author: MAUGHMER, Commissioner.

text:
    Newton C. MERRITT, Appellant, v. STATE HOSPITAL NO. 1, FULTON, Missouri, and Dr. Donald B. Peterson, Superintendent, State Hospital No. 1, Fulton, Missouri, Respondents.
    No. 24322.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.

      Patrick Horner, Auxvasse, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Clyde Burch, Sp. Asst. Atty. Gen., Kirksville, John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondents.
   MAUGHMER, Commissioner.

The appellant was a hospital attendant at State Hospital No. 1 in Fulton, Missouri. He was dismissed from that employment and the Personnel Advisory Board upheld the dismissal. Upon review the circuit court affirmed and the employee has appealed.

Most of the facts are undisputed. Appellant, Newton C. Merritt, was employed from August, 1959 until December 17, 1963, as a hospital attendant at State Hospital No. 1, Fulton, Missouri. During the latter part of his service he was on the 3:00 to 11:00 p. m. shift at the Biggs Building, which was a place of maximum security and housed the criminal insane. Mr. Merritt had previously worked for approximately one year as an attendant at the St. James Federal Soldiers’ Home.

In December, 1963, appellant’s immediate supervisor was Mr. Leo Boone. Mr. Percy Langley was nursing supervisor. Mrs. Nina McAllister was acting director of nurses, and Dr. Donald B. Peterson was superintendent of the hospital and ex-off i-cio the appointing authority.

Early in December, 1963, Mr. Merritt lodged a complaint against another attendant, Mustoe, by name, for alleged physical abuse of a patient. On December 11, Merritt went or was called to the office of Mrs. Nina McAllister, acting director of nurses, and there gave his statement concerning the alleged mistreatment. Present at the time were Mrs. McAllister, Mr. Jack Schwieter-man, personnel officer, and Mr. Bob Ros-son, registrar. All three questioned Mr. Merritt. His statement and the questions and answers were all tape recorded at the time. Apparently these hospital attendants are de facto nurses, or at least are regarded as such in the hospital chain of command, since Mrs. McAllister, director of nurses, seemed to be “boss of the attendants” and outranked by only the superintendent and presumably by the ward doctors. In any event, Mrs. McAllister was vested with or assumed authority to investigate the charges of “patient abuse” and prescribe punishment for any such infraction as well as for insubordination or other misbehavior on the part of the attendants. She called Merritt back to her office on the following day, December 12, and questioned him further on the same subject. On this occasion Mustoe, the attendant charged with misconduct, and attendant Toomes — a witness — were also present. Again the whole proceeding was tape recorded. All witnesses, including Mrs. McAllister, agree that appellant on both occasions was completely cooperative.

On December 13, and for the third day in succession, Mrs. McAllister requested Merritt to report to her office. This was a telephone request and was communicated by Leo Boone, Merritt’s immediate supervisor. Appellant told Boone he had taken a laxative — had diarrhea — was in no condition to go and was not going. However, he worked on the 13th, on the 14th and on the 15th. On December 16, Mrs. Mc-Allister sent a written order to the Biggs Building, directing appellant to “report to her office for further questioning concerning the charges of patient abuse”. Appel-lent did not report on the 16th. He told his supervisor that he had told all about the affair on the two previous visits and Mrs. McAllister was getting ready to fire him. However, early on the morning of December 17, he did go to her office. Mrs. McAllister made no further inquiries on the subject of patient abuse, but immediately informed Merritt that his conduct in failing to report to her as requested or directed amounted to insubordination and she was going to recommend his dismissal.

On December 18, 1963, Merritt was informed by letter from Mr. Schweiterman, personnel officer, that he was suspended without pay, effective December 17, 1963, and would be dismissed from employment December 22, 1963 “because of your unsatisfactory work attitude as shown by your refusal to report to the director of nursing services as requested by your supervisor and the director of nursing services”. Dr. Donald B. Peterson, superintendent and the appointing authority, wrote a letter to Merritt, explaining the reasons for the dismissal. The superintendent does not usually do this, but stated that Merritt’s was an exceptional case. He did not point out in just what respects he regarded it as exceptional.

Chapter 36, V.A.M.S. has to do with the state merit system. It is conceded that appellant’s job as attendant was covered by this chapter. Sections 36.040, 36.050, V.A.M.S. provide for and create a Personnel Advisory Board. We note that appellant here was suspended from December 17 to December 22, 1963, a period of five days, and then dismissed effective December 22, 1963. Section 36.370, V.A.M.S. vests “an appointing authority” with the authority to suspend an employee for disciplinary purposes but not exceeding ten days in any twelve month period. Section 36.380, V.A. M.S. authorizes dismissal “for the good of the service”. An employee who has been either suspended or dismissed has the right of appeal to the Board. Section 36.-390(5) V.A.M.S. provides that after a public hearing the Board may (1) order reinstatement and payment of lost salary; (2) sustain the dismissal unless the Board finds “that the dismissal was based upon political, social or religious reasons” in which case reinstatement should be ordered, or (3) except as provided by (1) and (2) hereinabove the Board “may sustain the dismissal, but may order the name of the dismissed employee returned to an appropriate reinstatement register” or may transfer such employee.

Appellant appealed to the Board. A lengthy hearing was held. The facts as we have outlined them were there developed and the Board found: “That the testimony and evidence presented at said hearing established to the satisfaction of the Board that the dismissal was for the good of the service”. It concluded: “The Personnel Advisory Board, after hearing and considering all of the evidence for and against the suspension and dismissal, order That the suspension and dismissal of Newton C. Merritt by the appointing authority of State Hospital No. 1 be sustained, but that Mr. Merritt’s name be placed on an appropriate reinstatement register in the area of his choice other than State Hospital No. 1, Fulton, Missouri”. This listing for reemployment or on a reinstatement register is apparently in accordance with the provisions or suggestions contained in Section 36.390 (5) (3), supra.

The appellant sought review by the circuit court. That court affirmed the order of suspension and dismissal. The Board has not been made a party respondent. Only State Hospital No. 1 and Dr. Peterson are joined as such. However, no suggestion of improper or incomplete joinder has been made.

Respondents contend first that under Section 36.390(5) supra, the Board could only reinstate an employee if the dismissal was “because of political, social or religious reasons”. We disagree. First, the statute itself authorizes reinstatement if the dismissal was “not for the good of the service” and, second, Article V, Section 22, The Constitution, V.A.M.S. provides for a direct review by the courts as provided by law of all final decisions, findings, etc. of any administrative body, and that such review shall include a determination of whether the decision is authorized by law and is supported by competent and substantial evidence upon the whole record. State at the Relation of Bond v. Simmons et al., Mo.App., 299 S.W.2d 540, 542. Section 536.140, V.A.M.S. spells out the scope of judicial review. We must examine the record and determine if the decision complained of (1) is unauthorized by law; (2) is supported by competent and substantial evidence upon the whole record; (3) is the result of unlawful procedure or without a fair trial; (4) is arbitrary or capricious and (5) involves an abuse of discretion.

It is undisputed that the appointing authority has the statutory authorization to suspend or dismiss the employee and it is also undisputed that the Board by its decision on appeal did not exceed its jurisdiction. The contested issues which we must determine are these: Is the decision arbitrary or capricious, does it constitute an abuse of discretion and is it supported by competent and substantial evidence upon the whole record?

In our determination as to whether or not the decision is supported by competent and substantial evidence we cannot substitute our judgment for that of the tribunal. But we are authorized to determine if the administrative body could have reasonably made its findings and reached its result upon the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp. et al., en Banc., 355 Mo. 670, 197 S.W.2d 647, 649; Michler v. Krey Packing Co., en Banc., 363 Mo. 707, 253 S.W.2d 136; Willens v. Personnel Board of Kansas City et al., Mo.App., 277 S.W.2d 665, 670.

These three questions are somewhat interwoven here. Clearly appellant failed, neglected or refused to report to the office of Mrs. McAllister, acting director of nurses, on December 13, although orally requested to do so by Mrs. McAllister, her request being transmitted by Leo Boone, appellant’s immediate supervisor. Appellant offered as an excuse to Boone, his assertion that he was suffering from diarrhea. However, he worked on that day, the 13th, and again on the 14th and 15th. On December 16, Mrs. McAllister, by written order directed him to report to her office. He did not do so, but did go there early on December 17, and was immediately fired or advised by Mrs. McAllister that she was going to recommend his dismissal. Appellant’s expressed opinion that he had told all he knew about the matter under investigation and it was unnecessary to be examined a third time about it seems reasonable and plausible to us. However, the scope of the investigation was a question for the hospital authorities to determine. It was not for Merritt to decide, nor is the decision one for the judgment of this court, unless the actions of Mrs. McAllister and the others were patently absurb, arbitrary or capricious. The suspicion may at least arise that possibly Merritt had complained against an attendant who was a favorite of Mrs. McAllister. Nevertheless, the fact remains that Merritt refused to obey an oral and later a written request or direction to report to the office of Mrs. McAllister. We presume that any well run and efficient organization, be it army, hospital or private business, must have an effective chain of command and it must be responsive, otherwise discipline fails, the organization is disrupted and attainment of the ultimate purposes and objectives become impossible. We certainly are not convinced that Mrs. McAllister’s actions in this affair were completely fair, unprejudiced and necessary for the good of the service but we cannot, even if we would, substitute our judgment for that of the appointing authority or the Personnel Board. Moreover, Merritt’s failure and refusal to comply with Mrs. McAllister’s oral and written requests or orders cannot be regarded as being conducive to hospital efficiency, employee morale or the building of a good and smoothly operating organization.

