author: WADDILL, Commissioner.

text:
    JAKE’S FORK COAL COMPANY et al., Petitioners, v. Honorable Courtney C. WELLS, Judge of the Perry Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.

      J. E. Johnson, III, James Park, Jr., Leslie W. Morris, II, Lexington, for petitioners.
    H. B. Noble, Hazard, for respondent.
   WADDILL, Commissioner.

By an original proceeding in this Court petitioners seek to prohibit respondent from presiding in the case of Jake’s Fork Coal Company et al. v. Leo Howell et al. in which an injunction is sought to prevent certain threatened acts of violence in a labor dispute. The instant proceeding was initiated following entry of an order by respondent overruling petitioners’ motion that respondent vacate the bench because of his bias and prejudice in the case.

This proceeding is predicated on the allegation that respondent is acting erroneously within his jurisdiction. Even if the allegation be true, this Court will not grant the requested relief unless it further appears that petitioners have no adequate remedy by appeal (or otherwise) and will suffer great and irreparable injury. Musgrave v. Hays, Ky., 354 S.W.2d 288.

The overruling by a circuit judge of a motion to require him to vacate the bench is an interlocutory order and ordinarily this Court will not review his action in an original proceeding in this Court since adequate review is provided by other and more conventional procedures. Smith v. Ward, 256 Ky. 13, 75 S.W.2d 538; Cross v. Wilson, Ky., 325 S.W.2d 309.

In the final analysis, a refusal to vacate the bench can never, in and of itself, create any injury or damage. The damage, if any, remains prospective, in that it must result from his further and subsequent conduct of the proceedings. Therefore, in determining whether the extraordinary remedy of prohibition is appropriate, it becomes necessary to consider the nature of the proceedings and the adequacy of the review procedures that are applicable to the further orders and judgments that may be entered by the judge who has refused to vacate. In injunction cases, such as the one now being presided over by the respondent, not only is the final judgment appealable, but also the rules provide reasonable procedure for interlocutory relief by this Court. Cf. CR 65.11.

Since the petitioners have failed to convince us that they have no adequate remedy by appeal (or otherwise) in the event of an adverse ruling or decision, we will not grant an order of prohibition.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    J. S. HENDERSON, Appellant, v. Virginia K. BAKER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    David C. Pottinger and F. Arnold Grever, Jr., Pottinger & Grever, Louisville, for appellant.
    David L. Gittleman, Louisville, for ap-pellee.
   CULLEN, Commissioner.

In a declaratory judgment action brought by a creditor of T. E. Davis, deceased, against Virginia K. Baker, individually and as administratrix of Davis’ estate, judgment was entered adjudging that Mrs. Baker individually was the owner of a certain parcel of real estate and that the creditor was not entitled to have the real estate restored to the decedent’s estate. The creditor has appealed.

Mrs. Baker was for many years married to Davis, but they were divorced in 1959. At the time of the divorce they held as joint tenants with right of survivorship a dwelling house which was mortgaged but in which there was an equity of around $6,000. 'The divorce judgment contained a standard clause, in accordance with KRS 403.060 and •403.065, adjudging that each party “shall restore to the other such property * * * as either may have obtained directly or indirectly from or through the other during marriage, in consideration or by reason thereof.” However the judgment did not specifically identify any item of property to he restored. No alimony was sought or granted. A few days after the divorce the wife married a Mr. Baker.

From the time of the divorce until his death in 1962 Mr. Davis lived in the dwelling house and continued to make the mortgage payments. Some time during this period Mrs. Baker executed a quitclaim deed conveying to Davis her interest in the property but the deed was never delivered. After the death of Davis, Mrs. Baker qualified as administratrix of his estate, but at the same time she asserted individual ownership of the property under the survivor-ship clause. The creditor then brought this action seeking a judgment declaring that the property belonged to the estate of Davis.

The circuit judge apparently was of the -opinion that any right Davis might have had to demand restoration of the real estate, under the statutes and the divorce judgment, was a personal right which after his death a creditor could not demand be exercised by the personal representative for the benefit of his estate. No question of laches or limitation was raised.

There is no question but that the parties to a divorce action may themselves ■obtain restoration in an independent action subsequent to the divorce. Mills v. Epper-son, Ky., 259 S.W.2d 687. We see no basis for holding that this is a personal right that dies with the party.

The proposition that the right to enforce restoration is not strictly a personal right is established by the line of cases cited in Ficke v. Prudential Ins. Co. of America, 305 Ky. 172, 202 S.W.2d 429, 175 A.L.R. 1215, holding that after the death of a divorced husband his personal representative can compel restoration to his estate of the proceeds of an insurance policy on his life in which the divorced wife was named as beneficiary. If the right to compel restoration were a personal one, the failure of the husband to change the beneficiary after the divorce would have been held to bar any right of his personal representative to the proceeds of the policy.

It is true that the Ficke case overruled the prior decisions as they related to situations in which the wife had paid the premiums on the policy, but the court clearly indicated that the former rule would continue to apply where the husband had paid the premiums.

In our opinion the right of Davis to compel restoration did not die with him, and his personal representative was under the duty to assert that right for his estate.

The trial court found (and the evidence fully supports the finding) that during the marriage Mrs. Davis (now Baker) had contributed $800 towards the investment in the real estate. She is entitled to a claim against the real estate only for that amount, regardless of any enhancement of the value of the property subsequent to the time of the making of her contribution. Kivett v. Kivett, Ky., 312 S.W.2d 884. The fact that she had some separate earnings during the marriage, some of which she used for general family expenses, and the fact that her domestic services helped the husband to accumulate funds from his earnings to invest in the real estate, do not give her any right in the property. Pearson v. Pearson, Ky., 350 S.W.2d 141; Johnson v. Johnson, Ky., 255 S.W.2d 610.

The record shows that after the death of Davis, Mrs. Baker personally made several mortgage payments. She is entitled to a lien against the property for the amount of those payments and for the original contribution of $800. Subject to this lien, the property should be restored to Davis’ estate.

The judgment is reversed with directions to enter judgment in conformity with this opinion.


author: MONTGOMERY, Judge.

text:
    Raymond BAYS et al., Appellants, v. James MAHAN et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    F. Byrd Hogg, Whitesburg, for appellants.
    . Harry M. Caudill, Whitesburg, for appel-lees.
   MONTGOMERY, Judge.

The sole question to be decided is whether an aged mother living in the home of her son and depending on him for her support is considered a part of his “immediate family” for the payment of burial benefits-•under a burial plan insurance contract. The trial court denied the benefits. Motion for an appeal has been sustained.

The appellees are the representatives of the Hendrix Burial Plan, an unincorporated .association formed in 1949 by the employees-of the Hendrix Mine in Letcher County-Raymond Bays and Isadore Brown, appellants, have been members of the Plan since 1950.

Kate White, Bays’ aged mother, had! •lived in his household and had been dependent solely on him for her food, clothing, and shelter from 1946 until her death on December 17, 1959. Louise Brown Barty, Brown’s aged mother, had lived with him under similar circumstances for two and one-half years prior to her death on August 2, 1960.

The bylaws of the association provided for payment of $750 for burial expenses and $15 for flowers for each of its members and each member of his “immediate family.” Appellees contend that such benefits are limited to the member, his wife, and children, natural and adopted.

The purpose of such association is to spread the burden of a death loss among the members so that the financial consequences will not be a hardship. The payment of the burial expenses of an aged mother under the circumstances is consistent with such purpose.

The term “immediate family” as used here has not been defined. Appellees argue that the Burial Plan agreement was drawn up without benefit of legal counsel and that the words used had an accepted meaning in the lay mind. Two common and fundamental rules of construction of contracts are that words shall be accorded their ordinarily used meaning unless the context' requires otherwise and a contract shall be construed more strongly against the party who prepared it. Citation of authority is unnecessary.

It is then argued that the preparers of the Plan intended to benefit the member, his wife, and children by the use of the phrase “immediate family.” It seems more ■reasonable to assume that they would have said “wife and children” and that by the convenient use of the phrase, “immediate family,” they intended to cover a group with varying degrees of relationship in order to avoid listing the various relationships covered. Further, it is argued in favor of the restricted definition that unless the payment of benefits is so limited the Association will become bankrupt. This is an economic argument without legal force.

The word “family” has a well-defined meaning under the homestead and exemption statutes. In Bell v. Keach, 80 Ky. 42, 3 Ky.Law Rep. 520 and 653, Chief Justice Lewis said:

“In legal contemplation, whomsoever it is the natural or moral duty of the debtor to support, or is dependent upon him for support, may be considered and treated as a member of his family. Accordingly, it has been consistently held that the infant brother or sister, or aged and helpless parent of the debtor, may constitute a family in the meaning of the law. * * * ”

In that case a woman who had been living with a man for twenty years without benefit of clergy and their minor child were held to constitute his family. The same definition had been given earlier. McMurray v. Shuck, 69 Ky. (6 Bush.) 111, 99 Am. Dec. 662; Brooks v. Collins, 74 Ky. (11 Bush.) 622. It is well established. Owens v. Altsheller & Co., 263 Ky. 727, 93 S.W.2d 844. In addition to the moral obligation, there is a legal duty of a child to support an indigent parent. KRS 405.080. Recently the phrase “immediate family” was defined as those members of the same household who are bound together by ties of relationship. Cincinnati, Newport & Covington Ry. Co. v. Peluso, Ky., 293 S.W.2d 556.

