author: CROSS, Presiding Judge.

text:
    Ethel F. WILLOUGHBY, Plaintiff-Respondent, v. SAFEWAY STORES, INC., Defendant-Appellant.
    No. 24286.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Gene Morris, Rogers, Field & Gentry, Kansas City, for appellant.
    Kenneth H. Taylor, Taylor & Taylor,' Independence, for respondent.
   CROSS, Presiding Judge.

In this action plaintiff sues to recover damages for personal injuries sustained when she allegedly fell down in defendant corporation’s store located in Independence, Missouri. The case was tried to the court without a jury on plaintiff’s pleaded theory that she was caused to trip and fall as a result of defendant’s negligence in maintaining a floor mat on its store premises in a dangerous and unsafe condition. At the conclusion of plaintiff’s evidence, defendant filed a motion for judgment which the trial court denied. Defendant declined to go forward with any evidence and stood upon its motion. Thereafter the trial judge found the issues in favor of plaintiff and gave her a judgment in the sum of $750.00. This appeal by defendant results.

In a single point defendant contends that the trial court erred in refusing its motion for judgment “because plaintiff’s evidence failed to make a submissible issue of defendant’s negligence” in that (a) plaintiff’s evidence fails to establish the existence of an unsafe condition on defendant’s store premises, and (b) even assuming the presence of such condition, plaintiff’s evidence does not establish that defendant had actual or constructive notice thereof.

It is suggested by plaintiff that in ruling this assignment we must consider the evidence in the light most favorable to her and give her the benefit of all reasonable inferences to be drawn therefrom. The rule plaintiff urges us to follow is not applicable in appellate review of cases tried by the court without a jury, although it is universally applied when the question arises in cases tried by a jury.

Our determination of the appeal issues presently at hand is governed by Civil Rule 73.01(d), V.A.M.R. which mandatorily provides that “The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature”. “In doing so we shall review the record de novo, determine the credibility, weight and value of the testimony and evidence, and arrive at our own conclusions of the facts based on the entire record”. Mueller v. Larison, Mo.Sup., 355 S.W.2d 5. And, while ordinarily the appellate court defers to the trial court’s opportunity to see and hear the witnesses and judge their credibility, there is no occasion here for so doing because there is no conflict in the testimony. See Mueller v. Larison, supra.

The testimony of plaintiff and her son Earl Willoughby, who testified on her behalf, warrants the following statement of facts and circumstances material to the appeal issues: On a snowy, wet, slushy afternoon in Mid-January, sometime between 4:00 and 4:30 o’clock, plaintiff, accompanied by her son, went to defendant’s store to purchase groceries. She finished shopping, and as she walked from the check-out stand toward the exit door she fell. Her only claim as to the cause of her fall is that she tripped on or stumbled over a wrinkle in a rubber mat on the floor.

According to plaintiff’s statement of her experience as a regular customer in the store, when weather conditions were “wet or snowy or slushy outside”, the store management would put a rubber mat or mats on the floor extending “longways” from the front entrance door and running along an area extending between the plate glass store front and a row of four check-out stands which were located about eight or nine feet from the store front. So placed, the mat would be parallel to the store front and the check-out stands and it would be in such position that persons entering the front door would walk along upon it in going around the check-out stands to approach the general shopping area, and they would walk across its width, which was about to 3 feet, in leaving the check-out stand to proceed to the exit door.

On the afternoon in question, both the weather conditions and the placement of the mat were as above described. Plaintiff saw the mat when she entered the store and necessarily walked along or alongside it in order to obtain a grocery cart and start her shopping. It was a thin rubber mat about 2or 3 feet wide and was just like a lot of others she had seen in public places where the public enters. The lighting was adequate, and plaintiff had no trouble seeing inside the store.

Plaintiff was preceded through the checkout stand by her son who had picked up a large bag of groceries plaintiff had purchased and walked toward the glass store front and in the direction of the exit door. Then plaintiff, carrying a small sack of articles, started out of the check-out stand to follow him. As she did so, she glanced ahead of her, saw the mat and “knew it was there” as it had been on other occasions under like weather conditions. She didn’t see anything out of the ordinary with regard to the mat or anything that looked dangerous, or any wrinkle in it. Under these conditions she “started to walk to the door” and “stumbled and fell * * * clear down on * * * (her) knees and kind of over”.

Plaintiff testified that she knew she had stumbled over something and that as she got up she looked to see what she had stumbled over and “seen this wrinkle in the mat”. She stated, “Well, there was a wrinkle somewhere in it. There was some obstruction that I stumbled over”. “ * * * near the edge of this rug” which was a little over a foot from the check-out stand. She described the wrinkle as being about an inch high.

On cross examination plaintiff repeated that the only time she saw a wrinkle in the mat was after she had fallen and stated that it was perfectly open and obvious to her when she then looked and saw it and that she had no difficulty at all seeing it. She admitted she did not know if the wrinkle was in the mat before she fell or if it just formed in the mat when she tripped. She rejected the possibility she could have gotten the toe of her shoe underneath the mat.

The testimony of Earl Willoughby, insofar as it relates to his general movements in the store, is accurately reflected in the foregoing portion of this statement of facts. There is nothing in his testimony to show the condition of the mat prior to plaintiff’s fall and he claims no knowledge bearing on the subject. He stated, “I don’t even recall seeing it (the mat) until after the accident”, and agreed that he “didn’t know anything about its condition until after she fell”. At that time he noticed the mat and saw that “part of the mat was up — wrinkled or scuffed — not to the middle, and it wasn’t to the end — (but) on one end more or less ■ — -a place on the rug that it was pulled up from the floor”. He testified he didn’t know how or when the wrinkle was caused, who caused it, or any circumstances in connection with its cause.

The duty owed by the occupier of premises to a business invitee is well stated by the Supreme Court in Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623, quoting from Happy v. Walz, 358 Mo. 56, 213 S.W.2d 410, as follows:

“The ‘owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons— they using due care — for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation’ ”.

Plaintiff’s case is bottomed on the principles of law found in the foregoing quoted paragraph. In particular, in order to establish a valid claim against defendant, it was primarily incumbent upon plaintiff to establish, as the very supporting foundation of her case, that defendant’s store premises were in an unsafe condition. In Wilburn v. Southwestern Bell Telephone Company, Mo.App., 382 S.W.2d 49, a slip and fall case, the court recognized such necessity in the following language:

“But whatever may be the category in which a particular case may be , classified, it is elemental that in a case such as this the plaintiff must establish as the very foundation of his case, ' * * * before issues relating to the proprietor’s breach of his duty of care can be reached, that the floor on which he fell was, as a matter of fact, dangerously slippery * * * ’ ”.

The immediate question is whether plaintiff has sustained her incumbent burden of proof to support her pleaded allegation that the floor mat was in an unsafe condition by adducing a preponderance of credible evidence to show the presence of a wrinkle in the rubber mat prior to and at the time she stumbled on it and fell. There is nothing in plaintiff’s own testimony that can be considered as direct proof of that fact. She testified that she saw the mat on the floor when she entered the store, and knew it was there before she started to leave the store. The lighting was adequate and she had no difficulty seeing. As she started toward the door from the check stand, she glanced ahead and saw the mat hut didn’t see anything out of the ordinary with regard to it, or anything that looked dangerous and did not see any wrinkle in the mat. It is her unequivocal admission that the only time she saw a wrinkle in the mat was after she had fallen and that then it was perfectly open and obvious to her. The testimony of Earl Willoughby is no more probative of the alleged unsafe condition than is plaintiff’s, since he disclaims all knowledge of the mat’s condition — particularly as to any wrinkle in it — prior to plaintiff’s fall.

We recognize that the existence of the wrinkle in the mat prior to plaintiff’s fall, as an essential element of her case, may be established by circumstantial evidence which need not have the quality of absolute certainty. Green v. Ralston Purina Company, Mo.Sup., 376 S.W.2d 119. However, proof by circumstantial evidence must establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn, Frazier v. Ford Motor Company, 365 Mo. 62, 276 S.W.2d 95, “and must rise above the stature of guesswork, speculation or surmise”. Green v. Ralston Purina Co., supra.

Under these rules it is our view that the circumstances shown by plaintiff’s evidence are not sufficient to form a basis for us to infer, as the more reasonable probability, that the wrinkle was in the mat prior to her fall. Under the evidence it is at least equally probable that the mat was wrinkled by some force when she “stumbled and fell”. We are unable to reach the conclusion desired by plaintiff except by “guesswork, speculation or surmise”. As the triers of the fact issues in this case, we have no more right to base our findings upon those considerations than a jury has in arriving at its verdict.

It is therefore our separate finding that plaintiff did not sustain her burden to establish that defendant’s store premises were in an unsafe condition by showing that the wrinkle was in the mat before she fell. For that reason, we necessarily rule that she did not make a submissible case on the issue of defendant’s negligence and that the trial court erred in refusing defendant’s motion for judgment. In reaching this conclusion we have duly considered cases cited by plaintiff but do not find them in point because of their factual divergence from the instant case.

In view of our ruling that plaintiff has not shown that an unsafe condition existed in defendant’s store, it has become pointless to discuss the second phase of defendant’s submission — the question whether plaintiff’s evidence established actual or constructive notice of the alleged unsafe condition.

The judgment is reversed.

HOWARD, J., and GREENE, Special Judge, concur.

BLAIR, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth WINETEER and Bertha Wineteer, Plaintiffs-Respondents, v. J. W. KITE and Norma Lee Kite, Defendants-Appellants.
    No. 24257.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Jack H. Denny, Glasgow, W. F. Daniels, Fayette, for appellants.
    Raymond C. Lewis, Jr., David L. Knight, Smith & Lewis, Columbia, William B. Nivert, Jr., Glasgow, for respondents.
   CROSS, Presiding Judge.

This action was instituted by plaintiffs Wineteer, husband and wife, as a suit for a declaratory judgment against defendants Kite, also husband and wife. Plaintiffs sought the court’s declaration that a covenant contained in a sales contract under which they had sold defendants their interest in a supermarket was not binding upon them as an agreement not to compete directly or indirectly with defendants for a specified time in a specified area. In the alternative, and in the event the court adjudged the covenant to be valid and binding upon them as a “non-competition” agreement, plaintiffs asked the court to declare that the effect of such agreement did not prohibit them from completing construction of a mercantile building they had planned, and renting it to a third party for occupancy as a supermarket.

