author: BRADY, Commissioner.

text:
    Frank MASHAK, Plaintiff-Appellant, v. Hon. John H. POELKER, Comptroller, Hon. Raymond R. Tucker, Mayor, Hon. A. J. Cervantes, President of the Board of Aldermen, and as Members of the Board of Estimate and Apportionment of the City of St. Louis, a municipal corporation, Defendants-Respondents.
    No. 30913.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing, to Modify Court’s Decision or to Transfer to Supreme Court Denied May 21, 1962.

      Frank Mashak, pro se.
    Thomas J. Neenan, City Counselor, Eugene P. Freeman, Associate City Counselor, St. Louis, for respondents.
   BRADY, Commissioner.

In this declaratory judgment action, the pleadings raise the issue of the legality of the establishment of the position of administrative assistant in the juvenile division of the circuit court of the City of St. Louis. The appellant alleges that the statute involved, Section 211.161 RSMo 1959, V.A.M.S., does not authorize the creation of such a position or the employment of a person to fill it, and that the salary paid to the occupant of that position was illegal as exceeding the amount stated in Section 211.-381 RSMo 1959, V.A.M.S., and in Article VIII, § 8, of the Charter of the City of St. Louis. The appellant primarily prayed the trial court to “* * * construe and interpret * * * ” the charter of the City of St. Louis, the statutes, and all laws pertaining to the action of the respondents in paying and in authorizing the payment of tax funds for the employment of an administrative assistant to the judge of the juvenile division of the circuit court of the City of St. Louis. The trial court was also requested, if it found the hiring and paying of such a person “ * * * to have been illegal and unauthorized by law * * ” to require the defendants to repay the city for all such “ * * * wrongful and illegal expenditures * * * ” or to recover such moneys for the city, and that the respondents be permanently enjoined from continuing the employment and payment of the administrative assistant.

The respondents answered by way of general denial, and also made certain allegations designated as “Matters of Affirmative Defense.” The effect of these matters is twofold: first, to place in issue the construction of § 211.161, subd. 3, supra; and second, to allege certain matters which respondents contended assisted the trial court in its construction of the statutes and charter by stating the functions of such an office as created. The effect of the reply was to deny these affirmative allegations. The parties have also filed with the transcript a stipulation signed by respondents’ counsel and appellant, a member of the Bar who appears pro se, stating that the transcript of record on appeal inadvertently omitted and is to include the motion of plaintiff-appellant to strike, or in the alternative to make more definite and certain these paragraphs of the “ * * * affirmative matters * * * ” contained in respondents’ answer. A copy of that motion was attached to the stipulation.

The trial court held that the appointment of the office of administrative assistant was authorized by the provisions of § 211.161, subd. 3, supra.

Before proceeding to the merits of this cause, appellant’s contention that the trial court prejudicially erred in that it * * * failed to rule upon his motion * * * ” to strike is for our determination. The answer to that contention is that all orders, judgments and decrees issued under the provisions of the declaratory judgment act are reviewed as other orders, judgments and- decrees, Section 527.-070 RSMo 1959, V.A.M.S., and we try this action de novo, ruling upon both the law and the evidence, but giving due deference to the findings of the trial court where the credibility of witnesses and the weight of testimony are involved. Montgomery v. Getty, Mo.App., 284 S.W.2d 313. We have authority to exclude that which we determine was improperly included. In this regard, we think the trial court correctly considered the evidence on the matters which the appellant urges us to cast aside for the reason pointed out by the trial court in its memorandum opinion. Therein the court held such matters were pertinent to this controversy, not because whether or not the juvenile division needs an administrative assistant is determinative of its authority under the statute to employ and pay such a person, but because such evidence went to the question of what that person does, and therefore to the question of whether the office of administrative assistant is a “facility” of the court in the sense intended by § 211.161, subd. 3, supra. Accordingly, we find no error in the trial court’s action with respect to the appellant’s motion.

There are some other preliminary-considerations to be disposed of. The transcript disclosed that the plaintiff-appellant is a resident and a taxpayer of the City of St. Louis, who filed as exhibits his tax receipts for six years previous to this trial, which was held on November 22, 1960. Accordingly, he is a proper party plaintiff and can maintain such an action. This specific point was so ruled in the early case of Newmeyer et al. v. Missouri & M. R. Co. et al., 52 Mo. 81, 14 Am.Rep. 394; and the principle therein announced has been followed by our courts since that time, Civic League of St. Louis v. City of St. Louis et al., Mo., 223 S.W. 891; and see Everett v. Clinton County, Mo., 282 S.W.2d 30, at loc. cit. [5, 6] page 35, and cases there cited. There was no contention raised that a declaratory judgment action is not the proper vehicle for such an action, but that question has also been ruled upon by the appellate courts of this state, Berghorn v. Reorganized School District No. 8, Franklin County, 364 Mo. 121, 260 S.W.2d 573, it being equally well settled that both declaratory and coercive relief may be granted in an action brought under the declaratory judgment act, Section 527.080 RSMo 1959, V.A.M.S.; Hudson v. Jones, Mo.App. 278 S.W.2d 799; Montgomery v. Getty, supra.

In view of our disposition of this case, there is no need to set out the evidence fully herein and we will confine ourselves to that which is pertinent to ascertaining the kind or type of work the administrative assistant does, and what his authority is. The defendants-respondents’ evidence shows that the administrative assistant is subordinate to the judge of the juvenile division, and the assistant’s decisions are reviewed by that judge. The judge of the juvenile division stated that the administrative assistant’s duties are to carry out “ * * * the judge’s policy and he carries out the judge’s personnel practices and he sees that the treatment and supervision that the judge adjudicates is carried out in the overall. He doesn’t go into each detailed case, of course, because Mr. O’Brien and I confer anywheres from fifteen minutes to an hour a day, and he sees that whatever I want done is done; and he also advises me with reference to the practice in the field.” It also appeared that the administrative assistant advised the judge as to the employment of agencies for the alleviation of sociological problems of children. At another point in the transcript this witness testified that the administrative assistant was in charge of the training of juvenile officers and at another place testified that the administrative assistant handles the distribution of the case load among the juvenile officers on the basis of the “ * * * ability, the training, the development of the various members of the staff.” The judge of the juvenile division of the circuit court of the City of St. Louis testified further to the effect that the creation of the office of administrative assistant was a recommendation contained in a survey and report of the juvenile division prepared by the National Probation and Parole Association, and when asked, “What was the function of such a director of court services — what was the position to entail and represent?” answered,

“Well, for the administration for the whole program under the policies and orders of the court, of a rather large staff over there. We have around thirty juvenile officers and we have supervisors — I don’t know how many employees we have. My guess would [be] seventy to eighty. We have personnel problems, we have intake problems, we have problems with the police department, not only your personnel problems' — and then your arrangements and agreements with other agencies; we have a great deal to do with Jewish Welfare, Catholic Charities, Family Service, problems with reference to community policies * * * as I say, personnel, employment of personnel, recruitment of personnel — getting up the budget. , ' . ..
“Q. Training personnel?
“A. And training programs, continuous education programs. Then you have a problem of building maintenance, cleanliness, housekeeping problems, telephone service — * *

Following this testimony; the witness continued his discussion of the problems inherent in the administration of the juvenile court, and concluded by stating,

“ * * * As a matter of fact, in my opinion, it would be absolutely impossible for the juvenile judge to conduct a juvenile court without an administrator who knows the operation of the court * * * human dynamics, how to handle personnel, how to administer, how to assign cases, how to acquire court reports, how to evaluate cases.”

It further appeared from the testimony of this witness that the administrative assistant had established operating procedures for every phase of the juvenile court’s work; had provided standards as to what the juvenile’s investigative file should contain before it is placed before the court for its guidance and information, and also how such material should be organized; and had established “intake policies” dealing with the broad rules as to

“ * * * whether a case should be accepted by the court or whether it can be handled in the police department or whether it can be handled by a private agency or whether it should be referred to the field division, whether it can be disposed of with a conference, with the parents, whether a petition should be filed.”

The administrative assistant had also instituted staff training and recruitment programs and had taken the burden of supervisory control of the juvenile officers from the juvenile judge.

The witnesses Reardon, Claeys, and Hugge, deputy juvenile officer's, all testified as to what their work entailed but gave no testimony as to what the functions of the administrative assistant were.

The witness Gorman testified she was the chief deputy juvenile officer, and described her duties before and after the appointment of the administrative assistant, but gave no testimony as to what that person’s duties were except that he gave orders to her which resulted in substantial curtailment of her authority and which indicated his control over all phases of the work done by juvenile court employees.

The witness Harmon testified that he was employed by the Health Division of the City of St. Louis as Chief Social Worker for the Child Guidance Section and that his duties were as follows:

“Well, I have- — -I mean my job is to take care of the statistic reports of all four of the clinics; to coordinate the intake, that is, the total number of children brought into all of the clinics; to supervise the three social workers who are in charge of three of the clinics. I also supervise two field work students and a case worker, two case workers.”

He testified that the administrative assistant had nothing personally to do with the aspect of the clinic he was concerned with, but that the administrative assistant had attended a meeting “ * * * to discuss the possibility of having one person handle the referrals from the court to our clinic so that individual juvenile officers would know the status of their own cases, that is, more of a liaison person. I recall this was discussed with him at a meeting that I attended.”

The witness Reynolds, a psychiatrist, employed by the Health Division of the City of St. Louis, testified that he directed the Juvenile Court Branch Clinic operated by the Health Department, and when asked what the administrative assistant does at the clinic, answered

“I think, in brief, the internal administration of the clinic I handle. The matters having to do with the relationship of the clinic to the court, the types of service to be provided by the clinic to the court, I consider a sort of external control or administration, and this is handled by Mr. O’Brien.”

