author: MAUGHMER, Commissioner. PER CURIAM:

text:
    COLONIAL CONSTRUCTION CO., Ltd., Respondent, v. SHARP INDUSTRIES, INC., Appellant.
    No. 24653.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application to Transfer Denied Jan. 8, 1968.
    Thomas J. Leittem, John H. Altergott, Jr., Shughart, Thomson & Kilroy, Kansas City, for appellent.
   MAUGHMER, Commissioner.

This dispute concerns one-half ($8,-614.15) of a “change order” payment made under a rather large United States Government construction contract. The plaintiff prevailed and had the verdict and judgment for the exact amount sued for. The defendant has appealed.

We first must introduce and become acquainted to some extent with the principals that were deeply involved in this controversy and the events out of which it arose. In the spring of 1957, the United States of America, acting by and through the United States Corps of Engineers, was in the process of constructing a radar screen along the Atlantic coastline of the United States and Canada. Bids were about to be taken and a contract let for the construction of ten communication installations known as “Operation Gap Filler” at sites near Labrador and Newfoundland along the Atlantic shoreline of the Dominion of Canada.

The plaintiff, Colonial Construction Co., Ltd., in its petition named as defendants Sharp Industries, Inc., Sharp Bros. Contracting Co. and Don E. Sharp. Sharp Bros. Contracting Co. is and has been for many years a solvent and successful Missouri corporation. Its president and managing officer was at all times Mr. Don E. Sharp. Colonial Construction Co., Ltd., is a corporation duly organized and existing under the laws of Newfoundland. Its general manager, insofar as the present subject matter is concerned, was Mr. Harlo Haagenson. These two organizations determined to make an effort to obtain the Operation Gap Filler contract. It was required that corporate bidders be domiciled in Canada. Management of Sharp Bros. Contracting Co. apparently did not deem it advisible to involve that company directly in the proposed project and so organized Sharp Industries, Inc., primarily and probably solely, for the purpose of functioning on Operation Gap Filler. The bid of this group was accepted and the contract awarded. Again Don E. Sharp was president, but his brother, Raymond D. Sharp, then living in New York City, was made general manager. The rights and obligations of Sharp Industries and Colonial Construction were enumerated in a written Joint Venture Agreement.

The parties also entered into and this case was tried in part under a Stipulation of Facts. We recite certain pertinent parts of that stipulation:

(1) “Plaintiff Colonial Construction Co., Ltd., and defendant Sharp Industries, Inc. duly entered into a joint venture agreement dated May 21, 1957, under the terms of which the parties agreed to act as joint venturers under the name ‘Colonial Construction Company, Ltd., and Sharp Industries, Inc., d/b/a Colonial Construction Co.—Sharp Industries, Inc., a joint venture’; that said joint venture would bid on a construction project known as ‘Operation Gap Filler’, and, if successful, construct said project as joint venturers, pursuant to the terms of said joint venture agreement.”

(2) The joint venture group did bid, was successful, was awarded the contract and started construction. We interpose here to state that the Joint Venture Agreement provided in effect that the parties share equally in expenses and profits. It further provided that Mr. Raymond D. Sharp of New York, brother of Don. E. Sharp, should be employed as general manager of the joint venture and should “receive all payments and disburse all funds”.

More than one year thereafter and for reasons which are not quite clear from the record, but which are not of great importance, Sharp Industries, Inc. on December 24, 1958, agreed in writing with Colonial that it would and it did, assume complete control of the construction project from that date on. This control covered construction, management and carried authority to receive payments and endorse and cash all checks and drafts received from the Government. Colonial was paid an agreed cash consideration and all payments thereafter made by the contractor were to belong to Sharp Industries, Inc. except such as might be made for “change orders”, that is, for changes ordered by the Corps of Engineers in modification of the original specifications. Colonial was still to receive one-half of all such “change order” payments. It was stipulated that for the year 1960, only Sharp Industries was authorized to act for the joint venture, including collection and disbursements of checks and monies.

Only one payment is in controversy. It was stipulated that on or about January IS, 1962, Sharp Industries, Inc. received from the United States Government a check in the amount of $17,228.30 (as reduced to United States dollars) and the same represented the amount due under Modification No. 14 and all remaining “change orders”. The uncontroverted evidence shows that Sharp Industries, Inc. endorsed this check to Sharp Bros. Contracting Co. for payment of indebtedness due, namely advancements made by Sharp Contracting to Sharp Industries to provide capital for carrying out the construction contract. It is conceded that plaintiff Colonial was entitled to receive one-half ($8,614.15) of this amount. Defendant contends that payment of this sum was made to plantiff or its authorized representative. Although the total payments by the Government under the contract amounted to nearly two million dollars, this particular item is the only one in litigation and in dispute. Actually the only fact issue is — did Sharp Industries, Inc. or someone for it pay this sum of $8,614.15 or a sum which Colonial agreed to accept in satisfaction of the obligation, to Colonial or to its authorized representative?

Mr. Don E. Sharp, then a defendant and president of both Sharp companies, testified. He said that in 1959, Mr. Rolf Sief-kin, president, and Mr. Harlo Haagenson, general manager of Colonial, telephoned him on numerous occasions, asking for a settlement in advance for Colonial’s share in the payments to be made under pending Modifications No. 13 and No. 14. Mr. Sharp said he refused to do this as he did not know either the exact or the probable amount of such payments. Then payment for Change No. 13 came through and admittedly Colonial was paid its share. Mr. Don E. Sharp testified that in May, 1960, he received a telephone call from New York City and a three way conversation ensued among himself, his brother Raymond D. Sharp and Harlo Haagenson, Colonial’s general manager. He said his brother Raymond and Mr. Haagenson told him that they had been informed by the Corps of Engineers that the payment for Modification No. 14, would be between $17,000 and $20,000 — likely about $18,000 —and asked him to exchange Colonial’s share of this money, which was coming due, for a like share of the retention money, all of which belonged to Sharp Industries, so that Colonial might realize some immediate cash. Don E. Sharp said he immediately called the Corps of Engineers himself and received verification that the figure of $18,000 was approximately correct. Mr. Sharp asserted that he then contacted his brother and Mr. Haagenson and made an oral “gentleman’s agreement” with them under which Haagenson, representing Colonial, would be paid $9,000 out of the retention money as fast as they could collect it and in return therefor Colonial was to relinquish its right to share in the payment to be made later under Modification No. 14. Mr. Sharp said that after he made this gentleman’s agreement he received no further telephone calls from his brother or from Mr. Haagenson. The payment under Modification No. 14 was made by the Government about January 15, 1962.

The stipulation recited that during the year 1960 there were four deposits, totaling some $24,000 made in the Chase Manhattan National Bank, New York City to the account of Colonial Construction Co., Ltd. — Sharp Industries, Inc., a Joint Venture, and eight withdrawals, totaling approximately $33,000. It should be here noted that during 1960, only Raymond D. Sharp, the New York brother, had authority to cash checks or make withdrawals.

Trial of this case commenced on April 11, 1966. About two weeks before trial the deposition of Mr. Raymond D. Sharp, the erstwhile New York brother, was taken. At that time he said he resided in Merriam, Kansas. He never signed the deposition. His brother, Don E. Sharp, said he did not know where his brother was, that when he last heard of him he was in Orlando, Florida. The deposition was received and read in evidence. Therein Mr. Raymond D. Sharp stated that: he was not connected with Sharp Bros. Contracting Co. as an officer, stockholder or employee; he was employed and functioned as general manager of the Labrador project and “run the complete works.” He corroborated his brother Don as to the three way telephone conversation between Don E. Sharp, himself and Mr. Haagenson. He said that Don E. Sharp agreed that he, Raymond D. Sharp, and Mr. Haagenson should collect the retention money, divide it, and Sharp Industries, Inc. would reimburse itself out of the Modification No. 14 money. The record does not indicate the theory under which Raymond D. Sharp was entitled to receive half. He said that he collected $8,443.75 retention money on August 2, 1960, $2,514.84 on November 16, 1960, $6,000 in December, 1960, and that Haagen-son received one-half of each of these payments. He did not remember if he (Sharp) paid Haagenson in cash or by check. He said his record keeper had either died or disappeared, and Sharp could not find the records. Mr. Sharp, during 1960, received one other check but it covered Modification No. 13, about which there is no dispute.

Defendant produced records from the Chase National Bank showing the deposits as described by Mr. Raymond D. Sharp, but no bank records were produced showing how or to whom disbursements thereof had been made. Mr. Harlo Haagenson, general manager of Colonial, denied unequivocally that he or Colonial had been paid their share of the Modification No. 14 payment, and denied that Raymond D. Sharp had paid him any part thereof.

At the close of the evidence plaintiff dismissed as to defendant Don E. Sharp. The jury returned a verdict for plaintiff and against defendant Sharp Industries, Inc. for $8,614.15 or one-half of the admitted payment made under Modification or Change No. 14, and a verdict in favor of Sharp Bros. Contracting Co. Only Sharp Industries, Inc. has appealed. The respondent plaintiff has not been represented in this court by either written brief or through oral argument.

