author: PUDLOWSKI, Judge.

text:
    STATE of Missouri ex rel. Ray BERNSEN, Appellant, v. CITY OF FLORISSANT et al., Respondents.
    No. 40287.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 25, 1979.

      Michael J. McAvoy, Wallach & McAvoy, Fenton, for appellant.
    V. Jack Muehlenkamp, Dellwood, for respondents.
   PUDLOWSKI, Judge.

Appeal from the St. Louis County Circuit Court affirming the action of the Personnel Commission of the City of Florissant (hereinafter referred to as the Commission) which dismissed appellant from the City of Florissant Police Department (hereinafter referred to as the Department).

The pertinent facts gleaned from the record reveal that appellant, on or about August 10, 1977, was suspended from the Department. Until dismissed, appellant had served 12 years as a police officer. Appellant’s dismissal was precipitated when a female prisoner, who was confined in the Department’s jail and who has a long history of arrests and convictions, accused appellant of coercing her to perform an act of oral sodomy upon the appellant. In due course the Department’s Chief of Police weis advised of the prisoner’s allegation against appellant. The Chief ordered a superior ranking officer, a Major, to investigate the incident and to file a full written report of his investigation. On August 8, 1977, the Chief ordered appellant to undergo a polygraph examination. Appellant appeared at the predesignated place for the test and was apparently prepared to take the polygraph examination but, at the last moment appellant refused to subject himself to the test. Later, the Major completed his investigation and filed a report of his findings. Further, the Major conferred with the St. Louis County Prosecuting Attorney’s Office and informed its Warrant Office of the alleged incident. After being informed that appellant refused to undergo the polygraph examination the Chief again requested appellant to take the test. After appellant refused to undergo the polygraph examination for a second time he was discharged from the Department. Subsequently, the matter was brought to the Commission which held an evidentiary hearing and ordered appellant dismissed from the Department. Appeals to the circuit court and this court followed.

Appellant’s first two assignments of error fail because they do not comply with Rule 84.04(d). Appellant has failed to comply with this rule because he did not specifically allege in his brief wherein and why the trial court erred. Rule 84.04(d) requires points on appeal to be specific and does not obligate an appellate court to search the record to establish wherein and why the complained of ruling is erroneous. Barber v. M.F.A. Milling Co., 536 S.W.2d 208, 209-210 (Mo.App.1976); Thummel v. King, 570 S.W.2d 679, 685 (Mo.banc 1978). See also Weier & Fairbank, Why Write a Defective Brief? 33 J.M.B. 79, 88-91 (1977). We decline appellant’s invitation to engage in a hunting expedition to determine wherein and why the trial court erred.

In his third point on appeal appellant argues that the decision of the Commission should be set aside because it was not supported by competent and substantial evidence.

Unfortunately, we are unable to review appellant’s third contention because the record on appeal does not include the decision, findings of fact or conclusions of law made by the Commission. In sum, appellant has failed to provide us with an adequate record of the Commission’s actions. Rules 81.12(b), 81.14(a). Thus, we are unable to make an intelligent determination of appellant’s third point on appeal and it is hereby dismissed. Empire Gas Corp. v. Randolph, 552 S.W.2d 82 (Mo.App.1977); Adams v. American Paving and Construction Corp., 488 S.W.2d 283 (Mo.App.1972).

Ordinarily, the foregoing would conclude this appeal since it disposes of all the allegations of error raised by appellant in his brief. Johnson v. Duensing, 332 S.W.2d 950, 953 (Mo.banc 1960); Rasco v. Rasco, 447 S.W.2d 10, 15 (Mo.App.1969). However, we reverse the trial court’s judgment in the interest of justice, Rule 84.13(c), because appellant was denied due process of law. We are moved to invoke the plain error rule, Rule 84.13(c), because the Personnel Commission failed to follow the proper procedure during the hearing it held to determine appellant’s status with the Department. The transcript on appeal, although it is inadequate in many other respects, shows that at the hearing the Commission initially announced that the Department would present its evidence first; then appellant would be given an opportunity to respond and present his evidence, if any. The Department’s attorney objected and argued that appellant should present his evidence first because he had the “burden of carrying the appeal.” The Commission sustained the objection and followed the procedure recommended by the Department’s attorney. Thus, appellant had the burden of proving that his discharge was improper. Due process dictates that when the Chief of Police sought to deprive appellant of his job, the Chief should carry the burden of proving that appellant’s conduct disqualified him from holding that position. Since the Personnel Commission hearing was the first evidentiary hearing of an adversary nature we hold the Chief of Police had the burden of proof and should be required to put on his case first. Further, if the Chief has made a prima facie case the appellant should be required to go forward with his evidence. Cole v. Litz, 562 S.W.2d 795, 798-799 (Mo.App.1978); Heidebur v. Parker, 505 S.W.2d 440, 444 (Mo.App.1974). This procedure serves the interest of justice because it is only fair that the Chief should be required to prove the accusations and charges he has filed against appellant before the appellant is discharged.

The judgment is reversed and this cause is remanded to the circuit court with directions to reverse the order of the Personnel Commission of the City of Florissant and order a rehearing in accordance with this decision.

SNYDER, P. J., and SMITH, J., concur.

      . From the record we are unable to determir action against appellant. whether the Prosecutor’s Office took criminal


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    C. A. LALUMONDIER, Appellant, v. COUNTY COURT OF ST. FRANCOIS COUNTY, Missouri, et al., Respondents.
    No. 41146.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 25, 1979.
    Y. Kenneth Rohrer, Roberts, Roberts & Rohrer, Farmington, for appellant.
    Robert J. Blackwell, Flat River, for respondents.
    Gary E. Stevenson, Farmington, for County Court and Treasurer.
    Eric C. Harris, Flat River, for City of Leadwood and Village of Rivermines.
    Gary Wagner, Farmington, for Farming-ton and Elvins.
    Don E. Gillihan, Farmington, for Lead-ington.
    John M. Williams, Flat River, for Des-loge.
   REINHARD, Presiding Judge.

Plaintiff brought this declaratory judgment action seeking a definition of his rights to a sum of money which he claims he earned by performing services pursuant to private contracts with the defendants-municipal corporations. All defendants except one moved to dismiss on the grounds that plaintiff’s petition failed to state a cause of action and the trial court sustained the motions. This appeal followed.

Plaintiff had been the St. Francois County Assessor. Defendants herein are the County Court of St. Francois County, St. Francois County Treasurer and Auditor; and the seven municipalities located in St. Francois County: Farmington, Desloge, El-vins, Flat River, Leadwood, Leadington and Rivermines.

In the first three paragraphs of the petition for declaratory judgment, the plaintiff defines the legal statuses of the various defendants. Thereafter, in paragraphs four through six, plaintiff alleges that all of the municipal defendants are located within St. Francois County and that he was the former County Assessor of St. Francois County. In paragraph seven, the plaintiff states: “. . . for the years 1971, 1972, 1973, 1974 and 1975, Plaintiff pursuant to private contracts and solicitations made by municipal corporation Defendants, did prepare said Defendants’ City Tax Books pursuant to said agreements and solicitations . . . for the years stated.” Paragraph 8 reads:

That the preparation of said City Books was not a duty of the County Assessor ... . and . . . that your Plaintiff was entitled to compensation . for performing said service. Further, . . . said work was performed upon Plaintiff’s own time, not during usual business hours, that he personally employed employees to work on said books, and that no County facilities or funds were used in the preparation of said books.

In paragraph nine, plaintiff alleges that after deducting actual expenses, his work for the five year period was worth $11,-145.00. Paragraphs ten and eleven read:

10. That thereafter continuous demands and claims have been made to the proceeds of said sums received by your Plaintiff for the aforesaid described services and a judiciable [sic] controversy has arisen among the parties as to the rightful ownership of said funds and further, said Defendant County Court and said Defendant municipal corporations have been making various and sundry claims to entitlement to said funds, the exact nature of which Plaintiff does not know.
11. That in an effort to end said demands and claims being pressed upon your Plaintiff, Plaintiff tendered the sum of $11,145.00 to the Treasurer of St. Francois County, Missouri as stakeholder of said sum until legal action could be initiated and this controversy decided.

In the prayer, plaintiff requests: “the Court . . . decide . . . and determine that pursuant to the laws and statutes . . . existing in 1971 through 1975 and . . . contracts entered into by . the parties that Plaintiff is entitled to the sum [$11,145.00] . and to declare that no other party herein has any claim to said funds. . . .”

In reviewing the sufficiency of a petition to state a claim for declaratory relief, we “must construe the petition favorably to the plaintiff and accept as true all facts alleged therein.” Vorbeck v. McNeal, 560 S.W.2d 245, 249 (Mo.App.1977). Further, plaintiff must be accorded all favorable inferences which can be deduced from the petition. Id. The test is not whether plaintiff is entitled to the relief requested in the prayer, but whether he is entitled to a declaration of rights or status on the facts pleaded. Harris v. State Bank and Trust Company, 484 S.W.2d 177, 178 (Mo.1972). The petition must allege facts which show a subsisting justiciable controversy between the parties as to their respective rights and duties. Furthermore, relief by way of a judgment conclusive in character and determinative of the issues involved must be appropriate. Plaintiff must also allege that he has a legally protectable interest at stake and that the question presented for review is ripe for judicial guidance. Schmitt v. City of Hazelwood, 487 S.W.2d 882, 884 (Mo.App.1972).

