author: STONE, Presiding Judge.

text:
    J-G-W-, Plaintiff-Respondent, v. J-L-S-, Defendant-Appellant.
    No. 8547.
    Springfield Court of Appeals. Missouri.
    March 31, 1967.

      William A. Moon, Springfield, for defendant-appellant.
    Wayne T. Walker, Springfield, for plaintiff-respondent.
   STONE, Presiding Judge.

This appeal brings for review a bitter contest concerning the custody of a boy N-, now six years of age, and a girl M-, now five years of age (hereinafter jointly referred to as the children), born of the marriage of plaintiff herein, the mother, and defendant herein, the father, which disintegrated in divorce on January 18, 1963. On that date, the mother voluntarily dismissed her petition for divorce, and the court entered a decree granting the father a divorce on his cross-complaint, and awarding major custody of the children to him with minor custody to the mother “on weekends” and “both parties to have the right of reasonable visitation.”

The present proceeding was instituted on September 8, 1965, by the filing of the mother’s motion to modify in which she averred, inter alia, that at the time of divorce she had no income and no place to keep the children; that “defendant [the father] agreed to and did keep said children with his mother, who was a fit and proper person”; that the father subsequently married a woman (hereinafter frequently referred to as the stepmother) who had two children; that the living quarters provided by the father for the children and the stepmother’s children, four in all, are inadequate; that the stepmother “mistreats her stepchildren” and they “have become emotionally upset, nervous and dissatisfied”; that the mother also has remarried and her husband (hereinafter frequently referred to as the stepfather) is “a person of good character” who is willing and anxious for the mother to have full care and custody of the children; and that the welfare of the children would be served by granting full custody to the mother with a reasonable sum for child support.

In his answer to the motion to modify, the father generally denied that “the circumstances have materially changed” since entry of the original decree, specifically negated most of the averments in the mother’s motion to modify, alleged that the mother’s “own actions,” while the children were with her on weekends, caused them “to be nervous and upset upon being returned” to the father, and prayed the court not only to deny the mother’s motion but also to grant affirmative relief by deleting from the original decree the provision for the mother’s minor custody on weekends and granting to the mother, in lieu thereof, the right of reasonable visitation.

After hearing, the trial court entered judgment finding the issues in favor o.f the mother, sustaining her motion to modify, awarding her full care and custody of the children with the right of reasonable visitation to the father, and ordering the father to pay $20 per week as child support and $200 as an attorney’s fee. On this appeal by the father, his position is that “the evidence of the [mother] shows some change in conditions but it is far short to warrant modification of the decree and awarding custody of the two children to [the mother].” We approach the record, mindful of the applicable principle that, although proof of a change of condition is a prerequisite to modification of a custodial order [Simmons v. Trenter, Mo.App., 327 S.W.2d 936, 939(4); Lewis v. Lewis, Mo.App., 301 S.W.2d 861, 863(3)], “it is not sufficient simply to show some change in circumstances but that modification is justified and permitted only upon proof of changed conditions affecting the welfare of the children to a substantial or material extent [Application of Shreckengaust, Mo. App., 219 S.W.2d 244, 247(3); Hawkins v. Thompson, Mo.App., 210 S.W.2d 747, 751-752(3)] and in a beneficial manner. Frame v. Black, Mo.App., 259 S.W.2d 104, 108(4) ; Watkins v. Watkins, Mo.App., 230 S.W.2d 778, 783; Schumm v. Schumm, Mo.App., 223 S.W.2d 122, 126(7).” (All emphasis herein is ours.) Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 73-74(3); McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 39(18). See Thomas v. Thomas, Mo.App., 357 S.W.2d 208, 210(2); Jeans v. Jeans, Mo.App., 348 S.W.2d 145, 154—155; Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, 367(2).

In our inquiry as to whether or not there was a substantial and material change of condition affecting the welfare of the children subsequent to entry of the divorce decree of January 18, 1963, it becomes appropriate to ascertain first what condition existed at that date. Garbee v. Tyree, Mo.App., 400 S.W.2d 193, 195-196(3)-, S— v. G-, Mo.App., 298 S.W.2d 67, 76(8). The father then was only twenty-four years of age, the mother just twenty-one. Although their material possessions were of relatively small value, the parties entered into a “Property Settlement Agreement,” the only portion of interest here being “that [the father] is a fit and proper person to have the care and csutody of the minor children of the parties” and that, subject to approval of the circuit court, the father should have their major custody with the mother to have the children “on Saturday and Sunday of each week” and with each party to have reasonable visitation rights while the children were in the custody of the other party. As we have seen, that was the custodial arrangement embodied in the divorce decree.

Upon trial, the mother explained that her acquiescence in this custodial arrangement was a product of necessity. In her words, “I had no choice. I wasn’t working . . . I had no way to keep the kids, no money, no place to take them. My folks were divorced, my mother was sick . . . she couldn’t help me care for them.” In her fleeting appearance on the witness stand, the maternal grandmother explained that she had been in the hospital “with a nervous breakdown . . . was taking two and three shots a week for my nerves . was taking tranquilizers at the same time” and that she was neither physically nor financially able to care for the children. Other evidence suggested that the maternal grandmother had both alcoholic and psychiatric problems.

The mother insisted that she had consented to the father’s major custody of the children because of his oral agreement that the paternal grandmother, whom the mother recognized as “a fit and proper person,” would care for the children. Although the father denied any such oral agreement, for a considerable period of time after the divorce both the father and the children did reside with his parents and, in fact, the paternal grandmother did care for the children. Upon trial, the mother had no complaint about the conduct of the paternal grandmother — she “was always nice” and “there wasn’t any trouble at all.” As indicating the mother’s alleged want of interest in the children during that interval, the father testified that the mother took the children only “maybe a third” of the weekends, and the paternal grandmother estimated that the mother “missed a third.” The mother, agreeing with counsel that she had t^ken the children only “about a third of the time when [she] should have [had] them,” offered the explanation that was so “because when I got there, they weren’t home, that’s why.”

One L-, then twenty years of age, who later became the stepmother of the children, first entered the picture in October 1964 when she, together with her two sons “very near the same age?” as the children, moved into a two-bedroom home on K- Street about six or seven blocks from the home of the paternal grandparents in one of the larger cities within our territorial jurisdiction (hereinafter referred to as the city). From that time forward, the father, already acquainted with L-, who was married but npt living with her husband, began to take the children to L’s house where (as the father put it) “she baby-set for me.” “They [the children] stayed there a lot,” virtually every day; and, although “it wasn’t regular practice” for the children to remain overnight, sometimes they did. The father himself was at L’s house almost every day and every evening, sometimes until a late hour but (so he insisted) never “all night,” even though his automobile at times remained outside her house overnight — a circumstance explained by L- as resulting when she would need transportation the following day and the father would leave his automobile at her house, walk home in the evening, and “catch a ride to work the next day.” In any event, both the father and the children were at L’s house so much of the time that L’s next-door neighbor, called as a witness for the father, thought that the children and L’s two sons were “all brothers and sisters” and assumed that the father and L-were married— “if they wasn’t married, I didn’t know it.” During this period, the father and L-occasionally went to stock car races and cafes and, on one Sunday in 1964, to “a night club” or beer tavern. When the mother’s counsel suggested that “you [L-] were doing things that weren’t quite accepted by society,” L-retorted “I was separated, and I feel that I had the right to do as I pleased ... I am not the only person who has.”

During April 1965, L— and her two sons moved from the house on K-Street in the city to her mother's home in a small town some fifteen miles distant (hereinafter referred to as the small town) ; and, “because of difficulties” in the mother’s home, during June 1965 L- and her sons moved to another address in the small town. It is not clear how frequently the children were with L- during the period of her residence in the small town, but we are told that she did keep them overnight “once or twice” and that the father visited her “almost every night.” On July 3, 1965, L-’s marriage was terminated by a decree of divorce entered in another county ; and on August 7, 1965, L-became the stepmother of the children by virtue of her marriage to the father. The father, the stepmother, the children and the stepmother’s sons immediately moved into, and occupied at the time of trial, the same two-bedroom house on K- Street where the stepmother and her sons had resided previously. The father and the stepmother used one bedroom, the four youngsters the other bedroom with the two older boys sleeping in a bunk bed and the youngest boy and girl “in baby beds.” The stepmother opined that, for children four and five years of age, the house was “large enough.”

The father testified that the children and the stepmother’s sons “get along just like they was brothers and sisters,” and the stepmother commented more expansively that “they get along quite well . . . better than I might have expected . . . they play well together . • . . they take up for each other.” With reference to the stepmother’s care of the children, the father said that she treated them “like she does [her] boys” and that she never abused them, and the stepmother’s emphatic assertions were to the same effect. Her professed feeling for the children was reflected in this statement: “I love [the] children very much. I didn’t give birth to them, I didn’t have the pain that I had when I gave birth to my own [sons], but I feel having the pain doesn’t make a mother. I have taken care of [the] children day after day, I have worked at being a mother, and you can’t be a mother unless you work at it. And I do love them very much.” Witness after witness, including not only five kinsfolk (i. e., the stepmother’s mother, brother and sister-in-law and the father’s mother and sister) but also eight other persons who had visited in the father’s-stepmother’s home (i. e., an insurance agent, four neighbors and three friends), attested to the stepmother’s excellent care and impartial treatment of the children. Although the mother’s motion to modify included a broad charge of mistreatment of the children by the stepmother, there was no evidence of such mistreatment and counsel for the mother has not relied upon that charge.

At the time of trial, the father had been employed for five “seasons” as a truck driver for a large highway construction company. His wages for a forty-hour week were about $125, but his income varied because his employment was, to some extent, seasonal. The stepmother stated that the father provided adequately for the family, and there was no evidence of financial difficulty.