Considering these guides, there is little difficulty in arriving at the conclusion that an aged mother living with and dependent on her son for her support is a member of his “immediate family” as much as a wife or child. In fact, it would be hard to say that a child is a member of a parent’s immediate family and then say that a parent living with a child is not a member of the child’s immediate family. The Court is aware that decisions pro and con from other jurisdictions may be found, but it feels that common sense and the long-established definition of “family” dictate the conclusion reached.

Judgment reversed.


text:
    Estill CREECH et al., Appellants, v. Stanley Arnold ROBERTS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    J. W. Craft, Jr., Hazard, for appellants.
    Edward Jackson, Beattyville, H. B. Noble, Hazard, for appellee.
   WADDILL, Commissioner.

This appeal involves only matters of procedure in a case arising under the Workmen's Compensation Act. We are reversing the judgment because the circuit court erred in taking jurisdiction of the appeal.

Appellee, hereinafter referred to as claimant, filed an application with the Workmen’s Compensation Board seeking benefits under KRS 342.095. The basis of his claim was that he sustained an accident while working for appellant which has resulted in his being totally disabled.

The hearing of the claim was conducted by a referee of the Board. On December 1, 1959, following submission of the case, the referee prepared a written report, designated “opinion and order,” wherein it was observed that claimant had failed to prove that the parties were operating under the Workmen’s Compensation Act. We quote the last paragraph of the report:

“ORDER”
“Subject to appeal to the full board the opinion and order of the referee is adopted and approved as follows. It is hereby adjudged, decreed, and ordered that the plaintiff’s claim be dismissed subject to either a stipulation entered into between the parties or that the plaintiff be permitted to reopen his case for the purpose of proving jurisdiction.”

On December 7, 1959, claimant filed with the Board a motion to reopen the case for the purpose of receiving evidence showing the parties were subject to provisions of the Workmen’s Compensation Act. This motion was overruled by an order of the Board on February 17, 1960, on the ground that the case had been decided by the referee’s order (quoted above). Within twenty days thereafter the claimant took an appeal from that order to the circuit court which entered a judgment remanding the case to the Board with directions to hear additional evidence as to whether the parties were operating under the Workmen’s Compensation Act and to then determine the issues in the case. We consider the appeal from that judgment.

We have expressly held that the findings, awards, and orders made by referees do not become those of the Board until approved by a majority of its members. Kabai v. Majestic Collieries Co., 286 Ky. 279, 150 S.W.2d 898; Spencer v. Chavies Coal Co., 280 Ky. 152, 132 S.W.2d 746. The record in the instant case does not show that the report of the referee was approved by the Board.

Under these circumstances there has been no final determination of the case and hence there is no award or order that the circuit court could review under KRS 342.285. The circuit court should have followed the procedure approved in the Spencer case, supra, and dismissed the appeal.

The judgment is reversed, with directions to enter a judgment which dismisses the appeal.


author: HOUSER, Commissioner. WESTHUES, J., HOLLINGSWORTH, J.,

text:
    Cynthia Lynn LUCAS, by and through her friend and natural guardian, David Lucas, Appellant, v. Albert BLANKS, Respondent.
    No. 49225.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Thurman & Nixon and Jeremiah Nixon, Hillsboro, for appellant.
    Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for respondent.
   HOUSER, Commissioner.

Action for $60,000 damages for personal injuries sustained by three-year-old Cynthia Lucas, who was struck by defendant’s automobile in a street intersection in DeSoto. Submitted to a jury on humanitarian failure to slacken, stop, swerve or sound a warning, there was a verdict for defendant. Plaintiff, pro ami, appeals, charging error in the giving of defendant’s verdict-directing Instruction D-4 and burden of proof instruction D-5. Defendant defends the action of the court in giving the instructions, and further contends that plaintiff made no submissible case.

On the afternoon of September 11, 1959 defendant was driving his automobile north on Blow Street, approaching the intersection of Blow and Miller Streets. Blow runs north and south. Miller runs east and west. Blow is steeply downhill as a northbound driver approaches Miller. There is nothing to keep one from seeing 450 feet down the Blow Street hill. Miller is generally level on each side of Blow. Blow has a blacktop surface, and is about 25 feet wide. On each side of the blacktop there is a gravel shoulder and ditch. It is 36 feet from the east ditch to the west ditch. On the southeast corner of the intersection there is a store where candy is sold, around which children congregate. On the northwest corner of the intersection there is an unpaved area between the traveled portion of Blow and the fence which bounds the corner lot, which area is used for sidewalk purposes. At a point five feet south of the intersection a ditch had been cut across Blow Street. The ditch, which extended across the east half of the pavement, was barricaded. James Long was unloading merchandise from the rear of a panel delivery truck parked on the south side of Miller, east of Blow, headed east. Three or four children were standing in the unpaved area on the northwest corner of the intersection, 4 to 6 feet from the edge of the blacktop.

Those who testified to the facts surrounding the collision were defendant; his nephew Ralph Price, who was riding in the front seat of defendant’s automobile; James Long; and the three occupants of the Calvin Lambert automobile, which had been proceeding north on Blow about 200 feet behind defendant’s automobile.

Defendant testified that he was driving on his right-hand side at a speed of 10, 15 or 20 m. p. h. at a point some 60 feet south of the barricade. He slowed down to a speed of 5 m. p. h. for the barricade, and swung over to his left in order to get around it. At the time he pulled to the left he saw some children, “three or something like that,” standing on the sidewalk at the northwest corner of the intersection. That sidewalk is “a good four or five feet” from the edge of the blacktop of Blow Street. As his car first entered the intersection the children were in the same position. He entered the intersection at 5 m. p. h. Defendant did not see the child “run out” from the sidewalk as defendant entered the intersection. He saw her on the sidewalk, “and when [he] got around [the barricade] she hit [his] car, she run into [his car.]” Defendant testified, “I seen her on the sidewalk and when I looked, she’d run across I guess, that’s all I know.” He thought “maybe” the child had to move a matter of 25 or 30 feet to get from the sidewalk to the edge of his car. She “was so quick” he “thought she was still standing there,” but as he passed through the intersection the child came in contact with the left front fender of defendant’s automobile. In his deposition defendant admitted that prior to the accident somebody hollered “Watch it, don’t hit that girl,” or “Watch out for the little girl in front of you.” Defendant was going 5 m. p. h. at the time of the collision with plaintiff. The child was “not as tall as the fender.” Defendant testified: “[I]n my driving sight, I couldn’t see her, * * * I couldn’t see whether she was on the left side when she run into it or not, I couldn’t see her, she’s too small.” His windshield was clear. Defendant heard a thump, and he applied the brakes, bringing the automobile to a stop in 6 to 8 feet. The brakes were good. His car went about 2 feet after he “hit the brakes.” After he stopped plaintiff was lying beside the left wheel near the side of the fender.

When defendant’s automobile was 50 feet back from the intersection, Ralph Price noticed three or four children “approaching the intersection,” moving south on the sidewalk on the west side or west edge of Blow Street. As the defendant’s automobile reached and entered the intersection it was straddling the center line of Blow Street, getting back onto the right hand or east side. When the front end of defendant’s automobile reached the south edge of Miller Street, the children “were still on the west edge, or west side of Blow Street * * * in the area of the sidewalk * * * the sidewalk ends there * * * they were at the intersection of Blow and Miller.” Defendant’s car was then traveling not more than 5-10 m. p. h. Price paid no attention to the children after seeing them on the west side of Blow. He did not see plaintiff dart or move into the street. When the front bumper had gotten not more than S to 6 yards out into the intersection he heard a noise or thump. At the time of the occurrence of the impact defendant was heading back to his lane. Defendant was just beginning to accelerate and was going not more than 5-10 m. p. h. Defendant stopped immediately, and Price found the child lying on the street not more than a foot or two back from the extreme front end of the car, to the left of the left front fender. After the accident he examined a rubbed mark on the left front fender six or seven inches back from the light.

James Long, who was unloading his truck 25 feet from the place where the collision occurred, heard someone yell “Look out,” and looked “toward the yell.” At the time he heard the words “look out” the accident had not happened. He saw the automobile hit the child, who was standing in the street, not moving, facing the automobile, at a 45-degree angle. He said she was hit by the right front fender and front portion of the automobile and thrown 15 feet down the hill in front of the automobile.

Calvin Lambert, driving his car behind defendant’s automobile, noticed defendant’s brake lights go on just as defendant’s automobile entered the intersection. He heard somebody yell at a time “fairly close” to the time the brake lights went on. From the driver’s seat he could see to the left of defendant’s automobile but he did not see any children come out into the street from the left side of the street or to the left of defendant’s car, and did not see any children standing on the left side, or any child run into the side of defendant’s automobile. When asked where this child came from he answered “She must have been already in the street, in front of the car or otherwise I’d of seen her,” but admitted he “hardly ever” looked that far ahead, and that he was not watching that far ahead at that time.

Lambert’s wife and daughter failed to see any children at any time. The daughter was sitting on the right side of the car. She saw no child come out from the right side of the road.