Rule 87.02 provides that “Any person interested under a written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute . [or] contract . . . may have determined any question of construction or validity arising under the . . . statute [or] contract . . and obtain a declaration of rights, status or other legal relations thereunder.”

The county officials argued in the trial court and in this court that Sections 70.210 to 70.320 RSMo 1969 govern the contracts. They assert that plaintiff performed the work for the cities as assessor because said function could only be performed by an assessor and therefore under the statutes the money belongs to the county. They also contend that no justiciable controversy exists. The motions to dismiss for failure to state a cause of action filed by the various municipalities did not allege any specific grounds.

In court-tried cases the trial court’s judgment or ruling will be sustained if the result is correct, even if based upon an erroneous reason. Campbell 66 Express v. Thermal King, 563 S.W.2d 776, 778 (Mo.App.1978). Here, the trial court’s order of dismissal for failure to state a cause of action did not specify any particular ground.

Although not advanced by any of the defendants in the trial court nor on appeal, we believe that plaintiff’s petition must be dismissed because it fails to contain an allegation that the contracts were in writing. Section 432.070 RSMo 1969 provides:

No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

Section 432.070 is mandatory and is part of the substantive law; it specifically requires that contracts with municipal corporations be in writing. Therefore, in order to state a cause of action, plaintiff was required to plead the existence of a written contract in his petition. Since he failed to do so, his petition did not state a cause of action. See Likes v. City of Rolla, 184 Mo.App. 296, 167 S.W. 645 (1914); Neal v. Junior College District of East Central Missouri, 550 S.W.2d 580 (Mo.App.1977).

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . The City of Leadington filed an answer, admitting that plaintiff was entitled to the funds which it contributed. In light of defendant City of Leadington’s Answer, the court on its own motion dismissed plaintiffs case against defendant City of Leadington.


author: TURNAGE, Judge.

text:
    Efton A. STANFIELD, Appellant, v. NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, INC., et al., Respondents.
    No. KCD 29618.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      James A. Christenson, Independence, for appellant.
    Guy Farmer, Farmer, Shibley, McGuinn & Flood, Washington, D.C., Sandra L. Schermerhorn, Kansas City, for respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Efton Stanfield filed suit against the National Electrical Contractors Association, Inc., (NECA) and a number of employees of that organization. ÑECA and all the other defendants filed a motion to dismiss the petition for failure to state a claim upon which relief could be granted. The court sustained this motion and dismissed the petition. The order of dismissal did not recite that it was without prejudice and so the dismissal order was with prejudice under Rule 67.03. Roller v. Ranger Insurance Co., 569 S.W.2d 372[1, 2] (Mo.App.1978).

On this appeal Stanfield contends his petition stated a cause of action for tortious interference with his contract of employment. Reversed and remanded.

Stanfield’s petition covers twenty pages in the transcript and to say the least is not a model pleading. However, pleadings “are to be given a liberal construction, and are to be accorded their reasonable and fair intendment. A pleading is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact.” Merriman v. Caton, 395 S.W.2d 106, 109[1-3] (Mo.1965).

In essence, Stanfield pleaded that he had been employed for almost ten years as executive vice president of the Kansas City Chapter of National Electrical Contractors Association, which was a separate Missouri corporation from ÑECA. The petition alleged that all of the defendants entered into a conspiracy to have Stanfield removed from his position, and, pursuant to this conspiracy, defendant Robert L. Higgins, executive vice president of NECA, came to Kansas City and met with the board of directors of the Kansas City chapter. The petition alleged that prior to the visit by Higgins, other defendants had made derogatory statements about Stanfield because of Stan-field’s efforts in organizing an exchange club of local chapter managers across the country. The petition alleged another reason Higgins wanted to remove Stanfield was because of his ability to establish a neutral hiring hall despite the union’s desire for a hall operated by the union. Stanfield alleged that in April, 1974, the general membership of the local chapter had voted to sustain Stanfield in his position as executive vice president of the chapter. Within two or three days after this action, Higgins came to Kansas City, met with the board of directors of the local chapter, and dictated petitions for the local chapter to become a “sponsored chapter.” Various members of the chapter asked Higgins if Stanfield would remain in his position if the chapter became a “sponsored chapter” and Higgins assured them Stanfield would remain. Acting on the representation, which Higgins knew to be false, many members signed the petition.

The petition alleged that Higgins was determined to have Stanfield removed from his position because Higgins feared Stan-field represented a threat to Higgins’ position in the ÑECA. The petition alleged that Stanfield did not have a contract for a definite term of employment, but his salary had increased from $23,900 to over $30,000 per year, and that minutes of the local chapter contained agreements to pay him a pension at age 65 at the rate of 50% of the highest five years of his salary. The petition alleged that Higgins met with the board of directors of the local chapter in June, 1974, and that Higgins left the meeting three times to request Stanfield to resign. When Stanfield refused, Higgins used threatening language toward Stan-field, and later that day dictated a letter to Stanfield terminating his employment. Stanfield’s employment thereupon terminated and Stanfield turned over all property belonging to the local chapter. Later, Stanfield requested a letter of reasons for his termination and Higgins wrote the termination was because of Stanfield’s lack of understanding and suitability to manage the affairs of the association.

The petition alleged the real reason Stan-field was removed was because he constituted a threat and embarrassment to Higgins because of the establishment of the neutral hiring hall and the exchange club and for the purpose of enabling Higgins to gain control of the local chapter.

Stanfield principally urges that his petition states a cause of action for the tortious interference with his employment contract with the local chapter of NECA. The essential elements for tortious, interference of contract are quoted in Smith v. Standard Oil, Div. of Amoco Oil Co., 567 S.W.2d 412, 417[5, 6] (Mo.App.1978) as:

“1) that a contract was in existence; 2) that the defendant had knowledge of the contract; 3) that the defendant induced or caused the breach of the contract; (4) that the defendant’s acts were not justified; and 5) that the plaintiff thereby suffered damages.”

Reading the petition under the rules set out above, this court concludes the petition does state a cause of action for tortious interference with contract. In considering the essentials of that cause of action it is apparent there was a contract in existence, that Higgins and the other defendants had knowledge of Stanfield’s contract of employment with the local chapter, there was no justification for any of the defendants to interfere with the employment contract existing between Stanfield and the Kansas City chapter, and that on his termination he suffered damages. The only element which requires an examination of the pleadings to determine its existence is that which requires the defendant to have induced the breach. Here the petition alleges that Higgins became quite angry and upset with Stanfield over the establishment of a neutral hiring hall in Kansas City and in Stan-field’s activity in establishing the exchange club. The petition alleges Higgins then, in concert with the other defendants, determined to have Stanfield removed from his employment. The petition alleges Higgins came to Kansas City after the local chapter had voted its confidence in Stanfield and obtained the necessary signatures for the Kansas City chapter to become a “sponsored chapter” by use of false representations that Stanfield would remain in his position.

The petition clearly alleges that the local chapter retained an identity separate from NECA after it became a “sponsored chapter.” Although the specific powers retained by the local chapter or the powers the sponsorship conferred on Higgins is not indicated, Stanfield does allege that the board of directors of the local chapter met and that Higgins met with them. The petition does not allege what was said in the board of directors meeting attended by Higgins. However, from the effort to get Stanfield to resign, it is a fair inference that Higgins obtained some approval or authority from the board to terminate Stan-field. Thus, considering the allegations that Stanfield was fired that same day, that Higgins was determined to end Stanfield’s employment, and that Higgins was motivated by ill will and personal jealousy, the petition pleaded sufficient facts that Higgins induced the firing of Stanfield by the local chapter.

Higgins and the other defendants, in their brief, urge the petition was properly dismissed because of the absence of a conspiracy. However, it is unnecessary to decide whether or not a conspiracy has been adequately pleaded because the gist of the action is not conspiracy but the action taken pursuant to it, and even if a cause of action is not stated to show a conspiracy with resulting action, still recovery may be had against one or more defendants shown to have been guilty of a wrong. Rosen v. Alside, Inc., 248 S.W.2d 638, 643[1-5] (Mo.1952). Since a cause of action was at least pleaded against Higgins the motion should not have been sustained.

It is next contended the petition was properly dismissed because NECA took over the local chapter when the local chapter became a “sponsored chapter,” and NECA became the employer and could not interfere with its own contract. This is not what was pleaded in the petition. From the facts pleaded, the board of directors of the local chapter continued to exist and function and the clear inference is that Higgins obtained some capacity with the local chapter, but not to the exclusion of the existence of the local chapter and its continued viability as a separate entity. In any event, there is nothing to suggest that Higgins became the employer of Stanfield to the complete exclusion of the local chapter. The petition clearly stated Higgins acted only from motivations of spite and ill will. A corporate officer is privileged to induce a corporation to breach a contract so long as he acts in good faith to protect the corporation and does not act for his own personal benefit. Nola v. Merollis Chevrolet Kansas City Inc., 537 S.W.2d 627, 634[3, 4] (Mo.App.1976). Here, the petition clearly alleged the acts of Higgins were not motivated by good faith.

The final contention against a cause of action being pleaded for tortious interference with contract is that Stanfield had a contract of employment which was terminable at will. The position alleges Stanfield had a contract of employment but does not allege it was for any specified term. This meant he could be terminated at will. Maddock v. Lewis, 386 S.W.2d 406, 410[5] (Mo.1965). However, a cause of action for tortious interference with a contract, terminable at will, is recognized by the Restatement of the Law, 2d, Torts, § 766, comment g (1979). The comment states, “Until he has so terminated it, the contract is valid and subsisting, and the defendant may not improperly interfere with it.”

