text:
    James C. SCOTT et al., Appellants, v. BOARD OF ADJUSTMENT et al., Appellees.
    No. 4403.
    Court of Civil Appeals of Texas. Waco.
    Sept. 2, 1965.
    Rehearing Denied Sept. 23, 1965.

      Frances Tarlton Farenthold, Charles R. Cunningham, Corpus Christi, for appellants.
    I. M. Singer, City Atty., McDonald & Spann, John A. Waller, Corpus Christi, for appellees.
   WILSON, Justice.

Two taxpayers brought an injunction proceeding against the City of Corpus Christi, its Board of Adjustment and Greater Corpus Enterprises, Inc., operator of Ramada Inn, to restrain maintenance of a sign authorized by the Board as a variance under the city zoning ordinance. Plaintiffs prayed that the Board’s decision and the permit issued thereunder be declared void. Summary judgment was rendered dismissing the action on the ground plaintiffs had no justiciable interest which would justify their prosecution of the suit. We affirm.

The zoning ordinance limits the size of “free-standing signs” (as distinguished from those attached to buildings) in the bayfront business district to an area of 30 square feet. It authorizes erection of signs 230 square feet in area if attached to a building. The Board authorized, as a variance, an unattached Ramada Inn sign of 224 square feet. The petition alleged the decision was arbitrary, capricious and discriminatory, and constituted an abuse of discretion because no hardship justifying a variance existed; and that plaintiffs were property owners who would sustain “material damages” by maintenance of the sign.

One plaintiff and his wife owned, as their only property, a residence several miles from the bayfront area where the sign was erected. Their depositions reflect no claim of damage, and negative damage to property. The only harm asserted is that of “an interested citizen”. The other plaintiff owned a vacant lot two blocks from the sign location, and a residence more than three or four blocks distant. Her only “damage”, testified to by deposition, was “in the same way the entire bayfront has been damaged scenically”. Asked if she sustained any individual property damage, she answered: “That, I wouldn’t know”.

“Equity does not interfere with the rules or orders of an administrative officer at the suit of a taxpayer” unless the taxpayer had “sustained or will sustain some pecuniary loss therefrom.” 6 McQuillin, Municipal Corporations (Rev. ed.) Sec. 2751, p. 956.

Where the taxpayer’s injuries affect all members of the public, are common to all the citizens, and are not peculiar to him, he is not the guardian of the public interest, and his individual action will not lie to restrain alleged interference with the public right. He does not have a justiciable interest. City of San Antonio v. Stumberg, 70 Tex. 366, 7 S.W. 754, 755; Hazelwood v. City of Cooper, Tex.Civ.App., 87 S.W.2d 776, 778, writ ref.; Jenkins v. City of Cooper, Tex.Civ.App., 87 S.W.2d 778, writ ref.; San Antonio Conservation Soc. v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259, 263, writ ref. See also State v. Clark, 161 Tex. 10, 336 S.W.2d 612, 617; Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94, 96; Harrell v. Lynch, 65 Tex. 146; Genard v. City of San Antonio, Tex.Civ.App., 307 S.W.2d 592, 594, writ ref. n. r. e.; Sullivan v. Universal Electric Const. Co. of Alabama, Tex.Civ.App., 227 S.W.2d 387, 390 and cases cited.

Because Art. lOllg, Vernon’s Ann. Civ.St. empowers “any taxpayer” to complain of illegality of a Board decision, appellants say the foregoing rule is inapplicable to them. A taxpayer would have been authorized to bring the action irrespective of the statute and before it was enacted, if the requisite justiciable interest existed. The statute did not destroy that prerequisite. City of Goose Creek v. Hunnicutt, 118 Tex. 326, 15 S.W.2d 227, 228; Yett v. Cook, 115 Tex. 205, 281 S.W. 837, 841, 842; Hoff v. Westhoff, Tex.Civ.App., 102 S.W.2d 293; Houston Natural Gas Corporation v. Wyatt, Tex.Civ.App., 359 S.W.2d 257, 259.

The judgment is modified to delete the take-nothing provision, Spann Bros. Auto Supply Co. v. Miles, Tex.Civ.App., 135 S.W.2d 1016, and the judgment as modified is affirmed.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    KEATON-ANDREW CATTLE COMPANY, Appellants, v. T. B. SAUNDERS, d/b/a T. B. Saunders & Co., et al., Appellees.
    No. 14580.
    Court of Civil Appeals of Texas. Houston.
    Sept. 9, 1965.
    Bracewell, Reynolds & Patterson, William Key Wilde, Bob Casey, Jr., Houston, for appellants.
    Fannin & Fannin, Oliver W. Fannin, Fort Worth, for appellees.
   BELL, Chief Justice.

This is an appeal from an order sustaining the plea of privilege of T. B. Saunders to he sued in Tarrant County. Saunders’ agent, Roger Foerster, who lives in Harris County, was also sued.

The allegations of appellants’ petition and the evidence show that Saunders was a marketing agent under the Packers and Stockyards Act, 7 U.S.C.A. § 181. He agreed orally with appellants to honor drafts drawn by appellants on him that were given the owners from whom appellants purchased cattle. The agreement was made in September, 1963. Appellants would purchase cattle and a draft would be drawn which would he honored by Saunders. He would then charge appellants’ account with the amount of the draft. Appellants would then sell the cattle and would send the purchaser’s check or a draft on the purchaser to appellee. Appellee would credit the amount of the draft to appellants’ account. For services rendered appellee was to receive 30 cents per head of the cattle purchased by appellants.

Appellee honored all drafts until sometime in April, 1964, when appellee ceased to honor them.

Appellants allege appellee had no reason to stop honoring drafts in violation of the agreement and that appellee’s conduct resulted in the destruction of appellants’ business. This act was alleged -to be intentional and deliberate and as a result of concerted action between Saunders and Foerster, his Houston agent. The suit was for an accounting and for exemplary and compensátory damages.

It is undisputed that appellee Saunders stopped honoring appellants’ drafts. However, there is a dispute in the evidence as to why. The evidence is sufficient to show the appellee stopped because appellants were overdrawn in their account. While this is disputed by appellants, the trial court on sufficient evidence has resolved this issue against them, thus impliedly finding no breach by appellee.

Appellants seek to hold venue in Harris County under Subdivision 9, Article 1995, V.A.T.S., on the theory that this involves trespass on the case.

We conclude that the allegations and the evidence, even if we assume appellants’ position to be true, show nothing more than a suit for accounting and damages for breach of an oral contract. The allegations that the acts of appellee were deliberate and intentional do not change the suit from one for breach of contract. See Henson v. Henson, Tex.Civ.App., 181 S.W.2d 285, no writ hist.; Adamson v. Hexter et al. Tex.Civ.App., 68 S.W.2d 568, no writ hist.

The evidence fails to show any cause of action against Foerster, the resident defendant.

The judgment of the trial court is affirmed.


author: BRADY, Commissioner.

text:
    Louis P. KEARNS and Louis V. Meehan, Plaintiffs-Appellants, v. CITY OF FLORISSANT, a Municipal Corporation, Defendant-Respondent.
    No. 31964.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.
    Rehearing Denied Sept. 8, 1965.
    Application for Transfer to Supreme Court Denied Oct. 11, 1965.
    John T. Sluggett, III, Clayton, for plaintiffs-appellants.
    John R. Gaebe, Florissant, for defendant-respondent.
   BRADY, Commissioner.

This is an appeal from a judgment entered in two consolidated actions brought by the appellants to compel specific performance of what they alleged to be enforci-ble contracts with the City of Florissant, Mo., relating to the operation by plaintiffs of certain concession stands in the city’s parks. We will refer to the respondent as “the city” and the appellants as “the plaintiffs.”

In its pertinent parts Ordinance No. 722 of the city provides that the Park Board “ * * * shall have control of the supervision, improvement, care and custody of said Parks, subject to the general supervisory powers of the City Council and Mayor. Subject to such supervision, the Park Board is authorized and empowered * * * to contract and grant exclusive concessions to persons for the sale of food and beverages within the parks.”

In April of 1963 the Park Board circulated an invitation to bid for the operation of concession stands in two city parks and at the swimming pool for that year and extending through the 1967 season. The plaintiffs submitted bids for the operation of these stands on bid forms provided by the Park Board. The minutes of the board contain the following statement, “After further examination of the bids for the concession stands, it was decided by the board that they recommend to the Mayor, that the contracts be awarded to the following:

Louis Meehan Bangert
Louis Kearns Howdershell
Marie Darrow St. Ferdinand.”

The then mayor of the city testified that upon receipt of the bid forms recommended by the board he attached a signed note to them. The note was never produced at the trial, but his testimony was that it stated that the recommendations had been accepted and the city clerk was instructed to notify the board and those whose bids had been accepted. The notification to the plaintiffs consisted of a telephone message to their wives from someone unidentified but whom they ‘‘assumed” to be the city clerk.

The plaintiffs made the deposits called for in the bid and entered into possession and operation of the facilities for which their bid was accepted. They also expended certain sums for the acquisition and installation of certain equipment. Each operated his respective concession until the end of that season. The next year, in preparation for the season, they tendered cashier’s checks to the city as called for by the bids. Their checks were refused and the city advertised for new bids for the operation of the concessions.

The records of the city do not disclose any authorization granted to the mayor to enter into any contract or to take any action with regard to these concessions. After recommending the acceptance of plaintiffs’ bids, the Park Board took no further action.

Section 432.070, RSMo 1959, V.A.M.S., forbids the city to make any contract “ * * unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, * *

The very existence of § 432.070, supra, has been held to constitute notice to all with whom a city contracts that the law imposes restrictions upon contracts entered into by municipalities. State ex rel. Walton v. Miller, Mo.App., 297 S.W.2d 611. The requirements of that section relating to the execution of a contract by a city have been held to be mandatory, not directory. Burger v. City of Springfield, Mo., 323 S.W.2d 777.

The plaintiffs advance a twofold argument. They first contend that the ordinance permits the Park Board to enter into contracts of this nature. It is unnecessary to decide that issue for it is undisputed that the Park Board never entered into any contract. It did not even purport to accept the plaintiffs’ proposal. As the board understood its function it was to recommend which of the bids should be accepted and this is the sum total of its activities. The Park Board never attempted to enter into any contract with the plaintiffs.

