author: McMILLIAN, Judge.

text:
    Myldred W. DEMKO, Plaintiff-Appellant, v. H&H INVESTMENT COMPANY et al., Defendants-Respondents.
    No. 35322.
    Missouri Court of Appeals, St. Louis District, En Banc.
    Aug. 19, 1975.
    Motion for Rehearing or Transfer Denied Oct. 22, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Charles J. McMillin, Laura Andreas, St. Louis, for plaintiff-appellant.
    Amelung, Wulff & Willenbrock, James J. Amelung, Gray, Friedman & Ritter, Charles E. Gray, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John J. Horgan, St. Louis, for defendants-respondents.
   McMILLIAN, Judge.

Appellant, plaintiff in an action for personal injuries suffered in a fall on snow and ice slick pavement, seeks review of a jury verdict and judgment in favor of defendants. We affirm.

Plaintiff’s petition sought damages for injuries she sustained in a fall in a parking area adjacent to a restaurant and motel in Columbia, Missouri. Plaintiff alleged the same acts of negligence against each of the defendants, but her theory of liability for each defendant was separately based on control of the area in which she had fallen. Specifically, she claimed that H&H and the Halls had possession and control of the parking lot area; that Bischof and Connie’s had control of the means of ingress and egress from the restaurant to the parking area; and that Rodeway either had control or shared control of the parking lot with the other defendants.

Evidence was introduced at trial showing that the unimproved real property in question belonged to the Halls, and that the Halls had leased the property to H&H, which constructed the restaurant and motel. H&H operated the motel, but leased the restaurant to Bischof, which, in turn, subleased to Connie’s. Rodeway’s connection with the other defendants is more tenuous. Evidence showed that initially Rode-way had entered into a license agreement with H&H to provide management services to H&H for the motel, but not to guests of the motel. There was also evidence that a Rodeway sign was located at the entrance of the parking lot (the motel was described by another sign as a Best Western Motel) and that city license records showed that Rodeway was authorized to do business in the city at the time of plaintiff’s accident. At that time, however, Rodeway had no relationship of any kind with H&H or the motel.

The accident in question occurred as plaintiff was leaving the restaurant operated by Connie’s and returning to her car. She testified that she slipped and fell on packed snow and ice as she stepped off the curb of a raised sidewalk onto the parking lot. Evidence was introduced tending to show that the restaurant’s rain guttering and downspout system would have flooded the sidewalk in the vicinity of plaintiff’s fall, and that snow had fallen in the Columbia area two days prior to the accident. Plaintiff also testified that she had not seen any snow or ice on the sidewalk or curb area when she entered the restaurant.

Defendants Bischof and Connie’s contend that none of plaintiff’s points of error should be considered because she failed to make a submissible case as to them and, therefore, any instructional errors were inconsequential. Watterson v. Portas, 466 S.W.2d 129 (Mo.App.1971) and Bafaro v. Pezzani, 376 S.W.2d 631 (Mo.App.1964). We agree that there was no submissible issue as to Bischof but disagree as to Connie’s.

This case does not involve an injury on property abutting a public street or sidewalk, nor was there a “special use” or an “affirmative act.”. This is a parking lot case and the liability, if any, is based on a merchant’s duty to invitees to provide a reasonably safe means of ingress and egress, Cannon v. S. S. Kresge, 233 Mo.App. 173, 116 S.W.2d 559 (1938). The duty is a duty to exercise ordinary care to keep its premises reasonably safe and to' warn of any danger which is actually or constructively known to it and which invitees would not discover. Gilpin v. Gerbes Supermarket, Inc., 446 S.W.2d 615 (Mo.1969) citing Restatement, Torts 2d, § 343. “The basis for liability in this type of case is a knowledge of the storekeeper of an unsafe condition or of a danger to a shopper, superior to that of the invitee. . . Gilpin v. Gerbes Supermarket, Inc., supra, at p. 618, quoting Brown v. Kroger Co., 344 S.W.2d 80, 83 (Mo.1961) and Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104 (Mo.1973). Furthermore, such liability cannot be avoided by contracting with others to maintain the entrance and exit areas. Cannon v. S. S. Kresge Company, supra. Therefore, it follows logically that the duty is owed by the “owner or possessor” or “occupant”- of the land. Cunningham v. Bellerive Hotel, Inc., supra; Gilpin v. Gerbes Supermarket, Inc., supra; Potter v. Zorensky, 508 S.W.2d 21 (Mo.App.1974); Willis v. Rivermines I. G. A. Supermarket, 850 S.W.2d 437 (Mo.App.1974); Restatement, Torts 2d, § 343, Annot., 38 ALR 3d 23.

Connie’s was the occupant or possessor of the land. Bischof merely leased the land from H&H Investment Co. and subleased it to Connie’s. The fact that Bischof had contracted with H&H to maintain the leased premises is immaterial to the liability in this suit. Rather, the determinative factor is that Connie’s could have had the superior knowledge which precedes both duty and liability. Bischof could not. Bis-chof had a contractual obligation to H&H but no duty to patrons of Connie’s. Therefore, Bischof was entitled to a directed verdict as a matter of law; there was not a submissible case as to Bischof.

Despite the duty that Connie’s owed to its patrons, the case would not have been submissible as to Connie’s if Connie’s could have shown as a matter of law either that there was no actionable negligence or that plaintiff was guilty of contributory negligence. Here, there was ice on the parking lot, so Connie’s affirmative duty to make safe or warn was properly in issue. Also, there was no evidence on the “obviousness” of the danger sufficient to remove the contributory negligence issue from the case. Reasonableness is a jury question. Dean v. Safeway Stores, 300 S.W.2d 431 (Mo.1957); Abel v. Campbell 66 Express, Inc., 378 S.W.2d 269 (Mo.App.1964); Willis v. Rivermines I. G. A. Supermarket, supra. Since Connie’s did have a duty and was not entitled to a directed verdict as a matter of law, plaintiff did make a submissible case as to Connie’s.

Plaintiff’s major allegations of error concern the instructions given the jury by the trial judge. First, she argues that defendants’ converse instructions were defective because they did not contain “substantially the same language” of her verdict directors. MAI 33.01.

Plaintiff gave separate verdict directing instructions for each defendant and each instruction required a finding that “defendant failed to use ordinary care.” Defendants H&H, Bischof and Connie’s, on the other hand, gave identical converse instructions, each of which required a verdict for that defendant unless the jury found the defendant “negligent.” Plaintiff’s verdict director defined “ordinary care” as that “degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.” Defendants’ converse instruction defined “negligence” as “the failure to use ‘ordinary care’ which means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

MAI 33.01 requires a converse instruction to contain substantially the same language as the verdict directing instruction in order to prevent a jury from returning a verdict based on its interpretation of a term of law which neither appears in the verdict director nor is defined. Brewer v. Swift & Company, 451 S.W.2d 131, 133 (Mo. banc 1970). That danger is not present in this case. Whatever the semantic differences in the instructions given the jury, all instructions in question here included definitions of “ordinary care” and “negligence” which used identical language. Thus we cannot say, as the court said in Brewer, that the jury was given a roving commission to substitute its own notion of the proper interpretation of a term of law.

The question remains, however, whether the failure of defendants to use “substantially the same language” in their converse instructions constituted reversible error. We think not. All terms used in the instructions were defined in identical language. Further, plaintiff’s verdict directors referred directly to defendants’ contributory negligence instructions where the term “negligent” was properly used. In these circumstances it is difficult to conceive how the jury was confused or misled. Juries are, after all, “. . . composed of ordinarily intelligent persons who should be credited with having common sense and an average understanding of our language.” Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325 (Mo. banc 1972). We assume that jurors follow the instructions given them. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59 (Mo.1952). Therefore, while the failure of defendants H&H, Bischof and Connie’s to use substantially the same language in their converse instructions as used in plaintiff’s verdict directors did not comport with previous decisions, we find that the instructions, when read together, that is, plaintiff’s verdict directors and definitions given in defendants’ converse instructions are clear and complete and we cannot find any reversible error.

In her second charge of error concerning the converse instructions, plaintiff argues that the trial court should not have permitted all defendants to give separate converse instructions where plaintiff’s verdict directors were submitted against defendants H&H, Bischof and Connie’s on a single theory of liability. Missouri courts have recognized the basic premise behind plaintiff’s argument, namely, that multiple converse instructions against a single theory of liability constitutes reversible error. In Murphy v. Land, 420 S.W.2d 505, 506-507 (Mo.1967), a suit for personal injuries suffered by a child, the plaintiff submitted two verdict directors: one for damages incurred by the child, the other for medical expenses incurred by the parents. Defendant gave two converse instructions. The court held that a defendant was not entitled to give two converse instructions where the two verdict directors were submitted under the same theory of liability. The court said that multiple converse instructions to a single theory of recovery violated the spirit of MAI 29.01 (now MAI 33.01) “. . . which states that a defendant is entitled to a converse of plaintiff’s verdict directing instruction . . . supra, at 507. Similarly in Nugent v. Hamilton & Sons, Inc., 417 S.W.2d 939 (Mo.1967), the court held that two defendants were entitled to only one converse instruction where the liability of one defendant rested on the liability of the other under the respondeat superior doctrine. See also Watterson v. Portas, 466 S.W.2d 129 (Mo.App.1971) and Scheele v. American Bakeries Co., 427 S.W.2d 361 (Mo.1968).

These cases do not, however, deal directly with the problem presented here, where a single plaintiff seeks to recover against multiple defendants for a single act of negligence but on separate theories of liability. Here, plaintiff submitted for the act of negligence against H&H its failure “to use ordinary care to make the parking lot reasonably safe.” However, as to defendants Bischof and Connie’s, plaintiff submitted the issue of the negligence of these defendants in failing either “to remove” or “to warn” of ice and snow. The “failure to remove” was a failure to make the parking lot reasonably safe, but the act of “failure to warn” was a separate and distinct act of negligence. Thus, as to Bischof and Connie’s there was no “single act of negli.gence,” but, on the contrary, disjunctive acts were submitted. Nothing was contained in plaintiff’s submission against H&H about failure to warn. So, too, plaintiff’s verdict director as to H&H required a finding “the parking lot was in the control of . . .H&H. . . and was used by restaurant customers with the consent of . ..H&H. . . .” On the other hand, plaintiff’s verdict director as to Bischof and Connie’s required a finding “there was snow and ice on the parking lot . . . the means of egress from the restaurant provided by . Bischof and Connie’s respectively in separate submissions.

