text:
    CITY OF DAYTON, Kentucky, Appellant, v. Richard A. THOMPSON, Appellee.
    Court of Appeals of Kentucky.
    Nov. 8, 1963.

      Davies & Hirschfeld, Newport, Charles E. Graham, Dayton, for appellant.
    A. J. Jolly, Newport, for appellee.
   PALMORE, Judge.

The appellee Thompson was injured when he fell into an excavation while walking at night on a public sidewalk in front of the home of one Ryder and wife in the city of Dayton, Kentucky. In his ensuing action for damages a jury trial resulted in a $6,000 verdict and judgment against the city and the Ryders. The city appeals, claiming (1) the excavation had not existed long enough to sustain a case of constructive notice and (2) Thompson was contributorily negligent as a matter of law.

The accident happened near 10:00 P.M. on May 22, 1957. Thompson’s wife’s niece, Janice Byland, who lived next door to the Ryder house, graduated from high school that evening, and a number of her friends and family, including the Thompsons, had been invited to the Byland home after the ceremonies. When Thompson drove up, there were several other cars parked along the curb in front of the Byland and Ryder houses and, as it was drizzling rain, Thompson stopped his car in the middle of the street in front of the Byland house long enough to let his wife and her mother and sister out and then proceeded several car lengths farther on, past the Ryder home, and parked. As he walked rapidly back toward the Byland house along the sidewalk he fell into a hole where Ryder had removed one section of the concrete walk and excavated to a depth of 2^4 to 3 feet in order to install a new water pipe.

The sidewalk abutted the curb and was variously estimated as 2}^ to 4 feet wide. It was partially obstructed by the overhang or outward growth of a parallel hedge in the Ryder yard. At the time of the accident the cars parked alongside the curb obstructed the light of a street lamp located several doors up and on the other side of the street, so that the excavation lay within the shadow. Ryder said he had placed two lighted lanterns at or near the hole during the afternoon, but Thompson’s witnesses testified that there was no light there at the time of the accident. Mr. By-land, for example, said that when he left home at about 7:45 P.M. to attend the graduation he saw a lantern on the sidewalk and noticed it was unlighted. Later, he warned several of his guests as they drove up, but had gone inside when Thompson arrived. Thompson had no notice or knowledge of the condition of the sidewalk. Byland examined the lantern after the accident and found the wick so turned down that it would not burn.

Ryder testified that he broke up the concrete on Sunday, May 19, 1957, 3 days prior to Thompson’s mishap. There was other evidence, however, from which the jury could have believed that the hole was there as early as Friday morning, May 17, in which event it would have been manifestly visible during the daylight hours of 6 consecutive days preceding nightfall of May 22.

The city had no actual notice of the dangerous condition until after the accident. Ryder had not complied with a city ordinance requiring a permit and cash security deposit for cutting into a street or sidewalk.

“To render a city liable for dangerous conditions for travel of its streets and sidewalks, some officer or agency of the city having in charge their maintenance must have knowledge of the unsafe condition, or it must have existed for such a length of time * * * that knowledge of it could have been obtained by the exercise of ordinary care.” City of Danville v. Vanarsdale, 243 Ky. 338, 48 S.W.2d 5, 7 (1932).

“No undeviating rule can be established as to the precise length of time a defect must have continued to justify the presumption of knowledge in time to have remedied it .prior to the injury. * * In other words, each case must depend on the facts peculiar to it. * * * In determining what length of time will impute notice, regard should be had to * * * the apparent danger, whether very dangerous as apparent to everyone or merely a possible but not probable source of danger, etc. For example, if one should dig a deep ditch across a sidewalk and in no way guard the excavation, so that every person would be obliged to go around the ditch or step over it, the danger is so great that a very few days’ time would impute notice to the municipality.” McQuillin, Municipal Corporations, § 54.110 (Vol. 19, pp. 403-406).

KRS 94.360 provides that the legislative body of 2nd to 6th class cities, inclusive, “shall, by itself or through a department of public works or a superintendent of public works as provided by law, have and exercise exclusive control over the public ways * * * of the city.” On the theory that notice to the public works department would constitute notice to the city, Thompson introduced evidence (without objection) tending to show that the excavation on the sidewalk must have been seen by the garbage collectors employed by that department when they made their regular collection at the Ryder home on Monday, May 20, 1957. The city countered by showing that inspection of the sidewalks was the assigned responsibility of its police department, and not the public works department.

We peed not determine whether inspection of the sidewalks was a nontransferable duty of the public works department under KRS 94.360. In either event, the garbage tippers were not inspectors. They were subordinate employes whose duties were not related to the condition of the sidewalks. Knowledge of one not charged with the duty of inspecting or repairing the public way is not imputable to the city. Wyatt v. Henderson, 222 Ky. 292, 300 S.W. 921, 923 (1928); City of Danville v. Vanarsdale, 243 Ky. 338, 48 S.W.2d 5, 7 (1932).

On the other hand, the city ordinance requiring a permit for cutting into the sidewalk had the effect of making it a violation of law to do so without a permit. The detection of law violations being a primary function of the police department, the manifest presence of an excavation in the sidewalk charged that department with the duty of investigating to learn whether an appropriate permit had been granted.

Dayton is a small city running 10 blocks in one direction and 8 to 13 blocks in the other. A police cruiser covers the entire area once every hour. An officer driving past the Ryder home could hardly have failed to have his attention drawn at some time during the several days prior to the night of May 22, 1957, to the pile of fresh dirt in the Ryder yard and the opening in the sidewalk beside it. The evidence was clearly sufficient to authorize a finding that in the exercise of ordinary care the city should have discovered the dangerous condition and taken steps for the protection of pedestrians on the sidewalk before the night of May 22, 1957.

The facts of Eagan v. Covington, 166 Ky. 825, 179 S.W. 1026 (1915), on which the city strongly relies, are distinguishable. The accident in that case occurred in the daytime and resulted from a circumstance that “did not make the sidewalk dangerous until the day on which the accident occurred.” No violation of a city ordinance was involved. City of Catlettsburg v. Sutherland’s Adm’r., 247 Ky. 540, 57 S.W.2d 512 (1933), in which it was held that notice to the police of a defective condition in the public ways ordinarily is not notice to the city, likewise did not involve any active violation of law. Cases in which the police had some consequential responsibility have held to the contrary. See City of Louisville v. Lenehan, 149 Ky. 537, 149 S.W. 932, Ann.Cas.1914B, 164 (1912); City of Louisville v. Carr, 204 Ky. 119, 263 S.W. 674 (1924).

Thompson and his witnesses testified that there was no light or other device to warn him of ’the presence of the excavation. There was a large tree between it and the porch light of the neighboring By-land residence. Illumination from the only street light within any reasonable proximity was cut off by the automobiles parked next to the sidewalk in question. The night was dark and a light rain was falling. Thompson was walking rapidly, as he had reason' and right to do. These were the facts the jury was authorized to believe from the evidence. We think it would be absurd to hold that Thompson was con-tributorily negligent as a matter of law.

The judgment is affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    Richard NEWMAN, Executor of the Last Will and Testament of America Newman, Deceased, Appellant, v. KENTUCKY-WEST VIRGINIA GAS COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 8, 1963.
    W. E. Faulkner, Faulkner & Faulkner, Hazard, for appellant-.
    Cordell H. Martin, Hindman, C. Kilmer Combs, Ashland, Rudy Yessin, Frankfort, for appellee.
   CLAY, Commissioner.

This controversy involves the settlement of an estate, and particularly the title to a one-half interest in certain real property conveyed to the appellant, Richard Newman (individually), by his mother. The Chancellor adjudged the deed to appellant was champertous and void. No finding was made on appellant’s defense that appellees were estopped by reason of laches to question this deed.

This litigation is over 30 years old. It began after Merica Newman’s father died in 1929. Merica and her eight children were living in Oregon and California at the time. After the death of her father, her brother claimed title to the father’s estate. Merica solicited the aid of her children in prosecuting an action against their uncle for the purpose of determining title' to the property. She agreed that any expense incurred by the children would be repaid at the rate of two dollars for every dollar expended. Seven of the children did little or nothing to assist her. The eighth child, appellant, moved from California to Kentucky, was given power of attorney by his mother to look after her interests, and did so through two trials in the circuit court and two appeals to the Court of Appeals. The result was that Merica defeated her brother’s claim and was declared to have an interest in her father’s property. It is interesting to note that the strife among these eight children was not confined to this state but that they also litigated kindred matters through the Supreme Court of Oregon.

