author: STEPHENSON, Justice.

text:
    William Edward BEASON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.

      Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   STEPHENSON, Justice.

William Edward Beason was tried and convicted of carrying a concealed deadly weapon, KRS 435.230, and sentenced to two years’ imprisonment.

Beason asserts that (1) he was entitled to a directed verdict, (2) the deadly weapon was not properly identified, and (3) there was error in the use of a prior conviction in the closing argument.

The arresting officer testified he observed Beason and another individual in an alleyway and asked for identification. After Beason appeared not to want to use his left arm or to face him, the officer asked Beason to raise his arms to be frisked. A gun fell from under the left side of Bea-son’s jacket. Beason’s companion fled the scene. Beason denied that he had the gun in his possession, concealed or otherwise, and stated that his companion threw it to the ground. His companion testified to the same effect.

We are of the opinion that the Commonwealth’s evidence presented a jury question, and the trial court properly overruled the motion for directed verdict.

Beason’s assertion of error in admitting the weapon into evidence is an argument that there was a gap in the chain of custody proven by the Commonwealth. The arresting officer testified that it was the same gun. We are of the opinion this was sufficient identification to authorize introduction of the gun into evidence. The cases cited by Beason are not applicable to the situation here in any respect.

This argument as to incomplete chain of custody in the instance of guns being introduced into evidence has been made on several occasions recently. The answer to this argument is found in McCormick, Evidence, § 212, at page 527 (1972):

“If the offered item possesses characteristics which are fairly unique and readily identifiable and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition. On the other hand, if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court's discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the ‘chain of custody’ of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.”

This same reasoning was used in Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962). The trial court properly admitted the gun into evidence.

We are convinced that Beason’s assignment of error in the Commonwealth’s closing argument is meritorious. Beason testified that he had a prior conviction for armed robbery. The trial court properly admonished the jury that Beason’s prior conviction should be considered only as it might affect his credibility as a witness. During the course of the closing argument, the Commonwealth properly commented upon Beason’s prior conviction as bearing on whether the jury should believe his version of the incident and then proceeded to make this additional argument:

“The punishment in this case can be as little as $50, or as much as $500, in fines, or penitentiary time. This isn’t one of those fines you may have experienced where it’s and/or. This is or.
“Now, when you’re talking about a man, if you believe the Commonwealth has met its burden of proof and that this man here is properly charged and guilty, and you’re talking about a man who, by his own admission, not only previously was convicted of a felony, but previously convicted of one involving force and violence, and a weapon, I submit for your consideration that anything less than the maximum—
“MR. CLAY: Your Honor, may I object to that. There’s no proof that this prior conviction involves a weapon.
“MR. SCHROADER: May we approach the Bench, Your Honor?
(Whereupon, the following proceedings were had at the Bench, in whispered tones.)
“MR. SCHROADER: I believe you could argue that armed robbery requires the use of a weapon, or some instrument so used that it convinces the victim thereof that it is a deadly weapon.
“THE COURT: I understand the evidence to be that he admitted that he had been.
“MR. CLAY: Your Honor, I believe the argument of the prosecutor goes far beyond the bounds for this defendant.
“THE COURT: He is arguing now with respect to the degree of punishment if they find him guilty. He is making the argument that it is his view, as representative of the Commonwealth, that the evidence of this man’s prior conviction of a felony involving the use of a firearm or deadly weapon is relevant and is a valid predicate for asking for the maximum sentence, and that’s legitimate argument, Counsel.
“MR. CLAY: Yes, sir.
“THE COURT: I overrule the objection.
(End of proceedings at Bench.)
“MR. SCHROADER: So, now then, on the question of punishment of this man, by his own admission previously convicted of a crime involving the use of force and violence and a deadly weapon, I submit for your consideration that the only punishment that’s fair to the people of the Commonwealth of Kentucky- — all the people, is the maximum in this case, five years in the State penitentiary. How else will we ever break these people charged, convicted—
“MR. CLAY: Objection, Your Honor. “THE COURT: Objection overruled. “MR. SCHROADER: of carrying these deadly weapons around in such a manner that they can use them in the manner in which they demonstratively have used them?”

This prior felony conviction for armed robbery was admitted into evidence for a limited purpose. In accordance with the limiting admonition given by the trial court, the jury was permitted to consider the evidence of the prior felony conviction only for the purpose of affecting Beason’s credibility as a witness. When the Commonwealth argued the evidence of the prior conviction as a vehicle to enhance punishment, it went far beyond the limited purpose of the evidence and by so doing unfairly prejudiced Beason’s right to a fair trial. The Commonwealth was bound by the trial court’s admonition and by going beyond the admonition to this extent committed reversible error. See Graves v. Commonwealth, Ky., 528 S.W.2d 665 (1975).

The offense here was committed prior to the adoption of the Penal Code and was tried in accordance with the statute then in effect. We note the provision of the Penal Code dealing with carrying a concealed weapon, KRS 527.020(4), which provides: “Carrying a concealed weapon is a Class A misdemeanor unless the defendant has been previously convicted of a felony in which a deadly weapon was possessed, used or displayed in which case it is a Class D felony.”

Thus the statute provides that designated prior felony convictions enhance the penalty. Without expressing an opinion as to all the implications of the procedure, it is apparent that the enhancement type prior felony conviction in a carrying concealed weapon case will not be limited to consideration of credibility, and argument to enhance penalty on that account is recognized by the provisions of the statute.

The judgment is reversed with directions to grant a new trial.

All concur.

      . Offense committed in October 1974, prior to adoption of the Penal Code. The Carrying Concealed Weapon Statute is now KRS 527.-020.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Robert E. TEMPLE and Doris J. Temple, Appellants, v. STATE FARM MUTUAL INSURANCE COMPANY, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.

      Fred E. Fischer, Louisville, for appellants.
    Henry V. B. Denzer, Hogan, Taylor, Den-zer & Bennett, Louisville, for appellee.
   JONES, Justice.

This appeal involves a claim by Robert E. Temple and his wife Doris against State Farm for recovery of damages under the uninsured motorist provisions of their automobile liability policy. The trial court dismissed the Temples’ complaint and held that they had materially breached the terms and provisions of the policy by reason of their failure and refusal to give statements to the representatives of State Farm. In this appeal, the Temples contend they were relieved from a literal compliance with the provisions of the policy.- They assert such “essential information” was furnished State Farm so as to constitute substantial compliance.

On March 14, 1970, the Temples were involved in an accident with John Wissing, an alleged uninsured motorist. Shortly thereafter, Robert Temple reported the accident to State Farm. At the request of State Farm’s agent, Scheynost, Temple forwarded a copy of the police accident report to State Farm. Within a few days, an adjuster for State Farm appeared at the Temples’ home and spoke with Robert Temple about the accident. The adjuster told Temple that he would call him back and take his statement over the telephone. In the meantime the Temples contacted Cletus Amlung, an attorney who agreed to prosecute their claim. Sometime after Amlung’s employment, State Farm’s adjuster called Robert Temple and requested that he give his statement over the telephone. Temple referred the adjuster to his attorney, Am-lung. Amlung refused to allow either of the Temples to give a sworn statement.

On April 2,1970, State Farm sent a letter to the Temples advising them of the provisions of their policy and, that as a result of their failure to cooperate, State Farm was reserving its right to deny coverage. On May 4, 1970, and again on May 28, 1970, counsel for State Farm sent letters to Am-lung requesting the Temples’ sworn statements, which Amlung again refused to allow.

On January 27, 1971, the Temples filed suit against Wissing and State Farm. Wissing has never been served with summons. State Farm answered. It asserted the Temples had breached the provisions of their insurance policy by failing to give sworn statements as were requested by the company. It claimed such breach was material and sufficient grounds for denial of coverage.

The pertinent policy provisions are as follows:

“1. NOTICE. In the event of an accident or loss, a written notice containing particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, and the names and addresses of injured persons and available witnesses, shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.
“2. ACTION AGAINST THE COMPANY. No action shall lie against the company:
(a) unless as a condition precedent thereto there shall have been full compliance with all terms of this policy.
“6. MEDICAL REPORTS; PROOF OF CLAIM — COVERAGES . . . U. As soon as practical the person making claim under coverages ... or U shall give to the company written proof of claim including full particulars of the nature and extent of injuries, treatment, and other details entering the determination of the amounts payable. Proof of claim shall be made upon forms furnished by the company unless the company shall have failed to furnish such forms within 15 days after receiving notice of claim. The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he, or in the event of his incapacity or death, his legal representative, shall upon each request from the company execute authorization to enable the company to obtain medical reports and copies of records. Under coverage U the insured and every other person waking claim shall submit to examination under oath by any person deemed by the company and subscribed the same, as often as may reasonably be required.” (Emphasis added).

The basis of the Temples’ rights against State Farm is contractual. The terms and provisions of the policy require, as a condition precedent to any action or right of recovery against State Farm, that the Temples provide sworn statements to State Farm as often as may be reasonably required. Although the Temples notified State Farm of the accident and provided an accident report to State Farm’s agent, such information was insufficient for State Farm to evaluate the claim for settlement purposes. State Farm was entitled not only to an explanation of the circumstances of the accident contained in a police report, but was entitled also to the sworn statements of its insureds as to the details of its occurrence and, further, the “nature and extent of injuries, treatment, and other details entering the determination of the amounts payable.” Such information, exclusively within the control of the Temples, was essential for State Farm to fulfill its responsibilities under the terms of the policy; and, provisions of the policy reasonably designed to secure a truthful disclosure of such information are valid and reasonable conditions precedent to an insuror’s liability.

The ill-considered refusal of the Temples’ attorney to allow their statements to be taken, imposed upon State Farm considerable expense and expenditure of time to obtain the information which it had the right to receive without any expense. The information received nearly a year later through depositions did not so remedy the Temples’ breach nor the prejudice to State Farm as to enable the Temples to avoid State Farm’s denial of coverage.

