author: PER CURIAM.

text:
    Leona Nell JAFARIAN-KERMAN, Appellant, v. Mohammed Resa JAFARIAN-KERMAN, alias Jeff Kerman, Respondent.
    No. 24878.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Motions to Modify Opinion and for Rehearing Denied Feb. 5, 1968.

      Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
    Raymond W. Eckles, Maryville, for respondent.
   PER CURIAM.

The plaintiff-appellant, having prevailed in her action for divorce, child custody, support and maintenance and attorney’s fees and costs, sought additional relief touching certain excluded evidence, additional attorney’s fees and a judgment of contempt against defendant-respondent. She appeals from the court’s refusal to grant her such additional relief.

A motion to affirm the judgment of the court and to dismiss the appeal was filed by defendant-respondent, which this court took under advisement with the case. Since the disposition of the points raised in the appeal disposes of the grounds of the motion, the same will be considered in the appeal and the motion to affirm and dismiss the appeal is hereby overruled.

For convenience the parties plaintiff-appellant and defendant-respondent will hereinafter be referred to respectively as plaintiff and defendant. According to the petition and proof the parties had married in 1960 and separated in 1966. They had one child, Steven, aged four years at the time of trial. Plaintiff had become pregnant again but the child of that pregnancy had died shortly after the bringing of the divorce suit. The petition alleged a course of indignities and cruel treatment of plaintiff on defendant’s part. The prayer sought a decree of divorce, allowances for support and maintenance, custody of the child Steven, attorney’s fees, suit money and costs.

On the same day the petition was filed, plaintiff filed a motion for temporary custody of her child, Steven, and prayed for a temporary restraining order against the defendant, based on allegations of threats by defendant to kill her if the divorce action were pursued. The order sought was to restrain defendant from threatening plaintiff or in any way disturbing the peace or property of the plaintiff or inflicting any bodily harm upon her or her said child Steven, or interfering with her enjoyment of any premises which she may ■occupy.

The above motion was sustained. The court’s orders included a restraining order and temporary injunction as prayed, effective upon the filing of a $100 bond by plaintiff, which was accordingly filed and approved on the same day.

Defendant engaged counsel and filed answer and cross-petition in the cause, charging plaintiff with association with other men, alleging vicious conduct on her part toward defendant and their child; that she had appropriated much of the joint funds and property of the parties, and that she had threatened his arrest and assault if he filed for divorce. To this pleading plaintiff filed reply, denying the charges made by defendant and filed a motion for temporary alimony.

Both parties appeared in person and by counsel at the hearing on plaintiff’s motion for the temporary orders. On that motion the court awarded plaintiff $40 per week for her support and $200 temporary attorney’s fees, granted her temporary custody of the child, Steven, with visitation privileges to the defendant to take the child on Friday, September 23, 1966, at 4:00 p. m. and to return him to plaintiff at 4:00 p. m. the next day and likewise each week thereafter during such corresponding days and hours.

On October 31, 1966, plaintiff filed a motion, alleging that defendant had received custody of the child, Steven, on October 28, 1966, under the privilege awarded him, but had failed to return the child since or to communicate with plaintiff, and that the whereabouts of the defendant and the child were unknown to her; that she was then again in a pregnant state and caused to suffer nervousness and distress over the situation; that defendant had willfully disobeyed the mandate of the court in the premises. The motion prayed that defendant be adjudged in contempt of court and punished therefor; that the defendant’s visitation rights granted him he terminated and that he be ordered to return the child to plaintiff. The motion sought additional attorney’s fees to be incurred in the investigation of the child’s whereabouts.

On the same date the court issued its order on defendant to appear on November 2, 1966, and to show cause why he should not be adjudged guilty of contempt of court and punished accordingly for willfully disobeying the orders of the court as described in a copy of the motion of plaintiff therefor, attached. The sheriff’s return on the order to show cause showed failure to serve the same because, after diligent search, defendant was not found in his county.

Plaintiff filed a memorandum with the court, advising it of her intention, at the trial of her divorce case, to call as her witness defendant’s attorney of record, on the sole matter of his knowledge of defendant’s whereabouts, citing authorities for the court’s consideration.

Thereupon the court issued its order of attachment, commanding the sheriff to attach the child, Steven, if he might be found in his bailiwick, and keep him so that he could appear in plaintiff’s case.

At the trial of the divorce case plaintiff appeared in person and by attorney and defendant appeared only by his attorney. Plaintiff’s attorney advised the court that he intended also to take up the matter of the pending motion to find defendant guilty of contempt and to punish him therefor. The court inquired: “Do you have service?” To this plaintiff’s attorney said: “It is not necessary”. Asked by the court for any comments, defendant’s attorney stated: “My client is not here — he is out' of the United States. The matter arose after he left the country and no service, I am sure, has been had. I think we would have to have service”. He said he had no objection to proceeding with the divorce action.

Plaintiff introduced, without objection, an unserved warrant issued by a magistrate for defendant’s arrest on a charge of “enticing away of a minor child”, and a felony complaint issued on the order of the plaintiff, charging him with fraudulent, forcible and malicious removal of plaintiff’s child in violation of the order of the court. The plaintiff then testified generally to the grounds alleged in her divorce petition, tending to sustain the same, not necessary here to state. In the course of her testimony she introduced, without objection, a copy of a letter from the defendant to his attorney of record, who had sent the copy to her. It was dated November 1, 1966, at Munchen, Germany. She had used it in connection with her investigation of the whereabouts of her child, Steven, conducted for her by New York attorneys. She said defendant’s attorney had sent it to her but had admitted it was not a complete copy. The letter stated that defendant and the boy had left the United States October 29, 1966; that they were going to leave Germany and go to some other country; that the child was well and happy; that counsel should tell plaintiff to keep her lawyer out of the matter and if so, he would agree to pay her $500 for “four terms”, or $125 every three months for five years and no more; that he would pay her attorney $100 and would pay $150 for medical expenses this time and no more; that she should be told that if she did not agree to the above she “would not see me or Steven ever”, and if she tried to cause him any trouble they would go to some foreign country where nobody could do anything about their matters. The letter stated plaintiff could proceed with the divorce on the above terms, and suggested that plaintiff, before the divorce, obtain from the United States Immigration office a “waiver” of his return to the United States.

Plaintiff also introduced in evidence a bill from the New York attorneys for $475 for services in connection with the investigation of the whereabouts of plaintiff’s child, Steven. In that connection she stated that investigation showed that defendant took the child on a Friday in October, 1966, and on the next day telephoned plaintiff’s stepfather that he would be a little late returning the child as he was having trouble with his car.

Defendant’s counsel was called as a witness in the trial of the divorce action. He identified the copy of the letter to him from defendant dated November 1, 1966, which copy he had sent to plaintiff. He stated that it was not complete; that he had received three letters from defendant, dated respectively, on November 1, November 18, and December 26, 1966. He said the letter of November 18, contained an address “more or less general”. When asked what that address was, he said: “At this point I claim attorney-client privilege”. The court sustained his claim of privilege. The counsel for plaintiff argued that defendant had been shown charged with felony, was a fugitive from justice and that his counsel could not claim an attorney-client privilege. The matter was discussed at length by the court and plaintiff’s counsel, but the ruling remained unchanged.

Being recalled to the witness stand, plaintiff testified as to her lack of sufficient funds for support of herself and child, if the child be returned, and her need of funds to pay her attorney’s fees. Upon inquiry by the court, her attorney said his fees should be $1,000, less $200 already paid to him. He outlined his various services in the case, including the matter of defendant’s removal of the child and investigation of its whereabouts. He said he understood defendant’s income to be $100 a week. He said defendant’s counsel had shown him defendant’s letter of November 1 and that he had seen in said counsel’s possession a letter from defendant dated November 18. He said defendant’s counsel told him that defendant at that time was in Germany.

The court asked defendant’s counsel his opinion of the amount plaintiff’s attorney’s-fee should be and counsel said: “I should say $500.00”.

The decree of the court awarded plaintiff a divorce, granted her full custody of her child, Steven, allowed her $20 per week for support of the child, $300 additional attorney’s fees and a judgment for $475 gross-alimony and costs. The court specifically decreed that defendant should have no further right of visitation of the child, Steven, until further order of the court.

The plaintiff’s attorney thereupon urged the court to include in its decree a finding that defendant was guilty of contempt of court, of which he might purge himself by presenting himself in court at a specified, time. Defendant’s counsel stated: “I do> admit he is not in the jurisdiction of this-, court and that he did violate the court’s order and I stop there”. The court said! defendant’s counsel had suggested to the court that the decree include a finding that the defendant was in contempt and to mete out an appropriate punishment but, the court said, “He doesn’t know whether his client has some defects, such as insanity, or an illness that caused him to go into contempt”. The judge said he was in doubt as to whether the court could make a valid order upon the motion to show cause since there had been no service of notice of the order. The motion for the court to issue a citation for contempt was then overruled. The court then related a conversation had in his chambers with defendant’s counsel wherein the latter expressed regret over his client’s disappearance and tendered his best efforts to do whatever he could to persuade defendant to return.

Defendant filed no brief in this appeal nor did his counsel personally appear when it was set for argument. His counsel did, however, file in this court defendant’s motion to affirm the judgment and to dismiss the appeal, as we have noted.

Plaintiff’s first point of error is that the court improperly excluded material evidence of the whereabouts of the defendant, sought to be elicited from the testimony of defendant’s counsel at the trial. As we have stated, the attorney for defendant admitted having received three letters from defendant in Germany since the latter’s departure, in one of which was an address given “more or less general”. When asked what that address was, he claimed privileged communication between attorney and client. His contention was sustained by the court.

