text:
    In re ADELMAN’S ESTATE. William ADELMAN, Appellant, v. Josephine ROSENBLUM (Executrix), Respondent.
    No. 23986.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Robert I. Adelman, Kansas City, for appellant.
    Harold Waxman, Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

The matters presented in this appeal involve the election of the surviving husband, William Adelman, to take against the Last Will and Testament of his deceased wife, Mary Pener Adelman. This attempted election was denied by the Probate Court of Jackson County. Thereafter an appeal was taken by the surviving husband to the Circuit Court where a judgment was entered affirming the order of the Probate Court entitled “Order Denying Election of Surviving Spouse.” From this judgment William Adelman appealed.

Appellant and his deceased wife were married on August 24, 1960. Prior to the marriage and on June 25, 1960, this elderly couple entered into an ante-nuptial agreement in which they listed their separate properties and each agreed that “a full disclosure of their respective properties and estates” had been made.

The contract then provided that each should continue to separately own his or her property possessed at the date of the marriage and have full right to dispose of it at any time during the marriage, and also the full right of disposition at death free from any marital rights of the other spouse.

It further provided that beginning at the date of marriage they should establish a joint bank account with right of survivor-ship into which the wife should put one-half of the gross rentals of her real estate (at that time $337.50 per month) and the husband should contribute to said joint account all sums of money he earned from personal service or received as pensions. From this account they would pay their household and other expenses. In the event the wife sold her real estate she was to make monthly contributions to the joint bank account in sums equal to one-half of the gross rental value of said property at the time of sale.

The contract expressly excepted from its provisions “any property or estate which the parties hereto may acquire jointly or by the entireties during their marriage.” It also expressly excepted from its provisions “any property acquired or accumulated by the parties jointly from and after the date of the marriage.”

The contract further provided that in the event of divorce or separation neither party should have any claim against the property belonging to the other prior to their marriage.

It then provided that in the event the wife died first the husband should not share in any of her estate possessed by her at the time of their marriage “and by signing this agreement party of the second part (husband) waives and relinquishes and quitclaims any and all interests, rights, title or claims of every kind and nature, rights to inherit of every kind and nature, and all marital, statutory and dower rights and allowances as surviving widower under any laws providing for the same and any and all statutory rights, claims, allowances and awards as surviving widower or spouse, and rights of homestead and any and all rights in and to the estate of the first party.”

The wife in the event she survived the husband in similar fashion waived all her rights in his property owned at the time of the marriage. Mrs. Adelman died on May 27, 1961.

When this case reached the Circuit' Court on appeal from the order and judgment of the Probate Court holding appellant’s election as surviving spouse was of no force and effect because of the ante-nuptial contract of appellant and his deceased wife appellant filed his written motion for summary judgment on the pleadings, wherein he stated:

“Movant further states that the facts herein are admitted by all parties hereto and there is no dispute as to such; that the only issues before the Court are questions of law; that it is agreeable between all parties hereto that this case and all issues herein be decided by this court on motion.”

Respondent also filed a motion for summary judgment on the pleadings claiming the ante-nuptial agreement was a bar to any claims of appellant as surviving spouse as held by the Probate Court. The Circuit Court denied appellant’s motion for judgment on the pleadings and sustained respondent’s motion.

Appellant first contends that the case was not heard and decided by the Circuit Court de novo. From the above it is clear that appellant got exactly the kind of trial he solemnly requested in his pleadings and is in no position to complain.

The following quotation from 5 C. J.S. Appeal and Error § 1508a, page 943 was copied with approval by this court in the cases of Lankford v. Arnold, 225 Mo.App. 844, 33 S.W.2d 995, 998 and Charlsworth v. Jacob, 224 Mo.App. 1014, 24 S.W. 2d 671, 672.

“Where a party voluntarily adopts a certain form of procedure or agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be permitted to complain, on appeal or error, that proceedings had in conformity thereto were erroneous.”

Appellant also complains that the Circuit Court did not make definite findings and directions for procedure in the Probate Court. Appellant made no request for such findings until his motion for new trial was filed. Civil Rule 73.01, V.A.M.R. provides unless one of the parties requests findings of fact and conclusions of law before final submission the court need not make such specific findings of fact and conclusions of law. See, also, Bonnot v. Tackitt, Mo.App., 265 S.W.2d 748, 750.

Appellant further contends that the ante-nuptial agreement does not fulfill all the requirements of Section 474.120 V.A.M.S. 1949 (as amended) and, therefore, does not constitute a valid bar to his rights of inheritance and other statutory rights. Said section is as follows:

“474.120. Inheritance and statutory rights barred by ante-nuptial contract.
“If any person prior to and in contemplation of marriage in agreement or marriage contract with his intended spouse, or other person, receives any estate either real or personal, to take effect after the death of his spouse, or any other time, as a provision for his support during life, and expressed to be in full discharge of all his rights of inheritance or any other statutory rights in the estate of his spouse, such estate shall be valid, and a bar to his rights of inheritance and other statutory rights in the estate of his spouse. (L.1955, p. 385, § 247.)”

The cases upon which the appellant husband relies were based upon Section 469.160 RSMo 1949, which reads as follows:

“469.160. Marriage contract, when a bar to dower.—
“If any woman prior to and in con- . templation of marriage, shall, in agreement or marriage contract with her intended husband, or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid, and a bar to dower in the estate of her husband. When any lands have been or hereafter shall be conveyed to the husband and wife, or to any other person and their heirs, and to the use of the husband and wife, or to the use of the wife, for the jointure of the wife, every such married woman having such jointure made shall not claim any dower in the residue of the lands of which her husband was at any time seized. (R.S.1939, § 334.)” Emphasis ours.

That section applied only when a woman contracted “by way of jointure” to release her claim of dower. It did not apply to a claim by a husband against his wife’s estate. Furthermore, no jointure or dower is involved in the contract in question here. But more important, Sec. 469.-160 was repealed by the Probate Code enacted in 1955 which also abolished dower, Sec. 474.110. The ante-nuptial contract in question here was executed in 1960 and the marriage also occurred in 1960. So it is clear that this case is controlled by the statutes in effect at that time, particularly sec. 474.220 which provides:

“Waiver of right to elect
' “The right of election of a surviving spouse (to take against the will) here-inbefore given may be waived before or after marriage by a written contract, agreement or waiver signed by the party waiving the right of election, after full disclosure of the nature and extent of the right, if the thing or the promise given to the waiving party is a fair consideration under all the circumstances. The written contract, agreement or waiver may be filed in the same manner as hereinbefore provided for the filing of an election. (L.1955, p. 385,. §-258.)”

Sec. 474.120, as it existed in 1960, might be contended to overlap or require harmonizing with Sec. 474.220. Construing the two sections together and giving effect to each, it appears that Sec. 474.220 exclusively controls a will case and that Sec. 474.120 applies only to an intestate estate. That such was the legislative intent becomes abundantly clear by the reenactment of such section, as amended, in 1963. In short, under the new code the law as to the validity of ante-nuptial and post-nuptial contracts is the same in both testate and intestate estates.

In the instant case, it cannot be soundly urged that there was not full disclosure to the husband nor that the consideration for his contract was unfair. Hence, his attempted election to renounce his wife’s will is ineffective.

After this cause was heard in the Probate Court and taken under advisement, the Probate Judge, Hon. Leslie A. Welch, filed a written opinion entitled “Memo on Election to take against Will.” That opinion clearly and accurately expresses our own views of the case. It reads as follows:

“In the opinion of this court, the husband, by reason of the ante-nuptial contract, is barred by Secs. 474.120 and 474.220 from receiving any property owned by the deceased except as provided in said contract.
“On the hearing, it was admitted by the husband that each party to the contract had performed their respective obligations (except for the payment by the wife-of of the rent of the real estate during the last two months of her life), that there was no failure of disclosure or other fraud by the deceased inducing the execution of the contract, and that the sole issue was whether the contract was valid, and enforceable. The husband contends the contract lacked the consideration required by the statute in that 'there was no jointure.’
“Dower was abolished by the new code, and counsel’s views anent ‘jointure’ are irrelevant. His contentions that to be valid a pre-nuptial contract must provide support for the life of the surviving spouse are, in my opinion, quite unsound, either before or after the new code. Even before the new code, in the opinion of this court, the consideration was sufficient if the spouse received any property before or after death ‘and expressed to be in full discharge of all his rights of inheritance or any other statutory rights in the estate of his spouse.’
“While there was some confusion in the cases before the new code—see Maus, Probate Law and Practice, See. 1241, pp. 439 to 443, Vol. 4—the later cases adopted the better view that irrespective of whether the facts came within the other so-called join-ture statute, contracts made in consideration of marriage and mutual waivers of rights in the estate of the other were enforceable if fairly made.
“This court agrees with Mr. Maus when he says:
“ ‘It would be an anomalous rule' which under the same circumstances and upon the same consideration would uphold a waiver of a right to renounce a will and yet rtrike down a jointure or an agreement by which the husband or wife renounced his statutory inheritance and other marital interests.’ ”

“It should be noted that provisions as to ‘jointure’ and ‘dower’ in the old statute were omitted in the new section. Instead, the latter authorized the barring by contract of ‘inheritance or any other statutory rights of his spouse.’ Thus, the contract here bars a claim by the husband to homestead and family support allowance as well as any other participation in the wife’s estate, except as authorized by said contract.

