author: CROSS, Judge.

text:
    William E. MILLER, Appellant, v. KAMO ELECTRIC COOPERATIVE, INC., Respondent. Earl C. MILLER and wife, Stella A. Miller, Appellants, v. KAMO ELECTRIC COOPERATIVE, INC., Respondent.
    Nos. 23279, 23280.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    Rehearing Denied Feb. 12, 1962.
    See 351 S.W.2d 960.

      George T. Sweitzer, Jr., Harrisonville, Gayles R. Pine, Pine & Welling, Warrens-burg, for appellants.
    Jack L. Rorschach, Vinita, Okl., John C. Milholland, A. J. Anderson, Harrison-ville, for respondent.
   CROSS, Judge.

This appeal includes two cases which were consolidated by the circuit court and tried together. Plaintiffs-appellants are Missouri landowners. Defendant-respondent is an Oklahoma cooperative corporation engaged in the transmission and distribution of electric power. Plaintiffs sue upon written contracts granting defendant transmission line easements across their respective properties, claiming damages to their real estate. Plaintiffs appeal from directed verdicts and judgments entered in favor of defendant.

Plaintiffs’ petitions allege that defendant purchased and plaintiffs sold transmission line easements across and over their real estate; that defendant constructed an electric power transmission line over and along the easements granted; that under the terms of the easement contracts, defendant agreed to pay plaintiffs-grantors, in addition to the recited consideration for the easements, damages to the real estate arising out of the initial construction of the line; that defendant in constructing the line caused damage to plaintiffs’ real estate; and, that defendant upon demand has refused to pay said damages.

At the trial plaintiffs introduced copies of the easement contracts and some photographs taken on the farms and undertook to present testimony to show that defendant damaged the lands by cutting standing timber from them. Defendant objected to that line of testimony in the following language: “We object to that as not a part of the issues in this case; that was provided for in the easement”. The court ruled: “I am going to sustain the objection as to tree damage”. Plaintiffs then made a formal and lengthy offer to prove (among other things) that defendant cut timber from their farms and to show the extent, nature and value of the timber cut. The offer was refused by the court. Plaintiffs then, “in view of the court’s ruling”, declined to offer further proof. Whereupon, the court entered the judgments in favor of defendant.

This appeal is prosecuted by plaintiffs essentially on the complaint that the trial court erred in refusing to permit them to continue in their presentation of evidence that defendant had cut timber from their lands, as the basis of their demands under the contracts for payment of actual damages to their real estate. Our disposition of the complaint turns on the determination of a single basic question — whether, under the terms of the easement contracts, defendant is liable to plaintiffs for actual damages caused by cutting timber from their real estate.

Thus, the contracts are before this court to be read for their meaning. Plaintiffs, and defendant as well, urge that the instruments are clear and contain no ambiguity. Plaintiffs insist that the contracts granted defendant only the right and privilege to do certain future acts — to enter upon the lands, to select a location and there build a transmission line; that the contracts obligated defendant to pay plaintiffs damages to their real estate caused by and determinable only after the performance of those acts. Defendant argues that in making the contracts all future damages had been foreseen by the parties, were negotiated upon, and compensated by the payment of the named contract consideration.

Three easement contracts appear in evidence. Two of them were executed by plaintiff William E. Miller with reference to two separate tracts owned by him. The third contract was executed by plaintiffs Earl C. Miller and wife. Each of the contracts recites two separate items of consideration for the initial grant of easement rights: (1) a nominal sum of $20, paid in hand, and (2) contingently, at a future date, an additional amount “per pole” and “per anchor”. The documents are identical except as to their designation of grantors, land descriptions and the “pole” and “anchor” consideration, and contain pertinent provisions as follows:

“Transmission Line Easement
“The Grantor — (named)—for and in consideration of the sum of Twenty Dollars ($20.00) — hereby grants, bargains,’ sells and conveys to said Kamo Electric Cooperative, Incorporated, * * * the perpetual easement and right to enter upon the lands of Grantor * * * (described) * * * and to erect, operate, survey, maintain, repair, rebuild and patrol on or over said lands * * * one or more electric power transmission lines and appurtenant signal lines, telephone and telegraph wires, poles, towers, wires, cables, anchors, guy wires, and appliances necessary in connection therewith * * * together with the right of ingress and egress to, from and over said lands for doing anything necessary or useful to the enjoyment of the easement herein granted. There is also granted to the Cooperative the perpetual right to cut all trees and to remove all other obstacles of such height that could fall within a distance of 5 feet .of the outer conductor of the transmission line and facilities of the Cooperative, and to clear all brush, timber, structures, improvements, and fire hazards, located within fifty (50) feet of the center line of said electric power transmission lines, provided, however, .the words “fire hazard” shall not be interpreted to include growing crops and fences.
“To have and to hold said easement and rights unto the Cooperative and its lessees, licensees, successors and assigns, forever.
“The Cooperative, in addition to the consideration hereinbefore stated, agrees to pay to Grantor for the privileges herein granted, when the above line or system has been constructed on the above described property, as follows: $-- per pole; $- per anchor.
“In addition to the recited consideration the Cooperative agrees to pay to the Grantor the actual damages to Grantor’s real property, including damage to growing crops, arising out of initial construction of said lines; and to pay thereafter actual damages to growing crops occasioned by operation and maintenance of said lines.
“The Cooperative further agrees that trees that are felled shall be cut in commercial wood lengths, but not less than eight (8) feet, and left on the edge of but off the area authorized to be cleared.”

In the two contracts signed by William E. Miller, the “additional” compensation was specified at “$10.00 per pole; $10.00 per anchor”. The contract signed by Earl C. Miller and wife stated the “additional” compensation in a lump sum. as follows: “$480.00 for all poles placed on the above described property. No anchors”.

This court joins the parties in their expressed views that the easement agreements are not ambiguous. We think the meaning of those contracts is apparent from the language employed. In our interpretation, the words and phrases of the documents will be taken in their ordinary sense. The mutual intentions of the parties will be ascertained from the language of the contracts and the facts and circumstances attending their making. As stated in Donovan v. Boeck, Mo.Sup., 217 Mo. 70, 116 S. W. 543, 547: “But one main rule is common to the construction of all contracts, and to it all others must give way. That rule is to get at the meaning of the contract and enforce its true intendment as judicially gathered from all its four corners. To this end it is elementary that the subject-matter of the contract, the relations of the parties to that subject-matter, and the ordinary meaning of the language used in the contract, pass in review”.

Before analyzing these contracts, we direct attention to a Missouri Supreme Court decision which stands as controlling authority on the present issue—Fulkerson et ux. v. Great Lakes Pipe Line Co., 335 Mo. 1058, 75 S.W.2d 844, 845. In that case the court determined the meaning and effect of a contract granting a pipe line easement over the plaintiff’s farm. Pertinent portions of that easement instrument are as follows:

“For and in consideration of the sum of One Dollar ($1.00) to us in hand paid by Great Lakes Pipe Line Company, a corporation, of Ponca City, Oklahoma, the receipt of which is hereby acknowledged, H. C. Fulkerson and Ida L. Fulkerson, his wife, does hereby grant to Great Lakes Pipe Line Company, its successors or assigns, the right to lay, maintain, operate, re-lay and remove at any time a pipe line or pipe lines for the transportation of oil or oil products, gas and water, and if necessary, to erect, maintain, operate and remove telegraph and telephone lines, with right of ingress and egress to and from the same, on, over and through certain lands [described] * *.
4 ⅜ ⅜ ⅜ ⅜ ⅜
“All damages to crops, surfaces, fences, and premises for and because of the laying of each line of pipe and each telegraph and telephone line shall be paid for as soon as said line or lines are completed and shall include maintenance damages, if' any. In addition to this there shall be paid on the laying of the first line of pipe an additional compensation at the rate of 50 cents per rod * * * or fraction thereof of land on these premises, across which said line is laid. * * * ”

Of the Fulkerson contract the court said:

“The easement, ‘the right to lay, maintain, operate, re-lay and remove at any time a pipe line or pipe lines,’ is expressly granted in the first paragraph of the contract. True, the consideration there named is nominal, $1. In the fourth paragraph a further consideration of 50 cents per rod of line laid is provided. That is an actual consideration and is to be paid regardless of whether damage results or not. Thus by the terms of the contract the grant of the easement if used is compensated apart from any damage that may result to the land and its appurtenances from acts done in the exercise of the right granted. But the parties contemplated that in doing the things which the contract granted defendant the right to do the latter might damage plaintiffs, and they provided that plaintiffs should be compensated for such damage. The damage there provided to be paid is not for or because of the granting or the existence of the easement or the right to go upon the land and lay, maintain, operate, re-lay and remove pipe lines, but for and because of the laying of each line of pipe”.