It is provided in Section 491.060, RSMo 1959, V.A.M.S.:

“The following persons shall be incompetent to testify: * * * (3). An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client; * * *

Plaintiff cites Supreme Court Rule 4.41, V.A.M.S., which reads as follows:

“When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel, so that they may take appropriate steps”.

So far as Rule 4.41 applied to the instant situation, it will be recalled that defendant’s counsel did inform both the court and the plaintiff of defendant’s departure, of his general whereabouts in Germany, of the well-being of the infant child, of defendant’s proposals for the disposition of the divorce matters, and that counsel did offer to the court to do whatever he could to persuade defendant to return. He reserved only the exact location of his client, presumed to have been shown in one of the letters received by him from the defendant.

The question with which we are here confronted is whether, under all the circumstances in evidence, the knowledge of defendant’s attorney of the address of defendant, as communicated by defendant to counsel by letter, is privileged within the provisions of the rule and statute aforesaid.

The general rule of privileged communications existing between attorney and client is stated by the Supreme Court of Missouri in Gebhardt v. United Railways Co. of St. Louis, 220 S.W. 677, 679, as follows :

“It is true that after a crime has been committed the accused or guilty person may freely consult and even disclose his guilt to his attorney, in order to prepare his defense. In such circumstances, the law puts the seal of secrecy upon such communications. But neither under our statute, R.S.Mo.1909, § 6362, nor at common law, of which said statute is simply declaratory, can a person employ an attorney for the purpose of aiding and abetting him in the commission of a future crime or fraud, and thereby seal the lips of his lawyer to secrecy and thus prevent the exposure or detection of such crime or fraud. The privileged communication may be a shield of defense as to crime already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society”.

The Gebhardt case was cited and applied in Burger v. Crocker, Mo.App., 392 S.W.2d 640, 641.

The evidence in the instant case will not justify a conclusion that defendant’s counsel was employed by defendant to aid and abet him in the commission of any crime or fraud then contemplated. In fact, the record tends to show the contrary.

It will be noted that the statute (now Section 491.060, RSMo 1959, V.A. M.S.) referred to- by the Supreme Court in the Gebhardt case, supra, was construed by the court therein to he merely declaratory of the common law rule. The general rule, as applied more particularly to the present case, is stated as follows:

“If the client’s residence has been concealed, or if the client is hiding for some reason or other, and the attorney knows his address only because the client has communicated it to him confidentially as his attorney for the purpose of being advised by him, and has not communicated it to the rest of the world, then the client’s address is a matter of professional confidence, which the attorney may not be required to disclose”. 97 C.J.S. Witnesses § 286, p. 812.

That such privilege applies to letters passed between attorney and client is ruled in Ex parte Schneider, Mo.App., 294 S.W. 736, 738. In that case the court also considered the statute referred to as merely declaratory of the common law rule of privileged communications, which rule, it was said, should be construed with reference to the policy supporting it, namely, to secure all men in the full enjoyment of their civil rights. As such, the court said, the rule is subject to certain exceptions (1. c. 738, 739) such as plaintiff’s knowledge of a suit pending against him, pretrial examination, security for costs, fixing the venue, jurisdiction, service of order to pay costs, counsel fees and alimony pendente lite, and “to obtain service of an injunction in aid of the administration of justice”.

Several facts obtain in the case at bar which bear upon the applicability herein of the rule of privileged communications between attorney and client. Defendant, under his pleadings, was himself seeking an award of custody of the child, Steven. He was under a restraining order of the court prohibiting him from inflicting any bodily harm upon the child or disturbing the peace of the plaintiff. He sought and obtained an order of the court granting him limited custody of the child pending the divorce suits. The child had become a ward of the court, to become subject to the court’s final decree in the proceedings. Gaining possession of the child under his privilege, he left the United States surreptitiously, taking the child with him to Germany at some address unknown to the plaintiff or the court. Such conduct of the defendant was a malicious and wanton infraction of the court’s orders and a brazen obstruction of the administration of justice.

That the statute and rule of privileged communications between attorney and client are subject to exceptions under certain conditions is generally so construed in many jurisdictions, as reviewed in 114 A. L.R. 1328. In a very early case in this court, in an opinion by Judge Ellison, the rule in its historical aspects was reviewed and it was ruled that “if the client consults the.lawyer with reference to1 the perpetration of a crime, and they co-operate in effecting it, there is no privilege. If he refuses to be a party to the act, still there is no privilege, because he cannot properly be consulted professionally to aid in the perpetration of a crime, and a case of fraud should fall within the same rule”. Hamil & Co. v. England, 50 Mo.App. 338, 346. Where the mother of two children, wards of the court, had absconded with them and concealed her address, but had communicated the same by letter to counsel, the communications were ruled as not privileged under the rule. Ramsbotham v. Senior (1869) L.R. 8 Eq. (Eng.) p. 575.

Holding that the statute in question is subject to exceptions, the Supreme Court, in an opinion by Judge Gantt, ruled that it is merely declaratory of the general rule, “and in no manner affects the exceptions to the general rule excluding such communications. * * *. It has no reference to communications by a client to his attorney in furtherance of a crime or fraud. * * *. The reason on which the rule is said to rest cannot include the case of communications criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice and to the administration of justice”. State v. Faulkner, 175 Mo. 546, 75 S.W. 116, 132. The question is a legal one for determination by the court. Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 21; Hull v. Lyon, 27 Mo. 570. In Hickman v. Green, 123 Mo. 165, 22 S.W. 455, 458, 29 L.R.A. 39, the court, considering privileged communications between attorney and client, said: “The privilege does not extend to, nor shelter, advice concerning, nor assistance in, proposed infractions of the law. (citations)”.

We hold that, under the circumstances shown of record, the address of defendant as supplied by his letter or letters to his counsel was not privileged communications within the purview of the rule-and statute aforesaid. The court accordingly erred in declining to require defendant’s counsel to disclose by his testimony, his information of the defendant’s precise whereabouts.

Plaintiff’s second point of error is that the court abused its discretion in limiting plaintiff’s allowances of additional attorney’s fees to $300. That allowance, plus a previous allowance of $200, made a total fee of $500. Plaintiff’s counsel outlined to the court a lengthy and detailed statement of the services he had rendered plaintiff and his estimate of $1,000 as their reasonable value. The opinion of the defendant’s attorney was asked for by the court and was considered by it. It was stated in Agnew v. Johnson, 352 Mo. 222, 176 S.W.2d 489, 493:

* * * courts are themselves experts on the question of attorneys’ fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees without the aid of evidence”.

The same language was adopted in Gross v. Gross, Mo.App., 319 S.W.2d 880, 886. See also Fisher v. Peterson, Mo.App., 240 S.W.2d 176. The allowance on its face does not appear unreasonable. The point is overruled.

The plaintiff’s third point of error is that the court erred in refusing to rule defendant in contempt of court and in overruling plaintiff’s motion to that end. As shown by the record, the matter of temporary restraining order was first introduced in the case by plaintiff’s motion filed with her divorce petition, in which motion she sought temporary custody of the child, Steven, and a restraining order preventing defendant from disturbing her and her temporary custody of their child, and which motion was sustained by the court upon the filing of plaintiff’s bond, which was approved. As a further part of the divorce case as we have noted, the defendant in his answer and crossbill, asked for the custody of the child. Thereafter plaintiff moved for an order of temporary alimony and other relief, on which the court, among other things, granted plaintiff temporary custody of the child, with visitation privilege to the defendant, as shown.

Upon plaintiff’s motion then filed, alleging defendant’s violation of the court’s previous order of child custody and her prayer for a finding of contempt of court on defendant’s part, the court issued its order upon the defendant to appear and show cause why he should not be found guilty of contempt. For want of service of the notice to show cause, the court declined to make any further orders or findings on the charge of contempt.

The contempt charged in the present case is a constructive civil contempt defined as * * * where a person fails or refuses to do something which he has been ordered to do, or has done something he has been ordered not to do for the benefit of the opposite party to a cause. In civil contempts the object of the punishment is for the purpose of coercing the performance of an act remedial in its nature”. Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 996, 15 L.R.A.,N.S., 389. See also Bender v. Young, Mo.Sup., 252 S.W. 691, 693. It is distinguished from a direct contempt in that the contempt complained of in direct contempt takes place in the presence of the court in defiance of the power and authority of the court. See State ex rel. Chicago, B. & Q. R. Co. v. Bland, 189 Mo. 197, 88 S.W. 28; 17 C.J.S. Contempt § 3, pp. 8, 9; Curtis v. Tozer, Mo.App., 374 S.W.2d 557.

A question of jurisdiction here arises which the court must first consider, even of its own volition. Does the trial court’s failure to find the defendant guilty of contempt and its failure to sustain plaintiff’s motion to that end constitute a part of the divorce suit, which is the main subject of this appeal, or was it an independent action not reviewable in an appeal from the divorce decree ? There are various rulings in different states under various circumstances on such jurisdictional issue. The rule in this state, however, has been settled so far as comparable facts and circumstances are concerned.

As stated, the purpose of a proceeding in civil contempt is primarily to preserve and enforce the rights of a private party to the action. The real party in interest is the party litigant, whose rights in the premises are claimed to have been violated. Middleton v. Tozer, Mo.App., 259 S.W.2d 80; Holt v. McLaughlin, 357 Mo. 844, 210 S.W.2d 1006; State, on Inf. of McKittrick v. Koon, 356 Mo. 284, 201 S.W.2d 446; 17 C.J.S. Contempt § 62(6), pp. 157-160. The contempt proceeding is an additional remedy afforded by law and is auxiliary to the main action. It is not necessary to docket and to pursue an independent action to enforce a rule which has been violated. Odom v. Langston, 358 Mo. 241, 213 S.W.2d 948; Davis v. Broughton, Mo.App., 382 S.W.2d 219, 222. This rule is not affected by the power of the court itself to initiate civil contempt proceedings to enforce compliance, nor by the fact that new issues and service may he involved. 17 C.J.S. Contempt § 63, p. 162. Hence, in the appeal in the instant case we entertain plaintiff’s third point of error.

