text:
    James R. JOHNSON et ux., Appellants, v. Harold COGGESHALL et al., Appellees.
    No. 12897.
    Court of Civil Appeals of Texas, Austin.
    March 7, 1979.

      Way nene C. Combest, Veitch & Britt, Inc., San Antonio, for appellants.
    John O. Kain, Kain & Reedy, Houston, for appellees.
   SHANNON, Justice.

This is an appeal from an order overruling appellants’ pleas of privilege and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, subdivisions 9a and 29a (1964).

Appellees Harold Coggeshall, Delta Transport, Inc., and Jose Cardenas sued appellants James R. Johnson and Mary Johnson, husband and wife, for damage to and loss of use of a 1969 Kenworth truck. The truck, while being driven by Cardenas, was involved in a collision with a Volkswagen bus driven by Mary Johnson.

In their trial petition appellees pleaded that Mary Johnson was negligent in operating her vehicle upon the wrong side of the road, in keeping an improper lookout, in failing to “swerve,” and in failing to make timely application of her brakes, and that such negligence proximately caused damage in the sum of $17,500.

Appellees alleged further that appellants were engaged in a joint venture at the time of the collision, or alternatively, that Mary Johnson “. . . was about and furthering the business of the community estate and was in the course and scope of such activity at the time of the collision. . .”

Appellants filed pleas of privilege praying that the cause be transferred to Bexar County, the county of their residence. Ap-pellees filed controverting affidavits relying upon subdivisions 9a and 29a.

After trial before the court, judgment was entered overruling appellants’ pleas of privilege. Appellants requested that the district court file findings of fact and conclusions of law, but the court filed none.

As of the time of the collision, Tex.Rev. Civ.Stat.Ann. art. 1995, subdivision 9a, provided:

“9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
1. That an act or omission of negligence occurred in the county where suit was filed.
2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
3. That such negligence was a proximate cause of plaintiff’s injuries.” Subdivision 29a provides as follows:
“29a. Two or more defendants.— Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

The collision occurred during the late afternoon of May 23, 1977, near Bracken on Farm Road 2252 in Comal County. The truck and the Volkswagen bus were traveling in opposite directions and were in the process of negotiating an ess curve at the time of the collision.

Appellees’ proof of their claim that their damages proximately resulted from the negligence of Mary Johnson rests primarily upon the testimony of truck driver Cardenas and the investigating highway patrolman, Carl L. Davis. Cardenas testified by deposition that the truck he was driving north was pulling an empty dump trailer. He stated that from the time his truck approached the curve until the collision occurred, no part of the truck or trailer crossed over the yellow center stripe into the southbound lane. After the collision, the truck and the trailer, according to Cardenas, were both still entirely within the northbound lane. When Cardenas first saw the Volkswagen bus, it was about one hundred-fifty to two hundred feet from his truck. At that time his truck was coming into the second part of the curve. The bus was coming toward him “pretty fast” and was two or three feet across the center stripe onto the “wrong” side of the highway. Cardenas could see Mary Johnson, the driver of the bus, leaning over to the right of her vehicle and looking down to the right. Mrs. Johnson looked up, apparently saw the oncoming truck, “turned loose” the steering wheel, and them jumped to the right side of the Volkswagen bus. From the time Cardenas saw the bus until time of the collision, the speed of the bus was more or less constant. When Cardenas first saw the bus, he began braking the truck.

The investigating officer’s testimony was that the impact between the vehicles occurred in the northbound lane or on the “truck’s side of the road.” The Volkswagen left no skid marks. The truck and trailer left about one hundred feet of skid and skip marks. When the brakes of the truck were first applied, the trailer was somewhat over the center stripe into the southbound lane.

Mary Johnson was injured in the collision and was not able to recall any of the facts of the accident. No one else saw the collision.

Appellants attack the judgment by nine points of error. By points one through six appellants claim there was no evidence or insufficient evidence that Mary Johnson was guilty of negligence proximately causing the collision. Points seven through nine attack the district court’s implied finding that Mary Johnson was acting as agent for James R. Johnson at the time of the collision. Appellants do not attack the implied conclusion of the court that venue was established in Comal County as to James R. Johnson under subdivisions 9a and 29a because appellants were engaged in a joint venture at the time of the collision.

In determining a “no evidence” point of error, it is proper to consider only that evidence most favorable to the finding and disregard entirely that which is opposed to it or is contradictory. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 166 Tex. 502, 171 S.W. 696 (1914). In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951).

As basis for their no evidence point, appellants urge this Court to disregard all of Cardenas’ testimony as having no probative value, since it was “. . . totally lacking in credibility.” Appellants characterize Cardenas’ testimony as “preposterous” and as amounting to no more than a deliberate “lie.” Because Cardenas testified by deposition, appellants suggest that the district court could not judge his credibility and the weight to be given his testimony.

It is true that there was inconsistency between Cardenas’ recollection and the physical facts as to whether the trailer had ever been over into the southbound lane. Nevertheless, the court could accept part of the testimony of the witness and disregard the remainder. The fact finder, the trial court in this instance, is the judge of the credibility of the witnesses and the weight to be accorded their testimony, Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686 (1936), and the rule is applicable equally to a witness appearing in person or by deposition. Galveston, H & SA Ry. Co. v. Matula, 79 Tex. 577, 15 S.W. 573 (1891).

There was evidence, which we have summarized, from which the trial court could have concluded that Mary Johnson was negligent in operating her vehicle on the wrong side of the road; in keeping an improper lookout; and in failing to turn her vehicle; and that such negligence was a proximate cause of the collision. Points one through six are overruled.

Appellees rely upon subdivisions 9a and 29a to hold their suit against James R. Johnson in Comal County. Appellees pleaded that Mary Johnson and James R. Johnson were engaged in a joint venture at the time of the collision, or alternatively, that Mary Johnson was acting as James R. Johnson’s agent at the time of collision. Upon proof of either theory, the negligence of Mary Johnson would be imputed to her husband, Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974); Trice v. Bridgewater, 125 Tex. 75, 81 S.W.2d 63 (1935); Graham v. McCord, 384 S.W.2d 897 (Tex.Civ.App.1964, no writ), thereby satisfying the requirements of subdivision 9a. With respect to subdivision 29a, appellees claim that James R. Johnson, as a member of the joint venture, is a “necessary” party within the meaning of that subdivision. Accordingly, because suit is maintainable in Comal County against Mary Johnson, then suit is also maintainable there against the joint venturer, as he was a “necessary” party. Whitley v. King, 227 S.W.2d 241 (Tex.Civ.App.1950, no writ).

The district court did not specify in the judgment the basis for overruling the plea of privilege of James R. Johnson. The court was not required to file findings of fact and conclusions of law. Tex.R.Civ.P. 385(e). By overruling James R. Johnson’s plea of privilege, the court impliedly found either that there was a joint venture or that Mary Johnson was acting as agent for her husband in driving the Volkswagen bus. In points of error seven, eight, and nine, appellants complain that the implied finding that Mary Johnson was acting as agent for her husband was supported by no evidence or insufficient evidence or was so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Appellants do not complain by point of error with respect to the implied finding that husband and wife were engaged in a joint venture thereby fixing venue in Comal County as to James R. Johnson by virtue of subdivision 9a. Likewise, appellants assigned no error to the implied finding of the district court that venue in Comal County as to James R. Johnson was proper under subdivision 29a.

Where a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the judgment will be affirmed on the ground to which no complaint is made. In such situations it is said that the appellant has waived his right to complain of the ruling to which no error was assigned. Nesmith v. Hester, 522 S.W.2d 605 (Tex.Civ.App.1975, no writ); Independence Ins. Co. v. Republic National Life Ins. Co., 447 S.W.2d 462 (Tex.Civ.App.1969, writ ref’d n. r. e.); Hudson v. Buddie’s Super Markets, Inc., 488 S.W.2d 143 (Tex.Civ.App.1972, no writ); Le Juene v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App.1966, writ ref’d n. r. e.). The judgment overruling the plea of privilege of James R. Johnson will be affirmed upon the basis of either subdivision 9a or 29a.

The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    George H. LOWTHER et ux., et al., Appellants, v. George H. LOWTHER, Jr., et ux., Appellees.
    No. 5963.
    Court of Civil Appeals of Texas, Waco.
    March 8, 1979.
    Rehearing Denied March 29, 1979.

      Louis P. Linden, San Antonio, for appellants.
    James G. Murry, San Antonio, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants from judgment awarding plaintiffs title and possession of a described [house and] lot in the City of San Antonio.

Plaintiffs George H. Lowther, Jr., and wife Kristin sued defendants George H. Lowther and wife Luella, and Yvonne Rebecca Lowther, alleging George, Jr. was and is owner of a described [house and] lot in San Antonio; that in 1972 he executed a deed to such lot to Yvonne Rebecca; that he retained possession of the deed until January 1976 when he recorded it upon Yvonne Rebecca’s promise to reconvey the property to him “as soon as the smoke had blown away” in regard to possible claim of a former wife of George, Jr.; that Yvonne Rebecca has conveyed the property to George, Sr. and wife. Plaintiffs sought judgment for title and possession of the property.

Trial was to a jury which found among other matters that Yvonne Rebecca and Luella promised George, Jr. that if the deed to the property was recorded in January 1976, that they would deed the title back to George, Jr., “as soon as the smoke had blown away”; and that George, Jr. relinquished possession of the deed for recordation as a result of such promise.

