author: CROSS, Judge.

text:
    Don BELL, Beulah S. Drake and Elvin Hubbs, Respondents, v. UNION ELECTRIC COMPANY OF MISSOURI, a corporation, Appellant.
    No. 23655.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Poague,, Brock & Wall, Clinton, H. C. Salveter, Sedalia, Harry H. Kay, Eldon, John A. Woodbridge, St. Louis, of counsel, for appellant.
    George H. Miller, Sedalia, Floyd L. Sperry, Jr., Clinton, for respondents.
   CROSS, Judge.

This is a tort action in the nature of trespass maintained by three plaintiffs who seek to recover damages for destruction of their crops resulting from the flooding of the Osage River in June and July of 1951, alleged to have been caused by the construction, operation and maintenance, by defendant Union Electric Company of Missouri, of the Bagnell Dam and the Lake of the Ozarks formed thereby. The petition is in three counts, each of which relates to a separate tract upon which the destroyed crops belonging to the respective plaintiffs were grown. Trial was to a jury which returned ■ a verdict in plaintiffs’ favor in the aggregate sum of $8,023.00. Defendant has appealed from the judgment.

The Osage River is a natural watercourse which flows generally to the east from the Missouri-Kansas boundary line through the counties of Bates, St. Clair, Benton, Camden, Morgan and Miller to Bagnell, Missouri, thence on to its confluence with the Missouri River near Jefferson City. In the years from 1929 to 1931, defendant constructed a hydro-electric dam across the Osage River near Bagnell at a point about 95 miles east of Warsaw. As a result, the upstream waters of the Osage River were impounded in a large, irregularly shaped lake, known as the Lake of the Ozarks, which extends from the dam upstream in the Osage River channel and spreads out into that river’s tributaries. When the level of the lake is maintained at 660 feet above mean sea level, considered to be full reservoir, the impounded waters extend westward to and “feather out” at the County Line Bridge between Henry County and St. Clair County, approximately thirty miles west of Warsaw. The farms on which plaintiffs cultivated their crops are located along the left bank of the Osage River, approximately 26 to 28 miles west of Warsaw. After unusually heavy rains in the months above mentioned, the lake rose to a maximum reservoir level of 664.40 feet at the dam on July 7, 1951.

Plaintiffs’ theory of recovery, as stated in the petition, is in substance as follows: (a) that the maintenance and operation of Bagnell Dam across the Osage River caused waters to be impounded so as to form the Lake of the Ozarks; that the impounded lake waters pass through the dam by a number of flood gates; that the water level is controlled by the opening and closing of the flood gates; that defendant had complete control of the dam and all its facilities (including the flood gates), and that control of the lake water elevation was exclusively exercised by defendant; (b) that in June and July of 1951, flood waters from the Lake of the Ozarks overflowed onto plaintiffs’ farm lands and injured and damaged their crops; (c) that the retardation of the flow of the Osage River and its tributaries resulting from defendant’s operation of the dam has caused silt, sand, gravel, clay and other materials being carried in the water to settle to the bottom, thereby filling up the beds of the river and its tributaries and decreasing the water-carrying capacity of those streams so that in times of heavy rainfall the flood water is not carried away at a normal rate and in normal amounts, thereby causing the said flood water to back up and overflow the lands of the plaintiffs; and, that said overflow and resulting damages would not have occurred except for the presence, maintenance and operation of the dam; (d) that the lake also acted as a retarding agent upon the natural drainage of overflow waters from the river and its tributaries, thereby greatly impairing and decreasing the natural flood water-carrying capacity of the river and its tributaries, and thereby contributing to cause the overflow of plaintiffs’ lands and contributing to cause flood waters to remain upon said lands and damage plaintiffs’ crops; (e) that plaintiffs’ crops were destroyed as a direct result of the construction, maintenance and operation of the dam.

In Count One of the petition it is alleged that plaintiff Don Bell was the owner of certain lands and the owner of the crops that were destroyed. Count Two contains allegations that plaintiff Beulah Drake was the owner of certain real estate and the owner of one-half the crops thereon, and that the crops were destroyed. In Count Three it is alleged that plaintiff Elvin Hubbs was the owner of one-half of the crops grown on the Beulah Drake farm and that the crops were destroyed.

Defendant, by answer, admitted the corporate existence of defendant and its ownership and operation of the dam and denied ail other allegations of the petition. By way of affirmative defense, the defendant pleaded that the rainfall which caused the 1951 overflow was an act of God, but abandoned that defense when the case was submitted to the jury. Defendant further pleaded, as to counts two and three, that it was relieved of liability because of an easement granted by plaintiff Beulah Drake.

Plaintiffs introduced voluminous evidence tending to show that before the dam was built the Osage River was a clear, free-flowing stream, with gravel bars and shoals, but that since the dam was constructed the river has silted up, and its water flows more slowly; and, that there are extensive and deep silt deposits in the main stream channel, on the islands, the sloughs, and the banks of the stream. There is a silted area at Brill’s Hill near Warsaw extending out a distance of 150 to 200 feet that is 10 to 15 feet deep. Toehead Island at Warsaw and the adjoining slough are silted up level with the river bank to a depth of 15 to 20 feet. There are silt deposits around Wingate Island as deep as 60 to 70 feet. The mouth of the Pomme de Terre River (formerly deep water) has been silted to a depth of about 12 feet except for a small channel. Dean Island is silted and mudded over. Silt is ten to twelve feet deep at Smart Island. There are large silt deposits near the Bells’ farm and silting in sloughs and around islands appears as far west as the County Line Bridge.

It was the testimony of plaintiffs’ witnesses that the river channel had been restricted from 30 to 35 per cent at Brill’s Hill, about 25 to 30 per cent at Wingate Island and 331/3 per cent at Smart Island. Since the dam was built there is more back water and it stays longer. In the vicinity of the Breshears farm there was more rainfall in 1929 and in 1935 than there was in 1951, but the river got higher in 1951 than in 1929 or 1935. Plaintiffs’ lay witnesses testified that since the dam was built and the lake formed it takes less rainfall to put the river out of banks and the flood waters stay up longer; that when moving water of the river hits slower water it doesn’t get away as fast; that the land overflows more often, more quickly, and with less amount of water.

Plaintiffs introduced in evidence answers made by defendant in response to interrogatories, which show that there were 12 floodgates in the dam, each 23 feet by 34 feet in size, with a total capacity to pass water varying from a volume of 148,800 cubic feet per second at lake level of 660 feet, to a volume of 190,800 cubic feet per second at lake level of 664 feet; and, that these flood gates can be opened to full capacity from a closed position in from 5 to 10 minutes. Plaintiffs also introduced in evidence, as exhibits, copies of the “Osage Plant Operating Data” for the months of June and July of 1951 which had been furnished by defendant in response to plaintiffs’ interrogatories. These are permanent records kept by defendant which show the condition of the lake from day to day and reflect the details of the daily operation of the floodgates during the named months. The “operating data” discloses the following facts: throughout June of 1951 the lake level remained below 660 feet until the 25th day of the month; beginning on that day the lake level began to rise above 660 feet and steadily, day by day, rose to a maximum of 664.40 feet by July 7th; beginning on June 24th, there was a sharp rise in the “inflow” from river waters, which increased from 68,000 cubic feet per second on that date to 133,500 cubic feet per second on July 6th, and 122,500 cubic feet per second on July 7th (the day of maximum lake level); in the month of June the floodgates were first opened on June 24th; on that day defendant “wasted” 12,400 cubic feet per second through the flood gates and daily increased the “waste” to 98,000 cubic feet per second July 7th; it appears that on each day from June 24th to July 7th, the “inflow” exceeded the “wastage” through the flood gates which had a daily capacity to exhaust water which exceeded the corresponding daily amount of “inflow”.

Darrell Adams, an engineer testifying for plaintiffs, stated that the presence of the silt deposits indicated that velocity of the river waters had been slowed, and that their flow was retarded both by the silt deposits and by the presence of the lake acting as an obstruction to the river channel. Mr. Adams stated that in his opinion the 1951 flood was caused by the fact that the lake prevented the river waters from flowing naturally and caused the waters to “spread out”, and because the defendant “stored” water in the latter part of June and in the first part of July and thereby let the lake level get higher and higher. The witness testified that “the main reason (for the 1951 flood) was the fact that the flood gates weren’t open”, and, that the water was retarded and caused to reach a higher flood level because defendant was “storing water and letting the lake level get higher and higher”.

Defendant also introduced evidence in great volume, including statistical data relative to the 1951 and prior floods, rainfall records, profiles of flood crests, river cross section charts, high water and river velocity records, aerial survey photographs and various other technical data.

It was defendant’s evidence that some silting had accumulated in the river but that there was no restriction of the channel from silting at Smart Island, at the mouth of the Pomme de Terre, or at Wingate Island ; that the silting at Brill’s Hill amounted to only 10 per cent, and that flow conditions were better there than before the dam was built; that silting below Heath Bridge amounted to less than 5% and less than 2% above that point; that silting in the area of the Bell and Drake farms was negligible; and, that there is no silting on the Warsaw side of Walthal Island. Defendant’s engineer witnesses testified to the effect that if the dam and lake had never been built the 1951 flood would have been the same on plaintiffs’ farms; that the silting of the river had no effect on the water flow at the Bell and Drake farms; that it was impossible for the lake to have had any influence in causing the flooding of the farms in question, that the lake did not cause the flood waters to “back up” on those lands, and that plaintiffs’ farm lands would have been flooded and their crops destroyed if the dam and the lake had not been in existence.

