text:
    Arthur MELTON, (Plaintiff) Respondent, v. ACF INDUSTRIES, INCORPORATED, (Defendant) Appellant.
    No. 31849.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.

      J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
    Edmund W. Albright, St. Louis, William L. Mason, Jr., Galena, for respondent.
   RUDDY, Judge.

Plaintiff alleged that while he was an invitee of defendant he slipped and fell by reason of “rotten, slick and broken” wooden boards in a “platform” set approximately one-half inch below the surface of a concrete sidewalk and was injured. A jury trial resulted in a verdict for plaintiff for the sum of $8500. A remittitur of $3500 was ordered by the trial court. Plaintiff complied with said order and defendant appealed from the ensuing judgment of $5000.

The principal contention urged by defendant is that plaintiff failed to make a submissible case. In determining this contention, when reviewing the evidence, we must state the facts most favorable to plaintiff and give plaintiff all favorable inferences which might reasonably be drawn from such facts.

Plaintiff, 63 years of age, was employed by defendant on June 6, 1925. His employment was terminated on August 14, 1959, when the plant ceased operation. Pursuant to the terms of a contract between defendant and a labor union, plaintiff would receive weekly from the defendant a “sub-check” in the amount of $4.00. This check appeared to be a supplement to unemployment compensation benefits received by the employee from the State of Missouri. In order to receive these sub-checks, plaintiff had to go to the Russell Avenue plant. He did so until a sign was placed on that plant by the defendant instructing those entitled to sub-checks to get them at the defendant’s plant and office at 2800 DeKalb Street. A concrete sidewalk extends north and south on the west side of defendant’s DeKalb Street office. A large weighing scale is located a few feet west of the east curb line of the street and some of the equipment for the operation of this scale extends below the surface of the concrete walk and into the building of defendant. This scale equipment is protected by a wooden cover composed of 20 boards, 9 inches wide and 4 or 5 feet in length and forms a part of the sidewalk. The boards are 2½ to 3 inches thick and extend north and south. There is a small space between each board. This wooden cover extends from the east curb of the street eastwardly to a point a short distance from the wall of the defendant’s building. These wooden boards join with the concrete walk and, as plaintiff and his witness testified, this wooden cover was approximately one-half inch below the surface of the concrete walk.

On January 29, 1960, about 10 A.M., pursuant to the instruction placed on the Russell Avenue plant, plaintiff went to the De-Kalb Street plant and office to get his weekly sub-check. He had visited the DeKalb Street plant on only one other occasion before this date. This previous visit took place in the summer time when the walk and wooden cover were dry. According to plaintiff, it had snowed the night of January 28, 1960, but at the time he visited the DeKalb Street office and plant, the snow had melted and the ground and wooden cover were damp and wet. In order to reach defendant’s office, it was necessary for plaintiff to walk southwardly on the concrete sidewalk. While doing so he was accompanied by Robert Grandberry who was beside him and to his right. As plaintiff was walking down the sidewalk he had to cross the wooden cover. When crossing the wooden cover he slipped “on a wood — ■ rotten board.” His foot then “hit the concrete that was sticking horizontal above the board.” He knew the board was rotten “because it looked like old cracked boards came up on my shoe heel.” He said when his heel hit the board “it was rotten and crumpled.” After he slipped his heel hit the concrete and knocked his leg back under him and he “could see a lot of fine stuff on the heel chipped off that board.” Several times in the course of plaintiff’s testimony he.said that the concrete sidewalk next to the wooden board covering was sticking up above the wood board covering one-half an inch. There was no snow or ice on the board covering. The boards were just wet. He fell to the ground and had to be helped by Robert Grandberry. He did not know that the boards were lower than the concrete walk. He was looking down while he was walking but did not see the board before he stepped on it. He admitted it was daylight at the time and that there was nothing to prevent him from seeing the board. He could not tell that the board had any rot in it by looking at the top of it. After he slipped he could see the board was rotten. The board “looked all right” to him before he slipped. He was looking where he was going but he could not see or tell that the board was rotten.

Clarence Morgan, called as a witness by plaintiff, was a former employee of the defendant and got his sub-check on Monday or Tuesday, whereas, plaintiff got his on Friday of each week. He originally received his sub-check at the Russell Avenue plant, but pursuant to the notice placed on the plant premises, he reported to the plant and office at 2800 DeKalb Street. On the Monday following January 29, 1960, the date of plaintiff’s fall, having learned of plaintiff’s accident, he looked at the board covering and when asked “what did you see,” he said, “I saw they was rotten.” He described the boards as weather beaten and warped and said the concrete sidewalk was about one-half inch higher than the board covering. He said that he had seen the condition of the boards and the concrete walk two or three times over a period of about three or four months. On these occasions he had noticed that the plank boards were weather beaten and dark and that the plank boards were not level with the sidewalk, adding that the boards looked like they were water soaked and had been there a “pretty good time.” He did say that the half-inch difference between the boards and the concrete walk was obvious and was plain to be seen.

Plaintiff’s Exhibits 1, 2 and 3 were offered in evidence by plaintiff and admitted by the court. They were photographs of the board covering and some of the surrounding area. These photographs were taken on July 28, 1960, at 4 P.M., which was six months after plaintiff’s fall. The appearance of long shadows in the picture shows they were taken on a bright and sunny day. Portions of the hospital records read to the jury by plaintiff showed an entry “patient slipped on ice.” This entry was signed by defendant’s plant doctor who temporarily cared for plaintiff when he entered the hospital.

Defendant’s evidence showed, inter alia, that the boards were made of white oak lumber. Robert Grandberry called as a witness by defendant, who was with plaintiff when he fell, said there was ice and snow on the boards but not on all the boards, stating some appeared to be wet at the time plaintiff fell. Although he had walked over these boards at least 13 times before the day plaintiff fell, he was not able to tell whether the boards were lower than the concrete sidewalk because the ends of the boards were covered with “a black top covering.” Other witnesses called by the defendant testified that there was snow and ice on the boards and the sidewalk, but said that some of the boards were not covered with snow and ice. Two of these witnesses testified that they did not believe there was any rot in any of the boards and another testified that he had crossed the wood covering frequently and did not see any rot in any of the boards in that covering. Defendant’s plant manager said that the agents and employees of the Safety Department of the defendant company report any defects in the plant or on the sidewalk or wood covering. He said if any repairs are needed, defendant takes care of them. This witness further testified that defendant put in new boards when needed “because any lumber that has to be in the weather eventually has to be replaced.” Defendant’s employee who was assistant to the supervisor of safety and claims testified that the scale was repaired during October and November of the previous year but that the boards in the covering were not replaced. He said he had been at the plant for four years and the boards were there before he arrived. One of defendant’s witnesses testified that he did not believe any of the. boards were below the surface of the concrete and said that the ends of the boards were covered with black top on the date of the accident. When shown one of the photographs he did not see any evidence of rot in any of the boards. The plant manager, when shown the photographs, could not tell if the concrete was above the plank, stating, “this is the concrete here and whether it is above the plank or not, you can’t tell, because from the angle the photograph was taken that could simply be a shadow there.”

Defendant, in support of its contention that plaintiff failed to make a submissible case, asserts that the portion of plaintiff’s testimony wherein he said that the board on which he slipped was rotten and that he “could see a lot of fine stuff on the heel chipped off that board” is without probative value and must be rejected. It says that plaintiff’s testimony of the alleged “rotten” condition of the hoard was rendered devoid of probative value by the three photographs, produced in evidence by plaintiff, contending that an examination of the photographs discloses the soundness of all of the boards of the covering. We have examined these photographs and we cannot place the same interpretation on them as does defendant. The pictures were taken approximately ten to twelve feet from the walkway of the boards and some of the boards show cracks and warping and darkened areas. These dark areas in the photographs are difficut to interpret. They could have been caused by moisture, oil stains or rot. Care and caution should be exercised when dealing with photographs, especially when using them to prove minute details, such as the soundness of lumber. Defendant’s plant manager, when shown the photographs, could not tell if the concrete walk was above the board covering.

