author: STONE, Presiding Judge.

text:
    Blanche Deputy LYNCH, Plaintiff-Respondent, v. WEBB CITY SCHOOL DISTRICT NO. 92, Defendant-Appellant.
    No. 8622.
    Springfield Court of Appeals. Missouri.
    Aug. 25, 1967.

      Myers, Webster & Perry, Webb City, for defendant-appellant.
    Herbert Van Fleet, Joplin, for plaintiff-respondent, Blanchard & Van Fleet, Joplin, of counsel.
   STONE, Presiding Judge.

On this appeal, defendant Webb City School District No. 92 in Jasper County, Missouri (hereinafter referred to as the district) seeks to be relieved of a summary judgment in the principal sum of $3,850 entered in favor of plaintiff Blanche Deputy Lynch on Count II of her petition for salary allegedly due her as a teacher under a contract for the 1961-62 school year. Defendant’s primary and principal contention is that the trial court erred in refusing to enter a summary judgment for it on Count II because “there was no contract between the parties.” On a previous appeal, we affirmed a summary judgment for plaintiff on Count I for the balance of her salary under a contract for the 1960-61 school year. Lynch v. Webb City School District No. 92, Mo.App., 373 S.W.2d 193.

Plaintiff, a widow then fifty-eight years of age with considerable teaching experience, was first employed by the district for the 1958-59 school year. The events, out of which this suit arose, occurred during the latter part of the 1960-61 school year, her third year in the Webb City system. As shown by the minutes of a meeting of the school board held on March 10, 1961, “the list of teachers as presented by Supt. Miner [was] reelected for the 1961-62 term” upon motion duly made, seconded and unanimously carried; and plaintiff’s name was included in such “list of teachers” made a part of the minutes of that meeting. The salary of each teacher was fixed by the graded salary schedule adopted by the board, which accorded recognition to the number of years the teacher had taught in the Webb City system and to his or her academic qualifications. Witness Madge T. James, secretary of the school board for sixteen years, agreed that it had been “their [the board’s] custom and in accord with their rules that in March of each year they elect teachers to be reemployed for the ensuing school year.”

At a special board meeting held on April 4, 1961, the minutes of the meeting of March 10 “were approved,” the ballots cast at the annual school election were canvassed, the two reelected members of the board took their oaths of office (there was no change in the membership), and the newly-constituted board organized by electing William H. Perry as president and William R. Chinn as vice-president. Section 165.320 [now § 162.301; L.1963 p. 222 § 3-30]. (Except as otherwise stated, all statutory references are to RSMo 1959, V.A.M.S., and all references to rules are to the Rules of Civil Procedure, V.A.M.R.)

On April 5, 1961, Superintendent Miner (so he stated in his answers to interrogatories) “caused to be delivered to plaintiff, a form for a contract for the 1961-62 school year together with a notice that she had 15 days thereafter in which to accept or reject said form contract,” both the “form contract” and “notice” being copied marginally in their entirety. (Except as otherwise stated, all emphasis herein is ours.) “About the same date” a form contract identical with the one delivered to plaintiff, except for the teacher’s name and salary, was delivered to each of the other teachers who had been reelected at the board meeting of March 10. The form contracts had been prepared by the secretary of the board subsequent to that meeting, but none of them had been signed by the president of the board or attested by the secretary prior to their distribution to the reelected teachers.

On April 7, 1961, there first “came to my attention” (so superintendent Miner stated) numerous alleged professional shortcomings on the part of plaintiff [see Lynch, supra, 373 S.W.2d at 196, 198(11)], which, however, were said to have been manifested throughout the 1960-61 school year. The superintendent also charged that plaintiff had been guilty of an “act [which] showed disloyalty to the superintendent and to the board of education,” in that at a teachers’ meeting on April 6, 1961, plaintiff had “repeated * * * in a manner which was critical” a question which he (the superintendent) had answered three weeks previously, when plaintiff had asked “if the board of education would use the foundation program monies for teachers’ salaries or * * * for some other means” and he had “fully explained * * * that the board of education would use the additional funds to strengthen teachers’ salaries.” Plaintiff’s testimony by deposition was that she simply asked the superintendent at the teachers’ meeting on April 6 “if that little note [the memorandum or “notice” copied marginally in note 1] meant that if the foundation program didn’t pass we were going to get a raise anyway,” but that he became “just really angry because I asked him this question” — “bawled me out terribly.”

Whatever the precipitating cause (here immaterial) may have been, the superintendent called plaintiff to his office on April 7 and asked her to resign. According to the superintendent, “plaintiff [then] said she would resign, that she would not work where she was not wanted.” Although conceding that she had commented to two other teachers that “I wouldn’t want to teach where they didn’t want me,” plaintiff insisted that she did not so state to the superintendent and “never did say I would resign,” and her testimony that, when the superintendent “handed me a piece of paper and pencil * * * and said ‘write your resignation out for next year,’ ” she had refused in this wise, “Mr. Miner, I am not going to sign this; I have done nothing I should resign for,” stands undenied. However, it would be as inutile as it would be tedious for us to pursue further the subject of plaintiff’s alleged resignation, since on the same state ,of facts we held on the previous appeal that there was no genuine good faith issue (a) as 'to whether plaintiff actually had tendered her resignation or (b) as to whether the board had accepted it [Lynch, supra, 373 S.W.2d at 197-198(9)] and on this appeal no reason why we properly should or could depart from our former holding is suggested. Cf. Midwestern Machinery Co. v. Parsons, Mo.App., 415 S.W.2d 545. For that matter, defendant does not now rely upon plaintiff’s alleged resignation but, as we have noted, contends that no contract for the 1961-62 school year was entered into.

Plaintiff signed the form contract “the next day” after it was delivered to her on April 5 but left it in her desk until the afternoon of April 11. A meeting of the school board was to be held that evening. About 4 P.M. on that date she went to the superintendent’s office intending to leave her signed contract there. However, the office was closed, so she immediately proceeded to the home of William R. Chinn, a member and vice-president of the board, and between 4:30 and 5 P.M. delivered to Mr. Chinn personally a sealed envelope which, as she then informed him, contained her signed contract. Mr. Chinn did not open the sealed envelope but took it to the board meeting that evening. Plaintiff was not present at the meeting. No statement by Mr. Chinn or any other member of the board, either by deposition, answers to interrogatories or affidavit [Rule 74.04], appears in the transcript, but the secretary of the board testified by deposition that the sealed envelope was delivered to her as “the meeting was just starting.” Without the envelope having been opened and (insofar as the record shows) without either statement or inquiry by Mr. Chinn or any other member of the board, the superintendent advised the board that plaintiff had returned her contract unsigned and recommended that “plaintiff be notified that her services [would be] terminated at the end of 1960-61 school year,” and the board accepted and approved that recommendation. In his answers to interrogatories, the superintendent stated that “after the board had acted * * * the contract was handed to me.” When the secretary of the board was asked “it was not until after the meeting of April 11th was held that the envelope * * * was opened, is that right,” her laconic, enigmatic response was . “it was opened.”

A special meeting of the board was held on April 13, 1961. At that meeting, the superintendent told the board that “in fact the plaintiff had returned the contract for the 1961-62 school year signed by her and that the signed contract had been in the possession of the secretary of the board, in an unopened envelope, at the meeting of April 11, 1961,” taking the position however that the instrument was not “a contract.” After presenting various “reasons why [plaintiff should] not be retained as a teacher,” namely, plaintiff’s alleged professional shortcomings and transgressions including the alleged “act of disloyalty” discussed above [see Lynch, supra, 373 S.W.2d at 196], the superintendent then “recommended [to] the board of education that [plaintiff] be notified that her contract be terminated immediately.” Whereupon, the board adopted a motion (with four members voting “yes,” “Chinn passing,” and the sixth member having left before the vote) that plaintiff “has violated the rules and regulations of the board of education and that her services and contract be terminated immediately,” and thereafter another motion (with five members voting “yes”) that plaintiff “be paid the balance of her contract for the 1960-61 term but that her services for the year be terminated immediately.” Plaintiff and her attorney were present at the meeting of April 13, and the board was then informed of plaintiff’s position that she had a contract for the 1961-62 school year.

On the following day, to wit, on April 14, 1961, two written notices signed by the president and secretary of the board were served on plaintiff, one notifying her “that your contract with the Webb City School District No. 92 is hereby immediately terminated under Section 163.100 revised statues (sic) of 1949 [now § 168.121; L.1963 p. 284 § 9-12] because of violations of the rules and regulations of the board of education,” and the other notifying her “under Section 163.090 [now § 168.111(3); L.1963 p. 283 § 9-11(3)] * * * that your employment with the Webb City School District will be terminated at the end of this school year.”

At a board meeting held on May 9, 1961, a motion was adopted “that the president and secretary sign all contracts returned signed by the teachers except the one returned by [plaintiff].” In her testimony by deposition, the long-time secretary could not recall whether the board had adopted a like motion in any prior year.