Defendant on appeal says the court erred in allowing plaintiff’s counsel in his final argument to comment, over objection, on the failure of defendant to produce records of the Chase Manhattan National Bank showing how or to whom the admitted disbursements had been made, when, under the law and the evidence, said records were equally available to both parties. Defendant in this lawsuit resisted plaintiff’s claim by a contention that plaintiff had already been paid. It produced Chase Bank records showing that substantial deposits had been made in that institution during 1960. The parties stipulated that substantial withdrawals had been made during that year. The burden was on defendant to establish its defense of payment. The bank account during 1960, was under the exclusive control of Sharp Industries, Inc. Only Mr. Raymond D. Sharp was authorized to make withdrawals. The argument to which defendant objects is as follows:

“ * * * Maybe it was paid out in cash. If they did, they had a counter check, didn’t they — or some kind of written statement. Do you think that you or anybody else can walk into the Chase Manhatten Bank and say ‘I want six or seven thousand dollars. Please pay me — ’
“MR. LEITTEM: Your Honor, I object. This is improper argument. It is improper to put the jury in the shoes of any one of the parties and ask them what they would do and I ask it be stricken.
“THE COURT: That isn’t all he said, objection overruled.
“MR. BUSH: Do you think Ray Sharp could walk into the bank and say, ‘Give me $7,178.86. I am not going to sign anything.’ You know very well he. couldn’t. You know those things are in existence now. Why weren’t they brought here? There is something mighty funny about those checks. If they were here, they would show that we didn’t get a penny of this money.
“MR. LEITTEM: Your Honor, this is improper argument. The Chase Manhattan Bank records were as available to the plaintiff as to the defendant. I object. He is trying to imply that the defendants have some special control over the Chase Manhattan Bank.
“MR. BUSH: I object to the speech.
“THE COURT: You may answer it if you want to.
“MR. BUSH: If I were coming in defense of this lawsuit and the only defense I have got is that Mr. Haagenson got half of these three checks, I would have the checks here or I would have written receipts or something—
“MR. LEITTEM: That is improper argument because he is not defense, Your Honor.
“THE COURT: Objection overruled”.

We believe the argument was, under all the circumstances, appropriate and permissive. Raymond D. Sharp had testified that he didn’t remember whether he had paid Haagenson in cash or by check. He did not produce any records of his own —canceled checks or otherwise — on this point. He said his bookkeeper had either died or absconded and he had been unable to find his records. The defense contended Haagenson was paid out of the funds deposited in the Chase Bank during 1960. The defense produced the bank records showing the deposits, but none showing the withdrawals. Such evidence was of vital importance. It was inherent in proof of the defense. While plaintiff might, through deposition, have secured such records, we still believe plaintiff had the right to comment on defendant’s failure to either produce such evidence or show its nonexistence. We agree with defendant’s general statement that where a witness is equally available, it is error to comment on one party’s failure to produce him. But here primary proof of payment in the form of canceled checks would be either in the custody of Raymond D. Sharp or of defendant if the same had been withdrawn from Chase, and if not withdrawn, would still be in custody of the bank. Furthermore, it is a modern, common practice of banks to make photostats of checks just as it did make photostats of the deposit tickets which defendant did produce. Defendant’s failure to produce or show any effort on its part to produce such evidence invited criticism.

Defendant cites five Missouri decisions which it says support the view that such comment amounts to reversible error. We have read those opinions.

In Stephens v. Henningsen, Inc., Mo. App., 358 S.W.2d 450, plaintiff had taken the deposition of the witness who was a stranger to the proceedings, but an observer of the automobile accident. Defendant read the deposition in evidence. Plaintiff’s counsel commented on defendant’s failure to produce the witness in person and said that plaintiff had thereby been denied the right of cross-examination. Such comment was ruled to be reversible error.

In Belding v. St. Louis Public Service Co., 358 Mo. 491, en Banc., 215 S.W.2d 506, 514, the witness was a passenger on defendant’s bus. There was no other relationship between the witness and defendant. Such witness was held to be equally available and any comment on defendant’s failure to produce and present him as a witness was ruled to constitute error.

O’Donnell v. St. Louis Public Service Co., Mo.App., 246 S.W.2d 539, 544, is substantially a twin of the Belding case. Defendant also cites Rice, Stix & Co. v. Sally et ux., 176 Mo. 107, 75 S.W. 398. The comment there objected to was not as to a witness.

Finally, in Trzecki v. St. Louis Public Service Co. et al., Mo.Sup., 258 S.W.2d 676, 678, the comment was on the failure of plaintiff to produce as a witness plaintiff’s physician who had examined after the accidental injuries. It was held in that case that such witness was not equally available to the litigants.

In our opinion these cases do not support and uphold plaintiff’s assignment in the instant case. The point is denied.

Defendant’s second and only additional assignment asserts that Instructions No. 2 and 6, when considered with the Forms of Verdict Instructions, are conflicting, and the jury’s verdict is not responsive to No. 2, which was plaintiff’s verdict directing instruction. We set out the instructions numbered 2 and 6 and the pertinent parts of the Forms of Verdict directions.

“INSTRUCTION NO. 2.
“Your verdict must be for the plaintiff and against both defendants, if you believe :
“First: That plaintiff and defendant Sharp Industries, Inc. joined together in a joint venture agreement;
“Second: That defendant Sharp Industries, Inc. received a check in the amount of $18,456.44 Canadian dollars from the U. S. Corps of Engineers in January, 1962, of which $17,228.30 U. S. dollars represented payment for certain change orders;
“Third: That by reason of the joint venture agreement, as amended in writing, plaintiff was entitled to one-half of the payment for change orders;
“Fourth: That said check was deposited to the account of Sharp Bros. Contracting Co. in Traders National Bank in Kansas City, Missouri;
“Fifth: That by reason of said check having been deposited to the credit of Sharp Bros. Contracting Co., said Sharp Bros. Contracting Co. has been unjustly enriched ;
“Sixth: That plaintiff has demanded one-half of said $17,228.30 U. S. dollars paid for certain change orders;
“Seventh: That plaintiff has been paid no part of said sum; unless you believe plaintiff has been paid as submitted in Instruction No. 3.'”
“INSTRUCTION NO. 6.
“You are instructed that nine or more jurors may return a verdict in this case. If all of you agree upon a verdict, your foreman alone will sign it, but if your verdict is returned by nine, or more, and less than twelve jurors, your verdict must be signed by all of the jurors who agree to it.”
“FORMS OF VERDICT
“If you find the issues in favor of the plaintiff and against both defendants, your verdict may be in the following form:
‘We, the jury, find the issues in favor of the plaintiff and against both the defendants and assess its damages at $-
Foreman”.
“If you find the issues in favor of the plaintiff and against one but not both the defendants, your verdict may be in the following form:
‘We, the jury, find the issues in fávor of plaintiff and against defendant (here insert only the name of the defendant you find against) and assess its damages at $_, and we further find the issues in favor of defendant (here insert the name of the defendant in whose favor you find).
Foreman.”

It is true as defendant suggests that these instructions are not completely consistent. No. 2 lists the findings required for a verdict against both defendants. There was no such instruction for a finding against one of the defendants except under Form of Verdict, which did contemplate a possible finding and verdict against one defendant only.

We believe first, that the instructions, read and considered in the entirety, were not conflicting and that the verdict cannot reasonably be ruled to be nonre-sponsive. We believe, secondly, and we rest the decision on this holding, that no error was committed against the appellant “materially affecting the merits of the action”. Defendant does not contend that the verdict and judgment are unsupported by substantial and credible evidence. We note this admonition in the Rules of Civil Procedure in Appellate Courts. Rule 83.13 (b), Materiality of Error, V.A.M.R.:

“No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.”

Appellant relies on the opinion in Johnson v. Hunter et al., Mo.App., 398 S.W.2d 449. In that case the suit was against the owner and against the driver of a truck which both defendants knew was equipped with faulty brakes. The driver, when the brakes failed, drove into a ditch and his passenger was killed. The verdict directing instruction submitted only as to both defendants jointly. The verdict of the jury was against the owner but in favor of the driver. The point had not been preserved but the court declared it amounted to reversible error. That case is not our case. There the driver and the owner appeared to be inseparably and jointly liable and certainly the court so instructed. In our case, under the evidence, Sharp Industries, Inc. and Sharp Bros. Contracting Co. are not involved alike nor are they equally and inseparably liable. Moreover, the instructions, when read as a whole, did authorize a verdict against only one defendant. We believe the evidence justified the finding against only one defendant. In our opinion the technical inconsistency in the instructions did not constitute error against defendant which “materially affected the merits of the action”, and we rule the point against appellant. Defendant has presented no further or additional assignments of error and we find none.

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.


source: Caselaw Access Project

author: SPERRY, Commissioner. PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. William L. BARLISH, Defendant-Appellant.
    No. 24559.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application for Transfer Denied Jan. 8, 1968.

      Ronald L. Somerville, Chillicothe, for appellant.
    Frank Conley, Pros. Atty., Boone Co., Richard Blanck, Jr., Pros. Atty., Cooper Co., Columbia, for respondent.
   SPERRY, Commissioner.

During the April, 1963, term of circuit court, the state charged defendant with the crime of forcible rape, in Boone County. On February 10, 1964, defendant filed motion for change of venue. On January 13, 1966, he was tried to a jury and convicted of common assault, in Cooper County. In accordance with the verdict he was, on February 23, 1966, sentenced to serve a term of six months in the county jail and to pay a fine of $100.00. Defendant appeals.

His sole asserted grounds for reversal is that he should have been discharged under the provisions of Sec. 545.900, RSMo 1959, V.A.M.S., on his motion therefor, filed on October 18, 1965, for the failure of the state to try him before the passing of four terms of circuit court, in Cooper County, Mo., after the filing of the complaint against him. On February 23, 1966, following his conviction, he filed a motion to set aside the verdict and discharge him for the reason that the court lacked jurisdiction to try him. This motion was overruled and sentence was imposed.

Upon the specific, written request of defendant, prepared by his counsel on counsel’s stationery, duly filed and appearing in the transcript, our review will be limited to the legality of the court’s action in overruling defendant’s motion for discharge under the provisions of Sec. 545.900, supra.

