author: BARDGETT, Judge.

text:
    Blanche RICE, Plaintiff-Respondent, v. Honorable Virgil H. LUCAS, Magistrate of Division 2 of the Magistrate Court, City of St. Louis, and Honorable Arthur Miorelli, Magistrate of the Assignment Division of the Magistrate Court of the City of St. Louis, and Moro Investment Company, a corporation, a/k/a Silverblatt Rental Company, Defendants, and John C. Danforth, Attorney General, Intervenor-Defendant-Appellant.
    No. 59875.
    Supreme Court of Missouri, En Banc.
    Jan. 9, 1978.
    Rehearing Denied Feb. 8, 1978.

      John D. Ashcroft, Atty. Gen., Jefferson City, David L. Baylard, Asst. Atty. Gen., for intervenor-defendant-appellant.
    Stuart R. Berkowitz, The Legal Aid Society, St. Louis, for plaintiff-respondent.
   BARDGETT, Judge.

This is an appeal from a judgment of the circuit court whereby a magistrate judge in St. Louis was ordered to afford a tenant (defendant) a jury trial in a ease brought by a landlord (plaintiff) pursuant to see. 535.-010 et seq., RSMo 1969. The circuit court declared the provision of sec. 535.040, RSMo 1969, which prescribes that a magistrate shall hear the cause without a jury to be in conflict with the civil-jury-trial provision of art. 1, sec. 22(a), Mo.Const. This court has jurisdiction of the appeal, art. 5, sec. 3, Mo.Const.

The facts are not in dispute. Blanche Rice (tenant) occupied a housing unit as a tenant at will under an oral month-to-month arrangement with Moro Investment Company, also known as Silverblatt Rental Company (landlord). The rent was $55 per month. On November 21, 1975, the landlord brought suit against the tenant alleging the tenant had not paid her rent from October 12, 1975, and that $110 was owed. The prayer sought judgment for the rent and restitution of the premises with costs.

The tenant filed an answer in which, after admitting a rental of the premises, she denied generally the other allegations of the landlord’s petition and then pleaded: “Defendant admits that she failed to pay the amounts of rent alleged in the Petition to have been due. Defendant [tenant] alleges, however, that said rent was not due and owing, because during the period for which rent was allegedly due, plaintiff [landlord] was in violation of the implied warranty of habitability.” The pleading then alleged violations of the Minimum Housing Standards Ordinance of St. Louis and asserted that the tenant had been damaged in the amount of at least $10 per day and asserted, “Because the total of said damages for the period of rent withholding exceeds the amount of rent withheld, the reasonable rent for this period is zero. Therefore, plaintiff [landlord] is entitled to no rent whatsoever.” The tenant also filed a five-count counterclaim alleging housing code violations, nuisance, and violation of the alleged implied warranty of habitability. The tenant sought actual damages on each of four counts of $20 per day since August 18, 1975, and punitive damages of $1,000 per count and specific performance under one of the counts.

At the same time the foregoing answer and counterclaim was filed, the tenant also filed a request for jury trial which was denied on January 9, 1976, by Magistrates Lucas and Miorelli, pursuant to the trial-by-court-without-a-jury provision of sec. 535.-040, RSMo 1969.

On January 13, 1976, the tenant filed a “Petition for Temporary Restraining Order, Temporary and Permanent Injunction, and Declaratory Judgment” in circuit court naming the magistrates and the landlord as defendants. This petition set forth the factual situation as between the tenant and landlord as per the pleadings in magistrate court and the tenant’s request for and denial of a jury trial by the magistrates. The tenant alleged the nonjury-trial provision of sec. 535.040, RSMo 1969, deprived plaintiff (tenant) of her right to a jury trial as guaranteed to her under art. 1, sec. 22(a), Mo.Const., and was, therefore, unconstitutional.

The tenant also alleged that should the defendants (landlord and magistrates) not be enjoined from proceeding in the magistrate case without a jury, and if judgment be rendered against her in magistrate court, she would be unable to exercise her right to a jury trial in a trial de novo on appeal to circuit court because she would be unable to post the bond required by sec. 535.110, RSMo 1969, due to her poverty. The tenant’s petition was subsequently amended to allege the bond provision of see. 535.110, RSMo 1969, for a jury trial on de novo appeal to circuit court constitutes an unreasonable condition upon the exercise of the tenant’s right to jury trial in circuit court as guaranteed by art. 1, sec. 22(a), Mo. Const., and constitutes a denial of due process and equal protection of the laws as guaranteed by the Fourteenth Amendment to the U.S. Constitution.

Although the tenant sought a declaration that the nonjury-trial provision of sec. 535.-040, RSMo 1969, was violative of art. 1, sec. 22(a), Mo.Const., or alternatively that the bond requirement of sec. 535.110, RSMo 1969, constituted an unreasonable burden upon the tenant’s right to a jury trial on appeal to circuit court while remaining in possession of the premises, the primary relief sought by the tenant was an order which would provide her with a jury trial in magistrate court. It appears that the attorney general was notified of the action pursuant to sec. 527.110, RSMo 1969, and Rule 87.04, and subsequently became the intervenor-defendant in the case.

The tenant also sought as alternative relief an order or judgment of the circuit court which, if she lost in magistrate court, would allow her to remain in possession of the premises while her de novo appeal with a jury trial was pending in circuit court without posting a bond as required by sec. 535.110, RSMo 1969.

On January 14, 1976, the circuit court issued its preliminary writ of prohibition preventing the magistrate from taking any further action in the underlying cause and issued its show cause order to the magistrates and Moro Investment Co. On or about February 11, 1976, the attorney general intervened and became the intervenor-defendant.

•The attorneys representing the landlord in the magistrate court case, of course, undertook the nominal representation of the defendants-magistrates in the circuit court proceedings. After hearing, the circuit court issued a written opinion and the following order and judgment:

“ORDER, ADJUDGE, DECLARE AND DECREE AS FOLLOWS:

“1) That Section 535.040 R.S.Mo.1969, insofar as it denies a trial by jury to an indigent defendant, is unconstitutional and invalid and in violation of Article I Section 22(a) of the Missouri Constitution of 1945.

“2) That the preliminary Writ of Prohibition issued herein on January 14,1976, commanding the Honorable Virgil H. Lucas, Magistrate presiding in Division # 2 of the Magistrate Court of St. Louis, Missouri, from proceeding further without a jury in Cause No. 14011, wherein Silverblatt Rental Company is plaintiff and Blanche Rice is defendant, be and the same is hereby made absolute.

“3) Costs herein assessed against Respondent Moro Investment Company, a corporation, a/k/a Silverblatt Rental Company.”

The question of the validity of the bond provision of sec. 535.110, RSMo 1969, was not decided because the foregoing judgment made such a ruling unnecessary and, as the circuit court noted, the facts of this case do not yet present that issue for decision.

The appellant attorney general contends that the circuit court erred in ruling that sec. 535.040, RSMo 1969, contravenes art. 1, sec. 22(a), Mo.Const., insofar as it denies a jury trial to an indigent defendant because: (A) A proceeding brought pursuant to chapter 535, RSMo 1969, was unknown at common law; consequently, art. 1, sec. 22(a), Mo.Const., does not require that a jury trial be afforded a party to such a proceeding. (B) Even if there existed a right to a jury trial in the equivalent of a chapter 535 proceeding at common law, sec. 535.110, RSMo 1969, as most recently construed by this court, saves the constitutionality of sec. 535.040, RSMo 1969.

In response, the respondent tenant asserts that art. 1, see. 22(a), Mo.Const., preserves the right to trial by jury in a landlord’s action under chapter 535 for nonpayment of rent.

The reason the issue arises is because the action under chapter 535 is filed in magistrate, not circuit, court. All parties agree that if this case were to reach circuit court by reason of transfer or certification prior to judgment in magistrate court, or by appeal to circuit court after judgment in magistrate court, both parties would be entitled to a trial by jury.

The general provision as to jury trials in magistrate court affords either party a right to jury trial. Sec. 517.630, RSMo 1969. The reason no jury trial is afforded in this particular action in magistrate court is because sec. 535.040, RSMo 1969, provides in part: “Upon the return of the summons executed, the magistrate shall proceed to hear the cause without a jury, and . . .”

The question, therefore, is whether or not the legislature had the power to deny a jury trial in a suit brought in magistrate court pursuant to sec. 535.020, RSMo 1969, in view of art. 1, sec. 22(a), Mo.Const., which provides: “That the right of trial by jury as heretofore enjoyed shall remain inviolate; provided that a jury for the trial of criminal and civil cases in courts not of record may consist of less than twelve citizens as may be prescribed by law, and a two-thirds majority of such number concurring may render a verdict in all civil cases; that in all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict; and that in every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury.”

