text:
    ST. FRANCOIS COUNTY SAVINGS & LOAN ASSOCIATION, a Corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, Consisting of Smith B. Crowe, George W. Wise and Charles E. Cotes, and Division of Employment of Security, Defendants-Respondents.
    No. 24275.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.

      E. L. McClintock, Jr., Flat River, for appellant.
    Gordon P. Weir, Lloyd G. Poole, Jefferson City, for respondents.
   MAUGHMER, Commissioner.

The Industrial Commission of Missouri determined that the St. Francois County Savings & Loan Association, during at least ■twenty weeks of the 1962 calendar year had in its employment four individuals and therefore became an “employer” subject to the Missouri Employment Security Law, Chapter 288, V.A.M.S., 1959. The Association, defendant before the Commission and appellant here, properly sought and secured a judicial review of such decision by the Circuit Court of Cole County, Missouri. The circuit court affirmed and the Association has duly appealed to this court.

The actual facts are not really in dispute. The main controversy stems from the application of such facts and the legal conclusions which result. The Association, as the name implies, is a savings and loan corporation, operating in a smaller community with its offices in Farmington, Missouri. If it had four Individuals in its “employment” for at least a part of twenty weeks during the calendar year of 1962, it was an “employer” subject to the Employment Security Law, was Háble for the tax, and the decision of the Commission as affirmed by the circuit court was proper; otherwise it was not subject to the Act and the decision ought to be reversed.

It was established and is conceded that during 1962, the Association had three employees in full time and regular employment. Whether there was a fourth employee depends upon the status of Howard H. McCarty, company president and a director. For his services as director, Me-Carty was paid $25 per month, exactly the same as was received by each of the other five directors. Mr. McCarty, as president, was paid an additional $25 per month. He resides in Bonne Terre, Missouri, fourteen miles distant from Farmington. Once or twice each week Mr. McCarty drove to the company offices in Farmington and there in his capacity as president, (a) signed company checks. He said these checks were signed in blank, but that the signature of the company secretary was also required before the checks were issued; and (b) signed a supply of “Pass Books” on which the president’s signature was required. He sometimes discussed company affairs with Marie Niedert, who was the company secretary and office manager. He said it would have been possible for him to have completed the signings on the days of the directors’ meetings. Mr. McCarty was asked: “Is there anyone connected with the Association that has the right to tell you where to go and when to go, as far as you know?” His answer was: “No, not that I know of.” He said that he did “follow the vote of the Board.” Mr. McCarty was also one of the Association’s regular appraisers, whose duties included evaluating real estate offered as security for loans. He received $75 per year from the company as appraiser regardless of the number of appraisals made. In addition, each appraiser received a nominal fee for each appraisal, but this was paid by the individual loan applicants. Mr. McCarty performed no other services for the company nor did he receive any other or additional compensation. The Association’s quarterly returns to the Federal Government reporting deductions for its employees covering withholding of wages and deductions for Social Security did not list Mr. McCarty as an employee.

A deputy for the Division “determined administratively” that Mr. Howard H. McCarty “performed services for wages in ‘employment’ by * * * ” respondent. This finding was affirmed by the appeals referee on June 12, 1963. We quote in part from his finding:

“The evidence shows that Howard H. McCarty, as president, performed some service for the appellant in each week in the calendar year 1962 for which he was paid by the appellant at the rate of $25 a month. As a director he also received $25 a month from the appellant and as an appraiser he received $75 a year. As a director Howard H. McCarty was not an employee of the appellant. The evidence indicates that as an appraiser he was free from the appellant’s direction and control. However, as president, Howard H. McCarty was by law subject to the direction and control of the appellant’s Board of Directors, whether the Board chose to exercise its control over him or not. As president, Howard H. McCarty was an employee of the appellant.”

It is clear from this finding that respondent bases its conclusion that McCarty was in “employment” status solely by reason of his services as president and disclaims that his duties as appraiser or as a director brought him under any company “employment” within the meaning of the Act. On December 6, 1963, the respondent Industrial Commission of Missouri affirmed the decision of the referee and the Circuit Court of Cole County affirmed the Commission.

We are here presented with an appeal from the finding of an administrative tribunal. We are required to review the record in the light most favorable to the decision of the Commission and if there is substantial, competent and credible evidence upon which it could have reached the result it did reach, our duty is to affirm. We may not substitute our judgment under the facts for that of the Commission. We may not set aside such decision unless it is wholly unsupported by the evidence or is contrary to the overwhelming weight of the evidence, or is unauthorized by the law. Handley v. State of Missouri, Division of Employment Security et al., Mo.App., 387 S.W.2d 247; Union-May-Stern Co. v. Industrial Commission of Missouri et al., Mo.App., 273 S.W.2d 766; Christian Board of Publication v. Division of Employment Security, etc., Mo.App., 279 S.W.2d 55.

The Commission found that McCarty performed services for “wages” in “employment” and that appellant became an "employer” subject to the Missouri Employment Security Law. The three italicized words and their meaning are of vital importance. The Legislature has specifically defined their separate meanings as applied to and under the Act. We quote these definitions :

“ ‘Employer’ means:
“(1) Any employing unit which for some portion of a day, in each of twenty different calendar weeks, within either the current or the preceding calendar year, had in employment, but not necessarily simultaneously, four or more individuals (and for the purposes of this definition, if any week includes both December thirty-first and January first, the days up to January first shall be deemed one calendar week and the days beginning January first another such week) ; Sec. 288.032, V.A.M.S.
“ ‘Employment’ means:
“(1) Service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied, * * * Sec. 288.034, V.A.M.S.
“ ‘Wages’ defined.
“ ‘Wages’ means all remuneration payable or paid, for personal services including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash. * * * ” Sec. 288.036, V.A.M.S.

That the Legislature has the right and authority to define these words as applicable to this particular legislative field is indicated by this statement found in 81 C.J.S. Social Security and Public Welfare § 84, p. 127:

“Subject to constitutional limitations, the legislature has authority to specify what shall constitute employment or who shall be considered an employee, within the meaning of an unemployment compensation act, without being limited by the meaning given to the words under the common law and without regard to existing categories and definitions, * * *

Appellant in its brief says: “The only question presented is whether the decision of the Industrial Commission was supported by substantial and competent evidence.” The statute requires that four individuals be in employment status for at least a part of twenty different weeks during a calendar year. It is conceded that there were three such employees during 1962. The ultimate and only inquiry, therefore, diminishes to whether Howard H. McCarty was in “employment” by the corporation for the required period during 1962. Appellant invites our attention to Voss v. Merchants Dairy Co. et al., Mo.App., 373 S.W.2d 662, where the president, manager and half-owner of the corporation was held not to come under the Workmen’s Compensation Law, and to Durant v. Industrial Products Mfg. Co., 241 Mo.App. 266, 235 S.W.2d 574, where the court refused to apply a penal statute for undue delay in the payment of wages. The tests and definitions under those laws are not the same as under the Unemployment Security Law.

It is true that generally the higher officers of a corporation, especially directors, are distinguished from the usual workers or employees. In attempting to define the word “employer” we find this language in 56 C.J.S. Master and Servant § 1, pp. 26,27:

“The words ‘employer’ and ‘employee’ are correlative; and, except where superseded by statutory definí-tions, the common-law definitions of these terms still obtain. The term ‘employer’ is variously defined as one who employes, one who engages or keeps in service; one who uses or engages the services of other persons for pay; a person who has another in his employ to do certain things in a regular and successive way; * *

The Superior Court of New Jersey in Paramus Bathing Beach, Inc. v. Division of Employment Security, etc., 31 N.J.Super. 128, 105 A.2d 860, 862, considered whether company officers who rendered part time services to the company were in “employment” within the meaning of the New Jersey Unemployment Compensation Law. That Act, like ours, required that four or more individuals be in employment in each of twenty different weeks. The company had four officers, president, vice-president, secretary and treasurer. The company business was the operation of a bathing beach — a seasonal activity running from Decoration Day until Labor Day. The secretary and the treasurer were paid $200 per month for the entire year. The president and vice-president were paid $2,000 each, biannually. All four worked from Decoration Day until Labor Day in preparing the bathing beath for use and keeping it in operation. The president and vice-president also at all times operated their private businesses. It was ruled that all four were in “employment.” Speaking on the subject the court said:

“The statute defines ‘employment’ to mean service performed for remuneration or under any contract of hire (citing cases). The element of wage, price, or reward is inherent in the word ‘hire’, (citing case). In the particular with which we are here concerned, ‘employment’ imports the existence of a relationship intrinsically that of employer and employee with the normally affiliated compensation.
“We recognize that a corporation is a separate and independent entity, and that its officers are customarily its agents and servants under whose stimulus and dictation and through whose activities the corporate business is conducted (citing cases). Such an engagement in which the officer actively participates would seem to constitute the rendition of a service for and on behalf of the corporation. The intimation that the relationship of employer and employee cannot exist between a corporation .and its officers is unrealistic.”

It is our opinion, buttressed by the authorities and statutory definitions herein cited that: (1) company officers may be in “employment”; (2) such services may be only part time and (3) the compensation may be small and commensurate with part time work. The usual employment or the usual employer-employee relationship connotes some degree of control by the employer. In our particular case Mr. McCarty said that he conformed to the decisions of the Board. Moreover, company officers by statute, as to tenure, duties and compensation, are under control of the directors. Section 351.310, V.A.M.S., 1959.

