author: RENDLEN, Judge. BARDGETT, Judge,

text:
    ST. JOHN’S MERCY HOSPITAL, a corporation, Plaintiff-Respondent, v. George C. LEACHMAN, Collector of Revenue, and St. Louis County, Missouri, Defendants-Appellants.
    No. 59564.
    Supreme Court of Missouri, En Banc.
    July 11, 1977.

      Thomas W. Wehrle, St. Louis County Counselor, Clayton, for defendants-appellants.
    Robert C. Jones, Clayton, for plaintiff-respondent.
   RENDLEN, Judge.

This direct appeal, involving construction of the revenue laws, comes to us under Mo.Const. Art. V, § 3, presenting two issues: (1) The property tax exemption vel-non of respondent’s “Doctors’ Building”, and (2) Whether respondent failed procedurally attempting to appeal a ruling of the St. Louis County Council denying the exemption, and is bound by that “decision”.

Respondent, St. John’s Mercy Hospital, a pro forma decree corporation, was notified in 1973 that a portion of the land at its St. Louis County Medical Center and the building situated thereon known as the St. John’s Mercy Doctors’ Building would be assessed that year for ad valorem tax purposes. During 1973, respondent completed converting the building from a hospital school-of-nursing to a doctors’ office building and the remodeled structure provided ground floor space for a laboratory, surgical research facilities and a pharmacy leased to a separate commercial enterprise, the Kirk-wood Drug Company with which respondent had no connection except as lessor. In the radiology extension department 4% to 5% of services rendered were “billed” by doctors on a private patient basis. The next level, described as the “first floor”, housed classrooms, a library, a personnel office, the department of social services and a speech and hearing testing area, supervised by a physician, in attendance part-time, not officed on the premises. The remaining five floors, were then leased or in preparation as offices for private physicians at rentals comparable to commercially owned buildings in the area and the approximately sixty physicians, officed and engaged in private practice there, were required under terms of their leases to participate in the hospital’s teaching programs.

Respondent presented abundant opinion evidence that the building’s proximity to the hospital facilitated participation in the teaching program, attracted a valuable mix of medical specialists and upgraded the quality of medical care in the hospital. Further, that development of the building for physicians’ offices increased the physicians’ identity with the institution, from which it may be said that officing the physicians, in close proximity with the hospital encouraged increased use of its facilities for patient care but this is hardly a critical factor demonstrating charitable use of those offices. The building also afforded rent-free office space for the full-time salaried hospital staff physicians, who were permitted to pursue separate part-time private practices there.

On receipt of the assessment notice, respondent, petitioned the Board of Equalization requesting an exemption for the Doctors’ Building and following the Board’s denial of that petition, pursued three separate courses of appeal.

On January 15, 1974, respondent petitioned the Missouri State Tax Commission for review of the Board’s decision under § 138.110 but was informed by the Commission the action was out of time, not having been filed by August 15, 1973, as required by the statute. Also on January 15, 1974, respondent filed a written request for the St. Louis County Council to consider its “petition for correction of erroneous assessment” pursuant to § 503.090, St. Louis County Revised Ordinances, which was denied by the Council in July. On January 21, 1974, respondent under protest paid the tax assessed and filed suit in the circuit court of St. Louis County under § 139.031, RSMo Supp.1971, seeking a declaration of exemption and refund of the tax. The trial court declared the questioned building exempt, ordered refund of the tax paid and Count II, by which respondent sought review of the order of the County Council’s denial of its “petition for correction of erroneous assessment”, was dismissed. From that judgment this appeal is taken.

For their first point, appellants contend the trial court erred adjudging the Doctors’ Building exempt from real property taxes under § 137.100 because that building, though a part of respondent’s medical center, was not used exclusively for purposes purely charitable.

While there is no contention that respondent corporation and its hospital, are other than charitable institutions, the claimed exemption depends upon the use of the building here involved, not merely the charitable character of the owner. Evangelical Lutheran Synod of Missouri, Ohio And Other States v. Hoehn, 355 Mo. 257, 196 S.W.2d 134, 143 (1946). Mo.Const. Art. X, § 6 (as amended in 1972) prescribing the criteria for legislative establishment of certain real estate taxation exemption, provides in pertinent part:

“ . . . all property real and personal, not held for private or corporate profit and used exclusively ... for purposes purely charitable may be exempted from taxation by general law.” (Emphasis ours.)

Pursuant to that authority the legislature by § 137.100, provided:

“The following subjects shall be exempt from taxation for state, county or local purposes: ... (5) All property, real and personal, actually and regularly used exclusively . . . for purposes purely charitable and not held for private or corporate profit, except that the exemption herein granted does not include real property not actually used or occupied for the purpose of the organization but held or used as an investment even though the income or rentals received therefrom is used wholly for . charitable purposes.” (Emphasis ours.)

It is well settled that tax exemption statutes are strictly but reasonably (so as not to curtail the intended scope of the exemption) construed; Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290, 294 [1] (Mo.1967). Further, claims for exemption are not favored in the law, and the burden is on the owner to establish the status. City of St. Louis v. State Tax Commission, 524 S.W.2d 839,844 (Mo.banc 1976). It is also recognized that each tax exemption case is peculiarly one which must be decided upon its own facts, turning upon the particular record presented. Jackson County v. State Tax Commission, 521 S.W.2d 378, 381 (Mo.banc 1975); Bethesda General Hospital v. State Tax Commission, 396 S.W.2d 631, 633 (Mo.1965). The statutory phrase “used exclusively” has reference to the primary and inherent use as over against a mere secondary and incidental use. If the incidental use does not interrupt the exclusive occupation of the building for charitable purposes, but dovetails into or rounds out those purposes, then there could fairly be said to be left an exclusive use in the charity on which the law lays hold. Midwest Bible & Missionary Institute v. Sestric, 364 Mo. 167, 260 S.W.2d 25, 30 [7] (1953), citing State ex rel. Spillers v. Johnston, 214 Mo. 656, 113 S.W. 1083, 1085 (1908). “ ‘Dominant use’ or ‘principal use’ cannot be substituted for the words ‘used exclusively’.” Community Memorial Hospital, supra at 295.

Examining the record against this legal backdrop leads to the conclusion that the office space leased by physicians in pursuit of their private practice, when coupled with the fact that a portion of the Doctors’ Building was leased to a commercial pharmacy, constitute uses not exclusively for purposes purely charitable. These activities occupy a substantial portion of the building in question. Respondent’s exhibit # 3 identifies the building’s 75,039 sq. ft. of usable space as follows: 36,492 sq. ft. (or 48.6%) is for offices rented by doctors, 29,-093 sq. ft. (or 38.8%) is “space utilized by the hospital” and 9,454 sq. ft. (or 12.6%) for common halls. Prorating the 9,454 feet of common halls to the doctors’ use vis-á-vis the hospital use on a space occupancy basis, 56% or 5,294 sq. ft. would be allocable to the former and 44% or 4,160 sq. ft. to the latter. Thus 56% of the building’s usable space is devoted on a substantially full-time basis to the private practice of the tenant-doctors and the remaining 44% to hospital purposes, though at times the space of each is used for purposes of the other.

Respondent vigorously contends that because each physician-tenant is required by his lease; (1) to participate in the teaching program of the medical staff, (2) to contribute a reasonable portion of his time participating actively in the development of the medical education at the Center, (3) to afford interns and residents an opportunity “to see interesting private teaching cases in the Lessee’s office subject to patients’ approval”, and (4) to see certain clinic patients in his office from time to time, the building’s commercial time use is diluted, or diminished, but the record provides scant information as to area or time for assessing the extent of this dilution. We cannot determine with any certainty how much time the physicians devoted to teaching, clinic service or administering related hospital programs but each private physician is permitted an unlimited private practice, and in that role bills and deals directly with his patients. The argument that the “on site” doctors’ offices permit prompt, convenient and more efficient performance of their public service for hospital purposes is equally applicable to each doctor’s private practice.

The fact that portions of the building are used for the hospital’s radiology department extension, laboratory, classrooms, research programs and similar hospital functions previously detailed herein, does not without more, redeem the exempt status of the building since “Missouri does not follow the partial exemption theory and if any part of the property is used for a non-charitable purpose the whole is taxable.” City of St. Louis, supra at 843.

The record does not reveal the commercial pharmacy’s size, though we may conclude the area so occupied was in addition to the 56% physician space use. While the estimates we have made of space use are subject to some variation, they are based upon respondent’s evidence and it is respondent’s burden to establish the exempt status.