The original civil-jury-trial provision in our 1820 constitution provided in art. 13, sec. 8: “That the right of trial by jury shall remain inviolate.” As early as 1822 a question arose with respect to the right of civil trial by jury in circuit court. Bank of Missouri v. Anderson, 1 Mo. 244 (1822), was an appeal from a proceeding in circuit court, which “by motion, in a summary way, [sought] to recover judgment on certain bank notes, which had been presented to the Bank for specie payment, and refused.” A certain section of the bank charter (a legislative act) gave the remedy in a summary way on motion. The bank demanded trial by jury, which was refused, and the court entered judgment for the amount of the notes. On appeal the bank claimed error in the denial of a jury trial, and the court stated at 244 — 45:

“It is to be supposed, the Legislature which passed this Bank charter, knew what the law was, then in force, relative to jury trials. If they did, the result will be, that if the law then was, that either party should have a jury trial if demanded, then if the Legislature, by the Bank charter, intend otherwise, they would have said so expressly; this they have not done. By the English law, a trial by motion dispenses with writ and declaration, and the words ‘in a summary way,’ dispense with all sort cf formal pleading, and a jury also; and, in this case, it is contended, the course must be the same. This doctrine would be good in England, and in this State, if it were not for a provision in our constitution, which says, the trial by jury shall remain inviolate; the meaning of which is, that with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men; they must have a good fame, possess integrity and intelligence; they must not be aliens, vagrants, outlaws, nor under conviction of crimes. They must all be under oath when they try a fact or cause; they must all agree in their verdict; and the right to have disputed facts tried by such a jury, and in such a manner is to remain inviolate. It is the right of all parties who are capable of being sued, and if this right is or can be limited or restrained by the Legislature, because the proceeding is summary, then every case may be required to proceed in the same way, and so the jury trial be entirely undermined and lost; and furthermore, the act of the Legislature of May, 1807, says, that in all cases, either party, in any suit, if he demands it before the trial, shall have a trial by jury, (see Geyer’s Digest, 256); here the motion was undoubtedly a suit, and the jury trial was demanded and refused. The Bank was a party, and it had a right to have the facts, whether a demand of specie payment was made, and whether it was refused, tried by a jury. This was refused, and this was error.”

In Vaughn v. Scade, 30 Mo. 600 (1860), the court reaffirmed Bank of Missouri v. Anderson, supra, with respect to trials in a court of record having common-law jurisdiction and proceeding according to the course of the common law, but also said at 604-605:

“We are of the opinion that, as the court of the law commissioner is a court of record, having common law jurisdiction and proceeding according to the course of the common law, that in trials in that court a party is entitled to a jury of twelve men when he demands it; .

“In coming to the conclusion that a jury in the court of the law commissioner must consist of twelve men, we do not wish it to be understood that it follows as a matter of course that a jury in a justice’s court must likewise consist of twelve men. We are of the opinion that justices’ courts, not being courts of record, are not within the constitutional provision, and that it would be competent for the legislature to make all the causes in such courts triable by the justice alone. Juries did not form a part of the machinery of such tribunals at the common law. It is not disputed that the article in the bill of rights securing the right to a trial by jury did not extend to proceedings in courts of chancery. The legislature in its discretion may give assistance to justices in the exercise of their jurisdiction, and that may be any number of men that is deemed expedient. Moreover, from the judgments in justices’ courts there is an appeal to the courts of common law where the parties are entitled to a trial by jury unless it is waived. (Emerick v. Harris, 1 Binn. 416; Work v. The State of Ohio, 2 Ohio St. 296; Norton v. McLeary, 8 Ohio, N.S., 205.)”

In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410 (1933), held the right to a jury trial was preserved by the original and subsequent constitutions of Missouri and to be that which existed at the time of the adoption of the 1820 constitution. The court stated at 414: “ . . . Also, in City of St. Louis v. Smith [325 Mo. 471, 30 S.W.2d 729], quoting from the Bates [Bates v. Comstock Realty Co., 306 Mo. 312, 267 S.W. 641] and Hickox [Hickox v. McKinley, 311 Mo. 234, 278 S.W. 671] Cases, this court further said: ‘If the right to a jury trial exists, it is by virtue of the Constitution in force at the time, whether it be that of 1820 or 1865, which merely guaranteed the continuance of the common law right and that right the Constitution of 1875 preserves but does not extend.’ The proper rule of construction, therefore, undoubtedly, is that the Constitution of 1875 preserves the right of trial by jury, as that right came from the common law or the territorial statutes, in exactly the same status as was guaranteed under the two preceding Constitutions, that is: It is not the particular statutory method of procedure in force in 1875 which is guaranteed, but the procedure which the Legislature was authorized to adopt under the previous Constitutions. Likewise, it only prevents the Legislature from adopting procedure limiting the right of trial by jury which it was prevented from adopting by this provision in the bill of rights of the two previous Constitutions.”

The question of whether or not a defendant in an action under secs. 6392, 6393, and 6394, RSMo 1889 (now chapter 535), was entitled to a jury trial in magistrate court was decided in State ex rel. K. C. Auditorium Co. v. Allen, 45 Mo.App. 551 (1891). There the lessor K. C. Auditorium sued the lessee, Crawford, in magistrate court alleging unpaid rent of seven months in the amount of $4,088.33 and seeking possession of the premises. No money judgment was requested. The magistrate sustained the defendant lessee’s request for a jury and the lessor filed a petition for writ of prohibition in the court of appeals seeking an order prohibiting the magistrate from proceeding with a jury trial. The court held that the statute did not authorize a jury trial saying at 564-565: “In courts of the class to which justices of the peace belong, and which do not exercise jurisdiction according to the course of the common law, it is safe to say that a jury will not be authorized for the trial of causes, unless it is required by legislative enactment. In summary proceedings, in such courts, there is no doubt in our minds that, unless the intention to provide a jury for the trial of such causes is gleaned from the statutes, none can be had. Gear’s Lan. & Ten., sec. 199. The jury, as known to the common law, is not a part of the legal machinery of a justice of the peace, unless made so by statute. Vaughn v. Scade, 30 Mo. 600. The legislature may provide for the trial of the causes in such courts without a jury.”

And at 566-567, the court of appeals stated:

“But it is urged with much plausible force that the present constitution of this state has made material alterations in the jury law. The constitution as it was and as it is, we here set out; the italics showing the changes made: ‘That the right of trial by jury shall remain inviolate.’ Const.Mo. 1820, art. 13, sec. 8; the same in Const. 1865, art. 1, sec. 12. ‘The right of trial by jury, as heretofore enjoined, shall remain inviolate; but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men, as may be prescribed by law.’ Const. 1875, art. 2, sec. 28. Respondent insists that while formerly the provision did not apply to inferior courts not of record, and not proceeding according to the course of the common law, yet that the additional clause incorporated in the new constitution makes it now obligatory to call a jury in such courts in all cases when demanded. In other words, that the right of trial by jury is now guaranteed in such cases. It cannot be well claimed that the present constitution does more than recognize the fact that in courts not of record juries are generally provided for by statute law; that being true, express authority is given to compose them of less number than the common-law jury of twelve men. To say that the- constitution above quoted has declared that there shall be a jury trial in all inferior courts not of record, including justices of the peace and police courts of cities, and that the legislative acts and charters and ordinances which do not provide for juries are unconstitutional, is a mere assertion; there can be no question involved in such statement.

“But if we should concede that the case now pending before the justice belongs to the class of ‘civil cases in courts not of record,’ as contemplated by the constitution, a matter we need not combat or approve, the point must yet be ruled against respondent. For notwithstanding the statute in question does not provide for a jury trial, yet it does provide, without unreasonable restriction, for an appeal to a court where a jury trial may be had. Sec. 6400. When such is the ease, the constitution is not only not violated, but the mode and manner of securing the constitutional right is pointed out. City of Marshall v. Standard, 24 Mo.App. 193 [192]; 1 Bishop, Crim.Pro., sec. 893; 1 Dillon, Mun.Corp., sec. 439.”

Magistrate courts are the successors to justices of peace courts and since 1945 have been “courts of record”, (sec. 476.010, RSMo Supp.1975, and sec. 517.050, RSMo 1969), but still do not proceed according to the course of the common law. Such courts are limited to the jurisdiction and powers set forth in the statutes. State ex rel. Walker v. Stussie, 529 S.W.2d 159, 160 (Mo. banc 1975); State v. Anderson, 413 S.W.2d 161, 162 (Mo.1967); State ex rel. Auto Finance Co. v. Collins, 496 S.W.2d 827, 834 (Mo. banc 1973). Magistrate courts which displaced justices of the peace courts were created by art. 5, sec. 1, Mo.Const. Art. 5, sec. 20, Mo.Const., requires that, until otherwise provided by law, practice procedures, administration and jurisdiction of magistrate courts shall be as then (1945) provided for justices of the peace. The 63d General Assembly (1945) enacted numerous laws relating to magistrate courts but these laws basically were reenactments of RSMo 1939 relating to justices of the peace. See Historical Note under sec. 482.010, RSMo 1969. Subsequent legislation has increased monetary jurisdiction of magistrate courts and authorized circuit courts to assign certain circuit court matters to magistrate judges (see Laws of Mo. 1975-76, pp. 754-762, and C.C.S.H.B. 1317 and 1098), and have authorized the transfer of magistrate cases to circuit courts upon certain conditions (sec. 517.240, RSMo 1969). However, the statutory law pertaining to the power of a magistrate with respect to magistrate cases has not been changed. These courts still do not proceed according to the course of the common law. Magistrates cannot direct a verdict in a jury case for insufficiency of evidence because the jury, in magistrate cases, is the sole judge of the law and the evidence; nor can a magistrate set aside a verdict or nonsuit except where the nonsuit is entered on account of absence of the plaintiff. State ex rel. Schonhorst v. Cline, 85 Mo.App. 628, 632 (1900). Nor can a magistrate set aside a jury verdict and grant a new trial. The dissatisfied party may obtain a complete new trial on appeal to the circuit court, Bartling v. Jamison, 44 Mo. 141, 144-145 (1869). See also State ex rel. Schurtz v. Cowan, 72 S.W.2d 800 (Mo.App.1934); Lehmer v. Smith, 220 Mo.App. 251, 284 S.W. 167 (1926). In Bradley v. Woerner, 46 Mo.App. 371 (1891), the petitioner claimed to be the widow of one Patrick Bradley, and, as such, filed a claim in the probate court of the city of St. Louis for a widow’s allowance and demanded a jury trial which the respondent denied. The probate court was and is a court of record, but the denial of jury trial was upheld on the basis that the statute, sec. 2181, RSMo 1889 (now included in sec. 510.180 et seq., “Trial Procedure”) which granted a jury trial in an action for the recovery of money was applicable only to courts of record possessing common-law jurisdiction.