Viewing the record before us in the light most favorable to the decision of the Commission, we are unable to say it is unsupported by substantial, credible evidence. We cannot say the finding that appellant had four individuals in “employment” within the meaning of the Act is unsupported by the evidence or is contrary to the overwhelming weight of the evidence or is unauthorized under the law.

The judgment is therefore affirmed.

SPERRY, C, concurs.

PER CURIAM:

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

All concur.


source: Caselaw Access Project

author: JAMES D. CLEMENS, Special Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Edward P. WEINHARDT and Florence A. Weinhardt, Petitioners-Appellants, v. LADUE PROFESSIONAL BUILDING, INC., a Corporation, and Jules Q. Strong, S. R. Kinsella, George Engelsmann, Jr., Creighton B. Calfee and Harry G. Glessow, constituting the Board of Adjustment of the City of Ladue, Respondents.
    No. 31991.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      F. Wm. McCalpin, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for petitioners-appellants.
    Edward D. Weakley, Boyle, Priest, Elliott & Weakley, St. Louis, for respondents.
    John H. Cunningham, Jr., St. Louis, amicus curiae, City of Ladue.
   JAMES D. CLEMENS, Special Judge.

This case concerns a parking problem. The relators Edward P. and Florence A. Weinhardt seek to bar the respondent La-due Professional Building, Inc., from erecting a medical office building on its vacant lot which adjoins theirs in the City of La-due. Initially, the City’s Building Commissioner declined a building permit because the building company had not provided enough off-street parking spaces. The building company appealed, and the City’s Board of -Zoning Adjustment reversed the commissioner’s denial, and the permit was granted. Relators Weinhardt then brought certiorari proceedings. On review, the Circuit Court considered the Board’s return, heard further evidence, and affirmed the Board’s order granting the building permit. The Weinhardts’ appeal to this court followed.

The issues raised here are these: Whether the evidence before the Board warranted it in granting the permit, either on the ground of compliance or hardship; the propriety of admitting new evidence in the Circuit Court; and the force of evidence that the Board heard unsworn testimony.

The lands under consideration here are three adjacent tracts lying between Clayton Road on the south and Conway Road on the north. The roads intersect at a sharp angle. At the eastern point is a tract owned by the Socony Mobil Oil Co. and leased to Robert French who operated a service station there. To the west of the service station is the proposed office building site of the respondent Ladue Professional Building, Inc. To the west of that is the land of the realtors Weinhardt on which they have a two-story building which houses their catering business and living quarters.

Section 7 of the City’s zoning ordinance requires that in this area an office building shall afford off-street parking space for one motor vehicle “ * * * for each two hundred (200) square feet of floor space in the building * * * ”, and that such parking space “ * * * shall be provided either on the lot or within three hundred (300) feet thereof * * It seems that in the past the City’s Building Commissioner had granted permits for commercial buildings where the number of required parking spaces was computed on the amount of rentable floor space in the building rather than on the amount of gross floor space. Accordingly, the respondents’ architects drew plans for the office building with a parking area for 42 cars. Using the rentable floor space as a basis for the computation, this would have been enough. However, using the gross floor space as a basis, there would have to be at least eight more parking spaces. After the building commissioner denied the permit, the respondent building company made arrangements with the lessee of the adjoining service station to rent parking space on his lot to park twelve additional cars, thus affording off-street parking for 54 cars.

With the problem in this posture, the respondent building company appealed to the City’s Board of Zoning Adjustment. It claimed error in denial of the permit on the ground of inadequate parking space. Alternatively, it claimed that the denial of the permit on this ground imposed unusual difficulties and a particular hardship. This on the basis of § 89.090, Subd. 1(3), V.A. M.S., and § 15(7) of the City’s zoning ordinance which empower the Board to grant a variance in such cases. The Board gave proper notice of a hearing on the respondents’ appeal. In its subsequent return to the writ of certiorari, the Board included the duly certified minutes of its meeting at which the appeal was considered.

Because it was the Board’s return that was the proper subject of the review in the Circuit Court, we must refer to and quote from it rather fully: Among those present at the hearing were Messrs. Strong, chairman, and Kinsella, Engelsmann, Calfee and Giessow, members of the Board, and the City’s building commissioner Farrar and building inspector Bockhorst. Also present were the building company’s architects and its attorney, Mr. Edward D. Weakley, and the respondents Weinhardt. Chairman Strong announced that the purpose of the hearing was the building company’s appeal from the denial of its permit because of the minimum parking space requirements. The rest of the return is set out in full:

“Mr. Weakley stated that in August of 1962, plans were submitted for the construction of an office building, the proposed location being to the east of Weinhardt’s Catering Company at Conway and Clayton Road. There was a discussion of the proposed building by Gale and Cannon, Architects with the officials of the City of Ladue, at which time various matters were discussed, and subject to several small changes, they were informed that the. plans would be all right and the plans were altered and redesigned. That in August of 1962 the Architect’s, in a conference with Mr. Bockhorst, it was stated that the parking lot requirements are computed on the basis of the rentable space; that it is comparable to the Fischer Building next to Sir John’s Den on Clayton Road. Based on this, they computed the 42 parking spaces under the terms of Section 7 of the Zoning Ordinance. They were then informed that they were some eight parking spaces short. Mr. Weak-ley further noted that the entrance to the building will be on Clayton Road and the exit will be on Conway Road; that with the refusal to issue a permit, they contracted with the Mobil Oil Station operator for 12 additional parking spaces. Mr. Weakley stated that (1) they have conformed to the requirements, in that they have computed the parking area based on the net rentable space; (2) if the Board does not accept it, they cannot build it; that the Zoning Ordinance does not spell it out; that with respect to the type of building involved, it is strictly doctors and dentists who will occupy it; it will be a convenience to the residents of the City of Ladue; that the additional parking spaces brings them in compliance with the provisions of the Zoning Ordinance; that the financing was obtained from the Prudential Savings and Loan Association for 75% of the total cost of the building and the remaining 25% was put up by Mr. Niedringhaus and Mr. Karl M. Block, who are both residents of the City of Ladue. That there has been $3,750.-00 put up in points, should this building not be built and if they do not get relief of these eight parking spaces, they will be out of business. Mr. Weakley then presented a tentative lease between the Ladue Professional Building and Mr. Storie, leasee of the Mobil Service Station for 12 additional parking spaces, stating that Mr. Storie was not the owner but that he has the right to do what he wants to do. Mr. Strong noted that it would remain only in effect for as long as Mr. Storie was there and that it was not a very definite time, only eight years. Mr. Weakley further stated that it was a Permissive Lease; that they would pay $8.00 per slot per month. Mr. Weakley further stated that the ordinance does not state clearly what it means. Mr. Strong then read Section 7 of the City’s Zoning Ordinance No. 282, noting that the additional parking on the Mobil property would not be a violation; that it provides for parking either on the lot or within 300 feet thereof; that the parking space shall be adequate to accommodate one (1) car for each two hundred (200) feet of floor space, therefore they computed 42 car spaces. Mr. Weakley further added that the rentable space is 8,393 square feet and the gross square feet is 9,993.49 square feet, leaving a difference of 1600 square feet. Mr. Giessow asked what the position of the building will be with relation to the lot? Mr. Gale presented a model of the building, noting that the building will be approximately 43 feet from Clayton Road, also adding that the position of the building as it is shown on the model was made to scale. That the gross square feet included the halls, toilets, stairways and entrance lobby. Mr. Strong asked what part of the 1600 square feet includes the halls, toilets, etc.? Mr. Cannon figured it to be as follows: 816 square feet for corridors, 294 square feet for stair wells, 158 square feet for mechanical equipment, 110 square feet for entrance lobby and 215 square feet for rest rooms. Mr. Giessow asked if there was going to be landscaping? Mr. Gale answered that it would be exactly as it was shown on the model and estimated the cost at $2,000.00 for landscaping. Mr. Strong asked Mr. Farrar how they had computed the parking spaces on previous buildings? Mr. Bockhorst Stated that they had computed it on the net floor space, and that this is the second time this question has come up, the first being the Lammert Furniture Company. Mr. Strong noted that in regards to the Lammert Furniture Company, they had divided up some of the parking spaces. Mr. Bockhorst noted that the City of St. Louis required a minimum of 8 feet for each parking lane. Mr. Strong asked how many doctors or dentists would occupy the building? Mr. Weakley stated that there would be around eight but no more than ten. That their office hours would be staggered and that there would be six parking spaces for each doctor or dentist. Mr. Strong asked Mr. Weinhardt if he had any questions? Mr. Wein-hardt stated that he now has trouble with the people parking on his lot and that this would add to his problem. Mr. Cannon noted that the driveway of the proposed building adjoins Mr. Weinhardt’s west property line; that there is going to be an automatic barrier because there is going to be an approximate four foot drop and the cars would be below his property line. Mr. Weinhardt asked if they would be parking on any part of the City’s property? (shoulder of road). Mr. Weakley stated that there is a ten foot road easement which is dedicated for public use which can be found in the plat books in the County; that there will be no parking on the road easement, such as at Sir John’s Den and the shopping center on Clayton Road; that there would he no parking on Clayton Road and that there is an adequate number of parking spaces.
“It was moved by Mr. Kinsella, seconded by Mr. Giessow and unanimously carried that the appeal of the Ladue Professional Building, Incorporated based on the petition and appeal be granted and relief be given to allow parking spaces for cars of not less than the eight spaces lacking based on providing parking spaces on the basis of the over all floor area rather than the rentable area according to the plans submitted, or approximately 42 cars rather than the 50 cars required by the City’s Zoning Ordinance.”