Having examined the contracts in these cases in the light of the Fulkerson opinion and under applied judicial rules, we reach the conclusions herein expressed. The first paragraph is an express grant of an “easement”, but not a specific right-of-way. It grants certain privileges defined as the right (1) to enter upon the lands; (2) to erect transmission lines; (3) to ingress and egress from the lands; (4) to remove certain objects, including trees and timber, from the way of the transmission lines. Although not expressed, there is a clearly implied grant of the right to select a location for a 100 foot way upon which to build transmission lines — limited only by the boundaries of the land (and, perhaps, the rule of reason). We consider those rights as in the nature of a license or an enabling franchise, conferring upon the corporation the legal privilege to perform physical acts on the real estate in the future. Those privileges and rights were purchased from plaintiffs for the consideration of $20 per farm, paid in hand, and a promise to pay an additional sum amounting to $10 per pole and anchor — in the future— as provided by paragraph two. That consideration, in our opinion, paid for nothing other than the enumerated inchoate privileges. As said in the Fulkerson case, “that is an actual consideration and is to be paid regardless of whether damage results or not. Thus by the terms of the contract the grant of the easement if used is compensated apart from any damage that may result to the land and appurtenances from acts done in the exercise of the right granted;”.

Plaintiffs’ entitlement to compensation for “actual damages to their real property” is provided by paragraph four. We think the language there used is susceptible of no other meaning than that defendant covenants to pay for any actual damage it does to the realty by its acts done in constructing the transmission line. Again, as said in Fulkerson, “But the parties contemplated that in doing the things which the contract granted defendant the right to do the latter might damage plaintiffs, and they provided that plaintiffs should be compensated for such damage. The damage there provided t.o be paid is not for or because of the granting or the existence of the easement or the riffht to go upon the land and lay * * pipe lines, but for and because of the laying of each line of pipe”.

Aside from the language of the contract and the compulsive effect of the Fulkerson case, the facts and circumstances of the transactions are strongly persuasive that thé parties did not intend or agree that all future damages were compensated in full by the payment of the nominal sum of $20 and $10 per pole and anchor.

Where a contract is fairly susceptible of two constructions, one of which makes it fair, customary, and such as prudent men would naturally make, while the other makes it inequitable, unusual, or such as reasonable men would not be likely to enter into, the interpretation which makes it a rational and probable agreement must be preferred to that which makes it an unusual, unfair or improbable contract. Big Muddy Coal & Iron Co. v. St. Louis-Carterville Coal Co., Mo.App., 176 Mo.App. 407, 158 S.W. 420.

We think it can be reasonably assumed that plaintiffs intended to exact and be paid adequate compensation for damages inflicted upon their lands, as was their legal right. When they granted the easements and were paid the sum of $20, they knew nothing of the nature and extent of the damages they were to suffer at some future time — except the likelihood of occurrence. Defendant had not yet selected the location of its transmission line. The entire areas of plaintiffs’ farms were subjected to the easements. Defendant had unlimited choice, within the boundaries of those farms, of a way on which to construct its transmission lines. The contracts permitted defendant to enter each farm at any place and to locate and build its line along any route that it might select. Obviously, the potential of inflicting damages could vary in great degree, depending primarily upon the particular location chosen by defendant for its purposes. Within the boundaries of those farms are located houses, barns, outbuildings, fences, trees, growing crops, and the other usual farm appurtenances. It is patent that the physical location of a site for defendant’s transmission line would be a factor of great significance in the causation of damages to plaintiffs. Other considerations — such as the total length of the way selected, the time and manner of construction, weather conditions and the occurrence of casualty — were unknown to and unforeseeable by the parties at the time they made the contracts. Taking all of these matters into consideration, we believe it was not possible that the parties could have understanding^ foreseen, negotiated and settled defendant’s liability for future damages to plaintiffs’ lands. There could have been no meeting of the minds on that subject. The contract interpretation that defendant pleads for is irrational and improbable. Prudent and reasonable men are not likely to have entered into a contract on those terms.

Defendant presents an additional point. It is urged that the trial court’s refusal of plaintiffs’ offer of proof was a correct ruling and did not constitute error. Defendant argues that since the offer went beyond the scope of the issues (the cutting of timber and resulting damages) and included other subject matter which was incompetent and immaterial, the court was not required to sort out and rule upon the material and proper evidence, but was at liberty to reject the entire offer. Hence, defendant suggests, there is no basis of error to support the appeal. The point is without merit. It was not necessary for plaintiffs to make the offer of proof, after the trial court had sustained defendant’s objection to the introduction of further evidence relative to the cutting of timber, in order to preserve their complaint of error. "Further, an offer of proof is not necessary, in order to preserve an objection to a ruling of exclusion for review, where the offer of proof would be a useless gesture by virtue of the attitude of the trial court, or where the court has ruled broadly that evidence of a particular class or type, or evidence in support of the theory or fact which the party is seeking to establish, is inadmissible”. 4 C.J.S. Appeal and Error § 291, pp. 900-901. Also, see Murphy v. Reed, Mo.App., 193 S.W.2d 947.

This decision establishes plaintiffs’ legal entitlement, under the contracts, to be compensated for any actual damages to their real property, including damage to growing crops, arising out of the construction of defendant’s transmission line. It is plaintiffs’ further right to have a trial at which they may introduce appropriate evidence of such damages and submit that issue to a jury. We rule that the issue of plaintiffs’ damages to their real estate shall include any damages occasioned by the cutting of trees or timber, but is not so limited. See Fulkerson et ux. v. Great Lakes Pipe Line Company, supra.

Accordingly, the judgments are reversed and the cases remanded for a new trial.

All concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Wade SHIVERDECKER, Appellant, v. ZONING BOARD OF ADJUSTMENT OF FULTON, Missouri, Respondent.
    No. 23352.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      John M. Cave, T. E. Lauer, Fulton, Don C. Carter, Sturgeon, for appellant.
    Clyde M. Burch, Fulton, for respondent.
   MAUGHMER, Commissioner.

This is an appeal from the judgment of the Circuit . Court of Callaway County, affirming a decision of the Board of Zoning-Adjustment for the City of Fulton, Missouri.

The property involved is a lot located at 404 N.E. 8th Street in Fulton. This lot has a frontage of 50 feet, a depth of 75 feet and contains 3,750 square feet. Although the record here includes neither the zoning ordinance nor the date of its enactment, it is clearly conceded and admitted by both parties that at all times here in question, this property was in an area zoned for one-family dwellings and requiring a minimum area of 5,000 square feet.

Chapter 89, V.A.M.S., Zoning and Planning — Municipalities in Counties of 10,000 is applicable here. Section 89.090, subd. 1 (3) Board of adjustment — powers—authorizes the Board — “In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done”.

More than thirty years ago this tract was the “back yard” of a lot 75 feet by 117.5 feet owned by one Lester Sims and upon which a house had been erected. Thereafter Lester Sims died and in May, 1959, his son conveyed the 50 foot strip to Mrs. Suzie Williamson, who shortly thereafter sold it to appellant Wade Shiverdeckcr, a building contractor.

On September 10, 1959, Mr. Shiverdecker applied for a building permit authorizing him to construct a one-family dwelling thereon. In his application and apparently in good faith, he described and represented the lot as being 75 feet by 117.5 feet in size. Responsive to this application, Paul S. Worsham, City Building Inspector, issued the permit and appellant began construction. Mr. Worsham soon after issuing the permit went onto the premises, measured the lot and determined its size was only 75 feet by 50 feet. He so advised appellant, withdrew the permit, requested stoppage of the construction and denied appellant’s request for a variance waiving the 5,000 square foot area minimum as required under the ordinance. Mr. Shiverdecker declared that he had already expended the sum of $1,830.50 on this project, including $800 for the lot; abstract, $62.50; lumber, $521; concrete blocks, $105; cost of setting blocks, $142; building permit, $5; labor, $120, and concrete footings, $75.

Appellant appealed from the decision of the Building Inspector to the Board of Zoning Adjustment. A hearing was held and the request for the variance was denied. We set forth the exact findings and ruling of the Board:

“The Zoning Board of Adjustment rules in this case that the requested variance shall be denied. After hearing all of the evidence, it is the opinion of the Board that any hardship or practical difficulty existing in this case is self-created by the owner or his predecessors in title and that the granting of a variance would be contrary to the spirit and general purpose of the City Zoning Ordinance.
“It is the opinion of the Board that the granting of a variance in this case would amount to a legislative repeal of the ordinance requiring a minimum square footage for residential lots, which the Board finds is in excess of its discretionary powers. In the exercise of its administrative discretion, the Board rules and determines that the appeal and request for a variance be and the same is hereby denied”.

