author: CLAYTON, Justice.

text:
    In re Susan B. Siebert PECK, a Neglected Child.
    No. 5679.
    Court of Civil Appeals of Texas. El Paso.
    March 3, 1965.
    Rehearing Denied March 24, 1965.
    Guinn & Guinn, and A. L. Truex, El Paso, for appellants.
    W. Barton Boling and Joe Morgan, El Paso, for appellee.
   CLAYTON, Justice.

This is an appeal from a judgment of the District Court of El Paso County, Texas adjudging Susan B. Siebert Peck, a minor child under the age of sixteen years, a dependent and neglected child under the provisions of Article 2330 et seq., of the Revised Civil Statutes of Texas, and awarding the care, custody and control of said child to Petitioner (appellee here), Michael Mc-Grath, and his wife, La Verne McGrath, the aunt of said minor child. The Respondents (appellants here) are Albert R. Bays, the child’s step-father, and his wife, Hillen Jeanne Bays, the latter the natural mother of said child.

Appellants present twenty-eight points of error. Although these points are not grouped according to the subject matter contained therein, they fall generally into three classes: (1) Challenges to the jurisdiction of the trial court over these proceedings; (2) The unconstitutionality of these proceedings in applying the provisions of Article 2330, T.R.C.S., to the circumstances presented in evidence in this case; and (3) Errors in the findings and conclusions of the trial court.

(1) Jurisdiction.

Under the first category, relative to jurisdiction, it is asserted in various ways that the court lacked jurisdiction over the minor child because she and her natural mother, who previously had legal custody of such minor, had legal residence and domicile in the State of New Mexico, and the child was only temporarily in the State of Texas at the time the proceedings were instituted, and that no one with any legal claim to said minor child had residence within the State of Texas at the time of the institution of the proceedings-; and further, that there was no evidence to show that the child was dependent and neglected, or was in imminent danger of becoming so, in the State of Texas.

The statutory provisions under which these proceedings were brought contain, in part, the following:

“Art. 2330. ‘Dependent or neglected child’
“The term ‘dependent child’ or ‘neglected child’ includes any child under sixteen years of age * * * whose home, by reason of neglect, cruelty or depravity on the part of its parents, guardian or other person in whose care it may be, is an unfit place for such child; * * * ”
“Art. 2331. Who may institute proceedings
“Any person who is a resident of the county, having knowledge of a child in his county who appears to be a ‘dependent’ or ‘neglected’ child may file with the district clerk of his county a written petition, setting forth the facts constituting the child ‘dependent’ or ‘neglected;’ which petition shall be verified * * * ”

Thus it is seen that the principal provisions bestowing upon the district court jurisdiction to determine, upon a verified petition, a case involving a dependent or neglected child is that the child be under the age of sixteen years whose home is an unfit place for such child, and that the petitioner be a resident of the county and have knowledge of a child in such county who appears to be a dependent or neglected child. As stated in Sanchez v. Garcia, 278 S.W. 868 (Tex.Civ.App., 1925; n. w. h.) such statutory proceedings are fundamentally different in nature and procedure from the ordinary proceeding to determine, as between individual claimants, the proper custody and control of minor children.

In the instant case all the statutory requirements for jurisdiction appear from the record to have been met. Prior to these proceedings, the residence and domicile of the child and her appellant-mother seem to have been in the State of New Mexico. But at the time of institution of proceedings the child was temporarily in Texas, visiting with her grandparents and with her uncle by marriage, the petitioner, with the knowledge and consent of the mother, in the county where the petition was filed. It may be true that the alleged occurrences which would make the child’s home an unfit place for her took place in New Mexico, but this does not seem to preclude jurisdiction in the Texas court of the county wherein the child was present at the time of the filing of petition; the whereabouts of the child’s natural father were unknown, but personal service was had upon the mother in Texas, and she and the step-father of the child appeared and answered in this cause and were present and testified at the hearing hereon, as did the child herself and apparently all of the important witnesses. Under these circumstances the requirements for jurisdiction in even the so-called child custody cases seem to have been met. Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187 (1949). In our opinion, jurisdiction was established in the Texas trial court.

We think it unnecessary to go into the abundant testimony from which it was concluded by the trial court that the home furnished the minor child by her mother and step-father was an unfit place for said child and that the home which would be furnished said child in the future by appellants would be an unfit place for her, and that the child did not have proper parental care, her mother being an unfit person to have the care, custody and control of the minor. The nature of the evidence adduced in this case was such that the grandfather of the child, appellant’s own father, was moved to testify that the appellant-mother was not a truthful person, or a moral person, and was not a fit person to have the custody of the child. He also testified that the home furnished the child by his daughter was not a fit and proper place to raise the child. Trial here was to the court without a jury, and we find ample evidence to support the court’s finding that the subject child was a dependent and neglected child, and also affirm the court’s finding that all jurisdictional and other requirements of

Article 2330 et seq., T.R.C.S., had been given compliance. All points of error in this category are overruled.

(2) Unconstitutionality of these proceedings.

No extended argument is offered by appellants of the points of error in this category, except to state that the application of Articles 2330 through 2337, T.R.C.S., was unconstitutional “not only because the trial court had no jurisdiction because of no evidence of neglect or dependency, but because to attempt to apply a statute of the State of Texas to circumstances, events and persons outside the State of Texas and, at most, only temporarily within the State of Texas, is an unconstitutional state action against citizens of another state.” The provision of the Constitution of the United States asserted to have been violated is Amendment XIV, Section 1. Appellants cite the case of Pettit v. Engelking, 260 S.W.2d 613 (Tex.Civ.App., 1953; ref., n. r. e.), which indeed holds that “parental custodial rights come within the protection of the due process clauses of the federal and state constitutions”, citing the Fourteenth Amendment to the United States Constitution and Article 1, § 19 of the Constitution of Texas, Vernon’s Ann.St. However, in our opinion, neither the holding nor the facts of the Pettit case support the contention of the appellants here, and we find nothing in other cited cases which alters our decision to overrule the points of error relative to unconstitutionality, which are hereby overruled.

(3) Errors in the Findings and Conclusions of the trial court.

By numerous points in this category, appellants complain of the trial court’s findings and conclusions in certain respects and its refusal to find and conclude in other respects. To outline each point separately would unduly prolong this opinion. The court’s findings and conclusions support its judgment. They are founded in and based upon ample evidence. In fact, there is very little contradiction in the testimony. To quote from Nathan v. Hudson, 376 S.W. 2d 856, at page 862 (Tex.Civ.App., 1964; ref., n. r. e.) :

“The trial court’s findings of fact and conclusions of law should be construed together and, if possible, to be in harmony with the judgment and to support it; and in determining whether the findings are supported by any evidence of probative value we should give credence only to the evidence favorable to the findings, disregarding all evidence to the contrary”,

citing the 1963 Supreme Court decision in Brown v. Frontier Theatres, Inc., 369 S.W. 2d 299. We find no merit in the points in this category, and they are overruled.

Having examined all points of error and overruled the same, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    Robert L. SMITH et ux., Appellants, v. PULLIAM, INC., Appellee.
    No. 16612.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 19, 1965.
    Rehearing Denied March 26, 1965.

      H. J. Loe, Fort Worth, for appellants.
    Leo Ferris, Fort Worth, for appellee.
   LANGDON, Justice.

This is a suit for partial performance on a contract dated January 5, 1963, alleged to be partly written and partly oral, for the construction of a family blast shelter in compliance with a Department of Defense bulletin for the agreed sum of $2,875.00 and alternatively on quantum meruit.

The allegations of the appellee as to the oral portion of the contract were essentially as follows: when appellee was requested to bid on the shelter the appellants advised that they did not have sufficient funds to pay for the work and it would be necessary for them to obtain a loan for that purpose. On the promise of the appellants that a loan commitment would be obtained the appellee was induced to enter into the written agreement to construct. By mutual agreement commencement of the work was delayed for a period of six months during which time appellants sought such a loan. When advised that the Hughes Investment Company had given appellants a loan commitment the appellee commenced work on the project in July, 1963. When the work was almost completed the commitment was withdrawn. The appellee then terminated its work on the shelter and requested appellants to obtain another commitment or else place money in escrow to assure payment. The appellants refused to comply and ap-pellee having no assurance that payment could or would be made on completion of the project did not continue the work to completion and instituted suit.

Trial was to the court without a jury and appellee was awarded judgment in the total sum of $2,725.00 with interest at 6% from July 8, 1964, the date judgment was rendered and its costs.

The appellants by three points contend the court erred in (1) permitting oral testimony to vary the terms of an unambiguous written contract, (2) in overruling their special exceptions to the appellee’s first amended original petition, and (3) in refusing to render judgment for appellants since appellee did not prove performance and had no pleadings or proof for recovery under quantum meruit. We affirm.

“The rule is well established that testimony which merely shows matter of inducement leading to the execution of a contract or which explains the circumstances under which it is executed is admissible and in no sense violates the parol evidence rule. It is well settled that the parol evidence rule does not apply to collateral undertakings or agreements that are not contrary to the written contract. Huddleston v. Wheeler Lumber, Bridge & Supply Co., Inc., Tex.Civ.App., 75 S.W.2d 715.” Continental Insur. Co. v. Stewart & Stevenson Serv., 306 S.W.2d 415 (Houston Civ.App., 1957, Ref., n. r. e.), and 23 Tex.Jur. 2d 532, § 358, 13 Tex.Jur.2d 676, § 397. Where a contract is partly in writing and partly oral the oral part may be proved by parol evidence. Pruett v. First Nat. Bank of Temple, 175 S.W.2d 658 (Austin Civ.App., 1943, no writ hist.).

In Glaser v. Henderson, 2 S.W.2d 987, p. 989 (Austin Civ.App., 1928, no writ hist.), the court in considering a similar point based on objection to parol testimony held that proof by parol evidence of true consideration was admissible, “ * * * under the well-settled rule that a verbal contract not inconsistent with a writing may constitute an integral part or the whole consideration for the execution and delivery of the written instrument itself, and that the parol evidence rule has no application to such verbal contract.” (Authorities cited.)

