author: STONE, Judge.

text:
    MISSOURI PUBLIC SERVICE COMPANY, a corporation, Plaintiff-Appellant, v. BARTON COUNTY ELECTRIC COOPERATIVE, a corporation, Curless Building, Inc., and Fun Lanes, Inc., Defendants-Respondents.
    No. 7963.
    Springfield Court of Appeals. Missouri.
    Jan. 30, 1962.
    (Motions for Rehearing or to Transfer Overruled Feb. 13, 1962)

      A. E. Elliott, Nevada, E. i£. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for plaintiff-appellant.
    Combs & Combs, Lamar, for defendants-respondents.
   STONE, Judge.

In this equitable action, plaintiff, Missouri Public Service Company, seeks to enjoin defendants, Barton County Electric Cooperative (hereinafter called the Cooperative), Curless Building, Inc. (hereinafter called Curless), and Fun Lanes, Inc. (hereinafter called Lanes), from erecting or maintaining any facilities for the purpose of enabling the Cooperative to supply electric energy for use in connection with operation of a bowling alley by Curless and Lanes in a newly-constructed building just inside the west corporate boundary of the Village of Lamar Heights, Missouri (hereinafter referred to as the Village). At the close of plaintiff’s evidence, the trial court found that plaintiff had “failed to produce evidence to sustain the allegations of plaintiff’s petition or to show that the plaintiff is entitled to the relief prayed” and, upon their motions, entered judgment for defendants, from which plaintiff has appealed.

Plaintiff is a public utility engaged in the production, distribution, -transmission and sale of electric energy in certain counties of the State of Missouri, including Barton County where plaintiff operates under a certificate of convenience and necessity granted by the Public Service Commission of Missouri under date of January 18, 1938. The Cooperative, organized under “The Rural Electric Cooperative Law” [now Chapter 394, RSMo 1959, V.A.M.S.], is engaged in the production, distribution, transmission and sale of electric energy in Barton County and, by reason of its cooperative status, is within the jurisdiction of the Public Service Commission only to the limited extent provided in V.A.M.S. § 394.160. By order of the County Court of Barton County on May 21, 1951, the Village of Lamar Heights was incorporated [V.A.M.S. § 80.020] and its first board of trustees, consisting of five members, was appointed. V.A.M.S. § 80.040. It is said (without contradiction) that the population of the Village was then “approximately 100”; and, from the last United States census of which we take judicial knowledge [Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 246(4); State at inf. McKittrick ex rel. Martin v. Stoner, 347 Mo. 242, 146 S.W.2d 891, 894(11); State ex rel. Alton R. Co. v. Public Service Commission, 334 Mo. 985, 70 S.W.2d 52, 54(6)], we find that in 1960 the inhabitants of the Village numbered 113. The Village lies against, and as if it were a protuberance on, the west side of the City of Lamar. The plat of the Village shows that its corporate limits encompass an irregular area of not less than 320 acres, elongated north and south for a distance of one and one-half miles and lying on both sides of north-and-south U. S. Highway 71. The east boundary of the Village (which is also the west boundary of the City of Lamar) is a serpentine north-and-south line following the meanderings of Muddy Creek and located 100 feet east of the center thereof. The west boundary of the Village is á straight north-and-south line located 256 feet west of, and running parallel with, the center line of Highway 71.

Prior to incorporation of the Village in 1951, plaintiff had rendered electric service to inhabitants of the area and, after incorporation, continued to do so. Plaintiff sought and (so it insists) obtained “a nonexclusive franchise” in the Village “by enactment and approval of Ordinance No. 1” (hereinafter .referred to as the ordinance) at a meeting of the board of trustees of the Village held on March 27, 1953, and by plaintiff’s subsequent written acceptance of the ordinance on or about April 3, 1953. On timely objection, the ordinance was excluded from evidence by the trial court because the minutes of said meeting of the board of trustees did not reflect compliance with the mandatory requirements of V.A.M.S. § 80.110 that “no bill shall become an ordinance unless on its passage a majority of all the members of the board of trustees vote therefor, and the yeas and nays be entered upon the journal.” Of this, more anon. We note briefly that the basic grant, which the ordinance purported to bestow upon plaintiff, its successors and assigns, was “the -right, privileges and authority to construct, maintain and operate within the corporate limits ... of the Village ... an electric light, heat and power system in, along, over, under and across the streets, avenues, alleys and public places in said municipality for the transmission, distribution and sale of electric energy, together with the right, privilege and authority to erect, construct, maintain and operate all necessary poles, conductors, wires, conduits and apparatus in, along, over, under and across said streets, avenues, alleys and public places for such purposes.” Other sections of the ordinance provided that the foregoing grant should remain in full force and effect for a term of twenty years, and that, “as additional consideration of the rights and privileges granted” and in lieu of all taxes other than ad valorem taxes, plaintiff would, by acceptance of the ordinance, become obligated to pay to the Village, upon computations at stated times, five per cent of the gross revenue derived by plaintiff from electric service in the Village, excluding ■revenue derived from municipal service or industrial consumers.

Although the “franchise” which the ordinance purported to confer was essentially a grant of authority to occupy the streets, avenues, alleys and public places in the Village for the contemplated purpose of enabling plaintiff to supply the inhabitants of the Village with electric energy, the only traveled or platted ways in the Village were north-and-south U. S. Highway 71, intersecting east-and-west U. S. Highway 160, and one road branching off Highway 71 — “we call it a street” said the chairman of the board of trustees. However, regardless of the nature or extent of the benefit anticipated by or accruing to plaintiff by reason of purported enactment of the ordinance, thereafter plaintiff made, and the Village accepted, the periodic five per cent payments provided by the ordinance. In the municipal records before us, these payments were identified at different times as a “royalty,” as an “allowance for the use of streets and alleys,” and as a “commission.” But, by whatever names they were designated, the payments constituted in effect the sole source of income for the Village (the only other income after March 27, 1953, having been $8 from “cash contributions” reported on October 26, 1953); and, after rumors of the controversy brewing between the parties to this action had come to the then trustees, their apparent gratitude for plaintiff’s payments was reflected by this entry in the minutes of their meeting held on August 8, 1960: “The five per cent, commission we are receiving from the Missouri Public Service Co. has certainly been helpful and all the trustees agree that Missouri Public Service Co. has rendered us satisfactory service.”

On July 18, 1960, Curless acquired a rectangular tract with a frontage of 331 feet, north and south, along the west side of Highway 71 inside the corporate limits of the Village, and with a depth of 397 feet 5 inches, east and west. Since the front or east line of the Curless tract (which is also the west line of the highway right of way) is 60 feet west of the center line of Highway 71 and since the west corporate boundary of the Village is only 256 feet west of the highway center line, the front 196 feet ■of the Curless tract is inside the Village while the remainder of that tract (i. e., the back or west 201 feet 5 inches) is outside. When this action was instituted on August 11, 1960, there was being constructed on the Curless tract a building approximately 150 feet long, north and south, and 52 feet deep, east and west, so situated that it was entirely inside the Village but its -rear or west side was only 17 feet east of the west corporate boundary of the Village. This litigation was precipitated by the Cooperative’s action in constructing a “new power line 2050 feet long” to “a dead-end pole” set on the Curless tract behind or west of the new building at a point only 21 feet outside or west of the west boundary of the Village, at which pole the Cooperative sold, metered and delivered electric energy for use in the new building inside the Village. Plaintiff’s theory is that it has a franchise by virtue of the enactment of the ordinance and plaintiff’s acceptance thereof; that, although such franchise is not exclusive in that the Village might grant similar rights to another, it is exclusive against all who may assume to exercise such rights without legal authority, that, as the holder of such franchise, plaintiff is entitled to injunctive protection against all illegal competition; and that the action of instant defendants falls within that prohibited category.

However, as plaintiff recognizes, this theory depends upon the existence and validity of the ordinance which is said, upon acceptance, to have conferred and constituted the franchise. V.A.M.S. § 80.-080 applicable to towns and villages imposes upon the board of trustees the requirement that “they shall keep a journal of their proceedings.” This is a mandatory duty, and the acts and ordinances of a village are evidenced, and may be established, only by the entries and record in the journal. It “is the one indispensable record of birth and existence. It is the book of life for all ordinances, and, unless their title to existence is clear in that book they must remain in limbo. Their lot is with the lost.” City of New Franklin ex rel. Lynch-McDonald Const. Co. v. Edwards, Mo.App., 23 S.W.2d 235, 237; Village of Beverly Hills v. Schulter, 344 Mo. 1098, 1105, 130 S.W.2d 532, 536. In determining what this “indispensable record” must show to establish the “birth and existence” of an ordinance, we turn to V.A. M.S. § 80.110 which provides, in part, that “no bill shall become an ordinance unless on its passage a majority of all the members of the board of trustees vote therefor, and the yeas and nays be entered upon the journal.” Emphasizing that this requirement also is mandatory, our appellate courts frequently have issued the blunt warning that a vote on an ordinance is not a vote until the yeas and nays are recorded in the journal.

The only record book kept by the Village (insofar as the transcript discloses) was a “loose-leaf notebook,” which contained minutes of meetings of the board of trustees, ‘‘financial .reports” and “election results.” Although the clerk, a witness for plaintiff, who produced this notebook, and opposing counsel alike called it the “minute book,” all obviously have regarded and treated it as the “journal” required to be kept by the board of trustees [V.A.M.S. § 80.080] and we shall do likewise. With the existence and validity of the ordinance (upon which plaintiff relies) depending upon what was entered in the journal with respect thereto, we quote in toto the handwritten minutes of the meeting of the board of trustees held on March 27, 1953 (identified as defendants’ exhibit "E"), when (so-plaintiff says) the ordinance was passed and approved:

“A meeting of the Board of Trustees was held March 27, 1953, at Brother Adams Cafe for the purpose of considering Ordinance Number One. This ordinance provides for a five percent royalty from Missouri Public Service Commission on gross revenue, except Rock Haven Courts (commercial rates) or any street lighting or municipality. (A record of this ordinance is in the files of the secretary-treasurer). Mr. Sawyer, representative of the Missouri Public Service Company, is not asking for an exclusive franchise but for permission to cross city property rights and to set poles on city property. Payments of royalties will be made on each July first, hereafter.
“Financial Report
“Bank balance.$22.00
“Respectfully submitted,
Harold Tuck /s/ sec’y.”

