text:
    Robert JONES, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      John T. Fowler, Louisville, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Edwin Schroering, Commonwealth’s Atty., Louisville, for appellee.
   CULLEN, Commissioner.

In Jones v. Commonwealth, Ky., 389 S.W.2d 927, this Court directed the Jefferson Circuit Court (Criminal Branch, First Division) to grant Robert Jones, Jr. a hearing on his RCr 11.42 motion seeking to vacate a 1962 judgment under which, upon his plea of guilty to a charge of robbery, he had been sentenced to an eight-year term in the penitentiary. The allegations which we held to require a hearing were that court-appointed counsel refused to defend Jones if he would not plead guilty, and that the plea was made under duress.

In accordance with the direction of this Court the circuit court appointed counsel for Jones and granted him a full hearing, at which a considerable amount of testimony was taken. At the conclusion of the hearing the court found that there had been no duress or coercion — only reasonable persuasion. The court found also that Jones’ counsel for the trial had not refused to defend Jones if he would not plead guilty. Accordingly, the court overruled the motion.

The findings are amply supported by the evidence. Jones was in a precarious position. He was charged with armed robbery. On a previous trial he had been found guilty and the jury had imposed the death penalty. This conviction had been reversed on appeal (in an unpublished opinion), but only for trial errors and not on the ground of insufficiency of the evidence. The record on the 11.42 hearing indicates that Jones’ counsel and friends simply pointed out to him the serious danger of his being given another sentence of death, stated to him their belief that his interests would best be served if he were to plead guilty to a reduced charge of plain robbery, and pleaded with him to take the latter course. The record does not warrant a conclusion that there was any duress or coercion other than that inherent in the predicament in which Jones had placed himself. We find nothing to indicate that there were pressures or inducements such as would make it unfair to hold Jones to his plea. Cf. Higbee v. Thomas, Ky., 376 S.W.2d 305.

It is our opinion that the circuit court properly overruled Jones’ motion.

The appointed counsel for Jones moved this Court for an order requiring the state to reimburse him for his out-of-pocket expense in the typing and duplicating of the brief for Jones on this appeal. The motion was overruled, but counsel has sought to renew it. Regardless of the question of renewability, the motion does not present a matter proper for original action by this Court. Where counsel seeks any relief personally the requirement always has been that the motion be made in the lower court and, if denied, that counsel make himself a party appellant. Cf. Carter v. Carter, Ky., 382 S.W.2d 400; Bobbitt v. Bobbitt, 297 Ky. 28, 178 S.W.2d 986; Warner v. Commonwealth, Ky., 400 S.W.2d 209.

For guidance, we deem it appropriate to say that the question sought to be presented here, of reimbursement for out-of-pocket expense, is in our opinion not substantially distinguishable from the question of payment of a fee for services as was presented in Warner v. Commonwealth, Ky., 400 S.W.2d 209; we note that the General Assembly has not had an opportunity since publication of the opinion in Warner to act upon the problem; and until then we shall continue to be disposed to defer to legislative action.

We deem it appropriate also to call attention to the provision of RCA 1.200(e) for relief from hardship in respect to brief requirements.

The judgment is affirmed.


source: Caselaw Access Project

author: PLEAS JONES, Special Commissioner.

license: Public Domain

text:
    Ellen LUNSFORD et al., Appellants, v. Henry WARD, Commissioner, Department of Highways, Commonwealth of Kentucky, Appellee. Hiram HOGG et al., Appellants, v. Henry WARD, Commissioner, Department of Highways, Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.
    Arthur L. Brooks, Jr., R. J. Turley, Lexington, for appellants.
    H. C. Smith, Dept, of Highways, Frankfort, W. O. Gilbreath, Lexington, Robert Matthews, Atty. Gen., Frankfort, for ap-pellee.
   PLEAS JONES, Special Commissioner.

These consolidated actions were instituted by the appellants in the Woodford Circuit Court to enjoin the appellee, Commissioner, Department of Highways, Commonwealth of Kentucky, from removing certain advertising signs erected and maintained by the appellant, Sherrod Sign Company, adjacent to U. S. Highway 60 By-Pass, near Versailles, Kentucky. Sherrod Sign Company was maintaining these signs, or billboards, under leases obtained from the appellants, Lunsford and Hogg, owners of the property upon which the signs were located.

From an adverse judgment in the circuit court dissolving temporary injunctions and directing the signs to be removed at the cost of the appellants, they have appealed.

The only question to be determined on 'this appeal is: Whether U. S. Highway 60 By-Pass is a “limited access” highway within the statutory definition set out in KRS 177.220?

For a proper determination of this question, it is necessary to review briefly the facts.

On June 26, 1958, the Department of Highways, by official order, declared the Versailles By-Pass to be a “limited access” facility. This by-pass begins approximately two thousand feet east of the junction of U. S. 60 and U. S. 62 and extends around the northeast side of Versailles, joining that portion of U. S. 60 connecting Frankfort and Versailles to that portion of U. S. 60 connecting Versailles and Lexington. The total length of the by-pass is approximately one and one-half miles.

Sherrod Sign Company has erected and maintains seven billboards on the properties of Ellen Lunsford and Hiram Hogg adjacent to U. S. 60 By-Pass and within 660 feet of the right of way. These signs, or billboards, advertise various motels and restaurants.

At the present time, the by-pass is intersected at grade level by Douglas Avenue and, in addition, the Department of Highways has planned and built into the by-pass several other points of direct access at grade level from adjoining private property.

There are no overpasses, underpasses, service roads, entrance ramps or exit ramps constructed in conjunction with U. S. 60 By-Pass.

Appellants contend that since there has been no appreciable limitation of access to vehicular traffic to the by-pass, the designation by the Department of Highways of the by-pass as a “limited access” highway does not make it so. They do not dispute the authority of the Department of Highways to decide where and when to build such facility, but they insist that if By-Pass 60 does not conform to the character of a “limited access” highway, as contemplated and designed by the Legislature, then simply naming it “limited access” does not make it so.

The appellee admits that when the by-pass was constructed, nine abutting property owners were allowed access to it. However it is insisted that since completion of the construction, one of these has been eliminated and that after construction, and up to the present date, seven owners of property adjacent to the by-pass have been denied access and that certain interchanges have been eliminated. It contends that by the construction of the by-pass, through traffic is allowed to circumvent the City of Versailles at a high rate of speed and connect with high-speed highways on the two sides of the city. It is the contention of appellee that U. S. 60 By-Pass is a “limited access” highway as defined by the provisions of KRS 177.220.

KRS 177.220 defines “limited access facility” as follows:

“For the purpose of KRS 177.220 to 177.310, a limited access facility is defined as a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses and other commercial vehicles shall be excluded; or they may be freeways open to use by all customary forms of street and highway traffic.”

KRS 177.250 gives the Department of Highways discretion to purchase property and property rights for limited access facilities in the same manner as is provided a regular road, turnpike or interstate condemnation.

The Department of Highways has wide discretion in planning and designating highways. It may establish, regulate, vacate, alter, improve and maintain limited access facilities for public use when it deems that traffic conditions, present or future, will justify such special facilities. KRS 177.-230.

It may acquire private or public property and property rights for limited access facilities in the same manner as it acquires such property or property rights in connection with highways and streets within its respective jurisdiction. KRS 177.250.

It also is authorized to prohibit billboard advertising upon or within 660 feet of the right of way of any limited access highway. KRS 177.840-KRS 177.850.

There is a public interest in the construction and maintenance of public highways. The Department of Highways is authorized by the Legislature to take such steps as are necessary in the construction of highways so as to facilitate the movement of traffic, improve the efficiency of highway operations, and to increase the enjoyment of pub-lie travel and preserve the system’s value as a public asset. Moore v. Ward, Ky., 377 S.W.2d 881.

U. S. 60 By-Pass was designated a “limited access” facility before it was built. The Department of Highways considered the best route for a by-pass, considering the growth of Versailles, the amount, nature and concentration of traffic. This it had the authority to do pursuant to the definition rendered by the Legislature.

In light of the foregoing, it is our conclusion that U. S. 60 By-Pass is a “limited access” facility as set out and defined in KRS 177.220 and the judgment of the Chancellor is correct. The question of sovereign immunity not having been raised in this case, we express no opinion as to its applicability. The judgment is affirmed.


author: STEINFELD, Judge.

text:
    Carl CABE, Commissioner of Labor, etc., Appellant, v. James A. TOLER et al., Appellees. James A. TOLER, Cross-Appellant, v. Carl CABE, etc., et al., Cross-Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      Paul D. Rehm, Versailles, Martin Glazer, Dept, of Labor, Frankfort, for appellant and cross-appellees.
    M. B. Fields, Hazard, for appellee and cross-appellant, James A. Toler.
    J. W. Craft, Jr., Craft & Haynes, Hazard, for appellee, Commonwealth, Dept, of Economic Security.
    J. Keller Whitaker, Robert Matthews, Atty. Gen., Frankfort, for Workmen’s Compensation Bd.
   STEINFELD, Judge.

James A. Toler worked on a farm in 1963 and had last worked in coal mines in 1964 after which he attended a small garden at his home. Thereafter he sought no gainful employment until he was employed by the Department of Economic Security of the State of Kentucky (hereinafter called Department) in the Unemployed Father’s Program. He had been working in that program for about three months, when on July 9, 1964, while he was riding on a truck carrying lumber, the load slid causing Toler to fall and be injured. He was taken to the Appalachian Hospital in Hazard, Kentucky for treatment.

