Johnny ANDERSON, a minor, by his mother and next friend, Rosemary Anderson, Plaintiff-Appellant, v. David F. CAHILL, d/b/a D. F. Cahill Construction Company, Defendant-Respondent.
No. 58909
Supreme Court of Missouri, En Banc.
Sept. 8, 1975
Rehearing Denied Oct. 13, 1975
528 S.W.2d 742
A judgment ordering a defendant to pay money is void when the court has no jurisdiction over the person of defendant. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). Since in personam jurisdiction was never obtained over defendant, the award to plaintiff of alimony in gross, periodic alimony, child support and an attorney fee must be vacated. Beckmann v. Beckmann, 358 Mo. 1029, 1034, 218 S.W.2d 566, 570, 9 A.L.R.2d 428, 433 (1949).
Defendant has briefed and argued the alternative contention that the court erred in failing to grant him a stay or continuance under the Soldiers’ and Sailors’ Civil Relief Act. Since this contention is submitted alternatively and we have decided defendant‘s other contention in his favor it is not necessary to discuss this point.
The decree dissolving the bonds of matrimony and awarding custody of the two minor children of the parties to plaintiff is affirmed. In all other respects the decree is reversed.
SEILER, C. J., and MORGAN, HENLEY, FINCH and DONNELLY, JJ., concur.
BARDGETT, J., dissents in separate dissenting opinion filed.
BARDGETT, Judge (dissenting).
I respectfully dissent.
In my opinion there was sufficient evidence upon which the trial court could reasonably find as a fact that appellant was domiciled in Missouri and I would defer to that finding. The domicile of a person in the military service is oftentimes difficult to determine. In this case appellant does not claim to be domiciled in any other specific place and has designated Osage Beach, Missouri, as his permanent home address in his military records. This affirmative declaration of Missouri residency by the appellant, in my opinion, satisfies the requirement that he have a fixed intention to regard Missouri as his residence permanently or for an indefinite period of time. This, in my opinion, is particularly so in a situation where the nature of his employment—military service—requires his presence in various states and overseas and when he does not claim residency anywhere else.
With respect to physical presence in Missouri, there was evidence that appellant was in Camden County, Missouri, on a number of occasions. Although these occasions may principally have been when he was on furlough or vacation, it may well be that was the only time his employment allowed him to be in Missouri. In any event, it appears to me that the foregoing evidence together with the other evidence set forth in the principal opinion formed a sufficient basis for finding appellant to be a resident of Missouri.
For the foregoing reasons, I dissent.
Shook, Hardy & Bacon, David H. Clark, Robert E. Northrip, Kansas City, for defendant-respondent.
HENLEY, Judge.
This is an action for damages for personal injuries received by a child when he fell into a construction excavation. Verdict and judgment were for defendant and plaintiff appealed to the Court of Appeals, Kansas City district.1 That court affirmed the judgment and, on application of plaintiff, we ordered the case transferred to this court. It will be finally determined here the same as on original appeal.
Plaintiff was four years, ten months of age on the date of his injury. The excavation into which he fell was in a residential area of Independence, Missouri, on the grounds of St. Mary‘s Church adjoining Liberty street on the east. Located on these grounds were the church building, the rectory south of the church, both of which faced Liberty street or west; the high school and gymnasium buildings behind or east of the church and rectory; and a secondary school building on the north side of the church which extends east from Liberty back toward the gymnasium. Defendant, in the process of building an addition to the back of the church building, excavated an area approximately 10 feet deep for a large basement and then poured the concrete footings and foundation walls for the addition, leaving an open area or hold of approximately two feet between the east side of the excavation and the foundation wall. Plaintiff and his two sisters, ages 6 and 7, were enroute to a neighborhood grocery
Mrs. Virgil Julian testified that while in the car waiting for her husband to return, she saw two little girls playing in a sand pile inside the large excavation. She saw a little boy join the two girls and watched them play in the sand pile. Later, she saw her husband come out of the area between the concrete foundation wall and the side of the excavation carrying the plaintiff.
Defendant had erected a snow fence as a barrier in all openings leading from the street and the buildings to the construction area, but had failed to bar one avenue of access: a narrow strip (said to be 2-3 feet wide) behind the rectory and between a construction shed and the high school building leading north from an unbarred driveway on the south side of the rectory directly to the construction area and the excavation.
Plaintiff‘s first point is that the court erred in giving instruction No. 4, defendant‘s converse of plaintiff‘s verdict directing instruction No. 3, for the reasons stated below. Instruction No. 3 reads:
“Your verdict must be for the plaintiff if you believe:
First, defendant maintained an open excavated area, and
Second, defendant knew or should have known that young children would be likely to trespass, and
Third, that the open excavated area was a condition that the defendant knew or should have known involved an unreasonable risk of serious bodily harm to such children, and
Fourth, defendant failed to prevent plaintiff from being exposed to such harm, and
Fifth, defendant was thereby negligent, and
Sixth, as a direct result of such negligence plaintiff was damaged.