The Notes on Use to M.A.I. 33.02 and 33.03 specifically provide that when multiple verdict directing instructions submitting different theories of recovery are given, a converse instruction may be given for each verdict directing instruction. The Notes on Use also provide, “When plaintiff submits two separate verdict directing instructions, defendant may converse each such submission with any of the approved converse instruction forms. . . .” (MAI 33.15, pocket part p. 114).

Our research has revealed no judicial decision involving the issue of whether or not each defendant is entitled to give a converse instruction where plaintiff gives a separate verdict directing instruction as to each defendant and there is no relationship existing between the defendants under which a jury would be required to find against all or neither defendant. Inasmuch as Notes on Use apply to converse instructions which specifically permit a defendant to give a converse to each instruction where plaintiff submits two verdict directing instructions, Notes on Use, MAI 33.15, it would certainly seem to authorize each defendant to give a converse where plaintiff submits separate verdict directing instructions. Notes on Use, MAI 33.02 and 33.03 would compel the same conclusion.

The MAI directive that, a “defendant may give only one converse for each verdict directing instruction” cannot be interpreted to mean that all defendants are restricted to one converse even though the plaintiff submits a verdict directing instruction as to each defendant. Especially is this true where there is no derivative liability existing among the defendants as in this case.

In the cases involving one defendant the parties-plaintiff had submitted identically worded instructions on the issue of negligence. Thus in submitting a converse instruction the single defendant’s instruction could have been readily combined into a single instruction and have still followed the example contained in MAI. Murphy v. Land, supra; Watterson v. Portas, 466 S.W.2d 129 (Mo.App.1971) (Where father and son sued for injuries to son, giving two verdict directors on the ground of negligence-lookout, speed, and wrong side of the road, each asking different damages; held to be error for single defendant to give two converses.) and Wyatt v. Southwestern Bell Telephone Co., 514 S.W.2d 366 (Mo.App.1974) (Husband and wife parties-plaintiff).

In those cases involving two defendants there was a relationship existing between the defendants so that a jury could only find against both or neither of them. In such instances the defendant could have given only one converse which would have followed an approved MAI converse. Nugent v. Hamilton & Sons, Inc., 417 S.W.2d 939 (Mo.1967) (Master and servant were defendants); Scheele v. American Bakeries Co., 427 S.W.2d 361 (Mo.1968). In Nugent the Supreme Court first used the “sheer volume of words” test, and justly so, because defendants (Master and servant) gave three separate lengthy converse instructions, which clearly was violative of MAI.

As a practical matter where there are multiple opposing parties defendant, such as the case herein, query — which defendant takes the responsibility for giving the single converse? And, if it is determined to be erroneous, is it reversible error as to a defendant who in the trial court objects to the giving of the instruction offered by the other defendant but yet given by the court? In our opinion justice is not served by a ruling which requires opposing defendants, each of whom are defending their rights to agree upon the wording of one converse, when each of them are required to defend against a verdict directing instruction directed specifically against them on a separate theory of liability. An example of how error can creep in by trying to give one converse where two verdict directing instructions are involved is the case of Burrow v. Moyer, 519 S.W.2d 568 (Mo.App.1975). The situation in the Burrow case was similar to that present in Murphy and the Watterson cases. The court in the Burrow case specifically held, “. . .A single converse is used only in eases where defendant intends to converse the same theory in each of plaintiffs’ verdict directors.”

In the present case plaintiff has asserted a separate and distinct theory against each defendant, and, accordingly, submitted a separate verdict directing instruction as to each defendant. Having chosen to submit in this manner, plaintiff certainly cannot be heard to complain that the jury was confused by the sheer volume of words, especially where the “sheer volume of words” has been created by the plaintiff. Consequently, we rule that where a plaintiff asserts a separate theory of liability against multiple defendants where there is no derivative liability existing among the defendants, and plaintiff submits a separate verdict instruction as to each defendant, then each defendant may submit a separate converse instruction.

The converse instructions submitted by Rodeway and the Halls raised additional elements of proof required against them if plaintiff were to recover. Rodeway’s converse instruction omitted any reference to negligence and asked for a verdict in its favor if the jury found that it neither controlled nor shared control of the parking lot. Similarly, the Hall’s converse instruction omitted the negligence issue and required a verdict in their favor if the jury found that they were not in possession or control of the parking lot.

Since plaintiff undertook proof of these additional elements of proof—possession or control—against Rodeway and the Halls and since these defendants raised these issues in their defense, we find that the separate converse instructions submitted by Rodeway and the Halls were also proper and permissible. Both instructions converse separate theories of recovery and both fall within the “spirit” of MAI No. 38.01 entitling a defendant to “a converse of plaintiff’s verdict directing instruction.” Murphy v. Land, supra, at 507.

Following the reasoning of her objection to multiple converse instructions, plaintiff contends that the trial court erred in allowing four of the defendants to submit separate, but identical, contributory negligence instructions. MAI No. 32.01, relating to contributory negligence, does not specifically condemn multiple instructions as does MAI No. 33.01. However, the use of multiple contributory negligence instructions does seem, as plaintiff argues, to unduly overemphasize the defense by needless repetition.

In any event, none of plaintiff’s authorities cited by plaintiff required defendants to combine their contributory negligence submissions. Since the Missouri Supreme Court has not seen fit to make the same requirement for contributory negligence instructions as it did for converse instructions, it would be patently unfair to convict the trial court of error in this regard. Therefore, we rule this point against plaintiff.

Plaintiff also urges that the contributory negligence instructions were erroneous because they omitted any requirement of a finding that the plaintiff had actual or constructive knowledge or appreciation of the danger citing Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217 (Mo.1971); Bledsoe v. Northside Supply & Development Co., 429 S.W.2d 727 (Mo.1968) and Davidson v. International Shoe Co., 427 S.W.2d 421 (Mo.1968). Because it is established law that before a party can be found contributorily negligent, there must be a finding that he acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury resulting from his conduct, Koirtyohann v. Washington Plumbing & Heating Co., supra. To omit a requirement for such a finding from a contributory negligence instruction is error, Bledsoe v. Northside Supply & Development Co., supra and Davidson v. International Shoe Co., supra.

We agree that each of these cases does stand for the proposition of law now being urged by plaintiff. But the instant case is readily distinguishable from the Koirtyohann, Bledsoe and Davidson cases.

In the Koirtyohann case the decedent dug a trench about 300 feet in length, but because of a culvert and a creek he had to stop. To dig the trench deeper, another operator was called in who deepened the trench and piled the excavated dirt on the side of the trench. When the operator could go no farther, the deceased returned to the trench to carry on the digging necessary to be done by a hand shovel. In the meantime, while the operator was digging on the other side of the culvert, the south wall, where the excavated dirt was being placed, caved in. The court pointed out that where mere knowledge of a general condition does not necessarily impart knowledge and appreciation of the danger, then the instruction should require a finding of knowledge and appreciation either actively or constructively.

The Bledsoe case reached a similar conclusion because the instruction in question failed to require a finding that plaintiff had actual or constructive knowledge that the plane was overloaded, where plaintiff neither loaded the plane nor determined its load.

The holding in the Davidson case is based upon the same principle involved in the Koirtyohann and the Bledsoe cases. Davidson involved a situation where plaintiff stepped on a portable step which tilted causing him to fall. There was no evidence that the mere observation of the step would impart knowledge and appreciation of the danger.

Plaintiff’s present assertion of error is directly answered by this court’s opinion in Fehlbaum v. Newhouse Broadcasting Corp., 483 S.W.2d 664, 666: “Plaintiff also contends that the instruction was a variation from M.A.I. because it fails to require a finding of knowledge of the danger on the part of the plaintiff. This contention is answered by Helfrick v. Taylor, Mo., 440 S.W.2d 940[4], where exactly the same instruction was approved in a case quite similar to this one. Plaintiff’s reliance on Davidson v. International Shoe Co., Mo., 427 S.W.2d 421, is misplaced. There, the plaintiff stepped onto a step which tilted causing the fall. There was no evidence that had plaintiff looked he would have been aware of the danger of the step tilting. That is not the case here, for had plaintiff looked she could hardly have failed to appreciate the danger.” So, we rule this point against plaintiff and hold the giving of a failure to keep a careful lookout instruction was proper under the evidence of the case.

While plaintiff’s contention that the court erred in excluding evidence of a municipal ordinance of the city of Columbia has merit, we do not find the error to be so prejudicial as to warrant a reversal. Plaintiff’s theory was that the patch of ice upon which she fell was caused by the uncontrolled discharge of water from the swale or water pan over the parking area. While it is true that the ordinance in question concerned itself with public streets and sidewalks and that the duty imposed thereunder was one owed to the City by the owner or occupier; yet, it was proper for plaintiff, if she could, to establish the custom, usage and the standard of care required in the construction of downspouts in the city of Columbia, Schulte v. Graff, 481 S.W.2d 596, 600 (Mo.App.1972). Here plaintiff pleaded and offered to prove by an expert witness what the custom and the use was on the construction of downspouts in the Columbia area. To reject such an offer was error under the circumstances shown herein, but, in our opinion, such error did not materially affect the merits of the action. Rule 84.13(b), V.A.M.R.

We have examined carefully all other claims of plaintiff pertaining to the introduction of evidence and read her citation in support thereof. In our opinion, none of the claimed errors, if error, would either materially affect the merits or would have any precedential value.

Judgment affirmed.

SMITH, C. J., and GUNN, SIMEONE, CLEMENS, WEIER and RENDLEN, JJ., concur.

      .See generally 63 C.J.S. Municipal Corporations § 861 (1950); Annotated 88 ALR 2d-331.

      .See generally State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673 (1941); O’Connell v. Roper Elec. Co., Inc., 498 S.W.2d 847 (Mo.App.1973); Martin v. Gilmore, 358 S.W.2d 462 (Mo.App.1962); Annotated 88 ALR 2d 331, 380-99.