After her title was finally established, Merica Newman executed the deed to appellant which is in controversy here. The deed, after reciting the history of the mother’s litigation, contained the following language:

“Whereas it was necessary for her to have a representative in Kentucky acquainted with the situation respecting her father’s estate, and the interest which she claimed therein, the first party, Merica Newman, arranged with the second party, her son, Richard Newman, to represent her in all matters connected with the prosecution of the two suits mentioned above, and to this end executed and delivered to him her power of attorney authorizing and empowering him to act for her and in her stead in all matters pertaining to the proper preparation and prosecution of said actions, and agreed with said Richard Newman at the time that in the event she should be successful in recovering what she claimed to be her interest in the estate of said Richard Hall, deceased,. she would convey to said Richard Newman a one-half undivided interest in such property as said recovery might include; * * (Our emphasis)
KRS 372.060 provides:
“Any contract, agreement or conveyance made in consideration of services to be rendered in the prosecution or defense, or aiding in the prosecution or defense, in or out of court, of any suit, by any person not a party on record in the suit, whereby the thing sued for or in controversy or any part thereof, is to be taken, paid or received for such services or assistance, is void.”

On its face the agreement recited in the deed falls within the scope of this statute. Other evidence in the case is consistent with such agreement. As a matter of fact, appellant in his brief admits that this agreement would be champertous if made between his mother and a stranger. He contends that because of the blood relationship the statute should not apply to this family arrangement. That contention was conclusively answered in Charles v. Phillips, Ky., 252 S.W.2d 920. The Chancellor therefore correctly decided that the deed executed pursuant to this champertous agreement was void.

Appellant contends, however, that appel-lees were estopped by reason of laches to question this deed. This defense was pleaded by appellant in paragraph VII of his Reply to a counterclaim. (It may have been overlooked by the Chancellor in view of the extreme prolixity of this pleading, which violated CR 8.02. For some reason appellees in their brief ignored this issue though it was raised on appeal.)

Whether or not this was a valid defense we will not undertake to determine. Since a justiciable issue with respect thereto was presented by the record, it should be decided by the Chancellor. See Stephenson v. Burton, Ky., 246 S.W.2d 999.

The judgment is reversed, with directions to adjudicate the issue of estoppel and laches and to enter a new judgment in ■conformity with such determination.


author: WADDILL, Commissioner.

text:
    Alvin Sidney HOSKINS, Petitioner, v. Henry MEIGS, Judge, Franklin Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 8, 1963.
    Alvin Sidney Hoskins, pro se.
    James P. Hanrahan, Frankfort, for ap-pellee.
   WADDILL, Commissioner.

Petitioner, an inmate of the Kentucky State Penitentiary, seeks an order from this Court directing Honorable Henry Meigs, as Judge of the Franklin Circuit Court, to immediately grant him a trial on a pending indictment charging him with the commission of the crime of armed robbery.

For response, Judge Meigs states that, although the subject indictment was “filed away at the September 1960-term of the court with leave to re-docket,” he has elected to treat the petition in this proceeding as a motion to re-docket the indictment. He further states that the indictment has now been re-docketed and that the Warden of the Kentucky State Penitentiary has been notified to have the petitioner present in the Franklin Circuit Court on October 7, 1963, for arraignment and for assignment of the case for trial.

Since the Franklin Circuit Court has granted the petitioner the relief he now seeks from this Court we are dismissing the petition filed in this Court.

Wherefore, the petition is dismissed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. OAKLAND UNITED BAPTIST CHURCH et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 8, 1963.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Walter Mobley, Flemingsburg, for appellant.
    Thomas E. Phipps, Ashland, for appel-lees.
   PALMORE, Judge.

In the acquisition of right-of-way for an interstate highway (1-64) the state highway department found it necessary to condemn the Oakland United Baptist Church at the junction of U. S. Highway 23 and Kentucky Highway 538 about 3 miles from Catlettsburg in Boyd County, Kentucky. The department appeals from a judgment entered on a jury verdict in circuit court awarding $10,000 as the value of the property.

The church was a 30' x 46' concrete block structure situated on a .21-acre lot (9200 square feet). It was built in 1952. It had no basement and no plumbing facilities. A small toilet building of the same type of construction was separately located on the back of the lot.

During the trial the court excluded evidence offered by expert valuation witnesses for the Commonwealth to show, for purposes of comparison, that the Summit Nazarene Church in the same county had sold in 1955 for $4500. The Summit church was a much older building, constructed of frame, but it had certain other features superior to the Oakland church and was considered by one of the appraisers to have been worth 20% more than the latter. The Summit church was substantially the same distance from the city of Ashland as the Oakland church was from Catletts-burg, though the distance between the two churches was some 10 miles. The evidence was excluded on the ground that they were too far apart for comparison.

It is firmly settled that comparable sales are extremely valuable evidence in condemnation cases and are not lightly to be excluded. See Stewart v. Commonwealth, Ky., 337 S.W.2d 880, 884 (1960), in which it was said that “where the properties are reasonably similar, and a qualified expert states his opinion that they are sufficiently comparable for appraisal purposes, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony altogether.” After all, judges must recognize that their own qualifications to assess the degree of comparability are likely to be inferior to those of the professional witness.

As the witnesses pointed out in this case, sales of church property are scarce. For that very reason, when there is one that is reasonably susceptible of comparison, it has high evidentiary value. It is our opinion that the factual and opinion evidence tendered by the highway department’s witnesses indicated a sufficient similarity between the properties here in question to warrant consideration by the jury, and that the exclusion of it was a prejudicial error. The distance alone was not a disqualifying factor. See Commonwealth Dept. of Highways v. Finley, Ky., 371 S.W. 2d 854 (1963).

The judgment is reversed with directions that a new trial be granted.


text:
    UNIVERSITY OF KENTUCKY, etc., Appellants, v. James GUYNN, Appellee.
    Court of Appeals of Kentucky.
    Nov. 8, 1963.

      John B. Breckinridge, Atty. Gen-., Frankr fort, W. L. Matthews, Jr., College of Law, Elwood Rosenbaum, Lexington, for appellants.
    George E. Barker, Shouse, Barker & Coplin, Lexington, for appellee.
   CLAY, Commissioner.

The judgment appealed from affirms an award of $10,000 made by the Board of Claims in a personal injury proceeding against appellants. The award is attacked on several grounds. Court review is limited by KRS 44.140 and KRS 44.150.

Donna Mae Guynn, nine years old, was seriously injured when struck by a station wagon owned by the University of Kentucky and operated by its agent, appellant West. The child was crossing the street from a parked automobile on the south side to attend a school located on the north side. West was proceeding westwardly in the north lane and the child was struck in that lane.

Appellants first contend there was no substantial evidence to support the findings of fact by the Board. Since the Board is only authorized to make an award if the claimant would be entitled to a judgment in an action at law (KRS 44.120), they maintain the evidence would not have been sufficient to submit the issue of liability to a jury. To sustain this argument would require us to hold as a matter of law there was no evidence of substance that West was negligent in the operation of his automobile. We cannot so conclude.

In substance the Board found that the accident occurred in an area marked as a school zone at a time when other children were playing or walking along the sidewalk in front of the school; that West was familiar with this area; that he negligently failed to keep a lookout to observe the safety of pedestrians; and West’s negligence was the direct and proximate cause of the child’s injuries.

Because circumstantial evidence played an important part in this case, it was peculiarly one for a trier of fact to determine the issue of negligence. The fact that the child had to traverse at least the width of a traffic lane before reaching the point of impact, coupled with the testimony of West that he did not see her until just before she was struck, would permit a reasonable inference that he was not keeping a proper lookout, particularly when he knew school children were moving about in this area. The testimony of West tended to prove he was not at fault, but he was contradicted with respect to one important physical fact (the presence of a double parked car), and some circumstantial evidence was not favorable to him. There was certainly ample substantial evidence to support the Board’s determination of liability.

There was an issue of contributory negligence on the part of the child’s father concerning which the Board did not make a specific finding. Under the circumstances we must assume the Board decided this issue adversely to appellants, and the evidence justified such a determination.

It is next contended the findings of fact by the Board (required by KRS 44.-086) were not "sufficient to fix liability” on appellants. While some of these purported "findings of fact” constituted a discussion of the evidence, when considered with the conclusions of law they constituted a sound basis for the Board’s decision. They were therefore adequate.

It is next contended the full Board did not consider this claim since the record showed that one member did not participate. However, KRS 44.070(6) (effective when this claim was considered) provided that an award could be made by two members of the three member Board.

It is finally contended the award of $10,-000 was $5,000 in excess of the Board’s jurisdiction. At the time Donna Mae Guynn was injured (November 1957) the statutes then effective limited recovery on such a claim to $5,000. In 1958 this amount was raised to $10,000 (KRS 44.070(5)). The amendment increasing the amount became effective in June of 1958 and the claim was subsequently filed on November 26, 1958. Appellants maintain that whatever rights the claimant had were vested as of the time the claim accrued, and the 1958 amendment to the law cannot be construed retroactively to increase the amount of the allowable recovery.

The Board of Claims Act does not create causes of action against the Commonwealth. See 81 C.J.S. States § 215 b., page 1307. Its effect is to waive the defense of sovereign immunity by providing a remedy for a particular character of claim. See Commonwealth v. McCoun, Ky., 313 S.W.2d 585. In prescribing this procedure the legislature was acting under section 231 of the Kentucky Constitution, which authorizes the General Assembly to direct the manner and in what courts suits may be brought against the Commonwealth. As a matter of grace, such a remedy may be granted, withdrawn or restricted at the will of the legislature. Commonwealth v. McCoun, Ky., 313 S.W.2d 585; Foley Construction Company v. Ward, Ky.,-S.W.2d-. In its discretion it may fix or alter the amount recoverable. Commonwealth v. Daniel, 266 Ky. 285, 98 S.W.2d 897.