Defendant cites and relies on the case of Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885. The crucial question in that case was whether or not the driver’s view of an approaching train was obscured by a contractor’s field shack on defendant’s railroad right-of-way. The physical facts as demonstrated by actual measurements, tests and photographs showed that the view of an approaching train was not so obscured and the court relying on these measurements, tests and photographs said: “And if the testimony of a witness upon a material issue is inherently impossible, or is so opposed to all reasonable probability as to be manifestly false, the courts are not bound to accept this and will wholly disregard it.” (269 S.W.2d 1. c. 891.) The photographs in that case demonstrated clearly and unequivocally that the testimony of plaintiff’s witnesses was not to be accepted. The photographs in the Lohmann case were used to identify the proximity of the contractor’s shack, a fair sized building, to the railroad tracks. The detail sought to be proved there was far greater than that sought to be proved by defendant in this case. We cannot say that the photographs in the instant case conclusively show and reveal an absence of rot in the boards.

Clarence Morgan also testified “they was rotten” when asked about the condition of the boards he examined on the Monday, following plaintiff’s fall. Defendant also says it is common knowledge that white oak is non-porous and, therefore, will not absorb moisture. We will admit that white oak lumber when exposed to dampness is quite durable. However, opposed to this assertion of defendant, is the testimony of its plant manager, who said, when referring to the board covering, “any lumber that has to be in the weather eventually has to be replaced.” The jury could have found from the evidence that this board covering had been there in excess of four years and was subjected to all kinds of weather and to the wear and tear of constant pedestrian use. The jury could have found that such exposure and use caused the “rot” found by plaintiff and Clarence Morgan.

Defendant next asserts that plaintiff was contributorily negligent as a matter of law. In this connection defendant says that plaintiff could have seen the “weather beaten and warped” condition of the board and could have seen that the board on which he claims to have slipped was depressed one-half inch below the adjoining concrete walk. These conditions, it asserts, were obvious and readily visible and it points to the testimony wherein plaintiff said that he was looking “where I was going” and “looking down,” but that he did not see the board. Of course, as defendant points out, it is hornbook law, to look is to see what is plainly visible. What defendant has failed to recognize in this connection is that plaintiff’s testimony shows that he slipped and fell because of the rotten condition of the board. He said that he could not tell that the board was rotten by looking at the top of it and that the board “looked all right”" to him before he slipped. The substance of his testimony was that he was caused to fall by reason of the rotten condition of the hoard which could not be seen before he fell. If the rotten condition of the board was neither open nor obvious, such failure of the plaintiff to see the rotten condition of the board could not have been the proximate cause of his injury. Contributory negligence, to be a defense, must be negligence contributing to plaintiff’s injury. Triplett v. Beeler, Mo., 268 S.W.2d 814. Undoubtedly, plaintiff could see that the board was wet and slippery, but this was not what caused his fall. Nor was the raised concrete the initial cause of plaintiff’s fall. It was merely a subsequent and contributing cause. He could not see the rotten condition of the board and had no reason to anticipate it or look for it. Plaintiff was not required to look out for danger where there was no reason to apprehend any. Murphy v. S. S. Kresge Company, Mo.App., 239 S.W.2d 573. We find that plaintiff was not guilty of contributory negligence as a matter of law and made a submissible case for the jury provided he was an invitee at the time of his fall.

Defendant contends that plaintiff’s presence upon its premises was not for the mutual benefit of plaintiff and defendant. Therefore, it contends, plaintiff’s status did not exceed that of a licensee. Frankly, the photographs indicate that the wooden covering on which plaintiff fell is not on defendant’s premises, but is part of a public sidewalk appropriated by defendant to its use. Wherever the location of the wooden covering may be, the fact is, the pleadings and instructions are based on the theory that plaintiff at the time of his fall was an invitee on the premises of defendant.

It is true, as defendant contends, that one cannot be declared the invitee of the person sought to be held liable, for failure to exercise due care to prevent his injury, unless he was there for some purpose of real benefit or interest to such person. Richey v. Kemper, Mo., 392 S.W.2d 266, 268; Gruhalla v. George Moeller Construction Company, Mo.App., 391 S.W.2d 585. It is undisputed that there was a contract in effect between the defendant and a union of which plaintiff was a member at the time plaintiff fell on the premises. Defendant’s own evidence shows that it was required to pay to the plaintiff a sum of money, namely, $4.00 per week, pursuant to the terms of the contract. Section 431.020 RSMo. 1959, 22 V.A.M.S., provides that all instruments of writing made and signed by any person whereby he shall promise to pay to any other a sum of money shall import a consideration. In the case of Gershon v. Ashkanazie, 239 Mo.App. 1012, 199 S.W.2d 38, 1. c. 46, it was held that the provisions of this statute apply to all contracts in writing, whether negotiable or non-negotiable, and that under this section the law imports consideration in the absence of affirmative proof to the contrary. Consideration means something which is of value in the eye of the law. It is something moving from one party to another, either of benefit to one or of detriment to the other. Black’s Law Dictionary. As said in the case of Charles F. Curry & Company v. Hedrick, Mo., 378 S.W.2d 522, 1. c. 533: “There are various definitions of ‘consideration’ as applied to simple contracts. A valuable consideration ‘may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, loss or responsibility given, suffered or undertaken by the other.’ ” Defendant presented no evidence to the effect that it derived no benefit from the contract under which the sub-checks were paid to the plaintiff and in the absence of such proof by the defendant the law imports consideration and, therefore, a benefit flowing to defendant. We find that plaintiff was an invitee within the meaning of the law at the time of his fall and injury.

Defendant contends it is entitled to a new trial because of reversible error in the giving of plaintiff’s Instruction No. 1 (citing eight specifications of error) and the trial court’s refusal to give its instructions D, E, G and H. We find the trial court erred in its refusal to give defendant’s Instruction E. That instruction reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that the board of the wooden cover stepped on by plaintiff was not rotted then the Court instructs you that, regardless of any other issue in the case, your verdict must be in favor of defendant and against plaintiff.”

An element essential to plaintiff’s recovery and contained in his Instruction No. 1 required the jury to find that there were wooden boards that were “rotten” and that “by reason of said * * * rotten * * * condition * * * said sidewalk was rendered unsafe and dangerous” and that “the plaintiff, while walking southwardly on the sidewalk, as a direct result of the negligence of the defendant ACF Industries, Incorporated, * * * plaintiff’s left foot slipped upon said slick and rotten plank, if so, the surface crumbling under his said foot, if so, and directly causing said foot to strike a raised portion of said surrounding concrete about one-half inch in height above the said depressed boards, if so, and plaintiff fell to said sidewalk there as a direct result of his said left foot slipping upon said rotten board, if so, and * * * plaintiff was injured, * * *The jury was then further instructed that if they so found their verdict must be in favor of plaintiff and against defendant.

A necessary and essential finding by the jury under that instruction was that the board was rotten. There is little doubt that this was submitted in plaintiff’s Instruction No. 1 as being the “cause” of his fall. We think defendant’s Instruction E exactly converses an essential element of plaintiff’s instruction. Plaintiff engages in a game of semantics in order to justify the court’s refusal in giving defendant’s Instruction E. Plaintiff points out that his submission was of a “rotten” board, whereas, defendant’s converse instruction submitted a “rotted” board. This is a distinction without a difference. We think defendant’s Instruction E is in substantially the same language as plaintiff’s Instruction No. 1.

