author: STEWART, Judge.

text:
    Ervine TURNER and Treva Howell, Appellants, v. James R. McINTOSH et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.
    Jesse S. Hogg, Winchester, J. Douglas Graham, Campton, for appellants.
    Hunter M. Shumate, Shumate & Shu-mate, Irvine, Henry L. Spencer, William P. Bach, Jackson, E. E. Bach, Campton, O. J. Cockrell, Jackson, Louis E. Arnold, Cincinnati, Ohio, for appellees.
   STEWART, Judge.

James R. McIntosh filed this action against Ervine Turner and Treva Howell to quiet title to a certain tract of land lying in Breathitt County. This appeal is from the judgment which adjudicated McIntosh to be the owner of the tract.

W. L. Clair, prior to his death in 1920 or 1921, owned in fee simple a farm, consisting of between 75 and 150 acres, situated on War Creek in Breathitt County. He died intestate, leaving a widow and 14 children. Their interests in this farm remain undivided at the present time; the widow died sometime after October, 1950.

The children of W. L. Clair were Lucinda Tomlin, Luther Clair, John Clair, Cora. Combs, Ervine Clair, Nancy Turner, Rosa Turner, George Clair, Willie Clair, Dora. McIntosh, America Patrick, Henry Clair,. Angeline Spicer, and S. E. Clair.

Prior to 1949 various ones of these heirs had transferred their undivided interests to other heirs by means of almost never recorded, and often informal and vague, conveyances. McIntosh in his complaint alleged ownership of all the interests of the heirs of W. L. Clair in the farm, other than those of Henry Clair, America Patrick, and .five sixths of the Willie Clair interest.

S. E. Clair, who had'lived on the farm previously, moved off in 1947 after giving McIntosh a deed for the interests he owned in the land. McIntosh then moved his father on the farm, and he remained in peaceful, open possession of this land, with no one asserting ownership to any portion thereof, until about 1959. He has paid the taxes on the whole tract since 1947. Then oil was discovered on War Creek; producing wells were brought in on adjoining land; and traffic in real estate on War Creek became very active. Prior to these events the farm had little value.

On February 26, 1959, McIntosh executed an oil and gas lease to Joe A. Saunier & Associates, an appellee herein, covering the entire tract. This lease was afterwards assigned to War Creek Oil & Development Company, also an appellee herein, which drilled a producing well and proposes to further develop the oil production on the land.

By reason of a conveyance dated September 7, 1959, and recorded on September 10, 1959, Ervine Turner and Treva Howell, appellants herein, are claiming two undivided interests in the land; namely, that of S. E. Clair and that of Angeline Clair Spicer, which these two persons had inherited from their father, W. L. Clair. McIntosh also contends he owns these interests by virtue of a deed dated December 27, 1947, but not recorded until March 3, 1961.

The purchaser of the oil, Ashland Oil and Refining Company, refused to pay for the oil until an adjudication of the rights and claims of all the parties was made. Consequently, McIntosh, Joe A. Saunier & Associates and War Creek Oil & Development Company, brought this action to quiet title. They joined as defendants all heirs, both known and unknown, of W. L. Clair, as well as Ervine Turner, Treva Howell, and Russell Reynolds, an oil-rig operator who had drilled a well on the land, apparently on the authority of a lease he held from some of the heirs.

Appellants maintain the trial court, in ruling on the various claims, erred in the following instances:

1. In adjudging McIntosh instead of them to be the owner of the S. E. Clair and Angeline Clair Spicer interests;

2. In decreeing McIntosh to have title to more than one-seventh of the Willie Clair interest; and

3. In ordering that appellants should pay costs in respect to the determination of an issue to which they contend they were strangers.

The trial court found, and the evidence established, that S. E. Clair, by deed dated December 27, 1947, conveyed to McIntosh not only the interest which this grantor held by inheritence, but also the interest of Angeline Clair Spicer which he had previously acquired from George Clair. Angeline Clair Spicer executed and delivered a deed some time before 1938 to George McIntosh of her inherited ihterest. According to the undisputed testimony of George McIntosh this deed, which was never recorded, became lost or misplaced. Under date of February 9, 1938, George McIntosh conveyed the Angeline Clair Spicer interest to George Clair, who conveyed this same interest to S. E. Clair on May 18, 1938. In the deed from the latter to McIntosh three other interests besides his own and that of Angeline Clair Spicer were conveyed.

From the foregoing recitation of facts, it appears that McIntosh had good title to the S. E. Clair and Angeline Clair Spicer interests as against them. However, McIntosh, as mentioned heretofore, did not record his deed by which he obtained their interests until March 3, 1961. He testified he tried to do this several times but the county court clerk refused to accept the deed for record because the sources of title of S. E. Clair as to the interests conveyed were not dearly set forth therein.

Relying upon the deed dated September 7, 1959, and recorded September 10, 1959, which conveyed the S. E. Clair and Angeline Clair Spicer interests to them, appellants contend they are bona fide purchasers of these two interests for value without notice of any outstanding equity, and on this appeal ask that the trial court’s' ruling to the contrary be reversed.

S. E. Clair testified he told appellant, Turner, he had entered into an agreement to sell the interests involved in this litigation to McIntosh, but that the latter did not pay the consideration he had asked for the property and, for this reason, he did not deliver a deed to him. (In the record of this case is a deed which indicates on its face that S. E. Clair conveyed all his interests to McIntosh by deed dated December 27, 1947.)

Appellant, Turner, testified he made no inquiries about the possession of the farm by McIntosh or his claim to it. He did state, however, he searched the records in the Breathitt County court clerk’s office and, although he found no deed vesting title to the two interests in McIntosh, he saw where McIntosh, on February 26, 1959, had executed an oil and gas lease, embracing the whole farm, to appellee, Joe A. Saunier & Associates. In short, the position taken by appellants appears to be that, since S. E. Clair testified he had not made any conveyance to McIntosh, they could accept this statement as the truth and dispense with any further investigation.

On this phase of the case, the trial court found that appellant, Turner, before he and Treva Howell purchased the two interests, “had some intimation” that S. E. Clair and Angeline Clair Spicer had divested themselves of their interests.

An unrecorded deed is valid and must prevail over a subsequent deed if the subsequent grantee knew or had notice of its existence prior to his purchase, or had information sufficient to put him on inquiry that would have led to its discovery upon a search; such information is deemed equivalent to notice. See Hurley v. Hackney, 202 Ky. 452, 260 S.W. 16, and the case on this point cited therein.

We believe it is abundantly clear that appellants, when they purchased the two interests, had sufficient knowledge to place them on such inquiry as would have led upon investigation to the discovery of McIntosh’s prior deed conveying to him the same interests. The evidence is clear that appellant, Turner, knew S. E. Clair had negotiated to sell the two interests to McIntosh, although S. E. Clair claimed the transfer did not take place. Appellants maintain this was not enough information to prompt further probing upon their part. On the other hand, there were other facts and circumstances that should have alerted them. This pertinent statement appears in 92 C.J.S. Vendor and Purchaser § 326, pp. 233-234:

“So, where the vendor presents conveyances to himself which are prima facie valid, and assures the purchaser that his title is perfect, it has been held that the latter is under no duty to investigate further, in the absence of facts and circumstances suggesting the necessity of investigation; but where such circumstances exist, the purchaser is not justified in relying on the vendor’s statements.” (Emphasis ours.)

In this case, appellant, Turner, who is a lawyer, looked into the records in the Breathitt County court clerk’s office to ascertain the condition of the title to the real estate he and Treva Howell were interested in purchasing. He found the oil and gas lease whereby McIntosh had undertaken to lease the entire farm to Joe A. Saunier & Associates. Pie testified he did not remember whether he made any investigation in respect to McIntosh’s claim to all the land, after discovering the lease of record. (Emphasis ours.)

Seeing the lease on record was actual notice of its contents (92 C.J.S. Vendor and Purchaser § 324, p. 231, and § 326d (9), p. 238), which document included a mention by date of McIntosh’s unrecorded deed from S. E. Clair. “One having actual notice of a deed not in the chain of title is, of course, bound thereby.” 92 C.J.S. Vendor and Purchaser § 330, p. 244. Thus, if Turner had read the lease which he stated was of record, he would have found mention by date of S. E. Clair’s deed to McIntosh. Such notice would have bound him, so that he could not be deemed a bona fide or an innocent purchaser.

The evidence in the present case indicates appellant, Turner, had knowledge sufficient to charge him with notice of McIntosh’s prior title to the interests appellants claim. The trial court correctly held, on this evidence, that appellants were not bona fide or innocent purchasers for value without notice. We, therefore, need not discuss McIntosh’s possession of the land as a notice factor.

Appellants also urge reversal of the judgment because the trial court adjudged McIntosh to be the owner of five-sixths of the Willie Clair interest in the land, whereas the evidence showed he only had title to a one-seventh interest.