At the time of this accident Donna Mae Guynn had no assertable claim for damages against the Commonwealth except to the extent the legislature had granted a remedy. She had no vested right to sue the State at all, and at least until proceedings were commenced the conditions upon which sovereign immunity would be waived could be changed either for her benefit or to her detriment. At the time she filed her claim she had no remedy except the one then existing, with its fixed limit of recovery. The date her potential cause of action accrued had no relevancy to the extent of the State’s liability (except to start the running of a limitation period). When the claim was filed the Commonwealth had consented to a justiciable liability in an amount not exceeding $10,000. The Board was authorized to award this maximum.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Orville Oscar DUBLIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    Rehearing Denied Dec. 13, 1963.

      Robert B. Reed, Paducah, for appellant.-
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Orville Oscar Dublin was convicted of conversion of a motor vehicle and was sentenced to serve one year’s confinement. KRS 434.040. On appeal he urges that the indictment is defective for failure to follow the statute, for failure to charge a confidential relationship, and for charging two offenses in the same indictment. He also insists that the evidence does not sustain the verdict and that the jury was not properly instructed.

Appellant was the president of Dublin Autos, Incorporated, an auto dealer in Murray. From time to time his agency had purchased a large number of automobiles from Amsko Distributors, Incorporated, a distributor for Volkswagen cars in New York City. The transaction out of which this offense arose appears to have been typical of the method of handling the delivery, payment, and title transfer.

KRS 434.040 provides:

“Any person who fraudulently converts to his own use, or secretes with intent to convert fraudulently to his own usé, any motor vehicle or any part of a motor vehicle delivered to him, shall be punished as provided in KRS 433.220 or 433.230, depending upon the value of the vehicle or part.”

The commission of the offense by appellant was charged in the indictment as follows :

“ * * * did unlawfully, willfully, feloniously, and without the consent of the owners thereof, fraudulently convert to his own use, or secrete with the intent to convert fraudulently to his own use, six (6) Volkswagen automobiles with serial numbers as follows, to-wit: #3395558, #3290652, #3388805, #3194368, #3217269, and #3429263, of a total value of more than $20.00, as follows: The said Orville Oscar Dublin, acting as an officer of Dublin Autos, Inc., entered into an agreement with Amsko Distributors, Inc., a New York corporation, wherein the said Dublin as said officer of Dub-: lin Autos, Inc., was given possession of the aforesaid 6 automobiles owned by Amsko Distributors, Inc., with the title papers to be held by Bank of Murray, of Murray, Kentucky, and said title papers for said automobiles to be delivered to the said Dublin only upon payment by him of the sum of $1535.-00 as the purchase price of each of said automobiles to Bank of Murray, said sum to be forwarded by said bank to Amsko Distributors, Inc.
“Notwithstanding the hereinbefore-mentioned agreement, the said Dublin did wilfully, feloniously, and fraudulently convert to his own use or secrete with the intent to fraudulently convert to his own use the aforementioned automobiles by disposing of or secreting same without payment to Bank of Murray of the sum of $1535.00 each to be forwarded to Amsko Distributors, Inc., and without obtaining said instruments of title for said automobiles, all of which was done without the knowledge and consent of Amsko Distributors, Inc., or Bank of Murray, and with the felonious intent to deprive the owners of said property and to fraudulently and feloniously convert same to the use and benefit of the said O. O. Dublin or to secrete same with the intent to fraudulently and feloniously convert same to the benefit of the said Dublin, * Sj! sjs SS

It is evident that the indictment did follow the language of the statute. Ordinarily an indictment for a statutory offense drawn in the language of the statute is sufficient. Dorroh v. Commonwealth, 236 Ky. 68, 32 S.W.2d 550. Especially is this true when the words of the statute creating the offense are sufficiently descriptive of the offense. Commonwealth v. Fain, 248 Ky. 383, 58 S.W.2d 642.

Likewise, there is no merit in the contention that two offenses are charged. The statute creates a single offense, conversion of a motor vehicle, which may be committed in either of two ways as set forth therein. Criminal Code of Practice, Section 126(1); Knuckles v. Commonwealth, Ky., 261 S.W.2d 667.

Further, it was unnecessary to charge a confidential relationship existing between the appellant and the payee. Shackleford v. Commonwealth, 270 Ky. 60, 109 S.W.2d 13, relied on by appellant, is not in point. The Shackelford case involved an indictment under Carroll’s Kentucky Statutes, Section 1358a, now KRS 434.220. The reference in KRS 434.040 to two other statutes, KRS 433.220 and 433.230, involving grand and petty larceny, in order to determine the punishment indicates that KRS 434.040 was designed to cover a special situation in the handling of motor vehicles which should be treated as larceny. There is no defect in the indictment.

Concerning the sufficiency of the evidence, the transaction described in the indictment was testified to in detail by an official of Amsko, Incorporated, the owner of the cars, and by an official of the Bank of Murray. The six cars involved were part of a larger order involving eighteen cars, all handled in the same manner. Appellant had paid for twelve of them and secured the title papers from the bank as he had done customarily. The other six cars had been sold and delivered by him without the title papers. Appellant’s contention that the titles furnished were defective fails in the face of his acceptance of the same type titles on the other twelve cars involved.

The assertion that the court should have instructed the jury that if they believed the cars were purchased on credit the defendant had the right to dispose of them merits no consideration. Other than the bare assertion, there is no argument or authority given sustaining it. Further, appellant’s motion for a new trial failed to point out wherein the court had failed to instruct the jury. There is nothing to consider. Grayson v. Commonwealth, Ky., 354 S.W.2d 761.

Judgment affirmed.


author: PAUL VAN OSDOL, Special Commissioner. LEEDY, Judge

text:
    Stella ENDERMUEHLE, Plaintiff-Appellant, v. Olivia SMITH, Defendant-Respondent.
    No. 49323.
    Supreme Court of Missouri, En Banc.
    Nov. 11, 1963.
    Dissenting Opinion Nov. 26, 1963.

      Hough, Hormberg, Butler & Abels, F. Daley Abels, Clayton, for appellant.
    Fred B. Whalen, Warren Granel, Whalen, O’Connor, Grauel & Sarkisian, St. Louis, for respondent.
   PAUL VAN OSDOL, Special Commissioner.

In this case, plaintiff Stella Endermuehle had instituted her action by petition in which she stated a claim for her personal injuries alleged to have been sustained in a motor-vehicular collision at and in the intersection of Reed Avenue, a north-south street, and Hoffmeister Avenue, an east-west street, in St. Louis County.

In the collision the southbound Nash automobile driven by plaintiff and the eastbound Ford automobile driven by defendant Olivia Smith collided at some point in and near the center of the intersection.

Plaintiff sought the relief of a judgment for damages in her favor and against defendant in the sum of $22,550. And, by answer and counterclaim, defendant in whole general effect denied her responsibility for the casualty, and stated a claim on which defendant sought the relief of a judgment in her favor and against plaintiff in the amount of $100 for property damage.

Plaintiff had alleged, and the trial court submitted, defendant’s negligence under the humanitarian rule; and defendant had alleged, and the trial court submitted, plaintiff’s negligence specifically in failing to look out laterally and in failing to yield the right of way to defendant.

At the conclusion of the evidence introduced in the trial of the cause, by instructions tendered by the parties, the trial court submitted the factual issues that had arisen under the pleading, and under the evidence the adversary parties had introduced tending to support and prove and tending to undermine and disprove their respective adverse claims; and the jury, having heard, considered, weighed and assessed the value of the conflicting evidence, returned a verdict resolving the factual issues in favor of defendant and against plaintiff, that is, the jury specifically by the verdict found “for defendant on plaintiff’s cause of action” and further found “in favor of defendant and against plaintiff on defendant’s counterclaim,” and assessed defendant’s damages in the sum of $100.

The trial court overruled plaintiff’s motion for a new trial; and plaintiff gave notice of her appeal “from the judgment for Defendant on Plaintiff’s cause of action and judgment for Defendant on Defendant’s counterclaim * *

At the time of the casualty there were no traffic control lights or signals or signs at or near the Hoffmeister-Reed right-angle street intersection. The elevation of Hoff-meister is upgrade to the westward of Reed. The “top of the hill” on Hoffmeister is approximately two hundred feet west of Reed. Reed Avenue “is level.”