Respondent cites, among others, Bethesda General Hospital v. State Tax Commission, supra, as authority for a declaration of an exemption here. However, the facts clearly distinguish Bethesda from this case. There the hospital’s seven residential properties were occupied rent-free by salaried hospital employees and such occupancy was partial consideration for performance of their hospital duties. It was undisputed that the doctors, the nurse, and the maintenance personnel who occupied the seven residences were full-time key personnel, necessary to the operation of the hospital and on call 24 hours a day. The court stated, 1. c. 635, “We rule that the use by these employees of the properties as residences provided them by respondent is not the dominant purpose, but is merely incidental to respondent’s said main charitable purpose.” (Emphasis supplied.) It was not decided in Bethesda, if the residents had been other than full-time hospital employees and had used a substantial area of their residences or a substantial portion of their time in a private-for-profit medical practice or other commercial business, whether the exempt status would obtain.

In Jackson County v. State Tax Commission, supra, one intervenor, Research Hospital of Kansas City, used a portion of the hospital’s complex “as residence quarters for hospital employees, nursing students, para-medical students and their families.” The court considered such use closely analogous to that of the residence quarters in Bethesda, and while we reaffirm the results in both cases, they are not dispositive of the issues before us now.

Other authorities cited by respondent include Community Memorial Hospital v. City of Moberly, supra, wherein it was held a charitably exempt hospital would not lose that status, though it accepted and charged full paying patients, unless its accommodations were devoted to such patients only and the hospital failed to receive or extend its services to the usual and ordinary number of indigents applying for admission. While the legal principle stated there is correct, the issues here were not involved.

More nearly related factually is St. Louis Gospel Center v. Prose, 280 S.W.2d 827 (Mo.1955), in which a three story fifteen room brick residence was purchased by a religious corporation and the questioned building was an “annex for the church operation.” Though the annex was largely used in connection with church work, various persons lived in the building “without rent” including students “who desire to study and know the Bible”. “[0]ther Christian workers who are interested in the Lord’s work” were permitted to reside there at modest rentals and all of the rentals were utilized by the Gospel Center for its religious educational and charitable work. While a large part of the “annex” was used for assembly rooms, group meetings, church office, religious services, Bible classes and directors’ meetings, at least two rooms were rented to a tenant who was not a worker or a family of a worker at the church or the Bible Institute. Against allegations that the deviation was “insubstantial, transitory and de minimis” and although the rent paid by the tenant was used in furthering the church’s religious purposes, such use of the premise by the tenant was sufficient to destroy “the ‘exclusive’ use of the property for such purposes within the meaning of the tax exempting provisions” of § 137.100. Similarly, in Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532 (1900), the Trenton Lodge No. 111, A.F. and A.M., which operated for fraternal, benevolent and charitable purposes, owned a three story brick building. The first story was rented as a storeroom, the second story also rented. The third was occupied by the members for charitable purposes as the lodge room. Notwithstanding the lodge’s purely charitable character or the fact that rentals from the first two stories were used for charitable purposes, the commercial tenants use of approximately two-thirds of the Duilding removed the exempt status for the entire property.

It may be argued that the special status of the physician-tenants in the Doctors’ Building at bar is more related to the owner’s charitable purposes than the tenants in Gospel Center or Fitterer because the physician-tenants must devote a part of their time and leased space to the hospital purposes. However, there is no adequate showing that the mandatory charitable service required of the physicians or the derivative charitable benefit from their presence is sufficient to overcome the fact that a substantial portion of the space was used for private practice of medicine and a portion of the premises was leased to the commercial pharmacy. It should be noted that the pharmacy was apparently in competition with respondent’s pharmacy located in the hospital building. Its presence has the same legal effect on the claimed exemption as the first floor storeroom tenant in Fitter-er and the non-member resident tenant in St. Louis Gospel Center.

For these reasons, the judgment of the trial court must be reversed with respondent’s questioned property restored to the tax rolls of St. Louis County and the county collector authorized to release and disburse the impounded taxes.

Turning now to appellants’ point two, they urge that we declare respondent bound by the adverse decision of the St. Louis County Council which denied respondent’s exempt status claim. Having found that no right of exemption adheres, it is unnecessary to reach the point.

The judgment as to Count I is reversed and the cause remanded so that judgment may be entered in accordance with this opinion. The propriety of the judgment of dismissal of Count II is moot.

MORGAN, C. J., and HENLEY, FINCH, DONNELLY and SEILER, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

BARDGETT, Judge,

dissenting.

I dissent because I believe the modern trend in construction and utilization of hospitals and perhaps other charitable-use property require an application by this court of the partial-exemption rule. This may require the overruling of a number of cases. In my opinion the rule would not violate any Missouri constitutional provisions as it would allow the exemption for those premises used exclusively for charitable purposes and not allow the exemption for premises not so used. See Illinois Institute of Technology v. Skinner, 49 Ill.2d 59, 273 N.E.2d 371 (1971). I see no legitimate reason for their being a difference in the tax consequence of constructing two buildings of four stories each — one for doctors’ offices (not charitable) and one for a hospital (charitable) — as compared with one eight-story building where four floors are hospital (charitable) and four floors for doctors’ private offices (not charitable).

Under the present rulings of this court, it appears that in the case of the separate buildings, the hospital premises would be exempted and the offices of doctors not exempt; but in the case of the single building in which one-half is exclusively charitable and one-half private (non-charitable) no exemption is allowed. In my opinion, the value of those premises (property) used for charitable purposes should be exempt regardless of whether they happen to be part of the same building or not.

I would reverse and remand this case to the circuit court with directions to consider the matter under the partial-exemption rule.

      . All statutory references are to RSMo 1969, unless otherwise indicated.

      . S.L.C.R.O. § 503.090 — “Correction of Erroneous Assessment, Hearing. In the event a petition for correction of an erroneous assessment is denied by the Board of Equalization, the taxpayer, . . . may within fifteen days thereafter file with the County Clerk a written request for the County Council to consider the petition and the Clerk shall promptly set the matter for hearing, and the County Council shall grant or deny the petition according to the facts and make all necessary orders for the correction of any errors found to exist and the assessment shall be corrected accordingly.”

      . Following the County Council’s denial of the petition in July, 1974, in the “second” proceeding described above, respondent, who had not otherwise sought review of that action, amended its petition then pending in the § 139.031 proceeding by adding a second count alleging “Plaintiff has exhausted all administrative remedies and is aggrieved by the final decision of the defendant St. Louis County, Missouri, acting by and though [sic] its County Council, in denying its petition.”

      . Twelve full-time salaried staff physicians, who directed the various hospital departments and the teaching program, maintained rent-free offices in the Doctors’ Building and were permitted some private patients whom they billed directly. One staff physician derived about 10% of his income from private practice.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Susan Lee ROSENER, Relator, v. The Honorable Herbert LASKY, Judge of the Circuit Court, County of St. Louis, Division Four, Respondent.
    No. 38366.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 24, 1977.

      Edward R. Joyce, St. Louis, for relator.
    Martin & Nangle, Richard P. Nangle, St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

In this original proceeding, Susan Lee Rosener, relator, seeks to prohibit respondent from issuing an order for her arrest and commitment for contempt.

The Circuit Court of St. Louis County entered judgment on November 6,1975 dissolving the marriage of relator and Daniel Lee. Care, custody and control of a minor child was awarded to relator, but temporary custody was awarded to the father for certain designated periods and from “February 7, 1976 to February 14, 1976; and each six weeks thereafter for a one week period of time.”

On April 30, 1976 respondent adjudged relator to be guilty of contempt for the “willful failure * * * to deliver the child of the parties to [Daniel Lee] on February 7, 1976,” and the court decreed that for such contempt she be committed by the sheriff of the County of St. Louis, State of Missouri to the county jail until certain action was taken by her. It was further provided that a warrant should issue “unless [relator] shall comply strictly with the Order of the Court dated November 6,1975 pertaining to the temporary custody and delivery of the child of the parties with the next week’s term of temporary custody commencing May 8, 1976 through May 15, 1976 and each sixth week thereafter.”

On July 12, 1976 Daniel Lee filed an affidavit with the court in which he stated that the child was “most recently” returned by him to relator on June 4, 1976 and “as prescribed by order of the Court dated November 6, 1975” the child was to have been delivered to him by relator on July 9, 1976, but that relator “absolutely refused” to do so. He requested that a “warrant issue to execute the order of the court dated April 30,1976, and [that relator] be committed by the Sheriff of the County of St. Louis, State of Missouri, to the County jail.”

On July 14 Daniel Lee’s attorney mailed to the attorney for relator a notice “that a hearing has been set on Friday, July 23, 1976 at 2:00 o’clock P.M. in Division No. 4 of the St. Louis County Circuit Court * * on [Daniel Lee’s] Affidavit of [relator’s] Non-Compliance of the Order of said Court dated November 6, 1975 pursuant to the Order of April 30, 1976 requesting a Warrant for the arrest of Petitioner for contempt and for her commitment to the St. Louis County jail.”

It is not clear from the record whether a hearing was held on July 23, but on that date the court entered an order that a warrant issue for the arrest and commitment to jail of relator “pursuant to said order of April 30, 1976,” which it then ordered to be “stayed to July 28,1976 at 5 p. m.” Apparently no further action was taken until September 8,1976 when this court issued its provisional writ of prohibition directing that respondent take no action in the matter until the further order of this court.