In submitting the issues to the jury the trial court gave Instruction No. 1, plaintiffs’ verdict-directing instruction, which reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that in the months of June and July, 1951, the defendant Union Electric Company, owned and operated a hydroelectric dam across the Osage River at Bagnell, Missouri; that said dam impounded the water of the Osage River and its tributaries, creating a lake or reservoir, which at the state of 660 feet above mean sea level extended from Bagnell, Missouri, to approximately the County line between Henry and St. Clair Counties; and that plaintiffs’ farms in question adjoined said lake or reservoir and Osage River as it existed approximately 25 miles above Warsaw, Missouri; and if you further find and believe that as a result of the construction, maintenance and operation of the dam at Bagnell, silt deposits had been formed in the channel and along the banks of the Osage River in and around Warsaw and to a lesser degree at the various places mentioned in evidence upstream to the vicinity of plaintiffs’ farms by June of 1951, and that said silt deposits retarded the flow of the Osage River in the vicinity of plaintiffs’ farms in the latter part of June and early part of July, 1951, thereby contributing to cause the flood waters of said Osage River to go upon plaintiffs’ croplands in question and destroy the crops in question; and if you further find and believe that in the latter part of June and early part of July, 1951, the water in the lake or reservoir was at such elevation that said lake acted as a retarding agent to the natural flow of the Osage River in the vicinity of plaintiffs’ farms, thereby contributing to cause the flood waters of said Osage River to go upon plaintiffs’ croplands in question and destroy the crops in question; and if you further find and believe that in the latter part of June and early part of July, 1951, the floodgates at the dam at Bagnell were so operated by the defendant as to contribute to cause the floodwaters of said river to go upon plaintiffs’ cropland in question and destroy plaintiffs’ crops in question; and if you find and believe that these three things above set out, that is: first, the silting described in evidence, if you find that said silting did exist,, second, the presence of the lake or reservoir at such height as to act as a retarding agent to the natural flow of the Osage River in the vicinity of plaintiffs’ farms, and third, the operation of the floodgates at the dam, combined together were the cause of the flood-waters of the Osage River going upon plaintiffs’ cropland in question and destroying the crops in question; and if you further find and believe from the evidence, that under all the conditions then and there existing plaintiffs’ crops would not have been flooded and destroyed had it not been for the construction, maintenance, and operation of said Bagnell Dam by defendant, then your verdict should be for the plaintiffs and against the defendant”.

It is not disputed by defendant that plaintiffs’ croplands were flooded in June and July of 1951 and that their crops were destroyed. It was established by uncon-tradicted evidence that the crops were growing on lands lying above an elevation of 673 feet and that they were destroyed by flood waters rising above that level. No point is made that plaintiffs were not damaged. Nor does defendant claim that plaintiffs failed to make out a submissible case on their pleaded theory.

Defendant’s first complaint in this appeal is that there is a fatal defect of parties plaintiff as to Count One. Defendant says it is shown by the evidence that Don Bell, the sole named plaintiff in Count One, was not the sole owner of the land described therein, but that it was owned jointly by plaintiff Bell and Lora M. Bell, his wife, as tenants by the entirety. Therefore, defendant argues, plaintiff Bell was not entitled to maintain the action since his wife was jointly interested with him in any action for trespass upon the jointly owned real estate and should have been named as a party in Count One under the provision of Section 507.030 V.A.M.S. (Civil Rule 52.04(a), V.A.M.R.) which requires that “persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants.”

Without determining whether or not it is established by the evidence that the Bell farm was owned by plaintiff Bell and his wife by the entirety, and even assuming title was so held, we necessarily rule that it was not incumbent upon plaintiff Bell to prove that he was sole owner of the realty upon which the crops were grown in order to maintain the present suit to recover damages for their destruction by defendant’s alleged wrongful acts. The action is not for damages to the freehold — the land as such. The recovery sought is for damages to growing crops which, according to the evidence, belonged to plaintiff, Don Bell, as owner thereof. From that testimony we may further assume that the crops were in his possession. “An injury to annual crops or growing grass is, as a general rule, an injury to the possession, and the right of action therefor is in the tenant alone. The landlord may not sue therefor. * * * One working his wife’s land by her permission and receiving the proceeds thereof may maintain an action in trespass for damage to his crops”. 15 Am.Jur. Section 60, p. 250. It is stated in 87 C.J.S. Trespass § 29, pp. 983-984, that “One who owns a certain specific thing which is a part of another’s realty can maintain trespass quare clausum for an injury to it. * * * The rule has been held to apply to growing crops”. And, the following rule is stated in 93 C.J.S. Waters § 36(6), p. 661: “Possession is sufficient to enable plaintiff to maintain an action against one who wrongfully floods the land, so that an action may be maintained by one who is in possession by license * * or lease”.

As against a mere tort-feasor, actual possession of land is alone sufficient to maintain trespass, although such possession is altogether unsupported by evidence of title, and even though it affirmatively appears that plaintiff is without title. That doctrine applies where possession is by permission of the owner. 87 C.J.S. Trespass § 24, pp. 976-977. In Robertson v. Welch, Mo.App., 246 S.W.2d 828, this court said: “In our opinion, it is not necessary or material in this case to determine where title to the timber was, since the Missouri cases uniformly hold that an action in trespass can be maintained against a trespasser by a party in possession”. In the frequently cited case of Reed v. Price, 30 Mo. 442, it is stated: “The law has been too long and too well settled to render it necessary to cite authorities in support of the position that possession is sufficient to maintain an action of trespass”. Also see Watts v. Loomis, 81 Mo. 236; Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142; Allen v. Wehrman, Mo.App., 204 S.W.2d 464; Chappee v. Lubrite Refining Co., Mo.App., 89 S.W.2d 543.

Cases cited by defendant holding that ownership of realty carries with it a presumption of ownership of growing crops are not. persuasive on the question. If any presumption to that effect arose in this case, it was overcome by the undisputed evidence that plaintiff Bell was owner of the crops in question. Defendant also relies on Robertson v. Welch, supra. The cited case is of no benefit to defendant because there the plaintiff’s right to sue for trespass arose from the fact that she had possession of certain timber involved — not because she had record title to the land on which it stood.

It is our conclusion that plaintiff Don Bell was entitled to maintain his action for damages in Count One.

Defendant next insists that Beulah S. Drake and Elvin Hubbs, plaintiffs respectively in Counts Two and Three of the petition, are not entitled to recover because Beulah Drake, the owner of the land involved, had executed an easement granting defendant the right to flood the lands up to an elevation of 673 feet. Defendant says: “Plaintiff Beulah H. Drake released the defendant from all claims for damages of every kind and description whatsoever to the part of the land lying above elevation 673 caused by the water reaching said contour line or any lower elevation. Plaintiff’s causes of action were based upon conditions which resulted from the defendant holding water in the river to elevations below 673 feet”.

The easement referred to was executed by Beulah S. Drake and George W. Drake, her husband, on February 9, 1931, in the form of a warranty deed which, in conventional language, granted defendant certain lands (a portion of the farm in question) described as “lying below contour line of 673 feet above mean sea level as now marked and established on said land, the buyer hereby released from all claims for damages of every kind and description whatsoever to the part of said land lying above said contour line caused by the water reaching said contour line or any lower elevation”. (Emphasis supplied.) The instrument granted defendant the easement right, with respect to the demised lands, quoted as follows:

“To back water, over or under, submerge or otherwise damage said tracts of land through backwater of otherwise, wheither caused by flooding, erosion, seepage, ground water, lack of drainage, obstructed drainage, or in any manner resulting from the construction, operation, and mainta-iwice of the dam, power plant and works appuriamf thereto located in, across or along or adjacant to the said Osage River at approximately Mile 75 on said River in Miller County, Missouri and constructed in accordance with the plans now or hereafter made and approved by the Federal Power Commission for Project No. 459. Said dam, power plant and works appurtcmi thereto shall be designed to hold water at the dam at approximately 660 feet above mean sea level;”.

Although it is clearly shown by the evidence, without dispute, that the crops owned by plaintiff Drake and plaintiff Hubbs (her tenant) were growing on land lying above the contour line of 673 feet, and were destroyed by flood water which reached above the contour line of 673 feet, it is still insisted by defendant that it is released from liability for the crop damage sued for in counts two and three by the terms of the easement. Defendant argues, in effect, that the conditions which plaintiffs claim caused the flooding of their lands (above an elevation of 673 feet), to-wit, the silt deposits, the presence of the lake, and its retarding effect on the flow of the river, were the result of defendant’s maintenance of the lake at a normal elevation of (approximately) 660 feet — therefore, the flooding of plaintiffs’ lands (due to the silting, the retarding effect of the lake, and the presence of the lake) was caused by water which did not reach above the level of 673 feet. Hence, says' defendant, since plaintiffs’ damages were caused by water “reaching said contour line or any lower elevation”, the release operates to defeat plaintiffs’ claims.