Plaintiff next contends that said Instruction E was not supported by any evidence. The answer to this is found in Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 1. c. 464, in the following language.:

“If a true converse instruction, it did not need testimony to sustain it; because, absent a judicial admission by a litigant having the negative that the testimony in favor of the litigant having the affirmative and the burden was true, the credibility of the witnesses giving oral testimony establishing the affirmative remains for the jury.”

However, plaintiff’s statement that there is no evidence to support the instruction is without merit. At least three witnesses called by the defendant testified that they did not see any rot in any of the boards in the wooden covering. Defendant’s Instruction E, which was refused by the court, submitted the converse of an essential element to recover by plaintiff which was not covered by other instructions on behalf of defendant. Defendant was entitled to have this instruction given by the court. In the case of Frazier v. Ford Motor Company, 365 Mo. 62, 276 S.W.2d 95, 1. c. 101, the court said:

“In Boles v. Dunham, Mo.App., 208 S.W. 480 [3], the court held it was error to refuse a defendant’s instruction presenting the converse of plaintiff’s case, stating: ‘Defendant was undoubtedly entitled to it.’ See Davis v. Springfield Hospital, Mo.App., 196 S.W. 104, 108 [4].”

We need not discuss the other complaints that defendant has made in connection with the giving of plaintiff’s Instruction No. 1 and the refusal of its other instructions, because on a retrial of this case MAI will be used.

The judgment is reversed and the cause is remanded for a new trial.

WOLFE, P. J., and J. MORGAN DON-ELSON, Special Judge, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    BOGERT CONSTRUCTION COMPANY, a Corporation and Assignee of Calvin H. Bogert, doing business as Bogert Construction Company, Plaintiff-Respondent, v. Marvin E. LAKEBRINK and Evelyn B. Lakebrink, Defendants-Appellants.
    No. 32186.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 13, 1966.

      Theodore P. Hukriede, Washington, for defendants-appellants.
    Blumenfeld, Kalishman, Marx & Tureen, Charles E. Kopman, Richard Marx, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

This is an action to establish a mechanic’s lien against the property of the defendants brought by the contractor who built a house for them. The trial court awarded plaintiff judgment in the amount of $10,539.44 and a lien. Only two of the allegations of prejudicial error stated in the brief are properly before this court and only one of these was included in the motion for new trial. It deals with the trial court’s action in admitting evidence of and allowing an amount to plaintiff arising from his supervision of the work on defendants’ house. The other allegation of prejudicial error properly before us does not arise from the motion for new trial but since it questions the sufficiency of the evidence to support the judgment in this court tried action, it may be raised for the first time in the brief. Civil Rule 79.03, V.A.M.R. The evidence herein stated will be limited to that bearing on those issues.

The parties had entered into a written agreement for the building of the defendants’ house. There are four provisions of that agreement pertinent to the issues here involved. Paragraph 2 thereof provided: “This contract is subject to both Bogert and Lakebrinks agreeing on plans and specifications plus color and finish. Said plans and specifications shall be signed by both parties hereto. The plans and specifications shall become a part of this contract.” That same paragraph also provided that the total payment to plaintiff was to be $45,800.00. Paragraph 3 provided that the plaintiff was to furnish at his own cost and charge, all the material and labor for the items covered by the agreement. (The exclusions from the agreement are of no importance to the issues involved -in this appeal.) Paragraph 5 provided that in the event of alterations or changes desired by the defendants, “ * * * the cost and expense thereof is to be agreed upon in writing, and such agreement is to be signed by the parties hereto.” Paragraph 7 required the plaintiff to fully pay the material men and workmen so that no liens would be filed by them against the property.

Plaintiff’s evidence was that there were extensive and frequent changes made in this house as work on it progressed and that, with reference thereto, the provisions of paragraph 5 of the contract were never obeyed or even referred to. Defendants contended that the only change that was made was not at his order and resulted from positioning the house on an improper grade. The undisputed evidence was that defendants had paid a total of $47,736.77 to the plaintiff prior to this action. The defendants’ own evidence was that Dr. Lakebrink paid material men and workmen direct. His testimony was, “That was the prior arrangement, that they would be okayed by the construction company and then they would be sent to me so that I could write the check to them.”

The plaintiff’s theory, set forth in his pleading and as stated throughout the trial, was that this contract never came into full force and effect; was never acted upon nor did the parties proceed thereunder; and in fact was discarded prior to the inception of the work. Accordingly, the plaintiff, proceeding upon a theory of quantum meruit, set up items in a lien statement totaling $18,179.03. Of this sum $13,762.14 represented materials furnished or work done for which plaintiff contended defendants owed him, and $4,416.89 represented the balance due on his supervisory fee of $6,-241.77 after crediting $1,824.88 already paid. During the trial inquiry was made of the plaintiff regarding the value of his supervisory services. Defendant objected on the grounds that this was not an item set forth in the lien statement and also because it was not a proper item for allowance in an action based on quantum meruit. Plaintiff’s counsel then stated that the language “Prime contractor’s 10% fee,” as stated in the lien statement, may have been a misuse of terms but that plaintiffs theory, as shown by the question he asked plaintiff, was that he was entitled to the value of plaintiff’s supervisory services and that plaintiff was not seeking to recover for any profit. The trial court overruled the objection. The plaintiff was then questioned at length regarding the time involved and the type of supervision he rendered and concluded by giving his opinion of the reasonable value of his supervisory services as $6,000.00. Extensive cross examination covered the same matters.

The trial court awarded the plaintiff $7,342.13 out of the $13,762.14 total stated in the lien statement for materials and labor, $4,500.00 for supervision, and granted defendant a credit of $1,202.79 representing an overpayment, for a total judgment of $10,539.44. Of the items which the court allowed for materials and labor, the defendant offered evidence as to only one item, a charge of $742.50 to Awning Service and Sales. Dr. Lakebrink testified that the materials making up this item had not been delivered or installed in the house and that he had personally ordered some different items of the same nature but had paid for them. The plaintiff’s evidence on this matter was that he did not know whether these materials comprising this item were delivered and installed in the house or not. Defendants offered no evidence as to any other item allowed by the trial court except the overpayment heretofore stated and the balance due on the masonry work. However, as to this last matter the defendants raise no point on this appeal.

The extent of our review of the trial court’s decision is too well known to require extensive citation of authority. We are to consider both the law and the evidence de novo granting deference to the findings of the trial court when based upon an issue of credibility of the witnesses. Oliver L. Taetz, Inc., v. Groff, 363 Mo. 825, 253 S.W.2d 824 [1]; Mo.Digest, Appeal and Error,

The principal issue to be ruled is whether the evidence supports this judgment. Defendants contend it does not. Their entire argument in this regard is based upon the contention that, as stated in their brief, “* * * a party may waive a contract and sue in quantum meruit for labor done and material furnished, but the recovery cannot exceed the contract price.” To that effect they cite Taetz v. Groff, supra. That case does hold that where an express contract has been fully performed by one party, nothing remaining for the other to do but make payment, the one who has fully performed may, at his election, declare on the contract or proceed for quantum meruit. In the event he chooses quantum meruit then his recovery is limited to the price agreed in the contract. However, the court in Taetz, supra, immediately prior to the recitation of the rule upon which defendants rely, found there was no abandonment of the contract there involved. In the instant case it is clear from the evidence that first, there was no binding contract ever entered into by these parties; second, even if there had been, the defendants’ actions show it was abandoned and disregarded. There was no contract in force because by its very terms, as found in paragraph 2, the contract was made subject to the parties reaching an agreement upon plans and specifications “plus color and finish.” This court has held that “If the essential terms of the contract are reserved for future determination of the parties, there can be no valid agreement.” Tessfer v. Duzer, Mo.App., 309 S.W.2d 1, 1. c. 3, 4. Color and finish may or may not, depending upon the nature of the work and other circumstances in a given case, be essential items. In any event, few things, if any, can be said to be more essential to a contract for the erection of a house than the plans and specifications. The only evidence is that this provision was never complied with by the parties, and, in fact, the defendants admitted additional drawings were made and followed. That being so, the condition upon which this agreement was to become effective never took place and the contract cannot be said to govern the rights and obligations of these parties.