The statutes involved are set out below:

“SECTION 545.900. DEFENDANT ON BAIL — DISCHARGE IF NOT TRIED BEFORE END OF THIRD TERM. — If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term”. (Emphasis ours).
SECTION 545.020. WHEN DEFENDANT NOT ENTITLED TO DISCHARGE. — In all cities or counties in this state in which there shall be more than two regular terms of the court having jurisdiction in criminal cases, the defendant shall not be entitled to be discharged for the reasons and under the circumstances mentioned in section 545.-890 until the end of the third term after the indictment was found, and under the circumstances mentioned in section 545.-900, the defendant shall not be entitled to be discharged until the end of the fourth term after the indictment was found, and in either case the matter of discharge shall, at the end of such third and fourth terms, be governed by the provisions of section 545.910”. (Emphasis ours).

Sec. 545.900 appears in Vol. 1 RSMo 1879, page 321, in substantially its present form. It came into the law prior to 1840. State v. Wear, 145 Mo. 162, 46 S.W. 1099. In the early case of State v. Huting, (1855) 21 Mo. 464, it was ruled that the statute was intended to operate only when there is some laches on the part of the state but, if the trial is delayed through no fault of the state, this will not be grounds for discharge. In this case, under the statute, the time limit to bring a defendant to trial is the fourth term after the indictment is found, provided defendant, by some act of his own, has not tolled or extended the time; but the term at which the indictment is found is not counted. State ex rel. Stevens v. Wurdeman, 295 Mo. 566, 249 S.W. 189, 193. Any delay in the trial due to the action of defendant will not be counted and, if defendant consents to a continuance, the term at which such action is taken is not counted. Where a continuance is ordered by the court it is presumed that the state is in no manner responsible for the delay of the trial, State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, 151; and, in such case, the term at which such continuance was ordered will not be counted in computing the number of terms elapsing.

On November 29, 1965, in Cooper County, the court heard, considered, and ruled the motion for discharge. Counsel for the state announced ready. Defendant was asked if he was represented by counsel on the motion, to which he answered that Mr. Steg-ner, who was present, would represent him as counsel. The court addressed Mr. Steg-ner, who replied that: “The docket entry speaks for itself”. The court stated that defendant should introduce the docket.

The transcript shows that the information herein was filed in Boone County June 15, 1963. Boone County has four terms of circuit court each year as follows: the first Monday in January; the first Monday in April; the third Monday in June; and the first Monday in October. Sec. 478.240, RSMo 1959, V.A.M.S. The calendar for 1963 indicates that the April term began April 1st and ended June 16th. Therefore, the charge was filed during the April term, which is not to be counted for the purpose of determining the question here presented.

The June term began on June 17 and, according to the court record, defendant was arraigned on that date. The transcript shows that no other action was taken during the June term, no date was set for the trial. The October term began October 7, 1963, and ended January 5, 1964. The record shows that on the first day of the October term the case was set for trial on February 18, 1964, which would be during the January term. Such action, taken by the trial judge, will be held to indicate that, because of the lack of time, the case could not sooner be heard. Failure to offer defendant a trial during the October term will not be counted under the statute. On February 13, 1964, the court granted defendant’s application for a change of venue, and transferred the case to Cooper County. Therefore, the state’s failure to offer defendant an opportunity for trial during the January term is not to be considered here.

The transcript arrived in Cooper County on February 20, 1964. Cooper County has three regular terms of court annually, as follows: first Mondays of March and June, and the third Monday in October. Sec. 478.253, RSMo 1959, V.A.M.S. The 1964 calendar indicates that the first Monday in March was the 2d day of the month; the first Monday in June was the 1st day of the month; and the third Monday in October was the 19th. Therefore, the case reached Cooper County during the October 1963 term. We will not count that term in this computation. A part of the term had passed before the case was lodged in that court.

The record does not reflect any action of any kind with respect to the setting of a trial date, or ordering a continuance, during the March or June 1964 term; it is completely silent as to any action taken in the October term, 1964. The March term of 1965 began March 1st. The record before us is silent as to any action, of any kind, taken during that term, except the granting of a motion to reduce defendant’s bond to $6,000.00. The June 1965 term began on June 7, and the October term began on October 18. On September 17 defendant filed a request to take depositions upon written interrogatories. On October 5, during the June term, defendant’s attorney of record filed motion for examination of defendant for mental disease and an application for continuance based on time required for mental examination. On October 11th a hearing was had on these motions. Mr. Conley, prosecuting attorney of Boone County, and Mr. Blanck, prosecuting attorney of Cooper County, were present representing the state. Mr. Stegner was present as attorney for defendant. It was disclosed by defendant that he had discharged his former attorney on the day following the filing of these motions, and that said attorney no longer represented him, although he was present in court. Mr. Stegner was defendant’s only attorney. The state insisted that a trial date be set. The court said: “I agree with you Mr. Conley. I will say this for Mr. Barlish; the delay in coming to trial has not been his fault. He has contacted me. He objected to the case being continued. So whatever the delay, up to date, it has not been defendant’s fault”. Under the same date the record shows that defendant, personally, asked that the motion for mental examination be withdrawn, stating that he was not crazy; that defendant requested a continuance in order to prepare for trial; that, without objection, the state indorsed sixteen names on the information; that the cause was set for trial on January 12, 1966. Therefore, the continuance during the June 1965 term will not be counted here.

On October 18, 1965, the first day of that term defendant filed motion for discharge under the above mentioned statute. On November 29, 1965, the court announced that the motion would be heard and considered. Mr. Stegner represented defendant, who was also present in court. The court heard the parties, rather informally. Counsel for the state, Mr. Blanck and Mr. Conley, made statements explanatory of the failure of the state to try the case at various terms, the court record being completely silent on the subject. At the conclusion of the hearing the court announced that defendant had failed to show that four terms had passed due to the state’s laches. The court asked Mr. Stegner if he could “see that”, to which Mr. Stegner replied that he could, and stated to the court that he thought the motion should be overruled. The court overruled the motion.

On December 17, 1965, defendant filed “objection” to the action of the court in overruling his motion for discharge. On January 10, 1966, the court called this motion for hearing. Defendant was present in court, represented by his attorney, Mr. Harlan. The state was represented by Mr. Blanck and Mr. Conley. The court stated to Mr. Harlan: “I am willing to open the thing up and do it again if you so desire”. Mr. Harlan said: “Yes sir”. Counsel for both parties then agreed that the change of venue, granted in Boone County, had the effect of wiping out all occurrences in that County and that the hearing would be limited to what happened in Cooper County. Mr. Harlan based his agreement to that effect on the decision in State v. Farrar, 206 Mo.App. 339, 227 S.W. 1078. We neither approve nor disapprove of that conclusion. It is not necessary for us to discuss, further than we have already stated, what occurred in Boone County in order to rule this appeal. This for the reason that defendant here contends that four terms had passed while the case pended in Cooper County; that the state, not the defendant was responsible therefor. In any event we have examined all of the events that transpired in Boone County and have concluded that they would not require us to change our conclusion in this case. However, we find from the record, that the June 1965 term in Cooper County passed without the case being tried because defendant had discharged his counsel and employed another; that he, in open court requested a continuance in order to prepare for trial; and that the state, in open court, announced ready for trial. That continuance was granted upon the request of defendant, after the state had announced “ready”. It cannot be counted as one for which the state is responsible in this proceeding.

However, four terms passed without a trial being had after the case reached Cooper County. The record is silent in all four instances. It even fails to recite that the case was continued. The court, over defendant’s objection, heard oral testimony as to the reason why the case was not tried. Defendant complains of that action. In State ex rel. Stevens v. Wurdeman, supra, the court ruled a similar action for discharge on pleaded facts which were not of prior court record, but which were admitted by the pleadings to be true. We think that case is authority for hearing oral testimony where the record is silent or ambiguous.

Mr. Bear, attorney for defendant at his preliminary hearing, at the time he was arraigned in Cooper County, and until his discharge by defendant when Mr. Stegner was employed, testified to the effect that the Barlish case was set for a trial date in September, 1964; that, a week prior thereto Bear and attorneys for the state agreed that the case be continued and that it be set for trial at a later date; that he agreed that the case be set for trial during the month of May 1965; that, because Circuit Judge Hayes was unable to try the case at the time set because he wanted to attend Judicial Conference, witness agreed to a resetting of the case; that attorneys agreed to confer together with the court, and set the case for trial; that witness was unable to attend that conference because he was required to be in another court at that time; that, in October of 1965, witness filed an application for a continuance of the case, together with an application for mental examination of defendant; that, on the date these matters were to be heard, Mr. Bear was discharged as attorney by defendant, about October 11, 1965.

Mr. Conley was prosecuting attorney of Boone County at all times pertinent to this case. He testified to the effect that defendant was arraigned in Boone County at the June term, 1963; that the case was set for trial on the first day of the October term, 1963; that a change of venue was granted on defendant’s application; that it was set for trial in Cooper County for September 15, 1964, during the June term; that, a week prior to trial date, this witness and Mr. Bear agreed to a continuance because of the absence from the state of a material state witness; that the judge agreed to reset the case; that it was reset for May 20th, during the March term, 1965, the first trial date that the judge could offer; that the case was continued, prior to May 20th, because of the judge’s attendance at Judicial conference, and his inability to hear it; that, during the June term, the case was reset for trial on October 11th and 12th, 1965; that defendant filed application for continuance, which was granted.

The above evidence does not tend to contradict the record in any manner. Defendant offered no contradictory evidence. All of the testimony tends to clarify the record, which is silent. This testimony was sufficient to support the order of the trial court overruling the motion to dismiss.