It is provided in Section 476.130, RSMo 1959, V.A.M.S.:

“Contempt committed in the immediate view and presence of the court, may he punished summarily; in other cases the party charged shall be notified of the accusation, and have a reasonable time to make his defense”.
“Before a person can be found guilty of a contempt not committed in the presence of the court, ,he must have due and reasonable notice of the proceeding. So, ordinarily, there should issue an attachment, or a rule or order to show cause why defendant should not be punished or why an attachment should not issue, or other process, the proper or permissible form or forms of process varying with the local practice. * * * The court may order the rule to show cause to be renewed where the original could not be served in time; * * * 17 C.J.S. Contempt § 77, pp. 194, 195.

This court said in substance, in Sands v. Richardson, Mo.App., 252 S.W. 990, 994, that even civil contempts are considered criminal in nature in that they concern commitments under which persons may be restrained of their liberty, and that persons charged with indirect contempt are entitled to notice and reasonable time to defend, which notice “ * * * means a reasonable notice, one which will fairly and fully enable the party cited to know the specific acts he is charged with and be thereby enabled to prepare his defense”. Citing that case the court said in G - v. Souder, Mo.App., 305 S.W.2d 883, 886, that in a charge of indirect contempt a mere showing that the accused was in the court at the time of trial and had knowledge of “what was going on” did not satisfy the requirement of notice informing him of the charges made, but the law contemplates a notice in writing, fairly informing him of the specific acts of contempt with which he is charged.

The great weight of authority sustains the action of the court in the case at bar in refusing to take further action on the order to show cause in the absence of any service of the same upon the defendant.

Whether the court under its continuous jurisdiction over the custody of the plaintiff’s minor child until his majority, or under its power and authority to enforce performance of its orders and judgments, or, at the instance of the plaintiff, pursues further proceedings in the contempt charge are matters for consideration and determination in such event.

The judgment is affirmed and the cause is remanded for the purpose only of further and prompt proceedings by the court requiring defendant’s counsel to disclose to the court his information as to the precise whereabouts of the defendant and Steven, the minor child of the parties, as communicated to him by the defendant.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Ivan L. NOBLE and Ben C. Ellis, Respondents, v. Fred WEBER, Jr., Vigus Quarries, Inc., Albert Bailey, Wade Hilton and Floyd Barnes, Appellants.
    No. 24669.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Rehearing Denied Feb. 5, 1968.

      Kay & Quigley, Eldon, for appellants; Michael J. Aubuchon, St. Louis, of counsel.
    Hendren & Andrae, by John E. Burruss, Jr., Jefferson City, for respondents.
   MAUGHMER, Commissioner.

The plaintiffs, Ivan L. Noble, Ben C. Ellis and their wives, had a judgment and decree for specific performance of an oral agreement allegedly made by defendant Fred Weber, Jr., and Vigus Quarries, Inc. The alleged oral agreement by defendant, Fred Weber, Jr. and by him as president of Vigus Quarries, Inc. was assumption of the debt and release of plaintiffs’ liability on a $30,-000 promissory note payable to Eldon Quarry Company, Inc., payment of which plaintiffs (and Willard M. Bledsoe, also an original plaintiff, and his wife) had guaranteed. The amount remaining due on the note was $20,922.41. Defendants were ruled not to have guaranteed the obligation insofar as Willard M. Bledsoe and Mrs. Bledsoe were concerned. Therefore, the amount involved herein is two-thirds of the total sum or $13,-881.60. The defendants Weber and Vigus Quarries have appealed.

Under the suit as originally brought, other parties were participants and other types of relief were sought. Plaintiffs’ petition was in five counts, one for specific performance, one in the alternative for rescission of the whole agreement, and the other counts for damages. The judgment was against the plaintiffs, Mr. and Mrs. Bledsoe, on all counts and neither has appealed. It was against the other plaintiffs on all counts except the one for specific performance, with no appeal by these plaintiffs. Other persons were named as defendants but we^ discharged in the trial court and again there was no appeal. Therefore, the judgment decreeing specific performance as to the $13,881.60 obligation by defendants, Fred Weber, Jr. and Vigus Quarries, Inc., and in favor of plaintiffs, Mr. and Mrs. Ivan L. Noble and Mr. and Mrs. Ben C. Ellis, is the only issue remaining in this controversy.

In early April, 1963, the plaintiffs, Noble, Ellis and Bledsoe, bought Benco Quarries, Inc., each paying $7,500 for a one-third interest therein. One-third of the stock was issued to each of these three purchasers and their wives. Shortly thereafter but still in April, 1963, Benco bought the Eldon Quarry Company, Inc. for the recited consideration of $50,000. Twenty Thousand dollars of the purchase price was paid in cash and the balance by a promissory note in the principal sum of $30,000, payable in semiannual installments of $2500, with interest at 5 percent. The Eldon Company had been owned by Mr. Ed Baur, who became in fact owner of the obligation. Mr. Baur was unwilling to accept the $30,000 note signed by Benco Quarries, Inc. alone, and so the individual owners of Benco, Mr. Noble, Mr. Ellis, Mr. Bledsoe and their wives, the plaintiffs, also signed the note as guarantors.

In late June or early July, the defendant, Fred Weber, Jr., as president and owner of defendant company Vigus Quarries, Inc., bought the stock of the plaintiffs, Mr. and Mrs. Noble and Mr. and Mrs. Ellis, in the Benco Company, and paid $8,800 cash for each one-third share. The plaintiff, Willard M. Bledsoe, and Mrs. Bledsoe, retained the one-third share which they owned in Benco, and Mr. Bledsoe functioned for a time as manager of that company. However, he and Mr. Weber did not agree as to how the company should be managed and operated and so> in July, 1963, the Benco stock was sold to Mr. Bailey, Mr. Hilton and Mr. Barnes, who were originally named as defendants, but are no longer directly involved in this litigation.

The plaintiffs, Noble and Ellis, testified as to a meeting with Fred Weber, Jr. and the purchase of their two-thirds of the Benco-stock by Vigus. With respect to the assumption of liability and release of plaintiffs from liability on the note, Mr. Ellis testified that Mr. Weber said: “We’ll assume all liabilities and assets of this company and we will relieve you of the obligation of this note and that Mr. Bailey will be operating the plant”, and further, “Mr. Noble and Mr. Bailey will get together on Monday and have an agreement drawn up”. Mr. Noble said that Weber agreed that Vi-gus and he personally would assume the debt and relieve plaintiffs from liability thereon.

A written instrument (plaintiffs’ Exhibit 3) embodying this asserted oral agreement, was prepared by defendant Weber’s attorney, Mr. Quigley. The plaintiff, Mr. Noble, said its provisions were dictated to the attorney by Mr. A1 Bailey, one of the originally named defendants. This proposed written agreement was offered in evidence by plaintiffs and it was received. It named Ivan L. Noble and Ben C. Ellis, as first parties, Vigus Quarries, Inc. as second party, and Eldon Quarry Company as third party. It recited that first parties who owned a majority of the stock interest in Benco Quarries, Inc. had sold and assigned their interest therein to second party (Vigus). The agreement declared that first parties and their wives were guarantors on the $30,000 promissory note and that second party (Vigus) agreed to assume the liability thereon of first parties and their wives. The agreement further provided that the third party (Eldon Quarry), in consideration of the assumption of liability by second party, released first parties and their wives from liability on the note. This agreement clearly recites (1) Noble and Ellis sold their stock to Vigus; (2) Vigus agreed to assume the Noble and Ellis liability on the promissory note and (3) Eldon Quarry released Noble and Ellis from further liability. Mr. Fred Weber, Jr., is not even mentioned therein. Although this proposed agreement was prepared by defendant’s attorney, it was signed by the plaintiffs Noble and Ellis and was by them offered in evidence. Since they did sign it, it is difficult to see how they can now ■contend that Mr. Weber, in addition to Vigus, agreed to assume liability when the matter was discussed orally. In fact, counsel for the plaintiffs, in oral argument before this court, conceded that Weber is not liable. This proposed agreement was not signed by Vigus or by Eldon Quarry, payee in the note, or by Weber.

Mr. Weber testified that he recognized that when Vigus bought Benco it became liable on the $30,000 note. He said the reason he refused to sign the agreement (for Vigus) was because plaintiffs failed or were slow in delivering the corporate records. Mr. Ed Baur, holder of the $30,000 obligation, said the agreement was not presented to him for signature, that he would not have signed with only Vigus as security, but he would have signed releasing plaintiffs from liability if Fred Weber, Jr. had guaranteed payment. In their brief plaintiffs say the testimony of Mr. Baur shows he would have accepted the guarantee if Vigus had signed the agreement and therefore defendants’ contention that the contract could not be specifically enforced is not tenable. We do not so read Mr. Baur’s testimony.

The deposition of Albert Bailey, one of the present owners of Benco, was taken by plaintiffs and by them presented in evidence. He said he was present when Weber, on behalf of Vigus, bought the stock owned by Noble and Ellis in the Benco corporation. He said the agreement (plaintiffs’ Exhibit 3) was prepared by attorney Quigley and that he and Mr. Noble were present. He said the wording in the agreement were the “words of Ivan Noble and Bob Quigley”. He believed Mr. Weber refused to sign for Vigus because there was an imbalance between the actual receivables and these items as orally represented. He said that “we”, meaning himself and the other present owners of Benco, had made two $2500 payments on the Eldon note as they came due and that he considered the whole note as a primary obligation of Benco.