The Temples rely on this court’s decisions in O’Bryan v. Leibson, Ky., 446 S.W.2d 643 (1969); Wheeler v. Creekmore, Ky., 469 S.W.2d 559 (1971); and Barry v. Keith, Ky., 474 S.W.2d 876 (1971) to support their contention that they should be relieved of that condition of the policy requiring sworn statements because of their conflict of interest with State Farm. Those cases dealt with the duty of the insureds to cooperate with the insuror where the company was attempting to control both sides of the litigation by exercise of its right to defend counterclaims against the insured and requiring its insured to cooperate in that defense. In such a conflict of interest situation, this court has relieved insureds of their duty to cooperate only to the extent that such cooperation would effectively surrender control of the litigation to the insuror. Wheeler v. Creekmore, supra. That situation does not exist in this case. By denying State Farm such information reasonably necessary to its performance under the contract, the Temples did not breach the cooperation clause of the policy, but did breach a valid condition precedent to their coverage.

The judgment is affirmed.

All concur.


text:
    REYNOLDS METALS COMPANY, Appellant, v. J. U. SCHICKLI & BROS., INC., et al., Appellees.
    Supreme Court of Kentucky.
    April 1, 1977.
    Kenneth L. Anderson, Woodward, Hob-son & Fulton, Louisville, for appellant.
    Joseph C. O’Bryan, Carey & O’Bryan, James H. Frazee, Frazee, Frick & Gates, Louisville, for appellees.
   STEPHENSON, Justice.

The trial court entered summary judgment dismissing the third-party complaint of Reynolds Metals Company against J. U. Schickli & Bros., Inc., and the other appel-lees. We reverse.

Pursuant to a decision to install an additional rolling mill, Reynolds issued a “purchase order” to Schickli “for excavating and enclosing foundation for Mill # 5.”

During the course of the excavation, John Bright, an employee of Schickli, was injured while at work in the excavation when a roll of aluminum foil, from a stack along side the excavation slid into the excavation resulting in the injuries to Bright. A forklift operator, an employee of Reynolds, using the forklift placed a roll of aluminum foil on top of two other rolls of aluminum foil in the stack. The two bottom rolls of aluminum foil then slid apart, resulting in the top roll sliding into the excavation where Bright was working and causing injuries to Bright.

Bright brought a suit at common law against Reynolds for the injuries sustained. Reynolds filed a third-party complaint against Schickli and the other appellees here, claiming that under the terms of its contract Schickli was obligated to indemnify Reynolds for the claim of Bright.

The trial court granted Reynolds’ motion for summary judgment on Bright’s claim for injuries on the ground that Reynolds was a “principal contractor” within the meaning of KRS 342.060 and accordingly was immune from common law liability to Bright.

We reversed this judgment in Bright v. Reynolds Metals Company, Ky., 490 S.W.2d 474 (1973), holding that Reynolds was not a “principal contractor” within the meaning of KRS 342.060 and directing further proceedings in conformity with the opinion.

Subsequently, the trial court held that under the terms of the contract Schickli was not obligated to indemnify Reynolds for the negligence of its employee and entered a summary judgment dismissing Reynolds’ third-party complaint for indemnity against Schickli and other appellees. This was not made a final judgment. There was pending a third-party complaint by Schickli against the employee of Reynolds involved in the accident.

After the entry of the judgment, Reynolds settled Bright’s claim for the sum of $30,000.

The trial court entered a judgment dismissing as settled the claim of Bright against Reynolds and then entered a final and appealable judgment dismissing Reynolds’ claim to indemnity against Schickli and the other appellees.

We are now presented with the question of whether the contract between Reynolds and Schickli provides for indemnity to Reynolds even from its own ordinary negligence. We are of the opinion that it does.

The pertinent provision of the contract is as follows:

“4. LIABILITY AND INSURANCE: Your presence and that of your employees on our premises is at your risk, and you agree to indemnify us and hold us harmless from any liability or damages arising out of or resulting from your presence or the presence of your employees on our premises, including without limitation, liability or damages arising out of or resulting from your acts or acts of your employees.”

In our view, Fosson v. Ashland Oil & Refining Company, Ky., 309 S.W.2d 176 (1958), relied on by Reynolds is precisely in point and dispositive of this appeal.

The indemnity contract in Fosson reads in part at page 177:

“(2) * * * The Contractor shall indemnify the Owner against all claims demands, liens, taxes, loss or damages of any character suffered by the Owner and shall save the Owner harmless from all liability growing out of or incurred in the prosecution of said work or arising from any operations, acts, or omissions of Contractor.”

Schickli argues that because of the difference in the language, the contract here does not manifest a clear intention that Schickli indemnify Reynolds for the negligence of Reynolds and can be distinguished from Fosson.

In comparing the provisions of the contract in Fosson with the contract presented here, it is apparent that different wording is used. However, in our view the import of the wording given ordinary and acceptable usage is the same in both contracts. Fosson states: “Unless there was required specifically the statement ‘including the owner’s own negligence,’ we can hardly envision a more inclusive indemnity provision.” We consider this statement applicable to the contract between Reynolds and Schickli.

We hold that there is no doubt as to the meaning of the indemnity clause here and that Reynolds is entitled to indemnity from Schickli for its own negligence.

We express no opinion as to whether Reynolds’ employee was, in fact, negligent; nor do we express any opinion as to the reasonableness of Reynolds’ settlement with Bright. Further, we express no opinion as to liability of the other appellees to Reynolds as this question was not developed before the trial court.

In view of our holding, it is not necessary to reach the other assignment of error.

The judgment is reversed for further proceedings consistent with this opinion.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, PALMORE and STEPHENSON, JJ., sitting.

All concur.

STERNBERG, J., not sitting.


author: GANT, Judge.

text:
    LOUISVILLE GAS AND ELECTRIC COMPANY, Appellant, v. EMPLOYER’S MUTUAL LIABILITY INSURANCE CO., Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied April 8, 1977.
    0. Grant Bruton, Charles D. Greenwell, Louisville, for appellant.
    William Mellor, Mellor & Shaw, Louisville, for appellee.
    Before GANT, HOWERTON and REYNOLDS, JJ.
   GANT, Judge.

Appellant, Louisville Gas and Electric Company, appeals from a summary judgment entered in the Jefferson Circuit Court on January 14, 1974, which judgment held that the Appellee, Employer’s Mutual Liability Insurance Co., did not provide any coverage for one Robert J. Cook in regard to the accident sued about.

The facts in this case were that the said Robert J. Cook, an employee of a corporation insured by the Appellee, was making delivery of certain goods shipped in interstate commerce to Continental Air Filter in Louisville. Upon his arrival at the plant somewhere before noon on Saturday, April 24,1971, Cook learned that his trailer could not be unloaded until Monday, April 26. Cook unhitched the tractor from the trailer and proceeded to seek food and lodging, pursuant to authority from the corporation. He drove to a motel on Dixie Highway, where he spent the night. On Sunday afternoon, while drinking beer at a nearby bar, Cook met a stranger by the name of Hayes. Cook and Hayes drove to the home of Hayes’ girlfriend and picked up the girlfriend and a friend of hers, proceeding thence to a bar where they stayed for two and a half hours, drinking beer, and then the four of them, still in the company tractor, drove out into the country for about a half hour to visit with Hayes’ ex-wife. On the return trip from the ex-wife’s home, Cook, who had apparently had eight or nine beers in the interval, ran off the road a few minutes before midnight, setting in motion a bizarre chain of events. The tractor struck and broke a utility pole belonging to the Appellant, which in turn started a fire in the transformer, which also belonged to the Appellant, which fire then damaged an elementary school owned and maintained by the Jefferson County Board of Education.

Both Appellant and Appellee agree that under the holding of the Court of Appeals in the case of Allstate Insurance Co. v. Napier, Ky., 505 S.W.2d 169 (1974) the law of the state where the policy of insurance was written and was to be performed governs in this case even though the. accident occurred in Kentucky. We are thus required to determine the Wisconsin law relating to the Omnibus Clause contained in the policy of insurance of the Appellee. The Omnibus Clause extends coverage to include:

“(c) Any other person while using an owned automobile or a hired automobile with the permission of the named insured.”

More narrowly, we have in the instant case the sole question of whether or not, under the Omnibus Clause as recognized in Wisconsin, Cook was using the tractor at the time and place of the accident with the “permission of the named insured.” The history of the law in Wisconsin is an interesting one. The first case construing this clause seems to have been the case of Drewek v. Milwaukee Automobile Ins. Co., 207 Wis. 445, 240 N.W. 881 (1932) in which the Supreme Court of Wisconsin held that the Wisconsin omnibus coverage statute and the insurance policy incorporating the provisions of the statute extended insurance coverage to the assured or a person driving his automobile with his permission and was intended to cover persons using the automobile with the assured’s permission in the first instance, regardless of the use thereafter.

After the Drewek case came Kitchenmaster v. Mutual Automobile Ins. Co., 248 Wis. 554, 22 N.W.2d 479 (1946) in which the Supreme Court of Wisconsin held that an employer’s tacit consent to allow a farm laborer who had no driver’s license to drive his truck about the farm without using the public highway could not operate as a consent to use the truck on the public highway for his own purposes. Citing Drewek, the court said that this was more than a mere deviation from his permission. In Boehringer v. Continental Casualty, 7 Wis.2d 201, 96 N.W.2d 353 (1959) the court again found a substantial deviation from permission to operate a truck between the plant and the mill when a driver went home to get lunch.

In Harper v. Hartford Accident and Indemnity Co., 14 Wis.2d 500, 507-508, 111 N.W.2d 480, 485 (1961), the court modified Drewek by stating:

“The broad language of Drewek that permission means consent to possession regardless of the use to which the permit-tee puts it has been qualified by the substantial deviation rule which generally applies to purpose for and place to which the car was used and also qualified by implied and express limitations on who can drive the car. Permission, in fact, may include either or both factors of purpose and driver. The question always is what was the scope of the permission.”