In the case under consideration the oral contract pertaining to the loan commitment constituted an integral part of the consideration for the execution of the written contract since appellants stated they did not have the cash and could not pay for the shelter without a loan. Thus the rule in Glaser v. Henderson, supra, is applicable.

In our examination of the entire record we find no affirmative showing that any exception to the appellee’s pleadings was ever presented to or acted upon by the trial court as required by Rule 90, Texas Rules of Civil Procedure. We must therefore assume that any defect, omission or fault in the pleadings of the appellee was waived by appellants. Even though each of appellants exceptions to the pleadings contained in the first amended original petition of the appellee had been duly presented to the trial court and overruled such action would not in our opinion have constituted reversible error. Harger v. Cason, 223 S.W.2d 244 (Waco Civ.App., 1949, no writ hist.), and authorities cited.

“The right to recover in quantum meruit for partial performance of a contract is independent of the force of the agreement itself. The right rests instead on an implied contract by the other party to pay for the benefits he has received, on the theory that it would be inequitable for him to refuse to pay for such benefits. Consequently, it is not essential for the party seeking to recover on quantum meruit to show facts justifying his failure to have performed the contract in full. Nevertheless, he must still show that the part performed by him was of benefit to the other party, or that it was accepted by the other.” 13 Tex.Jur.2d 553, § 304; 10 Tex.Jur.2d 46, § 44.

“Quantum meruit is founded upon the rule that it is inequitable for a party to refuse to pay for the benefits he received or for work performed for him with his knowledge and consent by someone who is authorized to expect remuneration therefor.” Parks v. Kelley, 147 S.W.2d 821 (Amarillo Civ.App., 1941, no writ hist.); Kramer v. Wilson, 226 S.W.2d 675 (Fort Worth Civ.App., 1950, ref., n. r. e.). Parties who accept the benefit of services rendered are bound for the reasonable value thereof. Jones v. Pearce, 277 S.W.2d 934 (Austin Civ.App., 1955, ref., n. r. e.).

All fact questions were resolved by the court in favor of the appellee and such action finds ample support in the record.

All points of error are overruled and the judgment of the trial court affirmed.


author: PRESLAR, Justice.

text:
    TEXAS STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS, Appellant, v. Homer TRIMBLE, Appellee.
    No. 5674.
    Court of Civil Appeals of Texas. El Paso.
    June 10, 1964.
    Rehearing Denied Aug. 26, 1964.

      See also 366 S.W.2d 124.
    Waggoner Carr, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for appellant.
    John R. Lee, Kermit, Robert Ziesen-heim, El Paso, for appellee.
   PRESLAR, Justice.

Texas State Board of Registration for Professional Engineers revoked the license of Homer Trimble to practice engineering in the State of Texas, and he appealed to the district court which, after trial by jury, entered judgment nullifying the Board’s action. From such judgment the Board brings this appeal based on allegations of four points of error.

The appellant’s first point of error is that the district court erred in submitting the case to a jury and by trying the case under the preponderance of the evidence rule. We sustain this point of error, for on an appeal from a ruling of an administrative agency, such as this one, it is tlie established law that the sole question is one of law for the court’s determination. The substantial evidence rule governs the trial of a suit of this nature. Evidence is heard anew and the reasonableness of the agency’s action is independently adjudged by the court on the basis of evidence admitted in the judicial proceeding. Southern Canal Co. v. State Board of Water Eng., 159 Tex. 227, 318 S.W.2d 619 (S.Ct., 1958). The question of whether the action of the agency is supported by substantial evidence must be determined by the court from a consideration of the entire record in the case, as that record has been made in the trial court. The test is not whether the evidence admitted in court preponderates against the administrative decision, nor yet whether there is merely some evidence to support the decision. The test is whether the administrative decision finds reasonable support in substantial evidence. Board of Firemen’s Relief & Retirement F. Tr. v. Marks, 150 Tex. 432, 242 S.W.2d 181 (S.Ct., 1951); Texas Co. v. Texas Employment Commission, Tex.Civ.App., 261 S.W.2d 178 (Ref., N.R.E.).

“The party aggrieved by the administrative decision is not entitled to a trial de novo in court but must assume the burden of satisfying the courts that the administrative decision is illegal, arbitrary, or capricious; that is, that it is not reasonably supported by substantial evidence.” (Board of Firemen’s Relief & Retirement F. Tr. v. Marks, supra).

See also Texas State Board of Medical Examiners v. Scott, 377 S.W.2d 104 (Aus.Civ.App., Feb. 1964), where the cause was reversed and remanded for new trial because the trial court had submitted it to a jury under the preponderance of the evidence rule.

The action to revoke appellee’s engineering license was brought by appellant on allegations that appellee attempted to bribe the mayor and an alderman of the city of Kermit to obtain contracts with that city. Affidavits of the mayor and alderman were before the Board in its hearing, and on the trial before the court appellant called both the mayor and aider-man as witnesses and offered their testimony as to the facts of the bribe alleged. The court refused this testimony on the grounds that these witnesses had not appeared and testified in person before the Board at its hearing; that the question before the court was the reasonableness of the action of the Board based on the evidence before such Board; and the now oral testimony of the two witnesses would be immaterial and irrelevant to the question before the court.

From what has been said above, that the court must make its determination from the evidence before it, it follows that the proffered evidence of the two witnesses should have been admitted, unless otherwise objectionable. In protecting the rights of the parties the court does not act on the basis of the record before the agency, but on the record made in the court. On another trial of this cause the testimony of the mayor and alderman should be admitted, unless subject to valid objection for other cause.

We do not find it necessary to pass on appellant’s other points of error, and in view of the fact that the case was tried before a jury when it should have been before the court, and the fact that the court was under the wrong impression as to the rule of evidence, this court is of the opinion that the case should be remanded for a new trial.

The judgment of the trial court is reversed and the cause remanded.


author: MURRAY, Chief Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Max G. HERNANDEZ, Appellee.
    No. 14356.
    Court of Civil Appeals of Texas. San Antonio.
    March 3, 1965.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Rudy Rice, David D. Adams, James H. Brannon, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a workmen’s compensation action brought by Max G. Hernandez against Texas General Indemnity Company for compensation benefits allegedly due him for injuries sustained in an industrial accident on November 15, 1962.

The trial was to a jury and, based upon the verdict of the jury and certain stipulations, judgment was rendered awarding Hernandez compensation for permanent partial incapacity in the sum of $12.01 per week for a period of 300 weeks, $960.80 of which sum had already accrued; from which judgment Texas General Indemnity Company has prosecuted this appeal.

Appellee testified that on November 15, 1962, while he was working during the course of his employment with Roegelein Provision Company, as a janitor or cleanup man, and while he was dragging a water hose his feet slipped and he fell into a hog chute and bumped his head. He didn’t know what happened for a minute or so, because he was on his knees when he opened his eyes; he blacked out as a result of this fall and felt pretty bad for the remainder of that day while working, and the pain in the top of his head bothered him that night. He reported to his employer the next day and told him that he was feeling pretty bad over his neck. “Q'When did that pain in your neck start? A Well, about the second or third day. Second day.” He had never before had a pain in his neck, and the medication furnished him by the company doctor did not do him any good. He continued to work for his employer, continued to feel bad, and still had a burning sensation in his head. He did not complain to his employer or fellow workers because he was afraid they might fire him. He went to see another doctor, because the doctor he had seen did not help him. The pain in his neck and head was still bothering him at the time of the trial, but he could not lay off from work because of economic necessity. On January 1, 1963, he went to work at Fort Sam Houston as a janitor, because it was a better job than the one he had with Roegelein. He did not complain to his new employer because he was afraid they would fire him, and because the job was important to him. He began to get nervous and went to see a doctor for his eyes which began to bother him after he bumped his head. He went to see still another doctor but did not get any relief from their treatments.

Rosa Hernandez, wife of appellee, testified that since the day of the accident he has complained of pains in his neck and head, and that he never complained before.

Dr. Terbieten, a chiropractor, testified that appellee had a very acute spasm of the muscles in the nuchal area, which are in the back of his neck. These spasms were so severe that appellee could not rotate his neck the way he should. The ligaments, due to trauma, had become fibrosed. In other words, “they had become trauma-tosed, hurt, and the reaction to trauma is a fibrotic condition.” There was other testimony introduced.

Appellee did not work 210 days during the year before he had the accident, but there was a man in the same class in the area who did work more than 210 days, and it was stipulated by the parties that his average daily wage was $13.87, which figures $80.02 per week. The jury found that appellee did sustain an accidental injury to his body on or about November 5, 1962; that it was sustained in the course of his employment with Roegelein Provision Company, and that such injury was a producing cause of his incapacity to work, that his incapacity was partial and permanent, and that it began on November 16, 1962; that his average weekly wage-earning capacity during the existence of such incapacity will be $60.00 per week.

Appellant contends that there is no evidence, or the evidence is insufficient to support the findings of the jury or, in any event, the findings of the jury are so against the overwhelming preponderance of the evidence as to be manifestly wrong and unjust.

The evidence shows that, as a matter of fact, appellee has never lost any time from his job by reason of this injury. He was working for $60.00 a week when he was injured and is now working for $60.00 a week. However, by stipulation it was agreed that under the law appellee’s average weekly wage prior to his injury was $80.02 per week, and the evidence shows that his earning capacity is now $60.00 per week, or $20.02 less than his average weekly wage before he received his injury, and therefore the trial court did not err in allowing appellee to recover on the basis of a loss of earning capacity of $20.02 per week. If appellee had worked more than 210 days during the year preceding the time of his injury, his average weekly wage would have been fixed by what he was earning, but under the law his average weekly wage had to be fixed by what some other person who had worked 210 days during the year was earning, so on this basis appellee has a loss of $20.02 per week in earning capacity.

The fact that appellee has continued to work and earn money, and at the same rate of pay as before the injury does not establish conclusively that he has not suffered loss of earning capacity. Traders & General Ins. Co. v. Vaughn, Tex.Civ.App., 317 S.W.2d 800; Consolidated Cas. Ins. Co. v. Smith, Tex.Civ.App., 309 S.W.2d 580; Emp. Ins. Ass’n. v. Garza, Tex.Civ.App., 308 S.W.2d 521; Consolidated Cas. Ins. Co. v. Newman, Tex.Civ.App., 300 S.W.2d 160.