¡ “Hence, the attempted election of William Adelman to take against the will is denied.”

For the reasons stated by the learned Probate Judge the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Edgar T. ANDERSON, Alfred Davidson, and Frederick T. Allen, as individuals and on behalf of a committee of petitioners of the City of Columbia, Missouri, Appellants, v. Robert C. SMITH, Clyde R. Cunningham, Roy 43. Wiley, Ira L. Davis, and Carl L. Brady, individually, and as constituting the City Council of the City of Columbia, Missouri, and, B. D. Simon, Jr., John C. Crighton, Charles J. Proctor, Dorsey M. Russell, and Dell Keepers, individually, and as constituting the Board of Commissioners of the Land Clearance for Redevelopment Authority, Columbia, Missouri, Respondents. STATE of Missouri ex rel. Edgar T. ANDERSON, Alfred Davidson and Frederick T. Allen, as individuals and on behalf of a committee of petitioners of the City of Columbia, Missouri, Appellants, v. Robert C. SMITH, Clyde R. Cunningham, Roy G. Wiley, Ira L. Davis, and Carl L. Brady, individually, and as constituting the City Council of the City of Columbia, Missouri, Respondents.
    Nos. 23852-23854.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.

      Michael J. Trombley, Columbia, J. David Collins, Edwards, Hess & Collins, Macon, for appellants.
    George F. Nickolaus, City Counselor, Carl F. Sapp, Columbia, for respondents.
   HUNTER, Judge.

Plaintiffs, as property owners, citizens, taxpayers, and electors of the City of Columbia, Missouri, filed two suits in the Circuit Court of Boone County against the City Councilmen of Columbia, individually as members of the city council.

The first filed suit (case number 45975) was for a declaratory judgment and injunction. The judgment of the trial court denied the requested injunction and in effect denied plaintiffs their requested declaration of rights because the identical legal questions are presented in case number 45976. While plaintiffs appealed from this judgment they have abandoned that appeal by their failure to present any contentions of error or other objection thereto in their briefs, and that appeal should be dismissed.

In the second suit, case number 45976, in Count I plaintiffs sought a peremptory writ of mandamus requiring defendants, members of the city council, to perform their alleged duties under Article XVIII, Sections 132, 134 and 135 of the Home Rule Charter for the City of Columbia, Missouri relative to an initiative petition submitted to them by plaintiffs. In Count II plaintiffs sought substantially the same relief as in Count I but with regard to a referendum petition submitted by them to defendants and not acted on and denied by defendants.

The judgment entered in case number 45976 was in favor of defendants on Count I, refusing to require the city council to enact the ordinance proposed in the initiative petition or to submit it to a vote of the electors of the city. The judgment was in favor of plaintiffs on Count II, requiring defendants to either repeal Ordinance No. 1788 or to submit it to the vote of the electors. Plaintiffs appealed from the.judgment on Count I and defendants appealed from the judgment on Count II. However, in their briefs defendants have not presented any contentions of error regarding the judgment on Count II and thereby have, abandoned their appeal therefrom. ,

Remaining for our determination on this-appeal is plaintiff’s appeal from the judgment entered on Count I, case No. 45976Í concerning the refusal of the trial court to order the city councilmen to enact a certain proposed ordinance contained in an initiative petition or to submit it to the voters of the city.

A chronological statement of the background of the present question is necessRxy to an understanding of the appellate contentions of the parties.

In 1951 our state legislature enacted, the “Land Clearance For Redevelopment Authority Law” (Sections 99.300 ff., RSMo-1959, V.A.M.S.). This law found and declared that there exist in localities throughout the state blighted and insanitary areas, injurious to public health, safety and morals that such condition is beyond remedy and' control solely by regulatory process and' private enterprise. It provided:. “There-is hereby created in each community (as herein defined) a public body corporate and politic, to be known as the ‘Land Clearance For Redevelopment Authority’ of the community ; provided, however:

“(1) That such authority shall not transact any business or exercise its powers hereunder until or unless the governing body shall approve (by resolution or ordinance as herein provided) the exercise in such community of the powers, functions and duties of an authority under this law; and provided further that, if it deems such action to be in the public interest, the governing body may, instead of such resolution or ordinance adopt a resolution or ordinance approving the exercise of such powers, functions and duties by the community itself or by the housing authority, if one exists or is subsequently established in the community, and in such event, the community or housing authority, as the case may be, shall be vested with all the powers, functions, rights, duties and privileges of a land clearance for redevelopment authority under this law.
“(2) The governing body of a community shall not adopt a resolution or ordinance pursuant to subdivision (1) above unless it finds:
“(a) That one or more blighted, or insanitary areas (as herein defined) exist in such community; and
“(b) That the redevelopment of such area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of such community.”

The state statute above mentioned in Section 99.320(6) defined the statutory term “community” as follows: “ ‘Community’ * * * any county or municipality, except that such term shall not include any municipality containing less than seventy-five thousand inhabitants until the governing body thereof shall have submitted the proposition of accepting the provisions of this law to the qualified voters therein at an election called and held as provided by law for the incurring of indebtedness by such municipality, and a majority of the voters voting at such election shall have voted in favor of such proposition.”

Columbia, Missouri is a municipal corporation with a population which has always been substantially less than 75,000. Pursuant to Section 99.320(6) of the mentioned statute the City Council of Columbia on April 23, 1956, enacted Ordinance No. 485 finding that one or more blighted or insanitary areas exist in Columbia and that the redevelopment thereof is necessary in the interest of the health, safety, morals or welfare of the city, and in effect accepted the provisions of the Land Clearance For Redevelopment Authority Law subject to a vote of the people thereon. Ordinance No. 485 provided for a special election to be held on May 29, 1956, to submit to the electors of Columbia the proposition of whether they accept the provisions of the Law, and “approving the exercise of the powers, duties, and functions of said law by a land clearance for redevelopment authority * * * and establishing such authority by finding that one or more blighted or insanitary areas as defined in said law exist in the City of Columbia, and that the redevelopment of such area or areas is necessary in the interest of the health, safety, morals and welfare of the residents of said City.”

The special election was held on May 29, 1956, and the proposition passed as submitted pursuant to the ordinance.

While the record does not indicate fully what occurred thereafter, it does disclose that the requisite five members were appointed by the Mayor of Columbia to the Land Clearance For Redevelopment Authority and that they assumed the duties of the office.

It is the above mentioned Ordinance, No. 485, electing to accept the provisions of the Land Clearance For Redevelopment Authority Law, by deeming Columbia to be a defined “community” thereunder and ap-proving the exercise of powers thereunder by a Land Clearance For Redevelopment Authority, passed on April 23, 1956, and approved by the people at the special election of May 29, 1956, that plaintiffs on June 9, 1962, sought to have repealed •through the initiative process. Article XVII, Section 127, of the City Charter of Columbia provides for the initiative process, “(they) shall have power to propose any ordinance”, except one appropriating money or authorizing the levy of taxes.

The indicated cause of plaintiff’s action was that on May 2, 1962, an ordinance (No. 1788) was introduced providing for ■the undertaking of surveys and plans for an urban renewal project (Midtown Redevelopment Project) and authorizing the ■filing of an application with the United States government for an advance of funds 'therefor in the sum of $134,777.00 and providing for the submission of the completed plans and surveys to an election. There was opposition to the proposed Midtown Redevelopment Project by plaintiffs, .and others, who after being unsuccessful in efforts to prevent Ordinance No. 1788 from being enacted by the Council, on May .21, 1962, sought to invoke the referendum process to have it submitted to the people of Columbia in an election (although the ordinance itself provided for the submission of the completed plans and surveys to an election). The city council by a 4 to 1 vote refused to repeal Ordinance No. 1788 and voted that it not be referred to the ■people. Plaintiffs also prepared and circulated initiative petitions and obtained the requisite number of signatures (which petitions the city clerk certified to be proce■durally sufficient) proposing an ordinance which would repeal Ordinance No. 485. The city council voted to “ignore” the initiative petition. The following day plaintiffs filed the mentioned two lawsuits, numbered 45975 and 45976, respectively.