It is conceded and established that Merritt did refuse or fail to comply in these matters. We, therefore, conclude that the decision is supported by substantial, competent and credible evidence. It is further our opinion that to hold the decision was arbitrary, capricious or an abuse of discretion would be to substitute our judgment for that of the Board, since failure of a subordinate to obey a proper order twice repeated, on separate days, once oral and once in writing, must be accepted as a solid basis for disciplinary action, even possible dismissal. Therefore, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, G, is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: BROADDUS, Special Commissioner.

license: Public Domain

text:
    BARRETT, FITCH, NORTH & CO., Incorporated, a Missouri Corporation, Plaintiff-Appellant, v. R. Lofton HUDSON and Jessie L. Hudson, Defendants-Respondents.
    No. 24348.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.
    John H. Kreamer, Kenneth V. Butler, Gage, Hodges, Park & Kreamer, Kansas City, for appellant.
    Winston V. Buford, Eminence, John C. Thurlo, Swanson, Midgley, Jones, Black-mar & Eager, Kansas City, for respondents.
   BROADDUS, Special Commissioner.

This is a suit in equity to rescind the sale of corporate stock and to compel a return of the purchase price. Judgment was for defendants and plaintiff appealed.

In 1956, Dr. R. Lofton Hudson and his wife, Jessie L. Hudson, defendants-respondents, purchased 100 shares of capital stock in the American Founders Life Insurance Company for $6 per share. A certificate representing said shares was issued to them bearing the date of December 11, 1956, and these shares were owned by them until on or about August 31, 1961, when they were sold to Barrett, Fitch, North & Co., Incorporated, the plaintiff-appellant, a Missouri Corporation engaged in the securities business.

Dr. Hudson is a pastoral counsellor, being the founder and director of the Midwest Christian Counseling Center. Prior to the founding of that concern in January of 1956, he was pastor at the Wornall Road Baptist Church in Kansas City from 1952 to 1957, and before that in other pastorates in Oklahoma and Tennessee. He had been a Baptist minister since 1932.

Other than his purchase and sale of the shares of stock here involved, Dr. Hudson had never had any dealings or experience with stocks, and had made no study concerning information about stocks and bonds. He bought these shares on the recommendation of a Baptist minister whom he had known in Oklahoma and who advised him the stock “was going sky high” and would be worth $1500 within a year. Although he had a vague recollection of receiving some correspondence “for a while” after he first bought this stock Dr. Hudson testified that he never had any actual notice or knowledge of the change in the corporate name of the company.

In February, 1961, The American Founders Life Insurance Co., the company in which the Hudsons owned the shares in question, changed its name to Falcon National Life Insurance Co.

On or about August 1, 1961, Dr. Hudson called Barrett, Fitch and talked to Mr. Roger Bell, a broker employed by Barrett, Fitch. He told Mr. Bell that he owned shares of stock in The American Founders Life Insurance Co. and requested information about the stock’s value. Mr. Bell thereupon consulted the daily quotations for over-the-counter securities in the “pink sheets”, a daily stock price service put out by the National Quotation Service, and found one listing for The American Founders Life Insurance Company. The pink sheets indicated that the bid price for the stock was $26, but that none was offered and there was no “ask” quotation. The pink sheets showed only one stock selling under the name of The American Founders Life Insurance Co. The price and the name and address of the dealer making a market in the stock was the essential information given in the pink sheets. They did not show the state of incorporation of the company. Mr. Bell told Dr. Hudson what the price was and Dr. Hudson asked Mr. Bell what he knew about the stock and whether he advised selling at that price, Mr. Bell told Dr. Hudson that he was not familiar with the company and had no opinion about the stock. Dr. Hudson then asked Mr. Bell if he could find out more about the stock’s value and told him that he would talk to him in a couple of weeks.

Mr. Bell agreed to get more information about The American Founders Life Insurance Company and contacted the dealer shown in the pink sheets who made a market in the stock and learned from him the business address of the company. Mr. Bell wrote to the company and asked for information and in response received the annual report of the company for 1960. Mr. Bell read the report, talked to Dr. Hudson again, and told him about the annual report. Mr. Bell also told him that the price of the stock had incr?ased in the meantime to $27½. Dr. Hudson thereupon told Mr. Bell that he wanted to sell his shares of stock and Mr. Bell said that Barrett, Fitch would purchase his shares at the current market price, $27½ and asked Dr. Hudson to send in his certificate. Dr. Hudson sent in the certificate and Mr. Bell received it in a day or two. Barrett, Fitch sent Dr. Hudson a check for $2748.92 in payment of the shares on or about August 31, 1965.

Mr. Bell gave the certificate to Mr. Russell Sparks, manager of the trading department at Barrett, Fitch, with an order to sell. The certificate was sent by Barrett, Fitch to the broker in Texas who purchased the shares from Barrett, Fitch. The Texas broker, after receipt of the certificate, notified Barrett, Fitch that the certificate was not for shares in The American Founders Life Insurance Co., the company whose stock price was quoted in the pink sheets and whose shares Barrett, Fitch thought they were purchasing, and returned the certificate. The shares purchased and sent to the Texas broker were shares in the Falcon Life Insurance Co., whose name pri- or to February, 1961, had been The American Founders Life Insurance Co., which was the same name as that used by the Texas company, the only company bearing that name in August, 1961. Upon learning of the refusal of the Texas broker to accept the Falcon National shares sent, Barrett, Fitch bought 100 shares of The American Founders Life Insurance Company stock at the market price and sent them to the Texas broker in order to comply with the terms of its sale to the Texas broker.

Mr. Bell was notified of the refusal of the Texas broker to accept the Falcon National shares and he thereupon checked the National Stock Summary in order to learn more about the difference in name and found that until February, 1961, there were two companies using the name, “The American Founders Life Insurance Co.,” one a Colorado corporation whose name had been changed to Falcon National Life Insurance Co., in February, 1961, and the other a Texas company still bearing that name and being the only stock of that name traded and quoted in daily market services after that date.

Mr. Bell then called Dr. Hudson and told him that the shares he had sold to Barrett, Fitch were not what he had assumed them to be, but were in reality shares in a totally different company, Falcon National. Mr. Bell offered to return the 100 shares of Falcon National to him if he would return the money Barrett, Fitch had paid him. Mr. Bell explained the name confusion which had resulted in the mistake and on two or three different occasions offered to return the shares for the money, but each time Dr. Hudson refused to accept the offer of rescission.

Appellant contends that the trial court erred in failing to find that both parties “were mutually mistaken as to a material fact, namely, the true identity of the shares sold, and therefore erred in failing to rescind the contract and place the parties in statu quo.”

In our opinion the evidence shows that the only mistake involved in the transaction in question was appellant’s unilateral mistake induced solely by appellant’s failure to inform itself. It is clear that Dr. Hudson was not guilty of any misrepresentation concerning the stock appellant purchased from him. The evidence shows that after August 1, 1961, witness Bell knew he was dealing with a Texas based company. It also shows that at all times in question there were immediately available to Bell at appellant’s office reference materials which would have shown that there were or had been, two companies with confusingly similar names. He could have checked these in a matter of a-few minutes but he never bothered to do so until long after August, 1961. On August 25, 1961, Bell already had written to Texas to secure information from the company. He then had received an annual report showing that “American Founders Life Insurance Company” was a Texas based company. The annual report and the certificate evidenced by Exhibit 2 show the company names are not exactly identical. Bell obtained physical possession of respondents’ stock certificate (Exhibit 2) a full week prior to the date of payment. On the face of this certificate in bold type appear the words: “Incorporated under the laws of the State of Colorado.” Notwithstanding all this, Bell proceeded with the transaction without bothering to make the small effort which would have disclosed the “mistake.”

It is also quite plain that Dr. Hudson intended to sell the stock he owned without regard as to whether it was stock in a Texas or Colorado corporation. He had some shares in a company which he wished to sell. As far as he was concerned an offer was made to purchase this stock and he sold it. Dr. Hudson certainly was not aware of Bell’s mistaken assumption that his stock was in a Texas company. Under these circumstances there was plainly no mutual mistake of fact justifying rescission as herein sought by appellant.

In the early case of Brown v. Fagan, 71 Mo. 563, it was held: “Equity will not relieve against mistake when the party complaining had within his reach the means of ascertaining the true state of facts, and, without being induced thereto by the other party, neglected to avail himself of his opportunities of information.”