On appeal all contestants agree that the fiecree and judgment for specific performance is against both Vigus and Fred Weber, Jr. We quote in part from the decree:

“The Court finds further that the Defendant, Fred Weber, Jr., acting as president and on behalf of Defendant, Vigus Quarries, Inc., did on July 13th, 1963, purchase all of the stock owned by Plaintiffs Ivan L. Noble and Ben C. Ellis in Benco Quarries, Inc., at which time the stock certificates were transferred to the purchasers.
“The Court finds further that at the time of the purchase by Weber and Vigus Quarries of the stock of plaintiffs Noble and Ellis, Defendant Fred Weber, Jr., acting as president and on behalf of Vigus Quarries, Inc., entered into an oral contract with Plaintiffs Ivan L. Noble and Ben C. Ellis as a part of said purchase of stock from said Plaintiffs, whereby said Defendant Weber, acting as president and on behalf of Vigus Quarries, agreed to assume the liability of Plaintiffs Ivan L. Noble and Ben C. Ellis and their wives as Guarantors on said promissory note for $30,000.00 to Eldon Quarry Company, and agreed that said Plaintiffs and their wives would be released from any and all obligations arising out of the note.
******
“WHEREFORE, the Court finds the issues for Plaintiffs Ivan L. Noble and Ben C. Ellis on Count I of their Petition and decrees specific performance of the oral agreement of Defendant Weber and Vigus Quarries to assume the guarantee of payment of the promissory note in the sum of $30,000 made payable to Eldon Quarry Company and executed by said Plaintiffs and their wives as Guarantors for Benco Quarries, Inc., and to release said Plaintiffs and their wives from any obligation arising out of the note.”

The judgment against Weber is certainly not in accordance with the court’s finding in the decree that Weber’s oral agreement to assume the Eldon obligation, was in his capacity of and acting as president of Vigus, rather than individually. In the oral argument before this court plaintiffs conceded that the judgment against Weber cannot stand. The judgment as to Weber will be reversed outright by this court.

On appeal defendants say the contract on which recovery was received was not the contract pleaded, that the alleged oral agreement was not proved by “clear, cogent and convincing evidence”, that it was error to receive plaintiffs’ Exhibit 3 in evidence and that Eldon Quarry Company, one of the parties to the alleged contract, was not a party defendant, was not subject to the court’s jurisdiction or subject to its decree. We believe that the only difference between the agreement pleaded and the one proved concerned the individual liability of the defendant Fred Weber, Jr. This divergence is not enough to preclude relief. It is our opinion that the evidence adduced on the material issues meets the requirement of being “clear, cogent and convincing”. In fact, all parties are in accord that Vigus agreed to assume liability for payment of the Eldon Quarry note. Thacker v. Courtney et al., Mo.Sup., 304 S.W.2d 1; Bennington et al. v. McClintick et al., Mo.Sup., 253 S.W.2d 132; 26 Mo.Dig., Specific Performance, Vigus not only agreed to do so, but the law cast the burden upon it.

As to plaintiffs’ Exhibit 3, which was prepared by defendants’ attorney, it was admissible as corroboration of the terms of the alleged oral agreement. Moreover, defendants cannot be prejudiced since the assumption of liability therein provided for was squarely admitted by defendant Weber, president of Vigus. Since neither Eldon Quarry Company nor Mr. Baur, holder of the note, is even alleged to have, orally or otherwise, agreed to release plaintiffs from liability as guarantors, we cannot see that under the issues presented, either Eldon or Mr. Baur was a required party defendant.

On appeal defendants also say plaintiffs’ judgment cannot stand, at least as to specific performance releasing plaintiffs from further liability, because the contract asserted was a three way contract and required approval of the release by Mr. Baur or by Eldon Quarry; that no other person— only Baur or Eldon could give such a release — and therefore release of plaintiffs from further liability is impossible of performance by defendants.

It is apparent, we believe, that plaintiffs could be released from liability only by or at least with the approval of the holder of the guaranteed obligation. There is no contention that Baur or Eldon either granted or approved such release. Defendants say the failure of this portion of the alleged contract voided the whole. We do not think so. We believe the contract is severable and that part under which Vigus assumed liability should be permitted to stand. We quote from the opinion of the Supreme Court en banc in Swinney et al. v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111, 120, 121:

“As in any construction of written instruments, ‘it is very difficult to lay down a rule which will apply to all cases and consequently each case must depend very largely on the terms of the contract involved’ (13 C.J. 561, § 525) ; and the question is primarily one of intention which ‘is to be determined from the language which the parties have used and the subject matter of the agreement.’ 13 C.J. 562, § 526. Tests which are used for aid in determination of this question, although no one of them is alone sufficient to decide the question, are whether the subject-matter of the contract is divisible, whether the consideration .is entire or apportioned, whether the obligation is due at the same time to the same person, and whether the contract is to take the whole or none. 13 C.J. 563, §§ 527, 528; 6 R.C. L. 858, § 246. Williston, Contracts, 1652, § 863, says that the essential test ‘can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever if any promise or set of promises were struck out.’ ”

Of course at the time of the sale of their stock plaintiffs wanted two things: First, they wanted Vigus, the purchaser of Benco, to assume the obligation. It seems this objective came into being, as Mr. Weber said, when Vigus bought Benco. Vigus bought the corporate stock and this included not only the assets, but also the liabilities. Mr. Weber also orally agreed for Vigus to assume the debt. Second, plaintiffs wished to be relieved from their personal liability which arose when they personally signed the note. Such a release was not within the power of Vigus or Weber personally to give. It was dependent upon whether or not Mr. Baur, holder of the note, would release plaintiffs.

We believe the evidence and the law authorized and justified a judgment and decree that Vigus was liable for and assumed payment of the $30,000 promissory note. We do not believe that part of the decree requiring Vigus and Weber, either or both, to release plaintiffs from any obligation arising out of the note is either justified, authorized or possible of execution by defendants. Such a release would require the consent and approval of Mr. Baur, holder of the note.

Therefore, the judgment as to Fred Weber, Jr. is reversed outright in all respects. The judgment as to Vigus is affirmed insofar as liability is concerned, but reversed insofar as it purports to require Vigus to release plaintiffs from any obligation arising out of the note.

The .judgment and decree herein is reversed in part and affirmed in part and the cause is remanded with directions to enter a judgment and decree in accordance with this opinion.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion by MAUGHMER, C., is adopted as the opinion of the Court.

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: J. P. MORGAN, Special Judge.

text:
    Lee J. COOPER, In His Own Right, and as Assignee of Donald E. Wilson, Respondent, v. Oran F. NORMAN, Ella Norman and Wesley C. Norman, Partners, doing business as Norman’s Restaurants, Appellants.
    No. 24379.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 5, 1968.
    John B. Moritz, Kansas City, for appellants.
    Meyer, Smith & Penner and Edmund B. Smith and Courtney W. Perkins, Kansas City, for respondent.
   J. P. MORGAN, Special Judge.

Defendants in this appeal contend that the trial court erred in allowing plaintiff to recover for services rendered on a theory of quantum meruit when the claim as set out in the petition was premised on an express oral contract of employment of plaintiff by defendants.

It is agreed that defendants in addition to operating a farm had been engaged for many years in the ownership and management of various restaurants in Kansas City, Missouri. The number of restaurants actually operated at any one time varied from one to three, and although not clear from the evidence, perhaps four. At a time when only one restaurant was involved defendants employed one Donald E. Wilson, a Certified Public Accountant, to provide all accounting work required in preparation of payrolls and various periodic tax reports as well as the annual income tax return. Some six years later, plaintiff, who was also a C. P. A., purchased the accounting firm of Wilson. This transaction included the assignment from Wilson to plaintiff of what was alleged to have been the balance due Wilson from defendants. This portion of the amount claimed is set out in Count I of the petition in the amount of $470.94. For approximately two more years plaintiff continued to furnish the same accounting service, and upon his discharge claimed that a balance of $2,580.-77 was due for his services as set out in Count II. The case was tried to a jury and plaintiff prevailed on each count in the exact amount prayed for. Interest was computed and judgment was entered accordingly.

Defendants correctly assert, and plaintiff agrees, that the verdict-directing and measure of damage instructions, as to each count, submitted both claims on a theory of quantum meruit. It is argued further that such submission was error because the claims as declared in the petition were based on an express contract of employment. The question thus created does not raise any novel question of law as shown by the holding in Fuldner v. Isaac T. Cook Co., Mo.App., 127 S.W.2d 726, 731: “It is a well settled rule that, when an express contract is open and unexecuted, and plaintiff proceeds for a breach of it, he must declare specially on the contract. In such case indebitatus assumpsit will not lie. But where, as here, an express contract has been fully performed on plaintiff’s part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply, plaintiff may declare specially on the contract, or generally in indebitatus as-sumpsit as for the quantum meruit, at his election. The plaintiff does not repudiate the contract nor seek to avoid it in indebi-tatus assumpsit as for the quantum meruit, but offers the contract in evidence and his proof of compliance with it to sustain his case. The agreed price, if there is an agreed price, becomes prima facie evidence of the reasonable value of the service. But plaintiff may not recover more than the agreed price.” Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824; Julian v. Kiefer, Mo.App., 382 S.W.2d 723, 727.

