author: NORTHCUTT, Justice.

text:
    Thomas W. PORTER et al., Appellants, v. Frank P. WILSON, Sr., et ux., Appellees.
    No. 7281.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 16, 1963.
    Rehearing Denied Oct. 21,1963.
    Clayton, Martin & Harris, Amarillo, for appellants.
    Stone & Stone, Amarillo, John C. Chambers, Amarillo, of counsel, for appellees.
   NORTHCUTT, Justice.

This is an action in trespass to try title brought by Frank P. Wilson, Sr. and wife, Iris Kirk Wilson, as plaintiffs against Thomas W. Porter and a large number of other persons as defendants for title and possession of 11.37 acres of land out of the west part of Section 11, Block 6, I. & G. N. R. R. Company in Randall County, Texas. The land was described by metes and bounds in the plaintiffs’ petition. There is no question here involved as to all the said tract of land, save and except Lots Nos. 21 and 24 in Block 36 of the Palisades, and a small tract lying between Lots Nos. 23 and 24. Lots Nos. 21 and 24 and the small tract lying between Lots Nos. 23 and 24 are included within the bounds of the 11.37 acres above mentioned. On September 1, 1949, the 11.37 acres, except Lots Nos. 21 and 24, were deeded by warranty deed to J. H. Bright and wife, Bertie B. Bright. The deed excepted said Lots Nos. 21 and 24. Bright took immediate possession and moved onto said property. On May 28, 1956, Bright and wife, by warranty deed, deeded the 11.37 acres, excepting Lots Nos. 21 and 24, to Wilson and wife. The Wilsons immediately moved onto said property and have lived there and have held possession of the entire 11.37 acres of land ever since. On the same day the Brights deeded the property to the Wilsons and excepted Lots Nos. 21 and 24 from the warranty deed they gave a quit claim deed to the Wilsons to Lots Nos. 21 and 24. The first part of the deed the grantors sold, released and forever quit claimed to appellees all their rights, title and interest in and to the property, describing the property. The habendum clause provided to have and to hold said premises together with all rights, privileges and appurtenances thereto forever. Wilson filed for record both deeds May 29, 1956, at 10:00 a. m., which deeds were duly registered. Plaintiffs filed their original petition on April 17, 1962, and the defendant, Thomas W. Porter, answered by a plea of not guilty and by cross action for recovery of Lots Nos. 21 and 24 and the small tract lying between Lots Nos. 23 and 24. The other defendants will not be referred to hereafter as they are in no way interested in this appeal. For convenience, Wilsons will be referred to as appellees and Porter as appellant.

Appellees claim title as to Lots Nos. 21 and 24 under the five and ten year statutes of limitation. Since we are of the opinion that appellees are entitled to recover title under their claim of five years statute of limitation, we will only consider that portion of this appeal.

This case was submitted to a jury upon two special issues. Issue One was as to the five years limitation and Issue Two as to the ten years limitation. Both issues were answered in favor of appellees. Special Issue One was as follows:

“Do you find from a preponderance of the evidence, if any, that the plaintiffs and those through whom they hold conveyances, held peaceable and adverse possession of the land in controversy, continuously cultivating, using or enjoying the same, and paying taxes thereon, and claiming under a deed or deeds duly registered, for any consecutive period of five years prior to April 17, 1962? Answer YES or NO.”

The jury answered “Yes.” No objections were filed as to the question asked. The quit claim deed properly described the two lots here in question and was properly registered. The appellees had paid all taxes as found by the jury. That part of Article 5509, Texas Civil Statutes, which determines what is necessary to establish the title here involved reads as follows:

“Every suit to recover real estate as against a person having peaceable and adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after cause of action shall have accrued, and not afterward.”

The purpose of requiring the registration of deeds under the plea of five years limitation is to give notice to owners of land that the person in possession thereof is claiming adversely to them. We think the charge of the court and issues submitted asked the jury if the appellees had complied with the requirements of Article 5509. We are of the further opinion that there was sufficient evidence to sustain the finding of the jury. The Supreme Court in the case of Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360, approved a quit claim like the one here involved as being' sufficient to support adverse possession and set in motion the five years statute of limitations. That case there held as follows :

“The deed is sufficient to support adverse possession and to set in motion the five-year statute of limitation. Parker v. Newberry, 83 Tex. 428, 18 S.W. 815; McDonough v. Jefferson County, 79 Tex. 535, 15 S.W. 490; Safford v. Stubbs, 117 Ill. 389, 7 N.E. 653. The statute, in so far as a deed is concerned, demands only that the person having peaceable and adverse possession of real estate be ‘claiming under a deed or deeds duly registered.’ Rev.St. art. 5674. Of course such deed must describe the land. We think the instrument set out above falls within the class designated as deeds.”

In the case of Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131, the Supreme Court held as follows:

“To support limitation under the five years statute, it is not necessary that the deed, under which the claim is made, convey any title. The grantor may be wholly barren of any vestige of title; the deed may therefore pass no semblance of title; yet, if it describes and purports to convey the land and tested by itself is upon its face a good deed, it meets the requirement. Wofford v. McKinna, 23 Tex. 36, 76 Am.Dec. 53; Schleicher v. Gatlin, 85 Tex. 270, 20 S.W. 120; Harris v. Wells, 85 Tex. 312, 20 S.W. 68.
“Accordingly, if Ellen Cook had a deed to this land, good upon its face and which retained its validity as such, if she claimed under it, with it duly registered, and met the other requirements of the statute, as she did, for a continuous five year period, she acquired title to the land by limitation, though she never acquired and at no time had any title whatever in virtue of the deed.
“It is thus clear that a deed under the law governing five years limitation has a character distinct from that of an effectual muniment of title. For the purpose of such limitation it performs an office unrelated to title, and although as a conveyance of title it may be futile. That office is simply to aid the posssession as a means of notice of the adverse claim to the land.
“The law of limitation of actions for land is founded upon notice. The title by limitation ripens, primarily, only because, in such manner and for such period of time as the different statutes require, notice is given of the hostile claim. Under the three years statute, it is afforded by possession under title or color of title. Under the ten years statute, simply by possession. And under the five years statute, it is given by possession, the payment of taxes, and the registration of a naked deed. It is not the character of the deed as a conveyance of title which, under the five years statute, helps to put limitation in motion. It assists the operation of limitation under that statute merely because of the notice given of the adverse claim by its registration as an instrument which purports to convey, not the title, but the land.”

The appellees have had adverse possession, used and enjoyed the property ■in question, paid all taxes before they became delinquent, and claimed title under the deed, duly giving notice to appellants of their claim all as required under Article 5509 and as found by the jury. Having complied with the terms of Article 5509, appellees have perfected title to said Lots Nos. 21 and 24 by virtue of the five year statute of limitation, and as to the small tract between Lots Nos. 23 and 24 simply by possession for ten years and regular chain of title.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    W. Herbert JONES, d/b/a Galveston Lumber Company, Appellant, v. D. W. STEELE, Appellee.
    No. 14183.
    Court of Civil Appeals of Texas. Houston.
    Oct. 10, 1963.
    Fuhrhop & Jones; Jerome Jones, Galveston, for appellant.
    No appearance for appellee.
   COLEMAN, Justice.

This is an appeal by the defendant from a judgment granting a bill of review. Appellant’s principal contention is that appel-lee was, as a matter of law, negligent in failing to answer prior to the time default judgment was taken in the original case.

The trial court filed the following findings of fact and conclusions of law:

“9. On March 28, 1961, W. Herbert Jones, doing business as Galveston Lumber Company, sued D. W. Steele in this Tenth District Court for Three Hundred Fifty-six Dollars and Twenty-seven Cents ($356.27), on the account attached to Plaintiff’s Original Petition, and referred to in Paragraph 8 herein-above, in Cause No. 96,204, plus attorney’s fees in the amount of Two Hundred Fifty Dollars ($250.00).
“12. On April 22, 1961, D. W. Steele stopped in at the Galveston Lumber Company (S.F. p. 14) in Galveston and asked for the manager or the man in charge (S.F. p, 10). D. W. Steele told that man that he had never been to the Galveston Lumber Company before and that he thought that the Company had made a mistake; the man, who represented himself to be in charge, told D. W. Steele that ‘he would get their Company’s attorneys to look into the problem and get the matter straightened out.’ (S.F. p. 11). D. W. Steele left the Galveston Lumber Company with the opinion that the matter would be taken care of and that the law suit would be changed so that the proper party would be sued (S.F. p. 13).
“13. From the Galveston Lumber Company, on April 22, 1961, D. W. Steele went to Sea Isle and spoke with O. W. Steele (S.F. p. 13) and gave the legal papers (citation) to his father (S.F. p. 14).
“14. On or about April 25, 1962, Otto W. Steele took the legal papers (citation) to the office of W. Herbert Jones at La Marque, Texas, and explained to said Mr. Jones that he (Otto W. Steele) owed the bill and that it had nothing to do with anybody but himself. Said Mr. Jones told Otto W. Steele that he would contact his Galveston manager, Mr. Mcjunhim, and rectify the matter. Within the next few days Otto W. Steele reported this discussion with W. Herbert Jones to David W. Steele (S.F. p. 35 and p: 48). Said W. Herbert Jones, incidentally, owns the Galveston Lumber Company in Galveston and the La Marque Lumber Company in La Marque (S.F. pp. 46 and 47).
“15. On May 9, 1961, Jerome Jones, Attorney for the Plaintiff in said Cause No. 96,204, wrote a letter to D. W. Steele, 3510 Glenmore, Houston, Texas, (S.F. p. 23), which read as follows:
“ ‘May 9, 1961
Mr. D. W. Steele 3510 Glenmore Houston, Texas
Re: Cause #96,204
Dear Sir:
As you know the above suit has been filed and process has been served upon you. Unless the matter is taken care of within the next few days, we will take judgment and file it in Galveston and Harris Counties, which will no doubt effect your credit record in both counties.
Please let us hear from you.
Very truly yours,
FUHRHOP and JONES /s/ Jerome Jones
JJ = iw’
D. W. Steele received this letter and gave it to his mother to give to his father (S.F. p. 22).
“16. On June 15, 1961, W. Herbert Jones, doing business as Galveston Lumber Company took Judgment by default against D. W. Steele, in said Cause No. 96,204 in this Tenth Judicial District Court for Six Hundred Six Dollars and Twenty-seven Cents ($606.27) (Three Hundred Fifty-Six Dollars and Twenty-seven Cents ($356.27) damages and Two Hundred Fifty Dollars ($250.00) attorney’s fees), with interest and costs of Court.”
“1. The Plaintiff herein, D. W. Steele, has a meritorious defense to the lawsuit in Cause Number 96,204, Tenth Judicial District Court, Galveston County, Texas, in which a default judgment was taken against him on June 15, 1961, in that the obligation made a basis of that suit is owed by Otto W. Steele, and not D. W. Steele, and there is no evidence of any kind that D. W. Steele can be held liable for the said debt.
“4. The Plaintiff, D. W. Steele, was not negligent in failing to hire counsel and file written answer in Cause Number 96,204 in the 10th Judicial Court of Galveston County, Texas, since he was led to believe that the error of naming him Defendant in said suit would be corrected by the representatives of the person in charge at the Galveston Lumber Company and by the conversation between W. Herbert Jones, the owner of the Galveston Lumber Company, and his father, Otto W. Steele. The representations made by the Defendant herein and his agent, and the reliance upon them by the Plaintiff herein, amounted to extrinsic fraud upon the Plaintiff herein by the Defendant, denying the Plaintiff the opportunity fully to litigate, upon the trial, all the rights or defenses he was entitled to assert.”

