution of the will), the doctor said Clay “was up and about, speaking, in control of his faculties.” In response to a hypothetical question, the physician answered that he had “no cogent opinion” as to whether Clay “would be easily influenced on December 29,1969.” In November 1969 the doctor did not consider Clay’s condition “terminal.” Plaintiffs suggest the mere diagnosis of brain cancer constituted conclusive proof of testamentary incapacity and rely on Detrich v. Mercantile Trust Company, 292 S.W.2d 300 (Mo.1956). The facts in Detrich differ from those presented here. In the reported case the jury found testatrix to have been of unsound mind when she signed her will. This finding was permissible from the undisputed medical evidence that before execution of the will testatrix was suffering from irreversible brain damage which caused her to have an unsound mind. The court concluded that from “the- nature'-of her illness, that it was permanent and progressive, ‘not reversible,’ there was a presumption that her incapacity continued down to and including the making of the will.” (Id. 303[4]). In the instant case no doctor said that Clay’s condition resulted in his having an unsound mind prior to execution of the will. Therefore, the presumption which arose in Detrich would have no foundation in this cause.

. Without resorting to a detailed recasting of the prolix testimony given by the witnesses regarding Clay’s competency to execute the will, it is enough to say that whether he had testamentary capacity vel non when the will was made was subject to conflicting evidence which presents a situation calling for due deference being given to the superior opportunity of a trial court to have judged the credibility of the witnesses. We could not rule in comfort that the court’s finding that Clay was competent to execute the will when he did was not supported by substantial evidence or was against the weight of the evidence.

Next we consider plaintiffs’ seemingly paradoxical claim that Clay had revoked the will. Revocation must be done animo revocandi (with intention to revoke) and while the testator is possessed of the same testamentary capacities necessary to make a valid will. Schaaf v. Peters, 111 Mo.App. 447, 459, 90 S.W. 1037, 1040[4] (1901); Page on Wills (Bowe-Parker Rev.) § 21.27, p. 387; 95 C.J.S. Wills, § 264, p. 81; 79 Am.Jur.2d, Wills, § 500, at p. 267. Therefore, if Clay had not been competent to execute the will as declared by plaintiffs, he would not have been competent to revoke it in any of the ways specified in § 474.400, V.A.M.S. But since the trial court found Clay was competent to make the will and had not revoked it, we will explore the matter of revocation in light of the following additional facts.

Subsequent to the execution of the will and while Clay was yet alive, Nuel, with the original will in his possession, made a third visit to the lawyer who was scrivener of the testament concerning “representing him in a matter that had been brought to have a guardian appointed for Clay.” The lawyer declined, as he was then representing one of Clay’s brothers (later a contestant of the will) in the guardianship affair. On this occasion the lawyer made a photocopy of the executed and witnessed original will for his files and returned the original thereof to Nuel. After Clay’s death, Nuel made a fourth call upon the lawyer and obtained from him a photocopy of the first photocopy of the original will. It was the photocopy of the first photocopy of the will that was received and stood as evidence of Clay’s last will and testament.

In a will contest case, the burden of proving revocation is on the party alleging the defense. Yates v. Jeans, 345 S.W.2d 657, 660[1] (Mo.App.1961); 95 C.J.S. Wills § 385, p. 279. The testimony evinced four possible bizarre explanations for the absence of the original will. Nuel’s mother testified that she regularly kept all of Clay’s papers, including the original will given her by Nuel, locked in a trunk at her home. One day after Clay’s death, and while another son and his wife were present, she burned the original will upon the instructions of her husband, who died before trial. The son and daughter-in-law, called as plaintiffs’ witnesses, acknowledged they had observed a burning but disavowed having read the purported will before it was burned and opined the burned paper was not of legal size. The lawyer-scrivener of the will said it and the photocopies made thereof were on legal size paper and that Nuel’s avowed reason for wanting a photocopy of his photocopy was that the original will had been stolen from his dresser drawer on the day he took Clay to a Springfield hospital in February 1970. A contestant of the will testified that two weeks before trial of the instant matter Nuel had admitted telling either the lawyer-scrivener of the will or the person who was probate judge in 1969-70 (they both had the same surnames) that Clay “burned the will up.” The former probate judge just mentioned, who acknowledged having been approached on the subject by all concerned, recalled that during a discussion with Nuel the latter told him that Clay “ ‘called for the will and I got it for him . and he tore the whole thing up.’ ”