      .See generally Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35 (1948); Levine v. Jale Corp., 413 S.W.2d 564 (Mo.App.1967); Hart v. City of Butler, 393 S.W.2d 568 (Mo. 1965); Annot., 88 ALR 2d 331, 361-64.

      . “Instructions No. 10 and No. 13 properly required that before the jury could find that plaintiff was guilty of contributory negligence, they must find:
      “First: Plaintiff failed to keep a careful lookout, and
      “Second: Plaintiffs conduct in the respect submitted in Paragraph First was negligent, and
      “Third: Such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”


source: Caselaw Access Project

author: SOMERVILLE, Presiding Judge.

license: Public Domain

text:
    STATE ex rel. OZARK ELECTRIC COOPERATIVE, Appellant, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent, The Empire District Electric Company, Intervenor.
    No. KCD 27581.
    Missouri Court of Appeals, Kansas City District.
    Oct. 6, 1975.
    Application to Transfer Denied Dec. 8, 1975.

      Almon H. Maus, Monett, Gregory C. Stockard, Jefferson City, for appellant.
    Leland B. Curtis, Com’n Counsel, Michael K. McCabe, First Asst. Com’n Counsel, Jefferson City, for respondent, Missouri Public Service Com’n.
    Robert L. Hawkins, Jr., James C. Swear-engen, Graham & Hawkins, Jefferson City, for intervenor.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

Ozark Electric Cooperative (Ozark), with marked tenacity, has run the gamut of procedural remedies to date in an effort to nullify an order of the Public Service Commission (Commission) granting a certificate of convenience and necessity to Empire District Electric Company (Empire) to render electric service to an unincorporated area in Greene County, Missouri. After invoking judicial review of the Commission’s order before the Circuit Court of Cole County, and failing there to upset it, Ozark now resorts to this court in its nullification effort.

The entire matter is permeated with a familiar ring for those acquainted with the ever increasing territorial competitiveness in unincorporated “rural” areas between unregulated electric' utilities such as Ozark and regulated utilities such as Empire. The increased competitiveness just mentioned, brought about by high density population points in traditionally unincorporated “rural” areas, may have rendered the statutory distinction between regulated and unregulated purveyors of electric energy therein a superannuated concept. However, if so, it is a matter to be legislatively addressed.

Ozark’s thesis on appeal is bifurcated — (1) a dearth of competent and substantial evidence on the whole record to show a public need for the electric service to be rendered by Empire in the certified area and (2) a duplication of electric facilities contrary to law and the public interest if the Commission’s order is permitted to stand.

A unanimity of opinion exists between Ozark, appellant herein, and Empire and the Commission, respondents herein, as to the scope of appellate review of the Commission’s order. As forged by the constitution of this state, codified by statute, and judicially construed on numerous occasions, the scope of judicial review of the Commission’s order is sharply drawn in that it is relegated to a determination of whether it was lawful and reasonable. Mo.Const. Art. V, Sec. 22; Section 386.510, RSMo Supp.1973; State ex rel. Hotel Continental v. Burton, 334 S.W.2d 75, 78 (Mo.1960); Maag v. Public Service Commission, 384 S.W.2d 801, 806 (Mo.App.1964); and State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973). The question of the order’s “lawfulness” turns on whether the Commission had statutory authority to issue it. Maag v. Public Service Commission, supra, and State ex rel. Beaufort Transfer Co. v. Clark, supra. The question of the order’s “reasonableness” turns on whether it is supported by the competent and substantial evidence on the whole record. State ex rel. Kansas City Transit, Inc. v. Public Service Commission, 406 S.W.2d 5, 11 (Mo. banc 1966); Maag v. Public Service Commission, supra; and State ex rel. Beaufort Transfer Co. v. Clark, supra. Section 393.170, RSMo 1969, empowered the Commission with authority to issue the controversial certificate of authority if, “after due hearing”, it determined that such was “necessary or convenient for the public service”. See also State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40, 44-45 (Banc 1944). Determination of the lawfulness of the Commission’s order in granting the certificate of authority requires a concomitant determination of whether it was reasonable. If there is competent and substantial evidence on the whole record that the certificate of convenience and necessity awarded to Empire was “necessary and convenient for the public service”, then the Commission’s order in granting the certificate was both reasonable and lawful. If the opposite be true, then the order of the Commission granting the certificate of authority was both unreasonable and unlawful.

The “whole record” lends itself to being fairly summarized as follows:

Geographically, the certified area comprises a tract of ground approximately two and one-half miles by two and one-half miles lying west of the city limits of Springfield, Missouri, and closely adjacent to the south city limits of Willard, Missouri.

The certified area lies within an eight mile wide corridor that rings the city limits of Springfield. For a number of years electric service in the eight mile wide corridor was predominantly furnished by Ozark and the city utilities plant of Springfield. Prior to 1958 electric energy furnished by the city utilities plant of Springfield to users in the corridor area was purchased at wholesale from Empire pursuant to a contract. During the life of said contract, and in compliance with the terms thereof, Empire desisted from seeking authority for serving users in the corridor area. However, on the expiration of said contract, and more particularly since 1958, empire at various times sought and obtained authorization to serve a rather limited number of users in the corridor area, and, additionally, since 1927 has continuously served the electric energy needs of the city of Willard. The city of Willard lies in close proximity to the outer perimeter of the eight mile wide corridor heretofore mentioned.

Empire’s application for the litigated certificate of convenience and necessity was prompted by a request for electric service from Thomas B. Smith, who in conjunction with his wife owned the Park Crest Water Co. Park Crest Water Co. was in the process of developing a 360 acre tract in the south part of the certified area. The development, known as Villa Park Heights, was to contain 640 single family dwellings, 200 apartment units, an “all electric shopping center”, an “electric water pump”, and an elevated water storage facility. As of the date of the hearing conducted by the Commission, Park Crest Water Co. had expended over one-half million dollars in the development of Villa Park Heights. Smith was adamant that electric service to Villa Park Heights be implemented by an underground distribution system and he wanted electric service for Villa Park Heights to be provided by a supplier who had experience with underground facilities. Empire had the requisite experience. Ozark’s experience was somewhat limited and by the admission of one of its officers it had never installed an underground distribution system in a “complete subdivision”. Smith had previously encountered difficulty with unregulated suppliers of electric energy and, accordingly, desired Empire to serve the needs of Villa Park Heights so that the consumers therein would have recourse to the Commission if service was not what it should be. Empire is subject to the regulatory power of the Commission regarding service to consumers (Section 393.140, RSMo 1969) while Ozark is not (Section 394.160, RSMo 1969).

Empire is both a producer and retail distributor of electric energy. Ozark possesses no production facilities and is merely a retail distributor of electric energy purchased from other sources. Ozark had no assurance that it possessed an impervious source of power for servicing the certified area.

Empire proposed to service the certified area by tapping one of its existing 69 KV lines which currently ran within one mile of Willard, constructing a “step-down” substation on a site in Willard, and then bringing 12 KV 3-phase service underground from the substation for a distance of two miles into Villa Park Heights and thence to other facilities in the certified area. Empire’s proposed method of servicing the certified area was financially feasible and would not place a financial burden on any of its existing customers.

Ozark proposed to serve the electric energy needs of Villa Park Heights by tapping a 69 KV distribution line owned by KAMO Electric Cooperative, constructing a substation approximately two and one-half miles west of Villa Park Heights, and then bringing' 3-phase underground service to Villa Park Heights from said substation.

Although Ozark is presently serving approximately ninety customers in the certified area, all of whom are north of and beyond the perimeter of Villa Park Heights, Ozark’s existing facilities in the general area are only sufficient to meet its present customer load, plus approximately fifty to one hundred additional homes whether they be in Villa Park Heights, the remainder of the certified area, or the general area surrounding the certified area, and, accordingly, Ozark’s present facilities are insufficient to serve in toto a development as large as Villa Park Heights. Moreover, Ozark intended to proceed with construction of its proposed substation in order to meet its anticipated load requirements in the general area regardless of whether or not Empire was granted the certificate of convenience and necessity herein questioned.

For some reason, either intentional or otherwise, the General Assembly has not seen fit to statutorily spell out any specific criteria to aid in the determination of what is “necessary or convenient for the public service” within the meaning of such language as employed in Section 393.170, supra. Some aid is afforded, however, by the broad, pervasive legislative intent discernible from Chapter 393, RSMo 1969, so far as it is relative to regulation of electric utility companies. More particularly, Section 393.-130, RSMo 1969, contains language that gives some indicia that the General Assembly, among other things, concluded that the public interest would be served by requiring regulated electric utilities to render electric service by means of “adequate” facilities. This exemplary goal can not be vacuumized when determining whether or not there was competent and substantial evidence that the territorial authority sought by and granted to Empire was “necessary and convenient for the public service”, and it gives a sense of direction as to what serves public necessity or convenience when judicially testing the reasonableness and lawfulness of the Commission’s order. Consequently, it is not judicially remiss to conclude that “adequate” facilities, although not an exclusive criterion, is in and of itself a proper criterion for determining whether a grant of territorial authority is “necessary or convenient for the public service”. The relative experience of competing suppliers of electric energy regarding the type of facilities to implement the service to be afforded certainly bears a direct relationship to the criterion of “adequate” facilities. Likewise, “adequate” facilities is akin to the greater ability of one utility as opposed to another to provide a more reliable source of electric energy to consumers.

Empire’s experience relative to underground distribution systems vis-a-vis the limited scope of Ozark’s experience, in conjunction with Empire’s possession of facilities for both the production and distribution of electric energy vis-a-vis Ozark’s possession of facilities solely for retail distribution of power purchased from others, impels this court to conclude that there was competent and substantial evidence on the whole record before the Commission to support its order awarding the requested certificate of convenience and necessity to Empire, and, perforce, the order of the Commission doing so was both lawful and reasonable.