The trial court rendered judgment vesting title and possession of the described lot in plaintiffs.

Defendants appeal on 11 points contending:

1) The judgment is unsupported by the pleading.
2) There is no evidence and/or insufficient evidence on which the trial court could impliedly find that a constructive trust had been imposed on the property.
3) The trial court erred in failing to make the statement of facts conform to the truth.

Plaintiff George, Jr. is the son of defendants George, Sr. and wife Luella; and is the brother of defendant Yvonne Rebecca. The defendants appeared pro se in the trial court.

George, Jr. and his first wife Debra purchased the property in controversy in early 1972. They made no down payment; made a YA loan for $9,750; and George, Jr.’s mother, Luella, as a gift to George, Jr. paid the closing costs of about $200. George, Jr. and Debra moved to Arkansas in March 1972. George, Jr. offered to sell his equity in the property for $300. to the realtor who had sold him the property, but when his parents objected he executed a deed to the property on April 19, 1972 to his sister Yvonne Rebecca. Yvonne Rebecca paid nothing. She moved into the house and thereafter made 6 payments of $85. on the loan. In October 1972 George, Jr. who was now divorced from Debra, returned to San Antonio and moved into the house with Yvonne Rebecca. George, Jr. had been awarded the property in the divorce from Debra. When George, Jr. moved into the house with his sister in October 1972 she gave him back the April 19, 1972 deed, which had not been recorded. George, Jr. commenced making the $85. per month payments on the loan and continued same for about six years. Yvonne Rebecca stayed in the house with George, Jr. for some three months, and moved out when George, Jr. married his second wife Kristin. In January 1976 Debra wrote George, Jr. inquiring if she had any interest in the house. George, Jr. became concerned and discussed the matter with his mother and sister. George, Jr. was encouraged to file the April 19,1972 deed to Yvonne Rebecca for record, and was told “when the smoke cleared” Yvonne Rebecca would deed the title back to him. George, Jr. and Kristin continued to live in the house until 1977 when they purchased a larger home, and contracted to sell the property here involved to a Mr. and Mrs. Narvaiz for $15,500. Yvonne Rebecca refused to deed the property back to George, Jr. and deeded it to George, Sr. and wife Luella. Yvonne Rebecca, George, Sr. and Luella all claim an interest in the property but did not testify as to what interest they claimed. George, Jr, at one point offered defendants $1000. in settlement, if they would reconvey the property to him. Defendants refused to convey the property to plaintiffs and plaintiffs filed this case.

No exceptions were levelled at plaintiffs’ pleadings and we hold that same, are ample to support the judgment. In the absence of special exceptions the petition will be liberally construed in the pleader’s favor and to support the judgment. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513; Tolson v. Carroll, CCA (Waco) NWH, 313 S.W.2d 131; Rule 90, TRCP. And insufficiency of a pleading cannot be raised for the first time on appeal. Sherman v. Provident American Ins. Co., S.Ct., 421 S.W.2d 652; Lewter v. Dallas County, CCA (Waco) NRE, 525 S.W.2d 885.

There is ample evidence from which the trial court could impliedly find that a constructive trust had been imposed upon the property. See: Oak Cliff Bank & Trust Co. v. Steenbergen, CCA (Waco) NRE, 497 S.W.2d 489; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401. Such cases hold the law imposes a constructive trust where there is a fiduciary or confidential relationship between two parties and the party holding property or money would profit by a wrong or be unjustly enriched if he were allowed to keep the property or money.

And a constructive trust is not in reality a trust but is an equitable remedy. Miller v. Huebner, CCA (Houston 14) NRE, 474 S.W.2d 587.

Defendants alleged some 73 inaccuracies in the Statement of Facts, and assert that the Statement of Facts had been altered. The trial judge had a hearing on the matter at which defendants failed to prove that any alteration had occurred.

All defendants’ points have been considered and are overruled.

AFFIRMED.


author: HUGHES, Justice.

text:
    Charles R. CROWELL, Appellant, v. Dorothy Faye CROWELL, Appellee.
    No. 18066.
    Court of Civil Appeals of Texas, Fort Worth.
    March 8, 1979.
    Rehearing Denied March 29, 1979.

      Farrar & Claunch and Jim Claunch, Fort Worth, for appellant.
    Jack H. Garrett, Fort Worth, for appel-lee.
   OPINION

HUGHES, Justice.

This appeal is from the division of property in a divorce case. Charles Crowell claims that the trial court erroneously classified his business as community property and thus abused its discretion and made an unjust division of the property.

We affirm.

The judge filed findings of fact and conclusions of law as requested by Mr. Crowell. In them he stated that all property, real, personal or mixed, owned by the parties was community. Mr. Crowell was awarded all outstanding shares of stock held in his name in the business; any and all interest in the business; a mobile home that he had purchased after their separation; a 1971 Pontiac (presently being used by a daughter by a previous marriage); a 1977 Triumph; furniture and appliances in his possession; and a color TV and stereo equipment.

Dorothy Crowell was awarded the family home; all furniture, appliances and personal effects in her possession, a 1971 Chevrolet and 160 shares of stock in the business that were in her name. All property awarded to either party was to be subject to any indebtedness charged against it. Money was owed on the mobile home, the Pontiac and the Triumph. The parties had stipulated that the value of the house was $34,000.00, with a balance due of $12,000.00, leaving an equity of $22,000.00.

The parties agreed Mrs. Crowell was to be the managing conservator of their two daughters and that Crowell was to pay $50.00 a week child support, as well as maintaining medical and hospital insurance on the children. He was named possessory conservator.

Crowell testified that: he began a tax service in 1961, a sole proprietorship at which he worked part time; it became a partnership in 1964, but he still only spent half of his time there; in early 1966 the tax service became his primary business. The couple married in October of 1966. A third partner was added in 1967 on a part time basis for only one “tax season”. The partnership purchased some office furniture and equipment and rented office space. In March of 1968 the business was incorporated. The couple separated in March of 1977. Husband testified he owned approximately 94% of the outstanding shares of the corporation. According to the latest financial statement sent to all stockholders, the corporation has assets in excess of $243,000.00.

Crowell contends his business was erroneously characterized as community then awarded to him as the major portion of his share of the community property. He argues the effect of the trial court’s erroneous characterization is that Mrs. Crowell received a disproportionate share of the community property. He argues that the business was his separate property and that its return to him should not have prevented him from receiving a fair share of the couple’s community assets. He claims that since the wife received the house (which he contends is the only sizable community asset), the trial court’s division of the property was manifestly unjust and the court abused its discretion.

As we understand Crowell’s arguments, a trial .court must correctly characterize a couple’s property in order to make a division of it that is “just and right”. In other words, a property division which is based on a miseharacterization is manifestly unjust and unfair.

In order to reverse the trial court’s property division, the record must reveal a clear abuse of discretion and that the property division is manifestly unjust and unfair. Further, it is presumed that the trial court exercises proper discretion in making the division of the estate. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). The issue then in this case is, if the property division was fair and just under the circumstances, is it even relevant whether or not the husband’s business was erroneously classified as community property?

Crowell argues that this division of the property violates the principles of Tex.Family Code Ann. §§ 3.63, 5.01 (1975) and the holding of the Supreme Court in Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977). § 3.63 provides that in a divorce the estate of the parties is to be divided “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Husband correctly states in his brief that the court in Eggemeyer held that the only estate of the parties to be divided under § 3.63 is the community estate. § 5.01 is the definition of a spouse’s separate property.

The Supreme Court in Eggemeyer held that title to separate realty may not be divested in favor of the other spouse, but it may be administered for the support of children. The issue of division of separate personalty, the type of property that was allegedly classified erroneously here, was not before the court. Some commentators have argued that some of the reasoning in Eggemeyer could also apply to a division of separate personalty and therefore it would follow that a division of it would be forbidden. See McKnight, Family Law: Husband and Wife, 32 Sw.L.J. 109, 124-125 (1978).

However, some of our intermediate appellate courts have approved a division of separate personalty. The Dallas Court of Civil Appeals concluded that the holding in Eggemeyer, supra, was limited to separate real estate, the only kind of property mentioned by the Supreme Court in that opinion. Muns v. Muns, 567 S.W.2d 563, 566 (Tex.Civ.App.—Dallas 1978, no writ). See also Eichelberger v. Eichelberger, 557 S.W.2d 587, 589 (Tex.Civ.App.—Waco 1977, writ granted) in which it was held that Eggemeyer does not control the division of separate personalty and the rule that the court may award all or a part of either spouses’ separate personal property to the other was applied. In the Eggemeyer case, the Supreme Court expressly approved the decision in Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1975, no writ). The court in Ramirez stated that the restriction on divestment of either spouse’s separate property relates only to separate real property, and courts have wide discretion in disposing of any and all personal property of the parties, separate or community. Id. 524 S.W.2d at 769.

The case law before the Eggemeyer decision was that an error in characterization of property as separate or community would not justify a reversal if the division was otherwise fair. Law v. Law, 517 S.W.2d 379, 384 (Tex.Civ.App.—Austin, 1974, writ dism’d). The Supreme Court has also held that it is appropriate to consider the extent of the separate estate of one spouse and its condition during marriage in making an appropriate disposition of the community assets and liabilities. Bell v. Bell, supra.