Defendants filed answer asserting the validity of the noncompetition agreement and praying declarations directly counter to those requested by plaintiffs. Defendants also filed a cross petition praying the court to enjoin plaintiffs from erecting a building for sale or lease to any person for use in conducting a competitive grocery or supermarket business or otherwise engaging in the operation of a grocery or supermarket business, directly or indirectly, for a period of ten years, and within 25 miles of Glasgow, Missouri.

The essential facts of the controversy are established by admissions in pleadings, stipulations of fact, documentary evidence and oral testimony, and are here set out. Plaintiffs came to Glasgow, Missouri, in 1940 where they engaged in the grocery business until in September, 1958, they “closed up” their grocery store. At about the same time they remodeled another building they owned in Glasgow (part of which they had acquired in 1951 and part in 1958) and leased it to Paul.M. Lowther and Mary J. Lowther, his wife, for occupancy as a grocery store, which the Lowthers operated until January, 1963. Plaintiff Bertha Wine-teer performed some service for the Low-thers as a cashier in their store in the latter part of 1958 and during part of 1959. Likewise, plaintiff Kenneth Wineteer was employed by the Lowthers as a stock clerk during part of 1959. During the time of their employment by the Lowthers, plaintiffs took no part in the management, control or operation of their business. In November, 1959, plaintiffs purchased a restaurant business in Glasgow and. operated it under the name of “Wineteers’ Cafe” until July, 1960.

On January 7, 1963, plaintiffs and the Lowthers as first parties entered into a written agreement with defendants as second parties, whereby the former agreed to sell and convey to the latter their respective interests in the building, fixtures, equipment and stock of merchandise comprising the “Glasgow U. S. Supermarket” — same being the grocery business the Lowthers had been operating since November, 1958, in the building they had leased from plaintiffs. Pursuant to this agreement plaintiffs duly conveyed the store building and certain of the store fixtures and equipment owned by them to defendants and the Lowthers conveyed to them the remaining portion of the store fixtures and equipment, together with the stock of merchandise. In turn, and as consideration for these conveyances, the defendants paid plaintiffs and the Lowthers the purchase price sums which they were respectively entitled to receive under the terms of the agreement, took immediate possession of the business, and have operated it continuously to the present time.

The written agreement above described contains the following quoted paragraph:

“The party of the first part, Paul M. Lowther and Mary Josephine Lowther hereby covenant and agree that they will not compete with second parties, directly or indirectly, within a radius of 25 miles of Glasgow, Missouri for the ensuing ten years. The first parties, Kenneth and Bertha Wineteer likewise agree not to compete directly or indirectly with second parties within a radius of Glasgow, Missouri of 25 miles for the ensuing ten years”.

Since 1947 plaintiffs have engaged speculatively in the purchase and sale of real estate in Glasgow. Their transactions include the purchase of five or six business buildings and some seven to ten houses. They would “spend some money on them and fix them up a little bit and rent them for awhile and sell them”. In January, 1964, plaintiffs purchased about 106 acres of land located on Highways 5 and 240 about two blocks outside the city limits of Glasgow. They planned and commenced construction of a building thereon to house a small shopping center which would include space for a supermarket. Plaintiffs intend to lease this portion to “someone who is going to be engaged in the grocery business”, but have not yet determined whether they will be paid “by monthly rent or by a percentage of the gross (sales) or by some other arrangement”.

After defendants learned of these plans, they went out to the building site where preliminary grading was being done and informed plaintiffs to the effect that they “couldn’t lease the building — for a supermarket” because of “this contract — (they) —had signed”. Following this challenge of plaintiffs’ right to construct and lease the building as they had planned, plaintiffs filed this suit to effect a judicial determination of the question before proceeding further with the project.

After making extensive findings of fact, the essential portion of which generally conforms to the foregoing statement of facts and is virtually undisputed by the parties, the trial court rendered its declaratory judgment decreeing: (1) that the provision in the contract of sale between the parties that plaintiffs would not compete directly or indirectly with defendants in the grocery supermarket business within a radius of 25 miles of Glasgow, Missouri, for a period of ten years is a “valid, legal, binding and enforceable agreement on which plaintiffs — are bound”, and (2) that “the actions of the plaintiffs in purchasing a tract of land near Glasgow and grading same coupled with the admitted purpose and intention of erecting a new building thereon and renting or leasing said new building to some unknown person or persons for the operation of a grocery store or supermarket on unspecified terms at a rental based upon an unspecified percentage of the gross receipts of said grocery store or supermarket do not constitute a violation of the agreement of plaintiffs not to compete directly or indirectly with defendants”. It was the further judgment of the court that defendants’ prayer for in-junctive relief be denied and that the costs of the action be taxed in equal shares against plaintiffs and defendants. Notwithstanding the judgment is in part adverse to the interests of plaintiffs they have made no complaint of it. Defendants prosecute this appeal.

Defendants still assert, as the sole appeal issue in controversy, that plaintiffs by constructing a proposed building and leasing it to a third person for occupancy as a grocery store or supermarket would violate their covenant not to compete with defendants. On this premise the defendants charge the trial court with error in ruling to the contrary and in refusing to enjoin plaintiffs from so constructing and leasing such a building.

Since this is a non-jury case, it is our duty to review it de novo on both the law and the evidence as in suits of an equitable nature. Rule 73.01(d) V.A.M.R. It will not be necessary to defer to the trial court on any questions of credibility of witnesses because the determinative facts are not in dispute. See Willoughby v. Safeway Stores, Inc., Mo.App., 397 S.W. 2d 748 and Mueller v. Larison, Mo.Sup., 355 S.W.2d 5. The cited rule further admonishes that the judgment shall not be set aside unless clearly erroneous.

Preliminarily defendants urge that this case should be ruled under general principles of equity which is “reluctant to permit a wrong to be suffered without remedy” and which “will not sanction an unconscionable result merely because it may have been brought about by means which simulate legality”, citing Weaver v. Jordan, Mo.App., 362 S.W.2d 66.

From plaintiffs’ standpoint, our attention is directed to the background of legal authority that trade-restricting covenants are not favorites of the law and are to be strictly construed in favor of the covenantor, Prentice v. Rowe, Mo.App., 324 S.W.2d 457, and that restrictions on the free alienation of land are likewise strictly construed, as the Supreme Court held in Kerrick v. Schoenberg, 328 S.W.2d 595.

Fundamentally, this appeal controversy will be resolved by determining the intention of the parties as expressed in the language of the contract, the covenant in question. That provision will be considered according to the plain, ordinary and usual meaning of the words and phrases it contains, as there is nothing in the record to indicate that any language was used in a legal or technical sense. See Liberty Storage Co. v. Kansas City Terminal Warehouse Company, Mo.App., 340 S.W.2d 189. “All mercantile contracts ought to be interpreted according to their plain meaning, to men of sense and understanding, and not according to forced and refined interpretations which are intelligible only to lawyers, and scarcely to them,.” Vol. 12 Am. Jur., Contracts, Sec. 226, p. 745.

Observing the foregoing rules, the only understanding we are able to derive from the words “(plaintiffs) agree not to compete directly or indirectly with second parties” is to the effect that the parties intended to contract generally that plaintiffs would not engage in the grocery or supermarket business in competition with defendants. There is no evidence suggesting that the parties considered or discussed the question of what acts or enterprises would constitute competition or would amount to a violation of the covenant. There was no suggestion or effort made by them to amplify it by any further provision. No restriction against leasing was requested by defendants. The parties were content to accept the agreement, phrased as it was, in general, unspecific terms. Therefore, we conclude that they entered into the agreement in contemplation only of such restrictions upon competition by plaintiffs as the law would impose under the terms of the covenant in accordance with such factual circumstances that might arise. “The question of what facts will constitute a breach of contract is one of law to be determined by the court * * * ”. 17A C.J.S. Contracts § 630, p. 1266.

Neither plaintiffs nor defendants claim that this case is ruled by any decided Missouri case. Our independent research does not disclose Missouri authority proximately in point. Consequently, recourse to the decisions of other jurisdictions which have considered the question here presented is necessary to determine it.

Defendants suggest that the “closest” Missouri case appears to be Weaver v. Jordan, Mo.App., 362 S.W.2d 66, wherein the sellers of a restaurant business, after executing a noncompetition agreement, proceeded to buy property on the same street, erected a building thereon, leased it to third parties for use as a restaurant, bought and owned the restaurant equipment used, served as employees in the new business, and effectively managed it. In addition to rental the sellers also received salaries as employees and a share of the profits equal to 10% of the gross receipts. Relying on the foregoing and other supporting facts, the Springfield Court of Appeals stated that the sellers only “pretended to lease this property”, stigmatized the “lease” and related activities as a “sham”, and ruled that “plaintiffs (sellers) were actually engaged in and operating a restaurant business in violation of the restrictive clause”. The Weaver case is so factually disparate with the instant case that it cannot be considered as supporting authority for defendants’ position.

Defendants cite and rely principally upon Dowd v. Bryce et al., 95 Cal.App. 644, 213 P.2d 500, 14 A.L.R.2d 1329, wherein the plaintiff sold land and a grocery and liquor business to defendant. The sales contract contained a covenant not to engage in a similar business and also an agreement expressly barring the sale of any land in the restricted area to a purchaser contemplating a business of the same nature. In an action for a declaratory judgment the question was presented to the court whether plaintiff’s covenant would be violated by his leasing of other property he owned within the restricted limits to a third person for use in establishing a liquor business in competition with defendants. In deciding the case the appellate court stressed that the provision against the sale of the land to a purchaser contemplating the operation of a business in competition with defendants, although possibly invalid as a restraint on alienation, was to be considered together with other pertinent provisions of the sellers’ covenant in ascertaining the intention of the parties. Although it was clearly obvious to the court that sales of land were expressly barred by the covenant and that the lesser act of leasing could have well been implied to be a prohibited act, the court did not choose to make its determination on that basis. Instead, it reached the conclusion that the parties did not intend that plaintiff would be permitted to lease his property for the purpose of competition on the independent ground that such lease constituted indirect competition.