The second contention advanced by the plaintiffs is that the note signed by the' then mayor of the city and attached to the bid forms constituted valid acceptance of the bids with the result that those documents then constituted the contracts which § 432.070, supra, requires to be in writing. We cannot reach the result plaintiffs urge upon us. The ordinance speaks of the “general supervisory powers of the City Council and Mayor” over matters of this nature. We need not dwell upon the question of delegated powers. See State ex rel. Prichard v. Ward, Mo.App., 305 S.W.2d 900, 1. c. 902 [4-7]. Assuming arguendo the ordinance allows the city council to authorize the mayor to bind the city by entering into such contracts, the fact remains that this record is devoid of any evidence of such authorization. In fact, the only evidence on the issue is that there was no such authorization. The result is that even if the missing note is to be considered as a part of the contract, we are still confronted with a contract signed by an official who, so far as this record discloses, had no authority to bind the city by such an act.

The conclusion that there is no valid writing binding the city is inescapable. In Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 1. c. 882, it is said that, “ * * Under the statute it is as much ultra vires for a Missouri municipality to incur a liability in the nature of a contractural obligation in the absence of a writing as to incur a liability not within the scope of its corporate powers or one not expressly authorized by law. * * * ” At 1. c. 885 (175 S.W.2d 874) the court gives the rationale for such a rule: “ * * * The Missouri public policy considers the rights of the public paramount to the rights of the individual; that is, it is better to adopt, by legislation, a rule under which individuals may suffer occasionally than to permit a rule subjecting the public to injury through the possibility of carelessness or corruptness of public officials. Individual cases may present apparent hardships but it is our duty to be guided by the law the same as it was plaintiff’s decedent’s duty to be so guided in the first instance.”

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.


author: JAMES D. CLEMENS, Special Judge.

text:
    The KROGER COMPANY, a Corporation, Plaintiff-Appellant, v. ROY CROSBY COMPANY, a Corporation, Defendant and Third-Party Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a Corporation, Third-Party Defendant.
    No. 32075.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.
    Rehearing Denied Sept. 8, 1965.

      George A. Adolf, St. Louis, for plaintiff-appellant.
    Anderson, Gilbert, Wolfort, Allen & Bierman, Stuart M. Haw, Jr., St. Louis, for defendant and third-party plaintiff-respondent.
    Kerth, Thies & Schreiber, Albert H. Hamel, Clayton, for third-party defendant.
   JAMES D. CLEMENS, Special Judge.

Plaintiff Kroger Company appeals from a summary judgment rendered against it. Kroger had paid one John Murphy $8,500 to settle his claim for injuries received while working atop its store building. Kroger had leased the premises from defendant Roy Crosby Company, and now sues to compel Crosby to indemnify it for its loss, claiming that Crosby had failed to maintain the premises in a safe condition as required by their lease.

In its motion for summary judgment defendant Crosby claimed that the supporting documents showed that Crosby was not liable under its lease to Kroger. The Motion was granted, and plaintiff Kroger’s appeal is now before us. We limit our review to the propriety of the summary judgment. V.A.M.R. 83.13(a). We believe it was improvidently entered.

Defendant Crosby owned a 4-acre tract at Olive Boulevard and McKnight Road in St. Louis County, and leased it to Kroger. In the center of the tract Crosby built two adjoining store buildings, one for Kroger and later one for a drug store. The rest of the tract was for use of both stores and their customers, and was referred to as the “Common Area”. The lease provided:

“ * * * The Lessor covenants and warrants that the leased premises will be well-built, properly constructed, and suitable and fit and that they will be so maintained during the term of this lease.”

Further, by the lease Crosby agreed:

“ * * * to maintain all of the Common Area in good repair, and carry ample Public Liability and Property Damage insurance to properly and adequately protect Lessor and all tenants against claims for damage to property and/or injury or death to person or persons while on the Common Area”.

John Murphy had gone atop the Kroger building to repair its air-conditioner. Access to the roof was by a metal ladder built into an outside brick wall. Close by, and in the “Common Area”, were an electric pole and uninsulated wires, put up by the Union Electric Company. While coming down the ladder, Murphy came into contact with the wires, received an electric shock, and fell to the ground. Murphy sued Kroger and Union Electric, claiming they were negligent in having the ladder and the wires in dangerous proximity. Kroger demanded that Crosby defend Murphy’s suit, but it declined. Then Kroger and Union Electric jointly settled Murphy’s suit.

Crosby’s motion for summary judgment against Kroger’s petition for indemnity was supported by Murphy’s petition, the lease from Crosby to Kroger, and two contradictory affidavits as to the relative times of construction of the power line and the ladder.

A summary judgment borders on denial of due process, and trial courts are warned to use it cautiously. Cooper v. Finke, Mo., 376 S.W.2d 225(3). There are two requirements for a summary judgment: There must be no genuine issue as to any material fact, and the prevailing party must be entitled to a judgment as a matter of law. VAMR 74.04(c). We will deal with the latter requirement.

Kroger pleaded that Crosby breached the terms of its lease by building and maintaining the ladder and electric wire in dangerous proximity. As quoted above, Crosby was bound to keep the Common Area in good repair. We are not here concerned with a failure to repair, but this part of the lease shows Crosby’s control over the area where the electric line was located. The lease described the “premises” as the entire 4-acre tract. Crosby warranted:

“ * * * that the leased premises will be well-built, properly constructed, and suitable and fit and that they will be so maintained * *

Crosby first argues that its duty as to proper construction and mainténance applies only to the store building, and not to the pole and wires placed near the ladder outside. Considering that the lease defined the “premises” as being the whole tract, we cannot so hold as a matter of law.

Crosby next contends it is not liable because the electric line was placed by Union Electric. Nothing indicates that Kroger selected the location of the electric wire close to the ladder. The lease gives Kroger no such right. For purposes of construction the premises were under control of Crosby, and absent proof to the contrary, it is reasonable to infer that Union Electric located the electric pole and wire as agent of lessor Crosby. In making improvements on the leased premises, Crosby owed a duty of reasonable care to Kroger and its invitees. Crosby could not escape that duty by having the work done by Union Electric. See 52 C.J.S. Landlord and Tenant § 417, p. 45; and compare Vitale v. Duerbeck, 338 Mo. 556, 92 S.W.2d 691(3).

For these reasons, we cannot say as a matter of law that Crosby is not liable to Kroger. It follows that the summary judgment was improperly granted. Kroger makes other attacks on the propriety of the summary judgment, but in view of our conclusion they need not be considered.

The cause must be remanded, with instructions to set aside the summary judgment and reinstate said cause for further proceedings. It is so ordered.

WOLFE, P. J., and RUDDY, J., concur.


author: DOERNER, Commissioner.

text:
    William E. BOOTH, Plaintiff-Respondent, v. QUALITY DAIRY COMPANY, Inc., a Corporation, Defendant-Appellant.
    No. 31889.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.
    Rehearing Denied Sept. 8, 1965.

      Gentry, Bryant & Sheppard, Arnot L. Sheppard, Robert N. Jones, St. Louis, for defendant-appellant.
    Joseph Strubinger, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

William E. Booth instituted this action against Quality Dairy Company, Inc. in two counts. In Count I plaintiff sought to recover actual and punitive damages for defendant’s alleged failure to have complied with Section 290.140, RSMo 1959, V.A.M.S., frequently referred to as our service letter statute; and in Count II plaintiff claimed that defendant was indebted to him in the sum of $557.19 and prayed for judgment for that amount, together with interest thereon. Upon a trial to a jury plaintiff was awarded $1,000 actual damages and $3,000 punitive damages under Count I, and $537.-19 under Count II. Thereafter, in response to an order of remittitur, plaintiff remitted $2,000 of the punitive damages awarded, and a final judgment was entered allowing plaintiff $1,000 actual and $1,000 punitive damages under Count I, and $537.19 under Count II. Defendant brings this appeal, but raises no issue regarding the judgment under Count II.

Plaintiff was employed by defendant in July, 1954 as a home delivery route salesman or retail milk truck driver, and continued in that capacity until he voluntarily quit, on August 4, 1959, to accept employment with the Riverview Fire Protective District as a fireman. He did not seek to obtain a service letter until May 20, 1961, when he mailed a written request therefor to defendant. For reasons which will be subsequently discussed, defendant did not respond in writing until June 20, 1961, on which date it mailed a purported service letter to plaintiff. In the interim, on June 7, 1961, plaintiff began this action. Defendant’s initial assignment is that the court erred in refusing to give its requested Instruction I, by which the jury would have been told that under the law plaintiff was compelled to request a service letter within a reasonable time after he resigned from the employ of defendant, and that having failed to do so, plaintiff could not recover any damages. In support of its contention defendant points out that no time is fixed in Section 290.140 within which the request for a service letter must be made, or within which the employer must issue the letter after a proper request is made. Defendant cites Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980, 987, in which we said that the statute * * * being silent as to the time within which the employer must issue a service letter, the law supplies the deficiency and allows the employer a reasonable length of time after the discharged employee makes a proper request therefor within which to issue a service letter. * * * ” From this, defendant argues that the “same necessity” which demanded the holding in the Heuer case requires us to hold in this case that the former employee must make his request for a service letter within a reasonable time after his employment terminates.