We conclude that the provisional rule of prohibition should be made absolute, but we reach that result wholly aside from any contention presented by relator.

Custodial provisions may be enforced through contempt proceedings, Lipsey v. Lipsey, 464 S.W.2d 529 (Mo.App.1971), but to justify adjudging one guilty of contempt for alleged violation of an order pertaining to custody, it must contain a mandatory or prohibitive order, and describe definitely what he is or is not to do. 17 C.J.S. Contempt § 12 p. 32. Therefore, “a party cannot be punished for contempt ‘for failing to do something not specified in the order.’ ” Ex parte Le Mond, 295 Mo. 586, 245 S.W. 1057, 1058 (banc 1922).

The terms of the order of November 6,1975 specifying the times that Daniel Lee was to have temporary custody of the child were changed by the Order of April 30, 1976 to “May 8, 1976 through May 15, 1976 and each sixth week thereafter.” Therefore, pursuant to the order of the court relator was to deliver temporary custody of the child to Daniel Lee on June 10 and again on July 31, each period of temporary custody to continue for one week. Relator had no duty by reason of the order of the court to deliver the child to him on July 9, the date he demanded delivery of the child, and her failure or refusal to do so could not constitute contemptuous conduct.

In his affidavit Daniel Lee states that the child had previously been returned to relator by him on June 4. He apparently predicated his claim to temporary custody starting July 9 on the theory that July 9 to July 16 was the sixth week thereafter. Perhaps the parties agreed that Daniel Lee should have custody for the week ending June 4, but they cannot by agreement change the order of the court, and relator cannot be held to be in contempt of court because she did not abide by a private agreement between her and the child’s father, if that is what happened.

The pleadings and exhibits on file in this case conclusively show that relator did. not violate any order of the court in refusing to deliver the child to its father on July 9, 1976. The court proposes to act beyond its authority in issuing a warrant for the arrest and commitment of relator to jail for contempt.

We express no views concerning the merits of the contentions made by relator in her brief to this court.

The provisional writ of prohibition is made absolute,

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.

      . This is true as to the order of November 6, 1975 if it be considered not to have been amended by the order of April 30, 1976.


author: GUNN, Judge.

text:
    William O’SHAUGHNESSY, Jr., et al., Plaintiffs-Respondents, v. WARD AIRCRAFT SALES & SERVICE, INC., Defendant-Appellant.
    No. 37274.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 24, 1977.

      Robison & Blanton, James R. Robison, Sikeston, for defendant-appellant.

      George E. Sullivan, O’Fallon, for plaintiffs-respondents.
   GUNN, Judge.

Plaintiffs brought an action in fraud arising out of the sale of a Cessna 177 airplane purchased by plaintiffs from defendant Ward Aircraft Sales and Service, Inc. In the first of a two count petition, plaintiffs alleged that Paul Bozwell, as agent for St. Charles Flying Service, Inc., misrepresented to plaintiffs the fact that the airplane was equipped with a 360 channel radio when it contained only a 90 channel radio. Count two of plaintiffs’ petition alleged that the log books kept in the Cessna 177 by Ward Aircraft misrepresented that the airplane was equipped with a 360 channel radio. The plaintiffs sought to recover $5,000 in actual damages and $25,000 in punitive damages from the defendants, Paul Boz-well, St. Charles Flying Service and Ward Aircraft. The jury returned a verdict in favor of plaintiffs against defendant Ward Aircraft, awarding plaintiffs $800 actual damages and $2,500 punitive damages. The record is silent as to the jury’s verdict concerning defendants Bozwell and St. Charles Flying Service. Presumably each was found not to be liable, and no appeal has been taken concerning these two defendants.

Ward Aircraft appealed raising four points of alleged error: 1) the trial court erred in overruling defendants’ motion for directed verdict at the close of the evidence; 2) the trial court erred in submitting plaintiffs’ damage instruction, in that it contained an incorrect measure of damages and was unsupported by the evidence; 3) the trial court erroneously submitted the issue of punitive damages, in that the evidence did not warrant the imposition of punitive damages; and 4) the trial court erred in overruling Ward Aircraft’s objection to plaintiffs' evidence concerning radio and navigational equipment which had been purchased, in that such evidence was irrelevant. We find that the plaintiffs failed to make a submissible case against Ward Aircraft and reverse the judgment.

Inasmuch as Ward Aircraft has challenged the sufficiency of the evidence, we view the evidence in the light most favorable to the plaintiffs giving them the benefit of every reasonable inference which the evidence tends to support. Jurcich v. General Motors Corp., 539 S.W.2d 595 (Mo.App.1976).

This litigation arises out of the purchase of an airplane by the plaintiffs from Ward Aircraft. Plaintiffs, William O'Shaughnes-sy, who was a licensed pilot, and his wife, Shirley O’Shaughnessy, who was taking flying lessons, had discussed the possibility of purchasing an airplane. Mr. O’Shaughnes-sy had particular interest in upgrading his license by obtaining an instrument rating which would qualify him to land an airplane by use of radio and navigational equipment when visibility was poor. The plaintiffs were introduced to Paul Bozwell, the sales manager for St. Charles Flying Service. Mr. O’Shaughnessy told Mr. Bozwell that he was looking for a 1968 or 1969 Cessna 177 airplane equipped with a 360 channel radio. A month after their initial meeting, Mr. Bozwell took the plaintiffs to look at a Cessna 182 equipped with a 360 channel radio, but plaintiffs rejected that airplane. About two weeks later the plaintiffs noticed on an advertising board at St. Charles Flying Service that a Cessna 177 with a 360 channel radio was advertised for sale in Sikeston and notified Bozwell that they would like to inspect the airplane.

Plaintiffs and Bozwell flew to Sikeston and inspected the airplane which was owned by Ward Aircraft. The airplane was partially disassembled and not in flying condition. Plaintiffs and Bozwell looked at the radio, but it was not in operating condition. The plaintiffs also looked at the airplane’s log book which contained a list of the airplane’s equipment. On the visit to Sikeston the plaintiffs did not meet or speak to anyone from Ward Aircraft, and no one mentioned or suggested to the plaintiffs that the airplane contained a 360 channel radio. Approximately two weeks later, the plaintiffs requested Bozwell to have James Ward of Ward Aircraft fly the Cessna 177 to St. Charles for another inspection’. For the first time, the plaintiffs met James Ward, and with their flight instructor, the plaintiffs took a test flight in the airplane. Mr. O’Shaughnessy testified that he was “disgusted” with the condition of the airplane and acknowledged that Bozwell had urged him not to buy the airplane, as a Cessna 177 was a very poor flying craft. At no time did the plaintiffs make any inquiry of anyone as to whether the airplane had a 360 channel radio, nor did anyone suggest to them that it was equipped with such a radio. In fact, the radio did not function and was not used on the test flight. Mr. O’Shaughnessy told Mr. Ward after the test flight that he did not want to purchase the airplane. However, Mrs. O’Shaughnessy persuaded her husband to purchase the airplane because it had a 360 channel radio and because she liked the airplane’s color. The purchase was made despite Bozwell’s admonition against the purchase of the Cessna 177; despite the fact that the radio had never worked for the plaintiffs; and despite the fact that no one from Ward Aircraft had ever made any oral representation that the airplane contained a 360 channel radio.

The plaintiffs purchased the Cessna 177 airplane from Ward Aircraft for $7,800. Two weeks after the purchase, while attempting to have the airplane’s radio repaired, the plaintiffs learned for the first time that it was a 90 channel rather than a 360 channel radio.

The plaintiffs thereupon sued St. Charles Flying Service and Paul Bozwell in one count and Ward Aircraft in another count, alleging misrepresentation of the radio by Bozwell as agent for St. Charles flying service and misrepresentation of the radio by Ward Aircraft by reason of the airplane’s log book listing of equipment. At trial the plaintiffs produced evidence elucidating the difference between a 90 channel and a 360 channel radio. Through various witnesses it developed that a 360 channel radio was preferable as it permitted landings at a greater variety of airports. Mr. O’Shaugh-nessy testified that after purchasing the Cessna 177 and finding that it only had a 90 channel radio he made two separate purchases of 360 channel radios. The jury returned a verdict in favor of plaintiffs against Ward Aircraft for $800 actual damages and $2,500 punitive damages.