The fact that appellee has continued to work and to earn as much money at the same kind of a job he had before his injury, due to the necessity of providing for his wife and children, does not prove that his earning capacity has not been lessened, as found by the jury.

If the jury had found that appellee was totally and permanently disabled, as it did in the case of Texas Emp. Ins. Ass’n. v. Moran, Tex.Civ.App., 261 S.W.2d 855, we would agree that such a finding was so against the great weight and preponderance of the evidence as to be clearly wrong, but the jury has fixed his disability at approximately 25% of his capacity and we are unable to say that such finding is clearly wrong.

The judgment of the trial court is affirmed.


author: WELBORN, Commissioner.

text:
    D. F. PITTS and Mattie Pitts, His Wife, Appellants, v. William PITTS and Ethel Pitts, His Wife, et al., Respondents.
    No. 50464.
    Supreme Court of Missouri, Division No. 1.
    Jan. 11, 1965.
    Sharp & Hatley, by William B. Sharp, Malden, for appellants.

      Riddle, O’Herin & Newberry, Malden, for defendants-respondents.
   WELBORN, Commissioner.

Plaintiff below has appealed from an adverse judgment of the circuit court in her action to quiet title to 160 acres of real property located in Dunklin County, Missouri. Title to real estate being involved within the meaning of Section 3, Article V, Constitution of Missouri 1945, V.A.M.S., we have jurisdiction of the appeal. We will refer to the parties as they appeared in the circuit court.

This action was instituted by D. F. Pitts and his wife, Mattie Pitts. Their petition was in two counts. The first count alleged that the plaintiffs are owners in fee simple of a quarter section of land situated in Dunklin County and described in the petition. The petition alleged that the defendants “claim and assert or might claim and assert an interest in or title to the real estate hereinabove described as descendants and heirs at law of one Fountain E. Pitts and Mariah E. Pitts, his wife, both deceased, as heirs, consorts, devisees, donees, alienees or immediate, mesne, remote, voluntary or involuntary grantees of Fountain E. Pitts.” The defendants were named in the caption of the petition, but were not otherwise identified therein.

Count II of the petition alleged that the plaintiffs were owners in fee simple, by purchase, for value, of the real estate in question and that they and those under whom they claim had been in open, adverse, hostile, continuous and exclusive possession of the property for more than 31 years. Count II repeated the allegation of the first count regarding the claims of the defendants.

An answer was filed by defendants Mary Pritchett and Bud Pritchett by which they denied that the plaintiffs were owners in fee simple of the property and that the plaintiffs had obtained title to the land by adverse possession. The answer admitted that these defendants claimed an interest in the property as heirs of Fountain E. Pitts and Mariah E. Pitts. By their answer the defendants further stated: “They aver that Defendants Mary Pritchett and Bertha Moonier are the daughters of Fountain E. Pitts (also known as F. E. Pitts) and Mariah E. Pitts (herein also known as M. E. Pitts), his wife; that the said Fountain E. Pitts died on the 11th day of June, 1915, without a will, leaving as his heirs the said Mariah E. Pitts, his widow, William Pitts, James Pitts, Plaintiff D. F. Pitts (also known as Fletcher Pitts), Louis Pitts, Luther Pitts and Cecil Pitts, his sons, and Defendants Bertha Moonier and Mary Pritchett, his daughters ; that the said Fountain E. Pitts was, at the time of his death, the owner of the real property described in. the Plaintiff’s petition; that the estate of the said Fountain E. Pitts was administered in which the widow, Mariah E. Pitts, made an election; that no dower or homestead was assigned to the said widow and that the said Mariah E. Pitts died in 1937 without a will.” The prayer of defendants’ answer was that the relief prayed for by the plaintiffs be denied and for their costs.

Subsequently a motion for substitution was filed in which Mattie Pitts suggested the death of D. F. Pitts and moved the court to remove the name of D. F. Pitts as a party plaintiff and to continue the action in the name of Mattie Pitts as sole plaintiff. The motion stated: “This * * cause of action is one to quiet title to real property held and claimed by Plaintiffs as an estate by the entirety.”

On these pleadings the matter was tried by the court without a jury. The only evidence adduced at the hearing was testimony of plaintiff Mattie Pitts. She testified that D. F. Pitts was her husband and that he was deceased. Her answer to a question of whether or not she and her husband had been the owners of record of land in Dunklin County was stricken. Thereupon she was asked whether or not she had an abstract to the land in question and she identified an abstract as covering the premises. She was asked: "Now Mrs. Pitts, you know when you came into possession of this land in Dunklin County?” In response to an objection, the court stated that the witness might answer. However, plaintiff’s counsel then stated: “It is immaterial, but the record will speak for itself, and we will offer the abstract.” Defendants’ counsel stated: “Now, we don’t want to mislead Mr. Sharp — but we are not going to agree to it, that this abstract can be offered in evidence in this case, and we object to it.” Plaintiff’s counsel replied: “I will continue.” After the portions of the abstract had been marked and identified, plaintiff’s counsel offered them in evidence and an objection to the offer was sustained. Thereupon plaintiff’s counsel stated: “That is our evidence, Your Honor.” Defendants’ counsel moved orally for the dismissal of the petition and the court stated that the motion would be sustained.

Subsequently, without further hearing or evidence, the court entered its findings of fact, conclusions of law and decree in which it found that there had been a complete failure of proof by the plaintiff as to both counts of her petition. However, the court did not enter judgment dismissing the petition. Instead, the court further found: “That the Plaintiff has prayed the court to ascertain and determine the interest of all parties in said described land.” The court thereupon entered judgment for the defendants and against the plaintiff upon both counts of plaintiff’s petition and further adjudged: “That the title of the defendants, the descendants and heirs at law of Fountain E. Pitts and Mariah E. Pitts, his wife, deceased, in certain land in Dunk-lin County (description omitted) be and the same is hereby quieted in them as against the plaintiff herein except as to the plaintiff’s rights as the surviving widow of D. F. Pitts in D. F. Pitts’ interest in said described land as one of the heirs of Fountain E. Pitts and Mariah E. Pitts.” After her motion for rehearing had been overruled, plaintiff appealed.

On this appeal, plaintiff seeks relief from the judgment below on three counts: (1) That the findings and conclusions of law of the trial court were not supported b> any evidence; (2) that in sustaining defendants’ motion to dismiss plaintiff’s petition the case was terminated and the affirmative decree for the defendants not based on some evidence was improper; (3) that “the failure of proof on the part of Plaintiff was obviously the result of surprise and miscalculation as to evidence wherein Plaintiff failed to make a submis-sible case and new trial should be granted as a matter of substantial justice.” The defendants answer that the trial court had the duty to adjudicate the title as among the parties to the action and that the defendants’ answer, not having been responded to by the plaintiff, was sufficient to support the judgment entered. Defendants also assert that the record affords no basis for plaintiff’s contention that her failure of proof was the result of surprise such as would justify reversal of the judgment below.

We have pointed out on numerous occasions that in an action to quiet title the court is required to adjudicate the respective interests of the parties to the action regardless of which party is entitled to it. Evans v. Brussel, Mo.Sup., 300 S.W.2d 442, 444(3). Such declaration should be entered although plaintiff fails to establish his claim of title and the defendant does not request affirmatively an adjudication of title in him. Himmelberger-Harrison Lumber Co. v. Jones, 220 Mo. 190, 119 S.W. 366, 368. However, an adjudication of title should be based upon some evidence. Dowd v. Bond, Mo.Sup., 199 S.W. 954, 955.

In this case the court’s judgment was based solely upon the defendants’ answer, without evidence being offered in support thereof. The respondents, relying on Himmelberger-Harrison Lumber Co. v. Jones, supra, assert that the allegations of the defendants’ answer were sufficient to authorize the judgment. In Himmelberger-Harrison the claim of the plaintiff was based on a sheriff’s deed conveying the interest of one Henry Jones in the land in question. The defendants were the widow and children and heirs at law of Henry Jones and their answer so alleged. When the court found that the sheriff’s deed upon which plaintiff’s claim was based was void, it thereupon entered judgment declaring that the defendants were the owners of the tract in controversy.

In upholding this judgment against the contention that it was entered without testimony showing title in the defendants, the court stated (119 S.W. 369): “The record expressly recites that upon the trial it was agreed between the parties that Henry Jones is the common source of title. The defendants, by their answer, allege that Sarah E. Jones is the widow of Henry Jones, and the other defendants are his children and heirs at law. These allegations in the answer are not denied by any replication filed by the plaintiff. Upon this state of the record, there was no proof required as to the title of the defendants.”

In our opinion the instant case is distinguishable from the Himmelberger-Har-rison case because of the difference in the rules of pleading under which the two cases were tried. The Himmelberger-Harrison case was filed in 1905 and decided by the Supreme Court in 1909. At that time the Code of Civil Procedure required a reply to new matter in the defendant’s answer. Otherwise the new matter stood admitted. Sections 607-608, RSMo 1899.

By the 1943 Code of Civil Procedure (Laws of Mo., 1943, pages 353, 371, Section 41) and the current rules of procedure under which this cause was tried, averments in a pleading to which a responsive pleading is not required are deemed denied or avoided. Supreme Court Rule 55.11, V.A.M.R. Under Rule 55.01, in the absence of third party pleadings, only a petition and answer are required unless the answer contains a counterclaim denominated as such or a crossclaim. By Rule 55.06 a crossclaim or counterclaim must state a demand for judgment for the relief to which the pleader deems himself entitled. In many actions to quiet title the defendant’s claim is asserted in the form of a crossclaim which calls for responsive pleading by the plaintiff. See White v. Wilks, Mo.Sup., 357 S.W.2d 908, 913(8-13); McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 759(1). In this case, however, the defendants’ answer requested no affirmative relief, but prayed only that the relief sought by the plaintiff be denied. Defendants’ answer, therefore, cannot, under Rule 55.06, be considered as asserting a crossclaim. The plaintiff was not required to reply to the defendants’ answer. Without further pleading by the plaintiff, the affirmative averments of the defendants’ answer were denied rather than admitted, as was the case under the rules in effect when the Himmelberger-Harrison case was tried. •

An additional distinction between this case and Himmelberger-Harrison lies in the fact that, in the latter case, the common source of title of the plaintiff and defendant was agreed upon by the parties. Here there is no admission or evidence in that regard. Perhaps it could be assumed from the defendants’ answer, but, as we have already concluded, those allegations are not to be considered admitted. The absence of evidence in this regard leaves unsupported the defendants’ assumption that D. F. Pitts was a cotenant of the defendants and deprives defendants of the benefit of the presumption (Hynds v. Hynds, 253 Mo. 20, 161 S.W. 812; Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557, 558), which they invoke, that cotenants do not hold adversely to one another.