Furthermore, in State v. Haines, 160 Mo. 555, 61 S.W. 621, 624, the court said:

“ * * *. Moreover, it appears that only one continuance was granted on the application of the state, and it must now be considered as settled law in this state that in the construction of these sections providing for a discharge that they ‘were intended to operate only when there is some laches on the part of the state.’ State v. Huting, 21 Mo. 464; State v. Marshall, 115 Mo. 383, 22 S.W. 452; State v. Billings, 140 Mo. 193, 41 S.W. 778. Continuances ordered by the court of its own motion, for want of time to try a case, or mistrials of the case, have never been held to authorize a discharge. The silence of the record at the April term is the only circumstance upon which the defendant could have based his motion for discharge, but, as was said in State v. Marshall, 115 Mo. 388, 22 S.W. 452, in the absence of proof to the contrary, it must be presumed that the case was continued for want of time to try it. * * * ”. (emphasis ours).

In State v. Nelson, Mo.Sup., 279 S.W. 401, the court approved its ruling in the Haines case, and said: “Mindful of the rights of the accused, and also of those of the public, this court has held that, in considering whether a defendant is entitled to a discharge under these statutes, the bar cannot be invoked where the continuances were made by the court on its own motion; and, if the phrase ‘on its own motion’ were not a sufficient statement of the reason for same, the presumption would nevertheless obtain that the state was in no manner responsible for the delay in the trial thus occasioned. State v. Marshall, 115 Mo. 383, 22 S.W. 452. Likewise, when a record shows a continuance, in the absence of any proof to the contrary, it will be presumed to have been granted on the grounds authorized by the statute. State v. Haines, 160 Mo. 555, 61 S.W. 621. Inability of a court to try a case, not alone on account of a ‘want of time’ as stated in the statute, but for other equally substantial reasons, such as the illness of the judge or the failure of a jury to agree at the last term prescribed in the statute, will not authorize a discharge; nor is a special called term, which makes no mention of the case against the accused, to be counted as one of the terms specified in the statute. State v. Huting, 21 Mo. 464. By parity of reasoning, a continuance by the parties or on the application of the state with the consent of the accused will toll the statute. If otherwise construed, the bar of the statute would not be based upon the laches of the state, as was contemplated in its enactment, but upon an agreement between the parties, thus enabling the accused to create the bar as an escape from prosecution. * * * (Emphasis ours). Also see Osborne v. Owsley, Mo. App., 259 S.W.2d 129, 132; State v. Marshall, 115 Mo. 383, 22 S.W. 452, 453; State v. Cox, 65 Mo. 29, 31.

We conclude that where a continuance is granted upon the defendant’s application, or because of some other action on his part, or upon the order of the court, not requested by the state, the same will not be a ground for discharge under the statute. Where a case is not tried at one or more terms, and the record is completely silent as to the reason why it was not tried, it is presumed, in the absence of proof to the contrary, that the failure of the state to try the case during such term, or terms, was not due to laches on the part of the state.

After the motion herein was overruled a trial was had. Defendant was convicted and sentenced. He was granted an appeal to this court as a pauper. He was admitted to bail. This court requested the Hon. Ronald L. Somerville, of Chillicothe, Mo., to represent defendant on this appeal. He has performed his duties well, “beyond the call of duty” if, indeed, that expression may ever be used in reference to an attorney’s obligation to his client. In any event, we commend Mr. Somerville for devotion of his time and skill in this case, gratuitously, in the best tradition of the bar of Missouri during its long history.

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:
    Estella M. SAUNDERS, (Plaintiff) Appellant, v. CRUSADER LIFE INSURANCE COMPANY, (Defendant) Respondent.
    No. 24655.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application to Transfer Denied Jan. 8, 1968.

      John A. Watkins, Kansas City, for appellant.
    James Wilson Spencer, Davis & Haley, Kansas City, for respondent.
   MAUGHMER, Commissioner.

The plaintiff, Estella M. Saunders, as named beneficiary, sued the defendant, Crusader Life Insurance Company, for the death benefits under a life insurance policy which that company had issued on the life of her husband, David Saunders, who died on January 4, 1965. There was a verdict and judgment for plaintiff. Defendant’s motion for new trial was sustained and plaintiff has appealed.

Crusader Life Insurance Company is a Kansas Corporation, authorized to and doing a life insurance business in Missouri. On December 28, 1961, it issued Policy #5831 to David Saunders, a Missouri resident. The plaintiff, described as the insured’s wife, was the named beneficiary. This particular contract is a “reduced term policy” and was written for a term of 25 years with annual reducing benefits from $12,000 during the first year to $900 for the 25th year. The insured’s death having occurred during the fourth year, death benefits, if any such were payable, were $11,328. The policy itself was received in evidence. It provided for a grace period of 31 days during which an overdue premium might he paid without penalty. Being term insurance, no cash value, extended insurance, or automatic loan privileges existed. Therefore, the coverage lapsed completely 31 days after default in premium payment unless there was a reinstatement. The first premium and all subsequent payments which were made, were on a quarterly basis. The amount of the quarterly premium was $35.-98.

Plaintiff’s first amended petition alleges: issuance of the policy, payment of the first quarterly premium, naming plaintiff as beneficiary, death of the insured on January 4, 1965, proof of death, asserted the policy was “in full force and effect on the date of the insured’s death”, that $11,565 was due and that demand for payment had been made and refused. The petition also prayed for interest at 6 percent from January 4, 1965, penalties and attorneys’ fees for vexatious refusal to pay, and for costs.

It has been held (Connor v. United Insurance Co., Mo.App., 313 S.W.2d 222) that the defense of lapse and forfeiture for nonpayment of premiums is not only an affirmative defense, but it must be pleaded. Defendant’s answer denied plaintiff’s allegation that the policy was in force when insured died, but did not specifically and affirmatively plead lapse and forfeiture for nonpayment of premiums. However, the question of lapse was the only defense put forward, was the only issue litigated and both parties treated it as the main controversy or dispute. Therefore, the issue of payment or nonpayment of premiums must be treated as having been raised by the pleadings. Section 509.500, V.A.M.S.

No witness was called or testified on behalf of the plaintiff. Plaintiff (1) introduced the policy itself into evidence; (2) read admissions of defendant that Contract #5831 on the life of David Saunders was issued on December 28, 1961, the first quarterly premium of $35.98 had been received and accepted, Estella M. Saunders was named beneficiary and (3) read the following requests for admissions which had elicited no responses from defendant; the death certificate of insured was supplied to defendant, plaintiff had demanded payment which defendant refused, and insured died on January 4, 1965. Thereupon plaintiff closed her case. There was no showing as to the date upon which proof of loss, by delivery of death certificate or otherwise, had been made.

The defendant called three witnesses. Mr. Robert P. Lyons, vice-president and agency director of the Crusader Company, said he was the agent who sold the policy sued upon, which he described as term insurance. He testified that such term insurance accumulated no cash values, provided for neither extended insurance nor automatic loans and would lapse and become forfeited if any premium was not paid when due or within the 31 days grace period thereafter. Defendant sought to have this witness testify from his personal knowledge and based upon information derived from his own and from the company’s records as to the date of lapse. The court excluded this oral testimony.

Lillie Owens, supervisor of the premium billing department of defendant company, testified. She said it was her duty to “bill the policy holders when their premium is due, 15 days before the due date”. She identified Exhibit 4, which was received in evidence as a copy of the notice mailed to the insured on September 15, 1964, advising that a quarterly premium of $35.98 would be due on September 28, 1964. This witness stated further that the company, through her department, sent a second notice ap-proximatey 30 days after the premium was due and if payment was not then received within 20 days, a Reinstatement Form Letter was sent. Such a Reinstatement Form Letter (Exhibit 5) was identified and the witness testified that such a letter was mailed to insured in November, 1964.

Mr. Gabriel S. Alexander testified that he was secretary and office manager of the defendant company and as such custodian of the company’s records. He said that these records were made and kept under his supervision. He identified Exhibit 6 as the history record card of policy #5831, Mr. David Saunders, and it was received in evidence. This card shows issuance of the policy on December 28, 1961, quarterly premium of $35.98, and that the last premium ever paid was on July 23, 1964, which payment, considering the date of issue, paid the quarterly premium due on June 28, 1964, and paid for coverage until September 28, 1964, when an additional quarterly premium was due. Mr. Alexander said that this card showed that two quarterly premiums (September 28, and December 28,1964) were due and unpaid when Mr. Saunders died on January 4, 1965. Plaintiff, as a part of its cross-examination of Mr. Alexander, offered in evidence some checks signed by the insured and payable to Crusader. The latest of these checks was dated February 25, 1964, and bears the stamp “Paid” on March 3, 1964, by the bank on which it was drawn.

The court denied defendant’s motion for directed verdict submitted at the close of all of the evidence. The jury returned the following verdict:

“We, the jury, find the issues in favor of the plaintiff and assess her recovery at $11,328.00, and assess interest at $792.96 being the total sum of $12,120.96. It is also recommended by the jury that attorneys fees be paid in addition.
/s/ Orville B. Washburn Foreman”.

It might be noted that this verdict recommends allowance of the penalty of attorney fees, when that issue had not even been submitted to the jury.