As noted supra, it is the tenant’s contention that the constitution of Missouri guaranteed a jury trial in this type of case. But, as shown above, the civil-jury-trial provision of the constitutions of Missouri have repeatedly been held to apply to courts proceeding according to the course of the common law and not to special courts, such as justice of the peace, magistrate, or probate courts, which do not proceed according to the common law regardless of the type of civil case which may be involved. Under our system, the jury trial was and is available in cases filed in magistrate court whenever, and by whatever means, the case reaches the circuit court.

Pernell v. Southall Realty Co., 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974), is the case principally relied upon by the tenant. Aside from the fact that Pernell was premised on the U.S.Const., Seventh Amendment, jury trial provision, which is not applicable to the states, it is important to recognize that the tenant in Pernell could not obtain a jury trial at all if he did not obtain it in the Superior Court of the District of Columbia. The Superior Court there is a court of general jurisdiction similar to our circuit court, and appeals therefrom go to the District of Columbia Court of Appeals on the record. See Title 11, District of Columbia Code. In Missouri, the jury trial is available on appeal from magistrate court to circuit court or whenever the case reaches circuit court by any other method and is tried there originally.

The court holds that the provision of sec. 535.040, RSMo 1969, which requires the action to be tried in magistrate court without a jury is not unconstitutional.

The second issue presented by the tenant is whether the provisions of sec. 535.110, RSMo 1969, which conditions the right to appeal upon the defendant posting a bond, “ . . . with security sufficient to secure the payment of all damages, costs and rent then due and to accrue, and with condition to stay waste” violates the equal protection clause of the United States and Missouri constitutions. It is contended that this violation takes place as to poor persons, such as the tenant here, because they do not have the money to post the bond required by the statute.

Pursuant to our decision on the first issue in this case, the cause will be remanded for further proceedings. If, on remand, a trial takes place in magistrate court, it will be without a jury; but, if the trial occurs in circuit court, it will be with a jury unless waived. Who will prevail is not now known nor can it be determined if either party will desire to appeal to the next superior court. As such, this case does not present a fact situation at this time that lends itself to adjudication of the appeal bond requirements except to consider the facial constitutionality of the bond requirements of sec. 535.110, RSMo 1969.

Essentially, tenant complains that she is denied equal protection on appeal from magistrate court because due to her poverty she will not be able to post the required bond and thereby avail herself of an appeal while maintaining her “right” to possession of the premises, whereas, a person with sufficient money could post bond and remain in possession while litigating on appeal in circuit court.

In Dixon v. Davis, 521 S.W.2d 442 (Mo.1975), this court held the bond requirement of sec. 535.110, RSMo 1969, as a prerequisite to circuit court jurisdiction of a tenant’s appeal, was unconstitutional under the equal protection clause of the constitutions of the United States and Missouri. Therefore, the tenant can appeal the adverse judgment of the magistrate court and have the cause decided in circuit court without posting bond. The appeal itself, however, would not stay execution of the judgment. If the tenant desired to remain in possession while the cause was on appeal in circuit court, then the bond requirement of sec. 535.110, RSMo 1969, would have to be met so as to stay execution. In Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), the U.S. Supreme Court held that an Oregon law which required a bond in double the rental value to be posted whenever the tenant desired to remain in possession while the cause was on appeal violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. However, the court did not hold a bond requirement which would reasonably safeguard litigated property was invalid. Rather, the court stated at 77, 92 S.Ct. at 876:

“ . . . While a State may properly take steps to insure that an appellant post adequate security before an appeal to preserve the property at issue, to guard a damage award already made, or to insure a landlord against loss of rent if the tenant remains in possession, the double-bond requirement here does not effectuate these purposes since it is unrelated to actual rent accrued or to specific damage sustained by the landlord.”

The fact that the tenants in Lindsey were poor did not cause reasonable bond requirements to be unconstitutional. The court holds that the provision of sec. 535.110, RSMo 1969, does not offend against the equal protection provision of the constitutions of Missouri or the United States and the same is not facially unconstitutional.

The order, judgment and decree of the circuit court is reversed and the cause is remanded with directions to the circuit court to quash and vacate its absolute writ of prohibition heretofore entered in this cause.

All of the Judges concur.

      . The appropriateness of this and other defenses and counterclaims raised by the tenant in this rent and possession case involving a month-to-month tenancy are not in issue in this case at this time.

      . Under sec. 517.240, RSMo 1969, the total amount of the counterclaims would authorize removal to circuit court where jury trial is available.

      . Any assumed “right” to continued possession under the tenancy in this case is extremely tenuous. Regardless of who prevails in the landlord’s “rent and possession” suit, the tenancy could be terminated at any time by either the landlord or tenant upon the giving of the statutory one-month’s notice. Sec. 441.060, RSMo 1969. Thus, the landlord could terminate the tenancy and arguably obtain possession while the cause is on appeal even though, in this type of tenancy, the tenant has posted bond as required by sec. 535.110, RSMo 1969, with respect to the particular judgment appealed from.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    KURTZ CONCRETE, INC., a Missouri Corporation, Respondent, v. James R. SPRADLING, Director of Revenue, State of Missouri, Appellant.
    No. 59919.
    Supreme Court of Missouri, En Banc.
    Jan. 9, 1978.
    Rehearing Denied Feb. 8, 1978.

      John D. Ashcroft, Atty. Gen., Jefferson City, J. Michael Davis, Asst. Atty. Gen., for appellant.
    Dale L. Rollings, St. Charles, for respondent.
   DONNELLY, Judge.

The issue on this appeal is whether hauling charges for redi-mix concrete are taxable under the Missouri Sales Tax Law. §§ 144.010-144.510, RSMo 1969. Kurtz Concrete, Inc., taxpayer, paid $9,512.77 for the period August 1, 1973, to July 31, 1974, under protest to the Department of Revenue, as sales tax on hauling charges on delivered concrete for that period.

Redi-mix concrete is composed of cement, coarse and fine aggregates, water, and possibly suitable add mixtures. Before the materials are added together in trucks at Kurtz’ plant, they are kept in bins above a weigh batcher. Approximate amounts of materials are dispensed concurrently to make up concrete of the quality and quantity specified by customers and are mixed in the concrete trucks. Once materials are added together in the truck, they cannot be returned to stock. The materials begin to mix as soon as they are added together with water in the truck. It takes approximately five minutes for the materials to become concrete after they are placed on the truck. Kurtz’ trucks are usually still at the loading bin during this five-minute mixing process. The maximum amount of time during which the concrete is in useable form is several hours. Although the concrete truck turns enroute to its destination, the turning does not contribute to the manufacturing process, and may be detrimental to some types of mixtures. The truck turns enroute to insure that the materials do not separate. If the concrete cannot be used within several hours for some reason, it must be dumped as it is useless. Once concrete is poured and sets, it is not removable without the use of a jackhammer or bulldozer. The bulk of concrete sold by Kurtz is used for footings, foundations and flatwork. When a truck reaches the jobsite it is positioned at the direction of the contractor and then dumps the concrete, usually into a form.

E. Eric Kurtz, president of Kurtz Concrete, Inc., testified that his company quotes prices upon the request of customers, 95% of which requests are verbal. Most of Kurtz’s customers are contractors. Material and delivery charges are quoted separately in every case, and are separately specified upon billing. At the time of hearing in this case, the delivery charge for concrete was $5.00 per cubic yard. Mr. Kurtz testified that computing the charge for delivery on cubic yards of concrete rather than on mileage was a more accurate means for Kurtz to recover its actual costs for delivery due to the variables involved in each job. The variables taken into account to compute the delivery charge are mileage, the time the truck is on the job, night hauling, small loads, and special equipment or maintenance required on the truck. Profit is not designed into the hauling charges, and no discount is figured on hauling charges as it may be on materials. A “part-load” charge is made for small amounts sent out in trucks. This charge is added to the regular hauling charge. About 97% of the concrete sold by Kurtz is delivered by Kurtz; only a small percentage of customers pick up their own concrete. If a customer comes with his own redi-mix truck, the materials are simply dumped into it. If the customer comes without such a truck, Kurtz mixes the concrete on its own truck, and then dumps it into the customer’s truck. There is no hauling charge when a customer picks up his own concrete.

Mr. Kurtz testified that the materials are identified as the customer’s when they are put in the truck. If a customer cancels his order before the materials are weighed and put in the truck, the order is simply can-celled and the customer is not charged. If material has already been placed in the truck, an attempt is made to resell it for the customer who originally ordered it. If the concrete on the truck cannot be diverted to another customer, it is dumped and the original customer is billed. It is understood by contractors in the industry that once the materials are on the truck the concrete is their product. If an order is cancelled and the concrete on the truck is sold to another customer who wants a lower grade, the original customer is billed for the difference in price between the higher grade concrete and the lower grade desired by the customer to whom it was diverted. The original customer also pays hauling charges. If the truck has left Kurtz’ plant and is enroute before the concrete is diverted to a second customer due to cancellation, both the original customer and the diverted-to customer may have to pay hauling charges for that load. Should a load not be delivered due to some factor other than cancellation, Mr. Kurtz did not know if the customer would be billed if the concrete had already been placed on the truck. Mr. Kurtz stated that this situation had not arisen to his knowledge. Various concrete contractors testified that it was understood within the industry that once concrete was on the truck, if an order was cancelled, the original customer had to pay for the concrete if it could not be diverted. These contractors did not know what would happen if the concrete were not delivered for some reason other than cancellation. However, one stated that he would not expect to be billed for it.