We retrace our steps chronologically to take a closer look at the mother and the stepfather. The record sheds little light upon the mother’s place of residence, conduct and employment between her separation from the father in August 1962 and her marriage to one W- on May 9, 1965. We do know that, after the separation and prior to entry of the divorce decree on January IS, 1963, the mother worked in a bar in Kansas City for “around three months.” She identified her place of employment only by the generalized description that “it wasn’t just a bar; it was a very nice, exclusive cocktail lounge,” coupled with the related comment “that was an honest, decent living.” It is inferable that, during the remainder of the period prior to her marriage to W-, the mother lived in the city; but the only information about her during that period, injected without objection or denial, was offered by A-, W’s first wife, who, at a time not fixed more definitely than that it was “close to a year” prior to December 2, 1965 (the date of hearing in the instant proceeding), divorced W- and was awarded care and custody of the two children born of that marriage (i. e., two girls, then about eight and five years of age, one of whom was afflicted with cerebral palsy), and the sum of $40 per week for child support. When asked “did your husband [W-] live with [the mother] for almost a year before- -,” A- interrupted with this response: “I don’t know the period of time. And I wish you would explain what you mean by ‘living’ because I don’t want to condemn people. But if you mean I found them in the morning about five o’clock in her apartment — yes.” Continuing, counsel inquired “over what period of time did! this go on prior to your divorce” and elicited the answer, “several months; we were six months getting the divorce and it was quite a while before that.”

In any event, W— became the stepfather of the children by virtue of his-marriage to the mother on May 9, 1965. That was during the period of about one year when the stepfather was “painting for himself.” For some six weeks to two' months during the Summer of 1965, the stepfather and the mother ran a bar in the-small town; but they “let the lease go”' (so the mother said) because “we didn’t like it.” Returning to the city, the stepfather was a painter “as long as the weather held out”; but, before the hearing on December 2, 1965, he had reverted to tileset-ting, an occupation he had followed for some thirteen years prior to the painting interlude. As a tilesetter, the stepfather did not receive a fixed wage but was paid for tile actually laid, with his weekly earnings fluctuating within the range of $110 to $130 per week (so he said) and with his “take-home” income approximating $100 per week (so the mother estimated).

About August 1965, the stepfather and mother moved to a “mobile park” near the city, where they lived in a trailer described as ten feet in width and fifty-five feet in length, with three bedrooms, two baths, a living room and a kitchen. They were paying $90 per month on the $5,350 unpaid balance of the purchase price of the trailer. The rental for the lot in the trailer park was not shown.

Although obligated by judgment to pay '$40 per week to A-, his first wife, for support of the two girls born of that marriage, the stepfather was $1,080 in arrears in those payments at the time of hearing. His proffered excuse for admittedly failing to make any child support payment for ■several months was that, when he went to A-’s home to get the girls, she “raised a fit and told me to leave and not come back .and said money didn’t mean that much to her.” When instant plaintiff (the mother) was interrogated about the stepfather’s delinquency, she said “it isn’t true that we ■didn’t pay it because we didn’t have the money; it’s because . . . she [A-] •didn’t want it [child support], she wouldn’t take it; she refused to let him see the [two girls] so she dropped it.” Further defending the stepfather’s failure to support his .girls, the mother rationalized the situation in this fashion: “I can’t see that he [the stepfather] is behind one payment, because :she [A-] refused to take it, because she ■didn’t want him to see the [two girls], so she would drop it and said, T don’t want the money, keep it,’ and run us off and threatened to call the police if we come back. Now why pay her when she don’t want it?”

However, neither the conduct nor the testimony of A-, who at the time of hearing was working in a manufacturing plant, indicated that she had rejected or renounced child support from the stepfather. On the contrary, about June 1965 and again within a month before the hearing A-had sought the assistance of the prosecuting attorney in her efforts to extract child support from the stepfather; and he conceded that, on the first of those occasions, “they came out and got me one night.” After the prosecuting attorney contacted him on the second occasion, the stepfather paid $20 to A-less than a week before the hearing. He had called A-the previous week (so she testified) and “said that his trailer payment was due and he couldn’t afford it [the child support payment] that week, but that I could have the remainder of his check the next week.” As for the arrearage of $1,-080, A-declared her firm intention to collect it, if at all possible. Against this sorry backdrop of nonsupport of his own girls, the stepfather glibly affirmed at the hearing that he could and would “also help support” the mother’s children, for whom he professed considerable affection — “I think a lot of them; we have a lot of fun . . . and we get along real good together.”

The record includes evidence reflecting the high temper, uncurbed conduct and unseemly language of both the mother and the stepmother L-. Perhaps the most egregious example of this was what we may refer to as the hospital scene in the Fall of 1965, which involved the two women and one of the children, namely, the girl M-, who, after several hours of intermittent wrangling between the father seconded by the stepmother on the one hand and the mother seconded by the stepfather and the maternal grandfather on the other hand, had been hospitalized for treatment of a severe episode of croup. Either the mother or the stepmother (they disagree as to which one) was holding the girl M- in her hospital room; but, regardless of which one held the girl at the moment, the adult participants agreed that one of them (each again pointing the finger of blame at the other) jerked and pushed the other in an effort to retain or gain (depending upon whose version is accepted) physical possession of the girl, and that the pushing and shoving culminated in the stepmother’s slapping of the mother. The mother’s account was that, although she “didn’t say a word” to the stepmother, the latter “started hollering, ‘Let me have that baby or I will slap you,’ so I said, ‘Go ahead,’ and she did.” But the stepmother, conceding that “I did strike her,” asserted that she thus reacted only because the mother, jerking and pushing, “cursed me and the child.” If any aspect of this donneybrook might be said to have reflected credit upon either participant, it is the fact that, although she did not turn the other cheek, the mother did not return the stepmother’s blow but simply left the scene.

We also briefly note other testimony pertaining to the mother’s language and conduct. The paternal grandmother, whose testimony as a whole was not suggestive of malice, told of a telephone conversation in which the mother had called her “an old bitch.” A-, the stepfather’s first wife, said that the mother called her at her place of employment and “swore over the phone so loud that the secretary to my boss . and . . . several other business ladies around there . . . heard it” and that the mother said, among other things, that “if I [A-] came between her getting the children, that she would be out there that evening and she wanted me to understand that.” Admitting the call but denying the profanity, the mother’s milder version was that she said “A-, you have got your kids, let me get mine . . . . We will deal with you when this is over. . I want my kids; I don’t want you in any way to try to keep me from getting them.”

Both parties and their present spouses made reference to their church affiliations. The father testified that he was a member of a church .in a community some thirty-five miles from the city but that he and the stepmother “occasionally” attended a local church. More enthusiastically but mayhap less carefully, the stepmother, although professing no church membership, asserted that “we go every Sunday.” The mother was no more scrupulous and precise in her testimony. On direct examination, she identified the church to which “we [she and the stepfather] belong” and stated that “always on Sunday morning, we take them [the children] to Sunday school and church; we never let them miss . . . the children have gone there ever since we got married [on May 9, 1965] ... we haven’t missed yet ... I don’t want to see them taken out of Sunday school and church for any reason.” On cross-examination, the mother’s testimony was that she had been attending church for “possibly three months” prior to the hearing on December 2, 1965 — “I have been going, not regularly in my membership (sic) but we have been attending,” that she and the stepfather had joined the’ church “approximately two weeks ago,” and that the children had been going to Sunday school there “approximately three months.” The stepfather limited himself to the simple statement that “we joined it [the church] during a revival two weeks ago.” Although the parties and their present spouses thus evidenced their common recognition of spiritual needs and moral values, we confess our inability to accord much significance to any of their self-serving statements of piety or religiosity, patently contradicted on the record by testimonial accounts and admissions concerning their language and conduct, for it is “by their fruits ye shall know them.” Matthew 7:20.

With the parties involved in this proceeding being of the disposition and in the frame of mind exemplified by the foregoing factual review, friction frequently was generated by personal contacts between the mother and the father or the stepmother when, after the father’s remarriage on August 7, 1965, the mother did exercise her right to weekend custody and to reasonable visitation at other times. Thus the mother complained that “on several occasions . I can’t even get in the front door to see the children, I have to stand on the porch and they come to the door for maybe two or three minutes” and deplored her inability to take the children to a “neighbor child’s birthday party” one evening and to take them bowling another evening. Answering these complaints, the stepmother averred that, on the single occasion when the mother was denied admission to the father’s-stepmother’s home and the children went to the front door, the father was not then at home and the mother was told to come back when the father returned from work about one hour later, and that the request to take the children to the “neighbor child’s birthday party” similarly was denied for the time being “because the father was not home” and “she [the mother] told me that I had no right to say anything about the children [so] I told her to come back when their father was home.” The bowling request received no further testimonial attention.

The mother particularly emphasizes the charge in her motion to modify that the “children have become emotionally upset, nervous and dissatisfied with their home life.” The evidence bearing on this allegation principally pertained to the boy N-, who, according to the mother, told her “that he didn’t want to live at [the father’s] house” and, when returned there at the close of the mother’s weekend custodial periods, cried and did not want to go inside. We cannot accept the mother’s testimonial suggestion that custody should be changed to her because “he [the boy N-] is five and I think he is old enough to know what and where he wants to go,” for certainly the wishes of a child of that tender age are not to be indulged if they are inconsistent with attainment of the paramount objective, i. e., furtherance of the child’s welfare. Graves v. Wooden, Mo.App., 291 S.W.2d 665, 669(4); Fordyce v. Fordyce, Mo.App., 242 S.W.2d 307, 313-314(2); Wells v. Wells, Mo.App., 117 S.W.2d 700, 705(16-18). However, we are impressed by the ready agreement of the father that “a lot of times they did come back emotionally upset, especially the boy” and of the stepmother that “Sunday evenings, when they come home, they are awfully upset.” True, both the father and the stepmother insisted that this was the result of what the mother told the children, that within fifteen to thirty minutes the children were normal again, and that they remained happy until “Saturday mornings [when] they get upset because they have to leave.” Regardless of that, it is the established fact of the “emotionally upset” condition incident to weekend transfers of custody that assumes grave significance here and leaves us in no doubt but that the original custodial arrangement, entailing a physical and an emotional uprooting and adjustment for the children every weekend, affording to the interested adults frequent opportunities for the reactivation of old resentments and suspicions and for the creation of new ones, and exposing the children to the bickering and backbiting of those adults, no longer serves the best interests of the children and should be eliminated. See M- L- v. MR — , Mo.App., 407 S.W.2d 600, 604(11); Wood v. Wood, Mo.App., 400 S.W.2d 431, 437(8); Kimble v. Kimble, Mo.App., 399 S.W.2d 630, 634(7).