Here again we have sharp conflicts in the testimony for resolution by the fact trier. The statements attributed to Nuel as to what happened to the original will are certainly not compatible. If the will was stolen from Nuel’s dresser while Clay was in the hospital in Springfield, then Clay could not have torn or burned it unless the thief had thereafter given it to Clay. Likewise, if Clay had “burned the will up” it would appear unlikely that anything remained which could be torn, or if he had first “tore the whole thing up” it would seem unnecessary that he cremate the pieces. Also, if the testimony of plaintiffs’ witnesses anent Clay’s physical condition at and subsequent to the signing of the will was believable, it would have been next to impossible for Clay to have either torn or burned the document. One thing that could have prompted the trial court into concluding that Clay had not revoked the will was the utter dearth of any evidence that Clay had ever mentioned a revocation albeit there were numerous occasions on which he could have done so if it was a fact.

Plaintiffs seek reliance on the presumption of revocation when a will, last known to be in possession of the testator, cannot be found upon death. Vesser v. Neff, 214 S.W. 185, 189 (Mo.1919); Hamilton v. Crowe, 175 Mo. 684, 647, 75 S.W. 389, 392 (1903); Yates v. Jeans, supra, 345 S.W .2d at 661[2]; 95 C.J.S. Wills, § 385, p. 283. This presumption must be established by proper evidence by those who seek its benefit. It is not all conclusive and may be rebutted. Board of Trustees of Methodist Church v. Welpton, 284 S.W.2d 580, 583[2] (Mo.1955); McMurtrey v. Kopke, 250 S.W. 399, 401[3] (Mo.1923).

We doubt that plaintiffs adduced sufficient evidence to raise the presumption of revocation. Except for the statements of tearing and burning attributed to Nuel, no evidence of record indicates Clay had possession of the will after it was executed. The evidence tended to show that either Nuel or his mother had possession of the will subsequent to its signing. However, even if we assume the presumption arose, the evidence of lack of access by Clay to the will [Mann v. Balfour, 187 Mo. 290, 307-308, 86 S.W. 103, 107 (1905); 95 C.J.S. Wills § 385, at pp. 286-287; 24 Wash.U.L.Q. 105, at 112] and statements allegedly made by Clay near time of death tending to show its continued existence [McClellan v. Owens, 335 Mo. 884, 894, 74 S.W.2d 570, 575[8] (1934); Peters v. Dodd, 328 S.W.2d 603, 608[2, 3] (Mo.1959); Page on Wills (Bowe-Parker Rev.) § 29.146] would substantially rebut the presumption.

It is our view that the trial court’s ruling on the absence of revocation was based upon substantial evidence.

Finally, we consider the finding by the trial court that the will was not executed under Nuel’s undue influence. The burden of proving undue influence rests, of course, upon the contestants [Martin v. O’Connor, 406 S.W.2d 41, 43[5] (Mo.1966)] who can meet the burden only upon the introduction of substantial evidence. Switzer v. Switzer, 373 S.W.2d 930, 932[2] (Mo.1964). “By ‘undue influence’ is meant such influence as amounts to force, coercion, or overpersuasion, which destroys the free agency and will power of the testator.” Sehr v. Lindemann, 153 Mo. 276, 289, 54 S.W. 537, 540 (1899). Undue influence sufficient to overturn a will must be of such strength that the will is not that of the testator but that of the party exercising the undue influence. Sweeney v. Eaton, 486 S.W.2d 453, 455 (Mo.1972). It is not a natural affection felt by the testator [Metter v. Janssen, 498 S.W.2d 581, 583[3] (Mo.App.1973), cert. den., 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 742 (1973)] and it is not the existence of undue influence but rather its exercise at the time of execution of the will which invalidates the will [Switzer v. Switz er, supra, 373 S.W.2d at 938[8]], although the exertion of the influence at the exact time of execution need not be proved. Salisbury v. Gardner, 515 S.W.2d 881, 886[6] (Mo.App.1974).