The elements of a misrepresentation cause of action are: 1) a representation; 2) its falsity; 3) its materiality; 4) the speaker’s knowledge of the falsity or his ignorance of the truth; 5) the speaker’s intent that his statement be acted upon; 6) the hearer’s ignorance of the falsity of the statement; 7) his reliance on the truth of the statement; 8) the hearer’s right to rely on the statement; and 9) the hearer’s consequent and proximate injury. Ackmann v. Keeney-Toelle Real Estate Company, 401 S.W.2d 483, 488 (Mo. banc 1966); Teal v. Lee, 506 S.W.2d 492, 496 (Mo.App.1974); Yeager v. Wittels, 517 S.W.2d 457, 463 (Mo.App.1974). The burden rests upon the party who asserts the fraud to prove each of these elements. Powers v. Shore, 248 S.W.2d 1 (Mo. banc 1952); Yeager v. Wit-tels, supra. “Fraud is never presumed but must be proven. Creating a mere suspicion does not meet this burden of proof, for, 1. . .if the facts shown are consistent as well with honesty as with fraud, the transaction should be held honest.’ Bolten v. Colburn, Mo.App., 389 S.W.2d 384, 390; Williams v. Miller Pontiac Co., Mo.App., 409 S.W.2d 275.” Swager v. Vogt, 435 S.W.2d 49, 51-52 (Mo.App.1968). While fraud cannot be presumed, “it must be borne in mind that fraud is seldom susceptible of proof by direct evidence, but must almost invariably be shown by circumstances surrounding the transaction from which fraud may be reasonably inferred.” Yeager v. Wittels, supra at 463; Powers v. Shore, supra; Williams v. Miller Pontiac Co., supra. With these principles in mind we examine the record to determine whether the plaintiffs have made a submissible case.

The plaintiffs proceeded at trial on the theory that Mr.. Bozwell, for himself and St. Charles Flying Service and Ward Aircraft, separately, misrepresented that a 360 radio was in the Cessna 177. The plaintiffs did not claim or attempt to prove that Bozwell was Ward Aircraft’s agent or that Ward Aircraft would be responsible for Bozwell’s actions. Thus, we are concerned only with Ward Aircraft’s alleged representations concerning the radio. The record reveals that Ward Aircraft potentially made two separate representations concerning the radio: 1) the advertisement on the advertising board at St. Charles Aircraft, and 2) the information contained in the log book. As to the advertising board, we believe the jury could find that Ward Aircraft called Bozwell and told him that the Cessna 177 had a 360 radio and that Bozwell placed the information on the advertising board, although Bozwell emphatically denied that the board contained any such information. This is based on plaintiffs’ testimony that the advertisement listed the 360 channel equipment, together with Bozwell’s testimony that whatever information went on the board would come directly from the airplane’s owner. While the jury could have found that Ward Aircraft made this representation, it could not find that plaintiffs relied on this representation, (element # 8). Neither of the plaintiffs testified that they relied on this advertisement. Furthermore, when asked what he relied on in believing the plane had a 360 channel radio, Mr. O’Shaughnessy testified several different times that he relied solely on the log book and Mr. Bozwell’s representations. The plaintiffs positively conceded that they had never conveyed to Ward Aircraft that they were looking for a 360 channel radio, nor did Ward ever discuss with them or state that the Cessna 177 contained a 360 channel radio. This was the plaintiffs’ evidence.

Turning to the alleged representation contained in the equipment list of the plane’s log book, we find that the plaintiffs have failed to carry their burden of proving that the list represented that the plane had a 360 channel radio. The testimony concerning the equipment list is anything but clear. The plaintiffs concede that nowhere did the list actually state in so many words that there was a 360 channel radio. Mr. O’Shaughnessy testified that he saw listed a “Cessna Nav/Com 300” which he knew to be a 360 channel radio. The equipment list was admitted into evidence and deposited with this court. Our examination of the list reveals that several items appear as “Cessna Nav/Com 300” followed by differing and unexplained numbers and letters. Furthermore, the 90 channel radio that was in the Cessna 177 and was placed before us by plaintiffs prominently and specifically states on its face: “Cessna 300 NAV/COMM.” Thus, based on the only specific testimony as to what within the log represented a 360 channel radio, we must conclude that Mr. O’Shaughnessy mistakenly thought “Cessna Nav/Comm 300” was a 360 channel radio and that the representation he relied on did not in fact indicate that the radio had 360 channels. Based on Mr. O’Shaughnessy’s testimony and an examination of the radio introduced into evidence, it must be said that the radio was represented to be 90 channels and not 360. While it is possible that some item on the equipment list did indicate that there was a 360 channel radio, there is nothing in the record to show what that item specifically was. What we are left with is the bald assertion that somewhere in the equipment list Ward Aircraft represented that the radio had 360 channels, and furthermore that the item admittedly relied on did not in fact, based on the evidence in the record, represent anything other than a 90 channel radio. Mrs. O’Shaughnessy testified that a radio verification card found in the log book indicated that the radio had 360 channels. She testified that while the card did not specifically state the radio had 360 channels, there were certain numbers on it that indicated that it had 360 channels. Mrs. O’Shaughnessy testified, however, that she only learned about the meaning of the numbers some two weeks after they bought the plane. She did state that her husband knew the significance of the numbers on this card, but she then stated that they really did not totally rely on it. Mr. O’Shaughnessy in his testimony did not mention the card. He did state that he knew the radio had 360 channels due to the “Cessna Nav/Com 300” listing in the equipment chart and other “supporting evidence.” This vague statement is insufficient to support a conclusion that prior to the purchase he relied on the radio verification card. And, of course, the 90 channel radio in the airplane when purchased is clearly marked on its face as “Cessna Nav/Comm 300.” Furthermore, as indicated earlier, he testified that he relied on the log book and the statements made by Bozwell. Thus, even if the card did represent the radio as having 360 channels, the plaintiffs’ own testimony shows they did not rely on it. Having failed to prove that the log represented a 360 channel radio, plaintiffs have failed to carry their burden of proof on the first and second elements of their cause of action: that Ward Aircraft made a representation and that it was false.

Even if we were to conclude that there was substantial evidence that Ward Aircraft misrepresented the Cessna 177 as having a 360 channel radio, and that plaintiffs relied on these representations, we believe that the plaintiffs failed to prove the fifth element of their cause of action — the speaker’s intent that the bearer act upon the misrepresentation. The rule is firmly established that existence of a fraudulent intent, or an intent to deceive is an indis-pensible element of plaintiffs’ cause of action. Jefferson County Bank & Trust Co. v. Dennis, 523 S.W.2d 165 (Mo.App.1975); Cohen v. Metropolitan Life Insurance Company, 444 S.W.2d 498 (Mo.App.1969). There is nothing in the record to prove that any representative of Ward Aircraft knew of the importance placed by the plaintiffs on a 360 channel radio. The plaintiffs concede that they never informed anyone with Ward Aircraft that they wanted a 360 radio. Plaintiffs also acknowledge that no one from Ward Aircraft ever told them that the airplane contained a 360 channel radio; plaintiffs and Ward Aircraft never discussed radio equipment. The only person who had this knowledge was Mr. Bozwell. However, as plaintiffs did not proceed in trial on the theory that Bozwell was acting as an agent for Ward Aircraft, his knowledge cannot be imputed to the defendant. As Ward Aircraft was unaware of the importance of a 360 channel radio, even if it misrepresented the 90 channel radio as having 360 channels, it cannot be said that they did so with the intent to deceive the plaintiffs.

Plaintiffs’ evidence offers no proof that Ward Aircraft misrepresented the number of channels of the radio or that any misrepresentations were relied on by plaintiffs or that any misrepresentations were made by Ward Aircraft with the intent to defraud the plaintiffs. We therefore hold that a verdict should have been directed in favor of Ward Aircraft.

There is further reason for reversing the judgment. The record is lacking evidence of actual damages to plaintiffs. On each occasion when the plaintiffs inspected and tested the Cessna 177, the radio was inoperable, and the record is destitute of any evidence as to the value of a nonop-erating 360 channel radio, which is the type that plaintiffs allegedly assumed that they were acquiring with the purchase of the airplane. The only evidence regarding value of radios related to a new “Norko” brand 360 channel radio, not a used, nonfunction-ing Cessna 360 channel radio which plaintiffs thought to be in the airplane. Plaintiffs’ expert as to values on radios testified that the Norko was a superior radio to a Cessna and that he had absolutely no familiarity with the value of Cessna radios. Thus, there was no evidence to support a finding of actual damages to plaintiffs. The jury was required to speculate as to damages without any basis for determining with reasonable certainty what plaintiffs’ damages were, which, of course, will not serve as a basis for a finding of actual damages. Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596 (Mo.1968); Pallardy v. Link’s Landing, Inc., 536 S.W.2d 512 (Mo.App.1976); Lewis v. Hubert, 532 S.W.2d 860 (Mo.App.1976); Thienes v. Harlin Fruit Company, 499 S.W.2d 223 (Mo.App.1973). And without evidence of actual damages, there can be no exemplary damages. Compton v. Williams Bros. Pipeline Company, 499 S.W.2d 795 (Mo.1973); Adelstein v. Jefferson Bank & Trust Company, 377 S.W.2d 247 (Mo.1964); Ervin v. Coleman, 454 S.W.2d 289 (Mo.App.1970).

The judgment is reversed.

KELLY, P. J., and WEIER, J., concur.

      . At trial, Bozwell acknowledged that a Cessna 177 was listed on the advertising board but categorically denied that there was any reference on the board to radio equipment or location of the aircraft.