In the testimony given by the witness Lewis, it appeared that the travel expenses “ * * * or anything of that sort * * * for the employees of the juvenile court were approved by the administrative assistant.

We are adjured to a liberal construction of the various sections of the Juvenile Code by Section 211.011 RSMo 1959, V.A.M.S., and are to read and construe § 211.161, supra, in the light of the other sections of the complete law or code of which it is a part, In the Interest of Ronald C-, Mo.App., 314 S.W.2d 756. Our primary duty, however, in construing a statute of this state is to ascertain the legislative intent from the very words used, if possible, and to put on the statutory language its plain and rational meaning, having in mind the object of the enactment.

The intention of the legislature in passing this section of our statutes is so clear from a reading thereof that we will abandon our practice of not setting out the statute in the opinion. It reads:

“§211.161. Court may require physical or mental examination of child— costs paid by county.
“1. The court may cause any child within its jurisdiction to be examined by a physician, psychiatrist or psychologist appointed by the court in order that the condition of the child may be given consideration in the disposition of his case. The expenses of the examination when approved by the court shall be páid by the county.
“2. The services of a state, county or municipally, maintained hospital, in-situation, or phychiatric or health clinic may be used for the purpose of this examination and treatment.
“3. A county may establish medical, psychiatric and other facilities, upon request of the juvenile court, to provide proper services for the court in the diagnosis and treatment of children coming before it and these facilities shall be under the administration and control of the juvenile court. The juvenile court may appoint and fix the compensation of such professional and other personnel as it deems necessary to provide the court proper diagnostic, clinical and treatment services for children under its jurisdiction.”

The first subsection of that section gives, the juvenile court the authority to have a child within its jurisdiction examined by a physician, psychiatrist or psychologist, and to compel the payment by the county for such an examination. The second subsection thereof grants the court authority, if it sees fit to do so, to use state, county or municipal hospitals, institutions, or psychiatric or health clinics for the purpose of this examination.

The third subsection is divided into two. sentences. The first gives authority to the-juvenile court to request the establishment of “ * * * medical, psychiatric and other-facilities * * * ” by a county, and also-provides for “ * * * these facilities * * * ” to be under “the administration and control of the juvenile court * * * if they are established. The purpose of the legislature was clearly to provide a means, whereby those counties in this state that did not have such facilities at the passage-of this section, or wherein it was determined to be inadvisable to use such existing facilities, could establish such facilities of their own if the juvenile court saw fit to-request them and the county authorities agreed. By the use of the word “may” in-this sentence and in subsection 2, the legislature also recognized that even though there may be a state, county or municipally-maintained hospital, institution, or psychiatric or health clinic within the county, the county may nevertheless see fit to establish its own facilities of this nature for the diagnosis and treatment of children.

The very provisions of the first subsection lead irresistibly to the conclusion that the “other facilities” referred to in the first sentence of subsection 3 of this section were those that were to be used in the medical, psychiatric or psychological examination which the court was given authority to order by the provisions of the first subsection. The wording of the second subsection is likewise compelling that what the legislature intended by the use of the words, “other facilities”, in the third subsection were those enumerated in the second subsection: that is, hospitals, institutions, or psychiatric or health clinics.

Not only does the organization of the section compel such a result, but the very language used requires the same con•clusion. Words in a statute are to be construed in their normal and usual meaning and usage. We are cited by the respondents to State ex rel. Knight v. Cave, a case by the Supreme Court of Montana in 1897, reported in 20 Mont. 468, 52 P. 200, wherein that court held that a teacher in a school could be considered a facility. We have •searched for similar holdings in this state .and we have found none. Moreover, Webster’s New International Dictionary, 3rd Edition, gives no indication that the word “facility” is used to refer to a person. The definitions of that word as found in that source refer to it as a quality, such as the •quality of being easily performed or of affability or graciousness, or as being “something that promotes the ease of any .action, operation, transaction or course of conduct”, or as “something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.” To say that the legislature, in view of the definition stated herein of the word, “facility”, and -the rule that we are to construe the words used in the statute in their normal and usual sense and usage, intended the word “facility” to include a person would amount to judicial legislation, in which, regardless of how much we may be in agreement with the desirability of the employment of a person such as here involved, we cannot indulge.

The application of the rule of ejus-dem generis compels the same result. While this court has held, State ex rel. Schneider’s Credit Jewelers v. Brackman, Mo.App., 260 S.W.2d 800, at loc. cit. [11, 12] page 813 (reversed on other grounds, Mo.App., 272 S.W.2d 289) that this rule is not to be used to nullify the plain intent of the legislature, it is likewise clear that the aid to construction of a statute which the rule provides may be used to help .ascertain that intention. The rule of ejusdem generis is a familiar rule of construction that where general words follow the enumeration of particular classes or things the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. See Missouri Digest, Statutes, <®=’194. In accordance with that rule of construction, the words “other” or “any other” following an enumeration of particular classes are to be read as “other such like” and to include only others of like kind or character. See State v. Eckhardt, 232 Mo. 49 (133 S.W. 321) at page 52 of the report of that opinion in 232 Mo. In the instant case, the application of the rule of ejusdem gen-eris would require the “other facilities” as those words are used in paragraph 3, § 211.161, supra, to mean other facilities like medical and psychiatric facilities.

The respondents urge that the terms “medical” and “psychiatric” are terms which exhaust their separate classes, and therefore the phrase “other facilities” must be construed to intend something at variance with the facilities relating to the terms, “medical” and “psychiatric.” If the terms, “medical” and “psychiatric” are specific terms which exhaust their class, or denote things greatly different from each other, then the respondents’ position has merit. This application of the rule is recognized in our case law. In State v. Eckhardt, supra, at loc. cit. page 52 of 232 Mo. of the official report, at page 321 of 133 S.W., the court held:

“The rule is based on the obvious reason that, if Legislature had intended the general words to be used in their unrestricted sense, they would have made no mention of the particular classes. The words ‘other’ or ‘any other,’ following an enumeration of particular classes, are therefore to be read as ‘other such like,’ and to include only others of like kind or character. The doctrine of ejusdem generis, however, is only a rule of construction to ■be applied as an aid to ascertaining the legislative intent, and does not control where it clearly appears from the statute as a whole that no such limitation was intended. Nor does the doctrine apply where the specific words of a statute signify subjects greatly different from one another; nor where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific tvords or be meaningless.’ 36 Cyc. pp. 1119-1122. This definition fairly and clearly explains the meaning, purpose manner of applying, and limitations of the doctrine invoked.” (Emphases supplied.)

We cannot agree with the respondents’ contention that the words, “medical” and “psychiatric” are words which describe quite different things and which totally exhaust their class. Webster’s New International Dictionary, 3rd Edition, defines “medical” as “of, relating to, or concerned with physicians or with the practice of medicine * * *.” That same work defines “psychiatric” as “relating to, employed in, or of concern to psychiatry” and defines “psychiatry” as “a branch of medicine that deals with the science and practice of treating mental, emotional and behavioral disorders * * Clearly “medical” and “psychiatric” do not denote subjects greatly different from each other, but do in fact refer to those that are connected with each other. Neither does each embrace all the objects of the class; one, by the definitions above quoted, being a specialty, branch, or division of the other.

As has been stated earlier herein, the juvenile code of this state is a complete law, and therefore each section is to be read and construed in the light of the other sections thereof, In the Interest of Ronald C-, supra. A reference to other sections of the comprehensive code of which § 211.161, supra, is a part compels the same result. Had the legislature intended to provide for the employment of an administrative assistant, or a person, regardless of the designation that might be given him, serving under the authority and direction of the juvenile judge but having general supervisory and administrative control over the other employees and functions of the juvenile court, it would certainly have provided for the establishment of such an office, and his compensation, in Section 211.381 RSMo 1959, V.A.M.S., wherein “the employees of the juvenile court” in the City of St. Louis and other counties of the first class and their compensation is provided. The statute is detailed and includes juvenile officer, chief deputy juvenile officer, deputy juvenile officers, secretaries and stenographers, and clerks and typists. Any statute which is that inclusive certainly would have included such an important office as administrative assistant, had one been contemplated by the legislature when enacting the juvenile code. The auxiliary rule of statutory construction of expressio unius est exclusio alterius would be applicable if needed to help us ascertain the intention of the legislature.

The second sentence of § 211.161, subsection 3, supra, provides the juvenile court with authority to “appoint and fix the compensation of such professional and other personnel * * * ” as it deems necessary to provide the court with proper diagnostic, clinical and treatment services. The reference therein to “* * * such professional * * * ” must be read with the previously discussed provisions of subsection 1 clearly in mind, and was intended to refer to the professional people therein named, a physician, psychiatrist or psychologist. By the words, “other personnel”, the legislature clearly had in mind someone different from such professional people, and that term must be read with the provisions of the first sentence of subsection 3 with reference to placing with the juvenile court the “ * * * administration and control * * * ” 0f ⅛6 hospital institution, psychiatric or health clinic which the county may establish if its governing body and the juvenile judge see fit to so do. Being cognizant of that provision and being aware, as men of experience in the establishment and administration of such hospitals, institutions, or psychiatric or health clinics on a state level, that such cannot be properly or effectively administered or controlled without other personnel than those actively engaged in the diagnosis and treatment on a professional level, the legislature intended by the words “ * * * other personnel * * ” to provide for the employment and compensation of the auxiliary personnel that would be necessary should such a facility be established. For example, the legislature certainly must be held to have knowledge of the need for accurate case records, for cleanliness, and for orderly or nursing assistants. Such wording was placed in this section to provide for the employment and compensation of secretaries, janitors, nurses and orderlies and such “ * * * other personnel * * * ” necessary, although auxiliary, to the functioning of the hospital, institution, or psychiatric or health clinic. Wisely realizing that different situations would call for different types and numbers of “ * * * other personnel * * * ” the legislature did not attempt to specify the number or classification of such “ * * * other personnel * * * ” but left those matters within the discretion of the juvenile court, providing only that these “ * * * other personnel * * * ” be deemed by the juvenile court necessary to provide it with proper diagnostic, clinical and treatment services for the children under its jurisdiction.