In Krebsbach v. Miller, 22 Wis.2d 171, 125 N.W.2d 408 (1963), the court modified Harper to some extent as it related to the first permittee giving the vehicle over to a second permittee. The case of Derusha v. Iowa National Mutual Ins. Co., 49 Wis.2d 220, 181 N.W.2d 481 (1970), again states the principle that the Omnibus Clause will be broadly interpreted.

This Court observes that the State of Wisconsin is far more liberal than Kentucky in construing “scope of permission.” However, a strange thread runs throughout their cases. In all of their cases where there is only a “mere deviation” there is liability. Then came Kitchenmaster which says that where there is more than “mere deviation” there is no liability. Thereafter, Boehringer and Harper held that where there is “substantial deviation” there would be no liability. But the thread of which we speak is that in the Wisconsin cases which commit the court “to a broad, rather than narrow, construction of the word “permission” are all concerned with the relationship between parent and child and that the cases in which that construction is narrowed considerably are concerned with the relationship between employer and employee. While the Supreme Court of Wisconsin seems to abhor the use of the phrase “scope of employment” and insists that they are' talking only about “scope of permission” they seem to distinguish in their findings between these two situations.

Perhaps their reasoning is best set out in the ease of Derusha v. Iowa National Mutual Ins. Co., supra, in which the court said:

“Where, for example, the parties are related by blood * * * weaker direct evidence will support a finding of such use than where the parties are only acquaintances * * ⅞. Where * * * the relationship between the owner and operator is that of a parent and child, the evidence should be reviewed in the light of the authority which the law confers upon the parent to control the child, and the authority to administer restraint and punishment in order to compel obedience

In the instant case, the driver, Cook, by affidavit and in answer to interrogatories, stated that he was expressly prohibited from using the company truck in the manner in which it was used on the evening of the accident and, in fact, was fired for the unauthorized use of the company vehicle. The conduct outlined above of picking up three strangers, flitting from bar to bar, visiting a fourth stranger, etc. seems to this Court to constitute a substantial deviation of such import that even Wisconsin, with its professed “broad construction of the word permission,” would feel constrained to find in favor of the company.

For the reasons above stated, the judgment of the lower court is affirmed.

All concur.


author: VANCE, Judge.

text:
    LIBERTY ENGINEERING AND MANUFACTURING COMPANY, Appellant, v. Donald R. GRANGER, and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    March 18, 1977.

      C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellant.
    Thomas E. Harris, Fowler, Rouse, Measle & Bell, Lexington, for appellees.
    Before MARTIN, C. J., and VANCE and WILHOIT, JJ.
   VANCE, Judge.

The question presented by this appeal is whether a worker who has sustained an injury of appreciable proportions but who has returned to work at an increase in pay may be awarded permanent-partial benefits in excess of his functional disability rating.

Under Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), loss of earnings was established as the measure of occupational disability but even where no immediate loss of wages existed the board could make an award of permanent-partial occupational disability when the worker had suffered an injury of appreciable proportions which probably would shorten his work life or lessen his employment opportunities.

KRS 342.730(l)(b), enacted in 1972, provides:

“(b) In all other cases of partial disability * * * the individual entitled to benefits under permanent partial disability shall be entitled to compensation based on lost wages or body functional disability benefits, whichever is greater * *.”

Appellant contends that this statute supersedes and modifies the holding in Osborne to the extent that the standard for determining an award for permanent-partial disability is no longer occupational disability but lost wages or body functional disability, whichever is greater.

This identical question was considered by the Supreme Court of Kentucky in Couliette v. International Harvester Co., Ky., 545 S.W.2d 936 (1977). It was held that language contained in KRS 342.620(9), which is identical to the language of KRS 342.730(l)(b), does not modify the principles established in Osborne v. Johnson, supra.

It is our conclusion that “lost wages” as used in KRS 342.730(l)(b), refers to either a present loss of wages or probable future loss of wages as a result of shortening of work life or reduction of future work opportunities caused by an injury of appreciable proportions.

The award of benefits in excess of the percentage of functional disability was proper. Accordingly, under the authority of Couliette v. International Harvester Co., supra, the judgment is affirmed.

All concur.


author: McMILLIAN, Judge.

text:
    Mr. and Mrs. Richard A. WEBER, Plaintiffs-Appellants, v. LES PETITE ACADEMIES et al., Defendants-Respondents.
    No. 36738.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Jan. 20, 1976.
    Motion for Rehearing or Transfer Denied Feb. 26, 1976.
    Application to Transfer Denied April 14, 1976.

      Donald S. Hilleary, Clayton, for plaintiffs-appellants.
    Ziercher, Hocker, Tzinberg, Human & Mi-ehenfelder, Robert C. Jones, Clayton, for defendants-respondents.
   McMILLIAN, Judge.

This is an appeal by plaintiffs, from a judgment denying an injunction to force the removal of a nonresidential structure from a subdivision which plaintiffs contend is restricted solely to single family homes. This case was previously before us after the circuit court sustained defendants’ separate motions for summary judgment. Weber v. Les Petite Academies, Inc., 490 S.W.2d 278 (Mo.App.1973). We then affirmed that the written subdivision restrictions on the recorded plat do not, as a matter of law, restrict the lot in question to residences. However, we reversed and remanded for a trial on the merits of the second count: whether the common grantor’s plan of development created a negative easement, a reciprocal servitude, enforceable by plaintiffs. That trial has been held, resulting in a judgment for defendants. We affirm.

The plaintiffs, Mr. and Mrs. Richard Weber, are the owners of a single-family home on Lot 37 located in Marietta Plat 3, near the intersection of New Halls Ferry Road and Highway 140 in St. Louis County. Defendant Les Petite Academies, Inc., is the owner of Lot A, at the intersection of Marietta Drive and New Halls Ferry Road, immediately adjacent to Lot 37. At the time the original suit was filed, defendant National Homes Construction Corporation was erecting a structure on Lot A to be used as a day nursery by Les Petite Academies.

Marietta Plat 3 was developed by a common grantor, one Richard J. O’Brien, owner of the land and the construction company, who had the tract surveyed and subdivided in 1960. A map of the plat was filed for record by the Recorder of Deeds on August 4, 1960. The map contains the following written “Subdivision Restrictions”:

“All dwellings to consist of a minimum of 80% masonry exterior facing.
“Any addition to present home must be attached to same — not a separate dwelling.
“Each dwelling must have a minimum living area of 1,150 square feet, plus a two (2) car attached garage.
“Only chain link type fencing may be used. Fencing may be installed only in the back yard of each lot, not on sides or front of dwelling.”

These are the only written, recorded restrictions; the deeds to the lots in Plat 3 contain no restrictions but recite that they are subject to “restrictions of record.” Plat 3 is a segment of Marietta Drive originating at New Halls Ferry Road. Plat 3 contains lots numbered 37 through 49 and 52 through 57, lettered Lots A and B. In its entirety, Marietta Subdivision contains 163 numbered lots but only three lettered lots — A, B, and C. Lot C is a large corner lot in Plat 4 with a swimming pool, which is maintained for subdivision residents.

Having seen a newspaper advertisement, on September 24, 1961, Mr. Weber and his then-fiancée went to the subdivision where they talked with Mr. O’Brien and Mr. Reinhardt, his salesman. At that time, fifteen of the lots in Plat 3 had completed, occupied residences. Plaintiffs were given copies of advertising brochures which described the subdivision as, among other things, “a Development of Luxurious New Homes” and an “Attractive controlled neighborhood.” These showed Marietta Subdivision as extending all the way to New Halls Ferry Road; that is, as encompassing Lots A and B. The sales contract in which plaintiffs agreed to purchase their “residence” from O’Brien stated that it was to be “one of a number of residences” being built in Plat 3 by O’Brien.

Mr. O’Brien testified that, at the time of planning Marietta Subdivision, he had attempted unsuccessfully to have Lots A and B rezoned to commercial. However, when plaintiffs purchased their home in 1961, the zoning ordinances of St. Louis County excluded private pre-kindergarten and nursery schools. On April 13, 1965, a new zoning ordinance permitting a day nursery became effective. On June 1, 1971, Les Petite Academies was issued a permit to construct a day nursery.

Les Petite Academies purchased Lot A from Mr. O’Brien on May 28, 1971, approximately nine (9) years after residences had been built on all the numbered lots in Plat 3. In this intervening period, New Halls Ferry Road had been widened and traffic along it had increased greatly. Also there is some indication in the record that commercial establishments were being built across New Halls Ferry Road from the subdivision.

National Homes Construction Corporation began construction in July, 1971. On July 19, 1971, a member of the Marietta Improvement Association notified an attorney (later plaintiff’s counsel) of the structure being erected on Lot A, and the attorney went to the site and delivered a letter to a party who promptly mailed it to National Homes. On that same day, he sent a telegram to National Homes and letters to both defendants, requesting that the parties cease and desist from further construction. Construction continued to completion.

The nursery has been in operation since 1971. It is open twelve (12) hours per day. At the time of trial, it had a staff of eleven and had enrolled eighty-seven children (100 children are allowed by its license). Children are being dropped off or picked up continuously all day, creating traffic. These cars park in front of the homes on Marietta Drive. When there are ears parked on both sides of the street, two cars cannot pass. Also, trucks make deliveries to the nursery. Once or twice a month the nursery holds night activities, drawing approximately fifty (50) cars. Plaintiffs expressed the opinion that the added congestion caused by the nursery had inconvenienced them and diminished the value of their home.

Plaintiffs seek a decree ordering the nursery to cease its operation. The legal theory upon which plaintiffs rely was described thusly in the controlling case of Campbell v. Stout, 408 S.W.2d 585, 589 (Mo.App.1966):

“[W]hen a common grantor develops a tract of land for sale pursuant to a general plan or scheme of improvement, and sells a substantial number of lots subject to restrictions of benefit to the land retained, then the grantees acquire an equitable right, variously called a reciprocal negative easement or implied reciprocal servitude, to enforce a similar restriction against the purchaser of the unrestricted lots who has actual or constructive notice of the restrictions. . . . ”

In ruling against plaintiffs, the trial court made findings of fact, including inter alia the following: the use of a portion of Lot A for a day nursery was consistent with “an attractively controlled neighborhood.” O’Brien had not intended for Lot A to be used as single-family residential; Les Petite Academies had no actual or constructive notice of any scheme of development that would restrict Lot A to single-family residential use; and the equities favored the use of Lot A for a day nursery rather than a single-family residence. Therefore, the court concluded that there was no negative reciprocal easement restricting the use of Lot A to single-family residential.