The hearing officer for the Department of Revenue made the finding that the delivery of redi-mix concrete is an integral part of the sale of concrete and that ownership or title to the concrete passes at the time of delivery on the jobsite. The hearing commissioner further found that the sale of building supplies is taxable, and that hauling charges are includable in the taxpayer’s “gross receipts” as a service incident to the sale of concrete under Section 144.010(1)(4). The circuit court reversed the findings of the Department of Revenue and found as a matter of law that title to the redi-mix concrete passes at the time of introduction of the ingredients into the rotating drum at the batch plant. The circuit court further found that the delivery of redi-mix concrete is a separate delivery service which is not a part of the sale made by petitioner to its customer and is not includable in the “gross receipts” and therefore not subject to sales tax. The circuit court found that hauling does not constitute a “sale at retail” under § 144.010(1)(9).

In our opinion, the issue in this case narrows to the question: When does title to the concrete pass from Kurtz to its customers? We reach this conclusion because of the wording of the sales tax statutes. Section 144.020 states that a tax is levied upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state. Section 144.010(1)(9) defines “sale at retail” as “any transfer made by any person engaged in business . of the ownership of, or title to, tangible personal property to the purchaser . .” Thus, the taxable event is the passage of title or ownership. Tax is levied on “gross receipts”, defined as “the total amount of the sale price of the sales at retail including any services other than charges incident to the extension of credit that are a part of such sales”. § 144.-010(1)(4). If services are rendered before title passes and these services are included in the amount of the sale price, then the charge for these services is taxable.

Appellant contends that title does not pass until Kurtz delivers the concrete to its customers because Kurtz maintains control of the concrete and the buyer is not obligated to pay until delivery is made of concrete in useable form. Thus, he contends, title and risk of loss remain in Kurtz until delivery, and, since delivery is an integral part of the sale of the concrete, hauling charges are therefore includable in gross receipts. Respondent counters with the contention that title passes when the ingredients are placed on the concrete-hauling trucks because by trade practice the purchasers then understand it is their concrete at that point and know they are obligated to pay for it. Further, respondents contend the hauling charges are not an integral part of the sale of the concrete because these charges are always segregated and no hauling charge is imposed if the concrete is not delivered.

Both appellant and respondent rely on the Uniform Commercial Code to support their contentions as to when title passes. Section 400.2-401 is the Code section on passage of title. It states:

“400.2-401 Passing of title — reservation for security — limited application of this section
“Each provision of this article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this article and matters concerning title become material the following rules apply:
“(1) Title to goods cannot pass under a contract for sale prior to their identification to the contract (section 400.2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by. this chapter. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the article on secured transactions (article 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.
“(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading
“(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but
“(b) if the contract requires delivery at destination, title passes on tender there.
“(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods,
“(a) if the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents; or
“(b) if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.
“(4) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a ‘sale’. (L.1963 p. 530 § 2-401).”

We believe the intent of the parties as to when title passes should govern here, as stated in the Code, despite the fact that Kurtz is expected to deliver useable concrete to its customers. Cases from other jurisdictions, relied on by appellant to substantiate his argument that the hauling charges are taxable, would seem to support respondent’s position on this set of facts.

In O’Kelley-Eccles Company v. State, 160 Cal.App.2d 60, 324 P.2d 683 (1958), a case decided under the Uniform Sales Act, the court held that the hauling charges on concrete blocks were taxable because the seller was obligated to deliver the blocks, although material and hauling charges were stated separately. The court stated that the passage of title depends on the intention of the parties, and that in the absence of any evidence to the contrary the court would assume title passed upon delivery. The court specifically noted that the seller failed to prove by custom or usage of trade that title passed earlier than on delivery. In the Kurtz situation, Kurtz introduced evidence that both parties to a sale considered the concrete to be the buyer’s upon the placing of the materials in the truck.

In another California case, Select Base Materials, Inc. v. Board of Equalization, 51 Cal.2d 640, 335 P.2d 672 (Banc 1959), the hauling charges for granite were held to be taxable because it was the implied intention of the parties that title did not pass until delivery. Again, there was no testimony that title passed before delivery, but witnesses stated that they were interested only in the price of the delivered granite. In the Kurtz situation, there is testimony that both parties tb a sale regarded the concrete as belonging to the customer once it was placed on the truck, at least insofar as payment then being required of the customer.

Other cases from foreign jurisdictions have likewise held hauling charges to be taxable when the delivery of materials was an integral part of the sale of materials and no contrary intention appeared between the parties that title was to pass before delivery. The case of East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala.App. 584, 233 So.2d 751 (1970), is most nearly on point to the fact situation at hand. In East Brewton, sales tax on hauling charges for sand, gravel and plant mix asphalt was in dispute. Evidence showed that the seller delivered part of its products to customers’ jobsites. The seller invoiced these sales stating separate charges for materials and delivery. Under an Alabama Department of Revenue regulation, hauling charges were designated taxable when the delivery was made by the seller. The Alabama Court of Appeals found the revenue regulation to be reasonable and held the hauling charges taxable, noting the testimony indicated that title did not pass until delivery was effected.

We believe that where the seller is to deliver the property at, or transport it to, a particular place, title ordinarily will not pass until the property is delivered to the buyer or reaches the agreed place; but this is not always true, and the title will pass notwithstanding the seller is to make such delivery if such is the intention of the parties. Since both seller and buyers here have indicated by their testimony that the buyers are required to pay for the concrete as soon as it enters the truck, we must conclude that title then passes. We hold that no sales tax is applicable to the hauling charges.

The judgment is affirmed.

All concur.


author: FINCH, Judge.

text:
    William O’DELL and Eileen O’Dell, Plaintiffs-Respondents, v. CUSTOM BUILDERS CORPORATION, Defendant-Appellant.
    No. 60062.
    Supreme Court of Missouri, En Banc.
    Jan. 9, 1978.
    Rehearing Denied Feb. 8, 1978.

      James J. Sauter, Deeba, DeStefano, Sau-ter & Herd, St. Louis, for defendant-appellant.
    William W. Eekelkamp, Jenny, Cole & Eckelkamp, Union, for plaintiffs-respondents.
   FINCH, Judge.

Plaintiffs obtained a verdict and judgment against Custom Builders Corporation (CBC) for $19,000 for breach of an implied warranty that house plans prepared for plaintiffs were fit for use in construction of a house on property owned by plaintiffs. The asserted deficiency in the plans was that they failed to provide for needed pier-ing to support footings on which foundation walls were constructed, resulting in extensive settling, cracking, and other damage to plaintiffs’ house. CBC appealed to the Missouri Court of Appeals, St. Louis District, which affirmed. That court’s opinion relied in part on a recent decision of the Missouri Court of Appeals, Kansas City District, in a case subsequently transferred to this court for decision. We ordered this case transferred and we now decide it as though here on direct appeal. Mo.Const., art. V, § 10. We affirm.

In the spring of 1972, plaintiffs, then residents of Baldwin in St. Louis County, decided to build a home on a tract which they owned near Pacific in Franklin County. They began to look for plans and were attracted by an advertisement of CBC which proclaimed that it was qualified to design and build fine homes throughout the St. Louis area. Plaintiffs visited CBC’s offices and conferred with its president, Mr. McGinnis. They told him of their plans, explaining that their property fronted on the Meramec River and they wanted to place their house at the crest of the slope which overlooked the river. McGinnis showed them a number of basic designs which could be adapted to meet their desires. They selected one and told McGinnis of the changes which they wanted incorporated.

McGinnis conveyed this information to a CBC draftsman who then prepared four pages of blueprints of the proposed house. The front page, bearing the legend “Custom Designed Especially for Mr. and Mrs. William O’Dell,” indicated that these plans were prepared in May 1972 for a house for plaintiffs at Pacific, Missouri. Page one gave the front elevation of the house. The back and two side elevations were shown on page four. Page two gave a detailed floor plan for the main (upper) floor and page three, captioned “Foundation Plan,” gave the floor plan for the lower (basement) level.

In addition to preparing the blueprints, CBC prepared a contract which plaintiffs and CBC executed on May 25,1972. It was headed “Specifications of Residence for Mr. & Mrs. Bill O’Dell, 226 Victor Ct., Baldwin, Mo. 63011 to be erected in Indian Hills, Franklin County, Missouri.” It then set out on the first four pages the building material specifications for the house shell structure which CBC was to build. Page five then provided:

“PURCHASER, ACTING AS HIS OWN GENERAL CONTRACTOR, ASSUMES THE RESPONSIBILITY FOR THE CONSTRUCTION, MATERIALS AND/OR INSTALLATION OF AND FOR THE FOLLOWING ITEMS WHICH ARE NOT INCLUDED IN THIS CONTRACT AND ANY OTHER ITEM NOT SPECIFICALLY MENTIONED:
Permits Air Conditioning
Painting Electric
Driveways Insulation
Sidewalks Drywall
Tar Flooring
Drain Tile Tile and/or Underlayment
Bath Fixtures Cabinets
Chrome Bath Accessories Built-Ins
Medicine Cabinets Vanities
Floor and Wall Tile Finish Carpentry
Finish Grading Brick
Cleaning-up Doors and Trim
Excavation Garage
Foundation Carport
Garage Concrete Porch
Basement Floor Basement Windows
Flat Concrete Aeration
Plumbing Septic Tank
Heating
“ANY ASSISTANCE GIVEN BY CUSTOM BUILDERS CORPORATION DOES NOT CONSTITUTE ANY LIABILITY ON THE PART OF THE SELLER.
“CUSTOM BUILDERS CORPORATION is not responsible for doors and trim not painted within 15 days.”