The term ‘negligence’ as used in these instructions means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”
Instruction No. 4 reads:
“Your verdict must be for the defendant unless you believe:
First, defendant knew or should have known that young children would be likely to trespass, and
Second, that the open excavated area was a condition that the defendant knew or should have known involved an unreasonable risk of serious bodily harm to such children, and
Third, defendant was negligent as submitted in Instruction Number 3, and
Fourth, as a direct result of such negligence plaintiff was damaged.”
Plaintiff contends that instruction 4 violated both the letter and the spirit of MAI2 and MAI 33.01 in that (1) it “was not a true converse but constituted two converse instructions within one * * *“; (2) it “deviated from MAI 33.06(6) which did not need modification * * *“; and (3) it “conversed only two elements of Instruction * * * [3], and failed to use any connecting words to identify the two elements upon which the jury could return its verdict for defendant, and hence constituted a rov-
Instruction 3 submits and requires a finding of the elements of plaintiff‘s theory of his right to recover in this case based on § 339, Restatement of the Law, Torts, First (1934). Anderson v. Cahill, supra, 485 S.W.2d at 77-78, and cases there cited. There is no applicable instruction in MAI and the numbered paragraphs of this instruction are said to have been patterned after MAI 22.01, the attractive nuisance verdict director, with modifications necessary to conform to § 339, supra.
Instruction 4, said to be patterned after MAI 33.06(6),3 converses not only the facts on which negligence is predicated, it also converses negligence generally. As we understand plaintiff‘s position, it is that defendant is entitled to one instruction conversing the facts on which negligence is predicated4 or one instruction conversing negligence,5 but not one instruction conversing both.
Plaintiff relies heavily on Murphy v. Land, 420 S.W.2d 505, 507[1] (Mo.1967),6 a humanitarian negligence case in which two converse instructions were given, one (MAI 29.06(6), first edition; now 33.06(6)) conversing the several elements of the humanitarian submission and the other (MAI 29.04(1), first edition; now 33.04(1)) conversing all negligence generally. The court held that the giving of these two instructions violated both the spirit and positive direction of MAI that only one converse be given for each verdict directing instruction, and was error. From this, plaintiff argues that the giving of one instruction which converses in combination both the “facts on which negligence is predicated” and “negligence” also violates the spirit and direction of MAI that only one converse be given.
In Young v. Grotsky, 459 S.W.2d 306, 308[1, 2] (Mo.1970) the court said: “MAI makes it clear that * * * there may be included in the one permitted converse instruction more than one proposition, provided only that the propositions conversed are submitted in the verdict directing instruction. * * * The reference in ‘Notes on Use’ that a defendant may give ‘only one converse’ for each verdict directing instruction means ‘only one converse’ instruction.”
Instruction 3, the verdict directing instruction to which instruction 4 was directed, required a finding of not only the “facts” submitted in paragraphs “First” through “Fourth,” but also that defendant was thereby “negligent.” The propositions conversed are submitted in the verdict directing instruction and combining them in the one converse instruction does not violate the proscription of MAI that only one converse instruction be given. Compare Brewer v. Swift & Company, 451 S.W.2d 131, 133[1] (Mo. banc 1970), in which the court held that the giving of an instruction conversing negligence was reversible error where the verdict directing instruction given did not require a finding of negligence, because (1) it allowed the jury to return a verdict for defendant upon finding a proposition not submitted by plaintiff, and (2) it did not comply with the requirement that the converse be in substantially the same language as the verdict director.
Plaintiff‘s argument that the giving of instruction 4 was error because it “deviated from MAI 33.06(6) which did not need modification” is without merit. It did deviate, considerably. But, if it was error to give instruction 4 it was not error for this reason.
Plaintiff‘s argument that instruction 4 gave the jury “a roving commission” to find for defendant, because it did not converse all but conversed only two of the numbered paragraphs of instruction 3 is also without merit. Defendant was not required to converse in instruction 4 all of the parts of plaintiff‘s verdict director or any particular part of it. A defendant may converse any one or more of the elements essential to plaintiff‘s case. Lietz v. Snyder Manufacturing Co., 475 S.W.2d 105, 109[6] (Mo.1972);
However, it is difficult to determine to which elements of plaintiff‘s case the converse instruction is directed. It appears at first to be directed only at paragraphs “Second” and “Third” of plaintiff‘s verdict director, but, on another examination, it also appears to be directed at all propositions submitted in the “First” through “Fourth” paragraphs, because the “Third” paragraph of the converse tells the jury it may find for defendant unless it believes defendant was negligent “as submitted in Instruction Number 3,” i. e., all elements of negligence submitted in plaintiff‘s case. In this respect instruction 4 is misleading and confusing. Furthermore, the “Third” paragraph of the instruction does not converse the “Fifth” paragraph of instruction 3 “in substantially the same language” as that of the verdict director as required by
Because the case is reversed for the giving of instructions 4 and 6, we suggest that if, upon retrial, plaintiff‘s verdict director is again patterned after MAI 22.01, that defendant should consider using as a pattern for his converse an instruction other than MAI 33.06(6).