      . From the testimony, Federal Aviation Administration regulations require that equipment lists must be kept current and that the owner of the airplane has the responsibility, before transferring an airplane, to supply the new owner with a listing of all equipment.

      . This is evident both from plaintiffs’ pleadings and verdict directing instructions. The instructions were written to enable the jury to find Bozwell and his employer, St. Charles Aircraft, liable for Bozwell’s representations, and Ward Aircraft liable for Ward Aircraft’s representations.


author: DOWD, Judge.

text:
    In the Interest of J. J., a minor.
    No. 37177.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 7, 1977.

      Doris Gregory Black, St. Louis, for minor-appellant.
    Richard 0. Moore, Legal Officer, Thomas R. McGinn, Director of Legal Services, David B. Agnew, Chief Trial Officer, St. Louis, for respondent.
   DOWD, Judge.

J. J. appeals from the order of the Juvenile Division of the Circuit Court, adjudicating appellant to be a juvenile within the provisions of Section 211.031(l)(c) and (d) RSMo 1969 and ordering appellant committed to the Division of Youth Services for a recommended confinement at the Boone-ville or Poplar Bluff facility for at least 2 years. On appeal, appellant argues: (1) that the trial court erred in admitting into evidence, pursuant to stipulation, a report summarizing the juvenile authority’s legal investigation without first determining whether the stipulation was voluntarily, knowingly, and intelligently made; (2) that the trial court erred in finding appellant to be a juvenile within the provisions of Section 211.031(l)(c) and (d); and (3) that the trial court erred in accepting appellant’s stipulation to admit the legal, investigatory report and delinquency petition prior to admonishing appellant that he could be committed to a facility until he was 21 years of age.

The facts are as follows: In 1974, J. J. was found to be within the provisions of Section 211.031 and was committed to the custody of the Division of Children’s Services, Missouri Hills. Following an incident which allegedly occurred during J. J.’s commitment, juvenile authorities filed a petition to certify J. J. for trial as an adult upon charges of assault with the intent to rape, § 559.190 RSMo 1969, and first degree robbery,. § 560.120 RSMo 1969. These charges were based on the alleged attempted rape and robbery of a psychiatrist while confined at Malcolm Bliss Hospital in St. Louis.

A hearing was held upon this certification petition which J. J. and his mother attended. Attorneys for J. J. and the Juvenile Division stipulated that various reports would be admitted into evidence, including a Legal Investigation prepared by Mr. Ledgerwood summarizing his investigation and the statements of the alleged victim.

Appellant introduced the results of a private psychiatric examination by stipulation and requested a continuance in order to place J. J. in a private mental health facility in Denver, Colorado.

Upon the recommendation of the Juvenile Division, the court dismissed the certification petition and sustained a motion to modify the terms of the original commitment order. Evidence introduced in the matter of the certification petition was made a part of the record pertaining to the motion to modify, and the court found that the facts stipulated constituted assault with the intent to ravish and robbery in the first degree. Temporary custody of J. J. was placed in St. Mary’s Hospital psychiatric ward until J. J. could be placed in the Denver mental health facility.

When J.' J.’s mother was unable to obtain J. J.’s admission to the Denver hospital, the Juvenile Division again moved to modify the terms of commitment. After another hearing, the court sustained the motion and committed J. J. to the Division of Mental Health for 90 days for psychiatric evaluation, during which time, J. J.’s mother would attempt to place J. J. in a private facility in South Dakota.

At the conclusion of the 90 day evaluation, another hearing was held. J. J.’s mother had been unable to place J. J. in the South Dakota facility. The court committed J. J. for a minimum of 24 months to the Division of Youth Services, recommended placement at the Booneville or Poplar Bluff facility.

Appellant’s first point is the trial court erred in accepting the Legal Investigation into evidence upon stipulation without first determining whether the stipulation was made voluntarily, knowingly, and intelligently. Appellant contends the stipulation was analogous to a guilty plea and waived appellant’s constitutional right to have guilt proved beyond a reasonable doubt, right to confront accusers, and right against self incrimination.

Appellant’s contention that the stipulation to admit the Legal Investigation into evidence was akin to a guilty plea misses the mark. The Legal Investigation was not admitted for the purpose of adjudication of delinquency but for the purpose of disposition of custody. The questions of culpability and disposition are two separate issues. See In re G., 455 S.W.2d 3 (Mo.App.1970). Appellant had previously been adjudicated a juvenile delinquent and custody placed in the Division of Children’s Services, Missouri Hills. No appeal was taken from these proceedings. The Legal Investigation was admitted at the hearing on the motion to modify custody due to a change in circumstances. The Legal Investigation was admitted, like a presentence investigation, to help the juvenile court determine what kind of disposition was best suited to appellant’s situation, the prior disposition having been proved less than satisfactory.

We find nothing in the record to indicate that appellant was not afforded due process in these proceedings. It is apparent that the juvenile court attempted to give appellant the opportunity to arrange private care. Only after appellant’s attempts failed did the juvenile court place custody in the Division of Youth Services, Boone-ville or Poplar Bluff facilities. The juvenile court did not err in accepting the stipulation to admit the Legal Investigation.

Appellant’s second point is the trial court erred in finding appellant to be a juvenile delinquent within the provisions of Section 211.031(l)(c) and (d) beyond a reasonable doubt. Appellant contends that .the trial court’s finding was based upon the facts summarized in the Legal Investigation. Once again, we point out that the finding of delinquency was not made at the hearing at which the Legal Investigation was admitted. The Legal Investigation was properly admitted into evidence and provides sufficient evidence to sustain the trial court’s finding upon the dispositional issue.

Appellant’s third point is the trial court erred in accepting appellant’s stipulation to admit the Legal Investigation without warning appellant he could be committed until the age of 21. Appellant’s point is based upon the argument that the stipulation was equivalent to a guilty plea. We reject such a contention. Appellant did not plead guilty.

We have found no error and affirm the judgment of the trial court.

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

      . The Juvenile Division’s Social Investigation prepared in connection with the certification petition, the Diagnostic and Treatment Center (psychological) report, and a prior Social Investigation were also introduced into evidence by stipulation.

      . The juvenile court retains jurisdiction to modify the dispositional order pertaining to a juvenile adjudicated to be within the purview of Section 211.031, supra. § 211.251 RSMo 1969; State ex rel. McCarty v. Kimberlin, 508 S.W.2d 196 (Mo.App.1974).


text:
    J_ A_ F_, Appellant, v. P_ J_ F_, Respondent.
    No. 37511.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 7, 1977.

      Steiner & Fenlon, Joseph A. Fenlon, Clayton, for appellant.
    Gunn & Gunn, Donald Gunn, Jr., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

In this case, the trial court decreed dissolution of the marriage of the parties, made an award to each party of the marital property, entered an award for maintenance in favor of appellant-wife in the amount of $500 a month, and awarded care, custody and control of a seven year old minor female- child to the father with periods of temporary custody in the mother at specifically stated times. Petitioner-wife has appealed and asserts error on the part of the trial court (1) in awarding “full custody” to respondent, (2) in failing to return the child to appellant pursuant to a post-trial motion, (3) in awarding only $500 a month as maintenance, and (4) in excluding a profit sharing plan from the marital property. We affirm.

We see no occasion to set forth a detailed statement of the evidence which brought about an award of custody of the child to her father. It is sufficient to say that from the evidence, if believed, which the trial court apparently did, the court could have found that appellant failed to care for the child properly, permitted her to roam the neighborhood, left the child alone in the house of evenings while she played bridge or went to bars, drank frequently and to excess, used foul and indecent language in the presence of the child, and while in her house or in the house of another engaged in illicit sexual conduct while the child was present in the house. In addition she permitted a single male friend to live in the house with her and her daughter.

In her brief to this court appellant argues that the award of custody to the father was erroneous because the evidence showed that (a) the child had been with the mother from birth, (b) the child was receiving adequate care from the mother, (c) the mother was unemployed and able to devote full time to the care of the child, (d) respondent was employed full time and was required to be out of town frequently and would have to hire a housekeeper to take care of the child, (e) under the decree, as issued, the father would be with the child less than if he had weekends of temporary custody, and (f) there was no evidence that the mother’s misconduct made her unsuitable as a custodian for the child.

The weight of the evidence is clearly contrary to appellant’s contentions (b) and (f). As to contention (c), it is true that appellant was not employed and was able to devote full time to the care of the child, but the evidence compels the conclusion that she did not do so. It is also true that respondent had to make special arrangements to care for the child. However, he agreed to do so, and we have nothing before us to indicate he has failed in that respect, and the court apparently was of the opinion that this arrangement would be for the best interest of the child.