Although the decree of modification under review does eliminate the weekend custodial transfers, the question remains as to whether such elimination by the granting of full custody to the mother, subject only to the father’s right of reasonable visitation, would serve the best interests of the children. We are cognizant of the broad general principle, upon which the mother’s counsel leans heavily, that, all things being equal, the custody of children of tender years belongs with their mother. See cases collected in 11 West’s Missouri Digest under Divorce, <®=>298(6), and in 22A West’s Missouri Digest under Parent and Child, ⅛5’2(3.2). But as we recently commented, “all things never are exactly equal” [Garbee v. Tyree, supra, 400 S.W.2d at 199]; and a profusion of cases convincingly demonstrates that the courts do not hesitate to entrust children into their father’s care and custody, where the best interests of the children will be served thereby. M-L-v. M-R-, supra, 407 S.W.2d at 603(5), and cases there collected. The only rigid, inflexible and unyielding principle in custody cases is that the welfare of the child is paramount and supreme [see cases collected in 11 Missouri Digest under Divorce, in 22A Missouri Digest under Parent and Child, ®^2(3.1), and in 15A Missouri Digest under Infants, <S=319.2(2)], and perplexing problems of custody must be settled not by applying academic rules or by mouthing pious platitudes but rather by determining, insofar as is humanly possible, what will best serve and promote the children's welfare. P-D-v. C- S-, Mo.App., 394 S.W.2d 437, 446; C- v. B-, Mo.App., 358 S.W.2d 454, 459.

The mother’s counsel also emphasizes the familiar principle of appellate review that the judgment nisi should not be set aside unless clearly erroneous and due regard should be given to the opportunity of the trial court to judge of the credibility of the witnesses. V.A.M.R. Rule 73.01 (d) ; V.A.M.S. § 510.310(4); In re Neusche, Mo.App., 398 S.W.2d 453, 457(8). But the findings of the trial court are in no wise binding upon us [Campbell v. Campbell, Mo.App., 281 S.W.2d 314, 319; Easley v. Easley, Mo.App., 266 S.W.2d 28, 31(1), and cases there cited]; and, upon this review de novo, it becomes our duty to examine and ponder the entire record, to determine the right and justice of the matters in controversy, and to act upon that determination. Hurley v. Hurley, supra, 284 S.W.2d at 75 (8); Hawkins v. Thompson, Mo.App., 210 S.W.2d 747, 751(1); Parks v. Cook, Mo. App., 180 S.W.2d 64, 68(1). Reluctant as we are to disagree with the capable and conscientious trial judge, appellate review would become an empty formality [Prudot v. Stevens, Mo.App., 266 S.W.2d 756, 758] and we would be unworthy of the trust reposed in us, if we yielded our firm convictions simply because he, upon the same state of facts, found differently. Campbell v. Campbell, supra, 281 S.W.2d at 319; Hurley v. Hurley, supra, 284 S.W.2d at 75; Shilkett v. Shilkett, Mo.App., 285 S.W.2d 67, 72; Graves v. Wooden, supra, 291 S.W.2d at 670(9). Being unable to escape the conclusion that the record does not afford reasonable support for the finding, implicit in the judgment under review, that the best interests of the children would be served by awarding full custody to the mother and, as an inescapable incident thereto, placing them under the influence, guidance and supervision of the stepfather also, the result reached by the trial court does not comport with our conscience and we are constrained to set aside that judgment. Dodds v. Dodds, Mo.App., 353 S.W.2d 810, 814.

In these circumstances, we are authorized and directed to make final disposition of the case “[u]nless justice requires otherwise.” V.A.M.R. Rule 83.13(c); V.A.M.S. § 512.-160(3). However, any final disposition at this time necessarily would be predicated upon a record sixteen months old, reflecting testimony taken at a hearing less than four months after the father’s marriage to the stepmother and less than seven months after the mother’s marriage to the stepfather. That record indubitably reflects immaturity and instability on the part of both parents and their present spouses and unquestionably demonstrates that the trial judge was not offered a clear choice between black and white but rather was called upon to select the lighter shade of gray. C- v. B-, supra, 358 S.W.2d at 459; E- v. G-, Mo.App., 317 S.W.2d 462, 468. In view of the shifts in residence and employment during the period covered by the record, certainly we could not act now with any degree of confidence and assurance that other substantial and material changes , of condition have not occurred since the hearing on December 2, 1965. At best, any final disposition we might now direct would verge on speculation and experimentation, which we are adjured to shun. Irvin v. Irvin, Mo.App., 357 S.W.2d 254, 256; S-v. G-, supra, 298 S.W.2d at 77(15); Davis v. Davis, Mo.App., 254 S.W.2d 270, 275; Irvine v. Aust, Mo.App., 193 S.W.2d 336, 342.

With an eye single to the best interests of the children, we conclude that justice requires that the judgment of modification entered on December 10, 1965, be set aside and for naught held; that the cause be remanded to the circuit court for the taking of additional testimony covering the period subsequent to the hearing of December 2, 1965, and pertaining to conditions presently existing [cf. H- v. D-, Mo.App., 373 S.W.2d 646, 655]; that, upon the evidence heretofore and hereafter adduced, the circuit court shall enter such modified custodial judgment as will serve and promote the best interests of the children, subject only to our direction that frequent shifts in custody shall be eliminated; and that the costs upon this appeal should be taxed against, and paid by, plaintiff-respondent and defendant-appellant, share and share alike. It is so ordered.

HOGAN and TITUS, JJ., concur.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Orville W. EDWARDS, Plaintiff-Respondent, v. John F. HREBEC, Defendant-Appellant.
    No. 8624.
    Springfield Court of Appeals. Missouri.
    March 30, 1967.

      Stanley P. Clay, Joplin, for defendant-appellant.
    Edward G. Farmer, Jr., Joplin, for plaintiff-respondent.
   TITUS, Judge.

Germination of this cause occurred September 15, 1965, on Seventh Street in Joplin, Missoüri, in a fracas between a Ford and a Chevrolet. The Ford was owned by the plaintiff-respondent, Orville W. Edwards, and driven by his son. John F. Hrebec, the défendant-appellant, operated the Chevrolet which belonged to the Southwestern Bell Telephone Company. Edwards filed suit for his automobile damage in the Magistrate Court of Jasper County, naming the telephone company as the sole defendant. A transcript of the proceedings had in the magistrate court was, without objection, introduced into evidence when the case was tried anew in the circuit court. The transcript was stipulated to be “correct and true.”

Hrebec appeared in the magistrate court as a witness for the telephone company. During the course of the trial (and we quote from respondent’s brief), “[I]t be-cante apparent to Respondent that the major issue in this action was whether or not * * * Hrebec was on business for the telephone company so as to make the telephone company responsible for his actions.” The record of the magistrate court testimony reveals the following, and nothing else, occurred:

“Mr. Farmer [attorney for the plaintiff] : Motion to add Mr. Hrebec as a party defendant.
“Mr. Clay [attorney for the telephone company] : To which we object.”

The magistrate’s transcript sent to the circuit court upon appeal recites:

“12/7/65 * * *. On this day the above cause comes on for trial * * *. After hearing Plaintiff’s evidence, the Court, over objection, on Motion of Plaintiff, grants leave to Plaintiff to amend his Petition by joining John F. Hrebec as Co-Defendant to this suit * * *. Plaintiff ordered to file his amended [sic] with the Court. John F. Hrebec, Co-Defendant appears in open court with counsel and enters his appearance; trial continued. Having heard all the evidence * * * the cause is taken under advisement.”

On December 9, 1965, the magistrate recorded a finding and judgment for plaintiff and against “the co-defendant, John F. Hrebec only” in the sum of $600. The Notice of Appeal and Recognizance filed by Hrebec in the magistrate court describe him as “an alleged co-defendant.”

A “record entry” made by the Jasper County Circuit Court January 24, 1966, states: “Now at this day, this cause domes on for trial * * *. And after héaring the statements of counsel * * * the Court finds that the defendant John F. Hrebec was not served with summons in the Magistrate Court and that .he did not enter his appearance, whereupon the Court sustains the said defendant John F. Hrebec’s motion to dismiss * *

On January 26, 1966, plaintiff filed a “Motion for Rehearing” and the following day the circuit court set aside its dismissal order and ruled “that this case be reinstated on the active docket for trial as to defendant John F. Hrebec.”

Before trial commenced in the Circuit Court without a jury on June 17, 1966, Hrebec filed a written motion objecting to the introduction of any testimony and moved for dismissal of the causev for lack of jurisdiction over his person. The motion asserted Hrebec’s magistrate court appearance was only as a witness, that he had never been served a summons or a petition or statement, that he did not enter his appearance in the cause, that he had not been represented by counsel, and the docket entry “of the Magistrate is in error.” The motion was overruled. Without objection or any contradicting evidence on behalf of plaintiff, Hrebec testified in circuit court he had never entered “any appearance in this case,” had not been represented by an attorney in magistrate court, and had never been served with a summons, petition or statement. When the circuit court overruled Hrebec’s motion for new trial or to amend and modify the $995 judgment it had entered for plaintiff, defendant appealed to this court.

Initially we are confronted with defendant’s claim the magistrate court never acquired jurisdiction of his person and, consequently, the circuit court could derive no such jurisdiction. It is admitted there was no issuance or service of summons on Hrebec when effort was made to add him as co-defendant in the magistrate court. V.A.M.S. § 517.370. This was necessary unless he appeared in open court and entered his appearance. V.A.M.S. § 517.-380. Defendant’s contention the record of the magistrate court is erroneous in stating he appeared with counsel and entered his appearance receives support from the transcript of the proceedings there and his uncontested evidence in the circuit court.

“Magistrate courts shall be courts of record” (V.A.M.S. § 517.050), and, subject to exceptions bound to every general rule, we iterate a court of record can speak only by its records which import absolute verity. The marks which outline the extent of precise application of this aphorism are drawn at various sites depending on whether the records are contested by a “collateral attack” or a “direct attack” and what species of procedure we relate to each term. Ordinarily an appeal from a judgment is in the nature of a direct attack, for “an appeal is but a continuation of the original juridiction and suit.” Herhalser v. Herhalser, Mo.App., 401 S.W.2d. 187, 193(10). Extrinsic evidence is admissible in a direct attack to contradict the record and parol evidence of an entry by inadvertence, mistake or of the falsity of a recital is acceptable. Even if the judgment be valid on its face and the record conventionally cannot be disputed by extrinsic evidence because the attack is collateral, yet if the parties admit or neglect to object to evidence showing the court’s lack of jurisdiction over the person of defendant, it then is established the judgment is as void as though so shown by the record itself, and under such circumstances it is the court’s duty to so declare as a matter of law.