Toler filed a claim for benefits under the Kentucky Workmen’s Compensation Act. It was stipulated by Toler and the Department that the Department had elected to and was operating under that Act; that Toler had received an injury which arose out of, and in the course of his employment; and that due and timely notice of the accident and injury was given to the employer. Lay and medical testimony was introduced by Toler, and medical testimony by the Department. Later the Department moved the Workmen’s Compensation Board (hereinafter called Board) to make Carl Cabe, Commissioner of Labor, Custodian of the Special Fund (hereinafter called Commissioner) of the Commonwealth of Kentucky a party to the proceedings under KRS '342.120(1) (b). The motion was sustained and the Commissioner was made a party defendant. The Special Fund was formerly called Subsequent Claim Fund.

The Board found that Toler was totally and permanently disabled and that his average weekly wage was $26.54. It awarded him $17.25 per week so long as he continued to be totally and permanently disabled, but not exceeding 425 weeks, together with medical, surgical and hospital expenses. The Board also found that the entire award should be paid by the Department and dismissed the Commissioner.

The Department filed a petition for review in the Perry Circuit Court. KRS 342.285. The Court reversed the Board, and remanded the action with directions that the entire award be assessed against the Special Fund. It also found that the average weekly wage was $18.90 and directed the Board to enter an award according to its findings.

The Commissioner appealed to this Court, claiming among other things, that the lower court substituted “its judgment for that of the Board as to the weight of the evidence on questions of fact.”

Appellee, Department, contends that “the sole question to be determined by this appeal is whether or not there is any reliable or probative evidence to sustain the Board’s finding.”

A cross-appeal was filed by Toler, in which he claims that the average weekly wage of $26.54 as determined by the Board should be sustained. The Department and Commissioner contend that the amount awarded by the Board was incorrect and that the average weekly wage of Toler was only $18.90. There is no contention that Toler was not totally disabled by the accident.

KRS 342.285 stated that “An award or order of the board as provided in KRS 342.275, if application for review is not filed as provided for in KRS 342.280, shall be conclusive and binding as to all questions of fact * * * ”. KRS 342.285 authorized either party to appeal by petition and state “fully the grounds upon which a review is sought, and assign all errors relied on.” The petition for review which was filed in the lower court claimed that the Board acted excessively; that the decision and award did not conform to Chapter 342 of the statutes; that the award was “clearly erroneous on the basis of reliable, probative and material evidence contained in the whole record;” that “The decision and award (was) arbitrary, capricious and characterized by abuse of discretion” and was not warranted. It also charged that “The Board erred in finding” the average weekly wage of Toler to have been $26.54. It claimed that the Commissioner should not have been dismissed. The jurisdiction of the circuit court was limited by KRS 342.285(3).

The issue of the amount of the award having been properly before the circuit court, it had the authority to determine whether or not the Board fixed the correct amount. KRS 342.285(3) (c).

This case is controlled by the provisions of KRS 342.140(1) prior to the amendment which became effective August 1, 1964. At that time the statute directed that “Compensation shall be computed at the average weekly wage earned by the employee at the time of injury reckoning wages as earned while working at full time. ‘At full time’ as used herein means a full working day for five days in every week of the year regardless of whether the injured employee actually worked all or part of the time * * * Since there was no evidence regarding Toler’s wages except a stipulation that he was earning $115.00 per month, the average weekly wage should have been determined by dividing 52 into $1,380.00, the result being $26.54, the amount correctly determined by the Board.

We now come to the issue of whether or not the Special Fund should be required to pay all or any part of the award. KRS 342.120(1) provided that on application of the claimant or either party the “Subsequent Claim Fund” now called the “Special Fund” may be made a party to the proceedings, and when made a party the Board must determine whether or not the degree of disability was “caused by the combined disabilities” and if so, whether the disability “is greater than that which would have resulted from the subsequent injury or occupational disease alone.” KRS 342.120 (3). In KRS 342.121 the Board was directed to refer controversial medical questions to a physician appointed by the Board who should investigate and report to the Board on the medical questions involved. The latter statute provided that the physician appointed by the Board should determine and furnish information to the Board for an apportionment of liability between the employer and the Subsequent Claim Fund and should report “in writing with respect to all medical questions at issue or necessary to the apportionment of disability between the subsequent injury and the prior existing disability at the time of employment.” The report of Dr. Marion G. Brown did not furnish the information required by the statute. Mary Helen Coal Corp. v. Anderson, et al, Ky., 262 S.W.2d 841. It said “* * * this man in this present condition is, of course, totally disabled and apparently was able-bodied at the time of the injury event. Therefore, it is medically reasonable that this event is the cause of his disabled condition, whether this is emotional or organic.” He recommended that further studies be made to give the Board the information it needed to answer the question. The Commissioner did not except.

The medical testimony of the other four physicians is just as inconclusive. The doctors generally agreed that it was possible that the injury of July 1964 aroused a dormant condition, hut there is no testimony, either lay or professional, that this was more than a possibility. Therefore, neither the Board nor the circuit court had before it substantial and competent evidence required for “the proper apportionment of liability.” Dupriest, et al v. Tecon Corporation, Ky., 396 S.W.2d 778.

Even if it be conceded that there was a conflict in evidence before the Board (which we do not find) neither the circuit court nor this Court could determine the weight of that evidence. Neagle v. State Highway Department, Ky., 371 S.W.2d 630. The circuit court was in error in finding that “a dormant, non-disabling disease condition was aroused or brought into disabling reality by reason of” the accident and injury to Toler.

The Department in its petition for review to the circuit court claimed that “The Board erred as a matter of law in dismissing the application as to the Special Fund.” This was a sufficient allegation to perpetuate the exceptions it filed to the report of Dr. Marion G. Brown, which exceptions the Board “passed to the consideration of the case on its merits.” It is our opinion that the lower court was in error in not returning the case to the Board with directions to sustain the exceptions and to follow KRS 342.121.

The judgment is reversed with directions that this claim be referred to the Board for action in conformity with this opinion.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Lucy K. DOOLIN, Widow et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Dept, of Highways, Frankfort, Perry R. White, Jr., Lexington, for appellant.
    Delbert Eagle, Eagle & Cox, Lancaster, for appellees.
   DAVIS, Commissioner.

Verdict and judgment in the sum of $4,-500 were rendered for the appellee-property owners in this highway condemnation proceeding. The appellant Department of Highways as condemnor appeals asserting that: (1) The verdict is excessive and not supported by evidence of sufficient probative value to sustain it; (2) error was committed in permitting appellees to present evidence that the property had been so changed as to prevent commercial development and also damaged as a farm, and as to latter use, in permitting evidence respecting personal inconvenience to the owners; (3) error was committed in allowing evidence of value based on subdivision and commercial use since it was shown that no such use was contemplated; (4) the jury’s verdict reflects that the jury ignored the instructions; (5) the error in admitting incompetent testimony was not cured by later admonition striking the evidence.

Before the taking appellees owned a farm containing 122 acres, and which had frontage of 530 feet along Lexington Street, U. S. Highway 27 North, near Lancaster. The frontage before the taking lay slightly lower than the existing highway grade; the land sloped gently downward away from the road. There was no dwelling on the farm, but it had a substantial stock barn, tobacco barns and appurtenant sheds. None of the improvements was taken.

The requisite taking consists of a strip along the frontage, varying in depth from eight to fourteen feet, averaging about twelve feet in depth. This strip embraces 0.15 acres. In addition to the strip taken the Department utilized an adjacent strip as a temporary easement; this strip contained 0.41 acres, and the parties stipulated that its rental value was $41.00.

The surface of the land as it existed before the taking lay somewhat below the surface of the existing highway, averaging some three or four feet below the edge of the existing pavement. Prior to the taking the existing highway surface was 21-22 feet wide; after the taking and new construction the width of the highway will be 48 feet. Since the land slopes away from the highway it was necessary to provide a fill adjacent to the new roadway. Inasmuch as the elevation of the land declines as it leaves the highway, the elevation of the land abutting the new right-of-way line is farther below the center of the new highway than was the elevation of the land abutting the old road.

The only evaluation witness for the Department fixed the before value at $61,700 and the after value at $61,000 — a difference of $700. This witness considered farming as the highest and best use of the property, before and after the taking. Comparable sales were related by the witness as substantiating his evaluations.

For the appellees two witnesses were offered for evaluation purposes, Appellees’ witness Layton fixed the before value at $85,000 and the after value at $67,500, but the trial court ordered his evidence stricken and admonished the jury not to consider it. This was done because the witness had used an improper basis for fixing his evaluations. The other appraisal witness for ap-pellees placed the before value at $90,000 and the after value at $70,000, for a net difference of $20,000. As noted, the jury’s verdict was for $4,500; it found the before value to be $79,300 and the after value as $74,800.

The jury’s verdict reflects a higher after value than any witness suggested, although the amount of the verdict was well within the range of the $20,000 difference in value expressed by witness Ledford.