Plaintiff had testified that at about five forty on a February afternoon she was driving her Nash automobile southwardly on Reed Avenue. It was a clear day and the streets were dry. In approaching Hoff-meister Avenue, plaintiff had been moving at a speed of ten to fifteen miles per hour with the left side of the Nash two or three feet west of the center of Reed. When she had approached to a point “I would say” fifteen feet north of the intersection, plaintiff had “slowed up” to four or five miles per hour and she then and there looked to her right, westwardly, and there wasn’t any eastbound traffic on Hoffmeister. At that point, plaintiff could see sixty or seventy feet westwardly “up Hoffmeister.” She then looked to her left, eastwardly, and there wasn’t anything coming from that direction. Her Nash was then almost to the intersection. She then looked straight ahead, southwardly, and accelerated speed. When the front end of the Nash was in the center of the intersection the Nash was moving between ten and fifteen miles per hour. At this point, plaintiff looked to her right and saw defendant’s eastbound Ford about twenty-five feet “away from me.” Plaintiff tried to swerve to her left and possibly accelerated the speed of her car. When the vehicles collided, half of the Nash was south of the center of Hoff-meister. The front end of defendant’s Ford struck the Nash “about center broadside.” After the collision defendant said to plaintiff, “I’m sorry * * * but I didn’t see you in time to stop.”

In testifying, defendant said she was driving her Ford eastwardly down Hoff-meister in approaching Reed Avenue with the left side of the Ford one and a half or two feet to her right of the center of Hoff-meister, and at the speed of probably twenty-five miles per hour. As she “came down the hill” she had slackened speed and was moving about twenty miles per hour when she was forty feet west of Reed. She had started to slacken up when she was fifty or sixty feet west of Reed and was applying braking pressure until the vehicles collided. When defendant was about twenty feet from the intersection, she looked to her left and could see no southbound traffic on Reed Avenue. She saw plaintiff’s Nash a few seconds before the collision. When she first saw the Nash it was just entering the intersection, and defendant’s Ford was over (east of) the west curb line of Reed. At that time, the Ford was moving at a speed of approximately twenty miles per hour, and the Nash was moving at the same speed, if not faster. Defendant swerved to the right a little bit. The point of impact was about one foot east of the “middle line” of Reed and at the time and place of impact defendant’s Ford was practically stopped. The left front of the Ford hit the Nash.

Neither of the parties, plaintiff-appellant and defendant-respondent, questions the sufficiency of the evidence in supporting the submissions of the adversary claims, and the above abbreviated testimony of plaintiff and defendant is sufficient in illustrating the irreconcilability of their adverse and conflicting factual theories. And, since both and each of the parties made out her case, it was the jury’s province and function to resolve the conflicting factual issues in favor of one and against the other and this the jury did — in favor of defendant and against plaintiff, as we have stated. Now, since the trial court did not award a new trial, the judgment ensuing the verdict, but for this appeal, was final.

Herein upon appeal, plaintiff-appellant contends error of the trial court in giving defendant’s Instruction Nos. 2 and 5.

But, before we examine and decide the contentions made herein upon appeal, it is our duty to ascertain that this court has appellate jurisdiction of the cause.

The “monetary” effect of the judgment appealed from was to deny plaintiff, appellant herein, the relief she had sought, that is, a judgment in money amount $22,-550 in her favor and against defendant and to grant defendant, respondent herein, the relief she had sought, that is, a judgment in money amount $100 in her favor and against plaintiff. Although in this case and in other cases of like nature, only one or the other, a plaintiff or a defendant, can ever recover (Hoefel v. Hammel, Mo.App., 228 S.W.2d 402; Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507; Willibald Schaefer Co. v. Blanton Co., Mo.App., 264 S.W.2d 920; Hamilton Fire Ins. Co. v. Cervantes, Mo. App., 278 S.W.2d 20; Smith v. Rodick, Mo. App., 286 S.W.2d 73; Stonefield v. Flynn, Mo.App., 347 S.W.2d 472), nevertheless, in this case it is seen that, actually, the money amounts of the appellate-jurisdictional decisive “deny and grant” monetary impact upon appellant of the appealed-from judgment in defendant-respondent’s favor and against plaintiff-appellant are in aggregate amount $22,650. The Supreme Court of Missouri has exclusive appellate jurisdiction of the cause on the ground of the amount in dispute. Const.. Art. V, §§ 3 and 13, V.A.M.S.; § 477.040, RSMo 1959, V.A. M.S.

At defendant’s request the trial court gave Instruction No. 2, advising the jury concerning the standard of the highest degree of care as required of persons operating motor vehicles on the public highways of Missouri, as follows:

“The Court instructs the jury that under the law every person operating a motor vehicle on the public highways in the State of Missouri shall exercise the highest degree of care, that is to say, with the degree of care which a very careful and prudent person would exercise under the same or similar circumstances, and the Court further instructs the jury that the failure to exercise such care constitutes negligence on the part of any person so operating an automobile.”

And at defendant’s request the trial court gave the verdict-directing Instruction No. 5, submitting specific primary negligence of plaintiff in failing to yield the right of way, as follows:

“The Court instructs the jury that if you find and believe from the evidence that defendant was operating an automobile eastwardly on Hoffmeister Avenue in the exercise of the highest degree of care and that plaintiff was operating an automobile southwardly on Reed Avenue and was to the left of defendant, and if you find that both vehicles entered the intersection at approximately the same time and thereafter collided;
“And if you further find and believe, that when plaintiff was approaching said intersection plaintiff saw or in the exercise of the highest degree of care could have seen defendant approaching said intersection and knew or should have known that said vehicles would reach the intersection at about the same time, then the Court instructs you that it was the duty of plaintiff to yield the right of way to defendant;
“The Court further instructs you,, that if you find and believe that plaintiff in the exercise of the highest degree of care could have yielded the right of way to defendant but failed to do so, then the Court instructs you that plaintiff was negligent in operating her automobile;
“And if you find and believe, that the negligence, if any, of plaintiff directly caused the collision and the automobile operated by defendant to be damaged, then your verdict must be for defendant on her counterclaim against plaintiff, unless you find for plaintiff under Instruction No. 3.”

This case illustrates the hazard of prejudicial error in giving an instruction such as Instruction No. 2, abstractly advising the jury of and defining the standard of the highest degree of care of every person and the failure of the exercise of which highest degree of care as constituting “negligence” on the part of any person; this, without qualification by any reference whatsoever to the particular conduct, act or omission, the trial court by verdict-directing instructions is submitting as constituting some particular kind of negligence — -specific primary negligence, humanitarian-rule negligence, contributory negligence.

Under the humanitarian-rule submission, the jury was concerned with defendant’s duty, but only when and after the humanitarian rule seized upon the factual situation; and the jury was not at all concerned with plaintiff’s duty, because the plaintiff’s failure to exercise the highest degree of care in operating her motor vehicle would not defeat plaintiff’s recovery under plaintiff’s humanitarian-rule submis • sion. Hall v. Clark, Mo., 298 S.W.2d 344. We have said that under the humanitarian rule the cause of the injured person’s peril is immaterial (save, perhaps, when he voluntarily seeks injury). Grubbs v. Kansas City Public Service Co., 329 Mo. 390, 45 S.W.2d 71; Largo v. Bonadonna, Mo., 269 S.W.2d 879. The humanitarian rule exempts plaintiff from his own contributory negligence and correspondingly exempts defendant from liability for his primary or antecedent negligence. Largo v. Bonadon-na, supra, and cases therein cited.

Repeatedly it has been said that instructions stating abstract principles of law should not be given. Such instructions tend to confuse and mislead the jury. No one could know how the jury would apply said abstract principles of' law to the case at hand. Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674; Hall v. Clark, supra.

Instruction No. 2 was improper and should not have been given; but we shall look at the other instruction given in this case to see if, in our opinion, the giving of the instruction (No. 2) in the whole of the instructions given, was prejudicially erroneous in this case.

Defendant contends that the standard of care, the'failure to exercise which care constitutes negligence, as was the jury advised in Instruction No. 2, was pertinent to plaintiff’s primary conduct submitted in defendant’s Instructions Nos. 5 and 6 as specific primary negligence of plaintiff; and that the instructions given, considered as a whole, made clear to the jury that Instruction No. 2 was applicable only to the primary conduct of plaintiff in those instructions submitted as specific primary negligence of plaintiff.

The trial court in plaintiff’s behalf had given the verdict-directing Instruction No. 3 submitting to the jury defendant’s negligence under the humanitarian rule and by which, in its concluding clauses, the jury was told in effect that, if the jury found the humanitarian-rule facts as hypothesized in the instruction, “your verdict shall be in favor of the plaintiff and against the defendant and this is true even though you believe and find from the evidence that plaintiff herself was guilty of negligence in getting into the aforesaid position of imminent peril * * (Our emphasis.)

As noticed, the above-quoted verdict-directing Instruction No. 5, given in behalf of defendant, and submitting specific primary negligence of plaintiff, concludes with the clause “unless you find for plaintiff under Instruction No. 3.” (Our emphasis.) Also does Instruction No. 6, given in defendant’s behalf in submitting plaintiff’s primary negligence, specifically in failing to look out-laterally, conclude with the same clause as does Instruction 5.

It is not contended by plaintiff that Instruction No. 6 is in any respect erroneous. But plaintiff does contend that Instruction No. 5 is erroneous and prejudicially so, especially when read and considered together with Instruction No. 2, and to this contention we agree.