Upon submission of the case in the Circuit Court it was taken under advisement, and later the trial court filed its findings and judgment. It construed the Board’s ruling as granting the permit on the ground of alleviating hardship, concurred in that finding, and affirmed the Board’s decision. The relators’ appeal to this court followed.

The purpose of this writ of certiorari was to test the legality of the Board’s order. State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030(6); Cunningham v. Leimkuehler, Mo.App., 276 S.W.2d 633(3). The Board’s order specifically granted the building company’s appeal and by clear implication granted it the relief it prayed, the building permit. We consider the Board’s order in light of the principle that quasi-judicial bodies cannot be expected to phrase their orders in the precise terminology courts strive for. Himmel v. Leimkuehler, Mo.App., 329 S.W.2d 264(5). So considered, we can construe it as granting the permit on either or both the grounds of compliance with the ordinance by affording the additional parking spaces, or particular hardship. It said: “It was moved by Mr. Kinsella, seconded by Mr. Giessow and unanimously carried that the appeal of the Ladue Professional Building, Incorporated based on the petition and appeal be granted and relief be given to allow parking spaces for cars, of not less than the eight spaces lacking based on providing parking spaces on the basis of the over all floor area rather than the rentable area according to the plans submitted, or approximately 42 cars rather-than the 50 cars required by the City’s Zoning Ordinance.” Although the order was ambiguous as to the basis for its conclusion, the basis is not of legal significance to us. At page 1129 of 101 C.J.S. Zoning § 327, it is said: “ * * * If the conclusion of the board is correct, it will not be set aside because the reason given therefor is wrong.” As held in Donelson v. Board of Zoning Adjustment of City of St. Joseph, Mo.App., 368 S.W.2d 728(5), the force of a judgment does not reside in its recitals, but in the mandatory or decretal portion which adjudicates the issue. So, if the Board’s order granting the permit can be sustained on either ground, or on any ground for that matter, it should be upheld. We have concluded that the record warrants the Board’s decision on the ground that the respondent building company did comply with the minimum parking space requirements of the zoning ordinance.

To show compliance with the requirement of off-street parking, the respondent building company produced evidence before the Board that the rentable floor space of respondent’s building was 8,393 square feet, which would require 42 parking spaces, and that the gross floor space was 9,993.49 square feet, which would require 50 parking spaces. The evidence before the Board was that the respondent building company had rented 12 additional parking spaces on the adjoining lot. § 7 of the ordinance required only that the required number of parking spaces “ * * * shall be provided, either on the lot or within three hundred (300) feet thereof * * At the circuit court hearing the relators Weinhardt had evidence that the area computed on the basis of external measurements was 11,400 square feet, which would require 57 parking spaces. Even if we consider that evidence, it would not help the relators. They contend that floor space must be determined by the building’s external measurements, citing Reiser v. Meyer, Mo.App., 323 S.W.2d 514(4). Suffice it to say that that case does not so hold. We hold here that the evidence before the Board warranted it in finding that the respondent building company was required to have 50 available parking spaces and did in fact have 54 such spaces. So, the Board could properly grant the permit on the ground of compliance with the zoning ordinance. It would be a mere exercise in obiter dicta for us to discuss the merits of the further issue of whether the Board also had authority to grant a variance on the ground of hardship. We will not do so.

The relators not only contend that the permit should have been denied because the external measurements of the building resulted in a calculation of 11,400 feet, but further strive to persuade us that the permit should be denied because the building exceeded the maximum height of 35 feet. Both contentions are based on relators’ evidence produced not at the hearing before the Board, but brought up later at the trial in the Circuit Court, over the respondent building company’s objection. We must determine the force and effect of this Circuit Court testimony. We do so in the light of two long standing principles. At common law, certiorari proceedings are not heard de novo and the reviewing court does not weigh the evidence, but deals only with questions of law that appear on the face of the record. See State ex rel. Miller v. O’Malley, 342 Mo. 641, 117 S.W.2d 319(1). And, when the review is statutory as here, the court’s jurisdiction is further limited to that granted by the statute. State ex rel. Nigro v. Kansas City et al., 325 Mo. 95, 27 S.W.2d 1030(4). The statute providing for review of city zoning orders by certiorari is § 89.110, V.A.M.S. It authorizes circuit courts to issue writs of certiorari and says: “ * * * If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence * * We do not think this was meant to change the nature of the hearing from one of review to one de novo on the merits. Instead, we think it was intended only to allow further evidence that touches upon the procedural legality of the hearing before the Board. Comparable review statutes have been so construed. See State ex rel. Beacon Court, Inc. v. Wind, Mo.App., 309 S.W.2d 663(3), applying § 64.120, V.A.M.S. to reviews of decisions of zoning boards in Class One counties; and State ex rel. Horn v. Randall, Mo.App., 275 S.W.2d 758(3), applying § 536.140(4), V.A.M.S., to reviews of decisions of administrative agencies. This testimony offered by relators in the Circuit Court dealt with the merit- of the case on which the Board had ruled, not with the procedural legality of the Board’s hearing. The respondents’ objection to the testimony should have been sustained, and we will disregard the testimony.

We refer again to the relators’ last point that the Circuit Court erred in not reversing the Board’s order because the proposed building violated the maximum height provision of the zoning ordinance. In their first amended petition for the writ of certiorari to review the Board’s order, the relators for the first time claimed that the Board had erroneously granted the permit because the building violated Section 12 of the zoning ordinance prohibiting buildings over 35 feet high. At the trial in the Circuit Court, over respondents’ objections, which we have ruled were valid, the relators introduced evidence of the ordinance and that the building was 41 feet and 3 inches high. Respondent countered this by showing that § 14 of the zoning ordinance excepted mechanical appurtenances in computing the height of buildings, and showed that the upper eight feet was housing for mechanical equipment for the building’s elevator and air-conditioning equipment. The Circuit Court found this issue in favor of the respondent building company, and relators now claim it erred. The Circuit Court could well have declined to rule the point.

The scope of review from the Board’s order is strictly limited. As said in State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030, l. c. 1033(5, 6):

“The review of a decision of a board of zoning appeals by the circuit court being purely statutory, the court’s jurisdiction in such proceeding does not extend beyond that conferred by the statute. Looking to the statute it is apparent that the court is not vested with the power to supervise the discretion lodged with a board of zoning appeals ; it is not authorized to entertain a hearing de novo and then make such order as in its opinion the board should have made. * * * ”

The “Johnny-come-lately” claim of illegality of building height was not presented to, considered by, nor ruled on by the Board. And, as previously ruled herein, in the Circuit Court evidence is limited to issues of procedural legality, and may not extend to the merits of the case. In the case of Bourke v. Foster, Mo.App., 343 S.W.2d 208 (4) the court declined to consider such an extraneous issue, saying: “* * * To assume such power would really be hearing the matter de novo, exercising our own discretion and usurping the functions of the Board, rather than applying the statutory procedure of review. Neither we nor the circuit court can review a matter unless it was first presented to and passed upon by the Zoning Board and then only if the alleged injured party appeals. * * * ” So, we must decline to review the point.

For their final point, the relators Weinhardt now claim that witnesses who appeared before the Board were not sworn, and argue that there was therefore no evidence before the Board to support its order granting the permit. This is the very kind of evidence that is admissible at the trial in the Circuit Court. It goes not to the merits of the case heard by the Board, but is an attack upon the procedural regularity of the Board’s hearing. However, the relators did not plead such a defect in their petition, and did not offer evidence thereof at the trial in the Circuit Court. It was first broached at a hearing on relators’ after-trial motion. The relators’ contention here cannot stand, for a combination of reasons: There was no appropriate objection made by relators at the hearing before the Board. In their petitions for the writ of certiorari the relators challenged only the merits of the Board’s ruling, not its procedural regularity. At the trial, no point was raised as to the propriety of the hearing, and the relators themselves introduced into evidence the minutes of the Board’s hearing. Further, on this appeal the rela-tors’ Points Relied On do not comply with V.A.M.R. 83.05(e) by stating what action or ruling of the trial court is now claimed to be erroneous. So, the point now argued must be ruled against the relators.

We conclude that the judgment should be affirmed. It is so ordered.

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


author: DOUGLAS W. GREENE, Special Judge.

text:
    David Lee CISSELL, Plaintiff-Respondent, v. Curtis BROSTRON, Chief, St. Louis Metropolitan Police Department, and Andrew Aylward, Major, in charge of Bureau of Services, St. Louis Metropolitan Police Department, Defendants-Appellants.
    No. 31383.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      Thomas J. Neenan, City Counselor of City of St. Louis, Eugene P. Freeman, Associate City Counselor, Conway B. Briscoe, Jr., Asst. City Counselor, St. Louis, for defendants-appellants.
    Gruenberg, Schobel & Souders, John M. Schobel, St. Louis, for plaintiff-respondent.
   DOUGLAS W. GREENE, Special Judge.