We do not accept the foregoing theory. Defendant’s proposed interpretation of the release is, in our opinion, contrived and illogical. We read and understand the instrument according to the plain, ordinary and usual meaning of the language it contains. We consider it to be a grant to defendant of the unlimited right to flow water upon the Drake farm up to the level of 673 feet, but no higher. If the parties had intended that defendant was to be relieved of liability for the consequences of flooding by water actually rising upon the surface of the land above the contour level of 673 feet, they should have so provided in the contract. The only provision affecting the land above the level of 673 feet is the clause “ * * ⅜ the buyer hereby released from all claims for damages of every kind and description whatsoever to the part of the said land lying above said contour line caused by the water reaching said contour line or any lower elevation”. We are in agreement with plaintiffs that the only intelligent construction of the quoted provision would be that if the water came upon plaintiffs’ lands and reached the elevation of 673 feet, but no higher, and caused damages to their property above that elevation by percolation or other physical means (resulting from the presence of the water lying below 673 feet), then the defendant would not be liable.

We believe that the parties were contracting in reference to a direct, immediate agency of destruction, i. e., flood waters that might actually flow and lie upon the lands — not in reference to the remote and secondary consideration involving the normal operation of the lake, as contended by defendant. It is necessarily our conclusion that defendant had no easement of right to flood the croplands described in counts two and three.

In two remaining assignments defendant complains of error in plaintiffs’ verdict-directing Instruction No. 1. The first complaint of the instruction is that it permitted the jury to find that the floodgates were so operated as to contribute to the flooding of plaintiffs’ crops “without requiring the jury to find what operations of the floodgates contributed to cause the flood waters to go upon the plaintiffs’ crops or what operations had anything to do with raising the level of the water at plaintiffs’ farms”.

This contention is grounded on the rule stated in Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, that “Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintiff would be entitled to recover and under one or more of which he would not, then a verdict-directing instruction or instructions given in his behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict.” Attempting to invoke the foregoing rule, defendant insists that the instruction should have hypothesized facts showing in what “particular manner” it had operated the dam floodgates, so as to .raise the water level at plaintiffs’ farms, and should have required the jury to find those facts before they could arrive at the ultimate conclusion that the defendant’s operation of the floodgates contributed to the flooding of plaintiffs’ crops.

The weakness of defendant’s position lies in the fact that the evidence does not contain “two or more divergent sets of essential facts” relating to the operation of the floodgates. There is only one set of facts in the .record to show how defendant manipulated those instrumentalities at the time in question. These facts were supplied by the defendant itself in response to interrogation, consist of undisputed record evidence, are uncontradicted by any other evidence, and are to the conclusive effect that the floodgates were operated by defendant to less than their capacity with the result that lake water was “stored” and caused to rise in elevation.

It is hornbook law that reversible error is not committed by omitting from an instruction the specific hypotheses of fact which are undisputed and in effect conceded. “Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions. And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction.” Hooper v. Conrad, supra.

This rule was applied in Breshears v. Union Electric Company of Missouri, Mo.Sup., 313 S.W.2d 638 — also an action in trespass to recover damages resulting from flood water. The court pointed out in its opinion that there was no contested issue in the case as to the existence of the “conditions” which plaintiffs claimed contributed to cause flooding of their lands and damage to their crops. The claimed conditions related (as they do in this case), to the construction, maintenance and operation of defendant’s lake, and its installations, including floodgates, and the presence of accumulated silt, and the retarding effect of the lake. Rather, the court stated, the real issue was as to whether, under those admitted conditions, plaintiffs’ lands would have been flooded except for the construction, maintenance and operation of the dam and installations. For those reasons, the court held that plaintiffs’ verdict-directing instruction was not reversibly erroneous in failing to require findings of fact by the jury as to the noted “conditions” which were not the subject of controversy. The court further observed that if defendant deemed the hypotheses contained in the instruction too general or insufficient, it should have offered clarifying or amplifying instructions. We consider the case controlling here.

The defendant cites and relies upon a later “Breshears case” — Breshears v. Union Electric Company of Missouri, Mo.Sup., 347 S.W.2d 233. In that case, unlike the first Breshears case, the court found there was “sharp conflict” as to the “conditions then and there existing”, as distinguished from the effect of admitted conditions. For that reason, the court determined that plaintiffs’ verdict-directing instruction was erroneous in failing to require findings of fact essential to plaintiffs’ recovery. We do not regard the case as supportive of defendant’s present contention.

Defendant implies in its reply brief that the jury should have been required to find that the “admitted facts” shown in evidence “constituted negligence and that such negligence was the proximate cause of plaintiffs injury”. Let it be remembered that this is not a case founded on negligence, but is a suit in the nature of trespass. The defendant is aware of that fact because it states in its brief, “This was an action for damages in the nature of trespass upon real estate”. Therefore, the defined attributes of an action in trespass which are stated by Commissioner Houser in Corrington v. Kalicak, Mo.App., 319 S.W.2d 888, are presently applicable. We quote: “While a trespass often arises out of or is accompanied by an act of negligence, liability for trespass may be wholly independent of any act of negligence. Negligence is by no means a necessary element in trespass and liability may be imposed for damage to property naturally and necessarily resulting from trespass, regardless of negligence. * * * The basis of liability (for damages caused by overflow of the waters of a natural watercourse by reason of an obstruction) is the fact that the obstruction causes the water to overflow, encroach upon and inflict special damage to the property of another. It is the impounding of the waters to such an extent that an overflow occurs and a trespass results — a wrongful act — which fixes liability. Whether the impounding of the waters is intentional or accidental, whether the overflow is caused by negligence or without negligence, the agency obstructing the flow and causing the overflow of the waters of a natural watercourse to the damage of adjacent property owners is liable for its misfeasance in an action of trespass.”

Since plaintiffs have chosen to base this action on trespass — not on the theory of negligence' — they are not bound by the essential requirements inherent in the latter remedy. It is not plaintiffs’ burden in this case to prove or submit any hypothesis of defendant’s negligence or proximate cause related thereto.

It is our conclusion that the instruction adequately hypothesizes facts in reference to defendant’s operation of the floodgates.

Defendant’s final contention is that the last clause of Instruction No. 1 constitutes a roving commission to find for plaintiffs on the consideration of “any conditions — whether such conditions were alleged in the pleadings or whether the defendant was responsible for the conditions or not”. The instruction is not erroneous in the respect charged. It requires specific findings on the three hypotheses of causation submitted by plaintiffs, to-wit: the silting, the retarding effect of the lake, and the operation of the floodgates. See: Breshears v. Union Electric Company, Mo.Sup., 313 S.W.2d 638; Ferguson v. Union Electric Company, Mo.Sup., 305 S.W.2d 401; Cunningham v. Union Electric Company, Mo.App., 221 S.W.2d 758. Our reading of the second Breshears case, on which defendant relies, does not disclose any expressed disapproval of the clause in question as a proper statement of the law when incorporated in a verdict-directing instruction which hypothesizes the contested issues of fact.

The judgment is affirmed.

All concur.

      . For a full description of Bagnell Dam and the Lake of the Ozarks, see: Ferguson v. Union Electric Co. of Missouri, Mo.Sup., 282 S.W.2d 505; Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.23 756; Grace v. Union Electric Co. of Missouri, 239 Mo.App. 1210, 200 S.W.2d 364.

      . Cf. Ferguson v. Union Electric Company of Missouri, Mo.Sup., 282 S.W.2d 505.


source: Caselaw Access Project

license: Public Domain

text:
    John PUTNAM, William C. Putnam and Putnam Lumber Company, Inc., a partnership d/b/a Nevada Lumber Company, Respondent-Plaintiff, v. Francis O. HEATHMAN, Edith Heathman, Lawrence S. Searing, Robert H. Owen, and Home Savings Association of Kansas City, Missouri, Appellant-Defendants.
    No. 23714.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Shockley, Searing, Reid, Koger & Reid, Kansas City, for appellant.
    Amos Wight, Ewing, Ewing, Ewing, Carter & Wight, Nevada, for respondent.
   CROSS, Judge.

In this action plaintiff lumber company-seeks to recover a money judgment against defendants Francis O. Heathman and' Edith Heathman, husband and wife, for the value of labor and materials allegedly furnished them by plaintiff, and to enforce such judgment as a mechanics’ and ma-terialmen’s lien upon certain real estate— a house and lot formerly owned by the Heathmans, but presently owned by defendant Home Savings Association of Kansas City, Missouri. Defendants Lawrence S. Searing and Robert H. Owen are parties in name only, have no interest in the lawsuit, and are not affected by it. The trial, which was to the court, resulted in a judgment for plaintiff as against defendants Heathman in the sum of $4,277.45, with interest in the further sum of $324.36, a total sum of $4,601.81. The trial court, after ruling that certain account entries in the lien statement designated as “advance labor” and totalling $2000.00, were not lienable items of charge, decreed that the judgment be a special lien upon the mentioned real estate only to the extent of $2,277.45, the amount claimed as the value of the materials furnished and used thereon, with interest computed as $166.41, a total lien sum of $2,443.86. The court further declared the special lien to be prior and paramount to any lien claimed by defendant Home Savings Association. This appeal is prosecuted solely by defendant Home Savings Association and is grounded on the contention that the court erred in impressing the real estate with a lien in any amount whatsoever for the reason that the inclusion of the nonlienable items vitiated the entire lien claim.