None of the findings of fact of the trial court have been challenged by appellant. In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, the Supreme Court of Texas said:

“Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al v. Ramos et al, Tex.Civ.App., 208 S.W.2d 111, er. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments ‘are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted’ ; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Harding v. W. L. Pearson & Co. et al, Tex.Com.App., 48 S.W.2d 964.”

Here the findings of the trial court preclude a contention that appellee failed to prove (1) a meritorious defense, (2) which he was prevented from making by the fraud, * * * or wrongful act of the opposite party. However, there is no evidence which would support the finding that appellee was not guilty of negligence in failing to answer and present his defense to the cause of action alleged.

While ordinarily negligence is a question of fact, it becomes a question of law when the facts are such that all reasonable minds must draw the same conclusion. Galveston Electric Co. v. Hansen, Tex.Com.App., 15 S.W.2d 1022; Baker v. Loftin, Tex.Com.App., 222 S.W. 195; Houston Belt & Terminal Co. v. Chance, Tex.Civ.App., 332 S.W.2d 430; Gregory v. City of Garland, Tex.Civ.App., 333 S.W.2d 869, error ref., n. r. e.

Even though it is taken as established by the trial court’s findings that prior to May 9, 1961, D. W. Steele had received assurances that the law suit would be amended in such manner as to drop him as a defendant, we think reasonable minds cannot differ as to the fact that he was negligent in failing to file an answer, after he received the letter of May 9, 1961, in which he was told that “unless the matter is taken care of in the next few days, we will take judgment * * * ”

It is undisputed in the record that after receipt of this letter appellee did nothing except to send the letter to his father, until after a default judgment was entered June IS, 1961. Appellee did not learn of the default judgment until about December 1, 1961. Since these matters are established by the findings of fact made by the trial court, as a matter of law the trial court should have entered his judgment denying the bill of review.

The judgment of the trial court is reversed and judgment is here rendered that the bill of review filed by appellee, D. W. Steele, be denied.


author: WADDILL, Commissioner.

text:
    Ray CUNNIGAN, Petitioner, v. Rufus E. JONES, Judge of Burnside Police Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.
    Fritz Krueger, Somerset, for petitioner.
    M. D. Harris, Somerset, for respondent.
   WADDILL, Commissioner.

By an original action in this Court, petitioner seeks to prohibit respondent from enforcing an ordinance of the City of Burnside and a judgment assessing a fine of $15.00 against him for a violation of this ordinance. Petitioner claims that the ordinance is invalid and that he has no adequate remedy to test the validity of the ordinance and his conviction.

While Meeks Motor Freight, Inc. v. Ballard, 283 Ky. 404, 141 S.W.2d 569, is cited as approving the procedure petitioner has followed, that case was decided before enactment of KRS 23.032. Pursuant to this, statute petitioner is afforded a right of appeal to the circuit court. Furthermore, as pointed out in Hettich v. Colson, Ky., 366 S.W.2d 907, the circuit court has authority to prohibit the police court from enforcing its orders under CR 81. Since petitioner has an adequate remedy in the circuit court, we will not grant him the relief sought in this Court.

Prohibition is denied.


author: PALMORE, Judge.

text:
    Claude COFFEY et al., Petitioners v. S. E. ANDERSON, Judge of Wayne County-Court, Respondent.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.

      Charles C. Adams, Adams & Adams, Somerset, for petitioners.
    J. C. Denney, Jr., County Atty., Randall Bertram, Monticello, for respondent.
   PALMORE, Judge.

Twenty-nine signers claiming to aggregate a majority of the “duly registered” voters living in a portion of Wayne County lying north of Lake Cumberland filed a petition in the Wayne County Court asking for an election on the proposition of striking the area from Wayne County and attaching it to the adjoining county of Pulaski. Const. § 65; KRS 67.030. The petition was dismissed on the ground it was not signed by the requisite number of voters. This is an original action for mandamus against the Judge of the Wayne County Court to enforce compliance with the demand of the petition. Cf. CR 81; RCA 1.420.

KRS 67.030 does not prescribe any method or procedure for determining whether the signers of a petition filed thereunder do in fact constitute a majority of the voters living in the territory sought to be transferred. In such a case the county judge must proceed ex parte to determine the sufficiency of the petition on its face and, if he. deems it necessary, satisfy himself that the signatures and petitioners are what and who they purport to be and constitute the required percentage of voters. Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884, 889 (1936); Stieritz v. Kaufman, 314 Ky. 10, 234 S.W.2d 145 (1950). If he is in error in declining to direct the election, this court has jurisdiction under Const. § 110 to correct his action. Franklin v. Pursiful, 295 Ky. 222, 173 S.W.2d 131, 133 (1943); Bays v. Bradley Mills, Ky., 254 S.W.2d 348 (1943). However, in view of Hettich v. Colson, Ky., 366 S.W.2d 907 (1963), and Cunnigan v. Jones, Ky., 371 S.W.2d 624, decided today, the circuit court also has jurisdiction to provide adequate relief. Therefore, under similar circumstances this court henceforth will not exercise original jurisdiction.

The records of the Wayne County Court Clerk showed 62 registered voters in the area, but petitioners contend that several of these persons did not reside there and that the actual number of voters was 52. The order dismissing the petition recites that five of the 29 petitioners had requested in writing that their names be withdrawn, and concludes that the petition “did not contain a majority of the qualified voters in the * * * area sought to be stricken from Wayne County,” etc. To the extent this conclusion was based on the attempted withdrawal of some of the petitioners it was, of course, in error, because such a withdrawal is unauthorized and ineffective. Evans v. Maddox, Ky., 260 S.W.2d 661 (1953).

The word “voters” appears never to have been construed by this court with direct reference to Const. § 65 and KRS 67.030. In other connections it has been held ordinarily to mean persons having the qualifications set out in Const. § 145, whether registered or not. Meffert v. Brown, 132 Ky. 201, 116 S.W. 779 (1909); City of Covington v. Miller, 266 Ky. 198, 98 S.W.2d 293 (1936); Branstetter v. Heater, 269 Ky. 844,108 S.W. 2d 1040 (1937) ; Stieritz v. Kaufman, 314 Ky. 10, 234 S.W.2d 145 (1950). See, however, Hall v. Reid, Ky., 305 S.W.2d 923 (1957), in which a different result was reached under KRS 118.080.

Under the cases holding that one who has the right to register but has not done so is nevertheless a “voter,” it would be incumbent on the petitioners in a case such as this to seek out and establish the number of persons in the area who, in addition to those already registered, were not registered but had the right to register. Being of the opinion that in many instances this would be impracticable and an unreasonable burden, we have reconsidered the question of proper definition and have concluded that registration is one of the essential qualifications of a “voter.” To the extent that the Meffert, City of Covington, Branstetter and Stieritz opinions hold otherwise they are overruled.

We recognize that Const. § 145 says that a person possessing certain qualifications “shall be a voter.” This provision must, however, be read in pari materia with Const. § 147, which provides, “Where registration is required, only persons registered shall have the right to vote.” If a person does not have the “right to vote,” he is not a “voter.” By force of Const. § 147 registration is a qualification or condition precedent of equal dignity with the age, residence, and other qualifications prescribed in Const. § 145.

In City of Covington v. Miller, 266 Ky. 198, 98 S.W.2d 293, (1936), it was suggested that because the voter registration statutes theretofore in force had directed the registration of “qualified voters” the word “voters” necessarily included persons not yet registered. The present registration statute, KRS 117.615, does not require that conclusion, and in the absence of a compelling reason to the contrary (including, of course, a clear indication that the legislature so intends) it is our opinion that a person is a “voter” only if he is qualified under Const. § 145 and is registered. This opinion shall not, however, operate retroactively to invalidate any election heretofore called or held or to disqualify an officer or present candidate for election.

The proof shows that 28 of the 29 petitioners were voters and that of the other persons carried on the registration books, there had died or removed their residence a sufficient number to reduce the total below 56. Hence respondent erred in dismissing the petition. However, as it is too late to comply with the 60-day advertisement requirement of KRS 67.030(2) in time for the election to be held on November 5, 1963, it will be necessary that respondent order it to be held on the day of the 1964 general election.

Mandamus is granted, and respondent is directed to enter an order consistent with this opinion.


author: STEWART, Judge.

text:
    A. M. HOWELL et al., Petitioners, v. John M. WILSON, County Judge of Russell County, Respondent.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.