If Hrebec’s elevation of the cause from the magistrate court to the circuit court be viewed an appeal as generally understood, his attack in the circdit court on the magistrate’s records and judgment could be said to be direct and make permissible and effective the extrinsic evidence proffered to refute jurisdiction over his person. However, we are confronted with the statutory injunction that when an appeal from a magistrate court is perfected, the circuit “court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection on the trial, judgment or other proceedings of the magistrate or sheriff in relation to the cause.” V.A.M.S. § 512.270.

Prior to Cudahy Packing Co. v. Chicago & N. W. Ry. Co., 287 Mo. 452, 230 S.W. 82 (decided in 1921), confusion abounded whether an appeal from a justice of the peace court per se entered appellant’s appearance in the circuit court. Cudahy noted that in 1879 what is now generally the same as V.A.M.S. § 512.270, supra, was amended to permit the circuit court ■“to hear, try and determine the same anew, without regarding any error, defect, or ■other imperfection in the original summons or the service thereof, or on the trial, judgment, or other proceedings of the justice or constable in relation to the cause.” The court in Cudahy also recognized that a 1885 amendment to what is roughly V.A. M.S. § 512.190 added the proviso “the affidavit and bond for appeal filed shall be taken and considered by the appellate court [i. e., circuit court] as an entrance of appearance.” Stating “the question in this case therefore concerns solely the meaning of the applicable statute [s] as written,” Cudahy announced the mere fact of appeal gave the circuit court jurisdiction over the person of the defendant. This ruling was thereafter followed and in Stanton v. Caplan, Mo.App., 164 S.W.2d 143, 145(4) it was said: “In view of the statute and these cases from the Supreme Court we hold that when the defendant perfected an appeal to the circuit court he expressly and unconditionally waived any defects in the summons or service before the justice, or the absence of any service at all.” (Emphasis supplied).

In 1945 (effective January 1, 1947) the legislature repealed the old justice of the peace statutes and enacted laws governing the magistrate courts. The careful reader will discern little difference between the old statute and present V.A.M.S. § 512.270. However, the “tail” added by the 1885 legislature to the previous statute comparable to V.A.M.S. § 512.190 was not included in the law when the present magistrate statutes were enacted. We could ponder, even more than we have already, as to what consequence, if any, resulted from the changes effective with the transition from justice to magistrate courts, were it not for these words from the Supreme Court in Cudahy, supra, 230 S.W. l.c. 85(2):

“The purpose of an appeal from a justice of the peace in this state is to secure a ‘trial anew.’ That is the sole purpose for which such appeal is permitted by the statute. [V.A.M.S. § 512.270]. When a defendant appeals he therefore appeals for that purpose and no other. The very lodging of the appeal in the circuit court constitutes an invocation of the appellate jurisdiction of that court; and, since the circuit court, on such an appeal, has no appellate jurisdiction except for the purpose of a trial anew, it is an invocation of that court to exercise, its jurisdiction in a trial anew. This of itself constitutes such an appearance as to waive defects in or absence of summons or services. In this state this principle is supplemented, as already pointed out, by our statutory provision * * * which expressly directs the circuit court on appeal to disregard every ‘error, defect or other imperfection in the original summons or the service thereof * * *.’ ”

Also see 6 C.J.S. Appearances § 12n, p. 41: “Taking a general appeal from an inferior court to an intermediate appellate court, which tries the cause de novo, constitutes a general appearance in the intermediate court and confers jurisdiction of the person on that court, whether the court from which the appeal was taken had acquired jurisdiction of the person or not.” To the same effect is 5 Am.Jur.2d Appearance § 34, p. 507.

In consideration of the foregoing we are constrained to rule that Hrebec’s appeal to the circuit court for a trial de novo subjected him to the jurisdiction of that court irrespective of whether his appearance in the magistrate court was made as indicated by its record.

The transcript of proceedings had in the niagistrate court recites that twenty-one days before the trial of this cause in that court the “parties file stipulation.” The context of that stipulation is unknown and does not appear in the record before us. When the case was tried in the circuit court, defendant objected to plaintiff’s testimony aS to the value of the Ford before and after the collision. Counsel said: “Let the record show that plaintiff stipulated in the trial before the Magistrate Court that the damage to his automobile was $600 * * * and that plaintiff is bound by that stipulation * * The circuit court overruled the objection when plaintiff’s attorney said “we stipulated there to a low figure, which was your figure and we are not going to do it at this time.” However, defendant’s lawyer was advised “the Court will permit you to examine [plaintiff] with reference to any prior testimony or agreement.” Defendant asked plaintiff no questions regarding the stipulation, made no objection to another witness’ testimony regarding plaintiff’s damages, and at no time undertook to offer or produce the stipulation into evidence. Defendant now complains the circuit court erred in rendering a $995 judgment contrary to plaintiff’s stipulation as to the extent of his damages.

A stipulation fairly entered into as to some fact in issue at a trial becomes a part of the record and is binding upon the parties and the court upon a subsequent trial of the same action, provided its terms do not limit it to a particular occasion, object or proceeding. Proof of the existence of a stipulation or any issue in a case cannot be bottomed on extraneous statements made by counsel while voicing an objection any more than can a case be determined on such statements printed in a brief. If an appellant desires review of an issue it is his duty to furnish a transcript containing all the récords, proceedings and evidence relating thereto, and where there is an absence of such items there is nothing for an appellate court to decide. The same applies to a trial court. An appellant cannot be heard to convict a trial court of error upon an issue which.died for complete lack of nourishment by way of exhibits, evidence or testimony.

The accident occurred near the entrance to an alleyway extending north from Seventh Street, an east-west thoroughfare. The alley is midway between and runs parallel with Pearl Avenue (the first street east of the alley) and Byers Avenue (the first street west of the alley). Both parties proceeded on the theory plaintiff’s son was a bailee of his father’s automobile and any contributory negligence on his part was not imputable to the plaintiff. Plaintiff’s original and amended petition alleged his Ford automobile was being operated west on Seventh Street and the telephone company’s Chevrolet was being driven east on said street when the Chevrolet (upon reaching the alley) “made a left turn directly in the path of plaintiff’s vehicle cauáing a collision and damage to plaintiff’s car.” While formal pleadings are not required in magistrate court, if the plaintiff pleads formally, he is bound to the same extent as if the action had originated in the circuit court (Usona Mfg. Co. v. Shubert-Christy Corporation, Mo.App., 132 S.W.2d 1101, 1103(1, 2); Frye v. Baskin, Mo.App., 231 S.W.2d 630, 634-635 [8]), and when the cause reaches the circuit court the trial there “shall be governed by the practice in such court.” V.A.M.S. § 512.310. We here note plaintiff at no time sought to amend his pleadings in any respect as made permissible under V.A.M.R. 55.54 with leave of court.

Plaintiff’s driver testified that immediately prior to the accident he had been southbound on Pearl and turned right or west onto Seventh Street. Desiring to change into the inside westbound lane the witness looked into the rear-view mirror and “when I looked back up, the Hrebec car was right in front of me * * * I realized that he was coming out of the alley * * *. Moving in reverse. South * * * it was rolling backwards.” Defendant’s motions to strike this testimony (made when it was uttered and at the close of plaintiff’s case) because it constituted a departure from the pleaded negligence and injected an “utterly inconsistent theory” of liability were overruled by the mal court We find merit in defendant’s claim the trial court erred in this respect.

It is basic that in a damage suit plaintiff will not be permitted to recover upon proof of a charge contrary to the theory alleged in his petition, even though the different theory would suffice to have shown actionable negligence had it been properly pleaded. This should especially apply when no effort was made by plaintiff to amend the petition to conform to the proof, and where, as here, plaintiff’s evidence went to disprove the exact charge of negligence averred in his pleadings. Cf., Hughes v. Kiel, Mo.App., 100 S.W.2d 48, 50(2,3). Although the judgment must be reversed because proof was allowed on an unpleaded charge of negligence, the facts here suggest that with a proper petition defendant’s alleged negligence may be made an issue for a trier of the facts. Consequently, we will not reverse the judgment outright, but the cause will be reversed and remanded for a new trial. Grissom v. Handley, Mo.App., 410 S.W.2d 681, 690-691(18); Lorraine v. E. M. Harris Building Company, Mo.App., 391 S.W.2d 939, 942(2). What has been formerly noted regarding the alleged stipulation of the parties as to damages, requires the cause be remanded for new trial as to all issues.

It is so ordered.

STONE, P. J., and HOGAN, J., concur.

      . State ex rel. and to Use of Conran v. Duncan, 333 Mo. (Banc.) 673, 63 S.W.2d 135, 139; Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142, 143; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458, 475(13); Howey v. Howey, Mo. (Banc.), 240 S.W. 450, 456; Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373, 300 S.W. 778, 781; Stumer v. Hibbing General Hospital, 242 Minn. 371, 65 N.W.2d 609, 612(1); Smiley v. Smiley, Mo.App., 207 S.W.2d 862, 867(9); Philbrick v. Parr, 47 Wash.2d 505, 288 P.2d 246, 248(4).

      . Reineman v. Larkin, 222 Mo. 156, 121 S.W. 307, 311(1); 49 C.J.S. Judgments § 408a, pp. 805-809; Freeman on Judgments, 5th. Ed., Vol. 1, § 307, pp. 610-612.

      . Restatement, Judgments § 12, comment b, pp. 70-71; Fresno County v. Roberson, Martin & Co., 124 Cal.App.2d Supp. 888, 269 P.2d 252, 254(3) ; City of Los Angeles v. Glassel, 203 Cal. 44, 49, 262 P. 1084, 1086(5-8) ; Annotation: 88 A.L.R. § Ilia, pp. 30-36 ; 32A C.J.S. Evidence § 860, p. 224.