Defendant first contends that “there was no contract between the parties” because the form contract signed by plaintiff and returned by her “on its face shows that it is not a complete contract, ‘signed by the teacher and the president of the board, and attested by the clerk of the district.’ ” Section 163.080 [now § 168.101; L.1963 p. 283 § 9-10]. There is no question but that in Missouri a teacher’s contract must be in writing and authorized by the board. Sections 432.070 and 163.080 [now § 168.101]; Massie v. Cottonwood School Dist. No. 36 of Nodaway County, Mo.App., 70 S.W.2d 1108, 1109(2); Bailey v. Jamestown School Dist. No. 11, Moniteau County, Mo.App., 77 S.W.2d 1017, 1018(2). But the conformity with such statutory provisions which is exacted by the law is “a substantial compliance” [State ex inf. McKittrick v. Whittle, 333 Mo. 70S, 708, 63 S.W.2d 100, 101(3), 88 A.L.R. 1099], and a teacher’s contract “shall be construed under the general law of contracts.” Section 163.100 [now § 168.-121; L.1963 p. 284 § 9-12]; State ex rel. Foster v. Griffin, Mo.App., 246 S.W.2d 396, 398. Hence, it has been recognized in numerous cases that a teacher’s contract need not be “in any particular form” [Edwards v. School Dist. No. 73 of Christian County, 221 Mo.App. 47, 51, 297 S.W. 1001,1002] or in a single document bearing the signatures of the teacher and the president of the board and the attestation of the secretary of the board.

In the case at bar, plaintiff was one of the teachers shown by the minutes of the board meeting on March 10, 1961 (“approved” at the meeting on April 4), to have been “reelected for the 1961-62 term.” Thereafter, a form contract prepared by the secretary of the board which specified “the number of months the school [was] to be taught and the wages per month to be paid” [Section 163.080 (now § 168.101; L.1963 p. 283 § 9-10)] was tendered to plaintiff, as well as all other “reelected” teachers, with a notice that she had “fifteen days, or until April 20, in which to return [her] signed contract.” See Section 163.090 [now § 168.-111(5); L.1963 p.283 § 9-11(5)]. Within the stated period, to wit, on April 11, 1961, plaintiff signed the tendered contract and returned it to the board, thereby binding herself to the terms thereof. Section 163.-100 [now § 168.121; L.1963 p. 284 § 9-12] ; Baxter v. School Dist. of Miller, 217 Mo. App. 389, 395,266 S.W. 760, 761(3). Taken in their entirety, the record facts established substantial and sufficient compliance with the statutory requirements [Sections 432.-070, 163.080 (now § 168.101), 163.090 (now § 168.111), and 163.100 (now § 168.121)], although the signature of the board’s president and the attestation of its secretary were not placed on the instrument signed and returned by plaintiff. See cases cited . marginally in note 2.

Defendant would distinguish and set aside the cases cited to this point in plaintiff’s brief [State ex rel. Foster v. Griffin, Mo.App., 246 S.W.2d 396; Bailey v. Jamestown School Dist. No. 11, Moniteau County, Mo.App., 77 S.W.2d 1017] because, in the factual situations there considered, the teacher had filed a written application, in other words had offered to teach, before the school board employed her. However, other cases demonstrate the obvious truth that, in determining whether there has been substantial and sufficient compliance with the above-cited statutory requirements, it makes no difference which ■ party is cast in the role of offeror and which in the role of offeree. See Baxter v. School Dist. of Miller, supra, and Boswell v. Consolidated School Dist. No. 8 of Newton County, Mo.App., 10 S.W.2d 665, 666, certiorari dismissed 323 Mo. 43, 18 S.W.2d 61.

Additional arguments are offered in support of defendant’s contention that there was no contract. In the first place, defendant insisted in the trial court, and still asserts here albeit parenthetically, that, in “reelecting” plaintiff at the meeting on March 10 and in causing to be delivered to her on April 5 the form contract with the accompanying notice copied marginally in note 1, the board did not extend an offer to plaintiff to teach during the 1961-62 school term. “An offer is an act on the part of one person whereby he gives to another the legal power of creating the obligation called contract.” 1 Corbin on Contracts § 11, 1. c. 24, note 18. Section 163.090 [now § 168.111(5); L.1963 p. 283 § 9-11(5)] provided in part that “[a]ny teacher who is informed of reelection by written notice or tender of a contract shall within fifteen days thereafter present to the employing board a written acceptance or rejection of the employment tendered and failure of a teacher to present the acceptance within such time constitutes a rejection of the hoard’s offer.” It is crystal clear that the board did extend an offer to plaintiff.

The next line of defense is that, if the board extended an offer, no contract was created because “such offer was withdrawn prior to its acceptance” by plaintiff. Preliminary to their argument on this subpoint, defendant’s counsel remind us that “ '[t]o constitute a contract there must be an acceptance of the offer; until the offer is accepted both parties have not assented, or, in the figurative language frequently used by the courts, their minds have not met’ ” [Hunt v. Jeffries, 236 Mo.App. 476, 156 S.W.2d 23, 27(2); 17 Am.Jur.2d Contracts § 41, p. 378], and that “‘[t]o constitute acceptance of such an offer, there must be an expression of the intention, by word, sign, writing or act, communicated or delivered to the person making the offer or his agent. A mere private act of the person to whom the offer is made does not constitute acceptance.’ ” (Emphasis not ours) Hunt, supra, 236 Mo.App. at 484, 156 S.W.2d at 27(3). See 17 Am.Jur.2d Contracts § 44, p. 382. Defendant’s two-pronged argument then runs along the line (a) that, since the board’s rules and regulations included a provision that “communications between the board and teachers * * * should be through the superintendent,” delivery of plaintiff’s signed contract to Mr. Chinn, vice-president of the board, and by him to the board’s secretary, was “not sufficient,” and (b) that, since the sealed envelope containing plaintiff’s signed contract was neither handed by the secretary to the superintendent nor opened by anyone prior to the board’s approval of the superintendent’s recommendation that “plaintiff be notified that her services [would be] terminated at the end of 1960-61 school year,” defendant’s offer thus had been withdrawn prior to its acceptance.

Of prong (a). On its face, the quoted portion of the board’s rules that “communications between the board and teachers * * * should be through the superintendent” was not framed in the language of a prohibitory command entailing invalidating consequences for the disregard thereof, but was a directory provision not relating to the essence of the thing to be done and not resulting in prejudice to the substantial rights of interested persons for the neglect thereof. 12A Words and Phrases, “Directory,” p. 162; Black’s Law Dictionary (4th Ed.), “Directory,” p. 547. See State ex rel. Ellis v. Brown, 326 Mo. 627, 633, 33 S.W.2d 104, 107(2-6) ; State ex Inf. Taylor ex rel. Borgelt v. Pretended Consolidated School Dist. No. 3 of St. Charles County, 362 Mo. 249, 255-256, 240 S.W.2d 946, 950(5); Sandrowski v. Sand-rowski, 230 Mo.App. 1056, 1059, 93 S.W.2d 81, 83. As was well stated in School Dist. of Harrisburg v. Eureka Casualty Co., 313 Pa. 342, 169 A. 771, 772, where notice of surety’s cancellation of depository bond for the school district’s funds was addressed and mailed to the wrong official but “continued in its course” until it reached the secretary of the school board, “The respective identities of the official giver and official receiver of the notice are material; the identities of the respective intermediate transmitters are immaterial, for ordinarily transmission refers only to the ‘mechanics? of a communication.” The general rule is that “where the acceptance of an offer reaches the person who made the offer, it is immaterial by what mode the acceptance was sent.” 17 Am.Jur.2d Contracts § 43, 1. c. 381. See 1 Williston on Contracts (3rd Ed.) § 87, p. 279; 1 Restatement of Contracts § 68, p. 72. Certainly the efficacy of instant plaintiff’s return of her signed contract to the board was in no wise affected by reason of the fact that it did not pass through the hands of the superintendent before reaching the board.

Of prong (b). As we have noted, plaintiff’s signed contract in a sealed envelope was delivered to Mr. Chinn, vice-president of the board, between 4:30 and 5 P.M. on April 11, 1961, and by him delivered to the board’s secretary that evening as “the meeting was just starting.” Under authorities cited and quoted in defendant’s brief which declare that “[t]o constitute acceptance of such an offer, there must be an expression of the intention, by word, sign, writing or act, communicated or delivered to the person making the offer or his agent” [Hunt, supra, 236 Mo.App. at 484, 156 S.W.2d at 27(3); 17 Am.Jur.2d Contracts § 44, p. 382], there was an acceptance of the board’s offer prior to the superintendent’s representation to the board that plaintiff’s contract had been returned unsigned and prior to the board’s approval of his recommendation that “plaintiff be notified that her services [would be] terminated at the end of 1960-61 school year.” For it could not well be denied that plaintiff’s signed contract had been delivered to an agent of the board when it was delivered into the hands of the board’s vice-president and by him lodged with the board’s secretary.