On its face the Dowd opinion appears to be supporting authority in defendants’ favor. However, the decision of the court, founded as it is on the basis of competition instead of the clearly expressed covenant restriction against selling, has been criticized in 14 A.L.R.2d 1333, Annotation, Contract Not to Compete — Lease, by editorial comment reading in part as follows:

“There can be hardly any doubt that the decision in Dowd v. Bryce * * * is correct under the circumstances. The inclusion in the restrictive covenant of the provision against selling other property to future competitors shows the intention of the parties as to the scope of the prohibited activities clearly. It is more difficult, however, to justify the decision- on the ground that the lease amounts to indirect competition by the lessor. While the arguments advanced by the court in favor of this viewpoint are of considerable force, the decision seems to go further in restricting the seller in his business activities than most cases involving similar situations. * * * Thus, it has been held generally that there is no breach of the covenant where the cove-nantor merely lends money to a person engaged in a similar business, or where the covenantor sells land to another who erects a building thereon for the purpose of carrying on the business. On the other hand there is a breach of the covenant where the covenantor engages in the business as a partner, organizes a competing corporation, or otherwise engages in a similar business under corporate form, or takes active interest in the encouragement of the business in other ways.
“Without endeavoring to lay down any general principles it may be suggested that only such conduct by the covenantor constitutes a breach of the agreement which amounts to an active participation on his part in the running of the competitive business even though this activity is conducted by indirect means.”

We have found only one instance in which the Dowd case has been approved or followed as authority on the specific question here considered. In the Ohio case, J. D. Nichols Stores v. Lipschutz, 120 Ohio App. 286, 201 N.E.2d 898, the court adopted the reasoning of Dowd and also held that a seller of a business violates his agreement to refrain from competition, per se, and without any other act on his parti by leasing other premises for purposes of a similar business. In its effect this holding amounts to an extension or redeclaration of the Dowd case ruling and would be subject to the same critical examination that the Dowd result has undergone.

Defendants also cite Langenback v. Mays, 207 Ga. 156, 60 S.E.2d 240, where the sellers of a tourist camp agreed not to conduct a competing business on adjoining land owned by them. Later, however, they rented those premises to a purported lessee, their own daughter, who took with notice of the restrictive agreement and operated thereon a tourist court business. The court granted injunctive relief against the lessee on the ground that her operation constituted violation of the specific agreement entered into by the landowners, equally binding upon their lessee who took with notice that they would not use the land for competitive tourist camp purposes. The injunction was not granted on the basis of a general non-competition covenant. The case is not in point. Additionally defendants cite C. H. Barrett Co. v. Ainsworth, 156 Mich. 351, 120 N.W. 797, and Amsterdam v. Marmor, 125 Mise. 865, 212 N.Y.S. 300. These are not cases in which leases are involved as subject matter and are not otherwise in point.

Authority favoring plaintiffs’ side of the case is much more abundant. At least five cases reported from sister states hold unequivocally that the leasing of property by a vendor to a competitor of the vendee does not of and in itself violate a covenant not to compete. In Ericson v. Jayette, 149 Fla. 82, 5 So.2d 453, decided by the Supreme Court of Florida, the sellers sold and conveyed their restaurant business by a bill of sale containing a lengthy, extensive and very restrictive covenant not to engage, directly or indirectly, in the restaurant business in the county for a period of ten years. After the sale the vendors leased a building which they owned to a third party who operated a restaurant business therein. The evidence established that the restaurant was owned and managed by the tenant. No participation by sellers was shown. An injunction sought by the buyers was denied on the ground that a mere leasing was not a violation of the covenant.

In McKeighan Wachter Co. v. Swanson, 138 Wash. 682, 245 P. 10, affirmed on rehearing, 141 Wash. 694, 250 P. 353, the owner of a garage business sold it to the buyer and covenanted that he would not reenter such business in the town of its location for a period of five years. He thereafter erected another building across the street and leased it to his son as a location for a garage, and also loaned him a sum of money in order that he might start such business. On conflicting evidence it was held that the seller was in no manner connected with the business and derived no profit from it. On these facts the Supreme Court of Washington held that the covenant was not violated, either by the leasing of the building or the loaning of the money.

And, in Houston Transfer and Carriage Co. v. Williams (Tex.Civ.App.), 201 S.W. 712, Tex.Com.App., 221 S.W. 1081, the sale of a transfer company was effected by the owner who transferred the “good will” of the business and covenanted that he would not engage in a similar business in Houston. Subsequently, his wife, as his sole heir and legatee, leased a stable building he had owned to third persons who competed with the buyers and were also permitted to use a telephone number formerly, used by the seller. On final appeal the Texas Commission of Appeals reversed and remanded the cause on other and unrelated grounds but affirmed the ruling of the appellate court that the covenant was not breached by the leasing (or by the permitted use of the telephone number). The court stated:

“With reference to the assignment complaining of the violation of the good will covenant, it is observed that the bill of sale contains no restrictive clause binding defendant in error not to lease the property for a competitive business; neither does it contain a restrictive clause preventing the use of the telephone number. Their rights are to be measured by the terms of the written contract, * * *.
“Plaintiffs in error seek to give the term ‘good will’ such signification as to include a restriction on the part of defendant in error to lease the premises at 1604 Oak street for a competitive business, and also to prevent the use of the telephone number at that point by the lessee. We do not think that the term is comprehensive enough to include such restrictions. The mere purchase of a good will is insufficient, in the absence of an express covenant, to restrict a party in the enjoyment of a right which he has not bargained away. Had plaintiffs in error desired the restrictions mentioned, they should have secured them by positive agreement.”

This case is cited, approved, and extensively quoted from in the late case of Lewis v. Stuart, Tex.Civ.App., 351 S.W.2d 372, decided in 1961.

In Management, Inc. v. Schassberger, et al., 39 Wash.2d 321, 235 P.2d 293, the vendors of a laundry and dry cleaning business covenanted not to engage in that business directly or indirectly for a period of five years in Yakima, Washington. Mrs. Anne Schassberger, one of the covenanting vendors, later acquired certain real estate and leased it to others under terms which required that the premises be used for the conduct of a dry cleaning and laundry business. Management, Inc., the buyer, sued Mrs. Schassberger and other defendants, alleging a conspiratorial violation of the restrictive covenant and praying injunctive relief. On a finding that the evidence failed to show that Mrs. Schassberger was engaged in the dry cleaning or laundry business or that she had any interest therein, the trial court dismissed the action as to her. In so doing the court relied upon Mc-Keighan Wachter v. Swanson, supra. The Supreme Court of Washington affirmed the dismissal with the statement that the McKeighan Wachter case “is directly in point”.

Of considerable antiquity, but, in our opinion, of commensurate respectability, is the case of Bradford v. Peckham and another, 9 R.I. 250, decided in 1869 by the Supreme Court of Rhode Island. Holding that the vendor of a business and its attendant good will was not precluded from leasing other property to another person who might carry on the same business, the court used this language: “Nor can we find any decided case where a person who sells a good will is prevented from leasing other property he may own in the neighborhood to another person who may carry on the same business, provided there is no collusion, and the lessor has no interest in the business”. In 1920 this case was cited and relied upon by the court in Houston Transfer and Carriage Company v. Williams, supra.

The persuasive effect of the five cases noted immediately above, all expressly holding that leasing in and of itself is not a violation of an agreement to refrain from competition, is materially reinforced by the greater weight of judicial decision in cases arising under analogous situations of fact. It is generally held that there is no breach of the covenant where the covenantor merely lends money or advances credit to a person engaged in a similar business; where he only erects a building on land and conveys the property to another person for competitive purposes ; or where he is employed by a competitor in a subordinate capacity such as clerk or other inferior servant, and such employment is not rendered in management or control of the business or amounts to participation therein, or in any manner creates an effect injurious to the covenantor. See 17A C.J.S. Contracts § 327(4), pp. 278-279, for a concise statement of the foregoing general rules. By way of contrast, the same authority, in the same cited paragraph, lays down general guide lines as to what acts constitute a breach of the covenant in this language: “There must be such a participation by the covenantor in the conduct of the business as to constitute engaging in it or as otherwise to come within the meaning of the particular covenant. * * * Ordinarily there is a breach where the covenantor engages in the business as a partner, or as principal, conducts or controls the business for another as manager or in a similar capacity, takes an active interest in the encouragement of the business, organizes a competing corporation, or otherwise engages in a similar business under corporate form”.

We do not accept the Dowd case as reliable authority to support defendants’ appeal contention. It is not in point on the facts; it has been criticized by standard authority for its implication that all leases are violations of good will covenants; it is in conflict with at least five clear decisions to the contrary which stand undisturbed by judicial criticism; furthermore, it is in conflict with principles of law generally observed by courts in determining whether, under the circumstances of a particular case, there has been such an active participation by the vendor in the operation of a competitive business as to constitute a breach of his agreement to refrain from competition. Nor does J. D. Nichols Stores v. Lipschutz, supra, transcend its parent case (Dowd) as acceptable authority for reasons we have already stated.

It is our view that the massive weight of authority, part of which is incorporated in this opinion, supports plaintiffs’ submission that the naked acts of erecting a building and leasing it to person who will compete with their vendee do not, per se, amount to a violation of their covenant. Such is our ruling on the issue. It necessarily follows as our conclusion that defendants have not sustained their appeal burden to demonstrate that the judgment is clearly erroneous.

Let us emphasize that this decision is a declaration of legal rights premised upon and applicable only to a hypothetical state of facts which do not presently exist, but repose only within the minds of plaintiffs as a matter of future intention. In contemplation of activity in accordance with their plans, we specifically hold that plaintiffs are legally entitled to finish construction of their building and lease it as a location for a grocery store or supermarket to some undetermined third person for a rental as yet undetermined, to be paid either by a specified flat sum, or on the basis of a percentage of gross receipts, or on some other basis not yet determined,— only if and so long as plaintiffs refrain from disparaging the good will of their ven-dees by any act or conduct amounting to an active participation in the operation or management of the competitive business as defined by the terms of this opinion and by the law generally. It is necessarily our concomitant conclusion that defendants are not entitled to injunctive relief.