      Charles C. Adams, Adams & Adams, Somerset, for petitioners.
    W. E. Coffey, County Atty., Leonard Wilson, Jamestown, for respondent.
   STEWART, Judge.

This proceeding seeks to compel the county judge of Russell County to call an election to take the sense of the voters of that county to determine whether a portion of it shall be detached therefrom and joined to Pulaski County.

On July 8, 1963, a petition signed by 123 citizens and residents of the Jabez Precinct in Russell County was filed with respondent, John M. Wilson, county judge of that county. The petition requested that the county court enter an order calling for a countywide election on the proposition of striking the territory encompassed in the Jabez Precinct from Russell County and attaching it to adjoining Pulaski County. Such procedure is authorized by Section 65 of the Constitution of Kentucky and by KRS 67.030. Prior thereto, on June 13th, a petition signed by 106 citizens and residents of the same precinct who were opposed to the calling of such an election was filed with the county clerk. It was presented to respondent county judge on July 8th.

Respondent deferred action on the petitions pending an examination of them. On July 11th he entered an order refusing to call an election. The basis for the denial was that in Jabez Precinct there were listed 207 registered voters. The petitions were studied and it was found 33 persons signed both of them. Respondent deleted these duplicates, leaving only 87 names on the original petition. Since 87 represents 17 less than the majority of the 207 registered voters in the affected area and since Section 65 of the Constitution of Kentucky, as well as KRS 67.030, requires that a majority of the voters living in such territory must sign the petition, respondent refused to call the election.

Petitioners then filed an affidavit with respondent, alleging that a number of the registered voters in Jabez Precinct were not legally qualified and asking that he purge certain named voters and rule that there are only 166 legal voters actually living within the precinct. Respondent refused to comply with this request, talcing the position that purgation is not within his authority; that the county purgation board is solely empowered to determine who are properly registered; and that, if the purgation board did act so as to drastically reduce the number of voters on the registration list, he would reconsider his ruling on the original petition.

Petitioners then challenged specific voters as provided by KRS 117.810, but the purgation board, when called upon to consider these persons, refused to act.

Petitioners have instituted this proceeding before us for an order of mandamus, requesting this Court to direct respondent to call an election on the question presented by the original petition.

The cases that have discussed the words “voter,” or “legal voter,” or “qualified voter,” in respect to whether registration is a necessary requisite to constitute a person as such, have been varied in their holdings. The accompanying language of the particular statute in which the one or the other of these expressions appears has been held to be a decisive factor. Such a question usually arises where, as here, a statute requires that a petition calling for an election on a public question be signed by a designated number of “voters,” or “legal voters,” or “qualified voters.”

This Court has reviewed its cases on the point and has decided that, in addition to the prescribed constitutional and statutory requirements, registration is one of the essential elements of a voter, legal voter, qualified voter, or the like. See Coffey et al. v. Anderson, Judge, etc., Ky., 371 S.W.2d 624.

In reviewing the two petitions, one “pro” •election and one “anti” election, respondent •determined that a person who had signed both had actually done nothing (as in the ■case of a ballot in an election marked for each of the opposing candidates for the same office) and so deleted the names of those persons that appeared on both petitions.

In the Annotation in 126 A.L.R. 1031 and 1039 through 40, it is stated that signers of a petition may withdraw therefrom before the petition is “acted upon,” citing O’Neal v. Minary, 125 Ky. 571, 101 S.W. 951; Davis v. Henderson, 127 Ky. 13, 104 S.W. 1009; Barton v. Edwards, 143 Ky. 713, 137 S.W. 218. In 18 Am.Jur., Elections, sec. 103, p. 245, it is stated: “* * * that the signing of a petition is not an irrevocable act, but that anyone may withdraw his support of such petition before action thereon has been taken.”

Evans v. Maddox, Judge, Ky., 260 S.W.2d 661, was a case where a petition was filed for an election to be called to determine whether or not the commission form of government should be terminated in Mid-dlesboro. While a hearing was in progress on the petition a large number of signers sought to withdraw their names which, if allowed, would have rendered the petition insufficient. The county judge refused to permit the withdrawals. This Court, in upholding hie action in this regard, said:

“We are of the opinion that in a case of this character, involving a petition filed with a court seeking an election on a public question, the petitioners should not be permitted, merely because of a change of mind, to withdraw their names after the petition has been filed. Having invoked the processes of law and the machinery of the court in respect to a matter of public concern, the petitioners should not be allowed to treat the matter as one solely of their private concern, and dismiss the court as though the court was merely their agent. It is entirely foreign to our concept of the orderly processes of law that a court should be compelled to sit by as a mere spectator while the sponsors and opponents of a petition filed with the court engage in a contest behind the scenes to determine whether the petition will stay in court.”

In the present case, apparently three petitions were circulated. The first, which was “pro” election, is not in the record. The second, which was “anti” election, was dated May 21, 1963, filed with the county clerk on June 13th and presented to respondent on July 8, 1963. The third, which was also “pro” election, stated inter alia that “ * * * the signing of this petition on the said date is a ratification or confirmation of any petition heretofore signed requesting that the aforesaid described territory be stricken from Russell County and attached to Pulaski County, or revokes and disavows any petitions signed heretofore in opposition to the proposal. * * * ” This last petition was signed between July 5th and July 8th, as shown by the dates following the signatures, and presented to respondent on July 8th.

Following the precepts outlined above, it appears respondent acted erroneously in striking any of the duplicates. He should have taken the last petition (the “pro” petition), when filed, to be the sense of the signers. The “anti” petition was a nullity. As all these signers apparently are voters as defined hereinbefore and their total amounts to more than a majority in the territory, we conclude respondent erred in dismissing the “pro” petition.

Respondent, however, had the duty to examine the petitions before calling or refusing to call the election. As stated in 18 Am.Jur., Elections, sec. 102, p. 244: “There is no presumption that the signers of a petition are qualified electors, and in the absence of any provision of law to the contrary, the duty of determining whether a petition presented is in accordance with the requirements of law falls upon the officers to whom it is presented and who are to call the election.” In Commonwealth ex rel. Meredith v. Fife, 288 Ky. 292, 156 S.W.2d 126, in a case dealing with the calling of an election relative to the building of a county health department, this Court said: “We assume, of course, that a bona fide petition was filed in this instance. If not, the county judge would not be required to call an election.”

In a case such as this the county judge may proceed ex parte to determine the sufficiency of the petition, and, if he deems it necessary, may satisfy himself that the signatures are genuine, that the signers are bona fide voters, and that the total names affixed to the petition constitute the required percentage of qualified voters. See Stieritz v. Kaufman, 314 Ky. 10, 234 S.W.2d 145.

However, in view of Hettich v. Colson, Ky., 366 S.W.2d 907, and Cunnigan v. Jones, Ky., 371 S.W.2d 624, the circuit court also has jurisdiction to provide adequate relief in respect to the matter before us, therefore, under similar circumstances this Court henceforth will not exercise original jurisdiction.

Upon reconsideration of the petition, if respondent determines that a majority of the bona fide voters of Jabez Precinct favor the calling of such an election, he will set a date therefor. Nevertheless, as it is too late to comply with the 60-day-advertise-ment requirement of KRS 67.030(2) for the election to be held on November 5, 1963, it will be necessary that respondent order it to be held on the day of the 1964-general election.

Wherefore, an order of mandamus is granted.


author: MOREMEN, Judge.

text:
    Clayton I. NEAGLE, Appellant, v. STATE HIGHWAY DEPARTMENT, Commonwealth of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.
    Robert C. Carter, Glasgow, for appellant.
    Bell, Orr & Reynolds, Bowling Green,, for appellees.
   MOREMEN, Judge.

Appellant, Neagle, injured his back in( May 1958 while working for the Department of Highways. He was covered by the Workmen’s Compensation Act. About a year later he filed with the board an application for adjustment of his claim and stated that he was permanently totally disabled by reason of the accident. Appellee, State Department of Highways, conceded that he was totally disabled from pursuing his occupation as a laborer from May 1958 until October 1958, and admitted that there is some partial permanent disability. The parties, however, disagreed as to the percentage of disability. Appellee fixed this figure at fifteen per cent while appellant •claimed that his disability should be eighty per cent. This issue was the one to which the testimony taken before the board was ■directed.

At the time he filed his report the referee was of opinion that appellant’s disability would range from sixty-five per cent for a period of fifty-two weeks which •should later be reduced to forty-five per •cent for a similar period. Upon full board ■review it was determined that appellant suffered a permanent partial disability of fifteen per cent and upon appeal the award was affirmed by the Barren Circuit Court.

We are confronted with the question of whether the board had sufficient evidence ■of probative value upon which to base its award.

Appellant testified that at the time of his •injury he was burning brush and when he was moving down an embankment to obtain some brush from a pile, he lost his balance .and twisted his back. He continued to work that day and went back the next day; ■evidently he then missed a few days, but tried again. On the 22nd day of May he •ceased work and has been unable to work since that time. On the same day he visited Dr. Lewis Dickinson who prescribed rest for him and use of a fracture board in his bed. When he did not respond entirely to this treatment, Dr. Dickinson sent him .to Dr. Thomas Marshall of Louisville, a neurosurgeon, who in turn called in for consultation the firm of Drs. Costigan, Riley and Coy, orthopedists. Appellant was taken to St. Joseph’s Infirmary where he stayed until about August 24th. He returned on September 28 and stayed until October 4, during which period Dr. Marshall did a myelogram. He found no neurological changes and the myelogram was entirely negative. Later, on December 20, 1958, appellant went to Dr. Durston, a chiropractor in Bowling Green, who thereafter treated him. On September 16, 1959, at the request of appellee, Neagle was examined by Dr. Carson, an orthopedic surgeon.

As indicated above, the referee based his opinion and award in a great measure upon the testimony of Dr. Durston, a chiropractor, who had treated Neagle over a hundred times before the claim came on to be heard. However, upon full board review, the board elected to base its award upon the amount of disability fixed by the other doctors, whose evaluations of disability ' ranged from zero in Dr. Carson’s opinion to fifteen per cent as assessed by Dr. Marshall.