We cannot agree that the situations are analogous, or that the basis for the principle announced in the Heuer case is likewise present in the instant case. The first part of Section 290.140 places a duty upon the employer to issue a service letter when a proper request is made, and gives the former employee a right of action upon the employer’s refusal or failure to do so. Cheek v. Prudential Ins. Co. of America, Mo., 192 S.W. 387, L.R.A.1918A, 166; State ex rel. Terminal R.R. Ass’n of St. Louis v. Hughes, 350 Mo. 869, 169 S.W.2d 328. If the employee’s request is met with an outright refusal his cause of action, of course, arises immediately. But what period constitutes a failure to issue the requested service letter, and how much time must elapse before a cause of action for failure to issue arises in favor of the employee? As to this, the statute is silent. Of necessity, the employer must be given some time in which to fulfill his duty, for the employee should not be permitted to present his written demand one minute and file suit the next. It was with this problem in mind that we held in the Heuer case that the employer must be allowed a reasonable length of time in which to comply with the former employee’s proper request, and that the employee’s cause of action does not arise until such a period has expired. There is, however, no corresponding duty placed upon the former employee by the statute to make a request. He may, if so inclined, never request a service letter, in which event no duty arises upon the part of the employer to furnish one. Nor is there any language in Section 290.140 which by necessary implication indicates that the employee’s request must be made within a reasonable time after his employment terminates, as was said of Section 290.110 in Monterosso v. St. Louis Globe-Democrat Publishing Co., Mo., 368 S.W.2d 481. To hold as defendant contends would require us by judicial legislation to write in to the statute a special limitation on the employee’s right of action where none exists. In the Heuer case the “necessity” to which the defendant refers impelled us to furnish the employer with a shield as a protection against premature actions; but there is no corresponding reason why we should furnish him with a sword with which he may destroy an employee’s legitimate cause of action.

Defendant next contends the evidence did not show that plaintiff was declined employment for lack of a service letter, and that there was no basis in the record for the award of substantial actual damages. In cases of this nature the rule is well-established that to recover substantial actual damages it is incumbent upon the plaintiff to produce evidence that he sought and was refused employment because he did not have a service letter from his former employer. Bubke v. Allied Building Credits, Inc., Mo.App., 380 S.W.2d 516; Heuer v. John R. Thompson Co., supra; Cook v. Mid-Continent Petroleum Corp., Mo.App., 193 S.W.2d 66. While the fact may be established by circumstantial as well as direct evidence, Burens v. Wolfe Wear-U-Well Corp., 236 Mo.App. 892, 158 S.W.2d 175, the circumstances must be such as will sustain the inference to be drawn, and must rise above the level of mere guess and speculation. Bubke v. Allied Building Credits, Inc., supra. In determining the question presented we will view the evidence in the light most favorable to plaintiff, give him the benefit of the reasonable inferences to be drawn therefrom, and, of course, disregard defendant’s evidence unfavorable to plaintiff. Roberts v. Emerson Electric Manufacturing Company, Mo., 338 S.W.2d 62.

Most of plaintiff’s direct examination was concerned with the dispute which developed between plaintiff and defendant over plaintiff’s accounts and plaintiff’s efforts to collect what he claimed was due him, which was the subject of Count II. All that he testified to regarding the matter on appeal was that he had already obtained employment with the Riverview Fire Protective District at the time he submitted his letter of resignation, effective as of August 4, 1959; that he was still so employed at the time of trial; that he requested a service letter on May 20, 1961 because he wanted to secure part-time work in addition to his employment as a fireman; and that in a telephone conversation with Vincent Sanders, defendant’s credit manager, on May 27, 1961, Sanders told him it was not company policy to issue a service letter and suggested that plaintiff have prospective employers telephone him. Not one word was mentioned on direct examination regarding any efforts plaintiff may have made to obtain part-time work, and, curiously enough, that feature of the case was first broached by defendant’s counsel on cross-examination. In brief, plaintiff reiterated his desire to use the letter to obtain part-time employment, particularly as a tile layer’s helper. He admitted that he had started to look for such work before he mailed his request for a service letter, and stated that in January, 1961 he applied to and obtained such employment from Elliott Installations, which continued for a couple of months. Plaintiff also testified on cross-examination that he applied for part-time work at Tile Town, Stix Baer & Fuller, the Spanish Lake Fire Department, and Elliott Installations, but the time when such applications were made was not definitely fixed. Perhaps the nearest approach to any date occurred when defendant’s counsel asked:

“Q You think not. Well, did you apply to any other places for work or jobs? We are talking about this end of it here, in addition to what I mentioned.
“A From, then or until now, or that two month period? I want to get the period you are talking about.
“Q Well, up to the time your deposition was taken which was the 21st of July, 1961? A Yes, yes, yes.
“Q Did you? A Yes.
“Q Where else did you apply? A Did I mention Stix there?
“Q Yes. A And Elliott Installations and Tile Town?
“Q Yes. A I can’t think of any more offhand, Judge, jury.
“Q Well, taking your deposition, when you were asked if you applied anywhere else you said no. That was right? That’s correct, is it?
“A Yes.”

While the “then” in plaintiff’s first answer was not otherwise determined, counsel had previously been using the conversation plaintiff had with Sanders on May 27, 1961 as a point of reference regarding time, and the inference may be drawn that plaintiff had that date in mind when he used the word “then.” Assuming, therefore, that such efforts to obtain part-time employment were made after the conversation with Sanders, the weakness in plaintiff’s case is that he testified that in each instance the prospective employer to whom he applied for work never asked him for a service letter from defendant. For example.

“Q Well, did you look anywhere else for a job — any kind of job full or part-time about that time?
“A About that time I think I applied at Stix.
“Q Stix, Baer & Fuller? A I believe so.
“Q For what kind of work? A Sales work.
“Q And did they ask you for a job — Or for a service letter? A No.”

Thus plaintiff’s own testimony, by which he is bound, clearly showed that he had not been refused employment for lack of a service letter, and the evidence was therefore insufficient to sustain the award of substantial actual damages. Bubke v. Allied Building Credits, Inc., supra; Cook v. Mid-Continent Petroleum Corp., supra. It follows that the judgment for more than nominal actual damages for the invasion of plaintiff’s legal right cannot be allowed to stand. Heuer v. John R. Thompson Co., supra; Cook v. Mid-Continent Petroleum Corp., supra.

Defendant also contends that the evidence was insufficient to justify the submission to the jury of the issue of punitive damages. Plaintiff’s submission, it should be said, was on the theory of legal malice. As to this feature of the case the evidence showed that the written request of May 20, 1959 which plaintiff mailed to defendant was referred to Sanders, and that, as previously stated, Sanders telephoned plaintiff on May 27. There was a sharp dispute in the testimony regarding what was said during that conversation. Plaintiff’s version, in brief, was that Sanders told him that his request for a service letter had been received, and asked why plaintiff wanted such a letter. Plaintiff replied that he wanted it so that he could obtain part-time work as a tile layer’s helper. Sanders then said, according to plaintiff, that it was not the defendant’s policy to issue such letters and suggested that plaintiff have prospective employers telephone him. Plaintiff protested, saying, “ * * * ‘Mr. Sanders, I still want that service letter.’ * * * ” Sanders, who had been in the employ of defendant for 28 years as credit manager, testified that at the time he received plaintiff’s request he did not know “there was such a thing as a service letter,” and was unaware of the law making it the duty of an employer to furnish such a letter. His explanation was that he thought that by asking for a “service letter” plaintiff was requesting a letter of recommendation, and that he prepared one for the signature of Richard Aubuchon, defendant’s retail route sales manager; that he telephoned plaintiff to ascertain whether plaintiff wanted the letter of recommendation addressed to a particular prospective employer, rather than “To Whom It May Concern”; that he inquired of plaintiff whether he was still with the fire department or was taking another job; that plaintiff told him he was keeping his job with the fire department but wanted to do some tile business on the side; that he then informed plaintiff that plaintiff didn’t need a letter of recommendation, what he needed was a credit reference to buy tile; that he advised plaintiff to “ ‘ * * * Tell the tile people to call us and we will be glad to give you credit reference’ * * and that plaintiff said that was Okay with him. On rebuttal, plaintiff denied that he told Sanders he was going into the tile business, and denied that Sanders made any mention of a credit reference.

In its argument regarding the claimed insufficiency of the evidence defendant commits the common error of ignoring the evidence favorable to the plaintiff, and of assuming that its own evidence was conclusive as a matter of law. Sanders’ testimony regarding his version of the telephone conversation was not only not conclusive as a matter of law, but the jury was entitled to reject all or any part of it. Bubke v. Allied Building Credits, Inc., supra. Plaintiff testified that following his written request for a service letter Sanders telephoned him and told him that it was contrary to the defendant’s policy to issue such letters and suggested that plaintiff have prospective employers telephone him. By plaintiff’s Instruction No. 1 the jury was required to find, and by its verdict it did find, that thereby defendant refused, and intended to refuse, to issue a service letter to plaintiff. We hold that under the authorities such evidence was sufficient to justify the submission to the jury of the issue of punitive damages on the theory of legal malice. Roberts v. Emerson Electric Manufacturing Co., Mo., 338 S.W.2d 62; Bubke v. Allied Building Credits, Inc., supra; Stephens v. Lever Bros. Co., Mo.App., 155 S.W.2d 540; Bourne v. Pratt & Whitney Aircraft Corp. of Mo., Mo.App., 207 S.W.2d 533; Davenport v. Midland Bldg. Co., Mo.App., 245 S.W.2d 460.

Alternatively, defendant also contends that if its defense to the claim for punitive damages was not sufficient as a matter of law, it was sufficient to require submission to the jury; that it endeavored to submit its defense by offering Instructions D, E, and F; and that the court erred in failing to give at least one of them. For reasons which need not be discussed we are of the opinion that Instructions D and E were erroneous and that the court did not err in refusing to give them. But we believe that defendant is on firmer ground regarding the refusal to give Instruction F. While the instruction is no model, it told the jury, in substance, that if it found that Sanders had no knowledge of the law which required defendant to furnish a service letter, and that he acted in good faith and in the honest belief that his actions respecting the letter were lawful, then it could not find that he acted wrongfully and without just cause and excuse, and could not allow plaintiff punitive damages. Legal malice, the theory upon which plaintiff submitted his claim for punitive damages, is defined as the intentional doing of a wrongful act without just cause or excuse. Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095, 37 L.R.A.,N.S., 533; State ex rel. United Factories, Inc. v. Hostetter, 344 Mo. 386, 126 S.W.2d 1173. Lack of knowledge of the law and good faith may not be a defense to the employee’s claim for actual damages resulting from the employer’s violation of his statutory duty to furnish the requested service letter. Roberts v. Emerson Electric Manufacturing Co., Mo., 338 S.W.2d 62; Bubke v. Allied Building Credits, Inc., supra. But as was said in Hall v. St. Louis-San Francisco R. Co., 224 Mo.App. 431, 28 S.W.2d 687, 691, “The party must know that the act is wrongful and must do it intentionally without just cause or excuse. If he acts in good faith and in the honest belief that his act is lawful, he is not liable for punitive damages even though he may be mistaken as to the legality of his act.” To the same effect see Lampert v. Judge & Dolph Drug Co., supra; Thomas v. Commercial Credit Corp., Mo.App., 335 S.W.2d 703; Franta v. Hodge, Mo.App., 302 S.W.2d 291; Patrick v. Employers Mut. Liability Ins. Co., 233 Mo.App. 251, 118 S.W.2d 116; Bean v. Branson, 217 Mo.App. 399, 266 S.W. 743. By refusing to give Instruction F the court deprived defendant of the right to submit to the jury its defense to the claim for punitive damages, and in so refusing, it erred.

