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    Frank P. SEBREE, Administrator With Will Annexed of the Estate of Sarah Rosen, Deceased, et al., Respondents, v. Jacob ROSEN, as Executor of the Estate of Pete Rosen, Deceased, Betty Rosen, Sue Hyken, Carl R. Hyken, Mary Bodney, Bernard Bodney, and Sam Rosen, Appellants.
    No. 50688.
    Supreme Court of Missouri, Division No. 1.
    Sept. 13, 1965.

      Terence M. O’Brien, Daniel S. Millman, Hoskins, King, Springer & McGannon, Kansas City, respondents pro se.
    Arthur J. Kase, Kansas City, for appellants.
   WALTER H. BOHLING, Special Commissioner.

This is an appeal from a judgment awarding $25,000 to Daniel S. Millman and Terence M. O’Brien for legal services to the “Rosen Trust” from September 12, 1961, through July 19,1963, other than Tax Court service; and $4,175 to Hoskins, King, Springer and McGannon, and said Millman and O’Brien for legal services to said trust in certain Tax Court cases from January 1, 1962, through May 25, 1962. This appeal, the third involving Rosen property (Sebree v. Rosen, Mo., 349 S.W.2d 865, and 374 S.W.2d 132), was taken by Jacob Rosen, Betty Rosen (Jacob’s wife), Sue Hyken, Carl S. Hyken (Sue’s husband), Mary Bodney, Bernard Bodney (Mary’s husband), and Sam Rosen. An outline of the background of this litigation may be helpful in understanding the issues.

Pete Rosen and Sarah, his wife, created the Rosen trust May 22, 1952, and thereafter added thereto. It consisted of real property vested in the settlors by the entirety. Their name, originally Rosen-wasser, had been changed to Rosen. They were the parents of Meyer (who retained the family name), Rose, Morris, Jacob, Sue, Mary and Samuel, being all of the surviving children (heirs at law and primary beneficiaries of said trust) and parties plaintiff or defendant herein.

The net income of the trust estate was reserved to the settlors for their joint lives, passed to the surviving settlor for life, and then, first, said income for twenty years and thereafter the corpus was to be distributed to the settlors’ children as follows: Jacob, 30%; Morris, 15%; Sue, 15%; Mary, 15%; Meyer, 10%; Samuel, 5% ; and Rose, 10%. The trust instrument named Pete and Jacob joint trustees; the survivor, sole trustee; and City National Bank and Trust Company, of Kansas City, Missouri, successor trustee. Pete died June 14, 1954, aged 71 years, and Sarah, 74, died November 17, 1954. See 349 S.W.2d 870, 871.

In 1955 Morris, Rose, who had married Morris Silverman, Meyer (known as plaintiff-beneficiaries) and Frank P. Sebree, Administrator with will annexed of the Estate of Sarah Rosen, Deceased, instituted a suit in fourteen counts involving said trust estate and transactions between said settlors and their children. The principal defendants were Jacob, Sue, Mary and Sam, who had a 65% interest in the net income and residue of said trust and were represented by attorneys Arthur J. Kase and Walter Raymond. The plaintiff-beneficiaries, having the remaining 35% interest in said income and residue, and Frank P. Sebree, as administrator aforesaid, were represented by O’Brien and Millman. Other parties to the litigation need not be specifically mentioned.

Count III of the original suit, in the alternative .if the Rosen trust be held valid, sought, briefly stated, among other things, an accounting covering the actions of the trustees and the removal of the survivor trustee, Jacob Rosen. The decree, entered October 6, 1958, among other things, upheld the trust, removed Jacob as survivor trustee on the ground his administration of the trust had resulted in a bitter schism within the family and, in accord with the trust instrument, named City National Bank and Trust Company, of Kansas City, Missouri, successor trustee. We affirmed; and, in addition, considered Jacob had breached his trust in several respects, and any compensation allowed him as trustee should be conditioned upon his making good all losses he caused the trust. 349 S.W.2d 1. c. 885 (III). The decree on Count III was stayed pending appeal under supersedeas order and bond.

The City National Bank and Trust Company, herein also referred to interchangeably as Bank or Successor Trustee, through its trust officers, was hesitant to accept said appointment as trustee. It wanted to know fully what was involved, questioned many things, and wanted to be clear of all problems created by the Removed Trustee. Its general counsel advised against accepting said trust prior to the completion of the Removed Trustee’s accounting. The Bank knew of Millman’s and O’Brien’s activities in the Rosen property litigation and wanted the benefit of their knowledge of the situations as its representative in the Removed Trustee’s accounting. Millman and O’Brien knew the Bank had been named successor trustee by the settlors and the trial court, and considered it important that the Bank be prevailed upon to accept the appointment. There is an indication of record that defendant beneficiaries and counsel preferred another bank for the successor trusteeship. Our opinion in Se-bree v. Rosen, supra, was handed down September 11, 1961, and became final October 11, 1961. Beginning September 12, 1961, or soon thereafter Millman and O’Brien had many conferences with officials of the Bank, went over the pleadings, the exhibits and the various issues involved in the Sebree v. Rosen litigation, and discussed and explained the situations to said officials. They assured the Bank that if it accepted the trusteeship they would review the Sebree v. Rosen issues, and would secure a definite and final adjudication of the assets and liabilities as of the time the bank took over to the end that it would not be troubled with what had happened theretofore.

The Bank addressed a letter, dated October 26, 1961, to the attorneys for the defendants, Mr. Raymond and Mr. Kase, and for the plaintiffs, Mr. Millman and Mr. O’Brien, and forwarded a copy to Judge J. Donald Murphy, who had retained jurisdiction over the proceedings. The letter set forth certain conditions under which the Bank was willing to accept the Successor Trusteeship. It stated: “* * * it is necessary that the instant court proceedings result in a full and final judicial settlement of all accounts and transactions of the predecessor Trustee.” This, we understand, contemplated a final adjudication as to the liability of the Removed Trustee; what the assets and liabilities of the trust were, each separated as to principal and income; and what, if any, undistributed income the trust owed and to whom. The letter also stated the Bank desired to confer with all of the adult beneficiaries of the trust; believed “that the Court proceedings and other matters pertaining to the accounting to be made by” the Removed Trustee should be handled by the attorneys participating in the original suit, and desired an agreement between all the beneficiaries on the attorney to represent it after the conclusion of the accounting and matters pertaining to the litigation.

Representatives of the Bank met with the attorneys for the plaintiffs and for the defendants and also with the beneficiaries personally. All the beneficiaries, plaintiffs and defendants, agreed through their attorneys to the Bank becoming Successor Trustee and to the conditions it imposed.

I. At a conference with the Bank sometime after its letter of October 26 and prior to the hereinafter mentioned decree of December 22, 1961, attended by Kase and Raymond for the defendants and Mill-man and O’Brien for the plaintiffs, it was agreed that Millman and O’Brien would represent the Successor Trustee until the accounting and the exceptions thereto were completed; and thereafter A. E. Margolin would represent said Trustee. No restrictions were placed on Millman’s and O’Brien’s representation of said trustee during the completion of the accounting. This agreement was never reduced to writing. O’Brien and Millman testified to the above effect, and were supported by statements by Mr. Margolin, who appeared on behalf of the Successor Trustee at the hearing.

There was a conflict between respondents’ and Mr. Ease’s testimony. He testified the Bank was unwilling to act as trustee unless the attorneys in the original suit would work together for a successful accounting; that under the agreement it would use Millman and O’Brien to represent it only for the purpose of the accounting; and that all the attorneys would receive compensation from the trust for their services in and their activities would be limited to the accounting. Mr. Margolin, for the Successor Trustee, offered no witness at the hearing. Mr. Raymond, an attorney for the defendant-beneficiaries with Mr. Kase, was not called to testify. This failure to call witnesses connected with the Successor Trustee or defendant-beneficiaries who knew about the agreement and respondents’ activities “raises a strong presumption and inference that the evidence of such persons” would have been unfavorable to the defense. Ewing v. McIntosh, 359 Mo. 625, 222 S.W.2d 738, 741 [1]; Irle v. Irle, Mo.App., 284 S.W.2d 44, 47 [3, 4]. The trial Chancellor was familiar with and had personal knowledge of many of the facts involved and due deference is to be given his findings. The preponderance of the evidence is in favor of respondents, and additional factual situations sustain this conclusion.

Millman and O’Brien continued their conferences with officials of the Bank and their efforts to have it act as Successor Trustee. They drafted the “Separate Supplemental Judgment and Decree on Count III” that the original decree of 1958 might conform with the holdings in 349 S.W.2d 865 on said Count. Said decree was drafted and redrafted before it met the approval of everybody, and was entered December 22, 1961, and had the approval of the attorneys for the defendants and the plaintiffs.

The Bank accepted its appointment as Successor Trustee on December 22, 1961, the accounting to be completed later.

