author: CLEMENS, Commissioner.

text:
    Daniel K. NAGLE, Plaintiff-Appellant, v. Monnie DREW, Defendant, Oliver E. Wade, Charles Rohlfing, Charles Clemons, and Aetna Casualty and Surety Company, Defendants-Respondents.
    No. 32496.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.

      Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellant.
    David G. Dempsey and Lloyd E. Eaker, Eaker, Dempsey, Zerman & Dempsey, Clayton, for respondent, Wade.
    Luke, Cunliff, Wilson, Herr & Chavaux, by Robert R. Schwarz, St. Louis, for respondent, Aetna Cas. and Surety Co.
   CLEMENS, Commissioner.

This is an appeal in a Workmen’s Compensation case concerning the claimant’s fruitless efforts to show that he was a statutory employee under § 287.040(1), V.A.M.S. The claimant-appellant, 53-year-old Daniel K. Nagle, suffered paralyzing injuries while working for defendant Monnie Drew. Drew, an independent contractor, was then operating his own bulldozer for a partnership composed of defendants-respondents Oliver E. Wade, Charles Rohl-fing and Charles Clemons. Nagle has withdrawn his claim against his immediate employer, Monnie Drew, who was a minor employer not covered by the Workmen's Compensation Law. Nagle’s claim is against defendants Wade, Rohlfing and Clemons as statutory employers and against their alleged insurer, Aetna Casualty and Surety Company.

The Division of Workmen’s Compensation denied Nagle’s claim and on appeal the Industrial Commission of Missouri affirmed. On Nagle’s next appeal the Circuit Court affirmed the Commission’s award denying liability. In the wake of these three adverse rulings, Nagle appealed to the Supreme Court. It concluded that the amount in dispute fell short of $15,000 and transferred the case to us. (Nagle v. Drew, Mo., 396 S.W.2d 709.)

Here, Nagle contends he is entitled to compensation from Wade, Rohlfing and Clemons because they were his statutory employers. Section 287.040(1), V.A.M.S., provides that if persons have work of their usual business performed under contract and upon premises under their exclusive control, they are liable for injuries to the contractor’s employees. The decisive issue: Where a landowner designated three partners as successful bidders to lease its land to operate a rubbish disposal area, and preparatory to operating the area under the proposed lease the partners hired the claimant’s employer as an independent contractor to widen an access road in the ai ea-to-be-leased, were the partners the claimant’s statutory employers?

We state the evidence on this issue. St. Louis county owned an unfenced, 37-acre tract used by the public as a dumping ground, without supervision or restrictions. The St. Louis County Council decided on a new plan: They would rent the land to a lessee; the lessee would supervise the dumping ground and could charge persons for dumping refuse; the lessee would pay an annual rental to the county. On June 15, 1961, defendants Wade, Rohlfing and Clemons bid $17,500 for a five-year lease. On July 27, 1961, the County Council passed an ordinance stating that it “enters into a lease” with Wade, Rohlfing and Clemons for a five-year term “commencing on date of execution of a formal contract.” On August 9, 1961, St. Louis county and Wade, Rohlfing and Clemons executed a lease for a five-year term beginning November 1, 1961. We are concerned here with events occurring immediately after the passage of the county’s ordinance on July 27, 1961.

Defendant Wade had read in a newspaper that the county had accepted the partners’ bid. Without consulting any county official, Wade hired Monnie Drew to bulldoze a road running along an old quarry on the dumping ground. Wade told Drew to make it wide enough for two-lane dump truck traffic. Drew began widening the road and pushing brush into the quarry.

At noon on July 31, the third day of Drew’s work at the dumping ground, Drew was bulldozing along the roadway close to the quarry’s edge. Nagle was watching Drew, guiding him so that the bulldozer would not get too close to the quarry. But the bulldozer struck a tree and one of the limbs fell on Nagle’s back, fracturing a vertebra.

As said, the dumping ground was open to public use, and before and after Nagle’s injury trucks and pedestrians were freely coming and going all over the tract. Wade, Rohlfing and Clemons had no permission from the county to do any work at the dumping ground; indeed, county officials had asked them to leave.

Drew’s bulldozing would make it easier for trucks to pass on the road and to dump rubbish into the quarry. At that time, however, Wade, Rohlfing and Clemons had no plan for dumping at specific locations; and, by their subsequent lease the county designated the places where rubbish was to be dumped. When they did begin operations the partners rented a grader to cover rubbish that had been dumped into the quarry. So much for the facts.

In his brief, claimant Nagle frankly admits he must show that at the time of his injury the dumping ground was under the partners’ exclusive control and, also, that Monnie Drew’s bulldozing was then part of the partners’ usual business. Section 287.040(1), V.A.M.S. These two points in turn.

The statutory phrase “his premises” does not mean ownership, but does mean a place under “the exclusive control of the employer.” Any construction more liberal than this would go beyond the terms of the statute. See State ex rel. Potashnick v. Fulbright, 350 Mo. 858, 169 S.W.2d 59[2]. In that case the court denied liability, holding that “his premises” did not include a railroad siding where the defendant had a right — but not the exclusive right- — to unload freight cars. Nagle cites the case of Crabtree v. Ramsey, Mo.App., 115 S.W.2d 14[2], as authority for the proposition that “his premises” includes land which a defendant “uses to all intents and purposes as his own.” Those words were plucked out of context from that opinion. There the defendant had “complete control” of a tract of timber and “the exclusive right of ingress and egress.” That case does not support claimant. Furthermore, the Potashnick case, supra, refutes his contention. There the court rejected the claimant’s contention that the statutory requirement was met if the defendant “appropriated the premises to his use.” The evidence here not only fails to show that the dumping ground was under the exclusive physical control of the three partners, it actually disproves that contention.

We must also reject Nagle’s contention that Wade, Rohlfing and Clemons had the lawful right to exclusive control of the land. Nagle argues that the land was leased to the partners by the July 27th ordinance, thereby making the land “their premises.” Not so. The ordinance set the term of the lease at five years “commencing on date of execution of a formal contract.” Wade, Rohlfing and Clemons had no right to exclusive control of the land until the start of their lease on November 1, 1961. We hold that neither in fact nor in law did Wade, Rohlfing and Clemons, have such exclusive control of the premises as to be statutory employers under § 287.040 (1), V.A.M.S.

As said, Nagle also contends that the work done by his immediate employer, Monnie Drew, was part of the partners’ usual business at the dumping ground. The purpose of subsection 1 of § 287.040, V.A.M.S., is to prevent an employer from eluding liability by hiring an independent contractor to perform work that his own employees would otherwise perform. Viselli v. Missouri Theatre Building Corp., Mo., 234 S.W.2d 563[3]. Nagle argues that the road had to be widened to allow trucks to pass one another and to dump in the quarry; that Drew’s work was necessary to the dumping ground operation; that the bulldozing was therefore a part of the partners’ usual business. We reject this. Assuming that road building is a part of the operation of a dumping ground, still the partners did not yet have any “usual business” at the dumping ground. In any event, the assumption is invalid: the only purpose of Drew’s work was to facilitate the partners’ future operation of the dumping ground. Work by an independent contractor that is “only incidental, ancillary or auxiliary” to the operation of an employer’s usual business does not come within the statute. Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332[1]. We hold that Wade, Rohlfing and Clemons were not statutory employers under § 287.-040(1), V.A.M.S., for the further reason that the work being done by Nagle’s immediate employer was not an operation of the partners’ usual business.

Therefore, we uphold the finding of the Industrial Commission which denied compensation on the stated ground that claimant Daniel K. Nagle was not a statutory employee of defendants Oliver E. Wade, Charles Rohlfing and Charles Clemons. It thus becomes unnecessary for us to rule the dependent issue concerning the defendant insurer’s liability.

The judgment of the Circuit Court is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C, is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

author: WOLFE, Presiding Judge.

license: Public Domain

text:
    Lewis MASON, Employee, Plaintiff-Appellant, v. F. W. STRECKER TRANSFER COMPANY, Employer, and Hartford Accident and Indemnity Company, Insurer, Defendants-Respondents.
    No. 32342.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.

      James B. Herd and Deeba, DeStefano, Sauter & Herd, St. Louis, for plaintiff-appellant.
    Edmund J. Barker, St. Louis, for defendants-respondents.
   WOLFE, Presiding Judge.

This concerns a claim filed by Lewis Mason with the Division of Workmen’s Compensation of the Department of Labor and Industrial Relations. The claimant sought compensation for injuries arising out of an alleged accident which occurred while he was working for F. W. Strecker Transfer Company. A referee of the Division of Workmen’s Compensation heard the claim and found that the employee did not sustain an accident arising out of and in the course of his employment with F. W. Strecker Transfer Company, and denied compensation. Application for a review by the full Commission was filed by the claimant and that review resulted in the Commission affirming and adopting the award of the referee. This was followed by an appeal by claimant to the circuit court which affirmed the award of the Commission. The claimant then appealed to this court from the judgment of the circuit court affirming the award.

There is but one point before us on' this appeal and that is whether or not the evidence supports the finding that the claimant did not suffer an accident as contemplated by the Missouri Workmen’s Compensation Act.