This is not a valid ground for reversal. The judgment merely needs to be corrected to conform to this fact. The error was one of mathematics (or genealogy) but not of law.

Appellants finally assert the court erred in assessing a certain item of costs against them.

This case involved multiple claims and multiple defendants. Some of these defendants were represented by a warning order attorney. The trial court gave the plaintiffs a judgment for their costs against the defendants, which included these appellants, and then awarded the warning order attorney a fee of $250 to be taxed as costs. Appellants filed a motion to set aside the order regarding the fee, insofar as they might be required to pay any portion of it, because there was never any issue of law or fact between either of them and any of the parties represented by the warning order attorney. There seems to be no dispute on this point. We conclude they are not liable for any amount of this cost item. The order should be set aside to the extent it affects them.

Wherefore, the judgment, subject to the corrections noted, is affirmed.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Jean SAVAGE, Appellant, v. CLAUSSNER HOSIERY COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.

      Andrew J. Palmer, Paducah, for appellant.
    Robert C. Manchester, Wheeler, Marshall & Manchester, Paducah, for appel-lees.
   WILLIAMS, Judge.

This is an appeal from a judgment of the McCracken Circuit Court which sustained an order of the Workmen’s Compensation Board. The Board found that the appellant Jean Savage contracted an occupational disease diagnosed as contact dermatitis, which arose out of and in the course of her employment. She was awarded temporary total disability benefits for a period beginning September 30, 1961, to and including March 24, 1962. Her refusal to accept another job in appellee’s plant was found to be unjustified.

The appellant contracted contact dermatitis in the course of her employment with appellee due to her allergic sensitivity to the dye used in the hosiery which she was required to handle. The medical evidence was that she was totally disabled to perform any work in which the dye was used, but she was not disabled to perform work which did not require her to come in contact with the dye.

If the evidence upon which an order is based is relevant and substantial, the finding of the Board will not be disturbed. Deby Coal Co. v. Roark, Ky., 360 S.W.2d 511 (1962); Martin v. Porcelain Metals Corp., Ky., 358 S.W.2d 485 (1962). Here the facts found by the Board are substantially authenticated by the testimony.

Appellant argues she would have been required to accept the job which was offered but for the fact that at that time she was temporarily totally disabled. Consequently, she says, she was under no obligation to accept it.

KRS 342.115 provides that, if an injured employee refuses to accept suitable employment, he shall not be entitled to compensation during the period of such refusal unless the refusal was justified. In E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102 (1960), we said a logical purpose of that statute would be to encourage injured workmen to accept employment rather than sit idle, contemplating their misfortune. We said further that statute is a kind of rehabilitation measure, and the provision therein for depriving an employee of compensation for refusal to work is nothing more than a form of coercive penalty. The effect of that opinion is that any person, regardless of whether he is totally, temporarily or partially disabled, is subject to the penalty provided in KRS 342.115 if he refuses suitable employment, unless his refusal is justified.

Appellant feels her refusal to accept an office job was justified because she would have had to handle index cards which had been in contact with the dyed stockings. Her doctor testified she could work any place on the employer’s premises except where she came in contact with the dye. There was no proof that a remote relationship between the index cards and the stockings could cause her harm. The Board felt her refusal to accept the office job was unjustified.

There being evidence of substance to sustain the finding of the Board, the judgment of the McCracken Circuit Court is affirmed.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Herbert C. HOWARD, Appellee (two cases).
    Court of Appeals of Kentucky.
    May 22, 1964.
    Robert F. Matthews, Atty. Gen., Frankfort, Edwin A. Schroering, Jr., Commonwealth’s Atty., Carl C. Ousley, Jr., 1st Ass’t Commonwealth’s Atty., Louisville, for appellant.
    Samuel J. Stallings, Louisville, for ap-pellee.
   MONTGOMERY, Judge.

Two indictments, Nos. 125461 and 125462, were returned by the Jefferson County Grand Jury against Herbert C. Howard. Each indictment contained nine counts. Each involved the same transactions. In No. 125461, violations of KRS 61.190, receiving a profit on public funds, were charged. In No. 125462, violations of KRS 432.350(2), taking a bribe, were charged. Motions to dismiss the indictments were sustained, from which orders appeals have been taken. The appeals have been considered together because of the common questions involved.

Two questions are presented: (1) Was the appellee as commissioner of the Middle-town Water District a public officer, and (2) were the sums of money received by him public funds?

At all times involved appellee was a commissioner of the Middletown Water District. The trial court held that appellee was not a public officer under KRS 61.-190 or an officer under KRS 432.350(2). Appellee relies on Board of Education of Graves County v. DeWeese, Ky., 343 S.W.2d 598. Specifically the following language is relied on.

“The difficulties experienced in defining ‘officers’ are attributable to the court’s determination to extend the term beyond the officers named in the constitution. The misgivings expressed in 1896 by Judge Guffy’s dissenting opinion in City of Louisville v. Wilson, supra [99 Ky. 598, 36 S.W. 944], proved to be well-founded. The term became a creature of the court, not of the constitution itself, resulting in an era of ambiguity and evasion. In the circumstances, a re-examination and reconsideration of the subject are well within the legitimate scope of the judicial process, and we have concluded that the meaning of the word ‘officers’ as it is used in Const. §§ 161, 235 and 246 should be restricted to the officers directly named and designated in the text of the constitution. To the extent that prior decisions of this court are inconsistent with this conception they shall no longer be authoritative.”
“From what we have said, it results that DeWeese is not an officer within the meaning of Const. §§ 161, 235 and 246, since the office of superintendent is a creature of statute (KRS 160.350) and is not named in the constitution.”

The DeWeese case dealt with whether the compensation of a county school superintendent was limited by the named constitutional sections, each of which deals with salary limitations on various officers named in the Constitution. Specifically it was held that a county school superintendent was not a constitutional officer whose compensation was limited by Kentucky Constitution, Sections 161, 235, and 246. It did not hold that a county school superintendent was not a public officer. It is not authority for holding that a water district commissioner is not a public officer.

The Middletown Water District was created as a water commission pursuant to Kentucky Revised Statutes, Chapter 74. KRS 74.520 says: “Every water commission * * * is declared to be a public body created and functioning in the interest and for the benefit of the public * * Appellee was appointed as a member of such commission by the county judge.

In Taylor v. Commonwealth, 305 Ky. 75,, 202 S.W.2d 992, the Court set forth five elements to be considered in determining whether a position in public employment constitutes a public office of a civil nature. They are as follows:

“(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (S) it must have some permanency and continuity, and not be only temporary or occasional.”

This definition has been reaffirmed. Nichols v. Marks, 308 Ky. 863, 215 S.W.Zd 1000; Love v. Duncan, Ky., 256 S.W.2d 498. In this respect these cases were not overruled by Board of Education of Graves County v. DeWeese for the reason previously indicated. A reading of Kentucky Revised Statutes, Chapter 74, entitled Water Districts, indicates that a water commissioner comes squarely within the five requirements listed as a public officer governed by KRS 61.190 and as an officer under KRS 432.350(2). See also 42 Am.Jur., Public Officers, Section 2, page 879; and Section 30, page 901.

The second ground for dismissal of the indictments was that public funds were not involved. In response to the orders sustaining appellee’s motions, bills of particulars were filed, setting forth in great detail the transactions in which appellee was involved.

While appellee was serving as water commissioner, various funds were deposited with the Middletown Water District by the developers of various subdivisions, which funds were disbursed by the water district in payment for construction of water distribution and sewage systems in the subdivisions. These funds were deposited in the Construction Fund Account of the Middletown Water District at the Bank of Middletown, Middletown. Disbursements from this account were made to E. A. Sanson or Sanson & Sanson by checks drawn on the account and signed by appellee and by R. J. Fanelli or Joe T. Moore, also water commissioners. All of these checks, including one drawn on the Operations and Maintenance Fund of the district, were deposited in the bank account of Sanson, with the exception of one check which was deposited to the credit of Trinity Industries, Inc., a corporation set up by Howard and Sanson.

Appellee received nine payments by check totaling $8,075.81 from the accounts of Sanson and Trinity. Two checks were signed by Sanson, one by his secretary, and six by appellee, who was also authorized to draw checks on these accounts. In Howard v. Sanson, Ky., 375 S.W.2d 828, an action in which Sanson sued to recover these payments, the finding of the court was “that there existed an arrangement among San-son, Howard, Moore and Fanelli for the payment of ‘kickbacks’ to the latter three as water commissioners and that the payments to the three men were for an illegal purpose.”

Appellee contends that: (1) such funds were held by the water district as an escrow agent; and (2) assuming they were public funds, they became private funds when Sanson obtained possession.