This supplemental decree, among other things, required the Removed Trustee to deliver to the Successor Trustee on December 31, 1961, all the assets, books and records of the trust, which we understand were turned over on January 2, 1962; required the Successor Trustee to commence its administration on January 1,1962; required the Removed Trustee to file his accounting and deliver to the Successor Trustee all cancelled checks, paid invoices, receipted bills and vouchers of the trust within thirty days; required any exceptions to said accounting to be filed within thirty days; and provided that such delivery and acceptance of said assets, books, records, checks, invoices, bills and vouchers should not prejudice any right or claim of the Removed Trustee, the Successor Trustee or any party to the action other than that the Removed Trustee should receive credit for the specific items so delivered. The Chancellor retained jurisdiction to enforce the provisions of said decree.

We briefly mention some of the legal services requested of and performed by respondents on nonaccounting matters, not including legal research, opinions and conferences in connection with situations arising in the day to day administration of the trust.

In January 1962, respondents reviewed the record in the Bodney partition suit and secured the payment of $22,000, the trust’s portion, to the trustee, and a refund of half the costs by other litigants. They, upon request, also advised the Bank said $22,000 was returnable for income taxes in the year actually received although constructively received earlier.

Respondents handled the legal matters connected with the sale of an apartment building at 40th and Main, getting tenants to vacate, pay their rent and approval of the sale by the court.

The St. Regis Hotel property, purchased and operated by the Removed Trustee, was heavily mortgaged, but the trust was not liable thereunder. Threatened with foreclosure in March 1962, the Successor Trustee decided it could not wait for the Removed Trustee’s accounting, had respondents make the necessary legal research and application and, after notice to Kase and Raymond, secured authority to abandon said property and make no further payments on the mortgages. Respondents represented the Successor Trustee at the foreclosure sale. There was a question whether a chattel mortgage covered after acquired personal property, and respondents secured the payment of $500 from the purchaser at the foreclosure for such personal property. They also assisted in the collection of back rents and the adjustment of prepaid rents.

Respondents rendered legal services in the collection of $1,750 back rent from the Kaufmann Window Shade Company, a tenant of trust property and about to take bankruptcy.

Respondents also rendered legal services in connection with the sale of 1802 W. 39th St. to Morris and Rose Silverman, owners of the other half, for $9,500.

Respondents arranged for a title search on all the real estate owned by the trust; resolved the problem involved in the administration of real estate owned by the trust in Kansas; and performed other non-accounting legal services for the trust estate.

Such additional facts as are considered necessary will be developed in the course of the opinion.

II. Appellants make the point that respondents “were employed by and representing the estate of Sarah Rosen, whose interest was and is in conflict with the interests of the Rosen trust”; and contend said attorneys are not entitled to any fees from the Rosen trust.

The settlors, as husband and wife, acquired title under separate conveyances to two adjoining Woodland Avenue tracts in Kansas City, Missouri. One-half of this real estate was improved, but the other half was not. With the Successor Trustee’s exceptions about ready for filing, its trust department discovered in investigating Rosen tax bills that the improved half of said property had not been conveyed to the trust although it had been administered upon from the beginning. Accordingly, the exceptions were redrafted to present this situation to the court and filed January 18, 1963. In the course of the proceedings the court was asked to declare the improved half a part of the Rosen trust.

Exceptions filed January 28, 1963, of Frank P. Sebree, administrator aforesaid, claimed said improved half, the undistributed income therefrom, and that certain undistributed trust income had not been paid Sarah Rosen during her lifetime.

We are in accord with the provisions of Civil Rule 4.06, V.A.M.R., on “Adverse Influences and Conflicting Interests.” Moffett Bros. Partnership Est. v. Moffett, 345 Mo. 741, 137 S.W.2d 507 [1-3]. However, we find appellants’ position not well taken under this record.

All had constructive notice that the Woodland Avenue improved tract was not included in the conveyance to the trust; and when respondents presented that situation to the court at the direction of the Successor Trustee in its exceptions, their client published said fact to the parties interested in this trust estate. Said exceptions on behalf of the Sarah Rosen estate were filed ten days after the filing of said Successor Trustee’s exceptions. We find no violation of any confidences of the Successor Trustee by respondents.

Prior to any agreement respecting the attorneys for the Successor Trustee, the Bank was fully informed and knew that Millman and O’Brien had been and were still representing the plaintiffs, and that Raymond and Kase had been and were still representing the defendants in the Sebree v. Rosen litigation. This record is to the effect that the attorneys would continue to represent their respective clients. Appellants’ evidence was that notwithstanding the existing relationship between the attorneys and the different litigants, the Bank was unwilling to accept the trusteeship unless the attorneys agreed to work together; that respondents would represent the Bank as Successor Trustee and Raymond and Kase would represent the Removed Trustee, and the attorneys would receive compensation from the trust.

A. E. Margolin succeeded respondents as attorney for the Successor Trustee under the agreement with the decree of July 19, 1963. Respondents, securing leave, have filed a transcript of proceedings resulting in a supplemental decree of September 9, 1964, ruling the issues involved in appellants’ complaint under this point, the court having in prior decrees retained jurisdiction to later adjudicate said issues. Consult Phelps v. Cape Girardeau W. W. & El. L. Co., 165 Mo.App. 454, 463, 147 S.W. 130, 133 [1] and cases cited. Said transcript shows that, after an uncontested hearing wherein the trust was represented by Mr. Margolin, the court reformed the trust instrument, vested title to the improved Woodland tract in the trust as of the date of its declaration, May 22, 1952, and determined that the trust owed the Sarah Rosen, deceased, estate $9,833.58, with interest, for unpaid trust income between June 14, 1954, the date of her husband’s death, and November 17, 1954, the date of her death, as the surviving settlor income beneficiary.

Respondents told the Successor Trustee several times to get other lawyers if it thought peace would be better served, and-in such instances A. E. Margolin was selected, in some matters prior to the adjudication on the accounting. Mr. Margolin, at the hearing on respondents’ application, stated: “I am not suggesting a conflict of interest.” Raymond and Kase, attorneys for the defendant-beneficiaries, well knew that respondents had been and were representing the plaintiff-beneficiaries when they admittedly agreed for respondents to represent the Successor Trustee through the accounting. The answer of the Removed Trustee to the exceptions to his accounting established conflicts of interests with the interests of the trust. However, Raymond and Kase accepted payment from the trust for their services on behalf of the Removed Trustee. No motion to enjoin respondents from representing the Successor Trustee was filed by said Trustee or on behalf of the clients of Raymond and Kase. The Successor Trustee made no contention that respondents were representing conflicting interests or had violated any confidences. It filed no motion for new trial. Its action supports an admission that prior to the agreement for the payment of attorney fees it had been fully advised of the relationship between the several attorneys and the parties to the Sebree v. Rosen litigation. This “conflict of interest” issue was first presented in appellants’ motion for new trial. The record warrants a finding that appellants took their chances for a satisfactory result and upon being disappointed (apparently with the amount rather than the fact of an allowance) presented this “conflict of interest” issue for court action. In these circumstances appellants waived any right they may have had under said issue. State v. Howard, 118 Mo. 127, 24 S.W. 41, 43(4); Michel v. McKenna, 199 Wis. 608, 227 N.W. 396 [5, 6]; Harvey v. Harvey, 202 Wis. 553, 231 N.W. 580 [6]; Deupree v. Gar-nett, Okl., 277 P.2d 168 [4, 7]; Lee v. Zaske, 213 Minn. 244, 6 N.W.2d 793 [6]; 7 C.J.S. Attorney and Client § 48, p. 829; 7 Am.Jur.2d, Attorneys at Law, § 157; Annotation, 52 A.L.R.2d 1268 § 9. It also has been stated that only the party who has been a client of the attorney may complain of his conduct. 7 C.J.S. supra; Michel case, supra [2]. State v. Burns, Mo., 322 S.W.2d 736, 740 [6], is distinguishable on the facts and issues.

III. The court allowed respondents compensation for legal services (other than tax court services) between September 12, 1961, and the decree of July 19, 1963, on the exceptions to the Removed Trustee’s account. Sebree v. Rosen, 349 S.W.2d 865, was handed down September 11, 1961. Appellants claim the court erred in taking into consideration services by respondents prior to the Bank accepting this trusteeship on December 22, 1961, citing Selleck v. Hawley, 331 Mo. 1038, 56 S.W.2d 387, 395 [15], to the effect a trustee’s powers and duties begin when he accepts the trust. Respondents say their services between September 12 and December 22, 1961, bene-fitted the trust and are for consideration.

The Successor Trustee, prior to accepting this trust, secured an agreement covering the attorneys for the trustee. We think the Chancellor could find that certain legal services performed by respondents prior to December 22, 1961, including the drafting and redrafting of the decree entered on December 22, 1961, were knowingly accepted and taken advantage of on behalf of the trust. The settlors expressly authorized the trustee to employ counsel (see 349 S.W.2d 1.c. 891 [49, 50]). In this case the former trustee stood removed and his appointed successor, named by the settlors, was hesitant in accepting the trust. The Selleck case does not establish prejudicial error in the unusual circumstances of this case. We conclude the Chancellor could consider so much of the questioned services as he found beneficial to the trust. Taussig v. St. Louis & K. Ry. Co., 166 Mo. 28, 65 S.W. 969 [1, 2], 89 Am.St.Rep. 674; Boyd v. Chicago & A. Rd. Co., 84 Mo. 615; 7 C.J.S. Attorney and Client § 175, p. 1042.