The front and back of the sixth page contained nineteen printed provisions, the last of which provided a contract price of $11,-112 for the work to be done by CBC. Page six obviously was a standard sheet regularly incorporated in contracts made by CBC. In addition, CBC furnished plaintiffs with its written estimate of costs on the various items which CBC was not to perform.

Although no written agreements were introduced, it appears that plaintiffs also entered into a contract whereby all subcontractors were to be paid by Westoak Investment Company acting as escrow and disbursing agent. Westoak was located in the same building as CBC and Mr. McGinnis also was president of it. Under the arrangement each subcontractor would submit bills directly to plaintiffs who then would approve them and authorize payment by Westoak by a voucher whereby a lien release was obtained.

Not long after the contract was signed, Mr. O’Dell called CBC and inquired about what was being done on the construction of his house. CBC then arranged for its employee Schultheis to meet O’Dell at the site and stake out the house. When they met at the site, O’Dell showed Schultheis where the property lines were and the general area where he wanted the house placed. Schultheis then used the plans to stake out the precise measurements to locate and orient the house in accordance with O’Dell’s general description.

Sometime thereafter, Mr. O’Dell visited the site where the house was to be built. He discovered that excavation for the house had been commenced and was about 90 per cent complete. The work was being done by Thomas Conn whom O’Dell then met for the first time. Although O’Dell recalled that at the time he thought that Thomas Conn worked for CBC, in fact Thomas Conn was doing business as Conn Brothers Excavation and plaintiffs subsequently paid a separate bill and obtained a lien release for the excavation from this company.

When O’Dell arrived that day, he also met for the first time Jack Conn who, with a couple of other men, was making core drills to blast away some rock which had to be removed so the excavation work could be completed. Jack Conn, d/b/a Jackson Excavating and Construction Co., had been contacted by CBC to do the blasting and also to lay the foundation. When he so informed O’Dell, the latter gave him the plans he had received from CBC for the foundation. Again, although O’Dell apparently was not aware of the lack of any legal relationship between CBC and either of the Conn brothers, he did subsequently authorize payment to Jackson Excavating for foundation work and a separately stated charge for blasting.

Jack Conn proceeded with the blasting and subsequently poured the footings and foundation walls as shown on page three of the blueprints. Part of the footings rested on rock and part on dirt, some of which was new fill placed by the excavator Thomas Conn to fill in low areas at the front of the house. Jack Conn testified that he had no knowledge of the fill because he had arrived at the site after the fill was already in place.

Construction progressed to completion, CBC performing the work for which it had contracted, and other subcontractors, arranged for by plaintiffs, doing the other work. They were paid pursuant to the arrangements made between plaintiffs and Westoak.

Soon after plaintiffs moved in, they began to notice evidence of uneven settling of the house. Doors would not close and posts supporting the deck began to shift and even fall off. This situation progressively worsened to the extent that the foundation, walls and fireplace cracked, the fireplace separated from the walls, water leaked in and damaged the lower bedroom, the deck of the house listed four to five inches, the sliding glass doors fell off the hinges if unlocked, and wind, insects and even a flying squirrel entered through the cracks. Eventually, it was determined that the foundation on the side of the house facing the river had settled approximately four inches. Mr. O’Dell called CBC and Jack Conn. CBC took no action but Conn came out and did several things to try to rectify the situation, including using metal jacks, pouring some concrete and placing some concrete blocks, but these gave only limited relief.

Finally, plaintiffs brought suit against Jack Conn, later amending to add CBC as a defendant. Their second amended petition was in three counts but they submitted only on Count III which charged breach of an implied warranty of fitness of design by CBC and breach of an implied warranty of fitness of the foundation as constructed by Jack Conn. The jury returned a verdict in favor of Conn but against CBC. Only CBC appealed. For that reason we do not consider on this appeal the case as it pertained to plaintiffs’ claim against Conn. We also do not discuss the evidence relating to the extent of plaintiffs’ damage because no issue is raised as to the amount of the verdict.

At the trial plaintiffs produced an expert witness who testified that the settling of the house was caused by a faulty foundation design. He stated that where, as here, a house is constructed partly on rock and partly on dirt, some of which is new fill, there should be piers resting on rock which support the footings on which the foundation is placed. Defendant Conn also testified that a house built partly on rock and partly on new fill would not stand up without proper piering but said that he had not known that part of the house was on new fill. He testified that he built the foundation, including the footings, as shown on the plans prepared by CBC.

As previously noted, plaintiffs sought to recover from CBC for breach of an implied warranty of design for a particular use. Their theory was that CBC as part of its contract with them sold the design of a house for use on a particular tract owned by plaintiffs on the Meramec River; that plaintiffs reasonably relied on CBC’s judgment as to the fitness of the design of the house for such use; that in fact the design was not fit for that site and hence for that use; and that plaintiffs were damaged as a result when the foundation settled and the house cracked.

CBC first contends that it was entitled to a directed verdict, saying that a warranty of fitness for a particular use may not be implied in law when, as here, it is contrary to the express terms of the contract between the two parties. CBC does not contend that it did not sell the plans to plaintiff. Rather, it says that no warranty may be implied because the contract and plans show that plaintiffs were to act as their own general contractor, that CBC was only to build the shell structure of the house, that other subcontractors arranged by plaintiffs were to do all the other work including excavation and construction of the foundation and that CBC had no responsibility for the foundation or plans therefor. In this role CBC views itself as providing plans which include a basic foundation design only incidentally to its function of constructing the shell structure.

In support of its argument on this point, CBC first refers us to certain express provisions of the contract which it contends are inconsistent with an implied warranty as asserted by plaintiffs. It points out that on page 1 of the contract the specific undertaking of CBC is to “lay shell work according to plan and be responsible for same.” It then contends that page 5 of the contract, supra, establishes that this was the only obligation assumed by CBC because the purchaser as general contractor assumed responsibility for the “construction, material and/or installation” of other specifically listed items including the foundation and excavation work.

The foregoing provisions in the contract are not inconsistent with the implied warranty which plaintiffs assert. The contrae-tual provisions as to the shell work addressed only CBC’s obligations regarding the construction it was to perform. The provisions on page 5 whereby plaintiffs assume responsibility for construction, installation and materials of the items other than the shell work might well be read to preclude plaintiffs from charging CBC with failure of a subcontractor to construct those other items including the foundation in a workmanlike manner or to use the proper materials. However, those provisions do not charge plaintiffs with the responsibility for obtaining additional plans for the foundation or inform them that such action might be necessary. Nor do the cited provisions constitute a disclaimer by CBC of the sufficiency of the foundation plan provided for use on plaintiffs’ lot.

CBC next relies on paragraph 5 on page 6 which provides:

“Purchaser assumes responsibility of location of the construction as indicated by Purchaser at the time of staking out of house. Purchaser warrants Seller that such location is within the legally defined limits of his title to the premises, and agrees to indemnify and hold harmless Seller against all claims or losses, direct or consequential, arising from any breach of the above warranty, including any attorney’s fees.”

That provision merely establishes responsibility of plaintiffs for making certain that the site staked out is within the property lines of plaintiffs’ property. It does not relate to whether plans for the house provided by CBC are adequate for that particular site and is not inconsistent with an implied warranty of fitness.

The next contractual provision relied on is paragraph 15 on page 6 which provides:

“This bid is subject to checking contour of land, and if there is any piering or rock, the purchase price does not include piering or excess rock removal, but such charges shall be charged to Purchasers.”

This section has the effect of notifying the owner that if on checking the site where the house is to be built a need for excavating rock or piering develops, the cost thereof is to be extra expense chargeable to the owner. It alerts plaintiffs that estimates for excavation and foundation will increase if rock removal or piering proves to be necessary. However, paragraph 15 does not purport to and does not have the effect of saying that plans prepared by CBC need not make provision for piering if the site is such that piering is required for the house design to be adequate.

The final provision in the contract relied on by CBC as being inconsistent with an implied warranty of fitness of the plans for a particular purpose is paragraph 16 on page 6 which provides:

“There are no promises, agreements or understandings other than those contained in this purchase contract, and no agent or salesman has any. authority to obligate Seller by any terms, stipulation or conditions not herein expressed. In the event that any changes or extras shall be reduced to writing and signed by the Purchaser and Seller.” [Sic]

This paragraph was directed at protecting against perhaps overly ambitious statements or promises by a sales representative in attempting to secure a contract with a prospective buyer, not at eliminating warranties implied as a matter of law.

In further support of its position that a verdict should have been directed, CBC argues that the contract provisions, the plans furnished and the surrounding circumstances all demonstrate (1) that CBC had no reason to know that plaintiffs would rely on and use the plans for construction of the foundation without further checking and modification as necessary and (2) that plaintiffs’ reliance on the plans as being sufficient for the foundation on that particular site was unreasonable. In addition to relying on the express contractual provisions, CBC points out that the location specified on the plans simply said Pacific, Missouri, that the plans were drawn before any personnel from CBC had visited plaintiffs’ property or had any information about its soil characteristics or requirements and that this was made evident by the fact that the plans simply gave an assumed grade with reference to the house and its foundation. Under these circumstances, says CBC, plaintiffs knew that the plans had been prepared without any site data being available to CBC and, therefore, plaintiffs could not expect that the plans furnished were sufficient without additional checking and adaptation by them, if necessary, for particular soil conditions encountered on their property.