Initial concern must be directed toward the petition. Count I can be generalized fairly as follows: paragraph one identified the parties; paragraph two alleged that defendants verbally employed Wilson (assignor) as a C. P. A. to provide the accounting services previously described for $72.00 per month for one restaurant “with the services required for the last month of each year, involving year end reports and tax returns, to be on an hourly basis.” It was alleged that charges were made for such year end work at the rate of $3.60 per hour for junior accountants, $5.00 per hour for senior accountants and $7.50 per hour for managing and supervising accountants. It was further alleged that the parties agreed the monthly rate would be increased as new restaurants were opened, and that this charge was increased for a while to $107.50 and later to $125.00 per month. It is not specifically alleged defendants agreed to the new rates prior to their being charged to the account. However, it is alleged that the services were rendered and periodic payments (generally in even amounts of multiples of $100.00) were made by defendants; paragraph three referred to the assignment; paragraph four claimed the charges made did represent the reasonable value of the services. Except for the assignment, Count II was similar. From the petition two conclusions are readily apparent. First, the first charge of $72.00 per month for one place of business was declared to be a specific agreement of the parties that covered 11 months of the year. Second, charges for work to close out the year in December were not specifically covered by any agreement alleged in the petition as to either time (hours required to complete the work) or rate (varying with the skill classification of plaintiff’s employees). Clearly, two theories were commingled in each count, Kaiser Alum. & Chem. Sales, Inc. v. Lingle Refrig. Co., Mo.App., 350 S.W.2d 128, 131, but more important is the approach of defendants at the trial to questions they now seek to raise. With Mr. Perkins for plaintiff and Mr. Moritz for defendants, the following pre-trial agreement is of record:

Mr. Moritz: “* * * They have sued on quantum meruit, as I understand it, and we had a conference on the question of whether he was pursuing an agreed contract or a question of quantum meruit proposition. I don’t know yet from his amended petition what we are doing.”
Mr. Perkins: “It’s on quantum meruit.”
Mr. Moritz: “Quantum meruit alone?”
Mr. Perkins: “Yes.”
Mr. Moritz: “All right.”

In opening statement plaintiff’s attorney stated: “We are bringing this action to recover the reasonable amount or reasonable value of those accounting services.” Defendants’ attorney declared to the jury, “* * * Now he is being sued on what it’s reasonably worth, in other words, what we call quantum meruit, what is fair and reasonable in this locality for this work. That’s the issue, as I understand it, that you gentlemen will be required to settle. * * * Now, bear in mind this suit is not one on contract. They have sued for what is fair and reasonable.” Both sides presented expert witnesses in an attempt to establish the reasonable value of the services. This would not have been necessary or proper in an action bottomed on an express contract where the compensation was fixed, Haughton Elevator Co. v. C. Rallo Contracting Co., Mo.App., 395 S.W.2d 238, 245, or as stated in 17A C.J.S. Contracts § 601, p. 1174: “Thus, where price to be paid for work performed is ascertained by a method of measurement specified by the contract, it is not open to one party to the contract to introduce evidence as to another method of measurement for the purpose of showing that a different price should be paid.” The record is replete with defendants’ further characterization of the petition as a claim in quantum meruit both in cross-examination of plaintiff’s witnesses and in direct interrogation of witnesses for defendants, but only one further comment of defendants’ attorney in closing argument will be quoted. It was, “Now, this case isn’t in the final analysis anything at all except adopting their theory like we have their figures, a question of what is reasonable and fair for the services rendered to the Normans (defendants) by these people (plaintiff and his assignor).” Additionally, it is of interest that defendants called the first expert witness on the issue of reasonableness by requesting and receiving permission to do so during the presentation of plaintiff’s case.

With this record defendants are not in a position to complain that the issues as tried were not raised by the pleadings. Section 509.500 V.A.M.S.; Evett v. Corbin, Mo., 305 S.W.2d 469, 474; Hart v. Midkiff, Mo., 321 S.W.2d 500, 507. The opinion of this court in O’Neal v. Mavrakos Candy Co., 255 S.W.2d 138, adopted by the Supreme Court in 263 S.W.2d 430, relied on here by defendants, is clearly distinguishable. There the petition set out a specific contract of employment with a determinable compensation for services rendered; the question of reasonableness was not pleaded nor was such evidence offered; and of primary importance, defendant filed a motion for directed verdict at the close of the evidence. None of these factors are present in the instant case. Millar v. Berg, Mo., 316 S.W.2d 499, 502.

By a reply brief, defendants assert that perhaps plaintiff made a submissible case, but now contend the instructions given were improper because they did not limit the recovery to the “agreed price.” Fuldner v. Isaac T. Cook Co., supra. If it is assumed that defendants have not waived this argument, a moment of reflection on the problem of the trial judge provides a ready answer. To what amount could he have limited the recovery by instructions when no definite or determinable compensation was shown by the pleadings or the evidence? The rule placing a restrictive limitation on the recovery allowable in a quantum meruit action is applicable, of necessity, only in those instances where the action had its inception in a contract where the compensation was fixed or was susceptible of being accurately ascertained.

This is not a case where a party by inadvertence or unwise trial strategy tried a case on an improper theory. Quite to the contrary, the record reveals that defendants’ counsel was fully cognizant of the law involved in this action, and that he vigorously defended the case on the only theory available to him.

Finding no error, the judgment is affirmed.

All concur.


text:
    95 WEST CORPORATION, Plaintiff-Appellant, v. GENERAL INSURANCE COMPANY OF AMERICA, a Corporation, and Assurance Company of America, a Corporation, Defendants-Respondents.
    No. 24742.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Rehearing Denied Feb. 5, 1968.

      Clem W. Fairchild, Herbert M. Kohn, Kansas City, for plaintiff-appellant; Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel.
    Glenn E. McCann, Knipmeyer, McCann & Millett, Kansas City, for defendant-respondent Assurance Co. of America.
    John R. Caslavka, Shughart, Thomson & Kilroy, Kansas City, for defendant-respondent General Insurance Co. of America.
   MAUGHMER, Commissioner.

In 1962, the plaintiff, 95 West Corporation, began construction of a complex, to be known as the French Market Shopping Center, on the northeast corner of 95th and Metcalf streets in Overland Park, Kansas. On September 2, 1962, it purchased two Builders Risk Fire (and other coverages) insurance policies from defendant companies. On July 18, 1963, fire destroyed some parking lot light fixtures in the original cartons which were stored on the grounds and which were valued at $5,324.47. Plaintiff sued defendant companies for this amount and for penalties. Defendants denied that this particular loss was covered. A jury was waived and the case was tried to the court, the parties agreeing that the facts were not in dispute, and that only questions of law were involved. The court, after hearing the evidence, held in part: (1) the loss was not covered; (2) the provisions of the policies describing coverage were not ambiguous; (3) only the building itself and articles for use in its construction were insured and this did not include the parking lot or items for use in its construction and (4) plaintiff failed to prove the value of the destroyed fixtures or its liability for their loss. Accordingly, judgment was entered for defendants.

The insurance contracts involved were actually procured by Margaret Mary Allen, an insurance broker, who had been authorized to do so by plaintiff. Her arrangement for the purchase of the policies was with a Mr. Charles DeGreef, who was at the time manager of Independent Insurance Agencies, Inc., and in such capacity had authority to write insurance for the defendant companies. The insurance was written approximately coincident with the start of construction. It is what is known as “Builders Risk” and was for the purpose of indemnifying the plaintiff owner for certain losses which might occur during construction. The original coverage totaled $450,000, which was later increased as progress was made in the construction.

The policies, as written, described the insured property as “one story approved roof fire proof building or structure, while in the course of construction, including foundations, additions, attachments, and all permanent fixtures belonging to and constituting a part of said building or structure to be occupied as Shopping Center all while situated northeast corner 95th and Metcalf, Overland Park, Kansas. This policy also covers temporary structures, materials, equipment and supplies of all kinds incident to the construction of said building or structure and, when not otherwise covered by insurance, builders’ machinery, tools and equipment owned by the Insured or similar property of others for which Insured is legally liable, all forming a part of or contained in said building or structure, temporary structures, or on vehicles, or in the open; only while on the premises described or within 100 feet thereof”.

The light fixtures at the time of destruction were within 100 feet of the main building. There is no dispute but that these fixtures were to be used to illuminate the parking lot portion of the shopping center or that they were destroyed or irreparably damaged by fire.

On appeal plaintiff makes two assignments of error. It says the court erred in holding that plaintiff failed to prove the value of the fixtures destroyed or that it was legally liable for them. The testimony of Mr. I. I. Ozar, attorney, who drew the contract with Overland Electric Company, was that plaintiff paid $5,324.47 for the fixtures. Canceled checks showing payments of this amount (and other amounts) for replacements were in evidence. Mr. Uri Sei-den, architect, testified that he had approved payment for the fixtures. We believe plaintiff produced evidence which was not affirmatively controverted showing that it was entitled to recover for this loss if the same were covered under the policies.

Plaintiff also contends that the court erred in holding that the policies did not cover the parking lot light fixtures which were destroyed by fire. It says this is so for two reasons: (1) the terms of the contracts should be interpreted with their ordinary meaning and in a manner most favorable to the insured, and insists that this would result in coverage; (2) the court should have found the terms and provisions of the policies applicable hereto are ambiguous, which would authorize reception of parol evidence to show the intent of the parties, and that such evidence would show that coverage was intended. A third contention, namely, that these fixtures were to be attached to the main building has apparently been abandoned.

Each side in the hope of upholding its interpretation and in an effort to clarify the intention of the contracting parties, presented oral testimony. Miss Allen, the broker, thought the whole shopping center complex was covered. Mr. Uri Seiden, architect, and other witnesses, said that any and all shopping centers included a large parking area which was an essential and required part thereof.