We, therefore, conclude that there was no evidence to support the trial court’s judgment declaring the title to the property in question.

May the plaintiff on this appeal attack the judgment on such grounds ? The general rule is that the plaintiff in an action to quiet title must recover on the strength of his own title. If he has no title, plaintiff is not generally aggrieved by an adjudication of title in the defendants. Harrington v. Muzzy, Mo.Sup., 258 S.W.2d 637, 639(3); Feeler v. Reorganized School District, Mo.Sup., 290 S.W.2d 102, 104(5-7). However, in Himmelberger-Harrison, supra, the court did consider the plaintiff’s attack on a judgment which denied its claim of title. The basis of the attack was that the judgment entered was wholly unsupported by any evidence. In our opinion, plaintiff in this case may raise the objection that the judgment entered was not based upon any evidence presented to the court. “That there must be evidence upon which to base a judgment or decree in any case, in the absence of admissions of sufficient facts in the pleadings to sustain it, is elementary law.” American Extension School of Law v. Ragland, 232 Mo.App. 763, 112 S.W.2d 110, 113(4, 5). In view of the added fact that the judgment in this case did purport to determine that the plaintiff had an interest in the property, we conclude that the plaintiff may attack the judgment on the grounds that it was wholly unsupported by evidence and that the judgment below should be reversed for that reason.

Inasmuch as the defendants may be able to adduce evidence to support their claim of title, the cause should be remanded for a new trial. The question arises as to whether a new trial should also extend to a hearing upon the plaintiff’s claim. The record on this appeal discloses a serious dereliction upon the part of plaintiff’s counsel, if there is, in fact, merit to the plaintiff’s claim. Apparently plaintiff intended to rely on a claim of adverse possession. Although defendants’ objection to a question regarding the plaintiff’s possession was overruled, plaintiff’s counsel did not pursue the matter but stated that he would rely upon the abstract. The abstract might have contained some matter which would have borne upon the plaintiff’s possession, although it would appear unusual for it to have done so. In any event, the inadmissibility in evidence of the abstract was obvious and plaintiff’s counsel in the absence of prior agreement or stipulation with opposing counsel should not have relied upon it.

Inasmuch as the cause must be remanded, we conclude that the interests of justice will best be served by permitting plaintiff and defendants to present to the court the matters upon which their respective claims are based in order that the court may be fully informed before determining their respective rights. Billings v. Paine, Mo.Sup., 319 S.W.2d 653, 660(16, 17); Feinstein v. McGuire, Mo.Sup., 297 S.W.2d 513, 518(13). Further admonition to plaintiff’s counsel to be properly prepared to present his client’s claim should be unnecessary.

The judgment is reversed and the cause remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DALTON, J., absent.


author: RUARK, Presiding Judge. PER CURIAM.

text:
    W. O. TURNAGE and Jimmie Mills, by Next Friend W. O. Turnage, Plaintiffs-Appellants, v. STATE FARMERS MUTUAL TORNADO INSURANCE COMPANY OF MISSOURI, Defendant-Respondent.
    No. 8342.
    Springfield Court of Appeals. Missouri.

      Feb. 18, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 10, 1965.
    Application to Transfer Denied May 10, 1965.

      Kenneth L. Dement, Sikeston, for plaintiffs-appellants.
    Jackson, Thomasson & Dickerson, Cape Girardeau, for defendant-respondent.
   RUARK, Presiding Judge.

This is a suit on an automobile liability policy. The plaintiffs Turnage and Mills received a jury verdict against defendant State Farmers Mutual Tornado Insurance Company. Thereafter defendant’s motion for judgment in accordance with the motion for directed verdict at close of evidence was sustained and judgment entered for defendant. Plaintiffs have appealed.

The policy in question was issued to W. O. Turnage, a farmer, covering liability in respect to operation of a Dodge truck. The definition of insured included those driving with permission, but the definition did not apply “(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.” Under Exclusion (d) the policy did not apply to “bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured.”

Jimmie Mills, seventeen-year-old stepson who lived with insured Turnage, was driving the truck bringing a group of teenage boys home from a haying operation. One of the boys, Larry Jones, fell off the truck and was killed. His parents secured judgment against both Turnage and Mills. State Farmers Mutual refused to accept liability. Turnage and Mills satisfied the judgment and brought this suit. The principal question presented to us is whether Larry Jones was an employee of the insured and, if so, whether his injury and death arose out of his employment. If so, coverage is excluded.

A part of the farming operations of named insured Turnage was the raising and feeding of cattle. He had for several years been growing hay, primarily to feed his cattle, and it was necessary each year to bale and put up hay. From time to time he had boys assist in that operation by picking up the bales (he ran the baler himself) and hauling them to and stacking them in shelter. The death of Jones occurred on August 30, 1961, when a group of five boys were returning from work on a farm which is referred to as “the Bell City farm.” Only a few days before this particular incident Turnage had been engaged in a similar haying operation at what is called the “Randles job.” The method of operation, transportation, and rate of pay, were the same on the Randles job as at the Bell City farm with which we are concerned; and at least some of the five boys on the Randles job were the same ones who worked on the Bell City job. There seems to be some disagreement in the evidence as to whether or not the deceased Larry Jones had worked on the (prior) Randles job, but we do not consider it important as to whether he did or not.

As stated, the method of operation was the same. Turnage ran the baler and the boys gathered up the bales, loaded them on the flat-bed truck, and hauled them to and stacked them in the particular barns designated by Turnage. They took turns driving the truck, none of them was boss over the others, and all five including Jimmie, the stepson, shared in the total piece-rate wage of ten cents per bale, or two cents per bale for each boy.

As to just how the particular teen-agers came to be employed for the Bell City job the evidence is rather cloudy. Some of the boys said that at the Randles job Turnage had mentioned later work. Turn-age himself was rather vague on the subject; but it is admitted and well established that he told his stepson, Jimmie, to gather up a group of boys and take them to the Bell City farm work. These boys all lived in what is called the Painton, Hooe, or Popp City communities, and at varying distances from the Bell City farm. Estimates of these distances ranged from a minimum of five and one-half miles to a maximum of fifteen miles. If the testimony of the surviving boys (Jimmie not included) were to be accepted, they had no means of going to this work if transportation was not furnished. Turnage, on the other hand, expressed the opinion that “they had other ways of getting there,” but he did not elaborate. Turnage conceded that he directed Jimmie, his stepson, to pick up the boys and bring them to work on August 29th. Jimmie accordingly, driving the flatbed Dodge truck, went around to their homes, picked them up, and took them to the Bell City farm. Plaintiff Jimmie testified that he didn’t know what “arrangements” had been made to get the boys to work. “It was just understood that they would be home and I would just pick them up wherever they was at.” He also understood he was to take the boys home from the field at night. “Everybody takes their hayhaulers home.” Plaintiff Turnage testified that he didn’t agree that the boys were to be taken to the job; but he agreed that he asked Jimmie to go get them. He said he didn’t remember exactly whether he had already talked with any of the boys. “I might have asked them if they would want to haul hay a little later.” He said it was “not necessarily” customary to pick the boys up and take them out on the job. “We did that for their convenience as much as anything else, I guess.”

On the first day (August 29th) Turnage was present operating his baler and the boys picked up and hauled the bales. One field was finished. Turnage started on another, decided that the hay in that field was a little too green, and shortly called the work off for that day. He used his pick-up (not the insured Dodge) to take the boys back and “dropped them off” at a store in the neighborhood of their homes.

On the following day (August 30th) Turnage, again in his pick-up, gathered up the boys and took them out to the farm. He again ran the baler and the five boys (alternating at driving the Dodge truck while the other boys loaded) picked up the bales, hauled and stacked them in the bam specified by Turnage. About four o’clock in the afternoon Turnage left the field. Here again the evidence is a little vague as to whether he left because he had a headache or because he had cut and baled all the hay he felt was desirable; but for our purpose here, most favorable to the verdict holder, we will assume that he had finished all the cutting which was to be done on this farm. When he left the field he told the boys to “come on in and bring the truck” when they had finished with the job of bringing in the hay. After the work was completed and the last bale of hay was hauled and loaded in the barn, they started home. Jimmie was driving the truck, one boy rode with him in the cab, and the others, including Larry Jones, were standing on the flat-bed behind. Shortly after turning out of the field and onto the highway the accident occurred.

Is the type and character of the employment, as the word is used in the policy, such as is not excepted or excluded by the terms of the policy? Was the employment merely “casual” or “incidental” ? Appellants rely upon Daub v. Maryland Casualty Co., Mo.App., 148 S.W.2d 58. In that case the St. Louis Court of Appeals held that the words “not employed” in the policy were ambiguous, so as to leave the policy open to construction; and that the obvious purpose of such words was to exclude persons regularly employed, not mere occasional, incidental or casual employees. It was the view of the court that a boy hired to do odd chores about a house or yard on three different and irregular occasions was not “employed” and, therefore, not excluded. In the same case (State ex rel. Maryland Casualty Co. v. Hughes, 349 Mo. 1142, 164 S.W.2d 274), the Supreme Court stated that it was not concerned with whether the construction adopted by the Court of Appeals was the one it would have given, but the single and determinative inquiry was whether the language was subject to construction at all. It held that the words “not employed” introduced an ambiguity, so the policy was subject to construction and certiorari was quashed.