This court is not unmindful that the tack of the first prong of Ozark’s bifurcated thesis on appeal is, in a sense, both negative and affirmative. It is negative in the sense that Ozark claims that no competent and substantial evidence exists to support the Commission’s order, and affirmative in the sense that Ozark claims that the expressed preference of Smith (one of the principal owners of Park Crest Water Co., developer of Villa Park Heights) and the fact that Ozark was a cooperative as opposed to a fully regulated utility such as Empire would not establish a public need for the service for which Empire sought certification. In view of what has been said, it is unnecessary to discuss the affirmative aspect of the first prong of Ozark’s bifurcated thesis in order to affirm the Commission’s order.

Respecting the second prong of Ozark’s bifurcated thesis, i. e., that certification of Empire would result in a duplication of electric facilities contrary to law and public interest, the same is unavailing if for no other reason than the fact that there was competent and substantial evidence, and this court construes the order of the Commission as so finding, that implementation of the certificate of convenience and necessity awarded to Empire would not have the effect of duplicating or overlapping Ozark’s present facilities in view of Ozark’s anticipated increased customer load in the general area surrounding the certificated area.

This court makes no claim to apocalyptic vision. It must take the measure of issues in a given case by existing principles when available, whether statutorily prescribed or case law oriented, and by logic and reason when unavailable and not otherwise statutorily proscribed. On this latter basis it concludes that the order handed down by the Commission was lawful and reasonable and therefore undented by the forays launched against it by Ozark.

Judgment affirmed.

All concur.


author: L. F. COTTEY, Special Judge. PER CURIAM.

text:
    In the Matter of Velma B. BROWN, alleged incompetent, Appellant.
    No. 9964.
    Missouri Court of Appeals, Springfield District.
    July 28, 1975.
    Motions for Rehearing or to Transfer Denied Sept. 5, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Arch M. Skelton, Edmund C. Forehand, Skelton & Forehand, Springfield, Laurence H. Flanigan, McReynolds, Flanigan & Flan-igan, Carthage, for appellant.
    John W. Scott, Grant W. Scott, Spencer, Scott & Dwyer, Joplin, Harold J. Fisher, David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for respondent.
    Before STONE, P. J., HOGAN, J., and FRANK L. COTTEY, Special Judge.
   L. F. COTTEY, Special Judge.

Respondent herein, by a petition filed in the Probate Court of Jasper County under the provisions of Chapter 475, RSMo 1969, V.A.M.S., charged that appellant, Velma B. Brown, 71, a childless widow of substantial wealth, was “incapable, by reason of mental illness or other incapacity, of managing her property and caring for herself.” The prayer was for appointment of a guardian of her person and estate. The cause was certified to the circuit court where, on trial to a jury, a verdict in favor of the alleged incompetent was returned. A new trial was ordered, however, on the recited ground that “Instruction Number 3 ... is [an] improper statement of the law and that it constituted reversible error.” From that order Mrs. Brown appealed to the Supreme Court on the theory that a constitutional question was involved. The Supreme Court ruled that point adversely to her and transferred the cause to us for disposition of the remaining issues. In re Brown, 518 S.W.2d 289 (Mo.1975). With the constitutional question out of the case, three points urged by appellant remain to be discussed, in this order:

1st: That respondent’s evidence in support of the charge of Mrs. Brown’s incompetency was so utterly inadequate as to amount to a failure of proof, thus entitling her to a directed verdict in her favor as a matter of law; hence, submission of that issue to the jury, no matter how improper the instructions may have been, was, in effect, a legal nullity on which no error can be predicated by respondent.

We preface our discussion of this point by reminding counsel that in law, in busy courts, a proposition put forward less on faith than in hope is seldom entertained with charity. By application of that maxim we content ourselves with a one sentence summary of the nearly 1,500 pages of transcript accumulated in the six-day trial of this case. Respondent produced a score of witnesses to testify to Mrs. Brown’s incomprehensibly eccentric and sometimes violently irrational behavior, among them two accredited psychiatrists who gave it as their opinion from their examination of her that she was “a person of unsound mind . mentally ill;” that she had “a very disordered mind ... a persecution complex ... a paranoid psychosis . a mental illness of a severe nature” with “hypertension” adding to “her confusion” and aggravating “the tendency toward a paranoid condition;” that she might become “very dangerous” and was “in need of psychiatric treatment;” that she “needs to be under supervision;” that because of “her terribly disturbed mind” she “is incompetent to take care of herself” or “properly take care of her financial affairs,” because she is unable to “make the proper judgment on such matters;” and, finally, that “she is incompetent because of mental illness.” If our rejection of appellant’s argument on this point has unintended overtones of brusqueness, our apology is the welcome brevity of the analysis that prompts it.

2nd: That because respondent put Mrs. Brown on the stand as a part of his own case (as a sort of Exhibit A, one must suppose, since the result of the experiment leaves any other purpose to even more remote conjecture), he “vouched for and admitted that she was in fact competent and not of unsound mind” (having regard for § 491.060, RSMo 1969, V.A.M.S., which disqualifies persons of “unsound mind” as witnesses); hence, that respondent was precluded thereafter from offering proof of her ineompetency because, so the argument runs, to permit him to do so would be tantamount to allowing him to impeach his own witness by direct evidence.

We find no precedent for that proposition. The argument obviously proceeds upon the assumption that there is a close analogy between a party’s vouching for the credibility of his adversary whom he calls as a witness in his own case and vouching for his adversary’s mental competency when he puts him on the stand in a case like this; but even if there were, counsel overstate the effect of the rule in the premised example of its application. One who calls his adversary as a witness in his own case does no more than concede that his adversary’s testimony is worthy of belief if the jury, in the exercise of its exclusive prerogative in such matters, sees fit to believe it. He does not guarantee the truth of what his adversary says, nor does he forfeit his right to have the jury pass on that question, nor is he “precluded from proving the contrary by other witnesses.” Manchester Bank of St. Louis v. Harrington, 199 S.W. 242, 248 (Mo.1917). “Neither is there anything to prevent the plaintiff, after so examining the defendant, from producing whatever evidence he can to show that ‘what he says is not strictly in accord with the truth’ and leave it to the court or jury ‘to place a proper estimate on it.’ ” Lolordo v. Lacy, 337 Mo. 1097, 1101, 88 S.W.2d 353, 355 (1935); Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 49, 159 S.W.2d 589, 594 (banc 1942); Maginnis v. Mo. Pac. Ry. Co., 268 Mo. 667, 675, 187 S.W. 1165, 1167 (1916); Black v. Epstein, 221 Mo. 286, 304, 120 S.W. 754, 760 (1909); Imhoff v. McArthur, 146 Mo. 371, 377, 48 S.W. 456, 457 (1898). One is never “bound” by the testimony of his adversary whom he calls as a witness save where that testimony is the only evidence on a point vital to the calling party’s case, and even then the term is misleading, for in every such instance it will be found that the calling party, disappointed by the testimony of his adversary on the point and having no other evidence by which to establish it, has simply, suffered “a failure of proof of an essential fact.” Draper v. Louisville & N.R. Co., 348 Mo. 886, 899, 156 S.W.2d 626, 634 (1941). It is not his adversary’s testimony by which he is “bound”; it is his own lack of contrary proof.

Implicit in the premise from which appellant’s argument proceeds is the assumption that a party, by calling his adversary as a witness, makes a judicial admission of his veracity which precludes the calling party from disputing anything he says. As shown above, the rule is otherwise. With an appropriate adjustment of the premise, then it is only a short step to the conclusion that respondent, by putting Mrs. Brown on the stand, did not unconditionally and ineluctably “admit that she was in fact competent and not of unsound mind” and was no more precluded from proving the contrary by other witnesses than is a party from proving the untruth of what his adversary says in similar circumstances. And so, despite the novel and ingenious reasoning that has gone into the proposition, the distinction of being the first court in the world to adopt it must, for us, be an opportunity lost.

3rd: That “Instruction No. 3 was a proper statement of the law,” nowise prejudicial to respondent.

That brings us to the serious point in the case. We quote the instruction, and, to focus attention on the criticized part of it, we set out that part in italics:

“Your verdict must be that Velma B. Brown is an incompetent person if you believe that at the time of these proceedings:

First, Velma B. Brown has such a mental illness which renders her incapable of understanding and acting with discretion in the ordinary affairs of life, and

Second, by reason of such mental illness there is a total deprivation of her understanding, and

Third, that her powers of reasoning and comprehension have been so far destroyed or reduced by such mental illness that she is incapable of knowing and appreciating the nature and consequences of her acts in respect to her own conduct and the management of her property.”

For an orderly approach to the criticism leveled against the italicized portion of the instruction, it is necessary to refer back to the statute on this subject as it existed prior to 1955, § 458.010, RSMo 1949, since the cases relied on by appellant in defense of the instruction were all decided while that statute was in force. It read:

“For the purposes of this article, wherever the words ‘person of unsound mind’ or ‘insane person’ occur therein, said words shall be construed to mean either an idiot, or a lunatic, or a person of unsound mind and incapable of managing his own affairs, as the case may be, upon proof as aforesaid.”

It will be seen that statute equated persons of unsound mind with insane persons by applying the same alternative definitions to each; hence, conversely for illustration, for a person to be adjudged “of unsound mind and incapable of managing his own affairs,” the degree of his derangement must be shown to be such as would cause him to be classified as an insane person. In the first case on the subject, Harrelson v. Flournoy, 229 Mo.App. 582, 589-90, 78 S.W.2d 895, 899 (1934), the court took that view, saying that “unless they [weak minds] betray a total lack of understanding or idiocy or delusion, they cannot properly be considered unsound.” (Emphasis ours). That case, at the same local citation, explains the philosophy of the law in the light of the statute that suggested it by saying, “To establish any standard of intellect or information, beyond the possession of reason in its lowest degree, as in itself essential for legal capacity, would create endless uncertainty, difficulty, and litigation, would shake the security of property, and wrest from the aged and infirm that authority over their earnings and savings which is often their best security against injury and neglect.” (Emphasis ours). The next ease, In re Bearden, 86 S.W.2d 585, 594 (Mo.App. 1935), parroted that language and gave additional emphasis to the phrase, “total lack of understanding”. And the third case, In re Delany, 226 S.W.2d 366, 373 (Mo.App.1950), affirmed the view of the other two that a total deprivation of understanding was a prerequisite to an adjudication of unsoundness of mind. Under the old statute, then, in the light of decisions construing it, appellant would undoubtedly be on sound ground in insisting that the inclusion of that concept in the given instruction was proper.