Again mindful of our duty to construe this section, keeping in mind the other sections of the Code of which it is a part, this construction of the last sentence of § 211.-161, subsection 3, supra, is in keeping with the provisions of § 211.381, supra. Certainly the legislature would not, in § 211.381. supra, when classifying and fixing the compensation of juvenile court employees, leave out of that section the professional and other personnel which it gave authority to the juvenile court to appoint and fix compensation for, had it not intended that the professional and other personnel therein named would be in addition to, or other than, those stated in § 211.381, supra, and were not to be bound by the rates of compensation stated therein. The legislature realized that those within the terms “ * * * such professional and other personnel * * *” used in § 211.161, subsection 3, supra, would not really be employees of the juvenile court as that term is used in § 211.381, supra, but would be employees of a medical, psychiatric or other such like facility which would be under the administration and control of the juvenile court.

The result to which we are compelled by the language of the statute itself as buttressed by the auxiliary rules of construction of expressio unius est exclusio alterius and ejusdem generis is that the intention of the legislature in enacting this section was, first, to provide the juvenile court with authority to order physical, psychiatric and psychological examinations of children under its jurisdiction; second, to allow the use of presently existing state, county, or municipal hospitals, institutions, and psychiatric or health clinics for that purpose in those counties where such exist; and third, to provide authorization for a county wherein it was decided not to use presently existing facilities or wherein no state, county, or municipal hospital, institution, or psychiatric or health clinic is located to establish, under the administration and control of the juvenile court, a county hospital, institution or psychiatric or health clinic for the purpose of medical, psychiatric or psychological diagnosis and treatment of children coming before the court; further, to provide for the staffing of such a place, if it is to be established, not only with professional medical, psychiatric, and psychological professionals, but also with the auxiliary personnel which, under the circumstances surrounding the establishment of the facility in that county, the juvenile court deems necessary to provide the children sent to that place by the court with proper diagnostic, clinical and treatment services.

What we have said above disposes of the contention that the words, “ * * * other facilities * * * ”, as used in § 211.-161, subsection 3, supra, would authorize the employment of the administrative assistant here involved adversely to the respondents. ■ While we can conceive of a situation where the last sentence of § 211.-161, subsection 3, supra, as herein construed would authorize the employment of such a person, the facts of the instant case compel the opposite result. The evidence clearly indicates that the administrative assistant in this case was never hired for, nor was his authority and work ever intended to be limited merely to the administration and control of the medical, psychiatric or psychological or health clinic which the juvenile division of the circuit court of the City of St. Louis used in the diagnostic, clinical and treatment services for children under its jurisdiction. In the instant case, the evidence is clear, and largely provided by the respondents’ own witnesses, that the duties of the employee here involved went far beyond such a restriction. Only one witness gave any testimony from which we can find any foundation to support the work of an administrative assistant in such fields — that was the witness Youngdahl, whose testimony on the point is summarized earlier in this opinion. But even his testimony is lacking any specific reference to this employee’s activities. In fact, the witness was asked, “What are the functions * * * ” of the office generally, and his answer went to what the functions, duties and responsibilities of a “Director of Social Services” or “Administrative Assistant” should be and would be, as he understood the office. Nowhere did he relate what this specific administrative assistant did. This testimony then immediately follows his general summary of what the position should and would entail as he understood it:

“Q. Would it be fair to say this, Dean, that the person in such a position provides a professional skill on a management — of the internal management of the staff of the court, and provides a professional skill to the court in the utilizing of external agencies and external means for the treatment and care of children?”
“A. That would be a correct statement, in my opinion.”
THE COURT: “Well, does he assist in the administration of diagnosis and treatment ?”
THE WITNESS: “He facilitates it. He has staff meetings. If he has a very difficult case, he might call the people together and say, ‘Let’s have a common discussion.’ ”
THE COURT: “In getting together and formulating proposed procedures — ”
THE WITNESS: “I would say — ”
THE COURT: “Conferring with the judge and recommendations to the judge to adopt or reject them?”
THE WITNESS: “Right.”
THE COURT: “Overseeing the person under his charge, is he engaged in diagnosis or treatment?”
THE WITNESS: "I’d say.”
THE COURT: “Is that one aspect ?”
THE WITNESS: “You can’t have diagnosis within which to administer that, the same way as treatment. I would say definitely he is.”

It is clear that the answer of the witness that such a person was engaged in diagnosis and treatment was not based upon what this particular administrative assistant did, but rather was based upon what an administrative assistant would do as the witness understood the office. Neither is there testimony elsewhere in the transcript to the effect that this employee did all the things which Youngdahl enumerated in his general review of the functions of an administrative assistant. In fact, all the other evidence is that he did not do those things specifically related to the diagnosis, clinical and treatment services connected with medical, psychiatric or psychological examination. The whole effect of the testimony on the point is that this employee’s duties were in the main concerned with the training and supervision of the juvenile officer personnel, with the correlation of the court’s activities with the various agencies and other organizations who work in the same general field, and with procedural matters. These duties covered every phase of the activities of the juvenile court. Accordingly, the factual situation disclosed by this transcript would not sustain the employment of this administrative assistant, hired as he was to do general supervisory work over all the personnel in the juvenile court office, not just those engaged in the hospital, institution, psychiatric, or health clinic used by this court. We are compelled to hold that the employment of this administrative assistant was not authorized by the provisions of § 211.161, supra, and it follows that the respondents should be enjoined from continuing the employment and payment of the administrative assistant.

Thq petition al.so prayed that the respondents be compelled to repay to the city any wrongful and illegal expenditures or, in the alternative, that they be directed to recover such moneys for the city. In consideration of these matters, it first should be pointed out that while the petition states the official position each of the respondents individually holds, the whole sense of the petition is that appellant proceeds against the respondents as a Board. The charter of the City of St. Louis was not introduced into evidence, but we are required to take judicial notice of the provisions thereof. See Missouri Digest, Evidence *®*31. Article XVI of the Charter provides for the Board of Estimate and Apportionment. There is no question here involved concerning the requirements of that Article with respect to a statement of comparative receipts and expenditures, and therefore we will not herein concern ourselves with those provisions. Insofar as the questions raised herein are concerned, § 1 of that Article creates the Board and provides for a record to be kept of its proceedings. Section 2 of that Article requires the head of the various branches of the city government to furnish to the Board what amounts to a statement of the monetary requirements for the coming fiscal year. Section 3 of that Article provides that the Board is to submit to the Board of Aider-men what amounts to a consolidated statement showing the requirements for all the departments and further provides that the taxpayer shall be given an opportunity to be heard in a manner provided by ordinance. There is no contention but what the appellant was given this opportunity to be heard and that he did appear before the Board to contest the expenditure with which we are here concerned. The second paragraph of § 3 of Article XVI of the charter provides, among other things, that the Board is to " * * * annually submit and recommend to the Board of Aldermen a bill appropriating the amounts deemed necessary * * * for that fiscal year for all departments. * * *” That same paragraph, later provides therein that the Board of Aldermen may reduce the amount of any item in this bill except for certain amounts which are fixed by statute, or for certain other amounts with which we are not concerned in the instant case, but that the aldermen may not increase the amount in the bill nor insert new items. The other sections of that Article are not pertinent to the inquiry required by this appeal.

Under the provisions of Article XVI, the Hoard of Estimate and Apportionment is required to act as a sort of clearing house for the budgetary requirements of the various phases of government with which it is concerned. Its purpose is to consider the budget requests as they are submitted to it, and to include those amounts which in the exercise of its discretion are deemed necessary to the proper function of each department in a bill which it recommends to the Board of Aldermen. It has a sort of veto power in the respect that the Board has no authority to increase the amounts recommended by the Board of Estimate and Apportionment, nor to insert new items. However, § 3 of Article XVI specifically provides that insofar as items with which we are here interested are concerned, the Board of Aldermen may reduce the amount contained in the bill recommended by the Board of Estimate and Apportionment.

It is obvious that any action the Board might direct to be taken to recover these moneys must be brought in the name of the City, for these were city funds that the appellant alleges were illegally paid. Nowhere in Article XVI is the Board granted any authority to direct an action to be brought in the name of the City. We cannot compel the respondents to take action to direct the recovery of such moneys when they would not be authorized by the charter to comply with our order. In any event, the principles of unjust enrichment govern the recovery of unauthorized or illegal payment of such moneys. City of St. Louis v. Whitley, Mo., 283 S.W.2d 490, at 1. c. [6] page 493. The application of those principles would seem difficult to justify in the face of this record disclosing the valuable services which the administrative assistant has rendered to the city. It is obvious that these services cannot be returned, and to allow the city to retain the value of these services and at the same time recover the money paid for them would seem to violate the elementary principles upon which such recoveries are based. However, we do not rule that point.

With respect to the prayer that this money be recovered from the respondents, there is no allegation in the petition nor is there any proof that the respondents, as a Board, directed the payment. In the same paragraph of the petition wherein the appellant alleges that the Board “ * * * approved and appropriated * * * ” these moneys, appellant follows that allegation with an allegation that the respondents’ action “ * * * was later approved by the Board of Aldermen which authorised * * *” payment (emphasis supplied). It is obvious from the pleadings, from the pi oof, and from the provisions of Article XVI of the charter, that the respondents as a Board merely recommended the appropriation of these moneys. Under these facts the respondents can not be held liable as a Board. Theirs was not the final determinative or decisive action, but was merely a recommendation. The actual act of authorizing the payment of these moneys and appropriating funds therefor was that of the legislative body of the city, the Board of Aldermen, by the passage of the ordinances introduced into the record.