The material allegations of plaintiff’s petition are to the effect that plaintiff entered into a contract with the Heathmans to furnish labor and materials to be used in improving a dwelling located on real estate owned by them, that the labor and materials were so furnished and used; that the Heathmans failed, upon demand, to pay -for the labor and materials; that a just rand true account of the demand due plaintiff was filed as a lien statement in the •office of the circuit clerk; that after plaintiff had furnished the labor and materials, the Heathmans executed and delivered a •deed of trust on the real estate to defendant Searing-, as trustee for defendant Owen, to •secure an installment note in the aggregate sum of $3,382.80, given by them to defendant Owen to evidence a loan they had obtained from him; that the note and deed -of trust were subsequently transferred to ■and are presently owned by defendant Home Savings. The prayer of the petition is for judgment against the defendants Heathman in the total sum of the account, and that the judgment be enforced as a special lien against the real estate and declared to be a first and prior lien as •against the lien of the mortgage encumbrance held by Home Savings.

Defendants Heathman filed their joint answer admitting all allegations of plaintiff’s petition. Defendant Home Savings filed its answer admitting ownership of the note mentioned in the petition, denying the •principal allegations of the petition, including the allegation that the lien statement was a just and true account of plaintiff’s demand, and praying that the lien of its deed of trust be adjudged paramount and prior to plaintiff’s materialmen’s and mechanics’ lien claim.

Much of the evidence is undisputed. The following facts were established by uncon-tradicted testimony, by record evidence and by stipulation. Defendants Heathman are Tiusband and wife'. On May 20, 1959, they entered into a written contract to purchase the real estate involved, consisting of a ffouse and lot in Nevada, Missouri, for the purchase price of $2000.00, payable in installments of $30.00 per month. The contract provided that the Heathmans would receive a warranty deed from the sellers •upon completion of payment. Thereafter :and sometime prior to August or September ■of 1959, the Heathmans contacted plaintiff dumber company’s manager, Mr. Dietrich, and discussed the subject of remodeling their house and requested an estimate of the amount and cost of materials required. The subject of the Heathmans’ financial condition was also discussed, and Mr. Dietrich suggested the availability of an F.H.A. loan to pay for the labor and materials necessary for the house improvements. The Heathmans informed Mr. Dietrich that they had little equity in the property and owed more than $1900.00. Mr. Dietrich then suggested that it might be possible that plaintiff would loan Heath-man enough money to pay off the indebtedness on the house. No agreement was reached between the Heathmans and plaintiff lumber company at the first meeting above noted. At a second meeting with Mr. Dietrich, and in the absence of Mrs. Heathman, it was agreed between Mr. Heathman and plaintiff lumber company acting through its representative, Mr. Dietrich, that plaintiff would provide Heathman with the money necessary to pay off the indebtedness on the residence property. Subsequently, on January 30, 1960, defendant Heathman received $1900.00 from plaintiff in the form of a check payable to him alone, and on the same day used the money to pay off the balance due on the contract for a deed and received in return the seller’s warranty deed, which was duly recorded. Later, on March 7, 1960, plaintiff furnished the Heathmans additional money in the sum of $100.00 which they used to pay a plumbing bill. After receiving and recording their warranty deed, the Heathmans made out an application for an F.H.A. loan and delivered it to Mr. Dietrich. Some time thereafter, Mr. Dietrich informed Heathman the application had been accepted and that he could “go ahead with the work”. Defendant Heath-man then proceeded to do the contemplated remodeling. He and his sons performed all the necessary labor except the plumbing and electrical work. Heathman testified that extensive improvements were made upon the house and that the total value of the labor done by himself and his sons exceeded $2000.00. Plaintiff furnished and delivered the building materials used and entered charges therefor in the account submitted to the Heathmans and as incorporated in the lien statement. Plaintiff did not perform, procure or pay for any labor. The F.H.A. loan applied for was not granted to the Heathmans, but on December 16, 1960, they secured a loan from Robert H. Owen and executed their note payable to him in the sum of $3,382.80, together with the deed of trust conveying the real estate to trustee Searing, as above noted. Thereafter, on December 21, 1960, defendant Home Savings purchased the note from Owen. On February 21, 1961, plaintiff filed its mechanics’ and materialmen’s lien statement, containing account items of charge totaling $4341.10. Both items of cash advanced to the Heathmans, to-wit, the sum of $1900.00 and the sum of $100.00, were entered on the lien statement as “advance labor”. The remaining sum of $2341.10 represented charges for building materials furnished.

This suit was duly commenced on March 8, 1961, to enforce the lien as filed. During pendency of the action, and before trial, defendants Heathman defaulted in payment of their note then held by Home Savings, and trustee Searing sold the real estate at its request under the terms of the deed of trust. Home Savings was purchaser at that sale and has made no conveyance of the real estate.

At the trial, plaintiff voluntarily reduced the account claimed against the Heath-mans and the amount of the lien statement to the sum of $4277.45 by disclaiming entitlement to certain items of charge for materials which had been inadvertently and erroneously included. No contention was made by Home Savings that the lien statement was not duly filed or that the statement of account for the building materials was incorrect or deficient.

The real issue of fact developed at the trial was whether the cash item of $1900.00 plaintiff turned over to Heathman was a loan to pay off the purchase price of the house, as Home Savings insists, or whether it was a cash advance to pay for labor to be performed on the house as plaintiff lumber company contends. Aside from circumstances from which inferences can be drawn, the only direct evidence on the subject came from defendant Heathman, who was produced by and testified for plaintiff. Plaintiff’s former manager Dietrich was no longer in its employ and was not produced at the trial. Witness Heath-man’s testimony is vacillating and contradictory, but the clear import of it is apparent from certain of his answers quoted as follows:

“Q. Did Mr. Dietrich, the gentlemen from the Nevada Lumber Company, when he first came to see ■ you suggest that, at that time, the Nevada Lumber Company would lend you enough money to pay off your house ?
“A. He said it would be plausible (sic)”.
* * * * * *
“Q. Nonetheless, it was agreed between you that the money would be used to pay off the house, is that correct?
“A. Yes, sir.
“Q. When you got this money what did you do with it?
“A. I went and paid off the man and obtained the deed and went and had it recorded.
“Q. How was the check made out?
“A. Made out personally to me”.
* * * * * *
“Q. According to this account you were given $1900.00 on January 30th and then again on March 7th you were given another $100.00, why was that?
“A. Well that was to pay for the plumbing labor or part of it.
“Q. Part of it?
“A. Yes. That was what it was used for.
“Q. Why did you get $1900.00 at one time and $100.00 another time?
“A. I didn’t need the other hundred then.
“Q. You did need the $1900.00 to pay off, is that correct?
“A. Yes, sir”.
* * ⅜ * * *
“Q. Mr. Heathman, this morning you testified that there was an understanding that the $1900.00 that you owed on the land at the time you entered into this deal would be paid off with that $2,000.00, isn’t that correct?”
Jji sfc * * * *
“THE COURT: Was that your testimony this morning?
“A. I believe it was.
“Q. Is it still true?
“A. Yes, sir”.

The foregoing quoted testimony of Heathman amply justifies the trial court’s finding of fact that the $1900.00 was advanced to Heathman, not for labor or “advance labor”, but for use by him to pay off his contracted debt, and that the money was so used. We quote that finding from the trial court’s memorandum opinion, as follows:

“As the court sees it, it is not material whether Heathman himself did the work or whether some third party did it, inasmuch as it is clear that there was no employee of plaintiffs who did it. Nor is the intention of the parties for which the money was advanced important, here although denominated as ‘labor advanced’ and which plaintiffs and Heathman proclaim steadfastly was for labor, it is clear that both these parties knew that $1,900.00 of it was to be used (and was used) to pay off the contract for deed in order that Heathman might receive a deed to the premises from their vendor”.

As we stated in the beginning, defendant Home Savings contends that the trial court erred in impressing the lands herein concerned with a special lien in any amount whatsoever. This contention is grounded on reasons stated as follows: (1) because the lien statement includes intentional charges for moneys furnished to Heath-man, which items are not lienable by statute; (2) because the intentional inclusion of those nonlienable items renders the lien statement not a “just and true account” of claimant’s demand and vitiates the entire lien; and (3) because the nonlienable items for moneys advanced were deliberately included in the lien statement with knowledge that they were not proper charges, and with the intention to mislead the public.

The paramount issue of fact in this appeal is the same question that dominated the trial — whether the $1900 advance was for labor or was to be used in payment of the Heathmans’ debt on the house. Our decision of this appeal depends substantially upon our determination of the defined fact issue.