A presumption of undue influence will arise if the contestants of a will can sufficiently establish three elements, namely, (1) procurement of the will by a beneficiary, (2) a confidential relationship between the testator and the beneficiary, and (3) benefaction by the one procuring the will. Pulitzer v. Chapman, 337 Mo. 298, 316, 85 S.W.2d 400, 409[3] (banc 1935); Simmons v. Inman, 471 S.W.2d 203, 206[1] (Mo.1971); Salisbury v. Gardner, supra, 515 S.W.2d at 884[2]. Although the presumption may be rebutted, it does not disappear from the case and raises an issue for the trier of the facts. Loehr v. Starke, 332 Mo. 131, 142, 56 S.W.2d 772, 776[3] (banc 1932); Pasternak v. Mashak, 392 S.W.2d 631, 636[4] (Mo.App.1965). As Nuel was the sole beneficiary under the will and had retained the scrivener of the will, elements (1) and (3) are not at issue, leaving only element (2) to be decided.

Required in a finding of a confidential relationship are the aspects of trust and reliance in regard to transactions of property and business. Sweeney v. Eaton, supra, 486 S.W.2d at 455[3]; Wilhoit v. Fite, 341 S.W.2d 806, 813[6] (Mo.1960); Salisbury v. Gardner, supra, 515 S.W.2d at 884-885[3]; Godsy v. Godsy, 504 S.W.2d 209, 212[3] (Mo. App.1973).

The only evidence in the case of Clay’s trust in reliance on Nuel in regard to transactions of property and business relate to his dealings with the lawyer whom Nuel first consulted about preparing a deed and next saw for the purpose of having a will drawn. If Nuel had ever handled any other business affairs or transactions of property for Clay, the record does not show it. While Nuel apparently had possession of Clay’s deeds when he first visited the lawyer and had possession of the will at times after it was executed, the evidence indicates these documents were usually kept by Nuel’s mother (Clay’s sister-in-law) in a locked trunk at her home. The testimony apparently given credence by the trial court was to the effect that the disposition of the property as affected by the will was what Clay truly wanted and that Nuel exerted no more influence than did the other heirs. Moreover, there was an abundance of testimony that prior to, at the time of and after the execution of the will Clay expressed a desire that Nuel have the land and that he didn’t “owe my brothers nothing.” The trial court found there was no confidential relationship between Clay and Nuel. This absent element mandates a finding of no presumption of undue influence and plaintiffs’ burden of proving undue influence without aid of the presumption is indeed a difficult one. As has been done with all other issues presented on appeal, we hold that the trial court’s ruling that the will was not executed under Nuel’s undue influence was based upon substantial evidence.

The judgment nisi is affirmed.

All concur.

      . The matter on appeal comes to the writer of this opinion by way of reassignment.

      . These, generally, are the requirements for testamentary capacity. Lewis v. McCullough, 413 S.W.2d 499, 505 (Mo.1967); Sturm v. Routh, 373 S.W.2d 922, 928[3] (Mo.1964); Crum v. Crum, 231 Mo. 626, 638, 132 S.W. 1070, 1073[4] (1910); Page on Wills (Bowe-Parker Rev.) § 12.17, at pp. 598-599; MAI 15.01.

      . This conclusion ignores the possibility that a testator may have been competent at the time of making the will and later have been incompetent when he undertook to revoke the will or vice versa. This possibility has not been suggested in the instant case but should not be overlooked if facts make it applicable.

      . The presumption of undue influence may be proved by circumstantial as well as by direct evidence. Sweeney v. Eaton, 486 S.W.2d 453, 455[1] (Mo. 1972); Wilhoit v. Fite, 341 S.W.2d 806, 813[2] (Mo.1960).


text:
    In re MARRIAGE OF Vermilia Kaye ROEDEL, Petitioner-Respondent, and James Lee Roedel, Appellant.
    No. 38021.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 19, 1977.