Even if we were to assume, arguen-do, there had been a contract in full force and effect, the evidence of abandonment is abundant. Whatever changes were made, whether extensive as plaintiff testified and the trial court believed, or minor as the male defendant testified, were accomplished in complete disregard of the provisions of paragraph 5 of the contract. Moreover, the defendants admit to having paid plaintiff almost $2,000 more than the price called for by the contract and this without any showing that there were extras requiring such overpayment and in seeming refutation of their own testimony that there were no major changes made in the house calling for additional payments. It must also be noted that defendants made no effort, by counterclaim filed prior to trial or at any time thereafter, to recover this amount of money paid in excess of the price called for by a contract they contend was in full force and effect. In addition, in dereliction of the provisions of paragraphs 3 and 7, the defendants’ own evidence is that they paid material men and workmen directly, stating that they did so only after the payment had been “okayed” by the plaintiff. If there had been an effective contract, it was abandoned by the parties.

Under either view, i.e., that there was no effective contract to begin with or that whatever contract existed was abandoned by the parties, the plaintiff is not restricted to the amount stated in the contract. The situation is, to all practical effect, the same as that presented in Baerveldt and Honig Const. Co. v. Dye Candy Co., 357 Mo. 1072, 212 S.W.2d 65. In that ease the court found the contract had been abandoned by the parties and rejected the attempts of the defendant in that case to restrict recovery to the contract price. The court there found abandonment due to the numerous and extensive changes made as construction progressed. The instant case presents a factual situation calling even more strongly for a finding the parties had abandoned their agreement. This, because in addition to changes made in the plans, the defendants admittedly paid more than the price called for in the contract, making no attempt to recover what would be an excess payment had their contention the contract was in effect been upheld, and also because the defendants proceeded to pay material men and workmen on their own, in disregard of the provisions of the contract relating thereto.

However, we do find the allowance of one item by the trial court unsupported by the evidence. The amount of $742.50 by the Awning Service and Sales should not have been allowed plaintiff. The plaintiff did not prove this item was actually furnished by him and used in the house. His evidence was that he did not know whether it was or not. The defendants’ evidence was that it was not used on this job and in fact replaced by other material personally purchased by them. Accordingly, that item must be deducted from the judgment.

We pass now to the contention the plaintiff cannot, in a quantum meruit proceeding, recover fees for supervising the work done on this house. The right of a person performing services such as those rendered by the plaintiff to recover the reasonable value of such services is recognized in Knoch v. Frye, Mo.App., 363 S.W.2d 737, although that case is decided upon the issue of whether there was evidence of the reasonable value of such services. This court, in Rodgers v. Levy, Mo.App., 199 S.W.2d 79, recognized the distinction between an attempt, in a quantum meruit action, to recover for profit and one to recover for personal services, stating that “If plaintiff was entitled to recover at all, the action being in quantum meruit, he was entitled to recover the reasonable value of his personal services as well as what he paid out for the services of others, but he was not entitled to such a charge as a profit on the contract.” In the very case cited and relied upon by the defendants, Bradley Heating Co. v. Thomas M. Sayman Realty & Investment Co., Mo., 201 S.W. 864, l.c. 868, the court, refusing to award profit in a quantum meruit action, stated: “So, too, if the contractor had put an item in his account for his services rendered in assembling the material and labor and superintending the work, and made proof of the reasonable value thereof, we might have a different case.” While the language used in the lien statement is awkward and ambiguous, the theory upon which plaintiff sought and was awarded fees for supervision was made clear at the trial. Defendants certainly had no doubt that it was not for profit but for services as their cross-examination went entirely as to the amount of time spent and nature of supervisory work plaintiff did on this job. This allegation of prejudicial error is ruled adversely to the defendants.

The judgment must be reversed and the cause remanded to the trial court with directions to enter its judgment for the plaintiff in the amount of $9,796.94 and to grant him a lien for that amount against the defendants’ property. Plaintiff to pay the costs of this appeal.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. Judgment reversed and cause remanded to the trial court with directions to enter its judgment for the plaintiff in the amount of $9,796.94 and to grant him a lien for that amount against the defendants’ property. Plaintiff to pay the costs of this appeal.

ANDERSON, (Acting) P. J., RUDDY, J., and BLOOM, Special Judge, concur.


author: ANDERSON, Judge.

text:
    Ollie Mae WILKINS, Plaintiff-Respondent, v. The CITY OF ST. LOUIS, a Municipal Corporation, Defendant-Appellant.
    No. 32384.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 13, 1966.

      Thomas F. McGuire, City Counselor, Gary M. Gaertner, Associate City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for defendant-appellant.
    Wyvetter H. Younge, Charles R. Old-ham, St. Louis, Richard G. Younge, E. St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, which reversed a decision of the Civil Service Commission of said city, and remanded the cause for further proceedings.

The subject matter of the action was whether plaintiff’s right to apply for and receive sick leave with pay under Section 20 of Ordinance 50661 was automatically terminated on the date of the transfer of Malcolm Bliss Mental Health Center, where she worked, to the State of Missouri. Said ordinance provides as follows:

“SECTION 20. Sick leave with pay shall be granted to bi-weekly paid employees when approved by the employees’ appointing authority for excused absence of an employee because of sickness, injury or physical inability to perform assigned duties. * * *
“Any bi-weekly paid employee who shall suffer personal injury or unusual sickness arising out of and in the regular course of his employment while engaged in, or about the premises where his duties are being performed or where his presence is required as a part of his service shall report such injury or sickness to his immediate superior who shall in turn report, through proper channels, to the City Counselor and Department of Personnel all facts concerning the incident. The appointing authority shall provide such written information and recommendations as may be requested by the City Counselor. The City Counselor or his designated representative shall, upon his determination that such personal injury or unusual sickness arose in such manner, recommend in writing to the appointing authority the amount of disability leave with pay to be granted for such injury or unusual illness and the appointing authority shall grant the amount recommended by the City Counselor.”

The position of “Hospital Attendant I” is listed in said ordinance as a bi-weekly employee entitled to benefits under the terms of the act.

In 1957, plaintiff was employed by the City as a Hospital Attendant I. On July 3, 1962, she injured her back while performing the duties of her employment at the Malcolm Bliss Mental Health Center. At that time Malcolm Bliss Mental Health Center was an institution owned and operated by the City of St. Louis. The parties have stipulated that plaintiff’s injury arose out of and in the regular course of her employment.