We find it unnecessary to reach the question of whether the husband's business was separate or community property. In dictum the court in Eggemeyer stated that trial courts have a broad latitude in the division of marital community property. 554 S.W.2d at 142, 147 to 149. Regardless of how the court characterized the husband’s business, it was empowered by the statute and case law to make the division it did of the couple’s community estate. Under the facts of this case we hold that the trial court did not make an unfair division of the couple’s community assets and did not abuse its discretion.

Affirmed.

       The Supreme Court limited its express approval to the actual decision in Ramirez which was that the enactment of § 3.63 of the Family Code did not change the law with respect to divestment of title to real estate. Hence, the intent of the Supreme Court in its reference to Ramirez is not clear. Muns, supra, 567 S.W.2d at 566.


author: WHITE, Judge.

text:
    R. K. SHEFFER and his wife, Wilma Jean Sheffer, d/b/a United States Barium Company, Appellants, v. CHROMALLOY MINING AND MINERAL DIVISION OF CHROMALLOY AMERICAN CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Jan. 12, 1979.
    Rehearing Denied March 23, 1979.
    William H. Cunningham, Eddyville, for appellants.
    B. M. Westberry, Marion, for appellee.
    Before WHITE, HOGGE and VANCE, JJ.
   WHITE, Judge.

This appeal concerns the propriety of a Livingston Circuit Court judgment on the pleadings in favor of plaintiff-appellee in a mortgage foreclosure action. Appellants contend a sufficient defense was raised in their pleading, precluding the judgment rendered. We disagree and affirm the judgment of the Livingston Circuit Court.

On October 5, 1976, appellants executed and delivered to appellee a promissory note in the principal amount of $750,000, payable in monthly installments. The note was accompanied by mortgages of the same date covering appellants’ interest in certain real estate, including rents, profits and improvements. A certain mining lease, as well as specified personal property, was also included in these mortgages, with appellee designated mortgagee. The purpose of the financing was to allow appellants to conduct barite and fluorspar mining operations in Livingston County, Kentucky.

The note contained an acceleration clause stating that the entire amount became due and payable in the event of default in the payment of any installment. Appellants failed to make payment on the August 1, 1977 installment. This action for foreclosure on the mortgages ensued.

Appellants contend the judgment on the pleadings was improper because the affirmative defense of want of consideration was properly raised, creating a sufficient defense or material issue. Where such defense or issue exists, a judgment on the pleadings is not warranted.

Archer v. Citizens Fidelity Bank & Trust Co., Ky., 365 S.W.2d 727, 729 (1963), discusses when a judgment on the pleadings under CR 12.03 is appropriate:

. [A] judgment on the pleadings can be granted only if, on the admitted material facts, the movant is clearly entitled to a judgment, [citations] Relief must be denied if there is a material issue of fact, [citations] Such motion is to be determined solely on the pleadings . When a party moves for judgment on the pleadings, he admits for the purposes of his motion not only the truth of all his adversary’s well-pleaded allegations of fact and fair inferences therefrom, but also the untruth of all of his own allegations which have been denied by his adversary. [citations] The question thus presented is one of law and requires an examination of the pleadings.

With appropriate guidelines established, we turn our examination to the pleadings filed in this action, noting that plaintiff-ap-pellee is the moving party under CR 12.03.

Appellants admit they failed to make the August 1, 1977, payment, but state:

. their failure to so pay was occasioned by the fact that the plaintiff negligently, carelessly and recklessly designed the mill site and supervised its construction in such a way that it could not produce the ore necessary for the fulfillment of the defendant’s obligations under the various documents filed as exhibits with the complaint.

In addition, appellants counterclaimed for damages for breach of contract by appellee in its failure to construct a mill in accordance with contract standards and that such construction was part of the consideration. Appellants also sue for negligence in construction of the mill. There is no written agreement concerning construction of the mill site. The loan agreement states that “this Agreement replaces and supersedes all previous written or verbal agreements, express or implied . . . and . contains the entire agreement between Chromalloy and U. S. Barium.”

Ordinarily, evidence of a contemporaneous oral agreement is incompetent and not considered a valid defense if pled. Buster v. Kindrick, Ky., 240 S.W.2d 624 (1951). However, want of consideration is recognized by statute as an exception to the parol evidence rule. KRS 371.030 pertains to contracts generally and states: “The consideration of any writing . . . may be impeached or denied by pleading.” KRS 355.3-408 concerns commercial paper and states: “[W]ant ... of consideration is a defense as against any person not having the rights of a holder in due course.” A holder in due course is one who takes for “value.” KRS 355.3-302(l)(a). Where want or lack of consideration is alleged, the validity of status as a holder in due course is questioned and KRS 355.3-408 should apply.

Under the guidelines of Archer, supra, the moving party on a motion for a judgment on the pleadings admits for the purposes of the motion the truth or denials of the adversary’s pleadings. Applying Archer, supra, to this fact situation, appel-lee as movant admits for the purpose of the motion appellants’ defenses. If want of consideration were properly pled, then this defense raises a sufficient defense or material issue precluding a judgment on the pleadings. “The allegation of no consideration raises a triable defense.” Crider v. Franklin Bank & Trust Co., Ky., 481 S.W.2d 56 (1972).

Appellee argues, however, that the defense was not properly pled. We agree. Appellants’ answer and counterclaim nowhere mentions “failure of consideration” as an affirmative defense. Rather, the pleadings recite negligent design of the mill site and breach of contract as reasons for failure to make the required mortgage payment. In oral argument, appellants’ counsel urged this Court to conclude that failure of consideration and material breach of contract are one and the same for purposes of pleading in this case. CR 8.03 requires that “a party . . set forth affirmatively failure of consideration . ..” We take the rule to mean what it says. Even in light of CR 1, which anticipates a liberal construction of the rules, to conclude that appellants’ pleading rises to the level of an affirmative defense envisioned by CR 8.03 is to alter CR 8.03 beyond recognition. Appellants’ pleadings simply do not assert any affirmative defense.

The judgment is affirmed.

All concur.


author:
RENDLEN, Judge.
      BARDGETT, Judge,

text:
    Pinkie L. CANNADA, Individually and for the benefit of herself and Myles Cannada, Respondents, v. Joe MOORE, Cleothes Smith and Alex Junior Burden, Appellants.
    No. 60989.
    Supreme Court of Missouri, En Banc.
    March 13, 1979.

      Denis C. Burns, James E. Godfrey, God-frey, Vandover & Burns, Inc., St. Louis, for appellants.
    Robert F. Ritter, Thomas C. DeVoto, Gray & Ritter, St. Louis, for respondents.
   RENDLEN, Judge.

This wrongful death action was transferred after opinion by the Missouri Court of Appeals, St. Louis District (now Eastern District) under Rule 83.02 that we might reexamine the existing law. The case is decided here as an original appeal, Mo. Const., art. V, § 10; Rule 83.09. Much of the Court of Appeals’ opinion by Stewart, J., is utilized without quotation marks.

The decedent, Frank Lee Cannada (Frank), an unmarried adult with no minor children, was killed July 2, 1972. Suit was brought by decedent’s mother, Pinkie L. Cannada, individually and for the benefit of Myles Cannada, decedent’s father. Frank died as a result of injuries received when the car in which he was riding was struck from the rear by an automobile driven by defendant Burden then being pursued by police authorities. Judgment was entered upon a verdict against three named defendants in the sum of $20,000 and from that judgment Joe Moore (Moore) has appealed. We affirm.

The jury could have found these facts: The accident occurred on Sunday, July 2, 1972, at about 5:00 p. m. on Interstate Highway 55 near its intersection with Missouri Highway 162 in New Madrid County near Portageville, Missouri. Highway 1-55 runs generally in a north-south direction, while Highway 162 runs generally east-west and overpasses 1-55. Just south of the Highway 162 overpass a ramp leads from the east side of the northbound lanes of 1-55, up to the south side of Highway 162, and immediately north thereof a ramp leads down from 162 to the easterly side of the northbound lanes of 1-55. At that location 1-55 is a four lane highway with the northbound and southbound lanes separated by a grass median. The traffic lanes are 12 feet wide with nine foot asphalt shoulders. At the time of the accident the speed limit was seventy miles per hour and a mist caused the highway to be wet. The northbound lanes of 1-55 will be referred to as the right and left lanes for northbound travelers.

At the time of the accident Frank was a passenger in a 1967 Ford, with three other adults and two small children, returning to St. Louis from a trip to Cleveland, Mississippi. They were preceded by a 1970 Chevrolet traveling in a northerly direction occupied by friends of Frank who had also been in Cleveland, Mississippi. Jimmy Whitehead, one of those friends, was driving the 1970 Chevrolet. These cars, traveling in tandem at approximately 50 m. p. h., were in the right lane of 1-55.

A short time before the accident defendant Cleothes Smith (Smith), a part-time deputy sheriff of Pemiscot County and a part-time policeman of Hometown, Missouri, had arrested Alex Burden (Burden) for careless driving. While Smith was making a phone call near the scene of the arrest, Burden escaped and drove north on 1-55 toward the overpass of Highway 162. Smith gave chase.