      Hale W. Brown, Kirkwood, for appellant.
    Friedman & Fredericks, Harry Freder-icks, Clayton, for petitioner-respondent.
   DOWD, Judge.

Appellant, James Roedel, appeals from the trial court’s modification of a child custody order.

Appellant’s marriage to respondent, Ver-milia Roedel, was dissolved on January 20, 1975. By consent, appellant was awarded primary custody of the parties’ minor son, Jason. Respondent was awarded temporary custody of Jason 2 full weekends each month, a full week during the summer, and one week during the Christmas holidays. At the time the dissolution decree was entered, both parties lived in the St. Louis area.

Approximately eleven months after the original decree, respondent sought modification of the custody award after she moved to Columbus, Ohio. After hearing, the court modified the original custody order. Respondent was awarded temporary custody of Jason for 4 consecutive weeks during summer vacation, one week during Christmas vacation, and the third weekend in the remaining 10 months. It is contemplated that the 5 year old child would fly unattended to Columbus, Ohio to carry out the modified custody award. Respondent was to arrange transportation to and from Columbus, Ohio, giving reasonable notice to appellant, not less than 30 days notice in the case of the summer and Christmas visits. Appellant was ordered to pay $250.00 per year in the nature of child support for time Jason spent with his mother. Appellant was also ordered to pay $50 for each month respondent had actual custody of Jason, for transportation costs, not to exceed $600 per year.

1 On appeal, appellant argues that the modification of the original child custody order was erroneous for three reasons. Appellant alleges that the change in respondent’s temporary custody was not based upon a substantial change in conditions since entry of the original decree and that the change was not in the best interest of the child. Further, appellant alleges that the court erred in ordering appellant to pay a portion of the child’s transportation costs because respondent is responsible for creating the situation necessitating payment of transportation costs.

We first consider whether the court erred in modifying respondent’s temporary custody award. In order to modify custody, the court must find that (1) a change in conditions has occurred since entry of the prior custody order and (2) a modification is necessary to serve the best interests of the child. § 452.410 RSMo Supp. 1973. We review the trial court’s determination upon both the law and the evidence, giving due regard to the trial court’s superior ability to judge the credibility of the witnesses; and we will sustain the trial court’s determination unless it erroneously declares or applies the law, is not supported by substantial evidence, or is against the weight of the evidence. If the trial court erred, we enter such judgment as the trial court should have entered. Blessing v. Blessing, 539 S.W.2d 699, 702[l-2] (Mo.App.1976).

We believe that the trial court’s modification of custody is not supported by substantial evidence and is erroneous. It is clear that conditions have changed since entry of the original custody order. Respondent has moved from St. Louis to Columbus, Ohio. However, we believe that the trial court’s finding that the child’s best interests are served by the modification permitting frequent trips to Columbus, Ohio is not supported by the evidence. In order to visit his mother under the modified decree, Jason, a five-year-old child, will have to fly unattended on a commercial airline, probably on a lay-over flight. The airline requires a waiver to be signed by the parent before accepting the unattended child. We cannot agree with the trial court that flying 12 times a year under these circumstances is in the best interest of a child of tender years. Such frequent flights will undoubtedly be disruptive and upsetting to a young child. The stability of the child is an important factor to consider in deciding custody issues. Johnson v. Johnson, 526 S.W.2d 33, 37[8] (Mo.App.1975). The modification of respondent’s temporary custody to permit Jason to fly unattended to Columbus, Ohio the third weekend of 10 months of the year is not conducive to the stability of the child and is reversed.

However, we agree with the trial court that Jason’s best interests are served by other portions of the order modifying respondent’s temporary custody. No evidence was presented indicating that respondent is an unfit custodian, and it was admitted that Jason loves his mother. It is in the best interest of the child to receive the benefit of contact with both parents. Johnson v. Johnson, supra. Therefore, those portions of the modification order permitting Jason to visit his mother at Christmas and during summer vacation are affirmed. That portion of the trial court’s modification order granting respondent temporary custody the third weekend of the remaining months of the year is affirmed provided that Jason does not fly unattended to Columbus, Ohio.