In the agreements executed by Sanson and the water district with the respective developers, it was contemplated that the public improvements so constructed would become the property of the water district. It was expressly so provided in one contract. Under each contract the water district was charged with receiving the bids, making inspections to see that the specifications were followed, and with making the payments to the contractor, Sanson, upon satisfactory completion. In the event that any money remained after payment of the contractor, it was to be returned to the developer.

From this appellee argues that the funds were for the sole benefit of the contributors, thereby making the water district merely a custodian. It is evident from the nature of the contracts that the funds were not held for the sole benefit of the contributors. The water district was very much interested. By such means public improvements were obtained by it which it became obligated to operate and maintain and from which it would collect revenues for such purposes. In fact, one check was drawn on the Operations and Maintenance Fund.

These funds were under the complete control and supervision of the water district. The district was responsible for the proper disbursement of the funds after inspection and for returns of any surplus funds to the developer. Appellee and the other water commissioners, as public officers, were charged with this responsibility. This responsibility and the fact that the district is the beneficiary of the contracts distinguishes it from the position of a bank as an escrow agent. While these funds did come from a private source, the developers, they became public funds when paid over to the water district and it, in turn, became responsible for them and their proper disbursement. 42 Am.Jur., Public Funds, Section 2, page 718.

In principle there is no difference m this case and the payment of bridge tolls to retire revenue bonds. Such funds and the surplus remaining after retirement of the bonds have been held to be public funds. Louisville Bridge Commissioner v. Louisville Trust Company, 258 Ky. 846, 81 S.W.2d 894; Dieruf v. Louisville & Jefferson County Board of Health, 304 Ky. 207, 200 S.W.2d 300. These funds were held by a public authority for a public purpose and to discharge an obligation made therefor. They are public funds.

There is no merit in the contention that they became private funds when San-son obtained possession thereof. Public funds do not lose their character as such when paid out for an illegal purpose. See Howard v. Sanson, Ky., 375 S.W.2d 828.

ICRS 61.190 and 432.350(2) have for their purpose the protection of public monies and as such should be construed with that worthy purpose in mind. The purpose of the statutes should not be allowed to be defeated by device or stratagem. The bills of particulars in these cases and the opinion in the civil litigation, Howard v. Sanson, already mentioned, brand the transactions for what they are: “kickbacks” for an illegal purpose. In that case Howard and Sanson were held to be in pari delicto. The trial court was in error in dismissing the two indictments.

Judgments reversed.


text:
    Exie WILSON, Appellant, v. Robert J. LEHMAN, M. D., et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.

      William P. Mull oy, Louisville, for appellant.
    Kent McElwain, McElwain, Dinning, Clarke & Winstead, John Ballantine, Ogden, Brown, Robertson & Marshall, Louisville, for appellee.
   STEWART, Judge.

This is an appeal from a judgment, on a directed verdict, from the Jefferson Circuit Court, dismissing the action of Exie Wilson, appellant herein, against Robert J. Lehman, M.D., and Arthur R. Kasey, M.D., appellees herein. Appellant’s complaint alleged she was given electric-shock treatments by appellees without her consent and, further, that the treatments were administered negligently, resulting in permanent disability to her.

The proof for appellant shows no negligence; but this phase of the case is not here on appeal, as she admits there is no proof in this respect. However, she does contend the judgment should he reversed and the case remanded for a trial by jury on the issues of lack of consent to treatment and of the damages that resulted therefrom.

Appellant had 11 shock treatments while hospitalized at the Baptist Hospital in Louisville between May 30 and June 24, 1960. These were administered by appel-lees, who are psychiatrists. She had for many years suffered from anemia, which required regular medical attention. She also suffered from moods of depression and from the conversion of her anxiety phobias into physical symptoms. As early as 195S, her physician, Dr. Pedigo, had recommended psychiatric help and had arranged for her to be interviewed by Dr. Kasey, but she refused to accept his advice. In April, 1960, following hospitalization for pernicious anemia accompanied by severe vomiting, Dr. Pedigo again suggested shock treatments as a means of relief. Appellant again refused and asked to go home to work out her own problems. Dr. Pedigo’s record for this patient at the hospital states for April 26, “If she does not do well she is willing to return for therapy by Dr. Kasey.”

Appellant re-entered the hospital May 30th. Dr. Kasey’s record states that she was “willing to take EST if allowed to remain on this floor (the 4th floor for medical patients) and have medicine to quiet anxiety prior to treatments. Agreeable to me.” On June 1st, Dr. Kasey noted that she “fears treatments but agrees to take them. Advised she should come to 1C (the psychiatric floor) as more satisfactory program can be carried out. Refused.” On June 10th, Dr. Kasey’s record said that appellant had had five treatments but needed another three or more, and he again repeated that she insisted on remaining on the medical floor, with the understanding that she would be transferred to the psychiatric floor if the post-shock confusion became great enough to necessitate the move. Dr. Kasey also testified appellant consented to his giving her treatments.

Dr. Lehman then took charge of the patent, as Dr. Kasey went on a vacation. This doctor moved her to the psychiatric floor, gave her six treatments and discharged her at the end of June.

Appellant testified she remembered nothing about her whole stay in the hospital; therefore, she could not say whether or not she consented to the treatments. Her husband claims he gave no consent for the treatments to be given and did not even know about them until appellant was transferred to the psychiatric floor. However, after he found out they were being administered, he did not remove appellant from the hospital or ask that they be discontinued. He also testified, as did Dr. Kasey, that appellant’s mental condition did not affect her ability to understand and to make intelligent decisions.

In Tabor v. Scobee, Ky., 254 S.W.2d 474, it was held that, in surgical cases, consent to such procedure must be obtained from ■either the patient, or, if the patient is under some disability, from a near relative capable of giving consent.

We have in evidence the doctor’s record, as well as his testimony, which indicates appellant consented to the treatments. We also have appellant’s statement as to her inability to recall what happened to her at the hospital, plus her submission to all the treatments. And we have appellant’s husband’s testimony that he did not consent, but that he did not remove her from the hospital or attempt to prevent subsequent treatments even after he found out such were being administered.

In 70 C.J.S. Physicians and Surgeons § 62, p. 991, it is stated: “In the absence of evidence showing that the patient was the victim of false representations, his consent to treatment or to an operation will be presumed from the fact that he voluntarily submitted to it.”

We are of the opinion the evidence establishes that appellant is presumed to have consented to the treatments because she voluntarily submitted to them. It follows that the trial court properly directed a verdict for appellees.

It is interesting to note that, while appellant alleged injury because of the treatments, her testimony shows her condition to be much improved since she was under the care of appellees. Her own evidence at the trial was to the effect that she has gained weight, increasing from 80 to 130 pounds; she feels better physically; and she is complimented by her friends on her youthful appearance.

She alleged injury in the form of loss of memory and inability to concentrate. Her own testimony reveals the loss of memory existed several years prior to the treatments. The testimony of Dr. Kasey was that there is usually a loss of memory for two weeks after shock treatments, after which time the memory usually returns except for recollection of the actual period of treatment. Except for this period, there is no proof that appellant’s claimed memory loss or her inability to concentrate have any relation to the shock treatments.

Wherefore, the judgment is affirmed.


author: MILLIKEN, Chief Justice.

text:
    Charles H. BREWSTER, Petitioner, v. Hon. Joseph J. BRADLEY, Judge Fayette Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    May 22, 1964.

      Harold F. Dees, Lexington, for appellant.
    Joseph J. Bradley, Lexington, for ap-pellee.
   MILLIKEN, Chief Justice.

The petitioner, Charles H. Brewster, held in the Lexington jail for extradition to Michigan, filed a habeas corpus action in the court presided over by the respondent, the Hon. Joseph J. Bradley, in which he sought to test or defeat the extradition order of the Governor. The respondent made no final ruling, but indicated that he would deny the petitioner the relief he sought. The petitioner then filed this original action in this Court seeking to prohibit the respondent from ordering him released to the Michigan authorities in compliance with the Governor’s extradition order.

It is apparent that the respondent withheld final ruling denying habeas corpus because he concluded that there was no statutory provision authorizing him to delay execution of the extradition order of the Governor pending petitioner’s appeal of a denial of habeas corpus to this Court. In other words, a denial of the writ of habeas corpus in the factual situation presented would be equivalent to releasing the petitioner to the State of Michigan in compliance with the order of extradition, and the appeal allowable in habeas corpus actions under KRS 419.130 would be inadequate for obtaining the relief sought, there being no statutory means of staying or superseding the trial court’s ruling denying habeas corpus as there is in habeas corpus actions where the judgment “orders the release of the person detained * * *.” KRS 419.-130(2).