By reason of the limitations on the scope of review in this court tried case, “the decree or judgment of the trial court will be sustained * * * unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In matters involving the custody of a minor child of divorced parents, there are no precise and inflexible rules that are applicable to every case. Each case must turn on its own facts. Overriding all other considerations is the court’s paramount concern of reaching the result which is in the best interest and welfare of the child. Brand v. Brand, 534 S.W.2d 628 (Mo.App.1976). The ruling of the trial court concerning the proper party to have custody is “not to be lightly disturbed and will be deferred to unless the [reviewing] court is firmly convinced that the welfare of the [child] requires some other disposition.” Ackfeld v. Ackfeld, 483 S.W.2d 614, 616 (Mo.App.1972); Glaves v. Glaves, 523 S.W.2d 169 (Mo.App.1975); In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975). We recognize that it is a well established principle that, other things being equal, custody of children of tender years, especially girls, should ordinarily be awarded to the mother. Payne v. Payne, 399 S,W.2d 619 (Mo.App.1966). However, courts are not unwilling to award custody to the father where the best interest of the child will be served, and this is so even though the mother is a fit and proper person. M_ L_ v. M_ R_, 407 S.W.2d 600 (Mo.App.1966); Jaros v. Jaros, 395 S.W.2d 217 (Mo.App.1965). In this case, the court found that the best interest of the child would be served by placing custody in the father with visitation rights in the mother. In a post-trial order, pursuant to § 452.405, Laws of Missouri 1973, p. 470, the court directed the county juvenile officer to exercise continuing supervision over the case. In this way the court will become aware of any change in the circumstances.

Appellant relies on In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975). There the trial court awarded custody of a four year old son to the father because he was a “more stable person” than the mother. This court reversed, and in doing so found that the mother was not unsuitable to have custody, and that in these circumstances “ ‘a mother is deemed to be the one best able to care for a child of tender years.’ ” This case is to be distinguished in that the evidence clearly justifies the court in concluding that custody of this child should not be placed with appellant. At a hearing on a post-trial motion, hereafter discussed, the trial court had the opportunity to examine and review the manner in which respondent was caring for the child, and it continued custody in the father.

The evidence, considered in its entirety, supports the decree of the court that custody of this seven year old little girl should not be placed in the mother, and we cannot say that the decree placing custody in the father was not in the best interest and welfare of the child.

Appellant’s second point is that the court erred in failing to return the child to her pursuant to her request in a post-trial motion.

The judgment was entered on September 18, 1975. Eight days later appellant filed a motion to “open judgment and take additional testimony.” On October 16, a hearing was held after the court stated that it would consider the motion filed as one to modify the decree.

At the hearing it was developed that a few days after the entry of the decree, respondent requested appellant to deliver custody of the child to him pursuant to the decree and she refused because, as she stated, she intended to appeal. Respondent then entered the house, using his key, and took the child to his apartment. He had two police officers with him who, as one officer testified, were there only “to keep the peace” and not enforce any “court injunction or order.”

Appellant argues that the court erred in not transferring custody to her as a result of the hearing on the motion because:

(a) Respondent took the child “three days after the decree was entered and before the judgment became final,” and did so at 9:00 o’clock of an evening in the company of two police officers.
(b) Respondent knew the child was emotionally upset at the time because of the dissolution proceedings.
(c) Respondent entered the child in a new school in a different neighborhood.
(d) Respondent continued working and hired a babysitter to be with the child “notwithstanding his representation to the trial court that if awarded custody he would stay home one month while the girl got used to her surroundings.”

Near the close of the hearing on the motion the court commented to counsel that it had heard sufficient evidence to convince it that the award of custody to the father was correct. The evidence does not support the assertion that the child was emotionally upset. Also the change in schools was desirable because of the location of respondent’s apartment in relation to the school the child previously attended. We find no “representation” by respondent that if he was awarded custody he “would stay home one month.” He did assure the court that he had “permission” of his employer to take whatever time it required in the form of a leave of absence to get “set up properly in a household.”

The conclusion of the trial court not to change its award of custody is not contrary to the evidence and did not constitute an abuse of discretion. We find no merit to appellant’s second point.

Appellant next asserts that the trial court erred in awarding maintenance to her in an amount of only $500 a month when her monthly expenses were in excess of $949 (her list of expenses totaled $927) and when she had no particular skills which would enable her to earn an immediate substantial income.

By division of the marital property, the court awarded appellant a checking account, a Toyota automobile, some land in Arizona and the household furniture and furnishings, the total value of which was estimated to be $7,000.00. Respondent received cash, the equity in the house, a boat, two shares of stock and “McDonald’s Profit Sharing Plan” the value of all of which was estimated to be $32,758.29. In order “to more equalize the division of assets,” the court then awarded a judgment in favor of appellant and against respondent in the amount of $10,000.00, to be paid to her at the rate of $400.00 a month. This resulted in appellant receiving $17,000.00 of the marital assets, and respondent receiving $22,758.29. In making the award of $500 a month for maintenance the court observed that appellant “is an able-bodied woman who will not have custody of any minor child pursuant to the provisions of this decree, and that the award of maintenance herein should terminate or be substantially reduced immediately upon [appellant] obtaining suitable employment or upon [appellant] acquiring adequate training to enable her to find suitable employment.”

We note that the monthly expenses listed by appellant includes $404 a month for the mortgage payment on the house and $180 a month for utilities. The house was awarded to respondent. It is true that appellant will have some rent, and possibly utilities, to pay, but the total should be substantially less than $584 a month.

By reason of § 452.335, the trial court is directed to make provisions for the reasonable need of the spouse seeking maintenance, but as noted in Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977) subsection 1 of that section indicates that if possible such reasonable needs are to be met by income of the spouse seeking maintenance and the trial court’s division of property. Appellant has a beautician’s license in Illinois and expected to get a license in Missouri in about a year. As the court found, at the time of trial she was able to work. She has available to her $900 a month, and that can be increased by some gainful employment. We find no abuse of discretion in the awarding of $500 a month maintenance.

Appellant’s last point is that the trial court erred in not including as marital property a profit sharing plan of the husband which was worth $3,037.94 at the time of the marriage, “to which the husband had made contributions for two years during the marriage,” and which was worth $10,-552.23 at the time of dissolution. This plan was referred to in the judgment as the Nicolet Foods Profit Sharing Trust. It was set apart by the trial court to respondent as his separate property. It is to be distinguished from what was referred to as the McDonald’s Profit Sharing Plan which was held to be marital property.

At the time of the marriage, September 16, 1967, respondent was employed by “a franchise in Minneapolis, Minnesota,” which was acquired by McDonald Corporation, respondent’s subsequent employer in April 1969. The former employer maintained a profit sharing plan into which respondent “never put any money,” and when Nicolet Foods was acquired by McDonald Corporation “the fund was closed” and became “a depositary fund where nothing was paid out of it, nothing more goes into it.” Any change in value thereafter, according to respondent, depended “solely on the market.” The record does not indicate whether the income is added to the principal or distributed, and if the latter in what manner. There is nothing in the record to indicate for how long the Nicolet Plan was in existence before it was “closed,” or in what event or circumstances respondent will be able to obtain his interest in the fund, or as to how such interest will be payable, that is, in a lump sum or in periodic payments. Neither is there any evidence as to how much was contributed to the fund after September 16, 1967, the date of the marriage, and until the fund was “closed.”

Appellant argues that since the value of respondent’s interest at the time of dissolution was estimated to be $10,552.23, there was an accumulation or increase in value during the marriage of $7,514.29, and that she should be awarded 43.37% (the percentage of marital property awarded to her) of the accumulation, or $3,253.69. [$3,258.94] The effect of this contention is to concede that the interest of respondent at the time of the marriage was his separate property, but that increases in value during the marriage by reason of changes in “market” value constitute marital property. This contention is directly contrary to the provisions of § 452.330 wherein it is provided that “marital property” means all property acquired by either spouse subsequent to the marriage except “the increase in value of property acquired prior to the marriage.”

As previously noted, there is no evidence that anything was contributed to the Nico-let Profit Sharing Plan during the marriage, and appellant’s point, as limited by the argument in support of the point, pertains only to an increase during the marriage of separate property of respondent. We find no error in the ruling that the Nicolet Profit Sharing Plan was separate property.

The judgment is affirmed.

SIMEÓNE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: CLEMENS, Presiding Judge.

text:
    Larry D. POSTON, Appellant, v. Viola WORLAND and Loyd Davidson, Respondents.
    No. 38113.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 7, 1977.
    McQuie & Deiter, Daniel W. Deiter, Montgomery City, for appellant.
    Van Matre & Van Matre, William W. Van Matre, Mexico, for respondents.
   CLEMENS, Presiding Judge.

Plaintiff Larry Poston is the record owner of a 20-acre tract of unimproved land. Defendant Viola Worland is in possession of 11.5 acres thereof which lies between the parties’ farms. Plaintiff Poston sued for possession and to quiet title to the 11.5-acre tract and defendant Worland counterclaimed, alleging she had acquired title to the tract by adverse possession. (§ 516.010, RSMo.1969). The trial court denied plaintiff’s petition and found for defendant on her adverse possession counterclaim.