IV. The Chancellor found that respondents, between September 12, 1961, and July 19, 1963, rendered legal services, other than tax court services, at the request, on behalf of and for the benefit of the Rosen trust; that said services were reasonably worth $25,000, benefitted said trust to that extent, and awarded respondents $25,000 therefor.

Upon accepting the Successor Trusteeship on December 22, 1961, the Bank employed Millman and O’Brien as attorneys for the trustee. There was no agreement respecting their compensation, and respondents’ claim lies in quantum meruit. Mecartney v. Guardian Trs. Co., 274 Mo. 224, 202 S.W. 1131 [5, 6]; Bennett v. Adams, Mo.App., 362 S.W.2d 277, 281.

Mr. Millman and Mr. O’Brien attached to their application separate time schedules covering their legal services, excluding tax court services, for the Rosen trust between September 12, 1961, through July 19, 1963. Each testified said application and his time schedule was true and correct, and involved problems of the trustee. O’Brien’s and Millman’s said schedules show 704 and 674)4 hours, respectively, of legal services to the trust — a total of 1,378 hours. There was testimony that the Bank performed the trustee and accounting services and that Millman and O’Brien performed legal services and avoided duplication of work.

O’Brien and Millman testified the fair and reasonable value of said services was $34,000, as did Harry L. Jacobs and James P. Aylward, who were admittedly eminently qualified by appellants’ counsel, Mr. Kase. The Kansas City Bar Association has established a minimum fee of $25 an hour for services of this nature. Mr. Margolin stated the Bank had reviewed respondents’ application and had no reason to question the time involved as to the various matters, and the Bank’s experience was that $20 to $25 an hour was reasonable. Mr. Kase stated $20 or $25 an hour was fair; that he had no argument about the accuracy of the time sheets, but questioned whether the time was wisely spent on behalf of the trust. Consult S.Ct.Rule 4.12, V.A.M.R.

Appellants now claim $25,000 is excessive in that it included compensation for services never shown to be necessary for, requested by, or of benefit to the Rosen trust. Their presentation is that Terence O’Brien claimed 44 hours of legal research on the Removed Trustee’s failure to account, an excessive number of hours, in March and April, 1962, and 126]/2 hours of legal research between June 5 and October 17, 1962, with no explanation as to questions involved.

Appellants relate the 44 hour item to: “March 22 — 5 hours; March 30 — 7 hours; April 2 — 7i4 hours; April 4 — 71/2 hours; April 10 — 6 hours, and April 11 — 7 hours.” We reach a total of 40 hours.

The supplemental decree of December 22, 1961, as stated, required the Removed Trustee to file his accounting within 30 days; that is, on or about January 21, 1962. (We mention here that the supplemental decree of July 19, 1963, on the exceptions to the Removed Trustee’s accounting found that the accounting of the Removed Trustee was “inadequate and insufficient.”) No accounting was filed. Following complaint by respondents, Removed Trustee’s attorneys applied for and secured permission to file his accounting on or before March 1, 1962. Again, the accounting was not filed. On April 10, 1962, the Bank filed its report that the Removed Trustee had failed to file his accounting as directed and asked for instructions thereon. On April 11, 1962, at a hearing on the last-mentioned filing, the Removed Trustee deposited with the clerk of the court “a vast conglomeration of records” — cancelled checks, bank statements, invoices et cetera, and a paper referring thereto. On April 18, 1962, the Removed Trustee filed a paper captioned “Accounting of Removed Trustee.” On May 3, 1962, the Bank filed an application to reject said purported accountings of April 11 and April 18. At a hearing on May 4, said application to reject was continued for thirty days.

These failures of the Removed Trustee to file a proper accounting delayed a final adjudication on his accounting, handicapped and impeded the Bank’s administration of the trust, and brought on administrative problems, which were referred to respondents for legal opinions and conferences with trust officials of the bank.

Other portions of this record indicate that at least part of the 7j^ hours of March 30 was concerned with the advisability of citing the Removed Trustee for contempt and the preparation of a motion to that end, which motion was not filed; and that part of the 71/2 hours of April 4 was concerned with payments on mortgages against the St. Regis Hotel.

Satisfied the Removed Trustee did not intend to file a proper accounting and in an effort to accomplish something, the Bank and respondents decided to examine the records delivered to the clerk of the court to determine whether proper exceptions could be arrived at therefrom and to not stand on their rights under the decree of December 22, 1961. Respondents had the responsibility of overseeing the analysis of the records submitted by the Removed Trustee to the end that all breaches of trust by him be presented to the court and for the protection of the Successor Trustee in its administration of the trust.

We understand the Removed Trustee reported that he had trust assets valued at $547,000 on June 14, 1954, the date of his co-trustee’s death, that up to his removal on December 31, 1961, he had gross receipts of over $1,000,000; that he claimed credit for disbursements of over $902,000, with court approval for only $47,000; and, according to his report, he turned over to the Successor Trustee assets valued at $727,000.

The Bank on May 17, 1962, received from the clerk of the court the “conglomeration of records” deposited by the Removed Trustee and issued its receipt therefor, which consisted of seven legal sized pages of single spaced typewriting. Between May 1962, and sometime in January 1963, respondents were engaged in reviewing said records and making legal research to determine which of said transactions and other transactions respondents knew about should be included in their exceptions. Many of the problems were complex and difficult. Respondents would prepare rough drafts of exceptions, have conferences and review them with trust officers of the Bank, and revise and redraft the exceptions. Said exceptions, consisting of twenty-nine legal sized sheets of double spaced typewriting, were filed January 18, 1963 and set for trial on June 17, 1963. Millman prepared a trial brief and O’Brien interviewed the witnesses. There was an indication that the Removed Trustee would be interested in settling the exceptions. The lawyers, including Mr. Margolin, worked on a decree which finally no one opposed and which was entered during Judge J. Donald Murphy’s absence by Judge Harry A. Hall on July 19, 1963.

The decree surcharged the Removed Trustee $45,000, which he paid; and, among other holdings, ruled on what receipts and what disbursements were to be placed under principal and under income.

Appellants’ presentation involving the 1261^ hours is a lump sum presentation and does not point out the specific items appellants have in mind. From our review of other portions of the record we think it is to be inferred that the legal research involved related to matters connected with the exceptions to the Removed Trustee’s accounting. We are in accord with the observation in Jesser v. Mayfair Hotel, Inc., Mo., 360 S.W.2d 652, 664, to the effect that attorneys are not required “to select the precise issue upon which they will ultimately prevail and to reject all others, or to adduce the exact amount of evidence needed and no more.” Judgments should not be set aside unless clearly erroneous. S.Ct.Rule 73.01(d), V.A.M.R.; § 510.310(4), RSMo 1959, V.A.M.S.

The burden was on appellants to affirmatively establish that the compensation allowed the respondents was a clear or manifest abuse of sound judicial discretion. Rochester v. Gonterman, Mo., 49 S.W.2d 71 [1]; James v. James, Mo., 248 S.W.2d 623 [8]; Jesser case, supra [15].

We have considered judges to be experts on the question of attorney fees and that a judge who tries a case and is acquainted with all the issues involved may “fix the amount of attorneys’ fees without the aid of evidence.” Agnew v. Johnson, 352 Mo. 222, 176 S.W.2d 489 [6]; Flynn v. First Nat. Safe Deposit Co., Mo., 284 S.W.2d 593 [9].

Judge J. Donald Murphy presided over the trial of the two cases involving Rosen property that reached this court upon appeal and, excepting the agreed upon decree, over proceedings involved in respondents’ application. Respondents or one of them appeared before him on about twenty-three occasions in performing services for this trust. The situation is similar to that in Donaldson v. Allen, 213 Mo. 293, 111 S.W. 1128 [1], where it is stated: “ * * * the judge deciding the point presumptively knew the character of the services rendered in duration, zeal, and ability. He presumptively knew the value of them according to custom, place, and circumstance. * * * In this view of the matter, there is room for a most violent presumption that the trial court did not err in gauging the quantum of the fee.” Jesser case, supra.

There is no question about respondents’ legal services benefitting the trust. In the absence of evidence to the contrary it is presumed that the allowance for attorney fees was for compensable services (Sutliff v. Montgomery, 115 Mo.App. 592, 92 S.W. 515 [5] ); and that no allowance was made for noncompensable services (Sullivan v. Winer, Mo.App., 307 S.W.2d 704 [9]). In Pickel v. Pickel, Mo.App., 179 S.W. 949 [1], an allowance of a lump sum for attorney fees, involving numerous items some of which were proper and others may not have been, was upheld on the presumption of right action by the trial court where the record did not disclose the items rejected or allowed. See also Carmack v. Dade County, 127 Mo. 527, 30 S.W. 162.