We have scrutinized the hypotheses in the first three paragraphs of the instruction (No. 5) and have noted that these three paragraphs hypothesize specific primary negligence of plaintiff; that the three paragraphs are not actually complete severally each in itself; and that the third and fourth paragraphs are linked by the conjunction “and.” Nevertheless, we have the opinion the “negligence” spoken of in the fourth paragraph is not, in the fourth paragraph, linked by clear reference to the “specific primary negligence” hypothesized in the preceding three paragraphs of the instruction.

The case of Venters v. Bunnell, 230 Mo.App. 1190, 93 S.W.2d 70, cited by defendant, is not helpful here.

It may be that the drafter of the instruction (No. 5) inadvertently left out some such word as “aforesaid” as qualifying the word "negligence” spoken of in the fourth paragraph. But, regardless of how the omission came about, the fact is that such a word isn't there. And the omission of some such word as “aforesaid” in qualifying the word "negligence” in the fourth paragraph brings into play and perverts the intended incidence and effect of the expression “if any” immediately after the word “negligence” in the fourth paragraph. .

We know the purpose of the expression “if any,” interposed in an instruction, is usually to make clear to a jury that some hypothesized fact preceding the expression “if any” is to be understood by the jury as submitted to the jury and not by the trial court assumed to be true; and no doubt this was the purpose of the drafter of Instruction No. 5. But the “negligence” spoken of in the fourth paragraph not clearly referring to the specific primary negligence hypothesized in the first three paragraphs, the expression “if any” in its setting in “negligence, if any, of plaintiff” readily could be interpreted by a juror, a layman of average intelligence, as meaning "any negligence of plaintiff.”

Of course the jury had read Instruction No. 2, which as stated speaks of the standard of the highest degree of care, the failure to exercise which highest degree of care constitutes negligence on the part of any person, and without any reference in the instruction to any kind of conduct specifically submitted as in the failure of the exercise of the highest degree of care and constituting causal negligence in the situation and in the circumstances of the case. In our opinion, the fault or error in Instruction No. 5 opened a wide vista for the jury’s view right through the sometimes-called “tail-end” clauses of Instructions 3, 5 and 6 and for another look at Instruction No. 2.

So it is, or so it seems to us, the jury’s view readily could have been confused and distorted into believing that they, the jurors, were to consider any kind of conduct, act or omission, of plaintiff — antecedent or primary or contributory, and whether or not specifically submitted, that they, the jurors, thought was in the failure to exercise the highest degree of care and which they, the jurors, thought should be decisive on the factual issues of causal negligence.

Plaintiff has made a contention of other error in giving Instruction No. 5. We shall not unnecessarily extend the length of this opinion by addressing ourselves to the contention. The contention may be considered by counsel, and the error, if so may be avoided upon a retrial.

The judgment should be reversed and the cause should be remanded.

It is so ordered.

Adopted as the opinion of the court en Banc.

STORCKMAN, DALTON, HOL-LINGSWORTH, HYDE, and HOLMAN, JJ-, concur.

EAGER, C. J., concurs in result.

Leedy, J., dissents in separate dissenting opinion to be filed.

LEEDY, Judge

(dissenting).

I do not agree that this court has (or should have) jurisdiction over this appeal, and I therefore dissent from the holding of the principal opinion on that question. In my view, the “amount in dispute,” for appellate monetary jurisdictional purposes, is presently, and can only be, the sum awarded respondent (defendant) on her counterclaim, to wit, $100.

The principal opinion concedes that in a case of this nature there can be no such thing as simultaneous recoveries by both parties, but only by one or the other (because proof of one claim necessarily disproves the other), and the seven cases the opinion cites in support of that proposition so hold. And, by the same token, it is apparent that on this appeal there cannot be a reversal as to plaintiff’s cause of action and simultaneously an affirmance as to defendant’s counterclaim, or vice versa. But the cited cases just referred to go further and declare the principle on which appellate jurisdiction in such cases (when dependent on the “amount in dispute”) is to be determined, i. e., it is fixed by the amount awarded the prevailing party, and not the aggregate of that sum and the amount prayed in the other action or counterclaim. This is the principal aspect of the cited cases, but even so the principal opinion does not mention the latter holding. Thus there is no express overruling of the cited cases, nor is it pointed out wherein they are in any respect erroneous. It says only this: “ [Nevertheless, in this case it is seen that, actually, the money amounts of the appellate-jurisdictional decisive ‘deny and grant’ monetary impact upon appellant of the appealed-from judgment in defendant-respondent’s favor and against plaintiff-appellant are in aggregate amount $22,650. The Supreme Court of Missouri has exclusive appellate jurisdiction of the cause on the ground of the amount in dispute. Const. Art. V, §§ 3 and 13, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.” To say that “* * in this case it is seen,” etc., (both italiciza-tions the present writer’s), and considering the context in which the italicized words appear, makes such language susceptible to an interpretation that it was used by way of differentiating the case at bar from the others.

The facts on which the counterclaim was based, if believed by the jury (as they were), constituted a complete defense to plaintiff’s cause of action, and in this situation the issues arising both on plaintiff’s cause of action and on defendant’s counterclaim were merged in and resolved by the verdict in defendant’s favor on the counterclaim. The question on this appeal, then, is whether or not the $100 judgment entered on that verdict should be reversed because of allegedly erroneous instructions given on behalf of the defendant, and to the prejudice of plaintiff. Under the merger-of-issues doctrine here applicable, before plaintiff in this case would be entitled to any relief in this court, she must first show error was committed in the obtention of that judgment. Unless defendant’s judgment is warrantably reversed, plaintiff’s cause of action need not be considered as such because any error going to it inheres in the judgment on the counterclaim and is reviewable on consideration of the latter. If, as here contended, the $100 judgment was obtained because of erroneous instructions, such error is reviewable on appeal by that appellate court whose jurisdiction embraces such a sum — ours does not. If this is not to continue to be the rule, then the cases to the contrary should be explicitly overruled, and the matter finally set at rest, and not left in doubt or uncertainty. For my own part, I believe the cited cases declare a fair and sensible rule for the solution of the problem of monetary jurisdiction in cases of this kind. Our dockets are crowded enough with cases where the amounts in dispute are genuinely in excess of $15,000, and should not be burdened with cases wherein the jurisdictional amounts are illusory.


author: HUNTER, Judge.

text:
    Fred ARBUCKLE, Appellant, v. FRUEHAUF TRAILER COMPANY, Respondent.
    No. 23758.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      Haskell Imes, Kansas City, for appellant.
    Michael J. Bogutski, Kansas City, for respondent.
   HUNTER, Judge.

Plaintiff, Fred Arbuckle, sued defendant, Fruehauf Trailer Company, for $5,000 compensatory and $5,000 punitive damages resulting from defendant’s failure and refusal to issue him a service letter although requested to do so. At the close of plaintiff’s case the trial court directed a verdict for defendant. After an unavailing motion for new trial, plaintiff appealed.

From the record before us and the briefs of counsel it is apparent that the sole issue on appeal is the proper construction of that portion of our service letter statute which we have italicized (Section 290.140, RSMo 1959, V.A.M.S.): “Whenever any employee of any corporation doing business in this state shall be discharged or voluntarily quit the service of such corporation, it shall be the duty of the superintendent or manager of said corporation, upon the written request of such employee to him, if such employee shall have been in the service of said corporation for a period of at least ninety days, to issue to such employee a letter, * *

It is the position of plaintiff that he adduced evidence from which the jury could properly find he had been in the service of defendant for the statutory period of at least ninety days, and it is defendant’s and the trial court’s position that plaintiff’s own testimony established that he had not been in the employment of defendant “for a period of at least ninety days, at the time of the discharge used as the basis of the service letter request.”

According to the evidence, plaintiff was first employed by defendant corporation on May 5, 1952, as a mechanic’s helper. He was promoted to a grade A mechanic almost four months later. He was having difficulty with his immediate supervisor, John Holton, who complained of the inefficiency of his work. About May 19, 1954, Holton told him, “You haven’t been very pleasing to me. I’m going to let you go.” Plaintiff filed a grievance through his Union and was off two weeks without pay. Apparently as a result of company-union arbitration, he was permitted to return to work büt as á grade B mechanic at IO5! an hour less than'his former pay rate.

On March 25, 1961, plaintiff was told by the company that he was “terminated” for alleged failure to put a patch in a trailer properly. On March 28, 1961, he filed a grievance through his union which had a collective bargaining agreement with defendant, complaining that he was unjustly discharged and should be returned to work without loss of seniority, wages or any other benefit. Defendant filed its answer to his grievance, claiming it was justified in terminating plaintiff for numerous acts of inefficiency and improper work. The result of the use of the grievance procedure for arbitration provided by the collective bargaining agreement was that plaintiff, who had been off work two weeks while the matter was under arbitration, was permitted to return to work without loss of seniority but was to lose 51}/£ hours’ pay for that time and was to be paid by the company for 28(4 hours for that time. (The arbitration report was not introduced in evidence.) Plaintiff and Holton shook hands, “everybody was satisfied” and plaintiff resumed work of the same kind as he had been doing previously.