The F. W. Strecker Transfer Company is in the business of making local freight deliveries. The freight which it delivers is brought to its loading dock by other freight carriers. There it is checked in, inspected and signed for. After that it is placed in Strecker’s warehouse for delivery by their truck to the consignee.

Claimant, Mason, was receiving clerk for the transfer company and had been working in that capacity for about ten years. Prior to that he had worked for the company as freight handler. He testified that as receiving clerk it was his duty to receive, check the freight and sign for it. After that he put it in the warehouse and sorted it by the area to which it was to be delivered. He was required to do some manual lifting in his work but most of this consisted of lifting cartons which did not weigh in excess of fifty pounds. He did, however, move some large drums of material that weighed five hundred pounds. For these he had a special hand truck which gave him greater leverage to tilt the truck to a rolling position than the ordinary hand truck.

He stated that on May 2, 1962, he was working at his usual station hut did not have much to do. At about 4:00 P.M. his employer asked him to get a truckload of freight from a railroad loading dock at Tenth and Poplar Streets in the City of St. Louis and bring it back to the company’s loading dock. He was taken to the Poplar Street dock in his employer’s station wagon. When he arrived there he found the truck he was to bring back was not fully loaded.

The freight being loaded upon the truck consisted of printing paper. He stated that it was in rolls about three feet in diameter and eighteen to twenty-four inches in width. He said that each roll weighed between one hundred fifty and two hundred pounds. Two men were working at loading the truck but there were three rolls of paper still on the dock and one in the freight car in which the rolls had been delivered to the dock. He said that he rolled the one in the freight car out onto the dock himself. There were two freight handlers there who were engaged in loading the delivery truck. One was named Meyers and the other was named Jones. They had a hand truck upon which the rolls of paper were placed and wheeled down to the delivery truck which claimant was to drive back to the warehouse.

These rolls were resting on their curved side. In order to get them on the hand truck claimant and Meyers shoved one roll over on a 2x4 board so that as it rested there one side of the roll was sufficiently high above the floor of the dock to permit the front end of the hand truck to be pushed under it. Two more rolls were placed on top of the first roll by claimant and Meyers. Each of these were lifted by the claimant with the help of Meyers and placed one on top of the other. After the three rolls were stacked Meyers then got the hand truck and pushed the front end of it under the stack so that the body of the hand truck was upright against the cylindrical stack consisting of the three rolls. The claimant estimated the stack to have been four feet or better in height at that time. With Meyers manning the hand truck, he and Jones lifted the fourth roll to the top of the stack. It was their intention to then push the load back toward the body of the truck so that the front part of the hand truck with the load which rested upon it would lift up so that the weight would rest upon the wheel of the truck and the truck could be rolled.

While claimant and Jones were lifting the last roll to the top of the stack, claimant felt a severe pain in the lower part of his back. He went over to a boxcar and leaned against it for a while and Meyers and Jones finished loading the four rolls into the delivery truck. The claimant was asked certain questions and gave his answers as follows:

“Q As the two of you were trying to lift this on top of the stack was there anything at all unusual about that?
“A Yes, sir, there was.
“Q What was that?
“A I got injured didn’t I.
“Q I am asking you if there was anything unusual that happened. We know that you say your back started hurting you but was there anything of an unusual nature that happened other than your back starting to pain?
“A I don’t understand you was there anything unusual, all we were doing was working and when you’re working like that you don’t have any idea of anything happening.
“Q Your foot didn’t slip, did it?
“A No.
“Q Your hand didn’t slip, did it?
“A No.
“Q The other fellow didn’t throw the weight on you, did he?
“A I couldn’t say he did, I put everything I had with it.
“Q So the only thing unusual that happened at that time was that you felt this pain in your low back?
“A That’s right.”

The claimant drove the delivery truck back to the warehouse but he found it necessary to stop en route because of pain in his back and leg. He was treated and later was sent to a hospital for a week. He had no difficulty in doing his work at the Strecker Transfer Company at the time of trial. There was medical testimony on behalf of the claimant and the employer but there is no need to elaborate upon this as the Commission never reached the point of considering it, after finding that the claimant suffered no accident within the contemplation of the Workmen’s Compensation Law.

There is no dispute presented by the evidence before us relating to the activity in which the claimant was engaged at the time his back was injured. Because of this the question of whether or not the injury was an accident is a matter of law, which we rule without regard to the general rule, which requires appellate courts to defer to the Commission’s findings, where the evidence is conflicting and the findings of the Commission are not contrary to the overwhelming weight of the evidence. Corp v. Joplin Cement Co., Mo., 337 S.W.2d 252; Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292.

The meaning of “accident” as used in the Workmen’s Compensation Law is defined by § 287.020(2), RSMo 1959, V.A.M.S. It states:

“The word ‘accident’ as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening ' suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.”

The definition has been held in many cases to be broad enough to classify an unusual or abnormal strain as an accident. Crow v. Missouri Implement Tractor Company, Mo., 307 S.W.2d 401; Merriman v. Ben Gutman Truck Service, Inc., supra; Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61; Miller v. Lever Brothers Company, Mo.App., 400 S.W.2d 625. In all of those cases there was some evidence of an unusual or abnormal strain. The distinction between that line of cases and those cases where one suffers an injury in the course of his usual work and no abnormal or unusual strain is present was discussed by this court in Baker v. Krey Packing Company, Mo.App., 398 S.W.2d 185. It would serve no useful purpose for us to again distinguish the fact in the cases cited from those present in this and like cases.

There is no evidence here of any slip, fall or other mishap which caused the injury of which claimant complains. He rests his claim for compensation solely on the theory that he suffered an unusual strain. There is no evidence that there was anything unusual in the manner in which he was working or the way he was assisting in lifting the roll of paper. He said there was nothing unusual except that his back was hurt. Most manual work requires some strain and the work of handling freight requires considerable. Not infrequently injuries occur in the normal course of work without any more strain than always employed to do the work. If compensation were allowed where no unusual or abnormal strain was present then the injury itself would be classed as an accident, regardless of how it occurred, and such is not the law. There is no evidence to support the theory that claimant was subjected to an unusual or abnormal strain and we therefore conclude that the Commission was correct in holding that there was no accident within the meaning of the Workmen’s Compensation Act. Baker v. Krey Packing Company, supra; Hall v. Mid-Continent Manufacturing Company, Mo.App., 366 S.W.2d 57; Flippin v. First National Bank of Joplin, Mo.App., 372 S.W.2d 273.

The judgment of the circuit court affirming the award of the Commission is affirmed.

ANDERSON and RUDDY, JJ., concur.


author: SPERRY, Commissioner.

text:
    Orpha Janet EVJEN, Respondent, v. Martin Ingvold EVJEN, Appellant.
    No. 24383.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 6, 1966.

      Richard L. White, Kansas City, for appellant.
    Henry H. Fox, Jr., Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Orpha Janet Evjen, sued defendant, Martin Ingvold Evjen, for divorce. Defendant answered plaintiffs petition and filed cross-petition for divorce. At the conclusion of a lengthy and warmly contested trial on the various issues presented, the court found the issues for plaintiff and against defendant on plaintiff’s petition for divorce, and for plaintiff and against defendant on defendant’s cross-petition. It was adjudged and decreed that the bonds of matrimony contracted between the parties be dissolved and that plaintiff be forever freed from the obligations thereof; that the costs be paid by defendant; that defendant pay to plaintiff the sum of $250.00 per month as alimony until further order of the court; that defendant pay to plaintiff, as her attorney’s fees, the sum of $600.00; and that defendant’s cross-petition be dismissed. Defendant appeals.

The transcript consists of three hundred twenty-five pages of testimony. The testimony was highly conflicting on the chief issues presented. We will review the case upon both the law and the evidence as in suits of an equitable nature. The judgment will not be set aside unless it is clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of witnesses. Missouri Supreme Court Rule 73.01(d), V.A.M.R. Where the proper disposition of this kind of case depends largely upon the credibility of the witnesses, as it does here, the rule of deference above mentioned is applicable. Thomas v. Thomas, 288 S.W.2d (Mo.App.) 689, 696.

Plaintiff’s claim for relief is based upon indignities. Defendant contends that the court erred in rendering the judgment herein because plaintiff’s evidence failed to establish that defendant’s conduct was such as to constitute indignities sufficient to support a decree of divorce; that defendant was not legally accountable for his acts and was incapable of avoiding their commission due to his mental illness; that defendant was entitled to a decree of divorce on his evidence of abandonment and general indignities. He also contends that the court erred in failing to make and enter findings of facts. The record is silent as to the making of any request of that nature, and the matter is not mentioned in the motion for new trial. We will not consider the point.

Plaintiff offered the testimony of two witnesses tending to prove that her general reputation is good. She testified in her own behalf to the effect that she and defendant were married in Minnesota in 1935, and lived together there, as husband and wife, until 1957, when defendant was required to move to Kansas City by Montgomery Ward, his employer; that there were three children of the marriage, all now being mature ; that they purchased a home in Kansas City for $16,000.00 and spent $2500.00 repairing and remodelling; that they paid these items in cash, but that, in order to defray college expenses for the children, they later borrowed $14,000.00 on the home; that they have made payments thereon since; that there now remains an unpaid balance; that the title is in their joint names; that it is now occupied by defendant; that plaintiff kept the home throughout the years of their marriage and did not work outside the home until about April of 1963; that defendant had, for years, urged her to work at something in order to add to the family income and that, with his approval, she became a real estate saleswoman in March, 1963.