On appeal plaintiffs have three main contentions: (1) they assert that the court erred in rejecting as hearsay statements of O’Brien which were relevant and material to his plan for Marietta Plat 3; (2) they assert that the above findings of fact were contrary to the weight of the evidence; and (3) they assert that the court erred in holding that the nursery was not in violation of any negative reciprocal easement. We agree with plaintiffs’ first contention.

Over objection and by offer of proof, plaintiffs offered their own testimony and that of two other residents of Plat 3 concerning conversations they had with O’Brien regarding Lots A and B. Plaintiffs testified that O’Brien told them in 1961 that Lots A and B were each two lots and that he might sell half of Lot A to a doctor or lawyer to work out of his home, which would conform to the restrictions on plaintiffs’ home. Mrs Weber testified that she was told that the lot next to hers would be residential. Several times between 1961 and the mid-sixties Mr. Weber spoke to Mr. O’Brien about purchasing a portion of Lot A to build a home for his wife’s parents, but his offers were always rejected by O’Brien. According to Mr. Weber, O’Brien told him on one occasion that the lot was taken, on another that it was too expensive, and on still another occasion that no one would be interested in being so close to New Halls Ferry Road. Mr. Olheide, the first resident of Marietta Plat 3, inquired of Mr. O’Brien in July, 1960, as to the proposed use of Lots A and B. He testified that Mr. O’Brien said these lots were to be used to make a park. Likewise, prior to June 1961, when she and her husband purchased Lot 51, Mrs. Mary L. Clinton, asked Mr. O’Brien what his intentions were regarding Lots A and B. She was allegedly told that Lot A was two full separate lots and Lot B was two full separate lots and that these lots were to be planted in bluegrass to make a nice park-like entrance. O’Brien testified and indicated that he did not recall the specific conversations in which he is alleged to have discussed his intentions regarding Lots A and B. However, he denied having ever told anyone that Lots A and B were intended for residential purposes.

The above testimony was clearly hearsay. The trial court, however, erred in refusing to admit and consider it, but under the circumstances herein, we hold the error to be harmless. A well-established exception to the hearsay rule allows proof of plan or design by the speaker’s own statements as to its existence. Mattan v. Hoover, 350 Mo. 506, 166 S.W.2d 557 (1942); Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907 (1951); Lewis v. Lowe & Campbell Athletic Goods Co., 247 S.W.2d 800 (Mo.1952) and Wigmore on Evidence, 3rd Ed., Vol. VI, § 1725 at p. 79. These conversations were competent as within the exception. They related to a present existing state of mind and do not appear to have been made under suspicious circumstances.

Plaintiffs’ second main contention requires that we review the trial court’s findings of fact, especially those on intent and notice, the two requisites for creating a negative reciprocal easement. In a court-tried case, we review the cause de novo both upon the law and the evidence but we must give due deference to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3), V.A.M.R., and Pope v. Pope, 520 S.W.2d 634, 636 (Mo.App.1975). However, while the trial judge is entitled to deference by an appellate court, his findings lose weight when he excludes competent evidence which is relevant and material to the issues. Brooks v. Brooks, 208 S.W.2d 279 (Mo.1948).

The critical time in determining whether a common grantor intended to impose a general plan of development is at the time the subdivision was platted and lots were first sold. Rieger v. Wessel, 319 S.W.2d 855, 857 (Ky.1958). A party seeking enforcement of restrictions on use of lots in a residential development may show such intention by inference and no ground of valid inference may be disregarded; but rather inference appearing with sufficient clearness from any source should be accepted. Turner v. Brocato, 206 Md. 336, 111 A.2d 855, 863 (1955). Since O’Brien’s intent at the time of the excluded conversations is highly relevant to the issue of whether he had a plan to restrict Lot A to residential use, we have considered this testimony in reaching our decision. See Mattan v. Hoover, supra, at 567. We note that these conversations would have been sufficient for a finding that O’Brien had intended a general plan which would have restricted the subdivision to residential use. However, it is unnecessary for us to decide which way the evidence preponderates, because we hold that, even if O’Brien intended such a general plan, Les Petite Academies did not have actual or constructive notice of the restrictions. Therefore, any resulting negative reciprocal easement would not have been enforceable against them.

The law favors the free and unrestricted use of property. So, although reasonable restrictions on the use of property are valid, any ambiguities will be resolved so as to avoid such restrictions. Vogli & Co. v. Lane, 405 S.W.2d 885 (Mo.1966); Pellegrini v. Fournie, 501 S.W.2d 564 (Mo.App.1973) and Cash v. Catholic Diocese of Kansas City—St. Joseph, 414 S.W.2d 346 (Mo.App.1967). Further, there is the even more fundamental rule that effect will be given to the parties ascertained intention wherever possible. Turner v. Brocato, supra, at 864. Accordingly, equity will not step in and impose an implied restriction unless a negative covenant was clearly understood by all the parties. Macloon v. Vitagraph, 30 F.2d 634 (2d Cir. 1929) and Saari v. Silvers, 319 Mich. 591, 30 N.W.2d 286 (1948). Therefore, a negative restrictive covenant may be enforced against a purchaser only if he purchased with notice of the restriction. In equity, notice sufficient to charge a purchaser with knowledge of restrictions imposed as a part of a general plan may be either actual or constructive, including knowledge of facts which ought to have put him on inquiry. Annotation, 4 A.L.R.2d 1371; Campbell v. Stout, supra. Once such notice is established the purchaser will not be permitted to violate the restriction — but a purchaser without notice takes free of the restriction.

Building restrictions on a recorded plat are constructive notice to subsequent purchasers. King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415 (1910) and 20 Am.Jur.2d, Covenants, § 311. Plat 3 has restrictions which refer to “homes,” “dwellings,” “living area,” and “back yard.” In the prior appeal, Weber v. Les Petite Academies, Inc., supra, at 282, we said, “ . . . All these restrictions, at least arguably, tend to indicate that the subdivision is to be limited to residential dwellings. . ” However, there we were referring to the intent issue, not to the notice issue. The “Subdivision Restrictions” on the plat are, by their terms, standards of construction. Defendants are in literal compliance with those standards. In accord with the policy favoring free use of land, we will not interpret restrictions on construction so as to create restrictions on use. Cf. Bernard v. Winkley, 130 S.W.2d 196, 197 (Mo.App.1939) (Plat may establish a building line restriction but only if it does so by express language.). Therefore, the recorded plat which is silent, or at best ambiguous, on the subject of use, did not give defendants constructive notice that the area was restricted to residential.

Plaintiff argues that actual notice may have arisen from the brochures and advertising, from the letters and telegrams sent by plaintiffs’ attorney, and from the actual appearance of the subdivision. The former two are easily disposed of— newspaper advertisements and literature provided by the grantor to prospective purchasers certainly can create notice of restrictions on the property. Hofmann v. Hofmann, 172 Misc. 378, 14 N.Y.S.2d 565 (1939) and Hegna v. Peters, 199 Iowa 259, 201 N.W. 803 (1925). But that rationale is inapplicable here since the advertisements and brochures were published at least ten (10) years before defendant purchased the property and there is no indication that defendant ever saw them. The letters and telegrams were equally ineffective because they were communicated not only after the purchase but even after construction had begun. Obviously, the critical time for determining whether there was notice sufficient to burden a purchaser with restrictions on the land is the time of purchase. Otherwise, the notice requirement would be meaningless. The whole purpose of the requirement is to prevent some concealed intent from altering or diminishing the grantee’s ownership rights in the land. The absence of restrictive covenants certainly entered into the consideration paid. On the other hand, defendants had seen the subdivision prior to purchasing Lot A.

“The uniform appearance of a particular tract, and the nature of the buildings thereon, has been considered in several instances as sufficient to charge a purchaser of a lot in the tract with notice of a general plan of restrictions, or at least sufficient to put him on inquiry as to whether there was a general plan.” (Annotation, 4 A.L.R.2d 1364, 1371)

Whether the appearance of Marietta Subdivision was such as to bring it within that rule is a question of fact. The trial court specifically found that defendants did not have “actual knowledge ... of any uniform scheme of development of all lots in Marietta, Plat 3” and such finding is supported by the record. Even granting that the pre-existing structures on Marietta Drive in Plat 3 were all residential and were all similar in design, defendants could reasonably have believed that Lot A was not a part of any uniform scheme of development. Lot A was not among the residences but isolated at the end of the street. It was not numbered but lettered, and the only other lettered lot contained not a residence but a swimming pool. It was not of uniform shape and size but significantly larger.

Therefore, defendants were not in violation of any negative reciprocal easement. However, in reaching this conclusion we do not adopt all of the findings of the trial court. Specifically, we do not find that a balancing of the equities either favors or disfavors the use of Lot A as a day nursery. Such a finding is not necessary to the decision of this case. Nor does our finding of a lack of any restriction to residential use apply to any lot in Plat 3 other than the lot in question. But while we do not agree with certain of the trial court’s findings, in our opinion the conclusion of the trial court has adequate support in the record and thus, we affirm.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . Diminution in the value of plaintiffs’ property is not a prerequisite to their equitable right to enforce the restriction which they contend exists. See Matthews v. First Christian Church of St. Louis, 355 Mo. 627, 197 S.W.2d 617, 619 (1946).

      . Here, the alleged restriction is for the benefit of the whole tract rather than just the land retained. This factual difference might affect who could enforce the restriction. See generally Kuhn v. Saum, 316 Mo. 805, 291 S.W. 104 (1926); Arinot., 51 A.L.R.3d 556. Otherwise, the essential elements of the doctrine are correctly stated and applicable.