But the old statute was repealed in 1955 and a new one enacted, § 475.010, RSMo 1969, V.A.M.S., which reads:

“When used in sections 475.010 to 475.370, unless otherwise apparent from the context: * * * (3) An ‘incompetent’ is any person who is incapable by reason of insanity, mental illness, imbecility, idiocy, senility, habitual drunkenness, excessive use of drugs, or other incapacity, of either managing his property or caring for himself or both.”

Did the new statute change the law? We say it did, for these reasons:

Of arresting significance is the fact that nowhere does the new statute use the term “insane person,” or “person of unsound mind” as a synonym for it. Since those terms, as interpreted by the courts in the cases cited above, were of controlling importance in fixing the law’s standard of mental incapacity under the old statute, there must have been some reason for their omission from the new one. And we think Judge Ruark put his finger on it when he said that we live in a time of “changing concepts in respect to mental illness” and “[o]ur legislature has recognized this by the use of the word ‘incompetent’ in the statute, and by the definition of an incompetent as encompassing various mental disabilities, including that of ‘insanity.’ ” State v. England, 328 S.W.2d 732, 736 (Mo.App.1959) (Emphasis his).

We have only to consult the legislative history of the Act (which we are authorized to do, St. Louis Southwestern Ry. Co. v. Loeb, 318 S.W.2d 246, 252 (Mo. banc 1958)) to confirm that view. In the committee comment, appended beneath the text of the statute in 26A V.A.M.S. at 6, we read:

“The definition of ‘incompetent’ as here given is designed to make possible the use of that term instead of ‘insane person’ and to cover all persons of unsound mind, whether insane or not.” (Emphasis ours).

Clearly it was the purpose of the legisla-. ture, in enacting the new statute, to fix a more flexible standard of mental incapacity and to relegate to past history any concept of incompetency which is circumscribed by the requirements of the earlier cases, and particularly that most stringent one, that to be adjudged mentally incompetent one must be shown to have suffered “a total deprivation of understanding.” The trial judge was right in concluding that inclusion of that standard in Instruction No. 3 was prejudicial error to respondent and in granting a new trial for that reason.

The order is affirmed and the cause remanded.

All concur.

FLANIGAN, J., took no part in the consideration or determination of this cause.

On Motions for Rehearing or to Transfer

PER CURIAM.

On motions for rehearing or to transfer, counsel for appellant have favored us with an erudite treatise in support of a proposition put forward by these steps: (1) that at common law the term “unsound mind” imported “not weakness of understanding, but a total deprivation of sense” [per Lord Hardwicke in Ex parte Bransley, 3 Atk.R. 168, 173, 26 Eng.Rep. 899, 901 (1744)]; (2) that the common law in this respect was not abrogated by § 475.010, supra, but was carried forward by it and is implicit in it; (3) hence, that we are in error in holding that the cited statute contemplates “a more flexible standard of mental incapacity” or anywise relaxes the requirement embodied in the italicized portion of the criticized instruction.

At the outset, we may observe parenthetically that there, is some question as to whether Lord Hardwicke’s definition of unsoundness of mind in 1744 can be said to have been within the contemplation of § 1.010, RSMo 1969, V.A.M.S., and its earlier enactments which incorporated into the jurisprudence of this state the common law as it stood 137 years earlier, to wit, in 1607, which was “the fourth year of the reign of James the First”; and if Lord Hardwicke’s definition was not so incorporated into our jurisprudence, then of course there is an obvious and fatal flaw in the premise from which appellant’s proposition proceeds. But that question we leave to scholars and historians with the time and bent to pursue it.

Assuming that at common law the criticized requirement of the instruction would have been approved, we advance to the second part of appellant’s proposition, viz., that inasmuch as § 475.010, supra, did not purport in terms to abrogate the common law in this respect, we ought not hold that it did so by implication. Cited in support is this statement from State v. Kollenborn, 304 S.W.2d 855, 862(10) (Mo. banc 1957), “The law does not favor repeals of the common law by implication in a statute, and a legislative intent to do so is generally not presumed”; and numerous references to State v. Dalton, 134 Mo.App. 517, 114 S.W. 1132, 1135 (1908), where Judge Norto-ni set out the “three ways in which the common law on a given subject may be repealed.” Not quoted to us, however, is the second of those ways, viz., “by such repugnance in the two laws [i. e., between the common law and the current statute] as evinces that they may not both operate as a rule of decision at the same time.”

In the light of that rule, our answer to this part of appellant’s proposition must simply be this: If there is anyone who can read § 475.010, supra, and rationally interpret it as requiring that the alleged “incompetent,” to be adjudged such, must have suffered “a total deprivation of her understanding,” as the instruction puts it — if there is anyone who can avoid the conclusion that the tenor of the statute is so repugnant to Lord Hardwicke’s definition “that they may not both operate as a rule of decision at the same time” — we confess that we are not attuned to the nice nuances of such reasoning.

Attached to appellant’s memorandum as exhibits are monographs and committee reports submitted to the American Bar Association and the Sixty-eighth General Assembly in support of the adoption of a proposed Model Probate Code. We have examined those documents in tedious detail, “and still the wonder grows” as to why the patience of the court should be taxed with the task. Nowhere in them is there any statement to indicate, even by remotest implication, that the provisions of the Code relating to “incompetents” were intended to apply only to persons who had suffered “a total deprivation of understanding.” Nowhere was such a notion suggested, nowhere entertained, nowise countenanced— possibly because the proponents of the Act realized that it would be repugnant to the sense and interests of society in the light of our “changing concepts in respect to mental illness.” State v. England, supra, 328 S.W.2d at 736.

Finally, counsel for appellant say, “The court’s holding . . . has thrown all the probate, circuit and appellate courts, the parties to this appeal and the trial judge to whom the case has been remanded for trial, and all other future litigants and attorneys involved in incompetency proceedings into total CHAOS.” And in line with that pronouncement they add, “[w]e demand . . . that this court declare what standards should be followed for the determination of an incompetent person.” The rhetoric, we think, is a bit overblown; counsel are unduly apprehensive. There is no need to conduct law school on this subject: “Sufficient unto the day is the evil thereof.” ' Matthew 6:34.

Secure in conscience and reason on these several points, we overrule appellant’s motions.

All concur.

      . Respondent is identified as David Bruce Adamson, Chairman of the Board and President of the First National Bank of Joplin, Missouri.

      . For a review of the authorities from other jurisdictions approving the practice complained of here and giving the reasons therefore, see Annot., 22 A.L.R.2d 756 (1952).

      . Were the rule otherwise, the calling party would put himself at the mercy of his opponent, at ransom to the dirk of falsehood, a result no statute or rule of law was ever designed to invite.

      . Disregard the inelegant syntax; it is not “such as which” will affect our decision.

      . A bit of background is appropriate in fairness to the trial judge. There is no M.A.I. pattern for an instruction on this subject (an omission that every trial judge is familiar with in cases involving issues of more complexity, say, than automobile accidents). Confronted with that frustration, counsel for respondent made up one which closely parallels Instruction No. 3 except it omits all reference to the proposition submitted in the italicized portion of that instruction. Counsel for appellant were understandably insistent on a more restrictive standard of mental incompetency for the jury’s guidance and, by dint of the cases discussed later in the body of this opinion and in the absence of other authority, persuaded the court, in the heat and haste of the emergency, to add the italicized part and give the instruction, as so amended, as the court’s own instruction. These things happen in these circumstances with distressing frequency, and it would be ungracious of us not to acknowledge our sympathy with the trial judge in the exigency that confronted him.

      . Lawyers of mature experience will realize that a certain amount of flatulent rhetoric has gone into that pronouncement, and a good deal of empirical knowledge has been neglected by it.

      . If “a total lack of understanding” is not the hallmark of slavering idiocy, it is, by popular comprehension, the next thing to it. Even an unweaned infant has some degree of understanding! What court can be expected to say, in the light of the new statute, that “an ‘incompetent’ is any person who is incapable * * * of either managing his property or caring for himself’ only when his mental capacity is shown to be less than that of a diapered child?


author: DOWD, Judge.

text:
    In the Matter of Judith Eleanor NATALE, a/k/a Judith Natale Montage, Petitioner, Appellant.
    No. 35880.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 29, 1975.
    Judith Eleanor Natale a/k/a, Judith Na-tale Montage pro se.
    Ellen Fulghum Watkins, Nat. Org. for Women, St. Louis Chapter, St. Louis, for appellant.
   DOWD, Judge.

Petitioner appeals from the denial of her Petition for Change of Name requesting a court order changing her name from Judith Eleanor Natale, the name she had used following her marriage to Daniel Natale, to Judith Natale Montage. The petition alleged: that petitioner was twenty-nine years old and a resident of St. Louis County; that petitioner desired to change her name for purposes of professional and personal identity and convenience to her husband and herself in carrying out their professional careers; that petitioner had never been convicted of any felony, misdemeanor, or offense involving moral turpitude; and, that petitioner’s requested name change would not defraud any of her creditors, was proper and not detrimental to the interests of any other person. An affidavit was filed with the petition in which petitioner’s husband stated that he concurred with petitioner’s request for a change of name.

The evidence at the hearing on the petition consisted solely of petitioner’s testimony confirming the allegations of the petition. Petitioner’s husband was an Administrator in the Parkway School District who did not list his home phone number in order to avoid calls from parents and children during his free time. Petitioner was a law student at St. Louis University, expecting to graduate in May, 1974. She desired to list her home phone number as an attorney. Prior to her marriage, the petitioner had not used the name Montage but had been known by three surnames due to her mother’s remarriage and petitioner’s adoption. While petitioner and her spouse had certain joint obligations such as charge accounts and leased their home and paid for utilities in the husband’s name, no evidence was admitted which indicated that any of the couple’s creditors would be defrauded by granting the name change petition.