Obviously the quoted minutes do not satisfy the mandatory requirements of V.A.M.S. § 80.110 [see the cases collected. in footnote 4], and plaintiff’s counsel do not now so contend. But, their present position, in the language of their brief, is that the quoted minutes (exhibit “E”), “together with the ordinance and the attachments thereto, constitute substantial compliance with the statute.” (All emphasis herein is ours.) Their reference to “the ordinance and the attachments thereto” is to plaintiff’s exhibit 5 (excluded upon defendants’ objections) which includes and is composed of the following, stapled together in the listed order: (1) a typewritten copy of Ordinance No. 1 concluding with recitals of purported passage and approval on March 27, 1953, and hearing the signatures of Thomas Howard, chairman of the board of trustees, and Harold L. Tuck, village clerk; (2) a separate typewritten page quoted marginally, with numerous blanks filled in handwriting (italicized in the marginal copy), but with no caption or signature on this page; (3) another typewritten page also quoted marginally, with the ordinance number inserted in handwriting but again with no caption or signature on this page; and (4) another typewritten page captioned “CERTIFICATE” with some of the numerous blanks filled in handwriting (italicized in the marginal copy), and bearing the signature of Harold L. Tuck, village clerk, and the word “seal” written and circled by hand.

Witness Sawyer, plaintiff’s “municipal relations director” for more than twenty-five years, brought to the village board meeting of March 27, 1953, the papers collectively identified and offered as plaintiff’s exhibit 5, but the record does not disclose when, where, by whom, or for what reason these papers were stapled together. In any event, exhibit 5 was “kept with the minutes,” not attached to the notebook rings or fastened in the notebook, but perhaps laid loosely inside the notebook cover. (We find no evidence that exhibit 5 was kept in a pocket of the notebook cover, as suggested by plaintiff’s counsel, although in our view of the matter that would not have been significant anyway.) In the course of trial, plaintiff’s counsel insisted that item 2 in exhibit 5 (purporting to reflect the procedure followed with respect to the ordinance and the yeas and nays upon final passage) “is a part of the minutes” — “they are the minutes of the meeting”; and the same contention is inherent in plaintiff’s appellate position.

The trial court refused to follow plaintiff’s counsel and, for at least three reasons, we likewise decline to do so. In the first place, the village clerk, called as a witness for plaintiff, agreed on cross-examination that the minutes as recorded in the journal and signed by the clerk (exhibit “E”) were “the only minutes of the meeting of March 27, 1953” — “I know of no other minutes.” In the second place, the language of those minutes (exhibit “E”) disputes and denies plaintiff’s contention, in that the minutes dismiss the procedural aspect of presentation and passage of the ordinance with the terse comment, interpolated in parentheses, that “A record of this ordinance is in the files of the secretary-treasurer” with no suggestion that such unidentified “record” or “files” were to become or be considered as a part of the minutes. Finally, the “Certificate” in exhibit 5 (item 4 thereof) also disputes and denies plaintiff’s contention, in that it is limited and confined to attestation “that the foregoing is a true,, correct and complete copy of Ordinance-No. 1, read three times and passed in the manner required by law . . . and recorded on the 27th day of March, 1953, as-said ordinance appears from the records in my office; that the vote of the Board of Trustees on said ordinance as cast and recorded on the records in my office was . . . ” and does not state or suggest that any portion of “the foregoing” constituted or was intended to constitute either a part of the minutes of the meeting of the board of trustees held on March 27, 1953, or a part of the “minute book” or journal, or for that matter a part of “the records in my office.”

From the transcript as a whole, we are in agreement with this succinct but adequate statement of defendants’ counsel in the course of trial: “That (referring to-exhibit 5) is a certified copy of what the minutes should show and it is not the-minutes.” V.A.M.S. § 80.110 clearly contemplates and uncompromisingly demands that “the yeas and nays be entered upon the-journal.” This is a legislative mandate-which we may not abrogate, annul or-abolish by judicial fiat, and which we will' not render nugatory or fritter away by artifice, device or subterfuge. “If the ordinance in fact was passed and no record, was made of the matter, then plaintiff is in the unfortunate condition of every other suitor in court who makes a claim that he-cannot support.” City of Brunswick ex rel. Barkwell v. Scott, 219 Mo.App. 45, 49, 275 S.W. 994, 995; City of New Franklin ex. rel. Lynch-McDonald Const. Co. v. Edwards, supra, 23 S.W.2d loc. cit. 237. Without further belaboring the subject, we-conclude that plaintiff did not establish the existence and validity of the ordinance,, and that the trial court did not err in excluding exhibit 5 and in entering judgment for defendants.

Plaintiff also complains of error in the-overruling of its “Motion for an Order Directing the Village Clerk of Lamar Heights, Missouri, to Correct the Public: Record Nunc Pro Tunc,” which said motion was filed on December 2, I960, more than ten weeks after judgment had been entered on September 21, 1960. The instant record strongly suggests that, in fact, the ordinance was passed and approved at the meeting of the board of trustees held on March 27, 19S3, and that the then clerk inadvertently failed to enter upon the journal the recitals and record as to the procedure followed in presentation and passage of the ordinance, including the yeas and nays upon final passage; and recitals in subsequent minutes persuasively indicate that the village officials in good faith have entertained and acted on the belief that a “franchise” was granted to plaintiff and have made no effort to deny, repudiate or evade such grant. So, it may be that, in a direct proceeding to make the record speak the truth, plaintiff might establish that the board of trustees of the village actually did that which is recited in item 2 of plaintiff’s exhibit S and might obtain an appropriate decree for recordation of that which, in fact, was done but was not recorded in the journal. But “(t)he rule is well settled that where the statute requires a municipal corporation to keep a record of its corporate acts, such acts, when called in question in a collateral proceeding, can be shown only by the records of the corporation.” State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 299, 23 S.W.2d 167, 171(7); Fulton v. City of Lockwood, Mo., 269 S.W.2d 1, 6; State ex rel. Marcum v. Sappington, Mo.App., 261 S.W.2d 385, 389(2). That rule is applicable and controlling here. Fulton v. City of Lockwood, supra, 269 S.W.2d loc. cit. 5(7), 6(9), and authorities there cited. The cases cited by instant plaintiff [Cunningham v. City of Butler, Mo., 256 S.W.2d 767, 768(2); Frago v. City of Irondale, 364 Mo. 500, 263 S.W.2d 356, 361(5)], in each of which the city was a party and itself sought leave to make nunc pro tunc correction, do not support this assignment of error. Plaintiff’s after-trial motion for nunc pro tunc correction properly was overruled.

The judgment should be and is affirmed.

RUARK, P. J., and McDOWELL, J., concur.

      . Cf. State ex inf. Jones ex rel. City of St. Louis v. Light & Development Co. of St. Louis, 246 Mo. 618, 650, 152 S.W. 67, 75; State ex inf. of McKittrick ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 399, 96 S.W.2d 607, 613, 106 A.L.R. 1169, 1179; Kansas City Power & Light Co. v. Town of Carrollton, 346 Mo. 802, 812, 142 S.W.2d 849, 854 (8, 9).

      . Holston River Elec. Co. v. Hydro Elec. Corp., 17 Tenn.App. 122, 66 S.W.2d 217; City of Campbell, Mo. v. Arkansas-Missouri Power Co., 8 Cir., 55 F.2d 560, 562(2, 3); Missouri Public Service Corp. v. Fairbanks, Morse & Co., 8 Cir., 95 F.2d 1, 3(1); Arkansas-Missouri Power Corp. v. City of Kennett, Mo., 8 Cir., 113 F.2d 595, 596(1). See also Iowa Southern Utilities Co. v. Cassill, 8 Cir., 69 F.2d 703, 704(1); Kansas Gas & Elec. Co. v. City of Independence, Kan., 10 Cir., 79 F.2d 32, 35(3), 100 A.L.R. 1479, rehearing denied 10 Cir., 79 F.2d 638; Frost v. Corporation Commission of State of Oklahoma, 278 U.S. 515, 521, 49 S.Ct. 235. 237, 73 L.Ed. 483, 488(2, 3); 64 C.J.S. Municipal Corporations § 1735, p. 158; 43 C.J.S. Injunctions, § 97, loe. cit. 602.

      . See the following cases dealing with the same mandatory obligation imposed by statute [now V.A.M.S. § 79.150] upon the board of aldermen in a city of the fourth class: Fulton v. City of Lockwood, Mo., 269 S.W.2d 1, 5(5, 6); State ex rel. Barkwell v. Trimble, 309 Mo. 546, 551, 274 S.W. 683, 684; Lebanon Light & Magnetic Water Co. v. City of Lebanon, 163 Mo. 254, 259-260, 63 S.W. 811, 812; Eureka Fire Hose Mfg. Co. v. City of Portageville, Mo.App., 106 S.W.2d 513, 516; City of New Franklin ex rel. Lynch-McDonald Const. Co. v. Edwards, Mo.App., 23 S.W.2d 235, 237; City of Brunswick ex rel. Barkwell v. Scott, 219 Mo.App. 45, 48-49, 275 S.W. 994, 995(1).

      . Village of Beverly Hills v. Schulter, 344 Mo. 1098, 1105-1106, 130 S.W.2d 532, 536-537; Krug v. Village of Mary Ridge, Mo.App., 271 S.W.2d 867, 871(6); Frago v. City of Irondale, 364 Mo. 500, 507, 263 S.W.2d 356, 361(4); State ex rel. Barkwell v. Trimble, supra, 309 Mo. loc. cit. 551, 274 S.W. loc. cit. 684; Steiger v. City of Ste. Genevieve, 235 Mo.App. 579, 584, 141 S.W.2d 233, 236(1, 2); City of New Franklin ex rel. Lynch-McDonald Const. Co. v. Edwards, supra, 23 S.W.2d loc. cit. 237. See also Monett Elec. Light, Power & Ice Co., Inc. v. City of Monett, Mo., 186 F. 360, 366-371(5), appeal dismissed 226 U.S. 624, 33 S.Ct. 110, 57 L.Ed. 386.

      . “It was moved by Jack Gaiothrop and seconded by Thomas Howard that Ordinance No. 1 be introduced and read one time in full. Motion carried. Ordinance No. 1 was read one time in full.
      “It was moved by Harold Tuck and seconded by Thomas Howard that the rules be suspended and that Ordinance No. 1 be placed on second and third readings by title only. Motion was carried by unanimous vote. Ordinance No. 1 was read the second and third times by title only.
      “It was moved by Harold Tuck and seconded by Mrs. Claude Adams that Ordinance No. 1 be placed upon final passage. Thereupon Ordinance No. 1 was placed upon final passage with the following vote:

        “Mrs. Claude Adams Yes Mr. Jack Gaiothrop Yes

        Mrs. Richard Miller Yes Mr. Harold Tuck Yes

        Mr. Thomas Howard Yes

      "Ordinance No. 1 was declared adopted.”