We have considered all of the factors and reasons advanced by appellees’ witness and are unable to find in them any basis upon which to uphold the $4,500 verdict. Since the litigants stipulated that the temporary easement’s value was $41.00, the award is $4,459 for 0.15 acres. It is not suggested that frontage has been diminished; in fact it is conceded that the new frontage is slightly greater than before in view of the widening of the side lines of the tract as they leave the road. If we consider the $4,500 as the award for the 0.15 acres, a projection of the figure results in a value of $30,000 per acre. We do not suggest that such a projection is an infallible test, but when the result of the projection is so flagrantly beyond any of the evaluations and comparables as in the present case it does afford basis for adjudging the verdict as excessive. See Commonwealth, Dept. of Highways v. Collins, Ky., 409 S.W.2d 506 (dec. Dec. 16, 1966). We are persuaded that the verdict is not supported by evidence of sufficient probative value to sustain it within the rationale of Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.

Since there may be another trial of the case we advert to the other questions presented on appeal. Complaint is made of the admission of evidence on inconsistent theories. Appellees adduced testimony relating to the inadequacy of the entrance way for heavy farm loads and evidence of the diminution of value for residential and commercial sites. Of course it is possible for a property to have dual, compatible uses, and each of them may be damaged. If the evidence reflects that one use will necessarily preclude a different kind of use, some precaution should be taken to avoid confusion in submitting the matter to the jury. It seems plain that any substantial farm usage of the tract would preclude development of it for commercial or residential purposes. The inconsistencies in evidence have contributed to our conclusion that the verdict is excessive. Cf. Commonwealth, Dept. of Highways v. Scott, Ky., 385 S.W.2d 330; Commonwealth, Dept. of Highways v. Robinette, Ky., 386 S.W.2d 719. Upon another trial it will be appropriate for the witnesses to be examined as to the possibility that one or more of the usages suggested by them will preclude all or any portion of a separate type use. The witnesses should be required to express their evaluations in relation to their opinions of the highest and best use of the property.

If the evidence reveals adaptability for commercial or residential purposes, coupled with existing market demands in the community, presently or reasonably expected in the immediate future, it will be appropriate to admit evidence of the market value of the property for such uses. Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302; Commonwealth, Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922.

The other claims of error need not be discussed as the incidents complained of likely will not recur. We note, however, that the jury’s verdict which reflected a higher after value than testified to by any witness lends basis for our view that the verdict should be set aside. Even though the jury’s finding may have been favorable to the appellant from a mathematical standpoint, it reflects that the jury disregarded the instructions in part and reached into “thin air” for a significant part of the verdict. Cf. Commonwealth, Dept. of Highways v. Cleveland, Ky., 407 S.W.2d 417, 418, 420.

The judgment is reversed for proceedings consistent with this opinion.


text:
    Lennis R. DYKES, etc., Appellant, v. A. J. ALEXANDER et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      George R. O’Bryan, Witten & O’Bryan, Louisville, for appellant.
    Curtis, Curtis & Rose, Louisville, for ap-pellees.
   WOODARD C. TIPTON, Special Commissioner.

This is an action wherein a five-year-old boy was bitten by a dog. At the close of all of the evidence the trial judge directed a verdict for the owners of the dog.

The question presented is whether or not the court erred in directing a verdict when KRS 258.275(1) is read in conjunction with the facts of the case at bar.

On August 26, 1963, the appellant, five years of age, and his sister, three years of age, entered the fenced-in back yard of appellees and appellant was severely bitten • by a dog which appellees had owned about two years, and appellees testified the dog was not vicious and had never previously tried to bite anyone. The appellees did not know the appellant was on the premises until the appellee, Mary Alexander, heard the noise and came out of the house and the dog was then backing off the appellant. Appellant stated two children opened the gate and let him in the back yard but he did not know who they were. There is an inference that the children of appellees may have invited the appellant into the fenced-in back yard thereby making him a social guest instead of a trespasser, yet the mere inference is insufficient to justify a finding to this effect. Appellant and his sister lived down the street about one and a half blocks from the appellees. The fence was about four feet high and had a gate which was kept closed.

The dog bite law in Kentucky has gone through several changes in that the common law prevailed until Kentucky Statute, Section 68 (later 68a) was passed in 1893, then in 1918 Section 68a was left out of the statutes and the common law again prevailed until in 1954 the General Assembly enacted KRS 258.275(1) which is still in effect.

Old Kentucky Statute 68a should be considered along with the cases interpreting it because it changed the common law with its so-called “One Free Bite” or “Knowledge of Viciousness” Rule to one of strict liability on the part of the owner or keeper of the dog, subject to certain defenses. This section 68a read as follows:

“Every person owning or harboring a dog shall be liable to the party injured for all damages done by such dog, *

The present statute KRS 258.275(1) reads as follows:

“Any owner or keeper of a dog which has killed or injured livestock or poultry or which has bitten such livestock or poultry so severely as to necessitate its destruction, or injured or damaged any person or property, shall be liable to the owner of such livestock or poultry, or person in a civil action for all damages and costs, or to the Commonwealth.” (emphasis by this court)

For the interpretation of the old statute by the court and the history of the dog law these decisions are cited: Brown v. Weathers (1933), 247 Ky. 306, 57 S.W.2d 4; Koestel v. Cunningham (1895), 97 Ky. 421, 30 S.W. 970; and Davidson v. Manning (1916), 168 Ky. 288, 181 S.W. 1111.

It has been held that when statutes are similar the construction of the other statute may he considered, as it does not appear that KRS 258.275(1) has been construed in this court. Button v. Hikes (1943), 296 Ky. 163, 176 S.W.2d 112, 150 A.L.R. 779.

It does not appear in the record on what basis the trial judge directed the verdict for the appellees. This court does not consider that the legislature intended to impose strict liability on the owner’s or keeper’s part under any and all circumstances. Bush v. Wathen (1898), 104 Ky. 548, 47 S.W. 599; Vandercar v. David (Fla.App.), 96 So.2d 227, 66 A.L.R.2d 912.

In the case at bar it appears that the appellant being under seven years of age cannot be guilty of contributory negligence. Lehman v. Patterson (1944), 298 Ky. 360, 182 S.W.2d 897.

Ordinarily trespassing children occupy the same position as trespassing adults, except for special responsibility in case of attractive nuisances. The court has recognized that this is a harsh rule as applied to infants, but the rule still applies. Louisville & Nashville Railroad Co. v. Spence's Adm'r. (1955), Ky., 282 S.W.2d 826; Chesser v. Louisville Country Club (1960), Ky., 339 S.W.2d 194.

This court is unable to find where it has ever been held that a dog is an attractive nuisance and is per se of a dangerous character, nor is everything attractive to a child an attractive nuisance. Jarvis v. Howard (1949), 310 Ky. 38, 219 S.W.2d 958.

A person who is on the premises of another, not as an invitee or a licensee or there under an implied invitation, can only be a trespasser. Where a person is on the land of another without either their knowledge or consent and is a trespasser, then the landowner owes him no duty except to exercise ordinary care to avoid injury to him after his position of peril is discovered, and he must refrain from inflicting or exposing him to wanton or wilful injury or setting a trap for him. Bradford v. Clifton (1964), Ky., 379 S.W.2d 249.

In a California case a five-year-old child was bitten while in a back yard and the state statute read as follows:

“The owner of any dog which shall bite any person while such person is * * * lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages * * *. A person is lawfully upon the private property of such owner within the meaning of this act * * * when he is on such property upon the invitation, express or implied, of the owner thereof.”

And so this statute provided for strict liability if the person was lawfully on the premises and he was there lawfully if there pursuant to an express or implied invitation and every other person is a trespassser. In the California case a mother brought her child and left him near the gate to a fenced-in back yard while she went into the house of the owner of the dog. The child entered through the gate into the back yard and was bitten by the dog. The court held that the child was a trespasser and was not lawfully on the owner’s property while in the back yard and the owner was not liable because the owner of a dog is not an insurer. Fullerton v. Conan (1948), 87 Cal.App.2d 354, 197 P.2d 59.

In the case at bar there was no showing that the dog had ever previously bitten anyone or that the dog was vicious or that either of the appellees had knowledge of same. The dog was where he had a right to be and certainly the owner in keeping a dog not thought to be vicious in his fenced-in back yard was not keeping him at his peril so as to be liable to a trespasser to whom he owed no duty. The evidence was that appellees did not know the appellant was on their premises. For an annotation of cases involving injury by dog, see 66 A.L.R.2d 916 (1959).

Judgment affirmed.

HILL, J., dissents.


author: PALMORE, Judge. OSBORNE, Judge.

text:
    Chic GOSS, President & Process Agent of Chic Goss, Inc., et al., Appellants, v. Rose Burke BISSET, Appellee.
    Court of Appeals of Kentucky.
    Jan. 27, 1967.

      Raymond Francis Connell, Paris, for appellants.
    John L. Keller, Harrodsburg, James F. Clay, Danville, for appellee.
   PALMORE, Judge.

The questions involved in this case are whether certain items of property are “fixtures” within the meaning of that term as used in a lease or leases and, if not, who is entitled to them.

The proceeding began as a claim and delivery action by the appellee, Rose Burke Bisset, against “Chic Goss, President and Process Agent of Chic Goss, Incorporated,” in which Mrs. Bisset sought possession of several items of property allegedly owned by her and wrongfully detained by the defendant. It was not clear from the complaint whether she was endeavoring to sue Goss the individual, the corporation, or both. Anyway, Goss personally answered that the property described in the complaint and order of delivery belonged to the corporation and counterclaimed for the value of a window fan allegedly owned by him and wrongfully taken by Mrs. Bisset. In due course Chic Goss, Inc., was permitted to file an intervening complaint against Mrs. Bisset asserting ownership of all the property enumerated in her complaint, together with several additional items, alleging that Mrs. Bisset was wrongfully detaining all of it, and demanding damages. Mrs. Bisset denied the allegations of the counterclaim and, by answer to the corporation’s intervening complaint, set forth the provisions of a written lease between herself as landlord and the corporation as tenant, one of which was as follows:

“All improvements and fixtures made to and located m said building or upon the lots shall become the property of the lessors exclusively * * * etc.