Schlanger v. Simon, Mo., 339 S.W.2d 825, 828 [3], states: “An appellate court should not become an advocate of one of the parties, and therefore it is not the duty of an appellate court to search the evidence in an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.” Morris v. Willis, Mo., 338 S.W.2d 777 [7], states: “It is not the duty or function of appellate courts to brief points made in an appellant’s brief.” Whiteaker v. Chicago, R. I. & P. R. Co., 252 Mo. 438, 160 S.W. 1009, 1015 [11].

The evidence established a minimum fee for services of the nature rendered by respondents of $25 an hour. Respondents claimed a total of 1,378 hours of legal service to the trust. Appellants’ presentation does not establish prejudicial error.

V. The Chancellor awarded Hoskins, King, Springer and McGannon, Daniel S. Millman and Terence M. O’Brien $4,175 for legal services in the Federal Estate Tax court cases for the Rosen trust from January 1, 1962, through May 25, 1962, on findings that said services “were rendered on behalf of and for the benefit of the Rosen Trust and * * * were reasonably worth $4,175.00 to the Rosen Trust and benefitted it to that extent.”

Appellants in their argument contend respondents are not entitled to said $4,175 because they did not procure and file the power of attorney called for by 6 C.C.H. Standard Federal Tax Reporter, 1964 page 67198, ¶ 6013C(c) (1) (see 26 C.F.R. § 601.-502(c) (1)), and were incapable of serving the trust. Said ¶ 6013C(c) (1), in part, reads: “Except as otherwise provided in this section, no attorney or agent shall appear on behalf of any person before any office of the Internal Revenue Service nor shall the attorney or agent be recognized in any matter connected with the presentation of another person’s interests, including the preparation and filing of necessary written documents and correspondence with the Service relating to such interests, unless the attorney or agent presents and files a power of attorney in proper form, or a true copy thereof, from the person authorizing the attorney or agent to represent him in the matter in question.”

Prior to the Bank accepting the successor trusteeship, Federal estate tax cases involving Rosen property were pending for trial in the United States Tax Court. Two involved the estate of Sarah Rosen, deceased, Frank P. Sebree, administrator. One alleged liability as transferee for a deficiency of $166,560.36 in said taxes owed by the estate of Pete Rosen, deceased. The other alleged primary liability for a deficiency in Federal estate taxes of $440,476.-50. Two, based on transferee liability, involved the Pete and Sarah Rosen trust, Jacob Rosen, trustee. One involved the aforesaid alleged deficiency owed by the estate of Pete Rosen; and the other involved the aforesaid alleged deficiency owed by the estate of Sarah Rosen. Prior to December 22, 1961, Millman, O’Brien and the Hoskins firm, specialists in Federal tax matters, represented the Sarah Rosen estate, and R. Kenneth Cohn represented Jacob Rosen, trustee.

O’Brien informed the Bank of the pen-dency of these Federal estate tax cases prior to its acceptance of the trusteeship.

In January 1962, O’Brien, in response to a telephone request for a conference on said cases from Mr. Lostutter, an attorney representing the Government, went to Los-tutter’s office. Lostutter wanted to know if the cases could now be settled, Sebree v. Rosen having been decided. O’Brien reviewed the situation generally for Lostut-ter, informing him Jacob Rosen had been removed as trustee; that the Bank was successor trustee, that Millman and he represented the Sarah Rosen, deceased, estate and the Successor Trustee; and he would check into the situation and submit a settlement proposal. O’Brien asked the Hoskins firm for recommendations on a settlement.

The Hoskins firm considered their services were for the Sarah Rosen estate and for the Rosen trust. They reviewed and analyzed the files and on February 21, 1962, submitted their memorandum of suggestions for settlement to O’Brien.

Charles G. Young, Jr., and Fred A. Lambert, officers in the Bank’s trust department, are lawyers. Mr. Young is an executive vice-president of the Bank.

A letter from Mi;. Lambert, dated March 8, 1962, to O’Brien, stating he had been informed Millman and O’Brien were looking after the tax court cases, asked for a summary of what was at issue and their present status. On March 20 O’Brien forwarded the requested summary to Lambert, detailing the issues in the Rosen tax proceedings, stating the status of said cases, and advising Lambert of the forthcoming settlement conferences with Lostutter.

Thereafter, without detailing the facts, O’Brien had several conferences with Mr. Lostutter and Mr. Sturm, a trial attorney for the Government. The issues and contentions were discussed. O’Brien was requested to submit certain memorandum and what the proposed settlements meant in dollars and cents. The preparation of some of the exhibits took considerable time. O’Brien kept the Successor Trustee fully advised of the position taken by the Government, the exhibits prepared by respondents for submission to the Government in furtherance of a settlement and their meaning.

A conference was held at the office of Charles G. Young, Jr., in the Bank on May 18, attended by Young, Lambert, Kase, Raymond, Hoskins, Millman and O’Brien. The settlement was discussed. Kase thought the valuations were excessive. The meeting recessed for Kase to put his ideas in writing.

Kase wrote Young May 23, stating the beneficiaries he represented desired that Cohn’s “representation of the trust and any other attorneys who may represent the trust on these tax matters terminate as of this date.” Young forwarded Kase’s letter with a memorandum to O’Brien. O’Brien answered promptly, May 25, stating in part: “The Hoskin’s firm and Millman join me in saying to you: Please feel perfectly free to terminate our employment on these matters at any moment you wish. As I have informed you, we will welcome being relieved of responsibility to the trust on these Federal estate tax matters.”

Respondents thereupon ceased representing the Successor Trustee in tax court matters. Mr. Margolin started representing said trustee in the settlement negotiations.

Respondents claim in the settlement of the Estate Tax cases they secured agreements between January 1 and May 25, 1962, that Sarah contributed equally with Pete in the acquisition of the jointly held property; as to the fair market value of 34 tracts of real estate and other property, and that the settlors’ conveyances to their children were supported by valuable considerations and were not gifts in contemplation of death.

The Hoskins firm, Millman and O’Brien represented the Sarah Rosen estate throughout said proceedings; that is, before, during and also after they represented the Rosen trust and Sarah Rosen’s estate from January 1, 1962, through May 25,1962. We understand that in the settlement of said tax cases said services were taken as an allowable expense item at $25 an hour, which the evidence established as a minimum for such services; that said attorneys were credited with 514 hours but agreed to accept a total of $12,500 for said services; that said attorneys agreed to accept $8,350 for the 348 hours credited while representing both the Rosen trust and the Sarah Rosen estate, which $8,350 was divided equally between said two clients; that is, $4,175 to each. (We understand the cases involving the deficiency of $440,476.50 were settled for $28,603.61, and that the cases involving the deficiency of $166,560.36 were settled for $33,947.03.)

Mr. Margolin, who succeeded respondents as attorneys for the Successor Trustee, admitted that as the settlement negotiations moved forward “we had to use as tools of the settlement the statistical subjects that had been prepared by other counsel because we did not retread this same ground again”; and he also admitted that the Successor Trustee “did benefit from them.”

Judicial admissions against interest are conclusive against the party making them in the absence of contradictory evidence. Wehrli v. Wabash Ry. Co., Mo., 315 S.W.2d 765, 774 [10]; Polk v. Missouri-K.-T. Ry. Co., 341 Mo. 1213, 111 S.W.2d 138, 142 [4], 114 A.L.R. 873, and State ex rel. St. Louis Basket and Box Co. v. Reynolds, 284 Mo. 372, 224 S.W. 401, 403, affirming 200 Mo.App. 568, 207 S.W. 891, 894 [1].

The testimony was that the four tax court cases had to he settled in one package and they could not be settled separately. Respondents’ work necessarily benefitted the trust.

Section 601.507, 26 C.F.R., states: “The Tax Court has its own rules of practice and procedure and its own rules respecting admission to practice before it.” 6 C.C.H. Stand.Fed.Tax Rep. ¶ 6017. Assuming, without holding, a power of attorney was required under ¶ 6013C(c), (1), quoted supra, said regulation of the Internal Revenue Service should not extend to rule respondents’ rights against the Rosen trust under this record.

The respondents undertook in good faith to represent the Rosen trust in the estate tax cases when no other person was doing so. The Successor Trustee was advised of this representation, was kept informed of the developments and progress, what the proposals meant in dollars and cents, and the Successor Trustee knowingly accepted said services. It stands admitted that respondents’ work product for the period involved was used fully in behalf of the Successor Trustee for the benefit of the Rosen Trust in the final settlement of the cases. In the circumstances the Rosen trust, having received the benefit, is liable for the payment of a reasonable charge for respondents’ services. See authorities cited under III and the Agnew, Donaldson, Sutliff, Sullivan, and other cases under IV, supra. See also Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936 [60, 61]; Jesser v. Mayfair Hotel, Inc., Mo., 360 S.W.2d 652, 661. We base this result on the admissions against interest with respect to the use of respondents’ work product on behalf of the Rosen trust.

The foregoing sufficiently disposes of the issues on this appeal.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by BOHLING, Special Commissioner, is adopted as the opinion of the Court.