By certiorari the matter reached the Circuit Court. That court affirmed the order of the Board and entered judgment accordingly.

On appeal three points are presented: First. It was error to affirm the Board’s finding that “Any hardship or practical difficulty * * * is self-created by the owner or his predecessors” and such finding is not supported by the evidence or by law. Second. The finding that “The granting of a variance would be contrary to the spirit and general purpose of the * * * ordinance” is not supported by the evidence or by law. Third. The Board’s finding that “The granting of a variance * * * is in excess of its discretionary powers” is not supported by the evidence or by law.

We are here required to review the decision of an administrative tribunal. Many decisions discuss the scope of such review and in Carlyle-Lowell, Inc. v. Ennis et al., Mo.App., 330 S.W.2d 164, 168, this court summarized such scope in this language:

“Those decisions hold that the reviewing court may not substitute its own judgment on the evidence for that of the administrative tribunal. But it is authorized to decide whether such tribunal could have reasonably made its findings and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.”

It seems to us that the written findings of the Board deny appellant’s appeal upon four grounds: 1. Any “hardship or practical difficulty” was created by the owner or his predecessors in title. Until May, 1959 (long after the effective date of the Zoning Ordinance), this tract was part of a lot containing more than 5,000 square feet. It would seem, therefore, that there was evidence that the situation was self-created. 2. “Granting of a variance would be contrary to the spirit and general purpose of the City Zoning Ordinance”. 3. “Granting of a variance in this case would amount to a legislative repeal of the ordinance requiring a minimum square footage for residential lots, which the Board finds is in excess of its discretionary powers”. We believe it is unnecessary in this case to explore and discuss the ramifications of the laws and precedents respecting these grounds numbered 2 and 3. 4. “In the exercise of its administrative discretion, the Board rules and determines that the appeal and request for a variance be and the same is hereby denied”. Although the Board m holdings numbered 2 and 3 questioned and possibly even denied its authority to exercise discretion, it nevertheless went ahead in No. 4 and in the exercise of such discretion, denied the variance sought.

Neither this court nor the Circttit Court may try the matter de novo or substitute our judgment for that of the administrative tribunal. If there was substantial credible evidence to support the finding and if .the result reached could reasonably have been reached, we are without authority to disturb the finding unless it was clearly contrary to the overwhelming weight of the evidence. As stated by Yokley Zoning Law and Practice, 2d Ed., Vol. 1, Sec. 142, p. 350:

“In determining whether to authorize a variance from the terms of the zoning ordinance because of special conditions making enforcement of the ordinance inequitable, the board of appeals is vested with a wide discretion and the courts will not interfere with that discretion unless it is abused”.

Clearly appellant’s lot contains only three-fourths of the minimum area required by the ordinance. It was definitely established that the appellant and his predecessor in title (the only persons who ever owned this particular lot) first bought it in 1959, long after the ordinance became effective. We must and do conclude that there was evidence from which the Board could reasonably reach its findings which we have designated 1 and 4. Specifically, appellant’s difficulty or hardship was self-imposed and one of the basic functions of the Zoning Board is to determine or “exercise its discretion” as to whether or not a variance should be granted in such a case where clearly its granting would violate the letter if not the spirit of the ordinance.

We have read the New York, Michigan and California cases cited by appellant and are not therefrom persuaded otherwise.

The judgment of the Circuit Court affirming the order of the Board of Zoning Adjustment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


text:
    Norma J. BERNSTEIN, Appellant, v. Jehudah S. BERNSTEIN, Respondent.
    No. 23377.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      Koenigsdorf, Kaplan, Kraft & Stoup, Chester B. Kaplan, Kansas City, for appellant.
    No appearance, for respondent.
   MAUGHMER, Commissioner.

On April 8, 1958, plaintiff Norma Bernstein petitioned the Circuit Court of Jackson County, Missouri, to set aside the divorce decree which she had secured from her husband Jehudah S. Bernstein in that court on September 10, 1952. It is her contention that she was caused to procure the divorce by the fraud and coercion of her husband. Service on defendant was by registered mail. He appeared specially and filed motion to quash, which the trial court first sustained and then overruled. Defendant took no part in the further proceedings either in this court or in the Circuit Court. The trial court, after hearing plaintiff’s evidence which consisted solely of her own testimony, found the issues against plaintiff and entered judgment accordingly.

This being a proceeding in equity, we review the case de novo upon both the law and the evidence. We determine on the whole record what relief, if any, should be granted. McCarty v. McCarty, Mo., 300 S.W.2d 394, 399; Picadura v. Humphrey, Mo., 335 S.W.2d 6, 12.

The transcript does not reveal the date on which these parties were married. However, on September 10, 1952, plaintiff, having brought the suit, was granted a decree of absolute divorce from defendant and was awarded custody of their minor daughter Tamar Bernstein. Service by publication only was had on defendant. The decree included no judgment for alimony or child support, nor had Mrs. Bernstein requested the allowance of either. It -should here be noted that the father’s obligation to support his child is in no way limited, impaired or restricted by the divorce decree. Mrs. Bernstein testified that at the time of the second hearing'he was paying $18.00 per week for such support.

Ill support of her charge that the divorce was the result of fraud, duress and coercion plaintiff testified as follows: That she was unaware at the time that such a divorce decree would preclude any later claim for alimony; that her married life with defendant had been one of physical and mental abuse, he having “kicked and knocked me”; that on the question of divorce “Mr. Bernstein was inconsistent”. He said “he did not want to be a divorced man and divorces cost money”; that her husband represented himself as being insolvent and she believed him; that he made no property settlement with her; that at the time of and prior to the divorce she was ill and was undergoing treatment from psychiatrists at Meno rah Hospital Clinic— from both doctors and a social worker, each of whom urged and insisted that she get a divorce — else she could not be cured of her illness; that she was afraid of her husband; that he deserted her and from correspondence with him she learned that all he wanted was a divorce. She expressed her belief that Mr. Bernstein was not insolvent at the time of the divorce, but submitted no facts proving such a conclusion. She stated that some years after the divorce she learned that defendant’s father “recently died and left four life insurance policies” and defendant assumed his father’s “position of responsibility and takes care of the books of this million and a half dollar concern in New York”. Mrs. Bernstein declared that her former husband refused to give her a “Gett” which is apparently a religious decree of divorce issued by the Jewish church hierarchy, but that he had remarried. It appears from plaintiff’s testimony that she has had defendant “investigated” for several years, has checked him with Internal Revenue and brought him into court for child support on numerous occasions.

For plaintiff to prevail in the present controversy she must establish two propositions — one of law and one of fact. She must show that the court possesses jurisdiction to grant her prayer to annul or set aside the judgment of divorce and she must show that factually she is entitled to such relief.

Under Section 452.110 RSMo 1959, V.A.M.S., “No petition for review of any judgment for divorce, rendered in any case arising under this chapter, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases”. This statute has long been in effect in this state and is the fixed public policy.

In Jones v. Jones, Mo.App., 254 S.W.2d 260, 261, 262, the husband brought suit to set aside a divorce decree upon the ground of fraud in its procurement. The gist of his complaint was that although he knew his wife’s suit was pending, they had resumed cohabitation, he believed they had become reconciled and it was a fraud upon him and the court for her to proceed with the action, thereby depriving him of his meritorious defense. His action was dismissed and on appeal the court said: “It is well established that equity has jurisdiction to grant relief against a judgment upon the ground of fraud in its procurement so long as the complaining party is able to show that he himself was free from fault, neglect, or inattention to his case. But for the fraud to have existed in the procurement of the judgment, it must have related, not to the propriety of the judgment itself, but to the manner in which the judgment was obtained. In other words, the fraud must have been extrinsic or collateral to the matters which either were or could have been presented and adjudicated in the original proceeding, and not merely intrinsic in the sense of having pertained to the merits of- the cause upon which the judgment of the court was rendered. In short, it is not the province of this feature of equitable jurisdiction to afford the losing party a retrial of matters either tried or concluded by the original proceeding, but instead relief is limited to those instances where the fraud was of such a character as to have forestalled an opportunity for the fair submission of the controversy”.