We conclude and hold that the above factors relied on by CBC do not establish as a matter of law that CBC could not have known that plaintiffs would rely on and use the plans for construction of the foundation without further checking and modification as necessary nor that it was unreasonable for plaintiffs to rely upon the plans as being sufficient for construction of the foundation and footings on this particular site. We so conclude for several reasons.

In the first place, the details shown on the foundation plan which appeared on page three of the blueprints were such that the jury reasonably could find therefrom that plaintiffs were entitled to rely on those plans as being sufficient and that CBC could have anticipated that they would so rely. That plan gives construction details, showing that three foundation walls were to be 7'7" high and were to be 8" thick and were to be poured on 8" X 20" footings. It also calls for footings 3'4" X 7'0" X 12" under a fireplace and chimney. In addition, the back and side elevations of the house on sheet four recite that the foundation walls are to be 8" concrete. The plans also show piers to be installed to support the posts on which the deck was to be constructed. These directions and dimensions were there for some purpose and, absent some instruction or caveat to the contrary, would reasonably be deemed to be there to be followed. No directions to the contrary were given. Nowhere on these plans is there any statement to the effect that the “Foundation Plan” is not really intended as a foundation to be constructed or that plaintiffs as general contractors must make other arrangements for an adequate foundation plan. There is no statement that plans cover only the house shell which CBC is to build. Nor is there any caveat on the plans that this foundation plan was prepared without knowledge of the site and that piering may be necessary, particularly if there is fill, or that plaintiffs should take steps to determine whether piering is necessary.

The recitation on the plans that they reflected an “assumed” grade may have indicated, as CBC contends, that there would be a need to modify the plans to meet conditions encountered if the assumed grade was inaccurate and fill became necessary but that does not indicate which party was to determine whether modification was necessary. Even if the plaintiffs were aware of the need for further checking, the contract did not assign responsibility to them and they might reasonably have assumed that CBC would perform this function because it had provided the plan. Plaintiffs had no expertise in home design or of the need for such things as core drilling, piering, etc. They looked for house plans to be furnished by someone else and were attracted to CBC by its advertisements which proclaimed its expertise in designing and building fine homes. This expertise as designers was repeated on the letterhead on which page one of the contract was written. The plans themselves stated on the front page that they were “Custom Designed Especially for Mr. and Mrs. William O’Dell” for their property at Pacific, Missouri. These plans were clearly a major part of the inducement for plaintiffs to deal with CBC rather than retain an architect and then subcontract the shell work as well as the other items to be performed. We conclude that a reasonable construction of the contract and plans was that CBC, the party holding itself out as an expert in design and providing the design, would determine the necessity for modification of the design and make any changes necessary. Because the contract was somewhat ambiguous on this point, the subsequent action by CBC in sending Mr. Schul-theis to stake out the property and then arranging for the Conns to do the excavation and begin work on the foundation was highly relevant in determining the reasonableness of plaintiffs’ reliance on CBC to make any necessary modification of the foundation design as the need appeared. Thus, whether CBC should have known of the particular use for which the plaintiffs would use the plans and whether plaintiffs’ reliance on the plans as being fit for the use intended was reasonable were questions for the jury.

In further support of its argument that a verdict should have been directed, defendants cite, and rely on our decision in Smith v. Old Warson Development Co., 479 S.W.2d 795 (Mo. banc 1972), saying that it permits recovery for breach of an implied warranty only against a person who had an opportunity to observe a structural defect but failed to correct the same which then became latent. Such opportunity in this case, says CBC, belonged to the subcontractor who built the foundation, Jack Conn, not CBC. Plaintiffs also rely on our decision in that case as establishing the basis for their verdict-directing Instruction No. 3, supra, fn. 1. Actually, as discussed subsequently, Old Warson is inapplicable to the situation involved in this case.

In Old Warson we held that a common law warranty of habitability or quality will be implied in law in the sale of a new home by a builder-vendor so as to protect the purchaser against latent structural defects. Although the court’s discussion therein of the claimed implied warranty used the terms “fitness,” “quality,” “merchantability” and, ultimately, “habitability” interchangeably, it is clear that the warranty imposed in Old Warson on the builder-vendor was closely analogous to that found in § 400.2-314, which is therein termed “implied warranty of merchantability.” The citations in Old Warson to Morrow v. Caloric Appliance Corp., 372 S.W.2d 41 (Mo. banc 1963), and Hays v. Western Auto Supply Co., 405 S.W.2d 877 (Mo.1966), fully documented its premise that this warranty existed at common law and was recognized by our courts as to products prior to codification of the doctrine which became effective in 1965. Actually, the comments to § 400.-2-314 expressly state that the section was drawn from developing case law and is designed to permit further, more expansive interpretation as necessary. Essentially, both the common law warranty and the statutory codification thereof may be said to require that the product be reasonably fit for the ordinary purposes for which it is used.

It is apparent, then, that the primary significance of Old Warson lies not in its recognition of the warranty of merchantability but in its extension of the warranty by analogy to the sale of a completed new home. This analogy was based on judicial recognition of the nature of such a sale. As the court stated at 799:

“ ‘Although considered to be a “real estate” transaction because the ownership to land is transferred, the purchase of a residence is in most cases the purchase of a manufactured product — the house. The land involved is seldom the prime element in such a purchase, certainly not in the urban areas of the state. . . .

The other matter of particular significance in Old Warson is the fact that the court, after noting that the common law doctrine of merger of a sale contract into a deed sometimes has been the basis for denial of warranty recovery in the purchase of a completed house, rejected that doctrine in that case by recognizing the tort nature of the implied warranty on which recovery was permitted.

Plaintiffs’ claim is not directed against CBC as a builder-vendor nor as a seller of a house. It is predicated on the sale of the design of the house. It is not contended that the plans sold were unmerchantable. Rather, they seek recovery on the basis that they were not fit for use on the lot where plaintiffs were to build. Their theory as set forth in their instructions is based on MAI 25.03 — Breach of Warranty of Fitness for Particular Use. Fitness for a particular use is a separate concept from that of merchantability or, in the case of a new home, habitability. Therefore, Old Warson is inapplicable to this case.

Permitting recovery by plaintiffs herein requires no modification of the common law, such as was necessary in Old Warson. Previous Missouri cases have recognized a distinction between implied warranties in contracts to design and build and contracts to sell completed homes. Kennedy v. Bowling, 319 Mo. 401, 4 S.W.2d 438 (banc 1928), addressed a closely analogous situation. There the plaintiffs contracted with defendants to construct a four story building on plaintiffs’ property. They related their requirements to the defendants who employed an architect to draw specifications for the project. After the contract was signed, plaintiff related to defendants that the floors of the building would have to be capable of sustaining heavy weights because of plaintiffs’ intention to store heavy materials there. Defendants represented that the building would be sufficient for the purpose but subsequent use of the completed building proved otherwise. In analyzing the defendants’ liability the court stated the applicable rule, 4 S.W.2d at 445:

“According to plaintiffs’ evidence, defendants accepted the statements of plaintiff Kennedy that he knew nothing about the requirement for a building having the strength he desired, and defendants gave their assurance as experienced builders that the suggested and offered plans were sufficient for the purpose, and plaintiff acted upon that assurance. The evidence was competent, and the question whether defendants undertook to construct the building for a known purpose, a building which would sustain the designated weight, was one for the jury. If they represented themselves as experienced and skillful in the construction of buildings and in the designs for such buildings, and the plaintiffs relied upon their judgment, and defendants undertook the construction of the building, then the implied warranty arose that in design and workmanship the building should be reasonably fit for the purpose designated. Busch & Latta Paint Co. v. Woermann Construction Co., supra [310 Mo. 419, 276 S.W. 614]; Smith v. Clark, 58 Mo. 145; Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537, 28 L.Ed. 86; United States Wind, Engine & Pump Co. v. Manufacturers’ Automatic Sprinkler Co., 84 Mo.App. 204.”

Numerous other eases recognizing implied warranties in contracts to build are collected in Hoye v. Century Builders, 52 Wash.2d 830, 329 P.2d 474 (1958). In that case the Supreme Court of Washington found little difficulty in holding that an experienced builder who provided plans for construction of a house on a lot selected by plaintiffs warranted the sufficiency of the plans provided and that structure would therefore be fit for the purpose in view.

The only distinguishing characteristic between Kennedy and the present case is that the builder in Kennedy not only furnished the plans but built the entire structure as well. However, as indicated by the above quotation, the liability imposed was for the failure of the plans supplied to provide for adequate support in the structure and not on the failure of the builder to erect the structure in accordance with the plans. Accordingly, we hold that plaintiff here presented sufficient evidence from which a common law warranty for a particular purpose may be inferred. The court properly overruled CBC’s motion for a directed verdict.

CBC next asserts that Instruction No. 3, plaintiffs’ verdict director against CBC, was prejudicially erroneous. First, it was erroneous because the implied warranty claimed by plaintiffs did not exist. CBC’s brief says that this was so for all of the reasons urged in support of its claim that a verdict should have been directed in its favor. For the same reasons we advanced in holding that CBC was not entitled to a directed verdict, we hold that there is no merit to this attack on Instruction No. 3.