      . “MOTION NO. 1.

        “1 move that Ordinance No. 1 be introduced and read one time in full.

        “MOTION NO. 2.

      “I move that the rules be suspended and that Ordinance No. 1 be placed on second and third readings by title only.

        “MOTION NO. 3.

      “I move that Ordinance No. 1 be placed upon final passage.”

      . “CERTIFICATE
      “STATE OF MISSOURI ]

      COUNTY OF BARTON J ss
      “I, Harold Tuck, the duly qualified and acting Village clerk of the Village of Lamar Heights in said County of Barton, and the official custodian of the records of the said Village, do hereby certify that the foregoing is a true, correct and complete copy of Ordinance No. 1, read three times and passed in the manner required by law at a meeting of the Board of Trustees of said municipality, held on the 27th day of March, 1953, approved and signed on the 27th day of March, 1953, and recorded on the 27th day of March, 1953, as said ordinance appears from the records in my ofiice; that the vote of the Board of Trustees on said ordinance as cast and recorded on the records in my office was as follows:

        “Mrs. Claude Adams — Yes Jack Gawthrop — Yes

        Mrs. Richard Miller — Yes Harold Tuck — Yes

        Thomas Howard — Yes
      “Given under my hand and the corporate seal of said municipality this 27th day of March, 1953. „„ , , ,
      , , , ‘Harold L. Tuck /s/

      Village Clerk (Seal)”

      . E. g., “since we have a franchise with Mo. Public Service Company, etc.” in the minutes of the meeting of the board of trustees held on April 19, 1957; and “since Missouri Public Service Company has the franchise from Lamar Heights, they should be the one to run the electric line to the new bowling alley, or any other new business comming into Lamar Eteights, instead of Barton County Coop.” in the minutes of the meeting held on August 8, I960.

      . State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167; State ex rel. Marcum v. Sappington, Mo.App., 261 S.W.2d 385; McQuillin on Municipal Corporations (3rd Ed.), Yol. 5, §§ 14.10-14.12, pp. 30-36. See also State ex rel. School Dist. of Affton v. Smith, 336 Mo. 703, 709, 80 S.W.2d 858, 861(11); State ex rel. Lovell v. Tinsley, 241 Mo.App. 690, 695-696, 236 S.W.2d 24, 27(4); annotation 98 A.L.R. 1229.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Lillian M. ROSEBERRY, Plaintiff-Appellant, v. Roy T. CRUMP, Defendant-Respondent.
    No. 23459.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.

      Donald F. Price, Kansas City, for appellant.
    Robert A. Sniezek, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiff-appellant sued out a general execution and garnishment in the Circuit Court of Jackson County, Missouri, in an effort to collect a $4500 permanent alimony judgment granted to her by the District Court of Johnson County, Kansas. Defendant, the judgment debtor, filed a motion to quash. The Missouri court heard evidence on the motion and then sustained it, ruling that the Kansas judgment was procured by fraud and was void. This appeal followed.

Lillian M. Roseberry, whom we shall refer to as plaintiff, intermarried with defendant Roy T. Crump in Kansas City, Kansas on April 23, 1944. The parties lived together as married persons until about July, 1957, or slightly more than 13 years. No children were born of the marriage.

In July, 1957, plaintiff filed suit for divorce in the District Court of Johnson County, Kansas, where both parties resided. In her original petition plaintiff prayed that the court make an equitable division of their joint property, that she be allowed suit money, attorney fees and “for such other and further relief as to the court seems just and proper”.

During the late summer of 1957, and before a hearing was had on the divorce petition the parties held several conversations and negotiations relative to their marital affairs. They agreed upon a property settlement and in conformity therewith divided their property. Plaintiff received all of a $1000 savings account, all of the household furniture valued at about $2500, and $617, which was one-half of the net proceeds from the sale of their equity in a house. Defendant retained his bank account of $508, received $617 from the house sale, and a 1956 Chevrolet on which $700 had been paid and on which $2300 remained unpaid. 'He also agreed to and did pay her attorney fee in the divorce action.

Defendant testified that he and his wife agreed there would be no alimony; that she told him there was no reason for him to have an attorney at the divorce hearing; that specifically she said, “There is no reason for you to spend an extra $100, because we have made this agreement and I do not want any alimony and I won’t ask for alimony”.

The divorce case was called up in the Kansas court on October 25, 1957. Plaintiff appeared in person and with her attorney, Mr. Abrams. Defendant was not present either in person or by counsel. At the commencement of the hearing, plaintiff’s attorney Mr. Abrams advised the Court that the parties had made their own property settlement and proposed to eliminate those paragraphs in the petition which prayed for a Court division of the property. The Court persuaded him not to do this, expressing the opinion that it might require a second service on defendant.

In her testimony plaintiff stated that she was not asking for alimony or suit money. She said she understood that by so doing she would be forever barred from seeking alimony. The trial Court was apparently neither pleased nor satisfied with this; abandonment of alimony on her part. He' called her to the bench and asked her: “You do or do not want the Court to allow you permanent alimony?” Her answer was: “Well, I don’t know what to do about it. I really need it, but then I just hate to go back on my word, but that was the one thing; He said he didn’t care if I got a divorce, he didn’t want to give me alimony. Would the divorce be delayed — ”. The Court interrupted and told her the divorce would not be delayed.

At this point in the proceedings Mr. Abrams spoke up and told the Court he had been advising these people for more than a year, that defendant drank excessively and lost jobs as a pharmacist because of it and “that was probably one of her motives” in agréeing to forego alimony. The Court remarked that Mr. Abrams should be advising plaintiff and not “these people” and thereupon proceeded to enter the judgment. By it plaintiff was granted a divorce on the grounds of extreme cruelty and gross neglect of duty and judgment against defendant for permanent alimony in the sum of $4500, payable at $25 per week.

Mr. Abrams on the same day advised defendant that the judgment had been entered against him. Defendant took no appeal and paid a few weekly installments on the judgment, but soon defaulted.

Section 60-1511, G.S. Kansas, states: “When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall * * * be allowed such alimony as the court shall think reasonable, * * *

This appeal was first lodged in the Supreme Court. Plaintiff asserted that the Kansas judgment is valid, is entitled to full faith and credit under Article IV, Section 1 of the Constitution of the United States, and that the action of the Missouri trial court declaring the judgment void for fraud in procurement presented a constitutional question vesting jurisdiction with the Supreme Court of Missouri. That court ruled that this appeal does not involve construction of the full faith and credit clause, but rather its application, and by its opinion in Roseberry v. Crump, Mo., 345 S.W.2d 117, transferred to this court.

There is no question but that the foreign judgment involved here was entered by a court of competent general jurisdiction as to both subject matter and the persons. The parties resided in Kansas. Defendant was in court as a result of personal service. Therefore, the judgment, like any foreign judgment, is on its face entitled to full faith and credit. But, as plaintiff states in her brief: “The law of Missouri is settled that a foreign judgment is subject to attack for (1) lack of jurisdiction over the subject matter, (2) failure to give due notice to defendant, and (3) fraud in the concoction of the judgment”. Although there is at least a question as to the authority of a court to award alimony when such is not asked for in the petition and defendant has not been advised, by a reading of the allegations of the petition and its prayers, or otherwise, that alimony will be sought, the judgment here was ruled invalid by the Missouri court for fraud in its procurement and for no other reason. We shall therefore, consider only that feature which is sufficient to determine this appeal.

This being a proceeding in equity, we review the matter de novo on both the law and the evidence. We determine on the whole record what relief, if any, should be granted. McCarty v. McCarty, Mo., 300 S.W.2d 394, 399.

In the case of In re Veach, Mo., 287 S.W.2d 753, 759, the court said that the judgment of a sister state is only subject to attack for (1) lack of jurisdiction over the subject matter, (2) failure to give due notice to defendant and (3) fraud in “concoction” of judgment.

The Supreme Court en banc in Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201, ruled that a Kansas divorce obtained under an order of publication based upon a false affidavit disclaiming knowledge of defendant’s address is (1) subject to collateral attack on jurisdictional grounds on evidence de hors the record and (2) a finding that a Kansas divorce was procured by fraud did not deny full faith and credit to such judgment.

New York Knee Pants Co., Inc. v. Diamond et al., Mo.App., 11 S.W.2d 754, is a case involving a foreign judgment. Plaintiff company sued defendant in New York. While the suit was pending the parties agreed to and did arbitrate the controversy. Plaintiff was awarded $50, which was paid by defendant in full settlement and plaintiff agreed to dismiss the lawsuit. Instead of doing so, plaintiff took a default judgment for $964, and sued out a general execution and garnishment on it in Missouri. The Missouri court ruled there was fraud in procurement of the judgment. Responsive to plaintiff’s contention that defendant was negligent in not appearing and defending in New York, it was stated that courts do not convict parties of negligence for failing to make defense to an action where a defense has been prevented by plaintiff’s fraud, nor do they show solicitude to reward diligence exercised in the perpetration of fraud. Our own court (J. R. Watkins Co. v. Hubbard et al., Mo.App., 343 S.W.2d 189, 191, 192) declared that where the judgment is procured by fraudulent, unconscionable acts on the part of plaintiff extraneous to the merits of the case, the courts uniformly recognize those acts as grounds for equitable relief.

We believe the evidence here shows: The parties after full negotiation and each with full knowledge as to the extent and value of the property for distribution, entered into a property settlement under which the wife received more than twice as much as the husband. There can be no doubt but that it was agreed there was to be no alimony. Plaintiff even told defendant it was not necessary for him to employ an attorney or be present at the hearing because she did not want and was not going to ask for alimony. Such agreement would appear to have been one of the considerations impelling defendant to make the property settlement and allow the divorce to go by default. The question of alimony was not even fairly litigated since (1) defendant was not present, (2) alimony was not asked for in the petition, (3) the parties agreed there would be no alimony, (4) plaintiff told defendant she would not ask for alimony, (5) her attorney was cognizant of such agreement, (6) defendant had no opportunity to show his physical condition, his present worth, his age or his earning capacity, (7) no evidence whatever was presented as to plaintiff’s needs, present worth or earning capacity.