Other matters complained of by defendant can be considered and remedied by the plaintiff where necessary on a retrial of the case.

For the reasons stated the judgment should be affirmed as to Count II and should be reversed and the cause remanded for a new trial as to Count I. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed as to Count II and reversed and the cause remanded for a new trial as to Count I.

ANDERSON, (Acting) P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.


author: WOLFE, Acting Presiding Judge.

text:
    Richard C. PEARCE, Relator-Appellant, v. J. J. LORSON, Chairman, R. G. Greise, William Maier, T. Czarnecki and E. Eikermann, in their capacity as members of the Board of Adjustment of the City of Flordell Hills, and the Board of Adjustment of Flordell Hills, Respondents, and Herman Nieland and Della Nieland, Intervenors.
    No. 31719.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.
    Rehearing Denied Sept. 8, 1965.

      Paul Simon, Floyd McBride, Thomas F. McGuire, St. Louis, for relator-appellant.
    John J. Shanahan, St. Louis, for respondents.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Shulamith Simon, St. Louis, for intervenors.
   WOLFE, Acting Presiding Judge.

This matter originated before the Board of Adjustment of the City of Flordell Hills. The Building Commissioner of the city had issued an occupancy permit to Richard C. Pearce, a chiropodist, for the occupancy and use of a building as a doctor’s office. Mr. and Mrs. Herman Nieland had requested the Building Commissioner to revoke the permit, and upon his refusal to do so they filed an appeal with the Board of Adjustment of the City of Flordell Hills. A hearing was held on the appeal, and the Board revoked the permit. Pearce then brought an action by way of certiorari in the Circuit Court of St. Louis County, in an effort to reverse the order of the Board of Adjustment. The Circuit Court affirmed the order of the Board, and Pearce prosecutes this appeal.

The property in question is a five-room brick house built for residential occupancy. It is located at 7051 West Florissant Avenue. This is a residential area zoned as Class B, which is for single family dwellings. On April 12, 1957, the zoning of this district was changed so as to permit it to be used, not only as a single family dwelling area but also permitted medical offices and clinics. This remained in effect until March 10, 1961, when an ordinance was passed again limiting the area to single family dwellings, and specifically prohibiting medical offices and clinics.

Herman Nieland and his wife lived at 7055 West Florissant Avenue. This house is next door to 7051, the property here under consideration. They had lived there since 1942. During that time the house at 7051 had only been used as a single family residence. In January, 1961, they noticed that a sign had been placed on the front lawn of the house next door, offering it for sale “For Doctor’s or Medical Clinic”. Mr. Nieland then got in touch with one of the Aldermen and found out, for the first time, that the property was then zoned so that a doctor’s office or clinic could be established. Mr. and Mrs. Nieland and others met with the Board of Aldermen and presented a petition for a change in the zoning law, so that the area would be in Class A, which would restrict it solely to single family residences. Such an ordinance was passed by the Board and signed by the Mayor at 10:30 P.M. on March 10, 1961.

On March 1, 1961, Richard C. Pearce, the chiropodist and Relator-Appellant herein, entered into an earnest money contract to purchase the property at 7051 for the sum of $17,250. On the 7th of March he applied for and received an occupancy permit to use and occupy the building as a doctor’s office. On the 10th day of March, 1961, the same day that the ordinance rezoning the property was enacted, the sale was consummated.

On March 10, Mr. and Mrs. Nieland requested the Building Commissioner to revoke the occupancy permit that he had issued on March 7. He refused to do so, and on April 14, the Nielands appealed to the Board of Adjustment of the City of Flordell Hills. On April 27 the appeal was heard. As a defense to the action Pearce set up a claim that he occupied the building as a doctor’s office prior to the ordinance of March 10 and thereby established a non-conforming use of which he could not be divested.

Mr. and Mrs. Nieland testified before the Board of Adjustment to the facts as set out above and they also testified that the house in question was not occupied by Pearce until the last of March or the first part of April. Mrs. Nieland testified that the house was without water or heat until the last of March and at that time furniture and equipment was moved in.

Pearce testified to the facts above stated in relation to the purchase of the property. As to the time he occupied the place as an office for the practice of chiropody he stated that at the date of purchase he maintained an office at 7120 West Florissant Avenue. He continued his practice from 7120 West Florissant Avenue until the end of March. He stated that on the First of March he put a sign in the window at 7051 which read “Dr. R. C. Pearce, Chiropodist, Foot Specialist” and moved in a treatment chair and some supplies. A friend, who helped him move in the chair, said some supplies were there. There were no other chairs or seats for patients.

Pearce testified that a patient named Ganninger phoned for an appointment on March 10 and he directed him to come to 7051 West Florissant. He arrived there about 8:45 P.M. and Pearce treated his feet. Pearce also said, that a man who came to the place to figure on some alterations, talked to him about “fatigue”. He billed Ganninger for his services, but he did not bill the other person mentioned. There was testimony that the house was worth $1,750 to $2,250 more as an office building than as a dwelling.

Upon the foregoing evidence the Board of Adjustment found that Pearce had not established a non-conforming use and revoked the occupancy permit. As stated, this action was brought by Pearce to review and reverse the ruling of the Board of Adjustment but the Circuit Court affirmed the Board’s ruling and Pearce prosecutes this appeal.

It is here contended that the trial Court erred in affirming the ruling of the Board of Adjustment in “that the undisputed evidence” showed that Pearce had established a non-conforming use prior to the passage of the ordinance. The scope of judicial review of orders of the Board of Adjustment, both in the Circuit Court and here, is limited to the determination of whether or not, in the proceedings before the Board, there was competent and substantial evidence to support the findings of the Board. Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, Cunningham v. Leimkuehler, Mo.App., 276 S.W.2d 633, Beckmeyer v. Beuc, Mo.App., 367 S.W.2d 9. With this rule of review before us we find that the Circuit Court properly affirmed the finding of the Board. The only evidence which the Board had that related to any nonconforming use was the fact that Pearce had directed a patient to come to the house instead of his regular office and about an hour before the ordinance was passed treated the patient there. Pearce had also put a sign in the window and had moved in a chair. This did not establish a use but appeared to be nothing more than a sham effort to do so. Veal v. Leimkuehler, supra, State v. Wind, Mo.App., 309 S.W.2d 663.

It was also asserted here that Pearce had a vested right by reason of the fact that he had purchased the house and obtained an occupancy permit prior to the time that the ordinance was passed. The question of a vested right to the use of property has been exhaustively considered in a recent opinion by the Missouri Supreme Court, Hoffmann v. Kinealy, Mo., 389 S.W.2d 745. Therein the Court was dealing with the amortization provision of an ordinance relating to non-conforming uses and it held the amortization provision unconstitutional because there was a vested right in the property owner by reason of an established non-conforming use. It appears quite obvious that a vested right to a non-conforming use cannot exist unless the non-conforming use is first established. The granting of the permit did not give Pearce any vested right. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720. Veal v. Leimkuehler, supra.

In the Circuit Court appellant, Pearce, amended his petition for review by asserting that it had come to his attention after the hearing before the Board that William C. Maier, one of the five members of the Board of Adjustment, was biased and prejudiced against Pearce. The only evidence introduced to support this was the deposition of Mr. Maier. The deposition disclosed that he was 27 years of age, lived with his parents on Manette Drive in Flordell Hills. This was not in the area here under consideration and Maier owned no property in the area. In February, 1961, he held no office in the City of Flordell Hills. He was asked by a friend to attend a meeting of the Board of Aldermen. He thought when he went to the meeting that the property here under consideration was zoned exclusively for dwelling purposes and that the Board was considering re-zoning it. When he arrived at the meeting there were about 25 persons present arguing about the house at 7051 W. Florissant being advertised for sale as a medical office. The City Attorney explained to them that no change in the zoning had taken place and if those present wanted the area for residential use exclusively they should petition the Board of Aldermen to pass a new zoning law.

The City Attorney asked Maier to draw up a petition for those present and Maier did so and signed it himself. He knew that a new ordinance would not eliminate any established nonconforming use. On April 14 the Mayor of Flordell Hills called him and told him that there was a vacancy on the Board of Adjustment and asked him if he would serve. He agreed to and sat as a member of the Board when it heard the appeal to revoke Pearce’s occupancy permit.

The appellant cites us to Weston Benefit Assessment, etc., Mo.App., 294 S.W.2d 353, as authority for his contention that Maier was disqualified as a matter of law from sitting as a member of the Board. In the Weston Benefit Assessment case a county judge signed a petition to dis-incorporate a road district in which he owned real estate. The petition was to the County Court of which he was a member, and refusing to disqualify himself, he sat with the Court and voted in favor of the petition of which he was a signer. We have no such situation here. Maier had nothing more than a civic interest in seeking the ordinance change. He had no official part in changing it and the only question before the Board of Adjustment on which he sat was whether or not a non-conforming use had been established. There is no evidence that his interest was such that he could not pass upon that question without bias.

From all the foregoing we conclude that the Circuit Court properly affirmed the ruling of the Board of Adjustment and the judgment of the Circuit Court is affirmed.

ANDERSON, J., and L. F. COTTEY, Special Judge, concur.