True, the superintendent asserted that his representation that plaintiff’s contract had been returned unsigned was made in good faith because (so he said) “plaintiff had informed me that she had intended to resign” and that it was only “after the board had acted * * * the contract was handed to me.” But it stands undisputed that the vice-president of the board, who was present at the meeting on April 11 and occupied a fiduciary relationship to the school district [State ex rel. Brickey v. Nolte, 350 Mo. 842, 853, 169 S.W.2d 50, 55(2); State to Use of Consolidated School Dist. No. 42 of Scott County v. Powell, 359 Mo. 321, 324, 221 S.W.2d 508, 510(5)], had actual knowledge that the sealed envelope contained plaintiff’s signed contract, and it is plain that, regardless of whether or when the board’s secretary opened the sealed envelope, plaintiff’s signed contract actually was in her hands prior to the superintendent’s recommendation and the board’s approval thereof.

If, as has been held, a municipality may be charged in some situations with the knowledge of an individual member of the board of aldermen [Cropper v. City of Mexico, 62 Mo.App. 385, 387(2); Kingery v. City of Jefferson, Mo.App., 190 S.W. 976, 978], or of a policeman while on duty [Carrington v. City of St. Louis, 89 Mo. 208, 216, 1 S.W. 240, 242; State ex rel. Wander v. Kimmel, 256 Mo. 611, 633,165 S.W. 1067,1073; Willis v. City of St. Joseph, 184 Mo.App. 428, 431, 171 S.W. 27, 28(3)], or of a park foreman [Metz v. Kansas City, 229 Mo.App. 402, 416, 81 S.W.2d 462, 470], or of a street commissioner [Wagner v. Webb City, Mo.App., 168 S.W.2d 596, 598(3)], it would seem that, in the particular and peculiar circumstances of the case at bar, the school board should be held to have been charged with the actual knowledge of vice-president Chinn who, insofar as the record shows, sat mute as the superintendent erroneously, even if in good faith, represented to the board at the meeting on April 11 that plaintiff had returned her contract unsigned. For “every consideration of public policy seems to demand that each member of the board is the agent of the board as to any matter or knowledge coming to him affecting the public interest, and that any fact which does come to his attention which is vital to the public welfare must come to him officially.” Painter v. Napoleon Tp., Henry County, Ohio, D.C.Ohio, 190 F. 637, 639 ; 3 Merrill on Notice § 1325, 1. c. 316. See Gividen v. Trustees of Common School Dist. No. 54, 126 Ky. 194, 102 S.W. 1191, 1192(1).

Furthermore, numerous cases demonstrate that a party may be charged with knowledge notwithstanding such party’s nescience. Thus, a party is, absent fraud, accident or mistake, held to have had knowledge of a contract which he or she had an opportunity to read but did not by reason of “indolence, folly or careless indifference to the ordinary and accessible means of information.” Dickinson v. Bankers Life & Cas. Co., Mo.App., 283 S.W.2d 658, 663; Woolfolk v. Jack Kennedy Chevrolet Co., Mo.App., 296 S.W.2d 511, 515(6); Kap-Pel Fabrics, Inc. v. R. B. Jones & Sons, Inc., Mo.App., 402 S.W.2d 49, 57. See Miller v. Plains Insurance Co., Mo.App., 409 S.W.2d 770, 772(2) ; New York C. & Hudson River R. R. Co. v. Beaham, 242 U.S. 148, 151-152, 37 S.Ct. 43, 44, 61 L.Ed. 210, 216. And so it is that parties have been charged with knowledge of that which they would have known if they had opened a sealed envelope laid aside for the time being. Feldmeier v. Springfield Fire & Marine Ins. Co., 171 Wis. 377, 177 N.W. 583, 585(4); Aetna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S.W. 915, 916, 918(2). “It is sufficient that the letter or communication be delivered to the no-ticee, though it be not read.” 1 Merrill on Notice § 500,1. c. 472. “Of course it makes no difference that the letter was sealed and the recipient did not bother to open it.” Id., § 500, 1. c. 472, note 8. Even more specifically, a learned authority in the field of contracts writes that a letter from the offeror revoking an offer “should be held effective as soon as the offeree has had a reasonable opportunity to open and read the letter after it has been put into his hands or has been delivered at his business or home address.” 1 Corbin on Contracts § 39,1. c. 165. We entertain a similar opinion with respect to the effectiveness of a communication from the offeree accepting an offer. In fine, we conclude that the school board was charged with knowledge of plaintiff’s signed contract in the sealed envelope before the board revoked its offer to plaintiff (so it is argued) by approving the superintendent’s recommendation that “plaintiff be notified that her services [would be] terminated at the end of 1960-61 school year.”

For still another reason, a contract between plaintiff and defendant for the 1961-62 school year was created. To be effective, revocation of an offer must be communicated to the offeree before he or she has accepted. 17 Am.Jur.2d Contracts § 35, 1. c. 374; 1 Restatement of Contracts § 41, p. 49; 1 Corbin on Contracts § 39,1. c. 165; Anderson v. Stewart, 149 Neb. 660, 32 N.W.2d 140, 142(3), 3 A.L.R.2d 250. Cer-taintly the board and the superintendent had actual knowledge of plaintiff’s acceptance of the board’s offer before the attempted revocation of such offer was communicated to plaintiff. We have no doubt but that there was a valid contract between plaintiff and defendant for the 1961-62 school year and defendant’s primary and principal point to the contrary must be disallowed.

Defendant finally urges that, even if there was a valid contract, there was “a genuine issue as to whether plaintiff abandoned the contract” and that, therefore, the case should be remanded for trial. In response, plaintiff asserts (a) that, since defendant stated in its motion for summary judgment that “there is no genuine issue as to any material fact,” its present position to the contrary should not be countenanced but (b) that, if this point be considered on its merits, there was no genuine issue as to abandonment. In considering whether this point should be ruled on its merits, we have, in the absence of any Missouri authority, turned to federal decisions construing Rule 56 of the Federal Rules of Civil Procedure [28 U.S.C.A. p. 302], as particularly persuasive in construing and applying our Rule 74.04. Cooper v. Finke, Mo., 376 S.W.2d 225, 228(1); Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188, 192 (8). By definition, a summary judgment cannot be granted if there is a “genuine issue as to any material fact” [Rule 74.04 (c)], and a determination as to that does not depend upon what either or both of the parties may have said. Brawner v. Pearl Assurance Co., 9 Cir., 267 F.2d 45, 46(1); Bros., Incorporated v. W. E. Grace Mfg. Co., 5 Cir., 261 F.2d 428, 432-433. Thus, the fact that both parties move for summary judgment does not establish that there is no genuine issue of material fact and require that such judgment be granted for one side or the other. For a party may concede that there would be no such issue on his legal theory of the case and yet maintain that there would be such issue if his opponent’s theory were adopted. American Fidelity & Cas. Co. v. London & Edinburgh Ins. Co., 4 Cir., 354 F.2d 214, 216(1,2) ; Begnaud v. White, 6 Cir., 170 F.2d 323, 327(7); Walling v. Richmond Screw Anchor Co., 2 Cir., 154 F.2d 780, 784(1), certiorari denied 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640. Instant defendant’s motion for summary judgment did not foreclose the complaint presently under consideration.

However, we are convinced that this complaint is without substance. Plaintiff and her attorney informed the board, at its special meeting on April 13, of her position that she had a contract for the 1961-62 school year, but at that meeting her services were “terminated immediately.” On the morning of April 14, her offer to teach was rejected summarily on the ground that “her services had been terminated by the board.” That same day the board served a formal written notice on plaintiff “under Section 163.090 [now § 168.111(3) ; L.1963 p. 283 § 9-11(3)] * * * that your employment with the Webb City School District will be terminated at the end of this school year.” On April 21 plaintiff went to the superintendent’s office and told him that “I was ready to fulfill my contract.” This suit was instituted less than one month later, to wit, on May 16, 1961. In Count II of her petition, plaintiff prayed, inter alia, that the court “declare that she has a valid and subsisting contract with Webb City School District No. 92 for the 1961-62 school year; that she be permitted to teach in the public schools of. said district and that the individual defendants [members of the school board] be restrained from interfering with her rights under said contract * * From the outset, defendant school district (as well as the individual defendants who have dropped out of the litigation during the intervening years) vigorously contested the case and denied that “it offered plaintiff a contract of reemployment for the school year 1961-62 * * * that said alleged contract was returned to the board of education * * * that the alleged contract was ever accepted by the defendant * * * that there was or is any contract between plaintiff and defendant for the school year 1961-62.”