She stated that during the years of the marriage defendant travelled a great deal; that he would give her the pay check which she deposited and that the proceeds were used for the entire family; that, prior to coming here, they had some marital troubles; that he often used abusive language toward her; that they were not happy; that such conduct grew worse after 1957; that, while she was working on remodelling the house they bought in Kansas City, on one occasion he called her a bitch, a liar, a son of a bitch; that he used profane language to her; that such language and conduct has continued over a long period of years; that it has been worse since 1957; that, on an occasion in Springfield, Missouri, when they were there for their daughter to participate in a beauty contest, he created a scene at the motel, refused to pay the motel bill and otherwise was rude in the lobby in the presence of other guests.

She stated that, for many years, he had urged her to do sales work outside of the home in order to add to the family income; that, in December, 1962, she began training as a real estate saleswoman with his approval; that in March or April, 1963, she was employed on commission, by a Mr. Wandell, who operated a real estate agency; that Mrs. Wandell contacted her; that Mr. and Mrs. Wandell were living separately but were operating the office together; that defendant approved and referred a number of clients to her from among Wards employees; that he eventually became critical of her being gone from home so much; that he began charging her with being intimate with Wandell; that he harassed her in her work; that he would come to the office and create unpleasant scenes; that he would visit her “open houses” thereby interfering with her sales work; that she would try to explain that she was not guilty of any misconduct but that he continued such conduct; that they had not slept together or had any marital happiness for a long time prior to her leaving the home in February, 1964; that she bought a home, made a down payment, and moved into it; that while she was remodelling it he came to the house, abused her and struggled with her in the presence of Mr. Wandell and other workmen; that he had called her a god damn bitch and a whore. She filed this suit on March 2, 1964.

Mr. Wandell testified generally to the same facts as did plaintiff, as to defendant’s course of conduct after plaintiff’s employment with his agency by Mrs. Wandell, from whom he was then separated although they worked together in the business. He stated that Mrs. Wandell tried to explain to defendant the nature of plaintiff’s work, which required her to work at night, but that he continued to harass Mr. Wandell by coming to the office and creating disturbances; that he called Wandell time after time and charged him with misconduct with plaintiff. He stated that on one occasion defendant almost ran over witness, plaintiff and two customers in witness’s parking lot. He stated that, although he is now divorced, he still loves his former wife and has never had any interest in plaintiff except in a business way; that he finally had to terminate her employment, in April or May 1964, because of defendant’s constant harassment of the business, by telephone, personally at the office, and at houses which were being shown for sale. It would serve no useful purpose to recite specific happenings and incidents which, if his testimony and that of plaintiff is to be believed, indicates a continuous course of conduct on defendant’s part such as would render plaintiff’s condition in life intolerable.

Such testimony was to the effect that he repeatedly called her a liar, a bitch, a son of a bitch, a whore, charged her with sleeping with Wandell and with running with other men; and that such conduct continued over a course of more than a year.

Defendant testified to the effect that the parties had no real marital problems until plaintiff started working for Wandell; that she began staying out late at night and until early hours in the morning; that Mr. Wan-dell would call him at all hours of the night and tell him that he loved plaintiff; that he had slept with her; that he would call him a son of a bitch; that, since separation, he has sought reconciliation; that he was at Wandell’s office a number of times; that he never called Wandell bad names; that he did drive through the parking lot one night without stopping but did not see anyone there except some people in a car; that he went to plaintiff’s home, after she moved, and there was a scene and scuffling, but he denied that anyone was there except Wan-dell and plaintiff; that he went there to seek a reconciliation while the house was under repair; that he visited plaintiff’s open houses only at her invitation; that he never called Wandell by telephone but that Wandell called him many times and stated that he loved plaintiff and had slept with her; that she had dates with other men; that she had broken up defendant’s home; that he would testify against her in this case. He stated that he had been in a hospital once for a nervous condition and once for psychiatric treatment; that he spent but one day in the hospital for psychiatric treatment; that he had some shock treatments; that he never called plaintiff a bitch or liar or a whore; that they argued over whether to buy another home; that his gross pay was $10,500.00; that he had no other income and no property of much value other than the home, which was in their joint names; that he was paying her $150.00 per month alimony under court order. He stated that a man told him, after separation, that plaintiff had a boy friend named Marvin.

There was testimony to the effect that plaintiff was partially disabled as a result of an automobile collision; that she needed $250.00 worth of dental work done; that she was suffering from a kidney infection for which she was under treatment; that she had no income except $150.00 per month from defendant; that she owned no separate property except the house where she lived, upon which she was making heavy payments.

From all of the evidence the court found plaintiff to be the innocent and injured party. There was evidence to support a finding that defendant’s conduct was such as to render plaintiff’s condition in life intolerable. If he called her a whore, a bitch, a liar, a son of a bitch, and charged her with sleeping with her employer and dating other men, she being innocent thereof, as the court found, she is entitled to be divorced because of indignities, and there is no precise interval over which such conduct must extend to develop into such indignities as to be ground for divorce. Spencer v. Spencer, 382 S.W.2d (Mo.App.) 237, 240. Each case of this kind must be determined on its own facts and great deference should be paid to the findings of the trial court. Mayor v. Mayor, 351 S.W.2d (Mo.App.) 810, 813.

The evidence tending to excuse defendant’s conduct because of mental illness is weak. It was considered by the court and it does not justify us in interfering with the court’s findings and judgment.

Defendant complains of the allowance of alimony in the amont of $250.00 monthly. Plaintiff testified to facts tending to establish that her cost of living, will require that much or more. She is in ill health and under medical care. She needs dental care. She is untrained for employment other than as a real estate saleswoman and has had only limited experience in that field. It does not appear that she could, at this time, earn a competent income in that field. We cannot hold the alimony allowance to be excessive.

Complaint is also made that the allowance for attorney’s fees, $600.00, is excessive. The court heard the case tried and has experience in judging of the value of attorneys’ services in such cases. Defendant has a gross income of $10,500.00 per year. He has some other personal property and there is an equity in the home jointly owned by the parties. We will not hold the fee allowed to be excessive.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: MAUGHMER, Commissioner.

text:
    Thomas C. WILLIAMS et al., Respondents, v. MILLER PONTIAC COMPANY, a Corporation, Appellant.
    No. 24432.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.

      Donald L. Mason, Mason, Gant & Moran, Kansas City, for appellant.
    James N. Cameron and Carl Gangel, Kansas City, for respondents.
   MAUGHMER, Commissioner.

This is an action for damages, both actual and punitive, alleged to have been sustained by plaintiffs Thomas C. and Carol Williams, husband and wife, as a result of fraud practiced upon them by defendant Miller Pontiac Company in connection with the sale to them of an automobile.

Early in April, 1963, the plaintiffs, residents of Grandview, Jackson County, Missouri, decided to purchase a new 1963 Pontiac Tempest LeMans hardtop coupe. Pursuant to such plan Mr. Williams went to the Laner Pontiac Company, Kansas City, Missouri, a dealer and distributor of Pontiac automobiles. Plaintiffs at the time owned a 1961 two-door Volvo automobile. Mr. Williams made an agreement with Laner to purchase a new 1963 Tempest Pontiac LeMans hardtop coupe with automatic transmission, bucket seats and a V-8 engine. He testified that the cost of this new automobile was $2750, and by agreement Laner was to allow him $750 for the Volvo. However, Laner was unable to make delivery within less than 30 days. The plaintiffs were eager to get a new car quickly so Mr. Williams, having talked it over with his wife, asked Laner to cancel their agreement. Laner agreed to cancel and suggested that Mr. Williams might find a satisfactory car in stock at Miller Pontiac Company, 42nd and Main Streets, Kansas City, Missouri, the defendant in this lawsuit.

Mr. Williams, on the same day, April 16, 1963, proceeded to the Miller establishment. He had been directed by Laner to there seek out a Mr. Tony Nigro, salesman, who had been telephoned by Laner, and advised that Mr. Williams was coming. Mr. Williams located Mr. Nigro, but he was busy and suggested that Mr. Williams “look around” and also take the Volvo “across the street and have it appraised”. Plaintiff went across the street by himself and onto defendant’s lot, where he saw numerous automobiles — some inside the building and some outside. On his first “look” plaintiff found no vehicle meeting his requirements, but on his second time around and on the outside' of the lot he located a 1963 Tempest Le-Mans hardtop coupe with automatic transmission. It was just what he wanted and exactly the same as his tentative purchase at Laner, except (1) it was red, which he did not like particularly, and (2) it had power steering, which he regarded as an asset.

Mr. Williams located this automobile by himself without any guidance, direction or suggestion from anyone. He assumed it was a new car although the speedometer indicated it had been driven “between 500 and 600 miles”. He said he thought this mileage might have been accumulated through use of the car as a demonstrator. He reported his “find” to Mr. Nigro, who was still busy. Mr. Nigro called Mr. Earl Miller and referred plaintiff to him. Mr. Miller was one of the owners of Miller Pontiac and at the time was acting general manager.