CBC next complains that Instruction No. 3 was erroneous because it directed the jury to return a verdict against CBC if the jury found that CBC sold plaintiffs an unfit “house design.” This, says CBC, gave the jury a roving commission to construe “house design” in any manner desired whereas the plaintiffs’ evidence was limited to alleged deficiency in the design of the foundation.

We reject this contention. Instruction No. 3 conforms to MAI 25.03 which directs that in paragraphs Second and Third of the instruction the article or property purchased be described. That is what plaintiffs did. They purchased a set of plans for the house, one page of which described the foundation and footings. Plaintiffs were not directed by MAI 25.03 to describe in the instruction some particular portion of the article purchased at which their complaint was directed. What plaintiffs did in this case is in harmony with what plaintiffs did in their verdict-directing instruction in Old Warson. In that ease plaintiffs complained about two rooms in the house they had purchased. Those rooms were constructed on a four-inch concrete slab which was surrounded by but not attached to the foundation walls of the house. The slab settled, causing damage for which recovery was sought. Plaintiffs’ evidence was that settling of the slab was the result of insufficient compaction of the soil. However, plaintiffs’ verdict-directing instruction submitted to the jury the question of whether the residence was reasonably suited for the use intended, not whether the two rooms complained of were suitable. Similarly, plaintiffs in this case submitted whether the house design purchased by plaintiffs was fit for the use intended. Although we can conceive of more specific formulations which would have adequately described the subject of the complaint, there could not have been any prejudice here because the evidence left no doubt as to the conduct of CBC of which plaintiffs were complaining and for which they sought to hold CBC liable.

Next, CBC complains that the instructions to the jury were in an order which prejudicially emphasized liability of CBC. This complaint is directed at the fact that (1) the verdict-directing instructions as to CBC and Jack Conn (Instructions Nos. 3 and 4) were given in reverse order to the way the parties are named in the petition and (2) CBC’s converse instruction (Instruction No. 7) was separated from the verdict-directing instruction against CBC by the verdict director against Jack Conn, the measure of damage instruction and the instruction defining ordinary care.

We find no error in the manner in which these instructions were placed before the jury. Wide discretion is vested in the trial court to determine the order of the instructions. “Except where otherwise provided in Missouri Approved Instructions, they shall be given in such order as the court shall deem advisable.” Rule 70.01(d) V.A. M.R. Where there is a prolix maze of instructions and issues the better procedure would seem to require that a converse instruction appear in relatively close proximity to the instruction it converses, but no provision of Missouri Approved Instructions requires that it follow immediately. See MAI 33.01-33.13. In this case with few and uncomplicated instructions, no prejudicial error resulted from the placement of the converse instructions.

Similarly, there is no requirement that the order of the verdict directors conform to the order in which the parties were named to the suit. CBC’s assertion that MAI 35.03 mandates a contrary result is unpersuasive. That set of instructions, which serves as an illustration for use in a three car chain collision suit, makes no reference to the order in which the parties were named but merely refers to them as Driver No. 1, Driver No. 2, and Driver No. 3, listing the verdict-directing instructions in that order. It can by no means be viewed as a mandate that verdict directors be given in the order the parties are named in the suit. Here the petition and each verdict-directing instruction sought to hold each defendant liable for the entire amount of the damages regardless of the liability of the other. The instructions did not in any way imply that one defendant was more culpable than the other or that one should be excused if the other was liable. Defendant was entitled to no more and we therefore find no prejudice.

CBC’s final allegation of error is that Instruction No. 5, governing the measure of damages, was erroneous because it made reference to a single occurrence causing injury to plaintiffs while the verdict-directing instruction against the two defendants specified two separate occurrences, i. e., faulty design and faulty construction. CBC alleges that reference to a single occurrence in the measure of damages instruction confused the jury and contributed to. the verdict of liability on the part of only one of the two defendants.

The Notes on Use accompanying MAI 4.01 state that “[t]he word ‘occurrence’ should be adequate except in cases where there is evidence that two different occurrences produced the injury with defendant being responsible for only one. In such cases counsel will need to substitute some descriptive term which will properly limit the jury to the occurrence produced by defendant.” It appears that defendant has confused “occurrence” as it is used in MAI 4.01 with differing theories of liability of separate defendants for the same occurrence. In this case, the occurrence mentioned in the evidence was the lack of proper piering of the portion of the house which rested on fill. The jury might find one, both or neither of the defendants responsible for the lack of proper support based on the conduct of each individual defendant as set forth in the separate verdict-directing instructions against them. Only after determining that either or both defendants were liable to plaintiffs under the verdict-directing instruction would the jury consider the measure of plaintiffs’ damages— in this case, all damages resulting from a failure to provide proper support for the structure.

The illustration of instructions contained in MAI 35.03 is closely analogous to the situation presented here and often presented where there are multiple defendants. It hypothesizes a suit against three defendants involved in a three car collision where three separate negligent acts are charged in three separate verdict directors. However, the measure of damages instruction is MAI 4.01 unmodified. This is because there is only one occurrence mentioned in the evidence. The occurrence is the accident itself which plaintiff claims caused injury. The occurrence clearly could have been produced by the acts of any, all or none of the defendants. However, if any or all are found to have caused the occurrence, the plaintiff’s recovery is the same and is measured by those injuries sustained in the accident regardless of the number of defendants found liable.

The only case cited by defendant in support of its allegation is Homm v. Oakes, 453 S.W.2d 679 (Mo.App.1970). That case properly held that the damage instruction was prejudicially erroneous where the evidence indicated plaintiff had suffered serious injuries in successive accidents only a month apart but did not limit the jury’s consideration of the amount of the award to injuries incurred in her collision with the defendant. Obviously, this case involved two separate occurrences and is not analogous to the case now before us. We find no error in the submission of Instruction No. 5.

The judgment is affirmed.

All concur.

      . The theory of plaintiffs’ submission was embodied in Instruction No. 3, its verdict-directing instruction against CBC, which was as follows:
      “Your verdict must be for the plaintiffs and against the defendant, Custom Builders Corporation, if you believe:
      “First, defendant, Custom Builders Corporation sold the design of the house to plaintiffs, and
      “Second, the defendant Custom Builders Corporation knew or should have known by using ordinary care of the use for which the plaintiffs purchased the design of the house, and
      “Third, plaintiffs reasonably relied upon defendant Custom Builders Corporation’s judgment as to the fitness of the design of the house for such use, and
      “Fourth, the design of the house was not fit for such use, and
      “Fifth, as a direct result plaintiffs were damaged.” MAI 25.03 (Modified)

      . All statutory references are to RSMo 1969 unless otherwise noted.

      . Laws 1963, p. 637, § 10.101.

      . Sec. 400.2-314, comment Purposes and comment 6.

      . See § 400.2-314, comment 8.

      . See also Hotchner v. Liebowits, 341 S.W.2d 319 (Mo.App.1960) (builder providing specifications held liable for breach of implied warranty that building would be constructed in a skillful and workmanlike manner where cracks appeared as a result of insufficient footings); Pitzer v. Hercher, 318 S.W.2d 397 (Mo.App.1958) (builder liable for breach of implied warranty for construction in skillful and workmanlike manner where frame improperly positioned on foundation); 17A C.J.S. Contracts § 329, p. 293.

      . “If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you believe will fairly and justly compensate the plaintiffs for any damages you believe they sustained as a direct result of the occurrence mentioned in the evidence.” MAI 4.01 (Modified)

      . See note 1, supra.

      . Plaintiffs’ verdict-directing instruction against defendant Conn provided:
      “Your verdict must be for the plaintiffs and against the defendant, Jack Conn, if you believe:
      First, defendant Jack Conn sold the foundation of the house to plaintiffs, and
      Second, defendant Jack Conn knew or should have known by using ordinary care of the use for which the plaintiffs purchased the foundation of the house, and
      Third, plaintiffs reasonably relied upon defendant Jack Conn’s judgment as to the fitness of the foundation of the house for such use, and
      Fourth, the foundation of the house was not fit for such use, and
      Fifth, as a direct result plaintiffs were damaged.” MAI 25.03 (Modified)
      The characterization of this instruction as submitting faulty construction is defendant’s.


author: HOUSER, Special Judge.

text:
    William R. HINDMAN, Appellant, v. Clifford CROUCH, Circuit Judge and the State of Missouri, Respondents.
    No. 59832.
    Supreme Court of Missouri, en banc.
    Jan. 12, 1978.
    Thomas J. Downey, Jefferson City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for respondents.
   HOUSER, Special Judge.

William R. Hindman, in the custody of the department of corrections following a' felony conviction in the Circuit Court of Webster County on a charge of assault with intent to kill with malice, filed a petition for a writ of error coram nobis during the pendency of the appeal of that conviction, alleging that the sentence was imposed in violation of his constitutional rights in that the proceedings against him were based upon a void warrant, and that the Circuit Court of Webster County lacked jurisdiction to try the charge because of fatal defects in the proceedings for change of judge and change of venue. A hearing on the petition was held at which, following oral argument the court, without hearing evidence, ruled as a matter of law against petitioner and dismissed the petition for a writ of error coram nobis. Thirteen days later the court of appeals affirmed the judgment of conviction. State v. Hindman, 543 S.W.2d 278 (Mo.App.1976). The issues raised by the petition for a writ of error coram nobis were not ruled upon on that appeal. These issues are now before us on this appeal from the order dismissing the petition for a writ of error coram nobis.