Analysis of Heathman’s testimony leads us to the same conclusion reached by the trial court as to the intended purpose and use of the $1900.00 paid to Heathman by the plaintiff. We approve and adopt the quoted finding of that court. We believe, and specifically find the fact to be, that the $1900.00 was not for labor, or for “labor advanced”, but that it was in the nature of a loan, advanced by plaintiff to Heathman, knowingly, for the express purpose of discharging the Heathmans’ obligation under their contract for a deed, so that title to the subject real estate could be vested in them, thereby rendering those premises subject to a lien for the materials plaintiff proposed to sell. This finding is corroborated by plaintiff’s own admission contained in the statement of facts set out in its brief and quoted as follows: “It was agreed that the money paid Mr. Heathman would be used to pay the balance of the purchase price for the house, which was done. * * * On January 30 (1960), $1,900.00 was paid by plaintiff to defendants Heathman and used to pay the balance on the land purchase contract”.

The rights of the parties here are governed by Chapter 429 V.A.M.S., a body of statutory law creating a species of lien in favor of persons who have performed work or furnished material in and for the erection or improvement of a building. Our lien statutes are based on and justified by the principle that those who have contributed labor or material to the improvement of property are entitled to look to the property for compensation. The lien statutes are said to be “equitable in their purpose or to have an equitable basis” and, that “their aim and purpose being to do substantial justice between the parties, and accomplish what a court of equity could not do.” Johnson v. Brill, Mo.Sup., 295 S.W. 558.

The provisions of the mechanics’ and materialmen’s lien statutes are remedial in nature and are given a liberal construction by Missouri courts to carry out their just and beneficial purposes. Nonetheless, since the lien is purely a creature of statute, the policy of liberal construction does not relieve the lien claimant from the necessity of reasonably and substantially complying with the requirements of the statute in order to secure its benefits. Wadsworth Homes Inc. v. Woodridge Corporation, Mo.App., 358 S.W.2d 288. A stricter construction of the lien statutes will be maintained where the rights of third persons, as subsequent purchasers, are affected by the lien claim. Rail Bros. v. McCrary, 45 Mo.App. 365; DeWitt v. Smith, 63 Mo. 263.

Section 429.010 V.A.M.S. creates the right to a mechanics’ lien by providing that, “Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any material, * * * for any building, erection or improvements upon land, * * * shall have for his work or labor done, or materials, * * * furnished, a lien upon such building, * * * and upon the land * * *

The requisite foundation step for the enforcement of a lien claim is prescribed by Section 429.080 V.A.M.S., which makes it the duty of every person seeking the benefit of the lien law to file “a just and true account of the demand due * * * which is to be a lien upon such building * * * A substantial compliance with that requirement is a condition precedent to the right of a lien claimant to maintain his action and to fix a lien upon the property. In Gill v. Harris, 224 Mo.App. 717, 24 S.W.2d 673, we said, “ * * * it must be conceded that ‘a just and true account’ is the foundation of the right to maintain the suit; and that an unjust and untrue account, knowingly made, forms no basis for a lien, and no foundation for a cause of action to enforce it, but vitiates the entire right of lien. (Citing cases.)” In view of these principles, our immediate inquiry is whether plaintiff’s lien statement is a “just and true account”.

We find no precise, all-embracing definition of a “just and true account” in the cases which have considered and ruled upon the question. Lien statements have variously been held to be “just and true”, or otherwise, as the facts peculiar to each case have warranted. However, certain fundamental rules have been consistently observed by the courts in determining the issue.

It is generally recognized that a lien statement may be regarded as “just and true”, so as not to vitiate the entire lien, even if it contains mistakes or errors of omission, and includes nonlienable items of charge, if those inaccuracies of fact are unintentional and are the result of honest inadvertence, accident, or oversight, and do not result from deliberate intention or design. As the court said in Woodling v. Westport Hotel Operating Co., 227 Mo.App. 1231, 63 S.W.2d 207, “If it is shown that the filing of an inaccurate lien was the result of inadvertence and mistake, there being no intention or desire to defraud, the lien will be upheld.” Also see Miners Lumber Co. v. Miller et al., Mo.App., 117 S.W.2d 711; and Hydraulic Press Brick Co. v. McTaggart, 76 Mo.App. 347.

On the other hand, it is equally fundamental doctrine that when nonlienable items are included in a lien statement deliberately, knowingly and intentionally, “then the account so filed may not be regarded as ‘just and true’ within the meaning of the statute, and can form no basis for the adjudication and establishment of a lien for any part of the account”. Reese v. Hoyer, Mo.App., 95 S.W.2d 884.

There is no fact or circumstance shown by any credible evidence to justify the inclusion of the $1900.00 cash item in plaintiffs lien statement. There is no testimony from any source whatsoever that any work or labor was ever done on the Heathman house by plaintiff or by any person on its behalf. Our finding that the $1900.00 was a cash loan naturally and necessarily induces our further finding that such item is foreign to the intended scope of the lien statutes. The plain language of Section 429.010 can not be interpreted to mean that cash advances are lienable. Even under plaintiff’s theory of the transaction—that the $1900.00 was advanced to pay Heathman for future work on his own house (an hypothesis we do not accept as fact)—the item would not have been lienable. “A mechanic’s lien ordinarily may not be acquired for money lent or advanced to a contractor or other person to enable him to purchase material for, or pay for labor upon, a building or other improvement.” 57 C.J.S. Mechanics’ Liens § 47, page 539. Also see Feeny et al. v. Rothbaum, 155 Mo.App. 331, 137 S.W. 82; Gill v. Harris et al., 224 Mo.App. 717, 24 S.W.2d 673. We rule that the account entry of $1900.00 is a non-lienable item and was improperly included in the lien statement.

Plaintiff’s inclusion of the $1900.00 charge in the lien statement must be considered as intentional. At no time has plaintiff claimed that the item was included by mistake or through inadvertence. It was inserted in the petition as well as in the account of demand. Although plaintiff deleted certain admittedly improper items at the beginning of the trial (all of insignificant amount) it made no move to delete the $1900.00 charge. Throughout the entire trial plaintiff contended that it was proper and lienable. Plaintiff still so contends at this hour. Nor are we willing to say that plaintiff’s inclusion of the $1900.00 item in the lien statement was prompted by innocent motives. The trial court found from the evidence that “both these parties knew that $1900.00 of it was to be used (and was used) to pay off the contract for deed * * * The same evidence has induced this court to make the same finding. It is, therefore, our inescapable conclusion that plaintiff deliberately, intentionally and knowingly falsified the $1900.00 item by labeling it “advance labor” when in fact it was intended and used for a different purpose.

Plaintiff attempts to demonstrate that the lien account is “true” because the cash items totalling $2000.00 were actually paid to Heathman. In its brief plaintiff says, “That these amounts were received by Mr. Heathman is nowhere controverted”. This argument has no merit. The truth or falsity of plaintiff’s lien statement is to be tested according to the validity of plaintiff’s account against the building, as distinguished from the account for which Heathman was personally liable.

We further believe that plaintiff’s Hen statement is “unjust”, as well as “untrue”. By including the nonlienable cash advance of $1900.00 in the lien account filed, and prosecuting this suit thereon, plaintiff has wrongfully burdened the responding defendant’s property. The pend-ency of the lien claim is an encumbrance on the real estate, and would tend to depreciate the market value and salability of the property affected. The defense of the claim has entailed unwarranted trouble and expense. Home Savings has suffered substantial inequity at the hands of plaintiff.

We can not excuse the intentional inclusion of the $1900.00 in the lien account on the ground that plaintiff had the right to test the lienability of the item in court. There is no reasonably debatable question present in this case, either of law or fact, as to whether or not plaintiff was entitled to the $1900.00 credit claimed.

The mechanics’ lien law confers special rights upon the class of persons who perform labor and furnish materials. It demands in return a fair and reasonable compliance with its terms. The integrity of that law will not be preserved unless courts protect it from abuse and deliberate violation. In response to that duty, and in accordance with the evidence, we conclude that plaintiff has not complied with the statute in that its lien statement is not a “just and true account”, and has thereby forfeited its entire right to a lien.

With respect to the $100.00 item which we have referred to above, we say only that it is nonlienable. In view of our holding that the entire lien is vitiated by the inclusion of the $1900.00 charge, it has become unnecessary to prolong this opinion by any further reference to the $100.00 transaction.

Accordingly, we affirm the judgment insofar as it denies plaintiff’s lien claim for labor in the sum of $2000.00, and reverse that portion of the judgment decreeing a special lien upon the real estate to the extent of $2,277.45 for materials furnished and used.

All concur.

      . Also see: Herrman v. Daffin, Mo.App., 302 S.W.2d 313, 317; 57 C.J.S. Mechanics’ Liens § 1a, p. 492.

      . Also see State ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; Gill v. Harris, 224 Mo.App. 717, 24 S.W.2d 673; Holekamp Lumber Co. v. Skay, Mo.App., 65 S.W.2d 669; Sechrist v. Huffy Rock Asphalt Co., Mo.App., 63 S.W.2d 193.


author: MOREMEN, Judge.

text:
    Glen WHITAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 10, 1963.
    Edward F. Prichard, Jr., Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appel-lee.
   MOREMEN, Judge.

Appellant, Glen Whitaker, was convicted of the offense of false swearing (KRS 432.170) and sentenced to one year’s confinement in the penitentiary. He requested immediate judgment following his trial and waived right to file motion and grounds for a new trial. No bill of exceptions is in the record although a transcript of the entire record has been filed. In the absence of a bill of exceptions, the only question before the court is whether the indictment states a public offense. Duncan v. Commonwealth, Ky., 330 S.W.2d 419. A demurrer had been filed to the indictment and was overruled by the court.