In McCarty v. McCarty, Mo., 300 S.W.2d 394, 400-401, James McCarty had been granted a divorce from his wife Betty Jane McCarty. After the decree had become final Mrs. McCarty brought suit to set aside the divorce and to have declared null and void a warranty deed and a property settlement executed prior to the divorce but in contemplation thereof. On appeal the court refused to set aside the divorce and disclaimed jurisdiction to do so but rescinded the property settlement, holding that an unfair advantage had been taken of her and she had been overreached. On the question of jurisdiction to set aside a divorce decree, the court, after reference to Section 452.110, supra, disallowing any petition for review of a judgment of divorce, said: “In the above referred to cases cited by appellant the fraud consisted of wrongful acts committed by the plaintiff in a divorce suit for the purpose of causing the court to accept jurisdiction of the case improperly, or which caused the defendant therein to give up the right to defend the action when she otherwise would not have done so. Those acts were held to constitute fraud in the procurement of the divorce extrinsic to the matters which were or could have been adjudicated at the divorce hearing. Such conduct has generally been recognized as grounds for a court of equity to set aside the judgment for divorce. Dorrance v. Dorrance, 242 Mo. 625, 148 S.W. 94; Jones v. Jones, 218 Mo.App. 301, 272 S.W. 1038; Hairs v. Hairs, 222 Mo.App. 941, 300 S.W. 540; * * * See also Grages v. Grages, Mo.App., 184 S.W.2d 749(1) and Crain v. Crain, Mo.App., 205 S.W.2d 897(2)”.

Among others, appellant relies upon Cobb v. Cobb, 43 S.D. 388, 179 N.W. 498, which holds that the husband’s false representation inducing the wife to sue for divorce, where no alimony was allowed, could be ruled a fraud upon the court so as to confer jurisdiction to vacate the judgment; to Dennis v. Harris, 179 Iowa 121, 153 N.W. 343, where it was held jurisdiction existed to set aside a divorce decree and for (a) increase in alimony or (b) distributive share in husband’s estate, where the wife acted under “duress” of her husband in bringing the original suit, and to Lake v. Lake, 124 App.Div. 89, 108 N.Y.S. 964, where the court held that allegations of coercion impelling a wife to procure divorce were sufficient to raise question as to annulment of the divorce. However, these are not Missouri cases and those states apparently do not have a statute similar to ours.

Mrs. Bernstein asks that the divorce be annulled because: 1. She was unaware that such a decree would forever preclude her from securing alimony. We are not sure this is true, but even if it is, her husband made no representations to her as to this matter and she had her own personal and private lawyer at the time. 2. She says her husband was inconsistent —“didn’t want to be a divorced person”, but from correspondence she “learned all he wanted was a divorce”. This shows neither fraud nor coercion. 3. She was afraid of him and she was sick. Such facts prove neither fraud nor coercion. Moreover, the urging that she get a divorce seems to have come from the psychiatrists and social worker, with no showing that their advice was prompted by Mr. Bernstein.

Appellant also says her husband represented himself to be insolvent and that he was not and is not insolvent. This question of alimony, which appears to be the chief, if not the sole cause of plaintiff’s discontent, was not adjudicated in the original proceeding nor could it have been since defendant was neither personally served nor did he appear generally. Beckmann v. Beckmann, Mo.App., 218 S.W.2d 566; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

In the matter before us defendant has never in either case taken any affirmative court action. The wife has always been the movant. In the original divorce action she was represented by counsel. She knew or should have known that she could not receive alimony upon service by publication and that she was not going to receive judgment for alimony. All she sought at the time was a divorce and custody of the child. It was held in Edson v. Fahy et al., Mo., 330 S.W.2d 854, 859, that a petition to set aside a divorce decree is defective if it fails to allege that petitioner was free from fault, neglect or inattention. Moreover, her factual testimony as to the fraud allegedly perpetrated upon her, excepting her husband’s request that she get a divorce and his representation that' he was insolvent, arose out of her illness and the advice given her by the medical and social welfare worker whom she was patronizing. On the question of defendant’s financial status, her testimony, taken at face value, does not show what assets defendant possessed, if any, at the time of the divorce and the showing as to his present worth is at least vague and indefinite and came as an inheritance from his father years after the divorce judgment.

Even if it were determined that a court has jurisdiction to consider setting aside a divorce decree on these allegations and on behalf of a movant who secured the decree herself, and we have been cited to no Missouri case so holding, we do not believe plaintiff here can prevail on the merits. More than six years after the event, brought about so far as court action is concerned, by herself, with the advice of counsel, and where she secured all she asked for, she now petitions for an annulment of that judgment. Why does she do this? Solely for the purpose and with the hope of obtaining alimony from defendant. She says the court should grant her this boon because her husband urged her to get a divorce, told her he was insolvent, and she has now learned that he is possessed of property derived largely through inheritance from his father’s estate, which was made up in part of life insurance policies. These charges, even if accepted as wholly true, do not amount to such a showing of fraud or coercion as would either justify or authorize a court of equity to overturn the decree. We believe and hold that plaintiff’s case must fail on the merits.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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


author: STANLEY, Commissioner.

text:
    Angeline SEAMON, Adm’x of Estate of Ralph Seamon, Deceased, Appellant, v. Katherine Anne BOLTON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    John C. Anggelis, Lexington, for appellant.
    Stoll, Keenon & Park; Miller, Griffin, Marks & Stephens, Lexington, for appel-lee.
   STANLEY, Commissioner.

This is an action by the administratrix of the estate of Ralph Seamon for damages for his death resulting from injuries sustained .in an automobile intersection collision attributed to the negligence of the defendant, Katherine Anne Bolton, seventeen years old, driver of an automobile owned by the Greyhound Rent A Car Company. Katherine’s father, Dr. Ralph Bolton, was made a defendant on the ground that he had signed her application for a driver’s license and her negligence was imputed to him by the provisions of KRS 186.590. At the conclusion of all the evidence, the court peremptorily instructed the jury to find for the defendants. The plaintiff appeals.

The appellant insists that there was a conflict in the evidence, and reasonable minds could differ as to the conclusions to be drawn therefrom. She stresses the point that the court at first overruled the motion for a peremptory. It was granted upon reconsideration.

The accident occurred at the intersection of Mill and Second Streets in Lexington. Mill is a north-south street and was at the time restricted to one-way southbound traffic. Second is an east-west street and was restricted to one-way westbound traffic. The deceased, Dr. Seamon, a young veterinarian, was driving a Plymouth station wagon south and Miss Bolton was driving a Cadillac westbound. The front of her car struck the station wagon behind the left rear door. It crashed sideways into a utility pole at the southwest comer of the intersection and was battered in. Dr. Seamon died five days later as a result of his injuries.

Two witnesses in separate cars parked on Mill Street just north of the intersection were engaged in reading some papers when their attentions were attracted by the crash of the collision. Another witness was in the act of putting a coin in a parking meter on Mill Street near the intersection. She testified that she heard “this car go by” (apparently the Seamon car) at a “normal rate of speed” and then heard the crash. Katherine Bolton was called by the plaintiff to testify as if on cross-examination. Certain facts not material here were elicited from her. She stated she was driving in the right-hand lane on Second Street and remembered there was an automobile parked in that lane and another was in the act of parking. She slowed down or perhaps stopped and then went around it. It was raining. She testified her windshield wipers were operating, and she had a clear vision ahead. She noticed the traffic light on Broadway (a block beyond Mill Street) was red, but she did not see any car approaching on Mill Street, although she was looking toward the intersection. She did not see the Seamon automobile until the instant she struck it. She then swerved around to the back of it and her car went into a spin. It was developed on examination by her attorney that she was traveling 20 or 25 mph.

Miss Bolton, when called as a witness on behalf of herself and other defendants, gave substantially the same evidence regarding the collision, the only material difference being that here she testified that when she first saw the Seamon car she was “at the end of the sidewalk” and in an instant struck the car in the middle of the Mill Street intersection.

Mrs. Julian Elliott, hostess of the John Hunt Morgan memorial home, which is located on the northwest corner of the intersection, testified that she was standing inside at the front door facing Mill Street and looking through a glass side window. The door is about twenty feet from the sidewalk. She saw the station wagon pass. Said she: “I was a little frantic when I saw how it was traveling as it approached Second and Mill because it did not stop * * * just went straight on through. I went to the big window over in the corner to see better and about that time I heard this tremendous crash and I saw the station wagon that had gone by turned around toward the East.” The “big window” faces Second Street. The witness further stated that the driver was “looking straight ahead, and he went right on through.” She was “positive” of this. The automobile was going at “a moderate speed.” She did not see the Cadillac before the collision.

There was a “stop” sign on Mill Street at the edge of the northwest corner.

Miss Bolton was on a favored street and had the right to proceed in reliance of a car approaching on Mill Street yielding the right of way, although of course, she could not do so entirely oblivious to imminent danger of a collision or without exercising due care commensurate with the situation to avoid a collision. Let it be assumed there was sufficient evidence to take the question of her negligence to the jury. On the other hand, the decedent was required by the statute to stop and yield the right of way to the car on Second Street. Even if he momentarily stopped, he did not yield to the car which was then so close as “to constitute an immediate hazard.” KRS 189.330 (4) ; Central Petroleum Co. v. Wright, Ky., 290 S.W.2d 465.