The above case has been cited with approval many times. One of the cases following it is by this Court, Houston, et al., v. Welch, 204 Mo.App. 279, 223 S.W. 1076, a case quite similar to the instant case. That case was an action in equity in which a brokerage house sought to rescind a sale of corporate stock and compel its selling customer to return the purchase price. The defendant owned a certificate of 1000 shares in a corporation named “Consolidated Arizona Copper Mines Company.” Unknown to her and to plaintiff there was another corporation by the name of “Consolidated Arizona Copper Smelting Company.” Some two or three weeks before the sale sought to be annulled, defendant called plaintiffs by telephone and inquired as to the value of her stock. She gave the correct name of her stock and was told it was worth about $1500 less the commission. Sometime later she took her stock certificate to plaintiffs’ place of business and asked what she could get for it. Plaintiffs took the stock certificate, examined it and wired a firm in New York asking at what price 1000 shares of “Consolidated Arizona Copper Mines Company” could be sold. The New York firm wired a reply based upon which plaintiffs told defendant at what price her stock could be sold. Defendant then ordered plaintiffs to sell the stock. Shortly thereafter plaintiffs informed defendant that her stock had been sold in New York. Plaintiffs then made a calculation of the amount due at the price quoted by the New York firm, deducted from this figure their commission and issued defendant a check in payment of the net amount due her. Defendant endorsed her stock certificate in blank, leaving it with plaintiffs, and accepted, and subsequently cashed, plaintiffs check for the net amount plaintiffs had calculated to be due her. Plaintiffs then sent the stock certificate to the New York firm which returned the certificate to plaintiffs and refused to pay for it because the New York firm had made a mistake as to the name of the corporation, thinking it was buying a certificate of stock in the “Consolidated Arizona Smelting Company.” In denying plaintiffs’ prayer for rescission and return of the purchase price paid by plaintiffs to defendant, this court said:

“ * * * whatever mistake the New York firm made, it was one of their own negligence, for they were given the correct name of the stock offered, and used that name themselves when they replied naming the price.
“The petition does not disclose that plaintiffs were the agents of both defendant and the New York broker; and, as stated, the evidence shows that defendant knew only that the stock was being sold in New York. Indeed, the New York firm bought the stock themselves, since they inserted their name in the blank assignment. * * * So that at best, the evidence shows that the defendant sold, through plaintiffs, a certificate of stock to the New York firm, and the plaintiffs, being acquainted with and having confidence in the firm’s meeting its obligations, and according to the usual practice in such matters, paid defendant the money therefor, and then when the New York firm discovered that it had made a mistake (and that through no other cause than their own negligence), it refuses to pay; whereupon plaintiffs sue to recover of defendant on the ground of mistake.
“It would seem that the petition stated no cause of action in equity for a rescission of the contract on the ground of mistake. (Citing cases)
“ * * * it is beyond question that the only one who made a mistake, if one was committed, was the New York firm who, so far as defendant was concerned (and the evidence itself tends to show this), was the purchaser of the stock. Neither the plaintiffs nor defendant did anything to mislead the purchaser. It had the facts fully before it, and the telegrams which passed to and fro admit of no misunderstanding. If the purchaser made a mistake, it was wholly its own fault, which ordinary diligence would have obviated. Hence equity cannot relieve against it. (Citing cases) That plaintiffs have no cause of action against defendant will more readily appear if we leave plaintiffs out of consideration and' treat the transaction as if defendant had herself sold the stock to the New York purchaser, and in fact this is what was done; the defendant having done what she did through plaintiffs. Suppose defendant had herself sold the stock to the purchaser tmder the same circumstances as did the plaintiffs, and suppose the purchaser had paid for it with his eyes open, but by a negligent mistake (as he did agree with plaintiffs to do), could the purchaser in that event have turned and sued defendant to recover the money so paid? We think not, for the mistake, if there was one, was wholly that of the purchaser and a result of his own negligence. Defendant in no way participated therein, nor did she do anything to mislead or deceive the purchaser. Now, merely because the plaintiffs, in accordance with the usual custom in such cases advanced the money and paid it to defendant for the purchaser, gives them no better rights or claim against the defendant than the purchaser would have had if it had paid defendant.” (Emphasis supplied)

It would unduly lengthen this opinion to discuss in detail the many cases cited by appellant. They are clearly distinguishable from the instant case.

The judgment should be affirmed. Your Special Commissioner so recommends.

The foregoing opinion by BROADDUS Special Commissioner, is hereby adopted as the opinion of the Court and the judgment is affirmed.

All concur.


author: HOWARD, Judge.

text:
    Emanuel COLEMAN, Respondent, v. PIONEER STUDEBAKER, INC., a corporation and Robert Livingston, Appellants.
    No. 24393.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.

      Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellants.
    Leonard Rose, Sheffrey, Ryder & Skeer, Kansas City, for respondent.
   HOWARD, Judge.

This is a suit for compensatory and punitive damages for the conversion of money given as a deposit on the purchase of an automobile. Trial to a jury resulted in a verdict for plaintiff in the amount of $55.00 compensatory damages (the amount of the deposit) and $2,500.00 punitive damages. We shall refer to the parties as they appeared below.

Defendants offered no evidence. Plaintiff testified in his own behalf and offered the testimony of two police officers. He also called defendant Livingston as an adverse witness. The record reveals that on Wednesday, August 17, 1963, the plaintiff went to the used car lot of the defendant, Pioneer Studebaker, Inc., and determined that he desired to purchase a 1957 Lincoln convertible. At the request of the salesman he made a $5.00 deposit, was advised that it would be necessary to check his credit and was requested to return in two days. He was told that if his credit was approved it would then be necessary to make an additional deposit of $50.00. He received a receipt for his $5.00 deposit.

Two days later, on Friday, August 19, he returned to the used car lot and dealt with a different salesman. He explained his previous transaction, and the salesman “told me O. K. I could get the car but it would be $50.00 more”. Plaintiff gave $50.00 to the salesman who took it inside the building and returned with a receipt. When he returned with the receipt the salesman advised plaintiff that the car he wanted had been sold. Plaintiff then demanded his money back, but instead of returning the money, the salesman attempted to sell plaintiff a different car. Plaintiff refused to buy any other car, but insisted that he wanted his money back. He was then advised that he could not get his money back “because the guy that unlocked the safe was not there”. Then plaintiff and the salesman went inside the building and the salesman went into a back office in the building where Mr. Livingston was and then returned to plaintiff and again advised him that he could not get his money because the man who unlocked the safe was not there. He told plaintiff to come back later and plaintiff left and returned in about two hours. Plaintiff was again informed that he could not get his money because the man who opened the safe was not there. Plaintiff left, stating that he would come back the following day.

On the following day, Saturday, August 20, 1963, plaintiff returned and was again informed that he could not get his money because the man who opened the safe was not there. Plaintiff left and in two or three hours returned, and again made a demand for the return of his money. He was again informed that he could not get his money because the man who opened the safe was not there. Plaintiff then called the police.

Two policemen responded to the call and entered the building with plaintiff. The police officers testified that there were three men in the back room and when they asked for the man in charge the defendant Livingston stated that he was in charge. On the policemen’s inquiry as to what the trouble was, defendant Livingston stated that it was just a small misunderstanding and that “he would recognize the $50.00 receipt”. Livingston was not certain about the $5.00 receipt, but a man from another car lot operated by the corporate defendant directly across the street, came over and advised Livingston that the $5.00 receipt was all right. Livingston then said that “he would recognize both of them” and initialed both receipts on the back. Livingston then told plaintiff that he was OKing the receipts but that plaintiff would have to go across the street to the furniture department, which was on the northeast corner of the same intersection, and the cashier would give him his money. The police then left and plaintiff proceeded across the street as directed. When plaintiff arrived at the cashier’s window, a woman was ahead of him. There was some transaction between this woman and the cashier in which money changed hands. When it came plaintiff’s turn at the cashier’s window, the cashier told him that the man who opened the safe was not there and he could not have his money. When plaintiff turned away from the cashier’s window, he saw Livingston standing a short distance behind him. Plaintiff told Livingston that he could not get his money and Livingston just looked at him and did not say anything. Plaintiff then called the police again. When one of the policemen who had been there on the first call returned, plaintiff explained the matter to him, and at that time a man who plaintiff knew only as “Don” arrived (it appears that this was Don Melching, who also was an officer of the corporate defendant), and told the police officer and plaintiff that plaintiff could not have his money because he still owed him (Don) money on a car he had previously purchased from him. The policeman then advised plaintiff to call either the city counselor’s office or a lawyer and the policeman left. The police officer observed other people engaged in cash transactions with the cashier during this time.

Plaintiff then left without his money and it has never been returned to him. Plaintiff testified that the defendant Livingston was present when Don appeared on the scene and made his statements, but the police officer did not remember him being present. Plaintiff specifically denied that the first $5.00 was paid to cover the cost of a credit check. He insisted that it was a deposit. He stated that when he made both the $5.00 deposit to the first salesman and when he gave the $50.00 to the second salesman, the salesmen took the money inside the building and into the back office where defendant Livingston was located and returned with the receipt, which was given to plaintiff. He did not see either salesman give the money to the defendant Livingston, and did not see Livingston write out either receipt. He did not overhear any conversation between either of the salesmen and Livingston. When called as an adverse witness by plaintiff, Livingston testified that he was president of Pioneer Studebaker, Inc., and as such had “chief management duties” of the corporation. He testified that the corporation engaged in the business of selling new cars, used cars, furniture, and operated a collection agency. He said he did not have any memory of this transaction and did not remember putting his initials on the back of the receipts; however, he denied telling anyone not to give plaintiff his money. He did not testify further.

Defendants’ brief has four points alleging error of the trial court. The first three points are each followed by the citation of one case as authority for such point. There is no citation of authority for point four. The first and third points of defendants’ brief deal with error as to the individual defendant Livingston only. Point one contends that the verdict against Livingston was not supported by substantial evidence and that the court erred in overruling Livingston’s motion for a directed verdict. On such allegations of error we consider the evidence in the light most favorable to plaintiff. We have heretofore set out the evidence in some detail.

From the circumstances in evidence the jury was not required to believe the repeated, parrot-like recitals that the man who opened the safe was not there. This mythical man was never identified. The jury could properly have concluded that money was in fact available (various other persons were observed in transactions with the cashier wherein money changed hands) either from the open safe or from other sources. Also the jury would certainly be justified in finding that the defendant Livingston, as chief executive officer of the corporation, could open the safe or could see to it that plaintiff’s money was returned to him. This money obviously belonged to plaintiff and not to defendants or either of them. This involves reasonable inferences which the jury would be justified in drawing from plaintiff’s evidence concerning matters peculiarly within the knowledge of defendants and their employees. The defendants offered no evidence. Livingston did not testify except to deny any memory of the transaction, and neither he nor the corporate defendant produced Don Melching (an officer of the corporation) or any of the employees as witnesses. From this failure of the defendants to produce witnesses under their control to testify concerning such matters, it could properly be inferred that such testimony, if produced, would have been unfavorable to defendants. See Irle v. Irle, Mo.App., 284 S.W.2d 44 and cases cited therein. It was not necessary in this civil action for the jury to find a theft of the money, as was pleaded by the plaintiff, but they may well have done so. In any event it is beyond question that plaintiff’s money was converted by the corporate defendant without even a scintilla of justification. The jury could also find that the defendant Livingston aided and abetted such conversion. Thus there was sufficient evidence to justify the jury’s verdict and the court did not err in overruling defendant Livingston’s motion for directed verdict. In reaching this conclusion, it is not necessary to base an inference on an inference as prohibited by the holding in Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A.1918C, 715, as defendants contend.