The judgment should be reversed and the cause remanded with directions to the trial court that a judgment be entered declaring that there is no authority under the provisions of § 211.161, supra, for the employment of an administrative assistant doing the work which this record shows that employee to do in the instant case. The trial court should further be directed to issue its injunction against the continued employment and payment of such person. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment is therefore reversed, and the cause remanded with directions to the trial court that a judgment be entered declaring that there is no authority under the provisions of Section 211.161 RSMo 1959, V.A. M.S., for the employment of an administrative assistant doing the work which this record shows that employee to do in the instant case. The trial court is further directed to issue its injunction against the continued employment and payment of such person.

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

RUDDY, J., not participating.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    Manford CARRIER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1962.
    Cabell D. Francis, Stanford, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., for ap-pellee.
   MOREMEN, Judge.

Appellant, Manford Carrier, was indicted by a grand jury in the Casey Circuit Court for the offense of rape of Barbara Tinsley, a female above the age of twelve years and under the age of sixteen years, appellant being a male person above the age of twenty-one years. He was convicted of having carnal knowledge of Barbara Tins-ley with her consent and his punishment was fixed at confinement in the penitentiary for a period of five years. On this appeal it is asserted that the verdict is flagrantly against the law and the evidence.

The prosecutrix, Barbara Tinsley, lived on a farm in Casey County near the Casey-Lincoln County line. She was fourteen years old on March 3, 1961. On the 11th day of that month she walked down the highway towards the post office at Mid-dleburg. Appellant drove down the same road with his friend, Carlos McKee, stopped the car beside Barbara and asked her if she wanted to ride with them. They talked a while and discovered that they had a mutual acquaintance, Faye Elmore, and apparently an arrangement was made to invite Faye Elmore to join them. Then Barbara went to the post office to see Mrs. Luster whose husband was postmaster. She stayed with Mrs. Luster from about twelve o’clock until three in the afternoon when the post office was closed. It appears that Barbara’s mother had been convicted of a felony and had been paroled to Mr. and Mrs. Luster and that Barbara’s purpose in visiting the post office was to ask the Lusters to go to her mother’s home. Mrs. Luster dropped Barbara off at the lane that, led to her home. In the house Barbara found a note from her mother saying that she had gone to visit a neighbor. She returned to Mrs. Luster and informed her of the whereabouts of her mother. While she was standing there appellant drove up and handed her a note from Faye inviting her to come down to the store. Barbara requested on the back of the note that Faye come up to see her. Appellant departed but soon returned with Faye. Barbara went to the neighbor’s house and asked her mother if she could go with them. She was given permission to go with them for a short time. She returned to the car and they drove down to Napier’s grocery store. There they picked up McKee who had been waiting for them. Then Faye evidently changed her mind and said she wasn’t going. She got out along with two younger sisters who had been collected on the road. There is quite a difference in the stories given by the witnesses as to what happened then. Barbara stated that when she started to get out and had placed one foot on the ground, the McKee boy grabbed her and pulled her back into the car, that she resisted but was forced to remain in the car. Both men denied that this occurred and said she went voluntarily, but Faye corroborated her story.

They went down the road toward Middle-burg and through Yosemite toward Argyle. Barbara stated that they went about a mile beyond an unidentified filling station, turned off on a dirt road and drove for about two-tenths of a mile. There, she said her clothes were removed (she was wearing slacks, blouse and a sweater) and she was raped against her will and under threats of physical harm. She stated they were there about ten minutes. McKee and appellant testified that they did not pull off the main road, but they did admit that they stopped and both got out of the car, stepped back into the woods where each drank a can of beer. It was light, about four-thirty or five in the afternoon and the usual number of cars passed while they were there.

After the stop, they went to Argyle and purchased gasoline and then drove back to Yosemite. Upon being asked if she knew 'any .girls there, Barbara replied that she; knew Rose Phillipi so they drove over to her house and called her out, but while Rose was talking to them her boy friend came by and that seems to have destroyed any chance of a date. Barbara then said she knew Juanita Salyers and they drove to her house where they learned that Juanita had a date for the evening so they soon left. They then returned to Napier’s grocery in search of Faye and were informed that Barbara’s mother and Faye had gone down the road in a car. Barbara told the men that she knew a girl who lived at Liberty by the name of Corman and they drove to Liberty in search of her. They pulled into the court house square and parked in front of Brown’s Grill. The town policeman came over and asked if she was the Tinsley girl and when given an affirmative answer, the policeman arrested the two men.

Soon thereafter at about seven o’clock, at the request of the county judge, Barbara was examined by Dr. Garnett Sweeney. He found that she was not a virgin (Barbara had testified that she was not), that a smear taken from her vagina did not reveal any sperm, and he found no fresh bruises to her vagina or evidence of abuse and no bruises on her body.

Both appellant and Carlos McKee, the other passenger in the car, testified that Barbara joined them voluntarily and then engaged in the search for another girl; that no one touched the prosecutrix or made any threats to her or had intercourse with her and that the only place the car was ever stopped along the highway was when they pulled over, stepped into the woods and drank a can of beer during which time other cars were passing on the highway. The witnesses, Juanita Salyers and Rose Phillipi, the two girls who were visited immediately after the alleged rape, testified that Barbara made no complaint to them of any abuse and that she had asked them to go with her, Carrier and McKee. The city policeman of Liberty stated that he saw nothing unusual in Barbara’s manner when he approached the automobile after they had come to Liberty.

We recognize the well established rule that it is the peculiar province of the jury to determine the credibility of witnesses and to assess the weight to be given to their testimony to the extent that in most cases the jury may believe one witness even though he is contradicted by others, or may believe one set of witnesses to the exclusion of another set. Kennedy v. Commonwealth, 194 Ky. 502, 239 S.W. 796. We have recognized some distinction, however, between the ordinary case and one such as is presented here. It is pointed out in Holland v. Commonwealth, Ky., 272 S.W.2d 458, that in cases of this nature the charge is so easily made and so difficult to disprove that when coupled with natural indignation so often created by the charge itself, jurors are often adversely affected and therefore great care is required in appellate review. When the conduct of prosecutrix as related by her and others is contrary to natural and common rules of behavior, her testimony is carefully scrutinized. In Carter v. Commonwealth, 245 Ky. 257, 53 S.W.2d 521, 522, it was said:

“While it may not be said that the prosecuting witness’ recital as to how the alleged crime occurred is inherently impossible and totally at variance with natural laws, the evidence as to the attending circumstances and her subsequent conduct is such as to render it inherently improbable and to rob it of any probative value or fitness to carry conviction.”

In Holland v. Commonwealth, Ky., 272 S.W.2d 458, 459, where the facts were not detailed in the opinion, the court made this observation:

“The circumstances recited by the girl and the corroborative evidence tend to support the appellant’s contention that the case falls within the class of cases in which it is held that a verdict of guilt of rape will be deemed unsupported- by the proof where the evidence as to the necessary element of force or threatened violence to overcome resistance is so incredible or improbable or so at variance with natural laws or common human experience as to be patently untrue. This rests upon the appellate court’s conclusion that the conviction was the result of passion and prejudice and was not based upon evidence having the quality of legal proof. Muncey v. Commonwealth, 245 Ky. 664, 54 S.W.2d 46; Carter v. Commonwealth, 245 Ky. 257, 53 S.W.2d 521; Weinel v. Commonwealth, 302 Ky. 742, 196 S.W.2d 375.”

Since the time of Lord Hale, who admonished, “it must be remembered that this is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innnocent,” the courts have been disturbed by a situation where a word may be substituted for definite proof of an act. The various states have found different solutions: in some states, by statute, the testimony of the prosecutrix must be corroborated; in some jurisdictions no corroboration is necessary. See 44 Am.Jur., Rape, § 106. In still other jurisdictions, which include this one, the uncorroborated testimony of the prosecutrix may be sufficient to sustain a conviction of rape if the proof is clear and convincing and the surrounding circumstances are such as to indicate the probable guilt of the accused or, at least, to corroborate indirectly her testimony. However, if the story of the prosecutrix is intrinsically improbable or her actions before and after the time of the alleged offense are such as indicate (when considered in the light of ordinary rules of behavior) that the related event did not happen — then the uncorroborated testimony is not sufficient.

First above in this opinion we have stated rather fully the facts préseñted by the evidence. We find no fact that corroborates the simple statement of prosecutrix that she was raped or had sexual intercourse with appellant. To the contrary, the remainder of the evidence' points to the conclusion that the act did not occur.

We believe that the verdict was flagrantly against the evidence adduced.

Judgment reversed.


author: STANLEY, Commissioner.

text:
    Bobby NAPIER, Appellant, v. COMMWONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1962.
    Denver Adams, Hyden, for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STANLEY, Commissioner.

Watt Roberts and his wife, Nannie, lived in a two room house in a remote section of Leslie County. Early in the night of July 30, 1960, according to their evidence, the appellant, Bobby Napier, and Walter “Possum” Howard broke through their door, brutally attacked and wounded both of them with a club and took Mrs. Roberts’ purse containing $190 from a peg in the wall. An indictment charged Napier and Howard with armed robbery. ■. On Napier’.s separate trial he and Howard were positively identified by the victims of the crime as the culprits. There were corroborating circumstances. Napier’s defense was an alibi.

“Armed robbery” is implicitly defined by statute as the commission of robbery by the use or display of a “pistol, gun or other firearm or deadly weapon.” The punishment prescribed is either life imprisonment or death. KRS 433.140. The court, nevertheless, instructed the jury that if they should believe from the evidence beyond a reasonable doubt that the defendant had robbed Nannie Roberts of $190 by putting her “in fear of bodily harm by the use and display of a club or clubs, an offensive weapon or weapons,” they should find the defendant guilty of “robbery by the use and display of an offensive weapon or weapons and fix his punishment at confinement in the penitentiary for 21 years, life or death, in the discretion of the jury.” The verdict, written on the instructions, was, “We, the jury, find him guilty and give him 21 years.” The judgment imposed that penalty as being for armed robbery. That was unauthorized. Thomas v. Maggard, Ky., 313 S. W.2d 271.