Mr. Miller and plaintiff went into the company office. The Tempest on Miller’s lot, in which Mr. Williams was interested, was identified and Williams inquired if he could get that car for the same price as the one he had ordered from Laner, that is, $2750. Plaintiff testified that Mr. Miller figured on a “scratch pad”, agreed on a price of $2750, $850 allowance for the Volvo, and $1900 cash. Mr. Miller wrote up a sales order (Defendant’s Exhibit 1) which recited the detailed agreement. Plaintiff signed in four places. In addition to the figures, this sales form had two blocks within which a mark could be placed indicating that the sale was of a new car or a used car. Neither of these blanks was filled or marked. There was no writing on the sales form to indicate whether the automobile was new or was used. The form had another block with the following statement in black type: “If the car sold herein is a used car or a new car with over 100 miles shown on the speedometer then there is no warranty or guarantee as to the exact mileage car has been driven, regardless of mileage shown on the speedometer”. Plaintiff signed immediately under this statement.

Mr. Williams conceded that he selected the car by himself; that no one ever told him that it was new and not used, and that he himself suggested the price of $2750, which was the new car price at Laner’s (without power steering). Plaintiff also asked Mr. Miller to have the speedometer set back to zero. He said he thought his wife would appreciate the car more if this were done. Mr. Miller said it was done so plaintiff could get a new car warranty. It is conceded and agreed that plaintiffs transferred the Volvo title to the defendant company and paid the agreed-upon cash balance.

On the ensuing week-end Mr. Williams was “washing and cleaning” his new automobile. On the inside of the front door he found an oil and grease sticker, indicating that an oil change had been made at 3400 miles. He also found under the seat a gas purchase receipt issued to a Mr. John T. Hester, whom he later located and identified as the original owner of the automobile.

Plaintiff reported the whole matter to his attorney, who wrote to defendant company about it. Defendant immediately offered to rescind the whole transaction, to return the Volvo and purchase price to plaintiffs and accept return of the Pontiac, but plaintiffs elected, failed or refused to do so. The verdict and judgment were in favor of plaintiffs for $400 actual, and $1,000 punitive damages. The after-trial motions were overruled and this appeal followed.

Defendant says that the court erred in overruling its motion for directed verdict for the reason that plaintiffs did not prove all of the essential elements of fraud. It says that there was no proof (1) of representations or misrepresentations on which plaintiffs relied or had the right to rely; (2) no showing of scienter or intent to deceive and (3) no proof of damage. It says further under this point that for these three reasons just set out it was error to give Instruction No. 3, and that Instruction No. 8, submitting punitive damages, was unauthorized as there was no proof of malice.

Defendant has cited and quoted from opinions which it says sustain the contention that a verdict should have been directed. We believe those authorities not only fail to sustain defendant’s position, but lead to an opposite conclusion. Bolten v. Colburn et al., Mo.App., 389 S.W.2d 384, 390, contains the following declarations with which we agree completely:

“Fraud is not to be presumed but must be proved. To satisfy this burden of proof the evidence produced must be clear and convincing. Mitchell v. McClelland, Mo.App., 306 S.W.2d 75; Herrold v. Hart, Mo.Sup., 290 S.W.2d 49. In so saying it is recognized that fraud can rarely be proved by direct evidence. It is most frequently to be deduced from the circumstances surrounding the transaction, and from the acts of the parties. Mere suspicion is not, however, sufficient. The fraud must be proved as an affirmative fact, and the proof must be of such a positive and definite character as to convince the mind of the chancellor, for it is never presumed and, if the facts shown are consistent as well with honesty as with fraud, the transaction should be held honest. Moberly v. Watson, 340 Mo. 820, 102 S.W.2d 886, 889”.

The elements of actionable fraud as defined by C.J.S. were adopted and approved by the Supreme Court in Powers v. Shore, Mo., 248 S.W.2d 1, 5. We quote from that opinion:

“ 'Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. (9) And his consequent and proximate injury.’ 37 C.J.S., Fraud, § 3, page 215”.

In Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083, 1085, 1086, defendant company turned back the speedometer and argued that such was not a “misrepresentation” and even if it were, nevertheless, it was not “malicious” so as to authorize punitive damages, since the turning back of the speedometer was a common and recognized practice. Both contentions were denied on appeal. We shall quote from this opinion on the “malicious” feature later on and in connection with Instruction No. 8. As to whether or not the mere turning back of the speedometer amounts to a representation, the court said:

“Defendant first argues that the mere turning back of the speedometer could not have constituted a representation; that in the first instance it was but a compliance on defendant’s part with a custom of the trade; and that in any event speedometer readings in their very nature are or may be so inaccurate that they are not to be taken as a guide in buying a used car.
“We cannot agree with any of such suggestions. That defendant may have been following a trade custom in turning back the speedometer could not have served to make its act any the less a representation. The sole purpose of-manufacturers in equipping automobiles with speedometers which register total mileage is to show at all times the total number of miles that the particular car has gone.
* * * * * *
“The only possible reason defendant could have had inhuming the speedometer back was to make it appear that the car had been run only the number of miles which the speedometer was made to indicate. We grant that the record discloses no statement by defendant cither oral or written regarding the mileage of the car. However, a representation is not confined to words or positive assertions; it may consist as well of deeds, acts, or artifices of a nature calculated to mislead another and thereby to allow the fraud-feasor to obtain an undue advantage over him”. (Italics ours).

In our opinion each of the nine elements of actionable fraud is present in the case before us. The authorities just referred to and reason itself indicate that defendant’s agents and representatives, not by affirmative written or oral word, but through silence, by selling a used automobile for a new car price and by turning back the speedometer, made material representations that the vehicle was a new one. Certainly such representations were false— an automobile being sold to a second owner and with 3400 miles on it is not new. Whether the purchaser was receiving a new car or a used one is clearly material. Defendant’s representatives knew the vehicle was used, knew plaintiff was ignorant of this fact and realized he was relying on the truth of the representations. Beyond question a purchaser has the right to rely upon such representations made to him by the dealer. That injury and damage result is not debatable. Instruction No. 3 submitted these essential elements on the issue of fraud. We believe the evidence authorized such submission.

Instruction No. 8 on punitive damages was also properly submitted. For a dealer to induce or allow a purchaser to think he is buying a new car when he is not, certainly shows scienter or intent to deceive. The case of Jones v. Buick, supra, supplies square authority for so ruling. We quote additionally from that opinion (p. 1088):

“Regardless of what the rule may be in other jurisdictions or of the refinements and limitations with which text-writers may see fit to state it, the courts of this state seem now to be committed to the proposition that in cases of fraud and deceit punitive damages may be awarded where legal malice is present. Luikart v. Miller, Mo.Sup., 48 S.W.2d 867; Finke v. Boyer, 331 Mo. 1242, 56 S.W.2d 372. Moreover, by legal malice the courts have in mind simply the accepted theory of the intentional doing of a wrongful act without just cause or excuse, and not the necessity for the showing of any spite or ill will, or that the particular act was willfully or wantonly done”.

Mr. John T. Hester, the original owner of the automobile around which the dispute centers, testified that just after he had traded the car to Miller Pontiac, a group of people — three, four or five — were standing around it. He did not know those persons but he thought one was a Miller Pontiac salesman. He said he heard a remark by this man, who was wearing a business suit, to the effect that “We would probably sell the Tempest as a new car”. The trial court received this testimony over lengthy and strenuous objections, that there was no showing that the person who made the statement was defendant’s agent, it was hearsay and highly prejudicial. Even though we were to conclude that such testimony, standing alone, was inadmissible, still we would be unable to believe that its admission in this case constituted prejudicial and reversible error. It is difficult to understand just how reception of the salesman’s oral opinion that defendant company would probably sell this particular Tempest “as a new car”, could actually materially injure the defense, when the other evidence shows that is exactly what the defendant company did do — namely, sell it as a new car. We are admonished by both statute and rules, not to reverse a judgment unless error materially affecting the merits was committed. Sec. 512.160[2], V.A.M.S.; Rule 83.13[b] M.R.C.P., V.A.M.R.

We find no reversible error in the instructions, the evidence presents a submissi-ble case which will support the verdict and judgment. Defendant has suggested no additional error.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: CROSS, Presiding Judge.

text:
    KANSAS CITY, Plaintiff-Respondent, v. Katherine MATHIS, Defendant-Appellant.
    No. 24434.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.

      Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
    Herbert C. Hoffman, City Counselor, George L. DeBitetto, Assistant City Counselor, Kansas City, for respondent.
   CROSS, Presiding Judge.

Although this appeal is docketed as a single cause, it includes three separate actions tried to final judgment, to-wit, cases numbered 5257, 5417 and 5418 in the Circuit Court of Jackson County, Missouri. All three cases were originally filed in municipal court by the City of Kansas City, Missouri, as plaintiff, against Katherine Mathis as defendant, and are in the nature of prosecutions for alleged violations of municipal ordinances. Defendant was convicted in municipal court in all three cases and duly appealed to the circuit court.