      . See generally 20 Am.Jur.2d, Covenants, § 304.
      Though using different terminology and emphasis, the Restatement (Second) of Property, § 539 (1944) reaches the same result:
      “The equitable interest resulting solely from the enforceability in equity of a promise respecting the use of land is effective against the successors in title or possession of the promisor except as they are entitled to the protection of the recording acts or of the defense of bona fide purchaser for value.”


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, ex rel. Joy SEIDL et al., Respondents, v. JEFFERSON COUNTY BOARD OF EDUCATION, Arthur Nahlik, President, et al., Appellants.
    No. 37549.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 15, 1977.

      Anderson, Brooking, Hammon & Dieffen-bach, John W. Hammon, Hillsboro, for appellants.
    Panned, Dodson & Robinson, R. J. Robinson, Festus, for respondents.
   McMILLIAN, Presiding Judge.

Appellants, Jefferson County Board of Education (Board), appeals from an order issued by the circuit court of Jefferson County, Missouri, issuing a peremptory writ of mandamus, commanding it to reassign respondents’ children to the Festus School District.

The Board contends that the court erred because respondents neither pleaded nor proved an abuse of discretion, nor sufficiently specified the relief sought. It further argues that respondents have only a doubtful right to the remedy sought; consequently, the writ should not issue.

Respondents contend that it was within the discretion of the Board to determine the relative accessibility of the schools and that the order was properly issued upon a finding of abuse of discretion. Both parties expend much effort on appeal arguing the facts of accessibility. The Board claims that the DeSoto schools are more accessible and therefore the order is in error, while respondents claim that the Festus schools are more accessible.

An amicus curiae brief, prepared on behalf of the DeSoto Public School District, raises one additional issue. It claims the cause is moot on account of a change in conditions and because the school year 1974-75, which was the subject of the peremptory writ, is now passed.

A simple set of facts is the basis of this litigation. On July 12, 1974, the board met to consider the applications for transfer of certain school pupils. Section 167.121, RSMo 1959 (Amended by Laws 1973, effective July 1, 1974), provides:

“If any pupil is so located that a school in another district is more accessible, the county board of education shall assign the pupil to the other district. The board of education of the district in which the pupil lives shall pay the tuition of the pupil assigned. The tuition shall not exceed the pro rata cost of instruction.”

Testimony at trial was primarily that of board members and parents. The transcript reveals that while there was some general discussion of the applications, there was no individual inquiry into the situation of each child. The Board adjourned for about fifteen to thirty minutes and voted. Upon return, the Board announced its decision to deny all of the transfer applications. The Board president explained the Board’s position in the minutes of the meeting as follows:

“ ‘. . . the Board had a responsibility to represent all the students of Jefferson County. The action requested would not affect this group only but would establish a precedent that could have an adverse affect (sic) on all school districts within the county.’ ”

The testimony showed that the Board members were, at the time of their determination, unaware of the judicial interpretation given “accessibility” by the Missouri Court of Appeals, Kansas City, in the case of Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1978). They believed that any school which provided bus transportation was accessible. One board member stated that mileage was not a consideration. Fear of setting a precedent for other transfers was the most cited reason for denial.

At trial both sides introduced evidence seeking to prove that one school was more accessible than the other. They discussed the safety of Highway 110, over which the children must travel to reach the DeSoto schools, the availability of after-school activities at each school, and the accessibility to a hospital for a diabetic child. Evidence on the mileage from homes to school was estimated and presented. The total amount of time children would spend away from home each day was considered.

On July 23, 1975, the circuit court issued the writ ordering the reassignment of five children. The court found that the remaining children were attending schools equally accessible as the Festus schools and did not include them in the order. We find that the Board failed to exercise its discretion in this matter because it did not consider the statutory factors under § 167.121, RSMo 1959 As Amended. We further find, that the circuit court should not have made its writ peremptory, commanding the Board to reassign respondents’ children. But rather should have remanded the cause to the Board and ordered them to proceed in accordance with § 167.121, RSMo 1959.

The amicus curiae brief contends that this cause is moot. Were this so, we would proceed no further in consideration of the case. As a general rule courts will not decide moot cases but will dismiss them. Personal Fin. Co. v. Day, 349 Mo. 1139, 164 S.W.2d 273 (Mo.1942); Joplin Waterworks Co. v. Jasper Co., 327 Mo. 964, 38 S.W.2d 1068 (1931); State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W.2d 8 (1941); Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404 (Mo.1954); Tootle v. Tootle, 362 S.W.2d 760 (Mo.App.1962) and State ex rel. Weber v. Vossbrink, 333 S.W.2d 298 (Mo.App.1960). We do not, however, agree that the cause is moot.

State ex rel. Weber v. Vossbrink, supra, is relied upon to support the contention. There, as here, a writ of mandamus was sought to require reassignment of children to a high school outside of the district in which they lived, on the ground that it was more accessible. While the case was pending the children attended and graduated from the out-of district school, with the parents paying tuition. This court dismissed the case stating: “It is clear that to require the respondent to assign the petitioners to the University City High School would be compelling a useless act. . . ” Id. at 301. The court found that the only remaining controversy was a claim by the parents against the school district for reimbursement of the tuition paid and that this claim should be brought in a separate action. While it is true that the school year for which the writ was issued has passed, the children in the instant case are still attending school. To reassign them now would not be a useless act.

The principles that decide this issue were set forth by this court in Western Auto Supply Co. v. Banner, 288 S.W.2d 402 (Mo.App.1956):

“It is a firmly entrenched and fundamental principle of law that a cause is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, could not have any practical effect upon any then existing controversy . and neither the trial nor appellate courts will attempt to determine moot or pretended causes wherein it is demonstrated that there is no actual and real controversy involved, or in which no practical relief can follow a judicial determination of the controversy. . . . ” (Id. at 403-404)

The practical effect of a decision now would be to reassign the children for the remainder of their school years. The controversy is over which school the children should presently be attending.

In mandamus proceedings, the general rule is that mandamus will not lie to control the discretionary act of an administrative body, State ex rel. Lane v. Kirkpatrick, 485 S.W.2d 62 (Mo.1972). Professor Kenneth Culp Davis defines discretionary acts as follows:

“An officer who decides what to do or not to do often (1) finds facts (2) applies law, and (3) decides what is desirable in the circumstances after the facts and law are known. The third of these functions is customarily called ‘the exercise of discretion. . . . ’ ” (Davis, Discretionary Justice, p. 4)

This court has put it: “ . . . Determination of facts or a combination of facts and law are quasi-judicial functions, and not ministerial and this discretion can not be coerced by the courts. . . . ” State ex rel. Rock Road Frontage, Inc. v. Davis, 444 S.W.2d 43, 46 (Mo.App.1969). See also State ex rel. Hand v. Bilyeu, 346 S.W.2d 221 (Mo.App.1961). In the case at bar the Board was vested with the statutory power to determine the facts and the law. They then had the authority to apply the law to the facts and decide which school each child should attend. The court is asked to make that decision for them. The act which respondents seek performed is a discretionary one, therefore mandamus generally will not issue to control that act.

On petition for writ of mandamus, respondents alleged abuse of discretion. Discretion abused assumes discretion exercised. The Board did not engage in fact finding. They based their decision on fear of setting a precedent rather than on the law as applied to respondents. “Accessibility” is given meaning by the recent decision, Haymart v. Freiberger, supra, which held that proximity, road hazards and availability of school services are factors to be considered in determining accessibility. The opinion of the attorney general, No. 38, issued April 16,1959 and construing a prior statute lists “distance, road conditions, traffic hazards, as well as the operation of school buses for the transportation of pupils.” Apparently the Board was, in fact, unaware of these rulings. It failed to ascertain the meaning of the law or apply it to respondents. It did not exercise its discretion. A similar case arose concerning issuance of permits to construct and operate a gas station. State ex rel. Rock Road Frontage v. Davis, supra. In that case the town council denied a hearing based on the mistaken belief that the proposed station would be on a three corner intersection and therefore automatically in violation of the zoning ordinance. In a mandamus action to compel issuance of the permits, this court held that the council had not yet exercised its discretion, as it had not applied the statutory scheme to the proposed station. Mandamus was not issued.

Exception to the general rule is that in cases of undisputed facts, where the discretion of the official could legally be exercised in only one way, the court may issue mandamus to control discretionary acts. State ex rel. Kopper Kettle Restaurant, Inc. v. City of St. Robert, 424 S.W.2d 73 (Mo.App.1968) and State ex rel. Burke v. Ross, 420 S.W.2d 365 (Mo.App.1967). Here, however, the facts of this case are not such that the Board’s discretion could be exercised in only one way. A number of factors were presented at trial, which apparently were not presented to or considered by the Board. They include (1) convenience for working parents; (2) health of the children; (3) safety of the roads; (4) availability of bus transportation; (5) extra-curricular activities and (6) the number of hours the children would be away from home. The amicus curiae brief claims that the now reconstructed Highway 110 is one of the newest and best in the area. Reasonable people could disagree as to the weight and sufficiency of each of the factors. Consideration of these factors must be made as to each individual child. We are unable to say how the Board would exercise its discretion when considering the proper factors. We feel the Board should be given the opportunity to so exercise its discretion.

Error is also predicated on procedural issues including a question of the conformity of the peremptory writ to the alternative writ and the issuance of a writ to the Board despite the fact that the Board had two new members who were not parties to the litigation. In light of our resolution of this case, we feel it is unnecessary to reach these issues.

For the foregoing reasons the writ is dissolved and the case is reversed and remanded to the trial court with instructions to issue a writ of mandamus commanding the Board to exercise its discretion.

SMITH and STEWART, JJ., concur. .


author: DOWD, Judge.

text:
    In re MARRIAGE OF James Harold VALLEROY and Mary Anna Valleroy. James Harold VALLEROY, Petitioner-Respondent, v. Mary Anna VALLEROY, Respondent-Appellant.
    No. 37701.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 15, 1977.