Since then the Daub case has been distinguished in cases factually similar to the one at hand. In Farm Bureau Mutual Ins. Co. v. Farmers Mutual Auto Insurance Co., Mo.App., 360 S.W.2d 325, the exclusion was in language similar to that in our case. The injured person was a teenager engaged in picking up and hauling hay, as here. He had worked from four to six hours on from two to five days before the incident. It was held that the boy was doing work that was a necessary part of the employer’s means of making a living, a part of his farming operations. His work was not a “chore” but a “substantial, ordinary, recurring and necessary part of the insured’s regular business.” Hence, he was engaged in employment within the exclusion provision of the policy.

In State Farm Mutual Automobile Ins. Co. v. Brooks (8th Cir.) 136 F.2d 807, two boys were temporarily employed at one dollar per day to pile wood at a sawmill and to load the truck so that fuel wood could be hauled to and unloaded at Joplin where the employer was engaged in the fuel business. The exclusion was as to “any employee of the insured while engaged in the business * * * of the insured.” The boys were on a truck returning to Joplin, and the truck was being driven by a son of the insured. It was held that, although the employment contemplated no more than a week’s work, it was not a mere chore but a substantial, ordinary, recurring and necessary part of the insured’s regular business. The boys were held within the exclusion.

Putting up hay was a necessary part of the insured’s business, which was farming and stock raising. The gathering and preservation of the hay was essential, whether the insured intended to sell it or, as here, feed it to the cattle. It was a regular, recurring, although seasonal, activity as distinguished from an irregular, occasional or incidental transaction not associated with his usual and ordinary business. Once the employer-employee relationship was established, it makes no difference, in the interpretation of the policy, that the employee had worked but a short time. We hold that the boys were “employees” (as distinguished from occasional, odd job, chore boys) within the terms of the policy.

A more difficult question is raised by appellants’ principal contention. They argue forcefully, and with some logic and case support, that, whether or not there was “employment”, it had ended. The last bale of hay had been put away. The last work was done. The job was finished. Nothing more remained to be done in respect to the employment except the payment of the boys for their services. The boys were on their way home from the hayfield, being so transported on the fiat-bed truck. The question squarely presented then is: Do the terms of the exception and exclusion apply when an employee has finally completed his work and is being transported from the place of employment to his home? The appellants rely heavily upon Schnurman v. Western Casualty and Surety Co., 352 Mo. 650, 179 S.W.2d 31, as the only Missouri case involving termination of employment. That case, as we interpret it, is a “the result could not be different in any event” decision. It involved a single trip down through Oklahoma. Plaintiff rode with his brother-in-law Figlure and was injured on the return trip. Both plaintiff and Figlure testified that plaintiff was not employed by Figlure, and no witness testified that he was. The evidence very strongly indicated that plaintiff never had been employed. However, the trial court found as a fact that plaintiff had been so employed but the merchandise had been disposed of in Tulsa and the employment was then terminated. The Supreme Court held that the findings of fact did not constitute a special verdict and could not be considered on appeal other than as a general finding for the plaintiff; but the result could not be different if the findings of fact be considered as a special verdict; and the court concluded (179 S.W.2d loc. cit. 34) that in view of the evidence set out there could be no question as to the sufficiency of plaintiff’s evidence to support the general finding in plaintiff’s favor. We do not regard this case as holding, as a matter of law, that one on a return trip after the job has been completed is not an employee.

Appellants cite various foreign cases, some of which we think are distinguishable and, in the interest of brevity, do not discuss. Other cited cases at least raise the question as to whether, in those jurisdictions, the workers on their return ride home would be considered as employees within the policy exclusion.

While the idea did not originate in this court, the Missouri courts (and those in some other states) have consistently turned to the Workmen’s Compensation Act and the decisions thereunder in questions involving the meaning of the word “employee” as used in exclusion clauses of liability insurance policies. Ward v. Curry, Mo., 341 S.W.2d 830, 836; Campbell v. American Farmers Mutual Insurance Co. (8th Cir.) 238 F.2d 284, 287. An injury is said to arise “in the course of” employment when the workman is engaged in doing some duty which he is employed to perform, or in doing something associated with and incidental to such duty. It arises “out of” such employment when there is a causal connection between the conditions under which the work is performed and the resulting injury. McFarland v. St. Louis Car Co., Mo.App., 262 S.W.2d 344, 346; Gage v. Connecticut General Life Insurance Company, Mo.App., 273 S.W.2d 761; Howes v. Stark Bros. Nurseries and Orchard Co., 223 Mo.App. 793, 22 S.W.2d 839, 844.

Whether the employee is engaged in such employment while being transported to and from work so as to bring him within the exclusion clause of an insurance policy depends upon the contract of employment. In the words of that profound and clear-speaking jurist Bennick (Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 499-500):

“ * * * Generally speaking, it is the scope of the contract of employment which furnishes the determinative test of whether such an accident is one for compensation. In other words, it is the contract of employment, and not the actual commencement of labor, which establishes the relationship of the parties under the act. If the right to tran-portation. is given, either positively or inferentially, by the terms of the contract, the employment begins when the employee hoards the bus to go to the scene of his labor; it continues throughout the entire period of transportation; and it terminates when he leaves the bus at his home. If the contract provides in express terms for transportation, there is but small room for controversy, but, where its provisions are to be implied from the nature and circumstances of the employment, many considerations may be involved, such as whether the furnishing of transportation was merely an act of courtesy, wholly disassociated and disconnected from the relationship of master and servant; whether the employee received pay for the time spent on the bus; whether the furnishing of transportation was with the knowledge and acquiescence of the employer; and whether the course of the employment may extend beyond the hours of the servant’s actual labor, and to places other than the premises upon which his labor is performed.
“* * * [T]hat transportation to and from work may well be one of the incidents of the employment, and an accessory, collateral, or subsidiary part of the contract; that it is something added to the principal part of the contract, as a minor, but none the less a real, feature or detail of the contract; and that consequently an accident such as the one we have before us should be regarded as compensable, because it occurs within the period of the employment, at a place where the employee has a right to be, and while he is engaged in something incidental to his employment proper, because contemplated by it.”

The reasoning of the Syleox case has been followed and applied in Campbell v. American Farmers Mutual Insurance Co. (8th Cir.), 238 F.2d 284; Gage v. Connecticut General Life Insurance Company, Mo.App., 273 S.W.2d 761; State Farm Mutual Automobile Insurance Co. v. Brooks (8th Cir.) 136 F.2d 807, 811-812.

In our case it was a necessary part of the employer’s business to put up his hay. In order to accomplish this it was essential for him to have help in picking up, hauling, and stacking it. The evidence requires the conclusion that it was necessary or at least beneficial to the orderly and profitable conduct of his business for the employer to have this help at the place of work at the same time so that, after the bales had been disgorged by the baler, the gathering and hauling and stacking could be performed by those working together as a crew. The boys chosen to do this work lived in a rural community at varying distances from the place of work and not adjacent thereto. Arrangements were made to pick them up so they could be transported to work together and they were picked up and returned from work on both days by or at the direction of the employer.

In the language of Johnson v. Aetna Casualty and Surety Co. (5th Cir.) 104 F.2d 22, 23:

* * * We think the judge was warranted in concluding that the transportation was an implied term of the employment. The distances from the homes of the men to their work was so great that transportation must have been considered by both employer and employee. The ride was not for the mere convenience of the employee after his work was done, but was for the forwarding of the employer’s work in that it was necessarily provided to get these employees for the very moderate wages paid them.”

To the same effect is Griffin v. Catherine Sugar Co., supra, 54 So.2d 121, wherein it was stated “had transportation not been furnished, the defendant would have been unable to get the necessary help to harvest its crop.”

The question of whether or not transportation was a part of the express or implied terms of the contract is a mixed question of law and fact. If the basic question is one of fact it was for the jury to decide and we must, of course, accord every favorable inference to support the verdict. But these facts are clear: The boys, including decedent Jones, obviously lived in a rural community miles distant, too far to walk or hire other transportation at the wages paid. Whether we consider it in the light of defendant Jimmie Mills’ testimony that “everybody takes their hayhaulers home”, or in that of the more dubious and somewhat evasive “not necessarily” testimony of defendant Turnage, the bare fact remains that the presence of this crew of teen-age boys was necessary to his haying operation and that either by “custom” or “arrangement” the boys were to be taken to and returned home from the place of employment. Turnage was engaged in a recurring operation which called for the presence of a haying crew at the times needed. We will not indulge in surmise as to what would have happened to his general operations of this character in the future had he refused to take the boys home and left them stranded miles from their homes. We think the only reasonable conclusion which can be drawn from the evidence is that it was an express or implied “understanding” of the employment contract that the boys were to be transported to work and back to their home neighborhood, ana that such transportation was to the benefit of the employer and “forwarded” his operations. That conclusion is not a decision as to a fact. It is an inescapable conclusion of law drawn from all the facts. Such being the case, the transportation was an ancillary and incidental part of the employment and an added or “fringe” consideration to be received by the employees. Accordingly, under the case law of this state by which we are bound, we must hold that the relationship of employer and employee existed throughout the return trip. The judgment must be affirmed. So ordered.

STONE and HOGAN, JJ., concur.

On Motion for Rehearing or to Transfer

PER CURIAM.

Appellants feel they .are outraged because in our statement of facts, we neglected to mention that, according to Tur-nage, when he was picking up the boys on the morning of the second day, he drove past the home of deceased Larry Jones, that as he did so “the other boys was beginning to holler, ‘Wait, we got to get Larry,’ so I backed up and Larry got out from his truck and got on the truck and we went on to the field.” It is argued from this that there was a fair inference (a) that Larry owned a truck, (b) that he was preparing to drive himself to the hayfield, and (c) that insofar as this youth was concerned, this belies our conclusion that there was an implied understanding that he was to be transported to and from the work.

The verdict holder is entitled to the benefit of all reasonable inferences which support his verdict, and the appellate court, if its opinion undertakes to recite the circumstances which govern its decision, should set forth all those facts which support such verdict. Due, no doubt, to our lack of perspicaciousness and peripheral comprehension, we did not understand that appellants were contending that there was a separate or different arrangement, or lack of arrangement, in respect to Larry Jones than that in respect to the crew or group of boys; but since we now understand that to be the contention, we set forth' in full (above) the only testimony we find which bears upon it in order that appellants may not feel that material evidence and a material contention have been overlooked or ignored.