Defendant, Joe Moore, the Chief of Police of Portageville, Missouri and a deputy sheriff of Pemiscot County, was in Portageville near Highway 162 and 1-55 when he heard Smith’s radio transmission to the New Madrid Sheriff’s Office advising of the chase. Hearing Smith say that they were traveling about 120 m. p. h., Moore drove to a point north of the overpass and placed his car astride the northbound lanes of 1-55 about 20 to 25 feet north of the point where the north entry ramp from Route 162 joins the northbound lanes of 1-55. The rear portion of Moore’s car was blocking the right lane of the highway, the lane in which the 1967 Ford was traveling. Moore, who remained in the car, activated the flashing red dashboard light in the windshield of his unmarked vehicle. He did not have a description of the automobile that was being chased and did not know what kind of ear he was looking for. Before the vehicles involved in the chase came into view, Moore heard Smith’s radio transmission advising that Smith had Burden “cornered” in the right hand lane of the highway. Smith was in the left land alongside Burden. Moore then knew that “[Burden] was going to run over them people if he was going as fast as he said he was . ..” Smith did not know that .Moore had stationed his car on the highway until he saw the red light as he came within view of the interchange. There was a curve in the road to the south of the scene of the accident but a person on the highway could see at least one and one-half miles to the south from the scene.

As soon as Whitehead, who was leading in the 1970 Chevrolet, saw Moore’s car ahead of him on the highway, he slowed his car, turned on the right turn blinker and moved toward the right (east) shoulder of the road. When Whitehead had slowed to about 10-15 m. p. h. with the right front wheel on the shoulder, the Burden car struck the 1967 Ford occupied by Frank, driving it into the Whitehead car. Upon the impact of the Burden car with the 1967 Ford, the Ford exploded and burned, killing Frank and the other occupants.

Moore remained in his car at all times and did not attempt to direct the oncoming vehicles to move from the path of the chase or to direct them around his vehicle. If, on the other hand, the jury believed Moore’s or Smith’s version (which we shall presently discuss) as to Moore’s conduct in placing his car with flashing light on or near the foot of the north ramp of 162, the fact remains that Moore admitted he made no attempt to direct the oncoming vehicles from the path of the chase.

I.

For his first allegation of error defendant Moore contends that Pinkie L. Can-nada, as a parent of the deceased adult child (who left no surviving wife, minor child or children) was not the proper party to bring this action. He argues that suit should have been brought by the executor or administrator of the estate of the deceased under § 537.080(3), RSMo 1969, pursuant to the holding in Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1973). Plaintiff, on the other hand, asserts that under § 537.080(2), she is a proper party to the suit.

Through the interpretative cases, certain ambiguities of § 537.080 have been resolved. One such ambiguity is the absence of express language in the section or its subdivisions concerning the marital status or age of decedents for whose death an action may be brought. Except for the reference to unmarried minor decedents in subdivisions (2) and (3), it is not stated whether he may be a minor or one who attained his majority, or whether he may be married or on the other hand unmarried. This legislative deficiency, and it seems to be such, has been alleviated by decisions broadly construing the statute as to the classes of decedents for whose death actions may be brought. Those classes have been held to include: (A) unmarried adults, Wessels v. Gipfel, 522 S.W.2d 653 (Mo.App.1975); (B) married adults, Edmonsond v. Lakeside Hospital Ass’n, 562 S.W.2d 361 (Mo. banc 1978); Crane v. Riehn, 568 S.W.2d 525 (Mo. banc 1978); and (C) unmarried minors, Kausch v. Bishop, 568 S.W.2d 532 (Mo. banc 1978); Mitchell v. Buchheit, 559 S.W.2d 528 (Mo. banc 1977) (This class of decedents is expressly mentioned in the statute, subdivisions (2) and (3).) As to married minors, our research discloses no case where a member of this class of decedents has been involved, but it seems inconceivable that such class is not within the purview of § 537.080 as a part of the legislative scheme. Thus we may safely state this latter class is included with those discussed above.

Addressing now the particular question before us, we examine the statutory classes of persons entitled to bring such actions. Decedent here is an unmarried adult who left no spouse or minor children that might qualify to appropriate the action under § 537.080(1). This being so, we look to the next preferred class or classes of wrongful death claimants described in § 537.080(2). Subdivision (2) has been consistently construed to include within its terms parents (or parent) of married adult decedents whose spouse or minor children (if any) fail to appropriate the action within one year. Edmonsond v. Lakeside Hospital Ass’n; Crane v. Riehn; Kansas City Stockyards v. Clark, 536 S.W.2d 142 (Mo. banc 1976). It has also been held that the parents of an unmarried adult decedent are included within the class of those entitled to proceed under subdivision (2). Wessels v. Gipfel. Wessels involved the suit of a widowed mother for the death of her unmarried adult son. The suit was settled during the second year following the son’s death. Four months later decedent’s illegitimate daughter brought suit which the court held was barred by the one-year limitation period provided in subdivision (2) of the statute. In reaching that decision, the court considered and ruled that the presence of the dead man’s mother triggered the one-year limitation period of subdivision (2) and that as the surviving parent of the unmarried adult decedent she was a member of the class of claimants provided in the subdivision.

We turn now to appellant’s contention as to Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1968). The first three lines of subdivision (2) are as follows: “If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, . . ” This portion of the subdivision has been construed by the cases cited above to read as follows: “[If the deceased be a (1) married adult (Edmon-sond), or (2) an unmarried adult (Wessels), or (3) an unmarried minor with minor children (Kausch) and] [i]f there be no spouse or minor children or if the spouse or minor children fail to sue within one year . [intervening phrase at this point in the sentence will be discussed infra] then by the father and mother, . . . ”

The “intervening” phrase referred to above is “or if the deceased be a minor and unmarried.” This phrase must be read in connection with the words “then by the father and mother” which immediately follow it. Thus the entire phrase becomes “or if the deceased be a minor and unmarried, then by the father and mother . . . ” and it creates a separate class of decedents for whose death the parents may sue.

In contrast to this tide of judicial construction providing parents of a deceased child the clear right to proceed under subdivision (2), this Court in Fiandaca, a 1973 divisional opinion, allowed a claim to be brought by the administrator of the estate of an unmarried adult decedent who died without surviving children, but was survived by her mother. The case came to the court on appeal from a denial of defendant’s counterclaim, and that procedural posture seems to have influenced the result. The facts were these: The deceased, Wilma Sue Burns, was an unmarried adult without surviving children who lost her life in an automobile accident in which Willis Rogers was also killed. Both were occupants of the same vehicle. The administrator of the estate of Rogers sued the estate of Wilma Burns through its administrator, charging that Wilma Burns had been the driver and through her negligence Rogers was killed. On the other hand, the administrator of Wilma Burns’ estate filed a counterclaim charging that Rogers was the negligent driver and describing Wilma’s mother as beneficiary. The case turned on whether Willis Rogers or Wilma Burns was driving the automobile. Rogers’ action was settled, but the administrator of the Wilma Burns estate continued with the counterclaim for Wilma’s death. In the trial on that counterclaim, the court directed a verdict against the administrator of Wilma’s estate, holding that he was not a proper party to bring the action — the action could only be brought by Wilma’s mother as her survivor. This Court held that as to the estate of an unmarried adult not survived by minor children, even though survived by a parent, the administrator was a proper party to bring the action for wrongful death of the decedent. The court did not have a factual situation before it in which a parent sought to bring the action in his or her name. Nevertheless, the court stated, “The plaintiff argues that the Legislature must have intended that the surviving parent file the action for an unmarried adult as in the case at bar. In this, we disagree, . . 491 S.W.2d at 564. We have examined the rationale of the opinion in Fiandaca and conclude the first portion of subdivision (2) hereinabove discussed was simply ignored.

The opinion of the Missouri Court of Appeals in Wessels v. Gipfel, 522 S.W.2d 653 (Mo.App.1975), is in apparent conflict with the ruling of Fiandaca. There the court held that the mother was a proper party to bring the action for wrongful death of her unmarried adult son, provided there were no minor children or the action was not otherwise appropriated by a minor child during the first year following the death. We find nothing in the decisions of this Court since 1975 indicating that the finding there has been disapproved or overruled; indeed, a number of the cases hereinabove discussed have cited Gipfel as authority in other connections. They include Kansas City Stockyards, 536 S.W.2d at 144 (1976); Crane, 568 S.W.2d at 527 (1978); Kausch, 568 S.W.2d at 535 (1978); and Cobb v. State Security Ins. Co., Mo., 576 S.W.2d 726 at 735 (Mo. banc 1979). We hold that the mother of the decedent was the proper party to bring this action. To the extent that Fian-daca is contrary to this holding it should no longer be followed.

II.

Appellant Moore next contends that the court erred in giving plaintiff’s verdict directing instruction as it was not supported by the evidence. That Instruction reads:

Your verdict must be for plaintiff and against defendant Moore if you believe:
First, plaintiff was the mother of Frankie Lee Cannada, decedent, and
Second, defendant Moore, by his conduct, caused the automobile occupied by decedent, Frankie Lee Cannada, to slow in a lane reserved for moving traffic, and thereafter knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of a collision involving the automobile occupied by decedent, in time thereafter to have given direction to the operator of the vehicle occupied by decedent, Frankie Lee Cannada, in time thereafter for the operator of said vehicle to have moved the same to a position of safety, but defendant Moore failed to do so, and
Third, defendant Moore was thereby negligent, and
Fourth, such negligence directly caused or indirectly contributed to cause the death of Frankie Lee Cannada, and
Fifth, plaintiff sustained pecuniary loss.