In case No. 5257 defendant was charged with vagrancy by information filed pursuant to her arrest on March 4, 1965. A subsequent arrest on March 15, 1965, gave rise to cases No. 5417 and No. 5418 in which she was charged, respectively, with disorderly conduct and resisting arrest. Case No. 5257 was tried as a separate action and the appeal issues arising from it will be separately discussed and determined. Cases No. 5417 and 5418 were tried simultaneously on the same evidence and will be considered together.

* * *

CASE NO. 5257: The information filed in municipal court on behalf of the city charged that on or about the 4th day of March, A.D., 1965, one Katherine Mathis “was a prostitute, and a lewd woman, had no visible means of support and was found loitering about the streets or frequenting saloons” in violation of Section 62.050 of the Revised Ordinances, 1956, of Kansas City, Missouri. Following defendant’s conviction in municipal court and her subsequent appeal to the circuit court, the cause was tried to that court without a jury. The only witness in the case was Oliver Wallen, a police vice squad detective. He testified for the city that he arrested defendant on March 4, 1965, “as a known prostitute”, after observing her standing at the front window of the Gray Room Lounge, located in the Street Hotel. She was taken into custody in the restaurant, adjoining the lounge at approximately the hour of midnight.

When arrested, defendant told the officer she was working in the cafe as a waitress. She had previously told Wallen that was her occupation. Wallen stated that he had investigated at various hours of the day and night but he had never seen her in uniform or waiting tables or working otherwise. He made no inquiry of the restaurant manager as to whether defendant worked there. Wallen further stated, “I had never seen her work up until then (the time of her arrest). I have seen her working since; however, she doesn’t wear a uniform like the rest of the waitresses. She is dressed up in a nice dress just the same as she did before. She doesn’t wear a uniform like the rest of them”. Wallen didn’t remember whether she had any money on her when he arrested her. Defendant had a room available to her in the Street Hotel which she occupied part of the time.

The trial court found defendant guilty of vagrancy and sentenced her “to 120 days or a fine of $200.00”. Formal judgment was entered accordingly and defendant appealed.

Defendant challenges the sufficiency of the evidence to support the judgment of conviction and specially contends there was no substantial evidence to establish the essential element of the charge that she had no visible means of support. These questions will be resolved under legal principles and procedural rules applicable in criminal cases. Section 98.020 V.A.M.S. provides that “[ajppeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a magistrate.” The Supreme Court construes this statute to mean that “appeals from judgments of the municipal courts in prosecutions for the violation of ordinances, (are) to be tried in accordance with the Criminal and not the Civil Code”, City of Milan v. Allen, Mo.Sup., 175 S.W. 933; and that “the accused is clothed with the presumption of innocence; that he can be convicted only upon proof of guilt beyond a reasonable doubt, and upon the unanimous verdict of a jury.” King City v. Duncan, 238 Mo. 513, 142 S.W. 246. Also see City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935. Consequently the city had the burden of proving “every element of the offense charged and defendant’s guilt thereof beyond a reasonable doubt throughout the trial.” State v. Fitch, Mo.App., 162 S.W.2d 327; State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76.

In this case one of the essential elements of the offense of vagrancy, as it is defined by the city’s ordinance and charged against defendant by the information, is that she had “no visible means of support.” In undertaking to establish that defendant had no visible means of support the city made no claim that she was without funds or property, but relied solely upon the proposition that she was unemployed. The only evidence adduced by the city on that issue was the testimony of Wallen, who stated negatively that he “had never seen her in the cafe in uniform or waiting tables” or doing “any manner of work”.

On the other hand, Wallen’s testimony is the fountain source of positive evidence on defendant’s behalf tending to establish that she was in fact employed at and prior to the time of her arrest. He testified that when he arrested defendant he asked her if she was employed and that she told him “she worked in the cafe as a waitress”. Although the quoted statement thus attributed to defendant enters the record as an admission by the city’s witness, and as hearsay testimony volunteered by him to which no objection was interposed, it nevertheless stands as evidence in the case. 27 Mo.Digest Trial Its credibility and probative value were factors to be determined by the trier of the facts under appropriate rules of evidence. Wal-len’s testimony additionally establishes facts and circumstances tending to corroborate defendant’s affirmative declaration that she was employed as a waitress. Notwithstanding defendant admittedly so informed the officer, he “didn’t bother to check with the management”. It is further admitted by Wallen that since March 4, 1965, he has “observed her in there working * * * however, she doesn’t wear a uniform like the rest of the waitresses. She is dressed up in a nice dress just the same as she did before. She doesn’t wear a uniform like the rest of them”. These facts reasonably permit inference that when Wallen observed defendant at the hotel prior to arresting her, he erroneously formed the belief she was unemployed because she was not attired in the same garmenture worn by other waitresses in the establishment.

However, the real infirmity of Wallen’s testimony, it being negative in nature, is its lack of the requisite eviden-tiary foundation to show that the witness had sufficient opportunity to observe whether or not plaintiff was in fact employed. The probative value of negative testimony rises or declines according to "the opportunity of the witness giving it to hear and observe”. 20 Am.Jur., Evidence, Sec. 1187, p. 1039. Also see Williamson v. Wabash R. Co., 139 Mo.App. 481, 122 S.W. 1113; Lafferty v. Wattle, Mo.App., 349 S.W.2d 519. “The mere fact that a witness did not hear or see something, standing alone, ordinarily has no probative value as to the occurrence, or non-occurrence, of the event, and it may acquire such value only when coupled with a predicate to establish that the witness was in a position to have heard or seen the occurrence if it had happened.” 32A C.J.S. Evidence § 1037, p. 719, citing Finley v. Illinois Central R. Co., Mo.App., 251 S.W.2d 713. The foregoing principles were observed by the Court of Appeals of Georgia, in Jacobs v. State, 1 Ga.App. 519, 57 S.E. 1063, as the basis for its reversal of a judgment of conviction in a prosecution for vagrancy. The court there said: "It appears from the evidence that one of the witnesses for the state did not see the defendant work; but this purely negative evidence is all that the state produced. * * * The most the witness was able to testify was that he had seen the defendant at times when he was not at work. That positive evidence is to be preferred to negative is an elementary rule of evidence, binding upon juries, but absolutely disregarded in this case. If the allegations were sustained by some proof (however little), we would not disturb the verdict; but material allegations made b) the state must be proved in the prosecutions of vagrancy as in other cases”.

So it is in this case. According to the officer’s testimony his opportunity to observe defendant at work was limited to those occasions on which he “made special effort both day and night at various hours to check and see if she worked there”. The witness did not see fit to state with any particularity the frequency of his “checks” or the duration of his surveillance. In view of the vagueness and indefiniteness of the officer’s testimony on these attributes of his “investigation” we do not believe it has been established that he had sufficient opportunity of observation to render his testimony of substantial eviden-tiary value. Having in mind the positive testimony of defendant that she worked in the cafe, we further believe that she could reasonably have been engaged in such employment without having been so observed by the officer. “The probative force of negative evidence is reduced to absolute zero where the fact might reasonably have occurred without being observed by, or known to, the witness * * 32A C.J.S. Evidence § 1037, p. 720.

It is our conclusion that the city has not discharged its burden of proof to establish beyond a reasonable doubt, as an essential clement of the case, that defendant was without visible means of support. Therefore, the judgment can not stand and the conviction must be set aside. Other grounds of error arc presented by defendant, which, in view of our ruling above, need not be considered or ruled.

CASES NOS. 5417 and 5418: The city’s information filed in municipal court to initiate Case No. 5417 charged (formal prefatory allegations omitted) : " * * * that on or about the 15th day of March A.D. 1965, within the corporate limits of Kansas City, and in and upon 1510 E. 18th one Katherine Mathis -and then and there unlawfully did use loud, boisterous, offensive, threatening, abusive and profane conduct, language and behavior * * * in violation of Section 39.120(1) * * * of the 1956 Revised Ordinances of Kansas City, Missouri, as amended” (sic).

The information filed in Case No. 5418 alleged that on or about the 15th day of March, 1965, and within the corporate limits of the city, defendant “unlawfully did resist arrest by a police officer in the discharge of his official duty”, in violation of Section 39.530 of the city’s Revised Ordinances of 1956, entitled “Obstructing and Resisting Officer or Inspector”.

Trial of both cases in municipal court resulted in judgments of conviction from which defendant appealed to the circuit court. There the causes were tried simultaneously to the court, de novo and without a jury, and on evidence common to both actions, to-wit, the testimony of the city’s witness, Earl King, who identified himself as a detective assigned to the vice unit of the city’s police department. No other witness testified in the case.

Detective King testified he arrested defendant at approximately 9:55 P.M. on March 15, 1965, at the Street Hotel after observing her at the rear of the cocktail lounge walking toward the door of the restaurant adjoining. He stated he recognized her “as a person with a reputation of being a prostitute that he had previously arrested.” The arrest was made on the premises of the restaurant into which she ran after she saw the officer. As the officer was escorting her to the police car defendant “broke away and ran”. King pursued and caught her, at which time she started “screaming, cussing and fighting with me, resisting arrest”. With assistance from a companion officer,' King handcuffed her and put her into the police car and started toward police headquarters. She was crying and asked the officers “Why are you guys always arresting me every time you see me?” After the car had gone a short distance, defendant said she had lost her wig and considerable money at the place where King had caught her. Preparing to return there, the officers stopped the police car. At that time another car occupied by a man and woman also stopped and one of the occupants inquired what was going on and what the disturbance was. After the police officers identified themselves “this person” went on and the police car was driven to the location of defendant’s loss. The officers were unable to find the wig but did find two ten-dollar bills lying on the sidewalk which they gave to defendant. They then took her to headquarters where she was booked. Upon being questioned, she stated she was a waitress at the restaurant.