Plaintiffs’ points I, II and III (a) are in effect assertions that the determination of •■the Columbia City Clerk that the initiative petition is sufficient procedurally cannot be inquired into in a mandamus action, and that this court does not have the power to examine the proposed initiative ordinance to determine its legality or constitutionality. Appellants only remaining contention is that the initiative process may be used to repeal an existing ordinance, and that the council and the people of Columbia do have the power and authority to pass an ordinance repealing Ordinance No. 485.

Defendants concede they are not challenging the signatures on the initiative petition, the time of filing it, or any other procedural matter. It is their position that the courts do have the right in a mandamus suit to examine a law proposed to be submitted to the electorate by the initiative or referendum process and that the City of Columbia by reason of the adoption of Ordinance No. 485 in 1956 became a defined “Community” in which the Missouri General Assembly had created a public body corporate and politic known as the “Land Clearance For Redevelopment Authority” of Columbia, Missouri; that the statutes do not provide for a reconsideration of that determination by the community and that the city council and electors do not possess authority to reverse the previous determination. Defendants also contend the ordinance proposed by the initiative petition to be submitted to the electorate is administrative in nature and not legislative and is thereby not subject to be repealed by the initiative process.

It is the general rule that initiative and referendum provisions are applicable only to acts, including ordinances, which are legislative in character, and are not applicable to those dealing with administrative or executive matters. State ex rel. Whittington v. Strahm, En Banc, Mo.Sup., 374 S.W.2d 127; State ex rel. Wilkinson v. Edwards, En Banc, 305 Mo. 431, 266 S.W. 127, Annotation, 122 A.L.R. 769. Ordinarily, if the ordinance or act sought to be repealed is legislative in nature so is the repealing ordinance or act. State ex rel. Wilkinson v. Edwards, supra.

Some difficulty is occasionally experienced in applying the general rule. In State ex rel. Whittington v. Strahm, supra, our Supreme Court approvingly quoted 5 McQuillin, Municipal Corporations, 3rd Ed., #16.55, pp. 254-256: “In reference to what constitutes legislative and what administrative action in connection with restriction of the power of initiative or referendum to legislative matters it has been said that action relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of temporary and special character are regarded as administrative. * * * The test of what is a legislative and what is an administrative proposition * * * has further been said to be whether the proposition is one to make new law or to execute law already in existence. Again, it has been said: ‘The power to he exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature 'if it merely pursues a plan already adopted by the legislative body itself, Or some power superior to it.’ ” In ruling the ordinance which concerned fluoridation of the water of Kansas City to he legislative in nature Our Supreme Court stated, “This because it provided a new declaration of public policy for the permanent practice of fluoridation * * To the same general effect see, Carson v. Oxenhandler, Mo.App., 334 S.W.2d 394, holding that an ordinance authorizing St. Louis County to enter into a cooperative argument with the housing authority was a declaration of legislative policy and, hence, legislative in character.

We are persuaded that Ordinance No. 485 which was adopted by both the city council and the people of the City of Columbia is legislative in nature and not merely administrative or executive. It was an expression of the council and the people of the City of Columbia of their desire and decision-to elect to become a “community” under the state law and to adopt and to make the Land Clearance For Redevelopment Authority Law applicable to the City of Columbia. It was a new declaration of a fundamental public policy; namely, to have this state law establishing a land clearance and redevelopment situation include Columbia, Missouri.

The Land Qearance For Redevelopment Authority Law was before our Supreme Court En Banc in State on Information of Dalton v. Land Clearance For Redevelopment Authority, 364 Mo. 974, 270 S.W.2d 44. In holding that the law was constitutional the court stated, loe. cit. 270 S.W.2d 56, “We conclude that the powers of the Authority, as defined in the Act, including the power to prepare plans, to carry out these plans after they have received the approval of the governing body, and to determine the fair price at which land within legislatively declared blighted or insanitary areas may be sold are administrative details and were properly delegated to Authority as an administrative agency of the governing body.” We believe this language of our Supreme Court further indicates the legislative nature of such an ordinance as Ordinance No. 485 now before us which makes the initial and basic-political determination to come under the provisions of the Redevelopment Authority Law rather than provide for carrying out the details of some prior enacted plan. Cf. Andrews v. City of San Bernardino, 175-Cal.App.2d 459, 346 P.2d 457, 459; Housing Authority v. Superior Court, 35 Cal.2d 550, 219 P.2d 457.

We pass to plaintiffs’ contention-that this court in a mandamus action cannot examine an ordinance proposed under the initiative process to determine its legality, i. e. whether it is unlawful. As. noted in the State ex rel. Whittington v. Strahm decision, supra, and many others,, courts can and do look at the ordinance in-, question to ascertain if it is truly legislative in nature rather than administrative or executive. In Kansas City v. McGee, 364 Mo. 896, 269 S.W.2d 662, 665, in approving the case of State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891, 81 A.L.R. 1066, our Supreme Court stated: “The court (in the Cranfill case) held mandamus to be a discretionary writ and in that case would not be issued to compel a large expenditure of money to hold a useless election. The ruling in the case is sound law and supported by good authority.”

In State ex rel. Cranfill v. Smith, En Banc, 330 Mo. 252, 48 S.W.2d 891, 892, 81 A.L.R. 1066, in an original mandamus proceeding for the adoption of an ordinance under the initiative provisions of the Charter of Kansas City seeking to compel the members of the city council to submit an ordinance to the electors of the city the court stated, “In determining whether the writ should be granted or denied, we need not decide whether the provision in the city’s charter for the submission of a proposed ordinance to the electors is mandatory or merely directory, nor are we controlled by the general rule that courts will not inquire into the validity of an act of legislation until after it' has become fait accompli and is clothed with the outward forms of law. Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. Before granting the writ the court will look to the public interest which may be concerned, and act in view of all the existing facts and with due regard to the consequences. And the writ will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act. Ferris on Extraordinary Legal Remedies, §§ 196 and 204. In the recent case of State ex rel. Asotsky v. Regan, 317 Mo. loc. cit. 1221, 298 S.W. 747, loc. cit. 748, 55 A.L.R. 773, we said: Tf the ordinance were in fact unconstitutional, or was void for any other reason, that would be a complete defense to this action. We would not impose upon Kansas City the burden and expense of submitting to a vote an ordinance which would be of no effect if adopted.’ ”

Plaintiffs cite several decisions such as State ex rel. Sharpe v. Hitt, Auditor, 155 Ohio St. 529, 99 N.E.2d 659, to the general effect that the people of a municipality can, through the initiative, enact a measure conflicting with legislation previously passed by the council even though they thereby nullify the earlier action of the council. In the Sharpe case after so stating, that court qualified by saying, loc. cit. 664 of 99 N.E.2d: “[S]o long as the question upon which they enact such an initiative ordinance is within the power of the municipality to control by legislative procedure.” Thus, if the city council could not effectively free itself of the state statute by the proposed initiative ordinance because it was not within the power of the municipality to do so we do not believe that the court in the Sharpe case would grant mandamus the effect of which would be to force a useless and costly election. See, Housing Authority v. City of Los Angeles, 38 Cal.2d 853, 243 P.2d 515; State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773 ; 6 McQuillin, Mun. Corp., (3rd Ed.) #21.10.

We come to the crucial question. Can this election of the City of Columbia made in 1956 both by ordinance and by vote of its people to accept and thereby come under the provisions of this state law by becoming a ‘ “community” as defined '-herein now be revoked or cancelled by the revocation of Ordinance No. 485 by means of the pending initiative proceedings ? If not, then its revocation would serve no purpose of indicated interest to plaintiffs and mandamus, a discretionary writ, should be denied.

By the enactment of Sections 99.300 to 99.660, RSMo 1959, V.A.M.S., the General Assembly declared the existence in localities throughout the state of blighted and insanitary areas constituting a serious and growing menace to the public health, safety, morals and welfare of the residents of this state. In the state public interest it declared the necessity for the provisions contained in the Land Qearance For Redevelopment Law and made them automatically applicable to all cities of more than 75,000 population. Cities with less than 75,000 population were given the opportunity (option) of deciding whether or not they desired to accept the provisions of this law. Columbia, by becoming a “community” thereunder both by action of its city council and by vote of its people accepted this law and thereby became subject to it just as is any city with a population of over 75,000. It is not a question of the people of the community not being given a voice, for it was the people by their vote who recognized that in their community there exists one or more of these blighted and insanitary areas and approved the exercise of powers by the Authority under the provisions of the state statute.