Plaintiff also attacks the giving of instruction No. 6, which reads:
“The term ‘young children’ as used in these instructions means children too young to appreciate the danger of falling from a height.”
Plaintiff contends that the court erred in giving this instruction, because (1) it attempts to limit or change, contrary to the provisions of § 339, Restatement, supra, the description or definition of “young children” to whom the possessor of land would be liable for bodily harm; and (2) it is misleading. We agree.
Section 339, supra, reads:
“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
The Restatement‘s comment on clause (b), supra, reads, in part:
“An artificial condition may be peculiarly dangerous to children because of their tendency to intermeddle with things which are notoriously attractive to them, but this is not the only childish characteristic which may make an artificial condition, which involves no serious risk to an adult, highly dangerous to children. Children are notoriously inattentive to their surroundings, and this characteristic may make it unlikely that children will discover a condition which would be obvious to an adult. The lack of experience and judgment normal to young children may prevent them from realizing that a condition observed by them is dangerous or, although they realize that it is dangerous, may prevent them from appreciating the full extent of the risk.”
The young children to whom the possessor of land is liable for bodily harm under § 339, supra, are those who, “* * * because of their youth[,] do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it * * *“; his liability is not confined to those who are “too young to appreciate the danger of falling from a height.” Instruction 6 erroneously limits or restricts the membership of the group or “class” of trespassing children to whom the possessor of land (defendant) may be liable.
Furthermore, the term “young children,” used in § 339, supra, and plaintiff‘s verdict directing instruction, did not require definition. It is common knowledge that a child almost five years of age is prone to explore, is inattentive to his surroundings while doing so, and is unable to comprehend the danger and risk presented in a construction site such as that involved in this case. Further, the instruction‘s definition of young children is not applicable to the facts of this case, is misleading, and is erroneous for these reasons. The facts here do not involve a child falling from a “height” to the ground; they involve a child falling from the natural “security” of ground level into a “hole” in the ground, an artificial condition created by defendant which the child may not have discovered or realized the risk involved in coming within the area made dangerous by it.
For the reasons stated, the giving of instruction 6 was error prejudicial to plaintiff.
The last three points briefed by plaintiff are very general claims of error in the admission of evidence relative to the supervision and care given to students attending St. Mary‘s school and the warnings given them to stay away from the construction site. In connection with this charge of error, plaintiff also contends the court erred “in allowing persistent reference to ‘unsupervised children.‘”
In the first of these three points plaintiff refers only to the admission of “evidence of St. Mary‘s supervision of their students at street crossings,” and, more specifically, to the testimony of Sister Mary Edwina Comboy, principal of the school, that the elementary school children were not permitted to cross the streets unsupervised. Plaintiff‘s objection to this testimony was sustained and the jury instructed to disregard it. Also, in connection with allowing defendant to refer persistently to “unsupervised” children, plaintiff‘s objection was sustained in the only instances thereof mentioned in this point of his brief. For obvious reasons, plaintiff is in no position to charge that the court erred in ruling on the admissibility of this evidence.
In the remaining two points of the three plaintiff contends that the court erred in the admission of evidence that the school children were warned to stay away from the construction area and that defendant had no knowledge that young children, stu-
The judgment is reversed and the cause is remanded.
MORGAN, HOLMAN, BARDGETT and FINCH, JJ., concur.
DONNELLY, J., concurs in separate concurring opinion filed.
SEILER, C. J., concurs and concurs in separate concurring opinion of DONNELLY, J.
DONNELLY, Judge (concurring).
This is another in a line of cases in which we must deal with contributory negligence in terms of “appreciation of risk;” and where the defenses of assumption of risk and contributory negligence do not differ in legal effect. Cf. Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968).
I concur in the majority opinion but desire to indicate my view that, when the question is fully presented to us on appeal, we should consider: (1) abrogating contributory negligence, assumption of risk, and the humanitarian doctrine; and (2) adopting the “pure” form of comparative negligence. Cf. Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975).
There would seem to be no question that contributory negligence (Butterfield v. Forrester, 1809, 11 East 60, 103 Eng.Rep. 926), assumption of risk (Cruden v. Fentham, 1799, 2 Esp. 685, 170 Eng.Rep. 496), and the humanitarian doctrine, are, as general concepts, court-made and not legislative-made. Cf. Abernathy v. Sisters of St. Mary‘s, 446 S.W.2d 599 (Mo. banc 1969) and O‘Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975). An exception would seem to be actions for wrongful death (
Therefore, under Abernathy, supra, I do not believe we need defer to the General Assembly in resolving the matter. The doctrines were established by the courts and, if they are to be abrogated or changed, this Court should abrogate or change them.