KRS 432.170 reads:

“If any person, in any matter which is or may be judicially pending or which is being investigated by a grand jury, or on any subject in which he can legally be sworn or on which he is required to be sworn, when sworn by a person authorized by law to administer an oath, shall willfully and knowingly swear, depose or give in evidence that which is false, he shall be confined in the penitentiary for not less than one nor more than five years.”

The indictment reads:

“The Grand Jury of Fleming County, in the name and by the authority of the Commonwealth of Kentucky, accuse Glen Whitaker of the crime of False Swearing committed in manner and form as follows, to-wit:
“The said defendant, Glen Whitaker in the said county of Fleming, on the 23rd day of October A.D. 1961, and before the finding of this indictment, having been duly sworn by a person authorized to administer oaths, to-wit: Anna McRoberts, deputy County Court Clerk, about a subject on which he could legally be sworn and on which he was required to be sworn, to-wit: an application for a marriage license and a marriage bond, did then and there unlawfully, wilfully, and feloniously swear that Betty Ferguson, the person whom he proposed to marry, was 21 years of age, that he was a construction worker, and that he resided in Dayton, Ohio, whereas in fact the said Betty Ferguson was only 14 years of age, the said Glen Whitaker was a school teacher residing in Elon, Ohio, and the falsity of all of which statements the defendant then and there knew. Contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky.”

We find nothing in Chapter 402 of the Kentucky Revised Statutes — which deals with marriage — that requires an application for a marriage license to be given under oath. One cannot be punished for false swearing under KRS 432.170 unless it is a matter which is judicially pending, under investigation or was given under circumstances where a person can legally be sworn or is required to be sworn. Mitchell v. Commonwealth, 237 Ky. 849, 36 S.W.2d 649.

The question arises, what is meant by the expression “he can legally be sworn” as used in the statute and in case opinions? The word “can” is most often used to indicate that a person is physically or mentally capable of performing a certain act, but we do not believe it was used in the statute in that sense. Some significance must be attached to the word, “legally,” which implies that he has been enabled by law to assume the formal solemnity of an oath. This view was taken in Kerfoot v. Commonwealth, 89 Ky. 174, 12 S.W. 189, where it was said:

“Though there appear to be three distinct conditions upon the existence of either of which a person may be convicted under that section, obviously it is necessary that the false swearing be in a matter on which the law authorizes or requires an oath to be taken, and, moreover, he must be sworn by an officer legally empowered to administer the oath.”

We believe the phrase, “law authorizes or requires,” as used in the opinion means expressly authorized or required by law. We are not unmindful of the fact that the powers of a notary were originally founded on custom and that the office was ecclesiastic in nature. In England notaries public were appointed by authority of the Pope until the statute of 25 Hen. VIII, Chapter 21. Since the passage of that statute they have been appointed by the Court of Faculties of the Archbishop of Canterbury. In this country, however, notaries are usually appointed by the Governor, sometimes with the consent or approval of the legislative body of the state. 39 Am. Jur., Sec. 17, et sequitur. Along with the assumption by the state of the powers to administer oaths, the state has also assumed the authority to prescribe matters about which an oath may be administered. Particularly is this so with relation to various public officers who are granted the right to administer oaths. Their duties in this connection are well defined by our statutes. This does not mean that officers and notaries may not administer oaths in cases where they have not been given direct positive expression of the right by a statute, but it seems certain to us that the legislature did not intend to punish for the offense of false swearing in such cases. Otherwise it would have been unnecessary to insert in this statute the qualification concerning “any subject in which he can legally be sworn or on which he is required to be sworn.” It would have been sufficient merely to state that anyone who gives an oath which is false is subject to punishment. This seems to have been the view in Commonwealth v. Bradshaw, 210 Ky. 405, 276 S.W. 124, where it was accused that the defendant had falsely made oath before the county clerk of Casey County that he saw one E. L. Carmen sign his name to a written order directing the clerk to issue a marriage license to his infant daughter. The court said:

“The authority of a party to testify and the county clerk to administer an oath with referenece to such a paper as here involved is found in section 2106 of the Statutes, (KRS 402.210), which provides for issuance of marriage licenses by the clerk to persons under 21 years of age only upon personal or written consent of the parents or guardian. The consent in writing must be over the signature of the parent or guardian, attested by two subscribing witnesses, and proved by the oath of one of them, administered by the clerk.’
“As it affirmatively appears from the indictment that appellee was not an attesting witness, it is clear he was not a competent witness to prove the execution of the paper, and that the clerk had no authority, under this statute, to examine him under oath with reference thereto.”

The court held that a demurrer to the indictment had been properly sustained.

When we return to a consideration of the facts in the instant case, we are forced to the conclusion that the deputy clerk had no legal right to require submission to an oath and that none was required by the statute.

The judgment is therefore reversed.


author: MONTGOMERY, Judge.

text:
    ALVA COAL CORPORATION, Appellant, v. Sherman EALY et al., Appellees.
    Court of Appeals of Kentucky.
    May 10, 1963.

      William A. Rice, Harlan, for appellant.
    Julian H. Golden, Pineville, for Sherman Ealy.
    J. W. Craft, Jr., Hazard, for Subsequent Claim Fund.
   MONTGOMERY, Judge.

The Workmen’s Compensation Board found Sherman Ealy to have “a permanent partial disability to the body as a whole of 85% resulting from his injury of June 9, i960,” awarded compensation accordingly against Alva Coal Corporation, and dismissed the claim against the Subsequent Claim Fund. The circuit court affirmed the action of the Board. The employer’s appeal presents the question of apportionment of liability between the employer and the Subsequent Claim Fund.

Ealy sought compensation from his employer for a back injury sustained on June 9, 1960. On motion of the employer, the Fund was made a party because Ealy had sustained another back injury prior to June 9, 1960.

Pursuant to KRS 342.121, a medical panel was appointed. The panel report contains the following findings:

“1. Date and nature of each injury suffered prior to date of June 9, 1960. Compression fracture of the body of lumbar-l June 1959 resulting in 15% permanent partial disability.
“2. Total percentage of disability which plaintiff was suffering immediately prior to date of June 9, 1960. 15% permanent partial disability.
“3. Percentage of disability resulting from injury of June 9, 1960, assuming that plaintiff had no disability prior to that time. None.”

The panel filed a subsequent report which contains the following:

“What I meant to imply by answering question 3 as ‘none/ it is my opinion that had this patient not had the first injury, the second injury would not have disabled him to any extent. It is very unusual to have a disc in the area of lumbar-l, however, it would appear that this is a very good explanation in this particular patient. I would think in this case probably we should add another question, titling this 3a; Percentage of disability resulting from injury of June 9, 1960, assuming that the patient had 15% permanent partial disability due to previous injury, 85%.”

Ealy was found to be totally disabled. The only medical witness testified: “In other words, if he had not had the first injury, he probably could have tolerated the second injury with very little permanent disability. Let me re-word that. He could have tolerated the stress precipitating that second injury very well.”

ICRS 342.120(1), as it existed at the time of both injuries, provided:

“If any employee who is permanently partially disabled, whether from a com-pensable injury or otherwise, receives a subsequent compensable injury by accident resulting in additional permanent disability so that the degree of disability caused by the combined disabilities is greater than that which would have resulted from the subsequent injury alone, and such employee is entitled to receive compensation on the basis of the combined disabilities, the employer shall be liable only for the degree of disability which would have resulted from the latter injury had there been no pre-existing disability. After the compensation liability of the employer, or his insurance carrier, if any, has been fully discharged, the remaining compensation to which such resulting condition would entitle the employee, less all compensation which the provisions of this law would have afforded on account of the prior disability had it been compensated for thereunder, shall be paid out of the Subsequent Injury Fund provided for in subsection (1) of 342.122 hereof.”

The first part of the first sentence of the statute prescribes the conditions under which the employer’s liability arises. When such conditions prevail, the extent of the employer’s liability is governed by the following:

“ * * * the employer shall be liable only for the degree of disability which would have resulted from the latter injury had there been no pre-existing disability.”

The effect of this part of the statute is to limit the liability of the employer to such disability as may be attributed to the second injury, exclusive of any disability arising or resulting from the first injury.

To illustrate, the employee may have suffered the loss of a leg or an eye as his second injury. The disability allowable against the employer would be the amount to compensate for such specific loss which should be determined first without regard to any previous disability. If, however, the employee had already lost a leg or an eye so that after the second injury he is without both legs or both eyes and thus totally disabled, the liability of the employer is limited to the amount of compensation allowable for the loss of the single leg or eye. The disability resulting from the combined injuries may be “greater than that which would have resulted from the subsequent injury alone” of which the employer is “liable only for the degree of disability which would have resulted from the latter injury had there been no pre-existing disability.”