This honeymoon between plaintiff and defendant lasted only a short time. On June 2, 1961, plaintiff was again terminated. He again filed a grievance, but after arbitration under the company-union contract, the discharge was upheld. His union advised him the company did not have to take him back.

On August 2, 1961, after being advised of the result of the arbitration, plaintiff wrote to the defendant requesting a service letter. The defendant received his request, but did not respond and did not provide the service letter.

It is the position of defendant that plaintiff’s discharge on June 2, 1961, occurred less than ninety days after his “discharge” on March 25, 1961, which was followed by his reemployment on April 10, 1961, and, therefore, he had not been in defendant’s employ “for a period of at least 90 days” when he was discharged “for the third and last time”, citing Barrows v. Riss and Company, 238 Mo.App. 334, 179 S.W.2d 473. and Ackerman v. Thompson, 356 Mo. 558, 202 S.W.2d 795, 797, as controlling.

In the Barrows case, supra, decided by this court in 1944, plaintiff, his own sole witness, testified, loc. cit. 474, “he was employed by defendant as a truck driver in interstate commerce from 1936 until April or May, 1940, when he was discharged for having violated an Interstate Commerce Commission rule prohibiting carrying passengers on the truck; that he was ‘off about three weeks; that he was then ‘reemployed’, ‘reinstated’; and that he was again discharged June 26, 1940.” After his discharge on June 26, 1940, he unavailingly demanded a service letter. This court held that the statutory “period of ninety days” meant a continuous employment of at least ninety days; that plaintiff had been discharged in April or May, 1940; that his “reinstatement” or “reemployment” meant only that he was put back into the same position from which removed; and that his employment hence was not continuous for a period of ninety days as contemplated by the service letter statute.

In the Ackerman case, supra, plaintiff, who had been employed by defendant continuously for many years “was cut off in a force reduction but worked extra as a brakeman between January, 1932, and June 1, 1935.” About the latter date he was notified he was cut off and that his services were no longer required due to the abandonment of a railroad line. He requested a service letter but was refused it. The Missouri Supreme Court ruled, 202 S.W.2d loc. cit. 797, “while plaintiff’s testimony revealed that in the last couple of years he was not called for work daily, still he held himself available for work when needed and did extra work when called. We hold this satisfies the requirement of the statute as construed by Barrows v. Riss & Co., [238] Mo.App. [334], 179 S.W.2d 473, that the specified ninety-day period of service has reference to a continuous employment of at least ninety days. Words are flexible. Although not working daily, there is no question but that plaintiff continued in the ‘service’ of defendant until he was discharged.”

Neither the Barrows case nor the Acker-man case ruled the precise question before us, and we deem it to be one of first impression.

In the instant case the evidence indicated defendant company as the employer had by written contract with the plaintiff’s union surrendered its otherwise complete right to discharge an employee with or without cause or reason, and had agreed it could discharge only for whatever cause the contract specified. This contract also set up an arbitration procedure for grievances filed and the results of the arbitration were apparently binding on the parties. It is, of course, the basic law that an employee who has a union to bargain in , his behalf and'who agrees to work and does work under the contract adopts that contract, as his contract of employment and is entitled to its benefits as well as its obligations. See, Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787.

While the testimony was that plaintiff was “discharged” or “fired” on March 25, 1951, and “reemployed” or reinstated on April 10, 1961, it is likewise clear from the evidence that this “discharge” was subject to plaintiff’s contractual right to file a grievance challenging the validity of the discharge as not being for a cause authorized by the contract.

There was testimony indicating the arbitrator held that an outright discharge of plaintiff was not justified but that plaintiff’s conduct was such that he should receive only partial pay for the time occupied by the arbitration and during which he did not actually work. It is noteworthy that plaintiff as a result of the arbitration did not lose his seniority over this incident. Nor did he seek employment elsewhere during the time he was pursuing his administrative remedy through the grievance and arbitration procedure under the contract.

As we view the matter when an employer by written contract with the employee’s union has given up its right to discharge an employee except for certain cause provided in the contract and has agreed in the contract to an arbitration procedure which, when exercised by an employee purportedly discharged, results, in an award to the effect that the employer did not have proper cause to discharge the employee, although there was sufficient cause to otherwise penalize the employee, the employee who has remained available for work and returns to work is not to be considered as “discharged” within the meaning of the service letter statute, and such employee “continues within the service of said corporation” from the time of the purported -discharge to the time' he is returned to work as a result of the arbitration proceedings.

The discharge by the company must be considered as a qualified or conditional discharge where the company has contracted that it may be reviewed through arbitration, and if it is upset or set aside through timely authorized arbitration it cannot serve as the basis for successfully claiming that an employee is not in the service of the corporation while he is pursuing his contractual administrative remedy for challenging it. Certainly where the arbitration of a discharge is timely and successfully pursued by an employee, there has been no final or effective discharge and the status of being “in the service of the corporation” is preserved. Cf. Cross Mountain Coal Co. v. Ault, 157 Tenn. 461, 9 S.W.2d 692; International Union of Operating Engineers, Local 564 v. Cox, S.C.Texas, 219 S.W.2d 787(8). The Ackerman case, supra, is authority for the fact that an employee does not have to work daily to be considered in the service of the corporation.

A contrary view, such as defendant urges, would be inequitable and unjust to an employee who was wrongfully discharged and whose discharge was set aside in accordance with the controlling labor contract between the parties. It is our view that the legislature did not intend the interpretation of the statute that defendant urges us to make and it is the intent of the legislature as expressed in the statute that controls. In ascertaining that intent it is our duty to give the statute a fair and rational meaning, having in mind its purpose.

The evidence indicates, and defendant tacitly concedes at least for the purpose of this appeal, that plaintiff made a submissible case in all respects other than the question we have just discussed and found not meritorious.

For the reason that the trial court erred in directing a verdict for defendant at the close of plaintiff’s evidence, the judgment is reversed and the cause is remanded for a new trial.

All concurring including HIGGINS, Special Judge.


author: MAUGHMER, Commissioner.

text:
    Cecil A. HAMMAN, Appellant, v. COOPERATIVE REFINERY ASSOCIATION, Respondent.
    No. 23793.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      Irving Achtenberg, Kansas City, for appellant.
    Keith Martin, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff, Cecil A. Hamman, asserts that he was the legal assignee and lawful owner of certain oil royalties or working interests amounting to $989.26, accruing to one William H. Bass, from August 1, 1958 to October 1, 1959, and held by defendant Cooperative Refinery Association; that defendant company refused to honor the assignment or pay any part of the funds to him, but rather paid same to the Internal Revenue Service of the United States in response to two levies served upon defendant by Internal Revenue against the interest of the said William H. Bass and dated July 30, 1959 and October 2, 1959. By this action plaintiff seeks recovery of the $989.-26 with interest.

Defendant admits it made the payments to Internal Revenue as alleged, but denies that plaintiff’s purported assignment was in and of itself a complete and legally effective transfer of the Bass funds, being held by the company, so as to authorize or even permit defendant to pay same to plaintiff. Defendant asserts further that a “Transfer Order” signed by both the buyer and the seller, that is, by both Hamman and Bass and delivered to defendant, is a prerequisite requirement, essential to a complete, valid and effective transfer of ownership.

A jury was waived and the cause was tried to the court upon a written Stipulation of Facts. The findings and judgment were for defendant and plaintiff has appealed. The Stipulation of Facts, together with the exhibits, reveals that in 1954, William H. Bass acquired the oil leases from which the disputed funds were derived, and contracted with defendant company to sell the oil production. Respecting defendant’s contention that a “Transfer Order” describing the interest and signed by both Buyer and Seller, was necessary to validly pass Bass’s interest, the written Stipulation of Facts, upon which the case was tried, contains the following: “These documents (Transfer Orders) are required by defendant in the regular course of business to transfer interests in leases”.

Various assignments, transfers and sales covering portions of the Bass interests were thereafter made. It is undisputed and the case was tried on the basis that proceeds totaling $989.26 accrued to the interest still held by Bass from August 1, 1958 to October 1, 1959. It was also agreed that Internal Revenue Service, on July 30, 1959, and again on October 2, 1959, levied against the interest of William H. Bass in said funds and that responsive thereto defendant paid to Internal Revenue Service $827.50 under the first levy and $161.76 under the second levy, in the total amount of $989.26.

It appears further that plaintiff and Bass were formerly partners, doing business as Bass and Hamman Oil Company, but on July 22, 1957, dissolved the partnership. Apparently as a part of this dissolution, Bass (and his wife) assigned to plaintiff Hamman, the Bass interest in the oil leases involved herein. As an indication that both Assignor Bass and Assignee Hamman understood that additional forms were required, or at least might be required, to convey the interest and transfer the right to receive payment, the Assignment carried this clause: “Bass further agrees to execute any and all departmental forms which may be necessary to effectuate the purposes of this Agreement”. By letter dated September 11, 1958, plaintiff’s attorneys informed defendant of the assignment, claimed the “overriding royalty” for Mr. Hamman, enclosed copy of the assignment and made this request: “Please cause transfer orders to be issued immediately”. While defendant presumably had “Transfer Order” forms available, manifestly it could not cause proper and effective “transfer orders to be issued” since signatures of both buyer and seller were required thereon. In any event, no Transfer Order was executed and delivered to defendant prior to its payment to Internal Revenue.