The fact that a contract of employment was one at will did not defeat an action for tortious interference with a contract in Tash v. Houston, 74 Mich.App. 566, 254 N.W.2d 579 (1977). This court concludes that a contract terminable at will may be the subject of a cause of action for tortious interference when the interference is alleged to have occurred while the contract was in existence.

The petition alleged a cause of action for tortious interference with contract because it invokes the required substantive principles of law. It is sufficient because it informs the defendants of what facts Stan-field will attempt to prove at trial to prove his cause of action. Scheibel v. Hillis, 531 S.W.2d 285, 290[12-14] (Mo.banc 1976); Fischer, Spuhl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Co., et al., 586 S.W.2d 310 (Mo.banc 1979) [handed down September 11, 1979]. The judgment is reversed and the cause is remanded.

All concur.


text:
    Charles M. O’RILEY and Carol J. O’Riley, Appellants, v. Forrest COFFELT, Respondent.
    No. KCD 29910.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Larry L. Zahnd, Glen A. Dietrich, Zahnd & Dietrich, Maryville, for appellants.
    Max W. Foust and Lloyd L. Messick, Morris & Foust, Kansas City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Charles O’Riley and his wife, Carol, filed suit against Forrest Coffelt for personal injuries suffered by Charles and resultant loss of services suffered by Carol. The jury found the issues in favor of Coffelt and this appeal followed.

The O’Rileys contend the court erred in giving certain instructions and in refusing to allow their counsel to pass an exhibit to the jury. Affirmed.

In November, 1975, O’Riley drove his truck to the Gendler Quarry near Graham, Missouri, to obtain a load of lime. On his arrival at the quarry, he observed a truck belonging to Coffelt, who was well known to O’Riley. O’Riley parked his truck in position to be loaded when his turn came and walked over near the Coffelt truck. O’Riley observed that Coffelt had removed a front wheel from the truck and had it on the ground. O’Riley walked to within five or ten feet of Coffelt and inquired if Cof-felt had everything he needed to fix the wheel. Coffelt asked O’Riley if he thought a new race should be put in the wheel. [A race is the outer part of the wheel bearing.] O’Riley walked to the wheel, felt inside the hub, and said that if Coffelt had a race he thought a new one should be inserted. O’Riley stated he was familiar with wheels and the way bearings fit in the race and knew the procedure necessary to remove a race so a new one could be installed. He stated he knew it was necessary to use a hammer and some sort of tool which could be used as a punch to force the race out of the wheel.

After O’Riley advised Coffelt he thought a new race should be installed, Coffelt walked a short distance to a pickup truck and obtained a hammer and a metal punch bar about 15 to 17 inches long. Coffelt returned to the wheel and leaned it against the front bumper. He then inserted the punch into the hub and started pounding on the punch with the hammer in an effort to eject the race.

O’Riley stated after Coffelt had struck a few blows the wheel started to move, so O’Riley placed his hands on the wheel to steady it. There was no evidence Coffelt requested any assistance from O’Riley. The evidence does not reveal exactly where O’Riley was standing when Coffelt began hammering the punch, but it would appear O’Riley was standing next to the wheel as he did not testify he moved prior to placing his hands on the wheel.

After O’Riley placed his hands on the wheel, Coffelt struck two or three more blows when O’Riley felt something in his eye. O’Riley released the wheel and went to the mirror on the outside of the truck to see if he could see anything in his eye. He could not, but felt there was something in it, so he left the quarry and drove to a field where his wife was driving a tractor. He told her he had something in his eye and needed to see a doctor and she drove him into town to a doctor who advised him to go on to St. Joseph to see an eye specialist. O’Riley went to St. Joseph and underwent surgery that evening for the removal of a piece of steel from his eye.

There was no dispute at the trial that O’Riley had a piece of steel in his right eye and his vision was reduced to 20/200, a level at which he could only count fingers at two to three feet, according to O’Riley.

The contested issue tried by the parties was the negligence of Coffelt and the contributory negligence of O’Riley. O’Riley first contends the court erred in giving Cof-felt’s contributory negligence instruction. This instruction read:

Your verdict must be for the defendant on the claims of both Charles M. O’Riley and Carol J. O’Riley whether or not defendant was negligent if you believe:
First, plaintiff Charles M. O’Riley in the exercise of ordinary care, could have known that there was a danger in standing close to where defendant was working; and
Second, plaintiff Charles M. O’Riley moved from a position of safety to a place where he would be in danger of being injured as a result of defendant’s work; and
Third, plaintiff Charles M. O’Riley was thereby negligent, and
Fourth, such negligence of plaintiff Charles M. O’Riley directly caused or directly contributed to cause any damage plaintiffs may have sustained.

O’Riley levels two attacks on this instruction — that it is not supported by evidence and that paragraph third does not follow MAI and was confusing to the jury.

O’Riley argues the evidence did not show that he could have known there was a danger in standing close to the point where Coffelt was hammering the punch nor was there evidence to show O’Riley moved from a position of safety to a place where he would be in danger of being injured.

“In determining whether evidence is sufficient to support the giving of a contributory negligence instruction, we consider the evidence in the light most favorable to the defendant, and we give him the benefit of all favorable inferences therefrom. We also disregard plaintiff’s evidence unless it tends to support the grounds of contributory negligence submitted in the instruction.” Peppes v. Huddleston, 533 S.W.2d 701, 703[1, 2] (Mo.App.1976). The evidence just recited shows that O’Riley was in a position of safety some five to ten feet away from Coffelt when O’Riley moved forward to touch the hub of the wheel. At this time O’Riley knew the problem was with the race containing the wheel bearings. O’Riley admitted that he knew the race had to be pounded out with tools and stated he had seen almost every conceivable tool used for this purpose. He further admitted that he knew when a metal punch was struck by a metal hammer there was a chance that a piece of metal would be dislodged and this could cause injury.

It is apparent that when O’Riley was five to ten feet away from the wheel he knew the danger involved from steel particles inherent in the method used to remove a race and knew the problem with the Coffelt wheel was the race. There is no dispute that he was in a position of safety at that time and he admittedly moved toward the wheel possessed of the ■ knowledge of the danger just described. Prom these facts the jury would be authorized to infer that O’Riley could know of the danger associated with the removal of the race from the Cof-felt wheel while in a position of safety and thereafter moved to a position immediately next to the wheel and later placed his hands on the wheel to put himself even closer to the danger arising from Coffelt pounding on the punch with a hammer. This was sufficient evidence to support the giving of the instruction.

O’Riley next contends the instruction was erroneous because in paragraph third it stated “plaintiff Charles M. O’Riley was thereby negligent.” O’Riley urges that this was confusing to the jury since “thereby negligent” was not confined to that part of the instruction describing his movement from a position of safety to one of danger. He says this instruction was ambiguous because it did not refer to either paragraph and the jury could have found against him on a finding on only one paragraph rather than considering both. It is difficult to imagine how the jury could have been misled by this instruction. However, this argument is answered in Kraus v. Auxvasse Stone & Gravel Company, 444 S.W.2d 434, 438[4] (Mo.1969). In that case the court approved an instruction identical in form to this instruction including paragraph third. The court held there was no MAI form prescribed for the instruction given and stated it “fairly and in the spirit of the rules submitted the contributory negligence of Mr. Kraus . . . .” There was no MAI form for the instruction submitted in this case and no reason is apparent to condemn the form used when that form was approved in Kraus. The instruction was supported by the evidence and fairly submitted the defense of contributory negligence.

O’Riley also questions the giving of Coffelt’s converse instruction. This instruction read:

Your verdict must be for the defendant and against both Charles M. O’Riley and Carol J. O’Riley if you do not believe that defendant was negligent.

The O’Rileys submitted their causes in identical verdict directors in the following form:

Your verdict must be for plaintiff Charles M. O’Riley if you believe:
First, defendant, either:
used a battered hammer, or
used a battered punch, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff Charles M. O’Riley sustained damage,
unless you believe plaintiff Charles M. O’Riley is not entitled to recover by reason of Instruction Number 6.

O’Riley contends the converse instruction is erroneous because the verdict directors contained multiple negligent acts in the disjunctive and under the Notes on Use under MAI 33.02(2) such instruction is not appropriate to converse multiple theories of negligence submitted in the disjunctive. O’Riley relies on Davis v. St. Louis Southwestern Railroad Co., 444 S.W.2d 485 (Mo.1969) which held the converse was required to converse all theories of negligence when submitted in the disjunctive. O’Riley argues the converse here should have conversed both theories, i. e., used a battered hammer or used a battered punch. Cof-felt’s converse instruction is modified MAI 33.02(2) which is labeled in MAI as conversing negligence. The modification consisted only in the insertion of “and against both Charles M. O’Riley and Carol J. O’Riley.” Davis does indicate that a converse to a verdict director submitting multiple theories of negligence in the disjunctive must converse each theory and a converse as to negligence only is not permitted. Davis has recently been distinguished and explained in Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291 (Mo. banc 1978) when the court held it is proper to converse only the negligence portion of the verdict director without conversing each theory submitted in the disjunctive. The court stated at 304-5:

Davis seems to require and implies that a defendant who converses the negligence paragraph of the verdict director containing disjunctive acts of negligence must also converse all disjunctive specifications. In this regard the implication is unfortunate and does not accord with MAI 33.04. The cautionary note to MAI 33.04 is applicable when the defendant elects to converse some or all of the disjunctive submissions; it is not applicable to a situation as here when the defendant elects to converse only the negligence paragraph of the verdict director. ******
Davis is not applicable to the situation here so as to invalidate a converse instruction by the defendant who elected to converse only the second paragraph of the verdict director (the negligence submission) and who did not converse the disjunctive submissions of negligence.