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

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


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    NATIONAL STORES, INC., and Workmen’s Compensation Board, Appellants, v. Nancy Katherine HESTER, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Rehearing Denied Oct. 1, 1965.
    James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, Robert Matthews, Atty. Gen., Frankfort, for appellants.
    J. Wood Vance, Jr., Glasgow, for appel-lee.
   WADDILL, Commissioner.

In a proceeding instituted by appellee, Nancy Katherine Hester, to recover benefits provided by our Workmen’s Compensation Act against her employer-appellant, National Stores, Inc., the Workmen’s Compensation Board found that appellee’s disability resulted from a condition medically described as tenosynovitis and was not compensable as it did not result from a traumatic personal injury sustained by accident as required by KRS 342.005(1). On appeal (KRS 342.285) the circuit court held that the Board acted erroneously as a matter of law in finding that appellee’s injury did not arise out of and in the course of her employment and remanded the case to the Board with directions to enter an award of total disability as set forth in KRS 342.095, with interest on past due installments of compensation and directed medical allowances provided by KRS 342.020.

Appellant now contends for reversal of the judgment that: (1) The finding of the Board is binding on the circuit court and (2) appellee’s disability is not compensa-ble because tenosynovitis is neither an occupational disease under KRS 342.316 nor is it caused by a traumatic personal injury sustained by accident as required by KRS 342.005.

Appellee, approximately 50 years of age, was employed by appellant in a capacity which required her to constantly operate a calculating machine. During April, 1963, she consulted her physician concerning a painful condition in her right hand which prevented her from performing her duties for appellant. This condition was diagnosed as tenosynovitis which is defined as inflammation of the sheath or membrane which surrounds a tendon.

The medical testimony established that the complained of condition was caused by appellee’s continuous use of her right hand in operating a calculating machine. One physician explained the development of tenosynovitis thusly:

“This is an attritional type of lesion, and is found after repeated movement of a tendon doing an unaccustomed type of motion. The muscular effort of a certain task may produce the fatigue phenomenon in a tissue which cannot functionally adapt itself. This condition occurs frequently in women of middle age. Typewriting, piano playing, writing, washing, wringing out clothes, cutting cloth with heavy scissors are tasks which furnish a cause necessary for the production of this lesion.”

He also stated that this condition is not limited to any particular segment of the population or industry. Another physician testified that appellee’s condition was caused generally by overwork during Easter, 1963 and was specifically* attributable to the repetitious use of the right thumb and wrist in operating a calculating machine during her employment with appellant.

By the 1956-Amendment to our Workmen’s Compensation Act KRS 342.316 was changed to provide in part:

“(1) ‘Occupational disease’ as used in this chapter means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is equally exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section.”

The Board found pursuant to uncontra-dicted medical testimony that appellee’s condition of tenosynovitis was solely caused by performing the usual work incident to her employment with appellant. The appellant, while conceding that the 1956-Amendment enlarged the compensation coverage to include additional occupational diseases, argues that appellee’s condition is not compensable as an occupational disease under the above provision because it is an ordinary disease to which the general public is equally exposed.

Appellant would have us interpret this provision to make compensable only those diseases which arise out of the occupational environment and which a member of the public could not contract outside such an environment. There is probably no movement of the human body required in the performance of a job which cannot be duplicated in the discharge of household chores or in the pursuit of recreation and yet any of these might produce a disease such as we have here. Similarly there are few, if any, compensable diseases induced by germs or inhalation of impurities which could not at some time be contracted by a member of the general public. To accept appellant’s interpretation would give the 1956-Amendment a narrow, if not nugatory, effect contrary to the provision of KRS 342.004.

According to acceptable authority the question of whether a disease is occupational must be decided on the peculiar characteristics of each employment and the effect it has on the individual involved. See Professor Larson’s discussion in 1 Larson Workmen’s Compensation, Section 39.10 as supplemented and the cases considered therein.

Whether or not a condition is compensable as being an occupational disease under KRS 342.316 depends upon whether the compensation claimant has established that hazards of his employment increased his exposure to the disease he has contracted. We have concluded that in the instant case the evidence establishes that appellee has a compensable disability from an occupational disease within the provisions of our Workmen’s Compensation Act and is entitled to an award of compensation benefits. In Benware v. Leo F. Benware Creamery, 22 A.D.2d 968, 254 N.Y.S.2d 466 (1964) the Supreme Court of New York held that the test of determining whether a disease is an occupational one is not whether the disease is literally peculiar to the occupation but whether there exists a recognizable link between the disease and some distinctive feature of the claimant’s job, common to all jobs of that sort.

While it will probably be contended that the rule here applied will render employers liable for all the wear and tear on a human body caused by the work itself and open the door to recovery for every condition or disease that might be caused or adversely affected by the employment, such a contention is not within the purview of the instant case.

We observe that in 1937, this Court in Turner, Day & Woolworth Handle Co. v. Morris, 267 Ky. 217, 101 S.W.2d 921, affirmed an award of the Board granting compensation benefits to a workman who contracted tenosynovitis arising out of and in the course of his employment. Liability was predicated upon the finding that the compensation claimant sustained a com-pensable disability under the provisions of KRS 342.005(1).

Appellant’s other contention that the court exceeded its authority in failing to uphold the order of the Board dismissing appellee’s claim is without merit since this Court has uniformly held that in cases of this character the only question presented is one of law which permits review by the courts concerning whether the Board has properly applied the law to the facts.

The judgment insofar as it remands the case to the Board for the entry of an appropriate award of compensation benefits is affirmed.


author: MILLIKEN, Judge.

text:
    Bruce BAKER et al., Appellants, v. Joseph B. WILLETT, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Rehearing Denied Oct. 1, 1965.

      Lively M. Wilson and Stites, Peabody & Helm, Louisville, for appellants.
    G. William Clements, J. Walter Clements, Louisville, for appellee.
   MILLIKEN, Judge.

On the Watterson Expressway about 3:00 a. m., on February 7, 1959, the ap-pellee, Joseph Willett, was struck by the oncoming automobile of Gene Allen Hamm which he was trying to flag down so that the appellant Bruce Baker, operator of the' service truck of the appellant Standard Oil Company, could pull out the mired automobile of Robert H. Hinton, Jr., one of Willett’s friends, from the divider strip between the east and westbound lanes of the Expressway. The front bumper of the stranded automobile was about 2Yz feet from the eastbound lanes and was the part of the car closest to the paved portion of the highway.

In the litigation which followed Willett obtained judgment against Hamm, Baker and the Standard Oil Company which the jury apportioned $3,650 against Hamm, the driver of the oncoming car, $24,350 jointly against Standard Oil and its employee, Baker. Hamm satisfied the judgment against him, and Standard Oil and Baker have appealed, their motions for a directed verdict and judgment notwithstanding the verdict having been denied. The crux of the case on appeal is whether Willett was a mere volunteer or whether he was an emergency employee of Standard Oil and, if the latter, whether his knowledge of the danger involved in the flagging operation was such that it must be concluded as a matter of law that he assumed the risk.

After his automobile became mired, ap-pellee’s friend, Hinton, went to appellant’s Standard Oil Station and arranged to have appellant’s attendant, Bruce Baker, pull the stranded automobile from the median. Hinton did not have enough money for the service run, so he phoned appellee, Willett, and requested him to bring him some money. Appellee Willett brought the necessary money to the Standard Oil Service Station. There he met Hinton and the two proceeded with Baker in the Standard Oil truck to the place where the Hinton automobile was stalled. At the point where the car was stalled it was very dark and the road was wet from the misty rain or snow that was falling.

To extricate the mired automobile from the center or median strip of the highway, Baker backed his employer’s truck to a point where he could connect the chain from the truck to the stalled automobile. This maneuvering resulted in the Standard Oil truck’s complete blocking of the inside or north east-bound traffic lane and partial blocking of the outside or the south east-bound traffic lane. However, traffic was still able to pass by using the shoulder on the south side of the road. Though both the headlights and the taillights of the truck were turned on, illumination from this source was not directed toward' oncoming motorists because the truck was facing in a southeasterly direction, that is, the truck’s headlights were facing in the same direction as the oncoming traffic. According to Baker, the spotlight was adjusted so that it shone in the direction from which traffic was approaching. According to Hinton and the appellee, the spotlight was adjusted in such a manner that it served no useful purpose. In the presence of the appellee and Hinton the Standard Oil employee, Baker, requested that someone go up the road to flag traffic in order that passing motorists would proceed with caution. Baker testified that it was necessary to place himself and his employer’s truck in this precarious position in order to pull out Hinton’s car and that someone was needed to flag traffic for safety precautions.

By having oncoming traffic flagged, protection was afforded to the Standard Oil truck, to the Standard Oil employee, Baker, and to the Standard Oil customer, Hinton. Since the Standard Oil truck had been placed in a position whereby it was blocking the free flow of traffic, Standard Oil owed a duty to warn unsuspecting motorists of the impending danger. Hinton’s mired automobile did not block traffic on the highway.