In the event plaintiffs should exceed the limits of action permitted by this decision and participate in some fashion in the operation of their tenant’s business or engage in some scheme, or in concerted action with that person or with others, to circumvent the covenant or violate the good will granted by it, nothing contained in this opinion is intended to limit the right of defendants to institute further judicial proceedings for appropriate legal relief.

As a separate point plaintiffs urge that the cost of a transcript of the evidence should be specifically taxed against defendants. The facts are that defendants originally filed an abbreviated transcript which omitted all of the oral evidence. Thereafter plaintiffs secured the preparation of and filed an additional transcript containing the oral evidence, for which defendants, as appellants, have refused to pay. Plaintiffs argue that under Civil Rule 82.12 it was defendants’ responsibility to cause the evidence to be included in the transcript, absent agreement by plaintiffs, and that the cost thereof, if taxed against defendants, should include the cost of the supplemental transcript, unless the court finds that plaintiffs were unreasonable in requiring that the evidence be included.

We observe that both plaintiffs and defendants made use of the supplemental transcript by references in their respective briefs to the testimony it contains. Additionally, the supplemental transcript was of utility to the court in arriving at its understanding of the transactions which gave rise to the suit, and of the issues generally. Under these circumstances it is our finding that the plaintiffs did not unreasonably cause the transcript of the evidence to be filed. Accordingly, we tax the cost of the additional transcript, as well as the costs of this appeal generally, against defendants.

Subject to interpretation in accordance with this opinion, the judgment is affirmed.

HOWARD, J., and CLEVENGER, Special Judge, concur.

BLAIR, J., not participating.

      . See 1 A.L.R.3d 778, Annotation, Rendering Financial or Other Assistance to Another as Breach of Covenant not to Compete.

      . Hebert v. Dupaty, 42 La.Ann. 343, 7 So. 580; Simmons v. Johnson, La.App., 11 So.2d 710; Huddleston v. Mariotti, 143 W.Va. 419, 102 S.E.2d 527.

      . See 93 A.D.R. 121, Annotation.


author: BLAIR, Judge.

text:
    TEXTILE DISTRIBUTORS, INC., a Corporation, Respondent, v. ROADWAY EXPRESS, INC., a Corporation, Appellant.
    No. 24272.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      Carl E. Laurent, Kansas City, for appellant.
    William B. Teasdale, Kansas City, for respondent.
   BLAIR, Judge.

Textile Distributors, Inc., Kansas City, Missouri, bought a shipment of Ivy League pants, approximately 600 dozen pairs, from Blue Bells, Inc., Luray, Virginia. The merchandise was packaged in 30 separate cartons, and was delivered by Blue Bells to Roadway Express, Inc., a common carrier, operating in interstate commerce, and delivered by it to Textile in Kansas City. A bill of lading was issued and delivered by Roadway. The bill was proved by parol evidence without objection from Roadway. No claim was made or suggested that the bill bore any notation of any visible damage to the shipment at the time Roadway accepted it from Blue Bells for transportation to Textile. At the trial it was established that the bill had long since been returned by Textile to Roadway at Roadway’s request. Roadway did not produce the bill at the trial and a finding was warranted that the bill was still in its possession. The inference from these facts is reasonable and strong that the bill bore no notation by Roadway of any visible damage to the shipment when it was delivered by Blue Bells to Roadway at Luray. Otherwise Roadway, we think, certainly would have exhibited the bill and the notation of damage at the trial.

Six days later the shipment was delivered by Roadway to Textile in a damaged condition. Textile claimed 44 pairs of pants were missing from the shipment. It valued them at $2.16^4 per pair, or a total of $95.33. Subsequently, after conversations and correspondence between Roadway and Textile, Roadway sent Textile its check for the precise $95.33 Textile was claiming for the lost pants. Roadway did not object to the testimony on this aspect of the case, and its counsel expressly assented to the introduction of the check in evidence. Textile refused to cash the check for it claimed an additional $250.00 as damages to the cartons and the pants delivered. Textile’s vice-president testified, “Well, it was obvious that it (the shipment) had been mashed. Something heavy must have been placed on it. Of course I did not see that. But it had been mashed, the cartons were busted, especially at the corners, and, they were steel strapped, so that the bundle didn’t come open, but the corners had been bursted, and the merchandise in there — it was in boxes and they had been mashed and crushed”. He stated that all 30 cartons were in this damaged condition. Roadway’s own representative testified: “All these 30 boxes were * * * in a bad condition, with the steel bands loose and all the cartons were crushed” and “torn”. He stated that the pants had originally been “neatly folded” into the cartons and properly packaged. In his report to Roadway he stated: “Damage (was) of such nature that it could have been noticed when shipment was delivered” to Roadway at Luray for transportation to Textile.

Textile’s vice-president testified that all of the merchandise had to be reworked: “We had to buy new boxes for the pants, we had to have the pants pressed, we had the expense of packing them into individual boxes so we could ship them to the stores, because the original boxes were crushed”. He stated he had been in the general type of business operated by Textile about 35 years, and he “very definitely” could “make a determination after looking at these damages” of the reasonable cost of repairs. The reasonable cost of pressing the pants, purchasing new boxes and repacking the pants in them was $250.00.

Textile prayed for damages for $95.33 for the pants lost and $250.00 for pressing those actually delivered and repacking them, or a total of $345.33 plus costs. The cause was adjudged by the circuit court without a jury. Judgment went for Textile for $386.34, which included the sums prayed for and $41.01 interest. Roadway appeals.

A single question is presented: Did Textile carry its burden of proof by establishing, by sustantial evidence, that the shipment from Blue Bells destined to Textile was in good condition when delivered by Blue Bells to Roadway at Luray? The burden of showing that the merchandise was delivered to Roadway in good condition rested on Textile. Cudahy Packing Co. v. Atchison, T. & S. F. Ry. Co., 193 Mo. App. 572, 187 S.W. 149. 6 Mo.Digest, Carriers

Both parties are agreed that substantial evidence must establish delivery of the shipment to Roadway in good condition and its arrival at Textile in a damaged condition. Both are agreed that the shipment was in bad condition when it was delivered by Roadway to Textile at Kansas City.

Ruling this controversy, we bear in mind that one or all of the elements required to be established in a civil suit may be proved by circumstantial evidence, as well as by direct evidence. Of course, the circumstances proved must be such that necessary facts to support the verdict reasonably follow from the circumstances, excluding guesswork, conjecture and speculation as to the existence of those necessary facts. Heinold v. Muntz T. V. Inc., (Mo.) 262 S.W.2d 32, 12A Mo.Digest, Evidence,

While the burden rested on Textile to show that the shipment delivered to Roadway was in good condition, it is generally held that the issuance by a carrier of a bill of lading or shipping receipt, without a notation thereon of visible damages or defects in the shipment, creates the presumption that, as far as ordinary inspection discloses, the shipment is free from visible damage or defects, and, to that extent, is in good condition. 14 Am.Jur.2d Carriers, Section 619; 13 C.J.S. Carriers § 254; Schraeder v. Robinson, 78 Cal.App.2d 328, 177 P.2d 788; L. Frank & Co., Inc. v. Illinois Cent. R. Co., La.App., 43 So.2d 88; Goldberg v. New York, N. H. & H. R. Co., 130 Me. 96, 153 A. 812; Adams Exp. Co. v. White, 132 Md. 626, 104 A. 110; Sprotte v. Delaware, L. & W. R. Co., 90 N.J.L. 720, 101 A. 518; Sumrell v. Atlantic Coast Line Railroad Co., 152 N.C. 269, 67 S.E. 585; Brown v. Southeastern Exp. Co., 192 N.C. 25, 133 S.E. 414; Schwalb v. Erie R. Co., 161 Misc. 743, 293 N.Y.S. 842; Beresin v. Pennsylvania R. Co., 116 Pa.Super. 291, 176 A. 774; Louisiana Southern Ry. Co. v. Anderson, Clayton & Co., 5 Cir., 191 F.2d 784. This rule is stated in Silver Fleet Motor Express v. Prebul (Tenn.) 7 Fed. Carrier Cases 2264: “The ultimate question, then is: Does the failure of the freight bill to note any evidence of damage to the crate or contents constitute a prima facie showing that the shipment was in good condition when it was transferred to defendant at Chicago? * * * It would seem to us most natural that the freight bill would have taken cognizance of any apparent damage to the shipment. * * * The burden is, therefore, upon the defendant to show that the crate was in bad condition at that time (delivery to carrier) since it had the right, if not the actual duty, to refuse to accept the shipment unless properly crated and packed.”

This seems a reasonable and fair principle and we adopt it as the law of this case. Obvious damage to the 30 cartons of pants present when they arrived at Textile, would have been just as obvious when they were delivered to Roadway at Luray, if that damage was existent at that time. Roadway’s issuance of a bill of lading, when the shipment was delivered to it at Luray, without any notation of visible damage thereon, warrants a finding that there was no such damage at that time. Necessarily, it follows, then, that the loosening of the metal straps binding the cartons and contents, and the mashing, crushing, bursting, and tearing of the cartons, must have occurred while they were in transit in the custody of Roadway. We note that no one claims that the damage occurred after delivery to Textile.

Our reasoning derives strength, we think, from the fact that Roadway had the right to refuse to accept this shipment if, at Luray, it was in the damaged condition discovered on its delivery to Textile and, under normal circumstances, we believe it must be plain that any carrier would either refuse such a shipment, or note on the bill of lading any visible damages or defects to protect itself. 13 Am.Jur. see Carriers, Section 247; Silver Fleet Motor Exp. v. Prebul, supra.