Even assuming without deciding that O’Riley submitted multiple negligent acts in the disjunctive, his attack upon this instruction is unavailing because of the holding in Graeff. While Graeff involved instructions under MAI 33.04, the Notes on Use under MAI 33.04 are virtually identical to those under MAI 33.02 with reference to conversing multiple theories of negligence submitted in the disjunctive. The form given in Graeff is identical to that given in this case except this case used the “if you do not believe” introduction while Graeff used the “unless you believe” introduction. Thus, there is no distinction between MAI 33.02 and MAI 33.04 so far as the attack here made is concerned. MAI 33.02(2) authorized Coffelt to converse negligence only and Graeff holds this is proper. The giving of the converse instruction was correct.

O’Riley finally contends the court erred in not allowing him to pass an itemized statement from Methodist Hospital, for O’Riley’s stay there, to the jury. The exhibit simply listed the date, itemized services and charges made. The exhibit only bore on the issue of expenses of treatment, which related to injuries. Because the only contested issue was liability, it is apparent the jury never reached the evidence of injuries or treatment. Therefore, O’Riley could not have been prejudiced by a failure to pass the exhibit to the jury, even if the failure be considered error. Jensen v. Walker, 496 S.W.2d 317, 320[2] (Mo.App.1973).

The judgment is affirmed.

All concur.


author: KENNEDY, Judge.

text:
    Christine L. YOUNG, Appellant-Respondent, v. John Lee YOUNG, II and Gay Ann Young, Respondents-Petitioners.
    No. KCD 30091.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    M. Randall Vanet, Kansas City, for appellant-respondent.

      Robert J. Harrop, Gage & Tucker, Kansas City, for respondents-petitioners.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

The case now before us involves the question of a natural mother’s willful abandonment of a boy seven years old at trial time, whose adoption is sought by the youth’s stepmother, the wife of the natural father. The natural mother, Christine, has refused to give her written consent to the adoption.

The trial court after trial found willful abandonment by the mother and found that her consent to the adoption was not required under § 453.040(4) RSMo 1978. She has appealed from that judgment.

John II and Christine, natural parents of John III, the child sought to be adopted, were divorced in December 1971. John III was then approximately one year old. Christine had had temporary custody of young John during their nine-month separation before the divorce. The divorce decree gave primary custody of the child to his father, with visitation rights to the mother. The mother thereupon surrendered custody to John II.

Christine visited young John once or twice a month until February or March, 1972. These visits were arranged by Christine’s calling John II’s mother or his brother. She had little contact, John said none, with John himself after the divorce. She never had his telephone number

John was a member of the Kansas City Police Department during the entire period beginning with the divorce and continuing to the time of the trial of the present case. He testified that it was standard procedure for police officers for security reasons to have unlisted telephone numbers, but that he could always be reached through his mother or a relative, or through the Kansas City Police Department. Evidently Christine’s only efforts to contact John were through his mother, with the results hereafter indicated.

After February or March, 1972, Christine no longer exercised her visitation rights, and at the time of trial — February 2,1978— had not seen him since that time. As an explanation for ceasing her visits, she said that it was hard for her to see John’s family, that she cried after the visits, and was emotionally unstable. At the time her visits ceased, also, she was expecting another child, who was born August 17, 1972. There had never been any refusal of her visitation rights, Christine said, but “the whole' situation was very uncomfortable for me”. The resentment toward her when she wanted to see her son was obvious. There was a great deal of animosity between her and her mother-in-law, John’s mother, when the divorce was final.

Christine moved from Kansas City to Florida in May, 1974. She called John’s mother before she left, to let him know where she was going, “maybe to see John again before I left”. John’s mother hung up on her.

Christine was back in Kansas City in August of 1974 for a three-day visit. At her request, her mother had called John’s mother with the intention of attempting to arrange a visit between Christine and young John while she was home on a three-day visit. John’s mother hung up on her.

In July of 1975 Christine was again in Kansas City during a week’s vacation. Once again she called John’s mother and once again she hung up the phone.

In December, 1976, Christine was again in Kansas City on vacation. This time she called John’s mother and asked her to have John call her. John did return her call. They arranged a meeting at a bar suggested by him, the “Streetcar Named Desire”. Christine said her reason for the meeting was to arrange to see young John. At this meeting which took place in the evening and according to Christine lasted about five hours, John asked her about her signing a consent for young John’s adoption. He had told her in their phone conversation that he wanted to discuss that subject with her, and she had contacted her attorney about it before the meeting. She would not agree to sign the consent and as they parted she said that she would think about it.

According to John’s testimony, the subject of young John was not brought up at this meeting except in connection with the consent to the adoption. He testified that Christine did not say in their phone conversation or at the meeting that she wanted to see him.

“I believe she wanted to develop some type of relationship with me,” John said.

They talked by telephone again two days later. According to Christine, they agreed that John was to bring young John to Christine’s sister’s house for a visit at 9 o’clock a. m. on a certain day. John’s version was that Christine “ordered” him to bring young John to that address at the specified time. John showed up, but without young John. He was accompanied by a process server who served upon Christine the petition and summons in the present case.

John and his present wife, petitioner Gay Ann Young, were married on August 30, 1973. Young John has lived in their home ever since their marriage. He was four or five years old before he learned that he was not Gay Ann’s natural child. John and petitioner Gay Ann have a child born of their marriage, a son named William Michael.

At the time of the trial Christine had returned to and was living in Kansas City with her daughter. She was employed as an administrative assistant to her mother in the operation of a school for retarded children and adults.

We have concluded that the trial court’s judgment is to be affirmed, for reasons hereafter set forth.

We place before us Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), under which we affirm the trial court’s judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law”. The opinion proceeds: “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree of judgment is wrong.”

The term “willful abandonment”, as used in § 453.040, is defined in In re E. C. N., 517 S.W.2d 709, 715 (Mo.App.1974), as follows: “. . . [Fjirst, a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duty of a parent; or, second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love and his protection, maintenance, and the opportunity for the display of filial affection . The abandonment must be absolute, complete and willful . . . The conduct of a parent . . . must have occurred during the year preceding the filing of the adoption petition; however . . . evidence of a parent’s conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent . . . ” See also D. G. K. v. D. G. K., 545 S.W.2d 81, 82 (Mo.App.1976).

Intent is to be gathered from the actions of the parties. In re C., C., & C., 380 S.W.2d 510, 515 (Mo.App.1964).

Christine’s actions over a period of approximately four and a half years — that is, from March, 1972, to December, 1976 — are barren of any evidence of parental interest or solicitude for young John. She ceased to exercise her visitation rights in the early spring of 1972, although apparently she had not experienced any real difficulty in securing her visitation privileges up to that time. Her May, 1974, and her July, 1975, telephone calls to her erstwhile mother-in-law, which might have led to a request to visit the child, were rebuffed, but she did not attempt to reach the child’s father by any other avenue. She did not attempt to reach him through the police department or through another relative. A brother of John, for instance, is mentioned as an intermediary while she was exercising her visitation rights before March, 1972.

Neither did she follow through in August, 1974, after her mother failed in her attempt to have a telephone conversation with John’s mother.

While it may not be of large significance, considering his tender age, Christine did not at any time during the period under consideration attempt to communicate with young John by mail or telephone, nor did she send him gifts.

The parties agree that abandonment can be repented of. Matter of K. M. B., 544 S.W.2d 590, 592-3 (Mo.App.1976); T. H. v. Ambelang, 497 S.W.2d 210, 211 (Mo.App.1973). Appellant points to the December, 1976, meetings between Christine and John as evidence, first, which gives to her earlier actions a slant away from abandonment, see D. G. K. v. D. G. K., supra at 83, and also, assuming earlier abandonment, as indicating an intention on Christine’s part to reassert her parental rights and to take up again a parental relationship with young John. Appellant does not admit that the evidence supports her abandonment of the child at any time—but says that if it should show such abandonment, then her December 1976 actions show her repentance.

The trial court did not place appellant’s construction upon her December 1976 actions. The court in its memorandum opinion said: “From the evidence, the Court gleans there was very little discussion at the bar relative to the welfare of the child. True, she asked to see the pictures of the child which is in and of itself not of sufficient importance to override her past conduct of abandonment. The same is true of the Warwick meeting.”

John testified that at the “Streetcar” meeting Christine had said nothing about wanting to see young John, and in their telephone conversation during which the meeting was arranged, she had said nothing about wanting to see the youngster. He testified: “ . . . Not one time in the phone conversation or the conversation in the bar did she want to see him, did she even mention him other than the fact that she would not consent to adopt.” When asked the reason she wanted to meet him, John replied: “I believe she wanted to develop some type of relationship with me.”

Christine testified that she had made it plain at that meeting that she did wish to see little John, and had asked John if he had any pictures (he didn’t). She also said that she had told John in the phone conversation that she wanted to see the child.