Having become subject to this state statute how can this, or any municipality subject to it, become free of it? The law was not enacted to effect solely municipal objectives. These were state purposes to be fulfilled by this statute. It is our view that just as with other state laws, it remains applicable to a municipality which h'as accepted it until the legislature repeals it or unless or until this statute or another properly enacted statute authorizes a municipality to withdraw or provides a means for a municipality to withdraw from its applicability. We do not believe it was the intent of the state legislature in enacting the statute in the light of a state need to permit a municipality which has found the local need for it, solely by municipal action to be able to withdraw itself from the provisions of that statute established to cure or better those very conditions causing the need. Cf. State ex rel. Great Falls Housing Authority v. City of Great Falls, 100 Mont. 318, 100 P.2d 915.

One purpose of the initiative ordinance was to abolish the existing Land Qearance For Redevelopment Authority of Columbia. The statute before us does not provide a prescribed manner for dissolving this public corporation thusly created, once empowered to exercise the power set out in the state statute, regardless of the size of the city or county in which it was created. Created as it was, by the State Legislature, and designed to carry out a declared public policy of the legislature, it would seem to be the intent of the statute that this public corporation would not be dissolved except at such time and in such manner as its creator, the State Legislature, shall determine and provide. See, Western National Bank of Cicero v. Village of Kildeer, 19 Ill.2d 342, 167 N.E.2d 169 (5-6); State ex rel. Consolidated School District No. 8 of Pemiscot County v. Smith, 343 Mo. 288, 121 S.W.2d 160 (2); Ciulla v. State, 191 Misc. 528, 77 N.Y.S.2d 545, 553.

For the reasons set out above the appeal in case No. 45975 is dismissed. The judgment of the trial court in Case No. 45976 is affirmed.

All concur.

      . While this appeal was pending John F. Longwell, Richard Knipp and Dorsey Bass were substituted as parties .plaintiff in lieu of Robert C. Smith, Carl L. Brady and Roy (3. Wiley, having replaced the-latter three as new councilmen of Columbia, Missouri.


text:
    Pearl BRINKOETTER, Appellant, v. PYRAMID LIFE INSURANCE CO., Respondent.
    No. 23999.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Rogers, Field & Gentry, Robert L. Shir-key, Kansas City, for appellant.
    Caldwell, Blackwell, Sanders & Matheny, Kansas City, for respondent.
   HUNTER, Judge.

This is a suit brought in the Circuit Court of Jackson County by Pearl Brinkoetter, plaintiff-appellant, against Pyramid Life Insurance Company, defendant-respondent, for certain hospital and medical expenses claimed to be covered by a “Health and Accident” insurance policy. Plaintiff obtained a jury verdict and judgment in the sum of $560.00. The trial court set this judgment aside and entered judgment for defendant. F'laintiff has appealed.

The decisive question before us is whether the trial court erred in holding that plaintiff had not made a submissible jury case and in entering judgment for defendant. It is our general duty to review the pertinent evidence in the light most favorable to plaintiff and to give her the benefit of every inference reasonably deductible therefrom. Plaintiff is, of course, bound by her own testimony. Tomlin v. Alford, Mo.Sup., 351 S.W.2d 705(3).

Plaintiff previously had a “Health and Accident” insurance policy with the defendant which she had allowed to lapse. Shortly after this policy had lapsed plaintiff became ill and was hospitalized on July 10, 1960 for approximately ten days. We quote her testimony concerning her hospitalization: ' * * they took x-rays, they told me I had ulcers * * * gave me medication and some more, a series of x-rays.” She was then released thinking she was all right, but did go back a month later for more tests which she stated reassured her she was all right.

On October 7, 1960, after an agent of defendant had solicited her, she made an application for a new policy with defendant. The application form for the policy contained, among others, these questions and her answers: “6. Are you * * * now in good health and free from any physical or mental defect? Yes. 8. Have you * * * ever had any disease of the heart, lungs, kidneys, stomach, or bladder * * * ? No. 9. Have you, or any member of the Family Group to be insured, received medical or surgical advice or treatment within the past three years? Yes. If answer is ‘yes’, give details below: * * * Check files on H-14 lapse & # FR-158580. In 100% good health. * * * Do you represent these answers to be true and complete to. the best of your knowledge and belief? Yes.” After talking with plaintiff, the insurance agent had filled in these answers based on what she told him. The portion, “Check files on H-14 lapse & * FR-158580” was later added to the application by defendant’s agent. Nothing in that file in any way referred to ulcers or to any stomach illness or disease.

Plaintiff’s version of the occurrence is: “Q. Well, did you read the application before you signed it? A. Yes, I believe I did. Q. All right. And you knew the answers that were made, isn’t that correct? A. That is right. * * * Q. (Reading): ‘Have you or any member of your family group to be insure4 ever had any disease of the heart, lungs, kidneys, stomach, or bladder * * * ?’ Did you answer that question‘No.’? * * * I told him I never had no disease, of any kind, and none of the family didn’t. Q. You told him that you had never had any disease of the stomach, is that correct? A. That is right, I didn’t have no disease of the stomach”.

Plaintiff explained by saying that although her ulcers were located in her stomach she did not understand that having ulcers was a disease. “Well, sir, what I call a disease, is cancer or something like that. Q. I see. A. And that is what he asked me, and I said I had no disease. * * * Q. You never told this agent that you had been in the hospital just back in the previous July, for ulcers, had you? * * * A. I didn’t tell him because he didn’t ask me.” Thereafter, on October 7, 1960, the policy which is the subject of this suit was issued to plaintiff.

Plaintiff acknowledged that between July of 1960 and January of 1961 she had “a slight pain in the stomach” and was taking x-rays to see if she had a recurrence. In January, 1961, she reentered the hospital for a stomach operation for stomach ulcers that she had, and approximately two-thirds of her stomach was removed for that cause. Her resultant hospital and medical expenses totaled at least $560.00.

Defendant refused to pay her hospital and medical bill on the ground the mentioned answers in the application for insurance were deliberately a false misrepresentation of a material matter upon which defendant had relied in issuing its policy.

In accordance with the view we have taken of the case it is unnecessary to state defendant’s evidence which, in the main, was to the same general effect as that given above by plaintiff. Defendant did adduce evidence that it relied on plaintiff’s quoted answers to its detriment, and would not have issued the policy without an exception of this disease if plaintiff had given true answers to the questions.

The health of an applicant for insurance upon his health is of vital importance to the insurer, and questions to elicit pertinent information on the subject in regard to what disease the applicant has or has had are proper to be asked and should be truthfully answered. Good faith on the part of both the insurer and the applicant is called for.

The pertinent general rule is that an intentional material misrepresentation made by an applicant for insurance for the purpose of obtaining the insurance in reliance upon which a policy is issued to him, renders the policy voidable. Dixon v. Business Men’s Assurance Co. of America, 365 Mo. 580, 285 S.W.2d 619, 625; Haman v. Pyramid Life Insurance Co., Mo.App., 347 S.W.2d 449, 454 ; 45 C.J.S. Insurance § 595 d(2), page 401. In accordance with the general rule an intentional or willful misrepresentation as to the existence of disease which is material to the risk will defeat recovery on the policy. 45 C.J.S. Insurance §§ 602, 663, pages 422, 585; Annotation, 96 A.L.R. 430.

In line with the general rule, a misrepresentation is deemed material where it is reasonably calculated to affect the action and conduct of the company in deciding whether or not to accept the risk by issuing its policy covering the risk. Trivial and temporary indispositions which do not af■fect the general health are ordinarily deemed not material.

In the instant case plaintiff has candidly admitted that she told the insurance agent she had never had any disease of the stomach, whereas in truth and fact less than three months earlier she had been hospitalized ten days for ulcer of the stomach, which diagnosis she fully knew, and, further, for which condition she continued to experience some pain and continued to have examinations.

Plaintiff attempts to justify answering “no” to the question whether she had ever had any disease of the stomach by saying she did not understand that having ulcers of the stomach is a disease of the stomach. Her attempted justification is wholly unreasonable and unacceptable.