A police officer found fingerprints on the left side of the left front fender, 12-18 inches back from the headlight, after the accident.

Instruction D-4 follows: “The court instructs the Jury that if you believe and find from the evidence in this case that on the occasion in question the Defendant, Albert Blanks was operating his automobile North-wardly over and along Blow Street in the City of DeSoto, Missouri, at and near its intersection with Miller Street, and that as he approached the intersection there was an obstruction in his right hand side of Blow Street which required him to drive to his left in order to pass the said obstruction and proceed Northwardly along said street, and if you find that as the said Albert Blanks approached and entered the intersection of Blow Street with Miller Street the Plaintiff, Cynthia Lucas, was not on the traveled portion of Blow Street, but was off of the traveled portion of Blow Street on the West side thereof and in a position of safety, if you so find, and if you find that as the said Albert Blanks entered the intersection of Blow Street with Miller Street that the said Cynthia Lucas proceeded into the intersection of Miller and Blow Streets and came into a position of imminent peril, and that Albert Blanks’ automobile was then so close that it was impossible for the Defendant to prevent his automobile striking Plaintiff, then you are instructed that you must return your verdict in favor of the defendant and against the Plaintiff.” (Italics ours.)

Plaintiff first says the italicized words precluded the jury from finding that plaintiff came into a position of imminent peril prior to the time she was actually into the intersection, thereby narrowing and limiting the zone of imminent peril; that in the case of a three-year-old child the zone of peril could well have begun the moment she stepped off the sidewalk, or at some other point before she actually proceeded into the intersection; that the italicized matter further erroneously stated as a matter of law that the zone of imminent peril began in the intersection, whereas the place where the zone of imminent peril commences is a question for the jury. Plaintiff cites Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566; Ozbun v. Vance, Mo.Sup., 323 S.W.2d 771; Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, and other cases for the undeniable proposition that a verdict-directing instruction should not narrow and restrict the zone of imminent peril, but we find no fault with D-4 on this ground. Obviously, plaintiff was in no position of peril if she was in a “position of safety” on the west side of Blow Street, standing still at a point out of the line of travel of defendant’s automobile. D-4 submits a situation wherein plaintiff, in such position of safety on the west side but off the traveled portion of Blow Street, proceeded into the intersection and came into a position of imminent peril as defendant’s automobile entered the intersection. Plaintiff’s trouble lies in the mistaken construction of the word “intersection” as used in D-4. Plaintiff construes the words “Cynthia Lucas proceeded into the intersection” inevitably and exclusively to mean “Cynthia Lucas proceeded to the portion of the intersection ordinarily traveled by vehicles.” “Intersection” as used in D-4 has a wider and broader meaning, under the evidence. It refers not only to that area of the intersection ordinarily traveled by vehicles but also to the entire area of the rectangle made by the intersection of the north and south lines of Miller Street and the east and west lines of Blow Street, including the area between the sidewalk and the blacktop. D-4 does not confine the commencement of the zone of peril to the time plaintiff proceeded into the traveled portion of Blow Street. D-4 differentiates between “the intersection of Blow Street with Miller Street” and “the traveled portion of Blow Street,” thus recognizing what the evidence discloses, i. e., that the intersection is wider than the blacktop. Nor do the words “Cynthia Lucas proceeded into the intersection” necessarily refer only to her entry into the intersection. There was evidence from which the jury could find that she had already “entered” the intersection at the time she was standing in the group of children “on” the west side or west edge of Blow Street, “at the intersection,” in the “area of the sidewalk,” where the sidewalk ends. The quoted words could and doubtless should have been taken to refer to her movement as she passed across and advanced through the intersection. The jury was free to find — was not precluded by the wording of the instruction from finding — that the danger zone commenced, that plaintiff was in a position of imminent peril, at any time after she left her position of safety and started in the direction of the line of travel of the automobile; at any time after she began to move across, go forward over, or advance through, the intersection; at any time before she reached the blacktop, or traveled portion. It might have included her first step. Defendant was entitled to have any facts in evidence constituting a defense submitted to the jury. D-4 is not subject to the criticism that it narrowed and limited the danger zone. Martin v. Effrein, supra; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466, 469 [2-4],

Plaintiff next objects to D-4 on the ground that it does not indicate the degree of care required of defendant; does not contain all of the elements necessary to exonerate defendant, and lacks the requirement of a finding that defendant exercised the highest degree of care and was not negligent. D — 4 is a converse of one of the essential elements submitted in plaintiff’s main verdict-directing Instruction P-1 under the humanitarian doctrine, namely, the ability of defendant to have avoided striking plaintiff after she came into a position of imminent peril.

Its failure to require of defendant the exercise of the highest degree of care is not a valid objection. A converse instruction without such a requirement is more favorable to plaintiff than if defendant’s duty was thus limited. D-4 only authorizes a verdict for defendant if it was impossible, for any reason and upon any hypothesis, for defendant to have prevented his automobile from striking plaintiff1. Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264, 268 [3], and case cited; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919, 920.

Its failure to detail all of the elements necessary to exonerate defendant, including the requirement of a finding of non-negligence, is not a valid objection. In a humanitarian case a defendant is always entitled to an instruction submitting as his defense facts shown by the evidence tending to disprove any one of the basic facts upon which the doctrine rests. Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562, 568. D-4 sufficiently hypothesized the facts bearing upon defendant’s ability to avoid striking plaintiff. It was not necessary for D-4 to cover plaintiff’s entire humanitarian submission and negative or converse each and every one of the several essential elements thereof.

Plaintiff objects to the use of the word “impossible” in D-4, claiming that the instruction failed to indicate “in what manner it was impossible, or what degree of care was required to determine the impossibility” and therefore gave the jury a roving instruction to bring back a verdict based on the lack of any degree of care. This contention is without merit for the same reason referred to in Rosenfeld and Burow, supra, namely, that the use of the word “impossible” instead of the expression “by the exercise of the highest degree of care” imposed on defendant a duty greater than that required by law and was more favorable to plaintiff than the wording for which she contends. Furthermore, Instruction P-3 told the jury that “It is the duty of the driver of every automobile upon the highways of this state to exercise the highest degree of care,” and defined highest degree of care and negligence, so the jury was fully informed as to the degree of care required of defendant.

Finally, plaintiff attacks Instruction D-5, which follows: “The Court instructs the jury that the mere fact alone and of itself that the Plaintiff claims she was injured and had brought suit against the Defendant does not entitle Plaintiff to recover from the Defendant, but the Plaintiff can recover only if she proves that she was injured and that such injuries were caused by negligence of the Defendant as submitted to you in other instructions.

“The burden is not upon the Defendant to disprove such facts, but rather the law casts the burden upon the Plaintiff to make such proof by a greater weight or preponderance of the credible evidence in the case.

“Unless the Plaintiff has made such proof, it is your duty to, and you must, return the verdict in favor of the Defendant.
“By the term ‘greater weight or preponderance of the evidence’ is meant evidence which is more convincing as worthy of belief than other evidence in the case.”

The first paragraph of D-5 contains a “mere fact” admonition, but plaintiff does not attack D-5 on that ground. (Although mere fact instructions are out of favor with this Court, it would be difficult to draw a more innocent and innocuous mere fact instruction.) Plaintiff’s complaint is that this “burden of proof instruction” is complicated, misleading, contains several issues, and is “beyond the defendant’s pleadings and beyond the evidence.” We have examined Phillips v. Vrooman, 361 Mo. 1098, 238 S.W.2d 355, 360; Mitchell v. Dyer, Mo.Sup., 57 S.W.2d 1082; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58, and Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, cited by plaintiff. These decisions call for simplicity in burden of proof instructions, which is commendable, but a critical examination of D-5 does not lead to the conclusion that it is complicated. Nor is it misleading. On the contrary it is singularly simple, direct and informative. Its “mere fact” provision, of which plaintiff makes no complaint as such, is coupled with an approved, concise instruction on the burden of proof, and an approved, concise definition of preponderance of the evidence. Plaintiff fails to support the assertion that D-S goes beyond defendant’s pleadings and beyond the evidence, and we are not sufficiently resourceful to find any such flaw in it.

Since plaintiff has not demonstrated reversible error in the instructions we need not consider defendant’s alternative point that plaintiff did not make a submissible case of humanitarian negligence.

The judgment is affirmed.

HOLMAN, C., concurs.

COIL, C., concurs in result.

DALTON, P. J., and HYDE, J., concur.

WESTHUES, J.,

concurs in result and adopts the memorandum of COIL, C., as a separate concurring opinion.

HOLLINGSWORTH, J.,

concurs in result and concurs in separate opinion of WESTHUES, J.

For concurring opinion see 362 S.W.2d 744.


author: HOLMAN, Commissioner. PER CURIAM.

text:
    David JOLLEY, a Minor, by his next friend, Georgia Jolley, Appellant, v. Shelvy LOWE, Respondent.
    No. 49278.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellant.
    Ralph L. Markus, Clayton, for respondent.
   HOLMAN, Commissioner.

In this action plaintiff sought to recover damages in the sum of $25,000 for personal injuries sustained when he was struck by a car driven by defendant. A trial resulted in a verdict for defendant. Plaintiff has appealed and here contends that the trial court erred in giving and refusing certain instructions and in failing to grant him a new trial because of the misconduct of a juror in concealing certain facts upon voir dire examination. Defendant-respondent has not filed a brief in this court.

