the mother was not and it also not being to the child's best interest, as it had reached school age, to award custody alternately to each parent, as had previously been done.

mon Pleas; John A. Snider, Judge. "Not to be officially publised."

Action by Cora Tines against James E. Tines, in which plaintiff was granted a divorce. From a subsequent order, awarding custody of minor child of the marriage to his maternal grandparents, defendant appeals. Reversed and remanded, with directions.

ed as a waitress in a hotel, and only saw the child at stated intervals.

The testimony adduced in support of the wife's motion is to the effect that the father was 33 years of age; was a locomotive fireman earning $108 per month; that the hours of his employment were such that he would leave the house at 5 o'clock a. m., and work until 11 o'clock p. m., and then the

for duty; that appellant had been married

BECKER, J. The respondent, Cora Tines, had obtained a decree of divorce from her husband, James E. Tines, appellant here, some time in 1914. The decree awarded the custody of the son born of the marriage, James Ova Tines, at that time aged three years, for three months to the father, and at the expiration thereof "the custody of said child is to be delivered to the plaintiff at Cape Girardeau, Mo., for a like period of 3 months, and the possession and custody of the said child is to alternate at the end of every 3 months period at the same place, from the date of this decree until such possession, care, and custody is changed by further order of this court."

In February, 1916, the father remarried, and in June of the same year the former wife, Cora Tines, filed a motion to modify the decree theretofore rendered, asking that the full care and custody of the said child be given her. The father thereupon filed his motion, asking for a modification of the decree awarding him the sole custody of the child. These two motions were heard together, resulting in the court awarding the custody of the minor child to Mary F. Stone, its maternal grandmother, and ordering the father to pay the sum of $8 per month to Mrs. Stone for the support and maintenance of the child.

Respondent in her motion charged that the appellant was a man of bad repute and unfit to have the custody of the child, and further alleged that during the periods when the custody of the child had been in him the child had been neglected, had not been sufficiently clad in cold weather, and that the boy had not been given that watchful care which an infant of his years required, and that appellant had frequently mistreated the child.

Appellant's motion charged that respondent was an unfit person to raise the child, or even to have its custody for any period of

having obtained divorces from him; that a little girl, then about eight years old, one of the children born of his first marriage, was in the custody of the appellant; and that, at the time of hearing the motions to modify, the appellant lived with his third wife and said infant daughter in a small home which he owned, the home being of the value of $1,600, and all but $250 of the purchase price having been paid; that for a period of time after respondent obtained her divorce from the appellant be continued to live in his home, having with him his infant daughter by his first marriage, and his son, James Ova Tines, and that he had in charge of his household a housekeeper; that this condition obtained until his remarriage, as above set out.

There was also testimony that the boy, while in the custody of his father, on one or two occasions had been seen playing with some negro children who lived in the neighborhood; that once the boy had been seen climbing on the back of a grocery wagon; that several times the boy had come into the home of his maternal grandmother, who lived across the street from his father, and asked for something to eat; that on one occasion the boy was seen walking in the gutter in water over his shoe tops, and that several times during the winter the boy had been seen out of doors too thinly clad. There was also testimony that the mother had purchased most of the clothing for the boy after the divorce.

It was further shown that after the divorce the mother obtained employment and lived in the city of Jackson, Mo., some 10 miles from Cape Girardeau, where she worked in a hotel as a waitress at a salary of $5 per week; that at the hotel she shared, with another girl, "two little rooms, with a dresser, washstand, and chairs, and in one room a bed"; that each time the three months period came for her to have the custody of the child she "would take him to Jackson for a couple of weeks, but for the remainder of the three months he would stay with my fa

for

It further appears that respondent's mother is 64 years of age, and her father is 74 years of age and has a chronic cough, which he had had for the last 20 years. The grandparents have no property, and are dependent solely upon a pension of $30 per month.

The testimony in support of the father's motion to modify is to the effect that the mother has a quick and ungovernable temper, and when angry oftentimes uses profane language; that once since the divorce, at a time when the child was in her custody, on an occasion when she had permitted the father to take the boy to the fair at Cape Girardeau, the mother, who had also gone to the fair, met the father and the boy, accompanied by the father's two little daughters by a former marriage; that she became angry because of the boy being at the fair in the company of the two girls, and insisted upon taking the boy away with her; and that she used vile language and applied to the little girls a disgusting, vulgar epithet, loud enough for all three of the children to have heard. Several witnesses testified as to the irascible temper of the respondent and to her use of profanity. We refrain from setting forth that testimony in detail, as unnecessary in light of the other facts in the case.

There were several witnesses who were permitted to testify that in their judgment the mother was not a suitable person to have. the custody of the child, among them being Dr. George W. Walker, a physician who had known both the father and mother of the child for some three or four years, and at one time had been their family physician. Another such witness was Lon W. Tines, a cousin of the appellant. Still another, a Mrs. Hattie Harper, who testified she lived in Jackson and had worked at the same hotel with respondent for four or five months, and had slept in the same room with her, and saw her daily and observed her conduct. There was also testimony to the effect that while the boy was with the father he was properly clad, suitable to the weather conditions, and given sufficient to eat.