It was brought out on behalf of defendants that Miss Allen, broker and agent of plaintiff, in her description of the property to be insured, not only said the building was one story with fire proof roof, but that it covered an area of 156,000 square feet, whereas the area of the parking lot was 640,000 square feet and the area of the whole complex approximately 793,000 square feet. Mr. Merle E. Stubbs of the Kansas Inspection Bureau, testified that the rates charged did not cover the parking area and that the rates would have been increased especially for vandalism and extended coverage, (these risks were in the policies but not involved in the fire loss) if the parking area or the whole complex had been included.

This being a jury waived case, our scope of review is limited by Section 73.-01(d) V.A.M.R. and a reversal would be justified only if we find the judgment of the trial court was clearly erroneous. Swaringin v. Allstate Ins. Co., Mo.App., 399 S.W.2d 131, 134.

The policies, as written, covered a one story fire proof building or structure to be occupied as a shopping center. Even though such description is construed most favorably to the insured, did it include the parking area? We think not. In fact, appellant has not really urged this theory or that the parking lot light fixtures were to be attached to the building itself. Is such description of the area or premises insured “ambiguous” as that word is understood and interpreted in insurance contracts ? If it is not, then parol evidence explanatory of the intention of the parties is inadmissible and judgment for the defendants must be affirmed.

We look first to Webster’s Third New International Dictionary for a definition of the words “building” arid “structure”. There we are told that a building is: “A thing built; a constructed edifice designed to stand more or less permanently, covering a space of land, usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, store house, factory, shelter for animals, or other useful structure * * * distinguished from structures not designed for occupancy”. We find this definition for the word “structure”: “The action of building. Something constructed or built. A building of imposing size”. The word “structure” is also defined as including the composition and components of natural elements.

“The words in insurance contracts are to be understood according to their ordinary scope and meaning * * * ”. 13 Ap-pleman, Insurance, par. 7388, page 46. “Ambiguity arises when there is duplicity, indistinctness or uncertainty of meaning”. Swaringin v. Allstate Ins. Co., Mo.App., 399 S.W.2d 131, 133. In Swaringin it was ruled that the phrase “uninsured automobile” was one on “which there is no bodily injury liability insurance applicable at the time of accident” was clear and unambiguous. “The word ‘ambiguity’ means duplicity, indistinctness or uncertainty of meaning of an expression used in a written instrument”. Tenney v. American Life and Accident Ins. Co., Mo.App., 338 S.W.2d 370, 371. In this Tenney case the policy in large print provided for monthly hospital care cost “not to exceed $150.00”. In another place in small print it provided for payment of “actual hospital expenses at a rate not to exceed $150.00 per month”. The insurer contended its liability did not exceed $5.00 per day. Against this contention the phraseology used was ruled to be ambiguous and the insurer’s contention was denied.

Appellant invites our attention to Webster’s definition of a Shopping Center: “A concentration of retail stores and service establishments * * * usually with generous parking space”. Also to the opinion in Parker v. The Lewis Grocer Company et al., 246 Miss. 873, 153 So.2d 261. This Mississippi case was an action by a tenant to restrain extension of a shopping center when his lease contained such restriction. It was held that the lease was ambiguous as to just what was included in the phrase “shopping center”. In that case, of course, “shopping center” was the phrase used and the phrase that was required to be interpreted. We believe that is not our. case.

We agree with these conclusions or holdings that a parking lot is part and parcel of a shopping center complex. The difficulty with plaintiff’s position in the matter before us is that only a one story fire proof building or structure and articles for use in its construction was insured. The term “shopping center” in the policies is only used to describe the purpose for which the building was to be used. “Shopping Center” was not declared to be a part of the insured premises. It is not only usual and permissive but also required that the use to which the property is to be put be stated. This use, in completed structures at least, determines in part the rates which are fixed by state regulatory agencies. For example, the rate for a multiple family dwelling would be higher than the rate on one designed for single family occupancy. The cost of insurance coverage for a garage where gasoline and automobiles are stored exceeds the cost for a men’s furnishing store.

Parking areas have become a modern necessity in most merchandising and in congested apartment dwelling areas. But can it reasonably be said that an insurance policy covering a fire proof building or structure to be used as a bowling alley includes indemnity for destruction by fire or vandalism of the light fixtures or asphalt pavement in the parking area, even though today no bowling alley building would be complete without providing an adequate parking area ? Would a fire, vandalism and extended coverage policy oh an apartment building of 75 units be construed as covering losses occurring in the parking lot simply because a parking area is essential to such a modern housing unit ? We do not think so.

Courts are not empowered to rewrite or remake insurance contracts. An ambiguity can exist only in those cases where the language is susceptible of more than one meaning. Hardy v. Hardy, Cal.App., 135 P.2d 615, 619. Before ambiguity can be found it is essential that there be a reasonable basis for the difference in opinion. London & Lancashire Indemnity Co. of America v. Neil Barron Fuel Co., D.C. Mo., 31 F.Supp. 599, 600.

We believe the policies sued on covered the building or structure and the words “Shopping Center” were used only to describe the use for which the building was intended. The phraseology used plainly and clearly so states. We are further led to this conclusion by the fact that the policies stated that even the fixtures and materials used in the construction of the building itself are not covered unless the loss of them occurred within 100 feet of the building or structure. Such an area would clearly not include all the parking space, much less the 793,000 square feet of the whole shopping center complex. In our opinion the wording as to the property and area covered cannot reasonably be said to connote duplicity, indistinctness or uncertainty of meaning. The coverage description is therefore not ambiguous. It folllows that the judgment of the trial court for the defendants is, in our opinion, the correct judgment, is not clearly erroneous and should be affirmed.

The judgment for defendants is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

HOWARD, P. J., CROSS, J., and JOHN M. CAVE, Special Judge, concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Norman Clifford THOMPSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Department of Highways, Frankfort, C. V. Sanders, Shepherdsville, Robert Rieckhoff, Department of Highways, Frankfort, for appellant.
    Thomas B. Givhan, Shepherdsville, for appellees.
   STEINFELD, Judge.

The Commonwealth condemned 2.23 acres and a temporary easement of the Thompson farm to relocate Kentucky Highway 61 south of Shepherdsville, Kentucky. In county court the appellees were awarded $4,500.00 and both parties appealed. The circuit court jury found that the owners were entitled to $10,020.00. This appeal is from the judgment entered pursuant to that verdict. We reverse.

The Thompsons owned a farm fronting on the west side of Highway 61 and containing approximately 60 acres. The principal improvements were an eight-room house, two barns, two garages, and some smaller buildings. The Commonwealth took an 800 foot unimproved strip dividing the farm so that 7.1 acres (Thompsons say four acres) with all improvements were located east of the new highway and the remaining 51 acres were west of the new highway. The construction of the new road required that it be built upon a fill 20-feet high where it enters on the north, descending on a 2% grade to four feet in height where it leaves on the south.

The tract on the east side does not have access to the new road except by “going out on old Highway 61 and coming around.” However, a small temporary easement was taken while the Commonwealth constructed for the benefit of the owners an entrance from the new road to the west side.

The Commonwealth’s witnesses testified that the highest and best use of the land was for farming, while the witnesses for the landowner said that it was for subdivision purposes. Testimony concerning values was as follows:

In Com., Dept. of Highways v. J. W. Hester et al., Ky., 421 S.W.2d 840 (1967) we reversed because the verdict of the jury was excessive. The Hester property is contiguous to the Thompson farm. We perceive no factors which will permit us to come to a different conclusion than that reached in Hester. Following the principles announced in Com., Dept. of Highways v. Stocker, Ky., 423 S.W.2d 510 (decided January 12, 1968) we hold that the verdict was excessive.

Since there will be another trial we deem it appropriate to refer to the contention that evidence of the suitability of the farm for subdivision purposes was inadmissible. This subject was thoroughly discussed in Com., Dept. of Highways Siler, Ky., 411 S.W.2d 937 (1967). Also see Com., Dept. of Highways v. J. W. Hester et al., supra.

With respect to the contention that evidence regarding loss of access was improperly admitted we held in Com., Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104 (1962) that the landowner has only the right of reasonable access. We perceive nothing in the record now before us to indicate that reasonable access was not provided. The separation of the farm, for farming purposes or for subdivision purposes may have affected its market value and this is a subject which may be developed by testimony of qualified witnesses. Com., Dept. of Highways v. Sea, Ky., 402 S.W.2d 842 (1966); Com., Dept. of Highways v. Dennis, Ky., 408 S.W.2d 444 (1966); Com., Dept. of Highways v. Muir, Ky., 412 S.W.2d 231 (1967) and Com., Dept. of Highways v. Boone, Ky., 412 S.W.2d 236 (1967).

Evidence is admissible that market value will be affected by the height of the fill or any improper drainage. Com., Dept. of Highways v. Barton, Ky., 398 S.W.2d 694 (1966); Commonwealth et al. v. Tate, 297 Ky. 826, 181 S.W.2d 418 (1944). Also see Com., Dept. of Highways v. Robbins, Ky., 421 S.W.2d 820 (1967).

The subject of evidence of comparable sales was discussed in Bennett v. Com., Dept. of Highways, Ky., 417 S.W.2d 143 (1967) when we said:

“It was said in Stewart v. Commonwealth for Use and Benefit of Dept. of Highways, fey., 337 S.W.2d 880, 884 (1960), and has been reiterated in a number of later opinions, that if properties are reasonably similar ‘and a qualified expert states his opinion that they are sufficiently comparable for appraisal purposes, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony altogether.’ ”

This case and the ones cited therein will serve to guide counsel and the court on the next trial.

The judgment is reversed with directions to grant a new trial.

All concur, except OSBORNE, J.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Lewis R. TANNER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, James E. Adkins, Catlettsburg, Lewis D. Jones, Flemingsburg, for appellant.
    J. W. McKenzie, H. David Hermansdor-fer, Ashland, for apellees.
   DAVIS, Commissioner.