We acknowledge the existence of rulings dealing with instances where the damage to a shipment is not visible on ordinary inspection and bills of lading without notations of damage are held to be insufficient evidence of delivery of the shipment to the carrier in good condition. Cudahy Packing Company v. Atchison, T. & S. F. Ry. Co., supra, 187 S.W. p. 152. For obvious reasons these rulings are not applicable to the present controversy, for here the damage to all 30 cartons was not only visible on sight, but glaring. We notice also Robinson v. Railway Express Agency, Inc., Mo.App., 329 S.W.2d 242, cited by Roadway, which does not reach, much less determine, the principle we apply in this case.

Roadway’s argument that there was no evidence that the pants were in good condition at Luray, must be brought into perspective. No one claims that the pants on delivery to Textile were soiled, unseamed, ripped or torn, or in any measure not in good condition or exactly as ordered, except Textile’s vice-president testified that, in his opinion, they required reworking by pressing. This is the sole damage to the pants claimed in this suit. We believe Roadway’s argument is untenable.

It will not do to argue that the damages to the cartons established only that the cartons themselves were damaged. In effect, this is what Roadway undertakes to do. We believe the damage to the cartons establishes more. All of the cartons appeared to have had “something heavy” placed on them in transit, and they were “torn”, “mashed”, “crushed” and “busted”. Originally, according to Roadway’s investigator, the pants had been “neatly folded” into the cartons. After the trial court found that the cartons were shipshape at Luray, it clearly had the right to find that the tearing, mashing, crushing and breaking of the cartons, together with the loosening of the metal straps binding them, disarranged and disarrayed the pants “neatly folded” into the cartons. Such a finding would merely result from drawing a reasonable inference from the sufficient circumstances and facts with which the court and parties dealt at the trial. Witting v. St. Louis & San Francisco R. Co., 101 Mo. 631, 14 S.W. 743, 10 L.R.A. 602, Heck v. Mo. Pac. Ry. Co., 51 Mo.App. 532, Blackmer & Post Pipe Co. v. Mobile & O. R. Co., 196 Mo.App 139, 190 S.W. 1032.

Nevertheless Roadway argues that there was no evidence that the pants had been pressed before shipping at Luray. Whether they were pressed there or not is to us not decisive. They arrived at Textile in cartons with the metal straps loose and the cartons “torn”, “mashed”, “crushed” and “busted”. The pants originally “neatly folded” into the cartons required, as Textile’s vice-president gave his opinion, pressing to render them salable to Textile’s customers.

We think there is nothing in this record to convince that he was testifying to the need for a routine pressing of pants, delivered in a shipment in good condition, and to us it is quite clear that he was saying that the damage to the shipment disarranged and disarrayed the pants so much that they required pressing for salability. To us it was enough for Textile to establish these circumstances and facts to justify a reasonable inference by the trier of fact that the gross mishandling of the shipment by Roadway, and it seems gross to us, necessitated pressing the pants. An opposite finding, on this record, seems wholly unreal, and we reject it.

As to the 44 pairs of pants claimed by Textile to have been lost, Roadway says: “The shipper, perhaps, did not ship all of the pants, which can be assumed as easily as anything else * * * ”. We do not agree that one inference is as strong as the other, or that the inference of loss is not the stronger and supported by substantial evidence. As observed, after arrival of the merchandise at Textile, there were conversations and correspondence between Roadway and Textile concerning the pants claimed to be lost. Textile claimed the value of the pants was $2.16$4 per pair, or a total of $95.33. Eventually Roadway sent Textile its check for the precise $95.33 it was claiming for the lost pants. Roadway entered no objection to this testimony and its counsel expressly assented to the introduction of the check in evidence. Assuming that these conversations and this correspondence, together with the transmittal of the check to Textile for the exact amount it claimed for the lost pants, were objectionable as an offer in compromise, the testimony went in with the assent of counsellor Roadway and it is in no position to raise such an objection in this court to its own admission against interest. Offers in compromise are not rejected by the courts because they have no probative force, but because their reception by courts in evidence ordinarily would discourage out of court settlements of controversies. Certainly these transactions, however they may be characterized, have strong probative force, and since they are in the record, we find them to be substantial evidence of the loss of the pants, and this argument of Roadway fails. 27 Mo.Dig., Trial

After the presentation of all of the evidence recited, including the bill of lading with no notation of visible damage or defects, and the evidence of damage to the shipment on arrival at its destination, Textile’s prima facie case on this record was established. Thereafter the failure of Roadway to go forward with any evidence to refute Textile’s prima facie case, and it failed to do so, justified the trial court in determining the issues for Textile, unless a review by us under Civil Rule 73.01, V.A.M.R. discloses that the trial court’s judgment was clearly erroneous. Buddy v. Wabash, St. L. & P. Ry. Co., 20 Mo.App. 206, Cudahy Packing Co. v. Atchison, T. & S. F. R. Co., 193 Mo.App. 572, 187 S.W. 149; 6 Mo. Dig., Carriers

We have reviewed this case upon both the law and all of the evidence as in suits of an equitable nature. Bearing in mind that we must not set aside the judgment unless it is shown to be clearly erroneous, and giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses, our review has convinced us that the judgment of the trial court was on all grounds for the right party and it is affirmed.

All concur.


author: MAUGHMER, Commissioner.

text:
    CITY OF INDEPENDENCE, Respondent, v. Clarence STEWART, Appellant.
    No. 24278.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.

      George M. Hare, Keith Wilson, Jr., Independence, for appellant.
    S. Ralph Stone, City Counselor, Kenneth H. Taylor, Asst. City Counselor, Independence, for respondent.
   MAUGHMER, Commissioner.

The defendant, Clarence Stewart, was convicted for violation of an ordinance of the City of Independence, Missouri. The specific charge was that he “did willfully, wrongfully and unlawfully interfere with officers McPherson and Nicholson while they were performing their duties by resisting arrest”. After a hearing in municipal court he was found guilty and a fine of $50 was imposed. Upon appeal to the circuit court he was again adjudged guilty. Punishment was there assessed at a fine of $25 and costs. There was no jury. Defendant has appealed to this court.

There is before us a transcript of the circuit court trial. Officers McPherson and Nicholson and the defendant testified. We shall summarize generally the occurrences which finally culminated in this prosecution and then refer particularly to the testimony of each witness. The difficulty began on October 17, 1964. Defendant admittedly had spent a portion of that day drinking in a tavern. He came to his home at 1223 South Delaware Street, Independence, Missouri, in a taxicab and being without funds, requested his wife to pay the fare. She did so. The record does not reveal in detail what happened immediately thereafter. Defendant says he and his wife had an argument. Mrs. Stewart did not testify but she did call the police, reported that her husband was misbehaving, was mistreating her and requested that officers be sent to their home. Patrolmen McPherson and Nicholson responded to the call and went to the residence of defendant and his wife. Mrs. Stewart came to the door and invited them inside. The officers entered the house. There are two versions as to what transpired thereafter — one as told by the officers and the other as recounted by defendant. We shall present both.

The patrolmen said that upon their entry they found defendant lying on a couch, watching television. Mrs. Stewart, in the presence of defendant, told the officers “her husband had been drinking, came home without his automobile, and that he had made bodily threats against her”. Officer McPherson said defendant “got up from the couch, came over, placed his hand on my chest and started to shove me”, that he was talking very loud and “cussing both officers”, that he asked if we had a warrant and ordered us to leave; that he grabbed “ahold of my lapel” and started “shaking me very hard and very violently”. McPherson then pushed defendant across the room and back onto the couch, told him he was under arrest and resumed his interrogation of Mrs. Stewart. A few minutes later he “heard a scuffle behind my back”, turned around and saw defendant “scuffling” with the other officer.

Patrolman Nicholson corroborated the testimony which we have herein attributed to McPherson and in addition made these statements: “We proceeded to put him back on the couch and told him to sit there and that he was under arrest for assault on Officer McPherson”. Defendant then got very violent and “grabbed” Nicholson “using awful profanity”. Nicholson stated: “At that time I did apply force to him and told him that he was arrested, the second time, for the interference with me, and I walked him out the front door”. Mr. Stewart was taken to the police station in handcuffs.

In his testimony defendant stated: “I just got too much to drink, had a taxi take me home, had the wife come out and pay the bill, went back in, and I pulled my shoes off, and laid down on the couch”. He said he went to sleep and the next thing he knew the officer jerked him up off the couch and said “What’s going on here?”. Mr. Stewart asked if “they had a warrant” and asked them to leave, but said he never “cursed, grabbed them or shook them, or pushed them around”. He said: “They had me charged with two — had me charged with disturbing the peace. The officer here and the other officer there, they signed a complaint theirself”.

Mrs. Stewart apparently relented from her desire for her husband’s arrest and prosecution. At least she never appeared at police headquarters to sign a complaint, nor did she testify for or against him at his trial.

Defendant on appeal says the Court erred “In finding the defendant guilty of interfering with officers by resisting arrest, due to the fact there was no lawful arrest”. Appellant makes five factual assertions, all undisputed, which he says lead to the legal conclusion that there was no lawful arrest. He says, (1) No complaint was filed by Mrs. Stewart; (2) The officers had no warrant for any arrest; (3) Defendant asked if the officers had a warrant; (4) Defendant requested the officers to leave his home, and (5) Defendant was charged and convicted solely of “interfering with officers — by resisting arrest”.

Our attention is invited to the recent case of State v. Parker, Mo.App., 378 S.W.2d 274, 281, where the generally accepted rule is again restated that an officer “has the right to arrest without a warrant for a misdemeanor only when the misdemeanor is committed in his view or presence”. In the Parker case the defendant was charged with and convicted of common assault — a misdemeanor. The Springfield Court of Appeals reversed the conviction and discharged the defendant, holding that where a deputy sheriff — who was the arresting officer and also the prosecuting witness — was about to engage in an affray, not as sheriff, but as a private citizen, the action of defendant in taking him by the arm, not accompanied by force or threat, did not constitute an assault, but rather only mere restraint. The Parker opinion further declares that an arresting officer must give notice “to the person sought to be arrested so as to reasonably convey to that person the knowledge that arrest is sought and intended”. The Court further expresses the belief that “in Southern Missouri the words ‘son-of-a bitch’ when used in an angry manner are considered as ‘fighting words’ and a breach of the peace likely to produce a more violent breach”. We are inclined to enlarge that area so as to include Northern Missouri.