Plaintiff appeals, contending defendant failed to prove she had been in adverse, hostile, actual, open and notorious possession for ten years, as was found by the trial court.

In our review we give due regard to the trial court’s ability to judge the credibility of the witnesses. No specific findings of fact having been made or requested we assume the trial court found as true those facts tending to support its finding of defendant’s adverse possession. Rule 73.01, 3(b) and 1(b).

So considering the evidence tending to support adverse possession, we relate the facts. The 20-acre tract is an irregular rectangle lying on the east side of plaintiff’s farm and on the west side of defendant’s farm. Down the central part of the 20-acre tract runs the “x-fence,” the disputed boundary. The tract in dispute lies to the east of the x-fence and adjoins the west side of defendant’s farm.

A core issue at trial concerned the erection of the x-fence. Defendant Viola Wor-land and her husband, now deceased, bought their farm in 1959, and along with the seller walked the purported boundaries. On the west side they found an old, fallen fence, purportedly the farm’s west boundary. Early in 1960 the Worlands bought metal posts and barbed wire and built the x-fence along the line of the old fence. This evidence is undisputed except for several of plaintiff’s witnesses who testified the x-fence was not built until later in the 1960’s.

The north end of the x-fence meets a county road running through plaintiff’s farm. Because the fence runs south through rough, wooded land, it is visible from the county road for only some 50 yards, but from plaintiff’s adjoining farm the fence is visible for its entire length. At the northwest corner of the disputed 11.5-acre tract, where it adjoins the county road, defendant in 1960 put up a “no trespassing” sign and maintained it there until trial time.

As soon as defendant and her husband completed the x-fence in 1960 they bought 100 head of feeder cattle and began pasturing them up to the x-fence. Defendant and her tenant-son have continued to so use the disputed 11.5-acre tract. Neither plaintiff nor his predecessor in title has ever attempted to use the disputed tract nor challenged plaintiff’s exclusive use of it.

We have considered the evidence in the light of the remarkably parallel case of Moss v. James, 411 S.W.2d 104[1, 2] (Mo.1967), where it was held the evidence met the test of title by adverse possession: “There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be hostile, and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and fifth, it must be continuous.” Plaintiff challenges each of these five elements but his arguments are based generally on his own favorable evidence and on cases factually unlike the case before us.

We find each of the required legal elements was met by substantial evidence and the trial court did not err in decreeing defendant had acquired title by adverse possession.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: BROCK, Justice.

text:
    FRAYSER ASSEMBLY CHRISTIAN SCHOOL, Appellant, v. Ronald Wayne PUTNAM, Appellee.
    Supreme Court of Tennessee.
    May 31, 1977.
    Louis E. Eubanks, Joseph T. Kirkland, Jr., Memphis, for appellant.
    Lawrence E. Marshall, Winchester, Walsh & Marshall, Memphis, for appellee.
   OPINION

BROCK, Justice.

This is a workmen’s compensation case. The complaint demanded judgment for benefits for medical expenses, temporary total disability and partial or total permanent disability. The answer contested plaintiff’s claim as alleged.

On March 4, 1976, the trial court entered a decree adjudging that the accident alleged was compensable, awarding $7,123.87 for medical expenses incurred and awarding benefits totaling $3,380.00 for temporary total disability from January 28, 1975, the date of the accident, through January 1, 1976. This decree expressly reserved to some future hearing a determination of plaintiff’s claim for “future medical expenses and permanent disability . without prejudice to the rights of either party to introduce proof on these matters.” The decree also contained the defendant’s exception to “all aspects of the instant order” and granted leave to the defendant to “post a bond and to otherwise perfect its appeal within thirty (30) days of the entry of this order.”

This appeal was thereafter timely perfected and assignments of error and briefs were filed in this Court. However, prior to oral argument, the appellee filed a motion that the cause be remanded to the trial court with leave granted to either party to make application to the trial court for a compliance with the requirements of T.C.A., § 27-305, for the allowance of a discretionary interlocutory appeal. The appellant, in responding to this motion, agreed that the cause should be remanded, not for a compliance with T.C.A., § 27-305, but for the entry of a final decree adjudicating all issues and claims for relief contained in the pleadings.

In Aetna Casualty & Surety Co. v. Miller, Tenn., 491 S.W.2d 85 (1973), this Court held that a decree in a workmen’s compensation case which, like this one, adjudicates com-pensability and awards benefits for temporary total disability but reserves to a future date the determination of the employee’s claim of permanent disability was not a final decree and, therefore, was not appeal-able to this Court in the absence of a statute conferring jurisdiction of such an interlocutory decree or judgment. Because the interlocutory appeals statute, T.C.A., § 27-305, as it then existed, did not cover such a decree, the Court dismissed the appeal and remanded the cause for entry of a final decree adjudicating all issues presented by the pleadings.

Since the Aetna decision, T.C.A., § 27-305, has been extensively amended. It may be that this statute, as now worded, will permit an interlocutory appeal of a decree such as is here involved, although we express no opinion, one way or the other, whether it will or not. That question is not ripe for decision upon this record.

Even if T.C.A., § 27-305, be assumed, arguendo, to permit an interlocutory appeal from a decree or judgment such as the instant one, it is clear that the requirements prescribed by that statute for certification by the trial judge of such an appeal have not been met in this case. A compliance with such requirements is an absolute prerequisite to an appeal under this statute. Loyd v. State Farm Mut. Auto. Ins. Co., Tenn., 521 S.W.2d 556 (1975). A proper certificate is essential to confer jurisdiction upon the appellate court. The required certification must be contained in the judgment or decree appealed from or in the order granting the appeal. That was not done in this case.

Accordingly, the instant appeal must be dismissed. The cause is remanded to the trial court for further appropriate proceedings which, in the discretion of the court, may consist of an adjudication of all issues and entry of a final decree or the allowance of an interlocutory appeal in compliance with the requirements of T.C.A., § 27-305, if the court considers that such an appeal is permissible under that statute and should be granted.

Costs of this appeal are taxed against the appellant.

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

      . On March 25, 1976, another order was entered granting “an appeal and an appeal in the nature of a writ of error” and allowing until April 1, 1976, for the filing of an appeal bond and until May 31, 1976, for filing and approval of a bill of exceptions.


author: TODD, Judge.

text:
    GRINNELL FIRE PROTECTION SYSTEMS CO., INC., Plaintiff-Appellant, v. W. C. EALY & ASSOCIATES, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section, Nashville.
    Original Filed Feb. 25, 1977.
    Certiorari Denied by Supreme Court June 6, 1977.
    Abridged for Publication July 5, 1977.

      Jerry W. Wallace, Wade, Forrester, Hays & Wallace, Pulaski, for plaintiff-appellant.
    Jack B. Henry, Henry & Henry, Pulaski, for defendant-appellant.
   OPINION

ABRIDGED FOR PUBLICATION

TODD, Judge.

The plaintiff, Grinnell Fire Protection Systems Co., Inc., sued defendant, W. C. Ealy & Associates, Inc., for balance due for performance of a construction subcontract. The defendant filed a cross action for breach of said contract. The Chancellor allowed the amount sued for by plaintiff and sustained part, but not all, of defendant’s cross action. Both parties have appealed.

This case arises out of the construction of a manufacturing plant in Lewisburg, Tennessee for the owner, Koh-i-noor Radio-graph, Inc.

On August 9, 1973, said owner contracted in writing with defendant to furnish all labor and materials for construction of a building according to plans and specifications attached to the contract.

On October 11, 1973, plaintiff wrote to defendant the following letter:

“Gentlemen:
We are pleased to confirm our verbal quotation in the amount of Thirty-Four Thousand Nineteen and 00/100 Dollars ($34,019.00), for the necessary labor and material to provide automatic wet pipe sprinkler protection throughout the proposed 180' X 350' manufacturing building and 40' X 80' office area at the subject location.
We propose to start at the valve pit approximately 80'-0" from the northwest corner of the building, provide underground supply piping on the north, east and west side of the building supplying hydrants on the southeast and southwest corners and one hydrant on the north side at the approximate center of the building and two riser supply entrance points at the north wall, including excavating and backfilling. We further propose to furnish the control valves, alarm valves, six (6) small hose stations, necessary Duras-peed brass finish pendent and upright sprinklers, including additional sprinkler protection for the concealed space of the Cosmotology Area, Rooms 27-33, pipe, fittings and hangers.
We do not include connection to the existing city water main, piping from the city main to within 80'-0" of the northwest corner of the building, construction of the valve pit complete, rock excavation, painting or electrical wiring.
Our terms of payment are in the sum of ninety percent (90%) of the price of materials delivered and work performed in the month immediately preceding and the balance within thirty days after completion.
Thank you for the opportunity to quote. We will proceed with the installation upon receipt of two (2) signed copies of our proposal, your purchase order or contract.
Very truly yours,”

Thereafter, on November 7, 1973, plaintiff contracted in writing to furnish all labor and materials for construction of a sprinkler system in said building for the price of $34,019.00. Said contract contained the following material provisions:

“2. The Subcontractor shall furnish all labor, materials, equipment, fees, licenses, permits, etc., and shall perform all the Work for: Sprinkler System in accordance with the requirements of Factory Mutual Insurance Company. Furnish all labor, material, engineering and drawings, also extra requirements of Double Sprinkler Systems over Cosmotology Area. Rock Excavation shall be extra to the contract. Furnish proper Certification of Acceptance from Factory Mutual Insurance Company.
“3. The Subcontractor shall promptly submit shop drawings and samples as required in order to perform Work efficiently, expeditiously and in a manner that will not cause delay in the progress of the Work of the Contractor or other Subcontractors. The Subcontractor agrees to begin installation of the Work within five (5) days after receiving notice, either written or oral, from the Contractor. Should the Subcontractor, at any time, fail, refuse or neglect to supply sufficient material, tools, labor or properly skilled workmen to complete the Work without delaying job progress, for five (5) days after written notice of such default to Subcontractor, Contractor may at any time thereafter take over and complete the Work. The cost to Contractor of completing such work shall be deducted from any moneys due Subcontractor; .if such costs exceeds any such moneys, Subcontractor shall reimburse Contractor.”