What we said on the previous appeal in denying a similar contention that there was a genuine issue as to plaintiff’s alleged abandonment of her contract is equally appropriate here: “Enough is enough. She was not required to disrupt the school by attempting to force her way physically into the classroom. If the defendants actually prevented the plaintiff from teaching, such was sufficient. Wood v. Consolidated School Dist. No. 13, Mo. App., 7 S.W.2d 1018(5). We think she was sufficiently ‘prevented’ in this case. See Boswell v. Consolidated School Dist. No. 8 of Newton County, Mo.App., 10 S.W.2d 665 [667-668(9)].” Lynch, supra, 373 S.W.2d at 198(10). Having in mind that each case must be ruled on its own facts, we have no hesitancy in concluding that the record before us presents no genuine issue as to plaintiff’s alleged abandonment of her contract.

The judgment for plaintiff is affirmed.

HOGAN and TITUS, JJ., concur.

      . TEACHER’S CONTRACT
      Form No. CD-60
      Sections 163.080 and 163.080 RSMo
      THIS AGREEMENT, made the_day of_, 19_, between Blanche Deputy, a legally qualified public school teacher, of the first part, and the School Board of the Webb City School District No. 92, County of Jasper, State of Missouri, of the second part.
      Witnesseth: That the said Blanche Deputy agrees to teach the public school of said District for the term of nine months, commencing on or about September 1, 1961, for the sum of 83850.00 dollars per year, to be paid in 12 equal monthly payments and that for services rendered and reports correctly made, according to law, said Board agrees to issue warrants upon the District Treasurer in favor of the said Blanche Deputy for the amount of wages due under this agreement.
      This Contract is subscribed to with a full understanding of Sections 163.010, 163.080, 163.090, 163.100, 163.110, 165.110, 165.230, 165.233, 166.030, 167.080, 168.110, 168.020, 168.030, 168.040, 168.050, 168.060, 168.090 RSMo. Done by order of the Board, this_day of_, 19 __ President
      _ Teacher
      Attest:
      Clerk or Secretary
      Memo to: TEACHERS
      Subject: CONTRACTS
      Enclosed are copies of your contract for next year. The amount of the contract is determined by the basic salary schedule. In case you earn advancement under our schedule, or in case the salary schedule is increased, the contract will be adjusted accordingly.
      You have fifteen days, or until April 20, in which to return your signed contract
      Lawrence Miner
      Superintendent of Schools

      . State ex rel. Foster v. Griffin, Mo.App., 246 S.W.2d 396, 398(5) ; Bailey v. Jamestown School Dist. No. 11, Moni-teau County, Mo.App., 77 S.W.2d 1017, 1018(2); Massie v. Cottonwood School Dist. No. 36 of Nodaway County, Mo.App., 70 S.W.2d 1108, 1109; Boswell v. Consolidated School Dist. No. 8 of Newton County, Mo.App., 10 S.W.2d 665, 666(3), certiorari dismissed 323 Mo. 43, 18 S.W.2d 61; Edwards v. School Dist. No. 73 of Christian County, 221 Mo.App. 47, 51, 297 S.W. 1001, 1002; Baxter v. School Dist. of Miller, 217 Mo.App. 389, 266 S.W. 760; School Dist. No. 1 in Audrain County v. Edmonston, 50 Mo.App. 65, 68. See Burger v. City of Springfield, Mo., 323 S.W.2d 777(7); First Nat. Bank of Stoutland v. Stout-land School Dist. R2, Mo., 319 S.W.2d 570, 573 (4); Blades v. Hawkins, 133 Mo. . App. 328, 112 S.W. 979(1).


source: Caselaw Access Project

author: WILLIAMS, Chief Justice.

license: Public Domain

text:
    William Jacob BRUCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 30, 1967.
    Rehearing Denied Oct. 13, 1967.
    William C. Morton, Gordon, Gordon & Logan, Carroll Morrow, Moore, Morrow & Frymire, Madisonville, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Chief Justice.

Appellant William Jacobs Bruce was indicted for the crime of rape. He was tried and found guilty by a jury in the Hopkins Circuit Court. He appeals from the judgment of that court sentencing him to 12 years in the penitentiary.

His only ground for reversal is that certain evidence introduced at his trial was obtained as a result of an illegal search. The evidence concerned a purse which belonged to the prosecuting witness. The purse was found on appellant’s premises by police officers. They were making a search under authority of a search warrant issued pursuant to an affidavit, the relevant portion of which follows:

“Information obtained from David Dubock of Arlington, Kentucky and Wendell Tomes of Paducah, Kentucky furnished information that items in the premises described below such as cosmetics, pipes, watches, jewelry are stolen items and these items have been seen by the affiant. * * *”

The objection is that the affidavit failed to state how and when the information was obtained by the informants, or when and how the affiant observed the stolen articles. In Williams v. Commonwealth, Ky., 355 S.W.2d 302 (1962), we said it is “well settled that an affidavit based on information or belief is defective unless it discloses when the observation was made by the informant.” We held that a search warrant based on such an affidavit fails and the evidence obtained through it is inadmissible.

The affidavit here is clearly defective, and the warrant issued in reliance thereon is likewise defective. When an ultimate fact is alleged, even on the basis of personal observation, the affidavit must state when the fact was observed. Henson v. Commonwealth, Ky., 347 S.W.2d 546. It follows that the evidence concerning the purse found during the unlawful search should not have been admitted. To do so was error which was prejudicial to the rights of appellant.

It is no answer that the prosecuting witness identified appellant or that he attempted to explain away his possession of the purse. Except for the introduction of the purse, the only evidence linking appellant to this crime was that of the prosecuting witness. His defense was an alibi (several people said they saw him 12 miles away at the time the offense took place). The introduction of the purse was evidence corroborating the witness that the accused was the offender, and, consequently, was quite damaging.

As to appellant’s attempt to explain how he came into possession of the purse it cannot be said that in so doing he waived the erroneous introduction of the evidence. Once the evidence was admitted he was forced to try to explain it away, or to pretend it was not there. What he did was an attempt to rebut the original evidence and as such did not constitute a waiver. Johnson v. Commonwealth, 217 Ky. 565, 290 S.W. 325 (1927).

The judgment is reversed.

MILLIKEN, PALMORE and STEIN-FELD, JJ., concur.


author: HILL, Judge. PALMORE, Judge

text:
    Bernes B. STONE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    Rehearing Denied Oct. 13, 1967.

      William E. Rummage, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant was convicted and sentenced to four years in prison under an indictment charging him with maliciously burning a store building, denounced by KRS 433.020.

We go directly into the numerous questions relied on by appellant for reversal after stating the following salient facts about which there is no dispute. The fire occurred January 18, 1964, in a two-story building, which appellant did not own but the first floor of which was rented and in use by appellant in connection with a retail jewelry business. Appellant left the store about 5:00 p. m., and the fire was discovered approximately thirty minutes later. He was in debt; his business was not thriving ; and he had obtained a large insurance policy on his merchandise two months previous to the fire.

First it is insisted by appellant that the court should have instructed the jury on the question of whether appellant consented to the search of the ruined premises. John A. Kennedy, a private investigator for Allstate Insurance Company, appellant’s insurer, testified appellant consented to his inspection of the premises after the fire. This is denied by appellant. It is argued that the rule in Mattingly v. Commonwealth, 202 Ky. 343, 259 S.W. 710, required the submission of this question to the jury. We find no fault with the rule in Mattingly; but for reasons to be later discussed herein in connection with the nice constitutional question of evidence obtained by a private citizen as distinguished from evidence obtained by an officer of the law, it will not be necessary to apply the rule in Mattingly.

Assigned as error was the failure of the trial court to allow Randall Aull to testify for appellant. This witness admitted he was in the courtroom at the time two of his fellow firemen testified on behalf of the Commonwealth. An order authorized by CR 43.09 was duly entered providing for the exclusion of the witnesses from the courtroom. This section of the Rules, as well as its predecessor 601 of the previous Code, has been uniformly construed to give the trial judge a broad discretion in the matter of permitting or refusing to permit a witness to testify who has violated the rule. See Murphy v. Phelps, 241 Ky. 339, 43 S.W.2d 1010, and 88 C.J. S. Trial § 65.

The avowal of the witness Aull indicated he was the only one of the three firemen who reached the second floor, where the Commonwealth’s witnesses inferred “accelerant” fumes must have emanated from. Aull’s avowal stated he did not smell fumes from the second floor window, but he said he “didn’t stay too long because the smoke came bellowing out then,” and “Captain Freeman hollered and told” him “to come off the ladder.” This testimony had a slight tendency to contradict the negative testimony of his two fellow firemen, who said they did not notice fumes. But the nature of Aull’s testimony was not so vital or convincing as to require the trial court to allow it. Certainly, we cannot say the trial judge abused his discretion. In any event, the order for exclusion was violated, and it was within the sound discretion of the trial court to allow or not permit the witness to testify.

Next appellant contends the court erred in allowing the introduction by the Commonwealth of certain photographs and “charred wood.” Appellant moved for the production by the Commonwealth of all photographs and articles to be used on the trial pursuant to the provisions of RCr 7.24. The Commonwealth did produce a number of articles and some photographs, but the “charred wood” was at that time en route to or from Chicago, Illinois, for testing and was not delivered to attorney for appellant. In fact, these items were in the possession of Allstate Insurance Company and its agent. Appellant, himself, authorized Allstate to take possession of the “charred wood,” although he denied this at the trial. In any event, appellant had the right under RCr 7.24 for the production of these articles. Furthermore, it cannot be said that the articles desired by appellant “were in possession of” the Commonwealth at the time the motion was made under RCr 7.24.