Plaintiff chose to submit a theory requiring proof that Moore could have given direction to the operator of the 1967 Ford in time for him to have moved to a position of safety. We must determine if the instruction was supported by substantial evidence warranting such a finding by the jury. In making that determination we view the evidence in the light most favorable to plaintiff’s theory. Certa v. Associated Bldg. Center, Inc., 560 S.W.2d 593 (Mo.App.1977).

The jury could have found (1) (as Whitehead testified) that Moore stopped his vehicle near the center line with his red light flashing, blocking the northbound lanes of highway 1-55, or (2) (as Moore testified) that he stopped his vehicle at the bottom of the ramp partly on the shoulder of the east side of main travel lanes facing south with his red light flashing and thereafter turned sharply to the left, pulling up onto the ramp when he saw the cars emerge from under the overpass, or (3) (as Smith testified) that Moore’s vehicle was positioned on the concrete portion of the ramp. Defendant Moore admitted that from the position he described, he could see toward the south 55-60 feet in the easterly northbound lane and about one mile in the westerly northbound lane. Other testimony was to the effect that from Moore’s position at the time, oncoming traffic was visible from the south for 1½ miles. From a radio transmission sent by Smith, Moore knew that Smith and Burden were approaching him at very high speeds and that Smith, who was in the left lane, had Burden “cornered” or boxed in the right lane. It may reasonably be inferred that the two cars coming from Cleveland, Miss., were within Moore’s view because he was cognizant of the impending danger. Moore testified that upon hearing the radio transmission he knew that Burden was going to “run over them people” and yet he remained in his car. He failed to position himself to warn approaching traffic of the impending danger, which by his admission he knew existed. We believe that the jury could reasonably find that Moore was negligent under the circumstances in not taking proper action to direct traffic or warn users of the road in time to move to a position of safety. There was sufficient evidence of this most unusual fact situation to warrant the submission under plaintiff’s main verdict directing instruction.

III.

Moore further challenges the instruction because of the use of the word “conduct” in paragraph second. Appellant apparently contends that the word “conduct” lacks reference to any particular action of Moore; that the instruction was vague and gave the jury a “roving commission.” The challenged instruction is not in MAI. As to such instructions, Rule 70.02(e) provides that they shall be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” The requirements of this rule “are not intended to supplant the basic function of a verdict-directing instruction, which is to submit to the jury the factual questions which they must resolve.” Parker v. Stern Brothers & Co., 499 S.W.2d 397, 406 (Mo.1973).

The plaintiff in submitting her case recognized that an essential element of her submission was the “conduct” on the part of Moore which “caused the automobile occupied by [Frank] to slow in a lane reserved for moving traffic . . ..” Though the evidence concerning the positioning of Moore’s car prior to the accident is in conflict, Moore in deposition and on trial, testified that he drove down the ramp on to the right (east) shoulder of the road, made a sharp left turn and positioned his automobile on the ramp near the shoulder of the road with most of his car on the concrete but his right front wheel was on the blacktop. (The blacktop he referred to is apparently near the point of intersection of the west line of the northbound ramp and the east line of the northbound lanes of 1-55.) He testified that he was facing south and that the red light on the dash at the windshield was operating. Defendant Smith’s version placed Moore’s car some distance north of the overpass at the bottom of the concrete portion of the north ramp apparently some distance north of and slightly east of the position described by Moore. Smith stated he could see Moore’s car from a distance of at least one-half mile to the south and that he had seen the red light flashing from a distance of two miles. Plaintiff’s witness, Whitehead, testified that Moore’s car was 20 to 25 feet north of the point where the west side of the north ramp joined the east side of the highway, and was athwart the northbound lanes of the highway. The action of Moore in positioning his car (in any of the three locations described) made its flashing red light visible for a great distance to the south and this “conduct” gave rise to the duty to warn which was described in the instruction as “to have given direction to the operator of the vehicle occupied by decedent, Frankie Lee Cannada, in time thereafter for the operator of said vehicle to have moved the same to a position of safety, but defendant Moore failed to do so, . ”

The only action of defendant Moore to which the instructional phrase “by his conduct” could refer is the positioning of his car with flashing red light in one of the three locations described above, any of which would give rise to the duty to warn. We believe the jury could not have been misled, nor can it be said that some other non-related conduct of the defendant was in any way involved or referenced by the instructions. Appellant’s contention in this regard is denied.

IV.

Defendant next contends the verdict-directing instruction improperly submitted separate theories of recovery in the conjunctive contrary to MAI 1.02. We do not agree. Plaintiff’s single theory of negligence required a finding of several facts in combination, i. e., that Moore’s action created a hazard of which he was aware and that he failed to take action that would have prevented the impending collision. The jury was required to find each element of the submission before it could find for plaintiff on the issue of liability. Such submissions are contemplated by MAI. Rooney v. Lloyd Metal Products Company, 458 S.W.2d 561, 571 (Mo.1970). See MAI 1.02, Committee’s Comment at 7 (2d ed. 1969). This contention too is denied.

We have considered other criticisms of this instruction but find them without merit.

V.

Defendant also takes issue with the admission of certain evidence concerning decedent’s future earning capacity. At the time of his death Frank Cannada, a decorated veteran of combat duty in Vietnam, was 21 years of age. He had been discharged from the Marine Corps with the rank of Corporal on June 23,1972, nine days before he died in the collision and had been earning $387.50 per month. During his service with the Marines he made an allotment to his mother; however, there was no evidence that he had applied to reenlist. Against this background plaintiff’s witness, Lt. Gary Anderson, Marine Recruiting Officer, testified without objection that decedent was eligible to reenlist and though the witness was unable to state the then earnings of a Marine Corporal, he was asked what a Sergeant would earn at that time. This objection was interposed by defense counsel, “Judge, we are getting a little speculative and I will object for that reason.” The objection was overruled and the witness testified that “[a] Sergeant with six years in Service, or with four years in Service, according to this pay scale, $457.50.” No other objection appears to this line of inquiry and on cross-examination defense counsel interrogated as to decedent’s having taken any steps to reenlist in the Marine Corps. Defendant contends the admission of the testimony concerning the $457.50 (per month) was speculative and its admission constituted prejudicial error. We do not agree for several reasons. First, defendant made no objection as to the testimony concerning decedent’s eligibility to reenlist and on cross-examination inquired what steps, if any, he had taken to do so. Second, the testimony, if speculative and thus erroneously admitted as to a Sergeant’s pay rate, is such that we are unable to say it was an error materially affecting the merits and thus it is not grounds for reversal, Rule 84.13(b), especially in view of the modest award of damages.

Finally, appellant contests the jury’s assessment of damages at $20,000 as against the weight of the evidence. Appellant forgets that “[t]he jury has an extraordinarily wide discretion in determining the amount of recovery ... in wrongful death cases.” Aubuchon v. LaPlant, 435 S.W.2d 648, 650 (Mo.1968). Appellate courts will not interfere with that discretion absent clear abuse. Domijan v. Harp, 340 S.W.2d 728 (Mo.1960).

The evidence at trial showed that Frank, the youngest of plaintiff’s children, had worked eight hours every day after school and gave his earnings to his mother. In the Marine Corps, he sent her an allotment of $60.00 per month. His death occurred within one month of his return to civilian life. Adding the 3.2 years of lost support between his death and the trial and plaintiff’s life expectancy of 14.4 years at the time of trial, plaintiff lost about 17.6 years of support from her son. When the $1900 incurred for Frank’s funeral is taken out, plaintiff was awarded $18,100 for the lost 17.6 years of support—slightly more than $1,000 per year. We do not find the jury’s award excessive.

The judgment is affirmed.

MORGAN, C. J., and DONNELLY, SEILER, SIMEONE and WELLIVER, JJ., concur.

BARDGETT, J., concurs in separate concurring opinion filed.

BARDGETT, Judge,

concurring.

I concur in the principal opinion but believe I should state that, in my opinion, under the present wrongful death act this suit could, arguably, be maintained by a personal representative for the use and benefit of the party entitled to receive the damages or, as was done in this case, by the mother of the adult unmarried deceased.

      . Section 537.080(1) reads: “By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; provided, that in any such action the petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under this subdivision; and provided, further, that only one action may be brought under this subdivision against any one defendant.”

      . Section 537.080(2) reads: “If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor; or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents.”

      . There were two unusual factual features of Wessels worth noting here: (1) Decedent’s mother commenced suit less than one month following her son’s death. Decedent’s illegitimate child who sought to bring the later suit was bom six months after the commencement of the mother’s suit and the mother’s suit was settled and dismissed during the second year following the death. (2) The decedent’s illegitimate daughter’s suit was commenced four months following the dismissal of the mother’s suit and during the second year following decedent’s death. This was also during the second year of the child’s life. Notwithstanding these unique circumstances', the court held that the parent of the unmarried adult decedent had a right of action “at the termination of the ‘one year’ referred to in subsection 2 . . ” 522 S.W.2d at 656. Though the mother, apparently believing her unmarried adult son had no children, appropriated the action during the first year following his death, the court held that it was her privilege to follow it to judgment (or settle it) after the “one year had passed.” Id.

      . It should be noted that this last cited portion of subdivision (2) has been judicially expanded to read: “or if the deceased be a minor and unmarried without child or children, then by the father and mother . . . .” The emphasized words were added to the statute by the court in Kausch, 568 S.W.2d at 536.