There is very little dispute about the facts and a brief statement thereof will suffice for the purposes of this appeal. Defendant, a resident of Chicago, was in St. Louis for the purpose of attending a funeral. On the occasion in question he was driving an automobile belonging to his cousin. He had driven a number of his relatives to a floral shop and at the time of the occurrence in question they were returning to the funeral home. The casualty occurred at about 3:45 p. m. on March 22, 1960, on Garrison Avenue, a north-south street in St. Louis, Missouri. Plaintiff, a 12-year-old school boy, sustained injuries to his left leg when it was run over by the right front wheel of the car defendant was driving. The point of contact was in the right half of Garrison, 33 feet north of the point where that street intersects with Magazine Avenue. Defendant’s car was being driven southwardly at a speed of 10 miles per hour. There were cars parked on the west side of Garrison with the front end of the car nearest to Magazine being 26 feet north of the north curb of Magazine. The day was clear and the streets were dry.

Just prior to the casualty plaintiff and a number of other school children alighted from a bus which had stopped at the northwest corner of the intersection. Plaintiff was running from the time he left the bus and was being chased by one or more other children. He started north on the sidewalk on the west side of Garrison and when he reached a point near the front of the first parked car he abruptly turned east and ran in front of the parked car apparently intending to run across the street. When he saw that he was about to collide with the car defendant was driving he tried to either stop or to slow down and turn to the north so that he could run between the parked car and defendant’s car, but he lost his footing and slid forward, feet first, in such a manner that his left leg was run over by the right front wheel of defendant’s car.

Plaintiff testified that he had no recollection as to how the accident occurred. However, the patrolman who investigated the occurrence testified that he interviewed plaintiff at the hospital and plaintiff stated that he was running at the time because another boy was throwing rocks at him.

Defendant testified that he saw plaintiff “run off of the bus” and that he continued to watch him until the casualty occurred; that he did not swerve or sound his horn, and did not apply the brakes until plaintiff “hit the car”; that he stopped his car in six inches after he applied the brakes; that the distance between his car and the parked car was four feet. To a large extent the defendant’s version of the manner in which the accident occurred and the speed of the vehicle was corroborated by William Carter, a route salesman for the Coca Cola Company, who was in the cab of a truck, the third vehicle in the line of traffic back of defendant’s car. This witness testified that defendant stopped his car “instantly” after plaintiff slid into the car.

Plaintiff’s case was submitted by Instruction No. 3 upon humanitarian negligence and required a finding that “plaintiff became and was in a position of imminent peril and danger of being struck and collided with by defendant’s automobile and that plaintiff was oblivious to the approach of defendant’s automobile and if you further find that the defendant saw or by the exercise of the highest degree of care could have seen plaintiff in said position of peril, if any, in time thereafter, by the exercise of the highest degree of care and with the means and appliances at hand, defendant could have sounded a warning or stopped his automobile and thereby have avoided colliding with plaintiff, if you so find, and if you further find that defendant did fail to sound a warning or stop his automobile and was negligent * *

We will first consider plaintiff’s contention that the court erred in giving, at the request of defendant, Instruction No. 4 which reads as follows: “The court instructs the jury that if you find under Instruction No. 3 that the plaintiff was oblivious to the defendant and had entered a zone of peril, and if you further find and believe that the defendant was unable, in time thereafter to sound a warning or stop his automobile, and that in so doing he was not negligent, then your verdict should be for the defendant and against the plaintiff.”

We have concluded that the instruction is erroneous for the reason that it is indefinite, incomplete, confusing and misleading. First, we note that there is no requirement in the instruction concerning the standard of care applicable to defendant. It should have contained a finding that defendant, in the exercise of the highest degree of care, was unable to sound a warning or stop the automobile in time to have avoided colliding with plaintiff. The phrase “highest degree of care” has been defined as that degree of care that a very careful and prudent person would ordinarily exercise under the same or similar circumstances. Martin v. Turner, Mo.Sup., 306 S.W.2d 473. The instruction, in the form in which it was given, permitted the jury to return a verdict for the defendant upon a finding that he was unable to take the timely action specified in order to avoid the casualty, irrespective of whether he was, at the time, exercising the highest degree of care in the operation of his automobile. See Bullock v. Sklar, Mo.App., 349 S.W.2d 381[10], The requirement for a finding “that in so doing he was not negligent” (even if “in so doing” is construed to mean “in failing so to do”) could not have cured the error resulting from the omission. This, for the reason that “negligent” or “negligence” is not defined in any of the instructions and therefore it could not reasonably be contended that a finding that defendant was not negligent in being unable to take timely action was the equivalent of a finding that he was, at that time, exercising the highest degree of care. We do not mean to hold that if “negligence” had been defined in the instruction such necessarily would have cured the error.

We recognize that in Rosenfeld v. Peters, Mo.Sup., 327 S.W.2d 264, and Burow v. Red Line Service, Inc., 343 Mo. 605, 122 S.W.2d 919, partially similar instructions which omitted a reference to the standard of care were held to be more favorable to plaintiff than he was entitled to because those instructions were said to authorize a verdict for defendant only if it were impossible, upon any hypothesis, for the driver to have taken action to avoid the collision. However, in the case before us, we think the instruction is erroneous because, with the standard of care omitted, it is based upon and emphasizes the finding as to what defendant, as an individual, was able to do, while the conduct exacted by the law is an objective standard which should be the same for all under the same circumstances — in this case, the care that a very careful and prudent person would ordinarily exercise. See Harris v. Rowden, Mo.Sup., 305 S.W.2d 25.

Secondly, the instruction is indefinite and confusing because it fails to specify the desired result of the action defendant was unable to take. It requires a finding “that the defendant was unable, in time thereafter to sound a warning or stop his automobile, and that in so doing he was not negligent.” In order to be complete and understandable there should have been inserted after the word “automobile” the phrase “and thereby have avoided colliding with plaintiff,” or some similar expression. Also, the last phrase in the quoted portion of the instruction is confusing in that it contains the words “so doing” when it should have used instead an expression such as “failing so to do.” While the jury might understand that this was an inadvertent error, there is nevertheless a reasonable possibility that it would be confused by the fact that the words used implied that defendant had taken some affirmative action, when the instruction is based upon the theory that he was unable to take any timely action

For the reasons indicated, we rule that the giving- of Instruction No. 4 constituted reversible error. In that connection we perhaps should state that we have noticed that said instruction failed to contain any requirement of knowledge on the part of defendant concerning the fact that plaintiff was in a position of imminent peril, hut we have not mentioned that omission as a ground for reversal because that error would appear to be favorable to plaintiff.

Since the judgment must be reversed and the cause remanded for a new trial because of the error in giving Instruction No. 4, we do not consider it necessary or advisable to discuss the other points briefed by plaintiff. Certainly, no purpose would be served by discussing the alleged trial error in regard to the juror. Plaintiff has briefed the contention that the court erred in giving Instruction No. 1 at defendant’s request. Before another trial counsel for defendant will have an opportunity to re-examine that instruction and to make such corrections therein as may be considered advisable in view of the attack here made thereon. Plaintiff has also contended that the court erred in refusing two instructions offered by him which would have submitted his case upon assignments of primary negligence. We have no information as to whether the trial court refused those instructions because of errors in the form thereof, or because it was of the opinion that plaintiff was guilty of contributory negligence as a matter of law. Since the case is not briefed by respondent there is nothing before us attacking the form of these instructions or otherwise defending the-action of the court in refusing them. In the situation presented we are of the view that it would not be advisable for us to originate an investigation concerning these instructions and to discuss the reasons that might occur to us as to why either or both should or should not be given if offered by plaintiff at another trial.

Reversed and remanded.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

WESTHUES, HYDE, and DALTON, JJ., concur.

HOLLINGSWORTH, J., concurs in result.

For concurring opinion see 362 S.W.2d 744.


author: WESTHUES, Judge. PER CURIAM.

text:
    David JOLLEY, a Minor, by his Next Friend, Georgia Jolley, Appellant, v. Shelvy LOWE, Respondent. Cynthia Lynn LUCAS, by and through her friend and natural guardian, David Lucas, Appellant, v. Albert BLANKS, Respondent.
    Nos. 49278, 49225.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    For majority opinions see 362 S.W.2d 741; 362 S.W.2d 736.
   WESTHUES, Judge.

Deeming it necessary to explain my concurrence in the result in 362 S.W.2d 736, I am adopting in toto a memorandum prepared by Commissioner COIL. Said memorandum includes 362 S.W.2d 741, which was written by Commissioner HOLMAN. The memorandum reads as follows:

Because of the fact that Judges HOLMAN and HOUSER are circulating opinions which deal with the same type of instruction, and because I believe that the point involved needs clarification, and because I also believe that the two opinions, particularly appearing simultaneously, will greatly add to the confusion, I take the liberty of dealing with both the above-mentioned opinions in this one memorandum.

In Jolley v. Lowe, the defendant’s humanitarian instruction (opinion p. 743 of 362 S.W.2d) directed that if the jury found that plaintiff was in a zone of peril “and if you further find and believe that the defendant was unable, in time thereafter to sound a warning or stop his automobile, and that in so doing [failing] he was not negligent, then your verdict should he for the defendant and against the plaintiff.”