In such case, the employer’s liability is fixed according to this standard. The Subsequent Injury Fund, now the Subsequent Claim Fund, would be liable for the degree of disability by which it exceeds the degree for which the present employer is liable plus “all compensation which the provisions of this law would have afforded on account of the prior disability had it been compensated for thereunder.” In other words, the Fund is liable for the amount by which the amount allowable for the combined disabilities exceeds the total of the two separate disabilities. To illustrate further, the disability attributable to the second injury may be 40%. The prior disability may have been found to be 35%, but “the degree of disability caused by the combined disabilities” may be 100%. In such case, the Fund would then be liable for the difference between 100% and 75%, or 25%. The effect of this is to afford relief to the employee for the combined disabilities without penalty to the employer since the surplus disability would be chargeable to the Fund.

In the present case, the employee is 100% disabled from the combined disabilities. The judgment and award are erroneous because the disability from the subsequent injury “which would have resulted * * * had there been no preexisting disability” was fixed at 85%. The method of determining such was in error since the amount of the first disability was subtracted from the combined disabilities. It was also wrong because the medical testimony describes it as very little or no permanent disability had it not been for the first injury and disability; hence, it would not be 85%. Thus, the case must be remanded for the purpose of fixing the amount of disability arising from the second injury without regard to the first disability. Once this disability is established, the Fund should be held liable for the excess of the degree of disability over and above the determined degree of disability for the second injury added to “all compensation which the provisions of this law would have afforded on account of the prior disability had it been compensated for thereunder.” It was error to dismiss the Subsequent Claim Fund.

It should be noted that no question is raised as to the correctness or propriety of fixing the degree of disability from the first injury at 15%.

The judgment is reversed for further proceedings in conformity herewith.


author: WADDILL, Commissioner.

text:
    William D. MEYERS, Director of Finance of the City of Louisville, Appellant, v. ARCADIA REALTY FOUNDATION, INC., et al., Appellees. ARCADIA REALTY FOUNDATION, INC., et al., Cross-Appellants, v. William D. MEYERS, Director of Finance of the City of Louisville, Cross-Appellee.
    Court of Appeals of Kentucky.
    May 10, 1963.

      Francis M. Thompson, Louisville, William T. Baskett, Louisville, amicus curiae, for appellant.
    Squire R. Ogden, Louisville, S. L. Greenebaum, Louisville, for appellees.
   WADDILL, Commissioner.

This case is a corollary to Arcadia Realty Foundation, Inc. v. Hoenig, Ky., 336 S.W.2d 571, determining (insofar as relative to an understanding of the instant appeal) that certain property located in the City of Louisville and owned separately by Arcadia Realty Foundation, Walton Realty Foundation and Gileen Realty Foundation was not exempt from ad valorem taxes under Section 170 of the Constitution of Kentucky. After a final determination of that case the Foundations filed the instant action seeking a declaration that they were not liable for statutory penalties and interest on the taxes assessed against them during the pendency of the former action. The circuit court adjudged that the Foundations were not required to pay the statutory penalties and interest but were liable for ordinary interest in the amount of 6% on these taxes. The City of Louisville appeals and the Foundations cross-appeal.

The crucial question is whether a court of equity can excuse a taxpayer from paying the penalties and interest imposed by KRS 91.430 upon a determination that the taxpayer believed in good faith that he was not liable for the taxes assessed against him. The City relies upon the general rule which would answer this question in the negative. See 51 Am.Jur., Taxation, Section 975. However, as pointed out by the Foundations, this Court has not accepted this rule but has specifically held that the good faith of the taxpayer could be considered in determining whether he should be relieved of such penalties and interest. Commonwealth v. Thomas, Ky., 298 S.W.2d 302; Commonwealth v. Cincinnati, N. O. & T. P. Ry. Co., 288 Ky. 43, 155 S.W.2d 460, 137 A.L.R. 301. The City attempts to distinguish the cited cases by arguing that the “good faith” rule is applicable only when the nonpayment of taxes is attributable to inadequacies and imperfections of the taxing system. The opinions of this Court demonstrate that such a limitation on the rule was not intended. Commonwealth v. Thomas, supra; Commonwealth v. Cincinnati, N. O. & T. P. Ry. Co., supra; Cf. Commonwealth v. Southern Pac. Co., 169 Ky. 296, 183 S.W. 925. Consequently, in this 'jurisdiction, a taxpayer is excused from payment of the penalties and interest imposed by KRS 91.430 when it is judicially determined that he has resisted payment of his taxes in good faith.

It was convincingly shown that the Foundations’ reason for not paying their taxes was neither frivolous nor unreasonable and that they acted promptly to have their tax liability determined. Under these circumstances, the circuit court did not err in finding that the Foundations had acted in good faith.

On their cross-appeal the Foundations urge error in assessing 6% interest on each tax bill. The circuit court relied upon Klein v. Jefferson County Board of Tax Com’rs., 242 Ky. 328, 46 S.W.2d 480, wherein we upheld a judgment imposing such interest, stating that “the highway through the court may not be voluntarily traveled to the destination of defeat without the payment of toll, nor may a litigant on his own volition pursue that route without incurring risks.” We have no doubt that the imposition of ordinary interest is a reasonable and proper charge for the retention and use of money subsequently determined to be owed the taxing authority. In Commonwealth v. Thomas, supra, relied upon by the Foundations, the court correctly refused to assess ordinary interest because the taxpayer, having paid tax bills issued to him by Hart County, did not have the use of the money later held to be owed to Edmonson County.

The City asserts that the circuit court erred in assessing interest from May 1, the date these taxes became delinquent rather than January 1, the first day they were due and payable. KRS 91.430. In support thereof the City relies on Klein v. Jefferson County Board of Tax Com’rs., supra, wherein ordinary interest was calculated from December 1, 1925. The statute in effect at that time (Carroll’s Statutes, 1922 Edition, Section 4148) made taxes payable on March 1, and delinquent on December 1. That case, as well as logic, supports the circuit court in assessing ordinary interest from the date on which the taxes became delinquent.

The judgment is affirmed on both the direct and the cross-appeal.


text:
    Alvin Sidney HOSKINS, Movant, v. Coleman WRIGHT, Judge, Shelby Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    May 10, 1963.

      Alvin Sidney Hoskins, pro se.
    Thomas & Thomas, New Castle, for respondent.
   MOREMEN, Judge.

Alvin Sidney Hoskins, a prisoner now confined under a life sentence in the Kentucky State Penitentiary at Eddyville, has filed an original action in this Court in which he asks that a writ of mandamus be issued to Hon. Coleman Wright, Judge of the 12th Judicial District of the circuit courts of this state, directing him to grant movant Hoskins a speedy trial in connection with felony indictments now pending against him in the Shelby Circuit Court and in the Oldham Circuit Court. He alleges that he did, on the 6th day of January 1962, file motion in both courts for a speedy trial and that no action has been taken on those. motions since that date. The response to the petition for mandamus states that Hos-kins stands indicted in both counties for a felony and admits that he had written from the Eddyville Penitentiary on about the 6th day of January 1962 asking for a trial. It is further stated that since the time of the request the charges have been called for trial, but the Commonwealth announced "not ready” and thereupon on motion of the Commonwealth the prosecutions were continued. The respondent prays judgment of the Court on the question raised on this proceeding.

Ordinarily mandamus will not lie to control a court in the exercise of its judicial discretion. However, regardless of the nature of the writ or its nomenclature, we are of opinion that movant should have some remedy under the powers granted this Court under Section 110 of the Constitution, particularly in view of the fact that movant has raised a constitutional question under the Bill of Rights of our commonwealth.

Section 11 of our Constitution provides that in prosecutions by indictment or information the accused shall have a speedy public trial by an impartial jury of the vicinage. Very little has been written by the Court in connection with this phase of Section 11. Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643, 24 Ky.Law.Rep. 1434, involves facts where the accused was indicted and the case set for trial. After-wards it was continued by consent until the next term. When it was called for trial, the commonwealth’s attorney announced that he was not ready and moved the court to discharge the witnesses and the accused from his bond, and to file the indictment away with the right to reinstate it on the commonwealth’s motion. The motion was sustained over the accused’s objection, and insistence on a trial or dismissal. The Court, when commenting on this part of Section 11, said the guaranty is for the protection of the citizen and no rule of practice, however ancient or sacred, should deprive him of it.

In this same opinion the Court was faced with the problem of whether mandamus or injunctive relief would lie to control the circuit court in the exercise of its judicial discretion, and concluded that failure to grant to the accused a speedy trial, because of procedural difficulties, would amount to a denial of justice.

We have concluded that in this case movant, Alvin Sidney Hoskins, is entitled to as speedy a trial as will be consistent with the ends of justice and his motion for such relief is granted. The trial court is directed to docket the case for trial as speedily as will be consistent with the ends of justice and in the event the commonwealth is not prepared and fails to disclose sufficient reasons for a continuance, the indictment should be dismissed.


author: STANLEY, Commissioner.

text:
    Donna DeMyer DALTON (Yuill), Appellant, v. K. P. DALTON, Jr., Appellee.
    Court of Appeals of Kentucky.
    May 10, 1963.

      W. C. Tipton, Hickman, R. P. Burcham, South Fulton, Tenn., for appellant.
    James H. Warren, Fulton, for appellee.
   STANLEY, Commissioner.

The principal question is whether a father should be exonerated of contempt of court for failing to comply with a judgment requiring monthly payments to his children’s mother for their support because she had violated the terms of the judgment relating to their custody. There are two subordinate jjtrdstions.