      . The Court of Appeals posited the following proposition in this case:
      We do not believe it unreasonable or absurd to hold that, in a case such as this, the action may be brought by the surviving parents or by the administrator or executor for the benefit of the parents. Where the parents have suffered damages by reason of the death of an adult child the additional burden of opening an estate for the sole purpose of having the administrator bring the action as a trustee for the benefit of the parents places form above substance. There are instances where the administrator as the proper party would be the more convenient person to bring the action, as when an estate had been opened for other reasons. We have in mind the situation that was present in Fiandaca when the estate was opened so that the original plaintiff (Rogers) could bring an action for the wrongful act of decedent. The estate of decedent, Wilma Sue Burns, was in a position to file a counterclaim so that all issues could be disposed of in one action.

        Compare State ex rel. Zigler v. Adolf, 561 S.W.2d 691 (Mo.App.1978).


author: PER CURIAM:

text:
    Gene Allen HOOD, Jr., by next friend, Gene Allen Hood, Gene Allen Hood and Iris Hood, Plaintiffs-Appellants, v. MILLERS’ MUTUAL INSURANCE ASSOCIATION, Defendant-Respondent.
    No. 10170.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 26, 1979.
    Motion for Rehearing or Transfer to Supreme Court Denied March 7, 1979.

      Bob J. Keeter, Schroff, Keeter, Glass & Newberry, Springfield, for plaintiffs-appellants.
    James K. Prewitt and David F. Sullivan, Prewitt, Jones & Karchmer, Springfield, for defendant-respondent.
   PER CURIAM:

This is an equitable garnishment action by which the plaintiffs seek to satisfy a judgment under the liability coverage of an automobile insurance policy. The insurer, in effect, admitted the policy was in force, but denied coverage because the automobile described in the policy had been changed from a 1959 Pontiac (the automobile involved in the accident which resulted in the judgment) to a 1964 Buick. The trial court found such change had been made and that the policy provided no coverage.

The case involves a factual dispute concerning the date the named insured contacted the agent and requested the change. Upon the resolution of that question unfavorably to the plaintiffs, there is presented the question of the effect of that request and the agent’s assent thereto.

The policy was issued through agent Robert Bishop for an initial six-month policy period September 9, 1970, to March 9, 1971. The named insured was Larry E. Young-blood. The initial described automobile was a 1969 Ford. Some time before the incident in question the described automobile was changed to the Pontiac. The effectiveness of this prior change is not questioned.

In addition to the Pontiac, Youngblood owned a 1964 Buick. The date he acquired this Buick is not shown in evidence. The Buick had not been driveable. The Buick was in the process of repair and although it is not clear those repairs were completed, Youngblood determined to sell the Pontiac.

On November 9, 1972, Jack E. Freitag and son, J. Edward Freitag, went to Young-blood’s to buy the Pontiac. They tried it out and found it satisfactory. Youngblood “sold” the Pontiac to Jack E. Freitag for $100.00. A check was given. Youngblood signed the title in blank and gave it to Jack E. Freitag. Youngblood’s signature was not “notarized”. J. Edward Freitag drove away in the Pontiac. Youngblood’s signature was notarized and blanks in the assignment were completed January 3, 1973.

After the sale, on a date which was disputed, at about 8:30 a. m. Youngblood called agent Bishop. Youngblood testified he told him he wanted the insurance transferred from the Pontiac to the Buick immediately and Bishop replied, “you’re covered”. Bishop testified he could not recall the exact language Youngblood used, he assumed Youngblood said he wanted coverage transferred and that is what Bishop did, effective November 10.

While talking with Youngblood, agent Bishop took a form provided by defendant for making changes in policies and completed it in respect to the requested change. In the upper right hand corner of this form there is a rectangle “Requested By” with boxes to check: phone, interview, insured and other. Phone was checked. That portion headed “Change in cars” was completed: Eliminate 59 Pont., “Has been sold” was checked. It was further completed, “Add” 1964 Buick, giving a motor number.

The form has blanks for dates in two places; following “Effective Date” and following the words “This ear has been sold”. Both the original (which was sent to the insurer) and copy (which was kept by the agent) of this form were in evidence. The dates originally inserted in these two spaces were: 11-11-72. They had been altered by writing over the fourth number 1 to read: 11-10-72. The space alongside the first date calling for the time to be inserted was left blank. By deposition seven days before trial, plaintiffs’ expert witness Craig testified the form had been altered.

Youngblood testified the call was made November 10. Bishop testified he did not work too often on Saturdays except to open his mail and then go home. (November 11, 1972, was a Saturday). He stated the call was made and the form completed November 10. He assumed the alteration resulted from the fact he looked at the calendar wrong, first wrote “11” then changed it as indicated to “10”.

Youngblood testified he thought he put the check in the bank the day he got it. On the back of the check the unexplained dates November 10,1972, and November 11,1972, are stamped. Freitag told Youngblood of the accident November 11 and Youngblood reported the accident to Bishop on November 11 or 13. Bishop or the home office referred the matter to General Adjustment Bureau for investigation.

Bishop also assumed that he mailed the original of the form the evening of November 10. The original bears the handwritten inscription “OK, KB, 11-16-72”. Karen Boedeker was on that date an employee in the home office of the insurer. A copy of a formal endorsement was received by Bishop. In substance it states “it is agreed” that the policy is amended to cover the Buick. The apparent date printed at the lower left is 11/21. The space for the signature of an authorized representative is blank. The endorsement is declared to be effective November 10, 1972. Youngblood said he did not receive a copy of the endorsement.

The evidence on the scope of Bishop’s agency is confined to his testimony. He testified: He represented no other company; he did not have a general agency agreement with defendant; he did have an employee contract which guaranteed him so much per month, plus commissions. He stated he had authority to bind coverage and to make changes in coverage without contacting the home office.

On November 10, 1972, between 3:00 and 4:00 p. m. J. Edward Freitag, driving the Pontiac, was in an accident with an automobile driven by Gene Allen Hood, Jr. The judgment which the plaintiffs seek to collect resulted from this accident.

The trial court made findings of fact and conclusions of law including the following:

2. That at approximately 8:30 A.M. on November 10, 1972, Larry Youngblood phoned Bob Bishop, General Agent for Millers’ Mutual Insurance Association, and changed his insurance coverage effective immediately.
6. That the Change Request was originally dated November 11, 1972, because Bob Bishop misread a calendar and changed immediately to November 10, 1972, which change occurred at approximately 8:30 A.M. and before the said accident.
CONCLUSIONS OF LAW
1. That the insurance coverage was transferred from the 1959 Pontiac to a 1964 Buick prior to the accident and that Defendant Millers’ Mutual Insurance Association had no insurance coverage on the 1959 automobile at the time of the accident.

Plaintiffs urge this court to find that the telephone transaction between Youngblood and Bishop occurred on November 11, 1972, instead of at 8:30 a. m., November 10, 1972. We can appreciate the suspicions aroused in the plaintiffs and their vigorous efforts to prove this to be true. However, “the . . . judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence . . .” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We are further enjoined to give deference to the determination of the trial court concerning the credibility of witnesses. The basis of this rule of deference has never been more clearly and eloquently expressed than by the late Judge Ruark, speaking for this court, when he said:

This rule is not an artificial one created simply to divide responsibility. The reason lies in the fact that the trial court sees and appraises the witnesses in person. Before him are all of the nuances, the thousand and one things which speak only to the ear and eye. Truth in a courtroom is a vibrant, moving, beckoning thing, frequently whispering, occasionally shouting, and sometimes silently signaling. But truth pressed in by the cold sheets of a sterile record may become a pallid, shapeless thing, sometimes indistinct because covered by a blanket of printed contradictions. We defer to the judgment of the trial court in respect to credibility simply because he is in a better position to judge it. In E_ v. G_, 317 S.W.2d 462, 467 (Mo.App.1958).

The trial court expressly found this telephone transaction took place at 8:30 a. m. on November 10, 1972, before the automobile accident on that day. We defer to that finding.

The plaintiffs assert that J. Edward Frei-tag was an “omnibus insured” under the policy. By that policy an insured is defined: “(a) with respect to an owned automobile, (1) the named insured, (2) any other person using such automobile with the permission of the named insured . . .”

Since the title to the Pontiac was delivered to J. Edward Freitag, in blank, with Youngblood’s signature not notarized, for most considerations the automobile was yet owned by Youngblood. Under the circumstances, J. Edward Freitag was using an automobile owned by Youngblood with the permission of Youngblood. State Farm Mutual Auto Ins. Co. v. MFA Mut. Ins. Co., 485 S.W.2d 397 (Mo. banc 1972); Greer v. Zurich Insurance Company, 441 S.W.2d 15 (Mo.1969).