Point three of defendants’ brief alleges that the court erred in giving instruction No. 2 as to the individual defendant Livingston because such instruction did not require a finding that Livingston acted intentionally, wilfully, knowingly or negligently. What we have heretofore said largely disposes of this contention. Defendants cite only the case of Pitcock v. Higgins, Mo.App., 239 S.W. 870 in support of this contention. This case is cited for the proposition that intention is an essential element of liability for conversion. This same case points out that such intent may be inferred from the facts and circumstances in evidence, and certainly here, the facts as set out would amply justify the conclusion of the jury that the defendant Livingston intentionally and knowingly aided and assisted in the conversion of plaintiff’s money. The questioned instruction requires such a finding. Both defendants clearly acted in opposition to the rights of plaintiff concerning the money in question and were guilty of conversion. See Koch v. Branch & Crookes, 44 Mo. 542, State v. Pate, 268 Mo. 431, 188 S.W. 139, and Schulte v. Florian, Mo.App., 370 S.W.2d 623.

Defendants also contend (and this contention applies to both the corporate and the individual defendants) by point two of their brief that the verdict awarding punitive damages was not supported by substantial evidence because there was no evidence of malice, wilfullness or wantonness. In support of this contention defendants cite Davis v. Nash Central Motors, Mo.App., 332 S.W.2d 475. This case is in fact authority for the proposition that the malice necessary to support an award for punitive damages is properly defined as “the intentional doing of a wrongful act without just cause or excuse”. Here it is apparent that both the corporation and the defendant Livingston acted knowingly and with intent to convert plaintiff’s money wrongfully, without any possible justification or valid claim thereto. They intended to deprive plaintiff of his money, and, in fact, have done so up until the present time.

It is contended that Livingston’s intent to convert is negatived by the fact that Livingston approved the return of the money in his office in the presence of the policemen. The effect of his good deed is entirely dissipated by the rest of the evidence including his actions shortly thereafter, when the police had gone, and when he permitted his cashier to refuse the return of the money. Defendant also argues that the corporation claimed a set-off and thus there was no intention to convert the money. There is absolutely no evidence to support this claim of set-off. In the first place, set-off was not pleaded. In the second place defendants introduced no evidence and consequently no evidence of set-off. In the third place plaintiff’s testimony, which is all the evidence there was touching that point, shows that he had not bought a car from Pioneer Studebaker, Inc., but once had bought a car from the individual named Don; that such car had been repossessed and there was no balance claimed. Thus all the evidence in the case clearly shows that there could be no claim of set-off by either the corporate defendant or by Livingston. Under these circumstances, the court properly instructed the jury on punitive damages and there was ample evidence to support the jury’s verdict. It would have been astonishing if the jury had failed to return a verdict for punitive damages.

Point four of defendants’ brief alleges error by the trial court in giving instruction No. 4 for plaintiff because said instruction allowed recovery of “all money held in opposition to plaintiff’s claim” and did not require that the retention be wrongful. This instruction authorized an award of damages only if the jury found the issues in favor of the plaintiff under plaintiff’s verdict directing instruction No. 2. This latter instruction required a finding that the retention was wrongful. The evidence showed beyond all possible doubt that the retention was wrongful. No authorities are cited in support of this contention by defendants. They argue that the instruction was broad enough to allow recovery of moneys other than the $55.00 in question. This complaint is not valid because there is no evidence of any moneys, other than the $55.00, being retained. Defendants also argue that the jury might have inferred that the first $5.00 was paid by plaintiff to cover the cost of a credit check. There was no evidence to support such a conclusion. We must remember that the defendants did not produce any evidence and the plaintiff specifically testified that the $5.00 was not paid to cover the cost of the credit check but was paid as a deposit on the automobile.

From a careful study of the record in this case, we find no error. The verdict was for the proper party and the judgment rendered thereon is therefore affirmed.

All concur.


author: CROSS, Presiding Judge.

text:
    Mildred L. WILSON, Respondent, v. EMERY BIRD THAYER COMPANY and Commercial Union Insurance Company of New York, Appellants.
    No. 24482.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.

      Fred H. Metcalf, Kansas City, for appellants.
    Theo C. Anderson, Kansas City, for respondent.
   CROSS, Presiding Judge.

This case arose as a claim under the Workmen’s Compensation Law. The employer, Emery Bird Thayer Company and its insurer have appealed from a judgment of the circuit court affirming the Industrial Commission’s final award of compensation benefits in the total sum of $3,246.50 to claimant-employee, Mildred L. Wilson. The facts pertinent to the issues for decision are here set out and will be considered in the light most favorable to the prevailing party. Harper v. Home Imp. Co. et al, Mo.Sup., 235 S.W.2d 558.

Claimant testified that on April 27, 1964, and for more than twelve years prior to that date, she was employed by Emery Bird Thayer Company as chief operator of its telephone switchboard. In that capacity she supervised the switchboard and two other operators. On the day above- named, at some time between 4:30 and 5:00 P.M., claimant relieved the operator who had previously been on duty. Working alone, claimant proceeded to operate two “positions” — her own which directly faced her as she was seated upon a tall “operator’s” chair, and the position next adjacent on her right which is identified as the “second position”. Each position was a panel of connecting apparatus about two feet wide normally facing the operator to which it was assigned. While so working, claimant reached over to the “second position” to make some “disconnects” by pulling the connecting plugs out of the “jacks” they were in. As claimant “jerked” one of the plugs out, her feet slipped on a metal foot rail, she lost her balance, and she fell in a twisting position from her own operator’s chair onto and against the chair next to her, knocking off her headset which fell to the floor. Within a few minutes she suffered pain in her neck, arm and shoulder. She quit work at five o’clock and went home. Her pain was severe that night and became progressively worse. Next morning her daughter called the employer by telephone and gave notice of the accident. At the employer’s direction claimant consulted Dr. Flanders, who was the company physician. Dr. Flanders initially treated her on April 28th, 29th and 30th, and then made an appointment for May 5th for claimant to consult Dr. Barnard, an orthopedic doctor with the Dixon-Dively Clinic. Claimant was not consulted as to the selection of Dr. Barnard and had nothing to do with securing the appointment.

Dr. Barnard examined claimant and proceeded to treat her at the clinic. She was given traction and other therapy. Her condition did not improve and on June 29th she entered St. Luke’s Hospital on the advice of and through arrangements made by Dr. Barnard. She was there placed in traction and otherwise treated under the care of Dr. Barnard, until the date of her release from the hospital on July 3, 1964. She continued to see Dr. Barnard at the Dixon-Dively Clinic until he released her on September 21, 1964. During this time she was still having pain and complained of trouble she was having in opening her jaws. This was a condition diagnosed as having resulted from the traction she had undergone in the course of her treatment. This jaw condition did not exist prior to her entry in the hospital. In dismissing claimant, Dr. Barnard informed her he could do nothing further for her jaw complaint.

Claimant further sought relief from the pain and disability of her jaw at K. U. Medical Center and from various other physicians, dentists and oral surgeons. She was advised by Dr. McCoy that she needed surgery to relieve the jaw injury. She was unable to avail herself of the recommended operation because she “didn’t have any money to pay for it”.

It appears by stipulation into the record that “the insurer cut off all medical treatment as of May 20, 1964”. At some time, which is not clearly shown, appellants advised the Dixon-Dively Clinic that they would not pay the cost of claimant’s medical services after the date above noted. Claimant testified that this fact did not become known to her until early in June, 1964. Notwithstanding, claimant continued to receive the services and treatment (including hospitalization) from doctors which had been selected by appellants, until her release by Dr. Barnard on September 21, 1964. In so doing, and by reason of the employer’s refusal to pay for those medical services, she became obligated to pay medical bills totalling $596.50 for medical and hospital services received within the 90 day period and $128.50 for services received thereafter (for which no claim is made).

Claimant presently complains of pain in her back, neck, shoulder and arm, and that she still has the trouble with her jaw, accompanied by “terrible bad earache”. She attributes her back pain and jaw condition to the traction she received. She has not returned to work since she sustained her accident and injuries.

Dr. Duncan examined claimant twice and testified on her behalf. He stated that she was suffering from subacute sprain of the neck, upper back region and upper extremity, (“which patient states is due to her occupation in performing her regular work”), aggravated by the contusion and sprain received April 27, 1964 when she slipped and fell against the adjoining chair. It was Dr. Duncan’s opinion that claimant’s back condition and the injury to the temporo-mandibular joint (her jaw condition) could have been caused by the traction she received in treatment following her fall and injuries received April 27, 1964. Dr. Duncan testified that as of April 5, 1964 (the date of the hearing before the referee) claimant had a IS per cent permanent partial disability of the body as a whole.

Dr. Pipkin examined claimant once and testified on behalf of the employer and insurer. He stated that in his opinion claimant had limitation of shoulder motion amounting to 25 per cent arising from an arthritic condition. The fall she had on April 27, 1964 could have aggravated that condition. Dr. Pipkin additionally found some limitation of motion in claimant’s cervical spine, disability in her shoulder and arm, and some limitation of motion in her right leg. He did not X-ray claimant’s temporomandibular joint because he understood “she was to see a specialist about her jaw”.