It is readily apparent that the instruction was erroneous in permitting conviction of the crime charged if it was committed by the use of an “offensive weapon” rather than “deadly weapon,” and the imposition of a penalty not prescribed by the statute for armed robbery. Riley v. Commonwealth, 278 Ky. 732, 129 S.W.2d 581. The statute fixing punishment for “armed assault with intent to rob” uses the term “offensive weapon” rather than deadly weapon and authorizes a penalty of imprisonment for 21 years or for life or by death. But an “offensive weapon” is not necessarily a “deadly weapon.” Murphy v. Commonwealth, 255 Ky. 676, 75 S.W.2d 341.

As stated, the evidence was to the effect that the defendant had used a club. ■It -was • indefinitely described as being “as long 'as -my .arm” and “as big around.” Further examination described the club as about twelve inches long and two inches in diameter. A proper instruction should have conditioned conviction of armed robbery upon a finding by the jury that such a club was a “deadly weapon.” See Instructions to Juries, Stanley, § 843. Another instruction should have been, in effect, that if the jury should believe from the evidence that the instrument used was not a deadly weapon as therein defined, they could find the defendant guilty of common law robbery under a proper instruction on that crime.

The judgment is reversed.


author: CULLEN, Commissioner.

text:
    Brady SMALL et al., Appellants, v. Hiram J. BAILEY et al., Appellees.
    Court of Appeals of Kentucky.
    April 20, 1962.

      J. C. Cantrell, Huddy, for appellants.
    Fred B. Redwine, Pikeville, for appellees.
   CULLEN, Commissioner.

Brady and Helen Small brought action against Hiram J. Bailey, L. D. May, and the Stone Coal Corporation to recover the value of certain mining equipment alleged to have been converted by the defendants. The court, trying the case without a jury, gave judgment against the corporation for $4303 but dismissed the complaint as to Bailey and May. The Smalls have appealed, contending that judgment should have gone against Bailey and May also.

The court found as a fact that Bailey had converted the Smalls’ property, but concluded that since Bailey in so doing was acting as agent for the corporation (of which he was president) he was not personally liable for the conversion. The court was in error in this conclusion because the law is well settled that an agent of a corporation is personally liable for a tort committed by him though he was acting for the corporation. Pirtle’s Adm’x v. Hargis Bank & Trust Co., 241 Ky. 455, 44 S.W.2d 541. There are numerous cases holding a corporate officer liable for a conversion of personal property by him for the benefit of 'his corporation. See Annotation, 152 A.L.R. 705. ' -

As concerns May, the evidence was only that he was attorney for the corporation and at Bailey’s request he advanced $100 to the corporation in order that Bailey might pay that sum to the owner of the surface of the land on which the mining equipment was located (Bailey being under the impression that the surface owner had acquired title to the equipment by reason of its abandonment by the Smalls). In our opinion this mere lending of money was not a sufficient participation by May in the conversion to render him liable.

To the extent that the judgment dismissed the complaint as to Bailey it is reversed, with directions that judgment be entered against Bailey the same as against the corporation. In all other respects the judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Joseph M. MORRISON, Appellant, v. KENTUCKY BUS LINES, INC., Appellee.
    Court of Appeals of Kentucky.
    June 2, 1961.
    Rehearing Denied May 25, 1962.

      • Raymond C. Arhy, Louisville, for- appellant.
    A. J. Deindoerfer, William O. Guethlein, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellee.
   MONTGOMERY, Judge.

Joseph M. Morrison sued Kentucky Bus Lines, Inc., to recover damages for injuries alleged to have been sustained while riding as a passenger on a bus. It is claimed that the driver “negligently operated” the bus so as to cause appellant “to be thrown and jerked” against a seat. The jury returned a verdict for the bus company. Morrison appeals and urges that: (1) The verdict is contrary to the law and the evidence, and (2) the court did not instruct the jury properly.

Appellant purchased a ticket for Louisville and boarded the bus at Clarkson. The bus was equipped with a row of double seats-on each side of a center aisle. All seats faced the front of the bus. All of the seats were occupied so appellant stood in the aisle about midway back in the bus some seven or eight seats behind the driver. He stood with his left hand holding to the overhead baggage rack and his right hand resting on the top of the seat at his right.

Between Clarkson and Elizabethtown on U.S. Highway 62, a two-lane highway, the bus traveling eastward met a line of cars traveling westward. A westbound vehicle traveling fast suddenly pulled out of the line of traffic into the eastbound traffic lane about two hundred feet from the oncoming bus. The bus driver testified: “I immediately hit the brake, to prevent a head-on accident, because there was no place for that car to go * * He estimated that the speed of the bus was slowed from forty-five or fifty miles to-twelve or fifteen miles per hour before the oncoming car cut back into its proper traffic lane when it was about thirty-five feet away. As soon as the car -moved out of danger, the bus driver ceased to use-, the brakes, shifted the gears, and accelerated the speed of the bus.

Appellant did not see what happened hut said that the bus was "going a pretty .good speed” and “When the bus come to •almost a sudden stop it throwed me forward, •and I was on my feet, and all at once it ■give another jerk and that throwed me over.” Sam G. Mason and his wife testified for appellant. They did not see the •oncoming car. Mason said that the bus slowed down from “the fifties” to “five or ten miles per hour” and started “with a ■lurch forward.” His wife said: “The bus ■stopped very suddenly, and it started up ■with a jerk.” She gave no estimate of the 'bus’ speed except that it was “moving pretty rfast” and “practically stopped dead still.”

The bus driver denied that there was any ■sudden or abrupt movement forward of the bus but said there was a normal increase of ■speed. He described in detail the method •of shifting the four forward gears as •related to the various speeds attained and •their control by a governor.

Three passengers on the bus corroborated the statements of the bus driver. One of the passengers said: “There was no alternative,” and testified that the speed of the bus had to be decreased suddenly in order to avoid colliding with the oncoming car. They all said that the increase in speed was done in a normal manner.

Appellant complained shortly after the ■incident that he had been injured. He testified that his injury was occasioned by a sudden lurch from the quick acceleration of the bus rather than the deceleration. Appellant contends that the court should have instructed the jury on the duties of the bus driver as to lookout, speed, and control and on his “sudden lurch forward.” The court gave instructions which prescribed as a standard “the utmost care exercised by -careful, prudent bus operators.”

Further discussion is pointless since no negligence is shown. The rule is stated in Southeastern Greyhound Lines v. Chumley, 312 Ky. 154, 226 S.W.2d 777, 779, thus:

“The law * * * is, generally, that to establish negligence prima facie, there must be proof that the movement or stopping of the vehicle was, as gauged by the ordinary operation of similar conveyances, unusual and unnecessarily sudden and of such degree of violence that the jury could conclude that it was caused by carelessness or negligence. * * * Ordinary jolts and jerks of a motor bus in starting and stopping are inevitable and among the usual incidents of travel.”

A sudden movement of a bus though unusual does not amount to negligence when it results from an emergency confronting the operator not of his own making. Kopp v. Louisville Taxicab & Transfer Co., Ky., 257 S.W.2d 891. It is incumbent on the claimant to show affirmatively that the movement of the conveyance is unusual, unnecessary, and of such violence as to demonstrate that the operator is negligent. Lyons v. Southeastern Greyhound Lines, 282 Ky. 106, 137 S.W.2d 1107.

At most, appellant’s evidence shows only a sudden stop and start occasioned by the emergency as shown by appellee’s evidence. There is a complete lack of evidence that the stop and start were so unusual, so unnecessary, and of such violence as to constitute negligence on the part of the bus driver. In the absence of an affirmative showing of negligence on the part of appellee’s driver, appellant was not prejudiced by the instructions given or refused.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    Lester GREGORY, Appellant, v. LOUISVILLE TAXICAB & TRANSFER COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1961.
    Rehearing Denied May 25, 1962.
    Armer IT. Mahan, Davis & Mahan, Louisville, for appellant.
    Hubert T. Willis, Louisville, for appel-lee.
   MILLIKEN, Judge.

The trial court granted Lester Gregory, a former employee of the Louisville Taxicab & Transfer Company, a substantial money judgment against the Company for Workmen’s Compensation benefits which it found had accrued under its interpretation of an agreement signed by the parties and filed and approved by the Board and at the same time enjoined Gregory from enforcing the judgment on the theory that the Company had not intended to make such an extensive agreement. Needless to say, both litigants are dissatisfied and have appealed from the portions of the judgment which adversely affect them, respectively. An anomalous procedural situation has arisen from decisions of this Court construing the Workmen’s Compensation Act as will be revealed hereinafter.

The action grew out of injuries received February 28, 1956, by Gregory when he was beaten up by three teenage passengers in the taxicab he was operating for the Company in the City of Louisville. On March 15, 1956, Gregory and the Company entered into an agreement for Workmen’s Compensation benefits on the standard form of the Workmen’s Compensation Board denominated “Agreement As To Compensation” on which it was stipulated that Gregory had suffered a lacerated scalp and skull fracture, and that his probable length of disability was “undetermined.” The Agreement recited that the Company would pay Gregory $27 a week benefits, the maximum amount payable under the Act, from the date of injury — February 28, 1956 — ’“until terminated in accordance with the provisions of the Workmen’s Compensation Law of the State of Kentucky.” The Agreement was approved by the Workmen’s Compensation Board on March 19, 1956. After approximately twelve weekly payments the Company stopped them when Gregory returned to work on April 29, 1956, and Gregory left the Company’s employment a few weeks later in May, 1956. Nearly four years later Gregory filed the present action-in the Jefferson Circuit Court on the theory that the Agreement having been filed with and approved by the Board, had become an award of the Board (KRS 342.-265) and entitled him to the maximum benefits for permanent and total disability.