As the result of the accident, plaintiff had an operation for a slipped interverte-bral disc. Following this operation, she experienced difficulty in urinating due to damage to the nerve supply to the bladder which in turn was caused by the disc operation. In March 1963, she experienced complete inability to void. To remedy this situation, a second operation was performed with the result that a fistula developed causing plaintiff to lose control over the flow of urine from her bladder to such an extent she cannot go a full hour during the daytime without voiding. Her physician testified it was his opinon that at this stage the condition was permanent, and that plaintiff was not employable as of the date he last saw her (May 5, 1964). He further stated “actually this may be only the beginning of her medical problem in that ofttimes these patients are required to have a complete diversion of the urinary stream or to a pouch or some other appliance; that they generally are plagued with repeated infections because they do not void satisfactorily. * * *”

Thereafter, the City Counselor made a determination that plaintiff was entitled to sick leave with pay. This was not a final determination, as appears from a letter dated January 23, 1964, written by an Assistant City Counselor to Dr. Mowrer, Acting Superintendant and Medical Director of Malcolm Bliss. This letter was introduced in evidence. It is in words and figures as follows:

“Dear Dr. Mowrer:
“This is an answer to your request for an opinion of this office concerning the granting of disability leave to an employee of yours by the name of Mrs. Ollie Mae Wilkins.
“The facts that were reported to- this office by your Center were as follows: On July 3, 1962, Mrs. Ollie Mae Wilkins was assisting about five or six patients who had gotten on the key elevator when the door automatically opened. She assisted all the patients back to the ward except Irene Davis, who did not want to get off. When Mrs. Davis appeared to-be falling backward, Mrs. Wilkins in an attempt to aid her threw out her arms to catch her and in doing so felt a slight pull in her back. On July 4, Mrs. Wilkins, felt considerable pain in the lower portion of her back, consulted her physician and was later hospitalized.
“There is no question that such injury arose out of and in the regular course of employment of Mrs. Wilkins in the City Service. Therefore, it is the recommendation of this office that disability leave with pay be granted starting as of June 5, 1963, to February 29, 1964, for this employee.
“It is well to note that this is not a final determination of disability leave due to the fact that Mrs. Wilkins is still under treatment. Vilray P. Blair, Jr., M. D., who examined Mrs. Wilkins for this office, so stated that the above apparently had a severely herniated fifth lumbar disc with resultant damage to the nerve supply to the bladder and rectal sphincters. It is suspected she is leaking urine through a vesico-vaginal fistula at the present time; and when this is repaired, it is hoped that she’ll be continent. He concluded it would be desirable to see the patient after bladder surgery.
“Dr. Jones of Homer G. Phillips Hospital, the physician for Mrs. Wilkins, informed me that the above had undergone bladder surgery; but it would be four to eight weeks before it could be determined if the operation was successful.
“Both doctors agreed that at the present time the employee would be unable to return to work.
“Dr. Jones informed me that if this operation is successful that Mrs. Wilkins could thereafter return to her normal duties. If such operation is not successful, then it might be sometime before this condition can be corrected and the patient returned to her normal duties.
“Therefore for the above reasons, I am recommending that this employee be carried on disability leave to February 29, 1964, at which time I will inquire as to her medical condition and whether it is necessary to keep her on disability leave or have her assume her duties in City Service.”

On April 1, 1964, the City of St. Louis transferred Malcolm Bliss to the State of Missouri. Prior to the transfer, plaintiff was notified that her disability leave with pay would be terminated as of April 1, 1964, by reason of said transfer. The director of Malcolm Bliss was notified by the City Counselor’s office of this determination by a letter dated March 5, 1964. Said letter is as fellows:

“Dear Mr. Anderson:
“This is to confirm our telephone conversation of today in that I advised you to carry an employee of yours by the name of Ollie Mae Wilkins on the City payroll until her position is taken over by the State.
“I was informed by her physician, Dr. Marion E. Jones, that her period of disability would be at least an additional six weeks.
“Therefore, our granting her additional disability leave is contingent upon her position remaining under City Service. I am informed that her position will be assumed by the State of Missouri on April 1, 1964, and as a result, her disability leave by the City shall halt since such position comes under the control of a different governmental unit on the above date.”

On March 18, 1964, plaintiff appealed' from the decision terminating her disability status. Said appeal was to the Civil Service Commission of the City of St. Louis. In her letter to the Director of Personnel, she stated that the two proposals made to her in the letter notifying her of the termination of her disability status were not acceptable to her. The proposals were: (1) transfer to State employment; (2) resign from City employment as of March 31, 1964, with lump sum vacation pay and placement on the appropriate City re-employment register.

Plaintiff never reported to work for the State of Missouri. In a letter dated May 25, 1964, plaintiff was advised by the State that she was being dismissed from service as of June 8, 1964, for physical inability to perform her duties.

0

Plaintiff’s appeal to the Civil Service Commission came on for hearing on June 18, 1964. On August 20, 1964, the Commission made findings of fact and conclusions of law, the material parts thereof being as follows:

“FINDINGS OF FACT
“1. Appellant was employed as a Hospital Attendant I by the City of St. Louis, Malcolm Bliss Mental Health Center on July 3, 1962. While employed, the Appellant injured her back while attempting to help a patient at the hospital who appeared to be falling.
“2. As a result of such service incurred injury, the Appellant has been given $4,685.33 in disability pay as of March 31, 1964, by the City of St. Louis.
“3. As of April 1, 1964, the State of Missouri commenced operation of the Malcolm Bliss Mental Health Center and all employees and positions operated by the City of St. Louis became positions and employees of the State of Missouri.
“4. The Appellant and her appointing authority who were so employed by the City of St. Louis at the Malcolm Bliss Mental Health Center therefore became personnel of the State of Missouri on April 1, 1964, and no longer were under the compensation ordinance of the City of St. Louis as of that date.
“CONCLUSIONS OF LAW
“2. Ordinance 50661, Section 20, states ‘any bi-weekly paid employee who shall suffer personal injury * * *.’ The Appellant, Ollie Mae Wilkins, was no longer a bi-weekly paid employee of the City of St. Louis as of April 1, 1964. The Appellant was an employee of the State of Missouri as of April 1, 1964; therefore, the City had no further jurisdiction under Ordinance 50661, Section 20, to grant any further disability leave with pay to the Appellant.
“3. Ordinance 50661, Section 20, further states ‘The City Counselor or his designated representative shall, upon his determination * * * recommend in writing to the appointing authority the amount of disability leave with pay to be granted for such injury * * * and the appointing authority shall grant the amount recommended by the City Counselor.’ The appointing authority of the Appellant is no longer under City Service as of April 1, 1964, but under the control of the State of Missouri; therefore, the provisions of Ordinance 50661, Section 20, could not be met for there is no longer any appointing authority who could grant any further disability leave with pay.
“4. Article XVIII, Section 1(b), of the Charter of the City of St. Louis states as follows: ‘ “City service” or “service of the city” means all positions as herein defined, that are subject to control and regulation by the City of St. Louis as a municipal corporation or any of its officers or other agencies as such.’ Article XVIII, Section 1- (i) of the Charter of the City of St. Louis and the adopted rules of the Civil Service Commission so define the word ‘employee’ as follows: ‘ * * * means a person legally occupying a position.’ Neither the position nor the person is under the control and regulation of the City of St. Louis; and, therefore, the City is without jurisdiction to grant any further disability leave with pay.
“5. Article VIII, Section 8 of the Charter of the City of St. Louis prohibits any employee of such city to hold any office or employment under the state or other political subdivision while a eity employee. This Appellant is a State employee; and, therefore, is prohibited from holding any employment with the City.
“6. Ordinance 50661, Section 20, has so empowered the City of St. Louis to compensate its employees who have been injured, while on the job, by allowing them disability leave.
“7. Ordinance 50661, Section 20, does not contain the right to give a lump sum settlement to a former City employee whose position is now under the control of the State, since Ordinance 50661, Section 20, granting disability leave with pay does not provide in any manner fot lump sum settlements.
“THEREFORE, it is the decision of the Civil Service Commission that the Appellant’s disability pay under Ordinance 50661, was properly terminated as of April 1, 1964, since the Appellant is no longer a City employee and the position is under State control; nor do we have any authority in the present ordinance to give any lump sum settlement to a former employee.
Mr. George L. Stemmier, Member, dissents.”