RUDDY, J., not participating.


author: HILL, Judge.

text:
    C. R. DINWIDDIE et al., Appellants, v. URBAN RENEWAL AND COMMUNITY DEVELOPMENT AGENCY OF LOUISVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.

      James T. Robertson, Louisville, for appellants.
    Charles J. Lunderman, Jr., Robert W. Zollinger, Louisville, for appellee Urban Renewal.
    Francis Pearl, Louisville, for Layman Bros. Wrecking Co. and Frank Layman.
   HILL, Judge.

This is an appeal by C. R. Dinwiddie and Belle Liddell Dinwiddie, his wife, from a verdict and judgment of $77,250 in a condemnation proceeding instituted by appellee, Urban Renewal and Community Development Agency of Louisville, against the said appellants and the Phillips Petroleum Company, lessee.

Appellee, Urban Renewal, sought to condemn a lot 95w/n x 200 feet, with a filling station thereon on the southeast corner of Seventh and Chestnut Streets in the city of Louisville.

Appellant’s brief, under “Statement of the Questions Presented,” presents twelve grounds for reversal. We shall not catalog them here but discuss such ones as we believe merit discussion.

This proceeding under KRS 99.420 is unlike our highway condemnation statutes, in that, this proceeding was filed originally in the Jefferson Circuit Court and the circuit court appointed commissioners. The commissioners so appointed allowed appellants $81,500. Appellants filed no exceptions to the commissioners’ report. It was 133 days from the filing of the suit until appellants filed their answer and counter-claim making Layman Brothers Wrecking Company and Frank M. Layman third-party defendants. In the meantime, the case had been tried in the circuit court and a verdict of $77,000 returned by the jury. Due to illness of the appellants, the trial court set aside the first verdict and judgment and granted a new trial. The trial court also entered an order allowing the answer to he treated as exceptions to the report of the commissioners. It may be observed also that appellants did not appear at the second trial and have been represented in most of this litigation by an attorney-in-fact. Appellants first question the constitutionality of KRS 99.420.

KRS 99.330 to 99.590 were enacted in 1950 to provide statutory authorization for urban renewal and redevelopment in the State of Kentucky. The purpose of such legislation, as announced in the statute, was to “promote the health, safety, and welfare of the people of the Commonwealth and particularly of the communities in which slum areas and blighted areas exist by the elimination of slum conditions and conditions of blight.”

The foregoing statute was upheld by this Court in Miller v. City of Louisville, Ky., 321 S.W.2d 237 (1959).

The United States Supreme Court also upheld the constitutionality of a similar redevelopment act in the case of Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).

Appellants contend that their property was well kept, income producing and was in no way or manner to be classified as slum property and for that additional reason their property could not be taken without their consent.

In the Miller case, supra, it is said:

“While it is true that individual pieces of property in an affected area may be safe, sanitary and useful properties, yet their acquisition may be necessary to the accomplishment of the over-all plan.”

This Court is now obliged to follow the ruling in the Miller and Berman cases, supra.

Appellants complain they were not allowed a review of determination by the Louisville Board of Aldermen that the area within the “West Downtown Renewal Area was slum or blighted area.” We have carefully examined the issues presented by the answer and cross-claim and do not find any allegation that the action of the Louisville Board of Aldermen was arbitrary in its classification of appellants’ property in its inclusion in the area in question. At any rate, a pretrial conference was held in this case, a transcript of which containing 55 pages has been filed with and made a part of this appeal. In this pretrial conference the trial judge plainly determined “That I would rather now decide this case that the Urban Renewal has a right to condemn this property * * * and that leads up to the final conclusion that this case will be ready for trial on its merits of the value on October 6th.”

Again, during the trial before the jury, the court made this observation: “All right. That’s a legislative matter and I will not pass on it.” Had the question been properly raised in the trial court, that court would have been limited to a judicial review to discover whether or not the inclusion of the subject property was arbitrary, made in bad faith or was in excess of the powers conferred by the statute. Justice Douglas wrote in Berman v. Parker, supra, that:

“It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to he taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.”

See also State ex rel. Dalton v. Land Clearance for Redevelopment Authority of Kansas City, Mo., 270 S.W.2d 44, 52 (1954); Wilson v. City of Longbranch, 27 N.J. 360, 142 A.2d 837, 847 (1958); and Schenck v. City of Pittsburg, 364 Pa. 31, 70 A.2d 612, 614 (1950).

Had the contention been made that the ordinance was arbitrary or made in bad faith or that the area was not a blighted or slum area we think the burden would have been upon the appellants to substantiate such an allegation. This record does not show the appellants met such a burden. We conclude the trial court was correct in determining, as a matter of law, that the ordinance classifying the area as a slum area was valid in this respect.

Appellants complain because the report and award of the commissioners did not award any amount for improvements. Their report allowed the appellants $81,-500 for land taken and the space provided for improvements contained the typewritten words “Not included.” It is not clear whether the three commissioners did or did not intend the amount allowed for the land to include the improvements. We think, in view of their later testimony, they intended to include improvements. It is immaterial anyway because this Court has repeatedly held that the report of the commissioners is incompetent on the trial of the case before the jury. This complaint is without merit.

Appellants also complain that Garrette A. Emerson, Jr., was a necessary party and was not made a party defendant. The evidence shows that he transferred such interest as he had in the lease to the Phillips Petroleum Company and the latter was made a party in the original complaint. This contention, we think, is likewise without merit.

Perhaps the most stentorian objection is made to the amount of the verdict. As noted heretofore, the verdict was about $4,000 less than the award of the commissioners. However, the verdict was $5,000 more than the value fixed by the witness, Goodman. This witness used several comparable voluntary sales in the near vicinity of the subject property. It is true that a number of the witnesses for appellants testified the value of the property in question was well over $100,000. The value was sharply in issue and presented a question for the jury’s determination. Again, we say the jury’s verdict was not so inadequate as strike the mind at first impression as being grossly inadequate. We conclude appellants are not entitled to a new trial on this ground.

This Court is urged by appellants, in the alternative, to invoke the doctrine of “Additur,” and raise the judgment to $95,000 on the theory Urban Renewal was authorized by its Atlanta office to offer this amount in purchase of the property in question. There was some discussion in chambers, before trial, that counsel for appellees “had authority to offer” $95,000. No such offer was made or accepted. Certainly, there was no offer made that would rise to the dignity of a tender or a judicial admission. Offers of compromise have generally never been admissible in evidence. Commonwealth, Dept. of Highways, v. Smith, Ky., 358 S.W.2d 487 (1962). Commonwealth, Dept. of Highways, v. Raleigh, Ky., 375 S.W.2d 384 (1964). Certainly, we cannot now dignify offers of compromise or “authority” to compromise as a basis for invoking “Additur,” or as constituting a judicial admission. This jurisdiction has never adopted the doctrine of “Additur.”

Appellants contend the trial court erred in giving summary judgment for Layman Brothers Wrecking Company, and Frank M. Layman. These parties were brought in by appellants, as noted above, on a charge they violated appellants’ constitutional rights to keep their property intact pending appeal. The trial court entered an order authorizing the said parties to proceed with wrecking operations after the amount of the commissioners’ report and award had been paid to the clerk of the court. True, Judge Schmidt, in the absence of Judge Downing, entered an order setting aside the first order authorizing possession of the property and wrecking operations, but the wrecking complained of had already been done under proper order of the court and did not justify any recovery of damages therefor. The court had the power under the statute to authorize possession upon payment into court of the award of commissioners.

Grievous error is assigned to the order overruling appellants’ motion to read to the jury interrogatories propounded to J. D. Leeth, Executive Director of the Urban Renewal Agency in Louisville. Although we are furnished with no avowal or with the interrogatories, we gather from briefs for both parties that it was sought to show the selling or offering price of a tract, including the tract or a part of the tract here in question, to the Federal Government. Such evidence is clearly incompetent. Likewise, other purchases by Urban Renewal in the area were incompetent. Commonwealth of Kentucky, Department of Highways, v. Transamerican Freight Lines, Ky., 388 S.W.2d 574 (1965), wherein this Court said:

“Kentucky law has consistently recognized that sales consummated under these circumstances (sales to Urban Renewal) are not competent evidence of ‘fair market value.’ ”

During the trial a question was raised before the jury whether the property in question was a “blighted” or “slum” area. In ruling on such question, the following exchange occurred:

“The Court: Objection sustained. The ruling has been made by the Board of Aldermen that this is a slum or blighted area? I am asking Mr. Zollinger. (Counsel for Urban Renewal).
“Mr. Zollinger: This is declared to be a blighted area by the Board of Aider-men—
“Mr. Robertson: Counsel, if Your Honor, please, is making a statement here, and he is making the decisions.
“The Court: No, the Board of Aider-men has ordered that, and we are not reviewing that question.”

Appellants insist such comments by the trial judge in the presence of the jury were prejudicial to them, in that, the judge allowed counsel for Urban Renewal to answer the question, and upon the answer he announced the ruling. The trial judge went on to admonish the jury it was only trying the question of value. We think this occurrence was in no way prejudicial.

Finally, appellants assert the order of July 14, 1964, setting aside the judgment and granting a new trial because of the illness of appellants during the first trial was intended also to set aside the “interlocutory” judgment granting possession to Urban Renewal, and authorizing the wrecking of the buildings thereon. We think it is immaterial what the court intended by this order. Appellants were given a new trial. What occurred between the first judgment and the order of July 14th was duly authorized by proper order and appellants cannot complain. Appellants were timely apprised of the issue on September 25, 1964, eleven days before the trial date. We fail to see anything prejudicial in the order of July 14th. In fact, it was for the sole benefit of appellants.

Point 6, under “Statement of Questions Presented,” mentions the “date of taking” fixed by the trial court to" be March 27, 1961. The trial was commenced October 6, 1964. No contention is made that such “date of taking” was in any way prejudicial, for on page 40 of appellants’ brief it is said: “Our point No. 6 is not too important on the date to fix the value of the property as of March 27, 1961, for we proved that the value was the same in 1961 as in 1964.” Although the date of taking was erroneously fixed by the trial court, under Tharp v. Urban Renewal & Community Development Agency, Ky., 389 S.W.2d 453 (1965), yet, we conclude the error was harmless in view of the proof and the admission above.