In the case before us the officers were not out on a private mission (as in the Parker case) but appeared in response to a' call from defendant’s wife for protection and help. They were met at the door by Mrs. Stewart, who identified herself as the person who had called, and invited them to come inside. They were in this house, which the evidence shows was jointly owned by Mr. and Mrs. Stewart, lawfully by her invitation. They were on the premises as invitees, and not as either trespassers or interlopers.

According to the testimony of the officers, which the trial court apparently believed and accepted, and which we must likewise accept on appeal unless it seems to us to be wholly beyond belief, they were attempting to interview Mrs. Stewart as to the details of her complaint, when defendant “grasped the coat lapels and shoved and pushed, scuffled with and cursed” not only one but both of these officers. Defendant said to them “God damn you dirty son-of-a-bitches, you can’t come in here”. This cursing included the phrase classified in the Parker opinion as “fighting words”. The officers then “put him back on the couch and told him to sit there and that he was under arrest for the assault on Officer McPherson”. It appears that defendant himself knew and understood he had been arrested, since he testified that they arrested him for disturbance of the peace. Defendant continued his violent misbehavior and was handcuffed for transportation to the police station.

We agree with the generalities as • to the law of arrests as asserted by defendant. We agree with these quotations from 6 C.J.S. Arrest § 6c(2) (3) (4), which are incorporated in defendant’s brief:

“Ordinarily, a peace officer cannot arrest, without a warrant, for a misdemeanor which was not committed in his presence or view”.
“A mere suspicion or belief that a misdemeanor has been committed is insufficient to warrant an arrest without a warrant”.
“An officer cannot arrest, without a warrant, a person whom he merely believes committed a misdemeanor”.

We agree, too, that a citizen may legally within reasonable limits, resist an unlawful arrest, although we do not advocate the practice.

In the case before us defendant was never formally charged with assault or peace disturbance. However, (1) The officers testified that they arrested defendant for assault on Officer McPherson and told him so; (2) Defendant knew he had been put under arrest for his fracas with the officers. He thought it was for disturbance of the peace; (3) While the arrest was for a misdemeanor and not for a felony, it was for a violation committed not only in the presence of the arresting officers but upon their persons, and was therefore lawful; (4) Defendant “resisted this arrest” and “interfered with the officers” to such an extent that force was required to remove him from the house and into the automobile and handcuffs were utilized to keep him submissive. The question is not was he prosecuted for assault or peace disturbance, but was there a lawful arrest and if so, did defendant resist the officers in making that arrest?

It would serve no useful purpose to enter into a discourse upon the following somewhat provocative subjects — (a) every man’s home is his castle — it may be a poor hut, which the storm and the rain and the wind and the cold may enter, but the minions of the state may not enter without a warrant; (b) the wise and proper procedure for police officers to follow when harrassed wives call for help and protection in view of their well known proclivity to later on “forgive and forget” their spouse’s misbehavior; or (c) the current popular subject of officiousness and police brutality which is a too common modern complaint when officers attempt to enforce the law, maintain order and preserve the peace — publicly or domestically.

We believe it is sufficient here to say that there was substantial, credible evidence offered to show that: The officers were in the home as invitees and not as trespassers, defendant in their presence was guilty of assault upon them and of peace disturbance, he was arrested and was told that he was under arrest for an assault just committed upon Officer McPherson. Defendant resisted his arrest by acts “scuffling and struggling” and orally by cursing. We believe the court was justified and authorized under the evidence in concluding that defendant was lawfully arrested for assault; that he resisted such arrest and, therefore, was guilty as charged.

Defendant on appeal has made no attack on the ordinance or the information. His only assignment is that “There was no lawful arrest”. We rule this point against him under the law and under the evidence.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

CROSS, P. J., HOWARD, J., and DAVID R. CLEVENGER, Special Judge, concur.

BLAIR, J., not participating.


author: PALMORE, Judge.

text:
    Arthur WEATHERS, Jr., Appellant, v. ESTATE of Charles MORRIS et al., Ruth C. Morris and Frank A. Garlove, Co-executors, Citizens Fidelity Bank & Trust Co., The Fabric Shop, Inc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 12, 1965.
    J. J. McCarthy, Louisville, for appellant.
    Norman A. Curtis, Jerry A. Lloyd, Louisville, for appellees.
   PALMORE, Judge.

The appellant, Arthur Weathers, Jr., suffered a broken arm when he slipped and fell on a rain-wet sidewalk on South Fourth Street in Louisville. His suit against the owners and lessee of the store building in front of which the accident took place resulted in a directed verdict and judgment for the defendants, and he appeals.

Weathers was employed as a waiter at a restaurant on Fourth Street between Market and Main Streets. On November 13, 1961, he had left the restaurant at about 2:00 P.M. and was walking southward along the west sidewalk on Fourth Street between Market and Jefferson Streets with the intention of taking a bus at Walnut Street. It was raining hard, and although he did not have an umbrella or raincoat and was getting wet he says he was proceeding at a normal pace. He had walked this route many times in all kinds of weather. He had on a new pair of shoes with leather soles and heels, which he had bought a week or so before and had worn four or five times. As he passed in front of the Fabric Shop at 218 South Fourth Street, the premises owned and occupied by the respective appellees, and stepped on a section of terrazzo surface his right foot slipped and he fell on his left side and arm. His vision of the surface at this point was clear and the way was unobstructed. There was no foreign substance or material on the sidewalk other than water from the rainfall. Though he had passed this way before, Weathers does not know whether he had ever walked on the terrazzo area in front of the Fabric Shop.

The sidewalk at the place of the accident is nine feet wide. The entrance of the Fabric Shop is feet wide. It is paved with terrazzo, and this surface extends in the shape of a half-moon a distance of about four feet from the building line toward the curb, its arc lacking some six inches of reaching the center line of the sidewalk as a tangent. Inlaid within the semi-circular area is the word “Kinney’s,” evidently the name of a former occupant of the store building. The remaining portion of the sidewalk consists of weathered concrete. From photographs introduced in evidence the terrazzo section also appears to be well weathered, as it is lined by several narrow cracks and shows other marks of time. It was there at least as long ago as 1938, when the property was first leased to the Fabric Shop.

According to the expert testimony of a civil engineer the half-moon area of terrazzo that forms a part of the public walkway slopes outward and downward from the building line to the circular line at which it joins the concrete surface. He said there is a city regulation that the cross-slope of a sidewalk shall not exceed a quarter-inch per foot and that this particular segment “slopes slightly more; a little more than one-fourth of an inch per foot, a little less than three-eighths of an inch per foot,” being in some places as much as three-quarters of an inch per foot. Whether such regulation was in force when it was constructed, he was unable to say with any assurance because he did not know when the terrazzo was laid. Nor did he say whether the alleged regulation is an accepted criterion of what is considered a safe slope and what is not.

The principal thrust of the engineer’s testimony was directed at the use of an untreated terrazzo surface for outside walking. It was his opinion that because of its finer and smoother texture it is much more dangerous when rained upon than is an ordinary concrete surface. He further stated that terrazzo can be etched with acid or treated with a liquid composition to decrease the danger of slipping, but there was no evidence of such treatment in this instance. Asked on cross-examination whether terrazzo tile and marble are not commonly used for flooring, he replied as follows: “Terrazzo tile is not generally used in exterior sidewalks. There are many of them in Louisville, but it is not general.”

The argument for Weathers relies to a considerable extent on Schmidt v. City of Newport, 184 Ky. 342, 212 S.W. 113 (1919), and for the appellees on Curtis v. Traders National Bank, 314 Ky. 765, 237 S.W.2d 76 (1951).

In the Schmidt case a general demurrer against the petition had been sustained, and on appeal it was held that the allegations stated a cause of action. With respect to the negligence of the defendants, the City of Newport and a theater company, those allegations were that the company had paved a portion of the public sidewalk in front of its theater with tiling “of a slippery, smooth, glazed, and glossy surface and rendered said sidewalk unreasonably unsafe and dangerous for public travel by pedestrians, and especially so during and immediately after it had rained, or while said tiling sidewalk was wet; that said sidewalk * * * was negligently constructed and maintained * * * at an unreasonably unsafe and dangerous grade, and was rendered unreasonably unsafe and dangerous for public travel by pedestrians,” etc. '

This court was never called upon to determine whether the actual facts of that case measured up to a cause of action, but the following excerpt from its opinion on the pleadings sets forth the principle it regarded as applicable:

“It would appear that the original construction was upon such heavy grade and of such a smooth and slippery and slick surface as rendered the pavement inherently dangerous to pedestrians. The mere fact that a pavement is constructed of smooth tile is not sufficient in itself to render it so dangerous and unsafe as to fix liability upon a municipality for injury to persons falling thereon, nor to even raise a presumption that such walks are inherently dangerous. Indeed, we are inclined to the opinion that a tile pavement is as safe as a concrete pavement, and in addition is quite as durable and much more beautiful. But if it is glazed and so highly polished as to he slick and slippery, it may become inherently dangerous,” and thus render the responsible parties liable. Schmidt v. City of Newport, 184 Ky. 342, 212 S.W. 113, 115 (1919).

In the Curtis case a lady slipped and fell on the marble floor of a vestibule leading into the defendant’s bank. It was raining outside and, in the words of the opinion, “she was caused to fall by the wet, slippery, marble floor in the vestibule where the water had been tracked and blown in by the wind when the outer door was opened.” Affirming a directed verdict and judgment for the defendant, the court went on to say:

“It is quite generally held that there is no liability to a customer who slips because of water, mud, etc, in such places and is injured by the fall, the floor being properly constructed and not inherently dangerous. * * * The floor of the vestibule was standard and customary, without incline or defect. The absence of such inherently dangerous condition * * * takes the case out of such as Schmidt v. City of Newport * * *. Negligence in the maintenance of premises, like in all other cases, is to be measured by the danger to be apprehended to persons of average intelligence who are exercising ordinary care and prudence for their own safety. Accepting the predicate that the bank was chargeable with knowledge that water on the floor made it slippery, since that is known to everybody, yet we must likewise accept the proposition that it is a common, usual and proper arrangement and that it is not foreseeable that a patron, coming into the vestibule during a shower of rain, will not also take cognizance of the slippery condition. Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S.W. 22.” Curtis v. Traders Nat. Bank, 314 Ky. 765, 237 S.W.2d 76, 77 (1951).