This case is an appeal from an order entered on June 7, 1962, by the trial court, enjoining the defendants (hereinafter referred to as appellants) from disseminating to any person or agency, including law enforcement agencies, any and all police reports, records, fingerprints, photographs and other documents which may be in their possession as the result of the arrest and investigation of the plaintiff (hereinafter referred to as respondent), on or about July 19, 1957, and to physically remove from the active files and the record division files of the St. Louis Metropolitan Police Department all of such records and reports and to place them in a private file which was not to be for disclosure.

The interesting facts that are the basis for this action are as follows: On July 19, 1957, respondent, David Lee Cissell, was arrested by officers of the St. Louis Metropolitan Police Department on suspicion of murder and robbery. At about 2:20 a. m. on that date, one Harry Wood, a customer in a restaurant on North Grand Boulevard was shot to death by a man attempting to rob one William Meadows, who was a cook in the restaurant. Wood was attempting to prevent the holdup, and struck the robber with an iron pipe. The robber then shot Wood in the chest, inflicting a wound of which he later died, and then fled. Witnesses, who heard the shots, said the killer fled in a blue and white car with the chrome taken off the front to give it a custom look, and that he was wearing a vivid colored striped sport shirt.

At 2:40 a. m. respondent was arrested on Grand Avenue some distance north of the restaurant. He was driving a blue and white 1955 Plymouth with the chrome taken off the front, and he was wearing a vivid colored striped sport shirt. The arresting officers took respondent back to the restaurant where Meadows identified him as the holdup man. Respondent was thereafter indicted for first degree murder. He subsequently produced witnesses who testified that he was in Riverview Gardens, a St. Louis suburb, only a few minutes before the shooting, and could not have been at the scene of the crime at the time it was committed, and further investigation proved that the person who identified respondent as the killer had a history of mental illness, and was not a reliable witness. The prosecuting attorney then dismissed the murder charge against respondent. Respondent made bond shortly after his arraignment, and returned to work at the company where he was employed on the date of his arrest. He kept his job, until the fall of 1959, when he went on strike along with other workers, and was replaced on the job. In December of 1959, respondent applied for a job with the American National Insurance Company. He was interviewed for a job, and was asked to fill out an application. He stated on the application that he had been arrested, and submitted a story Front Page Detective magazine had written about his case to explain the circumstances. He did not hear further from the company regarding his application.

Respondent then applied to the Metropolitan Life Insurance Company, and before starting to fill out a job application form, told their personnel man the details of the arrest in question. He was told that there would be no sense in filling out the application. Respondent also filled out a job application form at McDonnell Aircraft. He listed the arrest in question on the application, and never heard from them. The events of the robbery and murder, the arrest of the respondent,- and the eventual dismissal of charges against him were given prominent press coverage, including a feature story in one of the metropolitan newspapers. There was no evidence that appellants, or the St. Louis Metropolitan Police Department had ever released the records of the case, or any information concerning them, to anyone. On the contrary, the evidence indicated that respondent had publicized the facts himself in interviews with newspaper men and detective story writers.

The trial court, before deciding the case, stated that the purpose of its intended order was to permit respondent to state on any job applications that he might fill out, that he had never been arrested.

Appellants raise only two points on appeal. First, that the trial court abused its discretion in entering the order in question since respondent failed to prove, as he had pleaded, that retention of the records in question interfered with or damaged respondent’s employment or property rights, and, second, that the trial court abused its discretion in rendering its decree and judgment enjoining the defendants, in their official capacities, from the proper performance of their duties, of directing and controlling the continuing investigation of the murder and robbery in question, through suppression of the entire documentary historical record of the activities of the police department in connection therewith.

Regarding appellants’ first point raised on appeal, paragraphs 11 and 12 of respondent’s petition are the only pleadings that allege wrongdoing on the part of appellants. They read as follows:

“11. The fingerprints, photographs and other records of plaintiff on file with the said Police Department have interfered with and prohibited plaintiff in his pursuit of gainful employment. Plaintiff has been denied employment by prospective employers because of the retention of these records by defendants in the files of the said Police Department.
“12. Because of the actions of defendants in retaining said fingerprints, photographs and other records of plaintiff, plaintiff has suffered and will continue to suffer irreparable damage to his property rights and said action of defendants constitutes an infringement of and deprivation to plaintiff of the rights guaranteed to him by the Constitution of the State of Missouri.”

There was no evidence offered in the trial court tending to show that the records of the case were ever shown to any prospective employer, or that any prospective employer relied on, or had access to, such records. In short, there was no proof connecting respondent’s denial of employment with the records concerning him admittedly kept by the police department. There was no proof that the records in question were ever disseminated to anyone, or that there was a threat of future dissemination (with the exception that such records are sent to the state highway patrol pursuant to state statute.)

There was no proof that the keeping of such records by the police department caused respondent damage, or interfered with his pursuit of gainful employment.

In determining the issues here, we are guided by several elemental legal principles. The purpose of an injunction is to restrain actual or threatened acts which constitute a real injury, and is to be used sparingly and in clear cases only. The decree is to be framed as to afford the relief to which the complainant is entitled, and not to interfere with legitimate and proper action on the part of those against whom it is directed. Henson v. Payne, Mo.App., 302 S.W.2d 44. In addition, the decree must conform not only to the evidence, but to the pleadings. Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353; Murr v. Maxwell, Mo.App., 232 S.W.2d 219.

Under the pleadings, the ultimate questions for determination were: Did the retention of respondent’s fingerprints, photographs and other records by the police department interfere with respondent in the pursuit of employment to his damage, and was respondent denied employment by reason of such retention.

A careful examination of the transcript does not disclose one iota of evidence to sustain such theories, and we therefore agree appellants’ first point is well taken.

As to appellants’ second point, it is evident from the record that the trial court entertained the view that through the device of an equitable decree, the fact that respondent had been arrested could be “obliterated” from the public realm, if the police investigational record was somehow given, a judicial status of non-existence, and, thus give judicial sanction for the respondent to misrepresent the truth in connection with his employment efforts, i. e., to hide from prospective employers the fact that he had been arrested.

This cannot be done for several reasons. First, defendant was arrested, and was indicted, on the charge of first degree murder. Nothing that this court, or any court, could do would change such facts, regrettable as respondent feels they are. As is said in the words of the Prophet: “The moving finger writes, and having writ moves on, nor all your piety or wit, can lure it back to cancel half a line, nor all your tears wash out a word of it.” Rubaiyat of Omar Khayyam, Verse 71. The purpose of an injunction is not to provide a remedy for past wrongs, but is to prevent future wrongdoing. Eichelsbach v. Harding, Mo.App., 309 S.W.2d 681.

Second, there is no evidence that appellants have disseminated, or threatened to disseminate respondent’s photograph, fingerprints, and records to the general public, or to place them in a “rogues gallery.” Therefore, such questions as the right of privacy of an individual in such situations, as discussed in State ex rel. Reed v. Harris, 348 Mo. 426, 153 S.W.2d 834, and related cases, are not germane to the pleaded and proved issues here. While this is an interesting subject, it is dehors the recofd, and precedent established by judicial pronouncement on such matters, many times results in the erection of a legal cross upon which judges, litigants and lawyers are later hung.

Third, any contemplated use of such records by the St. Louis Metropolitan Police Department, and other law enforcement agencies, in a continuing investigation of an unsolved murder would be justified by common sense. Such records contain many details, reports, statements, photographs, and other investigation aids in addition to respondent’s record of arrest, and to deny their use in such manner would effectively tie the hands of the police, while affording respondent no real relief.

For the foregoing reasons the judgment is reversed, and the cause remanded with directions to enter judgment for the appellants.

WOLFE, P. J., and ANDERSON, J., concur.

RUDDY, J., not participating.


author: DAVIS, Commissioner. MONTGOMERY, Judge.

text:
    Albert HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Rehearing Denied June 25, 1965.
    Further Rehearing Denied Oct. 22, 1965.

      M. C. Redwine, Jr., Winchester, John Y. Brown, Wm. H. McCann, Brown, Sledd & McCann, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant was charged with the murder of Marcus Lee Aldridge; he was convicted of voluntary manslaughter and sentenced to imprisonment for ten years. KRS 435.-010; 435.020. On this appeal he advances four grounds as bases for reversal: (1) the trial court should have directed a verdict of acquittal at the close of all the evidence, (2) the trial court erred in admitting pictures of the victim’s body, (3) the court erred in permitting improper rebuttal evidence, and (4) appellant’s right to fair trial was violated because the county attorney called the defense witnesses before a grand jury for the purpose of preparing for the trial of the pending indictment.

Just before 6:00 a. m. on May 27, 1963, the Clark County sheriff received a telephone call from Earl Hatton (a man who lived at appellant’s home and who was jointly indicted with him for the homicide here involved). Hatton told the sheriff that he, Hatton, had shot Aldridge.