Assuming that all the inferences above set forth can be indulged, including the suggested inference of some separate arrangement, or lack of arrangement or understanding, we think it makes no difference in the ultimate outcome; for if there was a separate “lack of arrangement” it was abandoned by both parties when Turnage did proffer the transportation to work along with the rest of the crew, and the youth accepted it. The circumstances necessarily implied an understanding, or implied agreement, that Jones was to receive transportation back home.

The motion for rehearing or in the alternative to transfer is overruled.

      . The collective total due to the five boys for the two days’ work was forty-six dollars. This was paid a few days later by paying the proportionate amount owed to each boy.

      . See 7 Am.Jur.2d, Automobile Insurance, § 132, p. 455; and 50 A.I/.R.2d Annotation p. 82.

      . B. & H. Passmore Metal & Roofing Co. v. New Amsterdam Cas. Co. (10th Cir.) 147 F.2d 536; Elliott v. Behner, 150 Kan. 876, 96 P.2d 852; Commercial Casualty Ins. Co. v. Cherry, Ark., 79 S.W.2d 270; see also Green v. Travelers Ins. Co., 286 N.Y. 358, 36 N.E.2d 620.

      . See discussions and reviews 50 AX.R.2d, Annotation, p. 92 et seq.; Hartford Accident and Indemnity Co. v. Hudson (E.D.Ky.) 124 F.Supp. 666; Griffin v. Catherine Sugar Co., 219 La. 846, 54 So.2d 121; also, 56 O.J.S. Master and Servant § 180 p. 868 et seq.; 99 C.J.S. Workmen’s Compensation § 235, p. 834;


author: RUARK, Presiding Judge.

text:
    Isabel Ann TERRY, Plaintiff-Appellant, v. C. B. CONTRACTING COMPANY, a Corporation, Defendant-Respondent.
    No. 8356.
    Springfield Court of Appeals. Missouri.
    March 8, 1965.
    J. W. Grossenheider, Lebanon, for plaintiff-appellant.
    Kay & Quigley, Eldon, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal from a summary judgment entered in favor of the defendant.

Plaintiff sued to recover damages occasioned to a dwelling house because of blasting and explosives used by defendant in the construction of a sewer project. These facts appear from the petition, admissions, and answers to interrogatories on the part of plaintiff: One Rector and wife were the owners of the property. Plaintiff held a note in the amount of six thousand five hundred dollars which was secured by mortgage deed of trust on the property. The damage caused by the blasting occurred through the months of July to October, 1962. After this happened, Rector, the owner and mortgagor, came to plaintiff and told her, in substance, that the house was seriously damaged, that it “wasn’t worth fixing up.” “It would cost me more than the house is worth.” That he wasn’t going to have a thing to do with it further. That he would take a bulldozer and “put it down in the gully”; and more to the same effect. He offered plaintiff a deed “if I wanted it.” The upshot of these alleged high-pressure tactics on the part of Rector (who it is indicated might be shown to be insolvent) upon the plaintiff, who was a recently widowed schoolmarm, is that on March 13, 1963, she took a warranty deed from Rector and wife; cancelled the promissory note for six thousand five hundred dollars; and made marginal release of the deed of trust as follows:

“The debt mentioned in the within instrument of writing having been fully paid and discharged, I hereby acknowledge satisfaction in full, and release the property herein conveyed from the lien and encumbrance thereon, this 16 day of March, 1963.”

When this cancellation and release was made, Rector gave plaintiff no “paper” of any kind and there was “no other agreement” between the parties. There is no indication that the conveyance to plaintiff was because of any threat of foreclosure; on the contrary plaintiff was urging Rector to continue, but Rector wanted “out” because he was “through” with the house. It was in “terrible shape.”

After the cancellation and release, plaintiff put other people in possession under some arrangement whereby she supplied material at a cost which appears not to have exceeded three hundred dollars, and the person in possession did certain work in regard to making repairs. It would also appear from her deposition that she and the person now in possession have some kind of a contract whereby he is purchasing the house, on payments, at a price of seven thousand eight hundred dollars; but the evidence in regard to this arrangement is so indefinite that we cannot say as a matter of law that the value of the property taken in exchange for the debt equaled or exceeded the amount of indebtedness covered by the deed of trust, so that there was no loss to plaintiff. The summary judgment of the court was based upon the fact of the release and satisfaction of the indebtedness in exchange for a warranty deed.

The first assignment deals with plaintiff’s contention that she had a right to sue for impairment of her security.

When wrongful injury is done to the mortgaged premises, both owner and mortgagee may have a right of action. These two claims are sometimes joined in the same cause; but the bases of such claims are entirely different. The owner has an action for damages to his freehold which accrues when the injury to the land is suffered; whereas the claim of the mortgagee not in possession is a limited one, not for damage to the land as such but for impairment of the security for his loan. Although some authority can be found to the contrary, the general rule is that the mortgagee’s right of action for impairment of security is not dependent upon whether the mortgagor is insolvent. Also, there are cases holding that the mortgagee’s right of action is not complete until there has been a foreclosure and a deficiency is established thereby, but other authority (and we think the weight and most recent) is that the mortgagee has a right of action, depending of course upon the particular circumstances, when the injury is suffered and the security is thereby impaired. However, there has been indication by Missouri courts that they incline to the view that a deficiency must first be established by foreclosure.

But regardless of any question as to whether or when the mortgagee’s right of action accrues, all authorities agree that when the mortgage debt is discharged the right of action for impairment of the security cannot thereafter accrue (according to the theory of some cases) or is extinguished (according to the views of others); this because the right to sue for impairment is incidental or appendant to, and dependent upon, the right to the protection of and recourse to the security. It is the tail of the dog and, when the dog dies, the tail dies with it. When the debt is extinguished, the security is discharged and the right to maintain an action for impairment of such security is also extinguished.

It is not necessary in this decision to hold, and we do not wish to be understood as holding, that there never could be a situation where because of the peculiar circumstances the mortgagee might be forced to make some deal with the owner-mortgagor by way of compromise or extinguishment of the debt, in order to acquire title or possession so as to protect the interest secured and in order to lessen damage or expense; and still thereafter bring and maintain some action in reference to the injury to the land. As to that possibility, sufficient unto the day. It is not the proposition presented in this case. Appellant does not contend that the debt and the lien were not extinguished. It would therefore appear that plaintiff had no cause of action for injury to the mortgagee as such.

Appellant’s second assignment contends that there is a genuine issue as to whether plaintiff has a valid assignment from the mortgagor, and later grantor, Rector. This is obviously based on the freeholder’s cause of action as distinguished from the mortgagee’s right to sue. We have considerable doubt as to whether or not this contention is a complete departure from the theory of plaintiff’s petition; but on the assumption that, by a broad and liberal reading, the petition might be construed to include this (claim of the assignee of mortgagor) we will consider it.

That Rector could have assigned his cause of action is not in dispute (see Allstate Finance Corp. v. Zimmerman (5th Circuit) 296 F.2d 797). The question presented is, did he? It is not contended that the conveyance from Rector to plaintiff carried with it an assignment or transfer of the previously accrued cause of action for damages suffered by the grantor; and we think it could not be successfully so contended. But appellant says that the facts would justify an inference of oral assignment. In support of such contention she cites only one case, City of Maplewood ex rel. and to use of Citizens’ Bank v. Johnson, Mo.App., 273 S.W. 237. That case involved the transfer and sale of tax bills, for consideration and in the ordinary course of business, from a contracting corporation to the bank. The assignment was executed on behalf of the corporation by the secretary of the corporation (a question was raised as to the authority of the secretary to sign it); but the president of the corporation was actually present and the tax bills were delivered in his presence. We think this case furnishes little support for appellant here. In her deposition, plaintiff testified fully as to the transaction. She said she had no agreement with Rector. We are unable to find anything which indicates that either plaintiff or Rector at that time intended an assignment of the freeholder’s claim for damages, that they ever discussed it, or even thought of it. It may be that Rector should have assigned his cause of action, if he had one, to the appellant, but judging from his conduct (as related solely by the plaintiff), we are unable to find the basis for an inference of such good intention.

The final assignment is based on the contention that even though plaintiff had no such assignment, she might have obtained one prior to the trial of the case and thereby might become the real party in interest.

To sustain this contention, appellant cites (only) Glenn v. Thompson, 228 Mo.App. 1087, 61 S.W.2d 210. That was a case where one member of a physician partnership sued to collect a doctor bill. The appellant raised the question of proper parties plaintiff in that he was not protected from a suit by the other partner. At trial of the case, plaintiff introduced in evidence an assignment from his co-partner. The court simply held that the plaintiff was entitled to sue in his own name; and that the debtor was protected by the assignment. Without considering whether it was necessary in the foregoing case to take the assignment into consideration, we think the theory involved is entirely different. There the case involved, or may have involved, a debt owned by co-partners. As stated, supra, any cause of action for damages to the freehold belonged to the owner Rector; there was nothing joint about it.

If a suit can be instituted and maintained by one who has no cause of action but simply hopes to acquire one, what wide and wonderful vistas are opened to the hopeful, would-be litigant. A can sue B for debt, trespass, alienation, or what-not. It develops that B doesn’t owe and hasn’t wronged A. He did that to C; but A hopes that C will assign his claim to him, and on that basis seeks to hold B in court. Although hope enters into the bringing of many law suits, we know of no cause of action which can be stated and maintained simply on the basis of a hope and a prayer. The judgment is affirmed.

STONE and HOGAN, JJ., concur.

      . 69 C.J.S. Mortgages, § 338, p. 465; 37 A.L.R. Anno., 1120; Sloss-Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 166 So. 764, 767, 109 A.L.R. 385; Osborne on Mortgages, §§ 128, 129, p. 321; Allstate Finance Corp. v. Zimmerman (5th Circuit) 272 F.2d 323, 325; Craig v. Kansas City Terminal Ry. Co., 271 Mo. 516, 197 S.W. 141, 142. See Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S.W. 802.