A great many other points are superficially touched upon in appellants’ brief which we have considered and found without merit. The judgment is affirmed.


author: STEWART, Judge.

text:
    Woodrow W. RUNYON, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Rehearing Denied Oct. 1, 1965.

      Jean L. Auxier, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., J. T. Frankenberger, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Appellant, Woodrow W. Runyon, Sr., was convicted in the Pike Circuit Court under an indictment charging him with submitting a false claim to the Pike County Board of Education. See KRS 434.240. He was given one year in the penitentiary. It is from this conviction and his subsequent sentence that he appeals. The grounds urged for reversal of the judgment are:

1. No public offense was charged: (a) KRS 434.240 does not apply because a school district is not a political subdivision of the state; and (b) the indictment does not charge the offense defined by the statute.

2. There was a variance between the allegations of the indictment and the proof.

3. The procedure followed by the Commonwealth denied him his state and federal rights to a speedy trial.

4. He has been subjected to double jeopardy by the herein conviction.

We shall answer each of these questions in the order presented.

Up until the approximate time the indictments hereinafter mentioned were returned by the grand jury, appellant was the supervisor of school buses for the Pike County Board of Education. One of his duties as such was to purchase parts for the repair of the buses owned and operated by the Board and to submit claims therefor to it for approval and payment.

At a date not set forth in the record, he began the practice of submitting false claims from a nonexistent auto-parts firm by the name of “Curtis Auto Parts” at Williamson, West Virginia. He would present the false invoice to the Board and it would approve it. He would then write the word “hold” on this invoice, thus instructing the finance officer of the Board (who mailed out the Board’s checks) to hold the check for appellant to personally pick up. He would then obtain the check and deposit it in the First National Bank of Williamson, West Virginia, under the fictitious name of “T. C. Curtis, Curtis Auto Parts.” One spurious invoice dated June 4, 1963, was for $452.25 and it is this transaction that is the basis for the indictment and conviction involved in this appeal. This particular invoice and a check for the amount mentioned were not held to be picked up later by appellant but were mistakenly mailed by the finance officer to “Curtis Auto Parts” at Williamson, West Virginia. The envelope and its contents came back stamped, “Addressee Unknown,” and subsequent investigation carried out by the Board unfolded appellant’s numerous alleged fraudulent acts.

On January 9, 1963, appellant was indicted by the grand jury for embezzling $18,178.01, this being the total amount he is accused of abstracting from the Board. He entered a plea of not guilty on January 14th. After a general continuance the case was set for trial on June 17, 1963. At Some time before June 15th, the grand jury returned thirty-two indictments against him for submitting false claims “to the Pike County Board of Education, a political sub-division of the Commonwealth of Kentucky.”

On June 15th the Commonwealth’s attorney filed a motion to dismiss the embezzlement indictment for the reason that the thirty-two false-claim indictments covered the same money alleged to have been embezzled; and that the offenses of submitting false claims, not the offense of embezzlement, were the alleged crimes for which he should be tried. On June 17th the circuit judge overruled this motion and, over the strenuous objections of the Commonwealth’s attorney, proceeded to trial on the embezzlement charge. The Commonwealth’s attorney refused to prosecute under this charge and introduced no evidence. Also, no evidence was introduced on behalf of appellant. The jury, after being instructed, retired and came back with a not-guilty verdict.

In November of 1963 Runyon was tried on one of the thirty-two indictments for submitting a false claim, namely, the one mentioned above involving $452.25, and was convicted.

Appellant’s contention that KRS 434.240 does not apply because, as claimed, the Pike County school district is not a political subdivision of the Commonwealth of Kentucky, is refuted by both the statutory and the case law of this state. We need only set forth brief statements from some of the authorities in order to settle this issue definitely. KRS 61.420(5), in defining a political subdivision, states that it includes “counties, municipal corporations, and school districts.” The case of Board of Education of City of Corbin v. City of Corbin, 301 Ky. 686, 192 S.W.2d 951, 952, states as follows: “Although some of the independent districts are coterminous with cities of the Commonwealth, each is a municipality or political subdivision separate and distinct from such a city.” (Emphasis added.) Board of Education of Louisville v. Society of Alumni of L.M.H.S., Inc., Ky., 239 S.W.2d 931, makes this relevant statement: “In this state public education has long been recognized as a function of state government, and members of boards of education have been held to be state officers.” See also City of Louisville et al. v. Board of Education of Louisville, 302 Ky. 647, 195 S.W.2d 291, and City of Louisville v. Commonwealth, 134 Ky. 488, 121 S.W. 411.

Thus, the only conclusion possible is that the Pike County school district is a political subdivision of this state, the members of which are state officers, and it follows that the indictment drawn under KRS 434.240 did charge a public offense.

As a subdivision of his first point appellant also maintains the indictment is defective because it fails to allege a specific intent to commit the crime. KRS 434.240 denounces three things in connection with any claim made against the state or any political subdivision thereof: (a) Making a false and fraudulent statement of an account; (b) fraudulently omitting to make a true statement of an account; and (c) altering a statement after it has been accurately made. This statute then says, in part, there must be a fraudulent intent: First, “to conceal the true condition of the account;” or secondly, “to acquit any person of such an account;” or thirdly, “to obtain or to enable any other person to obtain money or other movable thing of value from the state or any political subdivision of the state when the person was not entitled to the money or any other movable thing of value.”

In this case the gravamen of the crime purportedly committed was the falsification of a claim against a political subdivision. The indictment in substance averred that appellant submitted “a false claim in the sum of $452.25 and, as a result, caused the Pike County Board of Education to pay that amount.”

The indictment, pursuant to RCr 6.10 (3), “shall state” the particular statute under which the indictment was drawn, but an error in or omission of the citation relied upon is not a ground for dismissal of the indictment or reversal of a conviction, unless such error or omission misleads a defendant prejudicially. Subsection 1 of this Rule states that “the caption shall be a part of the indictment.” Under subsection 2 of the same Rule an indictment is sufficient if it contains a “plain, concise and definite statement of the essential facts” that constitute the particular offense “with which the defendant is charged.”

As the purpose of an indictment is to apprise the accused, with reasonable certainty, of the offense charged, it seems clear that such was done here. Under the provisions of RCr 6.10, which we have noted above in detail, it becomes unnecessary to restate all the technical requisites of the crime of which a defendant is accused, if the language of the indictment, coupled with the applicable statute, unmistakably accomplishes this end result.

Appellant next asserts there is a variance between the allegations of the indictment and the evidence introduced. He maintains that, whereas the indictment avers the claim he submitted caused the Board to “pay the sum of $452.25 to said Curtis Auto Parts,” the Commonwealth’s own proof reveals the Board made no actual outlay of money on this claim. A reading of KRS 434.240, the statute under which appellant was indicted, will disclose that the actual receiving of the money by the perpetrator of the act is not an element of the offense of submitting a false claim. The alleged criminal act, in the case at bar, was the submission of a false account to the Board. It was unnecessary to cash in on the fraud, which was attempted but foiled, in order to make the crime complete. The case of Braswell v. Commonwealth, Ky., 339 S.W.2d 637, states: “Generally, a variance between the indictment and the proof is not regarded as material unless it misleads the accused in making his defense or exposes him to danger of a second conviction of the same offense.” Appellant does not contend in the present case that he was misled by the indictment to the extent that he was unable to resort to the proper measures to protect himself. We conclude this point is groundless.

Appellant’s next complaint is that he was denied a speedy trial, and thus there was a violation of the right guaranteed him in this respect by the Sixth Amendment to the Constitution of the United States and Section 11 of the Constitution of Kentucky. The record discloses the indictment was returned in June of 1963 and appellant’s trial was in November of 1963. This Court has held that a man indicted in May, 1954, and tried in November, 1955, was not deprived of the benefit of a speedy trial. See Clark v. Commonwealth, Ky., 293 S.W.2d 465. Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643, relied upon by appellant is distinguishable from the present case.

Appellant’s final contention is that he has been put in double jeopardy by his conviction of the offense in this case. He, in effect, argues that his acquittal under the embezzlement indictment is a bar to this action. In Moss v. Jones, Ky., 352 S.W.2d 557, 558, this Court defined double jeopardy in this concise manner: “In plain language, the doctrine is that a person may not be tried or prosecuted the second time for the same offense.” Braswell v. Commonwealth, Ky., 339 S.W.2d 637, 638, said: “The ‘same offense’ within the constitutional meaning does not signify the same offense by name or designation but has been defined as the same criminal act or omission.” In Easley v. Commonwealth, Ky., 320 S.W.2d 778, 779, this statement appears: “The test to determine whether the acts committed at the same time and place constitute one or more offenses is, if proof of what is set out in the second indictment made on the trial of the first indictment would sustain it, then the two indictments are for the same offense. If what is set out in the second indictment when proved upon the trial of the first will not sustain it, then they are distinct offenses, and the conviction or acquittal of either is not a bar to the other.”

We have heretofore detailed the main ingredients which constitute the offense of falsifying a claim against a political subdivision. Embezzlement, simply stated, is a fraudulent conversion of personal property after its possession has been lawfully acquired. See Roberson’s New Kentucky Criminal Law and Procedure (2nd Ed.) sec. 897, p. 1117. See also subsections 1 and 2 of KRS 434.220. Both falsifying a claim against a political subdivision and embezzlement are statutory offenses. It is readily apparent different elements make up each crime.

Applying the principles of law to the facts in this case, we are of the opinion that embezzlement and submitting a false claim to a political subdivision are separate offenses. If the elements of the latter were established at the embezzlement trial, they would not sustain the embezzlement charge, hence an acquittal under an indictment for either would not be a bar to an indictment for the other.

Wherefore, the judgment is affirmed.


author: PER CURIAM.

text:
    In re Russell PORTER.
    Court of Appeals of Kentucky.
    May 21, 1965.
    Rehearing Denied Oct. 15, 1965.

      Redford H. Coleman, Frankfort, for complainant.
    Ben B. Fowler, Frankfort, for respondent.
   PER CURIAM.