The sheriff promptly responded to the call. When he arrived at appellant’s rural home he found Aldridge’s dead body lying in the kitchen of the farm house; the feet of the body were at the door, leading from the kitchen; the body was upon its back, and in such position to suggest that Al-dridge had been facing the door when shot, and had fallen backward upon the kitchen floor.

The sheriff observed a butcher knife lying near the outstretched right hand of Aldridge’s body; he also noted a .22 caliber semi-automatic rifle on a kitchen table in the same room.

When the sheriff arrived at the scene there were five persons present: the appellant and his wife, Marie; Earl Hatton and “Sherlock” Fuller; and a small child of appellant. At that time Hatton reiterated that he had shot Aldridge with the rifle; he asserted that he had had to do so in order to protect himself from Aldridge’s effort to assault him with the butcher knife. According to the version that Hatton then related, there was no one else present in the kitchen when the shooting occurred.

Appellant and his wife confirmed to the sheriff that they had been abed, asleep, when the shooting occurred, but that they had been aroused by the sounds of the shooting. “Sherlock” Fuller, according to everyone’s account, was asleep on a couch in a front room when the killing took place. Fuller had previously been convicted of perjury; the consequent incompetency as a witness precluded any evidence from him. KRS 421.090.

The evidence reveals without dispute that no wound was visible upon Aldridge’s body as the body lay on its back. However, when the deputy coroner arrived he examined the body and reported finding four bullet wounds; three of the wounds were in the upper portion of the right arm, entering fiom the rear; the fatal wound was in the back, just below the shoulder blade. The latter bullet pierced the lung and produced massive hemorrhage from which Aldridge died. Aldridge was dead when the deputy coroner arrived at about 6:20 a. m.; he estimated that death had occurred “maybe 25 to 30 minutes” earlier. '' '

Before the body was moved, the sheriff caused photographs of it to be made; these were made by Floyd Hall, who was Chief of Police of Winchester at the time of the homicide, but who was a deputy sheriff when the trial of appellant occurred.

The sheriff had conversation with appellant during the course of examining the crime scene. Appellant told the sheriff he felt sure that Hatton had had to shoot Aldridge, and — according to the sheriff— explained that Hatton was attempting to force Aldridge to drop the knife, which oc-counted for the wounds in Aldridge’s right arm.

Hatton was arrested by the sheriff forthwith. On May 29th, two days after the shooting, Hatton furnished a written statement to Clark County law enforcement officials. In the statement Hatton repudiated his earlier confession and averred that the appellant had done the shooting. According to Hatton’s revised version, after the shooting had occurred, appellant prevailed upon Hatton to assume the blame for it. Hatton said that appellant directed Hatton to place the butcher knife by Aldridge’s hand so that a self-defense plea could be made. Without detailing all of it, we observe that Hatton’s second version of the incident fully placed the guilt upon appellant. Hatton accounted for his unusual conduct by his assertion that he was afraid of appellant. For the defense it was shown that Hatton had previously been convicted of a felony; it was also shown that on a prior occasion Hatton had sought to implicate the appellant in a crime for which Hatton was subsequently convicted on his own guilty plea.

Appellant was arrested on June 1, following Hatton’s statement of May 29th. Appellant denied then, and continues to deny, all that Hatton charged in the second version. It was shown that appellant had also been convicted of a felony some ten years before the present incident.

The prosecution and defense each adduced testimony which, if believed by the jury, could respectively have demonstrated a motive for appellant’s animosity toward Aldridge, or a difficulty between Hatton and the deceased.

We turn now to consideration of appellant’s claim that the court should have directed a verdict of acquittal for him. The contention is posited upon two grounds: (1) that the evidence of Hatton had been so completely discredited as to make a guilty verdict contrary to the evidence, and (2) that Hatton’s evidence was uncorroborated, as is required by RCr 9.62. We consider these grounds in the order enumerated.

Appellant relies upon Warnell v. Commonwealth, Ky., 262 S.W.2d 683, in support of his contention that the evidence was inadequate to warrant submission to the jury. We believe the Warnell case is readily distinguishable from the present one. In Warnell it appears that the only evidence against the accused emanated from Rochie Bledsoe. As noted in the Warnell opinion, Bledsoe so thoroughly contradicted himself (both in the matter of changing his original story1, and in the varying subsequent accounts he gave) that it was characterized as “wild speculation” for anyone to determine the true facts from Bledsoe’s testimony. But the same thing may not be said of Hatton’s evidence. It is true that Hatton first gave an account of the slaying utterly at variance with the account to which he testified. However, he did advance some reasons (plausible if believed — and not ipso facto unbelievable) for his changed version. He clung steadfastly to the second version. We think this case is of that type that falls “within the province of the jury to pass upon the credibility of witnesses” as was specifically noted in Warnell. See 262 S.W.2d at p. 685.

With respect to the claim that Hatton’s testimony lacked corroboration as prescribed by RCr 9.62, it is our view that Hatton was not an accomplice within the meaning of that section. As previously noted, Hatton placed the entire crime upon appellant; conversely, appellant placed it all on Hatton. Neither claimed to have been a participant with the other. It is true that they were jointly indicted, but this does not make them accomplices, absent some showing that one aided and abetted the other. Ringstaff v. Commonwealth, Ky., 275 S.W.2d 946; Anderson v. Commonwealth, 181 Ky. 310, 204 S.W. 71; Music v. Commonwealth, 186 Ky. 45, 216 S.W. 116. It may well be that Hatton became an accessory after the fact (under prosecution’s theory accepted by the jury) when he at first exculpated appellant by assuming responsibility for the crime. But this does not make him an accomplice. Perkins v. Commonwealth, Ky., 324 S.W.2d 388. 6 Ky.Digest 1, Criminal Law, For the reasons assigned, we find no merit in appellant’s first contention.

We find no error in the admission of the pictures of the body of Aldridge as it lay on the kitchen floor. There is nothing about the photographs tending to incite passion upon the part of the jury. Indeed, the photographs do no more than reflect the form of a man lying on his back as if in peaceful sleep. No bloodstain appears, nor is there any evidence of a wound. Moreover, the pictures were relevant in that they gave pictorial demonstration that it was not possible that appellant could have known the whereabouts of the wounds on Aldridge’s body, unless he had been told of it by Hatton, or unless he himself had been present and inflicted the wounds or seen them inflicted. Under these circumstances, we cannot say that error was committed in their admission. See Carson v. Commonwealth, Ky., 382 S.W.2d 85, 90; Milam v. Commonwealth, Ky., 275 S.W.2d 921, and cases there cited.

The next contention of appellant relates to the court’s admission of certain evidence from the Clark County sheriff as rebuttal evidence. The basis of the complaint is that the sheriff had testified to the same facts on his direct examination. But there were certain areas of the testimony offered in rebuttal by the sheriff that did contradict what appellant had said when he testified. For example, when the sheriff had originally testified he related that appellant had said that he, appellant, had admitted Aldridge to the appellant’s home at about 1:00 a. m. Appellant denied having said this, and asserted that he did not know that Aldridge was in his home until he happened to see him asleep at the kitchen table at about 3:30 a. m. At another point in his testimony, the appellant said that he did not remember having told the sheriff about certain wounds having been in Aldridge’s arm- — then he qualified this to the effect that he had obtained this information after Hatton had been lodged in jail— and that he may have made the statement at that time. On the whole, it seems to us that the sheriff’s evidence fairly is rebuttal. However, in any event, we cannot see that any substantial right of appellant was prejudiced by admission of the evidence when it was admitted. RCr 9.24 directs that any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Based upon the reasoning of that rule and Lee v. Commonwealth, 305 Ky. 734, 205 S.W.2d 509, and cases collated in 6 Ky.Dig. 2, Criminal Law, we are impelled to the conclusion that there is no merit in this contention of error.

Finally, the appellant asserts that he was denied a fair trial, amounting to want of due process, by virtue of the fact that the county attorney for Clark County caused witnesses for appellant to be subpoenaed before the Clark County grand jury after the indictment against appellant had been returned by a former grand jury. Appellant relies upon United States v. Dardi, 330 F.2d 316 (2 C.C.A.) in which the salutary rule is announced:

“It is improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial.”

We are in accord with the principle. Our difficulty is that we do not find sufficient indication of its violation here to warrant its imposition. The county attorney filed counteraffidavit, in which he conceded that th?. witnesses foi; appellant had been subpoenaed before the subsequent grand jury, but denied that the purpose was preparation for the instant trial. There was no showing that appellant was deprived of the full benefit of the testimony of any of these witnesses — neither did any of the witnesses relate that they had been threatened or otherwise coerced to withhold testimony favorable to appellant. Zeal in bringing law violaters to the bar of justice is commendable in prosecuting officials; however, the guaranties of due process and fair trial insure that the prosecution shall not use its offices and processes to intimidate defense witnesses. If such a showing is made, the courts must visit appropriate sanctions upon it. No such case appears before us.

The judgment is affirmed.

ON PETITION FOR REHEARING

MONTGOMERY, Judge.

On petition for rehearing five grounds are urged, three of which are disposed of in the original opinion. It is urged in the petition, for the first time, that: (1) certain statements of the county attorney concerning a polygraph test, and (2) the failure to grant a change of venue on the second trial violated appellant’s right to a fair and impartial trial.