      . 36 Am.Jur. Mortgages, § 356, p. 868; City of Toledo v. Brown, 130 Ohio St. 513, 200 N.E. 750, 752; E. H. Ogden Lumber Co. v. Busse, 92 App.Div. 143, 86 N.Y.S. 1098, 1100.

      . 59 C.J.S. Mortgages § 338, p. 467, Footnotes 55-58; 36 Am.Jur. Mortgages, § 357, p. 869, Footnote 20; Delano v. Smith, 206 Mass. 365, 92 N.E. 500, 501, 30 L.R.A.,N.S., 474; 2 Jones on Mortgages (7th Ed.) §§ 696 and 695(a) ; see Thompson on Real Estate, Yol. 9, § 4774, p. 469, § 4780., p. 512 et seq.; Planters’ Bank v. Lummus Cotton Gin Co., 132 S.C. 16, 128 S.E. 876, 878, 41 A.L.R. 592; Taylor v. McConnell, 53 Mich. 587, 19 N.W. 196.

      . Guaranty Savings & Loan Association v. City of Springfield, Mo.App., 113 S.W.2d 147, 151, 346 Mo. 79, 139 S.W.2d 955; see Girard Life Ins. Annuity & Trust Co. v. Mangold, 83 Mo.App. 281; Chouteau v. Boughton, 100 Mo. 406, 13 S.W. 877, 878; Heitkamp v. LaMotte Granite Co., 59 Mo.App. 244.

      . See authorities cited under Footnote 1; also 59 C.J.S. Mortgages, § 439, p. 676, and cases at Footnote 23; American Law of Property, §§ 16.160, 16.167; Section. 443.060 RSMol959, V.A.M.S.; Grace v. Gill, 136 Mo.App. 186, 116 S.W. 442; Kennerly et al. v. Burgess’ Adm’r, 38 Mo. 440, 443-444; McNair v. Picotte, 33 Mo. 57; see American Nat. Ins. Co. v. City of Port Arthur (C.C.A.Tex.) 62 S.W.2d 256; Benton Land Co. v. Zeitler, 182 Mo. 251, 81 S.W. 193(2), 70 L.R.A. 94.

      . 16 Am.Jur. Deeds, § 297, p. 607; 26 C.J.S. Deeds § 106d, p. 908; Lancaster v. Connecticut Mut. Life Ins. Co., 92 Mo. 460, 6 S.W. 23, 26; Turner v. Mo. Pac. Ry. Co., 130 Mo.App. 535, 109 S.W. 101; Hilton v. City of St. Louis, 99 Mo. 199, 208, 12 S.W. 657; Love v. Van Every, 18 Mo.App. 196, 203; see White v. Irvine et al., 324 Mo. 342, 22 S.W.2d 778; In re Witherill's Estate, 178 Or. 253, 166 P.2d 129.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. John J. VANDERTOLL et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    As Modified on Denial of Rehearing March 26, 1965.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Marshall B. Woodson, Jr., Louisville, for appellant.
    James Boswell Young, Louisville, for ap-pellees.
   STEWART, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court holding appellant, Commonwealth of Kentucky, Department of Highways, had no authority to condemn a certain parcel of land belonging to appel-lees, John J. Vandertoll and his wife, Mar-teyna, because, as found by the trial court: “No reasonable necessity is shown by appellant for the taking of land in excess of that shown on the maps of appellant for the requirements of the highway itself, and therefore, such taking constitutes an abuse of discretion.”

The property, consisting of 25 to 30 acres, is located on the edge of Seneca Park in the City of Louisville. It was acquired by appellees in February, 1962, from the Presbyterian Theological Seminary for $135,000. Since 1960, it has been known that Interstate Route 64, herein referred to as “1-64,” would eventually bisect this property, and that appellant was interested in ae-quiring a right of way across the tract. At the time of purchase appellees were aware of the possibility of condemnation of this acreage of land or a portion of it.

In March, 1962, appellant received permission from the United States Bureau of Public Roads to purchase the entire tract, with federal participation to be limited to that portion actually used for a right of way, including any damages assessed to the remainder. Appellant then offered appel-lees $135,000 for the entire tract which, as noted above, was the purchase price paid by appellees some two months before. Appel-lees countered with an offer to sell at $260,-000 which was rejected.

In May, 1962, appellant filed a condemnation proceeding in the Jefferson County Court, claiming the acquisition of the land was required for the public purpose of constructing and maintaining 1-64. The commissioners appointed appraised the land at $141,790, but the county court held appellant was not authorized to condemn the land because:

(1) Appellant did not bargain in good faith with appellees; and (2) no reasonable necessity was shown for the taking of land in excess of that strip actually to be used for the highway itself.

The first contention is groundless. The record shows conclusively appellant made appellee a bona fide offer of $135,000 for the property before this proceeding was begun.

Condemnation proceedings were begun pursuant to a work order issued by the Commissioner of Highways which stated “the interest of public will be best served by the acquisition of the entire lot or tract.” The work order further recited that the tract was to be used for the highway and other necessary auxiliary facilities, including but not limited to connecting and frontage roads, elevation of adjustments, road crossings by overpass or underpass, drainage installations and roadside parks.

It was brought out that a strip about 300 feet wide stretching across the middle of this tract would be utilized for the travel portion of the highway. Appellees claim, and the trial court agreed, there is no necessity for the condemnation of the remainder of the land and, therefore, the attempted condemnation of the tract as a whole is not authorized.

KRS 177.081 states, in part: “ * * * [T]he condemnor’s decision as to the necessity for taking the property will not be disturbed in the absence of fraud, bad faith, or abuse of discretion.” Commonwealth v. Burchett, Ky., 1963, 367 S.W.2d 262, in discussing this statutory provision, held that when the department of highways by official order determines that an acquisition is necessary a condemnee, in order to defeat such an acquisition, has the burden of proving fraud, bad faith, or abuse of discretion.

Here, appellant proved that plans for the highway are not “finalized.” Commissioner of Highways, Henry Ward, testified the land would be used for a roadside park and rest area and that a pedestrian crosswalk is contemplated at this site. He stated that the department of highways wishes to preserve, as far as possible, the park-like atmosphere of the area, for the reason that it is situated next to Seneca Park. He also mentioned that the median strip of the travel portion of the highway might be extended from the usual 45 feet to 60 feet.

Previous cases on this subject, such as the Burchett case, supra, Craddock v. University of Louisville, Ky., 303 S.W.2d 548, and Perry County Board of Education v. Deaton, 311 Ky. 227, 223 S.W.2d 882, all uphold the view that the courts cannot review the exercise of discretion of a condemning body, unless such body has acted arbitrarily or in excess of its authority.

In the closing portion of the opinion in the Burchett case, supra, it is pointed out that the judicial branch of gov-eminent may not be called upon to question the discretionary power of an agency of the executive branch in order to determine what is in the public interest, including what particular property is needed in connection with a valid public project, unless there has been such a clear and gross abuse of discretion as to violate Section 2 of the Constitution of Kentucky, which section is a guaranty against the exercise of arbitrary power.

In the case at hand, appellees failed to establish even a scintilla of fraud, bad faith, or abuse of discretion upon the part of appellant in its proceeding to condemn appellees’ tract of land. It follows that the finding of the trial court was clearly erroneous under CR 52.01 in determining that necessity did not exist for taking the entire acreage.

Wherefore, the judgment is reversed for further proceedings not inconsistent with this opinion.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. Paul W. GARDNER et al., Appellees.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Edmond H. Tackett, Prestonburg, for appellant.
    Rudy Yessin, Frankfort, Marcus Mann, Salyersville, J. K. Wells, Paintsville, P. H. Vincent, Ashland, Cordell H. Martin, Hind-man, D. G. Boleyn, Hazard, Cassie J. Allen, Prestonsburg, for appellees.
   DAVIS, Commissioner.

The appellees obtained judgment for $30,000 for lands acquired by the appellant in this condemnation action. The appellant Department of Highways presents three grounds for reversal: (1) The admission of incompetent and irrelevant evidence, (2) the verdict is excessive and not supported by sufficient evidence of probative value, and (3) an erroneous instruction was given.

Before the taking the appellees owned a boundary of land containing 359 acres. It is situated about two miles from Salyers-ville; the tract did not abut any public roadway before the taking. It lay on Coal Fork of Gardner Branch, approximately a thousand feet from existing Kentucky Highway 30. Such access as had ever been used to the tract was along a trail, partly in a creek bed, traversing properties owned by two others. There is no showing that any deeded or prescriptive entranceway existed so as to afford access to the public highway system. No building of any kind was on the entire 359 acres. No crop had been raised on the land for several years. According to witnesses for the appellant (and evident from the aerial photograph of the land in the record) all of the land was hillside, second and third growth timber, except six to twelve acres of crop land.

Witnesses for the appellant gave before market values ranging from $6,800 to $7,-100, with after market values ranging from $500 to $545. The range as to difference in before and after values was $6,255 to $6,600, according to witnesses for appellant. On the other hand, one of the owners gave a before value of $75,000 with no after value, while other witnesses for appellees gave before values ranging from $28,000 to $31,000. None of appellees’ witnesses gave any after value.

There were three abandoned gas wells on the land at the time of taking. It was shown that the sulphur content of gas from these wells ranged from 8.6 grains to 40.7 grains; a qualified witness for appellant testified that sulphur in gas exceeding one or two grains renders it noncommercial by present market standards.

There is some coal under this land. For the appellant it was shown that the coal was not in commercially significant quantity. For appellees there was evidence that the coal is there in sufficient quantity to be of considerable value. Appellees also adduced evidence that the “sour” gas wells could be rendered commercially “sweet” at relatively minor cost. It was explained that the sulphur gas is found in the Corniferous formation and the “sweet” gas emanates from the Big Six sand. A witness for ap-pellee told how a packer could be set on top of the Big Six sand to shut off the flow of gas from the Corniferous formation. The same witness for appellees further said that he did not know whether the gas from the three wells had come from Big Six sand or Corniferous formation. The witness conceded that if the gas came from the Corniferous formation, “there wouldn’t be anything you could do about it.” This witness said-that some four or five years before the taking he had been associated with a group planning to buy the gas rights from appellees, and that their plan had included a “cleaning plant” at cost of $40,000.