This is a disciplinary proceeding against attorney Russell Porter, of Maysville, In which the Board of Governors of the Kentucky State Bar, Association has recommended a six-month suspension.

The Trial Committee found that Porter had induced and coerced his youthful, female secretary to make a false affidavit accusing a former client of Porter’s of a criminal offense against the secretary, the motive being to obtain a warrant which would be used by way of a threat to deter the client from pursuing a certain monetary claim he was asserting against Porter. There was sufficient evidence to support the finding.

The taking by the Trial Committee of the secretary’s deposition two days after the charge was filed against Porter did not constitute the premature holding of a “trial” in violation of RCA 3.340, and in any event no prejudice to any substantial right of Porter’s is claimed to have resulted. See RCA 3.410.

The Trial Committee, while recognizing the gravity of Porter’s misconduct, felt that a six-month suspension would be an adequate sanction in view of Porter’s advanced age and the fact that he has ceased the active practice of law. It is the opinion of this Court, however, that Porter’s offense was such a gross violation of professional standards as to require his disbarment.

It is ordered that the respondent Russell Porter be and he is hereby disbarred from further engaging in the practice of law in Kentucky.


author: DAVIS, Commissioner.

text:
    Howard F. SMITH, Appellant, v. Ervin AKERS and Allen W. Akers, Partners Doing Business as Akers & Akers Contractors, Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Rehearing Denied Oct. 15, 1965.

      Joe Hobson, Prestonsburg, Joseph J. Leary, Thomas F. Marshall, Frankfort, for appellant.
    Howard, Francis & Howard, Prestons-burg, for appellees.
   DAVIS, Commissioner.

Howard F. Smith sustained personal injuries when a short flight of steps he was using collapsed. The steps had been installed at Jenny Wiley State Park by the appellees, Akers and Akers, who had the construction contract at the park facility. A jury awarded appellant $40,000, but the trial court granted appellees a judgment n. o. v. following motions by appellees for new trial or judgment n. o. v. as permitted by CR 50.03.

Appellant seeks to reverse the judgment so granted and have judgment for $40,000 in lieu of it. The pivotal questions are whether appellees were negligent, and, if so, whether their negligence was superseded by the intervening action of a third person not under their control.

The flight of stairs involved in this action ascends from an elevated concrete landing to a passageway serving bedrooms. There are seven treads in the section of stairs. The original drawings for the construction provided that this section of stairs should have treads four feet wide, and the carriages or stringers supporting the treads were to be anchored at the base by sleeves fitting over pipes inserted into the concrete landing. Appellees, as contractors, set the pipes in the concrete so as to accommodate the four-foot carriages. Without fault of appellees the width of the treads for these stairs was changed to 5' 9"; accordingly, the pipes which had been set to receive the tread carriages at four feet on center were not suitable for the carriages supporting the wider treads.

For appellees it was shown that about six weeks before the accident the flight of stairs was set in place, on a temporary basis. The treads were mortised into the carriages prior to installation; then the entire framework was set up. This was accomplished by lifting the stairs so that the top of them rested against the header of the upstairs passageway. According to the carpenter who installed the steps originally (confirmed by Ervin Akers, one of the appellees), the top of the steps was thus secured: “Well, the top of the steps was cut and notched, where they went up against -the header across there they was notched to where they would sit under the floor, and they were notched out an inch-and-a-half, I think, both ways, where they go up flush against the wall.” Witnesses for ap-pellees stated that the top of the stairs was so affixed that it could not have fallen unless there had been removal of the cleat affixed at the bottom of the steps.

According to the appellees (and not controverted by other evidence) the cleating of the bottom of the steps was accomplished by nailing a length of 2" x 4" lumber at the'base of each carriage; then another piece of 2" x 4" material was extended under the bottom tread from the 2" x A" pieces on each carriage. This latter piece of material was firmly placed behind the two metal pipes which had been installed in the concrete to receive the four-foot stairway. The foot of each carriage then rested on the concrete, and the 2" x 4" piece behind the iron pipes was designed to prevent slippage of the stairs. The stairs as thus temporarily installed were used without incident from about July 1 until September 21, 1962, when the accident occurred.

For the appellees it was testified that the pieces of 2"x4" material affixed to the base of the carriages did not extend into the landing beyond the front of the bottom tread, or if so, the extension was quite slight and of no significance. But for the appellant there was evidence from witness George S. Lyons that at least one of the 2"x4" pieces extended onto the landing beyond the bottom tread so as to constitute a “definite hazard” to persons using the steps.

Somewhat feverish activities were afoot at the park on the date of the accident, as all hands were busily readying the premises for the official opening the next day. George Lyons, an employee of the Department of Parks, had arrived at the park a day or two before the accident; Lyons is a practical engineer with some forty years of experience. As he expressed it, his assignment “ * * * was to get the lodge in shape for dedication on the 22nd.” Lyons said that he observed a piece of 2//x4// material extending “out beyond the tread carriage for about 12 to 15 inches.” The witness felt that this constituted a definite hazard to users of the steps and, thinking it was just a piece of construction lumber left in place as a temporary measure, removed it. Lyons used a wrecking bar to force the lumber loose; he also removed the cross piece of 2" x 4" that had rested as a cleat behind the iron pipes. When asked whether these materials were securely fastened, the witness said that “It took some unusual effort to get them out.” Lyons said that he observed the iron supports, four feet in width, and “assumed” that “they had been completed and someone had failed to take out the temporary work.” He conceded that had he made a more critical examination he would have learned the true situation and would not have removed the material. Lyons was quite frank to admit that in his opinion the materials which he had removed were adequate to support the steps, and but for their removal, in his opinion, the steps would not have fallen. He also stated that he did not notify anyone of his intent to remove the material, nor did he advise anyone that he had done so. There is no specific evidence that appellees or their servants received any inkling that this “remedial” activity by Lyons had occurred, although one of the appellees probably used the steps after Lyons had removed the cleat.

About two hours after Lyons had removed the lumber and left the premises, the stairs fell while appellant and others were using them. The evidence indicates that after the accident the lower portion of the steps was resting on the concrete landing and the upper portion had fallen into the flower garden below.

The appellant was an employee of the Department of Parks and was assigned to official duty at the accident scene incident to readying the gift shop for the next day’s dedication. He had no duty with respect to the construction, nor was he in any way connected with the contractor appellees. But we think we may by-pass any determination as to whether appellant was a business guest or a bare licensee, and assume, without deciding, that he was a business guest. It is the position of appellant that appellees have the duty of establishing “an all-inclusive negative” in order to retain their n. o. v. judgment. In other words, if there is any substantial evidence warranting recovery for appellant, appel-lees must lose. Without deciding that such a “posture” exists here, we conclude that even if it did the appellant may not prevail.

It is quite doubtful that actionable negligence may be ascribed to appellees, since the evidence by appellant’s witness Lyons confirms the fact that the steps would not have fallen without removal of the supports. But assuming negligence, we think it is clear that the action of Lyons in removing the cleat' was an unforeseeable and abnormal intervening- cause which produced a result that could not have been foreseen. In testing the present n. o. v. judgment we must accept Lyon’s evidence that the 2" x 4" piece was projecting so far as to be a “definite hazard.” But that “definite hazard” was not a risk that the stairs would fall— it was a hazard that some person would trip and fall. It would seem that the most normal way to have corrected that “hazard” would have been to saw off enough of the protruding 2” x 4" to make it flush with the face of the tread.

In Prosser, Law of Torts, 2d ed., § 49, is a scholarly discussion of the doctrine of intervening causes. That authority states that it is not always accurate to inquire whether the intervening cause was foreseeable, since liability has been imposed despite unforeseeable intervention if the intervention could be said to be “normal.” Ibid. p. 267. However that may be, we think that the intervention of Lyons was neither foreseeable nor normal. It is amazing that a practical engineer (Lyons) would “assume” that the contractor had simply forgotten to remove some abandoned temporary work — and particularly so in face of the fact that the engineer had to employ “unusual effort” to pry loose the material with a wrecking bar. It should be said that the project engineer for the Commonwealth (Tierney) testified that he regarded the steps as safely installed. Moreover, the chief engineer for the Department of Finance of Kentucky testified that “Normally, no employee would interfere with the contractor’s work. They should not interfere with it.” This witness (McConnell) testified further:

“Q-48 Just one other question. Mr. Leary asked you about the park’s employees seeing a 3-inch board protruding that might be considered a hazard, and whether they have a right to remove that board. If that board was attached to other timbers that had the function of holding in place the steps that are involved in this action, do I understand you to say that the employee would or would not have a right to take that board loose without first taking it up with the contractor?
JOSEPH J. LEARY-. (Of counsel for the plaintiff), ‘An objection.’
THE COURT: ‘The objection is overruled.’
A. I said he should go through the architect to the contractor and let him remove it for him; that would be his responsibility.
Q-49 But the employee would not have the right to go ahead and remove temporary structures of that kind, and if he did it he would do it on his own?
A. Yes, sir.”

Under such circumstances we conclude the actions of Lyons were an intervening cause, neither foreseeable nor normal, and had the effect of absolving appellees from responsibility in this suit. Bengold Properties, Inc. v. Crook, Ky., 377 S.W.2d 56; Hines v. Westerfield, Ky., 254 S.W.2d 728, 729; Consolidated Contractors, Inc. v. Wilcoxen, Ky., 252 S.W.2d 429.

Appellant insists that the action of Lyons may not serve to exculpate appellees because the steps were not nailed or bolted at the top, and Lyons did not tamper with the top. The difficulty with this argument is that all of the evidence is that the steps did not fall because of any lack of anchorage at the top. There is no evidence to support the theory advanced by appellant on this point.

Appellant contends that appellees should have posted warning signs about the steps. There are at least two answers to that contention: (a) As the steps were installed they were not dangerous; (b) we have assumed, arguendo, negligence of ap-pellees anyway, so the act of Lyons would yet be an efficient intervening cause precluding liability of the appellees.

The judgment is affirmed.