In October, 1953, a judgment granting a divorce to Donna D. Dalton from K. P. Dalton, Jr. awarded custody of their two children, then 3 and 6 years old, to the mother with the qualified right of visitation by the father. He was ordered to pay her not less than $75 a month for the children’s maintenance. The question of future support was expressly left ;open. The mother was given the right to remove the children from the jurisdiction of the court.

In May, 1955, on a hearing of the mother’s motion for a rule of contempt for nonpayment of the sums adjudged, the court exonerated the father on the ground that he had shown reasonable cause, and found no reason to modify the custodial judgment.

The present proceeding was instituted by another motion for a rule of contempt against the father for subsequent nonpayment of the support awards. The defendant responded with numerous excuses and reasons. Upon a hearing, the court dismissed the rule and modified the judgment to provide in the future (1) monthly payments of $37.50 for each child until he becomes 18 years of age, the same to be paid by the father to the clerk of the court and transmitted by him (less legal fees) to the mother while they are in her custody; and (2) the mother should have custody of the children except for six consecutive weeks in each year during the school vacation. The order provides that the father shall bear the cost of transporting the children to and from their mother’s home in Nevada.

The basic facts are that both the father and the mother remarried in February, 1955. She bears the surname of Yuill. She has lived and had the children since remarriage in Nevada. While the father has been variously employed and has lived in several places since his first marriage and divorce, it appears that he has kept up his home ties, and at the time of this hearing was living in Fulton County, Kentucky.

The trial court recited in a findings of fact that the amount of the father’s payments was in dispute and that “apparently his contributions have been in clothing and gifts of various kinds.” The court recited the many asserted defenses to the contempt rule but found only two specific facts. One is that the children go under the present name of their mother, Yuill, and are not known in their own community as Daltons. The other is that the mother did not let the father see his children on the “excuse” that he came to her home drunk, and she had to have him arrested. He was not punished on condition that he leave Nevada and stay away for a year. The court made no specific finding as to whether the provision for payment of $75 a month had been or had not been complied with, but adjudged that the father should not be held in contempt for his failure to support these children, as the plaintiff was also guilty of violating the terms of the judgment.

Guilt of contempt is implicit in the court’s decision, although the basis of the finding is not clear. It is certain that the father had paid but little money to the mother during the years; and in the absence of her agreement to accept clothing or other gifts by the father or the children’s grandparents in substitution, the father was not entitled to be credited with their value. Campbell v. Campbell, 223 Ky. 836, 4 S.W.2d 1112; Williams v. West, Ky., 258 S.W.2d 468. It may be observed, however, that a case may arise where in the application of equitable principles regard should be had for substitutional expenditures by the father for the benefit of the children. Cf. Campbell v. Campbell, 209 Ky. 571, 273 S.W. 26; 17A Am.Jur., Divorce and Separation, § 876; Bradley v. Fowler, 30 Wash.2d 609, 192 P.2d 969, 2 A.L.R.2d 822. In the present case the gifts and clothing furnished were insignificant in value.

The accruals of unpaid support payments, it was claimed by the mother, amounted to more than $4,500. The father claimed it was much less. In accord with a majority of the jurisdictions, we hold that unpaid periodical payments for maintenance of children, like that for alimony, become vested when due. The accrued sum of delinquencies is a fixed and liquidated debt, and the court has no power to modify the judgment as to it. Boehmer v. Boehmer, 259 Ky. 69, 82 S W.2d 199; Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68; Spencer v. Spencer, Ky., 312 S.W.2d 360; Knight v. Knight, Ky., 341 S.W.2d 59. It is to be noted that in this case the trial court did not expressly relieve the father of liability for these arrears, although the effect of the modified decree seems to have been to start anew. If he was unable at any time to have complied with the order, he could have sought relief on that ground. That he did not do. On this hearing he introduced some evidence to that effect, based on physical disability, unemployment and low earnings; but, in our opinion, it was not sufficient to meet the requirements of the law. As a general rule, inability of a father without fault on his part to make the payments adjudged for support of his children is a defense to a charge of contempt. But the burden is upon him to make that condition clear. Hembree v. Hembree, 208 Ky. 658, 271 S.W. 1100; Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517. With respect to the accrued deficiencies, Dalton testified he was not able to pay the sum, but that it was possible that he could borrow the money from his father and a bank and pay it.

We think it clear that the father had violated the order of court without showing legal excuse and was subject to being adjudged in contempt. Indeed, as stated, that is implicit in the court’s finding; but the court declined to hold the father in contempt because the mother was also guilty of violating the terms of the judgment. The reasons for this conclusion are not clear. Reference is made in the findings that the mother had removed the children from the jurisdiction of the court. But that was permitted by the original judgment. Other reasons indicated are that the mother had violated the father’s visitation rights and would not permit them to visit him; also, that she had enrolled the children in school under the name of Yuill instead of their true name of Dalton, and they were known as Yuills in the community in which they lived.

Whatever infractions of the custodial judgment there may have been on the mother’s part, the children should not be deprived of their natural and legal right of support from their father on account of the dissensions of their parents for causes of which they are innocent (Cf. Campbell v. Campbell, 213 Ky. 621, 281 S.W. 800), and the father may not evade his obligation to support his children on the ground of such dissensions.

Disobedience of the judgment by the mother — whatever may he the effect as a consideration for modifying the order of future custody — cannot be allowed to prejudice the rights of the children retrospectively. Ordinarily, the mother’s violation of the provision of the order concerning visitation rights is not a defense to a charge of contempt based on the father’s failure to pay child support. 27B C.J.S. Divorce § 322(2), p. 702; 17A Am.Jur., Divorce and Separation, § 875. On this matter of a mother’s contumacy generally, the authorities are not in complete agreement; but the facts of a particular case would seem to be controlling. Annotations, 105 A.L.R. 901, 172 A.L.R. 869, at page 888. We held in Spencer v. Spencer, Ky., 312 S.W.2d 360, that a father may not on his own initiative cease making monthly payments to his wife for the support of their children when she moved to another state arid took the children with her. See also Beutel v. Beutel, 300 Ky. 756, 189 S.W.2d 933.

The conclusion of the whole matter is that the court should have adjudged the respondent father in contempt. As well-said in 17A Am.Jur., Divorce and Separation, § 873, “There are, however, two types-of contempt and two types of commitment in contempt cases, which may be described as ‘process’ or enforcement commitment to secure present compliance with an order for support, and a punitive commitment as punishment for a past offense. If, for example, the father is able to pay now but refuses to do so, he may be committed to jail until he complies with the decree; this is a device to enforce payment. But if the father was once able to pay and refused to do so, or if he is now able to pay arrears but refuses to do so, the court may imprison him for a definite period of time as punishment.” Our case of Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517, is in accord. See also Barrett v. Barrett, 287 Ky. 216, 152 S.W.2d 610; Gibson v. Stiles, Ky., 240 S.W.2d 609.

It is generally recognized that the court may conditionally sentence a father found guilty of contempt in these matters, allowing him a reasonable time within which to purge himself by paying arrears in installments or otherwise. 27B C.J.S. Divorce § 262, p. 123.

Considerable time has elapsed since the trial of this case, and, doubtless, related circumstances and conditions have changed. Because of that, the case may be reopened for further proof and decided in accordance with present conditions. While the court is without authority to modify or cancel vested rights in the accruals of unpaid maintenance money, the matter of equitable and appropriate remedy and punishment for having previously failed to comply with the court’s order is within the exercise of the sound discretion of the court. Roper v. Roper, supra; 27B C.J.S. Divorce § 321(6), p. 664; 17A Am.Jur., Divorce and Separation, § 873.

We turn to the two subordinate questions raised on the appeal.

The appellant argues that in the absence of an allegation of a change in conditions, the court had no authority to act on the father’s motion to modify the custodial arrangements. Broad statements in some opinions indicating that modification could be made on pleadings and proof are not decisive of the particular question. Even under the restricted rules of pleading of the former Civil Code, it was held that where a parent had notice that the matter of custody of the children would be brought before the court, the court, under its equitable, as well as statutory, powers with respect to the custody of children, had authority even on its own motion to enter an order concerning custody. KRS 403.070; Shallcross v. Shallcross, 135 Ky. 418, 122 S.W. 223; Campbell v. Campbell, 209 Ky. 571, 273 S.W. 26. In this case evidence was heard on the general matter of the children’s custody and the change in conditions of the parents. Under present liberal rules of procedure, CR 8.01, 8.06, the point is not tenable.

The modified judgment providing for the periodical payment in support of the children until each child becomes 18 years of age was improper. Under ordinary circumstances the father’s responsibility for the maintenance of his children continues during their minority until they become 21 years of age. The •court should not, therefore, have decided so far in advance that the support should be discontinued. Fitzgerald v. Fitzgerald, 285 Ky. 404, 148 S.W.2d 286; Sandlin v. Sandlin, 289 Ky. 290, 158 S.W.2d 635; Whitaker v. Whitaker, 298 Ky. 590, 183 S.W.2d 623. This rule is not affected by the fact that under the constitutional amendment of 1955 (§ 145) one may vote when he becomes 18 years of age.

The judgment is reversed for proceedings consistent with this opinion.

Reversed.