Possibly Bass refused to execute any further forms or possibly plaintiff was not fully satisfied with his title to the Bass oil interests. In any event, he instituted legal proceedings in Illinois, seeking by court decree to acquire the interests. Thereafter, on October 25, 1959 (after the date of the second government levy) Bass executed a document styled “Assignment of Overriding Royalty” by which he again conveyed his interest to plaintiff. This assignment recites :

“This Assignment shall be effective as of October 1, 1959 * * * and it is understood that the Internal Revenue has attached or has a lien against the impounded proceeds credited to the said Overriding Royalty Interest of the Assignors in leases aforesaid; it being the intent, purpose and meaning of this Assignment that the Assignee shall have the proceeds credited to said Overriding Royalty Interests which are impounded and which will hereafter accrue, exclusive of whatever proceeds the Internal Revenue Department has a prior lien against or has taken to its account”.

Then followed a statement that nothing in the Assignment shall prejudice Assignee’s claim against funds taken by Internal Revenue or against which it claims. It will be noted that the date on which this assignment was executed (October 25, 1959) was after the date of the last government levy (October 2, 1959). Subsequently, Transfer Orders were signed, delivered and payments thereafter made to Hamman.

Even those not directly engaged in the oil industry understand that royalties and overriding interests in oil leases are frequently split into fractional shares, re-split and are traded — bought and sold on a wide scale— somewhat like shares of corporate stock are traded, but mostly on an individual or over-the-counter basis. Because of this widespread and common trading practice, the producing company, seller of the oil, or holder of the funds, would be on dangerous ground if it were required, at its peril, to determine the validity and decide the equities involved in every sale, assignment or transfer of leasehold interests or fractional royalty shares. And if such companies were required to hold up disbursements pending the outcome of interpleader actions or other court determinations establishing legal ownership, the result would be interminable delay, numerous slowed up payments and great expense. To overcome, if not eliminate, such unhappy results, the practice and custom has arisen in the oil industry, that where there is such a sale by deed, assignment or otherwise, the company must be furnished with a Transfer Order, signed by both buyer and seller, before it is either authorized or required to pay to the transferee or assignee. The situation is similar to that arising when General Motors declares a dividend payable January 1 to “holders of record on December 20th”, where, even though the stock might have been assigned on December 15th, unless the transfer was effectuated on the books of the company or its transfer agent by December 20, the dividend would go to the assignor. The procedure as followed by the oil companies is described as follows by this court in Wood et al. v. White Eagle Oil & Refining Co., Mo.App., 274 S.W. 894, 895, 896:

“Intervener’s evidence further shows that the buyer of the oil upon taking over the production requires what is called a ‘division order’ to be signed by the owners of the oil. This division order is furnished by the buyer and contains a form for the name and correct description of the land. It requires that the royalty interest be specified in the order, together with the working interest, and is signed by the parties interested. When it is returned to the buying company, it is sent by it, with a complete abstract of title covering the property brought down to date, to the buyer’s attorney, who examines the abstract, and, if it is found that the division order corresponds with the title, the order is approved and payment for the oil purchased is made in accordance with the information contained in the division order. Thereafter if any one sells a part of his interest, it is required that the seller and purchaser sign what is called a ‘transfer order’ showing what interest has been transferred and thereafter payment of the oil is made in accordance with the division order as amended by the transfer order.” (Italics ours).

In our particular case Bass had furnished defendant with a transfer order under which payments had been made to him and he was fully familiar with the requirements. Plaintiff, as Bass’s partner and as one engaged in the oil industry, probably also knew about it. In addition, the written agreed Stipulation of Facts upon which the case was tried conceded: “These documents (transfer orders) are required by defendant in the regular course of business to transfer interests in leases”.

On appeal plaintiff takes the position that the assignment by Bass to plaintiff amounted to at least an equitable assignment, that defendant had actual notice thereof, that plaintiff’s claim had priority over the federal levies, and that at least defendant should have held the funds pending final judicial decision as to legal ownership.

We think there would be much merit in plaintiff’s position as applied to the usual instance of moneys being held by a stakeholder. But in this case plaintiff is confronted with the custom and practice of the oil industry. Even if he could successfully surmount that obstacle there is the Stipulation which he entered into which acknowledged that a transfer order is required to transfer the interest. There was no such transfer order and this, too, is admitted. That plaintiff knew the transfer of Bass’s interest to him was incomplete is indicated by (a) the provision in the first assignment for the execution of other “departmental forms”; (b) by the acknowledgment of the government lien in the second assignment; (c) by making the effective date of the second assignment October 1, 1959 and (d) by finally procuring the required Transfer Order.

We believe that the liens of Internal Revenue which became effective when the levies were made, were impressed upon funds which were standing in the name of Bass and which had not been effectively transferred by him, insofar as defendant company is concerned, to plaintiff or anyone else. Therefore, defendant company was not only justified in responding affirmatively to the government liens but was required to do so. We believe that in this situation, and particularly under this Stipulation as to Transfer Orders being a necessary prerequisite, it is unnecessary to go into the law of equitable assignment and discuss the cases cited by plaintiff on that question.

We find no error, concur with the findings of the trial court and the judgment is affirmed.

PER CURIAM.

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

All concur, including HIGGINS, Special Judge.

SPERRY, C., not sitting.


author: BROADDUS, Presiding Judge.

text:
    Nile L. SIPES and Mary Frances Sipes, Appellants, v. KANSAS CITY TITLE INSURANCE COMPANY, a Corporation, Respondent.
    No. 23862.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.
    Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellants.
    Thos. M. Sullivan, Downey, Abrams & Sullivan, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action wherein the plaintiffs sued upon a mortgagees’ policy of insurance and received a verdict in the trial court, which verdict was set aside by the trial judge, who then entered judgment for the defendant. Plaintiffs appealed.'

Respondent filed a motion to dismiss the appeal on the ground that appellants’ brief fails to comply with Supreme Court Rule 83.05, V.A.M.R. Although the motion is not without merit, we have concluded, in the exercise of our discretion, to overrule it.

While many matters are discussed in appellants’ brief the vital question in the case is a simple one. It arises from the following facts.

Appellants were the owners of the premises known as 1824 Agnes, Kansas City, Missouri. On November 24, 1956, they entered into a written contract to sell the property to one Amos Hindsman for the sum of $3750. The contract provided that “this sale is contingent upon the Robert Williams Real Estate Company selling a first mortgage loan. It is understood and agreed that the sellers are to receive a total of $1500. Also sellers are to receive a second mortgage note in the amount of $2250.” Pursuant to the above contract appellants conveyed the premises by warranty deed to Hindsman. Appellants were paid the sum of $1500 called for in the sales contract.

On December 17, 1956, respondent issued to appellants its mortgagees’ policy of insurance by the terms of which it insured appellants as owners of a deed of trust, dated December 17, 1956, executed by Amos Hindsman, given to secure the payment of a promissory note for the sum of $2250 against “loss” which appellants were to “sustain by reason of any defect in the execution of said deed of trust.”

Excluded from coverage under the policy was a first deed of trust dated December 17, 1956, executed by Amos Hindsman given to secure the payment of a promissory note for the sum of $3750.

Appellants’ petition alleges the issuance of the policy, recites its terms, and states “that there was a defect in the execution of said deed of trust and its note, in that the purported signatures of Amos Hinds-man thereto were not genuine” and by reason thereof appellants suffered loss and damage in the sum of $2250.

Default was made in the payment of the indebtedness described in the first deed of trust, and the property was sold on October 4, 1960, by the Sheriff of Jackson County, as substitute trustee under the deed of trust, to one E. L. Parker for the sum of $2000. The sale was properly advertised, and, insofar as the record discloses, Parker was an innocent purchaser.

Appellants’ loss did not come from any defect in the execution of the second deed of trust covered by the policy. It came about by reason of the foreclosure on the first deed of trust, which was excepted from coverage under the policy. Of that, there can be no doubt. This because under our system of deeds of trust, the trustee’s sale operates as a complete foreclosure and cuts off a second deed of trust as completely as if there had been a decree of foreclosure with all parties before the court. S. S. Kresge Co. v. Shankman, 240 Mo.App. 639, 212 S.W.2d 794, 801; Greene v. Spitzer, 343 Mo. 751, 123 S.W.2d 57, 60. Whether or not the second deed of trust was actually executed by Hindsman is immaterial. It was, as respondent says, “cut out” by the foreclosure sale.

Appellants not having sustained a loss which fell within the terms of the policy sued on, the trial court was right in entering judgment for respondent.

The judgment is affirmed.

All concur including HIGGINS, Special Judge.


author: WOLFE, Judge.

text:
    CITY OF JACKSON ex rel. Robert HOFFMEISTER and Louis A. Loos, d/b/a Loos & Hoffmeister, (Plaintiffs) Appellants, v. Howard LaCHANCE, Verla LaChance, Raymond Reiminger, Joan Reiminger and Jackson Savings and Loan Association, (Defendants) Respondents.
    No. 31469.
    St. Louis Court of Appeals. Missouri.
    Nov. 19, 1963.