On review the Circuit Court reversed, and held:

“Decision of the Civil Service Commission of the City of St. Louis of August 19, 1964 reversed and cause remanded to said Commission with directions to have the City Counselor pursuant to Section 20 of Ordinance 50661 determine the amount of Plaintiff’s disability leave with pay and recommend same to her appointing authority without regard to the transfer of Malcolm Bliss Mental Health Center by the City of St. Louis to the State of Missouri on April 1, 1964.”

From this judgment the present appeal was taken.

Appellant contends that the trial court erred in its decision; that on April 1, 1964, plaintiff’s employment by the City was terminated by the transfer of Malcolm Bliss to the State, thus making her an employee of the State and ineligible for further disability leave with pay under the provisions of Ordinance 50661, Section 20. In support of its argument, appellant cites and relies on Article XVIII, Section 8 of the Charter of the City of St. Louis which by its terms prohibit any City employee from holding any office or employment under the State or other political subdivision, and Rule l(w) of the rules of the Civil Service Commmission which defines an employee as a person legally occupying a position.

The fundamental fallacy of appellant’s position and the ruling of the Civil Service Commission is in the view that plaintiff became an employee of the State upon the transfer of Malcolm Bliss on April 1, 1964. Plaintiff never agreed to work for the State, but on the contrary in her letter to the Director of Personnel expressly stated that a transfer to State employment was not acceptable to her. Nor was there any implied agreement of employment by the State, for she, at no time, performed any service for the State.

The relation of employer and employee must arise out of a contract of employment, express or implied between an employer on the one hand and the employee on the other. 56 C.J.S. Master and Servant § 1, p. 24, and every person has a legal right to dispose of his own labor or service and to work for whom he pleases, 56 C.J.S. Master and Servant § 2c, p. 32. A contract of employment cannot arise against the will or without the consent of an alleged party thereto, 56 C.J.S. Master and Servant § 5, p. 63.

It is true that by the transfer of Malcolm Bliss Mental Health Center to the State, there was no longer a city position at said hospital, but that fact does not deprive plaintiff of rights which had accrued prior to said transfer. To so hold would be a too narrow and unfair construction of the ordinance. The position of Hospital Attendant I specified in the ordinance was not abolished. Plaintiff was employed as a Hospital Attendant I, and was found to be injured while in the performance of her duties as such at a time when the ordinance was in full force and effect. We find nothing in the ordinance or under the general law which deprives her of the benefits under the ordinance. The City Counselor should make his recommendations with reference to plaintffs rights under the ordinance, and if further disability leave with pay is recommended plaintiff’s immediate superior, who is her present appointing authority, should grant the amount so recommended.

The judgment is affirmed.

WOLFE, P. J., and RUDDY, J., concur.


author: R. C. TARTAR, Special Commissioner.

text:
    LOCAL INDUSTRIAL FINANCE COMPANY, Appellant, v. Buster McDOUGALE and Ida Mae McDougale, Appellees.
    Court of Appeals of Kentucky.
    March 18, 1966.
    Elmer Morgan, Mapother, Morgan & Stansbury, Louisville, for appellant.
    Robert E. Fleming, Kunzman & Fleming, Louisville, for appellees.
   R. C. TARTAR, Special Commissioner.

The plaintiff, Local Industrial- Finance Company, filed an action against the defendants, Buster McDougale and Ida Mae McDougale, seeking judgment for the balance due on their promissory note, dated January 12, 1961, amounting to $1,840.00 and interest.

The plaintiff alleged that to induce the making of the loan the defendants made and delivered to plaintiff their financial statement in writing which showed that they owed $7,924.02 to various parties; that the financial statement was false and untrue and was made with knowledge of its falsity for the purpose of inducing plaintiff to make the loan or extension of credit and that it was relied on by the plaintiff to its damage in the sum sued for by plaintiff.

The defendants answered admitting their application for the loan but denying all other affirmative allegations in the complaint.

Thereafter, the plaintiff filed a motion for a summary judgment against the defendants on the pleadings, exhibits and depositions filed for the sum of $1,840.00 with interest. The Court below sustained the motion for judgment but fixed the amount of the judgment against the defendant Buster McDougale at $677.35, being the amount of new money (and charges therefor) obtained from the plaintiff on January 12, 1961. Recovery was denied as to the balance, being the amount due on McDougale’s note of January 22, 1960, which had been renewed and incorporated in the note of January 12, 1961. The plaintiff’s motion for an appeal has been sustained.

For the purpose of brevity hereafter the plaintiff, Local Industrial Finance Company, will be referred to as Local, and the defendant Buster McDougale will be referred to as McDougale.

The pleadings did not mention bankruptcy but it quickly developed that bankruptcy proceedings instituted by McDougale less than three months after obtaining the loan and extension of credit from Local and his discharge in bankruptcy would dominate this litigation. By common consent of the parties the issues have been centered on McDougale’s discharge in bankruptcy and the effect thereof, under Section 17(a) (2) of the Bankruptcy Act, on the note in suit and McDougale’s liability thereon. There is no claim that McDougale had not received value in full or that any part of the note is not a just obligation.

Our discussion can largely be confined to Section 17(a) (2) itself. It will not be profitable to trace in detail the developments of this and related sections of the Act, or to mark the legislative trail in all its efforts to bar the door of escape to the false and fraudulent. Section 17(a) (2) of the Bankruptcy Act as amended in 1960, 11 U.S.C.A. § 35(a) (2), provides in pertinent part as follows:

“(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive * *

This is known as the Celler Amendment. The section so far as applicable here had previously granted a discharge except as to “liabilities for obtaining money or property by false pretenses or false representations.”

The issue here is this: Whether the exception made by Section 17(a) (2) is limited to the new money (and charges therefor) obtained by McDougale from Local on January 12, 1961, as the trial court held, or embraces also the extension of and renewal of credit on the balance due on the original note, obtained by him at the same time and as a part of the same transaction.

As stated, the issue was disposed of by the trial court on Local’s motion for a summary judgment. It is familiar law that summary judgment may be granted only where no genuine issue of material fact exists and the party is entitled to judgment on the law applicable to the facts as established on and by the motion. Gevedon v. Grigsby, Ky., 303 S.W.2d 282. This is such a case. The depositions both for Local and for McDougale leave no genuine issue of fact. The falsity of the financial statement made by McDougale and given by him to Local in connection with the January 12, 1961, loan and renewal and extension of credit is admitted by him. He concedes that he had failed to list thereon eight other creditors whom he owed nearly $5,-000.00. In his own handwriting on the financial statement he had written “we have no other debts”. McDougale frankly .stated that “I was hurting, and the guys was pushing me, and I had to have the money,” and that “I will just make the statement that it was bearing on my mind at that time, that if I listed everybody, I couldn’t get the money.” And it is perfectly clear that he knew that in addition to the new money he wanted and received, he was obtaining a renewal and extension of the balance due on the January 1960 note.

This balance was incorporated in the new note, and the old note was marked paid and returned to McDougale. Ida Mae Mc-Dougale, who also signed the financial statement, testified that she had no corrections or additions to make to her husband’s deposition, and that she would make the same answers to the same questions.

The financial statement which is a part of the record contains the heading that it is made, “For the specific purpose of obtaining a loan or extension of credit, either as principal, co-maker or guarantor from Local.” And after providing spaces for listing, “The only persons or companies to whom I owe money” etc., co-maker and other relationships, and “other liabilities or other indebtedness of any kind whatsoever” etc., it concludes with the statement that “notwithstanding any previous dealings I may have had with Local I understand that in extending credit to me, it is relying on my financial condition as shown in this statement” etc.