The referee found that claimant had sustained an accident which arose out of and in the course of her employment with Emery-Bird-Thayer, and in which she received injuries resulting in 10 per cent permanent partial disability. The referee awarded compensation accordingly in the total sum of $1700 and an additional lump sum of $200 for facial disfigurement, but denied claimant an allowance for medical aid expenditures she had made and further denied compensation for a healing period during the 90 day period following the accident.

On final hearing the Industrial Commission made findings of fact and conclusions of law as follows:

“We find from all the credible evidence upon the whole record that Mildred L. Wilson, Employee, sustained injury to her arm, shoulder, upper back, temporomandibular joint and body as a whole as a direct result of an accident arising out of and in the course of her employment with Emery Bird Thayer Company on April 27, 1964.

“We further find from such evidence that Employer and Insurer had notice that Employee sustained a compensable accident on April 27, 1964 and that they refused to provide Employee with necessary medical and hospital treatment to cure and relieve her from the effects of her said injury within the first ninety days following said accident and injury on April 27, 1964, and the Employee was required and did procure such medical and hospital treatment at a cost of $596.50 to her within said ninety day period and the Employer and Insurer are hereby ordered to pay said sum to the Employee. Tr. 78, Slider v. Brown Shoe Company, 308 S.W.2d 306, l. c. 310; Tr. 88 and 89.

“We further find that Employee sustained temporary total disability as a direct result of the aforesaid accident for a period of twenty weeks and that the Employee is entitled to said twenty weeks temporary total disability as a healing period. Tr. 50, 57 and 59.

“We further find from such evidence that Employee sustained ten per cent permanent partial disability to her body as a whole as a direct result of said accident”.

On the basis of the quoted findings and conclusions, the Industrial Commission made its final award allowing claimant the total sum of $1700 for permanent partial disability, $596.50 for the value of medical aid not furnished by the employer or insurer, and $950.00 as compensation for a healing period of 20 weeks.

Appellants make no complaint of the findings of fact made by the Industrial Commission. Nor do they question the Commission’s award to claimant totalling $1700 for permanent partial disability. In fact, the final statement in appellants’ brief is that “the award of the referee should be reinstated”. Appellants’ brief contains only one point, which is presented in the form of a question, as follows: “Is the employer and insurer liable for costs of medical treatment and increased disability caused by that treatment when the employer refused to authorize it ? The same arguments apply to the healing period which is in dispute”. As developed in argument, appellants take the position they are not liable (1) for the cost of medical treatment received by claimant after May 20, 1964, (2) for aggravation of her accidental injury resulting from treatment received by her after that date, or (3) for an award for any additional healing period due to such increased disability. We consider these submissions in the order stated.

The right of an injured employee to receive medical, surgical and hospital treatment, and the incumbent duty upon the employer to provide those services, were defined by V.A.M.S., Section 287.140 in effect at the time in question, quoted in pertinent part as follows:

“In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical and hospital treatment, including nursing, ambulance and medicines, as may reasonably be required for the first ninety days after the injury or disability, to cure and relieve from the effects of the injury, and thereafter such additional similar treatment as the commission by special order may determine to be necessary. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense”.

The duty of the employer to provide treatments so required by statute is unqualified and absolute. See Johnson v. Kruckemeyer, Mo.App., 29 S.W.2d 730. In Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306 (cited by the Commission in its findings) the court interpreted Section 287.140 as follows :

“Under Section 287.140 RSMo 1949, V.A.M.S. (as amended), an employer has the privilege in the first instance of designating and selecting the physician and hospital to render the care required by the statute. However, if an employer, with notice that an employee has sustained a compensable accident (Aldridge v. Reavis, Mo.App., 88 S.W.2d 265, 267(4)), refuses or neglects to provide or tender necessary medical or hospital treatment, the injured employee need not lie helpless or in pain; but, in such circumstances, the employee may procure necessary treatment (within the statutory limitations) and have an award against the employer for the reasonable cost thereof”. (Emphasis supplied.)

Also see Hammett v. Nooter Corp. (App.1954) 264 S.W.2d 915; Evans v. Chevrolet Motor Co. (1937) 232 Mo.App. 927, 105 S.W.2d 1081, transferred, Sup., 102 S.W.2d 594; Schutz v. Great American Ins. Co. (1937) 231 Mo.App. 640, 103 S.W.2d 904; and Klasing v. Fred Schmitt Contracting Co. (1934) 335 Mo. 721, 73 S.W.2d 1011.

Appellants cannot complain in this case that the employer was denied the right to select the physicians or other agencies of treatment for claimant. She cannot be charged with any refusal to accept the treatment offered by the employer. Nor at any time within the 90 day period did she seek the services of any physician other than those of her employer’s choice. On the day following her injury she placed herself in the hands of Dr. Flanders, the employer’s physician, at its direction, and in turn accepted the treatment of Dr. Barnard who was selected by Dr. Flanders. While she was under Dr. Barnard’s care and prior to her release by him, the appellants arbitrarily, and without any justification shown, “cut off all medical treatment as of May 20, 1964”. Under these circumstances claimant was at liberty to procure her own necessary treatment “and have an award against the employer for the reasonable cost thereof”. Slider v. Brown Shoe Co., supra. Notwithstanding she had the right to select other doctors and agencies of treatment, she chose to remain with the physicians the employer had originally chosen. Accordingly she continued to accept medical treatment from Dr. Barnard and received hospital treatment upon his advice and by his arrangement. Appellants have refused to pay for those services and claimant has obligated herself to do so. It is convincingly apparent from the record that the services were reasonably necessary. The amounts of charge therefor and their reasonableness have not been questioned. It is our view that these facts constitute competent and substantial evidence sufficient to support the Commission’s finding that the employer “refused to provide the Employee with necessary medical and hospital treatment * * * within the first ninety days * * * ”, and to justify the Commission’s award to claimant of a sum representing her expenditures to procure such treatment. The Commission has correctly interpreted and applied V.A.M.S., Section 287.140.

We next consider appellants’ contention that the employer is not liable for “the increased disability” caused by the treatment of claimant’s injuries, which consist principally of the “new condition in her jaw”. The substance of appellants’ argument on this question is as follows: “It is the appellants’ contention here that the refusal to provide further treatment is an act of control of the medical situation and as such constitutes such an intervening event as to break the chain of causation giving rise to compensability for the new condition”.

It is a well established rule in workmen’s compensation law that “injuries which follow as legitimate consequences of the original accident are compensable, and such accident need not have been the sole or direct cause of the condition complained of, it being sufficient if it is an efficient, exciting, superinducing, concurring, or contributing cause”. Manley v. American Packing Co., 363 Mo. 744, 253 S.W.2d 165. As stated in 1 Larson, Workmen’s Compensation Law, Sec. 13.11, p. 192.59: “When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct”. Thus, “Where, without the fault of the employee, his original compensable injury is aggravated by medical or surgical treatment, there is such a causal connection between the original injury and the resulting disability or death as to make them compensable * * .” 99 C.J.S. Workmen’s Compensation § 207, p. 670, citing Schumacher v. Leslie, Mo.Sup., 232 S.W.2d 913, (cited and relied upon by appellants).

Concededly, and as all well reasoned authority recognizes, there must be no intervening independent cause to break the chain of causation between the new injury or aggravation and the original injury in order that liability be imposed upon the employer for the consequential results. However, we do not accept appellants’ theory that their “refusal to provide further treatment” constitutes the requisite “break” in the chain of causation necessary to relieve them from liability for claimant’s additional injuries. The “refusal” relied upon has significance only as an attempted disclaimer of liability for the cost of additional treatment for claimant and relates only to the abstract matter of monetary obligation to pay for those services. Appellants’ “refusal” had no impingement or effect whatsoever on the physical aspects of the causation here considered. The chain of causal events producing claimant’s additional injuries was consecutive, uninterrupted and complete and did not include the employer’s disclaimer of legal duty. According to undisputed evidence the sequence of causation began with the accidental injury, progressed through medical treatment administered claimant by physicians of appellants’ selection, and culminated in the aggravation of injury resulting from traction treatment while claimant was still under their care — all without intervention of any other efficient, intervening, independent agency destroying the connection, and without fault on the part of claimant. We rule the instant question in accordance with these views. Appellants have cited no relevant authority to the contrary.

In view of our rulings above made, it is necessarily our further determination that appellants’ refusal to provide claimant medical, surgical and hospital treatment within the first 90 days, as required by law, imposed no limitation on the Commission’s statutory authority to award claimant twenty weeks’ temporary total disability as a healing period.

It is our final conclusion that the findings, conclusions and award of the Commission, in all aspects, are adequately supported by competent and substantial evidence, are not contrary to the overwhelming weight of the evidence, and rest upon a sound interpretation and proper application of the law.

The judgment is affirmed.

All concur.


author: SPERRY, Commissioner.

text:
    Norma ROARK, Appellant-Plaintiff, v. Arlo GUNTER, Respondent-Defendant.
    No. 24387.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.

      Allan R. Browne, Ennis, Browne & Martin, Edgar J. Keating, Kansas City, for appellant.
    Roy Larson, Jr., Sprinkle, Carter, Sprinkle & Larson, Kansas City, for respondent.
   SPERRY, Commissioner.

This case was transferred to this court by the Supreme Court, Roark v. Gunter, 391 S.W.2d 258.

It comes to the writer of this opinion on reassignment.