Plaintiff completed the installation of the sprinkler system which was approved by a representative of Factory Mutual Insurance Company, and plaintiff received partial payment reducing the amount due for performance of the contract to $16,229.48.

Sometime after the execution of the contract and before performance of same, it was discovered that the water pressure of the available water supply was inadequate for proper performance of the sprinkler system and that a “booster pump” was required to supply the desired pressure. Plaintiff notified defendant of the situation and offered to install the necessary booster pump (without a pump house or shelter) for $15,275.00. Defendant insisted, and now insists, that it was the duty of plaintiff to supply and install the “booster pump” without additional charge. Plaintiff denied any such obligation and declined to provide the booster pump without additional compensation.

Finally, the desired pump and necessary pump house was provided by defendant. As a result of delay in final completion of the project, defendant was penalized the contract penalty of $1,000.00 per week for 20 weeks.

The original suit of plaintiff was for the $16,229.48 due for its performance of the contract. This amount is admitted to be correct and was allowed by the Chancellor.

The countersuit of defendant was for the cost of pump installation and $20,000.00 penalty suffered for delay.

The Chancellor allowed plaintiff’s claim of $16,229.48, but also allowed the counterclaim of defendant to the extent of $30,-061.25 for pump and pump house, resulting in a net judgment in favor of defendant and against plaintiff in the amount of $13,-831.77.

The plaintiff has filed seven assignments of error, the determinative essence of which is that plaintiff had no duty to install the pump.

It is not denied that this was a “design and build” contract, wherein the general contractor was given only general or “skeleton” specifications of the construction, and the general contractor was required to provide specific design details for attainment of a suitable result. Plaintiff admits responsibility for design and construction of a sprinkler system, but denies responsibility for design or construction of a water supply system.

Thus, the issue is whether the contract of plaintiff with defendant, requiring plaintiff to design and furnish a sprinkler system, either expressly or otherwise included the duty to investigate the nature of the water supply in terms of quantity, rate of flow and pressure, and to include in the design of the sprinkler system the necessary equipment (pump) to produce the necessary supply, flow and pressure.

The term “Sprinkler Systems,” as used in said contract, does not connote a duty to design and install the equipment necessary for producing the quantity, rate of flow and pressure of water required for the sprinkler system.

There is no evidence that the term, “Sprinkler Systems” has such a recognized meaning in the trade so as to bind plaintiff accordingly. The architect undertook to support the insistence of defendant, but his testimony is of no value because of his lack of qualification and failure to state any established practice in the trade. The architect admitted that he was not an engineer. The engineering supervision of the sprinkler installation was left to the fire prevention engineer of Factory Mutual Insurance Company who disclaimed any knowledge of whose duty it was to design and furnish the pump.

Where words in a contract are of uncertain meaning, prior negotiations between the parties are competent evidence to shed light upon the intended meaning of the words in the contract. Turner v. Zager, 50 Tenn.App. 674, 363 S.W.2d 512 (1962). Plaintiff’s letter of October 11, 1973, expressly limits the area of intended responsibility and specifies the particular equipment to be included in the “Sprinkler Systems.” There is no contradiction of this most persuasive evidence.

On May 13, 1974, a report of satisfactory completion of the sprinkler systems was signed by representatives of the defendant and the owner. At this time, the installation had been approved by the representative of the Factory Mutual Insurance Company. The fact that the sprinkler installation was approved as a unit without the pump is evidence of the intention of the parties that the sprinkler systems were separate from the supply system.

The “Loss Prevention Report” rendered to the owner by Factory Mutual on September 17, 1974 stated:

“The Grinnell Sprinkler Company of Nashville, Tennessee has satisfactorily installed automatic sprinkler protection inside the building and underground yard mains. The automatic sprinkler installation is hydraulically designed in all areas of the plant. . . .”

Defendant places heavy reliance upon various factual conclusions of the Chancellor, but such conclusions can have no weight except as supported by evidence.

There is no substantive evidence to show a contractual duty on the part of plaintiff to investigate water supply and to design and furnish necessary pumping equipment (and housing therefor) as a part of his contract.

In the absence of any such evidence, common reason requires an interpretation of the contract which treats water supply problems as an entirely separate feature of the project from sprinkler systems.

In the view of this Court, the contract of plaintiff was to furnish and install a system of pipes, valves, fittings and accessories sufficient to adequately and satisfactorily convey and dispense water throughout the building for extinguishment of fires. Plaintiff did not contract to furnish the water supply to fill the pipes with water. If there had been no water available, plaintiff was not obligated to dig wells, build reservoirs or lay a pipeline to the nearest water source. The water supply pressure is a characteristic of the supply of water and not a part of a sprinkler system.

By analogy, the designer and installer of the electric light and power system would not be expected to guarantee an adequate supply of electricity to power the system and, if necessary, to provide at his expense a generating plant to furnish power or to supplement available power. By the same token, the installer of a heating system would not be responsible for providing an adequate supply of coal, gas or oil.

The present controversy arises from the effort of the owner to save money by requiring each subcontractor to furnish the necessary engineering and design for his part of the work. Ordinarily, the architectural firm or a separate engineering firm assumes full responsibility for the engineering and design of the entire project, in which event there is no chance of overlooked details. However, where the engineering and design responsibility is split among many subcontractors, there is a strong probability that engineering details will be overlooked because they are not included in any subcontract.

Such is the situation in the present case. The responsibility of investigating quantity, flow and pressure of the available water supply would have been assumed and discharged by the engineer in overall charge of design. However, there was no such engineer, and the responsibility was not placed upon any subcontractor. It is true that the Factory Mutual Insurance Company was assigned some engineering responsibility, but its duties were to approve the finished product rather than to design facilities or to assign duties of designing facilities as would have been done by a general supervising engineer.

Thus, the problem which did arise was inherent in the nature of the method adopted for design and construction. The omission to anticipate the need for a pump is attributable to no one in particular, but to the method of planning which afforded the opportunity for an omission in assignment of responsibility.

The owner would suffer no real loss in being required to pay for the pump, for it was necessary from the beginning and was a necessary and proper expense of completing the project.

If the general contractor should be required to provide the pump without reimbursement, the owner would thereby acquire a valuable asset without paying for it. However, if the undertaking of the general contractor was to complete the entire project for a fixed price, his price undoubtedly included some provision for such unforeseen expenses and losses.

If the plaintiff is to be required to furnish the pump (and pump house) as ruled by the Chancellor, the owner will thereby acquire a valuable addition to its property costing over $30,000.00 without paying anything for it. As a result, plaintiff will be required to sustain a $30,000.00 loss on a $34,000.00 contract.

The equities are with plaintiff who agreed to complete specific construction for a specific price. This has been done, and the price should be paid. The defendant seeks to force the plaintiff to pay for construction which plaintiff did not agree to perform and did not include in its price. To hold with the defendant would unjustly enrich the owner to the extent of the pump construction for which the owner would pay nothing.

In spite of the provisions of § 27-303, T.C.A., this Court is unable to presume the correctness of the Chancellor’s decree as to the cross action of defendant because it is contrary to the applicable law of contracts, there is no evidence to support same, and the evidence preponderates against the portion of the decree which allows any part of the counter-claim.

The foregoing renders unnecessary any discussion of complaints as to the amount of the judgment upon the counter-claim of defendant.

The decree of the Chancellor is modified to delete therefrom the judgment in favor of defendant and to substitute therefor a judgment in favor of plaintiff for $16,-229.48. As modified, the decree is affirmed, and judgment will be entered in this Court in favor of plaintiff and against defendant for $16,229.48 and all costs, including costs of this appeal.

Modified and Affirmed.

SHRIVER, P. J., and DROWOTA, J., concur.