Defendant duly filed its motion for new trial and therein, among others asserted errors as follows:

(1) Denial of the motion for directed verdict.
(2) In refusing the testimony of the witness Robert Lyons, agent who wrote the policy, who attempted to testify from the records (before same were introduced) and from his “independent recollection of facts showing that said policy had lapsed”, said testimony not being in violation of the Dead Man’s Statute.
(3)“In giving instructions submitted by plaintiff, in that said instructions permitted indulgence in wild fishing expedition, speculation, and groundless inferences and presumptions”. The court sustained the motion for new trial “for the following reasons”:
(1) The Court erred in excluding material evidence offered by the defendant.
(2) The Court erred in the giving of Instruction number four. We set forth Instruction number four in full:
INSTRUCTION NO. 4
“If you find in favor of the plaintiff, then you must award the sum of $11,328.-00.
“In addition, you may award the plaintiff interest at the rate of 6% per annum on the above amount from the time you believe that the policy proceeds should have been paid.”
“Not in M.A.I.
Submitted by plaintiff.
Given RHK J”.

Plaintiff says Instruction No. 4 was not and is not prejudicially erroneous because a defect as to allowance of interest can be cured through entry of the proper amount of interest by the court. This would undoubtedly be true in those instances where the date on which interest is allowable is clear and definite, for example in a suit on a promissory note where the interest is by the statute or by the instrument itself allowable from the due date. Section 408.020, V.A.M.S. However, in a suit on an insurance policy, the interest is not necessarily allowable from the date of insured’s death or from any other fixed date. This particular policy provided that payment would be made “immediately upon receipt of due proof of the death of the insured, during the continuance of this policy”. The evidence does not show upon what date any proof of death was submitted or upon what date demand for payment had been made and refused, which could be considered as waiving formal proof of death. Furthermore, the plaintiff had no evidence that the insured’s death occurred during the continuance of this policy except such as might result from the prima facie case.

Instruction No. 4 gave the jury no guidance for determining the date upon which interest might be allowed. It made no mention and required no finding as to when proof of loss was made, and did not direct the jury to fix upon a date when the company should reasonably have paid. It merely said “you may allow interest * * * from the time you believe that the policy proceeds should have been paid”. Such an instruction neither limits, restricts nor provides any guidelines to aid the jury. It definitely gave the jury a roving commission, permitted speculation, guesswork and has no approval in M.A.I. In our opinion the giving of Instruction No. 4 was prejudicially erroneous.

Owens v. McCleary, 313 Mo. 213, 281 S.W. 682, 685, was an action for malpractice. A judgment for plaintiff was reversed and the cause remanded for error in giving plaintiff’s Instruction No. 1. The court said:

“Instruction No. 1 directed the jury to determine whether ‘in making said treatment the defendant carelessly and negligently injured the plaintiff’ without giving them any guidance as to the specific acts or omissions, which, under the law, would constitute negligence. It permitted them to base a finding for plaintiff on any theory of negligence which they could construct or evolve out of their own minds, and was therefore erroneous”.

On appeal plaintiff contends respondent has the burden of supporting the trial court’s action in sustaining the motion for new trial without clear specification of grounds. This is undoubtedly a correct general statement of the law. We doubt if it is applicable here because the court did specify the grounds. Furthermore, in our opinion the record does support the action of the trial court in granting a new trial.

Plaintiff also says no offers of proof were made as to excluded evidence and hence no error was preserved. The excluded testimony was quite definitely material evidence that the policy had lapsed. However, we prefer to approve the action of the trial court in granting a new trial for the error in Instruction No. 4.

Apparently plaintiff’s position before the trial court and here is that proof of issuance of the policy, payment of one premium, beneficiary designation, death of insured and demand for payment makes a pri-ma facie case for recovery and casts the burden of proving nonliability (lapse and forfeiture for nonpayment of premium) upon defendant. The cases, including Wilson v. Kansas City Life Ins. Co., 233 Mo.App. 1006, 128 S.W.2d 319, and Connor v. United Insurance Co., supra, so hold and we have no hesitancy in going this far with plaintiff. However, plaintiff, as she must in the instant case if she is to prevail, goes further. She says that regardless of defendant’s evidence and even if plaintiff offers no additional evidence on the contested issue but rather elects or is forced to stand on her prima facie case or presumption, nevertheless, the case must be submitted to the jury as presenting an issue of fact. Plaintiff says this is so, even where, as here, the company records, standing unim-peached, show lapse of the policy and where plaintiff on her part produces no substantial evidence, or any evidence whatever, showing any premium payments which would have kept the policy in force on the date of insured’s death. Plaintiff contends further that in such a situation where reasonable men could only conclude that the policy had lapsed, nevertheless, if the jury chooses to disbelieve the record evidence and rely on plaintiff’s prima facie case or for any other reason, returns a verdict for plaintiff, the courts are powerless to correct such miscarriage of justice. We do not believe that such is the law. If it were, recovery could be had on an insurance policy which clearly had been lapsed for years provided the jury returned a plaintiff verdict even though such a verdict rested entirely upon a presumption and in the face of substantial evidence from which reasonable men could only conclude that there had been a lapse and forfeiture.

This question was explored rather fully and in the light of the Missouri decisions in O’Brien v. Equitable Life Assur. Society of United States, 212 F.2d 383, 385, 386. The United States Circuit Court of Appeals, Eighth Circuit, there ruled: (1) an insured’s unexplained death by violence is alone sufficient to make out a prima facie case of accidental death, but such prima fa-cie case is rebuttable; (2) where plaintiff’s prima facie case depends upon a rebuttable presumption, which is destroyed, the prima facie case collapses with the presumption; (3) the scintilla of evidence doctrine is no longer the law in Missouri; (4) unless plaintiff, in an action to recover under double indemnity, produces some substantial evidence negativing the excepted misconduct asserted by the insurer, a directed verdict for insurer will be proper; (5) a directed verdict for defendant was affirmed. We quote, as pertinent and applicable, from the opinion:

“It is plaintiff’s contention that her burden of establishing a submissible, pri-ma facie case of accidental death was satisfied upon the mere showing of the insurance agreement and the violent death of the insured at the hands of another. Plaintiff insists that defendant had the burden of proving its ‘affirmative defense’ that the insured was engaged in the commission of a felony at the time of his death. Thus it is argued, not without logic, that plaintiff’s prima facie case and defendant’s affirmative defense should have been submitted to the trier of the facts.
* * * * * *
“In effect, plaintiff argues that once this ‘prima facie’ case is established, the burden thereafter rests with defendant to prove its affirmative defense on the excepted risk which, whatever the testimony, creates a question of fact submissible to the jury. * * *. The presumption of accidental death, while accomplishing the function of evidence in so far as plaintiff’s initial burden of going forward is concerned, nevertheless is not evidence of the fact presumed and is merely a rule of procedure or ‘rebuttable legal presumption’. It casts upon defendant the burden of going forward with substantial evidence to the contrary which, if adduced, destroys the procedural presumption on which plaintiff had relied as an evidentiary substitute. As so strikingly quoted by Justice Lamm of the Missouri Supreme Court in Mackowik v. Kansas City, St. J. & C. B. R. Co., 1906, 196 Mo. 550, 94 S.W. 256, 262, ‘ “Presumptions * * * may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts” ’ ”.

Our own Supreme Court (Stack v. General Baking Co. et al., 283 Mo. 396, 223 S.W. 89, 97), quoted with approval this excerpt from Brannock v. St. Louis & S. F. R. Co., 147 Mo.App. 301, 126 S.W. 552, 557:

“[Where] there is evidence on an issue of fact the truth is to be found from the evidence, and not presumed to be so and so, as is done in the absence of evidence”.

We deeply doubt if plaintiff, on the evidence here presented, was entitled to have her case submitted to the jury. However, it is possible evidence justifying submission might be available on a retrial. We shall, therefore, on this appeal simply sustain and approve the action of the trial court in granting a new trial. We do this because of the error committed in giving Instruction No. 4.

The order and judgment awarding defendant a new trial is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: PALMORE, Judge.

text:
    CITY SUPPLY COMPANY, Appellant, v. Harmon MUNDAY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.
    Robert H. Hutchison, Jr., Hutchison & Hutchison, Columbia, for appellant.
    Earl Huddleston, Columbia, for appellees.
   PALMORE, Judge.

By a judgment entered on September 5, 1967, the Adair Circuit Court affirmed an award of the Workmen’s Compensation Board in favor of Harmon Munday against the appellant, City Supply Company. Appellant’s notice of appeal to this court was duly served and filed on September 11 and 12, 1967. On November 3, 1967, without having designated the portions of the record to be used on the appeal, appellant filed with the clerk of this court the clerk’s transcript of proceedings in the circuit court, exclusive of the record of proceedings before the Workmen’s Compensation Board. On November 10, 1967, Munday moved this court to dismiss the appeal for failure to make a designation. There is no response.

The method of perfecting an appeal to this court in a workmen’s compensation proceeding is set forth in KRS 342.290. Subsection (2) provides that the procedure shall be the same as in civil actions insofar as it is applicable and does not conflict with KRS Chapter 342. Subsection (3) calls for a designation of the record and authorizes the original record of the proceedings before the board to be incorporated in lieu of a transcript thereof. This requirement of a designation serves the same purpose as and is consistent with CR 75. It is indispensable. Failure to comply with CR 75.01 is ground for dismissal of the appeal. Commonwealth, Dept. of Highways v. Black, Ky., 329 S.W.2d 192 (1959).

Appeal dismissed.

All concur.


author: DAVIS, Commissioner.

text:
    H. S. GEORGE, dba George’s Self Service Liquor, U.S. Highway 68, Appellant, v. ALCOHOLIC BEVERAGE CONTROL BOARD of the Commonwealth of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.

      Mark E. Gormley, Versailles, for appellant.
    John D. Darnell, Frankfort, for appellees.
   DAVIS, Commissioner.