Plaintiff, while a passenger in an automobile, received severe personal injuries when the vehicle in which she was riding was struck as a result of a collision between an automobile being operated by the above named defendant and one being operated by George R. Davis. Plaintiff sued both operators for the sum of $25,000.00. She had a verdict against Mr. Davis in the sum of $16,250.00 but, on order of the court, remitted $4,000.00 thereof. The amount of the judgment was $12,250.00, from which no appeal was taken. The verdict was for defendant Gunter. Plaintiff appeals as to Gunter. We will refer to the various parties involved as plaintiff, Gunter, and Davis.

The only points presented on this appeal concern the propriety of the giving of certain instructions for Gunter. The trial began on March 9, 1964. MAI were not used. The pertinent facts in evidence must be set out fully and, in reviewing the case, we will view the evidentiary facts, and the inferences to be drawn therefrom, from a standpoint most favorable to Gunter’s theory.

Plaintiff pleaded that the collision occurred at about 3:00 P. M., August 21, 1961, while the automobile in which she was riding was proceeding eastward, in the south (outside) traffic lane, of 12th street, in Kansas City, Mo., in the intersection with Washington street, a north-south street; that Davis was proceeding east on 12th and was making a left hand turn into Washington; that Gunter was driving an automobile west on 12th, in the intersection, and that Davis and Gunter negligently caused their automobiles to collide in the intersection, knocking the Davis vehicle into violent collision with the vehicle in which plaintiff was a passenger, thereby causing plaintiff to suffer severe personal injuries.

Gunter pleaded a general denial and admitted that he was proceeding at the time and place alleged by plaintiff; that Davis was operating his automobile at the time and place alleged by plaintiff; and that Davis was then making a left hand turn in front of Gunter. He denied any negligence on his part.

Davis answered, admitting the date of the accident and the public nature of the streets involved. He admitted the negligence of Gunter and denied every othei allegation contained in plaintiff’s petition.

It was shown in evidence that the lawful speed on both 12th and Washington, was 25 miles; that 12th is an east-west street, 36 feet wide with a line along the center; that it was capable of carrying two lanes of traffic, each way; that Washington is a north-south street 46 feet wide, limited to one way traffic.

The plaintiff was riding on the right hand side, front seat, of an automobile operated by her husband. Mr. Roark testified to the effect that he was proceeding eastward on 12th street, in the lane next to the curb; that the Davis car was slightly ahead, next to the center line; that there were no vehicles parked on the south side of 12th; that, as he approached Washington, it was raining and he was proceeding at a speed of 10 to 15 miles per hour; that the light was red when he reached Washington; that both his car and that of Davis stopped, side by side; that the Gunter car came over a rise two hundred feet east and, as the light changed to green, came through the intersection at 30 to 35 miles per hour; that it was travelling in the lane next to the center line; that, when the light changed, he, Roark, entered the intersection and was proceeding eastward at a speed of from 5 to 10 miles per hour, at the same time the Davis car entered and immediately began a slow left turn into Washington, with turning lights on; that, when the Davis car was at an angle, not having completed the turn, the Davis and Gunter cars collided; that the left fronts of the cars came together, at an angle; that the front of the Davis car was caused to move to the west, causing its right rear fender to strike the Roark car between its left front fender and front door, swinging it around with the Davis car, so that its left front came in contact with the right front of the Davis car; that the Gunter car did not strike the Roark car; that the Gunter car did not swerve or sound a signal as it came through the intersection; that the Davis car was proceeding at from 5 to 6 miles per hour immediately prior to the collision.

Plaintiffs testimony corroborated that of her husband.

Cpl. Whitney, Kansas City police, arrived at the scene shortly after the collision occurred. He stated that the Davis and Gunter cars collided at a point 5 feet east of the west curb line of Washington and 20 feet north of the south curb line of 12th ; that the left front of both cars came together and were damaged; that, when he arrived, the Davis car was headed northeast and the Gunter car was headed west; that they were 4 feet west of the point of impact; that the speed limit at this intersection is 25 miles per hour and Washington is 46 feet wide. He learned of no witness to the collision.

Davis stated that, as he approached and entered the intersection, the light turned green; that his speed was from 5 to 10 miles per hour; that he began a “rolling” left turn into Washington; that he saw the Gunter car, which was travelling at 30 miles per hour; that he slowed and was practically stopped; that his vehicle was struck in the rear by the Roark car and was knocked forward into the path of the Gunter car; that he could have stopped within a foot or two but for the blow from the Roark car; that the collision with Gun-ter occurred 2 or 3 feet north of the center line of 12th; that the Gunter car approached in a straight line and did not swerve; that the front of his car was a foot north of the center line of 12th when struck by the Roark car; that he first learned of an eye witness to the collision on Sunday night, prior to the trial.

Mr. Dickman stated that he was standing on the sidewalk at the northeast corner of the intersection and saw the collision; that he did not tell anyone that he saw it until Sunday night, prior to the trial, when Davis’ attorney called him by long distance; that he saw the Roark car enter the intersection from the west, after the Davis car was in it and was turning left; that the Roark car entered the intersection behind the Davis car when the latter was slowing or stopping for a left turn; that it hit the rear end and knocked it several feet forward in front of the Gunter car, which was approaching, and which did not swerve. Apparently, the jury was not greatly impressed by this testimony regarding a rear end collision, because it awarded a verdict in favor of plaintiff and against Davis.

Gunter stated that he was driving his automobile west, on 12th, in the inside lane, 2 or 3 feet north of the center line; that, as he approached the intersection, the light turned green and he entered; that his speed was from 15 to 20 miles per hour; that there were no cars ahead travelling west; that, as he entered the intersection, the Davis car entered it from the west, with its left side 4 feet south of the center line; that, as Gunter entered, the Davis car cut to the left; that Gunter hit his brakes and, at that time, the Davis car “lurched” forward several feet into Gunter’s lane; that Gunter skidded his wheels 12 feet; that the force of the collision, which occurred 8 to 10 feet east of the west curb of Washington moved his car 2 feet north; that, after the collision, the front of the Gunter car was 4 feet east of the west curb line of Washington and to the north of its position prior to the collision; that Davis was making his turn at 10 miles per hour; that he did not hear, at the scene of the collision, that the Davis car was rear ended; that, after the collision occurred, the Roark car was in the south lane of traffic, from 8 to 10 feet east of the Washington curb line.

Plaintiff claims instruction No. 6 given for Gunter, is fatally erroneous. It provides as follows:

“The court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in evidence Defendant Gunter was operating his automobile west-bound on 12th street in the lane next to the center line and that Defendant Davis was operating his automobile eastbound on 12th street in the lane next to the center line, if so, and if you find and believe that as the Defendant Gunter approached and entered the intersection of Washington street, the Defendant Davis’ automobile turned left into the lane and path of the Defendant Gunter automobile, if so, and if you find that at that time the Defendant Gunter applied his brakes and skidded into collision with the Defendant Davis automobile, if so, and if you further find and believe from the evidence, that the Defendant Gunter in the exercise of the highest degree of care was unable to avoid coming in contact with the Defendant Davis’ automobile, and if you find that in operating his automobile as aforesaid the Defendant Gunter was not negligent, then you are instructed that your verdict shall be in favor of Defendant Gunter”.

Plaintiff’s instruction No. 2 provides, in part, as follows:

“ * * * and if you further find that said negligence, if any, of defendants consisted in this:

“As to Defendant Gunter, that he operated his motor vehicle at said time and place in excess of the speed limit, and failed to exercise the highest degree of care to give a reasonably adequate warning of his approach, to other vehicles approaching and in said intersection, if so, and thereby failed to exercise the highest degree of care in the operation of his said vehicle, if so; as to Defendant Davis, that he failed to exercise the highest degree of care, if so, to keep and maintain a reasonably good and sufficient lookout for other vehicles and failed to exercise the highest degree of care in the operation of his vehicle at said time and place, if so, by suddenly and unexpectedly, if so, without exercising the highest degree of care to give a reasonably adequate warning, if so, turning left at said intersection; and if you find that such failures, if any, by defendants, were negligence, and directly caused injuries, if any, and damage, if any, to plaintiff, Norma Roark, then it becomes your duty to find for the plaintiff, Norma Roark, and against both defendants”, (emphasis ours).

Since the Verdict was for Gunter we must accept all evidence favorable to his theory of defense. He was entitled to an instruction submitting his theory notwithstanding it may conflict with plaintiff’s instruction and with its evidence offered in support. Thurman v. St. Louis Pub. Serv. Co., (Mo.), 308 S.W.2d 680, 684; Highfill v. Brown et al. (Mo.), 340 S.W.2d 656, 661, 92 A.L.R.2d 861. Plaintiff says instruction No. 6 is in conflict with plaintiff’s instruction No. 2 and ignores the issues of negligent speed and failure to warn of intention to drive through. Under Gunter’s evidence his speed was well under that prescribed by ordinance and he had no warning of impending danger until the Davis car cut into his lane of travel and suddenly moved forward several feet. At that time, he stated, he braked and skidded his car. There was no evidence tending to prove that there was any danger until suddenly Davis entered the eastbound traffic lane, and no evidence that speed caused the collision. This is true under Gunter’s theory and evidence, and it is not controverted except that Roark stated Gun-ter’s speed was 30 to 35 miles per hour. It is not a converse instruction but it is based on Gunter’s theory and is supported by his testimony, and by Davis’ evidence that his automobile was suddenly knocked in front of Gunter’s car.

It is said that the instruction is erroneous in that it prevents the jury, by omission, from considering reasonable inferences to be drawn from the evidence, particularly Gunter’s failure to warn, and Gunter’s excessive speed. The evidence does not tend to show that the accident could have been avoided if Gunter had slowed, or swerved, at that time, so as to avoid the collision. Nor were there facts in evidence from which it appears that the collision might have been avoided by a warning signal given after the danger appeared. Both drivers were watching each other until the collision occurred. Gunter’s theory and evidence was that there was no sign of danger until the Davis car suddenly moved into his path across the center line of 12th street. Davis’ evidence is corroborative of that fact, and instruction No. 2 predicates a verdict against Davis on a sudden movement into Gunter’s lane of travel. The jury was required to find that Gunter was in the exercise of the highest degree of care and was not negligent.