Appellant also complains the trial court erred in requiring him to pay a portion of Jason’s transportation expenses. Because the argument section of appellant’s brief fails to develop his contention and because appellant cites no authority in support of this point, appellant’s contention is deemed abandoned. State v. Schulten, 529 S.W.2d 432, 433[2, 4] (Mo.App.1975); Bopp v. Spainhower, 519 S.W.2d 281, 286[7] (Mo.banc 1975).

Nevertheless, the disposition made by this court on appeal requires an adjustment to the portion of the modification order requiring appellant to pay a portion of Jason's travelling expenses. Respondent testified that each trip to Columbus would cost approximately $100. The trial court ordered appellant to pay $50 toward Jason’s transportation costs for each of the 12 scheduled visits actually made during each year. The order should be changed to require appellant to pay $50 toward Jason’s transportation costs for the Christmas and summer visits.

The trial court is ordered to enter judgment consistent with this opinion.

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

      . At the hearing, respondent admitted she would have to pay adult fares for Jason to fly to Columbus and that it would be “simple” for her to fly to St. Louis.


author: WEIER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald Delane OWENS, Defendant-Appellant.
    No. 37753.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 19, 1977.

      Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   WEIER, Judge.

Defendant Ronald Delane Owens was found guilty by jury of robbery first degree. His punishment was assessed by the jury at seven years in the custody of the Department of Corrections. At his trial he was represented by retained counsel. A brief statement of the facts will illuminate the points relied on in this appeal.

During the early morning of January 5, 1974, shortly after midnight, Durward Edwards had fallen asleep while watching his television. He had just awakened and started to turn off his television set when he heard a knock at the door. He opened the door to find David Melton and a friend of Melton’s who were allowed in Edwards’ apartment. Edwards had had some acquaintance with Melton before this time and he gave them some food when requested. After they left they went to Owens’ apartment and informed Owens that Edwards had a gun. Defendant then went to Edwards’ apartment by himself. When he knocked at the door Edwards came to open it and was carrying a .38 gauge Smith and Wesson handgun. Defendant Owens asked Edwards if he could use his telephone. Edwards showed the pistol to defendant Owens when he requested to see it and the defendant at that time grabbed it. Owens then backed to the door, raised the weapon to his eye while pointing it toward Edwards and told him, “you know what is in this” or words to that effect and then backed out the door. Edwards had previously informed Owens that he had high velocity shells in the weapon. In about fifteen or twenty minutes four men wearing sacks on their heads with cut out holes for their eyes, nose and mouth, entered the apartment. Edwards recognized the shoes on one of the men as being the same shoes that had been on David Melton, one of those who had visited him on the first occasion.’ He also observed a tattoo on this individual similar to and in the same location on his hand as the one upon Melton. One of the group informed Edwards that they wanted his money or his life and then proceeded to take his television set, a rifle, some $500 in cash, .38 caliber shells and a cassette player. During the time that these four men were there, they threatened Edwards several times, pointed a pistol at his head and at one time shot a hole in the wall just above his head. The next day the cartridges, the television set and Edwards' pistol were found in the apartment of defendant Owens.

The original information filed in this case charged defendant Owens with robbing Edwards of the .38 caliber pistol. The first amended information filed on November 22, 1974, added the words “acting with others” to the charge. The second amended information, filed on February 18,1975, the day the trial began, charged that defendant acting with others did not only rob Edwards of his .38 caliber pistol but also of $500, the television, hand tools and a tape cassette player. Defendant’s first contention on appeal charges error on the part of the trial court in permitting the filing of this second amended information on the eve of trial because it charged an offense additional to and different from that charged in the original information and thereby prejudiced the appellant in the preparation of his defense. Defendant does not complain of the addition of “acting with others” because it does not charge a different offense. State v. West, 484 S.W.2d 191, 195[4] (Mo.1972). But defendant does contend that by adding the list of items taken from the victim in the second amended information in addition to the .38 caliber pistol originally alleged to have been taken from the victim, this second amended information in effect charges the defendant with two robberies, one that occurred when defendant took the victim’s weapon and then again when the other items were taken by the four men who came masked to the victim’s apartment.