The Alcoholic Beverage Control Board (hereafter ABC) ordered a five-day suspension of the retail beer license and retail package liquor license held by H. S. George, dba George’s Self Service Liquor, U. S. Highway 68, Lebanon. The suspension was ordered for George’s charged violation of KRS 244.290 which proscribes permitting licensed premises to remain open for any purpose “* * * at any time during the twenty-four hours of a Sunday * * Pursuant to KRS 243.560, George appealed to the Franklin Circuit Court which affirmed the order of the Board, and he now prosecutes this appeal as provided by KRS 243.590.

At the hearing before the Board, two ABC agents testified that on a Sunday morning they observed the licensed premises of George between 9 and 10:15 A.M. The agents recounted that they saw George unlock the premises from the inside and “let out” a man who drove away in a car; then George came outside through the front door, locked it, and carrying what appeared to be a cigar box and a bottle of liquor, got into an automobile. George drove around the licensed premises building and picked up a man who had been standing behind the building and drove away. About twenty minutes later, George returned alone and entered the premises. Before entering the building, he was seen to beckon a man who was seated in an automobile near the premises. The beckoned man drove his car around to the west side of the liquor store and went in the store. While he was inside with George, another car was driven to the premises, and the driver of it alighted and went in the store. Each of the individuals who had gone in were seen to come from the premises carrying a sack containing a box or package. Just at this time a city-owned truck was parked near the store, and its driver entered the premises. About two minutes thereafter another car carrying six persons stopped by the store, and one of the occupants of it entered the store. At this time the two ABC agents went in the licensed premises and identified themselves. While they were there, a soldier came to the front door of the building and was informed by George “* * * that he couldn’t let him have anything.” The soldier gave George a traffic citation, apparently with the hope that George could “fix it.”

George admitted that he had opened the premises and sold some ice and some peanut-butter crackers as well as some cigars. George denied having sold any alcoholic beverage, and there was no direct evidence that he did sell any.

The appellant calls attention to City of Frankfort v. Triplett, Ky., 365 S.W.2d 328, and Hamilton v. International Union of Operating Engineers, Ky., 262 S.W.2d 695, in support of the proposition that a statute must not be interpreted so as to bring about an absurd or unreasonable result. We agree that the proposition is a sound one.

Appellant cites City of Louisville v. Helman, Ky., 253 S.W.2d 598, as holding that the court should look behind the strict wording of a statute to ascertain the purpose of the statute and the mischief it is designed to remedy. We acknowledge this principle as correct.

Appellant relies upon Thompson v. Commonwealth, Ky., 107 S.W. 223, 32 Ky.Law.Rep. 714; Dunkle v. Village of Junction City, 2 Ohio App. 473; and Richardson v. State, 3 Ga.App. 313, 59 S.E. 916, in support of his contention that George’s activities were not within the purview of KRS 244.290. Without undertaking an analysis of the foreign cases cited, we call attention to Thompson v. Commonwealth, just mentioned, and note that it is readily distinguishable from the case at bar. In Thompson, a saloon keeper at Springfield entered his saloon alone on election day for the purpose of procuring his own registration certificate to enable him to vote. No other person entered the premises, and the door was locked while the saloon keeper was in it. Such is not the case before us. It is our view that opening the premises on Sunday “for any purpose” as denounced by KRS 244.290 includes the activities of George as proven in this record. The obvious purpose of the statute is to insure that licensed premises are not open for business on Sunday, unless the alcoholic beverages are in a locked department as permitted by KRS 244.290. The. purpose and enforcement of the statute would be frustrated by making the law inapplicable in situations similar to the one at bar. The appellant failed to demonstrate any impelling necessity for his own entrance upon the premises so as to make applicable the principles expressed in Thompson v. Commonwealth, Ky., 107 S.W. 223, 32 Ky.Law.Rep. 714. So far from the Board’s decision leading to an absurd or unreasonable result, we think the construction urged by appellant would lead to such a result. We have no doubt that the purpose of the statute was to get at the very type of situation presented here. The Board had abundant evidence to support its findings, and the. findings will not be disturbed on appeal in such circumstances.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    John O’BRYANT, Appellant, v. Robert THEOBALD et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.

      Charles J. Schear, Newport, Manny H. Frockt, Louisville, for appellant.
    E. P. Sawyer, William H. Walden, Louisville, for appellees.
   CULLEN, Commissioner.

John O’Bryant, a member of the county police force of Jefferson County, was by order of the chief demoted from sergeant to patrolman. He appealed the demotion to the county police force merit system board. After holding hearings on the appeal, but before issuing a ruling, the board on its own initiative preferred charges of misconduct against O’Bryant upon which charges the board proposed to remove him from office. Simultaneously the chief suspended him, which action he immediately appealed to the board. After full hearings on its own charges and upon the appeal from the suspension order, the board ruled against O’Bryant on all counts, upholding the chief’s orders of demotion and suspension, and removing O’Bryant from office. At that time the controlling statutes (KRS 78.-400 to 78.460) did not provide for an appeal from the board (by a 1966 amendment to KRS 78.455 an appeal with de novo trial now is provided for), so O’Bryant brought this independent action in the circuit court seeking to have the action of the board set aside as arbitrary. The circuit court entered judgment upholding the board’s action, and the appeal here is from that judgment.

Under KRS 78.445 a member of a county police force may be removed, suspended, laid off, reduced in grade, or fined by the chief, “for any cause which will promote the efficiency of the service.” A member so disciplined is entitled to a written statement of the “reasons why the described action is taken,” and may file an answer within ten days, but is not entitled as a matter of right to a “trial or examination of witnesses.” Under KRS 78.455, disciplinary action by the chief is “subject to review” by the merit system board, but that statute provides that a hearing shall be granted only if the board, after investigation, is of the opinion that the disciplinary action by the chief was brought about or influenced by reason of (1) political activity, (2) religious belief, or (3) prejudice.

On O’Bryant’s demotion he was furnished with a statement listing a number of reasons or charges, of which the first two seemed to be the principal ones. They were (1) that O’Bryant in addressing a troop of patrolmen under his charge threatened to demonstrate by physical combat “out behind the woodshed” that he was “the bossand (2) that O’Bryant accused a police district commander of “pressuring” the subordinate officers and patrolmen to sign a petition opposing passage by the state legislature of a bill which would have fixed a 40-hour week for policemen.

In ruling on O’Bryant’s appeal from the order of demotion the merit board simply stated that it was of the opinion that the action of the chief was not brought about or influenced by political activity, religious belief, or prejudice. O’Bryant argues that the board did not make sufficient findings of fact in that it did not state which, if any, charges it found him guilty of. He also argues that there was no substantial evidence to support a finding of guilt.

As we have pointed out, the board did not purport to determine the sufficiency of evidence of O’Bryant’s guilt on any of the specific charges. It simply found that the action of the chief was not influenced by political activity, religious belief, or prejudice. Under the statute, having made that finding, the board was not required to pass on the sufficiency of the evidence.

In any event, we think there was adequate evidence at the hearing to support a finding of guilt on the two principal charges. O’Bryant suggests that the offenses charged were inconsequential and insignificant. It is our opinion, however, that it does not take so serious a charge to warrant a demotion, as the statute says to “promote the efficiency of the service,” as it would to justify more severe discipline. The conduct complained of was not calculated to promote orderly discipline and respect for higher authority such as is necessary for a police department.

As hereinbefore stated, the merit board preferred charges of misconduct against O’Bryant after it had completed the hearings on his appeal from the demotion order. Before preferring these charges the board interviewed several witnesses and took their statements, in closed session. O’Bryant maintains that this was unfair and was calculated to create bias and prejudice, and that it violated the provision of KRS 78.4S0 that in no case, after full public hearing, shall the board “in executive session receive any further evidence or communication from any source whatsoever prior to reaching its determination and conclusion.”

We think there was no violation of the statute because the information obtained from the interviews did not relate to or bear upon the demotion appeal upon which the board had held hearings. It appears that the statute relates only to hearings on charges preferred by the board itself. We think also that there was no unfairness or inducement to bias or prejudice in the action of the board in not ruling on the demotion appeal before initiating the removal charges. It is reasonably deducible that the board felt that it would be more fair to O’Bryant to withhold announcement of its decision on the demotion appeal until the other charges were decided, in order that publicity and embarrassment might be minimized. The board gave O’Bryant a full-fledged hearing on the misconduct charges preferred by the board, and it appears from the record that the hearing was entirely fair and free of indications of prejudice.

The charges of misconduct preferred by the board related to alleged consorting by O’Bryant with a married woman during duty hours. The charges, in three paragraphs, stated that (1) O’Bryant left his post of duty on several occasions, without permission, and engaged in improper and immoral conduct; (2) such conduct became known in the district to his fellow officers; and (3) the conduct had been detrimental to the morale, discipline and efficiency of the department. In its decision the board simply said that “the charges preferred June 10, 1964 are sustained.

O’Bryant argues that the decision on the misconduct charges was arbitrary in that it was not supported by substantial evidence. It is sufficient for us to say that we find in the record ample evidence to sustain the decision.

O’Bryant further argues that the charges were vague and ambiguous so that he was unable to prepare a defense. However, our examination of the record convinces us that O’Bryant fully knew and understood what he was charged with. He contends also that the board did not make sufficiently specific findings of fact, but we think in view of the fact that there was,only one basic charge against him, that the finding that “the charges * * * are sustained” was sufficiently specific.

O’Bryant’s final contention is that the chief had no authority to suspend him without pay pending the hearing of the charges preferred by the board. It is our opinion that this authority clearly is conferred by KRS 78.445.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Tilford REPPERT and Florence Saylor Reppert, His Wife, Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant, Kentucky Highway Department.
    John P. Allen, Allen & Clontz, Mt. Vernon, for appellees.
   OSBORNE, Judge.