Appellant offered as a witness Mrs. Nettie Tines, the father's present wife, but on obJection of counsel for respondent that the witness was incompetent, being the wife of the appellant, she was not permitted to testify. However, several witnesses testified as to the age, character, and habits of the said Mrs. Nettie Tines, all of which was to the same effect, namely, that she was a young woman of excellent character, and had a kind, loving disposition, and was fond of children; that she came of a good Christian family, and herself taught a class in Sunday school; that she had experience in rearing

The record in this case shows that since the granting of the divorce there has been a material change in the status of the case. The mother had taken a position in order to earn a livelihood for herself and for her son, and by reason of the character of her employment is unable to devote that time and attention to the moral, mental, and physicial welfare of her son' which a child of his years necessarily should have; the boy has now reached an age where he should attend school regularly, and should not be shunted from one home to another every three months, an arrangement which will not stimulate an attachment of companionship and intimate friendship, which is necessary to the exist ence of unrestrained and unreserved confidence between parent and child, which is so essential in the proper guidance and control of a child. Then there is the fact that the father remarried, and according to the testimony in this case to a refined young woman of good education and of a loving and kind disposition, who it is to be hoped will prove of considerable aid to the father in seeing that the necessary care and attention are given to the boy.

In light of the record in this case we are of the opinion that there should be a modification of the original decree with respect to the custody of the child. A divided custody, alternating each three months, is clearly not for its best interests. The boy should be permitted to be in the custody of either his father or his mother, unless there exists some special or extraordinary reason, or the welfare of the child requires some other disposition. The custody alternating every three months results in a complete change in the method of the boy's bringing up, in his mode of living, and in his environment, to which, in our judgment, he should not be subjected.

[1-3] This contest is one between the parents for the custody of their child, and not a contest between some relative or friend for the custody of the child as against one of the parents, and yet the learned trial judge, in light of this record, has in his judgment thought it necessary and proper to take the guardianship of this child from the parents, and each of them, and to place it with the maternal grandmother. In order that such action may be justified, it is necessary to be convinced that neither the father nor the mother is a competent person to have charge of the child. A child's welfare normally is to be in the custody of its parents, and this is so because of the natural ties of love and the innate parental desire to protect and care for ones children; and so there is a presumption in law that it is to the best interest

after the defendant's car had already passed it. The driver of the defendant's car increased the speed of the car after he had ascertained that the plaintiff's team was running away and approaching the car. Then the driver of the car increased its speed to secure the safety of himself and passengers. The defendant's car at the time of the accident was running 12 or 15 miles per hour. Under points and authorities, the appel

The plaintiff was going north, driving a team of mules hitched to a mowing machine, and plaintiff was sitting in a seat attached to said mowing machine. The plaintiff was going down a hill, sloping to the north, known as Pilot Knob. The grade was about a half mile long, and plaintiff was near the top of the grade, when he was passed by the defendant's Jitney. At the time the plaintiff was passed by defendant's jitney, he was on the right-hand side of the road and the defendant's automobile ran around him on the left-hand side of the road, but the plaintiff did not know how close the machine was to the left-hand side of the road. The road was only 30 feet wide. The team showed no evidence of fright until after the car had passed them, but scared instantly after the car passed. The plaintiff did not hear any horn sounded or any other signal to announce to him that a car was approaching. The plaintiff fell off the machine, and his arm was torn to the bone and his hip was injured; he sent for a doctor. The doctor took three or four stitches in the injury on the plaintiff's arm and dressed his wounds. The plaintiff carried his arm in a sling for over a month; he never slept any for two nights, and his wound pained him two weeks. The driver of the defendant's car did not stop the same at the time of the injury; but, after he saw that the plaintiff's team was running away, he increased the speed of the car. The car was running about 30 miles an hour at the time it passed the plaintiff.

ness by the name of Stogstill, introduced by the plaintiff, purporting to detail a conversation he had with Penny Rodgers concerning the transaction out of which plaintiff was injured. Such conversation was shown to have taken place several hours after the alleged act of negligence took place, Penny Rodgers being the driver of the automobile and the agent of the defendant.

There is a sharp conflict in the testimony concerning the speed at which the automobile was traveling before it reached the plaintiff in the road as it passed him, and after it had passed him. There was also some question whether the driver of the machine know that plaintiff was injured, after he had passed plaintiff and continued on his journey without stopping. The place where the injury happened was about 10 miles south of Rolla, on a public road, and occurred some time during the middle of the afternoon on September 5, 1916. The evidence, without contradiction, shows that the driver of the automobile did not stop when the plaintiff's team ran away, but proceeded on his journey, with passengers bound for trains out of Rolla. It shows that he arrived in Rolla in time for passengers to take a train leaving about 4 o'clock in the after

noon.

[1] The evidence objected to was that detailed by one of plaintiff's witnesses, in which he undertakes to say what the driver of the machine told him that night about dark when he had driven back to or near the place where the injury occurred and talked to this witness introduced by plaintiff. The testimony of such witness was that the driver of the car, defendant's agent, asked him who it was that got hurt in the runaway and how badly he was hurt, what kind of man he was, and stated that he wanted to see him and make it right with him. He also stated that he (the driver) said "the reason he did not stop there was that he had some passengers, and that he had to meet the train."