By virtue of this provision she alleged ownership of all the property claimed by the corporation.

After hearing the evidence without a jury the trial court made findings and conclusions to the effect (1) that neither Mrs. Bisset nor the corporation had proved ownership of any of the property except that which had passed to Mrs. Bisset by the terms of their lease (without specifying which of the items fell within this category), (2) that the window fan claimed by Goss belonged to Mrs. Bisset by virtue of the provision in the lease, and (3) that since neither party had established title to the remaining items they should remain in Mrs. Bisset’s possession “for a reasonable length of time” subject to claim by the true owner or owners.

Goss and the corporation appeal, no technical question being raised with respect to the appeal of Goss.

The term of the lease ran from April 1, 1959, to March 31, 1961. The leased premises consisted of a commercial garage building (Bisset Building) at the northeast corner of Eighth and High Streets in Paris, Kentucky, and an unimproved lot on the other side of the Lovell Building, which adjoins the Bisset Building and also was rented by the Chic Goss, Inc., from anothq^ party or parties. During the term of the Bisset lease and thereafter until April or May of 1961 Chic Goss, Inc., occupied and used all three properties for the conduct of an automobile dealership and repair service. When it vacated the Bisset premises it continued in possession' of the adjacent Lovell Building, and some of the items of property here in controversy, including an air compressor, were located in the Lovell Building at that time.

As best we are able to reconstruct the facts from the evidence, Mrs. Bisset had leased her property to a previous tenant, Briggs Motor Company, for an 8-year term beginning April 1, 1951. That lease contained the same provision for fixtures as did the subsequent lease to Chic Goss, Inc. Briggs evidently assigned the lease to another company, Delaney, Inc., in 1955 or 1956. Goss was or became a one-third owner of Delaney, Inc., and in 1958 bought out the other owners, became the principal stockholder, changed the name of the corporation to Chic Goss, Inc., and continued as tenant under the original lease from Mrs. Bisset to Briggs. In any event, Chic Goss, Inc., had succeeded to the position of its predecessor lessees at the time the new lease was made in 1959.

Except for the above mentioned air compressor and the window fan claimed by Goss individually, the property in dispute had been placed in the Bisset Building or on the Bisset lot by the predecessor tenants, and some of it had been thereafter removed by Goss to the Lovell Building. That Chic Goss, Inc., had actual physical possession of all of it prior to its appropriation by Mrs. Bisset is not disputed; the trial court did not make any finding to the contrary. Hence our review is not directed to any factual determinations made by the trial court, but to the correctness of legal conclusions drawn from established facts.

“The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights of a mere possessor are less extensive than those of an owner.” Holmes, The Common Law, p. 239. “Even a wrongful possessor of a chattel may have full damages for its conversion by a stranger to the title, or a return of the specific thing.” Id., pp. 241-242. “The owner is allowed to exclude all, and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but him.” Id., p. 246. As it has been observed before, possession is title except against the true owner. Cf. Marinaro v. Deskins, Ky., 344 S.W.2d 817, 819 (1961).

Several of the disputed items fall within the classification of “trade fixtures,” which would remain the property of the tenant unless the contract provides otherwise. See Bank of Shelbyville v. Hartford, 268 Ky. 135, 104 S.W.2d 217 (1937). There seems to be a diversity of opinion on the question of whether a stipulation that fixtures shall remain on the premises includes trade fixtures, but we are persuaded to the view that it does, upon the theory that otherwise such a provision would be superfluous and meaningless. Hence it is our opinion that those items that can be fairly identified as having become trade fixtures while on the premises of Mrs. Bisset belong to her, but that she had no right to interfere with Chic Goss, Inc.’s possession of other chattels, whether on or off her property, and has no right to retain anything now in her possession by virtue of such interference.

Mrs. Bisset contends that whatever chattels were on the premises when Chic Goss, Inc., or its predecessor Delaney, Inc., assumed possession as lessee remained in constructive possession of the lessor, either because she as owner of the premises had prior possession and the successor tenant became, permissively, her bailee or because the chattels had the status of “mislaid” property to which, as owner of the premises on which they were found, she had a right of possession superior to that of the finder. Cf. 1 Am.Jur.2d 21, 25 (Abandoned, Lost, etc., Property, §§ 23, 30). The answer to the first of these theories is that Mrs. Bisset never had any possession, actual or constructive, of property not covered by the lease, and certainly the scope of that instrument did not embrace personal property other than fixtures. Possession passed directly and immediately from one tenant to the other, and none of them held any mere chattels by agreement with or permission of Mrs. Bisset; nor is there anything in the record to suggest that any of them intended or claimed to hold them in her behalf. There simply is no foundation on which constructive possession can be erected. The answer to the second theory is that obviously all of the property in question was left on the premises intentionally, and none of it mislaid.

“Mislaid property is property which the owner voluntarily and intentionally laid down in a place where he can again resort to it, and then forgets where he put it.” 1 Am.Jur.2d 4 (Abandoned, Lost, etc., Property, § 2). Unless there is evidence to the contrary, we think it must be presumed that when the owner of a garage business has turned his lease over to another tenant whose purpose is to engage in the same type of business, and has left major items of equipment without returning for them within a reasonable time thereafter, his intention was either to abandon the property or pass title to the successor. Conceding the trial court’s right, within its fact-finding prerogative, to disbelieve Goss’ testimony that he or his corporation had purchased the disputed property, the only credible conclusion in the alternative is that the prior owner nevertheless intended to abandon it.

“Abandoned property is that to which the owner has voluntarily relinquished all right, title, claim and possession with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaming future possession or resuming its ownership, possession, or enjoyment * * * Property which is abandoned by the owner * * * becomes subject to appropriation by the first taker * * * or finder who reduces it to possession. Such person thereupon acquires an absolute property therein as against both the former owner and the person upon whose land it happens to have been left.” 1 Am.Jur.2d 3-4, 18 (Abandoned, Lost, etc., Property, §§ 1, 18).

If the chattels were abandoned, Chic Goss, Inc., was the finder, and Mrs. Bisset’s ownership of the premises on which they were found is immaterial. The case is clearly distinguishable from Silcott v. Louisville Trust Co., 205 Ky. 234, 265 S.W. 612, 43 A.L.R. 28 (1924), in which a bond was found on the floor of the safety vault department of a bank and the bank was held entitled to its custody as against the finder. Despite the general rule that the finder of lost property may keep possession against the owner of the premises on which it was discovered, the court was of the opinion that the bank’s duty to its customers gave it a superior right. In this case there was no comparable duty, the premises were not under the lessor’s control when possession passed from one tenant to the other, and there is no basis for an inference that the property was “lost” anyway.

Those items that can be fairly classified as “fixtures” within the meaning of the lease or leases belong to Mrs. Bisset. As against Mrs. Bisset the appellants are entitled to the chattels by virtue of prior possession. Hence the complaint by appellants that the trial court erred in overruling their motion to amend its findings and conclusions so as to distinguish between the fixtures and nonfixtures is well taken.

In our judgment, on the basis of the established facts and thus as a matter of law, the disputed items are properly classified as follows:

Fixtures
2 neon overhead fixtures
1 gas stove
1 neon hall fixture
1 gas heater
1 large overhead neon fixture
1 gas floor heater
1 door mechanism with electric switches
1 furnace (Bryant heater)
7 neon fixtures
1 Yale door hinge
Sign standards erected on posts set in the vacant lot
Chattels
Extension cords
2 spotlights
5 steel work benches
1 desk
1 air compressor and lines
1 Frigidaire water cooler
1 Homart window fan (property of Goss individually)

In so classifying those items that are designated as fixtures we are influenced by the fact that although they were affixed to the real estate for a trade purpose of the lessee, for the most part they would be necessary to the comfortable occupancy of the premises by any tenant. Though otherwise they might be removable by the lessee as trade fixtures, under the lease contract they belong to the landlord. That Chic Goss, Inc., had severed and removed some of them to the Lovell Building without Mrs. Bisset’s consent did not affect her title. Cf. 22 Am.Jur. 726-727 (Fixtures, § 13).

The Bisset Building and vacant lot had been used together over a number of years by a succession of tenants engaged in the automobile business, and it is readily apparent that the property was adaptable and had been adapted to the purposes of that particular use. That being so, it is reasonable to assume the likelihood that future tenants would be in the same type of business and would need the vacant lot for displaying used cars, from which it follows that the signs mounted on posts imbedded in concrete on the lot come within the same rationale by which we are persuaded that the other items designated as fixtures should be so classified.

About the air compressor there can be no question. It was taken by Mrs. Bisset from the Lovell Building, where it had been in possession of Chic Goss, Inc. Not one witness was able to say it had ever been on her property or in her possession. And in any case, its character was that of business equipment, not a fixture.

The window fan and water cooler were mere conveniences to the tenant and were easily removable. We regard them also as in the category of movable equipment rather than trade fixtures.

The remaining items designated above as chattels were not affixed to the real estate at all, either actually or constructively, and we cannot descry any basis whatever for treating them as fixtures.