This type of an agreement is known as an “open” agreement and has been construed by this Court in Katterjohn v. Adams, Ky., 249 S.W.2d 952, and in Cornwell v. Commonwealth, 304 Ky. 182, 200 S.W.2d 286. The effect of those decisions is to compel the employer to get the consent of the Board before stopping payments under such an agreement. In sustaining a judgment for the employee in a factual situation similar to the one in the case at bar, this Court pointed out in Cornwell v. Commonwealth, above, that the judgment thus granted the employee was “subject of course to the right of the appellee (employer) to make application to the Board under KRS 342.-125,” which provides:

“Review by board of award or order. (1) Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud, the board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this chapter, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder.” (Emphasis ours.)

In the light of the nature of the employer’s defense -(stricken by the trial court) that it did not intend to agree to voluntarily make payments except for the period of the employee’s temporary total disability and had not intended the agreement to cover any permanent disability, the trial court should have given judgment for the employee for the accrued compensation, but remanded the case to the Board for a determination of the degree of permanent disability, if any, the employee had sustained. Since the Board has the power under the statute to end the award if it sees fit, the trap of the employer allegedly resulting from the Cornwell and Katterjohn opinions may be escaped to an extent in the proper case through action of the Board on motion of the employer to reopen the award or on remand to the Board as we here direct.

The writer of this opinion believes that the Cornwell opinion is based upon a misinterpretation of the effect of an open agreement such as the one involved in this case, but his colleagues think otherwise.

The judgment is reversed and the case remanded for proceedings consistent with this opinion.


text:
    Conrad COMBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1962.

      Vernon Faulkner, Hazard, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for appellee.
   STANLEY, Commissioner.

The appellant, Conrad Combs, was found guilty of maliciously shooting and wounding with intent to kill Fred Nantz and his punishment fixed at ten years’ imprisonment. He insists the verdict was flagrantly against the weight of the evidence, or, at most, that the Commonwealth’s evidence proved only that he was guilty of the misdemeanor of shooting in sudden affray or heat of passion and the felony instruction should not have been given. Another claimed error is the denial of a new trial on the ground of the discovery that one of the jurors was prejudiced against the defendant and had misled him on voir dire in saying that he would give the defendant a fair and impartial trial.

Combs and his wife ran a restaurant and heer saloon called “Air Port Inn” in Perry County. About nine o’clock on the night of December 8, 1960, Nantz and Johnny Smith went there as customers. Some trivial wrangle, apparently arising from a misunderstanding, arose between Mrs. Combs and Nantz in regard to putting a coin in •a juke box. The spat suddenly flared into violence. She threw an open can of beer in his face, and he retaliated by throwing •and hitting her with an open bottle of beer. Thereupon, the defendant Combs, who was behind the counter, shot and seriously wounded Nantz. According to Nantz, he “scooted down” on the floor and while trying to crawl out the door, Mrs. Combs grabbed his hair, and called upon her husband to shoot and “kill the son-of-a-bitch; he hain’t dead yet.” Combs came around the counter and tried to fire, but his pistol jammed. He then heeded Nantz’s cry, “You needn’t shoot •me no more; you’ve done already killed me.” While this was going on Mrs. Combs was beating him in the face with her fists. This graphic story was corroborated, except in some unimportant particulars, by Johnny Smith.

The defendant Combs testified that he had bad a little previous trouble with Nantz; that on this occasion Nantz precipitated the dispute with his wife and first threw the bottle of beer, splashing it in her hair, before she retaliated with the same liquid missile; that when he looked around he saw Nantz jerk his coat back and pull something bright from under his belt which he, the defendant, took to be a pistol. Combs testified that “in a state of fury I shot him in self-defense.” He denied many of the details of the melee related by Nantz. Mrs. Combs and her niece substantially corroborated the defendant.

There was no evidence that Nantz had a pistol in the restaurant. Police officers found his pistol in his truck, which was parked in a nearby service station.

The appellant contends, as stated above, that the Commonwealth’s proof did not show the shooting was maliciously done, i.e., with premeditation or through enmity or ill will, or was done feloniously, i.e., actuated by a deliberate evil purpose to commit a crime. While that is a common acceptation of the terms, in their legal sense “malice” and “malicious” mean doing a wrongful act by one person against another intentionally or with evil intent without just cause or excuse or as the result of ill will. It is immaterial at what time before the act such determination was formed. Malice may be implied or imputed from the proven act and circumstances. Brown v. Commonwealth, 226 Ky. 255, 10 S.W.2d 820; Risner v. Commonwealth, Ky., 242 S.W.2d 623; Wright v. Commonwealth, Ky., 335 S.W.2d 930. The use of a deadly weapon, not in self-defense, is evidence of malice. Crawford v. Commonwealth, 279 Ky. 224, 130 S.W.2d 17. “Feloniously,” as a term in criminal law, really means done with an intent to commit a crime or wrong, although it is sometimes stated as meaning proceeding from an evil heart or purpose. Ewing v. Commonwealth, 129 Ky. 237, 111 S.W. 352; Taylor v. Commonwealth, 172 Ky. 136, 188 S.W. 1087.

The question of whether an act was committed maliciously and feloniously is ordinarily one for the jury to determine in the light of all the surrounding facts and circumstances. Nichols v. Commonwealth, Ky., 283 S.W.2d 184; Davidson v. Commonwealth, Ky., 340 S.W.2d 243.

The evidence does indicate that the shooting of Nantz by Combs was sudden and in heat of passion and, as he testified, “on the spur of the moment.” Yet, Combs followed the shooting up by going around the service counter and trying to shoot the victim again while he was prostrate on the floor under attack by Mrs. Combs. All the circumstances warranted the jury in finding the defendant guilty of a felony rather than of a misdemeanor, as the jury was authorized to find by an instruction on that offense. We cannot hold the evidence was insufficient to submit the question of guilt of the felony, or that the verdict was flagrantly against the evidence.

The defendant submitted as a ground for a new trial that one of the jurors had previously indicated such bias and prejudice against him as to preclude his having a fair trial. Supporting his own affidavit as to the belated discovery of the fact, the defendant filed the affidavit of Braddox Noble, one of the jurors, reciting that he and another juror, Midas Deaton, were members of the regular panel for the term of court, and they were sitting together in the court room during the progress of a trial of the defendant Combs on a previous day on the charge of grand larceny (of which he was acquitted) and Deaton, referring to the defendant, said, in substance, “I know that boy. I was at a place where he was and passed out drunk, and when I got sober I had lost my watch, and I don't know whether he got it or not, but I believe he did.” As there was no contradiction, the incident and statement must be regarded as true.

The granting or refusing of a new trial generally rests in the sound discretion of the trial court in the exercise of deliberate judgment founded on established principles. A new trial should be granted wherever it reasonably appears that the accused did not have a fair trial, as where substantial prejudice of a juror is shown. Ellis v. Commonwealth, 207 Ky. 162, 268 S.W. 1087; Fletcher v. Commonwealth, 239 Ky. 506, 39 S.W.2d 972. As a general rule, anything which is good cause for challenge for disqualification of a prospective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire. Johnson v. Commonwealth, 311 Ky. 182, 223 S.W.2d 741. Illustrative is where a juror qualified without disclosing that he had formed and expressed the opinion that the accused was guilty of the crime charged. See Miller v. Commonwealth, 203 Ky. 437, 262 S.W. 579; Fletcher v. Commonwealth, 239 Ky. 506, 39 S.W.2d 972. But there are many exceptions to the general rule as was early recognized in Presbury v. Commonwealth, 39 Ky. 203, 9 Dana 203. Basically, the consideration is whether the rights of the accused have probably been prejudiced by concealed impartiality.

“Mere casual remarks or prior expressions of opinion adverse to accused are not alone sufficient to establish such bias as requires a new trial.” 24 C.J.S. Criminal Law § 1446. The text is supported by Chilton v. Commonwealth, 170 Ky. 491, 186 S.W. 191; Brown v. Commonwealth, 195 Ky. 166, 241 S.W. 846; Mills v. Commonwealth, 223 Ky. 165, 3 S.W.2d 183; and Colwell v. Commonwealth, Ky., 320 S.W.2d 116. In the instant case the remark of the juror related to a different kind of offense than that for which he was being tried. It did not imply that he could not give the accused a fair trial on that charge, as doubtless he said he could on voir dire examination. We conclude there was no error in refusing a new trial on the ground stated.

Judgment affirmed.


text:
    Joseph T. GARVEY, Appellant, v. Gertrude BEASLEY, Administratrix of the Estate of George Beasley, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    Rehearing Denied May 25, 1962.

      Harold K. Huddleston, Robert N. Hubbard, Elizabethtown, for appellant.
    Hobson L. James, Elizabethtown, for ap-pellee.
   MILLIKEN, Judge.

The principal question is whether there is evidence of appellant’s negligence.

This action grew out of an automobile accident which occurred in daylight November 29, 1958, on U. S. Highway 31W near the foot of Muldraugh Hill, Hardin County, Kentucky. The highway at this point was constructed of asphalt, had two lanes north and two south separated by a concrete divider two feet wide and six inches high. The two automobiles involved in the accident were driven by Samuel D. Bell and Joseph T. Garvey. George Beasley, a passenger in the Garvey automobile, died as a result of injuries received in the accident and his widow, Gertrude Beasley, as administratrix of his estate, brought this action against both drivers and Carl J. Lish, the owner of the automobile driven by Garvey, to recover damages caused to the estate. A jury trial resulted in a verdict and judgment against both defendant drivers in separate amounts, against Bell in the amount of $10,000 and against appellant, Garvey, in the amount of $5,919. It is from this judgment that Joseph T. Garvey appeals. The lower court gave a directed verdict in favor of defendant Carl J. Lish, and the defendant Samuel D. Bell makes no appeal from the judgment against him.