For Weathers it is contended that two circumstances ■ distinguish this from the Curtis case: (1) Curtis did not involve a public right-of-way; and (2) in Curtis there was no slope to the floor of the vestibule, whereas in this instance the terrazzo area in front of the entrance to the Fabric Shop had a slope varying from one-half to three-quarters of an inch per foot. The first of these is a distinction without a difference. Certainly the duties of a commercial establishment to customers within its premises are no less than those it owes the passing public, even if it be conceded (though we find it unnecessary in this case to decide) that the maintenance of a special type of surface in or on the public way constitutes a servitude for which it is responsible.

With regard to the slope, although the engineer testified that it was “slightly more” than the degree permitted by the nebulous city regulation he mentioned (but which was not otherwise produced in evidence), we are impressed by the complete absence of any other suggestion that a slope of half to three quarters of an inch per foot in a sidewalk is unreasonable, unusual or dangerous. Indeed, he did not say so himself. Obviously if a surface were inherently dangerous by reason of a slippery composition or finish, any slope would aggravate the danger, and a sharp slope could render hazardous a surface that might otherwise be safe. But we do not have here a situation that fits the allegation in Schmidt v. City of Newport, 184 Ky. 342, 212 S.W. 113 (1919), to the effect that the sidewalk was “constructed and maintained * * * of a slippery, smooth, glazed, and glossy surface.” Everyone is familar with terrazzo; everyone knows it is hard and smooth; no one needs to be warned that it is more slippery wet than dry, and in either case more slippery than some other types of surfacing material. But this particular section of terrazzo had been walked on by passing crowds of Louisville’s busiest shopping district for 25 years or more. It was neither glazed, glossy, nor polished. Whatever threat existed in the form of its slight incline and wet condition was, in our opinion, readily observable to any ordinary pedestrian who chose to walk on it.

As suggested in Curtis v. Traders National Bank, 214 Ky. 765, 237 S.W.2d 76, 77 (1951), conceding that those responsible for the condition of the sidewalk were chargeable with knowledge that water would make it slick, since that is known to everybody, it is equally expectable that a user of the sidewalk in the rain, wearing new shoes with leather heels (which, as any man who ever has worn them knows, themselves make the footing more hazardous on a hard surface), would also take notice of the circumstances and exercise a commensurate degree of care for his own safety.

We conclude that the evidence was not sufficient to authorize a finding of negligence on the part of the defendants and that a directed verdict was proper.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Eugene DECKER, Curtis Duvall, Jerome Duvall, Chester Van Meter and Opal Decker, Appellants, v. GLASSCOCK TRUCKING SERVICE, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Jan. 28, 1966.

      Hatcher & Lewis, J. T. Hatcher, Eliza-bethtown, Charles B. Zirkle, Louisville, B. M. Vincent, Brownsville, for appellants.
    Hobson L. James, Elizabethtown, for ap-pellee.
   STEWART, Judge.

The controversy to be resolved in this appeal is whether John Traylor, d. b. a Traylor Trucking Service (herein called “Traylor”) and his truck driver, Roy Shelby Cook, had the relationship with Glass-cock Trucking Service, Inc. (herein called “Glasscock”) of master and servant or of independent contractor.

Appellants (five in number) sued Tray-lor, Cook, Glasscock and Material Haulers, Inc., to recover damages allegedly incurred to their person and property when a truck owned by Traylor, driven by Cook, ran into a car owned and operated by appellant, Eugene Decker. The other four appellants were passengers in the car. At the conclusion of all the evidence Glasscock moved the trial court to return a verdict in its favor. This motion was sustained on the ground that Traylor was an independent contractor.

Under other instructions, the jury found that Cook was negligent in the operation of the truck he was driving and returned a verdict for each of appellants against Traylor and Cook. Appellants then moved, among other pleas, for a judgment n. o. v. against Glasscock, which was overruled, and this appeal followed.

The facts necessary to determine the question raised may be briefly stated. They are that Glasscock was the holder of a contract to transport road material in connection with the construction of a section of the West Kentucky Parkway. Glass-cock, being under pressure to complete his contract on time, entered into an oral agreement with Traylor for the latter to furnish trucks and drivers to haul asphalt at so much per ton mile. Glasscock supplied Traylor with his gas and spare parts at cost. Traylor was paid by Glasscock once each month, the cost of the gas and oil used by Traylor being deducted. Tray-lor settled with his drivers. Glasscock told Traylor where to haul, what to haul, and which roads to travel over. Glasscock could regulate the number of Traylor trucks to be used or could terminate the agreement at any time. Likewise, Traylor could call off the haulage agreement at will. A foreman of Glasscock gave general directions to Traylor concerning all hauling.

We can find no significant distinction between the case at bar and that of Tindall v. Perry, Ky., 283 S.W.2d 700. The facts in the Perry case are practically identical with those shown here. In that case a quarry operator, Blanton, engaged a corporate carrier, Webb, to transport stone from a quarry to a construction project. The corporate carrier hired from a truck owner, Perry, a truck with the latter’s driver, Peyton. The corporate carrier had a “foreman-in-charge” at the quarry who instructed the truck driver where to deliver the stone. The driver of the Perry truck, Peyton, struck and killed a man named Tindall. (The names of parties involved in the litigation in the Perry case are abbreviated.)

The question raised in the Perry case was: Did liability attach to Webb, the corporate carrier, for the reason that the Perry truck and its driver, under the facts recited, were in the relationship of servants to Webb ? This Court answered that question in the affirmative, saying:

“ * * * The immediate, ultimate and residual control of this truck and its driver, or the right of control, reposed in Webb. * * * By a process of elimination, the residue of supervision reposed in Webb, and it was responsible for the acts of Peyton.”

Because of their factual similarity we believe the holding in the Perry case controls our decision in the case at bar. See also Bowen v. Gradison Construction Company, 236 Ky. 270, 32 S.W.2d 1014.

It has been said that an independent contractor is one who furnishes a specialized service to produce a predetermined result. See Partin-Lambdin Lumber Company v. Frazier, Ky., 308 S.W.2d 792. The factor that largely determines whether there is the relationship of master and servant or of independent contractor is the right to control upon the part of one who purports to be a master. It is immaterial, as noted in the Perry case, whether the master did in fact control. The question is did the master have a right to control ?

We conclude the record in this case shows that Glasscock had the right to control the trucks of Traylor. It could work a truck or not work it on a particular day. It could designate when and where each load of material was to be transported; and it could direct the route over which it was to be hauled. It could begin or terminate the movement of a truck at any time. It furnished the gasoline and the spare parts, at cost, which was later deducted, and paid Traylor on the basis of so much per ton per mile. In truth, Traylor’s truck driver was working regularly for Glasscock under continuing instructions in the performance of daily work that was an integral part of Glasscock’s business.

The jury found Cook to be negligent and assessed the damages resulting from that negligence. As Traylor and Cook occupied the position of servants or employees of Glasscock, it follows that appellants are entitled to a judgment n. o. v. against Glasscock under the doctrine of respondeat superior. Since the questions of negligence and damages have been determined, this case should be remanded for the entry of a judgment for each of the individual appellants against Glasscock for the amounts of the jury’s verdict.

Wherefore, the judgment is reversed and remanded for the entry of a new one against Glasscock for the amounts of the jury’s verdict rendered for each of appellants.


author: CULLEN, Commissioner. STEWART, Judge

text:
    Marie JARBOE and Robert M. Jarboe, Administrators of the Estate of Infant Jarboe, Appellants, v. Dr. Charles HARTING, Appellee.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.

      Charles A. Williams, Paducah, for appellants.
    Wheeler, Marshall & Manchester, Padu-cah, for appellee.
   CULLEN, Commissioner.

Appellee Dr. Charles Harting made a diagnosis that appellant Mrs. Marie Jar-boe, a 33-year-old married woman, was suffering from a uterine tumor, and pursuant to that diagnosis he subjected her to an operation in the course of which no tumor was found but the fact was discovered that Mrs. Jarboe was six to eight weeks pregnant. Twenty-two days after the operation Mrs. Jarboe had a miscarriage. Subsequently she brought action against Dr. Harting to recover damages for bodily injuries, pain and suffering, and hospital and medical expenses. Her husband, who had obtained appointment as administrator of the estate of the aborted child, joined in the suit seeking damages for wrongful death of the child. At the close of the plaintiffs’ proof the court directed a verdict for the defendant and judgment was entered dismissing the claims. The Jarboes have appealed, maintaining, that their evidence created jury issues.

For reasons hereinafter discussed we have concluded that the Jarboes’ evidence was insufficient to have sustained a jury finding that the miscarriage was a proximate result of the operation. Accordingly, the court properly directed a verdict for the defendant on the claim of the administrator (we do not reach the question of whether the law recognizes a cause of action for wrongful death of a pre-viable child). However, the claim of Mrs. Jarboe for personal injuries was not limited to those attributable to the miscarriage but included some attributable to the operation alone, so it was not proper to direct a verdict against her if, as hereinafter we shall discuss, her evidence was sufficient to make a jury issue of negligence in the diagnosis and decision to operate.

The evidence as relates to proximate cause consisted only of the fact that the miscarriage occurred 22 days after the operation, and the statement of Dr. Harting that the operation “could have” caused the miscarriage although in his opinion it did not. There was no medical testimony that the operation probably did cause the miscarriage, nor was there any evidence of any signs or symptoms of impending abortion between the time of the operation and the occurring of the miscarriage.

In Johnson v. Vaughn, Ky., 370 S.W.2d 591, we mentioned the difficulty in proving causation in malpractice cases and we held that circumstantial evidence may in some cases be sufficient to prove causation. But at the same time we recognized the rule that ordinarily expert evidence is necessary to support the conclusion of causation.