A colloquy between the county attorney and appellant’s counsel concerning a polygraph test took place before the bench and while the jury was in the courtroom. Appellant contends that the county attorney’s statements were loud enough to have been heard by the jury and thus were prejudicial. The record does not reveal that the jury heard any part of the colloquy. However, no objection was made to the alleged misconduct at the time, nor is it pointed out as error in the motion for a new trial or in appellant’s brief. Such failure to object is considered a waiver and precludes the review of such claimed error. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861; Lewis v. Commonwealth, Ky., 357 S.W.2d 31; Harris v. Commonwealth, Ky., 342 S.W.2d 535. It is likewise too late to raise such objection on petition for rehearing. RCA 1.350; Herrick v. Wills, Ky., 333 S.W.2d 275.

On December 9, 1963, appellant made an application for change of venue in which he alleged that he could not have a fair trial in Clark County. KRS 452.210 ; 452.-220. The petition was supported by two affidavits. The application was denied on December 11, 1963.

At a subsequent term of court on June 24, 1964, the following proceedings were had:

“THE COURT: The case of Commonwealth of Kentucky vs. Albert Howard called for trial. What says the Commonwealth?
MR. CHENAULT: The Commonwealth’s ready.
MR. BROWN: The defendant answers ready, subject to renewing our petition for change of venue which had heretofore been filed, and which I assume there must be some order in the record overruling it.
MR. REDWINE: It was never passed on.
THE COURT: I don’t think we had any hearing on change of venue.
MR. THOMPSON: There’s an order overruling that, Your Honor please.
MR. BROWN: I j.ust want the record to show we renew it as of today.
THE COURT: You have any additional evidence to offer on your renewal?
MR. BROWN: I don’t have anything except I want the record to show that as of today we are renewing.
THE COURT: Let the record so show and that they offer nothing new on that.”

A jury was called and the case proceeded to trial. Such action constituted a denial of the renewed motion.

It is to be noted that appellant offered nothing new in support of his motion to show that he could not have a fair trial on that date, June 24, 1964, more than six months later than the date of the application and the supporting affidavits. It obviously is necessary that the application for a change of venue he addressed to whether an accused can have a fair trial at the time the case is about to be tried, instead of at some time in the past or future. The state of public opinion or the conditions which would render a fair trial impossible may be dissipated in six months’ time. Too many things may happen in this fast moving world for people in a community or county to retain for more than six months a state of hostile opinion or feeling against an accused that would deprive him of a fair trial.

The application for change of venue and supporting documents must be addressed to the conditions existing at or near the time of trial. In Patton v. Commonwealth, 289 Ky. 627, 159 S.W.2d 1006, the Court said:

“In the light of the evidence presented and the circumstances shown, we have no alternative but to conclude that at the time this case was tried, it was impossible for defendant to obtain a trial at the hands of an impartial jury, and the learned judge erred in denying the application for a change of venue.”

In Nantz v. Commonwealth, Ky., 243 S.W.2d 1007, this Court held:

“We have carefully considered all the testimony and find that it affirmatively appears that at the time the application was made appellant could not obtain a fair and impartial trial in Harlan County.”

The correct procedure, that is, successive applications before each trial, resulted in a reversal for failure to grant a change of venue in Brunner v. Commonwealth, Ky., 395 S.W.2d 382 (decided June 11, 1965). See authorities cited therein. The application made by appellant on December 9, 1963, did not present the state of public opinion on June 24, 1964, and the court was correct in denying it. The question raised concerning a hearing on the application is answered in the Brunner case.

Petition for rehearing overruled.


author: WADDILL, Commissioner.

text:
    Irma W. BARTMAN, Appellant, v. DERBY CONSTRUCTION COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    March 5, 1965.
    Rehearing Denied Nov. 26, 1965.

      J. W. Jones, Louisville, for appellant.
    B. L. Shamburger, Louisville, R. Vincent Goodlett, Frankfort, for appellee; Hazel-rigg & Cox, Frankfort, of counsel.
   WADDILL, Commissioner.

Appellant, Irma Bartman, instituted this action March 18, 1958, to recover for damage to her property allegedly resulting from the blasting operations of appellee, Derby Construction Company. The appeal is from an order granting summary judgment and dismissing appellant’s action as barred by the five-year statute of limitations. KRS 413.120(7).

In support of its motion for summary judgment appellee filed a portion of the transcript of evidence in a prior suit filed against it by neighbors of appellant. In that transcript appears testimony of appellant that could be interpreted to show that appellant sustained damage from appellee’s blasting as early as 1952. Appellant filed affidavits that the damage for which she seeks a recovery occurred in July 1953 (within the limitation period). Appellee maintains that the trial court properly dismissed appellant’s action because her testimony in the neighbor’s suit constitutes a judicial admission that her cause of action accrued prior to the limitation period.

In the absence of circumstances giving rise to a probability of error in the answers given, a party to an action is bound by admissions which he has made in his testimony on the trial of that action. Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021. Moreover, a pleading filed in an action may constitute a judicial admission in a subsequent action between the same parties. Center v. Stamper, Ky., 318 S.W.2d 853.

Since the testimony relied upon by appellee to sustain its motion for summary judgment was not given in an action between these same parties nor in an action wherein appellant was even a party we conclude that it does not constitute a judicial admission and that the court erred in granting summary judgment. Without attempting to determine whether there is a conflict between appellant’s prior testimony and her affidavits in the instant action, we believe that it is for a jury to determine what credence to give her testimony in this action as possibly impeached by her statements in the past.

Upon the record before us it is not apparent whether the alleged nuisance is of a permanent or temporary character. A consideration of the opinion in Lynn Mining Co., Inc. v. Kelly, Ky., 394 S.W.2d 755 (this day decided) should be of assistance in ascertaining the date from which to measure the limitation period.

The judgment is reversed with directions to enter an order overruling the motion for summary judgment.


author: MILLIKEN, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky et al., Appellants, v. Virginia HESCH, Clerk of Circuit Court of Campbell County, et al., Appellees. FLOYD COUNTY, Kentucky, et al., Appellants, v. Henry C. HALE, Sheriff of Floyd County, Appellee.
    Court of Appeals of Kentucky.
    June 28, 1965.
    As Modified on Rehearing Oct. 29, 1965.
    Robert Matthews, Atty. Gen., Hunter B. Whitesell, Frankfort, Charles Runyan, Asst. Atty. Gen., for the Commonwealth.
    Barkley J. Sturgill, Prestonsburg, for Floyd County and others.
    John Hopkins, Fred F. Bradley, Edward F. Prichard, Jr., Frankfort, George T. Muehlenkamp, Newport, James R. McGar-ry, Covington, David R. Reed, Paducah, William E. Scent, Reed & Scent, Louisville, for Virginia Hesch and others.
    Combs & Rather, Lexington, Paul E. Hayes, Prestonsburg, for Henry C. Hale, Sheriff.
   MILLIKEN, Judge.

These are appeals from judgments upholding the constitutionality of statutory salary increases for local constitutional officers in excess of the nominal $7,200 maximum allowed by Section 246 of the Constitution, and we have consolidated the cases on appeal. Before acceding to the legislative mandate directing payment of the salary increases, the State Commissioner of Finance and other officials felt compelled to have the approval of this Court, and these cases are the result.

The 1964 regular session of the General Assembly enacted Senate Bill No. 84, (Chapter 109) granting salary increases to county clerks, sheriffs, circuit clerks, county judges and county jailers within the maximum limit of $9,600 “to be paid solely out of the statutory fees and salaries received * * * during the calendar year.” Though ineptly worded, it is reasonably clear that the Act intends that the maximum compensation of $9,600 shall be paid, if the fees of the office, together with such salary as the fiscal court may authorize to be paid (but is not required to) under authority of KRS 64.720, will reach that amount. The questions presented here are whether the increase in the maximum compensation from $7,200, the amount stated in Section 246 of the Constitution, to $9,600, the maximum amount prescribed by the statute, is constitutional, and, secondly, whether the increases permitted by the statute may be paid during the current terms of office of the respective officers when Sections 161 and 23S of the Constitution prohibit changes in the salaries of officers during their terms of office.

In June, 1962, this Court took cognizance of what every housewife had known for a long time—that the purchasing power of the dollar had been steadily declining, and so we said in our opinion in Matthews v. Allen (1962), Ky., 360 S.W.2d 135, a case which presaged the determination of the issues presented in the cases at bar, “The net result of our consideration is that the salary provisions of Section 246 of the Constitution may be interpreted and periodically applied to all constitutional officers in terms which will equate current salaries with the purchasing power of the dollar in 1949 when Section 246 was adopted.” This principle of construction accomplishes the dual purposes of Section 246; it preserves a reasonable ceiling on salaries and permits the payment of reasonable salaries, both equated with the 1949 purchasing power of the dollar.

When the 1964 General Assembly raised the salary máximums for the offices here involved it did so in conformity with that decision, for the Consumers’ Price Index of March, 1964, disclosed that the purchasing power of the dollar had decreased approximately one-third since the adoption of Section 246 in 1949. The maximum salary increase granted by the General Assembly is exactly one-third.