. This charge of duplicity in the information is not meritorious. The acts of the defendant are connected by time, place and purpose to the commission of one crime with which he is charged. The charge of robbing the victim of the various items taken from him at that time and place, therefore, may be set out in one count of an information or indictment. State v. Sehmittzehe, 3 S.W.2d 235, 238[2] (Mo.1928). As an example, in State v. Nieuhaus, 217 Mo. 332,117 S.W. 73, 77 (1909), the defendant was prosecuted for feloniously wounding a woman. In the indictment he was charged with assaulting the victim with a rawhide whip and a hot iron stove-lid lifter. It appeared from the evidence that the whipping occurred before the assault with the stove-lid lifter. In commenting upon the claim of duplicity the court stated: “. . . we do not think that the assault became two different offenses from the mere lapse of time which intervened between the whipping with the cowhide and the time taken to go to the kitchen and return with the stove-lid lifter, and the continuation thereof immediately upon the return of the defendant from the kitchen. In our opinion it was one continuous assault, if the evidence of the prosecutrix is to be believed.” Nieuhaus, 117 S.W. at page 77. In State v. McDonald, 67 Mo. 13, a case relied on by the court in Nieuhaus, an assault began in a blacksmith shop with the use of a hammer or a pair of tongs. This was interrupted by other parties. After the victim left the blacksmith shop, the defendant picked up an ax handle and pursued the victim some seventy-five yards from the shop and struck him with the handle. The blow with the ax handle was held to be a continuation of the assault which commenced in the blacksmith shop.

Here the information charged the taking of the handgun and the other property of Edwards as parts of a single robbery. This was the theory that the State used in its prosecution and was the theory upon which the defendant was tried and convicted. The evidence supports this view of the facts. Melton, who first visited Edwards with a friend, went to Owens’ apartment after he left Edwards. In response to what he told Owens, Owens then went downstairs to Edwards’ apartment. There he took the pistol which in turn was used by one of four men, who within a matter of minutes came to Edwards’ apartment and took the rest of the property. Some of this property along with the pistol was found in Owens’ apartment the day after the robbery took place. This is evidence of acts which were component parts of a continuous transaction committed by the same person so close in time that they constituted a single offense.

Looking at this case from a different standpoint, if defendant had been separately charged for robbing the victim at the same time and place with multiple counts of the information differing only in the property taken, the information would probably be subject to attack for splitting a single charge. State v. Moton, 476 S.W.2d 785, 790 (Mo.1972).

As to the charge of prejudice to the defendant in the preparation of his defense, a bill of particulars filed January 27, 1975, gave information concerning the additional items taken other than the handgun together with the fact of the return visit to the victim’s apartment. The second amended information was filed and trial began on February 18, 1975, well after the defendant’s counsel received such additional information. With this advance notice, we do not find any prejudice to the defendant.

Defendant’s second point on appeal contends that the trial court erred in failing to instruct the jury upon the lesser included offense of stealing from the person in that by so doing defendant’s rights to trial by jury and due process secured by the Sixth and Fourteenth Amendments of the Constitution of the United States and by Article I, Sections 22(a) and 10, Constitution of Missouri as amended 1970, were abridged. The objection made by counsel to the failure of the court in giving an instruction upon the offense of stealing from the person was made at the time that the conference was held in the court’s chambers with respect to the marking and giving of instructions. The objection made no reference to any abridgment of defendant’s constitutional rights. When one believes his constitutional rights have been violated, he should raise an objection at the earliest opportunity and failure to do so amounts to a waiver of the objection. Here no reference was made to a violation of constitutional rights at the time the instruction was given and no motion for new trial was filed. Failure to object at the first appropriate time constitutes a waiver and we will not entertain the advancement of such a theory at this time on appeal. State v. Bizzle, 500 S.W.2d 259, 263[7] (Mo.App. 1973).

The judgment is affirmed.

KELLY, P. J., and GUNN, J., concur.