When appellee went to flag traffic, he was not provided with any warning device such as a flashlight, a flare, or a fusee, nor was a flare lighted at the site of the mired car and Standard Oil truck. The record provides conflicting testimony as to whether or not these items were requested by Willett who went up the road about 100 feet and began to flag traffic by flapping his grey overcoat. Willett succeeded in attracting the attention of the drivers of two automobiles and two semi-trailers prior to the accident which is the subject of this suit. Defendant Allen Hamm approached the scene of the accident traveling eastward in the south lane of the Expressway. He claimed that he was driving 40 to SO miles per hour and that he saw the Standard Oil truck when he was ISO feet away. Hamm jammed on his brakes full force. This caused his car to skid down the road sideways and the car’s left rear fender struck the appellee when he was in the north lane. Appellee was knocked 70 feet and severely injured.

In the case before the Court the mired car was not blocking the highway and there was no pressing necessity that it be removed immediately for that reason. In fact, there was no danger to the master’s property until and unless Baker placed Standard’s truck in a precarious position on the highway. Thus, Baker had to deliberately create a highway emergency for one to exist. Baker had control of the situation; he could have waited until visibility was better and conditions safer.

We view the factual situation presented as no emergency in the sense that a situation or condition had been thrust on Baker over which he had no control, and had to have help in order to protect his employer’s interests. Every facet of the developing situation was foreseeable by all the individuals concerned. They all knew that the Hinton car was not a traffic hazard where it was mired. It was its extrication which would create the hazard, and Hinton, Baker and Willett all realized it and that is why they wanted someone to flag down approaching traffic. When Willett, an experienced truck driver, went back to flag down oncoming cars, he was not only helping Baker but he also was helping Hinton and, we think, undoubtedly knew there was a risk involved in his undertaking and what the risk was. The risk he assumed was the very one which caused his injury — the risk of being struck by an approaching car. There was no emergency rendering it “absolutely necessary to obtain such assistance (as Willett’s) and without which the emergency conditions could not be overcome by the servant,” Baker. Standard Oil Company v. Adams, 271 Ky. 221, 111 S.W.2d 668, 669.

The judgment is reversed with directions to enter judgment n. o. v. for the defendants.


author: PALMORE, Judge.

text:
    FISCAL COURT OF JEFFERSON COUNTY et al., Appellants, v. CITY OF ANCHORAGE et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Rehearing Denied Oct. 1, 1965.

      E. P. Sawyer, Jefferson County Atty., Mark Davis, Jr., Louisville, for appellants.
    J. Donald Dinning, McElwain, Dinning, ' Clarke & Winstead, James L. Taylor, John Frith Stewart, Louisville, for appellees.
    Robert Matthews, Atty. Gen., Barkley Sturgill, Prestonsburg, Bert T. Combs, Lexington, Clay A. Copeland, Louisville, ami-cus curiae.
   PALMORE, Judge.

KRS 100.500 conferred zoning power upon the legislative bodies of third to sixth class cities, inclusive. With respect to sixth class cities only, the 1964 General Assembly transferred that power to “the fiscal court and county judge” of the respective counties in which sixth class cities are located. This declaratory judgment suit brought by the governing authorities of the City of Anchorage and defended by the governing authorities of Jefferson County, both as class representatives pursuant to CR 23, attacks the validity of the enactment, Senate Bill 260. The circuit court adjudged the act void because (1) it violates Const. § 51, (2) it is an “unwarranted infringement upon the powers of sixth-class cities,” and (3) it is vague and ambiguous. The county appeals.

Since the bill relates to zoning and planning in sixth class cities only, it was drafted in the form of a new subsection of KRS 81.040, but subsequently the Reviser of Statutes, deeming it more appropriately placed in Chapter 100 with the laws dealing specifically with zoning and planning, renumbered the new provision as KRS 100.-845. Cf. KRS 7.120(3), 7.140. As enacted, SB 260 reads as follows, subsection (1) being a re-enactment of existing KRS 81.-040 and subsection (2) being the new matter now under fire (italicized as in the original bill) :

“AN ACT relating to planning and zoning.
“Be it enacted by the General Assembly of the Commonwealth of Kentucky :
“KRS 81.040 .is amended to read as follows:
“(1) No city may be incorporated unless at least 125 inhabitants reside within the boundaries proposed to be established for the city. The boundary of any city, when incorporated, shall not exceed one-half mile in each direction, the form of the city being square, except that any incorporated taxing district having by its charter a grant of municipal powers and exercising them, and having at least 250 inhabitants residing within the boundary proposed to be established for the city, may be incorporated as a city with its present territorial boundaries.
“(2) Because of small population of sixth class cities and the dependence primarily upon the county wherein such cities are located, all planning and zoning regulations shall he adopted and passed by the fiscal court and county judge in the counties wherein sixth class cities are located. This provision applies only to the sixth class city within said county and not to other cities of larger size in the county. Sixth class cities located in more than one county shall be zoned by the fiscal court and county judge of the larger county. The regulations and powers applicable to sixth class cities contained in KRS 100.500 are to be performed by the fiscal court and county judge as above set out.”

For convenient reference, we quote the text of Const. § 51 in full:

“No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.”

It will be noted that the section does two things. (1) It limits the title and content of an enactment to a single subject. (2) It prohibits amending, extending or conferring a law by reference to its title only, without re-enacting and publishing so much of the law as is amended, extended or conferred.

The trial judge was of the opinion that SB 260 relates to two subjects, subsection (1) dealing with the creation of sixth class cities and subsection (2) with zoning and planning. In this instance the question is academic, and no doubt it is for that reason that the point is not insisted upon in appellees’ brief. If it be conceded that subsections (1) and (2) do not relate to the same subject, the one that is not germane to the title, which is subsection (1), is severable and can be eliminated without affecting subsection (2). Thompson v. Commonwealth, 159 Ky. 8, 166 S.W. 623 (1914). Thus there is neither a repeal nor a re-enactment of KRS 81.040 as it existed theretofore. The net effect is that subsection (1) of the act remains in force as KRS 81.040 and subsection (2) goes into effect as a new and independent act, the title and content of which relate to a single subject, planning and zoning.

The other charges leveled against SB 260 in the name of Const. § 51 are that it (a) amends KRS 100.500 by reference only and (b) “purports” to amend KRS 100.500 without re-enacting and publishing it at length. Conceding these points arguendo, the defects can be cured by excision of the last sentence, which simply expresses what otherwise would follow by unavoidable implication and therefore is not essential.

“The will and intention of a legislative body * * * is the vital part of its enactment. It is a primary rule of statutory construction that significance and effect should, if possible, be accorded every part of an act and render it operative. Sometimes, however, it is not possible to give force and effect to every word and phrase used, and the courts are often justified in deleting incongruous or superfluous language in order that the legislative will shall be preserved. Minor details, nonessentials or subsidiary portions if found invalid will not render an act void.” City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248, 255 (1948).

If the last sentence of the act is eliminated there is nothing left in it that either refers to KRS 100.500 or “purports” to amend it. It is then in reality an independent act. When an act does not purport to be an amendment to an existing law, but a new act, it is not necessary to set out or republish any part of an old law that may be changed or repealed. Board of Penitentiary Com’rs v. Spencer, 159 Ky. 255, 166 S.W. 1017, 1023 (1914). “Section 51 of the Constitution does not require that statutes which are amended or repealed merely by implication, or by the superseding effect of the later enactment, be republished and set forth at length.” Board of Trustees of Policemen’s and Firemen’s Retirement Fund of City of Paducah v. City of Paducah, Ky., 333 S.W.2d 515, 521 (1960).

KRS 100.500 gave to the legislative bodies of third through sixth class cities the power to regulate zoning. With respect to sixth class cities SB 260 gives that same power to “the fiscal court and county judge” in language that unmistakably excludes the legislative body of the city. It therefore repeals and supersedes KRS 100.500 to the extent of the inconsistency. Cf. Schultz v. Schultz, Ky., 332 S.W.2d 253 (1960); Golightly v. Bailey, 218 Ky. 794, 292 S.W. 320 (1927); Commonwealth ex rel. Denny v. Hargis Bank & Trust Co., 233 Ky. 801, 26 S.W.2d 1045 (1930). And this is so without reference to the last sentence of SB 260.

This phase of the case has been argued by the appellees as if the act had consisted only and entirely of the provision stating that the powers applicable to a sixth class city under KRS 100.500 will henceforth be exercised by the fiscal court and county judge. But that is not the case. We do not have before us and do not decide the question of whether it would have been valid under Const. § 51 had it consisted of that sentence alone.

So far as Const. § 51 is concerned, it is our opinion that if section (1) and the last sentence of section (2) of SB 260 were eliminated the remainder of the act would be sustainable as an independent act. And since the elimination of these portions would leave the effect of the act exactly the same as before, declaring them invalid would serve no useful purpose.

The second ground on which the act was adjudged invalid is so untenable that appellees have not suggested it in their brief on this appeal. Under the Constitution of this state cities just do not have any inherent powers of self-government. In the absence of some constitutional provision to the contrary they are completely subject to the will of the legislature. Board of Trustees of P. & F. R. F. etc. v. City of Paducah, Ky., 333 S.W.2d 515, 518 (1960).