In Cumberland R. Co. v. Baird, 156 Ky. 255, 160 S.W. 919; Louisville & N. R. Co. v. Messer, 164 Ky. 218, 175 S.W. 360, and Consolidated Coach Corporation v. Garmon, 233 Ky. 464, 26 S.W.2d 20, the plaintiffs claiming damages for miscarriages were held entitled to go to the jury on the question of causation although they had no expert testimony to support their claims. However, in each of those cases symptoms of impending abortion appeared immediately or shortly after the injury, such as pains in the side and “flooding spells” in the Baird case, suffering of pain and passing of blood in the Messer case, and intense pains causing continuous confinement to bed in the Garmon case.

Our examination of decisions from other jurisdictions has led us to the conclusion that most other courts would not consider the evidence in the instant case sufficient to establish proximate cause. See Annotations, 13 A.L.R.2d 11; 81 A.L.R.2d 597; 99 A.L.R.2d 1336.

There may, of course, he situations in which causation is so apparent that laymen with a general knowledge would have no difficulty in recognizing it. See Johnson v. Vaughn, Ky., 370 S.W.2d 591; Annotation, 13 A.L.R.2d 11 at page 34. But excepting those situations we have adhered to the rule that the causal connection between an accident and an injury must be shown by medical testimony and the testimony must be that the causation is probable and not merely possible. See Kelly Contracting Company v. Robinson, Ky., 377 S.W.2d 892.

It is general knowledge that miscarriages may result from myriad causes. There is nothing in the circumstances of the instant case to establish probably, rather than merely possibly, that the operation was the cause in this particular instance. Accordingly, we conclude that there was insufficient evidence of causation.

We now consider the question of whether there was sufficient proof of negligence to have required submission to the jury of Mrs. Jarboe’s claim for damages for personal injuries attributable to the operation. (Of course there is no proximate cause problem as to those injuries as distinguished from the injuries attributable to the miscarriage.)

The evidence as relates to negligence was (1) Mrs. Jarboe was of an age at which pregnancy could normally occur; (2) she had some symptoms that were compatible with her being pregnant; (3) the question of whether she might be pregnant was raised in discussion at the time of her examination by Dr. Harting; (4) there was available a reasonably reliable test for pregnancy which could have been administered to Mrs. Jarboe and which the doctor told her he would administer in the hospital but which he did not administer; (5)after the operation the doctor told Mr. Jarboe, “I should have run that test; ” (6)there was no emergency condition indicating a necessity for an immediate operation.

Admittedly, the general rule is that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard, which is, such reasonable and ordinary knowledge, skill and diligence as physicians in similar neighborhoods and surroundings ordinarily use under like circumstances. See Engle v. Clarke, Ky., 346 S.W.2d 13. However, it is a generally accepted proposition that the necessary expert testimony may consist of admissions by the defendant doctor. See Annotation, 83 A.L.R.2d 7, at pages 96 to 98; Annotation, 81 A.L.R.2d 597, at pages 625 to 627. And there is an exception to the rule in situations where the common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts. See Butts v. Watts, Ky., 290 S.W.2d 777;

Johnson v. Vaughn, Ky., 370 S.W.2d 591.

It is our opinion that common knowledge and experience of laymen in respect to pregnancy is sufficiently extensive to warrant laymen’s drawing an inference of culpable negligence in this case from the facts hereinbefore enumerated. Mrs. Jarboe had symptoms compatible with a condition of pregnancy; she was well within the age limits for pregnancy; the possibility of her being pregnant was discussed; a conveniently available, reasonably reliable test for pregnancy was not used; no tests were administered or X-rays taken to confirm the diagnosis of tumor; and no emergency existed to require haste in scheduling the operation An allegation of similar facts was held sufficient to state a cause of action in Bir v. Foster, Fla.App., 123 So.2d 279.

Even if it were considered that the foregoing facts are not quite enough to warrant a finding of negligence we would be of the opinion that the statement of the doctor, after the operation, that he “should have run that test,” throws sufficient additional weight into the balance to overcome the deficiency. Cf. Greenwood v. Harris, Okl., 362 P.2d 85 (where the doctor said: “ ‘[T]his is a terrible thing I have done, I wasn’t satisfied with the lab report, she did have signs of being pregnant. I should have had tests run again, I should have made some other tests.’ He said, 'I am sorry.’ ”); Sheffield v. Runner, 163 Cal.App.2d 48, 328 P.2d 828 (“should have put her in the hospital.”); Wickoff v. James, 159 Cal.App.2d 664, 324 P.2d 661 (“Boy, I sure made a mess of things.”); Walter v. England, 133 Cal.App. 676, 24 P.2d 930 (made a “mistake”.).

Our ultimate conclusions are that Mrs. Jarboe was entitled to go to the jury on her claim for personal injuries attributable to the operation but not for those attributable to the miscarriage, and that the administrator was not entitled to go to the jury on his claim for wrongful death. However, it is our opinion upon a weighing of all relevant factors, that upon a new trial of Mrs. Jarboe’s claim all of the issues should be retried, including the issue of proximate cause of the miscarriage.

There is of course, no merit in the appellants’ contention that the court, in directing a verdict for the appellee, deprived appellants of a constitutional right to a jury trial. See Masonic Widows and Orphans Home, etc. v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815.

To the extent that the judgment dismisses the claim of Mrs. Jarboe for personal injuries it is reversed with directions to grant a new trial on that claim; in all other respects the judgment is affirmed.

STEWART, Judge

(dissenting).

I dissent from the opinion because it has the effect of making the physician in the case at bar an insurer of the correctness of his judgment.

Previous to consulting Dr. Harting, Marie Jarboe had consulted another physician in connection with her condition, and he had made a tentative diagnosis of uterine tumor. She did not return to this physician but three days later consulted Dr. Harting. The latter took her history, made a physical examination, and concluded therefrom that she was suffering from a fibroid tumor of the uterus.

Dr. Harting performed an exploratory laparotomy and discovered Marie Jarboe was six to eight weeks pregnant. She had an uneventful recovery and returned to her home where, two weeks later, she miscarried.

At the trial no expert evidence was presented to show that Dr. Harting was negligent or that he failed to exercise the required care and skill in making his diagnosis or that there was any connection between the operation and the miscarriage.

The opinion holds that the miscarriage could not be said to be attributable to the operation. Then, in the next breath, it holds that Dr. Harting could be considered negligent by a jury if they, in effect, believed the operation was unnecessary. Of course, after the operation was completed it was found to have been uncalled for, as it was based upon a mistake of judgment.

The crucial question .in this case is whether Dr. Harting had an honest belief that an operation was proper.

It is a well-grounded principle of law that a physician is not liable to his patient for damages resulting from a bona fide error of judgment of which he may be guilty; and, when his decision depends upon an exercise of judgment, the law requires only that the judgment be bona fide. A physician is not an insurer of the correctness of his judgment. Especially is this true in cases of doubt or where competent medical authority is divided. ' See 41 Am. Jur., Physicians and Surgeons, sec. 82, pp. 200, 201.

In the case at bar it is uncontradicted that Dr. Harting made nothing more than an honest error of judgment. Another doctor also diagnosed Marie Jarboe as having a uterine tumor.

I would affirm the judgment.


text:
    Roland Franz WEIGAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    Rehearing Denied Jan. 28, 1966.
    Guy C. Shearer, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George Rabe, Charles W. Runyan, Asst. Attys. Gen., Frankfort, for appellee.
   STEWART, Judge.

This appeal is from an order of the Jefferson Circuit Court entered on January 27, 1965, revoking the probation of Roland Franz Weigand and committing him to four years’ confinement in the Kentucky State Reformatory. The essential facts in this proceeding are not in dispute.

On December 21, 1964, appellant was convicted on a plea of guilty on two counts of uttering worthless checks. See KRS 434.070(1). His punishment was fixed at confinement in the penitentiary for a period of two years on each count, the sentences to run consecutively. On January 4, 1965, the following action was taken:

“It is ordered by the court that the motion heretofore made herein to withhold the rendition of judgment in this case be and the same is sustained on condition that the defendant remain out of the country.”

On January 27, 1965, a motion made by the Commonwealth’s attorney to set aside the foregoing order was sustained; and it was directed that appellant be placed in jail and be taken from there to the Kentucky State Reformatory to serve out his sentences.

It should be explained that the record reveals appellant is a German national who, at the time of his conviction, was having some trouble with the federal immigration authorities on the question of whether he had illegally entered the United States. While this matter was pending his immigration status had not been determined. It is apparent the trial court sought by its order to impose banishment as the sole basis of probation, as there is no showing that the trial judge would have granted probation for any other reason.

It is contended the substantive effect of imposing a requirement on appellant “to remain out of the country” rendered the order void ab initio. Its revocation for a violation of its condition, appellant argues, is without authority in law.

The Commonwealth concedes it is beyond the power of a court to inflict banishment as an alternative to imprisonment. See 21 Am.Jur.2d, Criminal Law, sec. 565, p. 534. This precise problem has never arisen in this state. However, an analogous situation is where a conviction is suspended, as a condition of probation, provided a person found guilty will leave the state and not return. Where that person returned to this state in disregard of the condition, it has been held he may nevertheless be taken in custody and sent to the penitentiary to serve his sentence.

This Court has taken the position that, although probation of a sentence may be a benefit conferred upon a convicted criminal for an invalid reason, the order of probation is separable from the conviction itself and the judgment entered thereon. The fact that the probationary order is void does not render the conviction and the judgment void. See Vick-ery v. Lady, Ky., 264 S.W.2d 683, 684. See also Commonwealth, Department of Welfare v. Stevens, Ky., 378 S.W.2d 799. Cf. Waddle v. Commonwealth, Ky., 391 S.W.2d 687.

The probation itself being a nullity there is nothing left for appellant to do but serve his sentences. Probation was granted upon his own motion with the advice of his counsel. He could have appealed from the original order had he disliked the condition imposed. See KRS 439.260(2), (3). Instead he chose to accept the void probation and, subsequently, to violate it. Appellant had the assistance of adequate counsel who was presumed to have known the limitations of the authority of the trial court. See Brabandt v. Commonwealth, 157 Ky. 130, 162 S.W. 786.

Wherefore, the judgment is affirmed.