In Picadura v. Humphrey et al., Mo., 335 S.W.2d 6, 14, the Cupreme Court declared:

“A judgment is procured by fraud where it results from conduct which ‘tends to trick an adversary out of a defense or to blind him to the pendency of an action’. Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121, 132”.

If defendant here was not “tricked out of a defense” he was at least lulled by false promises into foregoing the privilege of being present and presenting whatever defense he might have had. He was blinded to the pendency of an action for alimony since the petition did not ask for it and because plaintiff affirmatively and unequivocally represented to him that she would not ask for alimony.

Plaintiff in her brief says: “It was the Kansas Court who initiated the inquiry on the property settlement, not the plaintiff. In fact the Kansas Court’s act was after plaintiff testified that she was not asking for alimony”. This statement appears to be quite true. Possibly without such action on the Court’s part the alimony judgment would never have been entered. Nevertheless, plaintiff finally joined in and she is the one who now seeks to profit by it. Besides judges are not infallible and sometimes make mistakes. Otherwise there would be no need for appellate courts.

It is our belief that the Kansas alimony judgment was procured by fraud practiced on defendant, and should be set aside. Plaintiff’s contentions that the Kansas court was authorized under Kansas law to enter an alimony judgment even if it was not asked for and that defendant should have appealed in Kansas, even if true, will not put pulsating life into a judgment stillborn because of fraud in its procurement.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


text:
    STATE of Missouri ex rel. Morton G. CAPPS, Appellant, v. George F. BRUNS, License Inspector for the City of St. Joseph, Missouri, Garth Landis, Stanley Kizior, James F. Welsh, John W. Beaumont and John E. Rupp, as Members of the Common Council of the City of St. Joseph, Missouri, and the City of St. Joseph, Missouri, a Municipal Corporation, Respondents.
    No. 23524.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1962.

      Dale, Potter & Flynn, St. Joseph, for appellant.
    Joseph G. Wood, J. Harley Thompson, St. Joseph, for respondents.
   MAUGHMER, Commissioner.

Relator seeks a writ of mandamus directing that a city license to operate a junk business be issued to him by the City of St. Joseph, Missouri. The trial court issued its alternative writ. Thereafter defendants filed a motion to quash, based upon an assertion that plaintiff’s petition “did not state facts sufficient to entitle him to the relief prayed for therein”. The Court sustained this motion and entered judgment for defendants. Plaintiff has appealed.

No evidence was heard by the trial court. Therefore we examine and consider the allegations of the petition. If, assuming all such allegations are true, plaintiff is patently not entitled to the writ, the judgment should be affirmed. Otherwise, it must be either reversed outright or remanded for further proceedings, including possibly the hearing of evidence.

St. Joseph is a city of the first class. It is authorized, acting by and through its Common Council, to pass zoning laws and to regulate, tax and license various businesses, including “junk yards”. Sec. 73.110, (17), (21), V.A.M.S.

Plaintiff, Morton G. Capps, is a resident and citizen of St. Joseph. About the year 1940, he began the operation of a junk business located at 1220 Grand Avenue in St. Joseph. Since his petition alleges that at all times he lawfully operated such business, we must assume he was in compliance with all regulatory and licensing requirements unless from the pleadings it appears otherwise.

It is not denied that plaintiff operated his junk yard in full and complete compliance with all lawful requirements from 1940 until 1949, when his location was zoned for two-family dwellings. Therefore, his use of the property thereafter as a junk yard constituted a nonconforming use under the zoning ordinances. However, such use was not unlawful. “The general rule is that nonconforming structures and uses existing at the time of the effective date of a zoning ordinance or restriction may be continued”. McQuillin, Municipal Corporations, 3d Ed., page 464. Such use and the operation of such a business was continuance of a vested right of which the city could not deprive plaintiff. See Brown et al. v. Gambrel et al., Mo., 213 S.W.2d 931, 935. In addition, General Ordinance 3162, Sec. 11-21, City of St. Joseph, squarely authorizes such continuing nonconforming use.

In Braun et al. v. McGillian, Sup., 40 N.Y.S.2d 791, the premises had been used for the slaughter and sale of poultry prior to the adoption of zoning ordinances which prohibited such continued use except upon the approval of the Board of Appeals. The Court ruled petitioner had the right to continue the business without approval of the Board.

In Campbell et al. v. Board of Adjustment of Borough of South Plainfield et al., 118 N.J.L. 116, 191 A. 742 (Sup.Ct.N.J.) plaintiff was the operator of a filling station. His property was zoned as residential. He leased to another, who for five months operated the filling station and then the premises were idle. It was held that plaintiff was still entitled to continue his nonconforming use.

About July 15, 1960, plaintiff filed formal application for license to operate a “Junk Yard”. On all crucial dates involved here there was in full force and effect various city ordinances regulating junk yards, providing that they be licensed, pay a license fee, file application therefor, secure the written approval of the City Fire Chief, and regulations as to buildings, fences, walls and reports. The petition alleges full compliance with all of these requirements.

The city ordinances require that the application, with the written approval of the Fire Chief and with a receipt for the license fee, all of which plaintiff had procured, shall be presented to the Common Council, which shall either reject or approve such application. The Council rejected plaintiff’s application. No reason was assigned for the rejection by the Council and none was offered by defendants’ pleading. On appeal it is suggested that licensing to operate a junk yard is a privilege and “is granted by the proper authorities not to everyone but to selective persons”. This contention sounds both arbitrary and capricious. Manifestly, where a person is lawfully conducting a business in a certain area, he has a vested right to continue, even though such business use has become, by reason of changed zoning, a nonconforming use. To then say that the city, by the simple expedient of first requiring and then denying him a license, could destroy such vested right and put him out of business, would be absurd and unreasonable. Such is not the law.

Respondents, City License Inspector and the five members of the St. Joseph Common Council, have invited our attention to some selected cases which they assert justify their refusal to issue the license and show that the trial court was correct in denying the writ. We shall refer briefly to some of these cases.

City of St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870. This case merely holds the city has the power to license, regulate and tax junk and secondhand dealers, and that a requirement to keep an “inspection book” listing purchases is not an unreasonable regulation.

Lerner v. City of Delavan, 203 Wis. 32, 233 N.W. 608. Here the Supreme Court of Wisconsin ruled the city had the right to pass and enforce reasonable ordinances regulating junk dealers; that council was not vested with arbitrary power to deny license, but denial of an original application was justified because it would be offensive and dangerous in that particular location.

Paron et al. v. City of Shakopee, 226 Minn. 222, 32 N.W.2d 603, 2 A.L.R.2d 1227, has to do with license to sell liquor and the validity of ordinances limiting the number of such licensees. Dening v. Cooke, Mayor, 162 Misc. 723, 295 N.Y.S. 724. In this case the Supreme Court of New York affirmed denial of a junk yard license to plaintiff based upon proof he had one year before been convicted of purchasing junk from children under 16 years of age. Primm v. City of Reno et al., 70 Nev. 7, 252 P.2d 835, approves denial of gambling license in order to prevent spread of gambling into new areas of the city. Marchesi v. Selectmen of Winchester, 312 Mass. 28, 42 N.E.2d 817. Here the licensing body denied an original application to start a bowling alley in a new area close to residences. This was ruled to be neither arbitrary nor capricious.

None of these cases are in point on the issues here. In our case we have an applicant who for twenty years has conducted a junk yard at this particular location. He has a vested right which zoning ordinances could not abrogate. There is no proof, evidence, showing or suggestion that he is an improper person to conduct such a business or that his operation of it has been violative of law, city regulations or even of propriety.

Based upon the record we can see only one possible justification for refusing to issue the license and that is plaintiff may-have abandoned his nonconforming use. If he has, then the zoning restrictions apply to him as to anyone else in the area, and he is not entitled to be licensed.

In Paragraph 10 of plaintiff’s petition it is alleged that “In 1954, the defendant City of St. Joseph, Missouri, by and through its officers, servants, agents and employees, without authority of law, did cause his classification to be changed and an occupation license to be issued to plaintiff as a Motor Vehicle Business, a more restrictive nonconforming use than that of a junk dealer, and new licenses issued under said amended classification”. Plaintiff alleges further that at all times during the twenty years his business has been the same, namely, that of a junk dealer.

In McQuillin, Municipal Corporations, 3d Ed. page 492, we are told: “In truth, the abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (a) An intention to abandon; and (b) some overt act, or some failure to act, which carries the implication that the owner does not claim or retain any interest in the subject matter”. See also Chapter X-g-(5) Metzenbaum, Law of Zoning, 2d Ed., page 1263.

Many ordinances limit the life of nonconforming uses to a period of years and such ordinances have been approved. There are apparently no such “tolerance period” ordinances involved in our case.

In Lipsitz v. City of Baltimore, 219 Md. 605, 150 A.2d 259, it was held that the written record of police survey showing occupancy of the premises by only two families, and record of issuance of fire escape permit based on occupancy by two families, proved discontinuance of nonconforming five-family use, even though oral testimony to the contrary was given.

The Court of Appeals (Md.) in Dorman v. Mayor and City Council of Baltimore et al., 187 Md. 678, 51 A.2d 658, ruled that a nonconforming use for a junk business is abandoned or changed to a use for a higher classification where, after a fire in 1942, owner refused to restore the property pursuant to a lease of it, or to rent it, for a junk business, and rented part of it as a warehouse for three years, and made no other business use of the premises after the fire.

In Brown v. Gambrel, supra, appellants possessed a valid right to use the property as a riding academy and stable. They converted it and used it as a public dance hall. Our Supreme Court held this amounted to abandonment of the nonconforming use and said (213 S.W.2d pp. 935-936): “Now appellants did not have a right to effect a change that would expand the nonconforming use of their property, nor had they the right to alter and improve their non-conforming building so as to prolong the term of a non-conforming use, nor had they the right to reestablish the non-conforming use thereof, if discontinued, in view of the county’s zoning plan, the ultimate purpose of which is to confine within established zones or districts all uses of similar classification, and the underlying spirit of which plan is to diminish and not to extend non-conforming uses”.