Judge HOLMAN held that instruction erroneous for several reasons, among them that it failed to state any standard of care applicable to defendant but permitted the jury to determine whether the defendant as an individual, irrespective of any applicable standard, was unable to have avoided the collision. I agree that the instruction was erroneous for that reason, as well as the others assigned, and certainly that the error was not cured by the inclusion of the requirement that the jury find that “in so doing [failing] [defendant] was not negligent,” because no instruction in the case defined “negligence,” and thus no instruction directed that the standard by which the jury was to judge whether the defendant was able to avoid the collision was, if he was at that time exercising that degree of care which a very careful and prudent person would ordinarily exercise under the same or similar circumstances.

So far, I am in full agreement with Judge HOLMAN’S opinion. The opinion proceeds, however, in the first full paragraph on page 743 of 362 S.W.2d to attempt to distinguish the cases of Rosenfeld v. Peters, Mo., 327 S.W.2d 264, 267, and Burow v. Red Line Service, Inc., 343 Mo. 605, 122 S.W.2d 919, on the ground that under those instructions the jury could find for the defendant only if it were “impossible” upon any hypothesis for the driver to have taken action to have avoided the collision. But, says Judge HOLMAN, the instruction in the present case emphasized what the defendant as an individual was able or unable to do and did not contain the word “impossible” and therefore the instruction in this case was erroneous, despite the Rosenfeld and Burow cases. I do not agree with the distinction attempted or made. In the first place, neither in the Rosenfeld nor the Burow case was the word “impossible” used in the instruction. As a matter of fact the Rosenfeld instruction was almost exactly like (in its pertinent part) the one Judge HOLMAN holds erroneous but says is distinguishable — the Rosenfeld instruction said “that Mr. Peters [the defendant] was not able to avoid”— the present instruction said “that the defendant was unable” to avoid. But even instructions which do use the word “impossible” are no different unless the word “impossible” or the word “unable” or any other word used, refers and relates to the vehicle rather than to the defendant as an individual. If an instruction said, for example, “and if you find that after plaintiff came into a position of peril it was impossible for defendant’s automobile to have been stopped,” or as the instruction in the Burow case said (122 S.W.2d 920): “said motorbus was so close to the automobile, * * * that the speed of said motorbus could not be * * * stopped in time to avoid a collision,” then I could understand that it might be reasonable to say that such an instruction authorized a verdict for defendant only if it was impossible for any reason and upon any hypothesis for the defendant or anyone else to have prevented his automobile from striking plaintiff. But an instruction which hypothesizes that it was impossible for the defendant (the particular individual) to have avoided the collision after plaintiff was in imminent peril is subject to the indictment that it fails to state the applicable standard of care. And unless that applicable standard of care which, of course, is an objective standard and applies to all, is supplied by some other instruction, it seems to me that its omission must be reversibly erroneous.

Stated another way, it is no different so far as the application of the principle involved is concerned to say that “if you find that after plaintiff came into a position of imminent peril it was impossible for defendant to have avoided the collision” than to say “if you find that after plaintiff came into a position of imminent peril defendant was unable to avoid the collision.” In both expressions, avoidance is made dependent upon the ability under particular circumstances of a particular individual unrelated to the standard by which the acts of that individual are to be judged, i. e., by what a very careful and prudent person would ordinarily be capable of under the same or similar circumstances.

In Lucas v. Blanks, Judge HOUSER holds an instruction, similar to the one in Judge HOLMAN’S case, good as against the contention that it did not indicate the degree of care required of defendant. The instruction (opinion p. 738 of 362 S.W.2d) in pertinent part directed the jury that if when plaintiff came into a position of imminent peril “Albert Blanks’ automobile was then so close that it was impossible for the Defendant to prevent his automobile striking Plaintiff, then you are instructed that you must return your verdict in favor of the defendant and against the Plaintiff.”

For the reasons I have stated above, I believe that that language, standing alone, makes the instruction reversibly erroneous for failure to have included the applicable standard of care. I repeat that the instruction said, “it was impossible for the Defendant,” i. e., the individual defendant in that case — it did not say or imply that the defendant in the exercise of that degree of care which a very careful and prudent person ordinarily would exercise under the same or similar circumstances, could not avoid, etc. The opinion holds the instruction good under the rule of the Rosenfeld and Burow cases because, says the opinion, it is “more favorable to plaintiff than if defendant’s duty was thus limited. D-4 only authorizes a verdict for defendant if it was impossible, for any reason and upon any hypothesis, for defendant to have prevented his automobile from striking plaintiff.” I respectfully submit that that is not an accurate statement. The instruction does not authorize a verdict for plaintiff upon any hypothesis. The hypothesis, authorizing a verdict for defendant if it was impossible for that defendant to have prevented his automobile from striking plaintiff, has nothing to do with the omission of the standard of care —it is a different element — it is a wholly different direction than that which would authorize a verdict for defendant if defendant, in the exercise of the highest degree of care, could not have prevented his automobile from striking plaintiff.

Later, in answer to another objection to the same instruction but not in connection with this point at all, Judge HOUSER (opinion p. 740 of 362 S.W.2d, para. 1) points out that another instruction in the case told the jury that it was the duty of every driver of an automobile to exercise the highest degree of care and defined that degree of care. I have concurred in result, therefore, because I believe that the other instruction so informing the jury of the applicable standard of care, when read with the instruction permitting a defendant’s verdict if it was impossible for the defendant to have prevented his automobile striking plaintiff, etc., sufficiently supplied the missing requirement as to the applicable standard of care. Consequently, my concurrence in result.

PER CURIAM.

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


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Henri VELGHE and Irma Velghe, Respondents, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Appellant.
    No. 23470.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for appellant.
    Harvey Burrus, Independence, for respondents.
   MAUGHMER, Commissioner.

The Director, State Department of Public Health and Welfare, removed respondents from the Old Age Assistance rolls after finding they had sold real estate in which they owned a one-half interest without receiving any money or property in exchange. On appeal the circuit court held that the Director’s finding was arbitrary and unreasonable because not supported by substantial evidence. The Department appealed from that judgment.

The transcript of the hearing before the referee constitutes the complete record in this case. The Director’s findings and decision are based upon the evidence there presented, and unless therein supported by substantial evidence, such decision may not stand. Likewise, the circuit court and this court must assemble and determine the facts solely from the transcript of the hearing before the referee. As concisely as we are able, we shall summarize those facts.

Four witnesses — respondents, their daughter Mary Averill Gordon and Helen Jasper, caseworker, welfare office at Independence, Missouri — testified at the referee hearing, which was held on March 16, 1960. Some facts are neither disputed nor questioned. In 1947, respondents, who had been living by themselves in their residence on East 10th Street, Independence, Missouri, sold that property for $4,000 and “moved in” with their daughter Mary Averill, her husband John Averill and their child. The Averill property was located at 2348 Vermont in Independence. Title at the time was in the names of Mary and John Averill, husband and wife.

In 1948, respondents made inquiry at the welfare office regarding old age assistance. Helen Jasper, caseworker, said it appeared respondents had a bank ascount of $1400 and, therefore, were ineligible. In 1951, respondents filed their formal application for benefits. Again, according to Helen Jasper, it was denied “because they were living with the daughter and the daughter was employed”. In February, 1954, their application was approved and benefits were paid continuously thereafter until February 19, 1960, the effective date of the Director’s order in the present controversy.

During the year 1951, respondents’ daughter Mary Averill and her husband John Averill had marital difficulties which culminated during that year in a divorce. According to the testimony of Mary Averill, pursuant to advice from her attorney, title to the 2348 Vermont property (in 1951 and after the divorce) was placed in “Mary V. Averill, single and unmarried, and Henri Velghe and Irma Velghe, husband and wife, as joint tenants with right of survivorship and not as tenants in common”. This change in title as it was actually carried out apparently involved three deeds: (1) John and Mary Averill deeded to Katherine A. Andrews, a single person, secretary in the lawyer’s office and straw party; (2) Katherine A. Andrews to Mary and the Velghes; (3) a quit-claim deed from John Averill to Mary and to her parents was also referred to in the testimony. Mary stated that her parents were included in the title and vested with survivorship rights in order that, if Mary should die, her divorced husband, as guardian of their minor child, would be unable to take control of the property.

Shortly thereafter the Vermont Street property was sold. Respondents with Mary, signed the conveyance deed, but Mary received the proceeds. However, she immediately purchased for $9500 a residence property at 3819 Agnes Street in Independence and again the title was taken in all three names and with right of survivorship. Respondents, Mary and Mary’s child occupied this property until 1953, when Mary married a Mr. Gordon and moved to Alaska. Respondents continued to occupy the premises until September, 1959, paying $35, and a part of the time $37 per month as rent. In September, 1959, Mary sold the property and received $7,950 therefor over and above the mortgage. Again respondents signed the conveyance deed and again all agree Mary received and retained all the proceeds.

Respondents and Mary each testified that the $4,000 respondents received from the 10th Street property in 1947, was used up in living expenses, and that respondents paid nothing whatever for either the Vermont or the Agnes Street residences; that they were made partial holders of record title upon the advice of Mary’s divorce attorney and to keep her divorced husband from securing control of it in the event of Mary’s death.