      . Griggs v. Venerable Sister Mary Help of Christians, Mo.App., 238 S.W.2d 8, 14 — 15(9) ; Woodruff v. Tourville Quarry, Inc., Mo.App., 381 S.W.2d 14, 18(6); 49 C.J.S. Judgments § 421, p. 822 at 824; Freeman on Judgments, 5th Ed., Vol. 1, § 375a, pp. 788-789.

      . 50 Am.Jur. Stipulations § 13, p. 613; 83 C.J.S. Stipulations § 24(b), pp. 60-61; 31A C.J.S. Evidence § 381b, p. 923; Annotation: 100 A.L.R. 775, § II, pp. 776-784.

      . Landers v. Smith, Mo.App., 379 S.W.2d 884, 887(4); E. O. Robinson Lbr. Oo. v. Lowrey, Mo.App., 276 S.W.2d 636, 644 (21); In re Jackson’s Will, Mo.App., 294 S.W.2d 953(1).

      . V.A.M.S. § 512.110; Y.A.M.R. 82.12 and 82.14; Brand v. Brand, Mo., 245 S.W.2d 94, 96(4) ; Thomson v. Bast, Mo.App., 309 S.W.2d 667, 671.

      . Sherwood v. Arndt, Mo., 332 S.W.2d 891, 895; McCloud v. Saling, Mo.App., 259 S.W.2d 699, 701(1, 2); Norton v. Hines, 211 Mo.App. 438, 245 S.W. 346, 348(1-3).

      . Larkin v. Consolidated Service Car Co., Mo.App., 382 S.W.2d 453, 454-455(1); Hein v. Chicago & E. I. R. Co., Mo.App., 209 S.W.2d 578, 581-582(2); Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 686(10), affirming (Mo.App.) 51 S.W.2d 559, 568(12).


author: L. F. COTTEY, Special Judge.

text:
    Lenore LEWIS, Respondent, v. Berenice WILLIAMS, Appellant.
    No. 24549.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.

      Maurice W. Covert, Houston, E. C. Lockwood, Mountain Grove, for appellant.
    Thomas J. Stephens, Jerold L. Drake, Grant City, for respondent.
   L. F. COTTEY, Special Judge.

Fred G. Shores died intestate, unmarried, without lineal descendants. Neither his father or mother nor any brother or sister, nor any lineal descendant of either of them, survived him. Of his collateral kindred an uncle, one of his mother’s brothers, stands in the nearest degree of consanguinity. His other heirs are the descendants of a deceased brother of his father, and of two deceased brothers and a deceased sister of' his mother.

Question: How shall his estate be distributed?

Answer: His living uncle, as the sole survivor of the five persons who once bore that degree of relationship to him, identifies and establishes the class among whom apportionment must initially be calculated in aliquot parts; in this instance, on the basis of one-fifth to each. The surviving uncle takes his one-fifth share per capita; the remaining shares are taken per stirpes by the lineal descendants of the four deceased uncles and aunt. Secs. 474.010(2) (c) and 474.020, V.A.M.S.; Copenhaver v. Copenhaver, 9 Mo.App. 200, affirmed, 78 Mo. 55, 58; Aull v. Day, 133 Mo. 337, 34 S.W. 578, 579-80; Maus, Missouri Probate Law & Practice, Vol. 4, Sec. 1226, p. 421.

That being the conclusion reached by the trial court on the only issue presented, the decree is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    Eugene LETCHER, Appellant, v. COMMONWEALTH of Kentucky ex rel. Robert MATTHEWS, Attorney General, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    As Modified on Denial of Rehearing April 28, 1967.
    Ben B. Fowler, Dailey & Fowler, Frankfort, for appellant.
    Frank G. Gilliam, Lexington, for ap-pellee.
   MONTGOMERY, Judge.

Eugene Letcher appeals from a judgment ousting him from the office of member of the Nicholas County Board of Education. The trial court found that Letcher voted to employ his sister, Marie Crawford, and that he voted to pay his wife for tomatoes she sold for use in the school lunchroom. It, therefore, was concluded that Letcher had violated KRS 160.180(2) and (4). Consideration of the finding and conclusion concerning the sister’s employment as a violation of KRS 160.180(4) is sufficient.

Appellant’s fifth term as a member of the Nicholas County Board of Education started in January 1965. Prior to the merger of the Nicholas County district and the Carlisle independent district in May 1963, Marie Crawford had been employed as a cafeteria worker at the Carlisle independent district school.

The pertinent portion of the record of the board meeting concerning the employment is as follows:

(Minutes)

Carlisle, Ky., September 3, 1964

The Nicholas County Board of Education met at Carlisle, Kentucky, at 8:00 o’clock P.M., on the 3rd day of September, 1964, with the following members present:

(1) Mr. Gaunce (2) Mr. House (3) Mr. Letcher (4) Mr. Talbert (5) Mr. Sims (6) Mr. Coatney (7) Mr. Dayton

Absent: Mr. Wills, Mr. Johnson, & Mr. Craig were absent throughout the meeting and votes recorded all yea indicate the vote of the seven present.”

“It was moved by Mr. Dayton, seconded by Mr. House, to employ cafeteria workers and set salaries as recommended by the principals of the four schools of county and school lunch director.

“Carlisle School

Marie Crawford — $145.00

Edna Boyd — $130.00

Blanche Tapp — $130.00

“Votes: All Yea; Nay, none. (Absent — Wills, Johnson & Craig.”

KRS 160.180(4) provides:

"No member of a board of education shall vote regarding the appointment or employment in any capacity of any person related to him as father, mother, brother, sister, husband, wife, son, daughter, nephew, niece, aunt, uncle, son-in-law, daughter-in-law or first cousin, and. the majority vote of the remainder of the board is required in case of appointment or employment of such person.”

The purpose of this statute is “to stamp out nepotism in the schools.” Hall v. Boyd County Board of Education, 265 Ky. 500, 97 S.W.2d 38.

Appellant makes the following contentions with reference to the employment of his sister:

(1) His re-election and assumption of a new term of office made him liable only for delinquencies occurring in the new term;
(2) The trial court’s finding that appellant voted for the employment of his sister is clearly erroneous since there is no proof that he cast such a vote;
(3) Assuming that he did vote for his sister’s employment, this act does not disqualify him from office; and
(4) There is no prohibition against a school board member’s voting to pay a relative after a relative is employed.

The first contention is based on Graham v. Jewell, 204 Ky. 260, 263 S.W. 693, wherein the court held “that the action of the hoard in removing or attempting to remove Graham (county school superintendent) cannot he sustained on the charges made and evidence adduced, * * One question raised concerned delinquencies which had occurred in a prior term. In that case it was recognized that in impeachment or other proceedings for removal, where by statute a removal carries with it a disqualification to hold office in the future, a removal may be had for acts committed during a prior term of office. McLaughlin v. Shore, 152 Ky. 746, 154 S.W. 45.

In McLaughlin, it was said:

“The purpose of the statute is to exclude from office under the board persons who violate its provisions, and the object of the statute would be largely defeated if it were held that an officer who concealed his offense until after that term had expired could continue to hold office under a new election. The meaning of the statute is that persons who have violated its provisions shall not thereafter be permitted to hold office under the board.”

KRS 160.180, in its entirety, concerns the matters of eligibility and disqualification of school board members. Subsection (1) prescribes the qualifications. Subsection (1) (e) disqualifies any person who at the time of his election is directly or indirectly interested in the sale of various items for which school funds are expended. Subsection (1) (f) renders anyone ineligible for membership who “has been removed from membership on a board of education for cause.” Subsection (2), in part, condemns conduct of a board member contrary to subsection (1) (e) which occurs after election to the board. Subsection (3) specifically makes a board member ineligible for reelection who has become disqualified. Subsection (4) has been quoted heretofore.

Subsection (4) was originally embodied in Section 17, Chapter 65, Article V, Acts of 1934, which was a reorganization act of the educational system. Section 17, later Subsection (4), was entitled in the legislative act “Qualifications of Board Members.” Section 17 was substantially the same as KRS 160.180, except 'that Subsection (4) thereof was an unnumbered paragraph in the middle of Section 17. It remained so in Chapter 4, Acts of 1938, when this section was amended in a respect not pertinent here. Thus, the conclusion is justified that Subsection (4), KRS 160.180, was originally intended as a disqualification. Otherwise, it would not have been incorporated in Section 17, dealing with qualifications of board members. The division of Section 17 into subsections of KRS 160.180, when the statutes were revised, did not change the legislative intent that its violation should constitute a disqualification of the board member.

In Commonwealth ex rel., Matthews v. Coatney, Ky., 396 S.W.2d 72, two other members of the Nicholas County Board of Education, one of whom was present and voted affirmatively on the matter concerning appellant’s sister, were held to have vacated the office of board member because of violations of KRS 160.180(1) (e) and (2). It was pointed out in that case, as well as in others cited therein, that the statute was intended “ * * * to eliminate possible conflicts of interest of board members * * The salutary purpose of the statute is discussed at length in Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979. In Coatney and in Douglas, as well as in Commonwealth ex rel., Breckinridge v. Collins, Ky., 379 S.W.2d 436, it was pointed out that the court has consistently followed its strict interpretative rule of KRS 160.180.

The court is not blind to the situations which may arise as exemplified by the demonstrated conduct of the three members of the Nicholas County Board of Education. In view of the purposes of KRS 160.180, and especially of subsection 4, it cannot be doubted that the statute equally condemns a board member who is interested in making sales to the board or in obtaining employment for a sister. For the purposes of the statute, no distinction can be seen between the two.

Ouster from office and disqualification to hold such office in the future is a drastic penalty. The repeated reference in the statute to such disqualification indicates the serious purpose the Legislature had in enacting such statute. The large amount of tax money involved in financing the various public systems of education and the great responsibility of affording children the best education possible for the money available undoubtedly were two factors considered by the Legislature in providing KRS 160.180 as a safeguard against the selfish motives of the board members and their selfish use of school money in the operation of such systems. It is concluded that as to a board member for whom disqualification becomes a bar to holding such office in the future, the Legislature intended that the assumption of office under a new term does not “whitewash” any misconduct occurring in a previous term. The- cases cited compel such conclusion. Graham v. Jewell, supra, may be distinguished on the basis of the office involved; otherwise, it is overruled in so far as it may be inconsistent herewith.