While plaintiff here alleges that he continuously from 1940 to the present operated the same kind of business, that is, a junk yard, the fact remains that from 1954 through 1959, apparently he was licensed to operate a “Motor Vehicle Business” and he apparently accepted such a license without protest. If in truth and fact he intended to and did operate a different kind of business from 1954 through 1959, we would not likely interfere with a denial of a junk yard license predicated upon abandonment. But if he, as a matter of fact, has continuously operated a junk yard, we believe there has not been an abandonment of his vested right to this nonconforming use. We, on this appeal, must accept at par, plaintiff’s assertion that for twenty years he has operated the same kind of business — namely a junk yard. If evidence were heard it might show that such was or was not the fact. Plaintiff also asserts that the city officers “without authority of law” in 1954, changed his classification from “Junk Dealer” to “Motor Vehicle Business”. It may be that plaintiff, on his own initiative, voluntarily sought such a changed classification and applied for and was granted the different type of license. On the other hand, it may be that the City License Inspector from 1954 through 1959, classified the operation as a “Motor Vehicle Business” and then in 1960, a new City License Inspector again classified it as a “Junk Yard” operation. It is our opinion that evidence might be procurable on these issues of fact, which would resolve or at least throw much light on them. We believe such evidence should be heard. It is also possible that evidence might be adduced as to other grave and sufficient reasons why this particular applicant should not be permitted to operate a junk yard at this specific location. These reasons would have to be such as would appeal to the sound and reasonable discretion of the Council and of the Court. The license should not be refused for reasons which are arbitrary and capricious, or for no reason at all.

It seems quite evident that in this matter plaintiff does not have an adequate remedy at law and if he is entitled to a license, mandamus should issue.

We are, therefore, constrained to reverse the order and judgment of the trial court sustaining the motion to quash, and remand the cause for further hearing and proceedings in accordance with this opinion, including hearing evidence on the question of abandonment and as to any other reasonable and discretionary reason for denying issuance of the license.

The judgment is reversed and the cause is remanded for further proceedings in accordance with and not contrary to this opinion.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: BROADDUS, Judge.

text:
    John W. DAILEY, Respondent, v. Roy H. STOUT, Appellant.
    No. 23373.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      Edwin Earnshaw, Kirchner, Vanice & Earnshaw, Kansas City, for appellant.
    Sidney H. Goldsmith, Charles J. Brennan, Kansas City, for .respondent.
   BROADDUS, Judge.

This is an action for malicious prosecution. There was a verdict and judgment in favor of plaintiff for compensatory damages in the sum of $1500, and $1000 for punitive damages. Plaintiff involuntarily remitted $1300 of the actual damages. Defendant has appealed.

The appellant, Roy H. Stout, and others were defendants in a criminal prosecution instituted by the United States in the District Court of Kansas, concerning alleged bribes or “kick-backs” to the purchasing agent for the Buick-Oldsmobile-Pontiac plant at Fairfax, Kansas, while that company was prime contractor for the construction of air-craft in 1951 to 1954. The purchasing agent was named John W. Dailey, as is the respondent here, and had received monies, allegedly bribes for which he gave appellant a written promissory note. The criminal case was to be tried in the United States District Court on June 1, 1959, and appellant’s counsel urged that suit be filed on the note in order to demonstrate that appellant had not made a gift to. the purchasing agent, Dailey, but expected the return of the money. And on May 29, 1959, appellant instituted an action in the Circuit Court of Jackson County, Missouri, at Kansas City, to recover $610 with interest at 5%, alleged to be due him on the promissory note. John W. Dailey was named as defendant in that action. Service of summons was made on respondent. Appellant’s evidence was that he was informed that the criminal defendant had left Lenexa, Kansas, where he had lived in 1951-1954, and was living in the south part of Kansas City.

Records pertaining to the true indentity and residence of the criminal defendant John W. Dailey were kept in the Clerk’s Office of the United States District Court of Kansas, and apparently in the U. S. Marshal’s office. These .records disclosed that said defendant resided at 2220 North-view Street, Manhattan, Kansas, as of March 8, 1956, and later the same address was shown as of May 20, 1959.

■ The respondent here, John W. Dailey, has been an upholsterer for sixteen years immediately preceding the trial herein; has been employed at Horton’s Upholstering, 7323 Troost Avenue, Kansas City, Missouri, for the six and one-half years immediately preceding the trial; has lived at the same address, 7000½ Prospect, Kansas City, Missouri, for six years and has lived in this City all of his life.

Respondent was never personally contacted by appellant before the suit on the note was filed. Said suit was not dismissed of record until more than twenty days after summons was served on respondent, and in fact, not until ■ after the criminal proceedings against appellant had been terminated in the Kansas Federal Court.

Appellant’s first point is that the court erred in giving Instructions Nos. 1 and 10 “permitting an award of actual damages when the only evidence concerned nominal damages.”

Instruction I purports to cover respondent’s case and directed a verdict. Instruction 10 is a standard instruction setting out a form of verdict for actual damages.

An examination of the transcript discloses that there was substantial evidence offered showing that respondent sustained actual damages, at least in the amount that the trial court permitted to stand, to-wit, $200. Notice that suit had been filed against him by appellant was published in a newspaper called “The Daily Record” which has a large circulation among banks, credit agencies and the Kansas City Credit Men’s Association. Respondent testified that he “had trouble cashing checks or getting any credit or anything that way.” Respondent also became obligated to pay an attorneys fee in the defense of the suit instituted by appellant. That reasonable counsel fees may be recovered in an action of this kind is no longer an open question in this State. Gregory v. Chambers, 78 Mo. 294.

Appellant also contends “that the court should have instructed as to nominal damages.” In civil cases the court is not required to instruct upon any proposition of law arising in a case unless requested. Silberman v. Hicks, 231 S.W.2d 283, 286 (Mo.App.). Appellant having failed to offer an instruction on nominal damages is in no position to complain.

Appellant’s remaining contention is that the trial court failed to instruct the jury “that the appellant was excused if he acted on an honest and reasonable belief of appellant acting with reasonable prudence under the circumstances as they appeared to him at the time he acted, and not as they ultimately appeared.”

At appellant’s request the court gave Instruction No. 8, which reads as follows:

“The court instructs the jury that if you find and believe from the evidence that the defendant, Roy Stout, had probable cause for directing service of process upon this plaintiff, if you so find, then your verdict must be for the defendant and against the plaintiff.
“The court further instructs you that probable cause does not depend upon what may ultimately he proved to be the actual state of facts embraced in the previous suit on the note, but instead upon the honest or reasonable belief of the one who instigated such action.” (Emphasis ours.)

If defendant desired a further'explanatory or cautionary instruction dealing with this matter it was his duty to request it. This he did not do. Furthermore, his motion for new trial contains no reference to the contention he now makes.

Finding no error in the transcript prejudicial to appellant, the judgment is affirmed.

All concur.


author: HUNTER, Presiding Judge.

text:
    STATE of Missouri at the Relation of George LANE, Harold Herman and Edmund Gorman, Relators, v. Hampton CHAMBERS, Chairman; Carl E. Enggas, Secretary; William Morris and Clyde Linde, Chairman, Secretary and Members Respectively of the Kansas City Board of Election Commissioners; Robert G. Kirkland, Chairman; Robert B. Hedges, Secretary, Leon Morton, Jr., and E. D. Lewis, Chairman, Secretary and Members Respectively of the Board of Election Commissioners of Clay County, Missouri, and Holman T. Ham, County Clerk and Ex Officio Registration Officer of Platte County, Missouri, Respondents.
    No. 23633.
    Kansas City Court of Appeals. Missouri.
    Jan. 19, 1962.

      Joe S. Levy, Thomas Conway, Paul Margolis, Jr., Kansas City, for relators.
    William Tipton, Robert R. Cohn, Kansas City, John W. Coots, Platte City, for respondents.
   HUNTER, Presiding Judge.

This is an action in mandamus brought in the name of the State of Missouri by relators, George Lane, Harold Herman and Edmund Gorman, who are registered, qualified electors and citizens of the City of Kansas City, Missouri for the purpose of requiring respondents, who constitute the full membership of the election bodies and officials in charge of elections for the City of Kansas City, Missouri, to place a certain proposal for amendment of the Charter of Kansas City, Missouri on the ballot at the next election to be held in the City on March 6, 1962.

This court has issued its alternate writ which has resulted in a full hearing on the merits of the controversy. There is little dispute over the facts, most of which have been admitted either in the pleadings or by respective counsel at the hearing. We proceed to set out such of these facts as are pertinent to the issues.

For some time prior to January 2, 1962, relators and others circulated petitions for the purpose of obtaining a Charter amendment to the Charter of the City of Kansas City, Missouri. The petitions recited that the undersigned, being duly registered, qualified electors of the City of Kansas City, Missouri, “pursuant to Sections 19 and 20 of Article VI of the Constitution of the State of Missouri, present to the City Council of this City, this petition by filing the same with the City Clerk of Kansas City, Missouri, and request the City Council to adopt at once an appropriate ordinance so that the following proposed amendment to the Charter of Kansas City, Missouri, shall be placed upon the ballot and submitted to the registered and qualified electors of Kansas City, Missouri, for their adoption or rejection * * * ; said proposed amendment will require the City to be divided into twelve councilmanic districts with one councilman running for election inside each district, and no councilman running at large.”

Attached to each of these petitions was a copy of the proposed amendment to the City Charter.

As a result of the circulation of these petitions approximately 32,000 signatures were obtained.

It is undisputed that these petitions were in proper form and were signed by substantially more than ten percent of the registered qualified voters of Kansas City, Missouri as of the time of the last preceding general election and also more than ten percent of the registered qualified voters of Kansas City, Missouri on January 2, 1962, and at all other times mentioned.

On January 5, 1962, there was filed with the City Council of Kansas City by Holman T. Ham, County Clerk and ex officio Registration Officer of Platte County, Missouri, one of the above named respondents, two certificates dated January 2, 1962, certifying that there were no qualified electors of Kansas City, Missouri from Platte County who voted in the last preceding election in Kansas City, no part of Platte County having come into the city limits of Kansas City prior to January 1, 1962; that as of January 1, 1962, there were 79 residents of newly annexed territory of Kansas City registered in Platte County.

Likewise on January 5, 1962, there was filed with the Office of the City Clerk of Kansas City a duly attested certificate executed January 4, 1962, by the Board of Election Commissioners of Clay County^ Missouri, to which certificate was attached a copy of the petition for the proposed charter amendment in which the Election Commissioners of Clay County, Missouri certified that 960 registered qualified electors of Kansas City, Missouri in Clay County had signed the mentioned petition for the proposed Charter amendment.