We are of the view that the average person giving to the word “disease” its generally understood and ordinary meaning, upon reading it in an accident and health policy application, such as here, would understand it to include an ulcer located in the stomach. We are supported in our view in that the dictionary definitions of the word “disease” are quite broad and include within its meaning an ulcerous condition of the stomach. From Marie v. Standard Steel Works, Mo.Sup., 319 S.W.2d 871, 877: “Dorland’s Medical Dictionary, 23d Edition, p. 393, defines ‘disease’ as follows: ‘A definite morbid process having a characteristic train of symptoms; it may affect the whole body or any of its parts, and its etiology, pathology, and prognosis may be known or unknown’.” From Webster’s Third New International Dictionary (Unabridged) : “Disease — an impairment of the normal components that interrupts or modifies the performances of the vital functions, being a response to environmental factors * * * to specific infective agents * * * to inherent defects of the organism * * * or to combinations of these factors: Sickness, Illness.” From Downey v. Kansas City Gas Co., Mo.App., 79 S.W.2d 1063, 1074, quoting from Black’s Law Dictionary (3d Ed.) 588: “Disease is a deviation from the healthy or normal condition of any of the functions or tissues of the body; an alteration of the state of the body or of some of its organs, interrupting or disturbing the performance of vital functions, and causing or threatening pain and weakness.” And see, Welte v. Metropolitan Life Ins. Co., 305 Ill.App. 120, 27 N.E. 2d 63, holding that a duodenal ulcer is a disease of the body.

It must have been obvious to plaintiff by the questions inserted in the application that defendant was seeking information hearing on the risk which it was being asked to take, including the information that plaintiff very recently had had ulcers in the stomach requiring substantial hospitalization and treatment. Anything as serious as ulcers in the stomach necessitating ten days hospitalization could not reasonably he considered as minor or not of real interest to defendant in considering whether to issue its health policy covering within its general terms medical and hospital expenses resulting from ulcers in the stomach.

Based on plaintiff’s own testimony she did intentionally make a material misrepresentation when she stated in her written application for insurance that she had never had any disease of the stomach. It is not controverted that the insurance company relied on that statement in issuing the policy. Under such circumstances the trial court did not err in ruling that plaintiff had not made a submissible case and in setting aside the jury verdict and entering judgment for defendant.

Plaintiff also sought in this action an allowance of attorney’s fees for vexatious refusal of defendant to pay plaintiff’s claim. Since plaintiff had no valid claim it is axiomatic that the trial court did not err in refusing to permit the jury to consider making an attorney’s fee allowance for vexatious refusal to pay.

The judgment is affirmed.

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Louis A. SCHMIDT, Plaintiff-Respondent, v. ADAMS & SONS GROCER COMPANY and Western Casualty and Surety Company, Insurers, Defendants-Appellants.
    No. 23939.
    Kansas City Court of Appeals. Missouri.
    April 6, 1964.

      Nolan Chapman, Jr., Chapman & Chapman, Chillicothe, for appellants.
    R. Leroy Miller, Trenton, for respondent.
   SPERRY, Commissioner.

This is an appeal from the judgment of the Circuit Court reversing an award of the Industrial Commission of Missouri in favor of employer and insurer and against claimant, and entering judgment for claimant in the sum of $9,075.00, as compensation for injuries received by him.

Plaintiff, Louis A. Schmidt, was employed by Adams & Sons Grocer Company. He was injured by lightning, while in the course of his employment, and filed claim therefor with the Commission. A hearing was held before a referee who found that the injury arose out of and in the course of his employment, and awarded plaintiff the sum of $9,075.00.

Upon review by the full Commission the award was for the employer and against plaintiff herein. Plaintiff appealed to the Circuit Court where the award of the full Commission was reversed and judgment was entered for plaintiff in the sum of $9,-075.00. This appeal followed.

Plaintiff was in the employ of defendant as a truck driver. His duties consisted of operating a truck, loading and unloading merchandise from trucks and railroad cars, and of delivering merchandise for his employer, who was engaged in the wholesale grocery business. While engaged in his duties he wa% seriously injured by lightning. The referee found from the evidence adduced at the hearing that plaintiff’s injuries arose “out of and in the course of” his employment. The full Commission found that plaintiff “was injured by either a direct stroke of lightning or an induced current on July 14th, 1958; that said accidental injuries arose in the course of his employment * * * but that the same did not arise out of said employment.” (Emphasis ours.)

The law governing our review is stated in Gennari v. Norwood Hills Corp., Mo., 322 S.W.2d 718, 724:

“Our review is limited to a determination of whether the findings of the Industrial Commission are supported by competent and substantial evidence upon the whole record and we are not at liberty to substitute our judgment for that of the administrative tribunal unless the findings are clearly contrary to the overwhelming weight of the evidence. Lake v. Midwest Packing Co., Mo., 301 S.W.2d 834, 835(3) ; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649.” (Emphasis ours.)

The facts are not in dispute. Plaintiff testified to the effect that he was instructed by his employer to go out-side of the warehouse, at the east door, and load some groceries; that it was raining; that his clothing was wet; that the ground where he stood was wet; that defendant’s all metal truck was backed up to the loading platform; that there was also an automobile backed up to the platform, on the south side of the truck; that the merchandise was not yet being handed out of the door for loading; that he had his left hand against the building, about three feet from the light switch; that he put his other hand on the truck to look out over the tail gate, to see if the merchandise was about to arrive; that this was the last he remembered.

He stated that the building was wet; that the electric wiring came into the warehouse right above the switch box over the door from which merchandise was to be carried to the loading platform; that the wiring came in through the roof of the building, from the east; that the electrical wiring was not grounded.

Mr. Reeter gave testimony to the effect that, when the accident occurred, he heard thunder and saw lightning; that, immediately thereafter, he heard a sizzling sound at the south side of the door; that there were others in front of the building, in addition to plaintiff; that, immediately after the thunder and lightning occurred he looked out and saw plaintiff staggering around sidewise, holding his arm; that he was in pain; that witness assisted him to sit down; that he was helped to a car and was taken to a doctor immediately thereafter.

Mr. Thorpe stated that he was an employee of defendant and was present, within a few feet of the door, when plaintiff was injured; that there was a rain storm and much lightning; that, immediately thereafter, plaintiff was in a dazed condition; that he took him to a doctor; that there are no more wires near the east door of the warehouse than there are at other places in the vicinity; that a ball of fire went “right up the truck” after the lightning flashed and the thunder sounded.

Dr. Whitehead, Ph. D., professor of Electrical Engineering and Registered Professional Engineer, Illinois Institute of Technology, qualified as an expert in the field of Electrical Engineering. He stated that he had had experience with electricity and lightning; that lightning is, simply, electricity. He was asked a hypothetical question based upon the facts in evidence as to the circumstance under which plaintiff was-injured by lightning. Answering, he stated that, based on the facts and circumstances,, plaintiff could have been struck directly,, that the truck may have been struck, or that the building may have been struck; that the latter was more probable because-of the height of the building; that a portion of the electricity could have been conducted into plaintiff’s hand through the wet concrete blocks of the building. He stated that, if the electricity came through the-building, he thought it was not more likely to come through that building than through-any other building in Chillicothe of similar height; that plaintiff was no more likely to have been struck through the truck than-by reason of any other metal truck. He stated that, in the circumstances here shown, he could think of no reason why plaintiff’s employment had anything to do-with the accident.

If the evidence in a case of this kind is undisputed and uncontradicted, and if but one inference can be drawn from it, the question presented is one of law. But where the evidence is conflicting or where different inferences may reasonably be drawn therefrom, both the weight of the evidence and the credibility of the witnesses are for the Commission to determine. O’Neil v. Fred Evans Motor Sales Co., Mo. App., 160 S.W.2d 775, 779.

In this case, the burden of proving that his injuries arose out of his employment rested on plaintiff. Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 806. It is. not enough that plaintiff was injured while he was regularly employed. He was injured by an act of God; and, unless he was,, by reason of his employment, exposed to-the risk of being struck by lightning to a greater degree than was the public generally, in the same vicinity, he can not have Workmen’s Compensation for his injuries. Williams v. Great Atlantic & Pacific Tea Company, Mo.App., 332 S.W.2d 296, 298.

It is not shown how the electric ■current reached him. There is no evidence , -tending to prove that plaintiff was exposed to greater danger of being injured by lightning than others in the general area where •he was employed.

The judgment is reversed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


author: BROADDUS, Presiding Judge.

text:
    MID-CONTINENT STORES, INC., a Corporation, Appellant, v. CENTRAL SURETY AND INSURANCE CORPORATION, a Corporation, Respondent.
    No. 23952.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.
    Sheffrey, Ryder & Skeer, David Skeer, Kansas City, for appellant.
    Achtenberg, Sandler & Balkm, Bernard L. Balkin, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action upon a fidelity bond. The trial court entered its order sustaining defendant’s motion for summary judgment and plaintiff appealed.

Plaintiff is the owner and operator of merchantile stores. On October IS, 1956, defendant delivered to plaintiff its “Blanket Position Bond.” Said bond was in full force and effect at all times relevant to the matter here in controversy. The bond insured plaintiff against loss due to any fraudulent or dishonest acts of its employees. Plaintiff’s petition alleged that by reason of the fraudulent acts of one of its store managers it sustained a loss in the amount of $6100.