The second contention, that the court’s finding that appellant voted for his sister is not supported by the proof, is untenable. The minute of the board meeting shows that appellant voted in the affirmative to employ his sister.

Likewise, there is no merit in the argument that the quoted board meeting minute merely constitutes an order setting the sister’s salary and ordering her paid. The motion made was “to employ” and “set salaries.” The reading of the minute plainly shows that it is a record of the board’s action in employing and setting salaries for the sister and other named persons. Although it may be required that such employment be recommended by a principal or superintendent, it is still the function and responsibility of the board to employ and pay.

The fact that appellant may have abstained from voting on such matters in other years is not controlling in the face of the board’s record. Also, there is no merit in the argument that appellant should not be disqualified because his conduct constituted merely an attempt to vote for a relative. The court found, based on a board record, that appellant did vote for his sister.

Appellant seeks comfort in Hall v. Boyd County Board of Education, 265 Ky. 500, 97 S.W.2d 38. It was held there, in effect, that a relative could be employed without considering the disqualifying vote of a board member. There, the question was whether the relative had been validly employed. Here, the question is whether a board member has disqualified himself. The validity of the employment of appellant’s sister is not involved, nor is the question of whether a board member is prohibited from voting to pay a relative after the relative has been employed. KRS 160.-180(4) is concerned with “appointment or employment” and is not concerned with payment.

Judgment affirmed.


author: OSBORNE, Judge.

text:
    FORD & SON PAVING CONTRACTORS, INC., Appellant, v. Golda PROFFITT et al., Appellees.
    Court of Appeals of Kentucky.
    April 21, 1967.
    Henry H. Dickinson, Richardson, Bar-rickman & Dickinson, Glasgow, Paul Carter, Abe Carter, Tompkinsville, for appellant.
    Robert C. Carter, Glasgow, for appellees.
   OSBORNE, Judge.

Appellants are road contractors. In May of 1963, they were constructing a portion of the Nobob Road in Barren County, Kentucky. They were operating several dump trucks over the road, the surface of which was white rock covered with oil. The weather apparently was warm and, as the trucks traveled over the road, the sticky oil on the loose rocks caused considerable commotion and noise from the flying rock. According to the' testimony, the road had been oiled only a few days before the hauling of the rock started and at the time was “pretty sloppy.” Appellants’ trucks were all red and there were about ten of them on the job at the time of the accident.

Appellee lived on the Nobob Road with her husband and had a row of flowers up and down a fence near the road. On the day of the accident, she had gone down to the road and was cutting weeds out of the old fence. She heard a truck coming and “raised up and was standing and looking” and, according to her, “I must have twisted my head kinda that way looking at him and something hit me on the neck. It was a rock I thought and it almost knocked me unconscious and almost knocked me down.”

After appellee was struck by the rock, she went around to the rear of the house where she met her husband. He noticed that her neck was bleeding and took her into the house, washed the blood off, and bandaged it. He testified he “fixed her neck up and after we got our chores done, I took her to Tompkinsville to the hospital.” Appellee had complications with the injury, in that scar tissue involved a nerve, the treatment of which involved considerable medical expense. She brought suit against appellants in the Barren Circuit Court and recovered judgment in the amount of $7517.14. From the judgment, this appeal is taken.

Appellants present three grounds for reversal of the judgment. 1. The court should have sustained a motion for a directed verdict because there was no probative evidence that the truck which threw the rock belonged to appellant. 2. There was no evidence that the driver of the truck was negligent in its operation at the time the rock was thrown. 3. Error in the instructions given the jury by the trial court.

The controversy surrounding the ownership of the trucks was brought about by the fact that appellant, Bishop L. Ford, testified on a pre-trial deposition taken for the purpose of discovery that he and his father were the sole owners of the trucks operating on the Nobob Road on the day in question. He further testified he had the contract for the construction of the road and there were no subcontractors or other contractors working on the road at that time. Upon the trial of the case, he testified he was not the owner of the trucks in question. He stated he had leased the trucks prior to the accident and he was mistaken as to their ownership at the time he gave his deposition. Appellant insists in his brief that the trial court should have accepted this explanation as to the ownership of the trucks and should have directed a verdict for him. We do not accept this contention. Where a party to a law suit gives conflicting testimony, the court is not bound to accept either version but is bound to submit the matter to the jury who may accept the version of the testimony it deems fit. Schaible v. Uhl, Ky., 343 S.W.2d 578.

Higgans v. Deskins, Ky., 263 S.W.2d 108, 52 A.L.R.2d 346, and Coleman v. Blackburn, Ky., 265 S.W.2d 781, cited by appellant, stand for the proposition that proof of ownership of a vehicle coupled with the evidence of employment of the person driving, authorizes a finding of agency. There is no authority for the proposition which appellant insists the court should have followed. Here the owner admitted all necessary facts in his statement on the pre-trial deposition.

The second question which appellants raise is more difficult. We have previously held in Randall v. Shelton, Ky., 293 S.W.2d 559, a case with facts very similar to this, that one standing alongside a road struck by a stone from the wheels of a truck could not recover in the absence of a showing of negligence upon the part of the driver of the truck. In that case, we said: “All that was shown was that a rock was thrown from the wheels of the truck * * * We cannot find any substantial evidence of negligence, and as will be discussed later in this opinion, the doctrine of res ipsa loquitur does not apply. See Bowling Green-Hopkinsville Bus Co. v. Edwards, 248 Ky. 684, 59 S.W.2d 584.” In the instant case ’ there is evidence of excessive speed over a roadway consisting of loose rocks covered with a sticky substance. This fact distinguishes it from the Randall case, supra.

Appellant’s husband, when asked what the speed of the truck was, testified, “Well, that truck that come through there and throwed the rock and hit her, it was driving around 60 or 65 miles an hour. It was the last truck that unloaded that evening, or I never seen nary another one pass after that.” Appellant, herself, testified that she was standing near the road with a butcher knife in her hand and had been cutting weeds out of the fence. When the truck came by, she was struck in the neck by a sharp rock approximately the size of a hen egg and when asked how fast the truck was traveling, she said: “It was at least going 60, maybe more.”

We are of the opinion that the evidence concerning the speed of the truck when considered with the condition of the surface of the road, is sufficient evidence for the jury to conclude that the truck in question was being operated in a negligent manner.

It is stated in 8 Am.Jur.2d 243, Automobiles, § 691, that:

“The negligence usually consists of excessive speed at which the motor vehicle was traveling upon a road covered with the loose gravel or stones.”

Appellant’s third contention is error in .the instruction's. We are of the opinion that they fairly and adequately presented the issues involved to the jury.

The judgment is affirmed.

All concur.


author: WALLIS DOWNING, Special Commissioner.

text:
    Mary Lillian CROUCH, Appellant, v. D. C. CAMERON and H. S. Gilmore, Appellees.
    Court of Appeals of Kentucky.
    April 28, 1967.
    Julian R. Gabbard, Owingsville, for appellant.
    A. C. Conway, J. M. Richardson, Owings-ville, for appellee Cameron.
    Lewis A. White, Mt. Sterling, for ap-pellee Gilmore.
   WALLIS DOWNING, Special Commissioner.

This appeal is from a final order dismissing a complaint for failure to state a cause of action. It is alleged in the complaint that the Judge of the Bath County Court signed an order appointing the defendants to examine the plaintiff and report their findings, and that the defendants, Dr. D. C. Cameron and Dr. S. H. Gilmore, licensed physicians practicing medicine in Kentucky, had signed a certificate stating that they had examined the plaintiff within the past three days and in their opinion she showed symptoms of mental illness, and that her condition was such that she did need further medical examination, observation, and treatment in a mental hospital. The Medical Examiner’s Certificate was filed. Whereupon the Judge of the Bath County Court signed and issued an order of commitment of plaintiff to Eastern State Hospital for a period of medical examination, observation and treatment not exceeding thirty-five days. The court order was duly executed. It is further alleged that the plaintiff remained in the institution from October 27, 1965 to November 3, 1965, and was found to be mentally competent. As a result of a habeas corpus proceeding the plaintiff was ordered released by a judgment of the Fayette Circuit Court. It is also alleged that the defendants, Dr. D. C. Cameron and Dr. H. S. Gilmore, did not •examine plaintiff.

By statute, KRS 23.045, this court establishes the terms of the circuit courts and fixes the days for holding each of the •circuit courts. The County Court of Bath County held the inquest during the time the Circuit Court was in session and this proceeding, therefore, was without its jurisdiction. KRS 202.020. Turpin’s Adm’r v. Stringer, 228 Ky. 32, 14 S.W.2d 189; Menefee v. Ends, 97 Ky. 388, 30 S.W. 881, 17 Ky.Law Rep. 280.

The plaintiff claims damages against the defendants for her confinement as a result of the failure to examine the plaintiff and their erroneous report. The defendants’ argument, in support of the dismissal of the complaint, is that the entire inquest proceeding in the Bath County Court resulting in appellant’s commitment for observation to Eastern State Hospital was void for want of jurisdiction. This court did not follow such reasoning in Duncan v. Brothers, Ky., 344 S.W.2d 398. The wrongful acts of one do not exonerate the wrongful acts of another or the wrongful acts of a joint tort-feasor. The appel-lees’ reliance on the void proceedings to obtain a dismissal of the complaint and to defeat the claim against them cannot be sustained. While the judgment confining the plaintiff was void, this does not as a matter of law entitle the defendant doctors to have the complaint against them dismissed.

The gravamen of the complaint is that the doctors did not examine the plaintiff, but reported that they did, and that in their opinion the plaintiff should be committed for observation. The examination is required by the statute before an order of commitment can be entered. The failure to examine, and the report of the doctors had a direct causal connection with the commitment. Without the certificate there would have been neither arrest nor confinement.

The opinion in the case of Beckham v. Cline, 151 Fla. 481, 10 So.2d 419, 145 A.L.R. 705, is persuasive upon this court. In that case the Florida Court said:

“The gravamen of the right of action is not that the defendants, after examination, reported a conclusion not warranted by the facts, but the right of recovery lies in the allegation that they made no examination of the plaintiff but made a false report to the court as alleged in the declaration and thereby caused her to be confined in a public insane asylum, The Florida State Hospital, when, in truth and in fact, she was not insane and when, as alleged in the declaration, if the defendant physicians had made any examination of her, they would have found that she was not insane.”