But, because such ownership was yet vested in Youngblood it does not necessarily follow that the Pontiac was an “owned automobile” within the meaning of the policy. The policy defines an owned automobile as:

(a) [an] . automobile . described in this policy . . ., (b) [an] automobile . . . ownership of which is acquired by the named insured during the policy period, provided: (1) it replaces an owned automobile . ; or (2) the company insures all automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days thereafter of his election to make this . . . policy applicable to such automobile ., (c) a temporary substitute automobile,

National Indemnity Company v. Giampapa, 65 Wash.2d 627, 399 P.2d 81, (banc 1965) involved a policy provision for automatic insurance or replacement somewhat different from the provision in defendant’s policy. In construing that policy the court held the completion of repairs on a previously owned automobile the equivalent of acquisition of ownership and that the repaired automobile was a replacement automobile. The defendant cites this case and asserts that Youngblood’s call to agent Bishop was a signal of the completion of repairs to the Buick and his determination to replace the Pontiac. Defendant then says upon the replacement coverage being applicable to the Buick, coverage upon the Pontiac automatically terminated, citing Beck Motors, Inc. v. Federal Mutual Insurance Co., 443 S.W.2d 200 (Mo.App.1969); Missouri Managerial Corporation v. Pasquelino, 323 S.W.2d 244 (Mo.App.1959); National Indemnity Company v. Aanenson, 264 F.Supp. 408 (D.C.Minn.1967). As we find defendant’s alternate argument of modification to be sound, the questions raised by the theory set forth above need not be decided.

The determinative question is whether or not at the time of the accident the Pontiac was the described automobile. It was before 8:30 a. m. on November 10,1972. If it was not thereafter, it was because the declarations of the policy had been modified to provide otherwise. So, the question may be further refined: did Youngblood and agent Bishop at that time orally modify those declarations to cause the Buick to be the described automobile in the place of the Pontiac?

The plaintiffs urge that it was the understanding of the parties that Young-blood was merely requesting a change which would have to be made effective at the home office. In doing so they place emphasis on the language of the form used by Bishop in recording the information. They seize upon the words “Requested by”, located in the described box, as indicative of that understanding. We do not so construe the form. These words refer to the person making the request and manner in which it was made. The form can be more appropriately construed as a means of transmitting to the company information of an agreed upon modification so that records may be appropriately changed and a formal endorsement issued. This is clearly indicated by the blank for inserting the effective date.

From the evidence, the trial court could reasonably find that it was the intent and oral agreement of Youngblood and Bishop that the policy be modified at the time of their conversation. Unless there is some legal impediment this modification must be given effect.

The fact the modification was oral is not a bar. Oral binders and modifications are recognized. Chailland v. M. F. A. Mutual Insurance Co., 375 S.W.2d 78 (Mo. banc 1964); Morris v. Reed, 510 S.W.2d 234 (Mo.App.1974).

Of course, the effectiveness of the oral modification is dependent on the authority of agent Bishop, actual or implied. Many discussions on this point center on a determination of whether an agent is a “general agent” or “soliciting agent”. While such terminology may be useful shorthand expressions, such appellations are not decisive. In reality, the analysis is whether or not the agent, regardless of his designation, had authority, actual or implied, to bind the company in respect to the particular transaction in question.

The scope of an agent’s authority may be established by testimony of the agent. 3 Am.Jur.2d, Agency, § 353 at p. 711; Southwestern Bell Tel. Co. v. Roussin, 534 S.W.2d 273 (Mo.App.1976). The unob-jected to and undisputed testimony of Bishop was that he was authorized to make the modification effective immediately. His authority is further supported by the form supplied by the company containing a blank for the insertion of the effective date and the subsequently issued declaration effective on the designated date. Travelers Indemnity Company v. Beaty, 523 S.W.2d 534 (Mo.App.1975); Baker v. St. Paul Fire & Marine Insurance Company, 427 S.W.2d 281 (Mo.App.1968).

Plaintiffs assert the oral modification was ineffective because of condition 15 of the policy, which reads as follows:

15. Changes: Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy.

We do not necessarily construe this condition to refer to items on the declarations such as the named insured, described automobile or limits of coverage. This need not be decided as it is well established that such a condition does not bar a modification by an agent acting within the scope of his actual or implied authority. Bergerson v. General Ins. Co. of America, 232 Mo.App. 549, 105 S.W.2d 1015 (1937); Kratchman v. North British & Mercantile Ins. Co., 240 Mo.App. 297, 203 S.W.2d 483 (1947); Automobile Underwriters Corporation v. Graves, 489 F.2d 625 (8th Cir. 1973); 43 Am.Jur.2d, Insurance, § 353 at p. 402; 44 C.J.S. Insurance § 281 at p. 1120. The rationale of this rule has been expressed:

In so far as such provisions purport to limit the insurance company itself from subsequently modifying its contract, they are invalid. A company cannot, by contract, disable itself from subsequently modifying its contract or prevent its subsequent conduct from having the effect the law says that it shall have. Coletta v. Ohio Cas. Ins. Co., 96 Ohio App. 70, 121 N.E.2d 148, 154 (1953).

Cases cited by plaintiffs, American Family Mutual Insurance Company v. Bach, 471 S.W.2d 474 (Mo.1971); Farmers Mutual Hail Insurance Company v. Minton, 279 S.W.2d 523 (Mo.App.1955); and Cole v. Kansas City Fire & Marine Ins., 254 S.W.2d 304 (Mo.App.1953) are not controlling because, among other reasons, in those cases there was no evidence that the agent was authorized to make the modifications under consideration.

The trial court concluded that the declarations were amended to provide the Buick was the described automobile in place of the Pontiac. In so doing it did not erroneously declare or misapply the law. The judgment is affirmed.

All concur.


author: BILLINGS, Presiding Judge.

text:
    In the Matter of C_ W_ B_, a minor. M_ C_ B_, Petitioner, v. V_ T_, E_ D_, and W_ D_, Respondents.
    No. 10768.
    Missouri Court of Appeals, Southern District, Division Two.
    March 5, 1979.

      Dennis M. Schaumann, Kuelker, Gates & Schaumann, St. Louis, for petitioner.

      G. H. Terando, Little, Million & Terando, Poplar Bluff, for respondents.
   BILLINGS, Presiding Judge.

In this original habeas corpus proceeding we appointed the Honorable Elvis A. Mooney as Master, pursuant to Rule 68.03, V.A. M.R., to conduct an evidentiary hearing and make findings of fact and conclusions of law and recommendation. The Master’s report was filed herein October 10, 1978, and no exceptions were filed thereto. Thereafter, on waiver of filing briefs and oral argument by the parties, this Court, on its own motion, remanded the matter to the Master for more specific findings of fact and conclusions of law. The revised report of the Master has now been filed with us.

In this state of the record, the Master’s report is to be accorded the weight and deference which would be given to a court-tried case by a reviewing court. Both the law and the evidence should be reviewed as in suits of an equitable nature with regard given to the opportunity of the Master to have viewed and judged the credibility of the witnesses. Matter of W_ K_ M_, 537 S.W.2d 183 (Mo.App.1976).

We have fully reviewed the record in this case and it is the judgment of this Court that the Master’s report, which follows, is fully supported by both the law and the evidence and reaches the proper result in these proceedings, and with minor changes is adopted as the opinion of this Court.

“REPORT OF MASTER

The series of events occurred in chronological order as follows: The petitioner, M_ C_ B_, and C_ S_T_were married to each other on December 21,1974; the subject of this cause, C_W_B_, was born to C_ S_ B_ on May 15, 1975. On December 29, 1975, C_ S_B_filed her petition for Dissolution of Marriage in the Circuit Court of Butler County, Missouri, alleging that C_ S_ B_ and M_ C_ B_ separated on September 27, 1975. The action for Dissolution of Marriage was pending when C-S_B_was killed in an automobile accident October 24, 1976.

On the 29th day of October, 1976, M_C_B_filed his petition for Writ of Habeas Corpus in the Circuit Court of Butler County, Missouri, wherein it is alleged that the custody of V-T_, the maternal grandmother, W_ D_ and E_ D_, the maternal great-grandparents, of C_W_B_to be unlawful. The cause was heard by the Honorable Rex A. Henson, Judge, on the 8th day of November, 1976; and thereafter on March 14, 1977 the Court entered its order vesting custody of the minor child in the grandmother and the great-grandparents, the Court finding that ‘M- C-B_, the natural father of said minor child, is not a fit and proper person to have the care and custody of the said minor child and that the said M-C-B-has not heretofore during the lifetime of said minor child, which was born May 15, 1975, supported or attended to said child in any fashion and has therefore previously neglected and abandoned the said minor child for a period of more than one year before the institution of these proceedings.’

On August 9, 1977 petitioner filed his petition for Writ of Habeas Corpus in the Missouri Court of Appeals, Springfield District; the Return to Writ of Habeas Corpus was filed August 10, 1977. On August 26, 1977, Elvis A. Mooney was appointed Master to take and report evidence and make findings of fact and conclusions of law.

An evidentiary hearing was held on November 18, 1977, at Bloomfield, Missouri, with all parties present and participating. By agreement, the transcript of the Habeas Corpus Case No. C-4384-76, in the Circuit Court of Butler County, Missouri, was admitted in evidence. After the evidence had been adduced, the parties and the attorneys requested that the cause be continued until one or all parties requested a continuation of the hearing. The cause was continued. On September 15, 1978, having received a request to continue the hearing, the cause again came on for hearing with all parties participating. At the conclusion of the hearing the cause was taken under advisement.

FINDINGS OF FACT

1. The subject of this proceeding, C_W- B_, was born May 15,1975. He is a well-behaved child, neatly dressed and cleanly groomed. Obviously, he is receiving excellent care.

2. Soon after his birth the minor child developed medical problems which required expenditures of large sums of money; all of such medical expenses were paid by the maternal grandmother without any offer of assistance from the petitioner.