We reaffirm our decision in Matthews v. Allen, above, because it expresses in current values the initial values which, are the essence of Section 246 (the same as tax assessments are intended by Section 172 to express current values). We further conclude that the salary increases here involved do not violate the purpose of the constitutional provisions prohibiting changing compensation during current terms of office, for on the theory of construction we have adopted, the salaries of the various offices are merely being kept abreast of their initial value or purchasing power. The Commissioner of Finance and other officers shall authorize payment of the salary increases directed by the General Assembly.

The judgments are affirmed.

MONTGOMERY and HILL, JJ., dissenting.

MONTGOMERY, Judge

(dissenting).

It is with extreme reluctance that I dissent from the majority opinion. The county officials should have their pay raised, but the proper way to do so is by amendment or revision of Section 246 of the Kentucky Constitution as provided therein rather than by judicial fiat.

The majority opinion gives no constitutional authority for evasion of Section 246, which places a limitation on the compensation of public officers. The pertinent portion of the section follows:

“No public officer or employe except the Governor, shall receive as compensation per annum for official services * * * any amount in excess of the following sums: * * * all other public officers, Seven Thousand Two Hundred Dollars. * *

My views in support of the constitutional limitation are set forth in a dissent, concurred in by two other members of the Court, in Board of Education of Graves County v. DeWeese, Ky., 343 S.W.2d 598, where the section was evaded in a case involving the salary of a county school superintendent.

The holding of the majority in the present case is sought to be bottomed on the decision in Matthews v. Allen, Ky., 360 S.W.2d 135, in which it was held that Section 246 did not limit the salaries of circuit judges. I disqualified and did not sit in that case for personal reasons.

The decision in that case had two bases: One, the so-called “elastic dollar” theory, and the other, Section 133 of the Kentucky Constitution. Section 133 provides:

“The Judges of the Circuit Court shall, at stated times, receive for their services an adequate compensation to be fixed by law, which shall be equal and uniform throughout the State, so far as the same shall be paid out of the State Treasury.”

In my opinion Section 133 afforded a constitutionally justifiable basis for the increase in compensation for circuit judges; otherwise, it would serve no purpose in the Constitution. See Kentucky Constitution, Section 112; Stone v. Pryor, 103 Ky. 645, 45 S.W. 1053, 1136; and Perkins v. Sims, Ky., 350 S.W.2d 715. But this section cannot be used as a basis for sustaining the majority opinion here because the officers involved are not circuit judges.

Therefore, the majority opinion is relegated to the “elastic dollar” basis for justification. It is sufficient to say, in my opinion, that no economic theory is justification for amending or evading a constitutional provision. The 1949 amendment to Section 246 came following a period of inflation after World War II, but there is nothing to indicate that the limitations therein were to be based on a fluctuating money standard. In the span of the experience of many of us, the buying power of the dollar has varied greatly. It has gone up; it has gone down. The majority opinion does not indicate whether the “elastic dollar” will contract in value as well as expand or the consequences of either action. Such a standard is too uncertain and defeats the whole principle of a monetary standard of values.

The irony of the situation is that such a decision should be reached when the constitutional processes of revision have been set in progress and will soon reach the stage when the people of the Commonwealth will be called upon to voice their sentiments in this regard. This is the system of government heretofore contemplated as the democratic process. Any other system of government can lead only to chaos and destruction of orderly government. If the Court of Appeals is to constitute itself as an all-wise super-legislature, then the Constitution Revision Assembly may just as well disband. Its services will no longer be needed.

As a strong believer in our Constitution, I feel that it is my humble duty to uphold it, whatever the consequences. For these reasons I cannot agree with the majority opinion.

HILL, J., concurs.

      . Referred to by the American Judicature Society as “an historic decision * * * and Kentucky has provided a pattern for dealing with” a problem every government must face. Golden Jubilee issue of the Journal of the American Judicature Society (December, 1963), Vol. 47, Number 7, page 127.


author: PALMORE, Judge.

text:
    J. WALTER WRIGHT LUMBER COMPANY, Inc., Appellant, v. Walter BAKER et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Rehearing Denied Nov. 26, 1965.

      John M. Stephens, Pikeville, Denver Adams, Hyden, for appellant.
    A. E. Cornett, Hyden, for appellees.
   PALMORE, Judge.

The appellant company, which we shall call “Wright,” brought this action for damages and injunctive relief against the cutting and removal of timber within the overlap of three conflicting patents, the senior of which was not owned of record by either of the parties at the time the suit was commenced. During the course of the trial (by depositions), the defendant-appellee Baker acquired by deed the record title to a major portion of the senior patent, embracing the area in question. Baker duly amended his counterclaim demanding that his title be quieted. Wright pleaded cham-perty. After the taking of further proof on both sides a judgment was entered in Baker’s favor. Wright appeals.

The senior patent is DeGroot 43192, surveyed March 4, 1870. Wright owns De-Groot patents 43213, 43214 and 43215, surveyed March 5, 1870, all of which have been held and conveyed together and for purposes of constructive possession are thus to be regarded as a single tract. Cf. Parsons v. Dills, 159 Ky. 471, 167 S.W. 415, 416 (1914). Wright also owns Ballenger Garrison patent 59770, surveyed in 1883, and Joseph Waggoner patents 45941 and 45942, surveyed in 1864. All six of these patents of Wright’s lap on DeGroot 43192. However, the overlap of Waggoner 45941 is not within that portion of DeGroot 43192 deeded to and claimed by Baker, and that of Waggoner 45942 appears to cover only a very negligible part of it, if any.

It may be assumed for purposes of this case that until the present controversy arose no one ever had entered into actual possession claiming under color of title of DeGroot 43192. When Baker cut the timber in question he was claiming through the Garrison patent, and admittedly his title was inferior to Wright’s chain under the same patent as well as under its three DeGroot patents. To defeat Baker’s senior record title under DeGroot 43192 Wright relies on proof of adverse possession under color of title of its junior DeGroot patents 43213, 43214 and 43215 (and, perhaps, under the Garrison patent), and cites the case of Ford Motor Company v. Collett, Ky., 303 S.W.2d 553 (1957), which involved another group of DeGroot patents lying immediately west of DeGroot 43192.

In Ford Motor Company v. Collett it was held that since no one was in possession under an elder patent (Gilbert) the entry of an adverse claimant under color of a conflicting junior title, “coupled with its continuous actual occupancy and cultivation of part of its boundary, while claiming to the limits of its deed, constituted possession of the entire boundary.” However, it must not be overlooked that the actual possession of the junior titleholder in that case was within the overlap.

“The rule is well settled in this state that the actual occupancy by a junior paten-tee of that part of a tract of land which does not interfere with the elder grant does not give him possession of the part within the interference, although the elder patentee never actually entered upon any part of the land included in his patent.” (Emphasis added.) McCoy v. DeLong, 22 Ky.Law Rep. 719, 58 S.W. 704 (1900). Otherwise, as pointed out in Trimble v. Smith, 7 Ky. (4 Bibb) 257 (1815), the senior owner might be divested of his title without any possibility of knowing that the junior claimant was holding against him. To the same effect, see Wilson v. Stivers, 34 Ky. (4 Dana) 634 (1836); Burt & Brabb Lumber Co. v. Sackett, 147 Ky. 232, 144 S.W. 34, 37 (1912); Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S.W. 130, 139 (1916); Morgan v. Big Woods Lumber Co., 198 Ky. 88, 249 S.W. 329, 341 (1923); and Ramsey v. Hughes, 212 Ky. 715, 280 S.W. 99 (1926).

The evidence of possessory activities focused on four clearings, which for identification were numbered 1 to 4. The chancellor found as a fact that Wright did not establish sufficient possession of any of these clearings to ripen into title.

Clearings 3 and 4 are irrelevant as a matter of law, because neither is within DeGroot 43192 or within the boundary of any senior patent that overlaps it.

Clearing 1 is wholly within DeGroot 43214 and Garrison 59770, both of which patents are owned of record by Wright. It is also partially within DeGroot 43192 but not in the portion covered by Baker’s deed. Nevertheless, had Wright been able to prove 15 years’ adverse possession of this clearing by it or its predecessors under color of one or the other of its two junior title chains, it would have established title by adverse possession throughout the interlap of the boundary under which it was claiming during the period its possession was ripening into title. That is because, when a junior claimant with colorable title enters upon the interlock at a time when the owner has no actual possession anywhere on his land, the junior claimant’s possession extends throughout the interlock. 2 C.J.S. Adverse Possession § 198, p. 802; Miniard v. Napier, 167 Ky. 208, 180 S.W. 363, 366 (1915).

It was shown that No. 1 was an old clearing, dating back as far as 1890, and that for an unspecified period of time it had been tended by John Whitehead, one of Wright’s predecessors in title to part of the Garrison chain. However, not only did the evidence fall short of proving any particular 15-year period of continuous adverse possession by Whitehead, but the descriptions in the deeds under which Whitehead claimed were not sufficient to establish color of title extending into that part of Garrison 59770 which laps the portion of DeGroot 43192 here in controversy. In other words, the description was not clear enough to define the interlock, if any. It is doubtful that Whitehead actually claimed beyond the ridge separating the Stinnett Creek and Elisha Creek watersheds, and certainly the evidence was not such that the chancellor would have been forced to conclude that his color of title extended westwardly to the far limits of the Garrison patent, as apparently contended by Wright’s main witness. In order for a deed to constitute color of title as a basis for extension of possession by an adversary entrant it must describe the land with reasonable certainty. Lipps v. Turner, 164 Ky. 626, 176 S.W.2d 42, 44 (1915).