Plaintiff also alleges error in the instruction because it prevented the jury from considering the evidence and reasonable inferences deducible therefrom. The court gave its instruction No. 1 (No. 2.01 MAI) which provides, in part, as follows:

* * ⅜

“No. 4. It is your duty to determine the facts and to determine them from the evidence and the reasonable inferences arising from such evidence, and in so doing you must not indulge in guesswork or speculation.

« * * * »

In view of the wording of instruction No. 6 and of the giving of instruction No. 1, no prejudicial error was committed.

It is contended by plaintiff that the instruction is erroneous because “it is completely silent as to the degree of care” required by Gunter. She cites Jolley v. Lowe, (Mo.), 362 S.W.2d 741, 743, which was a converse instruction given in a humanitarian case. The court struck it down because it fixed no standard of care required of defendant. It is not controlling her< because instruction No. 6 required a finding that Gunter, in the exercise of the highest degree of care, was unable to avoid the collision and that he was not negligent in the operation of his automobile. 'It is also criticized on the grounds that it over-emphasizes Gunter’s side of the case. We believe that it fairly submits his theory of defense and is not erroneous as laying down a personal test of Gunter’s duty. Such would be a strained construction of the language, and is highly technical, and is not justified in this case. It is unlike the instruction discussed in Dixon v. General Grocery Co., (Mo.), 293 S.W.2d 415, 431, cited by plaintiff, and that ruling is not controlling here.

Plaintiff contends that Gunter’s instruction No. 7 is prejudicially erroneous. That instruction is as follows:

“The court instructs the jury that no vehicle shall be turned left across the roadway when any other vehicle is approaching where the same may create a traffic hazard. Therefore, if you find and believe from the evidence that at the time and place mentioned in evidence, the Defendant Davis turned his automobile to the left across the roadway and into the path of the Defendant Gunter’s automobile, at a time when the Gunter automobile was approaching from the opposite direction in such close proximity as to constitute a hazard, if so, and if you find that in so doing, the Defendant Davis was negligent, if so, and if you find and believe that such negligence was solely and directly responsible for the plaintiffs injuries, if any, and if you further find that the Defendant Gunter was not negligent as outlined in other instructions, then your verdict must be for Defendant Gunter”, (emphasis ours).

Plaintiff contends that it is erroneous because it refers to the alleged non-negligence of Gunter “as outlined in other instructions”. We have ruled this point in our discussion of instruction No. 6.

It is said to incorrectly state the law by use of the word “hazard” in lieu of “immediate hazard” as it appears in Section 304.021 RSMo 1959, V.A.M.S., which provides:

(( * * *

“3. The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.

“* * *” (emphasis ours).

There was testimony from plaintiff and her husband to the effect that Gunter’s car was 200 feet east of them when they first saw it, at a time when the Roark and Davis cars were stopped on the light; that the Roark and Davis cars entered on the green light; that Gunter entered on the green light and came on through at from 30 to 35 miles per hour. Davis said he saw the Gunter car enter the intersection, and he slowed; that he was in a slow “rolling” turn and stopped with the front wheels 1 foot north of the center line; that the Gun-ter car was then 40 to 50 feet from him; that his car was hit by the Roark car and was knocked forward into Gunter’s path. Witness Dickman corroborated Davis’ version. Gunter said he entered the intersection on the green light, travelled west at 15 to 20 miles per hour; that he saw the Davis car in a left turn, and that he saw no danger until suddenly the Davis car went forward into his lane of travel. The instruction, as given, was not in contravention of the statute. It submitted Gun-ter’s theory of defense under the testimony most favorable to him.

Plaintiff says the instruction was offered and given on the theory that after Davis entered the intersection and while Gunter was approaching the intersection it was Davis’ duty to yield the right of way, whereas, it is argued, Davis was only bound to yield to one coming from the opposite direction and so close to the intersection as to constitute an immediate hazard. She says that the instruction, in effect, lays a heavier liability on Davis than the statute imposes, thereby benefiting Gunter. In view of the evidence most favorable to Gunter, and to his theory of the case, we think the criticism is unjustified. There is no evidence directly contradictory to that of Davis and Gunter, which was to the effect that each saw and observed the other after both were in the intersection. The situation described by the evidence in this case, is unlike that in Steele v. Goosen, (Mo.), 329 S.W.2d 703, 709.

It is a sole cause instruction. It required the jury to find that, at the time Davis entered Gunter’s lane of travel, in a left turn, the Gunter car was approaching from the opposite direction in such close proximity as to constitute a hazard. In Anthony v. Jennings, (Mo.App.), 368 S.W.2d 533, 538, this court approved language to the effect that the hazard referred to in the statute is created by the closeness in proximity of the approaching automobile on the through highway and that only in that case is he required to yield. Plaintiff’s criticism is not justified.

Plaintiff criticizes instruction No. 8 on the ground that it does not require a consideration of the inferences to be drawn from the evidence. The criticism was adversely ruled in our discussion of instruction No. 6, supra.

It is charged that instruction No. 9 is erroneous because it instructs that the jury may consider whether or not any testimony is in conflict with the physical facts surrounding the collision, and that it may consider that fact in determining the weight to be given such testimony.

There are many physical facts in evidence and the testimony in regard to some such facts conflicted with other testimony. It was a discretionary instruction. It could not have been prejudicial to plaintiff. The point is ruled against her.

. We find no error in Gunter’s instruction.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: CLAY, Commissioner.

text:
    Ruth R. MAXWELL et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.
    As Modified, on Denial of Rehearing July 1, 1966.

      Don S. Sturgill, Gardner L. Turner, Sturgill, Moreland & Turner, Lexington, for appellants.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Henry Smith, Deddo G. Lynn, Lexington, for appellee.
   CLAY, Commissioner.

In this highway condemnation case the landowners appeal from a $40,000 judgment for the taking of 10½ acres of their farm (including certain improvements). Many alleged errors are complained of.

The principal property taken was a strip which ran the length of the western boundary of the farm and a smaller strip from the frontage for the widening of the Winchester Road. On the farm is a magnificent residence but it was not immediately affected by the taking.

The commissioners appointed by the county court awarded the landowners $38,000, and they appealed to the circuit court. The Commonwealth took no appeal. The circuit court jury awarded $40,000. The first contention of the landowners is that the Commonwealth should have been denied the right to introduce any evidence at the de novo trial in the circuit court. This proposition is based on the theory that the Commonwealth’s failure to file some responsive pleading to the landowners’ statement of appeal (filed in the circuit court) constituted an admission that the damages awarded in the county court were inadequate, and consequently the Commonwealth could not introduce evidence on the issue. There are several answers to such contention.

Assuming the statement of appeal and exceptions filed by the landowners in a condemnation case constitute pleadings for certain purposes, KRS 177.087(1) makes no provision for counterpleadings. CR 8.04 specifically provides in part:

“Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”

Even if a responsive pleading would be permissible as indicated in Commonwealth, Department of Highways v. C. S. Brent Seed Company, Ky., 376 S.W.2d 310, CR 8.04 provides that, even if a responsive pleading is required, the failure to deny does not relieve a party of proving his allegations “concerning value or amount of damage”. We know of no rule or principle (other than an admission) which would deprive a party of introducing proof on a triable issue of unliquidated damages.

Two other observations may be made. A condemnation case is a special type of proceeding and (assuming the right to condemn is not questioned) the basic issue, automatically and continuously through any proper appeals, is what constitutes just compensation. Since the determination of that basic issue is the reason for a de novo trial in the circuit court, neither party should be deprived of the right to introduce proof on it (even though by some procedural step in the proceedings or by admission a party may have estopped himself from contesting the upper or lower limit of the award. See Commonwealth, Department of Highways v. C. S. Brent Seed Company, Ky., 376 S.W.2d 310).

Also, considering the particular case before us, where the basis of the landowners’ appeal was that the county court award was inadequate, even if we could say (which we do not) that the Commonwealth had admitted by failure to file a response to the statement of appeal that the damages were inadequate, such admission does not establish to what extent they were inadequate. Consequently the Commonwealth could introduce proof to show they were not as inadequate as claimed by the landowners. (The circuit court award was $2,000 higher than the county court award.) We find no merit in this first allegation of error.

The next contention is that the damage award did not properly include the value of certain fencing which was taken by the Commonwealth. As a result of the taking the Commonwealth removed a substantial length of six-foot chain-link fence. At the time of the trial this fence had been relocated and the Commonwealth’s witnesses did not in their testimony make any allowance for its value. It is apparently the landowners’ contention that some separate award must have been made for it, which of course would violate the proper measure of damages in such a case, i. e., the difference in market value of the land (with improvements) before and after the taking. Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844.

The landowners argue that the new fence, which was erected at the Commonwealth’s expense, is not as good as the old one. This of course would have a bearing upon the market value of the land after the taking and it would be relevant on that issue. However, there was a dispute between the Commonwealth and the landowners’ witnesses as to whether the new fence appreciably lessened the after value of the land. This was a matter for the jury to determine. Whether or not the fence was actually "taken”, the ultimate issue was the difference in the before and after market values of the property, whatever the Commonwealth took.

It is next contended the landowners were surprised when the Commonwealth’s witnesses did not make a separate evaluation of this fence. In the first place, there appears to have been no surprise, and if there had been, the landowners did not ask for a continuance. We are examining this record to find errors, if any, committed by the trial court, and the landowners can point to none in this connection. ■

The next contention is that one of the Commonwealth’s witnesses used an improper factor in fixing the after value of the property. This witness testified that he had considered the loss of access to a part of the highway in determining such after value. Assuming it was an improper factor, obviously its consideration by a witness for the Commonwealth was favorable to the landowners and consequently could not have been prejudicial.