Officer King additionally testified that prior to March 15th he had arrested defendant every time he saw her “around there” (meaning the Street Hotel) because she apparently was not working and was either in the bar or on the street waving at cars. The witness admitted that he has seen defendant apparently working in the Street Hotel since the March 15th arrest. At the time of defendant’s arrest the officer did not see her with a man and did not see her drinking anything. She was “just walking”. The officer stated his reason for arresting defendant as follows:

“Q. (By counsel for defendant) And that is what you placed her under arrest for initially because you had observed her in the cocktail lounge ?
“A. Because we arrested her before and we had warned her in regards to loitering in this bar in this location and she ran as soon as she saw us. When we first observed her she was walking at the rear of the cocktail lounge. When she saw us she ran back to the restaurant, through the kitchen and hid in the men’s rest room. This is why I placed her under arrest.
“Q. You arrested her because you had previously warned her not to go into that cocktail lounge, is that correct?
“A. Because I had warned her — because I had arrested her, and because I recognized her and because she ran.
“Q. That was the reason that you placed her under arrest?
“A. That is correct.
“Q. You didn’t have a warrant for her arrest?
“A. No, sir.
“Q. You did not observe her committing any felony, she wasn't holding anybody up, committing rape, shooting anyone, anything like that?
“A. No.
“Q. All she was doing was in a cocktail lounge where you had personally warned her not to go, is that correct ?
“A. That is correct.”

At the conclusion of detective King’s testimony defendant’s counsel moved for dismissal of both cases. After brief arguments by respective counsel the trial court expressed doubt that there was probable cause for arrest, by the following quoted remarks :

“THE COURT: He didn’t say he was arresting her for soliciting or vagrancy or loitering. He said he arrested her because he warned her to stay out of there and she was there. * * *
“I think the ordinance covers persons as the evidence has been here, where known prostitutes are loitering for purposes rather obvious, but the problem in my mind here is, the officer didn’t arrest her for any violation”.

At this point counsel for the city stated to the court: “The officer informs me she originally was booked under vagrancy”. It is reasonably apparent that the trial court accepted this unsworn statement as evidence and was strongly influenced by it to believe the officer had in fact arrested defendant for vagrancy. This is shown by the following quoted remarks of the court, in response to counsel’s statement:

“THE COURT: If she was arrested for vagrancy, then it would have been a lawful arrest. There is probably cause to believe she was a vagrant and under the circumstances I think she was, and then the arrest would have been lawful, and if she did resist arrest she is subject to the charge. I will overrule your motion under those circumstances.”

The court then proceeded to announce findings that defendant’s arrest was lawful, that “she broke away and ran” and that “she was using profane language”. Upon that basis the court found defendant guilty both of resisting arrest and disorderly conduct as charged, and entered judgments of conviction imposing a fine of $25.00 in each of the two cases.

As her first point defendant submits that she is not guilty of resisting arrest as charged in case No. 5418 for the reason her arrest was unlawful. This contention is premised on sound legal doctrine. “Any unlawful interference with the fundamental right of personal liberty may be resisted. Accordingly, every person has a right to resist an unlawful arrest.” 5 Am.Jur.2d, Sec. 94, Arrest, p. 778. “Where the arrest is unlawful, defendant had the right to use such force as was reasonably necessary to prevent it.” City of St. Louis, v. Penrod, Mo.App., 332 S.W.2d 34. Also see, State v. McGehee, 308 Mo. 560, 274 S.W. 70. There is no evidence in this case, nor is it contended by the city, that defendant used more force than necessary in resisting the arrest.

It is elementary that under certain circumstances a peace officer may make a lawful arrest without a warrant. The general rule, originating in the common law, is that he may arrest without a •warrant any person whom he has reasonable cause to believe has committed a felony and any one committing a misdemeanor in his presence. State v. Vollmar, Mo.Sup., 389 S.W.2d 20; State v. Berstein, Mo.Sup., 372 S.W.2d 57; State v. McBride, 327 Mo. 184, 37 S.W.2d 423. And, this rule has been liberalized by Sections 84.440 and 84.-710, RSMo1959, V.A.M.S. in that police officers of Kansas City, Missouri, are thereby authorized to arrest without a warrant any person whom they have reasonable ground to believe has committed either a felony or misdemeanor or has violated any ordinance of the city, even though such an offense does not occur in the presence of the officer. State v. Cantrell, Mo.Sup., 310 S.W.2d 866; Greaves v. Kansas City Junior Orpheum Co., 229 Mo.App. 663, 80 S.W.2d 228. Thus officer King was amply clothed with authority to arrest defendant on the occasion in question if reasonable ground existed for him to believe she had committed or was in the commission of a criminal offense in violation of state law or an ordinance violation. It is not contended by the city that the offense for which she was arrested was other than a misdemeanor defined by municipal ordinance or that she had previously committed such an offense out of the officer’s presence.

It is clear that our view of the legality of defendant’s arrest necessarily rests upon the question whether officer King had reasonable grounds to believe defendant had committed some offense in violation of the city’s ordinances. As to what constitutes reasonable grounds for an arrest without a warrant, the following was stated by the Supreme Court in State v. Jefferson, 391 S.W.2d 885: “What constitutes reasonable grounds to believe that an offense has been committed by the person arrested is incapable of an exact definition beyond saying that the officer must not act arbitrarily, must exercise his discretion in a legal manner, must use all reasonable means to prevent mistakes and must be actuated by such motives as would influence a reasonable man acting in good faith. State v. Cantrell, Mo., 310 S.W.2d 866, 869[6]; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 225 [2, 3], 228 [10]; 13 L.Ed.2d 142. See generally 6 C.J.S. Arrest § 6d(1), p. 596”. See also State v. Berstein, 372 S.W.2d 57.

Review of officer King’s testimony reveals no evidentiary circumstances of substantial weight tending to establish that he had reasonable ground to believe defendant had committed a crime or violated an ordinance of the city. In fact his testimony, from which we have previously quoted verbatim, expresses reasons for defendant’s arrest founded on considerations other than the belief that she had violated an ordinance. In essence, the reasons given by King for defendant’s arrest, four in number, are (1) because he had warned her not to go into the cocktail lounge, (2) because he had previously arrested her, (3) because he recognized her, and (4) because she ran. The officer’s testimony is void of any claim or statement that he arrested defendant for violation of any law or ordinance. It is a reasonable assumption that if the officer had observed defendant committing a specific offense, and that he arrested her on that account, he would have so testified.

In connection with defendant’s contention that her arrest was unlawful she complains that the trial court erred by accepting, as evidence in the case, counsel’s statement that “The officer informs me she originally was booked under vagrancy”, and thereafter ruling that the arrest was lawful on the basis of that statement. The city argues that the quoted statement by its counsel merely directed the court’s attention to the records of the municipal court which would reflect that a charge of vagrancy was filed against defendant after her arrest and also show that she “was acquitted on that charge”. We are further informed by the city that, as a result of the statement made by its counsel, the trial court did in fact take judicial notice that defendant had been charged with vagrancy. In so doing, argues the city, the court was acting within the rule of evidence that the trial court may take judicial notice of specific facts and propositions of generalized knowledge as laid down in 9 Wigmore, Evidence, Sec. 2571(3) (3d Ed. 1940), and generally followed in this state. That rule, however, is too broad to fit the situation at hand. Missouri courts have consistently declined to take judicial notice of the records of cases tried in other courts, holding that such records must be introduced in evidence. See Adler v. Lang, 26 Mo.App. 226; Hume v. Wright, Mo.Sup., 274 S.W. 741; Daggs v. McDermott, 327 Mo. 73, 34 S.W.2d 46; Fitzmaurice v. Turney, 214 Mo. 610, 114 S.W. 504; State v. Moreland, Mo.Sup., 351 S.W.2d 33. In the last cited case the Supreme Court stated, “We know of no authority, and the state refers to none in its brief, whereby * * * the Circuit Court of Maries County was authorized to take judicial notice of the proceedings in a ha-beas corpus action filed in and decided by the Circuit Court of Cole County. 31 C.J.S. Evidence § 50d, p. 627.” Clearly the trial court erred in receiving the statement of counsel as evidence and making 'it the basis of his finding that defendant’s arrest was lawful.

The city still maintains the judicial notice theory and insists that this court may take judicial notice of the fact that defendant had been charged with vagrancy “to preserve the judgment”. Subsequent to oral argument and submission of this case on appeal, the city transmitted to this court certified copies of what purports to be a record of the municipal court showing that defendant was found not guilty and acquitted of a charge of vagrancy lodged against her following the arrest in question. We are urged by the city to consider this purported record in our disposition of this appeal. This we decline to do because in deciding the appeal issues we are limited to the evidence in the transcript. “[WJhether records are formally introduced in evidence, or considered by the trial judge because it is a matter of record of which he can take judicial notice, such record must be incorporated in the transcript so that the appellate court will have the exhibit before it for inspection and information.” Wilson v. Berning, Mo.App., 293 S.W.2d 151. Also see Bohannon v. Camden Bend Drainage District, 240 Mo.App. 492, 208 S.W.2d 794; City of Rolla v. Riden, Mo.App., 349 S.W.2d 255.