This Court has the power to issue writs to maintain the status quo of cases pending before it on review, Const., Sec. 110, Crady v. Cranfill (1963), Ky., 371 S.W.2d 640, but there is no final appealable order now before us. We conclude that the trial court would be justified in staying the execution of the extradition order until the termination of the habeas corpus proceedings including any appeal from an order denying habeas corpus. This appears to be the best means available for preserving the petitioner’s right to have his appeal from a denial of habeas corpus mean anything in the present circumstances.

There being no judicial act before us so far to prohibit, the writ of prohibition is denied.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Russell BARKER et al., Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Walter Mobley, Flemingsburg, for appellant.
    B. G. Brammell, Morehead, for appellees.
   DAVIS, Commissioner.

In this highway condemnation suit, the appellee property owners were awarded judgment of $895.25 by the Rowan County Court. They appealed to the Rowan Circuit Court; the Department of Highways appealed also (we are told in its brief) but dismissed the appeal in circuit court. For our purposes, it is as if no appeal from county court to circuit court was taken by the Department of Highways.

Upon a jury trial in the circuit court, a judgment for appellees in the sum of $3,000 was entered, pursuant to the jury’s verdict. The Department of Highways has prosecuted this appeal as a matter of right. KRS 21.060 and 21.080. No motion for appeal was filed as specified by RCA 1.180.

By its failure to effectively appeal from the county court judgment, the Department admitted liability of $895.25, the amount of the unappealed judgment. If the circuit court jury had awarded a smaller sum, the property owners yet would have been entitled to judgment for $895.25. Commonwealth of Kentucky, Dept, of Highways v. C. S. Brent Seed Co., Ky., 376 S.W. 2d 310. The circuit court verdict and judgment awarded $3,000; the difference between the judgment of $3,000 in circuit court and the judgment of $895.25 in county court is $2,104.75.

It is true that the circuit court judgment recites that the amount in con-

troversy is more that $2,500. But this recital may not serve to establish as fact that which is fiction. KRS 21.070 provides that a statement in the judgment of the actual value in controversy is conclusive provided the judgment, when construed with the pleadings, does not certainly fix the value of the amount in controversy. Here the pleadings include the unappealed county court judgment for $895.25, which establishes, when construed with the circuit court judgment, that the sum in controversy on appeal is $2,104.75. Therefore, the recital in the judgment cannot control. See Roth v. Stauble, Ky., 313 S.W.2d 269 (overruled on another point in Creech v. Jackson, Ky., 375 S.W.2d 679).

In Fidelity-Phenix Fire Ins. Co. of New York v. Henry, 248 Ky. 818, 60 S.W.2d 111, we recognized the general rule that the amount in controversy on an appeal is the difference between the admitted liability and the amount of the judgment. To the same effect see Breeze v. Rosedale Park, Inc., Ky., 294 S.W.2d 553; 4 Am.Jur.2d, Appeal and Error, § 33, p. 560; 58 A.L.R. 2d 138, et seq.

In Greenwade v. Williams, Ky., 281 S.W.2d 707, we recognized the rule that “amount in controversy” as used in KRS 21.080 refers to the controversy in this court, not the circuit court. Unfortunately, in that opinion appears a statement which is obiter dictum, and is not universally correct. It may not always be said that the amount of the judgment against a defendant is the amount in controversy upon an appeal by the defendant — since the defendant may actually have conceded liability for most of the claim against him. To the extent that Greenwade v. Williams, supra, is in conflict with the views here expressed, it is overruled.

Since the amount in controversy is less than $2,500, it follows that this appeal must be dismissed for appellant’s failure to prosecute it as prescribed by RCA 1.180. Hopwood v. Crowe, Ky., 259 S.W.2d 40; Jordan v. Merten, 309 Ky. 105, 216 S.W.2d 906; Cole v. Frazier, Ky., 294 S.W.2d 82; Mann Chemical Corp. v. Louisville Water Co., Ky., 294 S.W.2d 91; Pennyrile Rural Electric Co-op. Corp. v. Lyon County, Ky., 318 S.W.2d 430.

The appeal is dismissed.


author: CULLEN, Commissioner.

text:
    DUO COUNTY TELEPHONE COOPERATIVE CORPORATION, Inc., Appellant, v. A. W. REESE and Wife, Orlia B. Reese, Appellees.
    Court of Appeals of Kentucky.
    May 22, 1964.

      John S. Cary, Burkesville, Jack B. Miller, Jamestown, for appellant.
    Leonard E. Wilson, Jamestown, for ap-pellees.
   CULLEN, Commissioner.

Duo County Telephone Cooperative Corporation entered into a contract with A. W. Reese pursuant to which Reese agreed to erect an office building to be leased by the co-op for a period of 10 years, with an option to purchase. The building was completed and the co-op entered into possession, paying the rental stipulated in the contract. After more than a year had elapsed the co-op notified Reese of its exercise of the option to purchase, and tendered to him the stipulated option price, Reese refused to convey the property, unless the co-op paid him $4,500 in addition to the stipulated option price, which additional sum he claimed was the cost of changes in and additions to the specifications according to which the building originally was to have been constructed. The co-op sued for specific performance. The trial court entered judgment requiring the co-op, as a condition of specific performance, to pay $2,800 in addition to the stipulated option price. The co-op has appealed.

The contract provided that Reese would construct the building “in accordance with plans and specifications prepared by Architect Anthony Carta of Russell Springs, Kentucky, dated November 3, 1959, as modified by agreement of the parties hereto, noted thereon, which by this reference are made a part hereof, as if fully copied and written herein.” Specifications prepared by Carta were attached to the contract but admittedly they were incomplete in that they did not cover plumbing, heating, electrical installations, and several other items. All parties agree that it was the understanding that the manager of the co-op and Reese would work out the details on the unspecified items. However, Reese maintains that it was understood at the beginning that the heating system would be hot air in the office quarters only.

As the work on the building progressed, Reese and the co-op manager had frequent conferences. A number of changes in the specifications were agreed on, with respect to such things as windows, roofing material, wall and ceiling finish, and garage roof supports. A few additions, particularly the installation of a night deposit vault, were requested by the manager. It was agreed that the heating system should be hot water, engineers having advised that a hot air system would not be satisfactory. Other things not covered by specifications, such as landscaping and the paving of the parking lot, were agreed upon. It appears that a number of the changes and additions were suggested by Reese and simply acquiesced in by the manager.

At no time during the construction of the building was there any discussion or even mention of the cost of any changes or additions. Reese frankly says that he had no idea that the co-op ever would exercise its option to purchase; that “I thought of it as a building that wc were trying to build, my own building, and I was anxious to have as good a building as I could have there.”

The contract provided that the co-op would lease the building for 10 years at a rental of $250 per month, paying $5,000 in advance to be credited on the rental due for the last 20 months of the term. It gave the co-op an option to purchase the building at any time during the lease period for $25,000, being given credit for the $5,000 advance payment and for $100 of each monthly rental payment made before exercise of the option.

When the building was completed the co-op made the advance payment of $5,000 and entered into possession. Reese made no claim at that time that there were “extras” in the construction of the building for which he should be paid, or because of which the option price should be raised. The co-op continued in possession and made the regular monthly rental payments of $250 for more than a year, and then gave Reese notice of its intention to exercise the purchase option. Then, for the first time, Reese raised his claim that the cost of the “extras” should be added to the option price.

In our view of the case, Reese cannot prevail on his claim for the “extras” unless the circumstances attending the doing of the work were such as to raise a clear implication that at the time the work was done Reese expected to be paid, and the co-op expected to pay, for the “extras”. Cheatham’s Ex’r v. Parr, 308 Ky. 183, 214 S.W.2d 95; Victor’s Ex’r v. Monson, Ky., 283 S.W.2d 175. Here, as concerns Reese’s expectation, he says himself that he gave no thought at all to the cost of the “extras” because he did not expect the co-op to exercise the purchase option. As concerns the co-op’s expectation, the situation was that Reese had agreed to erect a building, which the co-op could buy for $25,000, under specifications that everyone understood were incomplete. The co-op manager and Reese were to agree on the unspecified items. The co-op was entitled to assume that Reese had made allowance in the $25,000 price for those items. Unless Reese voiced objections to individual items, whether considered to be changes, supplying of omissions, or additions, the co-op was entitled to assume that they were within the range of allowance that Reese had made.

The clincher, we think, is that when the building was completed and turned over to the co-op, and Reese accepted the $5000 payment of advance rental, he asserted no claim of extra costs. This completely negatives any idea of his having expected to be paid more than the stipulated option price.

The judgment is reversed with directions to enter judgment granting specific performance of the purchase option on the terms stipulated in the contract.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. George Ben EDMONDSON, Appellant.
    No. 49591.
    Supreme Court of Missouri, Division No. 1.

    June 8, 1964.
    John B. Newberry, Springfield, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.
   HOUSER, Commissioner.

George Ben Edmondson, convicted of robbery in the first degree, § 560.120, V.A. M.S., and committed to the Department of Corrections for a period of 30 years, has appealed.