The deductible amount of the bond was $500. Plaintiff admitted in the trial court and likewise concedes in its brief here that it cannot prove an amount of loss in excess of $500 otherwise than by means Of an inventory computation.

The pertinent part of the bo'nd is as follows :

“Insuring agreement. The underwriter, in consideration of the payment of the premium and subject to the declarations made a part hereof, the general agreements, conditions and limitations and other terms of this bond, agrees to indemnify the insured against any loss of money or other property which the insured shall sustain through any fraudulent or dishonest act or acts committed by any of the employees acting alone or in collusion with others, the amount of indemnity on each of such employees being the amount stated in item 3 of the declarations.
“Limit of Liability, $5000.00
“Exclusion, Section 2. This bond does not apply to loss, or to that part of any loss, as the case may be, the proof of which, either as to its factual existence or as to its amount, is dependent upon an inventory computation or a profit and loss computation; provided, however, that this paragraph shall not apply to loss of money or other property which the insured can prove, through evidence wholly apart from such computations, is sustained by the insured through any fraudulent or dishonest act or acts committed by any one or more of the employees.”

Defendant’s brief discloses that experts in the field of inventory and stock shortages in retail trade have consistently held that it is impossible to claim that an inventory shortage establishes an actual loss of goods or merchandise or that the shortage, if actual, was due to dishonesty of employees. As a result, the language contained in the present bond was adopted by fidelity insurers.

The language of the bond is clear and unambiguous. The above quoted section 2 specifically excludes from coverage any loss the proof of which, either as to its factual existence or as to its amount, is dependent on inventory computation or profit and loss computation. As we have stated, plaintiff admits that it cannot prove' a loss in excess of $500 other than by means of an inventory computation.

Our courts have consistently held that the parties have a right to contract for such limitations or conditions of liability as may be agreed upon and an insurance contract containing no ambiguity of language cannot be construed to afford coverage where coverage does not exist by the terms of the policy. Central Surety and Insurance Corporation v. New Amsterdam Casualty Co., 359 Mo. 430, 222 S. W.2d 76; State Mutual Life Assurance Co. v. Dischinger, 263 S.W.2d 394, Mo.Sup; In a comparatively recent pronouncement on this issue, our Supreme Court in the case of State ex rel. Prudential Insurance Company of America v. Bland, et al., 353 Mo. 956, 185 S.W.2d 654, 656, has stated:

* * * if the bond by its terms is unambiguous, then respondent’s opinion in construing the bond and giving it a different construction from its plain meaning conflicts with our rulings where we held that the words and phrases in all documents must be given their plain, ordinary, and usual meanings. Worthington Drainage District v. Township of Elm, Putman County, 339 Mo. 270, 96 S.W.2d 374; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262. Where there is no ambiguity, there is no room for construction. Unequivocal language in a written document must be given its plain, ordinary, and usual meaning. State ex rel. Prudential Insurance Company of America v. Shain et al., 344 Mo. 623, 127 S.W.2d 675.”

The judgment is affirmed.

All concur.


text:
    McKESSON AND ROBBINS, INC., Plaintiff-Respondent, v. John G. OESTERLE et al., Defendant-Appellant.
    No. 23794.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964.
    George M. Hare, James L. Gillham, Independence, for appellant.
    Sam D. Parker, Joseph E. Stevens, Jr., Lathrop, Rightcr, Gordon & Parker, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, McKesson and Robbins, Inc., sued defendants, John G. Oesterle, Dean Henderson and Ronald Freemeyer. The purpose of the suit was to establish the priority of plaintiff’s mortgage lien, executed by Oesterle, over two mortgage liens on the same property, executed by Oesterle and held by Freemeyer and Henderson, respectively. Judgment was for plaintiff, decreeing that its lien was valid and superior to the liens held and asserted by Freemeyer and Henderson, ordering the property sold and the proceeds, above costs, applied first, to retire the plaintiff’s claim in the total amount of $5961.25; then to payment of the Freemeyer claim, in the amount of $2250.00; then to payment of the Henderson claim in the amount of $3900.00. Any remaining balance was to be paid to Oesterle. From this judgment defendant Freemeyer, alone appeals.

Defendant Oesterle purchased certain drug store fixtures from plaintiff. On November 17th, 1959, plaintiff’s sales department reported that installation was com-píete. However, it was later learned that this was not correct. Further credit was extended, the last item furnished being in the amount of $49.50, on December 24th, 1959. On January 4th, 1960, Oesterle executed a chattel mortgage to plaintiff pledging the items purchased as security for the remaining balance of the purchase price. This mortgage was filed in the Jackson County Recorder’s office on January 15th 1960, by plaintiff’s agent, who did not search the records to ascertain if other mortgages constituted prior liens.

On December 12th, 1959, defendant Freemeyer loaned Oesterle $2250.00 in cash and advanced premium money for insurance. This loan was evidenced by a note-in the amount of $2250.00 and secured by a chattel mortgage covering the same • property described in plaintiff’s mortgage. It was filed in the office of the Recorder of Deeds on January 8th, 1960. Freemeyer stated that he did not know at the time the loan was made, that Oesterle did not have the money to pay the balance of the purchase price of the merchandise purchased from plaintiff although he knew that a part of this loan would be used to make a down payment thereon.

On March 10th, 1960, Oesterle executed a note payable to defendant Henderson, his father-in-law, secured by a chattel mortgage on the merchandise sold by plaintiff. This mortgage was filed March 11th, 1960. Henderson did not appeal from this judgment.

Oesterle was, eventually, declared a bankrupt and the trustee in bankruptcy abandoned the property herein to the mortgage holders.

Plaintiff contends, among other things, that Freemeyer’s mortgage is usurious and void. The defense was not pleaded but some evidence was adduced thereon. The trial Court heard the evidence and, in effect, ruled adversely to this contention by declaring the mortgage a valid lien prior to that of Henderson. It does not appear that such ruling is clearly erroneous. It is-supported by substantial evidence. Usury is not to be presumed. It must be clearly proved and the burden of establishing it is-on the plaintiff. Anderson v. Curls (Mo.. App.) 309 S.W.2d 692, 696. Freemeyer’s testimony was that the note secured by the-chattel was for money and for insurance premiums. There was no evidence as to the amount of insurance premiums charged and included in the note. Plaintiff failed to carry the burden of proof required of it,, because the evidence was unclear as to the-exact amount of interest that was charged.

In this action plaintiff sought to have-its mortgage declared to be a prior lien to that of Freemeyer and Henderson. It rests its right to such relief on Section 443.-460, V.A.M.S., as amended in 1959. The pertinent portion of that section is as follows:

“No mortgage or deed of trust of personal -property hereafter shall be valid against any creditors who acquire cu Hen by judicial proceedings, or subsequent purchasers, mortgagees, encum-brancers and pledgees on such personal property, unless possession of the mortgaged or trust property be de-' livered to and retained by the mortgagee or trustee or cestui que trust, or unless the mortgage or deed of trust he acknowledged or proved and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of land are by law recorded, or unless the mortgage or deed of trust, or a true copy thereof, shall he filed in the office of the recorder of deeds of the county where the mortgagor or grantor executing the same resides * * *

The Freemeyer instruments were executed on December 12th, 1959, but the mortgage was not filed in the office of the Recorder of Deeds until January 8th, 1960. On December 24th, 1959, plaintiff extended its last credit to Oesterle and, on January 4th, 1960, took a note and chattel mortgage covering the entire balance of Oesterle’s indebtedness to it. This mortgage was filed on January 15th, 1960.

The record does not disclose any agreement between plaintiff and Oesterle as to how, when, or in what manner the balance due plaintiff, over and above $2500.00 paid prior to delivery, was to be paid. Nor does the record disclose the value of the goods delivered prior to November 17th. It does disclose that some merchandise was ■delivered after November 17th, the last item being delivered on December 24th, 1959. On January 4th, 1960, the balance •due was agreed on and a chattel mortgage ■and note was executed therefor.

The Court, in In re Bothe, 8 Cir., 173 F. 597, 600, in speaking of this section of ■our statutes, reviewed the cases thereon and reiterated its previous ruling made in First National Bank v. Connett, 8 Cir., 142 F. 33, 5 L.R.A.,N.S., 148. The Court said:

“The sweeping character of its provisions at once attracts attention. Under this statute it has been held that where possession is not taken an unrecorded chattel mortgage is fraudulent and void in law as to every one, excepting trespassers, parties to the instrument, and general creditors whose ■demands arose prior to the time it was given; nor as to such prior creditors is it valid if by proceedings in court or otherwise they have secured a lien upon the property before it is recorded.”