Both the counterclaim of Goss and the intervening complaint of Chic Goss, Inc., against Mrs. Bisset sounded in trover rather than replevin. They did not seek a return of the property wrongfully taken from their possession, but its value instead. Each of them demanded punitive damages, and Chic Goss, Inc., demanded $7,000 damages for loss of profits occasioned by its being forced out of business (through loss of its equipment) which it was conducting on other premises.

Upon remand of the cause Goss and Chic Goss, Inc., shall be given judgment for the value of the property wrongfully taken from their possession and the trial court shall also determine what, if any, further damages they may recover under the pleadings and evidence in the case.

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

DISSENTING OPINION

OSBORNE, Judge.

In 1951, Rose Burke Bisset leased a garage building in Paris, Kentucky, to Briggs Motor Company for a period of eight years. Among other provisions, the lease provided, “all improvements and fixtures made to and located in said building or upon the lot shall become the property of the lessor exclusively.” This lease was assigned to an organization known as Delaney, Inc., in 1955. The plaintiff, Goss, was a part-owner in Delaney. In 1958, Goss bought out the other owners and became the sole proprietor of the business. He continued as tenant under the lease, and, in 1959, a new lease was .made incorporating the above provision. During the course of the lease, the following fixtures accrued in the building: two neon overhead fixtures, one gas stove, one neon hall fixture, one gas heater, one large overhead neon fixture, one gas floor heater, one door mechanism with electric switches, one furnace (Bryant heater) seven neon fixtures, one Yale door hinge, extension cords, two spotlights, five steel work benches, one desk, one air compressor and lines, one Frigidaire water cooler, and one Homart window fan (property of Goss individually).

Upon termination of the lease, Goss made claim to these items and Mrs. Bisset filed an action for claim and delivery. The most able trial Judge heard the matter without a jury, and found as follows:

“In the first place there is a question of punitive damages, but no evidence to support such damages. The proof is that the defendant’s lease expired and that he refused to renew it for reasons of his own.”
“Coming to the real question in the case, there is no substantial or satisfactory proof before the Court that the plaintiff owned any of the property purchased by other people except that property that passed to her by terms of the lease with Mr. Goss, in which it was stipulated that all fixtures at the end of the lease would pass with the property. As to other items in question that do not classify as fixtures, there is no proof on the part of the plaintiff that they belong to her. Her former leases might have had the same stipulation in them, but the Goss lease specified that the fixtures purchased by others would be hers at the end of the lease, and, of course, the Court cannot adjudicate any potential claims of the people who bought the property in this suit between Mrs. Bisset and Mr. Goss, who are not before the Court.”
“For the above briefly stated reasons the Court dismisses the petition of the plaintiff with the direction that the property now in her hands and under her control shall remain there for a reasonable length of time, if other claimants appear.”
“As for the counter claim of the defendant, there is no proof as to his ownership of any of the property he took or now claims, except the fan built into a window which passed under the terms of the lease to the plaintiff, Mrs. Bisset.”
“Accordingly, the counter claim of the defendant is also dismissed, and it is further ordered by the Court that the costs in this case be divided equally between the two parties, s/ W. B. Ardery, Judge, Bourbon Circuit Court.”

I am of the opinion that the findings of the trial court should be affirmed. The items enumerated are covered by the lease. Certainly, they did not belong to Goss in any instance. If this case had been tried originally before this court the majority opinion might be justified, but such is not the case. This court only has appellate jurisdiction. Section 110 of the Constitution of Kentucky provides, “The Court of Appeals shall have appellate jurisdiction only, which shall be co-extensive with the State.”

This court interpreting the above provision has held that we are governed by those matters which occur in the trial court. See City of Jackson v. Terry, 302 Ky. 132, 194 S.W.2d 77. General Trial Jurisdiction in this state is invested in the circuit courts. Section 126 of the present Constitution, also article 4, section 17 of the Constitution of 1850. When these courts proceed within their jurisdiction, make proper findings of fact and conclusions of law, their judgments are binding and should not be disturbed by this court unless their actions are clearly erroneous and manifest an injustice. As late as 1952, we were following this principle. See Story v. Brumley, Ky., 253 S.W.2d 24 where Judge Stanley wrote:

“It is a fundamental rule of appellate practice that the finding of fact by a Judge trying a case without a jury is presumptively correct, and, as in other appeals, the appellant has the duty or burden of clearly showing error. Failing in such, the judgment will be affirmed. Citation of authority for this elementary rule is unnecessary.”

For other cases to the same effect, see Creech v. Louisville & N. R. Co., 217 Ky. 301, 289 S.W. 238; Weil v. B. E. Buffaloe & Co., 251 Ky. 673, 65 S.W.2d 704; Preferred Risk Fire Ins. Co. v. Neet, 262 Ky. 257, 90 S.W.2d 39; Cornett-Lewis Coal Co. v. Day, 312 Ky. 221, 226 S.W.2d 951.

The majority opinion in this case pays not the slightest heed to the findings of the trial court and proceeds to dispose of the case as if it had been initially tried before this court. This is an error that any appellate court can easily commit, but it does not persistently happen, in case after case, unless by design. Also in passing, I would like to observe that the majority opinion speaks of Trover and Replevin today under the Civil Rules of Procedure there is only one cause of action and I fail to see how the resurrection of these old ghosts of the past can serve any useful purpose save to he who would open his own graveyard.

For the foregoing reasons, I dissent from the majority opinion.


author: WILSON, Justice.

text:
    Patsy VAUGHAN, Appellant, v. Joe RENSHAW, Appellee.
    No. 4586.
    Court of Civil Appeals of Texas. Waco.
    Jan. 19, 1967.
    Rehearing Denied Feb. 9, 1967.
    Ñaman, Howell, Smith & Chase, George Chase, Waco, for appellant.
    Jack Welch, T. B. Bartlett, Marlin, for appellee.
   OPINION

WILSON, Justice.

Defendant automobile driver asks reversal of judgment for pedestrian plaintiff’s personal injuries on the ground defendant was a minor without a guardian for whom no guardian ad litem was appointed.

Plaintiff sued defendant, alleging negligence proximately causing his injuries. Defendant filed no plea in abatement, but answered with a general denial and general pleas. The verdict was favorable to plaintiff. Defendant testified on the trial she was 17 years old. For the first time in a motion for judgment non obstante veredicto defendant raised the objection that no guardian ad litem had been appointed for her, asserting that no valid judgment could be rendered against her. The court immediately appointed a guardian ad litem and conducted a hearing on the motion for judgment non obstante veredicto.

The judgment recites that from the evidence or stipulations of the parties the court found that defendant was covered by a policy of insurance which indemnified her against recovery by plaintiff in the amount for which judgment was rendered; that .either the father or the mother of the minor was present with defendant during the trial; that defendant was ably represented by trial counsel; that the guardian ad litem, an attorney, was allowed three weeks in which “to investigate any matters which might absolve defendant” from liability; that the guardian ad litem reported in open court that he knew of no available defense which was not urged at the trial. It was stipulated that the trial attorney for defendant was “employed by an interested insurance company” to represent her.

We recognize that under Rule 173, Texas Rules of Civil Procedure, a guardian ad litem should be appointed for a minor defendant who has no guardian. It has been held that when it appears “upon the face of the record” that judgment has been rendered against a minor without appointment of a guardian, the error may be taken advantage of on appeal. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567, 569. See Parr v. Parr, Tex.Civ.App., 207 S.W.2d 187, 189, writ refused n. r. e.; Maze v. Ruscher, Tex.Civ.App., 269 S.W.2d 860, 864, no writ; and Jaynes v. Lee, Tex.Civ.App., 306 S.W.2d 182, 184, no writ.

In our opinion the complaint was waived for failure of appellant to raise the question by verified plea as required by Rules 93(b) and 93(e), Texas Rules of Civil Procedure, which provides that unless the truth of the matter appears of record, a pleading “that the defendant has not legal capacity to be sued” or that there is a “defect of parties” shall be verified by affidavit.

The term “record” within such phrases as “of record,” “apparent of record” and “on the face of the record” is held not to include the statement of facts, the only source of ascertaining the asserted minority in this case. Heard v. Nichols, Tex.Com.App., 293 S.W. 805, 807; Lewis v. Lewis, Tex.Civ.App., 125 S.W.2d 375, 379, syl. 5, writ ref.; Hamm v. Hamm, Tex.Civ.App., 159 S.W.2d 183.

Rule 93(b) concerning capacity applies to situations relating to lack of capacity of guardians and next friends to sue. Joy v. Joy, Tex.Civ.App., 156 S.W.2d 547, 550, writ refused; McGinnis v. McGinnis, Tex.Civ.App., 267 S.W.2d 432, 434, no writ, and cases cited; Wimberly v. Parish, Tex.Civ.App., 381 S.W.2d 135, 137, writ ref. n. r. e. It is held that failure to raise the issue of lack of capacity to sue by verified plea waives the complaint. We fail to perceive why the same rule should not apply to want of capacity to be sued. We hold the complaint was waived.

Appellant urges there is a conflict between a finding of $9,000 “because of diminished capacity to work and earn money in the future” and a finding of “none” in answer to an inquiry as to the sum to be awarded for future “physical pain and mental suffering.” There was evidence plaintiff would sustain 50% future disability. The jury was not required to believe his diminished earning capacity would be solely attributable to pain. There is no conflict.