We must defer to the trial court’s choice between conflicting accounts of these conversations, which depend upon the credibility of the witnesses. Rule 73.01(3(b)); Cook v. Lodes, 560 S.W.2d 64 (Mo.App.1977).

As to Christine’s request to John—or her demand, according to John—that the child be brought to her sister’s Warwick address for a visit with her, the trial court did not believe that that single gesture was sufficiently important to indicate repentance on Christine’s part or to give a different cast to her neglect over the preceding period of years. R. F. N. v. G. R., 546 S.W.2d 510, 512 (Mo.App.1976). We find no basis for rejecting the trial court’s view of the December, 1976, meetings and conversations.

Christine attributed her long neglect of her parental rights and responsibilities to financial difficulties and to her emotional instability. She claimed upon trial to have regained her emotional health and said she was prepared to resume her role as non-custodial parent. Although her explanation may have justified her actions on moral grounds, it does not necessarily negative an intent to abandon. The evidence was for the trial court to weigh. Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 254 (Mo.1968); In re J. L. L., 402 S.W.2d 629, 633-4 (Mo.App.1966).

The court in his memorandum opinion incorrectly found that the divorce decree had given Christine primary custody and that Christine had voluntarily surrendered custody of young John to his father after the divorce. The fact was that the decree had given primary custody to the father and she surrendered the child to him in obedience to the decree. This occurred within days after the decree was granted in December, 1971. This fact does not loom large in the total picture. Had the trial court correctly found the fact, there would remain sufficient and substantial evidence to support the court’s judgment and we do not believe that the fact, incorrectly found by the court, played any decisive role in the decision.

The judgment of the trial court is affirmed.

All concur.


author: WASSERSTROM, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Robert FELLOWS, Appellant.
    No. KCD 30250.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Clifford A. Cohen, Public Defender, Kansas City, Kevin R. Locke, Gary L. Gardner, Asst. Public Defenders, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and MURPHY, Special Judges.
   WASSERSTROM, Chief Judge.

Defendant was convicted by a jury of forcible rape, robbery in the first degree, and burglary in the first degree. On this appeal, he assigns as his sole Point Relied Upon that the jury panel was improperly selected.

The record shows that the manner of jury selection permitted women the option of declining to serve. That procedure was condemned as unconstitutional in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The Attorney General, however, seeks to distinguish Duren on the ground that defendant did not develop statistical evidence of a discriminatory result in 1978, the year of trial, parallel to that for 1976 which was shown in Duren.

That attempted distinction has been rejected by this court in a series of cases, the most recent of which are State v. Donahue, 585 S.W.2d 160, 1979, and State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979). The Attorney General insists those cases were wrongly decided. We nevertheless remain of the same opinion and adhere to the view stated in the cases cited.

Reversed and remanded for new trial.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Howard B. POLLARD, Appellant.
    No. KCD 30274.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.
    Larry E. Tate, Williams, Reesman & Tate, Boonville, for appellant.
    John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge and SWOF-FORD, C. J.
   SWOFFORD, Judge.

The appellant (defendant) was tried under an information substituted for an indictment, under the Second Offender Act for the offenses of Rape (Count I); Sodomy (Count II); and Armed Criminal Action (Count III). The trial court upon stipulation by counsel found that the Second Offender Act was applicable because of defendant’s three previous felony convictions in the State of Illinois. After trial of the charges here involved before a jury, the defendant was found guilty on all three counts and was sentenced by the trial court to 25 years on Count I (Rape); 5 years on Count II (Sodomy); and 5 years on Count III (Armed Criminal Action), the sentences on Counts II and III to run concurrently with each other, but consecutively with the sentence on Count I, a total sentence of 30 years. This appeal followed.

Because of the points raised on this appeal it is not necessary to here detail the evidence in this record, except to the limited and sordid degree necessary to the resolution of those points as hereafter discussed. Suffice it here to state that it is undisputed that on July 8, 1977, the defendant was driving alone across the State of Kansas on Highway 1-70 en route from Wyoming to Ohio; that at Abilene, Kansas he picked up a young lady named Margaret Cohen and her boyfriend, Christopher Stubbins, who were hitchhiking from California to Washington, D.C.; and after a rather erratic drive across Kansas and western Missouri, punctuated by stops for food, beer and liquor for the defendant, they stopped at night at Boonville, Missouri in Cooper County where the defendant secured a room at the Rustic Acres Motel. It was in this motel room that the crimes charged against the defendant occurred according to the State’s evidence. Cohen and Stubbins testified that the defendant produced a handgun, threatened both witnesses, and performed oral sodomy and rape upon Cohen. The defendant testified in his own behalf and categorically denied the conduct charged against him. His version was that after the three arrived at the motel and had showered, he left to go to a nearby liquor store and when he returned to the room, Cohen and Stubbins were gone and he did not see them again until his arrest the next morning.

The defendant’s first allegation of error is directed to the giving of Instruction No. 7 directed to the Armed Criminal Action charge of Count III. His position is that the giving of Instruction No. 7 was error because it contained a definition of the term “rape”, the underlying felony, and that definition was couched in different terms than Instruction No. 5, the verdict director on the rape charge, and was therefore confusing, misleading, unnecessary and unduly dwells upon the crime as already set forth in Instruction No. 5.

Instruction No. 5 is model MAI-CR 6.40 and no complaint is made as to its form or content. That instruction, in pertinent part, is in the following language:

“As to Count One, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 9th day of July, 1977 * * * the defendant inserted his sexual organ to any extent into the sexual organ of Margaret Diane Cohen, and
Second, that he did so against her will and after he caused her to submit by threats which caused her to fear physical violence to herself, then you will find the defendant guilty under Count One of rape.
* * * >>

(Emphasis added)

At the time Instruction No. 7, now under attack, was given in this case, there was no MAI-CR model for an instruction on Armed Criminal Action. Instruction No. 7 read in pertinent part:

“As to Count Three, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 9th day of July, 1977, * * * the defendant committed the crime of rape as charged in Count One, and
Second, that the defendant committed that crime with the use of a dangerous or deadly weapon, namely a pistol, then you will find the defendant guilty under Count Three of armed criminal action. * * * * * *
‘Rape’ is sexual intercourse with a female against her will and after causing her to submit by threats which caused her to fear physical violence to herself.”

(Emphasis added)

The definition of “rape” clearly follows the language which is contained in the model MAI-CR 6.18 instruction covering felony murder which was the approved form for that crime, at the time of the submission of this case.

The defendant’s position in the argument portion of his brief is that the term “ * * * inserted his sexual organ to any extent into the sexual organ of Margaret Diane Cohen * * * ” as used in Instruction No. 5, and the term “sexual intercourse” as in the definition of “rape” in Instruction No. 7 constituted definitions of rape in different terms likely to confuse and mislead the jury and were “ambiguous” and “equivocal”.

The testimony of Margaret Cohen was positive and unequivocal that the defendant did in fact perform sexual intercourse and penetrated her under threats and by placing her in fear by means of a handgun. The defendant denied this also without equivocation. Thus the issue of fact for the jury was whether these acts occurred, not the nature of the acts charged.

All of the instructions must be read and construed together, State v. Tellis, 310 S.W.2d 862, 865[4] (Mo.1958), and if they properly present the law of the case when so construed, no error results. State v. Edmonson, 371 S.W.2d 273, 276[8] (Mo.1963). Instruction No. 5 and Instruction No. 7 properly presented the law on rape and armed criminal action under the evidence, and it is inconceivable that a competent jury of mature persons could be misled or confused by the terms of those instructions here under attack or prejudiced thereby. The defendant’s conclusion as to the prejudicial impact of the instructions does not provide the basis for reversal. State v. Perryman, 487 S.W.2d 515, 518[7] (Mo.1972). The cases cited by defendant have been carefully reviewed and found not to be pertinent or controlling here. Point I is ruled against the defendant.

The defendant alleges error under Point II in the trial court’s giving of Instruction No. 6, the verdict director on the charge of Sodomy (Count II). He asserts that this instruction uses terms that “are confusing, misleading and allowed the jury to speculate on what acts the instruction refers”.

Point III raised by the defendant is that “The verdict of the jury went against the greater weight of the credible evidence in this case”.

Both of these points fail to comply with Rule 84.04(d), but in the interest of final disposition of this case they will be considered and ruled together, since both in substance depend upon the same argument, State v. Joplin, 485 S.W.2d 473, 475[2] (Mo.App.1972). Defendant asserts error in both points upon the failure of proof of penetration during the sodomy charged.

Instruction No. 6 reads as follows:

“As to Count Two, if you find and believe from the evidence beyond a reasonable doubt that on or about the 9th day of July, 1977, * * * the defendant inserted his mouth or tongue within the sexual organ of Margaret Diane Cohen, then you will find the defendant guilty under Count II of sodomy.

(Emphasis added)

Both the common law and the majority rule in Missouri and other jurisdictions require that both the information or indictment and the evidence show some degree of penetration by either the penis or the mouth into a forbidden bodily cavity in order to support a conviction of sodomy. This rule is applicable to acts of cunnilingus as are involved in this case. In State v. Wellman, 253 Mo. 302, 161 S.W. 795 (1913) a conviction based upon such an act was reversed, upon other grounds. There, the information charged the defendant with having “sexual intercourse * * * with his mouth” with the pathic. Upon remand, the court directed that the information be amended to charge that the defendant was guilty of “inserting his mouth into the sexual organs and private parts” of the pathic. In State v. Pettijohn, 541 S.W.2d 74 (Mo.App.1976) this Court held that this state followed the requirement that some degree of penetration must be charged and some proof offered of penetration in a prosecution for sodomy, whether cunnilingus or fellatio. This Court ruled in Pettijohn that support for that conclusion is found in the model instruction MAI-CR 12.50 which hypothesizes the requirement of insertion and in Section 546.330 RSMo 1969 which uses the term “actual penetration”, both applicable when this case was tried.