3. V- T_, the maternal grandmother of C_W_B_, and the maternal great-grandparents, W_ D_ and E_ D_, are persons of good character, with high moral principles and religious convictions. Each and all of said persons are fit and proper persons to have and to exercise the care, control and custody of this minor child.

4. The homes and dwellings of V_ T_, W_ D_ and E_ D-, and the surrounding community is a desirable location in which to rear a minor child.

5. The minor child has been afflicted with intestinal blockage, nervous irregularity and dental problems, requiring treatment in the Cardinal Glennon Hospital in St. Louis and at other treatment centers; all of the expenses of such treatment were borne by V_T_and her parents. The petitioner made no contribution to the payment of these expenses; he made no inquiry concerning said expenses and made no offer to contribute.

6. The minor child’s health, although improved, continues to present a sensitive problem, requiring continuing care and expense.

7. The petitioner is not the natural father of C_ W_ B_; this fact was acknowledged by the petitioner.

8. The petitioner, twenty-four (24) years of age, is a healthy and intelligent young man, unsettled, irresponsible, self-centered, uncooperative and with past instances of excessive use of intoxicants; he is not a fit and proper person to have and to exercise the care, control and custody of a minor child.

9. Petitioner does not have a suitable home for the minor child; and the minor child would necessarily be left with other persons for long periods of time, including entering a day care center located away from the home of petitioner.

10. During the period of time, from the separation of petitioner and the minor child’s mother, September 27, 1975, until the mother’s death, October 24, 1976, the petitioner failed to contribute anything to the support of the minor child; the petitioner’s reason for such failure to contribute was, ‘because they did not let me see my son more often.’

11. The petitioner, for longer than one year, abandoned the minor child; during such period of time the petitioner made no material contribution to said child’s support; and petitioner indicated that he felt no duty to provide for the child while said child was not in his care and custody.

12. During the time the petitioner and the child’s mother were living together, they were partially supported by tax moneys in the form of welfare payments and food stamps. During the separation of the parties and before the death of the mother, she subsisted partially on welfare payments.

13. The petitioner frequently makes overnight visits with various women to whom he is not married, constituting a disregard for moral standards; petitioner denied that such overnight visits aggregated half of his nights. While this conduct has not been done in the presence of the minor child, it establishes the moral level of petitioner’s life-style and therefore becomes indicative of the atmosphere and circumstances to which the minor child might become subjected if placed in the custody of the petitioner.

14. The life-style and routine living habits of the petitioner are less than stable; he is single, living alone in an apartment in the basement of his parent’s home; much of the time he is away from home overnight; he lacks the maturity to assume the care of a minor child; and he has demonstrated such frustration as to ‘walk away’ from friend and home for sufficient time to warrant the issuance of a missing person bulletin by the police.

15. Considering all of the evidence, resolving doubtful and evenly balanced issues in favor of the petitioner, the undersigned finds that the preponderance of the evidence shows that the petitioner is not a fit and proper person to have the care, custody and control of C_W_B_ The welfare of C_W_B_ will be better served by his remand to the care, custody and control of V_ T_, W_ D_ and E_ D_

CONCLUSIONS OF LAW

1. This cause for a Writ of Habeas Corpus is a proper cause to come before the Missouri Court of Appeals, Southern District, in the exercise of said Court’s original jurisdiction. The Constitution of the State of Missouri, Article V, Section 4; Ex parte McCarter, 434 S.W.2d 14 (Mo.App.1968).

2. The petitioner, although not the natural father of the minor child, is the ‘legal’ father for the reason that the child was born while petitioner and the child’s mother were husband and wife. In considering the right to custody herein, the petitioner is regarded as the parent of C- W- B_; and the law raises the presumption, absent proof to the contrary, that the best interest of a minor child is best served by the vesting of custody in the parent. State ex rel. White v. Swink, 256 S.W.2d 825 (Mo.App.1953); Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949 (1945); McDevitt v. Morrison, 180 S.W.2d 608 (Mo.App.1944); State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140 (1917); Weir v. Morley, 99 Mo. 484, 12 S.W. 798 (1890).

3. The superior right of a parent to the custody of his minor child, as against third persons, vanishes whenever it is established that the parent is an unfit person or is unable to care properly for said minor child. G.C.J. v. G.G., 510 S.W.2d 193 (Mo.App.1974); In re Richardet, 280 S.W.2d 466 (Mo.App.1955); In re Cole, 274 S.W.2d 601 (Mo.App.1955); Ex parte Kaufman, 262 S.W.2d 56 (Mo.App.1953); Daugherty v. Nelson, 241 Mo.App. 121, 234 S.W.2d 353 (1950).

Petitioner’s failure to offer any support to the child for longer than one year, his irresponsible disposition toward the child, his irregular habits and life-style, his record of excessive use of intoxicants and the absence of any suitable home environment for the child are sufficient to overcome the presumption that custody should be vested in petitioner for the reason that petitioner is the child’s parent. In this case the preferential rights of a parent vanish because the welfare of the child will be better served if petitioner is denied custody.

4. The determination of the issue of the custody of a minor child must be based on existing conditions; however, past conditions, conduct and attitudes which col- or, indicate, clarify or cast light upon conditions as they now exist constitute the larger concept of the term ‘present condition’. Ex parte Ray, 573 S.W.2d 152 (Mo.App.1978); G.C.J. v. G.G., supra; In re Richardet, supra; Ex parte De Castro, supra; In re Cole, supra.

Petitioner exhibited a belligerent attitude regarding any mention of his excessive consumption of intoxicants in the past; and he affirmed his present use of intoxicants affirming that his current indulgence is not excessive; his long abandonment of the child he justified because he had been denied custody; no attempt was made to justify his frequent overnight visits in the homes of various women, except to state that if he had the child he would be at home with the child; his attempt to prevent the proceeds of an insurance policy, obtained by V_T_on the life of the child’s mother, being used to defray the funeral expenses remained unexplained; and the necessity of Court action to so apply the insurance benefits exemplifies this young man’s inability to distinguish between his selfish interests and the rights of others; and his knowledge that he is not the natural father of the child raises the expectation that this fact could enure to the child’s disadvantage if placed under his jurisdiction. Taken as a whole, the past activities of the petitioner gives little, or no, hope that his future performance will be responsible and in the child’s best interest.

5. The welfare of the minor child is the first and paramount consideration of the Court; and all other rights and relationships must give way to whatever is established to be in the best interest of the child. G.C.J. v. G.G., supra; Stricklin v. Richters, 256 S.W.2d 53 (Mo.App.1953); Armstrong v. Armstrong, 185 S.W.2d 845 (Mo.App.1945).

The care and attention freely supplied by the respondents, the remarkable condition of the child after all of his medical problems, the desirability of his present surroundings, the financial stability of the respondents, together with their considerable expenditures in the past for the child’s care and treatment, the religious atmosphere of the respondents’ home, and the twenty-four hour care, supervision and attention to the child by the respondents, present overwhelming proof that the best interest of the child is served by his remand to the respondents; and the absence of most of the above benefits in the petitioner’s environment, together with the trauma to be expected if the child is removed from his customary surroundings and transplanted to a new and inadequate environment, conclusively establishes that this child, with precarious health, should not be removed from his present home and away from those people who have nurtured him through exceedingly troubled times, and vested in petitioner, who ignored him during most of his life.

6. The burden of proof of petitioner’s unfitness rests upon the respondents. Cox v. Carapella, 246 S.W.2d 513 (Mo.App.1952); Williams v. Williams, 240 Mo.App. 336, 205 S.W.2d 949 (1947).

This burden has been conclusively satisfied by the respondents; as a matter of fact, the admissions of the petitioner seem sufficient to show his unfitness without other evidence.

7. Pursuant to the provisions of Section 211.477, V.A.M.S. Laws 1978, the Juvenile Division of the Circuit Court, acting on the petition filed by the Juvenile Officer, may terminate parental rights if the following conduct of the parent is found [§ 211.447, subd. 2(2)(a), par. (b), V.A.M.S.]:

‘b. The parent has, without good cause, left the child without any provision for support and without any communication or visitation from the parent. Evidence that the parent has acted to support, to communicate with or to visit the child during the period may be disregarded if such acts of the parent appear to have been merely a token effort; ’

The petitioner’s failure to support falls within the conduct defined by this section of Missouri Law. The standard promulgated for the consideration of the Court in deciding a case for the termination of parental rights, while perhaps not directly binding on this Court in this Habeas Corpus case, would appear to fix a standard of conduct required of a parent before custody be vested in such parent.

It is suggested that custody of C-W_ B_, the minor child, should not be divested from persons who have supplied care and support to the child during the period of default by the parent; and a parent, clearly within the provisions of this section, should not be awarded custody in this Habeas Corpus case when his conduct justifies the termination of parental rights under the provisions of this section.

CONCLUSION

The Master suggests and recommends that the minor child, C- WB._, be remanded to the custody of the respondents, V_ T_, W_ D_ and E_ D_; and that the costs be assessed against the petitioner.”

In accordance with the foregoing, it is the decree and mandate of this Court that the care and custody of C_ W_ B-, a minor, be, and hereby is, remanded to his maternal grandmother V_ T_ and maternal great-grandparents W_ D_ and E-D-; that the costs of these proceedings be, and hereby are, taxed against petitioner M_ C_ B_

HOGAN and TITUS, JJ., concur.