We have considered appellant’s other points including those concerning inadequacy of the evidence and excessiveness of the verdict. They are overruled.

Affirmed.


author: RENFRO, Justice.

text:
    Lewis BLEDSOE et al., Appellants, v. Roy BOWDEN et al., Appellees.
    No. 16772.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 18, 1966.
    Austin & Summerford, and Gerald N. Summerford, Fort Worth, for appellants.
    Simon & Simon, and Harold D. Hammett, Fort Worth, for appellees.
   OPINION

RENFRO, Justice.

Defendants Bledsoe and Kirkland, appellants herein, entered into a written contract with plaintiffs Bowden and Kulaga, appel-lees, in which defendants as general contractor agreed to construct a commercial building for plaintiffs and pave the parking area and drives.

Plaintiffs alleged that the paving was done in such inferior manner that it was unusable, unfit and worthless. They sued defendants for the. sum of $1,773.41, which amount they alleged they paid to a third party to do the paving job in a workmanlike manner.

The court, without a jury, rendered judgment for plaintiffs for the above amount.

In three points of error the defendants contend the court erred in impliedly holding as a matter of law that, (1) the general contractor is not entitled to credit for the unpaid portion of the contract price against the reasonable cost of remedying defective work; (2) the general contractor is responsible for the costs of improper remedial work done by a third party at the request of the owner; (3) the general contractor was responsible for the costs of performance of a contract made between a former subcontractor of the general contractor and the owner.

Findings of fact were not requested and none were made by the court.

The evidence, and inferences to be reasonably drawn therefrom, viewed in the light most favorable to the judgment, may be briefly summarized as follows:

The paving done by the subcontractor was completely worthless. Defendants recognized its faulty condition and refused to pay the subcontractor. Plaintiffs made repeated demands, extending over a period of several weeks, on defendants to make the paving meet the requirements of the contract as contemplated by the parties. Defendants failed or refused to do anything to correct the work. Finally, having determined that defendants would not perform, plaintiffs agreed with defendants’ subcontractor that he could rework the paving. He did some remedial work whereupon plaintiffs paid him $800, which had been withheld for the paving job. The subcontractor’s second attempt at paving was as disastrous as his first. Plaintiffs again demanded that defendants pave as contracted. Defendants again refused. Plaintiffs then engaged Gibbins, Inc., to do the paving work. Gibbins found it necessary, because of inadequate base laid by the subcontractor, to tear up and remove everything the subcontractor had done and do the entire paving job from the beginning. The reasonable charge for the work was $1,773.-41.

There was thus ample evidence to support the implied findings of the trial court that defendants abandoned the contract and that plaintiffs found it necessary to take possession and complete the work themselves.

Where the contractor wrongfully repudiates or abandons the contract or fails to perform it, the owner may take possession and complete the work himself. When he does so the owner may recover from the contractor any excess in the reasonable cost of completion over and above the unpaid portion of the contract price. McKnight v. Renfro, 371 S.W.2d 740 (Civ.App., 1963, ref., n. r. e.); 10 Tex.Jur.2d 69, § 60.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


text:
    Henry EUBANKS et ux., Appellants, v. W. H. WINN, Appellee.
    No. 4580.
    Court of Civil Appeals of Texas. Waco.
    Jan. 19, 1967.
    Rehearing Denied Feb. 9, 1967.

      John H. Holloway, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, L. S. Carsey, Houston, for appel-lee.
   OPINION

WILSON, Justice.

Plaintiffs appeal from judgment in an automobile rear-end collision case. The jury answered all liability issues against plaintiffs, but found damages resulting from the collision.

Plaintiffs filed a motion to disregard the jury findings and declare a mistrial, and alternatively, to disregard the liability findings and render judgment for damages found and stipulated. These motions were overruled, and judgment was rendered on the verdict for defendant. Plaintiffs thereupon filed a motion for new trial attacking the jury findings.

Thereafter the judgment now appealed from was rendered. Reciting, “It appearing to the court” that the motion for new trial “should be granted on the grounds” relating to liability findings only, and overruled as to all other grounds alleged in the motion for new trial, this order vacated the former judgment, and overruled the motion for new trial “in all other respects”. The judgment then recited that on the date of the hearing on the motion for new trial defendant, after the court “had made known its intention to sustain plaintiffs’ amended motion for new trial on certain grounds,” filed a written motion to set aside the original take-nothing judgment, waiving favorable liability findings, and consenting to judgment for the amount of damages found by the jury. Treating the motion as an admission of liability and confession of judgment as if all liability issues had been answered in plaintiffs’ favor, the court rendered judgment for plaintiffs in the amount found by the jury, plus stipulated damages.

Plaintiffs assert it was error to grant a new trial and award damages by the same judgment, contending the setting side of a part of the verdict constituted granting a new trial on all issues, including that as to damages.

The judgment, when properly construed, is not one granting a new trial; it merely relates that after the court indicated the intended action concerning the motion for new trial, effect was given to defendant’s admission of liability and waiver of favorable jury findings thereon. After vacating the previous judgment the court decreed that plaintiffs’ motion for new trial was overruled, and judgment was rendered for damages. It is unnecessary for us to consider the effect of plaintiffs’ alternative motion invoking the identical action .which was taken by the court. The procedure was not subj ect to the obj ection presented. Malone v. Pioneer Bus Co., Tex.Civ.App., 315 S.W.2d 311, 313, writ ref., n.r.e. See Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955, 958; Thorn v. Stanford Sanitorium, Tex.Civ.App., 297 S.W.2d 862, 863. Beal v. Great American Indemnity Company, Tex.Civ.App., 322 S.W.2d 399, no writ, cited by appellants does not support their position.

We have considered appellants’ points that the damages found are inadequate. Although the evidence would have supported a larger recovery, in view of the testimony as to the nature of the complaints for which the injured person was treated, the cause of pain and the treatment for which medical charges were made, we are unable to say that the verdict is not supported by adequate evidence. Appellants’ points have been considered, and are overruled.

Affirmed.


text:
    Elizabeth Judge SOUTHWORTH et vir, Appellants, v. Elizabeth W. CLARK et al., Appellees.
    No. 4570.
    Court of Civil Appeals of Texas. Waco.
    Jan. 26, 1967.
    Rehearing Denied Feb. 16, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson, Robert L. Blevins, Jr., Houston, for appellants.
    Vinson, Elkins, Weems & Searls, Jarrel D. McDaniel, R. P. Bushman, Jr., M. C. Chiles, Houston, for appellees.
   OPINION

WILSON, Justice.

Appellant-plaintiff, Mrs. Judge, instituted a declaratory judgment action against ap-pellee, Mrs. Clark, and others. Mrs. Judge is the widow of John F. Judge and executrix of his estate. Appellee is his mother.

John Judge and his mother, Mrs. Clark, executed a partnership agreement in 1951 by which they agreed to engage in the oil business, sharing profits and losses at specified percentages. The controlling issues in the case concern the time of termination of the partnership. The partnership agreement provided for a 10-year initial term and successive 10-year terms “until one of the partners gives written notice to the other partners of his desire to discontinue the partnership.” Appellant contends, and sought a declaration that the partnership terminated at the end of the first 10-year period in 1961. Appellee’s position is that it continued until the death of Judge in 1962. She filed a cross-action so asserting, and alleging that a 1962 conveyance by Judge to appellant, his wife, of an undivided ¼ interest in the partnership assets was ineffective, and the assets described remained subject to the partnership agreement until Judge’s subsequent death; that Judge was without authority to execute the conveyance, which she prayed be cancelled as having passed no title to appellant. An accounting of the rights of the parties was prayed for.

In a non-jury trial judgment was rendered finding and declaring that the partnership was not dissolved or terminated, but continued until the death of Judge; that appellee, Mrs. Clark, was entitled to purchase Judge’s interest according to the terms of the partnership agreement; that the conveyance to appellant by Judge as general and managing partner was ineffectual and should be set aside. The accounts of the parties were stated.

It is undisputed that no written notice of termination was ever given. The partnership agreement provided that neither partner should convey partnership property without written consent of the other. Mrs. Clark did not consent to the conveyance by Judge to his wife, who, in urging validity of the conveyance, asserts that the one-fourth undivided i iterest conveyed was the interest in the partnership to which Judge was entitled.

Appellant urges that Mrs. Clark retained the same attorney who had been previously employed by Judge to negotiate with her for a modification or re-writing of the partnership agreement; that this conduct constituted tortious interference in an existing attorney-client relationship; and that thereby “appellee is estopped to assert the requirement of written notice” of intention to terminate the contract.

The implied finding in support of the judgment contrary to this contention is authorized by the record. There is no pleading of estoppel, however; and in the absence of affirmative averments as to this plea in confession and avoidance under Rule 94, Texas Rules of Civil Procedure, it may not be relied upon. Concord Oil Co. v. Alco Oil and Gas Corp. (Tex.Sup.1965) 387 S.W.2d 635, 639; 22 Tex.Jur.2d, Estoppel, Sec. 19, p. 690.

The evidence is adequate to support the trial court’s findings that there was no agreement to terminate the partnership at the end of the initial ten-year period, and the implied finding that there was no waiver of appellee’s right to require written notice of termination. The evidence shows that although Judge desired and unsuccessfully sought a modification and amendment of the partnership agreement, he desired a continuation of the partnership. We find and are pointed to nothing to show he evidenced or gave notice of a contrary desire, or intention to terminate. There is no pleading of waiver, also requisite under Rule 94.