On August 21,1973, the court entered its order and judgment denying the Petition for Change of Name on the ground that “Petitioner is lawfully married and resides with her legal spouse” and “that under such circumstances the granting of said petition could be detrimental to others in the future.” The court’s order did not specify who the “others” were, but at the hearing, the court had commented, “Where a married couple who do have and in the future are likely to have many obligations for which they are liable, I can see circumstances that would be detrimental . . . ” It appears, therefore, that the trial court found that the fact of a woman’s ongoing marriage is prima facie evidence of detriment to creditors sufficient to deny her petition for change of name.

The thrust of petitioner’s first argument is that she has the right at common law to change her name, regardless of her marital status. Section 1.010 (RSMo 1969, Y.A. M.S.) adopts, as the common law of Missouri, the laws of England in existence prior to the fourth year of the reign of James the First which are of a general nature and which have not been invalidated, expressly or impliedly, by the United States Constitution, Missouri Constitution or Missouri Statute. A survey of the common law of England is, therefore, useful.

Surnames arose as descriptive terms applied to individuals to differentiate between parties with the same baptismal name, eventually becoming a required part of a person’s legal name. Even so, names could be adopted and abandoned at will, and all members of a family, including the husband and wife, were not necessarily known by the same surname. Gradually, the custom that all members of the family bear the same, fixed surname developed as surnames lost their character as descriptions of particular individuals. Since the husband and wife customarily adopted the name of the spouse with the most property and since men typically held more property than women, most women took the husband’s name. However, the custom never became law. The English common law view was that a woman’s surname was not bound to her marital status and arose only through her use of a name.

The law of England adopted by Section 1.010, supra, recognized the right to change name by the nonfraudulent use of another. The right was never limited to males; indeed, it was through this common law method that a woman changed her surname to that of her husband after marriage. Cowley v. Cowley, (1901) A.C. 450, 460; 19 Halsbury, Laws of England (3d ed.), p. 829; 32 Md.L.Rev. 409 (1972); Lamber, A Married Woman’s Surname: Is Custom Law?, 1973 Wash.U.L.Q. .779. As Section 1.010, supra, does not purport to prohibit married females from exercising their common law rights, married women in Missouri are free to adopt another name by the common law method if this right has not been invalidated by constitutional or statutory mandate.

This court is unaware of any constitutional or statutory provision which abrogates the English common law right to change names through usage, Section 417.-200 (RSMo 1969, V.A.M.S.) notwithstanding. This statute provides that the transaction of business under a fictitious name not previously registered with the secretary of state is a misdemeanor. The construction given the statute comports with the common law right to change names. Contracts entered under a fictitious name are valid in themselves, but the act of contracting without registration constitutes a misdemeanor. State v. Euge, 400 S.W.2d 119 (Mo.1966). No holding in Missouri directly confirms the common law right to change names through usage, but the courts have indicated that a person’s name is the designation given to the individual by himself or herself and others and that an individual may change his or her name. State ex rel. Kansas City Public Service Co. v. Cowan, 356 Mo. 674, 203 S.W.2d 407, 408 (Mo. banc 1947); State v. Deppe, 286 S.W.2d 776, 781 (Mo.1956); State ex rel. Rainey v. Crowe, 382 S.W.2d 38, 42 (Mo.App.1964).

Policy argues in favor of acknowledging that a woman may exercise the common law right to change names. The custom of restricting a married woman’s right to use a surname other than her husband’s is an outgrowth of societal compulsion and economic coercion inconsistent with developments granting women equal legal rights. The concept that the husband and wife are one, the “one” being the husband, has been abandoned. Insistence that a married couple use one name, the husband’s, is equally outmoded.

Petitioner chose to petition for a court ordered change of name under Section 527.270 (RSMo.1969, V.A.M.S.) rather than use the common law method to change her name. What has previously been said in reference to petitioner’s common law right to change names, therefore, simply confirms petitioner’s right to utilize the statutory procedure for changing names. Section 527.270, supra, and Rule 95.01, V.A. M.R. which is its counterpart do not abrogate and are merely supplemental to the common law method of name change. Under the common law, the change of name is accomplished by usage or habit, and under the statutory method, the change is accomplished by court order and public record. The primary difference between the two methods is, therefore, the speed and certainty of the change of name under the statutory procedure. 57 Am.Jur.2d, Name, § 11 (1971); 65 C.J.S. Names § 11(2) (1966). While no Missouri case has yet considered the relationship between the common law and statutory method of name change, the court’s view that the common law and statutory methods of changing name coexist is consistent with the language of Section 1.010, supra, since Section 527.270 (RSMo 1969, V.A.M.S.) does not expressly abrogate the common law or invalidate the common law by inconsistency.

Petitioner’s second argument urges that the trial court abused its discretion by denying the petition for change of name. The scope of discretion to deny a petition for change of name is narrow. Although no court in Missouri has previously considered the trial court’s discretion to deny a name change petition, the advantages of the statutory procedure as against the common law method oblige this court to restrict the trial court’s discretion. The statutory procedure accomplishes the change of name quickly and provides a means of notification to third parties under Rule 95.03 and Section 527.290 (RSMo 1969, V.A.M.S.). The petitioner also avoids any risk of prosecution for use of an unregistered, fictitious name under Section 417.200, supra, by using the statutory rather than common law method.

Our research had disclosed no appellate decision in any state which affirmed the trial court’s denial of a married woman’s name change petition on the ground of an ongoing marriage. Petition of Hauptly, 312 N.E.2d 857 (Ind.1974); Marshall v. State, 301 So.2d 477 (Fla.App.1974); Application of Halligan, 46 A.D.2d 170, 361 N.Y.S.2d 458 (1974); Application of Lawrence, 133 N.J.Super. 408, 337 A.2d 49 (Super.Ct.App.Div.1975). These cases hold that it is an abuse of discretion to deny a married woman her name change on grounds other than those specified in the statute or at common law or that it is an abuse of discretion to deny the petition on grounds which lack evidentiary support.

We are persuaded that the trial court abused its discretion in denying petitioner her requested name change. Both Rule 95.-01, and Section 527.270 (RSMo 1969, V.A. M.S.) provide:

“Hereafter every person desiring to change his or her name may present a petition to that effect, verified by affidavit, to the circuit court in the county of the petitioner’s residence, which petition shall set forth the petitioner’s full name, the new name desired, and concise statement of the reason for such desired change; and it shall be the duty of the judge or such court to order such change be made, and spread upon the records of the court, in proper form, if such judge is satisfied that the desired change would be proper and not detrimental to the interests of any other person.”

In view of petitioner’s common law right to change her name, the requested name change is proper. A husband no longer has the right to beat his wife with a switch no larger than his thumb. Bradley v. State, Walker Miss.Rep., 156 (1824); State v. Rhodes, 61 N.C. 453 (1868); 1 W. Blackstone, Commentaries 444-445. The law will not keep a wife under her husband’s thumb by compelling her to keep his name once she has chosen another. The record before us is devoid of evidence of harm to third parties. Since petitioner’s husband joined in her petition, no harm to her husband can be presumed, and possible harm to children born to the marriage in the future is too speculative. No harm to the state is shown by the record since petitioner did not request a name which is bizarre, obscene, offensive, or of a governmental body.

While the trial court’s order did not indicate what parties petitioner’s name change would harm, the court appears to have been concerned with detriment to creditors of petitioner and her spouse. The damage to the couple’s creditors is no greater than that to the creditor of any person whose name has been changed, yet creditors have not complained of undue harm when women have assumed their husband’s name upon marriage or changed their names following divorce pursuant to Section 452.100 (RSMo 1969, Y.A.M.S.). Given the notice provided creditors by Rule 95.03 and Section 527.290, supra, it is at least'as possible to defraud a creditor by nondisclosure of the' existence of a spouse with the same name as the existence of a spouse with a different name. In addition, it does not seem difficult or uncommon to include the spouse’s name, whether it be the same or different, whenever marital status is requested by creditors.

It should be noted in this regard that a wife’s property is not automatically subject to the debts of her husband and that a wife is deemed a femme sole for most purposes. §§ 451.250, 451.290 (RSMo 1969, V.A.M.S.). It is difficult to imagine prima facie harm to creditors under these circumstances. Both spouses will be known when they seek credit together. The husband’s creditors have no automatic right to proceed against the wife’s property. The wife’s creditors gain an unexpected advantage if they have extended credit to a woman believed to be single who is married and whose husband is found to be obligated for the particular debt involved. In times past, the management of a woman was “given” to the woman’s husband by her father in the marriage ceremony. The woman was symbolically, if not literally, traded from father to husband like a chattel. Today, a woman is under new management, her own. If a married woman can obtain credit in her own name, creditors are not automatically damaged by permitting a woman to select the name under which she will seek credit.

A name change petition is not self executing. The trial judge retains the discretion under Rule 95.01, supra, to deny a petition if he has before him some evidence that third parties will be harmed by the name change. The fact that a woman is married, however, is not prima facie evidence of harm to third parties. This court need not decide precisely what evidence is required to deny the name change. The record contains no evidence of harm to petitioner’s spouse, future children, or creditors; and, since the name Montage is not bizarre, obscene, offensive; or, of a governmental body the state is not harmed by the use of that name.

Constitutional claims presented in petitioner’s third argument are not properly before the court; thus, the court is not deprived of its jurisdiction under State ex rel. Pickwick Stage Lines v. Barton, 222 Mo.App. 1236, 4 S.W.2d 852, 855 (1928), or Kircher v. Evers, 210 S.W. 917 (Mo.App.1919). Petitioner’s brief argues hypothetically that her constitutional rights are infringed if the laws of Missouri prohibit a married woman from choosing a surname other than her husband’s or compel a married couple to select and use one surname exclusively. Since this court has not so interpreted the law, petitioner’s constitutional claims are not before the court.

The judgment is reversed and the trial court directed to issue its order changing petitioner’s name as prayed.

WEIER, P. J. and RENDLEN, J., concur.

      . Petitioner has graduated from Law School and is now a member of the Missouri Bar.