The accident occurred when Bell’s southbound car skidded and crossed the divider strip into the northbound lane in front of the northbound automobile operated by the appellant. Bell admitted that he lost control of his car, that it was going straight across the northbound lane after it crossed the divider, and that he tried to accelerate its speed in an effort to get off the highway but did not succeed. He did not claim that Garvey’s northbound automobile was traveling at an unreasonable speed, and said he first saw it “a block and a half to two blocks away” before he skidded.

Garvey declared he was traveling between 40 to 45 miles an hour in the eastern or outside lane of the northbound section of the highway, that he did not recall any vehicle immediately in front of him, but that there was a car a short distance behind him. He said he was in the “slow traffic, or keep right” northbound lane, that he did not notice Bell’s on-coming car across the divider strip in the southbound roadway until it had skidded a few feet directly in front of him. He was injured in the collision.

The lone disinterested eyewitness to the collision was driving north 80 to 100 feet behind the Garvey car. He said “he (Bell) slid right into the path of Mr. Garvey’s car,” that there were about two car lengths between Bell’s car and Garvey’s when Bell’s crossed the divider strip into the northbound roadway. He said he did not know .Garvey, that Garvey was traveling at a rate of 45 to 50 miles an hour, because that was the rate he himself was traveling, and “my car was not gaining on him,” that he was able to stop his own car in time to avoid running into the collided cars. He said that Bell’s car had pulled out into the southbound passing lane 10 to 15 feet before it started to skid, and that the collision happened in just a matter of seconds.

On the basis of the evidence offered and thus summarized, we believe reasonable minds could not find negligence on the part of Garvey, nor any opportunity for him to have avoided the collision. Therefore, Garvey’s motion for judgment notwithstanding the verdict should have been granted.

It is not necessary to discuss the Workmen’s Compensation Law questions raised, but see Miller v. Scott, Ky., 339 S.W.2d 941, decided in December, 1960, after the trial of the case at bar.

The judgment is reversed.


author: WADDILL, Commissioner.

text:
    Harold COX, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1962.
    Sidney Baer, Louisville, for appellant.
    John B, Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of the crime of storehouse breaking and was sentenced to prison for two years. KRS 433.190. In seeking a reversal of the conviction it is urged that the court erred: (1) In failing to direct a verdict of acquittal; (2) in allowing the jury to consider incompetent evidence; and (3) in instructing the jury.

Appellant and James Case were jointly indicted. Case pleaded guilty. Upon appellant’s trial Case testified that when he arrived at Shay’s Tavern during the night of October 24, 1960, appellant was inside and motioned for him to come to the side door, explaining “I am robbing this joint.” Case stated that, after entering the tavern, he stole some coins and appellant took a case of liquor. The mother of James Case testified that on the night of the alleged break-in, when she questioned appellant concerning where he had obtained the whiskey he had with him, he told her that he had broken into Shay’s Tavern.

The testimony of the owner of the tavern establishing the corpus delicti, the testimony of Case, and the admission of appellant to Case’s mother of his involvement in the crime is sufficient evidence to authorize a submission of the case to the jury and to sustain the verdict rendered.

Appellant complains that the testimony of the owner of the tavern concerning the identification of a certain bottle of whiskey taken during the break-in was incompetent. We find that each objection interposed by appellant was sustained and consequently there is no adverse ruling to review.

During the interrogation of the mother of James Case the Commonwealth’s Attorney asked her if she were certain that it was the appellant who came to her home during the night of October 24, 1960. She responded “Oh yes, he has been at my house before, he was caught with a load of raffles.” Appellant objected and asked that the jury be admonished. After the requested admonition was given, appellant moved for a discharge of the jury, which motion was overruled. The admonition to disregard the answer insofar as it was not responsive is presumed to prevent any prejudice to appellant and was sufficient to do so in light of the ambiguous nature of the witness’ response. Walton v. Commonwealth, 223 Ky. 393, 3 S.W.2d 764; Whitaker v. Commonwealth, 297 Ky. 279, 179 S.W.2d 448. Under the circumstances presented appellant was not entitled to a discharge of the jury.

Appellant contends that it was error to submit to the jury the question of whether James Case was an accomplice when there was no contradiction of that fact. Since there was evidence, other than the testimony of the accomplice, which of itself would support a finding of appellant’s guilt, the accomplice instruction was not required. Dunn v. Commonwealth, Ky., 350 S.W.2d 709; Combs v. Commonwealth, Ky., 341 S.W.2d 774. We have concluded that the giving of the instruction was not prejudicially erroneous in this case.

Judgment affirmed.


text:
    Marie TAYLOR, Administratrix of the Estate of William Henry Taylor, Deceased, Appellant, v. Keither BLACKBURN, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1962.

      L. D. May, Pikeville, for appellant.
    Friend & Mullins, Pikeville, for appellee.
   CULLEN, Commissioner.

William Taylor, an employe of Keither Blackburn, was driving Blackburn’s truck down a mountain road when the left front door of the cab came open. In endeavoring to close the door Taylor lost control of the truck. It hit a guard rail and Taylor fell out and was killed. His administratrix sued Blackburn for damages for wrongful death on the theory that the truck door was defective and that Blackburn had previous knowledge of the defect. No issue of contributory negligence or assumption of risk was raised, apparently because of the applicability of KRS 342.410. The case was submitted to a jury which returned a verdict for the defendant. Judgment was entered dismissing the complaint and the ad-ministratrix has appealed.

Taylor’s widow and her father were permitted to testify, over obj ection, that on two or three occasions about one month before the accident, when Taylor had brought the truck home at night, they had observed that the left door was wired shut. However, on the objection’s being renewed at the close of the plaintiff’s case the court admonished the jury not to consider this evidence, on the ground that the time of observation was too remote from the date of the accident. The sole contention of the appellant here is that the court erred in giving the admonition.

Had there been evidence that the door came open at the time of the accident because of a defective condition the testimony concerning its having been wired shut a month previous would have been admissible to show knowledge of the defect by the defendant employer. See Coleman v. Freeman, 160 Ky. 57, 169 S.W. 523; Happy-Scuddy Coal Co. v. Combs, 310 Ky. 52, 219 S.W.2d 968. But of the three witnesses who testified concerning the closing of the door by Taylor when he got in the truck to start his trip down the mountain two testified positively that he did not latch the door and was told by a companion that it was not latched, and the other testified that “he pulled it to” but the witness did not know whether it latched and “it could of not latched.”' In view of this testimony the conclusion is inescapable that the door came open because it was never latched and not because of any defect in the latch. Therefore the evidence concerning the previous wiring shut of the door was not relevant.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Earl E. PEERS, Appellant, v. Edgar B. COX et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    Rehearing Denied May 25, 1962.

      Cecil C. Wilson, Louie B. Nunn, Glasgow, for appellant.
    George J. Ellis, Jr., Shelley T. Riherd, County Atty. Barren County, Glasgow, for appellees.
   CLAY, Commissioner.

This action was brought in the circuit court by appellant to have declared void a judgment of the Barren County Court discontinuing a portion of a county road, and to obtain an injunction requiring appellee Cox to remove obstructions. The trial court dismissed the claim on the ground the county court judgment was valid on its face and could not be collaterally attacked.

While this proceeding is in the nature of a direct attack upon the county court judgment, since it was brought in a different court we will treat it as a collateral attack. Appellant alleged and sought to prove the judgment void.

At the outset we are met with a question concerning the extent to which such a county court judgment is immune from collateral attack. This in turn involves the nature of the presumption of validity, about which there is some confusion in our cases. See Potter v. Matney, 165 Ky. 266, 176 S.W. 987; Tarter v. Wilson, 207 Ky. 535, 269 S.W. 715; and Illinois Cent. R. Co. v. Ward, 237 Ky. 478, 35 S.W.2d 863. Without attempting to resolve the apparent conflict between the first two cases cited, we will assume the judgment is immune from collateral attack unless the county court record shows want of jurisdiction. We find that it does.

The original proceeding was initiated by appellee Cox by filing in the county court a petition authorized by KRS 178.070. This authorizes a discontinuance (or closing) of “any county road”. KRS 178.050(1) provides that no county road shall be discontinued unless due notice thereof has been given as prescribed in Chapter 178. Subsection (2) of this statute provides for publication in a newspaper at least once a week for two consecutive weeks “next preceding” the hearing. Subsection (3) of this statute provides that the county road engineer shall file an affidavit with the clerk showing the method used in advertising. KRS 178.070 provides that the county road engineer, with two appointed viewers, shall report in writing at the hearing concerning what inconvenience would result from the discontinuance.

Since this is not an adversary proceeding, the county court acquires jurisdiction to discontinue a county road only when the steps prescribed by the statute are taken. Whether or not strict or substantial compliance is necessary, we do not need to decide. The county court record of this proceeding shows a substantial noncompliance with the provisions of the statutes to which we have referred above.

The petition itself requests the closing of a portion of a county road, which consists of a section adjacent to appellee Cox’s property extending to the center line of the road. The statute does not give the county court jurisdiction to close such portion of a road. While authority may exist to close a section of a county road, the statute contemplates that the entire roadway he discontinued from a beginning to a terminal point. The petition and the judgment on their face show a procedure and an adjudication unauthorized by statute.

Further the county court record affirmatively shows that the county road engineer did not execute the necessary report required by KRS 178.070. In addition, that record contains no evidence that proper notice was given as required by KRS 178.-050(2), or that the county road engineer filed his affidavit as required by KRS 178.-050(3). With respect to the omissions in the county court record, after a long lapse of time it might be proper to presume that the required steps had been taken. See Burchell v. Hammons, Ky., 289 S.W.2d 737. However, in this particular proceeding there was positive and uncontroverted proof that such required procedural steps were not taken.