In the case of State v. Thompson, 574 S.W.2d 432 (Mo.App.1977) the St. Louis District of this Court reached a somewhat different conclusion. In that case the court said, 1.c. 434[3]:

“Despite suggestions in other cases to the contrary, see, e. g. State v. Pettijohn, supra, we do not interpret Wellman to require allegation and proof of penetration in the prosecution of the sodomy offense of cunnilingus. Cunnilingus is defined in Webster’s Third New International Dictionary as ‘stimulation of the vulva * * * with the lips or tongue’. Because of the anatomy of the mouth and the female genitalia, we believe that any contact between the mouth or its component parts and the vulva is sufficient to constitute the offense of cunnilingus.” (First emphasis the court’s; other emphasis added)

While this Court, of course, does not agree with the Thompson court as to its conclusion that proof of penetration was not an essential element of the crime of cunnilingus by the law in Missouri as it then existed, that difference of viewpoint is unimportant for the disposition of this case.

The evidence in this case given by Margaret Cohen was as specific and convincing on this element as could ever be expected short of a parrot response that penetration had occurred. She testified on direct examination:

“Q. After he removed your jeans from you, what did he then do?
A. He said he was going to give me something that I never had before, then he opened up my legs and started licking at me.
# * * * ⅜ *
Q. After he opened your legs, what did he then do?
A. He pulled his head and he started just licking and sucking for a long time.
Q. Where was he licking and sucking?
A. On my vagina.
# * * * * *
Q. Do you have an estimation as to the period of time which he licked and sucked between your legs?
A. Ten, fifteen minutes.”

On cross-examination she again stated that when defendant had forcibly removed her blue jeans “then he started licking at my vagina and sucking at me”. Witness Stubbins corroborated the fact that defendant performed oral sex upon Cohen in his presence.

Anyone even with the most basic or rudimentary knowledge of the human anatomy “of the mouth and the female genitalia” (Thompson, supra) would reach the reasonable (and indeed, inevitable) inference and conclusion from this account of the defendant’s actions, if believed, without direct evidence that some degree of insertion or penetration by defendant’s mouth or tongue occurred during the cunnilingus. Thus, the rules of Wellman, Pettijohn or Thompson, whichever view is adopted, were satisfied. It was not error to give Instruction No. 6 and it was supported by the evidence.

Defendant’s Points II and III are ruled against him.

The judgment is affirmed.

All concur.

      . It should be noted that under Missouri’s new Criminal Code, § 566.060 and accompanying MAI-CR 20.08.1, effective 1/1/79, the requirement of insertion or penetration are omitted as an element of the offense.


author: PRITCHARD, Judge.

text:
    Kathy ATKINSON, Administratrix of the Estate of Bonnie Sue Parker, Deceased, Arthur Parker and Mildred Parker, Beverly Ann Agee, and Barbara Jean Rhodes, Appellants, v. Dr. George DASHER, Respondent.
    No. 30277.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      John K. Weilert and J. D. Williamson, Jr., Independence, for appellants.
    Robert H. Martin and Michael W. Manners, Independence, for respondent; Paden, Welch, Martin, Albano & Graeff, Independence, of counsel.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

The issue is whether respondent, tenant in common of property purchased by him and Bonnie Sue Parker, deceased, is entitled to contributions made by him in a partition suit, or whether he must accord deceased with an undivided one-half interest in fee simple of the property. The trial court awarded to appellants only the $1,000.00 contributed by Bonnie Sue, and awarded respondent an interest equivalent to the balance of the value of the property.

On August 16, 1974, Doctor Dasher and Bonnie Sue Parker signed an agreement to purchase a house and lot at 304 Locust, Lee’s Summit, Missouri, for $89,950. They were not then married, but contemplated that relationship in the future. The couple borrowed $71,950 from the Farm and Home Savings Association and executed a promissory note to repay that amount plus interest, secured by a deed of trust upon the property. It is undisputed that the parties were jointly and severally liable on that note. There was a down payment made of $20,000.00, $19,000.00 by Doctor Dasher, and $1,000.00 by Bonnie, which was required of her as “earnest money” by the relator, she being the only one able to get off work at the time to make the deposit.

The deed, October 30, 1974, ran to Doctor Dasher, a single man, and Bonnie Parker, a single woman. The law is clear that the grantees, not then being married, took title as tenants in common. Anderson v. Stacker, 317 S.W.2d 417, 421[3-5] (Mo.1958); Keller v. Porchey, 560 S.W.2d 257, 258[1, 2] (Mo.App.1978).

Doctor Dasher’s evidence showed that he had paid $42,190.27 toward the purchase price of the property; and the only evidence is that Bonnie paid $1,000.00. The parties were never married, and Bonnie’s death resulted from suicide on March 18, 1975.

The rule as to respective interests of co-tenants is generally stated at 86 C.J.S., Tenancy in Common, § 18, pp. 378-379: “Where a conveyance to two or more persons is silent as to the interest of each, their interests are presumed to be equal, but the presumption is rebuttable by evidence to the contrary, such as evidence showing the contributions of joint purchasers to have been unequal. In the absence of an agreement to the contrary, joint purchasers of an estate hold, shares therein in proportion to their contribution to the purchase price, but it has been held that proof of the fact that at the time of purchase vendees contributed unequal sums in cash is not proof that they took or intended to take in that proportion, where such payment in cash was only part of the total consideration.” [Italics added.] This concept is adopted in Anderson v. Stacker, supra, where the parties, being unmarried, purchased as “Kenneth B. Anderson and Bertha E. Anderson, his wife.” Kenneth paid the entire down payment, and both parties executed first and second deeds of trust and notes for the balance. The court quotes, page 421[3-5], “ ‘A conveyance to grantees as husband and wife, although the parties were knowingly living in meretricious relations, will, nothing being shown to warrant a different conclusion, ordinarily be construed to create a tenancy in common, and the property so conveyed will be apportioned, in partition or similar proceedings, on that basis, the apportionment not always being in equal shares but according to the proportionate contribution of each of the grantees toward the acquisition of the property.’ Annotation, 31 A.L.R.2d loc. cit. 1311.” See also, for the same result, Richardson v. Kuhlmyer, 250 S.W.2d 355 (Mo.1952); Keller v. Porchey, supra, page 258[1, 2]. See also Anno. 48 A.L.R.2d 1305, 1310, concerning the equitable right of contribution between cotenants where one pays more than his share of a debt secured by a mortgage or other lien on the common property, the underlying rationale of the Anderson case, supra, as recognized in Hahn v. Hahn, 297 S.W.2d 559 (Mo. banc 1957); Herrmann v. Scholl, 96 S.W.2d 635 (Mo.App.1936), and Funk v. Seehorn, 74 S.W. 445 (Mo.App.1903). This principle would authorize Doctor Dasher to enforce an equitable lien in the partition proceedings to the extent of his payments on the down payment, the mortgage,' insurance, taxes, and repairs made on Bonnie’s behalf, thus reducing her entitlement from one-half of the net sale proceeds upon distribution after partition was made.

The judgment of the trial court is correct, and it is affirmed.

All concur.


author: MANFORD, Judge.

text:
    ST. LUKE’S HOSPITAL OF KANSAS CITY, Respondent, v. Gerald W. MAY, Appellant.
    No. 30304.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      Robert B. Wurdack, Independence, for appellant.
    Michael R. Roser, Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from trial court judgment for monies claimed due for hospital services. Motion for new trial filed and overruled.

Review of this case is made pursuant to Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Since this was a court tried case, both the facts and law are subject to the scrutiny of this court. A brief recital of the facts is necessary for disposition of the matter.

On March 31, 1975, appellant was involved in a traffic accident. He was removed from the scene and taken to respondent hospital. It was determined appellant sustained a dislocated hip and abrasions. He remained at respondent hospital until discharged on April 27, 1975.

Appellant was contacted later about the claimed indebtedness for services in the sum of $2,885.83 and appellant refused to pay. This action followed. The petition was in multiple counts of account stated and action on account. The proceedings were initiated in the Magistrate Court, which found for appellant. An appeal was taken to the circuit court, which found for respondent. Upon the trial court’s judgment, no request was made for findings of fact or conclusions of law and there are no such findings or conclusions of record. Appellant proceeded with this direct appeal, alleging the trial court erred in permitting respondent to try a different cause of action, other than that tried before the Magistrate, in the Circuit Court. Appellant also alleged the court erred in finding that appellant promised and agreed to pay for services rendered because there was no evidence on that issue; the court erred in finding appellant received services at his special instance because there was no evidence on such issue and finally, the court erred in finding the charges for such services were fair and reasonable because of the failure of proof.

Respondent introduced various documents, including the billing for the services. Harry I. Fransen, an employee of respondent’s for some eleven years and who, at the time of trial was respondent’s accounts manager, testified. Appellant offered only respondent’s corporate certification, verified by the Secretary of State.