Complaint is made of exclusion of testimony by appellant concerning statements made by Judge expressing dissatisfaction with the business relationship with his mother, and his desire to re-write the partnership agreement. The statements were said to have been made in meetings between Judge, appellant and an attorney for the partnership in appellee’s absence. These statements and certain documents were excluded as violative of Art. 3716, Vernon’s Ann.Tex.Stats., the Dead Man’s Statute. The statute provides that in actions by or against heirs and legal representatives of decedents, neither party shall be allowed to testify to transactions with or statements by decedent. The statements were also excluded as being hearsay.

This action was brought by appellant in her individual capacity, but appellee’s cross-action was against her individually and as executrix of Judge’s estate to set aside the 1962 deed executed by Judge and to enforce the partnership agreement. Appellant answered in both capacities, asking the court to construe the instrument and decree performance.

The controversy in this case concerns effect of the deed from Judge purporting to convey a one-fourth interest in the partnership. It turns on the issue of whether or not the partnership was dissolved prior to Judge’s death. If there was no termination until his death, his interest sought to be conveyed by the deed was an asset of Judge’s estate of which his widow, appellant, was executrix. The objection to the evidence that it contravened the statute, in our opinion, was properly sustained. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867, 868; Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 809; Graves v. Moon, Tex.Civ.App., 92 S.W.2d 290, 292, writ ref.

Discussions between Judge and the attorney, together with various documents were offered without limitation,, for all purposes. They were hearsay as to appellee, and were properly excluded.

Appellant’s points have each been considered and are overruled. Affirmed.


author: PRITCHARD, Commissioner.

text:
    Victor BOLLENGER, Administrator w.w.a., d.b.n. of the estate of Theodore Harris, deceased, and M. E. Fitzpatrick, as Moderator of the Lawrence County, Missouri, Baptist Association, and the Lawrence County, Missouri, Baptist Association by M. E. Fitzpatrick, a member of the class, Appellants, v. Arleen BRAY, Administrator of the estate of Grace Cox, Arleen Bray, individually, and Arleen Bray, as guardian of the estate of A. E. Cox, Incompetent, Hattie B. Thomas, and Raymond Thomas, individually and as Administrator of the estate of Lulie A. Harris, deceased, Respondents.
    No. 51773.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.

      Almon H. Maus, Monett, for appellants.
    Ratican & Faulkner, William A. Ratican, Jr., Aurora, Oral H. McCubbin, Mt. Vernon, for respondents.
   PRITCHARD, Commissioner.

The issue is whether decedent’s widow (now also deceased), life devisee of his estate, may validly have allowed to her as part support and maintenance almost ten years after administration was begun, the bulk of his estate as against the contention that she had no power to consume the estate absent an actual need therefor. The underlying issue is the sufficiency of a duly published notice of final settlement in the estate of January, 1952 (which settlement was not then made), to support a final settlement and discharge of the executrix on April 22, 1960. We have jurisdiction at least by reason of the amounts in controversy, commingled funds claimed by appellants from various respondents, exceeding $15,000.

The facts are: Theodore Harris and Lulie A. Harris, each having been previously married, were married in 1944. Theodore had no children. Lulie had two children by her prior marriage, Grace Cox and Hattie Thomas. Theodore and Lulie were each 72 years of age at the time of their marriage and left no children thereof. Theodore died first, on November 21, 1950, leaving a will dated March 13, 1948, which was admitted to probate November 24, 1950, the here relevant portions of which are:

“SECOND: If I am survived by my beloved wife, Lulie A. Harris, then, as of the date of my death, I give, devise and bequeath all of the residue of my estate, whether real, personal or mixed, wheresoever situate, and whether now owned or hereafter acquired, unto my said wife, if she survive me, TO HAVE AND TO HOLD DURING HER NATURAL LIFE, with full and complete discretion capacity, authority and power to her, my said wife, if she survive me, to sell, grant, convey and deliver, in such manner, on such terms and at such price as she may best elect, all or any part of said residue, and make perfect record title thereto and create perfect ownership thereof, all absolutely and forever the same as I could do if living, and collect and reinvest the proceeds thereof or any insurance thereon during her natural life. The life estate here provided for my said wife, if she survive me, to be in lieu of her dower in my estate; and I appeal to her to accept, such provision; and it is my wish that she consume so much of my estate as may be required for her support in the manner to which she is accustomed, conserving the balance for the purposes hereinafter stated.
“FOURTH: If I am survived by my said wife, then at her death I give, devise and bequeath all of the remainder of my estate as aforesaid in the same manner and under the same conditions as in Section THIRD hereof stated for the residue of my estate in event my said wife should predecease me.”

Lulie was appointed executrix of the will, and on November 25, 1950, filed inventory: Lots 5 and 6 in Block 3 of the Original Survey of Pierce City, appraised at $5,000; bank account $267.40; John W. and Nadine Mulkey note $3,570; M.F.A. Dairy Products Co. certificates $1,200; W. L. Bray note $1,334; 1939 Chevrolet automobile $315; Theodore Moennig note, dated February 10, 1948, $10,000; a total of $16,686.40 personal property and $5,000 real property. Title to the real estate is not here in issue.

Lulie charged herself with the collection of certain principal and interest payments, totaling $1,715, on her first settlement approved on August 16, 1951, and on that same date petitioned for $500 maintenance and support during administration, an order being made granting same on that date. Then on January 3, 10, 17 and 24, 1952, she caused notice to be published that she would file final settlement in Theodore’s estate at the next term of the Probate Court of Lawrence County to be held on February 11, 1952, on which date she did not file such settlement and no other action was taken by that court on that date. An approved first annual settlement was made by Lulie on February 15, 1952, on which she again charged herself with principal and interest payments totaling $570 on notes and certificates. An order of general continuance in the estate was made from term to term until January 1, 1956.

On April 22, 1960, Lulie, as executrix, filed a petition in the probate court for an order allowing her individually the sum of $200 per month for the period of 100 months preceding that order for her support and maintenance. The court granted the order, and $200 per month thereafter until further order of the court, and assigned the Moen-nig note, balance $9,000, to Lulie in partial payment of the allowance. No formal notice of this petition and order was given to the Lawrence County, Missouri, Baptist Association (the Moderator and his successors of which were residuary legatees under Theodore’s will).

In a final settlement also dated April 22, 1960, Lulie charged herself with $2,060 paid on the Mulkey note; $1,200 on the M.F.A. certificates; $1,034 on the Bray note; $315 on the automobile; $2,800 interest on the Moennig note, and $9,000 principal thereon; a total of $16,409. A short time after the filing of the final settlement Lulie died on June 20, 1960, at the age of 87 years. For her support and maintenance she claimed credit for $16,971.31 for assets paid to herself individually. The probate court approved the final settlement on the same date and discharged Lulie as executrix.

Other than the published notice of January, 1952, no notice of the filing of the final settlement of April 22, 1960 was made, and no formal notice thereof was given to the Lawrence County, Missouri, Baptist Association.

We rule that the January, 1952, published notice of final settlement was not sufficient to support the actual final settlement made in April, 1960, more than eight years later. Note that the published notice stated that Lulie would make a final settlement at the next term of court to be held February 11, 1952. She did not in fact then make a final settlement which is for the purpose of auditing her accounts and making a final distribution to the person or persons entitled to the residue of the estate, but made an annual settlement on February 15, 1952, thus continuing the administration of the estate. She must be held to have abandoned her published intention to make a final settlement and wind up the estate. Of course, at that time and from this record, there was apparently no intention upon her part of then invading the corpus of her life estate for needed support and maintenance. That came later, in April, 1960. The case of Hewitt v. Duncan's Estate, 226 Mo.App. 254, 43 S.W.2d 87, is in point. There, the executrix caused notice of final settlement to be published in which it recited that final settlement of the estate would be made in the Probate Court of Clinton County on August 9, 1926. No settlement was then made and the probate court made general orders of continuance up to April 28, .1927, but none thereafter. On May 31, 1928, a purported final settlement was made and the executrix was ordered discharged upon filing inheritance tax receipts. Plaintiff’s claim for attorney fees for services rendered the executrix was thereafter filed on August 25, 1928. The court held that the notice that final settlement would be made on August 9, 1926, was not sufficient to confer jurisdiction on the probate court to render the judgment approving the settlement filed May 31, 1928. Cited was the early case of Brashears v. Hicklin, et al., 54 Mo. 102, where in 1861 the plaintiff executor published notice that he would make final settlement at the next term of the probate court. At the next term he appeared, and on his motion his settlement filed was continued to the next term. No further action or notice of the settlement was taken for nine years until 1870, when plaintiff appeared, withdrew the 1861 settlement and filed a corrected one claiming money due him for advances to Hicklin above his residuary interest in the estate. The court there said, loe. cit. 104, “The main reason why the law requires notice from an executor or administrator, that he will make final settlement of an estate, is that all parties interested may he advised, and appear at the proper time to examine the accounts and protect their rights. * * * It could not be reasonably expected that the parties interested in the estate would appear at every term of the Probate Court for nine years, to see whether the executor intended to make his final settlement.” The court held that there was not a sufficient compliance with the law in the matter of publishing notice, and that the settlement had no binding force on the parties interested in the estate. See also Thompson’s Estate v. Martin, Mo.App., 133 S.W.2d 677, 678 [1], where a notice was given that the estate would he finally settled at the November, 1933, term of the probate court, but no settlement was made at that time. Annual settlements were made until August 6, 1937, when a purported final settlement was filed dated August 2, 1937. No notice was given that a final settlement was given at that time, and the court held that “consequently, the court had no jurisdiction to entertain it.” For a case analogous in principle, see In re Jackson’s Will, Mo.App., 291 S.W.2d 214, where an application for appointment of a substitute trustee was filed in the circuit court, but was continued from term to term, and without additional notice to interested parties was acted upon; 34 C.J.S. Executors and Administrators § 846, p. 979. The fact that no additional notice was given by Lulie of her final settlement does not satisfy the requirements of due process of law — the opportunity of interested residuary legatees to be heard, and did not comply with either the requirements of the old Probate Code, § 465.160, RSMo 1949, or the new Probate Code, §§ 473.587, 473.590, RS Mo 1959, V.A.M.S. Appellants are not barred from attacking the final settlement here upon which Lulie, as executrix, had credited herself with a portion of her individually and retroactively allowed sums for support and maintenance (on her petition for which we note there was no administrator ad litem appointed to represent the estate as against her adverse claim).