Also on January 5, 1962, the Kansas City Board of Election Commissioners executed a certificate which at 11:30 a. m. on January 5, 1962, it filed with the City Clerk of Kansas City, Missouri, which certificate, among other things, certified that the above mentioned petitions for the proposed Charter amendment and their signatures were duly canvassed and found to contain 23,921 signatures of duly registered qualified electors of the City of Kansas City, Missouri, and that such signatures constitute more than ten percent of the registered qualified electors of the City of Kansas City, Missouri, as of January 2, 1962. The certification did not include the 960 registered qualified electors certified by the Election Commissioners of Clay County, Missouri.

On December 1, 1961, a proponent of the proposed Charter amendment, Joseph S. Levy, with the consent of the City Council of Kansas City appeared at a meeting of the City Council, discussed the proposed Charter amendment, and requested the City Council to pass an ordinance placing the proposed amendment on the ballot at the March 6, 1962, election.

On December 8, 1961, Ordinance No. 26933 was introduced and passed by the City Council calling for the placing of a Charter amendment on the ballot at the March 6, 1962, election, which proposed Charter amendment was substantially different from the one advanced by relators.

Later this ordinance was repealed and replaced by Ordinance No. 27022, passed on January 5, 1962, for the apparent purpose of supplying an effective date for the ordinance omitted in the earlier ordinance. Ordinance No. 27022 was duly certified to respondents to be placed on the election of March 6, 1962, and submitting the Council’s proposed Charter amendment to the electorate. According to the evidence this ordinance was passed by the City Council just after it voted 4 to 4 on Ordinance No. 27015.

On January 5, 1962, and after the mentioned certifications of the sufficiency of the petitions sponsored by relators the City Council of Kansas City had on its docket reference to these petitions and their certifications ; they were at the Council Meeting declared to be received and filed; and there was duly presented at this Council Meeting Ordinance No. 27015 providing for the submission of relators’ proposed City Charter amendment to the electors of Kansas City on March 6, 1962, that date being the next election to be held in Kansas City more than sixty days after the passage of such ordinance as provided by Sections 19 and 20 of Article VI of the Constitution of Missouri, V.A.M.S.

After presentation and discussion of Ordinance No. 27015 by the members of the City Council, and after being advised by the City Counselor of Kansas City that because the certified petitions were sufficient and the ordinance was in proper form and content the passage of Ordinance No. 27015 was, by the terms of the Constitution of the State of Missouri, mandatory and outside the discretion of the members of the Council, the City Council voted 4 to 4 on the ordinance, thus failing to enact it.

Since that time relators have been unable to get the respondents to place the proposed City Charter amendment sponsored by relators on the ballot for the March 6, 1962, election, the position of respondents being that they will not do so unless directed to do so by a court of appropriate jurisdiction.

We next turn to those provisions of the Constitution of the State of Missouri and the City Charter that apply to the issues before us.

Article 6, section 20 of the Constitution of 1945, State of Missouri, provides: “ * * * Amendments (of City Charters) may also be proposed by the legislative body of the city or by petition of not less than ten percent of the registered qualified electors of the city, filed with the body or official having charge of the city elections, setting forth the proposed amendment. The legislative body shall at once provide, by ordinance, that any amendment so proposed shall be submitted to the electors at the next election held in the city not less than sixty days after its passage, or at any special election held as provided for a charter. Any amendment approved by a majority of the qualified electors voting thereon, shall become a part of the charter at the time and under the conditions fixed in the amendment; and sections or articles may be submitted separately or in the alternative and determined as provided for a complete charter.” (Emphasis ours.)

Article VI, Section 19 of the Missouri Constitution provides: “The number of electors required to sign any petition shall be based upon the total number of electors voting at the last preceding general city election. The election body or official shall forthwith finally determine the sufficiency of the petition.”

Section 487 of the Charter of Kansas City provides: “This Charter may be amended in the method provided by the Constitution of the State of Missouri, as such constitution now exists, or as it may hereafter be amended.”

It is clear that relators were following the procedure for amending the City Charter set out in Article VI, section 20, Constitution of Missouri. They obtained the required signatures of ten percent of the registered qualified electors of the City on their petitions. The proper election officials determined their sufficiency. They, together with appropriate certification, were timely presented to the City Council of Kansas City. The office of the City Coun-sellor of Kansas City prepared an appropriate ordinance embodying the proposed Charter amendment. This Ordinance, No. 27015, was timely considered by the City Council which failed to enact it and, in lieu of it, at that same Council meeting enacted a different ordinance for a charter amendment.

When Ordinance No. 27015 was timely presented to the City Council on January 5, 1962, it was the constitutional duty of the City Council to enact it at once. Article VI, section 20 of the Missouri Constitution directs a City Council under such circumstances to provide at once by ordinance for the submission of any amendment so proposed at the next election held in the city not less than sixty days after its passage. The constitutional provision is mandatory. It is the supreme law of this State. McConnell v. City of Kansas City, Mo., 282 S.W.2d 518. Under the clear provisions of Article VI, section 20 of the Constitution the City Council had no discretion in the matter. It had only a ministerial act to perform and it was under the constitutional mandate to do it “at once”. The City Council of Kansas City did not have the right or power to decide that it did not wish to submit to the voters the properly proposed Charter amendment provided for by Ordinance No. 27015.

What is the effect of the failure of the City Council to obey the constitutional mandate by failing to enact Ordinance No. 27015 ? Is it to be that the people of Kansas City are to be deprived of their otherwise right to vote on the proposed Charter amendment? Is that to be the necessary effect of the failure to perform a purely ministerial act? We do not think so.

A long established and sound legal principle is that where mere ministerial acts are concerned a court under proper circumstances may look upon that as done which should have been done. This is particularly true where the public interest is directly concerned.

In saying what we have we wish to make it clear that it is not the function of this court or that of any court to pass on the merits of any proposed Charter amendment, and we do not do so. It is not for us to say whether a proposed Charter amendment is good or bad, or should be enacted or defeated. That is a matter that rests completely with the electorate of Kansas City. Our duty as a court is to apply the pertinent constitutional provisions to the issues before us.

We are convinced that the rights of re-lators and of the electorate of Kansas City can be restored and made effective, and that the result intended by Article VI, Section 20, of the Constitution can be accomplished, without damage to anyone’s rights, by this court ordering respondents to proceed just as though Ordinance No. 27015 had been passed by the City Council of Kansas City at its meeting on January 5, 1962, rather than lost on the mentioned tie vote.

Therefore, it is the judgment of this Court that respondents, in their official capacities, are hereby directed to proceed just as though Ordinance No. 27015 had been duly enacted by the City Council of the City of Kansas City, Missouri, on January 5, 1962, and had been properly certified to such officials together with a request that they proceed to place the Charter amendment provided by Ordinance No. 27015 on the ballot for the March 6, 1962 City election.

It is so ordered.

All concur.

      . The proposed amendment read in part:
      “BE IT ADOPTED by the duly qualified electors of Kansas City, Missouri, that the Charter of Kansas City, be amended by repealing Sections 6, 7 and 9 of Article II and Sections 418, 419, 421 and 424 of Article XVI of said Charter, and to adopt in lieu thereof new Sections of like numbers to read as follows: (setting out specifically the proposed new sections) ”

      . According to the testimony, the qualified electors of Kansas City voting in the last municipal election held on March 31, 1959, numbered approximately 90,000, and the number of registered qualified electors in Kansas City on January 2, 1962, was not more than 229,891.

      . Relators proposed amendment was for a City Council of 13 members, including the Mayor. There would be 12 council-manic districts with each district to elect one council member who must be a resident of that particular district. Only the Mayor would be elected at large. This was called “The Twelve-O Plan”.
      The amendment proposed by Ordinance No. 26933 established a City Council of 13 members, including the Mayor. There would be 6 councilmanio districts with 6 members to be elected only by the electorate of the particular district in which he resided, and the other 6 members and the Mayor to be elected at large. This was called “The 6-6 Plan”.


author: PER CURIAM.

text:
    The STATE of Texas v. Hon. Roy C. ARCHER, Chief Justice, et al.
    No. A-8849.
    Supreme Court of Texas.
    Feb. 14, 1962.
    Will Wilson, Atty. Gen., Jack N. Price, Asst. Atty. Gen., for relator.
    No appearance for respondents.
   PER CURIAM.

The Court of Civil Appeals dismissed an appeal by writ of error from a trial court judgment in this quo warranto case. The State of Texas asks leave to file a petition for writ of mandamus to compel the Court of Civil Appeals to reinstate the appeal.

Dismissal of the appeal by the Court of Civil Appeals was reviewable by this Court on application for writ of error. A writ of mandamus will not be issued by this Court to require a Court of Civil Appeals to correct an error which can be reviewed on application for writ of error. We therefore overrule the motion for leave to file petition for writ of mandamus without passing on the correctness of the action of the Court of Civil Appeals in dismissing the appeal.


author: GREENHILL, Justice. GRIFFIN, Justice

text:
    PARAMOUNT FIRE INSURANCE COMPANY, Petitioner, v. AETNA CASUALTY & SURETY COMPANY, Respondent.
    No. A-8459.
    Supreme Court of Texas.
    Jan. 31, 1962.
    Rehearing Denied Feb. 28, 1962.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., with above firm, Dallas, for petitioner.
    Johnson, Guthrie & Stanfield, Dallas, for respondent. . .
   GREENHILL, Justice.

This case is an appeal from a summary judgment. The question is one of first impression in Texas and involves the liability of two insurance companies, each issuing a policy covering improvements which were destroyed by fire.

On July 17, Í957, the heirs of Mrs. R. L. Cameron entered into a written agreement labeled “Contract of sale and receipt for earnest money,” whereby the seller (s) “sells and agrees to convey” and the purchaser(s), Mr. and Mrs. Sterling D. Holmes and Pauline Reece, “agrees to consummate the sale within fifteen days from date title company approves title” of a tract of land upon which were situated the improvements later destroyed. The contract specified the total purchase price, a down-payment, and terms of $125 monthly until the final closing date one year later, July 17, 1958, when the balance was due. Both seller and purchaser were given the right of specific performance. Purchasers had the right to occupy the premises from the inception of the contract,- which they did, and had the right to make all desired improvements on the property.

On October 12, 1957, sellers procured from petitioner, Paramount Fire Insurance Company, an insurance policy for $15,000 covering improvements on the contracted land and payable only to sellers. A clause extending protection to purchasers under this policy was specifically rejected by sellers.