Subsequent to the action by the Magistrate and on the morning of trial, respondent requested and was granted leave to amend its petition to delete one paragraph thereof. This resulted in the abandonment of the claim for an account stated.

The first point of error alleged goes to the amended petition. Appellant contends the action by the trial court permitted respondent to proceed on a different cause of action. In support of this question, appellant cites McMahon v. Charles Schulze, Inc., 483 S.W.2d 666 (Mo.App.1972); Snyder v. Gericke, 101 Mo.App. 647, 74 S.W. 377 (1903); Evans v. St. Louis and San Francisco Railway Co., 67 Mo.App. 255 (1896) and § 512.280, RSMo 1969.

§ 512.280 reads as follows:

“512.280. Same cause of action to be tried in appeal cases. — The same cause of action, and no other, that was tried before the magistrate, shall be tried before the appellate court upon the appeal; provided, that new parties, plaintiff or defendant, necessary to a complete determination of the cause of action, may be added in the appellate court.”

In rebuttal of appellant’s argument that the permission of the trial court allowed respondent to amend its petition, thus violating § 512.280, respondent cites for the court § 512.300, which reads as follows:

“512.300. Statement of account amended, when. — In all cases of appeal, the bill of items of the account sued on or filed as a counterclaim or setoff, or the statement of the plaintiff’s cause of action, or of defendant’s counterclaim or setoff, or other ground of defense filed before the magistrate, may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment. Such amendment shall be allowed upon such terms as to costs as the court may deem just and proper.”

As to point one, relative to § 512.280 from appellant’s view, or § 512.300 from respondent’s point of view, neither statutory reference is dispositive of the alleged error. These pertinent statutory sections, prohibitive in nature, simply proscribe the practice that a moving party cannot gain advantage of his opponent by substitution of claims. In other words, § 512.280 prohibits trial on one claim and the substitution of another claim upon retrial. § 512.300 is prohibitive in a limited sense, but permits discretion to the trial court for amendment when justice demands it upon actions for account stated. As these statutes relate to the case at hand, neither reaches the action by the trial court and neither serves as a basis to support the allegation of error by the trial court. The simple reason is that the initial petition sounded in account stated and on account. These are separate and distinct causes of action filed against appellant to which he filed his answer.

When the court permitted the amendment, which amounted to a deletion of one cause of action, respondent, from that point on, was prohibited from pursuing that alleged cause of action. The situation would be analogous if the amendment had not been granted and the evidence simply failed to sustain the alleged cause of action. Logic mandates the posture of the respective parties on that particular issue would have remained the same.

This court is not persuaded by case authority cited by appellant. Those cases cited are clearly distinguishable. In McMahon v. Charles Schulze, Inc., supra, substitution of a claim for negligence in lieu of a claim for warranty was correctly prohibited, but that cause is not analogous to the facts of the case herein. Snyder v. Gericke, supra is clearly not controlling because it involved an action on a note by a minor, and amendment of the pleadings was not an issue. Finally, Evans v. St. Louis and San Francisco Railway Co., supra, permitted an amendment which did not change the original claim for the alleged wrongful killing of livestock. The action by the trial court did not provide for a new cause of action or the substitution of a cause of action. Such action did not misinterpret or misapply the law.

Point one is ruled against appellant. It must be so, whether the courts choose to apply § 512.300, which could be done by different construction, or by concluding from the evidence of record no substitution of a cause of action occurred. The evidence herein clearly establishes no substitution of a cause of action occurred.

Points two and three, for purposes herein, are taken up together because they address the same basic question of whether appellant promised, agreed to and at his special instance and request, received medical services from respondent.

As has been pointed out, the record reflects no request for findings of fact and conclusions of law. Thus, does this mean this court can require or is required to wander aimlessly through the seas of uncertainty in search of a conclusion? Obviously, it does not, for Rule 73.01 directs what shall be done in such an instance. For a better understanding, see S. G. Adams, etc. v. Central Hardware Co., 572 S.W.2d 625 (Mo.App.1978) wherein the court, referring to Rule 73.01, at pages 627-628 declared:

“Additionally, we are not presented here with findings of facts or conclusions of law. Neither party requested these be made by the trial court. And when an appellate court is confronted with a record in which no findings of fact of conclusions of law were filed and none were requested, all fact issues are to be deemed found in accordance with the results reached. The judgment is to be affirmed under any reasonable theory supported by the evidence. De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Telephone Company, 539 S.W.2d 542, 545[1] (Mo.App.1976). The appellate court is also obliged to accept as true the evidence and permissible inferences which may be drawn, favorable to the prevailing party, and to disregard the contradictory testimony.”

Thus, armed with this principle, the soundness of which cannot be justifiably challenged, application to the facts herein leads to the conclusion that appellant must fail on points two and three. The facts in the record establish appellant was injured in a traffic accident, removed from the scene to respondent hospital, received care and treatment for approximately 27 days, offered no complaint to respondent relative to services or billing and received notice and demand of payment for the services.

Appellant offered no evidence to contradict an agreement to pay for these services and this court is required to look at the facts in evidence, apply the rule enunciated in S. G. Adams, etc. v. Central Hardware Co., supra and form its opinion. When these elements are drawn together, the conclusion is inescapable that the proper inference is that appellant requested the services and agreed to pay for the services.

While no authority appears to exist as it applies directly to hospital services, the broad general principle is to be found in 98 C.J.S. Work & Labor § 11c (1957), which declares,

“The request for performance of services which is ordinarily essential to the right of recovery, as discussed supra subdivision a of this section, may be inferred from circumstances, as where one accepts and retains the beneficial results of another’s services. The rule, as generally stated, is that, in the absence of family relationship, where one furnishes beneficial services or materials to another, the law ordinarily presumes a request and a promise to pay what such services are reasonably worth, unless it is understood that they were to be rendered gratuitously, or unless they were rendered under circumstances which repel this presumption; and, where one stands by while another renders services beneficial to him, and knows that the services are being rendered in the expectation of receiving payment from him, a request for the rendering of the services may, in the absence of circumstances to the contrary, be implied from such facts.”

It is the opinion of this court in this case and under the facts as presented herein, in finding no valid reason why the above-referred-to principle should not apply to hospital services, that said principle does apply to services rendered for hospital treatment.

As stated in this principle, the implied request, however, is not absolute. Only upon a failure of proper evidence, as with the case herein, to sufficiently rebut the implied request, does the principle become applicable.

The final point of error alleged by appellant directs itself to the charge that the trial court erred in finding that the charges claimed against appellant were fair and reasonable.

Remembering Rule 73.01 and the interpretation under S. G. Adams, etc. v. Central Hardware Co., supra, the facts in evidence on this point must be considered. The only evidence on this issue was the testimony of witness Fransen. He was the accounts manager with eleven years of experience of hospitalization management experience. He presented to the court the account records of appellant. These were properly admitted into evidence as part of the business records of respondent.

Appellant’s contention that proof of the charges for services failed to establish that they were fair and reasonable appears predicated upon witness Fransen’s not being a medical expert. This does not relate to the admissibility of his testimony but goes to its weight and sufficiency, which is a matter to be determined by the trial court. Unless it appears from the record that judgment is wrong, the judgment of the trial court is not to be overturned on the issues of the weight of the evidence. Murphy v. Carron, supra.

Appellant offered (and the same was admitted into evidence) the corporate certification of respondent. It is not absolutely clear how the intended offer of proof was relevant to the issues, but the court permitted appellant’s counsel to read the portion of declared corporate purpose regarding respondent’s charitable intent as a hospital. It can only be inferred that such was offered to prove that the services provided appellant were provided on the basis of charity and gratuity.

While admission of such evidence is within the discretion of the trial court as to its relevancy and materiality, this court would be remiss if it failed to clarify that such evidence falls quite short as sufficient proof that hospital services rendered to an injured person are so provided and rendered upon an implied premise of charity or gratuity.

Witness Fransen was a competent witness to present the account of appellant. His lack of medical expertise did not disqualify him as a witness as that testimony related to the fairness and reasonableness of charges for services rendered. His lack of medical expertise went to the weight and sufficiency of his testimony and was properly ruled upon by the trial court. Our system provides for liberal construction of who may be considered an expert witness within the sound discretion of the trial court. The evidence herein was uncontra-dicted that witness Fransen had 11 years of experience in hospital service charges and management. The trial court was made aware of that experience. That the trial court is invested with a certain amount of discretion in the admission of opinion evidence, see Schroeck v. Terminal Railroad Ass’n of St. Louis, 305 S.W.2d 18 (Mo.1957); that such discretion is reviewable if manifestly erroneous, see Ackelson v. Brown, 264 F.2d 543 (8th Cir. 1959).

The record reflects no abuse of discretion and no manifest error by the trial court in the admission of the testimony of witness Fransen. Point four is ruled against appellant.

For the reasons set forth herein, the judgment of the trial court is in all respects affirmed.

All concur.

      . All statute references are to RSMo 1969 except where otherwise indicated.

      . In 1978, the legislature revised this section and it reads as follows, “The same cause of action, and no other, that was tried before the associate circuit judge, shall be tried before the judge upon the trial de novo; provided, that new parties, plaintiff or defendant, necessary to a complete determination of the cause of action, may be added in the trial de novo.” This revision was not one of substance, but a designation of proper title of the associate circuit judge corrected the procedural reference of removal of causes of action from the associate circuit judge (formerly magistrate) to the Circuit Court as trial de novo as opposed to appeal. The revision is not controlling herein, but is included for purposes of clarification of the changes effected.