Complaint is made of the ruling of the trial court, after the jury was empanelled and sworn, allowing the Commonwealth to amend the indictment. The original indictment charged appellant with “setting fire to and burning the storehouse known as Stone Jewelers” and listed KRS 433.-020. The amendment added the following charge: That he “aided, counselled or procured the burning of a storehouse,” and again cited the statute.

An indictment may be amended under RCr 6.16 “any time before verdict” providing the “substantial rights of the defendant are not prejudiced.” Instruction number one followed the language of the statute, and the verdict found appellant guilty under instruction one. In our view, the substantial rights of the defendant were not prejudiced by the amendment. See Brown v. Commonwealth, Ky., 378 S.W.2d 608 (1964) and Hines v. Commonwealth, Ky., 390 S.W.2d 152 (1965).

This brings us to the fifth error assigned by appellant, in which he contends all the testimony of the witness John A. Kennedy should not have been admitted for the reason Kennedy searched his premises without his consent and without a search warrant.

The Commonwealth counters to this argument by saying, first, Kennedy got the evidence by “consent” of appellant; second, by taking the untenable position that appellant had no possession of the premises after the fire, and that the possession reverted to appellant’s landlord; and third, that Kennedy, being a representative of Allstate, was a “private individual,” and evidence obtained by him as a private citizen does not violate section ten of the Constitution of Kentucky or the fourth amendment to the Constitution of the United States.

The first part of the Commonwealth’s counter argument will be answered in the discussion of the third argument. The second counter argument, relative to possession of the wrecked and charred building, is without merit. It is sufficient to say that appellant had possession at least for a reasonable time to enable him to recover any property not destroyed by fire. He may have had possession for as long as the rent was paid or until a new building could be constructed.

The third counter argument is one that may have merit. But in this jurisdiction, and in many others, evidence obtained by private individuals by search or observation has not been excluded under section ten of our Constitution and the fourth amendment to the Constitution of the United States. See Chapman v. Commonwealth, 206 Ky. 439, 267 S.W. 181, from which we quote:

“It has often been written that that section (10) was directed at the sovereignty, acting through its public officers; and the evidence thus disclosed to public officers in an illegal search or seizure has been declared incompetent against the defendant to the end that the constitutional provision may be made more effectual than if he was left alone to his remedy in trespass against the officer. It has never been held, however, to embrace or be applicable to a private individual who, through a process of spying or other form of trespass, discloses evidence against another. Manifestly as against such private individual the aggrieved party is left to his remedy in trespass.”

The rule above discussed is treated in 50 A.L.R.2d, p. 571, in this manner:

“The exclusionary rule stated in section 7(a), supra, under which evidence obtained by an unlawful search and seizure is not admissible against an accused, has been held not to apply where the unlawful search was made by a private individual acting on his own initiative.”

Cases cited under the foregoing section of A.L.R. include those in California, Mississippi, Missouri, Oregon, the United States in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), and our own state of Kentucky.

Also in 16 Am.Jur.2d, Constitutional Law, section 557, p. 960, it is written:

“It is the established general rule that the provisions of the due process clause in a state constitution and in the Federal Constitution are inhibitions upon the power of government and its agencies, not upon freedom of action of private persons.”

This jurisdiction has continued to follow Chapman, supra, in Gilliam v. Commonwealth, 263 Ky. 342, 92 S.W.2d 346, and in many other cases. See also the recent case of United States v. Goldberg, 3 Cir., 330 F.2d 30 (1964), certiorari denied July 1, 1964. We can discern nothing at present or on the horizon to justify a departure from the sound constitutional law announced in Chapman, supra, and later cases. It is without reluctance that we follow that rule.

Appellant contends he is entitled to a reversal for failure of the trial court to sustain his motion for a new trial on the ground the jury reached its verdict by lot. Appellant filed affidavits of three of the jurors; the Commonwealth filed affidavits of eleven of the jurors. Appellant’s affidavits did not fix the time at which each juror submitted on separate slips of paper his preference for the length of term of the sentence. The affidavits for the Commonwealth showed the balloting did not take place until all twelve jurors had voted unanimously that appellant was guilty as charged. This did not amount to a quotient verdict. See Cox v. Commonwealth, 255 Ky. 391, 74 S.W.2d 346, and Graham v. Commonwealth, 310 Ky. 773, 221 S.W.2d 677, wherein it is said:

“This method in arriving at verdicts has been repeatedly condemned by us. However, where it appears, as in the instant case, that the jury unanimously agreed upon the guilt of the accused and then arrived at a quotient verdict which was subsequently and independently adopted by all members of the jury, we have written that the verdict was not one by lot within the meaning of § 271 (3) of the Criminal Code of Practice.”

The next question raised by appellant involves the sufficiency of the evidence to convict. He maintains he was entitled to a directed verdict. Here it is necessary to state facts established by the evidence. Appellant’s own brief summarizes the evidence substantially. We quote therefrom:

“(1) That there was a fire at about 5:30 on January 18, 1964, which subsequently consumed the building and contents of Stone Jewelry Store.
“(2) That the appellant had the opportunity to set the fire.
“(3) That he could have been there when the fire started.
“(4) That there was an accelerant used on the fire.
“(5) That the appellant was on a cash basis with suppliers.
“(6) That he had recently taken out a substantial insurance policy with Allstate Insurance Company covering the contents and improvements.
“(7) That the appellant owed a substantial sum of money, although he had a good many assets, and had been sued on a number of accounts.
“(8) That if the appellant did not set the fire, he could have known who did set it.”

To this list we may add that the evidence for the Commonwealth described the difference between the burning process on wood where an accelerant was present and that resulting from natural burning and the difference in the coloration of charred wood by burning due to accelerant and that resulting from burning without it. A witness with vast experience, covering a period of more than twenty years, from the holocaust at Hiroshima to the present time, gave convincing evidence that the building was set afire at three separate places. He explained that some of the fire “burned down,” indicating that the flames followed a liquid accelerant as it ran through the floor cracks and down the walls, and that natural fire always burns upward from the starting point.

It is concluded the trial court properly submitted the issue to the jury. Hines v. Commonwealth, Ky., 390 S.W.2d 152 (1965). Baker v. Commonwealth, Ky., 307 S.W.2d 773 (1957).

Appellant’s motion for change of venue was overruled. He contends this was error. KRS 452.220 outlines the procedure for obtaining a change of venue. It states:

“(2) If the application is made by the defendant, it shall be made by petition in writing, verified by the defendant, and by the filing of the affidavits of at least two other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true.”

The petition was not verified, nor was it sufficient. It is copied herewith.

"Comes the defendants and each of them and move the court for the changing of the venue for the prosecution and trial of these actions and each of them. In support of this motion there is attached hereto the affidavits of J. J. Taylor and Parvin Hidenrite.”
(Signed by attorney for appellant.)

The affidavits referred to in the petition stated only conclusions; they referred to unfavorable news media but did not state any facts in connection therewith. The petition, including the affidavits, was utterly insufficient to require or justify a change of venue. See Brunner v. Commonwealth, Ky., 395 S.W.2d 382 (1965), White v. Commonwealth, Ky., 394 S.W.2d 770 (1965). Appellant contends that the affidavits filed by the Commonwealth were too late; that they were filed after the court ruled on his petition for change of venue. It is not clear whether the court undertook to allow the Commonwealth to file counter affidavits after its ruling and considered what the Commonwealth announced it would include in the affidavits, but it is unnecessary to decide this question since we have concluded the petition was not sufficient.

Objection is made to the ruling of the trial court in allowing the witnesses Gilling-ham and Phillips, state arson detectives, to testify after it was shown they did not visit the scene of the fire for thirty days after the fire. It is urged that KRS 227.-270 (authorizing investigation of fires) is unconstitutional and that the testimony of these two witnesses is too remote due to a change in condition of the premises.

The remoteness of the inspection goes to- the credibility and weight to be given to their evidence.

The investigation of fires is clearly a proper exercise of the police powers of the State. We have no difficulty in concluding that KRS 227.270 is constitutional and does not violate either the fourth, fifth, or fourteenth amendments of the Federal Constitution or section ten of the Constitution of Kentucky. See City of Louisville v. Thompson, Ky., 339 S.W.2d 869, and Moore v. Ward, Ky., 377 S.W.2d 881.

The final question raised by appellant concerns the ruling of the trial court in excusing the. prospective juror Alexander who stated on voir dire he had been a close personal friend of appellant for thirty-five years, although he thought he could give both sides a fair and impartial trial. A trial judge is given broad discretion by RCr 9.36 to excuse a prospective juror for cause. See Carson v. Commonwealth, Ky., 382 S.W.2d 85. It is concluded the trial court was amply justified in excusing this juror.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, OSBORNE, and STEINFELD, JJ., concur.