The Court further said:

“Until the mortgage was recorded it was absolutely void as to these special (prior) creditors. Their (prior creditors) superior rights arose against the property of their debtor while the mortgage was thus void, and to hold that such rights were lost before they had an opportunity to assert them, before they even knew of the existence of the mortgage, is a palpable absurdity.
* * * Such creditors (prior) who parted with nothing on the faith of their debtor’s ostensible ownership of unincumbered property, are required to take some steps to fix a lien upon tlie mortgaged property prior to the recording of the mortgage in order to secure equitable standing. Until then they have no equitable right or claim enforceable in a court of equity”.

In this case, plaintiff was a prior creditor, at least as to probably a major portion of its claim. Under the above ruling, it had no equitable rights as to this portion of its claim enforceable in Court until and unless it took some steps to fix a lien on the property prior to the recording of the Freemeyer mortgage. It took a note and a mortgage before the Freemeyer mortgage was filed. If it had filed its mortgage for record prior to January 8th, 1960, it would have thereby acquired an enforceable prior lien. However, plaintiff’s mortgage was void as to Freemeyer until it was recorded, which was not until January 15th, eleven (11) days after it was taken and three (3) days after the Freemeyer mortgage was recorded. In re Bothe, supra.

A mortgage filed within a reasonable time after its execution relates back to the date of execution. What is a reasonable time depends on the circumstances of each particular case. All of the parties in this case resided in Jackson County. No explanation appears in evidence for the delay in filing by plaintiff and Freemeyer. It is sufficient to say that a delay of eleven (11) days by plaintiff, under the circumstances shown, was an unreasonable time. In re Billings, D.C., 170 F.Supp. 253, 256. The mortgage became effective on January 15th, after Free-meyer’s mortgage was validated.

The judgment is reversed and the cause is remanded with directions to determine the amount of plaintiff’s claim that accrued by way of goods furnished to Oesterle after December 12th, 1959, and decree a lien in said amount in favor of plaintiff as being prior to the lien of Freemeyer; next, to decree a lien in favor of Free-meyer for the full amount due him; next, decree a lien in favor of plaintiff for all sums due him for goods furnished Oesterle prior to December 12th, 1959; and, lastly to decree a lien, subject to the above, in favor of Henderson; and to make such other orders and ’ judgments as may be' proper in the circumstances.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: ALEX P. HUMPHREY, Special Commissioner.

text:
    The AETNA CASUALTY & SURETY COMPANY OF HARTFORD, CONNECTICUT, Appellant, v. Florence MARTIN, Administratrix of the Estate of Maynard Martin, deceased, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.
    Rehearing Denied May 1, 1964.
    J. Woodford Howard, Howard, Francis & Howard, Prestonsburg, for appellant.
    Cordell Martin, Hindman, D. G. Boleyn, Hazard, Hollie B. Conley, Prestonsburg, for appellees.
   ALEX P. HUMPHREY, Special Commissioner.

Appellee Florence Martin, Administra-trix, recovered judgment in the Knott Circuit Court for $21,500 against appellee Troy Mullins for damages on account of the death of her decedent occasioned by an automobile accident. Troy Mullins carried a liability policy with the appellant, Aetna Casualty & Surety Company, which was in force at the time of the accident. Following the issuance of an execution on the judgment and its return unsatisfied, this action was instituted by the administratrix as a beneficiary tinder the policy against the appellant and against the appellee, Mullins, by way of a bill of discovery. Mullins has cross-claimed against the appellant for the amount of judgment against him and also for recovery of his attorney’s fee and costs in defending the wrongful death action. The instant case was submitted to the court on the pleadings and depositions taken, and judgment was entered against the appellant upon the findings and conclusions.

The accident happened on August 16, 1958. Suit was filed by the administratrix on August 30th, and summons was issued and served on Mullins on September 4th. No notice of the accident or the execution of the summons was given the appellant until November 6th following, at which time appellant disclaimed any liability under the policy because of the breach by Mullins of the conditions of the policy to give notice to the company of the accident “as soon as practicable” and in addition, to “immediately forward to the Company” process issued upon the complaint against the insured. Answer in the original suit was filed by Mullins on his own in mid-November, the first deposition was taken on December 11th, and tire action did not come to trial until the September, 1959, term of court. The defense to the claim of the administratrix was vigorously pursued by Mullins to its conclusion.

Mullins was a policeman employed by the trustees of the town of Wayland in Floyd County. The decedent met his death while driving an automobile being pursued by Mullins into Knott County. Mullins’ defense to appellant’s position of no liability under the policy because of failure to report the accident was that he had not come into collision with the automobile of the deceased but was 600 feet behind when it ran off the road. He therefore assumed no claim could arise.

The complaint of the administratrix subsequently filed, however, alleged that Mullins operated his automobile in such a negligent manner as to run it into the car being driven by the deceased, causing his death. The suit was filed in Hindman in Knott County, and summons was served on Mullins in Wayland, sixteen miles away. Mullins made no effort to investigate the nature of the suit, assuming that his liability insurer would tend to it, until early November when he sent his assistant to Hindman to find out what was being done. Whether as a result of the information received by Mullins from the assistant, or advice from the town trustees who also had become aware of the pending claim, Mullins informed appellant’s local agent on November 6th of the accident and the resulting lawsuit. Shortly thereafter Mullins was told by the agent and by appellant’s local counsel that the appellant would do nothing in the matter.

Appellees argue here that the notice given within sixty-four days after the service of the summons was timely. They contend that the burden is upon the appellant to show prejudice to it by the failure of this notice.

It is settled that a breach of a condition subsequent in a liability insurance policy of the kind involved here is a valid defense to an action under the policy. Jefferson Realty Co. v. Employers’ Liability Assur. Corp., 149 Ky. 741, 149 S.W. 1011; Sun Indemnity Co. v. Dulaney, 264 Ky. 112, 89 S.W.2d 307; Travelers Ins. Co. v. Boyd, 312 Ky. 527, 228 S.W.2d 421.

There is some difficulty in holding as a matter of law that Mullins’ failure to notify the appellant of the accident between the time of its occurrence and the time of the receipt by him of the summons in the consequent lawsuit constituted a breach of the policy condition. An insured has some latitude in informing or not informing liability insurers where he is doubtful that a claim will arise. Southern Surety Co. of New York v. Heyburn, 234 Ky. 739, 29 S.W.2d 6.

There is, however, no question that as a matter of law there was a breach of the condition in the policy by Mullins in waiting more than sixty days before forwarding the process to the appellant. The term “immediately forward” means within a reasonable time. Southern Surety Co. v. Heyburn, supra. Mullins’ failure was due simply to his lack of interest in promptly informing himself of the nature of the claim against him and his unwarranted assumption that the appellant would protect him and itself without action on his part. The inquiry into whether or not there was prejudice to the appellant occasioned by this unreasonable delay is not germane; prejudice to the insurer is presumed. Jefferson Realty Co. v. Employers’ Liability Assur. Corp., supra.

It is, therefore, our opinion that there is no liability of the appellant under its contract of insurance to either the appel-lee Mullins as a party to the contract, or to the estate of the appellee administratrix, since the beneficiary is in no better position than the contracting party through whom the claim is derived. Travelers Ins. Co. v. Boyd, supra.

It is recommended that the judgment be reversed, with directions to enter judgment for the appellant.

The opinion is approved by the court and the judgment reversed with directions to enter judgment for the appellant.

      . “CONDITIONS
      “1. NOTICE OE ACCIDENT. When an accident occurs written notice shall be given by or on behalf of the Insured to the Company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the Insured and also reasonably obtainable information respecting the time, place and cir-eumstanees of the accident, the names and addresses of the injured and of available witnesses.
      “2. NOTICE OF CLAIM OR SUIT. If claim is made or suit is brought against the Insured, the Insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.”


author: JOHN J. WINN, Special Commissioner.

text:
    Bradley GIBSON, Appellant, v. Ronald Wayne DUPIN et al., Appellee.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    Rehearing Denied May 1, 1964.

      Hatcher & Lewis, Elizabethtown, for appellant.
    William A. Miller, Miller & Howard, Louisville, for appellee.
   JOHN J. WINN, Special Commissioner.

This suit was brought by Bradley Gibson against Ronald Wayne Dupin and McKinley Dupin seeking recovery for personal injuries and damage to his automobile incurred in a collision between it and an automobile owned by McKinley Dupin and operated by his son Ronald Wayne Dupin, then eighteen years of age.

Prior to the filing of his suit and in order to avoid the other requirements of the Financial Responsibility Law Gibson went to McKinley Dupin and secured from him the release provided for in KRS 187.-340(4). At the same time and at the bottom of the same form he signed what was designated “acceptance” in the following language:

“I accept the foregoing release and acknowledge that I have no claim of action for damages against the said McKinley Dupin resulting from said accident.”