      Joseph H. Langworthy, Jr., Pacific, for respondent-appellant.
    Lawrence Willbrand, St. Louis, for petitioner-respondent.
   DOWD, Judge.

A dissolution of marriage case. Appellant, Mary Valleroy, challenges the trial court’s maintenance award, the trial court’s ruling excluding evidence of James Valler-oy’s marital misconduct, and the trial court’s order denying appellant’s motion for leave to appeal as a poor person.

In her first point on appeal, appellant argues that the trial court erred in terminating maintenance after one year because the evidence did not support prospective termination of maintenance. We agree with appellant’s contention. The trial court ordered respondent to pay appellant $20.00 per week for one year as spousal maintenance. The spousal maintenance order recognizes appellant’s present inability to provide for her reasonable needs through property awarded her or through appropriate employment. § 452.335.1 RSMo Supp.1973. Appellant was awarded a 1957 Chevrolet as her share of the marital property and owned home furnishings worth $150.00. She owed $900 to her brother and sister. Appellant was 55 years of age at the time of hearing on the dissolution petition and was earning $30 to $40 per week babysitting and doing housework. She had worked in prior years at restaurants and at Dunkin Donuts, but had never earned more than $67.00 per week. In more recent years, appellant had been unable to gain employment at the dimestores and restaurants to which she applied. She estimated that her expenses were approximately $75.00 per week.

The award of $20.00 per week also takes into consideration the limited means of respondent to pay spousal maintenance. Respondent was awarded a 1969 Dodge van and $275.00 in bank accounts as his share of the marital property. He had no major debts. Respondent was 49 years old at the time of the hearing and earned a gross salary of $134.50 per week as a security guard at a hospital. His net salary was $110.00 per week.

The trial court did not abuse its discretion in awarding $20.00 per week as spousal maintenance for appellant. § 452.-335. 2 RSMo Supp.1973; Murray v. Murray, 538 S.W.2d 587, 588[5, 6] (Mo.App.1976); In re Heddy, 535 S.W.2d 276, 279[7, 8] (Mo.App.1976). However, the transcript does not contain any evidence indicating that the financial circumstances of the parties will have changed after one year so as to support the trial court’s termination of spousal maintenance at that time. Prospective termination of maintenance is an abuse of the trial court’s discretion if no evidence was adduced showing that the circumstances of the parties are likely to change in the future. In re Powers, 527 S.W.2d 949, 955 (Mo.App.1975). Because termination of spousal maintenance after one year is not supported by substantial evidence, that aspect of the award is reversed. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In her second point on appeal, appellant argues that the trial court erred in refusing to hear evidence of respondent’s marital misconduct. Appellant rightfully contends that respondent’s misconduct was relevant upon the question of the division of marital property under Section 452.330. 1 RSMo Supp.1973. However, we do not reach the merits of appellant’s contention because appellant failed to preserve this point.

Appellant made no offer of proof at the hearing on dissolution regarding respondent’s marital misconduct. An objection to the exclusion of testimony will not be considered on appeal in the absence of an offer of proof as to the nature and relevancy of the testimony except in instances in which the plain error rule is applicable. Cobb v. R. W. Beasley Construction Co., 536 S.W.2d 535—37[1—3] (Mo.App.1976); Suddarth v. Suddarth, 515 S.W.2d 817, 818[1] (Mo.App.1974). We do not believe that the case at bar requires application of the plain error rule because no manifest injustice or miscarriage of justice resulted. Cobb v. R. W. Beasley Construction Co., supra.

Appellant’s third point on appeal is that the trial court violated her right to due process under the Fourteenth Amendment by denying her motion for leave to appeal as a poor person. We disagree.

Due process requires that, absent a state interest of overriding significance, persons forced to settle their claims through the judicial process must be given a meaningful opportunity to be heard. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Indigents seeking dissolution of their marriages cannot be excluded from the trial court by an inability to pay court fees and costs because the courts are the exclusive mechanism by which the fundamental human relationship can be dissolved. Boddie v. Connecticut, supra; United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973). The holding in Boddie v. Connecticut is applicable only in those situations in which the dispute between the parties affects fundamental associational activities over which the courts have exclusive control. United States v. Kras, supra, 409 U.S. at 445-45, 93 S.Ct. 631[4].

We do not believe that Boddie v. Connecticut is dispositive of the issue presented. Appellant has been granted a dissolution of her marriage by the trial court and appeals only from the property and maintenance awards. The due process requirement of a meaningful opportunity to be heard incident to dissolution of marriage has thus been satisfied. Due process does not further require the state to provide an appellate system or post-hearing review without payment of court fees and costs. Ortwein v. Schwab, supra, 410 U.S. at 559-60, 93 S.Ct. 1172[3]; Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 31 L.Ed.2d 36[26] (1972).

The trial court’s order is affirmed except insofar as the order terminated spousal maintenance after one year.

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

      . Due process does not require the state to provide an appellate system; but if the state does afford an appellate system, the equal protection clause of the Fourteenth Amendment prohibits the state from granting appeal to some litigants while capriciously or arbitrarily denying appeal to others. Lindsey v. Normet, supra at 77, 92 S.Ct. 862[27]. Appellate filing fees do not contravene equal protection as long as such fees are no greater than necessary to offset the operational costs of the appellate system. Ortwein v. Schwab, supra, 410 U.S. at 660, 93 S.Ct. 1172 [4, 5].


text:
    Louis LESSER and Jack Ford et al., Plaintiffs-Appellants-Respondents, v. Lloyd S. RUBIN, Defendant-Respondent-Appellant.
    Nos. 37381, 37382.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 15, 1977.

      Slonim & Ross, Richard L. Ross, David C. Drury, Clayton, for plaintiffs-appellants-respondents.
    Love & Lacks, Chester A. Love, Thomas K. Edelmann, Clayton, for defendant-respondent-appellant.
   McMILLIAN, Presiding Judge.

This is an appeal from a jury verdict in favor of Lloyd S. Rubin, defendant-respondent-appellant (hereinafter referred to as Rubin) on his counterclaim against Louis Lesser,' plaintiff-appellant-respondent (hereinafter referred to as Lesser), and Lesser and Jack Ford, plaintiffs-appellants-respondents (hereinafter referred to as Lesser and Ford) and against Lesser and Ford on their claim against Rubin. We affirm.

In March of 1969, Lesser and Rubin, who had engaged in a significant prior business transaction, entered into two written agreements. The first agreement (hereinafter referred to as the Stock Sale) concerned the sale of 80,000 shares of stock. Lesser, the seller, was to deliver the shares of stock and to arrange for Rubin to be accepted into a voting trust. The purchase price was one dollar per share. The second agreement (hereinafter referred to as the service agreement) provided that Rubin pay Lesser and Ford, the general partners of the limited partnership Less-Ford Investment Limited, $40,000 over a period of one year for submitting investment opportunities to Rubin. Payment was to be made in an amount of $3,700 on the 15th day of each month. By the service agreement, Lesser and Ford were not obligated to provide any set number of investment opportunities. Nor was Rubin required to accept any investment opportunities. The service agreement further provided that:

“4. In the event that Investor makes any purchase, sale, lease, investment or transaction of any kind with any person, firm or corporation, or in any way utilizes the services of Finder to make investments, he will not be obligated to pay any additional fees, expenses or compensation whatsoever to Finder and Investor’s sole liability hereunder shall be to pay the one year’s retainer fee as set forth above.

The service agreement made no claim that the retainer fee was additional consideration for the stock agreement. The service agreement did provide, however, that it was the entire understanding of the parties to be modified only by a signed writing.

The stock sale took place in mid-April after Lesser provided Rubin with a letter seemingly accepting him into the voting trust. Rubin paid the $80,000 to Lesser. On July 2, 1969, the voting trust was terminated. Rubin retained the stock shares. After an initial payment of $3,700 on the service agreement, Rubin made no further payment. Lesser testified that he continued to provide “opportunities” through December, 1969.

In December, 1970, Lesser and Ford filed suit for breach of the service agreement by Rubin’s failure to pay the balance of $36,-300. A second count of their petition alleged in the alternative that the service agreement was additional consideration for the stock sale. Rubin’s first amended answer, filed by leave of court on February 22, 1974, claimed as an affirmative defense that the service agreement was without consideration because neither Lesser nor Ford had promised any performance. Rubin also denied that Lesser and Ford had performed under the service agreement. Rubin further answered that the service agreement purported to be a complete integration of the parties’ agreement and that it made no mention of it being additional consideration for the stock sale.

On February 22, 1975, Rubin filed his first amended counterclaim containing two counts. Count I sought damages of $80,000 caused by Lesser’s alleged breach of the stock sale agreement. Rubin alleged that Lesser had failed to cause him to be accepted into the voting trust. Count II alleged that the service agreement contained no consideration on the part of Lesser and Ford and was, therefore, void. Rubin claimed that he was entitled to the return of his $3,700.

After a May, 1975, trial in which Lesser and Rubin were the sole witnesses, the jury returned two verdicts. The first found “. . . the issues in favor of the defendant Lloyd S. Rubin on his counterclaim against the plaintiff Louis Lesser” and assessed damages and interest at $108,046.26. This jury verdict obviously related to the first count of Rubin’s counterclaim concerning the stock sale. The second jury verdict found “. . . the issues in favor of the defendant Lloyd S. Rubin and against the plaintiffs Louis Lesser and Jack Ford” and assessed damages and interest at $5,050.50. This second jury verdict seems reasonably interpreted as a jury finding against Lesser and Ford on their claim for $36,300 under the service agreement and in favor of Rubin as to Count II of his counterclaim seeking refund of $3,700.