Under the terms of Theodore’s will Lulie clearly had a life estate in the residue of his property. Respondents agree, but contend the two powers conferred upon her by paragraph Second of the will: (1) to sell and convey all or any part of the estate in such manner and on such terms and at such price as she might deem best; and (2) “it is my wish that she consume so much of my estate as may be required for her support in the manner to which she is accustomed * * showed an intention of Theodore that Lulie be supported for the remainder of her life from his estate (emphasis respondents’). No doubt that was Theodore’s intention, but the words that she might consume so much of his estate as might he required for her support in the manner to which she is accustomed added the requirement, as contended by appellants, that there be a necessity for her encroachment upon the corpus of her life estate. The cases so hold: Cook v. Higgins, 290 Mo. 402, 235 S.W. 807, 812, where this court en banc disapproved Griffin v. Nicholas, 224 Mo. 275, 123 S.W. 1063, and adopted the minority opinion therein that a power to sell (and consume) was coupled with a limitation based upon the existence of a fact — that the sale was reasonably necessary for the widow’s comfort and support! See also Citizens’ Bank of Lancaster v. Foglesong, 326 Mo. 581, 31 S.W.2d 778; Graham v. Stroh, 342 Mo. 686, 117 S.W.2d 258; Palmisciano v. Staltari, Mo., 175 S.W.2d 793; Smith v. Smith, 359 Mo. 44, 220 S.W.2d 10; Gent v. Thomas, 363 Mo. 528, 252 S.W.2d 345; Edwards v. Payne, Mo., 307 S.W.2d 657; and Morisseau v. Biesterfeldt, Mo., 345 S.W.2d 210, all reaffirming the principle in Cook v. Higgins, supra, that there must be a reasonable necessity of the life tenant to justify invasion of the corpus of the estate. We adhere to that principle in this case, and it leads us to appellants’ contention that the trial court erred in excluding their offered evidence of the surrounding circumstances of testator, and of the need of Lulie A. Harris for support and maintenance from the corpus of the estate.

Clause Second of Theodore’s will is not ambiguous. His intention is clear to devise to his wife a life estate in all his property, with a power of sale for reinvestment purposes. No extrinsic evidence is therefore admissible to ascertain his intention in benefiting his wife, Lulie. Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885; Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56; In re Sidebottom’s Estate, Mo., 327 S.W.2d 270. There is, however, a limitation placed upon Lube’s right to invade the corpus of the estate in the words: “and it is my wish that she consume so much of my estate as may be required for her support in the manner to which she is accustomed, conserving the balance for the purposes hereinafter stated.” (Emphasis added.) Evidence is admissible to show what was required by Lulie for her support and to show in what manner she was accustomed to be supported. The trial court erred in refusing the proffered evidence of these latter matters in determining the amount of the estate to which Lulie. was absolutely entitled. Compare McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, 484; and cases involving the performance of a condition to a devise or bequest imposed by a testator, Hovey v. Grier, 324 Mo. 634, 23 S.W.2d 1058; Ray v. Nethery, Mo., 255 S.W.2d 817; Lehnhoff v. Theine, 184 Mo. 346, 83 S.W. 469. A further inquiry would be the matter of Lube’s good faith in taking as an allowance for past support 200 months at $100 per month, she having a duty to conserve the balance above what was necessary for her support to the benefit of the residuary legatees. “A trustee who is also a beneficiary and who is given a power, or discretion, to-invade the trust principal for the accomplishment of the settlor’s purpose has a fiduciary obligation to the remainder-man to confine his, the trustee’s, demands within reasonable limits.” 90 C.J.S. Trusts § 349, p. 625.

The judgment is reversed and the case is remanded for new trial.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

FINCH, Acting P. J., and DONNELLY and STORCKMAN, JJ., concur.

EAGER, P. J., not sitting.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Frank RUNYON, Appellant.
    No. 51880.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

This is an appeal from an order overruling a motion filed under Criminal Rule 27.26, V.A.M.R., to vacate a sentence and judgment in a stealing case filed against Frank Runyon.

In Case No. 3390 in the Circuit Court of St. Clair County Runyon was charged in one information, drawn in two counts, with the offenses of burglary second degree and stealing. This was one of six cases of burglary and stealing filed against this defendant. On February 1, 1964 he appeared before the circuit court personally and with his court-appointed attorney and entered a plea of guilty in Case No. 3390 to burglary and stealing. The court assessed his punishment at 10 years on the charge of burglary and 2 years on the charge of stealing. The other five cases pending against Runyon were dismissed by the prosecuting attorney. The supplemental transcript shows that the judge ordered the two sentences to run consecutively. In writing the judgments the clerk made completely separate entries on each charge. Each judgment entry directed that the sentence commence on February 1, 1964. Runyon was imprisoned on these sentences and on June 19, 1965 filed in the Circuit Court of St. Clair County this motion to vacate the judgment and sentence in the stealing case, based on these reasons: (1) that he was charged with both crimes (burglary second degree and stealing) in one information and that the court in sentencing him entered two separate sentences; (2) that he was sentenced in excess of the maximum sentence prescribed for the offense of burglary second degree, which under these circumstances is alleged to be from 2 to 5 years; (3) that the sentences were ordered to run consecutively, but that the order that the sentences run consecutively totally fails under the law because both sentences have the same starting date; therefore the 2-year sentence for stealing is not an additional sentence. The motion concluded with a suggestion that the prisoner was entitled to a complete discharge.

Appellant attended the hearing of the motion to vacate, having been produced under a writ of habeas corpus ad prosequen-dum, and was represented by counsel at the hearing. The case was argued by counsel for the respective parties. The court found the commitment issued on the 2-ycar sentence to be erroneous, and ordered it corrected by amendment “to conform to the sentence imposed” and that sentence begin at the termination of the sentence for burglary. An amended sentence and judgment was entered of record in compliance with the order of the court. Thereupon defendant filed a notice of appeal “from the order overruling defendant’s Motion to Vacate Judgment and Sentence.” In the notice of appeal defendant also made the charge that the court records had been forged by the presiding judge with the intent to enter a nunc pro tunc entry “unauthorized by law.”

The circuit court properly overruled the motion to vacate the judgment and sentence.

It was proper to charge burglary and stealing in the same information. “If any person in committing burglary shall also commit a crime of stealing, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, * * § 560.110(1) ; Criminal Rule 24.04, V.A.M.R. State v. Bursby, Mo.Sup., 395 S.W.2d 155; State v. Sims, Mo.Sup., 386 S.W.2d 396. There was no error in making separate entries of the sentences and judgments on the two separate and distinct crimes. Indeed, the judgments on Counts 1 and 2 would have been fatally defective if they had failed to assess separate punishments for each offense in each count. State v. Bursby, supra, 395 S.W.2d, 1. c. 161 [7].

The 10-year sentence for burglary did not exceed the maximum punishment allowable under our law. “Every person who shall be convicted of burglary in any degree shall be punished by imprisonment in the state penitentiary, as follows: * * * (2) If in the second degree by imprisonment in the state penitentiary for a term not less than two nor more than ten years.” § 560.095.

The fact that the judgment entries specified that the 2-year and 10-year sentences were to commence on the same day does not entitle appellant to an acquittance on the 2-year sentence. The specification of the date on which each of the sentences was to begin (February 1, 1964) was not legally effective to fix the beginning of the sentences. The law, not the judgment, fixes the date of the commencement of punishment. State v. Testerman, Mo.Sup., 408 S.W.2d 90, and cases cited, 1. c. 92 [1],

At the hearing on the motion to vacate the court ordered that the judgment be amended to provide that the 2-year sentence “commence at the termination of prior sentence for burglary in same number case.” This order of correction was based upon an entry of record on file in the case, namely, an order entered on February 1, 1964, when the pleas of guilty were taken, that the two sentences run consecutively. This was an existing record made at the time of the original proceedings, and therefore the court in making the amendment acted within its powers. State v. Kitchin, Mo.Sup., 282 S.W.2d 1.

The allegation of forgery made in the notice of appeal is unsubstantiated, a mere conclusion, constitutes altogether insufficient grounds for relief, and cannot be raised in this manner.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C.,is adopted as the opinion of the court.

All of the Judges concur.

      . All section references are to RSMo 1959, V.A.M.S.