It is next contended the trial court improperly permitted witnesses for the Commonwealth to refer to comparable sales, one of which took place six years before the taking and the other 18 months after the taking (during the course of the trial). This property was somewhat unique and apparently it was difficult to find comparable sales of similar tracts. The objection of remoteness is primarily based upon the irrelevancy of the evidence in the light of changed conditions. We do not think either of these sales was so remote as to lack relevancy. They bracketed the actual time of taking and certainly had some probative value with respect to fair appraisals.

Our recent experience with a great many condemnation cases has convinced us that both the expert witnesses and the jury need all the help they can get in determining the difficult and delicate question of fair values. Concrete considerations, such as comparable sales, are of obvious importance and we are not inclined to declare them too remote if they do have a relevant bearing on valuations in such cases. This is particularly true when the uniqueness of the property makes difficult the discovery of current comparable sales. It may also be observed that experts in the real estate field are in a much better position than this Court to determine if a sale is actually “comparable” (and therefore not irrelevant), and the opposing party can always attack such an expert opinion on cross-examination and rebuttal.

The next contention is that the Commonwealth’s expert witness should not have been permitted to testify to the sale price of the allegedly comparable sale -which took place during the trial because the witness’ information was based upon hearsay. Unless the witness was either the buyer or the seller, or participated in the transaction, inevitably his knowledge of the sale price must be based on hearsay. We recognized this in Stewart v. Commonwealth, Ky., 337 S.W.2d 880. Here the witness was familiar with the property and had been advised of the sale price by another witness who had talked with the owner and had also gained the information from a newspaper story. Particularly in view of the fact that the landowners do not question the correctness of the stated sale price, we are of the opinion that the testimony concerning it was admissible.

It is finally contended that it was improper to permit the county tax commissioner to testify to the assessed value of the farm. It is the rule in this state that such assessed value is not competent if it has not been fixed or turned in by the landowner. West Kentucky Coal Company v. Commonwealth, Ky., 368 S.W.2d 738. In view of the questionable soundness of this rule, which was first enunciated in Commonwealth v. Gilbert, Ky., 253 S.W.2d 264, 39 A.L.R.2d 205 (see Louisville & N. R. Co. v. Vandiver, 238 Ky. 846, 38 S.W.2d 965; 39 A.L.R.2d 220, 240), this Court may be inclined to reconsider it when all property is required to be assessed at 100 percent of its value in accordance with our opinion in Russman v. Luckett, Ky., 391 S.W.2d 694.

However that may be, in the present case an officer of a corporation, which as cotrustee held title to the property, did file with the county tax commissioner a statement under oath giving the fair value of the property for tax purposes. The landowners make three contentions which are easily answered.

It is first said that a cotrustee having legal title is not a “landowner”. We are cited no principle or authority for such a proposition and do not believe it sound. In Fayette County Board of Supervisors v. O’Rear, Ky., 275 S.W.2d 577, we observed that under ordinary circumstances property should be listed by and assessed in the name of “the owner of the first freehold estate”. It is apparent that it was one of the duties of the trustees with the legal title to pay the taxes against this property. The trustees for this purpose must be recognized as the “landowners”.

It is next said that a corporate officer cannot fix an assessment value for his company because such officer is not the landowner. Appellants have ápparently overlooked KRS 136.020(1). Even in the absence of this statute, it is obvious that a corporation must act through its officers and agents. The case of Allen Co. v. Thoroughbred Motor Court, Ky., 272 S.W.2d 343, cited by appellants on this point, relates to an entirely different question.

It is finally said that the acts of the trustees could not be binding upon the beneficiaries of the trust because there is no “privity” between them. We can imagine no legal relationship where there is a closer privity. As a matter of fact, the purpose of the trust is to have the trustees act for the beneficiaries. Of course, no trust could exist if the trustees’ authorized acts were not binding on those they represent.

We find no reversible error.

The judgment is affirmed.


text:
    Virgel TURNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Virgel Turner, pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

On this appeal from an order denying appellant relief on his motion under RCr 11.-42, it is contended that appellant was entitled to an evidentiary hearing and that he was denied due process of law because he did not have counsel at a preliminary hearing in the Paducah police court.

Obviously an evidentiary hearing (with the appellant present) would serve no purpose when no material issue of fact was raised by appellant’s motion. See Oakes v. Gentry, Ky., 380 S.W.2d 237; Bell v. Gentry, Ky., 380 S.W.2d 259; Lawson v. Commonwealth, Ky., 386 S.W.2d 734.

The issue presented was one of law, and we have consistently held that where no prejudice is shown a person charged with a crime is not denied due process of law by failure to appoint counsel for him at a preliminary hearing. Carson v. Commonwealth, Ky., 382 S.W.2d 85; Yates v. Commonwealth, Ky., 386 S.W.2d 450; Commonwealth v. Watkins, Ky., 398 S.W.2d 698.

The judgment is affirmed.


text:
    Paul E. BYBEE, Appellant, v. Charles E. SINGER, t/d/b/a Shell Service Station, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Hugo Taustine, Edward M. Post, Jerome D. Berman, Taustine, Post & Berman, Louisville, for appellant.
    Louis M. Nicoulin, Louisville, for appel-lee.
   JAMES B. STEPHENSON, Special Commissioner.

On June 20, 1963, the appellant took an automobile to the appellee’s service station. Work was done on the automobile and as appellant was leaving he backed into a metal oil rack which was damaged along with some cans of oil. The appellee did not witness the accident. However, after the accident the appellant and appellee had a telephone conversation, during the course of which appellee demanded payment of $118.00 for the damages. Appellant proposed that the amount of damages be paid in installments. This proposal was rejected by appellee.

On July 11, 1963, appellee consulted an assistant county attorney for Jefferson County about obtaining a warrant against appellant and was advised that the facts presented constituted cause for a civil action but not one for which a warrant should be procured. On the same day a warrant was issued for appellant’s arrest based upon the complaint made on oath by appellee before a deputy court clerk charging appellant with willful destruction of property pursuant to KRS 432.240. On September 10, 1963, appellant was arrested on the warrant and was taken to the county police holdover in the courthouse, where he was detained behind bars. Later that day he was released on bail. The case eventually was dismissed.

Subsequently appellant filed this suit in the Jefferson Circuit Court alleging malicious prosecution. The trial court held, after hearing appellant’s evidence before a jury, that the appellant was guilty of violation of KRS 433.240 upon the facts submitted, and sustained appellee’s motion for a directed verdict.

KRS 433.240 provides: “Any person who, unlawfully but without felonious intent, takes, carries away, defaces or damages any property or thing of value not his own shall be fined not less than ten dollars nor more than two thousand dollars.” The facts set out above constitute at most simple negligence on the part of appellant. If simple negligence constitutes a violation of KRS 433.240, it would preclude recovery against the appellee for malicious prosecution. However, we believe that the trial court was in error in so construing the statute. We construe the words “unlawfully but without felonious intent” to apply to acts that are willful or wanton and reckless in their nature and not unintentional acts which proceed from a purpose that is not wrongful or from an evil heart. It is not reasonable to infer from this law that the legislature intended to punish by criminal action acts unintentional and accidental in their nature.

The judgment is reversed, with directions to grant plaintiff a new trial.


text:
    Daniel B. KIBBEY, Appellant, v. GENERAL AMERICAN TRANSPORTATION CORPORATION et al., Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Rinehart S. Shepherd, Greenup, Eldon L. Webb, Ashland, for appellant.
    G. B. Johnson, Jr., Dysard, Johnson & Welch, Ashland, for General American Transp. Corp., for appellee.
   CLAY, Commissioner.

In this workmen’s compensation case the appellant employee was awarded compensation for the total and permanent loss of the sight of an eye under KRS 342.105. The award was confirmed on appeal to the circuit court. Appellant contends he was entitled to total and permanent disability benefits under KRS 342.095.

On July 17, 1963, a welding arc flash burn seriously injured appellant’s right eye. He and his employer entered into an agreement, approved by the Board, which provided for maximum compensation payments for total temporary disability. The estimated time was 10 weeks. When appellant returned to work his employer discontinued compensation payments. Appellant then applied to the Board to reopen the case and the parties stipulated the only issue was the degree of permanent disability.

The expert witnesses testified in substance that appellant was industrially blind in his right eye. One doctor testified that his loss of vision should be considered 100 percent. There was evidence that appellee retained some vision in that eye.

Appellant’s contention is that if he could see anything out of the injured eye, the Board could not find “the total and permanent loss of the sight of an eye” under KRS 342.105(20). This claim is made because if this section of the statutes does not apply he would be entitled to a better award under KRS 342.095.

We do not see how the Board could have made any other finding under the evidence than that of total and permanent loss of the sight of an eye within the obvious purpose and intent of KRS 342.105(20). Industrial blindness, from a common sense standpoint and as recognized in our cases, constitutes “total” loss of vision for compensation purposes. See Burt v. Clay, 207 Ky. 278, 269 S.W. 322; Black Starr Coal Corp. v. Reeder, 278 Ky. 532, 128 S.W.2d 905; Shuman Co. v. May, Ky., 327 S.W.2d 14. Since the loss of sight was appellant’s degree of disability, KRS 342.105(20) governs the award.

Appellant contends that the agreed award somehow gave him a right to total and permanent disability, benefits under KRS 342.095, but of course that agreement became inoperative after the case was reopened and a new award made by the Board.

The judgment is affirmed.