The board said:

“On September 16, 1959, Dr. Wm. O. Carson examined the plaintiff and found no evidence of any hernia of the vertebral discs or pressure on any nerve roots.
“Dr. Durston, a chiropractor, examined the plaintiff December 20, 1958. Dr. Durston fixed the plaintiff’s disability at 80 per cent to the body as a whole.
“With no disrespect or criticism, we cannot give the same weight to Dr. Durston’s testimony as that of Drs. Dickinson, Marshall and Carson.
“Dr. Dickinson’s testimony as to compensation neurosis was not developed; consequently we cannot (sic) give such a diagnosis but little consideration.”

Appellant argues that because of the above finding the board rejected competent evidence on a comparative basis with medical doctors’ evidence, and that the circuit court on appeal erroneously failed to require the board to consider such evidence. We have many appeals where the testimony of doctors produced by the employers and employees is diametrically opposed concerning the extent of the injury, but on appeal the only concern of the court is limited to whether there was competent evidence of probative value to support the factual findings of the board. In Mengel Co. v. Lehman, Ky., 259 S.W.2d 19, it was said:

“It will thus be seen that the testimony, medical and lay, introduced by the claimant is in direct conflict with that produced by the company. Ours is not the task to evaluate the evidence. We have many times written that the sole function of a court, so far as questions of fact are concerned in a compensation case, is to-ascertain whether or not the record contains any competent evidence of probative value to support such factual findings of the Board, and that neither the circuit court, nor this one, is authorized to determine the weight to be given to the evidence.”

The next question is whether or not the board was correct in declining to allow the chiropractor’s fee to be treated as a medical expense. This involves a determination of whether chiropractic services are within the term, “medical, surgical and hospital treatment,” as used in the Workmen’s Compensation Act. KRS 342.020 (1) provides that the employer shall furnish such “medical, surgical and hospital treatment” as reasonably may be required.

The courts of some jurisdictions have held that the chiropractor should be compensated. The statutes of these jurisdictions, however, include chiropractic manipulation within the “practice of medicine.” See Green v. Rawlings, 290 Mich. 397, 287 N.W. 557; and Shober v. Industrial Commission, 92 Utah 399, 68 P.2d 756.

In jurisdictions where chiropractic is not considered medical practice, it has been-held that there can be no compensation. See Corsten v. State Industrial Commission, 207 Wis. 147, 240 N.W. 834.

In subsection (2) of KRS 312.015, chiropractic is defined as the science of locating and adjusting the subluxations of the articulations of the human spine and its adjacent tissues, but nowhere in Chapter 312 of the Kentucky Revised Statutes is the-word, “medicine” or the words, “medical treatment,” used. The term, “practice of medicine” in Kentucky does not include the practice of chiropractic. In fact, the definition of that phrase in subsection (8) of KRS 311.550 reads “the ‘practice of medicine’ does not include * * * the practice of chiropractic as defined in subsection (2) of KRS 312.015.”

Under the strict definitions in the foregoing sections we are forced to hold that the term “medical treatment” as used in KRS 342.020 does not include chiropractic manipulation.

Judgment affirmed.


text:
    Grover JORDAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee (two cases).
    Court of Appeals of Kentucky.
    Oct. 11, 1963.

      Daniel H. McKinney and Robert C. Porter, Jr., Cincinnati, Ohio, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., William J. Wise, Commonwealth’s Atty., Newport, for ap-pellee.
   PALMORE, Judge.

While driving an automobile on a two-lane highway late at night appellant suddenly swerved left into the wrong traffic lane and struck four of five motorcycles moving in the opposite direction. Two of the cyclists were killed and several others severely injured. Appellant had not been drinking and, according to his testimony, was not drowsy. He had no explanation except for a theory that a hole found in the left front tire of his car indicated the possibility that he had struck a sharp rock or similar object, causing immediate deflation of the tire and a leftward lurch of the car. This theory was advanced by qualified experts and was countered by the opinion evidence of other experts that the hole in the tire resulted from one or more of the collision impacts.

Separate indictments for involuntary manslaughter under KRS 435.022(2) were returned in connection with the two fatalities. The cases were tried together by agreement, and in each case appellant was found guilty of the lesser offense of negligent homicide, KRS 435.025, and sentenced to the maximum penalty of one year in jail. In entering judgments the trial court failed to state, as required by RCr 11.04, whether the sentences were to be imposed concurrently or consecutively.

This court is of the opinion that admission of photographs showing the mangled body of one of the victims as it lay on the highway was a serious and prejudicial error. It was also entirely unnecessary and improper to permit testimony showing the extent of injuries to certain of the witnesses. There really was no question as to the force of the collisions, which had been amply and conclusively demonstrated by the other exhibits and testimony. However, we cannot have one set of laws for Kentucky attorneys and another for lawyers from other states who undertake the risk of trying cases here without familiarizing themselves with our laws and practice. Even if we assume the adequacy of the objections, the motion for new trial did not suffice to preserve the errors. “Other errors apparent on the face of the record” did not state a ground for new trial under Crim. Code of Practice, §§ 271, 274. Grayson v. Com., Ky., 354 S.W.2d 761 (1962).

With respect to the conversation among the witnesses in violation of the court’s admonition, counsel made no objection whatever. Hence there is no possible error to review.

In the absence of a conclusively exculpatory explanation, the sudden movement of appellant’s automobile to the wrong side of the road was enough evidence to support a verdict based on ordinary negligence under KRS 435.025.

That the Commonwealth’s Attorney subsequently associated with other counsel in bringing civil suits against appellant in behalf of the victims of the accident is a circumstance we cannot consider on the merits of these appeals. The duties of a Commonwealth’s Attorney do, however, include considerations that are not incident to and may even be inconsistent with an attorney-client relationship in civil litigation arising out of the same occurrence. Without intending any censure, but because this case provides an appropriate opportunity to' clarify the question, we express the opinion that the Commonwealth’s Attorney’s subsequent acceptance of employment to prosecute civil actions against this appellant was improper, if for no other reason than the reflection it cast upon the whole course of the criminal proceedings, including the denial of probation. The administration of justice must be above suspicion. The power and influence of a prosecuting attorney in a criminal proceeding are such that his civil employment in the same connection, either at the same time or thereafter, is inconsistent with the public interest in the good name of its courts.

The appellant was 19 years of age, married and steadily employed. His father having been killed in a mine accident at or about the time of the boy’s birth, he was raised by his mother. At the time of the accident he was not out skylarking or misbehaving in any way, but was on the way home to Cincinnati from a visit to his mother in Barbourville, Kentucky. The report of the probation and parole officer disclosed that he had an unblemished record •and that there was no reason why he should not have been placed on probation except that the injured parties and families of the deceased victims strongly objected, “and unfortunately the boy was.driving the car without insurance.” Motions for probation were overruled.

Probation is not tantamount to a pardon. It represents an effort to preserve the beneficial aspects of punishment without the destructive result of casting the offender out on society as a derelict. The probationer is not a free man. He is still substantially a ward of the state, and his liberty may be severely curtailed as provided in KRS 439.290. The state, not the injured individual, is the real party in interest and chief beneficiary of this process.

While we do not wish to interfere with the trial court’s discretion in this respect, cf. Hurt v. Commonwealth, Ky., 333 S.W.2d 951, 953, in view of the unusual circumstances of the case, and the distinct possibility that the jury’s verdict might have been less severe in the absence of the prejudicial evidence heretofore mentioned, we suggest that the trial court, under authority of KRS 439.260(3), reconsider the motions to suspend execution of the appellant’s sentences and place him on probation.

The judgments are affirmed.

MONTGOMERY, J., dissents from the portion of this opinion cuggesting that the trial court reconsider the motions for probation.


text:
    Emory HAZEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.

      J. Reid Caudill, Bowling Green, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

Appellant was convicted of the offense of grand larceny and sentenced to serve two years in the penitentiary. As grounds for reversal of the conviction it is urged that the court erred in refusing to grant a directed verdict of acquittal because: The evidence was insufficient to support the verdict and judgment, and it was conclusively established that appellant was so drunk he could not have had a “felonious intent” at the time he allegedly perpetrated the offense.

Charles Brooks testified that during the afternoon of April S, 1962, while he was working in a field located about 400 yards from his home, he saw a Plymouth automobile stop near his house, four men get out and go toward the rear of the house and later return to the car carrying “something in their hands.” Brooks stated that after they had driven away in the direction of Park City he discovered that his house had been entered and his two rifles and a shotgun had been stolen.

Allen Peavy, a state trooper, testified that on April 5, 1962, he stopped a Plymouth automobile near Park City which was occupied by appellant and four other men. He-stated that these men were drunk, that he placed them under arrest, searched their car and found a shotgun and two rifles which, were subsequently identified as the guns-which had been stolen from Brooks earlier that afternoon.

Appellant did not testify nor did he introduce any evidence in his own behalf.

Although the Commonwealth did not produce a witness who could identify appellant as one of the men who had entered the-Brooks home, it was shown that the property stolen from Brooks was found in am automobile in which appellant was riding' when it was searched by officer Peavy. This character of evidence has often been-held sufficient to sustain a conviction of' grand larceny. Chaney v. Commonwealth, Ky., 307 S.W.2d 770; Kenney v. Commonwealth, 199 Ky. 79, 250 S.W. 494, and Davis v. Commonwealth, 191 Ky. 242, 229 S.W. 1029. See also, French v. Commonwealth, 198 Ky. 512, 249 S.W. 761, on the-sufficiency of the evidence of joint possession.

Officer Peavy testified that appellant was-drunk at the time of his arrest and he was-permitted to express an opinion to the effect that appellant had been intoxicated' for several hours prior to his arrest. It was also shown by this witness that it is-a ten mile drive from Park City to the Brooks residence. Relying on this evidence, appellant contends that he was shown to have been so drunk at the time of the alleged commission of the offense that he was unable to have had a felonious intent which the law requires in order to-constitute larceny.