Lesser and Ford’s post-trial motion sought to have the court set aside the verdicts of the jury and to have judgments entered in accordance with their motion for a directed verdict, or alternatively, to grant them a new trial. The trial court denied any relief as to Lesser and Ford’s original claim. The court did, however, grant judgment notwithstanding the verdict as to Count I of Rubin’s counterclaim concerning the stock sale. This order was based on a finding that Rubin had failed to make a prima facie case or to show any damages, ground 22 as alleged in plaintiffs’ motion. The order also provided that if it was determined on appeal that Rubin had made a submissible case on Count I of his counterclaim, that Lesser and Ford should be granted a new trial on that count on the basis of grounds 9, 15 and 20 of plaintiffs’ motion. Apparently, the trial court also granted judgment notwithstanding the verdict as to Count II of Rubin’s counterclaim concerning the service agreement. The order does not specify the grounds for this portion of it. In effect, the trial judge denied all parties’ monetary recovery on any of the counts. All parties appealed.

On appeal, Lesser and Ford raise four issues, two of which, Contentions II and IV, allege trial errors pertaining only to Count I of Rubin’s counterclaim on the stock sale. Inasmuch as the order of the trial court overturned the jury’s verdict for Rubin on that claim, we find that Lesser and Ford are not “aggrieved” as to these issues as required by § 512.020, RSMo 1969. We will not, therefore, address these two issues. The two remaining contentions raised by Lesser and Ford are that: The verdict and judgment in favor of Rubin on their original claim are contrary to the evidence, and the court erred in overruling their motion for a directed verdict because no justiciable issues of fact existed; and that the court erred in submitting to the jury Rubin’s verdict-directing Instruction No. V. Rubin’s verdict-directing Instruction No. V reads as follows:

“Your verdict must be for the defendant, (Rubin) on defendant’s claim for damages against plaintiffs if you believe:
“First, the plaintiffs were not required to do anything under their agreement with defendant dated March 21,1969, and
“Second, that the agreement was not additional consideration for the sale of stock from plaintiff Lesser to defendant.
“Third, defendant paid plaintiffs $3,700 pursuant to said agreement, and
“Fourth, defendant was thereby damaged
“[Ujnless you believe that defendant is not entitled to recover by reason of Instruction No. 3.”

Lesser and Ford contend that the submission of this instruction was error because the instruction wrongfully required the jury to interpret the legal meaning of contracts and because it failed to hypothesize and require a finding that plaintiff did not perform under the service agreement.

The first argument seeks to apply a rule of law that is applicable to unambiguous contracts. Here, the trial court allowed testimony by Lesser, which sought to establish that, contrary to the content of the agreement, the service agreement was additional consideration for the stock sale. Rubin then sought to refute this contention through his own testimony. The trial court then properly left the task of sifting this contradictory, extrinsic evidence to the jury. Commerce Trust Co. v. Howard, 429 S.W.2d 702 (Mo.1968).

The second argument also fails as the instruction plainly requires the jury to find Lesser and Ford were not entitled to recover under their own verdict-directing instruction. That instruction No. 3, required a finding of performance by Lesser and Ford, while it failed to mention lack of mutuality. A finding of failure of performance was, therefore, necessary for the jury to find as it did against Lesser and Ford, and for Rubin.

Lesser and Ford’s other general contentions, that the jury’s verdict was against the weight of evidence, is divided into three subsections. The first two subsections appear to relate only to the stock sale issue, on which they prevailed below, and, therefore, we pass to the third subsection. Lesser and Ford argue that the service agreement did not lack mutuality of obligation. Recognizing the requirement of mutuality of obligation in contracts, Feinberg v. Pfeiffer Co., 322 S.W.2d 163, 167 (Mo.App.1959), Lesser and Ford offer two reasons in support of their contention that the service agreement did not lack mutuality. First, the agreement requires them to bear all the expenses of finding investment opportunities without the possibility of additional compensation if Rubin chose to pursue any of the opportunities; and, second, the service agreement was additional consideration for the stock sale. The first suggestion neatly overlooks the fact that by Lesser’s own admission he and Ford were not required to find any investment opportunities. Their obligation to bear the expenses is, therefore, illusory. The second contention seeks to overlook the fact that the trial court allowed Lesser’s testimony on this issue of additional compensation and submitted the issue to the jury. The jury verdict settled the question unless we could say that the holding is palpably unreasonable. James v. Turilli, 473 S.W.2d 757, 762 (Mo.App.1971). We do not.

Lesser then contends that want of mutuality is available as a defense only to escape portions of the agreement which have not been performed. While this is a correct statement of the law, see, e. g., Jensen v. Estate of McCall, 426 S.W.2d 52, 57 (Mo.1968), it alone is not sufficient to compel recovery by Lesser and Ford. The verdict-directing instruction on their claim required the jury to find that they had found and submitted investment opportunities. From the verdict it is apparent that the jury found they had not done this. Our review of the evidence adduced at trial does not convince us that this finding is unreasonable. James v. Turilli, supra.

Next we consider Rubin’s cross-appeal. First, we consider the cross-appeal as it relates to the trial court’s action in taking away the jury verdict for Rubin on the stock sale contract. The trial court granted Lesser and Ford’s motion for judgment notwithstanding the verdict on this count of Rubin’s counterclaim on ground 22 of their motion. This ground contended that “defendant was not entitled to recovery, having failed to prove a prima facie case in that defendant failed to present any competent evidence that he was not accepted into the voting trust and further failed to prove that he was damaged in any way.”

On appeal, to sustain this action of the trial court, we must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party, Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811, 815 (Mo.App.1975), and yet be able to conclude that reasonable minds could not differ on the proper disposition of the case, Connizzo v. General Am. Life Ins. Co., 520 S.W.2d 661, 665 (Mo.App.1975). Crucial in determining whether the case should be submitted to jury resolution is whether “each and every fact essential to liability is predicated upon legal and substantial evidence”, Houghton v. Atchison, Topeka & Santa Fe R.R. Co., 446 S.W.2d 406, 409 (Mo. banc 1969).

In the present case, the stated general rules require that we consider whether Rubin introduced any sufficient evidence to prove both breach of cpntract and damages. Rubin contends that he proved breach; that is, non-acceptance into the voting trust. The only evidence presented on this issue by Rubin at trial was his own opinion that he was not accepted. Rubin’s testimony seems inconsistent with his acceptance of the stock certificates, his subsequent pledge of the stock to secure a loan and Lesser and Ford’s assertion that Rubin was accepted, as evidenced by a letter to that effect from the trustees. In reviewing the drastic action of granting a directed verdict, we must, however, consider only the moving party’s supportive evidence. Arguably, Rubin introduced sufficient evidence on the issue of breach because a jury could validly believe Rubin, totally disbelieve Lesser and Ford and refuse to find any probative value in Rubin’s acceptance and pledge of the stock.

On the issue of damages, however, our review of the record reveals no legal and substantial evidence upon which a jury could rationally measure damages. Rubin argues that the value of the stock outside the voting trust was much less than its value within the trust. The only evidence, however, of a lesser value of the stock which Rubin presented was based on the value of the stock at the time of trial rather than at the time of the alleged breach six years before. In addition, the values-at the time of trial appeared to be based on unlettered, freely trading stock whereas the stock in question was not freely trading. The damages which Rubin proved were not, therefore, those which could be said to have naturally and proximately resulted from the alleged breach. In this context, questions of credibility and the relative significance of evidence are not involved. Thus, we cannot say that the trial court erred in holding that Rubin failed to prove any damages. Liability cannot rest upon guesswork, conjecture or speculation, Houghton v. Atchison, Topeka & Santa Fe R.R. Co., supra, at 409.

The final three arguments raised by Rubin as to this count attack the grounds on which the trial court based its alternative order for a new trial. Because we affirm the granting of a judgment notwithstanding the verdict, we need not reach these issues.

The order of the trial court also deprived Rubin of the jury verdict in his favor on the second count of his counterclaim which sought refund of the $3,700 paid against the service agreement. We must affirm this portion of the trial court’s order because Rubin has failed to effectively appeal the determination. Rubin’s notice of appeal states that he “appeals from the appealable order entered in this action on the 19th day of August, 1975” and further provides that Rubin “appeals only from those portions of the order by which he is aggrieved, as more fully set forth in the explanation of judgment and jurisdictional statement attached hereto.” The “explanation of judgment” and jurisdictional statement sets out the entire post-trial order except for that portion which refused relief to Lesser and Ford on their original claim. In an ambiguous manner, therefore, Rubin has suggested to this court that he was dissatisfied with the trial judge’s action in depriving Rubin of both jury verdicts. Rubin’s fatal error, however, is his failure to include in his brief any specific contention or even a single sentence of argument suggesting why the trial court erred in depriving him of the jury verdict for a refund of his $3,700.00. In this posture, we express no opinion on the propriety of the trial court’s action because the issue is not before us, Rule 84.04(d), V.A.M.R.

We, therefore, affirm the judgment of the trial court in all respects.

DOWD, J., and ALBERT L. RENDLEN, Special Judge, concur.


author: NORWIN D. .HOUSER, Special Judge.

text:
    Toby N. TAYLOR, Appellant-Respondent, Respondent-Appellant, v. Ella Van TAYLOR, n/k/a Ella Van Nesiba, Respondent-Appellant, Appellant-Respondent.
    Nos. 37327 and 37338.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 15, 1977.

      Jack Gallego, Troy, for appellant-respondent, respondent-appellant.
    Niedner, Moerschel, Ahlheim & Bodeux, Reginald P. Bodeux, St. Charles, for respondent-appellant, appellant-respondent.
   NORWIN D. .HOUSER, Special Judge.

Appeal by Ella, natural mother of Todd and Christopher, aged 8 and 10 years, respectively, from an order modifying the custody provisions of the original decree of February 13, 1970 divorcing Ella and Toby.

The 1970 decree awarded Ella primary custody of the children, giving Toby temporary custody on alternate weekends from Saturday morning until Sunday evening and two weeks in the summer. Both parents lived in Missouri. Toby remarried in 1970. Ella remarried in 1973. Both new spouses came to these marriages with children from former marriages. Ella’s second husband graduated from a chiropractic college in Missouri in September, 1974. Having vacationed in Maine in July, 1974 and having then investigated the possibilities of practicing in that state he took the Maine qualifying examination shortly after graduation, passed it, bought a house in Maine and established himself there in the practice of chiropractic. When the couple moved to Maine they took Todd and Christopher with them without Ella having first obtained a court order authorizing her to take the children outside Missouri. From Maine Ella wrote Toby, telling him of her move. He promptly filed a motion to modify the custody decree, seeking an order transferring custody to him. Ella filed a countermotion, seeking modification to grant her permission to remove the children from the state.