None of the deeds mentioned herein were produced or received in evidence, but were described rather fully by the witness Mary Averill Gordon and it is apparent from some of the referee’s questions that the welfare office had done some investigation as to the deeds. On the date of the hearing— March 16, 1960 — respondents Henri and Irma Velghe were 74 and 76 years old, respectively.

Upon this evidence the Director entered these findings of fact:

“Henri Velghe, 74, and his wife, Irma, 76, live together in rented property at 110 East College, Independence, Jackson County, Missouri. In September, 1951, they purchased property at 3819 Agnes Street with the title in their names together with their daughter, Mary V. Averill. This property was sold in September, 1959, and after deducting the mortgage their daughter received $7,950.00. Claimants did not receive any of this money. It is found they had a one-half interest in this property which was transferred in September, 1959, by them and their daughter for a net amount of $7,950.00 without them receiving any money or other property in exchange. The average monthly grant in Old Age Assistance paid a married couple in September, 1959, was $117.82 per month”.

It was further the Director’s decision that respondents be dropped from the rolls and be declared ineligible for public assistance for 38 months from and after October 1, 1959. The Director based his order upon the provisions of Section 208.010, V.A. M.S., 1959.

“2. Benefits shall not be payable to any claimant who:
“(1) (a) Has made, or whose spouse with whom he is living has made, an assignment, conveyance or transfer of real or personal property or any interest therein of any value within five years preceding the date of the investigation without receiving fair and valuable consideration for said property.”

Under Section 208.100(5), V.A.M. S., 1959, which provides procedure on appeal to the circuit court, that court is authorized to remand for redetermination if in its judgment the Director’s “decision was arbitrary and unreasonable”. Upon appeal or review the circuit court is also required to determine whether or not a fair hearing has been granted the applicant.

The scope of judicial review as to the findings of the Director is set forth by the Supreme Court en Banc, in Collins v. Division of Welfare of the State of Missouri, 364 Mo. 1032, 270 S.W.2d 817, 819, which we quote:

“If the findings and order of the Director are supported by substantial evidence in the record before us, we may not disturb the judgment appealed from and must affirm it. But if- the Director’s findings are contrary to the determinative undisputed facts, and are therefore arbitrary and unreasonable we must so find, and reverse the judgment. (cases cited)”.

In the same case, 270 S.W.2d at page 820, the court said:

“ ‘Substantial evidence’ is evidence which, if true, has probative force upon the issues, i. e., evidence favoring facts which are such that reasonable men may differ as to whether it establishes them”.

The Department, as appellant on appeal, makes two assignments of error. It says under Assignment B, that the circuit court received additional evidence at the appeal hearing, and this was error. The court did receive an affidavit by respondents’ counsel. The reception of any additional evidence was improper and we shall not consider the same on our review. Assignment A asserts there was substantial evidence to support the Director’s decision and, therefore, the circuit court judgment that it was arbitrary and unreasonable and was not supported by substantial evidence is erroneous.

In Choate v. State Department of Public Health & Welfare, Mo.App., 296 S.W.2d 189-195-196, we find the same type of case. Claimant was removed from the rolls by the Director, the circuit court remanded, and on appeal the court of appeals affirmed the Director’s decision. In the Choate case claimant alone purchased the property in 1925; in 1932, she conveyed to her son’s wife, subject to two deeds of trust; the children reconveyed to claimant, who paid the indebtedness and then deeded to her son. In 1948, 1950, 1951 and 1954, she signed property statements listing the property as belonging to her. These facts amount to substantial evidence that she owned the property and when she conveyed for ncc consideration, justified the Director’s decision to drop her from the rolls.

The evidence in our case is quite different. Claimants sold the only property which they owned in their own names in 1947 for $4,000. When, in 1948, they talked with the welfare office caseworker, their only asset, at least as reported by the caseworker, was a $1400 bank account. Respondents and their daughter say that in 1951, when they received part title to the Vermont Street property, they had lived up all their money. There is neither evidence, nor even a suggestion that respondents in 1951, or at any time thereafter, had any funds to pay on the purchase of real estate or that either actually paid anything on the purchase price for either property.

On appeal, appellant asserts that the deed with respondents’ names thereon shows that they had an interest of one-half in the property which was sold for $7,950, and they received no consideration for deeding away their interest. Appellant says further that although the Director found that respondents had purchased the property, whether they did or not is really unimportant, since they either purchased it or received it by gift, and had an interest therein which they deeded away for an inadequate consideration.

Now, while the Director is not a court, nevertheless, he must, in arriving at his decisions, weigh the evidence. We recognize that a claimant has the burden of proof and that the Director may decide a claim solely upon lack of credibility of uncontroverted and unimpeached testimony. Thornsberry v. State Department of Public Health and Welfare, 365 Mo. 1217, 295 S.W.2d 372, 376. However, from the record here we find no substantial evidence that respondents “purchased” the property as the Director specifically found. He has based his decision solely on the contents of the deed, without considering the uncontra-dicted explanation for respondents’ names being therein. He has not suggested even a possible source from which respondents might have secured the money to make the “purchase” which he found. It does not affirmatively appear that his decision is based upon disbelief of the testimony of respondents and their daughter. In many instances it is necessary to look back of and beyond the deed to determine what interest, if any, a named grantee has in the property. If any deed is conclusive, then Katherine Andrews, the lawyer’s secretary and straw party, would, if she had been a recipient of old age benefits, be barred thereafter because she received none of the proceeds.

Appellant says the Agnes Street property was purchased with proceeds from the sale of the Vermont Street property. It was the latter property that was involved in the divorce suit and there is no evidence that respondents invested one dollar in it. In its brief appellant says the Director’s decision is supportable because of statements against interest, made by the daughter Mary Averill Gordon. In the first place she is not a party to this litigation. Second, these so-called statements against interest were legal conclusions made in response to inquiries by the referee and to the effect that “her parents’ names on the deed gave them an interest” and that “her father might have made her give him half the proceeds”. Such testimony was improper, called for legal conclusions and will not support the Director’s decision.

In the recent case of Powers v. State Department of Public Health and Welfare, Mo.App., 359 S.W.2d 23, the Director struck an elderly widow from the rolls. This widow owned a house and little acreage in the country. She offered to give her daughter and son-in-law a building lot on the acreage if they would build a house thereon and live near her. The lot selected was surveyed and the children built the house but before the tract had been deeded to them. Then the- mother deeded the lot, which at that time had the house on it, to the children. The Director ruled that she was owner of the house and lot which she conveyed without receiving adequate consideration. The circuit court remanded for redetermination. This court affirmed the circuit court and the Supreme Court denied certiorari. In that case there was no substantial evidence that the mother was the real owner of the house, regardless of the fact that she held the record title. In fact, the evidence was conclusive that she did not own the house and had contributed nothing toward the cost of building it. It was apparently the Department’s position that a determination as to who held “the record title” was conclusive and that to consider other evidence would require application of equity which only courts may apply.

In our case there is no evidence (except the record title) that respondents were the real owners of the house or any part of it. The evidence is rather conclusive that they were not, and had contributed no part of the purchase price. In fact, there is no evidence which raises even a strong suspicion that they possessed any funds with which to buy either the Vermont or Agnes Street property, in whole or in part. In 1951, the Vermont property belonged to Mary Averill and her husband. The record title and all the oral testimony so show. Then the Averills were divorced and claimants became record title holders in part, but there is no evidence they paid anything therefor. Then the Vermont property was sold and the proceeds, according to all the testimony, used to buy the Agnes Street residence. If claimants paid nothing on the purchase price of either of these properties, then they were not purchasers in whole or in part. If claimants were not purchasers and were given only what claimants and daughter Mary say they were given — namely no real and substantial ownership' — ■ then the consideration they received for deeding away such interest was not inadequate.

We do not believe the Director may blindly close his eyes and his mind to all of the evidence except the deed in every case. This court, therefore, in this case, is in accord with the ruling and judgment of the circuit court.

The judgment of the circuit court remanding to the Department for a rede-termination of the issues is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Robert A. FARR, Plaintiff-Respondent, v. Thomas MANZELLA d/b/a American Cab Company, Defendant-Appellant.
    No. 23632.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Lewis W. Sanders, Kansas City, for appellant.
    Arthur C. Popham, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, a pedestrian, was struck and injured on a public street in Kansas City, Missouri, by a motor vehicle owned and operated by defendant taxicab company. Trial to a jury resulted in a verdict and judgment for plaintiff in the amount of $9000. Defendant appeals.

The accident occurred at the intersection of 8th and Charlotte Streets, in the early evening of November 6, 1958. Charlotte is a north-south street, 46 feet wide, and traffic is limited to south bound. 8th is an east-west street. There are traffic lights at this intersection.

According to the evidence, plaintiff was, at the time, about 70 years of age and in reasonably good physical and mental condition. He stated that, as he stood at the southwest corner of the intersection, waiting for the signal, he observed a taxicab parked on the north side of 8th, just east of Charlotte, headed west; that, when the traffic light “flopped” green, he stepped into the crosswalk and proceeded to walk eastward, in the crosswalk, watching the traffic light; that he did not again see the taxicab.