To constitute the crime of larceny the intent with which the property was-taken must be felonious. To take property in the absence of an intention to steal (that is, an intention to wrongfully take the property from the possession of the owner with the intent to convert same to the use of the-taker permanently and to deprive the owner of the benefit of it) is not larceny. Mearns v. Commonwealth, 164 Ky. 213, 175 S.W. 355.

Assuming that the evidence was sufficient to raise the defense of drunkenness. the appellant was not entitled to a directed verdict of acquittal but he was entitled to an instruction covering this defense. Mearns v. Commonwealth, 164 Ky. 213, 175 S.W. 355; Roberson’s New Kentucky Criminal Law and Procedure, Section 872, page 1094, also Section 842, page 1061; Bishop’s New Criminal Law, Volume II, Section 841, page 489. The record reflects that such an instruction was given and consequently there was no error in this respect.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Bertha Thomas ADAMS, Appellant, v. Benoni S. ADAMS, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.
    J. T. Orendorf, Bowling Green, McFarland & Colley, Columbia, Tenn., for appellant and cross-appellee.
    S.Y. Trimble, IV, Trimble, Soyars & Breathitt, Hopkinsville, for appellees and cross-appellants.
   MONTGOMERY, Judge.

This action involves the rental operation of a farm under a will and the sale of timber by a life tenant. Bertha Thomas Adams, widow of the testator, has appealed. Benoni S. Adams and William C. Adams, nephews of the testator, as succeeding life tenants, and their children, as remainder-men, have cross-appealed.

On July 5, 1951, James H. Adams died. He devised his 400-acre farm to his wife, the appellant, for life or until she remarried. This estate was subject to a power in his nephews to operate the farm during the widow’s tenancy. They were directed to pay her its fair rental value in semiannual installments. A succeeding life estate was devised to the nephews, with remainder to their issue.

Benoni S. Adams had operated the farm on a partnership basis with the testator for the six years preceding his death. The nephews operated the farm during 1952 and 1953 and paid the widow $3,000 each year, out of which she paid the taxes, insurance, and repairs on the farm. No satisfactory agreement was reached in 1954, so appellant rented to G. F. Noel. He operated the farm through 1960 and paid the widow from $5,000 to more than $7,000 yearly on a share crop basis. Each year from 1955 through 1959, appellant sold from twenty-five to sixty-two trees from the farm for which she received a total of $6,250.

This action was brought by the nephews to enforce their right to operate the farm pursuant to the power granted in the will and to have the court fix a fair rental to be paid appellant. Appellees also sought treble damages for the timber cut. The Chancellor fixed the fair rental of the farm at $4,200 per year, adjudged that appellant should pay the taxes, insurance, and repairs, and denied appellees any recovery for the sale of trees.

Appellant contends that she as a life tenant out of possession should not be required to pay the taxes, insurance, and repairs, and that the rental allowance is too low. The failure of the parties to agree on a rental to be paid necessitated the fixing of the rental by the Chancellor.

Counsel for appellant are to be commended for their frankness in admitting that they have found no case directly in point in support of their contention concerning the taxes, insurance, and repairs. They urge that appellant should be relieved of the burden of these payments. The answer is that the will provides for the rental arrangement and divides the estate devised to life tenants and remaindermen.

In such cases the rules are plain and of long standing. It is the duty of a life tenant to keep up the property and preserve the estate for the remaindermen. Sullivan v. Bland, 215 Ky. 57, 284 S.W. 410; Thomas v. Thomas’ Guardian, 244 Ky. 724, 51 S.W.2d 949. To that end the life tenant is bound to pay taxes, insurance, repairs, and improvements and cannot charge them against the remaindermen. Fisher’s Ex’r v. Haney, 180 Ky. 257, 202 S.W. 495; Shutt’s Adm’r v. Shutt’s Adm’r, 192 Ky. 98, 232 S.W. 405; Pool v. Pool, 214 Ky. 267, 283 S.W. 111; Cannon v. Carr, 292 Ky. 793, 168 S.W.2d 21; and Wheeler v. Kazee, Ky., 253 S.W.2d 378. Under this rule it is obligatory that appellant pay the items mentioned. The arguments of appellant to the contrary do not justify making an exception to the rule.

In determining the fair rental the Chancellor considered that such payments were to be made by the appellant. It was so provided in the judgment. The witnesses for appellant were, for the most part, tenant farmers who had been accustomed to share cropping arrangements and not cash rental agreements. The fair rental ranged from $6,500 to $8,000 per year, according to them. For appellees the witnesses were landowners in and around the farm in question, some of whom had had experience with cash rental arrangements. According to them, the fair rental should be from $3,-500 to $4,500 per year, with the landlord paying the taxes, insurance, and repairs. Other proof was offered by each side on this issue.

The Chancellor’s determination of $4,-200 as a fair rental, with appellant paying the taxes, etc., has a sound basis in proof. Appellant has not shown that it is clearly erroneous. It, therefore, is upheld. CR 52.01.

On the cross-appeal, appellees contend that the judgment is erroneous in so far as it is a denial of damages for cutting trees. It is admitted that appellant sold trees which were standing on the farm, that she did so without permission from the re-maindermen or other life tenants, and that she received the money from the sale and deposited it in her personal bank account.

KRS 381.350 provides:

“If any tenant for life or years commits waste during his estate or term, of anything belonging to the tenement so held, without special written permission to do so, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste is assessed.”

The law is well settled that a life tenant may not cut timber except such as might be needed for maintaining the improvements or required for domestic purposes. Kentucky River Consolidated Coal Co. v. Frazier, 161 Ky. 374, 170 S.W. 986; McCoy v. Ferguson, 164 Ky. 136, 175 S.W. 23; Decker v. Decker, 205 Ky. 69, 265 S.W. 483; Smith v. Harris, 276 Ky. 529, 124 S.W.2d 786; 93 C.J.S. Waste § 9, page 564. In Abel v. Wuesten, 143 Ky. 513, 136 S.W. 867, it was held, “By this section a special license in writing is necessary in order to authorize the tenant for life or years to commit waste, and without such special license in writing he is subject to an action of waste.” It was further held that under the statute the oral consent of the remaindermen would not relieve the life tenant from damages for waste. Appellant does not contend that she had permission or consent from the remaindermen to cut the trees. Two of the remaindermen were infants. The will contained two prohibitions against cutting timber.

Appellant seeks to justify the cutting in several ways. None is sufficient in the light of the established rule. So far as the judgment denied appellees’ recovery for the trees cut, it was in error.

Judgment affirmed on appeal and reversed on cross-appeal.


author: WILLIAMS, Judge.

text:
    Marion Parker DUKE, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    Rehearing Denied Nov. 15, 1963.

      Marion Parker Duke, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

The appellant, Marion Parker Duke, was convicted of voluntary manslaughter and sentenced to 21 years in the State Penitentiary. He petitioned the Lyon Circuit Court for a writ of habeas corpus which was dismissed on the ground that it did not state facts upon which relief could be granted. This appeal results.

Three separate indictments, each accusing appellant of willful murder, were returned by the Warren County grand jury. He was tried on the first indictment in 1954 and found guilty of voluntary manslaughter. He maintains that, since the indictment charged only the offense of willful murder, his conviction of voluntary manslaughter is not supported by the indictment and is not in conformity with the law. But where the accused is indicted for murder, it is proper to submit questions of guilt of lesser degrees of homicide committed under any circumstances or provocation of which there is evidence. Burris v. Commonwealth, 308 Ky. 145, 213 S.W.2d 1014.

In 1959, upon motion of the Commonwealth, the remaining two indictments against appellant were dismissed. It is his claim that the dismissal of those two indictments proves that he was not guilty of the charges made by the first indictment. Appellant was accused in each indictment of having killed a different person. The fact that the last two indictments were dismissed has no bearing on his conviction of voluntary manslaughter under the first indictment.

The two points discussed above are the only two raised on this appeal. However, since appellant is representing himself, we take notice that he states he was denied a transcript of the testimony taken at his trial in the Warren Circuit Court. He does not indicate that the transcript was requested for the purpose of taking an appeal, or for any other reason which would have indicated to the trial judge that such transcript was necessary.

The judgment of the Lyon Circuit Court dismissing the petition for habeas corpus is therefore affirmed.


text:
    Kenneth Lee CRADY and Frank Odell Gaines, Appellants, v. William CRANFILL, Sheriff and Jailer of Jefferson County, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 17, 1963.
    Rehearing Denied Nov. 15, 1963.

      Daniel B. Boone, Boone & Triplett, Louisville, for appellants.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Cecil Davenport, Laurence E. Higgins, E. P. Sawyer, Louisville, for appellee.
   PALMORE, Judge.

This is a habeas corpus proceeding in which Kenneth Lee Crady and Frank Odell Gaines appeal from a judgment of the Jefferson Circuit Court denying their application for discharge from custody. KRS 419.-130.

In 1956 appellants were convicted on felony charges in South Carolina and sentenced to terms of 14 years in the penitentiary of that state. In 1960 they were placed on parole and, being residents of Kentucky,, were transferred to the supervisory control of the probation and parole authorities of this state pursuant to the Uniform Act for Out-of-State Parole Supervision. See KRS 439.560. In July of 1962 they were convicted in Georgia on charges of illegal possession of burglars’ tools and were fined $1,000 each and sentenced to confinement in the penitentiary. However, the sentences of imprisonment were suspended on payment of the fines.