The evidence in this record is clear of contradiction. We cannot accede to the appellant’s contention that there were circumstances or inferences to be drawn from the testimony which a jury might regard as affecting its weight and swing the balance to a logical conclusion of negligence on the part of the defendant’s driver and absence of contributory negligence on the part of the plaintiff’s decedent. There was nothing indecisive about the testimony nor anything having a tendency to affect the credibility of any part of it. The violation of the statute by the deceased in failing to obey the stop sign was negligence as a matter of law. We recognize that that of itself is not always or necessarily determinative, for the question of causal relation may be the determining factor. We cannot agree with the appellee that there was room for reasonable minds to differ as to the proximate cause of the accident. Of course, so far as the plaintiff’s decedent is concerned, it had to be only a contributing factor if the defendants were negligent.

There was no place in this case for the application of the last clear chance rule. Severance v. Sohan, Ky., 347 S.W.2d 498.

We conclude the ruling of the trial court is correct. Mullen v. Coleman, 297 Ky. 351, 179 S.W.2d 600; Romans v. Duke, 313 Ky. 157, 230 S.W.2d 439; Vaughn v. Jones, Ky., 257 S.W.2d 583; Manning v. Claxon’s Ex’x, Ky., 283 S.W.2d 704.

Judgment affirmed.


author: MONTGOMERY, Judge.

text:
    Bessie L. STEWART et al., Appellants, v. Eugene JACKSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    P. H. Vincent, Ashland, for appellants.
    G. B. Johnson, Jr., David O. Welch, Dysard, Dysard & Johnson, A. W. Mann, Ashland, for appellees.
   MONTGOMERY, Judge.

Bessie L. Stewart and Zella Stewart sued to recover damages to their real estate from the alleged maintenance of a nuisance by Eugene Jackson. They appeal from a judgment based on an adverse jury verdict. A previous appeal from an order denying an injunction was dismissed. Stewart v. Jackson, Ky., 311 S.W.2d 568.

Under the points and authorities in appellants’ brief, two errors are assigned: (1) The verdict of the jury is not supported by the evidence and is contrary to law; and (2) the instructions are erroneous. On page 3 of the brief the trial court’s rulings on the competency and incompetency of certain evidence are assigned as errors. Counsel has been content to state that certain evidence was erroneously admitted or denied admission, without giving any reasons for such statements and without making argument in support thereof.

There are two rules which justify ignoring such claimed errors. First, such questions were not embraced in the statement of points and authorities of the appellants’ brief as required by RCA 1.210, James v. Holt, Ky., 244 S.W.2d 159; and second, questions presented in appellants’ brief unsupported by argument will be deemed meritless and will not be considered. Craft v. Hall, Ky., 275 S.W.2d 410; Herrick v. Wills, Ky., 333 S.W.2d 275.

Similarly, for the latter reason, the second ground of the appeal based on the alleged erroneous instruction is not considered. The only enlightenment contained in the brief on the alleged erroneous instruction is quoted: “Another reason why this case should be reversed is that the court committed error in its instruction to the jury.” This is followed by the statement that the court instructed the jury, quoting the instruction. The appellants’ brief has been scrutinized. Nowhere therein is there any statement or argument in support of this claimed error. This being the case, the Court is not justified in considering such assignment of error. It may be added that such questions except in extraordinary cases will not be considered on a petition for rehearing either, since the consideration is then limited to matters argued on the appeal. RCA 1.350(b).

There remains for consideration the question of the sufficiency of the evidence to support the verdict. Appellants complain that the operation of a parking lot by appel-lee Jackson constitutes the maintenance of a nuisance.

Jackson began the operation of the lot in June 1955 on property owned by him at the corner of 17th Street and Central Avenue in Ashland, Kentucky. Each appellant owns a residence adjoining the lot. The Bessie L. Stewart residence faces 17th Street and to the south of the parking lot. Zella Stewart’s residence faces Central Avenue and to the east of the lot. Bessie’s property is bounded on the right by the double tracks of the Chesapeake & Ohio Railroad. Her house faces the rear, of the A&P foodstore and its loading platform and parking lot. Zella’s property is bounded on the rear by the Chesapeake & Ohio tracks.

The neighboring community is described as an extremely busy and noisy commercial section which is less than two blocks from downtown Ashland. Other parking lots, service stations, large groceries, and heavy traffic are present in the neighborhood.

Appellants complain of the dust, noise, and odor which they seek to attribute to Jackson’s operation of the parking lot. In considering the sufficiency of the evidence, appellants in their motion for a new trial complained that the verdict was the result of passion and prejudice and that it was not sustained by sufficient evidence and was contrary to law.

There is nothing in the record or in appellants’ brief to indicate that the verdict was the result of passion or prejudice on the part of the jury. As to the sufficiency of the evidence to sustain the verdict, this question was not raised at the conclusion of the introduction of the testimony. No motion for a directed verdict was made by appellants. This failure constitutes a waiver of the right to challenge the sufficiency of the evidence by a motion for a new trial or on appeal. Claspell v. Brown, Ky., 332 S.W.2d 851.

There being a failure to preserve a timely challenge to the sufficiency of the evidence, and a failure to point out any error in the instructions, the verdict is that of a properly instructed jury. An examination of the record discloses that there was sufficient evidence to support the verdict.

Judgment affirmed.


text:
    NATIONAL LIFE & ACCIDENT INSURANCE COMPANY OF NASHVILLE, TENN., a Corp., Appellant, v. Roger BOND, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    Stoll, ICeenon & Park, Lexington, for appellant.
    Paul H. Mansfield, Charles Palmer, Lexington, for appellee.
   STANLEY, Commissioner.

The appeal granted upon motion is from a judgment for $1,600 on an industrial insurance policy issued by the appellant on February 10, 1958, on the life of a baby, Donnie J. Bond, then 48 days old, with the death benefit payable to his father, Roger Bond, who made the application. The insured died November 4, 1958, when he was eleven months and ten days old. In this suit to recover on the policy the company pleaded two affirmative defenses. They were stricken by the trial court on plaintiff’s motion. Thereafter summary judgment for the plaintiff was rendered.

Paragraph 2 of the answer set up this provision in the policy: “Effective date— This policy shall take effect on the Date of Issue, provided the Insured is then alive and in sound health, hut not otherwise.” It was pleaded that “the insured Donnie J. Bond was not in sound health for the reason that he was at such time suffering from and afflicted with a disease or condition known as mongolism, a congenital heart defect or disease, asthma, bronchitis or a respiratory infection or disorder and a disease or condition known as cyanosis, all of which rendered and caused the insured to be of unsound health on the Date of Issue of said policy.” It was further alleged that no medical examination of the insured was required or made and that the defendant had no knowledge of the insured’s condition, as described, and if it had such knowledge, the policy would not have been issued.

In Western & Southern Life Ins. Co. v. Downs, 301 Ky. 322, 191 S.W.2d 576, on authority of previous cases of this kind, it was held that proof that the insured was not in good health when the policy was delivered is sufficient to avoid liability under it. It was error to strike the plea from the answer.

The other defense stricken was that the application for the insurance had been made and signed by the beneficiary, the plaintiff, and he had falsely represented that the child was (1) in good health, (2) had not had any illness or injury in the past five years, (3) had never had heart disease or asthma, (4) was not “deformed or paralyzed,” (5) had never had any illness or disorder or any injury to the brain, lungs, spine or nervous system. The defendant averred that it issued the policy in reliance upon the representations as true, whereas they were false because of the insured’s condition as above described.

No copy of the application was attached to or made a part of the policy. This is an “Industrial” life insurance policy, as defined by KRS 304.872. The statute, KRS 304.655(1), relating to the inadmissibility in evidence of an application for insurance if no copy was attached to or otherwise made a part of the policy when issued and delivered, contains this qualification: “This provision shall not apply to industrial life insurance policies.” The qualification became effective in 1950, so that our prior opinions to the contrary are not controlling.

The division of the comprehensive insurance code (enacted in 1950) relating to “Industrial Life Insurance,” KRS 304.871-304.907, does not contain a provision that an application for insurance is inadmissible in evidence. KRS 304.876 does provide that the policy shall constitute the entire contract unless a copy of the application is made a part, in which event the policy and the application constitute the contract. Reading together 304.655(1) and 304.876, evidence of misrepresentations made in an application, though not attached to the policy, is admissible and may prove sufficient to invalidate the contract. We think the trial court was in error in striking this defense.