The city argues that the officer had reasonable grounds to arrest defendant under the circumstances he related to the effect that he saw defendant in the cocktail lounge and recognized her as "a person with the reputation of a prostitute that I have arrested before” and that when defendant saw him she ran into the restaurant premises. Says the city, “Considering this testimony in the light of Section 62.-050 Kansas City Revised Ordinances, 1956, prohibiting prostitutes or lewd women from frequenting saloons, the officer had reasonable grounds for the arrest”. We reject this argument. The prohibition of the ordinance runs against prostitutes — not persons reputed to be engaged in that “profession”. Although the officer’s testimony stigmatized defendant as a reputed prostitute, it disclosed no actual knowledge on his part that she had committed any act of prostitution or had suffered any conviction therefor. Nor does the evidence disclose facts or circumstances from which it could reasonably be inferred that the officer had any knowledge, actual or constructive, that would constitute reasonable grounds for him to believe that defendant was a prostitute, either on the basis that she had committed specific acts of prostitution or had solicited therefor, or that her acts and conduct prior to the arrest amounted to a violation of the ordinance in question. The arrest in this instance can not be held valid on the basis of the arresting officer’s testimony that he arrested defendant “as a person with a reputation of a prostitute”, without substantiating evidence. Additionally, the city suggests that the factor of appellant’s flight upon seeing the officer should be considered in determining whether the officer had probable cause for the arrest. We have considered the suggested circumstance and believe it to be of slight significance in view of the officer’s admission that prior to March 15th he had arrested defendant every time he saw her “around there”.

The meager circumstances disclosed by the testimony of officer King fall short of the standards prescribed by the law as necessary to establish that there was probable cause for defendant’s arrest. It is not contemplated by the law that the citizen may be subjected to arrest by failing to heed or obey the personal fiat of a peace officer. Since there is no evidence from any other witness touching the question we must and do conclude that there is no substantial evidence in the entire record to support a finding that reasonable grounds existed for the officer to believe that an offense had been committed by defendant and consequently hold that the trial court erred in finding the arrest lawful and adjudging defendant guilty of resisting arrest.

The validity of the judgment of conviction in Case No. 5417 is challenged by defendant on the ground that the information charging her with disorderly conduct is insufficient in that it does not allege all the essential elements of the offense. For convenience, the information is here re-quoted, in pertinent part, as follows:

“ * * * that * * * Katherine Mathis and then and there unlawfully did use loud, boisterous, offensive, threatening, abusive and profane conduct, language and behavior * * * in violation of Section 39.120(1) * * * ” (sic).

Section 39.120 of the 1956 Revised Ordinances, including subsection (1) reads as follows:

“Sec. 39.120. DISORDERLY CONDUCT. — Any person who, with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the Offense of disorderly conduct:
“(1) Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior.”

Prosecutions for violation of municipal ordinances are regarded as civil actions having quasi criminal aspects. The sufficiency of a complaint (or information) in such cases will be determined by the same rules that are applicable in other civil actions. More particularly, “the complaint must specifically allege the facts which amount to the offense defined and forbidden by the ordinance.” And, an information charging violation of an ordinance without specifically alleging facts amounting to violation is insufficient. See City of Raytown v. Roach, Mo.App., 360 S.W.2d 741 and Kansas City v. Franklin, Mo.App., 401 S.W.2d 949, for a more complete statement of the rules generally observed by Missouri courts in determining the sufficiency of informations and complaints charging ordinance violations, together with citations of supporting authority. These rules are supplemented by Rule 37.18 of the Missouri Rules of Practice and Procedure in Municipal and Traffic Courts, V.A.M.R., which provides: “The information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.”

The “essential facts” necessary to constitute a valid charge of “disorderly conduct” as defined by ordinance, Section 39.-120(1) are in substance as follows: (1) that the person sought to be charged committed any of the acts enumerated within the first subsection of the ordinance; (2) that the person committed such act or acts either with intent to provoke a breach of the peace, or whereby a breach of the peace was occasioned.

Judged by the legal standards previously noted, the information in this case is gravely defective in that it completely omits the very essence of the intended action, to-wit, a statement of “essential facts” to establish the essential element of the charge that the acts complained of were committed by defendant with intent to provoke a breach of the peace or did in fact occasion a breach of the peace. See Kansas City v. Sells-Floto Shows Co., 201 Mo.App. 523, 214 S.W. 269, where this court held that an information charging violation of a city ordinance which omits the very gist of the action is fatally defective, notwithstanding that same strictness is not required for pleading violation of city ordinance as is required in a criminal case. Also see City of St. Louis v. Slupsky, 254 Mo. 309, 162 S.W. 155, 49 L.R.A.,N.S., 919; City of St. Joseph v. Harris, 59 Mo. App. 122; State of Missouri v. James, 37 Mo.App. 214.

Hence the pleading does not constitute “a plain, concise and definite written statement of the essential facts constituting the offense charged”, Civil Rule 37.18, and is consequently without legal effect to support the judgment of conviction.

* * *

Accordingly the judgment is reversed and the defendant is discharged in each of the cases numbered 5257, 5417 and 5418.

All concur.

      . For a comprehensive discussion of the law or arrest, see University of Kansas City Law Review, Vol. 29, 1961, p. 117, “Arrest in Missouri”, by John Scurlock, Professor of Law, University of Missouri at Kansas City.

      . See People v. Hipple, 263 N.Y. 242, 188 N.E. 725, wherein the court said, “The essence of the charge of disorderly conduct is that a breach of the peace may be occasioned by certain enumerated acts.”


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ramey ALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.
    H. C. Smith, Dept, of Highways, Frankfort, L. D. May, May & May, Pikeville, Foster J. Collis, Jackson, for appellant.
    Earl R. Cooper, Marcus Mann, Salyers-ville, for appellees.
   WADDILL, Commissioner.

The landowner was awarded $15,000 for the taking of 5¾4 acres of farm land (improved only by two wooden sheds and a hen house) for right of way purposes in the construction of a portion of an extension to the Eastern Kentucky Turnpike located between Salyersville and Prestonsburg. The Commonwealth has appealed contending that the award is excessive and is not supported by any evidence of probative value.

The farm involved in this proceeding consisted of 114 acres, approximately ten acres of which were described as bottomland. It was shown that the landowner purchased 39 acres of this farm during 1959 for $3000 and that 4½ acres of it were included in the 5¼ acres taken in the condemnation proceeding. The farm has been located on and has had access to a public highway both before and after the taking.

The jury in awarding $15,000 made the following findings:

Before value $30,000
After value 15,000
Difference $15,000

The only testimony tending to support these determinations was that of the landowner’s evaluation witnesses whose estimates were as follows:

These witnesses relied on comparable sales in an attempt to support their valúa-tions. Conley referred to a sale averaging only $400 an acre while May referred to sales which averaged high prices per acre, however these sales involved tracts of land to be divided into and sold as lots. The landowner’s property was not shown to be adaptable for subdivision purposes nor was it shown there was a reasonable expectation that in the near future it could be divided into lots. Bowling Green-Warren County Airport Board v. Long, Ky., 364 S.W.2d 167.

In these circumstances we are unwilling to hold that their testimony has sufficient probative value to sustain an award equal to 50% of the farm’s total value for the taking of less than 5% of its acreage.

The judgment is reversed with directions to set it aside and to grant a new trial.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Wilbert DENNIS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.
    H. C. Smith, Frankfort, Deddo G. Lynn, William O. Gilbreath, Lexington, for appellant.
    W. Earl Dean, Harrodsburg, Walter Patrick, Lawrenceburg, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment awarding appellees, Wilbert Dennis, his wife and his mother $5000 for the taking of their interests in 10.8 acres of unimproved land for construction of a non-access highway in Anderson County.

The questions raised on this appeal are whether the trial court erred in permitting the expert witnesses to value the portion of the farm which is now landlocked as having had access to a highway prior to this condemnation proceeding and whether the verdict is excessive.

Appellee, Wilbert Dennis, purchased a 60-acre tract and a 22-acre tract from his father and uncle, respectively, in the early 1950’s. A 42-acre tract, lying between and contiguous to the 60 and 22-acre tracts, was deeded to Wilbert by his mother on January 20, 1964. The only access from the 22-acre tract to a highway lay through the other two tracts.

For approximately 15 years prior to the institution of this proceeding Wilbert had farmed these 124 acres as one unit. After the farm was bisected by the taking of the 10.8 acres for highway purposes the remainder consisted of 98.7 acres lying north of the highway and 14.5 acres lying south of it. The latter acreage, which was a part of the 22-acre tract, is now landlocked by the new non-access highway.