This is an appeal by the Department of Highways from a judgment of the Rock-castle Circuit Court awarding damages to appellees in the amount of $20,000 for the taking of 6.96 acres of land. Prior to the condemnation, appellees owned a farm consisting of 39.85 acres. The strip taken was that part upon which was located a dwelling house and several improvements. Appel-lees are now left with two separate tracts, one of 17.92 acres with a barn, shed and two ponds, which is now landlocked. The other is a tract of 14.97 acres with no improvements. The jury found the before value of $26,000 and an after value of $6,-000, thereby awarding $20,000 for the land and improvements taken.

The Highway Department charges that the trial court committed error in two respects. First, the verdict is palpably excessive and not supported by evidence of probative value. Second, that the trial court committed error in its failure to sustain objections made to appellees’ closing argument. We will deal with these contentions in reverse order. The closing argument complained of consisted of assertions by counsel that the contract appraisers employed by the Highway Department would always testify to ridiculously low values. And, if the jurors were present in court long enough they would witness this happening time and time again. Even though it might have been improper to refer to what counsel expected the witnesses to do in future cases, it was proper for him to comment upon what he reasonably believed to be the motives behind appellant’s witnesses. Commonwealth, Department of Highways v. Srygler, Ky., 403 S.W.2d 26. Great latitude is allowed in closing arguments. Each advocate is free to draw reasonable conclusions from the facts before the court. Jurors expect this and it has long been accepted in our judicial system. It does not appear that the argument in this instance was so improper as to exceed the rules of propriety.

The next ground for reversal is one that makes its appearance before this court with a great degree of frequency. Appellant contends that the value set by appellees’ witnesses was based upon comparable sales and that the sales testified to do not support the values given by the witnesses. While it is true that we have held verdicts excessive when the value set by the landlord’s witnesses greatly exceeded all comparable sales. Commonwealth, Department of Highways v. Tabor, Ky., 402 S.W.2d 434; Commonwealth, Department of Highways v. Quisenberry, Ky., 402 S.W.2d 427; Commonwealth, Department of Highways v. Gibson, Ky., 401 S.W.2d 71; Commonwealth, Department of Highways v. Hayes, Ky., 394 S.W.2d 735; Commonwealth, Department of Highways v. Wheat, Ky., 387 S.W.2d 856, 857, these cases all involved property much more closely comparable than that in the present case. For example, the Wheat case, supra, involves city lots, side by side, of the same depth and with identical potential value. In this case the comparables are not so compatible. All the sales were several years before the taking and there was testimony that land values had been increasing in the county during that time. The other farms were all larger and two of them did not front on major highways. One of the sales was between relatives. For these reasons, we do not believe the Wheat rule should apply. This conclusion is further supported by the fact that the Commonwealth’s appraisers valued the property at $450 per acre, which is well above the $226 per acre that counsel now argues should be considered its maximum value.

Appellees’ witnesses were well qualified. They included a licensed real estate broker and an employee of the Cumberland Production Credit Association. The latter had appraised the farm for a loan shortly prior to these proceedings. We further note that the witnesses for the Commonwealth do not differ greatly with the appellees’ witnesses except as to the before value. The testimony is as follows:

FOR APPELLANT
Witness T. E. Page Before Value After Value Difference
Gene Spaulding 38 $18,000 $6,500 $11,500
Lloyd Owens 66-67 18,000 6,000 12,000
D. M. Cress 71 18,000 6,000 12,000,
Arthur Green 85 17,000 5,800 11,200
FOR APPELLEES
Witness T. E. Page Before Value After Value Difference
Tilford Reppert 120-121 $27,000 $4,000 $23,000
Floyd Owens 128-129 26,000 to 27,000 5,000 to 6,000 21,000
Willie Lamb 133 24,000 4,800 19,200
Roy Brown 139-140 26,000 6,000 20,000

We believe the jury, upon the basis of the evidence, was fully justified in accepting the testimony of appellees’ witnesses and we do not find the verdict so excessive as to require a reversal.

The judgment is affirmed.

All concur.


author: JOHN J. WINN, Special Commissioner.

text:
    Evelyn F. EWING, Appellant, v. Dale MOODY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.
    Stanley A. Stratford, Campbell & Strat-ford, Louisville, for appellant.
    John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellee.
   JOHN J. WINN, Special Commissioner.

Appellant Evelyn F. Ewing and appellee Dale Moody collided in their automobiles on November 5, 1963 at the intersection of Emerson Avenue and Bardstown Road in Louisville, Kentucky. As a result Mrs. Ewing suffered a sprained ankle and an injury to her rib cage on the right side, for which she was treated by Dr. James W. Bryan. She used crutches for a while and later a cane, and she returned to work while still using them. During this initial period she lost eight days of employment for which her pay would have been $149.76. Upon the advice of her physician she discontinued the use of crutches or cane and instead wore orthopedic shoes prescribed by him. On December 1, 1963, upon her return from a drive with her husband, she fell off the porch at her apartment and fractured her hip, which required her to be hospitalized and to expend substantial sums for medical care and domestic help and she lost much time from her employment and was caused to endure pain and suffering and she alleged her power to earn money was permanently impaired.

At the conclusion of all the evidence the jury was instructed to find for the plaintiff such sum in damages as would reasonably compensate her for her injuries suffered as a direct and proximate result of the collision. Since there is no cross-appeal there is no reason for us to consider or review the evidence in regard to the accident itself or the correctness of this peremptory instruction.

Over the objections of the defendant, the plaintiff was permitted to and did prove all of her damage, hospital and medical expenses, loss of wages, pain and suffering, employment of domestic help, diminution of her power to earn money, resulting from her subsequent fall as well as those resulting solely from the collision itself. The jury returned a verdict for the plaintiff in the amount of $1,150.00.

She complains of the verdict and urges that the judgment pursuant thereto should be reversed, first because the recovery is so wholly inadequate as to indicate at first blush that it was arrived at as a result of passion and prejudice, and second that it resulted from erroneous instructions. Obviously the jury excluded from its assessment of damages all those which it believed derived from the fall from the porch and the broken hip, and if the instruction by which they were authorized so to do was correct, then the recovery was not so inadequate as to require reversal. While it is argued now that much of the service by Dr. Bryan and other expenses subsequent to the fall were for the treatment only of the sprained ankle, the amounts suggested in her motion and grounds for a new trial as special damages attributable solely to her ankle injury total $650.00, leaving an excess of recovery of $500.00 which, although by no means generous, is substantial enough to remove it from the application of the rule requiring some award beyond the special damages enunciated in the Lawson case referred to in Wall v. Van Meter, 311 Ky. 198, 223 S.W. 2d 734, 20 A.L.R.2d 272.

Certainly the recovery was patently inadequate to compensate the appellant for her broken hip. This is the crux of this appeal as it was the dominant theme of contention throughout the trial in circuit court.

The court instructed the jury to find for the plaintiff compensation for all of her damages suffered as a direct and proximate result of the collision not to exceed $21,489.50, but by Instruction No. 2 provided as follows:

“(2) In your award to the plaintiff, Mrs. Ewing, you will not allow her any sum by way of damages for any suffering, mental or physical, or permanent impairment of her power to labor and earn money or for medical expenses, lost time or additional household help sustained by Mrs. Ewing as a direct and proximate result of the fall at her home on December 1, 1963 unless you believe from the evidence that such fall was the direct and proximate result of the injuries sustained by the plaintiff in the collision of November 5, 1963.”

Appellant insists that the only testimony as to the circumstances of the fall establishes her theory of the case that she fell because her ankle gave way, that it gave way because of its weakened condition which was a direct and proximate result of the collision, and therefore her injury suffered in the fall was a direct and proximate result of the collision and she was entitled to a directed verdict covering all of her injuries. And failing that, she offered an instruction, the converse of the one given, stating that she should be compensated for her injuries received in the fall if it was a direct and proximate result of the collision, and another defining proximate cause and stating further that one who impairs the bodily efficiency of another is liable for harm which would not have been sustained except for such impairment.

Under the offered instruction, just as under the one given, it would be incumbent upon the plaintiff to sustain the burden of establishing that the fall was the proximate result of the collision. Although there was no direct testimony as to any other agency producing the fall, we believe that the variance and lack of certainty in the testimony of the appellant and her husband was sufficient to justify a submission to the jury. The instruction given was modeled after the one approved in the case of Eichstadt v. Underwood, Ky., 337 S.W.2d 684.

In our opinion, a jury question existed which was submitted under proper instructions.

The judgment is affirmed.

WILLIAMS, C. J., and MONTGOMERY, HILL, MILLIKEN, PAL-MORE and STEINFELD, JJ., concur.


author: EDWARD P. HILL, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ina G. Goetz NANTZ et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Robert M. Short, Humphreys, Jones & Short, Owensboro, M. T. Quinton, Jr., Madison-ville, for appellant.
    Charles J. Kamuf, Beard, Rummage & Kamuf, R. T. Sweeney, Owensboro, for ap-pellees.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment fixing compensation at $2600 for land taken and $2400 for the use of a temporary easement in connection with the reconstruction and widening of U. S. 60 between Owensboro and Lewisport in Daviess County.

Appellees’ property before taking comprised a lot 360 by 200 feet with a restaurant operated under the name Eastway Cafe and an old building to the rear of the restaurant which has since been removed and replaced by a concrete block building.

Appellant condemns a strip 200 by 7 feet in fee from the front of the lot and a strip 200 by 10 feet for temporary use adjoining the tract taken in fee. After completion of construction, the restaurant building will be about 20 feet from the right of way.