      .In 1978, § 512.300, RSMo 1969 was revised by the legislature to read as follows, “In all cases of an application for trial de novo, the bill of items of the account sued on or filed as a counterclaim or setoff, or the statement of the plaintiffs cause of action, or of defendant’s counterclaim or setoff, or other ground of defense filed before the associate circuit judge, may be amended upon a trial de novo to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment. Such amendment shall be allowed upon such terms as to costs as the court may deem just and proper.”


author: ROBERT R. WELBORN, Special Judge.

text:
    Marguerite Janice WITMER, et al., Appellants, v. Jane Ann BLAIR, Trustee, Respondent.
    No. 30319.
    Missouri Court of Appeals, Western District.
    Oct. 1, 1979.

      Wendell E. Koerner, Jr., Larry E. Scott, St. Joseph, for appellants; Brown, Douglas & Brown, St. Joseph, of counsel.
    William Rosenthal, St. Joseph, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and MASON, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Plaintiffs, beneficiaries of a testamentary trust, filed a two-count action against defendant trustee, seeking an accounting, removal of the trustee, and actual and punitive damages for breach of fiduciary duties. After trial to the court, the court ordered an accounting and removal of the defendant as trustee and entered judgment against defendant for $309 for unaccounted for funds but found against plaintiffs on their claim for damages for breach of fiduciary duties. Plaintiffs appeal from this portion of the decree.

By his Last Will and Testament, Henry F. Nussbaum made a residual bequest and devise of his estate to his niece, Jane Ann Blair, as trustee, “in Trust however, for the education of my grandchildren (children of my daughter, Dorothy Janice Witmer) living at the time of my decease, or born within a period of nine months thereafter.” In the event that none of his grandchildren survived to inherit the estate, the residue would revert to plaintiff Dorothy Janice Witmer, his daughter and first cousin of defendant trustee.

Nussbaum died in 1960. The trust estate came into the hands of the trustee in 1961. It consisted of $1,905 in checking and savings accounts, $5,700 in certificates of deposit and a house valued at $6,000.00. The house was sold in 1962, netting $4,467 to the trust estate. That amount was deposited in a trust checking account. In 1963, $2,000 in certificates of deposit were acquired by the trust and $500 was so invested in 1964. As of December 31, 1970, the trust fund assets consisted of $5,847 in checking account, $506 in savings account and $8,200 in certificates of deposit. In 1971 and 1972, the checking account balance was reduced by transfers to the savings account and on December 31, 1975, the trust assets consisted of $2,741 checking account, $5,474 savings account and $8,200 certificates of deposit.

Plaintiff-appellant Marguerite Janice Witmer was the only grandchild of the testator who became a beneficiary of the trust. She was born September 3, 1953. At the time of the trial, she was 23 years of age. She had not attended a college or university. However, various sums of money had been expended from the trust for her benefit, including a typewriter, clothes, glasses, modeling school tuition and expenses and a tonsillectomy. These expenditures totalled some $1,225.00. The trust also provided $350 for dentures for the mother, Dorothy Witmer.

The trust was handled by appellant rather informally. She kept no books for the trust. The expenditures above mentioned were in most cases advanced by her from her personal account and she reimbursed herself from the trust income. In 1965, the bank erroneously credited the trust account with $560 which should have gone to the trustee’s personal account. The mistake was not corrected and that amount remained in the trust account. The trustee received no compensation for her services. Asked at the trial whether she had ever been a trustee before, she responded negatively, adding: “And never again.” She explained the large checking account balances in the trust account by the fact that college for Janice “was talked about all the way through high school. * * * [I]n my opinion it was the sensible way to keep the money where I could get it to her without any problems at all in case she needed it quickly.”

An accountant testified for plaintiffs that if the sum of $800 had been kept in the checking and savings accounts (the $800 was based upon the maximum disbursement in any year) and the balance of the trust placed in one-year certificates of deposit, $9,138 more interest would have been earned as of September 30, 1976, from the trust estate than had been received under respondent’s handling of the trust.

As above recited, the court removed the trustee and surcharged her account for $309 in unexplained expenditures, but refused the claim for actual and punitive damages for breach of trust by failure to invest the trust funds. The trial court made no findings of fact or conclusions of law on the latter issue. Appellants make no reference in this court to the claim for punitive damages and it is deemed abandoned.

In this court, appellants contend that the respondent as trustee was bound to comply with the directions of the trust that she “invest the principal and re-invest the same” and that her failure to invest the trust corpus constituted a breach of her fiduciary duty for which she is liable. The respondent answers that inasmuch as the will failed to specify when and what investments were to be made, such matters were left to the discretion of the trustee and that she exercised such discretion honestly, with ordinary prudence and within the limits of the trust and is not liable for damages.

A concise summary of the law applicable in this situation appears in 76 Am.Jur.2d Trusts § 379 (1975):

“It is a general power and duty of a trustee, implied if not expressed, at least in the case of an ordinary trust, to keep trust funds properly invested. Having uninvest-ed funds in his hands, it is his duty to make investments of them, where at least they are not soon to be applied to the purposes and objects or turned over to the beneficiaries of the trust. Generally, he cannot permit trust funds to lie dormant or on deposit for a prolonged period, but he may keep on hand a fund sufficient to meet expenses, including contingent expenses, and he need not invest a sum too small to be prudently invested. A trustee ordinarily may not say in excuse of a failure to invest that he kept the funds on hand to pay the beneficiaries on demand.”
“The trustee is under a duty to the beneficiary to use reasonable care and skill to make the trust property productive.” Restatement (Second) of Trusts § 181 (1959). Comment c to this section states:
“Money. In the case of money, it is normally the duty of the trustee to invest it so that it will produce an income. The trustee is liable if he fails to invest trust funds which it is his duty to invest for a period which is under all the circumstances unreasonably long. If, however, the delay is not unreasonable, he is not liable.”
“A breach of trust is a violation by the trustee of any duty which as trustee he owes to the beneficiary.” Restatement (Second) of Trusts § 201 (1959). Comment b to this section states:
“Mistake of law as to existence of duties and powers. A trustee commits a breach of trust not only where he violates a duty in bad faith, or intentionally although in good faith, or negligently, but also where he violates a duty because of a mistake as to the extent of his duties and powers. This is true not only where his mistake is in regard to a rule of law, whether a statutory or common-law rule, but also where he interprets the trust instrument as authorizing him to do acts which the court determines he is not authorized by the instrument to do. In such a case, he is not protected from liability merely because he acts in good faith, nor is he protected merely because he relies upon the advice of counsel. Compare § 297, Comment j. If he is in doubt as to the interpretation of the instrument, he can protect himself by obtaining instructions from the court. The extent of his duties and powers is determined by the trust instrument and the rules of law which are applicable, and not by his own interpretation of the instrument or his own belief as to the rules of law.”

Under the above rules, there has been a breach of trust by the trustee in this case and her good faith is not a defense to appellants’ claim. When the respondent came into possession of the trust estate in 1962, appellant Marguerite was some nine years of age. Respondent was acquainted with her and was aware of her age. Obviously there was no prospect of the beneficiary’s attending college for a number of years. Respondent’s failure to invest a large portion of the trust corpus during such time may not be justified on the grounds that during such time she acceded to requests of the beneficiary’s mother to provide small sums for the beneficiary or her mother. Respondent’s brief acknowledges that such expenditures were not authorized under the trust. A breach of duty by the trustee in that regard cannot justify her further breach of duty to invest the trust corpus.

However, when Marguerite became of college age and was considering a college education, the respondent should not be faulted for keeping readily available a sum of money which would permit the use of the trust fund for such purpose. Marguerite was somewhat less than candid regarding her college plans. She stated that in 1972 when she went to the modeling school, “ * * * we had talked about [going to college] but * * * I wasn’t sure what I wanted to do. There was a chance I could have gone to college and a chance I couldn’t have. There was no definite talk either way.” However, her mother, in a letter dated February 6, 1972, had told respondent:

“Jan (Marguerite) has still been inquiring about C. U. Extension and Denver University and Arapahoe Jr. College with the idea of possibly starting this fall semester. She still wants more schooling. For this I am so thankful.”

It may be conceded that at sometime thereafter respondent should have become aware that college was not realistically in Marguerite’s plans and should have handled the Trust accordingly. However, in 1971 and 1972 she did substantially reduce the trust checking account by transfer to the interest-bearing savings account.

The accountant who testified for appellants calculated that between the opening of the Trust and 1971, when college for Marguerite would have been a realistic possibility, had the trust funds, in excess of $100 checking account and approximately 800-1,000 savings account, been invested in one-year certificates of deposit, the trust would have earned additional interest of $2,840.00. In view of the trustee’s transfer of a substantial portion of the checking account balance to savings in 1971 and 1972 and in view of the relatively small difference between the return from savings and what might have been earned from certificates of deposit (⅜% to 1 ½%), no damages should be assessed against the trustee for the handling of the estate during that period. However, the trustee should be held liable for the $2,840 which, according to the measure of damages, invoked by appellants, might have been earned by investment of the trust between 1962 and 1971.

Judgment reversed as to Count II of plaintiffs’ petition insofar as it denied plaintiffs’ claim for actual damages. Remanded with directions to enter judgment for plaintiffs on Count II for $2,840 actual damages.

Reversed and remanded with directions.

All concur.