Corp. Hagedorn, Kansas City police, stated that he arrived at the scene of the accident and found plaintiff lying in Charlotte Street, 47 feet south of the south curb line of 8th, and 6 feet west of the east curb line of Charlotte; that he was in a semiconscious state, suffering from a severe laceration on his head, from which he was bleeding; that there was blood on plaintiff’s head and blood on the street; that Mr. Hord (the operator of the taxicab) was present and told and showed him where and how the accident occurred; that plaintiff was unable to speak coherently; that he was loaded into an ambulance and sent to Kansas City General Hospital.

Mrs. Knight stated that plaintiff had a room at her house, at the time he was injured; that, prior to his injury, he was alert and his health was good; that he arrived home at about 8:00 p. m. on November 6, the day he was injured; that she and another tenant helped him to his room; that he scarcely knew what he was doing; that there was blood on him, and his legs and back were hurting; that he could hardly walk; that she and another person stayed and attended him throughout the night; that he was taken to General Hospital the next day.

Orville Farr, plaintiff’s son, came to visit his father a little after 8 :00 p. m. He stated that he found him lying across the bed, semiconscious, blood on his face and shoulder ; that there was no bandage on his head; that he was not himself, was in pain, and was holding his stomach and side; that he wouldn’t talk; that “he didn’t make sense”; that, later, he saw him at the General Hospital and had him removed therefrom to Research Hospital; that, at the time of trial (Nov. 1961) plaintiff required full time personal care in a nursing home. He stated that, in his father’s room, he found a billfold with some money in it, about which his father could tell him nothing.

John Manzella, (a son of Thomas) general manager of defendant, was called as a witness by plaintiff. He stated that he learned of the accident over defendant’s radio; that he drove to the scene; that plaintiff was lying in the street; that he had blood on him and was bleeding; that defendant’s supervisor was also present, as was the operator of the cab, Mr. Hord; that Mr. Hursh, a lawyer and adjuster, and Mr. Stein, a shorthand reporter, also arrived at the scene at about that time; that plaintiff was put in an ambulance; that witness drove to General Hospital where he knew that plaintiff was being taken; that he saw Hursh and Stein at the Hospital and knew what they were there for; that witness talked to Hursh; that Hursh intended to get a “release” from plaintiff; that Hursh was, “indirectly”, employed by defendant but was directly employed by Vincent and Cook, who were adjusters, “that is what they are paid for”; that, at the General Hospital, he saw Hursh, Stein and plaintiff in Hursh’s automobile; that he followed the car to plaintiff’s residence; that witness parked his automobile nearby,, while Hursh and Stein talked with plaintiff; that, eventually, Hursh came to witness’ car and said “the baby is born”, or words of that import, meaning that he had obtained a release from plaintiff; that witness cashed a check for $100, drawn on defendant and payable to plaintiff, presented to him by Hursh. (The record is unsatisfactory as to when or why plaintiff was released or left General Hospital a very short time after his admission and without, apparently, having received any adequate treatment for his serious injuries, not even a bandage or dressing on his bleeding head). Mr. Manzella further admitted that he had previously testified, by deposition, that Mr. Hord, the cab driver, told him at the scene of the casualty how the accident had occurred, and that plaintiff was struck while walking across the street in the crosswalk. He also stated that such testimony was true when he gave it and that it was true at the time of this trial.

Dr. Overesch, a prominent and well qualified orthopedic surgeon, stated that, when he saw plaintiff at Research Hospital on Nov. 19, he learned that he had been in City General Hospital for some two weeks prior thereto; that he had been in traction; that he had an extensive head laceration which was healed; that he had suffered a comminuted fracture of the left side of the pelvis and of the acetabulum (hip socket) ; that any motion of the hip was painful ; that pressure over the pelvis was painful; that he was mentally confused; and that the injuries he received, including his brain injury and mental condition, were of a permanent character and that he would continue to suffer therefrom.

Defendant offered no evidence.

Defendant makes no point regarding the nature, character, seriousness, or permanency of plaintiff’s injury. There is no claim made that the amount of the judgment is excessive. While defendant pleaded, in bar of this action, that plaintiff had released his claim against defendant, for a valuable consideration, he makes no mention of that point in his brief.

Defendant contends that no sub-missible case was made. This contention rests on his theory that there is no evidence tending to prove that defendant was guilty of any negligence. In ruling that point we will bear in mind that plaintiff’s evidence stands uncontroverted and that he had a verdict and judgment thereon. We shall accept it as true and draw therefrom every reasonable inference in favor of the verdict. Buesching v. St. Louis Gaslight Company, 73 Mo. 219, 230-231.

Plaintiff stood at the southwest corner of the intersection watching for the traffic light to change. When it turned green he stepped down into the pedestrian crosswalk and walked therein eastward, watching the traffic light. He was struck by defendant’s taxicab when near the east curb line of Charlotte. These are the undisputed facts in evidence. There is one person who knew all of the facts that transpired, towit, Mr. Hord, defendant’s employee. But defendant did not call him nor did he offer any explanation of why he failed to do so. We assume that he was not called as a witness because his testimony would have been unfavorable to defendant and would have confirmed the facts related in evidence by Mr. Manzella.

Plaintiff pleaded, proved, and instructed on a traffic A 1 ordinance, of Kansas City, Missouri, which is as follows:

“ * * * A pedestrian crossing or starting across at a crosswalk or intersection on a green signal * * * shall have the right of way over all vehicles, including those making turns, until such pedestrian has reached the opposite curb or safety zone, and it shall be unlawful for the operator of any vehicle to fail to yield the right of way to any such pedesterian. * * * ”

Under the ordinance, defendant was required to yield the right of way to plaintiff, he being in the crosswalk long before the vehicle struck him, long enough for a 70 year old man to walk 40 feet, in full view of Mr. Hord. Under the uncontro-verted facts, Hord was negligent and such negligence contributed to cause the injury.

But, defendant says, the evidence discloses that plaintiff was guilty of contributory negligence as a matter of law in that, after entering the crosswalk, he failed, thereafter, to look at the cab. He cites a number of cases, none of which involved facts similar to those in this record. However, whether or not one is guilty of negligence is usually for the jury to say. Fortner v. St. Louis Public Service Company, Mo., 244 S.W.2d 10, 13. Determination of that point depends upon the surrounding facts and circumstances, for what would constitute negligence in one situation might not do so in other circumstances. Fortner v. St. Louis Public Service Company, supra; Hamilton v. Ross, Mo., 304 S.W.2d 812, 813-814. In this case, plaintiff saw the cab when it was parked, east of Charlotte, headed west. He could not have known whether the driver would proceed west, across Charlotte, or whether he would enter the intersection and turn south. But he had a right to rely on Mr. Hord’s obeying the law and, in the event he should turn south on Charlotte, plaintiff could legally rely on his yielding the right of way to plaintiff, who was already walking eastward in the crosswalk. Lackey v. United Railways Company, 288 Mo. 120, 231 S.W. 956, 961. He had a right to assume that Hord would not turn south into Troost and drive directly upon him. O’Shea v. Pattison-McGrath Dental Supplies, Inc. et al., 352 Mo. 855, 180 S.W.2d 19, 21. Plaintiff’s duty to look northward again, toward the parked cab on 8th Street, east of Charlotte, was relative, not absolute. As a general rule a person is not required to look for danger when there is no cause to anticipate danger. The walk light itself was some assurance to plaintiff that he could proceed safely and that southbound vehicles, including defendant’s cab, would not enter the crosswalk and strike him. These were factors that the jury could properly consider in determining whether plaintiff was guilty of negligence in not again looking northward after entering on the crosswalk. Romandel v. Kansas City Public Service Company, Mo., 254 S.W.2d 585, 591. Plaintiff was not guilty of contributory negligence as a matter of law; that question was for the jury under the evidence here shown.

Plaintiff’s instruction No. 2 submitted facts necessary to be found to support a finding that he had not executed a valid release of his cause of action, as pleaded by defendant. In his instruction No. 3 plaintiff submitted facts required to be established in order to support a verdict for him on the issue of negligence, causation and plaintiff’s damages resulting from the submitted negligence.

Defendant complains of the giving of plaintiff’s burden of proof instruction No. 5, wherein the jury was told “ * * * if, from the greater weight of all the credible evidence in the case you find all the facts to be as outlined and submitted in the foregoing instruction No. 2, then plaintiff, Mr. Farr, has met and discharged all burden of proof legally resting upon him”.

Instruction No. 3 required the jury to find every element and fact necessary to support a verdict for plaintiff on the negligence charged in the petition, established by the evidence, and submitted by this instruction. It was a verdict directing instruction.

Defendant contends that instruction No. 5 was reversibly erroneous and supports his position by citing Hilton v. Mudd, Mo.App., 174 S.W.2d 31, 38. What is there said has application to a verdict directing instruction but No. 5 here was not in that category. It was in the nature of a discretionary instruction. He also cites Lawson v. Davidson, Mo., 344 S.W.2d 76, 77, 79. There, too, the instruction considered directed a verdict and no finding of causation was required therein. In the case at bar, instruction No. 3 required a finding of every element necessary for the finding of a verdict. Instruction No. 5 referred only to instruction No. 2, which, in turn, dealt only with the question of “release”. That issue is not mentioned by defendant in this appeal.