About 9:25 p. m. on December 23, 1961, after the J. C. Penney Store at Springfield closed its business for the day, two of its employees, Costello and Stockton, carried five money bags containing several hundred dollars of store receipts to the night depository of Union National Bank on the public square. The night depository, located at the front of the bank, is about 2 feet wide and 18 inches high. Night depositors are provided with a key to the chute in the night depository. After they approached the bank and as Costello was ready to insert the key they were accosted by a man in a trench coat, who had been observed standing in the doorway of an adjacent building. He ordered them to drop the money bags. A carbine rifle protruded about 18 inches from under his coat. Stockton and Costello, not desiring to “argue with the gun,” dropped the bags and at the man’s direction went around the corner, faced the side of the bank building and put their hands up against the wall. Directed to “stay there,” and told that “When this gun shoots it isn’t particular,” they stayed in this position until they no longer heard the footsteps of the fleeing man. Then they went around the corner, found that three money bags were missing, took the two money bags still lying on the ground, and deposited them. At the trial both Costello and .Stockton identified defendant as the man who robbed them.

On December 25 the Sheriff of Greene County wired the sheriff at Albuquerque, New Mexico information that George Ben Edmondson was wanted for investigation of armed robbery of the J. C. Penney Store. In response to this telegram, but without a warrant for arrest or a search warrant, the city police department of Albuquerque, having found that one Ed-mondson was registered at a local motel, called the room telephone about 9 p. m., talked to this defendant and informed him that the place was well covered, and asked him to come to the front door. Edmondson did so and identified himself. The officers placed him under arrest, and he was handcuffed. The officers told him they were looking for “some items” in connection with a report they had, and that they wanted to look in the motel room. Edmondson said “Go in; you are welcome to come in.” Inside the officers found two shaving kits containing $4,866.49, hidden behind a panel in the bathroom. Edmondson’s automobile was parked about 10 feet from the front door, on a public parking lot. The police searched the automobile at the motel, at the scene of the arrest, but it was “too cold” and a thorough search was not made. After Edmondson was taken into custody the officers took the automobile to the police station, where it was driven into the police department garage for a thorough search. It was in the custody of a detective. Still acting without a search warrant and at about 12:30 or 1 o’clock on the morning of December 26 the city police officers thoroughly searched the car, this time finding a small piece of paper on the floorboard under the driver’s seat, on which was typed “Not for Deposit J. C. Penney Co.” and a number 282 written in ink. This was later identified as an identification slip which had been placed on the money bags owned by J. C. Penney Company to identify the bags and the number 282 was the number of the key which J. C. Penney had to open the night depository box at the bank. This slip of paper, marked State’s Exhibit E, was introduced in evidence over defendant’s objection that the search and seizure under which it was obtained violated the defendant’s rights under the Federal Constitution and the constitutions of New Mexico and Missouri. The constitutional question was kept alive in defendant’s motion for new trial and briefs on appeal.

The Fourth Amendment to the Federal Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Under the search and seizure provisions of the federal and state constitutions a search warrant ordinarily must issue before a search and seizure may be made. There is an exception where the search and seizure is made as an incident to a lawful arrest.

Although appellant contends that the arrest was unlawful we need not determine the point, but will assume that the arrest was lawful, in view of the fact that we have determined that the search violated appellant’s constitutional rights.

Under the latest decision of the Supreme Court of the United States, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, decided on March 23, 1964, this search was not incident to the arrest. In Preston three men acting suspiciously had been seated in an automobile parked in a business district since 10 p. m. Shortly after 3 a. m. the next morning they were questioned by police officers. Having given unsatisfactory answers they were arrested for vagrancy and taken to police headquarters. An officer drove the automobile to the police station, from which it was towed to a garage. Soon after the men had been hooked at the police station police officers went to the garage, searched the car, found two loaded revolvers in the glove compartment, entered the trunk through the back seat of the car and there found other items which were used in a prosecution in federal district court of a charge of conspiracy to rob a federally insured bank. The court in Preston stated the rule that when a person is lawfully arrested the police have a right to make a contemporaneous search of the person of the accused, of things under the accused’s immediate control and, depending upon the circumstances, of the place where he is arrested. The court stated that the rule allowing contemporaneous searches is justified by the need to seize weapons, etc. which might be used to assault an officer or effect an escape, and the need to prevent destruction of evidence of the crime, but held that “these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U.S. [20] at 31, 46 S.Ct. [4] at 5, 70 L.Ed. 145. Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. * * * The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. At this point there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of a crime * *. Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v. United States, supra, 267 U.S. [132], at 153, 45 S.Ct. [280] at 285, 69 L.Ed. 543. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.”

Under Preston the search of appellant’s automobile was not incidental to his arrest. When the search was made appellant was under arrest and the automobile was in a police garage, in the custody and under the surveillance of a detective. There was no need to search the automobile for the purpose of seizing weapons, etc. which might be used to assault an officer or effect an escape. There was no need to search the automobile to prevent the destruction or spiriting away of evidence of the crime. There was no emergency. There was ample time for the officers to apply for a search warrant. The search violated the Fourth Amendment to the Federal Constitution and the slip of paper, Exhibit E, obtained as a result of an unconstitutional search, was inadmissible in evidence. Under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, all evidence obtained by searches and seizures in violation of the Fourth Amendment to the Federal Constitution is inadmissible in a criminal trial of a state charge in a state court. Because of the highly incriminating and obviously damaging nature and character of this inadmissible evidence, the judgment of conviction must be reversed.

Appellant’s failure to file a motion to suppress Exhibit E, as contemplated by Sup.Ct. Rule 33.03, V.A.M.R., see State v. O’Brien, Mo.Sup., 252 S.W.2d 357, 359, and State v. Lee, 361 Mo. 163, 233 S.W.2d 666, 669, is excused because the evidence shows that appellant did not know that the officers were in possession of Exhibit E. There is no evidence that, prior to the time during trial that the exhibit was produced in open court, appellant was aware of the grounds for such a motion. Appellant apparently had no reason to anticipate that this evidence would be introduced and is entitled to claim surprise.

Accordingly, the judgment of conviction is reversed and the cause is remanded for a new trial.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur, except HENLEY, J., not sitting.


author: EAGER, Chief Justice.

text:
    Rozanne HUNDLEY, Appellant, v. The MATTHEWS HINSMAN COMPANY, Employer, and American Insurance Company, Insurer, Respondents.
    No. 50267.
    Supreme Court of Missouri, In Banc.
    June 8, 1964.
    Claude L. Schenck, R. A. Kelpe, Kansas City, Walter Klamm, Kansas City, Kan., for appellant.
    David H. Clark, David W. Shinn, Kansas City (Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel), for respondents The Matthews Hinsman Co., Employer and American Insurance Co., Insurer.
   EAGER, Chief Justice.

This case came here by certification of the Kansas City Court of Appeals for a “reexamination of the applicable law,” although that court reversed the judgment of the Circuit Court. That opinion appears at 368 S.W.2d 528. The case involves a Workmen’s Compensation claim and the question here is solely one of limitations. The referee and the Industrial Commission denied compensation and the Circuit Court affirmed.

The facts appear in detail in the opinion of the Court of Appeals, but we digest here those necessary to an understanding of the issue. Rozanne Hundley, an employee of Matthews Hinsman Company, slipped on ice in the entranceway of her employer’s premises in Kansas City on the morning of January 23, 1959, and sustained a hard fall. She testified: “Well, I hurt my back. I mean, it hurt, because I fell so hard and so flat * * She also stated that the lower part of her back struck the concrete floor; all the evidence indicated that the injury was to the low back and that her pain was there. On the same morning she was hospitalized, X-rays were taken, and thereafter heat was applied to her low back area with deep heat therapy. In about one week she was released from the hospital, and a corset-type brace was prescribed by her physician; she wore this for about three months. She made occasional office visits to the doctor until the first part of March. She returned to part-time work about two weeks after the fall and later resumed her full duties. For a time she experienced some discomfort, but her condition was gradually “getting better.” She was paid $51.90 compensation (voluntary) and the compensation insurer also paid the doctor’s bill of $43, $188.75 to the hospital and $8.30 for the brace.

A Report of Injury, dated January 26, 1959, but not filed until October 21, 1960, recited the fall, stated that there was temporary disability, that there were no fractures, and that “evidently it must have been a sprain.”