Extensive testimony was heard on the motions, which were consolidated for trial. Toby, Ella, their present spouses, and the two children testified at length. Toby’s home in O’Fallon and Ella’s home in Ells-worth, Maine, both of which are adequate and comfortable for their respective families, were described. The history of the case, the lives and relationships of the parties, spouses and children and their interactions and attitudes, before and after the move to Maine, were testified to in some detail. The pluses and minuses of the two homes, the children’s associates and friends, and the schools, churches and communities, were explored.

At the conclusion of the hearing the court made an order continuing primary custody in Ella, granting her the right to remove the children from Missouri, and awarding Toby rights of visitation and temporary custody as follows: (a) custody for ten days following the trial; temporary custody during (b) the Thanksgiving school vacation, (c) one-half the Christmas-New Year vacation, but not less than 5 days, (d) the spring vacation, (e) the Easter vacation, (f) any other traditional school vacations exceeding four days in length, and (g) six consecutive weeks during the summer vacation. The order provided that Ella “pay all costs of transportation to and from [Toby’s] residence, for all such periods of temporary custody in [Toby] as set forth in [the] Court’s order; said costs are to be paid in advance to [Toby] and if said costs have not been paid in advance, petitioner shall have the right to deduct any such costs from the child support payments.” (The child support required by the original 1970 order, not changed in 1975, requires Toby to pay Ella $25 per week for each child.) The airplane transportation costs between Maine and Missouri are “about $400” (per trip). Toby, a carpenter and house builder, averages approximately $300 per week net wages plus 10% profit when he sells a house. Ella’s husband’s gross revenue in June, 1975 was $1900; in July, 1975 it was $2500. Ella is an experienced legal secretary. Toby’s wife is a licensed beautician. Neither woman was working at the time of the hearing; each spends her full time at home in her capacity as housewife and mother.

The propriety of the primary award of custody to Ella and the amounts awarded for child support are not in contention. The only issues for consideration on this appeal are the number of times per year the court allowed Toby temporary custody, and the assessment of all transportation costs against Ella.

Ella’s first point: “The trial court erred in granting [Toby] temporary custody five times during the year since the best interests of the two minor children are not served by such frequent shifts of custody from Maine to Missouri and back.” This point is sustained. This provision of the decree erroneously applies the law, which declares that “the frequent and constant shuttling of children between divorced parents residing in separate nonadjoining cities does not advance their welfare but rather tends to provoke feelings of instability and insecurity.” Stockton v. Stockton, 459 S.W.2d 532, 535[1] (Mo.App.1970); Wood v. Wood, 400 S.W.2d 431 (Mo.App.1966); Kimble v. Kimble, 399 S.W.2d 630 (Mo.App.1966); JGW v. JLS, 414 S.W.2d 352, 359[3] (Mo.App.1967); ML v. MR, 407 S.W.2d 600, 604[11] (Mo.App.1966). As the Court pointed out in Stockton v. Stockton, frequent trips from the home of one parent to the other, even for small boys riding jet airplanes, soon “lose the spice of adventure and degenerate into disquieting chores that unduly disrupt what otherwise would be orderly home and school schedules.” As there noted, air travel entails the expenditure of more time than is consumed in flight “and serves to disassociate the boys from desired routines and regular companions”, and “these incessant journeys deprive the children of participation in * * * organizational activities in their home community”, and are too disruptive for all concerned. In Stockton v. Stockton, the court was considering air flights from Columbia, Missouri to Springfield, Missouri. We are here considering five or more round-trip air flights between Maine to Missouri, entailing travel from Ellsworth, Maine to the nearest airfield booking transcontinental flights, and from Lambert Airport at St. Louis to O’Fallon, Missouri, a considerable distance, and then retracing the three legs of the journey. In Wood v. Wood, supra, 400 S.W.2d l.c. 437, the Court referred to the numerous benefits to a minor child who is afforded a regular and orderly schedule, without undue interruption, thus providing him with an atmosphere in which he can grow and develop in a normal and wholesome manner, whereas constant and continual change tends to provoke strains and tensions which eventually may have an adverse effect and cause serious problems of adjustment. In this case, as in that, the temporary custody provisions of the decree surround these young boys “with a climate of instability.” We agree with the conclusion that generally speaking, except for good reason, a minor child “should not be shifted periodically from one home to another”. Kimble v. Kimble, supra, 399 S.W.2d l.c. 634, where the court said it is “unwise to transfer custody frequently and not at all unless it is demonstrated by a preponderance of the evidence that the continued well-being of the child requires a change.”

In view of these basic precepts and on review of the whole evidence in this case we consider that the trial court abused its discretion in setting up this frequent, inexorable, and ever-recurring flight schedule for these small boys, both of whom were obviously quite happy and contented with their lives with their family and in their home in Maine, and their school, church and community life there. Neither boy expressed a desire to make these periodic treks back to Missouri. Outside the presence of their parents both boys testified freely to a preference to living in Maine versus living in Missouri. We are evaluating the terms of a court order which, if enforced literally, would inevitably and necessarily deprive these boys of their accustomed association with the family, friends and associates of their choice during every vacation period throughout each and every school year in the future. The court is enjoined to consider the wishes of the children as to their custodian, § 452.375(2), RSMo 1969. In apportioning the time to be spent in each of these homes we have given consideration to their wishes in this respect. Their father is genuinely interested in their welfare; they like their father, and their best welfare dictates that they receive from him the encouragement, companionship and guidance which he alone can give them, but their best welfare will not be served by frequent interruptions of their regular routine, taking them away from the home of their choice. One item of evidence with disturbing connotations is the emotional upset caused as the result of a violent fight which occurred in Toby’s home while these boys were there. Several of Toby’s brothers participated. This episode involved drunkenness, blows struck with pool cues and liquor bottles, and bloodshed. The adverse reaction experienced by Christopher caused him to have trouble sleeping for a long time thereafter.

All things considered, we have concluded that the best interests of the children will be served by continuing the full-time, primary custody in Ella during the entire school year, with the exception presently to be noted, and for five weeks prior to the beginning of the school term in the autumn, and to award their temporary custody to Toby for a part of the Christmas-New Year vacation period and for several weeks during the summer vacation. This solution of this perplexing and challenging problem will afford the children stability, continuity, and a measure of permanence in their regular regimen, while at the same time affording them an occasional change of pace, and time and opportunity twice a year to keep in touch with their father, to know and appreciate their other family, and to profit from their association with him and them.

Ella’s second point: “The trial court erred in ordering [Ella] to pay transportation costs for every trip to and from [Toby’s] home and that if such costs are not paid in advance, [Toby] may deduct such costs from the child support payments since: A. Custody rights and transportation costs should not be meted out with a design to reward one parent or punish another; B. There is no statutory authority for deducting transportation costs from child support in such a case, the statutory remedy being citation for contempt.”

That part of the order relating to costs of transportation is against the weight of the evidence, which reveals no such disparity between the economic circumstances and financial resources of Ella and Toby as to justify imposing upon Ella the entire burden of the cost of transporting the children between the two cities. The chief beneficiary of the frequent shifts of the children back and forth is Toby. Ordinarily, all other things being equal, it would seem only fair and equitable that he who receives the benefit be required to pay the cost, but under this decree the entire burden of the frequent and expensive air trips is charged to Ella, who receives no demonstrable benefit therefrom. In this respect the order was unjust and constitutes an abuse of discretion. Notwithstanding Ella improperly took the children out of the jurisdiction without first obtaining a court order authorizing their removal, we agree with her that custody rights and transportation costs should not be used as a vehicle for punishing one parent or rewarding the other. Graves v. Wooden, 291 S.W.2d 665, 669[3] (Mo.App.1956); Kimble v. Kimble, supra, 399 S.W.2d l.c. 634[6]; Hachtel v. Hachtel, 291 S.W.2d 201, 207[6] (Mo.App.1956). Considering all of the equities, the transportation costs should be equally divided. The order should not provide that if Ella’s portion of the transportation cost is not paid in advance Toby may deduct the sum from the child support payments. The court’s power in this respect derives from the statute, and there is no provision in Chapter 452 authorizing such a deduction. Under § 452.365 the remedy for failure of either parent to comply with a court order would be to “move the court to grant an appropriate order”, such as an order to show cause why the offender should not be held in contempt.

Accordingly, paragraph 2 of the order of August 7, 1975 relating to the temporary custody of the children and visitation rights of Toby is vacated and set aside, and the cause is remanded with directions to modify the order of August 7, 1975 by entering therein a new paragraph 2 awarding temporary custody of Todd and Christopher to Toby from December 26 of each year until January 2 of the following year, and temporary custody beginning ten days after school in Maine closes for the summer vacation and ending five weeks before the beginning of school sessions in the autumn. The order will direct Ella to deliver the children safely on board a regularly scheduled commercial airline for a transcontinental flight to the principal airport serving the City of St. Louis, Missouri on December 26, and again on the day summer custody begins, and will direct Toby to deliver the children safely on board the airplane for the return flights. Each parent will be directed to notify the other by mail, telephone or telegraph of the flight number, name of carrier, and scheduled time of arrival in ample time to meet the plane. Each parent will be required to pay one-half the cost of the air tickets. Toby will be granted visitation privileges during the school year, at reasonable times and places and under conditions agreeable to both parents, within the town and general area of Ellsworth, Maine. Ella will be granted visitation privileges during the summer vacation in Missouri, at reasonable times and places and under conditions agreeable to both parents, within the town and environs of O’Fallon, Missouri. Toby will be ordered to continue making payments of $25 per week for the support of each child, under the order of February 13, 1970, such payments to be made by mail to Ella, and not otherwise. These payments will not be required during the weeks the children are in the temporary custody of Toby.

It is so ordered.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.