The fire involved occurred on July 7, 1958. By this time, the title company had issued the title insurance policy. The sellers had prepared a warranty deed .conveying the property to the purchasers. Some, but not all of the sellers had already signed the deed, and it was being sent to the others for their signatures and acknowledgments. Purchasers had made the monthly payments of $125 and had procured a sufficient loan from Richardson Savings and Loan Association to pay the balance of the purchase price. Purchasers had also procured an $18,000 fire insurance policy from respondent, Aetna Casualty & Surety Company, in their favor with loss payable clause to the mortgagee as its interest might appear. This policy was dated June 25, 1958. All these and related papers, including the Aetna policy, were deposited in escrow with National Title & Abstract Company for final closing of the transaction on July 8, 1958. Because of the July 7 fire, this meeting was postponed until September 3, 1958. At the latter date, purchasers paid the contract price and received the warranty deed. Sellers, at the same time, assigned all their rights and claims under the Paramount policy to the purchasers.

Thereafter, purchasers and their mortgagee filed suit against both insurance companies, claiming property loss of $14,000. This suit was settled as to the plaintiffs by each insurance company’s contributing a prorata share of the loss based on the amount of its respective policy, reserving its rights against the other. The suit then proceeded between the two insurance companies to determine liability as against each other. The trial court rendered summary judgment against Aetna, awarding Paramount the amount of money it contributed in the settlement with purchasers. Aetna’s motion for summary judgment was consequently denied. On appeal, the judgment was reversed and the loss prorated between both companies in proportion to the face amount of the respective policies. 347 S.W.2d 281.

Both companies filed applications for writ of error to this Court. Paramount, of course, seeks to have the trial court’s judgment affirmed. Aetna asks that the full loss be imposed upon Paramount, or, alternatively, that the judgment of the Court of Civil Appeals be affirmed.

Aetna’s contentions require us at the outset to determine the legal nature of the written contract in this case. It concedes that if, as the lower courts havé held, this was an absolute contract of sale with the vendees in possession and the vendors entitled to specific performance, then the loss would fall on vendees, at least partially. It is Aetna’s position, however, that this contract was only a rental agreement with option to purchase and that the option was not exercised prior to the fire. Therefore, it argues that the loss should be entirely Paramount’s. In support of this position, Aetna stresses primarily the contract provision that should vendee “fail to pay the balance due herein on or before July 17, 1958, then all moneys paid hereon shall be forfeited as rents and purchaser will vacate the premises on letter written by the seller to the purchaser addressed to the address of the property.” (Emphasis supplied.) Aetna also points to the fact that no note, deed of trust, or deed prior to the date of the fire was provided for in the contract; that the authorization of purchasers to make improvements would be surplusage in a sales contract; and that the purchasers sometimes referred to their payments as “rents” for further evidence to support its position.

We agree with the courts below that the contract is one of sale and did not create a landlord-tenant relationship. The jinstrument itself is designated a contract of sale and its language throughout is of sale and purchase. The forfeiture provision quoted above does not alter the nature of the contract, in the absence of a provision that the vendor must accept such sum in full , settlement of the buyer’s liabilities for de- . fault. Moss & Raley v. Wren, 102 Tex. 567, 113 S.W. 739, 120 S.W. 847; Redwine v. Hudman, 104 Tex. 21, 133 S.W. 426; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; Texlouana Producing & Refining Co. v. Wall, Tex.Comm.App., 257 S.W. 875; La Prelle v. Brown, Tex.Civ.App., 220 S.W. 151 (wr. dism. w. o. j.). There is no such provision here. On the contrary, the vendors had a right to specific performance of the contract of sale. Aetna being the insurer of purchasers in possession under a contract of sale, it must bear all the loss unless it has a right to require Paramount to bear a prorata share as held by the Court of Civil . Appeals.

Paramount’s application attacks this pro-ration holding, arguing that the vendors suffered no actual pecuniary loss from the fire and that, therefore, the vendees’ insurance company should incur the total liability. Paramount’s position is based on the generally accepted principle that:

“Since a contract for insurance against fire ordinarily is a contract of indemnity * * * insured is entitled to receive the sum necessary to indemnify him, or to be put, as far as practicable, in the same condition pecuniarily in which he would have been had there been no fire; that is, he may recover to the extent of his loss occasioned by the fire, but no more, and he cannot recover if he sustained no loss.” 45 C.J.S. Insurance § 915, p. 1010.

Aetna does not challenge this principle. Instead, the controversy is as to whether or not the insureds of Paramount suffered any “loss” in a legal sense.

The Court of Civil Appeals regarded the date of the fire as controlling and found that the vendors did incur a loss, despite the fact that they received the full contract price from the vendees after the fire. There is a line of cases which supports this viewpoint; e. g., State Mutual Fire Insurance Co. v. Updegraff, 21 Pa. 513; Dubin Paper Co. v. Insurance Co. of North America, 361 Pa. 68, 63 A.2d 85, 8 A.L.R.2d 1393; Insurance Co. of North America v. Alberstadt, 383 Pa. 556, 119 A.2d 83; Milwaukee Mechanics Insurance Co. v. Maples, 37 Ala.App. 74, 66 So.2d 159; First National Bank of Highland Park v. Boston Insurance Co., 17 Ill.2d 147, 160 N.E.2d 802; Kahn v. American Insurance Co., 137 Minn. 16, 162 N.W. 685. See generally 8 A.L.R.2d 1416, § 6. The rationale of these cases is that an insurance company contracts to protect an insured against destruction by fire of his property and that liability is fixed if such fire occurs, all other contract terms being met. Any compensation to the insured from third parties, such as payment from the vendees here, is regarded as being unrelated to the insurance contract, of no concern to the insurance company, and in the nature of a windfall to the insured.

On the other hand, there is also a line of cases which supports Paramount’s argument that its insureds ultimately suffered no pecuniary loss from the fire and are therefore not entitled to recover on their insurance contract. In Ramsdell v. Insurance Company of North America, 197 Wis. 136, 221 N.W. 654, it was said:

“The court looks to the substance of the whole transaction rather than to seek a metaphysical hypothesis upon which to justify a loss that is no loss. This is not a case where a stranger to the transaction, out of charity, or for other reasons, might make good the loss * * *. The loss has been made good out of a related transaction * * ⅜ »

Accord, Tauriello v. Aetna Insurance Co., 14 N.J.Super. 530, 82 A.2d 226; Smith v. Jim Dandy Markets, 172 F.2d 616 (9th Cir.). We are inclined toward this latter view.

The complexity of the present problem is heightened, however, by another widely accepted principle upon which the Court of Civil Appeals relied in ordering a proration between Paramount and Aetna. In 64 A.L.R.2d 1406, § 4, it is said:

“Where the purchaser as equitable owner will bear the loss occasioned by a destruction of the property pending completion of the sale, and the contract is silent as to insurance, the rule quite generally followed is that the proceeds of the vendor’s insurance policies, even though the purchaser did not contribute to their maintenance, constitute a trust fund for the benefit of the purchaser to be credited on the purchase price of the destroyed property, the theory being that the vendor is a trustee of the property for the purchaser.”

The difficulty is that in some jurisdictions, even where the vendor is regarded as having suffered no loss from a fire, he is allowed to collect on his insurance policy subject to a constructive trust for the ven-dee’s benefit. E. g., Wm. Skinner & Sons’ Ship-Building and Dry-Dock Co. v. Houghton, 92 Md. 68, 48 A. 85. Obviously, this result does violence to the indemnity theory of insurance, but as one commentator observed, it represents an attempt by the courts to “accommodate the contract to lay expectation without tarnishing the ideal of freedom of contract.” Young, Some “Windfall Coverages” in Property and Liability Insurance, 60 Colum.L.Rev. 1063. The rationale is that if a vendee pays the full contract price for property which has been damaged or destroyed by fire, it is only equitable to allow him the benefit of any insurance proceeds rather than to give the vendor both the insurance proceeds and the proceeds of sale.

Paramount concedes that it is difficult to quarrel with the equity of this rule, but strenuously argues that the rule should have no application when the vendees have secured their own insurance policy. We agree.

Although none of the decisions applying the constructive trust theory purport to base the result on the fact that the vendee had no insurance, yet it appears that such was the situation in all but two cases. The two exceptions are Vogel v. Northern Assurance Co., 219 F.2d 409 (3rd Cir.), and Insurance Company of North America v. Alberstadt, 383 Pa. 556, 119 A.2d 83. In these cases, the vendee was allowed to benefit from both his and the vendor’s policies, even to the extent of being allowed to profit from the fire in the Vogel case. It must be observed, however, that both cases applied Pennsylvania law that an insured’s loss is determined as of the date of the fire regardless of any subsequent developments. See Dubin Paper Co. v. Insurance Company of North America and State Mutual Fire Insurance Co. v. Updegraff, supra.

We believe the better result to be that if a vendor is entitled to specific performance under a contract of sale and thereby collects the full purchase price despite fire damage to improvements, he has suffered no legal loss. As it is not before us here, we leave open the question of whether, where the vendee has no insurance, there can be recovery on the vendor’s policy subject to a constructive trust for the ven-dee, who is often ignorant of his legal liability in such a situation. We believe that there is nothing in the present case, however, which would require such an exception to the principle that an insurance policy is basically a personal, indemnity contract.

Here we are not dealing with an unwitting risk bearer, but rather with vendees who are protected by their own insurance. Also, we do not have a situation where the vendors originally intended for their policy to protect the vendees, for they specifically rejected such a provision. Further we note that in the vendors’ own policy there is a provision that Paramount’s liability should ngf exceed “the interest of the insured.” [ After the contract of sale, the interest of Paramount’s insured became the amount of the unpaid purchase price and, as to that interest, they suffered no loss. Accordingly, there is no liability under the Paramount policy, and Paramount’s insureds had no rights to assign to the ven-dees.

Aetna also makes the contention that the entire loss must fall on Paramount because the Aetna policy was in escrow and had not taken effect at the time of the fire of July 7, 1958. The policy is dated June 25, 1958, and was delivered to the vendees on that date. It is undisputed that the ven-dees had an insurable interest when the policy was issued, and the fact that all the papers were being held in escrow, pending closing of the sale would not render the policy ineffective as between insurer and insureds.

As an alternative point, Aetna urges that the trial court’s summary judgment must be reversed to determine, as issues of fact, whether the contract here was one of sale and whether the Aetna policy was in escrow and of no effect. We find no conflict in the facts. The depositions of the witnesses and ■Paramount’s uncontroverted affidavits set out the facts surrounding the transaction from the date of the signing of the contract until the date of closing. The legal nature of the contract was a question of law, as was the effect of Aetna’s policy being in escrow.