In January, 1960, the claimant began to have occasional “catches” in her back which continued intermittently, and one foot began tingling; from March to June or July she went to two different chiropractors several times, chiefly because of a stiff neck, but they also “helped” her foot. In July, 1960, her right hip and upper leg began hurting; on July 25 she could hardly get out of bed because of her back; she had worked rather regularly up to that time, but she and her family had driven to South Dakota earlier in July on their vacation. Her family physician was called, she was hospitalized, and she was examined by an orthopedic surgeon. On July 28 one large herniated disc and one smaller one were removed, one being the disc between the last lumbar vertebrae and the sacrum and the other the disc between lumbar vertebrae four and five. That portion of the spine was fused with a bone graft. About October 3-4, she returned to work, and for a time she wore a new brace. Her operating surgeon gave the opinion that the injury to the discs resulted from the accident of January 23, 1959, but that thereafter the symptoms had subsided and there had been a period of remission. He rated the claimant as disabled “in the neighborhood of 30 per cent of the body as a whole” because of the fusion.

The claim for compensation was filed on October 5, 1960; the accident upon which it was based was the fall already described. Claimant stated that the parts injured were: “Back, Spine, Pelvis, legs and central nervous system” and added that there was permanent injury; she further stated that the fall caused “compensable injuries which were not discernable until on or about July 25, 1960.” The answer denied certain of the allegations and alleged that the claim was barred by § 287.430. After a hearing, the referee awarded no compensation and specifically found “ * * * from all the credible evidence that the claim for compensation filed by the employee was not filed within one year after the date of the injury, nor was said claim for compensation filed within one year after the furnishing of medical treatment or the payment therefor. I further find that the claim for compensation was not filed by said employee within one year after the date when it became reasonably discoverable and apparent that a compensable injury had been sustained by said employee.” Upon review, the Industrial Commission found that the award was supported by competent and substantial evidence, adopted the findings of fact, rulings and conclusions of law of the referee, and affirmed his award of no compensation. It also noted that it found to be controlling two of the cases which we shall discuss later (Crites and Conn). On appeal to the Circuit Court the final award was affirmed. As already indicated, the Court of Appeals reversed this judgment but certified the case here.

Section 287.430 reads, in so far as pertinent, as follows : “No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment.” The sole question at issue here is whether this claim is barred by limitations. The essential contentions of the claimant are: that two separate injuries resulted from the fall, — one, discoverable and minor, — the other, latent and not discoverable until at least some time after January, 1960; that the claim for the latent injury was filed within one year from the time it was reasonably discoverable and apparent; that the statute is not a bar, because that injury must be reasonably discoverable and identifiable, and that here not even the physician recognized the existence of a disc injury following her fall.

We shall look first at the Missouri cases which have laid down the guidelines in somewhat analogous situations. In Wheeler v. Missouri Pac. RR. Co., 328 Mo. 888, 42 S.W.2d 579, the claimant's eye had been cut by a foreign substance; he was treated by the employer’s doctor and the eye bandaged for about a month; when the bandage was removed his vision in that eye was “cloudy” and the condition worsened until at the end of ninety days the vision in the eye was practically gone. No claim was filed until two years after the accident. While there was some possible question as to the cause of the blindness, the case was decided on the question of limitations. On this subj ect the Court adopted and quoted from the opinion of the Kansas City Court of Appeals (from which the case had been certified). It was thus held: that the statute begins to run from the time when it appears that a compensable injury has been sustained, and that nothing in the act indicates that the running of the statute should be delayed until the most serious disability is ascertainable. Thus, the Court said in part, quoting, 42 S.W.2d loc. cit. 582: “ ‘We think there is no question but that in cases where latent injuries are involved the claim must be filed within six months from the time it becomes reasonably discoverable and apparent that a compensable injury has been sustained. * * * Our interpretation of the term “injury” as used in section 39 of the act, of course, would not have affected claimant’s right to compensation for the complete loss of the sight of his eye, had he filed his claim for a less disability or injury within six months after he received a compensable injury, for section 42 of the act empowers the commission to change an award. The purpose of the Legislature as disclosed by the act to our minds plainly shows that it was its intention to provide that the claim should be filed within six months after the receipt of a compensa-ble injury by the employee and, should it transpire thereafter that the injury received has developed into a more serious injury compensable in a different manner, the commission should change the award, if any, previously made. There is no question but that claimant received a compensable injury at the time of the occurrence of the accident in this case.’ ” The Court noted that the claimant had been forced to quit work, that he was entitled to and received medical aid, and that he was certainly entitled to compensation for temporary total disability.

In the following cases our Courts of Appeals have similarly announced the principle that the statutory period of limitations begins to run from the date when it becomes reasonably discoverable or apparent that a compensable injury has been sustained. Dees v. Mississippi River Fuel Corp., Mo. App., 192 S.W.2d 635; Crites v. Missouri Dry Dock & Repair Co., Mo.App , 348 S.W.2d 621 (where, however, a fact finding of the Commission in favor of the claimant was sustained); Conn v. Chestnut Street Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056; Young v. Management & Engineering Corp., Mo.App., 45 S.W.2d 927; Bridges v. Fruin-Colnon Const. Co., Mo.App., 52 S.W.2d 582; Cleveland v. Laclede Christy Clay Products Co., Mo.App., 129 S.W.2d 12. In three of these cases, Dees, Crites, Conn, it was also held that the determination of the date when it was reasonably discoverable that a compensable injury had been sustained was a question of fact. In Crites, the Court added that such a finding could not be set aside unless clearly contrary to the overwhelming weight of the evidence. In Dees, supra, the Court also said, at 192 S.W. 2d loc. cit. 642: “A compensable injury is one which disables the employee either totally or partially from the performance of his work, or requires medical or surgical treatment, and if that condition is coeval with the accident then the injury is coeval with the accident even though its exact nature may not be definitely fixed until a later time and in such case the one year limitation begins to run from the date of the accident.” See also: Conn, Bridges and Cleveland, supra. We think it entirely impractical to review here the facts of the various cases which we have thus cited.

In the opinion of the Court of Appeals it seems to be assumed that the original injury was merely a “sprained back.” By way of avoidance of the principle declared in the Missouri cases, the Court adopted one announced by Mr. Larson in his text (2 Larson, Workmen’s Compensation Law, § 78.44, pp. 274 — 275) to the effect that where there have been voluntary payments and the initial disability has ended, there is no “reasonable occasion” to file a claim until further disability develops; also, that the case thus becomes merely a “latent injury situation,” because the making of voluntary payments “cancels out” the initial disability. The discussion of Mr. Larson was concentrated in part upon a criticism of the case of Kobilkin v. Pillsbury (CA 9), 103 F.2d 667, aff. by an equally divided court, 309 U.S. 619, 60 S.Ct. 465, 84 L.Ed. 983. The author cites no authority for his specific views, except in so far as he cites the general latent injury cases, and in that section (78.41, p. 261) he refers to the fact that most courts have, under statutes running from the time of “injury” (such as ours), seen fit to suspend the running of the statute “until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained.” (Italics ours.) There is thus no substantial difference between the author’s stated “latent injury” rule and the rule of our cases. In criticizing Kobilkin, he apparently seeks to apply his rule to a situation such as ours, although this would appear to be excluded by his own statement in § 78.41. He accomplishes this feat by the mere statement that the voluntary payment "cancels out” the knowledge of the initial disability. It may be that there is logic in Mr. Larson’s argument but, if so, the remedy lies with the legislature, even on his own expressed interpretation of the theory of “latent injury,” which also coincides specifically with the theory of our own cases.

In Kobilkin v. Pillsbury, supra, the claimant had sustained a bad bruise when a bag of sugar fell on his shoulder. He was wholly disabled for three weeks and was paid voluntary compensation. After that, although he had some impairment, he worked for approximately a year and a half; then, severe pain developed and it was found that there had been a separation of the bones in his shoulder, requiring an operation. A claim filed thereafter was held to be out of time under the federal statute which required the filing of a claim “within one year after the injury” (or last voluntary payment). That claimant contended, as does ours, that the Court should recognize two separate injuries (one external and one internal) and that the more serious one was not discoverable until much later. The Court of Appeals there said, in part, at 103 F.2d, loe. cit. 669-670: “Decisions arising under statutory provisions analogous to those of the federal act generally hold that the date of injury, and not the subsequent date when incapacity develops, is the one from which the time limitation must be reckoned. * * * The terms ‘injury’ and ‘disability’, separately defined in the statute, are not synonymous. It has not been suggested that the injury from which appellant suffers is an occupational disease. Admittedly, it is an accidental injury arising in the course of employment. It was indicted at the time of the accident, not when its full extent was first noted at the later time. The trauma in fact resulted in an Immediate though temporary disability for which appellant was paid compensation. The circumstance that appellant again became disabled a year and a half later, and the more serious nature of the injury was then for the first time recognized, does not ■change the situation. The claim was not filed until more than a year after the occurrence of the injury and more than a year after the last payment of compensation. Under the plain terms of § 13(a) of the •statute the claim is barred. If we turn to § 22 and assume a change of condition we .again encounter the statutory bar.