Having learned of the Georgia conviction, on August 10, 1962, the administrative director for the South Carolina Probation, Parole and Pardon Board issued and sent to Mr. James Wells, Director of Probation and Parole for this state, warrants requesting the arrest of appellants in order that they might be brought before the South Carolina parole board to show cause why their paroles should not be revoked. For some reason not' fully disclosed by the record Wells did not at once cause appellants to be taken into custody, but permitted them to remain at liberty. Meanwhile, the Kentucky State Police had become interested in the matter, learned that appellants were or would shortly be in Nashville, Tennessee, and notified police authorities there of the existence of the South Carolina warrants. On the basis of this information Tennessee officers arrested appellants on September 11, 1962, as fugitives from justice, and the South Carolina parole department was advised accordingly. Evidently one or more long distance telephone conversations between the Tennessee police and South Carolina parole personnel ensued, but the record contains no satisfactory proof of what was said and by whom. At any rate, on September 14, 1962, a federal marshal arrived at Nashville with a warrant or warrants for the arrest of appellants on felony charges growing out of a recent bank robbery in Louisville, Kentucky, and they were released (without their consent) by the Tennessee police to the marshal, who thereupon delivered them to the Jefferson County Jail in Louisville, under jurisdiction of the United States District Court for the Western District of Kentucky. Immediately thereafter the South Carolina warrants were lodged as detainers with the Sheriff of Jefferson County.

Appellants were promptly tried and convicted in the U. S. District Court and sentenced to penitentiary terms of 5 years each. They appealed these convictions, and on November 27, 1962, the District Court ordered their admission to bail pending appeal in the amounts of $10,000 each. They were unable, however, to obtain sureties until June 25 or 27, 1963, seven months later, at which time they met the requirements of the federal bail order but were then detained by the Sheriff pursuant to the South Carolina warrants (supplemented by a warrant subsequently issued by the Probation and Parole Division of this state), thereby precipitating this habeas corpus proceeding.

The crux of the case on the merits is the contention by appellants that their status immediately following the arrests at Nashville was that of convicted prisoners in the custody of the Tennessee police as agents for the South Carolina parole authorities, and that when they were turned over involuntarily to the federal marshal the jurisdiction and right of South Carolina to enforce completion of their 1956 prison terms was waived or forfeited under the doctrine of Jones v. Rayborn, Ky., 346 S.W.2d 743 (1961), Davis v. Harris, Ky., 355 S.W.2d 147 (1962) and Thomas v. Schumaker, Ky., 360 S.W.2d 215 (1962). If this theory is valid, then the South Carolina arrest warrants are not effective authority for further detention of the appellants by the Sheriff of Jefferson County.

In order to determine whether the facts of this case require the same result reached in the Jones, Davis and Thomas cases,, it is necessary to seek out and define more precisely the fundamental basis of the waiver theory.

When a prisoner of one state is transferred without reservation, and without his consent, to another state in order that he may be subjected to confinement in the latter, there is some reason to say that upon his release in the second state he is not a “fugitive from justice” and thus cannot properly be extradited. Quite possibly the waiver principle originated in that theory. Cf. 35 C.J.S. Extradition § 21, pp. 448-449; Davis v. Rhyne, 181 Kan. 443, 312 P.2d 626, 629 (1957) . In any event, considering the traditional definition of “waiver” as a unilateral and intentional relinquishment of a known right, it is apparent that as a description of the process by which a state may inadvertently lose its right over a prisoner because he has been unfairly handled by its officers,, the term is a misnomer. Actually, the process is more in the nature of a forfeiture, judicially invoked to secure fair treatment of the prisoner by the state. In People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N.E.2d 517, 147 A.L.R. 935, 940, it was said that “a prisoner cannot be handed from one jurisdiction to another for the purpose of trial, conviction and service of a new sentence, before being returned to the asylum State for service of the unexpired sentence, without violating his constitutional rights.” Again, our Jones opinion mentions in passing both the 14th Amendment of the U. S. Constitution and § 2 of the Kentucky Constitution, but it does not categorically place the decision of the case on either. On further reflection we have concluded that the question is not one of constitutional rights,, but of state policy. If it were otherwise, for example, that portion of the Uniform Criminal Extradition Act providing that in no case shall the surrender of a prisoner be construed as a complete relinquishment of jurisdiction by the asylum state, but the prisoner shall be returned after trial in the demanding state "or the completion of sentence therein, as the case may be,” (emphasis ours) probably would be unconstitutional. Yet it seems to be universally recognized. “The question of priority of jurisdiction is one of comity between the respective sovereignties and not one of personal right of the prisoner.” Davis v. Rhyne, 181 Kan. 443, 312 P.2d 626, 631 (1957).

Our Jones, Davis and Thomas opinions do not hold that the executive branch of this state does not have or may not be given the power to do what was done in those cases. The import of what they have to say is that it could not be done in the absence of some administrative regulation or statutory provision establishing procedural safeguards, which we deem necessary to the assurance of uniform and substantial justice in this particular jurisdiction. But as between this state and the State of South Carolina, it seems obvious that South Carolina’s interest in these particular prisoners is paramount to ours, and for that reason it would be inappropriate and contrary to sound policy for the courts of this state to arrogate to themselves the prerogative of declaring that South Carolina has forfeited the right to enforce its laws against them. In short, we hold that the privilege of determining whether South Carolina has lost that right should rest exclusively with the courts of that state. This result is, we believe, consistent with the spirit of, if not literally required by, that section of the ■interstate compact (Article III, KRS 439.-560) providing that the decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state. See also Jeffers v. State, 217 Ga. 740, 124 S.E. 2d 753 (1926).

The point is made that there was no proof that the compact set forth in KRS 439.560, though authorized, had been executed by the governor. We concur in the opinion of the trial court that it was admitted by the allegation in appellants’ petition “that supervision of their parole was transferred to the Commonwealth of Kentucky, pursuant to and in accordance with KRS 439.560,,” etc. (Emphasis ours.)

Certain procedural questions have arisen during the course of this litigation which require comment and clarification.

In its judgment denying relief the trial court directed that appellants be admitted to bail in the amounts of $10,000 each pending their appeal. This was erroneous.

“According to one line of authorities, on appeal from an adverse judgment in habeas corpus proceedings, the petitioner is entitled to bail pending the appeal. * * * But some courts hold that where, on habeas corpus, an order is made dismissing the writ and remanding the prisoner to custody, he is not entitled, pending appeal from the order, to be admitted to bail and released from custody on giving bond. Reasons given for this rule are that habeas corpus proceedings are not criminal proceedings and the statutes in relation to bail have no application to such a case, and that the effect of admission to bail would be indirectly to afford the prisoner the affirmative relief denied to him in denying his application for discharge from custody.” 8 Am.Jur.2d 804 (Bail and Recognizance, § 36). See also annotations, 63 A.L.R. 1495, 143 A.L.R. 1358.
“It is the prevailing view that habeas corpus is, in its nature, a civil rather than a criminal proceeding, even though sought in behalf of one charged with, or convicted of,, crime.” 25 Am.Jur. 151 (Habeas Corpus, § 12).

We concur in the view that habeas, corpus is essentially a civil proceeding. Hence the bail provisions of our Rules of Criminal Procedure which might otherwise have justified the granting of bail pending appeal do not apply. The only applicable law on the subject in this case is furnished by KRS 419.130(2), as follows:

“If the judgment in a habeas corpus proceeding orders the release of the person detained, any party may have the judgment stayed until the appeal is filed by notifying the judge rendering the judgment that he intends to appeal and upon complying with such terms as to bond or otherwise as the judge deems proper for the security of the person detained. The Court of Appeals may continue, modify or set aside the stay pending the appeal. The appellant may be required to give security for costs.” (Emphasis ours.)

It will be noted that bond is authorized pending appeal in a habeas corpus proceeding only when the judgment has discharged the person detained. This, of course, is not a bail bond, but is a special security provision within the discretion of the trial court. The prompt and summary manner in which the statutes direct both trial and appeal to be conducted in habeas corpus cases negates any intent that bail be allowed : “The writ must be made returnable as soon as possible.” KRS 419.030. “The hearing on the writ shall be summary in nature.” KRS 419.110(1). “Upon the filing of the appeal the clerk shall immediately deliver the papers to the Chief Justice, and the court shall proceed immediately to hearing thereof and complete the same as soon as practicable. If the court is in vacation at the time the appeal is filed, the Chief Justice shall call together a majority of the judges of the court who shall hear and determine the appeal as in regular session.” KRS 419.130(1).

Appellants filed notice of appeal on the same day the judgment was entered. One week later appellee applied to this court during its summer recess for a stay of that portion of the judgment admitting appellants to bail. While this motion was pending appellee moved the trial court to rescind the bail provision of the judgment but was overruled on the ground the trial court no longer had jurisdiction of the case. Reciting that circumstance, appellee then moved this court to rescind the bail proviso. Meanwhile, appellants posted bond and were released. The matter was brought on for hearing before a single judge and resulted in an order issued by Judge Bird sustaining the motion. We now have before us a motion that Judge Bird’s order be set aside as unauthorized because it was not the act of a quorum of the court.

Const. § 117 provides that a majority of the members of this court shall constitute a quorum for the transaction of business. This has been construed by RCA 1.010 as applicable only to final decisions and matters of policy. RCA 1.010(c) authorizes disposition of interlocutory matters by a single judge. Like the interlocutory orders of any court, actions taken by a single judge of this court are subject to modification or revocation until the court has finally disposed of the case. Judge Bird’s order was of this character, and we find no cause to set it aside as unauthorized.

The instance of an appellee’s application to this court for a stay .of some feature of a judgment from which he has not appealed is unusual. It is not specifically covered in the Civil Rules. Nonetheless, an appellate court has inherent power to issue such remedial orders as are appropriate to maintain the status quo of a case pending before it on review. Cf. Const. § 110; 4 Am.Jur.2d 840-841 (Appeal and Error, § 366). This is similar to the authority for a writ of prohibition when the lower court,, while the case is pending before it, acts or is about to act erroneously within its jurisdiction to the great and irreparable injury of one of the litigants with no adequate remedy at law. Potter v. Trivette, 303 Ky. 216, 197 S.W.2d 245 (1946). As the case had been appealed and was pending before this court, CR 81 is broad enough to authorize the procedure followed by appellee in seeking interlocutory relief from that portion of the judgment admitting appellants to bail. The effect of Judge Bird’s order is more fully discussed in the companion case of Crady v. Bensinger, Ky., 370 S.W.2d 820.

The judgment is affirmed.

      .The authority for and regularity of these warrants are not questioned in this proceeding.

      . No question is raised as to the legality of the arrests.