The parties stipulated that prior to January 20, 1964, it was common knowledge in Anderson County that a portion of the new highway would be constructed in that county. Inasmuch as Wilbert acquired his interest in the 42-acre tract after it became generally known that the highway would be constructed, the Commonwealth urges that the 22-acre tract was landlocked prior to the condemnation and therefore the landowners are not entitled to any damages caused by the highway subsequently land-locking the 14.5 acres.

Ordinarily, two or more parcels of land constitute one tract for the purpose of determining its value when they are contiguous and are united in use and ownership. Commonwealth, Department of Highways v. Raybourn, Ky., 359 S.W.2d 611; Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219. The fact that the three tracts were either owned by Wilbert or the Dennis family established the unity of ownership. Furthermore, the fact that this tract was an integral part of Wilbert’s farming operations for a number of years shows unity of use. In these circumstances the jury could consider the landlocking of the 14.5 acres as affecting the after value of the farm.

Under the evidence the excessiveness of the verdict is apparent. One of the landowner’s witnesses fixed the before value of the farm at $129 per acre and the other witness at $125 per acre. Even the highest comparable sale was $151 an acre. Assuming that the jury treated the landlocked 14.5 acres as having been taken it follows that it awarded nearly $198 an acre for the taking of 25.3 acres, a total of $5000. The testimony does not support this award.

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


author: PER CURIAM.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Frederick A. SCOTT, Respondent.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.

      Reford H. Coleman, Kentucky State Bar Assn., Elizabethtown, for complainant.
    No appearance for respondent.
   PER CURIAM.

The Board of Governors of the Kentucky State Bar Association has recommended that Frederick A. Scott be permanently disbarred from the practice of law in the state of Kentucky. Scott, while residing in Florida, pleaded guilty to charges of conspiracy to commit grand larceny and grand larceny in the sum of $100 or more each. Sentencing was deferred on the first charge. He was sentenced to serve five years’ confinement on the second charge. He has been released from prison.

Disciplinary proceedings were instituted pursuant to RCA 3.335. At a hearing Scott was represented by counsel. By the counsel’s avowal it was stated that Scott, while employed by Travelers Insurance Company in an executive and managerial capacity as an insurance adjuster, had received numerous gifts from various companies engaged in making repairs under claims of policyholders. The avowal was sought to be made in mitigation after respondent’s counsel had admitted Scott’s guilt. It was also avowed that respondent had accepted the responsibility of the adjusters working under his charge and had offered restitution which had been refused.

Larceny is one form of moral turpitude. As such, in this type of proceeding, it is indistinguishable from embezzlement. The admitted guilt of the respondent is an admission of such moral turpitude as warrants his disbarment. In re Shumate, Ky., 382 S.W.2d 405.

The recommendation of the Board is confirmed. The- respondent, Frederick A. Scott, is hereby permanently disbarred from engaging in the practice of law in this state.


author: MILLIKEN, Judge.

text:
    Carl PERKINS and Russell Bolin, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.

      Marcus Mann, Salyersville, for appellants.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

Russell Bolin, aged 29, and Carl Perkins, aged 19, are first cousins and were convicted of grand larceny and sentenced to three years in the penitentiary. The charge stemmed out of their alleged theft of Anthony Beculheimer’s power saw which weighs about 15 pounds and is 2½ feet long.

Bolin and Perkins had spent the night with Bolin’s father. The next day, the day the saw was stolen, they walked eight miles to Perkins’ home, passing Beculheimer’s house on the way. Neighbors in the vicinity testified that they saw Bolin and Perkins walking toward Perkins’ home. Perkins was about 200 yards behind Bolin and was carrying an object which was covered with a coat, sack or other type of covering. One witness, who saw them from a distance of 200 yards, said he thought it was the shape of a guitar. That witness’ wife, who observed them from the same distance, testified, over objection, that she thought it was a power saw because of its size and shape. A third witness, who was within 25 feet of Bolin and Perkins, would not attempt to guess what it was because it was covered. Bolin and Perkins testified that it was a coffee sack filled with Bolin’s clothes. Perkins’ father testified the boys had a coffee sack of clothes when they arrived at his home. He saw no power saw. Beculheimer drove a school bus and his schedule was generally known. He had seen Bolin near the witness’ home the day the saw was stolen from his front porch, but did not know whether Bolin was familiar with his bus schedule.

Bolin was arrested while at Perkins’ home, but Perkins wasn’t there at the time. Perkins testified he purchased the saw for $12 from Henry Perkins and, after learning of Bolin’s arrest, he and his brother-in-law took the saw to the sheriff. He said he borrowed the money from his father and brother-in-law, $8 from one and $4 from the other, and was corroborated in this by the two lenders. Henry Perkins was not available as a witness at the trial.

There was no direct evidence as to the present value of the saw. Beculheimer said he paid $169 for it about a year before and had used it only occasionally. The saw which was turned over to the sheriff by Carl Perkins and his brother-in-law was identified by its serial number as Becul-heimer’s saw. It was an exhibit at the trial and no evidence was offered by the defense to question the value of the saw. The theft of an article a $100 or more in value is punishable by one to five years in the pentitentiary (KRS 433.220), while the theft of articles under $100 in value is punishable by one to twelve months’ imprisonment or by fine of $50 to $500 (KRS 433.-220). The appellants insist that they were entitled to an instruction on petit larceny under KRS 433.230 which was not given.

It is true that the only evidence as to the value of the saw at the time it was taken was its $169 purchase price a year before and its apparent condition when displayed as an exhibit to the jury. The owner testified that it had been used very little and that it still had its original chain. In its instructions, the trial court informed the jury in effect that the saw had to be worth $100 or more for them to find the appellants guilty of the charge of grand larceny. The evidence as to value — the purchase price and the condition of the saw — was all the jury had to go on. It is said in 52 C.J.S. Larceny § 118, at pages 941 and 942:

“ * * * Where it does not appear that there is any absolute standard by which the market value may be determined with definiteness and certainty, any facts which reasonably tend to show the present value of the stolen property may be admitted. Thus it has been held that evidence of the purchase price and the condition of the property when stolen is admissible, especially when the property has been used but a short while.”

See Beasley v. Commonwealth, Ky., 339 S.W.2d 179 (1960).

The Commonwealth had the duty to establish the market value at the time and place of the theft and, in the case at bar, it offered no evidence other than that mentioned. We believe that the jury could have reasonably concluded from that evidence that the market value was over $100. Juries as a rule would not have common knowledge of the value of such a saw, but the condition of the saw and its unquestioned purchase price just a year before formed an adequate basis for concluding that it was worth at least $100 at the time of the theft. We do not find the factual situation here comparable to that in Smith v. Commonwealth, 284 Ky. 169, 144 S.W.2d 215 (1939), where the value of the stolen property was so near “the dividing line between grand and petit larceny that the jury might reasonably infer that the value was less than” the minimum amount needed to convict for grand larceny, so that an instruction on petit larceny was required. And we feel the same way about Taylor v. Commonwcaltlh, 240 Ky. 286, 42 S.W.2d 309 (1931), where the value of a hen and nine little chicks was so vague and unsatisfactory as to make it most uncertain as to whether grand or petit larceny was involved in their theft. In Davis v. Commonwealth, 191 Ky. 242, 229 S.W. 1029 (1921), this Court held it was not error to fail to instruct on petit larceny where the evidence as to value was uncontradicted and clearly was an amount to authorize a conviction for grand larceny. We think the evidence of value here was sufficient to establish the amount necessary to support a charge of grand larceny.

Complaint is made about the testimony of the witness who said the wrapped object carried by Perkins “looked like a power saw.” The jury was admonished. The appellants contend the analogy was an invasion of the province of the jury and as a consequence the jury should have been discharged. It is argued that if the jury did not believe Perkins was carrying the saw at the time, it could not have found Bolin guilty because that is the only evidence connecting Bolin directly with the saw. One witness said the wrapped object carried by Perkins resembled a guitar. These analogies — guitar and saw— merely reflected the shape of the covered object; they did not identify it as a guitar or a power saw, but did suggest that the wrapped object could have been either. We do not believe that such descriptions were an invasion of the province of the jury; rather they were examples of an everyday, normal way of communicating through the spoken word.

The evidence as to Perkins’ part in the theft is sufficient to support his conviction. He is identified as the carrier of the covered object and he it was who returned the stolen saw to the sheriff. It is contended that nothing connects Bolin with the crime, if the saw was stolen at the time alleged except his traveling with Perkins before and after the theft, when Perkins overtook him on their way to the home of Charley Perkins. The instructions did not cover conspiracy to steal, but were given separately as to each man and covered the charge of grand larceny for which the men had been jointly charged. It is true, of course, that mere association, though it may create a suspicion, is not enough to prove criminal concert. The most that we have to connect Bolin with the theft of the saw is his being seen with Perkins before and after the saw was stolen, and being seen with Perkins while he (Perkins) was carrying the covered object. The alibi that the package contained Bolin’s clothes and that Perkins and he took turns carrying it obviously was not believed by the jury and may even have been construed by the jury as indicating Bolin had a guilty mind. We have a bit more than a mere association here between Bolin and Perkins; we have an established theft of the saw at a time when Bolin and Perkins were together. We conclude that the jury was entitled to weigh all these circumstances and to decide from them that Bolin was a participant in the theft.

The judgment is affirmed.