This is the statement that McDougale admits that he falsified. He also admits that there was no question in his mind that Local was relying on him to give the information sought by the statement. The depositions of the employees of Local leave no doubt as to Local’s reliance on the statement regardless of any past dealings with McDougale. They show that McDougale received and knew that he was receiving not only new cash and insurance certificates, but also an extension of his liability for the balance of the old note, all incorporated in the new note, with a service charge and precomputed interest. And they show that the new transaction was made by Local on the basis of McDougale’s financial statement. None of this is controverted by any opposing testimony.

This leaves us with the question of law — ■ the effect of Section 17(a) (2) of the Bankruptcy Act properly construed, on Mc-Dougale’s total liability on the new note of January 12, 1961. The question is one of first instance before this Court, and its answer by this Court will establish a precedent. The language of Section 17(a) (2) is clear and unambiguous. There are no complexities in its terminology. It may well be that we could find the conclusion of the whole matter in the language of the section itself, and that no precedents or illustrations are necessary to make its exemptions applicable to the transaction in controversy. But “the world must have emphatic warrant.”

We notice that prior to the 1960 amendment this court gave liberal construction to the exemption as then worded. False pretense, fraud and misrepresentation have always been anathema to our courts. Bingham v. Kendall, 223 Ky. 661, 4 S.W.2d 681; Loony Creek Coal Co. v. Lewis, 227 Ky. 323, 12 S.W.2d 852; Time Finance Co. v. Nelson, 312 Ky. 255, 227 S.W.2d 189, 17 A.L.R.2d 1204.

We further notice that there are two Kentucky statutes which are illustrative here, showing the repugnancy of fraud and false pretenses to public policy, and the stern measures which our state legislature has taken to combat the use of such devices in the procurement of money or property or the extension of credit. KRS 434.090(1) provides:

“Any person who knowingly makes or causes to be made, either directly or indirectly, any false statément in writing, with intent that it shall be relied upon, respecting the financial condition or means or ability to pay, of himself or any other person in whom he is interested or' for whom he is acting, to procure in any form whatsoever either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the discount of an account receivable or the making, acceptance, discount, sale or endorsement of a bill of exchange or promissory note, for the benefit either of himself or the other person, shall be confined in the penitentiary for not less than one year nor more than five years.”

And KRS 411.070 provides that any person who violates KRS 434.090, supra, shall be personally liable to any person damaged by the violation for the amount of the damage. Thus, we see something of a parallel in our own laws to the exemption provision of Section 17(a) (2).

Prior to the 1960 amendment of Section 17(a) (2) of the Bankruptcy Act, 11 U.S. C.A. § 35(a) (2), supra, we find that the majority of the courts of other jurisdictions took the view that where the debtor being liable on an existing note had negotiated a new loan to include its unpaid balance, and an additional amount in cash as well, and had made a false financial statement to induce the making of the new loan, the creditor was entitled to recover the entire indebtedness, notwithstanding the subsequent discharge of the debtor in bankruptcy. Personal Finance Company v. Bruns, 16 N.J.Super. 133, 84 A.2d 32; Public Loan Corporation v. Hood, Ohio Com.Pl., 125 N. E.2d 770; Personal Finance Company of Paterson v. Snyder, 131 N.J.L. 597, 37 A.2d 822; Gregory v. Williams, 106 Kan. 819, 189 P. 932 (Kansas) ; Stewart v. Emerson, 52 N.H. 301; National Finance Company of Utah v. Valdez, 11 Utah 2d 339, 359 P.2d 9; Elisberg v. Simpson, Sup., 173 N.Y.S. 128; In re Russell, D.C., 52 F.2d 749; Erickson v. Bicknell, 8 Cir., 28 F.2d 729.

Without question the 1960 amendment must be said to strengthen and reinforce this view, its language expressly covering the giving of a false statement to obtain money or credit, or to obtain an extension or renewal of credit. And so a large majority of the courts of other jurisdictions have held that where the debtor obtained the renewal or extension of the balance due on an old note and new cash, all incorporated in a note, by false pretenses, false representations, or the giving of a false financial statement, he is not released by subsequent discharge in bankruptcy from any part of the new note. The whole note is still collectible. C H F Finance Company v. Jochum, 241 La. 155, 127 So.2d 534; MAC Loan Plan v. Cooper, 23 Conn.Sup. 184, 179 A.2d 313; First Credit Corporation v. Wellnitz, 21 Wis.2d 18, 123 N.W.2d 519.

The last case cited, First Credit Corporation v. Wellnitz, is especially significant since prior to the 1960 amendment the Wisconsin court was one of the minority, limiting the creditor to the cash advanced. The facts in the Wellnitz case are in striking analogy to the facts here.

The mere fact that past business dealings with the debtor have been satisfactory does not preclude operation of this rule. Past experiences may perhaps excite interest in new business, but if the false financial statement figures in the making of the new loan or even if there is only partial yet real reliance thereon, the debtor will still be liable for the full amount, subsequent to his discharge in bankruptcy. Beneficial Finance Company v. Gardache, (La.App.) 164 So.2d 132.

All elements are made out here. There is the false financial statement of a material matter made by McDougale, knowing it to be false. There is the plainest intent on his part to deceive Local thereby, and to obtain fresh money, and the extension of old credit. There is the reliance of Local thereon and there is damage to it in the full amount sued for. The false statement encompasses and permeates the whole transaction.

On the basis of the undisputed facts of this case, the language of Section 17(a) (2) and the authorities cited, the conclusion to be drawn here is ineluctable. The court below erred in awarding judgment limited to the new cash and equivalents received by McDougale and in holding that the balance of the old note included in the new note was released by McDougale’s discharge in bankruptcy. Local is entitled to judgment in the full amount of the note sued on with interest.

We recommend that the judgment be reversed and that the trial court be directed to enter judgment in conformity with this opinion.

The judgment is reversed with directions to enter judgment in conformity with the opinion.


author: WADDILL, Commissioner.

text:
    Chester JACKSON and Cassie Jackson, Appellants, v. Dillard METCALF, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.

      G. E. Reams, Harlan, for appellants.
    James S. Greene, Jr., Greene & Forester, Harlan, for appellee.
   WADDILL, Commissioner.

This action was instituted by appellants, Chester Jackson and his wife, to recover the value of standing timber sold by ap-pellee, Dillard Metcalf, from land appellants claim they own. Appellee denied appellants owned this land. The trial judge determined that a part of the disputed property, referred to by the parties as a portion of the “Shell Patent,” was owned by appellee and certified this judgment to be final and without just reason for delay under CR 54.02. The remainder of appellants’ action was continued so the parties could introduce further evidence.

At this time we consider only appellee’s motion to dismiss this appeal. He contends that, since appellants’ action presented only a single claim for damages for the taking of timber, CR 54.02 is inapplicable and the certification of finality thereunder is a nullity. If appellee’s contention is correct the appealed order is interlocutory and we have no jurisdiction of an attempted appeal from it. KRS 21.060. Appellant contends that, since the trial judge treated the case as presenting two separate claims for timber removed from two tracts of land, this constitutes a “multiple claims” action as that term is used in CR 54.02.

Kentucky Civil Rule 54.02 is taken nearly verbatim from Rule 54(b) of the Federal Rules of Civil Procedure and the consideration of what constitutes a multiple claims action under that rule affords a valuable insight to the history and purposes of the rule. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297; Capital Transit Co. v. District of Columbia, 96 U.S.App.D.C. 199, 225 F.2d 38; Rieser v. Baltimore & Ohio Railroad Co., 2 Cir., 224 F.2d 198. The general rule in the federal practice seems to be that a determination of multiplicity of claims must rest on whether the underlying factual basis for recovery states more than one claim which could have been separately enforced. See 3 Barron & Holtzoff, Federal Practice and Procedure, Section 1193 at page 28.