The Department of Highways is appealing from the judgment of $42,500 entered pursuant to the jury’s verdict in this highway condemnation proceeding. The Department presents six assignments of error, but our view of the case makes it unnecessary to detail these contentions or deal with them in depth, except to the extent hereinafter noted.

The property involved in the taking is commercial property located on the south side of existing U.S. Highway 23 between Ashland and Russell and bounded on its west side by Kentucky Highway No. 5. The right-of-way being acquired in this proceeding is incident to widening of U. S. 23 and Route 5 and necessitates the acquisition of an irregularly shaped parcel embracing 5,750 square feet out of the original tract of 38,500 square feet. Additionally, a temporary easement for the purpose of providing curbing and a drainage trough was obtained along 122.67 feet of the frontage ; the easement had depth of 10 feet and was used for fourteen months. There was no permanent taking affecting the portion of the tract on which the temporary easement was used.

In its verdict the jury fixed the before market value of the entire property at $125,000 and found its after market value to be $85,000, resulting in a difference of $40,000. The jury fixed $2,500 as the award for the temporary easement. The appraisal witnesses for the parties expressed their opinions of before and after values as follows:

Analysis of the foregoing opinion evidence reflects that there is no substantial variance between the testimony from both sides as to after value and the jury’s verdict of after value. The chief source of the disparity between the opinions expressed in behalf of the Department and those offered in behalf of the appellees is to be found in the variant before values given by the witnesses. It remains to look at the record to determine whether the evidence of before value in behalf of the property owners possessed sufficient probative value to support the jury’s finding of before value in its verdict. Three valuation experts testified for the landowners, and each of them expressed technical qualifications and experience warranting reception of opinion evidence from them as expert appraisal witnesses. Each of these witnesses employed the capitalization theory of appraisement which was explained by them as being an appraisal technique often employed in fixing values of commercial properties. In its brief the Department cites from the American Institute of Real Estate Appraisers, Revised Second Edition, two definitions of capitalization:

“Capitalization is the process of ascertaining the magnitude or worth or value of a capital good with the use of a rate which is believed to represent the proper relationship between the capital good or property and the net income it produces.” Id. Chapter 17, Page 322.
“Capitalization is a procedure in the appraisal process by which the capital value of property may be estimated from the quality, the quantity and duration of its net income expectancy.” Id. Chapter 17, Page 336.

The Department quarrels with the approach used by the landowners’ witnesses on the premise that the witnesses used gross income expectancy rather than net income expectancy in formulating their before value opinions on the capitalization theory. We think each of the witnesses sufficiently explained the procedure followed in fixing before value estimates and find no merit in the Department’s contention that the evidence of the three witnesses should have been stricken from the record. Cf. Commonwealth, Department of Highways v. Whipple, Ky., 392 S.W.2d 81.

The witnesses for the landowners expressed plausible reasons and cited pertinent factors supporting their expressed opinions of before value. We are unable to perceive any basis for holding that the opinions of the witnesses for the appellees were totally incompetent, nor can we find them to be so wanting in probative quality that they must be said to fail to support the jury’s finding. We are mindful of the fact that substantial agreement as to after values, accompanied by wide divergence in before values, may raise a question as to the reliability of the evidence of before value. In this case the witnesses for the landowners testified that the after value was not quite 60% of the before value, whereas the Department’s witnesses said the after value was nearly 84% of what they considered its before value. Yet, the factors bringing about diminution in value were the same. It appears to the court that the witnesses for the landowners adequately supported their opinions by stating reasons for them sufficient to support the verdict in this case.

The Department reasons that the verdict is palpably excessive, and demonstrably so, because the taking is of 14.93% of the aggregate area, whereas the total award (not considering the temporary easement) equals 32% of the before value fixed by the jury. No improvement was taken except the one-car garage, and all the witnesses agreed that the garage and the residence buildings contributed nothing to the highest and best use value of the tract before or after the taking. The verdict is within the range of the testimony and is not so large as to impress the majority of the court as being palpably excessive within the principles enunciated in Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922; Commonwealth, Department of Highways v. Smith, Ky., 413 S.W.2d 72; and cases there cited and discussed. Compare Commonwealth, Department of Highways v. Brown, Ky., 415 S.W.2d 825, in which an award of 30% of the market value of a residential property was not deemed palpably excessive.

The Department has complained that the trial court permitted the landowners to withdraw from a stipulation concerning the accuracy of the Department’s map exhibit. We find no merit in the Department’s position, because the trial court afforded the Department full opportunity to meet any element of surprise occasioned by the withdrawal from the stipulation’s terms. There was conflicting evidence presented by engineers, one for the Department and one for the landowners, as to the true location of the former right-of-way line. The Department had available to it all of the evidence it could adduce, so far as this record reveals, so there could have been no prejudice in the court’s permitting the landowners to withdraw a portion of their stipulation. This was a matter which rested in the sound discretion of the trial court, and we find no abuse of that discretion. SO Am.Jur., Stipulations, Section 14, Pages 613, 614.

One of the witnesses for the Department had been a commissioner appointed by the county court, to fix the value of the property involved in this case. When that witness was offered for the Department, the trial court ruled that the Department could not elicit from the witness the fact that he had served as a county court commissioner in the case. It is true that we have said that a commissioner may relate that he did act as such, but he may not reveal the amount of the commissioners’ award. Commonwealth, Department of Highways v. Evans, Ky., 361 S.W.2d 766. We cannot believe that identifying the witness as a county court commissioner in the action would have added “one cubit to his stature” as an expert witness.

Some evidence which related to flooding of the basement of a commercial building on the premises during construction and of inconvenience during construction was introduced over the objection of the Department. However, the trial judge subsequently admonished the jury to disregard that testimony. No further relief was asked in behalf of the Department. The evidence complained of dealt with after value anyway, and in our view of the case, could not have been prejudicial. The court’s admonition to the jury was sufficient to erase the effect of any claimed prejudicial error here.

The award of $2,500 for the use of the temporary easement was predicated upon testimony and an instruction couched within the rule announced in Commonwealth, Department of Highways v. Ray, Ky., 392 S.W.2d 665. The temporary easement lasted for fourteen months and occupied the entranceway of a drive-in restaurant. Although the award may seem generous, it may not be regarded as palpably excessive.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, OSBORNE, PALMORE, and STEINFELD, JJ., concur.


author: EDWARD P. HILL, Judge.

text:
    GENERAL TRUCK & SALES SERVICE CO., Appellant, v. John H. SCHLENSKER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.

      J. D. Raine, Louisville, for appellant.
    Philip Louis Haller, Louisville, for ap-pellee.
   EDWARD P. HILL, Judge.

This appeal is taken from a judgment entered pursuant to a verdict of $2,409.71 returned by the jury in appellee’s action to recover damages to a diesel truck sustained on March 9, 1964, when the truck was partly submerged by high water from Beargrass Creek, a stream running through the city of Louisville, while in appellant’s possession for repairs.

On or shortly prior to March 3, 1964, a truck belonging to appellee ran off the road near Williamsburg, Kentucky, and sustained damages. Appellee made arrangements with appellant to have a third party tow the truck to appellant’s garage at 927 East Broadway in Louisville for repairs. The truck was parked on a vacant lot near the appellant’s garage. On March 9, 1964, after an all night rain of approximately seven inches, the water from Bear? grass Creek overflowed and flooded a part of the lot on which the truck was located, and from three to four feet of muddy water got into the truck.

Appellant and appellee both rely on Welch v. L. R. Cooke Chevrolet Co., 314 Ky., 634, 236 S.W. 690; and in the interest of consistency, we shall rely upon the same case.

Welch, supra, is a very similar factual case to the one at bar, except in Welch the property was damaged by fire instead of by flood as in the present case. The rule in Welch at page 692 is stated as follows:

“In the case of Threlkeld v. Breaux Ballard, Inc., 296 Ky. 344, 177 S.W.2d 157, 151 A.L.R. 708, we adopted the minority view that if a bailor makes out a prima facie case and it appears that the bailed goods were damaged or destroyed by fire, the bailee has the burden of proving that the fire resulted otherwise than from his negligence. This court has not heretofore considered the nature of the proof necessary to meet this burden.”

See also 151 A.L.R. 716.

Upon a showing by the appellee, the bailor, that the truck was delivered to and accepted by the appellant, a bailment resulted, which was for the mutual benefit of both the bailor and the bailee. When appellee Schlensker proved that his truck was damaged by having been flooded, the rule of res ipsa loquitur applied raising a rebuttable presumption of negligence on the part of the bailee. If the bailee hopes to prevail, he must come forward with evidence to counteract this, rebuttable presumption.

As noted above, the jury obviously decided the appellant had not met the burden of proof. Our question then is whether or not the verdict is supported by substantial evidence; and if it is, it will not be disturbed. Cf. Southern Railway Co. v. Kelly Construction Co., Ky., 406 S.W.2d 305.

We shall now review the evidence to determine whether or not the verdict was based upon substantial evidence. Raymond Costelle, manager and secretary of the appellant company, testified that the water of Beargrass Creek was still within its banks when he came to work on the morning of March 9, 1964, although it had rained all night and was raining that morning; that when he went to lunch, there was no apparent danger of flooding, but when he returned 45 minutes later, the water had risen in the office building and garage to such an extent that it was necessary for him to wade in to assist in removing the records and furniture of the company. There was also evidence that most of the records and three-fourths of the vehicles owned by the company were moved to higher ground out of the reach of the water and that efforts were made to secure a wrecker to remove appellee’s truck, but that they were unable to obtain one. It should be noted in this connection, however, that the appellee’s truck was not disabled to the extent that a wrecker was required to remove it; in fact, when it was removed by the appellee the following week, a wrecker was not required, but it was towed away by another truck.