      . Who is jailer also, per Const. § 105 and KRS 71.110.

      . In which it is said that “this is not the rule of the great weight of authority.”

      . Black’s Law Dictionary (4th ed.), p. 1751.

      .Just what constitutional rights the Illinois court had in mind are not specified.

      .HRS 440.330.

      . RCr 12.78, 12.82.

      . OR 62.02 and 65.08 establish procedure for a stay order on motion of any party pending appeal of an injunction case. OR 62.03 provides for the stay of any other kind of judgment through execution of a supersedeas bond by the appellant.

      . Which provides that relief heretofore available by various writs may be obtained-by appropriate motion.


text:
    J. Laurel HOPPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.
    Bruce H. Phillips, Monticello, Fritz Krueger, Somerset, for appellant.
    John B. Breckinridge, Atty. Gen., James A. Hicks, Commonwealth’s Atty., Albany, Ray Corns, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, Laurel Hopper, was convicted of voluntary manslaughter and sentenced to 10 years’ imprisonment under an indictment charging him with the murder of Clarence Jones. He claims prejudicial error in the following respects:

(1) Failure of the court to hold a sanity hearing;
(2) Refusal of a continuance as requested ;
(3) Overruling of his motion for a directed verdict of acquittal;
(4) Omission of the court to instruct the jury concerning appellant’s failure to testify, and improper comment in this regard by the Commonwealth’s Attorney; and
(5) Erroneous instructions.

The evidence showed that appellant resided across the road from a country store in Wayne County. Several individuals passing the time of day in front of the store saw appellant and Jones at appellant’s home. While both men were outside the house and in view of the spectators at the store, appellant was seen pointing what appeared to be a pistol in the direction of Jones, a shot was heard, and Jones fell to the ground. Appellant then went into the house and shortly thereafter came out, locked the door, and drove away in an automobile, whereupon the witnesses went across the road onto his premises and found Jones dead from a gunshot wound' in the upper part of his body. A bullet was later removed from the body by a physician, but neither it nor the gun from which it was fired was introduced in evidence. No weapon was found on or about the person of Jones. Appellant neither testified nor introduced any other proof in defense.

We are of the opinion that this evidence was sufficient against the motion for a directed verdict.

Appellant was indicted on November 26, 1962, and his trial was set for December 14, 1962. On the latter date his counsel submitted a verified motion for continuance to the March term of court, alleging that appellant was in such a state of emotional instability and physical illness that he could not assist in the preparation of his defense, and that he was mentally and physically unable to testify. In lieu of continuing the case over to the March term the court called a special term for January 11, 1963, re-set the trial for that date, and directed that appellant be transferred to the state hospital at Danville on or about January 2, 1963, for an observation period of three to five days.

The record discloses that the case went to trial on January 11 as scheduled, with the result heretofore indicated. There was no renewal or new motion for continuance, nor any showing that appellant’s condition at this time continued the same as it had been represented to be on December 14, 1962. There also is nothing in the record with respect to the examination at Danville except for an allegation in the motion for new trial that appellant was not ready for trial because he had just been returned on the day before the trial.

This being all of the information before us, we cannot say the court abused its discretion in not ordering a formal sanity hearing pursuant to RCr 8.06, cf. Anderson v. Commonwealth, Ky., 353 S.W.2d 381, 385 (1962); Robinson v. Commonwealth, Ky., 243 S.W.2d 673 (1951); or in postponing the trial for a period of four weeks instead of setting it for the March term. If appellant’s incapacity actually continued into January so that, together with the time of his absence while being observed at the hospital, his attorneys were substantially and unavoidably prevented from preparing a defense, those circumstances could and should have been submitted to the court in the form of another motion and affidavit on or immediately before the trial date of January 11, 1963. Without such a record there simply is no reasonable basis on which this court can judge whether counsel were afforded adequate opportunity to prepare his case.

In the course of his closing address to the jury the Commonwealth’s Attorney said, “No witness has been introduced in behalf of the defendant in this prosecution to tell you he didn’t slay this man on that occasion and calmly get in his automobile after he walked back * * * ” (at which point an objection was made) “* * * Nobody tells you that didn’t happen * The court then admonished the jury not to consider any statement with reference to the fact that no witness made a denial. Counsel for defendant moved to discharge the jury, but no further action was taken by the court.

As the Commonwealth’s Attorney had already made one previous 1 emark (without objection) to the effect that the defense had introduced no witness to enlighten the jury on what had happened on the fatal occasion, repetition of the comment brought him one step nearer to the outer limits of propriety. See discussions in Anderson v. Commonwealth, Ky., 353 S.W.2d 381, 386 (1962), and Neal v. Commonwealth, Ky., 302 S.W.2d 573, 577 (1957). We condemn it, and suggest that this opinion be received as fair warning. In view, however, of the trial court’s admonition and the careful manner in which it was expressed we are of the opinion that there was no prejudicial error. (It is unnecessary for us to decide whether there would have been a prejudicial error in the absence of the admonition.)

The case of Kelley v. Commonwealth, 300 Ky. 136, 187 S.W.2d 796 (1945), indicates that perhaps a requested instruction to the effect that a defendant’s failure to testify does not create any presumption against him should be given if there has been some reference to the matter, but we need not decide the question here because appellant made no such request. It is our view that such an instruction would do more harm than good, and unless the defendant himself insisted upon it we are inclined to believe it would be a prejudicial error.

The instruction on reasonable doubt was substantially in accordance with Stanley’s Instructions § 868, No. 4, except that it included involuntary as well as voluntary manslaughter:

“If, upon the whole case, you have a reasonable doubt of the defendant having been proved guilty, you ought to find him not guilty; or if you find him guilty, but on all the evidence, have a reasonable doubt as to whether he has been proved guilty of wilful murder, voluntary manslaughter or involuntary manslaughter, you will find him guilty of the lower offense, involuntary manslaughter.”

Appellant contends that use of the word “or” following the semicolon nullifies the reasonable doubt instruction on the whole case. The word would be better omitted, but the possibility of misunderstanding is, we believe, too remote to call the instruction prejudicially erroneous. As given, the instruction was incorrect in one respect, wherein it told the jury that if, upon a finding of guilt, they had a reasonable doubt as to the degree of the offense, they should find the defendant guilty of involuntary manslaughter. However, this error favored the appellant.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Joseph Vincent TRUGLIO, Appellee.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.

      John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., Frankfort, R. K. Grant, Asst. Com. Atty., Louisville, for appellant.
    Frank E. Haddad, Jr., Louisville, for ap-pellee.
   STEWART, Judge.

Appellee,- Joseph Vincent Truglio, was tried twice on a charge of armed robbery. In both trials he was convicted and given a sentence of life imprisonment; in both cases his motion for a new trial was sustained by the trial court. The reason given for granting the new trial was there was insufficient proof tending to connect him with the commission of the offense of which he was accused, except the evidence given by his two codefendants who were accomplices to the act, both of whom have been convicted on guilty pleas. The Commonwealth instituted this proceeding asking for a certification of the law on the question. See KRS 21.140(3) (formerly section 337 of the Criminal Code of Practice).

The two alleged accomplices were Michael Rentschler and Calvin Carmen. At appellee’s first trial, Rentschler testified ap-pellee furnished the guns for the robbery and drove him and Carmen to and from the store where the crime was committed. He further stated that the money was split among Carmen, appellee and him. Carmen, a reluctant, even hostile, witness, claimed he walked to the situs of the robbery, held up the place alone, kept all the money hiin-self, and rode home on the bus. He did add that he obtained his gun from appellee’s car.

At the first trial, the two persons who were in the store at the time it was held up positively identified Rentschler and Carmen as the two men who perpetrated the robbery. They said they did not see appellee or any third person in or near the store. The Commonwealth also introduced a witness, who was a sister of the accomplice Rent-schler, and she testified she had seen ap-pellee with her brother and Carmen two hours prior to the robbery. Her boy friend testified he drove appellee from the home of Rentschler about three hours after the robbery.

This same evidence was presented at the second trial. However, the Commonwealth then produced a new witness, Terrence Bel-cher, who had been an inmate in the Jefferson County jail during the first trial. He testified he overheard a conversation between appellee and Carmen in the waiting room of the jail on the eve of appellee’s and Carmen’s departure from the jail for the courtroom. Belcher stated they “were talking about a robbery that had happened,” and that Carmen was requested by appellee “to say nothing about Joe Truglio furnishing the guns and driving the car during that robbery.” After both men came back from the courtroom, according to Belcher, and we quote his exact statement, “ * * * they had another conversation in which Joe shook the boy’s hand and told him how glad he was that he didn’t implicate him in the robbery, tie told Truglio that he did not tell the Judge that Joe supplied the weapons and the car.”

Belcher, at the time he testified, was under federal sentence for a violation of the Dyer Act. In addition he was serving time on a grand larceny charge which had been amended to petit larceny. It appears the reduction of the charge was made by the Commonwealth after he had given the law-enforcement authorities a statement against appellee. When asked whether the reduction was made in consideration of giving the statement against appellee, he refused to answer, relying upon the Fifth Amendment to the federal Constitution. However, he did remark he was testifying against appel-lee because he was angry at him for refusing to get him out of jail on bond.

Appellee did not introduce any evidence.

This case came to trial the second time in October, 1962, at which time the Criminal Code of Practice was in effect. Section 241 thereof reads: “A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show that the offense was committed, and the circumstances thereof.”

In Cook v. Commonwealth, Ky., 273 S.W.2d 390, 392, this Court commenting on that section used these words: ‘Corroboration of an accomplice’ requires evidence other than, and independent of, the testimony of the accomplice, which tends to establish the existence of some fact which actually connects the accused with the commission of the offense charged in the indictment, and unless there is other evidence of that character in addition to the testimony of the accomplice, then there is no corroboration and the defendant is entitled to a peremptory instruction.” (Citation omitted.)