For the reasons stated herein, the judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

GRIFFIN, WALKER and NORVELL, JJ., dissenting.

GRIFFIN, Justice

(dissenting).

I do not agree that all of the loss from the destruction of the improvements by fire should fall on Aetna. I believe the law requires that the loss be prorated between Aetna and Paramount as decreed by the Court of Civil Appeals.

The majority opinion recognizes that Paramount’s insured had an insurable interest in the property at the time of the issuance of that policy. The majority reasons that the liability of Paramount to the insurer is to be determined by events happening after the loss by fire has occurred. The majority say “we note that in the vendors’ own policy there is a provision that Paramount’s liability should not exceed ‘the interest of the insured.’ After the contract of sale, the interest of Paramount’s insured became the amount of the unpaid purchase price and, as to that interest, they suffered no loss.” This statement is based upon the theory that the vendors’ debt was paid by the purchaser after the fire.

Such a holding is in direct violation of and contrary to the language of the policy. The policy provides: “Loss on building items shall be payable to ASSURED address - as Mortgagee or Trustee, as their interest may appear at time of loss, subject to Mortgage Clause (without contribution) printed elsewhere in this policy.” (Emphasis mine.) Clearly the loss of the building and the time of the fire are contemporary and simultaneous. The mortgage clause referred to above has no application to our cause. Further, the policy also contained a provision that the liability of the company “shall not exceed the actual cash value of the property at the time of loss.” (Emphasis mine.) Thus again this clearly fixes the date of the fire as the ■date on which liability is to be determined.

Let us apply the majority reasoning that Paramount only insured the vendor for the unpaid balance of his purchase price to the fact situation in this cause. Take the date fixed by the policy for determining this interest — which is the “time of loss” — we find that on the date of the loss, which is the date of the fire, the purchaser owed the vendor $12,675.00, plus the contract interest. This figure is computed by subtracting from the total contract price of $15,250.00 the sum of $1,200.00 paid at the time the contract was signed, less eleven monthly payments of $125.00 each totalling $1,375.00. By the terms of the policy contract between the vendor and Paramount, Paramount’s liability became fixed to vendor for this sum of $12,675.00. Purchasers hold an assignment from vendor of all his rights against Paramount. Paramount has never paid this liability. Therefore, I maintain that Paramount is still liable on its policy to the assignees of vendor, and its liability is to be prorated in accordance with the terms of the policy. ■

No public policy is violated; no statute is offended by the parties to the insurance contract making the contract which they did make. Suppose the vendor and purchaser had entered into a contract providing for $5,000.00 cash payment, the balance to be paid in monthly instalments of $125.00 each due on the 10th day of each successive succeeding month. This would require 82 months, or approximately seven years; to pay the deferred payments. Vendor could not be forced to take his balance in one lump sum. He could insist on the monthly payments as set out in the contract in order to earn the interest. Under the majority holding Paramount’s liability would not be known until the last payment had been made. This example illustrates very clearly the fallacy of the reasoning of the majority opinion.

The interests of the vendors and the purchasers were separate and distinct interests. Appleman, Insurance Law and Practice, Vol. 5, § 3057 at p. 180, et seq. The assignee of a claim under the policy after a loss stands in the same position as the assignor. Id., § 3462 at p. 643; Id., Vol. 4, § 2181 at p. 53. The vendor, under the contract of sale herein, had an insurable interest in the property destroyed. 24B Tex.Jur. 234, § 95. Vendor retained the legal title to the property until the purchase price was paid. 43A Tex.Jur. 290, § 253, and authorities there cited.

There is an exhaustive annotation entitled “Rights of vendor and purchaser, as between themselves, in insurance proceeds” in 64 A.L.R.2d, pp. 1402-1420. Section 4 therein states the general rule to be that “where the purchaser as equitable owner will bear the loss occasioned by a destruction of the property pending completion of the sale, and the contract of sale is silent as to insurance [as our contract here is], * * * the proceeds of the vendor’s insurance policies, even though the purchaser did not contribute to their maintenance, constitute a trust fund for the benefit of the purchaser to be credited on the purchase price of the destroyed property, the theory being that the vendor is a trustee of the property for the purchaser.” Supporting this rule cases are cited from Alabama, California, Georgia, Iowa, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New York, North Dakota, Ohio, Pennsylvania, South Dakota, Washington and Canada. For this result to be reached, the vendor’s policy must be valid as of the date of the fire. We have been cited to no Texas cases in point, nor have we found any in our research.

I would affirm the judgment of the Court of Civil Appeals.

WALKER and NORVELL, JJ., join in this dissent.


author: SMITH, Justice.

text:
    COMBINED AMERICAN INSURANCE COMPANY, Petitioner, v. Ruby Lee BLANTON, Respondent.
    No. A-8539.
    Supreme Court of Texas.
    Feb. 7, 1962.

      Brundidge, Fountain, Elliott & Bateman, Roger A. Hansen, Dallas, for petitioner.
    Allen Clark, Harold F. Curtis, Jr., Green-ville, for respondent.
   SMITH, Justice.

This suit was brought by the Respondent, Ruby Lee Blanton, hereinafter referred to as Plaintiff, against Petitioner, Combined American Insurance Company, hereinafter referred to as Defendant, to recover the face value of a policy of insurance, insuring the life of her husband, J. 0. Blanton, who died on August 8, 1958 as a result of a shotgun wound. The policy of insurance in question insured Blanton against loss of life caused by bodily injuries effected exclusively of all other ccmses by accidental means. The trial court, without the intervention of a jury, rendered judgment for the Plaintiff. The Court of Civil Appeals has affirmed. 348 S.W.2d 85.

We have concluded to reverse the judgments of both the trial court and the Court of Civil Appeals and render judgment that Plaintiff take nothing.

The Court of Civil Appeals concedes that the facts and circumstances of the record “lead to a strong belief that Blanton committed suicide”, but has held that the judgment of the trial court must stand, unless the evidence established that the “shooting was intentional to that degree of conclusiveness which precludes a reasonable doubt to the contrary."

The Court of Civil Appeals has held that, the evidence of suicide “does not overcome the well-known presumption against suicide, and therefore leaves a presumption that Jasper O. Blanton died as a result of an accident unassailed.”

The judgment in favor of the Plaintiff must fall unless the implied finding (no findings of fact or conclusions of law were filed) of the trial court that Blan-ton died by accidental means is supported by probative evidence. The burden of pleading and proving that the death of Blanton was by accidental means rested with the Plaintiff. International Travelers’ Association v. Bettis, 120 Tex. 67, 35 S.W.2d 1040; Langlitz v. American National Insurance Co., Tex.Civ.App., 146 S.W.2d 484, er. dism., judgment correct. The Plaintiff has failed to discharge this burden. Since the opinion of the Court of Civil Appeals recites the facts in detail, we deem it unnecessary to extensively detail the evidence here. It is sufficient to say that none of the facts tend to show death by accidental means. All of the evidence is inconsistent with the theory that death was by accident. Therefore, the implied finding that death was by accident cannot stand. While it is true there is a presumption of law against suicide, nevertheless, presumptions may be overcome by testimony. When the only reasonable inference which can be drawn from all the evidence is that death was the result of suicide, the presumption against suicide is rebutted. In the present case, suicide is the only reasonable hypothesis that is consistent with the evidence and the presumption against suicide cannot prevail against such evidence. Mutual Life Insurance Co. v. Tillman, 84 Tex. 31, 19 S.W. 294; Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763. A legal presumption of the type involved here is a true presumption, which has been defined as a rule of law laid down by the courts which attaches to facts certain procedural consequences. McCormick & Ray’s Texas Law of Evidence, 2d Ed. Sec. 51, p. 57. It places on the party against whom it operates the burden of producing evidence. The defendant has rebutted this presumption with facts showing suicide. Therefore, the presumption is not evidence and is not to be weighed or treated as evidence. McCormick & Ray’s, supra, pp. 60, 69, Sections 53, 56; 20 Amer. Jr. pp. 170, 171, Sec. 166.

The facts have been shown in this case. Ordinarily, presumptions must give way when in conflict with clear evidence such as we have here. In Jones on Evidence (2d Ed.), Sec. 32, it is thus stated:

“ * * * Courts have frequently remarked that presumptions are only intended to take the place of facts and cannot be relied upon where the facts are shown; or that no presumption can stand in the face of facts. According to such authorities a presumption is an artificial thing, a mere house of cards, which one moment stands with sufficient force to determine an issue, but at the next, by reason of the slightest rebutting evidence, topples utterly out of consideration of the trier of facts.”

The Plaintiff relies upon the case of United Fidelity Life Ins. Co. v. Adair, Tex.Civ.App., 29 S.W.2d 940; Tex.Com.App., 29 S.W.2d 944. That case involved a life policy which contained a provision that if the insured, whether sane or insane, should die by self destruction within one year from the date of the policy, the amount of payment under the policy would be limited to the amount of the premiums actually paid. The insurer relied upon the defense of suicide or self-destruction. The Court refused to follow the defendant’s contention that its evidence showed as a matter of law that the insured fired the pistol with suicidal intent. In the present case, the Plaintiff is suing on a policy limiting liability to death by accidental means. Suicide was not an affirmative defense. The negative of suicide was an element of Plaintiff’s case. In other words, the burden of proof was upon Plaintiff to show that the death was within the terms of the policy and that Blanton was insured against “loss caused by bodily injuries * * * effected exclusively of all other causes by accidental means * *

Plaintiff cites the recent case of Great Southern Life Insurance Company v. Watson, Tex.Civ.App., 343 S.W.2d 921, wr. ref. n. r. e., as being controlling here. In determining whether or not the Watson case is controlling, it is well to bear in mind that the ultimate conclusion reached by a court in a case of this type must necessarily rest upon the facts. The Court of Civil Appeals concluded there were facts introduced to support the finding of the trial court that Watson’s death was caused by accidental means. In the present case, as heretofore stated, there is no evidence which would support a reasonable inference that Blan-ton’s death was caused by accidental means.

Since the Plaintiff has sued here on a policy of insurance limiting liability to death by accidental means, and since there is no evidence of death by accidental means, the judgments of the trial court and the Court of Civil Appeals are both reversed, and judgment is rendered that Plaintiff take nothing.