On defendants’ motion for judgment on the pleadings, tantamount to a motion for summary judgment, the circuit court entered an order dismissing the complaint.

To reverse this final judgment appellant urges three propositions, none of which in our opinion is valid.

1. He was permitted to file his affidavit alleging that he did not intend to release the defendants or either of them and that the quoted instrument was insufficient to do so; that he was ignorant of the law and did not then know that the father was liable for the son’s negligence. It is fundamental that a party is bound by his own contract and ignorance of its import is no defense in the absence of fraud. Clark v. Brewer, Ky., 329 S.W.2d 384. Though expressed in terms of a mere acknowledgment, the disclaimer at the foot of the release form must be presumed to have had a purpose more significant than its possible use in evidence as an admission against interest. It is our opinion that when it was signed as part of the same transaction in which McKinley Dupin signed' the release above it, the whole document had the legal effect of a mutual release.

2. He further contends that the son, who was not named in the release or acceptance, could not have been thereby released. It was alleged that the use of the Dupin automobile came under the family purpose doctrine. The release of one joint tortfeasor without specific reservation is the release of all. Kingins v. Hurt, Ky., 344 S.W.2d 811. This principle is generally held applicable to the joint liability of master and servant. 45 Am.Jur. 700 (Release, § 35). By analogy, we hold that it applies to parties whose joint liability rests on the family purpose doctrine.

3. Lastly he claims that the release and acceptance is rendered inadmissible for any purpose by KRS 187.390. The text of this section refers exclusively to the report required by KRS 187.320, the action taken by the Department of Revenue pursuant to KRS 187.320 to 187.390, the departmental findings on which such action is based, and the security filed as provided in these sections. A release filed pursuant to KRS 187.340(4) does not fall into any of these categories.

The plaintiff (appellant) for the valuable consideration of his own release had, in writing before suit, released the defendants for liability. The trial court so held and the judgment should be affirmed.

The opinion is approved by the court and the judgment is affirmed.


author: MOREMEN, Judge.

text:
    Otis C. COLES et al., Appellants, v. Robert JOHNS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 24, 1964.
    Rehearing Denied May 1, 1964.
    Terry L. Hatchett, Glasgow, for appellant.
    Charles R. Richardson, Harry H. Wilson,. Munfordville, for appellee.
   MOREMEN, Judge.

Appellants, Coles and McGee, sought to recover in the Hart Circuit Court the sum of $7000 which had been placed in escrow in connection with an option to buy one half interest in an oil and gas lease. The appellees, Robert Johns and escrow agent Wilson, by counterclaim, also sought to recover the amount which had been placed in escrow. The court held that Johns was ‘entitled to the sum sought.

. The owners of certain mineral rights in 176 acres of land executed and delivered to Johns a lease to the mineral rights for one year and so long thereafter as oil or gas was produced. The lease contained a forfeiture clause which read: “Well must be commenced by ninety days from date of delivery of lease or lease void. 1st well must be drilled to bottom of blue sand.” Although the lease was dated March 6, 1959, when one of the lessors signed the lease, it was necessary to obtain the signature of each of certain non-residents who owned an interest in the land and the deed was not actually returned, delivered and recorded until March 13, 1959. On March 14, 1959, Johns and Otis C. Coles executed an option agreement, a pertinent part of which read:

“Party of the second part may purchase on or before March 16, 1959, at 12:00 O’clock, Noon, one half of the total acreage embraced in said lease for the sum of $7,000.00 (Seven Thousand Dollars) reserving unto the party of the first part a Vl& overriding interest in the portion purchased by the second party, and said acreage shall be arrived at after a boundary survey has been made of the whole tract by starting at a mutually agreed fixed point on the northeast side and running a straight line to the southwest side at such fixed point as would equally divide the tract, and it is further granted unto the party of the second part that he may take either half.”

In view of the fact that additional surveys were necessary before an actual specific assignment could be made, the sum of $7000 was placed in escrow, Wilson being the escrow agent. At the time Coles exercised the option he disclosed that he had been acting as agent for Taft McGee and instructed Johns to make assignment of the leasehold to Taft McGee. Thereafter, for a period, all parties seem to have lost interest in completing the surveys and closing the assignment. However, Johns did obtain a boundary survey of the whole tract which he delivered to the escrow agent on June 9, 1959. It may be here remembered that the option agreement provided that after a boundary survey had been made of the whole tract, the parties would mutually agree upon a fixed point from which a division line might be run. It will be noted that this survey was delivered by Johns at a time when the forfeiture provision requiring the original lessee to begin drilling had practically expired, that is, ninety days from March 13, 1959.

Appellants contend that the delivery of the boundary survey such a short time before the expiration of the ninety day period for drilling made it impossible for them to come to Kentucky and agree upon division of the lease and commence drilling. This contention requires some discussion as to expiration of the ninety day period for drilling. In other words, appellants assume that the lease was in fact forfeited and that the original owners were entitled to cancel the lease because of such failure. By the terms of the lease to Johns from Peebles and other owners of the land, the lessee was required to commence a well “by 90 days from date of delivery of lease.” Although the lease was dated March 6, as we have shown above, it was not delivered to Johns until March 13. The rule in this state is that where the computation of time is to be made from a particular day, that day is excluded, Leeper v. Lemon G. Neely Co., 293 F. 967 (6th Cir.). See also Plumber v. Southern Oil Co., 185 Ky. 243, 214 S.W. 896. Thornton, Oil & Gas, sec. 239 (5th ed). The contract of lease required of the lessee affirmative acts to be performed within a period specified from the date of delivery and nothing in the instrument evinced an intention to include the date of delivery in the computation of time. This is the computation :

March 14-31: 18 days
April 1-30: 30 days
May 1-31: 31 days
June 1-11: 11 days
90 days

Thus the ninetieth day would be June 11, 1959. On June 11, Johns moved a fully equipped rig onto the property and commenced drilling a well. He testified that 'he began operation, even though there had been no division, in order to fulfill his obligation under the lease and to prevent a forfeiture. This drilling continued and the rig was left on the premises for about thirty-three days, thus prolonging the lease for that period.

The trial court who heard this case without intervention of a jury found that Johns’ action of drilling was performed in good faith and in an attempt to preserve the lease. Perhaps the original owners of the real estate, Peebles and others, could have forfeited the lease after Johns ceased drilling at the end of thirty-three days, but it was not shown that they did declare a forfeiture. In any event, the lease expired by its terms in one year because no oil was produced.

Appellant, McGee, bases his cause upon the theory that, under the option contract, the sole duty was upon Johns to execute and deliver to him the assignment of a moiety of the mineral lease and that when 'he failed to present a boundary survey before the lease terminated, McGee was entitled to recover the money which had been placed in escrow. Appellant seems to recognize that he had the duty, under the option, to agree upon a starting point for the division after a boundary survey was ■made, but he attempts to excuse his failure so to do upon the faulty premise that Johns -already had forfeited the lease by failure to drill within the ninety day period.

We heretofore quoted a pertinent ;part of the option agreement and we are unable to discover where all duties therein are placed upon Johns. It is plain that after the boundary survey was made the parties had to find “a mutually agreed fixed point on the northeast side.” Johns furnished the boundary survey but McGee made no attempt to perform his part of the agreement. His excuse — that the boundary survey was not furnished in time — is not valid. We agree with the trial court that “it appears that Johns was ready, willing and able to make the lease assignment except for McGee’s failure. Because of McGee’s failure it was impossible for Johns to carry out the option. His good faith throughout is evidenced by the fact that while it was as much the duty of McGee to have the survey (boundary) made under the option as it was Johns, Johns assumed the responsibility. In addition, perhaps as a precaution, he kept the lease in effect for approximately one month by undertaking to drill.”

Appellant has made another contention which we believe requires comment. It is argued that since McGee signed no writing the Statute of Frauds applies. The lower court properly ruled that Coles and McGee were the real principals. All parties knew that McGee supplied the $7000 and that Coles was acting for McGee. It is not necessary that the agent’s authority to purchase an interest in realty be in writing. Parke v. Spurlin, Ky., 268 S.W.2d 33. Nor is it necessary in order to hold the principal to a contract that the authorized agent disclose his agency. Chambers v. Murphy, 192 Ky. 839, 234 S.W. 960. However, in this case, the agency was disclosed by Coles. It is plain from the record that Johns performed his part of the option agreement. Coles signed the agreement as agent for McGee. To permit the Statute of Frauds to protect McGee after he had failed to carry out his part of the option agreement would be permitting the use of the Statute as a “sword and not a shield,” which is never permissible. Bullock v. Young, 252 Ky. 640, 67 S.W.2d 941.

Judgment affirmed.