In Harris v. Commonwealth, Ky., 285 S.W.2d 489, 491, it was said: “ * * * we have held the requirement of the rule is met if the corroborative evidence is of such quality that a reasonable and unprejudiced mind could conclude that it tends to establish some fact that links the accused up with the principal fact of the commission of the offense.” (Citation omitted.)

The Commonwealth contends that, as a matter of law, sufficient evidence was introduced which tended to connect appellee with the commission of the crime, without the testimony of the accomplices. This evidence, argues the Commonwealth, placed ap-pellee in the company of the accomplices a short time before and a short time after the commission of the crime; and that the first conversation supposedly overheard by Bel-cher at the jail conclusively shows appellee supplied the guns and drove the car for the commission of the crime.

It was established appellee was in the company of the robbers two hours prior, and approximately three hours subsequent, to the commission of the offense, and the Commonwealth insists such evidence, standing alone, was sufficient corroborative evidence of guilt. In Luster and Smith v. Commonwealth, Ky., 333 S.W.2d 267, the only proof there other than that of the accomplice, Luster, which tended to link Smith in any way with the offense of which he was accused, was testimony that Smith was with Luster early in the evening on the night the crime was committed and that he slept that night at the home of Luster. The Court held that this was not sufficient corroboration to connect Smith with the commission of the offense charged.

The trial court was of the opinion that testimony relative to the first portion of the alleged conversation he had with appellee, while mentioning “a robbery that had happened,” failed to identify appellee with the commission of the offense “with which he was charged in the indictment.” We are inclined to adopt this view.

The facts in the Luster and Smith case are analogous to the facts in the case at bar. Guilt may not be established, unless other incriminating evidence appears, by proof of the association of an accused with the perpetrators of a crime before and after its commission. Therefore, in the present state of the record before us, it is our opinion there was a lack of corroborative testimony which tended to link up appellee with the commission of the offense of which he was charged.

Wherefore, the law is certified.


author: WOLFE, Judge.

text:
    LINDBERG CADILLAC COMPANY, a Corporation, (Plaintiff) Respondent, v. Leonard ARON, (Defendant) Appellant.
    No. 31419.
    St. Louis Court of Appeals. Missouri.
    Oct. 15, 1963.
    Rosenblum & Goldenhersh, Merle L. Sil-verstein, Emanuel Shapiro, St. Louis, for appellant.
    Boyle, Priest, Elliott & Weakley, Howard Elliott, Edward D. Weakley, Howard Elliott, Jr., St. Louis, for respondent.
   WOLFE, Judge.

This is an action in fraud in which the defendant is charged by the plaintiff with concealing defects in an automobile which he traded to plaintiff in part payment of the purchase price of a new car which the plaintiff sold to him. The trial was to the court, which found for the plaintiff in the sum of $759.00 and costs. After an unavailing motion for a new trial, the defendant appealed.

The plaintiff company was engaged in the sale of automobiles. Its business was located in the City of St. Louis. The defendant was in the vending machine business in St. Louis. He had some trucks and a Cadillac and Imperial automobiles which he used in connection with his business.

He decided to trade in his 1957 Imperial on another Cadillac. In June of 1959 the Imperial was brought into the plaintiff’s place of business and was appraised by the salesmanager in charge of such work. He examined the automobile and appraised its value to be $2,165 at that time. No deal was made then because the parties were unable to reach a trade-in figure that was agreeable to both.

In the month of October, 1959, during a cold spell, the coolant in the Imperial froze. The car was taken to a filling station which Aron, the defendant, patronized. According to the testimony of the filling station operator, defendant told him that the motor had frozen and he wanted it checked to see if it had cracked. The filling station operator thawed out the motor and placed the car on a grease rack to check it over. He testified that he found two cracks on each side of the motor block. He said that he told Aron, the defendant, that the block was cracked. He estimated the cost of a new block to be in the neighborhood of four or five hundred dollars. He told Aron that he could put a “K and W sealer” in the cracks, but that it would be “strictly temporary”. He also suggested that if the car was to be traded in, the cracks filled with the sealer could be covered with Permatex, which would conceal the filled cracks. Permatex is a gasket sealer and could serve no purpose other than to conceal the filled cracks in the motor block. He said that Aron told him to do this work, and that he did a “pretty smooth job” and that the Permatex concealed the cracks.

About the 20th of November, 1959, Aron drove the Imperial into the Lindberg Cadillac Company’s service department for appraisal as a trade-in. It was there about half an hour, and he then drove it away. Aron had not driven the Imperial after the crack sealer was put in until the time he drove it to the plaintiff’s place of business ■for the purpose of a trade-in. Defendant Aron testified that he discussed the condition of the Imperial in plaintiff’s office when ■they were attempting to close the deal. He said that they agreed that it needed floor mats, that the motor was leaking oil and .needed repair, and that the fenders needed fixing. He did not tell either the salesman or the salesmanager about the cracked :block. Thus the car which had been appraised in June was reappraised on November 20, and an agreement was eventually reached to allow $2,290 for the Imperial on the purchase price of a new Cadillac. There was testimony that the actual value of the Imperial as traded in, assuming that the block was not cracked, was appraised at $1,720.00, and $259.00 was later spent by the plaintiff on reconditioning it for sale. There was also testimony that the book value of the car was $1,979.00.

The salesmanager for the plaintiff company, who made the appraisal of the car, drove it for a few minutes on November 20. He checked the heat gauge to see if it was overheating. This would normally disclose a cracked motor block. He also checked for water leaks, and found none. After the appraisal and sale, the car was reconditioned in the normal course of business for sale. This usually took about 30 days.

On December 21, the Imperial as reconditioned was sold for $2,476.08. The purchaser returned the next day and complained that it was overheating. The car was taken to the plaintiff’s shop to verify the purchaser’s complaint. It was found that the motor block had the cracks in it, and the plaintiff refunded to the purchaser the money he had paid for the car. The plaintiff then sold the Imperial, known to the buyer to have a cracked motor block, for $1,200.

The defendant, testifying in his own behalf, said that he did not know what a motor block was. He said that when the Imperial was frozen, he took it to the filling station because they were supposed to have put anti-freeze in the radiator. He testified that the station attendant said that he would take care of what was wrong, and kept the car for about a day. The attendant said nothing to him about the cracked motor block. He said that after he was informed of the cracked block by the plaintiff, he never went to the filling station attendant about the matter nor had any communication with him in relation to it. Defendant also testified that he had been sentenced to three and one-half years for counterfeiting cigarette tax stamps, and at the time of trial he was on probation for a period of seven years.

As stated, the court found for the plaintiff in the sum of $759.00, and the defendant appealed.

The first point he raises is that the appellant failed to make a prima facie showing of fraud, and that the court should have found for the defendant. The appellant asserts in support of this that he made no misrepresentation, and that his mere silence cannot he held to have been fraudulent where the matter was open to investigation by the party alleged to have been defrauded. This constitutes a complete disregard of the facts. Silence can be an act of fraud. In one of our earliest cases, McAdams v. Cates, 24 Mo. 223, l. c. 225, our Supreme Court stated:

“If, in a contract of sale, the vendor knowingly allow the vendee to be deceived as to the thing sold in a material matter, his silence is grossly fraudulent in a moral point of view, and may be safely treated accordingly in the law tribunals of the country. Although he is not required to give the purchaser all the information he possesses himself, he can not be permitted to be silent when his silence operates virtually as a fraud. If he fails to disclose an intrinsic circumstance that is vital to the contract, knowing that the other party is acting upon the presumption that no such fact exists, it would seem to be quite as much a fraud as if he had expressly denied it, or asserted the reverse, or used any artifice to conceal it, or to call off the buyer’s attention from it.”

The reason for the rule is that since matters are not what they appear to be and the true state of affairs is not discoverable by ordinary diligence, deceit is accomplished by suppression of the truth. 23 Am.Jur. Fraud and Deceit, § 84, p. 863.

We have in the facts before us more than a failure to speak. There is also a positive fraudulent concealment. In the case of Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083, decided by this court, we have before us facts quite similar in effect to those here under consideration. There a fraudulent seller turned back the speedometer in the car sold to 22,400 miles, when the car had in fact been driven 48,800 miles. There was- no verbal or written representation by the seller, but the buyer, relying upon the mileage registered on the speedometer, purchased the car. We held that the buyer had been defrauded by the deception, stating: “ * * * a representation is not confined to words or positive assertions; it may consist as well of deeds, acts, or artifices of a nature calculated to mislead another and thereby to allow the fraud-feasor to obtain an undue advantage over him.” See, also, Hutchings v. Tipsword, Mo.App., 363 S.W.2d 40, l. c. 45. The acts of the defendant as stated above were designed to, and did, defraud the plaintiff, and there is no merit to the contention that a case in fraud was not made.

The second point raised is that the court erred in its finding as to damages. The court reached the sum of $759.00 as damages by allowing $500.00 for the motor block and $259.00 for the sum spent by the plaintiff in reconditioning the car. It is asserted that the proper measure of damages is the difference between the actual value and the value the car would have had if the representation had been true. We agree that such generally is the proper measure of damages. Salmon v. Brookshire, Mo.App., 301 S.W.2d 48.

In applying the rule we must consider the nature of the fraud committed as it reflects upon the value of the property as fraudulently represented. A trade was made here with the full knowledge that the car was to be reconditioned for sale. It was represented as a car that could be so reconditioned by certain minor repairs caused by normal use. It was known by the defendant that the expenditures that the plaintiff intended to make would not make the car serviceable for resale, as the car, after such repairs, could not honestly be sold for its intended use. The fact that the court, in reaching the amount of damages, found the cost of the block and the cost of the repairs to be the total, was not erroneous, as both went to the value of the car as represented and its actual value. Shechter v. Brewer, Mo.App., 344 S.W.2d 784; McFarland v. Cobb, Mo.Sup., 64 S.W.2d 931; Monsanto Chemical Works v. American Zinc, Lead & Smelting Co., Mo. Sup., 253 S.W. 1006.

We find no error present, and the judgment is affirmed.

RUDDY, P. J., and WILLIAM M. KIM-BERLIN, Special Judge, concur.

ANDERSON, J., not participating.