The appellee justifies the summary judgment upon the ground of affidavits stating facts which he claims constituted an estoppel or waiver on the part of the appellant. The record does not indicate any affidavits were filed except the statement of the judgment that it was being rendered on “the pleadings and affidavits submitted.” No affidavits appear in the record. Since the affirmative defenses had been held not sustainable as a matter of law, there remained in the case only the complaint and, as stated above, a traverse of a material allegation. In any event, we must, of course, ignore statements in the brief which are not supported by the record.

Judgment reversed.

      . Appellant says the trial court’s decision was rested upon Life Ins. Co. of Georgia v. Chenault, Ky., 252 S.W.2d 851, and Life and Casualty Ins. Co., of Tenn. v. Davis, Ky., 280 S.W.2d 543. The former, though decided in 1952, involved a policy issued before the 1950 Act went into effect (as an examination of the record reveals), and the latter case, a per curiáis opinion delivered in 1955, rested upon the absence of a limitation upon the soliciting agent’s authority in the application.


author: STEWART, Judge.

text:
    Josephine SCHMIDT, Appellant, v. James W. HALPIN, Adm’r., etc., and Charles Edward Halpin, Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    E. H. Walton, Covington, for appellant.
    William B. O’Neill, Cincinnati, Ohio, Ralph P. Rich, Covington, for appellees.
   STEWART, Judge.

This appeal is from a declaratory judgment entered on motion for summary judgment which determined that appellee, Charles Edward Halpin, inherited the estate of his deceased son, Charles C. Halpin, amounting to $10,653.51. The adjudication of the trial court rests upon its interpretation of the residuary clause of the will of the decedent, which reads:

“Item II. All the rest, residue and remainder of my estate, whether it be real, personal, or mixed, and wheresoever situated, which I may own or have the right to dispose of at the time of my death, and all property over which at the time of my death, I shall have any power of appointment, general or special, I give, devise and bequeath to my wife, Anna Mae Hal-pin, to have and to hold unto herself, her heirs and assigns forever, in fee simple.”

In 1959, Anna Mae Halpin died without issue and her will, admitted to probate in the Kenton County Court, left her entire estate to Charles C. Halpin, her surviving husband. A little over a year later, in 1960, Charles C. Halpin, who had remained a widower, followed his wife in death. He had no children during his lifetime; he left his father, Charles E. Halpin, ap-pellee herein, as his next of kin and sole heir at law.

This action was precipitated when appellant, Josephine Schmidt, Anna Mae Hal-pin’s mother, made claim to all the property of which Charles C. Halpin died possessed or seized. James W. Halpin, the administrator of the estate of Charles C. Halpin with the will annexed, initiated this action for a declaration of rights. He is a nominal party to this litigation.

There being no controversy of fact presented in this case the issues to be considered will be limited to resolving the questions of law raised. That summary judgment may he granted in a declaratory judgment action is conceded by all the parties. See CR 56.01.

Although Charles C. Halpin named his wife, Anna Mae Halpin, as legatee and devisee in his will, the gift he undertook to bestow lapsed when she predeceased him. Under KRS 394.500 it is provided that, unless a contrary intention appears from the will (and none appears in the will under scrutiny), “real or personal estate, comprised in a devise incapable of taking effect, shall not be included in the .residuary devise contained in the will, but shall pass as in case of intestacy.” Our cases uniformly hold, in conformity with this statute, that any property which is devised or bequeathed to a person who dies before the testator passes at the testator’s death as if no will had been made. See Smith v. Bowling Green Bank & Trust Co., Ky., 314 S.W.2d 538; Garrard v. Kendall, Ky., 121 S.W. 997.

The only exception to the rule that property left by will to one who predeceases a testator descends as intestate property is provided by KRS 394.400, which reads: “If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.”

It should be emphasized that this statute restricts the taking of an otherwise lapsed devise or bequest to the issue of a devisee or legatee who has died before the testator. In some of the older decisions of this Court the word “issue” was construed as synonymous with the terms “heir” or “descendant”; but that construction has been considered to be too broad and has been repudiated. Slone v. Mason Coal & Coke Co., 168 Ky. 697, 182 S.W. 929. The proper meaning of “issue”, as used in the statute, is that it includes only the lineal descendants of the legatee or devisee, and not the collateral or ascending heirs. As appellant, Josephine Schmidt, in the eyes of the law must be classified as an ascending heir of her deceased daughter, Anna Mae Halpin, she cannot qualify to take under the will as the living issue of a deceased devisee or legatee. See Hodge v. Lowell’s Trustee, 262 Ky. 509, 90 S.W.2d 683; Dillender v. Wilson, 228 Ky. 758, 16 S.W.2d 173; and Bourne’s Executor v. Edwards, 223 Ky. 35, 2 S.W.2d 1053.

Nor does the addition of the language “her heirs and assigns forever, in fee simple” to the devise and bequest to-Anna Mae Halpin in the will prevent the lapse, nor will such phraseology operate to vest any interest in Charles C. Halpin’s-estate in appellant, Josephine Schmidt. It has been held that the expression “heirs”’ as employed in a will is a word of limitation and not of purchase. In other words,, it is used to describe the quantity of interest and not to designate a party entitled to this interest. In the instant case, this is obviously the situation as the use of the word “heirs” is followed by the words “fee simple.”

Appellant argues that the intent of the testator is the primary factor to be considered in this controversy; that since Charles C. Halpin’s will remained in full force for 13 months after his wife’s death and until his own death, he must have wished his estate to pass, under the instrument, to his wife’s mother, who was her only heir; and that if he had intended for anyone else to have his property, he would have destroyed or altered his will in order to carry out such a change.

These arguments are wholly unrelated to the issues we have addressed ourselves to which are the only ones that need be considered in the determination of this case. Also, the trial court properly ruled that the item of the will in question was unambiguous, so that appellant was not entitled to introduce extrinsic evidence to attempt to “explain” it. See Cambron v. Pottinger, 301 Ky. 768, 193 S.W.2d 412.

We feel we should state in conclusion that the learned trial judge wrote an excellent opinion containing his findings of fact and conclusions of law which has been of the utmost assistance.

Wherefore, the judgment is affirmed.


author: PER CURIAM.

text:
    Elijah MESSER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    William R. Forester, Barbourville, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Elijah Messer was convicted of a second violation of the local option election law. He was fined $100 and sentenced to sixty days’ confinement in jail. He moves for an appeal. The record and briefs have been considered. No prejudicial error has been found.

The motion for an appeal is overruled and the. j udgment stands affirmed.


author: PALMORE, Judge.

text:
    James Jackson MULLIGAN et al., Appellants, v. FIRST NATIONAL BANK & TRUST CO. OF LEXINGTON, Ex’r, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.

      Robert M. Odear, Stoll, Keenon & Park, Lexington, for appellants.
    John L. Davis, Lexington, for First Nat. Bank & Trust Co.
    Frank L. McCarthy, Lexington, for Mrs. Robert E. Petsch.
    Henry T. Duncan, Allen, Duncan, Duncan & Arnold, Lexington, Shackelford & Burnam, Richmond, for Willoughby Mulligan and Marion Ross.
    Gess, Mattingly, Saunier & Atchison, Lexington, for American S. P. C. A.
   PALMORE, Judge.

The will of Mary E. Stevenson, written in 1953, left the residue of her estate in trust for the Lexington Humane Society and provided that if this gift should fail the money was “to be divided equally between the National S. P. C. A. and Defenders of Fur Bearers — Washington, D. C.” In an action brought by the executor to construe the will the Fayette Circuit Court found these provisions to be incapable of execution and held that the funds in question passed by intestacy. On appeals by the Lexington Humane Society and the Defenders of Furbearers this court affirmed the judgment as to the Lexington Humane Society but held that the gift over “to the Defenders of Furbearers and the ‘National S. P. C. A.,’ should be given effect.” See Defenders of Furbearers v. First National Bank & Trust Co., Ky.1957, 306 S.W.2d 100.

After the mandate of this court was issued but before correction of the judgment the American Society for the Prevention of Cruelty to Animals, referring to itself as the party “herein sued and named as ‘National Society for the Prevention of Cruelty to Animals,’ ” moved the circuit court to modify its judgment pursuant to the mandate and, specifically, to award it one-half of the residuary estate. Some two weeks later this organization (which we shall hereinafter call the American Society) filed another motion in the circuit court asking relief from the original judgment under CR 60.02. The apparent purpose of the latter motion was to cover the possibility of the American Society’s being treated as having been a party to the litigation prior to the first appeal and thus bound by the original judgment because it did not appeal from it. Cf. SB C.J.S. Appeal and Error § 1920, pp. 414 — 415; May v. Pikeville Nat. Bank, 1927, 218 Ky. 575, 291 S.W. 768; Wilhelmi v. Berns, 1938, 274 Ky. 618, 119 S.W.2d 625.

