McClelland v. Williamson, No. 12092

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: TITUS; PREWITT, P. J., and HOGAN
• Citation: 627 S.W.2d 94
• Parties: Eliza Maye McCLELLAND and Herschel Butler, Plaintiffs-Respondents, v. Bill WILLIAMSON, Defendant-Appellant.
• Decision Date: 04 January 1982
• Docket Number: No. 12092

Page 94

627 S.W.2d 94 Eliza Maye McCLELLAND and Herschel Butler, Plaintiffs-Respondents,
v.
Bill WILLIAMSON, Defendant-Appellant. No. 12092. Missouri Court of Appeals, Southern District, Division Three. Jan. 4, 1982.

Page 96

W. Swain Perkins, Thayer, for plaintiffs-respondents.

Russell A. Ward, Hyde, Purcell, Wilhoit, Edmundson & Merrell, Poplar Bluff, for defendant-appellant.

TITUS, Judge.

Plaintiff Maye McClelland owned a 402 acre farm on which grew walnut and oak trees. Her brother, plaintiff Herschel Butler, maintained five colonies of bees on the farm. Ralph Underwood owned 460 acres lying immediately south of plaintiff Maye McClelland's farm. Defendant, a veteran airplane pilot, operated a aerial crop dusting and chemical defoliant business. In June 1976, Underwood hired defendant to aerially apply chemical defoliant to timber growing on his property and defendant spent parts of three days on the task. Claiming that defendant had negligently permitted the defoliant to spread onto the 402 acre farm, plaintiffs sued for damages allegedly resulting to their trees and bees. The case was court-tried and the court, in its "Conclusions of Law" found "that defendant negligently and carelessly conducted a spraying operation" and as a direct result plaintiff Maye McClelland suffered $17,500 in damages and plaintiff Herschel Butler was damaged in the amount of $900. Judgment was entered accordingly and defendant appealed.

In this court-tried case "(o)ur review is governed by Rule 73.01, V.A.M.R., as set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we are not to disturb the lower court's judgment unless it is against the weight of the evidence, is not supported by substantial evidence, or erroneously declares or applies the law. Before we conclude a judgment in a court-tried case is against the weight of the evidence we must entertain a firm belief the judgment is wrong. And, we are to give due regard to the opportunity to the trier of fact to have adjudged the credibility of the witnesses. The trial court's resolution of conflicting evidence is to be accorded due deference by the reviewing court. Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481 (Mo. banc 1980)." Commerce Bank of Poplar Bluff v. Bulger, 614 S.W.2d 768, 769(1-3) (Mo.App.1981). Furthermore, the trial judge has leave to believe all, part or none of the testimony of any witness (Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975) ) and where there is a conflict in the testimony, we assume the trial court believed the testimony consistent with its findings. Chicago Title Ins. Co. v. First Missouri Bank of Jefferson County, 622 S.W.2d 706, 707 (Mo.App.1981).

Among defendant's points relied on in this appeal are complaints of the trial court's failure to make specific findings of fact upon several enumerated factual issues in the case. Plaintiffs in their brief counter with the assertion that the findings of fact and conclusions of law by the trial court were made by it voluntarily and not by request. Therefore, plaintiffs say, defendant may not complain of the failures of

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which he now contends and that voluntary findings and conclusions are not reviewable here and present no questions for our consideration. If plaintiffs' assertions were true their pronouncements would be correct. Key v. Gregory, 553 S.W.2d 329, 333(4) (Mo.App.1977). However, plaintiffs are mistaken. On page 183 of the transcript on appeal, defendant's counsel is shown, at the conclusion of all of the evidence, as stating to the court: "We would request ... the Court to make findings of fact and conclusions of law." This, in our opinion, constituted a general request for findings as required by former Rule 73.01(1)(b), V.A.M.R.

Defendant's above quoted request must be considered in conjunction with the just cited rule. The rule provides that if requested to do so before final submission, the court shall give a brief opinion containing a statement of the grounds for its decision and the method of determining damages awarded. Under the rule, the court need not make findings on any controverted fact issues except such "as have been specified by counsel." As defendant did not specify any controverted fact issues nor request findings thereon, the trial court may not successfully be charged with error for not making specific findings which were not requested. Snider v. Snider, 570 S.W.2d 770, 774-775(2) (Mo.App.1978). Nevertheless, the last sentence of the rule serves to emasculate that which proceeds it. Even had defendant specifically requested findings on any controverted fact issues, the court's failure to comply would not constitute reversible error for in such a situation "(a)ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." First Florida Building, Inc. v. Safari Systems, Inc., 570 S.W.2d 728, 730(1) (Mo.App.1978), and cases there cited.

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