HILL, L, not sitting.


text:
    KENTUCKY BOARD OF HAIRDRESSERS AND COSMETOLOGISTS, Appellant, v. Mary STEVENS, Appellee.
    Court of Appeals of Kentucky.
    June 18, 1965.
    Rehearing Denied Oct. 15, 1965.

      John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellant.
    Thomas W. Burks, John G. O’Mara, Louisville, for appellee.
   DAVIS, Commissioner.

This appeal presents the problem whether appellee Mary Stevens made timely appeal to the Franklin Circuit Court from an adverse ruling of appellant, Kentucky Board of Hairdressers and Cosmetologists. KRS 317.410(12); KRS 317.520(3).

Some time before January, 1962, appellant made application for license to operate a school of cosmetology at Ashland. KRS 317.500(3). On January 12, 1962, the appellant Board entered an order denying the application.

On January 22, 1962, the present appellee filed a complaint in the Franklin Circuit Court wherein she alleged that she possessed the requisite qualifications for and had performed the necessary actions to entitle her to the license; the complaint asserted that the Board had denied her application, but that the order was void on its face because it went beyond the Board’s jurisdiction. The complaint specifically recited that “there is no question of fact to be determined,” and asked for a declaration of rights, coupled with an affirmative mandatory order directing the Board to issue the license for which appellant had applied. Other significant language of the complaint is:

“ * * * and no purpose can be served by any further hearings before the said defendant Board, since there remains purely a legal question to be decided, and plaintiff does not desire to introduce any evidence, and plaintiff relies upon the authority of Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557, in support of her action in applying directly to this court for relief.”

The Board joined issue by filing answer denying the legal conclusions of the complaint, and the case was submitted without proof. On March 14, 1962, the Franklin Circuit Court entered an order in which it was recited, in part:

“Plaintiff having appealed to this Court from an order * * * of the * * * Board entered January 12,1962 * * * the Court * * * finds that there is no record of any hearing conducted by the Board * * * and being of the opinion that there was no competent evidence before the Board to justify its order, * * * it is ordered * * * that the * * * case * * * is remanded to the Board with direction to hold a hearing on the application for license * * *.”

The Franklin Circuit Court set aside the Board’s order denying the license, but did not direct that a license be granted.

Thereupon the Board proceeded with hearings in the matter, and on November 9, 1962, entered an order denying the license. On January 15, 1963, some sixty-odd days later, the appellee filed in the Franklin Circuit Court a motion asking the court to review the record and evidence and set aside the November 9, 1962, order denying the license. The appellant made timely motion to dismiss “the appeal” on the ground that it was not filed within the thirty days prescribed for such appeals. KRS 317.520 (3). The court overruled the latter motion and again set aside the Board’s order, from which ruling the Board prosecutes this appeal.

It is our view that the trial court erred in overruling the Board’s motion to dismiss “the appeal.” It is noteworthy that the Board described the “motion to review” as an “appeal,” because the trial court took the position that the only appeal was the action for declaration of rights filed January 22, 1962. This opinion of the circuit court was founded on the court’s view that its remand order of March 13, 1962, was “interlocutory only.” We think this position is untenable. Kenmont Coal Co. v. Clark, 294 Ky. 226, 171 S.W.2d 242; Mullins v. Ky. W. Va. Gas Co., Ky., 307 S.W.2d 169.

The original complaint for a declaration of rights was not an appeal as prescribed by KRS 317.520(3). As mentioned, the complaint carefully recited that the action was premised upon the authority of Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557. In Goodwin this court recognized the right of direct judicial relief, without prior exhaustion of statutory administrative remedies, where the complaint raises an issue of jurisdiction as a mere legal question, not dependent upon disputed facts; the rationale of that decision is that judicial relief (as distinguished from administrative appeal process) is always available to directly attack a void administrative order. It is significant to note that in Goodwin the statutory administrative appeal process was recognized as appropriate if the court should determine that the administrative board possessed jurisdiction. The language of the opinion is:

“If the court should find that the acts of the plaintiffs are within the competence or jurisdiction of the Commission or come within the zoning statutes (as that the enlargement of the pool was in fact begun after the effective date of the law), the case may be referred to the Board of Adjustment and Appeals for the determination of such issue coming within its administrative authority or jurisdiction. This would leave any aggrieved party the right to pursue remedies by progressive appeals.”

Ibid., 215 S.W.2d p. 561.

The order entered March 14,1962, was a judicial determination by the Franklin Circuit Court that the Board had jurisdiction, and that its order was not void. The only process for attacking the Board’s order (since it was not a void one) was by the administrative appeal provided in KRS 317.520(3). The time for taking such an appeal had already expired when the order was entered March 14, 1962. It is our view that the Franklin Circuit Court exceeded its authority in undertaking to “remand” the matter to the .Board, since the litigation before the circuit court had not emanated from the Board by appeal.

However, for purposes of discussion, we may assume that the circuit court treated the suit as an appeal, and that the interested parties did too, so that they did in effect amend the pleadings of the suit so as to constitute it an appeal. CR 15.02. Even so, the only course available for review of the Board’s order of November 9, 1962, was the statutory appeal. The time for taking the appeal was within thirty days of the order of November 9, 1962. When the appellee failed to avail herself of the appeal within that time the order became final and not subject to appellate review. We think it is fundamental that the “appeal” could not have remained pending in the Franklin Circuit Court while the case was being heard de novo before the Board.

The judgment is reversed with directions to enter judgment overruling and dismissing the “motion to review” and reinstating the Board’s order of November 9, 1962.


author: MONTGOMERY, Judge.

text:
    Frank L. HELLMAN et al., Appellants, v. CITY OF COVINGTON, Appellee.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Rehearing Denied Oct. 15, 1965.
    John J. O’Hara, O’Hara & Ruberg, Cov-ington, for appellants.
    Charles H. Deters, Covington, for ap-pellee.
   MONTGOMERY, Judge.

Frank L. Heilman et al., representing more than 50% of the resident freeholders, remonstrated against a proposed annexation by the City of Covington. They appeal from the judgment permitting the annexation. On appeal they contend that the record fails to establish the requisites of KRS 81.110(2). It is also contended that the description of the annexed territory is inadequate and the record does not show that the ordinance of annexation received the requisite two-thirds vote of the city governing body.

The trial judge heard and decided the case without the intervention of a jury. In effect, it was found that a failure to annex will materially retard the prosperity of the city, and of the owners and inhabitants of the territory sought to be annexed. KRS 81.110(2). The primary question is thus narrowed to whether such findings are clearly erroneous. CR 52.01.

The City of Covington has a population of approximately 60,000 and encompasses an area of over seven square miles. On the north and east it is bounded by the Ohio and Licking rivers, respectively. There are twenty-four other incorporated cities in Kenton County, many of which are adjacent to the City of Covington and form an incorporated wall around the city. The territory proposed to be annexed is one of the few remaining unincorporated areas adjacent to the city.

The establishment of the Internal Revenue Service Processing Center in the city increased the number of jobs therein by 1,700. This facility and the development of urban renewal and area development programs are factors in the effort to remedy the decline in population, jobs, and housing units that existed prior to 1960.

The territory to be annexed contains 218 •or 222 acres, as variously stated. It is located near the western boundary of Coving-ton. Roughly, the area is bounded on the north and west by the City of Fort Wright, on the east by the City of Covington, and on the south by the City of Kenton Vale, a ■sixth-class city lying between the City of Covington and the area to be annexed. The court found that the freeholders did not exceed thirty-five in number and that the actual bona fide residents did not exceed eighty-five in number. Most of them reside along a highway that extends along one •side of the area. The St. Charles Nursing Home, owned by the City of Covington, and the Kenton-Campbell Tuberculosis Sanatorium, owned by Kenton County, occupy .a substantial area within the territory.

Appellants urge that the topography of the area is unfavorable for development, ■especially for industrial use. Less than 15% of the area is level enough for industrial purposes. The remainder is mostly undeveloped, rough, hilly, and wooded. It is argued that these factors make the cost ■of installing the usual utility facilities and roads more expensive.

For the appellants the evidence as summarized is to the effect that the freeholders are satisfied with conditions as they are, that they do not want anything from the appellee, and that they do not want to pay anything for any benefits to be derived from annexation. In short, they are satisfied with septic tanks, cistern or well water, bottled or natural gas, and the existing systems of garbage collection, volunteer fire and county police protection, streets, and bus service. For the city it was shown that annexation would result in improved police and fire protection, lowered insurance rates, better garbage collection, sewage disposal, and water systems. There was evidence to the effect that the city was financially able to make these facilities available. In addition, the benefits of zoning, street lights, public library, and public park and recreational facilities would accrue.

In City of Greenville v. Gossett, Ky., 355 S.W.2d 311, and Buchanan v. City of Dayton, Ky., 363 S.W.2d 92, the cases are collected and the application of the pertinent principles is discussed. In Voorhes v. City of Lexington, Ky., 377 S.W.2d 57, the pertinent principles are discussed as they apply to a second-class city annexation. No further discussion is necessary except to say that the judgment authorizing the annexation herein is in conformity with those principles and that there is substantial evidence to support th<“ findings of fact of the trial judge. CR 52.01.

The ordinance proposing the annexation described the territory in general terms and also by metes and bounds. The judgment approving the annexation referred to the ordinance by number and did not include a description of the territory to be annexed. Appellants contend that this is an inadequate description.

In Village of Cote Brilliante v. City of Newport, 195 Ky. 317, 242 S.W. 2, a metes and bounds description was held to be sufficient in an annexation ordinance; hence, the description in the ordinance here was sufficient. An attested copy of the ordinance of annexation was specifically made a part of the petition for annexation. Therefore, since the judgment identified and referred to the ordinance by its number, it, in effect, incorporated the description by reference and is sufficient.

Additionally, appellants contend that the record fails to establish a passage of the ordinance by a two-thirds vote of the governing body of the city. No such issu£ was presented by the pleadings. The trial court noted that “During the trial of the case no attack was made on the legality of the ordinance.” If appellants had thought that the ordinance had not been legally passed, they should have attacked it directly, in which event the burden of establishing improper passage would have been on the party asserting it, the appellants. There is no merit in this contention.

Judgment affirmed.