PALMORE, J., dissents.

PALMORE, Judge

(dissenting).

I dissent from that portion of the opinion which holds that the constitutional protection against unreasonable search and seizure is of no avail if the search was conducted by a private citizen not acting at the instance of an officer or agency of the state. When the state condones an illegal search by using its fruits in a criminal prosecution it becomes an accessory, and bears the ultimate responsibility for depriving the offended person of that which Const. § 10 and the Due Process Clause of the 14th Amendment to the Constitution of the United States have guaranteed him. If only in this small way, I am proud to join the company of Brandéis and Holmes. Cf. dissenting opinion of Mr. Justice Bran-déis in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1948, 13 A.L.R. 1159 (1921).


author: WILLIAMS, Chief Justice. PALMORE, Judge.

text:
    Marvin BUTTS et al., Appellants, v. John R. WRIGHT et al., Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Rehearing Denied Oct. 13, 1967.
    Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellants.
    Frank N. King, Jr., Dorsey & Sullivan, Henderson, for appellees.
   WILLIAMS, Chief Justice.

The appellant, Marvin Butts, was injured when he was knocked from a tractor which was struck from the rear by the automobile of appellee John R. Wright. A jury in the Henderson Circuit Court found both parties negligent and allowed no recovery. Butts has appealed.

The accident happened at about 8:00 P. M., C. D. T., on May 11, 1964. Wright was traveling west in his 1963 Oldsmobile on U. S. Highway 60 near Henderson. Butts was on a tractor towing a disk harrow attachment and headed in the same direction. Butts had stopped the tractor waiting for oncoming traffic to clear before making a left-hand turn. Wright’s car struck the disk harrow attachment and veered off to the right side of the road.

Butts’ first argument is that he was entitled to a directed verdict on the issue of liability. On a motion for a directed verdict the evidence must be considered most favorably to the party against whom a directed verdict is sought. Slusher v. Brown, Ky., 323 S.W.2d 870 (1959). Consequently we shall review the evidence as presented by Wright and his witnesses.

Wright was traveling 45 to 50 miles per hour when he saw shiny objects about 200 feet ahead. He immediately applied his brakes and attempted to swerve to the right. It was dark, it had been raining, and the road was wet and slick. Oncoming traffic prevented him from going around the tractor to the left. The application of his brakes caused him to skid. There were 24 feet of skid marks evident on the highway. The automobile traveled 25 feet along the shoulder after the collision. Wright had his low-beam headlights turned on, the oncoming automobiles had their headlights on, but the tractor had no lights and no reflector.

The contrary evidence of Butts was that it was not dark, the sun was shining, and that he was signaling a left-hand turn by holding his left arm straight out.

As stated in Slusher v. Brown, supra, there is no hard and fast rule which can be laid down in determining the question of negligence of a person failing to observe the presence of a standing vehicle ahead in time to stop or avoid it in safety. The surrounding conditions and circumstances of the particular case should be considered by the jury. The driver of the approaching vehicle is under the duty to exercise ordinary care, having regard for any unusual or extraordinary circumstances. In Owen Motor Freight Lines v. Russell’s Adm’r, 260 Ky. 795, 86 S.W.2d 708 (1935), we said:

“The presence of said unlighted truck, . in the position occupied by it, being an unexpected event which would not reasonably have been anticipated by an ordinarily careful and prudent person, we are of the opinion that the court ought not to determine as a matter of law that, the negligence of plaintiff was a contributing proximate cause of the collision in question.”

The trial court was not in error in submitting the question of Wright’s negligence to the jury.

Appellant insists he was entitled to an instruction on last clear chance. It is noted in McFall v. Tooke, 308 F.2d 617 (6 Cir., 1962), that:

“The doctrine of last clear chance has been described as a doctrine ‘as to the basis or extent of which there has been little agreement and endless discussion * * *.’ Prosser, Handbook of the Law of Torts, § 52, p. 291 (2d Ed., 1955).”

Herewith follows more discussion.

In Saddler v. Parham, Ky., 249 S.W.2d 945 (1952), and in Riley v. Hornbuckle, Ky., 366 S.W.2d 304 (1963), it was pointed out that the last clear chance doctrine has been limited in application to a situation where a party is in peril from which he is physically unable to escape and the other party should have discovered the peril in time to clearly have a chance to avoid an accident. It is imperative that there must have been a clear chance to avoid the accident available only to the party not in peril.

It is apparent from a review of the decisions of this court that the last clear chance doctrine is seldom applied in a situation wherein two motor vehicles are involved. The vast majority of cases where the doctrine has been held applicable have been ones in which a pedestrian was the party in peril and the other party was the driver of a motor vehicle. Possibly the rationale behind this tendency is the fact that in negligence cases there is a rule of law that the care to be exercised must be commensurate with power to inflict injury. See Jackson’s Adm’r v. Rose, 239 Ky. 754, 40 S.W.2d 343 (1931). Thus ordinary care as applied to the operator of a motor vehicle is of a higher degree than ordinary care as the term is applied to pedestrians. Clem v. Ball, Ky,, 237 S.W.2d 839 (1951). This is not to say, of course, that the doctrine shall never be applied to cases other than those involving a motorist and a pedestrian.

Turning to the case at hand, the facts do not justify an instruction on last clear chance. Although Butts testified it wasn’t dark, the jurors obviously did not believe him. They found both parties negligent. Had it been daylight the failure to have lights or reflector on the tractor would have been of no consequence. It is undisputed that Wright saw shiny objects ahead when he was about 200 feet away. Motor vehicles with lights on were approaching from the other direction. He could not distinguish what the shiny obj ects were, but he found out later that they were discs on the tractor; nevertheless he applied his brakes and attempted to turn to his right. His automobile skidded into the tractor. It is apparent that once he should have and did discover Butt’s peril, he did not have a clear chance in the exercise of ordinary care to avoid the collision.

The court instructed the jury that the speed limit at the time and place of this accident was 60 miles an hour in the daytime and SO miles an hour at night. Butts contends that the area where the accident occurred was a “built up” area and the speed limit was 35 miles an hour. The posted speed limits in this area were 60 miles an hour daytime and SO miles an hour night. The trial court ruled as a matter of law, after considering the facts, that the area was not a “built up”, “business” or “residential” area. That was the proper procedure and correct according to the facts presented. Roberts v. Taylor, Ky., 339 S.W.2d 653 (1960); Mayer v. Dickerson, Ky., 321 S.W.2d 56 (1959).

A state policeman testified concerning the light and weather conditions at the time he received a call reporting the accident and he also testified concerning light and the weather after he arrived at the scene of the accident. He did not attempt to testify as to what the light and weather conditions were at the scene of the accident at the time it occurred. It was not prejudicial to admit his testimony.

We have carefully examined the instructions given by the trial court and find them proper. We do not find any prejudicial error committed in the trial of this action.

The judgment is affirmed.

MILLIKEN, MONTGOMERY, OSBORNE and STEINFELD, JJ„ concur.

PALMORE and HILL, JJ., dissent.

PALMORE, Judge.

I dissent from the majority opinion because I feel that the question of last clear chance should have been submitted to and decided by the jury, and not by the trial court and by this court as a matter of law.

The observation that the doctrine of last clear chance is seldom applied in a situation wherein two motor vehicles are involved, and that possibly the rationale behind this tendency is the fact that care should be measured in terms of the power to inflict injury, suggests that the court itself is not in agreement on exactly what the doctrine means. That is understandable, of course, but I feel that what we ought to do under the circumstances is to undertake a better definition instead of leaving the matter in confusion.

If the court were to confine the doctrine strictly to pedestrians, upon the policy that the likelihood of death or great bodily injury is so much greater than is the case when all parties are within the protective framework of vehicles, one could at least understand the law whether he agreed with it or not. But the way in which this decision leaves it is very much like saying that we usually prefer Irish potatoes but sometimes eat sweet potatoes as well (though not ordinarily), but whether and why we are likely to eat sweet potatoes on a particular occasion is a question on which we cannot enlighten you, because we ourselves really don’t know.

Part of the trouble with last clear chance is that it is a misnomer. In a true sense, an accident just does not happen if any of the parties has a “clear chance” to avoid it. If he does have such an opportunity and doesn’t take it, it is not an “accident.” Some think the theory is based bn comparative negligence. I do not agree. Whether it is sound or unsound, I view the theory as being this: If either party to an accident could have avoided or averted it by the exercise of ordinary care after it was too late for the other party to do so by the exercise of ordinary care on his own part, he alone is responsible. In effect, it is a matter of proximate cause; when one party has a reasonable chance, by the exercise of ordinary care, to avert the accident after the other party, through negligence or otherwise, has become helpless to prevent it, the last negligence in point of time is the superseding and proximate cause. And this is true whether the damage is to person or property; last clear chancé is premised on cause, not effect.