      Buerkle & Lowes, Albert C. Lowes, Jackson, for appellants.
    Paul A. Mueller, Jr., Jackson, for respondents.
   WOLFE, Judge.

This is an action on a special tax bill for a street improvement. The plaintiffs sought to impose a tax on the whole of a lot in the City of Jackson, Missouri. Defendant LaChance claimed that he owned only a part of the lot, and defendant Reiminger made a like answer. The Jackson Savings and Loan Association asserted that their mortgage was only on the part owned by LaChance. LaChance claimed that he had paid the amount that he owed for the street improvement. The plaintiffs asserted by reply that LaChance and Reiminger had conspired to defraud them by transferring part of the property to LaChance so that they would not have to pay the full tax bill.

There was a finding and judgment by the court in favor of Howard LaChance and his wife and the defendant loan company. There was a finding against Reiminger and his wife as to the part of the tax on the portion of the lot that he claimed to own.

The facts of the matter are that prior to May 25, 1959, Reiminger owned all of Lot 14, Block 6 of Daley Heights Subdivision in Jackson, Missouri. The lot was located on the northwest corner of Rosamund Street and Corinne Street. Rosamund runs in a generally eastwardly and westwardly direction and is intersected by Corinne, which runs in a northwestwardly direction and forms a 52 degree angle with Rosamund Street at the point of intersection. Thus the lot in question is triangular in shape. It forms a right triangle. The street which was paved and for which the tax -bill was issued is Rosamund Street. The south side of the triangular lot extends along this street for a distance of 130.56 feet. The western boundary of the lot extends north-wardly at ,a right angle to its southern boundary on Rosamund Street for a distance of 160 feet and ends at the point where the western line of the lot touches the western side of Corinne Street. The east side of the triangle follows the western side of Corinne Street down to the point where Corinne Street intersects Rosamund. This line along Corinne Street is 204.48 feet in length, and forms the hypotenuse of the triangle.

The defendant Reiminger, who built and sold houses, had'built a house upon the lot in the year 1958. In February of 1959, there was a meeting at which the paving of Rosamund Street was discussed. Mr. Reiminger attended the meeting. Defendant LaChance, who was contemplating marriage in 1959, looked at Reiminger’s house and decided to buy it. As stated, Reimin-ger’s lot fronted 130.56 feet on Rosamund Street, which at that time was not paved. Reiminger did not ask LaChance to buy the whole lot, but instead sold him a rectangular piece of it fronting 60 feet on Rosamund and having a depth of 85.37 feet. This left title in Reiminger to a triangular portion fronting 70.56 feet on Rosamund and a somewhat smaller triangle, to the north of the piece sold to LaChance, fronting on Corinne Street.

The plaintiff contractors paved Rosa-mund Street in 1960, and by this action seek to collect a special tax bill for the work by having the tax levied as one charge on all of Lot 14, including the part owned by LaChance and the part owned by defendant Reiminger. The part owned by Reiminger is too small to build upon and could not be sold for a sum sufficient to satisfy the part of the tax chargeable to it alone, on a front footage basis.

There were meetings held to discuss the paving of Rosamund before LaChance bought the house and the rectangular portion of Lot 14 fronting for 60 feet on Rosa-mund. LaChance testified that the possibility of Rosamund being paved may have been mentioned to him before he bought the lot, but he had no recollection of it. He knew that it was unpaved, but many streets in Jackson were. He was not familiar with the neighborhood at the time he purchased the house, and he knew of no plans to pave Rosamund. He had no agreement with Reiminger other than the purchase of the house on a lot fronting 60 feet on Rosa-mund. He received his deed on May 25, 1959, and it was recorded on June 3, 1959. He financed his purchase through the Jackson Savings and Loan Association. Before Reiminger sold the lot to LaChance, he asked the city engineer to draw up the description to be put in the deed to LaChance, but the engineer said that he would not do it, and the description and deed were prepared by Reiminger’s attorney.

The city engineer and the plaintiffs who were the contractors knew that there had been a sale of a part of a lot to LaChance, and that the remaining portion fronting on Rosamund Street for 70.56 feet was not worth the amount that would be assessed against it for the paving. Because of this, when the city first advertised for bids, the plaintiff contractors offered no bid on the work. This publication was pursuant to an ordinance passed September 21, 1959. There were no other bids on the work, so the city engineer increased his estimate on the paving cost by taking into consideration the fact that some of the land fronting on Rosamund, including that part of the lot still in Reiminger’s name, was worthless. A new ordinance was passed on October 19, 1959, and the plaintiffs then bid on the paving, allowing for a loss on certain tax bills against worthless property, including Reiminger’s.

The city engineer had assured the plaintiff contractors that only one special tax bill would be issued on the whole of Lot 14, and at first only one was issued. The plaintiffs attempted to assign the tax bill to their bank, but the bank would not accept it. The plaintiffs then requested that two tax bills be issued, one against the part of the lot owned by LaChance, and the other against the part still owned by Reiminger. This was done, and LaChance paid the tax bill issued against his portion of the lot. Then another tax bill was issued covering the whole lot, and that is the one here in suit, and it was put in evidence. The suit seeks to credit the payment made by La-Chance, and have the part owing on the Reiminger property declared a lien upon the whole lot.

LaChance testified that after the argument arose over taxing all of the land as one parcel, Reiminger had told him that he would deed him the balance of the lot if he wanted it. He also testified that he had kept the grass cut on Reiminger’s property because the neighborhood children played there. He had a dog house and had planted some flowers on part of Reiminger’s property.

As stated, the court found for defendants LaChance and his wife and gave judgment for the plaintiffs only against the part of the lot owned by Reiminger and his wife. It is contended here that the trial court erred, in that it did not give “prima facie effect’’ to the tax bill put in evidence. We are cited to Section 88.854, V.A.M.S.1949, which in part provides: “The special tax bills shall, in any action thereon, be prima facie evidence of the regularity of the proceedings for the special assessment, of the validity of the bill, of the doing of the work and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill.”

The words “prime facie evidence” of course only mean such evidence which is in law sufficient to establish the fact, and if not rebutted it remains sufficient to support a judgment upon the fact so established. Here we have evidence that rebuts the prima facie evidence. If that evidence convincingly contradicts the recitations of the special tax bill, then the tax bill no longer establishes that which it purports to state. The essential evidence in rebuttal is fully set out above.

It is the further contention of the plaintiffs-appellants that the evidence does not rebut the tax bill, but instead shows a conspiracy between Reiminger and LaChance to evade the lien of the tax upon the entire lot. We are cited to Stifel v. Brown, 24 Mo.App. 102, which dealt with a situation wherein a strip of land, three feet in width, adjoining an improved street and extending the full length of the improvement, had been conveyed so that none of the lot sought to be charged fronted upon the improved street. The court held that this was an obvious sham to avoid collection of the tax bill against the whole lot.

A similar case, also cited, is Stumpe v. City of Washington, Mo.App., 54 S.W.2d 731. That case had to do with the transfer of a seven-foot strip to a member of the family. This strip extended for 66 feet along the improved street and was clearly an effort to evade having the bill taxed against the whole lot.

The transfer in both of the above cases is in no way similar to the sale made to LaChance. The transfer in those cases was made to exclude all of the valuable portion of the lot from all of the tax imposed.

One other case cited is Union Nat. Bank of Springfield v. Mobley, 228 Mo.App. 1235, 78 S.W.2d 512. The facts in that case, as to the land conveyed are slightly similar to the facts before us. There the land sought to be charged was a 16-acre tract extending for 2,452 feet along the improved street. A portion of the land extending for 125 feet along the street was devised by will to a daughter. A dwelling house and all other improvements of any value were upon the land devised to the daughter. She sought to have her land taxed separately from the whole tract. Her father did not die until after the ordinance to improve the street had been passed and the contract had been let for the improvement. The court held that the entire tract should be taxed as one.

The facts there were essentially different from those before us. Here a conspiracy is charged. It obviously takes at least two to conspire, and according to the testimony of LaChance he had only one interest in dealing with Reiminger, and that was to buy the 60-foot lot with a house on it. No ordinance had been passed to pave Rosamund at the time he made the purchase. The city engineer and the contractors knew, before the ordinance was passed, that the sale had been made to La-Chance. The contractors knew that the land left in Reiminger’s name was not worth the tax bill that would be assessed against it by reason of the improvement. They allowed for a loss on this stretch of the improvement when they made their bid. The city engineer had made a similar allowance in his estimate of the cost of the improvement. The contractors therefore suffered no loss by reason of the sale to LaChance. Neither was there any conspiracy proven, if LaChance was a credible witness. His credibility was for the trial court to determine. The transfer was a valid sale, openly made, prior to the ordinance, known to all parties concerned, and none of the parties to this action suffered any loss therefrom.

The judgment is affirmed.

RUDDY, P. J., and ANDERSON, J., concur.