Appellant contends in its argument and its evidence that its employees did all within their power to prevent loss to appel-lee’s truck. However, we are of the opinion that the failure of appellant to anticipate the overflowing of Beargrass Creek could very well have been the basis for the jury’s verdict. Failure of the appellant to observe the rapid rise of the water level during broad daylight on the entire morning of March 9 speaks louder than its conclusion that it did all possible to prevent the loss.

Appellant raises in its brief the question hereinabove discussed and in addition contends that “the appellee failed to meet his burden of proving damages to his tractor while it was under appellant’s control;” and that “the trial court erred by submitting an erroneous instruction as to the measure of damages to appellee’s tractor.”

The only evidence offered relative to the damages claimed by appellee to have resulted from flooding was that offered by appellee’s witnesses. The substance of their testimony was that “three or four feet” of water got up into the truck as high as the cab and completely covered the battery. Appellee testified to large quantities of sand, water, and mud in the motor and other important parts of the truck, which we think was amply sufficient evidence of proximate cause of the damages. There was no contradictory evidence.

The final argument by appellant questions the correctness of Instruction I given by the trial court, which reads as follows:

“It was the duty of the defendant, its agents, servants and employees, to exercise that degree of care which ordinarily careful, prudent companies in similar businesses usually exercise under circumstances like or similar to those proven in this case; and if you believe from the evidence that the defendant failed to exercise that degree of care in not moving the truck, then you will find for the plaintiff and award him that amount that would be reasonably necessary to repair said truck if you believe it was damaged by reason of the water, taking into account that said repairs should have been done with dispatch and repaired with parts like or similar to those in the truck at the time, not to exceed $2,000.00; and for the reasonable rental value of a truck such as his that he sustained, not to exceed $409.71; your whole award not to exceed $2,409.71, the amount claimed.
“Unless you so believe, you will find for the defendant.”

Appellant’s objection to the foregoing instruction is directed more to the lack of the evidence to support it than to the substance of the instruction itself. The evidence shows a total cost of labor and materials of $1,601.15, occasioned by the flood. The complaint prayed for $2,000. The court followed the pleadings and not the evidence. So on the item of parts and labor, the trial court authorized the jury to a finding for appellee of not more than $2,000 (the amount asked in the complaint) when the evidence justified only $1,601.15. This instruction was prejudicial to appellant to the extent of $398.85. On a remand of this case, the circuit court will reduce the amount of the judgment by the sum of $398.85. There is no controversy as to the item of $409.71 for loss of use. In fact, the trial court was justified under the evidence in authorizing the jury to return a verdict for twice the amount it actually did find.

The judgment is affirmed except the amount is reduced to $2,010.86.

All concur.


author: CULLEN, Commissioner.

text:
    SCHEURICH & FRITZ ROOFING COMPANY, Inc., and Electric Mutual Liability Insurance Company, Appellants, v. Kenneth Earl DeWITT, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.

      Gavin H. Cochran, Marshall, Cochran, Heyburn & Wells and Charles H. Cassis, Louisville, for appellants.
    James T. Robertson, Louisville, for ap-pellee.
   CULLEN, Commissioner.

Appellee Kenneth Earl DeWitt proceeded in the circuit court under KRS 342.305 to have reduced to judgment a workmen’s compensation agreement which by board approval had the status of an award. The appellants, employer and insurer, sought to abate the action pending determination by the Workmen’s Compensation Board of a motion to reopen the award which the appellants had filed. The court refused to abate the action and entered judgment awarding recovery for past-due payments and requiring that future payments be made until the award be set aside. The employer and insurer have appealed from that judgment.

DeWitt was injured on August 28, 1965. Thereafter an agreement was entered that he be paid, on the basis of total permanent disability, the sum of $41 per week “until terminated in accordance with the provisions of the Workmen’s Compensation Law.” (The agreement later was approved by the board so as to acquire the status of an award.) Payments were made through February 11, 1966, and a tender was made of additional payments through March 4, 1966. The employer refused to make any further payments because the physician’s report of an examination of DeWitt made on March 4, 1966, was that he had made a recovery, could “return to any type duty,” and would “have no permanent disability.”

The situation remained dormant until January 26, 1967, when DeWitt filed with the circuit court a motion under KRS 342.305 to have his award reduced to judgment. Thereafter, on February 14, 1967, the employer and insurer filed with the Workmen’s Compensation Board a motion under KRS 342.125 to reopen the award, asserting DeWitt’s recovery on March 4, 1966. Then the employer and insurer, on February 21, 1967, filed their answer in the circuit court proceeding, alleging the filing of their motion to reopen and praying that the circuit court action be stayed or abated pending determination by the board of the motion to reopen. Subsequently, in May, the employer and insurer filed a supplemental answer alleging that the board had assigned their motion for a hearing. The circuit court refused to stay or abate the action and on May 12, 1967, entered the judgment here appealed from, which awarded recovery for payments past due as of the date of commencement of the action and ordered future payments until such time as the award be set aside.

Much of the argument revolves around the provision of the reopening statute, KRS 342.125, that the action of the board in ending, diminishing or increasing an award “shall not affect the previous order or award as to any sums already paid thereunder’f (our emphasis). The appellants argue that since the statute protects from being affected only such sums as actually have been paid and not sums which are past due but not paid, the spirit and intent of the statute is that whenever a reopening motion has been filed all collection of payments should be suspended in order that the board may give as full effect as possible to a retrospective reopening. In effect, this argument is that the statute intends that reopenings shall be as retrospective as possible, subject only to nondisturbance of payments that happen to have been made. On the other hand, the appellee DeWitt argues that the statute really intends that sums past due as well as sums actually paid shall not be affected by a reopening.

It is the opinion of this court that the appellants’ argument is valid; that under KRS 342.125 the only limitation upon the giving of retrospective effect to a reopening order is that “sums already paid” cannot be affected (cf. Rex Coal Company v. Campbell, 213 Ky. 636, 281 S.W. 1039); and that under KRS 342.305 the circuit court has no authority to enter judgment enforcing an award while a motion to reopen is pending (except, of course, as to such part of the award as is not sought to be reopened). As this court construes KRS 342.305 it means that an award to be reducible to judgment under KRS 342.305 must be final in the sense of being out of the hands of the board and not pending on appeal.

While the statutes as so construed seem to place the employe at a disadvanatge in that the employer, by ceasing to make payments, can to some extent control the period of potential retrospective operation of a reopening order, the employe can obtain some measure of protection against this by having his award reduced to judgment immediately after the award is obtained and by diligently enforcing payment.

The court erred in the instant case in not staying or abating the enforcement proceedings during the pendency of the motion to reopen.

The judgment is reversed with directions for proceedings in conformity with this opinion.

HILL, MONTGOMERY, OSBORNE, PALMORE and STEINFELD, JJ., concur.

MILLIKEN, J., dissents.


text:
    Raymond NICHOLS and Lena Nichols, Appellants, v. Taft HARRIS and Eunice Harris, Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Rehearing Denied March 15, 1968.
    John G. Prather, Somerset, J. M. Luker, London, for appellants.
    Meriel D. Harris, Somerset, for appellees.
   CULLEN, Commissioner.

On a former appeal of this boundary-dispute case this court, in an unpublished opinion, remanded the case to the circuit court with directions to “clarify and construe” a judgment of that court in a previous suit between the appellees herein and the appellants’ predecessor in title, involving the same lands, and then to appoint a surveyor to survey and mark the boundary line in accordance with the clarified and construed judgment. These directions were predicated upon the fact that all parties bad agreed that the judgment in the previous suit was binding, the only disagreement being as to what the judgment held. The main ambiguity in the previous judgment concerned whether the boundary was to be fixed by the location of a certain line of a General Brooks patent, which ran south 28 degrees west, or whether the boundary was to be determined by the lines of a Meece-Hunt patent.

Upon remand of the case the trial judge entered a document entitled “The Court’s Judgment Clarified” in which he said that the judgment in the previous suit meant, in substance, this: A certain line of the Brooks patent (under which the appellants claim) properly ran S 28 W instead of S 32 W as shown in the patent. Using the correct line, the Meece-Hunt patent (under which the appellees claim) is located outside the Brooks patent lines, and therefore there is no overlap of the two patents or conflict between them. Accordingly, a survey of the Meece-Hunt patent “will make an end to the lawsuit.” After entering this document the judge appointed a surveyor, suitable to all parties, to go out and survey the lines of the Meece-Hunt patent. He did so, and reported that the property lines claimed by the appellees coincided with the Meece-Hunt patent lines. Whereupon the court entered judgment for the appellees.

The appellants maintain that the judgment in the previous suit fixed the boundary in accordance with the S 28 W line of the Brooks patent, and that the opinion of this court on the former appeal so recognized. They say that the circuit court should have had the S 28 W line surveyed, or should have permitted the appellants to introduce proof as to the location of that line.

The difficulty with the appellants’ argument lies in the fact that the thing they say was clear in the previous judgment is the very thing that this court said on the former appeal was ambiguous. The whole problem was to determine what significance the judgment intended to give to the S 28 W line. In clarifying the judgment the circuit judge said that the S 28 W line was significant in that it showed there was no overlap of the patents, wherefore the true boundaries could be determined simply by running a survey of the Meece-Hunt patent. As thus clarified the judgment did not make the S 28 W line the “judgment line.”

It appears to us that the trial court did exactly what our opinion on the former'appeal directed him to do. Accordingly, under the law-of-the-case rule, the judgment now on appeal must be considered to be correct.

The judgment is affirmed.

11 concur.