The motion for relief under CR 60.02 was supported by affidavits setting forth most of the pertinent facts hereinafter narrated. There were no counter-affidavits. After oral arguments the trial court entered an order and judgment correcting the original judgment and specifically reciting that the American Society is entitled to half the residuary estate. From this judgment the parties who would take by intestate succession appeal.

The record does not reveal whether it was the circuit court’s theory that the American Society (a) was a party to the suit but its rights were protected by the appeal of its co-legatee, Defenders of Fur-bearers, (b) was a party to the suit and, though not protected by the co-legatee’s appeal, was nevertheless entitled to relief under CR 60.02, or (c) was not a party prior to the original judgment and appeal but entered the proceeding by virtue of its motions subsequent to the appeal. At any rate, as we analyze the case American Society was not a party before the first judgment and appeal and therefore was not prejudiced by any failure to appeal, but neither did its subsequent motions constitute an effective intervention so as to authorize a judgment for or against it

It will be recalled that the will mentioned the “National S. P. C. A.” In lieu of this .designation the executor’s suit to construe the will named as a nonresident defendant .a “National Society for the Prevention of : Cruelty to Animals,” address unknown. Evidently, however, there is not any organization by that name (nor by the name of “National S. P. C. A.”). The warning order attorney sent his letter of notification to “National Society for the Prevention of Cruelty to Animals, 441 East 92d Street, New York 28, New York.” The address was that of the American Society, which' accordingly received the letter. Its general manager, Warren McSpadden, responded by sending the warning order attorney an affidavit outlining the history and powers of the American Society; stating that to the best of his knowledge and belief there was no “National” Society and that in his opinion the testatrix intended by “National S. P. C. A.” to name the American Society ; and indicating that the latter society would not oppose the claim of the Lexington Humane Society but, in the event the Lexington Humane Society could not have the funds, would like to see that they were used for the benefit of animals either in New York or in Kentucky, as the court might determine.

At the American Society’s request the warning order attorney filed the affidavit in the circuit court proceeding. There was no certificate of service, and the record contains no indication that the various adverse parties responded in any way to the issues implicit in the substance of the affidavit. American Society was not represented by counsel and did not further participate in the action until it learned, quite by accident, of this court’s reversal of the judgment on the first appeal. That judgment made no reference to American Society.

Though a defendant be misnamed in a suit, if he is properly served with process and does not plead the misnomer he is bound by the judgment. However, it is essential that the service should have been on the intended defendant; the case must be one of misnomer and not mistaken identity. 1 Freeman on Judgments 901-905 (§§ 414-415). If there was a misnomer in this case, as between “National” and “American,” it was in the will, not in the suit. “National S. P. C. A.” may have been nonexistent, yet it was the defendant the executor intended to sue. To say that American Society was the intended defendant would assume, without its having been litigated, the answer to the question of whether the testatrix meant “American” when she said National,” which, as it develops, is one of the major substantive issues in the construction of the will. As it cannot be said that the American Society was the party the executor intended to sue, and it was not in fact named as a defendant, its receipt of the warning order notice was a case of mistaken identity and the process was ineffectual. And since it was not a party to the action it could not enter an appearance. Plummer v. Crain, 1827, 5 T.B.Mon. 377, 21 Ky. 377; 6 C.J.S. Appearances § 5, p. 12.

Had the McSpadden affidavit been treated as an intervention by American Society and the issues tried accordingly by express or implied consent of the parties, it might well have been argued that the formal requirements of CR 24 were waived. But that did not occur. Indeed, this case illustrates the value of orderly rules by providing a good example of what happens when they are not followed. One affidavit lodged anomalously in the record is variously claimed to constitute an answer, an entry of appearance, or an intervening complaint, as it suits the parties to argue. It is only by measuring these claims against the rules that we are able to say it is none of them.

An application to intervene must be accompanied by a pleading setting forth the claim or defense for which the intervention is sought. CR 24.03. Neither of the motions made subsequent to the first judgment and appeal can be treated as an intervention. These motions were resisted by oral argument, but the adversary parties were deprived of the opportunity to respond in such manner as the Civil Rules permit in the case of pleadings.

From what we have said it follows that CR 60.02, by which “a party or his legal representative” may be relieved from a judgment, has no application to this case, because American Society was not a party. However, the facts and circumstances on which American Society relied for relief in its motion under that section are relevant to the question of whether a motion to intervene would now be timely. Cf. Clay, Kentucky Civil Rules, CR 24.01, p. 250; Monticello Electric Plant Bd. v. Board of Education, Ky.1958, 310 S.W.2d 272.

Whether “National S. P. C. A.” as it appeared in the will meant “American Society for the Prevention of Cruelty to Animals” is a question that has never been litigated. That is the one salient fact standing clear amid the confusion of this case. In undertaking to settle the issue prematurely the judgment was in error. Since American Society thus far has not properly asserted its claim, either by intervention or independent suit, it cannot have judgment.

The judgment is reversed with directions to strike so much thereof as adjudges the appellee entitled to distribution of half the residuary estate of Mary E. Stevenson, deceased, and the cause is remanded for further proceedings consistent with this opinion.


author: CULLEN, Commissioner.

text:
    Robert J. GRISWOLD et al., Appellants, v. CITY OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.

      Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville, for appellants.
    No appearance for appellee.
   CULLEN, Commissioner.

This appeal involves procedures under the Community Urban Renewal and Redevelopment Act of 1950, KRS 99.330 to 99.510.

On March 29, 1961, the Board of Aider-men of the City of Louisville adopted a resolution stating that a designated riverfront area of the city is a slum, blighted, deteriorated or deteriorating area “appropriate for” an urban renewal project, approving the undertaking by the city of surveys and plans for such a project, and approving the making of a request to the appropriate federal agency for concurrence in the commencement of surveys and plans. Thereafter the city gave notice of a public hearing on the project to be held on April 7, 1961, the stated purpose of the hearing being “to consider the undertaking of” the project.

On April 28, 1961, a group of owners of property in the designated area filed in the circuit court an appeal from the resolution of March 29. The statement of appeal made reference only to the resolution and to the fact that a hearing was held on April 7. The circuit court dismissed the appeal on the ground that it was premature. The property owners have appealed to this Court from the judgment of dismissal.

The appeal to the circuit court was filed under purported authority of KRS 99.390. That statute provides that a party of record at any hearing conducted by “the agency” (the city itself may be the agency) who is aggrieved by any action of or decision by the agency may appeal from such action or decision to the circuit court, such appeal to be taken within 30 days after notice of such action or decision.

KRS 99.370 specifies the procedures that must be followed for adoption of a development plan. This statute states that the following steps are to be taken after the holding of a public hearing:

1. The agency must make and certify to the board of aldermen the development plan, with estimates of costs and revenues.
2. The board of aldermen must make certain findings of fact, including a finding that the area covered by the plan is a slum or blighted area.
3. The board of aldermen must approve the development plan.

We think it is clear that KRS 99.390 contemplates appeals only from actions taken or decisions made after the public hearing has been held. Not only does the wording of KRS 99.390 make this clear, but under the provisions of KRS 99.370 it is apparent that no effectuating action or decision can be taken or made until after the hearing.

The record in this case does not show that any action was taken or decision made after the public hearing. When and if there is such action or decision the parties of record at the hearing will have 30 days after notice thereof in which to take an appeal.

It is obvious to us that the resolution of March 29 was merely a preliminary step designed to put the development project procedures in motion and it did not constitute such an action or decision as is contemplated by KRS 99.370 and 99.390.

It is our opinion that the circuit court properly dismissed the appeal.

The judgment is affirmed.


author: WILLIAMS, Judge. PALMORE, Judge

text:
    GREYHOUND CORPORATION et al., Appellants, v. Shelby HOUNSHELL, Appellee. GREYHOUND CORPORATION et al., Appellants, v. Ella MILLER, Administratrix of the Estate of Hargis Miller, Appellee.
    Court of Appeals of Kentucky.
    April 21, 1961.
    Rehearing Denied Dec. 8, 1961.
    Stoll, Keenon & Park, Lexington, Ollie J. Cockrell, Kash Williams, Jackson, for appellants.
    J. Douglas Graham, Campton, for appel-lees.
   WILLIAMS, Judge.

In a collision between a Greyhound bus and a Studebaker automobile driven by Hargis Miller and in which Shelby Houn-shell was a passenger, Miller was killed and Hounshell suffered severe injuries. Miller’s administratrix and Hounshell brought actions for damages against The Greyhound Corporation and the bus driver. The actions were consolidated for trial and the jury returned a verdict of $10,000 for Miller’s administratrix and $25,000 for Ploun-shell. The Greyhound Corporation and the bus driver have appealed from the judgments entered upon the verdict. Their primary contention is that their motions for a directed verdict, and for judgment notwithstanding the verdict, should have been sustained.