A more difficult question is presented by the argument that the act is so vague that it cannot be given a rational meaning. The point is that in a host of other statutory sections between KRS 100.500 and the end of KRS Chapter 100 various powers and duties incident to the administration and enforcement of zoning and planning are assigned to the legislative bodies of third, fourth, fifth and sixth class cities. For sixth class cities, where do these powers and duties reside now? In defense of the act it is contended that each of these sections is amended by necessary implication, the fiscal court and the county judge being in effect substituted for the legislative body in each appropriate instance. The appel-lees flatly contend that statutes cannot be amended by implication, citing language of that apparent import from Hogg v. Caudill, 254 Ky. 409, 71 S.W.2d 1020, 1023 (1934), and Holcomb v. Mayes, Ky., 290 S.W.2d 486 (1956).

Holcomb v. Mayes neither holds nor suggests that a statute cannot be amended by implication. Following the principle that a general statute will not be construed as repealing an earlier specific statute unless they are necessarily inconsistent, it held that KRS 21.060, a general law relating to appeals, did not affect an earlier statute (KRS 160.210) providing for appeals in a special type of proceeding.

Hogg v. Caudill does contain the statement that a statutory provision may be repealed by implication, “but not so amended or modified.” However, the opinion does not cite any authority in support of that particular proposition, nor was the decision necessarily premised upon it. The courts in other states differ on the question. Cf. 82 C.J.S. Statutes § 252, pp. 419-420. We think the better approach is to give effect to the legislative will if it reasonably can be accomplished. When the intent and effect are clear, there is no more reason to say there can be no amendment by implication than there would be to hold that there can be no repeal by implication. “An implied amendment is an act which purports to be independent of, but which in substance alters, modifies, or adds to a pri- or act.” Sutherland, Statutory Construction, § 1913 (Vol. 1, pp. 365-366). “An act which does not purport to amend a prior act and which is ‘complete within itself’ is not an amendment within the scope of the constitutional provisions, although it may modify or alter some existing statute.” Ibid., § 1921 (Vol. 1, pp. 382-383). See Brown v. Hoblitzell, Ky., 307 S.W.2d 739, 745 (1957), in which KRS 25.280, authorizing appointment of trial commissioners in county courts, was given the effect of amending KRS 25.450 and 25.460 by necessary implication.

We acknowledge and re-affirm the familiar policy of law that looks with disfavor on repeals and amendments by implication and recognizes them only when they are clear and when it is necessary in order to carry out the obvious intent of the legislature. Consistent with the spirit of Const. § 51, which we have thus far discussed from a purely technical standpoint, the act to be given an amending or repealing effect must have been such that it is reasonably certain that the members of the legislative body themselves understood what they were doing and were not deceived. In addition, it is just as essential that the intended effect be outwardly clear to those who are to execute and be governed by the law. Whatever may be its shortcomings otherwise, we think SB 260 passes both of these tests. It is neither subtle nor deceptive. The members of the legislature could not have been under any misapprehension that they were doing other than transferring the power of zoning in sixth class cities to the fiscal courts of the counties in which such cities are located. That being so, the only sensible corollary is that ,all of the statutory functions heretofore exercised in that field by the legislative bodies of sixth class cities must now be exercised by the fiscal courts. This is equally clear from the standpoints of both subjective intent and objective effect.

The authority vested in the Legislative Research Commission by KRS 7.120 is broad enough to encompass the purely formal revisions necessary or appropriate to reflect the amendments effectuated by the act, whether or not that objective has been satisfactorily achieved in the 1964 supplement to the statutes.

In conclusion, we agree with the trial court that the words “fiscal court and county judge” as used in the act refer to the county judge as a member of the fiscal court, and not in his separate capacity as a judicial officer. Cf. Const. § 144; KRS 67.-040. Hence there is no attempt to confer legislative authority on a judicial officer in violation of Const. §§ 27, 28.

The cause is reversed with directions that a new judgment be entered in conformity with this opinion.


author: PRESLAR, Justice.

text:
    ROBINSON RAT HOLE SERVICE, INC., Appellant, v. RICHARDSON OILS, INC., et al., Appellees.
    No. 5721.
    Court of Civil Appeals of Texas. El Paso.
    June 21, 1965.
    Rehearing Denied Sept. 15, 1965.

      Strasburger, Price, Kelton, Miller & Martin and John H. Hall and Royal H. Brin, Jr., Dallas, for appellant.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, Edward W. Sampson, Jr., Fort Worth, for appellees.
   PRESLAR, Justice.

This is a common law negligence action for property damages in which a take-nothing judgment was entered based on jury findings that defendants were negligent and plaintiff was guilty of contributory negligence. Plaintiff, as appellant, assigns error as to the contributory negligence portion of the judgment only. We affirm the judgment of the trial court.

The appellant, Robinson Rat Hole Service, Inc., was engaged by defendants to drill a rat hole and mouse hole at the defendants’ well site in preparation for the moving by defendant of a drilling rig to the well to clean it out and work it over. “Rat hole” and “mouse hole” are oilfield terms for shallow holes drilled adjacent to the well hole for the placement of certain tools or parts of the drilling rig equipment during its operation. To drill the rat hole and mouse hole the Robinson two-man crew was using a small mobile drilling unit which was destroyed by fire during the drilling of the second hole when the drill bit struck a gas pipeline some four to six feet under the surface. It is for the destruction of the mobile drilling unit that this suit is brought.

The area around the well, some 75 feet by 150 feet, which serves as a foundation for the drilling rig and is called a “pad”, had been leveled and made ready for the drilling operations by the defendants prior to the entry thereon by the plaintiff. The locations of the rat hole and mouse hole were fixed at some point around the perimeter of the well hole, depending on which direction the drilling rig faced, and were fixed within a few inches’ tolerance by the dimensions of the drilling rig which the defendants would be using. Plaintiff’s employees inquired of defendants the direction which their rig would face, then measured it themselves to determine the exact location of the mouse and rat holes. Plaintiff’s employees did not know of the existence of the pipeline under the pad, but an employee of the defendants did have such knowledge. That employee was to be present to point out the location of the gas pipeline to plaintiff’s employees when they arrived to commence working at the arranged time of 8:00 A.M., but plaintiff’s employees arranged with another of defendants’ employees, who did not know of the pipeline, to dig the rat hole and mouse hole the night preceding the 8:00 A.M. date. That advance of time and the resulting mix-up brought about the accident, which occurred about midnight.

The jury found that the failure of defendants to warn plaintiff’s crew was negligence proximately causing the accident. By their answer to Issue 17, the jury found that “The Robinson Rat Hole crew drilled on the location without first determining whether there was a buried pipeline under the pad.” By Issues Nos. 18 and 19, it was found that such was negligence proximately causing the accident. This being a finding of contributory negligence, plaintiff cannot recover if the issues were proper and supported by the evidence.

Appellant does not question the form of the above issues, but says that they should never have been submitted, for the reason that its crew, as an invitee to the premises of the defendants, owed no legal duty to determine whether or not there was a buried pipeline under the pad where it was to drill the holes in question. We agree with appellant that it was an invitee (Snelling v. Harper, Tex.Civ.App., 137 S.W.2d 222, error dismissed, judgment correct), but we cannot agree that its crew owed no duty under the facts and circumstances of their entry into the underground premises to which they were invited. The facts before the jury were that plaintiff’s two employees were experienced oilfield workers. The one in charge of this operation, Eggleston, had been with plaintiff in this line of work for eight years, and testified to having drilled on other occasions where there were buried pipelines. On this occasion he recognized there was the potential danger of underground pipelines, said he knew he was supposed to look for pipelines and that he did look all over the pad, using the lights of his pickup truck. The site of their operations was in such proximity to a large gasoline plant that it was necessary for them to remove a portion of the fence surrounding the plant to position the mobile drilling unit. The exhibits and testimony show the gasoline plant was a well-lighted maze of pipes, roaring machinery and buildings one and one-half blocks in length. Plaintiff’s employees said they knew men were working there at the time, and that it would have taken one of them about a minute to go from their place of operation to the office building at the plant. Both employees said they knew that the products flowing to and from the plant were carried by pipelines. The record shows that information as to the location of pipelines was available in the plant office, and it was, in fact, from that source that the defendants’ employee found out about the pipeline under the pad. To men with the experience and knowledge of plaintiff’s crew, all of these things they saw on the surface should have been to them signs of danger. They thus were charged with the duty to exercise such degree of care as would be exercised by a person of ordinary prudence, knowing what these men knew and seeing what they saw.