Clearing 2 was opened by John Whitehead in 1930, that being the same year in which he conveyed the tract embracing No. 1 to Wright’s predecessor, Fordson Coal Company. Probably some sort of swap was made in which Fordson bought off Whitehead’s conflicting claim of title to part of Garrison 59770 and put him in possession, as its tenant, of what became No. 2. This clearing is within the overlap of Wag-goner 45941, DeGroot 43213, and DeGroot 43192. It was farmed by Whitehead and his family for a number of years. Assuming they were in fact tenants of Fordson, there is no doubt that this possession extended throughout one or the other (or perhaps both, but we need not decide) of the overlaps of Waggoner 45941 or DeGroots 43213, 43214 and 43215 (bearing in mind that the latter three are one) on DeGroot 43192. There was, however, a direct conflict of evidence on the point. Members of the Whitehead family (some of whom are related to Baker by marriage) insisted that the clearing was abandoned in less than 15 years. Again this was for the chancellor to decide. Wright bore the burden of proving adverse possession, hence the risk of non-persuasion.

It was shown also that from 1930 to 1946 Wright’s predecessor, Fordson, leased out a portion of the property in controversy, Baker himself having been the lessee for 10 years of this time. However, there was no satisfactory proof of the extent to which actual, visible and continuous occupancy or possession was exercised under these leases.

The claim of champerty is based principally on KRS 372.070, which invalidates the attempted conveyance of land held in the adverse possession of another. The adverse possession contemplated by this statute must be actual and not constructive, and it must exist contemporaneously with the execution of the deed. Lanham v. Huff, 228 Ky. 139, 14 S.W.2d 402 (1929). It was not shown that any part of the property acquired by Baker during the litigation and made the subject of his amended counterclaim was in the actual possession of 'anyone at the time the deed was executed.

Both parties recognize the general principle that the character of adverse possession necessary to render a deed void under the champerty statute is that which, if continuously maintained for 15 years, would ripen into title. Cf. Lanham v. Huff, 228 Ky. 139, 14 S.W.2d 402 (1929). As the only muniments of Wright’s title which overlap any portion of the property conveyed to Baker are junior to DeGroot 43192, out of which Baker’s title originates, under the authorities heretofore cited in this opinion no possession, actual or otherwise, held by Wright outside the overlap would extend into the overlap. Therefore, no such possession could ripen into title within the overlap.

In support of his champerty theory Wright refers to Curry v. Cox, 208 Ky. 653, 271 S.W. 700 (1925), and Stephenson Lumber Co. v. Hurst, 259 Ky. 747, 83 S.W.2d 553 (1934), but concedes that our decisions on this subject have not been consistent. In the Curry case a senior titleholder’s conveyance was held void because the junior titleholder had actual possession within the overlap. We understand that decision as representing a correct application of the fundamental principles hereinbefore discussed. But in the Stephenson Lumber Co. case the court evidently held that a junior claimant’s possession outside the overlap would invalidate the senior titleholder’s conveyance. There have been other decisions, scattered over the years, of like import, founded on the principle that actual possession of a portion of property will by presumption of law be extended to the boundaries defined in the possessor’s color of title, but seeming to ignore the fact that one of the exceptions to that principle, at least in this state, is that such possession will not extend by construction into the bounds of a senior title.

“If he enters under a deed * * * he will be in the actual possession to the extent of his boundaries, or to the extent his boundary is not in the actual possession of another, or unless the boundary described in his color of title embraces a lap upon a senior grant, in which instance he will not be in the actual possession of the portion embraced in the conflict, unless he actually enters upon the part in conflict.” (Emphasis added.) Tennis Coal Co. v. Sackett, 172 Ky. 729, 190 S.W. 130, 135 (1916).

“A further principle which we have not overlooked is that a claimant under a junior grant which laps upon a senior grant is not in actual possession of any part of his grant which is covered by the senior grant unless he actually enters upon the lap.” Morgan v. Big Woods Lumber Co., 198 Ky. 88, 249 S.W. 329, 341 (1923).

“The rule is that where one claims under color of title and is in actual possession of a part of the land within his well-defined boundary, the law, by construction, carries his possession to the full extent of his boundary, except that as against actual adverse possession this rule will not prevail, and except that as against superior title this rule will not prevail, unless the entry and possession be upon the interference.” (Emphasis added.) Ramsey v. Hughes, 212 Ky. 715, 280 S.W. 99, 100-101 (1926).

The “rule relating to possession under color of title to a well-defined boundary is not sufficient to give appellant and those under whom she claims title by adverse possession, because that rule will not prevail against superior title unless the entry and possession be upon the interference.” Pursifull v. Green, 214 Ky. 516, 283 S.W. 1055, 1056 (1926).

“Where conveyances or grants of land interfere with each other, portions taken under the junior grant outside of the elder grant will not give possession of the interferences.” Combs v. Algoma Block Coal Co., 283 Ky. 160, 138 S.W.2d 1033, 1036 (1940).

“The appellees invoke the rule that where one claims under color of title and is in actual possession of a part of the land within his well-defined boundary, the law of construction carries his possession to- the full extent of his boundary. This rule is subject to exceptions, however, one of which is that it will not prevail against superior title unless the entry and possession be upon the interference. Where two patents overlap possession of any portion of the junior patent, other than the overlap, is insufficient to confer title by adverse possession to the overlap.” Cline v. Blackburn, 292 Ky. 713, 168 S.W.2d 15, 16 (1943).

And, as we have said, this is true regardless of whether the senior titleholder has made any actual entry whatever. McCoy v. DeLong, 22 Ky.Law Rep. 719, 58 S.W. 704 (1900); Trimble v. Smith, 7 Ky. (4 Bibb) 257 (1815).

Consistent with the principle stated in the foregoing quotations, it was held in Brown v. White, 153 Ky. 452, 156 S.W. 96, 98-99 (1913), that a plea of champerty by holders of the inferior paper title would be available only if they had actually entered upon the strip of land covered by the conflicting deed descriptions. The reason for this rule is that in order to make a conveyance champertous the possession must be such as would put the purchaser on notice of the hostile claim. Travis v. Bruce, 172 Ky. 390, 189 S.W. 939, 943 (1912). Gatliff v. Carson-Muse Lumber Co., 169 Ky. 810, 185 S.W. 110 (1916), provides an apt illustration. In that case the actual occupancy of one acre under a deed covering 101 acres was held ineffective to sustain a plea of champerty against a conveyance of the remaining 100 acres by the true owner of the 100 acres (no part of which was in the actual possession of anyone) :

“Manifestly, their occupancy of and possession of the 1 acre did not extend over and include the 100 acres so as to oust the constructive possession of the real owner claiming under the senior patent. In other words, their occupancy of the 1 acre, which was outside the 101 acre survey, was no notice to appellant when he took his deed that they were claiming possession of the 100 acres.”

There may be some circumstances in which possession sufficient to ripen into title is not enough under the champerty statute, but we know of no instance in which the converse can be so. Stephenson Lumber Co. v. Hurst, 259 Ky. 747, 83 S.W.2d 48 (1934), holding a deed champertous by reason of a possession which in the same opinion was held insufficient to ripen into possession (because not within the lap), reached a completely anomalous result. To the extent inconsistent with the principles set forth in this opinion it is overruled, as are the decisions cited in footnote 1.

It follows, of course, that the conveyances to Baker were not champertous under KRS 372.070. Nor were they so merely because of the title’s being in litigation at the time. A party already in litigation may perfect his claim or title. Adams v. Buford, 36 Ky. (6 Dana) 406, 415 (1838). And two parties both of whom have a bona fide claim to property in or about to be in litigation may legally contract with respect to the property and the litigation. Cf. Ventro v. Clinchfield Coal Corporation, 199 Va. 943, 103 S.E.2d 254, 262 (1958). Orton v. Smith, 59 U.S. (18 How.) 263, 15 L.Ed. 393 (1856), in which an interloper purchased the interests of two litigants, is not analogous.

The re-recording in 1960 of the 1948 deed to Baker’s predecessor in title, in which DeGroot 43192 is shown on the 1960 but not on the 1948 copy, is an equivocal circumstance, but we do not belieye it demands a conclusion that the original was altered in the interim, even though the clerk testified that it was the practice in his office, after recording, to proofread the record against the original. It is true that Baker did not put the original deed in evidence; but neither did Wright seek to have it produced. Nor was inquiry made of the parties to the deed. Assuming that the authentic content of the instrument was properly in issue, we think that under the state of the evidence it was the trial court’s province to decide.

The judgment is affirmed.

      . Cf. Lawhorn v. Hicks, 247 Ky. 205, 56 S.W.2d 996, 998 (1933); Pioneer Coal Co. v. Asher, 237 Ky. 254, 35 S.W.2d 285 (1931).

      . Cf. Moore v. Baker, 92 Ky. 518, 13 Ky.Law Rep. 724, 18 S.W. 363 (1892); Sullivan v. Hill, 33 Ky.Law Rep. 962, 112 S.W. 564, 565 (1908).