“It was the manifest Congressional intent to deny compensation in all cases of disability arising from accidental injury unless claim is filed within the time limited. No provision is made for exceptional cases. We agree that the act is to be liberally construed, but neither the deputy commissioner nor the courts have the power to legislate; and nothing short of legislation would make relief possible in a case like this.” No case has been cited wherein the facts are so analogous to ours. The decision stands affirmed, notwithstanding the unusual manner of its affirmance, and it is highly persuasive here.

In the later case of Pillsbury v. United Engineering Co., 342 U.S. 197, 72 S.Ct. 223, 96 L.Ed. 225, few facts are stated (there being four claims), but it was held there where a claimant has sustained an accident, is aware of an injury, has received medical treatment and suffered pain, the statute begins to run, and that the word “injury” in the statute cannot be changed to “disability” or even to “compensable injury.” That opinion goes further than our Missouri cases, for they have interpreted the word “injury” in our statute to mean “com-pensable injury.” The three dissenting Judges in Pillsbury thought that it should be so interpreted. We mention this case primarily to show that the doctrine of Kobilkin, supra, has not been upset, as Mr. Larson apparently thought that it should (and would) be.

Respondents cite cases from several states as supposedly construing “injury” limitation statutes. Most of these statutes differ from ours and we see no point in discussing the individual cases. Suffice it to say that, generally, they appear to enforce rather strictly the provisions of limitation statutes in which the period of limitation runs from the date of injury.

Claimant’s counsel cite the cases of Kostron v. American Packing Co., 227 Mo.App. 34, 45 S.W.2d 871; Ford v. American Brake Shoe Co., Mo.App., 252 S.W.2d 649; Webb v. Consumers Co-Op. Ass’n, 171 Neb. 758, 107 N.W.2d 737; and Hayes v. Detroit Steel Casting Co., 328 Mich. 609, 44 N.W.2d 190. In Kostron, it appears that the claimant did not really discontinue his work following the accident, although beginning some days thereafter he was treated by a doctor four or five times for an apparent muscular strain in his back and side, but was permitted to continue working. Four months after the accident a sudden disability developed and it was found that there had been a tearing of certain muscles and a nerve. The Court simply held that under these facts no compensable injury was reasonably discoverable until the later date, so that the claim was filed in time. The case states no principle contrary to those Missouri cases which we have discussed.

In Ford, supra, the claim was for an occupational disease. The Court (and the Commission) found, on controverted evidence and as a fact, that the claim had been filed within the required time after the onset of the disease. The Court recognized the rules already stated, and merely held that the claim had been filed within one year from the time when it had become “reasonably discoverable and apparent” that the disease had produced a compensable disability, and that there was sufficient competent evidence to support a finding that the claim was not barred. The two cases just discussed, decided as they were on fact issues from wholly different evidence, could in no event be controlling here, nor were they controlling on the Court of Appeals.

The Nebraska case of Webb v. Consumers Co-Op. Ass’n, supra, is somewhat closer on the facts to the present case; it appears that the claimant sustained an injury by accident which was considered to be a “lumbo-sacral sprain with lacerations of ligaments”; that claimant worked a few days, after which he was treated by a physician for a “few weeks” during which time he was apparently not working. After returning to work he suffered three additional nonaccidental sprains, was hospitalized twice, and was, at least once, paid compensation. After the last such sprain a herniated disc was discovered, this being approximately twenty months after the original accident. From that operation a permanent partial disability resulted which, it was claimed, resulted from the original accident. On a defense of limitations, the sole ruling was: “The rule as to latent disease or disability is as follows: ‘An employee, sustaining an accidental injury arising out of and in the course of his employment, will not be denied compensation for failure to give notice of claim within six months or to commence his action within one year from the date of the accident, when it appears from the evidence that the injury was latent and did not result in com-pensable disability until after the expiration of the time for giving notice of claim and commencing action, provided notice is given and action commenced within the statutory period after the employee has knowledge that the accident has caused a compensable disability.’ ” We fail to see .how it could reasonably have been said that claimant there had suffered no compensable disability prior to the discovery of the disc injury, but that might be regarded as a question of fact. If the Court meant merely to say that the statute did not begin to run until a compensable injury was reasonably discoverable, then it goes no further than do our cases; if it meant more (and we are not at all sure), then we decline to follow the opinion.

The Michigan Statute on the subject, Michigan Stat.Ann. 1960, Ch. 150, § 17.165 is so wholly different from ours that there would be no point in discussing the Hayes case, supra.

In our case the claimant suffered one accidental injury to her lower back. Substantial and disabling effects were immediately apparent. She was hospitalized and treated, compensation and medical expenses were paid, and she wore a brace for approximately three months. The reference to an apparent “sprain” in the report of accident can make no difference in our conclusions, even if it be considered as a proper part of the record. It cannot well be denied that claimant had then suffered a discoverable, compensable injury within the meaning of the Missouri authorities, and the fact that the maximum disability was delayed is not controlling. We are not persuaded that our rule should be changed, on the authority of Mr. Larson or otherwise. If the legislature wishes to inject exceptions into our statutes (as, perhaps, by liberalizing the provisions concerning “a change in condition,” § 287.470), that is its prerogative. We certainly may not do so, and we are convinced that any change in our rule would introduce a very considerable element of confusion into the administration of our Workmen’s Compensation Law.

Moreover, the fixing of the date when the existence of a compensable injury is reasonably discoverable is, in large part at least, a question of fact. Several Missouri cases have so held. The referee and the Commission have found here, on substantial and competent evidence, that such date was more than one year prior to the filing of the claim; and it is also apparent that the Commission regarded, and found, that claimant’s injury was one single injury. We should not substitute our judgment for that of the Commission.

The judgment of the Circuit Court is affirmed. It is so ordered.

All concur.

HENLEY, J., not sitting.

      . All statutory references are to RSMo 1959 and V.A.M.S.


author: HOLMAN, Judge.

text:
    Philip F. STEIN, Trustee (Plaintiff), Appellant-Respondent, v. STATE TAX COMMISSION of Missouri et al. (Defendants), Appellants-Respondents.
    No. 50103.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.

      Lewis, Rice, Tucker, Allen & Chubb, James A. Singer, J. L. Pierson, John Tor-rey Berger, Jr., Clayton, for appellant.
    Norman C. Parker, St. Louis County Counselor, Edward Lander, Asst. County Counselor, Clayton, for respondents.
   HOLMAN, Judge.

Petitioner (hereinafter referred to as plaintiff) has appealed from a judgment of the circuit court affirming two decisions of the State Tax Commission upon review proceedings under Section 536.100 et seq. Involved is the assessment of real estate known as Manhassett Village (located in Richmond Heights, St. Louis County) for the years 1961 and 1962. (The two proceedings were consolidated in the circuit court.) The defendants are the State Tax Commission of Missouri, Howard L. Love, John A. Williams, J. Ralph Hutchison, Commissioners of the Missouri State Tax Commission; James W. Hopkins, Director of Revenue, St. Louis County, Missouri; Frank J. Antonio, Assessor, St. Louis County, Missouri ; James F. Bell, Collector of Revenue, St. Louis County, Missouri; and A. B. Riley, Collector, City of Richmond Heights, Missouri. Prior to the time the taxes for ■each year became delinquent the trial court,, upon motion of plaintiff, made an order permitting plaintiff to pay the undisputed portion of the tax to the county collector and tO' deposit the amount of the disputed part with the circuit clerk, and further ordered that plaintiff (by so doing) would “incur no interest or penalties on any amounts due or claimed to be due on said taxes.” Defendants have appealed from the part of the judgment based upon those orders.

We have appellate jurisdiction because the case involves the construction of the revenue laws of the State. Article V, § 3, Constitution of Missouri 1945, V.A.M.S.

The real estate in question is a tract of 19.63 acres with improvements thereon consisting of apartment buildings containing 354 apartments, a detached garage, and minor buildings. The property was acquired by plaintiff on August 31, 1960, through the purchase of all of the stock of the Longmoor Corporation for the sum of $2,000,001, the sole asset of said corporation being the real estate here involved. At the time of the 1961 hearing all of the apartments were rented, and only four were vacant at the time of the 1962 hearing. It appeared that the improvements on the property were insured for $2,300,000.

It is contended by plaintiff that his purchase of the property was an arm’s-length transaction and that the purchase price represented the true market value. The evidence, however, did not disclose that the real estate was placed on the open market for sale prior to the time it was purchased by plaintiff. One item in the contract of sale which would undoubtedly have an effect on the purchase price was the provision that the sale was made subject to a lease whereby Apartment “A” had been leased to a tenant under a lease expiring September 30, 1970, at a rental of $1 per year.

In 1961 the property was valued by the assessor for assessment purposes at $799,440. Plaintiff appealed to the County Board of Equalization which board affirmed the assessment. Plaintiff then appealed to the State Tax Commission (hereinafter sometimes referred to as “Commission”) and a hearing was held on October 4, 1961. At that hearing the plaintiff relied on the facts heretofore stated concerning the alleged arm’s-length purchase of the property.