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: DAVIS, Commissioner.

text:
    TURNER ELKHORN MINING CO. et al., Appellants, v. Fred O’BRYAN, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Rehearing Denied May 26, 1967.
    Fred G. Francis, Howard, Francis & Howard, Prestonsburg, for appellants.
    C. W. Napier, Jr., Hazard, for appellees.
   DAVIS, Commissioner.

In this proceeding under the Workmen’s Compensation Act, KRS, Chapter 342, the circuit court reversed an order of the Board denying appellee O’Bryan’s motion to reopen his claim pursuant to KRS 342.125. The appellants challenge that ruling and urge that the Board's order denying the motion to reopen be reinstated.

On July 3, 1964, O’Bryan filed claim for compensation, averring that he was then totally and permanently disabled by reason of “pneumoconiosis or silicosis of the lungs.”

Appellee gave his own testimony before a referee of the Board, and presented evidence by deposition of Dr. G. N. Combs. The doctor had examined X-ray films of appellee’s lungs, and expressed his opinion, in part, in this language: ■

“The heart and great vessels appear within normal limits. There is minimal fibrosis in both lungs. There is also minimal fine nodulation scattered diffusely in both lungs. Bony thorax and diaphragm shadows appear within normal limits. Impression: The changes noted are felt to represent an early second stage pneu-moconiosis.”

In another answer, the doctor related:

“As I said, this is minimal change. In other words, this is not marked at all. It is, as stated, an early second stage pneu-moconiosis.”

When Dr. Combs was asked whether the conditions he had noted from the X-rays were sufficient to interfere with appellee’s ability to work he responded that he had made no physical examination of appellee, had never seen him at all, and that disability could not be stated from X-ray changes alone.

Dr. Combs was asked on cross-examination whether he had made a distinctive diagnosis with a view to designating the pneu-moconiosis as “anthrocosis, or anything else.” His response to that inquiry is somewhat illuminating and was:

“Pneumoconiosis covers that group of industrial lung diseases, of which anthro-cosis, silicosis, berylliosis, and so forth, belong. I did not make a specific breakdown of the exact one of these disease entities.”

No further evidence in behalf of O’Bryan was placed in the Board’s record at that time. However the employer and the Special Fund presented evidence from two physicians; these two doctors flatly testified that O’Bryan’s X-rays showed no evidence of silicosis. Dr. E. R. Gernert, a specialist in chest diseases, testified for the employer, and gave answer to one question as follows:

“Q. If a person was going to develop silicosis, Doctor, and had a work history such as I have related to you here, as he has testified to, would one be able to pinpoint the particular period of time that he had the hazardous exposure that brought about his disease?
“A. No. We know it takes, in the concentration these fellows usually work in in the coal mines, it usually takes ten years or longer, and the only way one could tell when he developed that would be to have yearly X-rays, or about that time.”

Dr. William H. Anderson, also a specialist in chest diseases, testified for the Special Fund, and after stating that he found no evidence of silicosis in O’Bryan’s lungs, gave this response to an inquiry:

“A. We are able to say that he has by means of X-ray no evidence of silicosis. It is possible that he could have silica deposits in his lungs that could be seen microscopically. But even in people who have this small amount of silicosis, it does not cause disability, so that I think that we could say with a reasonable degree of certainty that he does not have any silicosis that could cause any disability.”

With the record in this status the parties negotiated an agreed settlement award, approved by the Board on February 23, 1965, pursuant to KRS 342.265. The agreed award provided for payment of $2,500 in a lump sum to be paid entirely by the Special Fund. Payment of the award was made.

By a motion filed December 20, 1965, O’Bryan filed his request to reopen, pursuant to KRS 342.125; the motion was filed by his present counsel, not the same counsel who participated in the agreed settlement award.

In support of the motion to reopen O’Bryan filed the affidavits of Dr. W. C. Ham-bley and Dr. Nathan B. Herman. The gist of these affidavits is that X-ray examinations by these physicians led them to the definite conviction that O’Bryan has silicosis. Of particular significance is the affidavit of Dr. Hambley, which recites that the doctor had examined O’Bryan on October 27, 1964, (while the proceeding was pending, and before the agreed award) and on July 28, 1965. Pertinent language of the doctor’s affidavit is:

“I * * * found that his physical condition is worse as compared with his examination on October 27, 1964. This is based on chest X-ray which reveals that the nodulation is more permanent and definite and now has the characteristics of a well developed Second Stage Silicosis (sic). His exercise tolerance is much worse in that [in] 1964 his pulse at rest was 64 and after climbing the stairs 100 and 76 four minutes later as compared to recent examination given, his pulse resting was 100, after climbing the same flight of stairs it was 140, and four minutes later 110. This indicates that he is having increased Cardial Respiratory (sic) failure ”

Dr. Hambley gave as his opinion that O’Bryan’s condition is attributable to “his pulmonary condition of second stage silicosis.” He estimated that O’Bryan is totally and permanently disabled from all manual labor.

The supporting affidavit of Dr. Herman unequivocally states that O’Bryan now has demonstrable evidence of disabling silicosis. However, Dr. Herman had not examined the patient at any time prior to the agreed award.

The Board denied the motion to reopen, without assigning the matter for hearing, and without support of any medical proof refuting the affidavits just mentioned. The basis of the Board’s ruling is gleaned from the following excerpt of the Board’s opinion:

“Both the defendant and Special Fund have objected to the motion to reopen, on the grounds that there is no showing of change of condition, as the plaintiff is now claiming to suffer exactly the same disability from the same cause that he claimed in the original application which was settled.
“Considering the plaintiff’s motion and the supporting medical reports in the most favorable light, the Board can find absolutely no justification for even assigning this matter for hearing on the motion to reopen.”

It is apparent that the Board regarded the motion to reopen as based solely on “change of condition.” The motion specifically relies upon “mistake” in addition to “change of condition.” The Board accepted the arguments of appellants, which have been reiterated in briefs here, and which are of this tenor: Since the claimant asserted he was totally, permanently disabled from silicosis in his original application, it is obviously no change of condition for him to now make the same claim. Appellants assert that our cases stand for the proposition that any person who has silicosis is ipso facto totally, permanently disabled, hence O’Bryan was totally and permanently disabled when he settled, and is bound by the settlement. We are not able to accept that theory.

We think this case is ruled by the rationale of Messer v. Drees, Ky., 382 S.W.2d 209 and the cases therein discussed. It is patent that if, as argued by appellants, O’Bryan was totally, permanently disabled from silicosis it was a “mistake” for him to settle his claim for $2,500. Moreover, it is obvious that the Board could not have approved such a settlement if that had been the situation. KRS 342.265 requires that any agreed award be approved by the Board; this is not a perfunctory approval, but is one to be granted in the exercise of a sound discretion. Manifestly, the Board would have abused such discretion had it approved an award of $2,500 for an employee suffering total, permanent disability from silicosis. Statutory allowances in such a case would have exceeded $16,000.

We think there is no particular significance to be accorded the fact that the award of $2,500 was an agreed one; it would have been entitled to the same consideration had it been one reached by the Board on the record and independently from an agreement.

This record now supports the proposition that O’Bryan had incipient silicosis at the time of the agreed award. At that point the existence of the disease was not medically demonstrable; now, at least for the present purpose, it is. There is no suggestion that O’Bryan has had further exposure to silica particles; it becomes evident that whatever manifestations of silicosis he now has have developed since the agreed award. We think the present case is one of a “change of condition” or a “mistake,” or both, within the precepts enunciated in Messer v. Drees, supra, and the cases upon which it is based.

It is to be borne in mind that the circuit court’s judgment does not make an award to O’Bryan; it merely directs the Board to reopen the case for further inquiry. It is our view that the circuit court’s judgment properly recognizes the fundamental concept of the Workmen’s Compensation Act, stated succinctly in Mes-ser v. Drees, supra:

“The important question is whether the man got the relief to which the law entitled him, based upon the truth as we are now able to ascertain it.” Id., 382 S. W.2d at 213.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, OSBORNE, PALMORE, and STEINÉELD, JJ., concur.


author: WILLIAMS, Chief Justice. '

text:
    Frances Wickliffe JOHNSON et al., Appellants, v. CITIZENS FIDELITY BANK & TRUST CO., Committee for Laura L. Reynolds, now deceased et al., Appellees.
    Court of Appeals of Kentucky.
    March 10, 1967.
    As Modified May 12, 1967.
    Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellant Frances Wickliffe Johnson.
    Joseph H. McKinley, McKinley & Howard, Owensboro, for appellant Mary Lee Nicholas.

      Frank Gofton Ware, Vest & Ware, Cov-ington, for appellants Margaret Lester Motch and Wickliffe Jones.
    William J. Baird, Baird & Hays, Pike-ville, for appellants Jeanette Elder and Dorothy Ann Neeley.
    C. Terry Earle, Greenville, for appellee Citizens Fidelity Bank & Trust Co., Committee for Laura L. Reynolds, deceased.
    W. D. Bratcher, Greenville, for appellees Citizens Fidelity Bank & Trust Co., administrator for estate of Laura L. Reynolds, and others.
    Sam T. Jarvis, Jarvis, Cornette & Pay-ton, Greenville, for appellees John T. Reynolds III and others.
   WILLIAMS, Chief Justice. '

This declaratory judgment action was filed by Citizens Fidelity Bank & Trust Company, Committee for Laura L. Reynolds, deceased, seeking a construction of the last will and testament of John T. Reynolds. From a judgment of the Muh-lenberg Circuit Court construing the will this appeal is taken.

There is no dispute between the parties concerning the facts. John T. Reynolds died testate without issue October 4, 1933. His will was duly probated on October 30, 1933. His wife Laura was of unsound mind and a committee was appointed. Subsequently Citizens Fidelity Bank & Trust Company succeeded to the position of committee and was so acting upon the death of Laura on July 27, 1965.

Laura executed a will on October 10, 1931, in which she left everything she possessed to her husband. That will was probated but the bequest lapsed, since her husband predeceased her without issue. Potter-Matlock Trust Co. v. Myers, Ky., 239 S.W.2d 949 (1951). Her estate consists entirely of the funds held by the bank as committee.