Defendant offered instruction No. 7, which was given. It deals extensively with the issue of plaintiff’s contributory negligence. Instruction No. 8, offered by defendant dealt in detail with the matter of burden of proof borne by plaintiff.

We do not believe that defendant was prejudiced by the giving of the instruction, even if it be conceded to be technically erroneous. The error did not materially affect the merits of the action. Section 512.160 RSMo 1959, V.A.M.S.; Crosby v. St. Louis County Cab Company, Inc., Mo.App., 320 S.W.2d 944, 947.

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: HUNTER, Presiding Judge.

text:
    Lawrence G. SILVER, Alpha Hawman, H. E. Hamann, and Harold Wright, Trustees in Charge of the Winding up of the Affairs of Stewartsville State Bank, a Former Corporation, Plaintiffs-Respondents, v. B. O. JOHNSON, Defendant-Appellant.
    No. 23631.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    Newhart & Zahnd, John W. Newhart, L. Glen Zahnd, Savannah, for appellant.
    Miner & Martin, St. Joseph, Robison & Miller, Maysville, for .respondents.
   HUNTER, Presiding Judge.

This is a suit for the balance due on six promissory notes given in 1951 and March 1952, and for collection fees; brought by plaintiffs-respondents as Liquidating Trustees of the Stewartsviile State Bank against defendant-appellant, B. O. Johnson who relied solely oii the defense of payment.

Defendant asserted that on September 12, 1951, he made two payments in the sums of $1,028.03 and $957.93 respectively by checks drawn on the Stewartsviile State Bank. If these two alleged payments were in fact made, the notes in question have been paid and defendant is entitled to a favorable judgment. If they were not made then the trial court’s judgment against defendant for $3,202.40, principal and interest, and $320.24 attorneys’ fees is to be affirmed.

The facts are interesting but somewhat frustrating for their failure to reveal what actually occurred in certain instances. According to defendant’s testimony, on September 10, 1951, he sold some cattle to the Heady & Fannen Livestock Commission Company of St. Joseph for $2,583.92 and received from that company a blue credit ticket in that amount to be credited to him in his checking account at the Stewarts-ville State Bank. Defendant introduced in evidence as his Exhibit E this blue slip with the explanation that as an employee of the mentioned Commission Company he knew it was their practice when a sale of cattle was made to issue in triplicate (blue, white and yellow) an account of sale of livestock slip and to give the blue copy to the seller. This particular blue slip stated: “September 10, 1951 * * * by direction and for use of Orville Johnson through Heady & Fannen Agent has deposited $2583.92 in - for credit of Stewartsville State, Stewartsville, Mo.” A portion provided: “Valid only when stamped by St. Joseph Bankers Joint agent.” This portion was not stamped.

According to defendant the slip was eventually to give him $2,583.92 in credit in his account in the Stewartsville State Bank. However, for this to occur it was not only necessary for the sale of cattle to have been made but also for the commission company to deposit with the St. Joseph Stockyards Bank its check or cash in the amount of the sale price so that the Stockyards Bank would have that money or credit available for crediting to the account that the Stewartsville State Bank maintained in the Stockyards Bank.

The pertinent records of the Stockyards Bank were introduced in evidence. These records fail to show any deposit by the Heady & Fannen Livestock Company for the date of September 10, 1951; nor do they show any credit to the Stewartsville State Bank for that day. Under dates of September 11, and 12, 1952, there were credits to the Stewartsville State Bank but none were in the amount of $2,583.92. Nor was there any evidence to the effect the mentioned $2,583.92 which defendant claimed was owed him by the Commission Company was actually deposited with the Stockyards Bank. The pertinent records of the Stewartsville State Bank do not show that it received any credit in its account in the Stockyards Bank on September 10, 1951; nor credit on any other day that might belong to defendant.

Clemons Drag, the assistant cashier for the Stockyards Bank during the times in question, examined the mentioned blue credit ticket (Exhibit E) and was asked, “Q. You can’t tell the court whether or not the seller of that livestock received the cash or the check himself or what happened to the money, can you? A. No, Sir.”

Defendant testified that on September 12, 1951, he went to the Stewartsville State Bank, where he frequently did business and maintained a checking account; gave its cashier, Carl L. Hamann, two checks in the respective sums of $1,028.03 and $957.-93 drawn on his checking account in that bank and instructed Hamann to apply them on the debt defendant had there. One check had on it the notation “note & int.” and the-other had the words “On note and interest”. At that time the records of the bank showed defendant had only $101.76 in his. account. These records also showed that neither of the two checks ($1,028.03 and $957.93) were charged against his account- and that the balance in the account remained at $101.76. The note register book, of the bank did not reflect these checks nor credit any sum to the payment account of' the mentioned notes. Nor did the notes themselves reflect any payment resulting-from these checks. There is no evidence t>f any specific agreement by the bank to-accept the checks themselves as absolute payment of the debt. Nonetheless in an unexplained manner the two checks were stamped “Paid” and defendant received' them back, probably at the end of the calendar year with his other cancelled checks, for the year.

In December, 1952, defendant made what he testified he thought was his final payment on his notes. He stated that on December 30, 1952, he and his wife went to-see Carl Hamann at the latter’s home and there gave him a check for $2,000 that had. been endorsed to defendant for a farm sale; that Mr. Hamann said this paid the notes, in full “and if I had overpaid him that he-would check on the notes.” This $2,000-payment in due course was credited on the notes. He related that later Carl Hamann “agreed then that I had overpaid him” but that he is not now making any counterclaim for any overpayment. Nor has he ever been able to get possession of the notes sued on although he has tried to do so.

Defendant’s position on this appeal is that the trial court erred in failing to credit his two checks of September 12, 1951, as payments on the notes for the reason that the bank accepted those two checks, marked them paid and treated them as an “absolute payment”.

It is the general rule that the payee’s mere receipt and acceptance of his debtor’s check will not constitute payment of the debt in the absence of an express agreement to that effect, and without such an .agreement or consent the debt is not discharged until the debt is in fact paid in due course. Komosa v. Monsanto Chemical Company, Mo.Sup., 317 S.W.2d 396, 402(10) ; Maryland Casualty Co. v. Dobbin, 232 Mo.App. 557, 108 S.W.2d 166(7); Skinner v. Johnson, Mo.App., 74 S.W.2d 71, 73(4). As stated by this court in the early case of Groomer v. McMillan, 143 Mo.App. 612, 128 S.W. 285, 286, “Accepting a check is not an agreement that it is itself a payment of the money named therein. * * * And is only payment when the money is received on it.”

Our Supreme Court in Le Page v. Metropolitan Life Insurance Company, 314 S.W.2d 735, 738, expressed it thusly: “It is a universal rule of law that in the absence of an agreement to the contrary, the delivery of a check to the creditor and his acceptance of it is not payment of the debt or obligation until the check has itself been paid, and that when the check is not paid, it may not be said to have constituted payment of the debt o.r obligation for which it was given.” Further, the presumption is that the creditor has not taken the check in absolute payment, and the burden is on the debtor to prove by clear and cogent evidence that the check has been taken in absolute payment. Hickerson v. Con Frazier Buick Co., Mo.App., 264 S.W.2d 29; 70 C.J.S. Payment § 24, page 233.

In 40 Am.Jur., Payment, section 85, page 774-775, it is stated, “The presumption that a check or draft given in payment was intended merely as a conditional payment is not destroyed * * * by the act of the bank upon which the check or draft was drawn in charging it to the drawer’s account or stamping it as paid, if it is not in fact paid.” See, also, 9 C.J.S. Banks and Banking § 343, page 690. It is for this reason a check is often referred to as a conditional payment, the condition being its collectibility from the bank on which it is drawn. 70 C.J.S. Payment § 24, p. 236. It is on fulfillment of the condition by payment of the check that that which was conditional becomes absolute.

The defense of payment, upon which defendant relies is an affirmative defense. Civil Rule 55.10, V.A.M.R. Defendant contends the act of the Stewarts-ville State Bank in receiving the two checks of September 12, 1951, in some way, causing or permitting them to be stamped paid and in retaining them with defendant’s other cancelled checks until defendant picked them all up about the end of the year is proof that the checks were an absolute payment.

Viewed in the light of the above quoted and cited authorities defendant’s contention is not meritorious. At the time defendant delivered the two checks totaling $1,985.96 to the bank to be applied on his notes there was only $101.76 in his account. He has failed to prove that the Stewartsville State Bank, or for that matter the Stockyards Bank, had received any additional money or credit that belonged to him. His bank balance was greatly insufficient to meet either of the two checks he gave on September 12, 1951. Under such circumstances there was no duty on the bank to debit his account in any amount or to credit his notes or note account with any payment. 7 Am.Jur., Banks, section 539, page 391; Annotation, 126 A.L.R. 208; 9 C.J.S. Banks and Banking § 342c, page 687. The evidence discloses that the bank did not debit or charge his account or credit his notes or note account with any payment. Why or how the two checks were marked “paid” is unknown but this is not controlling in view of the fact the two checks actually were not “paid”.

Defendant has failed to carry his burden of proof of payment made. On the contrary, the evidence is persuasive that no payment was made. The trial court did not err in so finding and in rendering its judgment accordingly.

The judgment is affirmed.

All concur.