Had the appellant in this case been a man standing in the highway there can be little question that a last clear chance instruction would have been required. Cf. Mullins v. Bullens, Ky., 383 S.W.2d 130, 133 (1964). In Deegan v. Wilson, 288 Ky. 801, 157 S.W.2d 68 (1942), the doctrine was held appli-. cable to a boy on a bicycle. See Stanley’s Instructions, § 110a. In Roederer’s Adm’x. v. Gray, 253 Ky. 669, 69 S.W.2d 998 (1934), it was held applicable to a man on a horse-drawn wagon. See Stanley’s Instructions, § 120. By what metamorphosis does it become inapplicable to a man on a tractor?

In conclusion, let me say that I do not consider this to be a strong case of last clear chance, but I do think there was enough to make it a jury question.

HILL, J., joins in this dissent.

      . I suggest that the “rationale” mentioned by the majority does not lie in the power to inflict injury, but in the severity of injury likely to be inflicted. A motorist has the same power to inflict injury on a load of hay standing in the road as he does a pedestrian, and certainly he has much more of a “clear chance” to see and avoid it.

      . Cf. W. P. Blackburn, Jr., “Last Clear Chance — A Defective Tool for Comparing Negligence and Determining Proximate Cause,” Louisville Bar Association Bulletin, Yol. 17, No. 1 (Spring 1967).


author: CULLEN, Commissioner.

text:
    MIAMI OIL PRODUCERS, INC., Appellant, v. Alvin GILLUM and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    June 2, 1967.
    Rehearing Denied Oct. 13, 1967.

      W. H. Dysard, Dysard, Johnson & Welch, Ashland, W. A. Johnson, Paintsville, for appellant.
    Jack L. Lewis, W. B. Hazelrigg, Paints-ville, for appellees.
   CULLEN, Commissioner.

Appellee Alvin Gillum, alleging that he had sustained a back injury while working for Appellant Miami Oil Producers, Inc., filed a claim for workmen’s compensation. The Workmen’s Compensation Board denied the claim. However, on Gillum’s appeal to the circuit court judgment was entered setting aside the order of the board and remanding the case to the board with directions that an award be made for total permanent disability plus all related benefits. Miami Oil Producers has appealed from that judgment.

The opinion and order of the Workmen’s Compensation Board stated that the questions presented for determination were (1) whether “the plaintiff sustained an injury as claimed,” and (2) if so, the nature and extent of the disability resulting. The board then proceeded to dispose of the case by answering the first question in the negative, finding that “the occurrence of the disabling incident claimed by the Plaintiff has not been established by the inclusion of adequate proof.”

This disposition of the case by the board is somewhat surprising in view of the fact that at the outset of the hearings on the claim the parties stipulated that “on said date the plaintiff received an injury by accident arising out of and in the course of his employment with the defendant.” We conceive that the stipulation settled the question of whether “the plaintiff sustained an injury,” leaving for consideration by the board only the question of the nature and extent of disability attributable to the injury. Accordingly, we think the circuit court properly set aside the order of the board. However, for reasons hereinafter stated, it is our opinion that the court erred in directing that the board make an award for total permanent disability.

One doctor testified that, assuming from purely subjective symptoms that Gillum had a herniated disc, his disability was no more than 30 percent. Another doctor testified that Gillum had a congenital condition known as spondylolisthesis and there was no evidence of traumatic injury. Obviously, in view of this testimony, there was an issue of fact for the board to decide as to how much disability Gillum sustained attributable to the “injury” which the parties stipulated he had received. The circuit court could not properly decide that issue of fact. See Columbus Mining Company v. Pelfrey, Ky., 237 S.W.2d 847; Tyler-Couch Construction Company v. Elmore, Ky., 264 S.W.2d 56. The court should have remanded the case with directions to the board to decide the issue of fact.

To the extent that the judgment sets aside the order of the Workmen’s Compensation Board it is affirmed; to the extent that it directs what award the board shall make it is reversed, with directions to enter a judgment remanding the case to the board for a determination of the nature and extent of disability attributable to the stipulated injury.

All concur.


author: CLAY, Commissioner.

text:
    James L. GIRTLEY and Thelma Girtley, Appellants, v. Walter COWLEY and Louise Cowley, Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Rehearings Denied Oct. 13, 1967.
    Burlyn Pike, Taylor & Pike, Shepherds-ville, for appellants.
    Thomas B. Givhan, Givhan & Stratton, Shepherdsville, for appellees.
   CLAY, Commissioner.

We have before us consolidated appeals which involve the question of whether appellants Girtley have fee simple title to a 30-foot passway or have only an easement right therein. The Chancellor adjudged the Girtleys had only an easement.

Appellants’ predecessor in title owned a substantial tract of land on the east side of the L&N Railroad Company in Bullitt County. In November 1960, appellants were conveyed a southern portion of this tract consisting of approximately 55 acres, which was described in the deed by metes and bounds. Immediately following the metes and bounds description, in single space typing, was the following provision:

“Also included is a 30-foot passway from the north line of the above tract along the right of way of the railroad 950 feet, more or less, to where the present crossing is.”

Approximately a year and a half later the same grantor conveyed to appellees Cowley the northern part of the original tract, containing approximately 125 acres. In the descriptive portion of this deed appears the following provision:

“There is excluded the tract conveyed James L. Girtley, etc. by a' deed from Dell Girtley, etc. dated November 29, 1960, recorded in Deed Book 98, Page 636 in above office and also the passway therein described.” (Emphasis ours.)

Another portion of this deed provided the conveyance was subject to a specific “easement” of a telephone company and other easements.

Under the deeds the common grantor of both parties specifically conveyed this 30-foot strip to the Girtleys in fee simple and specifically excluded it from the land conveyed to the Cowleys. There is no ambiguity in the deeds. We are at a loss to understand how the Cowleys could have acquired fee simple title to this pass-way. The manifest intention of the common grantor, as disclosed in the language of the two deeds, is just the other way around.

While a “passway” would ordinarily connote an easement, the wording of the deeds indicates very clearly that the term “passway” was descriptive of the purpose for which the strip was conveyed and was not a limitation on the quality of the estate created therein. This would seem particularly true when in the last deed to the Cowleys, after a provision that the conveyance was subject to “any other easement affecting said land”, a subsequent separate paragraph expressly excluded the passway from the conveyance. In neither deed is it referred to or treated as an easement.

It is our opinion that the 30-foot strip was conveyed to the Girtleys in fee simple and the Chancellor erroneously construed the deeds otherwise in his judgment of June 23, 1964. The subsequent judgment of March 26, 1965, being based upon the former judgment, was likewise erroneous.

The judgments are reversed with directions to enter a judgment or judgments for appellants Girtley consistent with this opinion.

All concur.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Ex parte William Lee MEADOWS.
    No. 40314.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Rehearing Denied Oct. 11, 1967.
    Rois L. Brockman, Woodville, for appellant.
    R. A. Richardson, Dist. Atty., Kuntze, Leon'B. 'Doüglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

OPINION

This is a habeas corpus proceeding in which the petitioner, an inmate of the Texas Department of Corrections, attacks the sentence under which he is so confined.

The application is prison drawn and the petitioner is not represented by counsel.

The conviction is for robbery with punishment assessed by a jury at 50 years. Trial was in the 88th District Court of Tyler County on a plea of guilty before a jury on March 24, 1959.

The sole ground upon which petitioner seeks release from further confinement under the 5 to 50 years sentence is “that counsel was appointed by the court and that he did not sign a waiver of the ten (10) days allowed, counsel to prepare for trial (Art. 494 C.C.P., 1925 as amended Acts 1957, p. 322).” His argument is that, because he was tried on the same day that counsel was appointed and sentenced on the following day, he is entitled to relief in view of the recent decisions of this Honorable Court. Ex parte Dowden, Tex.Cr.App., 408 S.W.2d 512; Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439; Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775; and the provisions of Art. 494, Vernon’s Ann.C.C.P. are relied upon.

The facts reflected by the certified copies of the indictment, order appointing attorney for the defendant, docket sheet, judgment of conviction, waiver of time allowed for filing motion for new trial and sentence, the evidence adduced at a hearing at which appellant testified and was represented by-counsel, and the findings, conclusions and the certification of the trial judge, fully sustain the trial court’s certification: “It is true and an official fact that defendant’s court appointed attorney did not execute and file a waiver as set out in Article No. 494 C.C.P., but under the peculiar facts of this case, how the defendant has been harmed, what injustice was cast upon him, or why the case was not tried fairly and in accordance with defendant’s and his attorney’s request coupled with no request for additional time by defendant’s attorney, is not clear to trial court and is not such omission that should call for relief.”

To grant post conviction relief to petitioner because of the violation of a statute which violation did not deprive him of a fair trial or a constitutional right would be to rely upon our previous errors to justify another.