When John T. Reynolds died he was survived not only by his widow but also by a bachelor brother, W. H. Reynolds (who died in 1947), a sister, Mollie Wick-liffe (who died in 1953), and ten nieces and nephews, some of whom are still living and are appellees herein. Another group of appellees represents the heirs-at-law of Laura. Appellants are children of nieces and nephews who died after John but before Laura.

John T. Reynolds’ will provides as follows:

“WILL OF JNO. T. REYNOLDS
"I, Jno. T. Reynolds, of Greenville, Muhlenberg County, Kentucky, being of sound mind and disposing memory do make, publish and declare this to be my Last Will and Testament, hereby declaring null and void any and all Wills by me at any time heretofore made.
“1st. I direct that all my just debts and funeral expenses be first paid.
“2nd. I will and bequeath to my beloved wife, Laura L. Reynolds, all the property, real, personal and mixed, which I may own, or to which I may be entitled at my death, wheresoever situated, to be hers absolutely and in fee simple, subject however to the provisions of Section 3 hereof.
“3rd. If my said wife shall die seized and possessed of any property devised to her by this Will or which has been purchased with the proceeds of any property devised to her herein, then I direct that she shall by Will devise one third thereof to such relatives of hers as she may select and the other two thirds thereof, one fourth to my Brother, W. H. Reynolds if living, and the remainder to such Nieces and Nephews of mine as may then be living, share and share alike, but the provisions of this section shall in no wise abridge or circumscribe the right to sell, dispose of, handle and use and enjoy as she may see fit, any property devised to her herein and shall only become effective in the event she shall die the owner of any property herein devised to her or purchased with the proceeds of any property herein devised.
“4th. I hereby create, nominate and appoint my said Wife, Laura L. Reynolds, to be Executrix of this my Last Will and Testament, and direct that no bond be required of her as such. I further direct that no inventory of my estate be made or taken in so far as the same may be lawfully omitted.
“In Witness Whereof, I have hereunto set my hand at Greenville, Kentucky, this 15th day of January, 1931.”

Several questions are raised on this appeal but it will be unnecessary to consider each of them in view of our conclusion as to the proper effect of the will. The circuit court ruled that one-third of John T. Reynolds’ estate remaining at Laura’s death was to be equally divided among Laura’s heirs-at-law, and two-thirds was to be paid to the living nieces and nephews equally. Any proceeds which had been realized from John T. Reynolds’ property went to Laura’s heirs. Administration costs and reasonable attorney fees were allowed.

It will be noted the second clause of John T. Reynolds’ will gives Laura a fee simple absolute subject only to the provisions of the third clause. Clause 3 gives Laura an unlimited power of disposal and directs the distribution by her exercise of power of appointment in her will of any remaining property or property purchased with proceeds of any devised property from John’s estate. Laura, obviously, did not write a will exercising her power of appointment.

In theory the circuit court has construed John Reynolds’ will as giving Laura a life estate with unlimited power of disposal in accordance with Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1 (1948). That case reiterated the “Polar Star” rule to be applied in the construction of written documents, especially deeds and wills. The opinion discusses how prior cases had deviated from the “Polar Star” rule and applied what is called the “Biting” rule.

“ * * * Notwithstanding that super governing rule this court, and perhaps a few others, have maimed it and have taken a large bite out of it by adjudging that when the first taker of conveyed property under the writing submitted for construction, is initially conveyed a fee title it is then incompetent and invalid for the maker to thereafter modify, qualify or reduce the apparent fee title of the first taker so as to reduce it to a life estate and that any gift over of any remnant after the death of the first taker is null and void. The only reason given for that departure from the Polar Star rule is that it is against public policy for the maker of the conveyance to cut down, or otherwise modify, or qualify the first taker’s title from an apparent fee to a lesser estate. That rule which we conclude is an arbitrarily established one, as will hereinafter be pointed out, will be referred to as the ‘Biting’ rule.”

After pointing out why the “Biting” rule should no longer be adhered to, the court said:

“We have concluded that all of our former opinions recognizing and applying the ‘Biting’ rule should be and they are now expressly overruled, but that this opinion shall have only a prospective effect and not apply to or affect any vested rights acquired under that rule while it was in force and effect, all of which rights are expressly preserved and upheld.”

Since Hanks, this court has held that when a testator died before April 23, 1948 (the date of the Hanks opinion), rights which had vested under the “Biting” rule would be preserved. DeCourley v. Tucker, Ky., 383 S.W.2d 337 (1964); Chilton v. Meeks, Ky., 288 S.W.2d 350 (1956); Stewart v. Morris, 313 Ky. 424, 231 S.W.2d 70 (1950). The rule was that, where property is devised to one absolutely with unlimited power of disposition, and by a subsequent provision of the will the testator undertakes to devise whatever may be left at the first taker’s death, the limitation over is void and the first taker acquires a fee simple title. DeCourley v. Tucker, supra. Due to the fact that John T. Reynolds died in 1933, which was prior to the ^pinion in the Hanks case, his will should have been interpreted under the “Biting” rule. Under such interpretation Laura’s heirs would have been entitled to the entire estate. However, inasmuch as Laura’s heirs prayed in the alternative for the relief granted in circuit court, and failed to perfect an appeal or cross-appeal on that judgment, it must stand.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Vernon O. SAUNDERS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.
    Rehearing Denied May 26, 1967.
    H. C. Smith, Dept, of Highways, Frankfort, M. T. Quinton, Jr., Dept, of Highways, Flemingsburg, for appellant.
    Paul C. Hobbs, Ashland, for appellee.
   DAVIS, Commissioner.

The Department of Highways appeals from a judgment awarding Vernon O. Saunders $35,000 in this condemnation proceeding. The Department presents two grounds upon which it seeks reversal: (1) improper remarks by the trial judge in reprimanding the Department’s counsel, and (2) excessiveness of the verdict.

The taking involved consists of 14.2 acres from a tract originally containing 66.79 acres. The land is situated near the west city limit of Ashland and fronts along existing U. S. Highway 23 a distance of about 2,300 feet. Along most of its frontage on U. S. 23 the Saunders property is substantially higher in elevation than the roadway. The only practicable access from the tract to U. S. 23 is by way of an existing road called River Hill Drive, a blacktop drive which had been surfaced by Boyd County in 1962. The boundary of the taken land abuts hard upon the blacktop road. The testimony as well as photographs in the record depict the property as undeveloped and irregular in contour. We shall defer further description of the property to that portion of the opinion dealing with the question of whether the verdict is excessive.

During the cross examination of appellee, he testified that he had not talked to the three persons he presented as appraisal witnesses. Appraisal witness Montague testified for appellee and stated that he had talked with appellee, although he explained that the conversation had not pertained to the values which the witness would fix. During the cross examination of witness Montague the following colloquy developed:

“Q6. If the evidence introduced in this case would tend to show Mr. Saunders testified he had not talked to any of the witnesses then you say Mr. Saunders was mistaken ?
A. Well, probably he talked to me a few minutes when he was showing me where his property line was.
Q7. Then Mr. Saunders was mistaken ?
A. Apparently he was.
THE COURT: I want to admonish the jury it is unethical for the attorney to be saying that Mr. So and So (sic) is mistaken, that is for the jury, you will hear what the witnesses say, it is perfectly all right for him to ask about the facts but when he says someone was mistaken or aren’t telling the truth that is up to you to decide that and you will disregard that and I want to admonish the attorney not to ask that kind of question because it is unethical and improper.”

The record does not reflect any objection by appellant’s counsel at the time the court gave the quoted admonition; neither is there any showing that any remedial action was requested of the trial judge at any time during the course of the trial. Appellant filed motion and grounds for a new trial in which were listed four separate grounds. The only ground which might remotely be deemed to relate to the incident just mentioned is the first one, couched in this language:

“1. Errors of law occurring at the trial and objected to by the plaintiff were of such nature as to warrant the declaration of a new trial.”

Since appellant had made no objection to the court’s remarks, it is apparent that the ground just quoted did not specify that incident as a basis for a new trial. Since the alleged error was not called to the court’s attention, it is not available for appellate review. Cf. Com., Dept. of Highways v. Williams, Ky., 317 S.W.2d 482. In passing we observe that counsel’s question was appropriate and it was improper for the court to characterize the attorney’s questioning as “unethical,” although we are not persuaded that the remarks of the judge were so prejudicial as to constitute reversible error.

As to the matter of excessiveness of the verdict, it is noted that the jury found the before value of the property as $48,000 and its after value as $13,000. These figures were within the range of testimony presented by qualified appraisal witnesses. The witnesses gave substantial reasons for their opinions of the values, before and after the taking. All of the valuation witnesses agreed that the highest and best use of the property before and after the taking is for building sites. There was evidence reflecting that the property is located favorably near the industrial complex in the Ashland area, and that there exists a scarcity of available building sites in the vicinity. The majority of the court is of the view that the jury’s verdict is not so excessive as to appear to have been given under the influence of passion or prejudice or in disregard of the evidence or instructions of the court.

The judgment is affirmed.

MONTGOMERY, STEWART and WILLIAMS, JJ., dissenting.

MONTGOMERY, Judge

(dissenting).

When a jury awards $35,000 for 14.2 acres of rough, unimproved knob land, I blush quickly. If there ever was a case where the first blush rule applies this is it. Commonwealth, Dept. of Highways v. Holbrook, Ky., 390 S.W.2d 897.

The claim that it is desirable property to be subdivided for residence purposes is not justified. No subdivision plan has been suggested. Part of the property is located next to a railroad switching yard, which does not enhance the desirability for residence purposes.

The majority opinion on its face shows that the verdict is excessive. Before the taking, the entire tract of 66.79 acres was valued at $48,000. After taking 14.2 acres and allowing $35,000 therefor, the remaining 52.59 acres are valued at only $13,000, although it is the same character of property and unchanged. Under Commonwealth, Dept, of Highways v. George, Ky., 387 S.W.2d 580, this is excessive. It is not enough that the verdict falls within the range of testimony. See Commonwealth, Dept, of Highways v. Gearhart, Ky., 383 S.W.2d 922.

For these reasons I cannot stand by without protest when the taxpayers’ money is so taken. I therefore dissent.

STEWART and WILLIAMS, JJ., join in this dissent.