In a common law action of this nature, the bare elements of recovery require that the plaintiff prove that the defendant owed a legal duty to plaintiff which he violated, and that plaintiff suffered injury which was proximately caused by such violation. Plaintiff must be free of fault proximately causing his injury, for one cannot recover where he brings about his own injury; nor can he recover where such injuries are caused by both himself and the defendant. In the case before us, the jury was given definitions of negligence and proximate cause. With these definitions as guides the jury convicted plaintiff and defendant of negligence proximately causing the accident. We see no error in determining this case within the usual framework or pattern of a negligence suit, though it be an “invitee-owner” situation as to which our courts have established a jungle of rules for determining the respective duties of the parties under innumerable circumstances. It is under those rules that the plaintiff-appellant in this case seeks to avoid the finding of contributory negligence against him and have this court determine as a matter of law that he owed no duty to determine if there were pipelines in the premises to which he was invited. We use the phrase “in the premises” because the premises here involved are subterranean. Plaintiff’s work was to be performed underground. He was an invitee into the subsurface where neither he nor the owner could see. The liability of the owner to the invitee is predicated on the owner’s superior knowledge of the conditions existing on the premises. His duty to warn the invitee of dangers is founded on his knowledge of them. No discussion is here necessary as to the situations where knowledge may be imputed to him for failure to inspect, lapse of time, etc., for we are not here concerned with the owner’s duty except as reference to it is necessary for an understanding of the invitee’s duty. Broadly speaking, if the owner has knowledge of dangers, he owes a duty to the invitee concerning them; if he has no knowledge, he owes no duty. If the invitee has knowledge of the danger, then the superior knowledge of the owner is erased and there is no duty. The situation where the invitee has knowledge of the danger has led to no little confusion in the discussion of the rule as to whether his knowledge places a duty on him or relieves the owner of his duty. In either event, the end result is the same in that the invitee cannot recover from the owner if he, the invitee, had knowledge of the danger; so that is the significant inquiry. The holdings of our Supreme Court are that ordinarily a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization and appreciation. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368; McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Wesson v. Gillespie, 382 S.W.2d 921. The duty imposed on the parties to the invitee-owner relationship can then be said to be based on their knowledge of the danger involved; knowledge from seeing the thing which is dangerous — open and obvious; knowledge by being told of the danger — warned; knowledge gained over a period of time — experience; knowledge from whatever source places a duty to act accordingly. Knowledge of a hidden danger imposes a duty as much as knowledge of any other type of danger. If the danger exists and there is knowledge of it, the duty is imposed. At the premises here involved there were things visible which, coupled with the knowledge of such things on the part of plaintiff’s employees, became signs of danger. Their knowledge of petroleum products flowing to and from the plant by pipeline, and the proximity of this huge plant with its maze of pipes visible, were signs of danger. To the ordinary person these visible things might not mean much, but to these men of experience, they were signs of danger. At least, whether or not they were, poses a fact question which precludes us from finding, as a matter of law, that they owed no duty to determine whether danger existed. It is analagous to an “open and obvious” situation in which it is said that the invitee cannot close his eyes, but has a duty to look. There, looking is the standard of care required. Here, looking would do no good, but invitee must exercise a similar standard of care — inquire —before plunging into the sub-surface premises to which invited.

Appellant makes assignments of error that there is no evidence to support the jury’s answers to the above-cited issues.. The assignment being that there is no evidence, we look only to the evidence which supports the findings, and, as will be seen from the facts herein set out, there is some evidence to support each of the issues.

All points of error have been considered and all are overruled. The judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    Ex parte Tony Lynn FRANKLIN, a Minor.
    No. 7524.
    Court of Civil Appeals of Texas. Amarillo.
    June 21, 1965.
    Rehearing Denied Sept. 7, 1965.

      Huffaker & Green, Tahoka, for appellant.
    Huff & Bowers, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal by Lloyd Martin Franklin, father of Tony Lynn Franklin, a child born on February 22, 1961, from an order of the 140th District Court sitting as a juvenile court of Lubbock County from a judgment of that court denominated “Order of Temporary Custody” awarded by the court to Mrs. Pauline Johnson and her husband, Horace H. Johnson, “pending a hearing on the merits herein.”

The parties to whom temporary custody was awarded had kept the minor child in their home since June 27, 1961, until October 14, 1964. At the time the Johnsons acquired physical custody the child was released to them by its mother, who obtained custody of such child in her divorce from Lloyd Martin Franklin two months later. The mother decided she would join the Navy the following January and relinquished custody of the child to its father after it had been granted to her in the divorce proceeding. However, the John-sons continued to keep the physical custody until October 14, 1964, at which time the father came and took the child away. The record shows the father had made payments to the Johnsons of approximately $50.00 each month for the support of the child for a year and ten months prior to June 16, 1964, at which time Mrs. Johnson filed a petition alleging the child to be dependent and neglected. This case must be reversed for another reason, so a discussion of the amount of the payments is immaterial in this opinion.

The hearing from which the above described judgment and order was issued by the court was had on November 13, 1964. Prior to the hearing the father demanded a jury and deposited the customary jury fee. A jury was denied by the court and that point, among many others, was properly preserved. We believe this one point is decisive of the case.

Article 2334, Vernon’s Ann.Tex.Civ.St., under Title 43 styled “Courts-Juvenile,” the same title making provision for a “dependent or neglected child” provides:

“Any person interested in any case under this title may appear therein and may be represented by counsel, and may demand a jury as in other cases. If no jury is demanded, it shall be deemed to have been waived. The judge of the court, of his own motion, may order a jury to try such case.” (Italics added.)

Neither party to the suit has cited any case directly construing the statute as to whether the right of a jury trial provided in the statute just quoted is directory or mandatory, nor have we found one. We hold it is mandatory and that a parent is entitled to have a jury pass upon the important question as to whether his or her child is a dependent or neglected child within the purview of Article 2330 et seq., V.T.C.S.

The Dallas Court of Civil Appeals in Bee v. Robbins, Tex.Civ.App., 303 S.W.2d 827 (N.W.H.) said:

“The question of the dependency of a child is a fact question, which in jury cases must be submitted to the jury if the evidence is controverted, or is sufficiently contradictory to raise a doubt, or if the only testimony comes from an interested witness. The finding of the jury is binding on the court unless it is contrary to the overwhelming weight of the evidence.”

In Mitchell v. Davis, Tex.Civ.App., 205 S.W.2d 812, 12 A.L.R.2d 1042 (writ refused) the court held:

“Also properly left for determination by the jury was the fact question of neglect relative to appellant. ‘Whether a child is a neglected child under the law is a fact question. 43 C.J.S. Infants § 98, page 230. The court having submitted such question to the jury under appropriate instructions and the jury having found that the children were neglected children, such finding being supported by ample evidence, is binding upon this court.’ ”

Article 4639a, as amended Acts 1961, 57th Leg., p. 663, ch. 305, sec. 1, provides in part as follows:

“In any hearing held in this State concerning the custody of a child, whether pursuant to a divorce cause or not, any party to the hearing may, upon assumption of jury costs, demand a jury to determine custody of the child, and the judgment of the court must conform to that determination.”

Prior to the amendment just quoted the finding by a jury was only advisory in child custody cases. Bee v. Robbins, supra. Prior to such amendment it had even been held that the court might refuse to permit a jury trial in child custody matters. Erwin v. Williams, Tex.Civ.App., 253 S.W.2d 303 (N.R.E.) and cases there cited. Our court in construing the 1961 amendment to Article 4639a has held:

“This amendment was obviously intended to make juries’ verdicts relative to custody of minor children binding upon the court and not merely advisory.” Fatheree v. Eddleman, Tex.Civ.App., 363 S.W.2d 784 (N.W.H.).

The so-called “Order of Temporary Custody” made a judicial determination that:

“Tony Lynn Franklin, is hereby declared and found to be a dependent and neglected child as that term is defined by the laws of the State of Texas at the time of the filing of this petition on June 16,1964, and at the time of this hearing.”

It is true that only temporary custody was awarded which was an interlocutory judgment, not final and not subject to appeal. Affolter v. Affolter, Tex.Civ.App., 389 S.W.2d 742 (N.W.H.); Goodman v. Goodman, Tex.Civ.App., 224 S.W. 207 (N.W.H.); Wardlaw v. Wardlaw, Tex.Civ.App., 267 S.W.2d 250 (N.W.H.); Morrow v. Gallant, Tex.Civ.App., 312 S.W.2d 526 (N.W.H.); Mendoza v. Baker, Tex.Civ.App., 319 S.W.2d 147 (N.W.H.). However, there is not anything in such order to indicate the finding of dependency and neglect was temporary. In fact, it is difficult to see how the court on November 13, 1964, could temporarily judicially find the child to be dependent and neglected on the dates stated. Thus, the father upon a final hearing for custody would be faced with a final decree that the child was on such dates a dependent and neglected child.

Our opinion here could not change the ultimate proceedings except as to that part involving the dependency and neglect question, since the custody award was only temporary.

Therefore, we believe the father of the child is entitled to have a jury pass upon' whether his child was dependent and neglected on the dates found and not have to be faced with that handicap on the final custody hearing. The judgment of the trial court wherein it finds the child to be dependent and neglected on the dates named is reversed and remanded. There are numerous other serious questions in the case; but since we are certain of our disposition of the point discussed, it would only extend this opinion to discuss the other questions.

The judgment of the trial court is reversed and remanded.