No improvements are disturbed, but ap-pellees contend the taking of the front of their lot leaves insufficient room for parking in the front, thereby necessitating the remodeling of their building so customers may enter from the side.

The Commonwealth takes the position on this appeal that (1) the verdict is excessive and unsupported by probative evidence and (2) incompetent evidence was admitted over its objection.

The county court commissioners allowed appellees $870. The county court entered judgment in that amount, from which the appellees appealed to the circuit court.

The only witness for appellant fixed the before value of the property at $38,000 and the after value at $36,800, for a difference of $1200. This witness estimated the value of the use of the strip of land taken for temporary use at $260.

The evidence of the three witnesses for the landowners, including that of appellee Ina Nantz, is poles apart. They testified to before values ranging from $90,000 to $95,-000 and after values ranging from $69,000 to $76,000, for differences ranging from a low of $14,000 to a high of $25,000. One of these witnesss fixed the value of the temporary use at $2000; and appellee Ina Nantz stated it was $2400, the exact amount the jury awarded therefor.

Obviously the verdict of the jury for land taken in fee is well within the range of the testimony. We do not consider it excessive.

The amount awarded for temporary use requires more detailed analysis of the evidence. The complaint sought the temporary use of the ten-foot strip for a period of two years. From the evidence, it appears well over one year was consumed in the improvements undertaken. Two access approaches were provided part of the time, but there were times when customers could not get to appellees’ place of business. This court has decided uniformly that the landowner is entitled to the reasonable rental value, not loss of profits or compensation for inconvenience for the land taken for temporary use. Cf. Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720. The landowner may not recover for loss of access so long as he is provided a reasonable means of access to his property. Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466; Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104; and Commonwealth, Department of Highways v. Denny, Ky., 385 S.W.2d 776.

In situations where the taking for temporary use includes the entire tract owned by the landowner, there is usually little difficulty in determining the fair rental value of the use. Where there is only partial taking for temporary use as was said m Commonwealth, Department of Highways v. Ray, Ky., 392 S.W.2d 665, 669:

“It is difficult if not impossible to apply if restricted to a strip of land used temporarily in highway construction work. Such strip itself ordinarily has no market rental value because nobody would rent it. ‘Diminution in value of use’ cannot constitute a measure because the property owner has no use of it at all.
⅜ >Jí jji ⅝ ⅝ ⅝
“We do not think occupancy or nonoc-cupancy by the owner is of any significance in fixing, damages for a temporary highway construction easement. * * * A proper standard is the diminution in the fair rental value of the landowner’s adjacent property by reason of the occupancy by the Commonwealth.” (Emphasis ours.)

We believe the reference in the above quotation to “adjacent” property was unnecessarily and unintentionally restrictive in that it apparently left out of consideration the strip subjected to the temporary easement.' The true measure is the diminution in the fair rental value of the landowner’s property as a whole, which includes both the strip subjected to the easement and the adjacent property affected.

There was evidence that the strip of land taken for temporary use contributed substantially to the value of the use of the entire tract as a parking area. Furthermore, there was evidence appellees could have rented small portions of their frontage, for instance, a strip 12 by 20 feet to be used as a fruit stand for as much as $80 per month. It should be noted that the land in controversy is situated on a heavily traveled portion of an important east-west state highway and enjoys a commercial classification in the midst of residential areas according to the local zoning regulations.

It is concluded by a majority of the court that the award for temporary use is not excessive.

The quality and competency of evidence has been considered, and we find no merit in appellant’s position in this regard.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, OSBORNE, PALMORE, and STEIN-FELD, JJ., concur.

MONTGOMERY, J., dissents.

MONTGOMERY, Judge

(dissenting).

I dissent on the authority stated in Commonwealth, Department of Highways v. Taylor County Bank, Ky., 394 S.W.2d 581, and Commonwealth, Department of Highways v. Hunt, Ky., 399 S.W.2d 294.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Howard E. SELLERS, a Widower, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort; Strother Kiser, William O. Gilbreath, Lexington, for appellant.
    William P. Curlin, Jr., Louis Cox, Hazel-rigg & Cox, Frankfort, for appellee.
   STEINFELD, Judge.

For the construction of the Blue Grass Parkway the Commonwealth condemned 26.14 acres of land in fee and 1.61 acres for a drainage easement. The Commonwealth has appealed from a judgment awarding Sellers $45,402.00. It claims that the verdict was “monstrously and shockingly excessive” and that certain testimony should have been stricken. We affirm.

Prior to the taking Sellers owned a highly productive farm shaped something like an equilateral triangle with the base of the triangle fronting on Kentucky Highway 33, which is the main road from Versailles to Harrodsburg. It contained 122.45 acres and was located approximately two miles south of Versailles, Kentucky. The farm which was considered to be one of the better farms in Woodford County had an eight bent tobacco barn with stock pens and a loading chute, a 96 foot never failing deep well operated by a jet pump and two 15 foot concrete stock watering troughs with automatic floats. It carried a 4.2 tobacco base and was principally used to graze cattle with the capacity for 75 cattle throughout the summer. It had an excellent water supply. Prior to the taking there were approximately 4,100 feet of frontage on Highway 33.

After the taking the farm was divided by the non-access Parkway into two smaller triangular tracts. The northern portion contained 56.12 acres and the southern 41.80 acres. The frontage on Highway 33 was so altered that the northern tract had 629 feet and the southern tract 1,071 feet.

The well, jet pump, and concrete watering troughs were within the area taken, leaving the remainder without water. The tobacco barn, stock pens and loading chutes were all located on the northern tract but there were no improvements on the southern tract. The entrances to the two tracts were from Kentucky 33 at the extreme ends of the base of the two triangles and were approximately 4,150 feet apart. To get from one tract to the other it became necessary to travel this distance along the highway.

The commissioners in the county court awarded $34,077.00 for the land taken and $1,000.00 for the easement. Judgment was entered accordingly from which all parties appealed to the circuit court. After all evidence was presented the jury was instructed as directed in Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963). It found that the value of the property before the taking was $1,000.00 per acre or a total of $122,450.00 and after the taking that the value was $800.00 per acre, a total of $77,048.00.

The Commonwealth produced three witnesses. One testified that the value before the taking was $83,600.00 and the after value was $60,665.00; that the difference was $22,935.00. Another said that the before value was $84,000.00, the after value $61,009.00 and that the difference was $22,-991.00. The third witness was unable to state the value before or after the taking but it was his opinion that the difference in value was $27,000.00.

For the owner four witnesses testified as follows:

BEFORE VALUE AFTER VALUE DIFFERENCE
“M. L. Garrison $117,500 $80,800 $36,700
Clinton Newman 146,000 96,000 50,000
Jim Ed Bond 122,450 77,048 45,402
Howard Sellers, Jr. 122,450 73,460 48,990”

Mr. Jim Ed Bond testified that he had been engaged in the real estate business in Woodford County for 51 years. His qualifications to testify as an expert in this field were obvious. He explained to the jury that he believed that the property was worth a minimum of $1,000.00 an acre on the day it was taken and $800.00 per acre immediately thereafter. He said that he based the values on its location, road frontage, farming capacity, water, tobacco base and the other factors that go with the operation of a farm. Splitting the farm into two different farms ruined it, he explained. This is a proper consideration. Com., Dept. of Highways v. Sea, Ky., 402 S.W.2d 842 (1966); Com., Dept. of Highways v. Cammack, Ky., 408 S.W.2d 615 (1966); Com., Dept. of Highways v. Dennis, Ky., 409 S. W.2d 292 (1966); Com., Dept. of Highways v. Shields, Ky., 411 S.W.2d 476 (1967); Com., Dept. of Highways v. Brown, Ky., 415 S.W.2d 370 (1967). He testified that he had made a study of comparable sales in the county including at least 12 farms which he had sold in the last four or five years. The jury’s verdict was that these were the values. After carefully examining the testimony of this witness we find that it alone supports the verdict of the jury, which is within the range of all the testimony. Com., Dept. of Highways v. Reed, Ky., 414 S.W.2d 904 (1967). We are unable to say that at first blush the verdict was rendered under passion or prejudice and that it is excessive. Com., Dept. of Highways v. Muir, Ky., 412 S.W.2d 231 (1967); Com., Dept. of Highways v. Boone, Ky., 412 S.W.2d 236, 237 (1967); Com., Dept. of Highways v. Roberts, Ky., 412 S.W.2d 883 (1967); Com., Dept. of Highways v. Hunt, Ky., 414 S.W.2d 897 (1967).

The Commonwealth contends that the court erred in overruling its timely motion to strike the testimony of Mr. Clinton Newman because his estimates of value were completely without foundation and his testimony was so vague, evasive and unrealistic that it had no probative value whatsoever. The principal ground on which it relies is that Mr. Newman did not base values on comparable sales. For 25 of the 30 years Mr. Newman had worked for the United States Government in the Department of Agriculture, he served as an appraiser of farm real estate, farm dwellings and as an area supervisor. Qualified experts on property values are not required to refer to comparable sales. Com., Dept. of Highways v. Wilder, Ky., 412 S.W.2d 255 (1967). Comparable sales are helpful in determining value but other methods may be used. Com., Dept. of Highways v. Harris, Ky., 413 S.W.2d 78 (1967); Com., Dept. of Highways v. Woolum, Ky., 415 S.W.2d 83 (1967); Com., Dept. of Highways v. Hunt, supra. This witness was qualified to testify to the values which were in issue. Whitesburg Mun. Hou. Com. v. Bates, Ky., 412 S.W.2d 225 (1967). It was proper for the jury to consider his testimony.

The judgment is affirmed.

All concur.