      . This historical summary is drawn from 32 Md.L.Rev. 409 (1972) and Lamber, A Married Woman’s Surname: Is Custom Law?, 1973 Wash.U.L.Q. 779. In the United States, recent cases declare that English common law allows a woman to retain her birth-given name after marriage unless she adopts her husband’s name through usage. State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961); Stuart v. Board of Supervisors of Elections for Howard County, 266 Md. 440, 295 A.2d 223 (1972); Kruzel v. Podell, 226 N.W.2d 458 (Wis. 1975); Dunn v. Palermo, 522 S.W.2d 679 (Tenn.1975); Custer v. Bonadies, 30 Conn. Supp. 385, 318 A.2d 639 (1974). But see People ex rel. Hago v. Lipsky, 327 Ill.App. 63, 63 N.E.2d 642 (1945).

      . It is not difficult to understand a married woman’s assumption of her husband’s name given the disabilities and privileges afforded a married woman under the common law. Blackstone set out the law relating to husband and wife, and enunciated the now famous rule that the husband and wife were one. 1. W. Blackstone, Commentaries 442. The husband was obligated to supply his wife with necessaries and to pay her debts so long as she comported herself as a proper wife. The husband and wife were prohibited from giving evidence for or against each other in most legal proceedings, and the wife could not sue or be sued without joining the husband. The wife was presumed to act under her husband’s coercion. 1 Blackstone, supra, at 442-444. The last doctrine was utilized to make the husband alone liable for the couple’s joint torts, Dailey v. Houston, 58 Mo. 361 (1874); to make the husband jointly liable for his wife’s torts, Nichols v. Nichols, 147 Mo. 387, 48 S.W. 947 (1898); and to presume that the husband alone was liable for torts and crimes committed by the wife in his presence, Smith v. Schoene, 67 Mo.App. 604 (1896); State v. Murray, 316 Mo. 31, 292 S.W. 434 (1926). A wife had no capacity to contract at common law. Sharkey v. McDermott, 16 Mo. App. 80 (1884).
      Marriage also had a considerable impact on property rights. Blackstone said that all of the wife’s chattels vested in the husband, 2 Blackstone, Commentaries 433, and this principal was adopted in Missouri. Hunt v. Thompson, 61 Mo. 148 (1875). The husband owned all of the wife’s personal property, including choses in action which had been reduced to possession, Hunt v. Thompson, supra, and any wages earned or services performed by the wife, Plummer v. Trost, 81 Mo. 425 (1884). All rents and profits from a wife’s lands belonged to her husband. 2 Blackstone, supra, at 434; Dillenberger v. Wrisberg, 10 Mo.App. 465 (1881). A husband could dispose of his wife’s property as he wished, 2 Blackstone, supra, and the wife’s property was liable for the debts of her husband. 2 Blackstone, supra; Grimes v. Long, 48 Mo. 340 (1871). The husband’s right of curtesy was a larger interest than the dower right accorded the wife. 2 Blackstone, supra, at 433.

      . 1 W. Blackstone, Commentaries 442.


author: WASSERSTROM, Presiding Judge.

text:
    SHERWOOD MEDICAL INDUSTRIES, INC., and Krause Dental Supply & Gold Co., Inc., Respondents, v. BUILDING LEASING CORPORATION, Appellant.
    No. KCD 26742.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Thomas C. Walsh, St. Louis, Bernard D. Craig, Jr., Kansas City, for appellant.

      Joseph E. Stevens, Jr., Irwin E. Blond, Kansas City, for respondents.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Sherwood Medical Industries, Inc. (Sherwood) and Krause Dental Supply & Gold Co., Inc. (Krause) brought this suit against Building Leasing Corporation (BLC) to enjoin interference by BLC with their use and possession of certain leased premises, and to recover damages from BLC for breach of its agreement as landlord to grant quiet enjoyment of those premises. BLC counterclaimed for injunction against further use and occupancy of the property by plaintiffs and for an award for damages against them. The trial court entered judgment for damages against BLC and dismissed BLC’s counterclaim. From that judgment BLC appeals.

On December 17, 1956, BLC entered into a lease with A. S. Aloe Company (Aloe) under which BLC agreed to erect for Aloe’s use a one-story office and warehouse building to be a part of BLC’s Byram Ford Industrial Park. The lease was to continue for a principal term of 30 years, with an option by the tenant to extend the term for three additional 10-year periods. The annual rent reserved was $9,000. Paragraph 5 permitted “such purposes as shall be lawful,” and paragraph 17 permitted subletting by the lessee “for any lawful purpose.” Paragraph 11 granted the lessee the right to make changes and alterations “as Lessee shall deem necessary or desirable in connection with the requirements of its business” provided that no change should reduce or adversely affect the value of the building nor diminish the utility of the building. Paragraph 10 required Aloe to keep the premises in good repair. Paragraph 18 reserved to BLC the option to terminate the lease upon any default of the lessee if “such default shall not be cured within thirty (30) days after Lessor shall have given to Lessee written notice specifying such default or defaults.”

Aloe occupied the building for its business of sale and distribution of medical supplies until January, 1970, at which time it merged with Brunswick Corporation. Brunswick had as a subsidiary Sherwood, which was also engaged in the medical supply business, and Brunswick, upon appropriate notice, assigned the lease to Sherwood. Sherwood occupied until about September, 1970, when it discontinued its business operations in Kansas City and moved out of the building in question.

Sherwood continued to pay rent, but turned the property over to Solbin, a realtor, in an effort to find a sublessee. During the month of October, Solbin took representatives of Krause to go through the premises. On that occasion they were confronted by Barket, president of BLC, who asked what they were doing there. Upon being informed that Solbin represented Aloe, Barket suggested that “perhaps we could deal with him, being that he was in negotiations with Aloe Company to buy back their lease.” Barket later commissioned Solbin to act on his behalf in leasing the building. However, BLC failed in its negotiations with Aloe, and on November 6, 1970, a sublease was executed by Sherwood to Krause. Under the sublease the annual rental was $22,389.75, representing a profit to Sherwood of $13,398.75 per annum.

Promptly after execution of the sublease, Krause commenced alterations to the building to better accommodate its business of the sale of dental supplies. The alterations included: dropping the ceiling in the office area and part of the warehouse space by means of a new false ceiling; installing a new central air conditioning and heating system; dividing the office area with moveable partitions; and installing new electric wiring for improved lighting. The alterations also included the opening of three holes in an interior wall, two window size and one door size.

On November 9, very soon after the alterations had begun, BLC sent a letter to Brunswick notifying of a termination of the underlying lease. In December, shortly after the expiration of the 30-day notice period, BLC blocked Krause from entry into the building by changing locks on the door. Krause managed to gain entry and continued work until sometime in January, when BLC again changed the locks and chained the doors.

On January 25, 1971, Sherwood and Krause filed petition in the Circuit Court for a temporary restraining order which was granted. In due time, BLC filed its answer and counterclaim in which it, in turn, asked for an injunction against Sherwood and Krause. An evidentiary hearing was held, after which the trial court denied injunctive relief to BLC on February 12.

Thereupon, BLC complained to city officials and on February 18, the Kansas City Building Code Engineer notified Krause that it was ordered to cease and desist from further work until a city building permit was obtained. Krause immediately hired the necessary architect and engineer to draw appropriate plans and specifications. An application for the building permit was then filed and the permit was issued on March 1. Construction again began under the permit and was substantially completed by the end of March, 1971. BLC concedes in its brief that “[t]he construction, as finally completed, was structurally sound and in compliance with the building code.”

The points made by BLC on this appeal are that: 1) BLC had the right to terminate the lease because Krause breached its duty to use the premises only for lawful purposes and its duty to keep the premises in good repair; 2) the lease did not authorize Krause to make substantial structural modifications to accommodate its business; and 3) damages should not have been imposed against BLC in favor of Sherwood, since BLC was simply making a legitimate attempt to prevent waste to its property and also because Sherwood had no standing to recover damages.

I.

Preliminary to discussing BLC’s points on appeal, a pending motion by Sherwood and Krause to dismiss the appeal calls for consideration. Those respondents first directed their motion to the original brief filed by BLC in this court. Thereafter, BLC filed an amended brief. Feeling that the amended brief still did not comply with Rule 84.04(c), V.A.M.R. respondents have renewed their motion to dismiss. BLC’s amended brief is not so deficient as to warrant dismissal of the appeal. Respondents’ motion is therefore overruled.

II.

BLC’s first point, that Krause was not using the premises for a “lawful purpose” and that it failed to keep the premises in good repair, is reduced in the argument portion of its brief to the contention that the attempt to make alterations without a city permit was in and of itself a violation of the lease prohibition against unlawfulness and was sufficient to warrant termination. The basic fallacy in the argument is that the “lawful purpose” clause is violated only when the illegality pertains to a functional use of the premises. In this case the attempt to make alterations was not a functional use, but only a preliminary to the commencement of the desired functional use. The functional use to which Krause proposed to put these premises was that of storing and merchandising dental supplies. BLC does not even claim that there was anything illegal or unlawful in that functional purpose.

Only a single case has been cited or found which in any way indicates that some ancillary legal violation such as that here should be considered as an “unlawful purpose” sufficient upon which to grant a forfeiture of the lease. That case is American Legion Holding Corporation v. Hurowitz, 72 S.D. 89, 30 N.W.2d 9 (1947), which held that the lessees’ failure to register their trade name under the fictitious name statute rendered their occupancy an “unlawful business or purpose” within the prohibitory clause of their lease. However, that case was flatly rejected in FCA Properties v. Hudson Oil Company of United States, Ine., 35 Mich. App. 79, 192 N.W.2d 390 (1971), which holds that such a lease provision pertains only to the functional use of the premises and has no reference to compliance or non-compliance with peripheral regulatory statutes. We prefer to follow the FCA Properties view. See also Gasser v. Jet Craft Ltd., 87 Nev. 376, 487 P.2d 346 (1971) and Intertherm, Inc. v. Structural Systems, Inc., 504 S.W.2d 64 (Mo.1974).

Moreover, the rule uniformly followed is that a lease provision prohibiting an unlawful purpose is not violated by a single act, but rather the prohibition contemplates continuing or customary illegal use. 3A Thompson on Real Property, § 1324, page 551; “Provision of lease or statute as to forfeiture where premises used for unlawful purpose, as contemplating a single use or a continuous use,” 145 A.L.R. 1063; Ruffino v. Ruffino, 138 So.2d 609 (La.App.1962).