It is true that the denial of an accused’s right to counsel or the effective aid of counsel renders a conviction void and subject to post conviction attack in the state courts in habeas corpus proceeding under Art. 11.07, formerly Art. 119 C.C.P., as amended in 1943, as well as in the Federal Courts. Ex parte Gudel, 368 S.W.2d 775, supra.

At the time of petitioner’s trial (on March 24, 1959) Article 494 C.C.P., as amended in 1957 applied only in capital cases. The statute had not been substantially changed from 1858 to 1957. The portion of said statute which required that counsel be appointed was held to be mandatory. Burden v. State, 70 Tex.Cr.R. 349, 156 S.W. 1196; but the portion which required that counsel shall have at least one day to prepare for trial was held not to be mandatory. Brotherton v. State, 30 Tex.App. 369, 17 S.W. 932; Bradley v. State, 96 Tex.Cr.R. 81, 256 S.W. 292; Spalding v. State, 137 Tex.Cr.R. 329,127 S.W.2d 457.

In the cases cited the question decided was that on appeal the failure of the trial court to allow one day for preparation is not always reversible error.

In Brotherton v. State, supra, Judge Davidson said:

“The bill does not state that counsel was unprepared to proceed with the trial of the cause. No injury is shown to have occurred to defendant in this matter. This statute is not mandatory, and is only intended to secure time for necessary preparation for an intelligent management of the case, to the end that the party being tried shall have a fair trial.”

Since the 1957 and 1959 amendments, this court has said that, the provisions of Art. 494 C.C.P., are mandatory, including the portion which at the time of appellant’s trial read “counsel so appointed shall have at least ten (10) days to prepare for trial, unless such time be waived in writing by said attorneys.” Bennett v. State, Tex.Cr.App., 382 S.W.2d 930.

It does not follow that the failure of appointed counsel to waive in writing the 10 days allowed him to prepare for trial is sufficient grounds for post conviction relief, if it appears that such failure did not result in injury to the defendant such as would deprive him of a fair trial or deny him a constitutional right.

There are many statutes the violation of which, if properly raised, would be ground for a new trial or reversal on appeal but would not be ground for relief in a post conviction proceeding.

There is another reason why petitioner is not entitled to relief.

Petitioner was tried prior to the effective date of the 1959 amendment of Art. 494 C.C.P.

Art. 494 C.C.P., as amended in 1957 then in effect did not require that the 10 days allowed appointed counsel to prepare for trial be waived in writing by the accused.

The indictment alleged the capital offense of robbery with firearms but was reduced by proper action on the part of counsel for the state.

Art. 494 as amended in 1957 did not require the appointment of counsel to defend petitioner. His right to counsel was a constitutional, not a statutory right. •

Insofar as they hold or appear to hold that the failure of court appointed counsel, or said counsel and the accused, to waive in writing the 10 days allowed appointed counsel to prepare for trial is ground to set aside an otherwise valid conviction by habeas corpus, or other post conviction or collateral attack, Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439; Ex parte Dowden, Tex.Cr.App., 408 S.W.2d 512; Ex parte Brown, Tex.Cr.App., 404 S.W.2d 590 and Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, are overruled.

While not raised by his present application, petitioner’s former complaint that his illegally obtained confession was admitted in evidence was dealt with in the hearing before Judge Coe held pursuant to the order of this court and the disputed issues of fact resolved against petitioner. Judge Coe properly concluded that the law at the time the confession was made (January 1959) did not require that the person taking it advise the accused that he was entitled to an attorney.

The petition for writ of habeas corpus is denied.

MORRISON, Judge

(dissenting).

Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439; Ex parte Dowden, Tex.Cr. App., 408 S.W.2d 512; Ex parte Brown, Tex.Cr.App., 404 S.W.2d 590 and Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, each were attacks upon convictions obtained in contravention of Art. 494, V.A.C.C.P., as amended in 1959 and should not be overruled, because they represent a constitutionally sound effort, in keeping with the intent of the Legislature, to insure that each indigent is represented by effective and prepared counsel.

I respectfully dissent to that portion of the majority opinion which overrules them.


author: DICE, Judge.

text:
    Lavern ASHWORTH, Appellant v. The STATE of Texas, Appellee.
    No. 40514.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Rehearing Denied Oct. 11, 1967.

      Clyde W. Woody, Marian S. Rosen, John P. Farra (all on appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Donald Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

Appellant was tried upon an indictment for murder with malice and convicted of the offense of murder without malice. Punishment was assessed at confinement in the Department of Corrections for a term of five years.

Notice was given by the state that it would not seek the death penalty.

The issues of appellant’s guilt or innocence and punishment were determined under the alternate procedure provided by Art. 37.07-2 of the 1965 Code. Following return of the jury’s verdict of guilty, appellant elected to have the judge assess the punishment.

The evidence was undisputed that appellant killed the deceased by shooting him with a pistol. The killing occurred just outside the apartment of the deceased.

Testifying in her own behalf, appellant claimed the right of self-defense, swearing that on the night in question the deceased had beaten her up and was coming at her with a gun. She swore that she shot the deceased because she was in fear of her life and serious bodily injury. She further stated that she did not intend to kill the deceased but only intended to shoot him to prevent him from killing her.

The issue of self-defense was submitted to the jury.

Four grounds of error are urged by appellant in her brief filed in the trial court.

In her first ground she complains of the court’s instructions in certain paragraphs of the charge, which she insists were comments upon the weight of the evidence and constituted a denial of her rights guaranteed by Article 1, Sections 10 and 19 of the Constitution of this State, Vernon’s Ann.St. and the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

The record reflects that while certain objections were made to the charge, no objections were made, on the grounds now urged, to any of the paragraphs of which appellant now complains.

Art. 36.14, V.A.C.C:P. (1965), which directs that the trial judge deliver a written charge to the jury, provides:

“ * * * Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. * *” Article 36.19 of the Code provides:
“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.”

In the absence of an objection to the charge, no errors therein can be considered which are not fundamental. Morrow v. State, Tex.Cr.App., 396 S.W.2d 386.

We find no fundamental error in the charge.

It does not appear from the record that appellant has been deprived of a fair and impartial trial, nor does it appear that any error was committed which was calculated to injure her rights. The ground of error is overruled.

In her ground of error #2, appellant insists that the court erred in failing to charge the jury on the lesser degrees of culpable homicide, including assault with intent to commit murder, pursuant to the requirements of Articles 37.08 and 37.09 of the Code of Criminal Procedure.

No request was made by appellant that the court charge on any lesser included offense and no objection was made to the court’s charge on such ground. In the absence thereof, appellant is in no position to complain. We observe, however, that a charge on any lesser included offense was not called for under the evidence.

In her fourth ground of error appellant insists that the court erred in instructing the jury pursuant to the provisions of Art. 37.07-2(a) as to the punishment provided by law for the offenses of both murder with and without malice.

No objection was made by appellant to the court’s instructions.

Art. 37.07-2(a), supra, provides, in part, as follows:

“ * * * provided, however, that in the cha'rge which submits the issue of guilt or innocence there shall be included instructions showing the jury the.punishment provided by law for each offense submitted.”

Appellant insists that such provision of the statute is unconstitutional because it authorized the court to instruct the jury as to the punishment prescribed for the offense, when she had not elected to have the jury determine her punishment. Such procedure, appellant contends, violates her rights to equal protection and due process of law as guaranteed under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. No case is cited by appellant in support of her contention.

We know of none, and hold the statute constitutional.

Art. 1, Sec. 15, of our Texas Constitution, provides that .the right of trial by jury shall remain inviolate. Section 15 further grants to the legislature the power to regulate the trial by jury. The enactment of Art. 37.07-2, providing for the alternate procedure in determining guilt or innocence of an accused and the punishment to be assessed, was within the province of the legislature under the authority of Art. 1, Sec. 15, of the Constitution.

Recently, in Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, the Supreme Court of the United States recognized the wide latitude of the states in regulating jury trials in criminal cases without violating the due process clause of the Constitution of the United States.

In her remaining ground of error, #3, appellant insists that the court erred in refusing to permit her husband, on direct examination, to testify that when she returned home from the scene of the killing she told him that she had killed the deceased because he was coming at her with a gun. Appellant insisted that the statement to her husband, made after the shooting, was, under the circumstances shown, admissibile as a part of the res gestae.

The state’s objection to the testimony on the ground that it was a self-serving statement was by the court first sustained. We need not pass upon the correctness of the court’s ruling in view of the fact that appellant was later permitted to relate, while she was testifying as a witness in her own behalf, what she had told her husband when she returned home after the killing.

At this point, when the court ruled that such statement would be admitted as res gestae, the state withdrew its objection and stated that it did not want any restriction placed on the entire conversation between appellant and her husband.

The court then advised appellant that she might proceed with the testimony. Thereafter, appellant’s husband was recalled to the stand and testified that when she returned home she stated that she had killed the deceased “Because he was after me with a gun, trying to kill me.”

Under the record, no prejudicial error is shown. Brinkley v. State, 161 Tex.Cr.R. 413, 277 S.W.2d 704.

The ground of error is overruled.

The judgment is affirmed.