The County produced as a witness Melville B. Martin, a deputy assessor, who testified that property in St. Louis County is assessed at one third of its true market value; that the property in question was appraised by him at a total of $2,398,532 and was therefore assessed at $799,440; that in August and September 1961, he had inspected both the exterior and the interior of the property and re-affirmed that appraisal ; that the appraisal method used was replacement cost, less depreciation, plus the value of the land, although “the valuation is checked by various other methods”; that in 1959 Roy Wenzlick Company appraised this property for the County and fixed its value at $2,796,000; that that figure had been accepted by the Assessor of St. Louis County but on May 2, 1961, was revised and reduced. At the conclusion of the hearing the Commission reduced the assessed valuation for 1961 to $716,660.

In 1962 the property was assessed by the assessor at the amount fixed by the Commission the previous year, to wit, $716,660. Plaintiff appealed to the County Board of Equalization, which board affirmed the assessment. He appealed from that ruling to the State Tax Commission and a hearing was held on September 19, 1962.

In addition to the evidence of the sale price of the property in 1960, plaintiff at that hearing produced as a witness John W. Gregory, a real estate broker and appraiser. It developed that Mr. Gregory had been employed by the Board of Equalization to appraise the property and had made a report to the board. He appraised the property by the use of one method at $1,760,000 and by the use of another method at $1,944,486. He finally expressed the opinion that it had a fair market value of $2,000,000. This witness explained, however, that before reporting to the board, he “did not have enough time to make a complete accurate appraisal of the property.”

The County produced as a witness William A. Thomas who testified that he was the supervisor in charge of residential and multiple-family appraisals for St. Louis County; that he had re-inspected this property on September 6, 1962, in preparation for the hearing. He also produced 16 cards which he said were original records of the county assessor’s office, made in the regular course of business and kept under his supervision and control, which cards were admitted in evidence without objection. These cards reflected the valuation placed upon this property by the Roy Wenzlick Company as described in connection with the 1961 hearing. He expressed the opinion that the true market value of this property was $2,149,980. When this witness was asked to recite what the records in evidence showed concerning the Roy Wenzlick valuation there was an objection that this testimony would be hearsay and he was permitted to testify thereto subject to that objection. He also testified that property for that year was assessed at one third of its true market value.

In regard to the 1962 assessment the Board found that the assessed valuation fixed by the assessor was not capricious, arbitrary, or intentionally discriminatory, and affirmed the assessed valuation in the amount of $716,660.

In our review of the orders of the State Tax Commission we agree that there "is no such thing in assessments as an absolute ‘true value,’ and an assessment is, at best, a mere estimate." Cupples Hesse Corp. v. State Tax Commission, Mo.Sup., 329 S.W.2d 696, 700. We also have in mind that we are not permitted to substitute our discretion for discretion legally vested in the Commission and should not set aside its findings unless such are "unsupported by competent and substantial evidence upon the whole record”; or are “for any other reason, unauthorized by law”; or arc “arbitrary, capricious or unreasonable”; or that they involve “an abuse of discretion.” Section 536.140, subsection 2, (3), (4), (6), (7).

Upon plaintiff’s appeal it is his contention that since there was an arm’s-length sale of the property in 1960, the sale price was, in effect, conclusive as to its true market value and therefore it should have been assessed at $666,667; that because of that evidence and the corroborating, testimony (as to 1962) of Mr. Gregory, and the absence of any substantial evidence justifying a valuation at a larger sum, the findings of the Commission were unlawful, unfair, arbitrary, and capricious and should be set aside.

We certainly do not agree that the sale price of this property is conclusive as to its true market value. It is common knowledge that a purchaser will sometimes obtain a bargain and thus pay less than the true value for property, and, on other occasions, will pay more than the true value to obtain certain property. As one witness expressed it, “you might get a bargain or you might get stung.” It is also obvious that in this case the fact that one apartment was leased for ten years at a rental of $1 per year would have an effect upon the purchase price.

We have concluded that the assessment valuation fixed by the Commission for each year was supported by substantial evidence and was therefore not arbitrary, capricious or unreasonable. In that connection it is interesting to note that the valuation fixed by the Commission only exceeded the valuation for which plaintiff contends by approximately $50,000, a differential of less than 8%.

In regard to the 1961 assessment there are two items of evidence which support the valuation fixed by the Commission. Mr. Martin, a qualified appraiser, fixed the market value of this property at $2,398,532. Also, there was testimony which disclosed that the Wenzlick Company had appraised the property at $2,796,000 in 1959. At the 1962 hearing Mr. Thomas, an experienced appraiser, expressed the opinion that the true market value of the property was $2,149,980. Records in evidence also disclosed the valuation of $2,796,000 that had been placed on the property in 1959 by the Wenzlick Company. We rule that the foregoing items of evidence constitute substantial . evidence supporting the valuation fixed by the Commission as to each year involved.

Plaintiff contends that we should not consider evidence concerning the appraisal of the Wenzlick Company in connection with the valuation for the year 1962 because such was objected to as hearsay. We do not agree. The evidence concerning that appraisal was contained in records of the assessor which were admitted after plaintiff’s counsel had stated he had no objection thereto. The objection now under consideration was interposed when the witness was asked to merely recite what was written on the records in evidence. We have considered the record evidence and hence the similar verbal testimony is of no consequence. This contention is ruled adversely to plaintiff.

We will next consider the appeal of defendants. As heretofore indicated, plaintiff, upon order of court, deposited with the circuit clerk checks payable to the county collector for the amount of the undisputed tax due for each year. The collector accepted those checks and made distribution of said money to the various public corporations entitled thereto. The disputed portion of the tax was deposited with the circuit clerk and the court ordered that plaintiff would not incur any interest or penalties on any amount of tax found to be due. Defendants contend that the court had no jurisdiction to make said orders.

“Ordinarily, unless directed by statute, a tax collector is under no duty to accept a part payment of a given tax or to accept an amount less than the entire tax due.” Annotation, 84 A.L.R. 774. Our case of State ex rel. Stone v. Kansas City, Ft. S. & M. Ry. Co., Mo.Sup., 178 S.W. 444, is in accord with the quoted rule. However, in this case, since the collector actually accepted and distributed a portion of the tax due, we rule that the collector may not collect any interest or penalties upon said amount.

In regard to the tax due on the disputed portion of the assessment, we hold that the court had no authority to order that plaintiff incur no liability for interest and penalties upon depositing the amount of said tax with the circuit clerk. Our reasons for that conclusion are clearly stated in the recent case of American Airlines, Inc. v. City of St. Louis, Mo.Sup., 368 S.W.2d 161, which was decided after the orders herein were made. Therein we stated: “It is the general rule that, in the absence of statutory authorization, the courts have no power to relieve delinquent taxpayers from penalties imposed by statute. The principle is not affected by the fact that the taxpayer will suffer hardship by reason of paying the penalties. Nor is the principle affected by the facts that the taxpayer is contesting in good faith the validity of the tax, and that the penalties have largely accumulated while the litigation is pending respecting the validity of the tax. 85 C.J.S. Taxation § 1031, p. 599; 96 A.L.R. 925-937; 147 A.L.R. 142-147. Missouri is in harmony with this principle. Norborne Land Drainage Dist. Co. of Carroll County v. Cherry Valley Tp. of Carroll County, 325 Mo. 1197, 31 S.W.2d 201.

“And no Missouri case has been cited in which it is held that a court in the exercise of its equitable jurisdiction or power may stay, waive or remit or refuse to enforce statutory exactions of delinquent tax penalties * * *. And if the courts have not the power to relieve delinquent taxpayers from statutory penalty exactions, upon final judgment, we are not able to see the sound basis for the contention that statutory penalties are in effect procedurally circumvented and the legislative exactions judicially vitiated by payment, pending litigation, of the amounts of contested taxes into the registry of the court pursuant to court order entered before or after the taxes were delinquent.” 368 S.W.2d 1. c. 167. There is no contention that there was any statutory authorization for the procedure followed in this case.

It is our view that plaintiff will be required to pay such statutory interest and penalties as may be due upon the unpaid portion of the taxes in question at the time such are paid by him to the collector. Since tibe orders under review were invalid, we are of the opinion that they should he set aside and that the amounts paid by plaintiff to the clerk, in accordance therewith, should he ordered refunded to him.

That part of the judgment which affirmed the assessments fixed by the State Tax Commission is hereby affirmed. The portion of the judgment and the orders from which defendants appealed are reversed and the cause is remanded for further proceedings in accordance with the views expressed in this opinion.

All concur except HENLEY, J., not sitting.

      . All statutory references are to RSMo 1959, V.A.M.S.