If multiple claims are involved in this action they must be derived from the nature of the claims of title to the land in dispute. Appellee’s title covers most but not all of the land claimed by appellants. Hence, it may be reasoned that to obtain the relief sought, appellants had to show superior title to two tracts of land, one which was included in the deed of appellee and one which was outside the boundaries of appel-lee’s deed.

The trial judge could have reasonably refused to certify the appealability of the order in question under CR 54.02. Nevertheless we believe that where it is reasonably debatable whether a single claim or multiple claims are involved, the trial judge’s exercise of discretion in certifying under CR 54.02 will be conclusive as to that issue. 6 Moore’s Federal Practice, Section 54.33.

In the exercise of that discretion the trial judge must balance this Court’s historic policy against piecemeal appeals. (See Kellar & Buchanan v. Tilly, Scott & Adams, 33 Ky. (3 Dana) 443) and the practical needs of the particular case before him. See Barron & Holtzoff, supra, at page 24. The entering of certification under CR 54.02 is no more automatic than is an extension of time to file a record on appeal under CR 73.08. See Abell v. Meguire, Ky., 402 S.W.2d 91 (decided April 22, 1966); Bailey v. Ashland Discount Association, Ky., 400 S.W.2d 508. The trial judge should always determine in entering a certification under CR 54.02 that the order being certified is sufficiently important and severable to entitle a party to an immediate appellate review. See Clay, CR 54.02, Author’s Comment 4.

In the instant ease we are unwilling to hold that the trial judge erred in making the partial judgment a final and appeal-able one. The motion to dismiss the appeal is overruled.


author: CULLEN, Commissioner.

text:
    Lilly PORTER, Appellant, v. Frank GOAD, Chairman, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    As Modified on Denial of Rehearing June 24, 1966.
    Francis Dale Burke, Pikeville, for appellant.

      Fred G. Francis, Prestonsburg, Robert Matthews, Atty. Gen., Frankfort, for ap-pellees.
   CULLEN, Commissioner.

Bascomb Porter, a long-time employee of Inland Steel Company in its coal mines, died of a coronary thrombosis. His widow, Lilly, sought workmen’s compensation death benefits on the theory that the death was attributable to cor pulmonale which had developed from silicosis contracted by Bas-comb during his employment. The Workmen’s Compensation Board was not convinced by the evidence that there was a causal relationship between the heart condition and the presence of silicosis, and the board therefore entered an order denying the claim. On appeal to the circuit court the order was affirmed, and the matter now is before us on appeal from the circuit court.

Dr. Morris performed an autopsy on the body of the deceased employe in the presence of Dr. Fernandez (who was the attending physician at the death) and Dr. Patterson. Dr. Morris testified that the cor pulmonale resulting from silicosis was a “contributing factor” or “contributing cause” of the death, but he admitted that arteriosclerosis was “the main contributing factor” and that a diseased condition of the liver also was a contributing factor.

Dr. Fernandez stated it to be his opinion that the “cause” of the death from thrombosis was arteriosclerosis. When pressed on cross-examination he conceded that cor pulmonale “could be” a contributing cause in such a situation, but said that it “in this case wouldn’t be the cause of death * *.” In substance, as concerns cor pulmonale’s being a cause, he said only that no one could say positively that it was not contributory. He found no indication that Porter’s heart had failed because of cor pulmonale.

Dr. Patterson testified unequivocally that there was no relationship at all between Porter’s cor pulmonale condition and his •death.

Obviously the evidence that the cor pulmonale was a substantial cause of Porter’s death was not so strong, clear-cut, convincing or persuasive that the Board must be considered to have acted erroneously or unreasonably in refusing to be persuaded by it. See Lee v. International Harvester Company, Ky., 373 S.W.2d 418; Columbus Mining Company v. Childers, Ky., 265 S.W.2d 443.

Even had Dr. Morris attributed a primary causative effect to the cor pulmo-nale (which he did not), the Board would not have been required to so find in the face of Dr. Patterson’s flat denial that the cor pulmonale played any causative part at all. The mere fact that Dr. Patterson was not a heart specialist did not deprive his testimony of probative value. And although the appellant undertakes to picture the testimony of Dr. Fernandez as supporting her claim that cor pulmonale was a cause of death, the fact is that he merely admitted that it possibly could be a cause in some eases, while asserting his belief that it was not a cause in this case.

The appellant points to the fact that by a 1964 amendment to KRS 342.285 the legislature has provided for the use of the “clearly erroneous” test by the courts in reviewing findings of the Workmen’s Compensation Board. He argues that this abolished the old “substantial evidence” test applied by the courts for so many years and he maintains that under the new test the finding of the board in the instant case should be set aside as clearly erroneous. The appellant overlooks the fact that the instant case is one in which the board found against the person having the burden of proof. In such cases the proper test never was whether the finding was “supported” by evidence, substantial or otherwise. The test was whether the evidence for the claimant was so strong as reasonably to require a finding in his favor. Lee v. International Harvester Company, Ky., 373 S.W.2d 418. The reviewing court would not set aside the finding of the hoard unless the evidence in support of the claim was so clear-cut and convincing that the court justifiably could conclude that the hoard acted “erroneously” (i. e., unreasonably) in finding against the claim. Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443. The 1964 amendment effected no change in the test applicable in cases where the board has found against the claimant. The evidence in the instant case was not so strong as to require a finding for the claimant, and that was and still is the test.

The judgment is affirmed.


author: PER CURIAM.

text:
    WARREN INDEPENDENT SCHOOL DISTRICT et al., Petitioners, v. SOUTHERN NECHES CORPORATION et al., Respondents.
    No. A-11209.
    Supreme Court of Texas.
    June 22, 1966.
    Rehearing Denied July 20, 1966.
    E. G. Aycock, Fort Worth, for petitioners.
    Fountain, Cox & Gaines, Houston, Whit-worth & Trimble, Jasper, Garrison, Ren-frew, Zeleskey, Cornelius & Rogers, Luf-kin, Wheat & Wheat, Woodville, for respondents.
   PER CURIAM.

The trial court rendered judgment setting aside the tax assessments upon certain timber and timberlands owned by Southern Neches Corporation and a number of other complaining taxpayers. The Court of Civil Appeals, 405 S.W.2d 100, affirmed that judgment. It is our opinion that the courts below reached the correct result, but we disapprove the holding of the Court of Civil Appeals that the complaining taxpayers were denied due process of law by the Board of Equalization.

The Board set hearings for the determination of mineral land values at one time, and hearings for the determination of timber and timberland values at a later time. The timber owners appeared and asked leave to cross-examine the witnesses who appeared at the earlier hearings, but the Board of Equalization denied the request. The Board accorded the timber owners full opportunity to present their evidence at the hearing set for consideration of the timberland values, including evidence of the values of the minerals which the timber owners contended were not bearing their proportionate share of the tax burden. Hearings before boards of equalization are informal and quasi-judicial in nature. State v. Houser, 138 Tex. 28,156 S.W.2d 968, 970 (1941); Simkins v. City of Corsicana, 86 S.W.2d 792 (Tex.Civ.App. 1935, no writ). The Board’s action in limiting the timber owners to the presentation of their proof at the time and place set for the consideration of the values of their properties was not a denial of due process.

The application for writ of error is refused, no reversible error. Rule 483, T.R.C.P.