Hounshell was the only eyewitness to the accident to testify for the plaintiffs. (Other witnesses for the plaintiffs gave evidence only as to the location of the vehicles and other conditions after the collision.) His testimony was that as the Miller car came out of a curve to its right, around 9:00 p. m. on a winter night, the Greyhound bus was approaching from the opposite direction, around 100 yards away, with blinding lights. Miller applied his brakes and his car went into a “slide.” The car “slid around in the road some” and when it got to within 40 or 50 feet of the bus the bus driver dimmed his lights and Miller then cut back to his side of the road. As he reached his side of the road the bus driver cut to the left and the two vehicles collided head-on. While Hounshell did not say in his direct testimony that the Miller car, as it first came out of the curve, was on its right side of the road, he did so state in a pretrial deposition which the defendants read to the jury.

The bus driver and ten passengers in the bus all testified that the Miller car came out of the curve on the wrong side of the road and continued on the wrong side to the collision. Most of them said that the bus remained on its proper side until the collision, and that the force of the collision knocked the front of the bus to the left. However, there was some testimony to indicate that the bus driver cut to the left a fraction of a second before the impact.

The position of the vehicles after the collision, and other conditions, establish convincingly that while the front end of the Miller car may have been on its right side of the highway at the moment of the collision the rear end was still on the wrong side, and that the two vehicles would have collided (although perhaps not head-on) even had the bus not been turned to the left.

As concerns the matter of lights, the bus driver at one point testified that he dimmed his lights after he observed the Miller car coming towards him in the wrong lane, and at another point he said that his lights were dimmed to begin with.

As we view the evidence there is no basis for a conclusion that the cutting of the bus to the left a moment before the collision (if it was so cut) was a proximate cause of the collision, since at the time of the cutting the collision was inevitable. So if there is any ground of liability of the bus company and driver it must be in regard to the lights.

Under KRS 189.040(5) the bus driver was required to dim his lights upon approaching an oncoming vehicle within 500 feet. There was evidence warranting a conclusion that he did not dim his lights promptly when the Miller car first came into his view less than 500 feet away. This violation of a highway safety statute would constitute negligence as a matter of law. Andricus’ Adm’r v. Pineville Coal Co., 121 Ky. 724, 90 S.W. 233; Saddler v. Parham, Ky., 249 S.W.2d 945. The question remains whether such negligence was the proximate cause of the accident. We do not think the evidence so indicates.

There is no question but that the driver of the car (Miller) . was negligent. The physical facts conclusively show he did not have control of his car after he applied the brakes. As heretofore pointed out, the collision would have occurred regardless of the position of the bus. Even if we assume that Miller was blinded by the lights of the bus, nevertheless he obviously did not have his car under such control as ordinary care required. In Harris v. Luster, Ky., 259 S.W.2d 489, 490, we said:

“ * * * A driver blinded by lights of an approaching vehicle may not assume that the road ahead of him is clear, nor must he proceed at his peril or necessarily stop, but a driver so blinded is under a duty to slacken his speed and have his car under such control in the circumstances as ordinary care and precaution suggest or require. * *

Although Miller applied the brakes to slacken his speed, at the same time- he lost control of the car and slid into the wrong traffic lane. He was in the wrong lane when the accident occurred. Had he had his car under such control as ordinary care and precaution require it would not have slid into the wrong lane when the brakes were applied. Rather it would have remained in the proper traffic lane and the two vehicles would have passed unharmed. Miller was clearly negligent by his failure to have his car under proper control, and such negligence was the sole proximate cause of the accident.

We find no merit to the other points raised by appellants as grounds for reversal.

The judgments aré reversed, and the trial court is directed to enter judgments n. o. v. in accordance with motions made by appellants. PALMORE and MOREMEN, JJ., dissenting.

PALMORE, Judge

(dissenting).

The majority opinion substitutes the judgment of this court for that of the jury in determining the following two factual questions :

(1) Whether the bus driver’s failure to dim his headlights was a causative factor in the accident.
(2) Whether Miller’s handling of his automobile upon being confronted by the “blinding lights” of the bus was negligent.

In adopting the theory that the lights were not a proximate cause because Miller did not have his car under control and was on the wrong side, hence the collision would have occurred anyway, the opinion rejects the possibility (which the jury had a right to find as a fact) that the lights were the cause of the car’s being on the wrong side in the first place.

If the majority viewpoint on the second point were predicated on the theory that there was not enough evidence to show that Miller (who did not live to testify) actually was blinded by the lights, I think it might be sound. But in holding that Miller was contributorily negligent as a matter of law it apparently construes Harris v. Luster, Ky.1953, 259 S.W.2d 489, as meaning that one who loses his bearing on the highway as the result of the negligent failure of an oncoming driver to deflect his lights is necessarily and always negligent. This construction destroys the effect of the statute requiring the dimming of lights. KRS 189.040(5). I believe the Harris case was decided on the basis of a stronger fact situation and was not intended to have such a broad effect.

Under no reasonable theory can I agree that the non-negligent passenger was not entitled to have his case submitted to the jury.

MOREMEN, J., concurs in this dissent.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Petitioner, v. Elvis J. STAHR, Judge, and Marie E. Sutton, Respondents.
    Court of Appeals of Kentucky.
    Nov. 3, 1961.
    F. D. Curry, Dept, of Highways, Frankfort, for petitioner.
    E. W. Rivers, Williams & Rivers, Padu-cah, for respondents.
   WILLIAMS, Judge.

In this original proceeding we are asked to prohibit Judge Elvis J. Stahr of the Graves Circuit Court from entering an order setting aside a judgment of the Graves County Court. Motion for a temporary order of prohibition has heretofore been sustained by this Court.

The Commonwealth of Kentucky, Department of Highways, instituted a condemnation proceeding in the Graves County Court on April 23, 1959. Judgment was entered on June 29, 1959. On January 17, 1960, Marie E. Sutton, the property owner, moved the Graves County Court to set aside the judgment. On December 13, 1960, the motion was overruled and on January 7, 1961, appeal from the order overruling the motion was taken to the Graves Circuit Court. Following a hearing Judge Stahr was about to cause a judgment to be entered which would declare the county court judgment to be erroneous and order the action remanded to the county court with directions that it enter an order sustaining a motion to set aside its judgment. As heretofore indicated, a temporary order of this Court prohibited the entry of the circuit court judgment.

The property owner’s motion to set aside the judgment of the county court was made pursuant to CR 60.02. Under certain circumstances that rule permits a court to relieve a party from final judgment upon proper motion being made within a reasonable time. Having properly proceeded under the rule, and having been denied the relief sought, the property owner made a timely appeal to the circuit court. Although ICRS, Chapter 177, sets out the specific manner in which an appeal in a condemnation case shall be taken from the county court to the circuit court, it has no application here since the appeal was from an order overruling a motion under CR 60.02.

An order of prohibition may issue from this Court in cases where the trial court (1) lacks jurisdiction or is proceeding beyond its jurisdiction, or (2) is proceeding erroneously within its jurisdiction and great and irreparable injury will result to the complaining party.for which there is no adequate remedy by appeal or otherwise. Swaim v. Reid, Ky., 342 S.W.2d 687; Murphy v. Thomas, Ky., 296 S.W.2d 469; Manning v. Baxter, 281 Ky. 659, 136 S.W.2d 1074. The property owner’s motion to set aside the judgment of the county court was overruled by that court and relief sought under CR 60.02 was denied. It has been held that an order denying such relief is ap-pealable. Hackney v. Hackney, Ky., 327 S.W.2d 570; Hardin v. Waddell, Ky., 316 S.W.2d 367. The circuit court therefore was proceeding within its jurisdiction on the appeal from the county court.

We do not reach the question of whether the circuit court was proceeding erroneously and whether irreparable injury would result, because there is an adequate remedy available by appeal. Although the judgment which the circuit court was about to enter recites that it is a final order, such recitation does not make it so. It does not finally determine the claim, and consequently is not appealable. However, the judgment of the circuit court directs the county court to set aside its judgment of June 29, 1959. After this is done another judgment will be entered by the county court. From the latter judgment an appeal may be taken to the circuit court in accordance with the provisions of KRS, Chapter 177, and from the final judgment of the circuit court appeal may be taken to this Court. All of the steps taken and the proceedings had, including the circuit court’s order setting aside the judgment of the county court, will then be subject to review by this Court. The petitioner’s remedy by appeal is adequate.

The petition for order of prohibition is denied.