We are of the opinion the proof taken in this case simply confirmed the lack of jurisdiction in the county court, shown by its records, to enter what is on its face an unauthorized judgment. It is therefore void and the appellant should have been granted the relief for which he prayed.

The judgment is reversed for consistent proceedings.


author: HAMILTON, Justice.

text:
    AMERICAN AIRLINES, INC., Petitioner, v. John L. MILLER and Fay Miller, doing business as Centex Turkey Hatchery, Respondents.
    No. A-8503.
    Supreme Court of Texas.
    May 9, 1962.
    Buck & Buck, by Robert P. Clines, Fort Worth, for American Airlines, Inc.
    Lawrence L. Bruhl, Llano, L. Hamilton Lowe, Austin, for John L. Miller.
    Arthur P. Bagby and John C. Foshee, Austin, for Railway Express Agency, Inc.
   HAMILTON, Justice.

Respondents John L. Miller and Fay Miller, doing business as Centex Turkey Hatchery, sued petitioner, American Airlines, Inc., and respondent Railway Express Agency to recover damages sustained to a shipment of 3,000 turkey poults. In a suit before the trial court judgment was rendered for respondents John L. Miller and Fay Miller against American Airlines, Inc., and Railway Express Agency jointly and severally in the amount of $1010.90. The Court of Civil Appeals affirmed as to the judgment against American Airlines, Inc., and reversed and rendered as to Railway Express Agency. 346 S.W.2d 905. American Airlines, Inc. and the Millers filed applications for writ of error.

The Millers delivered the poults to American in Fort Worth at 8:40 p. m., April 22, 1957, for shipment to the Idaho Poultry Company at Boise, Idaho. At the time American received the poults it issued to the Millers an air-freight uniform air bill reciting:

“Destination Airport City Consignee’s No.
AT PORTLAND, OREGON
Routing: Airline Routing Applies Unless Shipper Inserts Specific Routing Here
* ⅝ * ⅜ * ⅜

It is mutually agreed that the goods herein described are accepted in apparent good order (except as noted) for transportation as specified herein, subject to governing classifications and tariffs in effect as of the date hereof which are filed in accordance with law. Said classifications and tariffs, copies of which are available for inspection by the parties hereto, are hereby incorporated into and made part of this contract.

⅝ JjC 5js ⅝ ⅜ ⅝

No of Pieces Description of Pieces and Contents Weight
30 Boxes Broadwhite Turkey Poults 450#
(Live Baby Poults 100 per box)
Instructions to Carrier
Leave Amon Carter Field via American Air Frt. Arrive at Portland, Oregon airfield — ADVISE Railway Express to pick up, truck direct to Boise, Idaho.”

American carried the poults to Los An-geles, California, where they were delivered to The Flying Tiger Line, Inc., another air carrier, not a party to this suit, at 7:58 a. m. on April 23, 1957. The Flying Tiger Line, Inc., carried the poults to Portland, Oregon, where they were delivered to Railway Express at about 6:30 or 7:30 a. m. April 25. Railway Express took the poults by train to Huntington, Oregon, 387 miles distant, and from there Railway Express took them by truck to Boise, one hundred miles distant.

Within approximately forty-five minutes after the poults were delivered to Railway Express one of its employees said his attention was called to the shipment by the odor from them, and that upon opening the boxes he found lots of the turkey poults already dead and many were in a dying condition. About 1838 poults died before delivery and 600 afterwards.

Plaintiffs’ expert witness testified that in his opinion the cause of the death of the poults was that ‘‘they could have either been too hot or too cold, either one — too hot or too cold * * * or they could have been on the road too long.” He further testified that if the poults had died and were dying in large quantities at the time the Railway Express received them it would indicate that the cause of their death occurred before that time. The trial court found from the evidence that turkey poults are endowed by nature to live without food or water for seventy-two hours after hatching.

In holding American Airlines liable the Court of Civil Appeals said that American contracted for transportation of the turkeys beyond Los Angeles and elected to treat connecting carriers as its agents. With this we cannot agree.

The Court of Civil Appeals correctly held that petitioner is subject to the Civil Aeronautics Act of 1938 as amended, and was required to file its tariff with the Civil Aeronautics Board. 49 U.S.C.A. § 483. As is recited in the air-freight uniform air bill, this tariff became a part of the contract between shipper and carrier. The tariff of American Airlines was introduced in evidence, and contains the following:

“The carrier shall not be liable for loss, damage, deterioration, destruction, theft, delay, default, misdelivery, nondelivery or any other result not caused by the actual negligence of itself, its agents, or employees, acting within the scope of their authority, or not occurring on its own line or in its own service or for any act, default, negligence, failure or omission of any other carrier or any other transportation organization.”

This tariff shows The Flying Tiger Line, Inc., is another carrier adopting the same tariff.

The Court of Civil Appeals, while recognizing the tariff as part of the contract, says that this does not help American Airlines for the reason that when American carried the poults to Los Angeles and there delivered them to The Flying Tiger Line, Inc., for delivery to Railway Express at Portland it adopted The Flying Tiger Line Inc., as its agent to transport the poults to Portland. It cites Gulf, C. & S. F. Ry. Co. v. Hines (Tex.Comm.App.) 250 S.W. 1013; Atchison T. & S. F. Ry. Co. v. Word, Tex.Civ. App., 159 S.W. 375, error refused, and Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167, 31 L.R.A.,N.S., 7. These cases involve railroads as carriers. They are subject to the Carmack Amendment, 49 U.S.C.A. § 20(11, 12), which provides in effect'that a receiving carrier, in spite of any stipulations to the contrary, shall be deemed, when it receives property in one state to be transported to a point in another state, involving the use of a connecting carrier for some part of the .way, to have adopted such other carrier as its agent and to have incurred carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence. Congress has not seen fit to make the Carmack Amendment applicable to airline carriers, so therefore those cases are not in point.

This court, in the case of A. J. Tebbe & Sons Company v. Brown Express, 161 Tex. 456, 341 S.W.2d 642, deals in detail with contracts for transport of goods beyond the facilities of a carrier in cases where the Carmack Amendment is not in force, such as this one. We there recognized (341 S.W.2d page 645) the majority rule in America to be that the mere acceptance of goods consigned to a point beyond the line of the initial carrier is not enough, but the initial carrier’s liability ends when the shipment is delivered to the connecting carrier unless the evidence affirmatively discloses an agreement to carry over the whole route. See: Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167; Michigan Central R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L.Ed. 297; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123, 22 L.Ed. 827; Hunter v. Southern Pac. Ry. Co., 76 Tex. 195, 13 S.W. 190; Gulf, C. & S. F. Ry. Co. v. Jackson & Edwards, 99 Tex. 343, 89 S.W. 968; Michigan Central R. Co. v. Myrick, 107 U.S. 102, 1 S.Ct. 425, 429, 27 L.Ed. 325.

In the instant case we not only do not have any specific agreement that American will carry over the whole route, but the tariff filed by American with the Civil Aeronautics Board says specifically it will not be liable for any act, default, negligence, failure or omission of any other carrier or any other transportation organization. The record in this case discloses that American delivered the poults to The Flying Tiger Line, Inc., in Los Angeles within less than twelve hours after receiving them, and received from The Flying Tiger Line, Inc., a transfer manifest showing that the poults were accepted in an undamaged condition. John L. Miller, one of the plaintiffs below, testified that the poults were delivered in Los Angeles within a reasonable time and that he knew of no negligence on the part of American in its handling of the shipment. We therefore hold that American Airlines is not liable for the damage to the poulis.

In regard to the liability of Railway Express for the damage to the shipment of poults, the evidence is conclusive that whatever happened to the poults to cause the damage must have happened prior to the time they were received by Railway Express. From that time on the evidence shows that Railway Express did everything it could have done to prevent further damage. It is shown that at all times a man who was experienced in the handling of live shipments of poultry was caring for the shipment, and the record shows in detail what he did to try to prevent any further damage. We agree with the Court of Civil Appeals that such evidence exonerates Railway Express from any negligence which may have caused the damage.

We reverse the judgment of the Court of Civil Appeals holding American Airlines liable and render judgment in its favor. We affirm the judgment of the Court of Civil Appeals holding that the respondents take nothing as against Railway Express Agency.

GRIFFIN and SMITH, JJ., dissenting.


author: PER CURIAM.

text:
    Madison RAYBURN, Judge, et al., Petitioners, v. The STATE of Texas, Respondent.
    No. A-8847.
    Supreme Court of Texas.
    April 25, 1962.
    Rehearing Denied May 23, 1962.
    Dow & Dow, M. Leon Kalvort, Houston, for petitioner.
    Will Wilson, Atty. Gen., Austin, L. P. Lollar, Morgan Nesbitt and Edward A. Cazares, Assts. Atty Gen., for respondent.
   PER CURIAM.

Contrary to the decision of the Amarillo Court of Civil Appeals in City of Amarillo v. Adams, Tex.Civ.App., 342 S.W.2d 371 (wr. dis.), the Texarkana Court of Civil Appeals has held that the period for filing objections to the award of the commissioners in a condemnation proceeding as provided in Article 3266, Vernon’s Ann.Tex.Civ.Stat., is not enlarged by the provisions of Rule 4, Texas Rules of Civil Procedure. State v. Rayburn, Tex.Civ.App., 352 S.W.2d 357. We are in agreement with the holding of the Court of Civil Appeals in the present case, because the Rules of Civil Procedure do not operate to extend the time provided by statute within which an appeal may he taken to the courts in a proceeding originally administrative in nature. The application for writ of error is Refused, No Reversible Error.