The entire 359 acres was assessed at $660 before the taking. No coal mining is being done in the area nearby. No crop has been raised on the land for years. The three old gas wells have not produced commercially for about ten years. The evidence as to the merchantable quality of the timber is not satisfactory; one witness for appellees was improperly permitted to testify that he had offered $5,000 for the timber rights on the entire tract. The tract had no direct access to any road, and was entirely unimproved. The acquired right of way consists of 17.37 acres in fee, plus 1.19 acres in three temporary easements. The taking is a strip extending about 5,900 feet through the farm, with average width of 170 feet or more. The highway will be nonaccess and severs the boundary in two. To all intents and purposes, what is left is “landlocked.” (Of course, it was substantially “landlocked” to begin with.) The fact that the remaining land is “landlocked” would hardly render it valueless if there had been substantial value before the taking. The right to acquire an outlet (for marketing coal and timber, at least) is accorded by KRS 381.-580. It overtaxes credulity to suppose that appellees would abandon as worthless more than 340 acres possessing the enormous values and potentials ascribed to it before the taking.

With respect to the coal, the appellee owner professed that at least 250 acres of the land is underlain with coal. He was not able to explain how this could be true in face of core drills to the contrary. However, on cross-examination he said that he had “stripped some coal up there a year or two ago. I started in and the coal business went bad — stripping that foot coal.” He also admitted, “I am not so familiar with the coal business, to tell the truth.” Ap-pellees offered witness Bailey, who had seen one place on the land, some five or six years ago, where a 36 inch seam of coal was exposed. He could not remember where the spot was, nor did he analyze the coal. He assumed that there must be a 36 inch seam under some unknown quantity of the surface; he opined that “you could safely figure 100 ton per inch, per acre, would be mineable * * *.” He admitted that there is no deep mining in the area, although it was shown that seams of about five inches in thickness lie some 60 to 70 feet below the surface. The weakness of this testimony is obvious.

We think no more need be said. The verdict is so clearly excessive as to appear, at first blush, to have been given under the influence of passion or prejudice, in disregard of the evidence and instructions of the court. CR 59.01(4). Neither is the verdict supported by evidence containing probative value of the quantum required. See Com., Dept. of Highways v. Gearheart, Ky., 383 S.W.2d 922; Com., Dept. of Highways v. Lyons, Ky., 364 S.W.2d 336; Com., Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714, and the authorities therein cited and discussed. Accordingly, we must reverse the case on the grounds stated.

Since there likely will be another trial, we briefly discuss the other matters presented. Neither the minerals or timber should be valued separately. Com., Dept. of Highways v. Cardinal Hills Nursery, Ky., 380 S.W.2d 249; Gulf Interstate Gas Co. v. Garvin, Ky., 368 S.W.2d 309.

With respect to the instructions upon a new trial, the court will be guided by the rule set forth in Com., Dept. of Highways v. Priest, Ky., 387 S.W.2d 302 (decided November 20, 1964).

The judgment is reversed for proceedings consistent with the opinion.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Elizabeth R. SMITH, Appellee.
    Court of Appeals of Kentucky.
    March 19, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Deddo G. Lynn, Lexington, for appellant.
    Thomas D. Shumate, Irvine, for ap-pellee.
   MILLIKEN, Judge.

The Department of Highways has appealed from a judgment remanding a claim to the Board of Claims for reconsideration. The Board of Claims dismissed the claim upon the premise that the case was controlled by the doctrine of permanent structures and was brought after the applicable one year statute of limitations had expired. KRS 44.110.

In 1954 the claimant had deeded a right of way for the construction of the road across the back of her lot in consideration of the payment of $400 and later had signed a release of all claims after the construction of the road and the grading of her back yard toward the fill on which the new road was built. The present claim arose in 1960 out of flooding of her yard and damage to her furnace and home occasioned allegedly by the negligent construction of the road, specifically the negligent failure of the Department to continue or extend the curb along the road in back of her land which would steer water more effectively into a concrete drain or flume and thus avoid the flooding of the claimant’s property.

We think the deed and release are not susceptible to the interpretation that they barred a claim of this nature, but rather that they barred any claim for damage caused by the proper construction of the road. The road itself is a more or less permanent structure, but the cause of the flooding complained of here appears to be remediable through a completion or extension of the curbing along the highway which would divert the collected surface waters into a concrete flume designed for that purpose. As it is, the added drainage flowing down the road spills over the embankment into the claimant’s yard rather than into the flume designed to contain it. If “the trouble may be remedied at a reasonable expense (as alleged), it may be regarded as temporary, but if the trouble cannot be so remedied, it should be regarded as permanent; and this is a question for the jury” — the Board of Claims here. Madisonville, H. & E. R. Co. v. Thomas, 148 Ky. 131, 146 S.W. 33. See, also, Department of Highways v. McKinney, 291 Ky. 1, 162 S.W.2d 179 and Lynn Mining Company v. Kelly, Ky., decided March 5, 1965. We think the Circuit Court properly remanded the case to the Board of Claims for a determination of whether the extension of the curbing can be done at a reasonable cost and will correct the recurring condition complained of and, if the Board of Claims so finds, it would be justified in granting the claimant compensation for the claimed damage to her property.

The judgment is affirmed.


text:
    WUEST BROS., INC., Appellant, v. LIBERTY NATIONAL BANK & TRUST COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Robert P. Hobson, Woodward, Hobson & Fulton, Louisville, for appellant.
    William A. MacKenzie, William B. Peden, Jones, Ewen & MacKenzie, Louisville, for appellee.
   STEWART, Judge.

In this case Wuest Bros. Inc. (herein called “Wuest”), sought to recover $19,-912.99 from Liberty National Bank & Trust Company (herein called “the bank”) on seventeen forged checks. At the conclusion of all the evidence, a motion was made by Wuest for a directed verdict and, this motion being overruled, the case was submitted to the jury on the question of whether Wuest was negligent in examining the canceled checks returned to it and in failing to notify the bank of any of the forgeries. The jury found for the bank, and Wuest appeals.

Beginning with the date of December 19, 1958, Wuest’s bookkeeper, Ben H. Williams, forged checks over a period of approximately eighteen months for the total amount of $23,282, the last check being dated June 2, 1960. All of these checks were drawn on Wuest’s account in the bank.

The forgeries committed by Williams were done by his tracing onto Wuest’s personalized business checks the signatures of persons duly empowered to sign checks on Wuest’s account. For sixteen of these he copied the signature of G. E. Wuest and on one he copied the signature of W. D. Wuest. Both of these persons were authorized by Wuest to sign its checks.

After the first forgery on December 19, 1958, which was in the amount of $725 and which was the first of the forged checks received by the bank, the latter delivered to Wuest a monthly statement of Wuest Bros/ checking account. This statement showed the deduction from its account of the check of $725. At the same time, it delivered the canceled checks for the month of December, 1958, among which was this forged check.

The bank continued to deliver to Wuest on the first of each month the customary bank statements; and it returned all of the seventeen forged checks in due course with the respective monthly statements covering the months in which they were written and paid by it.

At no time during the eighteen-month period in which the series of forgeries occurred did Wuest notify the bank of any of the seventeen forgeries. It was only when one of the owners of Wuest died and an audit was made of the accounts of the company that the forgeries were discovered. Demand was made on the bank on July 18, 1960, to restore the amount in controversy to Wuest’s account in the bank. Upon the refusal of the bank to make good the loss, this action was filed. At the trial it was stipulated Wuest had recovered $3369.01 from the forger, making its net loss $19,912.99.

Wuest complains there is no evidence the bank exercised any degree of ordinary care to determine whether the seventeen forged checks, or any of them, were genuine. The bank maintains a depositor is under a duty to his bank to examine canceled checks and statements received from the bank and to notify the bank promptly of any irregularities in the account; and, if a depositor disregards this duty, any further losses after the first forgery occurring as a result of such omission must be borne by the depositor unless the bank itself is guilty of contributory negligence.

The bank produced three experts in the banking field, other than its own officer who supervised the employees who handled the Wuest checks. These four witnesses compared the signatures on the forged checks with the genuine signatures of G. E. Wuest and W. D. Wuest written by them on the bank’s signature card. They testified the forged signatures had been so skillfully traced on checks customarily used by Wuest in its business, and were so similar to signatures admitted to be authentic, that the forgeries could not be reasonably detected by the employees in the normal course of banking business. This evidence is undisputed.

Wuest contends this evidence should not have been admitted, because it was based upon an inspection of the checks four years after they were cashed. No authority is cited to sustain this assertion. Nevertheless, it appears to us an opinion as to the similarity of signatures, and as to whether the forgeries were so adept as to be undetectable by bank personnel, could be based upon an examination of the documents involved.

The trial court concluded, under the facts presented, that Wuest failed to establish a lack of ordinary care upon the part of the bank in paying all the checks. As we have noted, the jury was instructed to find for the bank if it determined Wuest was negligent in examining the bank statements and the canceled checks returned to it each month, in order to detect if any such checks were forged. However, the jury was directed to award Wuest the sum of $725, the first check forged, even if it found Wuest negligent. We are in accord with the trial court’s disposition of this case.

The bank’s defense is based upon the rule stated in 9 C.J.S. Banks and Banking § 356d(l), p. 743:

“Although there are authorities to the contrary, the weight of authority, and perhaps of reason, supports the view that, when a depositor’s pass book has been written up and returned to him with the canceled checks which have been charged to his account, it is his duty to examine such checks within a reasonable time and to report any forgeries or alterations which he has discovered, failing in which he cannot, if his failure has resulted in detriment to the bank, dispute the correctness of the payments shown, and the account as rendered becomes an account stated between the parties. * * *”

These principles are in harmony with those incorporated in KRS 355.4-406(1), (2) (a), (b) and (3) of the Uniform Commercial Code, which became effective July 1, 1960, and which now unquestionably determine the liability of a bank to a depositor in a forgery case like the one before us.

Wherefore, the judgment is affirmed.