After the filing of his petition for a writ of error coram nobis petitioner filed a motion in the Circuit Court of Webster County under Rule 27.26 to vacate and set aside the aforesaid conviction. An evidentiary hearing of the 27.26 motion is set for February 3, 1978 in the Circuit Court of Webster County. A copy of the 27.26 motion, filed in this Court by the mutual consent of counsel for both parties, demonstrates that the conviction in question is attacked on numerous grounds, including that of ineffective assistance of counsel. Although the constitutional grounds above noted are alleged inferentially in support of movant’s contention that he was given ineffective assistance of counsel the 27.26 motion does not specifically allege as an independent ground of attack that the arrest warrant was void or that the circuit court lacked jurisdiction to try the case.

In promulgating Rule 27.26 this Court specifically stated in paragraph (a) thereof that the rule is intended to provide the exclusive procedure which shall be followed when a prisoner in custody seeks relief on the basis that the sentence was imposed in violation of the Constitution of this State or the United States, or that the court imposing the sentence was without jurisdiction to do so. Rule 27.26 does not suspend the rights available by a writ of error coram nobis, but rather prescribes the procedure to be followed in the enforcement of those rights (as in the case of habeas corpus [paragraph (a) above]). Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo. banc 1976). Rule 27.26 includes all relief heretofore available in any court by habeas corpus when used for the purpose of vacating and setting aside a sentence, “plus relief not available by habeas corpus,” which includes relief by way of a writ of error coram nobis.

Because of the declared exclusivity of the remedy afforded by Rule 27.26, and the provision of paragraph (c) of Rule 27.26 that the motion shall include every ground known to the prisoner for vacating and setting aside the conviction and sentence, and in the interest of trying all known grounds at the same time in one proceeding instead of trying them piecemeal, we set aside and vacate the judgment below and dismiss the petition for a writ of error coram nobis, in order to give petitioner an opportunity to file an amended motion in the 27.26 proceeding, specifically raising the constitutional issues above referred to as independent grounds for vacating and setting aside the judgment and sentence, and an opportunity to introduce the evidence allegedly available to petitioner bearing on the validity of the arrest warrant (evidence not introduced at the hearing below). It is further ordered that a certified copy of this opinion be served forthwith upon petitioner and his attorney in the 27.26 proceeding.

MORGAN, C. J., and BARDGETT, FINCH, DONNELLY, RENDLEN, SEILER, JJ., concur.

HENLEY, J., not sitting.


author: CLEMENS, Presiding Judge.

text:
    Edward Newton RANDLE, Jr., Respondent, v. Beverly Ann RANDLE, Appellant.
    No. 37490.
    Missouri Court of Appeals, St. Louis District.
    April 19, 1977.
    Motion for Rehearing or for Transfer Denied June 9, 1977.

      Vincent E. Hartigan, Jr., St. Louis, for appellant.
    Terryl W. Francis, Granite City, Ill., for respondent.
   CLEMENS, Presiding Judge.

Appellant-mother appeals from the trial court’s order changing child custody to the respondent-father.

The parties were divorced in February, 1968 and the mother was awarded custody of the year-old son. Respondent was given visitation rights during specified periods and ordered to pay for the child’s support.

In November, 1974 respondent moved to modify the decree, seeking the boy’s custody. The motion alleged the appellant-mother had told respondent she was unable to manage the child and had sent him to live with respondent’s sister in St. Louis County.

On February 7,1975 the trial court held a hearing on respondent’s motion. Although duly served appellant did not appear. Respondent testified: He is presently married to Charlotte Randle and has two children by her. Both respondent and his new wife have two years of college. He is now a route salesman for a bakery and they own their home, which has six rooms and a large backyard. He did not know the whereabouts of his son, who had been withdrawn from the private school he had been attending in St. Louis. Appellant was living in Chicago and had told him she was sending the boy to St. Louis to live with respondent’s sister because he was not happy living with her. She told respondent the boy could not live with him and he was not to “bother” the boy. The boy came to St. Louis and lived with the respondent’s sister. Respondent visited his son frequently, about four times a week, until the sister forbid him to see or phone the child. Before sending the boy from Chicago to St. Louis appellant had lived with her grandmother or aunt who “did most of the raising of [the] child.”

The court entered an interim order directing that a social study be made and reset the cause for March 21, 1975 and at that time the court continued the case to July 24, 1975. On that date appellant filed an answer and cross motion to modify. Respondent’s counsel offered evidence that appellant had been personally served with the summons at her Chicago address. He introduced an unopened letter showing her refusal to receive the court’s notice of setting. Appellant’s attorney cross examined respondent, attempting to show he had failed to send the weekly support payments as originally ordered. Respondent testified he objected to the child’s environment because “before [appellant] moved, she was staying with her aunt who was doing the majority of the raising of my child, also, not only her aunt was there, her grandmother, and there was two other adults living there.” Further, “she sent [the child] down here . she said [he] was unhappy with the situation in Chicago and she wanted him to come to St. Louis and live with my [respondent’s] sister.” Respondent testified appellant never allowed him to have any real relationship with his son nor did she permit visitation by him.

The court sustained respondent’s motion and ordered the original decree modified by transferring the boy’s custody to his father. On September 16, 1975 appellant moved to set aside the order transferring custody. September 22, 1975 appellant filed affidavits tending to explain why she had failed to appear for the original hearing.

October 10, 1975 the court heard appellant’s motion to set aside the custody transfer order. Appellant testified: She lives in Chicago and works for Pan American Airlines, earning an annual $10,500 salary. She had sent the boy to St. Louis to live with her sister-in-law so he could go to school with his cousin. The trial court overruled appellant’s motion.

Appellant contends on appeal here that respondent-father failed to plead or prove a change of conditions warranting a transfer of custody.

In reviewing this case we must sustain the trial court’s decision 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. Murphy v. Carron, 536 S.W.2d 30[1] (Mo.1976). We give deference to the conclusion reached by the trial court.

Appellant argues there can be no change of custody except upon a showing of changed circumstances which have occurred after the original award of custody. McFadden v. McFadden, 509 S.W.2d 795 (Mo.App.1974). Custody should be transferred only when the change of conditions is such that the best interests of the child warrants it. Klaus v. Klaus, 509 S.W.2d 479[5] (Mo.App.1974). The burden of showing a change in circumstances warranting a transfer of custody falls on the party who seeks modification. E.C.S. v. J.D.L., 529 S.W.2d 423[2] (Mo.App.1975). And, the party originally awarded custody is prima facie capable of having custody. Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974).

We now consider appellant’s challenge to the changes in circumstances presented to the trial court. Respondent testified he has remarried and has two sons by this marriage, that he is regularly employed and owns his home; his present wife is not employed and stays home to care for their two children. Whether these changes in the father’s circumstances can now be considered in the modification request is uncertain. The new Missouri Dissolution of Marriage Statute (§ 452.300-452.415, RSMo. Supp.1973), which applies here, provides in § 452.410 that “The court shall not modify a prior custody decree unless it finds . that a change has occurred in the circumstances of the child or his custodian . . ” (emphasis added). This statute standing alone would not seem to permit consideration of the changes in the party seeking modification. However, several recent decisions have concluded this section codifies the long existing decisions in Missouri and they are still authoritative. In re Marriage of Cook, 532 S.W.2d 833 (Mo.App.1975); Kanady v. Kanady, 527 S.W.2d 704[3] (Mo.App.1975).

These changes in respondent’s circumstances notwithstanding, we look to those concerning appellant and the child. She had moved with her child to Chicago. It is ordinarily against the policy of the law to move a minor child to another jurisdiction without judicial approval but if the child’s best interests are thereby served, such removal may be judicially approved. Northrup v. Sieve, 517 S.W.2d 470[1] (Mo.App.1974).

Appellant eventually sent the son back to St. Louis to live with respondent’s sister. She told appellant the boy could not live with him, but he visited often with his son at his sister’s home and enjoye'd a good relationship with him until the sister told him not to phone or see the boy. When respondent filed the motion to modify the boy was withdrawn from school in St. Louis. Thereafter, respondent did not know his son’s whereabouts and was deprived of his visitation rights. Appellant claims she sent her son to St. Louis because she thought it would be a good idea for him to go to school with his cousin. Respondent testified that had the child been in his custody, he would have had him in the same school.

It is well established that “as respects the right to custody, the natural parent has legal preference over all other persons (grandmothers included) . . . In re J_, 357 S.W.2d 197[1] (Mo.App.1962). If the mother is employed and gone from the home as is the father, she has no more part in training and helping in the child’s development than the employed father and if everything else is equal she has no better claim when custody is at issue. Stanfield v. Stanfield, 435 S.W.2d 690[5] (Mo.App.1968). Further, interference by one parent with the visitation rights of the other constitutes a changed condition which may justify modification. R.L.S. v. J.E.S., 522 S.W.2d 5[1] (Mo.App.1975).

The evidence here was that the boy was reared mostly by aunts, a grandmother and other adults living in the same household. The mother was employed and gone from the home. The child was subsequently sent from his mother’s home in Chicago to an aunt’s home in St. Louis. Finally, the respondent-father was deprived of visitation rights and kept in the dark as to the boy’s whereabouts.

In passing upon the issue of custody modification, the child’s welfare is the paramount concern. We give due deference to the finding of the trial court and conclude there was a change in circumstances of the boy’s custody, and that his best interest would be served in the respondent-father’s custody.

We find appellant’s second point that the trial court refused her a true hearing to be without merit. The evidence was that she was served with the motion to modify. She personally refused notice of the original hearing date. She and her attorney later filed affidavits explaining that her absence from the second hearing was due to an unexpected refusal of continuance by the court. The record is silent as to any request by her fór a continuance. The point is denied.

Judgment affirmed.

DOWD and WEIER, JJ., concur.