The lack of any continuous or customary illegal use in this case is emphasized by the promptness with which Krause corrected its delinquency as soon as this matter of a city permit was called to its attention. Indeed, the failure of BLC to give adequate notice to Krause or its sublessor with respect to this matter, as required by paragraph 18 of the principal lease, in itself constitutes compelling reason why its attempted forfeiture of the lease cannot be given effect. The notice which was sent on November 9, 1970, stated as grounds for forfeiture merely:

“1. The failure of the Lessee to use the leased premises in accordance with the terms and conditions of said lease and to propose certain uses of said premises not lawful nor available to the Lessee;
“2. The failure of the Lessee to keep the leased premises maintained and repaired in accordance with the terms and conditions of the lease.”

The trial court found this notice in those generalized, vague terms was inadequate to comply with paragraph 18, and that conclusion is correct. In the absence of sufficient specificity to convey notice to the lessee of the precise nature of his delinquency, forfeiture should not be permitted. Independence Flying Service, Inc. v. Abitz, 386 S.W.2d 399, 404 (Mo.1965).

BLC argues that the trial court erred in making any reliance upon the adequacy or inadequacy of the notice of termination, taking the position that “[n]o notice whatsoever is or should be required to terminate a lease for misuse or abuse of the landlord’s property by the tenant.” The cases upon which BLC relies are those where there was no lease provision requiring a notice in order to accomplish a lease termination. That factor completely distinguishes the cases upon which BLC relies. See for example Geer v. Boston Little Circle Zinc Co., 126 Mo.App. 173, 103 S.W. 151, 156 (1907), which holds that “ . . .no notice was necessary at common law, save as provided in the lease.” (emphasis added).

For the reasons stated, BLC’s first point is overruled.

III.

BLC divides its argument under its second assignment into three subpoints. Each of those will be considered seriatim.

A.

BLC first argues that Krause has made a change in the use of the building so radical as to constitute waste within the meaning of § 537.420, RSMo 1969, V.A.M.S. This contention has two prongs, the first of which charges Krause is departing imper-missibly from the original use contemplated by the original parties to the lease, and the new use by Krause will no longer comport with the unified character of the Industrial Park of which the premises are a part. The second prong of this argument is the claim that the amount of storage space in the leased building has been so far reduced as to change the basic character of the building.

A comparison of the new use proposed by Krause as compared to the original use by Aloe discloses very little dissimilarity. Aloe was in the business of warehousing and merchandising medical supplies, while Krause is in the very similar business of warehousing and merchandising dental supplies. The record shows that the building as altered by Krause could have been used by Aloe for its purposes, and BLC in its brief concedes this to be true.

BLC cites Fairlawn Plaza Development, Inc. v. Fleming Co., Inc., 210 Kan. 459, 502 P.2d 663 (1972), for the proposition that when a building is erected by the landlord specifically for a lessee as part of a shopping center, then that use becomes a special aspect of the contract which cannot be changed by thé lessee. It also cites Coach House of Ward Parkway v. Ward Parkway Shops, 471 S.W.2d 464 (Mo.1971) for the proposition that Missouri also acknowledges the special qualities and the architectural and business integrity of shopping centers. BLC goes on to argue that an industrial park is just as specialized as a shopping center and should be accorded like special treatment.

The eases cited considered problems quite different from the one here and are not in point. More apropos is Crestwood Plaza, Inc. v. Kroger Co., 520 S.W.2d 93 (Mo.App.1975), where a building was erected as part of a shopping center by the shopping center operator specifically for the use of Kroger Co. as a retail food supermarket. The lease, however, contained no express restriction on use other than that it must be a “lawful use.” Thereafter Kroger became dissatisfied with the premises and (as in the case at bar) found that it could sublease the property at a higher rental, in that case to an electric company. The landlord (like BLC here) offered to buy out the Kroger lease so that it could itself make a new lease at the higher rental. When Kroger refused the lease cancellation, the landlord brought suit for declaratory judgment and injunction to void both the Kroger lease and the sublease from Kroger to the electric company. The St. Louis District of this court held that the Kroger lease did not limit the use to that of a retail food supermarket and did not prohibit the sublease. Like reasoning applies here, so far as the claim of special character of the industrial park is concerned.

With respect to the claimed change in character of the building by reason of reduction in cubic storage space, the record shows that Aloe originally used the building primarily for warehousing with only a small unfinished office. The alterations made by Krause converted part of the warehouse space into a finished display room and did cut down the total storage space primarily because of the lowered false ceiling. However, even the new display space is still used for a storage function.

BLC cites a number of cases for the proposition that a tenant may not make a radical change from the originally contemplated use to something entirely different. Typical of the cases cited is Ritchie v. State Board of Agriculture, 219 Mo.App. 90, 266 S.W. 492 (1924), in which this court held that premises leased for farm land could not be converted to a use for the purpose of camping, automobile parking and uses ancillary to a state fair. Ritchie and similar cases turn on their facts and do not indicate, much less hold, that the factual situation here constitutes such a radical change in use as to be prohibited.

The trial court after a review of the detailed evidence in this case found that “the business done by Krause is essentially the same as that done by its predecessor Sherwood and that the building is used in essentially the same manner * * * Instead of the building being merely a bare bones warehouse and office space, it is now a finished office area and an improved warehouse area.” That finding being reasonable under the evidence, it is adopted.

B.

BLC next argues that the alteration clause, paragraph 11 of the lease, only permits changes necessary for the business requirements of the original lessee Aloe, and does not give any permission for changes to meet the business requirements of the sub-lessee Krause. In presenting this argument, BLC does not clearly identify its position; that is, whether (1) it would deny Krause the right to make any alteration, or (2) it means only that Krause cannot make an alteration which would not be necessary for Aloe’s requirements if Aloe had continued to occupy for the purposes of Aloe’s original business. After a close reading, BLC’s argument must be understood as being the latter. If by any chance the broader argument is intended, no authority is cited nor has any been found, and an argument going to such an extent would be so unreasonable as to require rejection. Surely, a sublessee should be permitted at least to make those alterations which would have been permitted to the sublessor. The only question worthy of debate is whether the sublessee may make alterations distinctive to its operations and which would not have been of a character incident to the subles-sor’s business.

The cases are not in accord as to whether an alteration clause such as the one here authorizes changes in the premises solely to the extent appropriate for the business of the original lessee or whether on the other hand permission under the lease to enter into subleases carries with it the right of the sublessee to make alterations appropriate to its own business, even though its business may be different from that of the original lessor. F. W. Woolworth Co. v. Nelson, 204 Ala. 172, 85 So. 449 (1920), cited by BLC, does support the more restrictive view that the permission for alterations “was not intended for the independent use of sublessees and cannot be extended to include the changes prompted by their necessities, much less by considerations of convenience merely.” However, that case represents a minority position and cases from Texas, Montana and California hold to the contrary. Mayer v. Texas Tire & Rubber Co., 223 S.W. 874, 875 (Tex.Civ.App.1920); Fair West Building Corp. v. Trice Floor Coverings, 394 S.W.2d 707 (Tex.Civ.App.1965); Turman v. Safeway Stores, Inc., 132 Mont. 273, 317 P.2d 302 (1957); Spring Street Realty Co. v. Trask, 126 Cal.App. 765, 15 P.2d 195 (1932). The persuasive ruling of these cases is succinctly stated in Fair West:

“ . . . the stipulation in the contract according the lessee the right to sublet the premises, in part or in whole, carries with it the right of the lessee to make such changes and additions in the building as are reasonably necessary to the lease of the building by such tenants, provided such changes do not constitute a substantial change in the structural quality of the building, and where the additions can be removed at the expiration of the lease without injury to the building.”

But even if the Alabama rule were to be followed, the alterations made by Krause in this case would be authorized. As already stated, the business of Krause is only marginally different from that of Aloe. The alterations made by Krause would have been appropriate to Aloe’s original operations and as admitted in BLC’s brief, “the building as reconstructed could have been used by Aloe.” There being no radical change in the nature of the use, the Krause alterations should be deemed proper under either legal rule.

C.

For its third subpoint, BLC argues that the Krause alterations reduced the value of the building in violation of paragraph 11 of the lease. This argument strikes an odd chord when considered in the light of the fact that Krause has expended $50,000 on the improvements and the rental value has been increased from $9,000 annually to $22,-389.75.

BLC’s principal expert witness attempted to overcome this very obvious hurdle by seeking to draw a distinction between the value of the leasehold to the tenant in contrast to the value of the reversion to the landlord. The attempted distinction is highly artificial under the facts of this case. Obviously the property has greater value now than it had before Krause made its improvements. The real nature of BLC’s complaint is that it cannot reap the benefit of that increment in value. However, even though the lease contract negotiated by BLC in 1956 may now have turned out to be disadvantageous to it, that is not the fault of the alterations made by Krause and gives rise to no basis upon which BLC can now declare a forfeiture.

Appraising all of the facts, the trial court found that the Krause improvements “do not damage the building but rather enhance the value of the building” and that the $50,000 improvement “does not damage BLC’s reversionary interest.” These findings find support in the evidence and will be accepted. Rule 73.01.

IV.

Finally, BLC challenges the award of damages to Sherwood on the grounds that: a) its actions to exclude Krause was a legitimate attempt to prevent Krause from committing waste; and b) Sherwood, to whom the damages were awarded, had abandoned the premises, and therefore had no posses-sory interest which would support damages for breach of quiet enjoyment.

The defense based on the theory of preventing waste cannot stand in the face of the conclusion already discussed under point III of this opinion that no waste was committed. Furthermore, BLC’s right of self-help was limited by paragraph 18 of its lease which required 30-days written notice during which period the lessee and subles-see would have opportunity to cure the default. As already held under point II of this opinion, such notice was not given.

The claim that Sherwood had abandoned the premises is devoid of merit. The fact is that on November 6, 1970, it had entered into a formal sublease with Krause, to which it assumed definite obligations, including a warranty of its legal right to make the lease and a covenant to Krause of the right to quiet enjoyment. Numerous cases hold that a sublessor such as Sherwood here may have a cause of action against the original lessor for interference by the latter with subtenants. “Liability of landlord for interfering with tenants of lessee,” 70 A.L.R. 1477.

Affirmed.

All concur.